NC DENR seeks to limit records the agency must turn over in Duke Energy case

Though Duke was ordered to pay a $102 million criminal penalty and placed on probation for five years in the federal case, the sentencing in Greenville on Thursday was just one in a series of legal challenges.

On Friday, Wake County Superior Court Judge Paul Ridgeway presided over a proceeding in state court related to a civil lawsuit filed against the company.

After environmentalists filed notice of plans to sue to try to force Duke Energy to move 108 tons of coal ash in unlined pits across the state, the state Department of Environment and Natural Resources, or DENR, took a series of legal actions.

Ridgeway has permitted the environmentalists to act as interveners in the suit, and Friday’s hearing revealed a sharp difference of opinion on how to proceed between the environmentalists and representatives from the state agency they contend was too slow to act.

The state wants to slow down proceedings and asked the judge not to order the parties to continue with what is called the discovery process, through which they are required to turn over internal documents and other materials central to the case.

Jim Cooney, a Charlotte attorney representing Duke, said the utility had no position on the proposal to delay.

Anita LeVeaux, a state special deputy attorney general representing DENR, argued that requiring the state agency to turn over millions of documents as part of the discovery process might not be necessary. She said legislative action required cleanup of four of the 14 sites at the heart of the lawsuit and enforcement actions that DENR was pursuing.

LeVeaux said the agency was working to develop an action plan and timeline.

But Frank Holleman, an attorney for the Southern Environmental Law Center, offered a different take on the actions of state regulators.

Environmental groups tried three times in 2013 to sue Duke under the federal Clean Water Act to force the cleanup of leaky coal ash dumps. The groups said they were forced to sue after North Carolina regulators failed to act on evidence that conservationists had gathered about groundwater contamination and discharge of the potentially toxic ash waste into state rivers and waterways.

Each time, the state agency intervened in the 11th hour, using its authority to take enforcement action and keep the cases in state courts.

Because Gov. Pat McCrory, a Republican from Charlotte, worked for Duke Energy for 29 years, the company’s environmental record has become entangled in the state’s partisan politics.

Though allegations by environmentalists predate McCrory’s term in office, some have derided the governor for offering the company what they described as “sweetheart deals” to settle groundwater violations.

Under the schedule, a trial would take place in the summer of 2016 at the earliest. Ridgeway told the attorneys for the state if they thought they were getting overwhelmed with requests for unnecessary documents to bring their concerns to him.

Lawyers for the three parties involved acknowledged that settlement talks were in the works.

“They have been dragging their feet every step of the way,” said John Suttles, an SELC attorney.

This story was originally published May 16, 2015 at 3:01 PM with the headline "NC DENR seeks to limit records the agency must turn over in Duke Energy case."