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

Citation: 2019 VT 55Docket: 2018-249

Court: Supreme Court of Vermont; August 23, 2019; Vermont; State Supreme Court

Original Court Document: View Document

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An opinion from the Vermont Supreme Court is subject to motions for reargument and formal revision before publication. The case involves the appeal by Neighbors for Healthy Communities against the Environmental Division's decision to grant an Act 250 permit for a rock-crushing operation by North East Materials Group, LLC (NEMG) and Rock of Ages Corp. (ROA) in Graniteville, Barre. Neighbors contend that the operation violates Act 250 Criterion 1 regarding air pollution from silica dust and Criterion 8 concerning noise from truck traffic. The court affirmed the permit's granting.

The facts indicate that ROA's quarrying operation spans approximately 1,160 acres, with historic quarries in operation for over a century. NEMG's project processes waste from ROA's activities and involves drilling, blasting, and transporting rock. The site is situated near residential areas in Upper and Lower Graniteville, with homes located between 1,325 and 3,000 feet from the operation. 

NEMG commenced operations in 2009 based on a jurisdictional opinion stating no Act 250 permit was needed. However, in 2014, NEMG obtained an air-pollution control permit from the Agency of Natural Resources, which mandated wet suppression controls. A 2016 court ruling determined that an Act 250 permit was indeed required, leading NEMG to halt operations and seek the necessary permit.

In June 2017, the Commission found that a project met all Act 250 criteria except for Criterion 1 (air pollution) and Criterion 8 (aesthetics) concerning noise and dust. NEMG appealed this decision, and the Environmental Division reversed the Commission's denial, concluding that NEMG’s crushing operation adhered to both criteria. The court's findings indicated that dust emissions complied with Criterion 1, supported by air-emissions modeling showing adherence to Vermont Ambient Air Quality Standards (VAAQS). Additionally, it found that off-site truck noise met Criterion 8 based on modeling of noise increases from truck traffic. The court mandated conditions to mitigate noise and dust impacts and ordered the Commission to issue a Land Use Permit.

Neighbors contested this ruling, asserting that the court mistakenly concluded compliance with Criteria 1 and 8, and sought to reverse NEMG’s Act 250 Permit. The review of the Environmental Division’s legal conclusions is de novo, while its factual findings are assessed for clear error, with deference given to the court’s determinations unless they lack credible evidence or are inconsistent. 

The court first addressed the Neighbors' argument regarding off-site truck noise, claiming it significantly increased due to NEMG's operations and that the court misapplied previous rulings in its assessment. Under Criterion 8, applicants must demonstrate that their project will not have an undue adverse effect on aesthetics or natural beauty. Truck noise is recognized as an aesthetic concern, and compliance is evaluated using the "Quechee test," which determines if a project causes an adverse aesthetic impact and if that impact is undue.

To assess adverse impacts of a proposed project under the first prong of the Quechee test, the reviewer evaluates if the project is in harmony with its surroundings, considering factors such as size, scale, and nature of use. The Barre Granite standard, which establishes noise thresholds (70 dBA at the property line and 55 dBA outside areas of frequent human use), is applied to determine adverse impacts. The court confirmed that this standard pertains to the first prong, not the second prong concerning undue impacts. 

The second prong defines an adverse impact as undue if it (1) violates clear community aesthetic standards, (2) offends average sensibilities, or (3) lacks reasonable mitigation efforts by the applicant. NEMG must provide evidence for the project’s compliance with Criterion 8, while the burden of persuasion lies with the Neighbors opposing the project.

Noise impacts are analyzed using two key measurements: Lmax and Leq(n). Lmax measures the maximum instantaneous noise level, capturing sudden bursts, while Leq(n) averages noise levels over a specified duration, reflecting the cumulative impact of multiple noise events. In this case, the court utilized the Quechee test to evaluate the crushing operation's compliance with Criterion 8, specifically considering the noise generated by off-site truck traffic. Although the court found that the noise levels from truck traffic would not produce an adverse aesthetic impact, as they conformed to the industrial character of the area, it determined that the increased frequency of truck traffic would adversely affect the aesthetic environment. The court noted that while the instantaneous Lmax levels of new trucks matched those of existing trucks, the overall increase in truck frequency would not blend with the existing noise context, leading to a conclusion of adverse impact from the project’s off-site traffic.

The court analyzed whether the off-site truck traffic's adverse impacts were undue, applying the second prong of the Quechee test. It determined that the noise generated from off-site truck traffic did not breach any clear community standards, as no evidence was presented to support such standards. The court concluded that an average person would not be shocked by the slight increase in sound levels, especially given the industrial nature of the area and the project’s restricted operational hours. Mitigation measures, including limitations on truck operations and alternate routes, were deemed sufficient. NEMG's reduction of truck numbers from 150 to 100 daily, averaging 60 per day, further supported this conclusion. The court found that, with these mitigating factors, the noise impact complied with Act 250 Criterion 8.

On appeal, Neighbors contended that the court misapplied the Lathrop standard by considering both Lmax and Leq(1-hour) measurements for noise assessment instead of solely Lmax. The court disagreed, affirming that using multiple data types is permissible under the Lathrop precedent. It emphasized the importance of factoring in instantaneous noise levels as they affect personal experience, referencing previous cases like OMYA, where significant peak noise levels were deemed adverse. The court reiterated that an analysis of instantaneous noise and the frequency of high-decibel events is critical when evaluating compliance with Criterion 8.

Lathrop mandates that reviewers consider Lmax when evaluating noise compliance with Criterion 8, emphasizing the need to account for the disruption caused by instantaneous noise from truck traffic rather than relying solely on average noise levels. The Lathrop decision permits reviewers to incorporate other credible data beyond Lmax measurements. In the current case, the court adhered to this standard, finding that while the project’s noise impacts were adverse, they were not undue. The court based its conclusions on expert testimony, particularly from Eddie Duncan, who indicated that the Lmax noise from the project’s trucks would match the existing noise levels from other trucks using the same route, with estimated Lmax levels between 66 and 82 dBA. The court concluded that the instantaneous Lmax levels would remain unchanged despite increased truck traffic, with the primary alteration being the frequency of truck passes during operational hours.

Additionally, the court recognized that Lmax alone provides a limited perspective, as it reflects only the noise at a single moment. Therefore, it considered the cumulative noise impacts in relation to the area's existing background noise from similar vehicles and opted to analyze the overall impact by using both Lmax and longer-term equivalent sound measurements, such as Leq(n). This dual approach allowed the court to comprehensively assess the noise implications of the increased truck traffic.

The court found that NEMG's trucking operation would result in increased truck traffic producing noise levels between 66 and 82 dBA Lmax, with a modest increase of 1-4 dBA over an hour. Testimony from local residents indicated minimal impact from the trucking, and the court noted the noise context of the well-traveled Graniteville Road, determining that the truck noise would blend into this pre-existing environment without shocking an average person. NEMG's mitigation efforts were deemed reasonable, and the court highlighted that the Neighbors did not propose alternative measures to reduce noise.

Although the court acknowledged that the increase in truck frequency would have an adverse effect, it concluded that this impact was not "undue." The court’s analysis complied with the precedent set in Lathrop, considering both Lmax and Leq(n) factors. The Neighbors' claim that the court failed to evaluate the impact of individual trucks on local quality of life was countered by the court's application of the Quechee test, which found that the increase, while adverse, would not be shocking due to the industrial nature of the area. Testimony from residents along the trucking route supported this finding.

The Neighbors also argued that the truck traffic increase exceeded standards set by the Environmental Board in the OMYA case, where a significant percentage increase in truck traffic was deemed undue. They contended that the current increase greatly surpassed that in OMYA, adversely affecting the Graniteville community. However, the court's findings were upheld as the Neighbors’ differing interpretation of the testimony did not undermine the court's conclusions.

The Board's decision in OMYA did not create a definitive standard for assessing when an increase in noise becomes unduly adverse. Instead, it emphasized the importance of considering the specific characteristics and context of the affected area when applying the second prong of the Quechee test. In OMYA, the Environmental Board determined that the proposed increase in truck traffic would adversely affect the Brandon Village Historic District, violating Criterion 8. The Board focused on the unique dual nature of Brandon Village—being both a historic area and a major thoroughfare—establishing that while some truck traffic is acceptable, an increase of 170 truck trips would be excessive, threatening the village's character.

In the current case, the trial court reviewed evidence regarding truck traffic on Graniteville Road but did not evaluate the overall percentage increase as argued by the Neighbors. The court dismissed the Neighbors' claim that the increase in off-site traffic violated Criterion 8, based on their interpretation of the OMYA decision. Unlike the historic context of Brandon, the area in question is an industrial zone with a long history of quarry operations. Consequently, the court found that the increased truck traffic would not shock the average person in Graniteville, and there was no clear community standard against such noise. Additionally, the court noted that NEMG's trucks utilize various roads and are taking measures to mitigate noise impacts. As such, the court's application of the second prong of the Quechee test was appropriate, and the OMYA ruling did not detract from its findings.

Neighbors argue that the court erred in concluding that NEMG’s rock-crushing operation complied with Criterion 1 regarding air pollution. They assert that several findings were clearly erroneous due to lack of evidence, implausibility, and internal inconsistency, claiming that without these findings, there was insufficient evidence for compliance. Neighbors also contend that the Environmental Division overlooked precedent by not independently evaluating the wet suppression system's functionality, which is crucial for mitigating dust impacts.

Criterion 1 requires proof that a project will not cause "undue water or air pollution," defined as exceeding normal levels. Determining "undue" pollution is fact-specific, influenced by pollution characteristics, area context, compliance with standards, and pollution reduction measures. Compliance with government air standards is significant but not determinative.

The court’s findings on the wet suppression system's operation were supported by evidence, indicating it would function effectively. The court noted that NEMG was required to implement this system under its air-pollution permit and had successfully operated similar systems previously, reinforcing its credibility.

Neighbors claimed the court imposed an excessively high standard by requiring demonstration of specific air-quality violations. However, the court clarified that the burden was on NEMG to prove no undue pollution would occur, and it found the evidence sufficient to meet this burden. Neighbors failed to substantiate their claims of undue pollution.

The court's findings on both Criterion 1 and Criterion 8 were upheld as credible and legally sound. Consequently, the court's decision affirming NEMG’s compliance with both criteria is affirmed.

Applicants for an Act 250 permit must demonstrate compliance with Criterion 1 as outlined in 10 V.S.A. § 6088(a). Under § 6086(d) and Act 250 Rule 19, certain permits from the Agency of Natural Resources (ANR) create a presumption of compliance with specific Act 250 criteria. Notably, Rule 19(E)(2)(a) establishes that an air pollution control permit from ANR presumes that a project will not result in undue air pollution per Criterion 1. This presumption indicates that the project is not detrimental to public health concerning the specific requirements for which the permit was granted; however, it is rebuttable.

To challenge this presumption, opponents must present admissible evidence allowing for a rational inference that the project may cause undue pollution. If the presumption is successfully rebutted, the applicant then bears the burden of proof for compliance under relevant criteria, with the permit serving merely as evidence.

The court upheld its factual findings, noting a deferential review standard, despite objections from neighbors regarding the reliance on expert opinions, particularly regarding the reliability of EPA's AP-42 data used in AERMOD modeling for emissions projections. The court affirmed that AERMOD is the EPA's preferred air-quality modeling method and that AP-42 provides credible air emissions factors to estimate emissions from various sources. The court recognized variations in data quality as assessed by the EPA within the AP-42 framework.

Factors based on a larger number of observations and more reliable tests receive higher ratings, while those based on fewer observations or extrapolated data are rated lower. The EPA indicates that AP-42 emission factors are less accurate than direct measurements and advises against using them as source-specific permit limits or for compliance determinations. Neighbors challenge Mr. Hinkley’s reliance on AP-42 for his AERMOD model, but the court finds that his use of this data does not undermine its conclusions. The EPA neither recommends nor disapproves of AP-42 for permitting or compliance, recognizing its utility in developing emission control strategies and estimating emissions despite its limitations. Mr. Hinkley testified extensively about the reliability of AP-42, acknowledging some data had “Poor” ratings but concluded the overall reliability was “Average.” He explained that lower ratings stemmed from the non-representative sampling of industry data. The court also upheld findings that the project’s silica dust projections were within safe margins, crediting Mr. Hinkley’s explanation of the wet suppression system's effectiveness, which was modeled to remove 89% of silica dust, with only 5.5% of respirable dust emitted into the air. Hinkley’s modeling, even under worst-case scenarios, indicated no undue air pollution would result from the project.

Mr. Hinkley determined that silica emissions from the crushing operation would not present a health risk, supported by Method 9 opacity testing at the site, indicating compliance with safe silica-dust production standards. The court found no clear error in the neighbors' claims. Hinkley defended the reliability of the AP-42 factors, highlighting their extensive use over forty years and asserting that if they were unreliable, the EPA would not utilize them. The court regarded Hinkley’s explanations as credible and scientifically grounded. Although neighbors argued for a margin of error in Hinkley’s projections, he clarified that his approach already incorporated an array of data points, effectively accounting for such a margin. The court was not required to mandate additional findings on this matter. 

Neighbors also contended that the court should reverse its Criterion 1 determination due to a lack of findings on the wet suppression system's functionality, paralleling issues in the Hinesburg Hannaford case. In that case, the court had relied on an expert's unsupported assertions regarding compliance with standards while ignoring contradictory evidence. This earlier case was remanded due to the failure to address unchallenged evidence of potential system ineffectiveness.

The court found sufficient evidence from Mr. Hinkley’s modeling and projections to support the conclusion that the wet suppression system would effectively reduce dust emissions from NEMG's operations, and that any remaining dust would not cause undue harm. Unlike the Hinesburg Hannaford case, the court did not rely solely on generalized expert testimony, as it considered specific observations and multiple opacity tests conducted by Mr. Hinkley during simultaneous operation of all equipment components.

The court assessed the Neighbors' photo and video evidence as unrepresentative and of limited utility, citing the variable nature of environmental conditions and the difficulty in attributing dust sources. It noted that some visual evidence was gathered when the project was not operational, making it impossible to determine the origin of the dust. Neighbors contested the court’s findings regarding this evidence, arguing that it contradicted testimony about dust emissions from the crusher. However, the court maintained that the assessment of witness testimony and evidence weight is within its discretion, stating that while some witnesses reported adverse effects from dust, others did not, and there was insufficient evidence to definitively link the dust in the photos to NEMG’s operations. Witnesses indicated that the dust may have originated from the ROA tract, but no clear connection to NEMG was established.

The court ruled that it could not determine the source of airborne dust from the provided photos and videos due to conflicting testimony and the state of the evidence, rendering these materials of limited value. Neighbors contended that the court improperly favored Method 9 visual-opacity tests over their photographic evidence, asserting both represented "snapshots in time." However, Method 9 testing, mandated by the EPA, is recognized as a reliable standard for measuring particulate emissions and was supported by extensive testimony regarding its methodology and reliability. The court maintained that the similarities between the two forms of evidence did not undermine its conclusions on the credibility of Neighbors’ photos and videos.

The court's factual findings were upheld, leading to the rejection of Neighbors' claims that these findings inadequately supported the court's conclusion regarding Criterion 1. Neighbors further argued that the court misapplied the legal standard for assessing undue air pollution, referencing past Environmental Board cases that emphasize experience-based analyses. They claimed the court imposed an excessively high burden of proof and overlooked the real impacts of the crushing operations, equating them with existing dust levels and incorrectly evaluating the severity of impacts on nearby residents. The court, however, considered testimony from local residents about their experiences with dust from the operation, finding that some did not notice significant changes.

The court evaluated testimonies, photographs, and videos from residents regarding the impact of dust from NEMG's rock-crushing operation on their property enjoyment. While some residents reported no significant harm from the dust, the court deemed their testimonies credible. The analysis considered several factors, including NEMG's dust reduction measures such as wet suppression, opacity testing, and maintaining a water truck. The court also assessed whether the dust levels were within expert-defined acceptable ranges and weighed local residents' accounts of their experiences. Although Neighbors contended that the court focused excessively on regulatory compliance, the court clarified that its decision was not solely based on NEMG's possession of an ANR permit but involved a comprehensive burden-shifting analysis. Ultimately, the court found no error in concluding that NEMG's operation adhered to Act 250 Criterion 1 and Criterion 8, affirming its compliance. The permit included specific dust control measures, including wet suppression at aggregate-transfer points, paving access road segments, using a sweeper for road maintenance, implementing an automatic sprinkler system for dust control, and conducting Method 9 opacity testing.