JENNIFER GRZESKOWIAK

Legislation that would give state and local governments jurisdiction over rail-yard waste facilities continues to chug along. In late May, the U.S. House Subcommittee on Railroads held hearings on the issue, with testimony provided by the chairman of the Surface Transportation Board (STB), which currently has jurisdiction over the facilities; municipal and state representatives; and the National Solid Wastes Management Association (NSWMA).

To allow for efficient interstate rail transportation, rail yards are exempt from most state and local regulations under federal law. Prompted by the number of waste management sites being proposed and established at rail facilities, particularly in the Northeast, Rep. Frank Pallone, Jr., D-N.J., and then-Rep. Robert Menendez, D-N.J., have introduced H.R. 4821 and H.R. 3577, which aim to exclude the sites from STB's control and subject them to state and local regulations. Similar legislation has been introduced in the Senate.

Waste industry associations have objected to the fact that the rail-owned facilities do not have to obtain the state and local permits required for all other waste management operations. “If you allow any one class or type of facility to avoid [permits], your whole solid waste management system becomes compromised,” says John Skinner, executive director and CEO of the Solid Wastes Association of North America.

As chairman of the subcommittee, U.S. Rep. Steven LaTourette, R-Ohio, opened the hearings by saying, “Congress established federal preemption under the ICC [Interstate Commerce Commission] Termination Act to ensure the free flow of interstate commerce, not as a loophole to allow sharp operators to escape legitimate local regulation.”

He added that he was interested in finding out from STB Commissioner Douglas Buttrey “how we can ensure that federal preemption applies only to legitimate rail carriers.”

During his testimony, Buttrey addressed these concerns by saying that the board, too, is adamant about ensuring the legitimacy of the rail carriers and that the current system allows communities and states to pursue any grievances. “Cases involving solid waste transfer, storage and/or processing facilities proposed to be located along rail lines are especially controversial and often raise concerns that the operations could cause environmental harm,” he stated. “In every case, however, interested parties, communities and state and local authorities concerned about a proposal have recourse to the board or the courts.”

Yet Steve Changaris, Northeast regional manager for NSWMA, argues that it's difficult to take each of these cases on one by one. “Do you want a lot of little brush fires or do you just want to settle the issue,” he asks.

Kathy Chasey, mayor of Mullica, N.J., recently the proposed site of a rail-yard waste facility, testified about her community's experience. As part of the Pinelands, a national reserve, the township was able legally to stave off the facility with the help of the state attorney general and the Pinelands Commission. The railroad still has the option to pursue a lawsuit. “Our relief will never be more than temporary as long as the exemption stands in place,” Chasey says. “Our fortune to date has not come without a great emotional toll on myself, our governing body and the residents of our town who, of course, had to bear the financial impact of this battle.”

Regarding the hearings, Skinner says that he was disappointed by Buttrey's response and that STB was not taking a proactive role in trying to respond to the concerns that have been raised by many people. Both Skinner and Changaris, however, believe that the hearings are a step in the right direction. “Getting congressional attention to this was very much a part of what we were hoping to see happen,” the Changaris says. He adds that it's too early to determine the future of the bills, but that opponents of the facilities now have “another arrow in their quiver.”