Lucas attorney requests action on proposed biomass plant
January 06, 2010
Lucas Oil owner Forrest Lucas, who has ties to the area, including family who own property adjacent to the site of a proposed biomass electricity plant near Milltown, sent an attorney to the Crawford County Board of Commissioners meeting last Tuesday morning in English to learn where things stand.
Rabeh Soofi, of the Indianapolis law firm Ice Miller LLP, said her office has gotten involved "because it has come to our attention ... that there are quite a few members of Crawford County that are not very happy" about the proposed plant and have had difficulty getting the commissioners to vote on two ordinances proposed by concerned landowners that would regulate such facilities.
Even without zoning laws, the county "isn't powerless to act," Soofi told the commissioners. "There appear to be pages and pages of resolutions and ordinances governing everything from trash and debris, erosion, sediment, septics."
The most interesting one, she said, is a regulation preventing smoking in the courthouse because of health concerns.
"Now, there's multi-million-dollar companies that don't believe that smoking causes cancer and that cigarettes are just fine, but at some point somebody came to this commission with a proposal and this commission ruled and (enacted) an ordinance," Soofi said.
Concerns regarding the proposed biomass plant may be treated the same, she said.
"If there's a concern by constituents, all they have is to bring it to your attention, and all they can do is ask for you to consider it and consider whether enacting an ordinance or resolution is appropriate," Soofi said.
"Your options at that point are you vote yes, you vote no or you vote to abstain," she said. " ... If the answer is no, that's fine, but then, at that point, these nice people are empowered to go to the courts and say that their commissioners are not moving as they wish and ... seek the relief that they want."
Soofi, in representing Lucas, said she would like to work with the county's attorney, John E. Colin, to determine how, "according to Crawford County rules, Milltown rules," to bring the ordinances forward for a vote.
In addition, Soofi said, she hopes to get the Indiana Utility Regulatory Commission and Office of Consumer Counselor involved, as well as establish direct communication with Liberty Green Renewables LLC, the company wanting to construct the facility.
"There seems to be a disconnect between what they seem to think they need to be doing to build a power plant in the middle of residential property and what the law seems to suggest they need to be doing," she said.
Her job, Soofi said, is to do a "very careful and very thorough investigation" of the process that must be followed to build a power plant.
"We just want to make sure this company is doing everything it's supposed to be doing and dotting all of its i's and crossing its t's because the nice people of Crawford County, if they have a concern about their health, deserve to be heard," she said.
Larry Bye, president of the board of commissioners and in whose district the proposed site is located, said residents have been given several opportunities to voice their concerns.
"You've not attended any meetings," he told Soofi. "I don't know how anybody can say they've not been heard. We've listened to this for 12 months now."
"This is not meant to upset anybody," Soofi responded, "but my concern is, it's not just not hearing somebody; it's about, as a represented elected official, the concept of a hearing is having something come before you, offering people the opportunity for comment and then making a decision on it.
"Now, I haven't seen from your agendas that this issue has been set for vote by this group of three."
Bye said the commissioners haven't brought the ordinances up for vote based on legal counsel.
"We have hired Barnes & Thornburg of Indianapolis to review them, and they have advised us, at this point in time, since Crawford County has no zoning, we should not act on those ordinances at this time," he said.
District 3 Commissioner Jim Schultz said that it is his understanding that the commissioners are not required to formally act on every ordinance that is brought to their attention. He asked Colin if that is correct.
Colin answered that while he understands Soofi's desire to have action so that a possible appeal can be made through the courts, Schultz is accurate.
"Merely because someone suggests to take up an ordinance doesn't necessarily mean you have to do it," he said.
Besides seeking advice from Barnes & Thornburg, Bye said, the commissioners have given him the authority to sign a letter to the Indiana Department of Environmental Management requesting a full environmental impact study. In addition, he noted that IDEM has scheduled a public hearing regarding LGR's application for an air permit on Wednesday, Jan. 13, at 5:30 p.m. at the Crawford County 4-H Community Park south of Marengo.
Soofi encouraged the commissioners to consider using this situation as an opportunity to address concerns about the county's lack of zoning laws.
"We've been advised by Barnes & Thornburg — they're a reputable firm just as yourself — we cannot go back and implement laws at that point in time, restrict (LGR) once they've already announced they're coming in. That's what we've been advised."
"I don't understand what legal effect that announcement has," Soofi said. "I don't understand what legal effect buying property has to bar you and bar this commission from enacting an ordinance that would have some sort of regulation on where a power plant pumping hundreds of thousands of gallons of water a day is located."
Bye, like he has done in recent meetings, said he has "some major concerns with this whole project. I don't know if any of the rest of you were last night, but I was still awake between 1:30 and two o'clock this morning with this on my mind; I don't know what the solution is to it. I'm concerned about this project just the same as you all sitting here is, but we have an entire county that we represent."
Schultz and District 2 Commissioner Randy Gilmore have remained mostly quiet on the issue, but both last Tuesday said they must represent everyone in the county, including both the plant's opponents and those in favor of it.
A statement Soofi later released on Lucas' behalf said the goal in having Soofi attend the meeting was to "carefully and thoroughly gather as much factual and investigative material as possible" to learn more about the proposed project and that he has not decided his next course of action.
"In today's sensitive economic climate, Mr. Lucas believes it is critical for businesses requesting federal, state and local funds, grants and tax incentives to pursue new business ventures to be fiscally responsible and ensure that their business pursuits constitute the best use of taxpayer dollars. Mr. Lucas believes that it should be a priority for taxpayer dollars not to be wasted frivolously on pursuits that do not benefit the communities which they purport to serve.
"Mr. Lucas would like Crawford County to set up and establish disclosure requirements and procedural steps for such business ventures, which would include providing transparency and disclosure their sources of funding, project details, regulatory and other approval processes, and other details, such as a careful environmental study.
"Mr. Lucas looks forward to learning more about the specifics of Liberty Green's proposed project and participating in future discussions and hearings about the project."
IDEM hearing next Wednesday
The Indiana Depart-ment of Environmental Management will conduct a public hearing regarding Liberty Green Renewables LLC's application for an air permit on Wednesday, Jan. 13.
The hearing, at the Crawford County 4-H Community Park south of Marengo, across from Crawford County Junior-Senior High School, will begin at 5:30 p.m.