February 18, 2009 11:34 pm
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By Susan Redden
sredden@joplinglobe.com
Factors ranging from recent publicity to Internet postings to a new Carthage odor ordinance make it impossible for Renewable Environmental Solutions to get a fair trial in Jasper County, an attorney for the company argued Wednesday.
Stan Sexton, representing the Carthage biofuels company, argued that a court in some other county should hear the lawsuit filed by a Carthage resident who contends that odors from the plant make it a nuisance, and that she and others are entitled to damages as a result.
Sexton cited what he said was “pervasive hostility” and prejudging in the case by Carthage officials and residents. Because of that, he said, a change of venue should be granted.
Rhon Jones, representing plaintiffs Cynthia Sundy and Tricia Orr, noted that the court earlier had overruled a similar motion as premature and said the same was true in Wednesday’s argument.
“What this boils down to is whether RES can get a fair jury, but we’re not ready to pick a jury,” he said in an hour-long hearing before Circuit Judge David Dally in Joplin.
Dally said he would rule on the motion within 10 days.
Ironically, the judge’s son, Carthage City Attorney Nate Dally, figured in comments during the hearing. Sexton noted that the younger Dally was the author of an ordinance recently adopted to regulate odors in Carthage. Judge Dally, a Carthage resident, was city attorney for more than 20 years.
In addition to comments from Carthage city officials, newspaper stories and Internet postings, Sexton pointed out that RES had been cited by city officials in connection with a survey distributed by the Missouri Department of Natural Resources seeking residents’ comments on odors and odor sources.
“RES has been so publicized, and the publicity has been so negative,” Sexton said. “People in Carthage attribute all the odor to them regardless of the sources.”
He said the company had spent $4 million on odor controls, including a thermal oxidizer and two additional scrubbers, and that testing done for the case shows that the plant is not the odor source.
Sexton said poultry byproducts from Butterball are the feed stock for RES, and that the DNR at one time cited Schreiber Foods for an odor violation.
“But they are never mentioned when people in Carthage talk about odors,” he said. “There’s no way to create a level playing field in this situation. DNR has received complaints about RES when the plant wasn’t in operation.”
Said Jones: “Nothing has changed since the earlier ruling, and we’re nowhere near picking a jury.”
He said members of a jury would not necessarily be Carthage residents. He noted affidavits in the court record from Carthage residents saying they were aware of media reports but did not believe Carthage had an odor problem.
The real standard, Jones said, “should be actual prejudice,” citing a lawsuit arising from the collapse in 1981 of overhead walkways at the Hyatt Regency Hotel in Kansas City.
“That was tried in Kansas City,” he said. “If that didn’t mandate transfer, this one shouldn’t.”
Class action
The case has been filed as a class action. If that is approved, it would allow claims to be sought by all residents who allegedly have been affected by odors from the plant.
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