NRCM Calls on LURC to Impose Fines
NRCM news release
Based on an evaluation of internal documents from Maine’s Land Use Regulation Commission (LURC), the Natural Resources Council of Maine (NRCM) concludes that Plum Creek and one of its logging contractors, Theriault Tree Harvesting (TTH), last fall violated Maine regulations designed to protect water quality and Maine forests from poor timber practices. Specifically, in late October 2008 these companies caused massive erosion problems in Kibby Township, Franklin County, including a mud slide approximately 900 feet long. Plum Creek and its contractor ignored communications calling on them to stop work until proper erosion control measures could be implemented (1). Plum Creek and TTH also declined to even show up for an after the fact site inspection meeting with LURC officials to view the damage to the site(2).
NRCM believes that LURC should impose fines on both Plum Creek and TTH for this violation. “We have carefully reviewed this case and firmly believe that Plum Creek should not get away with this type of behavior in Maine’s woods,” said NRCM Executive Director Brownie Carson. “Plum Creek is a repeat offender of Maine’s timber laws and should face the consequences when they violate the rules.” In 2006, Plum Creek was fined $57,000 for repeatedly violating Maine’s Forest Practices Act, the largest such fine that had ever been assessed in Maine.
Plum Creek’s logging contractor, TTH, was removing timber from Plum Creek land in connection with a wind power project under development by TransCanada. LURC documents reveal that a third party inspector (Steve Roberge, SJR Engineering) determined on October 22, 2008, that TTH had failed to implement standard erosion control measures needed to prevent erosion on steep slopes (3). Pursuant to the LURC wind power permit, Roberge was employed to review clearing operations to ensure that proper practices were implemented. On October 23, 2008, he communicated to TransCanada and LURC that logging activities on Plum Creek’s land had gone seriously awry, and he recommended that operations cease until the ground froze (4).
TransCanada notified Plum Creek by phone and e-mail to stop work (5), but Plum Creek and TTH ignored the communications and continued logging on October 27 even after a heavy rainstorm over the weekend of October 25-26 further destabilized already saturated soils. Photographs by the third-party inspector show massive mud slides, with skidder ruts several feet deep (see attached photos).
NRCM discovered an internal e-mail from a TransCanada consultant to LURC explaining that Plum Creek needed “to keep the wood flowing to satisfy volume contracts they have in place with the customers.” (6) Alarmed by Plum Creek’s disregard of the stop work order, the third party inspector’s report said: “I do not understand the apparent rush to skid these cut trees down the skidder road immediately. Frozen conditions will occur very soon in this area.” (7)
This evidence confirms NRCM’s belief that Plum Creek ignored the stop work order and directed TTH to keep cutting in order to meet timber supply quotas; thus, timber values became more important than Maine regulations for safeguarding the environment.
“This appears to be a clear case of Plum Creek pushing hard to extract timber at a break-neck speed, despite the fact that their loggers had failed to install proper erosion control measures, weather conditions were not conducive to logging, and clarion calls were being made to stop work,” said Carson.
On November 19, 2008, LURC submitted a letter of warning concerning this matter to TransCanada. But NRCM believes that a warning was not sufficient, and that the offenders in this case – Plum Creek and TTH – should have been the target for enforcement action. As explained in an October 27th e-mail, the independent contractor stated: “I believe this violation deserves some sort of fine/penalty…[ellipsis in original] If this doesn’t qualify, I’m not sure what would. All eyes will be looking towards the LURC for response to this issue.” (8)
LURC enforcement policy stresses that consequences must be real in order to achieve deterrence and prevent repeat violations. In its guidance document on enforcement, LURC states that one of its key goals is to assure: “that persons are deterred from committing land use regulation violations.” (9) LURC enforcement policy also states that past performance should be a factor in determining the size of any monetary penalty (10). Plum Creek was fined $57,000 for repeatedly violating Maine’s Forest Practices Act. Plum Creek also has violated LURC standards that protect water quality, developed a powerline corridor through forest lands without applying for a permit, and ignored appeals by state agency biologists to refrain from destroying deer wintering habitat within Plum Creek’s ownership (11).
LURC enforcement policy makes clear that the landowner (which in this case is Plum Creek) holds the greatest responsibility when this type of violation occurs:
The Commission finds that owners of land on which regulated activities occur are responsible for those activities. As such, they will be held responsible for assuring that the actions undertaken on their lands including those by contractors are in compliance with all applicable Commission requirements (12).
“TTH and Plum Creek created a huge scar on a hillside in Franklin County, for which they should be fined. But this case must also been seen in the larger context of Plum Creek’s poor record of performance in Maine’s woods, and their unprecedented application for the largest development in Maine history, in the Moosehead Lake region,” said Carson.
“When a company like Plum Creek is involved in both logging and development, there is every temptation to cut corners in order to keep the timber operations moving – which appears to be what happened here. This could be a clear warning about how Plum Creek may behave if given a permit to develop two resorts and 1,000 house lots around Moosehead Lake. We call on LURC to impose fines on Plum Creek and TTH so that they understand, fully, that Maine will not condone this type of bad logging practices – not in connection with a wind power project, traditional logging operations, or future development projects.”
Timeline for Kibby Mountain Mudslides
Tuesday, October 21 – Plum Creek and its sub-contractor Theriault Tree Harvesting (TTH) begin land clearing operations for the Series B towers at Kibby Mountain without any erosion control measures in place despite saturated soil and steep slopes.
Wednesday, October 22 – Third Party Inspector (required as part of TransCanada’s permit) visits Kibby, determines that erosion control measures are not present. Recommends installation of erosion control equipment and stopping work until ground is frozen.
Thursday and Friday, October 23-24 – Some erosion controls installed, but not in sufficient quantity to deal with the large-scale erosion and saturated soil conditions already occurring. Trans Canada notifies Plum Creek by e-mail and phone that clearing work should stop at Kibby.
Saturday and Sunday, October 25-26 — Heavy rains occur in the area (14).
Monday, October 27 – Plum Creek and TTH resume land clearing activities with five skidders. At some point during this day, TransCanada shuts down skidding operations. The Third Party Inspector, Steve Roberge, visited the site and wrote the following in his report:
I’m at loss to understand the thinking/implementation process here. Erosion control devices/items are essential components when working along the steep mountain areas. About 6”-8” of snow melt and a heavy 1.5” rain over the weekend overburdened the scant erosion control that had been installed. I again strongly recommend this access road not be used until all sedimentation has been cleaned up, adequate significant erosion control devices are installed, wheel ruts removed, and the skidder road allowed to freeze in. Cutting can continue along the top of the mountain, skidding can continue along the top of the mountain with the cut trees being decked at the top of the skidder road until the skidder access road becomes frozen. Again, I do not understand the apparent rush to skid these cut trees down the skidder road immediately. Frozen conditions will occur very soon in this area (15).
Tuesday, October 28 – More substantial erosion control measures installed.
Thursday, October 30 – Third Party inspector visits site with LURC staff present. Neither Plum Creek nor TTH representatives attend .
1. Letter of Warning from Marcia Spencer-Famous (LURC) to Juliet Brown (representing TransCanada), dated November 19, 2008. P. 2
2. E-mail from Dana Valleau, TRC Solutions, to Marcia Spencer-Famous, LURC, dated November 10, 2008.
3. E-mail from Steve Roberge to Marcia Spencer-Famous (LURC); Chris Cinnamon-Langille (TransCanada) et al, dated October 23, 2008.
5. Letter of Warning from Marcia Spencer-Famous (LURC) to Juliet Brown (representing TransCanada), dated November 19, 2008. P.2
6. E-mail from Dana Valleau, TRC Solutions, to Marcia Spencer-Famous, LURC, dated November 10, 2008.
7. October 27, 2008 site inspection report by Stephen Roberge titled: “Kibby Wind Power Project
TransCanada Maine Wind Development Inc. 3PI Report/Observations”. P.2
8. E-mail from Stephen Roberge (SJR Engineering) to Marcia Spencer-Famous (LURC) and David Rocque (State Soil Scientist) dated October 27, 2008.
9. LURC Compliance and Enforcement Response Policy. 1992. P. 3
10. Ibid., P. 5, P. 12.
11. See November 15, 2006 NRCM report titled: “Internal Documents Show that Plum Creek Real Estate Investment Corp. Violated Maine Laws and Destroyed Important Wildlife Habitat” Available at: https://www.nrcm.org/documents/FOAA_pc_report.pdf
12. LURC Compliance and Enforcement Response Policy, P. 17.
13. Letter of Warning from Marcia Spencer-Famous (LURC) to Juliet Brown (representing TransCanada), dated November 19, 2008. P.2.
14. October 27, 2008 site inspection report by Stephen Roberge titled: “Kibby Wind Power Project
TransCanada Maine Wind Development Inc. 3PI Report/Observations”. P. 2.
15. E-mail from Dana Valleau, TRC Solutions, to Marcia Spencer-Famous, LURC, dated November 10, 2008