People v. Union Pacific Railroad Company

• Citation: 141 Cal.App.4th 1228,47 Cal.Rptr.3d 92
• Decision Date: 02 August 2006
• Docket Number: No. C048336.,C048336.
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD COMPANY, et al., Defendants and Respondents.

47 Cal.Rptr.3d 92

141 Cal.App.4th 1228

The PEOPLE, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD COMPANY, et al., Defendants and Respondents.

No. C048336.

Court of Appeal, Third District.

August 2, 2006.

Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Theodora Berger, Senior Assistant Attorney General, Susan S. Fiering and Harrison M. Pollak, Deputy Attorneys General, for Plaintiff and Appellant.

Law Office of Stevens & O'Connell, Craig C. Allison, Sacramento; Michael L. Whitcomb, Monterey Park; Reed Smith and Joseph P. Mascovich, for Defendant and Respondent Union Pacific Railroad Company.

Morrison & Foerster, Andrew B. Sabey and Robin S. Stafford, San Francisco, for Defendant and Respondent Chemical Lime Company of Arizona.

SCOTLAND, P.J.

The People of the State of California filed a civil complaint against the Union Pacific Railroad Company (Union Pacific) and the Chemical Lime Company of Arizona (Chemical Lime) based upon the spillage of substantial quantities of calcium oxide into the environment.

Demurrers were sustained without leave to amend and the complaint was dismissed because the trial court concluded the People's claims are preempted in their entirety by the federal Hazardous Materials Transportation Act (HMTA) (49 U.S.C. § 5101 et seq.) and the Federal Railroad Safety Act (FRSA) (49 U.S.C. § 20101 et seq.).¹ The People appeal from the judgment of dismissal.

We shall reverse the judgment and remand the matter for further proceedings. As we will explain, the state requirement of immediate verbal notification of the spill of calcium oxide and the imposition of a civil penalty for its violation are not preempted by federal law. Also not preempted by federal law is liability for remedial measures, such as abatement, cleanup, assessment and remediation of environmental injury, and consequential damages. However, the imposition of civil penalties for the alleged failure to train employees and for the fact of the spillage itself are preempted by federal law.

BACKGROUND

Facts

This action was commenced by the district attorneys of five counties, San Joaquin, Stanislaus, Merced, Madera, and Sacramento. In reviewing a judgment of dismissal entered after the sustaining of a demurrer, we accept as true the factual allegations of the complaint. (Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232, 238, 282 Cal.Rptr. 233.) The complaint reflects the following facts:

Union Pacific owns and maintains a railroad right of way, referred to as the I-5 corridor, that passes through Madera, Merced, Stanislaus, San Joaquin, and Sacramento Counties. The rail line is adjacent to and crosses over numerous waterways.

On December 27, 2001, a railcar being transported by Union Pacific spilled a white substance along the I-5 corridor for at least 175 miles from Madera County through Sacramento County. The San Joaquin County Sheriff's Department was the first to respond to the spill. Initial field tests indicated the substance could be a highly caustic hazardous substance. Public health officials and law enforcement closed roadways and evacuated a skate park due to its proximity to the railroad tracks. Subsequent testing revealed the substance was calcium oxide, known as lime or quicklime.

Union Pacific delayed nearly four hours after learning of the spill before contacting the Office of Emergency Services. Union Pacific did not otherwise notify appropriate agencies of the spill. Although it was aware the spill extended as far south as Madera County, Union Pacific did not inform Madera County officials. Moreover, Union Pacific did not remove or otherwise dispose of the spilled lime, and it did not identify the railcar that spilled the lime.

Another such incident occurred on February 21, 2002. Chemical Lime owns a railcar, designated number NRLX 46356, that it uses for transportation of lime. Union Pacific was transporting this railcar from Airoline, Nevada to Ortega, California, located in San Joaquin County. At some point, the railcar began spilling lime. A citizen called in a complaint that a white powder was "leaking heavily" from a railcar on a northbound train. The citizen added that there was a large cloud of dust associated with the leak. Union Pacific was notified of the complaint and stopped the train in Chowchilla.

The conductor and engineer of the train observed that railcar NRLX 46356 was carrying lime and that the railcar behind it was coated in a white substance. The conductor notified Union Pacific's dispatch office that the railcar was spilling lime. The conductor was directed to proceed without repair. Union Pacific did not notify the Office of Emergency Services or any local emergency responders of the spill.

The railcar continued to spill significant amounts of lime as the train proceeded northbound. Outside of Turlock, about 40 miles north of Chowchilla, Union Pacific was again notified of the spill. The conductor contacted dispatch and suggested that the train stop at the next siding, which was about three miles ahead. But the conductor was directed to proceed without repair to the Stockton rail yard, which was another 45 miles ahead. Railcar NRLX 46356 spilled approximately 15 tons of lime between Madera County and the Stockton rail yard.

Union Pacific did not make any notification of the spill until many hours after it became aware of the spill. When it did make notification, it told the Madera Environmental Health Department that the substance was limestone, which is much less caustic than lime. Union Pacific has refused to conduct any clean up of the spilled lime.

Lime is a potentially dangerous substance. Exposure to lime can result in irritation to the eyes, skin, and upper respiratory tract, ulceration or perforation of the nasal septum, pneumonia, and dermatitis. When lime is mixed with water, it can generate significant heat that may be sufficient to ignite combustible materials.

Powdered lime mixed with water can react with explosive violence.

Legal Requirements

Under the Resource Conservation and Recovery Act of 1976 (RCRA) (42 U.S.C. § 6901 et seq.), a hazardous waste is a material that, because of its quantity, concentration, or physical, chemical, or infectious characteristics may "cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness," or may "pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed." (42 U.S.C. § 6903(5).)

RCRA directed the federal Environmental Protection Agency (EPA) to establish criteria for identifying hazardous wastes and to establish lists of materials that constitute hazardous wastes. (42 U.S.C. § 6921.) The lists of specific hazardous materials established by the EPA are not all-inclusive. A material that meets the criteria of a hazardous waste is a hazardous waste even though it is not on the lists of specific hazardous wastes. (40 C.F.R. § 261.3(a)(2)(i) (2005); 61C Am.Jur.2d (1999) Pollution Control, § 1152, p. 306.)

RCRA authorizes states, with approval of the EPA, to establish their own programs in lieu of federal regulation, provided that state requirements are not less stringent than federal standards. (42 U.S.C. §§ 6926, 6929.) Pursuant to such authority, California's Legislature enacted a program for hazardous waste control. (Health & Saf.Code, § 25100 et seq.)

Under California's program, the Department of Toxic Substances Control has determined that calcium oxide, i.e., lime, meets the EPA's corrosivity criteria as a hazardous waste and has been listed as number 171, in appendix X, chapter 11, division 4.5, title 22, following section 66261.126, of the California Code of Regulations.²

The spillage of lime implicates a number of state statutory provisions.

Fish and Game Code section 5650, subdivision (a)(4) makes it unlawful to deposit lime in, permit lime to pass into, or place lime where it can pass into, the waters of this state. Section 5650.1 of the Fish and Game Code provides for civil penalties and injunctive relief for violations. Section 12015, subdivision (b) of that code imposes a cleanup obligation upon anyone who pollutes, contaminates, or obstructs, or who deposits or discharges materials threatening to pollute, contaminate, or obstruct, the waters of the state to the detriment of fish, plant, bird, or animal life in those waters.

Health and Safety Code section 25189, subdivision (d) imposes a civil penalty upon anyone who negligently disposes or causes the disposal of hazardous waste at a point which is not authorized.³ Section 25189.2 subdivision (c) of the Health and Safety Code imposes a civil penalty upon the unintentional and nonnegligent disposal of hazardous waste. Section 25189.1, subdivision (a) of that code imposes civil liability for costs incurred by state or local governments in assessing and remedying damage to natural resources from the unlawful disposal of hazardous waste.

Health and Safety Code section 25507, subdivision (a) requires that any handler of hazardous materials immediately report a release or threatened release of the material. Handlers of hazardous material are required to have a plan for responding to the release or threatened release of the material and to train employees in safety procedures in the event of such a release or threatened release. (Health & Saf. Code, §§ 25503.5, subd. (a); 25504.) Sections 25514 and 25516 of the Health and Safety Code provide for civil penalties and injunctive relief for violations.

Public Utilities Code section 7672.5 requires any railroad corporation involved in an incident resulting in a release or threatened release of a hazardous material to immediately report the type and extent of the release or threatened release in the manner specified in Health and Safety Code section 25507. Section...