Ethanol plant hearings resume before appellate court

The hearing begins at 10:30 a.m. at Plaster Student Union on the Missouri State University campus. Oral arguments are typically limited to 20 minutes for appellants and 15 minutes for respondents, according to the Court of Appeals Web site.

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 plant would deplete the groundwater supply and could pollute area waterways.

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 would be capable of producing 101 million gallons of fuel-grade ethanol annually. In turn, the plaintiffs – known collectively as Citizens for Groundwater Protection – appealed his ruling to the state Court of Appeals.

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.

But Springfield attorney Bill McDonald, who has represented the plaintiffs throughout the suit, has argued that Conley erred by applying a standard of proof higher than a “reasonable likelihood” that the plant would negatively impact the aquifer.

McDonald, of McDonald, Hosmer, King & Royce PC, said the “certainly and inevitably” standard cited by Conley was outdated because it comes from a 1928 Missouri Supreme Court case, and that the standard changed to “reasonably certain” after a 1973 case and the passage of the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

Despite the pending appeal, GBE – formed by business partners Greg Wilmoth, Charles Luna and Jeff Negre – cleared a major regulatory hurdle in April.

That month, the Missouri Department of Natural Resources issued an air pollution permit for the plant after GBE paid nearly $17,000 in fees for the 330-hour permit review process. GBE has two years from the permit issue date to begin construction.

See SBJ’s Sept. 15 issue for more about the Court of Appeals hearing on the proposed ethanol plant.