Vermont Rail transload facility and salt shed in Shelburne, November 2016.VBM photo.
by CBHall Vermont Business Magazine The town of Shelburne is continuing its fight against the Vermont Railway's salt-transloading facility just north of Shelburne village, in the wake of a 3-2 vote by the selectboard, at its October 24 meeting, to pass a revised ordinance in effect prohibiting the salt sheds' operation. But that fight, now almost two years long, is meeting increasingly angry questions from frustrated citizens.
"I've lived here 57 years, and I love this town. I don't like what it's becoming," resident Dorothy Sawyer said as she addressed the 50 or so people in attendance.
The decision to double down on the ordinance, first passed August 8, took place as protracted litigation with the railroad continued. On June 28 Judge William Sessions of the US District Court in Burlington entered an opinion and order affirming his agreement with the railroad's position on the core issue in the case – which is that federal law preempts local and state permitting for the 33-acre facility.
On August 8, however, the board asserted its "police powers" over the sheds' operation by passing the ordinance, which regulates the storage of hazardous materials in the town. The measure made prominent mention of various salts used in deicing roads, among the other materials prohibited.
The ordinance was to have taken effect October 7, and would likely have provided a legal premise for shutting the Vermont Railway (VTR) facility down. In wake of the measure's enactment, however, the railroad fired back with a motion in the District Court seeking a preliminary injunction to prevent enforcement of the ordinance against the railroad.
According to the motion, the ordinance "appears specifically motivated and designed so as to prohibit the Railroad from continued operation of its Transload Facility."
The court issued a temporary restraining order – an emergency injunction issued to prevent immediate harm, in this case, to the railroad – and scheduled a hearing on the merits of the ordinance for November 1 and 2.
Since the August 8 version of the ordinance included language that might have inhibited, for example, salting a driveway, the town meanwhile began considering an amended version of the enactment.
The changes reflected in the amended ordinance passed October 24 do not however substantially affect the crux of the dispute: The inclusion of the salt sheds' operation within the enactment's purview.
In both its versions, the enactment prohibits the storing, within 250 meters of any school or waterway, of materials including sodium chloride and three other salts. The ordinance finds an echo in a statement on the town's Website, at the head of a list of documents on the litigation: "Large salt storage operations directly adjacent to the LaPlatte River and near Lake Champlain present environmental concerns."
The transload facility is directly adjacent to the LaPlatte.
Too much chloride?
In a presentation to the September 26 selectboard meeting, town attorney Claudine Safar strove to debunk the view taken by some that the ordinance constituted a sort of Plan B – a different means to the same ongoing end, thwarted by the court, of ridding the town of the VTR facility.
"The ordinance applies to everybody. This is not a specific target," she said, apparently meaning VTR.
Speaking from the floor at that meeting, resident and former selectboard member Toni Supple took exception to Safar's presentation.
"We're talking about the salt shed," she said. "Everyone knows what we're talking about here."
"I also think we need to look at our own Shelburne salt storage, whether we're in compliance with that," she added. "As I recall there were some environmental concerns with that."
The ordinance would ban the storage of more than 550 tons of the listed salts. That amount is slightly more than the approximate capacity of the town's own shed. A small brook that empties into Lake Champlain runs within as little as 90 feet of that structure.
Another former selectboard member, Chris Boyd, presented the September 26 meeting with a petition bearing the signatures of 189 citizens opposing the ordinance, but board chair Gary von Stange rejected the submission, since it was not presented within a statutory limit of 30 days from the original passage of the ordinance.
Noting that, "It is still the signatures of your constituents," Boyd explained that the petition was tardy because its backers had first tried unsuccessfully to convince selectboard members personally to rescind the measure.
The debate continued two weeks later, at the October 10 selectboard meeting, with the first reading of the ordinance's amended version. A growing undercurrent of frustration on both sides made itself felt.
"This board and the community have become so bifurcated that we move beyond logic and reason and we can't work together as a community," resident Kathy Brooks lamented.
Justifying the ordinance, von Stange called attention to tests conducted at the VTR property.
"There have been drilling on the site to measure the chloride level. And the chloride level has increased since this has gone forward from 5 mg per liter to over 600 mg per liter." The latter figure is about a 10th of a teaspoon.
Shelburne Town salt shed. CB Hall photo.
According to monitoring data obtained by VBM, the concentration in one of the five monitoring wells on the site spiked at 640 mg in one of the sampling tests, performed every three to four months. The monitoring wells serve as a canary-in-the-coal-mine function in keeping pollution out of the LaPlatte, which VTR also monitors; salt levels there have remained well within legal limits.
VHB, a South Burlington engineering firm, handles the monitoring work for the railroad. According to a statutorily required report submitted by the firm to the Vermont Department of Environmental Conservation (DEC) on October 16, steps including a curb in a crucial location had been instituted to remedy the problem.
"That's how it's supposed to work," Marc Heath, who is representing VTR in the dispute, said in a phone interview. "That's why you put those wells in."
"It appears as though they're complying" with environmental permitting requirements, DEC analyst Kevin Burke told VBM after reviewing the report briefly.
Asked if his agency and federal regulators were competent to monitor the situation, or whether municipal police powers would help enforcement, he said, "We're confident that we're able to oversee the permittee's compliance with an industrial stormwater discharge permit, the authority for which is delegated to us by [the federal Environmental Protection Agency]."
Budget exceeded
The disputation is costing plenty of money. The selectboard voted 4-1 on September 26 to employ two environmental consultants "to Assist with All Matters Relating to and Arising From the Ordinance," in the agenda's words. Inquiries with the town regarding the consultants' compensation did not receive an answer. Enforcement of the ordinance would be the job of the town's health officer and an enforcement officer yet to be hired; the latter official's compensation appears not to have come under discussion.
As of the end of August, the town had been billed $355,100 in legal expenses for the litigation, town finance director Peter Frankenburg said. The figure did not include consultants' and attorney's fees associated with the preparation of the ordinance.
Selden Houghton, vice president of the Vermont Rail System, Vermont Railway's parent company, put its legal bill to date at "over half a million."
The town's annual budget for all legal expenses was $32,000 for the fiscal year that ended September 30, and $30,000 for the preceding fiscal year, when the litigation began. For the current fiscal year, $60,000 has been budgeted.
Where the process will end is impossible to say.
At the October 10 meeting, resident Thomas Murphy asked, "If Judge Sessions rules that this ordinance cannot be applied to the Vermont Railway facility, will the selectboard appeal this decision, thereby spending more taxpayers' money on legal fees?"
"That's a litigation strategy question that I'm clearly not going to answer," von Stange responded.
Attorney-client privilege cited repeatedly
Board members Colleen Parker and John Kerr, as well as von Stange, did not respond to messages seeking comment for this article. Reached by phone, selectman Jerry Storey declined to comment.
In an interview prior to the October 24 board meeting, selectman Josh Dein said, "I feel reluctant to act in favor of something that still has so many outstanding questions."
Dein and Storey voted against the revised ordinance on October 24, while Kerr and Parker joined von Stange to pass the measure. Discussion prior to the vote testified to the increasing acrimony over the ordinance, the litigation, and related ethical issues.
Dein reported on correspondence he had had with town attorney Safar, beginning with his query as to when and by whom she had been instructed to draft the ordinance. Safar, Dein reported, had refused to answer, citing attorney-client privilege on the subject as well as other questions he had raised.
Dein asked wonderingly how he might be denied an answer on that basis, he being a selectboard member. Von Stange responded to the effect that Dein had recused himself from the litigation matter that overlaps the debate over the ordinance.
The phrase "attorney-client privilege" became almost a refrain as interchanges progressed between the board, especially von Stange, and those seeking a better understanding of the ordinance and its implications. A deterioration in trust was evident, as most comments from citizens expressed exasperation with a perceived lack of transparency, or simply with the town's persistence in fighting the railroad – at considerable expense.
But the subject of the debate, for now, remains only that – a cause for argument.
In an email, Safar stated that the town had agreed with the railroad not to enforce the ordinance, whether in its original or revised form, until the court rules on its enforceability.
"The salt shed is built," resident Carol Smith commented in a phone interview. "They have the right to build them. It's their property. We're fighting a fight that we can't win, and the judge keeps telling us that."
This article was updated 2:45 pm October 27, 2017.