O'Neil Sand & Gravel Act 250 Amendment Application

STATE OF VERMONT

ENVIRONMENTAL COURT

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In re O’Neil Sand & Gravel }
Act 250 Amendment Application } Docket No. 48-2-07 Vtec
(Appeal of O’Neil Sand & Gravel, LLC) }
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Decision and Order on Motion to Reconsider or to Alter

Appellant-Applicant O’Neil Sand & Gravel, LLC (Applicant) appealed from a

decision of the District 2 Environmental Commission denying its application to amend

an Act 250 permit for an aggregate extraction project located on Applicant’s 139-acre

property in the Town of Chester.

Appellant-Applicant is represented by Lawrence G. Slason, Esq. Cross-

Appellants Janet Colbert, Melanie McGuirk, Helen McGuirk, Alice Forlie, Hans Forlie,

Heather Chase, Bruce Chase, Jonathan Otto, Carrol Otto, Rachel Root, Valerie Kratky,

and John Kratky (Neighbors) are represented by David L. Grayck, Esq. Intervenor

Green Mountain Union High School (GMUHS) is represented by Geoffrey H. Hand,

Esq. The Town is represented by James F. Carroll, Esq. Interested Party Paul B. Dexter,

Esq., has appeared and represents himself.

Act 250 Permit #2S0214, which was issued in 1974, applied to a 232-acre parcel of

property owned by Applicant’s predecessors-in-interest; Applicant purchased 139 acres

of that larger parcel. In 2001, Applicant obtained an Act 250 permit amendment, Act

250 Permit #2S0214-6 (the 2001 Act 250 Permit), which authorized an extraction project

on an eighteen-acre portion of Applicant’s 139-acre property, adjacent to the Green

Mountain Union High School property. The application before the Court in the present

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case seeks to further amend the 2001 Act 250 Permit to allow an additional extraction

project on an fifteen-acre portion of Applicant’s property, also adjacent to the Green

Mountain Union High School property, and adjacent to the eighteen-acre site.

On September 11, 2009, the Court issued a decision and order addressing the

parties’ cross-motions for summary judgment (the Summary Judgment Decision). In re

O’Neil Sand & Gravel Act 250 Amendment Application, No. 48-2-07 (Vt. Envtl. Ct. Sept.

11, 2009) (Wright, J.). The Summary Judgment Decision interpreted several of the forty-

six conditions of the 2001 Act 250 Permit in connection with the new project proposal.

In the Summary Judgment Decision, in regard to Condition 12 of the 2001 Act 250

Permit, the Court determined that Condition 12 applied to the entire 139-acre parcel,

therefore requiring either that Condition 12 be amended to allow for the proposed

operation or that the proposed operation fully comply with that condition as initially

imposed. Id. at 6. The Court then analyzed Condition 12 under Act 250 Rule 34(e),

which governs whether a permit condition may be amended, and determined that

Condition 12 was barred from amendment. Id. at 15.

The parties’ cross-motions for summary judgment also addressed whether the

proposed project would be able to comply with Condition 12 of the 2001 Act 250 Permit.

However, the Court did not proceed to rule on the permit on summary judgment,

ruling instead that material facts were in dispute as to whether the proposed operation

would be able to operate within the requirements of Condition 12, and that material

facts were in dispute as to whether Condition 12 applies to noise produced by blasting

activities at the proposed project. Id. at 6, 15.1

On September 24, 2009, GMUHS moved for reconsideration of or to alter the

Summary Judgment Decision “on the narrow issue of whether there is a dispute of

material fact concerning the Project’s ability to comply with Condition 12.” GMUHS

1The Summary Judgment Decision also addressed several other conditions imposed in
the 2001 Act 250 permit, which are not at issue in the present motion.
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Motion, at 1.2 In its motion, GMUHS requests the Court to reconsider its conclusion

that material facts are disputed as to whether the proposed operation can satisfy

Condition 12. GMUHS requests the Court instead to enter summary judgment in its

favor, arguing that the undisputed evidence demonstrates that the proposed project

cannot satisfy Condition 12, regardless of whether the condition applies to the blasting

aspect of the proposed operation. GMUHS therefore requests the Court to deny

Appellant’s pending Act 250 amendment application, as the Court already determined

in the Summary Judgment Decision that Condition 12 is barred from amendment, and

the proposed project cannot meet the requirements of Condition 12 absent such an

amendment.

Standards Applicable to a Motion to Reconsider or to Amend a Judgment

Vermont Rule of Civil Procedure 59(e), which is substantially identical to Federal

Rule of Civil Procedure 59(e), “gives the court broad power to alter or amend a

judgment on motion within ten days after entry thereof.” Drumheller v. Drumheller,

2009 VT 23, ¶ 28 (citing V.R.C.P. 59, Reporter's Notes). Rule 59(e) is a codification of the

trial court's “inherent power to open and correct, modify, or vacate its judgments.” Id.

(citing West v. West, 131 Vt. 621, 623 (1973)). Although there is no specific

authorization in the civil rules or in the rules for environmental court proceedings for a

motion to “reconsider” a decision, such motions are treated as motions to amend or

alter a decision under Rule 59(e). Appeal of Berezniak, No. 171-9-03 Vtec, slip op. at 3

(Vt. Envtl. Ct. Apr. 6, 2007) (Wright, J.); see also Sisters & Brothers Inv. Group. v. Vt.

Nat. Bank, 172 Vt. 539, 541 (2001) (stating that a motion to reconsider is “for all intents

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At a telephone conference on October 5, 2009, at which the Town did not participate,
Attorney Grayck, on behalf of the Neighbors, and Attorney Dexter joined in the
GMUHS motion. Applicant was given the opportunity to file a response to the motion,
but declined to do so.
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and purposes, a motion to alter or amend the judgment” under Rule 59(e)).

A Rule 59(e) motion “allows the trial court to revise its initial judgment if

necessary to relieve a party against the unjust operation of the record resulting from the

mistake or inadvertence of the court and not the fault or neglect of a party.” Rubin v.

Sterling Enterprises, Inc., 164 Vt. 582, 588 (1996) (citing In re Kostenblatt, 161 Vt. 292,

302 (1994)). More specifically, the limited functions of a motion for reconsideration are

“to correct manifest errors of law or fact on which the decision was based, to allow the

moving party to present newly discovered or previously unavailable evidence, to

prevent manifest injustice, or to respond to an intervening change in the controlling

law.” In re Vanishing Brook Subdivision, No. 223-10-07 Vtec, slip op. at 4 (Vt. Envtl. Ct.

July 10, 2008) (Wright, J.) (quoting 11 Wright, Miller, & Kane, Federal Practice and

Procedure: Civil § 2810.0 (2d ed. 1995)); see also Appeal of Van Nostrand, Nos. 209-11-

04 & 101-5-05 Vtec, slip op. at 4 (Vt. Envtl. Ct. Dec. 11, 2006) (Durkin, J.).

On the other hand, Rule 59(e) should not be used to “relitigate old matters” or

“raise arguments or present evidence that could have been raised prior to entry of the

judgment.” Appeal of Van Nostrand, Nos. 209-11-04 Vtec & 101-5-05 Vtec, slip op. at 4.

Disagreement between the moving parties, or disagreement with the court’s decision, is

not grounds for reconsideration. In re Boutin PRD Amendment, No. 93-4-06 Vtec, slip

op. at 2 (Vt. Envtl. Ct. May 18, 2007) (Wright, J.). A motion to reconsider is considered

“an ‘extraordinary’ remedy that should be used ‘sparingly’,” In re Appeal of Berezniak,

No. 171-9-03 Vtec, slip op. at 3–4 (citing 11 Wright, Miller, & Kane, Federal Practice and

Procedure: Civil § 2810.1); its disposition “is committed to the court's sound discretion.”

Rubin, 164 Vt. at 588 (citing Kostenblatt, 161 Vt. at 302).

The Court has thoroughly reviewed the evidence supplied on summary

judgment, as well as the parties’ memoranda on summary judgment, and concludes

that, applying the legal conclusions of the Summary Judgment Decision to the

undisputed facts, including those facts not countered by Applicant, summary judgment
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must be entered denying the permit amendment.

Applicability of Condition 12 to GMUHS Trail Network

Condition 12 of Applicant’s 2001 Act 250 Permit states in full:

In order to protect the public investment in Green Mountain Union High
School, noise levels from all aspects of operations occurring on the site
shall be no louder than barely audible at the school buildings and areas
used for outdoor recreation and education.
2001 Act 250 Permit, at 3, ¶ 12. The District Commission’s decision issuing the 2001 Act

250 Permit (the 2001 District Commission Decision) defined the term “barely audible”

to be that “noise which is no louder than the lowest background level noise which

presently occurs when students are in classes.” 2001 District Commission Decision, at

16.

In the Summary Judgment Decision, the Court concluded that the noise

limitation in Condition 12 must be met on the GMUHS trail network, as well as at the

school building and recreation fields, because the Court determined that the trail

network is an area used for outdoor recreation and education. In re O’Neil Sand &

Gravel, No. 48-2-07, slip op. at 14. In making its determination that Condition 12

applied to the trail network, the Court relied on the plain language of Condition 12,

interpreted in the context of the District Commission’s decision granting the permit.

In interpreting Act 250 permit conditions, the Court applies “normal statutory

construction techniques.” Sec’y, Vt. Agency of Natural Res. v. Handy Family Enters.,

163 Vt. 476, 481, 483 (1995). The Court’s goal is “to implement the intent of the

draftspersons,” which it does by “rely[ing] on the plain meaning of the words because

[the Court] presume[s] they show the underlying intent.” Id. (citing Conn. v.

Middlebury Union High Sch., 162 Vt. 498, 501 (1994)); see also In re Williston Inn

Group, 2008 VT 47, ¶ 14, 183 Vt. 621 (The Court’s “overall goal is to discern the intent of

the drafters . . . by reference to the plain meaning of the regulatory language,” when
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possible. (internal citations omitted)). However, the language used by the drafter must

be considered in the context of the permit as a whole. Handy Family Enters., 163 Vt. at

483 (stating that courts “should view the word[s] in the context used in the permits”

(citing Veterans of Foreign Wars v. City of Steamboat Springs, 575 P.2d 835, 839 (Colo.

1978)). The Court must also keep in mind that “permit conditions ‘must be expressed

with sufficient clarity to give notice of the limitations on the use of the land,’” id.

(quoting In re Farrell & Desautels, Inc., 135 Vt. 614, 617 (1978)), and that “any

uncertainty [regarding the condition] must be decided in favor of the property owner.”

Id. (citing In re Vitale, 151 Vt. 580, 584 (1989)).

In its decision granting the 2001 Act 250 Permit, the District Commission

imposed Condition 12 as a result of its analysis, under Act 250 Criterion 9(K) (Public

Investment), see 10 V.S.A. § 6086(a)(9)(K), of the aggregate extraction operation that was

being proposed in 2001. 2001 District Commission Decision, at 15–17. The plain

language of Condition 12 required the “barely audible” noise standard to be met not

only at the school building, but also to be met at areas on the school’s property used for

outdoor recreation and at outdoor areas on the school’s property used for education.

The District Commission did not limit the applicability of Condition 12 to areas on the

school property that were then being used for education or for outdoor recreation in

2001, nor did it limit the applicability of Condition 12 to any specific areas close to the

school building.

In analyzing the public investment by the Town in the school property, the

District Commission emphasized the importance of the entire 162-acre school property,

not only to the educational functions of the school, but also in terms of its availability

for outdoor recreation and education for the public, as well as the students. The District

Commission stated that, “[i]n this case, the Commission must ensure that noise from

the project does not materially interfere with the efficient function of the school and the

use and enjoyment of the school by the students and the public.” District Commission
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Decision, at 16. Its analysis of “the importance of the 162 acre school site for athletic

and outdoor education programs” was based upon the Chester Town Plan’s

characterization that the school’s “162 acre site makes it possible to create a variety of

athletic and outdoor education programs which add measurably to the community’s

attractiveness and desirability as a place to work and live.” Id. at 16.

The District Commission Decision also contemplated the possibility that the

Town or the school would make changes on the 162-acre school property in the future,

which could require Applicant to accommodate those changes to ensure that Condition

12 would nevertheless continue to be met in the future. For example, the District

Commission found that the “forested buffer of trees between the project and the school

is on the school property.” Id. at 10. Based on this finding, the Commission specifically

noted in imposing Condition 12

that the Applicants have not provided a buffer to the Green Mountain
Union High School property and are relying, in part, upon the existing
forested land on the high school’s property . . . for sound reduction. The
Applicants, in representing that the project will be, at worst, “barely
audible” at the high school, must also realize that even if adjoining
landowners [including the school] remove part of that buffer, the project
will still need to meet the representations made with respect to noise.
Id. at 12.

The plain language of Condition 12—in light of the District Commission’s

discussion of the public investment in the school property for outdoor recreation as well

as for education, and to serve the public as well as the high school student population—

shows that the District Commission intended Condition 12 to apply to the whole of the

school’s property, even if changes were made to that property in the future.3

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Indeed, the 2001 District Commission Decision warned Applicant that, in the future,
“[i]f, however, noise is more than ‘barely audible’ and thus has the potential to interfere
with the enjoyment of and functions of the school and its facilities, including outdoor
education and athletic programs, the project will not be in conformance with Criterion
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 Relative Timing of Development of Trail Network on School Property

On summary judgment, Applicant also argued that, even if Condition 12 applies

to the outdoor recreation trails on the school property, it does not apply to the trail

closest to the proposed project site or the to the large glacial boulder near the project

site,4 asserting that that portion of the trail network was not in existence when the

District Commission approved the 2001 Act 250 Permit. As discussed above, the

existence of that portion of the outdoor recreation trails in 2001 is not material to this

appeal, even if it is a disputed fact, because the Court has already ruled that the District

Commission intended Condition 12 to apply to future recreational and educational uses

on the 162-acre school property. In any event, GMUHS and Neighbors came forward

with evidence on summary judgment supporting their position that the disputed

portion of the trail network did exist at the time of the 2001 District Commission

Decision, and Applicant did not respond with any evidence to controvert it, so that

Applicant cannot prevail on summary judgment on that issue.

When parties file cross-motions for summary judgment, as was done in the

present case, each motion is considered in turn, and each party is “entitled to the benefit

of all reasonable doubts and inferences when the opposing party's motion [is] being

judged.” Bixler v. Bullard, 172 Vt. 53, 57 (2001) (citing Toys, Inc. v. F.M. Burlington Co.,

155 Vt. 44, 48 (1990)). Moving parties that do not bear the burden of persuasion at trial

9(K) Public Investments and the permit . . . will be subject to revocation.” 2001 District
Commission Decision, at 16.
4 The large glacial boulder, located “323 feet from the blast zone of the proposed

quarry,” is also referred to as a “glacial erratic,” which is a “piece of rock that deviates
from the size and mineralogical composition of rock native to the area in which it rests.”
Caduto Aff. ¶ 33 (Sept. 24, 2008). The term “erratic” in the name “is based on the errant
location of these boulders,” which are “carried to [their] current location[s] by glacial
ice, often over hundreds of kilometers and, in this case, 14,000 years.” Id. The glacial
boulder, or glacial erratic, on the school property “is used for educational purposes for
both GMUHS students and the public.” Id.
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may satisfy their burden of production on summary judgment by supporting their

motions with credible evidence or by “showing the court that there is an absence of

evidence in the record to support the nonmoving party's case.” Madden v. Omega

Optical, Inc., 165 Vt. 306, 309 (1996) (citing Ross v. Times Mirror, Inc., 164 Vt. 13, 18

(1995)). If the moving party does so, “the burden then shifts to the nonmoving party to

persuade the court that there is a triable issue of fact.” Id. In order for the nonmoving

party to meet this burden, it must “submit[] credible documentary evidence or

affidavits sufficient to rebut the evidence of the moving party.” Endres v. Endres, 185

Vt. 63, 67 (2008) (citing V.R.C.P. 56(e)).

In the present case, GMUHS and Neighbors presented credible evidence that

portions of the trail network near the proposed extraction site existed and were in use at

the time the 2001 Act 250 Permit was issued. See Caduto Aff. ¶ 4 (Mar. 16, 2009)

(refuting the assertion that “sections of the forest trail closest to the proposed extraction

area . . . did not exist when the original project was approved [in 2001] or when RSG

conducted its noise analysis” on the GMUHS property); id. ¶ 6 (“Most of the trails have

been there far longer than [Applicant’s] 2001 gravel pit permit . . . .”); id. ¶ 8 (stating

that the “trail along the perimeter of the high school property . . . was already in place

and was in existence before OSG’s 2001 gravel pit permit . . . .”); Neighbors’ Ex. 1, Site

Map of GMUHS Forest Trails (indicating the preexisting portions of the GMUHS trail

network, including portions located near the proposed extraction site); Forlie Aff. ¶¶ 1–

3 (stating that, as a member of the GMUHS cross-country and field teams in the late

1980s and 1990, he regularly made use of the trail system described as a “fitness loop”

with “fitness stations”).

By contrast, there is an “absence of evidence in the record to support”

Applicant’s assertion that the trails and the glacial boulder either did not exist or were

not used for educational or recreational purposes at the time the 2001 Act 250 Permit

was issued. Madden, 165 Vt. at 309. Applicant did not present “any credible
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documentary evidence or affidavits sufficient to rebut the evidence of the moving

party.” Endres, 185 Vt. at 67. Although Applicant stated that “sections of the forest

trail closest to the proposed extraction site . . . did not exist when the original project

was approved or when RSG conducted its noise analysis,” Applicant’s Consolidated

Response, at 12 (Feb. 2, 2009), Applicant cited to no statement of fact, affidavit, or piece

of documentary evidence before the Court to support this assertion.

Similarly, although Applicant noted that the Town’s Forest Trail Committee and

its trail improvement project were not in existence until after Applicant submitted its

Act 250 amendment application in 2006, see, e.g., Applicant’s Consolidated Response, at

13, Applicant did not link that fact to evidence showing that the disputed section of the

trail network did not exist in 2001. See Mello v. Cohen, 168 Vt. 639, 641 (1998) (“[T]o

defend against a summary judgment motion, a [party] cannot rely on conclusory

allegations or mere conjecture.”); Progressive Ins. Co. v. Wasoka, 2005 VT 76, ¶ 25, 178

Vt. 337 (“[M]ere allegations of counsel unsupported by documentary evidence are not

enough to create a genuine issue of material fact.” (citing Foster & Gridley v. Winner,

169 Vt. 621, 624 (1999) (mem.))). Accordingly, Applicant did not meet its burden of

refuting the evidence submitted by GMUHS and Neighbors that the trail and glacial

boulder existed in educational and/or outdoor recreational use as of the issuance of the

2001 Act 250 Permit.

Proposed Operation’s Compliance with Condition 12

In the Summary Judgment Decision, after determining that the trail system and

other outdoor areas on the school property were protected by Condition 12, and that

Condition 12 could not be amended, the Court determined that material facts remained

in dispute regarding the Project’s ability to comply with that standard. In re O’Neil

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Sand & Gravel, No. 48-2-07, slip op. at 6, 15. 5

The Court’s conclusion that facts remained in dispute was based largely on the

uncertainty embodied in the word “likely” in Applicant’s several statements that

Applicant “acknowledges that it is likely that the operational noise will exceed existing

background level noise at sections of the forest trail closest to the GMUHS boundary

and proposed project.” Applicant’s Consolidated Response, at 3 (emphasis added); see

also Applicant’s Response to GMUHS’s Statement of Additional Undisputed Facts, at

15 (Feb. 2, 2009) (stating that Applicant “[a]dmit[s] it is likely that operational noise will

exceed background noise level at the sections of the trail near the large boulder closest

to the GMUHS boundary and proposed project”). Without an admission that the

proposed operation would actually violate the standard imposed by Condition 12 at the

sections of the forest trail closest to the GMUHS boundary and to the proposed project,

the Court concluded that material facts were in dispute and that a trial would be

necessary.

In its present motion to reconsider, GMUHS points out that, aside from the

phrasing of Applicant’s admissions, GMUHS’ and Neighbors’ motions for summary

judgment had come forward with evidence that the operational noise produced by the

proposed project will not meet the Condition 12 standard at the glacial boulder or at the

trail near the boulder. See, e.g., Tocci Aff. ¶ 15, 17 (Sept. 24, 2008) (“[I]t is our opinion

that quarry equipment and activity would be audible along 80% of the trail system

length,” in particular at the “glacial erratic” location on the trail that is closest to the

proposed operation.); id. ¶ 17 (stating that Condition 12 would be met at the GMUHS

building under most conditions, but that “sound levels at the glacial erratic and parts of

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Applicant had originally stated on summary judgment that it was “prepared to
operate its project within [the] noise limitations” in Condition 12. Applicant’s Motion
for Partial Summary Judgment, at 8 (June 23, 2008). However, this statement rested on
the mistaken premise that the noise limitation of Condition 12 did not apply to the trail
network.
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the GMUHS trail system will significantly exceed the existing measured background

sound levels”). GMUHS further points out that Applicant did not submit any of its

own credible evidence to refute GMUHS’ and Neighbors’ evidence. The evidence

presented by GMUHS and Neighbors, as well as the absence of credible evidence

presented by Applicant, was enough to shift the burden to Applicant to show that there

were material disputed facts as to whether the operational noise of the project will

violate Condition 12 on the trail network. See Madden, 165 Vt. at 309 (stating that if the

moving party meets its burden of production on summary judgment, “the burden then

shifts to the nonmoving party to persuade the court that there is a triable issue of fact”).

Applicant did not do so.

Applicant conceded “that [its] noise consultant did not take background level

measurements on the forest trail,” Applicant’s Response to Neighbors’ Statement of

Undisputed Material Facts, at 37 (Feb. 2, 2009), and “did not analyze project operational

noise on the school’s trail network.” Applicant’s Response to GMUHS’s Statement of

Additional Undisputed Facts, at 16. Therefore, Applicant’s noise study does not serve

as a basis to refute GMUHS’ and Neighbors’ evidence that the operational noise from

the proposed operation will violate Condition 12 on the trail network. Although

Applicant did answer “disputed” to some of GMUHS’ and Neighbors’ statements of

fact regarding the level of noise on the trail network, see, e.g., Applicant’s Response to

GMUHS’s Statement of Additional Undisputed Facts, at 17–18 (responding “disputed”

to paragraphs 53 and 56, among others), Applicant did not refer to any supporting

affidavits or documentary evidence to support its “mere . . . denials.” White v. Quechee

Lakes Landowners’ Ass’n, 170 Vt. 25, 28 (1999).

Accordingly, because Applicant failed to meet its burden of presenting

supporting affidavits or documentary evidence to refute GMUHS’ and Neighbors’

evidence that the proposed operation would violate Condition 12 on the trail network,

there is no triable issue of fact as to whether the operation of the proposed project is
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capable of complying with Condition 12 at the trail network, including at the glacial

boulder. Therefore, summary judgment must be issued in favor of GMUHS and

Neighbors on this issue.

Blasting

Although disputed facts may remain as to whether Condition 12 was intended to

apply to blasting noise at all, or whether or when it was intended to apply to blasting

noise, this issue appears to be moot, due to the Court’s conclusion that the project as

proposed cannot meet Condition 12 during operation.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED

that GMUHS’s motion for reconsideration or to amend the Summary Judgment

Decision is GRANTED, as follows. In addition to the issues concluded in that decision,

summary judgment is also hereby entered that the proposed project’s operational noise,

exclusive of any noise issues related to blasting, cannot meet the noise standard

imposed by Condition 12 of the 2001 Act 250 Permit, and that therefore the application

must be denied, concluding this appeal. GMUHS shall prepare a proposed judgment

order and circulate it prior to the scheduled telephone conference.

A telephone conference has been scheduled (see enclosed notice) to discuss how

or whether the parties wish to proceed on the related municipal appeal, Docket No. 226-

9-06 Vtec, which the parties had agreed should await the decision in this Act 250 appeal.

Done at Berlin, Vermont, this 23rd day of February, 2010.

_________________________________________________
Merideth Wright
Environmental Judge

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