Two environmental advocacy groups file lawsuit Oct. 18 against BNSF Railway, Union Pacific under novel legal theory that diesel exhaust is hazardous waste, companies should be held accountable for public health near rail yards

Alison Gallant

LOS ANGELES , October 18, 2011 (Associated Press) – When the lump on her toddler's tummy turned out to be a rare cancer, Carla Hernandez wondered if living just a half-mile from two rail yards emitting a constant veil of near-invisible pollution was somehow responsible.

"When she was diagnosed they kept asking me if I smoked or if anyone smoked around her, but no one did," said Hernandez, sitting beside her 4-year-old daughter, who was sleeping after her latest treatment at Children's Hospital Los Angeles.

Such accounts of families and children living near transportation corridors and experiencing health problems helped prompt a conservation group and two environmental justice groups to file a lawsuit Tuesday against two of the nation's biggest rail road companies.

The Natural Resources Defense Council filed the suit under a unique legal theory that diesel exhaust is hazardous waste and companies should be held accountable for health problems suffered by residents living near California rail yards.

The lawsuit filed in federal court against Union Pacific Corp. and BNSF Railway Co. accuses the companies of violating the Resource Conservation and Recovery Act, which regulates hazardous solid waste disposal. The lawsuit alleges problems at 17 rail yards across California, from Oakland to San Bernardino.

The conservation group claims minute particles in diesel exhaust, including lead, cadmium, arsenic and other toxic elements, are solid waste. If the novel suit is successful, a senior attorney with the council believes it could open the door for legal action against similar air pollution sources such as ports, airports or anyplace with a lot of diesel equipment.

"We really believe it's hazardous and a product of the rail company's operations," said Angelo Logan, executive director for East Yard Communities for Environmental Justice, one of the litigants. "It's being emitted into the air and the local residents have to bear the brunt of the toxic waste the locomotives and other equipment are producing."

Lena Kent, a spokeswoman for Fort Worth, Texas-based BNSF called the lawsuit unreasonable and said the railroad has spent hundreds of millions of dollars to reduce emissions and replace outdated locomotives.

"The NRDC and environmental justice groups have refused to acknowledge any of the work we've done," she said. "They're being unreasonable and it's another attempt to attack the region's goods movement industry."

Aaron Hunt, a spokesman for Omaha, Neb.-based Union Pacific said in an email the company would comment later in the day. He previously said the railroad has worked with state and federal regulators for more than a decade to reduce emissions in and around California rail yards.

Millions of cargo containers loaded on trucks and trains travel by freeway and railway through Southern California then to the rest of the country. West Coast ports are the nation's principal gateway for cargo container traffic from Asia, with the ports of Los Angeles and Long Beach handling about 40 percent of the nation's cargo.

Rail yards have long been blamed for health problems in communities around transit corridors. Diesel exhaust contains tiny particles that can penetrate deep into the lungs, carrying a variety of toxins that have been linked to acute bronchitis, lung disease, heart attacks and other ailments.

Exposure to such pollution can be especially dangerous for children whose lungs are still developing and the elderly, whose immune systems may be compromised, studies show.

Hernandez said she worries about bringing her daughter back to their Commerce home between hospital visits because of high pollution levels.

She and other residents who live near rail yards and see a constant film of fine pollution particles settle like dust on their windows and elsewhere in their homes say they support the lawsuit.

"It's not like we have the luxury to move out of there," said Hernandez, whose daughter has a 20 percent chance of getting cured. "The pollution is still there."

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