Energy & Environment

Houston and Harris County plan to sue Union Pacific over 5th Ward pollution

Officials say they foresee a quicker resolution with the threat of a lawsuit.


Lucio Vasquez / Houston Public Media
The Union Pacific Railyard, located near Kashmere Gardens. Residents say the railyard is responsible for the cancer cluster in Kashmere Gardens. Taken on Jan. 27, 2021.

Houston and Harris County leaders said they're suing Union Pacific Railroad for what they say is the company's role in creosote contamination in the Fifth Ward.

The announcement of the lawsuit, which was not yet filed as of Wednesday evening, comes about two weeks after testing found traces of a toxic chemical in the soil near a Union Pacific railyard.

Officials say they foresee a quicker resolution with the threat of a lawsuit under the Resource Conservation and Recovery Act, a federal law enacted in 1976 that regulates hazardous waste disposal.

“If UP will not make truly meaningful changes to address the pollution with our lawsuits by the city, county and the community, then we will seek justice at the courthouse,” Houston Mayor Sylvester Turner said.

A Union Pacific railyard near the historically Black and Hispanic community is the site of a former industrial facility where wooden railroad ties were treated with a chemical called creosote, a likely human carcinogen. Two weeks ago, the Houston Health Department found traces of dioxin in the soil around the railyard — another likely carcinogen.

The neighborhood was named a cancer cluster in 2019. Local leaders say leukemia rates in Kashmere Gardens are five times the state average.

“We cannot ignore Fifth Ward,” Harris County attorney Christian Menefee said. “This is a community that has higher rates of cancer, higher rates of asthma, higher rates of (chronic obstructive pulmonary disease) than other areas in the county and our county is already at the center of the environmental justice movement.”

Just last week the Texas Supreme Court ruled that Union Pacific could not have a complaint from nearby residents thrown out under the Texas Citizens Participation Act, a statute meant to shield parties from nuisance lawsuits. In that suit, the residents argued the company did not adequately warn them about the soil and groundwater contaminants.

The Bayou City Initiative is one of the groups who filed the notice of intent to sue under the RCRA. BCI founder Jim Blackburn said the state has taken too long to address the problems in the Fifth Ward.

‘The Texas Commission on Environmental Quality process is quite slow and cumbersome, and several cancer clusters have been identified by the Texas Department of Health,” Blackburn said. “It is time for this process to be expedited and this notice of intent to sue starts the process for a direct filing in federal district court.”

The intent to sue includes a suggested remedies like a buy out or relocation program for residents who live in the Fifth Ward and have been exposed, an adequate cleanup program, and addressing flooding problems in the area.

In an email, a Union Pacific spokesperson said the company was awaiting a permit from the TCEQ to begin remediation of the contaminated site.

“US EPA guidance states that the underground slurry wall we are proposing will prevent further migration of contaminants off site. Additionally, we are proposing to increase underground creosote extraction and additional monitoring at and around the site,” said the spokesperson, Robynn Tysver. “We are currently reviewing the RCRA Notices that the City and County issued and look forward to continuing our commitment to transparency in our efforts to clean-up the site in future meetings with them.”

Sandra Edwards, a community activist, spoke to how the creosote contamination has taken a toll on her, the community and her loved ones.

“This fight has affected me, my family, the community, everybody I have, I love, most of them have died,” she said. “I watched the kid last year, all the way until his death. We had a celebration for him. That took a big bite out of my life, to see this baby die from something and nobody has done nothing until now.

Joetta Stevenson also spoke alongside elected officials about how the cancer cluster as affected her.

“It’s not about me, it’s not about Sandra; it’s about an entire community,” Stevenson said. “It’s about the thousands of people who were born in Fifth Ward like myself, born with bronchitis. It’s about people who I’ve lost, and I lost a good friend when I was a little girl. He died of leukemia. I had no idea about the connection even then. We’re blindsided. We live in a community we love but we’re being poisoned every day, and we begged we pleaded and we fought.”