Sent: Friday, September 07, 2012 11:21 PM
The purpose of the proposed construction is to enable U S Rail to serve the BRT as a common carrier and to deliver up to 500,000 tons of aggregate annually from sources in upstate New York to Sills Road Realty, LLC (Sills), the owner of the underlying property, and its affiliates and related companies on Long Island. The project is intended to reduce Sills’ reliance on truck transport of aggregate through the New York City metropolitan region. Trucks currently use local roads to bring aggregate to Sills’ existing construction facilities on Long Island (the Scatt Materials Plant and the Empire Asphalt Plant). With the use of U S Rail’s rail service at the BRT site, most of the heavy truck traffic needed to access these plants would use Interstate 495, and there would be no heavy truck traffic related to Sills’ business activities through Port Jefferson or Port Washington, N.Y. Sills would use 250,000 tons of the aggregate at its own facilities and would make the remaining 250,000 tons of aggregate available to its customers.Rail operations would consist of an average of six trains per week: three inbound trains, each consisting of approximately 40 to 50 railcars of aggregate delivered to the BRT, and three empty outbound trains, each consisting of 40 to 50 railcars. NY&A would deliver the aggregate to the BRT on the LIRR line that terminates at Greenport, N.Y. Upon arrival at the switch lead into the BRT, NY&A would then interchange the traffic to U S Rail, which would haul the cars into the BRT.
Above: Aerial View of Empire Asphalt, East Setauket, NY. Note railroad (Port Jefferson line) at north boundary of site.
Above: Truck Route from Brookhaven Rail Terminal to Empire Asphalt in East Setauket, NY.
Compare to distance from Port Jefferson harbor to factory site.
U S Rail also has specifically agreed to not handle solid waste at the BRT site. In its “Stipulation of Settlement” with the Town of Brookhaven, U S Rail has agreed that “operations at the Property shall not include the collection, sorting, separation, processing (including but not limited to, baling, crushing, compacting and shredding), incineration, treatment, management, disposal, transport or transfer of solid waste and construction and demolition debris unless required under federal law or regulations.”
Suffolk Southern Rail Road LLC (Suffolk), a noncarrier, has filed a verified notice of exemption under 49 CFR 1150.31 to sublease from Custom Recycling LLC (Custom), a noncarrier, and to operate 1,280 feet of rail line located at the Brookhaven Rail Terminal at Yaphank, Suffolk County, NY. There are no mileposts on the line. Custom currently leases the line from Nicolia Realty LLC, also a noncarrier and owner of the line. As a result of this transaction, Suffolk will provide common carrier service over this line of railroad, which currently is being served as industry trackage by the New York Atlantic Railway, a Class III rail carrier.( http://govpulse.us/entries/2007/04/19/E7-7430/suffolk-and-southern-rail-road-llc-sublease-and-operation-exemption-brookhaven-rail-terminal )On June 15, 2007, Suffolk filed a letter with the Board, stating that it has decided to withdraw its notice of exemption due to a “change in circumstances.” Suffolk did not provide the supplemental information required by the June 1 decision. Nor did Suffolk provide the Board with a substantive reason for its attempted withdrawal.Suffolk is directed to file, by August 23, 2007, the information required by the June 1 decision. In addition, under the circumstances here, Suffolk must provide a substantive reason for its attempted withdrawal and explain in more detail whether it or Sills anticipates that for-hire service will be provided over the trackage being constructed.In a decision served on September 25, 2007, the Board found that Suffolk had provided enough information to support its attempted withdrawal of its notice of exemption. At the same time, however, the Board stated that it would view with disfavor any future request for authority to commence rail operations over trackage at this location, unless the construction of that trackage had first been authorized by the Board.
Petitioners’ argument is that the proposed use of the track would not require prior Board approval for construction under 49 U.S.C. 10901 or operations under 49 U.S.C. 10902(a) but, rather, qualifies for the exception from the Board’s entry/exit licensing authority in 49 U.S.C. 10906 because the track has some of the characteristics of “spur” track and would be used as a “disconnected” ancillary “spur” of an existing carrier, U S Rail.
The key test to determine whether construction and use of a track requires Board approval (and an environmental review under NEPA) is whether the “purpose and effect of the new trackage is to extend substantially the line of a carrier into new territory” not served by the carrier or already served by another carrier.
Here, the purpose of the proposed construction and operations appears to be to allow U S Rail to serve new shippers.
The track cannot reasonably be viewed as used for a purpose ancillary to the service that U S Rail is already authorized to provide, as the proposed construction and operations will be located hundreds of miles from U S Rail’s existing operations in Ohio. Thus, petitioners are unlikely to prevail in their argument that no Board authority, or NEPA review, is required here, even though the track may have characteristics of a “spur” or industrial track.