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Judge Wieners hears arguments in MPCA suit

Fri, Dec 5th, 2003
Posted in Features

ROCHESTER - Judge Joseph Wieners listened to more than two hours of arguments from attorneys on Tuesday in a suit brought against the Minnesota Pollution Control Agency by an environmental group. Orig-inally scheduled for courtroom #6, the hearing had to be moved to a larger courtroom because of the large crowd.

Southeast Minnesotans for Environmental Protection (SEMEP) filed suit after the state regulatory agency did not require an Environmental Impact Statement on the proposed Heartland Energy & Recycling tire-burning plant in Preston. Alexandria attorney Jim Peters, representing SEMEP, told the court that the MPCA violated its own procedures in not allowing citizens to review testing done by the regulatory agency after the Environmental Assessment Worksheet comment period ended on October 25, 2002.

“Heartland changed the project after the public comment,” Peters said. “And the MPCA allowed this because they knew they needed more information.”

Peters said that the MPCA did additional testing in February 2002 and did not allow public comment on those test results.

According to Peters, Heartland, in their EAW, planned on using using 80% TDF and 20% wood to generate electricity.

Calling Heartland “the biggest tire burning facility in the country, possibly the world,” Peters said the company would burn 93,000 tons of tires annually using a fluidized bed process. Peters called the project “totally experimental” and challenged the data used in the EAW which was gathered from modeling done in 1986.

Using a three foot by three foot box, Peters showed the size of the plant modeled and told the court that Heartland would be a hundred times larger.

Peters cited a Department of Health memo which stated that “test burns rarely mimic actual results.”

Referring to the cumulative emissions of placing Heartland within 900 feet of the ProCorn ethanol plant, Peters asked why the MPCA had no data on ProCorn during the EAW.

“During the public comment period ProCorn was fined by the Environmental Protection Agency for violating pollution standards, and yet the MPCA had nothing on Procorn.” Peters said.

Attorney Tom Dunwald, who is representing the city of Preston who had intervened in the SEMEP suit, argued that the MPCA “shoehorned” the Heartland project, making it fit into its regulations.

“Public review requires public participation,” Dunwald told Wieners. “They cherrypicked the data.”

Assistant Attorney General Kathleen Winters, representing the MPCA, told the court “that real world data was used, coming from a variety of sources.”

She said that as scientific experts, the MPCA is “entitled to make choices on what data it wants to use. They evaluated facilities with fluid-bed technology, they did literature searches.”

Winters said that citizens did participate fully and that any additional testing done by the MPCA was to make the project better.

“There is no data in the record that indicates that there is a significant health risk with this plant,” Winters said.

Winters said that the regulatory agency did look at the cumulative effects of ProCorn and Heartland, and found that the combined effects would not exceed environmental standards.

Attorney Andrew Brown, who represents Heartland, who intervened in the case on the side of the MPCA, told the court that in the suit, they are asking “you (judge) to second guess the MPCA.”

Brown challenged that SEMEP’s attorneys had talked in court about “process” but had not shown anywhere where the data used by the MPCA was faulty.

“The question to this court is whether there is substantial evidence to support a MPCA decision,” Brown said. “The MPCA did not act arbitrarily and capricious.”

Wieners who has 90 days to rule in the case, asked questions throughout the hearing, playing devils advocate with all four attorneys. He asked several questions having to do with modeling, health and the public process.

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