NE Materials Grp, LLC A250 - Decision on the Merits ( 2018 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 75-6-17 Vtec
NE Materials Grp, LLC et al A250 DECISION ON THE MERITS
This is an appeal of a decision denying an Act 250 permit application for a rock crushing
operation in the Town of Barre, Vermont. At issue is whether the proposed operation complies
with Act 250 Criterion 1 with respect to air pollution, and Criterion 8 with respect to noise and
dust.
The applicants, North East Materials Group, LLC (NEMG) and Rock of Ages (ROA)
Corporation (collectively, Applicants), are represented by James P.W. Goss, Esq., David R.
Cooper, Esq., and Alan P. Biederman, Esq.
Other parties are Neighbors for Healthy Communities1, represented by Elizabeth M.
Tisher, Esq. and Vermont Law School Environmental and Natural Resources Law Clinic students
Margaret Galka and John Wadleigh (both granted limited admission on motion), the Natural
Resources Board (NRB), represented by Peter J. Gill, Esq., and the Agency of Natural Resources
(ANR), represented by Elizabeth Lord, Esq. and Megan O’Toole, Esq.
Procedural History
The District 5 Environmental Commission Coordinator determined in a December 17,
2008 jurisdictional opinion, No. 5-01, that the proposed crushing operation did not require an
Act 250 permit. On appeal, this Court agreed that the operation was not subject to Act 250
jurisdiction. In re N.E. Materials Grp. LLC A250 JO #5-21, No. 143-10-12 Vtec, slip op. at 14–15
(Vt. Super. Ct. Envtl. Div. Apr. 28, 2014) (Walsh, J.). That decision was then reversed and
remanded for further findings by the Vermont Supreme Court. In re N.E. Materials Grp. LLC Act
250 JO #5-21, 2015 VT 79, ¶ 35, 199 Vt. 577.
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The neighbors are Lori Bernier, Marc Bernier, Russell Austin, Pamela Austin, Melyssa Danilowicz, Padraic
Smith, Suzanne Smith, Suzanne Bennett, Gustave Osterberg, Julie Barre, and Rock Pariseau (together, Neighbors).
1
On remand the parties declined to reopen the evidence and we again concluded that an
Act 250 permit was not needed. N.E. Materials Grp. LLC A250 JO #5-21, No. 143-10-12 Vtec at
20–21 (Dec. 23, 2015). The Supreme Court reversed and determined that NEMG requires an Act
250 permit to operate the crusher at its current location. In re N. E. Materials Grp. LLC Act 250
JO # 5-21, 2016 VT 87, 202 Vt. 588. NEMG filed an application for an Act 250 permit with the
District 5 Environmental Commission which concluded in a June 14, 2017 decision that the
project complied with all Act 250 criteria except Criterion 1 with respect to air pollution, and
Criterion 8 with respect to noise and dust. NEMG appealed the District Commission’s decision
to this Court.
The Court held a bench trial from January 9–12, 2018 at the Vermont Superior Court,
Civil Division, Washington Unit in Montpelier, Vermont. No site visit was conducted. Based
upon the evidence presented at trial, the Court renders the following Findings of Fact and
Conclusions of Law.
Findings of Fact
At trial, the parties stipulated and agreed that the Court may find certain facts numbered
1 through 49 filed with the Court as an executed stipulation. We have incorporated these facts;
however, they have been renumbered and relocated within the Court’s following factual
findings. Additionally, at times, the Court supplemented the stipulated facts with additional
detail.
General Findings
Quarrying and Crushing Activity Generally
1. Granite quarrying is a process of cutting and extracting large blocks of stone for sale or
to be further processed into monuments or other industrial products and then sold. The large
blocks of granite suitable for monuments and similar uses are referred to as "dimension stone."
2. Quarrying activity moves deeper into the earth over time. Typically, higher quality
material is found the deeper one mines a quarry.
3. The depth of a quarry is limited by the ability of derricks to lift the blocks out of the
quarry or by the horizontal acreage available to build roads down into the quarry.
4. At the inception of a quarry, the overburden soil and rock are removed to expose the
underlying granite. The granite closest to the surface is called "bedding" and is typically
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unsuitable for sale or use as dimension stone. It is typical for ROA to need to remove 80 to 200
feet of bedding to reach suitable dimension stone. Removal of overburden soil and bedding is
referred to as quarry "development." Development is expensive and produces considerable
volumes of soil and stone which is either trucked off-site or piled on-site.
5. This overburdened soil is waste material unless the rock component is crushed into a
usable and salable product.
6. Up to 80 percent of quarry material is waste.
7. "Grout" is waste granite which is not suitable for high-end dimension stone.
8. Crushing makes use of the waste from development material, including grout, by
reducing the material to usable and salable sizes.
9. Crushing entails drilling, blasting, removing, and transporting rock to the crusher
equipment. While many of today's crushing operations use portable equipment, material is
typically moved from the extraction area to the crusher.
The Quarry Site
10. ROA corporation is a quarrying operation comprised of several smaller individual
quarries adjacent to one another and aligned in a roughly north–south configuration.
11. These quarries are now all aggregated as a single parcel under ROA ownership and
operation. The operation is comprised of approximately 930 acres in Barre, Vermont and 230
acres in Williamstown, Vermont.
12. Several roads transect the ROA property, including Graniteville Road. Roads also connect
work areas throughout the ROA property.
13. The operation of individual quarries has occurred on the site for over 100 years. Some
of the historic individual quarries were previously owned and operated by the Boutwell, Milne
& Varnum Corporation, the E.L. Smith & Company, the Wetmore & Morse Granite Company,
and the Wells-Lamson Quarry Company.
14. Three sites, including the Smith Quarry and the former Wells-Lamson crusher site, are
located north of Graniteville Road. Two quarrying sites, including the Adams Quarry, are located
south of Graniteville Road.
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15. Also located south of Graniteville Road are the ROA rock processing and storage yard, a
previously permitted hot mix plant owned by NEMG, and the NEMG crushing operation at issue
in this appeal.2
Graniteville
16. Graniteville is a small village in the Town of Barre, Vermont. It is comprised of Upper
Graniteville and Lower Graniteville. Upper Graniteville is located uphill from, and to the
southeast of the site of, NEMG’s proposed crushing operation. Lower Graniteville is located
downhill from, and to the northwest of, the crusher site.
17. Graniteville Road passes through both Upper and Lower Graniteville. Graniteville Road
is officially designated as a Truck Route by the Town of Barre from the ROA access and leading
through Lower Graniteville (i.e. turning left onto Graniteville Road when leaving the ROA access).
18. Upper and Lower Graniteville each contain a dense cluster of residences. Upper
Graniteville contains a playground and church, and Lower Graniteville contains a general store,
church, post office, playground, and school bus stop.
19. The Barre Town Forest is located to the north of Graniteville Road. The Town Forest
contains an extensive network of trails and is a regional destination for biking, hiking, skiing,
snow-shoeing, and other recreational activities.
Neighbors
20. Lori and Marc Bernier live at 11 Park Street. Their house is approximately 3000 feet from
the crusher site. Marc and Lori moved into their current home in 1993. Prior to that, they lived
with Lori's mother, Suzanne Bennett, at 5 Park Street.
21. Lori has lived on Park Street in Graniteville for more than 55 years.
22. Padraic and Suzanne Smith live at 2 Pearl Street. Their house is located approximately
2107 feet from the crusher site. They have lived in their home since 1989.
23. Alice Cloud has lived at 743 Graniteville Road since 1992. Her house is adjacent to the
ROA quarry access road.
2
The Act 250 permit for the hot mix plant was litigated in a separate docket. See In re N.E. Materials
Group Amended A250 Permit, No. 35-3-13 Vtec (Vt. Super. Ct. Envtl. Div. Apr. 18, 2016) (Walsh, J.).
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24. Pamela and Russell Austin live at 735 Graniteville Road. The house is approximately 1325
feet from the crusher site. Pamela Austin has lived on Graniteville Road since 1982. Before that,
she lived two houses down on Graniteville Road since 1969.
25. Lee Larson has lived at 737 Graniteville Road since 1982. Her house is situated between
Alice Cloud’s and Pamela and Russell Austin’s.
26. Rock Pariseau lives at 696 Graniteville Road. His house is located approximately 1700
feet from the crusher site.
27. Melyssa Danilowicz lives at 856 Graniteville Road. Her house is located approximately
2695 feet from the crusher site.
28. Suzanne Bennett lives at 5 Park Street. Her house is located approximately 2977 feet
from the crusher site. She has lived in her current home since 1961.
29. Gustave Osterberg lives at 769 Pirie Road. His house is located approximately 1500 feet
from the crusher site.
30. Julie Barre lives at 38 Cogswell Street. Her house is located approximately 2721 feet from
the crusher site.
The Proposed Crushing Operation
31. The crushing operation began running in 2009 after the December 17, 2008 jurisdictional
opinion determined that no Act 250 permit was required.
32. In 2011, NEMG crushed on 53 days. In 2012, NEMG crushed on 83 days, and in 2013,
NEMG crushed on 43 days.
33. On February 19, 2014, the Appellants received an Air Pollution Control Permit to
Construct for the crushing operation from ANR (the Air Pollution Permit). The Air Pollution
Permit included a condition requiring the installation of wet suppression controls, and their
operation as necessary.
34. Material is often trucked from the crushing operation even when the crusher plant is not
operating. Trucks transported material from the crusher operation on 226 days in 2012, 220
days in 2013, 188 days in 2014, 215 days in 2015, and 202 days in 2016.
35. The operation ceased in August 2016 after the Supreme Court held that an Act 250
permit is required. The crushing operation ran for two days in December 2016 to perform sound
testing.
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36. Applicants submitted an Act 250 application for the crushing operation on September
30, 2016.
37. The proposed crushing operation is situated between the Smith and Adam quarries,
close to the ROA rock processing at the stone trimming and cutting yard, inventory storage
and loading area, the operating Adams stone quarry, and the hot mix asphalt plant.
38. The crushing plant has one jaw crusher, two secondary/tertiary cone crushers, one
secondary/tertiary impact crusher, and related screeners, feeders, and conveyors.
39. The plant uses two loaders, one haul truck, two excavators, and a rock hammer. The
rock hammer would be used only when the crushing plant is not operating. The primary crusher
breaks large material into smaller pieces that fit into the jaw crusher.
40. After rock is crushed in the primary crusher, the secondary and tertiary crushers reduce
the rock further in size. The crushed rock is then moved from the crusher to screens that sort
the crushed rock by size. The sorted crushed rock is stockpiled on site for pickup by customers.
41. NEMG does not own transport trucks. Material is transported off-site by customer-
owned trucks. NEMG owns one truck that hauls grout.
42. Some crushed rock from the proposed crusher will be trucked to a hot mix asphalt plant
located on ROA property via internal quarry roads.
43. Most trucks entering the site to load crushed material, also called aggregate, for
transport off site will enter from Lower Graniteville by coming up Graniteville Road, turning right
onto the ROA access road and passing by properties owned by Padraic Smith, Pamela and Russell
Austin, Lee Larson, and Alice Cloud.
44. Trucks will then exit via one of three routes. First, trucks will go out the access road and
turn left on Graniteville Road towards Lower Graniteville. Second, trucks will exit via Pirie Road,
without using the access road. Finally, trucks will go out the access road and turn right on
Graniteville Road passing properties owned by Lori and Mark Bernier, Suzanne Bennet, and
Melyssa Danilowicz.
45. The proposed hours of operation are “6AM – 4PM Monday through Saturday (Rock of
Ages operational hours) with a maximum of 20 Saturdays per year – crusher primarily operates
April 1 – December 15 – trucks may transport aggregate from the site year round.”
46. The application proposes a maximum stone production of 250,000 tons per year.
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47. The application proposes a maximum of 150 off-site truck trips by loaded customer
trucks per day, with an average over the year of 60 per day. The application limits loaded
customer trucks using Quarry Hill Road “until Quarry St/Route 14 intersection signalization
project is completed by VTrans” to 70 per day. In addition, the application proposes that
“exceedances of the above may occur with permission of the District Coordinator.”
48. At trial, Applicant agreed to reduce the maximum number of off-site truck trips by loaded
customer trucks to 100 per day, with an average over the year of 60 per day.
Criterion 1: Air Pollution
The Air Pollution Control Permit
49. The Project is a Minor Air Pollution Source under the Vermont Air Pollution Control
Regulations.
50. The Project’s 2014 Air Pollution Permit is intended to ensure that the crusher operation
will comply with the Vermont Air Quality Standards and will not cause undue air pollution.
51. The Air Pollution Permit limits the operation to 250,000 tons of aggregate throughput
and 47,000 gallons of fuel consumption per year. The assumptions in the permit are based on
the operation’s maximum capacity.
52. The Air Pollution Permit limits air contaminant emissions as follows: 2.6 tons per year of
particulate matter and particulate matter of 10 micrometers in size or smaller (PM/PM 10); <0.1
tons per year sulfur dioxide (SO2); 4.6 tons per year oxides of nitrogen measured as NO 2
equivalent (NOx); 2.5 tons per year carbon monoxide (CO); <0.1 tons per year volatile organic
compounds (VOCs); <10/25 tons per year hazardous air pollutants (HAPs).
53. The Air Pollution Permit explains that, because the combined emissions of PM/PM 10, SO2,
NOx, CO, and VOCs is less than 10 tons / year, federal air pollution control regulations do not
require the crushing operation to obtain a Permit to Operate.
54. The Air Pollution Permit conditions include the following:
(2) At a minimum, the Permittee shall install wet suppression controls at the
following locations, or use equivalent control measures as approved by the
Agency: All crusher inlet or discharge points; all conveyor to conveyor transfer
points unless the transfer point is fully enclosed sufficient to prevent emissions
in excess of those allowed under this permit; all screen deck inlet points unless
the screen decks have screen deck covers sufficient to prevent emissions in
excess of those allowed under this permit or the screens are wash screens, and;
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all transfer points on conveyors leading to dry drop piles. The Permittee shall
operate said controls as necessary and shall take whatever other means are
necessary to prevent visible emissions in excess of those allowed under this
permit. The water control system shall be maintained in good working order with
sufficient water pressure and flow rates to achieve optimum dust control
efficiency.
(3) The Agency may require the installation and operation of additional water
control points on the crushing Crusher or other dust control measures based on
Agency inspections of the actual operations at this facility.
...
(15) Fugitive Emissions: The Permittee shall take reasonable precautions at all
times to control and minimize emissions of fugitive particulate matter from the
operations at the facility. Reasonable precautions to be taken shall include, but
may not be limited to, the following measures or other equally effective
measures:
a) The unpaved traffic and parking areas at the facility shall be maintained
by the application of water and/or generally accepted chemical
treatments, such as calcium chloride unless otherwise restricted, which
are applied at a rate and frequency to effectively limit visible dust
emissions;
b) The paved traffic and parking areas at the facility shall be periodically
maintained as necessary to prevent build up of material that may
generate fugitive dust emissions. Sweeping shall be performed in a
manner to minimize fugitive dust air emissions, and may include lightly
wetting the paved surface immediately before sweeping, or preferably by
the use of a vacuum, regenerative or high efficiency sweeper;
c) All trucks owned, operated or under the control of the Permittee shall be
securely covered when operated on public roadways when loaded with
materials that may generate fugitive dust
...
(16) Nuisance and Odor: The Permittee shall not discharge, cause, suffer, allow
or permit from any source whatsoever such quantities of air contaminants or
other materials which will cause injury, detriment, nuisance or annoyance to any
considerable number of people or to the public or which endangers the comfort,
repose, health or safety of any such persons or the public or which causes or has
a natural tendency to cause injury or damage to business or property. The
Permittee shall not discharge, cause, suffer, allow or permit any emissions of
objectionable odors beyond the property line of the premises.
Testimony of John Hinckley
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55. NEMG's expert witness with respect to air pollution, dust, and particulate matter is John
Hinckley, Q.E.P., of Resource Systems Group, Inc. (RSG). Mr. Hinckley has education and training
in air pollution control and the assessment and designing of industrial and commercial projects
with relevant air pollution control measures.
56. Mr. Hinckley has extensive knowledge and experience with respect to Vermont Air
Pollution Control Permits, the Vermont Ambient Air Quality Standards (VAAQS), regulations and
practices of the Vermont Agency of Natural Resources with respect to Air Pollution Control,
Federal Clean Air Act statutes, and regulations including the National Ambient Air Quality
Standards (NAAQS). He is experienced and knowledgeable about particulate matter, the
pollutant primarily at issue in this case under the VAAQS and NAAQS (which regulates PM 2.5
and PM10) and silica ambient air levels under the VAAQS.
57. Mr. Hinckley has been trained and certified in United States Environmental Protection
Agency (EPA) testing for visual opacity using the Method 9 test required for EPA testing for
particulate matter under 40 CFR Parts 60, 61, and 62, and specifically in 40 CFR 60.675(b)(2), in
which Method 9 is described in Appendix A-4 to 40 CFR 60.675. The interplay of the Project and
Method 9 is discussed further below.
58. Mr. Hinckley is further trained in and has extensive experience modeling air pollution
with AERMOD modeling software. AERMOD modeling is approved by the EPA as its preferred
air quality modeling method. See, Final Rule amending 40 CFR Part 51 "This action includes
enhancements to the formulation and application of the EPA 's preferred near-field dispersion
modeling system... " [referring to AERMOD] Fed. Reg. vol 82, No. 10, Page 5182 January 17,
2017.
59. In addition to his general air pollution experience and training, Mr. Hinckley has
extensive hands-on experience with the equipment used at the Project. Mr. Hinckley prepared
and filed the application for the Air Pollution Permit granted to the Project, did the estimates of
emissions and other analyses that were submitted with the Air Pollution Permit applications,
and personally examined the equipment associated with the Project. While the Project was
operating, and during a test operation in December 2016, Mr. Hinckley has repeatedly observed
the equipment in operation, including the test conditions where all equipment components
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were operated simultaneously. Mr. Hinckley has also personally examined and monitored the
wet suppression equipment on the Project machinery. Testimony of John Hinckley.
60. While not required by any state or federal regulation, in connection with the Act 250
proceeding now pending before the Court, NEMG engaged Mr. Hinckley to perform AERMOD
air emissions modeling for the Project. That modeling was relied upon and described to the
Court by Mr. Hinckley. Some aspects of the data from that modeling is also before the Court.
Id.
61. The AERMOD modeling not only modeled air emissions from the Project alone, but also
included and described the cumulative air pollutant emissions from all industrial activities in the
crusher vicinity including activities at the Project itself, at numerous ROA operations in the area,
including major internal haul roads, and the NEMG hot mix plant, as well as a section of
Graniteville Road. Testimony of John Hinckley; Exhibits 12-26 AERMOD Calculation Worksheets.
62. The modeling assumed that all the operations being modeled were operating at
maximum capacity and all at the same time. This is a true demonstration of "worst possible
case" modeling and is an assumption least favorable to NEMG. Id.
63. The AERMOD model results indicate that emissions, including particulate matter and
silica, produced cumulatively by all the above sources are well within the VAAQS and NAAQS for
particulate matter at all off-site locations, including the properties of all the Neighbor Appellees
and the Town Forest. Testimony of John Hinckley; Ex. 43-46, AERMOD Results.
64. The EPA utilizes a method for calculating air emissions likely to be generated from
industrial sources called AP-42. AP-42 provides a method to compile air pollution emissions
factors. Emission factors are “representative value[s] that attempt[] to relate the quantity of a
pollutant released to the atmosphere with an activity associated with the release of that
pollutant." Ex. D (AP-42 Introduction). For example, the AP-42 assigns an emission factor to
each individual piece of equipment used in a rock-crushing operation. By adding up the emission
factors for each piece of equipment, one can estimate the amount of pollution caused by the
whole operation.
65. Different data are adjudged by EPA in AP-42 to be of better or lesser quality. Emission
factors are rated for reliability on a scale from A to E, with A being the highest rated (Excellent)
and E being the lowest rated (Poor). Generally, those factors based on a larger number of
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observations and more reliable tests are assigned higher ratings, whereas factors based on
fewer observations or that are extrapolated from other factors are typically rated lower. Ex. D.
66. AP-42 applies to numerous industries including mineral processing. AP-42 Chapter 11;
Testimony of John Hinckley.
67. AP-42 provides the investigator with data concerning emissions from various stages of
rock crushing. Mr. Hinckley relied upon certain AP-42 data information in creating his AERMOD
model. Id.
68. Certain aspects of the data relied upon had specific ratings of E (Poor) although the final
rating of the quality of such data was C (Average). Id.
69. Mr. Hinckley personally reviewed all of the data and their respective reliability ratings
and concluded that they were sufficiently reliable to use in his model. In particular, he noted
that some of the "Poor" quality ratings were based on the scarcity of data considered by EPA.
When he reviewed the quality of such scarce data, he determined that the actual testing done
was considered reliable. There just were not many tests done, which EPA cautioned makes the
data lower rated. Mr. Hinckley further opined that if the data were unreliable, EPA would say
so, rather than including the data in AP-42 as guidance for air pollution experts and
professionals. Mr. Hinckley also indicated, and the Court finds credible, that many AP-42 models
and estimates rely on data rated D (Below Average) or E. He further opined that within the field
of air pollution, such data is considered reliable, although the professional must use their
professional judgment when determining the use of such data and all other data. Id.
70. The Court finds Mr. Hinckley’s explanation of AP-42 and modeling helpful, reasonable,
credible, and based on science that guides air pollution professionals, including government
agencies and the EPA. The Court finds that Mr. Hinckley's model and expert opinion are valid
and persuasive evidence that undue air pollution will not result from the Project even when
taken cumulatively with all other air pollution sources in the area.
71. Mr. Hinckley noted that the Crusher is allowed to produce some dust without violating
the VAAQS or its Air Pollution Permit. Ex. 37 Air Pollution Permit, Conditions 11-13; Testimony
of John Hinckley.
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72. Mr. Hinckley supports the use of wet suppression at the Project as required by the Air
Pollution Permit. Wet suppression is the "best practice" method for reducing such dust to non-
problematic levels. Testimony of John Hinckley.
73. NEMG has paved the first 500 feet of the Project access road and uses water application
by a sprinkler system and sweeping on the road to reduce dust from trucks accessing Graniteville
Road from the Crusher site. Applicants also maintain a water truck on site to water down the
Crusher yard on days when dust from equipment movement is problematic. Testimony of John
Hinckley.
74. As noted above, the best and generally accepted test of whether particulate matter is
being emitted by the Project is the visual opacity methodology known as Method 9. See
Citations to 40 CFR above. Notably, the Air Pollution Permit requires use of Method 9 opacity
testing and other testing. Air Pollution Control Permit, Ex. 37, at Condition 17.
75. The Project was tested by Model 9 opacity testing in 2013, 2015 and 2016. Exhibits 5,
30–32 present the results of those tests, all of which the Crusher has passed. Additionally,
efficiency estimates show that wet suppression eliminates 89% of silica dust from the Crusher
emissions. Ex. 47. Therefore, 11% (100% - 89%) of the remaining dust emissions are emitted to
ambient air. Approximately half of the dust particles produced by the Crusher are respirable.
Ex. 27. Therefore, half of the 11% emitted (the particles not captured by wet suppression), or
5.5% of the total emissions, is respirable at the site of the Crusher. Silica constitutes 23.3%
(roughly one quarter) of the particles emitted.
76. No particular training is required to perform wet suppression. However, Mr. Hinckley
suggests that the supervisory personnel at NEMG's site be trained in Method 9 testing. That
would permit a test if and when visible dust of any significance was seen at the Project and
would encourage application of additional wet suppression when needed.
Neighbors’ and Linden Witherell testimony.
77. Neighbors testified that the crushing operation and associated truck traffic generate
silica dust, which enters their homes, interferes with their use and enjoyment of their
properties, and prevents them from enjoying outdoor activities around Graniteville. Neighbors
supported their testimony with photographs and videos of dust at the crusher site, dust
blowing off-site, and trucks kicking up dust along Graniteville Road.
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78. Many (but not all) of the neighbors testified that while there was dust at their homes
before, after NEMG began crushing the quality and quantity of dust became worse.
79. The Court finds these photographs and videos to be of limited utility in determining
whether the Project complies with air pollution regulations. The photos and videos are
snapshots in time, or brief moments on video. Many of them are modified by magnification,
and therefore difficult to put into perspective. Some were taken when the project was not
operating, and in many it is not possible to distinguish the source of visible airborne dust (i.e.
whether the dust was produced by the crushing operation proposed here).
80. Some Neighbors who live along the truck route also testified to smelling diesel
emissions in their homes and along Graniteville Road.
81. Neighbors also offered Mr. Linden Witherell as an air expert. Mr. Witherell’s testimony
focused on the public health impacts of silica dust and diesel emissions. He explained that the
location of the crushing operation, coupled with the topography of the area, allows for the
airborne silica particles to travel off site to neighboring residences. He testified that the Air
Pollution Permit does not address the cumulative impacts of silica emissions, and that there is
no information on the quantity of silica dust residents of Graniteville are actually breathing in.
He also offered that wet suppression, which is required by the Air Pollution Permit, is not an
effective dust control mechanism because particles become re-suspended by trucks or other
machinery driving over the site.
82. Mr. Witherell offered testimony about silicosis, a disease involving scarring of the lung
tissue caused by the long-term inhalation of silica particles. He admitted, however, that there
are currently no available studies on whether silica particles from a quarry or rock-crushing
operations have any negative health impact, or any negative health impact, on surrounding
populations.
Criterion 8: Aesthetics
Zoning and Town Plan
83. The location of the Crusher is designated as "Earth Extraction/Industrial" under both the
Barre Town Plan and the Barre Zoning Regulations.
84. Neighbors live in an area zoned residential under the Barre Town Plan and the Barre
Zoning Regulations.
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85. The Barre Town Plan provides as a land use goal: "Consider requiring all industrial uses
to be reviewed as conditional uses to help mitigate potential conflict between them and
residential uses." Barre Town Plan, § 2.10.
86. The Barre Town Plan provides that the purpose of the industrial and earth resource
extraction designations is to “recognize significant existing patterns with regard to granite
quarrying and the extraction of gravel. Barre Town’s foundation sits on granite and the
importance of that resource is significant. Residential development patterns have, to a large
degree, been created because of the granite industry. . . . Industry is important to any
community’s economic development and it is important to find a balance between land uses
given the proximity of industrial land (including earth resource extraction) and highly dense
residential areas. Utilizing the conditional use process is a good way to help mitigate concerns.”
Id. at § 2.3.
87. Neighbors described Graniteville as a close-knit, friendly, and peaceful residential
community, surrounded by natural areas and wildlife, and a great, safe place to raise a family.
Upper and Lower Graniteville were focal points of the community and gathering places for
residents. Generations of families have remained in Graniteville or returned to Graniteville to
enjoy the peaceful environment.
Recent Historical Crushing at ROA
88. From July 1990 to November 1990 McCullough Crushing removed more than 55,000 tons
of crushed granite from the Adams quarry.
89. McCullough Crushing's equipment included a jaw crusher, a cone crusher, a conveyor,
and a screen. This equipment is similar to NEMG's current crushing equipment.
90. During the 1990s, McCullough's crushing took place in a similar area to NEMG's current
location. This activity included similar truck traffic.
91. In 1992 and 1993, Pike Industries, a crushing subcontractor, primarily crushed rock at the
northern Wells-Lamson parcel (off-site), but also crushed 18,118 tons of rock on the current
NEMG site.
Project Operations
92. The Project is located within the 100-year-old ROA quarry and immediately adjacent to
an active granite quarry hole, permitted hot mix plant, a rock cutting and shaping yard, a block
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storage and inventory area, compressor house, numerous active quarry haul roads and related
heavy equipment, blasting and truck operations.
93. The ROA quarry and its related industrial operations overwhelmingly define the
acoustical and dust-related aesthetic context of the area and of Upper and Lower Graniteville in
general. Ex. 1, Act 250 Application; Ex. 4 - 5 Aerial Photos; Trial Testimony.
94. Existing industrial operations at ROA, unrelated to the crushing operation proposed here,
already cause noise, dust and off-site truck traffic on Graniteville Road during ROA business
hours. The Project proposes to operate during those hours but will limit Saturday operations to
20 Saturdays per year.
95. Crushed material is typically transported off-site in dump trucks from its current location.
Dimension stone is typically transported on flatbed tractor trailer trucks. ROA’s dimension stone
operations also use dump trucks.
96. ROA’s dimension stone quarrying activities create noise, dust, and truck traffic.
97. Neighbors in the area of the crushing site experienced noise, dust, and traffic. Common
noises are material being loaded or unloaded. Dust accumulated on house windows, outside
furniture, lawns, and cars. When traveling on area roads, it is common to encounter dump
trucks on Graniteville Road traveling to or from the crushing activity.
A. Dust
98. Neighbors expressed general concerns regarding the aesthetic impact from dust at the
Project, including both dust from the Crusher itself and the dust from trucks exiting the Project
site and proceeding through Lower Graniteville. The Neighbors provided various photographic
and video exhibits of dust in support of their testimony. Opponent Testimony and Exhibits.
Neighbors generally testified that the dust effected their enjoyment of their properties. Id.
99. Mr. and Ms. Bernier and Ms. Bennett testified that dust accumulated both outside and
inside their respective homes. Testimony of Marc Bernier, Lori Bernier, and Bennett.
100. Mr. Smith, Ms. Danilowicz, and Ms. Austin testified that dust accumulated on the outside
areas of their respective properties. Testimony of Smith, Danilowicz, and Austin.
101. Mr. and Ms. Bernier, Ms. Danilowicz, and Ms. Austin testified that trucks from the
crusher cause further dust accumulation. Testimony of Marc Bernier, Lori Bernier, Danilowicz,
and Austin.
15
102. Mr. Bernier also testified that he can see dust from his home through the trees, when
the leaves have fallen. Testimony of Marc Bernier.
103. Lee Larson and Alice Cloud, the two closest neighbors to the Crusher, testified that they
do not find dust from the Crusher or from trucks exiting onto Graniteville Road to be annoying
or obtrusive. Ms. Larson, who is retired and spends significant amounts of time outdoors and
gardening at her home in the summertime, testified that she did not even know that the NEMG
Crusher had been established at the ROA property until objections were raised by the more
distant neighbors in this case. Testimony of Larson and Cloud.
104. The Air Pollution Permit includes the following specific mitigation measures as dust
control at the Project:
a. Use of wet suppression at all aggregate transfer points in the Crusher mechanism;
b. the paving of the first 500 feet of the Project access road;
c. the continued use of a sweeper on the Project road to remove excess dirt and mud
as needed;
d. the continued use of an automatic sprinkler system to keep the paved section of the
access road watered down during dry periods;
e. Method 9 opacity testing of the Crusher to ensure that problematic quantities of
dust are not being produced; and
f. the use of a water truck to control dust on adjacent haul roads.
105. The Barre Town Plan in effect on September 30, 2016 does not contain any clear written
dust-related community aesthetic standards. No party called the Court's attention to any other
clear written aesthetic standard with respect to dust effective in the Town of Barre which the
Project would violate. Ex. 82, Barre Town Plan.
B. Noise
106. NEMG presented expert testimony and evidence with respect to noise from Eddie
Duncan. Mr. Duncan is a Board-Certified Noise Control Engineer from RSG with a Bachelors
degree in Engineering Science and a Masters in Environmental Studies. Ex. 51, Eddie Duncan
Resume.
107. Mr. Duncan has done sound models for over 100 projects. His employer, RSG, conducts
follow up studies for much of its sound modeling as Quality Assurance/Quality Control (QA/QC)
of their sound modeling work. This follow up is done by comparing actual sound monitoring
16
data collected after a project is completed and comparing it to the predicted sound levels
described in modeling done before construction of the project. Testimony of Eddie Duncan.
108. Mr. Duncan conducted detailed two-day sound monitoring with respect to the Crusher
while it was operating during an approved sound test in December 2016 (hereinafter, the Sound
Study). This included measurement of background noise levels in the Project vicinity and
monitoring of the actual Crusher noise and its related equipment and operations over the two-
day period. He then modeled the impact of that noise on the surrounding area. The Sound
Study used the actual sound from Crusher and related equipment in its analysis, rather than a
generic sound source. Testimony of Eddie Duncan; Ex. 53 - 63, Sound Monitoring Results.
109. Mr. Duncan then modeled a worst-case noise scenario, that is, assuming that the
Crusher, all of the related equipment and the NEMG hot mix plant were operating at their
maximum levels simultaneously on the site. This is a scenario that is not likely to occur in real
world operation. Testimony of Eddie Duncan.
110. When designing and modeling the Project, Mr. Duncan considered methods to mitigate
the noise from the Project, including numerous scenarios utilizing many potential methods of
mitigation.
111. The model submitted to the Court incorporates the following noise mitigation measures,
which NEMG requests be imposed as conditions of Project approval:
a. The construction and maintenance of two aggregate stockpile berms
15.5 and 13 in height in the locations depicted on the scaled map
submitted as Exhibit 65.
b. Installation of sound barrier blankets on the primary crusher and the
primary screener as described on Exhibit 65, 74 and Exhibit 77 and as
depicted on Exhibits 66 - 73.
c. The installation of a rubber screen deck on the primary screener.
d. Installation of broad band back-up alarms on all NEMG onsite mobile
equipment.
e. Limiting the use of the freestanding rock hammer to periods when the
main Crusher plant is not operating as described in Exhibit 65.
f. Limitation of Crusher equipment and off-site truck operations to the
normal Rock of Ages business hours recited elsewhere herein.
Ex. 65, NEMG Crusher-Noise Mitigation; Testimony of Eddie Duncan.
112. In performing its sound modeling, RSG used the ISO 9613-2 Sound Standard, which is an
internationally recognized standard for modeling noise impacts from sound sources and is
17
commonly used by noise control professionals to predict noise from industrial operations. The
methodology is implemented using the CADNA A computer model, which has been relied upon
in innumerable cases for this purpose by District Commissions, the former Environmental Board
and the Environmental Division. The model considers surrounding terrain, vegetation,
topography on the site and similar factors which can influence sound propagation. Id.
113. The purpose of a proper sound model is to predict what the actual noise impacts from
the Project would be on the surrounding area under worst-case circumstances. Id.
114. When Mr. Duncan compared preliminary results of the sound model to actual results of
monitoring, he found that the predicted results from the model disagreed with the actual
monitoring results obtained. This is not uncommon. Just as the actual equipment noise levels
when measured may differ from more general data respecting types of equipment, it is
preferable to make certain adjustments in the model to conform to actual data. Mr. Duncan did
this. This is appropriate when one has both actual monitoring data from a site and theoretical
data from modeling the same site. This calls for application of sound professional judgment.
Otherwise, while one may have a perfect model as a theoretical exercise in modeling, that model
does not reflect actual noise produced from the site. Mr. Duncan made appropriate
adjustments to utilize both monitoring data and modeling. Id.
115. The former Environmental Board in In re Barre Granite Quarries, No. 7C1079 (Rev.)-EB
(Dec. 8, 2000) designated a general standard for on-site noise which satisfies aesthetic concerns
under Criterion 8 for commercial and industrial projects (the "Barre Granite standard"). Under
the Barre Granite standard, on-site noise from a prospective project under normal
circumstances should not exceed 55 dBA Lmax at homes and areas of frequent human use, or
70 dBA Lmax at the property line. The Vermont Supreme Court and the Environmental Division
have held that the Barre Granite standard is to be applied flexibly and may be departed from
depending on the acoustical context of the project area. In re Lathrop Ltd. P’ship I, 2015 VT 49,
¶¶ 81–82, 199 Vt. 19.
Noise from the Crushing Operation, Excluding Off-site Trucking
116. RSG’s sound model showed that noise from the on-site crushing operations did not
exceed 55 dBA Lmax under worst-possible case conditions at homes and areas of frequent
human use or 70 dBA at the property line. Ex. 77, Noise Assessment Summary; Ex. 76, Model
18
Results Summary Areas of Frequent Human Use. RSG specifically prepared a summary of the
noise levels from the Project at all the Appellees’ homes. All of these levels are below the Barre
Granite noise standard even when the Crusher and the hot mix plant are operating
simultaneously. Testimony of Eddie Duncan; Ex. 75, Model Results Summary Appellees Homes.
117. At the Bernier, Bennett, Danilowicz, Barre, Austin, Pariseau, Smith, and Osterberg
residences, sound modeling, from crushing operation only, recorded a range of 38 to 52 dBA
Lmax. From crushing operations and asphalt operations, sound model results at these
residences ranged from 40 to 52 dBA Lmax. Finally, from rock hammer and asphalt operations,
results at these residences ranged from 39 to 51 dBA Lmax. Id.
118. In multiple QA/QC follow up studies performed with respect to Mr. Duncan's modeling,
the actual sound monitoring done after the Project was built confirmed the accuracy of Mr.
Duncan’s pre-construction modeling methods. Post-construction sound monitoring by RSG of
projects modeled pre-construction by RSG shows that the modeling approach used by RSG and
by Mr. Duncan typically over-predicts noise impacts, that is, the noise impacts ultimately
experienced in modeled area are typically less than what the RSG sound model predicted. Id.
119. Mr. Duncan's results were challenged by Neighbors' noise expert, Les Blomberg of the
Noise Pollution Clearinghouse in Montpelier. Mr. Blomberg has a Bachelors degree in
Philosophy and Mathematics and a Masters degree in Environmental Philosophy. He has
worked in the area of noise for 20 years. Testimony of Blomberg.
120. Mr. Blomberg opined that Mr. Duncan’s model relies on incorrect assumptions, and the
noise levels that it predicts will therefore be inaccurate.
121. Mr. Blomberg did not measure noise from the crushing operation during the two-day
sound test. Instead, his assumptions are entirely reliant upon Mr. Duncan’s sound level inputs.
Mr. Blomberg used these inputs despite appear to question their accuracy. However, there was
no evidence or basis provided to support the suggestion that Mr. Duncan’s inputs were either
inaccurate or flawed in anyway. Blomberg Cross-examination.
122. Mr. Blomberg modified several of the model parameters that Mr. Duncan had used in
his model to create what he opined is a more accurate representation of the proposed project’s
noise. Id.19
123. Mr. Blomberg eliminated the noise-reducing impacts that Mr. Duncan’s model assumed
would result from foliage because the Project operating year continues in autumn to periods
when there are no leaves on the trees. This changed the results of Mr. Duncan's model by
fractionally increasing the dBA max level. Mr. Blomberg conceded that when significant figures
are considered, results ought not be expressed beyond integers as several inputs were
expressed only as integers with no decimal places. Mr. Blomberg considered this to be
meaningless because of the 3 dBA accuracy rate in the model discussed below. Id.
124. Mr. Blomberg raised the level of the sound receptors used in the model from 1.5 meters
to 4 meters. He examined the houses in the neighborhood and determined that many had
windows on the second floor. He conceded that when inside a residence, sound is attenuated
by the house structure. However, the receptors he posited are positioned outside of the
structure without any attenuation by the house structure. He conceded that there is in fact
attenuation below the levels he used. Id.
125. Mr. Blomberg also changed the model with respect to a pond area to be highly sound
reflective as described by the ISO standard. Mr. Duncan agreed that the ISO standard presents
the pond as sound reflective. However, when Mr. Duncan ran the model with the pond as highly
sound reflective, the result differed significantly from the actual sound levels recorded and
measured over the two-day period. As described above, when this happens there are
modifications sound professionals make to the model to reflect real world data that has been
actually measured. Mr. Duncan concurred that in a pure modeling exercise, Mr. Blomberg's
approach with respect to the pond is correct. However, to obtain a real-world estimate of actual
sound levels at the Project, Mr. Duncan’s modification to conform to known data is the correct
approach.
126. Mr. Blomberg further added 3 dBA to every result he obtained in his model run. The ISO
standard notes that results generated by the ISO standard have a +/- 3 dBA accuracy factor. Mr.
Blomberg therefore suggested that it is appropriate to add 3 dBA to every result. However, if
ISO intended to apply a +3 dBA level to each value, it would have simply done so and instructed
users to do their modeling and then add 3 dBA. As this is a margin of error, it is as likely that a
given result will be lower than, rather than higher than, the reported result. Likewise, there is
no basis to believe that results might not be 0.1 or 0.2 or 0.3 dBA above or below reported
20
results for a given receptor location. It is pure speculation to assume that all results are more
likely than not to be 3 dBA above the modeled value. The Court rejects this notion.
127. Mr. Blomberg also suggested that the Lmax standard in Barre Granite should be
measured using a response value of 1/8 of a second (fast response), rather than Lmax over one
second (slow response). He did not have any evidence that the Environmental Board used the
fast response approach in Barre Granite. Testimony of Blomberg.
128. The Barre Granite decision contradicts Mr. Blomberg's claim that the applicable standard
should be Lmax measured by fast response. The former Environmental Board specifically noted
that the sound meter in fact had been set on slow response. See Barre Granite, No. 7C1079 at
43 ("The measurements were taken using a calibrated Bruel and Kjaer 2236 (Type l) sound level
meter fitted with a wind screen. The meter was set on slow response.' (emphasis added)).
129. Mr. Blomberg opined that if fast response were used, an increase of 2 to 8 dBA Lmax
could be expected. That would effectively alter the Barre Granite standard, which this Court is
not inclined to do in this matter.
130. When Mr. Blomberg added all of the above values to Mr. Duncan's model and made all
of the above adjustments, multiple residences were over 75 dBA Lmax. He presented this
information in the form of numerous exhibits.
131. There are, however, problems with several of the exhibits. On cross examination, Mr.
Blomberg conceded that he clearly used two different sets of data from Mr. Duncan. He could
not state which of the data sets represented the Project as it is currently proposed. Testimony
of Blomberg. The Court cannot know if the data is correct or not as Mr. Blomberg did not know
himself. Cross examination of Blomberg.
132. In fact, in Exhibit TT, Mr. Blomberg used data that was later modified to include the
mitigation measures now proposed by NEMG through Mr. Duncan. In two small photographs
contained in that Exhibit, which Mr. Blomberg testified came to him from Mr. Duncan's data,
there appears a small crescent shaped line that is not present in that data. Mr. Blomberg said
that he does not know which data correctly represents the current Project.
133. Mr. Blomberg stated that nevertheless his tables in later exhibits were accurate
depictions of the data Mr. Duncan used. However, when the Court questioned him, Mr.
Blomberg could not state whether the final values were Lmax values or were Leq values, whose
21
use Barre Granite rejected. Mr. Blomberg testified that he suspected that some values were not
Lmax. Testimony of Blomberg.
134. In considering Mr. Blomberg's testimony and exhibits, the Court declines to place
significant weight on Mr. Blomberg's evidence, in part because Mr. Blomberg could not even
state which unit of measure his results depict. Because Mr. Blomberg himself could not do this,
the Court cannot determine that the results are Lmax or Leq results. Further, the Court cannot
determine whether Mr. Blomberg considered data from the Project as now proposed with the
mitigation factors presented to the Court because Mr. Blomberg could not do so and conceded
that he was unsure of which of Mr. Duncan's data he used.
135. Even if these flaws in Mr. Blomberg's testimony did not exist, the Court notes that:
a. Mr. Duncan has more experience with sound modeling than does Mr.
Blomberg.
b. Mr. Duncan conducted actual monitoring of the Project and used that
monitoring in reaching his conclusions. Mr. Blomberg entirely ignored
the real-world monitoring. His reasoning is that the ISO standard should
be modeled purely. The approach taken by Mr. Duncan seems more
reasonable.
c. Mr. Duncan's prior modeling work and the modeling approach used by
RSG has been subjected to QA/QC comparing predicted to actual results.
Mr. Blomberg has never done such QA/QC.
d. Several Mr. Blomberg's alterations of the model seem unreasonable
including the placement of hypothetical receptors outside second floor
windows where, in fact, no person can stand or walk. Likewise, his
addition of 3 dBA to every sound result is entirely unpersuasive.
136. Thus, even if Mr. Blomberg had not used incorrect data, and even if he could express
all results as Lmax (which he cannot), the Court would find Mr. Duncan's testimony and results
more credible and persuasive.
137. Based upon the above and the evidence before the Court, the Court finds as fact that
the on-site elements of the proposed crushing operation will not generate noise above 70 dBA
Lmax (slow response) at the ROA property line and will not exceed 55 dBA Lmax (slow response)
at any residence or place of frequent human use.
138. The Court also finds that NEMG has carefully considered many methods to mitigate
22
impacts of noise, and that the measures proposed will result in mitigation of noise impacts.
Truck Noise
139. Before the Project started in 2009 and continuing to the present, numerous trucks have
travelled up and down the Graniteville Road Truck Route including haul trucks carrying ROA
material. It is also well traveled by cars with many hours of the day having overall vehicle travel
of more 5 cars per minute. According to Alice Cloud, a neighbor who lives directly on
Graniteville Road next to the NEMG access road, there was even more traffic up and down
Graniteville Road some years ago before ROA constructed its visitor's center further down
Graniteville Road than its prior location. Testimony of Alice Cloud; Testimony of Eddie Duncan.
140. The Project initially sought a maximum of 150 daily off-site loaded truck trips and an
average of 60 loaded truck trips per day as averaged over a calendar year. At the close of
evidence in this matter, the Appellants reduced those truck trips to a maximum of 100 loaded
off-site crushed aggregate trucks per day and an average of 60 loaded off-site crushed aggregate
trucks per day averaged over a calendar year.
141. As noted above, some trucks will exit the Project site and turn left onto the Graniteville
Road Truck Route toward Lower Graniteville. Some trucks going to local jobs will turn right onto
Graniteville Road Toward Upper Graniteville. Some trucks will exit the site through internal
quarry roads onto Pirie Road, rather than Graniteville Road. Ex. 1, Act 250 Application,
Overview, Testimony of Eddie Duncan and John Hinckley; Stipulated Facts.
142. The focus of testimony at trial was on the effect of noise from off-site truck passes from
the Project on houses along the Graniteville Road Truck Route. Trial Testimony.
143. The maximum sound level, the Lmax, from trucks going to and from the Crusher will be
the same as the Lmax of the existing trucks from ROA and the approved NEMG hot mix plant
which presently use the Graniteville Road Truck Route. That Lmax was estimated by Mr. Duncan
to be between 66 and 82 dBA Lmax.
144. This is not a situation where the trucks to be added to the road system will be creating
a different or louder noise than existing trucks. Trucks from the Project are similar to trucks
from the hot mix plant and from ROA operations. Trucks from the Project will be following the
exact same route and acceleration areas as existing trucks; thus, the new Lmax sound levels
from new truck passes will be the same as those from existing truck passes. As a result, there
23
will be no change in instantaneous Lmax sound levels due to the additional truck traffic
associated with the Project.
145. The only thing that will change with respect to off-site truck noise as a result of the
Project is the frequency of those truck passes during ROA business hours. Testimony of Eddie
Duncan.
146. Mr. Duncan performed traffic counts on April 14, 2015 in relation to his modeling. A
baseline of traffic, with the asphalt operation but without crushing trucks, results in 179 one-
way truck trips. Under the proposed average crushing scenario (60 loaded trucks per day), 299
one-way truck trips would occur. At the maximum crushing scenario (100 loaded trucks per
day), 379 one-way truck trips per day would take place.
147. At trial, the Applicants submitted the actual off-site truck trip records from the Crusher
prior to its being shut down in August 2016. Those records show that in the four-year period
from January 2012 through 2016, the Crusher met or exceeded the maximum number of daily
trips requested in this application on a total of 15 days, or approximately 1% of the time. On
most days, maximum truck trips were less than half the maximum requested number. On many
days, there were less than 20 trucks per day, or two trucks an hour. On some days, no trucks at
all were generated by the Crusher. Ex. 81, NEMG Crushing Records.
148. The Court has carefully considered the cumulative noise impacts arising from the fact
that the Project will increase the number of tucks on the road, i.e., the number of trucks that
pass by a neighbor's residence.
149. To analyze such cumulative impact, Lmax measurements standing alone are only part of
the consideration. Lmax only measures sound levels at one very short interval of time. While
that level must be considered in comparison to the context of the area, which here includes an
existing background level of similar trucks and many cars, the Court has elected to analyze noise
impacts associated with increasing the number of truck passes using additional sound levels.
The Court has considered the evidence before it and finds it helpful to consider the equivalent
sound level, or Leq, in addition to Lmax and in addition to consideration of the testimony of all
of the lay witnesses.
24
150. Leq is a "compilation of successive instantaneous sound measurements." It provides
guidance with respect to the noise environment of the area that exists now when the Project is
not operating. Testimony of Eddie Duncan.
151. Lmax sound measure is not generally accepted for assessing cumulative noise impacts
over longer periods of time. Rather, such impacts are generally measured by Leq 1-hr which
measures the weighted sound impact of multiple noise events over a 1-hour period. Testimony
of Eddie Duncan.
152. NEMG also modeled traffic noise from the Project based on a Leq 1-hr measure. A one-
hour timeframe is an appropriate time period to capture and reflect the impact of additional
truck traffic caused by the Project. Testimony of Eddie Duncan. The Court finds 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.
153. Mr. Duncan found that without the Project, the baseline sound level with existing truck
traffic on the road is 61 to 63 dBA Leq 1-hr. With the Project operating at its yearly maximum,
the sound level on an average day would be 64 to 65 dBA Leq 1-hr. Under a single day maximum
scenario with the Crusher and NEMG hot mix plant producing trucks at their maximum
permitted levels of operation, noise levels at area residences would be 66 dBA Leq 1-hr. This
results in a 1-4 dBA change across the course of an hour and is a very modest and reasonable
increase. Ex. 78, Sound Level Monitoring of Traffic Noise; Ex. 79, Future Sound Levels from On-
Road Trucks.
154. The Court is persuaded that the noise context of the area, and of Graniteville Road and
roads that adjoin it, is already far from pastoral. While some Neighbors, notably Padraic Smith,
consider Graniteville Road to be infrequently traveled, objective vehicle counts demonstrate
that this is not the case. It is a well-traveled road. Notably, Mr. Smith testified that he wasn't
even aware that crushing was occurring at the ROA site before the recovery period from
Hurricane Irene in September through December 2011 and did not notice anything, presumably
including the increase in truck traffic, until he learned of the application for the NEMG hot mix
plant. Smith Cross-examination.
25
155. While this Project is not subject to any VTrans review, the Court finds it helpful to look
to other sources of information beyond the modeling and trial testimony. One source is the
Noise Abatement Policy adopted by VTrans in connection with certain types of road projects.
That policy uses the Leq 1-hr measure to assess whether noise from changes in truck traffic in
connection with VTrans projects will have an adverse impact on surrounding communities and
whether those changes merit noise mitigation consideration. That policy notes that noise
abatement should be considered if traffic noise will reach or exceed the noise abatement
criteria of 67 dBA (Leq 1 -hr) for the exterior of residences or if there is a substantial noise
increase which is defined as a change of 15 dBA above existing levels. Ex. 80, VTrans Noise
Abatement Policy.
156. Were this Project subject to VTrans jurisdiction, no noise mitigation under the VTrans
Guidelines applicable to highway projects would be required. Ex. 80, VTrans Noise Abatement
Policy.
157. Truck noise from the Project will fit into the context of the Graniteville Road Truck Route,
surrounding roads in the ROA area and will not shock an average person.
Neighbor’s Testimony on Noise
158. As of December 2013, Ms. Bennet experienced noises like stone on metal that were loud
enough to wake her up in the morning and that continued until 8:00 or 8:30 at night. These
noises started in roughly 2011.
159. Melyssa Danilowicz testified that she works from home but that trucks from the Crusher
do not pass by her house unless they have obtained a "variance" from the Town of Barre
because her home is not located along the Graniteville Road Truck Route. She testified that in
the summer of 2017, she was hearing the same noises which she has heard at the last four or
five years coming from the area of the Crusher, even though the Crusher did not operate at all
during 2017. She further testified that she cannot tell whether truck noises coming from the
Project are from ROA or from NEMG. Danilowicz Cross-examination.
160. Lori Bernier does not reside along the Graniteville Road Truck Route. She testified that
she does not work and is home almost all of the time and that she typically stays up until after
midnight and gets up after 8:00 AM or later in the morning. She described the noise from the
Crusher as being constant even though the Crusher has only operated intermittently over the
26
last five years. She further testified that there has never been an extended time when the
Crusher was not running, even though the Crusher has not operated at the site since 2016. Lori
Bernier Cross-examination; Testimony of Don Murray.
161. Ms. Bernier testified that she never noticed any previous crushing at the NEMG site even
though crushing with similar equipment and at the same site occurred in the 1990s, and even
though Ms. Bernier lived at the same location during that time. Lori Bernier Cross examination;
Stipulated Facts.
162. Ms. Bernier presented a recording of a repetitive noise she claimed was coming from
the area of the Crusher. However, the noise on the video lasted less than two minutes. From
footsteps and other background sound, the volume of that recording clearly did not depict
sound levels that actually existed at the time. Lori Bernier Video.
163. Donald Murray, Chief Engineer of ROA, testified that no piece of equipment owned or
operated by ROA or NEMG sounds like the piece of equipment recorded in the Lori Bernier
video. He further testified that while Ms. Bernier believed it to be a rock hammer, no rock
hammer could operate at that level for as long as the noise persisted on the recording without
experiencing equipment failure. Testimony of Donald Murray.
164. The Court concludes that whatever the repetitive sound is, it was not a rock hammer or
other piece of equipment at the Project. There is insufficient evidence to determine where it
originated or what was the cause of the recorded sound, or how loud the sound actually was.
165. Alice Cloud and Lee Larson are the two closest neighbors to the Project. Both have lived
along the Graniteville Road Truck Route for the entire time that the Crusher has been operating.
Ms. Cloud lives at the intersection of the Project access road and Graniteville Road where trucks
stop and then accelerate while turning left onto Graniteville Road. Ms. Larson indicated that
she spends virtually all of her time outside during the warm weather months and that she has
extensive gardens right along Graniteville Road. Testimony of Alice Cloud and Lee Larson.
166. Neither Ms. Larson nor Ms. Cloud have found off-site truck noise from ROA, the hot mix
plant or the Crusher itself to be shocking, unduly disturbing, out of context with existing ROA
operations or problematic for their day to day living or occupancy of their homes in any way.
Id.27
167. As of December 2013, Ms. Austin (who lives next to Ms. Larson) experienced loud noises
from the Crusher, which are distinct from the noises she hears from the ROA compressor house
located behind her property.
168. The Project does not involve any unusual noises or ones which are out of context with
an existing earth extraction operation in an industrially zoned area. The Project will operate
during ROA normal business hours. Testimony of John Hinckley and Eddie Duncan.
169. The Barre Town Plan and Zoning Regulations do not contain any clear written
community noise-related aesthetic standards. No other applicable clear, written community
standard with respect to noise was cited by any party. Exhibit 77, NEMG Crusher Noise
Assessment Summary; Exhibit 82, Barre Town Plan.
Conclusions of Law
The issues in this Act 250 appeal are whether the Project will produce undue air pollution
under Criterion 1 and whether the Project will have undue adverse aesthetic impacts under
Criterion 8 with respect to noise and dust.
I. Criterion 1: Air Pollution
Act 250 Criterion 1 requires applicants to show that their project will not cause “undue
water or air pollution.” 10 V.S.A. § 6086(1). This matter reviews only air pollution. Criterion 1
does not prohibit a project from emitting any air pollution at all but only air pollution which is
"undue.” Whether pollution is “undue” is highly fact-specific; it depends on “the nature and
amount of the pollution, the character of the surrounding area, whether the pollutant complies
with certain standards or recommended levels, and whether effective measures will be taken to
mitigate the pollution.” Re: McClean Enters. Corp., No. 2S-1147-1-EB, Findings of Fact,
Conclusions of Law, and Order at 41 (Vt. Envtl. Bd. Nov. 24, 2004) (citations omitted).
Compliance with government air quality standards is an important factor in whether air pollution
is “undue,” but it is neither necessary nor sufficient to show compliance with Criterion 1. See
Re: David and Joyce Gonyon, No. 5W1025-EB, Findings of Fact, Conclusions of Law, and Order at
7 (Vt. Envtl. Bd. Jul. 17, 1991) (noting the Environmental Board was not required to determine
compliance with relevant regulations when making an “undue air pollution” determination); In
re Rivers Dev. Conditional Use Appeal, Nos. 7-1-05 Vtec, 68-3-07 Vtec, slip op. at 14 (Vt. Envtl.
28
Ct. Mar. 25, 2010) (Durkin, J.) (noting the historical interpretations of Criterion 1 does not
“establish a sole reliance upon governmental air quality standards, but rather vest[s] the
adjudicating tribunal with the responsibility of determining” whether there is “undue air
pollution”).
While Act 250 does not define what pollution is “undue,” it is clear that “undue” means
something more than mere annoyance. See RE: John A. Russell Corp., No. 1R0849-EB, Findings
of Fact, Conclusions of Law, and Order at 43–44 (Vt. Envtl. Bd. Jul. 10, 2001) (citing Re:
Brattleboro Chalet Motor Lodge, Inc., No. 4C0581-EB, Findings of Fact, Conclusions of Law, and
Order at 6 (Vt. Envtl. Bd. Oct. 17, 1984).
Applicants bear the burden of showing that they satisfy Criterion 1 of Act 250. 10 V.S.A.
§ 6088(a). 10 V.S.A. § 6086(d) and Act 250 Rule 19 provide that certain ANR permits create
presumptions of compliance with certain of the Act 250 Criteria. Under Act 250 Rule 19(E)(2) an
air pollution control permit from ANR creates a presumption that no undue air pollution will
result from a project. The issuance of such a permit creates a presumption that the application
is not detrimental to the public health and welfare with respect to the specific requirement for
which it is accepted. Act 250 Rule 19(F). This presumption is rebuttable. In re Hawk Mountain
Corp., 149 Vt. 179, 186 (1988); see also Act 250 Rules, Rule 19(F).
In this case, ANR issued an Air Pollution Control Permit for the Crusher. Appellants are
thus entitled to the presumption of conformity with Criterion 1, Air Pollution, under Act 250 Rule
19.
To rebut the presumption, opponents must introduce admissible evidence that allows a
“rational inference to be drawn” that the development will likely cause undue pollution. Hawk
Mountain, 149 Vt. at 186. Once the presumption is rebutted, “the applicant shall have the
burden of proof under the relevant criteria and the permit . . . shall serve only as evidence of
compliance.” Act 250 Rules, Rule 19(F).
The evidence provided by the Neighbors in this case to rebut the presumption primarily
consisted of testimony about dust and diesel smells in the area and pictures and videos of past
operations at the ROA quarry. Neighbors testified that the crushing operation and associated
truck traffic generate silica dust, which enters their homes, interferes with their use and
enjoyment of their properties, and prevents them from enjoying outdoor activities around
29
Graniteville. Neighbors supported their testimony with photographs and videos of dust at the
crusher site, dust blowing off-site, and trucks kicking up dust along Graniteville Road. Some
Neighbors who live along the truck route also testified to smelling diesel emissions in their
homes and along Graniteville Road.
Neighbors also offer Mr. Linden Witherell as an air expert. Mr. Witherell’s testimony
focused on the public health impacts of silica dust and diesel emissions. He testified that silica
particles can cause silicosis, which is scarring to the lung tissue caused by extensive inhalation
of silica particles. He explained that the location of the crushing operation, coupled with the
topography of the area, allows for the airborne silica particles to travel off site to neighboring
residences. He testified that the Air Pollution Permit does not address the cumulative impacts
of silica emissions, and that there is no information on the quantity of silica dust residents of
Graniteville are actually breathing in. He also offered that wet suppression, which is required
by the Air Pollution Permit, is not an effective dust control mechanism because particles
become re-suspended by trucks or other machinery driving over the site.
Neighbors also offer that the crushing operation cannot comply with the conditions of
the Air Pollution Permit or with the relevant air pollution control regulations. They supported
this offer again with photographs and videos of dust at the crusher site.
The Neighbors’ evidence therefore provides a “rational inference to be drawn” that
the development will likely cause undue pollution. Thus, the Neighbors successfully rebut the
presumption of compliance under Criterion 1 created by the Air Pollution Control Permit. The
burden shifts back to NEMG to prove the crushing operation will not create undue air
pollution. See Act 250 Rules, Rule 19(F).
Because the Neighbors have successfully rebutted the presumption of compliance, we
now review their evidence in greater detail and weight that evidence with NEMG’s offered
evidence. For the following reasons we conclude that Neighbors evidence does not convince
the Court that the Project will result in undue air pollution. Rather, we conclude that the
detailed and credible evidence offered by NEMG shows that the Project will NOT result in undue
air pollution.
The Project’s location and long-term prior operations have some significance in the
determination of undue air pollution. The Project is in an Industrial Zone pursuant to the Town
30
Plan and Zoning Regulations. The 1150-acre ROA quarry property and has been in operation
for over 100 years. Some level of dust and noise is to be expected from an operating rock
quarry and the various pieces of equipment and trucks that service it. In addition, it should
be the reasonable expectation of anyone moving to or living adjacent to an existing rock
quarry to experience environmental impacts, such as dust and noise. These impacts would
likely be greater than those found in non-industrialized or rural areas. Lastly, impacts may
vary over time.
The testimony of property owners in the area varied greatly. The two neighbors closest
to the Crusher, Ms. Cloud and Ms. Larson, testified that they have not experienced dust or other
air emissions from the Crusher to be unduly onerous or problematic for them or their
properties. Ms. Larson specifically testified that the Project has not impacted the significant
time she spends outside in the warm months. Ms. Larson, in fact, testified that she did not know
about the Crusher, even after it had been operating for some time, until this appeal was
initiated. Individuals from the Neighbors group testified to significant impacts. Important to
the Court’s conclusion is the fact that these Neighbors could not distinguish Crusher dust from
other general dust from non-Crusher equipment or from dust in the area given the
industrialized nature of the vicinity.
The Neighbors’ also offered photographs and videos in support of impacts. The Court
concludes that these are not a fair or accurate representation of how the Crusher will operate
in the future. First, by their very nature, this visual evidence is of very short duration and limited
to the dates on which the Neighbors collected the evidence. Importantly, many of these visuals
were modified by the use of magnification. Additionally, limiting the value of this evidence is
the fact that some pictures and video were taken when the Project was not operational.3 Lastly,
Mr. Hinckley testified that the neighbors’ videos did not clearly show the source of the dust. For
these reasons, the Court cannot conclude that these visual representations are a realistic
depiction of the Project operation as it has existed or as it may exist in the future.
The Court therefore finds the testimony of the closest residential neighbors, Ms. Cloud
and Ms. Larson, more compelling evidence that undue emissions will not occur.
3
Mr. Murray credibly testified that the dust in Mr. Bernier's videos was coming from ROA’s operations not
the crusher.
31
Additional support for the conclusion that the Project will not result in undue air
pollution and conforms with Criterion 1 is evidenced by NEMG’s AERMOD modeling not only
of the Project’s air emissions but also cumulative emissions from industrial activity unrelated
to the Crusher, but in its vicinity. Mr. Hinckley testified that his modeling presents the worst-
case scenario, assuming the maximum amount of crushing, and assuming all operations are
operating at their maximum levels simultaneously. This "conservative" approach promotes
reliability in the modeling results. The modeling followed the only methodology approved by
both ANR and EPA and corroborated the conclusion embodied in the Air Permit that the Project
will satisfy the VAAQS and NAAQS at all off-site locations, including each of the neighboring
Appellees’ properties and the Town Forest, and will not cause undue air pollution.
We note that NEMG’s AERMOD model included emission factors having a poor rating.
Mr. Hinckley credibly testified, however, that he reviewed all of the relevant data, and the
data’s poor rating was due to the scarcity of data as opposed to the quality of the data itself.
Therefore, Mr. Hinckley opined, that the data and the modeling results are reliable.
The Neighbors and their air expert raised issues of silica dust emissions. As detailed
above, Mr. Witherell’s testimony focused on the public health impacts of silica dust and diesel
emissions. He testified that silica particles can cause silicosis. He explained that the location
of the crushing operation, coupled with the topography of the area, allows for the airborne
silica particles to travel off site to neighboring residences. He testified that the Air Pollution
Permit does not address the cumulative impacts of silica emissions, and that there is no
information on the quantity of silica dust residents of Graniteville are actually breathing in. He
also offered that wet suppression, which is required by the Air Pollution Permit, is not an
effective dust control mechanism because particles become re-suspended by trucks or other
machinery driving over the site. Although Mr. Witherell raised the potential for impacts due
to silica dust, he acknowledged that there is no known standard for use in regulating the
project with respect to silica dust. Instead, Mr. Witherell offered that NEMG should be
required to undertake a study and create such a standard; such study taking up to 10 years to
conclude. Our regulatory system does not operate in this fashion to impose such burdens on
applicants. In the end, Mr. Witherell did not provide evidence that the Project will cause undue
air pollution.
32
NEMG presented evidence demonstrating that the Air Pollution Permit conditions are
effective at preventing the undue silica dust emissions. Mr. Hinckley’s modeling showed
emissions are compliant with the relevant regulations. Mr. Hinckley testified that the wet
suppression system operates to decrease dust emissions and knocks dust down back on the
storage piles. Additionally, he testified that wet suppression, which is required by the Air
Pollution Permit, would successfully remove 89% of silica dust and only 5.5% of all respirable
dust that would be emitted from the project would be emitted into the ambient air.
Therefore, Mr. Hinckley concluded that the silica emissions do not pose a health hazard.
After careful consideration of all the evidence, the Court concludes that the Crusher,
operating in conformity with its Air Pollution Permit and in compliance with the VAAQS, will
not cause undue air pollution.4 For the reasons set forth above, we find Mr. Hinckley’s opinion
that undue air pollution will not occur from the Project operations to be credible. Furthermore,
we conclude that wet suppression is the best way of ensuring that problematic silica dust is
controlled. These conclusions are supported by NEMG’s AERMOD modelling, and Mr.
Hinckley’s Method 9 opacity testing conducted in 2013, 2015, and 2016. Additionally, we
conclude that dust from trucks existing the Crusher site will be further reduced by sweeping
and wetting down the access road on a regular basis. The Court therefore conditions Criterion
1 approval as follows to ensure that undue air pollution will not be caused by the Crusher in
the future:
The Project shall be completed and operated in accordance with Air Pollution Control
Permit to Construct #AP-14-007 issued by the Agency of Natural Resources Air Pollution
Control Division and dated February 19, 2014. The Permitee will abide by all conditions
and protocols set forth in that Permit including, but not limited to, conditions regarding
the general operation and maintenance of the Crusher, conditions pertaining to ongoing
inspection, wet suppression, monitoring and testing and provisions regarding dust
control. Non-material amendments to the Air Pollution Control Permit shall be deemed
automatically incorporated herein.
The Permittee shall sweep or spray down the paved portion of the access road to the
Crusher with water and shall spray down the immediate area of the Crusher as needed
so as to minimize fugitive dust.
4
We note that that the Crusher can produce some dust under its Air Pollution Permit without violating
the VAAQS or its Air Pollution Permit.
33
With these conditions, we find that the Project will not cause undue air pollution and
will be in conformance with Criterion 1, Air Pollution, of Act 250.
II. Criterion 8: Aesthetics
To receive an Act 250 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). In this matter our Criterion 8 review is limited to dust and noise,
including the on-site noise from the Crusher operation and off-site truck noise. 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
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 our 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?” Re: Quechee Lakes Corp., Nos. 3W0411-EB and
3W0439-EB, Findings of Fact, Conclusions of Law, and Order, at 18 (Vt. Envtl. Bd. Nov. 4, 1985);
aff’d In re Quechee Lakes Corp., 154 Vt. 543 (1990). Criterion 8 is not, however, a guaranty
that aesthetics in an area will never change but ensures that such change will be reasonable.
Re: Times & Seasons, LLC, No. 3W0839-2-EB (Altered) Findings of Fact, Conclusions of Law, and
Order at 39 (Vt. Envtl. Bd. Nov. 4, 2005); Re: John J. Flynn Estate, No. 4C0790-2-EB, Findings of
Fact, Conclusions of Law, and Order at 25 (Vt. Envtl. Bd. May 4, 2004).
A general analysis of aesthetic impacts can be subjective, and thus we follow the two-
part test established by the former Environmental Board known as the “Quechee test” to
evaluate a project under Criterion 8. Quechee Lakes Corp., Nos. 3W0411-EB and 3W0439-EB,
at 17 (quoting Re: Brattleboro Chalet Motor Lodge, Inc., No. 4C0581-EB, Findings of Fact,
Conclusions of Law, and Order (Vt. Envtl. Bd. Oct. 17, 1984)); In re Rinkers, Inc., 2011 VT 78, ¶
9, 190 Vt. 567 (approving use of the Quechee test). First, we examine whether a proposed
project may cause an adverse impact on the character of the area. Quechee Lakes Corp., Nos.
3W0411-EB and 3W0439-EB, at 19. If so, then we must determine whether that impact will
be “undue.” Id.34
To determine whether a project will have an "adverse" aesthetic impact, the Court is
charged to look at how the project fits within the context of its area in terms of size, scale,
nature of use and various off-site impacts, here with specific regard to dust and noise. Id.; See
also, In re Free Heel, Inc., No. 217-9-06 Vtec, slip op. at 5 (Vt. Envtl. Ct. Mar. 21, 2007). If a
project fits within its aesthetic context, it will not have an "adverse" aesthetic impact and will
comply with Criterion 8.
Even if the Court finds that a project does not fit within its context, and therefore has
an "adverse" aesthetic impact on the area, a project will still be found to comply with Criterion
8 unless the adverse aesthetic impact is found to be "undue." An impact is undue if:
(1) it violates a clear, written community standards intended to preserve 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 (quotation omitted).
a. Noise
Vermont does not have a quantitative noise standard. See, e.g., In re Chaves, 2014 VT
5, ¶ 31 n. 4. We use a benchmark known as the Barre Granite standard for measuring whether
noise is adverse under the Quechee test: 70 decibels (dBA) (Lmax) at the property line of a
project and 55 dBA (Lmax) outside an area of frequent human use. Re: Barre Granite Quarries,
LLC, No. 7C1079 (Revised)-EB, Findings Fact, Conclusions of Law, and Order, at 80 (Vt. Envtl. Bd.
Dec. 8, 2000); see also Lathrop Ltd. P’ship I, 2015 VT 49, ¶ 80. Even with the benchmark, the
question of whether noise is “adverse” ultimately depends on whether the noise suits the
existing soundscape, considering the nature and volume of existing noise and the qualitative
character of the noise that will be added. Lathrop, 2015 VT 49, ¶ 81; In re McLean Enters. Corp.,
No. 2S1147-1-EB, Findings of Fact, Conclusions of Law, and Order, at 53–54 (Vt. Envtl. Bd. Nov.
24, 2004).5
5
There also is a question about which "prong" of the Quechee test the Barre Granite standard is intended
apply to: adverse or undue impact. In the past, the Environmental Board had applied Barre Granite to the second,
“undue,” prong. See Re: Cerosimo, No. 2W0813-3 (Revised)-EB, Findings of Fact, Conclusions of Law, and Order
(Vt. Envtl. Bd. Apr. 19, 2001). More recently, the Vermont Supreme Court, and the Environmental Division, have
applied the standard to the “adverse” prong of the Quechee test. See Lathrop, 2015 VT 49, ¶ 80; Chaves, 2014 VT
35Instantaneous Lmax readings for purposes of determining compliance with the Barre
Granite standard should be taken with sound meters set on slow response, as done by
Appellants in this matter. See Barre Granite, No. 7C1079 at 43 ("The measurements were taken
using a calibrated Bruel and Kjaer 2236 (Type 1) sound level meter fitted with a wind screen.
The meter was set on slow response.") (emphasis added).
The Barre Granite standard must be applied flexibly. See Lathrop, 2015 VT 49, ¶¶ 81-82
(stating "a 50 dBA Lmax standard may not make sense in noisy areas [and it] may be of
questionable logic and practically impossible to enforce a 50 dBA Lmax when trucks passing by
already register 78 dBA at an adjacent residence.") (citations omitted); see also Chaves, 2014
VT 5, ¶ 33; In re McCullough Crushing Inc., No. 179-10-10 Vtec, slip op. at 21-22 (Vt. Super. Ct.
Envtl. Div. Feb. 16, 2017) (Walsh, J.) (citation omitted). This is logical, considering the fact that
different sound levels will be perceived differently depending on the context in which they
occur, such as the character of the area. Therefore, a sound level that may be adverse under
the Quechee test in one situation may not be in another.
The import of the Vermont Supreme Court cases interpreting the Barre Granite standard
is that a project could potentially have an "adverse" aesthetic impact, but still satisfy Criterion
8 if that impact is not "undue" under the Quechee test.
i. On-site Noise
1. Adverse Aesthetic Impact
We first analyze noise made from on-site activities. RSG’s noise study indicates that,
with the implementation of the mitigation measures proposed by Applicants, the Crusher plant
will satisfy the Barre Granite standard at all adjoining residences and areas of frequent human
use, including the neighboring Appellees properties. The mitigation measures include:
1. The construction and maintenance of two aggregate stockpile berms 15.5 and
13 feet in height in the locations depicted on the scaled map submitted as
Exhibit 65.
2. Installation of sound barrier blankets on the primary crusher and the primary
screener as described on Exhibit 65, 74 and Exhibit 77 and as depicted on
Exhibits 66 - 73.
3. The installation of a rubber screen deck on the primary screener.
5; In re McCullough Crushing, Inc., No. 179-10-10 Vtec, slip op. at 21-22 (Vt. Super. Envtl. Div. Feb. 16, 2017) (Walsh,
J.). We continue to apply the Barre Granite standard to the first prong of the Quechee test.
36
4. Installation of broadband or white noise back-up alarms on all NEMG onsite
mobile equipment.
5. Limiting the use of the freestanding rock hammer to periods when the main
Crusher plant is not operating as described in Exhibit 65.
Additional limiting conditions offered my NEMG include the crusher equipment and off-
site truck operations limited to Rock of Ages business hours. Normal hours of Crusher
operation will be 6:00 AM to 4:00 PM Monday through Saturday. Saturday operations will be
limited to a maximum of 20 Saturdays per year. Variance from these hours and days may be
allowed in special circumstances with prior permission of the District Coordinator.
Along with mitigation measures, we note that the Crusher is in an existing, large rock
quarry. Quarrying activities include the use of heavy equipment, blasting, and general
intensive industrial activity and its associated noise, such as that from truck traffic, all of which
have associated noise impacts. Further, the Crusher area is zoned for industrial use under the
Town Zoning Regulations and Town Plan. The Project area is not immediately adjacent to any
residences or public roads.
As conditioned by these mitigation measures, we conclude that noise from on-site
activities will be consistent with background noise in the area presently dominated by heavy
industrial use and its associated noises, including that of quarrying activities. We therefore
conclude that on-site activities meet the Barre Granite noise standard, fit the context of the
area, and will not have an adverse aesthetic impact with respect to noise.
We recognize that noise levels at some neighboring properties closely approach the
Barre Granite limit of 55 dBA Lmax. We have studied the Supreme Court’s recent Lathrop
decision and understand that the Barre Granite limits or standard should be applied flexibly.
See Lathrop, 2015 VT 49, ¶¶ 81-82. We therefore take the conservative approach and
complete the second ‘undue’ adverse analysis even though we conclude there is no adverse
impact.
2. Undue Adverse Aesthetic Impact
a. Clear Written Community Standard
When determining if there is a clear, written community standard, we generally look to
town plans. See McLean Enters. Corp., No. 2S1147-1-EB, Findings of Fact, Conclusions of Law,
37
and Order, at 55 (Vt. Envtl. Bd. Nov. 24, 2004). Statements signaling a dominant policy with a
town plan, are sufficiently clear. Id. at 56.
Neither party provided evidence of the existence of community standards that were
intended to preserve the aesthetics of the area at trial. Neighbors have broadly asserted in
post-trial briefing that such standards exist but have not reference or provided any specific
provisions or plan sections which could be clear written standards. Because the Neighbors have
the burden of showing that a project does not conform to Criterion 8, they fail to meet this
burden and we conclude that the Project does not violate any clear, written community
standard. See McCullough Crushing, Inc., No. 179-10-10 Vtec at 22 (Feb. 2, 2017).
b. Shocking to an Average Person
We begin by noting that, for the reasons set forth above, the Project satisfies the Barre
Granite standard at all area residences and locations of frequent human use. Additionally, the
Project will suit the existing soundscape.
While the Neighbors testified that noise will shock them, this Court must consider the
Project’s impacts from the perspective of the average person. In re Goddard Coll. Act 250 &
CU, Nos. 175-12-11 Vtec, 173-12-12 Vtec, slip op. at 14 (Vt. Super. Ct. Envtl. Div. Jun. 1, 2014)
(Walsh, J) aff’d In re Goddard Coll. CU, 2014 VT 124, 198 Vt. 85.
Neighbors testified that they found noise from the Crusher "shocking." The Court notes
that this noise did not incorporate all of the mitigation measures that the NEMG has now
proposed for the Crusher. Additionally, the Neighbors frequently conflated Project noise with
other ROA operational noise. We weight this evidence against the testimony of two neighbors
residing very close to the Project that do not believe the Project noise is “shocking.” In fact,
these neighbors do not find noise shocking even without the proposed mitigation.
Considering the Project’s noise complying with relevant standards, and the nearest
neighbors’ credible testimony that the Project noise does not shock them, the Court concludes
that noise from the Crusher operation itself would not be shocking to an average person.
c. Reasonable Mitigation
Applicants have incorporated the following measures for the Crusher:
38
1. The Crusher is located 1500 feet to the interior of the ROA adjacent to other ROA
and permitted NEMG commercial and industrial operations and not immediately
adjacent to any residences, public roads or public areas.
2. The Crusher will only be operated during ROA business hours and has limited
Saturday operations to a maximum of 20 Saturdays per year.
3. Applicants will construct and maintain aggregate berms in the locations and with the
dimensions shown on the Appellants' Noise Mitigation Exhibit.
4. The Crusher and screener will incorporate noise barrier blankets on the mechanisms
themselves as recited in the Appellants' Noise Exhibit.
5. The primary screener will use a rubber screen deck.
6. Applicants will not operate their rock hammer while the main Crusher plant is
operating.
7. All NEMG mobile equipment will be equipped with broadband or white noise backup
alarms.
Neighbors assert that "mitigation" of Crusher noise should consist of moving the Crusher
to a totally different location on the ROA property. They specifically argue the Crusher should
be moved to the bottom of an unspecified quarry hole located somewhere on the property. Mr.
Murray, ROA’s chief engineer, testified that this would not only be impractical or impossible due
to de-watering and access issues, but also would potentially not be permittable under the
relevant Federal Mine Safety Regulations.
Requiring such a relocation would not constitute "mitigation" but a wholly different
project. It is not this Court’s role to instruct an applicant to design an entirely different project.
Re: Bernard & Suzanne Carrier, No. 7R0639-EB, Findings of Fact, Conclusions of Law, and Order
at 11 (Vt. Envtl. Bd. Aug. 14, 1997) (“The Board does not design projects for Applicants nor does
it provide advisory opinions on what hypothetical elements of design would receive the Board’s
approval.”); See also Goddard Coll., 2014 VT 124, ¶¶ 10-11 (concluding that the Environmental
Division did not act arbitrarily, capriciously, or clearly erroneously when it did not discuss
relocation as a mitigation measure). Thus, we decline to adopt the Crusher’s relocation as a
mitigation measure.
We conclude that the mitigation measures imposed by Applicants are reasonable and
ensure compliance with Criterion 8.
For the foregoing reasons, the Court concludes that on-site noise from the Crusher
operation will not cause an undue adverse aesthetic impact and complies with Criterion 8.
39
ii. Off-site Crushing Noise
1. Adverse Aesthetic Impact
We next review off-site noise associated with the Project; the focus for this matter
being truck noise.
The Vermont Supreme Court in Lathrop specifically, and with great detail, analyzed off-
site truck noise. 2015 VT 49. We understand that the Lathrop decision requires District
Commissions and this Court to consider and make findings regarding impacts from the
instantaneous (Lmax) sound level and frequency of vehicle trips. We cannot rely exclusively
on equivalent (Leq) or average sound levels. See Lathrop, 2015 VT 49, ¶ 88 (finding the failure
to make findings on the instantaneous Lmax levels from truck traffic an error and remanding
case back to the Environmental Division to make such findings).
Instantaneous noise levels more accurately demonstrate what people are actually
hearing as opposed to an average sound reading over any period of time. See Id. at ¶ 86 (citing
In re Casella Waste Management, Inc., No. 8B0301-7-WFP, Findings of Fact, Conclusions of
Law, and Order at 22 & 34 (Vt. Envtl. Bd. May 16, 2000) (quoting In re OMYA, Inc., No. 9A0107-
2-EB, Findings of Fact, Conclusions of Law, and Order at 15 (Vt. Envtl. Bd. May 25, 1999)).
Lathrop also requires that we apply the Barre Granite standard flexibly to off-site truck
traffic considering the context of the area for noise impacts. See Id. at ¶¶ 81-82 and ¶ 87
(noting that previous Environmental board decisions generally “reflect a more thorough
analysis of the changes in traffic patterns” of a proposed project.)
This review is further supported by the Supreme Court favorably citing Chaves, in
which a project was permitted despite involving truck traffic operating at 69 dBA (Lmax) as
measured at a residence. See Lathrop, 2015 VT 49, ¶¶ 80-84 (“[In Chaves, we] disagreed with
the neighbors’ claim, even though the applicant’s expert witness conceded that trucks
accelerating past the neighbors' inn would produce sounds up to 69 dBA and stated that '[this
statement does not undermine the court's overall finding that noise levels would generally
remain under 55 dBA and that the noise was not adverse to the area's aesthetics.'").
40
Because the Barre Granite standard applies to truck traffic, this Court must make
findings regarding Lmax noise impacts from off-site trucks on area roads and whether the
increased number of trucks proposed would have an undue, adverse aesthetic impact. 6
The Project proposes to generate a maximum of 100 off-site loaded round-trip truck
trips per day into the surrounding roadways. The annual average of off-site loaded round-trip
truck trips is 60 per day.7 This results in an increase of the average number of one-way truck
trips from crushing operations of 120 trucks from the existing level of 179 one way truck trips
per day. The maximum crushing scenario has an increase of 200 one-way truck trips per day.
There are three routes which trucks can take going to and from the Project. The primary
route, down Graniteville Road, is designated a Truck Route by the Town of Barre. This
designation is evidence that the Town intended for the area of Graniteville Road relevant to the
Project to serve as a route for a heightened level of truck traffic. Evidence submitted at trial
indicates that the road has served this purpose for many decades. Trucks also have the option
to exit the property onto Pirie Road, avoiding the area of Lower Graniteville all together. In
addition, some trucks may turn right out of the Project access and go up Graniteville Road.
The evidence at trial indicated that Lmax sound levels from trucks traveling to and from
the Crusher will be the same as Lmax sound levels from existing trucks traffic on the roads. This
is not a situation where the trucks to be added to the road system will be creating a different or
louder noise than existing trucks. Trucks from the Project will be following the same routes and
through the same acceleration areas as existing trucks. As a result, there will be no change in
Lmax sound levels due to the additional truck traffic associated with the Project.
Further, sound from the existing trucks form the context and soundscape of the
surrounding area, zoned for industrial use and designated, in part, as a Truck Route. The
instantaneous sound level of existing trucks on area roads is between 66 and 82 dBA Lmax. The
exact level varies due to setback distances, natural buffers, landscaping, and whether trucks are
coasting or accelerating when measured. The sound level of the trucks proposed to be added
6
We note that we remain free to refer to other noise metrics to corroborate findings and conclusions
regarding Lmax of off-site trucks, the frequency of passes of those trucks and overall compliance with Criterion 8.
Mr. Duncan credibly testified that Leq levels are helpful to assess cumulative noise impacts from additional off-site
truck traffic and that Leq 1-hr is an appropriate measure of this.
7
Applicants offer that they have specified the average number of loaded crushed stone truck trips to
ensure that the maximum noted will not be occurring an excessive number of days.
41
by the Project along the same area roads is the same, between 66 and 82 dBA Lmax, varying for
the same reasons. Further, the Crusher trucks will be operating during normal ROA business
hours, which is also when other trucks unrelated to the Crusher will also be going up and down
the road, consistent with the existing industrial uses in the area. Therefore, the Court concludes
the noise levels alone would not result in an adverse aesthetic impact on the area. This is further
supported when considering the Project context and the actual experience with trucks travelling
to and from the Crusher and the ROA site in the past. The Project and its associated truck traffic
therefore will "fit" within the character of the surrounding area, which is itself currently
characterized by industrial uses and the sounds that are associated with industrial uses, as
analyzed below when considering if an impact is “undue.” This is not the end of our analysis of
off-site truck traffic, however.
The frequency of truck traffic will increase because of the Project. We note that traffic
will be dispersed among three entry and exit routes. Project truck traffic is of the same type and
has the same noise and level of noise as existing truck traffic. While 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. Therefore, the Court
concludes off-site truck traffic proposed by Project will have an adverse impact on the area.
While the Barre Granite standard is formulated in Lmax and, under Lathrop, we are
required to make findings regarding the frequency of truck trips for off-site truck traffic, we note
that Appellants' expert, Mr. Blomberg, testified that this is an inappropriate way to measure
noise impacts over time from an acoustical science perspective. Rather, Mr. Blomberg opined
that to understand noise impacts associated with increasing the number of truck trips, we must
consider sound levels across a longer time span, which would require us to at least consider an
equivalent sound level, or Leq.
Applicants did this by modeling traffic noise from the Project based on a Leq 1-hr
measure in addition to their Lmax analysis. Mr. Duncan credibly testified that one hour is an
appropriate length of time to capture and accurately reflect the impact of additional truck traffic
caused by the Project. RSG modeled equivalent Leq sound levels from the 150-maximum level
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of trucks originally proposed by Applicant and assumed that all truck traffic would travel down
Graniteville Road. Based that level of traffic, the Project would account for a 1 to 4 dBA Leq
increase in sound, averaged across a one-hour period. We conclude that this is a slight increase
in sound levels, especially considering this is an area categorized by industrial use and the road
has been identified by the Town as a designated truck route. It is also significant that the noise
levels would not require mitigation under the VTrans Guidelines applicable to highway projects.
See VTrans Noise Analysis and Abatement Policy. Further, Mr. Duncan testified that actual
sound levels typically prove in practice to be lower than those predicted using RSG modeling
software.
In summary, we conclude that noise from off-site truck trips will fit within the existing
acoustical context of the Rock of Ages/Graniteville Road area and comply with the Barre Granite
standard, however, the increase in frequency of truck trips resulting from the Project will have
an adverse aesthetic impact with respect to off-site tuck noise.
2. Undue Adverse Aesthetic Impact
We analyze whether the adverse aesthetic impact with respect to off-site tuck noise is
undue.
a. Clear Written Community Standard
As set forth above, no party offered evidence of a clear written community standard
relating to noise. We therefore conclude that the off-site truck noise does not violate a clear,
written community standard.
b. Shocking to an Average Person
The use of a Truck Route by trucks during business hours along a road which historically
has experienced heavy trucks is within the context of the area. While the Neighbors have
testified that the noise will shock them, this Court must consider the Crusher’s operational
impacts from the perspective of the average person. Goddard Coll., Nos. 175-12-11 Vtec, 173-
12-12 Vtec, at 14 (Jun. 1, 2014) aff’d In re Goddard Coll. CU, 2014 VT 124, 198 Vt. 85.
Mr. Duncan testified that the noise from new trucks associated with the Project will be
the same as the maximum instantaneous, Lmax, sound levels from existing trucks that are
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already using this road. Although the frequency of truck trips may increase, we conclude that
the limits of truck trips proposed the Applicants (maximum and average), the fact that the
increase in traffic will result in only a slight increase in equivalent Leq 1-hr sound levels, and the
limitation on traffic by the Project’s operational hours ensure that noise from additional trucks
will not be shocking.
This conclusion is supported by the actual experience of truck traffic from the Project
over the last five years. In addition, because trucks may exit onto Pirie Road, or turn through
Upper Graniteville, not all truck traffic will be directed onto Graniteville Road.
Again, the Court finds it probative that the two closest neighbors to the Crusher, both of
whom who live along the Graniteville Road Truck Route, have not experienced off-site trucks
relating to the Crusher operations to be shocking or unduly intrusive.
For all of these reasons, we conclude that off-site truck noise from the Crusher in terms
of both frequency and intensity would not be shocking to an average person.
c. Reasonable Mitigation
Lastly, the Court concludes that the Project incorporates sufficient mitigation measures
intended to reduce the impact of off-site truck noise on surrounding areas. First, operation of
off-site trucks will be limited to ROA business hours, which is consistent with when truck traffic
is already being experienced on Graniteville Road. Truck traffic is further limited to 20 Saturdays
per year.
Second, Applicants have provided for a second principal access to the quarry through
Pirie Road. The result of this being that not all Project traffic will be going down the Graniteville
Road Truck Route. Additionally, truck traffic may move up to Upper Graniteville at times.
Finally, at trial Applicants reduced the maximum number of trucks per day by a third,
from 150 trucks to 100 trucks with an average of 60 per day per year. This reduction is further
substantial mitigation of the impacts associated with off-site truck traffic from the project.
No additional reasonable mitigation measures were suggested at trial. We conclude that
the Project has incorporated all reasonable mitigation measures with respect to noise from off-
site trucks.
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The Court therefore concludes that off-site truck noise from the Project will not cause an
undue adverse aesthetic impact and, therefore, complies with Criterion 8 of Act 250 with the
following condition offered by NEMG:
Off-site loaded customer trucks exiting the Project with crushed material shall be
limited to a maximum of 100 loaded customer trucks per day. No more than 70
loaded customer trucks per day exiting the Project with crushed material shall use
Quarry Hill Road until the planned Quarry St./Route 14 intersection signalization
project is completed by VTrans. The average number of loaded customer trucks
exiting the Project with crushed material shall not exceed 60 loaded customer
trucks per day as averaged over a calendar year. Exceedances of the above limits
may occur for specific jobs with the permission of the District Coordinator.
b. Dust
i. Adverse Aesthetic Impact
By their nature, earth extraction operations produce some dust. Dust, in amounts
compliant with relevant regulations and permitting regimes, should therefore be expected at an
existing quarry operation and from its associated industrial activities, such as rock crushing.
As discussed above in the context of Criterion 1, the Project incorporates significant dust
control and mitigation measures approved in the Project’s Air Pollution Permit. First, under the
Air Pollution Permit, the Crusher is prohibited from discharging undue air pollutants, including
dust and particulate matter, from the ROA property.
For the reasons set forth in Criterion 1, the Neighbors’ fail to provide credible evidence
of adverse impacts from dust. Under our Criterion 1 analysis the Neighbors’ evidence failed to
show that the Project operations would result in undue air pollution. We similarly find it fails to
reliably show an adverse aesthetic (Criterion 8) impact from Crusher dust. We again find
compelling the testimony of neighbors Ms. Cloud and Ms. Larson, who credibly testified to the
lack of adverse impacts from dust relating to the Project. Mr. Hinckley’s modeling supports our
conclusion that the Project would not result in an adverse dust impact.
We conclude that the Project, as permitted under its Air Pollution Permit and with the
conditions imposed by this Court, fits within the context of the area with respect to dust and will
not have an "adverse" aesthetic effect on the area.
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In light of the Neighbors’ offer of dust impacts, we take the conservative approach and
complete the second ‘undue’ adverse analysis for potential dust impacts even though we
conclude there is no adverse impact.
ii. Undue Adverse Aesthetic Impact
1. Clear Written Community Standard
The parties provided no evidence of a clear, written community standard concerning
dust. The Court therefore concludes that aesthetic impacts from dust do not violate a clear,
written community standard.
2. Shocking to an Average Person
We concluded above that dust from the Project complies with Criterion 1 and will not
cause undue air pollution. Several of the Neighbors complained about dust from the Project
and provided videos and photographs in support of their assertion that the dust was shocking.
As detailed above with respect to Criterion 1, we do not find these videos to be a fair an accurate
representation of the Project’s impacts. We do find it compelling that the two closest neighbors
to the Crusher credibly testified that they do not experience shocking dust impacts from
crushing operations; including the periods when the Project was operational. One of the closest
neighbors spends extensive amounts of time outside gardening and has not noticed dust
effecting her garden, yard or house.
While we acknowledge that the Neighbors have provided testimony regarding how the
dust impacts are shocking to them, this Court must consider the Crusher’s impacts from the
perspective of the average person. Goddard Coll., Nos. 175-12-11 Vtec, 173-12-12 Vtec, at 14
(Jun. 1, 2014) aff’d In re Goddard Coll. CU, 2014 VT 124, 198 Vt. 85. Considering the Project’s
potential dust impacts, and the nearest neighbors’ credible testimony that Project dust does not
impact them, the Court concludes that Project dust impacts would not be shocking to an average
person.
3. Reasonable Mitigation
The Project has incorporated significant mitigation measures with respect to dust, as
discussed with above under Criterion 1. Measures imposed by the Air Pollution Permit include
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the continual use of wet suppression at the Crusher transfer points and wetting down and
sweeping of the Project access road.
These measures reduce the potential for dust from the Project or its related truck or
equipment operations to move off-site in amounts which would be distinguishable from the
existing environmental conditions present in the Project area. NEMG provided credible
evidence that the use of wet suppression would be 89% effective at the site. Although the
Neighbors disagree with this offer, they did not provide credible refuting evidence.
Parties did not propose alternative or additional mitigation measures for dust. The Court
therefore concludes that the Project employs all reasonable mitigation with respect to dust.
c. Criterion 8 Conclusion
For the foregoing reasons, the Court concludes that the Project satisfies the Quechee test
with respect to aesthetic impacts related to noise and dust, including off-site truck noise, and
that the Project therefore satisfies Criterion 8, Aesthetics, of Act 250. As analyzed above, we
reach this conclusion, in part, by imposing conditions limiting or reducing noise impacts.
As conditioned, the Project will not have an undue adverse aesthetic impact with
respect to noise and dust and, therefore, conforms with Criterion 8.
Conclusion
We conclude that NEMG’s crushing Project satisfies Criterion 1 with the following
conditions:
1. The Project shall be completed and operated in accordance with Air
Pollution Control Permit to Construct #AP-14-007 issued by the Agency of Natural
Resources Air Pollution Control Division and dated February 19, 2014. The
Permitee will abide by all conditions and protocols set forth in that Permit
including, but not limited to, conditions regarding the general operation and
maintenance of the Crusher, conditions pertaining to ongoing inspection, wet
suppression, monitoring and testing and provisions regarding dust control. Non-
material amendments to the Air Pollution Control Permit shall be deemed
automatically incorporated herein.
2. The Permittee shall sweep or spray down the paved portion of the access
road to the Crusher with water and shall spray down the immediate area of the
Crusher as needed so as to minimize fugitive dust.
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We further conclude that the crushing Project will comply with Criterion 8 as to the on-
site noise impacts from the Crusher itself and noise impacts from off-site truck traffic with the
following conditions:
3. The construction and maintenance of two aggregate stockpile
berms 15.5 and 13 feet in height in the locations depicted on the scaled
map submitted as Exhibit 65.
4. Installation of sound barrier blankets on the primary crusher and the
primary screener as described on Exhibit 65, 74 and Exhibit 77 and as
depicted on Exhibits 66 - 73.
5. The installation of a rubber screen deck on the primary screener.
6. Installation of broadband or white noise back-up alarms on all
NEMG onsite mobile equipment.
7. Limiting the use of the freestanding rock hammer to periods when
the main Crusher plant is not operating as described in Exhibit 65.
8. Limitation of Crusher equipment and off-site truck operations to
Rock of Ages business hours as noted below.
9. The Project loaders and on-site haul truck will use broadband or
white noise back-up alarms.
10. Normal hours of Crusher operation will be 6:00 AM to 4:00 PM
Monday through Saturday. Saturday operations will be limited to a
maximum of 20 Saturdays per year. Variance from these hours and days
may be allowed in special circumstances with prior permission of the
District Coordinator.
11. Off-site loaded customer trucks exiting the Project with crushed
material shall be limited to a maximum of 100 loaded customer trucks per
day. No more than 70 loaded customer trucks per day exiting the Project
with crushed material shall use Quarry Hill Road until the planned Quarry
St./Route 14 intersection signalization project is completed by VTrans. The
average number of loaded customer trucks exiting the Project with crushed
material shall not exceed 60 loaded customer trucks per day as averaged
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over a calendar year. Exceedances of the above limits may occur for specific
jobs with the permission of the District Coordinator.
Lastly, we conclude that the crushing Project will comply with Criterion 8 as to dust.
This matter is remanded to the District 5 Environmental Commission for the
ministerial act of issuing a Land Use Permit consistent with the Commission’s June 14, 2017
decision as modified by this decision.
A judgment order is issued concurrently with this decision. This concludes this
matter.
Electronically signed on June 20, 2018 at 10:39 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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