Rutland Herald

Friday, June 25, 1999

Company Continues Fight For Expanded Truck Traffic

By Bruce Edwards

Herald Staff

OMYA Inc. has filed a federal lawsuit against the

State of Vermont for claiming its constitutional

rights were violated when the state limited the

company's ability to increase the number of trucks

hauling marble ore from its Middlebury quarry.

OMYA alleges in its lawsuit filed Wednesday in

U.S. District Court in Burlington that the state

Environmental Board violated the "supremacy clause,

the commerce clause, the equal protection clause, and

the due process clause, of the U.S. Constitution.

John Hasen, the Environmental Board's generally

counsel, declined comment Thursday, saying he had not

yet received a copy of the complaint.

The board last month denied OMYA's appeal of an

Act 250 permit that limited the number of trucks

hauling marble south along Route 7 from its Middlebury

quarry to its calcium carbonate plant in the Florence

section of Pittsford to 115 roundtrips a day. The

company had sought to double the number of roundtrips

from the current 85 trips a day to 170.

In its ruling, however, the board found that

doubling the number of OMYA trucks through Brandon

would "unduly exacerbate the current situation by

tipping the delicate balance in Brandon to favor use

of U.S. Route 7 at the expense of the historic and

aesthetic character of Brandon village."

In its 12-page complaint, OMYA made the following

arguments that in limiting the company's use of Route

7, the Environmental Board had violated the company's

rights under the U.S. Constitution:

Supremacy clause - Federal law and not state law

takes precedence over transportation issues in respect

to motor carriers.

Commerce clause - Restricting OMYA's use of Route

7 interferes with its ability to conduct interstate

commerce by restricting the amount of calcium

carbonate that it can process and sell to its

customers in the U.S. and Canada. The company also

argued that limiting its truck trips to 115 per day

"constitutes a direct restriction upon OMYA's right to

use a portion of the federal highway system in the

conduct of, and in a manner affecting, interstate


Equal protection clause - The company noted that

no other tractor-trailer trucks on Route 7 are

restricted in the same manner by the state.

Due process clause - Restricting its use of a

public highway "infringes upon OMYA's right to use

public facilities, engage in commerce, and pursue its

business and occupation ... ."

OMYA's attorneys also argued that highway

improvements are the state's responsibility. They

said while the state has been aware of the problems

identified in the board's decision, the state has

"taken no action to alleviate the problems ... ."

OMYA's battle to expand its calcium carbonate

operations in Vermont began two years ago when it

applied for an Act 250 permit to expand its Middlebury

quarry. The expansion included an increase in the

number of truck trips from 85 to 170 a day.

In November 1997, the company received a permit

to build a direct access road to Route 7 in

Middlebury. But in a separate decision on July 8,

1998, the District 9 Environmental Commission limited

the increase in truck traffic to 113 roundtrips per

day - well short of the number the company had sought

in order to meet increased customer demand.

In its decision, the commission noted that any

further increase in OMYA trucks along Route 7 through

Brandon would have an adverse impact on the downtown.

The company appealed the decision to the Environmental

Board, which issued its ruling last month. The board

granted OMYA 115 trips per day - only two more trips

than allowed under the original permit.

In a companion case, OMYA's plans to expand its

Florence plant are also on hold. Brandon innkeepers,

who have been at the forefront of opposing an increase

in OMYA trucks, are also opposing the plant expansion.

An Act 250 permit that granted a

10,000-square-foot addition to the plant was appealed

late last year by the innkeepers. That appeal is

still pending before the Environmental Board.

The innkeepers have argued that an increase in

trucks hauling OMYA's marble ore along Route 7 would

further damage their business. They claim the trucks

cause undue air pollution, unreasonable traffic

congestion, unsafe highway conditions and have an

adverse impact on the town's historic buildings and


Frustrated in its efforts to expand its business,

OMYA threatened to pull the plug on a four-year $160

million investment in its Vermont operation unless the

necessary permits were received by August of last


The company, which employs 200 people, is

considered by state and local officials to be an

important component of the local economy.

When the Environmental Board ruling went against

the company last month, Governor Howard B. Dean said

he was "very, very disappointed."