Gov. Pat McCrory summoned state toxicologist Ken Rudo to his office in early 2015 for a meeting during which a McCrory staff member challenged the advisory Rudo had helped draft telling well owners near coal ash pits owned by Duke Energy not to drink their water, according to recent testimony given in a deposition by Rudo.

The do-not-drink advisory, issued in spring 2015, has received a lot of attention, particularly after state health and environmental administrators overrode the advisory in March by telling well owners that their water is fine to drink.

It isn’t fine, according to Rudo.

Requested in early 2016 by Dr. Randall Williams, health director of the N.C. Department of Health and Human Services, and backed by Tom Reeder, the assistant secretary for the N.C. Department of Environmental Quality, the reversal of the do-not-drink advisory was “highly unethical” and “possibly illegal,” Rudo said in the deposition, excerpts of which were available to the public Tuesday.

Until now, the extent of McCrory’s involvement has been unclear.

Excerpts from Rudo’s deposition, part of coal ash litigation brought by clean-water watchdog organizations against Duke Energy, show that McCrory, a former Duke Energy employee for decades, was deeply involved with his administration’s attempts to challenge the scientifically backed advisory that Rudo and other state health experts had drafted.

Rudo had left his office when he received a call from state epidemiologist Megan Davies “telling me to turn around — I was almost at Chapel Hill — to go back, that the Governor wanted to discuss this. … So I went down to that big old building in downtown Raleigh, and the Governor wasn’t there.

“He participated for a couple of minutes by phone.

“So I met with — was it Josh Ellis? Is that his name? I am not sure. I think it is him. And he had an assistant,” Rudo said in the deposition, referring to McCrory’s communications director. The other person at the meeting was Kendra Gerlach, the director of communications at the N.C. Department of Health and Human Services, he said.

“And they wanted to talk about what we were putting on these forms. And the Governor called for about, I guess, five minutes or so to sort of — he was in the middle of some other issues. And I am not exactly sure, even from my notes, because it was — the guidance — whether he had given Mr. Ellis the guidance what to talk to us about before we arrived. But he essentially, you know, was saying, ‘Okay. We need to discuss the language on the forms.’ And then he left it to Mr. Ellis to do that,” Rudo said.

Later in the deposition, Rudo said Ellis had concerns about the do-not-drink advisory.

“Once again, I don’t know whether this was from Mr. Ellis or from the Governor, because the Governor never actually specifically said what, you know, his concerns were.

“But he had a concern about what we were telling these folks on the forms.

“Thier (sic) concern was initially telling people not to drink the water.

“He felt that was a pretty strong thing to do,” Rudo said.

Late Tuesday, Thomas Stith, McCrory’s chief of staff, denied Rudo’s allegations.

“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,” Stith said. “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.”

Gerlach disputed some of Rudo’s statements.

“I was at that meeting,” Gerlach said in an email.

“The Governor did not participate in that meeting,” she said,”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,” Gerlach said.

High stakes

At stake during that conversation at the governor’s office was the health of hundreds of well owners and their families, particularly those whose wells contained hexavalent chromium, a carcinogen associated with coal ash pits. Until last year, there had been no screening level for hexavalent chromium, no threshold by which to gauge its potential cancer-causing effect.

Rudo and other health experts in the DHHS and the DEQ helped calculate the threshold. They based it on peer-reviewed studies and the calculations were confirmed by the U.S. Centers for Disease Control and Prevention’s Agency for Toxic Substances and Disease Registry.

They calculated the health-screening threshold because it was one of the requirements under the state Coal Ash Management Act, a bill passed in 2014 as state legislators responded to the dangers of coal ash, after a pipe under a Duke Energy coal ash pond near Eden collapsed and spewed coal ash into the Dan River.

As a result, state regulators were required to check for a host of contaminants, including hexavalent chromium.

In setting the threshold for hexavalent chromium, state health experts such as Rudo also stuck to a state groundwater rule that requires a threshold that would put North Carolinians at a lifetime cancer risk of no more than 1 in 1 million.

For hexavalent chromium, that threshold is 0.07 parts per billion, or ppb.

The threshold the McCrory administration sought to promote was one connected with a federal standard that regulates public water systems but which the state health experts said was “unacceptable,” as the Winston-Salem Journal has reported.

Hexavalent chromium is not a regulated contaminant.

The U.S. Environmental Protection Agency has been collecting data on hexavalent chromium for years from public water systems in an effort to figure out how to regulate it. Meanwhile, there is a decades-old threshold for total chromium — one that assumes that it could be made up entirely of hexavalent chromium.

That federal threshold for total chromium, set at 100 ppb under the federal Safe Drinking Water Act, is the one that state health experts say is unacceptable.

The federal threshold comes with a lifetime cancer risk of 1 in 700, according to state health experts such as Rudo. In North Carolina, a large majority of public water systems show concentrations of hexavalent chromium below the threshold of 0.07 ppb, according to a Journal review of EPA data.

Safety questions

To a certain extent, the issue of safe drinking water for well owners near coal ash pits has been displaced by actions taken by the General Assembly. State legislators passed a bill — signed by McCrory — requiring Duke Energy to provide either permanent water supplies or a filtration system to eligible well owners within a half-mile of coal ash pits by October 2018.

Plans must be submitted by Dec. 15, according to the bill.

Still, Rudo’s testimony makes clear that the McCrory administration had pushed for the federal threshold — making decisions on public health that ran counter to those backed by its own state health experts. The testimony is also supported by emails obtained through public-records requests by the Blue Ridge Environmental Defense League and provided to the Journal.

Before Rudo was summoned to McCrory’s office, Donald van Der Vaart, one of McCrory’s Cabinet members, was pushing for the federal standard as secretary of the state DEQ. In an email written in early 2015 by state epidemiologist Megan Davies to colleagues, including Rudo, she said that Tom Reeder, the DEQ’s assistant secretary, would provide the message.

“Secretary Van der Vaart requested of (former Health) Secretary Wos that DHHS DPH (Division of Public Health) include additional explanation in our letter to local health directors about the plans for private well testing within 1000 feet of coal ash ponds.

“As you will see below, I spoke with Tom Reeder, and he will send me some suggested language for us to work on.

“The additional language will explain that the IMAC (threshold set by state health experts) for hexavalent chromium being used in these well evaluations does not apply to public water supplies, where the MCL (threshold) of 100 micrograms per liter of total chromium applies.

DEQ spokesman Mike Rusher on Tuesday tried to back the department’s continued support for the federal standard.

“The Safe Drinking Water Act is the only regulatory standard for drinking water in North Carolina,” Rusher said in an email. “The state environmental department had concerns about treating residents near coal ash ponds differently than the millions of North Carolinians who get their drinking water from municipal water supplies.”

In 2015, a statement about well water being fine under the federal standard found its way into the do-not-drink advisory as it was being sent to well owners, after the meeting at the governor’s office and against Rudo’s recommendations.

“There isn’t a standard for — there is no criteria specifically for — in the Federal Safe Drinking Water Act for hexavalent chromium. So it is a true statement, because there isn’t one. 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,” Rudo said in the deposition.

Later, he continued: “And we still objected, you know, from within our group.

“We have e-mails with our very, you know, strong objections. But, I mean, you know, when we are told to do something, we are told to do something. You know, there are lines that we can’t cross, both morally and ethically, which is why I removed my name from this at this point. But, you know, orders are orders.”

Protective order

Duke Energy had tried to seal Rudo’s testimony, saying in its request for a protective order that the testimony was not finished and that some of it is based on hearsay.

Portions of the deposition became available to the public Tuesday because it was part of the response filed by the Southern Environmental Law Center.

Gerlach, the health department communications director, said the department “stands by its decision to allow residents near coal ash ponds to return to drinking their well water, in keeping with safe drinking water practices across the country.” And she said that the release of Rudo’s excerpted deposition is “clearly a politically motivated attempt to manipulate and mislead the public by trial lawyers from an extreme left-wing environmental group.”

In the same email, Gerlach said Rudo “wanted the state to use a standard in the health risk evaluations (HREs) that was 143 times more stringent than California’s regulatory standard considered safe for drinking.”

However, the 0.07 ppb standard Rudo and other North Carolina health experts helped calculate — in accordance with the state groundwater rule allowing no more than a 1 in 1 million lifetime risk of cancer — was actually less stringent than the one that California state health experts had proposed in 2011 as their public health goal — 0.02 ppb. That threshold was ultimately increased to 10 ppb after state officials took into account non-health factors, such as the technical feasibility of enforcing the threshold and the associated costs.