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‘Please don’t sell the sky’

Milltown, Ind.

I am writing today to ask you to join us at the Jan. 28 Crawford County Commissioners' meeting at 6:30 p.m. to encourage them to pass the ordinance we have placed before them restricting incinerator use near our schools, hospitals and facilities for the elderly. Let's give them this message: Please don't sell the sky here.

Since our requests for further studies are being denied, we must act now. At the Jan. 13 meeting IDEM held here, Dr. Matt Stuckey of IDEM told me they would not seek an EIS (Environmental Impact Statement) although our commissioners did the right thing by formally requesting one be done. It's not their standard procedure, he said, and IDEM is not required to honor citizens' requests. Although IDEM is required to seek public input, they are not obligated to base any decisions on it, ironically enough. Dr. Stuckey suggested we take our concerns about the effects of air pollution to our elected officials.

I think we should take his advice and request on Jan. 28 that they handle the issue. They should vote to pass the ordinance before them. As that regulation states, the American Lung Association warns of the serious health problems our kids and grandparents will suffer if such emissions are permitted in their vicinity.

The commissioners' hesitation to pass this ordinance has been blamed on legal advice from the offices of Barnes & Thornburg. They have also received advice from Rabeh Soofi of the law firm Ice Miller LLP and from Michael Gillenwater, who wrote this ordinance for us, that it is safe to pass. Who is right?

First, Barnes & Thornburg sent us two county ordinances restricting industries that were upheld under appeal. The Home Rule law that allows our officials to protect our health, safety and welfare has powerful precedents that, clearly, suggest this ordinance is viable.

Next, the suggestion has been raised that LGR's proposed facility may be "grandfathered in," a concept attorneys use because it is, Gillenwater assured me, open to interpretation. If an ordinance can close existing strip clubs and be upheld or pull liquor out of stores when a county goes dry, the "grandfathered" argument is very weak here. Moreover, since no construction permit has been issued for an incinerator here or water or fuel source guaranteed by contract, no local incinerator exists.

Furthermore, because immediately upon receiving notice of an incinerator project planned here when it was announced in this newspaper, I asked both the Milltown Council and the county commissioners at their next meetings, last February, to consider an ordinance regulating incinerators here, and those officials replied that they would study the issue – with the proposed incinerator operators present – those operators were warned at the outset that an ordinance regulating that industry could be forthcoming. The commissioners have, I assure you, seriously studied this issue for the past year. Since these people were warned of this eventuality, it should be no surprise when our commissioners pass this ordinance.

It has also been said that this ordinance constitutes zoning, but that is obviously false, since it applies to portable as well as stationary facilities. It regulates the operation of a type of machinery only. If the county can regulate the placement of landfills and septic systems, it can regulate incinerator use and placement.

In fact, it is our commissioners' obligation, under Indiana law, to protect all the citizens of this county – not just those at a distance from a proposed incinerator. Our commissioners are one body sworn to serve the entire county, not governors of the areas that elected them.

Finally, it has been brought to my attention that our commissioners fear pursuing any action against their attorneys' advice, in this case the offices of Barnes & Thornburg. Lawyers are like doctors – if you don't like what they say, you get a second opinion. The commissioners have heard the attorneys Michael Gillenwater, a man with great experience in these matters, and Rabeh Soofi of the formidable firm Ice Miller that this ordinance will stand under appeal. If my doctor said I was gonna die and another doctor said I'd live if I follow his advice, I'd switch doctors, wouldn't you?

It may be time to switch lawyers. Perhaps an attorney from Ice Miller would be willing to represent the county in case of an appeal. I cannot swear that the thousands of concerned citizens could cover the cost of the county's legal fees, but I'd pitch in to protect the kids at Milltown or any other county elementary school. How about you?

Join me on Jan. 28 to implore our commissioners to please do not sell the sky for the remote possibility of a few future tax dollars or a dozen new, low-paying jobs at the expense of our children's health, our growing tourism industry and the value of our homes. Please do not sell the sky here.

Mark Woods
January 27, 2010

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