Coal-ash neighbors file class-action lawsuit against Duke Energy

Published 3:59 pm Wednesday, August 23, 2017

SALISBURY — More than two years after being told their water wasn’t safe to drink, neighbors of coal ash ponds are taking Duke Energy to court.

On behalf of people who live near Duke’s coal ash ponds, local law firm Wallace and Graham filed suit against the company in Wake County Superior Court. The suit focuses on the fact that Duke Energy will require coal ash neighbors to waive the right to sue the company for issues related to coal ash ponds if they also want to receive a financial package that includes a $5,000 supplement and 25 years of water bill payments.

Plaintiffs in the suit are from communities across North Carolina affected by water quality concerns related to coal ash. Deborah Graham, who lives in Dukeville, is among the plaintiffs.

Defendants named in the suit include Duke Energy Carolinas and Duke Energy Progress.

The plaintiffs are seeking damages in excess of $25,000 and demanding a jury trial.

Attorneys for the coal ash neighbors say the proposed waiver of the right to sue is unfair and invalid for a number of reasons, including that it violates public policy.

“The courts have stated that a public utility cannot force consumers to sign a prospective waiver of claims that may include future negligence of the company,” the lawsuit states.

Duke Energy has told neighbors and the general public repeatedly that there is no evidence that coal ash ponds contaminated nearby water wells. It’s unfair for a public utility to make such a claim, then ask neighbors to sign away their rights, the lawsuit states

Attorney John Hughes of Wallace and Graham said families do not believe they should have to sign a release to get the financial supplement. That doesn’t mean the families intend to file another lawsuit against Duke Energy about water quality, Hughes said.

“If Duke truly believes that it has caused no damage, then why does it need a release?” the lawsuit asks.

In response to the lawsuit, Duke Energy spokeswoman Erin Culbert said the company’s financial package is voluntary and neighbors do not have to accept it. If they do accept the financial package, it’s customary to sign a waiver, Culbert said.

“This is obviously another effort by trial lawyers to make money for themselves when the company is already doing more than anyone to care for our plant neighbors,” Culbert said.

The suit comes more than two years after state regulators first told homeowners who live near coal ash ponds that well water was not safe to drink. Regulators waffled on that declaration, later saying that the water was safe. Even later, state regulators changed the declaration again for a limited number of coal ash ponds.

Throughout the process, Duke Energy has provided bottled water for coal ash neighbors. By fall 2018, state law requires that the company provide a safe, permanent water supply to people living within a half mile of a coal ash pond.

In Rowan County, a settlement between Duke Energy and the Yadkin Riverkeeper also requires that the company excavate all coal ash at its Buck Steam Station site. The company can recycle the coal ash at Buck Steam Station or place it in a lined landfill that’s separated from groundwater and away from the Yadkin River.

Duke Energy plans to pay for coal ash cleanup, in part, through a rate increase. The company says a rate increase would also pay for shifting to “cleaner” energy sources and modernizing the electric grid. This week, the company expects to file its rate increase request for a service area covering Rowan County. Duke has filed a similar rate increase request for the eastern part of North Carolina and the Asheville area.

In addition to Wednesday’s lawsuit, coal ash neighbors filed petitions to intervene in the rate increase requests. Wallace and Graham filed petitions on rate increases proposed by Duke Energy Carolinas and Duke Energy Progress.

“After having to live off of bottled water for more than 800 days as a result of Duke’s failure to responsibly manage its coal ash waste, it would add insult to injury to have to pay more every month in my electric bill so that Duke can continue to earn a profit after decades of waste mismanagement,” Dukeville resident Graham said in a news release.

Duke Energy says it will likely be a number of months before the N.C. Utilities Commission makes a decision about a rate increase.

Contact reporter Josh Bergeron at 704-797-4246.