2017-08-18 / Community

Selectmen approve notice of violation

By Duke Harrington Staff Writer

ARUNDEL — Following a decision of the Arundel Planning Board last week to again deny a conditional use permit to Dubois Livestock & Excavating Inc. for its composting operation located at 2 Irving Road, selectmen voted unanimously Monday, Aug. 14, to issue a notice of violation.

The notice would also include wording that, if issues are not corrected within 30 days, court action to shut down that portion business would be initiated.

At its July 27 meeting the planning board unanimously denied, an operating permit to Dubois. That denial was based on a June 26 letter to the town from the Maine Department of Environmental Protection (DEP) which outlined “14 specific violation” of state regulations at the property. Because of that letter, town code enforcement officer Jim Nagle declined to issue a letter of his own to the planning board clearing the Dubois property for local permitting.

That letter from Nagle remained the only request from the town allowed under a June 2016 consent agreement hammered out in Superior Court following years of conflict between the town and the Dubois family business.

Representatives from Dubois argued before the planning board Aug. 10 that the town was compelled by the 2016 agreement to issue the permit.

However, the board reiterated its position that, based on the agreement, they could only issue the permit with a clearance letter from Nagle, and Nagle could not pen that letter until DEP assured him Dubois met all state regulations.

“Basically, the planning board stuck to its guns,” selectboard vice chairman Dan Dubois reported before Monday’s vote.

An Aug. 7 letter signed by company president Randy Dubois laid out the company’s interpretation of the consent agreement.

“[It] removed all discretion of the planning board in relation to the granting of the ‘permit’ to Dubois Livestock,” the letter read. “The unequivocal provision left the Arundel Planning Board, with the ministerial duty to grant Dubois Livestock’s permit.

The planning board was under a duty to either ‘deem as satisfied’ or ‘deem as inapplicable’ all performance criteria for the issuance of the permit. Again, the planning board was duty bound under the consent agreement to grant our permit.”

Town Manager Keith Trefethen said Monday that argument did not hold up.

“It was laughable as far as I’m concerned,” he said. “When you read that consent decree , it clearly tells them what their procedural process would be. Unfortunately, we now have a local business that has been in operation for generations that is in danger of losing the product they have been making.”

“I’m pretty discouraged, too,” Dan Dubois said. “I think we gave them an opportunity to get this squared away. It’s too bad. I certainly would like to see this business continue.”

“I think it’s time to go back to the courts,” selectman Velma Hayes said.

The Dubois family has run a composting business on its 5.9- acre site since the early 1980s and has argued its operation is a “grandfathered use” despite a zoning change made by the town several years ago. Dubois first obtained a conditional use permit from the town in 2000, allowing it to conduct commercial composting operations in the town’s R-4 residential zone. That permit is due for renewal every three years and was most recently reissued in February 2011. However, that renewal came with conditions set by the planning board, namely that Dubois allow annual inspections by Town Planner Tad Redway and by March 1 of each year it submit a list of all materials, and the tonnage of each, taken in for composting during the previous year.

Dubois subsequently refused both conditions, claiming local permitting requirements for their operation were at odds with state law, which, they argued, holds jurisdiction. The company has thus operated without town permits since 2011.

Much of the subsequent protracted legal debate over Dubois’ composting has centered on what constitutes a farm. That question was complicated in 2014, when an amendment to the Maine Agriculture Protection Act went into effect. It added manure and compost to the statute’s definition of “agricultural products.”

After the town pulled Dubois’ 2011 permit, upholding the decision at the board of appeals hearing in January 2013, the family appealed in Superior Court. That led to a November 2014 ruling, in which the court sided with the town, saying local ordinances can be enforced because they are not stricter than, or inconsistent with, the state Solid Waste Act.

However, despite the order, Dubois representatives continued to refuse municipal inspectors access to the site, although they did eventually file for a new permit.

At an Aug. 13, 2015 meeting, the planning board voted 6-0 — with board member John der Kinderen recusing himself as an abutting property owner — to deem Dubois’ new application incomplete, because “numerous items were not submitted.”

That decision was disputed within the 30 days allowed by state statute. However, at a hearing before the Arundel Board of Appeals on Sept. 29, 2015, Dubois family members and representatives walked out of the meeting, saying they understood it was called to take public comment on the case, not to conduct an actual hearing on his company’s administrative appeal.

Less than two weeks after the appeals board walkout, complaints of a rancid odor wafting from the Dubois property set phones ringing in the Arundel town office from as far as Old Orchard Beach.

However, what was done to cause that odor, and if it was a violation of any kind, remains unclear to this day. Trefethen said at the time he believed Dubois turned some of the compost it makes and spread it out on its fields. But without being able to send an inspector, it could not be determined if Dubois spread uncured compost, or took new raw product, from more than 29,000 tons, including shellfish entrails, it is allowed annually.

The June 2016 consent agreement compelled Dubois to file a new application for a conditional use permit from the town before July 1. That deadline was met.

In a July 28 notice to Dubois, Redway said the application was denied for lack of a letter from Nagle attesting to the fact the site was in compliance with its solid waste permit from the DEP and all other “pertinent state regulations.”

“As part of the court decree, they had to be in compliance with state regulations in order to get the required letter from the town,” Trefethen said. “That letter was never given because there were numerous notices that have been issued to Debois in reference to DEP violations. The DEP gave them up to 10 days to make a correction for each of the notices they had. We are not aware that any of those issues have been rectified.”

Redway said Nagle has been able to conduct the annual inspection allowed by the court order. However, that review was limited to walking the road frontage of the property.

The planning board also objected to the site map provided by Dubois as part of its filing.

“Please be advised the reduced map was very difficult to read and missing a title block verifying the scale, the name of the surveyor of preparer, and the date the map was prepared,” Redway wrote to Dubois. In the June 26 DEP letter, Environmental Specialist Michael Clark said state inspectors were repeatedly denied access to the Dubois property, finally having to obtain permanent injunctive relief from the court in February.

On April 11, and again on June 8, 19, and 20, DEP inspectors, responding to odor complaints, deemed the downwind strength of the smells coming off the Dubois compost fields to register “a four on the modified five-point odor intensity referencing scale,” Clark wrote.

Earlier, on March 24, DEP responded to a report of “fish sludge” spilled by a Dubois truck on Fletcher Street in Kenenbunk, near the turnpike overpass. Because the material was presumably bound for the Dubois farm, and because liquid waste is prohibited, DEP asked for detailed information on what the company was transporting.

“Dubois responded on April 5 via email and stated, “If and when we secure deliveries with our trucks is not a concern of the DEP in relation to your inspection of the facility.”

“The nature and circumstances surrounding the violations discovered has led DEP to conclude that final resolution of this matter may include monetary penalties as part of a civil penalty action,” Clark wrote to Nagle.

Attempts to reach Clark at the DEP Tuesday were unsuccessful. Rick Dubois declined comment Tuesday on the vote, referring calls to company spokesman Sol Fedder. Attempts to reach Fedder were unsuccessful.

The board’s decision Tuesday was preceded by a 30-minute closed door meeting with town attorney Leah Rachin, of the firm Bergen & Parkinson.

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