Act 250 Appeal Filed By OMYA
September 9, 1998

Herald Staff
OMYA Inc. has filed an appeal with the state Environmental Board challenging an Act 250 permit that severely limits the company 5 ability to expand its calcium carbonate operations in Rutland County.
Filing a separate appeal supporting OMYA's position was the town of Pittsford, which is heavily dependent on the company as the town's major employer and taxpayer.
OMYA filed its appeal with the Environmental Board last week, challenging an Act~250 permit issued in July that restricted the ability of the company to ship marble ore along Route 7 from its expanded Middlebury quarry to its plant in the Florence section of Pittsford.
The permit issued by the District 9 Environmental Commission in July restricted the number of OMYA trucks to 113 roundtrips a day - far below the 170 roundtrips the company requested.
The commission restricted the number of trucks based on the impact the increased traffic would have on the town of Brandon, which is between Middlebury and Pittsford.
In its seven-page appeal, however, OMYA challenged the permit conditions on several fronts.
The company said the District 9 Environmental Commission erred when it placed limits on the company's truck traffic on Route 7, arguing that the commission "had no authority to impose such limits in the first instance,"
In restricting its truck traffic, the company argued the commission violated the Commerce clause of the 14th Amendment to the Constitution that guarantees equal protection.
"Neither the U.S. Constitution nor federal law, which pre-empts state action that would purport to limit the use of public highways for the transportation of goods in interstate commerce, permit the imposition of such limits on the facts of this proceeding," OMYA lawyer Edward Van Schwiebert wrote in his appeal.
The company also challenged the commission's authority to render a decision that involves traffic and aesthetic impacts in Brandon a town that OMYA's lawyer argued was outside of the commission's area of jurisdiction.
The company asserted that the local commission's authority was limited to Middlebury (where the company operates its quarry). Therefore, OMYA said the commission had no authority to consider the impact or restrict truck traffic through Brandon, which the company said lies within the purview of the District 1 Environmental Commission.
OMYA also found fault with the permit on other grounds including:
U That improvements to Route 7 are the responsibility of government not a private entity.
U That the commission erred when it found the project would have an adverse affect on Brandon.
U That it disagreed with the conclusion that the company had not taken adequate steps to mitigate the project on its surroundings.
The company also objected to the granting of party status to several individuals and government entities.
Pittsford's appeal mirrored the company's arguments. But the town also challenged the permit on the grounds that placing permit conditions limiting the use of Route 7, placed an undue impact on the ability of the Town of Pittsford to economically expand, implement the town plan with respect to industrial development and impede its ability to generate tax revenue to provide necessary municipal and educational services."
Pittsford Select Board Chairwoman Margaret Flory said Tuesday that the decision to appeal went beyond the issue of OMYA’s expansion. Flory said if the commission's restrictions on traffic along Route 7 are allowed to stand, it would stifle any additional industrial development in the town.
"What that seems to say to us is that if it's reached that limit then no more business can be added, if in fact it's going to add trucks through downtown Brandon," Flory said. "We feel that is a very dangerous position."
She said she was in agreement with Brandon's concerns about the condition of Route 7. She said, however, that as a U.S. highway it's a major artery designed to transport goods and people. Flory laid the blame for the lack of highway improvements over the years with the state.