IWC Rejects Railroad’s Wetlands Permit

By Andrew Gorosko

Inland Wetlands Commission (IWC) members this week unanimously rejected a controversial wetlands permit application from the Housatonic Railroad Company concerning earthen filling that had occurred on the northern section of the railroad’s 13.3-acre property at 30 Hawleyville Road (Route 25).

The railroad had performed that earthen filling in connection with its controversial proposal to expand its solid waste handling operations at its property. That waste handling application is pending before the state Department of Environmental Protection (DEP).

In their February 24 rejection of the railroad’s application, IWC members decided that the filling work that the railroad has performed would have significant adverse effects on wetlands on the railroad property and on wetlands on adjacent property.

Also, IWC members decided that the railroad had not submitted for review alternative environmental protection plans which would cause fewer adverse effects, or no adverse effects, on the wetlands.

Additionally, in a procedural matter, the IWC decided that the railroad had not submitted some required paperwork to the IWC concerning abutting property owners being notified of the railroad’s filling plans.

Voting to reject the wetlands application were IWC Chairman Anne Peters, Sharon Salling, Katja Pieragostini, Dr Philip Kotch, and Mary Curran. IWC member Edward Bryan did not attend the session. Mr Bryan has recused himself from the railroad application because he was formerly employed by the railroad.

The applicant of record for the wetlands permit is Newtown Transload, LLC, a firm that would work as a contractor for the railroad as part of the railroad’s proposal to expand its solid waste handling operations.

Last July, the IWC had notified the railroad that it had violated the town wetlands regulations because it was doing earthen filling in an area regulated by the IWC without first gaining IWC approval to do so. In August, the IWC issued a cease-and-desist order to the railroad to stop that filling. The railroad then stopped the filling and in September it submitted a wetlands application through which it sought to correct the violation. The IWC opened a public hearing on the issue in October, which concluded in January.

“This has been a long process,” Ms Peters said before IWC members voted to reject the railroad’s application. The information that the railroad submitted to the IWC does not address the issues posed by the filling, she said. 

The applicant did not address the pertinent environmental protection issues, said Dr Kotch. The railroad would be handling contaminated solid waste in an area located near wetlands, he added. Such an activity would be hazardous in view of the high quality of those wetlands, he said.

A pristine woodland formerly was located in the area where the railroad has done the filling work, he said. “I agree 100 percent this application should be denied,” he said.

Ms Curran said she expects that the IWC would not have granted the railroad a wetlands permit if the railroad had sought a permit before it performed the earthen filling, so consequently a permit should not now be granted.

Ms Salling said that the railroad had not submitted for IWC review a set of reasonable and prudent environmental protection alternatives for the site, as had been requested by the IWC.

Ms Peters said she concurs with all IWC members’ comments on why the wetlands application is deficient, adding, “I think this application falls short.”

IWC members then voted to reject the application.

Colin Pease, the railroad’s vice president for special projects, attended the February 24 IWC session.

Mr Pease had no comment on the IWC’s action, saying that he wanted to read the text of the motion to reject the application before making any comments. The motion is couched in technical terminology based on regulations concerning wetlands protection.

Mr Pease said February 25, “We are disappointed with the decision.”

“We are committed to working with the town,” he added, stressing that the railroad wants to cooperate with the town. Railroad officials have not yet decided what steps to take in response to the application’s rejection, he said.

Ann Marie Mitchell, a member of the Hawleyville Environmental Advocacy Team (HEAT), also attended the IWC session. HEAT, an ad hoc citizens group, has strongly opposed the railroad’s proposed waste handling expansion project.

Ms Mitchell said after the vote, “They [IWC] did their job. They followed the letter of the law to protect the people of Newtown.”

 In view of the IWC’s rejection of its wetlands application, the railroad has the option of submitting another application that would meet the IWC’s requirements for a permit, or pursuing a court appeal against the IWC.

In the past, a railroad representative has questioned the IWC’s authority to regulate the firm’s activity, saying that the firm reserved the right to appeal the IWC’s jurisdiction on the case.

State Attorney General Richard Blumenthal, however, has informed the railroad that he considers the IWC to have the jurisdiction to regulate wetlands-related matters affecting the railroad.

The railroad performed extensive earthen filling on a spur of land on the northern section of its property in connection with its proposal to expand its solid waste handling at its rail terminal. The railroad proposes significantly increasing the tonnage and also expanding the range of solid waste that it transfers from heavy trucks onto railcars for shipment by rail for disposal at out-of-state landfills.

When Congress approved the Clean Railroads Act of 2008, it required that the health and safety aspects of solid waste handling by railroads be subject to regulation by the DEP. Previously, railroads had been subject only to federal regulation. The railroad’s application marks the first time that the DEP has reviewed such a waste handling proposal under the terms of the Clean Railroads Act.

The town government and HEAT have opposed the railroad’s expanded waste handling proposal. Town government opposition and the citizens group’s opposition has focused on issues including 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.