Summary of Union Pacific's Response to EPA's Unilateral Order Mandating Cleanup of the Omaha Lead Site
Omaha, Neb, January 4, 2006 The U.S. Environmental Protection Agency (EPA) has issued a unilateral administrative order (UAO or Order) requiring Union Pacific to spend $50 million or more to clean up lead-contaminated soil at residences in the Omaha area (Omaha Lead Site or OLS), with the prospect of additional cleanup liability to follow. If Union Pacific fails to comply with the Order without sufficient cause, the company may face penalties under the Superfund statute of $32,500 per day and/or damages equal to three times the cost of cleanup.
This Order, which became effective on December 16, 2005, is completely unprecedented, grossly inequitable, and illegal. It is based on the fact that over 60 years ago, Union Pacific leased property to ASARCO, which operated a smelter that allegedly discharged lead particles. But the Superfund law imposes liability only on parties who owned or operated contaminated sites or arranged for the disposal of hazardous substances on such sites. Union Pacific clearly does not fall into any of those categories.
Despite having no liability for cleanup, Union Pacific, as a responsible member of the Omaha community and in the interest of protecting public health, has offered to perform more than $15 million worth of cleanup activities at the OLS. EPA has declined this offer and has instead insisted that Union Pacific finance the entire remaining cleanup specified by the Interim Record of Decision. This demand is unjustified for the following reasons:
- Union Pacific is not responsible for contributing even one molecule of lead to the OLS.
- Union Pacific owned a portion of the land on which the ASARCO smelter was located for a limited period of time in the first half of the 20th century. This land is a considerable distance away from the OLS. There has never been a single Superfund case in which a lessor has been held liable under the circumstances applicable here.
- EPA is seeking to hold Union Pacific solely liable even though there are a number of responsible parties who actually discharged lead in the Omaha area.
- Even if Union Pacific were deemed liable, it could only be liable for a small fraction of cleanup costs, given the existence of other responsible parties and its limited ownership of the smelter property.
- The primary source of lead that has given rise to concern over children’s blood lead levels is lead paint, which, according to Congress, "is the most common cause of lead poisoning in children." Union Pacific, of course, has nothing whatsoever to do with the presence of lead paint on residences in the Omaha community.
- EPA’s cleanup plan would do nothing to address concerns associated with lead-based paint.
- Although Union Pacific is in no way responsible for the OLS contamination, Union Pacific has offered to clean up hundreds of yards, perform additional studies, and help fund the Omaha Healthy Kids Alliance in order to implement a comprehensive approach to lowering blood lead levels in Omaha’s children.
- Enforcing the UAO against Union Pacific will disrupt progress toward a comprehensive remedy that addresses the primary sources of lead.
- Finally, UAO’s are so draconian that they are supposed to be used only where there is an imminent threat to public health or the environment. But the highest priority residential sites already have been cleaned up, and it is clear that the children with elevated blood lead levels all live in older homes that are likely to be coated with lead-based paint -- a problem that is ignored by the UAO.
EPA is wielding the enormous club that is the Superfund UAO to force Union Pacific to perform a cleanup for which Union Pacific bears no responsibility. Union Pacific is simply a convenient "deep pocket." EPA’s action contradicts the law and is highly inequitable, especially since Union Pacific has offered to contribute millions toward cleanup and to support efforts to address other, more significant sources of lead in the community. As a result, Union Pacific calls upon EPA to withdraw the UAO and work with Union Pacific on a comprehensive approach to the OLS.
Media contact is Kathryn Blackwell – (402) 544-3753.
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