Wetlands Permit Sought For Railroad Waste-Handling

By Andrew Gorosko

The Housatonic Railroad Company this week submitted a wetlands permit application to the Inland Wetlands Commission (IWC) as part of its controversial proposal to expand its solid waste-handling activities at its Hawleyville rail terminal at 30 Hawleyville Road (Route 25).

In a September 9 permit application letter to the IWC, Edward Rodriguez, the railroad’s general counsel, however, reserved the right to legally challenge the IWC’s regulatory jurisdiction over wetlands protection as it affects the railroad.

Wetlands protection issues have surfaced amid the railroad’s application to the state Department of Environmental Protection (DEP) to expand and broaden the extent of its solid waste handling at its rail terminal. The railroad transfers solid waste 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 to be subject to regulation by the state DEP. Before then, railroads had been subject only to federal regulations.

Because the IWC operates under state law in environmentally protecting wetlands and watercourses, it is enforcing its wetlands regulations over railroad activities.

In the September 9 permit application, the applicant named for the waste disposal project is Newtown Transload, LLC, which is a contractor to Housatonic Railroad.

“The property is owned by Housatonic Railroad Company, Inc. Housatonic Railroad consents to the filing of the application by Newtown Transload, LLC,” Mr Rodriguez writes in the letter.

Mr Rodriguez writes that by filing the wetlands permit application, “Housatonic [Railroad] does not consent or acquiesce to or otherwise submit or subject itself to any jurisdiction of the commission beyond such jurisdiction, if any, that the commission would have in the absence of this application under applicable provisions of state or federal law. Housatonic Railroad fully expects to resolve all issues with the commission, but must reserve the right to contest the jurisdiction of the commission, or actions or orders thereof, with respect to any matters, including those encompassed by the accompanying application, in the same manner and in the same forums as would exist if the application had not been filed.”

Mr Rodriguez writes that the IWC and the railroad share the common goal of protecting wetlands, adding that the railroad wants to cooperate with the IWC to resolve any issues and take actions to protect wetlands.

On August 19, after it had been issued an August 13 cease-and-desist order by the town to stop earthen filling in proximity to wetlands, the railroad agreed to submit a wetlands permit application to the town, but reserved the right to challenge the IWC’s jurisdiction to enforce the wetlands regulations against the railroad.

In the wetlands application, Newtown Transload proposes physically altering 3.7 acres of upland area on the 13.4-acre property. Approximately one-twentieth of an acre, or about 2,178 square feet of wetlands, would be altered, according to the application. Approximately 8,800 square feet of wetlands and/or watercourses would be restored, enhanced, or created, it adds.

The application includes a soil report pertaining to wetlands/watercourses protection, a report on stormwater control, and various mapping of the property.

The IWC is expected to hold a public hearing on the wetlands permit application on October 14.

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.