PEOPLE v. UNION PACIFIC RAILROAD COMPANY
Filed 8/2/06
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
| THE PEOPLE, Plaintiff and Appellant, v. UNION PACIFIC RAILROAD COMPANY et al., Defendants and Respondents. |
C048336
(Super. Ct. No. CV022418)
|
APPEAL from a judgment of the Superior Court of San Joaquin County, Carter P. Holly, Judge. Reversed.
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; Michael L. Whitcomb, Joseph P. Mascovich; Reed Smith and Joseph P. Mascovich for Defendant and Respondent Union Pacific Railroad Company.
Morrison & Foerster, Andrew B. Sabey and Robin S. Stafford for Defendant and Respondent Chemical Lime Company of Arizona.
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.) 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 â€
