US and State of Nebraska v. Union Pacific Railroad Co., Union Pacific Corp., and Gould Electronics Inc. Complaint

This 2011 legal complaint documents the official determination of Union Pacific Railroad Co., Union Pacific Corp., and Gould Electronics Inc. as responsible parties under CERCLA Section 107, demanding they pay for lead contamination remediation and response actions.

Filed by the United States EPA and the State of Nebraska, this complaint concerns the two lead smelting facilities ran by Union Pacific and Gould. Relevantly, Omaha’s first and largest smelter was ASARCO’s facility built at the end of the 19th century on property leased from and owned by UP. Gould’s battery recycling plant was built in the 1950’s.[1] Guilty for the area air and soil lead contamination, these companies faced hefty charges.

Back in August 1999, the EPA ordered ASARCO to comply with CERCLA and to perform the necessary removal action; ASARCO refused. The EPA proceeded with removal action, fronting the costs, and this document demands a refund.

This legal complaint hinges off of a previous artifact; in the finding of Union Pacific Railroad Co., Union Pacific Corp., and Gould to be liable for the harms of Omaha’s Lead site, relevant is Section 107 of CERCLA that maintains that the owner or operator of a hazardous facility “shall be liable for all costs of removal or remedial action incurred by the United States Government or a State”.[2]

This claim for relief states that “Defendants UP and Gould are therefore liable under Sections of CERCLA… for all costs incurred by the United States in response to releases of hazardous substances at and from the facilities”.[3] This complaint provides a designation of trial location and an anticipation of the Court “find[ing] each Defendant jointly and severally liable” for the hazards and for all unreimbursed costs.

This is a valiant effort, predating all trials, by the EPA to ensure that responsible parties pay. There is no provision of quantifiable liabilities in this complaint, so gauging the harm for which these companies are responsible is quite difficult. One can recognize, however, the first step of identifying responsible parties and asserting their liabilities.

This is relevant beyond the Omaha lead site context, because this demonstrates the large task of holding responsible parties liable for their environmentally destructive actions and subjection of populations to harm. Expression of the EPA's previous (unsuccessful) attempts to work with UP and Gould proves the complications of collaboration with guilty parties and the general lack of cooperation found in environmentally hazardous dealings.

[1] US and State of Nebraska v. Union Pacific Railroad Co., Union Pacific Corp., and Gould Electronics Inc. Complaint. (2011).

[2] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (1980).

[3] US and State of Nebraska v. Union Pacific Railroad Co., Union Pacific Corp., and Gould Electronics Inc. Complaint. (2011).