Selectmen Give Update on Grafton & Upton Railroad Suit

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Selectman Brook Padgett, center, speaking at Thursday night's meeting.
Selectman Brook Padgett, center, speaking at Thursday night's meeting. Photo Credit: Jennifer Lord Paluzzi
Residents asked questions about the railroad's rights versus the town's rights.
Residents asked questions about the railroad's rights versus the town's rights. Photo Credit: Jennifer Lord Paluzzi
Matthew Flynn addressed the selectmen about water safety.
Matthew Flynn addressed the selectmen about water safety. Photo Credit: Jennifer Paluzzi

GRAFTON, Mass. — A crowd of about 140 residents filled the high school auditorium Thursday night to get updated on the legal fight between the town and the Grafton & Upton Railroad regarding a propane transfer station being built next to a neighborhood.

During the two-hour meeting, there were many questions but few complete answers on an issue that will be decided after a federal judge hears the case Jan. 14. 

In the meantime, concerned neighbors expressed their fears at the meeting.

Jacqueline Brosnihan, 80 N. Main St., was worried about a tank explosion in the neighborhood. "Do you all have a plan to protect the residents?" she asked. 

Michael Everett, of North Grafton, expressed a similar fear if the town is overwhelmed by a propane fire. "Does the Grafton Fire Department have adequate resources if a fire occurs in this facility?" he asked.

Matt Flynn had questions about how a nearby water source will be protected from the construction and potential contamination.

The issue is whether Jon Delli Priscolli, the owner of the Grafton & Upton Railroad, is exempt from state and town laws as he builds a propane transfer terminal a short distance from homes and an elementary school. The town said the station is not exempt while Priscolli said it is since it is part of his railroad business. 

Priscolli wants to build the propane station to sell to wholesale distributors, who will bring their trucks into the yard.

Before the session began, David Ross, chairman of the Grafton Board of Selectmen, said because the town is in litigation with the railroad, some answers might not be complete.

“There are certain things this board cannot comment on,” he said. “We’re more than willing to listen to your concerns, we will take notes on them, but there may be some things where we need to plead the fifth.”

He opened the meeting by saying: “In order to preserve the water supply and zoning, we are taking every action to prevent the tanks from coming into town. However, pre-emption is determined by a federal court and if the facility is allowed to be constructed, the town will work to make this the safest possible facility.”

The germane issue to the town’s case is whether the proposed Westborough Road railroad propane transfer station being planned by Grafton & Upton Railroad is entitled to pre-emption status, which would make unnecessary the traditional local and state permit and zoning processes.

The town, which received a cease and desist order in December to temporarily halt the delivery of four, 120-foot tanks in the residential zoned area, said the railroad has not provided enough evidence that it is not subject to local jurisdiction.

Priscolli has argued the railroad is subject to federal oversight but not state and local laws.

Tim McInerney, the town administrator, said the town and its attorney are putting their case together with a broad-based approach.

“We have notified everyone we possibly could from the DEP, fire marshal's office, homeland security, everyone you could imagine,” he said.

He said the town has asked for additional documents from the opposing counsel which, in a preliminary injunction hearing, Judge Timothy Hillman ordered the railroad to share. McInerney said the process to get what they need has been slow.

“We recently asked for full documentation from the Grafton & Upton Railroad regarding plans and drawings, which we have not received to date,” he said.

The trial is set for Jan. 14 and is scheduled to last four to six days, McInerney said.

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Comments (24)

Hi...Georgia Grommit here (ha...that's my cover name. My real name is... ummm...Bob Cruise. Yeah. That's my name).
Anyway, take a step back. A group of citizens grew quite alarmed at the RR activities. They appropriately pointed out their concerns about potential propane mishaps, pollution, and plummeting property values.
They brought their concerns to the BoS and TA. Did the BoS/TA react quickly enough? Correctly? That remains part of the issue.
Should the BoS/TA have poked at Federal agencies sooner? Should Government agencies (STB, EPA, or the State DEP) have intervened sooner? Well, all of that is moot, because the RR was going to haul in those gigantic tanks on an accelerated schedule and the RR rebuffed the request to slow things down. That forced the BoS to act with their Cease & Desist and haul in the lawyers.
Did we get the best law firm for this activity? Now...there's a really good question. A quick Google search shows the smallish law firm we hired and does not reference any technical expertise in such matters. They do appear to be well-connected with State issues. But, you know that the RR has retained a law firm that has developed expertise in this area.
Perhaps if the Town has reacted more quickly to the initial concerns. Perhaps if we had invoked Senators Kerry or Warren, or Rep McGovern because they are all Federal (Kudos to state Sen Moore for jumping in).
Well...that is all "shoulda, coulda, woulda".
Or, as Bill Bellicheck would say "It is what it is"
We'll sell of the Perrault and Creeper Hill lands to pay for all of this and have enough left over to pour money into the DPW facilities and town roads.

Dear Wandahendrix, please use the arrow button to scroll down and take note of the other postings, you will notice that not many are using what appear to be actual names, most are using some sort of moniker. Besides, am I to assume that your actual name is Wanda Hendrix? You could be Jimi Hendrix but I have no way of knowing that. Hell, you could be some sort of robber baron trying to swoop in and take control of the Grafton and Upton Railroad! For that matter, I could actually be Jon Delli Priscolli! That’s the beauty of anonymous blogging, one never knows.

Thank you for sharpening my point more precisely.

To "Liberal".: I am saddened that you have the chutzpah to make assumptions about me and predict my behavior, as well as to so confidently state your opinions as absolute fact. Yet, apparently not having the courage of your own convictions you are too cowardly to use your actual name in your commentary.

When the judge dismisses the suit on January 14th I’m envisioning a Tiananmen Square type uprising with wandahendrix lying down in front of tractor trailers transporting the tanks! Red Tempo thanks for the much needed dose of common sense.

I regret to inform my fellow townspeople that storage tanks are a necessary and routine component of interstate commerce, especially when movements involve railroads. This is due to the need to alleviate railcar bunching that normally and naturally occurs during a rail movement. Railroads are not conveyor belts. Cars do not all move at the same rate and accordingly they sometimes arrive in bunches. A shipper may release a single car each day five days a week but they may arrive in a cluster of 3 or 4 or 5 or more. Variations in transit occur because of holidays, mechanical breakdowns, weather and many other reasons. Tank cars in North America are not owned by the railroad companies. Tank cars are the private property of leasing companies that lease these assets to shippers and to a variety of companies. This is relevant because the tank car owners do not always want their cars to serve as storage facilities at destinations because they are needed to filled again at the origin to travel elsewhere and to make money. Storage tanks at destinations such as those proposed to be installed at the Grafton & Upton Railroad serve an important role in interstate commerce by permitting clusters of rail cars to be unloaded quickly such to permit their movement back to the origin point to permit commerce to continue. This also results in the need for fewer railcars because they are cycling back more frequently. Fewer railcars means less capital costs for propane shippers which in turn helps to keep the retail price for propane low. The argument by the Town's attorney that storage facilities are not a component of interstate commerce is simply without merit as it fails to appreciate how railroads operate in North America. It's an indication that town has hired the wrong lawyer and that we are wasting the taxpayer's money with the wrong law firm. My best to you all - Red.

Yes I've seen the site, I live one town over and the P& W could do the same in my town if they wanted, and I'll bet we would welcome the revenue that would come from the business. Once again it's only propane, you already have other facilities in your town that could potentially "explode" catastrophically, every town does, and the chances of a catastrophic explosion are miniscule. Here's what will ultimately happen, you’ll stop the propane terminal and he’ll build a scrap recycling operation on the same parcel, you’ll end up with poor air quality, polluted groundwater, and a visual eyesore, but you’ll have stopped the propane terminal. Look I’m a liberal, I hope that you find a “snail darter” in a nearby wetland and all development will have to stop, so that the area can become preservation land, but alas I’m also a realist. It’s an F’n propane terminal, no big deal!

To: Liberal

This facility will store 36 Trailer Tanker Trucks (9000 gal each) of propane. These trucks are ones you see at gas stations delivering gas.
We are a civilization run by rules and checks and balances. If you go to build any permanent structure in any town or city you must get a building permit. Using your logic a building permit is for revenue, not so. A permit gets a review that the structure meets the town rules for the land residential, commercial etc or a exemption is requested. The permit process reviews the plans for structural integrity, building standards usually set by government or industry standard groups. The structure and site plan is reviewed for set backs and impact on surrounding properties. It is reviewed for safety and fire standards. When given the go ahead the project is reviewed by appropriate inspectors, building electrical, plumbing and fire for compliance with plans and standards while it is being built and upon completion. These inspectors are independent of the developer and are not as in this case hired and paid for by the developer. If there are special unique issues they are dealt with before the permit is issued. Items like the cost for additional training and firefighting equipment the municipality will incur to protect its citizens and the property owner. Will the roads in and out of the facility take the strain of the number and weight of the vehicles that will use the roads daily, is the road wide enough for two large trucks to pass each other safely. Are there any dangerous turns or blind intersection they will encounter. These trucks will be going on residential not commercial streets in and out of the facility. Price Chopper in Shrewsbury had to upgrade the South Street Route 9 intersection at their expense not the town or state's expense for the addition traffic. Grafton was not given detail plans, operation loads and volume, envirmental impact etc. Other than an overall layout of the site with no detail specifications and as of last Thursday under orders by the Federal Judge has not been given to the town.
When Harvey's Transfer Station was expanded in Westboro, Harvey worked with the towns, Westboro and Hopkinton, to make sure they would be a good neighbor. They did not show up one day and say tomorrow we are expanding and opening a massive trash recycling facility, screw you. This Railroad owner is is quoted in the papers to have said Grafton is going to see a nuclear explosion and I will bury you, or something close to that.
He has rights but so do the citizens of Grafton. He can't use a Federal Law as he interprets it for building a business that the law was not intended for. This is not a simple load and unload facility for the railroad business but a Storage facility not covered by the law. If he was just transferring propane from tanker railroad cars to trucks for delivery why does he need four 120 foot 80,000 gallon tanks. Wouldn't a siding with a hose and pump from the tanker cars to the trucks suffice?

I respect Liberals but not when the speak without knowing the facts. This not just a F'n propane terminal.

Good point! So the storage tanks, "store"/"warehouse" propane, which is different than intra-modal, which means it is transferred from train cargo to other transport services.
But a reasonable second question is, is an established depot, not safer for all?

Here is my problem with this project. He owns a RAILROAD- not a PROPANE business. Yet his objective here is to "to build the propane station to sell to wholesale distributors, who will bring their trucks into the yard." So, as far as I can tell, this business is not even related to the ownership of the railroad, it is a seperate entity? How can he say that he is exempt from any railroad related laws? This should be a NO BRAINER- it does not belong in a residential, school,or water supply area.

An storage tank explosion, is unlikely (almost impossible) for a full tank. However, an empty tank ( 3% or less is considered empty) will be very explosive! If there was a fire to cook off tank, say good by to area! Remember, you will be having tank trucks in & out to fill up. The facility needs to be protected from a runaway or poorly driven truck causing a tank leak. The warning devices & protective valving to prevent leaks should be extensive. Having passing freight trains that can derail into tank farm are a hazard also. There are methods of adding items to reduce chances of a derailed train going into tank farm. Some of these are side rails to guide consist by even if derailing occurring. Dragging equipment detectors. Assuming there will be a side track, there will also be a end of track bumper. Switching to side track will likely be manual, which means a concerned 2nd worker will be guiding consist into side track.

The worry is not an explosion, but worse, a leak that produces a cloud of ground hugging propane that will erupt in a ball of fire! Crispy Critters! Many such Propane incidents on Internet from around country.

The roads in Gradton are a disgrace, unless you live on the same street as the POS or other town officials, who repair their streets constantly. Wheeler and North Brigham Hill are so bad you can lose fillings, let alone a tire. Like it or not Delli should not have to pay for the neglect of our local infrastructure by the towns government

I am curious are they building a transfer facility or are they building a storage facility. A transfer facility would in my opinion maybe hold a week or two of propane. 4 large tanks will hold a lot of gas. Is that amount of capacity 2 weeks supply of say 2 to 3 months. The later would make it a Storage facility not a transfer station allowed as a function of the railroad I don't believe a "Storage" facility is a function of a railroad. Has anybody asked what the turnover rate of this volume of LP gas?

I still ask can Westboro Rd. with the two culvert, which is not part of the State highway, handle the load of the tanks and trucks? I know I have seen weight restrictions in some areas of town and on some bridges. Has the highway department ever concidered a weight restriction on that section of Westboro Rd at least to protect the culverts.

I think that's something to consider... If Delli Priscolli wants to drag ginoromous tanks through town and then boost the truck traffic... shouldn't he be willing to pay for the extra wear and tear? Our roads need fixing... If this guy damages the culverts the money for repairs should come out of his pocket, right?

I would be very hesitant to get the elected officials who are not a party to this case involved, Federal Judges frown on this.

Also, generally, business matters are usualy by bench trial as opposed to jury as the matters are usually rather complex, and the average citizen usually doesn't understand contract law, or in this case, the details of federal pre-emption. It also takes the emotion out of these cases, as people tend to be sympathic as opposed to logical in the intepretation of the underlying law.

I was at the meeting last night as well and I was glad to hear that all the points that I was concerned about were brought up. This propane transfer station, as someone brought up last night, is just WRONG on SO many levels !! To "Liberal" who posted here, I have been a resident in this town long before Mr. Delli Priscoli was in business here. Look at this guy’s track record in our own town and our surrounding towns. I don't know one person who abuts the rail line that approves of anything he has done. I am all for attracting businesses to town but not this type of business (hazardous), and not at the expense of our home values and insurance premiums. This guy is obviously a toolbag that is trying to profit at the expense of the other residents of this town, it’s not right and it shouldn't be allowed to happen. Our town officials should fight this matter tooth and nail till the very end. I hope that Mr. Delli Priscoli takes the hint and gets the hell out of Grafton; he's a bully and a virus not to be trusted who uses his railroad status to do whatever the hell he wants. In a previous article he was quoted as saying "He wants to be a good neighbor to the town of Grafton" . . . with neighbors like this who needs enemies ??

Wandahendrix, why would those politicians want to be viewed as anti-business and development. You Grafton people need to take a step back, and look at what you're fighting against. It's a propane storage terminal, along the railroad tracks, not an F'in fusion reactor. Thousands of propane storage facilities function safely every day throughout America. You're like the people who buy near an airport and then complain about airplane noise. Bunch of NIMBY's, NO scenic train rides for you!

Sticking with the airport analogy... what if an airport decided to purchase a tiny airfield in a residential area with plans to expand it to be a busy international airport? Shouldn't the airport developer expect significant pushback from the residents? Afterall, you could make the argument that the area is historically more residential than it is airport. Surely that counts for something.

This would be a significant change of scope of activities performed at the site, in my opinion.

Stay F'n classy, Liberal!

At the risk of dignifying your nasty comment with a reply, I must point out that the railroad tracks flow THROUGH a residential neighborhood. A propane storage facility is a STATIONARY, STATIC installation. No one is fighting what might be ON THE TRACKS moving THROUGH town. Have you seen the site? Since you are not one of us "Grafton people" and claim to have information we hicks are not privy to, please provide the detailed address and contact information for an LPG Intermodal Storage and Transfer Terminal facility in the middle of a residential area. Also, just a reminder that the EPA regulations clearly state the psi blast radius for that quantity of propane as .6 miles. The elementary school, library, park, and residences are all well within that area and therefore such storage is prohibited. I'm also wondering why YOU are so angry.

I was at the meeting last night. I can say there were far more than 140 people there; perhaps that was a typo. I was really disappointed that the BOS seem way outgunned and behind the ball on this. The clear impression seemed to be that they were resigned to this notion of pre-emption. As Mr. Flynn so astutely articulated, we shouldn't just accept this pre-emption lying down. If the BOS are unsuccessful in court, they should appeal. They should change tack. And by all means necessary enlist the support and funding to do so. The town will rally behind them. It was such a tired argument that "we are a small town and just don't have the money to fight..." That is such a losing mentality. If not fight for this, then what? If not now, when? There were also no facts on the worst case scenario of a blast. If one tank explodes, it is almost a certainty that the force of the blast and shrapnel will puncture the other tanks. Folks seemed concerned about fire suppression. I am not. A fire is not really a concern. If the site explodes, those suppression systems will be eviscerated, as will some significant area around the site. It's like saying Fukushima was safe because there were back-up systems. Or the Maconda well was because there are redundancies. Well, those back-up systems were rendered useless by the scale of the first critical event. And for the Town Administrator to acknowledge when asked that the fire department had the resources to address that type of event was naive, if not ignorant. I hope this doesn't pass pre-emption. But if does, the Town better ramp up to escalate this fight. The scale of this is just not right. At the worst, if pre-emption is upheld, the BOS should be appealing to the GURR to scale down the size of this proposed site if for no other reason than to reduce the risk of a catastrophic failure.

January 14 9:00 am US District Court, 595 Main Street, Worcester. Park in the garage across from the federal building and Hanover theater. Let's show a presence! Justice Timothy Hillman (President Obama's appointee seated June 2012) has apparently expedited a "jury-waived bench trial". Contact John Kerry's office, Jim McGovern's office, Mike Moore's office - just google their names and get all their contact information.
I wish there were also to be a jury of citizens. Please attend to demonstrate our interest and commitment. Carpool anyone? I'm "in"!