Rail Yard Air Pollution Challenged in 9th Circuit

PASADENA, Calif. (CN) - Rail yards must be stopped from emitting tons of harmful diesel pollution into neighborhoods surrounding Los Angeles and Long Beach ports, environmentalists told the 9th Circuit.

The appeal arose from the dismissal of a federal complaint against Union Pacific and BNSF Railway, alleging that diesel-particulate-matter pollution has elevated the risk of cancer and respiratory illnesses in poor communities of San Bernardino, Riverside County, Long Beach and East Los Angeles.

With the Southern California International Gateway, a planned rail yard a few miles from the Los Angeles and Long Beach ports, the problem will only worsen, according to the complaint from the Natural Resources Defense Council and two other groups.

BNSF countered that the project will help reduce congestion on the city's busy 710 freeway.

California classified diesel-particulate matter as a toxic air pollutant in the late 1990s, and the Environmental Protection Agency has concluded that the pollution is harmful.

Despite voluntary agreements to reduce emissions at the rail yards, the environmentalists claimed that California Air Resources Board has largely failed to deal with the problem.

They alleged a violation of the Resource Conservation and Recovery Act, or RCRA, a federal law that addresses the disposal of solid and hazardous waste.

U.S. District Judge James Otero found, however, that Congress intended for the Clean Air Act to regulate diesel emissions. He said the application of the RCRA, as proposed by the environmentalists, conflicts with that law.

In his brief to the 9th Circuit, Natural Resources Defense Council attorney David Pettit called for a reversal to ensure that those who live beside the rail yards do not "suffer lifetimes of increase cancer risk without remedy."

Pettit focused his attention at a Tuesday hearing on Otero's finding that the particulate matter is a gas not a "solid waste" under the RCRA, and the defendants' characterization of the pollution as "uncontained gas."

"My clients can go outside in the morning and run their finger over the window sill and it is going have dust on it," Pettit told the panel on Tuesday. "That's not a gas, it's a solid. Little particles. And they can go out the next morning and do it again. And this material, we have alleged in the complaint, is a solid and it increases my clients' risk of cancer. That's what this case is about. It's not a case about gases."

From the outset, the environmental groups had argued that, in lieu of California regulations for indirect sources of air pollution, the RCRA could regulate rail yards.

"You mentioned in your brief that we need to bridge this regulatory gap between RCRA and the Clean Air Act," Judge Marguia said to Pettit. "And what authority is there for us to fill it?"

Pettit called the RCRA an "extremely broad statute" that could apply to the diesel pollution.

"When you look at a rail yard, the Clean Air Act doesn't regulate it," he said. "It's not a point source. It's not a mobile source. It's a collection of things. And so, unless and until the state of California has an indirect-source rule for rail yards, which I believe my distinguished opponents would say is illegal, we don't have a remedy other than RCRA to deal with this problem."

BNSF attorney Mark Helm of Los Angeles firm Munger Tolles & Olson meanwhile urged the court to affirm. He insisted that only the Environmental Protection Agency could regulate particulate matter from engines, through the Clean Air Act.

Judge Randy Smith had asked Pettit if he was turning the "'disposal' language" in the RCRA "on its head" to fit his argument. For Helm, he tested the contention that diesel-particulate matter could not be defined as "solid waste" under the statute.

"The EPA considers particles found in smoke and haze to be pollutants, don't they?" Judge Smith asked.

"I believe it can be. Yes, Your Honor," Helm replied.

"2.5 micrometers in diameter and smaller?" Smith said.

"Yes, your honor."

"Well, wouldn't that support the view that this is solid waste?"

"No," Helm said. "To me it would support the opposite because the EPA regulates gaseous emissions that emit particulates as part of the Clean Air Act. That's why uncontained gases were excluded from the solid waste definition."

He added that a reversal would lead to the "absurd result" that the RCRA could regulate air-pollution emissions from "any collection of diesel trucks, diesel buses, diesel engines in facilities, in manufacturing and in vehicles."

Judge Ferdinand Fernandez sat with Judge Smith and Judge Murguia on the panel.

The Center for Community Action & Environmental Justice is also a co-plaintiff with the East Yard Communities for Environmental Justice.

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