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Gravel Ordinance Working Group

Minutes of May 15, 2014

Chairman Gary McFarland called the meeting to order at 7:00 PM

Present were: members Steve Salsbury, Jay Fowler, Gary McFarland, Richard McMullen, Michael Jordan, Val Sprague and David Legere (arrived approximately 7:08); Administrative Assistant Stu Marckoon, members of the public Walter Grenier, Cathy Gaianguest, and gravel pit owner Michael Keene. Members Donald Bamman and Perry Fowler had informed the committee they were unable to attend.

Minutes of May 1, 2014 – Steve moved to approve the minutes as written. Michael 2nd . Vote in favor was unanimous

Meeting Date – Robert Gerber – Stu said the tentative plan is June 5, 2014 at 7PM. There was no objection from the group. Steve said if Mr. Gerber needs a ride, he'd be happy to pick him up.

Reclamation – Gary said the ordinance requires that gravel operators pay a nickel a yard to a restoration fund. Valerie said the Planning Board in February talked about the issue. She asked if the discussion was about the deposit required or the actual process of pit restoration. Gary said there were several matters discussed and asked where things stand. Stu explained that the ordinance requires a payment to the town which the treasurer would deposit and then pay back to the pit operator once restoration is completed to the satisfaction of the Code Enforcement Officer. He said there is not a lot of guidance offered by the ordinance. Gary asked if the group wanted to recommend a change or to leave it alone.

Steve said he doesn't have a lot to offer. He said his clients have no opposition to the 5-cents per yard payment. He said there has been a struggle with the Planning Board's desire for restoration as you go vs. his clients' desires to restore the pits when they are all done. Jay said it would be helpful to be able to draw some of the funds that were put away to do some restoration work. He said the concern is that if the Code Enforcement Officer or the Planning Board doesn't like the restoration work, the money could be withheld. Gary said if the CEO checks periodically it could make the process a lot smoother. A discussion followed on how to draw down the restoration funds.

David said the pit operators have to file a restoration plan before they are granted a permit. Jay said it's shown on the permit application every three years. He said if the restoration is not done, a new permit should not be granted. He said the Planning Boards should be able to see the restoration that has been performed during their site visits. He said he has always performed reclamation at his pit and had the inspections done. He said he wasn't sure what the big hassle was.

David said he was curious about getting funds up front and coming up with an estimated restoration cost, and allowing the pit operators to receive a portion of the fund to get things done. Jay said the restoration costs add up fast and outlined some of the costs.

Stu said it might be in the best interest of the Selectmen, Planning Board, CEO and Treasurer to draw up a separate policy of how to handle the funds. Jay said he would favor placing the money in an escrow account in both the operator's and town's names.

Jay said the restoration plans should all be on file. David asked if the plans might change as one mines the land. Jay said restoration is going to be basically the same.

Valerie said it would be good to make a recommendation on what restoration means. Gary said it's bringing the land to a similar way as to what was there previous to the gravel removal. Valerie said she thinks the restoration language ought to be more detailed, and to bring the land back to its natural state more. Jay said that's what he tries to do with his pit. Valerie said some of the pits don't seem to be restored with what had been there previously.

Michael said there are different types of restoration. He said a pit could become a residential subdivision. He said the town has stated that Best Management Practices be used when restoring. Valerie again said that land that has been restored doesn't look much like the land right next to a pit that was undisturbed. Michael said the Perry Fowler pit, for instance, plans to restore the land with a Christmas Tree Farm. He said other pits might propose planting blueberries. A brief discussion followed.

David said the restoration plan is contained in the permit application. Gary asked if restoration was for aesthetics and to control erosion. Michael said yes, mostly for erosion control. Gary said that hopefully the pit owners look forward in their restoration plans. David said the plans must be explicit in the application because there are no particular requirements in the ordinance.

Stu said it is his observation that many people would like to see less “open” area – i.e. area that is not restored. Gary said that those with an active permit do not need to do restoration while mining it. Jay said if a pit area is restored, an operator could always break into it again if needed.

Valerie asked how high a bank can be. Jay said 3-times the loader height, which would be about 39-feet. He said that is for safety reasons. He said screens and crusher operations require more open area. He said the Bureau of Mines and OSHA can inspect the pits and shut them down. There was a discussion about some of the pits that are large open areas. Stu said the East Lamoine pit that belongs to John Goodwin seems to be the largest. Richard said they use all that area for stockpiling different materials. A brief discussion followed.

Valerie asked if there is any way to decrease the open area. Steve said the ordinance could set a number. Stu said perhaps there could be some incentive. David said one incentive would be a reduction in monitoring wells. Steve said assessed property value is another. Michael said the permit fees could be adjusted for more open land. He noted that not all pits are the same – many have different types of product in them. Stu asked if Michael was suggesting a higher fee. Michael said no, but perhaps assessing a higher amount for open pit area. There was a brief discussion about the assessment formula. Valerie said she would favor looking at incentives to make a smaller open area. Gary said assessment would be a big incentive. Valerie said perhaps the fees could be higher. A brief discussion regarding the cost of operating followed.

Richard noted that the Goodwin pit is not visible unless one is either flying over town or snowmobiling. Valerie said pits are coming closer to peoples' homes and that's why this is coming up. She said she wants to help that which is affecting other people.

Michael said the biggest issue in his mind is how to handle the 5-cents/yard feel. Stu said the groundwork is laid in the ordinance and a policy might work. David asked what happens if an operator goes into bankruptcy. Stu said the town has no right to restore a privately owned pit without the landowner's permission. A brief discussion followed about what would happen to those funds paid to the town for restoration should an entity declare bankruptcy.

Jay said he opposed the 5-cents a yard provision because it is not one's business how much gravel is taken. He said the check and balance is the Planning Board, and if the restoration that was contained in the previous permit is not done, no permit should be issued. He said he always reclaims some area. He said if the Planning Board is doing its job, there is no need for any extra hassle. Steve said under the old ordinance an operator could do restoration or pay 5-cents a yard. He said the new ordinance now makes payment necessary. A brief discussion followed.

David said the group could either recommend removing the 5-cents/yard charge and go back to the old way or to continue with the current ordinance and maybe require an easement to allow for restoration which would become an issue for the town. He said a leased pit would also be an issue.

Gary said the challenge is to create an incentive to restore more open area sooner. Jay said it is cheaper to him to pay the 5-cents a yard. He said restoration costs more. Richard asked if there is a bond required. Steve said any pit greater than 10-acres must provide a bond to the State of Maine. He said it costs about $4,000/acre for restoration. Stu said most of the pits in Lamoine are less than 10-acres in size. A brief discussion followed.

Michael noted that if 1,000 yards of material were removed, it would generate only $50 for the restoration fund. David asked if the fee were high enough. Jay again said that if the Planning Board is doing its job, there is no need for a fee.

Recommendation Process – Gary asked how the group wanted to get to a set of recommendations for the Selectmen. David said the purpose of the group was to gather data and put it in an organized fashion. He said it depends on the topic. Gary said the group could take the minutes and go topic by topic. Stu said he would be glad to work up a draft with bullet points for the group to consider. David said he mentioned the process to the Conservation Commission at its meeting the previous night.

Permitting Process Comparison – Stu had prepared a side by side comparison of the permitting process from the previous ordinance and the current ordinance. Steve said he would like to hear from the Planning Board what it feels is important to see every three years. Gary asked for clarification. Steve said he would like to know what could be in a streamlined review. A discussion followed regarding information in the application and notification to abutters being by certified mail vs. first class mail.

Jay said the gravel operators have not contaminated any water in 45-years of operation. He said the monitoring well requirement is costing the operators thousands of dollars they don't have. He said people don't need to know personal business information.

Gary said the group members should look over the comparison and write out their thoughts, concerns and ideas. The group discussion indicated that in addition to a new and renewal process, an expansion process might be another option. Gary suggested more work on this in the future.

Steve said that at a Selectmen's meeting Gary had said he hoped to have the process wrapped up in a couple more meetings. Gary asked when the group would meet again. It was agreed the June 5 th meeting would be the next time. A discussion followed on wrapping up the work. Stu said it's possible something could be crafted for a vote at the November 2014 general election.

Other – David asked where things stand with the required monitoring wells on the latest issued permits. Michael reported the pits are in violation and have been issued a notice of violation and have 30-days to become compliant. Gary said the Selectmen met with the town attorney about that matter.

Public Comment – Stu distributed an e-mail from Catherine deTuede that was sent to Gary.

Michael Keene said pit operators are not trying to contaminate the water. He said they're just trying to make it so they can take material out of a pit. He said he cannot afford thousands of dollars to do what the town wants him to do and it doesn't seem right. He said he's used more material this week than in a long time. He said sometimes he doesn't use his pit for months. He said no one wants to buy his pit and he can't sell it because of the new ordinance. Gary asked if his concern was the setback requirement. Mr. Keen said yes. He said there is no water under his pit – it's all on ledge. He said small operators like him are held to the same standard as the big pits and he doesn't know what to do. He said he is not doing anything wrong and wondered why they are trying to shut him down. He said it's now nearly impossible to use his pit.

Gary said Mr. Gerber may be able to help answer some of Mr. Keene's questions. Mr. Keene said his permit runs out June 30 th and it's probably too late to do anything. He said he has lain awake at night not knowing what to do. He said the rules are killing the little guys. Gary said that was why this group was formed.

Mr. Keene asked why the changes were made. Jay said he feels the same. He said they were told the changes would be minor and then it became a whole new ordinance. Mr. Keen said he doesn't make enough money to install a monitoring well. He said he's not hurting anybody.

Jay said he's hearing nothing but anger about gravel operations lately. He and Mr. Keene continued to express strong feelings about the regulation changes. Mr. Keene said he's going to have to ask for an extension on re-permitting and doesn't know if the planning board would grant it.

Gary explained the process for possibly fixing the ordinance. He said Mr. Gerber would be here on June 5 th and recommended to Mr. Keene to bring his questions. He assured Mr. Keene that this group was looking at everything seriously.

Michael advised Mr. Keene to get his application in to the Planning Board and not to ignore it because if he does nothing, he will lose the permit. He said there are only two weeks to get something in. Mr. Keene asked about an extension. Michael said that would be up to the Planning Board to consider at the June 11, 2014 meeting.

There being no further business, the meeting adjourned at 8:40 PM

Respectfully submitted,

Stu Marckoon, Adm. Asst. to the Selectmen