Brookhaven Community Coalition's 19 Oct 2012 Letter to the New York State
Department of Environmental Conservation referenced in the 27 October 2012
Newsday article is attached (Murray'sLetterToDEC.pdf).
Saturday, October 27, 2012
Newsday: Yank-Yank-Yaphank !
State urged to yank Yaphank landfill permit
Originally published: October 26, 2012 7:13 PM
Updated: October 26, 2012 9:14 PM
By sophia.chang@newsday.com
Photo credit: Amanda Voisard | Adrienne Esposito, executive director of Citizens Campaign for the Environment, speaks during a press conference to announce the results of the Long Island Clean Electricity Vision study that was commissioned by Renewable Energy Long Island (reLI) and environmental, public interest and other advocacy organizations at Farmingdale State College. (Sept. 04, 2012)
A group formed to provide community input on the management of the Brookhaven Town landfill has asked the state to yank its permission for the Yaphank facility's operation.
Lawyers for the Brookhaven Community Coalition sent a letter dated Oct. 19 to the state Department of Environmental Conservation, asking that the town's permit to operate the landfill be suspended based on "the failure of the Town to comply with the terms and conditions of the permit."
Adrienne Esposito, a member of the coalition and executive director of Citizens Campaign for the Environment, said the landfill is "run very sloppily" and fails to meet regulations about proper record-keeping, maximum height and containment of dirt and debris.
"This is the warning shot for the landfill," she said. "We put the town and the DEC on notice that the landfill has to be run within the regulations."
Brookhaven officials did not respond to a request for comment Friday.
"DEC has received the petition and takes all such petitions very seriously," DEC citizen participation specialist Aphrodite Montalvo said. "The issues raised are currently being reviewed by DEC staff."
Esposito said the violations include the system that is supposed to contain contamination.
"It broke down more often than it worked correctly. It needs to be fixed," she said, referring to clogging in the system and failures of the pumps and motors. "The leachate system needs to be upgraded."
In August the coalition filed a claim in state court to prevent Brookhaven from seeking expansion permits to grow the landfill 50 feet higher. The landfill generates more than $40 million a year for the cash-strapped town.
The letter to the DEC notes that the landfill appears to be "exceeding" the current permit's maximum height of 270 feet, based on "visual observations."
Esposito said she hopes the coalition's latest action will spur the town to operate the landfill more responsibly and avoid a potential lawsuit to close the landfill.
"It's not the Wild West. It's Long Island, and they should be operating in a way that protects us and the environment," Esposito said. "We wanted to take this action prior to a lawsuit to close the landfill. They don't want a lawsuit, and we don't want a lawsuit. But we will do a lawsuit."
Wednesday, October 10, 2012
From CCE: Selling Suffolk Land Is Bad Deal For The Environment
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
By rick.brand@newsday.com
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"
http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1020&context=pelr
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.
See http://lautenberg.senate.gov/newsroom/record.cfm?id=304435.
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.
From: http://switchboard.nrdc.org/blogs/amall/another_loophole_for_the_oil_a.html,
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.
Richard
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
By rick.brand@newsday.com
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
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, lsavoye@oaklandtransportation.net )
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."
Richard
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