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5/8/2013 2:00:00 PM
Dam Owner, Petitioner Spar Over Status Of Breach
By Shlomit Auciello

Paul Kelley, the manager of Pleasant Pond Mill LLC, has requested an extension to the comment period for the Clary Lake water level petition, saying the Maine Emergency Management Agency has long been aware of an Aug. 2011 weather-related breach in the Clary Lake dam and asking for information related to a 2007 inspection there.

Pleasant Pond Mill owns the dam at the western end of Clary Lake, but does not own land and buildings adjacent to the structure. Members of the Clary Lake Association and other lakeside property owners have expressed concerns about the impacts of fluctuating water levels and the Maine Department of Environmental Protection is currently considering a petition to set a level for the lake.

Kelley's extension request cited an Aug. 28, 2012 communication from MEMA Operations Division Director Mark Hyland, in which Hyland stated that a breach of the dam would not constitute a threat to public safety.

"The Clary Lake Dam is classified as a low hazard potential dam meaning failure or misoperation of the dam will probably cause no loss of human life and low economic or environmental loss," Hyland wrote. He said the state does not normally inspect such dams.

"MEMA does not have a position on whether the dam should be breached, repaired, left in its current state, or replaced," Hyland said.

On Aug. 7, 2007, State Dam Inspector Tony Fletcher wrote to Fergusson - at that time president of the Clary Lake Association - stating in part, "In essence Clary Mill dam is an old dam which leaks. Leaks are a sign of progressive internal deterioration of the masonry and can lead to breach of the dam - especially considering the dam's age."

Kelley said the damage sustained during tropical storm Irene in Aug. 2011 constituted a significant breach of the dam.

"With all due respect, perhaps it is time somebody at the DEP actually told Mr. Hyland that the Clary Lake Dam is already breached, having occurred on or about August 29, 2011 during a State proclaimed Public Emergency," Kelley wrote in his extension request. "Given this facially-inaccurate [sic] post-hearing MEMA comment, please be advised that PPM has prepared a letter to Mr. Hyland bringing these issues to MEMA's immediate attention, along with a 'requested clarification' from his Department as to whether MEMA is now waiving all current and future jurisdiction."

Kelley said his company would hand deliver its letter to Hyland and asked DEP to allow until June 6, at the earliest, for MEMA to respond and for PPM to respond to MEMA.

He asked DEP to use that time to "address any pending Motions still before it, and allow any and all other Motion practice deemed necessary by the parties, and/or as the interest of justice allow or demand."

Fergusson responded to Kelley's most recent request in a May 7 email message to DEP Policy Director Heather Parent, the presiding officer for the water level petition process.

"I strongly object to the recent request by Pleasant Pond Mill LLC for additional time to reply in regard the above referenced matter and I respectfully request that you immediately deny it," he wrote. "This is a blatant attempt by Mr. Kelley to derail these proceedings and stall so he can pursue his own questionable agenda. Mr. Kelley is not asking for more time to prepare his comments; he is asking that the whole procedural schedule be put on hold while he drags everyone off on a wild goose chase to no good end - at least none that I can infer from reading his convoluted and deliberately confusing missive."

"It is not clear to me exactly what Mr. Kelley is trying to accomplish with this latest maneuver of his or why he is so insistent that the dam is already breached; I sense an ulterior motive with a devious purpose," Fergusson wrote. "Yes, there is a small hole located roughly 36" below the top of the dam but the dam is not breached in the sense that it won't hold water any more, as Mr. Kelley would have you believe."

Fergusson said the dam continues to impound water, despite the gate being wide open, "and with a little help it will continue to do so for many years to come, despite Mr. Kelley's histrionic claims to the contrary."

The Lincoln County News will continue to follow this story.

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