Brod v. Omya Inc.

• Decision Date: 18 July 2011
• Docket Number: Docket No. 09–4551–cv.
• Parties: Ernest BROD, Robert DeMarco, Beverly Peterson, Residents Concerned About Omya, an unincorporated association under Vermont law, on behalf of its members who are residents of Pittsford, Vermont living in close proximity to defendants' Florence facility, Plaintiffs–Appellants,v.OMYA, INC., Omya Industries, Inc., Defendants–Appellees.*
• Court: U.S. Court of Appeals — Second Circuit

653 F.3d 156

73 ERC 1422

Ernest BROD, Robert DeMarco, Beverly Peterson, Residents Concerned About Omya, an unincorporated association under Vermont law, on behalf of its members who are residents of Pittsford, Vermont living in close proximity to defendants' Florence facility, Plaintiffs–Appellants,

v.OMYA, INC., Omya Industries, Inc., Defendants–Appellees.*

Docket No. 09–4551–cv.

United States Court of Appeals, Second Circuit.

Submitted: Sept. 13, 2010.Decided: July 18, 2011.

David K. Mears, Director of the Environmental and Natural Resources Law Clinic at Vermont Law School, South Royalton, VT, for Plaintiffs–Appellants.Alan P. Biederman, Biederman Law Office, Edward V. Schwiebert and Hans G. Huessy, Kenlan Schwiebert Facey & Goss, P.C., Rutland, VT, for Defendants–Appellees.Before: MINER, LEVAL, and WESLEY, Circuit Judges.MINER, Circuit Judge:

Plaintiffs-appellants, Ernest Brod, Robert DeMarco, Beverly Peterson, and Residents Concerned about Omya (collectively, the “plaintiffs” or “RCO”), appeal from a judgment entered September 30, 2009, in the United States District Court for the District of Vermont (Niedermeier, M.J.), vacating so much of a summary judgment as held defendants-appellees Omya, Inc. and Omya Industries, Inc. (collectively, “Omya”) liable for creating an “imminent and substantial endangerment” within the meaning of the Resource Conservation and Recovery Act of 1976, Pub.L. 94–580, 90 Stat. 2795 (October 21, 1976) (codified at 42 U.S.C. §§ 6901–92) (“RCRA”). Liability was predicated upon a finding that aminoethylethanolamine (“AEEA”) was present in Omya's waste. Following a remedy hearing held after the entry of summary judgment, the District Court (1) determined that, based on, inter alia, subsequent testing and expert testimony presented at the remedy hearing, the potential harm posed by AEEA did not in fact constitute a “serious endangerment,” and thus no remedy was warranted; and (2) granted Omya's motion to dismiss all claims related to AEEA because plaintiffs had failed to satisfy the citizen suit notice requirements of RCRA. In an Opinion and Order, dated July 1, 2008, the District Court dismissed RCO's open dumping claim, the court having found that arsenic was not present at a level high enough to subject Omya to liability under RCRA. In its complaint, which raised two claims, RCO alleged that Omya's waste disposal practices violated RCRA. RCO first claimed that Omya was creating an imminent and substantial endangerment to human health and the environment by permitting its waste to seep into the groundwater, thereby contaminating hydrologically-connected water sources with AEEA. RCO also claimed that Omya was operating an unlawful open dump because Omya's solid waste allegedly contained an amount of arsenic above the permitted level established by the Environmental Protection Agency (“EPA”). On appeal, RCO claims that the District Court: (1) erred by concluding that Omya's disposal of AEEA did not create an imminent and substantial endangerment; (2) erred by granting Omya's motion to dismiss all claims related to AEEA, the District Court having held that RCO failed to satisfy RCRA's citizen suit notice requirements; (3) erred in finding that Omya's disposal of solid waste did not violate RCRA's prohibition on open dumping; and (4) abused its discretion by denying RCO's request to present expert testimony on arsenic contamination and area toxicity. For the reasons stated below, we affirm.

BACKGROUND

Omya operates a calcium carbonate mineral processing facility (the “Plant”) in Florence, Vermont. It imports raw marble ore, primarily from three quarries in Vermont, and then processes the ore by crushing, purifying, and refining it into finished products, including “fine ground calcium carbonate.” To begin the purification process, Omya adds the crushed ore and a flotation reagent to tanks filled with water.¹ The flotation reagent then binds to naturally-occurring impurities in the ore. Much of the flotation reagent/impurities mixture floats to the top of the tank and is removed by skimming it off, apparently leaving the pure ore at the bottom of the tank. The water/flotation reagent/impurities mixture is then piped to “settling cells.” There, the residual solids settle to the bottom of the cells, and the water from the top of the cells is piped back to the Plant for re-use. The solids that remain are known as “tailings” and are comprised of water, mineral impurities, and flotation reagent. Omya disposes of the tailings into unlined, exhausted quarries, or Tailings Management Areas (“TMAs”), located near the Plant. The TMAs are in direct contact with fractured bedrock, which permits contaminants from the tailings to seep into the groundwater that flows through the adjacent bedrock.

The plaintiffs are concerned about the environmental and human health effects of Omya's disposal of its tailings. In particular, plaintiffs point to the negative impact that the tailings may have on the public water supply wells in Florence, Vermont, and on the streams, ponds, and wetlands adjacent to the TMAs. In 2002, the individual plaintiffs formed RCO to advocate for regulation and remediation of Omya's on-site waste disposal practices. RCO took action on November 12, 2004, by serving a notice of violation of RCRA and intent to file a citizen enforcement suit (“NOI”) on the EPA administrator, the Vermont Department of Environmental Conservation, the Vermont Agency of Natural Resources (“VANR”), and Omya, as required by the citizen suit notice provisions of RCRA. See 42 U.S.C. § 6972(b) (2006). RCO claimed that Omya violated RCRA's prohibition on unlawful open dumping of solid waste, in violation of 42 U.S.C. § 6945, and that Omya's disposal practices presented an “imminent and substantial endangerment” to human health and the environment, in violation of 42 U.S.C. § 6972. The NOI listed twenty-one chemicals allegedly contained in the waste from Omya's Plant and claimed that “there have been reports that the waste piles may contain other hazardous substances dumped there in the past.” It also alleged that “the wastes are contaminated with numerous chemicals, including hazardous chemicals listed under Subchapter III of RCRA, as well as pesticides registered under the Federal Insecticide, Fungicide and Rodenticide Act.”

When neither the EPA nor the VANR commenced a civil or criminal action against Omya within 90 days, RCO filed an action in the United States District Court for the District of Vermont.² The complaint contained the same allegations that RCO had set forth in its NOI—namely, that Omya was in violation of RCRA's prohibition on open dumping and that Omya's disposal practices posed an “imminent and substantial endangerment to health or the environment.”

Several months after the action had been filed, Omya sought a solid waste disposal certification from the State of Vermont for its practice of disposing of tailings in its TMAs. While the certification process was ongoing, the state legislature enacted a law requiring that the certification be conditioned in part on Omya first financing and completing a study of the effects of its disposal practices on human health and the environment. Omya responded by hiring consultants to conduct the study and to produce a report (the “Report”), a process that ultimately took several years to complete.

In the interim, the parties began to engage in extensive motions practice, including filing motions for summary judgment. Pursuant to a stipulation, discovery was delayed until all then-pending motions with the court had been resolved. The District Court issued its first substantial ruling in June 2006, when, inter alia, it denied Omya's motion for summary judgment as to both the open dumping and endangerment claims and denied RCO's motion for partial summary judgment on its open dumping claim. Following the issuance of the court's order, RCO retained an expert, Dr. James S. Smith, who opined that “arsenic ... would be found in solution in the groundwater under the site.” Subsequently, RCO hired a consultant to obtain samples of groundwater from properties in the vicinity of the Plant and from directly underneath the Plant. The results of this sampling confirmed that arsenic was present in Omya's waste and that it had been released into the groundwater underneath the Plant at levels ranging from 8–12 parts per billion (“ppb”).

After obtaining the sampling results, RCO filed a second motion for partial summary judgment. RCO argued that the sampling results showed that Omya had violated 40 C.F.R. § 257.3–4, which prohibits waste disposal practices that contaminate underground drinking water sources with specific substances in excess of specific thresholds. Because § 257.3–4 was promulgated under § 6945, which is RCRA's prohibition of “open dumping,” a violation of § 257.3–4 is a violation of § 6945. See S. Road Assocs. v. Int'l Bus. Machines Corp., 216 F.3d 251, 256 (2d Cir.2000) (explaining that the “open dumping” regulations “operate as independent prohibitions of RCRA”). Appendix 1 to the “open dumping” regulations sets a Maximum Contaminant Level (“MCL”) of 50 ppb for arsenic in groundwater. See 40 C.F.R. § 257, App. 1 (2011). RCO also noted that the Safe Drinking Water Act (“SDWA”) sets forth an MCL for arsenic at a level of 10 ppb for community water systems. Recognizing that the permitted level of 50 ppb for arsenic in groundwater exceeded the 8–12 ppb of arsenic actually measured, RCO contended that the MCL of 50 ppb stated in Appendix I was outdated. It argued that Appendix I makes reference to, and its values are intended to mirror, the MCLs set forth in the SDWA. Since the SDWA MCL for arsenic in community water systems had been recently updated by the EPA to a maximum permitted level of 10 ppb, RCO argued that Omya was in violation of the open dumping prohibition by releasing arsenic at measured levels of 8–12 ppb.

On September...