DENR lawyers OK turning over Duke settlement communications

Posted by Craig Jarvis on March 8, 2014 

In the interests of transparency, the McCrory administration has waived a limited part of its attorney-client privilege related to the lawsuits it has filed against Duke Energy over the utility’s coal ash basins.

In a letter sent to its lawyers in the Attorney General’s Office, the general counsel for the N.C. Department of Environment and Natural Resources has instructed that any communications between the two agencies about the lawsuits and a proposed settlement can be turned over to federal authorities. The letter limits communications to those made through Nov. 20, 2013.

Lacy M. Presnell III, the general counsel, writes that “extraordinary circumstances” prompt DENR to waive attorney-client privilege.

“NCDENR believes it is in the best interest of the public that it provide all records responsive to the federal investigation subpoenas and public record requests with respect to the filing of the four lawsuits and the proposed consent order, including documents that would otherwise qualify as privileged information under the attorney-client privilege,” Presnell writes.

Presnell cites case law recognizing the appropriateness of a limited waiver of attorney-client privilege for policy reasons, including voluntary disclosures to regulatory agencies. In this matter, Presnell writes, the U.S. Department of Justice is considered the regulatory agency.

The approach by DENR comes as Gov. Pat McCrory and others in his administration have expressed increasing frustration with Duke Energy’s response to the Feb. 2 coal ash spill into the Dan River, and the subsequent controversy over how well regulated the industry is, and a federal grand jury investigation into Duke and DENR.

McCrory has said it’s time for Duke to take a more public role in saying what it will do to make its 14 coal-ash sites safe. Duke has said it will comply with the governor’s request by the March 15 deadline.

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