Effect of Omya ruling debated

By Candace Page, Free Press Staff Writer • Friday, March 4, 2011

An Environmental Court judge this week ordered the state Agency of Natural Resources to reopen a solid waste permit granted to calcium carbonate company Omya to further consider the project's impact on Vermont's groundwater.

The Burlington Free Press overstated the effect of the ruling when it reported Thursday that Judge Merideth Wright "threw out" Omya's permit to construct a lined landfill in Pittsford to dispose of waste from its calcium carbonate operations. Wright's decision does not explicitly overturn the permit for the facility, which has been built and is in operation.

Wright's decision voided several of the findings of fact on which regulators based the Omya permit. She said it is not sufficient that the agency found that Omya's facility meets the state's 2005 groundwater rules.

Instead, she said, the agency must consider the project in light of a 2008 law that declared groundwater is held by the state in trust for the public and must be managed for the benefit of Vermonters.

To carry out this "public trust analysis" the agency must weigh several questions, including whether Omya's project serves a public purpose and its effects on public use of the groundwater, she wrote.

"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," Wright wrote.

Omya spokesperson Linda Pleiman said Omya is "confident that this matter will be resolved in a manner that allows for the continued and efficient operation of our plant."

"Omya's operations continue to be fully compliant with all applicable regulations and are protective of human health and the environment," she said.

Omya's permit was challenged in court by neighbors of its Pittsford operation who fear their groundwater could be contaminated by an unlined tailings pit that lies under the new, lined facility Omya has built, said Sheryl Dickey, a Vermont Law School professor who represented the neighbors.

Dickey and law school professor Teresa Clemmer said it is not clear to them that the court decision leaves Omya's permit in place.

"How can you have a permit that isn't supported by findings?" Clemmer asked. "It is an unfortunate wording of the decision."

When told that Omya believes the court decision did not void its permit, Agency of Natural Resources lawyer Matt Chapman said, "Omya is opining on what the judge's order means. We are internally discussing what the effect of the order is." No conclusion had been reached Thursday, he said.

Possible Vermont Yankee impact

Meanwhile, a Vermont advocacy group said Thursday it believes Wright's decision supports its arguments in a case involving Vermont Yankee.

The Public Service Board is investigating leaks of tritium, a radioactive isotope, at the nuclear plant. The Vermont Natural Resources Council has argued in that case that the leaks violate the 2008 groundwater law.

"The court's ruling supports our contention that Vermont Yankee's continued contamination of groundwater violates the public trust," VNRC Executive Director Elizabeth Courtney said.

Contact Candace Page at 660-1865 or