Bonacic, Diana & Duncanson Ask Dec, Attorney General To Be Aggressive On Garbage Train

John J. Bonacic

February 28, 2006

State Senator John J. Bonacic (R/I/C - Mt. Hope), Orange County Executive Edward Diana, and Middletown Mayor Marlinda Duncanson, today asked the State Department of Environmental Conservation (DEC) and Attorney General to take legal action to stop the "garbage train" from "polluting our Districts,". Senator Bonacic also announced he planned to file legislation requiring the State DEC to promulgate regulations relating to garbage near rail lines.

"There is railroading going on in our Districts and it is the taxpayers who are being railroaded," said State Senator John Bonacic, "Railroaded by the liberal use of Federal law by railroad executives and judicial interpretations by appointed Federal Judges."

Orange County Executive Edward Diana stated, "The safety of our citizens is my number one priority. Allowing a trash train station near the rail-line in Middletown is unacceptable as long as I am the County Executive. I will fully support Senator Bonacic and his initiatives in moving this legislation forward."

City of Middletown Mayor Marlinda Duncanson stated, "We very much appreciate the support of Senator John J. Bonacic and County Executive Edward A. Diana. We are going to work with them in every way possible."

In separate instances in Suffolk and Orange Counties, rail companies are asserting that Federal Law pre-empts local regulation of garbage hauling operations. The Federal Law is known as the Interstate Commerce Commission Termination Act ("ICCTA"). Federal Courts have held that ICCTA’s provisions define "transportation" in an expansive manner - taking into account even non-rail related business like garbage transfer stations. Green Mountain 404 F.3d at 638, as cited in Coastal Distribution, LLC and the New York and Atlantic Railway Company v. The Town of Babylon, et. al. 2006 WL 270252 (E.D.N.Y.).

As a result of that broad definition, rail lines and their contractors are able to set up garbage operations in localities - even when zoning otherwise would prohibit such operations. The Court interpretation has allowed waste stations, with potentially hazardous and toxic materials to be in our residential neighborhoods. "Congress could not have intended such an absurd result and we are asking the DEC and the Attorney General to file papers in the appeal of the Coastal Distribution case. The garbage companies are buying or contracting with railroads to subvert the Federal law and violate local zoning codes. That should not be allowed," Bonacic said.

"The Federal Government ought to change the law, so railroads cannot use vague phrases to do just about anything they want. However, we cannot wait for Congress. State Government could and should be more proactive," Bonacic said.

A similar case in New Jersey has led to action by that State’s Department of Environmental Protection. According to the NY Times, the NJ State DEP levied fines totaling $2.5 million against one rail-line and sought an injunction against another. Both the fine and injunction were then subject to court proceedings brought by the rail-lines under ICCTA.

In addition, United States Senator Frank Lautenberg, from New Jersey has introduced legislation (S.1607) in the United States Senate to clarify that the solid waste is not within the jurisdiction of the U.S. Surface Transportation Board. Senator Edward Kennedy (D - Mass.) is a co-sponsor of the bill.

Senator Bonacic said, "In New Jersey, we are seeing a proactive approach by State Government to regulate garbage conducted under the name of rail transit. For the dollars New York taxpayers pay, our State Agencies should be going the extra mile to protect our residents."