OMYA's Truck Count Deemed No Trade Secret
By Bruce Edwards
September 9, 1997
The coordinator for the District 1 Environmental
Commission is standing by his position that truck
traffic information related to OMYA, Inc.'s proposed
plant expansion in Florence is not a trade secret and
should be open to the public.
District Coordinator William T. Burke's decision
sets the stage for a possible appeal by OMYA to the
state Environmental Board in Montpelier. In the
meantime, OMYA's Act 250 permit application for a $6.8
million expansion of its calcium carbonate plant
remains on hold.
Burke last month requested that OMYA submit an
affidavit with the exact number of daily truck trips
to the Florence plant from each of the company's
quarries over a 31-day period.
Burke also requested that the affidavit include
the number of trucks that leave OMYA's plant with
finished product as well as the number of turning
movements at the intersection of Route 7 and the
Florence Truck Route.
The issue of the company's truck traffic along
Route 7 is also the subject of a separate Act 250
hearing in Middlebury. In that case, the company
wants to expand its Middlebury quarry and double the
number of truck trips between the quarry and its
Florence plant to the south.
OMYA responded to Burke through its attorney,
Edward V. Schwiebert, that it would provide the
information on the condition the commission sign a
That request was denied by Burke who told OMYA in
a letter that information on the number of trucks
coming and going from the plant could hardly be
considered a trade secret as the company asserted.
In asking Burke to reconsider his decision,
Schwiebert argued that "shipment information may be
used to determine sales volume; turning movements may
be used to determine market locus; information
supplied at the outset may lead to further, more
detailed requests (for example, to the type of
transportation containers utilized to transport
different types of product.)"
Schwiebert cited state law that recognizes trade
secrets as any information which "gives its user or
owner an opportunity to obtain business advantage over
competitors who do not know it or use it."
He also cited the 1923 Vermont Supreme Court case
of McClary versus Hubbard. The court found that if a
company did not take proper steps to protect the
confidentiality of trade secret information, that same
information could not be protected or held
confidential at a later date.
But in a letter sent to OMYA last week, Burke
refused to budge.
"I note in passing that two diligent observers
stationed at the Florence Truck Route and near the
railroad tracks could count trucks and count rail cars
(brightly colored with the OMYA corporate logo) and
compile the same or largely the same information which
you assert is a trade secret."
He continued that "anyone determined to obtain
such information could do a whole lot better than
finding out whether OMYA traffic turns north or south.
The person could follow the truck to find out exactly
where it goes."
In a telephone interview Monday, Schwiebert said
if someone wanted to take the time to monitor the
company's truck traffic for a 31-day period, they
could do so. But he said the company would only
provide that information from its records if the
commission agreed to keep the information
confidential. He argued that to make the information
available to the public could put OMYA at a
"Someone who knew particular information
regarding the number of trucks, their turning
movements, the type of trucks could determine
information from that," Schwiebert said.
Pressing on what kind of information could be
derived from truck counts, Schwiebert said
"competitively sensitive information" as stated in his
letter to Burke.
Asked whether the company would appeal the
decision to the Environmental Board, Schwiebert said
he had not had the opportunity to discuss the matter
with company officials.
According to Burke, there is only one other case
in the 28-year history of Act 250 where an applicant
claimed proprietary information. In that case the
developer of a proposed Sherman Hollow Golf Course
claimed that fertilizer ingredients were a trade
The Environmental Board ruled in 1992 that trade
secrets could be withheld from the public, but not
from regulators who require the information to render
However, Burke reasserted in his most recent
letter to Schwiebert that traffic counts do not fall
under the trade secrets exemption.
"I am not requesting disclosure of your machines
nor the chemical formula of your products. I am,
instead, asking for your contribution to the traffic
on Route 7."
Burke reminded Schwiebert that it is the state's
policy "to provide for free and open examination of
records consistent with ... the Vermont Constitution"
and the provisions of the Access to Public Records