War of words reignites NC agency fight over water contaminiation

Tom Reeder

RALEIGH — Conflict between two state regulatory agencies reignited Tuesday evening when the testimony of Dept. of Health and Human Services (DHHS) toxicologist Ken Rudo was leaked to media accusing Gov. Pat McCrory and top-level staffers, including some at the Department of Environmental Quality (DEQ), of interfering in ‘do-not-drink’ recommendations for private wells around coal ash ponds. In a July 11 deposition in the lawsuit brought against Duke Energy by the state, the Sierra Club, and other environmental groups, Rudo claims he was ordered to attend an unusual meeting during which he was pressured, with the governor on the phone, to amend a notice to nearly 400 families on well water near the site of 2014 coal ash spill. Rudo’s testimony is contradictory, in one place saying the meeting was called by state health director Dr. Megan Davies and in another by Kendra Gerlach, communications director for DHHS, but implying that the meeting was at the insistence of Gov. McCrory, something that all others involved quickly denied in a late-night news conference Tuesday. “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 Thomas Stith, McCrory’s Chief of Staff. “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 said Tuesday, “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.”The discussions happened following two rounds of well water testing performed by contract labs. The results were sent to DEQ, who in turn sent them to DHHS. While most of the well water tested met federal standards, Rudo’s group issued notices to 89 percent of the 476 wells tested, telling residents not to drink their well water, causing confusion and a drop in property values. The well water recommendations eventually provided language that regulators from both state agencies wanted included. The accusations from Rudo come eight months after the first recommendations on well water were sent to residents and in the midst of a tight election battle between McCrory and state Attorney General Roy Cooper. The state’s Sierra Club chapter has endorsed Cooper in the race. Rudo has insisted to media that he is not politically motivated and that he is a registered Republican, however his records show that he only voted in Democratic primaries prior to this year.The two agencies have aired their respective positions before. In January, DEQ Assistant Secretary Tom Reeder told the state Environmental Review Commission (ERC) that the levels DHHS used for chromium and vanadium are so stringent that users of 70 percent of public water systems in the country would be told not to drink their water if DHHS’s standard were used. The level DHHS used for chromium is more than 1,400 times more stringent than the federal standard, and there is no state or federal standard for vanadium.DHHS officials admitted in the January testimony that the levels found in the well water were most likely caused by naturally occurring levels of vanadium and chromium, levels that data show are exceeded by many wells and most large public water systems in North Carolina. Rudo testified in the July lawsuit that he issued the “do not drink” orders, and Reeder, along with the governor’s communications director, Josh Ellis, stepped in and added language to the notification. Rudo appears to refer to a sentence in the notification stating that “your well water has been determined to meet all the criteria of the federal Safe Drinking Water Act for public drinking water.” Rudo’s testimony does not appear to dispute that the added sentence is true, just that it would be confusing alongside the recommendation not to drink the water. “They wanted language put on there that stated, in essence, we were overreacting in telling people not to drink their water,” said Rudo in the testimony. In March DHHS reversed Rudo’s initial decision, telling residents who used about 300 of the wells that they could, in fact, drink their water.Turf battles go publicInsiders in the department say that this is actually an ongoing inter-agency battle that started with Rudo, a 30-year employee in the DHHS health risk management group, who current and former staff members at DEQ say is regularly engaged in power struggles centering on his role to enforce health standards related to water quality. One source said the meeting between career public water system regulators from DEQ and career public health officials from DHHS on the thresholds related to well testing was among the most tense the source had ever attended. DEQ researchers say that, over the years as scientific testing technology improves and is better able to detect smaller and smaller concentrations of contaminants, the thresholds for allowable contamination can get more stringent. This process has caused strife within the ranks of regulators, state agencies, political interest groups, and owners of public water systems (including municipalities and counties).How it startedThis political football kicked off two years ago when Duke Energy’s Eden plant spilled coal ash into the Dan River. Fears about contamination near coal ash ponds intensified, and the legislature mandated testing of private wells near the ponds, which are scattered from Asheville to Wilmington across the state. Coal ash is left over when coal is burned to produce electricity.Once test results came in, Rudo’s job was to determine whether residents’ well water was safe to drink. The notices caused debate and confusion, while property owners were left with reduced home values. In January DEQ researchers testified to the ERC that the confusion may have been damaging and unnecessary, while DHHS admitted that the property owner’s water may actually be safer than water provided by many large cities in North Carolina. “Most of the major cities in the United States, including all major metropolitan areas in North Carolina, provide water every day to their customers that would technically receive a ‘do not drink’ notification from the Department of Health and Human Services,” Reeder said in January. “That’s because we have so much metal in our groundwater, and so much metal naturally occurring in our water here in North Carolina. All the major metropolitan areas have it.”Since the “do not drink” orders were issued, property owners have been connected to municipal water systems or in some cases provided with bottled water. But representatives from both state agencies point out that it is highly likely that the municipal water or bottled water would fail to consistently meet the extremely tight DHHS thresholds. Data provided by the Division of Water Resources, the state agency that regulates public water systems, show that 92 of the state’s 131 public water systems would fail one of the two thresholds set by Rudo.”Something just doesn’t seem right at all about that,” said Robert Massengill, director of the Public Utilities department for the city of Raleigh following the January hearing. “We are trying to get clarification to find out where they came up with those numbers, what assumptions they’ve made, and what the implications are for public drinking water standards because right now we don’t have a standard for that and we are at a non-detect level anyway.”The high threshold established by Rudo and DHHS was the subject of much of the hearing in January causing several legislators, including Sen. Stan Bingham (R-Denton), to raise doubts about the usefulness of the levels chosen by DHHS.”If we’re not testing bottled water, then we may have given some of these folks water that they’re drinking that has more pollutants in it than what they’re drinking from the well that y’all say is unsafe to begin with. Is that correct?” “Yes sir, that is a possibility,” answered Dr. Megan Davies, the acting state health director. Since that January hearing, work to provide accurate information to residents while also ensuring a safe water supply faced some internal heat. In an argument several weeks ago, Rudo reportedly threatened to lay the ‘do not drink’ story at the feet of McCrory, facing re-election in November, by testifying that McCrory initiated meetings and intervention through staff. That testimony was then leaked to several news outlets Tuesday.This is not the first time Rudo has caused a political feud for his state agency over what appears to be a bureaucratic turf battle. In the early 1990s, the then-secretary of the Department of Health and Human Services was forced to make an unprecedented public apology after one of Rudo’s memos was leaked to the media and later found to be untrue when an audio recording of his conversation surfaced. While several sources inside state government say that Rudo’s inter-office squabbles are common, this one is taking on a hard-hitting political life of its own. Progress NC Action, a liberal advocacy group, is already promoting the Rudo statements in social media posts attacking McCrory. As of press time, Rudo had not returned requests for interview or comment, but since the release of his testimony late Tuesday, media buyers who track the N.C. governor’s race say that the Southern Environmental Law Center has already purchased hundreds of thousands of dollars in air time over the next several weeks. The content of the ads is unknown, but they are scheduled to run in all the major N.C. media markets.