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NRDC lawsuit seeks to hold railyards responsible for air pollution health risks

Near California railyards, community groups have long complained about the health hazard posed by diesel air pollution. A potentially groundbreaking lawsuit filed by the Natural Resources Defense Council aims to change how railroads operate at these yards near homes and schools.

Laughing teenagers toss footballs around a sports field, idyllic green against a grey sky. Just over the fence of Stephens Junior High School, containers on railroad lines crawl past, booming as they stop and start.

A thin woman casts a wary eye at all this. Helena Rodriguez raised two kids in this neighborhood.

"Sometimes they had to stop their recess or physical education to go inside the classroom because the air was too bad," she says. "My daughter has asthma, her two best friends have asthma also." Rodriguez breaks down. "I feel so bad because I have seen children having asthma attacks, and it's so sad."

Rodriguez blames air pollution for cancer, respiratory and heart disease near 17 railyards in California — not just Long Beach. She's not alone. Community organizer Graciela Larios says one of youngest girls she knows in Riverside suffers the most: a 4-year-old, with a Dora the Explorer backpack.

"Oh, how cute! A Dora backpack!" she says, mimicking bystanders. But she says it's not so cute. "Inside is a big respirator machine. She knows how to set it up, she knows how to use it," Larios says. "We fear for children like her."

In a new federal lawsuit brought by the Natural Resources Defense Council, attorney David Pettit argues that diesel air pollution illegally harms people living and going to school near railyards like this one. "We're suing the two major railroads that service California, BNSF and UP, and we're suing them to get them to clean up their railyard operations all around the state. There's increased cancer risk and all other kinds of risk from living next to a railyard, and that's what we're trying to fix."

Pettit's arguments rely on the Resource Conservation and Recovery Act. That federal law regulates hazardous solid wastes that present imminent harm to people. Petit says the solid waste here is airborne.

Pettit likens diesel particulate pollution to a shotgun blast. "If someone points a shotgun at you and pulls the trigger, what comes out of the barrel is the hot gases and the shotgun pellets, and it's not the gases that kill you, it's the pellets, the particles that kill you, the pellets. And it's the same way with diesel exhaust, you suck those particles into your lungs with arsenic and lead and bad stuff on them, you suck them into your lungs and they don't come out again, and that's what kills you." Petit pauses. "This legal theory, if it works, will be of national significance, and we'll be able to use it all over the country."

NRDC may have a shot at that. "I wouldn't say it's totally wacky. I would say it's novel," says UCLA environmental law professor Sean Hecht. "It's not something I've seen before."

Hecht says nobody's ever tried to use RCRA to limit air pollution. But he adds that California's regional air officials, whose authority stems from the Clean Air Act, have run into roadblocks trying to regulate railroads.

Those companies have argued they're part of interstate commerce; thus, federal law preempts states from regulating their locomotives. "There was a lawsuit fairly recently that knocked down the South Coast Air Quality Management District's attempt to regulate railyards as if they were a stationary source," Hecht points out. "So, it is true that this is a serious problem that doesn't seem to have an obvious legal remedy."

Union Pacific spokesman Aaron Hunt says his railroad hasn't seen NRDC's complaint yet. In a written response, Hunt said that UP is complying with federal and state law, and in fact was honored by both federal and state authorities for working toward cleaner air. "We are proud of our rail industry leadership role in testing and developing technology that improves fuel efficiency, reduces emissions and provides sustainable freight transportation solutions that support America's economy," Hunt writes.

That railyard near Stephens Junior High, the Intermodal Container Transfer Facility, is several hundred acres large. It handles 15 percent of containers moving through the L.A./Long Beach ports.

UP is seeking to expand it. And Burlington Northern Santa Fe wants to build a brand new rail transfer yard.

Expanded and developed, the two railyards would handle 3 million containers a year. Long Beach resident John Cross calls that a "diesel death zone."

Cross has lived in west Long Beach for four decades. "The railroads have been bad neighbors ever since they've laid the first spike in this country," he says. The ICTF opened in 1986. "If you remember, they're known as the railroad barons, and they don't want to change."

Cross says people living near the railyards can't trust state and local air regulators either. The only hope of controlling pollution, he argues, is a lawsuit brought on behalf of citizens like this one.