Opposition Rallies Against Transfer Station Application

By Kendra Bobowick

The appeals are urgent.

“We need federal support to stop the Housatonic Railroad in [its] tracks,” and “Get informed and get involved,” said the hurried emails from residents against a local railroad transfer station’s application to the Department of Environmental Protection (DEP).

First Selectman Joe Borst, resident Terry Laslo, grassroots members of Hawleyville Environmental Advocacy Team (HEAT), and Land Use Agency officers are among the growing ranks voicing one prevailing concern: “We don’t want a 24/7 transfer station.”

The Housatonic Railroad Company has submitted an application for its Solid Waste Rail Transfer Facility, which handles material including construction and demolition debris. [See the specifics in the 113-page application at dontwastehawleyville.com/HRR_app.pdf.] The application also “seeks approval for 2,000 tons per day … that will be processed through the existing building and the new building(s) to be constructed in Phase II,” which is far greater that the roughly 450 tons handled currently.

Railroad representative Edward Rodriguez, executive vice president and general counsel, gauged the past weeks’ public reaction this way: “There is so much confusion in the community about this. I think the permit process with the DEP has caused people to pay attention to something they hadn’t .”

The Housatonic Railroad Company Inc filed an application April 13 for its solid waste rail transfer facility at 30 Hawleyville Road in Newtown, which notes that the terminal is “permitted to operate twenty four hours per day, seven days a week.” The hours and volume are among residents’ top concerns.

Mr Rodriguez said the railroad “arbitrarily” chose 2,000 tons a day as its maximum. “Honestly, it’s just a number,” he said. The DEP application asked for maximum volume. “We put 2,000,” he said. Prior to the application, he explained, “We had no maximum volume.”

Will operations increase? “No, no,” Mr Rodriguez stressed. “For some years we have operated with a fixed fleet of rail cars and there has been no increase.” He made no promises, however. Although he mentioned no plans to expand, he said, “I hope a little. We would like to, but I have no expectation that we’ll come anywhere close to the limit we set. I can’t promise we won’t, but we handle the market, there is only so much…” He thinks the public’s response is “knee jerk.” The transfer station has operated in its current manner for several years.

The recent Clean Railroads Act of 2008 gave the DEP some jurisdiction over health, safety, and environmental issues, Mr Rodriguez said. The act is a new provision opening doors for DEP jurisdiction, and possible input from municipal agencies. The DEP now requires an application, which he thinks sparked an outcry. “I am not saying we won’t, but we don’t have specific plans to increase [operations].” Currently track repairs are taking place, he said.

Noting one “substantive change,” Mr Rodriguez said, “We asked for permission to construct a building.” The idea is to keep business indoors creating a “less visible, cleaner and better operation for the community and environment.” The building is the “only change of significance.”

He said again that business will be as it has been for the past several years. Increases will depend on the market and economy, on what is constructed and what is demolished, he said. If increases take place, he said, “I can’t anticipate it will be more noticeable than in the past.”

Last month, Selectman Herb Rosenthal had expressed skepticism about railroad representatives explanations. He had said he does not have confidence in the answers from the railroad’s Vice President of Special Projects Colin Pease. “I don’t believe what they say, frankly.” Why? Mr Rosenthal said this week, “Because of my dealings with them when I was first selectman.” He claims that until the 2008 act, the town had no say regarding the railroad’s operations, and saw “little cooperation from them,” when wetlands issue arose, for one. “I have no confidence,” he said again.

Asserting that some officials and residents are “not receptive to explanations,” Mr Rodriguez said Tuesday, “Their minds are made up.”

Wednesday morning Mr Pease responded to whether or not the transfer station operations would be expanding. “What we have done for the last four years now — we have a fleet of 60 railcars and we bring in materials to the transfer facility and transfer it to Ohio.” That operation will continue, “unless there is significant change in the market.” Visible changes now onsite include track repairs and extensions and ultimately reducing noise, he said. A second phase, as mentioned in the application, includes a new building. “It is what we proposed to the DEP and we can’t do it without their feedback,” Mr Pease said, noting the Clean Railroads Act provisions. Loading could occur indoors, reducing noise and debris. “I consider this an improvement. Are we going to build a building? I don’t consider it an expansion.”

Regarding an increased volume of work, he said, “At this point we are not expanding. Can I look ahead five years and anticipate the market? I can’t,” said Mr Pease. “We are comfortable now with 60 cars.” Like other businesses, the railroad officials would like to do well. “We hope, obviously, for growth in the market,” Mr Pease said.

He also emphasized, “You can never do too much conversation.” He has met with Land Use Director George Benson, his deputy Rob Sibley, and selectmen both recently and in the past. He said he made a phone call to the town’s land use officials to coincide with the April application to the DEP. A copy also was placed in the library. He said he is sorry to hear that Mr Rosenthal is “not confident,” but he is still open to meet with people regarding the transfer station and operations.

Determining The Towns’ Role

The railroad has written a check of more than $14,000 to cover the state Department of Environmental Protection’s application fees per the Clean Railroads Act. Land Use Director Benson is among a growing group to recognize, “This is all new ground with the new law…” Neither Mr Rosenthal nor Mr Rodriguez are aware of any other similar application processes underway in the state subsequent to the Clean Railroads Act. (See the act in full, also available through the HEAT website, or at www.govtrack.us/congress/billtext.xpd?bill=hr110-1492.)

Mr Benson is appealing to the DEP for guidance in determining what, if any, role the town might have in the permit review process. Director of the DEP’s Waste Engineering and Enforcement Division Robert Isner wrote in a recent email, “There are uncertainties [over a town’s role] under the 2008 act.”

While Newtown officials have no specific authority over the DEP’s railroad transfer station review, Mr Benson said, “We can express what we want in the review process … we have power to persuade …”

Mr Isner wrote: “The DEP does accept and give consideration to input from local officials on all permit applications, especially those permits that have no local venue.”

Mr Benson said that the lines of authority are murky. “It’s a new law and the first time [an application process] has happened; we’re trying all we can.” He and the town have sought legal standing. Earlier in June, Philip Pires with Cohen and Wolf, PC, Attorneys at Law sent a three-page opinion that in one part states the railroad “is probably subject” to several of Newtown agencies’ regulations, and that the railroad “arguably must comply” with regulations, but can apply for exemptions from state or local land use requirements. In his June 11 Clean Railroads Act interpretation, Attorney Pires indicates that the federal law may require the railroad to comply with town regulations — those rules may have the legal force of “state requirements” as described in the federal law.

Mr Rosenthal said the Clean Railroads Act of 2008 may give Newtown some room for enforcement; he also looks to town counsel. “This is something for the lawyers to settle.” Mr Isner agrees that the question of local jurisdiction is, in part, legal.

Mr Sibley feels the act may give town officials and the state some leverage. He is not sure the railroad feels the same. “That’s why we wanted to get the attorney general on board,” he said.

The Clean Railroads Act potentially offers “a degree of power” to the Department of Environmental Protection, and the town, but Mr Benson feels, “This is going to be a long battle.”

A large-scale, 24-hour-a-day transfer station “will change the face of Hawleyville and open a door for [the Housatonic Railroad] to do whatever they want to do.” He clarified, “We’re not against the railroad, but why that location?” The proposed site is “in the middle of a neighborhood,” he said, and nestled amid wetlands. Town officials are “actively pursuing” their opposition. Selectmen, the Planning and Zoning Commission, the Housatonic Resource Recovery Agency, the Housatonic Valley Council of Elected Officials, State Representative Christopher Lyddy, Congressman Chris Murphy, and the town’s legal counsel are among the private residents and officials standing against the transfer station’s potential to expand.

Referring to Mr Murphy and the DEP, Mr Benson added, “Obviously, we’re working with them and doing what we can.” Considering Mr Murphy’s recent involvement, and promise since Monday to draft a letter expressing his support for Newtown, Mr Sibley said, “We feel that this is the moment to take steps and use the [Clean Railroads Act] as a catalyst to enforce regulations.” The town also cited the railroad for violating wetlands regulations in 2007. Officials have been ignored, Mr Benson said this week. Mr Sibley intends to “confirm any damage to wetlands or watercourses to date.” Mr Rodriguez said Tuesday that hired surveyors helped determine that the railroad did not overstep property boundaries. A letter has gone out to Mr Benson’s office, Mr Rodriguez said Tuesday. As of Wednesday morning the office had not yet received it.

Residents also are gathering a grass-roots momentum. Between Friday, June 3, and Monday, June 6, a flurry of emails announced an opportune “Congress on Your Corner” meeting scheduled for 3:30 pm Monday at the Stop & Shop Supermarket on South Main Street. (See related story.)

Congressman Christopher Murphy met informally with residents. “It’s not surprising that he would want to hear all of the people’s concerns,” said one of HEAT’s cofounders, Ann Marie Mitchell. Hours before the meeting, the first selectman showed enthusiasm. “I am going, that’s for sure,” said Joe Borst. He intended to let Mr Murphy know, “We’re working to prevent [railroad transfer station expansions], absolutely. We’re opposed to it and we are working diligently to do something about it.” This week the Board of Selectmen moved to formally oppose the railroad’s plans.

The Applicant & Affiliates

The Housatonic Railroad Company Inc has subcontracted Newtown Transload LLC, which has, at least, proximate ties with Standard Demolition and Stamford Wrecking Company; the three business names share a mailing address at 30 Nutmeg Drive, Trumbull. As stated on the application, Newtown Transload is a “newly formed Connecticut limited liability company proposed to operate the railroad’s transfer facility.” Mr Rodriguez said, “We have hired them because they have people more knowledgeable about materials; they’ll handle materials.”

As explained on the application, the railroad has operated the terminal since 1995 and handled solid waste since 2004. The railroad is not subject to municipal regulations. As of the Clean Railroads Act of 2008, the act provides for new state oversight of certain aspects of Solid Waste Rail Transfer Facilities with respect to certain materials.

The text continues, “This application contemplates two phases of operation … Phase I consists of operating in a similar manner as it is operating today … minor enhancements are planned including some track realignment and minor changes to the existing building … Phase II consists of a new waste building and annex for indoor sorting and/or loading railcars. The application seeks approval for 2,000 tons per day for solid waste that will be processed through the existing and new building(s).

“In addition, bulk loading now occurs and will continue to occur … The loading process is subject to state regulations to the extent provided in the act … the application seeks approval without limitation to quantity.”

An estimated cost for the Phase II facility is $800,000. The source of funds for the facility is Newtown Transload LLC. The building to be constructed will have approximately 3,000 cubic yards of indoor storage. Phase II construction proposes a 100-foot by 100-foot building with a 30-foot ceiling. The building’s annex will be 25-feet by 25-feet.