Judge rules Duke Energy can't have blanket protection for its records

cjarvis@newsobserver.comApril 4, 2014 

— Duke Energy cannot have a blanket order keeping its coal ash records out of the hands of environmental groups that are suing it over water pollution violations, a Wake County superior court judge ruled Friday.

Instead, Judge Paul Ridgeway said he will consider the utility’s concerns over specific kinds of documents as the case progresses, and might permit them to be filed under seal but still shared with attorneys for the environmentalists.

Duke Energy, the Southern Environmental Law Center and the state attorney general’s office will meet within the next month to begin sorting out what kinds of records the company will provide. An attorney for the utility said millions of records have been requested.

Duke had sought a protective order that would keep records out of the SELC’s hands that had been subpoenaed by the federal criminal grand jury investigating the Feb. 2 spill into the Dan River and the company’s 13 other coal ash storage ponds around the state.

Duke’s attorney in the criminal case, James Cooney, accused the SELC in the court hearing of trying to improperly influence the grand jury by publicizing records it has already obtained and that it wants to obtain in the lawsuits.

“They have no right to use the civil discovery process to receive grand jury materials to dump into the public square,” Cooney said. “... They have every right to advocate in the public square for the policies they want. But they don’t have a right to use this material for that.”

The SELC’s Frank Holleman countered that the court process should be as open and transparent as possible.

“It is wrong, in fact plainly not true, that it’s not possible in the United States of America to have a fair trial simply because something is publicized,” Holleman told the judge.

The law center noted that the records the grand jury has subpoenaed from Duke mirror the records sought in the civil proceedings, including permits regulating water quality, testing results, and communications between Duke and DENR. So, the center argued, blocking them from being used in the lawsuits would hamper their ability to pursue the cases. They contend Duke simply doesn’t want records made public that would embarrass it.

Ridgeway noted that there are some kinds of records that are typically protected from public disclosure in civil cases, such as trade and proprietary records. But he said it would be unusual to impose “some sort of prior restraint of a party’s ability to discuss in a public forum.”

The state Department of Environment and Natural Resources last year sued Duke to enforce the Clean Water Act at the coal ash plants. Three lawsuits filed in Wake and Mecklenburg counties involving 14 separate coal ash plants were prompted by the SELC’s intention to sue if the state didn’t.

DENR and Duke reached a quick settlement, which the SELC opposed because it didn’t go far enough in requiring the company to clean up the pollution. After the Dan River spill, grand jury subpoenas and public outcry, DENR withdrew the proposed settlement. DENR has issued a flurry of violations against Duke in the past two months.

“If there's anything we have seen here it’s that enforcement action has only been taken when the public has known what is going on,” Holleman said.

The first lawsuit was filed just over a year ago, and the SELC filed its first request for documents from Duke last year. The law center – which represents the Sierra Club and several clean-river advocacy groups – emphasized in Friday’s hearing that it wanted to keep the case moving forward because, it contends, pollution is still happening at the coal ash ponds, which Duke disputes.

The environmental advocacy groups accuse Duke of delaying comprehensive cleanup through legal tactics like keeping its records secret. Holleman noted that last month another coal ash spill occurred, at the Cape Fear plant in Chatham County.

“Every day that goes by without full disclosure we're at greater risk,” Holleman said. “Every day without action we have a slow-motion spill going on across the state.”

Holleman noted that Ridgeway last month ruled in SELC’s favor that the state had been misinterpreting a groundwater regulation wrong, and that Duke Energy could be required to immediately stop the source of pollution at its coal ash plants. Duke appealed that ruling this week.

Jarvis: 919-829-4576; Twitter: @CraigJ_NandO

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