Pre-empting Permits

Steve Changaris

WHENEVER I TESTIFY ON PROPOSED state or local legislation, regulations or new solid waste policy, and at the end of every promotional letter, article or speech I write, I close with the following comment:

“NSWMA is a national trade association of private companies, with local chapters, who are dedicated to the environmentally secure and economically efficient collection, processing, recycling and disposal of solid wastes.”

These words provide a glimpse into what the National Solid Wastes Management Association member companies stand for, and what kind of projects NSWMA staff get involved with.

NSWMA is dedicated to an industry that protects the environment and the public health, and thus opposes attempts to apply a federal law that may allow railroads to build waste transfer stations without getting state permits or following local zoning requirements.

For more than a century, railroads have had a broad exemption from state and local laws. Congress knew that an interstate transportation system could not develop if it was subject to contradictory and varying requirements throughout the country. Things changed, though, when the Interstate Commerce Commission was succeeded in the mid-1990s by the Surface Transportation Board (STB). Congress then granted the new agency the ability to exempt railroads from state and local laws, including environmental and zoning requirements.

In recent years, the pre-emption's broad language and a series of supportive legal rulings have allowed some in the railroad industry to set up waste transfer facilities at rail yards without complying with state and local planning and regulatory controls. Some facilities are operating through this loophole.

NSWMA is not opposed to intermodal transfer facilities at railyards. We recognize the vital role railroads play in transporting solid waste. We also are not opposed to transfer stations at rail lines either. However, NSWMA is opposed to any solid waste facility that is not subject to state environmental law or to local zoning regulations.

Modern solid waste facilities are tightly controlled at every stage imaginable. They require thorough engineering; environmental reviews for air, water and other impacts; transportation studies; construction permits; approved operating permits and reviews; regulatory and technological changes; and more. The public interest in waste facilities is manifested by comprehensive state and local laws, rules and regulations, and a cadre of professional state and local administrators committed to waste facilities being sited, built and operated optimally. NSWMA members are proponents of the process. They understand the value and need for all the precautions that are taken into account in developing a waste facility.

Consequently, NSWMA is working with local and state governments to oppose attempts to use the federal pre-emption to evade state and local control. We are working with state and local officials; we have filed legal petitions with the STB; we are building coalitions of solid waste companies, local and state governments, and industry/professional trade associations to ensure that all solid waste facilities comply with permitting and zoning requirements; we are working with members of Congress and their staff to amend the pre-emption if necessary; and, we are reaching out to the media with the simple message that the primacy of state and local control for all waste facilities is most appropriate and should stay intact.

NSWMA will be involved in this issue until the threat of pre-emption is abated and the primacy of state and local control for waste facility development, permitting and operation remains in place. The stakes couldn't be higher for anyone with a responsible interest in solid waste management. If our efforts don't succeed, get ready to have one of these unregulated waste facilities in your community.

Steve Changaris is the Northeast regional manager for the National Solid Wastes Management Association. For more information, or to join NSWMA in this effort, call (800) 679-6263 or email [email protected].