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TRENTON
– Attorney General Anne Milgram announced
today that she has signed a multi-state
letter to President Bush asserting the legal
authority of states to regulate solid waste
facilities along railroad lines, and requesting
that the U.S. Office of Management and Budget
(OMB) reconsider a recent policy statement
suggesting otherwise.
“Regulation
of solid waste management is within the
traditional police power of the States.
The Supreme Court has long recognized that
control over solid waste management is a
legitimate exercise of police powers to
protect public health, safety, and the environment,”
reads a portion of the letter. In addition
to New Jersey, the letter is signed by Attorneys
General for Massachusetts and Maine, Ohio,
Rhode Island and Vermont.
The OMB policy statement at issue was released
on Sept. 11. The statement was issued in
response to a U.S. Senate appropriations
bill that includes funding for the federal
Surface Transportation Board (STB). A section
of the bill provides that the STB will have
no jurisdiction over solid waste management
activity involving railroads.
The OMB took issue, responding that it “objects
to allowing States to regulate solid waste
stored along rail property, preempting authority
granted to the Surface Transportation Board.”
The states contend STB has never been granted
authority to regulate solid waste.
“The
letter we have signed asks that OMB reconsider
its position, because the OMB policy statement
is founded on an incorrect premise,”
said Milgram. “The OMB position reflects
an apparent misunderstanding of the traditional
role that States have in regulating solid
waste, as well as a misunderstanding of
the authority of the Surface Transportation
Board. “
”The
Bush administration's position on this critical
environmental issue is simply bad for the
health and safety of New Jersey's residents,”
said Department of Environmental Protection
Commissioner Lisa P. Jackson.
“It is time for the administration
to affirm the right of states to provide
regulatory oversight for these facilities,
not to undermine the progress we've made
toward this goal over the past few months,”
DEP Commissioner Jackson added.
According to Attorney General Milgram, a
1995 federal law gives the STB exclusive
jurisdiction over railroads, but does not
give the STB any jurisdiction over the regulation
of solid waste management. In fact, she
noted, Congress has recognized that regulation
of solid waste remains primarily a function
of the states.
The multi-state letter to President Bush
asserts that “...even to the extent
that the solid waste facilities fall within
the STB regulatory authority (e.g. proposed
as part of a larger project requiring prior
STB approval), the STB does not have the
experience, and has not been provided with
the expertise or the resources to regulate
the daily operations of such facilities
and to pursue enforcement actions.”
The letter concludes by asking that the
President direct OMB to reconsider its policy
position “to ensure responsible environmental
protection.”
Milgram said the Attorney General’s
Office, working in collaboration with the
DEP has every intention of continuing to
monitor solid waste management activity
along New Jersey railroads.
“We
remain committed to protecting the safety
and health of New Jersey citizens by regulating
solid waste activity that takes place along
rail lines running through our communities,”
she said.
On behalf of DEP and, in some cases, the
New Jersey Meadowlands Commission, the Attorney
General’s Office, through its Division
of Law, is involved in several litigation
matters pertaining to solid waste transfer
facilities located close to railroad tracks
and aligned with a rail carrier. In each
case, the facilities claim to be exempt
from state regulation.
The
cases currently in litigation include:
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N.Y. Susquehanna and Western Railway Corp.
v. N.J. DEP and N.J. Meadowlands Commission
: The Third Circuit Court of Appeals upheld
the State’s authority to regulate
rail carriers, holding that state regulation
of rail carriers is not preempted if it
is non-discriminatory and not unduly burdensome.
The Third Circuit reversed the District
Court’s broad ruling that federal
law preempts the State’s regulations
that pertain to rail carriers transferring
solid waste and remanded for a hearing
to consider the validity of each regulation.
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N.J. Meadowlands Commission and N.J. DEP
v. The N.Y. Susquehanna and Western Railway
Corp., Stephen J. Guido, and Westside
Transload, LLC: Currently before the New
Jersey Superior Court in Hudson County.
The state sought and obtained temporary
restraints to halt construction of a solid
waste facility in North Bergen pending
demonstration that the building constructed
would comply with health and safety regulations.
The Court subsequently allowed construction
to proceed under its continuing jurisdiction.
An amended State complaint naming additional
defendants was filed on March 6, 2007, alleging
violations of and seeking compliance with
the New Jersey Solid Waste Management Act
and the Hackensack Meadowlands Reclamation
and Development Act. As in the other case,
the defendants claim that state regulation
of rail carriers is preempted. Trial is
currently scheduled for March 17, 2008.
- U.S.
Rail Corp. Lease and Operation Exemption
Before the U.S. Surface Transportation
Board : On June 6, 2007, U.S. Rail Corporation
filed a Notice of Exemption with the federal
Surface Transportation Board (STB) and
sought to be designated a rail carrier
under the STB’s class exemption
procedures. These procedures allow entities
to seek rail carrier status from the STB
by submitting only brief, summary information.
The DEP, as well as the City of Paterson,
asked the STB to reject U.S. Rail’s
Notice of Exemption based on concerns
that U.S. Rail’s papers contained
false and misleading information, in favor
of a full STB review. DEP is concerned
that solid waste will ultimately be handled
at the facility.
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