Created: 04/09/2014 12:26 AM
By: MICHAEL BIESECKER
RALEIGH, N.C. (AP) — North Carolina regulators are joining with Duke Energy in appealing a judge's ruling on cleaning up groundwater pollution leeching from the company's coal ash dumps.
The state Environmental Management Commission filed notice Monday that it intends to appeal a March 6 ruling by Superior Court Judge Paul Ridgeway.
The commission and Duke contend North Carolina law does not give the state the authority to order an immediate cleanup. Ridgeway ruled the state had been misinterpreting the law for years.
Environmentalists say the decision to file an appeal directly conflicts with public statements from Gov. Pat McCrory suggesting his administration is getting tough with his former employer after a Feb. 2 coal ash spill that coated 70 miles of the Dan River in toxic gray sludge.
McCrory, a Republican, worked for Duke more than 28 years prior to retiring to run for governor. The nation's largest electricity company and its employees have remained generous political supporters to McCrory's campaign and GOP-aligned groups that support him, providing more than $1.1 million in support since 2008.
Though the governor directly appointed eight of the commission's 15 members, McCrory spokesman Josh Ellis said the panel operates independently of the administration. The remaining seven members were appointed by state House Speaker Thom Tillis and Senate leader Phil Berger, both Republicans.
"The commission does not report to the governor," Ellis said.
Ellis declined to say whether the governor disagreed with the decision made by his appointees.
Charlotte lawyer Benne C. Hutson, whom McCrory appointed as the commission's chairman in July, said Tuesday that he recused himself from the special April 3 closed-session meeting where Ridgeway's ruling was discussed. Hutson said his law firm represents Duke, which presented a conflict of interest.
Vice Chairman Kevin C. Martin, a McCrory appointee who presided over the meeting, said he couldn't discuss matters under pending litigation or any legal advice the commission received. However, he said a concern with Ridgeway's ruling is that it wouldn't just affect Duke, but potentially thousands of other state-permitted wastewater lagoons in North Carolina.
He said staff from the state Department of Environment and Natural Resources advised the commission without taking a position on the issue.
"No one told us how to vote," he said.
On the same day the state commission met behind closed doors, Duke filed its notice appealing Ridgeway's decision. The company also asked the judge to delay enforcement of his order until the N.C. Court of Appeals rules. Ridgeway declined.
The latest legal tussle comes after a coalition of environmental groups moved last year to sue Duke under the federal Clean Water Act over its groundwater pollution.
After state officials met with the company's chief lobbyist, the state environmental agency used its authority to file environmental violations against all of Duke's 33 coal ash pits across the state. The agency, represented in court by the office of Democratic Attorney General Roy Cooper, then quickly proposed a settlement that would have fined Duke $99,111 over pollution at two of its plants with no requirement that the $50 billion company take action to clean up its pollution.
Environmentalists criticized the deal, which they contend was intended to shield the company from harsher penalties it would have likely faced in federal court. McCrory has denied his former employer received any preferential treatment from his administration.
The state agency withdrew from its proposed agreement with Duke following increased public scrutiny in the wake of the Dan River spill.
"Just a week after the state publicly abandoned its sweetheart deal with Duke and promised to 'enforce' the law, it has appealed a judicial ruling that confirmed the state's legal authority to enforce a real solution for coal ash contamination," said D.J. Gerken, a lawyer for the Southern Environmental Law Center. "We're disappointed that this administration remains so determined to delay through litigation rather than move forward to stop ongoing pollution of North Carolina's rivers, lakes and groundwater."
Federal prosecutors have filed at least 23 grand jury subpoenas as part of an ongoing criminal investigation into the relationship between state regulators and the company prior to the spill.
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