Omya Solid Waste Facility Final Certification

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

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In re Omya Solid Waste Facility Final Certification }
(Appeal of Shaw & Brod, formerly } Docket No. 96-6-10 Vtec
Appeal of Residents Concerned about Omya) }
}

Decision and Order on Motion for Summary Judgment

Original Appellant Residents Concerned about Omya appealed from a

decision of the ANR to grant final certification to Omya, Inc.’s lined tailings

management solid waste disposal facility (TMF) at its Verpol Site in the village of

Florence, in the town of Pittsford, Vermont. In a separate decision also issued today

in both this appeal and Docket No. 273-11-08 Vtec, Susan Shaw and Ernest Brod

were granted leave to intervene; 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

pending motion for summary judgment.

Intervenors Susan Shaw and Ernest Brod are now represented by Sheryl

Dickey, Esq., of the Environmental Law Clinic of the Vermont Law School.

Appellee-Applicant Omya, Inc. (Applicant or Omya) is represented by Edward V.

Schwiebert, Esq., and Hans Huessy, Esq. The Vermont Agency of Natural Resources

(ANR) is represented by Catherine Gjessing, Esq. and Matthew Chapman, Esq.

Amicus curiae Vermont Natural Resources Council (VNRC) is now represented by

Jamie Fidel, Esq.

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Procedural History and Factual Background

The procedural history and factual background is repeated here from this

Court’s November 16, 2010 decision and from the related decision issued today only

as necessary to address the pending motion for summary judgment.

Applicant owns and operates a calcium carbonate processing facility, referred

to as the Verpol site, at which it produces calcium carbonate by grinding up and

processing marble. The tailings or waste products of this process have historically

been placed in unlined disposal pits, referred to in the certifications as Tailings

Management Areas (TMAs). Groundwater beneath the Verpol site itself contains

aminoethylethanolamine, a residual chemical component of the flotation agent used

by Omya in its processing operations, as well as containing elevated concentrations

of the elements iron, manganese, and arsenic. In some tests of off-site groundwater,

iron and manganese have been detected at concentrations in excess of secondary

groundwater standards, although such concentrations are similar to those typically

found in area groundwater. Aminoethylethanolamine and arsenic have not been

detected in excess of groundwater standards beyond the boundary of the Verpol

site. Extensive facts and studies have been developed by the parties regarding the

monitoring, chemistry, and risk assessment for these substances in groundwater. If

the present motion for summary judgment turned on these facts, summary

judgment would have to be denied and this matter would have to be set for trial, as

some of these facts are disputed. However, these facts are not required to resolve

the motion before the Court in this decision.

Intervenors are residents in the vicinity of the Omya Verpol Site who are

concerned about the potential for groundwater contamination from the construction

and operation of the lined Tailings Management Facility, including the way in which

the former unlined TMAs are being managed in connection with the development of

the Tailings Management Facility.

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 On October 21, 2008, the ANR issued an interim certification for Omya’s

unlined TMAs; the interim certification expired by its terms on October 21, 2010.

The interim certification was the subject of Docket No. 273-11-08 Vtec, which has

been dismissed as moot in a related decision issued today.

On May 8, 2009, Applicant applied for 5-year final certification of its

proposed lined tailings disposal facility. On May 6, 2010, the ANR approved final

certification of the proposed facility, and, in mid-October, 2010, approved an

amendment to the final certification. The parties agreed that the amendment should

be considered within the existing final certification appeal. The final certification, as

amended, is the subject of the present appeal.

Statutory and Common Law Context

Both the statutory and the common law governing groundwater in Vermont

have developed over time. It is necessary to understand that development to place

the newest development—the public trust statute at issue in this appeal, 10 V.S.A.

§ 1390(5)—in its proper context.

The final certification at issue in the present appeal is issued under Vermont’s

Solid Waste Management statute, 10 V.S.A. ch. 159, and the Vermont Solid Waste

Management Rules (VSWM Rules). Both the statute and the rules require protection

of groundwater in certifying disposal facilities in general. The statute states that the

“certification for a solid waste management facility, where appropriate,” shall

“contain such additional conditions . . . as the Secretary shall deem necessary to

preserve and protect the . . . groundwater . . . quality.” 10 V.S.A. § 6605(b)(6). And

see 10 V.S.A. §§ 6605(b)(5); VSWM Rules § 6-603(3) (“facilities shall be designed to

protect . . . groundwater, . . . and to detect . . . the emission or discharge of

contaminants from the facility to . . . groundwater”). The 2006 amendments to the

VSWM Rules added a subchapter 13, specifically regulating the management of

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mining and mineral processing waste, that requires the facility to be managed “such

that an emission or discharge from the facility will not unduly harm the public

health and will have the least possible reasonable impact on the environment.”

Prior to the adoption of 10 V.S.A. § 1410 in 1985, the common law of

groundwater in Vermont, governing the rights of neighboring property owners,

remained the absolute ownership doctrine of the English common law, largely due

to the state of scientific knowledge about underground water in the eighteenth and

nineteenth centuries, and the lack of evidence regarding changes to that science in

cases brought in the twentieth century. In Chatfield v. Wilson, 28 Vt. 49 (1855) the

Court described the state of knowledge about the behavior of groundwater at that

time as follows:

The laws of the existence of water under ground, and of its progress
while there, are not uniform, and cannot be known with any degree of
certainty, nor can its progress be regulated. It sometimes rises to a
great height, and sometimes moves in collateral directions, by some
secret influences beyond our comprehension.
The secret, changeable, and uncontrollable character of underground
water in its operations, is so diverse and uncertain that we cannot well
subject it to the regulations of law, nor build upon it a system of rules,
as is done in the case of surface streams.
A hundred and fifteen years later, the Court in Drinkwine v. State, 129 Vt. 152, 154–

55 (1970) declined to change that doctrine to one of reasonable use, not because it

found the science to be unchanged by that time, but because the plaintiffs had not

even alleged facts in the complaint to establish a “causal relationship between the

pumping from the artesian wells and the depletion of water from the plaintiffs’

springs.” Id. at 154.

By adopting 10 V.S.A. § 1410, entitled “Groundwater; right of action” (with a

semicolon separating the two clauses of the title), the 1985 legislature both

established state policy with respect to the nature and science of groundwater and

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replaced the common law absolute ownership doctrine with a more modern

correlative rights doctrine for the purposes of determining liability for unreasonable

harm affecting either the quality or the quantity of groundwater.

The 1985 statute, codified in 10 V.S.A. ch 48, also established the ANR’s

comprehensive groundwater management program “to protect the quality of

groundwater resources.” 10 V.S.A. §§ 1392–94. Section 1392(d) required the ANR to

adopt the groundwater management strategy as a rule, “including groundwater

classification and associated technical criteria and standards.”

Prompted by problems experienced in Vermont with proposals for

groundwater withdrawal in large quantities, the legislature again substantially

revised the Vermont groundwater statutes in 2008, in a statute referred to by the

parties as “Act 199” of 2008. It added a subchapter 6 to 10 V.S.A. ch. 48 (10 V.S.A.

§§ 1416–1419), establishing a groundwater withdrawal permitting program, as well

as enacting a temporary interim groundwater withdrawal permit process scheduled

to expire on July 1, 2011. Importantly, the legislature in the same statute rewrote the

policy section of 10 V.S.A. § 1390 to contain five specific policy declarations.

Section 1390(1) advises that the “state should adhere” to the groundwater

management policy “as set forth” in § 1410. The policy set forth in § 1410 addresses

both quantity and quality. Section 1390(2) states the importance of an adequate

supply of groundwater for all uses, including domestic, agricultural, and industrial,

and establishes the reasons for regulating the withdrawal of groundwater; it is

primarily concerned with quantity. Section 1390(3) addresses the policy of the state

to “protect its groundwater resources to maintain high quality drinking water”; this

subsection is concerned only with quality, and only with drinking water. Section

1390(4) addresses the policy of the state that its “groundwater resources . . . be

managed to minimize the risks of groundwater quality deterioration” by regulating

human activities but balancing that policy with the needs of Vermont agriculture;

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this section is also focused on quality rather than quantity.

Section 1390(5) contains three provisions. First, it states the clear policy,

without referring to either quality or quantity, “that the groundwater resources of

the state are held in trust for the public.”

Second, § 1390(5) requires the state to “manage its groundwater resources in

accordance with” three statutory sections, “for the benefit of citizens who hold and

share rights in those waters.” The three statutory references made in the second

sentence of § 1390(5) are to all the policies expressed in 1390 as a whole; to the

groundwater withdrawal permitting program of subchapter 6; and to the

groundwater quality management program of § 1392.

Finally, § 1390(5) explains that the designation of the groundwater resources

of the state as a public trust resource does not establish a broad new right of legal

action by an individual; any new individual right of legal action, beyond the private

right of action already provided by § 1410, must be for the purpose of remedying

“injury to a particularized interest related to water quantity protected under” § 1390.

It places no such restriction on the state’s authority to enforce the public trust in

groundwater established in § 1390(5).

Statutory Construction

In construing a statute, a court’s “paramount goal is to discern and

implement the intent of the legislature.” Miller v. Miller, 2005 VT 89, ¶ 14, 178 Vt.

273 (citing Colwell v. Allstate Ins. Co., 2003 VT 5, ¶ 7, 175 Vt. 61); and see Trickett v.

Ochs, 2003 VT 91, ¶ 22 (court’s “foremost obligation when interpreting a statute is to

ascertain and implement the underlying legislative intent”). In order to accomplish

this, courts must “rely principally on the plain meaning of the statute” if it can be

ascertained. In re Paynter 2-Lot Subdivision, 2010 VT 28, ¶ 6 (mem.) (citing In re

D’Antonio, 2007 VT 100, ¶ 7, 182 Vt. 599).

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 Importantly, courts must “presume that the legislature does not enact

meaningless legislation, and that it chooses its language advisedly so as not to create

surplusage.” Loiselle v. Barsalow, 2006 VT 61, ¶ 16, 180 Vt. 531 (internal citations

omitted). When, as in the present appeal, the statute at issue “is part of a larger

statutory scheme,” the Court must also “’read operative sections of [the] statutory

scheme in context and the entire scheme in pari materia.’” Paynter, 2010 VT 28, ¶ 6

(quoting Cushion v. Dep’t of PATH, 174 Vt. 475, 479 (2002) (mem.)).

Motion for Summary Judgment

The primary issue before the Court in the present motions is whether the

public trust in groundwater established in the policy declaration of 10 V.S.A.

§ 1390(5) requires a public trust analysis with respect to groundwater quality issues

in the present solid waste certification, and, if so, whether the analysis comprised in

Findings O through Q of the final certification meets that requirement.

The Court notes that the validity of the ANR’s 2005 Groundwater Protection

Rule and Strategy is not before the Court in the present appeal. In any event, such a

challenge to a regulation is not within this Court’s jurisdiction. 3 V.S.A. § 807.

Groundwater as a Public Trust Resource in Vermont

It is not necessary to go beyond the plain meaning and structure of the state’s

groundwater statute, 10 V.S.A. ch. 48, reading the operative sections in context, to

discern the legislative intent in adopting a public trust in groundwater. Nothing

about the language or structure of that statute restricts the public trust to

groundwater quantity alone. To the contrary, the second sentence of § 1390(5)

explicitly mandates that the state manage its groundwater resources for the benefit

of its citizens, both with regard to groundwater quantity and quality. With regard

to groundwater quantity, § 1390(5) requires the state to manage its groundwater for

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the benefit of its citizens in accordance with § 1390(1), § 1390(2), and §§ 1416–19.

With regard to groundwater quality, § 1390(5) requires the state to manage its

groundwater for the benefit of its citizens in accordance with § 1390(1), § 1390(3),

§ 1390(4), and § 1392. Groundwater must therefore be managed as a public trust

resource with regard to the quality of groundwater as well as with regard to

quantity.

The third sentence of § 1390(5) does not alter this analysis. That sentence

limits any new individual right of legal action, beyond what was already provided

in § 1410(c), to remedying injury to a “particularized interest related to water

quantity protected” by the policy statements in § 1390 itself. It limits individual

lawsuits citing the public trust doctrine and the other policies of § 1390 to those

individuals whose water quantity is directly affected by violations of those policies;

the private right of action established by § 1410(c) already provides a basis for other

types of individual lawsuits. The third sentence of § 1390(5) simply reserves to the

state the authority to enforce the policies of § 1390 on behalf of the state’s citizens in

general.

Public Trust Analysis

A public trust analysis is distinct from government regulation under the

police power. The 2005 Groundwater Protection Rule and Strategy is a police power

regulation, as is evident from its principle that “[g]roundwater is of critical

importance to the State of Vermont and must be actively protected and managed in

order to protect public health and welfare.” § 12-302(1)(a) (emphasis added).

This distinction between the state’s responsibility for a public trust resource

and its police power was recognized by the Vermont Supreme Court in State v.

Central Vermont Railway, Inc., 153 Vt. 337 (1989), in which it noted that a state “can

no more abdicate its trust over property in which the whole people are interested

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[that is, public trust property] . . . than it can abdicate its police powers in the

administration of government and the preservation of the peace.” Id. at 349 (quoting

Illinois Central Railroad v. Illinois, 146 U.S. 387, 453–54 (1892)). By its nature, the

public trust imposes on the state a “special obligation to maintain the trust for the

use and enjoyment of present and future generations.” Arizona Ctr. for Law in the

Public Interest v. Hassell, 172 Ariz. 356, 368, 837 P.2d 158, 170 (Ariz. Ct. App. 1991).

The Vermont Water Resources Board laid out the methodology for

conducting a public trust analysis in In re Dean Leary, No. MLP-96-04-WB, Findings

of Fact, Concl. of Law, and Order, at 17–20 (Vt. Water Res. Bd. Aug. 1, 1997). It

requires the decisionmaker to determine what public trust uses are at issue, to

determine if the proposal serves a public purpose, to determine the cumulative

effects of the proposal on the public trust uses, and then to balance the beneficial and

detrimental effects of the proposal.

Adequacy of Analysis in Final Certification

In Finding O of the final certification, the ANR determined that the proposed

facility is located in a Class III groundwater area, that industrial and commercial

uses of groundwater are “permissible uses” of Class III groundwater, that the

proposed tailings management facility is an industrial use, and that “the activity

certified herein” is “consistent with the [Class III] groundwater classification.” In

Finding P, the ANR stated that, pursuant to § 12-801 of the 2005 Groundwater

Protection Rule and Strategy, the property line was the “point of compliance” for

measuring the effect of the proposed facility on groundwater, and that the facility as

proposed “will not cause an exceedance of any standard at the point of compliance.”

In Finding Q, the ANR concluded that, provided that Omya complies with

Conditions 30 through 36 of the certification, dealing with monitoring and corrective

action, the public trust requirements of 10 V.S.A. § 1390(5) have been satisfied.

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 Because the 2005 Groundwater Protection Rule and Strategy was issued

under the police power of the state, and has not been amended since the legislature’s

declaration of groundwater as a public trust resource, 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 under 10 V.S.A.

§ 1390(5).1 Findings O through Q of the final certification therefore must be vacated

and remanded for the ANR to carry out its public trust responsibility.

This decision does not predict or require that any substantive aspect of

Omya’s final certification be changed. This decision makes no factual findings at all

about the effect of the proposed facility on groundwater. Rather, it simply requires

that the ANR perform the additional level of public trust analysis required by 10

V.S.A. § 1390(5).

Although this appeal is de novo, the Court is required to apply the

substantive standards that were applicable before the ANR. 10 V.S.A. § 8504(h).

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. Chioffi v. Winooski Zoning Bd., 151 Vt. 9,

13 (1989). 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.

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The Court recognizes the administrative difficulties, mentioned by Omya and the
ANR, if a full-blown public trust analysis were to be required for every small
underground discharge that might or might not affect groundwater. However, the
Court has before it in this case only this final certification, and must rule on it
according to the statutory requirements. It will be up to the ANR to determine how
to resolve those administrative difficulties, and whether to adopt or amend
regulations to incorporate presumptions of compliance for certain classes of
underground waste disposal, or by establishing categorical or general permits, or by
any other means.

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 Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that Findings O through Q of the final certification are hereby VACATED and the

final certification is REMANDED 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. This decision

concludes this appeal.

Done at Berlin, Vermont, this 28th day of February, 2011.

_______________________________________________
Merideth Wright
Environmental Judge

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