In re N. E. Materials Grp., LLC

• Citation: 2017 VT 43
• Decision Date: 26 May 2017
• Docket Number: No. 2016-170,2016-170
• Court: United States State Supreme Court of Vermont
• Parties: In re North East Materials Group, LLC Amended Act 250 Permit (Russell Austin, Pamela Austin, Julie Barre, Marc Bernier, et al., Collectively, Neighbors for Healthy Communities, Appellants)

2017 VT 43

In re North East Materials Group, LLC Amended Act 250 Permit

(Russell Austin, Pamela Austin, Julie Barre, Marc Bernier, et al.,

Collectively, Neighbors for Healthy Communities, Appellants)

No. 2016-170

Supreme Court of Vermont

October Term, 2016

May 26, 2017

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Environmental Division

Thomas G. Walsh, J.

Laura B. Murphy and Douglas A. Ruley, Environmental and Natural Resources Law Clinic, South Royalton, for Appellants.

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

PRESENT: Dooley, Skoglund, Robinson and Eaton, JJ., and Carlson, Supr. J., Specially Assigned

¶ 1. SKOGLUND, J. Neighbors for Healthy Communities (neighbors) appeal the Environmental Division's decision granting North East Materials Group, LLC, (NEMG) an Act 250 permit for operating an asphalt plant. Neighbors specifically challenge the court's findings and conclusions under Criterion 5 and Criterion 8 of Act 250, claiming that conditions imposed by the court pursuant to these two criteria repeat existing requirements that NEMG did not or could not comply with and, thus, were insufficient to meet Act 250's criteria. We affirm.

¶ 2. Pursuant to a permit approved by the District Five Environmental Commission in January 2013, NEMG constructed a hot-mix asphalt plant on the Rock of Ages quarry tract in Barre, Vermont. Neighbors appealed the permit to the Environmental Division and NEMG cross-appealed. Prior to trial, neighbors and NEMG stipulated to a limited review of NEMG's permit to ensure it complied with Act 250; specifically, neighbors sought examination of air pollution controls under Criterion 1, traffic concerns under Criteria 5 and 9(k), and aesthetics under Criterion 8.

¶ 3. The Environmental Division conducted a three day hearing on the permit in early May 2015 and found the following general facts. The asphalt plant is on the south side of Graniteville Road, one of the roads that bisects the Rock of Ages property. This site is close to the village of Upper Graniteville, which is mostly residential, and the village of Lower Graniteville, which is a mix of businesses and residences. The asphalt plant is a batch-type plant, meaning hot-mix asphalt is not stored for extended periods of time but is made on an as-needed, per-truck-load basis. Between the plant's construction in the summer of 2013 and the May 15, 2015 hearing, the plant had two operating seasons. An operating season extends from May 1 through mid-November, from 6 a.m. to 4 p.m. six days a week. The approved maximum operating capacity of the plant is 180 tons of asphalt per hour, with a rolling average production limit of 4500 tons per week during any given 45-day period.

¶ 4. After making these general findings, the Environmental Division made specific findings and conclusions of law related to the Act 250 criteria challenged by neighbors. Ultimately, the court affirmed the district commission's approval of the permit but imposed two conditions addressing unsafe traffic conditions under Criterion 5 and one condition to mitigate undue adverse odors under Criterion 8.

¶ 5. On appeal, neighbors challenge the viability of these three conditions, broadly arguing that the new conditions repeat existing requirements that NEMG did not or could not comply with and, thus, were insufficient to meet Act 250's criteria.¹

¶ 6. To be clear, this matter is not an enforcement action. Act 250 vests the Natural Resources Board (NRB) and the Agency of Natural Resources (ANR) with the power to enforce compliance with Act 250 permits. See 10 V.S.A. § 6027(g) (authorizing NRB to "initiate enforcement" of Act 250 permits and to "petition the Environmental Division for revocation" of Act 250 permits for, among other things, "noncompliance with any permit or permit condition"); id. § 8003 (stating NRB has discretion to institute enforcement actions); id. § 8004 (providing that NRB and ANR act cooperatively to enforce Act 250). A district commission does not possess the authority to determine whether violations of Act 250 permits exist or to initiate enforcement actions. In re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 14, ___ Vt. ___ 143 A.3d 1086.

¶ 7. Instead, the district commission's authority "is limited to considering permit applications in the context of [Act 250's] ten statutory criteria and either approving or denying the application," as well as amending permits. Id. Similarly, when reviewing a permit granted by a district commission, the Environmental Division may consider the statutory criteria and affirm the issuance of a permit contingent on new "conditions and requirements mitigating the impact of particular development." In re North East Materials Grp. LLC Act 250 JO # 5-21, 2015 VT 79, ¶ 27, 199 Vt. 577, 127 A.3d 926. Thus, the question before us is whether the Environmental Division's findings support the court's conclusion that the conditions imposed would mitigate the adverse impacts of the plant's traffic and odor,² not whether the project failed to comply with a permit condition.

¶ 8. This is a question we review deferentially, unlike the court's legal conclusions, which we review de novo. See In re Route 103 Quarry, 2008 VT 88, ¶ 4, 184 Vt. 283, 958 A.2d 694 (noting that review of Environmental Division's decision is "limited" and that appellants "must overcome a deferential standard of review to prevail on their challenge to the findings and conclusions underlying the court's decision"); In re Lathrop Ltd. P'ship I, 2015 VT 49, ¶ 21, 199 Vt. 19, 121 A.3d 630 ("Although we review the environmental court's legal conclusions de novo, we will uphold those conclusions if they are reasonably supported by the findings." (citation and quotation omitted)). Our deference is based, partially, on the Environmental Division's "specialized knowledge in the environmental field" and, "[a]bsent compelling indications of error, we will sustain the [Division's] interpretation on appeal." In re Nehemiah Assocs., 168 Vt. 288, 292, 719 A.2d 34, 36 (1998).

¶ 9. Further, any conditions imposed must be reasonable in light of the Environmental Division's findings. In re Denio, 158 Vt. 230, 240, 608 A.2d 1166, 1172 (1992). We will not upset those findings unless, "taking them in the light most favorable to the prevailing party, they are clearly erroneous." In re Shantee Point, Inc., 174 Vt. 248, 263, 811 A.2d 1243, 1255 (2002). Moreover, the Environmental Division's findings "will not be disturbed merely because they are contradicted by substantial evidence; rather, [an appellant] must show that there is no credible evidence to support them." In re Miller Subdivision Final Plan, 2008 VT 74, ¶ 13, 184 Vt. 188, 955 A.2d 1200 (emphasis added).

¶ 10. With this standard in mind, we examine the Environmental Division's specific findings and conclusions of law relating to traffic under Criterion 5 and undue adverse odors under Criterion 8.

I. Criterion 5—10 V.S.A. § 6086(a)(5)

¶ 11. Under 10 V.S.A. § 6086(a)(5)(A), before issuing a permit, the district commission must determine that a project "[w]ill not cause unreasonable congestion or unsafe conditions with respect to use of the highways, waterways, railways, airports and airways, and other means of transportation existing or proposed." Pursuant to this provision, the Environmental Division made the following findings.

¶ 12. The hot-mix asphalt manufactured in the plant is sold and transported off the Rock of Ages quarry site in trucks not owned by NEMG. Two types of trucks transport the asphalt: large dump trucks, which are most common, and long, gondola-type trucks similar in length to tractor-trailer trucks, which are less common.

¶ 13. Currently, the trucks may enter the property only at the main quarry entrance, on the northern end of the property. This entrance is on Graniteville Road, between Upper and Lower Graniteville. Trucks exiting through this northern entrance must turn left, or northwest, onto Graniteville Road and follow the road through Lower Graniteville to reach Vermont Route 14, U.S. Route 302, or Vermont Route 110. This route has been designated a truck route by Barre.

¶ 14. A second access point is planned at Pirie Road, to the south of the main quarry entrance. Once open, trucks will enter the property via Pirie Road and then continue north through internal quarry roads until they reach the plant. Trucks exiting through this southern access point will either be able to turn south onto Pirie Road and continue onto Vermont Route 14 or turn north onto Pirie Road, which eventually turns into Baptist Street and joins with Graniteville Road in Lower Graniteville.

¶ 15. The point at which Baptist Street joins Graniteville Road in Lower Graniteville is a three-way junction. To stay on Graniteville Road at this junction, trucks leaving the quarry viathe northern entrance must take a sharp right curve to the north. By contrast, trucks approaching from the planned southern exit via Baptist Street would simply continue straight to merge with Graniteville Road. Vehicles approaching the junction from either direction have sufficient sight lines to observe other vehicles and stop in time; these sight lines comply with standards for roadway designs.

¶ 16. During the periods of 2003-2007 and 2008-2012, the Vermont Agency of Transportation designated a 0.3 mile section of the curve along Graniteville Road near the junction with Baptist Street a high crash location (HCL). An HCL designation is a screening device used by transportation agencies to...