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Wednesday, August 20, 2014

Mine safety inspectors zap local quarries

Copar, South County Sand & Gravel, others hit with federal fines
By Will Collette

I’ve been investigating and writing about the Copar Quarry[1] in Bradford since October 2012. Dale Faulkner at the Westerly Sun has been doing some terrific investigative reporting. The local victims’ group has worked hard at trying to draw attention to health issues and filing lawsuits. Rep. Donna Walsh has been trying to mobilize state action. 

And the town councils of Westerly[2] and Charlestown have been made to look like fools.

But the problems at Copar in Bradford still remain. Indeed, Copar has since acquired two more quarry sites, one in Charlestown and another in Richmond. I’ve also been hearing persistent reports of Copar efforts to acquire mineral rights at other sites, despite its recent problems with the IRS. Plus, more attention has been drawn to other local quarries in and around Charlestown.

After all that, the Charlestown Town Council still seems stumped on how to regulate quarries and sand & gravel pits which are largely unregulated. Awkward attempts at trying to pass an ordinance to regulate these sites crashed due to legal sloppiness[3] by the Town Solicitor, threats from Copar and opposition from the owners of the other quarries. 

Indeed, the only rule the inept Charlestown Town Council managed to adopt was a decree by Council Boss Tom Gentz (CCA Party) at the April 14, 2014 Council meeting that residents who speak at Council meetings are not allowed to use the name "Copar" when they testify.

As it stands, there is only one governmental agency that has demonstrated any intent to regulate is the federal Mine Safety and Health Administration (MSHA). Unlike RIDEM, which has few inspectors and ambiguous legal authority, MSHA inspectors have been regularly visiting local quarries and citing mine owners for unsafe working conditions.

That’s MSHA sole authority – to oversee America’s mines to try to prevent workers from being killed or injured while on the job, and they frequently take a lot of heat for not doing better inspections, especially after every mine accident. MSHA's authority does not extend to protecting the neighbors or the environment. Click here to access their inspection database, the source of the information that follows.

However, one thing I learned from 20 years[4] of dealing with chemical plants, dumpsites and mines, is that when the safety inspectors uncover workplace hazards, that usually means the business is doing other things that are unsafe to people and the environment.

As you would expect, MSHA has cited Copar’s Bradford operation repeatedly. On July 8, they inspected the Bradford quarry and issued four Notices of Violation for unsafe equipment operation. 

That brings the total number of MSHA notices of violation against Copar at the Bradford site close to seventy since 2011.
Screenshot from MSHA database on recent violations at Copar's Bradford quarry

Copar has also been repeated cited and fined by MSHA at the former Morrone pit off Route 91 in Charlestown. Copar took it over in 2013. This was the pit that supplied much of the sand for the Misquamicut beach restoration when the Botka quarry off Route 2 couldn’t supply enough sand to fulfill their contract. 

MSHA has inspected that Copar operation and issued five violations for unsafe working conditions. They had also issued quite a number of violations to Morrone, and Copar assumed the liability for those fines when it took them over.

Screenshot from MSHA database on recent violations at Copar's operation right here in Charlestown

As you can see from the screen shot from MSHA's database (above), Copar/Morrone right in Charlestown is delinquent on three of those violations.

While Copar was going through its “management changes” when chief investor and convicted felon Phil Armetta took over control of Copar from CEO and convicted felon Sam Cocopard after discovering that eleven million dollars were missing, the Copar quarry at the Richmond Commons site went dormant. But now that Armetta is in control, that site is now active again, to the point where they just drew thirteen safety violations when MSHA inspected on July 8.

Screenshot from MSHA database on July violations at Copar's Richmond operation

But it’s not just Copar

During the debate over Charlestown’s proposed ordinance to regulate quarries, the Town Council members went out of their way to show deference to Charlestown’s other quarry and sand & gravel operators, acting as if there were never any problems with any of them (except maybe this or maybe that).

But the MSHA record shows that our other, non-Copar operators are not as clean as you would think from the minutes of the Charlestown Town Council.

For example, South County Sand & Gravel was inspected on March 20 and drew five violations.

Screenshot from MSHA database on recent violations at South County Sand & Gravel

Shoreline Sand & Gravel, site of last summer’s incident where a helicopter full of guys with guns strafed a junked car in the pit, drew four MSHA violations in April – two for Shoreline and two for a contractor, Frost Excavating. Shoreline's violations were paperwork-related, but Frost's had to do with defects in safety training.

Incidentally, that junked car the boys shot up could have led to a DEM violation for illegal waste disposal, as it did when DEM caught Copar dumping large appliances in Bradford.

Screenshot from MSHA database on recent violations at Shoreline Gravel

With all due respect to the Charlestown operators, there is no rational reason why there should be no regulation of quarry sites, except by federal MSHA. The argument that only Copar is a miscreant is simply not supported by the record.

So what is the best way for the town to regulate quarries?

Phil Armetta, owner of Copar/Armetta LLC
(photo by Stephen DeVoto, Middletown Eye)
At minimum, Charlestown needs to enact a “Bad Actor Ordinance” that forbids issuing business licenses or town contracts to certain specified types of offenders. 

Most local “bad actor” ordinances start with persons or businesses that have been convicted of financial crimes, such as fraud, larceny, bid-rigging, price-fixing, etc.

Copar is a model for such an ordinance where its past CEO Sam Cocopard was found guilty of over 20 financial crimes, its principal investor Phil Armetta served federal prison time on racketeering-related crimes and its new CEO Michael Sparfven has been convicted of numerous federal and state crimes.

And Charlestown gave Copar a business license. Richmond actually has a pretty decent “bad actor” ordinance with one teensy little flaw – quarries don’t need a business license in Richmond. So Copar operates in Richmond despite the criminal records and shady backgrounds of its principals.

A good bad actor law should apply to all businesses on the principle that we should not be doing business with criminals.

Other towns add other types of offenses to the list that triggers a ban on contracts or licenses, such as environmental, safety and worker rights offenses. 

Some towns include the failure to pay taxes as cause for denial. Again, Copar provides us with a prime example – see Dale Faulkner’s piece on IRS tax liens slapped on Copar and their unpaid local taxes.
Gentz: "Don't say 'Copar!' Problem solved."

When the Town Council members decided that the last version of the Charlestown quarry ordinance wasn’t suitable, they said they might try to regulate mining through the town’s zoning ordinance, but only after they had sat down and talked to the quarry operators.

Well, the quarry operators haven’t agreed to a meeting date, so nothing is happening. 

If I was a Charlestown quarry operator, I’d never consent to the meeting because I know the Town Council members are too chicken-shit to do anything about it.

The broader approach Charlestown tried (and has apparently now decided to reject) was actually a step in the right direction. The closer the town comes to modeling its town ordinance after the one and only national law that regulates mining – the Surface Mining Control and Reclamation Act (SMCRA) – the better. But SMCRA only regulates coal mining.

Mine operators said all the same things to try to block SMCRA that Charlestown’s quarry operators said in their successful opposition to the Charlestown ordinance. That it was unfair. That the operators police themselves. That regulating them will hurt jobs and the economy. That it was radical. And that they will sue.

SMCRA was enacted almost 40 years ago and there were lawsuits. Lots of them. But eventually, the lawsuits ended, the law was upheld and the predicted catastrophe to jobs and the economy didn’t happen. Job loss in the coal fields was due almost entirely to the switch to giant machinery and reliance on explosives rather than on human beings.

If Charlestown passes an ordinance that does the three key things that SMCRA does (bans bad actors from getting permits, holds operators to environmental standards and requires all mine sites to be reclaimed), then of course there will be lawsuits.

Charlestown is always getting sued for something or other. Often, it’s foolish litigation that’s ineptly executed. The Whalerock litigation is a prime example.

Botka quarries - declared illegal by Zoning Officer, "grandfathered" by
the ZBR. Town Council did NOTHING to enforce Zoning Officer's order
But often, it’s OK to get sued if you’re doing the right thing and you’ve done all the right things. 

Take for example Charlestown’s failure to sue the Zoning Board of Review over the decision to allow the Botka quarry to continue operating after Zoning OfficialJoe Warner issued a cease-and-desist order, declaring the quarry to be an illegal mine.

I understand the ZBR’s reasoning for overturning Joe’s enforcement action, but that was a case that deserved to be put before a judge.  
For some reason, our otherwise lawsuit-happy Council members are afraid to challenge the quarry industry in town, even though there’s the on-going, never-ending Shelter Cove[5] litigation that closely resembles the Botka case.

Quarries and sand pits need to be good neighbors. They should respect their neighbors, protect the environment and reclaim the land. Despite the platitudes from the Council members, our local quarries and sand pits have  spotty records despite almost no effective regulation.

Very few industries have as much impact on the land as quarries. We have 300 acres of Charlestown land[6] currently being mined and an unknown number of acres of abandoned quarries dotting the landscape. The real question is why have we waited so long to take action, and what’s stopping us now?


[1] I’m going to use “Copar” throughout this article even though, technically, they claim they have changed their name to Armetta, LLC. First, most people in Charlestown who pay any attention at all know the name Copar but might not know Armetta. Second, it appears from the way they are listed in the federal Mine Safety and Health Administration database they forgot to tell the feds about the name change.

[2] In Westerly’s case, they not only look foolish, but also corrupt. Indeed, Dale Faulkner uncovered cases where Copar or people connected to it gave town officials job offers and gifts.

[3] Like forgetting to include appeal and due process rights, forgetting key deadlines, etc. and in general, simply cribbing Middletown's ordinance rather than using SMCRA as a model.

[4] Ten years as national organizing director for the Citizens Clearinghouse for Hazardous Wastes, now called the Center for Health and Environmental Justice. And ten years as staff director for the Citizens Coal Council.

[5] Shelter Cove LLC owns the site that includes Johnny Angel’s Clam Shack and commercial beach parking. The town issued an order against Shelter Cove to stop parking cars there. Shelter Cove appealed to the ZBR, arguing they’ve been selling beach parking spaces there for decades and thus were “grandfathered” (just as Botka claimed about his quarry). 

The ZBR overturned the town Zoning Officer’s order. The Charlestown Town Council authorized a lawsuit against the ZBR and Shelter Cove and it’s been back and forth ever since. Why is it worth fighting Shelter Cove to the max, but not Botka?

[6] By contrast, Ninigret Park is only 277 acres.