1 

## S TATE OF 

## V ERMONT

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 c ivil citation 13EC00925 against Harrison Concrete (Respondent). The Natural Resour ce 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 vehicl es on the premises outside of permitted hours of operation” between April 30, 2013 and Sept ember 14, 2013.

The Court held a hearing on March 10, 2014 at the E nvironmental 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 Resp ondent violated Condition 10 between April 30 and September 14, 2013 by having employee vehicl es 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” condu cted on the site after 6:00 p.m. on weekdays.

Aaron Brondyke, the NRB’s Permit Compliance Specia list, issued citation 13EC00925. Mr. Brondyke testified that he received neighbors’ complaints regarding the alleged violations. Mr. Brondyke described the complaints as relating t o noise and traffic impacts, including engines running, back-up alarms, metal on metal ban ging, 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. Br ondyke did not speak with a representative of the Respondent as part of his investigation of t he alleged violations. 2 Mr. Brondyke’s issuance of the citation was based upon what he des cribed 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 c oncerned with the NRB pursuing formal enforcement a ctions without staff conducting more complete investigatio ns including a site visit and at least an attempt t o interview a respondent.2

Laura Dattilio lives at 1509 Skunk Hill Road, appr oximately one-quarter of a mile from the entrance to Respondent’s concrete plant. Ms. D attilio’s house and property is less than one-quarter of a mile away from Respondent’s proper ty and operations. Ms. Dattilio testified that during operating hours she can see some site a ctivities. 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. Dattili o 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 hea rd a banging noise from Respondent’s plant after 6:00 p.m. and has observed Respondent’s concr ete 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 approxim ately 10:15 p.m., a big truck arrived at the concrete plant and made lots of noise. She went ou tside and specifically saw that the noise was coming from activities at Harrison Concrete.

James Harrison is the owner of Respondent. Mr. Ha rrison 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 th e drum with the truck’s engine at one-half idle. This creates liquid slurry which is then emp tied from the drum. The plant’s concrete product does not contain stone. Mr. Harrison testi fied that he thinks trucks are washed after 6:00 p.m., however, there was no evidence of such a n 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 des cribed above, and the driver completing a Commercial Driver’s License (CDL) log. Mr. Harriso n testified as to the May 7 10:15 p.m. truck activity described by Ms. Read. Mr. Harrison state d 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 t he subject site and then shipped it off-site the next morning.

Findings of Fact

Based upon the parties’ evidence, we make the follo wing 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 bunke r 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 en ter the site after 6:00 p.m. weekdays and 12:00 noon Saturdays.

6. On June 27, 2013, a cement truck exited the plant a t 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 af ter 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 o f the noise and the activity causing the noise is unknown except for a single event on M ay 7, 2013 which related to an equipment delivery.

Conclusions of Law

The NRB carries the burden of proving the alleged v iolation(s) by a preponderance of the evidence; in other words, for each violation, t he NRB must prove that the violation is more likely to have occurred than not. See 16-3 Vt. Cod e 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 fai ls 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 lik ely than not that Respondent has “operated” the facility outside of the hours of 6:0 0 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 d ecline 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 test imony that the site need not be completely “dormant” outside of the restricted hours of operat ion. Based upon the above findings, we have no evidence of specific on-site activities out side of the permitted facility operation hours during the citation period. Because the noises hea rd 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 as4

cleaning a concrete truck, would constitute a viola tion of Condition 10 if conducted outside of
the restricted hours. 3

The NRB also asserts that employees leaving the sit e and concrete trucks and form trucks returning to the site after the restricted h ours constitute violations. We disagree. In construing Condition 10, we employ “normal statutor y 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 mea ning 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 “mus t be expressed with sufficient clarity to give notice of the limitations on the use of the la nd.” Id. at 482 (quoting In re Farrell & Desautels, Inc., 135 Vt. 614, 617 (1978)).

While the NRB offered into evidence Respondent’s Ac t 250 applications and the two LUPs at issue, there are no District Commission fin dings of fact or conclusions of law in
evidence. 4 Neither the LUPs nor Respondent’s applications di rectly address whether employee vehicles or concrete and form trucks entering or ex iting the site are subject to the restricted hours of facility operations. We conclude that emp loyee vehicles must be allowed to exit the site outside of the permitted hours of facility ope ration. 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 irratio nal results. See Wesco, Inc. v. Sorrell, 2004 VT 102, ¶ 14, 177 Vt. 287 (“[W]e favor interpretati ons of statutes that further fair, rational consequences, and we presume that the Legislature d oes 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) (refusin g 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 c onclude that Condition 10 does not govern employee traffic or concrete and form trucks enteri ng or exiting the site.

3 We note that Respondent represented that it intend s 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 v enue for such interpretive efforts than a limited e nforcement

action.

4 LUP 6F0533-2 was issued pursuant to the Act 250 mi nor permit amendment process, which does not genera te 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