A long-overlooked loophole allows railroad infrastructure to be built with virtually no local permit requirements at all
n early 2012, residents of this sleepy town began to notice an unusual amount of activity around the Grafton & Upton rail yard at the north end of town. An old barn that had stood for over a century was knocked down. Bulldozers came out, clearing the land.
The tiny 16.5-mile railroad had been nearly defunct, but was purchased in 2008 by Jon Delli Priscoli, a major local developer with a penchant for railroads; he also owns a Thomas the Tank Engine theme park 70 miles away.
At least one town official who visited the site to ask about the construction said he was told that the railroad’s activities weren’t subject to review by the town.
In December 2012, Delli Priscoli finally unveiled his plans to more than 100 residents at a meeting in the municipal gym. The railroad yard, he announced, was to become a propane transfer or “transloading” facility, meaning that propane would be brought there by rail and unloaded onto tanker trucks to be distributed. With four 120-foot long, 80,000-gallon storage tanks to be filled by up to 2,000 train tank cars a year, it would be the biggest rail propane facility in Massachusetts.
Residents were dumbfounded: The location was in the middle of a residential neighborhood, less than 2,000 feet from an elementary school and atop the town’s water supply. But, aside from an application to the state’s fire marshal (still unapproved by publication date), the railroad’s owner had not requested nor obtained, town officials say, any local permits, environmental assessments, zoning variances — or permission.
And as residents would learn, it was the railroad’s position that it didn’t have to: Being a railroad, the Grafton & Upton was exempt from any state or local law that interfered with its business, a legal doctrine known as pre-emption.
As one resident put it, “You mean we have no rights?”
Around the country, in towns as small as Grafton and as large as Philadelphia and Chicago, communities are beginning to ask the same question as the domestic energy boom makes the expansion of railway infrastructure — to host trains carrying crude oil, propane and ethanol — a profitable venture indeed.
After more than a dozen serious explosions, fires and spills around the country, those trains have become notorious. But an investigation by the New England Center for Investigative Reporting and Al Jazeera America suggests a critical part of the energy-by-rail picture has largely escaped national attention: the rail industry is exploiting historic exemptions from state and local laws to build often-massive transfer and processing stations free from virtually any permit requirements and without regard for basic laws protecting the communities in which they are based.
Railroads are exploiting a large, surprising loophole in federal regulatory law, critics say, and they are doing so with the backing of an obscure federal agency, the Surface Transportation Board, which has been quietly creating what some call a “regulation-free zone” and asserting a jurisdiction over railroads that trumps health and safety laws.
The result is a “regulatory hole you could drive a train through,” says Ginny Sinkel Kremer, an attorney who represents the town of Grafton in its legal battles against the transloading facility and the STB.
Read More of this article by By Isaiah Thompson, Al Jazeera America