From: Richard Thomas
Sent: Saturday, September 15, 2012 12:27 PM
Subject: SEQR, Clean Railroads Act, the Oil and Gas Waste Loophole, and Frac Sand
I would guess that the litigation is the only remedy at this point [now that the Suffolk County Legislature has approved the land sale of the 230 acres Yaphank site].
Perhaps one could file for a stay on the sale until the conclusion of an Article 78 action against the county, citing the failure of the county to do an adequate SEQR.
SEQR is especially important in the case of this land transfer because local governments lose nearly all oversight and control over the use of the property once it is owned by, or leased to, a railroad carrier. [The current Sills Road Realty 28-acre property is leased to a railroad carrier for $1,000 annually for 30 years.]
"What happens if an agency does not comply with SEQR?
If an agency makes an improper decision or allows a project that is subject to SEQR to start, and fails to undertake a proper review, citizens or groups who can demonstrate that they may be harmed by this failure may take legal action against the agency under Article 78 of the New York State Civil Practice Law and Rules. Project approvals may be rescinded by a court and a new review required under SEQR. New York State's court system has consistently ruled in favor of strong compliance with the provisions of SEQR (see also case law to be posted later)."
Doing anything after "Oakland Transportation Holdings / Nevada 5 Inc / Etc., etc." takes over is likely to be much harder.
To prevent them from making the 231 acres into a solid waste transfer site would depend on litigating under the federal Clean Railroads Act of 2008.
I'm sure Oakland Transportation (and its many associated corporations) has the best lawyers money can buy to fight actions brought against it under that act.
See "Pace Environmental Law Review"
Christina Hawkins, How States and Municipalities Can Retain the Power to Regulate Rail Carrier-Owned Solid Waste Transfer Facilities in the Context of the Metro Enviro Transfer, LLC v. Village of Croton-on-Hudson and Buffalo Southern Railroad, Inc. v. Village of Croton-on-Hudson Decisions, 26 Pace Envtl. L. Rev. 289 (2009)
Despite its optimistic title, the actual text isn't very encouraging.
The Town of Brookhaven's Law Department certainly doesn't have any experts in federal rail transportation law, and if a solid waste transfer station meant more income from the landfill, Brookhaven Town probably wouldn't be opposed anyway.
The Clean Railroads Act is an attempt by Congress to give some control back to local government and limit STB jurisdiction when a site is used for solid waste transfer.
One railroad carrier (in February 2011) argued before the STB that the Clean Railroads Act of 2008 doesn't apply when solid waste remains in its "original containers" while under the control of the carrier. So if the railroad carrier delivers original containers to the Town of Brookhaven, state environmental regulations come into play only after the containers are no longer under the control of the railroad carrier.
Also, there is a HUGE LOOPHOLE in the Clean Railroads Act. It does not apply to oil and gas waste that is transferred "by or on behalf of" a railroad carrier.
Natural Resource Defense Council Staff Blog, Amy Mall's Blog, 14 Dec 2011.
This oil and gas loophole is now having real impacts. According to a recent article from Pennsylvania from Below, the residents of Sunbury, Pennsylvania are discovering what a dirty and risky problem the CRA loophole can be. Without warning to nearby residents or local officials, a company called Moran Industries opened an oil and gas waste transfer facility in January, 2011 at a site with an old rail connection in their neighborhood. Residents report that trucks filled with natural gas production waste now rumble through their neighborhood, where the waste is loaded onto railcars at the site before being transported to Ohio. The material looks like a combination of soil and rock, and has a strong chemical odor. The residents want answers about what is contained in the waste, but have no way of knowing if it contains hazardous chemicals. Given the presence of highly toxic substances in natural gas waste, including the naturally-occurring radioactive materials in Pennsylvania’s natural gas fields, their concern is legitimate.
Moran claims the site is being operated by or on behalf of Norfolk Southern Railroad. The Pennsylvania Department of Environmental Protection (DEP) has been investigating the site for almost a year, but has yet to determine on whose behalf it is being operated. If the DEP finds that Moran Industries is not operating on behalf of a railroad, then the site would be subject to state regulation. But the DEP has not made any indication when its decision will be made. Meanwhile, trucks full of oil and gas waste continue to unload at the site without oversight.
Without any state oversight, the federal Surface Transportation Board (STB) has jurisdiction over an oil and gas waste transfer site at a railroad facility. But, according to STB staff, the agency doesn’t conduct any environmental analysis or permitting of a facility unless a new rail line is built or an old one is abandoned. So, unless the state decides to regulate, the facility in Sunbury will continue to operate without any oversight whatsoever, and the public has no information about the nature of the waste, how it is being managed, or what measures—if any—ensure the public is protected.
NRDC has asked EPA to write new rules for all oil and gas waste because the waste can be very toxic--but is currently not subject to any hazardous waste regulations. There should not be any loopholes for this toxic waste, especially in the middle of communities. All that spending on lobbying seems to be paying off for the oil and gas industry. But it may be costing the residents of Sunbury and similar communities dearly. Congress should close the CRA loophole—along with all other loopholes— for toxic oil and gas waste.
Not only does the STB not conduct any environmental review of an existing facility, I believe it is usually the case that the STB doesn't conduct any environmental review of the expansion of an existing facility, but I need to find where I may have read that.
A federal circuit court in February 2012 has concluded that local oversight is preempted and only the STB has jurisdiction and oversight over the transportation and transloading of "frac sand."
In February 2012, the Fifth Circuit concluded that the ICC Termination Act, 49 U.S.C. § 10501(b)(1), which confers jurisdiction to the STB over “transportation by rail carriers,” applied to a railroad’s transloading operations of “ ‘frac sand’ . . . used in hydraulic fracturing (commonly known as ‘fracking’) at its natural gas wells.” Transloading is the “transfer of commodities between rail cars and trucks, a process used when the ultimate destination of a commodity is not served by a railroad.”
See p. 365 of an article on recent developments in STB preemption cases.