Deposition testimony: McCrory's office made change to coal ash letter

Deposition testimony: McCrory's office made change to coal ash letter

RALEIGH, NC (WBTV) - Communications staff in Governor Pat McCrory's Office made changes to a letter sent in 2015 warning homeowners with drinking water wells near Duke Energy coal ash facilities not to drink their water, according to testimony given by the communications director for the North Carolina Department of Health and Human Services.

The revelation came as part of a deposition given by Kendra Gerlach, the DHHS Communications Director, as part of an ongoing legal battle over coal ash facilities.

At issue in Gerlach's deposition was the process behind the decision to send a series of letters to residents who use water wells near coal ash facilities.

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The first letter, commonly referred to as the 'Do Not Drink' letter was sent in June 2015. It advised residents to not drink their water because it could pose an increased safety risk due to elevated levels of a chemical known as hexavalent chromium, the toxic substance at the center of the popular Erin Brockovich movie.

Regulators at DHHS and the North Carolina Department of Environment and Natural Resources - which has since been renamed the Department of Environmental Quality - jointly developed the criteria used to issue the original 2015 letters.

Less than a year later, in April 2016, regulators sent a second letter reversing the order and telling residents it was OK to drink their water.

Questions continue over meeting with McCrory staffer

A bulk of Gerlach's testimony focused on a meeting she attended on April 2, 2015 with Josh Ellis, McCrory's Communications Director and, eventually, Dr. Ken Rudo, a state toxicologist at DHHS.

Rudo has testified that he was summoned to the meeting at the Governor's office on his way home to start vacation. He has also said McCrory participated in the meeting by phone.

Both Ellis and McCrory's Chief of Staff, Thomas Stith, dispute Rudo's characterization of the meeting. Stith released a written statement and called a late night press conference in August in which he accused Rudo of lying under oath.

Rudo pushed back on that accusation in a second deposition given in August, that was also made public on Thursday.

"I think I've been treated by McCrory and his folks that work under him in a very mean, nasty, heartless, soulless way," Rudo said. "They chose not to talk to me. They chose to come after me – little old me just by myself."

Document: Read the transcript of Rudo's second deposition

In her deposition, Gerlach testified that she initiated the meeting with Ellis to review a draft of the 'Do Not Drink' letter that staff at DHHS hoped was close to final. Gerlach testified that Rudo eventually came to the meeting—it remains whether he was asked, director or volunteers to come depending on whose testimony you read—to answer technical scientific questions involved in issuing the letter.

In his deposition, Ellis testified that he reviewed the letters as McCrory's Communications Director to help craft a final version based upon what regulators at DHHS and DENR proposed.

Ellis said he did not make any changes to the substance of the 'Do Not Drink' letters.

Gerlach's testimony points to changes from McCrory's office

A point of debate amongst regulators within DENR and DHHS was whether to include language in the 'Do Not Drink' letters advising well owners that their water still met federal safe drinking water standards, despite exceeding a stricter health standard set using guidance from a recently-passed state law.

Documents provided by DHHS in response to the release of Gerlach's deposition show regulators—from DENR Assistant Secretary Tom Reeder to Rudo at DHHS and various levels of supervisors in between—went back and forth on how to include that disclaimer and other language.

Read: Documents provided by DHHS showing deliberations on coal ash letter

The final version of the 'Do Not Drink' letter that was sent to well owners included the following sentence:

"While this recommendation represents the maximum in health protection, your well would still meet all the criteria of the federal Safe Drinking Water Act for public drinking water sources."

A similar version of that sentence was also included in an earlier draft of the letter but later removed.

In her deposition, Gerlach said the sentence was added back to the letter by DHHS after being instructed to do so by the Governor's Office.

"I received a fax with a sentence to be included," Gerlach testified. "It came from the Capitol building."

The Governor's Office is located in the Capitol building.

Gerlach said testified that she did not know who, specifically, sent the fax but that it came from staff in McCrory's communications office.

In her deposition, Gerlach testified that she retained a copy of the fax transmission in her files but a spokeswoman for DHHS did not provide a copy of the fax along with the other email documents Thursday night.

Regulators met with Duke Energy

Gerlach also testified that regulators from DHHS held at least one telephone conference with staff from Duke Energy to discuss coal ash.

According to Gerlach's deposition testimony, staff from Duke held a telephone conference with scientists and regulators at DHHS sometime before the second 'OK to Drink' letters were sent to well owners in 2016. During her testimony, Gerlach could not remember if the call had happened before the 'Do Not Drink' letters were sent.

Gerlach also testified that she did not remember what was discussed on the call and did not take notes.

A spokeswoman for Duke Energy did not dispute the notion that a call took place and said company officials were working to understand the new regulations being promulgated by DHHS and DENR related to coal ash.

"We were asking the state the same questions residents were," Duke spokeswoman Paige Sheehan said Thursday night. "We were trying to understand why we were different than anyone else in the nation. Trying to understand how they arrived at this standard."

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