Questions surface over fill

BEACON FALLS — Officials are working to determine whether O&G Industries is allowed to bring in and process excavated fill materials in town.

Torrington-based O&G Industries owns three properties in town, one each on Railroad Avenue, Railroad Avenue Extension, and Breault Road, and is currently bringing in fill, and storing and cleaning it in town, according to officials.

O&G Corporate Marketing and Communications Manager Seth Duke said in an email that the company is bringing in clean fill to the site of its wash plant on Railroad Avenue Extension to level off the area and increase its usability.

A town ordinance, passed in 1988, bans the trucking of excavated earthen fill materials into the town for processing. The ordinance states the processing of materials is harmful to the health, safety and welfare of residents “in that obnoxious dust, smoke, noise, and vibrations continually emanate from the processing facilities causing unpleasant and unhealthful effects in the community at large.”

All materials had to be entirely processed by September 1991, the ordinance states.

First Selectman Christopher Bielik said the matter came to officials’ attention after residents complained that the company was trucking in materials.

According to Bielik, O&G tried to bring litigation against the town when the ordinance was approved, saying the ordinance was unconstitutional because it didn’t expressly allow for exemptions for non-conforming, preexisting conditions.

The Connecticut Supreme Court ruled that because the ordinance did not specifically express an exemption, the exemption is implied, Bielik said.

The exemption would have to come from the town’s Planning and Zoning Commission, Bielik said.

“It gives O&G the legal right to get an exemption to it. The path is not through the court system but is through petitioning the commission itself directly,” Bielik said.

Bielik said the town hasn’t been able to find any record that says whether O&G was issued or denied an exemption. He said officials with O&G claim to have an exemption, and the town has given the company until the end of the month to provide proof.

“What we are missing so far, and what we are attempting to research, is whether O&G followed that process to get a ruling from Planning and Zoning or not. O&G contends that they did,” Bielik said.

Planning and Zoning Commission Chairman Kevin McDuffie said the commission is not sure whether O&G has an exemption.

Former First Selectman Gerard Smith, who was chairman of the Planning and Zoning Commission in the 1990s, told the Board of Selectmen at its Sept. 11 meeting that he believed O&G was supposed to have been finished with the trucking and processing of material.

“When they were done, they were done. There wasn’t supposed to be anything else coming in or anything else going out. So it is clearly a violation,” Smith said. “We had a fair, open, honest thing going and we negotiated the deal we have today. But they are clearly violating the deal.”

Smith said the town needs to stop O&G.

“If you don’t stop them, they will bring in as much as they can until you do stop them. Then they will process here. Now they have all the material to process for the wash plant that is still there,” Smith said.

Bielik said the town looked into issuing a cease and desist order but can’t until it is sure that the company does not have an exemption.

“If we issue a cease and desist, and they have the authority to be doing what they are doing, they can sue us. And I would rather not get involved in litigation for no good reason,” Bielik said.

The town will decide how to move forward in October if O&G is unable to provide proof, Bielik said.

In the meantime, the board unanimously approved having the assessor inspect the material O&G has brought into town to see if it should be taxed and at what rate.