STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
} 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.
1 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.
2 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
3 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.
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STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
} 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.
1 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.
2 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
3 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
4 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;
5 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).
6 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
7 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
8 [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.
9 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.
1 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.
10 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