SHELBURNE >> Vermont Railway and Barrett Trucking collaborated to structure a deal for a shared road salt transfer facility in a way that would shield the project from state and local regulations, according to court documents and a judge.
The planned facility has drawn heated criticism from officials and residents in Shelburne who fear it could harm the nearby LaPlatte River. They're also concerned salt trucks could pose a danger where they would enter Route 7.
The town and Vermont Railway, a subsidiary of Vermont Rail System, are in a legal battle over whether local zoning and state environmental regulations should apply to the facility's construction or are pre-empted by federal laws that place regulatory authority over railroads with the Surface Transportation Board.
Barrett Trucking doesn't have the same option of claiming exemption.
Attorneys for the partners in the project make no bones about the collaboration, stating in a court filing that, "From the early days of this project, in late Spring/early Summer 2015, the Railroad and Barrett worked closely together to solve commercial, logistical, and legal problems."
They go on to say that Joe Barrett, one of the firm's owners, made clear in a deposition that "Barrett and the Railroad had a common understanding that the transaction and the project had to be structured so as to fall within the scope of ICCTA preemption."
ICCTA is the Interstate Commerce Commission Termination Act, the federal law that created the Surface Transportation Board.
Indeed, Judge William Sessions said at a court hearing Wednesday that it was clear Barrett Trucking and Vermont Railway worked closely together "so the town would be unable to stop it," according to a Burlington Free Press report.
Sessions said, nonetheless, he made no value judgment about the two companies' cooperation, according to the Free Press. Sessions did not return a call Thursday requesting comment.
Vermont Railway owner David Wulfson has said that although the project should not be subject to local and state review, it will get environmental review at the federal level. Some federal oversight functions are delegated to Vermont's environmental protection regulators.
Vermont Railway has already cleared the project site in Shelburne and begun preparing for construction, which it plans to start in late spring.
Shelburne's attorney, Claudine Safar, argues that the salt storage facility is largely a Barrett Trucking project, noting the company has contributed $370,000 to the project so far, some of which paid for engineering and environmental studies, according to the Free Press. Safar also did not return a call Thursday requesting comment. Her firm said Safar would be in depositions all day.
Wednesday's hearing was held on Shelburne's motion to compel Barrett Trucking to comply with subpoenas for contracts, agreements and correspondence relating to the Shelburne property or the proposed salt facility.
Safar also sought to have the owners of Barrett Trucking held in contempt of court for not producing the records in their entirety. Safar writes in her motion that the Barrett attorney, Carl Lisman, told her many of those records, in the form of emails, were deleted and would be costly to recover.
Safar, who sought 10 years of records in her subpoenas, writes that Barrett Trucking and its attorney provided no emails from before February.
Attorneys for Barrett and the railroad asserted that the documents being withheld are covered by attorney-client privilege. Sessions denied Safar's motions at Wednesday's hearing.
The case is scheduled for three days of hearings starting Tuesday, after which Sessions is expected to rule on the extent to which federal pre-emption applies to the proposed facility.
Meanwhile, Shelburne residents and a group called Vermont United, which works to inform the public about the potential environmental and safety risks of industrial rail operations, plan to hold a march and rally Sunday calling for construction of the facility to be halted.
Vermont Railway and Barrett Trucking already have a shared salt transfer facility on Flynn Avenue in Burlington. Barrett has a purchase and sale agreement with City Market, which plans to break ground on a second co-op grocery store there in June.