Wednesday, November 1, 2017

Adk Tanker Storage: Actions Governor Cuomo Could Take

stored tanker cars“They own the track so they believe they have the right to store their trains on their track in the Adirondacks. It is unsightly. It’s out of character with the Adirondacks. We don’t own the tracks. There’s a question as to what legal right we have to oppose it. But we oppose it one hundred percent and we are going to do everything we can do to stop the owner from storing the trains on those tracks.” – Governor Andrew Cuomo

So said Governor Andrew Cuomo to media gathered in Glens Falls last week concerning Iowa Pacific/Saratoga-North Creek Railroad (SNCRR) storage of old, supposedly cleaned tanker cars on rails in Minerva, Essex County, close to the designated “Scenic” Boreas River. The underlying land below and on either side of the tracks where tanker cars are being stored is “forever wild” Forest Preserve (Vanderwhacker Mountain Wild Forest).

Two summer ago, in the summer of 2015 the State and local governments raised the same objections about proposed storage of tanker cars with an unknown amount of petroleum product in them. SNCRR eventually backed off its plan. So, the State has had more than two years to perfect its objections in preparation for the possibility that SNCRR, in search of needed cash, would defy State and local objection and actually haul these old tanker cars into Essex County. Now, they have, with the added assurance that these cars are now inspected and found clean of old petroleum products. Governor Cuomo has said he is still unsure of his legal rights to stop this movement of tanker cars into the heart of the Adirondack Park and to remove those that are already stored on the tracks.

In order to “do everything we can” to stop this activity, Governor Cuomo has specific laws, regulations, procedural tools to shed light on this matter, and lots of sharp minds at his disposal. Adirondack Wild: Friends of the Forest Preserve and many others issued these recommendations to him in 2015, which were taken seriously at the time, so I thought I should reiterate and again recommend them to the Governor. This is not an exhaustive list and I am not an attorney. There may be other, equally or more potent legal tools at the Governor’s disposal not listed here.

  1. The Governor should immediately instruct his agencies to hold public hearings to gather information, facts and opinion from Iowa Pacific-SNCRR, a variety of affected local governments, a variety of State agencies, a variety of environmental points of view, the federal Surface Transportation Agency, and from regular citizens. The SNCRR action is a major new commercial and industrial activity sponsored by a private company on lands which are public lands (Forest Preserve) and, further north along these same tracks, more Forest Preserve bordered by private lands classified Resource Management, Rural Use and Industrial Use at the RR terminus at Tahawus.
  2. Both NYS Adirondack Park Agency and NYS Dept. of Environmental Conservation appear to have ample authority to convene such public hearings about a new, large, highly controversial land use and development project where public input could definitely have a bearing and shed new light on the matter. The action appears to be a Class A regional project for the APA because on the private land portion of the tracks the action may constitute a new junkyard according to N.Y. Exec. L. §810(f)(7) and §810(d)(17). Consequently, Iowa Pacific may need to apply for and obtain an APA permit for those portions of the oil car storage project occurring on private land.
  3. Until the permits are issued, the Governor and the agencies have the authority to ask SNCRR to cease and desist from bringing more tanker cars into the Park at this location. The DEC and the Attorney General could, if necessary, bring an enforcement action against the company.
  4. For DEC, the jurisdiction may be two-fold. The proposed storage of disused tank cars may be subject to DEC permit requirements as a solid waste management facility, where regulations define a “solid waste management facility” as including “storage areas or facilities,” “rail-haul facilities,” and “used oil storage” facilities. Accordingly, Iowa Pacific may need to apply for and obtain a DEC permit for its oil car storage activity.
  5. Secondly, for the DEC there is the not-so-small matter of possible illegal occupancy of public Forest Preserve along 13 miles of the track. The Governor should be aware of this history starting in 1942 when the United States seized the tracks and right of way to haul out titanium dioxide from Tahawus during the national emergency of World War II. While the federal ROW-easement was extended far into the 21st century (to the year 2062) and even though Iowa Pacific-SNCRR has obtained federal common carrier designation, the State of New York has a claim that under its laws of abandonment and termination of easements the purposes for which the easement was taken were extinguished, and that the railroad was effectively abandoned years ago. There is a heap of background information suggesting this is the case. If so, the lands revert back to pre-1942 ownerships, a combination of New York State and private owners. Governor Cuomo should fully explore this aspect of the matter during and after the recommended public hearings.

Photo of stored tanker cars, courtesy Protect the Adirondacks.

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David Gibson

Dave Gibson, who writes about issues of wilderness, wild lands, public policy, and more, has been involved in Adirondack conservation for nearly 25 years, much of that time as Executive Director of the Association for the Protection of the Adirondacks and then as first Executive Director of Protect the Adirondacks.

During Dave's tenure at the Association, the organization completed the Center for the Forest Preserve including the Adirondack Research Library at Paul Schaefer’s home. The library has the finest Adirondack collection outside the Blue Line, specializing in Adirondack conservation and recreation history.

Currently, Dave is a partner in the nonprofit organization launched in 2010, Adirondack Wild: Friends of the Forest Preserve.




45 Responses

  1. Jim says:

    This is why so many business leave NYS. Overreach and over regulation drives businesses and opportunities for young people out of the state.

    So someone is storing some rail cars (that are cleaned) on tracks, big deal.

    • Boreas says:

      “So someone is storing some rail cars (that are cleaned) on tracks, big deal.”

      Seriously? If they were being stored in a rail yard near a city or industrialized area, it wouldn’t be a big deal. But it is a big deal in the center of the Forest Preserve – at least to anyone who cares about the Park. I find it odd that people don’t see the difference. The ADK Park is highly regulated as you mention – but for a purpose. It isn’t to make the Park a dump.

      IP knew the regulations of the area when they purchased the line. They have been unsuccessful with their intended uses – hauling tailings and a scenic RR. There was no large public outcry against those uses. However, since we let them know our feelings at their first attempt to store cars here, there should be no surprise to anyone at our reticence to allow them to store a potential 2000 cars here. They have many more sidings around the country that they can use. Do I blame them for trying? No. But many people do not feel it is in the best interest of the Park, including the Governor.

      So yes, it is a big deal to those of us who care.

      • Paul says:

        You can’t claim Jim doesn’t care. If the cars are clean as required they don’t pose a threat. Saying they do is fiction unless proven otherwise. Are they an eyesore, if you are looking at them yes. Go do the soil testing outside the ROW which is narrow nobody can stop that. Then show us the data.

        • Boreas says:

          Paul,

          What does this sound like to you then?

          “So someone is storing some rail cars (that are cleaned) on tracks, big deal.”

          If that is his attitude, it is up to him to prove he cares, not me to prove he doesn’t. As far as I am concerned, there is no clean rail car, just like there is no clean automobile. Whether they are ‘clean’ or not isn’t the only issue here. Do you care?

          • Paul says:

            I already said several times that I think this is a bad idea. It sounds like Jim doesn’t think there are any environmental concerns. He could be correct. Like I also said they should do some monitoring and see who is correct – you or him. The state would then have justification for action if this is actually adversely affecting the environment. If it isn’t, than it is just an astetic issue, one that the state should have realized was a possibility when they allowed the RR. I don’t see any recourse at that point.

            The legal arguments so far seem like long shots that will just bog down in court.

            • Boreas says:

              Paul,
              Correct me if I am wrong, but ultimately, the owner of the land is responsible for all toxins on it – old or new – whether present when purchased or not. Perhaps RRs are exempt, I don’t know. These newly stored cars may or may not add to any toxins already present, but if they are, I would think it would behoove the land owner to minimize their risk by say, not parking them next to a river. I think this would be a worthy reason to bog down the court.

              • Paul says:

                I agree, that is why I would start by seeing if there are any “toxins” actually being released here. As I understand it the DOT had to inspect these cars to be sure that there would be no environmental issues. Monitoring on site would be an added measure of protection. As far as who is responsible it depends on how any easement agreement is written. The owner of the easement could be responsible in some cases.

        • Dave says:

          Where did Boreas say anything about soil? Are you suggesting that soil contamination is the benchmark by which we judge what is going on here?

          You can store all means of junk up here in the park without getting soil contamination data. That isn’t the issue. It is the storing of the junk that is the issue.

          And yes, you can certainly question whether someone cares about a place if they are readily willing to store junk there.

          • George says:

            These railcars are not “junk”. They can be put back into service at any time they are needed. Bending facts is not conducive to getting support from those who may be on the fence.

            • Jim says:

              George, yes you are so correct.

              I read some of these comments and realize they come from some very emotional people. They tend to loose their minds in microseconds overreacting to trivial issues.

              I have found that some of these people will drive their cars all over to protest an oil pipeline when their car was powered because of the pipeline.

              Another issue I see is the hiking of the high peaks, people say “something must be done”, never mind the fact that the peaks had no vegetation after the last ice age. If you think that man can “ruin” it, well no words can fix that thought pattern. My solution? You have done them all? Don’t hike them again, leave it for new people to have their chance, don’t be selfish.

              Have a nice day.
              Jim

    • Bob Meyer says:

      Jim, you do NOT get what the Adirondack Park is all about!!!!

  2. Mike B says:

    I believe the DEC and NYS Health Dept should run baseline soil sampling of the Forest Preserve land for lead (paint) and hydrocarbon (oil) contamination along the tracks. The sampling should be repeated every 6 months. Any elevated readings would indicate lead leaching from the paint on the cars and / or oil leaking. Should this occur the state can take legal action against the polluters.

  3. Liz wallin says:

    Let’s do everything we can to stop this.

  4. Paul says:

    John, Can’t comment on it but under the “latest Adirondack news” it says – “EPA blocks “scientists” from advisory boards” – not true. They apparently have blocked scientists who get EPA grants from serving on those advisory boards. Scientists who don’t get these grants are not blocked. This is apparently done in an effort to avoid conflicts of interest since they get $ from the EPA via this grants. A good idea? Maybe not but the headline is totally misleading.

    • John Warren John Warren says:

      “They apparently have blocked scientists”

      In other words, they are blocking scientists.

    • Balian the Cat says:

      “Scientists” who do not get EPA grants are often employees of the industries EPA is charged with regulating. That’s a problem.

      • Paul says:

        There are lots of academic (non-industry) scientists that do not get EPA grant money. Especially since the federal government is so stingy when it come to science funding!

        There are also lots of industry scientists that are not corrupted like you say. This idea of making scientists out to be villains, both in dusty and academia, is why so few people have trust in science these days.

  5. John says:

    To repeat: Warren County should tear up IP’s contract for non-payment of bills and when challenged ask the court to order immediate removal of the railcars. Then petition the state DEC to enforce the law, thus providing the leverage for hearings. Publicize IP’s actions in every market where they operate.
    IP would like this slogan: “The Adirondacks: The Wild Junkyard.” How charming.

    • Paul says:

      John, do you know that these “non-payments” as you call them are an actual breach of the contract? And even if they were you can’t just tear up contracts when you have a beef. Luckily we have a thing called contract law.

  6. Michael Simko says:

    The State and DEC should enjoin or sue the rail car owners. It is my understanding from the articles I’ve read that Iowa Pacific is of the owner of the tankers. Who is? Go after whoever owns the cars publicly. Maybe it is Warren Buffett / Berkshire Hathaway and the railroad they own. Maybe the owners are annoying their public company who do not want to soil their reputation. Find out who owns the cars and give them a full on public frontal assault.

  7. Michael Simko says:

    Sorry for the bad grammar / typos above! I am typing on my phone and didn’t realize how poorly written the above post it. The type font on the reply screen on the phone is tiny and I can hardly see it.
    – spelling aside. I hope you get the gist of the post. Bring the owners of the cars into this battle to get rid of them!!

    • James Falcsik says:

      There are many railroads that do not own one piece of rolling stock; they simply lease locomotives and other necessary equipment and are paid to provide the car moving service. In this case IP owns some of the track on the SNCR and leases other mileage. In the 1970’s small shortline railroads found that car leasing was great for the bottom line, especially when there was a boxcar shortage. Tiny little Lake Erie, Franklin & Clarion Railroad was just 15 miles in length, but owned hundreds of boxcars and hopper cars that were leased nationwide and never operated on their own line. I don’t think IP owns any of the rolling stock it is storing.

      UTLX..is the reporting marks indicating ownership of some of the cars in the photos. UTLX is Union Tank Car Co. They don’t want their cars in storage because stored cars generally do not produce revenue. However, these cars are probably under lease to a shipper..perhaps an oil broker or other product manufacturer. In that case the shipper is probably on the hook for the storage cost.

      The storage or rail cars is common and usually cyclical. Surplus grain hoppers are put in storage after harvest. Auto Racks are put in storage when there is a downturn in the auto industry. Coal hopper are being put in storage now due to power plant conversions.

      If UTLX had cars with no lease agreements, because they were out of date or not repairable, they would not pay to store them; the cars would be scrapped.

      • Michael Simko says:

        I get all of that. How owns cars. How they are leases. Why.

        The issue here is to get these cars our of our beloved park. One way of getting things done is with public opinion pressure. No large corporation wants bad press. The little IP railroad operation obviously does not care. But large public corporations do care and they do not want their names soiled in the press.

        I’m not suggesting public pressure on a large corporation is the answer. I’m just suggesting that in addition to legal avenues, public pressure is another vehicle to get corporations to change direction.

        The Adirondacks, our PARK, comprised of green trees, beautiful streams and rivers, hiking trails, and homey hamlets is not the place to park trains. We are a Park in the sense of open space. We are lot a park in the sense of pave paradise and put up a parking LOT!

        Cheers!

        • Paul says:

          The park has these things, but it also has some pretty unsigthly things like other place where people live and work. In the middle of the park I can think of two very large open pit mines. One right next to Saranac Lake (where most of the stuff we need to build and maintain our roads in the park comes from) – Greymont Quarry (check it out on Google maps). The other one in Jay, you have seen lots here about the expansion of that one. Are we suggesting that we sue the pants off these other companies that are doing far more than storing rail cars on a RR? I would only suggest legal action if there is a good case. Right now I just don’t see one.

  8. Dick Carlson says:

    Apparently the cars are owned by Warren Buffet’s company. The State should just purchase the Rail Line – it’s not far form the $28m Boondoggle Gateway. Seeing their non-payment history, who is even sure Iowa Pacific paid for it when they purchased it from NL Industries?

    • Jim says:

      If true that Warren owns the cars, interesting. He was a huge supporter of
      Obama, Keystone pipeline? Who’s railroad moved all the oil?

      He has his hands in the democratic party along with Schumer, Deblasio and Cuomo.

      Campaign donations and “speeches” are simply a cost of doing business.

      Remember when Microsoft was sued in 2000 by the justice department?

      Microsoft now pays $350M a year to lobbyists to prevent such nonsense.

      Follow the money.

      The comments I see here are by CAVE people.

      Citizens Against Virtually Everything

  9. Boreas says:

    Perhaps someone can help me with this – I believe the issue with the old DOT-111 tankers is that they are no longer able to transport volatile, flammable, or otherwise toxic materials due to their design. There is a significant cost to repurpose them for many ‘safe’ liquids or to upgrade their design to make them suitable for flammables again. There is also a significant fee to clean them before scrapping.

    It is possible, since they have been cleaned, that they are simply waiting to be scrapped. But Mr. Ellis has given no statement WRT their possible length of stay or their final destination – not that he is legally obliged to. That is the troubling part. But if he wants to make nice and continue temporary storage of small numbers of cars, the state may be receptive to it. But if he continues in this fashion, I see cloudy skies for all parties – including NYS taxpayers.

    • Billie Jo Lear says:

      Actually, Mr. Ellis did give a statement about these cars not being clean. He was quoted as stating they have oil in them and unknown chemicals that are usually a mix of chemicals caused by the cleaning process itself. I find it interesting that he said that as well that they can no longer be used and may be stored here indefinitely to his new statement in last weeks main stream media of ‘they are clean because the state said so’. There is something wrong with that and we would be daft to over look the contradiction of his statements. Further, we would derelict to not mention he also tried to move toxic materials from Knolls through here in the past. This man has no regard for ‘protected lands’.

      As for the first comment that claims it is about money: It is only about money when someone pays their bills. IP does not. It is not just with us. IP has unpaid bills and this exact situation all over the US. 🙂 So yea, if it is about money, it is only about the money he owes and never pays.

    • James Falcsik says:

      Boreas; most of the DOT-111 cars are still in service, and will be until 2023. Some are being upgraded with thicker end caps and appliances, and this will cost the railroad industry about $7 billion until there are enough newer cars in service. The DOT-117 cars built to higher standards account for only 6% of the cars in use now.

      In general, they will be in storage until there is a demand for use, or the leases run out. IP is probably charging by the day or month for storage; a call could come any day to move them if there is shipper looking for cars to load. The idea these cars are junk and out of service waiting to be scrapped is not likely.

      There are 12 unit train sets dedicated to oil service to both the Gulf and East coasts, running every day. The Keystone Pipeline would have probably lowered this unit train demand, but most refineries and railroads have learned to provide flexible service that is cost effective, since for so long the KP was held up.

  10. tom prevost says:

    I think we are missing the real issue here. The recent storage of unusable tank cars is not unique to this line, it is being done all over the state. Example the line running along rte. 12 and spurs in the southern tier. The state got blind sided with this. As it was new and unanticipated, no rules regulations have been put in place. Why NY? where bad experiences have occurred in other states, legislation has been put in place to make it unattractive to store in those states. History has shown, that because of potential of toxic residues, recovery companies will not purchase for recovery of steel. After a length of time the brokerage companies will no longer pay rent and literally abandon them. the owners of the spur lines, having made their fortunes, declare bankruptacy leaving the cleanup to the local, and state governments.

    This issue needs to be addressed on a state wide concern, not just a local issue. Otherwise, it is going create local hardship down the road.

  11. Ronald Bush says:

    You red diper dopper babies think you control everything thing in the Adirondacks .you make life very very hard for so many people you should be ashamed of yourself. That’s why it looks like a vast waste land. Nothing like stopping progress. Hope your happy!!!!!!!!

    • Justin Farrell says:

      So I’m guessing that must be one of your gang tags graffitied on the side of several of those tankers which are now displaying in the heart of the Adirondacks. Some things just don’t belong bro, please pardon those of us that may speak out against this BS.

    • Bob Meyer says:

      Mr. Bush, If you think the Adirondacks look like a vast waste land, I and I’m sure most of us on this site advise you to move to a nice coal mining town in West Virginia.
      “Red diper dopper babies” ?!?! Very colorful.

    • Boreas says:

      Mr. Bush,

      I invite you to Google some images of the landscape in the Adirondacks in the late 19th century if you want to see the results of ‘progress’. You will get a little better idea of ‘wasteland’. That is why the Forest Preserve was created. Residents have had a century to adapt to the FP or move to areas of the state/country that embraces your type of progress. The FP notion isn’t likely to go away soon, nor are its defenders

    • Charlie S says:

      Progress in some eyes is regress in other’s eyes!

  12. Justin Farrell says:

    “The cars have been cleaned”

    Ha….right!
    As if the inner-city gang graffiti displayed on the outside of many of these cars while they are stored in the heart of the Adirondacks is acceptable.

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