On October 23, 2020, the STB rejected the first-ever petition for exemption for a land-use exemption or siting permit for a new solid waste rail transfer facility in Brookhaven, New York (Petition). Slover & Loftus LLP represented the public citizens’ group opposing the Petition.
Congress enacted the Clean Railroads Act of 2008 (CRA), which provides the STB with limited authority over the siting of such transfer facilities. The CRA was enacted to address issues that previously arose when railroads would utilize the general preemptive effect of STB regulation to override local zoning and other state and local regulation for such facilities. The CRA allows the STB to override local zoning for facility siting purposes, but not other local or state requirements for operating waste transfer facilities, and only if various requirements are first satisfied concerning unreasonable local burdens placed on facility siting, and the risks, potential benefits, and adverse impacts of the facility.
Brookhaven Rail LLC (BHR) sought the first STB authorization under the CRA for such a facility on Long Island, New York, but elected to proceed by a petition for exemption. The STB agreed with the Citizens Campaign for the Environment (CCE), a local environmental grassroots organization represented by Slover & Loftus LLP, that a petition for exemption was inappropriate for this purpose and that BHR needed to proceed with a full STB application, if at all. The STB also agreed with CCE on other aspects of how the CRA should be construed, particularly regarding the need for the railroad to exercise sufficient control over the facility operations.
The STB’s decision, Brookhaven Rail LLC – Construction & Operation Exemption – In Suffolk County, NY, FD 36398; Brookhaven Rail LLC – Pet. for Exemption from Requirements of 49 U.S.C. § 10909, FD 36399 (STB served Oct. 23, 2020), is available here.