Commercial composting? It's a hot topic for lawmakers to figure out

February 27, 2008
By Louis Porter VERMONT PRESS BUREAU

http://www.timesargus.com/apps/pbcs.dll/article?AID=/20080227/NEWS/353810657

MONTPELIER - Composting operations would no longer be subject to review under Act 250, the state's land use regulation, if a bill expected to come before the House this week becomes law.

The regulation of commercial composting has turned into a controversial issue in the state since a regulatory quagmire has engulfed Vermont Compost Co. of Montpelier and environmental regulators have come down on The Intervale Center of Burlington's compost operation during the past year.

The exemption from the additional expense and difficulty of getting Act 250 approval matters, supporters of the bill said. Composting companies should be encouraged because they make compost used by farmers across the state and they keep food waste out of landfills. But others worry about the loosening of environmental regulations, even if for a good purpose.

It is not entirely clear which - if either - of the two compost operations with high-profile regulatory cases would be exempt if the bill passes into law. That is because new laws usually do not apply retroactively and the Act 250 process has already begun in the Intervale case, and a recent ruling would require such approval for Vermont Compost as well.

The measure may well become law because the exemption for composting is nestled into a bill providing a regulatory break for wastewater treatment plants that has widespread general support, including among lawmakers, the administration of Gov. James Douglas, and many towns.

Anyone who has driven into Montpelier down upper Main Street has likely noticed Karl Hammer's Vermont Compost Co. operation, which includes chickens, mules, greenhouses, dogs, and mounds of composting food and animal waste that he works, sifts and sells as potting soil and other products to residents and farms.

Hammer was told in January by the District 5 Environmental Commission that a portion of his Montpelier site, and a site in East Montpelier where he makes compost from manure and bedding from the large Fairmont Farms dairy operation and other sources, require Act 250 permits.

But part of Hammer's operation is also a farm.

"The chickens are none of our business, they do their thing," said District 5 Coordinator Edward Stanak, who is based in Barre. However, more than half of the raw material used by Hammer there is not produced on the spot but comes instead from Fairmont and other places. That means the operation requires a land use permit under Act 250 because "the construction of improvements, and resultant land use, are for a commercial purpose" not an exempt farming purpose, according to the decision.

The East Montpelier site requires a land use permit because, although it is on property owned by Fairmont Farms Inc., Hammer has a contract with the farm to manage composting there.

That means "the compost product is not an agricultural product principally produced on the farm. It is a product produced by (Vermont Compost) from agricultural products purchased from Fairmont Farms Inc. for processing, along with the materials transported to the site from other farms and sources."

Hammer disagrees that the existence of the contract or other aspects of the operation make his compost facilities commercial, not agricultural. He has written back to Stanak asking for him to reconsider the case.

Hammer has made compost at the two sites for several years, operating under the belief he falls under the agricultural exemption to Act 250.

However, if it becomes law, the bill passed by the House Fish, Wildlife and Water Resources Committee late last week will exempt his operation even if the Act 250 appeals go against him, Hammer said.

"I think it addresses my problem," Hammer said.

Rep. Jon Anderson, D-Montpelier, a member of the committee, hopes so. He pushed for the compost exemption after learning of Hammer's regulatory issues.

"I have been up to Karl Hammer's property. I have been to the top of the compost pile," he said. "I view him as a small-business owner who is struggling. Let's stop arguing over whether Act 250 applies to composting and just say it doesn't."

Warren Coleman, an attorney for the Agency of Natural Resources, which would regulate compost facilities under the bill, agreed the bill might exempt Hammer. That is because Hammer has appealed the ruling that he should come under Act 250.

The Intervale, on the other hand, might not be exempted under the bill.

That is because the organization has not appealed the ruling that it must seek Act 250 jurisdiction and has started down the path to get a permit, Coleman said.

However, Coleman said he hopes the Senate will talk more about the composting exemption if the bill makes it over from the House.

"They took very, very limited testimony on this exemption," he said of the House. "It really needs a lot more vetting, a lot more discussion.

"This is not a small decision," Coleman added. "If you exempt it from Act 250 there will be certain land use criteria that will not be applicable. I don't think that discussion happened in House committee."

Rep. David Deen, D-Putney, chairman of the House Fish and Wildlife Committee, said the bill would not change Intervale's situation.

"If it were an Intervale bailout, the Intervale would be named in the bill," he said.

But composting should be encouraged and should not be subject to several layers of permitting. Instead the ANR should come up with new rules for large composting operations, as instructed in the bill.

"There may be some members who are concerned about the Intervale. That is not what we are about," he said.

Kit Perkins, director of the Intervale, said she has not looked closely at the bill yet. If the bill can help composting operations while protecting the environment she would support it, Perkins said.

"Composting is an excellent way of improving water quality," she said.

Until recently, when she decided she would not return to the company after this lawmaking session, Speaker of the House Gaye Symington, D-Jericho, was also the development director for the organization.

Symington said she was not involved in the compost exemption in the House bill.

"I am not an employee of the Intervale. Even when I was I was not directly involved in compost," she said. "It is an environmental organization. They are serious about making sure their net impact is positive."

House Agriculture Committee Chairman David Zuckerman, P-Burlington, farms on the Intervale site although he is not involved in the composting operation.

"I think a lot of people in the farming community are concerned that composting on farms may require an Act 250 permit if it is managed by a third party," he said.

Rep. Steve Adams, R-Hartland, is a member of the committee that passed the bill unanimously and he is minority leader in the House.

He was initially worried the bill was designed to help one or two specific companies. However, after being assured that those organizations already in the Act 250 process - like Intervale - would not be exempted he was satisfied and voted for the measure, he said.

"It concerned me that maybe we were trying to slip something through," he said. In the end "I voted for it because 98 percent of the bill contained good work done by the committee."

Adams is a supporter of the section of the bill that would amend a section of law passed last year requiring wastewater plants in the Lake Champlain watershed - that is the bulk of Vermont and virtually every town on the western half of the state - to produce less phosphorous pollution.

The Agency of Natural Resources, some Lake Champlain advocates and municipalities and chambers of commerce across Vermont have called for undoing those new requirements because of the expense and because they believe concentrating on nonpoint-source pollution will be more cost-effective.

"We think that is a better use of agency time and resources," Deen said. "We are hoping we are going to see more bang for the buck."

In addition to opening the way for going after "nonpoint-source" phosphorous pollution like runoff, the bill instructs the state to come up with ways of encouraging towns to keep the pollution from their plants from increasing.

But some leading environmental groups in the state said the bill will, in fact, endanger Lake Champlain.

Anthony Iarrapino of the Conservation Law Foundation said that section of the bill makes a lie out of the title, "An Act Relating to the Clean Up of Lake Champlain."

"It is an unwillingness to confront the true cost undoing the significant damage we have done and continue to do to this essential natural resource which also happens to be one of the state's economic engines," he said.