Commissioners respond to court's order to review ASG revocation

DAYTON -- Lyon County commissioners said they plan to appeal a court decision negating their revocation of a gas manufacturing plant's operating permit.

The appeal is the commissioners' response to a Third Judicial District Court order to either negotiate an agreement with Advanced Specialty Gases or come up with more substantive facts to support revocation.

The county will pursue a negotiated settlement while filing a motion with Judge David Huff asking him to certify the order as final.

District Attorney Leon Aberasturi said if the judge certifies it as a final order, an appeal can take place. If he does not certify it, no appeal can take place and the county is bound by the negotiating order of the court decision.

"It is unclear whether there is a final order. There is no time line on how long he has to rule on it and (Judge Huff) has a lot of discretion on whether he certifies it or not. We will have to argue that certain findings of the order were final," he said following a Thursday closed session with the county commissioners.

"If you look at the order a lot of it is confusing," Aberasturi said. "We've been having a difficult time figuring out exactly what the order does or does not do."

If no negotiated settlement is reached, another revocation hearing will be held in December.

"If negotiations fail they will hold a whole another hearing in December and the commissioners will again have to make a decision on whether to revoke, reissue a permit with limitations or let them be," the district attorney said.

Aberasturi said he was caught off guard by Huff's decision.

"I thought with the extensive testimony given at the hearing it would have supported the decision to revoke," the district attorney said.

Advanced Specialty Gases President Michael Koonce said he pleased with the Aug. 27 court decision.

"(Judge Huff) validated our position. His opinions are in line with our belief that the evidence does not support revocation of our permit," Koonce said. "The court has given the county a second chance. I hope they will come to some resolve and take the right action, rather then an illegal one."

In January 1996, Advanced Specialty Gases was granted a special-use permit to manufacture nitrogen trifluoride and purification of fluorocarbons. It included the on-site storage of hydrofluoric acid.

The plant has been closed since a July 2000 explosion in the nitrogen trifluoride distillation processing room. Hydrogen fluoride, a potentially dangerous gas, is used in the process, but was not involved in the July 2000 incident.

Following a three-day public hearing last October, the commissioners voted 3-2 to approve Commissioner Chet Hillyard's motion to revoke the permit.

Citing the hearing as inadequate and prejudicial, the company sued the county for $5 million and asked the district court to overturn the decision.