http://www.heraldandnews.com/articles/2004/10/01/news/top_stories/top2.txt

Legal problem delays Cob site decision

Friday, October 1, 2004 1:51 PM PDT

Published October 1, 2004

By BROOK REINHARD

The state agency responsible for deciding the fate of the Cob Energy Facility has postponed its decision.

The Energy Facility Siting Council was to meet in Klamath Falls Oct. 20-21 to decide whether to site the Cob facility in the Langell Valley, 25 miles east of the city.

A state official said there was a problem with the recommendation from state hearings officer Virginia Gustafson that the plant be sited as proposed by Peoples Energy of Chicago.

The recommendation is one of the final stages of the state's siting process, and the council can't proceed without it.

On Wednesday, the state Department of Justice said that Gustafson's recommendation failed to use the proper legal standard in considering evidence.

Gustafson must now reconsider portions of her recommendation, and power plant backers and opponents will have another chance to dispute her recommendation. As a result, state officials said, the siting council's meeting will be postponed until at least November.

Richard Whitman, a lawyer at the Oregon Department of Justice, could not be reached by the Herald and News, but he did leave a message with Cob opponent Save Our Rural Oregon.

Whitman said Gustafson used a legal standard of "substantial evidence" in making her ruling. That was wrong, he said, because it did not apply a strict enough legal interpretation. The correct legal standard should have been "preponderance of evidence," he said.

"Basically, we are going to deal with this by having the hearing officer reconsider those portions of the order where there are disputed issues, factual issues," Whitman said. "This means that the hearing date for later in October down in Klamath Falls is going to be postponed as well."

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