Lakeville's Rail Car Landscape in Flux

Blue. Brown. Green.

For a number of Lakeville residents saddled with the sight of rail cars in their backyards, those colors all have the same look: Ugly.

Most Lakeville residents are familiar with the long, green line of boxcars that have been a stagnant presence along Kenwood Trail for much of the past few years creating a peripheral tunnel for motorists travelling along the artery.

It's also an unfortunate sight for visitors entering Lakeville along one of the city's most prominent gateways.

But a recent musical chair shuffling of those cars has helped changed the visual landscape in the city and rail car relocation activity is still ongoing, but there’s no guarantee the merry-go-round will stop anytime soon and many Lakeville residents want to get off the ride.

Since Progressive Rail, a Lakeville-based rail company which operates rail lines in Minnesota, Missouri and Wisconsin, began storing out-of-service rail cars on portions of exempt track in Lakeville, many residents have been left wondering what they have to do to get the graffiti-laden eyesores moved.

Dave Fellon, Progressive Rail’s President, was contacted for this story but declined to comment.

Residents have complained the rail cars are a splattered with profane graffiti, present safety hazards and are poorly maintained with regard to debris and garbage.

“It started about two and a half years ago when they would block access to our neighborhood for forty-five minutes at a time,” said Pam Steinhagen who lives in an area with only one way in and one way out that has dealt with the rail car issue since its beginning. “We got the police and fire departments involved due to the access, but then the storage came and it never went.”

“My kids, who were five and seven at the time, asked me about some words on the train and I had to quickly think up an age appropriate definition which doesn’t make me happy,” said Anglea Vanden Busch, a Lakeville resident who has had enough of the blight caused by the rail cars in her backyard. “My seven-year old said ‘What does rape mean, Mom?’ I had to quick say something.”

 The issues surrounding rail car storage are complex and backed by federal muscle which often leaves cities such as Lakeville with little to no recourse to respond to its citizens’ complaints.

“The storage of the cars is allowed under federal law and local communities do not have regulatory authority over the storage,” said Steve Mielke, Lakeville’s city administrator who has fielded numerous complaints on the issue.

Vanden Busch has helped lead the charge to rid Lakeville neighborhoods from the rail cars. She is frustrated not only by the visual detriment, but by the economic impact as well.

“The Dakota County assessors devalued the land that is within sight of the rail cars for 2011-2012 by approximately five percent,” she said.

Vanden Busch has posted numerous pictures of the graffiti residents have been constantly exposed to on a dedicated Facebook page and has been in constant contact with local and state authorities in an effort to find a loophole in the federal regulations.

“I think about this every time I drive over there and see these ugly rail cars,” said state representative Pat Garofalo in correspondence with Vanden Busch. “I’ve looked into changing state law to see if we could force them to move these rail cars but unfortunately, staff advises us that this is guided by federal law.”

Garofalo did commission his staff to look into the matter further and found a murky puddle of legislation and ambiguous legalese with regard to authority and options.

The research conducted by Garofolo’s staff found that current regulatory authority stems from the Interstate Commerce Commission Termination Act enacted in 1995. That legislation was part of a deregulation overhaul within the transportation industry which eliminated some agencies but also established the Surface Transportation Board (STB). According to that research, that legislation gave the STB exclusive jurisdiction over all rail transportation and “explicitly preempted state and local laws.”

“The view of the STB seems, in recent decisions it has issued as part of its regulatory process, to be that the federal law preempts health, welfare, environmental, and zoning regulations that could pose economic impacts to railroads,” Garofalo’s staff reported.

The recent economic downturn has forced many rail cars out of service and Progressive Rail benefits from the financial windfall they receive for storing rail cars on the exempt portions of track in Lakeville from other companies that don’t have an alternative place for excess cars in their inventory.

Court cases involving similar situations have met with predominantly favorable rulings on behalf of the STB-established policies.

“However, other courts have taken a more narrow view of the scope of federal preemption,” Garofolo’s staff concluded. “For instance, in various cases, courts have treated the powers of a local government to require environmental permitting as not being preempted by the federal law.”

Steinhagen, who also runs a daycare near a portion of Progressive Rail’s tracks, said she complained about storage of cars containing ethanol near the business, but again was met with roadblocks from local and state agencies that had to defer to the federal regulations.

“The City Council did as much as they could,” she said. “But the bottom line is money. It’s (the federal regulations) supposed to make up for losses the railroads have incurred.”

Progressive Rail was recently tagged with a $75,000 fine by the Minnesota Pollution Control Agency (MPCA) for a number of issues according to a MPCA press release including:

• Failure to notify the MPCA immediately of a number of spills, including the release of about 30,000 gallons of animal tallow to land and a ditch in 2005, and a spill of ferric chloride solution to the pavement within 10 feet of a stormwater manhole in May of 2008.
• Failure to take reasonable steps to prevent spills of hazardous materials such as oils, ethanol, sulfuric acid solution and ferric chloride.
• Allowing spilled materials to go into the stormwater conveyance system, which was connected to infiltration ponds, resulting in spilled materials being discharged directly into the soil.

The rail company is taking action to correct those issues by building a secondary containment structure to handle the safe transfer of those materials in the future.

Prior to those imposed fines, the MPCA looked into the rail car storage issue as of late last year and also found they were handcuffed to deal with the storage issue.

“I’m afraid we simply don’t have the authority to enforce the storage of these cars in your town,” MPCA authorities said in November in response to inquiries from residents. ”Unfortunately, even if they were full of some liquid, the MPCA does not have regulatory authority over their storage on these tracks.”

Both Vanden Busch and Steinhagen are relieved to see some movement of the cars recently and hope that the activity signals a shift in Progressive Rail’s storage strategy, or at the very least, an improvement in the economy that gets those cars back in service.

“Now that a lot of the rail cars are gone, we’re very happy,” said Vanden Busch. “But for those years, we had that wall through the city that was very unsightly.”

“We’ve gotten more updates now than we ever have,” said Steinhagen. “It’s typically always been day-to-day. “(The blue boxcars) are supposed to be out by mid-June, but we never know what’s going on until we hear the horns blaring through the neighborhood.”

“We know we moved next to rail tracks, so we knew somewhat what to expect,” added Vanden Busch. “But we didn’t expect graffiti-filled cars sitting there on a permanent basis. I think if a train came by every once in awhile, most people wouldn’t mind that.”