(The following story by Reed Fujii appeared on the Stockton Record website on August 4.)
STOCKTON, Calif. — A state appeals court said California prosecutors do have grounds to pursue civil action against Union Pacific Railroad and a chemical company for twice operating leaky railcars that spilled caustic lime over hundreds of miles of the Central Valley.
That ruling, issued Wednesday, in part overturned a San Joaquin County Superior Court decision that dismissed the suit because federal laws took precedence.
In particular, the trial court concluded state charges were fully preempted by the federal Hazardous Materials Transportation Act, which does not regulate lime, known chemically as calcium oxide.
Union Pacific and attorneys for Chemical Lime Co. of Arizona argued that because the material is not regulated under HTMA, state enforcement powers over transportation of lime are preempted.
“Taken to its logical conclusion, this argument would mean that anyone transporting or causing the transportation of any material in commerce would have complete immunity from all state regulation or remedies for injury so long as the material is not regulated under HMTA,” reads the ruling from Sacramento-based Third District Court of Appeal.
“Thus, consistent with defendants’ argument, commercial transporters could contract with dairy farmers to dispose of excess manure by dumping it in our environment and the state would be powerless to prevent or provide a remedy for such conduct.”
Appellate justices said federal law does preempt any state requirements for training railroad employees in responding to spills and bars any penalty for the spill itself. However, California prosecutors can pursue civil damages against the chemical carrier and producer for failing to immediately notify authorities of lime spill and for failure to clean up the spilled lime and to fix any damages caused, the court said.
Both sides in the case found reason to cheer.
“With the exception of the court’s finding concerning the verbal reporting, we view this decision as a victory for the company,” James Barnes, Union Pacific media information director, said from his Omaha, Neb., office.
And he said railroad attorneys may again try to challenge state rules requiring Union Pacific to report hazardous materials spills.
“Now, we’re continuing to evaluate this aspect of the court’s holding, but it appears that we may be free at trial to present evidence showing that these reporting requirements are preempted.”
Susan S. Fiering, deputy attorney general, said the railroad would have to argue that compliance with state environmental laws was somehow interfering with its ability to transport hazardous materials.
“That’s just absurd,” she added. “In this age of the cell phone and easy communications, it is somewhat outlandish to argue this is some sort of obstacle to their ability to transport materials.”
David Irey, deputy district attorney for San Joaquin County, who helped argue the case at trial court, said he is reviewing the appeals court decision and will meet shortly with prosecutors from four other counties involved.
“We’re going to go forward with our prosecution,” he promised.
The case stems from two incidents. On Dec. 27, 2001, a Union Pacific railcar spilled a white substance over at least 175 miles from Madera County through Sacramento County, according to the appellate ruling.
Union Pacific delayed nearly four hours after learning of the spill before contacting the state Office of Emergency Services. Also, the railroad did not remove or otherwise dispose of the spilled lime.
The second incident occurred Feb. 21, 2002, as a railcar carried lime from Nevada to San Joaquin County.
A spill was noticed and the train stopped in Chowchilla, but the conductor was directed to proceed without repair. Lime continued to pour from the car – an estimated 15 tons was dropped between Madera County and the Stockton rail yard – but the train continued despite an additional complaint, the court reported.
Union Pacific advised no state or local authorities about the spill until many hours after the first signs of trouble.
The appellate decision noted that lime is a potentially dangerous substance, which can result in irritation to the eyes, skin and upper respiratory tract. Powdered lime mixed with water can react with explosive violence.