DURHAM — Town officials and the Maine Department of Transportation are butting heads over a large pile of asphalt that has been accumulating on the side of Route 136 for over a year.

The more asphalt that is dumped, the closer the pile moves to the bank of the Androscoggin River. Town officials worry that could harm the river, the jewel of the Clean Water Act.

MDOT officials argue that the pile is a “more than adequate” distance from the water and that they are well within their rights to build it, despite Durham officials’ claims to the contrary.

MDOT is building this pile of asphalt millings with plans to construct a “pug mill” to recycle the asphalt and use it to repave and add shoulders to roughly 16 miles of Route 9, according to Region Engineer Bill Doukas.

He said the project will “provide a safe, reliable transportation improvement” with significant cost savings. Reconstruction of the road would cost about $4 million per mile, he said, while highway rehabilitation using recycled asphalt costs about $350,000 per mile.

Robert Forrest, Durham’s code enforcement officer, said Durham was blindsided by the project.

He said officials never applied for any land-use permits — the state owns the lot where the pile is located — and never told anyone in the Town Office what the project was. He only found out what was happening when residents started complaining and he called to investigate, he said.

Forrest filed a “notice of violation for corrective action” against MDOT on Aug. 9 on the grounds that no industrial use is allowed in the resource protection zone without a conditional use permit for earth-moving activities greater than 500 cubic yards.

Doukas responded to the notice in a letter dated Sept. 10, saying it was a “well-established general rule of law that state governments are not subject to regulation by local municipalities.”

Forrest is not convinced. After speaking with the town attorney, he said Thursday that he planned to file a second notice of violation Friday, “specific to shoreland zoning,” citing the prohibition of petroleum products (asphalt is a petroleum product) from a commercial or industrial business in the shoreland zone, as well as the lack of public notification or public hearing for the town.

Resident Benjamin Redmond is concerned about the potential health risks of inhaling the black dust that has started accumulating at his home, but he says it’s the Androscoggin River just across the road that he is concerned about.

According to the Mandatory Shoreland Zoning Act, all municipalities must establish zoning controls in areas within 250 feet of the normal high-water line of any great pond or river, and within 75 feet of the normal high-water line of a stream.

Doukas said he was confident there are “no chemical or excess contaminant issues at the Durham site,” and that “the material in the pile of millings is the exact same material that makes up Route 136 and every road in our state, and (is) considered inert material by DEP definition.”

Workers have also placed what Department of Environmental Protection spokesman Dave Madore called “erosion control measures” to help protect the river from any impact.

According to DOT officials in response to Redmond’s questions, “We did contact our partners at DEP when this issue came up and found that we are required to keep this stockpile 75 feet away from the high-water mark of the Androscoggin River.”

Doukas said in an email to The Times Record on Sept. 11 that the pile was “more than double the required distance from the high-water mark.” Later, on Sept. 18, he said the pile had grown but was “still within the DEP-accepted parameters.”

Doukas said the milling pile was 65 feet from the guardrail, with another 25 feet to the very beginning of the rip rap — boulders and stones lining the slope down to the river’s edge.

 

hlaclaire@timesrecord.com

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