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STATE OF MAINE. SUPERIOR COURT Knox, ss. Civil Action
NEIGHBORS FOR A SAFE DRAGON,
v. COMMISSIONER, MAINE DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
PETITIONER'S OPPOSITION TO MOTIONS TO DISMISS Petitioner Neighbors for a Safe Dragon ("NSD") hereby opposes the Motions to Dismiss filed by Respondent Maine Department of Environmental Protection ("DEP") and Intervenor Dragon Products Company ("Dragon"). Contrary to the contentions of DEP and Dragon, NSD has alleged the particularized injury necessary for standing, its petition is timely, and DEP's decision to issue a "placeholder" Schedule of Compliance, rather than to act on a pair of solid waste license applications that have been pending for over 13 years is reviewable by this Court. I. Standard of Review In reviewing a motion to dismiss, the Court must view the complaint "in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." See, e.g., New Orleans Tanker Corp. v. Dep't of Transp., 1999 ME 67,paragraph 3, 728 A.2d 673, 675 (quotation marks omitted). Therefore, only the facts alleged in the complaint may be considered on a motion to dismiss and must be assumed as true. See, e.g., Moody v. State Liquor & Lottery Comm'n, 2004 ME 20,T 8, 843 A.2d 43, 47; --------------------------------------------------------------------------------------- Flaherty v. Allstate Ins. Co., 2003 ME 72, T 12, 822 A.2d 1159, 1164-65. "A dismissal is appropriate only when it appears beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim." New Orleans Tanker Corp., 1999 ME 67, T 3, 728 A.2d at 675. II. NSD Has Standing In order to have the requisite standing to petition the Superior Court for review of an agency's action, the action "must actually operate prejudicially and directly upon a party's property, pecuniary or personal rights." Storer v. Dep't. of Envtl. Protection, 656 A.2d 1191, 1192 (Me. 1995). The same standard would necessarily apply in this case, where NSD is petitioning this Court for review of DEP's failure to act. DEP and Dragon suggest that only the applicant would have standing to file a petition complaining of agency inaction, but the Law Court articulated a broader standard in holding that an abutting landowner had standing to appeal from the issuance of a solid waste disposal facility license: In the present case [the abutter's] particularized injury results from the environmental impact occasioned by the granting of the waste disposal facility license. In the future, a solid waste disposal facility on [the applicant's] property may pose problems of rodent control, litter, and seepage into ground water. [The abutter] becomes a "person aggrieved" and thus a person having standing to seek judicial review of the Board's order by virtue of this potential for particularized injury. Having such standing, he is in a position to assert any claim of defect in procedure of the Board or that the Board's order resulted from findings not supported by substantial evidence. In re Lappie, 377 A.2d 441, 443 (Me. 1977). So too, NSD has alleged that the continuing operation of Dragon's unlicensed solid waste facility in the face of DEP's inaction has resulted in health problems and property damage to the members of NSD, and may also be contaminating their wells. See Petition for ------------------------------------------------------------------- Review at TT 11, 16. The harm to health and property alleged by NSD is the kind of direct and prejudicial effect on "property, pecuniary or personal rights" that is required for standing to sue. III. NSD's Petition is Timely. 5 M.R.S.A. § 11002(3) states that "if the review sought is from an agency's failure or refusal to act, the petition for review shall be filed within 6 months of the expiration of the time within which the action should reasonably have occurred." Dragon has taken the position that the 6-month limitations period began to run in this case from the date that Dragon's solid waste applications were accepted for processing. Because the time for filing begins to run from the time by which the agency action "should reasonably have occurred," it necessarily follows from Dragon's interpretation that an agency should be issuing a licensing decision on the very day that it accepts a solid waste license application for processing. Complex licensing decisions routinely take more than six months to finalize, and Dragon's draconian reading of the statute would require the filing of a "preemptive" petition any time an agency had not made a licensing decision within 6 months of accepting an application for processing. In Hildebrandt v. Dep't. of Envt'l. Protection, 430 A.2d 561 (Me. 1981), the Law Court rejected a narrow view of the limitations period, noting in that case that the 6-month period would begin to run from the date that the petitioner received a letter from DEP refusing to process his application. Hildebrandt, 430 A.2d at 565.1 ------------------------------------------------------------------------------------------
(1) Unlike this case, Mr. Hildebrandt was not actually seeking to have the agency take any
action on his application. Therefore, the Law Court found that the 6-month limitations
period did not apply. ----------------------------------------------------------------------------------------------------- In this case, the beginning of the limitations period is not so clear-cut, as DEP never made an affirmative declaration that it would not be acting on Dragon's applications. Instead, DEP has continued to maintain a sporadic dialogue with Dragon about the applications, resulting most recently in the June 22 issuance of a Schedule of Compliance ("the SOC"), which was accurately described by Dragon as a "placeholder" document, effectively keeping the applications on hold for the indefinite future. NSD should not be penalized for having the patience to wait until DEP demonstrated, by the issuance of the SOC, that it would allow the applications to continue to languish indefinitely. When the SOC issued, and DEP's intentions became clear, NSD promptly filed suit. IV. This Court is Empowered to Compel DEP to Act on the Applications. Both DEP and Dragon characterized the SOC in their Motions to Dismiss as an enforcement decision which is not reviewable by this Court. To the contrary, the SOC is part and parcel of DEP's longstanding failure act on Dragon's pending license applications. Although 38 M.R.S.A. Sec. 1310 (N)(6) requires that no schedule of compliance may issue except in conjunction with a license, this SOC is not linked to any existing license nor does it require Dragon to come into compliance with DEP's solid waste regulations. Instead, it is a "free pass" which allows Dragon to continue to operate unlicensed solid waste facilities on its Thomaston site. As such, it is inextricably linked to Dragon's pending solid waste facility applications and New England Outdoor Ctr. v. Comm'r of Inland Fisheries and Wildlife, 2000 ME 66, 748 A.2d 1009, is inapposite. Because the SOC is an articulation of DEP's decision not to act on Dragon's applications, rather than an enforcement decision, the issuance of the SOC does not ---------------------------------------------------------------------------------------- In this case, the beginning of the limitations period is not so clear-cut, as DEP never made an affirmative declaration that it would not be acting on Dragon's applications. Instead, DEP has continued to maintain a sporadic dialogue with Dragon about the applications, resulting most recently in the June 22 issuance of a Schedule of Compliance ("the SOC"), which was accurately described by Dragon as a "placeholder" document, effectively keeping the applications on hold for the indefinite future. NSD should not be penalized for having the patience to wait until DEP demonstrated, by the issuance of the SOC, that it would allow the applications to continue to languish indefinitely. When the SOC issued, and DEP's intentions became clear, NSD promptly filed suit. IV. This Court is Empowered to Compel DEP to Act on the Applications. Both DEP and Dragon characterized the SOC in their Motions to Dismiss as an enforcement decision which is not reviewable by this Court. To the contrary, the SOC is part and parcel of DEP's longstanding failure act on Dragon's pending license applications. Although 38 M.R.S.A. Sec. 1310 (N)(6) requires that no schedule of compliance may issue except in conjunction with a license, this SOC is not linked to any existing license nor does it require Dragon to come into compliance with DEP's solid waste regulations. Instead, it is a "free pass" which allows Dragon to continue to operate unlicensed solid waste facilities on its Thomaston site. As such, it is inextricably linked to Dragon's pending solid waste facility applications and New England Outdoor Ctr. v. Comm'r of Inland Fisheries and Wildlife, 2000 ME 66, 748 A.2d 1009, is inapposite. Because the SOC is an articulation of DEP's decision not to act on Dragon's applications, rather than an enforcement decision, the issuance of the SOC does not ------------------------------------------------------------------------------------------------ trump this Court's ability to order DEP to make a decision on the pending solid waste applications within a time certain, pursuant to 5 M.R.S.A. § 11001(2). (2) Dragon also argues, inter alia, that Count II of NSD's Petition should be dismissed because NSD had no right to participate in an agency enforcement decision. However, as described above, the issuance of the SOC was part and parcel of DEP's failure to act on the pending license applications. As such, NSD should have had notice of the SOC negotiations and had an opportunity to comment as part of the licensing process. Whether or not the members of NSD had an adequate opportunity to be heard is a factual issue, and is not properly resolved in the context of a motion to dismiss. CONCLUSION For the foregoing reasons, Petitioner requests that the Court deny Dragon and DEP's Motions to Dismiss. Dated at Portland, Maine this 26th day of August, 2005 David B. McConnell Bar Reg. No. 8133
PERKINS, THOMPSON, HINCKLEY & KEDDY
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