Deposition: McCrory summoned toxicologist in midst of ‘unethical’ coal ash decisions

Published 12:10 am Wednesday, August 3, 2016

By Josh Bergeron

SALISBURY — Details of a toxicologist’s deposition paint a scathing picture of state government’s involvement in the handling of potential coal ash contamination near Duke Energy facilities.

State officials deny the claims.

State Toxicologist Dr. Ken Rudo says the state acted unethically in telling neighbors of coal ash ponds that their well water was safe to drink, according to a partial deposition released Tuesday in a lawsuit between the Yadkin Riverkeeper and Duke Energy. In the midst of sending out health risk evaluations, Gov. Pat McCrory also summoned Rudo to his office, according to the deposition.

The revelations come as attorneys at the Southern Environmental Law Center and Duke Energy argue over whether a federal judge should allow Rudo’s full deposition to be released. The SELC released a partial deposition in a filing on Tuesday. However, the Associated Press has obtained a full copy of the 220-page deposition given last month by Rudo.

The state health director’s job is to protect public health,” testified Rudo, who has been the state’s toxicologist for nearly 30 years. “And in this specific instance, the opposite occurred. He knowingly told people that their water was safe when we knew it wasn’t.”

In his deposition, Rudo says his boss — State Health Director Randall Williams — questioned whether the state’s one-in-a-million cancer risk determination was too strict when applied to well water near coal ash ponds. After previously telling hundreds of well owners near coal ash ponds that water was unsafe to drink, state officials would later tell the same owners their water was safe to drink. A small portion of well owners were recently told again their water was unsafe to drink.

The wells in question include numerous ones in the Dukeville community next to Duke Energy’s Buck Steam Station in Rowan County.

At one point during the back and forth, Rudo says he was summoned to Gov. Pat McCrory’s office. Rudo spoke with McCrory on the phone and with McCrory’s Communications Director Josh Ellis in person, according to the deposition. Rudo said McCrory and Ellis were concerned that hundreds of people were going to be told their water was unsafe to drink.

“And then they are very surprised to see that what we do is all science based, peer reviewed and published science,” Rudo said. “We vet everything that we do. We do our homework. We explain what we do to the people.”

Rudo said he has never been summoned by a governor before to discuss a public health matter. He left the meeting, went on vacation and came back to see that a number of health risk evaluations had been pulled.

The governor’s office did not respond to requests for comment about the meeting, but issued a statement later in the day saying Rudo lied under oath.

“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,” said McCrory’s Chief of Staff Thomas Stith. “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.”

The N.C. Department of Health and Human Services also attempted to discredit Rudo’s claims in a statement issued Tuesday afternoon. The agency said McCrory didn’t participate in the meeting or summon Rudo to the meeting.

During his deposition, Rudo was asked to read aloud several of his notes during the back and forth over health risk evaluations. In January, Williams, the state health director, instructed Rudo to retract all health risk evaluations for coal ash pond neighbors. At the time, Rudo wrote in his notes that rescinding the health risk evaluations would be “highly unethical and possibly illegal.”

“It is not right to be asked to do this, and I will not do this,” Rudo wrote in his notes.

Citing First Ammendment rights, the SELC has argued that Rudo’s full deposition should be released publicly. Duke and its attorneys “have no right” to stop the public from learning the full contents of Rudo’s deposition, the SELC says in a recent court filing.

“In government, sunshine is the best disinfectant,” the SELC’s filing states.

Duke Energy has argued that Rudo’s deposition is “based on inadmissible hearsay. Releasing it could result in “trial by media,” the company says.

“Any limited public interest in Dr. Rudo’s partial deposition transcript is largely outweighed by the substantial material prejudice that dissemination of the partial transcript is likely to cause Duke Energy to suffer,” the company said in a July 19 court filing.

Both Duke Energy and the SELC have released excerpts of Rudo’s deposition. The release by the SELC is the most scathing of the pair. SELC notes that Duke Energy hasn’t blocked the release of testimony by other state officials.

“The only difference appears to be that Dr. Rudo’s testimony is so significant and important that Duke and its counsel do not want North Carolina’s public and press to learn its contents — except portions that Duke and its counsel have selected,” the SELC filing states.

Although Rudo’s deposition has taken center stage, the Yadkin Riverkeeper’s suit dates back to September 2014 and focuses on alleged illegal discharges from Duke’s coal ash ponds in Rowan County. Duke Energy, in fact, has admitted that thousands of gallons per day of coal ash leak from its coal ash ponds into the Yadkin River and High Rock Lake.

Regardless of whether state government considers their water safe, members of the Dukeville community live on bottled water. Yard signs dot the rural community, pleading for clean water.

Dukeville is scheduled to receive municipal water as part of a county-owned water system, but that project is more than a year away from completion. Construction hasn’t started.

This story contains content from the Associated Press.