Planning
Commission removed from the loop; new ordinance to be reviewed at April 14 Town
Council meeting.
By
Will Collette
 |
| Time for Charlestown quarries to be good neighbors |
Charlestown
published a new version of the town’s proposed ordinance to regulate quarries
for the first time in Monday’s edition of the Westerly Sun [no link]. The major
changes in this new draft arose from criticisms from industry and suggestions
from residents who live near these facilities.
I’ve been covering this issue as
part of Progressive Charlestown’s on-going
reporting on the infamous Copar Quarries, and not just the one in Bradford, but
the Connecticut company’s other two sites, one in Charlestown off
Route 91
and the other off Route 138 in Richmond.
Before
the Town Council’s first hearing on Ordinance #364, I had published a detailed
analysis of the proposed ordinance and contrasted it with the protections
found in the federal Surface Mining
Control and Reclamation Act (SMCRA) which has regulated the coal industry
for almost 40 years. I spent 10 years as staff director of the Citizens Coal
Council working with local groups across the US to try to get SMCRA to be fully
enforced (that’s always the tricky part with any environmental law).
I
was surprised to see that most of the flaws in the original draft of the
ordinance, then numbered Ordinance 362, have been
fixed to more closely reflect the provisions in SMCRA. Most surprising of all
is that the Planning Commission has been largely removed from the process –
they will play no role in permitting or enforcement. This may explain why the
Planning Commission did not discuss revisions to their draft Ordinance 364 at
their April 2 meeting.
I
do not recall any occasion since Planning Commissar Ruth Platner took control
over the Planning Commission where she ever willingly gave up any power or
control over land use in Charlestown. If this ordinance is passed by the
Council, mark your calendars for this moment in history. At the Planning
Commission February 26 meeting, Platner and temporary, maybe permanent, Town
Planner Jane Weidman expressed their
lack of interest
in doing more work on mining regulation which might be the reason for this surprise.
Let’s
take a look at what changed in the proposed Ordinance #364.
No new mines,
but blasting ban is removed
 |
| The ban against blasting was removed from the new draft |
While
the ordinance draft keeps the ban against any new quarries or mines, the ban on
blasting was removed (§155-27.c.) thus allowing existing operations to continue
to blast away. I do not see any language in the new draft that addresses the
harm to neighbors that blasting can cause. In 1997, I co-authored a citizens’ guide
to blasting
to lays out the issues and the remedies.
The
new language greatly changes the section about what existing mining operations
must do to stay in business. Gone is the provision for a “temporary” permit
that would have allowed existing quarries to operate for up to two years
without having to abide by the ordinance.
The
new language requires all operators to submit a permit application to the Town
Clerk (§155-30.a.), though it does not specify exactly when. She will then have
30 days to determine whether the permit is complete. If it’s not, she will send
it back and then have up to another 30 days to certify the application’s
completeness before sending it on to the Town Council.
Since
Section Three of the ordinance says “This ordinance shall take effect
immediately upon passage,” this could be interpreted to mean that operators
must submit their applications immediately as well, absent language to the
contrary.
Planning
Commission taken out of the picture
The
section that had the application going to the Planning Commission is gone,
though they will be asked for an “advisory opinion” to the Town Council which
will actually make the decision to approve or deny the permit after holding a
public hearing (§155-30.b.). Under subsection (c.), Building Official Joe
Warner “in conjunction with the Town Planner (the aforementioned Jane Weidman)”
may inspect the site before the Council acts.
Bad actor permit
block
 |
| "Bad actor" section added |
Much
to my surprise, the new draft includes a whole new “bad actor” provision to the
permitting process. This is a key part of the federal mining law called the
“permit block” that disallows companies and individuals with bad criminal and
environmental records from getting mining permits. I'm glad Charlestown decided to finally include this provision in this ordinance. Later on, we can talk about adding a similar provision to all of the town's permitting and contracting.
This section calls for a
background check and gives the Council discretion to deny a permit to an
applicant with a bad record. (§155-31.e.)
Applicants for a permit must also be
state residents and that will make it interesting for Copar’s operation on
Route 91 to get a permit given that none of the company principals live in
Rhode Island.
Environmental
standards, operating conditions strengthened
The
environmental standards section (§155-32) got a substantial tweaking largely in
response to testimony by members of Concerned
Citizens of Bradford-Charlestown who flagged items to be strengthened
based on their terrible experience with Copar’s Bradford quarry.
Hours
of operation were shortened; fugitive dust is forbidden; buffer zone limits are
to be determined by the Council based on what’s best for the environment and
neighbors. The Building Official can require the operator to pay for
independent water testing if pollution from the site is suspected.
Flaws in reclamation
rules fixed
The
problems in the original draft that specify the requirements for operators to
restore the land (§155-34) were pretty much fixed. The new language closely
echoes the reclamation language in the federal SMCRA.
Gone is the goofy language
that allowed operators to wait until 9 months before they closed the mine to
submit a reclamation plan.
In
its place, operators will be required to submit their reclamation plan as part
of their application, as it is in the federal coal mining law. The requirement
for the operator to submit a surety bond or similar guarantee to cover
operations and reclamation as part of their application stays in place.
Again,
the new language takes the Planning Commission out of this process and vests
the Town Council with the authority to approve the reclamation plan and, at the
end, to decide whether or not to release the bond.
Changes to
enforcement section
There
are two additions to the enforcement section (§155-36) that appear to be in
response to criticisms from existing quarry operators.
The
first (subsection d.) authorizes the Town Council to sue an operator in
Superior Court in lieu of administrative action such as a Notice of Violation
from the Building Official “to restrain
any violation of or compel compliance with” the ordinance.
The
second (subsection e.) adds a right of appeal by an operator over any
enforcement action by the Building Official to the Town Council. This changes
the status quo. In 2011, Building Official Joe Warner
issued a cease-and-desist order against the Botka Quarry for being an
illegal mine and for other violations. That order and NOV was appealed to the
Zoning Board of Review which overturned Joe’s order. Now Botka will be
supplying 84,000 cubic yards of sand for the restoration of Misquamicut
state beach.
Though
it is not stated in the ordinance, if an operator is unhappy with any Town
Council actions to enforce this ordinance, there is the right of appeal to
state Superior Court.
Tough choice:
preserve mining jobs or protect people and the environment
 |
| The question: should quarry operators be allowed to walk away and leave the land like this? |
If
enacted, this ordinance will dramatically change the way Charlestown’s existing
quarries and sand & gravel pits operate. It will be difficult for them to
adjust to being largely unregulated to being strictly regulated. Some of them
may not be able to comply and that may lead to some
job loss.
However,
while the problems at the Copar quarry in Bradford may have been the trigger
for this ordinance, the Town Council heard from citizens about problems arising
from other quarries in town.
Our
landscape is dotted with old and dangerous quarry sites, so much so that
the town has enacted an ordinance
strictly forbidding swimming in these quarries. The existing
quarry operations in Charlestown currently have 300 acres that look like a
moonscape and no legal obligation to reclaim those lands.
There
may be legal challenges to this Ordinance. There usually are to laws that
impose new rules on existing businesses. However, any existing Charlestown
business licensee should note this provision in Charlestown’s Code of
Ordinances:
B. All licenses granted
under the provisions of this section shall be granted subject
to the condition that the licensed premises shall
be kept open to the inspection of the Chief of Police and the Town Council at
all times during the business hours and
subject to the provisions of the Charlestown Code of Ordinances and Rhode
Island General Laws and also subject to such rules and regulations as the Town
Council may from time to time promulgate with reference to such licensed
premises.
Ordinance
#364 is one of those “rules and regulations as the Town Council may from time
to time promulgate with reference to such licensed premises.” Bear in mind that
new laws and regulations get adopted all the time that change the rules of
operation for businesses. Without that power, government would be powerless to
make changes that protect public health and safety.
Charlestown's Planning Commission is constantly coming up with new ordinances to plague local businesses over silly, quirky things like mulch, shrubbery, where you park your truck or the color of electrical outlet covers. I've shown time and again how silly regulations make Charlestown bad for business. But this ordinance is demonstrably different.
The
question for me is whether the social benefit of the change is greater than the
cost to business. There are two key factors that give the social benefits more
weight than the costs to business.
There’s
the reclamation problem. Not only is it bad for Charlestown to leave 300
acres as moonscape,
there’s also the hazard these sites pose especially to children. In 1998, I
wrote a white paper that
inventoried how many people had been killed in abandoned mine sites. Old coal mines
claimed their share, but quarries were even worse.
Second,
there’s the anguish to people who
live near mine sites. The noise, dust, truck traffic, water pollution and damage to
their homes from blasting vibrations are bad enough to drive some people over
the edge. I saw this not just locally, but all across the country as I visited
mine sites in dozens of states.
Responsible
operators should be able to operate as good neighbors and clean up their mess
behind them. Some rare operators do so voluntarily and kudos to them. But the
history of mining in our area and across the nation argues for the need for an
ordinance like Ordinance #364 to protect the people and preserve the land.