STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
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In re Omya Solid Waste Facility Final Certification } Docket No. 96-6-10 Vtec
(Appeal of Shaw & Brod) }
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Decision and Order on Pending Motions
The above-captioned appeal was brought from a decision of the Vermont
Agency of Natural Resources (ANR) to grant final certification to Omya, Inc.’s lined
tailings management solid waste disposal facility at its Verpol Site in the village of
Florence, in the town of Pittsford, Vermont. Intervenor-Appellants Susan Shaw and
Ernest Brod are represented by Sheryl Dickey, Esq., of the Environmental Law Clinic
of the Vermont Law School.1 Appellee-Applicant Omya, Inc. (Applicant or Omya) is
represented by Edward V. Schwiebert, Esq., and Hans Huessy, Esq. The ANR is
represented by Catherine Gjessing, Esq. and Matthew Chapman, Esq. Amicus
curiae Vermont Natural Resources Council (VNRC) is represented by Jamey Fidel,
Esq.
The only issue raised in the Statement of Questions was stated as follows:
Whether the issuance of the final certification is precluded because it
results in groundwater contamination that violates Vermont’s
Groundwater Protection Law [citation omitted] including (1) 10 V.S.A.
§ 1390, relating to the state’s obligation to manage and protect
groundwater as a public trust resource and (2) 10 V.S.A. § 1394,
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The original Appellant—Residents Concerned about Omya (RCO)—was
dismissed; and Intervenors Susan Shaw and Ernest Brod were granted leave to
continue with the appeal in place of RCO, but not to file any new issues in the
Statement of Questions nor to file any additional memoranda on the motion for
summary judgment.
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relating to the standards applied to and the authorized uses of
groundwater.
On February 28, 2011, the Court issued a decision on the parties’ cross-
motions for summary judgment. In re Omya Solid Waste Facility Final Certification,
No. 96-6-10 Vtec (Vt. Super. Ct. Envtl. Div. Feb. 28, 2011) (Wright, J.) (Summary
Judgment Decision). The decision did not address the disputed facts regarding the
“monitoring, chemistry, and risk assessment” for certain substances in groundwater
under or near the Verpol site, noting that these facts were not required to resolve the
motion then before the Court. Id. at 2.
The decision analyzed the statutory law governing groundwater in Vermont
in detail, focusing on the 2008 amendments to 10 V.S.A. ch. 48, which had declared
groundwater to be a public trust resource. Id. at 5-6. In particular, the decision
analyzed the several subsections of 10 V.S.A. § 1390 as they relate both to the quality
and quantity of groundwater. Id. at 7-8.
In arguing that the final certification decision adequately protected
groundwater, the ANR had relied on the fact that it had applied the 2005
Groundwater Protection Rule and Strategy in considering Omya’s application.
However, because this police power regulation had “not been amended since the
legislature’s [2008] declaration of groundwater as a public trust resource,” the Court
ruled that the “ANR’s determination that the proposed facility meets the
requirements of the 2005 Groundwater Protection Strategy and Regulation is not
sufficient to carry out the state’s duty” to manage its groundwater resources in trust
for the public “under 10 V.S.A. § 1390(5).” Id. at 10.
The Court therefore vacated and remanded Findings O, P, and Q of the final
certification “for the ANR to carry out its public trust responsibility.” Id. at 10. The
Summary Judgment Decision specifically stated that it did not “predict or require
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that any substantive aspect of Omya’s final certification be changed,” and that it
made “no factual findings at all about the effect of the proposed facility on
groundwater.” Id. The Court clearly stated that the effect of the decision was
“simply [to] require[] that the ANR perform the additional level of public trust
analysis required by 10 V.S.A. § 1390(5).” Id.
The Court therefore vacated only Findings O, P, and Q of the final
certification, the only findings that had addressed the groundwater issue and
remanded the final certification to the ANR for it to “perform a public trust analysis
and to make such changes, if any, to Findings O through Q and to any other aspects
of the final certification as may be warranted by that analysis.” Id. at 11. The
Summary Judgment Decision also stated that it concluded this appeal. Id.
Intervenor-Appellants’ Motion for Clarification
Intervenor-Appellants have moved for “clarification,” asking the Court to
determine three issues. The motion first asks whether the Summary Judgment
Decision “constituted a summary judgment in their favor and a final judgment.”
Intervenor-Appellants’ Mot. for Clarification at 2. This issue is addressed below
with the motions for interlocutory appeal. The motion next asks whether the
Summary Judgment Decision “invalidate[s] the final certification as a matter of
law.” Id. at 7. Finally, the motion asks the Court to “clarify” that the Summary
Judgment Decision “requires the [ANR} to engage in a process to develop a policy
for what the public trust analysis will include in light of the [Summary Judgment]
Decision.” Id.
In its response to Intervenor-Appellants’ motion and in its own motion for
interlocutory appeal, the ANR has also essentially requested clarification that the
statutory public trust analysis of groundwater resources required by the summary
Judgment Decision is different from the common law public trust analysis
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applicable to lands lying under navigable surface water.
The Summary Judgment Decision requires clarification of the necessary
distinction between a statutory public trust analysis applicable to groundwater,
which has yet to be developed by the ANR, and the common law public trust
analysis applicable to public waters and the lands lying under them. The common
law public trust doctrine has been articulated in Vermont case law and in the
administrative case of In re Dean Leary, No. MLP-96-04-WB, Findings of Fact,
Conclusions of Law, & Order, at 17-20 (Vt. Water Res. Bd. Aug. 1, 1997). The Court
cited Dean Leary simply to show that an administrative body formerly charged with
performing the common law public trust analysis in Vermont had come up with a
suitable methodology to do so. The Court did not require the strict common law
public trust doctrine to be applied by rote to groundwater; rather, the ANR must
develop its own methodology for analyzing the new statutory public trust in
groundwater, bearing in mind the principles developed in both the case law and the
administrative decisions interpreting the related common law public trust doctrine.
The Summary Judgment Decision specifically and emphatically did not
require ANR to engage in any particular process to perform the statutory public
trust analysis, but left it to the ANR to decide how it wishes to proceed, including
whether it wants to engage in rulemaking on this issue for use in this or future cases,
whether it wants to perform a statutory public trust analysis for Omya’s final
certification, whether it wants to proceed with both of those approaches
simultaneously, or whether it wishes to take any other approach.
The Summary Judgment Decision recognized Omya’s and the ANR’s
arguments that the groundwater program would be difficult to administer “if a full-
blown public trust analysis were to be required for every small underground
discharge that might or might not affect groundwater.” Summary Judgment
Decision at 10, n. 1. However, the Court specifically left it to the ANR to determine
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how to resolve those administrative difficulties, stating that the only issue before the
Court in the present appeal was the Omya final certification. The Court noted that it
would be up to the ANR to decide “whether to adopt or amend regulations to
incorporate presumptions of compliance for certain classes of underground waste
disposal, or [to] establish[] categorical or general permits” or to develop “any other
means” to carry out its administrative responsibilities. Id. The decision reiterated
that the Court’s
role is not to set policy for the ANR, just as its role in municipal
appeals is not to set policy for the municipalities. [Citation omitted.]
Therefore, it is for the ANR in the first instance, and not this Court, to
determine how to incorporate the public trust groundwater analysis of
§ 1390(5) into its solid waste certification process, and how to address
or revise Findings O through Q in light of that analysis.
Id. at 10.
The Summary Judgment Decision did not “invalidate” any portion of the
final certification other than Findings O, P, and Q. The only issue in the statement of
questions was whether the final certification should be denied because “it results in
groundwater contamination,” contrary to Vermont’s groundwater statutes. The
Court determined that the ANR had more work to do on Findings O, P, and Q, but
did not “invalidate” any of the remainder of the final certification.
Accordingly, the Summary Judgment Decision is clarified as discussed above,
and Intervenor-Appellants’ Motion for Clarification is otherwise DENIED.
Motions for Permission to File Interlocutory Appeal (V.R.A.P. 5)
ANR has moved for permission to file an interlocutory appeal of the
Summary Judgment Decision. Omya has similarly moved for permission to file an
interlocutory cross-appeal of the decision, or, in the alternative, has filed a notice of
appeal pursuant to V.R.A.P. 3 if the decision is ruled to be a final one from which
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interlocutory appeals cannot be taken. Because no party moved under V.R.A.P. 5.1
to take an appeal of the decision as a collateral final order, the Court will not address
the criteria provided in that rule.
The Court’s ruling was one for partial summary judgment, as a matter of law.
It was in favor of Intervenor-Appellants, in that it decided that the ANR’s
groundwater analysis in the final certification required additional work, but, as may
be seen from the motions for clarification and for interlocutory appeal, it was not
entirely in favor of any one party. It resulted in a remand of only a portion of the
final certification decision.
Just as in Cliffside Leasing, 167 Vt. 569 (1997), the decision concluded the
present appeal by ruling as a matter of law that the ANR needed to do more work
on the application. Although it is a decision that concludes the present appeal, it
does not resolve the controversy between the parties—that must await the ANR’s
decision after remand. The ANR’s decision after remand will itself be appealable,
and may raise fewer or different issues than those raised in the present appeal.
For example, in Cliffside Leasing the Environmental Court had decided only
the narrow legal question of whether the project required major-impact
development review; it then remanded the matter to the municipal panel for the
panel to perform such review. 167 Vt. at 570. Although the Environmental Court’s
decision completely concluded the then-pending appeal, the Supreme Court ruled
that it was not a final disposition of the subject matter but was interlocutory in
nature. It is therefore especially important not to conflate the question of whether
this Court’s decision finally concludes the present appeal with the question of
whether it is a final disposition of the subject matter ready for an appeal to the
Supreme Court.
In the present case, the Court has determined that the ANR must specifically
consider the public trust in groundwater declared by the legislature in 2008, because
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that statute was enacted subsequent to the regulations relating to groundwater
which the ANR had applied in making Findings O, P, and Q of its final certification.
It is entirely up to the ANR how it wishes to proceed with the statutory public trust
analysis it is required to do for the present case. There are undoubtedly many
different ways in which the ANR could approach this task, including but not limited
to doing a public trust analysis specifically for this case, even though it may also
wish to adopt some rebuttable presumptions or general permits by rule or to update
its 2005 Groundwater Protection Rule and Strategy for use in future cases. As
explicitly as possible, the Summary Judgment Decision made clear that it is for the
ANR on remand to determine in the first instance how to meet its responsibilities for
the public trust groundwater analysis required by 10 V.S.A. § 1390(5) in the context
of Omya’s solid waste certification, and how to address or revise Findings O
through Q, if at all, in light of that analysis. Summary Judgment Decision at 10.
Because the ANR has several options before it for resolving this matter on
remand, an interlocutory appeal pursuant to V.R.A.P. 5 is not appropriate. The
ruling involves a controlling question of law in that it decided that simply applying
the 2005 regulation is not adequate to carry out the new responsibilities imposed on
ANR by the 2008 statute. Nevertheless, although there may be a substantial ground
for difference of opinion as to how the ANR should carry out its groundwater
management responsibilities in light of the statutory public trust declaration, there
should not be any ground for difference of opinion that compliance with a 2005
regulation does not in and of itself demonstrate compliance with a 2008 statute.
Even if there were a substantial ground for difference of opinion on that legal
point, however, an immediate appeal will not materially advance the termination of
the litigation as a whole. Rather, it is possible that the ANR’s action on remand will
resolve the contested legal point on appeal, resolve the entire appeal, or generate a
different appeal. Accordingly, both motions for permission to take an interlocutory
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appeal are DENIED.
Done at Berlin, Vermont, this 16th day of May, 2011.
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Merideth Wright
Environmental Judge
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