Hon. Mark Warner
U.S. Senate
459A Russell Building
Washington, D.C. 20510
202.224.2023 E-mail
Hon. James Webb
U.S. Senate
248 Russell Building
Washington, DC 20510
202.224.4024 E-mail
Hon. James Moran
U.S. House of Representatives
2239 Rayburn Building
Washington, DC 20515
202.225.4376 E-mail
City Council
301 King Street
Alexandria, VA 22314
703.838.4550 E-mail
This Web site chronicles the City of Alexandria’s actions regarding the Norfolk Southern Corporation’s Ethanol Transloading Facility, which began operation in April 2008. The facility is located at the former Norfolk Southern intermodal terminal in the City’s West End.
Ethanol is essentially grain alcohol that has been produced from crops such as corn, wheat, and barley. Because it is domestically produced, it reduces our dependence on foreign fuel sources. Naturally high-octane ethanol contains more oxygen, so it burns cleaner than gasoline and reduces carbon monoxide emissions. Most gasoline-powered vehicles can run on a blend consisting of gasoline and up to 10% ethanol.
City Receives Ruling in Norfolk Southern Lawsuit In June 2008, Norfolk Southern initiated a lawsuit against the City of Alexandria over the City’s regulation of truck haul routes leaving the ethanol transloading facility. On April 15, the City received United States District Court Judge James C. Cacheris' ruling.
Norfolk Southern maintained that truck hauling permits issued by the City for transporting ethanol inside the City limits are preempted by Federal law, and that the City did not follow certain procedural steps in establishing a hazardous materials route. The City filed an answer and counterclaim, maintaining it is regulating trucks on its streets, not rail operations; and that the half-mile path the trucks must take from the terminal is not subject to the type of procedures that Norfolk Southern contended.
On April 15, the City received United States District Court Judge James C. Cacheris’ ruling. The Court found for the City in some respects, but generally found that the City's permitting system for the trucks entering and leaving the transloading facility is preempted by federal law. The City disagrees with certain aspects of the opinion, and is evaluating its appellate rights, but also believes that the Court's ruling still allows the City to pursue regulation of the trucks. There will be more coming from the City as we have time to work through this decision.
This refers to your respective emails complaining about railroad noise next to Cameron Station.
Because [name redacted] raised the issue of brake noise, the trainmaster and the assistant trainmaster monitored the night time switching operations on several evenings and have observed that our employees are complying with NSRC's [Norfolk Southern Railway Company] policy to release the brakes before pulling the cars. To make sure this continues to be done, employees on the extra board as well as regular employees who perform switch service at this location have been informed by Transportation of the need to follow these instructions--not only due to company policy but also to minimize railroad noise for those who live near our yard and line of road. These operations have been tested and found to be in compliance with federal noise standards.
Objections were also made to night time switching operations, basically asking why these operations cannot occur during the day. We assure you that the engine movements that you might see are not aimless movements as the [name redacted] apparently perceive.
The road trains from Lynchburg that transport the ethanol tanks cars and other shipments such as coal for the local power plant (which provides electricity to City citizens) and paper for a distribution facility (on which paper the Washington Post is printed) arrive in the late afternoon. We have three local switch crews that work in the evening during the week. One local switch crew on duty at 7 PM serves certain local customers in Alexandria, Manassas and Springfield. One local switch crew on duty at 8 PM works the transloading facility as well as moves traffic to Springfield. Another switch crew which comes on duty at 11 PM builds and then moves the road train returning to Lynchburg, performing set off and pick up along the route. All three switch crews originate their work at the yard, and at times they have to wait on each others’ movements before they can proceed. The multiple switching moves associated with positioning and re-positioning the empties and loads at the transloading facility alone can take five to six hours, and before that crew has finished its work the late night crew has begun its work to build the next day's train in the yard.
As you can see, not all of the railroad noise stems from switching our transloading facility, but also stems from the other two crews, including the one that makes up the departing road train. From the perspective of a non-railroad third party, the railroad’s various switching operations may blend together over time and may seem only associated with what is apparently right at the yard (in this case, with the focus on the transloading facility). But that is not the case, as all are operated as part of the interstate rail network operation that spans well beyond the confines of the yard.
Unfortunately, during all these very necessary moves, the locomotives will be adjacent to the town houses. The switching complained of must take place at night, because there are several rail operations–including switching–taking place at the yard during the day, and because the local rail operations must fit into the interstate rail network operations as well.
We know that there has been a complaint concerning unnecessary engine idling behind the community, but that is not the case. Any engine idling would have taken place while the conductor was performing any one of his many duties. Our observations show the crews are performing their duties safely and efficiently in accordance with railroad instructions.
We regret that what we have explained above does not create a solution for creating a quiet atmosphere for individuals who have chosen to live near a railroad mainline and yard. Although NSRC does understand and sympathizes with your inconvenience, the railroad operations are reasonable and necessary as we continue to serve our customers as a common carrier in interstate commerce.
A. Gayle Jordan
General Solicitor - Environmental
Norfolk Southern Corporation
Three Commercial Place
Norfolk, VA 23510
Ph: 757-629-2814
Fax: 57-629-2607
The City had argued that transloading was not covered by federal preemption and that Norfolk Southern should have applied for a special use permit before opening the facility.
On June 17, 2008, Alexandria petitioned the STB for a declaratory order, which was granted on November 5, 2008. The action instituted a proceeding to determine whether the operation of an ethanol transloading facility constitutes transportation by rail carrier and, therefore, is covered by the federal preemption provision. The summary of the results of this proceeding is as follows:
First, the STB found that Norfolk Southern's ownership of the facility, along with its payments for construction of improvements, were important. Second, the STB found that Norfolk Southern's relationship with RSI (the contractor that actually performs the transloading from rail cars to tanker trucks) did not give RSI control of the transloading business. The STB placed particular reliance on the fact that RSI is paid a fee by Norfolk Southern for services while RSI does not pay a lease or license fee to Norfolk Southern. Norfolk Southern, not RSI, collects fees from and markets the facility to shippers of ethanol.
Most of these facts were not known to the City when the initial petition to the STB was filed, as Norfolk Southern refused the City's early requests to share operational information that was ultimately relied upon by the STB, including Norfolk Southern’s contract with RSI. It is only because of this case, along with the haul route litigation that is still pending in federal district court, that any of this material was exposed.
Norfolk Southern maintains that truck hauling permits issued by the City for transporting ethanol inside the City limits are preempted by Federal law, and that the City did not follow certain procedural steps in establishing a hazardous materials route. In July, the City filed its answer and counterclaim, maintaining it is regulating trucks on its streets, not rail operations; and that the half-mile path the trucks must take from the terminal is not subject to the type of procedures that Norfolk Southern contends.
On September 18, the City and Norfolk Southern appeared at a pre-trial conference in the U.S. District Court; the parties and the court agreed that the matter could be resolved on cross-motions for summary judgment. The City of Alexandria and Norfolk Southern filed their opening briefs and their cross-motions for summary judgment by midnight on November 24.
As required by the briefing schedule, the City filed reply papers on December 15; oral arguments will take place on December 18.
Two additional documents relate to the final issue discussed in the STB's order: The application of the Hazardous Material Regulations (HMR, codified at 49 CFR 105 et seq.) to this facility. These regulations govern the manner (rail tank car vs. permanent storage tank) and timing (period that laden tank cars may be stored at the facility) of operation for this facility. Norfolk Southern obtained an ex parte letter from the federal enforcement agency, the Pipeline and Hazardous Materials Safety Administration (PHMSA), stating that the railroad could off-load directly from rail tank cars to tank trucks. The PHMSA letter is conclusory and devoid of analysis. The City's contention, as supported by the text of applicable regulations, is that a railroad (the only entity not subject to local zoning) can only off-load to a permanent tank structure.
With respect to the federal HMR, enforcement authority is confined to the federal government, and case law makes clear that the City lacks enforcement authority, and hence lacks standing to file a formal challenge to the PHMSA letter, either with the agency or in federal court.
However, federal law allows the states to adopt the HMR as state law, and enforce the same substantive provisions as state regulations. Virginia has adopted the federal regulations verbatim. The Virginia State Police (and local law enforcement officers who have received special training) are authorized to enforce these Virginia HMR regulations. (See 9 VAC 20-110-90, 9 VAC 20-110-110.) Currently, certain fire marshals in Fairfax County have this authority; Alexandria's fire marshals do not. The City's Fire Department has been diligently pursuing the necessary training, but, unfortunately, the constraints engendered by the current budget environment have impeded this effort. Were the City, through its fire marshals, empowered to enforce the state HMR regulations, Alexandria would have standing to challenge the PHMSA's interpretation of the substantive HMR storage tank provisions, as well as to address locally the HMR storage timing issue.
Whatever the relative merits of local HMR enforcement as an overall budget priority, the City Attorney has determined that having this authority is critical to continuing the City's administrative and judicial strategy to regulate the transloading facility. Accordingly, he has requested that his staff work with the Fire Department to secure the necessary training for one or two fire marshals, using currently appropriated funding, so that the City can, as directed by Council, continue effectively and aggressively to pursue this matter.
Vice Mayor Redella S. "Del" Pepper and Councilman Ludwig Gaines, in collaboration with the Norfolk Southern Community Monitoring Group, developed qualifications and scope of review for the independent reviewer search. David LaBahn and Steven A. Jansen, former prosecutors with more than 32 years of combined legal experience, were selected to conduct the independent inquiry.
Their review was based on an examination of 2,500 pages of documents, e-mails, City letters, memos, timelines, and letters from the community; management reports; and interviews with City staff and key individuals. The review findings, presented to the City Council on December 13, show deficiencies and inactions by City personnel and their failure to notify City Council and the public of the proposed and actual use of the facility. The report also makes six recommendations to the City for improving communications, policies for handling special issues, accountability procedures, and community outreach and notification of critical issues. Note: The recommendations and observations contained in the report are based on the findings and opinions of the report authors. They do not represent a legal opinion, or legal counsel to the City.
Statement of the Mayor & City Council On June 16, 2008, Mayor William D. Euille and the Alexandria City Council released a statement concerning the City's actions regarding the Norfolk Southern ethanol transloading facility.
We share the concerns of many Alexandrians about the risks posed by the Norfolk Southern ethanol transloading facility.
We are also extremely disappointed in the inadequate communication provided to the community leading up to and after the opening of the operation.
The residents of Alexandria deserve better.
We have conducted a thorough review of the actions pertaining to the opening of the transloading facility. We have concluded there was a serious breakdown in internal and external communications by City staff.
City Manager Jim Hartmann and City Attorney Ignacio Pessoa have acknowledged and apologized for mistakes made during this process. The City Council is taking swift action to address this situation. We have instructed the City Manager to address deficiencies in his organization to ensure that these failures are never repeated. We have directed that materials related to this matter be made available to the public.
We also recognize that Norfolk Southern acted irresponsibly in locating this facility in a residential neighborhood near a school, opening the facility without appropriate notification to the City or the community, and operating the facility when the City was unable to adequately respond had there been a serious emergency at the site.
The City is moving forward on two simultaneous fronts—doing everything we can to shut down this facility and to protect the health and safety of our residents from any dangers posed by this facility.
Mayor William D. Euille, Vice Mayor Redella S. "Del" Pepper, Councilman Ludwig P. Gaines, Councilman Rob Krupicka, Councilmember Timothy B. Lovain, Councilman Paul C. Smedberg, and Councilman Justin M. Wilson
Documents, News & Media Documents, testimony, timelines, electronic and written correspondence, media coverage and other City materials related to the Norfolk Southern facility.
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