Various Documents Relative To Dragon's Quarry Blasting, and Plant Operations
****MEDIA UPDATE**** 2-09-10
Village Soup News Paper Article Re: Law Court from Home Page
"Can dust and vibration trespass?
Maine Supreme Court considers Darney vs. Dragon suit
By Lynda Clancy
Feb 10, 2010
Whether dust and vibrations can be considered valid trespass will be considered Wednesday, Feb. 10 before the Maine Supreme Judicial Court.
The oral arguments rest on a 6-year-old dispute between Stephen and Kathy Darney of Thomaston and their neighbor, cement manufacturer Dragon Products LLC, which also operates a nearby limestone quarry.
The Maine law court will consider the question at the request of U.S. District Court, which hopes the Maine justices will determine whether Maine recognizes that trespass based on intangible invasions of dust and vibrations can be valid, and if so, if that trespass requires proof of actual and substantial damages.
"The Supreme Judicial Court disposition of the certified questions will ultimately determine the viability of the Darneys trespass claims," wrote U.S. District Court Judge George Z. Singal on Aug. 6 before placing the request before the law court.
The arguments by lawyers for Stephen Darney of Thomaston as well as lawyers for Dragon Products Company LLC will begin at 1 p.m. on Wednesday, Feb. 10.
The certification, the court said, arises from the Darneys’ initial complaint, "alleging that the waste products and vibrations emitted by Dragon Products’ cement facility constitute common law trespass on their property. Dragon Products argues that the law in Maine does not recognize trespass actions for intangible invasions to property, either statutorily or at common law."
The case, which was initially filed six years ago in county court and has since landed in federal court, originally claimed that dust and vibrations from cement plant operations at Dragon Products LLC invaded the Darneys' property, causing physical harm and property damage, and disturbing peace of mind.
The Darneys and Dragon have been at odds since 2004 when neighbors -- the Darneys, as well as a group of residents organized as Neighbors for a Safe Dragon -- pursued county and federal court action against the cement manufacturer, citing environmental and health concerns from cement manufacturing and quarrying of limestone.
Dragon Products continues to counter, according to court documents, that the Darneys are unable to prove essential elements of their claims.
U.S. District Court is asking the Maine Supreme Court to discuss and decide whether dust and vibrations are to be considered under the traditional view of trespass -- that smoke, gas, noise or other invisible particles are not actionable -- or under the modern theory of trespass, which considers invasions of intangible matter as actionable if they cause property damage sufficient to infringe upon property owners' rights.
U.S. District Court is raising these points, citing cases from around the country against smelting and refining companies, and aluminum manufacturers.
Dragon is urging U.S. District Court to adhere to a traditional perspective while the Darneys prefer the modern theory. Dragon lawyers Peter Culley and Eric Wycoff of the Portland firm Pierce Atwood said that even if Maine recognized trespass of dust, the state would still require proof of actual and substantial damages.
"If this court were to recognize a common law trespass claim for intangible intrusions, then this court should also require proof of actual and substantial damages," wrote the lawyers in October. "To do otherwise would permit litigants to file trespass actions to recover for, as alluded to above, unpleasant cooking odors, loud music, or bright lights on the exterior of a neighbor's house, to name a few."
Attorneys for the Darneys counter that the modern view of trespass has been adopted by courts of other states.
"Modern scientific advances have caused many courts to abandon the notion that an invasion by smoke, dust, particles or forces is not physical," wrote attorney Peggy McGehee of the Portland firm Perkins Thompson. "They have instead allowed plaintiffs to claim trespass by invisible contaminants and forces, while at the same time limiting such claims by requiring proof of actual or substantial damage."
"Despite the rather fundamental opposition, both parties agree that the Supreme Judicial Court of Maine has not answered the question at hand," wrote Judge George Zingal.
Because the modern theory "works fundamental changes to the doctrine of trespass, which changes extend beyond the principal question here regarding tangible versus intangible invasions," Zingal recommended that the changes are best made by the Maine Supreme Judicial Court.
The case
The Darneys purchased their home in 2002 on Old County Road, and in November 2004 filed a case against Dragon, alleging that Dragon operations had clouded the Darneys' home with dust, shaken and cracked the walls of their house, and contributed to the family's respiratory problems.
Dragon is owned by Giant Cement of South Carolina, which in turn is owned by Spanish company Cementos Portland Valderrivas. Dragon has been operating in Thomaston since 1928 and has grown in operation and size during the last decade. In 2004, the Maine State Chamber of Commerce bestowed its annual Maine Investor Award on Dragon, commending the company for its $50 million plant modernization, which began in 2003 and included environmental improvements.
The company also received the Governor’s Award for Pollution Prevention presented by the Maine Chamber and Business Alliance, and the Governor’s Award for Environmental Excellence presented by the Maine Department of Environmental Protection.
That same year, the grassroots Neighbors for a Safe Dragon turned to the state's environmental agency following a blast of fugitive dust from the plant’s stack, and questioned the DEP's slow processing of Dragon waste permits. The latter issue was resolved last year when the state gave conditional approval to the company to close its two waste piles.
The Darney case, meanwhile, crawled through Knox County Superior Court, and in October 2007, Justice Jeffrey Hjelm dismissed three of the six Darney counts – nuisance, strict liability and personal injury – of that 2004 suit, leaving two remaining counts in the suit – trespass and injunction – to go to trial.
In February 2008, the Darneys filed a new complaint against Dragon in Knox County Superior Court, saying dust and vibrations from cement plant operations had invaded the Darneys' property on Old County Road on a continuing basis since 2004, causing physical harm and property damage, and disturbing peace of mind.
"The earthquake-like vibrations and booming sounds shake their walls, glassware and light fixtures," wrote McGehee.
The complaint said the dust from the plant, including the quarry, cement manufacturing facility, waste piles and roads, migrates off Dragon property to residential property, including that of the Darneys.
McGehee said the Darneys obtained in 2007 "expert testimony on the structural damage to their home and barn from Dragon's approaching blasting operations since Nov. 12, 2004, and the cost (in the range of $80,000) to repair such damage." She asked the court to consolidate the 2008 case with the 2004 case.
Then Dragon asked federal judges to move the Darney case from Knox County Superior Court to U.S. District Court in Portland. In making the request, Dragon cited federal statutes that say, in part, that corporations are citizens of the states by which they have been incorporated.
In Dragon's case, the company said it is a Delaware limited liability company.
"At all relevant times, the sole member of Dragon Products Company, LLC, is Giant Cement Company, which is a Delaware corporation with its principal place of business in South Carolina," Dragon told the court. "Thus, Dragon Products Company, LLC, is a citizen of Delaware and/or South Carolina, and not a citizen of Maine."
According to court documents, of Giant's shares, 85.74 percent are owned by Cementos Portland Valderrivas, S.A.; 6.65 percent are owned by Cementos Lemona, S.A.; and 7.61 percent are owned by Telsa S.A. Y Compania, SRC. All three of Giant's shareholders are Spanish companies. All of Telsa’s shares are owned by Lemona. Of Lemona’s shares, 98.5 percent are owned by CPV. The remaining shareholders of Lemona are believed to be Spanish citizens, the documents said. CPV is a publicly traded company, traded on the Madrid stock exchange.
In 2008, Dragon asked the federal court to take over the case, saying the civil action arose between citizens of different states in which the matter in controversy against Dragon exceeds the sum of $75,000, exclusive of interest and costs.
While the Darneys and McGehee initially opposed moving the 2008 case to federal court, they changed position when Knox County Superior Court refused to consolidate what was left of the 2004 case with the Darneys' new 2008 case, and the Darneys asked the court to dismiss their 2004 court case altogether.
Judge Zingal wrote in his 2009 order that while Dragon said the Darneys complained of the same continuing harms -- allegations of constant noise, disruptive blast vibrations and toxic odors -- and sought redress for the same injuries in their 2004 and 2008 cases, the company was ignoring the Darneys' effort to restrict their complaints to claims arising since Nov. 12, 2004.
He wrote that the 2008 case included new factual allegations and new evidence and ordered that the Darneys could proceed with claims that arose after Nov. 12, 2004. "
***MEDIA UPDATE 1/12/09***
Local news paper article on recent Federal Court Summary Judgement Ruling: (story from VillageSoup.com)
"BANGOR (Jan 12): A judge has ordered that a suit filed against Dragon Products by Thomaston residents Stephen and Kathy Darney may proceed in federal court, despite the cement manufacturer's contention that a Maine court already argued and decided a similar Darney case.
Last week, U.S. District Court Judge George Singal wrote: "The court orders that the defendant's motion for summary judgment is hereby denied. Plaintiffs may proceed with their Darney II claims, all of which arose after Nov. 12, 2004."
On Jan. 9, U.S. District Court Judge Margaret J. Kravchuk, in a conference call with attorneys, began identifying which witnesses could testify and under what parameters.
The latest orders follow four years of litigation between the Darneys and Dragon, since 2004 when neighbors -- the Darneys, as well as a group of residents organized as Neighbors for a Safe Dragon -- pursued county and federal court action against the cement manufacturer, citing environmental and health concerns from cement manufacturing and quarrying of limestone. While the other court actions have been dropped, the Darneys' suit now continues in federal court.
The Darneys had purchased their home in 2002 on Old County Road, and in November 2004 filed a case against Dragon, alleging that Dragon operations had clouded the Darneys' home with dust, shaken and cracked the walls of their house, and contributed to the family's respiratory problems.
Dragon is owned by Giant Cement of South Carolina, which in turn is owned by Spanish company Cementos Portland Valderrivas. Dragon has been operating in Thomaston since 1928 and has grown in operation and size during the last decade. In 2004, the Maine State Chamber of Commerce bestowed its annual Maine Investor Award on Dragon, commending the company for its $50 million plant modernization, which began in 2003 and included environmental improvements.
The company also received the Governor’s Award for Pollution Prevention presented by the Maine Chamber and Business Alliance, and the Governor’s Award for Environmental Excellence presented by the Maine Department of Environmental Protection.
That same year, the grassroots Neighbors for a Safe Dragon turned to the state's environmental agency following a blast of fugitive dust from the plant’s stack, and questioned the DEP's slow processing of Dragon waste permits. The latter issue was resolved last year when the state gave conditional approval to the company to close its two waste piles.
The Darney case, meanwhile, crawled through Knox County Superior Court, and in October 2007, Justice Jeffrey Hjelm dismissed three of the six Darney counts – nuisance, strict liability and personal injury – of that 2004 suit, leaving two remaining counts in the suit – trespass and injunction – to go to trial.
In February 2008, the Darneys filed a new complaint against Dragon in Knox County Superior Court, saying dust and vibrations from cement plant operations had invaded the Darneys' property on Old County Road on a continuing basis since 2004, causing physical harm and property damage, and disturbing peace of mind.
"The earthquake-like vibrations and booming sounds shake their walls, glassware and light fixtures," wrote the Darneys' attorney, Peggy McGehee of the Portland firm Perkins, Thompson, Hinckley and Keddy, in that new suit, which introduced new DEP data on behalf of the Darneys.
The complaint said the dust from the plant, including the quarry, cement manufacturing facility, waste piles and roads, migrates off Dragon property to residential property, including that of the Darneys.
McGeHee said the Darneys obtained in 2007 "expert testimony on the structural damage to their home and barn from Dragon's approaching blasting operations since Nov. 12, 2004, and the cost (in the range of $80,000) to repair such damage." She asked the court to consolidate the 2008 case with the 2004 case.
Then, Dragon asked federal judges to move the Darney case from Knox County Superior Court to U.S. District Court in Portland. In making the request, Dragon cited federal statutes that say, in part, that corporations are citizens of the states by which they have been incorporated.
In Dragon's case, the company said it is a Delaware limited liability company.
"At all relevant times, the sole member of Dragon Products Company, LLC, is Giant Cement Company, which is a Delaware corporation with its principal place of business in South Carolina," Dragon told the court. "Thus, Dragon Products Company, LLC, is a citizen of Delaware and/or South Carolina, and not a citizen of Maine."
According to court documents, of Giant's shares, 85.74 percent are owned by Cementos Portland Valderrivas, S.A.; 6.65 percent are owned by Cementos Lemona, S.A.; and 7.61 percent are owned by Telsa S.A. Y Compania, SRC. All three of Giant's shareholders are Spanish companies. All of Telsa’s shares are owned by Lemona. Of Lemona’s shares, 98.5 percent are owned by CPV. The remaining shareholders of Lemona are believed to be Spanish citizens, the documents said. CPV is a publicly traded company, traded on the Madrid stock exchange.
Last February, Dragon attorneys Peter Culley and Eric Wycoff of the Portland firm Pierce Atwood asked the federal court to take over the case, saying the civil action arose between citizens of different states in which the matter in controversy against Dragon exceeds the sum of $75,000, exclusive of interest and costs.
While the Darneys and McGeHee initially opposed moving the 2008 case to federal court, they changed position when Knox County Superior Court refused to consolidate what was left of the 2004 case with the Darneys' new 2008 case, and last May, the Darneys asked the court to dismiss their 2004 court case altogether.
U.S. District Court Judge Zingal wrote in his order last week that while Dragon said the Darneys complained of the same continuing harms -- allegations of constant noise, disruptive blast vibrations, and toxic odors -- and sought redress for the same injuries in their 2004 and 2008 cases, the company was ignoring the Darneys' effort to restrict their complaints to claims arising since Nov. 12, 2004.
He wrote that the 2008 case includes new factual allegations and new evidence.
"Undeniably, the two complaints overlap," he wrote. "However, plaintiffs who bring subsequent suits for successive instances of trespass or nuisance must frequently plead similar facts, as the alleged harm continues unabated from one period to the next."
He also said that while Dragon argued that the court should not relitigate factual issues already decided if an identical issue was determined by a prior final judgment, the federal court can question whether the county court's order "possesses sufficient finality for purpose of issue preclusion."
Instead, he said the Knox County Superior Court's partial summary judgment in 2007 "does not preclude plaintiffs from litigating the distinct factual issues underlying Darney II claims."
The better course of action, he said, was to permit pretrial motions, and he ordered that the Darneys could proceed with claims that arose after Nov. 12, 2004."
DRAGON CEMENT'S AIR EMISSIONS LICENSE (WHAT THEY CAN BURN IN THE KILN).
DRAGON IS KISSING UP TO THE LOCALS: We shall see how genuine their concerns really are:
Letter to Jim Dusch (Policy Services)-Office of the Commissioner Maine Department of Environmental Protection:
Please Note:
The following letter is a precise description from our attorney's regarding the myriad of Dragon Cement violations and should be read prior to attempting to understand the information with the associated documents on this page. The issues addressed here by our attorney's are 1.) Ground Water and Surface Water Violations 2.) Air Emissions and Opacity Violations 3.) Blasting Violations 4.)Testing [water] [air] [blast monitoring], and finally the extensive list of resident/business complaints, and the Conclusion requesting corrective action and compliance. Also, most of the "violation" document links associated with this 'cover' letter are below, and I apologize for not having them in sequential order. However, they are of great value in understanding the serious impact has on this Mid-Coast Maine Region. I strongly encourage thouroughly reading through all of them for a better understanding of the "big picture" here.
It is also very important to recognize the "recommendations" in this letter, and I note that many seemed to be ignored, such as monitoring for the same contaminants that come from the stack, and other testing. I believe that no expense should be spared, and Dragon is ultimately responsible for the contamination it has created. It is not the communities responsiblity to fund any of the testing resulting from Dragon's operations here. Nor is it the Maine DEP's responsibility to cover Dragon's expenses for violation of the licenses and regulations the [Department] or Federal Government sets, therefore placing the burden back on the Taxpayer for problems that originated from Dragon Cement's entire operation. Although it is the MDEP's responsiblity to ensure that ALL regulations are strictly adhered to, and any corrective action which is warranted is then applied.
Dragon Cement LLC, Concealing the truth from Officials.
"Thomaston resident files new complaint against Dragon" Times-Village Soup Local Newspaper Article:
"Family documents harmful dust from Dragon plant". Courier Gazette, Local Newspaper Article:
"Couple Wants Dragon's Records". Courier Gazette, Local Newspaper Article:
CKD Water Test "B Series Wells" and Exceedances of Drinking Water Standards:
CKD Water Test "C Series Wells" *Note that there is still information not provided which is of major concern.
Dragon Surface Water Exceedeces and tests: *Note that there is still information not provided which is of major concern.
It should be duly noted at the time these tables were prepared Dragon Cement did not adhere to DEP's License requirements for submitting their testing information. I suspect and have good reason to believe (given the past history we are already aware of) that there are many "missing" documents or requirements which were not being adhered to then, and may still not be to date even into the future should penalties for the failure to submit such on time be lax.
The main problem with ensuring Dragon, and other cement manufacturers are complying with ALL of their license's is that a myraid of them exist, and there simply aren't enough State and or Federal Officials to enforce every stipulation of each license requirement. (Empahsis Supplied) It is most unfortunate and probably true for many other industries as well. Although the cement industry is the primary focus on this website.
Dragon's Air Emissions License Recent "Amendment":
http://mainegov-images.informe.org/dep/air/licensing/TitleVlicenses/a326ba.pdf
Rules and cited laws pertaining to closure and reclamation of the CKD and Clinker Piles:
/Documents/Waste Review Criteria Law.pdf
*Note: Under section "Statutory Review Criteria" 38 MRSA (Maine Revised Statutes Annotated) section 1310-N(1)(A): " The facility will not pollute any water of the State, contaminate the ambient air, constitute a hazard to health of welfare or create a nuisance...." (Emphasis Added) Further, it should be noted that even prior to Dragon's "Applications for Closure", it had already been determined that there existed "contamination" of ground water, surface water, and air emission violations as well. It is my understanding from documents, extensive research, email's, etc., that Dragon Cement has a long standing history of significant environmental contamination violations, and they continue to operate as if the law does not apply to them, or so it appears to be the case. Dragon's "Violation History" is indeed lengthy and as long as the CKD and Clinker piles remain exposed to the elements (especially heavy rains and high winds) the ground water and ambient air will continue to be impacted by the contaminants contained in both waste piles not to mention what comes from their use of enormous amounts of explosives, and from the continuous use of fossil fuels and whatever else they incinerate, to fire it's kiln.
Additionally, Dragon's "new" closure license is stringent indeed, however, I have serious doubts regarding the enforcement of the requirements of that license due to the significant lack of oversight in the past, and during the next 20-30 years or more it will take to "reclaim" the cement kiln dust/clinker pile's. It is most certain that will require a constant watch and frequent testing of the surrounding ground water, air, and emissions, on and off site, to ensure compliance with the new license and the "renewal" of Dragon's Air Emissions License which requires monitoring of contaminants such as Mercury, lead, dioxins, etc., from it's smoke stack.
License for Reclamation with Conditions:
http://mainegov-images.informe.org/dep/bep/2007/06-21-07/Dragon%20Closure%20_Final%20Draft_%20061407.pdf
*Note: Indeed this license is very dependent upon frequent inspection and testing requirements, however, there remains significant concern and justly so, whether or not the "requirements" will be adhered to given Dragon's past track record. ( Emphasis Supplied )
This next document (United Steel Workers Union) is simply another indication that legitmate reasons exist to suspect decitfulness regarding environmental concerns for this facility:
Dragon Quarry Expantion-November 3, 1987 Site Location Order (Maine Department of Environmental Protection) #L-004152-16-B-A
/Documents/Site Location Order-1987.pdf
*Note: Section 8 "Groundwater" subsection A. "The applicant has provided adequate evidence of financial capacity and techincal ability to meet air and water pollution control standards". Then subsection B- "The applicant has made adequate provision for solid waste disposal, the [control] of offensive odors, AND healthful water supplies as described in section 8.
This is a significant piece of evidence in that it is inferred Dragon Cement had the capability 21+ years ago to "control" it's "Air, Water, and "offensive odors", and yet complaints were filed to the DEP and Town of Thomaston (not including the Police and Fire dept's.) regarding "odors", Air (dust problems), blasting vibrations, noise, etc., thereafter, and even into the current year 2008 with at least blasting vibration complaints that I am aware of. This seems completely unacceptable and shows blatent disregard for the environmental regulations which Dragon Cement is to obide by.( i.e. "Overloading" the drilled holes with explosives which caused excessive ground vibrations. Failing to properly calibrate seismographs on an annual basis. Knowingly allowing huge amounts of dust to exit the facilities buildings (pretending it wasn't a problem), again see the section "Complaint History" just below, and then video evidence I posted on YouTube and even DEP video (unfortunately the video is too long for me to post) with accompanying Laboratory air monitoring results indicating exceedences for particulate matter which included significant limestone particulate in the air we breathe, recently in 2007, and I can't even imagine what results would have indicated 5-20 years ago shoud the DEP have monitored then? My guess would be a near constant air particulate exceedence depending on wind direction and other variables. Obviously, the health of the residents living here is of major concern given the significant evidence of dust (including silica), groundwater contamination, and foul odors (Sulfur, and or Acidic like smells). Prior to the "modernization" the "odors" from the "short smoke stack" were extremely intense, very unpleasant, and would fill my home on a fairly regular basis.
The damage done to the environment over decades of this activity cannot even remotely be measured, and who knows what consequential health effects residents and wildlife may have been suffering as a result of the combination of the blasting agents used, and the process by which cement is made.