By Aaron E.P. Wiley, USCM Intern
April 25, 2005

The United States Conference of Mayors environmental affiliate, The Municipal Management Association, and the Washington (DC) Department of Solid Waste Management met April 14 to discuss the legislative and regulatory priorities including Unregulated Solid Waste Rail Transfer Stations. During the meeting, attendees were briefed by Susan King, Director of Governmental Affairs of American Ref-Fuel Corporation.

King discussed 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. King outlined the problem by making the following points:

• 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).
• 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 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.

King explained that state and local municipalities are required to protect public health and the environment. They are the first responders when something goes wrong. States want land use and planning oversight where solid waste facilities would not be exempt from abiding by state regulations. These facilities exist in New York and New Jersey and are pending in Rhode Island and Massachusetts, where waste haulers are applying to railroads in highly regulated areas.

Currently, there are four illegal waste transfer stations with two more stations being formed. The facilities have arrived without a permit or zoning approvals and are moving solid waste with little to no oversight. In addition, New England Transrail, LLC in Wilmington (MA) has been seeking to restore it tracks, build transfer stations with the potential of receiving up to 400 trucks a day and operate twenty-four hours a day.

King stated that there is a fear among local officials that more of these stations might occur, which could result in a threat to public health. She said that state, county and local officials have promised to coordinate their efforts to cease the proliferation of unregulated solid waste transfer stations along the railroad. Officials are working to move on several fronts in a coordinated, multi-agency approach. Groups have been reaching out to state and federal lawmakers to change the rules associated with this problem.