At every level of government, Environmental Injustice runs deep

Assistant Attorney General Alison Hoffman Carney provides a history of litigation against Rhode Island Recycled Metals...

May 21, 2024

**See: Neighbors call for action on RI Recycled Metals and other Port polluters**

“Why not just say to residents today that we will not put in any other asphalt businesses [or] any other businesses that lead to these noxious fumes being in the air that you're breathing in?” asked reporter Tamara Sacharczyk from NBC 10 News about noxious and dangerous emissions in the Port of Providence. “Why not just promise that right now?”

“That's not the way zoning works,” answered Providence Mayor Brett Smiley.

The Mayor's statement is only true in the most rudimentary sense. Outright banning polluting businesses from the Port is not the way zoning works at present. Still, a new Comprehensive Plan could use zoning as a tool to end the expansion of polluting industries in and around the Port of Providence. [See: Will Providence's Comprehensive Plan institutionalize climate and health injustices? and Course correction needed for Providence's Comprehensive Plan]

What is lacking is leadership. The Smiley Administration is choosing to allow more industrialization, despite the negative impacts on community health.

"We have a very unique and important economic asset in our waterfront,” said Mayor Smiley, earlier in the same interview with Sacharczyk. “I think it’s important for economic opportunity that we remain in an industrial zone, but industrial doesn’t mean dirty.”

It’s not just Mayoral intransigence - there’s a system that prioritizes polluting businesses over communities of color. And that system is resistant, if not outright opposed to change.

Last night Alison Hoffman Carney, who heads up the Environmental and Energy Unit at the Rhode Island Office of the Attorney General, spoke to the Washington Park Neighborhood Association about the ongoing litigation against Rhode Island Recycled Metals, one of the major environmental justice offenders in the Port of Providence. The following has been edited for easier reading:

“Pretty much every environmental case you've heard of we've been knee-deep in,” said Assitant District Attorney Carney to the three dozen people in attendance. “Rhode Island Recycled Metals is the case that I've been involved in since I started in office in 2018.”

Attorney Carney continued:

“As you well know, there are problems with the site. Back in 2008, a cap was required on the site because of PCBs and other types of contaminants. Rhode Island Recycled Metals sealed the site. We call it capping. It makes sure that all the contaminants that could hurt people, get into the water, or get into the air are sealed right in. This is a common practice across Rhode Island. I hate to say it, but all of our soils are historically contaminated by the coal industry. A lot of sites in Rhode Island are capped like that.

“When you have a cap like that, there are restrictions. You're not allowed to do certain activities on the site that could disturb or disrupt the cap and expose the contamination. That is what Rhode Island Recycled Metals did originally back in 2010 [or so]. I'm a little mushy on the exact timeline, but it was a long time ago.

“They were purchasing different vessels to scrap, and what they were doing was they brought them right from the river and onto the property by just dragging them and destroying the cap underneath these vessels. They just tore it up. The Rhode Island Department of Environmental Management [DEM] issued notices of violation, telling the company that they couldn't be doing that and that they had to restore the cap. You're also not allowed to scrap vessels the way they were doing it.

“They entered into a settlement agreement and agreed that they would restore the cap and submit permits. All of those things never happened, so our office got involved. I believe we brought the lawsuit in 2016.

“We said, ‘You are a nuisance to this community. You are violating all Clean Water Act. You are violating the Land Remediation Act. You have created all of these problems and you have to correct them.’

“Now there's the legal term, it's called res judicata. It says that once you've brought up an issue and it's been ruled on, you can't bring it up again until there's a new issue. So we are in this world of ‘We brought this violation, they were supposed to abide by the consent agreement, and they didn't.’ That was the cause of action. We said, ‘You created a nuisance. You are violating the agreement that you made. You are violating all of these laws,’ and we pushed to shut them down.

“We requested what's called a receivership. That would mean someone else takes over the property and cleans it up for them, and they might not get the site back in the end. That's up to the court to decide. We did this before a judge and the judge disagreed He didn't think the company needed to be shut down. Instead, he appointed a Special Master to oversee the whole thing. The Special Master makes sure the company is doing the right thing and on time. The Special Master is paid by Rhode Island Recycled Metals via an escrow account that we set up. The problem is that the company is still in control of the site and in charge of doing the remediation, and they fight us every step of the way.

“Rhode Island Recycled Metals sunk a bunch of vessels into the river, impacting navigation and possibly impacting pipelines that run underwater. The company had to be careful about how the sunken vessels were removed. Negotiating the removal process took a long time because it was expensive. What we were asking, and what they ultimately did, is they removed two out of the three vessels. There was a tug, a submarine, and a ferry that were sunk.

“The court ordered the vessels out of the water but when you're bringing up those vessels, you're going to mess up the land cap again. So bring the vessels up, said the court, then we'll do the land side. We have been arguing over the vessels for a long time. We have two of the three out. We finally had it all working, but we ran into an issue with the tug. It is stuck in the mud, and right on top of a pipeline. It's not a natural gas pipeline, we think it's water. It's not dangerous in that sense.

“Rhode Island Recycled Metals tried to bring the tug up the way that we negotiated, putting big air sacks inside to essentially pop it up into the water, but that didn't work. So they had to come in and say, "‘We have to do a different way. We have to have to chop it up.’ Because of the process, and the dangers associated with that, we had to get special permitting. So we had to get the Army Corps of Engineers to sign off and get special permits. They issued the permit in January of this year. It took us a long time to get the approval. Now we're waiting for what they call the dredge window. We can't do this kind of work in the river until July. They're hiring a marine contractor. Via court order, Rhode Island Recycled Metals was required to hire the marine contractor by May 28th. They already have a contractor - this is finalizing the contract - and then we will start paying that company. The marine contractor is also apparently in Baltimore trying to deal with the bridge. There are limited marine contractors. That's where we are in terms of the tub removal. We are just waiting for the time that we can jump into the water to do it.”

Linda Perri, President of the Washington Park Neighborhood Association, noted that while all this was going on, the owner of Rhode Island Recycled Metals bought up land in the Port from Cumberland Farms under a different LLC.

“We can't stop people from buying land,” noted Attorney Carney. “What we can do is stop them from an activity that we can't permit, that's what we can do.”

Assistant Attorney General Carney continued:

“Last year I argued in court that Rhode Island Recycled Metals needed to have standing fines. They weren't submitting things on time. I argued that we needed the court to make sure that these things are moving forward and that there is no intentional delay.

“When the court took control over the site and appointed a Special Master, they bound DEM's ability to do anything at the site. If we want to issue a violation or if there is some problem, we have to go through the Special Master and the court to do that. What Judge Brian Stern ultimately did, after hearing our frustration about the timeline and the issues of getting this going, he gave it back to DEM. He took away the court's authority over land remediation, so DEM issued a violation to Rhode Island Recycled Metals in December, for $25,000.

“In the six years I've been involved, I have never seen Rhode Island Recycled Metals submit something on time. Since the fine, they have been on time with everything. We are finally making real progress. We have the land remediation side done. Because of the fire - which by the way, we're waiting on the fire marshal's report because there's nothing that we can act on without more information from the fire marshal - but because of the fire, there was some additional testing DEM required.

“So that site investigation should be closed and we should be moving forward with the actual remediation once that tug can come out. This is all happening by the end of this year. I will say, with great hope, that everything is really on time finally. I don't say that lightly because I understand how long it's taken and how frustrating it has been. I've been there. I don't say this lightly. It is coming to an end.”

Environmental Justice legislation has three times passed the Rhode Island Senate, but not the House. As the Rhode Island General Assembly begins to wrap up for the year, the House has not even scheduled the legislation for a hearing…