The Following letter was sent to various elected officials yesterday regarding the
SurfaceTransportation Board and a possible loophole which may allow certain waste haulers to operate without any state or local land use and environmental regulation :
Re: Village of Croton-on-Hudson
Transfer Station and Exemption from State and Local Regulation
Mayor Gregory Schmidt and the Board of Trustees requested that I write to you with regard to a huge loophole that may have been created by the Interstate Commerce Commission Termination Act, which permits certain waste haulers to operate without any state or local land use and environmental regulation. The Termination Act granted the Surface Transportation Board (STB) exclusive jurisdiction over railroads and rail transportation, and entities within that jurisdiction are exempt from state and local land use and environmental laws.
Enclosed is a packet of information assembled by Leo Wiegman, one of the Village’s trustees. It provides a thorough explanation of this “loophole” issue, along with press clippings on the issue. In this letter, I will try to describe, fairly succinctly, why this issue is of urgent importance to Croton-on-Hudson.
Recently, in at least Massachusetts and New Jersey – and now New York – solid waste facilities have located near a side rail within STB jurisdiction and have claimed to be exempt from state and local regulation. As you can see from the enclosed articles, in North Bergen, New Jersey, the STB exempted a waste management facility located close to a railroad from state and local regulation, even in the face of opposition from the New Jersey Department of Environmental Protection. Within the last three months, the STB voted to deny New England Transrail’s petition to be recognized as a railway, in an attempt to avoid state and local rules that would apply to its waste hauling business in Massachusetts. The STB stated that its denial was based on procedure and not on the merits of the application. With respect to New England Transrail’s application, the STB received significant public input from the Massachusetts Municipal Association, the State Department of Environmental
Protection, the state Attorney General’s office, and members of the state’s Congressional delegation, all opposing the “railroad’s” attempt to bypass state and local regulation.
Much to the Village’s dismay, this giant loophole has become an issue in Croton-on-Hudson. On August 1, 2005, a Notice of Exempt Transaction was filed with the Surface Transportation Board by an outfit called “Northeast Interchange Railway (NIR).” NIR intends to purchase all the assets of Metro Enviro, a construction and debris hauler and processor that has operated for the past five years in Croton-on-Hudson, but, as detailed below, no longer has a permit to operate in Croton. NIR is not now a rail carrier but seeks to become a rail carrier, even though it appears that its business will start out the same as Metro Enviro’s and grow beyond that. In its notice, NIR advised that it
has reached an agreement . . . to acquire ownership of Metro Enviro Transfer, LLC (“Metro”) . . . . The assets of Metro include a lease from Greentree Realty, LLC (“Greentree”) of an approximately 10 acre parcel of real estate located in Croton-on-Hudson. The leased property includes approximately 1,600 feet of track that connects with the Hudson line of CSX Transportation.
The notice goes on to explain:
The rail transportation business on the line and such 10 acre parcel of property has consisted primarily of the transloading of construction and demolition waste material from trucks to rail cars for shipment by rail to disposal sites.
* * * *
By means of this transaction, NIR, a noncarrier, intends to become a common carrier by rail, and its entire rail line will initially consist of the 1,600 foot track. NIR will provide rail transportation service for the transloading of construction and demolition waste , and other materials, and it intends to build additional tracks on the leased property to serve other rail customers . . . .
A copy of NIR’s Notice of Exempt Transaction is enclosed. Also enclosed is a copy of the papers the Village served in opposition to the Notice. Just today, the STB issued a decision staying the Notice of Exempt Transaction until further order of the STB and directing NIR to reply to the Village’s papers by August 15, 2005. A copy of this decision is also enclosed.
By way of background, Metro Enviro was (and still is) conducting a construction and demolition waste operation under a special permit from the Village of Croton-on-Hudson. Metro Enviro’s facility is located adjacent to the railroad tracks in Croton-on-Hudson, and the property it leases includes a 1,600 foot length of track. Metro Enviro’s special use permit expired in 2001 and, in early 2003, because of persistent and substantial violations of the conditions of its special permit, the Village decided not to renew the special use permit.
Metro Enviro challenged the denial of the special permit and, after two years of litigation through all levels of the New York courts, on July 1, 2005, the New York Court of Appeals upheld the Village’s denial of the special permit. In upholding the Village’s decision, the Court of Appeals stated: “the Board was entitled to conclude that the history of repeated, willful violations created an unacceptable threat of future injury to health or the environment.” The Village directed Metro Enviro to cease accepting any more waste at the Croton site by July 23, 2005. Metro Enviro, however, brought another action in the Westchester County Supreme Court and obtained a temporary restraining order enjoining the closing. That TRO is still in effect, but, hopefully, will be lifted shortly.
Now, it appears that another waste hauler – this time, disguising as NIR railway – is availing itself of the Termination Act’s exemption for railways to conduct the same solid waste business, BUT, this time, without any state or local land use or environmental regulation.
Just as appalling as the substantive provisions of the Termination Act that permit this subterfuge are the procedural provisions that permit such exemption without any notice to the relevant state and local governments. The Village learned of NIR’s Notice of Exemption only fortuitously and because of the extraordinary vigilance of its Trustees.
Even more shocking is that it appears that a sham “railway” may be able to enjoy this exemption without any determination by the STB. Staff attorneys at the STB advised our Village Attorney Marianne Stecich that NIR’s exemption would automatically become effective in seven days – unless the Village or some other party takes some legal action to revoke the exemption. Thus, although the alleged “railway” must file a notice of exemption with the STB, the exemption could become effective WITHOUT ANY ACTION by the STB.
We strongly request that you write the STB, before August 15, 2005, to oppose NIR’s current application. We also ask that you take prompt action to correct the gross inadequacies in the federal regulation of railways, particularly as it affects preemption of state and local land use and environmental laws. As you can see from the enclosed press clippings, Senators Lautenberg, Corzine, Kennedy, and Kerry, as well as other members of Congress, have registered their strong opposition to this loophole.
If you would like further information, please call me at 914-271-4848.
Thank you very much for your interest in this matter.
Richard F. Herbek
Information Packet on Surface Transportation Board and the “Quasi-Rail” Exemption for Waste Management Firms.
Table of Contents
FAQ on Waste Transfer Stations & Croton-on-Hudson 1
What is a waste transfer station? 1
Where is the site in Croton? 2
What was status of the site in Croton? 2
Why does this matter? 3
Short history of the Issue 3
Who wants to change the STB exemption policy? 5
What are the solid waste industry members saying about this apparent loophole? 6
B. For more on the Surface Transportation Board 6
Surface Transportation Board 6
C. Enclosures from recent press clippings 7
Enclosure 1: Senators Lautenberg and Corzine 7
Enclosure 2: House Members Menendez and Pascrell 8
Enclosure 3: New Jersey Meadowlands Commission 9
Enclosure 4: “Rail waste sites targeted” (Herald News) 10
Enclosure 5: Massachusetts Municipal Association 11
FAQ on Waste Transfer Stations & Croton-on-Hudson
In a nutshell: With the establishment in 1995 of the Surface Transportation Board to consolidate interstate and intrastate rail transport under one federal agency, waste haulers have developed a new tactic in an attempt to free themselves from local regulations. Once a waste transfer site is approved by the STB as part of a railroad, this federal preemption may exempt the site from meeting the state and local environmental review and permitting conditions that have been long established by the EPA and Congress as a local policy domain. The use of this loophole has expanded rapidly in recent years in the Northeast. The early results are chilling.
What is a waste transfer station?
A solid waste transfer station is a location at which solid waste is shifted from one mode of transport to another (truck, rail, barge). Solid waste includes several distinct categories of material including (1) common household garbage (“municipal solid waste”), (2) recyclable goods (such as paper, plastic, glass, metal, etc), (3) construction and demolition debris (“C&D” such as building materials like sheet rock, roofing, lumber, brick that may result from home renovation work), (4) hazardous waste material (“hazmat” such as volatile chemicals or medical waste), and (5) industrial waste which, while environmentally troublesome, does not meet the legal definition of “hazardous waste”. The federal government has long relied on state, county and local laws to regulate the collection, transport, processing and disposal of each category of
waste. Hence, state and local rules for the management of each category of waste are well developed and aimed at protecting the health, safety and welfare of communities that generate, transport and receive waste. The densely populated Northeast corridor has very few open landfills. The waste industry considers the Northeast a highly desirable source of waste to be transported elsewhere for profit. Our region is a huge net exporter of solid waste, largely to landfills in the Midwest where disposal costs are lower and rail connections are good.
Where is the site in Croton?
The solid waste transfer station site in Croton is located at 1A Croton Point Avenue, a landlocked 10-acre parcel between Route 9 and the Metro North Harmon rail yards. Greentree Realty owns the land. The site has been operated for 4 years by a subsidiary of Allied Waste Management, Metro Enviro Transfer LLC. Greentree is the landlord. Allied/Metro Enviro is the tenant. The site has operated under a special permit granted by the Village in 1998 with 42 restrictions that seek to minimize the environmental impact of the waste handling site on local traffic, health, safety and welfare. The Village’s special permit allowed operation for 44 hours per week, limited the tons of material that could be received, required an enclosed operating shed and an engineered tipping floor, and restricted the material to construction and demolition
debris. Due to Allied/Metro Enviro’s willful and repeated violations of the terms of this special permit, the Village is seeking to close the site by terminating the special permit. This dispute has been the source of a 4 yearlong legal battle between the Village and Allied Waste North America, the second largest waste management firm in the US. Thus far, the Village has the upper hand with the highest court in the state upholding our right to terminate a special permit in June 2005 based on the evidence the Village had in hand. But a new owner of the operation at could attempt to change all that within a year.
What was status of the site in Croton?
After gathering a massive amount of evidence about Allied/Metro Enviro’s violations during 2001 and 2002, the Village issued an order to close the waste transfer station in early 2003. The village’s 42 conditions of the special permit were carefully developed based on our local concerns and the protections that the state’s own permit for this operation required. In almost every case, the village’s terms were more stringent than the parallel condition imposed by the state. The operator repeatedly and willfully violated the terms of the special permit. Instead of complying, Allied/Metro Enviro’s chose to sue the Village. For the past two and one half years, Allied/Metro Enviro has tried unsuccessfully to prevent the enforcement of the Village Board resolution from closing its waste transfer station. In June 2005, the highest court in the
state, the Court of Appeals, upheld the Village of Croton-on-Hudson’s right to enforce the terms of a special permit for land use. So the village’s considerable investment of time and legal fees has produced this strengthening of local home rule. In July 2005, Allied/Metro Enviro, together with its landlord, Greentree Realty, filed a new huge suit against the Village seeking $50 million in damages. The Village finds this new suit has numerous fatal legal flaws, but must spend the time and money to defend itself. Of course, the arrival of a new operator who could forego any environmental regulation is deeply disconcerting.
Why does this matter?
Croton may go from living with a waste transfer site that was heavily regulated by state, county and local restriction to one that is virtually unregulated. Because of a loophole in federal law, a railroad may operate a waste transfer site 24 hours a day, 7 days a week, with 400 trucks a day, processing unspecified materials in the open air. Allied does not own a railroad and cannot take advantage of this federal loophole. Allied is in the process of selling the Allied/Metro Enviro operation to a new holding company, Regus Industries LLC, who (1) controls a railroad that already has federal exemption, (New York Cross Harbor Railroad), (2) operates other waste sites in the Northeast, and (3) owns a landfill in Ohio.
In sum, for decades the federal government has deferred to state and local governments in the development of rules and procedures to safeguard the handling of solid waste in our communities. With the consolidation of all rail related matters under the Surface Transportation Board, some waste handlers are seeking sites near rail spurs expressly to gain railroad status and thus be granted exemption from the well developed local environmental protections.
Short history of the Issue
In the Northeast in the past two years, the number of railroad owners who have sought to operate solid waste site under this exemption from state and local environmental conditions has exploded. Recent proposals for such sites include operating 24 hours a day, 7 days a week with circa 400 trucks per day with the huge capability of handling, storing and shipping materials in the open air, including municipal solid waste and hazardous materials. These sites are subject to very limited federal controls.
To put this potentially expansive operation in perspective, the waste transfer operation in Croton was subject to state, county and local conditions that (1) limited operation to 44 hours a week, (2) imposed a strict weekly tonnage ceiling, which had the effect of capping the truck traffic volume, (3) required an enclosed tipping shed, and (4) barred the handling of municipal waste (garbage) or hazardous compounds, among many other provisions designed to mitigate the impact of the operation in the village. In short, the phenomenon is the growth of unintentionally unregulated waste transfer sites.
The waste industry considers the populous Northeast a high cost waste disposal area while being a rich source of waste. It considers the Midwest a low cost waste disposal (landfill) area. The waste industry estimates that the cost of meeting the usual local and state environmental regulations in the Northeast lies between $15 and $20 per ton of waste shipped. (Source: http://www.CDRecycler.com/news/news.asp?ID=2016)
So if a waste management firm could use the STB exemption to operate more cheaply than its competitors, it could either bleed the competition’s customer base dry or charge the same as the competition while raking in the difference as operating profit. Either way, it could gain the ability to buy more sites and expand its empire of unregulated waste sites.
The waste management firms whose sites that have obtained this federal exemption have a very poor record in health and safety so far.
1. The New Jersey Department of Environmental Protection fined the New York Susquehanna & Western Railway $2.5 million for illegally loaded waste from trucks onto rail cars at five sites in Hudson County, New Jersey. (July 27, 2005, Newsday.com)
2. New Jersey fire officials threatened to close a waste transfer station along the railroad in North Bergen, citing safety violations in the storage of an ingredient used in chemical weapons. (July 15, 2005, Herald News, www.NorthJersey.com)
3. The largest New York City site operating under such an exemption has just had its fines paid for by the a new incoming owner, who is also the buyer for the Allied sites in Westchester. (January 5, 2005, New York Regional Railroad, www.nyrr.com)
The paradox: When faced with charges of environmental problems from local authorities, the waste site owner with a 'rail carrier' exemption often asserts that the federal government is sole regulator of its facility under the Surface Transportation Board rules. When states alert federal agencies about environmental problems at such waste sites, it is often unclear which agency would regulate storage of hazardous chemicals or other conditions at railroad transfer stations. In the meantime, state and local municipalities are required to protect public health and the environment. They are the first responders when something goes wrong. If operators go bankrupt or abandon unregulated sites, state and local communities may well be left paying the clean up bill (unless Superfund money is available), without any protective bonds or
approval process over the conditions at the site.
A glimmer of hope: In the past few months, a large group of organizations, officials, local residents, and journalists have begun paying close attention to the impact of those exploiting this unintended loophole in federal law. Members of the Northeast’s Congressional delegations have begun writing key directors in the federal bureaucracy. State agencies have begun demanding reform and accountability from the federal government. All manner of associations and local groups have begun gathering the facts and examining the options to restore reasonable controls to ensure public safety, heath and welfare at waste handling sites. Possible regulatory reforms include bringing a federal agency to an oversight role or granting broader review powers to states for such exemption cases or limiting the scope of the
current federal preemption as is the case in other policy domains.
The US Conference of Mayors (www.usmayors.org/mwma/publicplace/summer05/) has become sufficiently concerned that its environmental affiliate, the Municipal Waste Management Association, held a seminar in Wasthington on the topic. MWMA finds “a growing trend that has started in the Northeast involving the placement of solid waste transfer stations next to railroads in order to minimize the environmental regulations and permitting requirements that are typically associated
with these types of facilities.” Further, MWMA outlined the problem by making the following points regarding abuses at sites in New Jersey:
* In 1995, Congress enacted the Interstate Commerce Commission Termination Act (ICCTA). The Act grants jurisdiction over transportation by rail carriers to the Surface Transportation Board (STB; www.stb.dot.gov/) .
* The STB was given exclusive jurisdiction over railroads and rail transportation inclusive of facilities integral to transportation and the construction, attainment, operation, abandonment, or discontinuance of tracks, or even if the tracks are located, or intended to be located entirely in one state.
* While the ICCTA preempts the New Jersey Department of Environmental Protection's authority to permit a transfer facility owned and operated by a rail carrier and used for transferring shipments of solid waste to or from rail, it does not preempt the role state and local government agencies to play in enforcing federal, state, and local environmental laws.
* Currently, there are projects in development or currently in operation throughout the country where there are solid waste facilities on a side rail that is protected within the umbrella of the STB's exclusive jurisdiction. These facilities are claiming to be exempt from nearly all substantive environmental requirements imposed by state and local government.
* STB does not provide local oversight, which leaves regulatory holes for rail related operations. Most solid waste facilities are subject to significant protective state and local environmental controls. These sites have become subject to very limited federal controls due to the EPA's deference of regulation to the states.
Who wants to change the STB exemption policy?
A partial list of those individuals and organizations alarmed about and seeking change includes:
1. US Senators Jon Corzine, Frank Lautenberg, John Kerry, Edward Kennedy
2. U.S. Representatives Robert Menendez (D-NJ) and Bill Pascrell (D-NJ)
1. The New Jersey Meadowlands Commission
3. The New Jersey Department of Environmental Protection
4. The New Jersey Meadowlands Commission
5. Acting Governor Codey of New Jersey
6. The US Conference of Mayors Municipal Waste Management Association
7. The Massachusetts Department of Environmental Protection
8. The Massachusetts Municipal Association
10. The National Solid Wastes Management Association
11. The Solid Waste Association of North America, Massachusetts Chapter
What are the solid waste industry members saying about this apparent loophole?
These reputable, national solid waste industry associations, CMRA, NSWMA, and SWANA, each joined Massachusetts in opposing the application of New England Transrail for an STB exemption in Wilmington, MA. They viewed the exemption as creating a significant unfair economic advantage for a waste hauler who is granted ‘quasi-railroad’ status. These groups posit that the waste haulers seeking such as exemption are engaged in a “scheme to avoid reasonable state and local laws and regulations and discourage open and fair competition.” These industry groups argued in the case of New England Transrail’s application to the STB,
“If the Board proceeds to apply its exclusive jurisdiction to solid waste management facilities that choose a location near a railroad, this will precipitate a “race to the bottom,” as new bare bones facilities are constructed to manage waste streams at far lower cost than the current environmentally protective facilities that exist. The new solid waste “rail facilities” will be far less costly to develop because they will be exempt from the comprehensive siting and permitting processes in state and local law in Massachusetts, far less costly to construct under state environmental regulations, and far less costly to operate under state and local operating requirements.” (Sources: www.stb.dot.gov under Filings, see footnote 6)
B. For more on the Surface Transportation Board
Surface Transportation Board
The STB’s website contains a great deal of information, e.g. STB’s rules for environmental review: www.stb.dot.gov/
To obtain a copy of the 8/1/2005 filing by Northeast Interchange Railway, LLC at the STB that starts the application to exempt the 10 acre site in Croton from local environmental review, go to www.stb.dot.gov/ and search for “Croton” or “Northeast Interchange.”
C. Enclosures from recent press clippings
Enclosure 1: Senators Lautenberg and Corzine
The following letter dated May 2, 2005, was sent to Roger Nober, chairman of the STB from New Jersey's U.S. Senators, Frank Lautenberg and Jon Corzine.
Dear Chairman Nober,
I write regarding an alarming trend in the environmental regulation of the solid waste management industry that is proceeding with the approval of the Surface Transportation Board (STB). In recent years certain solid waste transfer businesses have capitalized on an apparent loophole in federal law that is allowing them to avoid the state and local environmental permitting and oversight processes for solid waste management facilities.
By hiding behind federal preemption, these businesses locate close to a railroad and seek recognition from the Board. In short, they seek to be recognized under the laws as rail facilities, not solid waste facilities. This results in the abandonment of normal environmental procedures for that industry.
I understand that such a waste management facility was allowed by the STB in North Bergen, N.J., against the recommendation of the state Department of Environmental Protection (NJDEP).
The federal solid waste disposal laws cede federal authority over municipal solid waste to state and local governments, and the State of New Jersey and its communities have strict solid waste laws that protect residents. Those laws play an important role in the siting, construction, and operation of solid waste facilities. Further, they protect the community by appropriate facility siting, safeguarding the environment from irresponsible operation, protecting human health by closely managing wastes, and improving the quality of life for residents who live near solid waste facilities.
Preempting state and local laws for these facilities also creates a competitive disadvantage to the rest of the solid waste industry which must comply with strict state laws and standards. The NJDEP believes that this trend is also contributing to the troubling decline in the State’s recycling rates.
Before any more solid waste facilities can be sited in New Jersey or elsewhere without the environmental oversight of state and local governments, I urge you to carefully scrutinize your policies which allow these facilities to operate outside the protection of state and local laws. I also ask that you evaluate the impact your decisions have on the industry as a whole and the safety and health of those who work in or live near these solid waste transfer facilities. Last, if you can identify a legislative solution that will close this apparent loophole to your satisfaction, please submit it to me.
Thank you for your immediate attention to this matter.
Frank Lautenberg and Jon Corzine
Enclosure 2: House Members Menendez and Pascrell
For Immediate Release
May 26, 2005
Contact: Matthew Miller, 202-226-3210; Desiree Ramos, 201-222-2828 (Menendez)
Ben Rich, 202-225-5751 (Pascrell)
House Members Menendez and Pascrell Urge EPA to Investigate Dangerous Waste Transfer Sites in New Jersey
Washington, DC - Saying that New Jersey families are being put at risk to polluted air and water, U.S. Representatives Robert Menendez (D-NJ) and Bill Pascrell (D-NJ), both members of the House Transportation and Infrastructure Committee, wrote to Stephen L. Johnson, Administrator of the Environmental Protection Agency, today to urge him to investigate waste transfer facilities that are being operated along railroads in the state, often in contravention of state and local environmental laws. Their letter comes on the heels of numerous reports of companies operating or planning to operate private waste transfer sites along rail lines throughout the state.
The text of the letter is below:
The Honorable Stephen L. Johnson
Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave., N.W.
Washington, DC 20460
Dear Administrator Johnson:
We are writing to urge the Environmental Protection Agency to investigate solid waste transfer facilities that are being operated in contravention of State and local environmental law. Due to a loophole in federal law, families in New Jersey are being put needlessly at risk to airborne pollutants and dirty water, and unless action is taken quickly, this problem threatens to spread.
Solid waste facilities are normally required to obtain permits issued by State and local authorities, and comply with all relevant local laws concerning the storage and disposal of solid waste. However, when a company seeks to operate a solid waste transfer facility along a railroad right-of-way, it invokes the Surface Transportation Board's (STB's) "preemption" clause (49 USC 10501(b)) to claim an exemption from those local laws.
As a result, a number of solid waste transfer facilities are being operated by a private entity in North Bergen, New Jersey, without zoning approval and without being covered by the local solid waste management plan. The massive debris piles at these sites are exposed to the elements, where wind blows trash and dirt into the community, and rain carries pollutants into local wetlands. These sites thumb their noses at the stringent solid waste regulations enacted by the State of New Jersey to protect the health and welfare of its citizens.
The State has been taking steps to try and exert some authority over the operation of the sites, but the process is moving slowly, and recent newspaper articles in the Herald News and Atlantic City Press indicate that new sites are being planned for the City of Paterson and Atlantic County. Potential operators of these sites can not be allowed to think they can recklessly damage the environment just because they're located on a rail line.
Although regulating solid waste is a local responsibility, our localities are being blocked by federal law from doing anything about this situation. We believe it is therefore the federal government's responsibility, through EPA, to investigate these sites and makes sure they're being operated in an environmentally responsible manner.
Thank you for your prompt attention to this matter.
Robert Menendez Bill Pascrell, Jr.
Member of Congress Member of Congress
Enclosure 3: New Jersey Meadowlands Commission
FOR IMMEDIATE RELEASE: April 27, 2005
NJMC Targets Federal Solution to Unregulated Waste
Change in Federal Regulations can Stop Unregulated Waste in the Meadowlands
LYNDHURST, N.J. – The Board of the New Jersey Meadowlands Commission took the lead today on advocating a fix in federal legislation to end unregulated waste operations in the Meadowlands. These open trash sites flagrantly threaten the quality of life and health of residents as well as the integrity of the environment.
“This agency will use every regulatory and advocacy tool at its disposal to defend the health and security of our residents from the encroachment of waste operations that do not heed environmental and security safeguards,” said NJMC Chair and New Jersey Department of Community Affairs Commissioner Susan Bass Levin. “These garbage pits hide behind federal regulations that they claim make them untouchable. Today we are asserting that there can be no confusion about the laws of our land that can afford these waste heaps cover.”
The NJMC will work with New Jersey’s federal delegation to clarify language in the Interstate Commerce Commission Termination Act to ensure that rail solid waste transfer stations are not unintentionally placed out of reach of state protections for residents.
Solid waste has accumulated at four sites along rail lines owned by New York Susquehanna and Western Railway for more than a year. These operations move waste from trucks to open rail cars for transport elsewhere with virtually no inspections by operators or controls over the incoming trash.
Without the inspection and documentation of loads, hazardous or toxic materials can be brought in and stored in the open-air trash piles. As a result, contaminated stormwater, dust and fumes can exist within a short distance of residential areas and local wetlands. One site is located next to a plot slated for a North Bergen high school.
It has been noted that workers’ protections appear to be neglected at these sites resulting in unsafe working conditions including the dangerous use of equipment, exposure to potentially hazardous solid waste, and the piling of refuse and use of equipment in close proximity of high voltage power lines.
In addition, many operators of these sites are unknown, meaning there is no guarantee of waste removal if the sites go bankrupt or the operators walk away. There is also no state check to ensure a site is not connected to organized crime.
Enclosure 4: “Rail waste sites targeted” (Herald News)
Tuesday, July 26, 2005
By HEATHER KAYS
Acting Gov. Richard J. Codey and Sen. Jon Corzine announced a two-track campaign to deal with unregulated railway waste transfer sites Monday.
Codey launched Operation Safety Net - a multiagency state level enforcement effort designed to crack down on sites like the one in the North Bergen Meadowlands, where a potentially deadly chemical was discovered earlier this month.
"We're going to harass the hell out of them," Codey said during the afternoon press conference at the Meadowlands Environment Center in Lyndhurst.
Codey said the state Department of Environmental Protection, Department of Community Affairs Division of Fire Safety, New Jersey State Police, and the Port Authority Police Department will be involved in inspecting and enforcing safety standards at the sites.
Operators of the unregulated waste sites, located along rail lines, have been using federal charters exempting railroads to evade state and local regulations. There are five such sites located within two miles of each other in North Bergen - all owned by New York, Susquehanna and Western Railway. There are several other solid waste transfer sites under construction or operation by several railroads in North Jersey, including one in Paterson and one in Passaic.
The sites, some of which are close to homes, have raised health, environmental and safety concerns. Thousands of pounds of phosphorus pentasulfide, a flammable chemical used in the production of lubricants and insecticides, were found at the NYS&W's North Bergen site. Though the chemical has since been removed, officials were concerned because the chemical can become explosive and produce poisonous gases when it's exposed to water.
The railway company maintains that state regulations do not apply because they are involved in interstate commerce under federal jurisdiction.
Codey acknowledged that state enforcement is not enough.
"We will do as much as the law allows us to protect New Jersey," he said. "But the state cannot close this federal loophole. This is not a problem New Jersey can solve by itself."
U.S. Sen. Jon Corzine, D-Hoboken, pledged that he and Sen. Frank R. Lautenberg would draft legislation closing the loophole under which railroads deny state and local oversight.
"This just has to stop," Corzine said to the room full of reporters and environmentalists. "This was never the intent of those who wrote the law."
Corzine said the proposed legislation would allow state and local government jurisdiction over solid waste transfer, giving them the power to regulate existing sites and stop new ones from popping up.
Alan C. Marcus, a spokesman for NYS&W Railway, called the Codey-Corzine efforts "nothing really all that new," since the railroad is already being harassed by the state, he said.
"The reason for the federal pre-emption is to ensure that local officials cannot interfere with our national railroad system," Marcus said. "Without a functioning rail system, all cargo will be shifted to trucks."
Marcus said the railroad would oppose the proposed legislation but continue to abide by federal regulations.
Codey, Corzine and half a dozen other state enforcement officials at the press conference promised to be tenacious in their fight against the unregulated sites.
"I don't care what federal loopholes are being exploited," Codey said. "I am not going to stand by and do nothing while these trash heaps take over our state."
Enclosure 5: Massachusetts Municipal Association
Economic and Community Development News
“Federal board deals blow to company’s effort to bypass local rules”
By MMA Federal Policy Coordinator Marc Hymovitzv
June 6, 2005
In a major victory for local control, the federal Surface Transportation Board last month dealt a blow to New England Transrail’s bid to bypass local rules.
New England Transrail was seeking recognition as a railroad, which would have exempted the company from many state and local regulations. But the STB last month terminated the company’s proceeding.
Congress created the STB in 1995, giving it jurisdiction over railroad rate and service issues as well as rail restructuring transactions. In an effort to ensure the ease of passage from community to community and state to state, the STB was given the authority to grant railroad companies exemptions from most state and local regulations, including zoning and environmental controls.
New England Transrail, in its attempt to open a solid waste transfer facility at a former chemical site in Wilmington, petitioned the STB to be recognized as a railroad, claiming that the company would be offloading trash-filled containers from trucks and loading them directly on to rail cars. The company argued that no trash would leave the containers in the transfer process.
The company’s application stated that as many as 400 trucks per day would deliver materials and waste to 25 rail cars, which would leave each morning between 1 a.m. and 5 a.m.
The railroad designation would have exempted this activity from oversight by the Department of Environmental Protection and local officials. The company would have been able to avoid compliance with the Massachusetts Environmental Policy Act, the state’s ban on certain waste materials, and state wetlands laws.
The Surface Transportation Board granted conditional approval of Transrail’s original application, but after conducting environmental assessments and receiving public input, the board found that the company’s intentions were “materially different” from what it had initially outlined.
The Transportation Board received significant public input from, among others, the MMA, the DEP, the attorney general’s office, and members of the state’s Congressional delegation, all opposing Transrail’s attempt to bypass state and local rules.
It appears that Transrail’s proposal evolved to become a simple transfer station, with the trash being removed by rail.
The STB cited “significant concern” about conflicting information that would not allow the board to make a decision. The board voted to require Transrail to file a new petition if the company wished to have the project reconsidered. This would require the company to start the process from the beginning, including the expense of initial filing fees.
The STB made it clear, however, that its decision was based on procedure and not the merits of the case. With several communities and states across the nation facing similar issues, this issue is not expected to disappear anytime soon.