Railroad workers as well as those in other occupations who are
consistently exposed to such toxic substances are often harmed by developing
serious medical conditions, such as
lung cancer and other cancers. These debilitating and devastating health effects can result in costly
medical expenses, loss of wages and earning capacity, pain, suffering,
emotional trauma for the injured and his or her family and premature death.
Health Effects of Diesel Fumes
In May 2002, the Environmental Protection Agency (EPA) issued its health assessment for diesel exhaust which found diesel particulate matter to be a "likely" carcinogen. Diesel particle exposure poses a unique threat due to its compound nature, consisting of a carbon core which acts as a magnet for numerous other toxins. The result is a hazardous mixture of fine particles, nitrogen oxides, carbon monoxide and many other toxic metals and gases.
Fine particles have been linked to a wide variety of serious health impacts, ranging from respiratory ailments such as asthma attacks to heart attacks, stroke, and premature death. A recent report of the Clean Air Task Force states that approximately 21,000 people die prematurely each year due to particulate matter pollution from diesel exposure. Approximately 3,000 of these premature deaths are due to lung cancer from these exposures, as diesel exhaust presents a lung cancer risk 7.5 times higher than the cancer risks of all other air toxins combined.
Diesel locomotives account for a significant portion of diesel emissions. The Clean Air Task Force report further states that occupational exposures to diesel are among the highest environmental exposures, primarily associated with increased incidence of lung cancer. However, a study of railroad workers suggests that diesel exposure may also have caused serious and permanent impairment to the central nervous system.
In addition to these health risks, exposure to diesel fumes may also impact an individual's immune system, disrupting the chemical signals and production of antibodies resulting in a decreased ability to recover from illness.
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Diesel emissions from trains, boats and heavy equipment would pose a bigger risk to public health than coal dust if Millennium Bulk Terminals builds its proposed coal dock west of Longview, according to an updated health assessment of the project.
The report says there would likely be an increase in the number and severity of some types of diseases related to diesel emissions.
And it calls for expanded monitoring of air quality, include stations for diesel exhaust and coal dust along transportation corridors.
These are among the findings of the Health Impact Assessment that the Cowlitz County Department of Building and Planning released at noon Monday. The study, in the works since 2015, includes a host of recommendations on how to protect the public and vulnerable neighborhoods near the rail line running to the terminal site and how to improve community prosperity.
The assessment does not have a direct role in permitting decisions. It states that it is a public health tool to help the community understand how the project would affect public health. The project itself is in jeopardy due to a mass of legal challenges and permit denials.
Millennium wants to build the largest coal export dock on the U.S. West Coast at the former Reynolds Metals Co. aluminum plant.
Wendy Hutchinson, senior vice president of external affairs for Millennium, said by email that the company will reserve comment about the study because it has not had a chance to review the assessment.
Hutchinson said, though, that Millennium has designed the terminal to protect air and water quality and fisheries. The Final Environmental Impact Statement for the project found the terminal would meet environmental standards, she said, even though the state has declined to issue a water quality certification to the project.
The health assessment focuses on neighborhoods near the proposed terminal along the BNSF Railway line in Cowlitz County. Nick Fazio, of the county Building and Planning Department, said this includes the area within a mile of the proposed site, as well as areas along the rail spurs used to transport coal.
The Cowlitz County Health and Human Services Department and the State Department of Health supervised the study, which was partly guided by a steering committee made up of 15 community members. Fazio said Millennium paid for county staff time to develop the report.
In December 2017, the committee received more than 3,000 public comments on a draft health assessment.
Many public comments voiced fears that the project would worsen lung and heart diseases and increase cancer rates in a community already suffering above-average rates of these diseases. According to the assessment, there would likely be an increase in the number and severity of some types of diseases related to diesel emissions.
The assessment states that while it is estimated more coal dust would be emitted than diesel particulate matter, it’s likely diesel emissions would have greater impacts on health because they are more toxic and finer, meaning that they can go deeper into lungs.
There are no federal standards specific to diesel particles or coal dust, but Washington designates diesel particulate matter as a cancer-causing toxic air pollutant. The health assessment states the proposed terminal wouldn’t cause the area to exceed national air quality standards for particulates, but it estimates that small particle levels would increase at some locations to 89 percent of the standard.
The terminal would require 16 mile-long trains a day — eight bearing coal, the other eight exiting empties — to transit the rail corridor from the Longview Wye to the Millennium site. About half of the diesel emissions connected to the project would come from locomotives, about 30 percent from boats and the remaining 20 percent from other equipment.
About 60 trains a day already pass through Cowlitz County on the BNSF Railway main lines.
Research has found exposure to small and large particle matter leads to declines in lung function and worsening of heart and lung diseases, according to the assessment. The effects depend on length and volume of exposure and individual’s sensitivity to particulates, the study says.
At the highest estimated diesel exposure, there would be an increased cancer risk of 50 cases per 1 million people, according to the report. (That’s five additional cases in a county of 103,000, the population of Cowlitz County.) But few people would be exposed to that level because residents don’t usually stay in their homes all day every day, according to the assessment.
Health data shows Cowlitz County residents already experience higher than average rates of death and hospitalization for some diseases related to air pollution. Adding additional risk to a community that already has health disparities becomes an “environmental justice issue,” the report says. Fazio explained that there is no official environmental justice policy, but the statement raises a question of values.
The draft recommendations suggest local government should expand air quality monitoring to include stations for diesel exhaust and coal dust along transportation corridors. It also suggests the county health department work with Millennium and the Southwest Clean Air Agency to identify opportunities to reduce diesel exhaust emissions, such as working with BNSF Railway to deploy battery-powered locomotives.
The draft recommendations state Millennium should complete studies to identify and reduce noise problems within one mile of the project site and the rail spurs leading to it.
While the health assessment and recommendations speak to the proposed terminal, the information and suggestions are also relevant even if the project didn’t exist and could apply to a different project, Fazio said.
“It’s a valuable document regardless of what happens with this individual development,” Fazio said.
Many of the recommendations make suggestions for local governments, such as identifying a long-term plan for community prosperity, workforce preparedness and supporting employers who use environmentally-friendly technology and sustainable use of resources.
Quoting Millennium, the assessment states the terminal would create about 135 permanent jobs and 1,350 construction jobs. The number of permanent positions is small relative to the area’s top employers, the report says, comparing terminal employment to a smaller retail big-box store, though with higher average wages.
Fazio said the steering committee will review the report and draft recommendations before holding a public workshop where it will finalize the recommendations. There is no set date for the workshop, but it will most likely be within the next four weeks, he said. The final recommendations will be incorporated into the health assessment and released to the public.
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March 2, 2018BNSF Railway is asking to join a lawsuit against Washington state officials who blocked plans to build a coal export terminal.
The Fort Worth-based railroad on Feb. 27 filed a request as a plaintiff to join a federal lawsuit brought by Millennium Bulk Terminals’ parent company against Washington Gov. Jay Inslee and other administration officials after permits were denied for the proposed $680 million Longview coal terminal.
In the original complaint filed Jan. 3, Lighthouse Resources Inc. of Utah claims state officials violated the U.S. Constitution’s interstate commerce clause and other federal statutes by blocking the transport of coal from its mines in Wyoming and Montana.
A coalition of five environmental groups opposed to the terminal on Feb. 27 also asked to intervene in the case on behalf of the state.
In its complaint, BNSF agreed with Lighthouse’s allegation that Director of Ecology Maia Bellon and Department of Natural Resources Director Hillary Franz, named as defendants, misused their regulatory authority to focus on a single commodity.
In September 2017 Ecology denied a water quality permit, citing increased rail traffic among nine different adverse environmental impacts. DNR denied an aquatic lands sublease in January 2017, over how potential coal dust spills would affect fish and the health of urban forest lands along the rail routes.
Millennium is appealing both decisions.
The denials, BNSF said its complaint. show that state regulators are building a “regulatory wall,” to stop coal from being used in Asia.
“As a common carrier, BNSF is required by federal law to move regulated goods, including coal,” Roger Nober, BNSF’s executive vice president of law and corporate affairs, said in a press release Wednesday. “Permitting this facility should have followed the long-established process of making a determination based on site-specific impacts; instead they have taken it upon themselves to deny permits based on so-called rail impacts. This is a very clear violation of federal law.”
The complaint cites a 2010 study by Washington’s Department of Transportation and corresponding decision by the Federal Railroad Administration that adding eight roundtrip passenger rail trips per day in roughly the same area as the proposed coal terminal would cause no significant impact under the National Environmental Policy Act.
The outcome could harm BNSF’s ability to operate effectively throughout the state, the company said in its complaint.
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By Marissa Luck, The (Longview) Daily News
Published: November 14, 2017
LONGVIEW — In a huge blow to the proposed Longview coal dock, a Cowlitz County hearing examiner has denied two major shoreline permits that Millennium Bulk Terminals needs for its $680 million project.
Hearing Examiner Mark Scheibmeir rejected the permits Tuesday in spite of recommendations from Cowlitz County staff that he approve the permits under several conditions.
Scheibmeir wrote in his decision that Millennium could not show that it would adequately compensate for 10 significant adverse impacts identified in the state’s environmental impact statement. The state Department of Ecology cited nine of those 10 impacts as reasoning to deny a water quality permit for the terminal in September. Those nine areas include: vehicle traffic, vessel traffic, rail capacity, rail safety, noise pollution, social and community resources, cultural resources and tribal resources.
Scheibmeir added a tenth impact — greenhouse gas emissions — when the company said it could not mitigate for all the emissions generated as result of its project. A cradle-to-grave analysis estimated that the terminal would increase global greenhouse gas emissions by 2 million metric tons annually, according to the environmental impact statement.
Millennium will appeal the decision to the state’s shoreline hearing board.
“The decision is based primarily on issues outside the shoreline area applicable to any new terminal or transportation project in the State of Washington,” said Bill Chapman, Millennium CEO, in a prepared statement. “Not allowing Millennium to use this industrial shoreline for a bulk materials terminal simply because there will be more trains on the tracks and more vessels on the Columbia River, makes a bold statement that there is no industrial or port use for this site, or for any other industrial port site in Cowlitz County or anywhere else on the Columbia River System.”
Chapman pointed out that the former Reynolds Co.-site has historically been used for industrial purposes and “had extensive train traffic and vessel traffic in the past.”
Opponents argued that Millennium doesn’t have a clear path forward in light of Schiebmier’s decision and other recent permit denials from the state.
“This decision marks the fourth time that Millennium’s coal export proposal failed to meet local and state laws,” stated Jasmine Zimmer-Stucky, co-director of the Power Past Coal Coalition, in a press release. “Millennium faces insurmountable hurdles, and the company should end their coal export aspirations today.”
Tuesday’s decision is the latest in a string of setbacks for the coal terminal, which has been in the permitting process for six years. Before it can built its dock, Millennium must win its appeal of the state Department of Ecology’s denial of a key water quality permit. It must also obtain a total of 23 permits from local, state and federal agencies.
One sign of hope for company officials came earlier this month when a Cowlitz County judge found that the state was arbitrary and capricious when it denied a sublease needed for a coal dock. Yet Millennium will still have to bargain a compromise before it can actually get the sublease.
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July 18, 2018
Commerce-Clause Challenge Over Washington Coal-Export Terminal Overcomes First Hurdle
Glenn G. Lammi Contributor Washington Legal Foundation Chief Counsel, Legal Studies Division
In a March commentary, we appraised a legal challenge filed by two companies involved in the mining and delivery of coal against several Washington state officials for their role in blocking approval of a water-port terminal in Longview, Washington. The suit, which has attracted amici curiae briefs from neighboring states and other interested parties, took a step forward on May 30 when Judge Robert J. Bryan denied the defendants' motion to dismiss.
As discussed at length in our previous post, Lighthouse Resources desires to build a facility at Millennium Bulk Terminal to export high-quality, low-sulfur coal delivered by rail from Montana and Wyoming. That plan has run into a wall of denial erected by state officials. In preparing an environmental impact statement for the terminal, the Washington Department of Ecology (WDE) expanded its assessment (over federal regulators' objections) to rail transportation effects outside the project's area and even factored in the coal's ultimate end use: energy generation overseas, namely in Asia.
WDE also denied, with prejudice, Lighthouse's request for a water-quality certification, necessary for the company to apply for permits under the federal Clean Water Act. The agency again put an unprecedented thumb on the scale by basing its decision on non-water-quality factors, such as concerns over increased air emissions from rail transportation. The agency also informed Lighthouse in writing that further permit applications would be futile.
On January 3, 2018, Lighthouse filed a federal lawsuit against Washington Governor Inslee, the WDE director, and the Commissioner of Public Lands alleging their actions violated the U.S. Constitution's Commerce and Supremacy Clauses. BNSF Railway Company moved to intervene as a plaintiff on February 27, a motion Judge Bryan subsequently granted. Both plaintiffs' complaints document not only the defendants' strident opposition to coal as an energy resource, but also their concomitant use of their official authority to prevent any coal from being exported to foreign purchasers.
Moving to dismiss, the defendants argued that the preemption-based claims should fail because the federal laws cited (the ICC Termination Act and the Ports and Waterways Safety Act) don't apply to the underlying facts. They also asserted that the federal court should abstain from exercising jurisdiction over the plaintiffs' federal claims because Lighthouse was pursuing state-court appeals of permit denials for the Millennium Bulk Terminal project. Lighthouse and BNSF responded that the court should not abstain because: 1) the federal constitutional and statutory claims asserted here are not at issue in the state-court litigation; and 2) abstention is inappropriate when constitutional rights are at stake.
An impressive array of amicus curiae supported the plaintiffs in their opposition—an uncommon occurrence at such an early stage in litigation. An amicus brief jointly filed by Wyoming, Kansas, Montana, Nebraska, South Dakota, and Utah burnished the plaintiffs' arguments on abstention, stressing that the "overwhelming federal interest" in resolving questions under the Commerce Clause overcomes any interest Washington has in the state-court matters. The brief also strongly underscored the lawsuit's Commerce Clause claims, explaining that Washington is "trying to force on other states their policy preferences ... Today it is coal, tomorrow it could be natural gas or non-organic produce."
Another amicus brief, filed by the National Mining Association, National Association of Manufacturers, American Farm Bureau Federation, and American Fuel & Petrochemical Manufacturers, also stressed the national impact of Washington's coal-terminal blockade. The associations provided current examples of what WLF has called extreme federalism, where states have adopted laws aimed at setting national policy, and warned that a ruling for the defendants would give states a green light to continue this trend.
A third brief, filed by Western States Petroleum Association, documents how Washington's unlawful rejection of Millennium Bulk Terminal permits is part of a "broader campaign to thwart fossil fuel exports from the west coast." Activists groups, some of which have intervened as defendants in the Lighthouse/BNSF litigation, openly brag about how that campaign has created a "thin green line" against coal export, the Western States brief explains. The brief cites to an illustrative map created by Sightline.org.
Finally, the American Association of Railroads supported BNSF's opposition motion on the specific issue of federal preemption under the ICC Termination Act. Congress made clear though that law, the association argues, that individual states may not govern rail transportation either directly or indirectly. The brief spells out how such state-by-state regulation of interstate rails would wreck havoc on the nation's freight rail network.
In his May 30 ruling from the bench, Judge Bryan decided that the plaintiffs' preemption theories were plausibly presented in the complaint and that those claims will proceed. He also rejected the defendants' request that the court abstain from exercising jurisdiction because of the related litigation in state court. Any potential conflicts, he concluded, can be dealt with through careful calendar management.
Since the court's ruling, the state officials and the intervening activist-group defendants have filed answers to the Lighthouse and BNSF complaints. We will continue to closely monitor developments in the litigation. As we expressed in our March commentary on Lighthouse Resources v. Inslee, this lawsuit is about far more than a dispute over the construction of a single coal-export terminal. The amicus participation of six states and numerous national and regional business groups, and the arguments they make on preemption and the Commerce Clause, reflect the suit's national and international significance.