Rutland Herald
Court hears OMYA appeal
March 4, 2002
By BRUCE EDWARDS Herald Staff
A four-year-old Act 250 permit that restricted OMYA's truck traffic along Route 7 is now in the hands of the 2nd U.S. Circuit Court of Appeals.
OMYA Inc. argued before the appeals court in New York last month that placing limits on the number of trucks that could use a federal highway violated its rights under the supremacy and commerce clauses of the U.S. Constitution.
"Federal law prohibits states from enacting a law or other provision having the force and effect of law related to the price, route or service of motor carriers, and OMYA believes that law pre-empts the Environmental Board's limit of the number of trucks that can travel on U.S. Route 7," OMYA Industries President James Reddy said in a statement.
However, the state's position is that it was within its right to limit truck traffic and that Act 250 did not violate federal law or infringe on the company's constitutional rights.
Assistant Vermont Attorney General Bridget Asay said because OMYA's Act 250 permit condition was related to the operation of its Middlebury quarry, it did not violate the federal law that deals with motor carriers.
Asay also argued that the permit condition did not violate the commerce clause of the Constitution because "it regulated activity within Vermont and did not touch upon interstate commerce."
This is OMYA's fourth attempt to overturn what it considers an onerous permit condition.
The District 9 Environmental Commission issued the company an Act 250 permit in 1998 that limited the number of trucks that could haul marble ore from its Middlebury quarry along Route 7 through downtown Brandon to its calcium carbonate processing plant in Pittsford.
The permit allowed OMYA 113 round trips a day; the company was seeking approval to double the number from 85 to 170 trips a day.
The company then appealed to the state Environmental Board. Although the board rejected the company's request to double its truck traffic, the board did increase the number of round trips by two to 115 a day.
Still not satisfied, OMYA launched a legal attack on two fronts.
It appealed the Environmental Board's decision to the state Supreme Court and filed a lawsuit against the state in federal court. In March 2000, the state Supreme Court upheld the permit condition.
Last year, U.S. District Court Judge William Sessions also rejected the company's arguments, setting the stage for the appeal before the three-judge appeals court.
In a related matter, the state Environmental Board recently dismissed without prejudice a motion to revoke one of OMYA's Act 250 permits.
Last year, the Conservation Law Foundation asked the board to revoke the permit when OMYA allegedly failed to make a good faith effort to move forward on a rail alternative designed to alleviate truck traffic along Route 7 between its Middlebury quarry and its Florence plant.
In December, the CLF asked the board to dismiss its motion to revoke the permit, citing the company's new willingness to cooperate on the rail project.
At the same time, CLF wanted to preserve its right to seek revocation of the permit at a later date, if it became necessary.
OMYA, however, asked the board to dismiss CLF's motion with prejudice, meaning that CLF would not be able to re-file the motion in the future. The company argued that CLF lacked standing to seek revocation of the permit.
In dismissing CLF's motion without prejudice, the board said that OMYA could raise the issue of CLF's standing again should it file a new revocation petition in the future.
Contact Bruce Edwards at bruce.edwards@rutlandherald.com