After more than two years, residents of Newport’s west end may soon get to speak their piece on the River Metals Recycling plant explosions that they say have been affecting them for years.
Recent findings in the case Commonwealth V. River Metals Recycling, which first saw the light in Campbell County District Court Judge Cameron Blau’s courtroom in January 2021, could lead to a bench trial and Newport residents getting to share their stories.
Newport resident Jeff Zemanek lives roughly a quarter of a mile from River Metals Recycling, also known locally as RMR, and feels explosions from the plant roughly once a week.
Zemanek has lived in his home for over nine years and said he has felt explosions as often as three times a day. He has shown up to many of the court hearings in support of the lawsuit.
“It’s been around 50 to 60 explosions we’ve documented every year for the last few years,” Zemanek said. “That’s been pretty consistent in that range.”
Zemanek said the noise from the explosions is not necessarily what concerns him. It is his house shaking from the blasts.
“I think what has to really be made clear is, yeah, it’s very disturbing when you hear the noise, the explosion, and so forth because you don’t know when it’s coming,” Zemanek said. “It’s very sporadic; you jump out of your seat, pets go crazy, and everything else. But it’s the concussion from the blast. It’s how it shakes your house.”
He said that concussion is what causes damage to the surrounding homes.
On March 31, Blau overruled the arguments made by RMR attorneys for the case not to go to trial.
RMR’s representation argued that part of a Newport ordinance regarding maximum permitted sound pressure levels in decibels was “unconstitutionally vague.”
Blau ruled that it was not.
Additionally, RMR’s attorneys argued that the same ordinance was “unconstitutionally overbroad.” Blau sighted Stinson v. Com., which said that the United States Supreme Court stated, “outside the limited First Amendment context, a criminal statute may not be attacked as overbroad.” Blau ruled that no first amendment issues were raised related to the ordinance.
Lastly, RMR’s representation said that the Commonwealth failed to establish that the technical analysis underlying the criminal charges against them could not comply with the local ordinance and said that even if they did conform, it constituted a pre-existing, non-conforming use.
Blau determined that this issue was prematurely raised, and he lacked the authority to rule on the motion until after a conclusion by the Commonwealth’s case-in-chief.
A case-in-chief is the portion of the trial that a party presents the evidence upon the strength of which it hopes to convince the trier or fact to render a verdict favorable to its side.
During the March 31 status hearing, RMR said they were not allowed to dispute whom the city hired to measure the sound decibel. Blau allowed them to do so and set a review for May 30, where it will be determined if the case goes to trial.
As the defendants in the case, RMR was allowed to choose if they wanted a jury or a bench trial. They selected a bench trial conducted by the judge alone to determine the facts of the case.
Newport City Commissioner Ken Rechtin, who has worked with residents throughout the process, said that Blau’s ruling was a victory.
“This is a victory, not only for the city of Newport but all the cities in the Commonwealth, that our city laws are constitutional, our zoning is constitutional, our noise ordinance is constitutional,” Rechtin said. “I commend Cameron Blau for his decision that this is not unconstitutional.”
Rechtin added that though this was a win for the city, fundamentally, they are “fighting for the quiet and comfort of our homes.” Rechtin lives about one mile from RMR and understands where other residents come from. He said he thinks they will have their day in court.
“I’m really enthused,” Rechtin said. “I cannot wait for the opportunity to have citizens one after the other in the witness box in front of Judge Blau and tell him the effects that this has had on their lives, what the explosions do when things rattle off of their shelves, and how their house shakes. When suddenly they’re disturbed or woken up.”
Annette Kitchen is one Newport resident who has been patiently waiting alongside Rechtin, helping to get the case heard and keep her fellow residents up to date.
Kitchen moved to the Clifton neighborhood in Newport in 2013 and said she gradually started noticing her house vibrating and shaking. At the time, she thought it was an earthquake.
Through attending a Clifton Neighborhood Association meeting, Kitchen found out that explosions at RMR were causing her home to rattle.
Fast forward to 2019, when the Clifton Neighborhood Association hosted RMR representatives to talk about the explosions at their meeting. Kitchen said they agreed to certain things that would help prevent explosions, such as a pre-shredding process and supervisory oversight before an item went into the hammermill, among other things. She said things went silent for about three months and then resumed.
In March 2020, Kitchen said the Clifton Neighborhood Association voted unanimously to create a volunteer citizens group to try and solve the problem.
She said residents are impacted in many ways.
“Folks have got stress, anxiety, just extreme fear of their home collapsing because a lot of these homes are extremely old,” She said. “Residents have reported the foundation’s crumbling. Residents have reported their ceiling falling immediately from being the bullseye target of an explosion. We’ve got homes physically shaking; people working from home have reported their computer monitors shaking. We have had animals frightened, scared.”
One of the most recent explosions both Rechtin and Kitchen noted occurred on March 27. Kitchen recalled the exact times she heard the two blasts, one at 7:39 a.m. that she said jolted her awake and the other shortly after at 7:47 a.m.
“The second one at 7:47 a.m. was extremely violent, to the point that the entire west side of my home shook, and again, another piece of artwork fell on that exact side,” Kitchen said.
Rechtin said the explosions like the one that occurred on March 27 knock things off the shelving in his home and said these are significant sound waves that come through their houses.
In August 2021, RMR agreed to build a sound barrier to reduce noise that is part of its daily operations. The wall was created to reduce noise by 85%; however, residents say it has not worked.
“We inquired if this was field tested or paper tested, and it was just on paper, and they would not allow the audience to ask a lot of questions in regard to who designed it, how they came up with that height, etc.,” Kitchen said.
Zemanek, who has been working with Kitchen since around 2018, said he doesn’t always hear noise from RMR but still notices the “concussion” his house receives from cracks forming on the walls.
“A lot of times, it’s correlated to, ‘Well, you hear fireworks go off on Friday nights from the Reds game.’ That’s entirely different,” Zemanek said. “One, you know a Reds game is playing, and it doesn’t have the huge concussion that this does. It’s pretty unbelievable how it shakes some houses.”
Nine years ago, Zemanek said he bought his home for the view of Newport and Covington, but his house also looks down upon RMR, and he admitted he has considered moving over the years.
“It’s just a great piece of property,” he said. “I kept thinking they’d come to their senses and just be good neighbors and at least follow their (standard operating procedure) and stop this from happening, but they don’t seem to care.”
The case that has been through the court since early 2021 deals with the noise from RMR, but residents say the pollutants and particulate matter produced during an explosion are also problematic. That matter is being dealt with separately, though Zemanek, Rechtin, Kitchen, and other Newport residents are entwined with both.
Come May 30, when Blau makes his final ruling to determine if the case goes to trial, what outcome are residents hoping to see?
Kitchen said it’s elementary.
“We simply want RMR to modernize their operations,” she said. “Stop operating like it’s 1960; operate like it’s 2023. So, these explosions and particulate matter can stop, and they can coexist in our community. We believe recycling is important, but it has to be responsible. It has to be safe, and being in this close proximity to homes, it has to be contained.”
Containment is a running theme of what residents hope the outcome will result in. They would like to see RMR’s open shredder enclosed.
“Get into the 21st century as far as a facility that meets all the current requirements instead of saying that ‘we’re grandfathered in,'” Zemanek said. “Open shredders are a thing of the past. Just because they’re grandfathered in doesn’t mean they can do it forever.”
Rechtin agreed. He said he hopes that when the court case is finalized, it will result in a court order requiring RMR to operate a totally enclosed facility.
