1 

### 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 Attor ney James P.W. Goss for Cross Appellants North East Materials Group., LLC and Rock of Ages C orporation

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

The motions are DENIED.

Twenty-six citizens, collectively “Neighbors for H ealthy Communities” (Appellants), appeal the District 5 Environmental Commission deci sion approving the application by North East Materials Group, LLC (NEMG) for a hot mix asph alt 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 N o. 143-10-12 Vtec, this Court concluded that NEMG and ROA did not require an Act 250 permit to o perate a rock crusher at the quarry at levels customarily associated with ROA’s quarry ope ration (rock crushing matter). North East Materials Group, LLC Act 250 JO #5-21, No. 143-10-1 2 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 nec essary 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. Spec ifically, 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 Sc heduling Order further provided that within 30 days of the Court’s decision on the merits in th e rock crushing matter, the parties would 

## S TATE OF 

## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION
Vermont Unit Docket No. 35-3-13 Vtec2

provide the Court with unavailable dates for a thre e-day trial (with a fourth day reserved) on the asphalt plant matter in July, August, and Septe mber 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 C oordination 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 Proceedi ngs 2(b), where a project involves multiple proceedings, this Court may advance or coo rdinate proceedings and “make other orders that will promote expeditious and fair proce edings and avoid unnecessary costs or delay.” The Court must also establish a schedule f or 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, w e 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 r equire 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 us ing materials from either the NEMG/ROA crusher or some other source; thus, the final outco me 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 proceed s 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. Th us, 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, App ellants’ 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, p ursuant 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 merit s hearing.3

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 Appell ant Pamela Austin Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Russell Austin Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Julie Barre Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Suzanne Bennett Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Jane Berard Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Lori Bernier Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Marc Bernier Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Charles Brown Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Melyssa Danilowicz Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Michael Danilowicz Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Cathy DeGreenia Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Forrest DeGreenia Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Earl Everhart Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Cynthia Fitzgerald Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Kaley Grenier Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Kirt Johnson Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Victoria Johnson Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Steve Martin Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Frederick McGrath Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Gustave Osterberg Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Rock Pariseau Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Dana Robinson Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Ricky Safford Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Padraic Smith Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Suzanne Smith Douglas Avery Ruley (ERN 6694), Attorney for Appell ant Denise Viens-Kirkpatrik Elizabeth Lord (ERN 4256), Attorney for Interested Person Agency of Natural Resources Gregory J. Boulbol (ERN 1712), Attorney for Interes ted Person Natural Resources Board James P.W. Goss (ERN 1997), Attorney for Cross Appe llant North East Materials Grp.LLC Interested Person Barre Housing Authority Co-Counsel for party 31 Alan P. Biederman