Three environmental groups, led by the National Resources Defense Council (NRDC), have sued the two major Southern California freight railroads over diesel pollution generated by rail operations at 17 railyards throughout California.
The suit is asking the court to force the railroads to "remediate" and "abate" the health effects of the railyard pollution by requiring the implementation of billions of dollars of new equipment and infrastructure.
The suit, which relies on a novel legal argument, seeks to have the court set a legal precedent by declaring the railyards as generators of hazardous waste. Such a precedent could open the door for similar lawsuits against any commercial operation that utilizes diesel machinery.
The NRDC, along with co-plaintiffs the Center for Community Action and Environmental Justice and the East Yard Communities for Environmental Justice, filed the suit in the California Central District court on Tuesday.
Citing the federal Resource Conservation and Recovery Act (RCRA), the NRDC's untested legal argument claims that railroads Union Pacific and Burlington Northern Santa Fe are illegally disposing of hazardous waste – in the form of settled airborne diesel pollution – in communities near the railyards.
In the suit, the NRDC claims that diesel particulate matter is a hazardous material that falls under the auspices of regulation by the RCRA.
The federal RCRA gives the United States Environmental Protection Agency the authority to control hazardous waste from the "cradle-to-grave." This includes the generation, transportation, treatment, storage, and disposal of hazardous waste.
Diesel particulate matter, commonly seen as soot from truck smokestacks, is in reality fine particles of carbon created in the combustion process within the locomotive and yard equipment diesel engines. While these particles, some ten times smaller in diameter than a human hair, are mostly inert carbon, they also contain minute traces of numerous other chemicals and heavy metals that bind to the carbon particles.
Specifically, the suit identifies the trace chemicals and metals in the diesel particulates as the “hazardous waste” being disposed of by the railroads.
While the trace chemical components of the settled particles of diesel pollution are covered under the RCRA, the language of the RCRA does not specifically cite settled diesel pollution as a covered hazardous material.
The NRDC is requesting relief from the court in three ways: a declaration that UP and BNSF are indeed disposing of hazardous waste in the manner described by the NRDC; require the railroads to investigate the "amount, fate and transport" of diesel particulate matter from the railyards; and, require the railroads to "remediate" and "abate" the railyard diesel particulate matter emissions.
In their filing, the NRDC lists numerous remediation actions that it is asking the court to impose.
These include forcing the railroads to purchase newer cleaner-burning locomotives, invest in "electrification of major rail lines," purchase cleaner-burning yard equipment, install plug-in electrification at the railyards for all reefer units and reconfigure railyards to achieve maximum distance from operations and nearby communities.
The suit also seeks to limit locomotive idling to 15 minutes, create locomotive no-idle zones near residential areas, and monitor their operations to assure air quality.
A statement from BNSF called the suit unreasonable and pointed out that the railroad has spent hundreds of millions of dollars in reducing emissions.
The railroads have pointed out in the past that their locomotives and yard equipment all meet or surpass current air quality regulations.
In 2008, the NRDC threatened to take similar legal action against the Southern California Port of Long Beach. In a threat issued to the port, the NRDC claimed the Long Beach port was violating federal law by disposing of toxic waste in the form of diesel truck exhaust. Calling the port an “imminent and substantial endangerment to public health,” the group also charged the port with ongoing failures to remedy the emissions.
The NRDC gave the port 90 days to take immediate action or it threatened to ask a federal court to appoint a “port czar” to force the port address the diesel pollution immediately. The NRDC also threatened to ask a federal court to halt all port development, cap port throughput to existing levels, and order the port to cap emissions to current levels.
Following the 90-day period, the NRDC backed off the threat, saying that it had "worked out their issues with Long Beach."
Thursday, October 20, 2011
