A North Carolina judge has ruled that state environmental regulators must immediately stop groundwater contamination from coal ash ponds at all 14 of Duke Energy’s coal-fired power plants. The decision is a victory for environmental groups opposed to how Duke Energy stores the leftover byproduct from burnt coal at its power plants, but it does not resolve what will happen to the ash.
Long before U.S. attorneys began an investigation into the state’s handling of coal ash, before a broken pipe spilled at least 30,000 tons of the stuff into the Dan River last month, before the state sued Duke for allowing ashy water to leak into waterways—after environmental groups threatened to do so—before all that, way back in December 2012, environmental groups asked a state environmental commission to stop ash pond water from seeping into groundwater. That commission said no.
“Coal ash ponds, to the extent that they involve groundwater pollution, can continue as they’re presently operating,” said the commission’s then-Chairman Steve Smith.
State regulators have since used that decision as a basis for how they handle coal ash remediation. For instance, the state proposed a settlement with Duke at two coal plants, requiring years of study about what damage the leaks from ash ponds are doing. State Water Resources Division head Tom Reeder told reporters last month the agency had to.
“If we just say, ‘okay Duke, go dig all these things up,’ we don’t really have the regulatory authority to go do that,” says Reeder. “Because they’re afforded certain due process of determining what the threat is—that’s the way our rules are laid out—and then we base the remediation on the potential threat.”
Now, a judge has reversed that decision which could have a big effect. In his decision, the judge says the operators of ash ponds must immediately eliminate contamination of ground water. In this case, the operator is Duke, and the contamination is leaks from ash ponds. And, the judge says the agency cannot wait until it determines the damage, before it stops the source of the pollution.
“Today’s ruling puts all of that to bed,” says D.J. Gerken, the Southern Environmental Law Center attorney who argued the case against the state environmental agency. “What we know, what the state already knew and has known for years, is that Duke is already contaminating groundwater. So we don’t have to wait for further examination of that fact to take action.”
It is not clear yet how the decision will affect the state’s legal action against Duke. Gerken argues it means the state cannot require more study before making Duke plug the leaks. State regulators may not agree—they say they are still reviewing the decision. And Duke Energy says it will incorporate the decision into plans the utility is already making to close some ash ponds.
The biggest win for environmental groups may be symbolic. The same judge who made this decision, will also decide the other lawsuits against Duke.