Buckeye Brook pollution issue appears headed to court

01:00 AM EST on Tuesday, January 31, 2006
Providence Journal Staff Writer

WARWICK -- A dispute between two state agencies over chemical pollution in Buckeye Brook seems poised to move from negotiation to litigation.

For more than a year, the Department of Environmental Management and the Rhode Island Airport Corporation have unsuccessfully attempted to negotiate the terms of a permit regulating T.F. Green Airport's discharge of polluted storm water into Buckeye Brook.

On Nov. 12, 2004, the DEM issued a permit regulating Green's discharge of glycol-based aircraft de-icer. But the Airport Corporation challenged every provision in the permit, alleging there was "no basis" for the proposed cleanup standards and that the corporation has "no control" over where and how its airline tenants use de-icing chemicals.

Since then, each agency has stated the terms of a consent agreement that would settle the issues from its point of view, without going through a formal hearing process in which witnesses would give sworn testimony.

On Jan. 18, the DEM hearing officer assigned to the case, Joseph F. Baffoni, issued an order that anticipated the Airport Corporation board's voting to approve or reject the DEM's version of a consent agreement at its meeting last Thursday.

But no decision emerged at that meeting, after an Airport Corporation lawyer briefed the board behind closed doors.

The corporation issued a statement Friday saying the board had heard "a monthly update" on the dispute and had "encouraged staff and counsel to work cooperatively with DEM to bring the matter to a satisfactory resolution."

Yesterday, Gail Mastrati, DEM's spokeswoman, said there was no immediate change in her agency's posture on the dispute.

"We're still awaiting final comments on a draft agreement," she said.

A conference call for the lawyers involved is scheduled for 11 a.m. tomorrow.

Angelo Liberti, the DEM's chief of surface-water protection, said on Dec. 14 that negotiations seemed likely to produce an agreement within weeks or give way to an adversarial hearing.

According to the case file at the DEM, the Airport Corporation asked for a hearing on Dec. 13, 2004, invoking its right under state law to have a hearing within 90 days of being issued a notice of violation. Later, the agency waived its right to a hearing and entered into talks in which it attempted to ease the restrictions that DEM wanted to write into a storm-water discharge permit.

In the interim, the Airport Corporation is operating under the terms of a 1987 permit that regulates just one of 18 discharge pipes at Green.

The airlines spray de-icer at Green to ensure that planes can take off safely in winter. Some of the material is washed away by storm water, which drains into Buckeye Brook, a waterway that crosses airport property and empties into Narragansett Bay at Mill Cove.

Airport neighbors say the de-icer causes noxious odors as it breaks down in the Buckeye Brook watershed, and that by depleting oxygen in the water it harms the annual herring run between the Bay and such inland freshwater bodies as Spring Green Pond and Warwick Pond.

The Federal Aviation Administration is at work on an environmental study into further expansion at Green, a program calling for longer runways and twice the number of jet gates in the terminal. The environmental study sets a "benchmark" on existing pollution that planners use when judging whether one expansion scenario has environmental consequences or benefits when compared with another.