Judge rules environmentalists’ coal ash suit can continue

Posted by Craig Jarvis on June 12, 2014 

The state’s environmental regulatory agency has been trying to stress its independence from Duke Energy ever since the Dan River spill in February and the ensuing environmentalists’ accusation of lax enforcement and a federal criminal probe of the relationship between regulators and polluters.

But a federal judge’s ruling earlier this week underlines just how damaging that perception remains to the state Department of Environment and Natural Resources.

U.S. District Court Judge Louise Flanagan allowed a group of environmental organizations to pursue a lawsuit against Duke over ongoing pollution at its Sutton plant near Wilmington in part because of concerns about that relationship.

Flanagan, in her order, noted a federal grand jury subpoenaed DENR employees, including one responsible for regulating the Sutton plant, concerning payments or other items of value they might have received from Duke Energy. The judge said she would be remiss if she threw out the lawsuit when “there have been allegations of possible improper influence.”

But the thrust of Flanagan’s ruling was that DENR’s separate lawsuit to enforce pollution laws in state court was different from the environmentalists’ claims under federal law, and so it could proceed.

She also found that the permit DENR issued Duke that allowed it to dump coal ash from two ponds into Sutton Lake wasn’t protecting the environment. That discharge, the judge held, was into a public waterway and not part of a private wastewater treatment facility that the state permit could regulate.

The lawsuit was brought by the Sierra Club, Cape Fear River Watch and Waterkeeper Alliance, represented by the Southern Environmental Law Center. Those groups hailed Flanagan’s ruling as a major victory.

The SELC will now be able to obtain records and question the utility’s executives under oath.

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