RE: Petition for Rulemaking by Edward H. Stokes, Decision Regarding Request to Initiate Rulemaking (Oct. 9, 1996) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. §§ 6001-6092 RE: Petition for Rulemaking by Edward H. Stokes DECISION REGARDING REQUEST TO INITIATE RULEMAKING This decision pertains to a request to initiate rulemaking. As explained below, the Board declines to initiate rulemaking but does adopt two sets of guidelines: (i) "Guide to Requesting a Jurisdictional Opinion for Communications Facilities" and "Communications Facility Jurisdictional Opinion Request Form"; and (ii) "Guide to Schedule B for Communications Facility" and "Act 250 Application for Communications Facility." I. PROCEDURAL SUMMARY On December 6, 1995, Edward H. Stokes ("Stokes") filed a document entitled "Petition for Declaratory Ruling" ("Petition") pursuant to Environmental Board Rule ("EBR") 3(D). On December 18, 1995, John T. Ewing, Chair, issued a letter to Stokes stating that the Petition was not a contested case declaratory ruling, but rather, a petition for rulemaking which the Board would consider in an "open meeting" format under the Vermont Open Meeting Law, 1 V.S.A. §§ 312-313. On December 20, 1995, the Board convened a public meeting. After hearing from Stokes, the Board tabled the Petition until after the Board members attended a tele- communications conference in January, 1996, at the Vermont Law School. Prior to voting on the motion, the Board obtained Stokes' express consent to waive the requirement in 3 V.S.A. § 806 that rulemaking either be initiated or declined within 30 days of when a petition is filed. On February 28, 1996, the Board convened a public meeting. Then Associate General Counsel Aaron Adler informed the Board of a communication between himself and Stokes in which Stokes, in part, stated that he would like the Board to consider other options besides rulemaking. Accordingly, the Board tabled the Petition pending clarification from Stokes. On March 27, 1996, the Board convened a public meeting. Stokes informed the Board that he wanted his Petition to be acted upon eventually, but that he did not object to the Petition remaining tabled to allow the Board further opportunity to conduct public meetings regarding communication and broadcast facilities. In addition, Atlantic Cellular Company submitted a proposed protocol for reviewing broadcast and communication facilities ("Providers' Protocol"). On April 24, 1996, the Board convened a public meeting. Stokes agreed that the Petition should be considered dormant to allow the Board further opportunity to review the Providers' Protocol and other proposals. On May 22, 1996, the Board convened a public meeting. The Board continued its consideration of the Providers' Protocol, and directed Michael Zahner, Director of Administration, to lead a committee of district environmental coordinators for the purpose of reviewing and modifying the Providers' Protocol. On July 31, 1996, the Board convened a public meeting. The Board considered the Providers' Protocol, the district coordinator's protocol ("Coordinators' Protocol"), and the Petition. On September 25, 1996, the Board convened its final public meeting. The Board unanimously voted to revive the Petition so that the Petition, Providers' Protocol, and Coordinators' Protocol could be considered by the Board. II. PETITION'S SUBJECT MATTER FOR RULEMAKING The Petition did not propose any rules to be adopted. Rather, the Petition sought rulemaking with regard to eight questions which are: 1. Does the Board or a District Environmental Commission have any jurisdiction under 10 V.S.A. § 6086(a)(1), air pollution, over the transmissions of radio or television stations licensed by the Federal Communications Commission. 2. Does the Board or a District Environmental Commission have jurisdiction under 10 V.S.A. § 6086(a)(1), air pollution, to hear complaints about interference by radio or television transmissions to appliances used by neighbors or the general public. 3. Does the Board or a District Environmental Commission have jurisdiction under 10 V.S.A. § 6086(a)(1), air pollution, to hear complaints about potential health hazards associated with radio and television transmissions. 4. If there is jurisdiction over such potential health hazards, should the Board adopt a set of standards (such as the ANSI standard used by the Federal Communications Commission) for objective measurement of the extent of any such hazard. 5. Does the Board or a District Environmental Commission have jurisdiction under 10 V.S.A. § 6086(a)(8), aesthetics, to coerce or compel a tower applicant whose Federal Communication Commission construction permit requires a certain tower height and location to relocate or modify the height of a tower as mitigation of aesthetic impacts as a condition of receiving a permit. 6. If this power exists, is it fair to coerce or compel such mitigation when doing so threatens the applicant with loss of its federally issued license. 7. Does the Board, as a matter of public policy, favor the consolidation of communications tower facilities so as to minimize the number of towers needed to be built in the future and to maximize the efficiency and utilization of existing or proposed towers. 8. If consolidation is to be so favored, should the Board encourage it by streamlining permitting procedures in accordance with 10 V.S.A. § 6025(b) for new uses of existing facilities. III. DECISION Pursuant to 3 V.S.A. § 806, a person may request an agency to adopt, amend or repeal a procedure or rule, and the Board "shall initiate rulemaking proceedings, shall adopt a procedure, or shall deny the request, giving its reasons in writing." The Board's decision relies on the documents submitted and the comments provided during the course of the Board's public meeting process. A. Petition Questions 1 and 2 10 V.S.A. § 6086(a)(1) provides, in part, that before granting an Act 250 permit, an applicant must demonstrate that the project will not result in undue air pollution. The phrase "air pollution" is not defined in Act 250 or the Board's rules. While the state statute governing air pollution control permits issued by the Agency of Natural Resources does not include radio waves as an air pollutant, the parallel federal statute is broader and includes "radioactive substances." The issue of whether radiofrequency interference ("RFI") is subject to Act 250 jurisdiction under Criterion 1 is at issue in Re: Steve Korwan d/b/a Contel Cellular of Vermont, #4C0901-EB (Revocation). It would be inappropriate to decide in the context of a rulemaking proceeding what is already pending as an issue in a contested case proceeding. The Board is a quasi-judicial body which adjudicates contested cases under Act 250 and Vermont's Administrative Procedure Act ("APA"). When the Board adjudicates a contested case, it is required under federal law and 10 V.S.A. § 6092 to forego jurisdiction where federal law preempts Act 250. Accordingly, not only is rulemaking inappropriate, it is not necessary since federal law and Act 250 prohibit the exercise of jurisdiction where Act 250 is preempted, and such a determination must be made if raised as an issue in a contested case. Finally, the Board notes that there is a wide divergence of opinion as to whether there is Act 250 jurisdiction over RFI based on the comments it has received from the public meeting participants. This divergence comes after the Legislature, during the past biennium, failed to enact S.329 which would have expressly excluded radio waves emanating from broadcasting towers as air pollution under Criterion 1. The Board declines to enact by rulemaking what the Legislature declined to enact by legislation particularly since this issue will be resolved in a current contested case proceeding. Accordingly, the Board declines to initiate rulemaking with regard to questions 1 and 2 of the Petition. B. Petition Questions 3 and 4 Petition questions 3 and 4 pertain to whether the Board has jurisdiction under Criterion 1 over potential health hazards associated with radio and television transmissions, that is, radiofrequency radiation ("RFR"). If there is jurisdiction over RFR, the Petition requests that the Board consider adopting a standard used by the Federal Communications Commission ("FCC"). The issue of whether RFR is subject to Act 250 jurisdiction under Criterion 1 is an issue in Re: Steve Korwan d/b/a Contel Cellular of Vermont, #4C0901-EB (Revocation). It would be inappropriate to decide in the context of a rule- making proceeding what is already pending as an issue in a contested case proceeding. Moreover, H. 795 §2, which became law on May 15, 1996, charges the Commissioner of Public Service to report to the General Assembly on or before January 1, 1997 regarding the health effects of RFR. It would be inappropriate for the Board to initiate rulemaking in this area before the Department of Public Service completes its charge and reports back to the Legislature. The Board has also reviewed the substantial FCC guidance which exists in this area, and the Board is persuaded that this guidance makes rulemaking unnecessary at this time. Section 704(a)(7)(B)(iv) of the Telecommunications Act provides for federal preemption of state and local regulation of personal wireless service facilities on the basis of RFR environmental effects: No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the [FCC's] regulations concerning such emissions. The FCC has completed its rulemaking on this topic by the issuance of In the Matter of Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation, Report and Order, ET Docket No. 93-62 (Aug. 1, 1996) ("Report and Order"). Pursuant to the Report and Order, the FCC has adopted regulations for evaluating the environmental effects of RFR from FCC-regulated transmitters. In the Report and Order, the FCC notes that the Telecommunications Act does not preempt state or local regulations relating to RFR emissions from broadcast facilities or other facilities that do not fall within the definition of "personal wireless services." With regard to personal wire services, Act 250 jurisdiction is preempted where personal wireless service facilities comply with the FCC's regulations. However, this means that the Board and district commissions must decide whether they are preempted based on the facts in each application proceeding relative to the personal wireless facility's compliance with the FCC's regulations. With regard to non-personal wireless facilities, the Board and district commissions may inquire as they deem appropriate since there is no federal preemption regarding RFR from this category of facilities. Nevertheless, the Board is mindful of the FCC's admonition in the Report and Order that should non-Federal RFR standards be adopted that adversely affect a licensee's ability to engage in FCC authorized activities, the FCC would consider whether federal action is necessary. Thus, states' rights survive, but under the FCC's watchful eye. Finally, as noted above with regard to Petition questions 1 and 2, the Legislature failed to enact S.329 and the Board declines to enact by rulemaking what the Legislature declined to enact by legislation. Accordingly, the Board declines to initiate rulemaking with regard to questions 3 and 4 of the Petition. C. Petition Questions 5 and 6 Petition questions 5 and 6 pertain to Act 250 jurisdiction under 10 V.S.A. § 6086(a)(8), aesthetics. Under Criterion 8, in part, before granting an Act 250 permit, an applicant must demonstrate that the project will not have an undue adverse effect on aesthetics. The Petition requests rulemaking that would limit the Board's authority under Criterion 8. Generally, the Board and the district commissions have exercised their authority under Criterion 8 with regard to mitigating the aesthetic impact of a tower in the location chosen by the applicant. For example, in Re: Stokes Communications Corporation, #3R0703-EB, Findings of Fact, Conclusions of Law, and Order (Dec. 13, 1993), the Board issued a permit to a radio tower owner/operator with the condition that light shields be installed to reduce the tower's night-time visibility. In affirming this condition, the Vermont Supreme Court concluded that the installation of light shields was a generally available mitigating step under Criterion 8 since it was reasonably feasible and would not frustrate the project's purpose or Act 250's goals. In re: Stokes Communications Corporation, 6 Vt. Law Week 210 (June 21, 1995). With regard to the location of telecommunication towers, the FCC issues construction permits to allow an applicant to provide a signal within a designated service area. The FCC's interest is ensuring that the facility meets certain coverage and contour requirements, but that interest does not include involvement with the exact location chosen by the licensee. With regard to location of broadcasting towers, the exact location of the tower is subject to a more rigorous level of FCC review as compared to telecommunication towers, but the FCC's own process is not an inflexible one. The Board concludes that whether a tower should be relocated or modified to address aesthetic impacts can only be decided in the context of a fact-specific tower project application. Clearly, the regulation of aesthetic issues relative to towers is within the Board's jurisdictional scope as affirmed in Stokes. In exercising this jurisdiction, the Board and the commissions have an opportunity to evaluate each tower project on the project's own merits with the under- standing that Act 250 cannot generally frustrate an FCC licensed activity. This means that the Board and the commissions may have to decide if their Criterion 8 review is preempted by the FCC's authority over a tower's location. Accordingly, the Board declines to initiate rulemaking with regard to questions 5 and 6 of the Petition. D. Petition Questions 7 and 8 Petition questions 7 and 8 request the Board to consider whether, as a matter of public policy, the consolidation of communication tower facilities should be favored to minimize the number of towers needing to be built in the future and to maximize the efficiency and utilization of existing or proposed towers. If consolidation is to be favored, the Petition raises whether the Board should streamline the permitting procedures in accordance with 10 V.S.A. § 6025(b). The issue of consolidation raises issues with regard to the local and regional planning process, as well as RFI and RFR. Mandating consolidation of operators onto one tower facility inevitably will draw the Act 250 process into managing facilities-based competition. The Board concludes that it would be inappropriate to mandate by rule that FCC licensees share tower facilities. Rather, this is a decision which local and regional planning commissions should make through the adoption of local and regional plans. These plans then control the scope of review conducted by the Board and the commissions under Criterion 10. In addition, while the Board and commissions may require collocation under Criterion 8, it is also clear that the consolidation of operators onto one tower may have unforeseen RFI or RFR consequences. Placing more broadcasters onto one tower can potentially intensify RFI and RFR since there would be more signals radiating from a given location. Although there may be aesthetic gains from having fewer towers, there is a potential tradeoff if those towers are taller than would otherwise be necessary and have greater aggregate RFI and RFR consequences. These issues are best decided in the context of a fact specific contested case proceeding as compared to broad-based rulemaking. With regard to a streamlined procedure, the Board notes that EBR 51 already provides for such a streamlined procedure and, thus, a new procedure is not warranted. Moreover, the Act 250 process for broadcasters and communication providers will now be facilitated by the Board's adoption of the Coordinators' Protocol as described below in subsection E. The Coordinators' Protocol identifies significant issues prospectively so that broadcasters and communication providers can make decisions on an informed basis before they file an Act 250 permit application. While the Coordinators' Protocol does not limit the inquiry nor guarantee that a permit will be granted, it should streamline the Act 250 process since the relevant information needed to process a jurisdictional opinion request or project application will be filed as part of the applicant's original submission. Accordingly, the Board declines to initiate rulemaking with regard to questions 7 and 8 of the Petition. E. Adoption of Coordinators' Protocol Under EBR 10(B), the Board may issue guidelines for the use of commissions and applicants in determining the information and documentation that is necessary or desirable for the thorough review and evaluation of projects under applicable criteria. The Board has considered both the Providers' Protocol and the Coordinators' Protocol. As a result of the public meetings, the Coordinators' Protocol has been modified to incorporate substantial portions of the Providers' Protocol and, accordingly, the Providers' Protocol was withdrawn for consideration at the Board's final public meeting. Therefore, the Board has adopted the Coordinators' Protocol. The Coordinators' Protocol consists of two sets of guidelines: (i) "Guide to Requesting a Jurisdictional Opinion for Communications Facilities" and "Communications Facility Jurisdictional Opinion Request Form"; and (ii) "Guide to Schedule B for Communications Facility" and "Act 250 Application for Communications Facility." The guide to requesting a jurisdictional opinion and the opinion request form seek information that is relevant to who is the applicant, what is the land that the project will use, and what is the project's scope. This information is necessary before a coordinator can issue a jurisdictional opinion pursuant to 10 V.S.A. § 6007(c). The guide to schedule B for communications facility and the Act 250 application for communications facility seek information that is relevant to all ten Act 250 criteria with a special emphasis on those issues which are unique to broadcast and communication facilities. For example, under Criterion 1, applicants will address FCC-related issues so that the commissions can better understand how the applicant is regulated by the FCC and, in turn, how Act 250 can avoid frustrating the FCC-authorized activity. Under Criterion 8, applicants will address key aesthetic issues such as the project's realistic visual appearance from a variety of areas, whether the project will allow for additional facilities or collocation, and the project's mitigation measures such as landscaping. Under Criterion 10, applicants will address which town and regional plans apply to the project, and what the plans say about broadcast and telecommunication projects. This information is vital to the review called for under Criterion 10. In summary, the Coordinators' Protocol will help applicants know what information and issues are fundamental to the decisions which Act 250 requires the district coordinators, district commissions, and the Board to make. All parties, whether they be applicants, towns, local or regional planning commissions, adjoining landowners, affected persons, or materially assisting persons, will benefit from an Act 250 process staffed by persons familiar with the unique aspects of broadcast and communication facility projects. IV. ORDER 1. Pursuant to 3 V.S.A. § 806, the Board declines to initiate rulemaking as requested by the Petition. 2. Pursuant to EBR 10 the Board adopts the Coordinators' Protocol as attached hereto and incorporated herein. Dated at Montpelier, Vermont, this 9th day of October, 1996. ENVIRONMENTAL BOARD ____________________________ John T. Ewing, Chair John Farmer Arthur Gibb Marcy Harding Samuel Lloyd William Martinez Rebecca Nawrath Steve Wright