Vermont Environmental Court judge rejects Omya permit

By Candace Page, Free Press Staff Writer • Thursday, March 3, 2011

In the first cases involving Vermont's 2008 groundwater protection law, an state Environmental Court judge has ruled that regulators must take additional steps to consider the impact on groundwater when reviewing projects with a potential to pollute.

Judge Merideth Wright on Wednesday threw out a permit issued last year by the Department of Environmental Conservation to Omya, a company that quarries marble and grinds it up to make calcium carbonate, a material with many industrial uses.

The state solid waste certification would allow Omya to dump tailings from its manufacturing process into a new, lined facility in Pittsford. Nearby residents challenged the permit.
Wright concluded that the 2008 groundwater law declared that Vermont's groundwater is held by the state in trust for the public and must be managed for the benefit of its residents. Many Vermont residents get their drinking water from wells that tap underground sources.

The law requires regulators who are reviewing a permit application "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," Wright wrote.

Efforts to obtain a comment from Omya were unsuccessful Wednesday night.

Omya did not respond to the decision by presstime.

Sheryl Dickey, a Vermont Law School professor, appealed the state permit on behalf of two Pittsford residents.

"This is an important victory for groundwater protection," she said Wednesday.

The Agency of Natural Resources had taken the position that the 2008 law "didn't change what they need to do to protect groundwater," she said. That new law, agency lawyers argued, only applied to the quantity of groundwater available, not its quality. Judge Wright disagreed, saying the law clearly applied to the quantity and quality of groundwater.

Some Omya neighbors have been worried about the company's plans because the new lined facility would be built on top of unlined pits already filled with marble tailings, Dickey said. Groundwater beneath the Omya site contains elevated levels of arsenic, iron, manganese and an industrial chemical used to separate calcium carbonate from the tailings.

In her decision, Wright said she was not judging whether Omya should receive its permit. That is up to the Agency of Natural Resources, she wrote, but the agency must "perform an additional level of public trust analysis" before making its decision.

Contact Candace Page at 660-1865 or