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Duke Energy seeks to withhold documents in lawsuit

By Anne Blythe and Craig Jarvis
cjarvis@newsobserver.com

RALEIGH As a federal grand jury probes possible criminal activity by Duke Energy, attorneys for the utility have asked a Wake County Superior Court judge to temporarily limit what information it must exchange with state regulators and environmental organizations in a lawsuit.

An investigative grand jury met in the Raleigh federal courthouse for three days this month to review documents and testimony provided by Duke employees and current and former members of the state Department of Environment and Natural Resources and the state Utilities Commission.

“Duke Energy strongly denies that it has in any way knowingly violated any law or committed any crime,” Jim Cooney, a Charlotte attorney representing the utility, stated in a request for a protective order filed in Wake County Superior Court on March 14.

The motion states, “Duke intends to cooperate fully in that investigation so that it may receive a fair and unbiased assessment of its actions.”

To do that, Cooney and other attorneys for the utility contend, materials provided to the grand jury should be withheld, temporarily, from the civil proceedings underway in Wake County Superior Court stemming from DENR’s pollution cleanup enforcement actions against the company.

U.S. Attorney Thomas Walker, the chief federal prosecutor in the Eastern District of North Carolina, has not elaborated on the targets of the criminal inquiry. But Duke’s motion provides the first public look at what federal investigators are focusing on. The two grand jury subpoenas issued to Duke are attached to Cooney’s motion.

One subpoena focuses on the Dan River plant, which was the site of a massive coal ash and wastewater spill on Feb. 2. It requests extensive information about all employees and contractors who have worked at that plant, near Eden in Rockingham County. That includes biographical information, contact information, job titles, job descriptions and training records.

It also seeks records on the design, construction, maintenance and inspection of the broken stormwater pipe that led to the spill. Also demanded are records on river water quality sampling, records related to the spill and any previous violations.

The other subpoena casts a wide net for records related to the other 13 coal-fired plants with ash ponds in the state.

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The civil lawsuits are set for hearings next week in Wake County Superior Court.

“Duke Energy respectfully submits that both the public interest and the administration of justice is better served by permitting the government of the United States, through the grand jury process, to investigate the matters that have been raised rather than by permitting the production of grand jury materials and proceedings to special interest groups that do not have the same obligation to conduct a full, fair and impartial investigation,” the Duke protective order request states.

Blythe: 919-836-4948
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