Daily Rules, Proposed Rules, and Notices of the Federal Government
Copies of written comments will be available for viewing and self-copying at the Board's Public Docket Room, Room 131, and will be posted to the Board's Web site.
AECC is a generation and transmission cooperative that provides wholesale electric power to electric cooperatives throughout Arkansas. AECC is a co-owner, with other utilities, of generation assets that burn millions of tons of PRB coal annually. During normal operating conditions, three of these plants—White Bluff at Redfield, AR, Independence at Newark, AR, and Flint Creek at Gentry, AR—receive all of their PRB coal via the Joint Line. On May 27, 2009, BNSF issued the Tariff provisions stating that “[e]ffective November 1, 2009, Shipper shall take all steps necessary to ensure that Trains handling cars loaded with Coal from any mine origin that move over [the Joint Line or Black Hills Subdivision] shall not emit more than an Integrated Dust Value (IDV.2) of [300 units or 245 units, respectively] in order to enhance retention of coal in rail cars.” AECC seeks a declaratory order stating that the Tariff provisions constitute an unreasonable rule or practice and an illegal refusal to provide service. AECC also asks that the order state that BNSF must permit shippers to transport coal on the Joint Line and Black Hills Subdivision without such restrictions.
On October 21, 2009, BNSF, a Class-I rail carrier operating in the western United States, replied to AECC's petition contesting, among other things, AECC's underlying presumption that the Tariff provisions are injurious to coal shippers. BNSF states that coal dust contaminates the ballast and can impact ballast integrity, ultimately causing derailments. Therefore, BNSF claims the Tariff provisions are intended to promote the safe, efficient, and uninterrupted flow of coal from mine to generating station. BNSF itself requests the Board issue a declaratory order stating that (1) BNSF is entitled to establish rules designed to inhibit the dispersion of coal dust over its lines in the interest of safe and efficient rail operations and of reliability of service on its rail lines; and (2) BNSF's Tariff provisions are not unreasonable.
Under 5 U.S.C. 554(e), the Board has discretionary authority to issue a declaratory order to terminate a controversy or remove uncertainty. The issues raised by AECC and BNSF merit further consideration. A declaratory order proceeding is thus instituted in this proceeding.
We received, on October 22, 2009, a letter from WCTL requesting that we accept public input on the declaratory order proceeding.
In their filings, AECC and BNSF discuss the alleged adverse effects of coal dust on rail roadbeds and ballast, implicating safety and environmental issues. Because the Board's consideration of the issues raised in this proceeding could relate to other Federal agencies' areas of expertise, any agency with an interest in the outcome of these issues is encouraged to comment.
Both AECC and BNSF request that a procedural schedule be adopted. They both request that we allow for a 60-day period of discovery. While the legal nature of a declaratory order proceeding might not always necessitate discovery, due to the factually intense nature of the dispute here we will permit discovery among BNSF, AECC, and any other shippers potentially affected by the tariff, including shipper organizations that represent those shippers. These entities may conduct discovery pursuant to the Board's regulations at 49 CFR 1114.21,
Board decisions, notices, and filings in this and other Board proceedings are available on our Web site at
1. A declaratory order proceeding under 5 U.S.C. 554 and 49 U.S.C. 721 is instituted.
2. The parties to this proceeding must comply with the procedural schedule adopted by the Board in this proceeding as shown in the Appendix.
3. The parties to this proceeding must comply with the procedural requirements described in this decision.
4. The special appellate procedures set forth in this decision will apply to rulings made by the Board employee assigned to act as a discovery facilitator in this matter.
5. This decision is effective on December 1, 2009.
By the Board, Chairman Elliott, Vice Chairman Nottingham, and Commissioner Mulvey.