That’s according to two depositions obtained by NC Policy Watch: New testimony by state toxicologist Ken Rudo and another by Kendra Gerlach, communications director for the Department of Health and Human Services.
Rudo’s deposition was taken on Sept. 14 by lawyers for the Department of Environmental Quality and Duke Energy. Gerlach was deposed by the Southern Environmental Law Center on Sept. 20.
Gerlach testified that at the behest of McCrory’s communications office, DHHS inserted language into the forms that could have downplayed the health risk of hexavalent chromium.
She received a fax from McCrory’s communications office in April or early May of 2015, she testified, “with a sentence to be inserted.” That sentence pertained to the federal Safe Drinking Water Act (SDWA) and hexavalent chromium. There is no federal standard for hexavalent chromium, also known as Chromium 6, so by referring to the SDWA could mislead well owners into thinking their water was safe to drink.
Gerlach said she doesn’t know who in the governor’s office recommended the language. However, in tandem with information in Rudo’s new deposition, it appears that McCrory did influence the information well owners received.
One of the main disputes in the case is whether McCrory participated in an April 2, 2015 phone meeting in which there was a discussion about the language and the level of cancer risk. In a deposition taken in July of this year, Rudo testified that the governor’s office had summoned him to the State Capitol for a meeting and that McCrory was on the call with him, Ellis and Gerlach.
“I was told by Mr. Ellis that he [the governor] wasn’t there and that he would call in,” Rudo said in the recent deposition. “The governor was in the meeting. He was on the phone. That is a fact.”
Rudo’s testimony conflicts with that of Josh Ellis, McCrory’s communications director, who, in his own deposition, denied that his boss was in on the call when the issue was discussed. However, now that details about the fax have emerged, it appears that unless Ellis independently decided to suggest new language, McCrory did have some role in its crafting.
From Rudo’s deposition:
“The issues that we were talking about — well, if it was Mr. Ellis and it was only his idea independent of McCrory —- in other words, he was doing something that McCrory knew nothing about —- I would think that would be inappropriate for making policy. Having the press secretary make policy, I would think, would be inappropriate unless McCrory was the one who told him this is what my concerns are, let’s talk to them and see what’s going on.”
Rudo said McCrory called Ellis on the communication director’s cell phone and that he could hear the governor’s voice. During the approximately four-minute conversation, Ellis and McCrory talked about an unrelated issue, and then McCrory listened to the discussion about the health risk language.
Gerlach testified she didn’t know it was the governor who had called Ellis. “I still don’t,” she said.
From Rudo’s deposition:
“You know, at this point, I am really not concerned with what Ms. Gerlach says or doesn’t say,” Rudo testified.“ I think it’s been established that the things she said already are not true. … She’s working at the behest of the governor. Even though she knew that I did not do this on my own and set the standard on my own, in a press release she implied that, knowing full well that we did not. … I can’t trust anything she says at this point.”
Rudo’s allegation that McCrory was on the call, prompted the governor’s chief of staff, Thomas Stith, to call a late-night press conference on Aug. 2, to dispute the claim. At that press conference, Stith alleged that Rudo had committed perjury — even though Stith had not read a transcript of the deposition.
After Rudo’s July deposition, not only the McCrory administration but DHHS officials and DEQ Assistant Secretary Tom Reeder circled the wagons, lambasting Rudo in a series of public statements, editorials and press releases.
DEQ lawyers asked Rudo last month about his previous comments that Reeder is “immoral and unethical.”
From Rudo’s deposition:
DEQ: “Those are strong words aren’t they?
Rudo: Absolutely. And he has truly, truly earned that. He has put out letters to the newspapers about me personally that were misleading, that were outright not true. Knowing that they weren’t true because he was involved in the work … to me that pretty much crosses that line of being immoral, unethical, untruthful … Mr. Reeder has so far crossed the line, I’m astounded by it and amazed by it.”
It’s also clear from both Rudo’s and Gerlach’s testimonies that there was intense conflict between DHHS and DEQ scientists over what to tell well owners about the health risks of drinking their water. Dr. Randall Williams, the state health director, decided to issue what’s known as “do drink” letters in 2016, which were essentially a retraction of the “do not drink” letters sent to well owners the previous year.
Williams’s concern, Gerlach testified, was that North Carolina’s health risk standard for hexavalent chromium would have been stronger than that of any other states, including California.
Reeder, according to previous testimony and emails, also vacillated on the language, approving it and rescinding it at least three times before both department secretaries agreed on it.
After the letters went out, Rudo testififed, Dr. Megan Davies, the state epidemiologist, asked him to “start calling everybody so we could make sure that the misleading statements that DENR [now DEQ] was putting in our health risk evaluation forms, that people understood what they were reading.”
Earlier this year, Davies resigned in protest over Rudo’s treatment and the conduct of DHHS.
Both DHHS and DEQ had emphasized that hexavalent chromium is found in public drinking water systems above the levels they were recommending in private wells. For that reason, the departments surmised, the water was safe.
“That was not a very appropriate public health protective or scientific thing to say,” Rudo testified. “It’s not an excuse for a public health department to tell people their water is safe when it isn’t. And to use as a reasoning that while it’s in public water systems, we consider it safe because we don’t have an MCL [maximum contaminant level]. There’s just no logic to that.”
Even though the standard for hexavalent chromium for wells near Duke Energy coal plants is .07 parts per billion, DHHS is still instructing its staff not to give a written health risk evaluation to certain well owners who live beyond Duke Energy facilities. In some cases, Rudo estimates from 50 to 70, their water contains levels of hexavalent chromium up to 10 parts per billion. Although some states consider that level safe, Rudo says the science indicates it is not without cancer risk.
“We are told to simply call people up and talk to them about it without telling them not to drink the water,” Rudo testified. “That is something we have asked our department the entire year to help us, give us guidance. They’ve ignored us.”