Town Notifies Railroad Of Wetlands Violations

By Andrew Gorosko

The town has informed Housatonic Railroad Company that based on an inspection of its 13.3-acre site at 30 Hawleyville Road (Route 25), the railroad’s activities violate the town’s wetlands regulations.

“These activities include but are not limited to depositing material in wetlands areas, clearing wetlands, and causing sediment to discharge into wetlands,” wrote Rob Sibley, the town’s deputy director of planning and land use, in a July 24 letter to Edward Rodriguez, the railroad’s general counsel.

Mr Sibley enclosed photographs of the railroad’s wetlands violations in his certified mail submission to the railroad.

Mr Sibley informed the railroad that it is required to file a wetlands permit application with the town within ten days, or consequently be subject to fines and penalties for the wetlands violations.

The town’s notifying the railroad of the wetlands violations comes amid public controversy over the railroad’s proposal to significantly expand the tonnage and also increase the range of solid waste material which it transfers from heavy trucks onto railcars at its Hawleyville rail terminal for shipment for disposal at out-of-state landfills.

The town is formally opposing the railroad’s proposal to expand of its solid waste handling, having registered its opposition with state and regional agencies.

The waste expansion proposal has met with stiff opposition from nearby residents and local government officials who say that the expansion would pose environmental hazards, increase heavy truck traffic in the area, and damage Hawleyville Center’s character.

On July 29, Mr Rodriguez declined comment on Mr Sibley’s letter to the railroad.

“Obviously, I’m not going to ignore the letter,” said Mr Rodriguez, who also said he would be sending Mr Sibley a letter of reply.

George Benson, the town’s director of planning and land use, said on July 29 that he, Mr Sibley, and Town Attorney David Grogins had met with Mr Rodriguez and F. Colin Pease of the railroad to discuss the issues raised by Mr Sibley in his letter to Mr Rodriguez.

“We’re talking to them… At least they’re talking to us… It’s a legal issue,” Mr Benson said.

The railroad plans to submit information on the matter to the town, but it is unclear if it will submit a wetlands application as requested by Mr Sibley, Mr Benson said.

 “Nothing’s been resolved,” Mr Benson said, adding that the wetlands issues are under negotiation.

 On July 16, the inspectors from the state Department of Environmental Protection (DEP) and the state Department of Health Services made an unscheduled tour of the railroad site for which the railroad is seeking DEP permit approval to expand its solid waste handling.

In a report, DEP inspector Bethany McWade wrote, “Approximately one to two acres of land, which closely borders and appears to encroach upon wetlands, has been filled with material appearing to be clean fill with [small] amounts of rebar and scrap metal mixed in ... It appears that at least one area of wetlands located in the center of the proposed expansion area … has already been filled.”

Until Congress approved the Clean Railroads Act of 2008, the federal government had been the only regulator of railroad activities. Through that federal law, the DEP now has regulatory power over the public health and safety aspects of the railroad’s solid waste handling expansion proposal.

The railroad is seeking DEP permission to increase its solid waste handling from 450 tons daily to 2,000 tons daily.

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 at 30 Hawleyville Road has operated since 1995. It has handled solid waste since 2004.

It is the second time the town has informed the railroad of wetlands violations at the railroad property.

In June 2007, Mr Sibley informed the railroad that it violated town wetlands rules.

At that time, Mr Pease, who is the railroad’s vice president for special projects, responded by mail that railroads are exempt from local wetlands enforcement and the requirement to obtain wetlands permits. Mr Pease, however, then stated that Housatonic Railroad would voluntarily cooperate with the town concerning a possible erosion problem at its property.

Mr Pease said last month that the Clean Railroads Act of 2008 does not grant local wetlands agencies the authority to regulate railroad property.

In a June interpretation of the federal Clean Railroads Act of 2008 performed for the town by Attorney Philip P. Pires, however, the lawyer indicated 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 by the federal law.

In her report on the July 16 inspection of the railroad site, Ms McWade wrote, “The DEP received numerous complaints and concerns about the recent permit application received from the Housatonic Railroad Company, Inc, submitted in April 2009, to expand current solid waste operations at the site.

“Opposition of expansion has been expressed by local citizen groups, local officials, and government representatives. In July 2007, the Town of Newtown issued a wetlands violation to the existing facility handling commodities and solid waste for allegedly filling wetlands and regulated wetland areas. Residents and officials are concerned about the potential for soil and water contamination from the filling of wetland areas, expansion of the site, and the proposed handling of ash, contaminated soil, sludge, and asbestos,” she wrote.