Environmental panel dismisses appeals, rules for coke plant

COLUMBUS - A state panel has placed a proposed coke plant straddling the Toledo-Oregon border back on track, dismissing an appeal that could have killed its pollution permit.

The Ohio Environmental Review Appeals Commission unanimously issued a summary judgment Wednesday in favor of the backers of the FDS Coke Plant, ruling against the Sierra Club and the village of Harbor View.

The three commissioners found that, even though construction of the plant had not begun in the six years since issuance of the original air emissions permit, FDS contracts for consulting and engineering have met the burden to extend the permit.

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.

"We're happy the ruling came out. It basically dismisses all the pending appeals and indicates that we have a valid permit reaffirmed by ERAC," said Lance Traves, FDS project manager and environmental consultant.

He said the project has been in a holding pattern because the permit has been tied up in appeals, and it will take time for it to gear up again.

This week's ruling stated: "The commission believes a binding contractual obligation to undertake and complete within a reasonable time a continuing program of installation encompasses much more than just the contract or contracts associated with the physical construction of a facility. Particularly in those instances … where the facility to be constructed is of a significant size or complexity, numerous contracts involving various design, management, and engineering aspects of constructing the facility may very well precede contracts relating to the actual physical construction at the site.

"That does not mean, however, that those contracts should not be construed as binding contractual obligations to undertake a continuing program of installation."

FDS has contracts with Talon Consulting to oversee work for the project and with UHDE Corporation of America for engineering and design.

The Sierra Club and Harbor View, however, have the option of appealing the case to Franklin County Common Pleas Court.

"The fact is the project has never been fully designed," said Sandy Bihn of Oregon and the Sierra Club. "We've never seen a completed set of plans. When they put in for a permit, they should know the design and have an estimated amount of emissions. This is not in the spirit of the law at all."

The original permit was issued in 2004. It was later modified and extended by the Ohio Department of Environmental Protection.

The state environmental commission noted that the case was tied up for a time in an attempt by the Sierra Club and Harbor View to force FDS to produce certain documents. The commission said it has seen enough of the contracts in question to ascertain their purpose.

"We don't know who the backers are," Ms. Bihn said. "It's amazing to me that we can back a project when we don't know who's going to own or operate it."

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.