Charlestown may get new ordinance to regulate quarries, mining

Planning Commission meets Wednesday (Jan. 22) to work on final version

By Will Collette

Banned in Charlestown under the draft ordinance

Progressive Charlestown readers know I rarely have anything good to say about our Planning Commission under the leadership of Planning Commissar Ruth Platner of the CCA Party. But that may be about to change after their upcoming meeting on Wednesday (Jan 22, 7 PM at Town Hall).

They will work on the details of a town ordinance to finally regulate mining and mineral extraction, a largely unregulated industry in town, in response to the outcry over the bad behavior of Connecticut-based Copar Quarries and their notorious site on the Westerly-Charlestown line in Bradford.

Unfortunately, this ordinance will have no effect on the Bradford site since it is out of the ordinance's reach, being just over the town line. It will have a long-term effect on Copar’s other site, this one directly in Charlestown right off Route 91 on the banks of the Pawcatuck River. It will also affect every other quarry and sand & gravel pit in Charlestown.

Nonetheless, there is a lot of very good stuff in this ordinance and, with a few practical tweaks drawing on 35 years of legal history over the regulation of coal mining, this ordinance could become a model for other communities or for state legislation which Rep. Donna Walsh intends to introduce in the General Assembly.

I have reviewed the draft of new Ordinance #362 which amends the “Nuisance” section of Charlestown’s Code of Ordinances to address “extraction operations.” The term extraction operations applies to removing any “earth material,” but especially granite, rock, sand and loam. 

Charlestown's definition of "extraction operations" does not include removing rock or soil incidental to  construction. That might exempt Copar's operation in Richmond, should Richmond decide to enact an ordinance like this since, technically, Copar is doing site prep for Richmond Commons, even though it seems unlikely Richmond Commons would ever get built. But that's not Charlestown's issue.

First, the Ordinance #362 makes the current moratorium on new “extraction operations” permanent. With new sites banned, the primary focus of this ordinance is on existing operations that wish to continue mining in Charlestown:

 §155-26. Applicability.

New extractive industries are a prohibited use in the Town of Charlestown per §218-38.B.15 of the Town of Charlestown Zoning Ordinance. Any extraction operation operating legally in the Town prior to the effective date of this prohibition nonetheless shall be subject to the requirements of this ordinance.

It’s pretty clear the Planning Commission paid close attention to all the problems Copar has caused for its neighbors through the use of large amounts of high explosives to blast granite out of the Bradford site. Copar is also blasting at its Charlestown site (formerly owned by Morrone Sand & Gravel) and even drew a notice of violation from the Mine Safety and Health Administration below).

Under Ordinance #662, mine site blasting will become illegal:

§155-27….No part of an extraction operation shall include blasting of ledge or any other use of explosive material.

All “extraction operations,” including those currently operating legally in Charlestown must get a town permit to continue, meeting detailed terms and conditions, and environmental standards.

All of these elements of Ordinance #362 will substantially curb “extraction operations” in Charlestown, and that’s a good thing if you are a neighbor to minable land or a bad thing if you own or work at a mining operation.

Operators will probably complain that this ordinance will drive them out of business, which is true if they are unable or unwilling to comply.

We’ve heard those types of complaints before. When Congress was debating the Surface Mining Control and Reclamation Act of 1977 (SMCRA), the coal industry argued SMCRA would put them out of business, which of course never happened.

SMCRA was largely written by people living in coal-mining communities and their advocates. It is a unique approach to regulating. Usually, laws are written by the lawyers and lobbyists for the regulated industry, but SMCRA was largely written by the people the law was supposed to protect.

I was hired in 1990 as staff director for the Citizens Coal Council, then based in Washington. My sole job was to aid those local coal-mining communities in their on-going struggle to get SMCRA to be properly enforced. After all, laws are only as good as the way they are used.

I spent 10 years doing that, travelling the coal fields from Pennsylvania down through the Appalachians into Alabama, then up through the Midwest and then out west to the Navajo Nation and the Northern Plains through Montana. I saw, heard and experienced mining in all its forms, and saw what it can do to local communities. I saw too many of those same things happening to the neighbors of Copar.

Charlestown is doing good to learn from the sacrifices of the people fighting the Copar Quarry. 

Though Copar’s neighbors will not get any direct benefit from this ordinance, I am optimistic that they will draw some important, indirect benefits, particularly if Charlestown’s work can influence Westerly to amend its new quarrying ordinance to mesh better with Charlestown (unless Westerly is still pissed over Town Council Boss Tom Gentz's intemperate conduct).

Room for improvement: “Temporary” permits

Even though I applaud the overall principles in Ordinance #362, and most of the practical applications it prescribes, the Ordinance needs some more work before it is ready to go the Town Council for a public hearing and enactment.

First, there’s the process laid out in the Ordinance for how an existing operation gets licensed. Since new extraction operations are effectively banned under §155-26, this section becomes critically important. 

I like the idea that every operator must now get a license – I don’t like how the ordinance allows as much as two years before they must get a full license.

Section 155-29 requires all existing operations to apply for a “temporary” license. They have up to three months to file that application. Upon receipt, Zoning Official Joe Warner has up to three months to issue the “temporary license.” Then, the operator can continue operating for up to 18 months under this “temporary license” before having to fill a full application. That’s a total of up to 24 months – two years! And two years can be a lifetime in the mining industry.

The ordinance is not clear – but should be – on the question of whether the “temporary license” allows the operator to continue doing business as usual and not abide by the no-blasting rule or any of the environmental standards or restoration requirements attached to a permanent license.

While some reasonable transition period is needed, two years is, in my opinion, too damned long. I recommend cutting the entire process down to six months – inform the operators they have thirty days to apply, allow another 30 days for Joe to issue the temporary permit, and then give the operators four months to submit a full application for a permanent license.

However, if a “temporary” permit holder is indeed held responsible to obey all the environmental standards and restoration duties, then a longer time period for the permitting process could be allowed with no harm to health or the environment. But Ordinance #362 must be clarified to specify when an operator must comply with all the standards.

Environmental standards: in pretty good shape except for one thing

Copar's Charlestown site right off Route 91. See how close it is to the
banks of the Pawcatuck River.

Ordinance #362 seems to reflect another lesson learned from Copar, where in §155-32 there are requirements for clearly and precisely defining the mining boundaries. Generally, the environmental standards detailed in §155-33 are very good.

There is an inconsistency between §155-33.f. that deals with the “surety” or bond to guarantee the environmental standards are met and a similar section in §155-34 that immediately follows.

Here’s how §§f sets out the duty of an operator to post surety bond to cover the cost of restoring the land.

f. Surety. Any Entity issued a full extraction license by the Town Council shall be required to post surety in the amount set by the Town Council as a condition of the license issuance. Surety may be in the form of cash, letter or credit or commercial grade performance bond. The surety shall be set by the Town Council with the assistance of a qualified professional in an amount sufficient to cover the cost of restoration, including materials and procedures, for the areas of the parcel previously mined but not restored, areas currently being mined, and areas identified for expansion for the duration of the license period.

Charlestown: right off Narrow Lane

This section is fine – it requires the operator to give Charlestown the surety bond before they get a license to mine. 

But when you read “§155-34. Regulations for Closure,” the bonding requirement changes so that the operator does not have to post the surety until much, much later, near the end of the mine’s life. That’s a contradiction that ought to be resolved in favor of the language in §155-33.f.

That whole section on restoring or reclaiming the mine has some problems, bonding being one of them. Suffice to say that the final ordinance language should require surety to be posted before any permit to mine is issued as it says in §155-33.f.

Room for improvement: Reclamation, or “Restoration Plan.”

It’s a picky thing, but the mining term of art for restoring the land to its former or better state is called “reclamation,” but the Planning Commission’s use of “Restoration” is clear enough.

Charlestown - right on Route One (though screened by trees) and
next to Ninigret

Once again, the environmental standards for restoration seem fine to me, certainly close to or at “best practices.” But this section has two significant policy flaws.

The first is that the operator is not required to submit a restoration plan until nine months prior to the date when mining is going to stop.

Bad mistake! The federal SMCRA statute requires mine operators to submit and win approval of their reclamation plan before they can even get a permit to mine. Waiting for the operator to diligently submit a restoration plan nine months before closure is a naïve way to look at the rough-and-tumble mining industry.

Operators disappear from mining operations all the time. One of their favorite tricks is to get out before being held accountable for reclamation.

Based on the 35 years of experience the country has had with SMCRA (SMCRA Sec 780.18), it’s important for Ordinance #362 to require the Restoration Plan to be part of the permit application.

If the operator doesn’t know enough about the land at permit application time to craft a restoration plan, then the operator doesn’t know enough about the land to write an operating plan either. If an operator needs to amend that plan later for whatever reason, there’s a process for that. But make the reclamation plan legally binding by incorporating it into the permit process.

Second – there’s the conflict with the language about bonding between §155-33 and §155-34. The Planning Commission should make sure the Town receives all bonds prior issuing an operating permit. One of the worst things about all mining is the way it leaves the land – without having the bond in hand to restore the land, Charlestown could end up stuck with another dangerous hole in the ground.

Federal SMCRA (SMCRA Sec. 800.11) requires the operator to file the reclamation surety AFTER the application has been approved but BEFORE the operating permit is actually issued. The feds learned the hard way that unless you get the reclamation plan – and more importantly, the reclamation bond – up front, you may never get it.

That means more abandoned quarries, as if we didn’t already have enough of them dotting the landscape. Old quarries are dangerous. Charlestown already has an ordinance forbidding swimming in quarries because of the significant risk of drowning.

In 1998, I did a report for the Citizens Coal Council on the dangers of abandoned mines – coal mines, quarries, etc. Even using the rudimentary capacity of the internet at that time, I found more than 424 fatalities at old mines – accidents, drowning, cave-ins even at strip mines when highwalls collapsed, kids dying when they rode their ATVs off the top of pits, etc. It took me months to do that report.

Today, I Googled up “deaths in abandoned mines” and got Geology.com’s estimate that 20 to 30 people die in old mines and quarries every year. 60% of the fatalities occur between the ages of 11 and 30.

Huge Omission: Bad Actor “Permit Block”

I looked but was disappointed not to see one of the most important requirements for effective regulation of mining – the “permit block” that prohibits issuing permits to companies and individuals with bad track records. (For more on the “permit block,” click here and read page 63 et seq. for good language on how to craft a permit block rule).

If Charlestown had a “bad actor” ordinance, it would not have issued the permit it gave Copar Quarries to operate the former Morrone site on Route 91.

Extract from Copar CEO's arrest report, one of many. Click here to read the court report for Cocopard's 2013 conviction for larceny for which he is currently under an 19-month suspended sentence.  So why is the "permit block" missing from the draft Charlestown mining ordinance?

The bad actor Permit Block is a central feature in SMCRA with a whole chapter (click here) of statutory language devoted to what it requires permit applicants to disclose and the legal standards applicants must meet. I am amazed this was left out of the Charlestown Ordinance.

Phil Armetta - financial backer of Copar and another good
example for the need for a permit block provision in
Charlestown's ordinance. (Photo by Stephen DeVoto,
by permission, Middletown Eye)

Mining, regardless of the material, is a rough business. Mining companies themselves are fluid concepts – operators change company names as often as their underwear. Just think about all the different business names Copar CEO Sam Cocopard has used over the years.

For that reason, federal law requires operators to list not only their present business on their application, but also the names of all the principals in the company (executives, investors - like Copar's Phil Armetta) and all the names of prior businesses they have had.

A mine permit applicant can be “permit-blocked” for any of a number of reasons. Among the most common are failing to reclaim prior mining operators, outstanding violations and fines and sometimes, their criminal past, especially if it involved financial crime. Click here to see an example of that in the record of Copar CEO Sam Cocopard.

Federal coal mining permit applicants also have to provide enough financial information to convince the regulators that they have the money to be able to mine responsibly and complete their reclamation plan. I doubt Copar could pass that test (click here and here and here).

The feds reasoned that mine operators with bad histories are more than likely to have bad futures. While it’s nice to believe in contrition, redemption and forgiveness, that’s not necessarily good public policy when giving out licenses to gouge deep scars out of the landscape.

In my opinion, Ordinance 362 is seriously flawed without a permit block.

Another Glaring Omission: Citizens’ Complaint process

Photo credit: Chariho Times

Almost all of Charlestown’s land use ordinances are “complaint-driven” though that is rarely mentioned in the ordinance language. However, it comes up at hearings about ordinances and certainly shows up in the form of complaints to the town in neighbor-versus neighbor disputes.

When the feds passed SMCRA, they acknowledged there was no way they could effectively police the coal fields without help from citizens. For that reason, they crafted a section of the law expressly giving citizens the power to trigger federal enforcement action (§721.13 Inspections based on citizen requests).

Charlestown does not employ staff sufficient to enforce Ordinance #362, nor is it likely to. And some tasks, such as vetting a mine applicant’s background, requires investigative skills that also seem to be absent among our staff. I’m not knocking them, but simply stating that if Charlestown is serious about wanting to regulate extraction operations, it’s going to need community help.

Let’s try to address how to effectively and fairly enforce the law by setting out provisions for how the “complaint-driven” aspects of the law will be carried out.

In conclusion….

Sorry for such a long article, folks, but I wanted to make sure I gave Ordinance #362 the attention it deserves. The Planning Commission did surprisingly well, even without any apparent experience with mining and none with SMCRA. 

Even if they blow off all my recommendations, this ordinance is still a quantum leap better than what we have now (which is nothing). I just hope they are open-minded enough to consider the improvements I have suggested and not reject them out of hand because they come from me.

Even though it does nothing to relieve the suffering of the neighbors of Copar’s Bradford Quarry, maybe Westerly will take heed. If Westerly passed this ordinance, too, even without the improvements, it would end Copar’s blasting (eventually) and force them to either act like good neighbors or get the hell out.

I hope the embattled neighbors of the Copar Bradford Quarry can take some heart from this – without their persistent struggle, I doubt Charlestown would be taking this action, or any action, for that matter to address mining in Charlestown.