ENRLC, Neighbors See Win in Graniteville Pollution Case

SOUTH ROYALTON, Vt., Dec. 18, 2017

This month Neighbors for Healthy Communities (Neighbors), with the support of the Environmental and Natural Resources Law Clinic (ENRLC) at Vermont Law School, achieved their latest victory in a six-year battle against polluting industry in Graniteville, Vt. On Dec. 1, Susan Baird of the District 5 Environmental Commission issued a jurisdictional opinion stating that North East Materials Group (NEMG) must obtain an Act 250 permit for a rock crusher it has been operating at the Rock of Ages quarry.

Graniteville resident Lori Bernier praised the decision. “We have had to shoulder the burden of NEMG’s operations for so many years with little help from our state agencies,” she said. “We hope this means our voices are finally being heard.”

NEMG operated the crusher for nearly a year without an Act 250 permit, claiming that the crusher was “grandfathered” as part of the pre-existing 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 Dec. 1 opinion. Baird 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.”

ENRLC Staff Attorney Elizabeth Tisher said she is pleased with the timing of the jurisdictional opinion, which comes just one month before Neighbors are scheduled to appear before Judge Thomas Walsh of the Environmental Division in NEMG’s appeal of the Act 250 permit denial for its first crusher.

“We now have several decisions from the District Commission up to the Supreme Court, saying that these operations are inconsistent with historical activity at Rock of Ages quarry and that they adversely impact neighboring residents,” said Tisher. “These decisions validate what Neighbors have been experiencing all along, and they underscore that the location of these operations—so close to people’s homes—really does matter.”

Vermont Law School, a private, independent institution, is home to the nation’s largest and deepest environmental law program. VLS offers a juris doctor curriculum that emphasizes public service; four master’s degrees—Master of Environmental Law and Policy, Master of Energy Regulation and Law, Master of Food and Agriculture Law and Policy, and Master of Arts in Restorative Justice; and four post-JD degrees —LLM in American Legal Studies (for foreign-trained lawyers), LLM in Energy Law, LLM in Environmental Law, and LLM in Food and Agriculture Law. The school features innovative experiential programs and is home to the Environmental Law Center, South Royalton Legal Clinic, Environmental and Natural Resources Law Clinic, Energy Clinic, Food and Agriculture Clinic, Center for Applied Human Rights, and Center for Justice Reform. For more information, visit vermontlaw.edu, find us on Facebook, and follow us on Twitter and Instagram.