DEP Cites HRR Waste Violations

By Andrew Gorosko

The state Department of Environmental Protection (DEP) this week issued the Housatonic Railroad Company a “notice of violation,” stating that the railroad has violated environmental law on solid waste handling, based on railroad activities in Hawleyville observed by a DEP inspector on September 2.

The DEP also sent copies of the violation notice to the related firms known as Maybrook Railroad Company; Strategic Disposal, LLC; and Newtown Transload, LLC, explained Robert Isner, who heads the DEP’s waste engineering and enforcement unit.

According to the September 21 notice, the waste-handling violation occurred approximately 2,040 feet east of the railroad’s grade crossing at 30 Hawleyville Road in Hawleyville Center.

The notice states that the railroad had built or established an unauthorized solid waste transfer station there without first having submitted a plan, design, and collection method for such a facility for DEP review and approval. The DEP asks the railroad to inform it whether some contractor for the railroad conducted the illegal waste handling there on September 2.

In a September 3 report on her inspection of the site the previous day, DEP environmental analyst Bethany McWade wrote that she had been alerted by the town that workers reportedly were using heavy machinery to unload waste from roll-off dumpsters into railcars at a site owned by the Maybrook Railroad Company, which is adjacent to the Housatonic Railroad Company site.

 Ms McWade and two town land use agency staff members observed the waste loading from a Barnabas Road property, according to the report. The waste being handled appeared to be processed construction and demolition debris, Ms McWade wrote. 

The DEP’s violation notice comes amid stiff public and town government opposition to the railroad’s controversial proposal to expand its solid waste handling and increase the range of waste which it transfers by rail from its Hawleyville terminal. The railroad transfers solid waste from heavy trucks onto railcars for shipment by rail for disposal at out-of-state landfills. Opposition to the waste expansion project focuses on the possible adverse environmental effects of such activity.

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 state DEP. Previously, railroads had been subject only to federal regulation.

Mr Isner said the violation notice is the DEP’s first enforcement action against any railroad in the state under the terms of the 2008 Clean Railroads Act.

The railroad has an application pending before the DEP to increase its solid waste handling from 450 tons daily to 2,000 tons daily, and also to increase the range of solid waste 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. A DEP public hearing on the permit application is expected sometime in 2010.

To expand its waste handling, the railroad has proposed constructing a 10,000-square-foot building on the northern section of its 13.4-acre site. A large volume of earthen fill has been deposited at that location where that building would be constructed.

Thus, the DEP also is seeking information from the railroad on the origin of that fill, the amount of fill that has been transported to the site, and whether that fill meets the DEP’s definition of “clean fill.”

In a parallel matter, the town’s Inland Wetlands Commission (IWC) is scheduled to conduct an October 14 public hearing on the railroad’s seeking a wetlands permit for the placement of that fill on its site in proximity to wetlands. The IWC oversees the environmental protection of wetlands and watercourses.

Initially, the IWC had issued a violation notice to the railroad concerning that earthen filling. The IWC later issued a more stringent cease-and-desist order to have the railroad stop that filling.

The railroad then halted the filling and sought a town wetlands permit through its contractor known as Newtown Transload, LLC. The railroad, however, has reserved the right to legally contest the IWC’s regulatory jurisdiction in the case, claiming that the 2008 Clean Railroads Act does not necessarily provide the IWC with wetlands jurisdiction over the railroad.

Additionally, the DEP is seeking information from the railroad concerning the railroad’s past waste handling at the Hawleyville site, including the types and amounts of solid waste that were processed there and were later shipped out by rail. Also, the DEP seeks information on the places to which that solid waste was shipped for disposal.

Mr Isner described the DEP violation notice to the railroad as “an initial enforcement action,” which lists a specific violation of state environmental law and seeks information concerning the railroad’s proposed waste-handling expansion project. The DEP would review the railroad’s response to that notice to decide whether additional enforcement is needed, he said.

The September 2 DEP inspection did not conclusively show whether the railroad or the related companies were responsible for the waste-handling violation, he said. The violation that was observed on the September 2 inspection constituted waste handling, which required a DEP permit concerning the public health and safety aspects of such activity, he explained.

“We will remain involved with this [enforcement action] until we reach a conclusion,” he said.

State law provides the levying of civil penalties of up to $25,000 daily for violations of environmental law. State law allows DEP staff to make unannounced inspections of sites with pending violations.

The DEP is seeking a response from the railroad on how it will comply with the enforcement notice, Mr Isner said.

Town Response

George Benson, town director of planning and land use, reacted to the DEP’s enforcement action, saying, “This is an appropriate reaction to the situation.”

Mr Benson noted that the division of the DEP that is reviewing the railroad’s solid waste-handling expansion permit application is the same DEP division that has issued the violation notice to the railroad.

“It’s very significant…It’s a big development, ” he said of the violation notice. “Now, the state is on the record” concerning the railroad’s waste handling, he said.

The local ad hoc group known as Hawleyville Environmental Advocacy Team (HEAT) has worked to heighten public interest in the railroad’s proposed waste-handling expansion project, Mr Benson noted. (See related story.)

Asked to comment on the DEP’s violation notice, Edward Rodriguez, the railroad’s general counsel, referred a reporter to a September 21 letter he wrote to state Attorney General Richard Blumenthal. The town has sought the attorney general’s legal aid over its concerns about the railroad’s waste handling.

In an apparent reference to the waste handling observed by the DEP inspector on September 2, Mr Rodriguez wrote, “Housatonic Railroad received a complaint that waste material is being unloaded in an area south of the tracks. In the past, some [construction and demolition] material was transferred at that location. That activity was discontinued some time ago, and is not part of the intended future activities at that location. Recently, a crew was at that location cleaning up some debris that should not have been there and dismantling and removing metal bins and equipment.

“The only waste activities which Housatonic anticipates occurring south of the tracks in the future would be activities outside of the scope of the local jurisdiction conferred by the Clean Railroads Act [such as the[ transfer of material in its original shipping container,” he wrote.

Mr Rodriguez wrote that additional earthen filling on the railroad site would not occur until the town IWC has an opportunity to review the pending wetlands permit application.

Also, railroad representatives have met with town officials to discuss how the railroad’s permit application could be modified to address the town’s concerns, Mr Rodriguez added.

“Housatonic [Railroad] is working on a voluntary and unilateral modification to the DEP permit application to limit the waste materials for which a permit is sought, and to impose certain other restrictions upon future Housatonic activities,” he added.

Town officials plan to meet with representatives of the DEP and the attorney general’s office to plan a legal strategy concerning the railroad’s proposed expansion of its solid waste handling.