Judge: No shield for Duke Energy coal ash records

But Superior Court Judge Paul Ridgeway said he would leave open the possibility of making specific documents off-limits to the public to avoid interfering with a federal grand jury investigation into a massive February coal ash spill.

The state, along with organizations such as the Southern Environmental Law Center, initiated its suit against the power company in 2013 over pollution from coal ash ponds sprinkled across the state. But following a spill that dumped about 40,000 tons of the industrial byproduct into the Dan River in February, the federal government began pursuing a criminal investigation at the same time.

"I think it's fair to say that everything in this [lawsuit] is covered by the grand jury case," Duke attorney Jim Cooney told the court.

Cooney argued that, because of the significant overlap, there was a potential of groups like the SELC to release material disclosed during the discovery process of the lawsuit to the public, interfering with the grand jury probe.

"They have every right to advocate in public for the policies they want," Cooney said. "But they don't have right to use the civil discovery process to pursue that advocacy."

But noting that the SELC filed its discovery request well before the federal probe, SELC attorney Frank Holleman said getting a hold of details about the grand jury's proceedings weren't in the scope of what it was looking for.

"What Duke Energy wants to do is put a blanket over these documents available to the court and keep them from the public," Holleman said.

Ridgeway questioned whether the state and others included in the lawsuit ever asked for documents given to the grand jury. Aside from established rules that would protect trade secrets or other confidential information, he said it would be unusual to apply a sort of "prior restraint" on the ability of both sides of the suit to discuss material in a public forum.

He also questioned the standards Duke attorneys would use to decide which documents would "interfere with the grand jury process."

"Right now, I'm not sure what that would be," Cooney responded.

What Duke really wants to prevent, Cooney said, was the identification of which documents the company supplied to the grand jury – or which witnesses were called to testify. 

Ridgeway acknowledged that was a reasonable concern but said a broad motion wasn't necessary to prevent it from happening. Instead, he said, it would be possible for Duke lawyers to present specific documents with an argument that they be shared with opposing attorneys but sealed from the public.

With millions of documents in the mix, he said, "it's hard to think about every scenario" where exceptions would apply.

Attorneys from both sides will meet over the next 30 days to discuss details about which documents Duke will share.

In the meantime, Holleman called Ridgeway's decision a victory.

"We think it's critically important this information be made public," Holleman said after the hearing. "What we've seen is a consistent pattern of Duke to keep the public out of this."

Cooney referred questions to Duke's corporate communications office.