City faces hurdles to recoup biomass costs

By CANDY NEAL
Herald Staff Writer

JASPER — So far, the City of Jasper has sunk almost $600,000 into fighting a lawsuit that claims city officials violated the Open Door Law.

That same law makes it difficult for the city to get back the money it spent on litigation should the city win the case, according to a media attorney familiar with the law.

The Jasper Common Council and Jasper Utility Service Board have been accused by Healthy Dubois County of violating the state law with six executive sessions and with a volunteer group of common council, utility service board and city officials that negotiated the details of the lease with Atlanta-based Twisted Oak Corp.

Healthy Dubois County et al filed its lawsuit about the executive sessions the day before the two boards agreed to lease the city’s power plant to Twisted Oak on Aug. 5, 2011. Twisted Oak’s plan is to operate the plant as the Jasper Clean Energy Center, a biomass plant that would burn natural gas and miscanthus grass. Healthy Dubois County members are concerned about the health risks that could come from the plant.

The original ruling, in January 2012, was in the city’s favor, but was appealed by Healthy Dubois County in June 2012. The Indiana Court of Appeals ruled in the activist group’s favor in November 2012. The appeals court ruled that the lower court should have approved at the December 2011 trial the motions and amendments Healthy Dubois County made to incorporate the volunteer group into its lawsuit. The appeals court ordered a new trial, which is scheduled for January.

If the City of Jasper ultimately wins the case, it would be difficult for the city to recoup its litigation costs from the plaintiffs, said Steve Key, executive director and general counsel for the Hoosier State Press Association.

“If the citizen (as the plaintiff) prevails, then the court shall award reasonable costs and expenses,” Key said. “If the defendants won, they would have to convince the court that the lawsuit was frivolous.”

He is basing that on the Open Door Law in the Indiana Code. The law states that the presiding court will award “reasonable attorney fees, court costs and other reasonable expenses of litigation” if “the defendant prevails and the court finds that the action is frivolous and vexatious.” In the same section, the law states simply that the costs and expenses will be awarded to the plaintiff if “the plaintiff prevails.”

“The reason for the different standard,” Key said, “is that the Legislature wants to make sure that citizens are not discouraged to go to court to uphold their right of access to documents or to a meeting.” Key worked with legislators in 1998 to get those designations included in the law.

At this time, Jasper Municipal Utilities is taking the money spent on the litigation costs from its savings, General Utilities Manager Bud Hauersperger said at utility board meeting this week. The board agreed to hire a firm to conduct a rate study to determine if electric utility rates need to be adjusted. The city’s legal expenses from the lawsuit will be factored into the study, Hauersperger said.

Lecture and discussion

Pediatrician Dr. Norma Kreilein, president of Healthy Dubois County, gave a public lecture at Vincennes University Jasper Campus on Tuesday evening based on the presentation she gave in September 2012 in Washington, D.C., as part of a congressional briefing on biomass incinerators and human health.

For the first hour and a half of Tuesday’s presentation, Kreilein talked about the pollutants that come from biomass incinerators and the damage those pollutants cause to vital organs such as the brain, heart and lungs. She emphasized that the pollutants are especially dangerous to children, whose organs are not yet fully developed. She also talked about the pollutant dangers she and Healthy Dubois County see coming from having a biomass plant in Jasper.

The second hour and a half was a debate back and forth of members of Healthy Dubois County joined by supporters in the audience versus some city officials in attendance — Jasper Utility Service Board member Dave Hurst, General Utilities Manager Bud Hauersperger and Mayor Terry Seitz — about the city leasing the local power plant to Twisted Oak Corp. of Atlanta. Twisted Oak plans to operate the existing Jasper power plant as the Jasper Clean Energy Center, a biomass plant that would burn natural gas and miscanthus grass.

Healthy Dubois County has a pending lawsuit against the Jasper Common Council and city utility board claiming that the boards violated the Open Door Law with six executive sessions and with a volunteer group of common council, utility service board and city officials that negotiated details of the lease with Twisted Oak.

Kreilein’s presentation at the congressional briefing was titled “Air Pollution Effects on Human Health — Children and the Inflammation Response.” The presentation can be viewed online at http://www.biofuelwatch.org.uk/2012/congressional_briefing.

Contact Candy Neal at cneal@dcherald.com.




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