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Second Cinergy trial starts in Indy

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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."

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  1. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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