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Conejos County Attorney says San Luis and Rio Grande Railroad guilty of rogue activities

by Edie Flanagin
CONEJOS, CO- Last Thursday, February 16, more than 40 citizens testified in a public hearing with the Surface Transportation Board (STB), a Washington D.C. regulatory board whose job is to mediate disputes between locals and railroads. In this case the dispute involves radioactive wastes, a transload site within 300 feet of the San Antonio River, and the refusal of the Conejos County Commissioners to issue special use permits to the San Luis Rio Grande Railroad (SLRG) and their contractors. The STB decision is a classic showdown between local control and Federal regulations that could have far reaching consequences. If the STB decision favors the railroad, contaminated soil and debris will be headed for Huerfano county over La Veta Pass through La Veta and into Walsenburg…

In late 2009 the people of Antonito were surprised to see semitrucks carrying contaminated soil to a site near the San Antonio river in their small town. Some locals investigated and discovered the SLRG railroad had a contract with EnergySolutions, a waste disposal contractor for the Department of Energy (DOE). The citizens of Antonito were concerned about possible spilling of the contaminated soil which could impact the San Antonio river, a tributary of the Rio Grande. The transload site is also very close to several residences. The people were concerned that there was never a public meeting about the activities and the “commodity” being transloaded at the site. The non-profit group, Conejos County Clean Water, Inc. (CCCW, Inc.) formed and began a citizen based board to stop the shipments until hearings could take place. CCCW, Inc. has filed suit against the DOE, EnergySolutions and the SLRG to stop the transfers.
After the citizen’s group got involved, SLRG railroad voluntarily stopped the transloading process and EnergySolutions filed for a special use permit with the Conejos County Commission. The permit was denied in December 2010. SLRG then filed a petition with the STB to mediate.
The STB’s job is to listen to both sides of the dispute which revolves around whether the railroad is breaking the law concerning the Clean Railroad Act (CRA). The mediators made it clear that this is the only thing they can decide: Are SLRG and Energy Solutions following the federal law? If the board rules they are, their activity is not subject to local control. The denied special use permits will make no difference, the transload site will be able to operate.
The heart of the CRA is whether the contaminated debris and soil are sealed and in the original shipment containers throughout the transport. According to the spokesman for EnergySolutions, the containers are closed at Los Alamos National Laboratory and not opened again until they reach the Clive Utah disposal site. The key word is “sealed” container. EnergySolutions is shipping the waste in large “super bags” which are basically plastic sacks. The company admits the bags are not waterproof, and if they are subjected to impact (such as a derailed car), they could leak.
The citizens of Conejos County believe the risk of contamination is too great. The attorney for SLRG, John Heffner, said the CRA was meant to stop ‘rogue’ railroads from using railyards as temporary dumps for storing municipal wastes, a problem that occured in the eastern part of the US. The ‘rogue’ railroads were really shams set up by organized crime; the CRA was not intended to be used against legitimate railroads like the SLRG. The problem comes in the definition of the “original sealed container” as there is no definition of the term in the bill. Stephane Atencio, attorney for Conejos County, agreed that SGRL is a legitimate railroad, but they acted in a ‘rogue’ way by failing to obtain permits from the county or CDOT for the highway access and by failing to hire a regulated contractor to transload the waste.
The county contends that the CRA does apply in this situation because the CRA is set up to protect the public health and environment. The local authorities have pre-emptive power over the railroad and not the other way around as Heffner said.
Forty people testified at the six-hour meeting. Only seven people spoke in support of the railroad, the other 33 people were adamantly and sometimes emotionally opposed. The STB gave a deadline of March 1 for citizens to make written comments and the Railroad has until March 15 to respond to the comments. The STB representatives gave no indication of when they would make the final decision.
The STB decision may be a moot point in the long run because the DOE has yet to respond to the suit against them by CCCW, Inc. opting to engage in settlement talks. If the response from DOE favors the citizen group, the transfer of the wastes will not happen in Antonito. The response is expected around March 1.