Evading Responsibility

I'M A BIG RAILROAD FAN. GIVEN A CHOICE, I'd rather take the train than fly or drive. I enjoy the rhythm and pace of rail travel, as well as the chance to see some countryside or listen to my iPod instead of gripping a steering wheel. Rail is not the perfect way to travel or to ship products, but it has many advantages and plays an increasingly important role in shipping solid waste and recyclables.

So I'm frustrated by the controversy over rail-based waste processing facilities. These are more than just transloading facilities, and they are using a federal law to exempt themselves from public health and safety requirements. Of course, that's not what they say they are doing, but a quick look at what they talk about and what they avoid talking about is revealing.

Under federal law, railroads are exempt from state and local regulation. This exemption harkens back to the late 1800s, when Congress saw the wisdom of creating a national railroad industry that would be free from the potential inconsistencies of state and local regulation. When Congress “deregulated” the railroad industry, it created the Surface Transportation Board (STB) to administer federal authority over the railroads. The exemption was retained as part of the STB's mandate.

Allowing railroads to operate according to a set of national rules makes sense. So does requiring them to protect public health and safety. But when the two clash, which is more important?

As things stand today, a rail-based waste processing facility can be completely outdoors, can have no odor or vector controls, and can be completely unresponsive to good management practices. Fortunately, not all of the companies seeking to operate processing facilities at railroads are that cavalier about public health. Some take their environmental responsibilities seriously and are seeking state and local operating permits. Unfortunately, however, many don't. Instead, they insist their exemption is all that matters. They believe that because a railcar takes five trucks off the road, they are doing all the public good they need to do.

In perhaps the biggest irony of all, the exemption is driving a stake through the heart of New Jersey's laws against organized crime involvement in the waste industry. Under what is known as the A-901 process, anyone who works in the garbage industry in New Jersey goes through a screening process to ensure they do not have a criminal background. That's why Tony Soprano is a work of fiction. Under the exemption, Tony could be back in business in the Garden State.

In fact, at a workshop on rail transfer stations in New Jersey, the first audience question came from a person who asked if the A-901 requirements applied to railroad transfer stations. An embarrassed New Jersey solid waste official said “no.”

The good news is that local governments, the National Solid Wastes Management Association and the Solid Waste Association of North America have joined together in opposition to these facilities. Court cases in both Massachusetts and New Jersey have challenged the sites' right to operate. Federal legislation has been filed to do away with the exemption as it applies to waste processing facilities at railroads. Bringing sanity back to rail-based waste operations won't be easy. But it's a battle we must take on if we will continue to protect public health and safety as well as the environment.

Opinions in this column do not necessarily reflect those of the National Solid Wastes Management Association or the EIA. E-mail the author at: [email protected].

The columnist is state programs director for the Environmental Industry Associations, Washington, D.C.