Town appeals Railway decision

Foundations are being constructed at the Vermont Railway Intermodal site.
Foundations are being constructed at the Vermont Railway Intermodal site.

After the Federal Court decision in Town of Shelburne v. Vermont Railway, which ruled in favor of Vermont Railway, the town has decided to file an appeal. The interlocutory appeal was filed on the town’s behalf last week.

“As this case has not been resolved fully, Defendant only appeals the denial of its motion for preliminary injunction,” reads the appeal filed on July 28 by Monaghan, Safar & Ducham.

Town Manager Joe Colangelo said that the appeal is in the early stages. As such, there is not a lot of information that can be shared publicly. Most of that discussion is currently restricted to the realm of executive session. However, Colangelo stressed that filing the appeal helps to protect the town’s rights going forward.

“Contrary, maybe, to popular opinion, the town has accomplished quite a bit through litigation,” Colangelo said, echoing sentiments that had previously been expressed by Selectboard members during meetings. He also emphasized that the appeal costs very little, probably a few hundred dollars.

Peter Young, Vermont Railway deputy general counsel, said that the company is confident in its legal position as it faces the town’s appeal. The railway, he said, believes that Judge William K. Session III’s order was clear and well supported.

As the town’s appeal moves forward and plays out in court, there is another process playing out elsewhere. The railway has filed for a Multi-Sector General Permit (MSGP) with the Department of Environmental Conservation (DEC).

The MSGP is a permit that applies to industrial projects. The DEC site describes it as “a federally mandated National Pollutant Discharge Elimination System (NPDES) permit that covers new and existing discharges of stormwater from industrial facilities.” Vermont Railways’ transload facility project is not preempted from this requirement. The company has expressed confidence as it moves forward in the process.

The MSGP application is before the DEC. Vermont Railway had filed a Notice of Intent (NOI) for Stormwater Discharges Associated with Industrial Activity under the Vermont MSGP on July 8.

“We’re confident that our professionally-designed facility will meet all requirements,” Young said. He added that the railway looks forward to meeting the needs of the region this winter.

The period for public comment has been extended by the DEC from 10 days to 30. People are encouraged to weigh in.

“The town certainly is going to be participating in that public hearing process on some level,” Colangelo said. He could not say what level of involvement that might entail, however.

With this, as well as all other projects, there will be a high level of scrutiny from the town when it comes to the MSGP permit. This comes out of new pressures being applied to municipalities regarding Total Maximum Daily Load (TMDL). Colangelo said that the railway project is certainly not alone in being put under intense scrutiny.

“[With] this project, or any other project, we will be looking really closely at all stormwater permits,” Colangelo said. He noted that this is a “new era of scrutiny with these permits.”

2 Responses to "Town appeals Railway decision"

  1. Chalmers Hardenbergh   August 4, 2016 at 4:17 pm

    Mr Colangelo is kidding himself about the cost of the appeal – or is misinformed by his attorneys, unless they work for free. Merely filing the appeal requires paying his lawyers to draft and file the notice, and requires paying a fee of $500. That would keep the option open to actually pursuing the appeal.

    If the appeal goes forward, he may assume costs of about $10,000.

  2. Lisa Espenshade   August 12, 2016 at 11:56 am

    So glad our town remains steadfast in challenging this terrible project every step of the way. From what I understand and have read about the ruling, we gained important ground, in spite of the federal “preemption” card that allows railroads (but not trucking operations!) to play by different rules than any other business in Vermont. Local, civic action and environmental protection is usually not glamorous, and never without costs of time and resources. Thank you for working so hard to protect Shelburne and…please…stay strong.


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