1 

STATE OF VERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION

Vermont Unit Docket No. 13EC00925

Natural Resource Board Enf., 

 Petitioner 

 v. 

Harrison Concrete, 

 Respondent 

ENTRY ORDER 

Before the Court is the Natural Resources Board’s civil citation 13EC00925 against 

Harrison Concrete (Respondent). The Natural Resource Board (NRB) cited Respondent for de 

minimis violations of Act 250 Land Use Permit (LUP) 6F0533-2, Condition 10, by “operating and 

cleaning mixer trucks and other construction vehicles on the premises outside of permitted 

hours of operation” between April 30, 2013 and September 14, 2013. 

The Court held a hearing on March 10, 2014 at the Environmental Division in Berlin, 

Vermont. As specifically set forth below, the NRB offered witness testimony and exhibits in 

support of the citation. The NRB asserts that Respondent violated Condition 10 between April 

30 and September 14, 2013 by having employee vehicles enter and exit the site after 6:00 p.m. 

on weekdays, concrete trucks and form trucks return to the site after 6:00 p.m. on weekdays 

and 12:00 noon on Saturdays, and “activities” conducted on the site after 6:00 p.m. on 

weekdays. 

 Aaron Brondyke, the NRB’s Permit Compliance Specialist, issued citation 13EC00925. 

Mr. Brondyke testified that he received neighbors’ complaints regarding the alleged violations. 

Mr. Brondyke described the complaints as relating to noise and traffic impacts, including 

engines running, back-up alarms, metal on metal banging, and the opening and closing of the 

electronic entrance gate for the concrete plant.1 Mr. Brondyke has never visited the site or 

personally observed any alleged violations. Mr. Brondyke did not speak with a representative 

of the Respondent as part of his investigation of the alleged violations.2

 Mr. Brondyke’s 

issuance of the citation was based upon what he described as compelling complaints from 

Respondent’s neighbors. On cross-examination, Mr. Brondyke stated that the site does not 

have to be completely “dormant” from 6:00 p.m. to 6:00 a.m. Monday through Friday, and 

12:00 noon Saturday through Monday at 6:00 a.m. 

 

1

 The plant entrance has a motorized gate which is controlled by a key pad.

2

 Even considering NRB’s limited resources, we are concerned with the NRB pursuing formal enforcement actions 

without staff conducting more complete investigations including a site visit and at least an attempt to interview a 

respondent. 
2 

 Laura Dattilio lives at 1509 Skunk Hill Road, approximately one-quarter of a mile from 

the entrance to Respondent’s concrete plant. Ms. Dattilio’s house and property is less than 

one-quarter of a mile away from Respondent’s property and operations. Ms. Dattilio testified 

that during operating hours she can see some site activities. She also testified that she can hear 

noises from Respondent’s property after 6:00 p.m., however, she cannot see any activities and 

does not know the source of the noise. Ms. Dattilio does see Respondent’s concrete and form 

trucks returning to the site after 6:00 p.m. 

 Alba Boutin lives on Skunk Hill Road more than one-quarter of a mile from the entrance 

to Respondent’s concrete plant. Ms. Boutin has heard a banging noise from Respondent’s plant 

after 6:00 p.m. and has observed Respondent’s concrete trucks on nearby roads after 6:00 p.m. 

 Sandy Read lives at 1722 Skunk Hill Road, directly across from Respondent’s concrete 

plant. Ms. Read provided a written log of vehicles leaving and arriving at the site after 6:00 

p.m. on weekdays and after 12:00 noon on Saturdays. Ms. Read’s log describes employee 

vehicles leaving the site after hours and concrete and form trucks returning to the site after 

hours. One entry, dated June 27, 2013, describes a cement truck leaving the plant at 6:39 p.m. 

Ms. Read testified that on May 7, 2013, at approximately 10:15 p.m., a big truck arrived at the 

concrete plant and made lots of noise. She went outside and specifically saw that the noise was 

coming from activities at Harrison Concrete. 

 James Harrison is the owner of Respondent. Mr. Harrison provided an overview of site 

operations. He specifically described the cleaning of concrete trucks by filling a truck’s cement 

drum with about 100 gallons of water and turning the drum with the truck’s engine at one-half 

idle. This creates liquid slurry which is then emptied from the drum. The plant’s concrete 

product does not contain stone. Mr. Harrison testified that he thinks trucks are washed after 

6:00 p.m., however, there was no evidence of such an event during the citation period. Mr. 

Harrison summarized concrete truck activity at the end of a day as including driving off-site to 

be fueled for the next day, on-site cleaning as described above, and the driver completing a 

Commercial Driver’s License (CDL) log. Mr. Harrison testified as to the May 7 10:15 p.m. truck 

activity described by Ms. Read. Mr. Harrison stated that his company had ordered a large 

screen (a piece of equipment used at quarries) from overseas which arrived in Vermont at the 

late hour. Mr. Harrison accepted the delivery at the subject site and then shipped it off-site the 

next morning. 

Findings of Fact 

Based upon the parties’ evidence, we make the following findings of fact: 

1. Respondent’s original Act 250 Land Use Permit (LUP) 6F0533, issued on May 8, 2001, 

authorizes the construction of an 8,400 square foot storage/precast concrete building 

and a 1,200 square foot office building with water and wastewater systems at the 

subject site. 

2. On April 17, 2003, Respondent received LUP 6F0533-2, amending LUP 6F0533 and 

authorizing the construction of a concrete batching plant, equipment storage, water 

storage tanks, sedimentation house, aggregate bunker storage, access drive, and truck 

parking area at the subject site. 
3 

3. Condition 10 of LUP 6F0533-2 states: “Operation of the facility shall be restricted to the 

hours of 6:00 AM to 6:00 PM, Monday thru Friday, 6:00 AM to noon on Saturdays.” 

4. Employee vehicles routinely leave the site after 6:00 p.m. weekdays and 12:00 noon 

Saturdays. 

5. Concrete and form trucks routinely return to and enter the site after 6:00 p.m. 

weekdays and 12:00 noon Saturdays. 

6. On June 27, 2013, a cement truck exited the plant at 6:39 p.m. There is no evidence of 

whether this truck was carrying a load of concrete or, if it was, when it was loaded. 

7. While concrete trucks are likely cleaned on-site after 6:00 p.m. weekdays or 12:00 noon 

Saturdays, there is no evidence of a specific event taking place during the citation 

period. 

8. Neighbors heard noise from the site after 6:00 p.m. on weekdays or 12:00 noon 

Saturdays during the citation period. The source of the noise and the activity causing 

the noise is unknown except for a single event on May 7, 2013 which related to an 

equipment delivery. 

Conclusions of Law 

The NRB carries the burden of proving the alleged violation(s) by a preponderance of 

the evidence; in other words, for each violation, the NRB must prove that the violation is more 

likely to have occurred than not. See 16-3 Vt. Code R. 600:25-9(a) (2013) (allowing a 

respondent to request a hearing pursuant to 10 V.S.A. § 8012); 10 V.S.A. § 8013(a) (establishing 

burden of proof for hearings requested under 10 V.S.A. § 8012); see In re M.L., 2010 VT 5, ¶ 26, 

187 Vt. 291 (noting that “preponderance” means that upon all the evidence the facts asserted 

are more probably true than false). If the NRB fails to meet its burden of proof, then we must 

reverse the citation. 10 V.S.A. § 8012(b)(1). 

 We must therefore determine whether it is more likely than not that Respondent has 

“operated” the facility outside of the hours of 6:00 a.m. to 6:00 p.m. Monday through Friday 

and 6:00 a.m. to 12:00 noon on Saturdays. The NRB suggests that because the neighbors have 

heard noise from the subject site outside of these hours, the Court should infer that the facility 

has operated outside of the restricted hours. We decline to so conclude, because the evidence 

presented does not demonstrate that this inference is more probably true than not. The NRB’s 

Permit Compliance Specialist provided credible testimony that the site need not be completely 

“dormant” outside of the restricted hours of operation. Based upon the above findings, we 

have no evidence of specific on-site activities outside of the permitted facility operation hours 

during the citation period. Because the noises heard after hours may come from activities 

other than “operation of the facility,” such as the one-time after hours delivery of a piece of 

equipment, we must conclude that the NRB has failed to prove a violation by a preponderance 

of the evidence. We decline to provide an opinion as to whether certain activities, such as 
4 

cleaning a concrete truck, would constitute a violation of Condition 10 if conducted outside of 

the restricted hours.3

The NRB also asserts that employees leaving the site and concrete trucks and form 

trucks returning to the site after the restricted hours constitute violations. We disagree. In 

construing Condition 10, we employ “normal statutory construction techniques” and aim to 

“implement the intent of the draftspersons.” Sec’y, Vt. Agency of Natural Res. v. Handy Family 

Enters., 163 Vt. 476, 481 (1995). We will construe words according to their plain and ordinary 

meaning, giving effect to the whole and every part of the permit. Id.; In re Appeal of Trahan, 

2008 VT 90, ¶ 19, 184 Vt. 262. Where the plain meaning is clear, it will be enforced and no 

further interpretation is necessary. Vt. Alliance of Nonprofit Orgs. v. City of Burlington, 2004 VT 

57, ¶ 6, 177 Vt. 47. Where the permit is silent or uncertain as to the regulation of specific 

activities, we interpret its provisions in favor of the landowner. Handy Family Enters., 163 Vt. at 

481–82. To be enforceable, a permit condition “must be expressed with sufficient clarity to 

give notice of the limitations on the use of the land.” Id. at 482 (quoting In re Farrell & 

Desautels, Inc., 135 Vt. 614, 617 (1978)). 

While the NRB offered into evidence Respondent’s Act 250 applications and the two 

LUPs at issue, there are no District Commission findings of fact or conclusions of law in 

evidence.4

 Neither the LUPs nor Respondent’s applications directly address whether employee 

vehicles or concrete and form trucks entering or exiting the site are subject to the restricted 

hours of facility operations. We conclude that employee vehicles must be allowed to exit the 

site outside of the permitted hours of facility operation. Otherwise, Respondent would be 

unable to operate the facility until the end of the permitted operating hours. Reading such a 

prohibition into Condition 10 would lead to irrational results. See Wesco, Inc. v. Sorrell, 2004 

VT 102, ¶ 14, 177 Vt. 287 (“[W]e favor interpretations of statutes that further fair, rational 

consequences, and we presume that the Legislature does not intend an interpretation that 

would lead to absurd or irrational consequences.”) (internal quotation omitted); In re Stowe 

Club Highlands, 164 Vt. 272, 280–81 (1995) (refusing to interpret regulation such that it leads to 

irrational results). 

We also conclude that Condition 10, which restricts operation of the facility, does not 

give notice that the restricted hours also apply to concrete and form truck traffic which may be 

required to transport product completed by closing time or to travel a considerable distance to 

return to the site for nightly storage. Thus, we conclude that Condition 10 does not govern 

employee traffic or concrete and form trucks entering or exiting the site. 

 

 

3

 We note that Respondent represented that it intends to file an amendment application seeking clarity of what 

activities are subject to the restricted hours. We appreciate this effort, as the Court considers the permit 

application and review process a more appropriate venue for such interpretive efforts than a limited enforcement 

action. 

4

 LUP 6F0533-2 was issued pursuant to the Act 250 minor permit amendment process, which does not generate 

findings of fact and conclusion of law. 
5 

As we conclude that the NRB has failed to prove the cited violation(s) by a 

preponderance of the evidence, we VOID and REVERSE the citation. 

This completes the current proceedings before this Court. 

Done at Burlington, Vermont, this 19th day of March, 2014. 

 ____________________________________ 

 Thomas G. Walsh, Environmental Judge