Tuesday, July 15, 2014

Side issues FIASCO on FONSI: Not so fast, NNEPRA!!


Not too long ago, there was magic in the air as the mythical ship of MLF construction in the Brunswick West neighborhood (Bouchard Drive area) received a seeming ‘full-speed ahead’ decision.  This from the Federal Railroad Administration in the form of a “Finding of  No Significant Impact” (FONSI), as reported in this post.

The heroes behind this victory, Wayne and Patsy, shown stylistically above in earlier days, saw nothing but open waters and clear sailing ahead. And so, as you’ll see in a moment, the effort to select color schemes for their dreamed about building got underway.  (A later image can be found here: http://www.trainridersne.org/images/stories/Patricia-Wayne.jpg)


Our leads in the story are intent on assuring that the palette of their titanic industrial facility, if nothing else, is in perfect harmony with the natural tones of the surrounding area.  We’re touched by their sensitivity.

We post relevant citations of the FONSI event here for your convenience.  Emphasis, in all cases, is ours.

First, from NNEPRA itself:

In compliance with the National Environmental Policy Act (NEPA), NNEPRA provided Environmental Assessment documentation in support of the project.  The Federal Railroad Administration (FRA) has issued a Finding of No Significant Impact (FONSI) on June 17, 2014. 

NNEPRA is accepting input through July 22, 2014 regarding the exterior color of the building.  The building has been specified to be two-tone, with a top and bottom color.  The manufacturer has provided 11 color options to choose from.  Click here to view those options, and a few potential renderings.  You may provide your input regarding color preferences by completing this survey.  The input received from the public will be provided to members of the Brunswick Layover Advisory Group for discussion at their meeting on July 24, 2014. 


Then from their affiliate, TrainRiders Northeast:

The Federal Railroad Agency, which has jurisdiction over U.S. railroad activities, issued its long-awaited review of the Brunswick Layover Facility's Environmental Assessment provided to the agency by NNEPRA. The FRA issued a FONSI (A Finding of No Significant Impact) which clears the way for construction to begin on the BLF. It will house three train sets just 0.6 miles from the Brunswick Station.


This passage is from the FRA release of the FONSI decision itself:

An Environmental Assessment (EA) identifying the potential effects on physical, biological and human resources that could occur as a result of the proposed action was prepared in September 2013 and circulated for comments. A public hearing was held on September 26, 2013.  A total of 53 comment letters or emails were submitted to NNEPRA from 44 individuals throughout the comment period expressing opposition and support of the layover facility.  On June 13, 2014, the FRA Administrator signed a Finding of No Significant Impact (FONSI). The FONSI addresses the public comments and includes measures to minimize impacts that NNEPRA will implement with the Project. The September 2013 EA and the June 2014 FONSI are available for review using the links below as well as on the NNEPRA website


Clearly, the choo-choo community at large, including their supporters, took the position that the Brunswick West MLF is a ‘done deal,’ and that the trucks could start rolling.  To which we say,

Not so fast, NNEPRA; back up those trucks!

Why?  Well, we’re embarrassed to say, we didn’t do our usual due diligence on the materials associated with the FRA decision.  Fortunately, an acquaintance, who we suspect could be a founding member of Bus Riders Northeast, gave us a tip.  After a bit of follow up,  Other Side is issuing a Finding of AWOL Stewardship re: Contingent Obligations against the FONSI for NNEPRA’s proposed MLF project.

Or, in abbreviated form, a FIASCO.  Our reading of the FONSI says it contains news for NNEPRA: you are not released to start building the MLF; you are instead constrained, by edict of a Federal Administrator (FRA), to address crucial contingencies before proceeding in any physical way.  To make our point, we offer these two passages from pages 16 and 17 of the finding itself.  You can read the document here: https://www.fra.dot.gov/eLib/Details/L05263.  Emphasis again is ours.

This first item, in it’s opening and unambiguous words, obligates NNEPRA to comply with ALL requirements imposed by federal, state, and local governments.

VII. Commitments and Minimization Measures:

NNEPRA will be required to comply with all applicable federal, state, and local permitting requirements during the implementation of the Project, which will include:

  • Public Law 95‐217, Clean Water Act of 1977, 33 USC § 1251‐1376
  • Section 106 of the National Historic Preservation Act of 1966, as amended, 16 USC § 470
  • Section 404 of the Federal Water Pollution Control Act (CWA), 33 USC § 1344
  • Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 USC § 4601 et seq.
  • Executive Order 11990, Protection of Wetlands, 42 FR 26961, signed May 24, 1977

This second item, in the highlighted passage, makes it clear to us that the FONSI is CONDITIONED upon meeting the commitments just above.

VIII. Conclusion:

FRA finds that the Brunswick Layover Facility Project, as presented and assessed in the attached EA, satisfies the requirements of NEPA (42 USC § 4321 et seq.), Council on Environmental Quality (CEQ) regulations (40 CFR parts 1500‐1508), FRA’s Procedures for Considering Environmental Impacts (64 FR 28545, May 26, 1999), and FRA’s Update to NEPA Implementing Procedures (78 FR 2713, January 14, 2013), and the Project will have no foreseeable significant impact on the quality of the human or natural environment provided it is implemented in accordance with the commitments identified in this FONSI.

As the Project sponsor, NNEPRA is responsible for ensuring all environmental commitments identified in this FONSI are fully implemented. The EA provides sufficient evidence and analysis for FRA to determine that an environmental impact statement is not required for the Project as presented.


Your correspondent is not a counselor at law, as you know all too well.  Even so, we don’t see much wiggle room in this finding and related commitment issuing from the FRA Administrator.

As the recent Cumberland County Superior Court decision made all too clear, NNEPRA did not comply with State permitting requirements regarding Stormwater Management.  And we have reason to believe there are a significant number of other permitting requirements at the state level that must be addressed before construction at the proposed site can begin.  (Though we suppose there is no need to delay color selection.)

And we know for a fact that the building plan is not in compliance with Brunswick Zoning Ordinances.  

So it seems we should rest our case.  This FIASCO is cleared for publication.


We trust the principles in this story will take due note, cease any plans to get the trucks rolling, and get all hands on deck to follow up on that commitment to fully comply with state and local permitting requirements.

End Notes:

1) Warped mind that we are, we had hoped to issue a SNAFU proclamation against the FONSI, but we couldn’t come up with acceptable words for the acronym.  The best we could do was this:

SNAFU: Situation Normal; Absent Fiduciary Understanding

2) It also goes without saying that we have entered our summer posting slowdown, whether we realized it or not.  We’ve been busy on other ‘pursuits,’ and now the usual family visits, etc, are coming.  So we ask your indulgence as we put our priorities in other areas, except when something crosses our desk that simply must be addressed on a timely basis.

We think the subject of this post meets that standard.

Happy Summer.

1 comment:

  1. Someone or some powerful group wants that facility built where they want it and now it is no longer about any money that was to be made out of the deal but now their power has been threatened. Common sense will no longer prevail and unless that person or group is robbed of its power by someone even more powerful they will prevail if by no other means than out lawyering and wearing down its opposition.