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Published: Tuesday, 9/15/2009

Appellate court says shortened coke plant hearings improper


COLUMBUS — The battle over a proposed coking facility on the Toledo-Oregon border will go on a while longer, thanks to an appeals court ruling that has at least temporarily derailed lawmakers' attempts to expedite decisions.

Three hearings that were set for tomorrow on the FDS Coking Plant before the Environmental Review Appeals Commission have been canceled.

The 10th District Court of Appeals in Columbus will hold a hearing Thursday in a lawsuit that claims the commission unconstitutionally limited the length of hearings to comply with strict new deadlines for final decisions adopted in July as part of the new state budget.

The commission had limited hearings to one hour — 30 minutes for each side.

Three such coke-plant hearings had been scheduled for tomorrow, including the appeals brought by the Sierra Club and the village of Harbor View challenging a project permit approved by the Ohio Environmental Protection Agency.

A lawsuit filed by 13 companies that have separate permit appeals pending before the commission — including Ford Motor Co., FirstEnergy Corp., AEP Ohio, and Procter & Gamble Co. — asked the court to intervene.

The lawsuit contends that holding six one-hour hearings a day is “arbitrary, inflexible, and clearly inadequate” and violates the parties' constitutional right to a “meaningful hearing.”

A three-judge panel granted the order vacating the abbreviated hearing schedule affecting 338 appeals, including the three coke-plant cases.

Rep. Matt Szollosi (D., Oregon) took the idea of setting firm deadlines to a joint House-Senate conference committee and the language was incorporated into the $50.5 billion, two-year budget in July.

The language requires any commission appeal filed before April 15, 2008, to be decided by Dec. 15, 2009. Any case filed by Oct. 15, 2009, must be decided by July 15, 2010, and any case filed after that must be finalized within a year.

The $800 million FDS project is proposed for a 51-acre Maumee Bay tract owned by the Toledo-Lucas County Port Authority.

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