Railroad Contractor

Appeals Permit Rejection

By Andrew Gorosko

A contractor for the Housatonic Railroad Company has filed a court appeal against the Inland Wetlands Commission (IWC) in seeking to have a judge overturn the IWC’s recent rejection of a wetlands permit sought by the contractor for some controversial earthen filling which had occurred on the northern section of the railroad’s 13.3-acre property at 30 Hawleyville Road (Route 25).

In legal papers filed this week in Danbury Superior Court, Newtown Transload, LLC, appeals the IWC’s February 24 rejection of the firm’s wetlands permit application. The IWC has an April 20 court return date.

Town Attorney David Grogins said March 18, “We’re reviewing it. I really don’t have any comment on it (court appeal) yet.”

The earthen filling is part of the railroad’s controversial proposal to expand its solid waste handling operations at its property. That waste handling application is pending before the state Department of Environmental Protection (DEP).

Through the court appeal, the plaintiff seeks to have a judge order the IWC to issue a wetlands permit to Newtown Transload “with reasonable conditions,” so that the wetlands permit rejection does not constitute an unconstitutional taking of property without compensation.

On February 24, IWC members unanimously decided that the earthen filling work which had already been performed would have significant adverse effects on wetlands on the railroad property, and also on wetlands on adjacent property. Also, IWC members decided that the applicant had not submitted for review alternative environmental protection plans which would cause fewer adverse effects, or no adverse effects, on the wetlands. Additionally, in a procedural matter, the IWC decided that the applicant had not submitted some required paperwork to the IWC concerning abutting property owners being notified of the earthen filling plans.

In the court appeal, Newtown Transload lists four counts against the IWC.

Those counts concern the IWC’s interpretation of applicable wetlands protection law and three alleged violations of the state constitution, concerning due process of the law, equal protection under the law, and the taking of property without just compensation.

Newtown Transload states that it sought a wetlands permit for activity which “included minor disturbance to inland wetlands and grading within upland review areas.” 

During the course of a public hearing on the application, which started on October 14, 2009, and concluded on January 13, 2010, “Newtown Transload, LLC, modified the application to eliminate any proposed disturbance to inland wetlands or watercourses,” the appeal states.

Through its denial of the wetlands permit, the IWC “exceeded its statutory authority and acted illegally, arbitrarily, and in abuse of the discretion vested in it,” according to the legal papers.

The legal record of the public hearing does not contain substantial evidence showing that the wetlands permit application fails to meet applicable requirements, it states.

“The regulated activities proposed in the inland wetlands and watercourses permit application…are not reasonably likely to adversely affect inland wetlands and watercourses,” it states.

Additionally, the plaintiff claims that the IWC did not conduct a fair hearing on the application because the IWC did not allow the applicant to challenge the testimony and documentary evidence provided by an expert upon which the IWC based its decision to deny the application. Also, Newtown Transload challenges the IWC’s decision not to allow it to cross-examine or question that expert at the hearing.

Also, the plaintiff charges that the IWC considered evidence submitted after the public hearing which was damaging to the application and on which Newtown Transload was not able to comment.

Newtown Transload also claims that the post-hearing notice of the IWC’s decision is legally defective.

In the legal papers, Newtown Transload states that it leases land from the railroad which was the subject of the IWC’s decision, adding that the IWC’s action will have “an adverse effect upon its property and operations.”

“As a result of the…unlawful actions by the defendant commission, the plaintiff has suffered damages including significant economic loss. The defendant commission’s proceedings were fundamentally unfair and deprived the plaintiff of due process of law,” the legal claim states.

Newtown Transload alleges that the IWC “singled out the plaintiff for unfair and illegal treatment (and) intentionally, improperly, and in bad faith treated the plaintiff differently than other similarly situated persons and with no rational basis for the different treatment.”

“The plaintiff will be deprived by the defendant commission of any and all reasonable use of the property at 30 Hawleyville Road without just compensation” in violation of the state constitution, the lawsuit states.

Newtown Transload would work as a contractor for the railroad as part of the railroad’s proposal to the DEP to expand its solid waste handling operations.

Last July, the IWC notified the railroad that the wetlands regulations had been violated because earthen filling work was underway in an area regulated by the IWC, without the IWC’s prior approval for such work.

In August, the IWC issued a cease-and-desist order to stop that filling. The work then stopped and Newtown Transload submitted a wetlands application through which it sought to correct the violation.

Extensive earthen filling occurred on the northern section of the railroad property where a spur of track would be built in connection with the railroad’s proposal to expand its solid waste handling operations. The railroad proposes significantly increasing the tonnage and also expanding the range of solid waste that it transfers 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 be subject to regulation by the 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.

The town government and the Hawleyville Environmental Advocacy Team (HEAT), an ad hoc citizens group, have opposed the railroad’s expanded waste handling proposal.

Town government opposition and the citizens group’s opposition focuses on issues, including the potential for surface water pollution and groundwater pollution due to expanded waste operations. Other issues include quality-of-life matters, such as increased truck traffic, increased noise, and additional blowing dust in the area.