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UPTON, Mass. — A group that supports short rail lines filed a letter with the Surface Transportation Board on Tuesday supporting the Grafton & Upton Railroad’s plans to maintain its wood pellet facility.
The American Short Line and Regional Transportation Association, a non-profit group that represents about 450 small railroads around the country, urged the federal agency to support the G&U‘s case.
“Because of the differences inherent in moving commodities, especially bulk commodities, between one mode of transportation and another, it is frequently necessary to repackage materials during transit,” said Keith T. Borman, vice president and general counsel for the association in a letter dated Feb. 25.
“Because it is integral to the transportation process but not to the manufacture of the commodity itself, ASLRRA is concerned that for the Board to decide otherwise would both be illogical and an unfounded further restriction on the beneficial role transloading plays in efficient and cost effective freight transportation.”
He closed by saying the Grafton & Upton Railroad is a “legitimate transloading service beneficial to the shipping public and in conformity with the prescriptions set forth by the Board in previous transloading cases."
The STB is weighing arguments from the Grafton & Upton Railroad and seven Upton residents before deciding if a wood pellet facility on its property is exempt from state and town laws. The residents have argued that the repackaging of wood pellets does not fall under the federal definition of "transportation."
On Jan. 23, the board issued a “declaratory order” to hear the case brought by the residents who claimed on Aug. 1, when they filed the petition, that the bagging, storing and transloading being conducted by the railroad at its 25 Maple Ave. location is not transportation by a rail carrier as defined by the Interstate Commerce Act. If the board succeeds, Upton can regulate the operation under its zoning bylaws.
The STB has not set a date on when it plans to rule on the matter.
This is not the only legal case facing the Grafton & Upton Railroad. The town of Grafton asked a U.S. Federal Court judge to decide whether the railroad's plans to construct a propane transfer terminal falls under federal pre-emption rights, meaning federal rules rather than local would govern the operation. That trial was argued in January and the judge has not set a date on when he will rule.
Comments (10)
It seems to me that a careful reading of case law shows that it is still ambiguous on the point of preemption with regard to various kinds of industrial development by or near railroads. Otherwise the STB would not have accepted the petition of the citizens for a declaratory judgment with the intent to rule on the merits of the case in Upton and most likely in Grafton, too. The G&U in its brief to the STB presented many reasons why it should not accept the petition and they were all overruled. The STB has the final word on this case and it does not seem to think that Dana's claim to preemtion is as obvious as the G&U and its spokespersons would have us believe.
I am amazed at the detailed information about what Dana and the G&U are planning to do if and when they lose the claim to preemption. Where do you come by that?
G&U and its spokespersons seem to presume that what it claims by way of preemption for itself and its industrial clients is automatically "well settled and it really doesn't matter" any longer. So why continue the discussion?
Once again, let us stay on the point. It is about factory installations and industry. If industrial companies are allowed to construct plants, especially in sensitive areas surrounded by schools, residentces, retirement homes, watershed and drinking supplies, disregarding zoning, without permits or adherence to building codes and so forth, there is no way to limit what can be built and done there. This is not just about what is already there, but what is in the plans for the future and that affects every citizen of the town and region. As I said, this is the elephant in the room. Everyone in town needs to be better informed. Perhaps the local newspaper might step up and help.
Actually the issue of transload operations is well settled and it really doesn't matter if we want to call it "rampant, uncontrolled industrial development." The law is settled on that issue and anyone who thinks otherwise is simply not spending enough time reading the case law. Congress clearly intended to advance the national economic interests of the country by overriding local interests who believe it is more important to stop industrial development, rampant, uncontrolled or otherwise. In the Upton case the issue of whether transferring bulk wood pellets into bags to facilitate transport via dry van trailers is unsettled. However, even if the STB rules that the bagging operation is not preempted by the ICCTA, it really doesn't matter because all that will happen is that the wood pellets will be transloaded in bulk form into pneumatic tractor trailer trucks that will then transport them to a bagging facility. Accordingly the only thing that might change is the type of trailer truck rolling through town. The trains will not stop rolling. This is why if anyone is actually serious about stopping the transload, if anyone truly believes that transload operations degrade the quality of life of the communities in which they are located, the ICCTA needs to be changed. I'm sure that Senator Warren is anxiously waiting to receive the calls of everyone who would put their own local interests ahead of our collective national economic interests that are advanced when more freight moves via rail than via truck. This is why the ASLRRA is getting involved. As the trade group for America's short line and regional railroads, they understand how to speak to the national economic and environmental benefits that are created by transload operations. This is why Congress listened and created the ICCTA and this is why President Clinton signed it into law in 1995.
The STB will determine if processing woodchips for retail sale is an "integral part of a railroad's interstate operation". It may be that the GUR owner has pushed the envelope too far. Its not a slam dunk either way.
BlueGreen has the facts straight. It is the STB which will decide if the rampant, uncontrolled, unregulated, industrial development in the G&U RR yard in the middle of Upton is preempted or not. It is not necessary for Congress to rewrite the law for the STB to rule whether the Dana processing plant is or is not an "integral part of a railroad's interstate operation."
Ever wonder why the Upton Town Crier does not print a full and honest report on both sides of the debate about this issue, but rather consistently comes down solidly in favor of whatever claims the G&U makes? The Town Crier is an embarassment for not helping the citizens of Upton become truly informed about this extremely serious issue pertaining to the town's welfare and future.
Respectfully, it is important that we all keep a few facts clear. The Federal law that is at issue here is the Interstate Commerce Commission Termination Act (ICCTA). The applicable regulations are found at 49 USC 10501(b). As stated in case of CSX Transportation v. Georgia Pub. Serv. Commision 994 F. Supp. 1573, 1581 (N.D. GA 1996), "it is difficult to imagine a broader statement of Congress' intent to preempt state regulatory authority over railroad operations" than is contained in Section 10501(b). Also, the Surface Transportation Board has previously ruled that "zoning ordinances are preempted as to facilities that are an integral part of a railroad's interstate operations." Accordingly it is understandable why the G&U believes that local zoning laws do not apply to its transload operations. As I see it, the only way that railroad transload operations will be curtailed is by a change to the ICCTA and that means that our representative in Congress and our Senators need to support a change. Has anyone noticed how quiet Senator Warren has been on this issue?
The Upton Board of Health letter is an embarrassment. The BOH was elected to protect the citizens of Upton not pander to the railroad. Do they think no one is watching? I wish the press would investigate to see if the town “cooperation” is being coerced to get a break on the cost of the landfill cleanup. I would rather pay higher taxes for the cleanup than bow to likes the GUR owner. Not an abutter.
Sarcasm and impugning the motives of the citizens of the town does not advance the discussion. Stick to the issue. Either the growth and development of industrial plants on the G&U property is regulated by the town and state government or it is not. The STB will decide.
If industrial building and operation is not preempted, then the companies operating there would need to get business licenses, approval of the town planning committee, get building permits, adhere to zoning requirements and all the other conditions of any business which wants to construct buildings and operate in the town. This unregulated uncontrolled development in the middle of Upton is the elephant in the room. It will only get bigger and more obnoxious. Stop ignoring it. What is so bad about requiring Dana, Nexeo, Bright Horizons and possibly others to obey the law just like everybody else who lives and works in town?
Federal law, through the FRA, does not regulate any of these local issues. If the industries are not preempted, then the town can exercise control and oversight of location, construction and operation so that both the railroad's interests and the interests of the citizens of the town are respected. That is one of the functions of town government.
As it is, claiming preemption, the railroad and its allied industries have free hand to do whatever they wish on that property, disregarding the interests of their neighbors, even going so far as to "bury a town that resists."
Once again, confusion and disinformation are being served up in the guise of rational discussion. The amicus brief filed by the ASLRRA with the STB misses the point of the problem in Grafton and Upton and offers more darkness than light. The same can be said of the completely gratuitous and misleading letter sent to the STB by the Upton BOH extolling the merits of the RR. There is no attack on the Grafton and Upton Railroad per se nor has there ever been an attack. The RR is well within its federal rights to run trains up and down the rails without local interference or regulation of any kind from any town or state.
The point of the beleaguered citizens of Upton and the BOS of Grafton is to inquire of the STB whether the unregulated, uncontrolled, unsupervised industrial development in the middle of town and outside any local building codes, zoning provisions, planning boards, etc. is preempted by the RR. Does the federal law of preemption envision protecting the building of industrial enterprises which exceed town regulations with respect to zoning, building permits, size, hours of operation, noise, danger, etc.?There are at least three major corporations (Dana, Nexeo, Brighter Horizons) currently doing business on the Upton site. What exactly are they doing? Who is overseeing them? In addition, there is rapidly increasing tanker truck traffic carrying hazardous materials through the center of Upton. Is this cause for anyone's concern?
This is not a question of attacking the RR, nor is it simply a case of NIMBY. This is about what kind of towns Upton and Grafton are going to become. Will they keep their residential character or become centers of unregulated industrial development?
That this RR activity is not friendly to the towns can be inferred from the statement by the head.of the G&U who is reported to have said to [Grafton]Assistant Town Administrator Kevin Mizikar the town “started a nuclear war, that he intends to win, that all bets were off, and that he intends on burying towns that were not working with him.” Is this what ASLRRA and the Upton BOH are lobbying for?
The residents around the railroad property in Upton have always had a problem with the G&U. The telephone poles then the train horn the pellets the construction the tank cars the engines idling and a few other things. I am not saying it's a railroad deal with it. But when is enough enough. What do all these people want all industry to be located in some far off land so everything can be nice and quiet in their little world. Meanwhile prices for goods sky rocket due to shipping costs. I am unfamiliar with the history of that area but did no one ever pitch a fit when Upton Fuel was still in business, or the salt cars.
The ASLRRA is a railroad industry lobbying and trade group. Among its local Massachusetts members are Providence & Worcester Railroad Company, Pioneer Valley Railroad Company, Pinsly Railroad Company, Massachusetts Central Railroad Company and New England Central Railroad Company. Nearly every short line and regional railroad is a member and as such its members geographically impact a significant number of states and congressional districts. The letter filed with the STB indicates that the Short Line and Regional Rail industry is starting to advocate on Grafton & Upton Railroad's behalf because they view the attack on the Grafton & Upton to be an attack on the nation's railroads. All the best, Red.