A recent environmental award for an East Providence waterfront project says as much about environmental regulation in Rhode Island as it does about the project, and both are good news.
The project at issue was ambitious – remediation of a contaminated 20-acre petroleum tank farm and development into a waterfront residential project. That project, located at Kettle Point on the Providence River, contains over 290 apartment and townhouse residences, as well as a 90,000-square-foot surgical and orthopedic rehabilitation facility, including waterfront open space and a 600-foot public fishing pier.
The project was all the more impressive because the contamination had to be addressed in a way that complied with very strict environmental regulations that impose high standards if residential is to be a permitted use.
The Environmental Business Council of New England has awarded the Kettle Point project its 2021 Brownfields-Remediation Project of the Year. The award focuses on the innovative nature of the “settlement agreement,” which allowed the development of the project to proceed under conditions governing its remediation.
In particular, it was noted that the settlement agreement for the first time allowed portions of the property to be sold and redeveloped independent from the remainder of the parcel, which facilitated financing and phasing of the project. Also allowed was the participation of British Petroleum affiliates, owners of the tank farm, and therefore responsible parties, which had never previously been done but which recognized the contribution of the affiliates to remediation efforts.
It would have been easy for DEM to ... rely on precedent rather than innovation.
Fittingly, the award recognized the project but was presented to those who made it possible, including the developer, Churchill & Banks LLC, which put substantial capital at risk; SAGE Environmental Inc., which designed and executed the innovative remedial approach; DiPrete Engineering Associates Inc., civil engineers for the project; and Orson and Brusini Ltd., whose attorney, Michael Donegan, was deeply involved in the negotiation of the innovative settlement agreement. I am pleased that my firm was also named in the award for its representation of the British Petroleum affiliates.
But perhaps the most notable award recipient was the R.I. Department of Environmental Management, the primary regulator for the project and the one ensuring that it imposed appropriate environmental remediation standards.
While I am usually on the opposite side of the table with DEM, in many ways I thought its award was the most deserving. DEM’s director and legal counsel navigated complicated and stringent environmental laws to allow a settlement agreement to do two things it had never done before in Rhode Island.
It would have been easy for DEM to simply say that while the statute and regulations do not prohibit what you want to do, they do not expressly authorize it, and we will rely on precedent rather than innovation.
That is too often the regulatory default mechanism among federal and state regulators.
Had DEM proceeded on a traditional regulatory trajectory, I have no doubt that such a substantial project would not have been successfully undertaken and completed, and that Kettle Point would not, today, be something of which not only East Providence but Rhode Island can be proud.
Kudos to DEM Director Janet Coit and her staff for choosing regulatory innovation over the regulatory status quo, enabling the developers and their Rhode Island-based team to do what they do best.
Rhode Island is better for it.
John M. Boehnert practices real estate and environmental law in Providence.
