The oversight of the Surface Transportation Board

No application submitted yet for Shamrock Rail

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Last year, Winters Bros. closed on over 200 acres of land neighboring the current Brookhaven Town landfill in Yaphank just south of Horseblock Road. The purchase of the property, according to Will Flower, senior vice president, will allow Brookhaven Rail, which will eventually operate under Shamrock Rail, to create a rail terminal facility to haul out the area’s garbage.

According to a Surface Transportation Board spokesperson, Brookhaven Rail LLC (Brookhaven Rail), a Class III rail carrier, has filed two petitions for exemption in furtherance of a planned solid-waste rail-transfer facility, which would be owned by Brookhaven Rail and for which Brookhaven Rail intends to provide rail service.

In the petition filed on June 25, 2020, Brookhaven Rail sought an exemption from the prior approval requirements for Brookhaven Rail to construct and operate approximately 23,680 feet of new rail line to be located on Parcel D of the Brookhaven Rail Terminal in the Town of Brookhaven.

In October of 2020, Thomas Wilcox, attorney for Brookhaven Rail, penned a letter to the STB on seeking clarification from the decision to deny the petition. The decision rejected a petition for a land-use exemption. The decision stated if BHR wished to seek an approval from the board, it must file an application and provide information required under the statute and board’s regulations.

However, the attorney first claimed the decision did not mention a notice of intent requirement; second, there should be no need to file one; and third, Brookhaven Rail has already met the requirements by providing service copies of its complete petition filed to the Governor of New York, the Town of Brookhaven, New York State Department of Environmental Conservation, Long Island Regional Planning Council, Long Island Rail Road, and New York & Atlantic Railway.

In November of 2020, the board reported if BHR submits a full application for a land-use-exemption permit, it need not comply with certain requirements, but “in lieu thereof must serve this decision to the entities listed in at least 10 days before filing its application and certify in its application that it has done so.”

The permit would exempt Brookhaven Rail from a local zoning law that Brookhaven Rail claims would otherwise prevent such a facility from being constructed on Parcel D. The board declined to act, as of 2021, on Brookhaven Rail’s request before examining the environmental impacts.

“The board may only issue a land-use-exemption permit if it determines that the facility does not pose an unreasonable risk to public health, safety, or the environment at that location, after weighing the facility’s potential benefits to and adverse impacts on public health, public safety, the environment, interstate commerce, and the transportation of solid waste by rail,” the STB 2021 report reads.

Also, in 2021, after Citizen’s Campaign for the Environment submitted a claim of a potential conflict of interests with a third-party contractor for the environmental review, the acting director of the Surface Transportation Board’s Office of Environmental Analysis (OEA) issued a letter concluding that there was no basis for the Citizens Campaign for the Environment’s allegation.

According to Winters Bros. senior vice president Will Flower, the company has yet to file any applications with Brookhaven Town or the STB.

“We are in the planning and outreach phase,” he said, stating they will be pushing for more outreach to ensure everyone understands the project. “Eventually, we will file an application with the Surface Transportation Board and with the NYS-DEC for a transfer-station permit.”

The rulings thus far, he said, were to ask the STB if the project required an Environmental Assessment of an Environmental Impact Study. It was determined a full-blown EIS was required.

“We are working on it. This is a big and important project; we agree a full-blown EIS is warranted,” he added. “We are not exempt from having to do the EIS. We’re fine with doing the full EIS and when we file with the STB, we will also request a public meeting be held to ensure everyone has a say.”

The decision, according to Michael A. Booth, Surface Transportation Board public affairs officer, was denied a request for exemption prior to submitting an application, which is fairly “routine,” and can make the process quicker if an applicant feels they are exempt.

“They asked for the ‘transaction’ to be exempt from STB application requirements. All railroads fall under STB oversight, even if certain requirements for transactions are waived,” the spokesperson explained of the requested exemptions. “It was denied, so now an application has to be made.”

The board, he added, will not make a final decision on an application until all information is submitted, including an environmental study.

According to the town, the 238-acre southern portion of the Brookhaven Rail Terminal is zoned L1 Industrial and was approved for rail-supported general development in 2016 and 2017 as part of a federal court settlement. 
The 2016 federal court Stipulation of Settlement assured that the town has and will continue to have significant environmental oversight overall development at the Brookhaven Rail Terminal properties, a town spokesperson explained.
“The town continues to assert its environmental oversight before the United States Surface Transportation Board, even though the STB has exclusive jurisdiction over the rail portion of the development, including both track and rail support structures,” the spokesperson added.
As part of the settlement, the town also requested and obtained a 60-plus-acre open space/green space portion of the BRT site. The town has also recommended the elimination of a previously planned tunnel underpass beneath the LIRR tracks needed to connect the several properties and replacing the tunnel underpass with a short ground-level spur track, which would eliminate excavating and removing over 500,000 cubic yards of protected sand otherwise needed to accommodate the tunnel underpass. To do this, the 60-plus-acre open space/green space parcel was slightly reconfigured and the actual total green space area increased in overall size. This will allow the rail to operate solely above ground.

“At the end of the day, Winters Bros. is working on a solution,” Flower said in regards to the closing of the landfill. “The root cause of the problem is too much waste.”

The project is currently in the development of an application, Flower explained. Once an application is submitted, a public hearing will be held. A New York State Department of Environmental Conservation permit will also be required. The project is expected to take several years to complete, with an anticipated ground-breaking in late 2022.

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