RE: Champlain Marble Corp. (Fisk Quarry), Declaratory Ruling # 319, Findings of Fact, Conclusions of Law, and Order (Oct. 2, 1996) VERMONT ENVIRONMENTAL BOARD 10 V.S.A. §§ 6001-6092 Re: Champlain Marble Corp. (Fisk Quarry) Declaratory Ruling # 319 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER This decision pertains to a proposal by the Champlain Marble Corporation ("CMC") to remove loose stone and extract rubble stone from the Fisk Quarry which is located near the southwest shore of Isle LaMotte. CMC previously conceded that 10 V.S.A. §§ 6001-6092 ("Act 250") applies to CMC s proposed dimensional stone quarrying activity in the Fisk Quarry. As explained below, the Environmental Board ("Board") concludes that an Act 250 permit is also required for the removal of loose stone and the extraction of rubble stone. I. BACKGROUND The Fisk Quarry is located on a tract of land approximately 24 acres in size near the southwest shore of Isle LaMotte, south of Fisk Point. The Fisk Quarry is owned by CMC which purchased the quarry from the Vermont Marble Company ("VMC") in February 1995. The Fisk family mined marble from the Fisk Quarry until they sold the quarry to VMC in 1919. VMC continued to actively mine marble from the Fisk Quarry up until the mid-1930's. The extraction activity that has occurred since 1950 has been limited primarily to the infrequent removal of loose stone for use in the construction of town roads and bridge abutments. CMC now proposes to reactivate the removal of existing rubble, fill stone, loose rock and rip-rap ("existing loose stone") and the blasting and extraction of waste or rubble stone from the rock faces ("extraction of rubble stone") within the Fisk Quarry (collectively Proposed Removal and Extraction Activities"). On October 27, 1995, the District #6 Environmental Commission's Coordinator ("Coordinator") provided CMC with Advisory Opinion #6-089, in which he concluded that CMC's Proposed Removal and Extraction Activities (including, at that time, the dimensional stone quarrying activity) constituted a development, and that the Fisk Quarry did not qualify as a pre-existing development. On January 17, 1996, in response to CMC's request for reconsideration, the Coordinator reiterated this opinion in Advisory Opinion #6-089(Reconsideration). Further, to satisfy CMC's request, the Coordinator indicated that even if the Proposed Removal and Extraction Activities were a "pre-existing development," they would constitute a substantial change to the development which would require an Act 250 permit. On February 16, 1996, CMC, through its attorney, Steven E. Schindler, filed a petition for a declaratory ruling ("Petition") concerning whether Act 250 applies to the Proposed Removal and Extraction Activities. CMC maintains that Advisory Opinion #6-089 (Reconsideration) was in error and contends that based on the historical extraction of existing loose stone, the Proposed Removal and Extraction Activities are grand-fathered and, therefore, exempt from Act 250. The Chair of the Board, John T. Ewing, convened a prehearing conference on April 29, 1996 in Montpelier ("Conference"). At the Conference, CMC stated that it would proceed with an Act 250 permit application despite its contention that Act 250 is not applicable to the Proposed Activities.(FN1) CMC conceded Act 250 jurisdiction only with respect to the proposed dimensional stone cutting activity. Consequently, CMC has applied to the Commission for a permit to conduct such activity. This proceeding, therefore, only addresses whether the Board has jurisdiction over the removal of existing loose stone ("Proposed Removal Activity") and the extraction of rubble stone ("Proposed Extraction Activity"), collectively referred to herein as the Proposed Removal and Extraction Activities. On May 16, 1996, the Chair issued a Prehearing Conference Report and Order ("Prehearing Order") which the Board incorporates herein by reference. The Prehearing Order included preliminary rulings as to party status. Therein, the Chair granted party status to the following persons and entity: South Shore Associates ("SSA"), represented by Joe Bivens; Linda Fitch, pro se; Mary Jane Tiedgen, pro se. Additional parties include CMC and a statutory party, the Agency of Natural Resources ("ANR"). As a result of CMC's segregation of the proposed project into two elements: (1) the dimensional stone quarrying activity; and (2) the Proposed Removal and Extraction Activity, the Chair identified two preliminary issues in the Prehearing Order. The Chair requested that the parties prepare written memoranda regarding each of these issues. Although this declaratory ruling request now seeks review of a proposal that is somewhat different than that which the Coordinator reviewed initially, there is no less of an actual controversy before the Board. On June 6, 1996, upon consideration of the parties memoranda, the Chair issued a Supplemental Prehearing Order and Revised Filing Schedule in which he determined that it was appropriate for the Board to review only the Proposed Removal and Extraction Activities. Additionally, the Chair specifically required CMC to provide a "a clear statement of the proposed activity" as part of its prefiled testimony. During June and July the parties submitted prefiled testimony, exhibits, and proposed findings and conclusions. On July 9, 1996, the Chair conducted a second prehearing conference by telephone, at which all remaining preliminary matters were addressed. These matters included the procedure for submitting evidence at the public hearing, a time frame for the site visit, and rulings on outstanding objections. On July 10, 1996, the Board convened a hearing in the Isle LaMotte Town Hall. Immediately after hearing a brief opening statement from each party, the Board proceeded with the collection of evidence and heard cross-examination. Thereafter, the Board conducted a site visit. When the site visit had concluded the Board reconvened. The Chair summarized the site visit on the record and directed the parties to continue with the presentation of closing arguments. The Board then concluded the hearing. The Board deliberated on July 10, 1996 and on September 25, 1996. The matter is now ready for decision. To the extent that any proposed findings of fact and conclusions of law are explicitly approved below, they are granted; otherwise, they are denied. Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983). II. ISSUE The narrow issue presented in declaratory ruling request # 319 is whether CMC's proposal to remove existing loose stone and extract rubble stone from the Fisk Quarry (formerly defined as "Proposed Removal and Extraction Activities") is exempt from jurisdiction as a pre-existing development. III. FINDINGS OF FACT 1. The Fisk Quarry is located on an approximately 24 acre tract of land near the southwestern shore of Isle LaMotte just north of Fisk Point. Another quarry, the Goodsell Quarry, is located along the eastern shore of Isle LaMotte. 2. The Fisk Quarry is surrounded by a residential neighborhood, agricultural land, and by the West Shore Road, which bisects the roughly 50 foot section of land that separates the southern boundary of the quarry from the shore of Lake Champlain. 3. The area in which the Fisk Quarry is located is a popular recreational retreat which attracts tourists and vacationers, particularly during the summer months. The area is also inhabited by full-time residents. 4. The Fisk Quarry was operated sporadically from 1666 to the mid-1990's for a variety of purposes one of which was the removal of loose stone. 5. Portions of the quarry stone which is heavily fissured and which overlies the more dense, more valuable, dimensional stone is known as either the "overburden," "the ledge," or the "x layer." This latter category of stone is also referred to alternatively as waste stone, unsound stone, or rubble stone. 6. Both the Fisk Quarry and the Goodsell Quarry were operated during the period from 1919 to 1995 by Vermont Marble Company ("VMC") and its successors in interest. Sometime prior to 1980, Pluess-Staufer/OMYA acquired VMC. VMC continued to operate as a division of Pluess-Staufer/OMYA. In 1995, CMC purchased the Fisk Quarry. 7. The Goodsell Quarry has been operated more consistently and continuously than the Fisk Quarry during the period from 1930 to the present. The Goodsell Quarry was active throughout the 1950s and 1960s and although the Goodsell Quarry was primarily quarried for dimension stone, it necessarily produced waste or rubble stone as a byproduct of the dimensional stone activity. 8. There is no credible evidence that the Fisk Quarry was being actively quarried in any of the years during the period 1950-present. Moreover during the period from 1950 to 1994, there are no credible reports of blasting or rock extraction. Rather, the limited records that do exist only support the finding that existing loose stone had been removed during this period and that one or two isolated incidents of blasting had occurred. 9. If a company is actively mining a quarry, the company must register the mine with the Mining Safety and Health Administration (MSHA). That requirement began some time in 1973 although a similar registration requirement was imposed by the Bureau of Mines prior to 1973. 10. MSHA registration is a federally imposed requirement upon quarry operators that is designed to monitor compliance with applicable health and safety regulations. 11. The Fisk Quarry has not been registered with MSHA since the MSHA registration requirement was imposed in 1973. The Goodsell Quarry is registered with MSHA. 12. The Goodsell Quarry is primarily a dimension stone quarry, whereas the Fisk Quarry, due to a variety of geological features, is less likely to produce a high quality dimension stone. 13. Waste factor represents a ratio of the amount of waste stone produced from the volume of dimension stone quarried. 14. The Goodsell Quarry has a lower waste factor than the Fisk Quarry. The volume of the dimension stone taken from the Goodsell Quarry, however, is greater than that removed from the Fisk Quarry during the period from 1950 to the present. Therefore, the Goodsell Quarry has produced a significant amount of waste or rubble stone despite its relatively low waste factor. 15. Much of the loose stone that was present in the Fisk Quarry from the period 1950 to 1994 appears to have been a byproduct of the dimensional stone quarrying activity that took place there during the first two decades of the 20th century. This finding is consistent with CMC's acknowledgment that the Fisk Quarry has a high waste factor and it is further supported by the lack of evidence demonstrating that blasting had occurred from roughly 1950 to the present. 16. Nearby residents and other frequent quarry visitors became familiar with the various piles of existing loose stone within the Fisk Quarry. The piles were present for a long enough period that local children, who played on the rock piles, adopted names for certain of these rock piles. Notable among these was Billy Goat Hill. 17. In 1971, VMC indicated to the Town of Isle LaMotte, that the Town could remove as much stone as it needed from the Fisk Quarry provided that the stone could be loaded using the Town's equipment. The agreement further stated that the Town could extract stone from the rock wall by blasting if it consulted in advance with Lance Meade, a geologist with VMC. If such a request were made, the agreement provided that Lance Meade could grant or deny such a request, and if the request were granted, he would designate the location from which stone should be removed and the extent to which blasting could occur. 18. From April 21, 1975 to June 28, 1975, VMC leased to Aztec Corporation of Essex Junction both the Fisk and Goodsell Quarries, allowing Aztec to remove loose stone. Again, if blasting were required, Aztec would need the permission of VMC. 19. No credible evidence has been submitted which demonstrates that permission for blasting was either requested or granted at the Fisk Quarry during the 1971-75 period within which VMC conditionally allowed extraction to occur. 20. VMC again leased the Fisk and Goodsell Quarries to the Town of Isle LaMotte for the period April 19, 1976 through July 2, 1976. VMC allowed removal of loose stone from either quarry and conditionally allowed extraction of rubble stone by drilling or blasting from the Fisk Quarry. No evidence was presented to establish whether any drilling or blasting in fact occurred. No reports determine whether removal occurred, and that if it did, how much stone was removed. 21. VMC leased the Fisk and Goodsell Quarries to Oscar La Bombard on similar terms during the period from November 1, 1976 through December 31, 1976 ("1976 La Bombard Lease"). This agreement specifies that loose stone could be removed from either quarry, and conditionally allowed extraction of rubble stone from the Fisk Quarry that could be drilled and blasted to meet Mr. La Bombard's specifications. 22. Records of the removal and extraction of stone pursuant to the 1976 La Bombard Lease are limited to: a. A February 15, 1978 letter in which VMC acknowledged receipt of Mr. La Bombard's check and requested a tally of rock taken and payments made; and b. A response dated February 22, 1978 in which Mr. La Bombard indicated that the total tally of loads was 820 and that a total of 1,148 dollars was sent to VMC. Neither oral testimony nor the written records verify whether blasting occurred during the 1976 La Bombard Lease. The records and testimony likewise do not specify which quarry the 820 loads were taken from. 23. In 1978, the Town of Isle LaMotte sought to continue removing waste stone for its Town projects, primarily road and bridge maintenance. By a letter dated March 14, 1978, the VMC set forth the terms of the Town's use of the Fisk and Goodsell Quarries during the period from April 3, 1978 through September 30, 1978 ("1978 Isle LaMotte Lease"). 24. The 1978 Isle LaMotte Lease allowed removal of loose stone from either the Fisk Quarry or the Goodsell Quarry or from both. In addition, it conditionally allowed drilling and blasting at the Fisk Quarry if such stone could be drilled and blasted to meet Town specifications. 25. The records and testimony relating to the 1978 Isle LaMotte Lease indicate that the Town owed VMC $770 dollars for the rubble removal carried out by Oscar La Bombard. According to the terms of the 1978 Isle LaMotte Lease, such rubble, when used for town projects was valued at $.50 per ton, thus approximately 1540 tons were removed. The records do not specify how many of those tons were removed from the Fisk Quarry and how many were removed from the Goodsell Quarry. The written records and oral testimony also do not establish whether any blasting had occurred. 26. A recent removal of loose stone occurred in 1993 when Eric Bauer removed a relatively small quantity of stone for use in the construction of his home which is located across the West Shore Road. 27. Additional quarry reports were submitted at the hearing. These are labeled Quarry Report C - 1951 and Quarry Report C - 1964. Such reports were not prefiled and their probative value is limited to a general summary of the volume of existing loose stone that was removed. 28. The Quarry Report C - 1951 suggests that during 1951 approximately 464 cubic yards of waste blocks were removed from the Fisk Quarry, sold to the Lane Construction Company, and used for rip-rap on state bridge construction. 29. The Quarry Report C - 1964 suggests that during 1964 several thousand tons of marble were removed from the Fisk Quarry for crushing into chips by the Shelburne Limestone Corporation. 30. At least two types of marble are available from the Fisk Quarry. These include Champlain Black and Radio Black. When being used as fill stone, rip-rap or for road and bank work, these types of marble are interchangeable with other more widely distributed types. 31. The presence of relatively large quantities of loose stone in the Fisk Quarry during the 1950's, 1960's and 1970's indicates that prior dimensional stone quarrying activity during the first half of the 1900's left a significant amount of waste or rubble stone. 32. CMC proposes to remove not only the physically "loose" stone (formerly defined as "existing loose stone"), but also those chunks of the quarry wall that obstruct the quarrying of dimension stone (formerly defined as "extraction of rubble stone"). 33. CMC proposes to remove not less than 2000 cubic yards of stone per year from the Fisk Quarry. Such stone would consist in part of existing loose stone and in part extracted rubble stone. CMC has not indicated how much of the stone would be loose stone that it would merely remove, and how much would be extracted rubble or waste stone which CMC would have to blast from the rock face or break off of the rock wall with excavating equipment. 34. Such "loose stone" is no longer present in the quarry in any significant quantity. 35. In order to operate the Fisk Quarry as proposed, CMC would necessarily be required to blast from the rock face or break off of the rock wall with excavating equipment. 36. With respect to the extraction of waste stone, CMC has presented no records that conclusively demonstrate the extent to which extraction has occurred historically, or if it occurred at all other than during two specific incidents. 37. The first such incident occurred in 1989 when an individual named Richard Hill extracted rubble stone with a steam shovel in the area that is currently proposed for rubble stone extraction. This Richard Hill incident resulted in the removal of waste stone from the Fisk Quarry. 38. The second incident occurred on August 8, 1995 when CMC began jack hammering in the Fisk Quarry. CMC continued its operation on August 15, 1995. The August 1995 activity was being conducted without an Act 250 permit. It resulted in a newly created pit in the quarry floor that measured 2 x 80 x 120 feet. The 1995 incident eventually gave rise to this proceeding and CMC's application to the District Commission. 39. CMC has not documented where it proposes to extract rubble stone, other than a vague statement that it will remove waste and rubble stone from the so-called "x layer," or "overburden." 40. CMC proposes to remove rubblestone, or waste stone, by a variety of techniques: a. Drilling holes to place dynamite charges, and then blasting the stone loose; b. Removing chunks of the quarry wall with excavating equipment; and c. Breaking stone separated from the quarry wall into smaller pieces using a hydraulic splitter or a "pick" attachment mounted on a backhoe. 41. The cutting of dimensional stone would create, as a byproduct, some quantity of waste or rubble stone. The amount of such waste would vary depending on the character and density of the quarry stone from which the dimensional stone blocks were taken, the method and skill with which the dimensional stone was removed, and other less definable factors. 42. It would be difficult if not impossible to determine which stone on the quarry floor was existing loose stone that pre-existed CMC's operation (if permitted), which resulted as a byproduct of the dimensional stone cutting activity, and which was actively quarried as waste stone. III. CONCLUSIONS OF LAW The Board will undertake the following three-step inquiry to resolve the issue: 1. Are the Proposed Removal and Extraction Activities development that pre-existed the enactment of Act 250? 2. If the Proposed Removal and Extraction Activities are a pre-existing development, have they been abandoned since the enactment of Act 250? 3. If the Proposed Removal and Extraction Activities have been ongoing since prior to the enactment of Act 250, does CMC's method and extent of removal and extraction constitute a substantial change from that development which has been ongoing? 1. Are the Proposed Removal and Extraction Activities development that pre-existed the enactment of Act 250? A pre-existing development is any development in existence on June 1, 1970. Environmental Board Rule ("EBR") 2(O). To meet this definition and therefore be entitled to the statutory exemption accorded pre-existing uses pursuant to 10 V.S.A. § 6081(b), CMC must demonstrate that the Proposed Removal and Extraction Activities were commenced prior to June 1, 1970 and that they had not been abandoned prior to that date. If the development had been commenced some time prior to June 1, 1970, it is part and parcel of qualifying for exemption as a pre-existing development to establish that the particular land use has not been abandoned. In re: U.S. Quarried Slate Products, Inc. and Scotch Hill Leasing Corp., Declaratory Ruling Request # 279 and Genier Slate Quarry, Declaratory Ruling Request # 283, July 30, 1993 ("U.S. Slate/Genier") at 15-16. The burden of proof to show that a development is exempt from Act 250 is on the person claiming the exemption. Re: Weston Island Ventures, Declaratory Ruling # 169 at 5 (June 3, 1985) citing Bluto v. Employment Security, 135 Vt. 205 (1977). CMC, therefore, bears the burden to show that the Proposed Removal and Extraction Activities were commenced prior to June 1, 1970 and that they were not abandoned prior to that date. CMC also has the burden of proof to show that operation of the Fisk Quarry had not been abandoned since the enactment of Act 250. Moreover, if it successfully demonstrates that either or both aspects of its proposed operation were a pre-existing development, it also carries the burden to demonstrate that the Proposed Removal and Extraction Activities do not effect a substantial change of the pre-existing development. Re: Weston Island Ventures. As set forth more fully below, the Board concludes that the Fisk Quarry was being operated, primarily for the purpose of loose stone removal, prior to June 1, 1970, and that although the removal activity was sporadic, it had not been abandoned prior to 1970. Although there is minimal evidence to support the conclusion that extraction activity was ongoing as of the enactment of Act 250, the Board declines to conclude that such activity had been abandoned prior to the enactment of Act 250. Thus, removal and extraction activity at the Fisk Quarry were development which pre-existed the enactment of Act 250. 2. If the Proposed Removal and Extraction Activities are a pre-existing development, have they been abandoned since the enactment of Act 250? In order to be entitled to the statutory exemption afforded to pre-existing developments, the party who is claiming the exemption must show that such a pre-existing development has not been abandoned since the enactment of Act 250 and that it should therefore retain its status as a pre-existing development. U.S. Slate/Genier. Even if the development pre-existed the enactment of Act 250, if the development is abandoned after that date, the pre-existing development ceases to exist. As set forth below, the Board concludes that extraction activity has been abandoned since the enactment of Act 250 because there has been almost no extraction activity in the last 26 years. The Board has previously addressed the issue of whether a pre-existing development has been abandoned and has concluded generally, that where a development was abandoned prior to the enactment of Act 250 it did not qualify for the exemption for pre-existing developments. The abandonment analysis outlined in U.S. Slate/Genier addressed the question of abandonment prior to the enactment of Act 250 such that the Board could determine whether the project would qualify as a pre-existing development. The abandonment analysis outlined therein, however, also applies to the question of whether a pre-existing development has been abandoned since the enactment of Act 250. U.S. Slate/Genier presented a similar factual setting to that presented in this case, although instead of marble, it involved slate quarrying operations. Therein, the Board found that the re-opening of a slate quarry after periods of prolonged inactivity rendered the alleged pre-existing development abandoned. U.S. Slate/Genier held: While the Board believes that industry cycles can be relevant in determining whether a project has been abandoned, the cycles and custom being argued in this case do not do justice to the legitimate expectations of property owners who reside nearby. Put simply, in 20 to 30 years, quarries can become filled with water and acquire other signs of abandonment, such as vegetation growth and the presence of rusted-out equipment. Moreover, this contention is not based on an industry custom of seasonal operation, such as with gravel pits or ski areas. Instead, the industry custom being argued here is cessation of operation for a period of time that is the equivalent of one to two generations. Such a period is too long to provide a basis for concluding that a project has not been abandoned. Id. at 17. The factors identified in U.S. Slate/Genier are among those which guide the Board's determination of whether CMC's Proposed Removal and Extraction Activities are a pre-existing development entitled to exemption. The abandonment analysis adopted in U.S. Slate/Genier is particularly instructive with respect to CMC's Proposed Extraction Activity. The Board concludes that while the removal of loose stone appears to have continued, albeit very sporadically, during the period June 1, 1970 to the present, CMC's Proposed Extraction Activity is a considerably different activity about which there is no credible evidence to support a conclusion that this activity has been ongoing. Adjoining neighbors testified consistently that there had only been only two incidents that involved either blasting, or extraction involving the type of equipment that would be used to conduct the Proposed Extraction Activity. These were isolated incidents amidst a period of operation that was limited nearly exclusively to the removal of loose stone. The absence of blasting and extraction involving heavy equipment has allowed vegetative and aquatic communitites to flourish, has allowed a quiet, residential neighborhood to develop in the area surrounding the Fisk Quarry, it has kept intact the rock walls which have been shown to encase rare fossils, and it has fostered the reasonable expectation among neighbors that extraction, blasting, and large scale excavating would not be occurring. The evidence shows that VMC made the Fisk Quarry available to the Town of Isle LaMotte on several occasions, and to other persons on an extremely limited basis. Moreover, the type of stone that was removed during these limited periods of operation was existing loose stone, such as that which comprised Billy Goat Hill. As discussed above, any extraction activites that were occurring as of the enactment of Act 250 in June of 1970 have been abandoned. Therefore, removal of loose stone would be the only basis upon which to afford CMC an exemption for a pre-existing development -- although two factors prevent the Board from affording even that limited exemption. First, there is no longer any significant quantity of existing loose stone in the Fisk Quarry. Second, the frequency of the historical extraction appears to have been, at its greatest, two or three incursions per decade. CMC's Proposed Removal and Extraction Activities stand in marked contrast to the extremely limited activity which was incident to VMC s operation of the Fisk Quarry since the enactment of Act 250 in 1970. When a project proposal potentially effects a change of whatever pre-existing development has been established, the Board determines whether the proposed change is substantial. If it is, then the pre-existing development, because of the substantial change, is no longer entitled to the statutory exemption. 3. If the removal of existing loose stone and/or the extraction of rubble stone have been ongoing since prior to the enactment of Act 250, do the Proposed Removal and Extraction Activities constitute a substantial change from that development which has been ongoing? The Board has previously concluded herein that the Proposed Extraction Activity has been abandoned since the enactment of Act 250. Thus, this section only addresses whether the Proposed Removal Activity would effect a substantial change to that activity which was found to pre-exist the enactment of Act 250. Without sufficient evidence to establish a prior removal rate, it cannot be determined whether future operation will constitute a substantial change. In re Tucker, Inc., 149 Vt. 551, 555 (1988). Thus, it is relevant in determining whether the Proposed Removal Activities are entitled to the exemption afforded pre-existing uses, to collect and analyze the data respecting historical rates. See In re Manosh Corp., 147 Vt. 367, 369 (1986). Accordingly, such data was specifically requested by the Chair in the Supplemental Prehearing Order which states in relevant part: CMC [shall] submit in its pre-filed testimony a clear statement of the proposed activity. Such statement shall include historical extraction rates and estimates of future extraction rates (including information on proposed volume, frequency and method of extraction), identification of the areas within the Fisk Quarry from which loose stone has been extracted, and the method by which CMC proposes to distinguish the existing loose stone from that created by the dimensional stone activity. The evidence submitted by CMC in this regard falls short of that requested by the Chair. Although not dispositive as to the issue of determining whether the proposed operation is a pre-existing development entitled to an exemption, the lack of evidence regarding matters that are impliedly only available to CMC and its predecessors in interest has hampered the Board's ability to establish historical extraction or removal rates with certainty. The levels of historical extraction or removal, once established, serve as the baseline against which the Board must determine whether the Proposed Removal Activities continue to be grand-fathered as a pre-existing development. EBR 2(A)(5) provides that a project is a development if any construction of improvements [will effect] a substantial change [to] a pre-existing development. Thus, the Board next determines whether the Proposed Removal Activities amount to a substantial change. The definition of substantial change defines the parameters of the statutory exemption afforded pre-existing uses. In re Manosh Corp., 147 Vt. 367, 369 (1986); see also, Vermont Brick & Block, Inc. v. Village of Essex Junction, 135 Vt. 481, 483 (1977). While extraction at or below historic rates is not a change in the development, In re Manosh Corp., supra at 370, extraction levels above the historic rates that are conclusively established by the party arguing for the exemption could be such a change. The Board has articulated a two-prong test to determine whether substantial change exists. 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 significant impact under one or more of the ten Act 250 criteria. Re: L.W. Haynes, Declaratory Ruling #192, Findings of Fact, Conclusions of Law, and Order at 7 (Sept. 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 such impacts. However, the impact that may result must be significant. Re: Robert and Barbara Barlow, Declaratory Ruling #234 at 11 (Sept. 20, 1991), affirmed, In re Barlow, 160 Vt. 513 (1993). The Board has previously noted that the addition of new equipment to a gravel extraction operation is the sort of alteration which, if accompanied by potential impacts under one of the ten criteria, is a basis for concluding that a substantial change has occurred. Re: Clifford's Loam and Gravel, Inc., Declaratory Ruling #90 (Nov. 6, 1978). Based on the evidence presented in this matter, the Board concludes that the type of equipment that would be required to effect the Proposed Removal and Extraction Activities is unlike that which was used during the pre-existing loose stone removal operation. No credible evidence supports the conclusion that blasting and drilling or extraction from the rock face with heavy machinery were components of the loose stone removal. The proposed changes in operation amount to a cognizable change in this regard. With respect to the rates of removal, CMC has not defined such rates with certainty. However, taking all of the available evidence, and assuming that the figures demonstrated in the available reports were primarily attributable to the Fisk, rather than the Goodsell Quarry, those removal rates, using very conservative estimates, support a finding that loose stone was extracted at a rate of no more than 15000 tons of stone during the 1970s; one incursion known as the Richard Hill incident in the 1980s during which an unspecified amount of rubble was extracted; and 200 tons, attributed to an erosion control project in North Hero, plus the amount removed by Eric Bauer, and the amount extracted over a period of 4 days by CMC, in the 1990s. CMC's current proposal, as represented by its president, is for not less than 2000 tons per year. The Board has previously held that an increase in extraction of 10% would amount to a substantial change if accompanied by potential impacts under the criteria set forth at 10 V.S.A. § 6086(a). 2000 tons per year would amount to 20000 tons in a decade. This figure is substantially more than 10% greater than the highest reasonable estimate for any previous decade of operation. The Board concludes that CMC has failed to meet its burden of proof regarding the measure of the loose stone removal and extraction activity at the Fisk Quarry since the enactment of Act 250. The Board further concludes that whatever level of activity had existed, the Proposed Removal and Extraction Activities, if allowed, would not merely maintain that level but, as outlined explicitly above, would represent a substantial change to the pre-existing development. CMC was apprised of its burden to demonstrate the extent of the historical operation with certainty by the Chair in the Supplemental Prehearing Order. The evidence shows that there have been several incidents in which loose stone was removed from the Fisk Quarry since the enactment of Act 250. This conclusion, however, is not sufficient to preclude the requiring of a permit for continued operation. In re Orzel, 145 Vt. 355 (1985). CMC was apprised of the type and extent of detailed information that it was required to submit for the Board to consider granting CMC an exemption for its operation of the Fisk Quarry as a pre-existing development. See page 11 supra. CMC has not submitted the type of evidence requested of it in the Chair's Supplemental Prehearing Order. There is no credible evidence to enable the Board to delineate the parameters of an exemption. When asked by a Board member what the highest annual extraction rate on record was, CMC's president could not provide a number. The available evidence merely suggests what the annual extraction rates might have been, and in certain cases loose stone removal is quantified for a given year. However, the source of the stone is not specified such that there is an assurance that the quantities of loose stone reported were taken from the Fisk Quarry rather than the Goodsell Quarry. Finally, even where specific amounts are established, these are represented in ways that further defy accurate quantification. For instance, a single report discusses alternatively the amount of cubic feet of stone removed, the amount of cubic yards removed, and the tonnage removed. CMC has not attempted to distill these numbers to a comprehensible annual extraction rate. Another obstacle to accurately quantifying the amount of stone removed is CMC's use of a measurement that is based on the number of truckloads removed. Such a measurement has been approximated at 20 tons per load, given today s equipment. There is no evidence in the record to suggest the tonnage per load during the period in which the measurements were recorded. CMC is charged with the burden of proving that its activity warrants an exemption, and this includes the establishment of historical extraction rates. The Board concludes that based on the lack of credible evidence regarding prior extraction rates, and the absence of specific reports as to the source of the rubble and loose stone removed, it can not reasonably conclude that the Proposed Removal and Extraction Activities are a pre-existing development which is entitled to an exemption from the requirement of securing an Act 250 permit. The Board concludes that even though it has estimated, very conservatively, the levels of loose stone removal which it derived from the available evidence, the Board need not on its own initiative attempt to support a proposition that CMC was asked to prove. It would be unnecessary to speculate as to the limits of the grand-fathered activity because the Proposed Removal and Extraction Activities, if carried out, would amount to an increase well above 10% greater than that removal which the Board estimates to have occurred historically. In addition to the increases in extraction rates and the changes in equipment, the surrounding land use has changed considerably during the period from the early 1920's, when the Fisk Quarry was most active, to the present. The Board has previously held that subsequent changes to a neighborhood affect the Board's findings of potential impacts. Thus, the Board concluded: The impacts from this project will be significant not only because of the major increase in the proposed rates over historical rates, but also because of the long period of time that has elapsed (with the one excepted period in 1978) since there was activity at this site. During the long period of inactivity from at least 1964 to 1978, a change in residential land use has occurred on the neighboring properties to the west. This change makes the impacts from the resumption of this pit operation all the more significant since the access road is now a residential street. In re Orzel, Declaratory Ruling # 174 (October 2, 1986) at p.6. The Board finds that under CMC's proposal, at least 100 truck loads would be exiting the quarry each year. This added volume of truck traffic in what has become a residential neighborhood could be expected to increase noise, dust, and traffic flow. The dirt road upon which these trucks would travel could be expected to require additional maintenance due to the size and weight of machinery brought in for removal activity, as well as carrying out the outgoing loads of stone. Within the Fisk Quarry, the vegetation and aquatic organisms could be expected to be impacted. The noise of the operation could affect neighboring residents, and a variety of impacts under the various other Act 250 criteria could be expected to occur. Accordingly, the Board concludes that the proposed operation would effect a cognizable change and that the potential impacts of such change would be significant. CMC's Proposed Removal and Extraction Activities would represent a substantial change to the pre-existing development. As such, the Proposed Removal and Extraction Activities do not qualify for an exemption from the requirement to obtain an Act 250 permit. An additional concern in this case involves the question of whether CMC may reasonably maintain that its project is severable into a dimensional stone cutting operation and an existing loose stone removal operation. The Board concludes that based on the evidence in this matter, an exemption for the continued removal of loose stone, even if it were not a substantial change, would not have been warranted where the creation of such loose stone is inextricably linked to the quarrying of dimensional stone. This linkage arises in two contexts. Foremost is that in order to quarry the underlying dimensional stone, CMC must first remove the overburden or x layer which is estimated at 20 feet in depth. Thus, if a permit is granted for the quarrying of dimensional stone, such permit would necessarily address the issue of what happens to the overlying rubble or waste stone that constitutes the x layer. The Board's secondary concern is that it would be nearly impossible to differentiate between the existing stone, of which there appears to be very little remaining, and that which would be created by the dimensional stone activity. Accordingly, the Board has no basis upon which to afford CMC's Proposed Extraction Activities the status of a pre-existing development because, as explained above, blasting, active quarrying, and extraction from the rock face has been abandoned since the enactment of Act 250. The Board further finds that with respect to the removal of loose stone, CMC's Proposed Removal Activities would constitute a substantial change to the historical method and level of activity. Consequently, the Board declines to grant CMC an exemption from the requirement that its development be subject to Act 250 review. III. ORDER 1. An Act 250 permit is required for CMC's proposed removal of loose stone and extraction of rubble stone from the Fisk Quarry. 2. The Board advises CMC to file an Act 250 permit application for its proposed operation with the District # 6 Environmental Commission for consideration in conjunction with its pending application regarding the quarrying of dimensional stone. Dated at Montpelier, Vermont on this 2nd day of October, 1996. ENVIRONMENTAL BOARD /s/John T. Ewing John T. Ewing Arthur Gibb Becky Nawrath Marcy Harding John Farmer William Martinez ------------------------------------------------------------------------- Footnotes FN1. The Vermont Supreme Court, in a factually similar proceeding, has held that a petitioner's arguably inconsistent action of simultaneously applying for an Act 250 permit, while challenging Act 250 jurisdiction over the project was an appropriate method to obtain a definitive ruling on Act 250 jurisdiction while remaining in business. In re Barlow, 160 Vt. 513, 520 (1993).