Big Rock Gravel Act 250 ( 2012 )

State of Vermont
Superior Court—Environmental Division
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Big Rock Gravel Act 250 Permit } Docket No 45-3-12 Vtec
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Decision on the Merits
Pending before the Court is Michael Bernhardt’s (Appellant) appeal of a decision by the
District 8 Environmental Commission (the District Commission) granting Big Rock Gravel
Operations, Inc. (Applicant) a state land use permit (Act 250 permit) to operate an existing
gravel pit in the Town of Londonderry, Vermont (the Town). The gravel pit is located off of
Rowe Road (the Property) in the Town. In this appeal, Appellant opposes the application for an
Act 250 permit and asserts that the noise from the proposed gravel pit will result in undue air
pollution under Act 250 Criterion 1 and an undue adverse impact to aesthetics under Act 250
Criterion 8. (See Statement of Questions, filed Apr. 16, 2012.)
The Court conducted a site visit on August 7, 2012 to the Property, immediately
followed by a single day merits hearing at the Vermont Superior Court, Windham Civil
Division courthouse in Newfane, Vermont. Appearing at the site visit and trial were Big Rock
Gravel Operations, Inc., represented by its President Jennifer C. Howe; and Michael Bernhardt,
both appearing pro se.
Based upon the evidence presented at trial, including that which was put into context by
the site visit, the Court renders the following Findings of Fact and Conclusions of Law.
Findings of Fact
1. The Property, located on the east side of Rowe Road in the Town of Londonderry,
Vermont, is owned by Big Rock Gravel, LLC and is approximately 10 acres in size. Applicant
proposes its gravel extraction operations to take place in the central 4.5 acres of the Property.
2. The West River runs along the west side of Rowe Road, and therefore, Rowe Road is
located between the Property and the West River.
3. The Property is surrounded by forest to the north, east, and south.
4. The Property has been used for gravel pit operations since the late 1940’s, although at
times the pit has been inactive. When active, the level of activity has historically varied. The
pit’s existence is common knowledge.
5. The Property is located in the Town’s Rural Residential-3 (R-3) zoning district and a
Special Flood Hazard Area.
6. Applicant requests an Act 250 permit to commercially extract rock and crush it into
gravel for sale to municipalities and on the private market.
7. The proposal would limit blasting to aid rock extraction to one blast event per calendar
year.
8. The proposal would limit crushing and hammering activities to 10 working days per
year.
9. Working days, as relating to blasting and crushing/hammering, are limited to non-
holiday weekdays only with hours of operation restricted to 7:00 a.m. to 4:00 p.m.
10. The proposed rock extraction and crushing operations will generate noise from truck
traffic, rock drilling, blasting, rock hammering, rock crushing, and general heavy equipment
operations.
11. The equipment used in the rock extraction and crushing operations includes the
following: a jaw crusher, a cone crusher, a bucket loader, an excavator, a second excavator with
a hammer, a screener, and a track drilling machine.
12. During the merits hearing, literature was introduced into evidence relating to some of
the equipment which Applicant will use in is operations. This literature provides the following
noise data: a Model 1300 Maxtrak emits sound levels of 75 to 82 dBA at a distance of 65 feet; a
Model 1100 x 650 Premtrak emits sound levels of 77 to 86 dBA at distance of 65 feet; a Stanley
model MB50EXS hydraulic hammer with an output of 5000 pounds of impact energy emits 85
dBA at a distance of 52 to 72 feet.
13. Through the use of a retail consumer sound meter – more specifically a RadioShack
sound level meter – Applicant measured sound levels on June 27, 2012 at different locations
within and surrounding the active portions of the gravel pit with “all equipment running.”
Applicant testified to average readings at each location as follows:
a. Approximately in the center of the Property with the equipment in sight: 72 dB;
b. At the point of intersection of a trail head with Rowe Road, south of the
Property: 54 dB (the sound meter in exhibit Q.4. shows that the meter is set to the
“fast” response mode and the weighting is “C.” Applicant did not provide
information as to these details of the sound measuring);
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c. In the area of the Southeast corner of the Property: 64 dB;
d. In the area of the Southeast corner of the Property where the trail network is
closest to the operating pit (estimated by Applicant to be 600 to 800 feet from the
crusher): 57 dB; and
e. Within a field located to the north of the Bernhardt property, approximately
2,800 feet from the Property: LO indicating a sound level of less than 50 dB.
14. Applicant has not implemented or proposed any measures to reduce the level of noise
emanating from the rock extraction and crushing operations while the equipment is running or
in use.
15. Applicant’s witnesses who conducted the sound measuring and who testified as to the
sound measuring are not sound engineers nor do they have any training in sound measuring or
sound data. When asked questions regarding the meaning of “dB” and “dBA” these witnesses
could not explain the measurements or units of measurements.
16. The sound measurements in this matter were not accompanied with baseline or
background noise measurements.
17. As the distance from the equipment increases sound levels decrease.
18. Rowe Road is a fairly flat roadway, truck traffic traveling on that road will generate less
noise than trucks climbing hills.
19. Mr. Bernhardt resides to the east of the Property off of Under Mountain Road. The
Bernhardt property is approximately 1,400 feet from the Property, while the Bernhardt house is
approximately 2,800 feet from the Property.
20. Mr. Bernhardt can hear pit activities at his property, both outside on his land and within
his house; specifically in his home office. The activity he hears is both general operating noise
and crushing activities.
21. Mr. Bernhardt provided no data or evidence of sound measurement on his property or
within his house.
22. Sandra and James Wilbur own much of the land surrounding the Property, including
the land located between the Property and the Bernhardt property.
23. The increase in elevation between the Property, specifically the operating pit floor, and
the Bernhardt house is estimated by Applicant to be approximately 300 feet.
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24. Neighboring land uses include a car repair business and associated junk and scrap yard,
a sporadically operating gravel pit (Rowe Pit) located within 3000 feet to the north on Rowe
Road, and an inactive gravel pit (Cobb Pit) also located to the north on Rowe Road.
25. Rowe Road is a single lane dirt road which receives little traffic. As one travels south on
Rowe Road, the gravel pits are visible to the east and the road itself narrows and is less
traveled. Rowe Road dead-ends to the south of the Property.
26. On the west side of the West River in the area of the Property there are an inactive
junkyard and some areas where trees have been cleared.
27. An old dump is located near the trail head of the Vermont Rail Trail, which is in the
vicinity of the Property.
28. The Wilburs’ property contains a network of trails which tend to surround the Property.
The trail network can be used to travel to Brattleboro.
29. The trail network is frequently used. Mr. Bernhardt walks these trails every other day
and snowshoes the trails in the winter. Some of Mr. Bernhardt’s family members also use the
trails. Mr. Bernhardt regularly sees others using the trails. Some horse riding takes place on the
trails.
Conclusions of Law
The legal questions presented in this appeal are whether Applicant’s proposed use of the
Property will result in undue air pollution as it relates to noise under Act 250 Criterion 1 and
result in an undue adverse impact to aesthetics relating to noise under Act 250 Criterion 8.
I. Burden of Proof
As discussed further below, the burden of proof in this matter has bearing on the
Court’s ultimate conclusions. Thus, at the outset of our legal analysis we review the burden of
proof in Act 250 proceedings. Regardless of who has the burden of proof on a particular issue,
the applicant always has the burden of producing evidence sufficient to enable the Court to
make the requisite positive findings on all of the criteria. Re: EPE Realty Corp. and Fergessen
Mgmt., Ltd., No. 3W0865-EB, Findings of Fact, Concl. of Law, and Order, at 18 (Vt. Envtl. Bd.
Nov. 24, 2004) (citing Re: Peter S. Tsimortos, No. 2W1127-EB, Findings of Fact, Concl. of Law,
and Order, at 13 (Vt. Envtl. Bd. Apr. 13, 2004); Re: McLean Enter. Corp., No. 2S1147-1-EB, Mem.
of Decision, at 43 (Sept. 19, 2003)). Specifically with respect to Criterion 8, if an applicant
satisfies the initial burden of production, then the ultimate burden of proving that a project does
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not conform to Criterion 8 rests upon the project’s opponents. 10 V.S.A. § 6088(b); In re Rivers
Dev. Act 250 Appeal, No. 68-3-07 Vtec, slip op. at 33 (Vt. Envtl. Ct. Mar. 25, 2010) (Durkin, J.)
(citing In re Route 103 Quarry, No. 205-10-05 Vtec, slip op. at 8 (Vt. Envtl. Ct. Nov. 22, 2006)
(Durkin, J.), aff’d, 2008 VT 88, 184 Vt. 283).
II. Criterion 1
The noise a proposed project may generate can be of such an adverse level as to
constitute air pollution. See Re: Bull’s-Eye Sporting Center, No. 5W0743-EB, Findings of Fact,
Concl. of Law, and Order, at 14 (Vt. Envtl. Bd. Feb. 27, 1997) (“The test for undue air pollution
caused by noise is whether the noise has ‘impacts rising above annoyance and aggravation to
cause adverse health effects such as hearing damage.’”) (quoting Re: Talon Hill Gun Club’ Inc.
and John Swininem, No. 9AO192-2-EB, Findings of Fact, Concl. of Law, and Order, at 8 (Vt.
Envtl. Bd., Jun. 7, 1995)). Noise analysis under Criterion 1 focuses primarily on the health and
safety impacts of noise, rather than on its welfare impacts, which are considered under
Criterion 8. E.g., Re: City of Montpelier and Ellery E. & Jennifer D. Packard, No. 5W0840-6-
WFP, Findings of Fact, Concl. of Law, and Order, at 21 (Vt. Envtl. Bd. May 22, 2000); Casella
Waste Mgmt., Inc., and E.C. Crosby & Sons, Inc., No. 8B0301-7-WFP, Findings of Fact, Concl. of
Law, and Order, at 29 (May 16, 2000).
The former Environmental Board reviewed many Act 250 applications for land use
permits where noise from a proposed project was at issue. Several of these matters were
proposed rock and sand quarries similar to the proposal now before our Court. The prior
decisions of the Environmental Board established thresholds or limits of noise levels evidencing
compliance or non-compliance with Criterion 1. 10 V.S.A. § 8504(m) directs us to give these
prior decisions of the Environmental Board the same weight and consideration as prior
decisions of this Court.
When evaluating noise impacts under Criterion 1, the Environmental Board relied on
the United States Environmental Protection Agency (EPA) Report, Information on Levels of
Environmental Noise Requisite to Protect Public Health and Welfare with an Adequate Margin of Safety,
EPA document No. 5 50/9-74-0004, dated March 1974, for guidance. See Re: Paul and Dale
Percy, No. 5L0799-EB, Findings of Fact, Concl. of Law, and Order, at 7-8, 17 (Vt. Envtl. Bd. Mar.
20, 1986). Specifically, the Environmental Board adopted EPA’s established adverse health
impact standard of 70 dBA for 24 hours each day, 365 days a year over a lifetime for noise to be
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an unacceptable level of air pollution under Criterion 1. Re: Pike Indus., Inc. and Inez M.
Lemieux, No. 5R1415-EB, Findings of Fact, Concl. of Law, and Order, at 32 (Vt. Envtl. Bd. Jun. 7,
2005); Casella Waste Mgmt., No. 8B0301-7-WFP at 29–30. Furthermore, the Environmental
Board determined in at least one case that maximum noise levels less than 90 decibels did not
constitute air pollution under Criterion 1. Wildcat Constr. Co., No. 6F0283-1-EB, Findings of
Fact, Concl. of Law, and Order (Vt. Envtl. Bd. Oct. 4, 1991), aff'd, In re Wildcat Constr. Co., 160
Vt. 631 (1993).
As detailed in the Findings of Fact section above, during the trial Applicant provided
literature from manufacturers concerning estimated noise produced by certain pieces of
equipment. This equipment emits sound levels ranging from 75 to 85 dBA at distances ranging
from 52 to 72 feet. Applicant also introduced sound measurements from its operating quarry.
By using a retail consumer sound meter, Applicant measured sound levels at different locations
within and surrounding the active gravel pit. The average readings measured sound levels
ranging from 54 to 72 dB within or close to the operating pit, while sound levels measured
approximately 2,800 feet from the Property were less than 50 dB.
The credibility of Applicant’s sound measurements is suspect. First, the sound meter
pictured in Applicant’s Exhibit Q.4 shows that the meter is set to the “fast” response mode and
the weighting is “C,” but Applicant did not provide information as to these details of the sound
measuring or explain how these settings relate to the measuring of noise levels. Furthermore,
Applicant’s witnesses could not answer specific questions relating to its sound measurement or
the units of measurements. Appellant, however, did not provide any noise data or
measurements of his own to contradict Applicant’s evidence. Appellant did testify as to
Applicant’s lack of evidence concerning background noise and suggested that Applicant’s noise
data was insufficient.
Based upon the totality of evidence before the Court, we find that Applicant has
produced evidence sufficient to enable the Court to make positive findings on Criterion 1. We
conclude that while noise from the proposed project operations might be apparent to Appellant
and other adjoining property owners and neighbors, the noise will be less than the EPA-
established adverse health impact standard of 70 dBA or higher for 24 hours each day, 365 days
a year over a lifetime. While the equipment used within the pit may generate noise in excess of
70 dBA, there are several aspects of the proposed operations which eliminate the potential for
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adverse health effects. First, the operations are limited to non-holiday weekdays only and
hours of operation are restricted to 7:00 a.m. to 4:00 p.m.; only one blast event is allowed per
calendar year; and crushing and hammering activities are limited to 10 working days per year.
Furthermore, the noise levels at or in excess of the EPA’s 70 dBA limit occur in close proximity
to the equipment itself. As the distance from the equipment increases, sound levels decrease.
Appellant’s property is 1,400 feet from the Property, and Appellant’s house is 2,800 feet from
the pit Property. Thus, the proposed project noise will not cause adverse health effects and is,
therefore, not air pollution in violation of Criterion 1.
III. Criterion 8
To receive an Act 250 land use permit, an applicant must provide evidence sufficient to
enable the Court to find that the proposed project will 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). If an applicant satisfies the initial burden of production, then the
ultimate burden of proving that a project does not conform to Criterion 8 rests upon the
project’s opponents. 10 V.S.A. § 6088(b); In re Rivers, No. 68-3-07 Vtec, slip op. at 33 (citing In re
Route 103 Quarry, No. 205-10-05 Vtec, slip op. at 8 (Vt. Envtl. Ct. Nov. 22, 2006) (Durkin, J.),
aff’d, 2008 VT 88, 184 Vt. 283).
The cornerstone of an analysis under Criterion 8 is the question: “[w]ill the proposed
project be in harmony with its surroundings—will it ‘fit’ the context within which it will be
located?” Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB, Findings of Fact, Concl. of
Law, and Order, at 18 (Vt. Envtl. Bd. Nov. 4, 1985). The question of whether noise produced by
a proposed project is out of character with its setting is a qualitative determination, involving an
examination of both the type of noise that the project will generate, particularly when compared
to neighboring land uses. Hannaford Bros. Co. and Southland Enterprises, Inc., No. 4C0238-5-
EB, Findings of Fact, Concl. of Law, and Order, at 16 (Vt. Envtl. Bd. Apr. 9, 2002); Re: Barre
Granite Quarries, LLC and William and Margaret Dyott, No. 7C1079(Revised)-EB, Findings of
Fact, Concl. of Law, and Order, at 79-80 (Vt. Envtl. Bd. Dec. 8, 2000) (internal citations omitted).
Whether a proposed project will cause an undue adverse noise impact is assessed by
conducting a two step evaluation. First, the Court reviews whether a project would have an
“adverse impact” by reviewing the nature of the project’s surroundings, the compatibility of the
project’s design with those surroundings, and the locations from which the project can be
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viewed or heard. See Hannaford Bros., No. 4C0238-5-EB, at 15–18 (analyzing a project under
Criterion 8 for potential adverse effect of noise and signage on aesthetics); Barre Granite
Quarries, No. #7C1079(Revised)-EB, at 79-80. These factors must be weighed collectively in
deciding whether the proposed project is in harmony with—i.e., “fits”—its surroundings. The
land uses which surround a project are, therefore, crucial to the analysis.
The project’s surroundings include neighboring land uses such as a car repair business
and associated junk and scrap yard; a sporadically operating gravel pit (Rowe Pit) located
within 3000 feet to the north on Rowe Road; and an inactive gravel pit (Cobb Pit) also located to
the north on Rowe Road. Rowe Road itself is a single lane dirt road which receives little traffic.
As one travels south on Rowe Road, the gravel pits are visible to the east, and the road narrows
and is less traveled. Rowe Road dead-ends to the south of the Property. On the west side of the
West River in the area of the Property there is an inactive junkyard and some areas where trees
have been cleared. An old dump is located in the area of the trail head of the Vermont Rail
Trail, which is in the vicinity of the Property. The adjoining Wilbur property contains a
network of trails which partially surround the Property. The trail network can be used to travel
to Brattleboro and portions of it are frequently used by Appellant, his family, and others. Some
horse riding takes place on the trails. Appellant’s property is approximately 1,400 feet east of
the Property, while Appellant’s house is approximately 2,800 feet to the east. The Property is
surrounded to the north, east, and south by uniformly dense forest.
The question of whether noise is adverse focuses on whether the noise is out of character
with the setting. See Barre Granite Quarries, No. 7C1079(Revised)-EB, at 79-80. Applicant’s
proposed rock extraction and crushing operations will generate noise from truck traffic, rock
drilling, blasting, rock hammering, rock crushing, and general heavy equipment operations.
These sounds will be impulsive, harsh, and intermittent. The area around the quarry includes
residences, wooded areas, and hiking trails. Even though the area also includes intermittent
noise from nearby gravel operations, on the whole we conclude that adding more sporadic
gravel pit noise would produce an adverse effect. See John and Joyce Belter, No. 4C0643-6R-EB,
Findings of Fact, Concl. of Law, and Order, at 14 (Vt. Envtl. Bd May 28, 1991) (concluding that
drilling and blasting would be more than the neighborhood was used to on a regular basis,
thus, the noise would have an adverse effect on aesthetics).
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Having concluded that the proposed project’s noise is adverse, the Court conducts the
second evaluative step by reviewing whether the adverse effect is undue. Hannaford Bros., No.
4C0238-5-EB, at 15.
To determine whether an adverse effect is undue, the Court reviews the following
factors:
1) Does the project violate a clear, written community standard intended to
preserve the aesthetics or scenic, natural beauty of the area?
2) Does the project offend the sensibilities of the average person? Is the
project offensive or shocking because it is out of character with its surroundings
or significantly diminishes the scenic qualities of the area?
3) Has the Applicant failed to take generally available mitigating steps
which a reasonable person would take to improve the harmony of the proposed
project with its surroundings?
See Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB, Findings of Fact, Concl. of Law,
and Order, at 19–20 (Vt. Envtl. Bd. Nov. 4, 1985).
The parties did not provide any evidence of the existence of community standards
intended to preserve the aesthetics or scenic, natural beauty of the area. As Appellant has the
burden to show that a project does not conform to Criterion 8, we conclude that the proposed
project does not violate any community standard.
We next consider whether the noise will be so out of character with its surroundings or
so significantly diminish the scenic qualities of the area as to be offensive or shocking to the
average person. Re: Pike Indus., Inc. and William E. Dailey, Inc., No. 1R0807-EB, Findings of
Fact, Concl. of Law, and Order, at 18–19 (Vt. Envtl. Bd. June 25, 1998). As discussed above,
adding more sporadic noise to an area that already experiences such noise would produce an
adverse effect. We cannot, however, say that the adverse effect is “shocking or offensive to the
average person.” Residents in the area are used to hearing sporadic quarry operation noise
from three properties in the area, including the subject Property, so the additional noise –
although adverse – is not unduly so.
With respect to mitigating steps to reduce the level or impact of noise from the proposed
activities, we note the following facts. The quarry will be shielded by trees and vegetation to
the north, east, and south. Appellant’s property is 1,400 feet from the Property, and Appellant’s
house is 2,800 feet from the Property. Limitations placed on the proposed activities serve to
mitigate the impact of noise. Limitations include restricting the proposed operations to non-
holiday weekdays only and restricting hours of operation to 7:00 a.m. to 4:00 p.m., permitting
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only one blast event per calendar year, and limiting crushing and hammering activities to 10
working days per year. Taken as a whole, these factors adequately mitigate noise impacts and
improve the harmony of the proposed project with its surroundings.
Considering the evidence before the Court as a whole, including both an examination of
the type and frequency of noise that the project will generate and the neighboring land uses, we
conclude that the proposed project, as conditioned, “fits” within this area. As noted above,
Appellant has not provided evidence of noise levels or other data demonstrating that noise
levels from the proposed project create an undue adverse aesthetic impact. See 10 V.S.A.
§ 6088(b) (placing ultimate burden of showing a project’s nonconformance to Criterion 8 on the
project’s opponents). Thus, we conclude that the proposed project complies with Criterion 8.
Applicant’s evidence regarding the noise measurements and noise levels in this matter is
of limited credibility. Thus, in reaching our positive finding under Criterion 8, we rely on prior
Act 250 approvals which concluded that noise from a proposed quarry does not have undue
adverse impacts on aesthetics where the noise is limited to no more than 55 dB(A) Lmax at
surrounding residences and no more than 70 dB(A) Lmax at the quarry property line. Barre
Granite Quarries, No. 7C1079(Revised)-EB, at 81–82; see also Re: Alpine Stone Corporation,
ADA Chester Corp. and Ugo Quazzo, No. 2S1103-EB, Findings of Fact, Concl. of Law, and
Order, at 32 (Vt. Envtl. Bd., Feb. 4, 2002) (noise from a proposed quarry does not have undue
adverse impacts on aesthetics where the noise is limited to 55 dB(A) Lmax at areas of frequent
human use). Thus, to ensure that the proposed project does not result in an undue adverse
impact from noise, we condition this approval under Criterion 8 as follows:
Any noise generated by Applicant’s quarry shall not exceed 55
dB(A) Lmax at surrounding residences and shall not exceed 70
dB(A) Lmax at the quarry property line.
The Court establishes this condition and leaves Applicant to determine how those levels
will be met. See Re: George and Diana Davis, No. 2S1129-EB, Findings of Fact, Concl. of Law,
and Order, at 11 (Vt. Envtl. Bd. Dec. 15, 2004); Hannaford Bros., No. 4C0238-5-EB, at 23. Should
Appellant or other interested parties experience noise impacts exceeding these levels, they may
come forward with evidence of non-compliance with the maximum noise level. Such evidence
may be used in consideration of enforcement against Applicant for violating this approval or
lead to revocation of the land use permit.
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Conclusion
For the reasons discussed above, we conclude that Applicant’s proposed project does
not result in undue air pollution relating to noise under Act 250 Criterion 1 and that the
proposed project does not result in an undue adverse impact to aesthetics relating to noise
under Act 250 Criterion 8. We condition our positive findings under Criteria 1 and 8 on the
following maximum noise levels:
Any noise generated by Applicant’s quarry shall not exceed 55 dB(A) Lmax at
surrounding residences and shall not exceed 70 dB(A) Lmax at the quarry
property line.
A Judgment Order accompanies this Decision. This completes the current proceedings
before this Court.
Done at Berlin, Vermont, this 28th day of November, 2012.
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Thomas G. Walsh, Environmental Judge
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