Proposal for a New Extraction Ordinance

At the December 8 Town Council meeting, George Tremblay made a proposal (text of that is below) to be submitted to the Town Solicitor and other Town staff for revision into an ordinance to be returned soon for discussion and a vote. The Town Council approved this suggestion. The proposed ordinance is meant to provide some regulation to bridge the period until the State Legislature passes legislation that has been requested by the the Town Council. The Town Solicitor will return as early as the next Town Council meeting with a draft of this proposed ordinance.

George Tremblay provided the following timeline on the recent history of mining regulation in Charlestown

14 April 2014: Council passed a “Resolution Relative to Regulation of Excavating”. This resolution asked the General Assembly to pass enabling legislation that would give Charlestown unequivocal authority to regulate businesses engaged in the extraction industry. The resolution was tabled (not acted upon) by the General Assembly.

12 May 2014: After much testimony by representatives of extraction businesses over likely legal challenges, Council withdrew the detailed extraction ordinance (#364) approved by the Planning Commission, and requested that representatives of local extraction businesses be invited by the Town Administrator to participate in revision of the ordinance in such a way as to protect their interests as well as those of the public, as best as possible.

9 June 2014:  Temporary Moratorium on Permitting and Licensing of Excavation, Quarrying, Mining, and Material Processing Facilities (including expansion or intensification) is extended by Council for 3 months from 9 June 2014. The moratorium allows time to re-write the regulatory ordinance.

8 Sept 2014: The Town Administrator reported to Council that he had received only one communication from a representative of the local extraction operations, and no suggestions for revision of the withdrawn ordinance. Councilor Tremblay then proposed a simplified replacement ordinance to institute regulatory control, with the expectation that further terms might be incorporated incrementally over time, as needs arose.

19 Nov 2014: The Town Administrator informed Tremblay that, while the parties above did not meet collectively, they all engaged in discussions with one another on the issue. They acknowledged that efforts at any regulation would apply only to pre-existing businesses (since new extraction businesses are prohibited), and enforcement of any new regulations would be compromised by the “grandfathered” legal standing of pre-existing businesses. Undisputed authority to hold pre-existing operations to new regulatory controls requires enabling legislation by the General Assembly granting the town unequivocal authority to regulate the industry. A proposal for such legislation is currently being drafted. My motion (to follow) is intended to bridge the gap between the present lack of oversight and future approval of the proposed enabling legislation.

An Extraction Ordinance Submitted for Discussion, Review, and Revision

Given that:

• Only existing extraction businesses would be eligible to apply for a license to operate in Charlestown (new operations are prohibited), and

• A detailed ordinance, such as that withdrawn by the Town Council on 12 May 2014, was viewed as hostile by businesses that have largely been good citizens, and that such an ordinance is likely to provoke litigation, and

• Unequivocal authority to impose detailed terms of regulatory control over the industry will require enabling legislation currently in the making,

• It is proposed that we bridge the gap with a simple replacement ordinance that gives the town supervisory authority over the industry, without undue constraints over conditions of operation.

I move that the following proposal be submitted to the Town Solicitor for his review and revision, in consultation with Town Staff, with the expectation that a revision be returned for discussion and a vote on approval at the next regular meeting of the Town Council:

1. All extraction businesses must be approved for a town-issued operating license, available at a nominal fee and valid for two years.

2. For approval, the applicant and all collaborating investors in the applicant’s business must be identified by the applicant, and must be in good legal standing, as evidenced by a record free of pending legal action to collect on delinquent business debt, free of unpaid taxes, and free of unresolved judicial action emanating from offenses committed in the course of said business.

3. Renewal is contingent upon meeting the above requirements.

4. Licenses are not transferable, and issued only to operators of pre-existing extraction businesses, or their lessees, heirs, and assigns.