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In re North East Materials Group, LLC

Supreme Court of Vermont

August 23, 2019

In re North East Materials Group, LLC/Rock of Ages Corporation Act 250 Permit (Russell Austin, Pamela Austin, Julie Barre, Marc Bernier, et al., Collectively, Neighbors for Healthy Communities, Appellants)

          On Appeal from Superior Court, Environmental Division Thomas G. Walsh, J.

          Elizabeth M. Tisher, Kenneth J. Rumelt, Rachel L.B. Stevens, and Emma R. Okell, Student Clinician (On the Brief), Environmental and Natural Resources Law Clinic, South Royalton, for Appellants.

          Alan P. Biederman of Biederman Law Office, Meredith, New Hampshire, and James P.W. Goss of Facey Goss & McPhee P.C., Rutland, for Appellees.

          PRESENT: Skoglund, Robinson, Eaton and Carroll, JJ., and Dooley, J. (Ret.), Specially Assigned

          EATON, J.

         ¶ 1. Appellants, Neighbors for Healthy Communities (Neighbors), appeal the Environmental Division's[1] decision granting an Act 250 permit application to appellees, North East Materials Group, LLC (NEMG) and Rock of Ages Corp. (ROA), for a rock-crushing operation in Graniteville in the Town of Barre. Neighbors argue that the court erred in granting NEMG's application because the proposed operation does not comply with either Act 250 Criterion 1, with respect to air pollution due to silica dust, or Criterion 8, with respect to noise from off-site truck traffic. We affirm.

         ¶ 2. The facts as found by the court are as follows. ROA is a quarrying operation comprised of several adjacent quarries that occupy approximately 930 acres in Barre and 230 acres in Williamstown. The "historic individual quarries" on the site have been in operation for over 100 years. NEMG's rock-crushing operation-the project at issue-is a component of ROA's quarrying operation. It makes use of the waste material from ROA's quarrying activities by reducing the waste to usable and salable sizes. Crushing entails drilling, blasting, removing, and transporting rocks to the crusher equipment. Material is often trucked from the crushing operation even when the plant is not operating.

         ¶ 3. NEMG's crushing operation is in Graniteville-a small village in the town of Barre comprised of Upper and Lower Graniteville. Upper Graniteville is located uphill from, and to the southeast of, NEMG's crushing operation. Upper Graniteville contains a playground and church. Lower Graniteville is located downhill from, and to the northwest of, the crusher site. Graniteville Road, which NEMG utilizes for transporting the crushed rock from the crushing site, passes through both Upper and Lower Graniteville and is one of several roads that transect the ROA property. It is officially designated as a truck route by the Town of Barre from the ROA quarry access road and continuing through Lower Graniteville. Upper and Lower Graniteville each contain a dense cluster of residences, some of which are located near the NEMG crushing site- that is, within approximately 1325-3000 feet of the site-or adjacent to the ROA quarry-access road. Several of these residences belong to Neighbors in this appeal.

         ¶ 4. The crushing operation began running in 2009 after the District 5 Environmental Commission (the Commission) issued a jurisdictional opinion determining that no Act 250 permit was required for the project. In February 2014, NEMG received an air-pollution control permit to construct (the air-pollution permit) for the crushing operation from the Agency of Natural Resources (ANR). The air-pollution permit included a condition requiring the installation of wet suppression controls and the operation of such controls as necessary. In August 2016, this Court held that the crushing operation did require an Act 250 permit, contrary to the 2008 jurisdictional opinion. In re N. E. Materials Grp. LLC (NEMG II), 2016 VT 87, ¶ 22, 202 Vt. 588, 151 A.3d 766.[2] NEMG ceased the crushing operation and applied to the Commission for an Act 250 permit.

         ¶ 5. The Commission issued a decision in June 2017, stating that the project complied with all Act 250 criteria except Criterion 1 and Criterion 8 with respect to noise and dust. NEMG appealed the Commission's decision to the Environmental Division. The court reversed the Commission's denial and issued the decision and judgment order now on appeal. In that decision, the court made findings of fact regarding the project's impact on air pollution and aesthetics, and it determined that NEMG's crushing operation complied with Criterion 1 and Criterion 8. Relevant to this appeal, the court concluded that the project's dust emissions complied with Criterion 1 (air pollution) based on data derived from air-emissions modelling that demonstrated NEMG's adherence with the requirements of its air-pollution permit would ensure the project's compliance with the Vermont Ambient Air Quality Standards (VAAQS). The court also concluded the project's off-site truck noise complied with Criterion 8 (aesthetics) based on modelling that measured the increase in average and instantaneous noise due to truck traffic. The court issued an order mandating conditions to mitigate the impacts of noise and dust and remanded the matter to the Commission "for the ministerial act of issuing a Land Use Permit." Neighbors appeal the court's order, arguing that the court erred in concluding NEMG's rock-crushing operation complied with Criterion 1 and Criterion 8, and ask this Court to reverse and deny NEMG's Act 250 Permit.

         ¶ 6. We review the Environmental Division's legal conclusions de novo and its findings of fact for clear error. In re Korrow Real Estate, LLC, 2018 VT 39, ¶ 17, 207 Vt. 274, 187 A.3d 1125. We uphold the court's legal conclusions "if they are reasonably supported by the findings." Id. (quotation omitted). "We will defer to the court's factual findings and uphold them unless, taking them in the light most favorable to the prevailing party, they are clearly erroneous." In re Wagner & Guay Permit, 2016 VT 96, ¶ 9, 203 Vt. 71, 153 A.3d 539 (quotation omitted), overruled on other grounds by In re Confluence Behavioral Health, LLC, 2017 VT 112, 206 Vt. 302, 180 A.3d 867. Factual findings are erroneous if there is no credible evidence to support them or if they are "internally inconsistent." Borden v. Hofmann, 2009 VT 30, ¶ 11, 185 Vt. 486, 974 A.2d 1249. "[T]he environmental court determines the credibility of witnesses and weighs the persuasive effect of evidence." In re Champlain Parkway, 2015 VT 105, ¶ 10, 200 Vt. 158, 129 A.3d 670.

         I. Criterion 8: Aesthetic Impact Due to Off-Site Truck Noise

         ¶ 7. First, we address Neighbors' argument that the court erred in concluding that off- site truck noise caused by NEMG's rock-crushing operation complies with Criterion 8. Specifically, Neighbors claim that NEMG's crushing operation generates a significant increase in high-decibel off-site truck traffic and that the court erroneously applied this Court's holding in In re Application of Lathrop Ltd. Partnership I (Lathrop), 2015 VT 49, 199 Vt. 19, 121 A.3d 630, and the Environmental Board's ruling in In re OMYA, Inc. when assessing the project's traffic and noise impacts. No. 9A0107-2-EB, slip op. at 15 (Vt. Envtl. Bd. May 25, 1999), []).

         ¶ 8. To obtain an Act 250 permit, Criterion 8 requires an applicant to provide evidence sufficient to enable the court to find that the proposed project "[w]ill not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics, historic sites or rare and irreplaceable natural areas." 10 V.S.A. § 6086(a)(8) (emphasis added). We have recognized that truck noise is an aesthetic concern under Criterion 8, and our case law outlines a well-established framework for determining project compliance with the Criterion 8 requirements. See Lathrop, 2015 VT 49, ¶ 74.

         ¶ 9. Analysis of a project's aesthetic impacts under Criterion 8 begins with the two-part "Quechee test" formulated by the Environmental Board in In re Quechee Lakes Corp., Nos. 3W0411-EB, 3W0439-EB, slip op. at 19-20 (Vt. Envtl. Bd. Nov. 4, 1985), [ 4FUB]. "Under the Quechee test, a project violates Criterion 8 if: (1) the proposed project will have an adverse aesthetic impact and (2) that impact will be undue." Lathrop, 2015 VT 49, ¶ 74 (emphasis added).[3]

         ¶ 10. To determine whether a proposed project will have an adverse impact under the first prong of the Quechee test, the reviewer-whether the Environmental Commission or Environmental Division-considers whether "the proposed project [will] be in harmony with its surroundings, "-in other words, "will it 'fit' the context within which it will be located?" Quechee Lakes Corp., Nos. 3W0411-EB, 3W0439-EB, slip op. at 18. To that end, the reviewer looks at how the project fits within the context of its area in terms of size, scale, nature of use, and various off-site impacts. Id. If the reviewer determines that a project fits within its aesthetic context under the first prong of the Quechee test, then the project will not have an adverse aesthetic impact and complies with Criterion 8. If the proposed project does pose an adverse impact, then the reviewer must assess whether the adverse impact is undue. Id. at 19.

         ¶ 11. Under the second prong of the Quechee test, an adverse impact is undue if:

(1) it violates a clear written community standard intended to preserve the aesthetics or scenic, natural beauty of the area; (2) it offends the sensibilities of the average person; or (3) the applicant has failed to take generally available mitigating steps that a reasonable person would take to improve the harmony of the proposed project with its surroundings.

Lathrop, 2015 VT 49, ¶ 74 (alterations and quotations omitted); see also Quechee Lakes Corp., Nos. 3W0411-EB, 3W0439-EB, slip op. at 19-20. Here, NEMG has the initial burden of producing evidence sufficient for the reviewing body to make affirmative findings that the project complies with Criterion 8, and Neighbors bear the burden of persuasion. In re Times & Seasons LLC, No. 3W0839-2-EB, slip op. at 38 (Vt. Envtl. Bd. June 2, 1986) [ 2EWP]; see also 10 V.S.A. § 6088(b) (explaining "burden shall be on any party opposing the applicant with respect to [Criterion 8] to show an unreasonable or adverse effect").

         ¶ 12. When assessing noise impacts under Criterion 8, two noise measurements are relevant to our analysis-Lmax and Leq(n). Lmax is the maximum noise level that will occur, irrespective of its duration; simply put, Lmax measures instantaneous or sudden bursts of noise. Instantaneous noise levels more accurately demonstrate what people are actually hearing as opposed to an average sound reading over any period of time. Because Lmax measures sound levels only at one very short interval of time, it is generally not accepted for assessing cumulative noise impacts over longer periods of time. Such cumulative noise impacts are usually measured using Leq(n). Leq(n) is the maximum noise level that will occur as averaged over a period of time, (n). For example, Leq(one-hour), which NEMG's expert used to measure noise emitted by off-site traffic here, measures the weighted sound impact of multiple noise events (trucks passing a given location) over a one-hour period. Lmax and Leq(n) are measured in decibels (dB or dBA). Lathrop, 2015 VT 49, ¶ 77. Both of these measurements were applied to assess the crushing operation's compliance with Criterion 8 in this case.

         ¶ 13. Here, the court applied the Quechee test to determine whether the crushing operation at issue complied with Criterion 8. In doing so, the court addressed the increase in both the level and frequency of noise due to off-site truck traffic generated by the crushing operation. After reviewing the testimony and exhibits, the court expressly found "that Leq 1-hr information will provide assistance when determining the impacts of truck traffic, considered along with Lmax data, data concerning the frequency of truck trips, neighboring witness testimony, and all other factors." Applying this Court's decision in Lathrop, the court concluded that the noise levels from the off-site truck traffic alone would not result in an adverse aesthetic impact under the first prong of the Quechee test because the noise levels would" 'fit' within the character of the surrounding area, which is . . . currently characterized by industrial uses and the sounds that are associated with industrial uses." Neighbors do not challenge this aspect of the court's conclusion.

         ¶ 14. However, the court determined that the increase in frequency of noise caused by the project's off-site truck traffic would constitute an adverse aesthetic impact. The court stated that "[w]hile instantaneous Lmax sound levels of new trucks from the Project will be identical to the existing sound levels of trucks currently traveling on the roadways[, ] the increase in frequency will be apparent, even when considering the existing industrial character of the surrounding area." In other words, even though the instantaneous noise caused by each of NEMG's passing trucks is the same as the instantaneous noise emitted by pre-existing trucks travelling along the route, the increase in the number of trucks traversing the route, and ...

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