Rutland Herald

State allows OMYA to keep 'trade secret'

February 21, 2001
By BRUCE EDWARDS Herald Staff

OMYA Inc. has persuaded the state that the use of biocides in the manufacture of its calcium carbonate product is a "trade secret" and should be kept from the public.

The state Agriculture Department this month granted OMYA's request to keep the type and amount of biocides confidential, agreeing that disclosure could jeopardize the company's competitive advantage. Biocides, which are used to kill bacteria in the slurry product, are classified as a pesticide.

In a Jan. 30 letter to the state Agriculture Department, OMYA attorney Edward V. Schwiebert argued that the information should be protected as a trade secret based on state law that grants private companies a "right to privacy in … economic pursuits."

Schwiebert added that the company would continue to provide biocide data to the state but on a confidential basis.

OMYA's contention that their biocide use is a trade secret comes a few months after a recent chemical spill at the plant. Up until now, the amount and type of biocides OMYA used were available to the public.

In November, the company spilled 4,500 gallons of the pesticide when a hose broke inside the plant. A report prepared by the company and filed with the state said the spill was contained to the plant's three on-site holding ponds. The state is treating the spill as a "minor environmental threat."

The calcium carbonate plant in Florence is the largest user of pesticides in Vermont. According to the most recent data available, OMYA used 457,000 pounds of biocides in 1999.

The state granted OMYA's confidentiality request after the company made a strong presentation that the disclosure could harm their business, said Michael O. Duane, an assistant attorney general with the Agriculture Department.

Duane said Tuesday the department found that "the actual number, quantity, of pesticide was a trade secret because it disclosed a formula that they use in their production process."

He said information filed with the state was considered open to the public unless a case could be made that the information should be withheld.

When OMYA approached the department, Duane said, he told the company it would have to prove the information should be treated as a trade secret because, "Vermont law presumes that such public filings are considered to be a public record."

"We put the burden back on them to show us convincingly why this should be a trade secret under Vermont law. And we believe they met their burden," Duane said.

He added the decision not only covered OMYA's current and future use of pesticides but also all past records, which are now also closed to the public.

Annette Smith, executive director of Vermonters for a Clean Environment, called the state's decision "outrageous" and "incomprehensible."

"Their use of pesticides is a public health issue and the people have a right to know, not only what's being used, but they have a right to know the state is … making sure that OMYA complies with the law," Smith said.

Based on data she obtained from the state, Smith said that between 1995 and 1999, Rutland County accounted for 61 percent of all pesticides used in the state.

The plant's use of biocides reached a high of 810,000 pounds in 1998 but dropped to 457,000 pounds in 1999, Smith said.