Hawleyville Road—

Wetlands Permit Again Sought For Railroad Site

By Andrew Gorosko

The Housatonic Railroad Company, Inc, this week filed an application for a wetlands protection permit, which the firm is seeking in connection with its controversial proposal to expand its solid waste handling operations at 13.3-acre property at 30 Hawleyville Road (Route 25).

In February, Inland Wetlands Commission (IWC) members unanimously rejected a wetlands permit application for the site that had been sought by Newtown Transload, LLC, a firm that would work as a contractor for the railroad on the expanded waste-handling operations.

The railroad’s new application for a wetlands permit comes one week after Newtown Transload filed a legal appeal against the IWC, in seeking to have a Danbury Superior Court judge order the IWC to issue it a wetlands permit. That lawsuit is pending in court. The IWC has an April 20 court return date.

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.

Rob Sibley, town deputy director of planning and land use, said March 25 that the IWC received the wetlands application from the railroad at its March 24 session.

“It seems to be fairly sparse, right now,” Mr Sibley said of the basic information provided by the railroad. He said he expects the firm will provide much more technical detail to the IWC for the application.

IWC members decided to hold an April 28 public hearing on the wetlands application, he said.

Based on the submission of the second wetlands application, Mr Sibley said the railroad appears to be addressing the environmental issues raised by the IWC last summer when it gave the railroad a notice of wetlands violation for its earthen filling activities on the northern end of the railroad site.

When the IWC rejected Newtown Transload’s wetlands permit application in February, IWC members unanimously decided that the earthen filling work that had already been performed at the site 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.

In a March 24 letter to the IWC, Edward Rodriguez, the railroad’s general counsel, writes that the IWC and the railroad “share a common goal of protecting valuable wetlands resources, and the railroad desires to work with the [IWC] to accomplish that goal.”

Mr Rodriguez writes that the railroad expects to resolve pending issues with the IWC. But, he adds, that the railroad does have some questions about the IWC’s legal jurisdiction in addressing the pending wetlands protection issues.

According to application submitted by the railroad, the amount of land area that would be altered under the terms of a wetlands permit would be approximately three acres. The total amount of earthen material that would be removed or deposited at the site is “to be determined,” according to the documents.

Work on the site that would require a wetlands permit would involve the extension of railroad track and the removal of certain earthen fill, it states.

The listed purpose of the proposed activity is “to enhance the handling efficiency and storage capacity for building materials and to increase the terminal’s overall operational efficiency.” Besides solid waste handling, the railroad stores various building materials at its Hawleyville rail terminal.

Technical Details

The earlier wetlands application submitted by Newtown Transload was highly detailed involving voluminous technical data. The IWC conducted a multipart public hearing on that application which started last October and concluded in January.

Mr Rodriguez said last week that through the new wetlands application, the railroad is seeking to address the various environmental concerns raised by the IWC. Additional technical information will be submitted to the IWC, he said.

Of the railroad’s proposal to expand its solid waste handling, which is now pending before the state Department of Environmental (DEP), Mr Rodriguez said, “It’s a complex application.”

Mr Rodriguez said he expects the DEP to issue the railroad a technical review letter that will request more details on the specifics on the solid waste handling project.

Robert Isner, DEP’s director of waste engineering and enforcement, said this week that DEP is still processing the railroad’s application to expand solid waste handling at the railroad terminal.

DEP officials will evaluate whether the second wetlands permit application to the IWC would affect the DEP’s review of the waste expansion proposal, Mr Isner said.

After obtaining more technical information on the waste proposal from the applicant, the DEP would later issue a “tentative determination” on the application, Mr Isner said. That would amount to a preliminary decision on whether DEP technical staff supports or opposes plans for expanded waste handing. That preliminary decision likely would be issued “sometime this summer,” he said.

If the DEP receives a petition bearing the names of at least 25 people, it would later hold a public hearing on the proposed waste expansion project.

Based on the wide public interest in the railroad’s waste expansion proposal, Mr Isner said he expects that a public hearing would be held.

Last July, the IWC notified the railroad that the town wetlands regulations had been violated because earthen filling work was underway in an area on the railroad site 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.