A federal judge delayed a hearing Wednesday in a lawsuit by the Catawba Riverkeeper Foundation over Duke Energy’s coal ash.
The foundation sued Duke Energy Carolinas last year over illicit discharges from two ash ponds at the Riverbend power plant on Mountain Island Lake, Charlotte’s water source.
Such lawsuits are not allowed under federal law if state or federal authorities are “diligently prosecuting” a separate but similar action.
Duke filed a motion to dismiss the foundation’s lawsuit. The company argued the N.C. Department of Environment and Natural Resources had already sued Duke over Riverbend’s ash and reached a proposed settlement.
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A magistrate judge agreed, recommending in December that the foundation’s lawsuit be dismissed. The recommendation went to District Judge Max Cogburn.
Duke’s power plant in Eden spilled tons of ash into the Dan River on Feb. 2.
The Southern Environmental Law Center, representing the Riverkeeper Foundation, argued the spill had “dramatically” changed events.
A federal grand jury began investigating the spill. The state sidelined the proposed Riverbend settlement. State regulators cited Duke for illegally dumping solids from its ash pond on the Dan River, enforcing a standard the foundation said also applied to Riverbend.
On Wednesday Duke asked Cogburn, who will decide whether to dismiss the lawsuit, for more time to respond to the foundation.
“We think this demonstrates even more diligent prosecution by DENR, not less,” attorney Brent Rosser, representing Duke, told Cogburn.
The foundation’s attorney, Frank Holleman, called Duke’s request part of a “pattern of delay that has resulted in serious harm to the people of North Carolina and the waters of the state.”
Cogburn agreed to delay the hearing. The foundation has until March 26 to file a brief on the spill-induced changes. Duke will have until April 9 to respond.
Groups call on McCrory
In a separate press conference event Wednesday at the Charlotte-Mecklenburg Government Center, environmental, energy and public-interest groups called on Gov. Pat McCrory to disclose his financial ties to Duke, including the value of company stock the former Duke executive owns.
DENR spokesman Drew Elliot once worked for Progress Energy, now part of Duke. Department ombudsman Joseph Harwood was a longtime Duke executive.
A grand jury probing Duke’s coal ash will meet in Raleigh next week.