Judge approves Webster County ethanol plant

The ethanol production company – Gulfstream Bioflex Energy LLC – learned of visiting Boone County Circuit Judge Frank Conley’s ruling the morning of May 4, said the firm’s Springfield attorney Bryan Wade of Husch & Eppenberger LLC.

The ruling came almost a month after GBE and Citizens for Groundwater Protection, the group formed by property owners opposed to the plant, argued their cases during a March 6–7 bench trial in a Webster County courtroom. The plant opponents filed suit against GBE in August 2006 after learning of the company’s plans to build the facility on 252 acres east of Rogersville along U.S. Highway 60.

Burden of proof

In his ruling, Conley denied the plaintiffs’ request for a permanent injunction prohibiting GBE from building the plant and dissolved a temporary restraining order placed on the company in December.

Conley noted 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 ruled that they failed to prove that the plant would “certainly and inevitably” create a nuisance.

Wade interpreted Conley’s ruling as tied to the expert testimony of Jim Vandike, groundwater section chief for the Missouri Department of Natural Resources; John Van Brahana, a University of Arkansas hydrogeologist; and Ray Hamilton, a Denver-based engineer with Carter & Burgess who has proposed a no-discharge wastewater treatment system for the plant.

“We’re very pleased, and we hope to move forward with the project,” Wade said.

But attorney Bill McDonald of McDonald, Hosmer, King & Royce PC, who represents the property owners who sued GBE, said the company still has to clear other hurdles before construction can begin.

“They’ve got a green light to engage in the permitting process, but they’re a long way from starting an ethanol plant,” he said.

McDonald said he plans to file post-trial motions arguing that Conley erred by applying a standard of proof higher than a “reasonable likelihood” that the plant would negatively impact the groundwater supply. According to court testimony, wells will pump between 880 and 1,000 gallons of groundwater per minute to the plant for ethanol production.

“It isn’t that (Conley) disbelieved our witnesses as much as we didn’t meet the high bar of proof,” he said.

Considering an appeal

McDonald’s clients are debating whether to appeal Conley’s ruling, and plaintiff Gary Rogers said the cost of continuing the litigation will be a factor. “We’ve got some tough decisions to make in the next couple of weeks,” he said.

Rogers, a Kingsley Group broker who has 30 years of experience in corporate America, said he thinks GBE has abused its corporate responsibility to get in on the government-subsidized ethanol boom.

GBE officials have said the Webster County plant will be able to produce 100 million gallons of fuel-grade ethanol annually – a figure that’s reflected in an air permit application the company submitted to the Missouri Department of Natural Resources in February.

DNR Permits Section Chief Kyra Moore said GBE’s application was incomplete based on the air-modeling analysis submitted. She said the company has not applied for an air permit for a second plant planned in Monroe City, near Hannibal.

GBE Vice President Charles Luna said he expects the permitting phase to conclude by July. Construction should begin shortly thereafter, he said.

Wade said GBE would re-engage its general contractor, Walton Construction Co., and work to obtain the necessary financing for the plant. GBE CEO James Kaiman, of Chesterfield, told Springfield Business Journal in March that a lead bank had been selected, but that the financing hadn’t been finalized.

“We’ve got that taken care of,” Luna said of the financing, without disclosing the source.[[In-content Ad]]