Critics cry foul over plan to retroactively permit CSWD glass dumping

By | November 11, 2020

People drop off recycling and garbage at the Chittenden Solid Waste District drop-off center in Williston on Tuesday. Photo by Glenn Russell/VTDigger

Critics say a plan to retroactively approve the alleged improper disposal of glass by the Chittenden Solid Waste District makes a farce of environmental regulation.

In 2018, the Agency of Natural Resources found CSWD violated rules by disposing of crushed glass at its Williston site without state approval. 

Because of the scope of the dumping and the potential fines involved, the Attorney General’s Office was called in to investigate. 

Two and a half years after the alleged violations were found, the case remains unresolved.  

Now, however, state officials are discussing issuing retroactive permits as a way to settle the case, a move that critics say would undermine enforcement and not hold the district accountable. Even some within the agency oppose the move.

“It’s god-awful what is going on right now, what the ANR and the AG is also doing,” said John Brabant, who spent 20 years working as a regulator for the Agency of Natural Resources. Brabant is now the director of regulatory affairs for the nonprofit group, Vermonters for a Clean Environment.  

“It is so scandalous on so many angles. They’re doing everything in their power to assist Chittenden Solid Waste District in limiting their liability and limiting public scrutiny,” Brabant said of ANR and the Attorney General’s Office.

The three permits being discussed would make Chittenden Solid Waste District’s disposal of glass on its Williston property legal, after the fact. Whether or not the glass already buried will have to be removed is still an open question. 

In April 2018, ANR sent Chittenden Solid Waste District a notice of alleged violation for disposing of “thousands of cubic yards of discarded crushed glass” at two sites by the closed town landfill and the district’s composting facility in Williston. 

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The alleged violations were for disposal outside a certified facility and for failing to accurately report it to the state, officials reported last year. The waste district said the  glass it took in from haulers had been sent to markets to be recycled and that leftover, unusable “aggregate” glass had been used in allowable local projects such as paving. A subsequent ANR investigation, however, found both claims to be untrue. The agency found that the solid waste district had been disposing of glass for years and misrepresenting its records, according to the ANR investigation. 

Officials with CSWD deny all allegations they acted improperly. They say permits were never necessary and the district acted in accordance with state regulations. 

“We disagree with the determination and the allegations,” said Michele Morris, the solid waste district’s director of outreach and communications. “We maintain that we didn’t need to get those permits. It wasn’t something that we felt was required in the first place, based on information that we were given.” 

The waste district maintains the leftover glass was processed according to standards called “processed glass aggregate” — ground down into fine enough pieces to be used legally in construction projects. 

Finding a market to sell recycled bottles and other glass products has been difficult, according to CSWD, which states on its website that starting in 2003: “All glass coming into the MRF becomes Processed Glass Aggregate.” A state lawyer confirmed that was his understanding of how glass products were being handled at CSWD. One possible market to sell recycled goods in Canada was closed off because of the coronavirus. 

In a  2019 letter to Newport Mayor Paul Monette,  CSWD executive director Sarah Reeves said: “ANR recognized, as others across our region and the country have recognized, that market prices for cullet–recycled glass suitable for making new bottles–were decreasing, and not expected to reverse.”

Reeves disputed the material had been “dumped” and noted the difficulty and expense involved in its disposal. CSWD pays businesses that take the aggregate away, she told Monette. Reeves argued it made sense to try and use the product locally and not spend money trucking the glass to possible distant markets.

Brabant worries the lack of a market creates an incentive for the district to dispose of the glass internally, while also keeping the fees haulers pay the district to take their product.

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Three permits are under consideration for retroactive approval. Environmentalists like Brabant and other Vermont solid waste district managers want the Attorney General’s Office to complete its investigation first.

If the back-permits are granted, according to Brabant, the legal case against CSWD could be seriously weakened, and open the way for a settlement that could reduce or eliminate holding the district accountable. 

A bin full of mixed glass bottles at a recycling facility in Essex Junction. File photo by John Herrick/VTDigger

Settlement in the works

Chittenden Solid Waste District has been receiving glass from around the state to recycle at its facilities since 1993. In 2003, it invested $2.1 million in an MRF — a material recovery facility — to allow single-stream, no-sort recycling.

Vermonters cleaned their bottles and put them into no-sort blue bins, haulers paid the waste district to take the glass, and the district sent quarterly reports to the state that said the glass was being sent to market for recycling or used in allowable projects.

From public records, it is clear that the attorney general, the Agency of Natural Resources and the waste district have been working toward a settlement.   

In a letter, the Attorney General’s Office directed the solid waste district to obtain permits for three different practices. The first is placing material under a landfill cap. The second is disposing of material in a compost pad. And finally, it has been instructed to “obtain categorical disposal certification from ANR for the material disposed of … by the closed landfill.” 

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The Agency of Natural Resources is considering the back-permits, according to communications between state officials.  

“Question on CSWD glass: Have they said or we found that there is an issue with setbacks or something?” wrote Barb Schwendtner in an email on April 16 to Dennis Fekert, certification section chief — responsible for permitting oversight. Schwendtner is the solid waste compliance chief at the Agency of Natural Resources. “This is coming up because they are balking at a settlement that requires removal if they don’t get all of the permits.” 

The terms of a potential agreement remain unclear, and some worry the district will not be held accountable for its actions. 

Critics say the district committed consumer fraud, eroding the public’s trust in recycling services and enforcement of state regulations. They call for fines that would discourage Chittenden Solid Waste District or any other district in the state from ever illegally dumping again. 

Other solid waste districts have written letters objecting to the process. They say that back-permitting sets a bad precedent — asking for forgiveness instead of permission when it comes to illegal dumping. They contend that the Chittenden Solid Waste District has been given different, more lenient treatment than they have received.

“Members of our board were very upset to find out that our glass, as well as glass from many other Vermont towns, delivered for processing at the MRF [materials recovery facility], was in fact not recycled, but disposed of in a number of locations on CSWD property in Williston,” wrote Fred Thumm, chair of the Central Vermont Solid Waste Management District in a letter to the Agency of Natural Resources on Nov. 5.

The Northeast Kingdom Waste Management District wrote a similar letter. Paul A. Tomasi, executive director of the district’s board, writes that the board is “particularly interested” in the permitting process because the state agency had denied its request to “landfill approximately 10 tons of glass in July of 2019.”

“By allowing CSWD to apply for, and receive, permits for projects undertaken and completed nearly seven years ago, the NEKWMD board feels the VT Agency of Natural Resources is setting a dangerous precedent that encourages solid waste entities to seek forgiveness rather than permission for activities requiring permits in advance of the activity,” Tomasi wrote. 

Casella Waste Systems recycling
Employees of Casella Waste Systems sort plastic recyclables at the Chittenden Solid Waste District’s material recovery facility. File photo by Elizabeth Gribkoff/VTDigger

The Northeast Kingdom district echoes the request made by the Central Vermont district that the state agency delay granting any back-permits until the attorney general has made a decision on the case.   

While the boards refer to two permits, the general counsel for the Department of Environmental Conservation, John Beling, told VTDigger on Monday that an additional permit is also now being discussed to address what is referred to as “the big pile.” This would be the third permit recommended by the Attorney General’s Office for “material disposed of over the bank by the closed landfill,” according to a letter from the AG. 

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According to the 2018 ANR investigation, “the big pile” contains an estimated 11,538 tons of glass, or 15,000 cubic yards. 

The solid waste district maintains that the processed glass aggregate was used in an appropriate way to stabilize the embankment.

However, former employee Robert C. Magee Jr. told a state enforcement official an account that conflicted with the district’s. Magee was a maintenance supervisor for the solid waste district from 2014 until June 2020. He wrote, “In approximately 2015, I was directed by Brian Wright, facilities manager, CSWD, to prepare a location directly adjacent to the landfill at the end of Redmond Road in Williston, VT, for the dumping of processed glass aggregate (PGA).”

Magee said that “the slope was stable before that work began.”

Magee didn’t come forward with this information while he was employed at the district, worried he would lose his job. 

“The PGA was visibly dirty. It had a putrid smell when it was being manipulated. I believe the poor condition of the PGA made it difficult to recycle it economically. The dumping stopped in 2018,” Magee said in his statement given to Sean J. McVeigh, the chief environmental enforcement officer, an investigator on the case for the ANR. 

“In my opinion, the preparation site work above and then of dumping of the PGA was not done to stabilize or protect the slope. It had been done to facilitate the dumping of a large volume of PGA at that location to facilitate the continued operation of the MRF,” Magee said. 

“They pushed it over a bank at the landfill and they said they used it for bank stabilization. You think about crushed glass; it’s sand. It’s probably the worst material you could use,” Patrick Austin told VTDigger. Austin runs his own hauling business and pays CSWD to take glass. He also serves on the Charleston Selectboard. 

Haulers paid the solid waste district a fee, understanding that the glass would then be brought to market, which never happened. 

“A lot of energy goes into it,” Austin said. In 2012, Vermont passed the Universal Recycling Law, Act 148, prohibiting Vermonters from throwing away items that can be recycled or reused. 

“They were reporting that the stuff was being recycled, putting it on their reports. When they talk about the success of Act 148, material that didn’t go to a landfill, this material is calculated into that. They obviously were not recycling it. They were not trying to reuse it,” said Austin. 

For Austin, this is an issue with the integrity of the system. 

“It’s not what people expected when they put that material in the blue bin, when they washed it out,” he said. People “lose trust in the process. It’s painful to watch.”

“If they get the permit, any civil suit, any action from the AG would be severely watered down,” he said. “I don’t believe that CSWD should be allowed to remain in the business of marketing recyclables.”

“I have very little faith that this district can be trusted in its current form to process Vermont’s material,” Austin said. “Even now, after all this has happened, I have questions about what they’re doing with their glass now. Is it piled up somewhere?”

The general counsel for the Department of Environmental Conservation, John Beling, told VTDigger that processed glass is now shipped to the Frank W. Whitcomb Construction Corp. in Colchester. Whitcomb is a major paving company, although Beling was unsure about how the company is using processed glass aggregate.

Tyler Whitcomb was not available for comment Tuesday.

People drop off recycling and garbage at the Chittenden Solid Waste District drop-off center in Williston on Tuesday. Photo by Glenn Russell/VTDigger

What now?

The Attorney General’s Office is optimistic about reaching a resolution soon. 

“We are talking to the other side and hopeful for resolution,” said Attorney General TJ Donovan, of the AG’s talks with CSWD. Donovan blamed the delay on the coronavirus. Asked about the holdup in the case prior to the pandemic, Donovan said: “The legal process is painfully slow sometimes.”

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“Hopefully we can resolve the case sooner rather than later,” he said. “This is the normal course.”  

It is unclear whether a settlement would allow or prevent future similar dumping.

But having worked as a regulator for the ANR, John Brabant says it is “clear that the AGs office has no interest in prosecuting this seriously or as intended by the law.”

He points out that the attorney general has a dual role in this case — to represent the state government, and also to represent the public interest when expectations have been violated. 

“In a perfect world, that would never be a conflict,” Brabant said, but he thinks that now, there is one.

“Chittenden District is doing everything in their power to tamp this down,” Brabant said. 

In addition to what regulators are reviewing, Brabant said that he has found “another massive dump” that he attributes to the solid waste district. Brabant said he would not disclose the location to the Agency of Natural Resources or to the public, because he’s worried it would then be included in a possible settlement. 

Beling said he’s not concerned about the attorney general’s timeline for handling the case. “Certainly we’re listening” to public comments, he said, “trying to make a measured response about what to do next.” 

According to Beling, “the first option is to settle” with the solid waste district. “Both ANR and the AG try to work settlements if possible,” he said.

“There’s a lot of uncertainty and expense associated with trials,” said Berling, who also worked at the Attorney General’s Office in Massachusetts. 

He acknowledged providing retroactive permits was not the norm. 

“I’m not sure I’ve seen something quite like this before,” he said.

Brabant disagreed the goal should be a settlement. He criticized the Attorney General’s Office for not building a stronger case against the waste district by collecting more samples. 

“They did not take quality samples,” said Brabant. “Their case is very weak because they’ve collected no good real evidence.”

Public records show there were also concerns within the Agency of Natural Resources about allowing back-permitting.

“Approval for after-action activities is not good regulation in my opinion,” wrote Dennis Fekert, in an email in November 2019.

Brabant says there are risks for the ANR if it grants the permits without an engineer signing off on the work that has been done, especially for the reclosing of the sealed landfill. “Without any record to show that this landfill was reclosed to standards,” Brabant said, “ANR is taking on huge responsibility if things go south down the road. I think they’re rethinking that, if ANR went too far.”

The public comment period on the first two permits under discussion ended Tuesday. The third application was received on Oct. 30 and is still in its early stages. The Agency of Natural Resources has yet to decide whether it will grant the permits. 

“It’s a pretty fluid situation because there is an ongoing enforcement case and they do kind of go together,” Beling said, adding “we’re still processing and trying to figure out the best approach.”

The three proposed permits cover three separate locations of glass. “We haven’t decided how to manage that just yet,” said Beling. “It’ll probably all end up being resolved together.” 

“I thought we would have a firmer picture of what we are going to do,” he said this week. A decision could come soon, Beling said.

Meanwhile, Brabant said public scrutiny appears to be growing. 

“There is momentum building as people get educated,” Brabant said. “People are beyond upset. They’re horrified and they’re angry.” 

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