In re North East Materials Group, LLC/Rock of Ages Corp. Act 250 Permit (Russell Austin, Pamela Austin, Julie Barre, Marc Bernier, Collectively, Neighbors for Healthy Communities, Appellants), 217 A.3d 541

Background

NEMG sought an Act 250 permit for a rock‑crushing operation at Rock of Ages (ROA) quarries in Graniteville, Barre; crushing had operated since 2009 but was halted after this Court held Act 250 jurisdiction in prior proceedings.
The crusher generates on‑site dust (including respirable crystalline silica) and off‑site truck traffic along Graniteville Road, which runs through residential Upper and Lower Graniteville.
ANR issued an air‑pollution control permit in 2014 requiring wet suppression and other controls; Act 250 Rule 19 creates a rebuttable presumption of no undue air pollution from such permits.
The Environmental Commission denied the Act 250 permit as to Criteria 1 (air pollution) and 8 (aesthetics/noise); the Environmental Division reversed and issued the permit subject to mitigation conditions.
The court’s findings relied on AERMOD air modeling (using EPA AP‑42 emission factors and expert testimony about wet suppression effectiveness and Method 9 opacity testing) and on noise modeling using both Lmax (instantaneous) and Leq(1‑hr) measures plus resident testimony and operational limits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Criterion 8: off‑site truck noise (aesthetics)	Increased frequency of high‑decibel truck passes will create undue adverse aesthetic impact; court should focus on Lmax peaks per Lathrop/OMYA	Noise fits the industrial context; Lmax considered but Leq(1‑hr), frequency, resident testimony, context, and mitigation show impact is not undue	Affirmed: court permissibly considered Lmax and Leq together, found adverse impact from frequency but not undue given context and mitigation
Criterion 1: silica dust (air pollution)	Court’s factual findings (modeling, AP‑42 reliance, wet suppression efficacy) are erroneous; photos/videos show concrete harm; court failed to make independent findings about wet suppression (Hinesburg Hannaford)	AERMOD modeling, Method 9 tests, expert testimony support that wet suppression reduces silica to acceptable levels; ANR permit creates presumption; plaintiffs’ photos/videos were ambiguous and contradicted	Affirmed: factual findings not clearly erroneous; modeling and mitigation credible; Hinesburg Hannaford distinguishable; Criterion 1 satisfied
Use of AP‑42 in AERMOD modeling	AP‑42 is unreliable and EPA discourages its use for permit compliance, so model results are suspect	AP‑42 emission factors are widely used and, while imperfect, are appropriate inputs; expert explained limits and ranges were tested	Affirmed: court reasonably credited expert use of AP‑42 and AERMOD; evidence supports modeling conclusions
Weight of lay photos/videos and resident testimony	Visual evidence demonstrates significant dust impacts and should outweigh modeling	Photos/videos are snapshots, often unclear as to source/timing; court credited some resident testimony but found many residents reported minimal impact	Affirmed: court acted within fact‑finding discretion to discount ambiguous images and weigh testimony as it did

Key Cases Cited

In re N. E. Materials Grp. LLC (NEMG II), 202 Vt. 588, 151 A.3d 766 (Vt. 2016) (held prior crushing operation required Act 250 permit)
In re Application of Lathrop Ltd. P’ship I, 199 Vt. 19, 121 A.3d 630 (Vt. 2015) (Criterion 8: must assess Lmax instantaneous events and frequency when evaluating undue noise)
In re Hinesburg Hannaford, 206 Vt. 118, 179 A.3d 727 (Vt. 2017) (trial court must address uncontradicted evidence that a mitigation system will not work)
Hawk Mountain Corp. v. Environmental Bd., 149 Vt. 179, 542 A.2d 261 (Vt. 1988) (compliance with government air standards is an important but nondispositive factor for Criterion 1)
McShinsky v. Town of ..., 153 Vt. 586, 572 A.2d 916 (Vt. 1990) (appellate deference to trial court credibility and factual findings)