Frustrations high at hearing
Commissioners take written comments, set vote for June 29
June 02, 2010
There had been hope that the May meeting of the Crawford County Board of Commissioners would begin to bring conclusion to the 17-month controversy surrounding the potential construction of a woody biomass-to-electricity plant near Milltown. However, for many people in the packed courtroom at the May 24 meeting, which included the continuation of a public hearing that began in March, it only brought frustration.
Some were frustrated that the commissioners delayed a decision on an ordinance that would require the 28-megawatt plant's developer, Liberty Green Renewables Indiana LLC, to go through a licensing process. Others were frustrated by an ordinance that they deemed either too weak or too ambiguous.
Mike Scanlon of the law firm Barnes & Thornburg LLP — hired by the county to review a proposed ordinance prepared by Ice Miller LLP, at the request of Forrest Lucas and his daughter, Tammy Vanlaningham, who lives near the plant site, that would require facilities like the biomass plant to be licensed — said he had three main goals in tweaking the ordinance: avoid any appearance of zoning, since the county does not have a comprehensive land-use management plan; provide clearly ascertainable standards for license applicants; and clearly define the responsibilities of the county, state and federal governments.
Although a draft of the ordinance had been circulated among the commissioners, LGRI and members of the public late the previous week, a final version wasn't submitted to the commissioners until earlier that day. Therefore, Larry Bye, president of the board of commissioners, who earlier had hoped to have a vote that evening, suggested postponing a vote until a special meeting late the following week.
That changed, however, as those in the audience began expressing concerns about the ordinance, and the commissioners decided to allow written comments through tomorrow (Thursday) so that a new final ordinance could be drafted and made available for public review by June 15 and voted on at the commissioners' June 29 meeting.
Perhaps the most passionate of those expressing concerns was Mike Wukmer, the Ice Miller attorney who drafted the original ordinance.
"I'm not sure what I'm looking at," he said of the new ordinance, "and, because I've received several different versions of this, I want to say I'm exceedingly disappointed in the process ... because you asked us, 'Please, cooperate with our attorneys to address this.' We took some of the concerns that were raised last time that provided a supplemental ordinance and then we got a couple of changes back, but we were flat-out told, 'Don't provide us any more comments. We're not interested in getting them.'
"Really? I mean, is that what you really expect from this process?" Wukmer asked the commissioners. "I'm a little bit frustrated right now, because I heard you say, when (Scanlon) stood up here, when this was read that, 'We just got it tonight, and this is as good as we're going to get' and that you're ready to pass it. Really? We haven't heard a single comment yet about what the deficiencies we think are and you're ready to pass it already. I'm really disappointed in that.
"I've been an attorney for 25 years, and I had to really struggle to read parts of this and (understand) it. So, I'm really disappointed for you to, out of the gate, discount what people are going to say tonight."
Wukmer said there are "a lot of very serious concerns here, not because this was tweaked. It wasn't tweaked; it was watered down. It looks like there are standards in here, when, in fact, sometimes there aren't any standards, and it makes it look like you're trying to do something, but you're really not, according to what a lot of people are saying.
"What I ask you, first and foremost, is slow the process down, if you have to. This isn't the federal stimulus bill, where we have to pass it without reading or studying it. I mean, you got to get this right, OK? We're willing to help, but you've got to listen, too."
Wukmer told the commissioners that his intent wasn't to bash the work done by Barnes & Thornburg, noting "there are some good additions to this ordinance," but to make sure he is allowed to offer input as "there are some that aren't so good."
"You need to hear both sides of that. You need to synthesize that and come out with the best product that you can get," he said.
Giving an example of where the ordinance can be improved, Wukmer pointed to its lack of requiring an environmental impact study. He disagreed with Barnes & Thornburg's premise that the ordinance should have clearly defined lines between the responsibilities of the county and the state and federal governments, explaining that just because a state or federal agency has authority over something, doesn't mean they will do it.
"Quite frankly, I think it's a cop-out to say, 'Well, if there's a state agency who might address it, then we're not going to look at it. Even if they're not doing it, we're not going to look at it, because it's their responsibility,' " Wukmer said.
He told the commissioners it is their job to consider all of the issues and they are the only ones who can ensure that all of the issues are addressed.
"So, I guess the bottom line is, we do thank you for the opportunity to address this, but let's don't rush it" until it's ready, Wukmer said. "As good as some of these ideas are, they're not ready to implement. There's still some true tweaking that needs to be done."
He encouraged the commissioners to "put some teeth" in the ordinance and create something that allows them to be "heroes" not just in Crawford County, but the entire state.
"You want to actually do something, not just look like you did," Wukmer said.
Attorney John Kraft, of the New Albany firm of Young, Lind, Endres & Kraft, which is representing LGRI, also urged the commissioners to take the necessary time to create an ordinance that is deemed fair by all parties.
"I would echo the sentiments of the comments just made as it relates to you've got to get it right," he said.
Like Wukmer, Kraft said there was little time to review the final draft that Scanlon presented to the commissioners.
"While it may not necessarily be the help that some people in the audience may think, we're here to help, as well," he said. "I think, without waiving any issues as relates to legality or enforceability, I think it's important that you do take your time on this. It's not a matter of Liberty Green Renewables Indiana is going to start construction tomorrow. As many of you are aware, they're still in the process of dealing with air permits."
Kraft agreed with Wukmer that time needs to be taken to develop standards within the ordinance and that setting a special meeting in a few days to vote on the ordinance not only rushes it into being, but also increases the risk of later litigation.
He also encouraged the commissioners to have a public hearing that is meaningful.
"Public comments should be public comment on a document that the public has had the opportunity to see, not a matter of something that you received this evening. As a result of you receiving it this evening, I happened to be privy to a copy, maybe a few other people happened to be privy to a copy, but the general public hasn't," Kraft said.
"As I understand, there is a desire to protect the citizens," he added later. "I think you also have to put together an ordinance that ultimately you can enforce and it's going to stand any legal challenge that may come up, and certainly we're here to help that, as well."
Reiterating that LGRI isn't waiving its issues regarding the enforceability or legality of such an ordinance, Kraft said, "I certainly believe it's important that what you pass is something that we can live with, you can live with and the citizens can live with. I believe the ordinance that you have before you, there are issues that need to be addressed."
After another member of the audience voiced concern about the timing of the delivery of the final version of the ordinance and whether Ice Miller was told not to offer additional comments, Scanlon responded.
He said both sides — Ice Miller and LGRI — were treated equally, with both being given a copy of the ordinance and told that, if they had comments, they should bring them up at the public hearing. The concern that was communicated to him by the county, he said, was there had been plenty of back-and-forth and it was time to create a final document.
"We did not have communications with one side or the other. It was with both, and it was with both at the same time," Scanlon said.
Mick Harrison, an environmental attorney from Bloomington who isn't representing anyone in the matter and who specializes in environmental law, also said the commissioners should "take their time and get this right and make sure the community has the chance to review the language you're considering, to give intelligent, meaningful comment on that language. We're sort of guessing tonight what that language is."
Harrison suggested the commissioners accept written comments from the public before voting on any ordinance.
John E. Colin, the regular attorney for the board of commissioners, agreed that written comments would be helpful and recommended that the commissioners allow them, but told the audience that the commissioners have done a good job of listening to the public's concerns since the biomass plant was announced about a year and a half ago.
"This entire process ... has been deliberate, thoughtful and intended to really allow all voices to be heard," he said. "As those of you that have been through this process and attended the numerous meetings that we've been (at) will know that that's the case.
"I also indicate that a county is not required to go through this process for law making or for ordinance making, and it is somewhat unusual that they are doing that, although I think it's warranted. This is an important issue; it's a big issue. It's the kind of thing that has the potential of affecting numerous businesses, or many businesses, for years to come, and I think it makes sense to do that."
However, Colin did provide a bit of caution to those wanting to offer more input.
"I feel like I know this much and that is this: At the end of the day, not everyone will agree to the terms of the ordinance and at some point," he said, turning to the commissioners, "your decision will be, 'Do we enact whatever is before us?' "
Bye agreed, explaining that the reason the commissioners were considering a special meeting in a few days was because they had indicated at their last meeting that the ordinance would be considered that evening.
"We heard month after month, 'It shouldn't be taking this long. You need to do it, pass it and have it done.' So now, we've got one tonight and neither side is happy," he said. "If we change this ordinance every time somebody tells us to change this ordinance, we never will get it passed."
Not everyone, however, seemed pleased that the commissioners decided to wait another month to act on the ordinance.
Tom Doddridge of Milltown said the commissioners have heard "hours and hours of testimony" during the past year-plus and "at some point a decision has to be made."
He said he favors allowing public input but urged the commissioners to set timetables and hold those, including the lawyers, accountable to them.
"I have sat at meetings, often in private and in public, in this forum and in other forums, and if I've heard once, I've heard 400 times, 'We just got this today' or whatever," Doddridge said. "And I've seen that from both sides of the fence."
He said he believes "very strongly there are attorneys in this room who probably would like for this to go on forever," noting a deadline is needed.
Forrest Lucas, founder and owner of Lucas Oil Products, said he hired Ice Miller to draft the original licensing ordinance after declining an invitation to join the Liberty Green Renewables group based on his research of biomass facilities.
Lucas said he met with LGRI officials again a few months ago at their request and, during the course of the discussion, told them they can't fuel the plant with wood from the area. He said they agreed and indicated they also would burn wood scrap from Louisville.
Lucas said he also asked them what they plan on doing with all of the discharge water from the plant and if they were going to dispose of it on 33 acres of switchgrass as indicated. He said they told him that it would go into the sinkholes, but not to worry, because it's clean, adding that he has concerns about the company drilling wells to supply its water.
"The last thing that I want to say is, you know, I've spent a lot of money on this (attorney fees), brought up a perfectly good excuse for you guys to turn this down or to regulate it. It doesn't mean that we've tried to keep them from coming in; it's simply you're going to keep them honest," he said.
"Now, you've turned around and spent, as I understand it, another $15,000 with Barnes & Thornburg — probably going to spend another $40,000 or $50,000 — to get the guts totally stripped out of the paper that Michael Wukmer drew up. I can't understand why you guys, when everybody in the county that I know of — I don't know one single person that wants this thing, why is it you three guys are the only ones in the county who want it? It implies a connection between Duke Energy, Liberty Green, Barnes & Thornburg and you three guys."
In response, Terry Naulty, a partner with LGRI, said the commissioners only have heard one side of the story for months.
"You're hearing stories now, like from Mr. Lucas, that he was asked to join LGR. That's not true. He doesn't want to tell you the truth because it makes him look bad," he said. "The truth is that we sat down with Mr. Lucas and said, 'If you want us to not build here, you could buy the company. Instead of paying for lawyers to fight this, take the same money and just buy the company, and we'll go away.' He decided not to do that."
Naulty added that assertions regarding discharging water into sinkholes and drilling wells are false.
"We have never made an allegation or any type of a statement that we would drill wells," he said, turning to the commissioners. " ... You guys know that. We've told you all along that we intend to purchase water from Ramsey Water Co. (through Blue River Regional Water District). Their wells are along the Ohio River. ...
"We will not drill a well. That aquifer cannot support the amount of water that we need, and you know that and they know that. They're only telling you what they want you to hear," he continued.
"Finally, what is the connection between Barnes & Thornburg, Liberty Green and Duke Energy? You know, that's almost libelous for someone to accuse us of having a relationship. We have no relationship with Duke Energy. We have no relationship with Barnes & Thornburg."
Given the opportunity to respond to a document read by Alec Kalla of French Lick where, according to Kalla, Naulty in March testified to the Indiana Utility Regulatory Commission that he has acted in the role of and as a manager of and as an originator of long-term structure transactions for multiple utility companies including Cinergy/Duke Energy for the past 10 years, Naulty declined.
"Terry, would you like to respond to that?" District 3 Commissioner James Schultz asked Naulty.
"No, it doesn't bear any response," Naulty answered.
The deadline for written comments regarding the proposed licensing ordinance to be turned in to the Crawford County Auditor's Office is tomorrow (Thursday). A draft of the new final ordinance will be available at the auditor's office on June 15. The commissioners will consider the ordinance at their June 29 meeting at the judicial complex in English. The regular meeting will begin at 6:30 p.m. with the public hearing at 7:30.