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Thursday, August 26, 2004

Environment - Gibson Generating Plant Multi-Jurisdictional Issues

The is the continuing story of the Gibson Generating Station, located in Owenville, Indiana (Gibson County), across the line from Mt. Carmel, Illinois. The Illinois Attorney General announced August 9th:

Following several dramatic and possibly harmful air pollution incidents that created a hazy blue film over the small town of Mt. Carmel, Attorney General Lisa Madigan and Wabash County Stateís Attorney Terry Kaid today filed a lawsuit against a nearby Indiana coal-fired power plant based on several releases of dangerous emissions. * * *

Madigan and Kaidís lawsuit names PSI Energy, Inc., an Indiana corporation, and Cinergy Power Generation Services, LLC, a Delaware corporation, which together own and operate the Gibson Electrical Generating Station. Located on the east side of the Wabash River, the plant is approximately two miles south of Mt. Carmel.

While Madigan and Kaid said Cinergy has been cooperative, they are filing the lawsuit to ensure that if necessary, a court could enforce an agreement on short-term operating conditions; a long-term solution to the operating problems; and the payment of appropriate penalties for violation of Illinois air pollution laws. * * *

Madigan and Kaidís lawsuit, filed in Wabash County [Illinois] Circuit Court, seeks to prohibit PSI Energy and Cinergy from committing future violations of the Illinois environmental laws and seeks civil penalties for the violations. Madigan and Kaidís suit also seeks to prohibit PSI Energy and Cinergy from operating the faulty stack at Gibson Station until the pollution control technology has been repaired and inspected by the Illinois Environmental Protection Agency (IEPA).

Readers may recall several earlier ILB entries on this issue, including: 7/23/04 (3rd item) and 8/12/04.

Yesterday the matter went to court. The Princeton Daily Clarion reports today:

MOUNT CARMEL, Ill.-A set of voluntary protocols developed to mitigate the effect of pollution control equipment testing at Gibson Generating Station is enforceable in court with fines, if necessary.

Circuit Judge David Frankland Wednesday granted the Illinois Attorney General's request for a temporary injunction against Public Service Indiana, parent company of the Gibson County coal-fired power plant.

The order uses the reporting and testing protocols developed among Cinergy, USEPA, IEPA, Indiana Department of Environmental Management and Mt. Carmel officials in recent weeks as a safeguard until the power plant finds a way to keep one of the selective catalytic reduction (SCR) units from emitting sulfuric acid into the atmosphere.

The protocols were voluntarily negotiated with those representatives after the Illinois Attorney General threatened to sue the company for polluting Illinois air. Shortly after the informal agreement, which Cinergy officials sought to to formalize among the agencies, the suit was filed in Wabash Circuit Court. * * *

"The informal agreement (protocol document) recognizes the problem as a serious hazard to public health and welfare," said the judge. "To PSI's credit, they recognized the problem and attempted to take steps to solve it," he told lawyers. "The protocols seem to be working. But there needs to be an assurance that the protocol will be consistently followed....This is not a trial on the merits, it is a preliminary injunction." * * *

Attorneys for the power plant initially argued notice of the suit wasn't properly served, and also argued that the IEPA pollution law cannot override the federal Clean Air Act, which they said requires the pollution control work that caused the sulfuric acid side-effect, but that motion was denied. "IEPA cannot regulate an Indiana facility by litigation," argued attorney Robert Olian. Olian also asked the judge to enjoin USEPA and IDEM in the case to prevent the company from being caught in conflicting views of what ought to be done, but the motion was denied.

The Mt. Carmel Illinois Daily Republican Register reports:
After nearly three hours of arguments and testimony in Wabash County Circuit Court, Circuit Judge David Frankland Wednesday evening granted the Illinois Attorney General and Wabash County State's Attorney a preliminary injunction, enforcing an Aug. 2 operating agreement for PSI/Cinergy's Gibson Generating Station. Known as the Protocol Agreement, that document outlined measures Gibson Station would follow for operating selective catalytic reduction (SCR) equipment at Units 4 and 5 of the coal-fired power plant, located about two miles from Mt. Carmel. * * *

The defense made the argument Wednesday that the company had invested some $240 million on SCR units, money spent to comply with federal Clean Air regulations mandating removal of nitrogen oxide, or NOX, from the air. Defense Attorney Robert Olian called the investment "not insubstantial," and pointed out that two other SCRs operating at the station had not been producing the sulfuric acid mist. Olian pointed to the federal Clean Air Act specifically, saying it was designed to pre-empt any "multiple regulatory legislation" the company could face as it attempted to comply with federal, Indiana and Illinois law. * * *

Following Wednesday's decision, Cinergy News Media Relations Manager, Corporate Communications, Angeline Protogere told the Daily Republican Register, "We continue to believe that the court is not the right venue for addressing this issue. We had made a lot of progress when voluntarily agreement had been reached by all the parties," she said, adding "...nothing could have happened in this court today that would change how we operate the station." The Cinergy spokesperson assured, "We will continue to follow the Protocol (Agreement)."

Posted by Marcia Oddi on August 26, 2004 07:22 PM
Posted to Environmental Issues