OMYA's Truck Count Deemed No Trade Secret

By Bruce Edwards

September 9, 1997

The coordinator for the District 1 Environmental

Commission is standing by his position that truck

traffic information related to OMYA, Inc.'s proposed

plant expansion in Florence is not a trade secret and

should be open to the public.

District Coordinator William T. Burke's decision

sets the stage for a possible appeal by OMYA to the

state Environmental Board in Montpelier. In the

meantime, OMYA's Act 250 permit application for a $6.8

million expansion of its calcium carbonate plant

remains on hold.

Burke last month requested that OMYA submit an

affidavit with the exact number of daily truck trips

to the Florence plant from each of the company's

quarries over a 31-day period.

Burke also requested that the affidavit include

the number of trucks that leave OMYA's plant with

finished product as well as the number of turning

movements at the intersection of Route 7 and the

Florence Truck Route.

The issue of the company's truck traffic along

Route 7 is also the subject of a separate Act 250

hearing in Middlebury. In that case, the company

wants to expand its Middlebury quarry and double the

number of truck trips between the quarry and its

Florence plant to the south.

OMYA responded to Burke through its attorney,

Edward V. Schwiebert, that it would provide the

information on the condition the commission sign a

confidentiality agreement.

That request was denied by Burke who told OMYA in

a letter that information on the number of trucks

coming and going from the plant could hardly be

considered a trade secret as the company asserted.

In asking Burke to reconsider his decision,

Schwiebert argued that "shipment information may be

used to determine sales volume; turning movements may

be used to determine market locus; information

supplied at the outset may lead to further, more

detailed requests (for example, to the type of

transportation containers utilized to transport

different types of product.)"

Schwiebert cited state law that recognizes trade

secrets as any information which "gives its user or

owner an opportunity to obtain business advantage over

competitors who do not know it or use it."

He also cited the 1923 Vermont Supreme Court case

of McClary versus Hubbard. The court found that if a

company did not take proper steps to protect the

confidentiality of trade secret information, that same

information could not be protected or held

confidential at a later date.

But in a letter sent to OMYA last week, Burke

refused to budge.

"I note in passing that two diligent observers

stationed at the Florence Truck Route and near the

railroad tracks could count trucks and count rail cars

(brightly colored with the OMYA corporate logo) and

compile the same or largely the same information which

you assert is a trade secret."

He continued that "anyone determined to obtain

such information could do a whole lot better than

finding out whether OMYA traffic turns north or south.

The person could follow the truck to find out exactly

where it goes."

In a telephone interview Monday, Schwiebert said

if someone wanted to take the time to monitor the

company's truck traffic for a 31-day period, they

could do so. But he said the company would only

provide that information from its records if the

commission agreed to keep the information

confidential. He argued that to make the information

available to the public could put OMYA at a

competitive disadvantage.

"Someone who knew particular information

regarding the number of trucks, their turning

movements, the type of trucks could determine

information from that," Schwiebert said.

Pressing on what kind of information could be

derived from truck counts, Schwiebert said

"competitively sensitive information" as stated in his

letter to Burke.

Asked whether the company would appeal the

decision to the Environmental Board, Schwiebert said

he had not had the opportunity to discuss the matter

with company officials.

According to Burke, there is only one other case

in the 28-year history of Act 250 where an applicant

claimed proprietary information. In that case the

developer of a proposed Sherman Hollow Golf Course

claimed that fertilizer ingredients were a trade


The Environmental Board ruled in 1992 that trade

secrets could be withheld from the public, but not

from regulators who require the information to render

a decision.

However, Burke reasserted in his most recent

letter to Schwiebert that traffic counts do not fall

under the trade secrets exemption.

"I am not requesting disclosure of your machines

nor the chemical formula of your products. I am,

instead, asking for your contribution to the traffic

on Route 7."

Burke reminded Schwiebert that it is the state's

policy "to provide for free and open examination of

records consistent with ... the Vermont Constitution"

and the provisions of the Access to Public Records