Rutland Herald

Omya asks agency to rethink ruling on waste, dam permits

December 29, 2003
By BRUCE EDWARDS
Herald Staff

Omya Inc. has asked the state Agency of Natural Resources to reconsider a decision that requires the calcium carbonate company to obtain a solid waste permit to dispose of marble waste from its Florence plant.

Jeffrey Wennberg, commissioner of the state's Department of Environmental Conservation, ruled in November that Omya needed a solid waste disposal permit for a proposed 32-acre tailings storage facility. The decision reversed his own preliminary ruling in September that, as a mining operation, Omya's "earth materials" were exempt under state law and therefore no permit was required.

In his final decision, however, Wennberg sided with opponents who had expressed concerns about possible chemical contamination from the tailings, which are a byproduct of crushing marble in the calcium carbonate processing operation.

Specifically, Wennberg cited a state Department of Health concern about the possible effects of tall oil on groundwater in the immediate vicinity.

The Health Department found that chemical additives (including acetone) have been "detected in groundwater monitoring wells near the (existing) tailings site" and that the amounts detected were "at levels of regulatory concern."

Tall oil is used as a flotation agent to separate the tailings from the slurry product.

Omya's position is that it shouldn't be required to obtain a solid waste permit because mining operations are exempt under state law and that the marble tailings, or leftovers, pose no health or environmental risk.

The company has also appealed Wennberg's decision that requires Omya to obtain a dam permit for its above-ground storage facility, which would have a 10-year life span and reach a maximum height of 80 feet.

In its Dec. 19 letter to Elizabeth McLain, secretary of the Agency of Natural Resources, Omya's attorney argued that the tailings should not be considered solid waste.

"Omya purposefully has retained the tailings product in order to reclaim the approximately 50 percent calcium carbonate content," Edward Schwiebert wrote in his letter. "Stated otherwise, the tailings product is not 'waste' precisely because it is not normally discarded."

Schwiebert also argued that the tailings cannot be considered waste because the material remains on Omya's property and under the company's control and therefore is not "discarded."

However, in their response, Residents Concerned About _Omya took issue with the company's position, stating that the 3 million tons of pilings at the site have accumulated for more than 20 years "and have 'never' been recovered for anything."

"Nor has Omya presented any evidence for a market for the 100,000 tons of new tailings it proposes to add to the pile each year for an indefinite period into the future," said the letter from RCO, which is represented by the Environmental and Natural Resources Law Clinic at Vermont Law School.

RCO also called "disingenuous" the company's argument that the tailings are not waste because the material remains under its control. According to the RCO letter, by definition Omya's tailings are considered solid waste under state law.

In seeking reconsideration, Omya also continued to maintain that the chemical additives pose no health risk.

In his letter to McClain, Schwiebert took issue with the standards used by the Department of Health indicating that the suggested health advisory of 25 parts per billion was too vague.

Furthermore, Schwiebert said that 55 groundwater samples had been take on site and only two of the samples detected the presence of tall oil. One sample was well below the state's suggested standard while the other sample of 2,000 ppb taken in July should be considered an aberration, Schwiebert wrote.

He said the high reading was undoubtedly caused by a concentrated amount of tall oil that was absorbed by the solid particles and not from the groundwater, and therefore was not a representative sample.

Since the July sample, no tall oil has been detectable in that particular test well or in any other groundwater sample, Schwiebert said.

Again, the RCO disagreed, arguing that whether or not the water samples contain evidence of contamination is irrelevant.

"The point of the solid waste laws is to prevent environmental contamination before it happens," wrote Patrick Parenteau, director of the Environmental and Natural Resources Law Clinic.

RCO also addressed the larger question of the exemption for "earth materials" from the Solid Waste Management Rules.

The RCO's position is that there is no exemption for processed mine tailings that contain "chemical additives such as those that have been dumped in open pits, on top of fractured bedrock, at Omya's Florence facility."

The RCO said that the state should initiate a rule change to delete the earth materials exemption and replace it with an exemption that carefully spells out an exemption for benign materials that are free from chemical and biological contamination.

In its letter for reconsideration, Omya also asked McClain to overturn Wennberg's decision that mandates the company to obtain a dam permit.

Omya said that contrary to Wennberg's assertion that the storage facility was capable of holding 40 million cubic feet of slurry, the site would hold no more than 450,000 cubic feet of water and sediment.

Since the site won't exceed 500,000 cubic feet, no dam permit is required under state law, Schwiebert wrote.

Omya is the world's largest producer of ground calcium carbonate. The mineral is used in the paint, paper, plastics and pharmaceutical industries.

Contact Bruce Edwards at bruce.edwards@rutlandherald.com.