“I have a mouth full of coffee, made with that water” said Graham, who has lived in her Dukeville home for 30 years. “I’m looking at my kitchen sink, the sink where I had cooked for my neighbors, for church. The word ‘contamination’ changes your very being.”
Graham is one of hundreds of private drinking well owners who live within a half-mile of a Duke Energy coal ash pond. Under the Coal Ash Management Act and its 2016 amendment, if these household wells contain the same contaminants found in coal ash — vanadium, arsenic or Chromium 6, for example — the utility must provide residents with a permanent water supply: either a water filtration system for their home or a connection to a public water utility.
But the details of an agreement about this water supply between Duke Energy and the eligible households have prompted a class-action lawsuit, with Graham as one of the plaintiffs.
Under CAMA, Duke Energy is required to pay for a “permanent water supply.” But the utility has interpreted that to mean only the installation of filtration system or the hook up to the water lines — not the maintenance costs or the water bills.
“We understood it included the hookup,” said Graham, who has relied on bottled water from Duke for 861 days. “But we didn’t know it didn’t include the water.”
To get those expenses covered for 25 years — equivalent to about $20,000 — plus a $5,000 payout, households can sign a contract with Duke that absolves the company from past, present or future liability related to the nearby coal ash ponds. In other words, residents who sign the contract can’t sue Duke if they or family members are later diagnosed with cancer or other diseases caused by exposure to coal ash.
People who decline the waiver will still get the filtration system or the hookups, but will have to cover their own monthly water bills or the filter maintenance.
The suit, filed in Wake County last Thursday, alleges that the voluntary “financial supplement” contains contract language that is “unfair, deceptive and unconscionable.” The suit asks the court to strike the waiver language from the contact, which would allow residents to receive the money but without indemnifying Duke for any coal-ash related health problems.
The plaintiffs are being represented by the Wallace & Graham firm of Salisbury. Deborah Graham is not related to anyone at the firm.
In offering the financial supplement, the utility was responding to concerns of residents, some of whom are on fixed-incomes, about the monthly expense of water bills, said Duke Energy spokesperson Paige Sheehan, adding that roughly 60 people have agreed to sign the contract.
Regardless of whether they choose to sign the contract, eligible households will still have the option of a connection to a public water supply or a permanent water filtration system. Sheehan said the intent of the supplement is to financially assist residents. The contract also provides a “property value protection” program for homeowners if they sell their house but don’t get full market value. In return, Sheehan said, residents are being asked to sign the waiver, “which is common.”
But John Hughes, attorney with Wallace & Graham, said that while public utilities can require customers to sign waivers as part of a legal settlement, they can’t do so as part of their “public duty.” A Duke Energy lawyer had publicly stated that these payments are not a settlement, but a supplement of the utilities duties under the Coal Management Act.
“If that’s true,” Hughes said, “we don’t think Duke can have residents sign a release.”
In January 2017, when state environmental officials approved Duke’s plan to provide permanent replacement water, Duke had not yet figured out nor disclosed the details of the financial supplement. “Duke should have broached the release language before DEQ approval,” Hughes said. “We could have commented and said there are too many strings attached.”
Duke has maintained that the drinking water is safe, but has provided residents with bottled water for more than two years to give them “peace of mind.”
“None of the plaintiffs [in the recent case] have contamination in their wells above DEQ standards,” Sheehan said. “There is nothing in the wells that’s a problem.”
However, scientific advances, including those in toxicology, evolve. There remains the possibility that coal ash contaminants could be linked to health problems and diseases in the future. For example, some longtime residents were exposed to coal ash in the air many years ago. If they sign the waiver, they could not sue Duke if they develop lung disease related to that exposure.
Sheehan said Duke “has to work on the overwhelming body of evidence we have now. This is a choice for folks. They can choose the path or not.
“The whole idea is to bring closure to the issue,” Sheehan added. “I have to believe those people [who signed] believe they’re not being impacted.”
Hughes said that the waiver would also prevent residents from suing should there be another spill or coal-ash related disaster. The Buck plant, which is near Graham’s home, is being excavated. If there were an incident during excavation, and Graham signed the waiver, she could not hold Duke responsible for harm to her health or property.
“We simply want what’s fair and just,” Graham said. “We can’t have closure. We live this every single day.”