Wednesday, September 26, 2012

BRT Lawsuit - Newsday

Suffolk sued over Yaphank land sale

Originally published: September 25, 2012 4:14 PM
Updated: September 25, 2012 9:43 PM

Four Suffolk County residents have filed a lawsuit to block County Executive Steve Bellone from selling 230 acres of surplus county property in Yaphank to expand a local rail hub.

The suit against the $20 million sale claims that the county failed to undergo a required public bidding process to get the highest price for the parcel. The plaintiffs ask the court to nullify the sale approved by the county legislature to Oakland Transportation LLC. The company is a partner in Brookhaven Rail Terminal in Yaphank, which is looking to expand its current site.

The lawsuit comes after dozens of people testified against the sale at a public hearing in Hauppauge. Witnesses said the buyers have refused to say what they plan to do with the property, and expressed concern that the expansion will jam local roads and threaten the Carmans River watershed.

"The county had no authority to dispense with competitive bidding where the statute explicitly mandates that the sale of surplus property must be sold only to the highest bidder," according to the suit filed Tuesday in State Supreme Court. The residents also claim that the $20 million sale "constitutes an illegal gift" at a "give away price far below market value."

County Attorney Dennis Cohen said the suit has "no merit" and that the county will press to have it dismissed. He said the county legislature through local law is allowed to supersede the bidding requirement under state law. "I expect the county will prevail," said legislative counsel George Nolan.

Bellone administration officials have said that the county's real estate consultant, Newmark Knight Frank, solicited more than 100 potential buyers and found "no adequate offers."

Judy White, a spokeswoman for Brookhaven Rail Terminal, said, "We haven't seen the papers so we don't have a comment."

Saturday, September 15, 2012

SEQR, Clean Railroads Act, the Oil and Gas Waste Loophole, and Frac Sand

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

Attachments:  BrookhavenRail_CleanRailroadAct.pdf

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.


Friday, September 14, 2012

Sad Day for the indigent and for Yaphank and Brookhaven hamlets

It is always dangerous to make predictions.  But I think there is a very high probability the Suffolk County Legislature will rue the day they made these decisions to sell the Suffolk County skilled nursing facility and the 230 acres of pristine wild lands. 

The Suffolk County home was one of the jewels of the county–something all county residents could be truly proud of.

As reported in this blog, the owners/operators of the Brookhaven rail terminal (BRT), are perhaps the shadiest enterprise ever to have set foot in the county.  And this in a county that has had many shady operators..  It is hard to understand the business logic of locating a rail terminal in the Town of Brookhaven on eastern Long Island (from a rail transport perspective near the end of the world).  It is hard to understand how truck traffic on Long Island will be reduced.  While eastbound truck traffic may be reduced, most of what is rail shipped to Yaphank will have to be transshipped by truck west to Nassau County and NYC.  Where is the reduction in truck traffic there?  Even though the BRT folks have indicated (tongue-in-cheek?) that they are not especially interested in shipping garbage, now with some 300-400 acres under their control (all apparently not subject to any local jurisdictions or control – neither Brookhaven Town, Suffolk County or New York State – it seems inevitable that it will become the regional collection point for the transshipment of garbage off Long Island.  It is said that the BRT will be the largest rail transshipment operation in the United States.

The BRT will either become a huge white elephant headache for Suffolk County and the Town of Brookhaven, or a colossal raping of the Long Island environment including the Carman’s river and our drinking water aquifer.  And in either eventuality, destroy the  hamlet of Yaphank.  All for a relatively small pot of gold.  What were our elected officials thinking?  One can’t help but speculate that someone is on the take –another long-time Long Island tradition.


John Deitz 


Suffolk Legislature OKs sale of Foley nursing home

Originally published: September 13, 2012 5:28 PM
Updated: September 13, 2012 10:38 PM

Photo credit: Bill Davis | The John J. Foley Skilled Nursing Facility in Yaphank.

Suffolk lawmakers Thursday night approved the $23 million sale of the John J. Foley Skilled Nursing Facility in Yaphank by a slim majority to help close the county's $250 million budget gap.

Legislators also voted 16-2 to approve the $20 million sale of a county parcel in Yaphank for expansion of a rail hub. "Today we took a $43 million step toward balancing Suffolk County's budget," Deputy County Executive Jon Schneider said after the votes.

The 10-7 vote for the nursing home sale came after aides to County Executive Steve Bellone warned that a delay or rejection of the sale would force the administration to present a budget next week that would close the complex by year's end and lay off its 200 employees. The administration also warned lawmakers that if they chose to keep Foley open, a property tax increase of at least 12 percent would be necessary next year.

Backers said the sale will keep the nursing home in operation and its 190 residents in place.

"I'm going to vote to sell because I'd rather not close it and put the people in this room on the unemployment line," Louis D'Amaro (D-North Babylon) said of the crowd, which included many nursing home workers.

But Dan Farrell, president of the Association of Municipal Employees representing nursing home workers, called the vote "pure politics. The county executive put pressure on all of them."

Farrell vowed to challenge the sale in court, claiming that 12 votes are needed to approve the sale and that the sale process was flawed. County and legislative attorneys say only 10 votes are needed. Legis. Edward Romaine (R-Center Moriches), whose wife works at Foley, recused himself from voting.

The vote came after a nearly 21/2 hour debate and a half-hour recess during which the Democratic majority huddled privately with Bellone's chief deputy Regina Calcaterra and county attorney Dennis Cohen.

Earlier in the day, lawmakers had listened to more than 70 people who spoke about the nursing home and the proposed sale of 230 acres in Yaphank to expand a freight rail hub.

Legis. John M. Kennedy Jr. (R-Nesconset) said maintaining a public nursing home was crucial to protecting long-term residents who need custodial care.

"We have people who have worked in Suffolk County, paid taxes in Suffolk County, but when they find themselves down, they get a one-way ticket out of Suffolk County," he said.

Patricia Foley Kuhn, daughter of the late lawmaker John J. Foley, who championed the county's public nursing home, told lawmakers that if the complex is sold, her father's name should be removed.

"If the sale goes through, it will be a sad day for our family," she said. "But it will be even a sadder day for the people of Suffolk County."

Opponents of the rail hub earlier in the day expressed concern that local government would have no way to regulate use of the property because federal rules pre-empt most local control.

Democratic Brookhaven Town board member Connie Kepert called on the lawmakers to table the sale until the county can work out covenants and restrictions, including limits on access to local roads. "We're asking you consider more than dollars and cents, and consider the residents of the community," Kepert said.

Andrew Kaufman, president of Brookhaven Rail Terminal, said, "We're hoping the legislators will be able to sift fact from fiction and come to an informed decision." Kaufman said the project is expected to create 300 jobs, already has produced $40 million in investment and will reap environmental benefits by reducing truck traffic on area highways.






Yaphank, NY "Brookhaven Rail Terminal: Rural India Supporting Trust

From: Richard Thomas
Sent: Friday, September 14, 2012 1:11 AM

Subject: Rural India Supporting Trust

The "Rural India Supporting Trust, Indu Rawat Trustee," has the same address (38955 Hills Tech Dr, Farmington Hills, MI) as the company that makes the 5-Hour Energy drink, and the same address as Oakland Transportation Holdings LLC and Brookhaven Terminal Operations LLC.

You can also see the charity's Income Tax filing.  The latest, for 2010, was filed in August 2011. 

In 2009, the charity had $623,708,909.00 in contributions.  In 2010, there were no contributions received, but the charity made $56,795,492.00 in investment income and $364,297,004.00 income from "sales of assets other than inventory."

Indu Rawat is the Trustee and K. Pathak, SN Kumar Sharma, and Madhu Aswal are directors.

I now know how "Oakland Transportation Holdings" got its name. 

Farmington Hills, Michigan, is in Oakland County.

Here are some companies that have the same address in Farmington Hills, Michigan:

        Rural India Supporting Trust, Indu Rawat Trustee

        Innovation Ventures, LLC (established in 2000, incorporated in Michigan)
        Living Essentials, LLC (established in 2008, incorporated in Michigan) --- the makers of 5-Hour Energy
        ETC Capital, LLC (Ted Mills, Managing Director; Alan Gocha, Managing Director)
        Michigan One Funding LLC (Ted Mills, registered agent, 03/06/2009)
        Micro Dose Life Sciences

        Oakland Law Group Pllc

        Nevada Challenger LLC (owns the company aircraft)

        Pikeville Leasing, LLC
        Millard Leasing, LLC dba Black Rock Coal, LLC

        Oakland Transportation Holdings LLC
        GTR Leasing, LLC (Ted Mills, Managing Director)
        GTR Leasing Investment One, LLC (Ted Mills, registered agent, 03/03/2009)
        US Rail Holdings (established 2009)
        US Rail of NY LLC (Ted Mills, President; Leslie E. Savoye, General Manager, )
        Brookhaven Rail LLC
        Brookhaven Terminal Operations LLC (09/2011)
        Brookhaven Rail Freight Services LLC (Articles of Organization filed 09/12/2011 in New York State, but address Farmington Hills, MI)
        Brookhaven Eastern Holdings LLC (registered agent: Oakland Law Group, 08/24/2011, filing state: NY; qualifying state: MI)
The only company not in Michigan seems to be Nevada 5, Inc., which has a 98% equity interest in Oakland Transportation Holdings LLC and controls the Brookhaven companies.

Nevada 5 Inc. was formed 04/01/2009, and all the officers (president, secretary, treasurer, and director) are Manoj Bhargava, 38955 Hills Tech Drive, Farmington Hills, MI.

The address of Nevada 5 Inc. is 6100 Neil Road Suite 500, Reno, NV,  and the address of its registered agent is the Corporation Trust Company, 311 S Division St, Carson City, NV, which is just the address for "service of process."  Actually, both addresses appear to be merely for "service of process."


Wednesday, September 12, 2012

"We'll use "state-of-the-art" containers when we transport the solid waste." [?]

From: Richard Thomas
Sent: Wednesday, September 12, 2012 5:56 PM
Subject: We'll use 'state-of-the-art' containers when we transport the solid waste.

I noticed the following little paragraph in today’s Newsday story:
Andrew Kaufman, president of Brookhaven Terminal Operations, said if the depot was asked in the future to move solid waste, it would do so in accordance with all federal regulations and use state-of-the-art containers that are both water and air tight, preventing any unpleasant odors from escaping.
These "state-of-the-art" containers are probably like the "state-of-the-art" landfill liners Brookhaven residents were promised would never leak.

And there is the tricky part of getting the solid waste into the water and air-tight container.  I'm pretty sure they will need to take off the lid for that.

Wait! Wait!

I thought there was a signed legal agreement between the Town of Brookhaven and US Rail.

U. S. Rail's settlement with Brookhaven Town says it won't be handling any waste products:
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.”
I can't imagine any federal law or regulation that would require a railway company to transport solid waste.

Oh, but that was a settlement between U S Rail and the Town of Brookhaven. 

U S Rail Corporation sold its interest in the BRT site to a related company, GTR Leasing and changed the name of its Brookhaven operation from "U S Rail of NY LLC" to "Brookhaven Rail."

Oakland Transportation Holdings then acquired an equity interest in Brookhaven Rail and acquired GTR Leasing. 

Nevada 5, in turn, owns 98% of the equity in Oakland Transportation Holdings of Farmington Hills, Michigan.

So I guess the any agreement between the Town of Brookhaven and U S Rail is moot, as U S Rail Corp of Ohio is no longer involved, if it still exists.

Or maybe the agreement applied only to the BRT site. 

The new 230 acres is clearly not "the BRT site" so there aren't any restrictions on its use---unless covenants are attached to the sale.

Besides, the name in the Newsday article was "Brookhaven Terminal Operations." 

"Brookhaven Terminal Operations LLC" is also based in Farmington Hills, Michigan.  (The names change every couple of months.)

While they were at it, they also created the following new companies in Farmington Hills, Michigan:

    Brookhaven Rail Freight Services LLC

    Brookhaven Eastern Holdings LLC

All three have the same address.

The lease of $1,000 annually that was to be paid by U S Rail to Sills Realty, however, was transferred to the new owners.

It's too bad the "Stipulation of Settlement" with U S Rail is ineffective, since it played a major role in the Final Environmental Assessment of the Surface Transportation Board's Section of Environmental Analysis, which allowed U S Rail to build its railroad in Yaphank in the first place.

U S Rail also has specifically agreed to not handle solid waste at the BRT site.
But that Final Environmental Assessment document also touted how the U S Rail project would reduce truck traffic to the two asphalt plants, when it turns out, it actually increases truck traffic.

It seems odd that the Section for Environmental Analysis didn't bother to look up the distance of the two asphalt plants from the barge terminals currently be used for delivering the aggregate and compare the length of the trips from the BRT versus the length of the trips from the barge terminals. 

If they had, they would have seen that the justification for building the rail terminal, providing crushed stone aggregate to two asphalt plants by rail and reducing truck traffic, did not reduce truck traffic at all, but instead greatly increased it.

The (faulty) Final Environmental Assessment was based solely on the delivery and transloading of stone aggregate.  The assessment said the rail cars would return empty.  No other freight was considered.


Deputy Suffolk County Executive Says Don't Bother Coming to Protest Land Sale Unless You're Coming with a $20 Million Check

The Suffolk County Deputy County Executive, Jon Schneider, says that you shouldn't bother coming to Hauppauge to protest the sale of 230 acres to Oakland Transportation Holdings on Thursday unless you're coming with a $20 million check.
 If you don't have a check for $20 million, the Deputy County Executive suggests you stay home.
 Ah, another public servant demonstrating his expert skills in communicating with Suffolk County citizens.
 Hamlet Reporter

Push to sell land for Yaphank rail depot

September 11, 2012 by SARAH CRICHTON /
Thursday is make or break for the $20 million sale of Suffolk County land for an expansion of the rail depot at Yaphank.
Several legislators said Tuesday they still had reservations about how they would vote on the resolution for the sale of the 230 acres to operators of the Brookhaven Rail Terminal.
But deputy county executive Jon Schneider said the county would have to lay off the equivalent of "approximately 300 people" if the sale, which is expected to bring $19.335 million into county coffers after commissions are taken off, does not occur.
"There is no give in this budget -- we don't have any money," Schneider said Tuesday, adding most county legislators understood they had already approved the land as surplus, included the sale's proceeds in this year's operating budget and accepted "getting trucks off the road is a good thing."
Legis. Ed Romaine (R-Center Moriches), who is running for Brookhaven Town supervisor, said he still had not decided how to vote. "I have serious concerns about how the land was offered for sale and what will happen after the sale," he said, noting there are "positives" in reducing truck traffic.
Legis. Rick Montano (D-Brentwood), who is running for State Senate, said he too has yet to decide. "I'm concerned that potential increases in the transfer of garbage could result and that, with some other environmental issues, need to be looked at."
Legis. Kate Browning (WF-Shirley), whose district includes Yaphank, echoed those concerns but also wants to see more community input if the sale proceeds. "I think an advisory community board, that includes all parties, is the way to address a lot of these concerns."
Andrew Kaufman, president of Brookhaven Terminal Operations, said Tuesday the rail yard had worked with the community in the past and would "absolutely participate in an advisory board."
Legislators are expecting Queens residents to testify at Thursday's meeting, concerned the Yaphank operation will eventually be used to transport garbage that must pass through their neighborhood.
A contingent of residents from Queens addressed Suffolk's ways and means committee hearing on the issue late last month, expressing opposition to an increase in rail freight across Long Island in general.
Kaufman said if the depot was asked in the future to move solid waste, it would do so in accordance with all federal regulations and use state-of-the-art containers that are both water and air tight, preventing any unpleasant odors from escaping.
Said Schneider: "Unless those folks from Queens are coming out with a $20 million check for the county, I would suggest they stay home."
< back to article

What is the real motivation behind the Brookhaven Rail Terminal?

What is the real motivation behind the Brookhaven Rail Terminal?

We are led to believe that the terminal will reduce truck traffic and  therefore has environmental benefit.  The claimed purpose is to transport aggregate for two asphalt plants–one in East Setauket and the other in Deer Park.  But analysis suggests that it will likely have just the opposite effect, perhaps increasing truck traffic on local roads 7.7 times (see and
 As a business model, making sense of the BRT is hard to  figure out.  Why is all this money being invested in a rail terminal way out east?  Where are the investors expecting to make money?  And why are some 200+ additional acres needed by the developing companies? 
 I would like to suggest that the money to be made is not in what is being transported onto Long Island, but what could be transported off the island.
 SAND.  And we all know we have plenty of that.
The site has been placed under the jurisdiction of the Federal Surface Transportation Board, removing it from local control. They are claiming that they are building an intermodal rail terminal.   “Site preparation” (they would probably not call it mining) has already required the removal of large quantities of sand.  They are purchasing from the county an additional 231 acres for $20 million. 
 What are the economics of SAND?
 An internet search reveals that the average PROFIT on mining sand is about $25/ton (at the rail head).  I assume “profit” is after all the costs of production, including land purchases.  BRT “site preparation,” requiring the removal 10 feet of sand on 200 acres, yields a profit of $81,675,000.  If they go 20 feet deep, the profit is $163,350,000.  Now this is a back of an envelope calculation, and I admittedly know nothing about the economics of sand mining.  But I suspect a smoke screen has been put up, designed to direct our attention away from their real motivations.
 The County appears to have been bamboozled into selling 231 acres for only $20 million.  And note, the resolution of sale, gives to the buyer “All mineral and/or air rights to the premises.” (Article I., Section 1-1, Paragraph C.  I do not find any covenants that would restrict removal of sand (how could there be–it’s just “site preparation”).
 John Deitz

1 acre = 43,560 sq. ft.
1 cu ft sand = 75-100 lbs
1 acre-ft sand = 3,267,000 lbs or 16,335 tons
Average profit in sand mining = ~$25/ton
1 acre-ft sand yields a profit = ~$408,375
200 acres, 1 ft. deep yields profit of $8,167,500
200 acres, 10 ft. deep yields profit of $81,675,000
200 acres, 20 ft. deep yields profit of $163,350,000.

Yaphank Land Sale Update

From: "Slaughter, Joshua" <>
Date: September 11, 2012 4:19:52 PM EDT
To: "Slaughter, Joshua" <>
Subject: Yaphank Land Sale Update
California_study.pdf (California Environmental Protection Agency)
STB OCT162007 TESTIMONY--CHAIR C D NOTTINGHAM.pdf (Federal Surface Transportation Board)
land sale agreement.pdf (Suffolk County to Oakland Transportation Holdings, LLC)

Legislator Browning is urging all residents and stakeholders to attend Thursday’s meeting [September 13, 2012] of the Suffolk County Legislature in Hauppauge. The meeting begins at 9:30 am and anyone can fill out a card to speak.

The legislature will be voting on IR 1695-12, which seeks to sell 231 acres of county land in Yaphank to Oakland Transportation.

I am attaching important documents that provide a wealth of information regarding the impacts this type of facility can have, as well as the federal exemptions it would enjoy.

The California Air Resources Board conducted an air quality study (attached) around a 243 acre intermodal rail yard in Commerce, California and the results are concerning. Cancer risks are clearly raised in the vicinity of the site due to diesel emissions from locomotives and trucks. If this land is sold it could potentially become the largest rail yard in the United States and have lasting health impacts on the surrounding community.

Also attached is testimony from the Chairman of the Surface Transportation Board (STB), which has jurisdiction over rail yards, explaining why and how these facilities are exempt from local and state environmental studies. The most concerning aspect of the testimony can be found on page 5 where it states that an already-authorized rail line does not have to have a formal environmental review when expanding its rail line or ancillary services. The 231 acres can be considered an expansion of Brookhaven Rail Terminal’s already-authorized 28 acre site. Since no SEQRA has been conducted for the 231 acres, and based on these statements from the Surface Transportation Board, NEPA likely wouldn’t have to be followed either. There could potentially be no environmental review at all. The 88 acres already owned by Brookhaven Rail Terminal is currently being cleared with no environmental review or permits. It is safe to say the same will happen on the 231 acre site. It is also important to note this land is in the Carmans River watershed and no review of the impacts on the river has been done.

Legislator Browning is deeply concerned about the lack of information and absence of any protections or stipulations in the contract of sale (attached). In fact, the contract allows extended access on Glover Drive, which would allow for trucks to enter and exit onto Yaphank Ave. Truck traffic, noise, hours of operation (currently 4am-4pm) and other quality of life issues need to be addressed, but to date have not been discussed. In addition, there are no restrictions on what type of goods could be brought into the facility in the future. If the land is sold on Thursday the opportunity for local control will be lost.

There will be residents from Queens attending the meeting on Thursday because they live next to a rail yard in Glendale. The impacts have been extremely negative for them and will only increase if Yaphank expands. All trains coming to Suffolk County come through Glendale. This is a regional project that will affect communities from Yaphank to Queens, and a regional study must be conducted to determine those impacts.

Lastly, only one appraisal was conducted prior to the contract of sale. Normally the county conducts 3 independent appraisals when purchasing land to ensure the taxpayers are getting the best price, so why not follow the same process when selling land?. Further concerns regarding the process arise from the fact that this is a direct sale and was not done through a Request for Proposal (RFP).

There are far too many questions and not enough answers to sell this land on Thursday. Come out and support your community. The legislature needs to hear from the community. This may be your last chance to be heard.   

Joshua P. Slaughter 
Suffolk County Legislature
Legislative Aide, Media Contact, Third Legislative District
1120 Montauk Hwy., Suite G 
Mastic, NY 11950 
Phone: (631) 852-1300 Fax:(631) 852-1303

Sunday, September 9, 2012

US Rail -- And The Strange Story of the Railroad that Claimed It was Building a Spur of Its Tracks in Ohio at Sills Road in Yaphank, NY

From: Richard Thomas
Sent: Friday, September 07, 2012 11:21 PM
Subject: US Rail -- And The Strange Story of the Railroad that Claimed It was Building a Spur of Its Tracks in Ohio at Sills Road in Yaphank, NY

I found the Surface Transportation Board's document that tells what U.S. Rail gave as the purpose of the BRT:
    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.
At least that was the purpose U.S. Rail gave to the Surface Transportation Board so the Board's Section of Environmental Analysis could write its Environmental Impact Report.  

The aggregate previously arrived by barge at Port Washington and Port Jefferson.

I wonder whether the STB's Section of Environmental Analysis is required to re-analyze the project if what is being shipped in and out (or the amount being shipped) changes.  Perhaps the Construction and Operation Exemption is for the purposes stated only.

If so, the exemption is valid only for shipping aggregate in from upstate New York and empty cars back out. 

There wouldn't seem to be a lot of money in that, at least not so much that a company would want to purchase many acres of additional land for that purpose.

Since the New York and Atlantic Railway (which took over the LIRR's freight service in May 1997) brings the aggregate to the switch in Yaphank (just east of the Sills Road overpass), and only at that point is the traffic "interchanged" to another railroad carrier, U. S. Rail, for traveling the last few thousand feet. 

The U. S. Rail track appears to be merely a mechanism of putting the site under the regulation of the Surface Transportation Board and exempting it from local government oversight through the federal preemption.

The document gave me the names of two more companies to look up:

        Scatt Materials and
        Empire Asphalt.

Most of the New York and Atlantic Railway's customers have their own spurs (like LIPA). 

I don't know why Scatt Materials and Empire Asphalt didn't just build plants near the railroad tracks and construct their own spurs --- rather than have track constructed and operated by an entirely different railway company (U.S. Rail) to take the cars from the New York and Atlantic Railway and move them into the BRT.  Then load the material into trucks to take to the two asphalt plants.

(The Environmental Analysis report says that the Scatt Materials Plant and Empire Asphalt Plant are "existing facilities" of Sills Road Realty, but they give every appearance of being separate independent companies.  Sills Road Realty, LLC, is based in Syosset.)

When U.S. Rail is described as a short-haul railway company, they mean very short-haul. 

Empire Asphalt LLC is located in East Setauket (56 Comsewogue Rd Suite 2) and was established in 2007.  It's directly adjacent to the LIRR line.

The Empire Asphalt plant is 14.7 miles from the BRT site.

Scatt Materials is an wholesale asphalt company with offices at 44 South 4th Street, Bay Shore, (up by the LIRR main line near Grand Ave), and is a subsidiary of Scalamandre Construction of Freeport.  Scatt Materials also handles brick and stone.

The Scatt plant is located 22.6 miles from the BRT site (even though the address is Bay Shore, it's really almost Deer Park). 

The Scatt plant is two blocks south of the LIRR main line, not fair from the Astro Ready-Mix plant which already has rail delivery, but, due to other businesses nearer the tracks, it looks like it is too far away to build a spur there.

The Empire Asphalt plant on the other hand is adjacent to the LIRR Port-Jeff line, so it seems odd that it wouldn't be cheaper to have a spur directly into their facility so the New York and Atlantic railway could directly deliver the aggregate. 

Then they could avoid all the transloading and shipment by truck from Yaphank to East Setauket, and they wouldn't need U.S. Rail at all.

Empire Asphalt Plant, East Setauket, NY
Above: Aerial View of Empire Asphalt, East Setauket, NY.  Note railroad (Port Jefferson line) at north boundary of site.

The two plants now use 250,000 tons of crushed stone annually.  That requires 15-18 truckloads of aggregate per day per plant from the barge terminal docks at Port Jefferson and Port Washington. 

So counting each direction as a "truck trip" (from the dock to the plant, 1 trip, from the plant back to the dock, another trip), for both plants there are 60-72 truck trips per day.

I don't understand how moving the truck trips from going "to and from the docks" to going "to and from" the Brookhaven Rail Terminal reduces truck traffic on Long Island. 

The trip from Port Jefferson harbor to Empire Asphalt in East Setauket is very much shorter than the 14.7-mile trip from the BRT in Yaphank to East Setauket.

The "Port Jefferson Aggregates Terminal" operated by Tilcon (300 Beach St., Port Jefferson, ) is only 1.9 miles away!

So instead of 30-36 truck trips of a distance of 1.9 miles each, you get 30-36 truck trips daily that are each 14.7 miles long! 

You get 7.7 times more truck traffic, not less!

Truck Route From Brookhaven Rail Facility to Empire Asphalt
Above:  Truck Route from Brookhaven Rail Terminal to Empire Asphalt in East Setauket, NY.
Compare to distance from Port Jefferson harbor to factory site.

Going from Yaphank to Deer Park wouldn't seem to cut down on a lot of truck traffic either. 

If the Scatt Materials plant gets it aggregate from the Port Jefferson Terminal, then the distance is 22.4 miles compared to the 22.6 miles from the BRT.

If, instead, the aggregate is brought from Tilcon's Port Washington Aggregate Terminal at 145 West Shore Road,  you only save a couple of miles.  Port Washington to the Scatt Materials Plant is 24.6 miles.

They are investing a lot of money to save a couple of miles.  Maybe transportation by train all the way from upstate New York is cheaper than transportation by barge.

The BRT may in fact be introducing more truck traffic.  One source, Atlantic Northeast Rails & Ports Newsletter, indicates that in addition to transloading the 250,000 tons of aggregate for the two plants, an additional 250,000 tons of aggregate will be brought in and made "available for other users."  (See: )

That doubles the amount of aggregate coming from upstate New York.  I suppose it just means that the "other users" of aggregate who used to get their material by trucks traveling from the docks or coming by road over the bridges will now get their aggregate by truck from Yaphank.

But it isn't obvious the amount of truck traffic on Long Island is any less.  If the "other user's" asphalt plants and facilities are located in Nassau or western Suffolk, the truck traffic might actually increase, as it does in the case of the Empire Asphalt plant in East Setauket. 

BRT is a transloading terminal.  The material doesn't come in on a railroad spur directly into a plant.  The material goes to Yaphank then gets transloaded onto a truck.

Transloading can reduce truck traffic on Long Island only if trucks don't have to travel long distances from BRT in Yaphank to the warehouses and plants elsewhere.

The New York Atlantic Railway does carry solid waste, which has caused some problems in Queens.

(See the Civics United for Railroad Environmental Solutions letter in the Environmental Assessment.)

The U.S. Rail System map (see below) doesn't show any operations in Paterson, New Jersey, so that development may be stalled or extinguished.

U. S. Rail's settlement with Brookhaven Town says it won't be handling any waste products, so I may very well be wrong in my speculation that the reason for building a rail terminal in Yaphank has something to do with its proximity to the Brookhaven Town Landfill.
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.”
But we know from our Article 78 with the Town how effective legal agreements and decisions are.

I can't imagine what "unless required under federal law or regulations" might mean. 

What federal regulation would require a private company to incinerate, treat, manage, dispose, transport or transfer solid waste and construction and demolition debris"?

Also, it is important that another company involved in the Brookhaven Rail Terminal, the Suffolk and Southern Rail Road, first applied to the Surface Transportation Board to get an exemption to sublease track from

    Custom Recycling LLC

Custom Recycling/Nicolia Realty would own the track (but Custom Recycling is not a carrier), and Suffolk & Southern Rail Road would become a carrier by applying to lease and operate the track.  That would convert the track from an industrial spur ("industry trackage") operated by a non-carrier into a railway operated by a carrier, which would make it exempt from local regulation.

Suffolk & Southern Rail Road stated that it wished to lease 1,280 feet of rail from Custom Recycling at the Brookhaven Rail Terminal at Yaphank.  This was on 12 April 2007. 
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.

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.
They had out-smarted themselves. 

By becoming a rail carrier rather than just the operator of their own industrial spur, they would become exempt from local regulation, but in order to be exempt from local regulation and environmental review the track they wished to operate had to be track that had been first authorized by the Surface Transportation Board, and the Board itself requires an environmental review.

By August 2007, not only had the investors, Custom Recycling and Nicolia Realty decided not to start a new railroad carrier (in order to get an federal exemption from local regulation), they had reorganized as Sills Road Realty and contracted out getting the railroad carrier part to qualify for the exemption. 

On August 19, 2007, a new sign was on the gate.  It had the same name on it as the current sign: U.S. Rail.

U.S. Rail then immediately started work, which the Town of Brookhaven attempted to stop. 

U.S. Rail said it wasn't constructing new trackage at the Yaphank location.  It was just constructing a "spur" for the track it operated in Ohio! 

(That there were miles of intervening trackage owned by other railroads was immaterial, since the Yaphank spur fell under the "section 10906 exception for the construction and operation of ancillary track.")
    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.

I expect the economics of the BRT depends on more than just delivering aggregate for two asphalt plants (or even doubling that amount and making the surplus available to "other users").

And how many acres of land does U. S. Rail need to "transload" a few railway cars of aggregate every night?

The record shows that Sills Realty and U.S. Rail are untrustworthy, so I don't know how one would find out their true intentions.  (You would probably need a confidential informant, since their public documents obfuscate as much as they reveal.)

John and I drove by the BRT today, and huge amounts of sand have been and continue to be excavated.  It made me wonder how the east side of Sills Road is going to be kept from falling off into the pit.


U.S. Rail System Map