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BACK
STATE OF MAINE
October 17, 2005 IN THE MATTER OF DRAGON PRODUCTS COMPANY, INC.
PETITION FOR LEAVE TO INTERVENE
Pursuant to 38 M.R.S.A. Section 345-A(2-A) and Chapter 30 of the Rules of the Department of Environmental Protection, Neighbors for a Safe Dragon ("NSD"), through undersigned counsel, hereby petitions the Board of Environmental Protection ("the Board") for leave to intervene as a party in the above-captioned proceeding. NSD is a citizens' group consisting of abutters and neighbors of Dragon Products Company's ("Dragon's") Thomaston facility, and other Mid-Coast residents who are affected by Dragon's operations, including by the special waste landfill/stockpiles at issue in this proceeding. NSD has a direct and substantial interest that will be affected by the proceedings; has reasonably specific contentions regarding the subject matter of the hearing and the appropriate statutory criteria; and is capable of participation in the hearing. Accordingly, its Petition for Leave to Intervene should be granted. FACTUAL BACKGROUND I. The Dragon Facility and Expansion of the Stockpiles
----------------------------------------------------- Page 2 WD-A-R), (hereinafter "Applications"). Those Applications were never approved by the Department. On October 6, 2005, this Board voted to assume jurisdiction over the applications due to their being of significant public interest. When Dragon applied for its special waste landfill licenses in 1991, the CKD and waste clinker piles were approximately 4 acres, upon information and belief. According to the Town of Thomaston Code Enforcement Officer, in 1998, the CKD and waste clinker piles were approximately eight acres. See Exhibit l, Letter from Peter Surek to DEP, February 17, 1998. According to the Schedule of Compliance ("SOC") recently entered into by the DEP and Dragon, the clinker disposal area continued to receive waste materials until the year 2000, and the CKD pile received a net 73,446 tons of CKD between 1995 and 2004. See Exhibit 2, SOC executed June 22, 2005, paragraphs 3 and 4. At last report, the CKD and clinker piles totaled 27 acres. Upon information and belief, the stockpiles were both vertically and horizontally expanded after 1991. See Exhibits 1 and 2. Accordingly, the landfill applications must be licensed as expansions, and should meet all appropriate standards described below. II. Neighbors for a Safe Dragon
---------------------------------------------------------------------- Page 3 operations and waste management activities at Dragon's Thomaston cement manufacturing facility. NSD's many members, all live, work, conduct business or their personal affairs or recreate in the Thomaston area. Many members of NSD are significantly impacted by Dragon's Thomaston facility. See Exhibit 4, NSD Petitions. For example, there are members of NSD who live near the facility and are significantly affected by the dust from Dragon's operations, and the landfills/storage piles at issue in this proceeding. See Exhibit 5, Affidavits of Darney family. In addition, the stormwater runoff and leachate from the unlicensed piles is affecting the environment, including groundwater and surface water, in which the members of NSD live, conduct business, and recreate. Pursuant to Chapter 30(5)(A)(1), petitions to intervene shall be granted when a petitioner demonstrates: (a) that the petitioner has a direct and substantial interest which may be affected by the proceedings; (b) that the petitioner has reasonably specific contentions regarding the subject matter of the hearing and the appropriate statutory criteria; and (c) that the petitioner is prepared and capable of participation in the hearing in order to support such contentions. See, Chapter 30(5)(1)(A). Here, NSD satisfies all three criteria, as demonstrated below, and the petition to intervene should accordingly be granted. Page 3 ---------------------------------------------------------------------- Page 4 I. NSD has direct and substantial interests which may be affected by the hearing. The members of NSD live, work, and recreate in and near Thomaston, Maine. They use and enjoy the air, visibility, water and environment in the area affected by Dragon's operations. Dragon's unlicensed operation of its solid waste facility has substantial negative impacts upon NSD members. These impacts served as the impetus for the formation of NSD. In particular, NSD members are concerned about the effects of Dragon's unlicensed operations on the air quality in their homes and their community, the water quality in their community and potentially on their property, damage to their personal property and risks to their personal physical and psychological well-being. Dragon has been operating a solid waste facility for nearly 14 years without the required license from the DEP's Bureau of Solid Waste and Remediation, in a manner that harms human health and the environment. Without the required solid waste license and associated regulatory constraints on operations, Dragon's solid waste landfills have caused substantial damage to NSD's environment, to their personal property, and to their physical and psychological well- being. In particular, CKD is a known waste of concern among the regulating community. See Exhibit 6, EPA Regulatory Determination on CKD. For example, CKD is known to contain chromium, lead, and mercury. Id. As seen in the attached affidavits at Exhibit 5, the CKD from Dragon's facility is, among other things, corrosive to cars, coats the interior of neighbors' homes, and is damaging the vegetation in the area. In particular, NSD's substantial interests in the environmental damage caused by Dragon's unlicensed operations include the damage to the vegetated areas surrounding their places of residence, work and recreation by both the airborne CKD and/or fugitive dust from the 4 ---------------------------------------------------------------------- Page 5 facility, and the leachate from the facility that affects the quality of the water, upon which the vegetation depends for its health. Dragon's unlicensed operations pose a risk to NSD's interest in the environment through injury to the local ecosystem, including groundwater contamination and injury to vegetation and other organisms. In addition, NSD members have a substantial interest in the damaging effects of Dragon's unlicensed operations on their personal property. NSD members have sustained significant damage to the exterior of their cars and homes, as well as damage to other belonging inside and outside of their homes, due to the dust from the facility descending upon their homes, their cars, and infiltrating their belongings. NSD members also have a substantial interest in the detrimental effects of Dragon's unlicensed operations on their physical and psychological well-being. Dragon's unlicensed operations are posing a direct risk to the health of NSD members, through inhalation, ingestion, and exposure of body to the various releases from the facility. NSD members are experiencing chronic conditions, including headaches, nausea, eye and skin irritation, respiratory illness and discomfort, which, upon information and belief, are attributable to facility operations. In addition, NSD members have to live with the knowledge that they, and their families, are being exposed to materials that are known to be toxic or otherwise hazardous to human health. The releases from the facility, and Dragon's failure to eliminate the risk from the releases from its facility, including the air and water contamination caused by and related to the unlicensed landfills/storage facilities, presents an imminent and substantial endangerment to the health of these individuals and to the environment in which they have an interest, impairing these members' health, safety and welfare. 5 ---------------------------------------------------------------------- Page 6 For further examples and explanations of specific interests and harm to individual members of NSD, please see the Exhibit 5, Affidavits of the Darney family. NSD appreciates Dragon's contribution to the local economy, and does not wish to shut the Thomaston facility down. NSD simply seeks the protection of the State, pursuant to 38 M.R.S.A Section 1310-N and the regulations enacted thereunder. If Dragon is required to comply with the above licensing provisions, there is a significant likelihood that NSD's interests will be protected. If, on the other hand, Dragon is not required to bring its facility into compliance with the relevant solid waste statutory provisions and regulations, NSD's interests remain at significant risk. II. Neighbors for a Safe Dragon Has Reasonably Specific Contentions Regarding the Pending Permit Applications and the Appropriate Statutory Criteria. Title 38, Section 1310-N governs the licensing criteria for solid waste disposal facilities, which is how Dragon's special waste applications are categorized. Furthermore, upon information and belief, the CKD stockpile has expanded since 1991. Accordingly, both the operational requirements and the siting criteria of the solid waste statute and regulations apply to this facilty. Under 38 M.R.S.A. Section 1310-N, "no person may located, establish, construct, expand the disposal capacity of or operate any solid waste facility unless approved by the department under the provision of this chapter." Further, the department must find that: the facility will not pollute any water of the State, contaminate the ambient air, constitute a hazard to health or welfare or create a nuisance; • the facility provide a "substantial public benefit" in accordance with Section 1310-N(3-A); Page 6 ---------------------------------------------------------------------- Page 7 • the volume of waste and the risks related to its handling and disposal have been reduced to the maximum practical extent by recycling and source reduction prior to disposal. See 38 M.R.S.A. Section 1310-N(1)(A),(B), and (C). NSD contends that Dragon has expanded, has operated and is operating a solid waste facility without an approved license, and that the facility is polluting the water, contaminating the ambient air, constituting a hazard to health or welfare, and creates a nuisance. In addition, the facility may not pose an unreasonable risk to surface water, or significant sand and gravel aquifers; see, Section 1310-N(1 -A) and (2-A); and must establish that certain siting standards have been met under Section 1310-N(2-F). Those siting standards include: • financial and technical ability • adequate provision for traffic adequate provision for fitting the facility harmoniously into the existing natural environment, and that it will not unreasonably adversely affect existing uses, scenic character, air quality, water quality or other natural resources in the municipality or neighboring municipalities • that soil types are suitable that adequate provision for utilities has been made, and that the facility will not have an unreasonable adverse effect on the existing or proposed utilities and roadways in the municipality See, 38 MRSA § 1310-N(2-F(A)-(F)). NSD contends that Dragon's facility poses an unreasonable risk to surface water and significant aquifers, may not have the financial and technical ability to operate within the law, has not fit the facility harmoniously into the existing natural environment, and that the facility does unreasonably adversely affect existing uses, scenic character, air quality, water quality, and other natural resources in the municipality or neighboring municipalities. Page 7 ---------------------------------------------------------------------- Page 8 III. NSD is prepared and capable of participation in the hearing in order to support its contentions. NSD has retained the undersigned counsel to represent its interests before the Board. For several months, a team of attorneys at Perkins Thompson Hinckley & Keddy has been working diligently to obtain a full understanding of the many legal and environmental issues surrounding Dragon's Thomaston operations. This team has familiarized itself with Dragon's operations, and the regulatory structure under which Dragon is required to operate. The team has attempted to work with the DEP in connection with Dragon's failure to satisfy various licensing requirements, and regarding access to various public records from the DEP to assist in its analysis of the situation. See Exhibit 7, September 7, 2004 letter to Lisa-Kay Keen, and Exhibit 8, September 28, 2005 FOA letter to Commissioner Gallagher. To date, DEP has not been very responsive, and DEP has been reluctant to produce some of the documents sought (see Exhibit 9, September 29, 2005 and October 12, 2005 Letters from Pete Carney to Peggy McGehee). We hope to come to a timely and amicable resolution of these issues such that we are able to present the most comprehensive analysis possible to the Board at hearing. The burden is on the applicant to satisfy the statutory and regulatory criteria, and NSD's participation will ensure a full and fair airing of the evidence that Dragon submits in support of its application. Finally, NSD and its attorneys have extensive administrative experience, including before this Board. The team is familiar with the administrative processes under which this hearing will take place, and is both prepared and capable to participate in this hearing in order to support the contt.itions of NSD. CONCLUSION Page 8 ---------------------------------------------------------------------- Page 9 WHEREFORE, based on the aforementioned rationale, Neighbors for a Safe Dragon respectfully requests that it be granted leave to intervene in this proceeding before the Board. Dated at Portland, Maine this 17th day of October, 2005. Peggy L. McGehee, Esq.
PERKINS, THOMPSON, HINCKLEY & KEDDY, P.A.
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