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High and Dry

The owners of a farm in Foster - looking to expand their business - say they are caught in a bureaucratic Catch 22 - as the Rhode Island Department of Health is refusing to let them sink a mandatory well because of potential contamination from a nearby junkyard, while doing nothing to address the source of the problem.  Jim Hummel hears from the owners for the farm and junkyard, plus the state agencies involved in the case.


It may have been the acres and acres of woods.
Or maybe the pond right in the middle of the property.
Or a rushing brook that you can hear from hundreds of yards away.
Or the combination of all of it: But Jon Restivo and his husband Aden Mott knew they wanted to buy this property in Foster when they visited it in 2014.
Restivo: ”We fell in love the second we saw it. We loved that the house was old., 1811 house, we loved all of the outbuildings, we loved the history.”
They christened it Legend’s Creek Farm and over the past five years they have increased the number of bee hives and now have more than a dozen goats. Mott began making a line of chemical-free products that include soaps, lotions, salves, honey and candles. He has developed a booming internet business based right here. But they wanted to do more.
So he designed and built a 1,600-square-foot barn that would house a commercial kitchen, gift shop and processing center upstairs. But to make breads, deserts and other food products they needed to drill a public well - and get approval from the Rhode Island Department of Health to use it. 
Restivo, an attorney who specializes in commercial real estate, met with top officials at the Health Department in early 2018. He said their response was a foreshadowing of things to come.
Restivo: “I’d say early on there was sort of a negative tenor to the project, that we were told: look into using a kitchen somewhere else first, maybe see if you can produce products, if they’re successful, before you make this investment. We were told that getting a public water supply could run anywhere from $10,000 to $15,000 and are you sure your business can support that right now? We knew what our business could support and so we thought, the cost isn’t the biggest issue for us right now. We know that we need to build this building, we know that this is where we need to go in order for our business to expand and grown in the direction we want it to. Certainly at no point did we get the indication that it was going to be impossible to do.” 
Why the skepticism? The Department of Health pointed to a sprawling, decades-old junkyard next door: Wright’s Auto Parts. Health officials said it posed a significant risk for contamination, even though there is no evidence there is contamination at the site where they planned to sink the well.
Their engineer submitted a 24-page application last summer. It was denied in October, so he went one step further in his argument, pointing to the slope of the property leading to the junkyard - and this stream - called Hemlock Brook - that divides the two properties. And he submitted a revised application in December.
Restivo: “As an initial reaction to the Department of Health’s denial of the first application - where they said that they thought the junkyard was possibly contaminating the groundwater, he did a whole analysis that included Hemlock Brook as a hydrologic break between the two properties. So any contaminants that could be running through the surface water and precipitation and storm water runoff would go into Hemlock Brook away from our property.
Mott: “If you stand and look down there, there’s a huge - it’s like a valley almost - the water runs through the middle of the two properties. And any surface water is going to go down the hill and be carried away before it could even enter our property. “
The Health Department remains unconvinced. It declined our request for an on camera interview, but a spokesman tells The Hummel Reportin an email it has suggested that Restivo and Mott do a ‘hydrogeological investigation’ - simply put, extensive testing deep in the bedrock to see which way potential contaminants would flow. Restivo said his engineer estimates the cost between $40,000 and $70,000 - with no guarantee of approval from the state.
Hummel: “You get the rejection letter, what did you think?”
Restivo: “I mean, we were devastated. Ar that point the building was constructed the septic system was approved. Everything was…”
Mott: “We saved every penny to do this, from the beginning moving back here, was the ultimate goal was to get a commercial kitchen on our farm. That was the goal and when they shot it down, we were upset mostly because they didn’t call the engineer with questions. They didn’t ask us any questions. They just red stamped it. And said no, without giving us a chance to have a discussion with them.”
Restivo: “I remember have a sinking feeling when it came through. I don’t think we even thought it was a possibility that it could get denied.”
Mott: “Based off what our engineer said, they’re not going to deny it, it’s just a way of how to make it work if they had any reservations about it.”
Restivo and Mott have already spent $150,00 for the two applications, engineering and construction of the barn. So Restivo and his engineer met last month for 90 minutes with top officials at the Health Department.
Restivo: “What I saw coming out of that meeting was a real effort by the DOH to try and find a way to say no. They weren’t trying at all to find a solution. They were trying to basically convince me this is never going to happen, we’re not going to approve this. You shouldn’t be trying to get this approved. It was really upsetting. At this point we’re more than a year into the process, we’ve invested a ton of time and money and to have these people not even know why they’re denying it - not even be able to justify the denial. You would think that it would be such a harsh act - because it’s a harsh result for us - that they’d be confident and they would know why they’re denying it.”
Restivo said it is ironic to him that the Health Department is concerned about potential contamination, but not going after the source of the problem - pointing instead to the Department of Environmental Management as responsible for protecting surface and groundwater quality. Restivo noted that Hemlock Brook ultimately feeds into the Scituate Reservoir, the state’s primary drinking water supplier.
Restivo: “That’s what we thought was the most Twilight Zone aspect of it, was they’re saying that they’re concerned about our drinking water to the point where they don’t want us to use it for commercial (purposes), but at the same time they’re saying there’s nothing they can do about the possible contamination of the drinking water - that feeds the entire state, 60 percent of the state gets their water form that stream, goes right into the Scituate Reservoir.”
Hummel: Why can’t they do anything?”
Mott: “They don’t want to do anything.”
Restivo: “I don’t think they’ve tried.”
The Hummel Report discovered the DEM has been investigating the junkyard, based on a complaint Restivo filed nearly a year ago. In December it issued a letter citing the owner with a handful of pollution violations. And just this week, DEM - after further investigation assisted by the federal Environmental Protection Agency - issued a new round of freshwater wetland and water pollution violations - saying the junkyard owner has to restore land it clear-cut when it was increasing the number of cars it was storing - from 500 to 2,000 over the past several years.
Restivo and Mott watched as the trees came down and the pile grew next door.
Mott: “When we signed the contract on this house, that was a beautiful empty field. And we moved in, then shortly after there were thousands of cars on it, in less than a year, just filled up immediately with cars.”
Hummel: “What did you think as you saw all those cars coming in?”
Mott: “We didn’t care. I said it’s his business, this is our business, we believe we want to be left alone. And that’s why we bought this place, was to be left alone. And we left him alone. We left him along until we got our denial letter and found out we have neighbors who have been reporting this guy for years, for every single thing that he does wrong and we stayed out of it, until it affected us financially and we couldn’t stay out of it anymore.”
Restivo and Mott are in a Catch 22 - while the junkyard owners have been cited for violations of state law, a DEM spokesman said that doesn’t necessarily translate into definitive contamination.
“At this point, our inspectors have not documented a release of contaminants from the property that requires a more comprehensive investigation. We have no information to suggest that the junkyard is a major source of contamination — but cannot say definitively that it is clean, either.”
Restivo: “We don’t want contaminated drinking water. Even if we got all of the approvals and we pull water out of there and it’s contaminated, we’re not going to fight to drink it. Our goal is to have clean drinking water. Right now, the Department of Health is convinced that our groundwater is contaminated. And so if the goal is to have clean drinking water, instead of just stopping a commercial kitchen from happening in some corner of Foster, if the actual goal is clean drinking water then there’s got to be some flip side to that policy, that’s not just denying new wells, but also removing the source of contamination.”
Restivo said if the Health Department denies its revised application he will likely appeal to a state hearing officer. But they are frustrated with the process.
Mott: “It makes me not want to do it anymore in Rhode Island. I just said, let’s go, as much as I love the property I’m not going to stop. It’s my life and I’m going to do what I want, And I will just take it to another state and grow my business there.”
In Foster, Jim Hummel for The Hummel Report.

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