Civil suit slams UP rail yard for pollution impact

A Roseville woman and her husband have filed a lawsuit against Union Pacific Railroad, alleging pollution from the company's J.R. Davis Yard is at fault for the thyroid cancer the woman was diagnosed with last year.Plaintiffs Malia Benson, 29, and her husband Michael, 30, also allege airborne toxics stemming from the Roseville rail yard have substantially devalued their Fourth Street home, making it virtually impossible to sell.The lawsuit claims chemicals known to cause cancer that emanate from the yard compromised the plaintiffs' health by contaminating the air at their home, located a few hundred yards from the facility, which stretches for four miles roughly alongside Interstate 80.The suit, filed Feb. 11 in U.S. District Court for the Eastern District of California in Sacramento, charges the company with trespass, negligence and private nuisance, according to a copy of the complaint.This is a woman from a family that has no history of cancer, no genetic basis or predisposition, and it is a type of cancer that results from this exposure, said Edward Brenner, the Sacramento-based attorney who is representing the plaintiffs.Officials with Union Pacific said Monday they could not comment on the case because the company's attorneys had yet to review it. Our lawyers haven't had a chance to look at it, said Union Pacific spokeswoman Zoe Richmond.The suit claims Delaware-based Union Pacific, whose J.R. Davis Yard in Roseville is the largest of its kind west on the West Coast, knew of the pollution risks but failed to warn residents.Union Pacific ¦has permitted unsafe levels of toxic air contaminants and did so knowing that the air pollutants may cause or contribute to an increase in mortality or an increase in serious illness and may pose a present or potential hazard to the public health, the lawsuit states.Malia Benson has undergone surgery to remove her thyroid and is currently on medication, her attorney said. The lawsuit seeks damages, the amount to be determined by the court, to cover medical care, legal expenses and lost property value, according to the nine-page complaint.While the plaintiffs would like to sell their home, they believe they would have to disclose the pollution impact to potential buyers, their attorney said, and would not be able to receive market value for the property.Her house is across the street and so she has to disclose this condition, he said, referring to the impact of pollution from the rail yard. That has a significant adverse impact on the value of property.Reached Monday, Malia Benson, who was diagnosed with thyroid cancer in November 2007, said she was unaware of the rail yard's potential health risks when she purchased the home, the couple's first, in 2002.It wasn't until she read press reports about the issue last year following a well-publicized study, she said, that she began to suspect the rail yard. Thousands of locomotives pass through the 950-acre classification facility each year, with many on their way to Portland, Sacramento or Reno.Here I am with cancer, and I started thinking about all the dust we have in our home and the chemicals they said are in the dirt, she said. Basically I just thought, I don't want to live here anymore. Who's going to want to live here?I feel my property is toxic, that it's just really not worth anything, she added.The suit references recent studies documenting pollution related to diesel emissions at the site, which primarily stems from idling locomotives, according to the studies.Late last year, a report issued by the nonprofit health group BreatheCalifornia disclosed high concentrations of certain carcinogenic materials " including polycyclic aromatic hydrocarbons, or PAH, a notorious carcinogen long implicated in a range of cancers " which the study's authors said could have come from rail diesel exhaust at the yard. It also found evidence of the potential re-suspension into the air of toxic soil contamination. (At the time, Union Pacific took issue with much of the study's findings.)That report followed a 2004 study issued by the California Air Resources Board, which found diesel particulate emissions from the rail yard would, in some areas, increase the risk of cancer diagnoses at a rate of 500 additional cases per million people. The rate of cancer for all cases in the general population is 200,000 to 250,000 per million people, according to the study. (The 2004 study also led to an agreement among the railroad, Placer County and other agencies to reduce rail yard pollution by 10 percent while monitoring the effort.)In one finding referenced in the lawsuit, cancer risk above the background rate increased to 950 per million people for those living within 300 feet of locomotive service area.The report of contaminated soil suspended into the atmosphere particularly worried Benson, she said.Pretty much ever since we lived here, I've had to vacuum our carpet every day, and the vacuum is just filled with fine silt dust, she said. I didn't know where it was coming from, but now I feel it's probably from the railroad.But plaintiffs will have to show that pollution from the yard specifically led to Benson's cancer, rather than an increased risk of cancer generally, said John Sprankling, a professor at McGeorge School of Law and a noted expert on property law.The biggest problem in a case like this is usually causation, he said. First, can any of these particular substances cause thyroid cancer, as a general matter? Second, did the defendant's release of that substance here actually cause this particular plaintiff's cancer? In order to win, the plaintiff must prove that the answer to both questions is ˜yes.'Placer County Air Quality Officer Tom Christofk, a key architect of the CARB study, said that report attempted to analyze the potential for health impacts in general, but stayed away from specifics.It doesn't define it by the type of cancer, he said. It doesn't break it at that level. So you can't say it's going to be leukemia or pancreatic cancer or lung cancer.Still, that doesn't mean the abstract data isn't reflected in particular cases.I would expect there are impacts, obviously, from pollution " cancer and other health impacts, he said.While declining to speak specifically about the pending case, the UP spokeswoman pointed to ongoing company efforts to reduce emissions impacts in general, and said rail carries some environmental benefit when compared with diesel trucks by getting them off the road.Trains are just inherently more environmentally friendly than trucks, Zoe Richmond said.For their part, the Bensons said they hope their lawsuit leads to an impact beyond the relief asked for in the lawsuit, such as increased mitigation efforts at the yard.They've been aware of it at least the past few years, Malia Benson said, referring to Union Pacific. We want them to do something about the problem. We want them to address that there is a problem.