49 U.S.C. § 10908 — Regulation of solid waste rail transfer fa-

Page 439 TITLE 49—TRANSPORTATION § 10908 1 So in original. Probably should be followed by a comma. Section 10907, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1407, related to rail carriers entering into arrangements for joint use or ownership of spur, industrial, team, switching, or side tracks, and deprived Interstate Com- merce Commission of authority over such tracks when located in one State or over certain electric railways. See sections 10102, 10501, and 10906 of this title. Section 10908, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1407, related to discontinuing or changing interstate train or ferry transportation subject to State law. Section 10909, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1408, related to discontinuing or changing train or ferry transportation in one State. Section 10910, added Pub. L. 96–448, title IV, § 401(a), Oct. 14, 1980, 94 Stat. 1939; amended Pub. L. 97–468, title V, § 506(a), Jan. 14, 1983, 96 Stat. 2553; Pub. L. 103–272, § 4(j)(27), July 5, 1994, 108 Stat. 1369, related to railroad development. See section 10907 of this title. Section 10921, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1409, related to requirement for certificate, permit, or license. See section 13901 of this title. Section 10922, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1409; Pub. L. 96–296, §§ 5(a), 6, 34(a), July 1, 1980, 94 Stat. 794, 796, 825; Pub. L. 96–454, § 10(a), Oct. 15, 1980, 94 Stat. 2021; Pub. L. 97–261, §§ 6(a)–(c), (g), 7, 8, Sept. 20, 1982, 96 Stat. 1103, 1107, 1108; Pub. L. 98–554, title II, §§ 225(a), (b), 226(b), Oct. 30, 1984, 98 Stat. 2847, 2848, 2850; Pub. L. 100–17, title III, §§ 339, 340(a), Apr. 2, 1987, 101 Stat. 243, 245; Pub. L. 100–690, title IX, § 9111(g), Nov. 18, 1988, 102 Stat. 4533; Pub. L. 102–240, title III, § 3003(b), Dec. 18, 1991, 105 Stat. 2088; Pub. L. 103–272, § 5(m)(25), July 5, 1994, 108 Stat. 1378; Pub. L. 103–311, title II, § 207, Aug. 26, 1994, 108 Stat. 1686; Pub. L. 103–429, § 7(a)(4)(D), Oct. 31, 1994, 108 Stat. 4389, related to certificates of motor and water common carriers. See section 13902 of this title. Section 10923, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1410; Pub. L. 96–258, § 1(9), June 3, 1980, 94 Stat. 426; Pub. L. 96–296, §§ 10(a)(2), (3), 34(b), July 1, 1980, 94 Stat. 799, 800, 825; Pub. L. 97–261, § 13(a), Sept. 20, 1982, 96 Stat. 1114; Pub. L. 99–521, § 8(a)(1), (2), Oct. 22, 1986, 100 Stat. 2996; Pub. L. 103–311, title II, § 208, Aug. 26, 1994, 108 Stat. 1687, related to permits of motor and water con- tract carriers and household goods freight forwarders. See section 13903 of this title. Section 10924, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1412; Pub. L. 96–296, § 17(a), July 1, 1980, 94 Stat. 810; Pub. L. 97–261, § 14(a)–(c), Sept. 20, 1982, 96 Stat. 1114; Pub. L. 103–272, § 4(j)(28), July 5, 1994, 108 Stat. 1370, re- lated to licenses of motor carrier brokers. See section 13904 of this title. Section 10925, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1412; Pub. L. 96–296, §§ 10(e), 17(b), July 1, 1980, 94 Stat. 801, 811; Pub. L. 97–261, §§ 13(b), 22, Sept. 20, 1982, 96 Stat. 1114, 1123; Pub. L. 97–449, § 5(g)(6), Jan. 12, 1983, 96 Stat. 2443; Pub. L. 99–521, § 8(b), Oct. 22, 1986, 100 Stat. 2996; Pub. L. 103–311, title II, § 209, Aug. 26, 1994, 108 Stat. 1688, related to effective periods of certificates, per- mits, and licenses. See section 13905 of this title. Section 10926, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1413; Pub. L. 99–521, § 8(c), Oct. 22, 1986, 100 Stat. 2996, re- lated to transfers of certificates and permits. Section 10927, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1413; Pub. L. 96–296, § 29, July 1, 1980, 94 Stat. 820; Pub. L. 97–261, § 18(h), Sept. 20, 1982, 96 Stat. 1121; Pub. L. 98–554, title II, § 226(c)(2), (3), Oct. 30, 1984, 98 Stat. 2851; Pub. L. 99–521, § 8(d), Oct. 22, 1986, 100 Stat. 2996; Pub. L. 100–690, title IX, § 9111(h), Nov. 18, 1988, 102 Stat. 4534; Pub. L. 103–272, § 5(m)(26), July 5, 1994, 108 Stat. 1378, re- lated to security of motor carriers, brokers, and freight forwarders. See section 13906 of this title. Section 10928, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1414; Pub. L. 96–296, § 23, July 1, 1980, 94 Stat. 814; Pub. L. 97–261, § 15, Sept. 20, 1982, 96 Stat. 1114, related to temporary authority for motor and water carriers. Section 10929, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1415, related to temporary authority for previously ex- empt water transportation. Section 10930, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1415; Pub. L. 96–296, § 10(b), July 1, 1980, 94 Stat. 800; Pub. L. 99–521, § 8(e), Oct. 22, 1986, 100 Stat. 2996, related to limitations on certificates and permits. Section 10931, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1416, related to motor common carriers providing trans- portation entirely in one State. Section 10932, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1417, related to motor carrier savings provisions. Section 10933, Pub. L. 95–473, Oct. 17, 1978, 92 Stat. 1418; Pub. L. 99–521, § 8(f)(1), (2), Oct. 22, 1986, 100 Stat. 2996, 2997, related to authorizing abandonment of house- hold goods freight forwarder service. Section 10934, added Pub. L. 96–454, § 5(a)(1), Oct. 15, 1980, 94 Stat. 2013; amended Pub. L. 98–554, title II, § 227(a)(2), Oct. 30, 1984, 98 Stat. 2852, related to house- hold goods agents. See section 13907 of this title. Section 10935, added Pub. L. 97–261, § 16(a), Sept. 20, 1982, 96 Stat. 1115; amended Pub. L. 103–272, § 5(m)(27), July 5, 1994, 108 Stat. 1378, related to discontinuing bus transportation in one State. Section 10936, added Pub. L. 103–311, title II, § 211(a), Aug. 26, 1994, 108 Stat. 1689, related to limitation on State regulation of intrastate passengers by bus. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 1996, except as otherwise pro- vided in Pub. L. 104–88, see section 2 of Pub. L. 104–88, set out as a note under section 1301 of this title. § 10908. Regulation of solid waste rail transfer fa- cilities (a) IN GENERAL.—Each solid waste rail transfer facility shall be subject to and shall comply with all applicable Federal and State require- ments, both substantive and procedural, includ- ing judicial and administrative orders and fines, respecting the prevention and abatement of pol- lution, the protection and restoration of the en- vironment, and the protection of public health and safety, including laws governing solid waste, to the same extent as required for any similar solid waste management facility, as de- fined in section 1004(29) of the Solid Waste Dis- posal Act (42 U.S.C. 6903(29)) 1 that is not owned or operated by or on behalf of a rail carrier, ex- cept as provided for in section 10909 of this chap- ter. (b) EXISTING FACILITIES.— (1) STATE LAWS AND STANDARDS.—Not later than 90 days after the date of enactment of the Clean Railroads Act of 2008, a solid waste rail transfer facility operating as of such date of enactment shall comply with all Federal and State requirements pursuant to subsection (a) other than those provisions requiring permits. (2) PERMIT REQUIREMENTS.— (A) STATE NON-SITING PERMITS.—Any solid waste rail transfer facility operating as of the date of enactment of the Clean Railroads Act of 2008 that does not possess a permit re- quired pursuant to subsection (a), other than a siting permit for the facility, as of the date of enactment of the Clean Railroads Act of 2008 shall not be required to possess any such permits in order to operate the fa- cility— (i) if, within 180 days after such date of enactment, the solid waste rail transfer fa- cility has submitted, in good faith, a com- plete application for all permits, except Page 440 TITLE 49—TRANSPORTATION § 10908 siting permits, required pursuant to sub- section (a) to the appropriate permitting agency authorized to grant such permits; and (ii) until the permitting agency has ei- ther approved or denied the solid waste rail transfer facility’s application for each permit. (B) SITING PERMITS AND REQUIREMENTS.—A solid waste rail transfer facility operating as of the date of enactment of the Clean Rail- roads Act of 2008 that does not possess a State siting permit required pursuant to subsection (a) as of such date of enactment shall not be required to possess any siting permit to continue to operate or comply with any State land use requirements. The Governor of a State in which the facility is located, or his or her designee, may petition the Board to require the facility to apply for a land-use exemption pursuant to section 10909 of this chapter. The Board shall accept the petition, and the facility shall be re- quired to have a Board-issued land-use ex- emption in order to continue to operate, pursuant to section 10909 of this chapter. (c) COMMON CARRIER OBLIGATION.—No prospec- tive or current rail carrier customer may de- mand solid waste rail transfer service from a rail carrier at a solid waste rail transfer facility that does not already possess the necessary Fed- eral land-use exemption and State permits at the location where service is requested. (d) NON-WASTE COMMODITIES.—Nothing in this section or section 10909 of this chapter shall af- fect a rail carrier’s ability to conduct transpor- tation-related activities with respect to com- modities other than solid waste. (e) DEFINITIONS.— (1) IN GENERAL.—In this section: (A) COMMERCIAL AND RETAIL WASTE.—The term ‘‘commercial and retail waste’’ means material discarded by stores, offices, res- taurants, warehouses, nonmanufacturing ac- tivities at industrial facilities, and other similar establishments or facilities. (B) CONSTRUCTION AND DEMOLITION DE- BRIS.—The term ‘‘construction and demoli- tion debris’’ means waste building materials, packaging, and rubble resulting from con- struction, remodeling, repair, and demoli- tion operations on pavements, houses, com- mercial buildings, and other structures. (C) HOUSEHOLD WASTE.—The term ‘‘house- hold waste’’ means material discarded by residential dwellings, hotels, motels, and other similar permanent or temporary hous- ing establishments or facilities. (D) INDUSTRIAL WASTE.—The term ‘‘indus- trial waste’’ means the solid waste generated by manufacturing and industrial and re- search and development processes and oper- ations, including contaminated soil, nonhaz- ardous oil spill cleanup waste and dry non- hazardous pesticides and chemical waste, but does not include hazardous waste regu- lated under subtitle C of the Solid Waste Disposal Act (42 U.S.C. 6921 et seq.), mining or oil and gas waste. (E) INSTITUTIONAL WASTE.—The term ‘‘in- stitutional waste’’ means material discarded by schools, nonmedical waste discarded by hospitals, material discarded by nonmanu- facturing activities at prisons and govern- ment facilities, and material discarded by other similar establishments or facilities. (F) MUNICIPAL SOLID WASTE.—The term ‘‘municipal solid waste’’ means— (i) household waste; (ii) commercial and retail waste; and (iii) institutional waste. (G) SOLID WASTE.—With the exception of waste generated by a rail carrier during track, track structure, or right-of-way con- struction, maintenance, or repair (including railroad ties and line-side poles) or waste generated as a result of a railroad accident, incident, or derailment, the term ‘‘solid waste’’ means— (i) construction and demolition debris; (ii) municipal solid waste; (iii) household waste; (iv) commercial and retail waste; (v) institutional waste; (vi) sludge; (vii) industrial waste; and (viii) other solid waste, as determined appropriate by the Board. (H) SOLID WASTE RAIL TRANSFER FACILITY.— The term ‘‘solid waste rail transfer facil- ity’’— (i) means the portion of a facility owned or operated by or on behalf of a rail carrier (as defined in section 10102 of this title) where solid waste, as a commodity to be transported for a charge, is collected, stored, separated, processed, treated, man- aged, disposed of, or transferred, when the activity takes place outside of original shipping containers; but (ii) does not include— (I) the portion of a facility to the ex- tent that activities taking place at such portion are comprised solely of the rail- road transportation of solid waste after the solid waste is loaded for shipment on or in a rail car, including railroad trans- portation for the purpose of inter- changing railroad cars containing solid waste shipments; or (II) a facility where solid waste is sole- ly transferred or transloaded from a tank truck directly to a rail tank car. (I) SLUDGE.—The term ‘‘sludge’’ means any solid, semi-solid or liquid waste generated from a municipal, commercial, or industrial wastewater treatment plant, water supply treatment plant, or air pollution control fa- cility exclusive of the treated effluent from a wastewater treatment plant. (2) EXCEPTIONS.—Notwithstanding paragraph (1), the terms ‘‘household waste’’, ‘‘commer- cial and retail waste’’, and ‘‘institutional waste’’ do not include— (A) yard waste and refuse-derived fuel; (B) used oil; (C) wood pallets; (D) clean wood; (E) medical or infectious waste; or (F) motor vehicles (including motor vehi- cle parts or vehicle fluff). Page 441 TITLE 49—TRANSPORTATION § 10909 (3) STATE REQUIREMENTS.—In this section the term ‘‘State requirements’’ does not include the laws, regulations, ordinances, orders, or other requirements of a political subdivision of a State, including a locality or munici- pality, unless a State expressly delegates such authority to such political subdivision. (Added Pub. L. 110–432, div. A, title VI, § 603(a), Oct. 16, 2008, 122 Stat. 4900.) Editorial Notes REFERENCES IN TEXT The date of enactment of the Clean Railroads Act of 2008, referred to in subsec. (b), is the date of enactment of title VI of div. A of Pub. L. 110–432, which was ap- proved Oct. 16, 2008. The Solid Waste Disposal Act, referred to in subsec. (e)(1)(D), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94–580, § 2, Oct. 21, 1976, 90 Stat. 2795. Subtitle C of the Act is clas- sified generally to subchapter III (§ 6921 et seq.) of chap- ter 82 of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of Title 42 and Tables. PRIOR PROVISIONS For prior section 10908, see note set out under section 10907 of this title. § 10909. Solid waste rail transfer facility land-use exemption (a) AUTHORITY.—The Board may issue a land- use exemption for a solid waste rail transfer fa- cility that is or is proposed to be operated by or on behalf of a rail carrier if— (1) the Board finds that a State, local, or municipal law, regulation, order, or other re- quirement affecting the siting of such facility unreasonably burdens the interstate transpor- tation of solid waste by railroad, discrimi- nates against the railroad transportation of solid waste and a solid waste rail transfer fa- cility, or a rail carrier that owns or operates such a facility petitions the Board for such an exemption; or (2) the Governor of a State in which a facil- ity that is operating as of the date of enact- ment of the Clean Railroads Act of 2008 is lo- cated, or his or her designee, petitions the Board to initiate a permit proceeding for that particular facility. (b) LAND-USE EXEMPTION PROCEDURES.—Not later than 90 days after the date of enactment of the Clean Railroads Act of 2008, the Board shall publish procedures governing the submission and review of applications for solid waste rail transfer facility land-use exemptions. At a min- imum, the procedures shall address— (1) the information that each application should contain to explain how the solid waste rail transfer facility will not pose an unrea- sonable risk to public health, safety, or the environment; (2) the opportunity for public notice and comment including notification of the munici- pality, the State, and any relevant Federal or State regional planning entity in the jurisdic- tion of which the solid waste rail transfer fa- cility is proposed to be located; (3) the timeline for Board review, including a requirement that the Board approve or deny an exemption within 90 days after the full record for the application is developed; (4) the expedited review timelines for peti- tions for modifications, amendments, or rev- ocations of granted exemptions; (5) the process for a State to petition the Board to require a solid waste transfer facility or a rail carrier that owns or operates such a facility to apply for a siting permit; and (6) the process for a solid waste transfer fa- cility or a rail carrier that owns or operates such a facility to petition the Board for a land-use exemption. (c) STANDARD FOR REVIEW.— (1) The Board may only issue a land-use ex- emption if it determines that the facility at the existing or proposed location does not pose an unreasonable risk to public health, safety, or the environment. In deciding whether a solid waste rail transfer facility that is or pro- posed to be constructed or operated by or on behalf of a rail carrier poses an unreasonable risk to public health, safety, or the environ- ment, the Board shall weigh the particular fa- cility’s potential benefits to and the adverse impacts on public health, public safety, the environment, interstate commerce, and trans- portation of solid waste by rail. (2) The Board may not grant a land-use ex- emption for a solid waste rail transfer facility proposed to be located on land within any unit of or land affiliated with the National Park System, the National Wildlife Refuge System, the National Wilderness Preservation System, the National Trails System, the National Wild and Scenic Rivers System, a National Reserve, a National Monument, or lands referenced in Public Law 108–421 for which a State has im- plemented a conservation management plan, if operation of the facility would be inconsistent with restrictions placed on such land. (d) CONSIDERATIONS.—When evaluating an ap- plication under this section, the Board shall consider and give due weight to the following, as applicable: (1) the land-use, zoning, and siting regula- tions or solid waste planning requirements of the State or State subdivision in which the fa- cility is or will be located that are applicable to solid waste transfer facilities, including those that are not owned or operated by or on behalf of a rail carrier; (2) the land-use, zoning, and siting regula- tions or solid waste planning requirements ap- plicable to the property where the solid waste rail transfer facility is proposed to be located; (3) regional transportation planning require- ments developed pursuant to Federal and State law; (4) regional solid waste disposal plans devel- oped pursuant to State or Federal law; (5) any Federal and State environmental protection laws or regulations applicable to the site; (6) any unreasonable burdens imposed on the interstate transportation of solid waste by railroad, or the potential for discrimination against the railroad transportation of solid