House minority leader calls for SBI probe of coal ash do-not-drink notices
Last year Ken Rudo, a state toxicologist, stood before a community meeting in Salisbury to deliver a warning: Elevated levels of potentially cancer-causing substances typically present in coal ash had been found in drinking water wells near coal-fired power plants run by Duke Energy around the state.
At that meeting in June 2015, Duke Energy’s coal ash toxicology expert said people could ingest more of the element vanadium by taking a daily vitamin than from the well water, despite the state’s warning not to drink it. Rudo shook his head in frustration.
The levels we’re seeing, it’s a low risk, but it’s higher than what we in public health consider to be safe
“The levels we’re seeing, it’s a low risk, but it’s higher than what we in public health consider to be safe,” Rudo replied. “And sometimes that view might be different from others’.”
For Rudo and other public health scientists, arguing with powerful interests comes with the territory, although rarely does it extend all the way to the top of state government. In one deposition, Rudo called himself “a peon toxicologist at the bottom of the ladder rung” who had never met a governor.
Now Rudo is a key figure in the controversy over why the McCrory administration rescinded those do-not-drink notices this year. The extent of his objections to lifting the warning surfaced in a deposition last week. In response, Gov. Pat McCrory’s chief of staff called a nighttime news conference to reject Rudo’s claim that the governor had participated in a meeting where the administration wanted to “play down the risks,” and to say the state scientist had lied under oath.
Rudo declined to be interviewed for this story, saying the public record can speak for him.
Bad news and disputes
On Monday, he was vilified by the Republican governor and defended by the top Democrat in the state House. Rep. Larry Hall said Rudo was being “savagely attacked.”
“They attack the integrity of this 30-year state employee who testified under oath and under potential penalty of perjury from the court,” Hall said in a news conference calling for the State Bureau of Investigation to look into the administration’s actions. “People continue to attack him without stepping up to the plate and putting their integrity and their reputation on the line.”
McCrory told reporters that Rudo had committed “exaggerations and mistruths” in his deposition.
“Gov. Hunt’s administration had the same issue with this individual regarding exaggeration and not telling the truth that we’re having now,” McCrory said of Rudo.
McCrory was referring to long-running tensions that boiled over in the mid-1990s between an N.C. State University researcher, JoAnn Burkholder, and state regulators. The Hunt administration’s top environmental official had to issue a public apology to Burkholder after she said the head of water quality and the state health director had denigrated her work.
Burkholder had discovered pfiesteria in the late 1980s and believed the state was ignoring the threat to waterways posed by that toxic algae. She was described in newspaper accounts at the time as someone who often skirmished with regulators and other scientists.
Amid that atmosphere, Rudo wrote a memo to the state health director questioning Burkholder’s emotional stability after a phone conversation in which she said the director “deserved to die,” according to the memo. After the memo was leaked to the news media, it turned out Burkholder was taping the call, which she played for reporters. Rudo had misquoted her: She actually said the health director and other officials should “rot in hell.”
Testifying against corporations
Rudo has testified extensively in depositions and in courtrooms, both in his state role and on the side as an expert witness around the country.
His work has followed a timeline of American environmental battles over the past three decades: a produce giant sued in a pesticide case over a boy born without arms and legs to tomato pickers, tainted drinking water near a landfill, polluted emissions from a wood-chipping factory, North Carolina’s hog wars, mercury in fish near a paper mill and gasoline additives.
Rudo tried to ‘frighten plaintiffs and the jury and tar ExxonMobil with the brush of an alleged industry conspiracy...’
Lawyers in civil lawsuits typically attack each other’s expert witnesses, who can be persuasive in front of a jury. Rudo has been on the receiving end of those encounters.
In a case in 2009, ExxonMobil Corp. asked for a new trial based on Rudo’s testimony in a case brought because of a massive leak of gasoline in Maryland. That case and a related one resulted in near-record jury verdicts of $1.6 billion total.
Part of Exxon’s argument for a new trial was its claim that Rudo’s testimony overstated the health risks of the gasoline additive MTBE, and was “highly prejudicial and inflammatory.” Rudo had tried to “frighten plaintiffs and the jury and tar ExxonMobil with the brush of an alleged ‘industry’ conspiracy to subvert scientific research,” the company said in court records. An appeals court reversed most of the award for punitive damages, although not because of Rudo.
Another time he went up against Dow Chemical over contamination at a trailer park in Louisiana. He was not allowed to testify as an expert because the methodology of an affidavit he prepared was successfully questioned.
But most of Rudo’s work has been the routine assessment of risks faced by people who live near pollution in the air, ground or water. He has been with the state health agency for 27 years, after graduating with a doctorate from N.C. State.
Only official they trust
Some North Carolina well owners see Rudo as the only state official they can trust. He called and visited hundreds of households to answer questions when the do-not-drink notices went out.
Amy Brown of Belmont, one of the 400 people who has been living on bottled water from Duke Energy for more than a year, said Rudo offered comfort amid uncertainty. When the warning notices were rescinded this year, she said, many coal ash basin neighbors were worried that politics had taken over from science.
The people Rudo has helped, she said, are livid at the governor’s accusations.
How dare you try to make it look like this man is a liar when his whole career has been about protecting people?
“How dare you try to make it look like this man is a liar when his whole career has been about protecting people?” she said.
Brown said Rudo never injected politics into their discussions nor assigned any blame. He is a registered Republican who says he voted for McCrory in the last election.
Last year Rudo grew frustrated at what he said were attempts by the state Department of Environmental Quality to soften the do-not-drink notices that would go out. That March, he emailed a colleague to say he would not allow his name to be included as the contact point on the notices. “I cannot, from an ethical and moral standpoint, put my name on a form with this absolutely untrue human health statement,” he wrote.
Early this year, Dr. Randall Williams, who was named state health director after the June 2015 notices were issued, said it was time to rescind them. He said the department had been acting out of an abundance of caution but now thought it was safe to drink the well water, even though the wells had not been treated or tested further since the notices were issued.
Rudo said he was stunned.
“I believe this is highly unethical and possibly illegal,” he wrote in contemporaneous notes that were read into the deposition. State public health officials had never been asked to retract any of the more than 150,000 health risk evaluations they had done, he wrote. “It is not right to be asked to do this, and I will not do this.”
It is not right to be asked to do this, and I will not do this
Fear of cancer misinterpreted
The N.C. Department of Health and Human Services declined to make Williams available for this story, referring inquiries to previous interviews on the subject and to his deposition.
In his May deposition, Williams said he initiated rescinding the warning notices because he thought they were stirring up unwarranted fears.
Williams’ testimony shows the governor’s office kept close tabs on the issue and told Williams that his agency couldn’t use the new data until the state’s environmental department had vetted it.
A week after saying he wouldn’t put his name on the notices, Rudo was called to the governor’s office, he said in his deposition – something else that had never happened before. Last week, after a partial transcript of Rudo’s deposition was filed in court, the governor’s office said Rudo lied under oath when he said in the deposition that McCrory had participated in a meeting about how to word the do-not-drink notices.
But the governor didn’t contradict Rudo’s testimony that he was meeting with the governor’s communications director, his aide and the DHHS communications director when McCrory called. He said the governor and communications director Josh Ellis discussed the issue for two or three minutes. Afterward, Ellis wanted to know whether the wording in the notices could be downplayed, Rudo said.
DHHS last week issued a statement disavowing Rudo’s position on the warning notices and saying trial lawyers from “an extreme left-wing environmental group” were trying to mislead the public by publicizing testimony that would be inadmissible in court. Excerpts of Rudo’s deposition have been filed in court, where they are public record, by the Southern Environmental Law Center and by Duke Energy.
Duke Energy has asked a judge to keep the full deposition, once it’s completed, under seal until it can evaluate Rudo’s motives and credibility.
Rudo continues to report for work, where state personnel laws protect him from being fired without good cause.