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

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