[Federal Register Volume 79, Number 19 (Wednesday, January 29, 2014)]
[Notices]
[Page 4811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-01732]
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DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
[Docket No. FD 35752]
Grafton & Upton Railroad Company--Petition for Declaratory Order
Grafton & Upton Railroad Company (G&U) filed a petition for a
declaratory order on July 24, 2013, requesting a finding that 49 U.S.C.
10501(b) preempts certain state and local permitting and preclearance
statutes and regulations that the Town of Grafton, Mass. (Grafton or
the Town) seeks to enforce in connection with G&U's construction and
operation of a liquefied petroleum gas (propane) transload facility on
a five-acre parcel (the Parcel) that G&U owns in North Grafton. G&U
states that it intends to use the facility to transfer propane received
by tank car in North Grafton to storage tanks and then to trucks for
delivery to propane dealers in New England. Pending the completion of
the construction, G&U intends to use portable equipment to transload
the propane. For the reasons discussed below, a declaratory order
proceeding will be instituted and a procedural schedule will be
adopted.
The Parcel is located immediately adjacent to G&U's line and
existing rail yard.\1\ In December 2012, G&U notified the Town that
four propane storage tanks were about to be delivered to its rail yard.
The Town responded by issuing a cease and desist order to halt
construction and by filing a complaint in the Superior Court for
Worcester County, Mass. (Court), arguing that construction of the
transload facility would be illegal and would violate the Town's zoning
bylaws. These actions ultimately resulted in the Court entering two
orders on June 12, 2013, which: (1) Enjoined the delivery of the
storage tanks; (2) directed G&U to comply with the cease and desist
order; (3) stayed the Court proceedings pending a determination by the
Board concerning the applicability of 10501(b); and (4) referred the
preemption issue to the Board, directing G&U to file a petition for
declaratory order.
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\1\ In a separate decision also served today, the Board issued a
declaratory order holding that preclearance regulations and other
requirements of the Town of Grafton, Mass., that would prohibit or
unreasonably interfere with the construction and operation of an
additional rail yard and storage tracks also on the Parcel are
preempted by federal law. See Grafton & Upton Railroad--Pet. for
Declaratory Order, FD 35779 (served Jan. 27, 2014).
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In the petition, G&U requests that the Board find that Grafton is
preempted from enforcing state and local permitting and preclearance
statutes and regulations in connection with both the construction and
operation of the transload facility and the interim use of portable
transload equipment. Grafton, in a reply filed on August 19, 2013,
agrees that the Board should institute a declaratory order proceeding
here. It questions whether G&U can and will finance, complete, and
operate the transload facility on its own in view of certain agreements
G&U had previously entered into with a number of propane companies. The
Town argues that a full investigation should be conducted to prevent
what it characterizes as an abuse of the preemption doctrine.\2\ On
September 9, 2013, G&U filed a motion for leave to supplement its
petition and a supplement containing copies of the various agreements
documenting the termination of its arrangements with these propane
companies. Grafton filed a reply in opposition on September 17, 2013.
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\2\ The American Short Line and Regional Railroad Association
filed a letter in support of the petition on August 12, 2013. On
August 23, 2013, the Massachusetts Department of Fire Services filed
a reply in support of the petition, and the Massachusetts Department
of Environmental Protection filed a reply in opposition, contending
that the petition is moot as a result of a settlement it negotiated
with G&U.
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The Board has discretionary authority under 5 U.S.C. 554(e) and 49
U.S.C. 721 to issue a declaratory order to eliminate a controversy or
remove uncertainty. Here, a controversy exists as to whether G&U would
be the financier, owner, and operator of the proposed transload
facility and whether the Town's enforcement of state and local
permitting and preclearance statutes and regulations in connection with
the facility is preempted under 10501(b). The Board will therefore
institute a declaratory order proceeding and consider the matter under
the modified procedure rules at 49 CFR part 1112.
This action will not significantly affect either the quality of the
human environment or the conservation of energy resources.
It is ordered:
1. A declaratory order proceeding is instituted.
2. G&U is directed to submit additional information and argument by
February 28, 2014. Grafton's reply and comments from other interested
persons are due by March 20, 2014.
3. This decision is effective on its service date.
Decided: January 24, 2014.
By the Board, Rachel D. Campbell, Director, Office of
Proceedings.
Derrick A. Gardner,
Clearance Clerk.
[FR Doc. 2014-01732 Filed 1-28-14; 8:45 am]
BILLING CODE 4915-01-P