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Duke Energy hoped to avoid ‘media frenzy’ resulting from deposition’s release

By Josh Bergeron

josh.bergeron@salisburypost.com

SALISBURY — Duke Energy hoped to avoid the controversy ignited by the partial release of a state toxicologist’s deposition, according to a court filing last week.

News outlets across North Carolina have written about each step of the most recent coal ash controversy, which started with a partial release of toxicologist Ken Rudo’s deposition in a lawsuit between the Yadkin Riverkeeper and Duke Energy. No reasonable juror could ignore the resulting “media frenzy,” say Duke’s attorneys in the most recent court filing. Initially, Duke Energy asked the court to prevent the release of Rudo’s deposition.

“(The Southern Environmental Law Center) has inflicted upon Duke Energy the very harm Duke Energy sought to avoid with its motion — the publication of inadmissible material that will have a substantial likelihood of materially prejudicing its right to a fair trial,” Duke Energy says in its filing.

As part of a lawsuit between the Yadkin Riverkeeper and Duke Energy, the SELC in early August released the partial deposition of state toxicologist Ken Rudo. Following the partial deposition’s release, high-ranking state officials criticized Rudo in an op-ed distributed to media outlets across North Carolina. A state epidemiologist later resigned in response to the op-ed.

The SELC released Rudo’s partial deposition when arguing his statements were based on first-hand information. The Associated Press obtained the full copy of the transcript of Rudo’s deposition.

For its part, Duke argues the opposite — that Rudo’s testimony is based on “news reports and other hearsay.”

The company questions whether SELC leaked the full deposition to the Associated Press. It also criticizes the SELC for release of the partial deposition. Duke argues that the full version of Rudo’s deposition hadn’t been completed at the time the SELC released the partial deposition.

“Duke Energy is entitled to a fair and impartial jury — not one tainted by plaintiffs’ media campaign,” Duke states in its latest filing.

Duke’s court filing uses reader comments on news stories as part of its argument that the SELC has unfairly implied Duke Energy lobbied state government to declare water near coal ash ponds safe to drink.

In last week’s filing, Duke Energy again asks a federal judge to seal Rudo’s deposition and have a hearing about its release.

The Yadkin Riverkeeper’s lawsuit has attracted significant attention because of Rudo’s deposition. The deposition is significant because it may give insight into how state regulators decided water near coal ash ponds was safe to drink. However, the riverkeeper organization’s lawsuit originated with a September 2014 complaint that Duke Energy violated the Clean Water Act by allowing unpermitted discharges from its coal ash ponds at Buck Steam Station.

Duke’s own assessments say that seeps at Buck Steam Station discharge 70,000 gallons per day of water into the Yadkin River from coal ash ponds.

A jury trial in the Yadkin Riverkeeper lawsuit has been set for April 3, 2017.

Contact reporter Josh Bergeron at 704-797-4246.

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