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.

In the civil case hearing Wednesday, attorney Ann Alexander of the Illinois Attorney General's Office and State's Attorney Terry Kaid, argued for the injunction, saying the state wanted court supervision of the "handshake" protocol agreement, which is intended to help prevent possibly harmful air pollution in the Mt. Carmel area, after several releases from the plant in June and July of sulfur trioxide (SO3). The SO3 turns into a sulfuric acid mist when mixed with moisture in the atmosphere, state officials asserted.

Arguments

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.

Illinois Attorney Ann Alexander noted the NOX mandates are company-wide, and that a decision was made to install SCR pollution controls at Gibson Station.

She also said the pollution controls themselves were not federally mandated, and indicated the State didn't care how the company removed NOX from the air. "...But first make sure the refuse from this plant doesn't land in Illinois."

Testimony

Taking the stand Tuesday was Illinois EPA's Ed Bakowski, field operations manager - bureau of air, who told the court that the Illinois agency first learned of problems with SO3 emissions by Gibson Station in mid-June. The utility told IEPA officials "the plant is experiencing difficulties" in the start-up of new pollution control technology, and Bakowski said local news media had quoted the power company as saying it was "having some problems."

Bakowski said he and other IEPA officials attended a meeting on July 26 at Gibson Station "orchestrated" by the U.S. EPA and Indiana Department of Environmental Management (IDEM), as well as other officials including Mrs. Alexander of the Illinois Attorney General's Office.

The IEPA field operations manager said the utility company explained its plans to look for solutions to the air emission problems, including both long-term solutions as well as measures "for the short interim period" while the company tries to correct issues with the SCR on Gibson Unit 5.

He said a separate group of officials, including at least one representative of each entity represented that day, he believed, held a second meeting to develop the protocol for operation of SCRs on Units 4 and 5.

"The Protocol was finally agreed to on Aug. 2," Bakowski said. He testified, "I don't have any understanding it's a binding agreement."

He indicated that for two days after the civil suit was filed in Wabash County, the company stopped sending daily reports assured in the protocol. The reports did, however, resume.

Questioned by PSI attorney Robert Olian, the IEPA official said potential health threat of the smoke plume contents varies from individual to individual. "Certain individuals are more susceptible (to health symptoms) than others."

As far as concentrations of SO3 to have health effects, the witness said those can be "in the order of tens of micrograms per cubic liter."

The state's first witness was City of Mt. Carmel Economic Development Director Bill Maples, who spent 45 minutes under questioning of Cinergy attorneys and state's attorneys about a key role he had in coordinating the City of Mt. Carmel response to the air pollution issue.

Maples, who has served the city's economic development office for more than 8 years, holds a bachelor's degree in urban planning and environmental studies from the University of Minnesota.

He testified he learned of the air pollution question on June 17, and began photographing the smoke plumes from Cinergy smoke stacks that are visible from many Mt. Carmel locations.

"The first time I noticed it was while coming to work in Mt. Carmel from the west, from Bellmont area, when a brown plume was arching over the river heading through downtown Mt. Carmel. That was the first week of June... I had never seen this before."

Maples responded the Gibson Station smoke plumes used to appear like "white steam," rising and then dissipating.

He described the early June plume event as creating a hazy downtown, "like something was on fire," and reported he later had watering and itching eyes, and started coughing.

"I noticed (the plume) doesn't get up in the air anymore," he said.

Maples said after power plant spokespersons reported the "side effect" problem occurring with acid aerosols, beginning June 17 he took pictures of the smoke plumes at least twice a week from various locations.

The court spent 20 minutes reviewing several pictures, including ones taken from South Elementary School's parking lot, and also aerial photos taken on July 19. Approaching the witness stand with a hand full of photographs, Defense Attorney Olian had Maples point out which photos were "hazier" than others.

Smoke emission plumes sometimes are blue and then turn brown, Maples testified Wednesday.

Maples agreed that there had been no serious problems with smoke plumes around Mt. Carmel's populated areas since the Protocol Agreement took effect. He did say that "for the past two days" the wind was blowing toward Mt. Carmel, and answered repeated questions concerning the dates of the various photographs, that he did not know if the SCR technology was on or off at the time the pictures were taken.

City Treasurer Peggy Hooper, an 18-year City of Mt. Carmel employee, testified that enroute to work on July 21 she saw considerable haze close to City Hall. "You could smell it. You could taste it... and it caused burning eyes and a scratchy throat." She said once inside the air-conditioned office building, the symptoms ended.

Judge Frankland sustained a defense objection that the witness not be permitted to describe five or six phone calls she received in 15 to 20 minutes that July 21 morning at City Hall.

Mt. Carmel City Commissioner Mike Witters told the court the pollution issue was discussed at several city council meetings attended by Cinergy/PSI representatives, and the July 21 pollution event also was discussed.

Judge's comments

"Evidence is compelling as to the fact of the problem," Judge Frankland remarked in granting the preliminary injunction. He said actions had been taken by PSI to attempt to take steps resolving the problem and working to maintain the status quo informally until the problem is remedied.

The judge said the reason for the temporary injunction being sought - potential for danger to the environment and to ensure maintenance of the status quo- had been shown by the state, and he referred to the power plant emissions as a possibly "serious hazard" to the environment, public health and the welfare of citizens.

He said both parties' proactive steps have been partly successful. "...but I do believe there's a reasonable potential for danger," he said.

Cinergy attorneys argued early in the hearing that the case was flawed in the entities named, and also argued that the U.S. EPA and IDEM also should be parties to the case since they are part of the Protocol Agreement and regulatory agencies for Gibson Station.

"There's been no harm," attorney Olian asserted. "There's no indication there will be harm."

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)."