Clarifying the Vermont Compost decision

August 16, 2008

By Michael Bernhardt

When issuing a jurisdictional opinion, the district coordinator must carefully consider the facts of each situation and then fairly and objectively determine whether the activity in question requires an Act 250 permit. Literally hundreds of these determinations are issued each year. All are subject to appeal to Vermont's Environmental Court and ultimately if appropriate to Vermont's Supreme Court. The jurisdictional opinion does not represent a final determination until all appeals have been heard and decided.

The statute places the obligation to make jurisdictional determinations with the coordinator based on the facts and the applicable law under Act 250 including 38 years of legal precedent. This represents a quasi-judicial determination and no other person or entity — not the district commission, not the Natural Resources Board, not even the Governor — can influence this determination.

The statute reads: "any person … may request a jurisdictional opinion." In the Vermont Compost case, Sean McVeigh, a state environmental enforcement officer, and Steve LaRosa, a neighbor to the Vermont Compost project, asked the district coordinator for the opinion and, once that occurs, it is the district coordinator's obligation to carefully consider the facts and make that determination.

In response to this request, the District 5 coordinator carefully gathered information relating to Vermont Compost; most of the information came from Vermont Compost's owner, Karl Hammer. Based upon this information, and after several months of careful review, the coordinator issued the opinion in January 2008 deciding that the Vermont Compost Company must apply for an Act 250 permit in order to comply with the law.

Vermont Compost has argued that the Agency of Agriculture considers the project to be a farm operation, and it is therefore exempt from Act 250. The coordinator's opinion holds however that Vermont Compost's commercial operation portion of its Montpelier activities is not "farming" under the specific statutory language of Act 250. Vermont Compost has appealed this decision, and now the environmental court, a neutral body, will decide the question based upon the facts and applicable law.

Subsequently, based on the coordinator's jurisdictional opinion, the Natural Resources Board issued an administrative order to Vermont Compost. The board took this enforcement action, when if became clear that Vermont Compost would not willingly seek an Act 250 permit for its operation.

The administrative order asserts (as the coordinator opinion states) that Vermont Compost is operating without a required Act 250 permit. The order then does what every order does in these situations — it tells Vermont Compost to stop operating until a Land Use Permit is obtained since that is what the law requires. Significantly, and probably outside the realm of public knowledge, the order clearly states that if Vermont Compost asks for a hearing in the Environmental Court contesting the order, the order will not take effect until after the case is decided by the court. This provides legal protection for Vermont Compost until the issue is resolved.

The Vermont Compost Company has not been "shut down," as has been widely reported in the press. Vermont Compost is operating today and, since Vermont Compost has chosen to appeal the order, the order will not take effect until the matter has been heard and decided by the Environmental Court.

Both appeals have been combined. The question that both the jurisdictional opinion and order together present is whether the Vermont Compost project needs an Act 250 permit based on its commercial activities. If the Environmental Court decides that no permit is required, then Vermont Compost can continue its commercial operations free from any Act 250 review or oversight. But if we can assume, for the moment, that the district coordinator's opinion is correct and the court agrees that Vermont Compost must apply for an Act 250 permit, then Vermont Compost will have to obtain an Act 250 permit. By the way, over 98 percent of all Act 250 applicants receive permits.

Many people believe that composting operations like Vermont Compost do a great service to our state; they turn organic wastes that would otherwise go to a landfill into a valuable product. It is unlikely that anyone would disagree with this viewpoint. However, as "beneficial" as composting is for Vermont (some Vermont Compost neighbors dispute the virtue of commercial composting in a residential area), should Vermont Compost be allowed to continue to operate without an Act 250 permit if one is legally required? What message would that convey to members of the public who rely on protections commonly afforded by Act 250? What message does that send to those who spend time and money to comply with Act 250?

There certainly may be a movement to exempt composting activities from Act 250 and other environmental regulations. Perhaps that movement will succeed in the future; however, the Act 250 program is obligated to apply the law as it is written today. The question of exemption was directly addressed by the Legislature this past winter and it chose not to exempt composting from Act 250.

Instead, it provided for a two-year moratorium on the need for certain existing composting operations to apply for an Act 250 permit, if they are being regulated by Agency of Natural Resources under its solid waste rules. The intent was clear. There has to be some state oversight in order to receive the benefit of this moratorium. It is my understanding that Vermont Compost is not regulated by the agency at its Montpelier site and therefore does not get the benefit of this two-year status quo period. This fact was made known to the Legislature when it adopted the moratorium law.

I think it fair to all that everyone, even the staunchest proponents of Act 250, those who historically have used every tool at their disposal to make certain applicants live up to every section of Act 250, that if we start an exemption here and an exemption there, that all Vermonters will be the losers in the long run.

Michael Bernhardt, Chairman

District 2 Environmental Commission

http://www.timesargus.com/apps/pbcs.dll/article?AID=/20080816/OPINION04/808160301/1024/OPINION04