CHARLOTTE, N.C. (AP) — Worried about getting a fair shake
from investigators, Duke Energy is asking a judge to shield its records
from North Carolina regulators and environmental groups while a federal
criminal probe is ongoing.
In a court motion, a defense lawyer
for Duke argued that turning over records demanded as part of state
lawsuits over the company’s coal ash dumps could hurt the
investigation’s integrity, especially if the documents were to become
public.
Federal prosecutors have issued at least 23 subpoenas as
part of a widening criminal probe triggered by the Feb. 2 spill at
Duke’s plant in Eden, which coated 70 miles of the Dan River in toxic
sludge. Duke has received two of the subpoenas, which order the company
to provide reams of documents to a grand jury that has convened in
Raleigh.
Federal investigators are looking at whether the company
received preferential treatment from the state environmental agency.
Duke has nearly three dozen other ash pits spread out at 14 coal-fired
power plants across the state.
"Duke Energy strongly denies that
it has in any way knowingly violated any law or committed any crime,"
says the motion, filed last week. "The government of the United States
has the right to investigate the matters involved in these cases and
Duke Energy intends to cooperate fully in that investigation so that it
may receive a fair and unbiased assessment of its actions. This cannot
occur if the proceedings of the grand jury and material provided to it
are made a part of discovery in these cases."
The state court cases at issue deal with environmental violations at Duke plants near Charlotte and
Asheville.
Working
on the behalf of a coalition of citizens groups, the Southern
Environmental Law Center tried to use the U.S. Clean Water Act to sue
Duke last year in federal court over groundwater pollution leeching from
its coal ash dumps.
The state Department of Environment and
Natural Resources instead used its authority to issue violations and
take the case to state court, quickly negotiating a settlement that
would have fined Duke $99,111 with no requirement that the $50 billion
company clean up its pollution. The citizens groups protested, calling
it a "sweetheart deal" intended to protect Duke from possibly harsher
federal penalties.
The agency asked a judge to dismiss that
agreement last week, saying it now intends to move forward in court. The
citizens groups have intervened in the case, meaning they will have
access to documents Duke would provide.
In its motion, Duke said
it wants to keep the records under wraps to "preserve the integrity" of
the federal grand jury investigation and said the documents could be
"publicized and disseminated through the media." If that happened, the
company’s lawyers said "the ability of Duke Energy to receive a fair and
unbiased investigation into its action would be irrevocably
compromised."
Frank Holleman, senior staff attorney with the environmental law group, said Duke’s motion is a stalling
tactic.
"They
are using the fact that they are caught up in a federal criminal
investigation related to their coal ash storage as an excuse to try to
postpone the enforcement of the law against them," he said. "It’s
exactly backward from how you think the law would operate."
State environmental agency spokesman Jamie Kritzer said he couldn’t comment on the investigation.
In
the last month, state regulators have issued nine environmental
violations against Duke because of the spill and issues at other plants.
The latest was Friday for a crack in a dam at a coal ash dump in
Moncure, where regulators say Duke illegally pumped 61 million gallons
of contaminated water into the Cape Fear River. Coal ash is known to
contain numerous chemicals that are highly toxic to people and aquatic
life, including arsenic, lead and mercury.
The state ordered Duke
to take steps to ensure the earthen dam’s stability. Duke has said it
finished emergency repairs Monday to the dam that holds back millions of
tons of coal ash.
Also Friday, state environmental officials said
they had detected high levels of the poisonous element thallium leaking
from a coal ash dump at Duke’s Cliffside Steam Station in the western
part of the state.
Though the specific reading was not disclosed,
the state said its testing showed thallium at a level exceeding that
considered safe for surface waters leeching from Duke’s dump into the
Broad River. A sample collected farther downstream from the plant also
detected thallium, though at a level within safety standards, according
to the agency.
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Biesecker reported from Durham. Follow him at Twitter.com/mbieseck
Follow Weiss at Twitter.com/mitchsweiss
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