Excerpt from Testimony given at District One Act 250 Commission hearing on OMYA's application to build a 32 acre waste pile. December 18, 2003.
Transcribed by Annette Smith.

Direct Testimony and Cross-Examination of OMYA's Hydrogeologist, Ameddia Perry of Heindel & Noyes

Tepper: Next witness

Van Schweibert, OMYA attorney: Mr. Perry. Mr. Perry, you’ve been here watching the drill so let’s see if we can move right through this.

AP: Sure thing

VS: Would you please identify yourself for the commission?

AP: my name is Meddy Perry, I’m a hydrgeologist, I work for the firm of Heindel & Noyes, we’re based in Burlington Vermont. My position is I manage the hydrogeology section of that company so my duties involve working on water supply projects, develop water supply wells as public water sources, both gravel and bedrock aquifers as well as exploration for water sources, testing of water quality, water quantity effect of wells on others as well affects of quarry dewatering, quarry blasting, water sources, conduct groundwater contamination and clean-up studies, groundwater remediations, wastewater, general groundwater hydrology.

VS: Move this along, I’m going to show you a document, ask if you can identify that.

AP: it is my resume

VS: We offer Mr. Perry’s resume to the commission into the record…

Tepper: Any objection to Mr. Perry’s qualifications as an expert in hydrogeology?

VS: Mr. Perry do you offer sworn testimony in other proceedings?

AP: Yes I have

VS: Can you tell the commission briefly how long you’ve been involved at the OMYA plant site, over what period of time, and then I’d like to have you immediately go into your involvement with the tailings management area specifically.

AP: Sure, I’ve been involved at the OMYA site which we visited this morning over the course of the last two plus years. In fall of 2001 I was contacted by OMYA to work on this specific project. Tom Sawyer asked our firm to conduct an evaluation of the proposed tailings project. We were asked specifically to evaluate whether or not that project would conform one with the solid waste management exemption which has been discussed today. That involved a determination of whether this tailings project would involve the injection of toxic or hazardous substances into groundwater wells, whether it would create risks to public health or safety or cause a nuisance. It needed obviously to not do any of those things to qualify for that exemption so we investigated those possibilities. We also looked at the Act 250 criterion regarding pollution of groundwater. Again, in order to determine if that tailings project as proposed would comply with the Act 250 criteria, what we did in order to make that conclusion is we looked extensively at Omya’s existing tailings operations. At the tailings stockpile which we saw this morning and has been testified already it’s been there, in place and in operation for 20 plus years. This provides really an ideal hydrology laboratory to evaluate the proposed project. We’re looking at the same materials, same tailings, same process and the same geologic environment. In order to make our determination we took chemical tests of the tailings materials themselves, process water circulated around the Omya test, tested chemically groundwater upgradient from the current tailings area, beneath the current tailings area, downgradient from the current tailings area. We subjected these samples of tailings, groundwater, process water, to a whole battery of tests. We potentially looked at the Vermont Solid Waste management regulations. Again the rules we’re looking at say it does not inject toxic or hazardous substances into wells. We looked at the Vermont definition of hazardous substances, ran the whole screen of tests for what is defined in Vermont as a hazardous substance to see whether or not any hazardous substances were present. As far as the groundwater, the same series of tests on groundwater and process water, on the tailings, in order to determine groundwater flow direction which is important to the whole concept of wells, we surveyed a network of groundwater wells we have in addition to existing wells at the Omya site we installed 6 bedrock wells using a water well drill rig for monitoring purposes to collect samples from. We surveyed the wells using …station laser surveying equipment. In order to establish the exact location and elevation, the elevation of the wells, we measured the elevation of the water surface at various times of year, spring the water levels are high and last summer’s drought when they’re low, the fall and the winter. From that measurement, depth to groundwater below and known elevation of the well-head we were able to come up with a contoured map of the aquifer water surface. That’s able to show us the direction of groundwater flow. We’ve also looked extensively at geologic mapping, conducted fracture trace analysis which looks at aerial photographs in stereo in order to determine the location and orientation of the fractures in bedrock which dictate where the water can flow. Combine that with the groundwater level measurements and the contour map we’re able to assess where the groundwater is going, where it’s coming from. Looking at the quarries on the site, we tested sediment which collecting in them and which will continue to do so as part of the project, and installed what are known as piezometers within the sediment material and the quarries in order to determine the gradient. These devices are able to tell if water is flowing into or out of the quarries from groundwater, are able to determine the actual measure of the gradient which it’s flowing and in summary, that sort of wraps up everything we did, in an awful lot of words, bring that around to our conclusion so what we did find is that within the tailings themselves, within the groundwater we identified certain substances that are used in the flotation process but we found that the material in the tailings themselves did not contain any hazardous materials, it does not inject any toxic or hazardous substances into groundwater or to wells, poses no risk to public safety or to the environment. That is our conclusion.

VS: Mr. Perry, you am I correct in understanding that you are the author of this report, Tailings Characterization Report dated August 9, 2002

AP: Yes I am

VS: And am I correct that that summarizes in perhaps more detail than we’ve just been able to do in a few moments but the investigation conducted…

AP: That report goes into a lot more detail than I can remember sitting right here, as far as what we found and what we did.

VS: That report is in the application…There are a lot of different directions we could go. The critical one, there are several critical issues, number one, in your analysis of the groundwater hydrology were you able to draw a conclusion? Hold that for a second, come back to it…Have you conducted any analyses or evaluations of the Florence water system supply well?

AP: We certainly have. I mentioned the on-site wells that we drilled. We did also conduct sampling on several occasions, water quality analyses, for these chemicals of interest from the Omya site. Tested for those in the Florence water supply well, we also tested some private wells where we were able to obtain permission surrounding the site.

VS: In connection with the Florence water supply well, is that hyrdrologically connected or hydrologically disconnected from the tailings management area?

AP: That well is hydrologically isolated from the tailings management area. There are a number of reasons why. Primarily it’s, easy to understand without too much jargon. They’re in entirely different aquifers. That well that supplies the town is in a gravel aquifer. Up at the Omya site surrounding and beneath the tailings area is a bedrock aquifer. In that gravel aquifer which supplies the town well, that well has undergone extensive testing on its own, not by us, by another firm which developed it. I reviewed that report and also conferred with the state water supply division regarding that well. Based on that report it is clear that the water in that aquifer for that well is primarily recharged from the Otter Creek. During the pump testing on that well, measurement was conducted of where the groundwater coming to that well was coming from. It was not coming from the Omya site, not even from that direction, but from the direction of Otter Creek. The wellhead protection area which is required by the Vermont Water Supply rule for any public drinking water source has been delineated for that well as part of the testing…map of that…this is the Pittsford Florence well, it’s actually a pair of wells, main well and a back-up, side by side in the well house over here. Here’s the Dolomite Quarry where we stood today, this morning, is right here. The proposed tailings management area would be here as the crow flies, about 3000 feet to the well. To the closest point of the wellhead protection area from the closest point of the proposed tailings management area is about, roughly 2000 feet so we’re not even anywhere within the wellhead protection area. The wellhead protection area delineates all area which could potentially, potentially contribute water to these wells.

VS: Can you identify on the map where the wellhead protection is? Just trace it out with your finger?

AP: The wellhead protection area is shown on this map, which is called the Omya groundwater testing map, it’s shown in this yellow, yellow shading, encircled here. Our site again is over here quite some ways to the south and to the opposite side. This is a key point is that the tailings management area is on the opposite side of this hill crest. So water flowing landing on one side of the hillcrest which may flow towards the wells, that hillcrest divides any potential recharge to the wells from the site. Additional protection to these wells is afforded by the fact that this gravel aquifer is covered by about 15 feet of clay, which really inhibits any sort of downward migration of anything that lands in the immediate area. Again this agrees with the testing that show that the water is really coming from the creek, not from the ground surface immediately surrounding the well. So based on this geologic understanding of these two distinct aquifers we have concluded that there is no hydrologic or hydrogeologic connection between the proposed tailings management area and this public water source.

VS: You’ve indicated some of the private wells that you’ve examined, is there a hydrological connection between the tailings management area and the wells that you’ve examined?

AP: No. There is not a hydrologic connection between the proposed tailings management area and any of the private wells that we’re aware of. Again as I was mentioned earlier as I was describing what we did, we took a very close look at groundwater flow, where is the groundwater going? Groundwater is not at all hydrogeologically connected to any of these wells, this one here, this one here, there’s a private well here and here, they are flowing in an entirely different direction, would not enter the groundwater in these area and again they’re on the opposite sides of these divides. The hillcrest which act as groundwater divides and flow divides.

VS: You were here when Mr. Sawyer testified?

AP: Yes I was.

VS: And there have been a number of questions with regard to chemicals that OMYA utilizes in its production process?

AP: Yes, I have heard those question.

VS: My understanding from your report is that you did take a look at a variety of chemicals that have been found to be associated with the tailings. Is that correct?

AP: We did.

VS: Could you identify what those chemicals are and then discuss why the, explain to the commission why it should not be concerned with the fact that certain chemicals are contained in the tailings.

AP: We’ll go through the list real quick. Chemicals that we identified looking at the existing tailings stockpile included the OPP, that’s the biocide chemical that was discussed previously, they included the tall oil, that’s the flotation reagent which is used in the tailings production process in order to separate the ore from the impurities, there’s acetone which has also been discussed previously, there is stearic acid, that’s been brought up before, there’s isopropynol, that is isopropyl alcohol, which I don’t think has been discussed yet, I’ll get to that, the other one is I think we had mentioned before is the element barium which is naturally occurring. I’ve gone through the list, I’ll go back to the top and discuss each one briefly without getting into too much repetitiveness.
Again, the OPP, that was, it entered the tailings due to a spill accident a little over two years ago. As Tom Sawyer mentioned, a number of steps have been taken to reassure that that sort of an incident wouldn’t happen again, secondary containment around..monitors to detect leaks in advance and so forth. That had, at the time of the spill, had run into one of the quarries, which is why it eventually ended up in the tailings. Stearic acid was addressed before. It’s a food grade ingredient that’s generally recognized as safe by the Food and Drug Administration. Nonetheless it’s not going to be a part of the tailings in the future because future, dating back already to at least a year Omya no longer disposes of that sort of material in the tailings operation. We talked about Acetone. The acetone, unlike the ones I mentioned previously. Acetone we did find initially in the groundwater which is a surprise. It turned out after an investigation and in order to determine where it was coming from and how can we get rid of it, Omya has made a number of changes to their process in order to recover and recycle what’s called their dispersant water so the acetone does not enter the tailings operation as it did in the quantities before. So again that’s going to be reduced compared to what we’ve seen.

Unknown: I’m sorry, what was the source?

AP: It was an impurity in the dispersant substance which is used later on in the milling process after the flotation. It’s a separate process during the flotation so we were able to separate that and cover it an…tailings.

Unknown: You said it wasn’t going into the stream in the quantities that it did before, would you elaborate on that?

AP: At present, we don’t, it’s a fairly recent change, we don’t know how much of the acetone in that waste stream has been recovered, I think Tom would be the right person to ask for specifics but I believe that the majority is now being recovered and is not being released.

VS: Do you have and perhaps you I realize you’ve got a lot of statistics in your head but do you have any recollection or is there something you can look at that would remind you or refresh your recollection as to the quantity of acetone, volumes or levels of acetone that you might have found that you find in the tailings.

AP: I have a pretty good memory.

VS: Okay, go right ahead.

AP: Our initial sampling, a little over a year ago, we did find acetone, the lab method we were using at the time it was a tentative determination and the acetone level was, I believe was slightly higher than Vermont’s groundwater enforcement standard. We then came back to the site using a different laboratory method to be more precise. Vermont groundwater enforcement standard is about 700 parts per billion, or micrograms per liter. When we came back I think we found it somewhere in the ballpart of 4 or 500 parts per billion. At that point we started our forensic investigation to figure out where it was coming from so we could get it out of there. When all that was done we did go back and retest extensively because the groundwater enforcement standards in Vermont require you to do a certain statistic in order to actually make a determination of are you in compliance or not and statistics called the 5% impedence value, it’s the probability in 95% of the time it’s not going to be any more than that. It’s certainly a lot more conservative than an average or some other method. We took 10 more samples so we’d have an adequate sample size to run that statistic and we never found any acetone again. It had only been found in the beginning, it has now been corrected coming from the plant. So in terms of the official statistic, we’re well below the enforcement standard which means again groundwater at the site is in compliance with the groundwater enforcement standards and that’s the benchmark that the state uses to determine the answer to the question of does this qualify for the exemption by not injecting toxins into the groundwater. To wrap it up with the acetone, both the statistic shows we were within compliance and the fact that it hasn’t been there in the last ten samples from a common sense point of view shows that that is not any sort of environmental or health risk.

VS: I’m sorry, I interrupted you, you had gone OPP and Acetone and working your way down the list.

AP: Tall oil, there’s some question about tall oil. Tall oil is the word that we’ve used in our report to refer to the flotation agent. Tall oil is sort of a general term, substance that’s produced from pine trees, it comes out of the milling of pine pulp, it’s not one chemical or one substance, it can be refined into various things for various purposes. In this case Omya has a tall oil product. It’s called (inaudible). It is what is used in the flotation industry currently. It’s replaced a lot of what we previously used in the past for the very reason that it has no known environmental or health risks or impacts. It’s a safe, inert chemical and it binds extremely well to carbon, to solids, to fat soluble material. It’s not very water soluble so what happens is we found it in the tailings stockpile itself. In that well that we drilled beneath the tailings stockpile there was no tall oil. There is no tall oil in the wells downgradient from the site because even though a material may be permeable say to water it’s not permeable to the substances which really bind to the soil as the water flows through. It’s actually filtered out by the tailings themselves.
Moving on down that list we had, mentioned isopropynol or isopropyl alcohol. Trying to stay in order. Sorry.
The stearic acid. That was the one which mentioned won’t any longer be part of the tailings operation. Tom Sawyer testified that it’s added to their final product on certain types of final product. Where they had an off spec product in the past, they’d go and dispose of it in the old tailings stockpile, that’s why we found it in the tailings. Like the tall oil it has a very poor water solubility and has an excellent affinity for the carbonate material so it remains there, not got into the groundwater. I did also mention briefly that it is considered by the FDA as a safe food ingredient so sort of as an aside if it was in the groundwater it’s not going to be considered to pose any sort of a risk.

No, isopropynol. That is also part of the disperseant. Mentioned the acetone, which is the impurity in the dispersant and the isopropynol is the ingredient that we knew was in the dispersant. Again we’ve already discussed the acetone, that stream coming out of the dispersing milling process does get recycled now back into the plant in order to recover it. So it doesn’t get out into the environment. We never found that in the groundwater anyway. We found it would be present in the open water quarries where the process water is recirculated but it’s fairly volatile so it doesn’t persist, it never ended up penetrating into the groundwater that we can find. I think I had one more on my list.
The barium. Barium’s a metal, naturally-occurring in most of the groundwater wells where I’ve tested over the last 6 or 7 years for water quality, almost always find barium in Vermont. It naturally occurs in the same levels throughout the state as you found it here in the tailings because it’s endemic in the rock formation. There is a standard for barium, a health standard, and the background levels that we saw are far far below that standard, so once again we concluded that we’re not injecting barium any sort of a toxic or harmful substance into the groundwater. It’s already there, it’s in a safe level.

VS: Does that complete your list?

AP: There was one more. The last one was toluene. Toluene we found fairly low levels throughout some of the process water, quarries, throughout some of the groundwater wells, it was present in trace levels within the tailings themselves. After interviewing Omya staff about where that potentially could be coming from they didn’t know of any process that used it. There did used to be an asphalt plant at the site back in the 1970’s or 80’s. Toluene which is a petroleum product is certainly a part of asphalt, very likely would have been a part of that process. We suspect that toluene is a relic of past activities on the site, it entered the groundwater and once having entered, also having entered the quarries, the process water recirculates it, it’s been recirculated throughout the site and is now seen in trace levels around the property. There’s a groundwater enforcement standard and there’s also drinking water standard for toluene, that’s 1000 parts per billion. I think in groundwater we haven’t found any more than 15 or so parts per billion so we’re not even 1/50th of the drinking water standard and again keeping this in context we’re talking about the groundwater within the Omya site which as I spoke before to is not hydrogeologically connected to any of the drinking water supplies, so given these trace amounts of toluene as our testing has shown are not present in the town well or the private wells that we’ve tested. All groundwater on the Omya site is in compliance with the groundwater standards that are the benchmark for the determination we have to make here.

VS: So in connection with the specifically with the production of the tailings product, only one of these chemicals actually is used in that process, that is the tall oil?

AP: That is absolutely correct.

VS: The others are either there are a result of accident, natural occurrence, relics of the site or discontinued past practices. I had a question on the OPP. You indicated there was a spill of OPP. Am I correct in understanding that you were involved in a remediation effort on that?

AP: That’s right.

VS: Would you describe that to the commission?

AP: Certainly. When the OPP was spilled, that’s about November of 2000, two years ago, after it was spilled it had run into the on-site dogleg quarry, I can show that on the map, to understand the whole process. Here is the dogleg quarry, it’s one of the three abandoned quarries on site in addition to the dolomite and Pittsford Italian that we’ve been discussing. So it ran into here. In order to contain it so it wouldn’t spread any further, Omya stopped pumping or discharging any water from their dogleg quarry. Normally it’s used as part of the water recycling use. So it was kept in here. Although the OPP is used as a biocide, the amount of dilution that happened in the dogleg quarry, sort of the opposite thing happened, the OPP didn’t destroy the bacteria, the bacteria in the quarry destroyed the OPP, which began working on it. It was diluted down to the point where it was no longer harmful or toxic to them. Within about a months’ time the OPP levels in the quarry had dropped to the point where they were no longer detectable. One consequence of keeping it in the dogleg quarry that we didn’t realize until a little bit later on, we had to, allow the water level in the quarry to rise as nothing was being allowed out. Normally this quarry, like the other ones on the site, is lined with a layer of tailings. Thick impermeable tailings cover the bottom and the sidewalls of the quarry. We conducted some permeability testing on those tailings. They’re a little different than the ones in the dolomite quarry, they’re a little finer, their permeability was about the lower end of the range, textbooks for silt, the permeability to water, as far as the OPP they weren’t permeable to it at all, unlike the other substances that are soluble in water, really adhere through the tailings, but the water level rose, the water level did rise to the point where it was above that lining of tailings covering the side walls. A discreet slug if you will of the dolomite, dogleg quarry did evidently enter the rock fracture in the side because sometime later we detected it in well #2 which is at the site visit, there was a question to me about this well and what was detected in it. So that was where looking downgradient from that quarry and the water had temporarily and only briefly the opportunity to enter an aquifer fracture. We found it here in this well so our remediation project consisted of pumping it out of the well. Earlier I said that it broke down very quickly in the quarry from the bacteria. Within a month it was gone. We found it several months later in this well and the reason is those bacteria need oxygen in order to do that, that natural breakdown process, there’s not enough oxygen in the groundwater for that to happen. That’s why it tends to travel and in the course of about 8 months it got from here to here. We pumped it out, returned it to the dolomite quarry under a program that was approved by the state of Vermont hazardous materials management division wehre the bacteria again were allowed to break it down, this time keeping the quarry water levels low enough that it did not seep out again. We’ve conducted a number of repeat samples of groundwater, this well, at the town well as well as throughout the site and we’ve confirmed that the OPP is entirely cleaned up at this point. There’s none left.

VS: And has the state, if you will, signed off on that remediation effort?

AP: Yes, the state hydrogeologist who reviewed the project has concurred, the state is not requiring any further action and they have stated also that the town water supply is not at any risk from that spill. They are not requiring any further testing of it…

VS: Are you familiar with Omya’s NPDES permit?

AP: Yes, I am.

VS: And so you know that Omya uses other chemicals in its process?

AP: Yes.

VS: Others than you’ve identified.

AP: Other than the ones that I’ve mentioned that are involved in the tailings process, there are others that are used elsewhere at Omya.

VS: Knowing that those chemicals are used in the production process, and I believe you were here when Mr. Sawyer was explaining how different segments of the production process work together, and knowing that you have found certain chemicals associated with the tailings product, based upon your education and experience and particularly your familiarity with the site, do you have an opinion as to whether the development of the tailings management area as proposed will result in undue water pollution?

AP: I do have an opinion on that matter?

VS: And what is that opinion?

AP: It’s my professional opinion that the proposed tailings management area will not have any undue effect on groundwater quality.

VS: And in this context, unlike Mr. Nelson who was talking about turbidity and solids, you’re talking about the chemistry, is that correct?

AP: That is correct.

VS: And also based upon the same background, education, experience, do you have an opinion with regard to whether the project will involve the injection of wastes or toxic substances into the groundwaters?

AP: I do have an opinion on that matter.

VS: And what is that opinion?

AP: It is my professional opinion that the project will not involve an injection of wastes or harmful or toxic substances into the water, the groundwater.

VS: Is there anything more than what you’ve briefly described and what’s in your report that forms the foundation for that opinion…?

AP: I could go for a long time I prefer to keep it brief. I will keep it very brief, it’s getting late. In addition to some of the testing that’s included in our report, we’ve done some more recent water sampling, some of the neighboring private wells, some additional wells that were drilled on site, we tested after the report went out and found no contaminants of any sort whatsoever. Reviewing some of the substances used at Omya that are not part of the tailings operation, we made the determination as Tom has explained earlier that they would not be associated with this process and would not be coming into contact with the groundwater or with the system that we’re discussing. Try to keep it at that unless you have anything.

VS: I think that will deal with that. Although Act 250 specifically criteria 2 and 3 look at water quality, quantity issues in terms of whether a project will have a burden on an existing water supply, simply because of the question, questions that have been raised with regard to water quality and concerns with regard to particularly the Florence water system, do you have an opinion whether the tailings management area will have, place an unreasonable burden on existing water supplies, having in mind the quality issue.

AP: In terms of either quality or quantity, the project won’t place any sort of burden on any existing water supply.

VS: Not only the Florence water system, you’re saying any existing water system.

AP: I’m considering the Florence water system or the private wells that we’re aware of as well, that we’ve got a basis for that decision already as far as the water quality on the site being in compliance with all standards, the fact that that water in compliance though it may be is not even hydrologically connected to any of these other water supply wells regardless, from our testing and geologic analysis, there is certainly no reason why we could see a quantity effect. We’re not lowering any water levels, not pumping any water that might deplete the aquifer. That’s not even part of this project. There’s no blasting that would change flow patterns either.

VS: With regard again having consideration to the chemistry and the issue of water quality, do you have an opinion with regard to whether the project will result in a nuisance?

AP: I do have an opinion on that, too.

VS: And what is that?

AP: my professional opinion is that this project would not cause any sort of a nuisance.

VS: And can you explain or elaborate on that briefly.

AP: I would assume, at least in the context of my testimony, a nuisance may be considered some sort of aesthetic affect on somebody’s water, not a health risk, but nonetheless undesirable, a change in color or odor for reasons we’ve been over. Already again it’s not hydrologically connected to any known water sources, anything in those wells that may have some sort of color or odor and I can’t think of that, certainly not in any way going to impact any other well.

VS: Thank you.

AP: You’re welcome.

VS: We have no further questions for Mr. Perry

Unknown: I have a question Mr. Chairman. Seeing that I’ve missed out on my free meal this evening I’m here to 8 o’clock so I have a question I’d like to ask.

A Commissioner: On a serious note, I’m holding here a letter from Bev Peterson. And one of the things it says in here, "at least one of the chemicals Omya indicates is contained in the waste is tolene? Toluene is carcinogenic." How risky is that as far as the project is concerned pertaining to the wells and run-off and whathaveyou.

AP: First-off I think Miss Peterson may be mixing some different names of chemicals. Toluene is actually not classified as a carcinogen, first-off. It is regulated in drinking water because it can have toxic effects which are different than carcinogen where you’re talking about whether it may cancer, which it’s not. It can have toxic effects which means that, you’re talking about something toxic there’s a minimum dose of that substance which is necessary to cause some sort of health effect and it causes, say, not cancer but sort of a poisoning type of, it can effect the nervous system. So the EPA has set a safe drinking water standard for that substance, toluene, 1000 parts per billion and what we have found is that the highest levels we found of it in groundwater is 15, not even 15 parts per billion. So we’re less than 1/50th of what is considered the safe amount of that substance for drinking water. And that, again, that, when we’re only 1/50th of that standard, that’s in the middle of the Omya site. What’s going off the property is even less and none of that is going to be impacting any wells, any water supply wells. So to answer your question, no, there isn’t any health risk associated with that toluene that we found on the site.

Commissioner: No carcinogens in it?

AP: Toluene is not a carcinogen, it’s a pure, toluene, there are no carcinogens in it, it’s a substance, a compound. There isn’t really anything in it, it’s toluene, it’s a molecule.

VS: Mr. Perry, the letter that Mr. DeGangi references is a letter dated December 13, 2002 from Ms. Peterson to Mr. Burke. Have you seen this letter before?

AP: Yes, I have seen this letter.

VS: And I’m referring to the second page of that letter, and I’m reading from this, "toluene is a carcinogen which indicates that there is the possibility of real risk involved in this proposal. I have included following that, see attached letter by Sylvia Knight to ANR," is that correct?

AP: That is what it says.

VS: And attached to Ms. Peterson’s letter is a, another letter from Sylvia Knight dated December, from Sylvia Knight dated December 12, have you seen that letter before?

AP: Yes, I have read it.

VS: And am I correct that on the second page of that letter she discusses toluene?

AP: She discusses three other substances that have the word toluene in their names but those are not toluene. She does mention toluene also in that paragraph.

VS: I call your attention to the fourth line, fifth line of the second page of the Knight letter when she said "however, EPA" would you read that sentence plase?

AP: "However, EPA has not yet agreed that toluene is a carcinogen."

VS: So am I correct then in understanding that the person or the document on which Ms. Peterson relied to say that toluene is a carcinogen in fact says that toluene is not a carcinogen?

AP: Right, …is that it’s not considered (coughing).

VS: Thank you.

AP: You’re welcome

Commissioner: Question for, Mr. DeMarco I think indicated that a stream near the railroad trestle, I think he same something like clouded, do you have any information that you’d like to share with the commission on that?

AP: I’m assuming, I think when he asked that question, it was confirmed that that was relating to the swale as part of the en….end of Tape

AP: I can’t really speak directly to that comment. I’ve seen the swale myself. On no occasion that I’ve seen it has it had turbid water in it but I don’t know when he saw it or under what circumstances but certainly the way that the permit is intended to operate, within compliance, there’s a certain set turbidity level which is not necessarily in [inaudible] but I guess having not seen or knowing the details of the complaint I can’t really answer to it.

Commissioner: Today I don’t know whether it was you or others mentioned monitoring wells. Are there groundwater monitoring wells at the plant?

AP: There are several, let me show you where they are.

Commissioner: Well my question is, my question is this, is there a schedule for sampling and who’s doing the, who’s doing the studies and how are they reported?

AP: Currently there’s not an ongoing schedule. Following that OPP spill, we had a schedule, we installed a number of the wells then, we installed a number of them further on, later on as we were working for Omya. We did most of our testing for the OPP project, that’s over with, the state has closed the books on that one….all the information we needed for this application so on a going forward basis there is currently no schedule.

Commissioner: Maybe it might be a good idea if you pointed out where they are.

AP: Sure. There are several of them. One over here is on the southeast side of the dolomite quarry, from our measurements we know that’s upgradient from the quarry, groundwater’s flowing this way, there’s one here which is the one we spoke about earlier in some detail that’s between the dolomite and dogleg quarries, there’s one up here, this one is the one that is located right in the middle, drilled right through the existing tailings area, this one here that’s in the middle of the site as we drove away from the dolomite quarry, we crossed the rail tracks, came up where the truck trailers were, drove down, passed a few buildings on the right, there’s a well right there. Waiting for the train to pass, we were about here, another well over here, in the direction of this low point of the ridge. Uphill from the plant, over here, they’re all bedrock wells by the way, every one I’ve shown so far is a drilled bedrock well. We have over here near the east plant, we have another one over here near the east plant, we have another one over here which is down by that swale and another one at the edge of the Omya property, also by that swale. Total of ten bedrock wells, yeah that’s right there’s ten.

Unknown: How many?

AP: Ten

Commissioner: And they’re pretty well spread out over the plant facility?

AP: Yes, their locations again, upgradient, within, downgradient, much further downgradient, I think this one here, I’m sorry I forgot your name, the last, right by the trestle, this one is right by the trestle, the trestle would be right here, closest one in that direction, the answer to his question…

Bill Niles: I have a question.

Tepper: Mr. Niles is it? Go ahead.

BN: You’ve got wells over to the east plant there.

AP: Yep

BN: If those wells are drilled right where White Pigment used to throw their dump, Ethemene, Duomac, what have you.

AP: That’s right.

BN: You don’t get nothing out of them wells?

AP: In the bedrock wells we found absolutely no contamination.

BN: Do you know where they used to park the trucks, all that area, that all used to be a dump right there.

AP: Yes, I’m familiar with it. We uh

BN: You don’t get nothing out of that well?

AP: At the request of the state we did study that area that you’re referring to from the White Pigment plant, we put those wells downgradient in the direction of water flow from that site and we tested them.

BN: All our waste used to out to there too, years ago.

AP Yep, as far as

BN: We used Duomac and Ethemene.

AP: We tested for all of the possible chemicals that had been used in the past, I mention that now Omya uses Tall Oil because it’s a fairly safe flotation agent, we know some of the ones used in the past. We tested for those and for the things they can possibly turn into also and we did not find anything in those bedrock wells as we did in the area itself where the material went. This is another example of the whole concept we’re talking about here, the actual material, where White Pigment put it, we tested it and there are some chemicals still there but in the 40 years since the 1960’s they’ve remained adhered to that material and nothing’s gone into the bedrock, into the aquifer.

BN: I started there in ’68 and we were still using it back then. I worked for White Pigment for 30 years.

VS: Mr. Niles, were you involved in the dumping of the materials out there?

BN: When I first started there, I was a packer, then I went to grinding stone in the mills, then I went to flotation, I ended up at the lab.

VS: So in the course of your work in the floatation section I guess of the plant, is that where some of these materials came from that were..

BN: Duomac and Ethemene, yes, sometimes alcohol, sometimes kerosene

VS: And that’s what was dumped..

BN: They used it, they used alcohol, bubbles get too deep then they run along and spray it with kerosene to cut the bubbles down.

VS: And that was what was you say was dumped out in that waste area?

BN: It was piped years ago right through there and it used to go out those closed ditches, water right out there, everything was dumped in that hole.

VS: Thank you.

Tepper: Mr. Freedman?

CF: Mr. Perry, are you familiar with the Vermont Department of Health Drinking water guidance regs?

AP: Yes I am.

CF: Okay, can you turn to page 7?

VS: Do you have an extra copy of that?

CF: That’s the only copy I have, we can all share, what do you see highlighted there?

AP: You have highlighted toluene and its maximum contaminant level of 1000 parts per billion, which I stated earlier.

CF: Which is the same as one part per million, correct?

AP: That is correct.

CF: Is toluene, therefore, it can be hazardous in sufficient concentrations, right?

AP: That is correct, in sufficient concentrations it can be toxic.

CF: Okay. In this area of the map here, and my recollection, we were standing right here this morning.

AP: That’s correct.

CF: What is the difference in elevation between the area we were standing, this point right here, we have that on the map here?

Unknown: We shouldn’t use the USGS topo…detail.

AP: We have the site survey.

CF: Maybe that one might have it.

AP: We were here…We’re just going to look at the elevations, not the scale, we see the ridgeline about 550, 552, 570, down here where we were standing it shows 518 so we have a 30 to 50 foot elevation difference in topography.

CF: And how deep is the dolomite quarry?

AP: I don’t exactly know.

CF: Previous testimony was 70 to 80 feet, a couple of you agree with that? That was the previous..

AP: I won’t dispute that.

CF: What type of wells are the Sandillo well and LaFlamme well, are those bedrock wells, artesian wells, what type of wells are they?

AP: I do not know what type of well the Sandillo well is.

CF: How about the LaFlamme well?

AP: I believe that’s a bedrock well because the state of Vermont does have it on file, a well drilled for the name of LaFlamme in Pittsford, it is a bedrock well, assuming that’s the correct match.

CF: Do we know how deep it is?

AP: I do not know that.

CF: The Florence wells here, you said those are gravel wells?

AP: That is correct.

CF: How deep are they?

AP: I do not know that.

CF: There’s no data on that? Is there anything in your report on that?

AP: I could look it up.

CF: If you could.

Bill Burke: While we’re waiting, Mr. Freedman, do we have your CV or resume?

CF: I have it.

BB: Did you happen to make any extra copies?

CF: Yes I did.

BB: If you could give me 5 I’d appreciate it.

CF: I don’t have quite that many but I do have multiple copies. I think I made 4 copies. Do we have any parameters on the depths of these wells?

AP: The Pittsford-Florence water system well is 110 feet deep.

CF: And what level is the bedrock at that area?

AP: That’s a gravel well.

CF: So it doesn’t hit the bedrock at all?

AP: It’s a gravel well. Drilled into gravel.

CF: Is the, it doesn’t come into contact with the bedrock at all, it’s just in the..

AP: Gravel well.

CF: And you said the LaFlamme well was a bedrock well?

AP: I believe so, I can’t be certain, I have not seen the well myself, I told you there is a well, the state of Vermont keeps records, when a well is drilled, well driller is required to submit a report to the state, it’s kept on file, if the well doesn’t change hands you can usually look it up by name, if it does it’s a little trickier, there’s not a good mapping program associated with it so it’s often a fair amount of guess work. I believe it’s a bedrock well, can’t attest to that with certainty.

CF: It was your earlier comment that this ridge is about 30 to 50 feet higher than the grade level at the dolomite quarry and it’s also been the consensus that the depth of the dolomite quarry is 70 to 80 feet, so the bottom of the dolomite quarry is well below this ridge level?

AP: it certainly is.

CF: And if we reference this drawing of the water cycle, is it generally true that groundwater flows towards rivers?

AP: That’s a very general statement. I would not apply it to the case of Omya and I can tell you from the groundwater flow direction measurements that we’ve conducted that the groundwater does not flow directly from the site to the Otter Creek?

CF: Which direction does the groundwater flow at the Omya site? Point to it on here if you wish.

AP: I’ll point to a different map. This is a map of the groundwater flow direction and this is a map that is in the appendix of our report.

VS: Can I just interrupt briefly. Mr. Nelson has another commitment, do we need Mr. Nelson for anything further?

Tepper: He’s your witness, I don’t know.

VS: I may want or I may need depending on what happens, to recall him for rebuttal but at this stage I have nothing further to present through Mr. Nelson. I didn’t want to excuse him and presume that the commission didn’t have any need for him this evening.

Tepper: I don’t know that we have questions for him. If we really felt we needed him we might handle it in a recess order of some sort.

AP: Shall we proceed? Okay. This is not anything new. This map was a part of our application package. I’ve just blown it up, put it in color, so we can point to it an talk about it. Different colors that you see on the map, these represent the different geologic formations, Bascom formation, Shelburne formation, Clarendon Springs, Danby, Winooski, different types of dolomite limestone. You can see from the orientation of these different rock units the contact between the rocks run in a general north, northwest, clearly a north direction. We talked about the fractures in the rock being what determine in large part which way the water can go. There’s an opening. Most of the fracturing in this type of bedrock terrain develops along these contact plains. We also conducted our fracture trace analysis using aerial photos looking at individual expression, surface expressions and fractures, or other features and again there’s a general northwest trend. And then finally, and this is the real substance of it, I’ve taken all of our groundwater water level measurements as well as the water surface elevations in each of these bedrock quarries from the survey and we contoured that to come up with this contour map showing which way the groundwater is flowing. You can see that here’s the dolomite quarry where it’s flowing sort of upstream, upgradient end of the plant and sort of collecting generally where all those tractor truck trailers are, sort of groundwater trough flows to the north, goes past our downgradient-most monitoring well here, and that was something we have confirmed, this map here is from July 2001, it was during a drought last summer. We tested this in spring, after snow melt, we tested it this fall, about a month and a half ago, we tested it in the winter and this was a consistent pattern. That’s the flow direction. That’s very well established.

CF: You’re saying that it flows from South to North?

AP: North, northwest, could be.

CF: It’s flowing right up in this direction?

AP: That is the flow direction as shown on that map.

CF: And this water cannot pass through cracks or fissures in other rock formations next to it, is that what you’re saying?

AP: No I did not say that.

CF: Okay

AP: What I’m saying is.

CF: I thought you said that these formations were barriers to prevent water from migrating.

AP: No I did not say that, what I said is the cracks and fissures that develop, they don’t develop just from some random process, they’re developed along the faulting, along the contacts that are formed as these rock masses collided and folded upon the mountains being built, and so the dominant orientation of those fractures is that north, northwest, south, southeast. They run that way and so the water follows the gradient and follows the fractures in that direction.

CF: But water from one type of aquifer can flow into another type of aquifer, correct? Water that’s in one type of rock formation can flow into another rock formation, isn’t that true?

AP: In a general sense, that’s certainly true.

CF: So then if there are contaminants in this area, why could they not then flow to rock formations, albeit different, adjacent to it?

AP: Because that’s not the way that the groundwater is flowing.

CF: If you look at this diagram here and you see how the water flows are diagramed here, which part of this diagram would you agree with, which would you disagree with? This diagram clearly shows water flowing, upper levels down into bedrock levels and flowing downgradient towards valley areas.

AP: That’s a good point. Groundwater flows downgradient. The flow direction is determined by gradient. The gradient that’s established at that site dictates that groundwater will flow in that north, northwest direction and not in the east direction that you’re suggesting.

CF: If you have the gradient of the lower level, that’s really what determines it though, right?

AP: Gradient of the lower level? Now we’ve drilled those wells down to.

CF: How deep are these monitoring wells?

AP: Varying depths. I believe the deepest ones are about 600 feet. The lesser deep ones are closer to 200 feet deep. But in any case when you’re dealing with a bedrock well, when you measure the water surface elevation in that well, what you’re measuring, that is a bedrock aquifer, as a confined water bearing unit, you’re measuring the potentiometric energy surface of all the water that that bore all intersects. So the water in that well bore rises through the level that represents the gradient at that point. Where you’ve drilled that hole through all the different layers that it may intersect so referring to different gradients at different depths, these wells they captured the head of all the different layers that they penetrate right down to 600 feet, the deepest ones.

CF: Do you ever get involved with the hydrofracture of artesian wells?

AP: We did not do any hydrofracturing on this site.

CF: Not here, just generally.

AP: Yes.

CF: Have you ever had any experience where when you hydrofracture one well, nearby wells are affected?

AP: I can’t think of any personally where we hydrofract one well and it altered a different one although that’s not unheardof, I haven’t experienced it firsthand.

CF: Because the wells are hydrogeologically connected and when you have a change in pressure gradient it defects, the one, essentially it’s like sharing the same tube or vein and you apply pressure to one and it affects the other. If the pollution is moving down this direction, why could it not affect the Florence water supply, why would it be impossible to affect the Florence water supply?

VS: Objection. First of all there’s not a definition or a foundation for the question and specifically the part of it that says pollution is moving in this direction. If he wants to talk about groundwater flows, we can talk about groundwater flows.

Tepper: We recognize the unsupported suggestion of pollution. Sustain the objection.

CF: It was Mr. Sawyer’s testimony that if you drink the leachate from the tailings, would it make you sick, what’s your opinion if you actually drank a sample of the water from the leachate of the tailings?

AP: I have not tested that hypothesis.

CF: Mr. Sawyer said there was bacteria and other substances.

AP: Right, we know, I talked about the OPP substance breaking down because the bacteria, the aerobic bacteria in the quarries had digested it. We do know from our sampling that there is a general class aerobic bacteria that dwell in most quarries. Are they pathogenic or not? We haven’t specifically tested that. But just like any lake, any pond, safe drinking water act requires you to filter and to chlorinate any water from any pond before it’s used as a drinking water source because bacteria live in any open water source, so it’s no different than a pristine water.

CF: Are these quarries, are the bottom and sides, are they hermetically sealed or are they porous because of the fractures and fissures in the bedrock?

AP: A hermetic seal they do not have. What they do have is a lining of tailings material which is precipitated onto the bottom and sidewalls of those quarries. It is a granular material so by strict definition it is porous, pores are

CF: It is porous.

AP: the size of microns, although they have a very low permeability.

CF: It was also shown today, and there was perhaps some disagreement on the difference in the magnitude of the numbers but there was a difference in head, if you go say between the ground level and your comments were 20, 30 feet below, and the surface level of the water in the dolomite quarry, so it would be your opinion that if the bottom is porous that the difference in head or pressure would allow water to push through the bottom of the dolomite quarry?

AP: Water could flow through, at a limited rate.

CF: Is it your opinion, if these quarries were sealed or grouted, would the amount of water penetration be more, less or the same?

AP: I don’t know how anyone would ever do that, but just theoretically, hypothetically speaking, if you were to grout all the fractures and sidewalls of those quarries, the flow rate of the water would very much have to stop, almost.

CF: If the new pile was lined in the bottom and sides so nothing could pass through the bottom, as the plan is this dolomite quarry is going to be filled in and then the new pile could be bigger and fill it in and so if the dolomite quarry is 80 feet deep and we’re piling up 80 feet above grade from the top to the bottom, 160 feet, would you agree?

AP: 160 feet of tailings material

CF: From the top to the bottom

AP: That’s the thickness of

CF: 80 + 80

AP: Yes

CF: If the pile was on a membrane and the membrane collected the leachate and it went into a collection area so whatever pollution, whether from the intended process or from accidental problems, from human error, we heard about that today, there were spills that have been reported, many of them have been accidental in nature, so if there was a permeable membrane underneath the pile, at or above grade level, then any leachate would then be collected and it would be impossible for it to go into the groundwater, or much much less likely to go into the groundwater?

AP: A membrane would certainly prevent any of that water from getting into the ground there.

CF: Thank you.

AP: You’re welcome.

Tepper: Redirect or other cross-examination first?

VS: I have redirect but I would prefer to hear the cross-examination first.

Tepper: If there is any, other cross-examination, yes, Miss Peterson?

BP: Some people live on Humphrey Road, there are some neighbors who live on Humphrey Road which is.

Unknown: Are they members of your group?

BP: Not yet, no they expressed interest but because of the time limitation.

Unknown: I’m sorry but the rules require that you confine your remarks to the individuals who have so far been granted party status.

BP: Maybe I can ask it as a theoretical question. There’s a spring over here.

Unknown: Looking for Fox Rock spring?

BP: I’m looking for …there’s a spring over here that people get water from the spring here so I’m wondering what the possibilities are that that water could get into that spring.

AP: I don’t think there is any risk because at the location of the proposed tailings management area the water is flowing in the actual opposite direction from where that spring is. On your map, groundwater flow direction, this project, spring 180 degrees in any direction..

BP: We don’t know the elevation from the tailings project to the spring.

AP: It looks like the spring is off the area off the sheet.

CF: You mention that the groundwater flows in a northerly direction. Does it stop at the property line or does it keep on going?

AP: As in any groundwater system, groundwater doesn’t go away,

CF: Doesn’t it move continuously?

AP: There is ultimately a groundwater discharge location. Looking at our maps here, I’ll put this one back, we have here, for not there is quite an extensive lowlands wetlands system surrounding this unnamed tributary brook to Smith Pond, it’s our hypothesis that this is the ultimate groundwater, regional groundwater discharge system.

CF: It just stops there?

AP: It does not stop. This is where the groundwater ultimately discharges into the surface water system so it percolates upwards forming extensive wet areas surrounding that tributary.

VS: Do you know who owns the property on the other side of the road there?

AP: I believe that’s the Hogback Quarry property with Omya, is that correct?

Unknown: That pond that is just to the left of the word Florence in pale blue.

AP: You’re talking about this one here.

Unknown: Yes, does that have any connection with any?

AP: This groundwater flow.

Unknown (sounds like Bob DeMarco): That pond sits directly above my house.

AP: This pond is part of that NPDES discharge system. This is one of the settling ponds that is upstream from the Omya discharge location so it’s, it is part of what we’ve been talking about today, ultimately the water from that pond goes through this swale which I think you talked about earlier.

BD: So does this northerly flow of water that you’re talking about, the…all go to that pond?

AP: It does not flow, we do have a well here, we have a well here, this pond is pretty well straddled, at this location, it’s heading more to the left, look at the map, the west of this pond, it’s not going into it, the center of flow is more around this area, on this pond, mainly collects the run-off, surface water from the area. To my knowledge there’s no groundwater that collects in it.

CF: Does the water then flow downgradient towards the river at some point?

AP: From the pond?

CF: No, no, the groundwater. At the boundary line it’s going to keep going downgradient towards.

AP: Towards the ultimate discharge point, which is here, at which point it becomes surface water that flows, ultimately meets the Otter Creek at a location.

CF: So it’s a river.

AP: Ultimately the surface water tributary does enter the Otter Creek at a location that’s just downstream from that wellhead protection area that we talked about earlier.

CF: In close proximity to the Florence wells.

AP: Beyond the wellhead protection area, outside it and downstream from it.

CF: So it’s going to take a circular route.

AP: It’s sort of a meandering channel.

CF: Just with your finger, if you were to draw the water, the path of the water, from the quarry areas to show how you think it goes, here.

AP: That’s groundwater, this is what we believe is the regional groundwater discharge location, at this point it will proceed like that.

CF: If there was pollution leaving the quarries, it would not confine itself to the boundaries of Omya.

AP: It would…what if, the properties of the substances are such that they dissolve poorly in water and tend to adhere, predominantly to the rock matrix and the tailings since all of them are settled here, they would not flow as does the water. It’s what, in (inaudible) contaminant hydrogeology it’s called retardation. Movement of the contaminants retarded by its interactions.

CF: Take a long time.

AP: With flowing through, the degree of that property, it’s a chemical property, or physical property of each different substance. Some things have such a poor solubility for water and such a high affinity for carbon bearing materials that they’re immobile and the ones we’re talking about today like the Tall Oil, they’re virtually immobile, they would not be able to seep through the muckish peat underlying this area even if were ever to move beyond the quarry. That’s all hypothetical.

BN: I have a question. Your water from the dolomite quarry goes into the Italian quarry, there’s cracks and crevices in that that goes to the east, that’s toward the town water supply. Do you mean to say that there’s none of that water seeping out through there?

AP: Our testing has shown that the water is not flowing to the east…

BN: because if you’re..well north of that, you ain’t any on that ridge along, back of these people’s houses.

AP: Here’s Pittsford-Italian Quarry, got a well right next to it here, a well right on the other side of it here.

BN: But you got, where that quarry is, where the Italian Quarry, this is the Italian Quarry, right, this is the west, that way’s the west, you’ve got cracks and crevices all through that marble through there. You mean to say there ain’t no water seeping through that? Because you guys ain’t got no wells drilled along here.

AP: We have this one here.

BN: Yeah, north of it.

AP: But the water is flowing in this direction.

BN: Water can’t always go that direction, all I, brought up to school, water ran downhill, it didn’t run uphill.

AP: This is down.

BN: You go out there by that quarry, you see, can you walk over that bank and you tell me that you’re going up.

AP: As far as the slope of the actual water surface itself, down is this way.

BN: You go out there and look at it, you walk right up there, probably 50 feet and you’re going downhill.

VS: Mr. Chairman, can we move on?

Tepper: We want to give this gentleman an opportunity to talk. Yes, Miss Peterson.

BP: I guess I will ask you, I think that the Omya uses bottled water. So I’m wondering why. I think that the Omya plant does not drink the Florence water.

AP: I’m going to have to defer to Omya personnel to answer that.

TS: Ties between the interior plumbing of the plant and the town water, the ties between the plumbing and the plant, what happens is the town water is a-okay at the pump house but inside the plant there may be ties, therefore it’s cheaper for us to buy bottled water than it is to go through and undo all those ties, that’s why we buy bottled water.

VS: When you say ties, in other words, your potable water system is or may be connected to the process water system.

TS: Correct.

VS: So in order to avoid concerns with regard to drinking process water, you provide bottled water, is that correct?

TS: That is correct.

Unknown: Possibility for going in the opposite direction?

CF: inaudible

TS: There a, it’s broken into tanks so the water comes in, so there’s no way for it to back.

Unknown: There’s an air gap.

TS: There’s an air gap, water can’t flow.

Tepper: Okay, nothing else

VS: I have a very few questions on redirect if I may. You were asked a number of questions when, you don’t have to go up there again but when you were looking at the geologic map and explaining the flow of the water and you were asked by Mr. Freedman, why couldn’t the contaminants flow from one of the water bearing areas to another one, do you recall that?

AP: Right.

VS: Now I believe what he was asking you or what his question was aimed at was, have the water move from the area where the plant is and more particularly the dolomite quarry toward the Florence water system to the east. Now assuming that is the basis for the question, does water flow downgradient or does water flow crossgradient?

AP: water flows downgradient.

VS: And the hypothetical, the questions Mr. Freedman was asking you was basically aimed at asking whether the water could flow across the gradient.

AP: Right, given our measured gradient, he was essentially asking if it would flow sideways across gradient.

VS: Now, with regard to a number of questions on head differences and pressure differences and so on you said that water could flow from the bottom of the quarry, the dolomite quarry?

AP: I did say that water could.

VS: And you were very clear saying that water could, I sense from that you’re saying that something else could not and I’m wondering what else is perhaps contained in your thoughts.

AP: Right, I certainly would, what I was hinting at was that although water could flow through at a rather slow rate that the tall oil flotation reagent that will be a part of this process would not be able to permeate that material although the water itself could because the properties for absorbing onto the carbonate..

VS: Mr. Freedman also asked you if you could put the tailings product on a membrane and collected the water and put that back in the process, if that would, at first he said guarantee or make it impossible, and he said nothing is impossible, so reduce the prospect of that water entering ground surface, you said yes, that could be done, that could result.

AP: Could it be done, I don’t know.

VS: Well I mean you said it could, a membrane could reduce the flow of water.

AP: Right, if there’s some way to construct one it certainly would reduce the flow of water.

VS: Now let me ask you, in your professional opinion, is it necessary to consider putting a membrane there and putting the material on top of the membrane?

AP: No it’s not.

VS: And why not?

AP: That’s because without the membrane there is absolutely no reason to believe that any of the substances concerned would be able to permeate down through the quarry and out that membrane.

VS: I have no further questions.

Tepper: Mr. Freedman

CF: Are you familiar with landfills having membranes underneath them and leachate from those landfills being collected and processed?

AP: Right, that’s a standard requirement for sanitary landfills.

CF: So if you have substances which could be hazardous to the groundwater so if you contain them with a membrane.

AP: That’s how it’s done.

VS: Is this material akin at all to municipal solid waste?

AP: The Omya tailings, not, no, certainly not.

Unknown: Have they been approved for consumption by the FDA?

AP: The Omya product? The tailings? The tailings themselves, I don’t think Omya’s ever sought approval to the tailings.

CF: If you lose this exemption, won’t you somehow have to contain the pile?

AP: It’s not my exemption, but if Omya did not have the exemption then as the gentleman testified earlier today, who knows. It’s up to the Agency.

CF: the agency says these materials should not be exempt.

AP: that was his opinion.

CF: He said he felt that there were, there were hazardous substances in there that could cause problems to the groundwater, so he did not give a specific recommendation what to do.

AP: No he did not.

VS: Objection Mr. Chairman. First of all we’re rehashing the testimony, the testimony speaks for itself, what was asked of Mr. Brabant was whether the design, how, if this was put through the certification process how the design would change, he said I don’t know. In other words it might not change at all.

Tepper: All right we’ll sustain the objection.

Ms. Peterson: These are some of the other chemicals being used by Omya. In looking through them there are some that are toxic to fish and so because some of this water flows into the Otter Creek I think that that.

Tepper: Do you want to direct a question to this witness?

BP: Okay, some of these chemicals, you heard what I said.

AP: I did. Those substances, two issues here, two answers to assure you that I don’t see any sort of a problem. One is that those aren’t a part of this tailings operation. They don’t get released into this proposed tailings area. Two, as Mr. Sawyer did testify earlier, the discharge permit which is where that list of chemicals came from I believe, where you got it, it does mention that Whole Effluent Toxicity Test. That’s a really, really important test to understand, just what it, I think we saw in some of the written evidence that had been submitted by Sylvia Knight earlier, some arguments that we often look at hazardous substances one at a time or something like that and don’t consider what happens when..winds up together. That’s what this Whole Effluent Toxicity test is all about. You’re not testing for any one targeted substance or another. You’re doing a real world test. What is the harmful effect, if any, of this liquid so you subject the test animals, the fish, the water fleas to that liquid and Tom said that 100% of them lived so in a sense there’s your answer to all of the myriad uncertainties of what could be in there and what could it be doing once they’re in combination, sort of by-passing the whole scratching your head thinking about it and if you see a real world answer that … is 100% non-toxic to the fish, that’s not the tailings, that’s not necessarily the project, that was the NPDES direct discharge permit. So I think that the data we have from the testing is very reassuring.

BP: There is a watershed, Otter Valley watershed initiative for the Otter Creek and I think that they’re finding that there aren’t as many fish as there were 20 years ago, so something is, something’s happening somewhere.

Tepper: I’m not sure I understand, is this a question again?

BP: Well I guess I’m trying to say that I think that there’s a lot of, lot of stuff coming out of there and some, there’s so much that what goes into the Otter Creek adds up to a lot.

Tepper: Well Miss Peterson what you’re doing is testifying.

BP: Oh,

Tepper: If you wish to testify at some point we may consider that but do you have any further questions.

Tepper: Okay thank you. Yes, Mr. Niles.

BN: I have a question. When they come up with, they use a new chemical, ain’t they supposed to be approved by the state before you use it?

AP: As part of the discharge permit there is a requirement, I think Tom is the best person to answer that as the Omya representative, I think they do have to report to the state. There is some sort of a process.

Tepper: I’m going to, I think that line of questioning we’re going to rule out of order, it doesn’t seem to be pertinent to the testimony that’s been given. Are there any other questions?

BB: The coordinator has a quick one for the witness.

Tepper: Ask it

BB: If you injected, if you found a way to continuously inject red dye number 42 or any other number 42 red dye or any other trace chemical going into the Omya aquifer, would you be startled, surprised or otherwise surprised to find that that had migrated to the Florence aquifer at some point in the future?

AP: You bet I would, I certainly would. That’s the last thing I could imagine happening. What you’re talking about is what’s commonly done in type of geology, it’s called a tracer test. Often what we use is (inaudible) bromine, something that doesn’t occur naturally, it does not react chemically so you can put it in the groundwater, wherever the groundwater goes, it goes. Entirely different from some of these substances that we’re talking about today which do react or stick. We could, dissolve completely, flows with the water, goes where the water does, doesn’t break down. Those are commonly. If we were to do a tracer test, it would certainly be beyond a shock if it were to turn up in any water supply well, but really what we’ve done here is the 20 plus year tracer test. We took that existing tailing stockpile, whatever’s in it and instead of the red dye we looked for where that stuff went. We see where it went and where it didn’t go. It certainly did not go into any of those wells.

Tepper: Any uh, I think you’re excused.