At Housatonic Railroad Site—

US Army Corps Of Engineers Seeks Wetlands Data

By Andrew Gorosko

The US Army Corps of Engineers (USACE) is seeking information from the Housatonic Railroad Company on whether the railroad’s earthen filling at its 30 Hawleyville Road rail terminal has violated federal regulations on wetlands protection.

In an October 13 letter to F. Colin Pease, who is the railroad’s vice president for special projects, Robert J. DeSista, the chief for permits and enforcement of USACE’s New England District, writes, “It appears that there was an expansion of your facility involving the depositing of fill in wetlands at the rear of your property. Some or all of this work may be within Corps of Engineers jurisdiction. Work within our jurisdiction without a permit may be a violation of federal law.”

The railroad performed the earthen filling on a spur of land on the northern section of its 13.3-acre property in connection with its controversial proposal to expand its solid waste handling at its rail terminal. The railroad proposes significantly expanding the tonnage and also increasing the range of solid waste that it transfers from heavy trucks onto railcars for shipment by rail for disposal at out-of-state landfills.

USACE does not regulate solid waste handling, but does regulate the filling of wetlands in certain cases. The organization is a public engineering, design, and construction management agency.

Concurrent with the USACE inquiry to the railroad, the town’s Inland Wetlands Commission (IWC) is conducting a public hearing on the wetlands protection aspects of the railroad’s filling work. The IWC hearing is slated to resume at 7:30 pm on Wednesday, October 28, at the town offices at 31 Peck’s Lane.

Mr DeSista explains in the letter that the railroad should not perform any further or future apparently unauthorized work in areas under USACE jurisdiction and should also provide certain information about the filling work that has already occurred. Additionally, he explains what steps the railroad may need to take correct any apparently unauthorized filling.

In the letter, Mr DeSista submits a long list of technical questions about the earthen filling at the railroad site. That requested information concerns data on: wetlands permitting; wetlands delineation; waterways; mapping that depicts previous conditions and current conditions; the dimensions of construction work; elevation contours; the location, area, and volume of fill placement; the railroad’s use of consultants, their identities, and their contact information; the name of the firm that performed the filling; the type of fill that has been used; the purpose of placing the fill; the future uses of the site; and the time period during which the filling occurred, among various other questions.

“If we determine there has been a violation of federal law, you must either remove all work within our jurisdiction, thereby completely restoring the area to preconstruction conditions, or apply for and receive an after-the-fact permit to retain or modify the work,” Mr DeSista writes. He asks for a formal response from the railroad within 30 days of its receiving the USACE notice.

Barbara Newman, USACE’s project manager on the railroad matter, said October 21 that USACE jurisdiction in such cases extends from the US Clean Water Act, a law that governs water pollution. Certain criteria must pertain if USACE is to become involved in regulating the railroad’s earthen filling, Ms Newman said.

Ms Newman said that after receiving the letter from USACE, Mr Pease contacted her, explaining that the railroad intends to formally respond to the questions posed in Mr DeSista’s letter.

Mr Pease could not be reached for comment before deadline.

Ms Newman stressed that USACE’s possible jurisdiction in the matter involves earthen filling in wetlands, not solid waste handling.

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 Department of Environmental Protection (DEP). Previously, railroads had been subject only to federal regulation. The railroad’s application marks the first time that the DEP has reviewed such a waste handling proposal under the terms of the Clean Railroads Act.

 

First Selectman Joe Borst said October 21, “I was very happy to the see the Corps of Engineers letter. That’s putting the pressure on [the railroad]…I was very happy to get that letter….It’s going to build up our case.”

USACE involvement in the railroad matter serves to strengthen the town’s case against the railroad’s expanding its solid waste handling in Hawleyville, Mr Borst said.

The federal organization is very demanding in terms of its technical requirements, he noted.

Mr Borst said that the railroad’s proposal to expand its solid waste handling at its truck-to-rail waste transfer station could become a protracted matter. “This thing could drag on for a couple of years,” he said.

The railroad’s waste expansion project has made many people unhappy, Mr Borst noted.

The town would prefer that solid waste handling occur at an existing truck-to-rail waste transfer station on White Street in Danbury, Mr Borst said.

Also, the town would prefer that the railroad not handle any solid waste at its Hawleyville terminal, he said. But in practical terms, the town is seeking to prevent the waste handling there from expanding, he added.

George Benson, the town’s director of planning and land use, said that if USACE becomes involved in regulating the railroad’s wetlands filling, it would complement the IWC’s wetlands oversight in the case.

“[The railroad] filled over the area that we contend had wetlands,” Mr Benson said.

Historical aerial photography of the area could be used to interpret what has happened in terms of wetlands filling, he said. The outline of the wetlands that existed in that area before the earthen filling occurred is unclear, he noted.

The town should convince USACE to become involved in regulating the railroad’s wetlands activity, Mr Benson said. The town, as well as a local resident, had contacted the federal agency about the wetlands issues, he said.

The town has sent photographs to USACE showing the nature and extent of the railroad’s earthen filling at its property, Mr Benson said.