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Omya ruling sets precedent for Vermont Yankee

March 4, 2011

A recent ruling by the Vermont Environmental Court relating to groundwater pollution at Omya’s calcium carbonate processing facility in Florence supports the argument that radioactive leaks at Vermont Yankee nuclear power plant in Vernon have violated the public trust provisions of a groundwater protection law passed in Vermont in 2008.

“The court’s ruling supports our contention that Vermont Yankee’s continued contamination of groundwater violates the public trust,” said Elizabeth Courtney, VNRC’s Executive Director. “The ruling also has the effect of strongly supporting our call – and the call from many, many Vermonters – for this dangerous, leaking plant to be shut down,” she said.

“VNRC is pleased and Vermonters should feel good about this ruling. It will help protect critical groundwater resources,” said Kim Greenwood, VNRC’s Water Program Director, who is also VNRC’s staff scientist.

In the ruling, the court has held 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. Read the ruling here.

In analyzing the Legislature’s intent in passing the public trust law, the court wrote:

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

The decision is the first substantive judicial interpretation of the 2008 law (Act 199) designating Vermont’s groundwater to be a public trust resource. It is also significant because it creates precedent that is highly protective of groundwater, the source of water for some two-thirds of Vermonters.

The case (in Re Omya Solid Waste Facility Interim Certification and Final Certification) involved an appeal of the solid waste certification issued by the Agency of Natural Resources to Omya by residents that live near the Omya facility. The residents raised concerns about groundwater pollution from waste generated by Omya as part of its quarrying operation.

VNRC was a “friend of the court” in the case, and has led a movement over several years both around Vermont and within the Legislature to get groundwater declared a public trust resource. The 2008 law was the culmination of that work.

Also in the ruling, 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. The decision was issued February 28.

If you want to read the ruling on this issue, click here.