In December 2017, Neighbors for Healthy Communities (Neighbors), with the support of the VLS’s Environmental and Natural Resources Law Clinic (ENRLC), achieved their latest victory in a six-year battle against polluting industry in Graniteville, Vermont. Susan Baird of the District 5 Environmental Commission issued a jurisdictional opinion stating that North East Materials Group (NEMG) must obtain a permit under Act 250 (Vermont’s statewide land use law) for a rock crusher it has been operating at the Rock of Ages quarry.
NEMG operated the crusher for nearly a year without an Act 250 permit, claiming that the crusher was “grandfathered” as part of the preexisting Rock of Ages quarry. A development in existence before the 1970 enactment of Act 250 is exempt from permitting, unless there is a substantial change to that preexisting development. NEMG did not present enough evidence to show that crushing was historically part of the Rock of Ages quarry.
“The introduction in 2017 of a crushing operation at the Smith Quarry is a cognizable change that has the potential to result in neighboring landowners experiencing significant adverse noise, dust, and traffic impacts,” wrote Baird in the opinion. She further found it “inconceivable” that NEMG should be able to “site a crusher at any location on a tract with no requirement to mitigate its impact on adjacent landowners.”
This was not the first rock crusher for which NEMG claimed the grandfathering exemption. NEMG operated another crusher without an Act 250 permit from 2010 to 2016. The crusher ceased operating in August 2016 after the Vermont Supreme Court ruled that the crusher was a substantial change to the Rock of Ages quarry and that NEMG must obtain an Act 250 permit.
In June 2017, the District 5 Environmental Commission denied NEMG’s application for an Act 250 permit for that first crusher. The commission concluded that the noise was “shocking and offensive,” that the crusher emitted “a significant amount of silica” that “could create serious health consequences” for the surrounding community, and that the location, in such close proximity to neighboring residences, was “not suitable” for a crusher.
It was not long after the first crusher shut down in August 2016 that Graniteville residents began hearing another crusher just 3,000 feet away from the first.
“Immediately after the Act 250 permit for the original crusher was denied, crushing operations were started in a different location,” said Graniteville resident Padraic Smith. According to residents, the two crushers create the same impacts—noise, dust, traffic—and for some residents, like Smith, the impacts from the new crusher are “more intense.”
The December jurisdictional opinion came just one month before Neighbors appeared before Judge Thomas Walsh of the Environmental Division in NEMG’s appeal of the Act 250 permit denial for its first crusher. Just prior to trial, NEMG filed a Motion for Reconsideration of the jurisdictional opinion, which District Coordinator Baird denied on February 7, 2018.
In January 2018, ENRLC Staff Attorney Elizabeth Tisher and student clinicians Maggie Galka ’18 and Jack Wadleigh ’18 represented Neighbors in a merits hearing before Judge Walsh on the permit denial for the first crusher. During the four-day trial, Neighbors testified about the impacts they have experienced from the crushing operation. They shared stories of dust coating their properties and entering their homes; constant loud noise, which one resident compared to “bricks in a washing machine”; and a significant increase in truck traffic. They also presented photographs and videos of dust billowing from the crusher and blowing off-site and dust being kicked up in big clouds by the trucks driving up and down Graniteville Road, the highway that passes by many residents’ homes. Neighbors also testified about their experiences living in Graniteville before the crushing operation moved in. They described Graniteville as a peaceful, close-knit community, where the Rock of Ages quarry was barely noticeable.
Clinicians Galka and Wadleigh were integral in getting the Neighbors’ stories before the court. They questioned key witnesses, introduced exhibits, and expertly handled objections from opposing counsel and questions from the judge. The ENRLC team submitted their proposed findings of fact and conclusions of law to the court in early February. They anticipate a decision this spring.