The East Providence, RI, Zoning Board of Review will resume the hearing next month, after considering a request by a lawyer to cross-examine expert witnesses who went before the board earlier this week.
The long-delayed hearing into whether Pond View Recycling should get the city's permission to handle 500 tons of debris a day officially got under way Aug. 13, with Pond View's owner telling the Zoning Board of Review that his is an environmentally friendly company that has already proven itself in every way.
The hearing -- originally set for March but postponed several times, in one instance because one abutter had not been notified -- is on a request by Pond View to modify the conditions set down by the board when it approved a variance for the firm in 1998.
One of those conditions was that Pond View not accept any more than 150 tons of debris on any given day. Although the state Department of Environmental Management issued a license to Pond View earlier this year to more than triple the amount of material brought to the site, DEM made its approval contingent on Pond View getting the permission of city agencies.
During the Zoning board meeting, aware that both opponents and supporters of Pond View are anxious to have the matter resolved, board members unanimously rejected a petition from Pond View's attorney, William P. Maaia, asking that the firm be allowed to withdraw its petition for the variance "without prejudice" so as to enable him to try first to appeal an earlier decision by the city's zoning officer.
The move, if it were successful, would have put the board in the position of declaring that the expansion was such a "minor modification" to the existing variance that a new hearing was not even necessary, something that members of the zoning board were clearly uncomfortable doing.
"I feel that the public has a right to be heard, and if we upheld the appeal we'd be shutting out the public," said committee member Jude Kostas.
"I agree," said fellow member Eugene Saveory. "I'd like to see us move forward and get it done."
To make the case that Pond View has been indeed a good neighbor whose operations have not created all the noise, dust and water problems that opponents have often alleged, Maaia presented two expert witnesses and nearly a half dozen analytical reports that he said backed Pond View's assertions that the effect on the environment and on the neighborhood has been minimal.
George Wirsen, an environmental consultant and director of solid waste operations for Green Seal Environmental Inc., a Sandwich, Mass., firm hired by Pond View, produced a study suggesting that the amount of dust picked up on the bodies of selected employees at the site was less than half of what would be considered dangerous under federal guidelines.
He said he also found that the amount of noise from Pond View's grinding machines, picked up by monitoring devices on the edge of the property, was less than the noise generated by cars and trucks passing along nearby Roger Williams Avenue.
Likewise, another consultant, Mark Speer of BETA Engineering, said tests on the water quality at Omega Pond found that water leaving the pond is "pretty much the same" as water entering the pond, and that he found no evidence that the groundwater was negatively impacted by the presence of Pond View.
Later, Pond View president Ken Foley testified that he has invested so heavily in new equipment to make his operations quieter and cleaner that he doubts that neighbors would be able to tell the difference were his operation to expand to 500 tons.
He said the impact on traffic will also be less as a result of his getting the Providence and Worcester Railroad to provide him with a railway spur that would allow a train to come in once each day to carry off material by rail.
Foley, who now has 65 employees, said he could add 10 to 15 more if the board granted the variance.
One major issue that presented itself last night was whether Michael Horan, an attorney for some of the opponents, should have a right to cross-examine Foley's expert witnesses.
Two board members -- Saveory and Antonio Cunha -- said that in all their years on the board, they never had heard of such a thing, saying that if opponents wanted to rebut expert testimony they should bring in their own experts.
But city solicitor and acting City Manager William P. Conley Jr. said the board is a quasi-judicial body, and he believed that refusal by the board to allow for cross examination could present a "fatal defect."
The board resolved in the end to have the two lawyers present legal briefs as to whether experts should be cross examined, and set a date for continuance to Tuesday, Sept. 23.
Board members also stipulated that a copy of all the technical reports that have been presented into evidence so far be given to Horan, and that two more copies be made available at City Hall for other interested city residents to review. Providence Journal