                                          STATE OF VERMONT
SUPERIOR COURT                                                               ENVIRONMENTAL DIVISION
Vermont Unit                                                                  Docket No. 143-10-12 Vtec


N.E. Materials Group LLC A250 JO #5-21                            DECISION ON THE MERITS



                                            Decision on the Merits
          Thirteen citizens, collectively “Neighbors for Healthy Communities” (Appellants), appeal
a September 28, 2012 jurisdictional opinion (JO) of the District 5 Environmental Commission
Coordinator (District Coordinator), which determined that North East Materials Group, LLC’s
(NEMG) rock crushing operations, located at the Rock of Ages (ROA) quarry in the Town of
Barre, Vermont,1 do not require an Act 250 permit.2 Appellants’ Statement of Questions poses
11 questions for this Court’s review. In a May 9, 2013 decision, we denied in part and granted
in part Applicants’ motion to clarify and dismiss certain questions within Appellants’ Statement
of Questions. Appellants’ Questions 1 through 4 and 6 through 9 remain at issue for this merits
decision. In a November 22, 2013 decision, we denied Appellants’ motion for summary
judgment, denied Appellants’ motion to strike and preclude, and denied Applicants’ motion to
strike.


1
  Although this appeal is captioned “In re North East Materials Group, LLC,” the Rock of Ages Corporation, the
owner and operator of the Rock of Ages quarry, is also an appellee. NEMG and Rock of Ages Corporation are
referred to collectively as “Applicants” or “Appellees,” unless otherwise noted.
2
  The procedural history of this appeal is as follows:
    •     November 2, 2010: District Coordinator Ed Stanak issued a JO finding that the addition of a crusher at the
          quarry did not constitute a substantial change to a development in existence prior to enactment of Act
          250 and therefore no Act 250 permit was required.
    •     May 3, 2012: Appellants requested a JO on whether the addition of a crusher constituted a substantial
          change.
    •     May 16, 2012: District Coordinator Boolie Sluka issued a JO affirming District Coordinator Stanak’s
          November 2, 2010 JO. Appellants requested reconsideration of District Coordinator Sluka’s decision.
    •     September 28, 2012: District Coordinator Warren Foster issued a JO affirming District Coordinator Sluka’s
          May 16, 2012 decision, again finding that Applicants’ rock crushing operations do not constitute a
          substantial change and therefore do not require an Act 250 permit. Appellants’ appeal of District
          Coordinator Foster’s September 28, 2012 decision is now before us.

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        In 2009, NEMG began operating the rock crushing at issue subject to a December 17,
2008 JO, No. 5-01, which determined that the pre-existing crushing operation did not constitute
a “substantial change” and did not require an Act 250 permit. The District Coordinator made
additional jurisdictional determinations in 2010 and 2012 concluding that rock crushing
operations on the ROA site did not constitute a substantial change to a pre-existing
development and that therefore the associated rock crusher did not require an Act 250 permit.
        On April 11, 2012, Applicants filed an Act 250 application with the District 5
Environmental Commission (Commission) to operate a 180 ton/hour hot mix asphalt plant on
the Rock of Ages property. On January 24, 2013, the Commission approved the application and
issued the permit. This permit was later modified by a February 26, 2013 decision on motions
to alter. In re: North East Materials Group, LLC, No. 5W0966-6 (altered), Land Use Permit (Dist.
5 Envtl. Comm’n, Feb. 26, 2013). Appellants appealed the issuance of that land use permit to
this Court; that appeal is currently a separate case, to be decided independently. In re North
East Materials Grp. Am. Act 250 Permit, No. 35-3-13 Vtec. The only matter at issue here is
Appellants’ appeal of the September 28, 2012 JO finding that Applicants’ rock crushing
operation is not subject to Act 250 review.
        On December 3 and 4, 2013, the Court held a two-day merits hearing at the Vermont
Superior Court, Environmental Division in Berlin, Vermont. The Court attempted a site visit on
December 3, 2013, however, due to weather and poor visibility the site visit was postponed. At
the conclusion of the merits hearing on the afternoon of December 4, 2013, the Court
conducted the site visit pursuant to the parties’ Stipulated Site Visit Itinerary. Appearing at the
site visit and merits hearing were Attorneys Alan P. Biederman and James Goss, representing
the Applicants, and Attorneys Christopher Ahlers and Douglas Ruley, representing the
Appellants.3 Attorney Gregory Boulbol, representing the Natural Resources Board, attended
the trial but did not actively participate. Attorney Boulbol did not attend the site visit.
        Marc and Lori Bernier, two of the Appellants, appeared at the beginning of trial as self-
represented litigants for the limited purpose of being heard on a motion to postpone the trial.

3
  Appellants also filed a request to allow the appearance of Mr. Brett Dugan, a Vermont Law School student, on
their behalf. Because Mr. Dugan could not obtain written consent of all Appellants as required by § 13 of the Rules
of Admission to the Bar of the Vermont Supreme Court, he did not take an active role before the Court.

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Due to a provision within their residential property deed, the Berniers raised property rights
concerns and moved that the Environmental Division trial be postponed to provide time for a
civil action to be commenced and decided. We denied the Berniers’ motion. Thereafter, and
for the remainder of trial, Attorneys Ahlers and Ruley represented the Berniers along with the
other Appellants.
       Appellants’ Questions 1–4 and 6–9 ask whether ROA’s and NEMG’s crushing activities
are a pre-existing development, whether any pre-existing development has been abandoned,
and whether any pre-existing development has undergone a substantial change.
       Based upon the evidence presented at trial, including that which was put into context by
the site visit, the Court renders the following Findings of Fact.
                                          Findings of Fact
1.     The Rock of Ages Corporation is a quarrying operation comprised of several smaller
individual quarries active from the late 1800s to current times, now all aggregated as a single
parcel under the Rock of Ages Corporation ownership and operation.
2.     All total, ROA comprises approximately 930 acres in Barre, Vermont and 230 acres in
Williamstown, Vermont.
3.     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.
4.     These quarries are adjacent to one another and are aligned in a more or less north –
south configuration.
5.     Several roads transect the ROA property, including Graniteville Road.           Roads also
connect work areas throughout the ROA property.
6.     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, as is the NEMG crushing operation at issue here.
7.     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.”


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8.     Quarrying activity moves deeper into the earth over time. Typically, higher quality
material is found the deeper one mines a quarry.
9.     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.
10.    At the inception of a quarry, the overburden soil and rock is removed to expose the
underlying granite. The granite closest to the surface is called “bedding” and is typically
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.
11.    This overburden is waste material unless the rock component is crushed into usable and
salable product. Up to 80 percent of quarry material is waste.
12.    “Grout” is waste granite which is not suitable for the high-end dimension stone.
13.    Crushing makes use of the waste from development material, including grout, by
reducing the material to usable and salable sizes.
14.    Much of the material in modern day grout piles is typically too large for crushing.
15.    The crushing process is common at dimension quarries in order to utilize the otherwise
waste material.
16.    Crushing rock at various locations is customary in the industry because the equipment is
often portable and the source of material may change.
17.    Intermittent rock crushing is also customary based on waste material levels and demand
for crushed rock.
18.    Crushing entails drilling, blasting, removal, and transport of 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.
19.    Don Murray, ROA Engineer, has personal knowledge of crushing at ROA since the 1960s.
Mr. Murray has completed significant research into crushing activities at ROA preceding 1960.




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20.     As early as 1904 there was a crushing plant in Barre installed by J.M. Boutwell at the
Boutwell, Milne & Varnum Corporation quarry. This crushing plant utilized waste stone from
the quarries.
21.     Photographic evidence shows that crushing activity took place around 1912 near the
current compressor building on the south side of Graniteville Road in close proximity to NEMG’s
crushing location. It was common at this time for crushed material to be placed in rail cars and
transported off-site.
22.     As far back as 1926, the former Wells-Lamson Quarry Company conducted crushing,
including a crushing operation producing poultry grit and road aggregate. This crushing
continued through the 1940s and into the 1960s. By 1948, this quarry and crusher had been
conveyed to ROA.
23.     Wells-Lamson rock crushing operations provided granite sub-base material for
Interstate 89 in 1958 and 1959. This crushing operation ceased shortly after this time. This
crushing operation had a capacity of 1,000 tons per day. Railcars were used to transport the
crushed material. A railcar has a load capacity of approximately 100 tons of crushed rock.
Hundreds of railcars of crushed rock were transported off-site for Interstate 89 development.
24.     The Wells-Lamson rock crushing operations produced eight sizes of stone ranging from
300 pound individual pieces to fine dust, all for use in road building. The crushing equipment
included 2 Hydrocone gyratory crushers, screening equipment, electric motors, and V-belt
drivers.
25.     Kelley Construction, Inc. contracted with ROA in August 1969 to remove overburden and
rock in the Smith Quarry. Activities included the planned crushing of approximately 40,000
cubic yards of material for sale. This work was undertaken between September 1969 and April
1970.
26.     In 1988, Cooley Asphalt Paving Corporation entered into a 10 year contract with ROA to
remove and crush granite. Cooley had been performing this activity prior to 1988. Cooley
removed and crushed an estimated 200,000 tons or more of granite during the contract period.




                                               5
27.      McCullough Crushing, Inc. was awarded an Air Pollution Control Permit in January 1990
from the Vermont Agency of Natural Resources for a portable crushed stone/gravel processing
plant.
28.      From July 1990 to November 1990 McCullough Crushing removed more than 55,000
tons of crushed granite from the Adams Quarry.
29.      McCullough Crushing’s equipment included a jaw crusher, a cone crusher, a conveyor,
and a screen. This equipment is similar to NEMG’s crushing equipment.
30.      In 1992 and 1993, crusher material was hauled from three different areas at ROA
property, including “the Adams quarry” south of the NEMG site, “the Notch,” and “the
Stockpile” near the area where NEMG is currently located. Pike Industries crushed this material
at the Wells-Lamson quarry site north of ROA property.
31.      During the 1990s, McCullough’s crushing took place in a similar area to NEMG’s current
location. This activity included similar truck traffic.
32.      The E.L. Smith & Company quarry included crushing activity from 2005 to 2007. The E.L.
Smith & Company quarry is located approximately 0.8 miles to the north of NEMG operations.
33.      NEMG entered into a contract with ROA to crush waste rock on-site into salable
material.
34.      The rock crusher at issue, operated by NEMG between the Smith and Adam quarries,
began operating in 2009 after the District 5 Environmental Commission Coordinator
determined, in a December 17, 2008 JO, No. 5-01, that the proposed crushing operation did not
require an Act 250 permit.
35.      The District Coordinator issued additional jurisdictional opinions in 2010 and 2012
finding that rock crushing operations adjacent to the Smith Quarry at Rock of Ages did not
constitute a substantial change to a pre-existing development and that the associated rock
crusher therefore did not require an Act 250 permit.
36.      NEMG crushed 20,285 tons of material in 2010; 155,577 tons in 2011; 89,667 tons in
2012; and 59,279 tons in 2013. The spike in crushing in 2011 was due to Tropical Storm Irene
when the Vermont Natural Resources Board suspended Act 250 permitting needs for gravel and




                                                   6
quarry operators due to the increased need for road-building material in order to rebuild
infrastructure destroyed in the storm.
37.    NEMG’s crushing activity is intermittent. NEMG crushes when material is needed.
Crushing typically does not take place during the winter months.
38.    In 2011, NEMG crushed on 53 days. In 2012, NEMG crushed on 83 days, and in 2013,
NEMG crushed on 43 days.
39.    NEMG’s crushing operations have moved around the ROA property over this time.
40.    NEMG’s current crushing operations include crushing and screening. The equipment
includes two jaw crushers, a cone crusher, a triple-deck screen, loaders, and excavators.
41.    The primary crusher breaks large material into smaller pieces that fit into the jaw
crusher. The primary crusher is a hydraulic hammer.
42.    There have been machinery improvements over time since the first crusher at the
Boutwell quarry in the early 1900s; however, the process of crushing remains the same. A large
primary crusher crushes rock followed by a smaller crusher further reducing rock size. Screens
are used to separate the crushed rock by size suitable for various purposes.
43.    NEMG does not own delivery trucks. Material is transported off-site by customers using
their own trucks. NEMG does own one truck that hauls grout.
44.    On June 5, 2013, ANR issued an Air Pollution Control Permit to Construct to NEMG for
installation of crushing, screening, and conveying equipment. The ANR permit allows two
primary crushers, two secondary crushers, three screening decks, discharge and stacking
conveyors, and a diesel powered electric generator.
45.    Neighbors in the area of crushing experience noise, dust, and traffic. Common noises
are material being loaded or unloaded. Dust accumulates 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.
46.    Dimension stone is typically transported on flatbed tractor trailer trucks. Crushed
material, also called aggregate, is typically transported in dump trucks. ROA’s dimension stone
operations also use dump trucks.
47.    ROA’s dimension stone quarrying activities also create noise, dust, and truck traffic.


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                                        Conclusions of Law
       Act 250, 10 V.S.A. §§ 6001 through 6093, was enacted over forty years ago “to protect
Vermont’s lands and environment by requiring statewide review of ‘large-scale changes in land
utilization.’” In re Audet, 2004 VT 30, ¶ 13, 176 Vt. 617 (mem.) (quoting Comm. to Save
Bishop’s House, Inc. v. Med. Ctr. Hosp. of Vt., Inc., 137 Vt. 142, 151 (1979)). A party proposing
land “development” must obtain an Act 250 permit. 10 V.S.A. § 6081(a). “Development” is
defined as one or more of 10 listed activities, including the construction of improvements for
commercial or industrial purposes on a tract or tracts of land involving more than 10 acres in a
municipality that has adopted permanent zoning and subdivision regulations or 1 acre in a
municipality that has not.      10 V.S.A. § 6001(3)(A)(i)–(ii).    Act 250 Rule (2)(C)(3) defines
“construction of improvements” as “any physical action on a project site which initiates
development,” subject to certain enumerated exceptions. Natural Resources Board Act 250
Rules, Rule 2(C)(3), Code of Vt. Rules 16-5-200:2(C)(3) (WL) (2009).4
       Any development that was commenced before June 1, 1970 is a “pre-existing
development” and is exempt from the permit requirement. Id. at 2(C)(8); 10 V.S.A. § 6081(b).
A permit is required, however, for any “substantial change” to a pre-existing development,
defined as “any change in a pre-existing development or subdivision which may result in a
significant adverse impact with respect to any of the [10 Act 250 criteria].” Code of Vt. Rules
16-5-200:2(C)(7) (WL) (2009); 10 V.S.A. § 6081(b).
       Burden of Proof
       The party claiming the pre-existing development exemption (10 V.S.A. § 6081(b)) has
the burden of proving that the development existed prior to June 1, 1970 and that it was not
abandoned. In re Big Rock Gravel, LLC Act 250 Jurisdictional Opinion, No. 174-8-08 Vtec, slip
op. at 7–8 (Vt. Super. Ct. Envtl. Div. Oct. 19, 2010) (Wright, J.). Once a development is
determined to fall within the exemption for pre-existing development, “the burden shifts to the
proponents of jurisdiction to demonstrate that a project represents a substantial change to the
pre-existing development.” In re Vermont RSA Ltd. P’ship, 2007 VT 23, ¶ 10, 181 Vt. 589
(citation omitted). The party seeking an exemption, however, retains the burden of producing
4
  Rule 2(C)(3) was amended in 2013. Code of Vt. Rules 16-5-200:2(C)(3) (WL) (2013). Because the JO was
requested in 2012, the 2009 language applies here.

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sufficient information on the pre-1970 operation for the Court to determine whether a
substantial change exists. Re: Hale Mountain Fish and Game Club, Inc., No. 435, Findings of
Fact, Conclusions of Law, and Order, at 14 (Vt. Envtl. Bd. Aug. 4, 2005). Lastly, “[t]here is no
presumption that a substantial change either has or has not occurred since the enactment of
Act 250.” Re: Vermont RSA Ltd. P’ship, No. 441, Findings of Fact, Conclusions of Law, and
Order, at 7 (Vt. Envtl. Bd. Oct. 20, 2005), aff’d, 2007 VT 23, 181 Vt. 589.
       Pre-existing Development
       Appellants’ Questions 1 and 2 ask the following:
       Whether there was a “pre-existing development” involving a crusher on property
       owned by Rock of Ages as of the effective date of Act 250 (June 1, 1970), within
       the meaning of 10 V.S.A. § 6081(b) and Act 250 Rule 2(C)(8)?
       Whether any quarrying operations on Rock of Ages property prior to June 1,
       1970 constitute a “pre-existing development,” within the meaning of 10 V.S.A. §
       6081(b) and Act 250 Rule 2(C)(8), if there was no rock crushing being performed?
       "Pre-existing development" is defined to include “any development in existence on June
1, 1970 and any development which was commenced before June 1, 1970 and completed by
March 1, 1971.”      Act 250 Rule 2(C)(8), Code of Vt. Rules 16-5-200:2(C)(8) (WL) (2009).
Development built before June 1, 1970 is a “pre-existing development” and is thereby exempt
from Act 250 jurisdiction absent a substantial change. Vermont RSA Ltd. P’ship, 2007 VT 23, ¶ 8
(citing 10 V.S.A. § 6081(b)).

       Our findings, based upon the credible evidence before the Court, demonstrate
significant pre-1970 dimension stone quarry operations throughout the ROA property.
Specifically, starting in the 1800s and continuing to today, granite has been quarried through a
process of cutting and removing large blocks of dimension stone for sale or further processing.
The quarry encompasses more than 1,100 acres. The development of quarries that provide
dimension stone creates large quantities of waste rock not suitable for sale as dimension stone.
This waste is often either stored on site or crushed into usable and salable gravel products.
Crushing operations reduce the volume of waste material and help to recover the cost of
developing a quarry.
       Appellants assert that the rock crushing at issue is separate and distinct from other
quarrying activities. We disagree. The evidence shows that the dimension stone quarrying now
                                                  9
under ROA ownership included rock crushing operations as early as 1904 and has included
intermittent crushing operations at various locations within ROA through to present times.
While crushing may be a particular component of ROA operations, we find that it is not a
separate stand-alone development. Moreover, although evidence of rock crushing at the
northernmost quarry (beyond ROA property lines) does not itself indicate ROA’s pre-existing
development, it supports our finding that there was and continues to be a relationship between
quarrying dimension stone and rock crushing. Appellants’ argument that crushing is merely
desirable but not integral to quarrying dimension stone does not alter this conclusion. The
facts establish that rock crushing has been a part of dimension stone quarrying at ROA since at
least 1904 and it remains a part of such quarrying today. We therefore conclude that the ROA
quarry operations, including crushing activities, are a pre-existing development within the
meaning of 10 V.S.A. § 6081(b) and Act 250 Rule 2(C)(8).

        Pre-existing Exemption Effective Between Entities
        Appellants’ Question 3 asks the following:
        Whether any pre-1970 operation of crushers by legal entities other than Rock of
        Ages and NEMG constitutes a “pre-existing development,” within the meaning of
        10 V.S.A. § 6081(b) and Act 250 Rule 2(C)(8), upon which Rock of Ages or NEMG
        may assert an exemption from jurisdiction?
        “Act 250 speaks to land use and not the particular institutional activity associated with
that land use . . . .”   In re Baptist Fellowship of Randolph, Inc., 144 Vt. 636, 639 (1984).
Furthermore, Act 250 permitting decisions attach to and run with the land itself irrespective of
changes in ownership. In re Estate of Swinington, 169 Vt. 583, 585 (1999) (“[L]and use permits
‘run with the land’ rather than exist as licenses personal to the licensees.”); Act 250 Rule
33(C)(3), Code of Vt. Rules 16-5-200:33 (WL) (2009). From the 1800s to present times, fee
interests in the land at issue in this appeal were conveyed from one legal entity to another.
Presently, ROA holds all relevant fee interests. Furthermore, at various times, legal entities
without a fee interest in the quarry have carried out crushing activities by contracting with the
fee owner. These facts do not alter the status of any pre-existing development exemption from
Act 250 jurisdiction attaching to and running with ROA’s land. We therefore conclude that ROA
quarrying and associated crushing is a pre-existing development even though ROA acquired its

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interest in the quarry over time and at times contracted with independent legal entities to
undertake crushing.
       Tract of Land
       Appellants’ Question 4 asks the following:
       Whether a “pre-existing development” on one tract of land may form a basis for
       an exemption from Act 250 jurisdiction under 10 V.S.A. § 6081(b) and Act 250
       Rule 2(C)(8) for another tract of land, without a consideration of surrounding
       land uses.
       Today, ROA is a dimension stone quarry on a single parcel comprising more than 1,100
acres. The quarry is composed of several historic smaller quarries adjacent to one another.
The several historic quarries were all active prior to June 1, 1970, and many were conveyed to
ROA prior to June 1970. Based upon our findings, crushing took place at several locations
within ROA as early as 1904 and continued through June 1, 1970. The overall nature of the pre-
existing development in this appeal is an expansive dimension stone quarry which includes
intermittent crushing. The nature of this pre-existing development has not changed over time.
       Appellants argue that because the smaller quarries are separated by public roads and
distances of up to several miles they are distinct developments and therefore crushing on one
does not establish crushing on another. See Re: Thomas Howrigan Gravel Extraction, No. 358,
Findings of Fact, Conclusions of Law, and Order, at 14 (Vt. Envtl. Bd. Aug. 30, 1999); Re: Robert
and Barbara Barlow, No. 234, Findings of Fact, Conclusions of Law, and Order, at 8–9 (Vt. Envtl.
Bd. Sept. 20, 1991), aff'd, In re Barlow, 160 Vt. 513 (1993). We are directed to give prior
decisions of the Environmental Board the same weight and consideration as prior decisions of
the Environmental Division. 10 V.S.A. § 8504(m). These Board decisions generally involve
expansion of a gravel extraction operation. This case presents facts distinguishable from a
gravel pit expanding from one extraction area to another area along the same gravel vein, with
one area having been excavated prior to June 1, 1970 and the other afterward.
       It is undisputed that dimension stone quarrying took place at all of ROA’s quarry sites
prior to 1970. We also find that over the last 100 years, various entities have crushed rock on a
regular but intermittent basis at several locations within the ROA parcel. Today, the ROA land is
contiguous. Historically, crushing operations at ROA have moved from one area to another


                                               11
depending on the source material to be crushed. In the early 1900s, crushing took place at the
Boutwell quarry, near the current NEMG site. NEMG’s “moveable/portable” rock crushing
equipment is located near two ROA working quarries. Thus, because crushing is, and always
has been, a part of dimension stone quarrying at the quarries now under contiguous ownership
by ROA, the Environmental Board’s decisions regarding gravel extraction expansion are not
relevant. We therefore view the pre-existing development at ROA as one operation and will
not distinguish between different “tracts” based on intervening public roads.

       Abandoned
       Appellants’ Question 6 asks the following:
       Whether any crushing operations forming the basis for any “pre-existing
       development” have been legally abandoned, precluding an exemption from Act
       250 jurisdiction.
       To qualify for exemption as a pre-existing development, ROA must establish that its
dimension stone quarrying and crushing operations have not been abandoned. Re: U.S.
Quarried Slate Prods., Inc., Nos. 279 and 283, Findings of Fact, Conclusions of Law, and Order
(Reconsidered), at 22 (Vt. Envtl. Bd. Oct. 1, 1993) (concluding that a 20–30 year lapse in use of a
quarry pit constitutes abandonment).         Industry cycles and custom, especially seasonal
operation, can be relevant in determining whether a project has been abandoned. Id. at 23.
       The evidence clearly shows that the pre-existing dimension stone quarry has not been
abandoned.     Furthermore, the evidence shows over 100 years of fairly consistent but
intermittent crushing activity at the ROA quarry.        Crushing rock at various locations is
customary in the industry because the equipment is often portable and the source of material
may change. Intermittent rock crushing is also customary based on waste material levels and
demand for crushed rock. Thus, we conclude that ROA’s pre-existing development, including
crushing, has not been abandoned.
       Substantial Change
       Appellants’ Question 7 asks the following:
       Whether any of the following constitutes a “substantial change” to a “pre-
       existing development,” within the meaning of 10 V.S.A. § 6081(b), Act 250 Rule
       2(A), and Act 250 Rule 2(C)(7):


                                                12
       a. The use of or addition of crushers by Rock of Ages or NEMG to supply
          aggregate to the proposed asphalt plant,
       b. NEMG’s admission in its Act 250 application that “large quantities of
          aggregate” will be generated on site for the proposed asphalt plant,
       c. NEMG’s authorization to crush rock in amounts up to 175,000 tons per year,
          by virtue of an air permit granted by the Agency of Natural Resources on July
          5, 2012, or
       d. Any other activities of Rock of Ages or NEMG or other legal entities, since
          1970.
       A development may be an exempt pre-existing development and may continue
operating without a permit unless there is a substantial change to that pre-existing
development. Vermont RSA Ltd. P’ship, 2007 VT 23, ¶¶ 9–10. Thus, a substantial change to a
pre-existing development requires an Act 250 permit.            Big Rock Gravel, LLC, Act 250
Jurisdictional Opinion, No. 174-8-08 Vtec, slip op. at 7 (Vt. Super. Ct. Envtl. Div. Oct. 19, 2010)
(Wright, J.). A “substantial change” is defined as “any change in a pre-existing development or
subdivision which may result in a significant adverse impact with respect to any of the [ten Act
250] criteria.” Natural Resources Board Act 250 Rules, Rule 2(C)(7), Code of Vt. Rules 16-5-
200:2 (WL) (2009); In re Hale Mountain Fish and Game Club, Inc., 2007 VT 102, ¶ 4, 182 Vt. 606
(recognizing that the former Environmental Board Rule 2(G) which is nearly identical to Rule
2(C)(7) has effectively become part of the Act 250 process).           The Environmental Board
established a two-prong test for determining whether there has been a substantial change, and
the Vermont Supreme Court has “repeatedly upheld” that test. Vermont RSA Ltd. P’ship, 2007
VT 23, ¶ 10.
       Two-Part Test
       Under the two-prong substantial change test, we first determine whether a cognizable
physical change to the pre-existing development will result from the project. Then, if there is a
cognizable physical change, we consider whether the project has the potential for significant
adverse impact under one or more of the 10 Act 250 criteria. Id.

       i.   Congnizable physical change

       Appellants’ Question 8 asks the following:
               Whether any of these activities have created or could create a cognizable
               physical change to any “pre-existing development.”

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        To determine whether a cognizable physical change has occurred, we must examine
whether the quarry is being “operated in essentially the same manner as it was before June 1,
1970.” F.W. Whitcomb Constr. Co., No. 408, Findings of Fact, Conclusions of Law, and Order, at
10 (Vt. Envtl. Bd. Dec. 19, 2002) (internal quotation omitted); Re: John Gross Sand and Gravel,
No. 280 (Supplementary), Findings of Fact, Conclusions of Law, and Order, at 9 (Vt. Envtl. Bd.
July 28, 1994) (expansion of an extraction area in a gravel/sand pit operation was not
cognizable change). As noted above, Appellants have the burden of establishing a substantial
change to the pre-existing development. Vermont RSA Ltd. P’ship, 2007 VT 23, ¶ 10.
        Since the early 1900s, crushing has been a regular but intermittent activity at the
various ROA quarry sites. In the late 1950s, crushing operations supplied crushed granite to
build Interstate 89. This crushed material was transported off-site in 100-ton capacity rail cars.
Testimony and documentary evidence shows that hundreds of rail cars carried crushed material
off-site during this period. Although technologically improved, the crushing equipment remains
essentially the same, with a large primary crusher crushing rock, followed by a smaller crusher
further reducing rock size. Screens are used to separate crushed rock into different sizes.
        From September 1969 to April 1970, Kelly Construction, Inc. contracted with ROA to
remove and crush 40,000 cubic yards of material. This is equivalent to an annual crushing rate
of 60,000 cubic yards. 5 The evidence supports a similar annual crushing rate through the 1980s
and 1990s by Cooley, McCullough, and Pike.
        NEMG crushed 20,285 tons of material in 2010; 155,577 tons in 2011; 89,667 tons in
2012; and 59,279 tons in 2013. The spike in crushing in 2011 was due to Tropical Storm Irene
when a large quantity of road building material was needed to rebuild infrastructure damaged
from the storm. The Vermont Natural Resources Board suspended enforcement of extraction
limits and trucking activities during this period of increased need for materials. NEMG’s
authorization to crush rock in amounts up to 175,000 tons per year, by virtue of an air permit
granted by the Vermont Agency of Natural Resources on July 5, 2012, does not demonstrate an
increase in NEMG’s actual crushing rate. While the air permit limits NEMG’s crushing, it does

5
  Assuming one cubic yard of crushed granite weighs somewhere between 1.5 and 2.5 tons, this annual crushing
rate is similar to the annual crushing rate for the quarry during the 1980s, 1990s, and NEMG’s normal annual
crushing rate.

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not serve as credible evidence that NEMG actually crushes or plans to crush that quantity of
rock.
        Crushing is a small but integral part of the ROA dimension stone quarry. Because the
location of crushing operations has moved around ROA’s 1,100-acre site since the early 1900s,
we conclude that it is reasonable to expect that the location of crushing will vary over time.
        While the Environmental Board and this Court have closely reviewed pre-1970 annual
extraction rates to define the extent to which a gravel extraction operation can continue to
operate and expand, that analysis does not readily apply to this case. Here, as mentioned
above, the pre-existing development is a more than 1,100-acre dimension stone granite quarry
which includes intermittent and portable rock crushing activities.         Thus, so long as the
operation of ROA is essentially the same as it was pre-1970, no Act 250 Permit is required. In
considering crushing activities at ROA, the evidence shows significant crushing prior to 1970.
Through the 1940s, 1950s and 1960, the crushing capacity was 1,000 tons of material crushed
per day with railcar load capacities of approximately 100 tons per car. The evidence further
shows hundreds of railcars transporting crushed rock during this period. After construction of
Interstate 89 was complete in the 1960s, crushing rates decreased. While the parties did not
provide detailed evidence of crushing rates just prior to 1970 to current times, the evidence
does demonstrate that crushing has continued at a similar magnitude prior to and after 1970.
        Appellants have failed to meet their burden of demonstrating that NEMG’s crushing
represents a cognizable physical change to ROA’s pre-existing development. We therefore
conclude that NEMG’s crushing is not a cognizable change to ROA’s pre-existing development.
We do note that on-site use of crushed material, such as a proposed asphalt plant operation, is
not before us in this matter. Such activity is for consideration in the separate, but related,
matter and will be independently reviewed and decided.
        ii. Potential for Significant impact
        Consideration of the second element—the potential for significant impact with respect
to Act 250 criteria—is unnecessary because the pre-existing development has not undergone a
cognizable change. We recognize that Appellants allege that NEMG’s rock crushing creates
various impacts, including noise, particulate matter in the form of stone dust, and truck traffic


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and congestion, and that these impacts cause them to assert the need for an Act 250 permit.
We note that these impacts are, however, within the range of impacts to be expected from the
extraction, movement, and crushing of overburden which is necessarily removed as part of
quarry development. There has been no cognizable change to these pre-existing activities.
Without a finding of a cognizable change, we do not have jurisdiction to review these alleged
impacts.
                                           Conclusion
       For the reasons discussed above, we conclude that the ROA quarry operations, including
intermittent and portable crushing activities, are a pre-existing development within the
meaning of 10 V.S.A. § 6081(b) and Act 250 Rule 2(C)(8); that ROA quarrying and crushing is a
pre-existing development even though it has acquired its interest in land over time and at times
has contracted with independent legal entities to undertake crushing at different locations
within its dimension stone quarry; and that no intervening ownership, if any is in fact present, is
relevant to the determination of the extent of the pre-existing development. We also conclude
that Appellees’ crushing activities have not been abandoned.           Lastly, we conclude that
Appellees’ pre-existing development has not undergone a substantial change.             For these
reasons, Appellees’ do not require an Act 250 permit to crush rock at the NEMG crusher site at
levels customarily associated with ROA’s operation.
       A Judgment Order accompanies this Decision. This completes the current proceedings
before this Court.


Electronically signed on April 28, 2014 at 04:16 PM pursuant to V.R.E.F. 7(d).




_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division




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