HRR To

Halt Filling & Seek Permit

By Andrew Gorosko

The Housatonic Railroad Company has agreed to halt earthen filling work at its 30 Hawleyville Road (Route 25) rail terminal and submit a wetlands permit application to the Inland Wetlands Commission (IWC) by September 9, in response to an August 13 town cease and desist order to stop that filling.

That local order was followed on August 19 by a stern warning to the railroad from state Attorney General Richard Blumenthal to cease illegal wetlands encroachments at the Hawleyville site or face prompt court action.

Edward Rodriguez, the railroad’s general counsel, agreed at an August 19 IWC session to submit the wetlands permit application, but added that the railroad reserves the legal right to challenge whether the IWC has wetlands jurisdiction over the railroad.

The wetlands protection issues have surfaced amid the railroad’s controversial application to the state Department of Environmental Protection (DEP) to expand and broaden the extent of its solid waste handling at the rail terminal. The railroad transfers solid waste from heavy trucks onto railcars for shipment by rail to out-of-state landfills for disposal.

Mr Rodriguez said the railroad is willing to allow the town to review activities on its 13.4-acre site in terms of wetlands protection, but in submitting a wetlands permit application, it wants to reserve the right to legally challenge the IWC’s jurisdiction to regulate the railroad’s activities.

When Congress approved the Clean Railroads Act of 2008, it required that the health and safety aspects of solid waste handling by railroads to be subject to regulation by the state DEP. Before then, railroads had been subject only to federal regulations.

In an August 19 letter to the railroad from state Attorney General Blumenthal, the attorney general urges the railroad to stop all earthen filling at the site.

In the letter to F. Colin Pease, the railroad’s vice president for special projects, Mr Blumenthal wrote, “You must immediately stop all illegal activity at this site.”

Citing the town’s August 13 cease and desist order to the railroad, the attorney general states the railroad must comply with the town’s wetlands regulations. Not only is the Housatonic Railroad Company required to comply with the state’s wetlands act, but also comply with wetlands orders issued by a municipality, according to Mr Blumenthal.

Mr Blumenthal wrote, “Your non-compliance [with town wetlands regulations] is a flagrant violation of state law and properly exercised municipal authority — a violation I will not tolerate. You must immediately comply with the law, or I will work with Newtown and the [DEP[ in taking prompt action in court to enforce the law.”

The attorney general adds that he is concerned by reports that the railroad is expanding its solid waste operation without yet having received a permit from DEP to do so.

“Nothing in the Clean Railroads Act of 2008 permits an expansion of operations beyond what existed at the time of enactment without appropriate environmental permits. To the extent that you are accepting or processing more or different waste than you accepted or processed at the time of the enactment of the Clean Railroads Act of 2008, you must stop immediately, or face potential court enforcement on this violation as well,” Mr Blumenthal writes.

Mr Rodriguez expressed surprise that the town had received a copy of the letter from the attorney general to the railroad before the railroad had received it.

Mr Rodriguez told IWC members that the earthen filling at the railroad terminal should have stopped after the town issued a July 24 “notice of violation” to the railroad, but due to a miscommunication between the railroad and its contractor, Strategic Disposal, LLC, that filling continued. Mr Rodriguez said he regrets that the filling continued to occur. “It wasn’t the right thing to do,” he said.

After the town realized that the filling was continuing, it issued the cease and desist order.

In June 2007, the town wetlands unit had issued the railroad a “notice of violation” concerning earthen filling which the railroad was then doing. The railroad later informed the town that the IWC did not have jurisdiction over railroad activities.

IWC member Dr Philip Kotch asked whether the earthen fill that has been brought onto the railroad site is contaminated. George Benson, town director of planning and land use, said it is unclear whether the fill is contaminated. Conservation Official Ann Astrarita said that the fill appears to contain crushed bricks, cement, sand, and metal fragments.

Mr Benson said that the filling that has been done by the railroad on the northern section of the site has occurred in an “upland review area” that lies within 100 feet of the edge of a wetland and is thus subject to regulation by the IWC. Although the filling itself may not be in a wetland, it is in area adjacent to wetland that is subject to IWC review, he stressed.

Mr Rodriguez said the railroad has done no filling within wetlands.

He said that the filling has been done to create an area where new railroad track would be installed to increase the railroad’s ability to handle solid waste. Such a track extension is not subject to IWC review, he said. “What we’re doing right now is a track extension,” he said.

 Mr Benson, however, said that the track extension is an integral part of the railroad’s application to construct a 10,000-square-foot building within which solid waste handling would occur. That filling is needed to create a location for that building, he said. Consequently, the IWC has jurisdiction over the filling that has occurred near wetlands, he said.

Mr Rodriguez said the railroad may revise its DEP application to eliminate the proposed building. Such a building would be expensive to construct, he said. Also, some nearby property owners do not seem to think that the presence of such a building would improve conditions, he said.

Mr Rodriguez said he is working to organize a public information session to explain the railroad’s plans for its site.

“We want to work with the [IWC]…to try to figure out the best course of action for the protection of the environment,” he said.

Following discussion on the railroad issues, IWC members decided to uphold the cease and desist order.

Also, the agency is requiring the railroad to submit a wetlands permit application by September 9. That would include environmental protection plans for wetlands and streams; a report on protection measures; permission for the town to enter the site to make inspections; the monitoring of protective measures; and a report on the overall effectiveness of the protective measures.

Failure to comply could result in court action and fines, according to the IWC.

The railroad has an application pending before the DEP to increase its solid waste handling from 450 tons to 2,000 tons daily, and also to increase the range of solid waste that it handles.

Until now, the solid waste shipped out by rail has largely been construction/demolition debris. In the permit application under review by the DEP, the railroad seeks to also handle contaminated soils, used casting sand, coal fly ash, dredge spoils, ash from resource recovery plants, sludge ash, treated woods, and scrap tires in the form of crumbed tires, shredded tires, and whole tires. The railroad’s DEP permit application indicates that it wants permission to operate the waste transfer station seven days a week, 24 hours a day.