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

RALEIGH — 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 the law center has requested millions of records.

Duke had sought a protective order that would keep records out of the SELC’s hands that had been subpoenaed by the federal grand jury that is investigating the company’s Feb. 2 spill into the Dan River and its 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 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 state Department of Environment and Natural Resources is suing Duke to enforce violations of the federal Clean Water Act at the coal ash plants. The lawsuits 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, and soon after grand jury subpoenas were issued, DENR withdrew the proposed settlement.

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. SELC attorneys said Duke doesn’t want records made public that would embarass it.

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

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