Rutland Herald

OMYA asks court to remove Route 7 restrictions

March 16, 2000
By DIANE DERBY Staff Writer

SOUTH ROYALTON - OMYA Inc. took its appeal to the Vermont Supreme Court on Wednesday, asking the five justices to throw out the state Environmental Board's limit on the number of trucks trips the company can make each day hauling marble between Middlebury and Florence.

Lawyers for the company have challenged the Environmental Board's actions on several legal grounds, and have also filed a lawsuit in U.S. District Court in Burlington that is now pending.

In a court session held at Vermont Law School, OMYA lawyer Edward Schwiebert argued that his client was being unfairly singled out by the limitations imposed by the board.

In granting OMYA's Act 250 permit, the board cited traffic and aesthetic concerns in its decision to hold OMYA to 115 round-trips per day on Route 7, which connects the Middlebury quarry to the processing plant to the south.

"Only OMYA … has been limited and has been constrained in its use of that federal highway," Schwiebert argued.

Telling the court that OMYA is currently operating at its maximum allowed capacity, he added, "We cannot run 116 trucks without violating that permit."

The company claims that the restrictions violate Vermont's Equal Protection clause, and the company is challenging the state's authority to limit traffic on the federal highway.

OMYA also argues that the limitation will not provide the "cure" that the board is seeking to alleviate traffic in and around Brandon, which lies between the two sites.

Justice John A. Dooley III questioned Schwiebert about whether OMYA was simply trying to bring the legal case to a head without exploring other alternatives, but Schwiebert said the alternatives simply don't exist.

"OMYA has been exploring alternatives for the better part of two decades," he said.

He told the court that the state has not come through on its promise that a bypass would be built around Brandon to alleviate traffic congestion. Other alternatives, including a proposed rail spur, have simply proven too expensive, he argued.

The only existing alternative to Route 7, he said, would be a network of dirt roads linking the two sites.

According to court testimony and submissions for the Act 250 review, OMYA generates about 25 percent of the truck traffic on that stretch of Route 7. But citing previous case law, Schwiebert argued that OMYA had as much right to uninhibited use of the highway as anyone else, regardless of how much traffic it contributes.

Schwiebert said the issue came down to which agency within state government had the right to set transportation policy, and he argued that the planning needs of communities should be addressed on a broader basis than the Act 250 permitting process allows for.

"Of course, you are not asking this court to set transportation policy, are you?" Chief Justice Jeffrey Amestoy asked.
Schwiebert responded that the matter could best be worked out between the Legislature and the state Agency of Transportation. As an example, he cited the court's "Baker" decision, which sent the issue of same-sex marriage to the Legislature to decide.

Assistant Attorney General Ron Shems said the state considers OMYA a valued company, but what the company seeks to achieve - better roads and transportation networks - cannot be awarded by the courts.

The Legislature, Shems argued, has mandated that the Environmental Board address the impacts of traffic created by companies such as OMYA, "and that is exactly what the board did here."

"The board's actions here are eminently reasonable," Shems told the court, noting that limits on traffic patterns have been affirmed in previous court decisions.

Shems also challenged Schwiebert's claim that OMYA had seriously explored all other alternatives. Drawing from the language used by the board, Shems told the court that OMYA "prefers Route 7 because it is most direct."

Attorney James Carroll, representing the town of Brandon, also addressed the court in support of OMYA. He said the town's Select Board did not agree with the restrictions, even through they were aimed at mitigating traffic problems in the town.

He said the town felt strongly that such issues should not be handled on a "case-by-case, piecemeal basis."