County delays decision on hiring of new consultant for ASG hearing

DAYTON -- Lyon County Commissioners have delayed until Oct. 3 a decision on whether to spend $25,000 for an independent consultant to assist with the county's ongoing legal battle against Advanced Specialty Gases.

The board was hesitant to grant District Attorney Leon Aberasturi's request for the $25,000 before knowing for certain if another revocation hearing would be necessary and prior to trying to negotiate a possible settlement with plant officials. Aberasturi said the new consultant was necessary to review testimony and evidence presented at the October 2001 hearing that resulted in revocation of the special use permit for the nitrogen trifluoride production plant.

Interrupting Commissioner Bob Milz' motion to approve Aberasturi's request, Commissioner David Fulstone expressed strong opposition to spending any additional money to hire someone to interpret their testimony from the first revocation hearing for them.

"I am absolutely opposed to this. You are talking about throwing good money after bad," Fulstone said, referring to the $50,000 the county spent for SECOR to investigate the plant's operation in preparation for the first hearing in October 2001.

"SECOR basically said it could be operated safely. Other people said it couldn't. If you are asking to hire someone to come in and tell me what those people told me -- I don't need that. And I am not willing to spend $25,000 of the county's money to do that."

The county is appealing District Court Judge David Huff's decision overturning the October revocation. Huff's order also asked the county to pursue a possible negotiated settlement

Milz agreed it was not good for the board to pay for a consultant, but said, "The judge should have understood exactly what the 1,900 page revocation report said, although he has shown he either did not understand it or did not take the time to."

Aberasturi also put the blame on Judge Huff for the county's predicament.

"I would be all for negotiations and agree it would be a waste of $25,000 (before knowing if a hearing is necessary). But I am in a catch-22 and I have to be prepared for everything. The judge should have understood. To force us into this is wrong."

The board hired Attorney Keith Loomis two weeks ago to represent the county's position, but negotiations had not been initiated as of Thursday.

Fulstone urged no decision be made until it is seen just what results from them.

Commissioners set a second hearing date for December if county's appeal of the Judge's order fails and/or a negotiated settlement is not reached.

With Commissioner Chet Hillyard facing an opponent in the November General Election, Aberusturi said a December hearing date was preferred in lieu of waiting until January or later.

"There could be a change in board membership come January. That is just one more argument ASG has in terms of procedural due process. They could argue they did not get a fair shake because it's a different board," he stated.

At the October 2001 revocation hearing, Hillyard read a 24-point motion in support of revocation and was one of three votes in favor of it.

Aberasturi said the county would also need separate legal counsel to advise them on the process for the next hearing.

'The judge's order stated there was an apparent conflict with my office advising you. It's something else I disagree with the judge on, but we have to deal with the judge's order."