Fax doesn't answer key questions in coal ash-drinking water controversy
Posted December 2, 2016
Raleigh, N.C. — Those following the ongoing battle over coal ash in the state have long been waiting for a key record: A fax sent from Gov. Pat McCrory's office to the Department of Health and Human Services that contradicted the advice of state scientists about what to tell well owners about contamination of their drinking water.
DHHS produced that record Friday, following a lawsuit by a coalition of media and public interest groups, including WRAL News. While the fax isn't exactly a smoking gun – it's not signed and contains only three paragraphs – it does reinforce assertions that controversial language originated with the Governor's Office.
"That is the language that the (DHHS) scientists felt was highly misleading to the public," said Nick Torrey, an attorney with the Southern Environmental Law Center, a group that has both sued the state to force coal ash clean up and that was a party to the public records suit.
Spokesmen for the Governor's Office did not respond to requests for comment Friday evening.
The fax was part of sequence of events that led to high drama this summer.
Testing in 2014 showed high levels of toxic chemicals in wells near unlined coal ash pits used by Duke Energy to store the waste produced after coal is burned for fuel. Soon after, the state warned well owners not to drink their water. Then in 2015, they backtracked on that warning in some cases.
In particular, one group of well owners was told that they should not drink their water, but the notice added, "Your well would still meet all the criteria of the federal Safe Drinking Water Act for public drinking water sources."
DHHS scientists, in particular, toxicologist Ken Rudo, objected to that language, calling it misleading. The language seemed to be walking back the warning that the letter was intended to deliver.
Rudo, during depositions in cases brought by the SELC, told lawyers that McCrory, a long-time Duke employee, was involved by phone in a meeting that soughtto bridge differences between DHHS scientists and those working for the Department of Environmental Quality. Environmental groups have said that suggested McCrory could have been intervening on behalf of his old employer.
Administration officials have long said that the language in question was developed cooperatively between DHHS and DEQ.
Rudo's deposition provoked an extraordinary reaction from the administration, with McCrory Chief of Staff Thomas Stith accusing Rudo of lying and insisting that McCrory was in no way involved in that meeting. Amid the war of words between the administration and Rudo, the state epidemiologist quit, saying that McCrory and his subordinates were spinning a "false narrative."
In a deposition released this summer, Kendra Gerlach, a spokeswoman for DHHS, told lawyers under oath that she had been instructed to make the changes Rudo objected to in the do-not-drink letters after the meeting at the heart of the Rudo controversy.
During her deposition, a lawyer asked Gerlach about Rudo's objections and the DHHS' hopes that the language about federal standards would not be included in information sent to well owners. Gerlach said she included the language in the letters at the direction of someone in the Governor's Office.
"I received a fax with a sentence to be included," she said. Asked who sent the fax, Gerlach said she didn't know. "It came from the communications office, but I don't know the individual," she said.
The fax released Friday confirms Gerlach's testimony and bolsters Rudo's story, but it does little to shed light on who, specifically, called for the change in language.
"Obviously, it's concerning that the Governor's Office, and probably communications people in the Governor's Office, are inserting language into public health communications," Torrey said.