RE: Donna Caplan, Declaratory Ruling #252, Findings of Fact, Conclusions of Law, and Order May 18, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Donna Caplan Declaratory Ruling #252 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision, dated May 19, 1994, pertains to a petition for a declaratory ruling filed by Donna Caplan (the Petitioner) concerning whether an Act 250 permit is required pursuant to 10 V.S.A. chapter 151 (Act 250) for the land application of septage by Fowler Septic Service, Inc. (Fowler). For the reasons explained below, the Board rules that an Act 250 permit is not required prior to the land application of septage by Fowler. I. BACKGROUND On April 10, 1991, the District #5 Environmental Coordinator issued Advisory Opinion #5-90-27 (Revised) concerning whether the land application of septage was a development under 10 V.S.A. § 6001(3). The District Coordinator concluded that such activity did not constitute "development" and, therefore, was not subject to Act 250 jurisdiction. On May 8, 1991, the Petitioner appealed Advisory Opinion #5-90-27 (Revised) to the Executive Officer of the Environmental Board. On June 24, 1991, the Executive Officer of the Environmental Board issued Advisory Opinion #EO-91-235. The Executive Officer concurred with the District Coordinator's advisory opinion that an Act 250 permit is not required for the land application of domestic septage because it does not constitute development under 10 V.S.A. § 6001(3) or Board Rule 2(A). On July 22, 1991, the Petitioner appealed from Advisory Opinion #EO-91-235 and petitioned for a declaratory ruling. On August 20, 1991, Environmental Board Chair Elizabeth Courtney convened a prehearing conference and a Prehearing Conference Report and Order was issued on September 4, 1991. The Board Chair ordered that the declaratory ruling proceeding be stayed pending the outcome of an appeal to the Waste Facility Panel of Fowler's application to the Agency of Natural Resources (ANR) for an interim certification for the land application of domestic septage. On March 20, 1992, the Waste Facility Panel issued its decision in Re: Fowler Septic Service, Inc., #I9022-WFP, Findings of Fact, Conclusions of Law, and Order (March 20, 1992). The Waste Facility Panel granted interim certification #I9022-WFP (the Certification) to Fowler for the land application of domestic septage on Fowler's property in Plainfield. On July 13, 1992, the Petitioner requested that the stay issued on August 20, 1991 be lifted to permit this proceeding to go forward. On August 5, 1993, the Board issued a Statement of Issue and Stipulated Facts based upon the parties' agreement that this proceeding could be decided without an evidentiary hearing. The Board stated that it would consider those facts in the Certification that are descriptive of Fowler's activity at its disposal location in Plainfield for the sole purpose of determining whether there is Act 250 jurisdiction. The Statement of Issue and Stipulated Facts incorporates the Certification. On August 9, 1993, the Petitioner filed a response to the Statement of Issue and Stipulated Facts. On August 13, 1993, Fowler filed a response to the Statement of Issue and Stipulated Facts and the Petitioner's August 9, 1993 response. As a result, both the Petitioner and Fowler agreed that this proceeding could be decided based upon the Statement of Issue and Stipulated Facts, the Petitioner's August 9, 1993 response, and Fowler's August 13, 1993 response. On September 24, 1993, the parties filed memoranda of law on the issue of jurisdiction. On October 20, 1993, the Board convened an oral argument in this matter with the following parties participating: The Petitioner by Philip H. White, Esq. Fowler Septic Services, Inc. by James S. Brock, Esq. After hearing oral argument, the Board recessed the matter pending deliberation. On January 1, 1994, Board member Jean Richardson resigned from the Board. On February 17, 1994, Board Chair Courtney designated Board member Steve E. Wright as Acting Chair in this proceeding. On February 22, 1994, the Vermont State Senate rejected Board Chair Courtney and Board members Terry Ehrich and Ferdinand Bongartz for confirmation. The five remaining Board members that heard oral argument in this proceeding deliberated on this matter on May 4, 1994. On that date, the Board declared the record complete and adjourned the hearing. This matter is now ready for decision. II. ISSUES 1. Whether the land application of domestic septage constitutes development as the construction of improvements for a commercial purpose pursuant to 10 V.S.A. § 6001(3), and Board Rules 2(A)(2) and 2(D). 2. Whether the land application of domestic septage and its injection or incorporation into the ground where the field's slope exceeds five percent constitutes development as the construction of improvements for a commercial purpose pursuant to 10 V.S.A. § 6001(3), and Board Rules 2(A)(2) and 2(D). 3. Whether the land application of domestic septage and the installation of groundwater monitoring wells constitutes development as the construction of improvements for a commercial purpose pursuant to 10 V.S.A. § 6001(3), and Board Rules 2(A)(2) and 2(D). III. FINDINGS OF FACT 1. The Certification authorizes Fowler to land apply septage to two separate fields, identified therein as fields 60F and 60H. The Petitioner's property is located to the southwest of Field 60F and is adjacent to the southwest corner of that field. Field 60H is north of Field 60F and is not adjacent to the Petitioner's property. 2. Fowler usually services six to seven hundred domestic septage systems per year. This requires disposal of approximately six to eight hundred thousand gallons of septage annually. At the present time Fowler is disposing of all septage at the Essex Junction or Burlington wastewater treatment plants. 3. Septage will either be applied to Fields 60F and 60H or it will be disposed of at the Essex Junction or South Burlington wastewater treatment plants. Land application is permitted for a seven-month period during late spring, summer and fall. Septage will be hauled to a wastewater treatment plant during the remaining five months and at any time when field conditions do not allow for land application. 4. If septage is improperly applied to agricultural land, there is potential for bacteria, viruses, metals and other contaminants in the septage to affect human health, either through direct contact or by indirect means, such as contamination of surface or groundwater, crop uptake or ingestion by animals used for food. Septage may also create odors and attract vectors. There is also the potential for nutrients in the septage to contaminate groundwater and surface water. 5. Under the Certification, only domestic septage may be land applied. Septage generated by domestic customers could include wastes from an auto body shop operated at a residential location or other small business operations. Such business operations may generate septage containing greater amounts of heavy metals and other potentially harmful substances. 6. The Certification requires that prior to land application, the septage be stabilized to reduce the pathogen content by adding 50 pounds of dehydrated lime to every 1,000 gallons of septage pumped. Fowler will put lime into the truck after septage has been pumped and mixing will occur in the truck during transport to the land application site. 7. Fowler pumps sewage into a 2,500 gallon truck. Sewage is spread on the fields directly from the truck by means of a spreader bar. 8. The fields have a slope of less than five percent with the exception of certain portions of Field 60H where the slope exceeds five percent. The Certification requires that septage spread on areas where the slope exceeds five percent be injected or incorporated within 48 hours of spreading. 9. Nineteen soil borings to a depth of three feet were made on the fields. Soil borings revealed that there is no bedrock within 36 inches of the surface. Two of the borings from Field 60F showed mottling above 36 inches. Mottling in soil indicates the presence of seasonal high groundwater at the depth of the mottling. Spreading in the areas on Field 60F where mottling occurred above 36 inches may take place only in the summer when groundwater levels are usually at their lowest. 10. The Certification does not require that the septage be screened prior to spreading. If septage is unscreened, plastic and other non-biodegradable objects may be spread on the fields. IV. CONCLUSIONS OF LAW 10 V.S.A. § 6001(3) defines "development," in pertinent part, as the construction of improvements on a tract or tracts of land for any commercial or industrial purpose. Board Rule 2(A)(2) similarly defines development. Board Rule 2(D) defines "construction of improvements," in pertinent part, as: Any physical action on a project site which initiates development for any purpose enumerated in Rule 2(A). Black's Law Dictionary defines "construct" as: To build; erect; put together; make ready for use." "Construction" is defined as: The creation of something new, as distinguished from the repair or improvement of something already existing. "Improvement" is defined as: A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further proposes. Construction of improvements is a deliberately limited term which cannot be extended to include any activity that initiates any use of the land. In Re Agency of Administration, 141 Vt. 68 (1982). Rather, land development triggers Act 250 jurisdiction only when such activity is "the first step in a proven development project." Id. at 93. In Re: Town of Windsor, Declaratory Ruling #255 (July 30, 1992), the Board held that there is no physical change or alteration when sludge is placed on land. Accordingly, the Board concludes that the land application of septage does not constitute either "construction" or "improvement" under Board Rule 2(D). Therefore, the land application of septage is not development as defined by 10 V.S.A. § 6001(3) or Board Rule 2(A)(2). Likewise, the Board also concludes that the installation of groundwater monitoring wells or the injection or incorporation of septage into the ground pursuant to the Certification is not the construction of improvements. Both activities fail to rise to the level of a first step in a proven development project. The construction of monitoring wells and the injection or incorporation of septage into the ground does not constitute the construction of improvements under Board Rule 2(D) and, therefore, is not development as defined by 10 V.S.A. § 6001(3) and Board Rule 2(A)(2). V. ORDER An Act 250 permit is not required for the spreading of septage by Folwer pursuant to the Certification. Dated at Montpelier, Vermont, this 18th day of May, 1994. ENVIRONMENTAL BOARD \s\s\Steve E. Wright Steve E. Wright, Acting Chair Lixi Fortna Arthur Gibb Samuel Lloyd William Martinez c:\decision\dr252.cap (d3)