13 October 2015: DEP takes enforcement action, issues a Notice of Violation

At long last, the Maine Department of Environmental Protection has taken decisive action by issuing a Notice of Violation (EIS #2015-006-L) to  Pleasant Pond Mill LLC (PPM, as the record owner of the Clary Lake dam), Paul A. Kelley, Jr., as former manager and sole member of PPM, Aquafortis Associates, LLC (AQF, as an entity asserting flowage rights), and Richard L. Smith, as manager and sole member of AQF. The Notice of Violation (NOV), issued on September 28, 2015, alleges that each day since at least October 1, 2014 constitutes a violation of the Water Level Order (WLO) and a separate offense. In addition to the NOV, the Department “retains its right to enforce its water level order by any other appropriate remedy, including, but not limited to, entering the dam premises to carry out the terms of the water level order.” 

The cover letter accompanying the NOV states that the NOV “relates to violations
documented through site visits by Department staff on various dates and through
correspondence with the Department” and that the “nature and circumstances surrounding the violations discovered has led DEP to conclude that final resolution of this matter should include monetary penalties as part of a civil penalty action.” Monetary penalties in these circumstances are not less than $100.00 and not more than
$10,000.00 per each day of the violation, in accordance with 38 M.R.S.A. § 841(3). That would sure make me sit up and take notice!

The following document distributed with the NOV describes the Department of Environmental Protection’s Administrative and Judicial Statutory Enforcement Authorities which makes for pretty dry reading, but I include it here for completeness:

Attorneys for PPM and AQF have already filed a response to the NOV in a document dated October 8, 2015. Their response cites the ongoing appeal of the WLO in Lincoln County Superior Court and lists a number of reasons why DEP should stay enforcement of the WLO. I’ll let you come to your own conclusions about the veracity of their arguments:

Given what has transpired over the past 4 years, I would be very surprised if DEP, having now forcefully taken action, was willing to voluntarily stay their own Order. I therefore expect counsel for PPM and AQF will have to petition the Lincoln County Superior Court to stay the Order.

We’ve waited a long time for the Department to take this action, and I for one can’t wait to find out what happens next. On behalf of the Clary Lake Association I’d like to thank the Department of Environmental Protection for taking this decisive action. I also wish also to thank the Town of Whitefield Select Board and Representative Deb Sanderson and Senator Chris Johnson for their respective letters to the Department and others, calling for enforcement action.


4 thoughts on “13 October 2015: DEP takes enforcement action, issues a Notice of Violation

  1. George Fergusson Post author

    According to the PPM/AQF response to the NOV, Clary Lake rose 36.5″ after the September 30th storm in which we received about 5.5″ of rain. Really? 36.5″? Where’d they come up with that figure I wonder. I measured only a 16.5″ rise from that event.

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