The Federal Surface Transportation Board (STB) has voted unanimously to deny New England Transrail’s application to place a rail haul operation for construction and demolition debris in Wilmington, Mass. The site would have been exempt from most state and local laws. New England Transrail will be allowed to re-file its application for such an exemption, and has indicated that it will.
The operation has been designed to ship material by rail to a shuttered Olin Corp. plant, engage in what critics contend is very limited recycling, and then ship most of the material off the site via truck to landfills or other destinations. Critics also contend the operation has chosen a rail site in order to qualify as a rail operation and exist under the jurisdiction of the STB, and thus be exempt from virtually all state and local environmental laws and permits.
Many recycling and waste industry participants, as well as many Massachusetts politicians, the Massachusetts Department of Environmental Protection, and the residents of the town of Wilmington, opposed the operation, saying it was not really a rail operation but a waste transfer station trying to avoid the costly permitting process every other waste facility must go through.
A coalition of waste and recycling industry associations and companies has banded together to fight the company’s efforts to receive an STB exemption. They claim it would give New England Transrail an unfair economic advantage of about $15 to $20 per ton because it would not have to follow the same rules as other waste hauling companies.
The Construction Materials Recycling Association (CMRA) has contributed to and is part of the coalition that petitioned the STB against New England Transrail, and executive director William Turley says recyclers should be glad the STB denied the exemption for several reasons. “First, it would have siphoned off materials from legitimate C&D recycling operations trying to play by the rules. Second, it was obvious this was a sham railroad operation, just one company’s attempts to gain an economic advantage by taking advantage of a loophole in the federal railroad laws,” says Turley, who is also associate publisher of Construction & Demolition Recycling.
That loophole has now come to the attention of some U.S. senators. Both Massachusetts senators, Edward Kennedy and John Kerry, have written three letters to STB about the Wilmington matter, and are said to be considering ways to amend the loophole. From New Jersey, where these quasi-rail operations first started and opposition to them has grown, U.S. Senators Frank Lautenberg and Jon Corzine have written several letters to the STB about the loophole and have asked the STB to provide them with the “legislative solution” to close the loophole (see sidebar for complete text of their letter).
| The following letter dated May 2, 2005, was sent to Roger Nober, chairman of the STB from New Jersey's U.S. Senators, Frank Lautenber 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. |
What seemed to motivate the STB to deny the exemption for now, according to those who attended the vote in Washington, was that New England Transrail (NET) was continually evolving the nature of the project, even after STB’s environmental assessment was complete. The STB staff said that the company’s proposal was “materially different” than the one for which it had originally received conditional approval, and that it was difficult to make a decision based on conflicting information.
Staff recommended the application be denied, and “In the event of a new filing, NET must describe in detail the proposed grinding, baling, and other processes to which construction waste and solid waste could be subjected to at the Olin site, as well as NET’s basis for asserting that those activities should be considered part of rail transportation. Such information will enable the Board to conduct its [environmental] analysis and to address the questions that have been raised about the scope of the Board’s jurisdiction, if any, over those activities.”
New England Transrail will have to pay a new set of filing fees if it does re-file. According to a report in the Boston Globe, Rob Jones, and managing principal for the company, says it will.
“Obviously we are very disappointed with today’s ruling,” Jones told the Globe shortly after the vote. “But the STB gave us several things that they would like to receive clarification on, and we intend to provide them with that clarification.”
Members of the coalition against the New England Transrail project include, besides the CMRA, the National Solid Waste Management Association and the Solid Waste Association of North America, as well as several member companies The coalition also vowed to continue its fight against the New England Transrail’s petition for exemption.
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