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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. Good luck, but as I have documented in three Hail Mary's to the SCOTUS, two applications (2007 & 2013),a civil rights suit and my own kicked-to-the-curb prayer for mandamus. all supported in detailed affidavits with full legal briefing (never considered), the ISC knows that the BLE operates "above the law" (i.e. unconstitutionally) and does not give a damn. In fact, that is how it was designed to control the lawyers. IU Law Prof. Patrick Baude blew the whistle while he was Ind Bar Examiner President back in 1993, even he was shut down. It is a masonic system that blackballs those whom the elite disdain. Here is the basic thrust:https://en.wikipedia.org/wiki/Blackballing When I asked why I was initially denied, the court's foremost jester wrote back that the ten examiners all voted, and I did not gain the needed votes for approval (whatever that is, probably ten) and thus I was not in .. nothing written, no explanation, just go away or appeal ... and if you appeal and disagree with their system .. proof positive you lack character and fitness. It is both arbitrary and capricious by its very design. The Hoosier legal elites are monarchical minded, and rejected me for life for ostensibly failing to sufficiently respect man's law (due to my stated regard for God's law -- which they questioned me on, after remanding me for a psych eval for holding such Higher Law beliefs) while breaking their own rules, breaking federal statutory law, and violating federal and state constitutions and ancient due process standards .. all well documented as they "processed me" over many years.... yes years ... they have few standards that they will not bulldoze to get to the end desired. And the ISC knows this, and they keep it in play. So sad, And the fed courts refuse to do anything, and so the blackballing show goes on ... it is the Indy way. My final experience here: https://www.scribd.com/document/299040062/Brown-ind-Bar-memo-Pet-cert I will open my files to anyone interested in seeing justice dawn over Indy. My cases are an open book, just ask.

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  3. They say it was a court error, however they fail to mention A.R. was on the run from the law and was hiding. Thus why she didn't receive anything from her public defender. Step mom is filing again for adoption of the two boys she has raised. A.R. is a criminal with a serious heroin addiction. She filed this appeal MORE than 30 days after the final decision was made from prison. Report all the facts not just some.

  4. Hysteria? Really Ben? Tell the young lady reported on in the link below that worrying about the sexualizing of our children is mere hysteria. Such thinking is common in the Royal Order of Jesters and other running sex vacays in Thailand or Brazil ... like Indy's Jared Fogle. Those tempted to call such concerns mere histronics need to think on this: http://www.msn.com/en-us/news/us/a-12-year-old-girl-live-streamed-her-suicide-it-took-two-weeks-for-facebook-to-take-the-video-down/ar-AAlT8ka?li=AA4ZnC&ocid=spartanntp

  5. This is happening so much. Even in 2016.2017. I hope the father sue for civil rights violation. I hope he sue as more are doing and even without a lawyer as pro-se, he got a good one here. God bless him.

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