By: Wolf von Baumgart, Staff Writer
In light of increased rail shipments of Canadian crude oil to the Delaware City refinery, the Delaware General Assembly has passed SB 135, designed to limit “non-essential” locomotive idling between the hours of 8pm and 7am. Fines would range from $5,000 to $10,000 for a first offense, with $10,000 to $20,000 fines for repeat violations. It is not clear to what degree that the statute would actually be enforced if Governor Jack Markell signs it into law.
The controversy pits the quality-of-life interests of nearby residents against the interests of Delaware’s railroads and petroleum industry in the greater context of economic and environmental concerns. Additionally, a complex legal technicality has emerged : EPA/federal preemption of state regulation of locomotive environmental impact, largely due to the interstate nature of railroads and the existing body of federal law , regulation, and judicial precedent.
The Norfolk Southern Corporation on August 4, 2015 has filed a motion for an expedited declaratory order with the U.S. Department of Transportation’s Surface Transportation Board (STB) on the grounds that the bill’s locomotive idling restrictions are preempted by federal law.(specifically, the Interstate Commerce Commission Termination Act of 1995).
The bill’s sponsors, State Senators McBride Hall-Long, Poore, and Townsend; and Representatives . Longhurst, M. Smith, Viola, Baumbach, Jaques, J. Johnson, Mulrooney and Osienski contend that the quality of life of nearby residents was being degraded by increased locomotive idling.
The bill was introduced in the Senate on June 11th and cleared the House after 9 p.m. on the closing June 30th night of the 2015 legislative session. It has not reportedly been sent to Governor Jack Markell for his signature and it is not clear as to whether he will sign it, in light of federal legal complications.
In all, 11 opposition votes were cast including Representatives Short, Briggs- King , Collins and Yearick on the grounds that they thought that the legislation was hastily considered and more information was needed before a more effective decision could be made.
Attempts to contact the Governor’s Office, the Delaware Department of Natural Resources and Environmental Control and a notable Delaware environmental advocate for comment were unanswered to date. The Norfolk and Southern Corporation is reportedly in the process of preparing a detailed statement. The Midlantic Dispatch will write a follow-up article as events develop.
Preliminary analysis of the bill indicates that it is subject to legal interpretation of the term “nonessential” as a variety of idling activities are excepted in the body of the text.
The text of SB-135 is available at: http://legis.delaware.gov/LIS/lis148.nsf/vwLegislation/SB+135/$file/legis.html?open
A copy of Norfolk Southern’s STB filing is available at:http://www.stb.dot.gov/filings/all.nsf/ba7f93537688b8e5852573210004b318/0417ca0597af7c9085257e97004efcd3?OpenDocument