STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
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In re Omya Solid Waste Facility }
Interim Certification and } Docket No. 273-11-08 Vtec
Final Certification } Docket No. 96-6-10 Vtec
(Appeals of Residents Concerned about Omya) }
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Decision and Order on Motion to Dismiss for Lack of Party Status
In Docket No. 273-11-08 Vtec, Appellant Residents Concerned about Omya
appealed from a decision of the Vermont Agency of Natural Resources to grant
interim certification to Omya, Inc.’s solid waste disposal facility at its Verpol Site in
the village of Florence, in the town of Pittsford, Vermont. In Docket No. 96-6-10
Vtec, Appellant appealed from a decision of the ANR to grant final certification to
Omya, Inc.’s solid waste disposal facility at the same site.
Appellant Residents Concerned about Omya (Appellant or RCO) is now
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., Hans Huessy, Esq., and Michael A. Stahler, 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 represented by Jon Groveman, Esq.
1 David K. Mears, Esq., who remains listed as co-counsel, is on leave from the
Vermont Law School for the 2010–11 academic year.
1
Applicant owns and operates a calcium carbonate processing facility in the
village of Florence, located in the town of Pittsford, 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). It is undisputed that
groundwater underneath the Verpol Site, immediately downgradient from the
TMAs, contains aminoethylethanolamine, a 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. The parties also do not
dispute that, 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. It is
also undisputed that aminoethylethanolamine and arsenic have not been detected in
elevated concentrations in groundwater beyond the boundary of the Verpol Site.
On August 15, 2005, Applicant applied to the ANR for interim certification of
its unlined tailings disposal pits. On October 21, 2008, the ANR issued an interim
certification for the unlined tailings disposal pits. The interim certification is the
subject of Docket No. 273-11-08 Vtec.
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, approved an amendment
to the final certification. The parties have agreed that the amendment should be
considered within the existing final certification appeal. The final certification, as
amended, is the subject of Docket No. 96-6-10 Vtec.
2
Motion to Dismiss for Lack of Party Status
Appeals of ANR decisions are governed by 10 V.S.A. § 8504 and V.R.E.C.P. 5.2
Under V.R.E.C.P. 5(d)(2), once an appellant has claimed party status as a person
aggrieved pursuant to 10 V.S.A. § 8504(a), that appellant is accorded party status
unless the Court otherwise determines on its own motion, by ruling on a motion to
dismiss, or by ruling on a motion to intervene. Applicants have moved to dismiss
the appeals for Appellant RCO’s lack of standing and for failure to state a claim
upon which relief can be granted.
First, unincorporated associations, as well as for-profit and non-profit
corporations, fall within the definition of “person” under 10 V.S.A. § 8502(6). A
person is considered to be “aggrieved” by an ANR decision, and therefore entitled
to appeal the decision under § 8504(a), if that person “alleges an injury” to a
“particularized interest protected by” the listed statutes (which include 10 V.S.A.
chapter 48 (groundwater protection) and chapter 159 (waste management), and the
injury is “attributable to [the] decision” on appeal, and “can be redressed by” this
Court. 10 V.S.A. § 8502(7).
To have standing as an organization, RCO must show that its members have
standing individually, that is, that one or more of them meets the criteria of being a
“person aggrieved” under § 8502(7). RCO must also show that the interests it
asserts are germane to its organizational purpose and that the claim and relief
requested do not require the participation of the organization’s individual members.
In re: Entergy Nuclear/Vermont Yankee Thermal Discharge Permit Amendment,
No. 89-4-06 Vtec, slip op. at 7 (Vt. Envtl. Ct. Jan. 9, 2007) (Wright, J.) (citing Parker v.
2
Although, after the July 2010 judicial reorganization, the rules are now referred to
in the statute (4 V.S.A. § 30(a)(1)(D)) and in the Reporter’s Notes as the “Vermont
Rules for Environmental Proceedings,” Rule 7 of the rules themselves still gives the
rules’ title as the “Vermont Rules for Environmental Court Proceedings” and the
official abbreviation as “V.R.E.C.P.”
3
Town of Milton, 169 Vt. 74, 78 (1998)); Hunt v. Washington State Apple Advertising
Comm., 432 U.S. 333, 343 (1977).
Although RCO has not provided any information about its organizational
structure or purpose, it appears to be an unincorporated community association of
specific individuals, unlike the two incorporated not-for-profit organizations
discussed in Entergy Nuclear/Vermont Yankee, No. 89-4-06 Vtec, slip op. at 6 n.5.
Cf. Vermont Agency of Natural Resources v. Upper Valley Regional Landfill Corp.,
159 Vt. 454 (1992) (allowing intervenor unincorporated association to appear
through lay representative). RCO’s membership includes at least five members who
are residents of Florence or Pittsford and have submitted statements in this
proceeding; RCO’s memorandum states that its members use the Pittsford-Florence
public water supply or private wells for drinking water and domestic uses.
Five of RCO’s members who are residents of Florence have submitted sworn
(but not notarized) statements describing their use of surface waters and ground
water supplies near Omya’s Verpol Site. RCO members Ernest Brod and Umberto
Rosato use private wells for their drinking water and domestic uses; their statements
state their concern about the potential for chemicals from the unlined TMAs to
contaminate their wells. Mr. Rosato also used a brook on the boundary of his
property and that of Omya for drinking water as a child, but no longer does so
because of his concern about contamination of the water. RCO member Beverly
Peterson uses the public water supply in Florence and is concerned about the
potential for its contamination with chemicals leaching into the groundwater from
Omya’s unlined TMAs. RCO members Susan Shaw and Robert DeMarco describe
their use and enjoyment of Smith Pond and Otter Creek, claiming that they no
longer swim in or eat fish from either water body because of their concern over the
potential for contaminated groundwater from the unlined TMAs at Omya’s Verpol
Site to contaminate nearby surface waters.
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Absence of Need for Participation of Individual Members
The relief requested by RCO—the remand of the permit applications for
consideration by the ANR under a public trust doctrine applicable to groundwater—
does not require the participation of its individual members. The issues in this
appeal relate to the interests of RCO’s members in the effect on groundwater of
Omya’s disposal of tailings at its Verpol Site, and not to any private claims, for
example, for damages or nuisance. See Hunt, 432 U.S. at 343; see also United Food
and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 558
(1996) (ruling that a federal statute may allow certain types of organizations to seek
damages on behalf of their members).
Individual Standing of RCO Members
The question of whether any individual members of RCO would have
standing individually to appeal is analyzed under 10 V.S.A. § 8502(7), which is
specific to appeals to this Court. To have individual standing, the individual
members of RCO must 1) allege an injury; 2) to a particularized interest; 3) which is
protected by the provisions of a law listed in 10 V.S.A. § 8503; 4) that is attributable
to the decision made by the Secretary; and 5) that can be redressed by this Court.
A particularized interest is one that is not necessarily shared by the general
public, and may include the individual members’ recreational or aesthetic interests
in nearby surface waters, as well as their use of groundwater. See In re: Champlain
Marina, Inc., Dock Expansion, Docket No. 28-2-09 Vtec, slip op. at 6 (Vt. Envtl. Ct.
July 31, 2009) (Durkin, J.) (citing Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149
(2009)); see also Friends of the Earth, Inc. v Laidlaw Environmental Services, 528
U.S. 167, 183 (2000). The named RCO members’ interests in a safe domestic and
drinking water supply for themselves and their families, and their recreational use
of surrounding water bodies, are specific enough to establish that the injury alleged
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is to their particularized interests, and not merely to a policy interest of the general
public. See Friends of the Earth, Inc., 528 U.S. at 183–84 (concerns about the effects
of defendant’s discharges on plaintiff’s members’ recreational, aesthetic, and
economic interests in a river were sufficient to establish threat of injury to a
particularized interest); see also Entergy Nuclear/Vermont Yankee, No. 89-4-06 Vtec,
slip op. at 9 (allegations about potential effect of increased thermal discharge on
appellant groups’ members’ interests in the Connecticut River and its wildlife are
specific enough to establish threat of injury to a particularized interest).
RCO argues that its named members would have standing in their own right
because their particularized interests are protected by Vermont’s groundwater
protection statute, 10 V.S.A. ch. 48 and its waste management statute, 10 V.S.A. ch.
159. The groundwater protection statute declares that it is Vermont’s policy “to
minimize the risks of groundwater deterioration by regulating human activities that
present risks to the use of groundwater in the vicinities of such activities.” 10 V.S.A.
§ 1390(4). Additionally, it allows any person to bring an action in equity or tort for,
among other things, “altering the character or quality of groundwater.” 10 V.S.A.
§ 1410(c). Similarly, the waste management statute states that certification of a solid
waste management facility, where appropriate, shall “contain such additional
conditions . . . as the Secretary shall deem necessary to preserve and protect the . . .
groundwater and surface water quality.” 10 V.S.A. § 6605(b)(6). The individual
members’ particularized interests in the quality of the groundwater used for their
domestic water supplies and potentially affecting the surface waters surrounding
the Verpol Site are within the zone of interests protected by these statutes.
For RCO to have standing, it must “allege at least the threat of an injury in
fact” to its members’ protected interests. Town of Cavendish v. Vermont Public
Power Supply Authority, 141 Vt. 144, 148 (1982) (internal quotations omitted). Five
individual members of RCO have submitted statements alleging injuries to their
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interests in the groundwater under the TMAs at issue in these appeals, and in the
surface waters surrounding the Verpol Site. RCO members DeMarco and Shaw
have alleged ongoing injuries to their fishing and other recreational use of Otter
Creek and Smith Pond because of the disposal of tailings at issue in the decisions on
appeal. RCO members Brod and Rosato have alleged injuries to their drinking
water supplies due to the leaching of chemicals into the groundwater from the
tailings disposal. RCO member Peterson also alleges injury to her fishing or other
recreational use of Otter Creek, as well as the town water supply that she uses for
drinking water and domestic uses. At this pretrial stage of the proceedings, the
statute only requires that an organizational appellant’s members allege the requisite
injuries; they need not prove the injuries they allege until it is necessary to do so at
trial.3 See Parker, 169 Vt. at 76.
The injuries to those interests alleged by the RCO members stem from the
Secretary’s decisions to issue the interim and final certifications to Omya; that is,
those decisions are alleged to allow the continued potential for leakage of leachate
from the unlined TMAs even after the lined tailings disposal facility is installed
above them. The Court is able to redress these alleged injuries in this de novo
appeal, by considering whether to issue the interim and the final certification, and, if
issued, what conditions, if any, should be imposed. In making these decisions, the
Court is required to apply the substantive standards that were applicable before the
ANR. 10 V.S.A. § 8504(h). Thus, the named members of RCO have met all the
requirements under 10 V.S.A. § 8502(7) for standing in their own right.
3
Of course, if any issues are raised as to whether such facts are disputed, in
connection with a motion for summary judgment, a litigant may have to come
forward with affidavits or as otherwise provided in V.R.C.P. 56, to show that there is
a genuine issue for trial. V.R.C.P. 56(e).
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Organizational Purpose
The final requirement for RCO to have organizational standing is that RCO
must demonstrate that the interests it asserts in these appeals are germane to its
organizational purpose. Entergy Nuclear/Vermont Yankee, No. 89-4-06 Vtec, slip
op. at 7 (citing Parker, 169 Vt. at 78). That is, an organization’s “abstract interest in
the outcome of an adjudication is insufficient,” even in a case, such as Parker and the
present appeals, in which the public trust doctrine is implicated. Parker, 169 Vt. at
78.
On the one hand, the declarations of its members that RCO presented to the
Court make clear that those members’ primary reasons for joining RCO was their
concern about the potential environmental effects of Omya’s operations. See, e.g.,
Demarco Declaration at 7; Brod Declaration at 7. However, although RCO’s
Memorandum in Opposition to Omya’s Motion to Dismiss states that “RCO formed
in response to concerns over Omya’s improper and unregulated waste disposal
practices and its impact on local water resources,” RCO has not provided any
supporting documents, references to websites, or affidavits to the Court regarding
RCO’s organizational purpose, or, indeed, whether it is a sufficiently defined
organization to have an organizational purpose.
Of course, it is not uncommon in Vermont for a group of neighbors concerned
about a proposed project to name their informal group with an organizational name
for ease of reference when dealing with a proposed project or proceeding with
litigation, rather than listing specific individuals as named parties. For example, in
In re Unified Buddhist Church, Inc., Indirect Discharge Permit, Docket No. 253-10-06
Vtec, (Vt. Envtl. Ct. May 11, 2007) (Wright, J.), an unincorporated association known
as the Lull’s Brook Watershed Association was a named party, however, specific
individuals were also listed as named appellants, so that the issue of organizational
standing did not arise. By contrast, in the present case, although the five RCO
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members who filed declarations have documented their individual standing to bring
these appeals, they are not named appellants and RCO has not submitted sufficient
information regarding RCO’s organizational purposes for the Court to determine its
organizational standing.
Accordingly, on or before November 29, 2010, RCO may supplement its
filings regarding RCO’s organizational purpose(s), to allow the Court to address the
present motion regarding RCO’s standing. If any motion to substitute individual
RCO members as party-appellants in this matter is contemplated, it shall be filed by
the same date. Responses to any such motions or filings may be filed on or before
December 8, 2010.
Done at Berlin, Vermont, this 16th day of November, 2010.
_______________________________________________
Merideth Wright
Environmental Judge
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