To the Editor,
In recent days, Metro Enviro (ME) has once again been featured prominently in local headlines. This is because, after the Village of Croton won the right to deny a special permit in the Court of Appeals, ME and the underlying property owner, Greentree Realty LLC, sued the Village for $50 million in damages.
In this new case, they are contending that they don’t need a permit at all and that the use at the site is a long running use that is grandfathered. Greentree contends that the improvements there would constitute a ‘taking’ if Croton closes the facility and eliminates that use at the site.
However, certain other far-reaching developments related to the ME site have the strong potential of making the current law suit by ME and Greentree irrelevant. These potential developments were not known to the Village until recently and the facts are just now starting to become known. Largely due to research by Trustee Kane, the Village Board and its attorneys have concluded that we may be facing a serious problem ahead.
I believe that is the case. If this problem becomes a reality, the ME site will go from being a waste transfer site that is heavily regulated by state, county and local restrictions to one that is virtually unregulated. Because of a loophole in federal law, a railroad may operate a waste transfer site 24 hours a day, 7 days a week, processing unspecified materials in the open air.
The Surface Transportation Board (STB), created as a result of the Interstate Commerce Commission Termination Act in 1995, is empowered to grant exemptions to allow this use to occur for railroad entities. Here is a summary of the facts on why this loophole may result in an unregulated waste transfer station at the ME site:
Allied, current owner of ME operation, according to its SEC filing is in the process of selling these assets to a new owner.
The potential new owner, Northeast Interchange Railway, LLC (NIR), is controlled by Gordon Reger. This company operates rail transfer stations in Connecticut and Massachusetts which handle C & D. It also provides rail disposal services for New York City and operates a municipal solid waste landfill site in Ohio.
The same Gordon Reger also acquired a 57% position in New York Regional Rail Corp. (NYRR) in February 2005 according to SEC filings.
Under the federal interstate commerce regulations, NYRR qualifies as a railroad.
Under the federal regulations, the ME site can be granted railroad status and become exempt from the state, county and local rules that were placed on the ME operations.
Taking advantage of this loophole, these unregulated sites are already operating in many areas of the northeast.
This week, four actions occurred relative to this potential problem.
On Monday, July 31, NIR applied to the Surface Transportation Board (STB) for an exemption to lease and operate a rail road line at the ME site and thereby become a common carrier by rail. These exemptions may be granted in 7 days.
On Wednesday, August 3, the STB rejected the NIR application without prejudice requiring further information from NIR.
On Thursday, August 4, NIR reapplied for the exemption supplying additional information.
On Thursday, August 4, the Village’s Special Counsel on this matter, Michael Gerrard, filed a brief with the STB on Croton’s behalf.
Can this serious potential problem be sidetracked in Croton? I certainly hope so but this is the situation that the village needs to be addressing now. If this occurs, the outcome of the ME/Greentree lawsuit, receiving attention now, will be moot. In the long-run, the federal loophole must be closed but in the short-term what can we do? Here are some possibilities:
Residents need to make the Village Board aware of their concern about this very real threat so that it is openly discussed.
Croton needs to continue asserting its position in the current lawsuit until the reality of the above described potential problem is decided.
Croton and its residents must agitate for closing the federal loophole and increasing accountability at all levels.
Croton must lay the groundwork for exercising eminent domain for the ME property.
Several documents with supplementary information follow this letter. I hope that you will find this information of sufficient concern to engage you in finding the best options for the Village. Please feel free to contact me.
Several related news articles, press releases and letters on this subject with their sources. (pdf)
A legal case (pdf) that addressed this issue in 2003 in the US Court of Appeal, third circuit about the HiTech Transit LLC case mentioned in the STB’s rejection of the initial application by NIR on August 3.
Information about Gordon Reger’s New York Regional Rail (pdf) (NYRR).
Ann also says in her letter, “I realize this is a lot of information and documentation but my interest is in giving residents the opportunity to fully understand all aspects of this situation”.