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N.E. Materials Group Amended A250 Permit 

ENTRY REGARDING MOTION

 

Title: Motion for Continued Coordination (Motion 9) 

 Motion to Amend Scheduling Order (Motion 10) 

Filer: Pamela Austin, et al. 

Attorney: Douglas Avery Ruley 

Filed Date: May 28, 2014 

Response in opposition filed on 06/16/2014 by Attorney James P.W. Goss for Cross Appellants 

North East Materials Group., LLC and Rock of Ages Corporation 

Response filed on 06/19/2014 by Attorney Douglas Avery Ruley for Pamela Austin, et al. 

The motions are DENIED. 

 Twenty-six citizens, collectively “Neighbors for Healthy Communities” (Appellants), 

appeal the District 5 Environmental Commission decision approving the application by North 

East Materials Group, LLC (NEMG) for a hot mix asphalt plant at the Rock of Ages Corporation 

(ROA) quarry in the Town of Barre, Vermont (asphalt plant matter). NEMG and ROA crossappeal. In a separate but related matter, Docket No. 143-10-12 Vtec, this Court concluded that 

NEMG and ROA did not require an Act 250 permit to operate a rock crusher at the quarry at 

levels customarily associated with ROA’s quarry operation (rock crushing matter). North East 

Materials Group, LLC Act 250 JO #5-21, No. 143-10-12 Vtec, slip op. at 16 (Vt. Super. Ct. Envtl. 

Div. Apr. 28, 2014) (Walsh, J.). Appellants filed an appeal of the rock crushing matter with the 

Vermont Supreme Court. 

 In a July 2, 2013 entry order, this Court granted Appellants’ motion to coordinate Docket 

Nos. 35-3-13 Vtec and 143-10-12 Vtec “so far as necessary to promote expeditious and fair 

proceedings and to avoid unnecessary costs or delay” pursuant to Vermont Rules for 

Environmental Court Proceedings 2(b) and 2(d). The accompanying Scheduling Order detailed 

our coordinated treatment of the two matters. Specifically, the Scheduling Order provided that 

the Court would take evidence and issue a decision in the rock crushing matter prior to the 

merits hearing in the asphalt plant matter. The Scheduling Order further provided that within 

30 days of the Court’s decision on the merits in the rock crushing matter, the parties would 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket No. 35-3-13 Vtec
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provide the Court with unavailable dates for a three-day trial (with a fourth day reserved) on 

the asphalt plant matter in July, August, and September 2014. 

In the pending motions, Appellants ask the Court to “continue the coordination of these 

cases” and delay the asphalt plant matter until the Supreme Court has decided Appellants’ rock 

crushing appeal. (Appellants’ Mot. for Continued Coordination and to Amend Scheduling Order 

at 1, filed May 28, 2014.) Appellants suggest that doing so would promote efficiency and 

fairness, because “if [Appellants] would prevail in their appeal of the [rock crushing matter], the 

asphalt plant’s Act 250 permit very likely would be remanded to the district commission.” Id. at 

2. We disagree. 

Under Vermont Rule for Environmental Court Proceedings 2(b), where a project involves 

multiple proceedings, this Court may advance or coordinate proceedings and “make other 

orders that will promote expeditious and fair proceedings and avoid unnecessary costs or 

delay.” The Court must also establish a schedule for the proceeding. V.R.E.C.P. 2(d)(3). When 

the Court coordinated and established the schedule for these proceedings, we knew little about 

the rock crusher operations at ROA and whether the rock crusher was a necessary element of 

the asphalt plant proposal. At that early stage, we exercised our discretion in hearing the 

merits of the rock crushing matter first, allowing us to establish whether Act 250 jurisdiction 

attached to the rock crushing activities. 

We have since determined that NEMG and ROA do not require an Act 250 permit for 

crushing rock at levels customarily associated with ROA’s quarry. NEMG and ROA have also 

pointed out that the asphalt plant could operate using materials from either the NEMG/ROA 

crusher or some other source; thus, the final outcome of the rock crushing matter may not be 

dispositive in the asphalt plant matter. Finally, we note that fairness and efficiency require that 

an applicant have some discretion in how it proceeds through the permitting process; neither 

the Court nor permit opponents should prevent this process from moving forward unless 

appropriate to avoid unnecessary cost or delay. Thus, we give weight to NEMG’s and ROA’s 

wish to proceed with the asphalt plant matter while the rock crushing appeal is pending at the 

Supreme Court. 

We therefore decline to continue the asphalt plant matter to an unknown date in the 

distant future, solely on the chance that the rock crushing decision on appeal may have some 

effect on the asphalt plant matter. Therefore, Appellants’ motions for continued coordination 

and to amend the scheduling order in Docket No. 35-3-13 Vtec are DENIED. 

This matter has been set for a status conference, pursuant to the enclosed notice, and 

all parties are to be prepared to address necessary changes to the existing Scheduling Order in 

order to move this proceeding toward a timely merits hearing. 

 
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So ordered. 

Electronically signed on July 02, 2014 at 09:52 AM pursuant to V.R.E.F. 7(d). 

_________________________________________ 

Thomas G. Walsh, Judge 

Superior Court, Environmental Division 

Notifications: 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Pamela Austin 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Russell Austin 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Julie Barre 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Suzanne Bennett 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Jane Berard 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Lori Bernier 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Marc Bernier 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Charles Brown 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Melyssa Danilowicz 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Michael Danilowicz 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Cathy DeGreenia 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Forrest DeGreenia 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Earl Everhart 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Cynthia Fitzgerald 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Kaley Grenier 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Kirt Johnson 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Victoria Johnson 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Steve Martin 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Frederick McGrath 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Gustave Osterberg 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Rock Pariseau 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Dana Robinson 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Ricky Safford 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Padraic Smith 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Suzanne Smith 

Douglas Avery Ruley (ERN 6694), Attorney for Appellant Denise Viens-Kirkpatrik 

Elizabeth Lord (ERN 4256), Attorney for Interested Person Agency of Natural Resources 

Gregory J. Boulbol (ERN 1712), Attorney for Interested Person Natural Resources Board 

James P.W. Goss (ERN 1997), Attorney for Cross Appellant North East Materials Grp.LLC 

Interested Person Barre Housing Authority 

Co-Counsel for party 31 Alan P. Biederman