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Wednesday, April 9, 2014

New draft of Charlestown’s proposed mining regulations much tougher

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

open animated GIF
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.