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RCRA Complaint Filed Against Railroads Over Diesel Emissions

October 20, 2011

 

On October 19, 2011 a complaint filed against the Union Pacific Corp., Burlington Northern Santa Fe LLC and BNSF Railway Company alleges that residents living near sixteen rail yards in California are being exposed to diesel exhaust in violation of federal hazardous waste law. The complaint seeks both declaratory and injunctive relief under a federal statute that is not normally used to address airborne contamination. The plaintiffs, Natural Resources Defense Council and two other environmental justice organizations (collectively “NRDC”), complain that the railroads violated the federal Resource Conservation and Recovery Act (“RCRA”) by discharging diesel exhaust particulate matter from locomotives and auxiliary equipment.

In June 2011, the railroads received notice of NRDC’s intent to sue unless the railroads undertook steps to reduce emissions of diesel exhaust particulate, which the complaint alleges California has listed as a toxic air contaminant and the U.S. Environmental Protection Agency has classified as a likely carcinogen. According to the NRDC’s website, no progress or any good faith effort was made on behalf of the railroads to address the pollutants, and so the complaint was filed.

Although the complaint goes into great detail about the alleged harmful effects of diesel exhaust, at the heart of the complaint is the allegation that diesel exhaust is a RCRA hazardous waste, and therefore emitting diesel exhaust is a violation of RCRA. NRDC alleges that the diesel exhaust particulate emitted from railroad operations includes lead, arsenic, cadmium, nickel, antimony, beryllium, cobalt, manganese, mercury, and selenium. NRDC further alleges that all of those substances are on the “RCRA list of hazardous substances” and that the diesel exhaust particulate constitutes hazardous waste under RCRA. Whether a material is a hazardous waste under RCRA can be a complicated question, and is one that has not typically been considered for diesel exhaust. RCRA imposes a comprehensive regulatory scheme on hazardous wastes from their initial generation to their ultimate disposal, and on nearly all of their handling, treatment and storage in between, so as to minimize present and future threats to human health and the environment. According to the complaint, the railroads failed to properly handle the diesel exhaust particulate so as to prevent the human exposures.

Emissions of diesel particulate from locomotives and auxiliary equipment are primarily regulated by the U.S. Environmental Protection Agency and in California by the Air Resources Board. It is unclear how the court will respond to the novel use of RCRA to seek injunctive and declaratory relief related to diesel exhaust in light of the fact that the equipment emitting the diesel exhaust is already regulated by governmental agencies, and there is no allegation that the equipment is being used in violation of existing emission requirements. A victory in court for the environmental groups could have significant ramifications for operators of rail yards, truck and bus depots, and other locations where there is significant use of diesel equipment. Since the complaint also requests a declaratory judgment that the defendants are contributing to an imminent and substantial endangerment to health and the environment, success on this claim for relief could bolster efforts by environmental groups to enjoin similar operations.