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| Can you smell what the Rock is cookin'? |
By Andrew Delaney
This is the third case in this trilogy, and yes, it’s over a year old. Nobody was jumping at writing these cases up. You can read about the first case here, and the second case here. I’ve been told I’ve gotten much wrong in those summaries. Perhaps I have. You get what you pay for here.
In this round, the neighbors (aka Neighbors for Healthy Communities) “appeal the Environmental Division's decision granting North East Materials Group, LLC, (NEMG) an Act 250 permit for operating an asphalt plant.” The neighbors specifically challenge the court’s findings and conclusions under two Act 250 criteria. They claim “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.”
A slight SCOV majority is unpersuaded.
The District Five Environmental Commission issued a permit in 2013, and NEMG constructed a hot-mix asphalt plant on the Rock of Ages quarry tract in Barre. The neighbors and NEMG appealed and cross-appealed respectively to the Environmental Division. Before trial, the parties agreed to a limited Act 250 compliance review.
The Environmental Division had a three-day hearing. It made general findings about the site and operation of the hot-mix asphalt plant. It then made specific findings about the Act 250 criteria challenged by the neighbors. Ultimately, the court affirmed the permit’s issuance but added two conditions addressing unsafe traffic conditions and mitigating undue adverse odors.
Neighbors appeal, arguing that the “new” conditions just repeat existing requirements that NEMG couldn’t meet in the first place. Thus, the permit doesn’t meet Act 250’s criteria.
SCOV begins by clarifying that this isn’t an enforcement action. So we’re just looking at the Act 250 criteria and whether the permit complies. The ultimate question is whether the findings support the conclusion that the conditions “would mitigate the adverse impacts of the plant's traffic and odor, not whether the project failed to comply with a permit condition.”
That seems like a weird framing to me. But I’ll be the first to admit this is not my area of expertise.
SCOV reviews this findings-and-conditions question deferentially, but reviews the court’s legal conclusions de novo. Any conditions imposed must be reasonable in light of the Environmental Division’s findings—this gets an it’s-all-good-unless-clearly-erroneous review. All this is to say that neighbors have a high hurdle in front of them.
SCOV starts with the traffic criterion (it’s in this statute and specifically 10 V.S.A. § 6086(a)(5) for those of you that want to nerd out). The Environmental Division made a number of findings regarding traffic that included part of the planned access being a high-crash location or HCL (meaning five or more accidents over a five-year period). Neighbors submitted a video showing tractor-trailers crossing the centerline in the HCL. But the Environmental Division found that there’s no evidence of any crashes involving trucks in the HCL since 2003.
So, “the Environmental Division held that trucks crossing over the center line posed a danger to other motorists, bicyclists, and pedestrians using the road and, as a result, violated Criterion 5.” Nonetheless, the Environmental Division rejected neighbors’ argument “that adding traffic to an HCL per se exacerbates an already unsafe condition.” In the end, the court imposed two conditions: (1) that trucks associated with the plant need to stay in their lanes at all times; and (2) NEMG has to pay to have the centerline painted each year and make sure its drivers keep it between the lines.
Generally, there must be a finding that a project “[w]ill not cause unreasonable congestion or unsafe conditions with respect to use of the highways,” but the Environmental Division can impose conditions to mitigate an unsafe condition. Here, the majority reasons that that’s what happened. The Environmental Division found there was a potential unsafe condition and imposed conditions to mitigate the potentially unsafe condition. The standard of review is deferential and even substantial evidence—like, say, a video of trucks crossing the centerline—that contradicts the lower court’s conclusions isn’t enough to warrant reversal. “Good enough for government work,” as my dad’s buddy Frank used to say.
Though neighbors argue correctly that not crossing the centerline is required by law and “adds nothing,” the majority notes that centerline crossing could lead to an enforcement action against NEMG. The majority points out that the condition makes NEMG potentially liable for the drivers’ actions whereas before it would’ve just been the drivers subject to the don’t-cross-the-centerline law. Interesting train of thought.
Next, we deal with the adverse odors, which fall under criterion 8 (10 V.S.A. § 6086(a)(8)). The Environmental Division did determine that the plant causes undue adverse odors. Always fun when one leaves windows open or an a/c unit running on a hot day.
Several neighbors testified that these odors are pungent, eye-watering, and throat-stinging. During the summer operating months, the odor permeates their properties, causing neighbors to forgo outdoor recreation. For example, one neighbor testified that he smelled the asphalt odors whenever the plant was operating and that he no longer walks after work because of the odors. This neighbor also testified that he could smell the fumes on days when the plant was not operating, although the odor had dissipated, and speculated that this odor related to the hot-mix asphalt stored on site.So, the “Environmental Division found that several neighbors who testified were hypersensitive to odors.” This is starting to seem a little bizarre to me. The court apparently noted that the smells and days of operation didn’t necessarily line up. And the court noted that although neighbors requested investigations, no enforcement actions had been filed. I usually try to stay neutral in these summaries, but I’m thinking maybe the people who decide these things should spend a week living where the folks affected live. Asphalt smells.
At any rate the Environmental Division did find that “the odors and fumes from the asphalt plant itself may be adverse and undue” and ordered some mitigation as follows:
[NEMG] shall not discharge, cause, suffer, allow, or permit from any source whatsoever such quantities of air contaminants or other material 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. [NEMG] shall not discharge, cause, suffer, allow, or permit any emissions of objectionable odors beyond the property line of the premises.This condition mimicked a condition of NEMG’s air pollution permit. The court also reasoned that NEMG testified that is can and does comply with this provision.
Neighbors say, “Hold the phone.” NEMG doesn’t and can’t comply with this provision. It stinks.
The majority is not persuaded. It concludes “that there was credible evidence sufficient to support the Environmental Division's conclusion that the plant would comply with Criterion 8 as conditioned.” First, the majority notes that if the condition is complied with it will reduce the adverse impacts. Next, the majority reasons that the lower court concluded that NEMG could comply with the condition because NEMG’s expert said NEMG was in compliance. And that’s enough for the majority.
The majority affirms.
Justice Robinson and specially assigned Judge Carlson concur in part and dissent in part. The dissent points out that for two years, NEMG hasn’t mitigated the asphalt smell. So, with no new condition, the adverse aesthetic impact of the stinky asphalt ain’t really mitigated.
The dissent notes: “There is no dispute that the odors from the asphalt plant, emitted while the plant was subject to the same condition the trial court relied on for mitigation, created undue adverse impacts.” So the rubber-stamping exercise here doesn’t do the trick.
The dissent also goes into detail on the length of operation (two years); the permit conditions (same as the lower court “imposed”); and the odors (they’re bad). Given all that, NEMG has to do something different to make it better. The Environmental Court can’t just wave a wand and make a condition that hasn’t worked work by restating it anew.
The dissent takes issue with the majority’s approach for four reasons: (1) the reasoning is circular; (2) the analysis is inconsistent with the trial court’s own findings—just because NEMG said it does and will comply doesn’t mean that’s what’s happening; (3) even though NEMG thinks it was in compliance, there was demonstrated noncompliance, and the adverse impacts were there the past two years; and (4) the supposed condition isn’t a condition at all—it’s a reiteration of a permit condition.
For these reasons, the two dissenters would reverse on the asphalt-smell portion of the case.
I’m with the dissent on this one. I’ve been stuck in the car during paving projects and ended up with a headache. I’ve worked with asphalt and ended up with a headache. I can’t imagine living next to it. And this isn’t a long-established use at all. What do you think? Let us know in the comments.
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