Judge: Federal preemption may not cover all aspects of Shelburne salt shed

Shelburne Rail

Vermont Rail Systems plans to build a new road salt storage facility on the property across the tracks. Photo by Morgan True / VTDigger

BURLINGTON — A federal judge agreed Monday to hear further argument on an injunction sought by the town of Shelburne to block construction of a rail spur and salt storage facility planned for a parcel on the LaPlatte River.

Vermont Rail Systems has encountered stiff resistance from the town and residents who say the facility would damage the environment and could create an unsafe intersection where salt trucks would enter Route 7.

The new facility would replace a smaller salt storage area in Burlington, which the railroad said is too small to meet regional demand for road salt. It’s expected to include two salt storage sheds, a fueling station, an access road, offices and parking.

The old Burlington facility is slated to host a second City Market location.

Shelburne officials say the railroad should be required to obtain local zoning permits for the project and undergo the state’s Act 250 environmental review process. The railroad says those regulations are preempted by federal law, which places authority over railroads under the federal Surface Transportation Board.

After the railroad cleared 19 acres of the 32-acre parcel in January, the town sued to prevent further work from being done on the site.

Judge William Sessions said that even if federal preemption applies broadly to the rail spur and storage facility project, there may be exceptions to what’s preempted, especially if there are project elements that aren’t part of railroad operations.

There is significant disagreement about the underlying facts in the case, Sessions said, adding that legal filings from the the two sides show they are on “different planets” when it comes to the project.

Sessions called for a period of discovery, or information sharing between the two sides, before a full evidentiary hearing takes place in late-April or early May.

Following that hearing, Sessions said he would issue a ruling as to whether, and to what extent, federal preemption applies to the project and whether to grant Shelburne injunctive relief that would halt construction.

Claudine Safar, Shelburne’s attorney, told Sessions the town wants to know the extent of preconstruction activities, which will likely involve a site visit, and will seek more information on the anticipated traffic from the facility.

The town also wants to know what other possible commercial or industrial uses of the facility may be planned, and to what extent the facility is being built for the benefit of Barrett Trucking, the railroad’s distribution partner, Safar said.

Vermont Rail System’s attorney, Eric Poelhmann, said VRS has tried to be forthcoming about the project, having gone before the selectboard at its public meetings on four separate occasions and meeting with its members in a closed-door executive session.

The company believes it would violate federal law to publicly release some of the information the town is seeking. They offered to share that information with town officials provided they sign a confidentiality agreement. The town and selectboard did not sign that agreement.

In a Feb. 17 email exchange posted to the town’s website, Town Manager Joe Colangelo asked Vermont Rail System’s CEO David Wulfson how much money he would want for the land where the railroad plans to put the facility, noting the town’s interest in buying it.

Wulfson responds that his company has no interest in selling the property or relocating. To accommodate the town’s request that his company look at alternative locations, they identified one possible alternative.

That site spans three contiguous properties in South Burlington that would cost more than $6 million to purchase from the current owner, according to Wulfson. Wulfson said he would consider the moving the facility there, provided the town cover the cost.

To do that, the town would need to act quickly, because the facility needs to be operational by the end of August, in order for the railroad to start stockpiling salt for the coming winter, Wulfson said.

In addition to the $6 million to buy the other properties, the town would have to pay for engineering work and permit costs, the demolition of existing buildings and “legal fees VRS might incur in the event there is opposition to our proposed use of the site,” Wulfson writes.

Meanwhile, the state Department of Environmental Conservation issued a stormwater construction permit, allowing work to continue on the site. DEC is responsible for conducting stormwater review on behalf of the federal Environmental Protection Agency. VRS will need a second stormwater permit to cover runoff from operating the facility.

The railroad said it will continue prepare the site for construction, but will allow town officials to review their final plan before it starts building.

In a Feb. 24 letter to the town informing them of DEC’s decision, Wulfson said his company has heard the concerns of residents and will consider increasing the distance between the salt sheds and the river or lands owned by the Nature Conservancy.

That’s unlikely to appease town officials, who say they will continue to fight the project’s arrival in court.

Morgan True

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