MYRTLE BEACH — The length of time a railroad is out of commission after it has declared officially that it will not be operating is not the only factor in determining if the closure has continued for an unreasonable length of time, an attorney for Carolina Southern Railroad said in an answer to a complaint filed with federal transportation authorities.
The embargo, the official name for a formal closure, “remains in effect because it meets the balancing tests set by the 7th Circuit Court of Appeals and the Surface Transportation Board,” Myrtle Beach attorney Tommy Brittain wrote in the answer.
Brittain’s filing Tuesday was in response to a complaint filed Aug. 26 by a number of area governments and Metglas Inc. that said Carolina Southern had effectively abandoned the railroad by the extended closure. It asked the U.S. Surface Transportation Board to force Carolina Southern owner Ken Pippin to sell his railroad.
Pippin could not be reached for comment Wednesday. Brittain was out of the country and couldn’t be reached.
Doug Wendel, co-chairman of a two-state committee that tried to find a solution to the railroad’s year-long closure, said he didn’t see anything new or different in Brittain’s Tuesday filing.
Carolina Southern shut down about a year ago because of problems with some of its bridges. Pippin has maintained that he doesn’t have the estimated $2 million to make the repairs.
Customers in Horry and Columbus, N.C., counties have had to resort to alternate, more expensive ways to bring in raw materials and ship finished products. Officials in Columbus County are concerned that without the railroad, Georgia Pacific will permanently close a lumber mill that could employ more than 400 people.
Norfolk Southern Railroad has sued Carolina Southern for more than $700,000 because Carolina Southern has not returned some rail cars it used to deliver goods. Horry County recently declared the railroad in default of $150,000 in back rental payments on the 14-miles of county-owned track between Conway and Myrtle Beach.
The county terminated the lease.
BP Amoco Chemical Co. has filed a motion to intervene in the action against Carolina Southern, saying the railroad has 14 of its rail cars essentially captive on its lines, the same complaint as Norfolk Southern.
The cities of Loris and Myrtle Beach also have asked to intervene on the side of the complainants.
The railroad has been turned down in two bids to get federal money to make the repairs, and Brittain’s Tuesday filing said a third application for a different kind of federal grant has been submitted and is under consideration.
Brittain also reiterates in his answer that the railroad is still seeking new owners.
“Mr. Pippin and (Carolina Southern) are open and continue to try to find means to operate the rail line,” he wrote.
The original complaint said the law allows a railroad embargo to last only for a reasonable length of time, but does not specify what that is. The complaint contends that that time has passed and asks for federal action to restore service.
The balancing tests that the Surface Transportation Board is to consider to determine if an embargo remains reasonable sets out four conditions in addition to the length of the embargo, according to the 2002 ruling by the 7th Court of Appeals. In the case it was considering, the STB sided with a railroad that governments and businesses along its route said had kept an embargo in place for too long a time.
The four additional considerations were the cost to repair the railroad, the intent of the railroad, the amount of traffic on the line and the financial condition of the carrier.
The court ruled that a 20-month closure on part of that railroad’s route was not too long.
The ruling stated in several places that it was important that the railroad worked with its customers to arrange alternate ways to ship their goods, even though they were more expensive than the original rail shipping.
Wendel said that Carolina Southern did the same with some of its Horry County customers, trucking their supplies and goods from and to Marion County, where it has four miles of track still operating that connect to a major rail line.
But Gary Lanier, executive director of the Columbus County Economic Development Commission, said he didn’t believe the same was true for the railroad’s customers in North Carolina.
He said it is possible that there was an attempt at some arrangements, but added that he believed he would have heard of them.
“I’d be surprised (if there were any arrangements),” he said.
Contact STEVE JONES at 444-1765.