[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