FREQUENTLY ASKED QUESTIONS
ABOUT THE
GRAFTON-UPTON RAILROAD – NOVEMBER, 2011
What is the Grafton Upton Railroad?
The Grafton & Upton Railroad (G&U) is a privately owned railroad that has been in operation since 1876. The system starts at the interchange with CSX in North Grafton and terminates in Milford – a distance of about 15 miles, of which 5.4 are in Upton. The railroad provides freight rail transportation to customers in central and eastern Massachusetts.
Who are the present owners of the Railroad?
The railroad was purchased in 2008 by Mr. Jon Delli Priscoli. Along with the purchase of the railroad Mr. Delli Priscoli has also purchased a one-third membership in the Upton Development Group (UDG) and the G&U has an agreement to purchase and presently leases the yard from UDG. This site was formerly used by the Town as a landfill. The lease provides that the G&U has full control over the yard, including the right to use the yard for rail operations and all other lawful purposes.
What are their plans for the rail yard located on Maple Avenue?
The railroad’s plan for the site located at Maple Avenue, which is immediately adjacent to a long existing rail yard, is to be able to transload any commodity that is transportable by rail and truck, including wood pellets as well as hazardous and non-hazardous liquid products. These products will be brought in by rail and then transloaded onto trucks that will then deliver materials to their end destination in our region. In certain cases in the future, products will be brought into the yard by truck and transloaded onto trains. In some cases products may be stored on site for a period of time during the transloading process.
I hear that the Dana Company will be involved in the rail road in Upton. Who are they and what is their role in this operation?
The Dana Companies are providers of various transportation services, including bulk transportation, and are specialists in short and long-haul chemical common carrier transportation. A Dana Company affiliate, Grafton Upton Railcare LLC, has contracted with the railroad to provide transloading services “for and under the auspices and control of the G&U”. This includes all transloading services required by customers of G&U at the yard. Click here for a letter provided to the Town by counsel for the railroad on ownership and operations of the G&U yard.
What has the Town done to investigate the rights of the railroad?
In 2008, when the current owner purchased the railroad, he approached the Town to make them aware of his intentions for the site. The Town, acting through its Board of Selectmen retained legal counsel to investigate the rights of the railroad and advise the Town on whether or not the railroad could in fact develop the site as they outlined without land use or zoning permits from the Town of Upton. A copy of the legal opinion, which concluded that federal preemption, as described more fully below, applied and that, as a consequence, the Town could not require permitting, available by clicking here. Based upon this opinion the Board of Selectmen believes that the G&U is pre-empted from state and local regulations.
Why did the Board of Selectmen decide to form a railroad fact finding committee and what is the status of that committee?
The Board of Selectmen is very cognizant of the concern of residents whether an operation such as the railroads is appropriate for our Town and that residents are safe from the activities of the railroad. Despite the legal work done to this point, which as noted above, concluded that the Town was preempted from restricting the transportation activities, some residents have still expressed belief that the railroad does not have the right to operate as planned. The Board believes that in this case the best approach to investigating these concerns was to establish an independent committee of five people to look into the work already done, investigate further, and report back to the Board. Those members are one each from the Selectmen, Planning Board and Board of Health, and then two citizen at large members selected by the first three.
What are some of the definitions in federal law that is relevant to the situation in Upton?
Transportation: “(A) a locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility, instrumentality, or equipment of any kind related to the movement of passengers or property or both, by rail, regardless of ownership or an agreement concerning use; and
(B) services related to that movement, including receipt, delivery, elevation, transfer in transit, refrigeration, icing, ventilation, storage, handling, and interchange of passengers and property.” [49 U.S.C. §10102(9)]
Pre-emption: To come within the preemptive scope of §10501(b), activities must be both: (1) transportation; and (2) performed by, or under the auspices of, a rail carrier.
Rail Carrier: means “a person providing common carrier rail transportation for compensation . . . .” [49 U.S.C. §10102(5)]
Railroad: (A) a bridge, car float, lighter, ferry, and intermodal equipment used by or in connection with a railroad;
(B) the road used by a rail carrier and owned by it or operated under an agreement; and
(C) a switch, spur, track, terminal, terminal facility, and a freight depot, yard, and ground, used or necessary for transportation.” [49 U.S.C. §10102(6)]
Transloading: Transferring bulk shipments from the vehicle/container of one mode to that of another at an interchange point (U.S. Dept. of Transportation).
What are some of the important factors to consider regarding preemption?
- The railroad’s activities must be integrally related to the railroad’s ability to provide rail transportation services
- State and local permitting or pre-clearance requirements (including environmental requirements) are preempted
- Preemption is not limited to “economic” regulations
- Federal environmental laws may apply, but they can not be used to unduly restrict or burden interstate commerce or rail operations
- The substance of State and local regulations regarding health and public safety are followed by railroads even if preclearance and permitting regulations are preempted.
What activities are subject to local regulation and are not preempted?
- Manufacturing (in the case of the Town of Milford, MA Petition for Declaratory Order the Town prevailed because fabrication work was not transportation and was going to be performed by a non-railroad entity)
- Trucking on Public Roads
- Distribution Facility not involving transloading
Which agency has the authority to make a determination as to whether or not a local regulation is pre-empted?
The Federal Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempts local and state regulations of rail transportation facilities. That Act gave exclusive jurisdiction over “transportation by rail carrier” to the federal Surface Transportation Board (STB). The STB is responsible for regulating economic activities of rail carriers and promoting interstate commerce.
What is involved in asking the Surface Transportation Board (STB) to rule on whether or not the G&U is subject to local regulation in Upton?
to see a case that went to the STB from the Town of Ayer, Massachusetts. The Town has been advised that in order to be successful in such an endeavor we will need to have a legal theory and facts that support a decision that preemption does not apply, contrary to the earlier legal opinion received by the Town, and to retain Counsel in Washington that is skilled in this area of law. Most cases take at least six months to be resolved before an order is decided, and the legal expenses could easily exceed $50,000. If the Town were successful in obtaining a decision to the effect that the railroad’s activities at the yard were subject to local regulation, the Town could require the railroad to apply for various permits relating to the construction or operation of the yard.
If the Town were to ask for a declaratory ruling, can the Town stop the activities of the railroad until a ruling could be given by the STB?
The STB has exclusive jurisdiction over rail transportation by G&U. G&U is a common carrier, which means that it has an obligation to provide rail transportation service upon request by a customer. G&U can be relieved of this common carrier obligation only by means of an order of the STB permitting discontinuance or abandonment of operations pursuant to 49 U.S.C. 10903. The town could attempt to stop the activities of the railroad at the yard while a request for a declaratory order was pending at the STB by seeking an injunction from the STB or in Federal Court. In order to be successful in seeking an injunction pending a final determination on preemption, the Town would have to make a case that it is entitled to an injunction under traditional criteria applied by the STB and the courts, which would include a demonstration by the Town that it is likely to succeed on the merits, that it would suffer irreparable harm unless an injunction were granted, that the public interest would not be harmed by an injunction and that the alleged harm to the Town without an injunction outweighed the harm to the railroad by temporary cessation of its operations . The railroad would likely vigorously oppose an injunction, arguing that the criteria for an injunction could not be met and that rail transportation should be preserved pending a decision on the merits. The cost of seeking an injunction would be substantial, involving the preparation of legal briefs and testimony and participating in hearings, and the likelihood of success is not great.
Why can’t the Planning Board retain counsel in order to file for an STB ruling?
Under State law and the Town’s general by-laws the executive branch of government is the Board of Selectmen, and part of their duties is to retain counsel. This authority does not rest with any other board. There may be times when other boards believe attorney’s services are required, and in those instances the appropriate procedure is to request that from the Board of Selectmen. Furthermore, the only board that can enter into litigation on the Town’s behalf or bind the Town to a ruling such as an STB case is the Board of Selectmen. A declaratory ruling from a federal agency has been determined to carry the same weight as the decision of a court in civil litigation.
What local, state and federal agencies are responsible for monitoring the railroad’s activities?
There are a number of agencies that have responsibilities when it comes to a facility such as the G&U yard. Those are:
Surface Transportation Board: The STB is an economic regulatory agency that Congress charged with resolving railroad rate and service disputes and reviewing proposed railroad mergers. The STB is decisionally independent, although it is administratively affiliated with the Department of Transportation. http://www.stb.dot.gov/stb/index.html
Federal Railroad Administration: The purpose of FRA is to: promulgate and enforce rail safety regulations; administer railroad assistance programs; conduct research and development in support of improved railroad safety and national rail transportation policy; provide for the rehabilitation of Northeast Corridor rail passenger service; and consolidate government support of rail transportation activities. http://www.fra.dot.gov/. Click here for a copy of the presentation made by Mr. William Schoonover, Staff Director for the Hazardous Materials Division at the November 1, 2011 Board of Selectmen’s meeting.
US Army Corps of Engineers: The Army Corps regulates areas of land in Town that are below an elevation of 269 feet and thus are needed as flood storage capacity. A small portion of the railroad site is below this elevation. http://www.usace.army.mil/Pages/default.aspx
US Environmental Protection Agency: The EPA may have responsibility for some aspects of clean air and water. http://www.epa.gov/
State Department of Environmental Protection: The DEP has responsibility over the landfill capping and the adjacent Town-owned Glen Avenue Well Field. http://www.mass.gov/dep/
Massachusetts Department of Fire Services, the State Fire Marshalls Division of Fire Safety and the Massachusetts State Hazardous Materials Response Teams:
The Office of the Massachusetts Fire Marshal is a division of the Department of Fire Services, which is a state agency within the Executive Office of Public Safety and receives its assignments from the Director of the Office of the State Fire Marshal. All units work cooperatively to preserve life and property.
Code Compliance officers are responsible for ensuring uniform statewide compliance with the laws and regulations the State Fire Marshal is charged to enforce. The unit can be asked to look into any matter covered by MGL Chapter 148 or CMR 527. Code Compliance officers have statewide jurisdiction and are designated by the State Fire Marshal to support compliance efforts of local fire department officers and to enhance our fire prevention goals.
The Regional Hazardous Materials Response Program is an innovative response system designed to provide specialized response personnel and equipment to the 351 communities of the Commonwealth, to enable them to protect the public, the environment and property during incidents involving the release or potential release of hazardous materials. Six regional response teams are strategically located for a maximum of a 1-hour response anywhere in the Commonwealth. The regional teams also support local fire departments with technical information and specialized equipment.
What is happening with the site known as the former Upton landfill & Upton Fuel and Construction?
The former landfill and Upton Fuel & Construction is owned by the Upton Development Group. Operating under a consent order by the State Department of Environmental Protection the UDG is completing the process to line and cap the landfill. A portion of the landfill site will be utilized by the G&U for their operations.
The former landfill currently owned by the Upton Development Group (U.D.G), is being properly capped at the expense of U.D.G. The capping is being regulated by the Department of Environmental Protection and is under the supervision of the licensed site professionals, Woodard and Curran, Environmental Consulting Engineers. The completion of the capping should take place in the summer of 2012, and DEP certification should follow within three to six months. This process known as capping will greatly improve the groundwater protection to our municipal wells from contaminants that occurred while the site was used as a landfill. The site will continue to be monitored even after completion of the capping. Future use of the site has yet to be determined. The Town will be required to contribute to this cleanup and capping upon completion of the remediation.
What types of products does the railroad plan to bring into Upton by rail and transload onto trucks?
The G&U plans to transload wood pellets and various hazardous and non-hazardous products. There is no specific list of these items, what is transported is dependent upon the G&U’s ability to safely transload the items, and the contracts that they enter into with companies that want materials shipped. It is important to note that as a common carrier under federal law the railroad does not have the right to refuse the transportation of any products that they are able to carry. They must accept and transport all products for which a company contracts with them to do so.
Doesn’t the Town have any say in whether or not hazardous chemicals are brought into our Town?
The Town does not. All aspects of the transportation of hazardous materials are regulated by federal law, most of which for purposes of rail transportation is administered by the Federal Railroad Administration. The FRA has inspected the operations at the yard numerous times and is fully satisfied that the railroad is in compliance with the FRA regulations, including the hazmat regulations. Federal law preempts the application of any state or local laws that claim to govern the transportation of hazardous materials.
How do we know what hazardous materials are in rail cars coming into Upton?
Each rail car or truck that carries hazardous materials must have affixed to it a placard or a placard with an orange panel. The US Department of Transportation publishes a guidebook called the “Emergency Response Guidebook” which includes information on the placards, the numbers on them, and this identifies the hazardous material in the rail car or truck. Copies of this book are available free of charge at the Town’s Fire Department.
Does the railroad have to provide the Town with Material Safety Data Sheets (MSDS) for the hazardous materials that are brought into Upton?
Under federal law, as long as the materials are “in transportation” the railroad is not required to provide the Town with MSDS sheets. They are required to have a manifest or bill of lading with each train or vehicle. In the event of a chemical spill, the bill of lading will be made immediately available to the Town’s Fire Department so they can assess the appropriate way to respond.
How long can materials that are brought into Upton by rail remain on site before they must be removed?
Hazardous materials stored by a railroad on their track are considered to still be “in transportation” and thus have no limit on the length of time they can be stored.
What safety precautions has the railroad installed on the site to make sure that chemical spills do not occur, or if so they are contained?
We believe that the railroad is as concerned about safety as the Town of Upton is. To that end they have taken several steps to ensure that their site is equipped to avoid or prevent a chemical spill, and in the unlikely event that such a spill were to occur, to quickly and safely contain the spill. Those steps include:
- An impervious material has been poured under the area of track where the trains are transloaded. That material is quite thick and prevents any material that does fall from the tank car from permeating the soil.
- Tank cars are unloaded from the top, rather from the bottom. This protection further eliminates the likelihood that there will be a spill.
- The railroad employs a vacuum system when cars are being unloaded which reduces the likelihood of spills, and prevents odors from escaping.
- The railroad is also constructing a detention basin so that if a spill were to occur it would flow into this basin which provides containment. The railroad plans to contract with a company who can test the materials and safety dispose of those off site.
- The railroad has contracted with an affiliate of the Dana Companies, which has considerable expertise and experience in the safe handling of hazardous materials and which is in charge of training programs and ensuring that transloading operations are conducted in accordance with the applicable federal regulations.
Should I be concerned that the railroad’s site is very close to one of the Town’s Glen Avenue well field?
Although the railroad site is geographically close to the Town’s well field on Glen Avenue, the railroad and the well field are in different zones. Furthermore, the aquifer from which we draw our water runs from the well field area towards the railroad, so even if a spill were to reach the ground, it would not flow to the area where the Town draws water.
Protecting our water sources for the municipality is a major concern for all of us. The location of the rail yard is outside of zone 1 and 2 of the wellhead protection area, but the owner has complied with regulations to protect the groundwater from any potential mishap by placing a barrier under the tracks at the rail yard. The owner has also planned and has begun construction of a detention pond as an even greater means of protection, although he is not required to do so.
What types of inspections have various agencies made of the G&U site?
- The FRA has been on site continuously over the past six months to inspect safety in accordance with their regulations now that the railroad site is being expanded and products are being transloaded.
- The State DEP made a site visit on May 11, 2011. They reviewed the wood pellet operation, the transloading facilities for hazardous and non-hazardous liquids, and the proximity of the Town’s well field to the operation. No violations were found. Click HERE for a copy of that report.
- The Department of Fire Services, State Hazmat Team has been on site to inspect the facility and provide the Fire Department with technical advice.
- The State Fire Marshal, Code Compliance Officers from the Department of Fire Services and the Department of Fire Services Legal Counsel has met with the Fire Department to review the trans-loading operation of the Grafton and Upton Railroad and provide advice regarding legal and code compliance matters.
- Depending on the situation or complaint the Town of Upton’s Fire Department, Police Department and Code Enforcement have been on site repeatedly over the last three years. Click HERE (updated as of 12/5) for a listing of all inspections made by the various Town departments.
I’m concerned that I haven’t been notified of blasting taking place at the railroad site given how close it is to people’s homes. What is happening and what should people do if they think their home has been affected?
The railroad is blasting in order to complete the build out of the facility. Blasting is complete near the entrance area, and now is focused in an area toward the back of the site. The most recent blasting is being done in order to provide a system of catch basins and a detention basin at the site. This installation is a precautionary measure that will direct all surface water or run off at the site into a collection area. In the event of a spill of a hazardous substance any products that are spilled will be contained on site where they can be removed.
State fire prevention regulations require that property owners that are within 250 feet of the blasting site must be notified and offered an inspectional survey of their property. This has only affected two properties so far that are adjacent to the railroad property. All other properties have been located outside of 250’. Despite that the Fire Department has required that the blasting company take additional precautionary measures and fire department personnel have been on site each day that blasting has occurred to insure compliance with the regulations and to witness each blast. In some cases police department staff has been assigned to the area as well. If a resident believes their home has been damaged during this process they may obtain a “Blasting Damage Complaint” Form from the Fire Department. That will be forwarded to the State Fire Marshal’s Office for investigation.
What types of local regulations is the railroad preempted from?
The two most important areas where the railroad is preempted from our regulations is site plan review by the Planning Board, and the requirement that the railroad obtain a building permit for construction of their various facilities on site.
Site Plan Review by the Planning Board is done to ensure that the site to be built is done in compliance with the Town’s Zoning By-Laws. These by-laws regulate various uses of land, and set requirements for such things as setbacks from lot lines, noise, parking, etc.
Although the railroad does not have to file with our Code Enforcement department for a building permit, they must still comply with the State Building Code. Thus they may construct buildings without a permit, but they must notify the Town that they are doing permit eligible work, and the Town has a right to inspect it and enforce the State Building Code. All of the facilities at the yard, including the wood pellet facility, have been inspected by the Town and found to be in compliance.
When the railroad is fully operational, how many trains a day will be coming through Upton?
At the present time the railroad brings trains to Upton three days a week. When the facility is complete the G&U estimates that there will be trains to Upton five days per week.
What type of noise can I expect will be generated from the site, and will it be confined to regular business hours or other times of day?
We anticipate that there will be certain noise created when the railroad is fully operational. Such noise will come from the typical industrial uses that are germane to and are associated with a rail yard. Noise is preempted from our local regulations in the Zoning By-Laws. Residents who wish to file a noise complaint may do so by emailing the G&U at info@graftonuptonrr.com.
Will the railroad contribute to increased truck traffic on our roads?
It is expected that truck traffic will increase on our roads as a result of the railroad’s operation.
Given the rail cart accident this summer where a car was hit on Hartford Avenue South, what is being done to ensure crossings are safe for drivers?
The Railroad has taken steps to ensure that an unmanned rail cart will not be able to cross a street like it did this summer. Those measures include making sure all vehicles or trains on the tracks are chocked so they can’t move, and that devices have been installed at crossings to ensure that even if a cart reached a crossing it would derail onto the railroad’s property before reaching them. An investigation of this accident was made by the FRA and no violations of their regulations were found in this case.
The Town has also submitted a State grant application with the Towns of Hopedale and Milford for $3 million to be put towards the upgrades of crossings in all three towns. Such improvements include the installation of signals or gates at certain crossings.
Do the Town and the railroad have an emergency response plan in case of an accident at the site?
During an emergency, the safety and well being of the residents of Upton is our first priority. The Town of Upton has an Emergency Management Plan which outlines how the Town would respond to emergency situations including potential emergencies involving the railroad. In addition to this plan the Town has specific evacuation criteria for the area of Town that is within ½ mile or less surrounding the rail yard on Maple Avenue. The development at the railroad is an ongoing and evolving process. Similarly, the Town’s emergency plans that pertain to the railroad will be updated as needed so that we are prepared for the future.
The Town of Upton has also joined the Towns of Grafton and Northbridge to form a Regional Emergency Response Committee (REPC). An important part of the initiative to form this committee was due to our shared interests in expanding our response plans to include our neighboring communities in the event of a railroad related emergency. This is an ongoing process that we anticipate will take one to two years to fully complete.
G&U and its contractor also have emergency plans, as required by federal regulation and standard railroad practices, to deal with emergency situations.
What resources do the Town and the region have at its disposal to manage a chemical accident at the site?
Members of the Fire Department are required to be trained by the State to the Hazardous Materials Operational level. Firefighters are trained to contain hazardous materials spills and evacuate residents as needed. We are fortunate in the Commonwealth of Massachusetts to have one of the best hazardous materials response teams in the country. The Massachusetts Department of Fire Services operates the hazardous materials teams which are headquartered out of their facility in Stow. The team is staffed by members of the Massachusetts fire service. This benefits the Town of Upton because it means that members of the team are available to respond to Town from other nearby communities. In the event of a hazardous materials incident in Upton, the State Haz Mat team would be called to respond and assist the Upton Fire Department. The G&U and its contractor have considerable expertise in preventing and handling spills, and they, in effect, would be the first responders dealing with any such situation.
In the event of an emergency incident at the railroad the Town also has several other local State and Federal agencies that may be called upon to respond or assist such as the State Department of Environmental Protection (DEP), The Federal Railroad Administration (FRA), The National Emergency Response Center, Chemtrec, and foam resources from Fire District 7, District 14, and District 8.
If a resident notices a chemical odor at the site, to whom should they report it?
There are some odors that are typical to the rail yard on Maple Avenue. The smell of diesel exhaust for example would be typical at the railroad facility. Residents who live in areas adjacent to the rail yard are encouraged to make themselves familiar with the odors that are typical there. During the transfer of chemicals or other products it is unusual for strong odors to be released that would be detected by residents. The Fire Department recommends that residents who live in the area around the rail yard be vigilant. Residents should contact the Town’s Emergency Dispatch Center by calling 911 when they notice strong chemical odors that are unusual or they believe a chemical spill has occurred which has the potential to create an emergency situation.
Some of you have contacted the local emergency depts., regarding an odor that may be coming from the rail yard. Upon investigation by the Fire Department and Board of Health, the odor was found to be coming from the railroad ties, preserved with creosote. Creosote is a common preservative for wood products, used throughout the United States.
Newly delivered ties will have a stronger odor for a short duration than the existing ties found already in place.
What are the economic benefits to having the railroad operation in Upton?
The railroad estimates that when its site is fully operational, they will have created 47 jobs in the Town of Upton. The development of the site will also result in increased property tax revenue to the Town. In addition, there will be substantial secondary impacts and benefits on local businesses that rely on or support rail operations. Additional economic activity, and correspondingly new jobs, will be created for businesses that supply materials used by the railroad or the businesses that use rail transportation.
Is the railroad paying property taxes on their site?
Yes, the railroad is paying property taxes on its site and its building the same as any other property owner. For 2011 the Assessor’s have determined that the value of the land and buildings is $2,705,000 which translates to a tax bill of approximately $ 30,564. The actual amount billed will be determined as soon as the tax rate is set.
More Questions?
If you have a question that has not been answered above, please email the Town Manager, Blythe Robinson at brobinson@upton.ma.us
The responses to the FAQs set forth herein are not legal advice and are for informational purposes only. The information concerning the railroad private property owner’s interests and positions are based upon information provided to the Town by the railroad as of the date of issuance of the FAQ. The responses to the FAQs are not intended to be the Town’s exclusive or exhaustive position on the matters indicated. Moreover, the responses shall not be deemed to be a limitation on or reflective of the Town’s legal position or possible remedies or enforcement options with respect to railroad operations, or to otherwise limit or define the remedies available to private parties.
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