Second Cinergy trial starts in Indy

A second clean-air violation trial is underway in Indianapolis about whether coal-fired power plant modifications triggered a need for new pollution-control equipment at facilities in Indiana and Ohio.

Expected to last six to 10 days, this trial in the decade-old case began Monday in U.S. District Judge Larry McKinney's courtroom in the Southern District of Indiana. A total of 84 prospective jurors were vetted before 10 were seated for the trial. Each side's attorney made an hour-long opening argument before jurors were dismissed for the day.

U.S., et al. v. Cinergy Corp., et al., No. 1:99-cv-1693, includes the states of Connecticut, New Jersey, and New York as plaintiffs, as well as the Hoosier and Ohio Environmental councils. Dozens of attorneys are listed on the case, including local counsel from Taft Stettinius & Hollister in Indianapolis: Scott R. Alexander, Jayna Morse Cacioppo, Robert R. Clark, and John D. Pappageorge.

The suit dates to 1999, when the Environmental Protection Agency under the Clinton administration alleged that energy company Cinergy – bought by Duke Energy in 2006 – substantially upgraded six power plants in Indiana and Ohio without installing required modern pollution controls as required by law. The government alleged that Cinergy's work exceeded ordinary maintenance or repairs and required a permit at each plant, but the company disagreed.

In what was dubbed the nation's first case to go before a jury on this issue, the first two-week trial in May 2008 in Judge McKinney's courtroom resulted in jurors finding that Cinergy had violated the U.S. Clean Air Act at its Wabash plant in Terre Haute. But they cleared the company regarding modifications made at four other plants in Indiana and Ohio. On balance, it was a victory for Duke.

But after that verdict, attorneys discovered a previously undisclosed piece of discovery that raised questions about the verdict and resulted in Judge McKinney ordering a new liability trial.

Most of the previous orders and rules in place apply to this second trial, and both sides are focusing on testimony from experts and engineers about the power plant projects and what affect they see that having on overall emissions. The case boils down to how the company analyzed possible pollution effects prior to starting construction in the 1990s.

During opening statements, attorneys used color photos of the power plants and charts with emission information to describe what is being debated in this case. U.S. Department of Justice attorney Phillip Brooks said evidence would prove that in repairing faulty components in major energy-generating units that could have shut down completely or at a lower level, Cinergy increased emissions by more than a standard 40 tons as a result of improvements done at the plant and that required a permit and pollution controls.

"There's nothing wrong with fixing these things, but there are rules in doing that," he said. "That's what is at issue here: whether the company followed the rules."