The agreement was reached after railroad officials were summoned before the Newtown Wetlands Commission to answer the town's order. By the session's end, five of the six commissioners voted to uphold the cease-and-desist order and give the railroad until Sept. 9 to submit a completed application. Commissioner Ed Byron abstained.
"With respect to your cease-and-desist order, while we are requesting that it be withdrawn and we believe that it is outside your jurisdiction to order, we plan to voluntarily suspend all fill activities in that area, until it has been reviewed -- and hopefully we can make a decision together," Ed Rodriguez, the general counsel and vice president of the railroad, told commissioners.
Wetlands Commission Chairwoman Anne Peters, however, countered: "We have authority within 100 feet of wetlands and watercourses, so that means your activity would be subject to our jurisdiction."
The fill work is being done as part of the railroad's project to expand its trash transfer station.
Ann Astarita, the wetlands enforcement officer who issued the cease-and-desist order, said, as of Wednesday, fill was still being brought to the site. "As far as I can see, it consists of brick, cement, various pieces of metal and sand," she said.
Rodriguez admitted areas were filled, but said none of the fill went into wetlands. "It is true that some additional filling on our property occurred since (receiving the cease-and-desist order Aug. 13), but no filling of the wetlands occurred since that date," he said. Rodriguez said he was embarrassed about the mistake, which occurred because of a miscommunication with his contractor. "If additional work had not occurred on the property since that occurred, I don't think we'd be there tonight," Rodriguez said.
Furthermore, he only agreed to submit a permit application for the wetlands remediation if "we are not required to forfeit our legal position that we are not legally subject to the jurisdiction of the town."
"So you are reserving the right to not only appeal it, but to say we do not have jurisdiction and to subsequently ignore it?" Peters asked.
"I don't like your characterization of it, but essentially yes," Rodriguez said.
A few hours before the Wetlands Commission's hearing on the cease-and-desist order issued to the Housatonic Railroad Co. for failure to comply with a July 24 wetlands notice of violation, the state attorney general stepped in -- backing Newtown.
"Your non-compliance is a flagrant violation of state law and properly exercised municipal authority -- a violation I will not tolerate," Attorney General Richard Blumenthal wrote to the railroad.
"You must immediately comply with the law, or I will work with Newtown and the Department of Environmental Protection in taking prompt action in court to enforce the law."