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Clark County cement plant loses appeal to burn waste fuel

April 18, 2019

A century-old Clark County cement plant that has unsuccessfully sought county permission for almost five years to transition its plant from burning coal to burning waste fuel lost its appeal Thursday of local rulings against its plans.

The Indiana Court of Appeals affirmed a trial court that upheld the Clark County Board of Zoning Appeals’ denial in Essroc Cement Corp. v. Clark County Board of Zoning Appeals and Sierra Club, 10A04-1709-PL-2199.

Essroc raised numerous issues on appeal that were rejected in the COA’s 38-page unanimous order, including a private letter from the county’s planning director that said Essroc could transition to liquid waste derived fuels under its present zoning. That letter later was revoked 17 months later, when Essroc was told it would need a variance or to rezone its property to use the fuel, which is “an amalgam made of such liquids as household cleaning products, oils, nail polish, nail polish remover, perfume, paint, and ink,” Judge Melissa May wrote.

“To burn LWDF, Essroc needs a permit from the Indiana Department of Environmental Management … , and to obtain that IDEM permit, Essroc needs a letter confirming it has CCBZA approval for converting from coal to LWDF.”

But after the zoning board denied Essroc, the company went to Clark Circuit Court and similarly was unable to obtain an order for the local permission it sought. The Court of Appeals affirmed the trial court Thursday.

“The CCBZA correctly determined the (Clark County Zoning Ordinance) permits the storage, processing, and recycling of hazardous waste as alternative fuel for production only in the M3 zoning district. Accordingly, such activity is not available as an accessory use in the M2 zoning district. Because the first letter sent to Essroc was legally erroneous, Plan Commission staff had the authority to revoke that letter with a new letter that corrected its original error of law, and Essroc was not entitled to notice and a public hearing before that second letter was issued,” the panel concluded.

“As neither equitable estoppel nor federal pre-emption were raised before the CCBZA, those issues are unavailable during judicial review of the CCBZA’s decision,” May concluded. “As all of Essroc’s assertions of … error fail, we affirm the decision of the CCBZA.”

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