Whistleblower: State bent rules for Omya
By Bruce Edwards
Staff Writer | June 15,2008
A state regulator has accused his own department of ignoring the law when it decided in April to issue a draft solid waste disposal permit for Omya Inc.
John Brabant, a 20-year veteran of the Waste Management Division, said the state should bring an enforcement action – a statement of violations along with possible penalties – against Omya because its unpermitted waste site is not in compliance with the state's solid waste laws.
In a rare set of public statements, Brabant is also accusing the agency of trying to protect Omya from a federal lawsuit filed on behalf of residents who live near the plant.
"If it were any other facility we would see it for what it is," said Brabant, an environmental analyst with the Waste Management Division of the Agency of Natural Resources. "It's a landfill. It has no permits."
Brabant accuses the Agency of Natural Resources of working on Omya's behalf. He said the agency is using a different standard for the company and cited the enforcement action taken against Intervale Compost Products in Burlington, which was found to be in violation of its solid waste certification and also lacked an Act 250 land use permit. ANR also fined the town of Shrewsbury transfer station $9,200 for failing to renew its permit in a timely fashion and for what Brabant termed minor violations.
John Sayles, ANR's deputy secretary, said the agency's enforcement action against Intervale Compost Products was based on a determination that if the leachate at the site entered the groundwater "that would cause an imminent threat and it was appropriate to take action," Sayles said. In Omya's case, he said a recent study concluded that the Omya site posed no such threat.
An Omya document on file with the Agency of Natural Resources also raises questions about the relationship between the agency and Omya, the world's largest producer of calcium carbonate and a major employer in Rutland County. In the document, Omya seeks ANR's help in protecting the company from the ramifications of the federal lawsuit filed by neighbors against the company.
Brabant, who is a shop steward for the Vermont State Employees Association, said at a public hearing last month in Pittsford that the agency was not following its own rules. He alleged in a statement, as an employee of the Waste Management Division, that if the interim certification for Omya is issued, it would allow the continued dumping of marble waste for at least another two years while the company proceeds with a state-approved plan to close the unlined pits.
The Agency of Natural Resources is evaluating comments from the public hearing before deciding whether to issue a two-year waste disposal facility permit for the tailings dump.
The state began to reconsider whether Omya needed a permit after neighbors of the plant raised concerns about possible groundwater contamination. In 2005, the Agency of Natural Resources, under pressure from advocacy groups and residents near the plant, determined that a waste disposal permit was required, though a two-year interim certification permit for the waste site has yet to be issued.
Three years ago, neighbors of the plant filed a lawsuit to stop the company from continuing to dump its tailings. Neighbors worry that contaminants from the waste may eventually leach into their drinking water. The suit is pending in federal court in Burlington.
Section 5 Study
In addition to ANR mandating a solid waste permit, the Legislature in 2005 ordered a study of the waste site's environmental impacts. The independent, multi-stakeholder report, known as the Section 5 Study, which was released in February, concluded that Omya's operations posed "no current threat to human health or the environment" and that "the potential for future threats appears to be small."
The $2.5 million study, paid for by Omya also recommended continued monitoring of groundwater and drinking water. The study was conducted under the auspices of Cambridge Environmental Inc., and Geosyntec, both located in Massachusetts.
The findings of fact in ANR's 14-page draft interim certification noted groundwater on Omya's site is contaminated in limited concentrations with manganese, iron, arsenic and aminoethylethanolamine, or AEEA, a chemical that causes birth defects in laboratory rats. (Omya does not use arsenic in its manufacturing process. The study found that the company's manufacturing process may exacerbate naturally occurring arsenic present in the soil where the tailings are dumped.)
The findings of fact also noted that while no drinking water wells have been contaminated, three private wells and the Florence public well contained small amounts of perchlorate, a chemical once found in blasting material used by Omya at its nearby Hogback quarry. A spring not used for drinking water on private property near the plant was also found to contain small amounts of AEEA and stearic acid.
Omya is currently constructing a $10 million dewatering facility that squeezes water out of the marble waste and eliminates 90 percent of the contaminated process water from the tailings. Once in operation, Omya would need to apply for full solid waste disposal facility permit for a new tailings site. The company is also exploring commercial uses for the remaining 10 percent of marble waste, which would be a clay-like substance.
However, there is no plan to remove the existing tailings that have accumulated in the three existing unlined quarries.
According to Brabant, following passage of Act 78, the state's solid waste law, interim certifications were issued in the late 1980s and early 1990s to allow unlined landfills time to close. He said all unlined landfills were mandated to close by 1992.
"You don't sit down and discuss strategy as to what will benefit them the most," Brabant said, referring to ANR's dealings with Omya. "You discuss what is going to send a signal to the responsible party to correct their behavior."
John Sayles, ANR's deputy secretary, said the two cases are dissimilar. The agency's enforcement action against Intervale Compost Products was based on a determination that if the leachate at the site entered the groundwater "that would cause an imminent threat and it was appropriate to take action," Sayles said. In Omya's case, he said the exhaustive Section 5 study concluded that the Omya site posed no such threat.
A shared concern for the company and ANR, according to Brabant, is the outcome of a three-year-old federal lawsuit filed on behalf of several neighbors living in the vicinity of the Omya plant in the Florence section of Pittsford.
He said if the agency took the appropriate route of issuing an enforcement order to close the quarry pits, the record would show that Omya was operating a landfill without a permit in violation of the law. Such an admission by Omya and the state, Brabant said, would be "pretty condemning at the federal level" and used as evidence in the lawsuit against the company in arguing the dumping should cease.
A three-page Omya document on file with ANR dated Aug. 9 (2007) titled "Bridge Construction Elements," raises questions about the relationship between the agency and the company. The document outlines how the company would transition or bridge from the current situation with no waste disposal permit to a permitted waste facility.
"No harm to Omya in its defense of the federal lawsuit by RCO (Residents Concerned About Omya)," is the notation under the heading "Legal/Regulatory." Another typed notation under the same heading reads, "Administrative order and effect 'of violation' on legal proceedings and "serious federal lawsuit implications."
The document also makes this observation: "Avoid future challenges to continued operations — cannot afford to have 'solution' that leaves ANR or Omya vulnerable."
Under the heading, "Process," the document noted that, "Both the vehicle and its conditions must be able to withstand legal scrutiny — reduces risk to ANR and Omya."
Jamieson, the Solid Waste Program manager, said the document was developed to assist discussions between the company and ANR.
Asked about the repeated references to the federal lawsuit, Sayles said that the document had no bearing on the agency's deliberations.
"Omya's position in any lawsuit did not enter into the agency's calculations on protecting the public health or the environment," he said.
Omya spokesman James Hamilton said the company created the draft document, sharing its views and concerns with state regulators. Those concerns, Hamilton said, rightly included the federal lawsuit.
"I think it's a reasonable request for a regulated entity to express its business interests to the regulators, and it's up to them to decide what's the appropriate course of action," he said.
Hamilton also said that based on the findings of the independent study the company believes that an interim certification as a solid waste disposal facility, rather than an enforcement order, is the appropriate course of action.
In fact, he said the company welcomes regulation. "We feel the Agency of Natural Resources has the requisite skills and experience to effectively carry out its regulatory responsibilities."
He declined, however, to speculate on the effect of an enforcement order on the neighbors' lawsuit.
Before the Section 5 Study was completed, Omya filed a draft "guidance" document with ANR on Nov. 13, 2007, containing elements that might be included in the final draft interim waste certification for the tailings sites.
The eight-page document included a signature page for approval by ANR and Omya. The draft version was drawn up prior to the release of the Section 5 study three months later.
When asked why the draft document was written before the release of the study, Sayles said there was nothing inappropriate about the document and the exchange of information.
"I think it would on the other hand be imprudent of us not to be talking to Omya, not to be setting the table for how we were going to move forward once we knew the information in the Section 5 study," he said. "I don't think anything in that document presupposed what the results of the Section 5 Study were going to be."
When reminded that the November draft contained a signature page for approval by ANR and Omya, Sayles said that was done "if it made sense to be an agreement between Omya and the agency. As it turned out, it didn't make sense."
Brabant reiterated that the correct action for the state to take is enforcement action that would cite alleged violations of operating an unlined landfill and set a more definitive timetable for closure of the quarry pits. He said an interim certification would show no such violations and could lead to the issuance of a second interim certification for another two years.
Brabant also said Omya is not solely to blame for creating the current situation.
"We are partners in this mess for sure," he said, referring to ANR.
Jamieson disagreed with Brabant's assessment, saying the draft interim certification was the appropriate response.
She said the agency is working toward closure of the quarry pits where the marble waste has been dumped. Jamieson acknowledged that a second two-year interim certification could be issued that would allow Omya more time to close its tailings sites.
Jamieson said because the company was disposing earth material there was a question within the agency whether a solid waste facility permit was needed at all. She said a final determination in 2005 was made that a waste disposal permit was required.
She said given that history it would be difficult for ANR to issue an enforcement order when the agency first decided the company didn't need a permit then making a different determination that a permit was required.
"I think our views of these kinds of material have changed over time, and I think that's what has happened," she said. "Omya has been in existence for a long period of time. It's not like they came online two years ago and built something without having a permit."
Brabant's concerns are shared by Residents Concerned About Omya, a group of neighbors suing Omya in federal court. The neighbors are represented by the Environment and Natural Resources Law Clinic at Vermont Law School. Interim certification is also opposed by Vermonters for a Clean Environment.
"Allowing Omya to continue the disposal of waste into these unlined pits for the next several years as allowed under the draft certification, will only exacerbate this threat and harm," wrote the Environment and Natural Resources Law Clinic's David Mears in his May 29 comments to the Vermont Solid Waste Management Program.
Mears urged the Department of Environmental Conservation to deny interim certification and instead issue an enforcement order requiring Omya to cease its dumping within a specified time.
Mears is familiar with the internal ANR document that outlines the Bridge Construction Elements. And while declining to draw any conclusions, Mears said that "it would be troubling to think the agency would be attempting to protect Omya from litigation."
He said what's worrisome is that the most obvious action the agency could take — an enforcement action — wasn't taken. Instead, Mears said the state's inaction has effectively given Omya a permit to continue its dumping into the future.
Jamieson said again the overarching reason for ANR to pursue interim certification was the conclusion reached in the Section 5 Study that the chemically treated marble waste or tailings did not pose a risk.
"In Vermont and elsewhere we don't regulate to zero discharge. … We do allow activities as long as they occur within an acceptable risk," she said. "And I think the Section 5 Study demonstrated that this activity is occurring within an acceptable risk."
She also said the interim certification process allows the public to be involved as opposed to the agency issuing an administrative order.
Mears, however, said the groundwater at Omya's site is being contaminated and flies in the face of last week's bill signing by Gov. James Douglas making water aquifers part of the public trust. "Nobody's going to be drinking Omya's groundwater any time soon," Mears said.
Brabant added that the elevated levels of arsenic, manganese and iron under Omya's property are of serious concern.
Asked whether there has been political pressure on the part of the governor's office to bend the rules in Omya's favor, Sayles said, "No."
"Let me put it this way. We always brief the governor's office, on being the (ANR) secretary's office, on significant activities that are going on," Sayles said.
"Certainly if we were working on a major permit for the Energizer plant, or FiberMark, or for IBM, we would be probably briefing the governor's office on the status of that, and we certainly did that in this case," he said. "But it wasn't anything more than what we would do for any other like situation."
Hamilton, the Omya spokesman, categorically denied the company used political pressure of any kind in its dealings with ANR.
"In no way, shape or form did we apply political pressure through the agency or any other channels," he said. "We're forthright, honest in dealing with our regulators, and we will continue to adopt that course going forward."
In Brabant's view, however, the entire process regarding Omya has been political in nature. "Everything is colored with the pen of politics," he said.
The calcium carbonate company has its supporters, including the town of Pittsford and the Rutland Economic Development Corp.
In her May 29 comments following the public hearing then Pittsford Town manager Kathleen Swinington Ramsay wrote that the interim certification "requires Omya to operate in the most environmentally friendly manner possible, striking a vital balance between environmental and economic concerns. Under the interim certification, the waste will be managed according to state guidelines, subject to monitoring by the state, and Omya, a critical component of our local and regional economy, will continue to operate."
Ramsay also cited the conclusions of the Section 5 Study in supporting the issuance of an interim certification.
Contact Bruce Edwards at firstname.lastname@example.org.