RE: Vermont Agency of Transportation (Rock Ledges), Declaratory Ruling #296, Findings of Fact, Conclusions of Law and Order (Second Revision), (April 12, 1996) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 Re: Vermont Agency of Transportation (Rock Ledges) Declaratory Ruling #296 FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER (SECOND REVISION) The Agency of Transportation ("AOT") has and/or intends to remove or otherwise alter certain median and side rock ledges along Interstates 89 and 91. AOT expects to carry out this work in twelve separate projects (collectively "Ledgework"): one which is already the subject of a valid Act 250 Permit ("Thetford-Fairlee Project"); five which are complete or ongoing ("Complete/Ongoing Projects"); and six which are in the preliminary planning stages ("Preliminarily Planned Projects"). This decision pertains to whether a permit is needed pursuant to 10 V.S.A. Chapter 151 ("Act 250") for the Ledgework in its entirety or for any particular project or combination of projects which is part of the Ledgework. The issue is whether or not the Ledgework may have a significant impact under any one of the Act 250 criteria and thus constitute a substantial change to the Interstates. As is explained below, the Environmental Board concludes that an Act 250 permit is required for the Thetford-Fairlee Project but not for the Complete/Ongoing Projects. The Board finds that the record does not contain sufficient evidence for it to conclude whether or not the Preliminarily Planned Projects, individually or in combination, require an Act 250 Permit. As a consequence, the Board will hold its decision regarding the Preliminarily Planned Projects in abeyance until after AOT has submitted additional information to the Board. This information shall result from AOT investigations, tests and evaluations. It shall describe in sufficient detail the Preliminarily Planned Projects and any other ledge treatment/work along the Interstates for which AOT has conducted preliminary planning. I. SUMMARY OF PROCEEDINGS On July 19, 1993, District #5 Coordinator Edward Stanak and District #3 Coordinator Robert Sanford jointly opined in Advisory Opinion 5-93-8 that the Ledgework did not need an Act 250 Permit. On May 31, 1994, Board General Counsel Stephanie J. Kaplan issued Advisory Opinion #EO-93-288 in which she determined that the Ledgework did need an Act 250 permit. On June 30, 1994, AOT filed a Petition for Declaratory Ruling ("Petition"). On August 8, 1994, then Board Chair Arthur Gibb convened a prehearing conference in Montpelier. On August 17, 1994, Chair Gibb issued a prehearing conference report and order. Chair Gibb acknowledged that the Planning Commission of the Town of Fairlee was a party by right and granted Dean Corren party status pursuant to Environmental Board Rule ("EBR") 14 (B)(1)(B). Additionally, a hearing on the merits of the Petition was set for December 21, 1994. During October and November of 1994, the parties filed testimony and lists of witnesses and exhibits. On October 27, 1994, Representative Corren filed a request for a subpoena to compel the attendance and testimony of Steve Parren at the hearing. Mr. Parren is a nongame biologist who is employed by the Agency of Natural Resources ("ANR"). He is familiar with the Peregrine Falcon population located near Fairlee. On December 2, 1994, Chair Gibb denied the requested subpoena but asked ANR to make Mr. Parren available at the hearing. On December 21, 1994, the Board held a hearing in Montpelier in which the following parties participated: AOT and Representative Corren. Near the end of the hearing, the Board, with the consent of the parties, extended the filing date for proposed findings of fact and conclusions of law to January 30, 1995. After the hearing, the Board recessed pending review of the record, deliberation and decision. The Board deliberated on December 21, 1994, February 22, 1995 and June 1, 1995. On June 1, 1995, following a review of the evidence and arguments presented in the case, the Board declared the record complete and adjourned the hearing. On June 15, 1995, the Board issued Findings of Fact, Conclusions of Law and Order ("Decision"). On July 14, 1995, AOT filed a Motion to Alter ("Motion"). In the Motion, AOT asked the Board to: (1) delete a requirement that AOT submit a Ledgework Masterplan; and (2) state that the Board can neither make a declaratory ruling on, nor retain jurisdiction over the Preliminarily Planned Projects and/or other ledge treatment/work along the Interstates but that the parties may seek advisory opinions at appropriate times. On August 23, 1995, Representative Corren filed objections to the Motion ("Objections"). In the Objections, Representative Corren asks the Board to clarify the Decision in two ways: (1) explicitly state that Act 250 applies to past and proposed ledge treatments; and (2) explicitly state that AOT should have applied for an Act 250 permit before undertaking work on any of the Complete Ongoing Projects. Neither party requested oral argument. On September 27, 1995, the Board deliberated on the Motion and Objections. On November 13, 1995, the Board issued a revised Findings of Fact, Conclusions of Law and Order. On December 13, 1995, AOT filed a second motion to alter ("Second Motion"). In the Second Motion, AOT asks the Board to: (1) delete existing finding of fact #12 which relates to ledge treatment/work along the Interstates which is similar in nature to but not included among the Preliminarily Planned Projects; (2) limit the scope of the additional information which AOT must submit to the Board to the Preliminarily Planned Projects; (3) allow AOT to commence construction at its own risk on any one of the Preliminarily Planned Projects or any other ledge treatment/work along the Interstates for which AOT has conducted preliminary planning; (4) delete the requirement that AOT include certain evaluations in the additional information it submits to the Board; and (5) correct a typographical error. On February 23, 1996, Representative Corren filed a response to AOT's second motion to alter and a counter motion to alter. In his counter motion to alter, Representative Corren asks the Board to alter the revised decision to reflect that the Complete/Ongoing Projects originally required Act 250 permits but, because these projects are now complete, no such permits are required at this time. On February 28, 1996, the Board heard oral argument on the Second Motion and Representative Corren's counter motion to alter. Immediately thereafter, the Board deliberated. The Board deliberated again on April 10, 1996. 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 deemed irrelevant, redundant and/or inaccurate and denied. II. ISSUES 1. Whether Interstates 89 and 91 constitute a pre- existing development pursuant to 10 V.S.A. §§ 6081(b) and EBR 2(O). 2. Whether the Ledgework constitutes a substantial change to a pre-existing development pursuant to 10 V.S.A. § 6081(b) and EBR 2(G). III. FINDINGS OF FACT 1. Interstates 89 and 91 ("Interstates") were built for state purposes prior to June 1, 1970 and consist of more than ten acres. 2. AOT plans to or already has removed or otherwise altered certain rock ledges along the Interstates. 3. The Ledgework consists of twelve separate AOT projects. Work on the Complete/Ongoing Projects was complete or underway as of December 21, 1994. The Complete/Ongoing Projects are more particularly described as: a.) Guilford-Springfield (AOT Project #091-1(18, c/1); b.) Guilford-Springfield (AOT Project #091-18, c/2); c.) Springfield-Hartford (AOT Project #091-1(20)); d.) Berlin-Williston (AOT Project #089-2(15)); and e.) Royalton-Berlin (AOT Project #089-1(11)). 4. Work on the Thetford-Fairlee Project and the Preliminarily Planned Projects was planned but not underway as of December 21, 1994. The Thetford-Fairlee Project and the Preliminarily Planned Projects are more particularly described as: a.) Hartford-Sharon-Royalton (AOT Project #089-1(8)); b.) Hartford-Newburg (AOT Project #091-2(6)); c.) Thetford-Fairlee (AOT Project #091-2(7)); d.) Ryegate-St.Johnsbury (AOT Project #2(8)); e.) St. Johnsbury-Lyndon (AOT Project #91-3(5)); f.) Lyndon-Derby (AOT Project #091-3(6)); and g.) Waterford (AOT Project #093-1(8)). 5. AOT applied for and received an Act 250 permit for the Thetford-Fairlee Project. 6. The Ledgework involves removing and/or scaling back median ledges, widening rockcuts by blasting and scaling rock faces situated along the Interstates. After blasting or scaling rock, associated vegetation is removed from the Project area. 7. AOT's basic design standard for blasting side rock ledges has been a 4 (vertical) to 1 (horizontal) slope. AOT selected the geometry of the "rock cuts" by considering a number of economic, geological, geometrical and physical factors. AOT uses computer models to design what the ledges should look like. AOT did not consider aesthetics in designing the cuts. 8. Approximately 398,397 cubic yards ("cy") of rock had been blasted, scaled and removed during the Completed/Ongoing Projects as of December 21, 1994. The approximate amount of rock removed from each of these projects is: a.) 61,670 cy from Berlin-Williston; b.) 240,311 cy from Guilford-Springfield (both projects); c.) 66,849.4 cy from Springfield-Hartford; and d.) 29,476 cy from Royalton-Berlin. 9. Construction began and ended for each of the Complete/Ongoing Projects as follows: Project Name Start Date End Date Guil-Spr c/1 10/30/89 1/17/92 Guil-Spr c/2 9/11/92 incomplete Spr-Harford 7/6/92 6/23/94 Berl-Will 8/10/92 7/15/94 Royal-Berl 4/15/94 incomplete 10. As of December 21, 1994 the approximate amount of rock to be removed from the Thetford-Fairlee Project and each of the Preliminarily Planned Projects is: a.) 36,900 cy from Thetford-Fairlee; b.) 10,000 cy from Hartford-Sharon-Royalton; c.) an undetermined amount from Lyndon-Derby; and d.) 10,000 cy from remaining planned projects. These figures are estimates. They may increase or decrease as the design process continues. AOT has not yet determined which median formations will be removed or otherwise affected by the Preliminarily Planned Projects. 11. There were more than 50 median ledge formations along the Interstates. A relatively small number of them have been removed by the Complete/Ongoing Projects. 12. AOT may have conducted preliminary planning for and may expect to commence construction on certain ledge treatment/work along the Interstates which is similar in nature to but not included among the twelve projects comprising the Ledgework. 13. After the public expressed its concerns about the Complete/Ongoing Projects, AOT altered the criteria by which it determined which ledges along the Interstates required treatment/work. The initial ledge removal policy changed from one with an emphasis on creating clear zones to one of eliminating identifiable accident and high maintenance locations. As a result of this change, the amount of ledge that will be removed and/or altered by AOT as part of the Complete/Ongoing Projects was reduced. 14. Several Burlington residents including Representative Corren formed the Save the Rocks Coalition. This coalition held a number of planning sessions and public meetings. AOT officials, including Secretary Garahan, attended these gatherings and shared information. After the public expressed its continued concern regarding the Complete/Ongoing Projects, AOT reevaluated the criteria it used to determine which section of ledge would be subject to treatment work. As a result, in part, of additional public input, AOT issued its "Policy on the Ledge Removal on Intestate Safety Projects" on April 8, 1994. This policy describes certain steps that AOT will take to address ledge areas during the design of Interstate Safety Projects. The likely result of this policy is that the Preliminarily Planned Projects will involve less ledge removal. 15. The Ledgework involves the use of heavy machinery to "scale" ledges or in the case of removing more substantial quantities of rock, blasting. Trucks haul resultant waste rock material to other areas for storage and disposal. The waste rock is also used to flatten slopes along the Interstates, add to some permanent Jersey barriers, help meet drainage needs and improve certain median sections where AOT believes long-term erosion has occurred. Vegetation and large quantities of soils along the Interstates have been and may need to be removed. Very little soil has been/will be disturbed by the Complete/Ongoing Projects. 16. Activities associated with the Ledgework include: installation or replacement of right-of-way fences, guardrails and Jersey barriers; digging of old ditches and/or the creation of new drainage ditches and culverts to accommodate stormwater runoff, channel water parallel to the roads and foster erosion control; excavation and regrading with new topsoil and oat seed to stabilize erodible soils; road resurfacing; and dust control. 17. Most of the rock excavated from the Complete/Ongoing Projects was used within the Interstates' right of way. However, some was stockpiled at AOT yards or hauled to private property. 18. Traffic has been and may be temporarily affected during the Complete/Ongoing Projects. AOT has employed traffic control, traffic signs, temporary traffic barriers and "related items" to reduce traffic impacts. 19. Traffic detours divert traffic from the Interstates onto smaller Vermont state highways. These detours inconvenience motorists. Most motorists are accustomed to road work caused delays. 20. At the Thetford-Fairlee Project, AOT plans to combine ledge blasting and removal with the placement of wire mesh netting over the Palisades rock formation. The bottom of the netting system will be close to the foot of the Palisades rock formation. A specially graded catchment area will be established within the project area. This project is directly adjacent to a Peregrine Falcon nest area. The birds feed and raise their young in the vicinity of this project. Peregrine Falcons are protected under the Federal Endangered Species Act. 21. During the Thetford-Fairlee Project, three detours will be used. They will not be in place at the same time. 22. A Class 3 wetland exists within the Thetford-Fairlee Project. The wetland is on the northwest side of the southbound lane of Interstate 91. None of the Complete/Ongoing Projects have had or will have a significant impact upon wetlands. None of the Preliminarily Planned Projects have reached the point where potential wetland impacts have been identified. 23. AOT acquired approximately 1.95 acres of right-of-way within the Thetford-Fairlee Project. In addition, AOT acquired a permanent right to use approximately one mile of woods road in an existing Central Vermont Public Service Corporation easement. AOT will improve this road with a surface of crushed rock and will install several culverts. 24. The Thetford-Fairlee Project has the potential for significant impact under Criteria 8 (aesthetics) due to the wire mesh system and 8(A) (wildlife) due to the project's proximity to the Peregrine Falcon population. 25. A small number of median ledges have been removed during the Complete/Ongoing Projects. These removal areas have been filled, seeded and mulched. Their appearance matches that of the adjacent median. Outside ledges are not removed. They are scaled back. After the work is complete, the newly blasted areas appear different than ledge areas left in place. The rock drilling which precedes blasting leaves vertical lines on the cliff face from which the rock is removed. After blasting, these areas quickly weather. The overall appearance of the Interstates after outside ledge is treated is largely the same as it was before treatment. It is difficult for the typical motorist to tell where ledge work has been completed. 26. Geologists study the rock ledges to learn about the geologic history of the Green Mountains. 27. The Ledgework will not increase the vehicular capacity of the Interstates. 28. The Interstates have scenic value. The rock ledges contribute to this value. This scenic value is offset somewhat by directional signs, automobiles, trucks, jersey barriers, etc. 29. The Complete/Ongoing Projects have not and will not significantly impact: water availability from nearby water supplies; the ability of government to provide governmental or educational services, or to accommodate growth; public investment; agricultural soils; earth resources; energy use; utility services; rural growth areas; aesthetics; the local or regional plan or any other factor/value which the Act 250 Criteria are designed to protect. IV. CONCLUSIONS OF LAW 1. Development 10 V.S.A. § 6081(a) requires that a permit be obtained prior to commencement of construction on a development or prior to commencement of development. Development includes state projects involving more than ten acres of land. 10 V.S.A. § 6001(3). The Interstates constitute development. 2. Pre-existing Development Pre-existing developments are exempt from the Act 250 permit requirement unless there has been or is planned a substantial change to them. 10 V.S.A. § 6081(b) and EBR 2(A)(5). The Interstates are a pre-existing development. Therefore, an Act 250 permit is not required unless a substantial change occurs or is proposed. 3. Substantial Change EBR 2(G) defines substantial change as "any change in a development or subdivision which may result in significant impact with respect to any of the criteria specified in 10 V.S.A. § 6086(a)(1) through (a)(10)." The validity of EBR 2(G) has been upheld by the Vermont Supreme Court. In re Barlow, 160 Vt. 513, 521-22 (1993); In re Orzel, 145 Vt. 355, 360-361 (1985). The Board has articulated a two-prong test which must be satisfied when applying EBR 2(G). First, there must be a cognizable change to the pre-existing development. Second, if a cognizable change is found, an Act 250 permit is required if the change has caused or may cause a significant impact under one or more of the ten criteria. Re: L.W. Haynes, Declaratory Ruling #192 at 7 (Sep. 5, 1987). The Board need only find that a change may result in significant impact, not that a change has resulted or will result in significant impact. However, the impact that may result must be significant. In re Barlow, supra at 521-22. a. Cognizable Change Repair or routine maintenance is not cognizable change under EBR 2(G). Re: Agency of Transportation (Leicester Route 7), Declaratory Ruling #153 at 4 (June 28, 1984) and Re: Windsor Correctional Facility, Declaratory Ruling #151, at 6 (May 9, 1984). Such activity does not alter the existing development. Rather, it prevents or eradicates alteration to an existing development which has occurred or would otherwise occur over time through normal wear and tear. The real question at this juncture is whether the Ledgework is repair or routine maintenance to the Interstates. If it is, an Act 250 permit is not required. If it is not, the Board continues with its substantial change analysis. To answer the question, it is helpful to consider relevant Board precedent. The following activities are not repair or routine maintenance: new pavement, guardrail replacement and elimination or decrease in pull- offs (Re: Agency of Transportation, Declaratory Ruling #298 (May 9, 1995)); an upgrade to an historic condition (Re: Town of Wilmington, Declaratory Ruling #258 at 12 (June 30, 1992)); the replacement of leach fields with a different sewage disposal system for a correctional facility (Re: Windsor Correctional Facility, supra.); and the widening of U.S. Route 7 to create a 30 foot wide clear zone (Re: Agency of Transportation (Leicester Route 7), Declaratory Ruling #153 (June 28, 1984)). By contrast, the restoration of a washed out road to its original condition is repair or routine maintenance. Re: Productions, Ltd., Declaratory Ruling #168 (April 10, 1985). The nature of the Ledgework is analogous to that of the leach field at issue in Re: Windsor Correctional Facility, supra. AOT agrees. See AOT's Proposed Conclusions of Law, at 6 and 7, #9. Additionally, it is very similar to that of the road work at issue in Re: Agency of Transportation, Declaratory Ruling #298 supra. The Board concludes that the Ledgework is not merely repair or routine maintenance. Rather, the Board finds that the Ledgework is an upgrade to the Interstates. It is not simply an effort to correct the effects of normal wear and tear. Nor is it an effort to protect the Interstates from such effects. Rather, it is designed to change the Interstates to improve driver safety and reduce future maintenance. The Ledgework is not focused on the original condition, character or make-up of the Interstates. It is intended to and will result in a cognizable change to Interstates. b. Potential for Significant Impact The Board has not specifically defined the term "significant". In re Barlow, 160 Vt. at 522. The determination as to whether there is a potential significant impact is "inextricably fact bound and not susceptible to the application of preset definitional rules." Id. i. The Thetford/Fairlee Project The Thetford-Fairlee Project may have significant impacts under Criterion 8(A) (wildlife habitat and endangered species) due to the associated Peregrine Falcon nesting site. The Board believes that the activities involved in or associated with this project may have an impact upon the nesting, feeding or rearing habits of the birds. The proposed netting system will be the only one of its kind along the Interstates. Consequently, it will be very noticeable to passing motorists. It will not weather as will AOT's other ledge treatments which comprise the Ledgework. It will not "blend" with or begin to resemble any previously completed ledge treatment/work. Eventually, the system will weather and become relatively less intrusive. However, the project may also have a significant impact under Criterion 8 (aesthetics, scenic or natural beauty). FN1 Finally, this project may also significantly impact wetlands and associated streams and thus have a significant impact under Criteria 1(E) (streams) and 1(G) (wetlands). ii. The Complete/Ongoing Projects Water and air quality issues are raised by the blasting, culvert and ditch work, water withdrawal and dust control activities associated with these projects. Additionally, disposal of waste rock and vegetative materials and erosion runoff must be considered. The Board concludes that any impacts from these projects under each and every one of the Criteria are not sufficiently significant to constitute substantial change to the Interstates. Relatively little soil has been/will be removed or impacted by these projects. AOT has implemented erosion control measures for them. Due in part to these protections, the Board believes that, with respect to these projects, there is no chance for significant soil erosion impacts. The Board finds that the Complete/Ongoing Projects have and/or will cause temporary traffic delays, stoppages and detours. Travelers along the Interstates are accustomed to minor inconveniences caused by road work. These impacts have been or will be shortlived and insignificant. The Board notes that these projects will not significantly impact the view enjoyed by travelers along the Interstates. Motorists traveling along the Interstates will see a particular side ledge for a second or two as they pass by. In a relatively short period of time, the side ledges treated during the Complete/Ongoing Projects will look like the side ledges created during the initial construction of the Interstates. iii. The Preliminarily Planned Projects The Board is concerned about the impacts that the Preliminarily Planned Projects will have upon streams, wetlands, soil erosion and, most particularly, the scenic beauty of the Interstates. AOT acknowledges that these projects are still in the preliminary planning stages. AOT has not considered aesthetics in planning the Ledgework. AOT candidly states that the Board "cannot at this time reach a decision for the [Preliminarily Planned Projects]". AOT's Proposed Conclusions of Law, at 11, #17. The Board agrees. The Board cannot, based upon the current state of the record, conclude whether or not one or more of the Preliminarily Planned Projects may have a significant impact under any of the Criteria. The Board simply cannot conduct a detailed review of the potential impacts of these projects until AOT has fully completed its planning function and supplied all relevant and necessary information to the Board for public review and the Board's consideration. The Board will hold its decision on the Preliminarily Planned Projects in abeyance. It will not issue a decision on these projects, individually or collectively, until AOT has submitted additional information to the Board. This information shall describe in sufficient detail the Preliminarily Planned Projects and any other ledge treatment/work along the Interstates for which AOT has conducted preliminary planning. 4. Motion, Second Motion, Objections and the Counter Motion to Alter In the Petition, AOT states that it "will be glad to provide any documentation requested by the Board if its file materials are not adequate." In accordance with this offer, 10 V.S.A. § 6024 and EBR 20, the Board has directed AOT to submit certain additional information which the Board defined as a Ledgework Masterplan. AOT takes issue with certain aspects of this requirement. While the Board believes that most of the information is necessary, it will delete the "Ledgework Master Plan" terminology and a requirement for an analysis of aesthetics. The latter is unnecessary in light of the other ordered information submittals. AOT suggests that the Preliminarily Planned Projects should be addressed at the district coordinator level in separate and distinct jurisdictional opinions. We disagree. Such a piecemeal approach is contrary to the Petition, the procedural history of this declaratory ruling, program efficiency and appropriate planning principles. The Board's actions in this matter are not inconsistent with the Vermont Supreme Court's holdings in In re Agency of Administration, 141 Vt. 68 (1982) and In re Vermont Gas Systems, Inc., 150 Vt. 34 (1988). The Board has not concluded that the Preliminarily Planned Projects require an Act 250 permit. Rather, the Board is simply asking for more information from AOT in order to resolve the question. It is possible that once AOT submits and the Board reviews the additional information, the Board will conclude that none of the Preliminarily Planned Projects require an Act 250 permit. In response to the Second Motion, the Board will clarify finding of fact #12. This modified finding supports the Board's interest in additional information pertaining to any ledge treatment/work along the Interstates for which AOT has conducted preliminary planning. The Board will review this necessary information in order to more fully and accurately evaluate the impacts of the Preliminarily Planned Projects under any one of the Act 250 criteria. The Board will not use this information in this declaratory ruling proceeding to determine whether or not any other ledge treatment/work along the Interstates for which AOT has conducted preliminary planning requires an Act 250 permit. The Board will no longer preclude AOT from commencing construction on any of the Preliminarily Planned Projects or ledge treatment/work along the Interstates for which it has conducted preliminary planning before the Board has determined whether or not an Act 250 permit is required for each and every one of the Preliminarily Planned Projects. However, should AOT commence such construction without an Act 250 permit, it does so as it acknowledges in the Second Motion -- at its own risk. The Board will not delete the requirement that AOT include certain evaluations in the additional information it submits to the Board. This requirement is consistent with EBR 20 and 10 V.S.A. § 6024. The Board will correct the typographical error identified by AOT. The Objections were informative. They are indirectly addressed, to the extent necessary, in the foregoing discussion. Representative Corren's counter motion to alter is not timely filed pursuant to EBR 31. The Board will not grant the relief requested therein. V. ORDER 1. An Act 250 permit is required for the Fairlee/Thetford Project. 2. An Act 250 permit is not required for the Complete/Ongoing Projects, either individually or in any combination. 3. On or before Wednesday, June 12, 1996, AOT shall submit the following information: a.) a specific description of each and every one of the Preliminarily Planned Projects and any other ledge treatment/work along the Interstates for which AOT has conducted preliminary planning including, but not limited to, a statement of whether and in what amount each and every one of the Preliminarily Planned Projects and any other ledge treatment/work along the Interstates for which AOT has conducted preliminary planning involves median ledge and/or side ledge removal and/or alteration; b.) an analysis of the potential impacts of each and every one of the Preliminarily Planned Projects and any other ledge treatment/work along the Interstates for which AOT has conducted preliminary planning under each and every one of the Act 250 Criteria; and c.) an analysis of the alternatives (guardrails, signs, etc.) to each and every one of the Preliminarily Planned Projects and any other ledge treatment/work along the Interstates for which AOT has conducted preliminary planning. 4. The Board, upon review of the AOT submittal described above, and any evidence and argument relating thereto, shall promptly determine whether or not an Act 250 Permit is required for each and every one of the Preliminarily Planned Projects. Dated at Montpelier, Vermont this 12th day of April, 1996. ENVIRONMENTAL BOARD s/s Arthur Gibb __________________________ Arthur Gibb, Acting Chair* John T. Ewing Marcy Harding Robert G. Page, M.D. Anthony Thompson Steve E. Wright * On February 1, 1995, John Ewing became Chair of the Board. Arthur Gibb has continued as Acting Chair on this case at Mr. Ewing's request. FN1 Although AOT has obtained an Act 250 permit for this Project, the Board may opine on it. In re Barlow 160 Vt. at 518-520. a:AOT2MA**Final**(smc)