Testimony Continues In Grafton & Upton Railroad Trial

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The Grafton & Upton Railroad wants to add  four 120-foot propane tanks to its North Grafton depot.
The Grafton & Upton Railroad wants to add four 120-foot propane tanks to its North Grafton depot. Photo Credit: Jennifer Lord Paluzzi (file photo)

WORCESTER, Mass. — On day two of the trial between the Grafton & Upton Railroad and the town of Grafton, the railroad’s attorney told the court that Grafton officials knew of the propane terminal plans longer than they claim.

Defense lawyer John A. Mavricos argued that the railroad’s nearly completed terminal at 42 Westborough Road, near the CSX rail line, is operating under federal pre-emption laws, as defined by the Interstate Commerce Act. He claimed the town wants representation that doesn't exist in law.

Railroad owner Jon Delli Priscoli testified under oath that he wanted to build the facility because the U.S. energy market is changing and demand for propane is growing.

During testimony, he said he contacted John Holstein, owner of several propane businesses – including LPG Ventures, based in Missouri and Spicer Gas based in Connecticut – who Delli Priscoli said he hired because of their expertise in transporting and unloading this fuel.

Delli Priscoli said in his testimony he spent $1.8 million to prep the site in North Grafton, and then signed a $3.2 million lease with Holstein, who in turn would deliver four 120-foot propane tanks to the site, and build catwalks that would siphon the propane from the rail cars to the holding tanks.

He also testified that he is building separate off-loading rails from the G&U “short line” because he was told it would be safer and that, in the first year of operation, he plans to receive between 1,500 and 2,000 propane rail cars.

Delli Priscoli testified that he and town Administrator  Tim McInerney toured the Westborough Road site in March to discuss road improvements that required the town to work on railroad property. He said he told McInerney his intentions to develop a propane terminal. Delli Priscoli testified McInerney said “the railroad can do anything.” Delli Priscoli then said he told McInerney he wanted to be a partner.

He also testified that, in July, he attended a meeting at the Grafton Police station with McInerney and Chief Normand A. Crepeau to discuss lighting, security fencing and traffic signals for the propane site.

Under cross examination, attorney Ginny S. Kremer of Bowman & Penski asked why his company did not present a fire safety analysis to the Board of Selectmen despite a request made by Jacob Nunnemacher, a state fire marshal from the Department of Fire Services, during a meeting attended by representatives of the railroad, Grafton Fire Chief Michael Gauthier and his deputies, and McInerney.

Delli Priscoli testified that, although he was not at the meeting, he said his employees told them they would not do it because the propane terminal site fell under pre-emption status.

Delli Priscoli testified that, in his experience as a real estate developer, when you “talk to the town manager and fire chief, then you are in fact talking to the town.”

The trial will continue at 9 a.m. Thursday. Judge Timothy S. Hillman said he would like the deliberations to end this week.

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Here's a thought: the RR lawyers are going after TWO decisions.
1) Prememption: whereby the RR can do the propane transfer and is exempt from town and state regulations;
2) Compensation: because the Town knew about the propane initiative but, by acting at this late stage, they are causing significant monetary damages to the RR. That is why the lawyers are working so hard to get the timeline into the proceedings.
Oh boy...shades of the Water District fiasco?
Whaddya think?

The main question you have to ask is this, if there is an incident with the propane tanks, who holds the liability? If it's the railroad...then I would lean toward preemption.... if the liability would be with Spicer Gas or Holstein....then it is not a case of preemption....it really is as simple as that...by the time these things get before a judge, the judge will have a pretty good idea what the evidence, contracts & ownership is.....It's just a shame Delli hasn't learned from past business mistakes...shame for shame.

At the first public meeting, Deli said up to 10 transfers per day. Was he lying again ?? And what was McInerney and the fire chief saying to him at these secret meetings.

I believe Mr. Aladdins, that its time to focus on preemption and harm to the community not what allready been done.

10 transfers per day, excluding weekends, every day of the year would amount to (5/7 * 365 * 10) = 2,607.

I'm not math major, but I believe the 1,500-2,000 tankers a year lives up to Mr. Delli Priscoli's claim of "up to 10 transfers per day." I see no lying here...

If the railroad was owned by one company, and the propane terminal was owned by another company, there would be no preemption situation, right? The railroad would absolutely be granted preemption, and the propane terminal would absolutely have to go thru zoning, voting, and courts Unless the guy runs his trains on the propane, this has nothing to do with rail transportation, therefore, nothing to do with preemption. Of course 'the railroad can do anything' as long as it's a railroad, not a propane dump site.

First off, I would like to thank the Grafton Daily Voice for their on the scene reporting. It's terrific, that our town has such a high quality news source!

As for the trial, John Deli's actions and testimony are consistent with railroad operations and preemption rights. Our town's attorney needs to show the court why this business arrangement does not fall under a railroad's preemption rights. Based upon the weakness of the town's presentation to date, it sounds like the judge wants to wrap this up quickly, if we have no legal challenges to federal preemption.

On the other hand perhaps the judge agrees that there has been enough back and forth about the irrelevant question of who said and did what and when, and he would like to move on to testimony on the actual issues that will inform his decision.

Has the railroad's case been stronger than the Town's so far? I think I have only seen that the G&U has claimed they have preemption, and the Town has said they don't know that to be true yet based on the information they have been able to obtain. Note the reported testimony to the effect the Town asked for the relevant information so it could determine if the claim was correct for this particular set of circumstances and facts, and the G&U did not provide it. Prior cases have gone either way depending on the specifics. It seems likely the same will be true in this case.

Aladdin: Read the Worcester Telegram and you can see in more detail the railroads slight of hand so to speak.