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Thursday, April 17, 2014

Quarry ordinance undermined by mistakes

Corporate civil rights trump public safety
By Will Collette
funny animated GIF
Voldemort won on April 14. Charlestown lost.
The Charlestown Town Council got an earful from attorneys representing Charlestown quarry operators about serious, if not fatal flaws, in the new ordinance that was apparently crafted in haste by Town Solicitor Peter Ruggiero to regulate quarrying operations in Charlestown for the first time.

The Council was presented with a two-part decision. The first action before them was a proposed resolution to seek “enabling legislation” from the General Assembly that would grant Charlestown the authority to regulation quarries and sand pits. Town Solicitor Ruggiero noted that this resolution simply sought the state’s advance permission to enact a mining ordinance, but did not obligate the town to do so. The Council was warned by attorney Maggie Hogan that the resolution doesn't actually do what Ruggiero said it would do. Nonetheless, the Council adopted the measure, after extended debate, by 4 to 1 (Lisa DiBello voting no).  

The second decision before them was a complete re-write of last month’s Ordinance #362, now numbered Ordinance #364. The debate over that ordinance was even hotter and ended without a final vote.

When I reviewed the new draft of the ordinance, I was pleased to see stronger protections for public safety, health and the environment that more closely resemble the well-tested provisions of the federal coal mining law, the Surface Mining and Control and Reclamation Act (SMCRA). SMCRA has been in effect for almost 40 years and its environmental standards have withstood innumerable legal challenges.

While I didn’t feel at all motivated to worry about the civil rights of the operators, I did note the odd absence of timelines in the new draft for when existing quarry operators were supposed to file their applications and when they were obliged to obey all the provisions of the ordinance. I had every confidence that attorneys for the operators would thoroughly defend their clients’ interests.

Effort to regulate mining set back by Solicitor Ruggiero's sloppy
legal work
And that’s exactly what they did. 

Although Thomas Enright, one of the many attorneys for the notorious Copar Quarries, spoke first, attorney Maggie Hogan, representing Evelyn Smith, really got the ball rolling with an emotionally-charged yet meticulously detailed critique of Solicitor Ruggiero’s work product.

She added detailed layers and flavor to the Constitutional objections raised by the Copar lawyer, pointing out the sloppy errors in the new ordinance draft that “appalled” her. I urge you to watch and listen to her arguments before the Council on Clerkbase (assuming you can access it[1]).

She tore Peter Ruggiero up so badly that, at one point, Town Council Boss Tom Gentz interrupted to rebuke her for overly personal testimony that Boss Gentz found “offensive.” Maggie was unapologetic, holding that the ordinance was so offensive that her characterizations were appropriate.

Ruggiero’s only response was to say he felt his approach was sound and that the criticisms leveled against his work were “just an argument.” But it was pretty clear to me (and everyone else) that if it was an argument, then Ruggiero lost it. And not just lost, but lost in embarrassing fashion where the overall quality of his work and even his competence is called into question.

The Supremes love corporations
The major flaw in the new ordinance is that it is loaded with provisions[2] that take away the due process rights of existing mine operators who try to apply for a permit to continue operating. 

While I am no fan of the concept of corporate civil rights such as granting them personhood[3], free speech, etc., the fact is that the US Supreme Court is a huge fan of corporate rights, whether you like that idea or whether it makes you want to barf.

The law of the land is that you cannot deny businesses due process rights, take away their use of property without due process and, under certain circumstances, compensation, subject them to arbitrary and capricious decisions and, unfortunately, draft Ordinance #364 is loaded with problems like these.

Missteps and misinformation didn’t help

Boss Gentz: Don't say that name!
While the debate centered on the Constitutional rights of corporations, some Charlestown residents felt their Constitutional rights were thrown under the bus. Charlestown resident and Copar neighbor Al James said that he recalled some protections for people in the Constitution[4].

Most galling was Boss Gentz’s decision to impose a gag rule on any resident who named the Corporation That Shall Not Be Named (i.e. Copar). Any time a resident spoke at the podium to cite an example from their own experience with Copar (Copar, Copar, Copar) that underscored the need for a mining ordinance, they were reprimanded by Boss Gentz if they said Copar.

Next time, let’s just substitute “Voldemort” for Copar and see if that makes Boss Gentz’s head explode.

Jim Mageau weighed in to support the quarries and oppose residents who wanted to see the quarries regulated. He said the quarries in Charlestown were just fine and didn’t need regulation. 

He chided the Town Council for pandering to what he termed the elite few at the outskirts of town who wanted special treatment. He also criticized the Council for putting up $50,000 to pay for the Copar neighbors’ legal defense (drawing surprised gasps from the audience who knew this wasn’t true).

The problem is that Jim was wrong on nearly every claim he made.

For one, there have been problems with other quarries, and not just Copar. While it is true that Copar’s outrageous conduct at the Bradford quarry on the Charlestown line has gotten the most attention, people have voiced complaints about several of the other sites. As I reported, the town attempted to close down the Botka site on the northern shore of Pasquiset Pond and local residents are currently suing Botka over that site.

Perhaps it was due to Council Boss Gentz’s censorship of mentioning the Corporation That Shall Not Be Named, but in fact Copar is not only in Bradford, but also has an operating site right in Charlestown – they took over the old Morrone site on Route 91. They operate right on the bank of the Pawcatuck River and blast regularly. They have already been cited for unsafe blasting practices by the Mine Safety and Health Administration[5].

From the US Mine Safety & Health Administration enforcement database. These violations are for Copar on Route 91 in Charlestown - not Bradford where there are many more violations. Maine Drilling and Blasting is Copar's blasting contractor.
Plus, as Pat Kent and Raymond Morgan testified, there is continuing concern that “Voldemort” might acquire the lease from South County Sand & Gravel to the inactive site on Klondike Road. Pat violated Boss Gentz’s rule and named Corporation That Shall Not Be Named by name, drawing a reprimand from Gentz to which she replied, “Let Copar go ahead and sue me!”

Is that one of Boss Gentz's Porsches there?
Jim Mageau is wrong to say that only an elite few are concerned about quarrying. Charlestown’s six quarries listed as active, plus the inactive site on Klondike road, affect every part of town. 

These sites constitute around 300 acres of moonscape (bigger than Ninigret Park) that will need to be reclaimed. To my knowledge, only Evelyn Smith has ever reclaimed unused quarry land voluntarily. Click here to read an article containing aerial shots of each of the seven sites.

Just about everyone in Charlestown will be affected over the next several weeks as the parade of trucks come down Routes Two and One from Botka’s site with sand for Misquamicut Beach restoration.

John O. Mancini - got the $50,000 contract
to fight Whalerock, not Copar
Jim Mageau also confused the Whalerock Wind Turbine fight with Copar when he said the town put up $50,000 for the legal costs of the Copar neighbors. False. The Town Council majority put up $50,000 for a Special Counsel plus all of the town’s own legal costs for three years of litigation to fight Whalerock, not Copar.

On several occasions, neighbors fighting Copar asked the Council to give them at least some of the same kind of aid and support that they gave to the “anonymous abutters” fighting Whalerock. Instead, they got goofy letters and now a fatally flawed ordinance.

Pat Kent, Al James, Denise Rhodes and Tina Shea from Concerned Citizens of Bradford-Charlestown attempted to refocus the debate on the need to regulate an unregulated industry. They said they understood the due process problems being pointed out by the quarry lawyers, but wanted to make sure public health and safety, and the environment were protected.

The strain and stress within the neighborhood near Copar's Bradford site is causing nerves to fray and tempers to flare up, and a frustrating night like April 14 doesn't help.

I doubt we’ll see much of Ordinance #364 again. Ruggiero wants to take another whack at re-writing it[6] and wants to talk about the issues in regulating mining with the Council in private. An Executive Session for that purpose has been scheduled for 5 PM on April 23.

While the public is invited to attend, in this instance, it means sitting in the empty Council chambers while the Council discusses this mess behind closed doors. They will return to the public Council chambers when they are done but will say nothing about what they discussed unless they took a vote and made a decision.

Which is unlikely.

Meanwhile, it’s business as usual at the six operating sites in Charlestown including the one on Route 91 on the banks of the Pawcatuck River operated by...Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar, Copar…


[1] And if you can’t, click here for suggestion on how you can.

[2] These include lack of criteria for Council decisions, lack of a timeline, susceptibility to arbitrary denial, reliance on “findings of fact” when no standards for such findings are provided, arbitrary provisions for default without recourse or appeal, violation of the “privileges and immunity clause of the Constitution (14th Amendment, §1) that forbids states from passing laws that discriminate against citizens of another state, the “takings” clause of the 5th Amendment that prohibits taking private property without due process or proper compensation.

[3] My favorite bumper sticker on the matter of corporate “personhood” is one that reads, “I’m not gonna believe a corporation is a person until Texas executes one.”

[4] The Preamble to the US Constitution reads “We the People of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the Blessings of Liberty to ourselves and our prosperity, do ordain and establish this Constitution for the United States of America.”

[5] Oddly, the draft Ordinance #364 struck out the prohibition against blasting that was one of the highlights of the earlier draft. Boss Gentz said this was taken out because only one quarry, the one he referred to as “the one on Route 91,” also known as the Corporation That Shall Not Be Named, a.k.a. Copar, was engaged in blasting.

That’s right, of course, and it’s also a fact that the Mine Safety and Health Administration has issued five notices of violation against Copar and its blasting contractor for unsafe blasting, excessive noise and other breeches of safety standards at the Charlestown site alone. As a rule of thumb, when a company exposes its own workers to unsafe conditions, they are even less likely to take much care in protecting their neighbors or the environment.

[6] During my working life, I was often had to write drafts of legislation. It can be interesting and challenging work, but it is work that no one should try doing without a net. Even experienced lawyers make sure that others carefully review and edit these types of drafts. 

Ruggiero may want to consider having one of his associates write the next draft. Or maybe the 5th grade history class at Charlestown Elementary.

In hindsight, the errors in Ruggiero’s draft are pretty obvious. Even though I wasn’t really looking for them, I spotted the most glaring one – the lack of timelines for critical actions. If Ruggiero does another sloppy rush job, and doesn’t have at least one other person going over it carefully, we’re going to see another debacle like the one at the April 14 Council meeting. Then Charlestown should go looking for a new Town Solicitor.