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1A Croton Point Avenue


        The Village of Croton-on-Hudson has filed two petitions with the Surface Transportation Board (STB) challenging a proposal of the Buffalo Southern Railroad (BSOR) to operate a solid waste facility within the Village without State or Village permits.
        The first petition demonstrates that BSOR has purported to hold itself out as a common carrier that can bring material into and out of the Village, but it lacks the STB authorization it needs for such operations.  The Village also named as defendants in this proceeding Greentree Realty, LLC, which owns the site; and RS Acquisition Co., LLC (RSA) and Northeast Interchange Railway, LLC (NIR), two affiliates of Regus Industries LLC that are also involved. The Village’s complaint charges that “Greentree, NIR and RSA all worked together to restructure the lease arrangement at the Property, recruit and induce BSOR to come onto the Property, and work out an arrangement for BSOR to claim common carrier status, in a way that purports to circumvent state and local regulation, for the financial benefit of Greentree, NIR and RSA.”
        This petition asks the STB to order BSOR to cease and desist from operating over the track in violation of the law, and to assess monetary fines against BSOR, Greentree, RSA and NIR.
        The second petition filed by the Village asks the STB to reject a “Notice of Exemption” that BSOR filed with the STB.  The BSOR notice is an attempt to circumvent the STB’s usual permitting process.  The Village’s petition says that the BSOR notice should be rejected because it contains false information concerning the size of BSOR’s operation.  If it is not rejected outright, the Village asks that the STB consolidate consideration of BSOR’s notice with its consideration of the Village’s complaint against BSOR, Greentree, NIR and RSA.
        Both petitions were filed on Friday, June 30, 2006 by Michael B. Gerrard of Arnold & Porter LLP, the Village’s special environmental counsel. They are both available on the Village’s web site.
        On Monday, July 3, the STB granted a “housekeeping stay” that in effect grants the Village’s request that BSOR’s Notice of Exemption be put on hold until the STB has looked more closely at all the various issues that have been raised.
        The STB is a federal agency, and the successor to the Interstate Commerce Commission.  It plays a key role in regulating railroad operations.
        The site in question was operated from 2000 to 2005 by Metro Enviro Transfer as a construction and demolition debris transfer station, until the courts upheld the Village’s order that it be closed because of repeated intentional violations of environmental regulations. Village officials had not heard of BSOR until it filed a lawsuit against the Village in federal court on May 16, 2006, claiming that it was entitled to operate in the Village without any state or local approvals.  A federal court ruling on June 12, 2006 enjoined the Village from proceeding with eminent domain proceedings, and suggested that the legality of BSOR’s operation is a question for the STB.  The Village is currently considering whether to appeal some or all of this ruling to the U.S. Court of Appeals for the Second Circuit.
        On June 21, 2006, the Village Manager and special counsel met with representatives of BSOR and Greentree to listen to their proposals for the future of the site.  After being briefed on the meeting, the Village Board decided to reject the proposals from BSOR and Greentree.