Vermont Railway Inc. is asking a federal judge in Burlington to block the Shelburne town government from enforcing a new ordinance approved last month for regulating storage, handling and distribution of hazardous substances.
“The town hurriedly passed two new municipal ordinances” on Aug. 8 and now wants to effectively prohibit the railroad from storing road salt at the Shelburne storage and distribution facility, the company said in its request for a preliminary injunction.
The town “asserted without explanation in court papers filed the very next day” that it would begin enforcing the storage ban Oct. 7, court papers show.
Vermont Railway is asking for a speedy court hearing because “the railroad will suffer imminent and irreparable harm as of the date of the enforcement,” attorneys Marc Heath and Jennifer McDonald of the Downs Rachlin Martin law firm wrote in their 17-page motion.
After Shelburne rejected two requests to delay the effective date of Oct. 7, Vermont Railway is asking that a preliminary injunction request be heard on Sept. 19 when Senior Federal Judge William K. Sessions III meets with lawyers for a status conference on pending issues in the case.
The Shelburne Selectboard voted 3-2 to pass the ordinance Aug. 8 over the objections of some local residents and several major businesses, including Shelburne Limestone, Shelburne Shipyard and the Vermont Fuel Dealers Association.
Selectboard members Jerry Storey and Josh Dein said they were opposed to rushing the ordinance and said more time would allow the town to fine-tune the wording.
Selectboard members Gary von Stange, the chair, John Kerr, the vice chair, and Dr. Colleen Parker said changes could be made later.
Storey’s motion at the next selectboard meeting to adjust the agenda that night so members could discuss revising the wording of the ordinance failed on a 2-2 vote. Von Stange and Parker were against further conversation; Kerr was absent.
The new ordinance will allow the town to impose daily fines and issue “health orders” that could direct the railroad to remove the road salt, according to court papers.
The move by the selectboard also prohibits the temporary storage of other things, including home heating fuel. The railroad routinely hauls and stores heating fuel on its site.
The railroad argues in its filing that the ordinance will allow the town to interfere with the railroad operation — something prohibited by federal law.
Vermont Railway initially sued Shelburne and Joe Colangelo as town manager and zoning administrator in January 2016.
Colangelo could not be reached for comment Tuesday.
Town Attorney Claudine Safar said she was aware of the railroad’s injunction request and expects Shelburne will file a written objection to the motion because the town believes it is entitled to enforce the ordinance.
“We are going to oppose it,” Safar said.
She noted the town believes it has several points to support its position. She said Judge Sessions told the railroad it could build the rail facility, but might not be able to operate it in the manner it wished once the legal fight was resolved.
Safar said while the U.S. District Court has sided with the railroad on some issues, “we disagree with the court, but respect the decision.”
Safar said the town is still collecting comments from the public about possible changes in the ordinance that the selectboard could consider.
She said that there was “significant misunderstanding” about the ordinance at first and that have been cleared up somewhat after discussions with town officials.
The railway said in court papers that it asked the town five times between July 22, 2016, and July 7, 2017, to identify the specific ordinances it planned to enforce, but the town refused each time to elaborate.
The railroad has constructed two salt sheds for seasonal storage of 80,000 tons of road salt, but the new ordinance imposes a 550-ton storage limit. The facility is located north of Shelburne village west of U.S. Route 7 near the LaPlatte River.
The new 550-ton limit for road salt would allow the town to continue to store its own salt supply on the edge of the LaPlatte River and near a school, while blocking “the railroad’s professionally designed and fully engineered facility,” Heath and McDonald wrote in their motion for the railroad.
The Vermont Agency of Transportation, various municipalities, and others in the area depend on the road salt being delivered by train. Shelburne’s refusal to cooperate also presents a “significant public safety issue,” the railway noted.
“The nearly 80,000 tons of salt needed to ensure safe winter roads for our region cannot be readily moved or relocated,” the motion said. “The town is well aware that the railroad cannot comply with the town’s new storage ordinance’’ prior to Oct. 7, the day it goes into effect.
Vermont Railway claims that road salt is not considered a hazardous material under federal and state regulations, but the town wants to impose up to $10,000 a day in fines.
“Needless to say, the storage ordinance appears specifically motivated and designed so as to prohibit the railroad from continued operation of its transload facility and to further limit or restrict” railroad operations, the motion said.