Ethanol plant hearings resume before appellate court

A group of Webster County residents filed the suit against Gulfstream Bioflex Energy LLC in October 2006 after learning of the company’s proposal to build the $185 million plant on 252 acres of farmland northeast of U.S. Highway 60 and Porter Crossing Road. The crux of their argument: The water-thirsty plant – designed to pump 800 to 1,000 gallons per minute from on-site wells – would deplete their groundwater supply and that the plant’s discharge could pollute area waterways.

Both sides argued the case Sept. 10 before appellate judges Gary Lynch, Nancy Raimeyer and Don Burrell Jr. in a packed Plaster Student Union auditorium on the Missouri State University campus. Attorney Bill McDonald, with McDonald, Hosmer, King & Royce PC, spoke on behalf of the plaintiffs – known collectively as Citizens for Groundwater Protection – and attorney Kory Stubblefield, with Lowther Johnson LLC, represented GBE.

The plaintiffs’ appeal is based on two points, McDonald said. They dispute that the trial judge properly disposed of their request for a declaratory judgment and that the burden of proof that judge applied was legally obsolete.

After a two-day bench trial in March 2007, visiting Boone County Judge Frank Conley ruled that GBE could move forward with its plans to build the plant, which could produce 101 million gallons of fuel-grade ethanol annually.

Conley ruled that, because Webster County has no planning and zoning regulations, the plaintiffs needed to prove that construction of the plant would either result in a nuisance or damages to surrounding properties. He concluded that they failed to meet that burden of proof.

McDonald said the “certainly and inevitably” standard cited by Conley was outdated because it comes from a 1928 Missouri Supreme Court case, and that the standard changed to “reasonably certain” after a 1973 case and the passage of the Missouri Clean Water Act.

In his response, Stubblefield said plant opponents failed to present convincing evidence before Conley, who disbelieved their main witnesses – Ozarks hydrologist Tom Aley and former geological engineer Elizabeth Warrick. Stubblefield further suggested the burden of proof applied was irrelevant.

“They couldn’t meet any burden of proof,” Stubblefield told the judicial panel. “… Essentially, our point’s very clear here: The evidence just isn’t there for the appellants.”

Chief Judge Lynch said the Court of Appeals strives to issue opinions within 60 to 90 days of hearing a case. If the court finds in favor of GBE, McDonald said his clients would appeal to the Missouri Supreme Court, which decides which cases it hears.

The judges answered questions about the appeals process after the hearing, but many audience members who turned out to support Citizens for Groundwater Protection – many of them wearing adhesive nametags reading “United We Stand” – attempted to revive the GBE-water rights debate. Lynch repeatedly explained that judges were prohibited from discussing the merits of a pending case.

Despite the ongoing litigation, GBE – formed by business partners Greg Wilmoth, Charles Luna and Jeff Negre – cleared a major regulatory hurdle in April by obtaining an air pollution permit from the Missouri Department of Natural Resources. GBE paid nearly $17,000 in fees for the 330-hour permit review process. The company has two years from the April 24 issue date to begin construction.

Luna, who attended the hearing, only said that GBE would soon be exercising its option to purchase the plant property from owners Larry and Linda Jo Porter.

Luna declined to disclose the identities of other GBE executives or say whether financing was in place for the ethanol plant. GBE previously said Walton Construction Co. would be contracted to build the plant, but Bill Killian, owner of Killian Group of Cos., was seen leaving with Luna after last week’s court hearing. Killian told Springfield Business Journal he was attending the hearing “just as an interested party.”