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Preston Planning & Zoning Commission recommends granting CUP to Heartland


Fri, Apr 18th, 2003
Posted in Features

It was a balmy summer-like evening, the Preston City Hall overflowing with interested residents, when the Preston Planning & Zoning Commission met to consider a conditional use permit application from Heartland Energy & Recycling, LLC.

Heartland plans to burn tire-derived fuel to produce electricity.

When Commission Chairman Kevin Ostern called the meeting to order, he took some time to spell out the rules of order limiting individual public comments to three minutes and warning that no personal attacks would be tolerated.

On February 18, 2003, the Preston City Council rescinded a conditional use permit (CUP) previously issued to Heartland because of procedural errors. According to state statute, a CUP cannot be issued until after the Environmental Assessment Worksheet (EAW) is provided by the Minnesota Pollution Control Agency (MPCA) and until the MPCA determines whether a tougher test, an Environmental Impact Statement (EIS) is needed. The EAW was approved on February 25, 2003, and the EIS was deemed unnecessary. This brought the matter back to Preston’s Planning & Zoning Commission Monday night.

Heartland's legal counsel, Andy Brown told the Commission that the MPCA had completed an extensive review of environmental issues and that Heartland was a 'reasonable and lawful project'.

Commission member Grant Boadwine made a motion to consider resolution number 03-03 which had been prepared by the city of Preston’s law firm of Kennedy & Graven. The resolution recommended the approval of a CUP for Heartland. The motion was seconded by Commission member Randy Haakenson.

Jim Thompson, an attorney with Kennedy & Graven, advising the Commission, explained that there had been two errors made in the process by the city. On May 13, 2002, there was a public hearing, after which the Commission passed a motion to approve the CUP, but had failed to prepare any formal Findings of Fact to support the recommendation. Monday’s resolution would correct that error and consider information provided by the MPCA in their Findings. The second error was the premature issuance of the CUP by the city council which was rescinded on February 18, 2003, for that reason. Mr. Thompson went on to explain that the rescission brings the matter back before the Commission in the same posture as before, with new information from the MPCA Findings. In other words the whole process does not start entirely over.

Preston Council member Mike McGarvey, who is a member of the Commission, wanted to know about extending Heartland’s application for another 60 days. Thompson related that the city ordinance doesn't address the state's 60 day rule, and that the statute is ambiguous and there is no case comparison. He suggested that if the Commission wanted to extend the process for 60 days, they should first get the written approval of the applicant (Heartland). Thompson also reminded the Commission of their purview, which is to handle items related to land use.

Southeastern Minnesotans for Environmental Protection (SEMEP), a local environmental group opposed to the project, sent a letter to the Commission detailing a list of 25 items for the Commission to review and consider in regards to the Heartland issue. One of the concerns was emission reports.

Bob Kilmore, a consultant for Heartland from Roseville, explained that there would be continuous emission monitoring (CEM). McGarvey asked if mercury would be continuously monitored? Kilmore related that the MPCA didn't see mercury emissions as a significant concern in this case. (Heartland has applied for an Air Permit which is still in process by the MPCA).

Several citizens expressed their concerns, most wanting more time before issuing the CUP and calling for more and tighter restrictions on Heartland to assure a safer, more environmentally friendly business. Others were concerned about protecting Preston from any financial loss if the project were to fail.

Former Preston Council member Steve Knoepke asked the Commission if Bob Maust (Heartland) had fulfilled every task.

“Had he made any deliberate attempt to withhold information?” Knoepke questioned, "How can a business fulfill all the requirements if the targets keep moving?"

Jim Peters, an attorney hired by SEMEP, pleaded with the Commission.

“This is your chance to put some conditions on Heartland,” Peters said. “This isn't a convenience store or a gas station.”

Peters suggested that the resolution being considered by the Commission was 'just boiler plate law'. He felt that Heartland should be required to have all permits in hand before construction begins and that construction should not be allowed to start until September, so as to allow for a legal challenge to the EIS process, which is on appeal right now.

Peters believes that the MPCA erred when they used the non-fossil fuel standard for tires which are a petroleum product. He also suggested that the cumulative impact of emissions from both Heartland and Pro-Corn was not addressed.

“The MPCA has been reversed on occasion," Peters said. He called on the Commission to seek an extension, deny outright, or at least to place specific conditions on Heartland.

Maust responded that his investors would expect all permits to be in hand prior to construction.

"You wouldn't build something that wasn't going to be approved," Maust said.

Andy Brown, Heartland's attorney, related that even though tires contain petroleum, only raw materials like oil and coal are considered fossil fuels by MPCA.

Commission member Dick Nelson moved to amend the motion recommending approval of the CUP, with an opportunity to have a 60 day extension with a public hearing. The amendment was defeated by a vote of three to two.

Boadwine asked for a vote on his motion that was made several hours earlier. The commission approved the resolution recommending approval of the CUP by a vote of three for (Randy Haakenson, Boadwine and Ostern) and two against (Nelson and McGarvey) .

The matter now moves to the Preston City Council, who are expected to rule at their April 21 meeting on whether a conditional use permit should be granted to Heartland.

Karen Reisner can be contacted at news@fillmorecountyjournal.com.

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