And some of you here on NErailfan thought I wouldn't come back to the site again after my posting re: comments to the STB on the NET project. Guess you were wrong. Here I am again!
http://www.railroad.net/forums/
WinkGuess you were wrong about a lot of things huh? You, as has NET and their high priced propaganda slinging lawyers from Baker Botts, (propaganda which some of you actually believed) tried to make this a NIMBY issue. Is Massachusetts AG Martha Coakley a NIMBY also?. The STB ruled the Olin site was "safe" through their so called independent Environmental Analysis (
http://www.epa.gov/fedrgstr/EPA-IMPACT/ ... i17641.htm). Guess they were wrong. Now Olin is a superfund site still under investigation. Reminder: a site responsible for contaminating a water supply. Yes this site is in the recharge area of a public water supply. Makes sense to have a facility that meets no local or state control on top of a water supply huh? Wrong again. It make no sense and leaves many communities across the nation at risk, not just in Massachusetts. Mass AG Coakley realizes this also. In her appeal she states “Congress has recognized that states have primary responsibility for regulating processing and disposal of solid waste such as garbage, construction and demolition debris. The Commonwealth has extensive state regulations governing where solid waste facilities can be located and how they can be constructed and operated. The Attorney General has appealed the STB decision because federal preemption would prevent the Commonwealth from enforcing these regulations at the NET site.”
These type of facilities, regulated or not, should not be sited in recharge areas to water supplies. If wanting to protect your water supply make you a NIMBY I gladly wear that badge. Here in Wilmington we want our water supply cleaned up, not just the Olin site. The plume of contaminants that emanate from the site travels 1/4 of a mile or so to our supply. If any of you can not understand that than this is obviously way over your " I love railroads and only railroads at all costs" head.
Same issues in NJ! This a paste from Congressman Pallone’s letter to Chairwoman Corrine Brown of the House Subcommittee on Railroads, Pipelines and Hazardous Materials:
“In New Jersey, some waste handlers and railroad companies are exploiting a so-called loophole in federal law to set up unregulated waste transfer facilities. Under the Interstate Commerce Commission Termination Act of 1995, the STB has exclusive jurisdiction over "transportation by rail carriers" and the ability to grant federal preemption over other laws at any level -- local, state, or federal -- that might impede such transportation. Pallone said Congress intended such authority to extend only to transportation by rail, not to the operation of facilities that are merely sited next to rail operations.
Currently, more than a dozen railroad transfer facilities have been proposed or are now in operation in New Jersey, one of which handles hazardous waste. The state has tried repeatedly to impose regulations on the trash piles in an effort to protect those New Jerseyans who live and work near them.
Last February, Pallone introduced H.R. 1248, The Clean Railroads Act of 2007, in the U.S. House of Representatives that will ensure solid waste facilities next to rail lines fall under the same regulations as every other waste facility, which would allow New Jersey to regulate these facilities.”
Check out Commissioner Mulvery’s (STB) dissenting vote. He is absolutely right and obviously many support his vote and interpretations of the purposes of exemptions.
COMMISSIONER MULVEY, dissenting:
I strongly dissent from the Board’s decision in this case. While it appears that, under 49 U.S.C. 10901 and existing precedent, NET would become a rail carrier if authorized by the Board for its proposed construction and operation of rail lines, I vehemently disagree that its proposed activities with respect to MSW qualify for preemption under 49 U.S.C. 10501(b). Under my reading of the Interstate Commerce Act (the Act) and as a policy matter, I believe that the handling of MSW should be subject to reasonable, non-discriminatory state regulation.
I simply cannot agree with the majority that the unloading of bulk MSW onto the recessed concrete floor of NET’s proposed facility, temporarily storing the material, then baling or loading it into containers or railcars (Decision at 13-14) should be accorded preemption, based on the inherent qualities of MSW.[74] What this case comes down to is distinguishing between rail transportation and other activities that would occur even absent rail transportation. NET’s proposed activities involving MSW would occur regardless of rail transportation. While these activities might facilitate transportation, they are not integrally related to transportation. Extending preemption to shield these handling activities is overreaching and reflects too broad an interpretation of the scope of preemption with regard to MSW.
I have always been — and I remain — a strong supporter of preemption. Congress and the courts have long recognized the need to regulate railroad operations at the federal level to avoid a patchwork quilt of state and local regulations that could impede the efficient flow of commerce. The Act, especially as amended by ICCTA, is one of the “most pervasive and comprehensive of federal regulatory schemes.”[75] The ability to preempt local laws is one of the prized benefits of receiving Board authority to build and run a railroad. In the rail transportation arena, the purpose of federal preemption is to protect the flow of interstate commerce. In this case, were the Board to authorize NET to operate, I would favor the application of federal preemption to the movement of NET trains to landfills or other waste handling destinations once MSW was loaded onto trains.
The majority states that our statute requires the Board to include handling and storage activities as part of the term “transportation,” and that our statute does not allow us to use different legal standards for different commodities. (Decision at 2) But this ignores the fact that MSW is an atypical commodity. A comprehensive scheme of state and local law exists to protect the environment and the health and safety of local populations in the vicinity of MSW’s handling and disposal. There may be entities that receive, store and reload commodities such as lumber, cement, brick, stone, automobiles and even coal, but I am not aware that these entities operate under state and local regulation because of the inherent nature of those commodities.
There is a critical reason that the power to regulate the handling of MSW has been delegated to the states — and that is because states and localities are in the best position to protect the health and safety of their citizens and to understand the impacts of handling MSW. While the Board typically harmonizes its interpretation and implementation of the Act with other federal laws,[76] there is no federal law to be harmonized here precisely because states have the authority and responsibility to regulate in the area of MSW handling.
I am troubled by the recent up-tick in assertions by new entrants into the MSW industry that they are rail carriers subject to the Board’s jurisdiction. What concerns me is these firms’ attempts to blend the nature of their operations to offer both rail carrier service as well as waste processing, and to use their putative status as rail carriers to shield their waste processing operations from the reach of state and local environmental laws. This tactic is manipulative and abusive of the Board’s jurisdiction and powers, and it highlights a method of evading the law that I cannot support.[77] If the Board’s existing interpretation of the Act cannot stop this practice, then it is time for Congress to do so.
I recognize that there may be several subsequent stages to this particular case, and I intend to participate fully in those and to scrutinize the record as thoroughly in the future as I have on the questions presently before us. I foresee potential issues about the bona fides of NET and the Board’s ability to adequately condition a grant of operating authority to NET under 49 U.S.C. 10901.
This case is pivotal to the future of the Board’s jurisdiction and power to preempt rail transportation activities. I believe the majority has seriously erred in extending the reach of preemption to NET’s proposed MSW activities, to the detriment of the Board and communities across the nation. And, we have taken far too long to reach this wrong result. I dissent.
Websites to check out.
1.
http://www.house.gov/list/press/nj06_pa ... 71107.html
2.
http://www.cdrecycler.com/news/news.asp?ID=2016
http://www.stb.dot.gov/decisions/readin ... enDocument
