[Congressional Record Volume 151, Number 106 (Friday, July 29, 2005)]
[Extensions of Remarks]
[Pages E1714-E1715]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




ON THE INTRODUCTION OF A BILL TO EXCLUDE SOLID WASTE DISPOSAL FROM THE 
            JURISDICTION OF THE SURFACE TRANSPORTATION BOARD

                                 ______
                                 

                          HON. ROBERT MENENDEZ

                             of new jersey

                    in the house of representatives

                        Thursday, July 28, 2005

  Mr. MENENDEZ. Mr. Speaker, I am proud to be joined by a number of my 
New Jersey colleagues to introduce legislation that will close a 
glaring loophole in current law that allows railroads to brazenly flout 
the critical Federal, State, and local environmental protections that 
keep our rivers clean, our air clear, and our families healthy.
  In my district, a small railroad has recently begun operation of a 
solid waste transfer facility for construction and demolition debris. 
These sites are open to the air, polluting the surrounding 
neighborhoods with wind-blown debris, and have extremely poor 
stormwater controls, if any at all, allowing rain to leach through the 
trash piles and into sensitive wetlands. I have seen video of these 
sites, which

[[Page E1715]]

sometimes reach the height of a 3-story building, and they are horrible 
eyesores that make you wonder how this can all be legal.
  Of course, Mr. Speaker, it really isn't legal. At least, it's not 
legal according to the State, which recently fined the operator of 
these sites $2.5 million, or the county and local planning boards, 
which have sent me impassioned pleas asking for help. But because of 
this loophole in Federal law, it may all be perfectly legitimate. The 
railroad claims that because of the exclusive jurisdiction of the 
Surface Transportation Board over railroad activities, they are exempt 
from all State and local regulations regarding the handling of solid 
waste. That is only partially true.
  Mr. Speaker, when Congress passed the Interstate Commerce Commission 
(ICC) Termination Act in 1995, it created the Surface Transportation 
Board (Board) and gave it broad authority over rail transportation 
issues. The jurisdiction of the Surface Transportation Board was deemed 
to be ``exclusive'' over activities that are integral to rail 
operations. The intent of this was to allow railroads, which cross 
State lines, to avoid having to deal with a patchwork of State economic 
regulations that might hinder interstate commerce. Subsequently, the 
courts have ruled that this exclusive jurisdiction of the Surface 
Transportation Board preempts State and local regulations when it comes 
to permitting requirements. Hence, railroads are exempt from having to 
comply with local land use plans when, for example, they decide to lay 
additional track, although they are still required to comply with 
Federal environmental statutes such as the National Environmental 
Protection Act (NEPA)
  However, despite the preemption of local regulations, Congressional 
intent was very clear at the time the ICC Termination Act was passed. 
The conference report states very clearly that the Board's exclusive 
jurisdiction does not generally preempt State and Federal law. The only 
restriction is that States do not attempt to economically regulate the 
railroads. The Surface Transportation Board concluded in 1999, in their 
decision in the dispute between the Borough of Riverdale and the New 
York Susquehanna and Western Railroad, that ``Congress did not 
intend to preempt Federal environmental statues such as the Clean Air 
Act and the Clean Water Act.'' The U.S. District Court for the District 
of Vermont recently affirmed that statement in the case of Green 
Mountain Railroad Corporation v. State of Vermont.

  I believe it is quite clear that these waste transfer stations are 
threats to the environment, and that the railroad's claim of Surface 
Transportation Board preemption to avoid compliance with any 
environmental regulations is wholly without merit. However, it could 
take years to put that issue to rest. Meanwhile, the people of New 
Jersey would continue to get exposed to fouled air and water as a 
result of unregulated and uncontrolled solid waste transfer sites, and 
more people would be put at risk as these sites multiply across the 
State.
  But that is beside the point. Because I also believe that the 
operation of a solid waste transfer facility is in no way integral to 
the operation of a railroad. This question has not been settled by the 
courts or the Surface Transportation Board, but it can be settled 
unambiguously by Congress. The legislation we are introducing today 
would explicitly state that the Surface Transportation Board does not 
have exclusive preemption over the operation of solid waste transfer 
facilities, and that these facilities would be subject to local zoning 
and environmental regulations. We can not stand idly by while some 
unscrupulous railroads exploit an unintended loophole in Federal law 
when the price is the health and well-being of our constituents and our 
environment. I urge my colleagues to join us in cosponsoring this bill.

                          ____________________