(The following story by Richard Pearsall appeared on the Courier-Post website on March 19.)
HAINESPORT, N.J. — Ask Darryl Caplan about his business here and he responds immediately, “We’re a short line railroad.”
But what the Hainesport Industrial Railroad does primarily is handle trash, not freight or passengers. Operating out of a warehouse in the Hainesport Industrial Park since September, it takes construction and demolition debris off trucks and reloads it into rail cars, which are then pushed a few hundred yards down a siding to Conrail and off through Moorestown and Camden to Ohio.
Ordinarily such a trash transfer facility would be subject to strict state and local control.
But because federal law preempts state and local regulation when it comes to railroads, this and a growing number of similar facilities in New Jersey have been able to open and operate without obtaining state or local permits.
Steve Thomas, whose home on Mount Laurel Road backs up to the transfer station, finds the situation intolerable and has been waging a kind of one-man war against his unwanted neighbor.
A 10-foot wall separates the transfer station from Thomas’ yard, but piled up behind the wall at a height of more than 30 feet, are steel containers used to transport trash.
Some of them are marked “Hazmat,” short for hazardous materials. They are empty containers that have been cleaned off site and are being stored there, Caplan said.
Thomas, who keeps an eye on the transfer station by climbing a ladder to a tree perch above the highest containers, has filed numerous complaints with the DEP and the county board of health. He’s worried about lead in old paint, asbestos in old building materials, among other things, and says that “when the wind blows, all this stuff comes over into my yard. I find paint chips all over the place.”
To date, however, neither the DEP nor the county board of health have filed any violations against the transfer station.
“He’s filed no less than 40 complaints and has caused I don’t know how many inspections, all of which have come back finding nothing,” Caplan said last week. “Don’t you think someone, somewhere would have caught me if violations had taken place?”
He does not need any permits, Caplan said, but he “plays by the rules” because its good business to do so. Last month a federal judge, citing the federal preemption, overturned an effort by the state Department of Environmental Protection to crack down on a string of rail transfer stations in North Jersey.
The DEP is pondering an appeal and U.S. Sen. Frank Lautenberg, D-Cliffside Park, has introduced legislation designed to close what he considers a loophole in federal law and return regulation of such facilities to the state. The problem with the federal preemption, says Carter H. Strickland Jr., an attorney for the Rutgers Environmental Law Clinic, is “there’s a federal shield, but no federal sword. No one in the federal government is looking at these facilities, so there’s a regulatory gap.”
The federal preemption is rooted in the idea that railroads need to be free of local interference in order to serve interstate commerce.
Theodore Costa, the attorney for Hainesport, has no quarrel with that. It’s the “ancillary” activities by companies that do not own a locomotive or rolling stock that bother him.
“Its no secret that many of those engaged in running these transfer stations are trying to wrap themselves up in a railroad exemption so they don’t have to comply with local regulations,” Costa said.
Hainesport filed suit against Hainesport Industrial Railroad last year after it got wind of the transfer station plans, noting that the site is “a nearly triangular-shaped parcel, bordered on two of the three sides by residential housing,” that such a facility is prohibited by local zoning and that it would “present a danger to the health, safety and welfare of the residents of Hainesport.”
The township withdrew the suit, however, after concluding it was likely to lose because of federal preemption and working out an agreement with Caplan under which the company agreed not to handle municipal garbage and agreed to pay the township a 50-cent per ton “host benefit” fee.
“We made what we thought was a reasonable compromise,” Costa said. “In retrospect it doesn’t look so bad,” he said.