The first lawsuit against Cass County because of a proposed zinc reclamation plant went into legal limbo on Friday.
Fulton County Circuit Judge Christopher Lee heard arguments then for and against the case going to the Indiana Supreme Court as a public lawsuit.
Should Lee decide it’s a public lawsuit, the Supreme Court would choose a special judge for the case to speed up its process through the court.
Lee wants proposed orders from both sides by Wednesday, each writing what that side wants the decision to be.
He set no date for his decision on those orders.
However, he’s likely to make it before Sept. 25, when the suit is scheduled to go to trial in his court.
The case was transferred to Fulton County because of possible conflicts of interest in Cass courts, and the county is the party that wants the case declared a public lawsuit.
The lawsuit centers around the Cass County decisions about the Waelz Sustainable Products Incorporated (WSP) plant, which would process electric arc furnace dust — a waste product created when steel mills recycle vehicles, appliances and other things made with steel — in two kilns that will separate zinc, iron and other substances in the dust using heat.
It is planned for northeast of the intersection of County Roads 300 South and 375 West.
Plaintiff Bryon Stephens filed the first suit, which argues the economic development agreement with WSP that the Cass County Commissioners and Cass County Economic Redevelopment Commission approved on March 2 should be voided because of the lack of public meetings and violations of the Open Door Law.
“Justice requires that the WSP Development be reconsidered in the light of day instead of accepting what the County did in the dark,” it states.
Jim Brugh, a Logansport attorney for Stephens, argued that Indiana’s public lawsuits statute, started in 1967, was specifically for public improvements, such as courthouses, schools, libraries and jails.
The law was created so that the building of those publicly open buildings can’t be stalled by a lawsuit.
“There is no case in Indiana law where a private construction … on private land is a public improvement,” Brugh said. “There is no test case on the subject of economic development.”
The economic development agreement with the county includes a bond of $23 million to be paid by proceeds of the Tax Increment Financing (TIF) district where the increase in taxes from the WSP plant’s being there.
In a TIF, a municipal body can borrow money to pay for improvements to infrastructure, such as adding roads or extending water or sewer lines, to bring in a business or improvements that will increase property taxes and the worth of the land.
Brugh said that tax increase is the citizens’ because it is tax money that will be owed, and the county isn’t building the plant.
“WSP is controlling its own private, corporate construction,” he said.
The county’s attorney, Michael Wukmer of Ice Miller in Indianapolis, argued that Brugh is looking at just aspects of the public lawsuit law.
“He’s not looking at the full statute, and he’s not looking at the full application,” Wukmer said.
Because the plan also includes part of a fire suppression system that will go into the Agribusiness Park, it does have public use.
The fire suppression system has been planned for years, and WSP was made public in March, according to county officials.
“There’s a private aspect of this, but it’s also in the public,” Wukmer said.
The plant would also generate revenue and jobs for the county.
Wukmer agreed with Brugh that the public lawsuit statute is to speed things through the court system and not delay matters.
He added that Stephens filed the lawsuit because he is trying to delay the WSP plant and doesn’t want it in the county.
There has been a contingent of Cass County residents against the plant.
The opponents of the plant claim it will put lead and mercury into the air through its smokestacks, but WSP officials maintain there’ll be little to no emissions from the plant’s smokestacks and materials are kept in the facility by creating a vacuum to keep the electric arc furnace dust in.
Although the trial is still set in Lee’s court for Sept. 25, there may be hearings before that.
“There are a lot of things that are going to happen before then,” Wukmer said after Friday’s hearing.
The county is requesting that Stephens post a $6 million bond in the case against court costs and any other legal entitlements for WSP.
Brugh said after the hearing that the judge declined to hear arguments about the proposed bond on Friday because that should be the decision of the judge who hears the case, which may still be Lee.
Stephens’ suit is the first of three suits filed against the county concerning WSP.
The second one started with a Lis Pendens notice filed by Royal Center Attorney John J. Schwarz in June on behalf of a number of plaintiffs to legally notify the county property will be involved in a lawsuit.
The property is the 54 acres of the Agribusiness Park that the Cass County Redevelopment Commission bought for $1.14 million in April 2015 for another project in the park and agreed to sell to WSP for $10 in June.
That property is east of two smaller properties WSP bought in March.
The third suit was filed last week by both Schwarz and Brugh as representatives of remonstrators at the July 15 public hearing at the redevelopment commission meeting.
The complaint of remonstrators is about Cass County Redevelopment Commission Resolution 2020-04, passed June 15.
The first contention is that the redevelopment commission can’t produce a required written order about approving the resolution while there was opposition to the matter.
“I don’t know if they did an order or if one exists,” Schwarz said.
The second is that the public hearing that the redevelopment commission held on July 15 was not actually a public hearing but a public comment session.
Schwarz said those who spoke weren’t allowed to ask questions or have them answered, and public speakers were only allowed one time to speak with a three-minute limit.
“The remonstrators were wholly denied a public meeting,” Schwarz said.
The Redevelopment Commission members also didn’t present proof of public utility and benefit if they passed the resolution favoring WSP.
The Pharos-Tribune has requested copies of all resolutions on the Redevelopment Commission agenda for July 15, sending an email to Cass County Director of Economic Development Christy Householder with a copy to Cass County attorney John Hillis.
On July 17, Householder responded to the email.
“The office is reviewing your request. We will begin compiling and reviewing the records, if they exist. We will notify you of the copy cost and will send you the records upon receipt of payment. If you prefer to pick up the records from the office, you may submit payment at that time,” it stated after reviewing the requested information.
The newspaper has not received any of the requested information.
None of the three suits names WSP, but the company’s attorneys have joined in on Cass County’s side and were present Friday.