(The following article by Nancy Gaarder was posted on the Omaha World Herald website on December 17.)
OMAHA, Neb. — The federal government has raised the ante in its politically charged negotiations with Union Pacific Railroad over the cost of cleaning up Omaha’s lead-contaminated yards.
The Environmental Protection Agency on Friday ordered Union Pacific to take over about $40 million worth of yard cleanups, setting the stage for a showdown in federal court if U.P. refuses.
Kathryn Blackwell, spokeswoman for U.P., said the railroad has offered to settle for $15.2 million, well above what it sees as its potential legal liability.
The EPA is unfairly targeting Union Pacific, she said, and the railroad will go to court if necessary to defend itself.
If that were to happen, no one knows where the fallout might land. The battle could spill into the larger Omaha business community, with Union Pacific seeking to recoup costs from any of dozens of Omaha companies that have handled lead.
“That is something we are considering, and it should be something the EPA is considering,” Blackwell said. “But are we pursuing that? No, we are not.”
Union Pacific’s biggest beef with the EPA is that the railroad itself never handled lead. It simply owned land that it leased to another company – Asarco – that processed lead.
Under federal law, the owner of a piece of property is equally liable for actions taken by another company using that property.
The EPA has said Asarco is the primary source of the industrial air pollution that contaminated thousands of eastern Omaha yards and contributed to lead poisoning among the city’s children. Asarco leased land from Union Pacific for decades before buying it outright.
The EPA has not issued an order against Asarco because the agency is prevented by a moratorium it agreed to as part of a $100 million settlement with Asarco.
The settlement established a trust fund to help with the cleanup at dozens of Asarco sites around the United States. About $6 million has been funneled toward Omaha.
Further complicating the EPA’s efforts to get money out of Asarco is the fact that the metals company has filed for bankruptcy.
Union Pacific has until Dec. 27 to decide whether it will comply with the order.
Jim Gulliford, regional administrator for the EPA, said the agency is pushing forward with this order to further protect children in the community.
If the railroad decides to comply, it will take over the cleanup in 2006.
If the railroad refuses, the EPA could seek a court order forcing U.P. to run the cleanup. Or EPA could continue with the work itself and take Union Pacific to court later over the cost of the work. Under this scenario, the EPA could bill U.P. for triple the cost.
As it has done before, Union Pacific is likely to argue that lead paint plays a greater role in the contamination than the EPA has said.
The EPA estimates that about 2,800 yards remain to be cleaned up under the current phase of work. Union Pacific’s offer would cover about 900 of those yards.
The EPA has spent more than $50 million on Omaha thus far. That money has gone toward staff time, scientific analysis and the cleanup of about 1,700 yards.
Negotiations between U.P. and the EPA have drawn in the city’s top elected officials. Mayor Mike Fahey, U.S. Rep. Lee Terry, and Sens. Ben Nelson and Chuck Hagel have participated in discussions in Washington with the EPA’s top administrator.
Hagel issued a statement describing the EPA’s actions as “disturbing” and a threat to Nebraska jobs.
Terry said that the head of the EPA, Stephen Johnson, has assured him that the agency is remaining flexible and willing to engage in legitimate negotiations.
“That’s all I can ask for, a good-faith effort,” Terry said.