- Associated Press - Tuesday, June 21, 2011

LOS ANGELES — An environmental group warned two of the country’s biggest rail companies Tuesday that it will sue them in federal court if they don’t clean up hazardous waste emitted from diesel engines at 16 California rail yards.

The Natural Resources Defense Council sent letters to Union Pacific Corp. and Burlington Northern Santa Fe Railway, saying it will file a lawsuit within 90 days under the Resource Conservation and Recovery Act, which regulates the disposal of hazardous solid waste. The letter cited 16 rail yards in California from Oakland to San Bernardino.

In what could be a precedent-setting lawsuit, the council argues that minute particles in diesel air pollution, which include lead, cadmium, nickel and other toxic elements, are solid waste.

If successful, such a suit could open the door for legal action against similar air pollution sources such as ports, airports or anywhere with a lot of diesel equipment, said David Pettit, a senior attorney with the council.

“I think the reason why other people haven’t tried it is on first glance you would think that the emissions are a gas and RCRA doesn’t apply to gases,” Mr. Pettit said. “The fallacy with that is the exhaust has two components: one is a gas and the other component is a solid and those solids will kill you if you inhale enough of them.”

Aaron M. Hunt, a spokesman for Omaha, Neb.-based Union Pacific, and Lena Kent, a spokeswoman for Fort Worth, Texas-based BNSF, did not immediately return a call and email for comment.

Millions of cargo containers loaded on trucks and trains travel by freeway and railway through Southern California and then to the rest of the country. The 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.

The rail yards have long been blamed for health problems in communities along those transit corridors. The tiny particles contained in diesel exhaust can penetrate deep into the lungs, carrying a variety of toxins that have been linked to acute bronchitis, lung disease, heart attacks and other health problems.

State and local air quality regulators have struggled to regulate train pollution. A federal appeals court last year struck down a lawsuit involving a local air regulator that wanted to reduce pollution from idling locomotives. The court determined the agency was overstepping its authority because only the federal government is authorized to regulate interstate commerce.

Environmental law specialists say that while RCRA regulates solid hazardous waste, it potentially could be applied to diesel particulates.

Holly Doremus, an environmental law professor at the University of California, Berkeley, said there has been debate over what constitutes solid waste. Typically the Clean Air Act is supposed to apply to such particulate pollution but the restrictions haven’t been particularly effective, she said.

“It’s not a slam dunk either way, and I think it’s very creative by the NRDC to have found this possibility,” she said.

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