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38–517 PDF 2007

RAILROAD-OWNED SOLID WASTE

TRANSLOAD FACILITIES

(110–77)

HEARING

BEFORE THE

SUBCOMMITTEE ON

RAILROADS, PIPELINES, AND HAZARDOUS 

MATERIALS 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

OCTOBER 16, 2007

Printed for the use of the 

Committee on Transportation and Infrastructure

(

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

NICK J. RAHALL, II, West Virginia, Vice 

Chair 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

GENE TAYLOR, Mississippi 

ELIJAH E. CUMMINGS, Maryland 

ELLEN O. TAUSCHER, California 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

JULIA CARSON, Indiana 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

DORIS O. MATSUI, California 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio 

MAZIE K. HIRONO, Hawaii 

BRUCE L. BRALEY, Iowa 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ACURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

JERRY MCNERNEY, California 

LAURA A. RICHARDSON, California 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

STEVEN C. LATOURETTE, Ohio 

RICHARD H. BAKER, Louisiana 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

TED POE, Texas 

DAVID G. REICHERT, Washington 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

LYNN A WESTMORELAND, Georgia 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

(II)

SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS 

MATERIALS 

CORRINE BROWN, Florida Chairwoman 

JERROLD NADLER, New York 

LEONARD L. BOSWELL, Iowa 

JULIA CARSON, Indiana 

GRACE F. NAPOLITANO, California 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio, Vice Chair 

BRUCE L. BRALEY, Iowa 

TIMOTHY J. WALZ, Minnesota 

NICK J. RAHALL II, West Virginia 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

MICHAEL H. MICHAUD, Maine 

DANIEL LIPINSKI, Illinois 

JAMES L. OBERSTAR, Minnesota 

(ex officio) 

BILL SHUSTER, Pennylvania 

THOMAS E. PETRI, Wisconsin 

WAYNE T. GILCHREST, Maryland 

STEVEN C. LATOURETTE, Ohio 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

LYNN A. WESTMORELND, Georgia 

JOHN L. MICA, Florida 

(ex officio) 

(III)

(V)

CONTENTS Page

Summary of Subject Matter .................................................................................... vii

TESTIMONY 

Buttrey, Hon W. Douglas, Vice Chairman, Surface Transportation Board ........ 11

Chasey, Hon. Kathy, Mayor, Mullica Township, New Jersey .............................. 37

Foley, Hon. Brian X., Town Supervisor, Brookhaven, New York ........................ 37

Jones, III, Robert, Managing Principal, New England Transrail, LLC .............. 55

Lautenberg, Hon. Frank, a United States Senator from the State of New 

Jersey .................................................................................................................... 3

Marturano, Thomas, Director of Natural Resources and Solid Waste, New 

Jersey Meadowlands Commission ...................................................................... 55

McMorrow, Hon. Barbara, Freeholder, Freehold, New Jersey ............................ 37

Mulvey, Hon. Francis P., Commissioner, Surface Transportation Board ........... 11

Murphy, Hon. Patrick, a Representative in Congress from the State of Pennsylvania ................................................................................................................. 3

Nottingham, Hon. Charles D. ‘‘Chip,’’ Chairman, Surface Transportation 

Board ..................................................................................................................... 11

Pallone, Jr., Hon. Frank, a Representative in Congress from the State of 

New Jersey ........................................................................................................... 3

Pizzo, Hon. Joseph W., City Solicitor, Township of Bensalem, Pennsylvania .... 37

Schmidt, Hon. Gregory, Mayor, Village of Croton-On-Hudson, New York ......... 37

Skacel, Wolfgang, Assistant Commissioner, New Jersey Department of Environmental Protection ........................................................................................... 55

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Bishop, Hon. Timothy H., of New York ................................................................. 68

Costello, Hon. Jerry F., of Illinois .......................................................................... 69

Hinchey, Hon. Maurice D., of New York ............................................................... 71

Oberstar, Hon. James L., of Minnesota ................................................................. 75

Pallone, Jr., Hon. Frank, of New Jersey ................................................................ 77

Rahall, II, Hon. Nick J., of West Virginia ............................................................. 79

Smith, Hon. Christopher H., of New Jersey .......................................................... 110

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Buttrey, Hon. W. Douglas ....................................................................................... 124

Chasey, Hon. Kathy ................................................................................................. 125

Foley, Hon. Brian X. ................................................................................................ 129

Jones, III, Robert W. ............................................................................................... 132

Marturano, Thomas ................................................................................................. 141

McMorrow, Hon. Barbara ....................................................................................... 176

Mulvey, Hon. Francis P. .......................................................................................... 179

Nottingham, Hon. Charles D. ................................................................................. 197

Schmidt, Hon. Gregory J. ........................................................................................ 214

Skacel, Wolfgang ...................................................................................................... 220

SUBMISSIONS FOR THE RECORD 

Rahall, II, Hon. Nick J., a Representative in Congress from the State of 

West Virginia:

Eric Hsu, ‘‘3 Railroad Dump Stations Closed,’’ The Record, April 28, 2007 ... 81

New York Susquehanna and Western Railway Corporation v. Jackson, 500 

F.3d 238 (3rd Cir. 2007). .................................................................................. 82

Jones, III, Robert, Managing Principal, New England Transrail, LLC, additional statement ................................................................................................... 138

Page

VI

Marturano, Thomas, Director of Natural Resources and Solid Waste, New 

Jersey Meadowlands Commission; Skacel, Wolfgang, Assistant Commissioner, New Jersey Department of Environmental Protection, response to 

question from Rep. Rahall ................................................................................... 171

Marturano, Thomas, Director of Natural Resources and Solid Waste, New 

Jersey Meadowlands Commission, additional statement ................................. 174

Nottingham, Hon. Charles D. ‘‘Chip,’’ Chairman, Surface Transportation 

Board, response to question from Rep. Hall ...................................................... 33

Nottingham, Hon. Charles D. ‘‘Chip,’’ Chairman, Surface Transportation 

Board; Buttrey, Hon W. Douglas, Vice Chairman, Surface Transportation 

Board, responses to questions from the Subcommittee .................................... 211

ADDITIONS TO THE RECORD 

Joseph DiGirolamo, Mayor, Township of Bensalem, Pennsylvania, written 

statement .............................................................................................................. 252

vii


38517.001
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38517.002
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38517.003
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38517.004
xi


38517.005
xii


38517.006
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38517.007
(1)

RAILROAD-OWNED SOLID WASTE TRANSLOAD 

FACILITIES 

Tuesday, October 16, 2007

HOUSE OF REPRESENTATIVES, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS

MATERIALS, Washington, DC. 

The Subcommittee met, pursuant to call, at 10:03 a.m., in Room 

2167, Rayburn House Office Building, Hon. Corrine Brown [Chairwoman of the Subcommittee] Presiding. 

Ms. BROWN. Will the Subcommittee on Railroads, Pipelines and 

Hazardous Materials come to order? 

The Subcommittee is meeting today to hear testimony on railroads, on solid-waste transload facilities. I want to thank Mr. Murphy, who is here, and others—Mr. Frank Pallone, who, I am sure, 

is on his way—and many of the Northeastern Members have been 

closely monitoring this issue and requested today’s hearing. 

Americans are producing more waste than ever. In 1960, the 

United States generated 88 million tons of municipal solid waste. 

In 2005, the amount has grown to nearly 246 million tons, or 4.5 

pounds per person per day. 

As a result, it is harder than ever to get rid of our trash. There 

are many reasons for this. The consolidation of the waste-management industry, the challenge of constructing new landfills and the 

closing of older landfills are making it harder for States and municipalities to deal with the growing problem. 

Rail is an important transportation mode for the solid-waste industry. Its importance is increasing as the distance to landfills 

from our cities and communities grows longer and fuel costs continue to rise. 

However, there is a growing concern in the Northeast that some 

railroads are using Federal preemption standards to shield themselves from important State and local environmental laws and still 

are merely transloading waste by taking it from trucks and placing 

it on railcars. Some railroads in the Northeast are operating like 

transfer stations—putting waste on the ground, sorting it, bailing 

it and processing it before it goes to the rail sites. 

Solid-waste companies that do this work are required to comply 

with State and local environmental laws, while the railroads, which 

are doing the same work, claim that they are not subject to these 

laws because of Federal preemption standards. 

I believe that we should not interfere with interstate commerce, 

because we do not want a patchwork of State and local regulations. 

2

But it is clear that someone needs to authorize the manpower to 

ensure that railroads operating waste-transfer stations are not posing a health or an environmental risk to the communities where 

they are operating. 

I am looking forward to today’s hearing and to the witnesses in 

learning how we can protect communities from harm without creating further problems in the disposing of municipal solid waste. 

Before I yield to Mr. Shuster, I ask that the Members be given 

14 days to revise and to extend their remarks and to permit the 

submission of additional statements and material by Members and 

witnesses. 

Without objection, so ordered. 

I ask unanimous consent that Mr. Rahall be allowed to participate in today’s hearing and to sit and ask questions of the witnesses. 

Without objection, so ordered. 

With that, I will now yield to Mr. Shuster for his opening statement. 

Mr. SHUSTER. Madam Chair, I would like to ask unanimous consent that Mr. LoBiondo, a Member of the Full Committee, be allowed to sit on the Subcommittee today and to ask questions and 

to give his opening statement. 

Ms. BROWN. Without objection. 

Mr. SHUSTER. Okay. Thank you. 

Well, good morning. I would like to welcome you all to this Railroad Subcommittee hearing on railroad waste facilities. 

This is the second hearing we have held on the subject since 

2006, and there still seems to be a misunderstanding concerning 

the ICC Termination Act. That law gives the Surface Transportation Board exclusive jurisdiction over railroad facilities such as 

freight yards, side tracks and waste-transload facilities, but despite 

what some people say, the ICC Termination Act does not preempt 

all States and local laws. 

First of all, the ICC Termination Act only applies to legitimate 

railroads and to legitimate rail carriers. If a company is not a legitimate railroad, case closed; there is no preemption. State and 

local laws still apply. Even if the operator is a legitimate railroad, 

most State and local laws still apply. 

If you look at the case law, Federal preemption for railroad waste 

facilities is actually fairly limited. While communities are not allowed to have upfront permitting requirements, they can still enforce their local codes. Local codes for electrical, building, fire, 

plumbing, sanitation and rodent control still apply even if the site 

is run by a railroad. The only limitation is that local codes cannot 

discriminate against railroads or burden interstate commerce. 

Unfortunately, some people have used phony preemption claims 

to evade legitimate local regulations. People have claimed to be 

railroads even when they do not own a single train. People have 

claimed to be exempt from local health and safety regulations, 

when that was never the intent of the Federal law. These people 

hire sharp lawyers, file endless legal proceedings, and make money 

every day until the courts finally shut them down. 

When local communities are forced to spend millions litigating 

against shady companies running waste sites, something is wrong 

3

with the system. I am interested to hear today what the STB has 

done to prevent such abuses from occurring and whether enough 

has been done to do that. 

Thank you, Madam Chairman, for holding this hearing, and I 

yield back. 

Ms. BROWN. Thank you. 

I am pleased to welcome today Mr. Patrick Murphy from Philadelphia. 

You have the floor, sir. 

TESTIMONY OF HON. PATRICK MURPHY, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF PENNSYLVANIA; HON. 

FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS 

FROM THE STATE OF NEW JERSEY; HON. FRANK LAUTENBERG, A UNITED STATES SENATOR FROM THE STATE OF 

NEW JERSEY 

Mr. MURPHY. Madam Chairwoman and Ranking Member Shuster, thank you very much for the opportunity to speak to you 

today. 

I also would like to thank the rest of the Subcommittee for giving 

me the opportunity to speak on an issue of great importance, not 

just to my district but to districts all over our country. 

It is my privilege to introduce to you Bensalem Township’s solicitor, Joe Pizzo. 

Joe, if you could stand up. 

We originally planned on having Mayor Joe DiGirolamo, the 

mayor of Bensalem in Bucks County, Pennsylvania, from my district, to testify today, but unfortunately, the mayor could not make 

the rescheduled hearing. We are disappointed that the mayor could 

not make it, but I am pleased that Mr. Pizzo is here to represent 

Mayor DiGirolamo and Bensalem Township. 

Joe Pizzo is Bensalem’s solicitor. No one knows the details of 

Bensalem’s fight against the proposed waste-transfer station better 

than Joe. He has been a consistent and forceful advocate for the 

citizens of Bensalem. I want to take this opportunity to thank him 

for his efforts and to thank him for agreeing to come before this 

Committee on such short notice. He knows our community. He will 

give a critical local perspective on just how damaging these facilities can be. Joe will give the details of Bensalem’s fight against a 

rail company that is attempting to build a trash facility in the 

township. 

So I want to take this time to urge the passage of Congressman 

Frank Pallone’s Clean Railroad Act. I am a cosponsor of his bill, 

which would exclude solid-waste disposal from the jurisdiction of 

the Surface Transportation Board. We are pushing for this so that 

State and local governments can protect their citizens and regulate 

solid-waste transfer stations built next to interstate freight rail 

lines. 

This legislation is urgently needed for many reasons. I think that 

it is wrong that this legal loophole is allowing rail companies to 

run roughshod over State and local laws and the will of a community. These laws are there for a reason, and in Bensalem’s case, the 

construction of this trash facility would destroy a year-long revitalization process for an economically depressed area. 

4

Secondly, this is simply an issue of fairness. By refusing to close 

this loophole, we are putting waste-management companies that 

play by the rules at a severe disadvantage to a select few rail companies that do not care about the risks posed to local citizens by 

these facilities. 

Lastly, Congress has a responsibility to stand up to the executive 

branch on this issue. When Congress created the Surface Transportation Board, it was never intended to allow decisions by the STB 

to be used to override the wishes of cities and towns across our 

country. Certainly, the STB was not to be used as a means of suppressing the health and the environmental regulations of State and 

local governments. Yet, this is exactly what is happening. 

This is not a partisan issue. Mayor DiGirolamo is a Republican, 

and, as you know, I am a Democrat, but we are working together 

on this issue because it is what is right for our community. 

With that, I would like to thank again the Chairwoman and the 

Ranking Member for giving me the opportunity to testify today. 

And I would be happy to answer any questions that you may have. 

Ms. BROWN. Thank you. 

Now, Representative Pallone from New Jersey is the person who 

has requested this hearing and who has been very persistent about 

making sure that we have this hearing today, so I will turn it over 

to Mr. Pallone. 

Mr. PALLONE. Thank you. 

First of all, I want to thank you, Chairwoman Brown and also 

Ranking Member Shuster, for having this hearing today. And I 

know that I did ask many times for the Chairwoman to conduct a 

hearing, and I appreciate the fact that we are having it. It is really 

an important issue for not only New Jersey and Pennsylvania but, 

I believe, throughout the country as the problem gets worse, which 

I think it, in fact, will. 

As you know, Senator Lautenberg has introduced this bill in the 

Senate. I do believe that he will probably be here a little later to 

testify. But what we are seeing is that the problem that started in 

a few States now is just getting worse around the country. 

The problem is that you have, not all, but some waste handlers 

and railroad companies that are trying to exploit this loophole in 

the Federal law in order to set up unregulated waste-transfer facilities. Imagine if you have, you know, a pile of this garbage that 

has absolutely no State regulation. I mean, that is basically what 

we are seeing. 

Under the Interstate Commerce Commission Termination Act, 

the Surface Transportation Board, as you know, has exclusive jurisdiction over, ′′transportation by rail carriers and the ability to 

grant Federal preemption over other laws at any level, whether it 

be local, State or Federal, that might impede such transportation.′′

But I do not believe that it was the intention of Congress that such 

authority extend to these kinds of facilities. It was only for transportation by rail, not to the operation of facilities that are just sited 

next to rail operations or that have a business connection to a rail 

company. And I think that is the key. This was not the intention 

of Congress, but they have been exploiting it. They have been using 

this loophole to build or plan waste-transfer stations next to rail 

lines and to avoid any regulation. 

5

In New Jersey, we have about 15 railroad waste-transfer facilities that have been proposed or that are now operating in the 

State, one of which handles hazardous waste. Now, some of these 

companies have gone before the STB to seek the Federal preemption of a host of environmental and public-health laws that apply 

to every other waste-transfer facility. So what you have is the ones 

that are next to the rail line being exempt from all of the State 

laws. The others that are competing with them, that are not there, 

are having to fulfill all of their obligations. So it is a total inequity, 

if you will. 

Now, even without applying for specific exemptions from the 

STB, companies have held up the threat of Federal preemption as 

a way of getting local and State governments to back down on proposed regulations. And as I said, the word is spreading. These 

waste-transfer stations have sprung up or are being proposed, not 

only New Jersey, Massachusetts, Pennsylvania, and in New York. 

And in all of these instances, certain waste haulers are trying hard 

to avoid environmental regulations. 

There is no other way to change this, as far as I know, other 

than for Congress to take action and to pass this bill. There is no 

indication that the STB, you know, through their own regulation, 

is going to change the situation. We do have to act. 

I mentioned that Senator Lautenberg has the companion bill in 

the Senate. The bill simply amends the act to say that solid-waste 

management and processing are excluded from the jurisdiction of 

the STB, and then, of course, States would have the authority to 

regulate these waste-transfer stations just as they do any other in 

their State. 

I am just summarizing, Madam Chairwoman. You have my full 

statement for the record, but I just wanted to sort of visualize—

I wish I did have a visual here—visualize six stories of waste sitting next to a rail line in your own community, with no oversight 

from the State or local authorities. That is what we are facing right 

now if we do not pass this bill. 

If I could, I want to mention that you have four witnesses today 

from New Jersey who are friends of mine. One is the freeholder in 

Monmouth County, Barbara McMorrow, who is from my own county. Another is the Mullica Township mayor, Kathy Chasey, who is 

also here. We have representatives from our State Department of 

Environmental Protection and from the New Jersey Meadowlands 

Commission. So I also appreciate not only bringing up the bill 

today but in letting these New Jersey witnesses testify. 

Thank you. 

Ms. BROWN. Thank you very much. 

The Senator has just arrived, and I want to welcome Senator 

Frank Lautenberg from New Jersey. 

Senator Lautenberg, thank you very much for traveling all the 

way from the other side of the chamber to be with us today. We 

are honored. And I will turn the statements over to you. The floor 

is yours, sir. 

Senator LAUTENBERG. Thank you very much, Madam Chairman. 

It is nice to see you in that position. 

I think it is fair to say that we are all concerned with this subject. Even though every State is not affected by it presently, there 

6

is real interest in continuing this process in States that have not 

yet experienced it. 

Now, I serve as Chairman of the Senate Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety 

and Security of the Senate Commerce Committee. Now, my Subcommittee has sole jurisdiction over railroads. One issue of great 

importance to our Subcommittee involves the processing of solid 

waste in open piles on railroad property without regard for the effects it has on the surrounding communities. 

Generally speaking, solid waste is an environmental hazard and 

must be handled properly. Under Federal guidelines issued by the 

EPA, States typically regulate the handling of solid waste, but 

there is a loophole in Federal law that says, if you are a railroad, 

you are exempt; these State environmental laws cannot apply. 

Well, recently, railroads have been taking advantage of this loophole and operating unregulated solid-waste processing facilities on 

their property. There have been fires at these sites, reports of dust 

and debris blowing in the wind from them, terrible odors, and the 

potential pollution of our water resources by runoff from these piles 

of waste. 

Now, despite opportunities for the courts and the Surface Transportation Board to resolve this obvious problem, the loophole is 

alive and well. And we have to pass legislation to close it and allow 

New Jersey and other States to protect the health of their residents 

through the effective regulation of solid-waste processing. 

Now, I want to emphasize to the Committee that this is not just 

a New Jersey problem. Again, it is viewed with interest by many 

processing organizations, railroads. And solid-waste sites are being 

proposed all over the Northeastern United States, and I am certain 

that we will soon see more sites all over the country. Just picture 

it, a dump site out in the open; just throw your trash there and 

leave it behind. 

That is why I introduced the Clean Railroads Act of 2007. And 

I am proud that my colleague from New Jersey, Congressman 

Frank Pallone, is the author of this legislation in the House. Now, 

our legislation would make it clear that solid-waste processing facilities, even if they happen to be located on or next to a rail line, 

are not given any special reprieve for meeting State environmental 

standards. Importantly, our bill would still preserve the uniform 

Federal regulation of railroad transportation that is so important 

to interstate commerce. 

The bottom line is, however, that States should regulate solidwaste processing because they know what is best to protect the 

workers, the residents and the environment. The Clean Railroads 

Act of 2007 will assure this protection. 

The Senate Commerce Committee has already reported out revised language from my bill as part of a larger package on railroad 

safety legislation. We are going to continue to work with interested 

parties to perfect that language reported out by the Committee. 

And I hope that this Subcommittee will take up and pass the Clean 

Railroads Act as quickly as possible, so that Congress can speak 

with a single voice and act to resolve this problem. 

I thank you, Madam Chairman, for the opportunity to be here 

and to present our view. 

7

Ms. BROWN. Thank you, Senator. 

I yield to Mr. Oberstar, who is the full Chair of this Committee. 

Mr. Oberstar? 

Mr. OBERSTAR. Thank you, Madam Chair, and thank you, Mr. 

Shuster, for holding this hearing and for the time that it takes to 

invest in setting up such a hearing. 

I want to thank Mr. Pallone, our colleague; Mr. Murphy; and especially Senator Lautenberg. We have a very special friendship and 

a professional association and respect for one another. It goes back 

over 20-some years. 

I recall, in this very Committee room, I was Chair of the Subcommittee on Investigations and Oversight, holding hearings on 

proposals to end the smoking on-board aircraft, and Senator Lautenberg just came into the Committee room. He just walked in and 

walked up and said, ′′Can I testify?′′ I said, ′′Of course.′′ Senator LAUTENBERG. I know better now. 

Mr. OBERSTAR. Of course. He did not send a letter. He did not 

send staff or anything formal. He just said, ′′I just feel so strongly 

about it.′′

Our then-Committee Chairman, Mr. Howard from New Jersey, 

was astonished. He was a heavy smoker, and he had said, ′′Well, 

if you pass this legislation limiting smoking or preventing smoking, 

then I cannot fly anymore. I have to drive or take a train.′′ Senator 

Lautenberg just gave his straight, unabashed, unreserved testimony about the evils of smoking on-board airplanes, including a 

great respect for flight attendants. 

I remember that testimony so well. It was from the heart, it was 

candid, it was forceful, it was fact-filled. A week or so later, we had 

an 11-hour markup in this Committee room, and we started at 

10:30 that morning and went until nearly 11 o’clock or 10 o’clock 

that night, and lost by one vote. But then when the appropriations 

bill for transportation came to the House floor, it was Mr. Durbin 

who offered an amendment based on our hearings——

Senator LAUTENBERG. Right. 

Mr. OBERSTAR. —and Senator Lautenberg’s testimony. And it 

passed overwhelmingly on the House floor, as I knew it would. And 

since then, we have had clean airplane interiors. 

Senator LAUTENBERG. Thanks very much. 

If I may for a second, I did not realize—I was fairly new in the 

Senate at the time—I did not realize that running the risk of developing wrath from such a powerful Committee Chairman might 

come around and bite me. But the issue made its own way. And 

today, Mr. Oberstar, when I get on an airplane—and sometimes 

modesty prevents me from really shouting it outloud—I say, ′′Well, 

you cannot smoke on airplanes because I wrote the law,′′ and 

younger people will say, ′′No, you never could smoke on airplanes.′′ Mr. OBERSTAR. It has been that long. 

Senator LAUTENBERG. So, anyway, we made sure of that. And I 

am delighted to be with here with my colleagues from the House. 

Mr. OBERSTAR. Once again, you come to us with a valid cause 

and an earnest advocacy and based on health concerns. And we 

ought to move this legislation, and we will very much pursue and 

accept your recommendations. 

Senator LAUTENBERG. Thank you very much. 

8

Ms. BROWN. Mr. Shuster would like to make a comment. 

Mr. SHUSTER. Thank you, Madam Chair. 

I appreciate all of you being here today. This is an issue that was 

never intended under the law, but it has taken on its own life because of the litigation that continues to arise. 

When it comes to waste, Pennsylvania is the number-one importer of trash. So, as we move down the road, that is something 

that I want to make sure that we are looking at, because, year in 

and year out, the State of Pennsylvania tries to fight this importation of trash from many other States, much of it coming from New 

Jersey. 

It is something that we want to look at, but we have always—

I am not a constitutional attorney or a lawyer, so I cannot sit up 

here and state with real authority on the interstate commerce 

clause. But that has been something that Pennsylvania has not 

been able to overcome, and hence, a lot of trash gets imported into 

Pennsylvania. 

So it is something that I want to make sure that I am looking 

at closely, not only this issue on the transfer stations but, you 

know, where trash is coming and going and how we allow our 

States to have some say in this matter. 

So I appreciate all three of you being here today. Thank you. 

Ms. BROWN. Thank you all very much for your testimony. 

Now Mr. Rahall has an opening statement. 

Mr. Rahall? 

Mr. RAHALL. Thank you, Madam Chair, for recognition and for 

holding today’s hearing. 

I believe this is probably the second time in less than a month 

that we have had the pleasure of receiving testimony from the upcoming panel, the board members of the STB. I believe it is also 

the second issue on which we have heard strong disagreement and 

debate from within the board, itself. And that is probably a good 

thing, as we air our grievances and bring on the debate. 

Some, today, say there is a disagreement regarding what specific 

activities are covered by the Federal preemption clause. Some of 

our witnesses today would say that a waste-transload facility is not 

covered. However, the ICC Termination Act is very clear when it 

defines the preemption clause to cover dropping off cargo, loading 

it onto trains and the shipping of cargo. 

The 3rd Court of Appeals recently stated in its decision of September 4th, 2007, that facilities engaging in the receipt, storage, 

handling and interchange of rail cargo fit within the plain text of 

the Termination Act’s preemption clause. 

I would ask, Madam Chair, that the 3rd Circuit’sdecision be 

made a part of the record. May that be made part of the record? 

Ms. BROWN. Without objection. 

Mr. RAHALL. One further item, Madam Chair. 

There is also disagreement, of course, over how well a State like 

New Jersey or Massachusetts can protect their citizens through the 

exemption, given health and safety concerns. 

Madam Chair, according to an article published on April 28, 

2007, by New Jersey’s The Record, three solid-waste transfer stations operated by New York, Susquehanna, and Western Railway 

Corporation were shut down because of a lack of adequate fire safeVerDate 0ct 09 2002 10:22 Feb 07, 2008 Jkt 000000 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 P:\DOCS\38517 HTRANS1 PsN: JASON
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ty sprinklers. So it does show that these health and safety concerns 

are currently being considered. And I would ask that that article 

be made a part of the record as well. 

Mr. RAHALL. If States do not have the authority to enforce their 

health and safety regulations, I would ask, under whose authority 

did New Jersey shut down these facilities that are referenced in 

the attached article? 

I would also point out that restricting STB’s jurisdiction on railroad-owned waste-transfer facilities could very well set off a dangerous precedent. If we allow one type of commodity to have the 

Federal exemption removed, where does it stop? Are there not similar concerns associated with other products, such as paint or pesticides? 

Again, Madam Chair, thank you for allowing me to make these 

comments. And I ask that the two referenced articles be made a 

part of the record. 

Ms. BROWN. Thank you, Mr. Rahall. Your statements and articles will be submitted to the record, without objection. 

Now, Mr. LoBiondo from New Jersey. 

Mr. LOBIONDO. Thank you, Madam Chair, very much for holding 

the hearing today and for the opportunity to make a brief statement. 

I am very pleased that you have chosen to allow Mayor Kathy 

Chasey from Mullica Township, which is in my district, the 2nd 

Congressional District of New Jersey, to be testifying a little bit 

later on today. 

Mayor Chasey and the residents of Mullica Township have been 

through a very agonizing period over the last few years. In the 

spring of 2005, a local waste-disposal company leased 20 acres of 

land adjacent to a short line owned and operated by a railroad company, for the purpose of establishing a 24-hour-a-day waste-transfer facility. Needless to say, the township was very concerned with 

the impact the facility would have on the environment and on the 

quality of life of its residents. Concern quickly turned to outrage 

after the township was informed that existing Federal law preempts any local or State laws on zoning ordinances or environmental regulations. 

Mullica joined with the State of New Jersey to fight the proposed 

facility in Federal court. On December 5th, the court imposed an 

injunction, barring the development of the facility until the court 

could resolve whether the National Parks and Recreations Act of 

1978 conflicted with the preemption standards in the Interstate 

Commerce Commission Act of 1995. 

The National Parks and Recreation Act established the Pinelands National Reserve, 1.1 million acres of pine forest, the development of which requires the approval of a joint Federal and State 

commission. Fortunately, Mullica falls nearly in the center of the 

pinelands, and the conflicting Federal laws ultimately helped 

Mullica dodge the bullet. Unfortunately, other small towns in New 

Jersey and across the Northeast have not been so lucky. That is 

why it is critical for this Committee to move legislation to clarify 

the STB’s preemption authority. 

I want to thank Congressman Frank Pallone. I am thrilled to be 

working with him and other members of our delegation on the legVerDate 0ct 09 2002 10:22 Feb 07, 2008 Jkt 000000 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 P:\DOCS\38517 HTRANS1 PsN: JASON
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islation we have introduced to remove the Federal preemption of 

waste-transfer facilities. I understand the concerns our railroads 

have in reducing the scope of Federal preemption, but facilities 

that are not integral to the operation of the railroad and which 

pose a threat to our environment and quality of life, such as wastetransfer stations, should not be granted approval without the consent of local residents. 

Madam Chair, once again, I thank you very much for the opportunity to be here and for Mayor Chasey to be here. 

Ms. BROWN. Thank you. 

Mr. John Hall? 

Mr. HALL. Thank you, Madam Chair, for having this important 

hearing and for allowing my participation today, and also for inviting Mayor Gregory Schmidt of the Village of Croton-on-Hudson, in 

my district, who is on the third witness panel today. 

Mayor Schmidt, would you stand up for a second? Thank you. We 

are looking forward to your testimony. 

Dr. Schmidt is a chiropractor by trade and has served as mayor 

since 2005. Prior to that, he served as a village trustee for 3 years 

and has maintained an active relationship with civic groups like 

the Croton Chamber of Commerce and the Croton Rotary Club. 

As he will show in a few moments, his participation in the civic 

life of a community that has wrestled with the issue before us 

today makes him well-suited to testify about the impact of legal 

loopholes that allow for the preemption of health and environmental standards governing municipal waste facilities. 

As the testimony of the mayor and other witnesses will soon 

make clear, the legal framework that grants the STB exclusive jurisdiction over rail facilities has left a loophole large enough to 

drive a garbage truck through. Although procedures vary by State, 

the process for building a municipal waste facility is usually a 

lengthy one that ensures public interest is served by requiring local 

zoning and approval, as well as health and environmental certifications. In order to circumvent that process, some waste carriers 

and railroads have been collocating waste facilities with rail infrastructure to avail themselves of the sole jurisdiction afforded to the 

STB. 

Congress gave the STB this jurisdiction in order to make sure 

that our Nation’s critical railways would be able to effectively meet 

transportation needs, not to help waste companies and railroads 

dodge rules that were meant to protect the public. 

The STB has never been intended to and is currently not 

equipped to evaluate the impacts of solid-waste storage and transfer on the public health and the surrounding environment. As a result, these facilities and the waste they contain end up in a legal 

no man’s land, with little or no oversight. 

Unfortunately, local ecosystems, groundwater supplies and air 

quality do not pay much attention to the regulatory ins and outs 

of rail law. Unregulated waste can present the same threat to local 

health regardless of whether they are connected to a rail line by 

a few hundred feet of track. 

Often, these small communities, like Croton-on-Hudson, that 

host these sites have concerns about their impact but lack of financial resources or the legal recourse to protect the health of their 

11

own citizens. That is why we need to make sure the regulations 

match the reality. That is why I am proud to be a cosponsor of 

Congressman Pallone’s legislation. And today’s effort is a strong 

step forward in that effort. 

I thank the mayor for his testimony, and I thank the honorable 

Chairwoman for holding this hearing. 

I yield back. 

Ms. BROWN. Thank you. 

I would ask that the first panel to come forward, please. 

Good morning. 

I am very pleased to introduce and welcome our witnesses this 

morning. 

Our first witness is Chairman Charles Nottingham. 

Mr. Nottingham, while you had recently testified for the first 

time before the Full Committee, this is your first time testifying before the Subcommittee. We are very pleased to have you here 

today. 

Our second witness is the Vice Chair of the STB, W. Douglas 

Buttrey. 

Mr. Buttrey, at our last hearing on this issue, you were the 

Chairperson, and I hope you will not be afraid to lend Mr. Nottingham direction on this issue where you feel it is appropriate. 

Our final witness for the panel, who is a former person who 

worked with the Committee, is Mr. Mulvey. 

We are always happy to see you, and we are happy that you are 

here today. 

I ask that you limit your oral statements to 5 minutes. However, 

your entire written statements will appear in the record. 

Mr. Chairman? 

TESTIMONY OF HON. CHARLES D. ′′CHIP′′ NOTTINGHAM, 

CHAIRMAN, SURFACE TRANSPORTATION BOARD; HON W. 

DOUGLAS BUTTREY, VICE CHAIRMAN, SURFACE TRANSPORTATION BOARD; HON. FRANCIS P. MULVEY, COMMISSIONER, 

SURFACE TRANSPORTATION BOARD 

Mr. NOTTINGHAM. Good morning, Chairwoman Brown and Members of the Subcommittee. 

My name is Charles Nottingham, and I am Chairman of the Surface Transportation Board. I do appreciate the opportunity to appear before this Subcommittee today to address how the STB regulates rail-related solid-waste transload facilities. 

From a personal perspective, I just want to note that I did grow 

up in northern New Jersey. I still spend a lot of time there and 

will be there later this week, and am very aware of the environmental sensitivities and concerns related to this issue and to others. 

Turning to the specific issue at hand, the express Federal preemption contained in the STB’s governing statute gives the STB 

exclusive jurisdiction over ′′transportation by rail carriers.′′ To 

qualify for preemption, two tests must be met: The operation must 

be rail transportation, and it must be conducted by a rail carrier. 

Congress has defined the term ′′transportation′′ broadly to include all of the facilities used for and services related to the movement of property by rail, expressly including, the ′′receipt, delivery, 

12

transfer and transit, storage and handling of property.′′ Thus, 

under our statute, transportation is not limited to the movement 

of a commodity while it is in a railcar, but includes activities such 

as loading and unloading material from railcars and temporary 

storage. 

However, manufacturing and commercial activities that occur on 

property owned by a railroad that are not part of or are integral 

to the provision of rail service are not part of transportation. 

Therefore, these activities do not qualify for Federal preemption 

and are subject to the full panoply of State and local regulation. 

Even where an activity is transportation and preemption applies, 

the Board has made clear that there are limits. The Board has 

never interpreted the statute to mean that it preempts all other 

law. Rather, where there are overlapping Federal statutes, they are 

to be harmonized with each statute given effect to the extent possible. Nor is all State and local regulation affecting rail carriers 

preempted. Rather, States retain certain police powers to protect 

public health and safety. These powers include requiring railroads 

to comply with local fire, electrical and building codes, to allow 

local government to inspect their facilities, and to share their plans 

with the community when they are undertaking an activity for 

which a nonrailroad entity would require a permit. 

It is also important to keep in mind that preemption applies both 

to cases that require STB licensing authority and also to some that 

do not. 

First, if a project involves building a new rail line into what 

would be a new service area for the railroad, it requires a license 

from the Board. 

Second, if a project involves a new carrier seeking to acquire or 

operate an existing rail line, the new carrier must also obtain authority from the Board, usually in a summary class exemption 

process. The Board has become increasingly concerned recently 

that this process does not always provide enough information about 

a pending proposal to allow us to handle our regulatory responsibilities effectively and efficiently. 

We recently initiated a rulemaking proceeding to consider whether to increase the information required from all of those seeking to 

use the class exemption procedures to acquire, lease or operate rail 

lines. In some cases, the Board has stayed or delayed the effectiveness of a notice invoking a class exemption to allow a more searching inquiry and to solicit further evidence. 

For example, we recently held up the proposal of Ashland Railroad to lease and operate 1 1/2 miles of currently unused track in 

Freehold, New Jersey, and to develop a transload facility on that 

track because we needed to obtain additional information. After the 

railroad, Ashland, failed to adequately respond to specific questions 

about the nature of the proposed operations and the potential impacts to wetlands and water supply, the Board rejected Ashland’s 

request for authority. 

We hope that our rulemaking procedure will improve this process 

and lessen the need for stay requests. And we look forward to receiving comments from all of the witnesses before you today. 

In the third and final category, there are those activities that, although part of rail transportation, may not be subject to STB liVerDate 0ct 09 2002 10:22 Feb 07, 2008 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 P:\DOCS\38517 HTRANS1 PsN: JASON
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censing. These activities include making improvements to existing 

railroad operations, such as adding track or facilities at existing 

railroad locations, including transload facilities where materials 

are transferred between truck and rail, to better serve the needs 

of railroad service territory. 

Because no Board license is required in these types of cases, 

there is no occasion for the STB to conduct a formal environmental 

review or to impose specific environmental conditions. However, 

Federal environmental laws continue to apply, and State and local 

police powers are not preempted. In addition, any interested party, 

community, State or local authority concerned may bring their concerns to the Board via a declaratory order request. Alternatively, 

they can go directly to court. 

Just last week, the Board issued an order related to a project in 

Yaphank, New York, requiring the entity constructing facilities to 

immediately cease that activity and to either obtain Board authorization for the activity or a Board decision finding that the activity 

does not require our approval. We have also increased our inspection activity, where we send our staff directly to the facilities to 

find out what is going on on the ground. 

Finally, some States have adopted regulations that accommodate 

Federal preemption but allow them to inspect and impose other requirements on rail-related waste facilities under the police powers 

they do retain. For example, New Jersey has regulations, known as 

the 2-D regulations, that shield the carrier from the need to comply 

with zoning and other preconstruction, environmental and land-use 

permits but impose a number of other requirements on rail-related 

solid-waste facilities that are meant not to impede the continued 

flow of interstate commerce. 

The Board has never been asked to formally address the New 

Jersey regulations, and we are not currently a party to the litigation pending in the Federal courts regarding them. But I would say 

it would be consistent with everything the Board has said about 

the scope of preemption that States can apply their regulations to 

rail-related waste facilities so long as the regulations are not applied in a discriminatory manner and the regulations do not unreasonably interfere with a railroad’s right to conduct its operations. 

Therefore, personally, I would not object to New Jersey implementing its 2-D regulations or to other States adopting or implementing similar regulations. 

While the statutory and regulatory issues presented in these 

types of cases are quite complex, the public interest and policy considerations involved in these controversies require policymakers to 

balance several important and often conflicting policies. And in conclusion, I will just run through them very quickly. 

It is such policy balancing as: How do we promote and expand 

the national rail network when local property owners, competing 

solid-waste facilities that are not located close to a railroad, and 

local and State governments seek to regulate rail operations? How 

can rail service help our country meet a growing demand for the 

transportation of material that some might view as controversial or 

a flat-out nuisance or worse? How can reasonable State, local and 

Federal health, safety and environmental safeguards for this type 

of rail transportation be implemented and imposed? 

14

What protections should rail operators have, legitimate rail operators, if local, State and Federal regulation become unreasonable 

and tantamount to the flat-out zoning of the national rail network? 

I believe that last point deserves continued attention because there 

seems to be a presumption, which I hope we can get into in some 

of the Q&A, that there would never be a case where a community 

just did not want a rail operation regardless of what it is carrying. 

We do see those tensions everywhere. 

I appreciate the opportunity to be here with you today and to address these questions. Please be assured the Board is focused very 

earnestly and diligently on these issues, and we will continue to do 

so. And I look forward to receiving any questions you might have. 

Ms. BROWN. I ask unanimous consent that Mr. Tim Bishop be allowed to participate in today’s hearing and to sit and ask questions 

of the witnesses. Without objection. 

Mr. Buttrey? 

Mr. BUTTREY. Good morning, Chairwoman Brown, Ranking 

Member Shuster and Members of the Subcommittee. 

My name is Douglas Buttrey. I have had the privilege to serve 

as a member of the Surface Transportation Board since May 28, 

2004. Currently, I am the Board’s Vice Chairman. I appreciate the 

opportunity to appear before the Subcommittee today, as you conduct this hearing on the railroad’s solid-waste transload facilities. 

The Board’s Chairman, Charles Nottingham, has submitted testimony which discusses key issues before the Board and which summarizes recent significant Board decisions and actions on this matter. The Chairman’s testimony covers everything I would have said 

accurately and in detail. Rather than duplicating coverage of the 

same topics, I will instead associate myself and endorse the Chairman’s formal filed testimony. And I stand ready to respond to any 

questions the Committee may wish to address to me. 

Thank you very much. 

Ms. BROWN. Mr. Mulvey? 

Mr. MULVEY. Thank you. Good morning, Chairwoman Brown, 

Chairman Oberstar. Thank you, Member Shuster and other Members of the Committee. I want to thank you for this opportunity to 

speak on railroad-owned solid-waste transload facilities. 

This agency was last called before this Subcommittee on this 

issue in May of 2006, when my colleague Doug Buttrey Chaired the 

Board. I want to commend Vice Chairman Buttrey for his testimony at that hearing. I would also like to take this opportunity, 

however, to update the Subcommittee on developments that have 

transpired at the Board in the 17 months since his testimony. 

The Board has recently taken a more assertive stance toward 

cases involving waste, but I believe we need to do more to prevent 

them from becoming cases in the first place. In a more proactive 

manner, we need to exercise the full range of our powers to deal 

with the situations that confront us, and there may be a need for 

clarification of the railroad preemption law by the Congress. 

In Attachment B to my testimony today, I have listed the various 

cases involving municipal solid waste or construction and demolition debris that have come before the Board in the past 17 months. 

The titles of these cases show that they come to the Board in many 

different guises and that entities and their representatives will go 

15

to great lengths to obtain the Federal preemption of solid-waste-related rail projects. 

A review of the Board’s decisions confirms that we have become 

increasingly concerned about the tactics used in this bubble of 

cases and have become more cautious in permitting certain projects 

to move forward, as the Chairman has indicated. Indeed, just this 

last week, the Board initiated a proceeding to examine whether or 

not more information might be warranted up front in situations 

where an entity, seeking authorization from the Board, intends to 

provide facilities for the transportation or the transloading of municipal solid waste. 

Next, as you are aware, the Board held an oral argument this 

past April in an important and controversial preemption case, 

known as the New England Transrail, which you will hear from 

later on in this hearing. It was highly unusual for the Board to 

hold such a hearing in a nonrate case. On July 10th of this year, 

the Board issued its decision on which of the NET’s proposed 

waste-related activities would be preempted from local regulation 

if NET were to be authorized as a railroad. I issued a strong dissent describing my views and reasoning. Let me further elaborate 

on those views today. 

First, let me take a moment to reassure you that I am and always have been an ardent supporter of Federal preemption. Congress and the courts have long recognized that there is a need to 

regulate railroad operations at the Federal level in order to avoid 

a patchwork quilt of State and local regulations that could impede 

an efficient flow of commerce. The Act, especially as amended by 

the Interstate Commerce Commission Termination Act of 1995, is 

one of the most pervasive and comprehensive of Federal regulatory 

schemes. 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. Commodities 

such as MSW, C&D debris and hazmats must move by rail because 

of their physical characteristics. But because preemption applies to 

our rail universe and only to, quote, ′′transportation by rail carriers,′′ end quote, and because the determination of what is 

′′transportation′′ and who is a ′′rail carrier′′ is within the Board’s 

jurisdiction, we should be exceedingly careful of how we exercise 

that discretion. 

In considering the spectrum of MSW-related activities that an 

entity conducts, we have the discretion to determine at what point 

transportation and, thus, preemption begins. I regret that my colleagues and I disagreed about where this precise point was in New 

England Transrail, but I recognize that in any fact-bound determination, such as in that case, there may be disagreements. I dissented in the Transrail case not only on the facts of that particular 

case but also on policy grounds. Based on the inherent qualities of 

municipal solid waste, I believe its handling should not be accorded 

Federal preemption as integrally related to rail transportation. 

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 handling and disposal facilities. There is a critical reason that the power to regulate 

16

the handling of solid waste has been delegated by the EPA to the 

States, and that is because the 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 in their areas. 

Differing jurisdictions have different rules about what commodities should be kept out of the waste stream through recycling or 

through other special collections and through the disposal of yard 

waste and appliances. These same governments, then, are in the 

best position to determine how to handle the MSW that is generated in their areas and how to deal with noncompliant materials 

when the rules are not followed. And they often are not followed. 

Unfortunately, while the Board typically harmonizes its interpretation and implementation of the IC Act with other Federal laws, 

there is no Federal law to be harmonized here precisely because 

the States have been delegated the authority and the responsibility 

to regulate in the area of MSW handling. 

Finally, let me tell you what my New England Transrail dissent 

was not intended to do. My dissent focused narrowly on MSW. I did 

not object to the majority’s findings with respect to C&D debris. 

The primary danger with that commodity is that it might contain 

asbestos, where the removal and disposal are governed by EPA and 

OSHA regulations. I also did not intend to disturb the delicate balance between local regulation and the enforcement of health and 

safety laws on the one hand and the Federal preemption of local 

laws on the other, except with regard to MSW. 

In conclusion, I am troubled by the recent uptick in assertions 

by 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 the 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. 

Either these entries are truly rail carriers providing transportation so their activities warrant Federal preemption, or they do 

not have rail carrier status and are subject to State and local regulations. They cannot have it both ways. If the Board’s existing interpretation of the Act cannot stop this practice, then it is time for 

the Congress to step up and do so. 

Thank you for the opportunity to testify today. I look forward to 

answering any questions you may have. 

Ms. BROWN. Thank you very much. 

Mr. Oberstar, Chairman of the Full Committee. 

Mr. OBERSTAR. Thank you, Madam Chair. 

I regret having to intercede here, but I have to go to another 

Committee function, a Committee meeting on transit issues. 

I think, Mr. Nottingham, you overstate the case, in worrying 

about Federal—when you include Federal along with State intervention on this particular issue about zoning, that the Federal Government is not going to do zoning, that the Federal Government 

agency is not going to intercede to do zoning. I think that is an 

overstatement. I understand the railroads’ and the Board’s longVerDate 0ct 09 2002 10:22 Feb 07, 2008 Jkt 000000 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 P:\DOCS\38517 HTRANS1 PsN: JASON
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standing concern for Federal preemption, an issue that, in some respects, should be subject to reconsideration. 

Without addressing the issue of State action or State authority 

to regulate in the public health interest, what would be your reaction to EPA’s having primary jurisdiction over solid-waste disposal 

facilities on railroad properties, as they have had in all other circumstances? 

Mr. NOTTINGHAM. Mr. Chairman, would you like me to take a 

crack at that? Thank you for the question. 

First, if I could, I will just address your first point. With all due 

respect, I hope I did not say that there are any proposals currently 

pending that I have seen that——

Mr. OBERSTAR. You were not talking about current proposals, but 

you expressed a worry that Federal involvement and, certainly, 

State involvement could result in the zoning of rail activities. Without touching the State issue, I do not see how a Federal Government agency would be involved in zoning. I think that is an overstatement. 

Mr. NOTTINGHAM. I do not know of any Federal agency that is 

proposing——

Mr. OBERSTAR. Address the other matter for me, please. 

Mr. NOTTINGHAM. Yes, sir. And I would be happy to revisit later 

the zoning question, because it is very important. 

We would be happy to partner—in fact, we do partner with the 

EPA currently in probably the biggest and most exhaustive record 

we have developed in the history of the Board on this issue, which 

is the New England Transrail case that we had an 11-hour hearing 

on. We actually put that project on hold until the EPA finishes a 

very exhaustive, remedial feasibility and investigative process that, 

the last time we checked, has no schedule per se. It may go for 

quite some time. In fact, that project is probably one of the most 

regulated projects in the world. 

Mr. OBERSTAR. But, in the end, if the EPA comes to a conclusion 

the Board does not like, who has the prior authority? 

Mr. NOTTINGHAM. We would defer to the EPA on their whole 

range of expertise, which, on that parcel, it is fairly fact-specific 

there. That happens to be an old Superfund site, so especially in 

a situation like that—and then we would, of course, expect that on 

transportation and interstate commerce matters the EPA would 

give us some deference. And in that spirit, I think we can continue 

to work well with them, and I——

Mr. OBERSTAR. Is that established by regulatory action by the 

Board? 

Mr. NOTTINGHAM. Not that I am aware of. It is just something 

the statute anticipates. And the way we have always interpreted 

it is that all Federal laws and statutes and their implementing 

agencies have full jurisdiction in these matters. 

Mr. OBERSTAR. Thank you. 

Mr. Mulvey, what would be your reaction to having EPA preeminent authority in such matters? 

Mr. MULVEY. Well, the EPA, theoretically, would. The EPA has 

purposefully delegated that authority to the States and localities, 

because they are the ones who have the expertise in this area. 

They are the ones who understand——

18

Mr. OBERSTAR. But the EPA delegates authority only where 

there is a State plan, only where there has been a prior approved 

plan by the EPA, not just delegating willy-nilly. And I do not think 

the Board has any sort of plan to accept the delegation of authority. 

Mr. MULVEY. That is true. I was referring that the EPA generally relies upon State and local regulations to govern solid-waste 

facilities, but there are not any specific EPA regulations governing 

municipal solid waste. They expect the local governments to do it; 

they have the on-the-ground expertise. This is why I am so concerned that there is not this Federal law regarding these facilities 

to harmonize with. It is only the States’ and local laws. And those 

are being preempted in some cases and, therefore, cannot be enforced. 

Mr. OBERSTAR. Thank you, Madam Chairman. 

Ms. BROWN. Thank you. 

Mr. Shuster? 

Mr. SHUSTER. Thank you very much, Madam Chair. 

My concern about this law is that it is sort of a Trojan horse. All 

of a sudden, the Federal law takes, and there is no preemption, 

and communities will stop these transfer sites from being in their 

communities. 

You know, I understand that it is not the best thing that you 

want in your community, a transfer site or a dump. But the reality 

is that we are all producers of garbage. Everybody in this room 

today is going to throw something in a trash can, every one of the 

300 million people. So we have got to take the personal responsibility to say we are going to have to have a transfer station in a 

community. We are going to have to have sites where we bury the 

garbage underground. 

As I said to the three members previously, Pennsylvania is the 

number-one importer of trash in the country. As of 2005, we have 

taken in 10 million tons of trash, more than any other State. And 

it is my view that, if Pennsylvanians create the trash, Pennsylvanians ought to deal with it. The same should be for New Jersey 

and all across this country. 

So, again, I am concerned that this bill—and the Chairman, I 

think, just talked to you, Mr. Chairman, about zoning. It is my concern you used this law, this Federal law, and you will have the 

ability to use Federal law to create zoning and say, ′′Okay, well, 

our community is not going to have this site.′′

Could you talk a little bit more about the zoning you are talking 

about? 

Mr. NOTTINGHAM. This has always been, really, at the core of 

this policy concern, which is, how much complete land use and zoning control should State and localities have over rail operations? 

Understandably, it is a very delicate issue. Nobody would prefer or 

choose to, most likely—I might be, you know, the exception. I 

choose to live two blocks from the main CSX line because I love 

railroading and I like to be near a station. But let’s face it, most 

people would prefer not to live adjacent to a noisy, active rail line 

or facility, no matter what it is carrying, not to mention things that 

are far more hazardous than what we are talking about today, that 

19

move through right—you know, in the not-too-distant past, right by 

this building, there was hazmat and chemicals and what have you. 

To answer your question, this is at play right now in pending legislation. My understanding is this body has an amendment coming 

to the floor, perhaps this week, on the rail safety bill that has the 

words ′′any Federal or State agency′′ in it. It does not say ′′Environmental Protection Agency.′′ It is ′′any′′ agency, which, to 

me, means your local zoning board, your land use board. What you 

will see happen is folks will say, ′′We just do not want you. We do 

not care how upstanding you are, how much due diligence you have 

done, how much security, how many protections you put in place. 

You are just not welcome here in our community.′′ In the Senate, we have seen that language move with very specific amendments to actually specifically call that out and say ′′not 

including zoning and land use.′′ So it is playing out right before our 

eyes. We see one bill in the Senate, Senator Lautenberg’s bill, to 

address that concern. It takes a very thoughtful approach, by the 

way. Then we have a bill racing to the floor of the House that actually says any agency at the State or local level can regulate. And 

I do not see how that does not play out to be a flat-out denial just 

for zoning or land-use reasons. 

Mr. SHUSTER. Which is a concern of mine. Would you care to 

comment. 

Mr. MULVEY. I agree. I don’t believe that the purpose is to allow 

zoning in such a way that it precludes establishing a solid waste 

facility to transfer to a rail to move it out, and that is important. 

The laws need to be narrowly drawn to be very specific, as I think 

both the Lautenberg and the Pallone bill do. 

Mr. SHUSTER. I think it is extremely important, because again I 

see all kinds of unintended consequences occurring, because again 

nobody wants to live near a landfill. The reality is we got to put 

the garbage somewhere and communities have to step up and take 

care of their own waste. I don’t know that you mentioned this, but 

the notification for these permits. My understanding is before there 

was no notification and then in the last several months you have 

put that into effect, that there has to be notification given so that 

these people can’t just go out there and just operate. Is that accurate and how is that working? 

Mr. NOTTINGHAM. Sir, that is an active area. We are trying to 

sharpen our ability to regulate as we speak. We have announced 

a new rulemaking procedure where very much the focus of that is 

going to be to gather increased information. But in the meantime 

we are not waiting for that because rulemaking procedures, as we 

all know, can take time as we get the public comment and everything. We very much have within our current powers and we are 

much more proactively enforcing this than probably may have happened in the past demanding information. It is not enough for 

someone to say, hey, we are a rail carrier, trust us and stamp approved. 

So repeatedly if you ask, and most of the controversies you will 

hear about from panels today, please ask the question, did the controversial transload facility ever open and did the STB play a positive role in preventing it from opening, I think you will hear over 

and over again, whether it be Freehold or Croton-on-Hudson or 

20

other situations, actually the concerned controversial project never 

came into existence. So if something is working out there, but it 

would, of course, understandably drive local and State officials 

crazy, I understand it, is these folks can aggressively try to race 

forward and bluff everybody and say back off, we are railroad, you 

can’t regulate it. Unfortunately, too many local governments and 

States back off and don’t implement their police powers, and that 

is why I made sure in my testimony to talk about the very thoughtful New Jersey 2D regulations that I think specifically respect zoning and land use, but actually do provide thoughtful regulation. So 

this Board at least personally is not against healthy and robust 

amounts of State and local regulation. 

Mr. SHUSTER. Just so I understand, notification has only been occurring in the last several months? 

Mr. NOTTINGHAM. No. I think that might be unfair. And I will 

let my four colleagues who have a little more history address this. 

But I think it is fair to say we have much more aggressively questioned supposed railroads for more information, and very often they 

back off and retreat. It is interesting. They run for the hills, so to 

speak, and then they come back with the same attorneys a week 

later under a different name, which is what we have seen happen 

recently, and we again ask for all their information. So it is a real 

challenge. 

Mr. SHUSTER. When you shine the light on the cockroaches, they 

run away. 

Ms. BROWN. Thank you. I have a question. Mr. Nottingham, how 

many rail solid waste transloading facilities are currently operating 

that are preempted from State and local environmental regulations? 

Mr. NOTTINGHAM. My understanding is we do not have that or 

keep that information at the Board. It is a question we get. We got 

that from the Wall Street Journal recently. It is a question we get 

very often. And we get most of our information on that, frankly, 

from trade associations that represent the waste business and 

through testimony we received at our long hearing on that one case 

up in New England. But my understanding is we do not have any 

detailed information or records on who out there—on any given day 

a rail facility today could stop carrying trash or start carrying 

trash and we might very well not know it. 

Ms. BROWN. Mr. Mulvey, do you know the answer? 

Mr. MULVEY. I don’t know the answer to that either. We do 

know, however, there has been a real uptick in the number of applications before us to construct these facilities. And we do know 

also that the MSW has become a growing and increasingly important commodity for railroads to carry. It is concentrated in the 

Northeast, but I don’t have the number of facilities that are preempted in front of me, no, sorry. 

Ms. BROWN. Mr. Nottingham, the STB stated in the New England transrail decision that the Federal preemption does not entirely preempt States’ police powers such as ensuring that the railroad comply with certain health and safety rules. Using the recent 

New England transrail decision as an example, how would State 

police powers apply for solid waste transloading facilities? 

21

Mr. NOTTINGHAM. Thank you for that very important question. 

In my view those powers, let us face it, the police powers are some 

of the broadest powers we have in our country. What could be more 

powerful than the ability to go onto someone’s property and protect 

public health and safety? It is the most fundamental, most powerful governmental power I can think of. It has been a mystery to 

me why more jurisdictions and States don’t use it more aggressively. Some are learning. And I understand it is hard when you 

get sharp lawyers saying, hey, there are 19 reasons you can’t touch 

our operation, and people think we are going to get sued and we 

are a small village or town. So I understand the challenge, but they 

are broad. 

First of all, fire inspection and compliance, code compliance, electrical, some of the things you heard today. We had a witness who 

came to our hearing from I believe a State entity saying we can’t 

even regulate for fire code. And that is just not the case. And so 

the powers are broad. When you hear about these mountains or 

these eight stories high of trash, to me that is a police power concern about piles of trash possibly blowing over, falling over, catching on fire, and those operations ought to be regulated. 

Ms. BROWN. Do you think the police, is that fire or is that environmental? I am concerned that we don’t have a composite to know 

how many applications, who is applying on a daily basis. Do you 

have the staff to deal with the inspections and to process the applications? How many people do you actually have working in this 

area? 

Mr. NOTTINGHAM. Our staff is about 140 total. Of course they 

don’t all work in this area. In the environmental area we probably 

have a small unit. I know we do. It is somewhere between six and 

10 people, depending how broadly we expand. We bring in other 

people, too, so at any given time we can have 20 people working 

on related issues from applications that come in and inspections. 

We do conduct field inspections. 

I am not here today asking for more staff, but I would be happy 

to have that conversation. We are not of course the front line police 

power investigator. That is and always should be the local government and supported and backed up by the State governments. We 

totally support that and think that should be, frankly, taken advantage of more often. 

And police powers is a very old legal concept. It is not just about 

the police department. But anything that is a pressing public safety problem that is playing out that can hurt somebody, you can 

pretty much come up with a police power reason to go visit that 

location and check into it and regulate it. 

Ms. BROWN. Would you like to respond, Mr. Mulvey? 

Mr. MULVEY. The problem of course is that is why we are here 

today. It is not clear what powers the States actually have over 

these facilities which are preempted by ICCTA and the Interstate 

Commerce Act. So that is where I think we may need some clarification as to what the States and localities can do. Where does 

transportation begin and where do the police powers come into play 

in the public health and safety by controlling things like how high 

the trash can go and whether or not there are adequate provisions 

for the control of vermin and odors and the like. 

22

Ms. BROWN. Mr. Buttrey, would you like to respond? 

Mr. BUTTREY. Madam Chairwoman, I would agree with what the 

Chairman has said and what Mr. Mulvey has said. The Board is 

very vigilant in this area. We have assured Members of the Senate 

and Members of the House that we will continue that vigilance as 

time goes by. I can’t speak for boards that will follow us. You will 

have to probably stay close to the situation when people follow us 

in these positions to make sure that they are enforcing the law. 

But I think Chairman Nottingham pointed out very eloquently that 

the police powers of the State, under the Constitution those powers 

are reserved for the States, and I would encourage localities around 

the country to be very vigilant about facilities that are proposed or 

that some may even try to go into operation without the proper approval, ours or anyone else’s. 

State Authorities are the people on the scene, on the ground in 

those locations, and unfortunately we are not. We don’t have that 

kind of staff and resources to do that, and we certainly depend on 

them. But I can tell you and I can assure you after having dealt 

with this issue for some number of months now that the three people sitting before you right now are going to make sure that to the 

extent that we have the authority to do so the public health and 

safety is going to be protected. 

Ms. BROWN. Do you have a concern that we don’t know how 

many operators have applied? 

Mr. BUTTREY. We don’t have that database at the Board. That 

would be something that the local communities, the Association of 

Counties, the cities, the Association of Mayors, other national organizations may have the ability to monitor. State legislatures may 

have the database available to them. We do not. We certainly have 

the information on the applications that have been presented to the 

Board for approval by institutions or organizations that want to engage in this activity, which I think we all agree is going to have 

to take place somewhere. We certainly know that and we keep up 

with that. 

We can certainly provide that for the record and would be happy 

to do so. But as far as having a database that tracks this sort of 

thing nationwide, we do not. 

Mr. MULVEY. I provide an attachment, Attachment B to my testimony, which does have the pending and recently decided STB cases 

involving MSW, but these are only the more recent ones. The first 

case that I dissented on when I came to the Board was one involving MSW and one I was very familiar with. It was extending a rail 

line into the Staten Island Fresh Kills Landfill. What we decided 

was that it was not a line of railroad, that it was a spur track so 

we didn’t regulate it. But then we turned around and we preempted the States of New Jersey and New York from regulating it. 

Now, this is a case where there were important wetlands in the 

area and because of our ruling nobody was protecting them. This 

has been a problem for quite some time now and it is one that is 

growing. 

Ms. BROWN. Thank you. Mr. Hall. 

Mr. HALL. Thank you, Madam Chair. No questions at this time. 

Thank you. 

Ms. BROWN. Mr. LoBiondo. 

23

Mr. LOBIONDO. Thank you. Just the one question for Chairman 

Nottingham. The STB has ruled that while State and local laws 

may be preempted, Federal laws, including environmental laws, 

must be harmonized, I think was the word that was used, with the 

ICC Termination Act. Can you tell me how the STB harmonizes 

overlapping Federal environmental laws and regulations? 

Mr. NOTTINGHAM. Well, I think the thinking there is that each 

Federal agency that has an area of expertise or is charged by statute with implementing certain public policies. For example, the 

EPA in many cases, and the STB on the interstate commerce side, 

needs to have its governing statutes and regulations apply. And 

also the harmonizer worked with the sister Federal agency to make 

sure that hopefully all the public policy goals that Congress envision in the statutes can proceed. In other words, in most cases 

there is no reason why—in my mind, in every case there is no reason why a thoughtful, environmentally conscientious and safe rail 

facility can’t advance and would advance the interstate commerce 

provisions of the act and, working with EPA, that EPA can do its 

job and protect the public from harm or health. 

So we do—it is not as if—the reason I made that point is sometimes you will hear that the Interstate Commerce Termination Act 

or the STB trumps all law. At the Federal level, it does not whatsoever. We work with our sister agencies to harmonize those laws 

and give each its full effect while trying to work to advance each 

agency’s objectives. 

Mr. LOBIONDO. Thank you. 

Ms. BROWN. Mr. Bishop. 

Mr. BISHOP. Thank you. Madam Chair, thank you very much for 

allowing me to participate in this hearing. Mr. Nottingham, I have 

a question for you. 

In your written testimony you indicate that the STB does not require a formal environmental review and does not impose specific 

environmental conditions. You also—I believe I heard you in response to Chairman Oberstar’s questions arguing against the imposition of a local role with respect to environmental standards, and 

you are concerned about that becoming a zoning issue that the Federal Government has no role in. 

We have a situation in my district. The town supervisor and the 

town affected is going to testify on the next panel. We had a rail 

company purporting to conduct—I mean, construct a spur. And 

they claimed a Federal exemption when they did not have one. And 

by the way, the STB has involved themselves in this case. And you 

have issued a ruling which is very helpful, and I thank you for 

that. But before the STB became involved they clear-cut 20 acres 

of property and began a sand mining operation. Now, they did so 

in their view under the cover of a Federal exemption, and that Federal exemption by current law does not include the imposition of 

environmental standards or environmental conditions. 

If the Federal Government does not take that role and the local 

government is preempted from taking the role, how does a municipality, a local government, protect itself against the kind of unscrupulous behavior that we are clearly witnessing in our district on 

Long Island? 

24

Mr. NOTTINGHAM. A lot of good questions there, Congressman. 

And we have been spending quality time, I can assure you, focused 

on your district in the very case and controversy you mentioned. 

And that will be with us I expect for a little while as we play out 

the legal process that we are currently in the midst of. 

Our agency, as you mentioned, we have been proactive, responding in a matter of days as we learn the facts. I have to be careful 

because it is a pending case. I won’t speak to the merits or demerits of the case. I will say that just in general, because you point 

out one example, it is in my view always unfortunate when a local 

government yields, no questions asked or with minimal questions, 

to a supposed railroad lawyer’s statement that we have preemption, back off. Because in many cases we find out that is a bluff. 

What localities need to know is they can petition us for a declaratory order or they can go to court and get a declaratory order. They 

do not have to take some proposed railroad lawyer’s word for it. 

Mr. BISHOP. If I can just interrupt for a second. In the case in 

which we are discussing in my district, the activity began before 

the town was approached at all. And the activity, again, began 

under the cover of this presumed preemption. And so I guess my 

question is if the preemption, and I understand the reason for the 

preemption, but if it yields this kind of unintended consequence 

and yet the STB would take the position that we don’t want to impose a local role with respect to rail facilities, there has to be some 

other governmental mechanism that would prevent this kind of 

outrageous behavior from taking place. Now, whether it is the EPA 

or some other governmental intervention, don’t you agree that we 

have a situation that with all governmental agencies acting appropriately has yielded a result that is unacceptable? If that is the 

case under existing law, then we have to change existing law? 

Doesn’t that just make sense? 

Mr. NOTTINGHAM. I agree with you that the status quo, the way 

these controversies have played out and the way local governments 

and neighbors have had some of their rights trampled, is not acceptable. There are a number of ways we can get on top. We are 

doing everything we can at the Board. I think Congress is well 

within your rights to play a strong role in this field. I do urge caution. Look at all the consequences, because we are all concerned 

about increased truck traffic and we are all concerned about the 

possibility of legitimate—remember, for every one of these controversies there are probably 50 legitimate law abiding, environmentally conscientious railroad operators who handle some trash. 

It could be a little bit, it could be a fair amount, it could be in containers. 

But getting back to your question, earlier you mentioned that the 

Board provides no formal environmental review nor conditions. 

That is absolutely not the case, and I do want to correct that. In 

a number of proceedings and fact scenarios we can provide enormous, and we do, conditions; NEPA review, denial. But there are 

certain cases where you have an existing railroad who tries to say 

I am just improving my facility and taking on a new line of business called trash where there is not that automatic STB. Someone 

has got to petition us or a complaint has got to be filed. 

25

Mr. BISHOP. I am almost out of time, but doesn’t your written 

testimony say that the STB is not required to conduct environmental review or impose environmental conditions? I think what I 

heard you say is that you may impose them, but you are not required to, is that correct? 

Mr. NOTTINGHAM. I think my testimony references about three or 

four types of ways these cases and controversies come to us. In only 

one of those types do we not have a proactive, in advance, opportunity to look at the environmental issues and also put in conditions or denial. And that is when an existing railroad decides to 

take on trash for the first time and we don’t know about it. So just 

there is a very minority, discrete area. In the vast majority of situations we have pretty broad authority. 

Again, localities, in answer to your question about somebody—I 

am not going to speak about the controversy in your district that 

is pending with us—but if in another place in the country someone 

were to run roughshod over a State’s land use and other laws 

under the guise, ill-gotten guise and erroneous guise that there is 

some kind of a preempted railroad, there should be enormous State 

and local repercussions that come down on that. I would expect 

there would be fines, penalties, license revocations at the State and 

local level, all the things that you do if an apartment building operator just starts knocking down apartment buildings without a permit or anything else. 

Mr. BISHOP. I thank you for that. 

Ms. BROWN. Mr. Bishop, you can finish. 

Mr. BISHOP. Thank you, Madam Chair. Mr. Mulvey, you wanted 

to comment on that. 

Mr. MULVEY. Well, we do have a Section on Environmental A 

nalysis, but it doesn’t do the kind of inspections and the kinds of 

monitoring that a State environmental agency would do. What our 

group does is if they are constructing a new track or abandoning 

a track we make sure that that construction or abandonment is 

done in an environmentally sound manner. But we don’t go in and 

actually inspect the way solid waste is handled and enforce State 

and local laws governing the processing and the handling of solid 

waste. Chairman Nottingham talked about a railroad taking on 

and building a track. Well, building a track, we would look at that, 

the way the track was built or the way the facility was built, to 

make sure it complied with effects on wetlands or whether an historical marker was moved. That is what our staff does. But our 

staff is not trained to monitor municipal solid waste activities as 

would be a State environmental agency. 

Mr. BISHOP. Thank you, Madam Chair. 

Ms. BROWN. Mr. Rahall. 

Mr. RAHALL. Thank you, Madam Chair, and thank you, Board 

members, for being with us once again. My first question concerns 

the health and safety concerns. Are they not the same if the commodity was something other than solid waste, such as paint, cosmetics, LNG, ethanol, wine, gasoline, coal, nuclear materials, automobiles, et cetera, et cetera, et cetera? 

Mr. NOTTINGHAM. I am concerned that while trash might be high 

on the nuisance scale of most citizens, things you don’t want to live 

or spend quality time around, boy, that list can be long when you 

26

really look at what goes on in our interstate rail system and you 

look at that we would depend on rail to move nuclear waste, to 

move hazardous waste, to move chemicals, pesticides, fertilizers. In 

the old days of course it was livestock, and a lot of early ICC cases 

are about, well, we can’t live near the cow pen while the cows get 

loaded onto the railroad. There is some real concern that you will 

have bills every year, if not multiple bills peeling away at the importance of preemption in the Federal Interstate Commerce Act. In 

saying that, I do not suggest that State and local government 

shouldn’t be given wide latitude to regulate in this area, but it has 

got to have a limit to it. And there should be some consideration 

of what rights a legitimate, honest railroad has if they become subject to unreasonable overregulation; i.e., you are not welcome in our 

community, go away, no matter how good you are. 

In the pending bill you will see there is really no recognition that 

there ought to be a safety valve or a way for a legitimate railroad, 

clean railroad to actually protect its rights. And that is really 

where many of my concerns lie. 

Mr. RAHALL. Any others? 

Mr. MULVEY. Some of these, in fact, some of the ones you mentioned, like paint, for example, is in fact in the mix of the solid 

waste stream and in fact is one of the problems with some of the 

landfills and some of the storage. Paint has chemicals in it that can 

leach into the groundwater, et cetera, and cause problems. Others 

of the ones you mention are regulated by the Federal laws, like nuclear materials, et cetera. But there are a set of, unlike some of the 

other ones, like automobiles, for example, there are existing steps 

of State and local laws, especially State laws, aimed specifically at 

the solid waste stream. And it is one of those areas where, as I said 

before, the EPA has delegated the responsibility to the States to 

regulate. 

So MSW is somewhat unique from the other ones. But I do share 

your concern that we need to be very, very careful that this is not 

taken too far and winds up applying to things it should not apply 

to and thereby interferes with interstate commerce. 

Mr. NOTTINGHAM. Mr. Rahall, if I could just add one point that 

I think will be particularly of interest to you. I know where you 

come from, sir. I spent a lot of time with former Secretary Mineta 

when I was at Federal Highways helping improve your good highway network in your beautiful part of the world in West Virginia. 

This is not an academic discussion. We have battled communities 

in the U.S. Courts of Appeals in one large case related to the 

DM&E Railroad. The argument put forward was that the transportation of coal is such a, I’ll paraphrase it, such a public problem 

that coal would move in commerce because we should get rid of 

coal as an energy source. That that new railroad—and we all want 

more rail competition, we spent quality time on that issue together 

in this room just a couple weeks ago—that that new railroad 

should be denied the right to enter the business because it was 

going to handle coal, because there was a supposed problem when 

our Nation’s whole energy policy is premised that we are going to 

have a healthy amount of coal in play. And so thankfully we won 

that case, but it took years, it took thousands of man-hours, hunVerDate 0ct 09 2002 10:22 Feb 07, 2008 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 P:\DOCS\38517 HTRANS1 PsN: JASON
27

dreds of thousands of taxpayer dollars to win that case and it was 

back and forth. 

And so that is just an example. This is not an academic discussion. You will have people thinking up any argument they can to 

just shut down a railroad. It will have competition implications, it 

will chase traffic onto the highways via trucks. And personally I 

am not one that enjoys sitting behind a trash truck on the interstate, as occasionally things unfortunately blow out, and I am pro 

transportation, I am pro truck transportation too, but given the 

choice I sure would rather see it loaded onto a railcar. I think right 

now only 10 percent, we are told by some of the trade associations, 

actually moves by rail. 

Mr. RAHALL. How are these local health and safety concerns addressed now? 

Mr. NOTTINGHAM. Well, it is somewhat—you have heard the 

word ′′patchwork′′ today earlier. It varies. Some of the jurisdictions 

you will hear from today deserve a lot of credit for being the most 

proactive. And they have given this a lot of thought. New Jersey 

in developing its, what I call the 2D regulations, which take into 

consideration that they are not going to zone out of existence just 

because something is unpopular in a community. But reasonable, 

in my personal view, regulations. Police powers. They can petition 

us. They can go to court. And in large measure the courts and the 

STB decisions have been very consistent. You won’t see lots of disagreement—because we are just reading statute. And Commissioner Mulvey mentioned legitimate public policy concerns that he 

has. But we have to be a little careful as decision makers of cases 

to not overemphasize public policy when we are interpreting statute, because the plain words mean something. The words are in 

statute; handling, storage. These are all things that many communities would like to see regulated out of existence. They don’t want 

trash handled or stored or in many cases even to move in any way 

through their community. 

Mr. RAHALL. Yes? 

Mr. BUTTREY. Congressman Rahall, the Chairwoman I think was 

out of the room when the gentleman from Long Island was asking 

one of his questions. And he had asked the question well, how do 

you stop these people, unscrupulous people from engaging in these 

activities that happen to be near a railroad. And if he had asked 

me the question I think I would have suggested to him that some 

local sheriffs deputies with 9mm firearms out there at the gate 

would probably solve that problem until the United States Supreme Court had ruled on it, and they would sit there until they 

did. That would be what would happen in a community if I was 

concerned about it. That is exactly what I would do to stop it until 

the Federal Court—they are raising a Federal issue. It will be 

solved at the Federal level. It will be solved in the Federal Courts, 

the District Courts, the Courts of Appeals, the United States Supreme Court. And until the United States Supreme Court told me 

to remove those security guards, those public security guards that 

is exactly where they would stay until it settled. That is sort of the 

way we handle those things where I come from. 

Mr. MULVEY. There is also voluntary compliance. Most of the 

people who are involved in this, especially the existing railroads, 

28

are good corporate citizens, and they work with communities and 

they try to solve the problem. There is this whole issue of this regulatory gap. And I recall when I was working for the Committee 

we had a problem in Minnesota with a railroad that had a property 

where they were storing containers and they were stacking these 

containers very high. And the children in the area were playing in 

these containers and the local governments could not do anything 

about it because regulating what went on on that property was the 

jurisdiction of the STB. And we don’t really have any laws regarding, rules regarding what they can do on these yards in these 

areas. But finally the community, working with the railroad, solved 

the problem, the containers were taken down, the community was 

satisfied. But it did take some public pressure and it did take voluntary compliance and the railroad eventually coming out as a 

good corporate citizen. And that is what we have to rely upon in 

some of these cases. 

Mr. RAHALL. Thank you, Madam Chair. May I have permission 

to submit additional questions for the record? 

Ms. BROWN. Yes, sir, you may. You know this is a very sensitive 

area and it is a balance, trying to come up with the adequate balance. I guess I have a couple of more questions. 

Can your staff, Mr. Chairman, conduct field inspections of solid 

waste transloading facilities? How frequently do they do that? And 

then any other members who would like to respond to that. 

Mr. NOTTINGHAM. Yes, we can. Yes, we do. We have been doing 

that with increasing frequency in the last year or so. But I don’t 

want to overstate that. We typically do it upon complaint, we hear 

about a problem. And then we also check first with the local and 

State governments to see, hey, is there a need for someone else to 

inspect, have you been there? We recently sent staff, for example, 

to I think it is a community in New Jersey called Hainesport where 

there have been a lot of complaints that the local papers had 

picked up. The internet is a great thing, so we can now do what 

we couldn’t do 30 years ago probably which is quickly keep track 

of every local paper and put in some key words and hopefully keep 

up with some of the controversies, and we do do that. And when 

our staff got to the facility at question in Hainesport it turned out 

the State of New Jersey had been there frequently. There was not 

a problem. Unfortunately, there was a neighbor who didn’t like living next door, and there is probably more to his perspective than 

I could ever offer today. 

But we do do inspections. We can. We are happy to do more. And 

if need be, we will redeploy more staff to do more. And if we have 

to, we will of course come to the Congress to talk about resources, 

but resources are not blocking our ability to inspect at this time. 

Ms. BROWN. Mr. Buttrey, I would have a concern that we want 

the police to go in and lock down the facility. What I would hope 

that we would have in place before that point, we would have an 

organized way to stop a person before they get to that point. I 

mean we should have a procedure in place that we could, a review 

process or working with the local communities. And even though 

we have the greatest respect for everyone here, you know, Mr. Nottingham, how much I respect you, but the point is that just like 

me I am here today, it is important that we have a law in place 

29

that we can follow through a procedure. And of course I am a rail 

lover also. But the point—and I don’t want this waste to be on 

trucks because that is even more dangerous to the community. So 

the question is what is the, I don’t want to say balancing act, but 

what is the best way to do what we need to do and also protect 

the community? 

I don’t know whether or not you have seen the bill that is moving 

forward. And I would like to know how it will affect you. Because 

the key is that we have the law in place. Because we are interchangeable. We are here today, may be gone tomorrow. 

Mr. NOTTINGHAM. Madam Chairman, thank you for the questions. First and foremost, I would urge anyone who cares about this 

area or practices in this area or local residents, states, local communities, take every advantage of the tools we currently have. Go 

to court and ask for an emergency injunction to stop a facility. 

Come to us, that would be my first piece of advice, and ask for an 

emergency declaratory order. We handle those. We turn them 

around quickly. 

Mr. Bishop mentioned that case that was literally unfolding. 

Within days we were basically able to shut that facility down. And 

it will be shut down until we are convinced that it is actually a legitimate rail operation that deserves preemption. And so you’ve got 

the STB, you have got the court system already there, and of 

course you do have the full panoply of police powers. 

But I understand. It is still a difficult situation because someone 

can wake up one day and find out that a business has bought a 

piece of rail line in their community and is talking about bringing 

in a trash transload facility. And it is not put up for referendum, 

there are processes that have to be followed. And it is understandably downright frustrating if you live in those areas. I do think 

some of the proposed—you mentioned the proposed legislation. 

Take a very good look at whether zoning and land use is spelled 

out and addressed in the pending bills and whether honest, clean 

railroads have an opportunity to be protected if there actually is an 

overreach. Those are the two missing things. The Senate bill actually does account for and recognize that they are not talking about 

zoning or giving zoning authority, which is a big improvement, I 

believe. 

Ms. BROWN. Mr. Mulvey, do you want to respond to that? 

Mr. MULVEY. I agree with the Chairman on this issue. We need 

to make sure that the bills are very specific and are narrowly tailored so that they don’t take into account zoning, for example. 

Ms. BROWN. Mr. Shuster.

Mr. SHUSTER. What is your general sense of the awareness level 

out there with State and local governments to the fact that you 

don’t displace all Federal agencies in what you do? Do you generally feel, I am sure you haven’t really measured it, but what is 

your general sense—Mr. Buttrey, you have been on the Board I 

think the longest. What is your sense of that? 

Mr. BUTTREY. Mr. Shuster, I think the awareness level is probably dangerously low. It concerns me how low it is. In fact, as I go 

out around the country occasionally to speak to groups who want 

to know about the Board and how we operate, I find out that this 

whole area of regulation and law is a very esoteric area. And peoVerDate 0ct 09 2002 10:22 Feb 07, 2008 Jkt 000000 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 P:\DOCS\38517 HTRANS1 PsN: JASON
30

ple are unaware of the fact that they have this resource called the 

Surface Transportation Board to bring concerns to. We have a Consumer Advocacy Office that spends their days and probably some 

nights worrying about these concerns and dealing with these concerns that are brought to them. 

The health and safety area is one that I think there happens to 

be, whether we like it or not, and we don’t like it, there happens 

to be some bad actors in this area. There are bad actors all around 

of one kind or another, and this area is not immune from that. 

Which goes to what the Congressman from Long Island was talking 

about; that people who are unscrupulous, who are bad actors will 

go out and start these activities without getting the proper approvals or authority to do so. And unfortunately we don’t find out about 

it, the STB doesn’t find out about it until it shows up in a newspaper article or until somebody makes a phone call or until some 

local county attorney or city attorney or maybe even someone from 

the Attorney General’s office of the State calls up and says what 

in the world is going on here, these people are telling us that you 

authorized these activities, is that true? And unfortunately, and I 

hate to admit this, but unfortunately we don’t know about every 

single one of these activities that are going on because by definition 

if these people are bad actors they are not going to come and get 

the proper approvals. 

Mr. SHUSTER. And sort of on the flip side of that, the general 

population isn’t aware of these legal issues and wouldn’t expect 

them in many cases? 

Mr. BUTTREY. Right. And I don’t want to give you the impression 

that I think all the people who are in this business are bad actors. 

They are obviously not. There are very reputable people in this 

business doing everything exactly right, but unfortunately that is 

not the case in every case. 

Mr. SHUSTER. Again the flip side, somewhere in the court system 

they should be very aware of this, how frequently or how often are 

they coming to you and referring to you an expert legal opinion on 

what you guys do at the Board? Is that happening? Are the courts 

doing that? Or are they just winging it out there and interpreting 

things the wrong way? 

Mr. Mulvey. 

Mr. MULVEY. As I said, we have a number of cases before us. 

And the courts often do defer to the Board. We are thought to have 

the expert opinion and the expert backgrounds on these issues. 

There are a couple of cases now where the courts have had this before them and the Court of Appeals has remanded a case recently 

to the District Court for reconsideration. It is an active area right 

now. And I think, as I said before, it is growing. We haven’t had 

that many cases, but as I pointed out in my testimony, there has 

been a growing number of them and people do contact us and ask 

us what our authority is. Douglas talked about going around the 

country talking about the Board and what the Board does. And I 

can second that, that very often we talk to people who have shippers, rail shippers and don’t know what the Board actually does or 

knows that they have this group available to them for assistance 

if they have a problem with a railroad. It never ceases to amaze 

me that we have not been more successful in getting out the word 

31

that you can come to the Board, you can get help from the Board, 

we can use our good offices to help shippers and others solve their 

problems. 

Mr. SHUSTER. And you used the word ′′often.′′ Does that mean—

it would seem to me common sense from a judge, and I got all 

these cases, many different, I would go to the experts. Is it happening a majority of the time? The courts coming to you? 

Mr. MULVEY. I couldn’t really judge whether it is a majority of 

the time. Maybe, Chip, do you have a better sense of that? 

Mr. NOTTINGHAM. Just to give us sort of a quick overview how 

this looks as far as a litigation caseload perspective, we currently 

have three active cases with us now, actively with us now. One is 

right in Mr. Bishop’s district. And the courts were probably tracking at any given time four, five, six or seven active cases or cases 

that are in some level of activity. One of the most prominent right 

now is the Third Circuit has sent back I believe to the Federal District Court a case involving the New York Susquehanna, looking at 

the New Jersey 2D regs that I spoke of. But we do—it is not unusual for a court to send parties back to us for a finding on what 

is transportation or commerce. But it doesn’t happen every week. 

Mr. SHUSTER. In those three prominent cases have they come to 

you and said give us your expert opinion? 

Mr. NOTTINGHAM. Those I believe all came to us directly. In 

other words, people of course can bring, and we encourage, bring 

a petition for a declaratory order to us directly. But you have the 

courts there as well. And some people do either or both. 

Mr. SHUSTER. Thank you very much. I yield back. 

Ms. BROWN. Mr. Hall. 

Mr. HALL. Thank you, Madam Chair. Mr. Nottingham, I just 

wanted to follow up on your comment to Mr. Bishop that the 

project in his district wouldn’t go forward until the company had 

proven that they were actually a railroad business. And I am curious, I know it is something that is under consideration now and 

that you may not be able to comment directly on it, but what percentage of the time does the company eventually approve that they 

are a railroad business and eventually receive a permit for preemption? 

Mr. NOTTINGHAM. In my limited, about 14-month tenure at the 

Board I believe that in the majority of cases and controversies we 

have actually—through asking questions, through pursuing our 

regulatory oversight, we have actually seen the proposed project 

not go forward, which is a long way of saying you don’t see the controversial trash transload facility opening. How many have actually 

opened after going through our procedures? Let me get back to the 

record when I say——

Mr. HALL. My question is not whether they went forward, because unfortunately many of these businesses decide it is not profitable or they fold and go under, but how many receive the goahead from your agency? 

Mr. NOTTINGHAM. If I could, let me get back to you on the record 

because I want to make sure we get that right. The cases are all 

different. Some people come in and say, oh, I am just building an 

exempt spur, but we find out that they are based in one State 

1,000 miles away and they have never done business in this new 

32

State and the whole spur exemption we presume has some meaning about building out your existing system, not five States over. 

So that is a very active area. But again I want to reiterate that 

nothing I have said today or will say today speaks to the merits 

or demerits of any pending case. Only because I don’t want to 

recuse myself, although that would free up my schedule a lot. 

[Information follows:]

33


38517.008
34

Mr. HALL. Right. In the case of Croton-on-Hudson there is a company that had 32 miles of track 300 miles away from the village 

and nonetheless was supplying for a—entered into a sublease for 

this little spur in the town of Croton-on-Hudson and was claiming 

preemption. It turned out that they didn’t go into business either, 

but it wasn’t because the Transportation Surface Board made a decision to prevent that. It was just the way things worked out, I assume businesswise. But in the meanwhile it cost the village $1.2 

million in legal fees. 

Now, in the Hudson Valley, the 19th District of New York, one 

of the top issues that people are concerned about is property tax. 

And basically what this does is it forces a municipality to raise 

money in really the only way that they can raise it, which is by 

taxing their property owners to pay for legal fees. And in this case 

they are still facing the specter of another company coming in and 

trying to do the same thing and having another million dollars go 

out the door. 

I don’t see this as a case where the police or court options that 

you spoke of before helped because they lost their court case. I 

don’t believe that it is practical to expect a small town police force 

to sit with firearms at the entrance to the property, nor do I think 

that that is how we should resolve these issues in our supposedly 

civilized society. 

So the question really is isn’t this a case in which there needs 

to be something other than harmonizing, which sounds to me like 

a softer version of mitigation. A transfer station, an incinerator of 

solid waste landfill in New York State has to go through an environmental quality review process that makes sure that the environment and the people are protected. And I don’t hear from the existing law, the existing structure, that that exists. 

Mr. NOTTINGHAM. Mr. Hall, please know that we were actively 

monitoring the controversy in Croton-on-Hudson and we stood 

ready to get involved as the facts and case presented itself. I am 

glad that it was able to be resolved in a way to the town’s liking. 

And I do regret, I think anyone would, that so much money would 

have been a trigger in the court costs, and that is a real problem. 

I don’t know if any of the pending bills would stop those kind of 

disputes from arising and the court costs, but that is a problem. 

I will say, you raised property taxes as a concern, and I do think 

somewhere in here, and this Committee is probably the best Committee in the Congress to be able to keep an eye on the big picture, 

there are costs of course. There are costs of course that we all pay 

to handle our trash, and we all create it. We had a case, the New 

England Transrail case you will hear about later, where on the 

record a nonrail trash transload operator stated that it took 4-1/2 

years to get a permit to go into business in Massachusetts. Now, 

there is a cost to that. And so we have got to find a balance here 

because we are going to be paying one way or another, whether it 

is increased truck traffic on the interstate wearing out our bridges, 

an issue of deep concern to this Committee, or whether it is increased cost to the consumer for handling trash. So just the idea 

of keeping all the costs and benefits before us is critical. 

Mr. HALL. I would agree with that. In closing, I would just say 

that I am not opposed to trash being moved by rail. I don’t think 

35

anybody here is. But I do believe that there are some sites that—

I mean the Bensalem testimony that we are going to hear in the 

next panel is one, for instance, where local concerns and local planning obviously run afoul of this particular site. I don’t know what 

percentage of the time that happens. 

But anyway, I thank the Chair for allowing me to ask some questions and yield back. 

Ms. BROWN. Thank you very much, panel. And I know that you 

will get additional questions. And is there any closing remarks that 

you would like to make? 

Mr. NOTTINGHAM. I would just say thank you, Madam Chair, for 

the time today and the thoughtful questions. 

Just quickly, we have heard Bensalem mentioned and you will 

hear about the Bensalem case. That is a case where the Board actually denied the project and stopped it. And so we do always try 

to keep track. There are controversies and then there are typically 

Board, very often Board denials and strong action. Please know 

this Board is very concerned about this issue. We are not here to 

say don’t do anything, or everything is fine, because that is not the 

case. But do please be careful. Look at all the costs and benefits 

of the pending bills. And we stand by. We have not been asked to 

provide any technical assistance on any of the bills. We stand ready 

to do that in a completely straightforward, professional way. And 

any time you ask we will provide that assistance. 

Ms. BROWN. Thank you. And I guess I would like to know how 

the amendment that is moving forward will affect what you all do 

that is going to be attached to my railroad safety bill tomorrow. I 

mean it has been made in order, so I would like to know your opinions. 

Mr. NOTTINGHAM. Because that is moving so quickly, tomorrow, 

I believe you said. 

Ms. BROWN. It is not moving quick enough for me, but okay. 

Mr. NOTTINGHAM. Right. That is why I mentioned that a couple 

of times today, because we may not have the luxury of sending you 

something in U.S. mail. Of course we will deliver anything to you 

that you need. But let me just say real quickly, look at the provisions. It is a very short bill. There is a bridge and then the longest 

section of the bill that references regulation by any local, I believe 

I am paraphrasing here, I have got it in my notebook over behind, 

but any local or State agency. And I read that as including land 

use and zoning. Bring it on. And the real likelihood that you will 

see controversial projects stopped, not because of environmental 

concerns, but of more ′′not in my backyard′′ concerns. And I know 

that is not what the good witnesses you will hear today, because 

these are some of the more thoughtful leaders on this issue, have 

on their mind. 

I worry about the people that are not in the room today, the folks 

we have had to fight in the U.S. Court of Appeals who didn’t want 

coal to move because they felt coal was a nuisance, and all of the 

other disputes that we will have. And please take a good look at 

the Senate compromise language that actually says we are not including zoning and land use here. That language is absent from the 

amendment, the Pallone amendment, that is pending. 

Thank you. 

36

Ms. BROWN. Yes, sir. Would you please get me your comments 

in writing. And Mr. Mulvey, do you want to? 

Mr. MULVEY. I just want to thank you for having us here today. 

I agree with Chairman Nottingham. We need to be very, very careful. The Lautenberg bill does specifically mention zoning. I know 

that there have been changes in the Pallone bill which have been—

we are not talking about not preempting transportation of solid 

waste, simply the handling of it. But I think looking at it carefully, 

making sure that we know what we are doing and we don’t in any 

way impede the flow of commerce, which is not the purpose, it is 

to protect the public health and safety. 

With respect to Mr. Hall’s concern about what the STB has done 

in certain cases recently, at the back of my testimony there are the 

2007 cases that we have that have now been decided. There are 

five of them listed there. And you will see in four cases the project 

did not go forward. And the one case that went forward was an acquisition of one railroad by another, and that was not what we 

were looking into doing. 

Ms. BROWN. I want to thank you again. Mr. Shuster, do you have 

any final remarks? I want to thank you very much for your informative testimony today. And we will be working together as we move 

forward in this process. Thank you very much. 

Panel III, will you please come forward? 

I want to say good morning. It is still morning. We have about 

5 more minutes. Good morning. I am happy to introduce our second 

panel today. Our first witness is the Mayor, Gregory Schmidt, from 

the village of Croton-on-Hudson from the State of New York, is 

that correct? 

Mr. SCHMIDT. Madam Chair, yes, that is correct. I am Dr. Gregory Schmidt, and thank you for having me here today. I am the 

Mayor of the village of Croton-on-Hudson in the State of New York. 

Ms. BROWN. Just one second. Let me finish introducing the other 

panelists and then we will get started. 

Our second witness is Mr. Joseph Pizzo, who is the City Solicitor 

for Bensalem, Pennsylvania. And our third witness is Mayor Kathy 

Chasey, from Mullica Township in New Jersey. And our fourth witness is Brian Foley, the Town Supervisor of Brookhaven, New 

York. And our final witness is from Freehold, New Jersey, Mrs. 

Barbara McMorrow. 

I would like to remind all of the witnesses that you have 5 minutes. However, your entire written statement will appear in the 

record. And if you would like to make any corrections in those pronunciations of those names, you are welcome. The second person, 

you can correct this. I have a different person. 

Mr. PIZZO. Yes. It is Joseph Pizzo. 

Ms. BROWN. Oh, that is right. Someone mentioned that the 

Mayor could not come. 

Mr. PIZZO. That is correct. 

Mr. SHUSTER. Madam Chair, I think that the staff is going to try 

to get a new name tag, so we don’t screw it up. 

Ms. BROWN. Okay. Thank you. 

Mr. PIZZO. My name is only slightly less difficult than Mayor 

DiGirolamo’s. 

Ms. BROWN. Mr. Bishop is going to introduce Mr. Foley first. 

37

TESTIMONY OF THE HON. GREGORY SCHMIDT, MAYOR, VILLAGE OF CROTON-ON-HUDSON, NEW YORK; THE HON. JOSEPH W. PIZZO, CITY SOLICITOR, TOWNSHIP OF BENSALEM, 

PENNSYLVANIA; THE HON. KATHY CHASEY, MAYOR, 

MULLICA TOWNSHIP, NEW JERSEY; THE HON. BRIAN X. 

FOLEY, TOWN SUPERVISOR, BROOKHAVEN, NEW YORK; AND 

THE HON. BARBARA McMORROW, FREEHOLDER, FREEHOLD, 

NEW JERSEY 

Mr. BISHOP. Thank you very much, Madam Chair. And once 

again thank you for letting me participate in this hearing. It is my 

pleasure to welcome to Capitol Hill my friend and my partner and 

government supervisor, Brian Foley, of the town of Brookhaven, 

which is the largest town in the First District of New York. He has 

been an elected official on Long Island for a long time now. He has 

represented the Seventh Legislative District of Suffolk County 

since 1993. 

In 2005, he was elected to be the Supervisor of the town of 

Brookhaven, and since that time he has undertaken a very ambitious and I would say very successful reform agenda to turn around 

a great many serious problems that have existed in the town of 

Brookhaven for a long, long time. He has been a leader on environmental issues and a leader in preserving wetlands and open space. 

And it is with great pleasure that I welcome him here to Capitol 

Hill, and I look forward to his testimony. 

Ms. BROWN. Now we will start with you, Mr. Mayor. 

Mr. SCHMIDT. Hi. I am Dr. Gregory Schmidt. I am the Mayor of 

the village of Croton-on-Hudson in New York. We are a small suburb in the northern part above New York City. We are about 8,200 

people, 4.5 square miles. And we find ourselves besieged with solid 

waste operators masquerading as railroads and abusing Federal 

law to prevent us from protecting the health and safety of our residents. We don’t think that is what Congress had in mind when it 

created the STB. 

You have my testimony, but I am going to give a little brief synopsis of what has been going on in our community. Our situation 

involves a 10-acre parcel of land that is owned by Greentree Realty, whose primary owner belongs to the estate of an associate of the 

Genovese organized crime family. This piece of property has been 

used over many years for various things. But about 10 years ago, 

1,600 feet of rail track was installed in order to load processed 

waste onto railcars which would then be disposed of. Solid waste 

companies are trying to use this 1,600 feet of track to avoid State 

and local regulations, which are the privilege enjoyed by legitimate 

railroad companies. And again we don’t think that is what Congress had in mind when it created the STB. 

About in year 2000, Greentree leased to a company called Metro 

Enviro. It is a private company. They operated a C&D transfer station under special permit from the village. They had an appalling 

compliance record over that time. They exceeded waste limits, they 

falsified records, they accepted unacceptable material at the site, 

and they failed to train their personnel. 

In 2003, the village ordered them to be shut down because of the 

violations of the special permit. In 2005, after 2-1/2 years of litigation at the cost of three-quarters of a million dollars, the State’s 

38

highest court finally upheld our decision and the facility closed. But 

then Greentree leased the property to NIR, Northeast Interchange 

Railway, which is not a railroad, just a waste handler. And they 

claimed that they were a railroad. And again 2-1/2 years of litigation between the village, Greentree and NIR. 

And finally, a New York State Supreme Court judge ruled that 

they couldn’t open up without first obtaining a special permit from 

the village, ruling that the village has the right to impose conditions necessary to prevent harm to the community and to the environment. NIR attempted to evade this by going to the STB and filing notice of exemption. The STB—we challenged this. The STB finally ruled that they wanted more information on this. And we expected to see that application from the STB. It never occurred. 

Instead, what happened was NIR’s attorney called us and told us 

there was a new entity on the block, BSOR, Buffalo Southern Railroad. They had subleased the property and claimed that all village 

authority was exempted by the ICCTA, Interstate Commerce 

Transportation Act, and they were filing a temporary restraining 

order against us in Federal Court. We had never heard of Buffalo 

Southern, and we found out that they were a rail company 300 

miles away in Buffalo. And we were stymied when that Federal 

Court granted a primary injunction. 

So there is confusion out there in the courts as to what is supposed to happen with this. BSOR, Buffalo Southern, threatened 

massive operations of solid waste and other materials under the 

cover of being a railroad. The village would have no regulations 

over this, no enforcement whatsoever. But for business reasons 

that we don’t understand, BSR disappeared from the scene. But the 

village fears are far from over. In negotiating with the owner to 

purchase the property, Greentree, the owner, keeps telling us that 

other railroads are in the wings ready to come in and take over 

this operation. 

I just want to say that the village, the County of Westchester 

and the State of New York have worked tirelessly for decades to 

remove the influence of organized crime from the waste industry, 

and we have been successful. This has resulted in a waste industry 

that is regulated on many different levels by local, county and 

State government. Allowing railroads or railroads masquerading as 

transfer stations to perform the handling of waste would completely undermine the gains we have made. 

Madam Chairman, our little village has spent $1.2 million defending ourselves in court from these solid waste operators who are 

disguised as railroads claiming Federal immunity from our control. 

We don’t think that is what Congress had in mind when it created 

the STB, and we call upon Congress to correct that. Thank you. 

Ms. BROWN. Thank you. 

Mr. Pizzo? 

Mr. PIZZO. Yes, good morning, Congresswoman and Ranking 

Member. My name, again, is Joseph Pizzo. I am the township solicitor for the Township of Bensalem, a community of some 60,000 

people, located in southeast Pennsylvania. We are located along the 

Delaware River, north of Philadelphia. 

I am here on behalf of our mayor, Joseph DiGirolamo. He thanks 

you for the opportunity to address the Committee, and he apoloVerDate 0ct 09 2002 10:22 Feb 07, 2008 Jkt 000000 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 P:\DOCS\38517 HTRANS1 PsN: JASON
39

gizes that he could not be here today when the hearing was rescheduled because of the passing of Congresswoman Davis, for 

whom we express our condolences to you all. His schedule would 

not allow him to be here today. 

His testimony, I believe, summarizes an issue that our township 

has been battling for several years now and goes back over many, 

many years of planning for our Delaware River Waterfront. 

What we have been confronted with for the past several years is 

the possible establishment of a construction demolition transfer facility along our Delaware River Waterfront in violation of numerous State, county and township regulations. We are a typical suburban community, but because of our unique location along the 

Delaware River, we have a rich history, dating back to the early 

days of our country. Names like Wharton, Biddle, Drexel and 

Bickley all lived along our riverfront, and their mansions still exist 

there today. Washington’s troops camped along our Delaware 

Riverfront, and there are monuments to those brave soldiers there 

today. 

Because of our location on the Delaware River, during the 19th 

century and the first half of the 20th century, industry located 

there; it thrived there. But in the latter half of the 20th century, 

almost all of that industry moved out. It is virtually gone now, and 

that area of our riverfront lays fallow. But because of our location 

on the Delaware River, a renaissance is under way. Years of planning have led to a rebirth in this area, one that will give our river 

back to the people of Bensalem. 

As the mayor’s written testimony sets out at length, there have 

been years of study involving our riverfront at the county level, at 

the township level and at the State level. And we have an opportunity today that might not come again for decades, if not centuries. Our leaders have tried to do it right. We sought input from 

businesses, from residents, from civic organizations. Committees 

were formed, they met, they put together plans, they put together 

proposals, one of which I have here, for the Bucks County Waterfront Revitalization Plan. Objectives were set out; means and methods to achieve those objectives were set out. And they are all contained in this plan and in our township open space plan and in our 

township comprehensive plan. 

Once this roadmap was made, the township went about doing 

what it said it was going to do. We created new zoning districts for 

our riverfront. Land was rezoned and acquired. $7 million was invested in the cleanup of contaminated sites along our Delaware 

River that used to house industry, chemical plants and the like. 

Today, there is a plan on board to revitalize 40 acres of our riverfront. It would house 500 units of housing. It would house shops. 

It would house restaurants. It would have a marina. It is the 

linchpin of the redevelopment of the four miles of riverfront that 

we have. 

But let me tell you what is immediately going to be across the 

street from that site: the trash transfer station. 

It is projected, using their numbers that they submitted to the 

township, that up to 2,000 tons of construction and demolition debris a day would be traveling to that site, 7 days a week, 12 hours 

a day, from 6:00 a.m. to 6:00 p.m. How would it get there? By 

40

truck. Twenty six trucks per hour would be coming to that site, 

each carrying up to 10 tons of construction and demolition debris. 

The loading of that debris, once it is dumped at that site off of 

those trucks, would occur for 16 1/2 hours a day, from 4:00 a.m. 

in the morning until 8:30 in the evening. 

By the way, if there are not enough railcars available or the 

dump that they intend to take it to cannot accommodate them, 

they are going to carry some of that waste back out of there by 

truck, up to 200 tons per day. 

That is what is going to be across the street from our river, less 

than 1,000 feet from it. 

These trucks have only one way in and one way out of this facility, a two-lane road, one way in each direction, called ′′State Road,′′ a small State road that in no way can handle this kind of traffic. 

This facility has been turned down by the township. It has been 

turned down by our State Department of Environmental Protection 

for siting reasons, for siting reasons for a trash facility. It does not 

comply with our local zoning. It does not comply with our local land 

use. It does not comply with our vision for our township. It does 

not comply with State siting regulations. It does not fit at all. It 

just does not fit. 

It has been the subject of litigation at the zoning hearing board 

level, at our county common pleas court level, at our commonwealth appellate court level, and at our State Environmental Hearing Board. It runs completely contrary to everything that we have 

planned for this part of our township. 

We thought we had them on the run until this June. All of a sudden, the landscape changed, and all of our plans, if you will pardon 

the pun, were about to be derailed. A company called JP Rail, 

doing business as Southern Railroad Company of New Jersey, filed 

a verified Notice of Exemption with the Surface Transportation 

Board. We did not know what it was, but we knew it did not sound 

good, and we were right. In a nutshell, we were told that Southern 

Railroad was going to do an end-run around years and years of 

planning and numerous, numerous State, local and county regulations. We were told they could establish this facility, that all they 

had to say was, ′′We are a railroad, and we want to do it.′′ If they 

could convince the STB of those two things, they could do it free 

and clear of any of our local land-use or zoning plans. If STB 

agreed, they would be allowed to locate and operate this facility, 

and we would be powerless to stop them or to even regulate any 

aspect of their regulation. 

I have heard talk today about health and safety police powers. 

Please, they are important, but it is of little solace to the people 

of our community if we have to tell them that, as to those 26 trash 

trucks an hour coming by your front doors into this facility, we cannot stop that, but rest assured, they are going to comply—they are 

going to have enough sprinklers in that building when they are 

dumping that trash in that building. Police powers are important, 

but the siting regulations, the land-use regulations are equally as 

important. 

As to the discussion about getting trucks off the street, again, 

these trucks are going to be coming to our facility from the fivecounty Philadelphia area, again, according to the hauler, using all 

41

of the interstate highways to get to our little corner of the world 

to then put it on railcars. 

Ms. BROWN. Excuse me. Your time is up. We are going to have 

a question-and-answer period where you will be able to elaborate 

longer. 

Mr. PIZZO. Thank you. 

Ms. BROWN. Did you want to make a closing statement? 

Mr. PIZZO. If I could——

Ms. BROWN. Yes, sir. 

Mr. PIZZO. —and I appreciate the opportunity. 

The fate of our community is, to some extent, in the hands of this 

austere body. Years of planning, years of thought, millions of dollars of investment, thousands of hours of planning and caring will 

have been spent for nothing if this facility can just, willy-nilly, on 

a moment’s notice, come in and undo everything that we have 

done. 

On behalf of the citizens who I represent and the community I 

am proud to call home, thank you for your consideration of our 

plight. 

Ms. BROWN. Thank you. 

Mr. PIZZO. Thank you. 

Ms. BROWN. Ms. Chasey? 

Ms. CHASEY. Thank you very much. 

I wish to thank Chairwoman Corrine Brown and the Subcommittee for allowing this hearing in order to document the need 

for a legislative fix to eliminate the 11-year loophole in the ICCTA 

regulations that allow the operations of unregulated solid-waste facilities. 

Mullica Township is 56 square miles, and we are located in the 

heart of the 1.1 million acres of the Pinelands National Preserve. 

There are 2,200 existing homes with 6,000 residents. We have no 

public sewer or water, thus are relying fully on personal wells and 

septic systems. Our tax ratables are compromised of 98 percent residential and 2 percent commercial. 

Although we have 10 miles of State highway Route 30 running 

through Mullica, we have no industrial parks, shopping centers, 

banks or even a strip mall. We also have, running through our 

town, 10 miles of east-west railroad track with a LICA siding but 

no train stop. The track is owned by New Jersey Transit, a passenger line with a company by the name of JP Rail that leases the 

trackage rights through there. 

As a member of the Atlantic County Solid Waste Advisory Committee, I am familiar with the procedure that the owner of a solidwaste company must follow in order to start up or to expand their 

operation, including the involvement of the State DEP, the local 

town and the County Freeholder Board. In Mullica’s case, the 

starting point and added layer of the Pinelands would be an integral part of the procedure. 

When we were first made aware of the transrail transfer station 

proposal, I felt safe in my knowledge of the procedures in place. 

Imagine my shock in finding out there exists Federally exempted 

solid-waste operations whose only criteria that need to be met is 

that they are located next to or near a set of railroad tracks—no 

applications, no public involvement, no limits in regard to the numVerDate 0ct 09 2002 10:22 Feb 07, 2008 Jkt 000000 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 P:\DOCS\38517 HTRANS1 PsN: JASON
42

ber of trucks, tonnage or materials, including possible hazardous 

waste. These are 7-days-a-week, 365-days-a-year operations with 

the ability to run 24 hours a day without the obligations to the districts they reside in and without the normal and accepted permitting process it would afford their neighbors. 

As I learned about these sites and the laws that govern them, 

I realized quickly that this is not a local issue but a national one. 

If it could happen in my town, it can and does occur anywhere. 

In Mullica’s case, the railroad company was to lease the property for $1 per year from the owner. The owner, not so ironically, is a 

notorious South Jersey waste hauler. This waste hauler has managed, over the past 4 1/2 years, to build up over $1 million in unpaid fines, assessed by the DEP, the County Health Department 

and the neighboring town where his trash business was operating. 

He pled guilty to two counts of illegal dumping in Mullica and was 

find $199,000. According to DEP documents, he has frequently 

failed to comply with the conditions of his solid-waste permit. The 

DEP finally denied his permit renewal application, terminated his 

existing permit and revoked his authority to operate his solid-waste 

facility in 2005, but he retains his hauling license. This is the same 

individual who is to operate the Mullica transrail facility under two 

newly formed companies called Elwood Brokerage and Elwood 

Transloading, LLC. 

Mullica’s journey through the process of fighting our proposed 

transrail transfer station was different from any other towns up to 

that point. We were very lucky. Because we are 100 percent Pinelands, we had the full weight of the Pinelands Commission and the 

State’s Attorney General’s Office to deal with the legal strategy, 

along with our town solicitor and the Atlantic County legal staff. 

The fight took a great emotional toll on me, on our governing body 

and on the residents of our town, who, of course, had to bear the 

financial impact of this battle. I was personally named in the lawsuit the railroad company filed in Federal court regarding intergovernmental plans and the mayor’s efforts to frustrate and to block 

the project. 

Our town has a successful story for this individual property. The 

railroad withdrew their complaint this year on March 26, 2007, and 

the judge signed a consent order permanently banning the construction of a solid-waste facility on this site. I made a promise 

that I would continue to do what I could to protect other towns 

from going through the horrors of these unregulated sites. 

Those of us seeking relief in the form of regulation, where these 

exempted operations are concerned, are not NIMBYs. We are not 

saying, ′′We do not want you in our town, so go to the next one.′′

There are laws in place now that prevent that from happening with 

regulated sites. This is not about the railroad or the trucking industry. It is about a normally much-regulated industry and what 

happens when those regulations are not enforced consistently. 

With respect to solid waste, we are asking that laws be distributed fairly and without prejudice, that the solid-waste industry, as 

a whole, be required to operate in an environmentally responsible 

manner under State and local control. When it comes to a private 

industry that operates on a national level, there is only one practical solution. Anyone receiving and transporting solid waste needs 

43

to be regulated under the same set of laws. Although there have 

been a few encouraging court rulings regarding this exemption recently, they are expensive to achieve, site-specific and always open 

to appeal. The number of towns that are grappling with this problem are growing daily, and the protests of their residents are becoming louder. 

I am convinced that the only solution is a legislative one. We 

need clear and concise rules to implement, not a constantly changing interpretation of what is unreasonable interference and what is 

not. Please give us the tools we need to ensure the health and safety of our constituents and the ability to regulate solid-waste operations uniformly on a State and local level. 

Thank you. 

Ms. BROWN. Mr. Foley? 

Mr. FOLEY. Thank you. Good afternoon, Chairwoman Brown, 

Ranking Member Shuster and honorable Members of the Committee. My name is Brian Foley. I am the elected supervisor of the 

Town of Brookhaven in our State of New York. 

Brookhaven is a town with approximately 484,000 residents located in Central Long Island. In my capacity as supervisor, I am 

on the front lines of land-use regulation and enforcement. Landuse, zoning and environmental controls are critical tools of preserving the local environment and the quality of life for the taxpayers of our town. 

I appreciate the Committee’s allowing me to speak on the important topic of railroad preemption and its effect on local municipalities. The purpose of my testimony today is to speak in favor of the 

legislation that has been proposed to close the loophole that has 

been used to try and avoid State and local controls for the siting 

of waste facilities at railyards. I will supply the Committee will 

local newspaper accounts that describe in detail what has come to 

pass in the Town of Brookhaven. 

The area in question is a 28-acre site within the township. And 

in July of 2007, prior to the owner of the property invoking the 

shield of railroad preemption, this was an undeveloped, 28-acre 

parcel of land. Now, 18 acres of this site have been clearcut, and 

newspaper accounts indicate that over 42,000 cubic feet of sand 

were mined without any environmental review under the National 

Environmental Policy Act or New York’s State Environmental 

Quality Review Act. 

That is correct, ladies and gentlemen. There was no level of government, be it Federal, State or local, that had given any environmental approval for this work. The owners represented that they 

were exempt from local regulations and subject solely to the exclusive jurisdiction of the Federal Surface Transportation Board. And 

because of the uncertainty that currently exists in this area of Federal law, those representations were initially deemed to be credible. 

Yet, it was recently learned that they had never submitted their 

actions to the jurisdiction of the Surface Transportation Board. 

These same owners and individuals, therefore, have not filed the 

appropriate procedures to qualify for Federal preemption. 

However, the current climate of uncertainty has emboldened 

scrupulous operators and has led to the situation that the Town of 

Brookhaven now confronts. This uncertainty about the scope of 

44

Federal presumption has allowed alleged railroad operators to 

claim that Federal statute preempts all State and local laws that 

might apply to the construction rail facilities, no matter how attenuated they are from actual railroad operations. 

On Long Island, the ′′railroad′′ has traditionally meant our commuter railroad. We never envisioned that a company that adjoins 

a railroad and constructs a few hundred feet of railroad track could 

change itself into a waste-disposal facility that was free from all 

Federal, State and local environmental review and permitting requirements. 

These materials from a waste-disposal facility contain contaminants that can be harmful to the environment and to the public 

health. For that reason, State and local governments have adopted 

comprehensive regulations that govern the way waste can be processed, and they often impose ongoing monitoring requirements to 

ensure that the waste-disposal process does not cause harm to our 

environment or to the public’s health. 

Solid waste has traditionally been in the domain of State and 

local governments. While Congress has adopted a legal framework 

for regulating solid waste, the Federal Government has never assumed a large role in this area, and as a result, there are very few 

Federal regulations that deal with solid-waste transfer stations. 

Regulation in this area, rather, has been left to State and local governments, which have very ably filled this regulatory gap. 

For example, in the Town of Brookhaven, we have regulations 

that govern, among other things, the zoning and site plans for 

waste-transfer facilities in an attempt to ensure that they are sited 

in the appropriate places and that adequate mitigation measures 

are taken. 

Our role is also complemented by the New York State Department of Environmental Conservation Chapter 360 regulations that 

review the environmental impacts of the operation of a transfer 

station. In the case of waste facilities that invoke railroad preemption, they claim to be governed by the Surface Transportation 

Board, a Federal agency that does not have any type of permit application or site selection process. Additionally, this board does not 

have the ability to conduct a meaningful environmental or health 

impact review or to ensure compliance with engineering or design 

standards. As I understand it, this board’s staff is limited to no 

more than 150 employees by appropriation, and only a small number of these employees are responsible for conducting environmental reviews nationwide. 

So what has resulted? What has resulted is a regulatory gap that 

I do not believe was ever really intended, a gap that creates a situation where no level of government is policing the activities of 

these facilities that, by their very nature, pose significant risks to 

our environment. Given these risks, immediate and decisive actions 

are warranted by Congress. 

So, in conclusion, given the scarce resources of the Federal Government in this area and given the limited reach of Federal laws 

involving waste-transfer facilities, there must be a role for State 

and local governments in the area of regulating waste-transfer facilities. In almost all of the cases that I have seen or heard, including the situation that has evolved in my town, the rail activities 

45

are merely secondary, or incidental, to the primary business, which 

is the processing and the storage of solid waste. 

For that reason, I would respectfully urge you to adopt an 

amendment, the Interstate Commerce Commission Termination 

Act, to provide that rail facilities that process solid waste are not 

entitled to Federal preemption. 

Thank you. 

Ms. MCMORROW. Madam Chairwoman and Members of the Subcommittee, thank you for the opportunity to speak on behalf of the 

residents of Monmouth County, New Jersey. I am Barbara 

McMorrow, an elected county freeholder. 

This spring, Ashland Railroad Company in Monmouth County 

applied to the Surface Transportation Board for an exemption to 

operate a solid-waste transfer station on previously abandoned railroad tracks adjacent to a stream and just a stone’s throw from 

farms and homes. That stream, which parallels the train tracks, is 

a tributary of the Manasquan River, part of the watershed that 

comprises the drinking water for thousands of people. I was 

shocked to learn that a loophole in the law exists to allow railroad 

companies to operate solid-waste transfer stations without any regulation by State or local government. 

I joined Congressman Pallone, DEP Commissioner Lisa Jackson 

and State Senator Ellen Karcher in April to protest the application 

to operate this unregulated solid-waste transfer station and offered 

my support as a county elected official in this fight to protect our 

residents and our environment. 

I have closely followed the application filed by Ashland Railroad 

Company, learning as much as I could from our county solid-waste 

expert, Larry Zaayenga, and a great local citizen advocacy group, 

the Sludge Busters. We were together at a meeting in August when 

we learned that the Surface Transportation Board had dismissed 

the application of the Ashland Railroad Company to operate a 

solid-waste transfer station in Freehold Township. 

This temporary respite does not mean that our fight is over, because the Surface Transportation Board rejected without prejudice 

the application of Ashland Railroad. That means that Ashland 

Railroad can reapply using the lessons learned from their rejected 

application, can gain an exemption and can operate an unregulated 

solid-waste transfer station. 

Unlike our State law that requires the counties to include any 

solid-waste facility in its county solid-waste plan before any application is accepted by the New Jersey DEP, there is nothing in the 

law that would require the Surface Transportation Board to even 

notify the township or the county if Ashland Railroad resubmits an 

application. That means if any of us blink who are advocates for 

the people and the environment in Monmouth County, the opportunity to oppose this plan is missed. 

For your information, a regulated solid-waste station does exist 

without any problems just across the road from the proposed Ashland site. 

It appears that the Surface Transportation Board does not have 

the interest of our residents foremost. In July, the Surface Transportation Board ruled that railroads that load, unload, handle and 

store solid waste do not have to be regulated by State or local agenVerDate 0ct 09 2002 10:22 Feb 07, 2008 Jkt 000000 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 P:\DOCS\38517 HTRANS1 PsN: JASON
46

cies. I believe that all solid waste must be regulated at the State 

and local levels, regardless of its proximity to railroad tracks. 

New Jersey has suffered greatly from this loophole. We have had 

solid-waste piles next to railroad tracks that have polluted the air, 

ground and water. These unregulated piles have grown so high 

that they have caused power blackouts. They emit arsenic and mercury, two dangerous chemicals that are otherwise strictly regulated 

under the law. These stations operate in open air with no building, 

so the chemicals and particulates are airborne, wreaking more 

havoc on residents and on the environment. 

Furthermore, property values surrounding an unregulated solidwaste transfer station plummet, while hundreds of trucks that will 

travel to and from these unregulated waste stations will cause additional pollution, hazards to the citizenry and damage to roads. 

New Jersey law requires all solid-waste transfer stations to be in 

closed buildings. If hazardous waste is detected, the buildings have 

to utilize negative airflow to protect the environment and citizens. 

Additionally, New Jersey law only allows solid waste to be at a 

transfer station for a maximum of 24 hours. Unregulated solidwaste transfer stations, ones that are granted an exemption under 

the loophole in the law, can leave solid waste as long as they 

choose, allowing significant damage to the environment. 

Under the Interstate Commerce Commission Termination Act of 

1995, the Surface Transportation Board 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. I believe that 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 or that have a business connection to a rail company. We 

cannot allow hazardous waste to be unregulated due to a loophole 

in Federal law. 

How many Members of this Subcommittee would want to wake 

up one morning and find that they are living near an unregulated 

solid-waste transfer station? That could happen because of the 

loophole in this law. This is why I am before you today, to urge the 

passage of the Clean Railroads Act of 2007 and to preserve the integrity of the environment for our future generations. 

Thank you for allowing me this opportunity to address this Committee. 

Ms. BROWN. Thank you all for your testimony. 

Mr. Shuster? 

Mr. SHUSTER. Thank you, Madam Chair. 

I think I said this earlier, I said it frequently, that I am not an 

attorney. But the attorneys tell me we need to make real certain 

that—most of you or, I think, all of you may have something pending before the STB or before the courts. Just be aware of the Pillsbury Doctrine, which I did not know about before today. 

The Pillsbury Doctrine says to subject an administrator to a 

search and an examination as to how and why you reached a decision in a case still pending before him and to criticize him for 

reaching the wrong decision sacrifices the appearance of impartiality. 

47

So be very careful, I think, of what you say, and I am going to 

be very careful of what I ask. I would not want to jeopardize anybody’s case. 

I guess just a general question to all of you is—and I guess Mr. 

Pizzo is the only one whom I would guess would not want that 

transfer station there. 

Because you have a development going on. So for you guys, it is 

not a question of, ′′We want it to be regulated and properly administered.′′ Yours is, ′′It screws up our whole economic development 

plan and causes serious problems to the development.′′ Is that correct? 

Mr. PIZZO. That is absolutely correct. As some of the other members of the panel have said, this is not about the railroads. In our 

community in particular, we have had the Northeast Corridor, the 

range from Philadelphia to New York, since 1839. There are four 

or five sets of tracks that run right smack dab through the heart 

of our town. They have been there for 150 to 175 years. We have 

a good relationship with the railroads. Cornwall Heights station 

was in our community. We fought to keep an Amtrak stop there. 

We have one of the largest parking rights in the regions. 

This is not animus between the townships and the railroads. 

This is, we have a plan. We have laid out, as the law requires us 

to do, a zoning plan for the township, a comprehensive plan for the 

township. We have gone the extra step for this region, which, 

again, has laid barren and fallow and underused for all of these 

years. We said, this is what we are going to do to fix it and to clean 

up the contamination and to give it back to our people. 

Then literally in the middle of the night, something gets filed 

with the STB, and years of planning are all for naught, because 

these guys can operate a trash-transfer station there because they 

are affiliated with or purport to be a railroad, period. 

Mr. SHUSTER. Would any of the others like to comment? 

Would you allow it, Mr. Schmidt, in your case, if they were operating properly or——

Mr. SCHMIDT. My community is also one of those communities 

that we have had a C&D transfer station in our community. 

Mr. SHUSTER. I am sorry. You have? 

Mr. SCHMIDT. We had one. We shut it down. I was elected because I fought to get that place closed down, and the reason why 

we are trying to get that closed down and end it is—let me paint 

you a picture of our community. 

We are Croton, and we are on the Hudson River. The Hudson 

River is a heritage river. Our entire western boundary is the Metro 

North train line that runs along the riverfront from New York City 

to Albany. Within those three miles of riverfront, we have a Superfund site that is an old county landfill that was operating for probably 40-plus years that is a Superfund site. It was Band-Aided; 

they put a cap over it to keep the rain from running through it, 

but it leaches out into the Hudson River all the time. 

We have Metro North, the railroad. They also have a railyard 

there. That is where they service a lot of their equipment. We already have that relationship with the railroad, in the sense that we 

know that they do certain operations out there that we have no 

control over, okay? They run diesel engines all night long because 

48

they have to keep them running in the wintertime. It is noisy in 

our community because of that. You can smell the diesel fumes 

throughout our community. We asked them politely if they can 

shut those things down whenever they can. They do the best they 

can to shut those down. 

They are in the process of a major capital improvement out 

there. They are rebuilding their entire facility out there. As a courtesy, they came to us and talked to us about what was going on 

out there. I understand we have no control of zoning rules and regulations, as to what they are doing out there. 

We also have a CSX switching yard along that riverfront. We already have commodities coming through our communities. Municipal solid waste in sealed cars that routinely come there are parked 

there for days before they are taken out. 

Completing the picture on our river and just up the road is Indian Point, a nuclear power plant, and I am sure you have heard 

controversy about that. Then just a little bit beyond that is Charles 

Point, the county incinerator. 

My little community, again, is 4.5 square miles. I feel like we 

have done our share. We have had these facilities in our backyard. 

That is not the only reason we want this shut down, but it is a part 

of the reason. I was elected to really protect my residents, and 

quality of life is what it is all about. 

We have a waste-transfer facility that operates in an adjacent 

community. It operates within the law and all that kind of stuff. 

The one that we had in our community operated by special permit. 

Even with those rules and regulations, even with their making millions of dollars a year, they still violated the permit because they 

accepted material that they were not supposed to accept at that facility. 

And anyone who thinks that C&D is an innocuous material has 

never looked in a dumpster that has come from a construction site. 

You have no idea what is in there, but we do know there is asbestos in there, because any building that is torn down that was built 

before the 1950s has asbestos in it. It has lead in it. There is possible mercury in it. Tires get in there. Refrigerators get in there. 

Compressors get in there, car parts, whatever. This has to be regulated. 

Mr. SHUSTER. My time has expired, so I would just like to—all 

you can give me is a ′′yes′′ or ′′no,′′ because the Chairwoman is 

going to move on. 

This is ′′yes′′ or ′′no.′′ If they operate according to the laws of the 

State, are you willing to leave them there, ′′yes′′ or ′′no′′? 

Ms. CHASEY. If they operate as a regular solid-waste facility? 

Yes, I believe that is all we are asking for. 

Mr. SHUSTER. I am sure Mr. Bishop is going to ask you a question that you will be able to expound on, but just for me, ′′yes′′ or 

′′no.′′ If they operate properly, you do not want them there, ′′yes′′

or ′′no′′? 

Mr. FOLEY. It is really not a ′′yes′′ or ′′no′′ answer. They have to 

abide by all appropriate local, county and State regulations. 

Mr. SHUSTER. Right. 

Mr. FOLEY. If they so do and if their siting in the appropriate location passes muster with all of the local regulations, as well as the 

49

State regulations, and if they go through that process—that is 

what we are saying. Go through the process, and if it passes muster through that process, they can then be sited at the appropriate 

place. 

Mr. SHUSTER. All right. 

Ms. MCMORROW. At the location which I referred the Ashland 

Railroad Company, no, absolutely not. Other ones would have to be 

decided on a case-by-case basis if they were regulated. 

Mr. SHUSTER. Thank you very much. 

Ms. BROWN. Mr. Bishop? 

Mr. BISHOP. Thank you very much, Madam Chair. 

Supervisor Foley, I have a question for you. But first, let me 

thank you, on behalf of the constituents we both represent, for how 

quickly and how forcefully you have responded to the situation that 

exists in Yaphank. 

My question is this: Under normal circumstances, if a project 

were taking place in the Town of Brookhaven that was going to encompass some 18 to 20 acres—and pick the project: a subdivision, 

a senior citizens’ facility—what kinds of environmental and site 

plan reviews would that project be subjected to? 

Mr. FOLEY. Thank you for the question, Congressman. I would 

also like to thank you for quickly interceding on our behalf with 

the Surface Transportation Board. 

Certainly, in our township, we spoke earlier about our time in office and that we are ones to try to encourage businesses to move 

into our town and the like, by virtue of the fact that we have almost half-a-million people. There are a number of, let’s say, solidwaste issues and so forth. We are not saying no to railroads, nor 

are we saying no to these facilities. What we are saying is they 

have to go through the process. 

To answer your question more directly, if there is any large subdivision proposal for something in the neighborhood of 28 to 30 

acres, it goes through a whole regulatory review process. There is 

not an automatic ′′no′′ to it, nor is there an automatic ′′yes′′ to it. 

It is reviewed at staff level, both in the Planning Department as 

well as in our Building Department. It is reviewed by our Law Department, as well. Once it goes through that review process, it requires any kinds of variances. Then it would come before our Zoning Board of Appeals. Or, if, in fact, there is a change of zone that 

needs to be accomplished or at least attempted, then it comes before the town board. The town board has the power of reserve solely to itself for change of zones. 

So there is an involved process that one would undertake in 

order for, let’s say, a 28- to 30-acre piece of land to be used, whether for business purposes or for residential purposes. There is a lot 

of oversight, a lot of review. I would not say that it is cumbersome. 

I think it is important, because, as was mentioned earlier, it is part 

and parcel of our responsibilities locally to ensure the quality of life 

for those particular communities. 

So I think that gives you a bit of an overview of some of the processes that would take place in our township and of the different departments that would review it. It does not mention the fact that 

the county health department would also be involved with this. 

50

But even with all of that said and given where we live, there are 

many businesses and residential proposals that still come our way. 

The regulations are there not necessarily to say ′′no′′ but more to 

have, let’s say, transparency brought to the process and that, 

through transparency, there can be accountability, which is completely missing from the current situation as it relates to these 

Federal preemption laws. 

Mr. BISHOP. I do not want to put words in your mouth, but what 

I hear you saying is, if there were a local role, that that local role 

would be undertaken in good faith with the recognition of the responsibilities that townships have for the disposal of their waste. 

Mr. Nottingham, in his testimony, he was saying that his fear 

was that, if there were a local role, we would be engaged in 

NIMBYism, and the local role would simply be an opportunity for 

the local government to say ′′no.′′ You are saying that is not the 

case. 

Mr. FOLEY. That is definitely not the case. As a matter of fact, 

there is closer scrutiny of our zoning codes and the like when there 

are regulations regarding waste-transfer facilities. We realize that, 

you know, given the size of our township and given that we live 

on an island, that these are realities. But what we are saying is 

go through the process, go through the State process, go through 

the local process. If, in fact, a municipality would say ′′no′′ when 

regulations say otherwise, then we would be brought to court. 

I would like to, at some point, get to the point about this rather 

cavalier attitude of some, saying local governments can go to court 

to challenge these railroads.You know, with a municipality of my 

size, which is larger than any upstate city, we have the financial 

wherewithal to take these companies to court, but small municipalities in this country do not. And it is a rather intimidating situation of David versus Goliath. 

To answer your question directly, it is not an immediate ′′no.′′ It 

goes through the regulatory process. If it passes muster through 

that process, then the answer will be ′′yes.′′ If it does not pass muster through that regulatory process, which is very transparent and 

open for all to see and to scrutinize, then the answer would be ′′no.′′ Mr. BISHOP. Okay. Thank you very much. 

Thank you, Madam Chair. 

Ms. BROWN. Thank you. 

Mr. LoBiondo? 

Mr. LOBIONDO. Thank you. 

I just have one question for Mayor Chasey: What did it cost 

Mullica for this? 

Ms. CHASEY. Mullica spent over $100,000. But that would have 

been close to $1 million if we did not have the State Attorney General’s Office, legal counsel from the Pinelands Commission—and 

who else was involved? 

Mr. LOBIONDO. What is your population again? 

Ms. CHASEY. Our population is 6,000 people. 

Mr. LOBIONDO. Pretty small. 

Thank you. 

Ms. BROWN. Mayor Schmidt, who currently handles the solid 

waste coming out of your village? Do you have a preference for the 

transportation mode of train or trucks? 

51

Mr. SCHMIDT. The facility in our community was a C&D transfer 

station. You are asking about our waste that is generated in our 

community——

Ms. BROWN. Yes, sir. 

Mr. SCHMIDT. —and how that is handled? 

Ms. BROWN. Yes. 

Mr. SCHMIDT. Throughout the entire County of Westchester, 

which we are a part of, all of our municipal solid waste is trucked 

to the county facility up at Charles Point, which is the county incinerator. That is where all municipal solid waste generated in the 

county is taken to. Some C&D also goes up there. 

Our issue, really, is with the C&D transfer station that existed 

within our community that a railroad is trying to come in and take 

over and to operate under the guise of being a railroad. That is 

what our issue is with the C&D transfer facility. Again, yes, all of 

the material is being trucked into this facility. It travels through 

our village streets to get to this facility, and then it is hauled out 

by railcars. That is how it was operating before. 

Ms. BROWN. In your testimony, you stated that the Buffalo 

Southern Railroad cancelled its lease before it could begin the operation of hauling solid waste out of your village due to the problems 

faced by previous rail carriers attempting to start operation in the 

village. 

Why do you think that the interests are still there to try to use 

this facility? 

Mr. SCHMIDT. This is a very lucrative business, and that is one 

of my compelling arguments in here, that the county did an incredible job of getting the waste industry on a level playing field to 

make sure that everybody was playing at the same level so that it 

was a competitive market. If you allow somebody to come in under 

the guise of operating as a railroad to operate a facility with no 

local rules and regulations and not having them follow all of those 

steps to get there, they are going to undermine all of the other legitimate operators out there. That, I believe, is the most compelling 

reason for making sure that they have to play on the same field 

as everybody else. 

As far as I am concerned, the collection, sorting, processing of 

waste is a local, county and State responsibility. Once it is determined that that remaining waste is to be disposed of, at that point, 

it could be loaded on railcars and shipped out. Up until that point, 

it is a local responsibility. We have the ability to watch that. The 

county has the ability to watch that, and the State has the ability 

to watch that. The Federal Government does not have the ability 

to be there and to watch that. 

That is why we shut down the facility that was operating there. 

We gave them every opportunity. We gave them extension after extension when their permit expired. They kept violating and violating. 

It is a very lucrative business, and that is why they want to be 

in this business. It is worth millions. And the wrong people are 

using this loophole, and those are the people who use loopholes, the 

wrong people, to get in there. That is why we need to close this. 

Ms. BROWN. Mr. Pizzo, did your area attempt to block the 

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52

pany of New Jersey that allowed them to develop the transloading 

facilities? What was the outcome of the effort? 

Mr. PIZZO. We were preparing to file with the STB when the 

STB, as the Chairman indicated during his testimony, of its own 

accord, rejected the petition for various deficiencies. They were rejected by the STB without prejudice to refile. 

So, much like in the case of one of the other panelists, we are 

essentially holding our breath, waiting for the day when that application is cleaned up, the T’s are crossed and the I’s are dotted, and 

it is refiled with the STB. 

Ms. BROWN. Has the Southern Railroad Company of New Jersey 

attempted to work with the community in addressing your concerns? What has been the outcome of these efforts? 

Mr. PIZZO. I am glad you asked that question, particularly because, in response to Mr. Shuster’s question, I did not want it to 

sound as though our township was taking a ′′not in our backyard′′

position. 

We have miles and miles of rail track in our township. We have 

an ample amount of heavily, industrially zoned property. If this 

sort of use came to one of those sites that were zoned for it, it 

would certainly be treated just like any other properly zoned and 

appropriately sited use. 

In this case, this land is not zoned for industry. It does not meet 

our township’s siting requirements. It does not meet State siting 

requirements because of its proximity to a school. 

We had been dealing for 2 years with a company called HJH. 

They had come into the township as a trash operator, wanting to 

site a C&D facility there, and they were told, ′′It does not fit. This 

is not the site for it. It is not zoned for it. The land use does not 

work.′′ Our State Department of Environmental Protection said the 

same thing: ′′under State siting regulations for a trash facility, this 

does not work at this location. You are going to have to fix it. You 

are going to have to move it, because you cannot put it there.′′ They then went out, and our understanding is, based on the documents that were filed with the STB, they have made some arrangement between HJH and Southern Rail for Southern Rail, I 

guess, to buy the property and lease it back to the trash hauler—

or there is some other arrangement—and thereby doing the end 

run around us. Two years of land-use planning, zoning and all of 

the legal requirements were met. And when they kept hitting a 

roadblock each way along the way because it did not work at that 

site, they then went, found a rail carrier and said, ′′Hey, let’s do 

it this way. It is quick, it is fast, it is easy, and we are going to 

be in.′′ Ms. BROWN. But did you all try to block it? 

Mr. PIZZO. Again——

Ms. BROWN. You did not know about it? 

Mr. PIZZO. This was filed in June by a company we had never 

heard of. We had never heard of Southern Rail. 

Ms. BROWN. I am trying to find the procedure here. Did you get 

a notice that this was going on? 

Mr. PIZZO. No. 

Ms. BROWN. No notice to the community. So you were in no position to block it, because you did not know anything about it. 

53

Mr. PIZZO. We, fortunately, were notified by people here in Washington, D.C. They came to us and said, ′′By the way, do you know 

that this was filed for a piece of property in your township?′′ we 

otherwise had no idea. Many of us had no idea what the Surface 

Transportation Board was or what it did or how it functioned, because, in our little corner of the world, it really never came into 

play. The railroads and the township got along fine. 

Ms. BROWN. Okay. So you did not try to block it. I am trying to 

find——

Mr. PIZZO. No. We were preparing to. We were given notice that 

it was filed back in June. We were calling in the troops. We were 

ready to throw everything but the kitchen sink at it. The STB 

turned around and rejected the application——

Ms. BROWN. Okay. 

Mr. PIZZO. —because, on its face, it did not comply, I guess, with 

STB standards. 

Ms. BROWN. So, in this case, the system worked? 

Mr. PIZZO. The system worked, but my understanding, Congresswoman—and it is only my understanding—is that they were 

bounced on technicalities, that their paperwork did not meet all of 

the requirements. It did not have the mile markers for the train 

tracks. It did not have a site map showing, you know, in different 

distances what was where. But they were not told, ′′Oh, no, you 

cannot go there because you are not a rail carrier.′′ They were told, ′′Cross your T’s, dot your I’s and refile it.′′ That is what they were 

told. 

So the system worked in that what they gave the STB was not 

what it should have been, but it does not stop them from cleaning 

up the paperwork, refiling it and going through that process. Believe me, you know, we have the horses ready to roll if something 

gets refiled again. 

Ms. BROWN. Okay. They have just called for a vote, and so this 

is really, kind of, the end of this panel. I want to thank you all. 

Would anyone like to make brief closing remarks? We have four 

votes, and then we have the last panel. 

Yes, ma’am? 

Ms. CHASEY. Can I just say something really quickly? 

When the STB was asked how many of these facilities exist, they 

will never have a count of how many of these facilities exist, because if there is an existing siting and an operating train, they do 

not have to make an application to the STB in order to put a solidwaste facility in there. The STB has no say in it. They can just set 

up and operate. You know, I think they have to get an exemption. 

Mr. FOLEY. Well, just on that note, too, I think what is also required is, if I might say, just as we asked for, let us say, improved 

intergovernmental interaction between ourselves and State government, I think, in this particular case, when there are cases that 

come before the STB, they should certainly notify local communities, number one, local governments. 

Number two, in the cases just mentioned by Ms. Chasey where 

there is, in fact, no notification to the Surface Transportation 

Board, there has to be some methodology that is developed through 

this legislation that would bring greater light to this area of Federal law and also greater light as to who and what the Surface 

54

Transportation Board is. I mean, you have a panel of folks here 

who, historically, because we are from the Northeast, have some of 

the oldest railroads in the country, and many of us are very prorailroad. But I think what gets our dander up is when these loopholes are exploited that can potentially impact the health and welfare of our residents. 

So there has to be a way to try and bring not only more transparency to the process but to also develop a protocol, if you will, 

where the Surface Transportation Board has a more active role in 

working with localities about these things, not so much for us to 

automatically say no, but to make us aware of it. And then we can 

use our good auspices, along with the State government’s and the 

Federal Government’s, to see what is in the best interest of all concerned. 

At this point, I have been involved in politics and in government 

for over 25 years. The first time I ever heard of the Surface Transportation Board was no more than several months ago. You know, 

given the amount of railroads that we have in the Northeast and 

given, particularly in our case, that we would like to see more railroads because of the limited highways that we have on our island, 

I think this is now an opportunity for the Committee, if I may say 

so, along with the relevant Federal agencies, to step things up so 

there is greater interaction and so that we can see more use of the 

rail but in ways that are not injurious to local communities. 

Ms. BROWN. Yes, ma’am? 

Ms. MCMORROW. Yes, I would just like to say that I do not believe any of us is against railroads. In fact, I know that, in my 

county, we are very pro-railroad. We have a large commuting segment of our community that goes to New York every single day and 

uses our railroads. We also spend millions of dollars in our county 

for farmland preservation and open space. 

What I am most concerned about, as I mentioned before, is the 

notification process while we are working to hopefully, I beseech 

you, close this loophole. While we are waiting for that to happen, 

it is very important that somehow notification to local, county and 

State governments be put in place, so that, while we are all holding 

our breath on some of these reapplications, we at least will have 

the opportunity to once again speak up and be counted. If, in my 

case, the Ashland Railroad Company goes forward again, I would 

be able to once again rally the troops to stop it. 

Ms. BROWN. We have to stand adjourned. We have only about 7 

minutes to vote. 

We do not have any more questions. So, if you have additional 

comments, I am going to let you put them in the record. 

We have about 25 minutes in which we will be voting, and then 

we will come back with the panel in about 30 minutes, at about 

1:30 or 1:45. So I am going to dismiss this panel, and we will let 

the third panel come up when we come back. 

But if you have any additional comments, you can submit them 

into the record. We really appreciate your testimony, and we definitely will take it into consideration. 

Thank you very much. 

[Recess.] 

55

Ms. BROWN. I am pleased to welcome the fourth panel, because 

another Committee is supposed to have this room at 2:00, so we 

are going to see how it proceeds. But the first witness for this 

panel is Mr. Robert Jones, Managing Principal of New England 

Transrail. Our second witness is Mr. Thomas Marturano, Director 

of Natural Resources and Solid Waste of the New Jersey 

Meadowlands Commission. And our third witness is Mr. Wolfgang 

Skacel, Assistant Commissioner for the New Jersey Department of 

Environmental Protection. 

TESTIMONY OF ROBERT JONES, MANAGING PRINCIPAL, NEW 

ENGLAND TRANSRAIL, LLC; THOMAS MARTURANO, DIRECTOR OF NATURAL RESOURCES AND SOLID WASTE, NEW JERSEY MEADOWLANDS COMMISSION; AND WOLFGANG SKACEL, 

ASSISTANT COMMISSIONER, NEW JERSEY DEPARTMENT OF 

ENVIRONMENTAL PROTECTION 

Ms. BROWN. Thank you and welcome. Let me remind you to 

please limit your oral testimony to 5 minutes; however, your entire 

written statement will appear in the record. I now recognize Mr. 

Jones for your testimony. Mr. Jones. 

Mr. JONES. Thank you Madam Chair, Ranking Member Shuster, 

Members of the Subcommittee. My name is Rob Jones. I am managing member of New England Transrail, a company 

headquartered in Clifton, New Jersey. And I am very pleased to 

have the opportunity to testify at today’s hearing. Thank you for 

inviting me to appear. 

Perhaps the biggest contribution I can make to the Subcommittee’s examination today of the issue of railroad-owned solid waste 

transloading facilities is to explain our project and the effort that 

we have made to address the legal and practical issues that have 

come up. The benefit of that analysis may be especially useful if 

the Committee considers taking up legislation in this area. 

Transrail petitioned the Surface Transportation Board for authority to acquire and rehabilitate existing track, construct new 

track, and to operate as a rail carrier in Wilmington, Massachusetts. We also propose to build a state-of-the-art multicommodity 

transloading facility and to use the current best management practices for the operation of that facility. Attached to my testimony is 

a rendering of our proposal. 

Our railroad operation will transport a variety of commodities, 

including sand, gravel, plastic resins, plastic pellets, liquids, rock 

salt, aggregates, wood chips, coal fly ash, soda ash, liquified natural gas, corn sweeteners, vegetable oil, biofuels, coal, lumber, construction stone, sheet metal, cosmetic products and municipal solid 

waste, and construction and demolition debris. We will transport 

that rail traffic for about one mile, literally the last mile, and then 

interchange it with connecting carriers that will continue moving 

the commodity to its final destination. 

The concept of our proposed facility being what some refer to as 

′′the last mile′′ is significant. As the Members of this Committee 

know very well, the last mile is a frequent missing element in 

transportation infrastructure. In our case the area where we propose to operate near Wilmington is underserved by rail providers, 

and we hope to provide the missing link. 

56

In recent years shortline railroads have found opportunities to 

provide quick, responsive customer service, often in underserved 

markets, providing transportation services that have largely been 

neglected by the larger Class I railroads. One of these markets is 

in the last-mile transportation of bulk; i.e., non-containerized solid 

waste. These facilities provide services to unload, sort, store and reload that commodity onto rail cars which are sent away from local 

communities on the interstate rail network. Handling and transporting trash by rail keeps it off the already congested streets and 

highways and provides a safer, more efficient way of getting the 

commodity to its final destination. 

The practice of receiving, unloading, sorting, storing and reloading is no different than the activities that railroads have been engaging in for more than a century under the jurisdiction of the ICC 

and later the Surface Transportation Board. The Federal Courts, 

and indeed the board itself, have repeatedly affirmed this position. 

Here it is the same process with simply a different commodity, 

nothing more. 

Under current law, the exclusive jurisdiction of the STB has limits; however, as the STB and the Federal courts have made clear, 

State and local health and safety laws are not and have never been 

preempted. In fact, the only State and local laws that are clearly 

preempted are economic regulations and State or local siting 

preclearance or permitting requirements that could be used to deny 

a railroad’s ability to conduct its operations. 

In addition, Federal environmental laws must be harmonized 

with the jurisdiction of the board. That is the law as it stands 

today. 

It is very unfortunate that a few operators of transloading facilities have argued an overbroad interpretation of existing law to preclude enforcement of local health and safety requirements. That 

mistaken premise has taken on a life of its own and has ultimately 

led, I believe, to this hearing. 

Changing Federal law is not the answer to cleaning up the problems at a few transloading facilities, for one very simple reason. 

The power to clean up those facilities already exists at the State 

and local level. 

Let me offer a few suggestions that might benefit this Committee 

as it considers how to assist State and local authorities. 

First, the STB may need stronger oversight of transloading facility compliance with State and local rules and regulations. We believe the STB fully understands the problem and is already committed to that goal. 

Second, local enforcement authorities need to have a better understanding of their rights, of their legal rights to enforce health 

and safety laws. 

Finally, operators of these facilities need to recognize their responsibility to be good corporate citizens and to work with State 

and local authorities to reach reasonable accommodations. 

In closing, I would like to remind the Committee of the importance of preemption in the context of rail transportation. Members 

of this Committee have been strong supporters of preemption, because undoubtedly you recognize that the Federal Government relies on that principle to prevent patchwork regulation by the State 

57

and local authorities over rail transportation because it is essential 

to interstate commerce. Carving out a single commodity from the 

jurisdiction of the board is the first step towards such patchwork 

regulation. 

This Committee has not chosen to do that before and it is not appropriate now. If this Committee were to alter the board’s jurisdiction, it will effectively prohibit companies like ours from constructing and operating transloading facilities capable of handling 

solid waste and many other products in the last mile of the interstate rail network. 

Thank you for the opportunity to appear before you today. I will 

be pleased to answer any questions. 

Ms. BROWN. Mr. Marturano. 

Mr. MARTURANO. First of all, I thank the Committee for affording 

the New Jersey Meadowslands Commission an opportunity to address this critical issue. 

I am a professional engineer. I have been involved in the solid 

waste field my entire life. The solid waste industry is more from 

the old days when almost every town had its own dump, to now 

when large lined regional landfills or resource recovery plants process our waste in an environmentally responsible manner. This evolution has taken place at the State or local level because ultimately 

how much waste is generated per capita and where and how it is 

disposed of is a local decisions. 

Ms. BROWN. Excuse me; will you pull your mike a little closer? 

Mr. MARTURANO. Recycling has profoundly impacted the per capita disposal rate and it has no Federal counterpart. In fact, the 

only real Federal regulation of most solid waste has to do with the 

large regional landfills and nothing pertaining to the handling 

processing or the transferring of the waste. 

The fact is most people in this room put their solid waste on the 

curb twice a week and it magically disappears. You don’t give it a 

second thought because you know that some local government official knows where it is going and has planned for its disposal in an 

environmentally safe manner. There is no danger of you being 

named as a potentially responsible party. This system works well. 

It is efficient and everyone involved gets to sleep at night. 

Approximately 5 years ago this system started to unravel. In a 

two-mile stretch of track, five separate open dumps started to begin 

operating in my district. When most people look at the photos of 

these rail solid waste facilities, they think they are either 30 years 

old or that they are fake. It is inconceivable to most people today 

that, in today’s enlightened environmental atmosphere, that anyone could think that dumping thousands of tons of waste on the 

ground could be acceptable. These open dumps were located in 

close proximity to warehouses, hotels, industries and sometimes 

residents that relied on the presence of consistent regulations to 

protect their investment in their property. Zero consideration was 

given to the local infrastructure ability to service these facilities. 

Yet when some caught fire, local first responders were called. We 

tried to reason with the operators, but to no avail. 

The NJMC and the DEP were left with no choice but to try and 

regulate the facility through litigation. It is only because of our regional planning agency that we have been moderately successful. 

58

The communities where you find these facilities do not have the resources to protect their residents in the court. Ultimately, we were 

successful in getting structures built so at least the waste was 

being dumped within a building. Unfortunately, because the railroad still insisted that they were answerable to no one in the State 

the structures were built without acknowledgment of the international building code. They did this even though they knew there 

had been several fires in the open dumps and there had been a 

major fire in one of the buildings—if there had been a major fire 

in one of the buildings any of the firemen would know that the 

building code requires all buildings of that size to have sprinkler 

systems which protect the structure, allowing first responders the 

time necessary to ensure that no one remained inside. No such protection existed and there were no defined fire engines for the workers inside. 

This disaster in waiting could have been avoided with a regulated facility. I realize that in the greater scheme of things before 

Congress, the handling of solid waste is relatively insignificant, 

and that is exactly the point. The proper regulation of solid waste 

cannot be done from afar. It is a daily on-the-ground endeavor. For 

the welfare of the people immediately surrounding the facility and 

for our environment it has to be done. 

Solid waste is not like coal, lumber, stone or sand. When these 

items show up at a rail transload facility, everyone knows exactly 

what is going to be off-loaded or dumped from those delivery 

trucks. The inspector of such a facility would see the same commodity being loaded, and loaded with numbing consistency. At a 

solid waste transloading facility not only is each day’s material different, each load is different as well. Also unlike the other ones, no 

one—not the hauler, not the facility operator nor the railroad—

knows what is about to be dumped out the back of that onto the 

tipping floor. 

In a regulated facility provisions are made for loads which are 

smoldering or contain hazardous waste. Likewise, an operational 

manual is prepared so that all employees know what to do and who 

to call in the event of a catastrophic load. 

I could go on and on what I have witnessed being dumped from 

a garbage truck. Instead, suffice it to say the reason I still do this 

after all these years is the beauty and challenge that comes from 

solid waste’s infinite variability. It is a game of cat and mouse that 

can be played out at any time a generator or hauler tries to knowingly or unknowingly slip something by the regulators, and it is our 

job to prevent it. 

We are not opposed to the movement of solid waste by train. In 

fact the NJMC has undertaken proposals to move waste by barge, 

truck, and rail. Furthermore, the NJMC was one of the first planning agencies to specifically create an intermodal zone as part of 

our master plan. We just want the facilities to be properly permitted and regulated on an ongoing basis so as not to majorly impact the adjacent properties. 

As I think you are beginning to realize, this really has nothing 

to do with the rights of railroads. Those rights are not being questioned. Rather, it is about the long history of how solid waste is 

59

handled in our country and whether we can afford a new way of 

doing business in which nobody is watching. 

Ultimately, the success of a private solid waste facility is determined by its economics. As you can imagine with five facilities located within two miles of each other, the competition among them 

for waste is intense. 

Now, suppose that a load of demolition from an interior renovation shows up at a new facility. From the outside the load appears 

to be carpet, ceiling tile, sheetrock. Once dumped, it becomes apparent that the center load is comprised of the fluorescent light 

bulbs which were taken down as part of the renovation. 

What happens now? The operator is not equipped to segregate 

the waste and transport that waste by truck, nor is there money 

available to cover the cost of transporting the bulbs to a hazardous 

waste facility. My guess is that since there is no enforcement risk 

or risk of losing the nonexisting facility permit, the waste is loaded 

into the train car and no records exist that even indicate the bulbs 

were there. Neither the rail company nor the receiving landfill will 

know that the waste they accepted was more than just demolition 

waste. The only true loser in this scenario is the environment and 

several States. 

If the facility were regulated and permitted, the scenario is much 

less likely to recur because they would be subject to fines and possible revocation of the operating license. The risk outweighs the 

short-term financial gain. Not so in a facility that, in effect, regulates itself. 

Finally, I would like to comment on the economics of regulated 

versus nonregulated solid waste transfer facilities. The railroads 

have said that their main objective to being regulated at the local 

level is the economic consequence of regulation will make the facility noncompetitive. This conclusion is simply not supported by the 

facts. 

Within the same two miles that we have the five separate 

dumps, we have a fully licensed transfer facility that transports 

waste by truck. The only significant difference from this facility 

and the permitted rail facility is, in one case, the waste travels 

from the western landfill by truck carrying 22 to 24 tons, and the 

other travels in 100-ton rail cars. Both sides of this debate stipulate that it more economical to ship waste by rail versus a truck. 

Therefore, assuming the cost to build a fully permitted transfer station versus a fully permitted transrail facility are equal, the 

transrail will always be the cheaper alternative to delivering the 

waste to a landfill. 

We are presented with the unique opportunity to resolve this 

problem before solid waste processors across the country decide to 

get off the fence and join the small but growing number in the 

Northeast who are trying to establish this new unregulated way of 

doing business. After all, why submit to the bother of following 

rules when you don’t have to? 

Hopefully this issue can be resolved with the legislative clarification. Thank you. 

Ms. BROWN. Mr. Skacel. 

Mr. SKACEL. Thank you, Chairwoman Brown and Members of 

the Committee, for inviting New Jersey to testify on rail-affiliated 

60

solid waste transfer facilities. In our efforts to ensure safe operation of these facilities I would also like to thank Congressman 

Pallone for his leadership by bringing attention to the severe environmental and public health impacts of railroad-owned solid waste 

transload facilities. 

My name is Wolfgang Skacel and I am the Assistant Commissioner for Compliance and Enforcement at the New Jersey Department of Environmental Protection. New Jersey supports the movement of solid waste by rail, which reduces traffic congestion, fuel 

consumption, and air emissions from diesel trucks. But these environmental benefits must and can be had without the current harmful impacts of an unbridled industry that threatens to return us to 

an era of open waste dumps. 

New Jersey has the highest number of Superfund sites in the 

Nation and is still recovering from a legacy of indiscriminate dumping of waste and the influence of criminal elements in the waste 

business. Consistent with Congress’ proclamation in RCRA, the Resource Conservation and Recovery Act, that solid waste management is primarily the responsibilities of the State, New Jersey implements and enforces a strong solid waste management program. 

Our goals have been to prevent the routine creation of new contaminated sites, to ensure the use of environmental controls at 

waste operations, and to exclude entities with organized crime connections, disqualifying felony convictions or poor environmental 

compliance histories from the industry. 

I just need to note for a minute that you heard earlier testimony 

about some of the entities that have been showing up at various 

sites. Well, we deal with the same entities. And when we knock 

them out of the business it is amazing how they show up as railroad sites. Our progress has been threatened by waste operators 

and railroads abusing the preemption provision of ICCTA, the 

Interstate Commerce Commission Termination Act, by claiming 

they are exempt from all State and local law, including vital public 

health and environmental regulations. 

State health safety and environmental laws, however, are often 

the only safeguards against harmful pollution to our water, air, 

and land resources caused by the mismanagement of solid waste. 

Railroads are taking us a step backwards in environmental protection. Waste is not innocuous. Construction and demo debris, for 

example, can contain any number of hazardous, toxic, or even radioactive materials such as copper and arsenic and building lumber, mercury in light bulbs, lead paint, pesticides, PCBs and 

sealants and adhesives, asbestos in insulation, roofing and siding 

materials. 

Think of the myriad of environmental and quality-of-life impacts 

that the unregulated handling of such waste can cause in a neighborhood of your constituents. The STB simply does not have the expertise, staff or regulatory tools available to properly regulate the 

waste industry or to address the many serious consequences of mismanaging solid waste. 

I have 150 people in the Department of Environmental Protection that are devoted to dealing with solid waste. You have 150 

people in the Surface Transportation Board to deal with all of the 

Surface Transportation Board’s issues. You are not able to do the 

61

job with that kind of staffing. More importantly, the Surface Transportation Board has no regulatory authority over the ancillary facilities once the railroad is established. 

You asked a question earlier from the Chairman of the STB how 

many rail facilities are there. In New Jersey there were four that 

were shut down. There are currently 12 that are operating and 

there are eight more that are proposed. A lion’s share of these facilities are right here in New Jersey. 

Leaving the recognized rail carriers to their own devices has 

proven to be dangerous because as railroads argue, they are free 

to operate open waste dumps. And they have. As shown in the photographs we have prepared, a handful of waste facilities actually 

dumped, sorted, processed and transferred garbage out in the open 

air. The open-air operations and even operations enclosed by walls 

and a roof have allowed clouds of contaminated dust to blow off 

site, pump leachate into adjoining wetlands, short-circuited transmission lines, caused fire and a roof collapse, and allowed contaminated storm water runoff to seep into the ground and reach ground 

surface waters of New Jersey. 

To protect against these problems, New Jersey adopted regulations that set forth basic measures to protect against hazardous 

dust from polluting our air, toxic metals and chemicals from contaminating drinking water supplies, wetlands and other important 

natural resources from being wantonly destroyed, rats and other 

vermin from being attracted, and increased risk of fire from endangering our citizens, nearby businesses, and community assets. 

All waste transfer in New Jersey must meet these same standards and more. Yet under the broad claims of preemption, railroads 

have resisted even these minimum operating standards. Those are 

commonly referred to as the 2D standards, broadly challenging the 

State’s authority to enforce State solid waste in any State law. But 

solid waste management has always been and continues to be the 

State’s responsibility. 

What we now ask is for your help in recognizing this primary responsibility of the States and affirming the State’s authority to regulate solid waste activities and to address the problems attendant 

with waste management. 

I thank the Committee for its continued interest in this effort on 

this pressing issue, and request that the Committee continue to 

keep the testimony open so that we can submit additional testimony at a later date. I am also happy to answer any questions you 

may have. Thank you. 

Ms. BROWN. Thank you. 

Mr. Shuster. 

Mr. SHUSTER. Thank you. Mr. Skacel, is that right? 

Mr. SKACEL. Skacel. 

Mr. SHUSTER. Skacel, thank you. 

The permitting process in New Jersey, you described it a little 

bit. Can you talk a little bit what actually has to be filed and the 

cost to somebody filing that? 

Mr. SKACEL. It is essentially a two-phase process. The first phase 

begins with a county plan inclusion. And the second phase is to actually file a permit application, have it reviewed and approved. The 

approximate cost, I do not know what the cost for a county plan 

62

inclusion is. I guess it would vary by county. Approximate application, depending on the nature of the facility and the size of the facility, assuming the largest facility for solid waste, you are probably talking in the neighborhood of $100,000 permit application 

fee. 

Mr. SHUSTER. And does the New Jersey Department of Environmental Protection have a stated policy on the hauling of waste? 

Would you rather see more of it go towards trains moving it, or 

trucks, or no preference? How do you view that? 

Mr. SKACEL. We are certainly in favor of moving waste by rail. 

The issue is not moving the waste by rail. The issue is the nature 

and the way these facilities are operated in New Jersey. The issue 

isn’t the railroad. The issue is really the operators that set themselves up, that align themselves as railroad facilities. The railroads 

just don’t seem to be able to have any sort of control over their operations. 

Mr. SHUSTER. Did you want to say something, Mr. Marturano? 

Mr. MARTURANO. The only thing I would say is one of the ways 

you qualify for preemption is if you are an actual rail facility. We 

heard that from the STB. Obviously, those five facilities within two 

miles of each other, they are not all rail facilities, they were never 

rail facilities. Each one was operated by an individual hauler under 

the guise of being a rail facility. They were never rail facilities, 

they should never have qualified for even a hint of preemption. 

What company of any kind would put five distinct facilities within 

two miles of each other if you really and truly owned all five of 

them? It was a charade from the beginning, it is still a charade 

that goes on today. 

Mr. SHUSTER. Has the STB involved itself in those five facilities 

that you know of? 

Mr. MARTURANO. Not that I am aware of, no. 

Mr. SHUSTER. Do you believe—earlier we heard members of the 

STB talk about notification. Do you believe that would help solve 

a lot of the problems, if people had put notice in the STB that they 

were going to do this and sort of shed light on their operation? 

Mr. MARTURANO. No, I don’t believe it would matter one bit. Because all five of these facilities popped up when the STB’s powers 

were in effect. The NYS&W Railroad felt it didn’t need to notify the 

STB or anyone that they were starting these transload operations, 

even though as you see from these pictures it was literally dumping garbage on the ground, because it was no different than had 

it been lumber. It could have been a lumberyard, so therefore they 

don’t need to go to STB to open a new lumber yard. We don’t need 

to go to STB to dump 5,000 yards of waste on the ground and start 

putting it into gondolas. 

It is just not apples and apples. Garbage is never a commodity, 

it was never a commodity. Those other things that the rail hauled, 

those are commodities. People worry about losing them. Look at the 

pictures of these cars as they go in the rail cars. They are heaped 

above the water line of the cars. They are heaped that way because 

if you follow the rail lines you will find the waste falling off these 

cars. They refuse to tarp them because, as you move, you lose some 

of it. And when you get to the other end, you pay less to dispose 

of it because you lost some of it along the way. 

63

I can take you to rail lines right now in New Jersey that have 

debris littering the sides of those rail lines from people—and not 

all operators are the same—overzealous operators who top these 

things with the hope that the vibration will send some of the waste 

over the side. They gain economically by thwarting the environmental issue. 

And that is what has been at the crux of this from the very beginning. It is a way around doing what you should do. There are 

perfectly legitimate rail operators out there that handle the waste 

legitimately and in an environmentally conscious way. That is 

what we should be encouraging, not this. 

Mr. SHUSTER. Mr. Jones, I understand that you filed an appeal 

with the United States First Circuit Court. Someone is shaking 

their head; is that accurate? 

Mr. JONES. That is not us. 

Mr. SHUSTER. Okay. It must be a different company. Are you a 

railroad? 

Mr. JONES. We have an application, a petition pending before the 

Surface Transportation Board right now to become a railroad in 

Wilmington, Massachusetts. 

Mr. SHUSTER. What will you have to do going through that process to become a railroad? Do you own locomotives? 

Mr. JONES. We do not. As soon as we are provided with the authority to operate, we will procure locomotives and rail cars and 

other machinery that would be required. 

Mr. SHUSTER. So presently, no locomotives? 

Mr. JONES. That is a massive investment to make without having the operating authority. 

Mr. SHUSTER. Are you actually operating now as a rail transfer 

station? 

Mr. JONES. No. I have in the past been involved in those kinds 

of developments. Most notably there is one in Newark, New Jersey 

that is up and operating right now. It is owned by Canadian Pacific. 

Mr. SHUSTER. Canadian Pacific is operating that? 

Mr. JONES. They are indeed. They use a contract operator. 

Mr. SHUSTER. How does that facility operate in Newark, New 

Jersey, Mr. Marturano? 

Mr. MARTURANO. Well, again, this goes back to that issue: Is a 

contract operator who used to be a hauler, is that the same as a 

railroad operating the facility? That is the question that somebody 

has got to answer, because that is the scam that is being done. You 

hire people—and that was our case in North Bergen. They are all 

haulers, some of them which have been debarred from operating in 

some states. They are all haulers. They got in, they started operating again. That is not a rail operator. Just because you sign a 

piece of paper, you hire an old hauler, now he is suddenly a railroad employee. That is ridiculous. But that is the scam that has 

been perpetrated here is that you hire these people and then all of 

a sudden they became a railroad. And they are covered under the 

same umbrella that the legitimate rails like Canadian Pacific and 

all the real legitimate ones. They should be protected. No one 

doubts that. 

64

But don’t give an umbrella to somebody who has a fleet of trucks 

that he picks up garbage; was a railroad that doesn’t own any piece 

of railroad equipment in his life, and all of a sudden he is a railroad, because you signed a piece of paper saying they will now act 

as my agent. No, that is ridiculous. 

Mr. SHUSTER. Thank you. I see my time has expired. 

Ms. BROWN. Mr. Jones, in your testimony you stated that local 

health and safety laws are not and have never been preempted. 

Yet, today I have heard a number of examples where railroads are 

clearly violating State and local health and safety laws without repercussions. Can you better explain what laws you are referring to 

and why they are not enforced through previous examples? 

Mr. JONES. Yes ma’am. We believe that there has been an 

overbroad interpretation by some of these folks that are calling 

themselves railroads to get around having to comply with local and 

State regulations. It is spelled out very clearly in the law that if 

it is health- and safety-related, the railroads have to comply just 

like anybody else does. 

That trash mountain that showed up at the facilities Mr. 

Marturano just described, the States are fully empowered to go out 

there and shut that down on day one. As a matter of fact, that kind 

of operation should never have come into existence in the first 

place. And they only came into existence because they have used 

the notice of exemption proceeding. 

Whereas the Surface Transportation Board and all of the localities that govern these types of facilities, or the localities in which 

they intend to exist, they don’t find out about it until after the fact. 

Ms. BROWN. Mr. Jones, I think you have a picture that you want 

to put up. 

Mr. JONES. Yes ma’am I have several. I mentioned——

Ms. BROWN. Mr. Shuster, if you take a look at this, I think this 

is the site in New Jersey. Will you all take a look at this. Where 

is this picture here; where is that? 

Mr. JONES. That picture is of New York and Susquehanna rail 

yard in North Bergen, New Jersey. That is the infamous trash 

mountain that Mr. Lautenberg spoke about this morning. As you 

can see, it is on open ground, it is open air, it is exposed to the 

potential for fires. You got power lines running across the top of 

it. That is something that should have never come into existence. 

Ms. BROWN. Now, what kind of permit does this have? 

Mr. JONES. I believe they did that with a notice of exemption, 

being an existing railroad. Unlike someone like us, we could never 

create anything like that, because we would be a new build railroad, and we had to apply under a different proceeding, the petition proceeding, which was accompanied by an environmental review, an up-front environmental review. So there was no potential 

for us to sneak through in the dark of night. Everybody knew what 

we were doing on day one. 

Ms. BROWN. Mr. Skacel, would you like to respond? 

Mr. SKACEL. Just to clarify, there was no notice of exemption. 

This is an existing railroad. New York Susquehanna and Western 

operated this. They simply decided we are going to set up this operation. There was no requirement for notice or anything else to the 

Surface Transportation Board. And I think the one point that I 

65

consistently hear almost as a common theme throughout all this 

testimony is we talk about health and safety. There is another factor here that we are not covering, and I heard it in Congressman 

Shuster’s opening remarks as well. We talked about fire code, electrical code, building code, plumbing code. What about the environment? Where is the code that protects the environment? And 

throughout this entire process there is no reference to the environment. And that is what this issue has been about all along. 

Mr. Jones points to the Canadian Pacific facility in Newark. If 

we were to see a picture of that facility, you would see that that 

facility doesn’t have air pollution controls. It has what they refer 

to as a misting system where the theory is, if you create enough 

mist, the particles become so heavy that everything will fall to the 

ground. If you are lucky it falls within the facility. Most of the time 

it is a wind tunnel effect. It blows right out of that facility and onto 

the ground and into the environment. 

Again, there are insufficient controls. And why are there insufficient controls? Because the Surface Transportation Board is not requiring it, and we are unable to require anything further. 

Ms. BROWN. We have about 5 more minutes before we have to 

get out of this room. I think I did have one thing. 

Mr. JONES. We can’t get our computer equipment to work properly here. There we go. But we do have a rendering of what we are 

building in the state of Massachusetts. It is nothing like these 

mountains of trash that you have seen. It is not an open-air facility, as was described this morning by Mr. Lautenberg and Mr. 

Pallone. We have storm water controls so there won’t be any leachate running through mountains of waste. All of our roads are 

paved. There won’t be any mud in the streets. All of our storm 

water detention basins are lined. We have odor control in our 

building, dust control, local dust control. We have dust collection, 

as well as a droplet system. We will also be using odor neutralizers. And we are just properly sited. We are 1,300 feet away from 

the nearest sensitive receptor, with commercial and industrial activities between us and them. So we are a much different facility. 

Ms. BROWN. I understand. Are you following the EPA best practices as far as you develop this facility? 

Mr. JONES. I believe that we are. Moreover, when problems arise 

in other jurisdictions, we pay attention; we do a little bit of research. We looked at the—in the Susquehanna case, the Attorney 

General’s complaint. He outlined very clearly what some of the adverse impacts were that were associated with the facilities in New 

Jersey. And we designed all of them right out of it. And because 

there was an up-front environmental review, the public had an opportunity to comment on our submissions. So we had to respond to 

that comment. 

Ms. BROWN. Let me just say that one of the things, you know, 

it seems like you follow like maybe a different procedure and you 

all are complying. But basically it is like a ′′trust me.′′ It is not that 

we have guidelines in order. And in listening to the—I don’t know 

whether or not they have the—they couldn’t even tell me today 

how many plants were out there. That concerns me. In what community? 

66

Mr. JONES. We can get out of the ′′trust me′′ with one simple 

change to the process: Make everybody do what Transrail had to 

do. Eliminate the notice of exemption proceeding. Make everybody 

that is handling this type of cargo do a petition; file a petition 

which involves much more extensive information, including an environmental review, an up-front environmental review, along with 

a filing of convenience and public necessity. 

Ms. BROWN. What about the continuous monitoring? You are 

going to have the last word. What about the continuing monitoring? Because with the 100-plus, they are responsible for the entire country. And they only have about six or seven people, period, 

that work in this area. 

Mr. JONES. Well, I only know that because we are filing an environmental review—because we are doing that and nobody else is, 

none of the facilities in New Jersey certainly did—that will allow 

the Surface Transportation Board to condition—condition, place 

conditions on any approval that is granted to us. And in doing so, 

as they so eloquently put on page 17 of their jurisdictional decision 

on July 10th, that they could use that, create conditions that would 

force us to have to comply with all of the regulations or some of 

the regulations, certainly those that are applicable to rail 

transloading facilities that may be common to rail transloading in 

the State of Massachusetts. It is a normal sold waste regulation. 

So they would have, the State of Massachusetts would have the 

ability to monitor. We don’t have any opposition to that. We would 

welcome it. 

Ms. BROWN. Now you have the last word. 

Mr. MARTURANO. In the question to this—and this is a great pictorial of what the site plan looked like—but the fact is if a railroad 

that owns that line wanted to open up one of these open dumps a 

mile from Mr. Jones’ facility, it can. And it doesn’t have to spend 

all this money that Mr. Jones is spending doing it the right way. 

They don’t have to spend that, because there is no regulatory force 

to make them spend it. They could open that up. 

And we have talked about economic competition. There will be 

economic competition. There will be someone who is trying to do it 

the right way, as I believe Mr. Jones is. Someone can open that facility tomorrow, dump on the ground, and take his customers away 

the next day. 

Ms. BROWN. Is that correct, Mr. Jones? That is a yes-or-no question, Mr. Jones. 

Mr. JONES. I believe so. 

Ms. BROWN. Mr. Skacel, do you have any final comments? 

Mr. SKACEL. Just that don’t lose track of the fact that it is more 

than just the exemption process that needs to be followed here. It 

is the follow-through. 

Even once you go through all of this process—and I agree the 

presentation looks really great—but it is the day-to-day operations, 

the follow-up that needs to happen, and currently the way it occurs 

there is none. The Surface Transportation doesn’t do it, we have attempted to do it at every juncture in this whole process, and we 

have spent millions of dollars trying to get to this point. We are 

unsuccessful to date in having the ability to control these types of 

sites. 

67

Ms. BROWN. Thank you. And in closing, let me just say that the 

record will remain open for 2 weeks, 14 days, so that you can add 

any additional information that you want to share with us. 

And I want to say that someone that is an owner stopped me in 

the hall and said that he would like to submit information for the 

record. So I think the record is open to take testimony from anyone 

that wants to make a point on what we are discussing. So I just 

want you to know that. 

And I want to thank you very much for your testimony, and 

sorry that we didn’t have as much time, but obviously we are going 

to have some follow-up and lots of discussion. It is a concern. And 

this process is moving forward. We are going to have a bill on the 

floor that has some elements here, that will be up tomorrow. And 

then the Senate has some information in theirs, and we will go to 

conference. And so we will be working through the process. 

And thank you very much for your testimony. Thank you very 

much. 

[Whereupon, at 2:30 p.m., the Subcommittee was adjourned.]

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