Lies, damned lies and mining in Charlestown, Part one

Charlestown Town Council confused about what to do, punts the issue back to the Town Solicitor.

It IS true that Copar triggered local attention to the effects of mining - but
NOT true that they are the only bad actor

By Will Collette

Part two will run tomorrow night.

Charlestown, along with much of the Rhode Island coast, has long had granite quarries, gravel banks and sand pits changing the landscape, and not for the better. 

The legacy we all live with are an unknown, but large, number of abandoned sites as well as a number – six in Charlestown – still in operation, many of them now highly mechanized with large earth-moving equipment, rock crushers, and some now use large high-explosive blasts to move material.

Until a Connecticut company called Copar (now renamed Armetta LLC) moved into the area, the old abandoned sites have sat as silent hazards waiting to claim their next victim[1] – or welcome their next operator. The operating sites did what they did (and still do), perhaps annoying their immediate neighbors, while turning 300 acres of Charlestown into a moonscape.

Since Copar started running on Westerly Granite’s property in Bradford, the hardships it imposed on its Bradford and Charlestown neighbors drew attention to the broader scope of mining issues in our area.

Since then, Charlestown’s Town Council has fumbled its way in search of a way to respond to angry citizens on one hand, and angry quarry, gravel and sand pit owners on the other, and has done nothing useful to either address current conditions or the need for effective regulations for the future. All they've done is rack up billable hours for the lawyers.

What I find most exasperating about what passes for “debate” on this subject is the amount of false information, if not outright lies, are being passed off – and largely accepted or even served up by our Town Council.

At the Council’s most recent debate on the subject (click here to see and hear), we heard the following false statements:

• Mining is already heavily regulated at the federal and state level.
• It’s really only about Copar/Armetta. All other Charlestown operators, past and present have been good neighbors.
• Charlestown operations are already covered by the town’s zoning ordinance.
• Any new ordinance Charlestown passes must be immune to lawsuits.
• Charlestown doesn’t have the authority to add additional requirements.
• The “General Assembly let us down.”
• It’s none of the town’s business to know whether a mining operation pays its bills.
• If people have suffered damage from a mining operation, it’s a simple matter of putting in a claim with your home insurance carrier.

All of these arguments are false. One by one, I’ll show you why all of these arguments are false. 

It’s a long and complex subject, so I will break it up into two parts. Tonight's installment will cover the first four false arguments. Tomorrow night, we’ll cover the remainder where some of the most blatant lies were told.

Here we go.

FALSE STATEMENT: “Mining is already heavily regulated”

In fact, there are almost no federal, state or local laws covering quarries, sand pits and gravel banks.

There is one national model for how to effectively regulate mining called the Surface Mining Control and Reclamation Act. This is a federal law, enacted in 1977, that focused exclusively on coal mining. Despite years of legal challenges, SMCRA’s key provisions survive. These are:

1. to require permits of all operators who qualify based on their past legal history and current financial condition; 
2. to require operators to abide by a broad array of environmental standards; and 
3. to require operators to reclaim the mined land, as well as a bond upon application to cover reclamation.

SMCRA covers only coal mining. There is no federal law and no Rhode Island law that specifically covers the environmental effects of mining for materials other than coal.

Copar photo by Ecori.org. Among the most commonly cited violations
cited by MSHA - excessive noise, dust, improper equipment operation

The federal Mine Safety and Health Administration does have specific jurisdiction to enforce health and safety standards to protect the workers in both coal and non-coal mines. They have conducted inspections and issued fines against half of Charlestown’s operating gravel and sand operations for violating the law on worker health and safety. However, they have no jurisdiction to protect the neighbors or the environment[2].

When mine operators – like most in our area – get cited by MSHA for violations, it’s like a canary in a coal mine, if you’ll pardon the mixed metaphor. If an operator exposes its workers to hazards, then chances are they care even less about the environment or their neighbors’ well-being.

DEM inspectors put their clean cars in the path of
Copar's dust plume to see how much would settle

Both the federal EPA and the RI Department of Environmental Management (DEM) have general authority to enforce clean air, clean water and waste disposal laws but no specific jurisdiction over mines. 

I spoke to DEM’s Chief of Enforcement Dave Choppy. He admits they lack the capacity (staff and equipment) and specific state authority to handle quarries, gravel and sand pits. Recently, DEM cited Copar/Armetta for dust violations using the hoods of inspectors’ cars as the dust collection devices. I’m not making this up.

Charlestown’s only regulation of quarrying, aside from banning swimming in abandoned quarries, is to label new mine sites as a prohibited land use. 

Yet, with many old sites on the landscape, as we saw with the Copar and Botka examples, it only takes days for an inactive site to become an active one without technically becoming a new mine.

FALSE STATEMENT: It’s just about Copar/Armetta in Bradford – all the other operators are just fine

Copar has another site right in Charlestown. They now lease Morrone’s sand pit on Route 91. Since they took over the Morrone site in Charlestown operation, they have been repeatedly cited by MSHA for worker safety violations.

Botka quarry (lower right)

Both South County Sand & Gravel and Shoreline Gravel have been recently cited by MSHA for worker safety violations. Let’s not forget last year’s helicopter gunship incident at Shoreline, an incident that could also have drawn an illegal dumping charge (for junk cars) if DEM had come onto the scene.

The Botka Quarry off Route Two was issued a cease-and-desist order by Town Zoning Officer Joe Warner for operating an illegal mine. The Zoning Board overturned that order. Remember this when we get to the discussion about how the Zoning ordinance supposedly offers residents enough protection from mining. Zoning accepted Botka’s argument that he had been mining before the zoning ordinance was enacted and was thus exempt from it, i.e. “grandfathered[3].”

The Town Council chose not to challenge that ruling, despite other instances where the Council sued the Zoning Board for far less critical reasons (e.g. Shelter Cove). They left it up to Botka’s neighbors, including some of his family members, to go into Superior Court to try to shut down the Botka operation.

Click here to see aerial photos of all six of Charlestown’s operating sites – then ask yourself, “why doesn’t the town regulate these sites when it regulates what color of electrical fixtures business owners on Route 1A  can use?” I’m not making that up, either.

Then there are the many abandoned sites scattered across the town landscape. Joe Warner told me the town doesn’t have a record of how many there are and where they are located, but said that, after looking at the GIS data, there seems like a lot of them. The most well-known abandoned site is the one owned by South County Sand & Gravel on Klondike Road.

The only MSHA record of an abandoned site in Charlestown

MSHA maintains a small list of abandoned sites, but generally only when an operator notifies them that they are shutting down operations (so MSHA can take it off its inspection schedule).

The only site they have listed for Charlestown is Charlestown Sand & Gravel. I spoke to Robert Dow, the MSHA Field Office Supervisor whose “beat” includes Charlestown.

He told me he thought there were lots of abandoned sites but had no idea if any federal, state or local agency kept tabs on them.

The sites currently operating in Charlestown are under no legal obligation to reclaim the 300 acres they have turned into a moonscape. Neither are the former owners and operators of the abandoned sites. Again, look at the individual aerial shots.

I combed over Google Earth[4], zeroing in and out on properties that looked like they were once quarries, gravel banks or sand pits. I found more than a dozen, though it would take on-the-ground searches to be sure. See the map below that plots out Charlestown’s six operating sites and others. Go to Google Earth and look around your own neighborhood. I’ll bet you’ll be surprised at what you see.

So no, it isn’t just the Copar/Armetta quarry in Bradford that makes it necessary for Charlestown to regulate mining.

There are at least twenty sites in Charlestown where mining looks like it is either taking place now, or did in the past. There are probably lots of old sites hidden in the woods, especially off King's Factory Road (Google Earth image)

FALSE STATEMENT: Charlestown operations are already covered by the town’s zoning ordinance.

Planning Commissar Ruth Platner has been willing to
amend Charlestown's zoning ordinance to amend all sorts
of things she doesn't like. Why not mining?

See the discussion about the Botka quarry, above. In theory, Charlestown’s zoning ordinance covers just about every imaginable thing a land owner might do to his or her land. Except environmental standards for mining. Except reclaiming the mined land after mining is done.

Can Charlestown’s zoning ordinance be changed? Sure it can. It happens all the time. In fact, I have devoted numerous articles to excoriating Planning Commissar Ruth Platner and the Planning Commission for misusing their authority to amend the zoning ordinance to micro-manage the lives of every Charlestown property owner. 

I stand by those remarks, but have to wonder, how could they have failed to deal with mining? Why do they seem to care more about how many gables a building has, or the color of its shingles or whether a homeowner has an in-law apartment or a small wind turbine and not care about 300 acres of this town being turned into a dead zone?

Of course, if Planning did decide to take mining seriously – which they chose not to do in the past, by the way, essentially throwing their hands in the air – can they make it stick and will whatever they pass apply to existing operations?

As noted by Evelyn Smith, owner of Shoreline Gravel, it will be up to the state courts to determine how far any such changes can go, including the extent to which new environmental standards would apply to existing operators.

I think Charlestown has authority that it has not yet tried to use under the town’s existing business license ordinance that permits the town to impose changes on existing licensees. Here’s what the Charlestown ordinance says:

§ 147-2 License and fees.
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.

So let's have some of those rules and regulations all ready.

Even though Charlestown’s current law bans new mines, as you can see in the map above, there are lots of old properties that could be activated. And before you say this isn’t possible, look at the Copar and Botka cases.

NOT TRUE: Any ordinance must be immune to lawsuits before Charlestown can enact it.

This constant refrain from all the Council members makes me want to howl. 

If Charlestown was afraid of being sued by passing new ordinances, then virtually none of the crazy ordinances crafted by the Planning Commission would ever get passed.

Indeed, any ordinance or regulation, no matter how innocuous, no matter how important to public health and welfare, could lead to a lawsuit. Why are we any more afraid of lawsuits from mine operators than we are of any other property owner?

If the Charlestown Town Council really wants to address the problems caused by past and present mining, it should think boldly. No matter what it does, if it does anything at all, the town will be sued. 

That's why we keep lawyers on retainer.

If we’re going to get sued, let’s make it worthwhile. By all means, pay attention to the owners’ due process rights and correct the many flaws that were pointed out last April, but write a strong ordinance.

Let the ordinance make it hard for bad actors to get permits. Include the strongest possible environmental standards on operations. No ordinance is complete without a requirement to reclaim the land.

Focus sharply on preventing operators like Copar/Armetta from taking over one of the dozen or more old sites peppering Charlestown’s landscape to make sure they are not able to “grandfather” their way into this community. Require bonds to cover operations and reclamation. Make sure reclamation actually takes place.

The federal coal law, SMCRA, also levies a fee on every ton of new coal mined for a fund used to reclaim abandoned mines. I think that would be nice, too, though a stretch for Charlestown. Something perhaps to consider on the state level.

When the feds enacted the Surface Mining Act, it underwent years of litigation. It survived. I have been suggesting from the start that the more we use SMCRA as the model, the better the chances of making it through the inevitable lawsuits.

Tomorrow, we’ll cover these four false statements:

• Charlestown doesn’t have the authority to add additional requirements.
• The “General Assembly let us down.”
• It’s none of the town’s business to know whether a mining operation pays its bills.
• If people have suffered damage from a mining operation, it’s simply a matter of filing a claim with your home insurance carrier.

FOOTNOTES

---

[1] There is no central database for filing official notices of deaths and injuries in abandoned mines. There are approximately 500,000 abandoned mines of all sorts in the US. MSHA now maintains a listing, but their information largely comes from scanning the news media. Here is their data for up to 2013. They report an additional five for this year, up to July.They do not include the recent death of a Providence boy who drowned in a Milford, MA quarry last July.

[2] Workers at a particular mine site have the right to file complaints against the operator, but technically, people who live outside the site and don’t work there, have no standing. MSHA operates in a manner similar to OSHA and just as you can’t file an OSHA complaint unless you are either employed at a job site or are the union rep for the workers.

[3] For all practical purposes, grandfathering in Charlestown lasts forever. Under SMCRA, the federal coal mining law, if a grandfathered mine changes ownership, the new owner does not get the benefit of grandfathering and must apply for a new permit. Charlestown does not have such a permitting law.

[4] Google Earth is a great program you can download for free (click here). It’s about as user-friendly as a powerful program can get. And it’s fun to use.