“This Facility is Unregulated,” Says RI’s Top Environmental Official
Monday, April 10, 2023
The scene looks like a battlefield in Ukraine -- acres and acres spewed with discarded vehicles, metal, concrete, and waste tires. But the site is on Providence's waterfront at the head of Narragansett Bay.
For more than a decade, the Rhode Island Recycled Metals facility has been an environmental disaster — starting in 2012, state officials began to take action against the site, but over the years, the enforcement actions have been blocked by a complex legal action.
“Every time we find something on the site, we have to go back to court. That is the 100-plus times we have gone to court,” said Terry Gray, the Director of the Rhode Island Department of Environmental Management.
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLAST“Essentially, due to the travels of this case, the facility is unregulated,” said Gray.
“If you took this fresh and looked at these things from scratch, then it would be a significant enforcement case right as it sits today,” he added.
But it is not. Eight years ago, environmental officials tried to force the operations into meeting environmental laws.
In 2015, DEM and then-Attorney General Peter Kilmartin hit the company with a series of enforcement actions.
A complaint had been filed against Rhode Island Recycled Metals, LLC, and AARE, LLC, located on Allens Avenue in Providence, along with the property owner, and the onsite manager for RI Recycled Metals, Edward Sciaba, Sr. The complaint concerned violations of Rhode Island’s Oil Pollution Control Act and Water Pollution Act, and DEM's Water Quality Regulations, RI Pollutant Discharge Elimination System Regulations, and Oil Pollution Control Regulations.
"These corporations failed to obtain the permits that were required to begin operations, ignored the law, and then did not comply with the agreement they reached with DEM to resolve their environmental violations," said then-DEM Director Janet Coit. "By failing to invest in the equipment and other measures necessary to prevent pollution, their actions harmed the environment. As government officials work together to stimulate the economy, it's so important that we ensure compliance with our laws to provide an even playing field."
What Has Happened with the Enforcement of the Violations? Nothing
In 2016, a Special Master was appointed by Superior Court Judge Michael Silverstein. The attorney appointed to “oversee” the facility — Richard Land — and the court's involvement was designed to spark the clean-up of the property.
Today, the case is before Superior Court Brian Stern.
According to court records, Special Master Land has been paid more than $265,000.
But seven years after the promises of a clean-up, the site remains "unregulated" — spewed with waste -- some piled 20 feet high.
Rhode Island Attorney General Peter Neronha, whose office is the lead for the state, refuses to answer questions about the failed environmental enforcement.
Special Master Land said in an email to GoLocal this past week said, ‘The business has continued to operate during the vessel removal and planning processes – my appointment as Special Master does not include control of the operations themselves.
“As I indicated, the pre-existing conditions on the site have not been remediated, other than implementation and maintenance of the site controls identified in the original order, but I cannot speak to whether the operations at the site have had any further adverse environmental impact. On this point, you may wish to speak with Rich Nicholson as he may have further insight,” Land adds.
Nicholson is the attorney representing the ownership group of RIRM. GoLocal reached out to Nicholson and the owners. Neither responded to requests for comments.
Land said, “No remediation has taken place at the site thus far. Accordingly, whatever contaminated soil that was at the site prior to my appointment would still be present. Early on, with the involvement of the Court, the decision was made to deal with the removal of the vessels before undertaking remedial efforts on the land due to the fact that the vessel removal efforts would interfere with any remediation.”
Regarding ongoing environmental monitoring and testing on the site, Land confirmed that non has taken place since his appointment. "Any testing was prior to my appointment."
"There have been many complications over the years relating to (among other things) third-party vessels, abandoned vessels, the submarine, and the tug. There have been many cooperative efforts and contentious matters," adds Land.
"Without getting too far into the proverbial weeds, some of the delay resulted from: (a) vessels on-site that were not owned/controlled by RIRM; disputes over the best methodology for removal; installation of necessary infrastructure to pull the vessels onto land; unanticipated developments in connection with removal of the submarine; (e) deterioration of the condition of the tug, rendering efforts to lift and remove it unsuccessful. This is far from an exhaustive list of the issues encountered and worked through among the parties," adds Land.
Why Is Environmental Enforcement Delayed While Vessels Are Being Removed?
DEM's spokesperson said that the agency's hands are tied, citing that the order issued by Silverstein in 2016 precludes them from taking environmental enforcement action.
"Since former DEM Director Janet Coit initiated it in 2012, this case has remained a high priority for DEM. There have been hundreds of documents filed with the court and more than 100 court hearings and status conferences scheduled in the intervening 11 years. DEM and the Attorney General’s Office have appeared in court every time to compel the defendant to correct the egregious water pollution and soil contamination violations on the property. Because of the lengthy timeframe, there is no question that this case has an extremely frustrating history, but we will continue until the violations are resolved and the site is restored to a state of compliance," said DEM spokesperson Michael Healey.
"The 2012 notice of violation (NOV) is what initiated this case. Then in 2013, there was a consent agreement that was a resolution of the NOV (see 1st attachment. The Superior Court action seeking to enforce that consent agreement was initiated in 2015.) When RIRM did not comply with the terms of the consent agreement, DEM/RIAG initiated the lawsuit. So, the follow-up actions that DEM has been taking on the NOV are the actual court enforcement. An NOV is an administrative enforcement action that is superseded by a Superior Court case. There is no NOV pending because the enforcement is a court case and will have a court disposition," added Healey.
The order appointing the special master directs DEM to bring any environmental issues related to the RIRM property to the court for the court to handle rather than DEM initiating any future/additional administrative actions like a new NOV -- the order states:
Except for emergency actions, Rhode Island Department of Environmental Management shall not commence or cause to be commenced any environmental administrative or enforcement actions against the Defendants or their assets without first having notified the Special Master of Plaintiffs’ intentions and the basis therefor, and affording the Special Master an opportunity to bring such matter(s) before this Court with such reasonable notice as the Special Master deems necessary or appropriate under the circumstances.
The Order Has Been Amended in Court Numerous Times - So Why Not Allow Environmental Enforcement
It is unclear why Rhode Island Attorney General Neronha has not sought to bifurcate the order; to continue to allow Special Master Land to continue to push for the removal of the vessels on the site and allow DEM to move forward with enforcement actions.
"All these things should be going in parallel [environmental enforcement and removal of the vessels]," said Gray.
Gray admitted RIRM has played the court for its own benefits -- the operation of an unregulated facility.
"That seems to be the outcome," Gray said.
This story was first published 4/9/23 2:30 AM
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