Donegan says attorney general may intervene in debate

The location of a proposed Med Recycler facility has caused debates in neighboring towns of East Greenwich and West Warwick.

 

EAST GREENWICH — Town Council Vice President Michael Donegan believes Rhode Island Attorney General Peter Neronha may intervene in the debate over a proposed medical waste facility center. 

Two weeks ago, in a letter addressed to the Rhode Island Department of Environmental Management (DEM), the attorney general raised “numerous procedural and substantive concerns” about the medical waste facility hoping to move into an office park on the border of West Warwick and East Greenwich. He requested DEM halt its review of MedRecycler’s license application “until the proper technology analysis is conducted and all required certifications are obtained.”

“The regulatory process required in our state to approve facilities that emit pollutants into our environment has to be robust and complete to protect public health and the environment,” Neronha said. “In matters like these, involving untested technology, strict adherence to the regulatory scheme’s substantive requirements, and going beyond the minimum public input required, is absolutely critical.”

The attorney general’s recent comments come on the heels of outcry and concern from community members, local officials and state legislators over the past several months, however. It’s an issue that many residents have been living and breathing every day, according to Donegan.

The waste-to-energy plant proposed for 1600 Division Road is being challenged on both a litigation front and an administrative front. 

“As you’re aware, if you’re engaged in this issue, the town has indeed appealed the air permit that was issued for the MedRecycler facility,” Donegan explained to community members during Monday night’s town council meeting. “That litigation is pending.” 

“On a parallel track, DEM issued its notice of intent to issue a solid waste facility license,” he continued. “That involved both an informational Q&A session with the developer, and then a second public hearing where the DEM received substantive comment from the public.” 

Last month’s public hearing on the matter drew out dozens of comments from concerned community members, as well as hundreds of virtual attendees, according to Donegan. 

“There was a lot of comment from all corners,” he said, “including a business in the building where MedRecycler would go.” 

The company plans to dispose of medical waste through a process known as pyrolysis — which indirectly heats the waste in the absence of oxygen. This way, rather than burning the waste, it would be evaporated into syngas. MedRecycler claims this process is safe, though some concerned community members said they don’t feel comfortable with this facility being so close to a local daycare facility. 

If MedRecycler receives the green light to move forward, the facility will be able treat up to 70 tons of regulated medical waste per day. According to MedRecycler, emissions from the facility will be less than the equivalent of four cars traveling 11,500 miles per year at 55 miles per hour, though there are fears of who could be adversely affected if something were to go wrong. 

Both Rep. Justine Caldwell (Dist. 30 – East Greenwich, West Greenwich) and Sen. Bridget Valverde (Dist. 35 – East Greenwich, North Kingstown, South Kingstown, Narragansett) have come out against the proposed medical waste facility, and voiced concerns at the public hearing. 

The attorney general’s recent request to press pause on this issue is significant, according to Donegan.

“I want to note that that’s a little bit more than political speech,” Donegan said. “The [Office of the] Attorney General has within its organization a position called the environmental advocate. That position is empowered by statute to intervene in litigation and administrative proceedings like this, in the interest of the public and protecting the environment.” 

“That statement isn’t without its implied threat,” he added. “The attorney general may in fact intervene there.

According to Donegan, in regard to the status of the applicant’s solid waste facilities license, DEM is obligated to issue a response to public comments and make a decision 90 days from the close of the last hearing.

If the solid waste facility license is denied, the applicant can appeal to the administrative adjudication division, according to Donegan. If approved, depending on what conditions are imposed, Donegan expects the town and at least three other law firms to oppose the decisions. 

It’s also possible, if the application is approved, that the attorney general might intervene at this point. 

On the legislative front of this issue, a status conference with Judge Taft-Carter is scheduled for May 7, according to Town Solicitor Andrew Teitz. 

According to Donegan, the attorney general’s environmental advocate is also empowered to intervene on this front as well.

The issue of the proposed medical waste facility was added to the agenda purely for the purposes of discussion on Monday night, during which Town Council President Mark Schwager questioned the concerns laid out by the attorney general. A lack of necessary state planning and municipal zoning approvals were a few of the comments he made on the issue.

The attorney general’s argument there, according to Donegan, is that when an applicant applies for a disposal facility license, they have to go before the statewide planning commission to ensure their project is consistent with other state laws and programs. Part of that process, Donegan said, includes reaching out to the host community, getting final approval and even going to the abutting community. 

The legal arguments being put forth against the project are a bit ambiguous, since they currently concern themselves with the wording being used.

“The legal issue around that is whether or not this facility is a solid waste disposal facility, distinct from a solid waste management facility,” Donegan explained. “The statute reads management facility, and there isn’t a disposal facility defined in the statute.” 

“A landfill is defined in the statute, so the argument that our council has made is that disposal is defined in the stature as basically the final resting place of the waste,” he continued. “Their argument is that a disposal facility means a landfill. Our argument is they already used the word landfill and defined it, and rules of statutory construction are clear–they know if they meant landfill, they would have used the word landfill.”

Donegan believes there’s many arguments against this facility, though, like the current administrative process. Testing is happening after the fact, he said, going unchecked until after everything is already in place. He believes there’s procedural arguments to be made.

“Frankly, if we don’t win that, it cuts the public out of the actual permitting process,” Donegan said. “What’s to stop DEM from issuing permits that just say, ‘Here’s a permit to construct and operate, however, here are the hundred things that you have to comply with later?’ And then the public never sees them.”

The town council had a packed agenda on Monday night — including an annual report on prevention, mental health and diversity programs from Director of Substance Abuse Prevention and Mental Health Services Bob Houghtaling — but additional time was carved out at the end of the meeting to discuss the ongoing medical waste facility issue.

“It’s a very complicated issue, so we need to dig into it,” Schwager said at the close of the council meeting. “It’s a long road here, and I think the more we know, the better.”

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