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Monday, March 3, 2014

Town Council will act on flawed mining ordinance next Monday

Ordinance has much that is good, but also contains flaws that could make it ineffective
By Will Collette
Anyone who has followed the tragic story of the neighbors of the Copar Quarries in Bradford knows that granite mining can harm the environment, people’s property values and their health. If you have followed the story, you know that Copar’s neighbors have turned to the town governments of Westerly and Charlestown for help.

Westerly has been more than disappointing – indeed, many of Copar’s neighbors feel Westerly has sold them out.

They’re not too happy with Charlestown either, but Charlestown could change that. Though Charlestown’s options for dealing with the Bradford quarry are limited by geography – the quarry site is just across the town line in Westerly – Copar has another site right in Charlestown, the old Morrone sand and gravel site right off Route 91, plus Copar appears to have designs on other Charlestown locations, such as the long-dormant South County Sand & Gravel site on Klondike Road.

Because of Copar, a huge gap has been revealed in Charlestown’s Code of Ordinances. Even though we have laws that regulate mulch, the color of electrical outlet covers, a law that forbids you from throwing a snowball at a tree and regulates what you can park in your yard, we have NO laws regulating mining.

The Morrone Land Company is actually Copar
which is mining there under lease
According to Zoning officer Joe Warner, Charlestown has at least seven sites. Six of them are active, including the Morrone site which is being mined under lease by Copar. There is one inactive site – the Klondike Road site being eyed by Copar.

So all the more reason why Charlestown needs to catch up with events and enact the best possible mining ordinance.

The town could have used the 37 year old federal Surface Mining Control and Reclamation Act (SMCRA) as a model for a Charlestown ordinance, but instead it looked at a sampling of less effective measures.

The result is Ordinance #364 which goes before the Town Council next Monday, March 10, for a public hearing and possibly a vote.

First, let’s recognize that Ordinance #364 is a vast improvement over the current complete absence of mining regulation in Charlestown. And let’s recognize that Ordinance #364 does several very good things such as (a) banning any new mining; (b) banning blasting; (c) setting good environmental standards and (d) requiring sites to be restored to some semblance of their natural state.

All of these provisions are necessary and, as Council member George Tremblay acknowledged, would not have happened if it weren’t for the protests of Copar’s neighbors.

Unfortunately, Ordinance #364 contains a number of loopholes, flaws and omissions that diminish its effectiveness. These problems can be fixed, and should be, before Ordinance #364 is voted into law by the Town Council. Let’s look at those issues.

Existing operations

One of Charlestown's largest active sites - right on Route One
Since Ordinance #364 bans any new mining operations in town, we need to look very closely at how the ordinance addresses the seven or more existing sites in Charlestown. Ordinance #364 does cover them, but with an enormous time lag – as much as two years before an existing operation must fully comply with the law.

Every existing facility will have up to three months to apply for a “temporary permit.” The town will have up to three months to review and act on that permit application. Then the facility can operate for 18 months before applying for a permanent permit. During that period, the environmental standards in the law do not apply to this facility.

This extended period of essentially lawless operation is too damned long!

Copar's operation in Richmond is technically a construction site and that
would be an "exempt" activity under the Charlestown ordinance

Another loophole in Ordinance #364 is the exemption granted to mineral extraction that is part of the construction process for a building or development. This is exactly what Copar is supposedly doing at its Richmond site – quarrying stone and gravel on the land for the permitted future Richmond Commons development right off Route 138. Except Richmond Commons may never get built and meanwhile, Copar is mining a hell of a lot of stone. Under the language of Ordinance #364, that would be an “exempt” activity in Charlestown.

Restoration and reclamation

Reclamation is a big and expensive job. This is a small section of Copar's
Bradford operation [EcoRI photo]
Ordinance #364 contains the requirement that quarries and sand pits must be restored to some semblance of their original condition after mining is completed. This could be done section by section as each area is mined out, or at the end of the facility’s working life. This is a crucial part of Ordinance #364 and the proper language is in there about how the land should be restored.

But the timing is screwed up

According to Ordinance #364, a mine operator does not need to submit a reclamation plan as part of the permit application – this is a hard and fast part of the federal mining law – but instead, the mine operator can wait until “nine months prior to the expected date of cessation. [§155-34 a.].”

That provision is illogical. Charlestown needs to know the operator’s reclamation plan before issuing any permit to mine. Can we reasonably expect a company like Copar to give the town nine months’ notice that it plans to stop mining at the Morrone site and submit a reclamation plan? How many of you think that just maybe Copar will simply boogie out of town

The fix for this problem is easy – simply make submission of a restoration plan part of the permit application process as the federal government has for the past 37 years. No reclamation plan, no permit.

I had a concern about bonding and reclamation, but that concern was answered at the Planning Commission’s January 22 meeting. Ordinance #364 will require mine operators to submit surety as part of their permit application to ensure they meet the environmental standards during their operations. When they plan to stop mining and shift into restoration, that bond becomes the surety for the reclamation work.

Why grant permits to law-breakers?

"Yeah, it's all good. Trust me."
Ordinance #364 sorely lacks the provision in the federal mining law that helps to keep some of the worst players out of the business – the “permit block” sometimes referred to as the “bad actor” rule.

When the feds enacted the Surface Mining Act (SMCRA), they recognized that mining is a rough business with a lot of rough characters. They wanted a tool to weed out the bad actors before they received mining permits. Thus the “permit block” which requires substantial disclosure by permit applicants about the record of the company, including its record under other names, and of the principal players in the company.

The feds recognized the bad operators change their names and corporate line-ups as often as they change their underwear.

Charlestown should require disclosure similar to that required by the feds – company names for all parent or subsidiary companies (past and present), the names of officers, board members and major investors and the legal and environmental histories of all these players.

If there are substantial legal or environmental problems in this history, no permit. Unresolved environmental issues or past unreclaimed mines? No permit.

Do we want another Copar with all of its environmental issues and corporate principals with long rap sheets? Adding a “permit block” provision is the answer.

However, that won’t work very well without addressing one final major omission.

Citizen Participation

Enforcement of Ordinance #364 will be almost impossible without the help of residents. As much as I admire and respect Joe Warner and most of the town staff, they need help.

For example, if Charlestown adds the “permit block” provision to Ordinance #364, who at Town Hall has the skills or tools to determine whether the background information submitted by a mine permit applicant is true or complete? The federal law formally acknowledges the role of citizens with specific language that attaches public hearings to most decisions and grants the right to citizens to petition for enforcement action and public hearings.

Let’s say, as an example, that Copar files for a permit to restart operations at the old Klondike Road site. Presuming we add a permit block to the law, let’s say they fill out the disclosure section about the past record of their companies, its related companies and its principals. Click here and here and here for examples of some of Copar’s issues.

Let’s say what Copar reports turns out to be inaccurate or incomplete. There should be a provision in Ordinance #364 that calls for a public hearing on their application and that invites citizen input, such as for example, information on Copar that provides a more thorough picture of Copar’s past.

Wouldn’t that make sense? Would Joe Warner issue a permit to Copar after all that?

Let’s say one of the permitted operations in Charlestown starts violating the standards set out in Ordinance #364 perhaps on hours of operation or dust or noise or mine run-off. Federal law formally lays out a process for a citizen to file a complaint which then requires the federal Office of Surface Mining to conduct an inspection – and allows the complainant to go along on the inspection and participate in any enforcement action that ensues.

Most Charlestown ordinances are “complaint-driven” anyway but without a formal acknowledgement or actual process which often leads to these complaints being used as weapons in neighborhood grudge fights.

That probably won’t change so why not formally write in a citizens’ complaint and participation process into the ordinance?

Fix the problems before enacting Ordinance 364

Planning Commissar Ruth Platner said that the reason why she intended to send Ordinance 364 to the Town Council without fixing the problems in it is the impending expiration of the town’s moratorium on new mining operations.

While it is true that this moratorium is set to expire, there’s a simple solution – extend the moratorium.

This is what happened while Platner and her plucky planners were working on Charlestown’s draconian anti-wind energy ordinance. The town had a moratorium against any and all devices that turned wind into electricity. The moratorium was supposed to give Platner time to write a town ordinance to regulate wind power. She needed more time, so the Council extended the moratorium.

For some reason, she doesn’t want to do that in the case of Ordinance 364. She should explain her reasons why it was OK to extend the moratorium on wind energy but not mining, and why she wants the Council to act on an ordinance she knows is full of holes.

The right thing for the Town Council to do on Monday is to go forward with the public hearing on Ordinance 364 and take note of the things that need fixing.

Then they should extend the moratorium while sending Ordinance 364 back to Planning to be fixed. If, instead, they simply pass Ordinance 364 as is, and say that they will fix the problems later, don’t hold your breath that this will ever happen.

As carpenters say, “measure twice, cut once.” Let’s get this right the first time for the betterment of Charlestown in the future.