Environmental and Natural Resources Law Clinic
Preventing Groundwater Pollution in Vermont
When the ENRLC opened its doors in 2003, one of the first cases the clinic accepted involved the representation of a grassroots group of citizens calling itself Residents Concerned about Omya (RCO). Omya is a Swiss corporation that operates a marble quarry and mineral processing facility in Florence, Vermont. RCO's members, who live close to Omya's operations, had been living with the odors, noise, dust, traffic, and potential groundwater contamination emanating from Omya's operations. Omya was dumping large volumes of industrial waste into unlined open pits in contact with the groundwater. The Vermont Department of Environmental Conservation (DEC) had granted Omya an exemption from regulation under the states' solid waste laws. The waste contained a variety of industrial chemicals, some of which had not been disclosed to the public or the agency. Nor had they been analyzed to determine their toxicity. This method of waste disposal had been going on for years and had resulted in enormous piles of waste growing larger every day.
Since their homes and drinking water wells lay down-gradient from the waste piles, members of RCO were understandably concerned about what was in the waste, whether it could leach into the groundwater, and why the state was not regulating it. Pleas to DEC to take enforcement action had gone unheeded, and attempts to persuade the Environmental Commission to revise the Act 250 permit to impose stricter conditions had failed. So RCO turned to the clinic for help.
One of the first things the clinic did, after careful research by the student clinicians, was to file a Petition for a Declaratory Ruling with DEC seeking a ruling that Omya's waste was not exempt under the Vermont Solid Waste Management Regulations. The clinic also sought an Order prohibiting Omya from dumping the waste in open pits pending the issuance of a proper solid waste facility certification. After considering the evidence and arguments submitted by RCO and Omya, the DEC Commissioner issued a determination that the Omya waste should be regulated; however the ruling was limited to the disposal of future waste and did not apply to the old waste that had accumulated on site. So the problem remained.
Over the succeeding years a large number of student clinicians, fellows, and staff attorneys worked on the case. It was a roller coaster ride complete with victories and defeats. These are some of the highlights.
- A mediation process that did not resolve the waste disposal issue but did produce a number of improvements in Omya's operations that led to less noise, odor, and dust.
- A study by an independent consultant that discovered the presence of Aminoethylethanolamine (AEEA) in the waste and in the groundwater onsite. The study was ordered by the Vermont legislature after a vigorous lobbying effort led by Annette Smith of Vermonters Concerned about the Environment. This eventually led Omya to stop using the chemical and to switch to a more environmentally acceptable process.
- Another study commissioned by RCO that discovered the presence of elevated levels of arsenic in the groundwater on site. Though disputed by Omya, RCO's experts testified that it originated with the waste piles. Omya eventually instituted an ongoing monitoring program to insure that the arsenic does not reach drinking water supplies.
- A decision by DEC to repeal the exemption provision under which Omya had operated for many years. The new provision outlaws open dumping of wastes like Omya's and provides much greater protection for groundwater.
- A preliminary ruling by the Federal District Court in Vermont that Omya was liable for violations of the Resource Conservation and Recovery Act. The court later reversed itself and found in favor of Omya. RCO appealed to the Second Circuit but lost on procedural grounds.
- The issuance of an interim certification requiring Omya to cease dumping the waste in open pits and adopt a more secure method of disposal.
- RCO appealed the interim certification to the Vermont Environmental Court and successfully argued that DEC had failed to make a determination under a new Vermont statute declaring that groundwater was a public trust resource requiring special protection. This was the first application of the new law and resulted in DEC adopting an interim policy with a commitment to publish a final policy that should provide another layer of protection for drinking water supplies.
At this point there are no pending legal actions against Omya. The long battle over the waste disposal is over, at least for now. Although the residents did not accomplish everything they had hoped for including the complete removal of all the waste on site, there is no question that things have greatly improved. From a legal standpoint the difference is night and day. When the clinic took the case Omya's waste was completely unregulated; now it is subject to the same requirements that apply to other industrial operations. Before the clinic got involved Omya was ignoring the complaints of the neighbors about dust and noise and traffic; now those problems are much less severe and Omya is more responsive to complaints. Before the clinic intervened the DEC was unwilling to repeal the mineral waste exemption and write tougher new rules; now those rules are in place for all mineral processing operations in the state. Also thanks to the clinic's efforts the public trust doctrine has been recognized as a factor to be considered in permitting future waste disposal that may threaten groundwater.
Finally, the RCO v. Omya case has provided a terrific learning opportunity for the many students who worked on various aspects of the case over the past ten years. Some of these clinicians got to appear in federal court and present expert testimony and cross examine Omya's experts. Others drafted briefs and conducted discovery. Others learned how to file and argue a case in Vermont's unique Environmental Court. All of the clinicians had the opportunity to work with a wonderful group of clients and realize what a responsibility it is for a lawyer to represent individuals with a real stake in the outcome.