The following is an article from www.vtdigger.org
By Emma Cotton
June 21, 2023, 7:45 pm
Jon Grovemen, policy and water program director with the Vermont Natural Resources Council, called a state agency’s argument against the permit “legally wrong, and really, irrelevant.”
The Conservation Law Foundation and the Vermont Natural Resources Council have joined a lawsuit appealing the Agency of Natural Resource’s decision not to seek a federal permit for a drain at the only landfill in the state.
Two years ago, officials discovered that an underdrain carrying groundwater away from Casella Waste Systems’ landfill in Coventry contained pollutants, such as PFAS, arsenic and cadmium. The groundwater comes from below the landfill’s double liner system, and in the past, officials have suggested that the contamination could be coming from an old, unlined section of the landfill.
The drain funnels between 4,000 and 13,000 gallons of groundwater per day from beneath the landfill into a wetland complex adjacent to the Black River. The river flows into Lake Memphremagog, a drinking water source for more than 175,000 Canadians.
In April 2022, the grassroots activist group Don’t Undermine Memphremagog’s Purity, or DUMP, petitioned the secretary of the Agency of Natural Resources, Julie Moore, to decide whether the drain needed a National Pollutant Discharge Elimination System, or NPDES, permit.
The Agency of Natural Resources administers the Clean Water Act in Vermont, giving the agency authority to decide whether the drain needs a permit.
According to the federal Environmental Protection Agency, the Clean Water Act prohibits pollutants from being discharged from a “point source” — a pipe or other identifiable, stationary outlet — into water of the United States without a NPDES permit.
In May 2023, Moore issued a ruling stating that the drain does not need a NPDES permit. The state has its own plan and permitting process that will mitigate the pollution coming from the drain, she argued.
“The pollutants are already subject to monitoring and treatment pursuant to a (Solid Waste Management Program) certification amendment, achieving the same environmentally protective functions that would be accomplished by a system covered by a discharge permit,” Moore’s ruling stated. “Therefore, the issuance of a discharge permit for (the underdrain in question) would be duplicative and unnecessary.”
Members of DUMP appealed Moore’s ruling, sending the matter to the Vermont Superior Court’s Environmental Division. On Wednesday, the Vermont Natural Resources Council and the Conservation Law Foundation filed a motion to intervene, asking the court to let them join the case in support of DUMP’s arguments.
Jon Grovemen, policy and water program director with the Vermont Natural Resources Council, called the agency’s argument “legally wrong, and really, irrelevant.”
“Federal permits have different weights and processes than state permits,” he said. “Under federal permits, you have to have certain conditions to control the discharge, and federal permits are not only enforceable by the state, but there are citizens’ enforcement rights with federal permits.”
By using the state permitting process, the agency is avoiding “the more stringent controls with water discharges of the Clean Water Act, and they’re basically taking away the right of citizens to enforce the permit,” he said.
In their motion, the organizations state that the NPDES permit “would better protect members’ interests in these waters” because citizens could enforce the limits, which would be tailored to the drain’s specific discharges.
The case would set precedent in Vermont that could impact other cases, according to Groveman. A Vermont court has never before decided whether a NPDES permit is necessary.
“This one would be the first,” he said.
Mason Overstreet, a staff attorney for the Conservation Law Foundation, pointed to what he considered a flaw in the Agency of Natural Resources’ ruling. The state’s pending plan is to use a treatment system that would remove PFAS from leachate, the liquid effluent that comes from rain and liquid in trash collecting at the bottom of the landfill, he said. The liquid from the drain would be collected and sent through the same system. But that project is still being permitted and has not yet been built.
According to Overstreet, the Agency of Natural Resources argued against pursuing the federal permit because the state treatment facility obviates the need to do so.
“That’s not the case and runs completely afoul of how the Clean Water Act should be implemented,” he said. “It’s actually apples and oranges.”
A spokesperson for the Agency of Natural Resources said Moore was not available to comment on Wednesday and referred a reporter to the ruling. The permit “would address pollutants in the underdrain, providing for environmentally protective functions. An additional(NPDES) discharge permit would be redundant and would emphasize form over substance,” said Stephanie Brackin, communications coordinator for the agency.
Ed Stanak, a member of DUMP’s advisory board, said he was grateful to the two environmental organizations for joining the suit.
“It’s very much welcome assistance. DUMP is the epitome of a grassroots organization,” he said. “(It’s) mostly folks up in the Northeast Kingdom trying to do it themselves, and struggling to have the regulatory system in Vermont respond to a host of issues associated with the industrial land use up there.”
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