Could Omya court decision force Yankee shutdown?

By BOB AUDETTE / Reformer Staff
Saturday March 5, 2011

BRATTLEBORO -- A recent ruling by the Vermont Environmental Court relating to groundwater pollution at Omya's calcium carbonate processing facility in Florence could have major implications in regards to the contention that leaks of tritiated water at Vermont Yankee nuclear power plant in Vernon violate the public trust provisions of a groundwater protection law passed in Vermont in 2008.

According to Elizabeth Courtney, the executive director of the Vermont Natural Resource Council, it supports the argument that Yankee should be shut down until groundwater remediation is completed.

"(The ruling) will help protect critical groundwater resources," said Kim Greenwood, VNRC's water program director and staff scientist.

After hearing arguments from Entergy, which owns and operates the plant, the Conservation Law Foundation and VNRC, the Vermont Public Service Board ruled last year that there was no need for the plant to be shut down.

However, the environmental court ruled, as VNRC and the CLF had argued before the PSB, that the groundwater public trust designation is to be broadly interpreted and that the state must manage groundwater as a public trust resource that is to be protected from both over-extraction and pollution.

"Nothing about the language or structure of that statute restricts the public trust to groundwater
quantity alone," wrote Judge Merideth Wright in her opinion. "To the contrary (the statute) explicitly mandates that the state manage its groundwater resources for the benefit of its citizens, both with regard to groundwater quantity and quality."

Sandy Levine, lead counsel for CLF, said the ruling is the first substantive judicial interpretation of legislation that designated the groundwater as a public trust resource.

"The court here confirmed that state agencies have a responsibility to protect groundwater for public uses including drinking water," said Levine, "and the groundwater underneath Yankee is no longer suitable for drinking."

But Deb Markowitz, Secretary of the Agency of Natural Resources, said decisions rendered in the environmental court do not set precedent. She has asked her staff to review Wright's decision and will provide advice on how ANR should respond to the ruling.

If Omya appeals the decision to the Vermont Supreme Court and it rules against it, then the ruling would become precedent which could be applied to Yankee.

The state has an obligation to protect its natural resources, said Markowitz.

"What one person does on their property could have an effect on us all," she said.

In the Omya case, where calcium carbonate is mined, nearby residents raised concerns about groundwater pollution from waste generated by Omya as part of its quarrying operation.

Also having implications for Yankee is the fact that the court dismissed Omya's argument that the fact that the groundwater had not spread outside the borders of its own property shielded it from having violated the groundwater public trust law.

Larry Smith, spokesman for Vermont Yankee, said that throughout the tritium investigation Entergy has acted responsibly in identifying its tritium leak and immediate remediation of groundwater and soil contaminated as a result of the leak.

"At no time did the leak affect public health, safety or drinking water on- or off-site," he said. "Nor was tritium detected above background levels in the Connecticut River."

The doctrine of public trust goes back to the Roman Empire, if not further, said Levine.

"There are certain public resources, and water is one of them, that belong to the public," she said.

Historically, the public trust doctrine applied to public waterways, such as rivers, lakes and other surface waterbodies.

Wright's decision confirms the same doctrine applies to groundwater, said Levine.

The court's decision also confirms that the PSB has the responsibility and authority to protect the groundwater resources at Yankee.

"It confirms that the contamination at the site should not be allowed and that the PSB should order the plant to shut down and the site to be cleaned up," said Levine.

At Yankee, a sample of groundwater was found to be contaminated with tritium in January 2010. The leak was fixed but a large volume of groundwater under the plant remains contaminated.

To date, more than 325,000 gallons of contaminated water has been extracted from the ground and either treated for return into the plant's systems or shipped off to a radioactive disposal site.

In January 2011, Yankee revealed another sample of groundwater, taken from a monitoring well about 150 feet north of the contaminated plume, tested positive for tritium at levels about 10,000 picocuries lower than the Environmental Protection Agency's limit of 20,000 in drinking water.

Following the discovery, CLF called for the Vermont Public Service Board to reconsider its decision to allow Yankee to continue operation while the original leak was being remediated.

During its weekly update with the Nuclear Regulatory Commission on Thursday, Yankee technicians said three of the five underground lines that were suspected to be the source of the tritium leak discovered in January have been tested.

No indications of leakage were found on the Plant Stack Sump Discharge Line, the first Advanced Off Gas Delay Pipe Drain Line and the Second AOG Delay Pipe Drain Line. Pressure testing on the Steam Packing Exhauster Drain Line was indeterminate and a second pressure test was planned. The last line, the Standby Gas Treatment Drain Line, will be pressure tested during the week of March 21.

Bob Audette can be reached at raudette at reformer. com, or at 802-254-2311, ext. 160.