County Court prepares to dismiss appeal on TVRR project
Saturday, March 17, 2007 11:47 PM PDT
Larry Meyer Argus Observer
VALE
The Malheur County Court voted Wednesday to deny an appeal of a county planning commission site review application for Treasure Valley Renewable Resources’ proposed bio-refinery south of Ontario.
The appeal was filed by Concerned Citizens of Malheur County, a group of local residents opposed to the location of the facility along Alameda Drive and the Oregon Eastern Railroad line, which runs west of Vale.
The court decision was labeled as “tentative” because county staff still must draw up a document outlining the findings of fact on the issue. The court, though, instructed county staff to draw up the findings of fact document that supports the position TVRR has met the criteria set out in the county code to allow siting of the bio-refinery.
The court is scheduled to take up the issue again in two weeks.
The court’s vote followed a public hearing. Testimony at the hearing was narrowly focused on the record from the planning commission’s site review hearing. No new evidence or submissions were allowed.
Representing the appellants, Jan Wilson, an attorney from Eugene, said the area in question has Class 1 soils and is surrounded by exclusive farm use ground.
She also said TVRR is required to have the DEQ permits in hand before the site review process.
However, the main argument by Wilson and concerned citizens, is when TVRR switched from producing ethanol from a fermentation process to a gasification formula, the company changed the proposed uses of the property. Opponents assert the switch means the company should, by state law, go through another exceptions process for the zone change.
“It represents new uses,” Wilson said. “The proposal has been changed.”
The gasification process will be more of an industrial process, instead of fermentation, Wilson said.
She also said the site plan did not adequately address how the facility will handle fires.
“There will be fire hazards. We are taking about a lot of gasoline on site,” Wilson said.
Wilson also pointed out that some of the facts adopted by the planning commission — when it made its decision regarding TVRR — were sometimes not supported by evidence in the record or some of the references in the record did not adequately to support the findings.
Finally, she said the appeal is also based on what the group asserts is a change of numbers. The traffic study, which was part of the record in the site review, spreads the traffic out over several different routes, Wilson noted, not to a specific pathway. Alameda Drive and Southwest 18th Avenue has been designated as the main freight route to, and from, the bio-refinery site, and there is concern about additional truck traffic along the roadway.
In his response, John Hamilton, TVRR project manager, said the company has complied with all the criteria in the site review.
Hamilton said the traffic study concluded the siting of the bio-refinery will have no impact on road function. As far as the fire danger, Hamilton said the issue had already been addressed and solved.
“Fire and police protection is available. We can control the fire hazard. We will be there 24 hours a day. We are using tanks with floating tops so no air will be trapped. It is more of a controlled hazard,” he said. “There is no new proposal in the site review.”
The plant will be processing corn, wheat and barley, into food grade products and changing the process will allow the company to produce more, he said.
The federal codes are the same for fermentation and gasification, he said, and it was always TVRR’s intention to produce fuel-grade ethanol. Hamilton said there is no such thing as food-grade ethanol.
“There is no need to revisit the decision of whether the process should be allowed,” Hamilton said. He said it was TVRR’s understanding of the new agricultural zone created by the planning commissions that it supports the processing of agriculture products.
Jon Jinings, Oregon Department of Land Conservation and Development, Bend office, testified it is his agency’s position that there was no change in use, or intensity of use, proposed by TVRR, and that it still meets the criteria of agriculture processing.
There was no other testimony from individuals in support for or against the appeal, although the county court chambers were packed by about 30 people, including those supporting either side of the issue, plus state agency people and county staff.
After the close of the hearing, Malheur County Counsel Stephanie Williams said the top criteria for the court to decide was whether TVRR’s proposal can still be construed as ag processing or if it was now chemical or thermochemical as claimed by the opponents. The motion by commissioner Louis Wettstein to uphold the planning commission decision was approved unanimously. Wettstein said the court needed to support the venture because if it did not, it would hurt the county’s chances of attracting other businesses.
“We need to move ahead on this,” Wettstein said after the vote. “With this decision, I think we are helping the community. It will be more difficult to get other companies, if we lose this facility.”
Malheur County Judge Dan Joyce agreed with Wettstein while commissioner Jim Nakano did not comment on the decision.
Hamilton said he was pleased by the court’s decision.
“I had hoped it would go this way,” Hamilton said. “The only concern we would have is if the county made substantial changes in the decision.”
Hamilton said that TVRR expects CCMC to file another appeal with the Oregon Department of Land Conservation and Development.
“We expect the group to appeal to LUBA,” he said.
CCMC spokesman Steve Penn said he was pleased the county court reviewed the issue.
“I think the County Court addressed some parts of our appeal and it was good they did listen,” he said.
Penn said CCMC will evaluate the court’s decision before making any longterm plans regarding an appeal to the Oregon Department of Land Conservation and Development.
“We will wait and see if our concerns are addressed,” Penn said.
Overall, Wednesday’s court session offered a mixed bag for CCMC, Penn said.
“We heard some good things and some bad things,” Penn said. “Being the decision is tentative, we really don’t know what will come out.”
Argus Observer reporter John Braese also contributed to this report.
