USA v. BNSF Railway Company

Filing 7

STIPULATION AND ORDER by Magistrate Judge Nina Y. Wang on 03/11/16 re: 2 Stipulation for Order of Dismissal, filed by USA. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00458-NYW
UNITED STATES OF AMERICA,
Plaintiff,
v.
BNSF RAILWAY COMPANY,
Defendant.

STIPULATION AND ORDER OF DISMISSAL

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;

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(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).

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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,
[e-mail], 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 [e-mail] 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

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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. 20593-7605. The notice of payment
shall reference the civil action number assigned to this case and DOJ Case No. 90-5-1-1-11246.
8.

If all or any part of the penalty specified in Paragraph 5 is not paid when due, in

addition to the amount specified in Paragraph 5, BNSF shall pay a stipulated penalty of $1,000
for each day the payment is late. Further, interest shall accrue on the balance of any unpaid civil
and stipulated penalties in accordance with the statutory judgment interest rate provided for in 28
U.S.C. § 1961, commencing on the date that such civil and stipulated penalties become due.
BNSF waives any and all objections to the collection of any unpaid amount due under this
Stipulation and Order in accordance with Rule 69 of the Federal Rules of Civil Procedure, the
Federal Debt Collection Procedure Act, 28 U.S.C. §§ 3001-3308, and any other applicable
statutory authority.
9.

The civil penalty and any stipulated penalty paid under this Stipulation and Order

shall not be deductible by BNSF or any other person for federal, state, or local tax purposes.
10.

Within 30 days after receipt of the civil penalty and any stipulated penalties and

interest due under this Stipulation and Order, the United States shall provide notice to the Court
of such payment, at which time the Parties will file a Stipulation dismissing the civil claims of
the United States for the violations alleged in the Complaint shall be dismissed with prejudice.
11.

This Stipulation and Order in no way affects the right of the United States to bring

an action for any violation not specifically alleged in the Complaint.
12.

Each party shall bear its own costs, expenses and attorney's fees.

13.

This Court retains jurisdiction to enforce this Stipulation and Order until such

time that the United States provides notice of payment and the Parties stipulate to dismiss
the action with prejudice pursuant to Paragraph 10.
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14.

This Stipulation and Order constitutes the entire agreement between the United

States and BNSF and supercedes any prior or contemporaneous agreements, discussions or
representations, oral or written, with respect to the subject matter hereof.
15.

This Stipulation and Order may be executed by the parties in separate

counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
16.

The undersigned representatives of BNSF and the Assistant Attorney General of

the Environment and Natural Resources Division or his designee each certify that he or she is
fully authorized to enter into the terms and conditions of this Stipulation and Order and to
execute and legally bind BNSF and the United States, respectively, to it.
ORDER
As stipulated to and agreed by the parties, IT IS SO ORDERED AND ADJUDGED.

Dated: March 11, 2016

s/ Nina Y. Wang
United States Magistrate Judge

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