April 6, 2022 742 PM
PRESIDIO — At a council meeting on March 21, the passage of a hazmat ordinance banning the transloading of hazardous materials over 5,000 gallons within city limits was met with applause. Hot on the heels of a controversial proposed diesel transport operation, the ordinance provided some relief to locals concerned about the safety of the plan. But at Monday night’s meeting, the mood in the Presidio Activities Center was tense as City Attorney Rod Ponton explained that not only would the ordinance require multiple public readings to be considered official, but that the ban on transloading was likely illegal.
The ordinance — which also provided a legal framework for someday restricting the transport of hazmat bound for the Presidio International Bridge to a designated route around the city — had been in the drafting stages for months, but came to a public vote at the March 21 meeting. The sudden intervention from Ponton — which was met with some backlash — pushed council members to revise the ordinance while seeking legal counsel on the matter.
Many local concerns about health and safety in response to the proposed diesel operation center around the process of transloading, or the transfer of materials from one form of transportation to another — in this case, the diesel will be sent from Houston to the Fort Worth area via pipeline, then via train to Presidio, where it will be transloaded onto tanker trucks and sent across the bridge to Chihuahua City. The plan — a collaboration between Strobel Energy Group, Texas Pacifico, and a yet unnamed trucking company — would see 75 to 150 trucks full of diesel fuel make their way through town each week.
The plan is a cost-saving measure: investors hope to save money and drive time by routing fuel bound for Chihuahua City through Presidio instead of El Paso. In return, Presidio is hoping to reinvigorate its rail corridor, dormant for almost 14 years. At Monday’s meeting, City Administrator Brad Newton alluded to the fact that a rail inspection station allowing for cross-border trade could be complete by 2023. Until then, the transloading scheme could be a way for the city to see rail traffic return to Presidio before a complete international rail bridge.
But Ponton argued a transloading ban impeded railroad operations, and that attempts to restrict railroad operations could run afoul of several legal precedents.
“Lots of places got started on the railroad, so the railroad has all sorts of power,” Ponton explained. In 1995, Congress passed the ICC Termination Act (ICCTA), which established that modes of interstate ground transportation — chiefly, railways — ought to be regulated by the federal government. Since 1995, multiple court cases have cited the ICCTA to limit local and state governments’ power to regulate the railroads that run through them.
Ponton referenced two court cases from the Fifth Circuit to explain how that might impact Presidio. In Elam v. Kansas City Southern Railroad Co, filed in 2011, the court ruled in the railroad’s favor against a woman who had sought damages from Kansas City Southern after she was involved in a car accident with a train at a road crossing. She claimed that the train shouldn’t have been there in the first place, due to her state’s anti-blocking laws regulating the length of time rail cars can block a road. The court found otherwise, and the ruling has since been used to limit local anti-blocking and noise ordinances.
At Monday’s meeting, members of council asked Ponton for clarification on why the transloading ban could be interpreted as impeding the railroad, when a company separate from the railroad oversees the process. “The law is so all-encompassing and clear cut,” Ponton said. “In other words, smart cities don’t even try. You can’t regulate the railroad, and you can’t regulate transloading.”
Court rulings specifically regarding transloading are few, but in 2012, the Fifth Circuit ruled in Texas Central Business Lines v City of Midlothian to strike down a city’s ordinances limiting a frac sand transloading operation. While this case found that this particular instance of transloading was an extension of the railroad’s activities and couldn’t be regulated by the city, the court’s ruling made sure to note that “not all transloading involving rail cars and tractor-trailer rigs constitutes ‘transportation by rail carriers.’” — in other words, there could be a legal gray area.
Councilmember Nancy Arevalo wanted more information on how the international nature of the plan could make things even more complicated. “Trucks coming in from Mexico are going to pick up the material,” she said. “I don’t understand how that has anything to do with our federal government or the railroad.”
Vicky Carrasco, who has been tasked by the City of Presidio with leading a series of workshops mediating between diesel transloading stakeholders, agreed that many questions remained unanswered. “Presidio is in a very unique location and position, so there really isn’t a precedent for this type of issue,” she explained. “TxDOT’s involved, the railroad’s involved. Our port of entry is very different from any other in the state of Texas. I totally understand how this might make you feel blindsided, but we don’t want to put ourselves in a situation where the city could be sued.”
Multiple council members were upset that the intricacies of railroad law were not brought to their attention sooner by Ponton, the city’s official legal counsel. “I have personally done a lot of research, and I have sent you information to see if I’m on the right path,” said Councilmember Arian Velázquez-Ornelas. “I feel I have not gotten the right guidance. I hope that doesn’t feel personal, because it’s not.”
“This has happened multiple times,” said Mayor Pro Tempore John Razo. “This is hurting us, because our citizens are waiting for our response. If [Strobel and Texas Pacifico] get started, we can’t stop them.”
Presidio Municipal Development District Executive Director Jeran Stephens had preemptively hired outside counsel to help guide her organization’s stance on the issue. “I’ve spoken with our attorneys, and they seem to think the transloading ban in and of itself is not a violation of federal law,” she explained. “Though it involves the train, we’re not telling the train they can’t haul whatever they want to. We’re telling outside companies that they can’t transload hazmat from that train onto a truck within city limits and drive it through town.”
Council ultimately voted to approve an edited version of the ordinance that adds “an enforcement date, supersedence and severability” and strikes language that explicitly mentions the railroad. The city must print the new ordinance in the newspaper and wait 30 days before it can formally take effect. In the meantime, Presidio City Council moved to seek secondary legal counsel “regarding future ordinances.”
In the meantime, Ponton will assist the city in working with TxDOT to explore the possibility of a freight bypass for the city of Presidio. Council members hope that language in the existing ordinance limiting transport of hazardous materials on city streets will eventually be amended to relegate shipments of hazmat to a designated hazmat route.
Joaquin Rodriguez, who has family roots in Presidio, voiced his support for the ordinance over Zoom. “Let’s not forget that the whole reason this issue has now come up for the council is because a company wants to save money, and to do that at the expense of the community,” he said. “I would encourage the council to continue forward and then backtrack if needed. It’s better to go forward than to fall short.”