Wetlands Hearing On HRR Plan Draws A Crowd

By Andrew Gorosko

About 50 residents attended an October 14 Inland Wetlands Commission (IWC) public hearing held to review a wetlands regulation violation that allegedly occurred as part of the Housatonic Railroad Company’s controversial proposal to expand its solid waste handling operation at its Hawleyville rail terminal at 30 Hawleyville Road.

Although the railroad is following the procedures required by the town to address such wetlands violations, it has reserved the right to legally challenge the town’s jurisdiction to regulate it concerning wetlands activity.

In the Clean Railroads Act of 2008, Congress granted the state Department of Environmental Protection (DEP) the right to regulate the health and safety aspects of railroads’ waste handling activities. By extension, because the state grants municipalities the right to regulate wetlands, the town is overseeing the railroad’s activities as they affect wetlands quality. Previously, only the federal government regulated railroads.

Residents at the public hearing learned that the town has issued the railroad a second “notice of violation.” This violation concerns the railroad’s earthen clearing and filling activity as it pertains to the abutting Winkler property at 149 Currituck Road.

In July, the town had informed the railroad that other activities at its 13.3-acre site violated the wetland regulations. It was that violation that later triggered a cease-and-desist order from the town to the railroad and a legal warning from the state attorney general to the railroad that resulted in the October 14 hearing on the initial wetlands violation.

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.

At the October 14 session, IWC Chairman Anne Peters told residents that the IWC’s review of railroad activities is strictly limited in scope, pertaining only to the issues related to the protection of wetlands and watercourses. Others issues, such as traffic and noise, are matters that should be brought to DEP’s attention, she said.

If the IWC were to consider such issues, its decisions on applications would be legally weakened, she said. Consequently, the railroad could then seek a legal remedy from the US Surface Transportation Board, which regulates railroads, she said.

The applicant for the wetlands permit is Newtown Transload, LLC, the firm which would perform the waste handling at the railroad site.

Colin Pease, the railroad’s vice president for special projects, explained that the railroad wants to expand its waste handing to earn money. “We have to grow,” he said. Railroads are always competing with the trucking industry for such profit opportunities, he said.

Mr Pease acknowledged that matters become difficult when neighboring residents do not consider a railroad’s activities to be compatible with their neighborhood.

The town government’s opposition and local citizens’ opposition the railroad’s waste expansion proposal has focused on the possible adverse environmental effects of the project, especially the potential for groundwater contamination in the area.

Mr Pease stressed that the railroad wants to cooperate with people concerned about the waste expansion project.

IWC member Dr Philip Kotch questioned the accuracy of technical drawings submitted by the railroad that describe the waste expansion project.

“It’s very difficult to understand this map, frankly,” Dr Kotch told Bill Walters, a civil engineer representing the railroad. The railroad eventually wants to construct a 900-foot-long double track extension on its site as part of the waste-handling expansion project.

The plans must be revised to better depict the activities that are planned for the site, Dr Kotch said.

IWC member Katja Pieragostini noted that the earthen fill that the railroad has placed on its site is so fine that it creates breathing difficulties for people. She also noted that the fill contains metal fragments.

Ms Pieragostii urged the railroad to place reference markers on its site to help IWC members better understand its plans for the property.

Ms Peters observed that the site where the railroad has done earthen filling is adjacent to environmentally sensitive wetlands. “It’s very clear that it’s abutted on the east by wetlands and watercourses that could be adversely affected” by activities on the railroad site, she said.

Physical barriers would need to be created to protect the wetlands from debris that blows across the railroad site, she said.

Soil scientist Kenneth C. Stevens, Jr, representing the railroad, said that wetlands on the railroad site have potential as a breeding area for amphibians, but added that he has not yet been able to substantiate whether the area holds a vernal pool.

Dr Kotch asked what impact the railroad’s proposed waste handling might have on wetlands if such waste were to spill into the wetlands.

Ms Peters asked whether any wetlands on the railroad site have been recently filled and, if so, where those wetlands were located on the site. Such filling may require the railroad to provide the IWC with a “mitigation plan,” she said.

Land use agency staff members asked the railroad to provide the town with added technical information on its project as it affects wetlands.

Public Comment

Attorney Keith Ainsworth, representing Catherine and Howard Winkler of 149 Currituck Road, filed an intervention application with the IWC, seeking legal status for the couple as a third party to the railroad’s wetlands application.

Mr Ainsworth said that railroad activity has resulted in some earthen fill being deposited on the adjacent Winkler property. “They’ve shown a proclivity to violate,” Mr Ainsworth said of the railroad.

Based on a soil scientist’s report, the railroad has significantly damaged a wetland, Mr Ainsworth said. The couple has hired a soil scientist to investigate the situation.

First Selectman Joe Borst said, “I’m very concerned about this application…I want a close watch on this whole application.”

Some of the material that exists in the earthen fill on the railroad site does not belong in that fill, Mr Borst said.

Mr Borst said he wants people who live near the railroad site to allow the town test their water to check for possible contamination.

“I think we have to be very, very careful about that water,” he said. People living in that area use water which is drawn from individual wells.

“We don’t need this kind of [waste handling] operation in Newtown, Mr Borst said, adding that such truck-to-rail waste transfer facilities exist in Danbury.

Ross Carley of 66 Currituck Road, a member of the Lake Lillinonah Authority, suggested that the IWC require continuous water testing in the area near the railroad site. Mr Carley said that surface water that flows way from the railroad site drains into Pond Brook, which empties into Lake Lillinonah.

James Ruopp of 46 Hawleyville Road said he is alarmed by the size of the railroad’s waste handling proposal. Mr Ruopp said he expects that wetlands have been filled in by the railroad.

“It’s a very sensitive area,” he said, adding that he is concerned about the effects that the railroad’s activities would have on the area.

Ms Peters said that the public haring on the wetlands aspect of the railroad’s waste handling expansion proposal would continue on October 28.