Council meeting to discuss biomass settlementJanuary 17, 2014
By CANDY NEAL
Herald Staff Writer
JASPER — Monday night, officials will consider a settlement of a pending lawsuit involving the city’s power plant.
The Jasper Common Council is planning to meet at 8 p.m. at City Hall, 610 Main St. The Jasper Utility Service will have its regular meeting that night at 7 p.m., and has litigation discussion on its agenda.
The boards are named in a lawsuit by Healthy Dubois County that accuses the boards of violating the state’s Open Door Law 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. Twisted Oak is looking to convert the plant into the Jasper Clean Energy Center, a biomass plant that would burn natural gas and miscanthus grass. Healthy Dubois County members are concerned about health risks that would arise as a result of that conversion.
At the end of December, Healthy Dubois County’s attorney, Too Keller of Carmel, sent the boards’ attorney in the matter, Greg Neibarger of Bingham Greenebaum Doll of Indianapolis a settlement offer proposing that both sides dismiss all claims with prejudice and the city cover HDC’s attorneys fees and costs at market value, which was estimated at $240,000.
The city boards met in executive session Jan. 8 to discuss the offer. Last Friday, the boards voted to reject the offer and told their attorney to continue with negotiations. Soon after that announcement, Healthy Dubois County officials said that they were told that last Friday’s meeting had been canceled, a claim the city denies. An email The Herald sent to Keller seeking comment or clarification has not yet been answered.
Healthy Dubois County, through Keller, offered to settle in July. That offer listed seven stipulations:
”¢ Jasper will reimburse his 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, the plaintiffs and Healthy Dubois County 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 St. has been abandoned.
”¢ Healthy Dubois County will volunteer, in the spirit of saving taxpayers’ dollars, to assist Jasper in grant-writing and securing funds from the Environmental Protection Agency, Sierra Club, Heartwood, ValleyWatch, Hoosier Environmental Council, 350.org, etc. for the power plant demolition costs and brown site cleanup.
”¢ The settlement is to be a public agreement with no confidentiality.
Five of those stipulations were listed at the utility service board’s Aug. 19 meeting, although the board rejected the entire settlement offer. City council members also rejected the offer at their meeting. Both boards told their attorneys to continue with negotiations.
Healthy Dubois County et al filed its original lawsuit in August 2011, alleging that the boards violated the Open Door Law with six executive sessions that were held prior to the two boards deciding to lease the city’s power plant to Twisted Oak on Aug. 5, 2011.
The lawsuit was heard by Perry Circuit Judge Lucy Goffinet on Dec. 19 and 20, 2011. During the trial, Healthy Dubois County made motions to have more time to conduct discovery to determine if the Open Door Law was violated by the city using a volunteer group and to amend their complaint to add that the volunteer group did violate the law. They also requested that the trial be continued. Those requests were denied by the court.
Goffinet’s 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, at which Knox Circuit Judge Sherry B. Gregg Gilmore will preside over in Dubois Circuit Court. That trial was scheduled to start this month, but was postponed to April 15 and 16.
Healthy Dubois County proposed a settlement through its attorney in July. That settlement was rejected by the utility board and Jasper Common Council in August. The two city boards proposed a counteroffer through their attorney in August, which Healthy Dubois County rejected in September.
Gilmore granted in November the City of Jasper’s motion for partial summary judgment on any claims of Indiana Open Door Law violations in relation to six executive sessions in 2010 and 2011.
This means Healthy Dubois County cannot retry issues concerning those executive sessions, since the ruling on those concerns was in the city’s favor at an earlier trial. Also at that time, Gilmore ruled that the city boards are not responsible for Healthy Dubois County’s attorney fees.
Contact Candy Neal
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