Legal Terrain

As America’s cradle of the Industrial Revolution, southern New England experienced early, rapid, and sustained growth of manufacturing industries beginning in the late 18^th century and through the first half of the 20^th century and the end of WWII. Beginning with Samuel Slater’s cotton mill in Pawtucket, Rhode Island, the textile industry flourished and spread along the Blackstone River and other rivers in southern New England, where wealthy merchant traders financed mill construction along the rivers as a power source.  Over the following decades, mills developed to manufacture cloth from cotton and wool, leather and rubber goods, shoes and boots, silver, metal machine tools and engines, and much more.  Over the same long period, southern New England’s inland waterways were also used to dispose of liquid and other manufacturing and domestic wastes.

As manufacturing growth in New England began to wane and shrink in the last half of the 20^th century, those industries and the accompanying jobs moved to low-wage states in the south and offshore to Asia. While many old mill buildings or sites were remediated and repurposed for offices, housing, and even schools, the mill ponds and rivers were left with the legacy of contamination from the historic industrial activities supported by those waterways. Absent the forests, farms, and fields of pre-industrial times, little vegetated land remains to absorb phosphorus-laden runoff from surrounding development, leaving the mill ponds and waterways unprotected from phosphorous pollution. Algae blooms grew in frequency, depleting the waters of oxygen as the blooms died off. In addition, bacteria from animal waste and leaking sewers or combined stormwater/sewage impacted waterways and ponds.

A recent article in the Rhode Island Current by Nancy Lavin highlights the latest effort to address what was left behind long after the prolonged period of industrial growth faded from our memories.

Building on earlier efforts by EPA Region 1 to address historic pollution in the Charles, Neponset, and Mystic Rivers in Massachusetts, the Rhode Island Attorney General (“RIAG”) and the Rhode Island Department of Environmental Management (“RIDEM”), acting under delegated authority from EPA, announced a program to address contamination in mill ponds and waterways. The effort focuses on the industrial, commercial, and residential properties along the common border of Providence and Cranston, encompassing Mashpaug, Spectacle, and Tongue Ponds, covering some 762 developed acres and including the site of the former Gorham Silver manufacturing plant and part of an Environmental Justice area previously designated by RIDEM.

Industrial and commercial properties that predated federal and state stormwater permit requirements adopted in 1993 were exempt from requirements to treat stormwater runoff before discharging to those waterways and ponds. The requirements could be avoided  if the property owners maintained the property in its pre-1993 condition without substantial redevelopment. The RIAG and RIDEM initiative utilizes the Residual Designation Authority (40 CFR 122.26 (a)(9)(i)(C) and (D)) to cover properties surrounding the ponds developed long before 1993.

The RIAG’s January 31, 2024 Petition seeks a determination from RIDEM that discharges of stormwater from unregulated sources in the watershed “contribute to violation of water quality standards” in the ponds. The RIAG seeks implementation by RIDEM of a stormwater General Permit addressing the historic uses of the surrounding properties that contribute to stormwater runoff in the ponds within the watershed, similar to the General Permit required for post-1993 industrial and commercial development. This initiative addresses pollutants added to the ponds in stormwater runoff based on Total Maximum Daily Loads (“TMDLs”) previously adopted to address phosphorous leading to algae blooms, which deplete the waters of oxygen needed to support fish and bacteria and render the waters unsafe for swimming.

If this initiative is successfully implemented, it should go a long way toward improving water quality in the ponds by eliminating or at least reducing the frequency of algae blooms, perhaps making these Class B waters fishable and potentially swimmable. However, the legacy of contamination in pond sediments, particularly from metals dating to the 19^th century, will likely remain.