Wednesday, May 28, 2008


Some moms and dads in northern Virginia are not happy about sending their kids off to school these days. Why? Well, it seems coming to the neighborhood is a brand new operation where railroad cars will be transferring highly flammable ethanol to tanker trucks not far from their kiddies schools.

And, of course, residents feel like no one really talked to them about. So they were upset with the city.

Problem is, as city officials told them, nothing much they could do but pass resolutions since the railroad industry is pretty much exempt from zoning laws and the like.

And they are correct.

Responding to a situation in Georgia where railroad construction operations where "upsetting" nearby locals, Nancy Beiter, an attorney for the Surface Transportation Board, the federal agency that oversees the railroad industry said, "They cannot require any kind of procedure that would prevent the railroad from building something. There isn't any place where they've beaten the railroad."

She failed to mention her agency might be able to do something to help these old fashioned Americans, but won't.

Anyway Beiter is right on one score. When fighting with the railroads it does seem when the locals around the country have gone to court they virtually always lose.

You see there is this thing called the Termination Act. The Termination Act granted the Surface Transportation Board (STB) exclusive jurisdiction over railroads and rail transportation, and entities within that jurisdiction are exempt from state and local land use and environmental laws.

Another example of this outrage involved the District of Columbia no less. It seemed the District enacted a law governing routing of rail shipments of hazardous materials. The Surface Transportation Board stepped in and ruled that, "...based on the statute and well-established precedent, Congress foreclosed state or local power to determine how a railroad's traffic should be routed." The Sierra Club later petitioned the Board to reconsider and reopen its decision. The Board said, "Forget about it."

In fact, there has been an organized effort by some within the railroad industry to de-regulate solid waste activities along railroad lines. Unregulated solid waste transfer stations are popping up across the nation.

The railroads, of course, base their case upon the strictures of the Surface Transportation Board or STB (by the way the STB is a three-member board appointed by the U.S. President), which always rules they alone have jurisdiction over the siting of these facilities under the Interstate Commerce Commission Termination Act of 1995 (ICCTA). President Bush supports this ruling, of course.

It worth noting folks that once the STB rules these facilities are exempt from local and state jurisdiction the STB's job is done, as they have no funds or legal or legislative authority to regulate solid waste activities. In the case of New Jersey, for example, this has resulted in open dumps piled as high as a two story building.

But wait just when it seems all hope is loss the Clean Railroads Act of 2007 was passed late last year by the House of Representatives. The legislation will allow states to regulate solid waste processing facilities along rail lines. It was included as an amendment to larger rail safety legislation. The legislation may close the loophole in federal law that prohibits states from enforcing environmental, health and safety regulations at these rail sites.

Congressional action followed a ruling by the Third Circuit Court of Appeals which ensured New Jersey, and all states, have clear authority over solid waste transfer stations.

However, don't get too excited just yet.

The latest on the bill's progress in the Senate has it as added to calendar on Mar 03, 2008: Placed on Senate Legislative Calendar under General Orders. Calendar No. 590. That's the last I can find about it (if you know anything more, please comment or let me know).

The legislation, if finalized, will require the states to do something. The question then will become - will your state take action?

The following is from NBC4 News (Washington, D.C.).

Alexandria Residents Concerned About Ethanol Transfer Station
Residents Say They Weren't Notified About Facility For Transport Of Flammable Substance

ALEXANDRIA, Va. -- The opening of an ethanol transfer station near homes and a school in Alexandria is causing residents of one neighborhood to worry.

Some Cameron Station residents said they imagine the worst when they look out their town home windows at the operation under way in the nearby Norfolk Southern yard.

Last month, the company opened a station where up to 20 rail cars per day bring in ethanol, which is transferred into truck tankers for shipment to local storage facilities.

Residents said they wonder what would happen if the highly flammable ethanol ignited.

Mindy Lyle, who is on the board of the Cameron Station Civic Association, said she and residents of another nearby town home complex are angry that they were not notified in advance about Norfolk Southern's plans.

"We really want to know that were there an incident, someone could be out here and we wouldn't have to evacuate for days, weeks, whatever," Lyle said.

She said the station poses a danger to an elementary school, a Metro stop and even the nearby Beltway.

When residents started pressing city officials for information, the city manager sent out a memo saying that while city leaders "are opposed to and have concerns about this type of facility," they are powerless to block it because federal rules exempt the railroad industry from local zoning laws.

A Norfolk Southern spokesman declined an on-camera interview. He said the company initially told the city about its plans in August 2006.

He said in response to concerns that the rail company is storing special foam on the site required to put out a fire if ethanol ignites.

Norfolk Southern is also purchasing foam and a special truck for the Alexandria Fire Department.

Chief Adam Thiel said the facility is in compliance with fire prevention requirements.

"I think safe is really a matter of degrees," Thiel said. "I mean, certainly, there have been incidents involving all manner of hazardous materials shipped on road and rail corridors. We've had multiple incidents here in the national capital region. So there's always risk."

"I think the challenge for us, and, of course, the challenge for the folks that run this facility is to make it as safe an operation as possible," Thiel said.

The facility will be discussed at Alexandria's City Council meeting on Tuesday. Three council members said the council is unanimous in its concern and will ask whether the company is really exempt from seeking a special-use permit from the city.

Council members said if the company can sidestep city rules, they will press the congressional delegation for help.

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