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Sandy Levine, senior attorney with the Conservation Law Foundation.

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A precedent for the public trust?

Recent environmental court ruling on Omya could affect Vermont Yankee

VERNON—The discussion about the tritium leaks at Vermont Yankee is about to change.

A recent ruling by Vermont Environmental Court Judge Meredith Wright, denying a waste disposal certificate for Omya Inc.’s calcium carbonate processing facility in Florence, sets a clear precedent for the protection of groundwater, say proponents.

“The court’s ruling supports our contention that Vermont Yankee’s continued contamination of groundwater violates the public trust,” said Elizabeth Courtney, executive director of the Vermont Natural Resources Council (VNRC).

“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.

According to the ruling, “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.”

Leaks at Vermont Yankee have rendered the ground water at the site unsuitable for public consumption, said Sandy Levine, senior attorney with the Conservation Law Foundation (CLF).

“Basically, that water is no longer available for public needs,” said Levine.

According to Levine, the Feb. 28 ruling is the first case from a court addressing the state’s 2008 groundwater statute (Act 199) and reinforcing groundwater as a public resource.

“It adds weight to the public interest in the groundwater. And it provides some authority for the PSB [Public Service Board],” said Levine.

Levine charges that under the groundwater statute, Vermont Yankee has violated its license to operate because there’s no statute allowing the release of contaminants into the groundwater.

The CLF has raised numerous concerns about Vermont Yankee with the Public Service Board and asked for enforcement action to be taken.

Water, water everywhere

In January 2010, tests of monitored wells at the nuclear plant revealed elevated levels of tritium, later traced to a clogged drain in a concrete tube surrounding underground pipes. Plant officials at the time had testified in Public Service Board proceedings that no such pipes existed.

The plant is also investigating a possible second tritium leak.

The Public Service Board does not have the responsibility to police for groundwater violations, “but once [the issue is] raised, it has a responsibility to take action,” said Levine.

According to a press release issued by the Vermont Law School, the Omya ruling stated the Vermont Agency of Natural Resources (ANR) must conduct a public trust analysis when issuing a waste disposal certification because the company’s marble processing activities might impact the groundwater, Judge Wright ruled.

The Vermont Law School’s Environmental and Natural Resources Law Clinic (ENRLC) “has played an important part in establishing a groundbreaking precedent that will help protect the groundwater resources of the state for future generations of Vermonters,” said ENRLC Acting Director Teresa Clemmer.

Calls to the ENRLC were not returned by press time.

“This is a new issue,” said ANR Secretary Deb Markowitz. “[The groundwater statute] is a new concept for Vermonters and groundbreaking for the country.”

The environmental court’s ruling is not “precedential” like a Supreme Court ruling, said Markowitz.

Levine agrees that, unlike a state Supreme Court, the environmental court is a guiding authority. But, she said, it’s the environmental court that normally decides these types of groundwater issues.

But the Omya ruling marks the first time the statue has been applied to an issue, and the courts are still deciding what the decision means for Vermonters.   

Markowitz said the ANR is studying the Omya decision to understand future implications for the agency’s permitting process and for the activities of business that could have an impact on the groundwater.

‘A lot of work’

VNRC water program director Kate Greenwood said of the ANR, “They’ve got a lot of work to do.”

Greenwood, who is also VNRC’s staff scientist, worked with her colleague, attorney Jon Groverman,  to get the law passed. She noted that cases of contaminated groundwater drive home the implications of pollution in a way that immediately resonates with people.

But she feels that comparing Omya to Vermont Yankee in an apples-to-apples way does not give a complete picture.

Omya was applying for permission to dispose of its waste, and no pollution occurred when its permit was denied. But because Vermont Yankee has no discharge permits, Greenwood said, the tritium leaks represent an ongoing illegal discharge.

Greenwood wonders when the ANR, which handles pollution and discharge issues, will say that  Vermont Yankee has committed an illegal discharge and take enforcement action.

Is it groundwater or drinking water?

Entergy spokesman Larry Smith said the company has yet to review the Omya ruling.

In numerous interviews with The Commons, Smith has said that tritium has not been found in the drinking water at the Vermont Yankee site and surrounding area.

To date, Vermont Yankee has pumped more than 325,000 gallons of tritiated water from the ground under the plant.

According to Greenwood, part of Vermont Yankee’s argument against the use of the groundwater statute is that the plant does not use the water as drinking water.

But the plant is not legally allowed to pollute that water in the first place, Greenwood said, because the law states that the aquifer below the plant must be potable.

So regardless of Vermont Yankee’s use of the water, the water going in or coming out of the plant must be suitable for drinking, she said.

According to Greenwood, two-thirds of Vermonters get their drinking water from a groundwater source, a high percentage compared to the rest of the country.

Vermonters should care about the quality of their drinking water even if they don’t live near Vermont Yankee, she said, adding that once the groundwater is contaminated, nothing can be done.

According to Greenwood, contamination in groundwater stays around longer than it does in surface water. Groundwater moves more slowly and stays in the ground longer than it does in a stream or a cloud. Also, it can be harder to remove pollutants, because they can cling to soil, she said.

“I’m not sure if the groundwater has been affected by the recent tritium leaks in Vernon,” said state Rep. Mike Hebert, R-Vernon. “All the drinking water wells have tested clean.”

Hebert said he had no major comment, at this point, on the impact of the Omya ruling  on Vermont Yankee, because he hadn’t researched the topic. He also stands by his position that the Legislature should not make the decision on the plant’s Certificate of Public Good. Rather, the more qualified Nuclear Regulatory Commission (NRC) and Public Service Board should decide the issue. (See story this issue.)

To Levine, however, the case is clear. It doesn’t matter whether it’s drinking water or groundwater. They’re the same thing, she said.

“Just because no one put a well there does not mean VY is within its rights to pollute,” said Levine.

And, she said, groundwater travels. The hydrology reports she has seen show cracks in the bedrock in an aquifer used by people living outside the plant’s boundaries.

“Regardless of what pollutant it was, it violates the public trust,” said Greenwood.

Entergy has said that it has not found any other pollutants in the water it has tested but, said Greenwood, the water is tested only for tritium.

“If you’re not looking for these things, you won’t find them,” she said.

Smith countered that Entergy tests for “everything,” including tritium and all other nuclear isotopes.

“All we’ve found is tritium,” he said.

Greenwood also said that she is not confident about Entergy’s understanding of the extent of the tritium plume. Although the company has tested laterally, its engineers have not gone deeper, and she doubts that they’ve found the plume’s bottom.

NRC spokesman Neil Sheehan responded to two phone calls with an e-mail saying, “The NRC has not yet had a chance to review that ruling and therefore would not be in a position to offer a comment on it. However, the agency is continuing to focus on ways to better protect against groundwater contamination at U.S. nuclear power plants."

But what about preemption?

Under federal law, only the NRC may regulate and enforce nuclear industry safety, a concept called “preemption.” Vermont is unique among U.S. states in requiring a Certificate of Public Good from the state Public Service Board as a condition of operation, and Entergy signed a memorandum of understanding in 2002 acknowledging the state’s authority to require a new certificate along with the NRC’s license extension.

After reading Entergy’s briefing for Docket 7600 — an investigation currently before the Public Service Board as to whether to require the company to cease operations or take other actions as a result of the tritium leak — Greenwood said she concluded that “preemption” was the company’s answer to every issue put before it.

Markowitz said ultimately the courts will decide if the NRC’s oversight of VY would preempt Vermont’s groundwater statute.

But none of the other parties agree with this response, she said, because it’s Vermont’s environmental law that covers these issues.

The fact that the NRC is not a party to the brief implies that the federal agency does not consider Vermont environmental law to encroach on its jurisdiction, said Greenwood.

The CLF has made a number of arguments that the Public Service Board is well within its authority to rule on Vermont Yankee, said Levine.

Entergy does not have any permission to contaminate the water, said Levine, and the contamination issue is separate from the radiological health and safety responsibilities of the NRC.

Levine said that the hearing on Docket 7600 was held a few weeks ago, and that she expects to hear the Public Service Board’s opinion soon.

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www.clf.org

Sandy Levine, senior attorney with the Conservation Law Foundation.

Originally published in The Commons issue #91 (Wednesday, March 9, 2011).

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