Court Action Authorized—

Town Urges State To Reject Railroad Waste Expansion

By Andrew Gorosko

In a drive to derail the Housatonic Railroad’s proposal to expand its solid waste handling at its Hawleyville rail terminal, local officials have fired a salvo of letters urging state environmental regulators to stop the waste expansion project in its tracks.

Also, town leaders are warning the railroad not to proceed with its waste expansion project, charging that doing so would imperil the environment and also endanger the health and safety of residents.

In a late development, following discussion Wednesday evening, July 15, the Legislative Council unanimously authorized the town to pursue court action to stop the railroad from expanding and intensifying its waste handling operations in Hawleyville.   

In a July 7 letter to Robert C. Isner, who is the director of the state Department of Environmental Protection’s (DEP) bureau of materials management and compliance assurance for waste engineering and enforcement, First Selectman Joe Borst writes, in part, that the Board of Selectmen on July 6 voted to formally oppose the railroad’s waste expansion proposal at 30 Hawleyville Road (Route 25).

The site is in the Hawleyville Center Design District (HCDD) zone, an area that the Planning and Zoning Commission (P&Z) has designated as a place of future development keyed to a New England Village aesthetic, which does not include provisions for solid waste handling facilities, according to Mr Borst.

Mr Borst urges that the DEP not allow the railroad to increase its solid waste handling at its rail terminal from 450 tons daily up to 2,000 tons daily, and not allow the railroad to expand the range of solid waste materials which it would handle there. 

The railroad currently transfers solid waste from heavy trucks onto railcars for shipment for disposal at out-of-state landfills.

Until now, the solid waste shipped out by rail has largely been construction/demolition debris. In the permit application now 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.

Besides solid waste handling, the rail terminal is used for the transfer and storage of building materials, including lumber. The terminal has operated since 1995. It has handled solid waste since 2004.

The selectmen want the DEP to limit the railroad’s waste transfer operation to construction/demolition debris at the current level of 450 tons daily.

Mr Borst points out that the P&Z is concerned that the railroad’s waste handling expansion would lead to “a potential contamination of area soil and water due to a lack of governmental oversight and enforcement.”

The 2008 Clean Railroads Act, which was approved by Congress last fall, has given the DEP the authority to review the health and safety aspects of the railroad’s solid waste expansion proposal. Until then, only federal regulators reviewed railroad activities.

Because the town lacks jurisdiction over railroad activities, it is telling the DEP of its concerns over the waste expansion proposal.

Also, Mr Borst informs Mr Isner that the railroad’s solid waste project would put at risk longstanding plans to have Danbury become the regional center for solid waste transfer.

Railroad Notified

In a July 7 letter to Edward Rodriguez, the railroad’s general counsel, Mr Borst informs the lawyer of the selectmen’s opposition to the waste expansion plans, in view of potential environmental damage and endangerment of residents’ health and safety. Domestic water wells in that area use groundwater as their source. 

“The town is very concerned that the railroad has already expanded its [solid waste] operation prior to obtaining a [DEP] permit. The expansion has included filling in of wetlands on your site and impacts to adjacent wetlands. The website for Strategic Disposal, LLC, already states the facility can take in solid waste 24 hours a day, seven days a week, and already lists the materials that you currently are applying to [DEP] for permission to include in your permit,” Mr Borst adds.

In his letter, the first selectman demands that the railroad and Strategic Disposal stop receiving for transfer any solid waste other than construction/demolition debris. Mr Borst states that the railroad’s waste expansion project would violate the town’s zoning regulations.

In a June 11 interpretation of the federal 2008 Clean Railroads Act performed for the town by attorney Philip P. Pires, the lawyer indicates that the federal law may require the railroad to comply with town wetlands regulations and the town zoning regulations because those rules may be considered to have the legal force of “state requirements” as described in the federal law. In 2007, the town informed the railroad that its activities violated the town’s wetlands regulations.

Repeated attempts to reach Mr Rodriguez for comment were unsuccessful.

 

[naviga:h2]Attorney General [/naviga:h2]

In a July 7 letter to state Attorney General Richard Blumenthal, Mr Borst seeks to have the attorney general provide a legal opinion on the railroad’s solid waste expansion project.

Mr Borst explains that the town believes that the expansion would create a pollution source that would damage the local environment, the public health, and the public safety.

The first selectman also asks Mr Blumenthal to review the DEP’s and the town’s land use enforcement powers over the railroad under the terms of the 2008 Clean Railroads Act.

Solid waste handling at the railroad site has damaged wetlands there and the wetlands at adjacent properties, according to first selectman.

 Mr Borst urges that the attorney general endorse delaying any waste handling expansion at the railroad site until the DEP and the town can thoroughly review the railroad’s waste expansion application.

Mr Blumenthal said July 15, “I think the first selectman makes a number of good points…We’ll review it…We’ll have to review the very significant legal issues raised by the first selectman…I think there is very impressive merit to the opposition [which is] against expansion of this [solid waste] facility.”

Congressman

In a July 9 letter to Mr Isner of the DEP, US Representative Christopher S. Murphy expressed his “strong opposition” to the railroad waste expansion project.

Mr Murphy met on July 6 with residents and town officials opposed to the project who told him that the expansion could create soil and groundwater contamination problems in the Hawleyville area.

Also, Mr Murphy writes that the Housatonic Railroad’s expanding its waste handling could put at risk regional plans to have the City of Danbury acquire the White Street waste transfer station there to serve as a regional solid waste transfer station, thus jeopardizing regional waste disposal plans.

The congressman asks that DEP conduct soil tests at the railroad site to learn the nature and extent of any groundwater contamination that may have occurred there.  

In a July 7 letter to Mr Isner, P&Z Chairman Lilla Dean writes that the DEP should deny the railroad’s request for a permit that would increase the tonnage of waste handling and expand the types of waste handled.

The P&Z notes that a private solid waste facility, such as the one operated by the railroad, is not a permitted local land use and would be categorized as “a pre-existing, nonconforming use,” which should be limited to current waste volumes and waste types, specifically construction debris and demolition debris.

The town will submit detailed objections and evidence to DEP in opposition to the railroad’s proposed solid waste expansion project, according to Ms Dean.

Newtown has gained the backing of two regional agencies in seeking to thwart the Housatonic Railroad’s expanded waste handling proposal. Town representatives attended June sessions of the Housatonic Resources Recovery Authority (HRRA), and also the Housatonic Valley Council of Elected Officials (HVCEO) to explain the town’s opposition to the railroad’s waste expansion proposal, which focuses on environmental contamination concerns and increased heavy-truck traffic.

Both regional agencies now formally oppose the railroad’s waste expansion proposal.

Town fire officials have voiced a range of concerns about the railroad’s waste expansion proposal regarding firefighting issues, including the potential for hazardous tire fires. The Hawleyville Firehouse, which is adjacent to the rail terminal, shares a common driveway with the railroad.

DEP Response

On July 15, Mr Isner said the DEP has been received many letters from government officials and Newtown residents about the railroad’s waste expansion project. DEP staff will be considering those letters in its environmental review of the railroad’s permit application, he said.

The DEP will balance the letters of opposition with the railroad’s application in its permit review process, he said.

“We are in the initial stage of the review,” he said. That “sufficiency” stage of the process should conclude by the end of July, he said. During that stage, the DEP determines whether the applicant has provided all the information required for an environmental review, he said.

With all required information in hand, the detailed technical review of the project would commence, he said. Mr Isner said that following a technical review, the DEP may make a preliminary decision on the expansion project by early 2010.

Based on the level of interest in the topic, “It is likely that a public hearing would be held on this application,” he said.

That hearing would come sometime after the DEP has issued a preliminary decision on the application. A public hearing would be held at a suitably large location in Newtown, he said.

Mr Isner said that the DEP has reviewed about six applications in the past in which solid waste disposal companies have sought permission to transfer waste from their heavy trucks to railcars for shipment for disposal. The Housatonic Railroad application marks the first time that DEP has reviewed such activity in which a railroad is the permit applicant, he said.

The railroad would do business under the name Newtown Transload, LLC. The application fee for the DEP permit review of the project was $14,250.

Mr Isner said that conducting a public hearing on such an application will make the DEP’s review process lengthier and more complex. Holding a public hearing could add one year to the review process, he said.

Thus, the overall review of the railroad’s permit application could take two years or more, he said.

Besides reviewing paperwork submitted by the railroad, the DEP would make site inspections at the railroad property, Mr Isner said.