Wake judge tells Duke Energy he won’t delay cleanup order

ablythe@newsobserver.comMarch 21, 2014 

  • DENR gets legal help

    The state Department of Environment and Natural Resources is bringing in outside legal help to assist it in responding to federal grand jury subpoenas in the inquiry involving Duke Energy’s coal-ash ponds.

    The agency hired Alston & Bird of Charlotte “to ensure that we fully cooperate with the investigation,” DENR spokesman Drew Elliot said Thursday.

    “A lot of that is document retrieval and gathering, and there may be other areas as well.”

    According to a letter from Alston & Bird to DENR, the law firm will charge no more than $350 an hour, which is “substantially reduced” from the rates it would normally charge for such work. If the hourly rate of a lawyer working on the DENR case is less than $350 an hour, DENR will be charged the lower rate. Also, travel time will be billed at $150 an hour, rather than $350, according to the document.

    “Alston & Bird recognizes that DENR, as a state agency, has limited funds, and that public money is being used to pay our fees. We also view this representation as, in part, an opportunity to engage in public service,” wrote Mark Calloway, a partner at Alston & Bird, in the letter to DENR.

    Patrick Gannon of the NC Insider

— On the same day that the state issued its notice of violation for the illegal pumping at Duke Energy’s Cape Fear plant in Moncure, the coal-ash controversy continued to play out in several courts.

In Raleigh, a federal grand jury wrapped up its third day of closed-door questioning of current and former DENR employees, Duke workers and others as the panel investigated the possibility of criminal activity.

In Wake County Superior Court, Judge Paul Ridgeway issued an order rejecting Duke’s request for a stay on a ruling he made earlier this month. On March 5, Ridgeway ruled that state regulations dictate that Duke must take “immediate action” to stop toxins leaking from its coal-ash plants.

His 14-page order was meant to clarify the meaning of groundwater contamination regulations. Several cases working their way through the Wake County court system will determine what steps must be taken by the utility.

Duke asked Ridgeway to stay his order until April 7, the deadline for the utility to decide whether it wants to appeal the order to the N.C. Court of Appeals. The Southern Environmental Law Center opposed the request on behalf of several environmental advocacy groups, arguing that Duke had essentially asked to be insulated from “actions by DENR.”

Duke argued in its motion for a delay of enforcement that immediate removal of the source of pollution could result in exorbitant costs that might lead to blackouts and rate increases for its customers.

Environmentalists lauded Ridgeway’s ruling, saying it might finally bring action after years of talk about how to safely store coal ash.

“It’s like an old country music song,” SELC attorney Frank Holleman said. “ ‘What part of “no” do you not understand?’ 

On Thursday, four conservation groups working on the Dan River incident asked for the court’s permission to participate in enforcement action against Duke. DENR has several lawsuits pending against Duke, which were brought after environmental organizations filed notices to sue under the federal Clean Water Act.

Blythe: 919-836-4948; Twitter: @AnneBlythe1

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