Omya Solid Waste Disposal Facility ( 2009 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re: Omya Solid Waste Disposal Facility }
Interim Certification } Docket No. 273-11-08 Vtec
(Appeal of Residents Concerned About Omya) }
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Decision and Order on Motions to Dismiss
Appellant group Residents Concerned About Omya appealed from a decision of
the Vermont Agency of Natural Resources (ANR) issuing an interim solid waste
management facility certification to Appellee-Applicant Omya Inc. Appellant group
Residents Concerned About Omya is represented by David Mears, Esq.; Appellee-
Applicant Omya Inc. is represented by Edward V. Schweibert, Esq. and Hans Huessy,
Esq.; the ANR is represented by Michael Steeves, Esq.; and amicus curiae Vermont
Natural Resources Council (VNRC) is represented by Jon Groveman, Esq.
Appellee-Applicant and the ANR have moved to dismiss the sole question in
Appellant’s Statement of Questions. The question reads in full as follows:
Do the provisions of Vermont’s Groundwater Protection Law, [10 V.S.A.
ch. 48] in (1) 10 V.S.A. § 1390, relating to the state’s obligation to manage
and protect groundwater as a public trust resource[,] and (2) 10 V.S.A.
§ 1394, relating to the standards applied to and the authorized uses of
groundwater, preclude the issuance of an interim certification authorizing
the dumping of contaminated waste into unlined pits in direct contact
with groundwater?
Appellant has raised as the issue on appeal the way in which Vermont’s already
existing and recently amended statutes addressing groundwater should or should not
be considered by the ANR (or by this Court in this de novo appeal), in carrying out its
responsibilities under 10 V.S.A. § 6605b. The decision on appeal was issued pursuant to
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10 V.S.A. § 6605b, within Chapter 159 of Title 10, governing Waste Management. As
such, it may be appealed to this Court. 10 V.S.A. § 8503(a)(1)(N).
Most importantly, the motions conflate the concept of an appeal of an ANR
decision under 10 V.S.A. § 8504(a) with the concept of a “cause of action.”1 The issue in
the present case is only raised in the context of an appeal of an ANR solid waste interim
certification decision made under 10 V.S.A. § 6605b. This appeal does not constitute a
“cause of action” or “right of legal action” at all, in contrast to the private cause of
action provided in 10 V.S.A. § 1410(c).2 Appellant has simply appealed the ANR’s
interim certification decision, under 10 V.S.A. § 8504(a), and does not claim a private
right of action in this proceeding.
Because this appeal does not implicate a cause of action or private right of action,
it is therefore not necessary at this time to examine the parties’ arguments
distinguishing the scope of private rights of action regarding groundwater quantity as
distinct from the scope of such private rights of action regarding water quality.
Under 10 V.S.A. § 6605b(b), the issuance of an interim certification requires
certain affirmative findings regarding, among other things, the effect of the proposal on
the environment and the consistency of the proposal with the state solid waste
management plan. Under 10 V.S.A. § 6605b(c), an interim certification is required to
contain, among other things, provisions for groundwater monitoring, as well as to
contain “conditions, requirements and restrictions as the secretary may deem necessary
to preserve and protect the public health and the environment.”
1 Black’s Law Dictionary (8th ed. 2004) defines “cause of action” as “a factual situation
that entitles one person to obtain a remedy in court from another person,” while an
“appeal” is defined as a “proceeding undertaken to have a decision reconsidered by a
higher authority; esp., the submission of a lower court's or agency's decision to a higher
court for review and possible reversal.”
2 First enacted in 1985, at least in part in response to the existing common law doctrines
regarding groundwater, which were described in Drinkwine v. State, 129 Vt. 152, 153–
54 (1970).
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It will be for the merits of this appeal, or for motions for summary judgment, to
determine whether or in what respect the policy directives referenced in 10 V.S.A.
§ 1390, at least several of which refer to groundwater quality, are or are not applicable
to the interim certification at issue in the present appeal. Similarly, it will be for the
merits of this appeal, or for motions for summary judgment, to determine whether or in
what respect 10 V.S.A. § 1394 affects or should be considered in connection with the
interim certification at issue in the present appeal.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED
that Appellee-Applicant’s and the Vermont Agency of Natural Resources’ Motions to
Dismiss are hereby DENIED. A telephone conference has been scheduled (see enclosed
notice); please be prepared to discuss a schedule for mediation, for the submission of
the appeal by motions for summary judgment, as discussed at the last pretrial
conference, including the filing of any evidence or testimony in writing, or whether an
evidentiary hearing may be necessary.
Done at Berlin, Vermont, this 15th day of April, 2009.
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Merideth Wright
Environmental Judge
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