Appeal of LiCausi

• Court: Vermont Superior Court
• Decided: November 1, 2005
• Docket: 91-06-04 Vtec
• Status: Published

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} Appeal of LiCausi, et al. } Docket No. 91-6-04 Vtec (Crushed Rock, Inc. Air Permit) } }

Decision and Order

Appellants1[1] Gale M. Licausi, Andrea McCormack, Wanda Crossman, Eric Jensen,

Lisa Chapman, Kerry Posselt, and Mark Harding appealed from a decision of the State of

Vermont Agency of Natural Resources (ANR) dated May 11, 2004, issuing Air Pollution

Control Permit No. AOP-98-001c to Appellee-Applicant Crushed Rock, Inc. for the

construction and operation of an asphalt hot-mix batch plant in addition to the rock

crushing equipment at Appellee-Applicant=s existing stone and gravel quarry with access

from Vermont Route 133 in Clarendon, Vermont. The present application is the successor

to an air pollution control permit issued in 1998 to John A. Russell Corporation for a

proposed asphalt plant and rock crushing equipment at the quarry, as that permit expired

in August of 2003. The property has also been involved in litigation under the state land

1[1] Three other Appellants: Frank LiCausi, Mark Reardon and Jackie Fenner, withdrew during

the pendency of the appeal. use statute (Act 250) and the local zoning ordinance.

Appellants appeared and represented themselves; Appellee-Applicant Crushed

Rock, Inc. is represented by Edward V. Schwiebert and David L. Cleary, Esq.; and the

Agency of Natural Resources is represented by Conrad W. Smith, Esq. An evidentiary

hearing was held in this matter before Merideth Wright, Environmental Judge, at the same

time as a hearing in the remanded proceedings on a related zoning case: Environmental

Court Docket No. 203-11-98. The parties were given the opportunity to submit written

memoranda and requests for findings. Upon consideration of the evidence and of the

written memoranda and requests for findings filed by the parties, the Court finds and

concludes as follows.

10 V.S.A. ' 562(d) provides that persons aggrieved by the issuance of an air

pollution control Apermit pursuant to this chapter@ may appeal that decision to this Court.

The Court is directed to hold a Ade novo hearing and [to] issue an order affirming,

revising or reversing the decision of the secretary.@ Accordingly, the application before the

Court must be reviewed to determine whether it meets the requirements of Vermont=s Air

Pollution Control statute (10 V.S.A. Chapter 23) and Air Pollution Control Regulations

(Regulations) to qualify for a permit.

Appellee-Applicant argues that Appellants are not persons aggrieved under the

statute, and lack standing to maintain this appeal. When this appeal was filed in June of 2004, the statutory standing requirements for an air permit appeal only required the

appellants to be Aaggrieved@ by the issuance of the permit. The statute did not then

require any particularized showing as is now required by 10 V.S.A. '8501(7). All the

Appellants live close enough to the site to be potentially affected by it and close enough to

maintain their standing for the purposes of this proceeding.

Appellee-Applicant proposes to install an asphalt hot-mix batch plant at its quarry,

to continue its rock quarrying and rock crushing operations, and to install a stationary

internal combustion diesel engine generator to power the asphalt plant and the rock

crushing equipment. The proposed asphalt hot-mix plant mixes crushed rock produced at

the quarry with heated liquid asphalt. The mixture is loaded into trucks to be transported

away from the site. Appellee-Applicant proposes to install fencing at the site and to install

a 400-foot-long berm and plant three staggered rows of conifer trees, 10 to 12 feet in

height at planting, to screen the view of the site from the valley.

A batch plant is designed to mix the rocks with the liquid asphalt in an enclosed

part of the system; it therefore produces a lower rate of emissions than a former style of

plant which exposed the mixture to contact with the heat source. Descriptions of the

facility and the specific makes and models of the proposed asphalt hot-mix plant

equipment, storage tanks, diesel generator and fuel tanks are found in State=s Exhibit B,

the current permit as issued by the ANR (the 2004 ANR Permit), and State=s Exhibit C, the technical support document for that permit prepared as part of Appellee-Applicant=s

application. These documents detail the changes since the 1998 ANR Permit was issued,

but also incorporate by reference those portions of Appellee-Applicant=s Exhibit AR-2, the

application for the 1998 permit, which contain descriptions of the proposal and analyses

that have not changed between the two applications.

The present application proposes the same equipment and operating parameters as

the 1998 permit, except that Appellee-Applicant proposes to use a diesel generator that

meets current and more stringent standards than were required in the 1998 permit, and

proposes a lower limit of asphalt hot-mix production. Appellee-Applicant proposes to limit

its fuel oil use for the proposed asphalt hot-mix plant and oil tank heaters to 500,000

gallons per year and its asphalt hot-mix production to 245,000 tons per year. Appellee-

Applicant proposes to limit the fuel oil use of the diesel generator to 55,700 gallons per

year. The facility is limited to a maximum of 85 truck trips (170 one-way trips or turning

movements) per day. An annual production figure for crushed stone of 432,300 tons was

used in the air permit calculations, although the amount shipped from the site may be

further limited by the truck-trip limitation. The present application would not affect the

number of truck trips or amount of material removed from the site in a year.

Appellee-Applicant proposes to accept and comply with the conditions imposed in

the air permit as issued by the ANR (State=s Exhibit B), which itself incorporates the application materials and sets operational and emission limitations. There was some

discrepancy in Appellee-Applicant=s evidence regarding the proposed hours of operation

and the proposed operating season; however, as Appellee-Applicant did not cross-appeal

and as Appellee-Applicant proposes the terms of the permit as issued, we will use the

proposed hours and operating season found in that permit and application materials, but

will note the discrepancies in footnotes for the parties= information.

Appellee-Applicant proposes to operate the proposed asphalt hot-mix plant and

diesel generator from 6:30 a.m. to 5:30 p.m.2[2] on weekdays and from 9:30 a.m. to noon

on Saturdays, for six months of the year from May 1 through November 1.3[3] Appellee-

Applicant operates the rock crushing machinery on a more limited basis: for six hours a

day4[4] on weekdays, also from May 1 through November 1.

As issued by the ANR (Exhibit B), the permit=s operation limitations restrict the

proposed asphalt hot-mix plant fuel to 0.3% sulfur by weight, and restrict the diesel

generator fuel to 0.5% sulfur by weight, unless Appellee-Applicant obtains prior written

2[2] If Appellee-Applicants now propose to limit the hours of the asphalt hot-mix plant to 7:00

a.m. to 5:00 p.m., those restrictions are not found in any of the application materials.

3[3] The Act 250 permit allows operation through November 30.

4[4] As stated in the AProposed Operating Limits@ section C.4 on page 6 of Exhibit AR-2.

That section does not specify during which six hour period it operates; resolution of that issue is

not material to the air permit appeal. approval from the ANR for a different fuel composition. These limitations will result in

lower emissions of sulfur-containing compounds. Appellee-Applicant proposes not to use

cutback asphalts or emulsified asphalts containing greater than 5% by weight of volatile

organic compounds (VOCs), so that the project is not subject to '5-253.15 of the

Regulations and so that odors generated by the emission of VOCs would be reduced.

The permit conditions limit the plant=s emissions to specified levels. To achieve

these levels, Appellee-Applicant proposes to equip the proposed asphalt hot-mix plant with

a cyclone system to remove large particulate matter, from which emissions will go through

a fabric filter system (baghouse) to remove almost all of the remaining particulate. The

remaining emissions are proposed to be vented through a 65.5 foot stack and to be

ejected at velocity of 55 feet per second to avoid downwash and to disperse the

emissions. Emissions from the plant are required to be tested within the first half-year of

operation for conformance of the systems to the required standards. In addition, permit

conditions restrict the production of visible emissions, objectionable odors, and the

causation of nuisance or other public welfare effects.5[5] All of the permit conditions are

5[5] We note that permit condition 23, and the regulations on which it is based, relating to

nuisance and odor, refers to effects experienced by Aany considerable number of people or the

public.@ Nothing in that condition addresses private nuisance claims not encompassed in that

definition, but nor does it prohibit any individuals from asserting such claims in an appropriate civil

action. enforceable by the ANR.

To avoid the production of odors off-site, Appellee-Applicant proposes to use a

citrus-based, rather than a petroleum-based, release agent to coat the truck beds (to

facilitate the later removal of the asphalt product from the trucks at the delivery location).

In addition, the asphalt tank vents are designed to be small, to minimize fugitive emission

of odiferous compounds. To minimize fugitive dust emissions, the on-site haul roads and

storage areas are required to be sprayed with water as needed, and all conveyor transfer

points will either be covered or also sprayed with water. Further, all trucks leaving the

facility will be covered to minimize fugitive dust and odor emissions.

Vermont=s air quality statute and regulations do not regulate noise.

The closest sensitive area to be used for evaluation of air quality effects is Herrick

Mountain in the town of Ira, Vermont, 5.5 kilometers to the west of the proposed asphalt

hot-mix plant. The emissions from the proposed plant will not affect the air quality in that

location.

The proposed asphalt hot-mix plant with diesel generator requires an air pollution

control operating and construction permit under Air Pollution Control Regulations '5-401

and 10 V.S.A. Chapter 23, as it is a listed source category and is expected to emit more

than ten tons of pollutants per year of all types of emissions combined. An Air Quality Impact Evaluation was performed for the 1998 permit application and

was presented with minor revisions for the present application. For a source that is not

yet built, such as this one, the regulations require that the applicant first determine the

Aestimated allowable emissions@ by applying the factors listed in the regulations for the

types of proposed use. See State=s Exhibit B, Table on page 4. For this project, the

total of the estimated allowable emissions of criteria air contaminants has the potential to

exceed 10 tons per year, and therefore needed more refined modeling. As no estimated

emission of any single contaminant is predicted to exceed 50 tons per year, however, it is

classified as a non-major stationary source, and therefore is not subject to '5-502 of the

Regulations. It also does not trigger the threshold for federal regulation. For the listed

hazardous air contaminants or pollutants, the estimated allowable emission of each one is

less than 10 tons per year, and the total of the estimated allowable emissions for all

hazardous air pollutants taken together is less than 25 tons per year. These numbers are

used to determine what level of analysis is required in the permitting process.

Appellee-Applicant was required to perform computer modeling to predict whether

the operation of the plant would be predicted to cause or contribute to violations of

National Ambient Air Quality Standards (NAAQS) or to exceed the Prevention of

Significant Deterioration (PSD) increment for the specified pollutant. That is, a proposed

source, taken together with the existing background air pollution in an area, must not exceed the NAAQS, but if the air is already cleaner than those standards, as it is in the

Rutland area, the proposed source is not free to cause deterioration down to the NAAQS

limits. Rather, the source is limited to the PSD increment for that pollutant. After

screening for particulate matter (PM10), sulphur dioxide (SO2), nitrogen oxides (NOx) and

carbon monoxide (CO), Appellant-Applicant ran the required refined modeling for

particulate matter, sulphur dioxide and nitrogen oxides.

The computer modeling was performed using the topographical data for the actual

project area, taken from the United States Geological Survey mapping data. The

meteorological data used for the model was taken from the official weather stations in

Burlington, Vermont (for the lower air), and in Albany, New York (for the upper air, which

is quite stable over the whole region). The use of data from these weather stations is

consistent with the guidelines (State=s Exhibit D, '7.2) for performing this analysis. The

model is run assuming emissions at night as well as during the work day, and assuming

that temperature inversions occur 25% of the time, which are both conservative modeling

assumptions.

Appellants presented evidence that the Clarendon Valley in which the facility is

located is relatively narrow and steep and that clouds form in the valley and remain well

into the early afternoon, spreading out throughout the bottom of the valley. Due to the

possibility that the localized weather behaves differently from that used for the modeling, we will consider requiring Appellee-Applicant to collect the local equivalent surface

meteorological data for the first May 1 through November 1 period of operation. This data

may be necessary to determine whether the Burlington data is Arepresentative@ for this

valley, as contemplated by Exhibit D, '7.2's use of the term Arepresentative weather

station or on-site data collection.@

The modeling was conducted following the required guidelines and showed that the

operation of the facility will not result in the violation of any air standard. Additional

modeling was done to include the contribution of nearby unrelated sources, with the same

result. Based on the analysis, if the project is constructed and operated as proposed, in

accordance with all the conditions imposed in the ANR 2004 permit, it will not cause or

contribute to violation of any National Ambient Air Quality Standard, will comply with the

Secondary Ambient Air Pollution Standards including the restriction of objectionable odors

and other fugitive emissions emanating from the site, and will not cause a significant

deterioration of the air quality in the vicinity.

No objectionable odors are likely to be generated off-site from the operation of the

proposed asphalt hot-mix plant. Appellee-Applicant performed additional modeling of the

emissions of the major odiferous compounds potentially to be generated by the proposed

asphalt hot-mix plant, taking into account odors from the diesel generator, the proposed

asphalt hot-mix plant stack, the tank heater, and from idling trucks and the dropping of asphalt product into the trucks. The modeling results showed that the odor detection

threshold for these compounds was not exceeded off-site under a variety of weather

conditions. Condition 23 prohibits the discharge of objectionable odors off-site.

The proposed asphalt hot-mix plant will emit water vapor from its stack. During

cold days or suitable conditions that vapor could condense, creating a visible plume of

water vapor not of concern as a contaminant. On the other hand, emissions of visible air

contaminants are restricted by Condition 18.

With regard to potential emissions of hazardous air contaminants, under '5-261 of

the Regulations, if the emission rate of any of the listed hazardous air contaminants

exceeds the action level shown in Appendix C of the Regulations, then the source is

required to achieve the so-called Most Stringent Emission Rate (MSER) for that

contaminant.

The fuel-burning equipment associated with the proposed asphalt hot-mix plant

consists of a tank heater and a rotary dryer, as well as the diesel generator. This

equipment will burn virgin fuel. Under '5-261(1)(b)(ii), the combustion of virgin fuel is

exempt from analysis in calculating the emission rates of Hazardous Air Contaminants

expected to be produced by the proposed asphalt hot-mix plant. Nevertheless the

emission of formaldehyde was calculated, and will be more than two orders of magnitude

below any action level at the nearest residence to the plant. See Appendix C of the Regulations. The analysis of the regulated hazardous air contaminants shows that no

such contaminant will reach any associated action level in any eight-hour6[6] period of

operation, if the proposed asphalt hot-mix plant is operated in accordance with the ANR

permit conditions. The Secretary of the ANR has authority to enforce the conditions and

limitations of any ANR permit, and to require additional monitoring7[7] or testing of any

contaminant of concern.

Accordingly, Appellee-Applicant has met all the required criteria for issuance of an

Air Pollution Permit to Construct and Operate,8[8] on the terms as issued by the ANR in its

2004 permit, with the additional condition as required below.

6[6] To the extent that Appellee-Applicant=s Technical Support Document (State=s Exhibit C)

also presents annualized numbers, they are of limited use in determining the actual level of

emissions experienced in the area, as the facility will not be operating for half the year.

7[7] In response to the concerns of the residents, we recommend but do not require the ANR

to develop a monitoring plan for this facility that includes some monitoring for VOCs at or near

neighboring residences during each operating season, rather than only when required by air

pollution officials due to complaints or inspections.

8[8] This air permit application was analyzed on the basis of the hours of operation proposed;

other permit programs may further restrict the hours of operations, but may not expand them

without an amendment to this permit.. In addition to the merits of this appeal, Appellee-Applicant moved for sanctions.

Appellee-Applicant filed certain discovery requests and requests to admit that either were

objected to or were not responded to, or were admitted at the hearing. Appellee-Applicant

now seeks sanctions in the form of its costs of proving these ultimately uncontested facts.

If there had been time prior to the hearing for the Court to clearly lay out in a scheduling

order the time frames for responding to the requests to admit, and the possible

consequences of a failure to respond to the requests, and to rule on any opposition to the

requested discovery, the Court would have considered imposing such costs, as

unrepresented litigants are subject to the same rules of procedure as are represented

litigants. However, under the circumstances of this appeal, Appellee-Applicant=s motion for

sanctions is DENIED, with each party to bear its own costs.

Based on the foregoing, it is hereby ORDERED and ADJUDGED that Air Pollution

Control Permit No. AOP-98-001c is hereby affirmed, except that it is revised to add the

following condition which is hereby imposed:

Appellee-Applicant shall collect the local surface meteorological data for the

same parameters as used from the Burlington data, during the first May 1 through

November 1 period of operation, to be used to determine whether the Burlington

data is Arepresentative@ for this valley or whether any conditions should be adjusted to conform to the local conditions.

Dated at Berlin, Vermont, this 1st day of November, 2005.

______________________________________ Merideth Wright Environmental Judge

------=extP