Judge rejects Omya lawsuit
By Bruce Edwards
STAFF WRITER | October 01,2009
Neighbors of Omya's Florence calcium carbonate plant have lost a federal lawsuit that claimed the company's chemically tainted marble waste posed a threat to their drinking water.
U.S. Magistrate Judge Jerome Niedermeier issued his decision Wednesday, ruling that Residents Concerned About Omya failed to prove that the company's actions "have created an imminent and substantial endangerment to the health or the environment."
Niedermeier's 12-page decision dismissing the lawsuit was a reversal from his July 2008 ruling which found that Omya's dumping had violated provisions of the federal Resource Conservation and Recovery Act.
In last year's decision, Niedermeier said that the marble waste containing the chemical AEEA (aminoethylethanolamine) dumped in unlined quarries created the risk of "an imminent and substantial endangerment to health or the environment."
But following a subsequent three-day evidentiary hearing in March in Burlington to determine the appropriate remedy, Niedermeier found that plaintiffs failed to prove their case that AEEA posed a threat to their drinking water.
AEEA — a flotation reagent that's added to the calcium carbonate manufacturing process — has been shown to cause birth defects in laboratory rats. But Niedermeier noted that the validity of the report as well as its impact on humans "is not clear" and that the off-site testing results for AEEA of 3 parts per billion and 9 parts per billion were well below Vermont's suggested drinking water standard of 20 parts per billion.
Niedermeier also found that Omya's medical toxicologists "were very persuasive witnesses.
"At best, the evidence supports a finding that there is a possibility that AEEA may be harmful to humans in the environment in undetermined dosages," Niedermeier wrote. "However, this is not sufficient to establish that there is a probability of a safety risk that is both imminent and substantial."
In reaching his decision, he also noted the absence of AEEA in drinking water and that the chemical has never been detected in groundwater off-site. AEEA was found in surface water off-site but only twice and at low levels, Niedermeier wrote.
Omya CEO Tony Colak said the decision affirms the company's commitment to health, safety and the environment.
"This ruling supports our position and demonstrates to our neighbors, stakeholders and community at large that our operations are in full compliance and have not damaged or posed a threat to human health or the environment," Colak said in a statement from company headquarters in Cincinnati.
The company also said that the Florence facility is in compliance with its state-issued solid waste interim certification that requires Omya to conduct quarterly and semi-annual water monitoring for a variety of chemicals.
David Mears, the lawyer representing Residents Concerned About Omya, called Wednesday's ruling a loss for residents. He said an appeal is possible.
Mears, director of the Environmental and Natural Resources Law Clinic at Vermont Law School, also said he was puzzled at Niedermeier's decision.
"We thought the judge got it right the first time," Mears said, referring to last year's ruling. "It appears that the very expensive toxicologists that Omya brought in to testify in the case persuaded the judge there was some uncertainty about whether this chemical, AEEA, is toxic to humans."
He said that the plaintiffs were not allowed the opportunity to present rebuttal evidence, including testimony from the state toxicologist.
In his decision, Niedermeier addressed his earlier ruling, writing that his previous order did not go beyond a finding of "risk" and did not analyze "the imminency and seriousness of the risk … ." He continued that at the time the court did not have the "benefit of the underlying test data."
Annette Smith of Vermonters for a Clean Environment said that the court was apparently unaware that AEEA was removed as an ingredient in shampoo products.
"I believe that if he had known that AEEA had been quietly removed from shampoo by the industry based on the same studies he is now believing to be inconclusive, his decision would have been different," Smith said in an e-mail.
Mears said that progress has been made in getting Omya to change the way it disposes of future waste. He said the problem is the millions of tons of waste that remain in unlined quarries on Omya's property.