Judge in Yankee suit: Water belongs to Vermonters

By Thatcher Moats
VERMONT PRESS BUREAU - Published: March 4, 2011

MONTPELIER — A leading environmental group says Vermont Yankee has violated a 2008 groundwater protection law because of radioactive tritium leaks at the power plant in Vernon. 

The Vermont Natural Resources Council made that claim in testimony last summer before the Public Service Board, which continues to investigate Vermont Yankee to see whether it should stop operating or take other actions to stop the leaks.

Though the allegations by VNRC were made months ago, the environmental group said a ruling last week by an environmental court judge — the first court decision on the 2008 groundwater law — bolsters their claim.

“This decision really validates our testimony in that case that the public trust doctrine has been violated by Vermont Yankee,” said Kim Greenwood, water program director for VNRC. 

The Legislature in 2008 created a law that declared Vermont’s groundwater a public trust resource after a debate surfaced over extracting groundwater for bottling. 

The Vermont Agency of Natural Resources, the state agency that regulates water quality, determined the law only applied to the quantity of water extracted and not to questions of quality or pollution. 

But ANR’s interpretation of the law was undercut in a decision last week by environmental court Judge Merideth Wright. 

“Nothing about the language or structure of that statute restricts the public trust to groundwater quantity alone,” Wright wrote. “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.”

Greenwood said that because the judge determined “quality” is an element in the public trust law, it shows the tritium leaks by Vermont Yankee constitute a violation of the law. 

A spokesman for Vermont Yankee declined to comment on the allegations by VNRC.

Wright’s ruling came in a case related to a solid waste permit the ANR had issued to Omya, a company that processes calcium carbonate in Pittsford.

Omya had sought permission to dump waste created in the manufacturing process into a lined facility.

The judge determined that because of the 2008 law designed to protect the state’s groundwater resources, the ANR must continue its “public trust analysis” before it can issue a final solid waste permit to Omya. 

Deb Markowitz, secretary of ANR, said the agency has not yet determined how the ruling could affect the agency and hadn’t decided whether it would appeal Wright’s decision to the Vermont Supreme Court. 

“We’re going be looking at the case and analyzing it, and we haven’t had a chance to really do that yet,” she said. 

Markowitz said the agency will look at the ruling in the context of its other water quality programs and that the ruling could require the agency to re-evaluate its existing regulations. 

“But it really does have a significant impact on water quality rules, so we’re doing an analysis,” she said. 

Greenwood explained the 2008 law that made groundwater a public trust resource by comparing it to laws that make surface water, such as streams, a public trust resource. 

“You can have discharges to surface waters, but you have to show that you’re not going to impact somebody else’s use of that water,” she said. 

In her Public Service Board testimony, Greenwood said the 2008 law means that “Every Vermonter owns Vermont’s groundwater.”

According to Public Service Board records, Vermont Yankee has said that because releases of tritium into groundwater have not affected off-site wells, the company has not violated Vermont law. 

Greenwood countered that the law “means that groundwater belongs to all Vermonters, not just to the entity that owns the land above it.”