Who knew what when and what did they know? Or was it more a matter of not comprehending the facts rather than not knowing them?

Those questions appear to be at the core of the ethanol transloading controversy with Norfolk Southern Corporation and their facility in Alexandria's West End between Eisenhower Avenue and Duke and Picket streets. Its proximity to Cameron Station, Summers Grove and Tucker Elementary School have raised not only safety concerns but also legal questions as to a possible solution.

As a way to address the latter, City Attorney Ignacio Pessoa has filed a petition with the Surface Transportation Board (STB), successor to the Interstate Commerce Commission, seeking a declaratory order making the transloading facility and its operation subject to the city's special use permit process — something the railroad claims is not applicable under federal laws covering "transportation by rail carriers."

The petition maintains that "the ethanol transloading facility in the City of Alexandria operated by RSI Leasing, Inc., on property apparently leased from Norfolk Southern Railway Company does not constitute "transportation by rail carrier," and that the City's zoning and other regulatory authority is therefore not preempted."

It does not dispute the fact that the railway company "owns the property on which the facility is operated." However, the petition does maintain that "the facility commenced and is being operated by RSI and not by Norfolk Southern. As a result, the operation of the facility is not subject to preemption because it is being operated by a private, non-rail carrier operator."

What triggered this action by Pessoa was a tense and heated May 27 City Council meeting when Alexandria Mayor William D. Euille and Council members publicly took a Norfolk Southern representative as well as City Manager James Hartmann and Pessoa to task for supposedly not keeping the city and its residents, particularly those in the West End, in the dark about the transloading facility being underway. Both Hartmann and Pessoa admitted to a breakdown in communications during that meeting, according to Euille.

That was followed by a joint statement news release from Euille and City Council, issued June 16, apologizing to Alexandria residents for "inadequate communication provided to the community leading up to and after the opening of the operation." It also placed the blame for that communications breakdown directly with Hartmann and Pessoa.

It further stated, "City Council is taking swift action to address this situation." The petition to the STB was filed Tuesday, June 17.

THE RELEASE goes on to state, "Norfolk Southern acted irresponsibly in locating the facility in a residential neighborhood near a school, opening the facility without appropriate notification to the City or the community, and opening the facility when the City was unable to adequately respond had there been a serious emergency at the site."

However, as far back as Sept. 18, 2006, in a letter addressed to Rich Josephson, deputy director, Alexandria Department of Planning and Zoning, William A. Galanko, vice president-law, Norfolk Southern Corporation, in responding to an Aug. 25, 2006 inquiry from Josephson about the transloading facility, stated, "Since June 19, 2006, Norfolk Southern has met with, and provided facility plans to various Alexandria officials."

Those officials included Euille, Hartmann, Deputy City Manager Mark Jinks "as well as D. T. Perry and Art Dahlberg from the Alexandria Fire Department," according to Galanko's letter. "We have integrated all modifications proposed by Alexandria fire officials to address perceived safety and fire concerns, including but not limited to special spill containment facilities, additional fire hydrant locations, foam capability, and additional portable fire extinguishers," Galanko stated.

"The facility will be fenced, gated and secured, and will be operated in a safe manner in conformance with any applicable health and safety requirements," he said. But, he also insisted that the STB jurisdiction over "Transportation by rail carriers is exclusive" and therefore not subject to local zoning regulations and processes.

"Application of this section (of the federal statute) preempts Alexandria's zoning statute to the extent that it would require any permit prior to the modification or operation of the facility," Galanko noted in his letter written 20 months prior to the May 27, 2008 Council meeting.

He also maintained that the preemption of state and local zoning laws and permit requirements applies to "the construction of rail facilities to be operated by or on behalf of rail carriers." Norfolk Southern maintains RSI is operating the transloading operation "on behalf" of the railroad.

THE FACT THAT RSI is operating the facility under an agreement with Norfolk Southern goes to the heart of the City's petition to the STB. It claims this nullifies the federal exemption of rail carriers.

"We don't know the actual wording of the arrangement between Norfolk Southern and RSI because they have not shared that with us. But, if the railroad has surrendered control of the property to a third party we believe this negates the exemption," said Christopher Spera, assistant City Attorney.

"Our contention is that it is who controls the operation and not who owns the land on which the operation is taking place that determines if it is subject to our zoning laws," Spera said.

That was reiterated by Euille. "If the railroad has contracted out this operation then they are not entitled to the federal protection. They can't have it both ways," he said.

"It is my understanding that the regulations say that when this material comes in it must be unloaded and moved out. You can't have fully loaded rail cars waiting to be unloaded— that's against regulations," Euille said.

"I've heard the argument that there are a lot of dangerous fuels and materials moving all around us everyday. But, these rail cars are standing fully loaded at a site. That's the difference," he said.

In an article published in the January 2008 issue of the Greater Lansing Business Monthly, written by Jo Anne Paul-Stanton, entitled "Going Green with Freight Offers Benefits," she delves into the growing business of transloading ethanol by RSI owner Bob Tuchek whom she interviewed in 2007.

The article states that ethanol shipping by rail and off loading into tank trucks "has made RSI the largest bulk transloader of ethanol in North America." Tuchek stated in that article, "The trend (tranloading ethanol) also has prompted construction of the newest terminal in Alexandria, Virginia, which will open early next year and be dedicated exclusively to the shipment of ethanol."

Tuchek further stated, "The cheapest way to get ethanol from the heartland of the United States into the consuming markets and to the gasoline storage facilities is via rail. We have the terminals, and they're in the proper markets."

It is this fact, that RSI and not Norfolk Southern is the sole operator of this transloading facility, that Pessoa states in his petition to the STB removes the federal protective cloak from the operation. Since the transloading operation commenced on April 9, 2008 no Norfolk Southern employees have been involved "in conducting or supervising the off-loading," according to the City's petition.

However, if the STB comes down on the side of Norfolk Southern, then the petition seeks an order from the Board directing the railroad "to comply with federal regulations governing the transloading of ethanol by railroad." That states, according to Pessoa, that "ethanol from a rail tank car be off-loaded to a permanent storage tank, with the capacity to hold the rail car's entire content."

Each rail car carries an average of 29,000 to 30,000 gallons of ethanol. The tank trucks to which their cargo is off loaded have a capacity of approximately 10,000 gallons each. This requires an estimated three tanker trucks to off-load one rail tank car.

There was no indication as to when the Board will decide upon the City's petition. However, as Euille stated in his news release, "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."