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There's Something Rotten... in Vermont 

Fair Game

Published July 16, 2008 at 5:48 a.m.

Fair Game is Seven Days’ weekly political column.

Last week, "Fair Game" detailed negotiations between the Intervale Center and the administration of Gov. Jim Douglas that, in the end, could severely restrict farming and gardening at the 179-acre site.

As we went to press, news broke of another Vermont composter that's come under the state's not-so-green regulatory thumb.

Montpelier-based Vermont Compost Company and owner Karl Hammer face an $18,000 fine for not having an Act 250 permit. In an enforcement order issued June 27, officials with the Natural Resources Board ruled that Hammer is bringing in too much waste from off site and processing it at his farm, thereby necessitating a permit.

The order, which must be approved by a judge, requires that Hammer remove buildings and compost from the property - a hefty and costly chore. If the NRB order is approved, Hammer would have to shut down operations, even if he applies for an Act 250 permit.

Hammer believes he doesn't need the permit because much of his composting is connected to his farm, and Vermont farms are exempt from Act 250.

Shutting down Hammer, who has 10 employees, would have a huge ripple effect on agriculture in Vermont. Vermont Compost's customer list is a who's who of sustainable ag in Vermont and the country. Many of them are featured in the current issue of Vermont Life, the state-supported quarterly. The magazine's summer issue, titled "Our Food, Our Farmers," profiles 15 people who have turned Vermont into a food "Mecca."

Food writer Marialisa Calta frames the story this way: "Vermont is in the midst of a culinary and agricultural awakening. A spectrum of Vermonters - consumers, food producers, policymakers - are making a connection between food and land, food and community, food and taste and health."

I'm not so sure "policymakers" have made that connection - yet.

Meanwhile, sustainability-minded folks are asking: What the hell is going on? This is Vermont. Farming is so important in this state that the Goddess of Agriculture adorns our capitol's golden dome. Yet two of the state's three largest composters are running the regulatory gauntlet.

Who's the third? Vermont Natural Ag Products in Middlebury run by Bob Foster, the governor's brother-in-law.

Is Foster facing scrutiny? Not at this time. "Fair Game" has learned that in 2003, the local Act 250 coordinator ruled that changes to Foster's composting operation - the construction of a 100' X 70' building and an upgrade of its bagging operation - were exempt from Act 250. The explanation: Between 55 and 60 percent of the materials come from the Fosters' farm. The remainder originates off-site, including chicken waste from Vermont Egg Farm in Highgate.

State officials insist they don't have it out for composters who aren't related to the governor. In the case of the Intervale, the state's Department of Historic Preservation says it's just trying to protect potential archeological sites. The Agency of Natural Resources, which is also involved in the negotiations led by Attorney General Bill Sorrell, is threatening Intervale with fines and costly fixes that it says are needed to correct past environmental damage - despite recent legislation signed by Douglas that was designed to delay such harsh regulatory actions against composters.

Jason Gibbs, Douglas' top spokesman, told "Fair Game:" "We've been very clear that we want the Intervale to both succeed and comply with the law. It's the same policy that is applied to every employer."

But as the chart on p.13A (see sidebar) suggests, not everyone is treated equally under the law. For instance, there's a huge contrast between the regulatory experiences of the Vermont Compost Company and OMYA, the Proctor-based multinational that processes marble into calcium carbonate.

Vermont Compost's latest troubles started on March 12, when one of Hammer's neighbors - Darcie Johnston - complained to Douglas about health hazards she believed were associated with the farm, which is surrounded by homes on upper Main Street.

In her email to Douglas, Johnston states, without offering much in the way of hard evidence, that "many" of Hammer's neighbors "have seen increased crows, have heard about the rat problem and question if the water supply in the area is being protected by run-off and nitrogen."

Less than a week later, on March 19, Douglas wrote a letter, asking his top environmental official - Agency of Natural Resources Secretary George Crombie - to look into it.

Crombie added his own handwritten instructions to Douglas' letter and forwarded it to the head of the Department of Environmental Commission, Laura Pelosi. Crombie told Pelosi to coordinate a response between the Agency of Agriculture, Department of Health and DEC. That was March 25.

On April 7 a state entomologist issued a report claiming neighbors were in no danger from the farm or its compost. As for the rats, "There is no evidence to support that the populations are excessive. There is plenty of vegetable matter for them to consume and no need to forage away from the facility."

At that point, Hammer thought he was in the clear. Then, on June 27, came the enforcement order from the Natural Resources Board - chaired by Peter Young who is the spouse of longtime Douglas legal aide Suzanne Young - which has put the future of the Vermont Compost Company in jeopardy.

John Hasen, the NRB's lawyer, declined to comment on the specifics of the order. He did say he wants the state's concerns taken seriously, and didn't want to wait for the Act 250 appeal process, which could take a year or more, to delay action.

Now Hammer is waiting to hear whether he has to shut down his operation or spend thousands more to fight the NRB and the state. Before the NRB decision, he had thought the local Act 250 office would reconsider its original opinion, as he had asked them to.

"Why they took this action before the appeals process just seems extraordinary to me," said Hammer. "They never asked to meet."

Is there more to this mess than meets the eye? For one thing, Johnston is no ordinary neighbor. She's a top-notch GOP fundraiser who has raised big bucks for Douglas, Lt. Gov. Brian Dubie and others over the years. When you have a problem that needs fixing, there's nothing like having friends in high places, right? Especially in an election year when every dollar and every vote counts.

That seems to work for OMYA, whose neighbors have been arguing for years that the waste from its Florence operations - 150,000 tons a year dumped into an unlined landfill - leach arsenic, the chemical AEEA, and manganese into water wells. For more than five years they have urged state officials to force OMYA to abide by state regulations and clean up its act. In response, according to internal documents, OMYA has been negotiating with ANR officials to avoid enforcement actions.

What gives? Is it the campaign dollars the company's contributed to keep Douglas in office - nearly $5000 over the past few elections? Is it OMYA's 250 jobs?

One former DEC commissioner is flabbergasted.

"The state's environmental laws are designed to punish egregious actors who simply refuse to comply, and OMYA is just such a case," said Pat Parenteau, who now runs the Vermont Law School clinic representing OMYA's neighbors. "The state should be bending over backwards to work with composters as they provide a valuable resource in our food supply. It just makes you wonder - what kind of influence does OMYA have? Who is the Douglas administration listening to?"

Good question.

The Facts:

State officials moved swiftly to enforce laws against locally owned Vermont Compost Co. Meanwhile, the state has stood by passively for 5 years while multinational mining company OMYA, which operates an unlined landfill that takes in 150,000 tons of waste per year, contaminated groundwater and operated without the proper permits. Is the state playing favorites in environmental enforcement? You decide.


VT Compost - An approximately 5-acre compost finishing operation.

OMYA - An unlined solid waste landfill.

Act 250 permit required?

VT Compost - Yes. A ruling was issued in January.

OMYA - Yes.

Is the operation Act 250 compliant?:

VT Compost - No. An enforcement order was issued June 27.

OMYA - No. The District Environmental Commission suspended hearings while the landfill continues to operate without a required Act 250 permit amendment.

Are ANR permits required that have not been obtained?:

VT Compost - No. ANR determined the facility to be exempt from regulation under solid waste law.

OMYA - Yes. The facility required a solid waste facility certification and an indirect discharge permit prior to commencing construction and operation of its unlined landfill.

Does the operation involve anything hazardous to the environment or public health?:

VT Compost - No. Only composted manure and food waste residuals.

OMYA - Yes. The waste contains arsenic, a hazardous material and carcinogen; AEEA, a suspected carcinogen; and manganese, a public health concern in high concentrations.

Has groundwater testing been per-formed and have impacts been shown from facility operation?:

VT Compost - Yes. No impacts were detected.

OMYA - Yes. Local drinking water well tests show contamination of arsenic and manganese in violation of state standards.

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About The Author

Shay Totten

Shay Totten

Shay Totten wrote "Fair Game," a weekly political column, from April 2008-December 2011.


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