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United States v. BNSF Railway Co.

United States District Court, D. Colorado

March 11, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
BNSF RAILWAY COMPANY, Defendant.

MARGARET J. (PEGGY) LIVINGSTON Senior Enforcement Attorney U.S. Environmental Protection Agency, Region 8

STIPULATION AND ORDER OF DISMISSAL

Nina Y. Wang United States Magistrate Judge

WHEREAS, concurrently with the lodging of this Stipulation and Order of Dismissal ("Stipulation and Order"), the United States of America is filing a Complaint against BNSF Railway Company ("BNSF"). The Complaint alleges that BNSF is liable for civil penalties under the Clean Water Act arising from:

(i) BNSF’s unauthorized discharge of: (a) approximately 3, 750 gallons of diesel on or about March 9, 2010 from a locomotive engine located in Mobridge, South Dakota; (b) approximately 7, 400 gallons of diesel and 230 gallons of lube oil on or about May 12, 2010 from locomotive engines located in Wind River Canyon near Thermopolis, Wyoming; (c) approximately 3, 000 gallons of diesel on or about February 7, 2012 from a locomotive engine located in Williston, North Dakota; and (d) approximately 200 gallons of diesel on or about June 22, 2013 during the refilling of a locomotive engine located in Minot, North Dakota;
(ii) BNSF’s failure to prepare adequate Spill Prevention Control and Countermeasure (“SPCC”) plans for rail yards in Denver, Colorado; Guernsey, Wyoming; Grand Forks, North Dakota; and Minot, North Dakota (collectively the “Facilities”); and
(iii) BNSF’s failure to prepare adequate Facility Response Plans (“FRPs”) for rail yards in Denver, Colorado and Guernsey, Wyoming; WHEREAS, BNSF’s responses to the unauthorized discharges were prompt and adequate; WHEREAS, upon being informed by EPA that the SPCC plans and FRPs for the rail yards identified above were inadequate, BNSF submitted to EPA adequate SPCC plans for the Facilities and adequate FRPs for the rail yards in Denver and Guernsey; WHEREAS, the parties agree that settlement of this action without further litigation is in the public interest and that entry of this Stipulation and Order is the most appropriate means of resolving this action. Except as otherwise explicitly noted, nothing herein shall be construed as an admission by BNSF as to any of the allegations contained in the Complaint.

NOW THEREFORE, before the taking of any testimony, without trial of any issue of fact or law, and upon the consent and agreement of the parties to this Stipulation and Order, it is hereby agreed and stipulated as follows:

1. BNSF is a corporation that does business in Colorado. At all relevant times, BNSF has owned and operated rail yards in Denver, Colorado; Guernsey, Wyoming; Grand Forks, North Dakota; and Minot, North Dakota.

2. This Court has jurisdiction over the parties to, and the subject matter of, this action pursuant to 28 U.S.C. §§ 1331, 1345, and 1355 and Sections 309(d) and 311(b)(7)(E) of the Clean Water Act, 33 U.S.C. §§ 1319(d) and 1321(b)(7)(E).

3. Venue is proper in the District of Colorado pursuant to 28 U.S.C. §§ 1391(b) and 1395(a) and Section 311(b)(7)(E) of the Clean Water Act, 33 U.S.C. § 1321(b)(7)(E).

4. BNSF agrees that the Complaint states a claim for which relief can be granted. BNSF has identified, on the attached signature page, the name and email address of an agent who is authorized to accept service of process by email on behalf of BNSF with respect to the Complaint filed in connection with the lodging of this Stipulation and Order. BNSF waives any objection to service of the Complaint by email to the person so identified.

5. BNSF shall, within 30 days of the date this Stipulation and Order is entered by the Court, pay to the United States a civil penalty in the amount of $600, 000.00.

6. The payment shall be made FedWire Electronic Funds Transfer (“EFT”) in accordance with instructions provided to BNSF by the Financial Litigation Unit (“FLU”) of the United States Attorney’s Office for the District of Colorado after this Stipulation is entered by the Court and reference DOJ Case No. 90-5-1-1-11246. The payment instructions provided by the FLU will include a Consolidated Debt Collection System (“CDCS”) number, which BNSF shall use to identify all payments required to be made in accordance with this Stipulation and Order. The FLU will provide the payment instructions to BNSF’s counsel, Matthew Douglas, Arnold & Porter LLP, 370 Seventeenth Street, Denver, CO 80202-1370, matthew.douglas@aporter.com, on behalf of BNSF. Such monies are to be deposited in the Oil Spill Liability Trust Fund pursuant to 33 U.S.C. § 1321(s) and 26 U.S.C. § 9609(b)(8).

7. At the time of payment, BNSF shall send notice that payment has been made (i) to the United States by email at eescdcopy.enrd@usdoj.gov or regular mail at EES Case Management Unit, Environment and Natural Resources Division, U.S. Department of Justice, P.O. Box 7611, Washington, D.C. 20044-7611 and (ii) the National Pollution Funds Center by regular mail at CG National Pollution Funds Center (CF), Attn: M.V. Warren, U.S. Coast Guard Stop 7605, 2703 MLK Jr. Avenue, SE, Washington, D.C. ...


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