DEP Preparing Enforcement Action On Hawleyville Waste Handling

By Andrew Gorosko

The state Department of Environmental Protection (DEP) is formulating a proposed enforcement action covering violations of state environmental protection laws stemming from solid waste handing activities at the Housatonic Railroad Company’s rail terminal at 30 Hawleyville Road (Route 25).

Robert Isner, DEP’s director of waste engineering and enforcement, said, “We are in the process of developing a proposed ‘consent order,’” which would specify the enforcement for violations of the environmental protection laws.

Such an order would require the payment of unspecified fines, with the option of performing an environmental improvement project, which would reduce those fines.

Last July, the DEP issued the Housatonic Railroad and the railroad’s solid waste handling contractor, known as Newtown Transload, LLC, notices that they had violated environmental protection laws. Those notices of violation were based on the results of a DEP inspection at the site last April.

The DEP issued those violation notices under the terms of the Federal Clean Railroads Act of 2008. That law shifted the responsibility for regulating the health and safety aspects of railroad companies’ solid waste handling practices from the US government to state governments.

The railroad and its contractor are in the midst of an ongoing, controversial permit application to the DEP through which the railroad seeks to increase the range of solid waste and also expand the tonnage of solid waste that it handles at its 13.3-acre site. The application has been under review by the DEP since the spring of 2009.

The railroad transfers solid waste from heavy trucks onto railcars for shipment by rail to out-of-state landfills. Besides solid waste handling, the rail terminal is used for the transfer and storage of building materials, including lumber.

The waste expansion application has drawn stiff opposition on environmental grounds from town officials and from a citizens group known as Hawleyville Environmental Advocacy Team (HEAT). The environmental concerns include the potential for surface water pollution and groundwater pollution due to expanded waste operations. Other issues include quality-of-life matters, such as increased truck traffic, increased noise, and additional blowing dust in the area.

Mr Isner said that he expects the text of the enforcement action to be formulated by late April.

The DEP’s violation notice to the railroad lists five reasons why the railroad was cited.

These include that the railroad allegedly:

*Altered the proposed design and operation of its solid waste expansion application pending before the DEP without following DEP procedures.

*Failed to remove waste stored on the property within 48 hours.

*Failed to unload solid waste only within an enclosed structure.

*Failed to keep the solid waste facility and adjacent areas clean and reasonably free of litter.

*Failed to notify DEP within 24 hours that a roof had collapsed last April over the area where the railroad handles solid waste.

In its notice to Newtown Transload, the DEP listed ten environmental violations.   

These include that Transload: failed to seek an industrial stormwater discharge permit in connection with its waste handling activities on the railroad site; failed to prepare, implement, and keep on the railroad property a pollution prevention plan; and failed to maintain good housekeeping practices at the facility.

Also, the DEP states that Newtown Transload: failed to maintain adequate erosion controls at the site; failed to cover all dumpsters and all roll-off waste containers at the site; and failed to provide suitable chemical containment facilities.

Also, the DEP states that Newtown Transload: failed to maintain required records of its activities; failed to complete environmental monitoring requirements; discharged sediment into a wetland or watercourse without a permit; and discharged stormwater with a potential to pollute.

Mr Isner said this week that the responsibilities of the Housatonic Railroad Company and Newtown Transload, in terms of their respective environmental law violations, would be refined through the wording of the proposed consent order.

Mr Isner declined to provide details on the pending enforcement, saying he cannot discuss specifics until such a matter is resolved.

In a related matter, the DEP has informed the Housatonic Railroad about the implications of a June 2010 state environmental protection law concerning solid waste handling that occurs near aquifers, which are underground sources of drinking water.

That law seeks to prevent the expansion of solid waste handling facilities that lie within 1,000 feet of a “primary aquifer” or a “secondary aquifer” until and unless there exists a clear need for such additional solid waste handling capacity as specified by the state’s Solid Waste Management Plan. The railroad property sits atop an aquifer.

In practical terms, the new law would likely make it more difficult for the Housatonic Railroad to accomplish its proposed solid waste expansion project.

Colin Pease, the railroad’s vice president for special projects, said he has not yet received any proposed consent order from the DEP concerning violations of environmental law, and thus has no comment on the matter.

Mr Pease said that the June 2010 law on waste facilities’ proximity to aquifers has caused some uncertainty.

“There’s certainly confusion about that law,” he said, adding that the railroad is seeking to determine whether or not the law affects the railroad’s pending DEP waste application.

The DEP’s review of the railroad’s application has been “very comprehensive,” Mr Pease noted.

Mr Isner said that by late summer or early fall, the DEP may issue a “tentative determination” on whether the railroad’s waste expansion application should be approved. That would amount to a preliminary decision by the DEP’s technical staff.

If the DEP then receives a petition bearing the names of at least 25 people, it would later hold a public hearing on the tentative determination. Based on the wide public interest in the matter, it is expected that such a public hearing would occur.