RE: Kelly Green Recycling Facility, Declaratory Ruling #293, Findings of Fact, Conclusions of Law, and Order August 24, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 RE: Kelly Green Recycling Facility Declaratory Ruling by Jonathan L. Springer, Esq. #293 The Windsor House 54 Main Street, Room 302 P.O.Box 245 Windsor, VT 05089-0245 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision pertains to whether a land use permit is required under 10 V.S.A. Chapter 151 (Act 250) for the use of between 4,000 and 5,000 square feet in the former Windsor, Vermont Goodyear plant (the Plant) as a collection and transfer site for household hazardous waste (the Project). Kelly Green Environmental Services (Kelly Green) will own and operate the Project. As is explained below, the Board concludes that the Project is not a substantial change to a pre-existing development and, therefore, an Act 250 permit is not required. I. SUMMARY OF PROCEEDINGS On October 1, 1993, the District #2 Coordinator issued Advisory Opinion #2-85 to Mr. Frank Anthony. The District Coordinator concluded that an Act 250 permit was not required since the Project would not be a substantial change to a pre-existing development. On October 14, 1993, Mr. Anthony appealed from Advisory Opinion #2-85 and requested an executive officer advisory opinion. On November 24, 1993, Board Counsel Aaron Adler issued Advisory Opinion #EO-93-293. Counsel to the Board also concluded that an Act 250 permit was not required since the Project would not be a substantial change to a pre-existing development. On November 30, 1993, Mr. Anthony appealed from Advisory Opinion #EO-93-293 and petitioned for a declaratory ruling. On January 18, 1994, Board Counsel David L. Grayck convened a prehearing conference in Windsor, Vermont. On February 16, 1994, former Board Chair Courtney issued a Prehearing Conference Report and Order, and appointed Board member John Ewing as Acting Chair in this proceeding. On April 15, 1994, the Board issued a Memorandum of Decision relative to a request for a stay, and 28 separate requests for party status. The Board denied the stay request, denied 15 party status requests, and granted 13 party status requests. On July 20, 1994, the Board convened an evidentiary hearing in Windsor, Acting Board Chair John Ewing presiding. The following parties participated in the hearing: Kelly Green Environmental Services by Jonathan L. Springer, Esq. Frank Anthony, Susan Anthony, Douglas Punt, Douglas Birkett, Melvin Quigley, Grace Quigley, Debra Langhans, and Cheryl Chase by Frank Anthony Larry Bowser, Pro Se At the conclusion of the hearing, the Board recessed the proceeding. The Board conducted a deliberative session on this matter on August 17, 1994. On that day, the Board reviewed the record, adjourned the hearing, and voted to issue this decision. II. ISSUES 1. Whether the Plant is a pre-existing development pursuant to 10 V.S.A. § 6081(b) and Board Rule 2(O). 2. Whether, pursuant to 10 V.S.A. § 6081(b) and Board Rule 2(G), the operation of the Project at the Plant is a substantial change to a pre-existing development. III. FINDINGS OF FACT 1. The Plant is the former Goodyear Tire and Rubber Company (Goodyear) facility in Windsor, Vermont. Goodyear constructed the Plant prior to June 1, 1970. 2. The Plant is located on a 17 acre tract of land and is a multi-leveled building with 340,000 square feet of floor space. 3. In 1941, Goodyear employed 1,200 persons at the Plant. In 1987, when Goodyear ceased its operations at the Plant, it employed between 350-400 people. 4. Goodyear manufactured synthetic rubber products at the Plant, including shoe soles and heels, and white wall tires. Goodyear also made acid etch submarine tiles at the Plant. 5. Synthetic rubber is produced by mixing varying amounts of organic chemical compounds to form polymer chains. The process is started by the use of "initiator" chemicals and is ended by the use of "shortstop" chemicals. There are thousands of different "recipes" used to manufacture synthetic rubber. 6. At the Plant, synthetic rubber was manufactured on the second floor in Banberry mixers. Chemicals in powder form and liquid oils were all located on the third floor of the Plant in the Banberry area. The powder chemicals and liquid oils were loaded into chutes, and the person in charge of the batch would add the powder chemicals and liquid oils as called for in the recipe. 7. Halogenated solvents were also used at the Plant. Such solvents included methyl ethyl ketone (MEK) and trichloroethane. 8. Under Vermont's Hazardous Waste Management Regulations (effective August 15, 1991), MEK and trichloroethane are listed as hazardous wastes from non-specific sources. 9. In addition, Goodyear employees at the Plant were responsible for the handling of, acids, adhesives, resins, aerosols, and asbestos. 10. The movement of raw materials and finished products into and out of the Plant occurred by means of truck and railroad transportation. The chemicals and oils, when they arrived by either railroad or truck, were unloaded and stored in a designated area. 11. As needed, the chemicals and oils were removed from the designated area and used throughout the Plant. At various times, it was necessary for Goodyear employees to wear respirator equipment when working with the chemicals. 12. The combined truck traffic of the Plant's shipping and receiving departments, in the last ten years of the Plant's operation, ranged from between 10 and 20 round trips per day. Most of the trucks were tractor-trailer sized vehicles, and had chemicals as their cargo. 13. In April of 1987, the Connecticut River Development Corporation (CRDC) purchased the Plant. Goodyear phased out its operations at the Plant by the end of July, 1987. Thereafter, the CRDC began leasing commercial space at the Plant such that the Plant has always been occupied by tenants since Goodyear's departure. Currently, there are 11 commercial tenants at the Plant engaged in warehousing, manufacturing, and woodworking. 14. The Project will be limited to collecting, consolidating, and transporting household hazardous waste (HHW). The HHW which may be collected includes the following: acids, adhesives/resins, aerosols, antifreeze, asbestos, bases, batteries, dioxins, halogenated solvents, household cleaners, waxes, solvents, motor oil, nonhalogenated solvents, paint cans, oil and latex paint, pentachlorophenols, pesticides, and photochemicals. 15. Kelly Green must obtain a permit from the Agency of Natural Resources (ANR) to operate the Project pursuant to 10 V.S.A. Chapter 159. Originally, Kelly Green intended to operate a materials recycling facility (MRF), an organic composting (OC) component, and the Project at the Plant. However, Kelly Green has deleted the MRF and OC portions of its permit application to ANR. Kelly Green will limit its operations at the Plant to the Project and is seeking ANR approval only for the operation of the Project at the Plant. 16. As a result of the Project's operation, a maximum of 5 people would be employed by Kelly Green at the Plant. 17. The Project's operation includes the use of up to two specialized "cube" trucks. The cube trucks will service an area which generally includes the 29 communities in the New Hampshire/Vermont Solid Waste Project. 18. The Project's typical daily operation will have the two cube trucks leaving the Plant at the start of the day and traveling to those communities which are hosting the HHW collection events. 19. Once at the field location, citizens of the community will be able to dispose of their HHW. Kelly Green will have personnel trained in HHW management at the collection event to accept and initially sort the HHW for placement into the various compartments of the cube trucks. The cube trucks will then return to the Plant. 20. Once the cube trucks return with the collected HHW to the Plant, the same specially trained personnel will unload the HHW and conduct a second sorting procedure. 21. Once final sorting has been completed, the HHW may be stored at the Plant for up to 90 days. Eventually, all of the collected HHW will be consolidated into bulk amounts, repackaged, and transported from the Plant to a Treatment Storage and Disposal Facility (TSDF). 22. Shipments from the Plant to a TSDF must occur at least once every 90 days, but are likely to occur once every three to eight weeks. The frequency of the TSDF shipments depends on the total amount of HHW collected by Kelly Green in its operation of the Project. The TSDF vehicle will be a tractor-trailer truck. 23. Accounting for the cube trucks and TSDF truck traffic, the Project has the potential to generate a maximum of 5 round trips per day, that is, 10 truck trips per day. However, because this maximum includes two truck trips generated by the TSDF shipment, the maximum of 10 may be reached once every three to eight weeks. 24. Generally, because of client preference and the time and distances involved, each cube truck will spend an entire day servicing a single community. The Project will only generate four truck trips per day on those days when each cube truck is servicing a single community. However, it is possible that on some days the two cube trucks would each be able to service two communities, and thus, generate eight truck trips in a single day. 25. The Project will not be open to the public. However, for HHW collection events for the town of Windsor, Kelly Green has proposed that it would set up the cube trucks in a parking lot area at the Plant and citizens of Windsor would be able to dispose of their HHW at that time. 26. The Project will use between 4,000 and 5,000 square feet of floor space and will be located in the rear quarter of the Plant (that is, the southern quarter of the Plant on the easterly side). There is a small out-building that is connected to the Plant and that is where the HHW will be sorted and processed for storage and shipping. 27. The area within the Plant used to process the collected HHW will include a decontamination area for emergency use and general cleanup. This area will include a hose bib with a wash off station and cleaning supplies, eye wash bottles, secure 20 gallon galvanized metal pans to retain wash water, and clean hand and body towels. There will also be a hanging area to dry decontaminated suits, breathing apparatus, and supplies. 28. In conjunction with its occupancy of the Plant, Kelly Green will be putting up interior fire walls, shelving, and storage containers. Kelly Green will not perform any exterior construction in conjunction with its occupancy and use of the Plant. IV. CONCLUSIONS OF LAW A. Pre-existing Development Act 250 requires that a land use permit be obtained prior to commencing construction on a development. 10 V.S.A. § 6081(a). "Development" is defined, in part, as a commercial project located on a tract of land of more than one or ten acres, depending on whether the town has permanent zoning and subdivision bylaws. 10 V.S.A. § 6001(3). The requirement to obtain a permit does not apply to a "development which is not also a subdivision, which has been commenced prior to June 1, 1970, if the construction will be completed by March 1, 1971." 10 V.S.A. § 6081(b). Board Rule 2(A)(5) provides in relevant part that a project is a development if it consists of "[a]ny construction of improvements which will be a substantial change of a pre-existing development . . . " Board Rule 2(0) states: "Pre-existing development" shall mean any development in existence on June 1, 1970, and any development which was commenced before June 1, 1970 and completed by March 1, 1971. Goodyear constructed the Plant before 1970 on a 17 acre tract and operated it as a commercial project. Goodyear used the Plant until July of 1987. While Goodyear was phasing out its operations at the Plant, the CRDC took over the Plant and immediately began its commercial leasing operations. The Plant has been in continuous use ever since its construction. The Board concludes that the Plant is a pre-existing development. B. Substantial Change Under 10 V.S.A. § 6081(b) and Board Rule 2(G), a substantial change to a pre-existing development is any change in a development which may result in significant impact with respect to any of the ten Act 250 criteria. The Board uses a two-step process to determine when a substantial change has occurred or is proposed. First, there must be a cognizable change to the project. Second, the change must have the potential for significant impacts under one or more of the ten Act 250 criteria. The Board's test has been upheld by the Vermont Supreme Court. In re Barlow, 4 Vt. Law Week 199 (Aug. 13, 1993); In re Manosh Corp., 147 Vt. 367, 369 (1986); In re Orzel, 145 Vt. 355, 360-361 (1985). 1. Cognizable Change In prior rulings, the Board has held "cognizable change" to mean a physical change. See Re: Village of Ludlow, Declaratory Ruling #212 (Jan. 30, 1990); Re: L.W. Haynes, Inc., Declaratory Ruling #192 (Oct. 7, 1987). The Board does not believe that Kelly Green's processing and disposal of HHW is a physical change from Goodyear's manufacturing operation at the Plant. No physical change will result because Goodyear's past use and Kelly Green's Project both involve the manipulation of hazardous materials for a commercial purpose. The Board does conclude, however, that Kelly Green's exclusive reliance on truck traffic for the operation of the Project is a cognizable physical change from Goodyear's operation at the Plant. Therefore, the Board will evaluate whether this change has the potential for significant impacts under one or more of the ten Act 250 criteria. 2. Potential for Significant Impacts The Project has the potential to generate, at a maximum, 10 truck trips per day once every three to eight weeks. More likely, however, the Project will generate 4 truck trips per day and, on occasion, 8 truck trips per day. The Board concludes that Kelly Green's exclusive reliance on truck traffic for the operation of the Project does not have the potential for significant impacts under any of the Act 250 criteria. Cognizable physical changes which do not have the potential for significant impacts under the Act 250 criteria are not substantial changes and, thus, do not trigger Act 250 jurisdiction. See Re: Dale E. Percy, Inc., Declaratory Ruling #251 (March 26, 1992). Therefore, the Board concludes that the Project's cognizable physical changes do not constitute a substantial change to a pre-existing development and do not trigger Act 250 jurisdiction. While the Board has concluded that the truck traffic associated with the Project does not have the potential for significant impact under any of the Act 250 criteria, there may come a time when the aggregate amount of commercial traffic due to all of the Plant's tenants will be sufficient to constitute a substantial change. When Goodyear owned and operated the Plant, it made extensive use of the adjacent railroad facilities. The chances of a substantial change occurring on a prospective basis will increase each time the CRDC leases space in the Plant to additional tenants over the current 11 if such tenants are dependent upon motor vehicles for the movement of supplies and products. V. ORDER An Act 250 permit is not required for the operation of the Project at the Plant because the Project is not a substantial change to a pre-existing development. Dated at Montpelier, Vermont, this 24th day of August, 1994. ENVIRONMENTAL BOARD ____________________________ John Ewing, Acting Chair Dr. Robert Page Lixi Fortna Arthur Gibb Samuel Lloyd William Martinez c:\decision\kelly.dec (d5)