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)
Appeal from Superior Court, Environmental Division Thomas G.
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.
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
1. Appellants, Neighbors for Healthy Communities (Neighbors),
appeal the Environmental Division's 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
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.
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),
[https://perma.cc/2CN6- 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
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
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)
[https://perma.cc/7EQD- 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 ...