A long-running dispute between a state scientist and the McCrory administration erupted into public view this week over his claims in a lawsuit deposition that top state officials have downplayed the risks of coal ash to well owners.
Kenneth Rudo, a state toxicologist, testified recently that health and environment officials sought to “play down the risk” of coal ash contaminating drinking water wells near power plants.
When part of Rudo’s remarks in the deposition became public on Tuesday, the governor’s chief of staff called an impromptu late-night news conference to deny any implication by Rudo that Gov. Pat McCrory took an active role in a 2015 meeting about how to inform people that their wells might be polluted.
“We want to make it crystal clear that we’re not going to stand by idly while individuals make false statements and lie under oath,” Thomas Stith said.
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While the attention Tuesday was on conflicting versions of what happened at that 2015 meeting, the bulk of Rudo’s testimony that has been released so far includes what he described as a broader, unprecedented effort by the state health and environmental agencies to give false assurance to some 400 well-owners.
“The state health director’s job is to protect public health, and in this specific instance, the opposite occurred,” Rudo, a 27-year public health employee, said in the deposition. “We knowingly told people that their water was safe when we knew it wasn’t.”
He was referring to Dr. Randall Williams, who McCrory appointed public health director in July 2015. Williams and Department of Environmental Quality Assistant Secretary Tom Reeder rescinded a do-not-drink notice in March 2016.
Rudo’s testimony is similar to that of two other state public health officials who had concerns about the health and environment departments rescinding the notices that had gone out in June 2015. Officials in the agencies said they had been overly cautious last year, but determined the water was safe.
Many of the well owners and environmental groups suing the state over coal ash were not reassured; instead, they worried about the relationship of Duke Energy to the McCrory administration. The governor worked for the utility for 28 years, and appointed former Duke Energy officials to his administration.
Court of public opinion
The Southern Environmental Law Center has tried to build its case in court and in public opinion that the McCrory administration has been too lax regulating the company. The administration counters it has done more than any previous administration to force Duke to clean up its coal ash residue from basins around the state, including hitting it with record fines.
As part of a coal ash cleanup bill, the state began testing private wells near the plants for elevated levels of potentially cancer-causing substances that are present in coal ash and also are naturally occurring. Duke Energy has been voluntarily providing bottled water to the residents for more than a year, even though there has been no proven connection between the coal ash ponds and the elevated levels in wells.
This year the General Assembly passed legislation speeding up permanent connections to municipal water supplies for those neighbors, who live near 14 sites where the coal ash residue of power plants is stored.
Rudo’s deposition describes his growing unease with what he saw as pressure from higher-ranking environment and health officials to tone down last year’s warning notices. It reached a point where Rudo demanded that his name be taken off the notices as the contact person because he felt the state Department of Environmental Quality’s efforts were “misleading and dishonest.”
He said the agency wanted to advise well owners that, despite the do-not-drink notices, the water satisfied federal drinking water regulations, when in fact there is no federal standard for one of the substances found in coal ash, hexavalent chromium. He said it was incongruous to warn people not to drink the water but to tell them it didn’t exceed federal standards.
“It was almost like saying, ‘Don’t drink the water but don’t worry about it,’” Rudo said. “That was something we had never been asked to do before.”
Rudo testified that around late March 2015, he was about to go on vacation but was summoned to the governor’s office by his supervisor because the governor, Rudo said, wanted to discuss the wording of the proposed do-not-drink notices. Rudo said the governor wasn’t there but called his communications director, Josh Ellis, who relayed McCrory’s concerns.
Accused of lying under oath
Rudo said Ellis expressed the concern that telling people not to drink their water “was a pretty strong thing to do,” and wanted each well owner to know what their specific risk was, “so we could play down the health risk.”
Rudo said he explained the public health assessment process to Ellis, indicating that it wasn’t possible to give individual well owners numerical risk estimates, and that Ellis seemed to understand the process better.
Rudo said the meeting concluded with discussion about putting additional language in the cover letters sent with the notices, and he went on vacation. While he was gone, the forms that he objected to were sent out. The meeting lasted about an hour and a half, he said.
Ellis did not respond to a request for comment Wednesday.
Stith, at his news conference Tuesday night, acknowledged that staff from his office were involved in the wells issue but he was adamant that Rudo’s specific claims about the governor were false.
“We don't know why Ken Rudo lied under oath, but the governor absolutely did not take part in or request this call or meeting as he suggests,” Stith said. “The fact is that the state sent homeowners near coal ash ponds all facts and safety information about their drinking water and thanks to the McCrory administration's efforts, well owners are being hooked up to municipal water supplies at Duke Energy's expense.”
Kendra Gerlach, communications director for the Department of Health and Human Services, attended that meeting and on Wednesday disputed Rudo’s version.
“The governor did not participate in that meeting, nor did he summon Ken Rudo,” Gerlach said in a statement she released.
She said Rudo’s view was inconsistent with the department’s position on the wells, and added that he wanted to use a standard for hexavalent chromium that was 143 times more stringent than California’s.
Public deserves to know
Stephanie Hawco, communications director for the state environmental agency, on Wednesday criticized the Southern Environmental Law Center for releasing the depositions.
Hawco accused the group of trying to “cherry-pick parts of an incomplete deposition to suit their political purposes.”
“That’s exactly what we expect from an organization that is more interested in grabbing headlines and filing lawsuits than they are in protecting the environment,” Hawco said.
Duke Energy has asked a judge to stop the SELC from releasing Rudo’s full deposition, saying it is inadmissible hearsay that is meant to inflame public opinion. The company says it hasn’t completed its part of the deposition, where it will focus on Rudo’s claims, motives and credibility.
Frank Holleman, an attorney for the public interest environmental law firm, opposed Duke’s request for a protective order in a brief he filed Tuesday.
“The transcript of Dr. Rudo’s July 11 testimony is a public record and contains critical information concerning public safety, the state’s drinking water supplies and the conduct of public officials at the highest levels of North Carolina’s government and environmental and health agencies,” Holleman wrote.
Duke Energy didn’t try to prevent others’ depositions from being public, Holleman wrote, so Rudo’s must be especially important.
From Kenneth Rudo’s deposition
▪ “They wanted language on the health risk evaluation forms that, from our standpoint, and what we had done for over 30 years in protecting private wells, we felt we couldn’t do that. They wanted language put on there that stated, in essence, we were overreacting in telling people not to drink their water.”
▪ “I have never talked to a governor in all of the years I have been here. ... So I was a little, even for me, intimidated by this....”
▪ “I mean, we are trying to protect public health. We are trying to protect people. We are trying to help people. We are trying to help people protect their water. And this is ground that we have just never been on in all the years I have been here.”