1 

STATE OF VERMONT 

SUPERIOR COURT ENVIRONMENTAL DIVISION 

 

 } 

In re Omya Solid Waste Facility } 

 Interim Certification and } Docket No. 273-11-08 Vtec 

 Final Certification } Docket No. 96-6-10 Vtec 

(Appeals of Residents Concerned about Omya) } 

 } 

Decision and Order on Motion to Dismiss for Lack of Party Status

 In Docket No. 273-11-08 Vtec, Appellant Residents Concerned about Omya 

appealed from a decision of the Vermont Agency of Natural Resources to grant 

interim certification to Omya, Inc.’s solid waste disposal facility at its Verpol Site in 

the village of Florence, in the town of Pittsford, Vermont. In Docket No. 96-6-10 

Vtec, Appellant appealed from a decision of the ANR to grant final certification to 

Omya, Inc.’s solid waste disposal facility at the same site. 

 Appellant Residents Concerned about Omya (Appellant or RCO) is now 

represented by Sheryl Dickey, Esq., of the Environmental Law Clinic of the Vermont 

Law School.1 Appellee-Applicant Omya, Inc. (Applicant or Omya) is represented by 

Edward V. Schwiebert, Esq., Hans Huessy, Esq., and Michael A. Stahler, Esq. The 

Vermont Agency of Natural Resources (ANR) is represented by Catherine Gjessing, 

Esq. and Matthew Chapman, Esq. Amicus curiae Vermont Natural Resources 

Council (VNRC) is represented by Jon Groveman, Esq. 

 

1

 David K. Mears, Esq., who remains listed as co-counsel, is on leave from the 

Vermont Law School for the 2010–11 academic year. 
2 

 Applicant owns and operates a calcium carbonate processing facility in the 

village of Florence, located in the town of Pittsford, at which it produces calcium 

carbonate by grinding up and processing marble. The tailings or waste products of 

this process have historically been placed in unlined disposal pits, referred to in the 

certifications as Tailings Management Areas (TMAs). It is undisputed that 

groundwater underneath the Verpol Site, immediately downgradient from the 

TMAs, contains aminoethylethanolamine, a chemical component of the flotation

agent used by Omya in its processing operations, as well as containing elevated 

concentrations of the elements iron, manganese, and arsenic. The parties also do not 

dispute that, in some tests of off-site groundwater, iron and manganese have been 

detected at concentrations in excess of secondary groundwater standards, although 

such concentrations are similar to those typically found in area groundwater. It is 

also undisputed that aminoethylethanolamine and arsenic have not been detected in 

elevated concentrations in groundwater beyond the boundary of the Verpol Site. 

 On August 15, 2005, Applicant applied to the ANR for interim certification of 

its unlined tailings disposal pits. On October 21, 2008, the ANR issued an interim 

certification for the unlined tailings disposal pits. The interim certification is the 

subject of Docket No. 273-11-08 Vtec. 

 On May 8, 2009, Applicant applied for 5-year final certification of its 

proposed lined tailings disposal facility. On May 6, 2010, the ANR approved final 

certification of the proposed facility, and, in mid-October, approved an amendment 

to the final certification. The parties have agreed that the amendment should be 

considered within the existing final certification appeal. The final certification, as 

amended, is the subject of Docket No. 96-6-10 Vtec. 
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Motion to Dismiss for Lack of Party Status

 Appeals of ANR decisions are governed by 10 V.S.A. § 8504 and V.R.E.C.P. 5.2

 

Under V.R.E.C.P. 5(d)(2), once an appellant has claimed party status as a person 

aggrieved pursuant to 10 V.S.A. § 8504(a), that appellant is accorded party status 

unless the Court otherwise determines on its own motion, by ruling on a motion to 

dismiss, or by ruling on a motion to intervene. Applicants have moved to dismiss 

the appeals for Appellant RCO’s lack of standing and for failure to state a claim 

upon which relief can be granted. 

 First, unincorporated associations, as well as for-profit and non-profit 

corporations, fall within the definition of “person” under 10 V.S.A. § 8502(6). A 

person is considered to be “aggrieved” by an ANR decision, and therefore entitled 

to appeal the decision under § 8504(a), if that person “alleges an injury” to a 

“particularized interest protected by” the listed statutes (which include 10 V.S.A. 

chapter 48 (groundwater protection) and chapter 159 (waste management), and the 

injury is “attributable to [the] decision” on appeal, and “can be redressed by” this 

Court. 10 V.S.A. § 8502(7). 

 To have standing as an organization, RCO must show that its members have 

standing individually, that is, that one or more of them meets the criteria of being a 

“person aggrieved” under § 8502(7). RCO must also show that the interests it 

asserts are germane to its organizational purpose and that the claim and relief 

requested do not require the participation of the organization’s individual members. 

In re: Entergy Nuclear/Vermont Yankee Thermal Discharge Permit Amendment, 

No. 89-4-06 Vtec, slip op. at 7 (Vt. Envtl. Ct. Jan. 9, 2007) (Wright, J.) (citing Parker v. 

 

2

 Although, after the July 2010 judicial reorganization, the rules are now referred to 

in the statute (4 V.S.A. § 30(a)(1)(D)) and in the Reporter’s Notes as the “Vermont 

Rules for Environmental Proceedings,” Rule 7 of the rules themselves still gives the 

rules’ title as the “Vermont Rules for Environmental Court Proceedings” and the 

official abbreviation as “V.R.E.C.P.” 
4 

Town of Milton, 169 Vt. 74, 78 (1998)); Hunt v. Washington State Apple Advertising 

Comm., 432 U.S. 333, 343 (1977). 

 Although RCO has not provided any information about its organizational 

structure or purpose, it appears to be an unincorporated community association of 

specific individuals, unlike the two incorporated not-for-profit organizations 

discussed in Entergy Nuclear/Vermont Yankee, No. 89-4-06 Vtec, slip op. at 6 n.5. 

Cf. Vermont Agency of Natural Resources v. Upper Valley Regional Landfill Corp., 

159 Vt. 454 (1992) (allowing intervenor unincorporated association to appear 

through lay representative). RCO’s membership includes at least five members who 

are residents of Florence or Pittsford and have submitted statements in this 

proceeding; RCO’s memorandum states that its members use the Pittsford-Florence 

public water supply or private wells for drinking water and domestic uses. 

 Five of RCO’s members who are residents of Florence have submitted sworn 

(but not notarized) statements describing their use of surface waters and ground 

water supplies near Omya’s Verpol Site. RCO members Ernest Brod and Umberto 

Rosato use private wells for their drinking water and domestic uses; their statements 

state their concern about the potential for chemicals from the unlined TMAs to 

contaminate their wells. Mr. Rosato also used a brook on the boundary of his 

property and that of Omya for drinking water as a child, but no longer does so 

because of his concern about contamination of the water. RCO member Beverly 

Peterson uses the public water supply in Florence and is concerned about the 

potential for its contamination with chemicals leaching into the groundwater from 

Omya’s unlined TMAs. RCO members Susan Shaw and Robert DeMarco describe 

their use and enjoyment of Smith Pond and Otter Creek, claiming that they no 

longer swim in or eat fish from either water body because of their concern over the 

potential for contaminated groundwater from the unlined TMAs at Omya’s Verpol 

Site to contaminate nearby surface waters. 
5 

Absence of Need for Participation of Individual Members

 The relief requested by RCO—the remand of the permit applications for 

consideration by the ANR under a public trust doctrine applicable to groundwater—

does not require the participation of its individual members. The issues in this 

appeal relate to the interests of RCO’s members in the effect on groundwater of 

Omya’s disposal of tailings at its Verpol Site, and not to any private claims, for 

example, for damages or nuisance. See Hunt, 432 U.S. at 343; see also United Food 

and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 558 

(1996) (ruling that a federal statute may allow certain types of organizations to seek 

damages on behalf of their members). 

Individual Standing of RCO Members 

 The question of whether any individual members of RCO would have 

standing individually to appeal is analyzed under 10 V.S.A. § 8502(7), which is 

specific to appeals to this Court. To have individual standing, the individual 

members of RCO must 1) allege an injury; 2) to a particularized interest; 3) which is 

protected by the provisions of a law listed in 10 V.S.A. § 8503; 4) that is attributable 

to the decision made by the Secretary; and 5) that can be redressed by this Court. 

A particularized interest is one that is not necessarily shared by the general 

public, and may include the individual members’ recreational or aesthetic interests 

in nearby surface waters, as well as their use of groundwater. See In re: Champlain 

Marina, Inc., Dock Expansion, Docket No. 28-2-09 Vtec, slip op. at 6 (Vt. Envtl. Ct. 

July 31, 2009) (Durkin, J.) (citing Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 

(2009)); see also Friends of the Earth, Inc. v Laidlaw Environmental Services, 528 

U.S. 167, 183 (2000). The named RCO members’ interests in a safe domestic and 

drinking water supply for themselves and their families, and their recreational use 

of surrounding water bodies, are specific enough to establish that the injury alleged 
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is to their particularized interests, and not merely to a policy interest of the general 

public. See Friends of the Earth, Inc., 528 U.S. at 183–84 (concerns about the effects 

of defendant’s discharges on plaintiff’s members’ recreational, aesthetic, and 

economic interests in a river were sufficient to establish threat of injury to a 

particularized interest); see also Entergy Nuclear/Vermont Yankee, No. 89-4-06 Vtec, 

slip op. at 9 (allegations about potential effect of increased thermal discharge on 

appellant groups’ members’ interests in the Connecticut River and its wildlife are 

specific enough to establish threat of injury to a particularized interest). 

RCO argues that its named members would have standing in their own right 

because their particularized interests are protected by Vermont’s groundwater 

protection statute, 10 V.S.A. ch. 48 and its waste management statute, 10 V.S.A. ch. 

159. The groundwater protection statute declares that it is Vermont’s policy “to 

minimize the risks of groundwater deterioration by regulating human activities that 

present risks to the use of groundwater in the vicinities of such activities.” 10 V.S.A. 

§ 1390(4). Additionally, it allows any person to bring an action in equity or tort for, 

among other things, “altering the character or quality of groundwater.” 10 V.S.A. 

§ 1410(c). Similarly, the waste management statute states that certification of a solid 

waste management facility, where appropriate, shall “contain such additional 

conditions . . . as the Secretary shall deem necessary to preserve and protect the . . . 

groundwater and surface water quality.” 10 V.S.A. § 6605(b)(6). The individual 

members’ particularized interests in the quality of the groundwater used for their 

domestic water supplies and potentially affecting the surface waters surrounding 

the Verpol Site are within the zone of interests protected by these statutes. 

For RCO to have standing, it must “allege at least the threat of an injury in 

fact” to its members’ protected interests. Town of Cavendish v. Vermont Public 

Power Supply Authority, 141 Vt. 144, 148 (1982) (internal quotations omitted). Five 

individual members of RCO have submitted statements alleging injuries to their 
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interests in the groundwater under the TMAs at issue in these appeals, and in the 

surface waters surrounding the Verpol Site. RCO members DeMarco and Shaw 

have alleged ongoing injuries to their fishing and other recreational use of Otter 

Creek and Smith Pond because of the disposal of tailings at issue in the decisions on 

appeal. RCO members Brod and Rosato have alleged injuries to their drinking 

water supplies due to the leaching of chemicals into the groundwater from the 

tailings disposal. RCO member Peterson also alleges injury to her fishing or other 

recreational use of Otter Creek, as well as the town water supply that she uses for 

drinking water and domestic uses. At this pretrial stage of the proceedings, the 

statute only requires that an organizational appellant’s members allege the requisite 

injuries; they need not prove the injuries they allege until it is necessary to do so at 

trial.3 See Parker, 169 Vt. at 76. 

The injuries to those interests alleged by the RCO members stem from the 

Secretary’s decisions to issue the interim and final certifications to Omya; that is, 

those decisions are alleged to allow the continued potential for leakage of leachate 

from the unlined TMAs even after the lined tailings disposal facility is installed 

above them. The Court is able to redress these alleged injuries in this de novo

appeal, by considering whether to issue the interim and the final certification, and, if 

issued, what conditions, if any, should be imposed. In making these decisions, the 

Court is required to apply the substantive standards that were applicable before the 

ANR. 10 V.S.A. § 8504(h). Thus, the named members of RCO have met all the 

requirements under 10 V.S.A. § 8502(7) for standing in their own right. 

 

3

 Of course, if any issues are raised as to whether such facts are disputed, in 

connection with a motion for summary judgment, a litigant may have to come 

forward with affidavits or as otherwise provided in V.R.C.P. 56, to show that there is 

a genuine issue for trial. V.R.C.P. 56(e). 
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Organizational Purpose

The final requirement for RCO to have organizational standing is that RCO 

must demonstrate that the interests it asserts in these appeals are germane to its 

organizational purpose. Entergy Nuclear/Vermont Yankee, No. 89-4-06 Vtec, slip 

op. at 7 (citing Parker, 169 Vt. at 78). That is, an organization’s “abstract interest in 

the outcome of an adjudication is insufficient,” even in a case, such as Parker and the 

present appeals, in which the public trust doctrine is implicated. Parker, 169 Vt. at 

78. 

On the one hand, the declarations of its members that RCO presented to the 

Court make clear that those members’ primary reasons for joining RCO was their 

concern about the potential environmental effects of Omya’s operations. See, e.g., 

Demarco Declaration at 7; Brod Declaration at 7. However, although RCO’s 

Memorandum in Opposition to Omya’s Motion to Dismiss states that “RCO formed 

in response to concerns over Omya’s improper and unregulated waste disposal 

practices and its impact on local water resources,” RCO has not provided any 

supporting documents, references to websites, or affidavits to the Court regarding 

RCO’s organizational purpose, or, indeed, whether it is a sufficiently defined 

organization to have an organizational purpose. 

 Of course, it is not uncommon in Vermont for a group of neighbors concerned 

about a proposed project to name their informal group with an organizational name 

for ease of reference when dealing with a proposed project or proceeding with 

litigation, rather than listing specific individuals as named parties. For example, in 

In re Unified Buddhist Church, Inc., Indirect Discharge Permit, Docket No. 253-10-06 

Vtec, (Vt. Envtl. Ct. May 11, 2007) (Wright, J.), an unincorporated association known 

as the Lull’s Brook Watershed Association was a named party, however, specific 

individuals were also listed as named appellants, so that the issue of organizational 

standing did not arise. By contrast, in the present case, although the five RCO 
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members who filed declarations have documented their individual standing to bring 

these appeals, they are not named appellants and RCO has not submitted sufficient 

information regarding RCO’s organizational purposes for the Court to determine its 

organizational standing. 

 

Accordingly, on or before November 29, 2010, RCO may supplement its 

filings regarding RCO’s organizational purpose(s), to allow the Court to address the 

present motion regarding RCO’s standing. If any motion to substitute individual 

RCO members as party-appellants in this matter is contemplated, it shall be filed by 

the same date. Responses to any such motions or filings may be filed on or before 

December 8, 2010. 

Done at Berlin, Vermont, this 16th day of November, 2010. 

 

_______________________________________________ 

 Merideth Wright 

 Environmental Judge