Panton farm-pollution penalty

Filed by TED COHEN/Patch.com with Vermont Digger

PANTON, VT -- The Vermont Agency of Natural Resources has issued a $21,750 fine against Vorsteveld Farm - already under fire from neighbors for alleged pollution - for dumping waste into a local creek.

Environmental Court Judge Thomas Walsh approved the agency’s proposed fine and corrective action on Dec. 10.

The Vorstevelds, who operate one of the largest dairy farms in the state, have agreed to pay the fine, restore wetlands on their property and stop discharging farm waste into Dead Creek, according to an announcement about the fine issued by the agency.

A decision on the matter took longer than normal because the Conservation Law Foundation, an environmental advocacy group, filed a motion asking the court to deny the state’s proposed fine.

The penalty isn’t enough to stop the farmers from violating the environmental laws in the future, the Conservation Law Foundation’s motion said.

During site visits in 2016 and 2017, agency staff discovered that the farmers had dredged and filled around seven acres of Class II wetlands, which are protected under state law, and their surrounding buffer zones.

The agency issued a notice of violation in July 2017, and directed the farmers to restore the wetlands and buffer by September of that year. By the time the state first filed the fine for approval by the court, three years later in the fall of 2020, the Vorstevelds still had not restored the wetlands.

Meanwhile, in May 2019, staff from the Agency of Agriculture, Food and Markets visited the farm for a routine inspection, according to an Assurance of Discontinuance, the court document that lists the violations and resulting fine.

Agency staff noticed “agricultural waste flowing from various outlet pipes into a roadside channel where it was conveyed in an easterly direction and discharged into a tributary of the Dead Creek,” which empties to Lake Champlain nearby.

Staff from the Agency of Natural Resources received a referral and visited the farm again in March 2020, finding “a hydrologic connection between the roadside channel and the tributary of Dead Creek” and evidence of prior discharges, the document says.

The fine accounts for both the wetlands and discharge violations, and farmers are required to prevent future runoff into the Dead Creek and restore the wetlands.

The Vorstevelds were unavailable for comment.

The state supports farmers’ efforts to prevent water pollution, Peter Walke, commissioner of the Department of Environmental Conservation, said in an announcement of the fine.

“However, we are prepared to use a suite of compliance tools to correct unlawful activities and restore the environment when unpermitted activities occur, up to and including formal enforcement,” he said.

The Conservation Law Foundation alleged that the farmers committed two additional violations “during the final negotiations” of the fine, according to its motion.

The penalty only accounts for the violations identified by agency staff that are listed in the Assurance of Discontinuance, and not the additional violations alleged by the foundation, said Kane Smart, enforcement and litigation attorney with the Agency of Natural Resources.

Asked whether anyone is looking into those violations, Smart said he wasn’t sure whether an investigation is ongoing.

The state has issued fines against Vorsteveld Farm in Panton for wetlands and runoff violations. Photo courtesy of the Vermont Agency of Natural Resources.

“To the extent there are other activities or actions or incidents that are, or that do amount to, a violation, there can be future enforcement brought,” Smart said. “There’s not a formal referral to the enforcement section.”

Other alleged violations on the farm are outside the scope of the fine and “have not yet been shown to be violations,” the court decision said.

During a trial involving the Vorstevelds, which took place last week in Addison County Superior Court and is scheduled to continue in January, attorneys representing the farmers’ neighbors presented aerial photos showing rivers of milky brown runoff flowing through their property and into Lake Champlain. Expert witnesses testifying for the neighbors said state agencies haven’t done enough to regulate the farm.

“It’s about time this farm is held accountable for its illegal destruction of wetlands and unpermitted runoff polluting nearby waters and ultimately Lake Champlain,” Elena Mihaly, vice president and director of Conservation Law Foundation Vermont, said in a statement to VTDigger about the state-issued fine.

Walsh, the environmental judge with the state Superior Court’s Environmental Division, denied the foundation’s motion earlier this month while approving the Agency of Natural Resources’s fine.

The court was “not convinced” by the organization’s argument that the fine wouldn’t deter future violations. The farmers will “incur significant costs to come back into compliance,” the decision said.

“Unfortunately, this low penalty amount is nothing but a slap on the wrist,” Mihaly wrote. “ANR needs to get serious about issuing penalties that actually deter future violations of our environmental laws, rather than penalties that function as mere costs of doing business.”