“Silence equals guilt” and other internal DEQ, DHHS discussions about coal ash

“Silence equals guilt” and other internal DEQ, DHHS discussions about coal ash

- in Environment, Featured Articles
A memo from the Department of Health and Human Services about the possible fallout from a deposition given by state toxicologist Ken Rudo.

“Liberal groups” launched a “coordinated attack” earlier this year on the NC Department of Environmental Quality over coal ash, according to a top-level official at the agency.

Crystal Feldman, DEQ deputy secretary for public affairs, told a Greensboro News & Record reporter that environmental organizations were more interested in “scoring political points and fundraising”  than science when they wrote a letter to Gov. Pat McCrory over concerns about seemingly contradictory decisions about safe levels of hexavalent chromium in drinking water wells.

Feldman’s email was included in 1,200 pages of public records about the health risks of coal ash contamination in drinking water. The Department of Health and Human Services provided the records, which include internal conversations between its officials and the Department of Environmental Quality. The records were requested by a coalition of media and nonprofit groups. (Scroll to the bottom for links to the records.)

Feldman’s statement, along with other officials’ handwritten notes and emails, show the extent of the anxiety over — and politicization of — the agencies’ attempts to assuage well owners’ fears their water was contaminated. The documents also reveal how the two agencies tried to lasso the media, often scolding reporters whom they felt were reporting the controversy inaccurately, or at the very least, not to their liking. And yet other documents indicate Duke Energy’s frustration with DHHS over the do not drink orders, as well as the utility’s legal calisthenics to seal the deposition of state toxicologist Ken Rudo.

This memo underscores that both DHHS and DEQ decided to issue do not drink, and then subsequently, do drink orders. HREs means “health risk evaluations”.


A draft “do drink” letter to well owners circulated among agency officials for input, is a common practice. However, there is a strike through (in bold in the text here)  in the paragraph, “Given what we have learned, we now believe it is appropriate to recommend to well owners to use their water just as other people use municipal and new and old well water [that has been deemed safe] with similar levels of the same elements.”

A safe level of hexavalent chromium in drinking water has not been set by the EPA; the federal government has set a threshold of 100 parts per billion for total chromium, which combines two types, 3 and 6. For well owners nears coal ash facilities, the state eventually set a level of 0.07 parts per billion for hexavalent chromium, which equals a 1 in 1 million cancer risk.

One memo appears to lay out talking points in anticipation of questions about he “do drink” orders sent to residents that had previously received “do not drink” orders because of contaminant levels in their drinking water.

[Assistant DEQ Secretary Tom] Reeder: “It’s safe to have 100 parts per billion of hexavalent chromium in their water.”
“Would you drink the water yourself?” “Yes.” (emphasis original)

A note stuck to the top of an April 27, 2015, DHHS email reads “Megan [Davies], Ken Rudo, Mina Shehee refuse to participate any longer.” This reflects the ongoing tempest between the agency scientists and their higher-ups, many of whom are political appointees. For example, in his deposition, Rudo had disagreed with how DHHS and DEQ officials’ arrived at safe levels of hexavalent chromium in drinking water for the “do drink” letters.

Subsequently, Gov. McCrory, via his chief of staff, Thomas Stith, excoriated Rudo in a late-night press conference and accused him of lying under oath. Davies subsequently resigned over Rudo’s treatment and the lack of scientific rigor in developing the health risk evaluations.

“Rudo an activist?” another memo reads.

In this memo, Josh is Josh Ellis, communications director for Gov. Pat McCrory.

The agencies were particularly concerned about the content of Rudo’s depositions. Parts of his first deposition were leaked to the press after Duke Energy successfully petitioned a judge to seal it. Rudo’s testimony and another deposition in September were damning to DEQ and DHHS. In his depositions, he outlined how he was asked to come to the governor’s office, where he says he was questioned by the governor via Josh Ellis, the communications director, about safe levels of hexavalent chromium in drinking water.

“Desire to defend the organization while not compromising our legal standing,” reads a memo. “We will continue to have flare-ups. Trigger points will be each deposition and if DEQ releases its source determination.”

That memo also tries to calm fears the issue is escalating: It calls the Megan Davies deposition, also very critical of the agencies, a “Friday evening flash in the pan.”

“Outside of these, public interest has largely died down with the exception of the two that have found their life’s calling.” Those two are Amy Brown and Deborah Graham, who live near Duke Energy coal ash plants and are using solely bottled water provided by the utility because their well water isn’t safe to drink.


On June 25 2015, after DHHS and DEQ issued the do not drink letters, Duke Energy attended a meeting at the governor’s mansion. There are still questions about who attended that meeting and the substance of the discussions. On June 4, Duke vice president Harry Sideris sent a letter to DEQ Secretary Donald van der Vaart complaining that the do not drink letters had “confused and concerned Duke Energy and many of our customers.” DEQ had issued do not drink orders to well owners while also stating it met the federal Safe Water Drinking Act. But what state agencies had failed to mention is that there is no federal drinking water standard for hexavalent chromium.

Duke requests a meeting with DENR and DHHS to discuss the change in drinking water advisories and other scientific and health data. Gov. McCrory was copied on the letter.

Duke followed up on July 1 with Megan Davies, the state epidemiologist, complaining that the standards set by DENR and DHHS were again contradictory. The utility also pointed out that some municipal water supplies had levels of hexavalent chromium above the standards set for private well owners near coal ash facilities — the same points that DEQ and DHHS later made.


Another memo from DHHS to the governor’s office says, “When (sic) doesn’t get in the press in the beginning the way we want, can be hard to get under control. … Disengage from editing and wordsmithing. Our scientists have their professional opinions and that won’t change.”

“How many ways can we say the water is safe? Let go.” handwritten at bottom of correspondence between DHHS and Winston-Salem Journal reporter Bertrand Gutiérrez. Other talking points to the journalist include “This was an internal dispute. [It’s] insulting you think I can’t push back on a story I think is inaccurate. I’m not going to apologize for pointing out errors in your story.”

If DHHS didn’t get the response it wanted, the next course of action was to “call news editor. Keep saying what we’ve been saying. Want your paper to have a chance to get the story right without us having to send a letter.”

Call Josh [Ellis] We contradict ourselves in the same graf. Warned him repeatedly. Do not agree. They are making decisions against out advice. Confusion.”

On one page, which had no email address, included only a quote from conservative columnist George Will: “You can’t debate someone rationally who has arrived at their beliefs irrationally.”


Some of the contents have already been reported, such as media clippings and partial  depositions of Josh Ellis, Gov. McCrory’s communication director; state toxicologist Ken Rudo and state epidemiologist Megan Davies; they were deposed by the Southern Environmental Law Center.

Public records_DHHS_DENR_coalash_part1

Public records_DHHS_DENR_coalash_part 2

Public records_DHHS_DEQ part3