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Meeting Held To Discuss Railroad

By Staff | Feb 8, 2017

Officials gather to discuss ongoing issues with the Route 2, New Martinsville, railroad crossing. (Photo by Chad Turner)

A meeting was held Monday, Jan. 30 in regards to ongoing issues with Route 2, New Martinsville blockages by CSX.

Those present included Steve Bohrer, mayor of New Martinsville; Larry Lemon, Wetzel County Commission President; Mary Jo Guidi, representative for United States Senator Joe Manchin’s office; Brian Jones, Director of Transportation for Wetzel County Schools; Mark Goodfellow, concerned resident; Don Riggenbach, Wetzel County Chamber of Commerce President; Kenna Smoyer, representative for Air Evac Lifeteam; Iris Isaacs, New Martinsville Councilwoman; Joel Potts, New Martinsville Councilman; Tim Haught, Wetzel County Prosecuting Attorney; Bill Rice, mayor of Sistersville; Chad Edwards, recorder of Sistersville; Charles Clements, West Virginia senator; Mike Maroney, West Virginia senator; Lisa Heasley, Wetzel County Commissioner; Bob Gorby, Wetzel County Commission vice president; Kristi and Jeff Gieseke, concerned residents, and Anthony Carovillano, Department of Highways. It was announced that CSX could not attend the meeting.

Prosecuting Attorney Timothy Haught stressed that a bypass is an ultimate solution; otherwise, other solutions would require federal legislation. Haught said federal legislation preempts state legislation with respect to supervision of railways. He cited several legal cases, referencing the progression of the law when it comes to railroads, and how federal law has jurisdiction over regulation of railroad crossings. Haught said the Federal Railroad Administration has jurisdiction of regulating railroads.

Haught referenced New Martinsville’s Brooklyn Bridge closure of 2013-2014. After the bridge was closed in March of 2013, the residents’ only way to and from their homes was across the railroad tracks, which are often blocked by trains, as the area is near CSX’s switching yard. Haught said when cases were brought before Wetzel County Magistrate Court, such as when CSX was charged for blocking the crossing for too long, the prosecutor’s office encountered cease and desist orders from the federal courts. “The Constitution basically says that federal government can regulate interstate commerce, so these acts prohibit the state and municipality from this type of regulation.” Haught said he had conducted hours of research on the issue but couldn’t find one case in which the state law was upheld.

Haught said there is limited enforcement ability by the state Department of Transportation, when it comes to CSX illegally blocking the roadway. “It is not their fault that they cannot regulate.” Haught said he had contacted the RSA about providing him with information to file a complaint, relative to the Route 2 crossing. Haught said his concern is a Saturday, Jan. 28 situation involving the emergency personnel who could not get across the train tracks at Route 2, to proceed to Paden City. Haught said he has further reached out to CSX’s attorney over the issue. The prosecuting attorney said he thought that if an agent of CSX was notified by emergency dispatch or law enforcement of the emergency, and failed to break the train so that first responders could cross, “(the agent) could potentially be charged with obstructing service personnel.”

Haught continued, “What I would have to prove to do that, which I will investigate, is that the conductor or someone at CSX had information. Statute says they should immediately clear the tracks.” Haught then discussed the fines for the offense, which is a misdemeanor. The first offense is not less than $150. The second offense, at the same crossing, is $250, and the third offense, at the same crossing, is $350.

Haught said the statute notes that upon receipt of notice of such an emergency circumstance, “the railroad should immediately clear the crossing.” Haught emphasized the word, “immediate,” saying that “they should act with deliberate speed.” He continued, “To me, what seems to be reported, is that they did not do that. It also seems to me that there seems to be a problem on CSX’s end with communication. Who do we communicate with?”

Councilwoman Isaacs said that the city had been contacted by CSX and was told not to contact the railyard anymore. The city was given a phone number in Jacksonville Florida to call in the event of an emergency.

Haught said that he is going to issue a memo to law enforcement, that if a train is blocking Route 2 during an emergency, someone from law enforcement or emergency response is to notify someone at the railyard, “even if they have to go there personally.” Haught explained, “If they have received notice, I’m charging them with obstruction. I’m charging the individual. I don’t care about the railroad company. If that engineer knows that there is an emergency vehicle being blocked, if he has knowledge – or if anyone at the yard has been told to move the train – I’m charging them with obstruction we can arrest the guy at the yard on the spot.”

“As far as the city is concerned, they can pass an ordinance, but the problem is, Congress has vested exclusive authority over these entities, and only Congress has the power to regulate interstate commerce.” Haught explained. Haught also said if he has proof law enforcement notified CSX, “a law enforcement officer can testify that he told them to move. If they didn’t move the train, that person will be charged with obstructing, and we will go to federal court.”

It was suggested that CSX be provided with a radio during emergency situations. Senator Maroney commented, “The radio is an awesome temporary solution but the whole reason you’re calling Jacksonville to begin with is because CSX doesn’t want you to be able to get ahold of them, because the minute you get ahold of them liability starts. So they are going to put up as many road blocks as possible. It’s a great idea but they are not going to accept it.”

“People are going to die… this is a big deal, and until someone they think is important enough dies, they’ll do something about it, but it is a huge safety problem.” Maroney also feels that the whole temporary solution is important because nothing happens quickly. He added that he would gladly go to the governor’s office to find out “what we can do.”

Haught reiterated that once a CSX representative is notified, “we would have a better chance of enforcing the statute with respect to emergency vehicles, than with respect to general members of the public. I think we have a better argument in federal court, which is ultimately where we are going with this. “

Guidi noted, to Haught, that some of the cases he cited would be good information for Senator Manchin’s office to have. Haught said he would get the information to Guidi. He noted, again, that if Congress would pass a law, concerning intersection or highway blockages, it would be enforceable.

Isaacs expressed a concern of hers, regarding hazardous materials hauled by the railroads. She brought up the Axiall chlorine leak, from August 2016. She noted that if a similar leak were to happen in the downtown New Martinsville area – Brooklyn – residents do not have a way to evacuate.

“There are several avenues we need to visit to see what we can do to keep New Martinsville as safe as possible and help people that need help,” Isaacs said. “Axiall is a definite example of how serious that can be.”

Mayor Bohrer brought up the fact that both Covestro and Axiall, chemical plants located north of New Martinsville on Route 2, haul hazardous material “that could be a problem.”

Jones inquired about an overpass designed for emergency vehicles. Carovillano explained that creating an overpass could be a solution to the blockage of emergency vehicles but “fixing one problem could create several other problems”…money is always an issue. The quorum discussed how an overpass could possibly block Foundry Street to the board of education office, or to the chamber of commerce’s industrial park. Carovillano explained that if the DOH would participate in a project, such as an overpass, the project still “wouldn’t happen overnight.”

Carovillano explained, “We would need a temporary solution in place for this to continue to happen. Many of our (DOH) projects are two, three, or four year projects.”

Commissioner Lemon suggested that Senator Manchin’s office, along with the offices of Senator Shelly Moore Capito (R-W.Va.) and Congressman David McKinley (R-W.Va.) send a letter to CSX, “to respond to the information we have raised tonight, with special emphasis to emergency vehicles and additional emphasis on the most recent situation.”

Newly appointed West Virginia State Senator Charles Clements assured the fellow attendees of the meeting that himself, Senator Maroney, and Delegate Dave Pethtel would inform Charleston of the situation. Clements also stated that a longterm solution is an overpass.