RE: Vermont Egg Farms, Inc., Declaratory Ruling #317, Findings of Fact, Conclusions of Law and Order (June 14, 1996) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. § 6001 et seq. Re: Vermont Egg Farms, Inc. Declaratory Ruling #317 FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER In this decision, the Environmental Board ("Board") concludes that Vermont Egg Farms, Inc's proposed egg producing facility in the Town of Highgate ("Project") is not subject to 10 V.S.A. § 6001 et seq. ("Act 250"). I. BACKGROUND On December 20, 1995, the District #6 Environmental Commission Coordinator ("District Coordinator") issued a Jurisdictional Opinion in the form of a Project Review Sheet ("Jurisdictional Opinion") in which he determined that construction of the Project does not require an Act 250 permit. On January 18, 1996, John and Lorri Tremblay, Alan and Jeannine Chadwick, Donald and Frances Besette, Brian Besette, Patrick and Kay Laroche, Bernard and Susan Rainville, Henry and Raymonde Choiniere, Bernard and Arlene Trahan, Jeff Trahan, George and Patricia Britch, Steve Tremblay, Cindy Shedrick, Paul Tremblay, Marc and Ann Dandurand, Frederick and Maryann Greenia, Jacques Rainville and Concerned Citizens of Franklin County ("Petitioners") filed a petition for declaratory ruling with the Board. FN1 The Petitioners appeal the Jurisdictional Opinion and contend that the Project is subject to Act 250. On February 26, 1996, Board Chair John T. Ewing convened a prehearing conference. At the prehearing conference, the Petitioners and Rural Vermont each filed a petition for party status. On March 7, 1996, Chair Ewing issued a Prehearing Conference Report and Order ("Prehearing Order") which is incorporated herein by reference. No party objected to the Prehearing Order. On March 13, 1996, Vermont Egg Farms, Inc. ("VEF") and the Petitioners each filed a legal memorandum on the preliminary issue of party status. On March 14, 1996, Chair Ewing issued a Chair's Preliminary Ruling which granted party status to the Petitioners and Rural Vermont. No party objected to the Chair's Preliminary Ruling and it became final on March 21, 1996. The Chair's Preliminary Ruling is incorporated herein by reference. The parties filed prefiled testimony, lists of witnesses and exhibits, proposed findings of fact and conclusions of law, and evidentiary objections during March, April, and May, 1996. On May 14, 1996, Chair Ewing convened a second prehearing conference by telephone with the following parties participating: the Petitioners by William E. Roper, Esq.; VEF by Charles F. Storrow, Esq.; and Rural Vermont by Ellen H. Taggart. On May 15, 1996, the Board convened a hearing in the Town of Swanton with the following parties participating: the Petitioners by William E. Roper, Esq.; VEF by Charles F. Storrow, Esq.; Rural Vermont by Ellen H. Taggart; and Vermont Department of Agriculture by Commissioner Leon Graves and Amy Jestes Llewellyn. After taking a site visit, the Board returned to the hearing room, placed its observations on the record, and heard testimony and arguments from the parties. The Board conducted deliberative sessions on May 15, 1996 and June 12, 1996. This matter is now ready for decision. To the extent any proposed findings of fact and conclusions of law are included below, they are granted; otherwise, they are denied. See Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983). II. ISSUE The issue before the Board is: Whether, pursuant to 10 V.S.A. § 6001(22) (1993), the Project constitutes "farming" such that it is excepted from the definition of "development" contained in 10 V.S.A. § 6001(3) (1993) and Environmental Board Rule ("EBR") 2(A)(2). III. FINDINGS OF FACT 1. The Project includes five laying barns, two pullet barns, an egg washing and grading station, a feed mill, a manager's residence, and two waste water disposal systems. VEF plans to keep a total of 700,000 chickens (500,000 laying hens and 200,000 pullet hens) at the Project. 2. VEF proposes to construct the Project on approximately 22 acres of a larger 150 acre tract, the former Brian Rowell farm, on Boucher Road in the Town of Highgate ("Project Site"). The remaining land, which is mostly cropland, will continue to be cultivated with corn and hay in rotation. Additionally, the remaining land may be used for disposal of some of the chicken manure. 3. The Project Site's elevation is below 2,500 feet. 4. The five laying barns will each be a two-story building with a dimension of 55 feet x 506 feet. Each laying barn will house a flock of 100,000 laying hens. The two pullet barns will each be a two-story building with a dimension of 55 feet x 415 feet. Each pullet barn will house a flock of 100,000 pullet hens. 5. The laying barns will be connected by a corridor leading to the egg grading and washing facility. The corridor will contain separate rooms for electrical, mechanical, refrigeration, and water distribution equipment. The egg grading and washing facility building will be 95 feet x 120 feet. 6. The laying hens will be kept on the second floor of the laying barns in six rows of cages, with each row having four tiers of cages. An automatic feeder will deliver feed to each cage several times per day. An automatic "nipple" drinking system will allow the hens to drink water at will. 7. The manure from the hens will fall on a "dropping board" underneath each tier of cages which will be automatically scraped every day. From the dropping board, the manure will fall down into the first floor of the barn. Chicken manure is 77% liquid; each barn's ventilation system will dry the manure to a level of 85% dry matter. Each flock of 100,000 laying hens will generate approximately 1,000 tons of manure (85% dry matter) per year. The manure will accumulate in the barns for 1-2 years before being removed. 8. When the manure is removed from the barns, it will be loaded into manure spreaders or trucks for transport to locations for land application as fertilizer or for composting into a retail product. 9. Brian Rowell will dispose of the manure generated by the first 100,000 laying hens of the Project. Between 700 and 1,400 acres of cropland are required to properly dispose of the manure from 100,000 laying hens. Mr. Rowell intends to spread the manure on his own land in the Town of Highgate (160 tillable acres) and the Town of Sheldon (250 tillable acres) as well as on land he has leased from VEF (130-135 acres). Mr. Rowell also will sell the manure to area farmers for their use as fertilizer. VEF does not have specific plans for management of the manure generated by the remainder of the chickens. 10. A conveyor system will transport the eggs to the egg grading and washing facility where they will be graded, washed, and packed for shipment to customers. This facility will only be used to grade, wash, and pack eggs produced at the Project. VEF will dispose of the wash water through an in-ground leachfield type system; VEF has applied for a permit for this system from the Vermont Department of Environmental Conservation. The egg grading and washing facility also will have a restroom that will utilize a small septic system. The Department of Environmental Conservation has issued a permit for this septic system. 11. Each laying hen will produce approximately 300 eggs per year. The Project will generate 12,500,000 dozens of eggs per year (150,000,000 eggs) with a wholesale value of approximately $10,000,000. 12. The Project will require 23,500 metric tons of feed per year (20,000 tons for the 500,000 laying hens and 3,500 tons for the 200,000 pullet hens). 13. The Project includes a feed mill where VEF will process its own feed from raw ingredients. VEF's feed mill will not be used to process feed for any other facility. The feed is a blend of corn meal, soya, wheat, and barley. 14. VEF will employ the equivalent of seven to nine full time employees. The Project's manager will reside at the farm. 15. VEF will raise flocks of 100,000 even-aged chickens on a staggered basis. VEF will purchase day old chicks and raise them into pullet hens in the pullet barns. At approximately 19 weeks of age, each flock of 100,000 pullet hens will be moved to a laying barn. The laying hens will produce eggs for approximately one year, after which they will be sent to a slaughterhouse and a new flock will be put into the laying barn. The laying barns will be empty for one to two weeks while a flock is being replaced; during that time, VEF's employees will sanitize the laying barns. 16. Producing eggs from even-age flocks housed in five laying barns will allow VEF to produce eggs of different sizes and quality on a continuous basis. 17. The laying hens will have a mortality rate of approximately 6% per year. The dead birds will be stored in a freezer and picked up by a rendering service. 18. VEF's proposed animal husbandry practices are consistent with those used by other major egg production facilities in Vermont. 19. The Project is located within 300 feet of an unnamed stream which leads to the nearby Rock River. The Rock River empties into Missiquoi Bay in Lake Champlain. Chicken manure is high in phosphorus and has the potential for adverse water quality impacts if not managed properly. 20. The Project will be subject to agricultural nonpoint source pollution reduction regulation by the Department of Agriculture, Food and Markets' Accepted Agricultural Practice Rules. The rules require management of manure in a way that does not cause an increase in the agricultural wastes being discharged into waters of the State of Vermont. 21. VEF will submit a plan for manure disposal to the Commissioner of Agriculture, Food, and Markets prior to commencing operations to ensure that its manure disposal plan will comply with the Accepted Agricultural Practice Rules. 22. The Project will be the largest egg production facility in the State of Vermont. Vermont has three major existing egg production facilities. The two largest existing facilities have 75,000 chickens each (50,000 layer hens and 25,000 pullets). 23. The Project will utilize approximately 41,500 gallons of water per day (32,000 gallons per day for the 500,000 layers, 7,000 gallons per day for the 200,000 pullets, 2,300 gallons per day for the grading and washing station, and 200 gallons per day for the restrooms). Water is in short supply in the Project area. 24. The Project will require an estimated average of 42 tractor trailer trucks per week to deliver feed, haul eggs, and remove manure (3 trucks per day for feed, 2 trucks per day for eggs, and 1 per day truck for manure). After the feed mill is constructed and operating, the Project may generate less truck traffic because feed deliveries will decrease. 25. Boucher Road is a class 4 road which connects to Tarte Road, a class 3 road. The traffic generated by the Project may cause increased road maintenance and repair costs for the Town of Highgate. 26. The Project likely will generate odor, flies, noise, and dust. Additionally, the Project is a potential source of disease. 27. The trend in agriculture, in the State of Vermont and in the nation, is toward an increase in farm sizes through greater concentration and consolidation. IV. CONCLUSIONS OF LAW Act 250 requires that a land use permit be obtained prior to commencing construction on a development or prior to commencement of development. 10 V.S.A. § 6081(a) (1993). 10 V.S.A. § 6001(3) (Supp. 1995) defines "development" for purposes of Act 250 jurisdiction, stating in part: "Development" means the construction of improvements on a tract or tracts of land, owned or controlled by a person, involving more than 10 acres of land within a radius of five miles of any point on any involved land, for commercial or industrial purposes. "Development" shall also mean the construction of improvements for commercial or industrial purposes on more than one acre of land within a municipality which has not adopted permanent zoning and subdivision bylaws. . . . The word "development" shall not include construction for farming, logging or forestry purposes below the elevation of 2500 feet. (emphasis added). EBR 2(A)(2) provides that development means: The construction of improvements for any commercial or industrial purpose, including commercial dwellings, which is located on a tract or tracts of land of more than one acre owned or controlled by a person. In municipalities with both permanent zoning and subdivision bylaws, this jurisdiction shall apply only if the tract or tracts of involved land is more than ten acres unless the municipality in which the proposed project is located has elected by ordinance, adopted under chapter 59 of Title 24, to have jurisdiction apply to development on more than one acre of land. This jurisdiction does not apply to construction for farming, logging or forestry purposes below the elevation of 2500 feet. In determining the amount of involved land, the entire tract or tracts of involved land owned or controlled by a person will be used. (emphasis added). 10 V.S.A. § 6001(22) (1993) defines "Farming" as: (A) the cultivation or other use of land for growing food, fiber, Christmas trees, maple sap, or horticultural and orchard crops; or (B) the raising, feeding or management of livestock, poultry, equines, fish or bees; or (C) the operation of greenhouses; or (D) the production of maple syrup; or (E) the on-site storage, preparation and sale of agricultural products principally produced on a farm; or (F) the on-site production of fuel or power from agricultural products or wastes produced on the farm. (emphasis added). In construing Act 250, the Board's goal is to effect the intent of the legislature. See Bisson v. Ward, 160 Vt. 343, 348 (1993). The Board presumes that the legislature intended the plain meaning of the statutory language. Id. If the meaning of the statute is plain on its face, the Board enforces the statute according to its express terms. See Burlington Electric Dept. v. Vermont Dept. of Taxes, 154 Vt. 332, 335-36 (1990). If the statutory language is unclear or ambiguous, the Board may consider the legislative history of Act 250 in order to ascertain the intent of the legislature. See Holmberg v. Brent, 161 Vt. 153, 155 (1993). In this case, the Board concludes that Act 250's definition of "farming" is plain on its face. 10 V.S.A. § 6001(22) (1993) defines farming, in part, as "the raising, feeding or management of . . . poultry" and "the on-site storage, preparation and sale of agriclutural products principally produced on a farm." VEF will be raising, feeding and managing chickens for the purpose of producing eggs. Additionally, VEF will be storing and preparing the eggs for sale by grading, washing, and packing the eggs. Accordingly, based on the plain language of the definition of "farming," VEF's Project constitutes "farming" under Act 250. Because VEF's Project is "farming" which is below the elevation of 2500 feet, the Project is excepted from the definition of "development" contained in 10 V.S.A. § 6001(3) (1993) and EBR 2(A)(2). Therefore, the Project does not require an Act 250 permit. 10 V.S.A. § 6081(a) (1993). Even though the Project does not require an Act 250 permit, its size and scope are such that it will cause numerous environmental impacts. Because the trend in agriculture is toward larger and more concentrated farms, the Board believes that the impacts of such farms should be subject to regulatory review. However, as noted above, the Board concludes that it does not have jurisdiction to review the impacts of VEF's Project. V. ORDER An Act 250 permit is not required for VEF's Project in the Town of Highgate. Dated at Montpelier, Vermont this 14th day of June, 1996. ENVIRONMENTAL BOARD /s/John T. Ewing John T. Ewing, Chair Arthur Gibb Marcy Harding Samuel Lloyd William Martinez Rebecca M. Nawrath Robert Opel Anthony Thompson FN1 Jacques Rainville was not among the Petitioners in the petition for declaratory ruling. However, he was included in the Petitioners' petition for party status. (SMC1)c:\wpdocs\orders\vtegg.ord