Preventing Groundwater Pollution in Southwestern Vermont

The Environmental and Natural Resources Law Clinic opening its doors in 2003When the ENRLC opened its doors in 2003, one of the first cases we accepted involved the representation of a grassroots group of citizens called Residents Concerned about Omya (RCO). Omya is a Swiss corporation that operates a marble quarry and mineral processing facility in Florence, Vermont. RCO's members, who lived close to Omya's operations, had been living with the odors, noise, dust, traffic, and potential groundwater contamination emanating from Omya's operations. Though Omya was dumping large volumes of industrial waste into unlined open pits in contact with the groundwater, Vermont's Department of Environmental Conservation had granted Omya an exemption from regulation under the state's solid waste laws. The waste contained a variety of industrial chemicals, some of which had not been disclosed to the public or the agency. Nor had they been analyzed to determine their toxicity. This method of waste disposal had been going on for years and had resulted in enormous piles of waste growing larger every day.

Since their homes and drinking water wells lay down-gradient from the waste piles, members of RCO were understandably concerned about what was in the waste, whether it could leach into the groundwater, and why the state was not regulating it.

Ground water pollution at Omya facility in Vermont
One of the first things the Clinic did was file a Petition for a Declaratory Ruling with DEC seeking a ruling that Omya's waste was not exempt under the Vermont Solid Waste Management Regulations. In response, DEC issued a determination that Omya's waste should be regulated, but the ruling was limited to the disposal of future waste. So the problem remained. The Clinic also sought an Order in federal court prohibiting Omya from dumping the waste in open pits pending the issuance of a proper solid waste facility certification.

Over the succeeding years a large number of student clinicians, fellows, and staff attorneys worked on the case. Here are some of the highlights.

  • A mediation process that did not resolve the waste disposal issue but did produce a number of improvements in Omya's operations that led to less noise, odor, and dust.
  • A study by an independent consultant that discovered the presence of Aminoethylethanolamine (AEEA) in the waste and in the groundwater onsite. The study was ordered by the Vermont legislature after a vigorous lobbying effort led by Annette Smith of Vermonters for a Clean Environment. This eventually led Omya to stop using the chemical and to switch to a more environmentally acceptable process.
  • Another study commissioned by RCO that discovered the presence of elevated levels of arsenic in the groundwater on site. Though disputed by Omya, RCO's experts testified that it originated with the waste piles. Omya eventually instituted an ongoing monitoring program to ensure that the arsenic does not reach drinking water supplies.
  • A decision by DEC to repeal the exemption provision under which Omya had operated for many years. The new provision outlaws open dumping of wastes like Omya's and provides much greater protection for groundwater.
  • A preliminary ruling by the Federal District Court in Vermont that Omya was liable for violations of the Resource Conservation and Recovery Act. The Court later reversed itself and found in favor of Omya. RCO appealed to the Second Circuit but lost on procedural grounds.
  • The issuance of an interim certification requiring Omya to cease dumping the waste in open pits and to adopt a more secure method of disposal.
  • A ruling by the Vermont Environmental Court that, in the interim certification, DEC had failed to make a public trust determination under a new Vermont statute declaring groundwater a public trust resource that requires special protection. This was the first application of the new law, and it recognized the public trust doctrine as a factor to be considered in permitting future waste disposal that may threaten groundwater.

At this point there are no pending legal actions against Omya. The long battle over the waste disposal is over, at least for now. Although the residents did not accomplish everything they had hoped for including the complete removal of all the waste on site, there is no question that things have greatly improved. The RCO v. Omya case has also provided a terrific learning opportunity for the many students who worked on various aspects of the case over the course of about a decade. Some of these clinicians appeared in federal court and presented expert testimony and cross-examined Omya's experts. Others drafted briefs and conducted discovery. Others learned how to file and argue a case in Vermont's unique Environmental Court. All of the clinicians had the opportunity to work with a wonderful group of clients and realize what a responsibility it is for a lawyer to represent individuals with a real stake in the outcome.

Selected Pleadings

Complaint for Declaratory and Injunctive Relief (without attachments) (June 2005)

Plaintiffs’ Motion for Partial Summary Judgment as to Liability on the First Claim of the Complaint (without attachments) (September 2005)

Plaintiffs’ Reply in Support of Motion for Partial Summary Judgment (December 2005)

U.S. District Court Opinion and Order (June 2006)

Reply in Support of Plaintiffs’ Motion for Partial Summary Judgment on Liability and Opposition to Defendants’ Motion for Summary Judgment on Count 1 (without attachments) (October 2007)

U.S. District Court Opinion and Order (July 2008)

U.S. District Court Opinion and Order (September 2009)

Appellants’ Brief – U.S. Court of Appeals for the Second Circuit (April 2010)

Environmental Division Decision and Order (February 2011)