Friday November 4, 2005

Ethanol plant foes score victory as judge favors stay

by DON AINES

mailto:%20chambersburg@herald-mail.com

CHAMBERSBURG, Pa. - A stay granted in June by Franklin County Judge Richard J. Walsh will remain in place until an appeal of a ruling by the Greene Township Zoning Hearing Board on a proposed ethanol plant is resolved.

Penn-Mar Ethanol, a York, Pa., partnership, asked the court to lift the stay and allow it to proceed with a land development plan for the plant, which would produce 60 million gallons a year of the fuel additive from corn. A hearing on the issues related to the stay was held Sept. 19.

In May, the zoning board ruled the plant was a large-scale manufacturing facility and thus a permitted use in the township. Citizens for a Quality Environment and a group of individuals appealed the decision, contending the board acted improperly in making that decision and in granting a height variance for the project.

In his opinion, Walsh wrote that the citizens group showed evidence of potential irreparable harm if the project proceeds.

Walsh wrote that the group produced photographs at a zoning board hearing supporting their "claims that views in the vicinity are bucolic and pastoral. There was evidence suggesting potential danger and risk attendant to the production of ethanol at a location not far from where federal munitions are stored."

Penn-Mar Ethanol did not show it would be substantially harmed by the stay remaining in place, Walsh wrote.

"We heard uncontradicted evidence that Pen-Mar Ethanol's air quality application to the Pennsylvania Department of Environmental Resources ... is likely to be pending for a period of at least six months," Walsh wrote. Because it "is winding its way through regulatory pathways ... little harm will accrue Penn-Mar Ethanol by the continuation of the stay," he wrote.

Walsh also noted "that the clear evidence establishes that Penn-Mar Ethanol has no funding in place to proceed with this estimated $85 million project, suggesting that this is yet another factor contributing to the project's lack of momentum at this juncture."

"This doesn't decide the case. He's just deciding we're entitled to the stay," said Frederic G. Antoun, the attorney for Citizens for a Quality Environment. He said he was encouraged that the judge found a substantial likelihood that the group could succeed on the merits of its legal arguments.

Still unresolved is the citizens group's appeal of the zoning board ruling, Antoun said. Walsh could either hold another hearing to take more evidence, or decide that no additional evidence is needed and issue an opinion, Antoun said.

The citizens group wants another hearing, while Penn-Mar's attorney said during court arguments in October that no additional evidence was needed for the judge to make a ruling. The citizens group contends the plant would be a conditional use under the zoning ordinance, rather than a permitted use.

"The ruling on the appeal of the zoning decision is the real issue," Penn-Mar Project Manager Scott Welsh said in a statement issued Thursday. "It's unfortunate that this delay impacts so many people ... It delays bringing jobs to Franklin County, it delays helping area farmers and it delays access to American-made renewable fuels at a time when it is so desperately needed."

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