STB Rejects Petition Seeking to Preempt State Regulation of Solid Waste Collection

On February 2, 2022, the Surface Transportation Board (“STB”) rejected a petition from a waste collection company seeking to use the preemption provisions of the ICC Termination Act to override how Washington State assigns collection territories for solid waste.  Slover & Loftus represented Waste Connections before the STB in opposing the petition for declaratory order and coordinated with local counsel regarding the appeal of a related order of the Washington Utilities and Transportation Commission (“WUTC”) in Washington state court.

In July 2020, Waste Connections petitioned the WUTC to order a competitor, Waste Management, to stop collecting solid waste in Waste Connections’ assigned territory.  The WUTC rejected Waste Management’s argument that the entire transportation, including the collection of waste by truck, fell within the STB’s exclusive and preemptive jurisdiction under 49 U.S.C. § 10501(b) because a later leg of the transportation occurred on rail. 

On May 5, 2021, Waste Management appealed the WUTC decision to the Washington State Superior Court.  Waste Mgmt. of Wash., Inc. v. Wash. Utils. & Transp. Comm’n, No. 21-2-00870-34 (Thurston Cnty. Super. Ct. filed May 10, 2021).  Waste Management concurrently petitioned  the STB to issue a declaratory order stating that the Washington regulatory scheme was preempted.  Waste Mgmt. of Wash., Inc.—Pet. for Declaratory Ord., STB Finance Docket No. 36511 (filed May 5, 2021).  The Superior Court denied Waste Management’s motion to stay the court case pending STB resolution of the petition for declaratory order and transferred the matter to the Washington Court of Appeals.

On February 2, 2022, the STB served a decision denying Waste Management’s petition for declaratory order.  The STB agreed with Waste Connections that there was no need for the STB to exercise its discretionary authority, as the preemption issue was pending before the state court, which had concurrent jurisdiction to decide § 10501(b) preemption questions in the first instance.  The STB noted that the Superior Court had already denied Waste Management’s motion to stay the WUTC order pending an STB ruling. 

On November 8, 2022, Division II of the Washington Court of Appeals affirmed the WUTC’s summary determination order.  The Court’s opinion concluded that “Congress did not intend to preempt state government regulation of solid waste, which has only a remote and incidental effect on rail transportation.”  Waste Mgmt. of Wash., Inc. v. Wash. Utils. & Transp. Comm’n, No. 56291-II (Wash. Ct. App. Nov. 8, 2022).

Questions regarding this matter or rail transportation issues generally may be directed to Robert D. Rosenberg or any other Slover & Loftus LLP attorney.