Coke plant hearing over permit accelerates

9/1/2009

COLUMBUS - A hearing on a proposed permit for a controversial coking facility on the Toledo-Oregon border has been suddenly fast-tracked after lawmakers quietly slipped language into the state budget to accelerate appeals.

Backers of the FDS Coke Plant as well as the Sierra Club and Harbor View residents who oppose it will each have one-hour, back-to-back hearings before the Environmental Review Appeals Commission on Sept. 16 thanks to new deadlines forcing a decision in this and 338 other cases by Dec. 15.

"[Gov. Ted Strickland] supported it, but it was developed by the General Assembly,'' spokesman Amanda Wurst said. "He supported it because he was interested in having ERAC make decisions in a more timely fashion. The FDS Coke Plant is one of the significant projects pending at ERAC.''

The plant is proposed for a 51-acre Maumee Bay tract owned by the Toledo-Lucas County Port Authority. The $800 million project includes a co-generation power plant to be fueled by steam from the coking plant.

The language was added by a six-member House-Senate conference committee charged with reaching a budget compromise, even though neither chamber had mentioned ERAC deadlines in their respective versions.

"We were blindsided,'' said Jack Shaner, spokesman for the Ohio Environmental Council.

Rep. Matt Szollosi (D., Oregon) confirmed that he took the idea of setting firm deadlines to Sen. Mark Wagoner (R., Ottawa Hills), a conference committee member. But Mr. Szollosi insisted it was about more than FDS.

"FDS is a pretty good example of the appeals process dragging on for years, irrespective of the result,'' he said. "There is an appeal process from ERAC, but if there's no determination from ERAC, the process is at a complete standstill.

"In the agency's defense, they don't have a tremendous amount of staff or manpower to be able to move things out in 30 or 60 days, but my hope is that they can certainly move things out in a 12-month period,'' he said.

The budget requires any ERAC appeal filed before April 15, 2008, to be decided by Dec. 15, 2009. Any appeal filed by Oct. 15, 2009, must be decided by July 15, 2010, and any case filed thereafter must have a decision within a year.

ERAC Chairman Lisa Eschleman said her office has been in contact with Mr. Strickland's for help in complying with the deadlines. She said the office consists primarily of three commissioners with no hearing examiners or staff lawyers.

"We certainly recognize the General Assembly's mandate has resulted in some unintentional consequences,'' she said. "However, we are under order to get decisions out in 339 appeals by Dec. 15. In order to do that, we have had to truncate everyone's amount of time that they have for hearings ''

Even the Ohio Chamber of Commerce wants the governor's office to rethink the issue.

"There isn't any staff to really get these done in a timely manner,'' chamber President Andy Doehrel said. "What we're afraid of is decisions will be handed out willy-nilly instead of looked at in depth. We're very much in favor of moving permitting along, which is a huge factor for business, but we don't want to force something that makes bad results.''

Sandy Bihn, a Sierra Club member from Oregon, said the brief hearings and rushed timelines for discovery will put opponents at a disadvantage while failing to fully prepare a record to be later reviewed by the 10th District Court of Appeals in Columbus.

"The strangest thing of all is we don't know who the owners and operators are,'' she said. "We don't know who the backers are. Stranger still is that the state of Ohio is pursuing this with all these unknowns.''

Lance Traves, FDS project manager and environmental consultant, said the group sought the legislative change but insisted it is one of many appeals affected.

"It puts the state in a better position for major economic development projects,'' he said. "This provides a system of checks and balances and does not continue an environment where the appeal can be used to obstruct or delay projects so that they're dying on the vine.''

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.