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Cinergy trial ends with split verdict

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A federal jury returned a verdict that a major energy company violated clean-air rules at a coal-fired power plant along the Ohio River in southeast Indiana.

The Southern District of Indiana verdict Tuesday night came following six days of trial and eight hours of jury deliberation in U.S., et al. v. Cinergy Corp., et al., No. 1:99-cv-1693. The decade-old case involves violations to parts of the Clean Air Act intended to make sure that older power plants that have major upgrades also meet more modern pollution limits with new permitting and emissions controls.

In a partial retrial of some claims after the original May 2008 verdict that went mostly in Duke's favor, jurors on Tuesday found that Duke - which bought Cinergy in 2006 - violated the law in two of its projects at three power plants and did not on four of those projects. Jurors found violations made in two repair projects at the Gallagher plant in Floyd County, while determining that four other projects at the Gibson plant in southwest Indiana and the Beckjord plant near Cincinnati, Ohio, did not violate federal clean air rules.

"I've got to say this about Indiana juries: They are really conscientious," said U.S. Department of Justice attorney Phillip Brooks, who was the lead plaintiffs attorney representing the government. "This was some really tough stuff, and they spent about eight hours going through it all. My brain is fried, but my hat's off to them."


A year ago, a jury found that Cinergy had violated the Clean Air Act at its Wabash plant in Terre Haute, but cleared the company on modifications made at four other plants throughout Indiana and Ohio.

This was the second time Duke has faced a liability on this issue, which dates to 1999. The Environmental Protection Agency alleged the energy company Cinergy had substantially upgraded some of its power plants in Indiana and Ohio without installing the proper modern pollution controls as required. The government alleged that Cinergy's work exceeded ordinary maintenance or repairs and required a permit at each of the plants before that construction began, but the company disagreed that the projects mandated any new pollution controls or permits.

U.S. Judge Larry McKinney late last year ordered a new liability trial after finding that Duke attorneys misled jurors about one of its witnesses, a former employee with knowledge of power plant improvements. The witness was paid a consulting fee, a point not revealed at trial; however, Duke attorneys at the same time portrayed government witnesses being experts paid for their testimony. That gave the government a second trial to prove its case, which started May 11 and ran through Tuesday morning when the jurors began deliberating about noon. A verdict announcement came about 8 p.m. from the court.

A Duke Energy spokeswoman could not be reached for comment about the verdict, but a spokeswoman for the Clean Air Task Force described this as an environmental victory despite the verdict falling mostly in Duke's favor.

"That simple math doesn't reflect the potential significance of this outcome for the people living near the plants and downwind of them," spokeswoman Ann Weeks said. " Those folks ... have had to breathe thousands of tons of additional air pollution that should not have been emitted since the company made the changes at the Gallagher plant that the jury has now found unlawful."

A remedy phase for these claims will be scheduled, and an order is expected soon on the previous remedy phase resulting from the rest of the verdict reached in May 2008 - that involved allegations at the Wabash plant in Terre Haute, where jurors found Cinergy had violated the law. Judge McKinney has not yet ruled on that remedy or scheduled the next remedy trial.

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  1. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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