Healthy Dubois County settlement declined by Council and Utility Service Board, counteroffer made
Wednesday night, the Jasper Common Council unanimously voted to reject a settlement offer from Healthy Dubois County, Inc. (HDC), Dr. Norma Kreilein, Rock Emmert, et al.
The rejection follows a similar decision by the Jasper Utility Service Board that occurred Monday evening.
Bingham Greenbaum Doll attorney Bill Kaiser, part of the team of lawyers representing the city and board in the lawsuit, presented the council with a counter settlement offer from Bingham Greenbaum Doll attorney Greg Neibarger, lead for the city.
The counter proposal requests that each party agree to pay its own legal fees and dismiss all lawsuits with prejudice — meaning they can’t be pursued again by either party.
This is the most recent development in the two-year-old legal battle between the HDC and the City of Jasper. HDC filed a lawsuit against the city and utility service board based on meetings that occurred among members of a volunteer group in pursuing a contract with Jay Catasein to convert the coal-fired power plant to a biomass power plant.
HDC contends the meetings held by the volunteer group, that is made up of volunteers from the council, utility service board, and city employees, should have been publicized and open to the public.
Based on health, environmental and economical concerns, current members of HDC were involved with an active volunteer group that opposed the city’s plans to convert the power plant and grow a renewable genetically engineered biomass crop. During deliberations, volunteers from the community regularly attended and raised concerns about the plant and over 50 health care professionals in Dubois County signed a petition opposing the plan.
The case went to trial in December of 2011 with Judge Lucy Goffinet presiding. Goffinet ruled in favor of the city and HDC appealed to the Indiana State Court of Appeals, who overturned Goffinet’s decision in regards to the volunteer group’s activities and importance in contracting the power plant conversion and operation to Catasein.
A second trial has been scheduled for January 14 of 2014 in Dubois County with Special Judge Sherry B. Gregg Gilmore presiding.
A formal letter sent to Neibarge from Too Keller, with the firm Keller Macaluso, LLC. the firm representing HDC, stipulates seven requirements for their proposed settlement.
-The settlement is to be a public agreement with no confidentiality;
-Jasper will reimburse my clients’ legal fees and expenses;
-Jasper will acknowledge (without specifics) that there were [Open Door Law] violations;
-Jasper will acknowledge that Jasper underestimated the potential health effects of
the biomass project;
-Jasper will acknowledge that although there were factual disagreements in this
case, Plaintiffs and HDC were neither untruthful in this process nor are they a
detriment to the community;
-The industrial/ commercial municipal biomass and/or coal combustion project at
1163 E. 15th Street, Jasper, Indiana has been abandoned;
-HDC will volunteer, in the spirit of saving taxpayers’ dollars, to assist Jasper in
grant-writing and securing funds from the EPA, Sierra Club, Heartwood,
Valleywatch, Hoosier Environmental Council, 3 50 organization, etc. for power
plant demolition costs and brown site clean up.
The letter prefaces the requirements with a statement alluding to the non-viability of the power plant as Catasein has yet to procure power purchase agreement for any electricity the 75 mW facility would produce using 85 percent natural gas and 15 percent miscanthus. Farmers have yet to come forward to grow the crop and Catasein has outlined that until power purchase agreements are in place he won’t pursue those contracts.
In the most recent power plant report (dated July 2013) provided to the utility service board, Catasein states:
Efforts continue to seek potential power purchase candidates. The MISO (Midcontinent Independent System Operator, Inc.) Long Term Power Market is struggling with impacts of EPA Regulations and prospect of low natural gas prices (for the next decade or longer) on economics of environmental upgrades to existing coal fired units and the construction of new high efficiency natural gas combined cycle units. Efforts are delayed until the litigation against the City and its impact are better understood.”
Kaiser told the board and council that the proposals shouldn’t be agreed to since the city did not violate Indiana Open Door Law. “The position of the city has been that they did not violate the open door law,” Kaiser stated. “Even if there was a finding in some shape or form that the city did violate the open door law, that will have in no way, shape or form have any impact with respect to the validity of the power plant project.”
According to Kaiser it could require another meeting but will not impact the lease at all. Kaiser advised the board that the worst case scenario in regards to the current lawsuit would be less detrimental than the requirements stipulated in the settlement letter and therefore they should reject the offer.
Additionally Kaiser informed the board that Keller has not provided information regarding HDC’s legal costs associated with the case. “We certainly tried to reach out to the plaintiff’s legal counsel,” Kaiser stated. “Unfortunately we have received no response. We have tried earnestly to try to determine what their legal expenses are so that we would be able to tell you that the dollar, or $100,000 or some kind of situation, but we have got no response.”
Board chairman Wayne Schuetter asked Kaiser about whether they have had any response about the other points in the letter to which Kaiser stated, “Unfortunately, we have got no response. We have emailed them, we have called them. After we got this settlement proposal we’ve got no response back.”
According to a message from Dr. Norma Kreilein, HDC’s attorney Keller had been in contact with the attorneys representing Jasper several times since the letter was sent on July 24. “Allegations that our lawyer did not respond to the city are not true,” Kreilein stated in an email. “In a conversation this morning (Tuesday), only one phone call, which was made yesterday, was not returned.”
Schuetter stated the economic impact of the facility and the opportunities in the future associated with it being located in Jasper supported the continued progress with the conversion. “For them to say we should abandon conversion, I think it is extremely narrow-minded. When we started this project, we were accused of not being able to think outside the box,” he said. “When they ask us to abandon the conversion, they haven’t taken a look at all the other possibilities this will bring to the city along those lines.”
Schuetter pointed out that the regulatory agencies and contingencies built into the lease that will protect citizens. He also pointed out a $5 million that will be set aside over the first three years of the power plant’s operation for the City of Jasper to decommission the power plant if something affects its continued operation.
“I have a little bit of a problem with that (settlement) because I think they are asking us to relinquish our responsibilities to the ratepayers of Jasper,” Schuetter said.
In an email from Norma Kreilein, she states the settlement was proposed because it “appeared obvious to HDC that the biomass plant seems to be burning itself out as two years have passed without a power purchase agreement. IMPA rejected the plant’s viability for standby use, and no one is committing long term to buy expensive, high-risk, inefficient, polluting biomass-generated electricity in the current market. According to his repeatedly published timeline, Jay Catasein will not approach farmers until after such a long-term power purchase agreement is finalized. Nonetheless, Mr. Schuetter conveniently faults HDC for these farmers not “coming forward” to invest thousands per acre to grow miscanthus in a risky, unconfirmed market. While Jasper officials have been blaming HDC and its Open Door Lawsuit for their ills, perhaps potential partners and purchasers realize the liability and risky business plan that Jasper refuses to acknowledge. While government transparency is still a critical issue, as informed, educated citizens, we firmly stand by our allegations and find that although our treatment by city officials was demeaning and deplorable, the necessity of the lawsuit specifically to oppose the biomass plant appears to be lessening. We offered a settlement because it was the right thing to do, just as opposing the plant and filing the lawsuit were and are the right thing to do. We are waiting for Jasper officials to represent all citizens, not just their own interests.”
In regards to the state of the discovery phase of the lawsuit, Kaiser informed the board that the city will provide HDC with the requested information and depositions regarding the volunteer groups within the month.
The city has withheld the information while waiting for a ruling on information regarding the requested information for the executive meetings that were held. The city is requesting that those meetings not be included in the depositions since they were not included in the appeal decision.
Additionally, information that attorneys for the city had requested is expected from HDC by the end of the month as well.
HDC began requesting the information in January of this year and has been stymied by the city’s contention that the voluminous amount of records requests they have received are too extensive for the city to be able to adequately handle.
Can anyone advise if based upon the State of Indiana public disclosure laws if the City of Jasper would be required to disclose what they have spent so far in attorney fees for this law suite?
Are we going to spend hundreds of thousands of dollars of the tax payers money and have nothing? Kind of like the library?
Has the city ever provided a list of farmers whom have publicly or privately stated they will grow the Miscanthus grass?
Has the results of the Miscanthus grass test plot ever been made public? If not it that information also available through freedom of information laws?
If federal subsidies for clean energy “wink-wink” are no longer funded by the federal government will this power plant still be viable financially.
An information request form can be filled out at the city anytime. Through Attorney Kaiser, who spoke in generalities, the city had spent roughly $200,000 at the end of 2012. I haven’t posed that question to the city or their attorneys since December of 2012.
The city is not responsible for finding farmers to grow the grass. According to the lease agreement, Catasein is responsible for pursuing those contracts. His most recent report to the city states none are in place and he cites the continued legal battle as the reason.
Jasper Utilities Manager Bud Hauersperger reported the miscanthus grass test plot put in place on private farmland west of Huntingburg with the assistance of Mendel Biotechnology Inc. was abandoned by Mendel because they considered it a success. Mendel abandoned several other successful test sites (what Mendel considered as successful) throughout the United States at the same time. The utility service board discussed maintaining the test site in Dubois County to demonstrate the crop to individuals and interested farmers.
I wonder what Mendel considered a success? Since they have a financial interest in it succeeding I am sure they would hired an independent company or perhaps an college that has a strong agriculture program such as Purdue to decide success or failure? I consider my last post a success. I only misspelled a few things and I believe my grammar was not too bad:)
Wow $200k as of last year. Throw in an overpriced house for $315k and we are over a half a million dollars?
I am not sure it would be from the same source of money but those taxpayers dollars could have paid for a lot of sewer and storm water projects which the city wants to raise our rates to pay for.
There has been no public disclosure of the cost of growing the miscanthus plot in Huntingburg. However, to begin with, estimates of planting miscanthus range from $500->thousands per acre on the internet and about half of the Huntingburg plot had to be replanted. you do the math. Having grown up on a farm, I noticed even before the health concerns that no farmer in their right mind would grow something that took over 3 years to yield and cost more than the price of the land. But I was shot down by various people who insisted that farmers should be able to take that risk. Fine, but the public should know just how much of that is biomass subsidies paid for by the government because that is relevant to the total cost of this project. And since it is three years for the yield, what happens to the future of the crop if the plant fails? The USB (which contains a former banker) and Twisted Oak do not seem to see the risk of this. This whole thing makes Enron look like a good investment. The fact that it is funded by venture capital instead of a bond issue should alert to the risk. Farmers and children stand to lose the most. Besides the health risk, if the plant actually fails or blows up (have you checked on the combustibility of grass?) then they have to somehow figure out how to plow up an 8 ft or more root mat and bail out to the government on the price of planting a crop that is not marketable. Jasper officials response is generally to not answer, change the subject, or say it is not their concern. They make it sound like a gold mine but if it sounds too good to be true. . . .