A federal jury in Indianapolis today dismissed 10 counts brought by the Justice Department and U.S. EPA against Cinergy Corp. that claimed the utility violated the Clean Air Act by making illegal modifications to its fleet of power plants in Ohio and Indiana.
The verdict all but resolves an enforcement case that dates back to 1997, when the Clinton administration launched an aggressive legal campaign against U.S. coal-fired utilities under the Clean Air Act's New Source Review provisions.
"By and large, the jury rejected the government's NSR enforcement theory," said Scott Segal, executive director of the Electric Reliability Coordinating Council, which represents utilities.
When filed, the government alleged that Cinergy had violated federal rules governing power plant modifications in roughly 50 instances involving seven power plants. The Indiana jury ultimately heard arguments on 14 counts and ruled against the government on 10 counts.
The jury awarded plaintiffs relief on claims involving four projects at the Wabash River Generating Station in Terre Haute, Ind., which is scheduled to cease operations by 2012.
The Indiana judge overseeing the case last October dismissed several of the government's claims involving allegations that the Cinergy plants violated federal rules governing particulate emissions.
But Justice Department lawyers -- joined by plaintiff-interveners from New York, New Jersey and Connecticut and two environmental groups -- were allowed to continue with arguments that the plants, now owned by Duke Energy, should be forced to install new pollution controls for nitrogen oxides (NOx) and sulfur dioxide (SO2).
Segal, the industry lobbyist, characterized the verdict as a sensible ruling based on what a typical power plant owner would view as a routine modification, as opposed to what EPA and others had charged was a major modification warranting new pollution controls.
"The reality is clear: Power plants are made up of thousands of components," Segal said. "Replacing one of those components rarely results in increased emissions."
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