NC regulators side with Duke Energy in appeal of judge’s ruling on coal ash pit cleanup

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RALEIGH, N.C. – 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 15-member commission appointed by Gov. Pat McCrory and Republican legislative leaders had been misinterpreting the law for years.

Environmentalists say the decision to file an appeal directly conflicts with public statements from 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 grey 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.

Commission chairman Benne C. Hutson, a Charlotte utilities lawyer, did not immediately return a phone message. The commission has not posted notice of any public meetings since Ridgeway ruled. A public meeting would have been required for the state board to discuss the issue or vote on how to respond.

Duke appealed Ridgeway’s decision April 3 and 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 N.C. Department of Environment and Natural Resources 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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Follow Associated Press reporter Michael Biesecker at Twitter.com/mbieseck

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