Toxicologist says state misled people about well water safety

A state toxicologist said in a deposition that the state was misleading homeowners about the safety of well water drawn from sites near coal ash ponds.

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Mark Binker
RALEIGH, N.C. — North Carolina officials, including the state health director, misled homeowners about the safety of water drawn from wells near unlined coal ash pits, according to the partial deposition of a state toxicologist filed in federal court Tuesday.

In the same deposition, Kenneth Rudo reported being summoned to an unexpected meeting with Gov. Pat McCrory and members of his communications staff to discuss language used in letters warning residents about contaminants in their well water.

Rudo's sworn statement came as part of an ongoing court battle between environmental groups, the state and Duke Energy over cleaning up coal ash, the toxin-laced material left over after coal is burned for fuel. Environmental groups contend that contaminants from the unlined pits have crept into groundwater supplies near both retired and active Duke power plants. They have been pushing the company to remove the ash entirely and put it lined landfills, a prospect Duke has described as too expensive.

Throughout the litigation, the lawyers for the Southern Environmental Law Center have insisted the state has been too deferential to the energy giant.

Hundreds of well owners were told in 2015 that levels of hexavalent chromium, a carcinogen, indicated their water was unsafe to drink. Those warning letters were rescinded this year over the objection of scientists like Rudo. Since then, the state has reversed itself again with regard to at least a few of those well owners.

In his deposition, Rudo insisted the health department should have maintained a clear message warning people away from drinking, cooking with or bathing with the water in question.

"But what happened recently is that, you know, the state health director's job is to protect public health, and in this specific instance, the opposite occurred. He knowingly told people that their water was safe when we knew it wasn't," Rudo said in his deposition.

Rudo is a career professional who has logged nearly 30 years with the Department of Health and Human Services. The health director, Dr. Randall Williams, is a McCrory appointee who had been in private practice until mid-2015 and did not participate in sending the original health warnings.

Officials with the state Department of Health and Human Services did not immediately respond to an email seeking comment. Hours after Rudo's deposition became public, DHHS Communications Director Kendra Gerlach emailed a statement contradicting both Rudo's conclusion and his recitation of events.

Although transcripts from other state officials have been disclosed, Duke sought to keep Rudo's sworn statements under seal, insisting that it was hearsay and that company lawyers had not had a chance to cross-examine him.

"Dr. Rudo's deposition is not nearly completed. Lawyers are just beginning to challenge Dr. Rudo's motives, his claims and his credibility," said Duke spokeswoman Paige Sheehan. "SELC knows that. No wonder they want the transcript released now."

She also said that SELC was using Rudo's sworn statement to inappropriately push the company to dig up all of its coal ash pits.

"SELC wants to saddle North Carolina families, businesses and communities with the most expensive, most extreme and most disruptive ash basin closure plan, without measurable environmental benefits. Our state would become an outlier," she said.

The SELC filed the partial transcript as part of a motion addressing why it should be able to roll out the entire document, and the group points out that Duke has selectively released portions itself.

"Indeed, while Duke and its counsel purport to want to prevent the release of the transcript, they have attached portions – but only selected portions – of the transcript to their motion," lawyers for SELC wrote in their filing Tuesday. "They claim that Dr. Rudo’s testimony is hearsay and inadmissible and should not be released, but at the same time, they have attached portions that they claim establish hearsay and inadmissible testimony – with no attempt to keep them confidential, despite their supposed concerns."

Coal ash has been a front-and-center topic on the North Carolina political and government scene since a Feb. 2, 2014, spill from a retired Duke plant sent tons of toxin-laced goop into the Dan River. The high-profile nature of coal ash was driven home by a piece of Rudo's testimony that describes leaving for vacation only to be summoned back to work in the first half of April to meet with McCrory and his staff.

In Rudo's version of events, he was called to a meeting downtown that included Kendra Gerlach, communications director for DHHS, Josh Ellis, who is McCrory's chief spokesman, and a few others. McCrory, he said, attended by phone and seemed mostly concerned about how warning letters to residents were worded.

"I think the thing that the governor wanted us to do was to try to explain to each person individually what their risk was, either numerically if possible. And that is just not something we are able to do on a health risk evaluation because, No. 1, as we explained to Mr. Ellis, the sample results are a snapshot of that day," Rudo's transcript reads.

Ellis did not respond to texts and emails requesting comment about why McCrory and his staff met with Rudo. Chief of staff for McCrory, Thomas Stith, issued a statement Tuesday night saying the meeting never occurred.

"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. 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," Stith's statement said.

"I was at that meeting," Gerlach said in a prepared statement. "The Governor did not participate in that meeting, nor did he summon Ken Rudo. I was the one calling our public health officials, including Rudo. During my call with Rudo, he volunteered to come by, and I said yes. He then joined Josh Ellis and me in person to answer some of the questions being discussed."

After that conversation, Rudo said in his testimony, he went on vacation only to later find that his department's warnings were being disputed by officials in the Department of Environmental Quality, who were much more sanguine about the health risks involved. He called the revised notices eventually sent to well owners, "misleading," saying the misrepresented what is known about hexavalent chromium.

"But it is also misleading and sort of – it is not cool to do that. It is just not a, this is not the kind of information we should be giving people, because it is misleading," he said.


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