RE: John and Marion Gross d/b/a John Gross Sand and Gravel, Application #5W1198-EB, Findings of Fact, Conclusions of Law, and Order (April 27, 1995) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: John and Marion Gross d/b/a John Gross Sand and Gravel Application #5W1198-EB FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision pertains to an appeal by John and Marion Gross d/b/a John Gross Sand and Gravel (the Applicants) of permit conditions issued with regard to a crusher plant and an access road associated with their gravel pit in the Town of Roxbury. The crusher plant is used to crush gravel excavated from the Roxbury pit and from another gravel pit they own in the Town of Northfield. As is explained below, the Environmental Board among other things revises the conditions to allow operation of the crusher plant for up to 15 days during July and August, prohibit bringing in Northfield gravel only during those two months, and to provide an expiration date of 11 years from the date the permit was issued. I. SUMMARY OF PROCEEDINGS On July 28, 1993, the Board issuing Declaratory Ruling #280, concluding that a permit is required under 10 V.S.A. Chapter 151 (Act 250) for two substantial changes associated with the Applicants' sand and gravel extraction operation off Route 12A in Roxbury (the Operation): (a) on-site use of a crusher and (b) the creation of a new access road and associated destruction of a berm. The Board also proposed to conclude that a permit is required for the whole Operation by reason of a failure of proof regarding the Operation's pre-existing extraction rate, and gave the Applicants an additional opportunity to provide proof regarding such rate. No appeal of Declaratory Ruling #280 was filed. The Applicants took advantage of the opportunity provided by the Board. On July 28, 1994, the Board issued a supplement to Declaratory Ruling #280, concluding among other things that the Operation constitutes a pre-existing development with a maximum historic extraction rate of 36,000 cubic yards in a year, that no substantial change has occurred in the historic extraction rate, and that no such change will occur if the Applicants do not extract more than 36,000 cubic yards in any given year. No appeal of the supplement to Declaratory #280 was filed. In the interim, on October 4, 1993, the Applicants filed an application with the District #5 Commission for a permit for the crusher plant and access road/berm. On March 10, 1994, the District Commission issued Land Use Permit #5W1198, with supporting findings of fact and conclusions, approving the application with conditions. Subsequently, the Applicants and adjoiners William and Cheryl Cecil filed motions to alter pursuant to Environmental Board Rule (EBR) 31(A), which the District Commission ruled were timely. On May 4, 1994, the District Commission issued a revised Land Use Permit #5W1198-EB, with an attached memorandum of decision concerning the motions to alter. On June 2, 1994, the Applicants filed an appeal with the Board. On June 27, Board Chair Arthur Gibb convened a prehearing conference in Montpelier. On June 29, the Chair issued a prehearing conference report and order which is incorporated by reference. In early August 1994, parties filed prefiled testimony and lists of witnesses and exhibits. On August 17, the Applicant filed evidentiary objections. On August 31, 1994, the Board convened a hearing in the Town of Roxbury with the following parties participating: The Applicants by Stephen Reynes, Esq. Town of Roxbury Board of Selectmen and Planning Commission by Justine Robinson Robert and Henrietta Swann (adjoining landowners) William and Cheryl Cecil (adjoining landowners) Rev. John and Mary Ann Evans (adjoining landowners) by Rev. Evans Peter Evans and Debra Maloney-Evans (adjoining landowners) by Peter Evans Marian Baker (adjoining landowner) Patricia Swann (adjoining landowner) A site visit scheduled for that day was not completed because the crusher broke down. After hearing testimony, the Board recessed pending reconvening of the site visit, filing of proposed findings of fact and conclusions of law, deliberation, and decision. On September 28, 1994, the Board reconvened the site visit with all of the same parties participating. On October 19, proposed findings of fact and conclusions of law were filed by the following parties: the Applicants, Robert and Henrietta Swann, the Cecils, and Patricia Swann and Marian Baker. The Board deliberated on December 9, 1994 and April 26, 1995. On April 26, following a review of the evidence and arguments presented in the case, the Board declared the record complete and adjourned the hearing. This matter is now ready for decision. To the extent any proposed findings of fact and conclusions of law are included below, they are granted; otherwise, they are denied. II. ISSUES The Applicants' appeal contends that the District Commission erred with respect to three conditions of the permit: Condition #8, prohibiting use of the crusher during July and August; Condition #13, prohibiting the crushing of gravel taken from the Applicant's Northfield pit; and #14, setting an expiration date of March 10, 1995. The parties all agree that the appeal of Conditions #8 and #13 raises issues with respect to 10 V.S.A. § 6086(a)(8) (aesthetics and scenic beauty) and (9)(E) (extraction of earth resources). With respect to Conditions #8 and #13, the issues are whether these permit conditions are justified by the impacts of the project under Criteria 8 (aesthetics) and 9(E) (extraction of earth resources). As stated in the prehearing conference report and order issued on June 29, 1994, in evaluating these issues, the Board will consider both noise and dust impacts from the crusher operation. III. FINDINGS OF FACT 1. John and Marion Gross, d/b/a John Gross Sand and Gravel (the Applicants), own and operate a sand and gravel extraction operation (the Operation) located on a 112-acre tract of land located off Route 12A in the Town of Roxbury (the Operation tract). The northern border of the Operation tract is the Roxbury-Northfield town line. 2. On July 28, 1993, the Board issued Declaratory Ruling #280 (the July 1993 Decision). In that decision, the Board reached the following conclusions: a. The Operation constitutes development that is subject to Act 250 unless the Applicants meet their burden to prove that the Operation is exempt as a pre-existing development. b. The Board proposed to conclude that the Applicants have not met their burden to prove that the Operation is pre-existing because it has not proved an annual extraction rate prior to June 1, 1970. c. The Board also proposed to conclude that the Applicants have not met their burden to produce sufficient information to enable the Board to conclude that a substantial change in the extraction rate has not occurred. d. Further, even if the Operation were a pre-existing development, two substantial changes with respect to the Operation have occurred: (1) the addition and use of a crusher and (2) the creation of a new access road and associated destruction of a berm. e. The Board proposed to conclude that an Act 250 permit is required for the entire Operation and must be obtained prior to any continuance of the Operation. f. In addition, an Act 250 permit was required prior to the addition and use of a crusher and the creation of a new access road and associated destruction of a berm, and remains required prior to any further use of the crusher and the road, and prior to associated activities as set forth in the order of July 28, 1993. Such associated activities included the bringing onto the Operation site of earth resources from the Applicants' Northfield pit for crushing. 3. The Board's conclusions were rendered as proposed conclusions with respect to only the following: b, failure to prove exemption as a pre- existing development; c, failure to produce sufficient information to evaluate the question of substantial change in the extraction rate; and e, applicability of Act 250 to the entire Operation. (The letters b, c, and e correspond to those used immediately above.) These proposed conclusions were to become final by a specified date unless the Petitioner submitted credible information demonstrating the Operation's pre-1970 and post-1970 extraction rates. The remainder of the Board's conclusions were final. 4. The Applicants took advantage of the opportunity provided to them by the July 1993 Decision. Further proceedings ensued. 5. On July 28, 1994, the Board issued a supplement to Declaratory Ruling #280 (the July 1994 Supplement), concluding that: a. the Operation constitutes a pre-existing development with a maximum historic extraction rate of 36,000 cubic yards in a year; b. the pre-existing development included the use of tandem trucks with a fourteen cubic-yard capacity; c. that no substantial change has occurred in the historic extraction rate; and d. no such change will occur if the Applicants do not extract more than 36,000 cubic yards in any given year. 6. The July 1994 Supplement amended paragraph six of the order contained in the July 1993 Decision. As amended, such paragraph provides: 6. Even if the Operation is exempt as a pre-existing development, an Act 250 permit remains required prior to any further use of the crusher and the access road, and prior to any further bringing onto the Operation site of earth resources from Mr. Gross's Northfield pit for crushing. 7. Neither the July 1993 Decision nor the July 1994 Supplement were appealed to the Vermont Supreme Court within 30 days. 8. The Board incorporates by reference all of the Findings of Fact contained in the July 1993 Decision and the July 1994 Supplement. In so incorporating, the Board notes that Finding of Fact #3 in the July 1993 Decision is superseded by Finding of Fact #10 in the July 1994 Supplement. 9. The following findings of fact contained in the July 1993 Decision are particularly relevant to the matters presently before the Board: 1. In 1965, John and Marion Gross purchased a 112-acre tract located off Route 12A in the Town of Roxbury. At the time of purchase, a sand and gravel pit existed on the tract. . . . 4. Robert and Henrietta (Dolly) Swann, Mary Swann, and Marian Baker . . . are adjoining landowners who reside on Route 12A across from the tract on which the Operation is located. Mr. Swann has lived there for approximately 58 years. Dolly Swann has lived there for approximately 37 years. Marian Baker has lived there for over 50 years. 5. The credible evidence is that, prior to June 1, 1970, no crusher was used in connection with the Operation. . . . 9. During the summer of 1989, the Petitioner purchased a crusher which it has used on-site in connection with the Operation since purchase. The purpose of the crusher is to crush gravel prior to sale. The Petitioner uses the crusher for this purpose. The Petitioner has operated and will operate the crusher, and the gravel pit, at any time of day and on any day of the week in response to demand. This operation is intermittent rather than constant because demand fluctuates. 10. The market for gravel has changed over the years. "Bank run" (uncrushed) gravel used to be acceptable to municipalities, businesses, and construction companies, but now gravel has to be crushed in order to sell. This requires the use of a crusher or similar piece of machinery. . . . 12. John and Marion Gross own an approximately three-acre tract located in the Town of Northfield (the Northfield tract) within five miles of the tract on which the Operation is located. There is a gravel pit on the Northfield tract. Subsequent to the Petitioner's purchase of the crusher, Mr. Gross has, from time to time, caused gravel to be trucked from the Northfield tract over to the Operation for crushing. . . . 14. The following equipment is presently associated with the Operation: a crusher, four tandem trucks with a capacity of 14 cubic yards each, a sand screen, and two bucket loaders. 15. The Operation has been largely seasonal, with the period of greatest activity being in the warmer months of the year. 10. The Operation is located in an area which is primarily rural-residential. 11. William and Cheryl Cecil are adjoining landowners who reside on a tract which is on the same side of Route 12A as the Operation tract. Cheryl Cecil has lived there since 1975 and William Cecil has lived there since 1985. 12. Peter Evans and Debra Maloney-Evans, and Peter Evans' parents Rev. John and Mary Ann Evans, are adjoining landowners who reside on tracts which are on the same side of Route 12A as the Operation tract. Peter Evans has lived there since his parents' purchase in 1965. 13. Peter Evans and Debra Maloney-Evans have a young child with Cystic Fibrosis (CF) who was 10 years old at the time of the Board's hearing on August 31, 1994. CF is a genetic disease which affects the respiratory and digestive systems. The average life expectancy of a person with CF is now 30 years, and previously was lower. However, band on the oral testimony of Peter Evans at hearing, dust does not pose greater risk to a person with CF than it does to any other person. 14. The Applicants' crusher plant operation can be summarized as follows: Extracted material is brought to the crusher by trucks. The material comes either from the Operation or the Applicant's Northfield pit. The material is dropped in a hopper from a loader. The hopper funnels the material down over a screen. The screen blocks out rocks larger than approximately 1.5 inches in size. The remaining material feeds down into adjustable crusher draws and is crushed. The crushed material feeds onto a conveyor belt and then drops off the end of the belt onto the ground. 15. The Applicants propose to locate the crusher plant on the floor of the existing extraction area, with berms to the east, north, and west. The crusher plant will be located approximately 500 feet from Route 12A. 16. Noise of the crusher plant is audible from the tracts of the various adjoining landowners listed above (collectively, the Adjoiners). The plant location is: a. Approximately 500 feet from the tract of Robert and Dolly Swann, and approximately 700 feet from their house; b. Approximately 500 feet from the tracts of the Evanses, and approximately 700 feet from their houses; c. Approximately 300 feet from the tract of William and Cheryl Cecil, and somewhat over 600 feet from their residence. 17. The berm to the west of the crusher plant location (the Route 12A Berm) lies between, on the one hand, the crusher plant and, on the other hand, Route 12A and the residences of the Adjoiners who live across Route 12A from the Operation tract. 18. A hill is located behind the house of Robert and Dolly Swann. A railroad runs on the other side of this hill from their house. 19. Stands of trees lie between the crusher plant and the homes of the Evanses. 20. Trucks associated with crusher use travel in a circular pattern. They enter the Operation tract from Route 12A at an existing entrance across from the home of Robert and Dolly Swann and proceed southerly along the existing road to the crusher area or to areas of stockpiled crushed stone. They then continue north and then west back to Route 12A along the new access road and the cut in the Route 12A Berm. 21. The circular truck travel route reduces the need for trucks to back up. Therefore the circular route helps to reduce the use of back-up beepers which are on the trucks and which are audible from the Adjoiners' tracts. 22. At the time of the July 1993 decision, the Route 12A Berm cut created a "straight-in" view into the interior of the extraction area. The Applicants have extended the Route 12A berm and re-made the berm cut so that the cut is on a diagonal. The effect is of a continuous berm screening the interior. 23. As required by unappealed Condition #10 of Land Use Permit #5W1198 issued March 10, 1994 (the Permit) by the District #5 Commission, the Applicants have planted grass and pine trees on top of the berm extension. 24. As required by unappealed Condition #5 of the Permit, the Applicants have placed a layer of crushed stone at the exit onto Route 12A. This layer helps to clean truck tires and reduce dust as trucks leave the Operation tract. 25. Condition #8 of the Permit provides: The crusher shall only be operated within the hourly, daily, and other constraints as specifically set forth in general Findings of Fact #5. Nevertheless, the Commission disallows the operation of the crusher plant during the months of July and August in order to prevent unduly harmful impacts on surrounding residents, consistent with our conclusions under criterion 9(E). The Applicants do not challenge the constraints referred to in the first sentence of Condition #8. They do challenge the limit on crusher operation during July and August. 26. Finding of Fact #5 supporting the Permit provides: The applicants propose to process a maximum of 15,000 cubic yards of material at this site. Hours of operation will be from 9:00 a.m. to 3 p.m., Monday through Friday. The crusher will be operated no more than 20 hours during a calendar week. No operation will take place between January 1 and April 30 of each year. 27. The 15,000 cubic-yard amount referred to in Finding of Fact #5 reflects the Applicants' proposal to process such an amount of material on a yearly basis. 28. The Applicants propose to maintain a log of hours of crusher operation. The log will contain a running total of cubic yards crushed. The Applicants have provided a proposed log form. The Applicants propose that a requirement to maintain the log be incorporated as a permit condition and that the logs be made reasonably available for review by government officials. 29. Condition #13 of the Permit "limits the use of crusher plant to material extracted from the Roxbury gravel deposit." 30. Condition #14 of the Permit contains an expiration date of March 10, 1995. 31. The Applicants bring gravel extracted from their pit in Northfield to the Operation tract for crushing. Approximately 80 percent of the material crushed on the Operation tract comes from Northfield, for a total of approximately 12,000 cubic yards coming in from Northfield yearly. The remaining material is excavated from the Operation tract. 32. The Northfield material is brought in by trucks. At a capacity of 14 cubic yards per truck, this means a total of approximately 860 truck trips yearly from the Northfield pit into the Operation tract. 33. Trucks carrying material in from Northfield for crushing create dust, and noise which is audible to the Adjoiners. The noise creation occurs through engine noise, use of back-up beepers, and slamming of brakes. The dust creation occurs through the use of dirt roadways within the Operation tract and the loading of crushed stone onto the trucks. 34. The noise and dust impacts of the trucks combines with the noise and dust impacts of the crusher operation to exacerbate the perception of noise by, and the dust impacts on, the Adjoiners from the crusher plant operation. 35. The loudness of the noise perceived by the Adjoiners on their properties does not pose a risk of harm according to the weight of the evidence, including but not limited to sound measurements supplied by the parties. 36. The quality of sounds which are equally loud may be different because of differences in frequency, and one sound may irritate and the other may not. 37. The quality of the noise of the crusher plant and associated trucks harms the Adjoiners in the use and enjoyment of the residential properties because it is industrial. The perception of industrial noise interferes with family uses of residential property, particularly during the months of July and August, when outdoor use of the Adjoiners' residential properties is increased. The interference occurs because, in a residential setting, the industrial-type noise of the crusher operation and the associated trucks is perceived as irritating and out-of-character with the setting. 38. Since the inception of the crusher plant, the amount of dust generated by the Operation as a whole has increased. Approximately 25 percent of the Operation's total dust may be attributed to the operation of the crusher plant. Thus, the addition of the crusher plant has increased the Operation's total dust by approximately 33 percent. 39. On windy days, the Adjoiners can experience substantial amounts of dust blown from the Operation. Some of this dust comes from the crusher plant, and some comes from stockpiles or excavated areas of the Operation tract. To minimize dust, the Applicants propose to place all stockpiles (including topsoil) within the existing extraction area, which is below the grade of the Operation tract's unexcavated portion. 40. The increase in dust blown from the Operation interferes with family uses of residential property, particularly during the months of July and August, when the Adjoiners' outdoor use of their residential properties is increased. The dust increase is therefore out of character with its residential setting. 41. Dust sampling results show dust concentrations within workplace exposure limits set by the Vermont Occupational Safety and Health Administration. These results were taken at the crusher location while the crusher plant is operating. 42. Air samples have been taken at the border of the Operation tract with the Maloney-Evans tract and tested for total suspended particulate (TSP) matter. The TSP samples show an average concentration of 274 micrograms per liter (ug/l) at this location, measured over a seven-hour period while the crusher was operating. The record does not disclose whether trucks associated with the crusher plant were in use during the sampling. 43. In Vermont, the primary ambient air quality standard for TSP is 75 ug/l as an annual geometric mean and 260 ug/l as a maximum 24-hour concentration not to be exceeded more than once in a year. A primary ambient air standard is the level considered adequate to protect the public health. 44. In Vermont, the secondary ambient air quality standard for TSP is 150 ug/l, and is a maximum 24-hour concentration not to be exceeded more than once in a year. A secondary ambient air quality standard is the level considered adequate to protect public welfare, to prevent injury to animals, plants, or property, and prevent unreasonable interference with the enjoyment of life or property. 45. The dust and TSP samples were taken on July 26, 1994. 46. July and August are the months of greatest demand for crushed gravel. The Applicant proposes to limit the crusher plant operation to a total of 15 days during July and August. 47. At the current rate of extraction, the Operation could continue for another 10 years before exhausting the gravel deposit on the Operation tract. 48. The Applicants blend gravel from its Northfield pit with gravel extracted from the Operation tract because the blended product is more marketable. 49. Physically, the Applicants can stockpile, during months other than July and August, gravel which can be sold to meet demand during July and August. The Applicants do not wish to stockpile in this manner because it results in an increase in the expense of producing their product. IV. CONCLUSIONS OF LAW A. Criterion 8: Aesthetics, Scenic or Natural Beauty 1. Statutory Provision and Burden of Proof The Board cannot issue a permit without finding that a proposed project will not have an undue adverse effect on aesthetics or scenic or natural beauty. In relevant part, 10 V.S.A. § 6086(a) provides that: Before granting a permit, the board or district commission shall find that the subdivision or development: * * * (8) Will not have an undue adverse effect on the scenic or natural beauty of the area, aesthetics . . . . The burden of proof is on the opponents under this criterion, but the Applicant must provide sufficient information for the Board to make affirmative findings. 10 V.S.A. § 6088(b); Re: Killington, Ltd. and International Paper Realty Corp., #1R0584-EB-1, Findings of Fact and Conclusions of Law and Order (Revised) at 21 (Sep. 21, 1990). 2. Analysis The Board uses a two-part test to determine whether a project meets Criterion 8. First, it determines whether the project will have an adverse effect. Second, it determines whether the adverse effect, if any, is undue. Re: Quechee Lakes Corp., Applications #3W0411-EB and #3W0439-EB, Findings of Fact, Conclusions of Law and Order at 18-19 (January 13, 1986). a. Adverse Effect With respect to the analysis of adverse effects on aesthetics and scenic beauty, the Board looks to whether a proposed project will be in harmony with its surroundings or, in other words, whether it will "fit" the context within which it will be located. In making this evaluation, the Board examines a number of specific factors, including the nature of the project's surroundings, the compatibility of the project's design with those surroundings, the suitability for the project's context of the colors and materials selected for the project, the locations from which the project can be viewed, and the potential impact of the project on open space. Id. at 18. At issue is the noise and dust impacts associated with the crusher plant operation. Included in the noise and dust impacts of the crusher operation are the noise and dust impacts of trucks associated with that operation. In regard to the inclusion of such truck impacts, the Board cites paragraph six of the July 1993 Decision (as revised by the July 1994 Supplement) and the above findings of fact concerning the use of trucks in connection with the crusher plant. Based on the foregoing findings of fact, the Board concludes that the quality of the noise from the crusher plant operation does and will have an adverse aesthetic effect on the Adjoiners. Specifically, the industrial-type noise created by the crusher plant and associated trucks intrudes into and is out-of- character with the Adjoiners' residential uses, particularly during July and August. Based on the foregoing findings of fact, the Board concludes that dust associated with the crusher plant operation does and will have an adverse aesthetic effect on the Adjoiners. Such dust significantly exacerbates the total amount of dust from the Operation and is out of character with its residential setting. With respect to the legality of the conclusion regarding dust, the Board may regulate the exacerbation of an existing environmental condition. In re Pilgrim Partnership, 153 Vt. 594, 596 (1990). Further, in assessing the impact of a portion of an extraction operation over which jurisdiction exists, the Board may consider the aggregate impact caused by the extraction operation even though it does not have jurisdiction over the remainder. Re: R.E. Tucker, Inc., #5W0829- EB, Findings of Fact, Conclusions of Law, and Order at 7 (June 2, 1986); affirmed in relevant part and reversed on other grounds, 149 Vt. 551, 556 (1988). This is because, as is the case with dust, the impacts often are not severable. Accordingly, the Board may consider the aggregate impact and, under 10 V.S.A. §§ 6086(c) and 6087(a), deny or condition the crusher plant or associated trucks as a result of such consideration. b. "Undue" In evaluating whether adverse effects on aesthetics and scenic beauty are undue, the Board analyzes three factors and concludes that a project is undue if it reaches a positive conclusion with respect to any one of these factors, which are: a. Does the project violate a clear, written community standard intended to preserve the aesthetics or scenic beauty of the area? b. Does the project offend the sensibilities of the average person? Is it offensive or shocking because it is out of character with its surroundings or significantly diminishes the scenic qualities of the area? c. Has the Applicant failed to take generally available mitigating steps which a reasonable person would take to improve the harmony of the proposed project with its surroundings? Quechee at 19-20. With respect to the first factor, the Board has not been presented with a clear, written community standard regarding aesthetics. With regard to the second factor, the Board is not persuaded that the noise from the crusher plant operation rises to the level of being shocking or offensive. Concerning the third factor, the Board concludes that the Applicants have taken or propose to take many but not all generally available mitigating steps which a reasonable person would take, and that additional mitigation is required. The reasonable steps which the Applicants have taken or propose to take include the following: the proposed limit on crushing to no more than 15 days during July and August; the location of the crusher plant 500 feet from Route 12A, with berms on three sides; placing all stockpiles (including topsoil) within the existing excavation area; the creation and planting of the Route 12A Berm extension; the diagonal cut for the access road through the Route 12A Berm; the circular routing of the trucks associated with the crusher plant; the layer of crushed stone at the exit onto Route 12A; and the limits on hours of operation to no more than 20 hours per week, 9:00 to 3:00 p.m., Monday through Friday, with no operation between January 1 and April 30 of each year. While these are reasonable steps, they do not sufficiently improve the harmony of the crusher plant operation's noise and dust impacts with the Adjoiners' residential uses. The Applicant still proposes to exacerbate the noise and dust of the crusher operation by the use of approximately 860 trucks per year to bring in gravel from their Northfield pit. Over the eight months of proposed operation, this figure translates to an average of over 100 trucks a month, with more intense levels likely to occur during the summer when demand peaks. Thus, particularly during the summer months, the Adjoiners can be expected to continue to experience adverse aesthetic impacts of noise and dust associated with the crusher plant operation despite the steps the Applicants have taken. To reduce the adverse impact on the Adjoiners during the summer months, the Board will prohibit the Applicants from bringing Northfield gravel onto the Operation tract during the months of July and August. During those months, such a prohibition will serve to eliminate noise and dust from trucks carrying in Northfield gravel and also should reduce use of the crusher plant because 80 percent of the material the Applicants crush is from their Northfield pit. Pursuant to 10 V.S.A. § 6086(c), the Board may and will issue permit conditions requiring the mitigating steps the Applicants have taken or propose, and the prohibition on Northfield gravel during July and August. Because these conditions include limits on hours of operation, the Board also will include the Applicants' proposed permit condition regarding a log of crusher operation. With the conditions discussed above, the proposed project complies with Criterion 8. The Board therefore concludes that it need not go further and prohibit all gravel from their Northfield tract or all crushing during July and August. The Board recognizes that the prohibition on crushing during July and August has been an important issue in this case but believes that, with the other conditions discussed above, the Applicants' proposed 15-day limit during those months is sufficient. B. Criterion 9(E): Extraction of Earth Resources 10 V.S.A. § 6086(a)(9)(E) provides: A permit will be granted for the extraction or processing of mineral and earth resources, including fissionable source material: (i) when it is demonstrated by the applicant that, in addition to all other applicable criteria, the extraction or processing operation and the disposal of waste will not have an unduly harmful impact upon the environment or surrounding land uses and development; and (ii) upon approval by the district commission or the board of a site rehabilitation plan which insures that upon completion of the extracting or processing operation the site will be left by the applicant in a condition suited for an approved alternative use or development. . . . The burden of proof under Criterion 9(E) is on the Applicants. 10 V.S.A. § 6088(a). The Board need not review Subsection (ii) of Criterion 9(E) in this matter because the context of this appeal is Conditions #8 and #13, which respectively prohibit the use of the crusher plant during July and August and the crushing on the Operation tract of material from the Applicants' Northfield pit. Site rehabilitation is not relevant to those conditions. The central issue in this matter under Subsection (i) of Criterion (9)(E) is the question of undue harm to surrounding land uses. The Board considers Criterion 9(E) to include and go beyond aesthetic impacts on the Adjoiners, to encompass interference with the Adjoiners' enjoyment of their land, and to seek to prevent such interference from becoming undue. The Board concludes that, unless the conditions discussed above under Criterion 8 (aesthetics) are imposed, the noise and dust impacts of the crusher plant operation will cause undue harm to the Adjoiners' use of their land. The Board's conclusion is based on the foregoing findings of fact and in part based on the discussion, above, under Criterion 8 (aesthetics). In connection with Criterion 9(E) specifically, the Board considers the above conditions to be independently justified. The Adjoiners' residential use of their tracts pre-dates, in some cases by decades, the inception of the crusher plant operation. To borrow from the language of nuisance law, they did not come to the nuisance; the nuisance came to them. Accordingly, the Board gives great weight under Criterion 9(E) to the Adjoiners' use and enjoyment of their land. With the conditions discussed above under Criterion 8 (aesthetics), the proposed project complies with Criterion 9(E). The Board therefore concludes that it need not go further and prohibit all gravel from the Northfield tract or all crushing during July and August. C. Permit Expiration Date The Applicants raise two arguments concerning Condition #14, which sets a permit expiration date of March 10, 1995. First, they assert that current law does not authorize setting an expiration date for a crusher plant operation. Second, and alternatively, they contend that the date in Condition #14 is too short, arguing that the economically useful life of the project is much longer. 10 V.S.A. § 6090(b), as amended by Act 232 of the 1993 Biennium (effective June 21, 1994), provides: (1) Any permit granted under this chapter for extraction of mineral resources, operation of solid waste disposal facilities, or logging above 2,500 feet, shall be for a specified period determined by the board in accordance with the rules adopted under this chapter as a reasonable projection of the time during which the land will remain suitable for use if developed or subdivided as contemplated in the application, and with due regard for the economic considerations attending the proposed development or subdivision. Other permits issued under this chapter shall be for an indefinite term, as long as there is compliance with the conditions of the permit. (2) Expiration dates contained in permits issued before July 1, 1994 (involving developments that are not for extraction of mineral resources, operation of solid waste disposal facilities, or logging above 2,500 feet) are extended for an indefinite term, as long as there is compliance with the conditions of the permits. 10 V.S.A. § 6090(b) (emphasis added). With respect to expiration dates, the Board has promulgated EBR 32(B)(2), which provides: Permit expiration date. The duration of a permit may be limited to the economically useful life of the permitted project, but shall at a minimum extend through that time period over which the permit holder or his successors in interest will be responsible and accountable for compliance with time-specific permit conditions, including proper and timely completion of the project. During its term, a permit shall run with the land. FN1 Under the amended 10 V.S.A. § 6090(b), authority to issue permits with expiration dates is now limited to three classes of projects, one of which is "extraction of mineral resources." Projects which do not fit within one of the three classes receive permits which do not expire as long as the conditions are not violated. The Applicants argue that the crusher plant operation does not constitute the "extraction of mineral resources." However, a crusher plant clearly is an important part of the process of extracting such resources for commercial purposes. In fact, as the Board found in the July 1993 Decision, gravel has to be crushed in order to sell in the current market. Accordingly, the Board concludes that is required by 10 V.S.A. § 6090(b) to set an expiration date for the crusher plant operation. The Board also concludes that it is appropriate to base the expiration date of the crusher plant on the expected life of the Operation because the crusher is a part of that Operation. The Board has found, above, that at current extraction rates the Operation is viable for another 10 years. This is based on the sworn testimony at hearing of applicant John Gross. Accordingly, the Board will set an expiration date of 11 years from the date of the Permit: 10 years for the remaining life of the Operation and one year for the period during which this appeal was pending before the Board. D. Permit Conditions Pursuant to 10 V.S.A. § 6086(c), the Board will amend Conditions #8, #13, and #14 of the Permit as needed to achieve the foregoing decision. V. ORDER Land Use Permit #5W1198-EB is hereby issued. Jurisdiction is returned to the District #5 Commission. Dated at Montpelier, Vermont this 27th day of April, 1995. ENVIRONMENTAL BOARD \s\Arthur Gibb Arthur Gibb, Acting Chair Lawrence H. Bruce, Jr.* John T. Ewing Lixi Fortna Samuel Lloyd* William Martinez Robert G. Page Steve E. Wright** *Members Bruce and Lloyd concur in the decision but would go further and prohibit altogether the bringing of Northfield gravel onto the Operation tract. **Member Wright dissents with regard to allowing Northfield gravel onto the Operation tract and to allowing up to 15 days of crushing during July and August. He would prohibit altogether: (a) the bringing of Northfield gravel onto the Operation tract and (b) the use of the crusher during July and August. He otherwise concurs in the decision. FN1 On March 15, 1995, the Board publicly proposed amendments to Rule 32 in light of changes made to 10 V.S.A. SS 6090 by Act 232 of the 1993 Biennium. Because these amendments are proposed, they are not applied to the project at issue. grossapp.dec (a21)