City officials don’t usually issue permits to businesses that don’t request them. But almost nothing about Norfolk Southern Railroad’s ethanol-loading station on the West End has taken place under normal circumstances.

First the company began operations in April even though railroad officials knew the city did not have the proper firefighting equipment to battle an ethanol fire. Then, when City Council members found out about the facility in May, Mayor Bill Euille vowed to do everything in his power to shut down operations at the Van Dorn Yard. By June, city officials were ready to restrict the number of trucks loaded with ethanol allowed to use city streets. There was only one problem: Nobody applied.

"Most companies are not so obdurate as to refuse to apply for the necessary permits," said City Attorney Ignacio Pessoa. "But this was a case where we wanted to impose conditions, so we went ahead and issued the permit."

The "haul-route permit" that was unilaterally issued on June 4 restricted the roads used by the ethanol-laden trucks, limiting the hours of operation from 7 a.m. to 7 p.m. and restricting the number of daily trucks to 20. A few days later Norfolk Southern filed a federal lawsuit arguing that the city authority is preempted by federal laws regulating railroads, rail safety and railroad transportation of hazardous materials. After hearing motions for summary judgment on Dec. 18, Judge James Cacheris announced that he would be ready to rule on the case in February in a case that will likely have national significance.

"Other municipalities like Alexandria might decide to issue haul permits," said Norfolk Southern Vice President David Lawson during an October deposition in the case. "Then all of a sudden this cascading effect of haul permits could have very negative and detrimental effect on interstate commerce for the movement of ethanol or any other potentially hazardous material."

NORFOLK SOUTHERN has operated in Alexandria for more than a century, and until recently the Van Dorn Yard was used as a "pig facility" — railroad slang for an operation piggybacking containers from rail to trucks or vice versa. But as early as 2006, railroad officials alerted city officials that they wanted to construct an ethanol loading station where liquid ethanol would be removed from rail cars and loaded into tanker trucks less than 1,000 feet from an elementary school. Although the "pig" facility never needed a haul-route permit, city officials say the trucking companies transporting highly flammable hazardous materials required oversight if they wanted to use city roads.

"We’re really regulating their customers, not the railroad," said Eric Pilsk, who represented the city in federal court. "The city has never once tried to padlock this facility."

In court, attorneys representing Norfolk Southern argued that limiting the operation to 20 trucks a day would place an unreasonable burden on interstate commerce by creating a bottleneck at the gate of the Van Dorn Yard. Because the city’s authority to regulate railroad operations is preempted by federal law, they argued, the city’s attempt to issue a haul-route permit limiting the behavior of tanker trucks exiting the railroad facility should be denied. Regulating trucks, Norfolk Southern maintained, created an indirect attack on the economic viability of the facility.

"These regulations are for the purpose of closing down the transloading facility," said Gray Bryant, a Norfolk attorney representing the Fortune 500 company. "They really don’t have anything to do with the safety of city streets."