Railroad Legal Issues and Resources (2015)

Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

76 warrant requirements of the Fourth Amendment.333 H. Genetic Testing 463 An article entitled Workplace Privacy and Discrimination Issues Related to Genetic Data: A Comparative Law Study of the European Union and the United States explains how employers may use samples of bodily fluids to obtain medical information on employees without their knowledge.334 XX. ENVIRONMENTAL LAW AND RAILROADS 464 A. Introduction 464 This part of the digest discusses various environmental requirements that are applicable to railroads. Section B discusses the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) and the liability of railroad companies for the release of hazardous substances. Section C discusses environmental requirements for permits for new facilities. Section D addresses issues concerning the Hazardous Materials Transportation Act (HMTA). Section E discusses the requirements of NEPA, as well as regulations of FRA and STB that are applicable to railroads. Section F summarizes an article on federal preemption of local air quality laws and regulations. B. The Comprehensive Environmental Response Compensation 464 and Liability Act Statutes and Regulations 464 1. Liability Under CERCLA 464 Under CERCLA a railroad company may be held liable, inter alia, as the “owner and operator of a vessel or a facility” for a disposal of hazardous substances,335 unless the release or threatened release of hazardous substances was caused solely by “an act or omission of a third party other than an employee or agent of the defendant.”336 333 Fabio Arcila, Jr., Special Needs and Special Deference: Suspicionless Civil Searches in the Modern Regulatory State, 56 ADMIN. L. REV. 1223, 1224 (2004). 334 Nancy J. King, Sukanya Pillay & Gail A. Lasprogata, Workplace Privacy and Discrimination Issues Related to Genetic Data: A Comparative Law Study of the European Union and the United States, 43 AM. BUS. L.J. 79 (2006). 335 See 42 U.S.C. §§ 9607(a)(1)–(4) (2014). 336 See 42 U.S.C. §§ 9607(b)(1)–(3) (2014).

77 2. EPA Enforcement and Civil Proceedings Under CERCLA 465 Liability and fines apportioned by the U.S. Environmental Protection Agency (EPA) to an entity that has violated CERCLA may be challenged in a federal district court.337 Cases 468 3. Unilateral Administrative Orders Issued by the EPA Do Not 468 Violate the Fifth Amendment In General Electric v. Jackson,338 the District of Columbia Circuit held that the EPA’s issuance of a unilateral administrative order (UAO) under CERCLA does not violate the Due Process Clause of the Fifth Amendment of the U.S. Constitution because the potentially responsible parties (PRPs) are only fined when a federal court finds that a PRP without sufficient cause willfully failed to comply with a proper UAO. 4. Apportionment Under CERCLA of Costs Among 470 Responsible Parties In Burlington Northern and Santa Fe Railroad Co. v. United States,339 the Supreme Court held that “an entity may qualify as an arranger under § 9607(a)(3) when it takes intentional steps to dispose of a hazardous substance,” and that liability may be apportioned when there is a basis for determining the contribution of each cause to the single harm.340 Statute 471 5. Liability Under State Law that Incorporates CERCLA 471 In Redevelopment Agency of City of Stockton v. BNSF Railroad Co.,341 the Ninth Circuit held that a local redevelopment agency could recover its costs for contamination remediation in a redevelopment area from any “responsible party” under California’s Polanco Act, which incorporates CERCLA.342 337 42 U.S.C. §§ 9609(a)(4) and 9613 (2014). 338 610 F.3d 110, 113, 118–119 (D.C. Cir. 2010), rehearing denied by, rehearing, en banc, denied , 2010 U.S. App. LEXIS 27485 (D.C. Cir., Sept. 30, 2010), cert. denied, 131 S. Ct. 2959, 180 L. Ed. 2d 245, 2011 U.S. LEXIS 4334 (U.S. 2011). 339 556 U.S. 599, 129 S. Ct. 1870, 1881, 173 L. Ed. 2d 812 (2009). 340 Id., 556 U.S. at 611, 129 S. Ct. at 1879, 173 L. Ed. 2d at 823. 341 643 F.3d 668 (9th Cir. 2011). 342 Id. at 676.

78 Case 471 6. Railroads Not Liable Because They Were Not Owners or 471 Operators nor did They Create or Assist in Creating a Nuisance In Redevelopment Agency of City of Stockton, supra, Part XX.B.5, the Ninth Circuit also held that the railroads could not be held liable if they were not owners or operators within the meaning of the CERCLA definition incorporated in the state statute and if they had not created or assisted in creating the nuisance, unless they acted unreasonably in failing to recognize or stop it.343 Statutes 475 7. Kentucky Statute on Contamination Caused by 475 Hazardous Substances A Kentucky statute applies, inter alia, to reportable quantities and release notification requirements for a release of hazardous substances, pollutants, or contaminants and remedial action to restore the environment.344 8. Liability Under an Indiana Statute to the Same Extent as 475 Under CERCLA An Indiana statute provides that except as otherwise provided in the statute, a person liable under CERCLA is liable to the state of Indiana in the same manner and to the same extent.345 9. Liability Under the Pennsylvania Hazardous Sites Cleanup Act 475 Pennsylvania has its own cleanup statute, the Pennsylvania Hazardous Sites Cleanup Act (HSCA), which provides a remedy for expenses caused by releases of hazardous substances.346 343 Redevelopment Agency of City of Stockton, 643 F.3d at 673. 344 KY. REV. STAT. ANN. § 224.1-400 (2014). 345 IND. CODE ANN. § 13-25-4-8 (2014). 346 35 PA. CONS. STAT. ANN. § 6020.102(8) (2014).

79 Cases 475 10. Railroads May Bring Claim for Contribution Under CERCLA 475 and HSCA In Reading Co. v. City of Philadelphia,347 a federal district court held that the Reading Company (Reading) could maintain its claim against the City of Philadelphia and other defendants under CERCLA and Pennsylvania’s Hazardous Sites Cleanup Act (HSCA) for the defendants’ share of clean-up costs already incurred and for future costs for the removal of polychlorinated biphenyls (PCBs) from a viaduct. 11. Liability Under Washington’s Model Toxics Control Act for 476 Environmental Cleanup A case involving Washington’s Model Toxics Control Act (MTCA)348 is Harbor Steps Limited Partnership v. Seattle Technical Finishing, Inc.,349 in which the previous owner, Burlington Northern, was sued for cleanup expenses for contaminated land, but a Washington appellate court held that Burlington Northern had only a security interest in the property when the property became contaminated. Articles 477 12. Survey of States with CERCLA-Type Laws 477 An article entitled Natural Resource Damages: Recovery under State Law Compared with Federal Laws includes a survey of state “environmental statutes for CERCLA-type laws pertaining to the release of a hazardous substance.”350 13. History of EPA’s Enforcement of CERCLA 477 An article in the Southwestern Law Review summarizes the enforcement of CERCLA by the EPA from its inception through the first 3 years of President Barack Obama’s presidency.351 347 823 F. Supp. 1218, 1221–22 (E.D. Pa. 1993). 348 WASH. REV. CODE ANN. § 70.105D.040 (2014). 349 93 Wash. App. 795, 970 P.2d 797, 789–99 (1999). 350 Lloyd W. Landreth & Kevin M. Ward, Natural Resource Damages: Recovery Under State Law Compared with Federal Laws, 20 ENVIR. L. REP. 10134 (1990), available at http://elr.info/sites/default/files/articles/20.10134.htm (last accessed Mar. 31, 2015). 351 Joel A. Mintz, EPA Enforcement of CERCLA: Historical Overview and Recent Trends, 41 SW. L. REV. 645 (2012).

80 14. CERCLA in the Ninth Circuit 479 A 2012 law review article reviews some significant cases in the Ninth Circuit on environmental law and examines the application of CERCLA to railroads and other entities, such as manufacturers and maritime bodies.352 15. Remedies Available Under State Statutory and Common Law 479 for Damages and Other Relief for Contaminated Property In a 2012 law review article, Professor Alexandra Klass makes a strong case for the importance of state statutory and common law claims for contaminated property. Professor Klass argues that the “real money” is not “in the cleanup costs one can recover under CERCLA or state superfund laws” but is instead “in the damages that are potentially recoverable, including punitive damages, under state common law claims such as nuisance, negligence, or strict liability.”353 C. Environmental Requirements for Permits for New Facilities 482 Statutes and Regulations 482 1. The Clean Railroads Act 482 The Clean Railroads Act provides in part that a solid waste rail transfer facility must comply with all applicable federal and state requirements to prevent and abate pollution and to protect and restore the environment and protect public health and safety, including laws governing solid waste “as required for any similar solid waste management facility…that is not owned or operated by or on behalf of a rail carrier, except as provided for in section 10909 of this chapter.”354 2. Requirement for Notice of Intent to Apply for a Land-Use- 483 Exemption Permit A solid waste facility or railroad that owns a facility must first submit a notice of intent to the STB to file an application for a land-use-exemption permit.355 352 Case Summaries 2011 Ninth Circuit Environmental Review Case Summaries, 42 ENVTL. L. 793, 820, 831 (2012). 353 Alexandra B. Klass, CERCLA, State Law, and Federalism in the 21st Century, 41 SW. L. REV. 679, 680 (2012). 354 49 U.S.C. § 10908(a) (2014). 355 49 C.F.R. § 1155.20(a) (2014).

81 3. Board Determinations on an Exemption Permit 484 STB “will issue a land-use-exemption permit only if it determines that the facility at the existing or proposed location would not pose an unreasonable risk to public health, safety, or the environment” and meets other requirements.356 Case 484 4. Preemption of State Regulations by the Interstate Commerce 484 Commission Termination Act In New York Susquehanna and Western Railroad Corp. v. Jackson,357 the issue was whether the ICCTA preempted state regulations for the practice of transloading solid waste from a truck to a railroad car and related facilities. The Third Circuit vacated an injunction against New Jersey that had prevented the state from enforcing the regulations and remanded the case for further fact finding.358 Articles 486 5. Railroad Deregulation and Waste Transfer Stations and the 486 Presumption Against Preemption An article in the Ecology Law Quarterly argues that the “[p]reemption doctrine is potentially a great obstacle to progressive state policies,” because “truck-to-truck and truck-to- barge transfer stations remain highly regulated, but truck-to-rail transfer stations are completely unregulated,” a “regulatory gap” for which the author believes STB is responsible.359 6. Whether “Little NEPA” Laws and State and Local Permitting 488 Requirements Are Preempted by the ICCTA A report published by the Center for Climate Change at Columbia Law School analyzes the effect of federal environmental laws on permitting requirements affecting new railroad infrastructure for the movement of coal to ports for export and concludes that there is 356 49 U.S.C. § 10901 (2014). See also 49 U.S.C. § 10901(2) (2014) and 49 C.F. R. §§ 1155.26(b)(1)-(3) (2014). 357 500 F.3d 238 (3d Cir. 2007). 358 Id. at 257. 359 Carter H. Strickland Jr., Revitalizing the Presumption Against Preemption to Prevent Regulatory Gaps: Railroad Deregulation and Waste Transfer Stations, 34 ECOLOGY L.Q. 1147, 1151, 1172 (2007).

82 “significant uncertainty” regarding the relationship of the ICCTA and the Clean Railroads Act on the issue.360 D. Transportation of Hazardous Materials 491 Statutes and Regulations 491 1. Hazardous Materials Transportation Act 491 The HMTA authorizes the Secretary of Transportation to issue regulations “for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce.”361 2. Regulations Implementing the Hazardous Materials 492 Transportation Act FRA’s regulations on the safety of the transportation by rail of hazardous materials apply to persons who perform pretransportation or transportation services and establish minimum criteria that must be considered by rail carriers, such as a thorough analysis of the hazardous materials to be shipped, the routes to be used, a description of the threats identified, and vulnerabilities and mitigation measures to address the vulnerabilities.362 Cases 492 3. Tension Between Environmental Requirements and the 492 Fourth Amendment In Wisconsin Central Limited v. Gottlieb,363 the Wisconsin Court of Appeals decided whether the Wisconsin Department of Transportation (WisDOT) had to have a search warrant to collect soil samples for a study on changing the path of a railroad track. The court held that there was no illegal search and seizure because the Wisconsin Central Limited had cosponsored and consented to WisDOT’s investigation of hazardous materials. 360 Columbia Law School, Center for Climate Change Law, Report on “Carbon Offshoring: The Legal and Regulatory Framework for U.S. Coal Exports” (July 2011), available at http://powerpastcoal.org/wp- content/uploads/2011/09/ColumbiaLawSchool_coalexportpolicy11.pdf (last accessed Mar. 31, 2015). 361 49 U.S.C. § 5103(b)(1) (2014). 362 49 C.F.R. §§ 172.820(a)-(d) (2014). 363 832 N.W.2d 359 (Wis. Ct. App. 2013).

83 4. Federal Railroad Safety Act and Preemption of Local Law 493 In CSX Transportation, Inc. v. Williams,364 the District of Columbia Circuit held that the FRSA preempted the District of Columbia’s Terrorism Prevention in Hazardous Materials Transportation Emergency Act of 2005. E. National Environmental Policy Act and Requirements 494 Statutes and Regulations 494 1. National Environmental Policy Act 494 NEPA, signed into law by President Nixon on January 1, 1970,365 sets forth when an environmental impact statement (EIS) is required and the information that it must contain; mandates that agencies must cooperate in complying with NEPA;366 and requires that administrative procedures conform to national environmental policy.367 2. Department of Transportation 495 Under 49 U.S.C. § 303, which applies to parks, recreation areas, wildlife or waterfowl refuges, and historic sites, the Secretary may approve a project requiring the use of public land only if there is no alternative to using the land and there are plans in place to minimize harm to the site and wildlife, or find that a project will have a de minimis impact on historic sites or parks, recreation areas, wildlife, or waterfowl refuges.368 3. Federal Railroad Administration 496 FRA and STB are subject to NEPA because both engage in “major federal actions affecting the human environment” and thus are required to have environmental assessments or EIS’s as appropriate.369 364 406 F.3d 667, 669 (D.C. Cir. 2005). 365 42 U.S.C. § 4321 (2014). 366 42 U.S.C. § 4332(C) (2014). 367 42 U.S.C. § 4332 (2014). 368 49 U.S.C. § 303(d) (2014). 369 42 U.S.C. § 4332 (2014).

84 5. Surface Transportation Board 498 STB is responsible for ensuring that railroads meet the requirements of NEPA for actions that are subject to NEPA and to the board’s jurisdiction.370 6. Railroads, Environmental Documents, and Findings 500 a. Environmental Reports 500 An applicant for an action identified in 49 C.F.R. §§ 1105.6(a) and (b) (that is, a proposed action that may require an EIS or an Environmental Assessment (EA), respectively) must submit, except in the situations noted in the regulations, an Environmental Report (ER) on the proposed action containing the information required by §§ 1105.7(e)(1)–(10).371 b. Environmental Assessment 501 STB and FRA may require either an EIS or an EA, but an EA must be prepared prior to all major FRA actions.372 c. Categorical Exclusions 502 A proposed action may qualify for a categorical exclusion (CE), meaning that an EA or an EIS is not required.373 CEs are actions that “do not individually or cumulatively have a significant effect on the human environment and [that] have been found to have no such effect in procedures adopted by a Federal agency in [the] implementation of these regulations.”374 d. A Finding of No Significant Impact 503 Under the FRA’s procedures, “[a] FONSI shall be prepared for all major FRA actions for which an environmental impact statement is not required[] as determined in accordance with section 10(e) of these Procedures.”375 370 42 U.S.C. § 4332 (2014). 371 49 C.F.R. § 1105(7)(a) (2014). 372 40 C.F.R. § 1508.4 (2014). 373 Id. 374 Id. 375 United States Department of Transportation, Federal Railroad Administration, Procedures for Considering Environmental Impacts, 64 Fed. Reg. 28545, 28551 (May 26, 1999).

85 e. Environmental Impact Statement 504 NEPA requires that all federal agencies submit a “detailed statement” on the environmental impact of any proposed major federal action.376 Cases 505 6. Judicial Review of Petitions Challenging an STB Decision 505 In Alaska Survival v. Surface Transportation Board,377 the Ninth Circuit considered whether environmental requirements under NEPA and the provisions of the ICCTA governing railroad expansions allow the court to review a decision of the STB. The court held that the STB considered sufficient alternatives to satisfy the public and private objectives for the project and made an informed decision on whether to grant an exemption.378 7. Reasonable Basis for a Finding of No Significant Impact 507 In Township of Belleville v. Federal Transit Administration,379 the issue was whether the defendants met the required federal statutory provisions for a FONSI. A federal district court in New Jersey held that FTA acted reasonably in requiring an EA to be prepared because “[t]he base facility is to be constructed on a site zoned for industrial purposes” and “[t]hat portion of the project falls squarely within the categorical exception.”380 8. Requirement that the STB Take a Hard Look When Considering 508 Environmental Impacts In Northern Plains Resource Council v. Surface Transportation Board,381 in which the issue was whether a railroad company’s applications to build a new track were properly approved, the Ninth Circuit held that the board did not satisfy NEPA’s requirements in its preparation of the EIS, in part because of the use of outdated aerial survey photographs. 376 42 U.S.C. § 4332(2)(C) (2014). 377 705 F.3d 1073 (9th Cir. 2013). 378 Id. at 1089. 379 30 F. Supp. 2d 782 (D. N.J. 1998). 380 Id. at 798. 381 668 F.3d 1067, 1086–87 (9th Cir. 2011).

86 9. The STB’s Authority to Impose Environmental Conditions on 510 Minor Mergers In Village of Barrington v. Surface Transportation Board,382 the District of Columbia Circuit held that the Staggers Rail Act did not foreclose STB from imposing environmental conditions on minor mergers. 10. Requirement of Cooperation of Federal and State Agencies 512 Judicial Watch Inc. v. United States Department of Transportation383 concerned a joint agreement of FRA and the California High Speed Rail Association to work together to create Environmental Impact Reports. A federal district court in the District of Columbia granted the defendant’s motion for summary judgment because the agencies were working together as required by NEPA. 11. Requirement that STB Cooperate with Other Agencies 512 In Medina County Environmental Action Association v. Surface Transportation Board,384 the issue was whether STB improperly granted an exception without consulting with other agencies, namely the U.S. Fish and Wildlife Service (FWS). The Fifth Circuit held that STB’s informal consultation with the FWS, combined with the EIS, was sufficient to satisfy procedural requirements and denied the plaintiff’s petition for review. 12. State Environmental Law and Archaeological 514 Impact Statements In Kaleikini v. Yoshioka,385 the petitioner sought a declaration that the final EIS was “unacceptable,” inter alia, because it did not include an Archeological Impact Statement (AIS) and was inadequate for failing to consider the impacts that the construction would have on native artifacts.386 The Supreme Court of Hawaii agreed with the City and held that the EIS only needed to comply “in good faith” with the regulatory requirements, a test that the EIS satisfied.387 382 636 F.3d 650, 673 (D.C. Cir. 2011). 383 950 F. Supp. 2d 213, 214 (D. D.C. 2013). 384 602 F.3d 687, 693 (5th Cir. 2010). 385 283 P.3d 60 (Haw. 2012). 386 Id. at 68. 387 Id. at 83, 84.

87 13. Environmental Impact Statement Required to Consider 516 Socioeconomic Impacts on the Local Population In Saint Paul Branch of the National Association for the Advancement of Colored People v. United States Department of Transportation,388 the issue was whether the final EIS (FEIS) failed to consider properly the impact of the construction of a light rail project on a primarily African-American residential neighborhood with low-income businesses. A federal district court in Minnesota held that the FEIS was insufficient in its consideration of lost business revenue as a consequence of the light rail construction.389 14. STB’s Adequate Consideration of Alternatives and of 517 Horn Noise In Mayo Foundation v. Surface Transportation Board,390 the issue was whether STB approved the updating and building of new rail lines without considering alternative routes. The Eighth Circuit held that “[t]he Board is required to consider all ‘reasonable’ alternatives” but is not required “to consider alternatives that would frustrate the very purpose of the project.”391 Article 518 15. NEPA and the Role of Public Comments 518 A recent law review article discusses how the inclusion of public comments has influenced decisions by the courts on the issue of compliance with NEPA.392 Article 519 F. Federal Law Preempts Local District’s Air Quality Rules 519 As discussed in a recent article, California has 35 air quality management districts and each is responsible for proposing and creating air quality rules in its district.393 The South Coast 388 764 F. Supp. 2d 1092 (D. Minn. 2011). 389 Id. at 1112–13. 390 472 F.3d 545 (8th Cir. 2006). 391 Id. at 550 (citations omitted). 392 Michael C. Blumm & Marla Nelson, Pluralism and the Environment Revisited: The Role of Comment Agencies in NEPA Litigation, 37 VT. L. REV. 5 (2012). 393 Mike Cherney, 9th Circuit Finds Calif. Railroad Pollution Laws Preempted, Law360, available at http://www.mayerbrown.com/files/News/1886584c-3771-45fe-a5a6- 088affd3492e/Presentation/NewsAttachment/375bc41b-c80d-4c18-a307-c83b80f1c328/9thCirc- Finds_Calif.pdf (last accessed Mar. 31, 2015), herein referred to as “Cherney.”