The Fifth Circuit today affirmed an interlocutory judgment that held Union Pacific potentially responsible for clean-up of contamination on all contiguous tracts in a former railroad yard.  The plaintiff, Consolidated Companies, bought part of the old yard and used the property for a food warehouse and distribution facility.  Conco later discovered fuel oil and other hazardous substances there.  It sued Union Pacific, as successor to the previous owner, for damages and an injunction requiring Union Pacific to remediate the Conco site as well as the adjoining tracts.  Consolidated Companies Inc. v. Union Pacific R.R. Co., No. 06-30570 (5th Cir. Aug. 28, 2007).

The district court held a bench trial on the issue of whether the Conco and non-Conco land counted as one "facility" for purposes of the federal Resource Conservation Recovery Act and the Louisiana Environmental Quality Act.  The court answered "yes".  The Fifth Circuit affirmed, concluding that the relevant statutes defined "facility" as including tracts contiguous to or adjoining the land of the plaintiff.

Barry Barnett

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