Rutland Herald

OMYA loses truck appeal

April 25, 2002

OMYA Inc. lost another legal round Thursday in its 4-year-old battle to overturn an Act 250 permit condition that the company says places onerous and unconstitutional restrictions on its business.

The 2nd U.S. Circuit Court of Ap-peals upheld a lower court ruling that found the state was with-in its rights when it issued an Act 250 permit that placed limits on the number of trucks hauling OMYA’s marble ore on U.S. Route 7.

The decision by the 2nd Circuit in New York rejected OMYA’s arguments that restricting the company’s trucking operations violated the commerce and supremacy clauses of the U.S. Constitution.

It was the third time OMYA had gone to court to overturn a state Environmental Board decision that limited the daily number of trucks that haul marble ore from the company’s Mid-dlebury quarry along Route 7 to its calcium carbonate processing plant in Florence.

In its summary order, the appeals court found that OMYA failed to prove that “…either Act 250 or the permit restriction specifically discriminates … against interstate commerce… .”

The court went on to state that simply because the company was burdened by the restrictions was not a sufficient reason “to trigger heightened” review of the commerce clause.

The three-judge panel wrote that “Act 250 does not have a disparate effect on interstate commerce” and that even if such a burden existed, it was outweighed by the local benefits.

“In this case, the permit restriction significantly enhances aesthetic and historic preservation goals, and helps reduce traffic congestion. Any marginal burden imposed on interstate commerce is unquestionably not ‘clearly excessive in relation’ to these benefits,” the court wrote.

The court also rejected OMYA’s argument that its rights were violated under the supremacy clause. OMYA claimed that the federal government has jurisdiction over motor carriers and that the state has no authority to impose economic restrictions.

Again, the court disagreed, saying the restriction seeks “to achieve non-economic goals.”

“Act 250 does not speak directly to prices, routes, or services of motor carriers, and is a land use statute intended ‘to protect Vermont’s environmental resources with an eye towards … preserving lands, when possible, that have special values to the public,’ ” the court said in its six-page decision.

OMYA’s legal fight to overturn limits on its trucking operations began in 1998 when two Brandon inn owners objected to OMYA’s plan to expand its business and along with it a doubling of truck traffic from 85 to 170 roundtrips a day. The trucks, operated by L.F. Carter Inc., travel along Route 7 through Brandon on the their way from Middlebury to Florence and back.

During Act 250 hearings, the inn owners complained that an increase in OMYA truck traffic would harm the aesthetic and historical nature of downtown Brandon.

When the District 9 Environmental Commission issued an Act 250 permit for the project, it limited the number of trucks to 113 roundtrips a day — far less than what the company had sought.

OMYA appealed the decision to the Environmental Board, which upheld the district commission’s decision. In its ruling, the board increased the number of roundtrips to 115 a day.

The company subsequently lost companion appeals to the Vermont Supreme Court and U.S. District Court in Burlington.

Brandon Town Manager Michael Balch called the court’s decision “a pretty unfortunate situation.” Balch said it has been the position of the Select Board that OMYA should be treated like any other company that uses Route 7.

“Any other company, any Canadian company, can put all the trucks they want over it,” said Balch, who noted that 35 Brandon residents are employed either directly or indirectly by OMYA.

OMYA Executive Vice President James Reddy was out of town Thursday and could not be reached for comment on a possible appeal to the U.S. Supreme Court.

A message left for the owners of the Brandon Inn was not immediately returned Thursday. The Lilac Inn has changed ownership since the fight over truck limits began.

OMYA was represented Rutland lawyer Edward V. Schwiebert. The state was represented by Assistant Attorney General Rebecca Ellis.

Contact Bruce Edwards at