Via Facsimile (207) 287-7191, Electronic and First Class Mail.

Lisa-Kay Keen
Bureau of Land and Water Quality
Department of Environmental Protection
Augusta ME 04333

Re: Modernization/Expansion of Dragon Products, Inc., Thomaston, Maine
Site Location License #L-4152-26-S-M

Dear Lisa-Kay:

This firm represents the group Neighbors for a Safe Dragon ("NSD"), along with a number of individuals who live and work near the Dragon Products Company cement manufacturing facility in Thomaston. Maine ("the Plant") in connection with their concerns about the health and environmental impacts of the Plant. Pursuant to our letter of August 6, 2004, NSD is an "interested person" under the Department's regulations. Please accept this letter and the attached exhibits as NSD's comments on the draft order for the ahove-referenced application.

For many years, Dragon Products Company ("Dragon") has been violating existing ervironmental regulations and has been operating the Plant in a way that harms human health and the environment. Department staff have expressed concern about the Plant's "impacts to ground and surface water", "dust inhalation and ingestion", stormwater discharge; financial capacity and technical ability. William Butler. Solid Waste Facility Inspection Report, October 16, 1998, at 4 ("Butler Memo")(Attachment 1). Dragon has failed to remedy its serious problems, which implicate four of the six Site Law criteria, and Carla Hopkins of the Bureau of Remediation and Waste Management concluded recently that "it is clear that the Department

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could not issue Dragon any type of license at this time,'' Memorandum of Carla Hopkins to David Littell, dated June 21, 2004, at 3 ("Hopkins Memo")(Attachment 2).

The people living and working near the Plant have had first-hand experience with the problems identified by Department staff, As explained below, they have suffered adverse health effects from breathing the cement kiln dust ("CKD'') and other dust that is generated by Dragon without adequate control, and which blows into their homes, their businesses, and even into a day care facility located near the Plant.

Our clients appreciate Dragon's contribution to the local economy and do not wish to shut the Plant down. However, in light of the significant and unresolved environmental and health impacts caused by the Plant, Dragon should not be granted a license to operate its facility until it can remedy these problems, (2)

The cement manufacturing process results in a number of byproducts, including waste clinker and CKD. Hopkins Memo at 1-2. Six to ten thousand tons of waste clinker and other material is stockpiled in a 12-acre area on the east side of the Plant. Hopkins Memo at 1. Originally, the Plant discharged CKD directly into the atmosphere. but beginning in the early 1970's, a fabric filtration system was installed to capture CKD, resulting in a separate CKD stockpile at the Plant. Id. at 2. At this point, the CKD stockpile is approximately 15 acres and contains an estimated 845.000 tons of material- Id.

The Plant has expanded a number of times over the years. Dragon has now submitted a Site Law application for after-the-fact permission to expand and "modernize" the Plant, thereby

Footnotes (1) The Hopkins Memo is one of a number of briefing papers recently prepared for Assistant Commissioner David Littell by Department Staff, at his request, assessing the history of Dragon's interaction with the Department. Although NSD has asked the Department to provide copies of the other briefing papers that have been prepared, to date we have only received the Hopkins Memo.
(2) Although NSD has other remedies under the Department's regulations available to it, such as seeking a re-vocation of the entire Site Law permit based an the current threat and adverse effect on human health and the environment, in the interest of saving time and resources. NSD is only seeking to deny the modification application until the current environmental problems can be solved.

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allowing Dragon to increase production. Dragon Application at 4. Dragon's application contains no data which shows how air emissions, water quality, or any other environmental impact would be affected by the increased production. As part of its ongoing operations, including the expansion, Dragon will continue to produce some CKD, as well as manage and distribute CKD as a liming agent from the stockpile. However, by Dragon's own estimates, the "draw-down" of the enormous CKD pile will take 30 years to complete. "Dragon Pile Lacks Permit" by Daniel Dunkle, The Courier-Gazette, February 21, 2004, pg 4, para 6 (Attachment 4).

CKD is a "special waste" that contains hazardous constituents. including potentially toxic metals like chromium. See, EPA Regulatory Determination on Cement Kiln Dust, 60 Fed. Register 7366, 7373 (February 7, 1995) ("EPA CKD Determination")(Attachment 5); Chapter 400 of the DEP's Solid Waste Regulations (defining "special waste" to include industrial waste or industrial process waste), EPA does not regulate CKD as a hazardous waste because of a statutory exemption, unless the kiln burns hazardous waste for fuel, but recognizes the likelihood of adverse health and environmental effects of CKD and recommends certain management practices, such as covering stockpiles, which Dragon has not undertaken. See EPA CKD Determination.

A. Site Law Permits

Dragon's Site Law licensing history appears to be accurately summarized in the Draft Order at 1.

B. Solid Waste Licenses

In 1992, due to statutory requirements in place at that time, Dragon applied for a special waste license, which the Department has never acted on, in part because Dragon could not meet licensing standards for the stockpile. Hopkins Memo at 3. Instead, since at least 1994, the Department has been working with Dragon on a "schedule of compliance," ("SOC") which is a tool designed to bring a facility into compliance, in this case with the DEP solid waste regulations. Id.; Memorandum of Carolyn Bergeron to Paula Clark, dated December , 1997, at 1 (referencing draft SOCs prepared in August of 1994)("Bergeron Memo")(Attachment 6).

Despite this attempt for at least 10 years now to bring Dragon into compliance with the solid waste regulations through a Schedule of Compliance, Dragon continues to pollute the environment. See Hopkins Memo at 3. Because it is polluting the environment, it cannot be licensed under the Department's regulations. Instead of requiring that Dragon stop polluting, the Department has given Dragon the "green light" and has determined that Dragon need not obtain a solid waste storage or landfill license for the CKD stockpile, despite the fact that such a facility clearly requires a license under the Department'' s solid waste regulations.

Given that EPA through the delegated authority of DEP is not regulating CKD as a "hazardous waste", despite its hazardous constituents, and that the Department°s Bureau of Remediation and Waste Management is failing to require that Dragon obtain any kind of solid

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waste license for the storage of the CKD at the facility. it is all the more imperative that the Department, in reviewing this application, protect the health and welfare of the neighbors adversely affected by Dragon's operations, and deny the application until the standards of the Site Law can be met.

I. Applicable Legal Standard.
Dragon is required to demonstrate that it can meet six separate standards of development specified in Maine's Site Location of Development Law. Dragon must show: 1) adequate financial capacity and technical ability to develop the project consistent with state environmental standards; 2) no adverse effect on the natural environment, including "air quality, water quality or other natural resources;" 3) the development meets the standards for storm water management and erosion and sedimentation control; 4) the development "will not pose an unreasonable risk that a discharge to a significant ground water aquifer will occur;" 5) it has made adequate provision of utilities for the development; and 60 the activity will not "unreasonable cause or increase the flooding of the alteration area...," 38 M.R.S.A. § 484; DEP Regulations, Chapters 373, 375. If Dragon fails to satisfy any one of the criteria, the Department is required to deny the application. See In re Maine Clean Fuels, Inc. 310 A.2d 736, 741 (Me. 1973). (3) In this instance, Dragon has failed to satisfy four of the six standards.

II. Dragon is Unable to Satisfy At Least 4 of the 6 Site Law Standards.

A. Inadequate Financial Capacity and Technical Ability. According to Chapter 373 of the Department's regulations, applicants must provide full and accurate estimates of the cost of development, which Dragon has failed to do. Chapter 373(1)(B).

Further, there is nothing in the application but a conclusory statement on its stated

Footnote 3 The Draft Order identifies the proposed Plant expansion as a "minar change" which "will not significantly affect any issues identified during previous Department reviews of the project site." Draft Order at 2. Department regulations define a "minor revision" as "any proposal to modify a license previously granted by the Department, where the modification significantly decreases or eliminates an environmental impact, does not significantly expand the project, does not change the nature of the project or does not modify any Department findings with respect to any licensing criteria." DEP Regulations. Chapter 2(1 )(L). Because the proposed modernization and expansion fails to decrease or eliminate existing environmental impacts, significantly expands the project, changes the nature of the project, and modifies the Department's findings (due to, among other things, the air quality and groundwater quality problems), it should be classified as an amendment to the existing permit thus requiring Dragon Products, Inc. to follow the amendment procedure set forth in the Department's regulations.

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ability to self-finance. The rules specifically require that further information must be provided, including an annual report or other evidence of ability to self-finance, if that is the case. Id.

Dragon should not be granted a permit without this critical information, particularly in light of the fact that Department staff have specifically raised concerns about Dragon's financial capacity and technical ability to handle CKD_ See Butler Memo at 4: Chapter 373(2) (requiring evidence of technical ability to meet air and water pollution control standards), The fact that Dragon has been aware of its failure to meet air and water quality standards for years, yet has failed to remedy the problems, also raises the issue of its financial. capacity to meet environmental standards.

B. Adverse Effect on the Natural Environment.
Similarly, Dragon has submitted no substantive information on which it is reasonable to conclude that there will be no adverse affect on existing uses, air quality, water quality and other natural resources. Although Dragon has admitted that the expansion will allow it to increase production, the application simply recites perfunctory conclusions as to its compliance with these standards, and it provides no substantive information on which the Department could base any decision.

The applicant's failure to discuss the adverse impacts from the plant are telling. Contrary to the conclusory assertions in its application, the Dragon plant is adversely affecting the environment, and should be denied until Dragon can show that it is no longer polluting the air and water around the Plant.

1. The Plant Is Adversely Affecting Air Quality.
Fugitive dust, including CKD, has been blowing around the neighborhood and harming the health and welfare of the people who live near the Plant for some time. See various affidavits of neighbors, collectively attached as Attachment 7. The people living and working near the Plant report a variety of health problems that have resulted from the thick dust which coats the surfaces inside and outside of their homes and workplaces.

The Department has been aware of dust blowing around the neighborhood from the Plant, including the CKD pile, since at )east 1997. E-mail from Denise Cvrmier to Leighton Carver, et al., dated October 3, 1997 (describing "constant dust problems on a daily basis'')(Attachment 8); E-mail from Sherry Howard to Carolyn Bergeron, dated November 14. 1997 (documenting results of inspection conducted for complaint investigation) (Attachment 9). In fact, the Department has expressed its concern with "dust Inhalation and ingestion from wind-blown CKD." Butler Memo at 4.

Although the CKD stockpile is one source of emissions, according to Dragon's own staff, there are many other potential sources of dust. See Letter of Ann Thayer to William Butler, November 23, 1998 (Attachment 10). Despite this acknowledged problem, there is no

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information in the application regarding the existence, amount or control of fugitive emissions from either the CKD stock-pile or any other area of the Plant.

The Draft Order concludes that this "modernization" of the Plant has no new or significant impacts, yet there is no underlying evidence or data to support this conclusion. First, any process update of this scale that allows a plant of this size to increase its rate of production must be evaluated for its impacts, and with greater information from the applicant. For example, according to the Draft Order and what little information was provided by the applicant, new "bag houses" are apparently being installed or constructed. These are the devices that collect the CKD, and certainly they, and the entire manufacturing process must, at a minimum, be described and analyzed to ensure that they will remedy the ongoing air quality problems on the site, or at least not further contribute to those problems.

The Draft Order's attempt at ensuring no fugitive emissions are coming from the site through Condition #2 misses the mark. The emissions are clearly currently coming from the site now, and must be dealt with now - not at some point in the future when they are worse. Dragon is currently failing to meet Site Law standards in a wholesale way that is beyond simple correction with a condition. It must not be allowed to continue to expand its operations without addressing its existing problems,

2. The Plant Is Adversely Affecting Water Quality.
It is beyond dispute that Dragon is also contaminating the groundwater and surface water from operations at the Plant. See Letter from Carla Hopkins to Ann Thayer, dated June 23, 2004, with attachments (Attachment 11); E-mail from Richard Heath to Carla Hopkins dated December 30, 2002; (Attachment 12); Memorandum from Richard Heath to Carla Hopkins on Review of Water Quality Results, dated October 4, 2002 (Attachment 13).

The Department has expressed concern about "impacts to ground and surface water from the very high pH leachate generated by the stockpiles" and "disposal of CKD generated on the pavement areas of the facility via blending with stormwater and discharging to Quarry 5 and ultimately to a tributary of the St. George River" for some time. Butler Memo at 4. The Department's concerns have been echoed by the Town of Thomaston, and Dragon has admitted that its waste pile is "closer than the 200 feet allowed to a stream or runoff that goes, at some point to the Georges River."' Letter from Peter L. Surek, aThomaston Code Enforcement Officer, to Carolyn Bergeron, dated February 17, 1998 (Attachment 14). Within the last several months, the Department. has concluded that its data shows that the Plant operations have "significantly impacted" ground and surface water and that "water quality at the Site continues to degrade." Hopkins Memo at 2-3. The Draft Order's conclusion that the plant does not adversely affect water quality is plainly contradicted by the Department's own data and requires, on this ground alone, that the modification application be denied.

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C. Inadequate Storm Water Management and Erosion Control. As described above, the Plant's operations are blending with storm water and discharging to the surface waters of the St. Georges River; and the CKD and other dust generated by the plant's operations are blowing off-site, contaminating neighboring homes, businesses and a day care facility; and compromising the health of' people who come into contact with the dust.

Although Dragon claims that the Department should not worry about the existing waste piles because it is reducing the size of the piles, the Department and the public should not have to wait thirty years before Dragon resolves this problem.

D. Unreasonable Risk of Discharge to A Significant Ground Water Aquifer.
Again, as described above, the Department's data shows not only an "unreasonable risk of discharge," it demonstrates that Dragon's activities at the Plant have actually discharged pollutants into the groundwater near the Plant, and will continue to degrade ground water quality unless Dragon is compelled to remedy the problem.

For over a decade, Dragon has failed to address a variety of serious environmental problems at the Plant in Thomaston. In light of these ongoing problems. NSD agrees with Carla Hopkins that "it is clear that the Department could not issue Dragon any type of license at this time." Hopkins Memo at 3. The Department should deny Dragon's facially deficient application to modity its Site Law permit, and require Dragon to undertake the environmental clean-up that should have been completed years ago, before allowing it to increase production at the Plant.

Thank you for your attention to this matter. If you have any questions, please do not hesitate to contact me at the Portland address above.

Sincerely,

David B. McConnell

Enclosures

cc:
Dawn Gallagher, Commissioner
David Littell, Deputy Commissioner
Neighbors for a Safe Dragon
Ann Thayer, Dragon Products, Inc.

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