A few weeks ago I wrote a letter to the editor to alert residents about a potentially serious situation developing at the Metro Enviro site. Very briefly, the situation was that a company, NIR, petitioned the federal Surface Transportation Board (STB) to be declared a railroad. Under the STB regulations this would allow NIR to operate at the site without any state or local oversight.
If NIR is declared a railroad, they will then apply to the STB for an exemption which will allow them to handle, on a 24 hour, 7 days/week basis, all kinds of waste, likely including municipal waste and hazardous wastes beyond the C&D waste that is currently handled at the site. In their initial application NIR indicated that this was their intention as well as building additional rail spurs at the site to increase capacity. This has happened at several other locations in the Northeast already.
Since my earlier letter, there have been additional developments. Both the Village and NIR have filed a number of responses to each others petitions. Further, the NYS Attorney General’s office filed a petition for the NYSDEC asking for further information on NIR’s plans. Letters from several officials were also sent to the STB asking them to deny NIR’s petition. NIR has replied to both the letters and the NYSDEC petition. The STB works quite rapidly and they do not give public notice or solicit input. The only public information is the postings of events on the website www.stb.dot.gov (search on Croton).
As of this writing, we do not know the STB’s decision or when it will happen. However, even as we wait for a decision, we must try to understand the options we have to prevent NIR or a similar facility from coming here. The ones that I can identify are both difficult and expensive so we need to prepare ourselves for this eventuality. Here are possible courses of action that I see ahead; they are all both difficult and expensive. I hope you will take the time to think about them, and communicate your thoughts to the people who will decide - the Board of Trustees.
1. The STB might grant NIR’s application. In that case, the Village will need to employ all avenues of appeal available. The Village will also have to prepare for another application by NIR to the STB asking for an exemption to handle other wastes.
2. The STB might stay NIR’s application or reject it without prejudice telling NIR they can resubmit with more information. If this occurs, the Village will have to respond to any resubmittals by NIR but it would buy us some time to consider another option - using eminent domain to take ownership of the site. 3. The STB might deny NIR’s application. While this might seem like a victory, it appears likely that it would only be a matter of time for another entity that already is qualified as a railroad to purchase the business as NIR intended to do. Such an entity could then operate the site immediately. They would likely apply quickly to the STB for the exemption to handle multiple types of waste. The Village would have to make the same case as it is trying to make against NIR now. This alternative might also give the Village some time to exercise eminent domain. 4. Separate from the STB-related issues above, a decision in the current ongoing lawsuit against the Village by Metro Enviro and Greentree LLC may be forthcoming. A decision favorable to the plaintiffs will likely mean the Village will appeal it. A decision favorable to the Village will likely mean Metro Enviro and Greentree will appeal it. Either way, this legal battle will probably continue at least until the STB makes a decision on NIR.
I have mentioned eminent domain a number of times as an avenue the Village might pursue. Eminent domain, although simple in concept, is a highly complex process to successfully execute. There are many rules that govern the process and, of course, if successful, the fair market value of the taking has to be paid. Based on discussions and research I have been doing, it appears that there is some question as to whether the Village could supercede an entity such as a railroad in an eminent domain proceeding. This raises the question as to whether such an action can be taken after a decision to grant railroad status is given by the STB so time may be very important in this. The Village should consider hiring a “specialist” attorney, familiar with the intricacies of eminent domain, before starting down this path. An appraisal of the property would also need to be done.
Obviously, I have no answers here. I have also greatly oversimplified the complexity of the problem so you could get through this already lengthy letter. However, I continue to believe this is the most important and potentially detrimental issue to come before Croton in my 20 years of involvement. Whatever path we take as a Village is going to be costly with attorney’s fees, appraisal fees, and possibly a purchase price. It is very important for all residents that you keep informed on this matter and that you offer you opinions and insights to your Village officials.
— Ann Gallelli