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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA


CIVIL ACTION NO: 1:14-cv-00753
YADKIN RIVERKEEPER, INC., AND
WATERKEEPER ALLIANCE, INC.,

)
)
)
Plaintiffs,
)
)
v.
)
)
DUKE ENERGY CAROLINAS, LLC,
)
)
Defendant.
)
___________________________________ )

PLAINTIFFS BRIEF IN
OPPOSITION TO
DEFENDANTS MOTION FOR
PROTECTIVE ORDER
REGARDING SWORN
TESTIMONY OF DR. KENNETH
RUDO

Plaintiffs (the Conservation Groups) submit this opposition to the motion of


defendant (Duke) for protective order to prevent the public from learning the contents
of the sworn testimony of Dr. Kenneth Rudo, Environmental Public Health Toxicologist
in North Carolinas Division of Public Health.
Duke and its counsel have misused the processes of the Clean Water Act
enforcement action before the Court in an effort to delay or block the public from
learning the testimony of Dr. Rudo, a State environmental public health official. They are
asking the Court to take an unprecedented step to use the processes of a federal court to
prevent public access to a state public record, the testimony of a state public health
official concerning his official duties. Duke has cited no case where a federal court has
taken such an extraordinary step. In fact, Duke has not cited any case whatsoever.
The transcript of Dr. Rudos July 11 testimony is a public record and contains
critical information concerning public safety, the states drinking water supplies, and the
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conduct of public officials at the highest levels of North Carolinas government and
environmental and health agencies. The people of North Carolina should be able to view
this public record immediately in order to understand the risks of drinking their
contaminated water, as explained under oath by the States toxicologist. Duke and its
counsel have no right to stop the public of North Carolina from learning this information
of the highest public importance, nor do they have the right to subvert the First
Amendment rights of the press and the public by using the processes of pending federal
litigation to delay the release of this significant public information. Duke and its counsel
are improperly using the processes of this Court to try to impose a gag order to block the
public from knowing the sworn testimony of the States toxicologist.
Indeed, while Duke and its counsel purport to want to prevent the release of the
transcript, they have attached portions but only selected portions of the transcript to
their motion. They claim that Dr. Rudos testimony is hearsay and inadmissible and
should not be released, but at the same time, they have attached portions that they claim
establish hearsay and inadmissible testimony with no attempt to keep them confidential,
despite their supposed concerns.
More important, Duke and its counsel well know that the critical portions of Dr.
Rudos testimony are based on his direct knowledge and that he testified concerning the
health risks to North Carolinians from groundwater contamination. Duke and its counsel
are free to attach portions of the transcript to this motion because there is no law, no rule
of civil procedure, and no order of this Court or in the pending state court proceedings
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that prevents it. But Duke and its counsel cannot succeed at the sly maneuver of
revealing only the portions of Dr. Rudos testimony that they want to reveal.
To make things worse, Duke and its counsel are trying indirectly and improperly
to affect the rights of parties and communities not before this Court. This case deals only
with the unlined leaking coal ash pits at Dukes Buck site near Salisbury on the Yadkin
River, and the plaintiffs are the Yadkin Riverkeeper and Waterkeeper Alliance. The
deposition of Dr. Rudo, however, was taken in the pending state court enforcement
proceedings, which involve sites across North Carolina other than Buck, including
Dukes leaking unlined coal ash pits on the Broad River near Shelby; on Lakes Norman
and Wylie on the Catawba River near Charlotte; on Hyco and Mayo Lakes in Person
County near the Virginia line; and at Belews Creek on the Dan River.
Families with drinking water supply wells living around every one of these coal
ash sites have received communications from the State regarding the safety of their
drinking water, and they have a right to know the contents of Dr. Rudos testimony.
Moreover, the state actions include plaintiff-intervenor conservation groups
MountainTrue, Catawba Riverkeeper Foundation, Roanoke River Basin Association, and
Appalachian Voices, which are not parties before this Court and are not subject to the
motion before the Court or even Dukes proposed order. But they are represented by the
counsel for the plaintiffs in this action, the Southern Environmental Law Center.
In addition, Duke and its counsel have conspicuously not filed a motion in the
state court proceedings to block the release of the transcript. Indeed, in those
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proceedings, the State itself for which Dr. Rudo works has conceded and agreed that
there is no bar to the release of the transcript. To make matters worse, on three other
occasions both the State and Duke have conceded that there was no bar to the release of
deposition transcripts of three of Dr. Rudos colleagues: Dr. Mina Shehee,
Environmental Program Manager in the N.C. Department of Health and Human Services
(DHHS); Dr. Megan Davies, the State Epidemiologist; and Dr. Randall Williams, a
Deputy Secretary of DHHS. All three of those transcripts have been made public.
The only difference appears to be that Dr. Rudos testimony is so significant and
important that Duke and its counsel do not want North Carolinas public and press to
learn its contents except the portions that Duke and its counsel have selected.
As set out below, Dukes motion is baseless and should be denied.1
1

Also, Dukes brief contains false allegations and implications. Dukes counsel claims
that he has requested copies of [documents Dr. Rudo brought to his deposition] but has
yet to receive them from Plaintiffs counsel. Br. at 6 (ECF 80). In fact, some of the
documents are deposition exhibits, and exhibits have been provided by the court reporter
to all counsel. Further, as Dukes counsel should know, Dr. Rudo and counsel for DHHS
not Plaintiffs counsel retained the documents and promised to provide copies.
Duke and its counsel also wrongly state that a list of significant points from the
Davies deposition contains several overstatements and inaccuracies. Br. at 5. In a
footnote, they state that the list inaccurately suggests that Dr. Davies testified that she
flatly disagreed with DHHSs Do Drink letters. Id. at 5 n.2. In fact, the list cites the
reader directly to specific pages in Dr. Daviess deposition so that the reader can form
her/his own conclusion. http://f.cl.ly/items/0p2K0N3a3K0O1E2B1F0v/2016-0504%20Davies%20Deposition%20Notes.pdf. The list notes that Dr. Davies did not agree
with the decision to send out the Do Drink letter because water in the public water
systems is safer than the well water. In her deposition, Dr. Davies was asked: Now,
did you agree with the decision to send out this letter [the Do Drink letter]? Her answer
was No. In response to the question, Why, she testified that she did not recommend
the timing and that she felt that water in public water systems were safer. Ex. A
(Davies Tr.) at 22-23.
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I.

Dr. Rudos transcript is a public record, the State has not objected, and no
court order and no rule of civil procedure prevents its release.

Since Duke and its counsel have filed portions of Dr. Rudos transcript, they have
conceded that there is nothing to prevent disclosure of its contents.
Indeed, under North Carolinas public records law, Dr. Rudos testimony is a
public record available to the public. N.C. GEN. STAT. 132-1 et seq. This transcript is
the sworn testimony of a public official concerning his duties. The transcript has been
delivered to the N.C. Departments of Environmental Quality, Health and Human
Services, and Justice, and to Dr. Rudo. Since it is a transcript of testimony, it is not
within either the attorney-client privilege or the work product doctrine. Id. 132-1.1,
1.9(g).
Duke and its counsel have no special rights to deny the public access to what the
State Toxicologist has said under oath. The public records and public information
Duke and its counsel also attack an article by the Waterkeeper Alliance concerning
the content of Dr. Daviess transcript. The Conservation Groups invite the Court to
review Dr. Daviess transcript to see her opposition to sending the Do Drink letters and
her testimony that one or more higher officials overrode those concerns based on faulty
or no information, as the article sets out.
Nor is it true that Plaintiffs counsel misrepresented the risk rankings of coal ash
sites by DEQ professional staff, set out in a public document produced by the State, as
Duke and its counsel drop in a footnote. Br. at 5 n.3. Instead, that document did set out
the professional staffs recommendations just one month from the absolute final
deadline that many of the coal ash sites in the state, including Buck, be excavated. That
was information that the public had every right and need to know. After first rejecting
those recommendations in January 2016, DEQs political leadership had to reverse itself
and accept them in May 2016 when it was forced to conclude that every site, including
Buck, had to be excavated based on the facts, science, and the law. Although the
legislature has since amended North Carolinas Coal Ash Management Act to create
loopholes that may allow Duke Energy to avoid excavation, that amendment has no effect
on the Clean Water Act. 2016 N.C. Sess. L. 95 (H.B. 630).
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compiled by the agencies of North Carolina government or its subdivisions are the
property of the people. N.C. GEN. STAT. 132-1(b). Therefore, it is the policy of this
State that the people may obtain copies of their public records and public information.
Id.
Of course, there is no order of this Court blocking the public from viewing this
public record. In the state court proceedings, there is a case management order protecting
certain confidential information. Duke has not contended that there is anything in this
transcript that is protected from disclosure by that state court order. Ex. B (Duke counsel
email). Indeed, Duke has not filed a motion in the state proceedings attempting to block
the release of the transcript, which was taken in those state proceedings.
In fact, the State has not objected to release of this transcript of a State official
and has confirmed that there is nothing confidential in it. Ex. C (State email).
Nor is there any provision of the Federal Rules of Civil Procedure that prevents
the disclosure of the sworn testimony of a public official. See, e.g., Fed. R. Civ. P. 26.
On three separate occasions, Duke has stated that it does not object to the release
of deposition testimony by State officials who are Dr. Rudos colleagues in his agency,
testimony which deals with the same issues. Exs. A (Davies Tr.), D (Shehee Tr.), E
(Williams Tr.), Ex. F (Duke, DEQ, and DHHS emails regarding release of transcripts).
Indeed, the State has already released as public records Dr. Rudos emails
concerning his objections to absolutely scientifically untrue language included in the
States communications to well owners living near Duke coal ash sites, and they have
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been reported in the press. Bertrand Gutierrez, State Toxicologist: Claim that NC Well
Water Was Safe Was Scientifically Untrue, Winston-Salem Journal, July 31, 2016.2
These emails and this report address one important issue that Dr. Rudo explains at more
length in his transcript, information which Duke has sought to withhold from the public.
E.g., Ex. G (Rudo Tr.) at 58-59, 82-84.
Duke and its counsel claim that the transcript supposedly includes hearsay and
testimony that would be inadmissible in this proceeding. But there is no hearsay or
inadmissibility exception to the publics right of access public records or testimony of
public officials; the case management order in the state cases does not seal supposed
hearsay and inadmissible evidence, Ex. H (state case management order); this Court has
issued no such order; and there is no such provision in the Rules of Civil Procedure.
In short, Duke and its counsel have no legal basis for this motion.
II.

The Transcript contains testimony based on Dr. Rudos personal knowledge


and involvement and that bears directly on the issues before this Court.
In this action, Duke has relied heavily on the actions of North Carolinas state

government in defending its actions as to the water pollution and coal ash storage at the
Buck site. See Duke Br. Supp. Mot. to Dismiss at 8-16 (ECF 20-1) (relying upon actions
of N.C. Dept. of Environmental Quality (DEQ) to block federal action); Duke Mem. Law
Supp. Mot. to Stay (ECF 21-1) (relying upon DEQ actions to argue for stay in federal
action); Duke Br. Supp. Mot. for Judicial Notice (ECF 22-1) (relying upon Gov.s
2

http://www.journalnow.com/news/local/state-toxicologist-claim-that-nc-well-waterwas-safe-was/article_72a251a7-58e5-5b9b-bbdf-888a46a43d3a.html.
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Executive Order and DEQ letters). In its October 2015 Order, this Court held that it was
unable to find that DENR was trying diligently or that its state enforcement action was
calculated, in good faith, to require compliance with the Act. Yadkin Riverkeeper, Inc.
v. Duke Energy Carolinas, LLC, 141 F. Supp. 3d 428, 442 (M.D.N.C. 2015).
Based on his personal knowledge and involvement, his professional expertise as a
toxicologist, and his 27 years of work in toxicology with the North Carolina government,
Dr. Rudos testimony calls the activities of the State and its environmental agency into
serious question and thus undercuts Dukes principal arguments before this Court.
Dr. Rudo testifies about the direct intervention in 2015 of the Governor and his
communications director neither of whom are public health experts or toxicologists in
seeking to frame the notices to North Carolinas well owners who live around Dukes
coal ash storage sites concerning their health risk from consuming water containing
hexavalent chromium, a known mutagenic human carcinogen. Ex. G (Rudo Tr.) at 3452, 58-62; Ex. I (Do Not Drink letter). Dr. Rudo also testifies concerning the efforts of
DEQ to include in the health advisories language that Dr. Rudo determined to be both
misleading and dishonest. Ex. G at 51.
Dr. Rudo explains that DEQ wanted to include in the DHHS well owner health
advisories the statement that the water satisfied the federal Safe Drinking Water Act
immediately after telling well owners not to drink their water because of the levels of
hexavalent chromium in it. Id. at 35-36, 58-59. Dr. Rudo objected because in fact there
is no federal standard under the Safe Drinking Water Act for hexavalent chromium and,
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thus, there is no federal Safe Drinking Water Act hexavalent chromium standard for the
well water to violate. Dr. Rudo testifies that this sentence misleadingly contradicted the
warning in the health advisory not to drink this water. Id. at 58-59.
Based on his training and his professional experience of more than a quarter
century as a public health toxicologist, Dr. Rudo concluded that the Safe Drinking Water
Act sentence is an absolutely scientifically untrue human health statement and that
from a moral and ethical standpoint he could not allow his name to be attached to a
health advisory form containing the statement. Id. at 82-84, 128. After much discussion
and insistence by DEQ to include the sentence, DEQ and DHHS agreed that the health
advisory would not include that sentence in the main text. Id. at 35-41, 79-83.
Dr. Rudo prepared health advisories, to be mailed by DEQ with a DEQ cover
letter. After he delivered the advisories to DEQ for mailing, he was summoned to a
meeting with the Governor for the first time in his 27-year career. Id. at 41-42. After
the Governor (who was connected to the meeting by phone) expressed concerns about
language in the notices, the Governors communications director asked about including
language to play down the risk and also about including the Safe Drinking Water Act
sentence. Id. at 97-98. Dr. Rudo explained to the Governors press secretary, based on
Dr. Rudos 27-year career as State toxicologist, that we could not ethically do this and
that including the sentence would not be true and correct, and it would be misleading.
Id. at 98. Dr. Rudo then went on vacation, only to discover on his return that the notices
had been sent with the objectionable sentence in the DHHS forms. Id. at 45-51.
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Dr. Rudo also details his personal involvement in preparing the health advisory
level for hexavalent chromium (0.07 parts per billion or ppb) and explains the basis for
warning well users not to drink their water. Id. at 63-67, 75-78, 181-82. This testimony
is based on his direct participation, knowledge, and expertise.
Dr. Rudo also testifies that subsequently in 2016, a new DHHS political appointee,
Dr. Randall Williams, decided to issue a new letter telling the well owners that it was safe
to drink their water, the so-called Do Drink letter. Id. at 102-03. The letter was mailed
under the signatures of both Dr. Williams for DHHS and a DEQ Assistant Secretary. Ex.
J (Do Drink letter). Based on his years of training and experience, Dr. Rudo explains
that issuing this letter was contrary to the mission of the Department to protect the public
health, that it was not based on science, and that it was highly unethical and not right.
Ex. G (Rudo Tr.) at 110-12. Dr. Rudo testifies that nothing had changed since the 2015
Do Not Drink letter: The contamination and the health screening risk level were
unchanged. Id. at 103. Dr. Rudo testifies that this is the only time in his career spanning
more than one-quarter century that the Department had withdrawn a Do Not Drink
advisory when there had not been a change in circumstance. Id. at 102-03.
Although the admissibility of Dr. Rudos testimony is not properly before the
Court, none of this testimony is hearsay anyway. All of it is based on Dr. Rudos
professional training and experience and his personal involvement concerning the
contamination in wells near Dukes coal ash sites. And all these matters bear directly on
the good faith, credibility, and motivation of the state government and DEQ in particular
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on whose decisions Duke is relying in this action.


III.

Dr. Rudos testimony bears directly on public health, the environment,


operations of state agencies, and the actions of state government dealing
with public health, the environment, and public safety.
The people who live around Dukes ash pits have been given conflicting

information by North Carolinas government. They have been told not to drink their
water because of the risk of contracting cancer. That warning stayed in effect for one
year. Then, without any change in contamination or risk, the same state agencies told
these citizens to drink their water.
We have already seen how providing deposition testimony to the public and the
press can change the behavior of the state government. In his deposition, Dr. Williams
testified that a reporter called him to question the Do Drink letters. The reporter
pointed out that North Carolina had a pre-existing groundwater standard for total
chromium, 10 ppb. Ex. E (Williams Tr.) at 174-77. This is not a standard specific to
hexavalent chromium, because chromium that is not hexavalent is not a carcinogen.
Instead, this is a standard for total chromium created before the carcinogenic qualities of
hexavalent chromium were recognized. Yet the Do Drink letters had been sent even to
well owners who had hexavalent chromium levels exceeding 10 ppb.
The reporter asked why Dr. Williams had not warned well users with more than 10
ppb not to drink their water, since the State had a groundwater limit at that amount even
for total chromium, when chromium itself is not carcinogenic. In response, Dr. Williams
announced at his deposition that he had reversed the Do Drink letter for well users with
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more than 10 ppb and testified that, while he was being deposed, DHHS was notifying
well users with chromium above 10 ppb not to drink their water.
After Dr. Williams transcript was made available, one press outlet checked with
well owners and reported that well users with water containing chromium of more than
10 ppb had not yet been notified not to drink their water. Tyler Dukes, State Will Again
Reverse Water Advisories for Some Well Users, WRAL (May 31, 2016).3 After that
press report, DHHS finally reversed itself a second time and told these families not to
drink their water. Tyler Dukes, Health Officials Tell Some Well Owners Again Water is
Unsafe, WRAL (June 2, 2016).4
This sequence shows beyond any doubt that providing testimony of these state
officials to the press has a direct effect on protecting public health and the conduct of
state officials. In government, sunshine is the best disinfectant. Dr. Williams is still
persisting in telling well users with hexavalent chromium above the States health
screening level of 0.07 but at or below 10 ppb that it is safe to drink their water, even
though Dr. Rudo State toxicologist strongly disagrees. The release of Dr. Williams
testimony caused the state government to reverse itself a second time for well users with
extraordinarily high levels of a carcinogen in their drinking water. Public knowledge of
Dr. Rudos testimony is likewise important to the protection of public health.
Further, as set out in the attached affidavits, local residents with contaminated
3

http://www.wral.com/state-will-again-reverse-water-advisories-for-some-wellusers/15732757/.
4
http://www.wral.com/health-officials-tell-some-well-owners-water-isunsafe/15747343/.
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wells urgently want access to Dr. Rudos testimony. Ex. K (residents affidavits). They
do not trust state government, given how the State has handled the coal ash issue and
their well water issue in particular. As they say, they have been whipsawed first told
not to drink their water, then told to drink their water, then some of those same families
told again not to drink their water. Dr. Rudo is one of the few government officials they
trust, and they want to read his testimony. As North Carolina citizens, and as human
beings whose health, families, and communities are at stake, they deserve no less.
Also, North Carolinas press essential to the operation of the First Amendment
should have access to the testimony of a state official concerning a topic of great public
concern and involving high-level state officials. Attached is an editorial from one of
North Carolinas daily papers saying exactly that. Ex. L (Fayetteville Observer editorial).
Public health, drinking water contamination, and the operation of state government
are topics of utmost public concern. Duke should not be allowed to manipulate the
litigation process to block North Carolinas citizenry from access to this information.
IV.

Duke and its counsel cannot prevent the public from seeing testimony
critical to public health, public safety, drinking water, and the operations
of government.

To stop the public from obtaining this important public record and testimony of a
public official concerning his official duties, Duke and its counsel have raised the specter
of an ethics violation by counsel for Conservation Groups if this transcript is released
upon request for the public and press to read and analyze for themselves. This is an
abuse of the North Carolina Rules of Professional Conduct to prevent the public from
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obtaining important information.


Duke bases this charge on supposed prejudice to its right to jury trial. First, it is
important to note that Duke did not demand a jury trial. Only the Conservation Groups
did.
As the Court can see from what is set out above, much of Dr. Rudos testimony
makes no mention of Duke. There is no prejudice to Duke from the release of this
testimony, and Duke has shown none. Duke cannot protest that its claimed right to jury
trial is harmed by testimony concerning the conduct of high government officials, the
setting of the States health screening level for hexavalent chromium (which remains
unchanged today), and the professional evaluation of the States toxicologist concerning
actions taken by the State concerning the health, safety, and drinking water of its citizens.
Second, it is not clear that there will be a jury trial in this case. The issues of
remedy and penalties are not for the jury. Tull v. United States, 481 U.S. 412, 425-27
(1987). As to liability, the State has already concluded that Duke is illegally polluting
surface water and groundwater at Buck. Much of the evidence is undisputed coal ash is
in the groundwater; the groundwater is contaminated; and there are unpermitted
discharges. Much of this evidence is contained in Dukes own reports. Although the
N.C. Coal Ash Management Act was subsequently amended to provide loopholes for
Duke, 2016 N.C. Sess. L. 95, DEQs May 2016 risk ratings of coal ash sites under the
Act concluded that the law, the facts, and science required the Buck site to be excavated.

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To the extent there is a jury issue, the Court has many tools at its disposal to
ensure a proper jury, including voir dire. Even in criminal cases involving extensive
local publicity, the Fourth Circuit has held that voir dire of jurors can protect the right to
a fair trial. E.g., Wansley v. Slayton, 487 F.2d 90, 920-93 (4th Cir. 1973).
Moreover, Duke itself has tried to publicly misrepresent this issue. Dukes
website in substance repeats what Dr. Rudo determined to be misleading and unethical:
It is important to note that nearly all the private wells sampled meet the federal safety
standards for public drinking water. Duke Energy, Frequently Asked Questions:
Private Well Testing Results (May 2015).5 Duke has told the public that there is no
serious contamination in the drinking water wells. NC Reverses Warning on Well Water
Near Ash Dumps, Winston-Salem Journal, Mar. 17, 2016 ([Duke] Spokeswoman Paige
Sheehan wrote in an email that the evidence demonstrates that the water is safe).6
Duke has gone so far as to praise the state government for issuing the Do Drink
letter an action that Dr. Rudo, State toxicologist, has said is misleading:
We hope this is welcomed news to well owners, but its terribly
unfortunate the state took almost a year to give them certainty that their
water is safe to drink, [Duke Energy] spokeswoman Paige Sheehan said.
Bruce Henderson, NC Lifts Warnings Against Drinking Well Water Near Duke Energy
Ash Ponds, Charlotte Observer, Mar. 8, 2016.7

https://www.duke-energy.com/pdfs/DE_FAQ_One-pager-Privatewells.pdf.
http://www.journalnow.com/news/local/nc-reverses-warning-on-well-water-near-ashdumps/article_7c939ff9-8ec5-54bc-8f97-d37ff2337ce2.html.
7
http://www.charlotteobserver.com/news/local/article64759982.html.
6

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Most recently, Duke has labeled Dr. Rudos professional evaluation of the States
misleading statements water cooler discussion trying to minimize public concern and
ignoring Dr. Rudos longstanding expertise. Bertrand Gutierrez, State Toxicologist:
Claim that NC Well Water Was Safe Was Scientifically Untrue, Winston-Salem
Journal, July 31, 2016.8
Duke hopes to broadcast its misstatements and political spin to the public without
contradiction by the sworn testimony of a nonpolitical, long-serving State toxicologist.
Counsel would not violate the Rules of Professional Conduct by releasing upon
request a public officials testimony regarding his duties bearing directly on public safety
and health, drinking water, and the conduct of state government. Dr. Rudos testimony
speaks for itself. Indeed, it would be irresponsible to deny this information to the public
as Duke seeks. Dr. Rudos testimony may have public impact because of its content
but that is reason to make this public record available, not a reason to withhold it.
Comment 1 to Rule 3.6 of the Rules of Professional Conduct explains:
The public has a right to know about threats to its safety and
measures aimed at assuring its security. It also has a legitimate
interest in the conduct of judicial proceedings, particularly in matters
of general public concern. Furthermore, the subject matter of legal
proceedings is often of direct significance in debate and deliberation
over questions of public policy.

http://www.journalnow.com/news/local/state-toxicologist-claim-that-nc-well-waterwas-safe-was/article_72a251a7-58e5-5b9b-bbdf-888a46a43d3a.html.

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Rule 3.6 makes it clear that there is no bar to the release of the transcript. Rule 3.6
deals with Trial Publicity. First, the rule addresses only an extrajudicial statement by
counsel. Rule 3.6(a). Making available the testimony by a public official, given on the
record and under oath, is not an extrajudicial statement by a lawyer. On its face in its
first sentence, the rule does not apply to or restrict the release of this transcript.
Second, the rule deals with only lawyers extrajudicial statements that will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
Id. There is no prejudice from the release of this transcript, Duke has shown none. The
transcript is a public record containing the testimony of a public official. There is no
reason that its release will materially prejudice an adjudicative proceeding. Instead, the
public availability of this officials testimony will set the record straight and promote
more informed public discourse, and a fairer consideration of these issues in any forum.
Third, the Rule makes clear that a lawyer may state the information contained in
a public record. Rule 3.6(b)(2). As set out above, this transcript is a public record.
Fourth, a lawyer may make a statement that a reasonable lawyer would believe is
required to protect a client from the substantial undue prejudicial effect of recent
publicity not initiated by the lawyer or the lawyers client. Rule 3.6(c). Duke and the
state governments notices have repeatedly said that the drinking water wells near Dukes
ash lagoons satisfy the federal Safe Drinking Water Act and have praised the Do Drink
letters, perpetuating the misleading impression that Dr. Rudo identifies. The leadership
of North Carolina agencies continue to make those claims. E.g., Nick Ochsner,
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Neighbors, Watchdogs Question States Decision on Water Safety, WBTV (Apr. 7, 2016)
(It complies with the federal Safe Drinking Water Act DEQ Assistant Secretary)9;
Bruce Henderson, Bad Idea to Revoke Water Advisories Near Duke Energy Plants,
Health Official Says, Charlotte Observer, May 13, 2016 (The water in these wells meets
the standards of the Safe Drinking Water Act DHHS communications director).10
The plaintiffs here, and the plaintiff-intervenors in the state enforcement suits, are
community organizations that fight for clean water and to protect communities and
families from unsafe water supplies. They have members who drink well water or who
own property with wells. Dukes misleading statements and those of state government
minimize water contamination and risks to those who drink the water. These misleading
statements must be corrected by the sworn testimony of N.C.s long-serving toxicologist.
Finally, Duke seeks to delay the release because the deposition may be continued.
The deposition was noticed by conservation groups in the state actions; Duke did not
notice Dr. Rudos deposition and showed no interest in obtaining his testimony. Dr.
Rudo told counsel that he had to leave at 5 p.m.; the Conservation Groups counsel ended
questioning so that other counsel had one and a half hours for questions. Instead of
beginning his questioning, Dukes counsel invited DEQ to go first. Ex. G (Rudo Tr.) at
161. Then, Duke interrogated Dr. Rudo for a full hour, for 40 pages of testimony. If
Duke had any revealing questions to ask, Duke had every opportunity to pose them.
9

http://www.wbtv.com/story/31670893/neighbors-watchdogs-question-states-decisionon-water-safety.
10
http://www.charlotteobserver.com/news/local/article77442267.html.
18

Case 1:14-cv-00753-LCB-JEP Document 81 Filed 08/02/16 Page 18 of 21

When the full transcript of Dr. Rudos July 11 testimony is released, Dukes
interrogation will be included. Presumably Dukes counsel made a point of asking his
most important questions early on, since he had every reason to expect the release of Dr.
Rudos testimony. If this deposition is reconvened, that transcript can be released, too.
It should be noted that Dukes counsel held Dr. Daviess deposition open for
document review, Ex. A (Davies Tr.) at160, and held Dr. Williams deposition open by
claiming that Duke did not have enough time to question him, Ex. E (Williams Tr.) at
266. Yet, Duke did not try to block the release of the transcripts, and Duke has not taken
steps to have the depositions reconvened. In both instances, the transcripts were released.
Every day North Carolinians living near Dukes coal ash sites are deciding
whether to drink their well water and whether to allow their children to drink it. They
were told by the State in 2015 that they should not drink their well water, they were told
by the State that their well water met the standards of the federal Safe Drinking Water
Act (even though there is no federal standard for hexavalent chromium), they were told in
2016 that it was safe to drink their water (even though nothing had changed), and some of
them were told later in 2016 not to drink their water (after the release of transcripts).
These families should not wait any longer for more complete information
concerning the contamination of their water and the way their government has handled
these issues. The affidavits from community residents confirm the urgency of their need
to see the State toxicologists sworn testimony. Ex. K.

19

Case 1:14-cv-00753-LCB-JEP Document 81 Filed 08/02/16 Page 19 of 21

V.

The Transcript Contains More Information that the Public Should Know.

Dr. Rudos transcript is a public record that contains other information about
Duke, the conduct of state government as to other matters, and information conveyed to
Dr. Rudo by his colleagues in state government. There is no order, Rule of Civil
Procedure, or law that prevents the public and press from reading the entire transcript.
For these reasons, Dukes motion should be denied.
This the 2nd day of August, 2016.
/s/ Frank S. Holleman III
Frank S. Holleman, III
N.C. Bar No. 43361
fholleman@selcnc.org
John Suttles
N.C. Bar No. 34393
jsuttles@selcnc.org
Nicholas S. Torrey
N.C. Bar No. 43382
ntorrey@selcnc.org
Myra Blake
N.C. Bar No. 43752
mblake@selcnc.org
Leslie Griffith
N.C. Bar No. 50122
lgriffith@selcnc.org
Southern Environmental Law Center
601 West Rosemary Street, Suite 220
Chapel Hill, NC 27516-2356
Telephone: (919) 967-1450
Facsimile: (919) 929-9421
Attorneys for Yadkin Riverkeeper, Inc. and
Waterkeeper Alliance, Inc.

20

Case 1:14-cv-00753-LCB-JEP Document 81 Filed 08/02/16 Page 20 of 21

CERTIFICATE OF SERVICE
I hereby certify that on this 2nd day of August, 2016, I electronically filed the
foregoing PLAINTIFFS BRIEF IN OPPOSITION TO DEFENDANTS MOTION FOR
PROTECTIVE ORDER with the Clerk of Court using the CM/ECF System, which will
send notification of such filing to the users registered on the Courts CM/ECF System.

/s/ Frank S. Holleman, III


Frank S. Holleman, III

21

Case 1:14-cv-00753-LCB-JEP Document 81 Filed 08/02/16 Page 21 of 21

IN THE UNITED STATES DISTRICT COURT


FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CIVIL ACTION NO: 1:14-cv-00753
YADKIN RIVERKEEPER, INC., AND
WATERKEEPER ALLIANCE, INC.,

)
)
)
Plaintiffs,
)
)
v.
)
)
DUKE ENERGY CAROLINAS, LLC,
)
)
Defendant.
)
___________________________________ )
INDEX OF EXHIBITS TO PLAINTIFFS BRIEF IN OPPOSITION TO
DEFENDANTS MOTION FOR PROTECTIVE ORDER REGARDING SWORN
TESTIMONY OF DR. KENNETH RUDO
A

Transcript of deposition of Dr. Megan Davies

Email exchange between counsel for Conservation Groups and Duke Energy
regarding Rudo transcript

Email exchange between counsel for Conservation Groups and DEQ regarding
Rudo transcript

Transcript of deposition of Dr. Mina Shehee

Transcript of deposition of Dr. Randall Williams

Email exchanges between counsel for Conservation Groups, Duke Energy,


DHHS, and DEQ regarding deposition transcripts

Excerpts of transcript of deposition of Dr. Kenneth Rudo

Initial Case Management Order, N.C. ex rel. NCDENR & Yadkin Riverkeeper,
Waterkeeper Alliance et al. v. Duke Energy Carolinas et al., Civil Action Nos.
13-CVS-14661, 13-CVS-11032 (N.C. Sup. Ct.) (filed Sept. 17, 2014)

Case 1:14-cv-00753-LCB-JEP Document 81-1 Filed 08/02/16 Page 1 of 2

Letter from DENR to Marcos Albarran & Nora R. Gutierrez (June 4, 2015)

Standard letter from Dr. Randall Williams, DHHS, & Tom Reeder, DEQ, to well
owners (Mar. 11, 2016)

Declarations of Deborah Graham and Amy Brown

Our View: Dont Seal Records in Suits Against Duke Energy, Fayetteville
Observer (July 21, 2016)

Case 1:14-cv-00753-LCB-JEP Document 81-1 Filed 08/02/16 Page 2 of 2

PAGE 1
_________________________________________________________
NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE


SUPERIOR COURT DIVISION
13-CVS-11032
____________________________________________________
STATE OF NORTH CAROLINA ex rel.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES,

)
)
)
)
Plaintiff,
)
)
V.
)DEPOSITION OF MEGAN
) MARIA DAVIES, M.D.
SIERRA CLUB, WATERKEEPER ALLIANCE, )
NEUSE RIVERKEEPER FOUNDATION,
)
WINYAH RIVERS FOUNDATION, ROANOKE
)
RIVER BASIN ASSOCIATION, and CAPE
)
FEAR RIVER WATCH, INC.,
)
)
Plaintiff-Intervenors, )
)
v.
)
)
DUKE ENERGY CAROLINAS, LLC,
)
)
Defendant.
)
_________________________________________________________
and
_________________________________________________________
NORTH CAROLINA
COUNTY OF MECKLENBURG

IN THE GENERAL COURT OF JUSTICE


SUPERIOR COURT DIVISION
13-CVS-14661
_________________________________________________________
STATE OF NORTH CAROLINA ex rel.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES,
Plaintiff,
V.
CATAWBA RIVERKEEPERS FOUNDATION,
INC., APPALACHIAN VOICES, YADKIN
RIVERKEEPER, MOUNTAINTRUE, DAN
RIVER BASIN ASSOCIATION, ROANOKE

)
)
)
)
)
)
)
)
)
)
)
)

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 1 of 186

PAGE 2
RIVER BASIN ASSOCIATION, SOUTHERN
ALLIANCE FOR CLEAN ENERGY, and
WATERKEEPER ALLIANCE,

)
)
)
)
Plaintiff-Intervenors, )
)
v.
)
)
DUKE ENERGY CAROLINAS, LLC,
)
)
Defendant.
)
_________________________________________________________
WEDNESDAY, MAY 4, 2016
_________________________________________________________
ROOM 148
NORTH CAROLINA DEPARTMENT OF JUSTICE
114 WEST EDENTON STREET
RALEIGH, NORTH CAROLINA
8:56 A.M.
_________________________________________________________
VOLUME 1
PAGES 1 THROUGH 184
_________________________________________________________

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 2 of 186

PAGE 3
A P P E A R A N C E S
ON BEHALF OF THE PLAINTIFF:
ROY A. COOPER, III
ATTORNEY GENERAL FOR THE STATE OF NORTH CAROLINA
BY: ANITA LeVEAUX, SPECIAL DEPUTY ATTORNEY GENERAL
ENVIRONMENTAL DIVISION
GERALD ROBBINS, SPECIAL DEPUTY ATTORNEY
GENERAL
PUBLIC SAFETY SECTION
JOHN P. BARKLEY, ASSISTANT ATTORNEY GENERAL
HEALTH AND PUBLIC ASSISTANCE SECTION
NORTH CAROLINA DEPARTMENT OF JUSTICE
POST OFFICE BOX 629
RALEIGH, NORTH CAROLINA 27602-0629
919/716-6500
DREW HARGROVE,
NORTH CAROLINA
QUALITY
217 WEST JONES
RALEIGH, NORTH
919/707-8613

ASSISTANT GENERAL COUNSEL


DEPARTMENT OF ENVIRONMENTAL
STREET
CAROLINA 27603

ON BEHALF OF THE PLAINTIFF-INTERVENORS:


FRANK S. HOLLEMAN, III, SENIOR LITIGATOR
MYRA BLAKE, STAFF ATTORNEY
NICHOLAS S. TORREY, STAFF ATTORNEY
LESLIE GRIFFITH, ASSOCIATE ATTORNEY
SOUTHERN ENVIRONMENTAL LAW CENTER
601 WEST ROSEMARY STREET, SUITE 220
CHAPEL HILL, NORTH CAROLINA 27516-2356
919/967-1450
ON BEHALF OF THE DEFENDANT DUKE ENERGY:
BRENT A. ROSSER, ESQUIRE
HUNTON & WILLIAMS, LLP
BANK OF AMERICA PLAZA
101 TRYON STREET, SUITE 3500
CHARLOTTE, NORTH CAROLINA 28280
704/378-4700

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 3 of 186

PAGE 4
A P P E A R A N C E S
(CONTINUED)
LAUREN LLAMAS
SENIOR COUNSEL, OFFICE OF THE GENERAL COUNSEL
DUKE ENERGY
DEC45A
550 SOUTH TRYON STREET
CHARLOTTE, NORTH CAROLINA 28202
980/373-3698
COURT REPORTER:
MICHAEL B. CARTER
PRECISION REPORTING & TRANSCRIBING, INC.
POST OFFICE BOX 1659
SPRING HOPE, NORTH CAROLINA 27882
252/478-6968
FAX: 252/478-6984
CELL: 919/215-3501

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 4 of 186

PAGE 5
T A B L E

O F

WITNESS

C O N T E N T S
DIRECT REDIRECT

MEGAN MARIA DAVIES, M.D.


BY MR. HOLLEMAN
BY MR. ROSSER

8-84

161-184

84-161

EXHIBITS
NUMBER

DESCRIPTION

PAGE

PLAINTIFF-INTERVENORS
283

CITY OF RALEIGH 2014 CONSUMER CONFIDENCE


REPORT ANNUAL DRINKING WATER REPORT

76

284

JUNE 29, 2015 LETTER TO B75 FROM NCDENR


RE: RESULTS OF WATER SUPPLY WELL
SAMPLING AND HEALTH RISK EVALUATION
2520 LONG FERRY ROAD SALISBURY, NC

80

285

JUNE 4, 2015 LETTER TO B39 FROM NCDENR


RE: RESULTS OF WATER SUPPLY WELL
SAMPLING AND HEALTH RISK EVALUATION
470 LEONARD ROAD SALISBURY, NC

80

286

RISK EXPLANATION FREQUENTLY ASKED


QUESTIONS (5 PAGES)

85

287

E-MAIL CHAIN DATED 7/28 15 FROM KELLY


RIDDELL TO JIM JONES AND OLIVIA JAMES
RE: URGENT MEDIA REQUEST (5 PAGES)

96

288

NCDEQ MEMORANDUM DATED NOVEMBER 4, 2015


101
FROM MATTHEW DOCKHAM, DIRECTOR OF
LEGISLATIVE AFFAIRS TO THE ENVIRONMENTAL
REVIEW COMMISSION AND THE JOINT
LEGISLATIVE OVERSIGHT COMMITTEE ON HEALTH
AND HUMAN SERVICES RE: INTERIM REPORT ON
THE STUDY OF STANDARDS AND HEALTH SCREENING
LEVELS FOR hexavalent CHROMIUM AND VANADIUM

289

EPA OFFICE OF WATER DOCUMENT DATED


DECEMBER 2010 CHROMIUM-6 IN DRINKING
WATER (3 PAGES)

DEFENDANT

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 5 of 186

104

PAGE 6
EXHIBITS (CONTD)
DEFENDANT
NUMBER

DESCRIPTION

PAGE

290

E-MAIL CHAIN DATED FEBRUARY 16, 2015


FROM MINA SHEHEE TO MEGAN DAVIES
RE: FWD: CHROMIUM VI (2 PAGES)

291

NCDEQ MEMORANDUM DATED APRIL 1, 2016


112
FROM MOLLIE YOUNG, DIRECTOR OF
LEGISLATIVE AFFAIRS TO THE ENVIRONMENTAL
REVIEW COMMISSION AND THE JOINT
LEGISLATIVE OVERSIGHT COMMITTEE ON HEALTH
AND HUMAN SERVICES RE: FINAL REPORT ON
THE STUDY OF STANDARDS AND HEALTH SCREENING
LEVELS FOR HEXAVALENT CHROMIUM AND VANADIUM

292

NCDENR LETTER DATED 1/16/14 FROM DEXTER


MATTHEWS TO MEGAN DAVIES RE: MEETING
BETWEEN DHHS AND DENR AGREEING ON
CONSISTENT STANDARDS AND CALCULATIONS FOR
PRIVATE WELL OWNER HRE'S (2 PAGES)

114

293

ENVIRONMENTAL WORKING GROUP REPORT


CHROMIUM-6 IN U.S. TAP WATER

122

294

WINSTON SALEM JOURNAL ARTICLE 3/19/16


WELL OWNERS IN DISBELIEF ABOUT STATE'S
DECISION TO LIFT TAINTED WATER WARNING.
(6 PAGES)

145

295

E-MAIL CHAIN DATED 8/21/15 FROM MINA


SHEHEE TO MEGAN DAVIES RE: HEALTH STUDY
(5 PAGES)

147

296

REPORT OF CANCER INCIDENCE RATES IN


NORTH CAROLINA COUNTIES WITH COAL ASH
STORAGE FACILITIES PREPARED BY THE NORTH
CAROLINA CENTRAL CANCER REGISTRY DATED
AUGUST 27, 2015 (6 PAGES)

155

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 6 of 186

107

PAGE 7
S T I P U L A T I O N S
PRIOR TO EXAMINATION OF THE WITNESS, COUNSEL
FOR THE PARTIES STIPULATED AND AGREED AS
FOLLOWS:
1.

OBJECTIONS TO QUESTIONS AND MOTIONS TO STRIKE

ANSWERS NEED NOT BE MADE DURING THE TAKING OF THIS


DEPOSITION, BUT MAY BE MADE FOR THE FIRST TIME DURING THE
PROGRESS OF THE TRIAL OF THIS CASE OR ANY PRE-TRIAL
HEARING HELD BEFORE THE JUDGE FOR THE PURPOSE OF RULING
THEREON OR AT ANY OTHER HEARING OF SAID CASE AT WHICH
SAID DEPOSITION MIGHT BE USED, EXCEPT AN OBJECTION AS TO
THE FORM OF A QUESTION MUST BE MADE AT THE TIME SUCH
QUESTION IS ASKED OR OBJECTION IS WAIVED AS TO THE FORM
OF THE QUESTION;
2.

THAT THE WITNESS DOES NOT WAIVE READING AND

SIGNING OF THE TRANSCRIPT.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 7 of 186

MEGAN MARIA DAVIES, M.D.


1

5/4/16

PAGE 8

P R O C E E D I N G S

(WHEREUPON,

MEGAN MARIA DAVIES, M.D.

WAS CALLED AS A WITNESS, DULY SWORN, AND TESTIFIED AS

FOLLOWS:)

D I R E C T

BY MR. HOLLEMAN:

8
9

Q.

E X A M I N A T I O N

8:56 A.M.

Dr. Davies, we met a few minutes ago.

My name

is Frank Holleman, I am an attorney with the Southern

10

Environmental Law Center.

And we represent conservation

11

groups who have intervened in this State Enforcement

12

Action, where we are seeking the clean up of coal ash

13

pollution around North Carolina.

14

deposition before?

Have you ever been in a

15

A.

I have not.

16

Q.

I am sure you have been told this by your

17

attorneys, but just for the record, I am going to be

18

asking you a series of questions.

19

understand me or if you can't hear me, or if I get

20

confused, let me know and I will try to clarify the

21

question.

22

And if you don't

Also, when you are answering questions from

23

me, you need to say "yes" or "no" for the court reporter,

24

because he gets frustrated by head shaking.

25

other thing I wanted to make sure you are aware of, we

And the

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 8 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 9

are of course in a conference room here in a government

building in a -- perhaps a less formal setting.

testimony you are giving today is under oath.

as though you were in an official courtroom; do you

understand that?

A.

I do understand that.

Q.

Great.

But the
And it is

Well, first, could you state your full

name for the record?

A.

Megan Maria Davies.

10

Q.

And Dr. Davies, I understand you are an

11

official of the North Carolina Department of Health and

12

Human Services, is that correct?

13

A.

Yes.

14

Q.

And what is your position?

15

A.

I am the State Epidemiologist and Epidemiology

16

Section Chief.

17

Q.

18

And are you in a department or some

sub-portion of HHS?

19

A.

Yes.

20

Q.

And what is that?

21

A.

The Division of Public Health.

22

Q.

And to whom do you report?

23

A.

I report to Danny Staley, the Division

24
25

Director.
Q.

And is that a man or a woman?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 9 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 10

A.

Man.

Q.

And to whom does he report?

A.

He reports to Dr. Randall Williams.

Q.

And what is Dr. Randall Williams position?

A.

He is the Health Director and the Deputy

Secretary for Health.

MR. ROSER:

speak up just a little bit.

here.

I am sorry.

One second.

I can barely hear you over

10

THE WITNESS:

All right, sorry.

11

MR. ROSSER:

Thank you.

12

BY MR. HOLLEMAN:

13

Q.

And sometimes I drop my voice, too ---

14

A.

(Interposing) That is all right.

15
16
17

Just

I will

try --Q.

--- so if it is a problem from me, you just

let me know.

18

A.

--- little more.

19

Q.

And who reports to you, Dr. Davies?

20

A.

Matt Kimmer, Evelyn Faust, Mina Shehee, Julie

21
22

My voice is ---

Cassani and Brenda Horne.


Q.

Now, we are here today, among other things, to

23

ask you questions concerning the Health Screening Levels

24

for hexavalent chromium and vanadium.

25

aware of that, correct?

I guess you are

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 10 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 11

A.

Yes.

Q.

Which of those people you just identified

played any role in setting the Health Screening Levels

for those two substances?

A.

Mina Shehee.

Q.

And the others did not?

A.

No.

Q.

Now, as I understand it, is it correct that

your agency has set a Health Screening Level for

10

hexavalent chromium in drinking water of 0.07 parts per

11

billion?

12

A.

Yes.

13

Q.

I believe -- and correct me if this is wrong,

14

but I believe that is based on a statutory criteria of a

15

one in a million cancer risk, is that correct?

16

MS. LeVEAUX:

Objection.

17

MR. ROSSER:

Object to form.

18

MR. ROBBINS:

Objection.

19

MR. BARKLEY:

Objection.

20

THE WITNESS:

No, I was just trying to

21

think.

22
23

You can answer.

BY MR. HOLLEMAN:
Q.

Well, tell me what criteria is that based on?

24

What does that represent, 0.07 parts per billion of

25

hexavalent chromium.

What does that represent?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 11 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 12

A.

That criterion is an Administrative Code.

Q.

Yes, and what kind of criterion is that?

mean, what is the substance of the criterion and what

does it mean?

5
6
7

A.

It is a one in one million risk of --

increased risk of cancer.


Q.

Now, if it is -- if you have -- instead of .07

parts per billion of hexavalent chromium in your water,

you have 0.7, that is ten times as much hexavalent

10

chromium; is that correct?

11

MS. LeVEAUX:

Objection.

12

MR. ROBBINS:

Objection.

13

THE WITNESS:

Yes.

14

BY MR. HOLLEMAN:

15

Q.

And does that mean, then, that your drinking

16

that has 0.7 parts per billion of hexavalent chromium is

17

less safe than drinking water that has the Health

18

Screening Level of 0.07.

19

MS. LeVEAUX:

Objection.

20

MR. ROBBINS:

Objection.

21

MR. ROSSER:

Object to the form.

22

THE WITNESS:

It is associated with a risk

23

of one in a hundred thousand of cancer.

24
25

BY MR. HOLLEMAN:
Q.

So it would be riskier -- drinking the water

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 12 of 186

MEGAN MARIA DAVIES, M.D.


1

5/4/16

PAGE 13

would be riskier if it has 0.7?

MS. LeVEAUX:

Objection.

MR. ROSSER:

Objection to form.

THE WITNESS:

It is associated with a higher

risk.

BY MR. HOLLEMAN:

Q.

Of cancer?

A.

Of cancer.

Q.

And what kind of cancers are we talking about

10

here for hexavalent chromium?

11

A.

Stomach tumors for ingestion.

12

Q.

What about liver cancer; is that one of the

13

issues for hexavalent chromium?

14

A.

Not to my knowledge.

15

Q.

It is not?

16

A.

Not to my knowledge.

17

Q.

And you said stomach tumors.

18

I mean, not to your knowledge?

Is that

sometimes referred to as stomach cancer?

19

A.

Yes.

20

Q.

And I believe you have been a practicing

21

physician, is that right?

22

A.

Yes.

23

Q.

What symptoms does someone have who has

24

stomach cancer?

25

A.

I have never diagnosed someone with stomach

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 13 of 186

MEGAN MARIA DAVIES, M.D.


1

5/4/16

PAGE 14

cancer, and I -- I would be speculating on the symptoms.

Q.

Did you study that in medical school at all?

A.

Yes.

Q.

Okay.

From your studies in medical school,

what are the symptoms of someone who has stomach cancer?

A.

I guess what I am trying to say is I don't

remember everything I studied in medical school, and I

don't know for sure what the symptoms of stomach cancer

are.

10

Q.

Are you telling me you don't remember that?

11

mean, you don't have to know with absolute certainty, as

12

though you read it this morning.

13

based on your general medical knowledge what are the

14

symptoms of stomach cancer?

15

A.

I am just asking you

So, I guess the problem I am having in

16

answering this is just -- I -- I could tell you what I

17

think they are.

18

symptoms of stomach cancer specifically.

19

I am a little uncomfortable when I am giving official

20

testimony about what the symptoms of a disease are when I

21

am not certain.

22

Q.

Can you tell me what you think they are?

23

A.

Yes.

24

Q.

Okay.

25

A.

I think they would be weight loss, abdominal

I don't remember ever reviewing the


So as a doctor,

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 14 of 186

MEGAN MARIA DAVIES, M.D.


1

5/4/16

PAGE 15

pain, possibly blood in the stool, fatigue.

Q.

Would nausea be a symptom?

A.

It could be.

Q.

And do people normally survive stomach cancer?

MR. ROSSER:

Object to the form.

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

I don't know.

BY MR. HOLLEMAN:

10

Q.

And what is the treatment for stomach cancer?

11

A.

I don't know.

12

Q.

Did you ever have a patient with liver cancer?

13

A.

I don't think so.

14

Q.

Do you know the symptoms of liver cancer?

15

A.

I know some of them.

16

Q.

And what are they?

17

A.

Abdominal pain.

They can also have loss of

18

appetite, nausea.

19

with bleeding disorders and liver malfunction.

20
21

Q.

As it advances, you can have problems

And what are the consequences of liver

malfunction?

22

A.

So severe liver malfunction results in hepatic

23

encephalopathy.

24

that the liver cannot transform for you to excrete

25

anymore.

The brain is affected by the chemicals

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 15 of 186

MEGAN MARIA DAVIES, M.D.


1
2

Q.

5/4/16

PAGE 16

So you can have a build up of ammonia that

causes your brain to be confused?

A.

Yes.

Q.

And do people normally survive liver cancer?

A.

I don't know the statistic on liver cancer

6
7

survival, but it has a -- generally has a poor prognosis.


Q.

Now, you all sent out "do not drink" letters

to people around some of the coal ash sites because of

the level of hexavalent chromium in their drinking water

10

wells, is that correct?

11

A.

No.

12

Q.

How is that not correct?

13

A.

We didn't send them out on the -- all of the

14
15

materials were sent by DEQ.


Q.

But you were aware that DEQ was sending out

16

"do not drink" letters to people who lived around coal

17

ash sites because of the levels of hexavalent chromium in

18

their well drinking water?

19

MS. LeVEAUX:

Objection.

20

MR. ROSSER:

Object to the form.

21

BY MR. HOLLEMAN:

22

Q.

Is that correct?

23

MR. ROSSER:

Objection.

24

MS. LeVEAUX:

Objection.

25

THE WITNESS:

I was aware that DEQ was

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 16 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 17

sending out an HRE -- Health Risk Evaluation -- form that

had a recommendation not to use water for drinking or

cooking based on a level above 0.7 -- sorry, 0.07.

Q.

Do you remember when that was sent out?

A.

I think they started being sent out in March

of 2015.

Q.

Of 2015?

Now, later, your Department and DEQ

sent a letter to well owners who had received the "do not

drink" advisories rescinding the "do not drink" advisory

10

and telling them it was safe to drink their water, is

11

that correct?

12

A.

Yes.

13

Q.

And when did that go out?

14

A.

I think it was October of 2016.

15

No, wait, what year are we in, 2016?

16

Q.

We are in 2016.

17

A.

Okay.

18
19
20
21
22

I mean, 2015.

Sorry, October 2016 [sic].

Maybe

September.
Q.

Let me show you what has previously been

marked Exhibit 276.


MR. ROSSER:

Frank, do you have copies of

that -- 276?

23

MR. HOLLEMAN:

That is a past exhibit.

24

MR. ROSSER:

So did you all bring extra

25

copies of the past exhibits?

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5/4/16

MR. HOLLEMAN:

I did not.

PAGE 18
This is the court

reporters exhibit.

the "do drink" letter.

MR. ROSSER:

What is the date on that?

MR. HOLLEMAN:

276 and it is ---

THE WITNESS:

March 11th, 2016.

Yes, I was

thinking of a different letter.

8
9

This is a "do not drink " -- this is

BY MR. HOLLEMAN:
Q.

So, now, just for the record, looking at 276

10

-- Exhibit 276, does that refresh your recollection that

11

the "do drink" letters went out in March of 2016?

12

A.

Yes.

13

Q.

Now, why -- let me back up for a minute.

Has

14

the 0.07 Health Screening Level for hexavalent chromium

15

changed?

16

A.

No.

17

Q.

And did you all obtain different testing

18

results for the wells of people who received the "do

19

drink" letter?

20

A.

No.

21

Q.

So why was the "do drink" letter sent, given

22

you had previously -- or DEQ had previously sent these

23

notices to well owners that they should not drink their

24

water because of their hexavalent chromium level?

25

MR. ROSSER:

Object to the form.

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PAGE 19

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

I believe it was for the

reasons stated in the letter.

BY MR. HOLLEMAN:

Q.

And what do you believe those reasons are?

A.

That they were updated after extensive study

of how other cities, states and Federal Government

managed the elements hexavalent chromium and vanadium in

10

drinking water.

11

Q.

Did you participate in those studies?

12

A.

To me, the word "studying" means a research

13

project.

14

Q.

Yes.

Well, I don't know what it means.

15

well, I know what it means in the English language.

16

letter says "extensive study."

17

that extensive study referred to in the letter?

I -The

Did you participate in

18

A.

Yes.

19

Q.

And what did you do?

20

A.

Reviewed Federal Standards and documents

21

around those, reviewed levels that other states have for

22

groundwater or drinking water.

23

what I did.

24

meetings and ---

25

Q.

And that is basically

And I was briefed by my staff on their

Did you conduct any study of how other cities

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MEGAN MARIA DAVIES, M.D.

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PAGE 20

manage hexavalent chromium and vanadium in drinking

water?

A.

No.

Q.

Which members of your staff participated in

5
6

this study?
A.

So in -- in reviewing documentation -- that

was the essence of what the study is, reviewing

documentation and practices in other settings.

Shehee, Kennedy Holt, is his last name, who is a Health

10

Risk Evaluator ---

11
12

MR. ROSSER:

I am sorry.

I am still kind

I am sorry.

Kennedy Holt --

of struggling to hear you.

13

THE WITNESS:

14

and I am just hesitating on the last name.

15

know if Ken Rudo did, also.

16

Kennedy.

17
Q.

19

in this study?

20

A.

22

And I don't

I am sure about Mina and

BY MR. HOLLEMAN:

18

21

Dr.

All right.

Did anyone else at HHS participate

I think Dr. Williams also reviewed

information.
Q.

And did anyone else outside of HHS -- anyone

23

outside of HHS participate in the study or was it only

24

done in HHS?

25

A.

It was done in discussion with DEQ.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 20 of 186

MEGAN MARIA DAVIES, M.D.


1
2

Q.

5/4/16

PAGE 21

Did DEQ do any of the study, or did you just

discuss it with them?

A.

DEQ shared their understanding of the same

documentation that we were reviewing.

And DEQ provided a

formal report to the General Assembly regarding water

standards for these constituents.

Q.

And who at DEQ did what you just described?

A.

Tom Reeder, Jay Zimmerman, Evan -- Evan Kane?

I believe he is a geologist.

10

Q.

11

know of?

12

A.

Are those all of the people at DEQ that you

Those are the people we had technical

13

discussions.

14

some of the technical discussions.

15

Q.

Secretary van der Vaart also engaged in

Anyone else in government, other than the

16

people you have listed, to your knowledge -- was anyone

17

else in government, other than the people you have

18

listed, to your knowledge, participants in the study?

19
20

A.

I am going to ask John a question, to

clarify ---

21

MR. BARKLEY:

You can't ask -- sorry.

22

THE WITNESS:

I can't ask you a question?

23

am just ---

24
25

MR. BARKLEY:

You need to ask him to clarify

it.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 21 of 186

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PAGE 22

BY MR. HOLLEMAN:

Q.

me know.

If you are not clear about the question, let

MR. BARKLEY:

You can ask him.

THE WITNESS:

I guess I keep stumbling on

what you mean by "study."

letter says, "after extensive study."

doesn't mean -- it just means after reviewing the

literature.

10

I know the language of the


To me, that

BY MR. HOLLEMAN:

11

Q.

Well, who else participated in that?

12

A.

In reviewing the literature?

13

Q.

In what you mean -- what you interpret

14
15
16
17
18

"extensive study" to mean?


A.

I think -- those are the people I know of who

participated in that.
Q.

And did anyone outside of government

participate in the study, to your knowledge?

19

A.

No.

20

Q.

Now, did you agree with the decision to send

21

out this letter?

22

A.

No.

23

Q.

Okay.

24

A.

I was concerned -- let's see.

25

And why did you not agree with it?

wasn't what I recommended.

The timing

And I felt that water in

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 22 of 186

MEGAN MARIA DAVIES, M.D.


1
2
3

5/4/16

PAGE 23

public water systems were safer.


Q.

In other words, that municipal public water

systems were safer than the well water?

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

In terms of the levels of

hexavalent chromium detectable, yes.

BY MR. HOLLEMAN:

Q.

Yes.

And who did you express that concern to?

10

A.

Dr. Williams.

11

Q.

And what was his response?

12

A.

We had multiple discussions about that there

13

isn't a clear, one way to handle this, and that in the

14

absence of regulations that all water suppliers were

15

answerable to, that making a specific recommendation to

16

this subset of people was not something he felt

17

comfortable with.

18
19

Q.

Did he give you any other reason why he wanted

to send the letter out?

20

A.

Yes.

21

Q.

What was that?

22

A.

There was -- there were reports of efforts in

23

the General Assembly to construct legislation that would

24

restrict the Division of Public Health's ability to work

25

in the area of wells, in general.

And I need to say, I

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 23 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

-- this is what was discussed in meetings around

(inaudible).

MR. ROSSER:

PAGE 24

I am sorry, Dr. Shehee [sic]

-- or Dr. Davies, I still am struggling to hear you over

here.

MS. LeVEAUX:

And I am, too.

THE WITNESS:

I am sorry, I just -- I don't

know what to do about it.

thing.

Maybe you can turn off the air

But if I have to spend several hours at the top

10

of my voice, I am not going to do well in this.

11

I said was -- can somebody else -- what I said was that I

12

was in discussions that included Dr. Williams about a

13

concern that there was an -- I don't know the right noun

14

-- effort -- there was discussion in the General Assembly

15

about passing legislation to restrict the Division of

16

Public Health's ability to work in the area of well

17

water.

18
19

So what

BY MR. HOLLEMAN:
Q.

So was Dr. Williams concerned that if you did

20

not send out a "do not drink" letter, that members of the

21

General Assembly might restrict the administrative

22

authority of the Department of Public Health?

23

MS. LeVEAUX:

Objection.

24

MR. ROBBINS:

Objection.

25

MR. ROSSER:

Objection to form.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 24 of 186

MEGAN MARIA DAVIES, M.D.


1
2

THE WITNESS:

I don't -- I don't know how

BY MR. HOLLEMAN:
Q.

Did he express that concern?

MR. ROSSER:

Same objection.

MR. ROBBINS:

Objection.

THE WITNESS:

Yes.

BY MR. HOLLEMAN:

9
10

Q.

Now, did he give any other reason why the "do

not [sic] drink" letters should go out?

11

MR. ROBBINS:

12

BY MR. HOLLEMAN:

13
14
15

PAGE 25

specific -- I can't speak to his specific concerns.

3
4

5/4/16

Q.

"Do drink."

"Do drink" letters should go out.

The "do

drink" letters, excuse me.


A.

He expressed a lot of concern about the stress

16

that the people who had received the recommendation not

17

to use water for drinking or cooking were experiencing as

18

a result, and that while there is risk in the well water,

19

there is countervailing risk in not using your well

20

water, and having to use either bottled water or some

21

other source.

22

Q.

Well, what is the countervailing risk in using

23

other water sources that don't have as much hexavalent

24

chromium in them?

25

MR. ROSSER:

Objection to form.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 25 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

BY MR. HOLLEMAN:

4
5
6

Q.

PAGE 26

What is the countervailing risk he was

referring to?
A.

In our discussions, we both were concerned

that people were experiencing a high degree of stress in

their everyday lives, that they were -- they were

changing the practices of how they ate and how they did

10

sanitation.

And those are pretty fundamental public

11

health issues.

12

Q.

Did you know that was happening?

13

A.

There were reports in the media.

14

Q.

Did you ask any of the -- did you or others in

15

your department, or Dr. Williams ask people in the

16

community who had received the letters if they had made

17

any of those kind of changes?

18
19
20

A.

I did not.

I don't know -- I can't speak to

Dr. Williams.
Q.

Now, did you express your objections to Dr.

21

Williams' decision to send out the "do drink" letter in

22

writing?

23

A.

No.

24

Q.

On e-mail?

25

A.

No.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 26 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 27

Q.

Only verbally, is that correct?

A.

Yes.

Q.

Did anyone else at HHS object to the "do

drink" letter being sent out?

A.

Yes.

Q.

Who else?

A.

Mina Shehee.

am sure.

Q.

10
11
12
13

Let me think.

Mina is the one I

Do you know if anyone else expressed

objection, other than Ms. Shehee and yourself?


A.

I don't know of anybody who expressed

objection to sending this letter besides Mina and myself.


Q.

Do you know -- was there anyone else who

14

objected to telling the well owners that it was

15

acceptable to drink their water?

16

A.

Not that I know of.

17

Q.

Did Dr. Rudo express objections to this course

18

of action?

19

A.

Not that I know of.

20

Q.

Did anyone else express concern -- well, let

21

me back up.

Did anyone else in HHS express concern about

22

either sending out this letter or about telling well

23

owners it was acceptable to drink the water?

24

A.

Yes.

25

Q.

Who else?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 27 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 28

A.

Danny Staley.

Q.

Danny Staley?

A.

Yes.

Q.

And what is his job?

A.

He is the Director of the Division of Public

Health.

7
8

10

12

The Director of the Division

THE WITNESS:

Public Health.

of ---

11

MR. ROSSER:

BY MR. HOLLEMAN:
Q.

And he is the gentleman to whom you report, is

that correct?

13

A.

That is correct.

14

Q.

And what were his objections or concerns?

15

A.

Similar to mine, that we both felt it made

16

more sense to wait on source determination, because once

17

a source was determined, we would have a sense of if this

18

-- the hexavalent chromium was a contaminant versus

19

naturally occurring.

20

a contaminant, there might be ongoing contamination of

21

wells with the increase in levels.

22

wait until all the information was in and DEQ had made a

23

determination, and then communicate with the well owners

24

in that full context.

25

Q.

That is relevant because if it were

So we felt we should

And when you communicated with the well owners

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MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 29

in that full context, did you -- were you in favor of

telling them it was all right to drink their water?

A.

I was in favor of telling them what their risk

level of the water was, that it isn't regulated anywhere

in North Carolina, and what they could do to treat their

water or reduce their risk if they chose to pursue that.

7
8

Q.

But you wouldn't have told them "it is safe to

drink water with hexavalent chromium above .07" ?

MS. LeVEAUX:

Objection.

10

MR. ROBBINS:

Objection.

11

MR. ROSSER:

Objection.

12

THE WITNESS:

No, I would not have.

13

BY MR. HOLLEMAN:

14

Q.

Now did you express your objection to this

15

letter and this course of action to anyone in government,

16

outside of HHS?

17

A.

No.

18

Q.

Were you or your staff ever asked by anyone to

19

raise the Health Screening Level for hexavalent chromium

20

above .07?

21

A.

No.

22

Q.

Now, did you ever meet with Duke Energy about

23

the hexavalent chromium and vanadium levels prior to this

24

letter going out?

25

A.

Yes.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 29 of 186

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PAGE 30

Q.

And when did you meet with them?

A.

There were two meetings: one by phone sometime

between March and June, and one in person, which was in

June of 2015.

5
6
7
8
9

Q.

'15?

Well let's start with the first one --

the phone conference.


A.
called.
Q.

Who was on the conference call?

The -- I can't remember what they are


It -- like, the legislative liaisons for Duke.
Lobbyist?

10

MR. ROSSER:

Object to the form.

11

THE WITNESS:

Yes.

12

BY MR. HOLLEMAN:

13

Q.

And what were their names?

14

A.

I don't remember.

15

Q.

Were they men or women?

16

A.

Women.

17

Q.

More than one?

18

A.

Two.

19

Q.

Two.

20

A.

A Duke Energy environmental policy person

21

And who else was on the call?

whose last name is McIntyre, I think.

22

Q.

McIntyre?

And that was a man?

23

A.

Yes.

24

Q.

And who else from Duke?

25

A.

There were some lawyers, but I don't know

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1

5/4/16

PAGE 31

their names.

Q.

Were they men or women or both?

A.

I remember men.

Q.

And who was on the call from the government?

A.

I was, Danny Staley, Mina Shehee, Chris Hoke.

Q.

Who is Chris Hoke?

A.

Chris Hoke is in the Division of Public

Health.

policy.

I think his title is Policy -- something about

10

Q.

Is he a man?

11

A.

Yes.

12

Q.

And who else from the government was on the

A.

I think -- I think that was it.

13
14
15

call?
I am not -- I

really don't remember.

16

Q.

And why was the call held?

17

A.

Duke Energy requested to speak with Public

18
19
20
21

Health about our recommendations.


Q.

And how did you learn of that request; who

told you?
A.

Mr. Staley.

22

MR. ROSSER:

I am sorry, Dr. Davies?

23

THE WITNESS:

Mr. Staley.

24

MR. ROSSER:

Thank you.

25

BY MR. HOLLEMAN:

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MEGAN MARIA DAVIES, M.D.


1
2

Q.

5/4/16

PAGE 32

So Mr. Staley was contacted by Duke Energy

about the call, is that your understanding?

A.

I believe so.

Q.

Or was he contacted by somebody else in

government that Duke Energy wanted the call?

MS. LeVEAUX:

Objection.

THE WITNESS:

My memory is he said he was

contacted by the legislative representatives, or the

lobbyists for Duke.

10

BY MR. HOLLEMAN:

11
12

Q.

And why did Duke want to meet and talk with

A.

They wanted to understand why we had made the

you?

13
14

Health Risk Evaluation recommendations that we were

15

making.

16
17
18

Q.

And what did you and the staff from HHS tell

A.

We reviewed our rationale for the approach we

them?

19

were taking, which was that CAMA -- the Coal Ash

20

Management Act -- directed the use of the North Carolina

21

Administrative Code 2L Standards in reviewing the well

22

water tested under CAMA.

23

DEQ, which was then DENR, to do the Health Risk

24

Evaluations for those water samples, we used 2L

25

Standards, IMACs and levels calculated according to the

And so when we were asked by

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 32 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 33

2L Rule to set the Health Screening Standard.

a standard, but a Health Screening Level.

why we used the levels we used.

It is not

And that is

Q.

And what did the Duke Energy people say to

A.

I don't really remember.

Q.

Did they explain the point of why they wanted

you?

a call with you all?

9
10

MR. ROSSER:

Objection.

THE WITNESS:

In general, the questions

11

were, you know, "Why are we looking at hexavalent

12

chromium and vanadium when public water is not held to

13

that standard?"

14

BY MR. HOLLEMAN:

15

Q.

And your answer was?

16

A.

To review our rationale, which we ---

17

Q.

As you stated earlier?

18

A.

As I stated earlier.

19

Q.

And what else did the Duke Energy people say?

20

A.

I don't remember.

21

Q.

Do you remember any other concerns they

22

raised?

23

A.

No.

24

Q.

How did the call end?

25

A.

It just ended.

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MEGAN MARIA DAVIES, M.D.


1
2

Q.

5/4/16

PAGE 34

So there was no resolution and no request from

Duke Energy?

A.

I don't remember.

Q.

So tell me about the meeting with Duke.

did that occur?

A.

That was in June.

Q.

Of 2015?

A.

2015.

Q.

And where did that occur?

10

A.

That occurred at DEQ, the Green Square

11

When

Building, in a conference room.

12

Q.

And who was at the meeting?

13

A.

Harry Sideris.

14

Q.

Who is from Duke Energy?

15

A.

Who is from Duke Energy -- Mr. McIntyre, the

16

Policy -- the Environmental Policy person for Duke

17

Energy, and several lawyers whose names I do not recall.

18

Q.

Do you remember if they were men or women?

19

A.

I think they were all men.

20

Q.

And who else was there from -- let's start

21

with HHS.

Who was there from HHS?

22

A.

Danny Staley and me.

23

Q.

And who was there from DEQ?

24

A.

Secretary van der Vaart, John Evans, Tom

25

Reeder.

Actually, I think there might have been

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 34 of 186

MEGAN MARIA DAVIES, M.D.

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PAGE 35

communications people there.

review all of my notes, but there were a lot of meetings

and discussions over a year and a half.

this meeting, the communications person from DHHS was

there -- Kendra Gerlach, and then a communications person

from DEQ was there.

So, I am sorry, I didn't

So I think at

But I am not positive.

Q.

Was there anybody else from the government

A.

No.

10

Q.

Was there anybody else there at all,

there?

11

government or not government, beyond the people you have

12

listed?

13

A.

Not that I can think of.

14

Q.

Now, how did you learn about the meeting?

15

A.

I don't remember.

16
17
18
19

Somebody in my chain of

command said there was a meeting being organized.


Q.

Were you told or did you learn why the meeting

was being held or who had requested it?


A.

That Duke Energy had requested it.

They --

20

there was a letter -- actually, yes.

21

was addressed to me and Tom Reeder from Mr. Sideris

22

requesting explanation of our levels.

23
24
25

Q.

I think the letter

And what was -- what did the people from Duke

Energy say?
A.

The main concerns that they expressed in the

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 35 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 36

meeting were around the levels we were using for Health

Screening Levels for hexavalent chromium and vanadium,

the issuing of recommendations not to use the water to

drink or cook, and a specific concern about a vanadium

screening level that was used in a situation about a year

before that was higher -- it was 18 I believe, parts per

billion -- and wanting to know why that was used in that

circumstance, and .3 micrograms per liter was used for

the CAMA wells.

10
11

Q.

Did one person at Duke -- was one person from

Duke the primary spokesperson for the company?

12

MR. ROSSER:

Object to form.

13

THE WITNESS:

Mr. Sideris did most of the

14

talking.

15
16
17
18

BY MR. HOLLEMAN:
Q.

Now, did Mr. Sideris or anyone else at Duke

ask you all to rescind the "do not drink" advisories?


A.

I don't remember.

He said he didn't think

19

they were reasonable, but I don't remember if he

20

specifically asked us to do that.

21

Q.

Why was Duke concerned about these levels?

22

MR. ROSSER:

Object to form.

23

MS. LeVEAUX:

Objection.

24

MR. ROBBINS:

Objection.

25

BY MR. HOLLEMAN:

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 36 of 186

MEGAN MARIA DAVIES, M.D.


1

Q.

5/4/16

Do you know?

MR. ROSSER:

Objection.

THE WITNESS:

No.

BY MR. HOLLEMAN:

Q.

PAGE 37

Do you know why you all were meeting with

Duke, of all people or companies, relating to these

levels?

A.

Because they requested a meeting.

Q.

Now, do you know if any Duke company

10

facilities drink from well water that was tested in

11

connection with this CAMA project?

12

A.

I don't know.

13

Q.

Did that come up in the discussions with Mr.

14

Sideris, or on the conference call?

15

A.

I don't remember it.

16

Q.

Well, do you have any idea, if Duke isn't

17

drinking the water, why would they have a say on what the

18

contamination level is appropriate in other people's

19

drinking water?

20

MS. LeVEAUX:

Objection.

21

MR. ROBBINS:

Objection.

22

MR. ROSSER:

Objection to form.

23

THE WITNESS:

I don't know.

24

BY MR. HOLLEMAN:

25

Q.

You referred to the vanadium level at one time

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 37 of 186

MEGAN MARIA DAVIES, M.D.


1

perhaps being 18.

happened?

5/4/16

PAGE 38

When did that -- do you know when that

A.

That was the Summer of 2014.

Q.

And could you explain what happened?

A.

It was before CAMA was passed, or written.

Some people in, I want to say, Gaston County -- but it

was in an area near somewhere around a coal ash pond had

their water tested by a private laboratory and had

elevated vanadium.

And DEQ consulted with the

10

toxicologists in the Occupational and Environmental

11

Epidemiology Branch that Dr. Shehee directs on what

12

recommendation to give those well owners.

13
14
15
16

Q.

And what is the relevance of the 18 level to

this event?
A.

The relevance is it is different than the

level -- oh, to that?

17

Q.

Was it used?

What happened?

18

A.

To that?

19

Q.

Right.

20

A.

To that?

21

Q.

Right.

22

A.

Yes, it was used as the screening level.

What happened?

It

23

was calculated by the toxicologists in the Division of

24

Waste Management and Occupational and Environmental

25

Epidemiology Branch of the Division of Public Health,

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 38 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 39

based on existing literature as the Health Screening

Level.

3
4

Q.

And I believe that there is a so-called IMAC,

interim standard for vanadium, correct?

A.

Yes.

Q.

And it is 0.3 parts per billion, is that

A.

Yes.

Q.

And was that -- I believe that was established

10

right?

in 2010, is that right?

11

A.

I don't know.

12

Q.

Was it in effect when the 2014 event occurred,

13

do you know?

14

A.

Yes.

15

Q.

So why did they not use the IMAC in that

16
17

situation?
A.

When I asked my staff about it, they explained

18

that DEQ was considering updating the IMAC, and -- based

19

on literature.

20

toxicologists in DEQ, calculated the level at that time

21

and used it.

22

Q.

And so they, in partnership with the

Now, for reviewing the wells around the coal

23

ash sites you all, as I understand, used the IMAC as the

24

Health Screening Level, is that correct?

25

A.

Yes.

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MEGAN MARIA DAVIES, M.D.

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PAGE 40

Q.

And that is 0.3?

A.

Yes.

Q.

Now, why are you using that instead of 18?

A.

Because the 2L Standard or the 2L Rule was

referenced in CAMA, and so we understood that to be our

direction.

7
8

Q.

Do you know if your staff has determined that

use of 18 was a mistake?

9
10

MR. ROSSER:

Object to form.

THE WITNESS:

I asked my staff to relook at

11

vanadium when this was brought to my attention.

12

toxicologists on my staff re-reviewed the literature and

13

calculated a lower level.

14

And the

BY MR. HOLLEMAN:

15

Q.

And was that lower level 0.3?

16

A.

No.

17

Q.

Do you know what it was?

18

A.

It was 2.4 something.

19

Q.

But in the end, following the statute, you

20

used 0.3, is that correct?

21

A.

Yes.

22

Q.

Now, when the 0. -- oh, let me ask you this.

23

During your conversations with Duke Energy, either on the

24

phone or in person, did anyone in those meetings raise

25

this possibility of the legislature changing the Public

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 40 of 186

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1

5/4/16

Health Section's authority over wells?

MR. ROSSER:

Object to form.

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

No.

BY MR. HOLLEMAN:

PAGE 41

Q.

Now, after the meeting with Duke in June of

2015, did you have any other meetings or conversations or

e-mail communications with Duke?

10

A.

I received a letter from Mr. Sideris

11

summarizing his understanding of the meeting, and I

12

responded with a letter making some clarifications.

13
14

Q.

And have you received any other communications

from Duke Energy?

15

A.

No.

16

Q.

Do you know if Dr. Williams has met with Duke

17

Energy?

18

A.

No.

19

Q.

You don't know?

20

A.

I don't know.

21

Q.

Do you know if anyone else at HHS has met with

22

or talked with Duke Energy, other than the one phone call

23

and the one meeting in which you participated?

24

A.

Yes.

25

Q.

And who was that?

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MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 42

A.

Secretary Brajer.

Q.

And -- Secretary who?

A.

Rick Brajer.

Q.

And he is the Secretary of the Department,

A.

Yes.

Q.

And when did he meet with Duke?

A.

Sometime -- sometime between when he came on

9
10
11
12
13
14
15
16
17
18

HHS?

board as the Secretary, which I think was the Summer of


2015, and -- sometime between summer and fall.
Q.

And when did the meeting occur?

When did the

meeting with the Secretary and Duke occur?


A.

Like -- can you clarify?

Are you asking the

time of day or --Q.

I mean, do you know more than between those

two time periods?


A.

No, I -- I don't.

I wasn't present.

I wasn't

invited, so I don't know the date.

19

Q.

Do you know who else was at the meeting?

20

A.

No.

21

Q.

Do you know where the meeting occurred?

22

A.

No.

23

Q.

Do you know who from Duke attended?

24

A.

No.

25

Q.

And how did you learn of the meeting?

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MEGAN MARIA DAVIES, M.D.

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PAGE 43

A.

Secretary Brajer mentioned it in a meeting.

Q.

And what did he say about it?

A.

That he had met with them and -- really, I

4
5
6

don't recall much more.


Q.

Did he say they had discussed the hexavalent

chromium or vanadium issues?

A.

I don't remember.

Q.

Did he say if they discussed the well water

issue in general?

10

A.

Yes.

11

Q.

Did he say what Duke had said to him?

12

A.

I don't remember.

13

Q.

Do you remember if this was a dinner at the

14

Governor's Mansion where he met with Duke?

15

A.

I don't know.

16

Q.

Now, have you ever met with the Governor or

17

anyone from the Governor's staff concerning the issue of

18

the wells or well water around coal ash sites?

19
20

A.

I have not met with the Governor.

I have

spoken by phone with staff.

21

Q.

And which of his staff have you spoken with?

22

A.

Josh Ellis, Communications Office.

23

Matt

McKillip.

24

Q.

And what is Matt's role?

25

A.

I don't know his title in the office of the

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 43 of 186

MEGAN MARIA DAVIES, M.D.


1

Governor.

2
3

Q.

5/4/16

PAGE 44

He was at DHHS as a policy advisor.


Well, let's start with the first person.

think his name was Josh, is that right?

(Witness nods affirmatively.)

Q.

And how many times did you talk with Josh?

A.

I can't give you an exact number, but several

Q.

And what -- did you call him or did he call

A.

It was usually a conference call that got

times.

8
9
10
11
12

you?

arranged that I was invited to.


Q.

13

It included him, obviously?


(Witness nods affirmatively.)

14

Q.

You need to say "yes," for the record.

15

A.

Yes.

16

Q.

And of course it included you.

17

Who else was

on the conference calls with Josh?

18

A.

Kendra Gerlach.

19

Q.

And who is he?

20

A.

She is a Communications Director in the

21

Department of Health and Human Services.

22

Q.

And who else?

23

A.

There were several calls, so there were

24

different people at different times.

25

distinguish them all in my memory.

And I can't
Some of those calls

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 44 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 45

probably had -- some of those calls had Danny Staley also

on the call.

3
4

Over what time period did the calls take

A.

Several in early 2015.

I think probably

March, mostly, of 2015.

7
8

Q.
place?

5
6

That is what I am sure of.

Q.

Did any of the calls deal with the "do drink"

letter that was issued in March of 2016?

A.

No.

10

Q.

Did the calls deal with the "do not drink"

11

advisory that went out in -- around June of 2015?

12

A.

Yes.

13

Q.

And what was expressed to you by Josh at the

14

Governor's Office?

15
16

A.

Concern over wording on the Health Risk

Evaluation form.

17

Q.

And which part of the wording?

18

A.

The main issue was wanting to have wording on

19

there that reflected that Safe Drinking Water Act

20

Standards were not exceeded.

21

Q.

Well, that -- that is true because there

22

aren't any for hexavalent chromium and vanadium, is that

23

right?

24

MR. ROSSER:

Object to the form.

25

MR. ROBBINS:

Objection.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 45 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

MS. LeVEAUX:

Objection.

THE WITNESS:

Yes.

BY MR. HOLLEMAN:

Q.

PAGE 46

And, in fact, when the letter was sent out,

people were told in the letter that "your well water has

been determined to meet all the criteria of the Federal

Safe Drinking Water Act for Public Drinking water"; is

that correct?

A.

Yes.

10

Q.

But they were not told, however, there were no

11

Federal Standards for vanadium or hexavalent chromium?

12

MR. ROSSER:

13

BY MR. HOLLEMAN:

14

Q.

Object to the form.

That was not included in the letter, was it?

15

MR. ROSSER:

Objection.

16

MR. BARKLEY:

Objection.

17

MS. LeVEAUX:

Objection.

18

MR. ROBBINS:

Objection.

19

THE WITNESS:

I think not.

20

BY MR. HOLLEMAN:

21

Q.

And did you all -- or did someone at HHS -- or

22

at DEQ, rather -- did someone at DEQ, did they change the

23

wording of the letter in response to the concerns of the

24

Governor's Office?

25

MS. LeVEAUX:

Objection.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 46 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 47

MR. ROBBINS:

Objection.

MR. ROSSER:

Same objection.

THE WITNESS:

So I need to step back and add

something about the calls.

communications person from DEQ.

I think it was a man.

that language on the HRE.

Some of those calls had a


And I don't remember --

And DEQ was advocating for having

BY MR. HOLLEMAN:

Q.

Did anybody suggest, "Well, we should tell

10

these people, too, there aren't any Federal Standards for

11

the two substances that is in their water"?

12

MR. ROSSER:

Object to the form.

13

MS. LeVEAUX:

Objection.

14

MR. ROBBINS:

Objection.

15

THE WITNESS:

Yes.

16

BY MR. HOLLEMAN:

17

Q.

And who said that or suggested that?

18

A.

I did.

19

Q.

And what did the Governor's Office say about

A.

There was a lot of general conversation on

20
21

that?

22

these calls.

23

Office -- what Josh Ellis said.

24
25

Q.

And I don't remember what the Governor's

Did Josh Ellis object to having that

information in the letter?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 47 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 48

A.

I don't remember.

Q.

Did DEQ -- the DEQ person object to having it

in the letter?

A.

Yes.

Q.

And why did they object to telling the people

that?

MS. LeVEAUX:

Objection.

THE WITNESS:

So, again, I just want to be

clear that there were a series of phone calls.

And I

10

can't distinguish every single call and say specifically

11

who said exactly what, when.

12

several conversations.

13

circular conversations.

14

This is a memory that spans

And they were very similar

So the conversation with DEQ about especially

15

hexavalent chromium and the Safe Drinking Water Act

16

Standards included -- had as a component of it that

17

several of the folks at DEQ felt that the total chromium

18

standard should serve as the hexavalent chromium

19

standard.

20

why ---

21
22

And so that was part of the argument about

BY MR. HOLLEMAN:
Q.

But why wouldn't they want to tell the people

23

who received this notice the full information?

24

tell you -- give a reason for that?

25

MR. ROBBINS:

Did they

Objection.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 48 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 49

MS. LeVEAUX:

Objection.

MR. ROSSER:

Object to the form.

THE WITNESS:

No.

BY MR. HOLLEMAN:

5
6

Q.

During these calls, did anybody raise any

concerns of Duke Energy in the calls?

A.

No.

Q.

Do you remember anything else that was

9
10

discussed about the "do not drink" advisories that went


out?

11

A.

No.

12

Q.

Now, I believe you said you talked with

13

someone else in the Governor's Office, and his name

14

is ---

15

A.

Matt McKillip.

16

Q.

And when did you talk with him?

17

A.

So most of the time when I talked with -- when

18

Matt McKillip was part of conversations, he was in DHHS.

19

More recently, he was on one short conference call prior

20

to DEQ giving an update to the environmental -- the Coal

21

Ash Committee at the General Assembly.

22

asked to give an update to that committee.

23

So DEQ had been

And in preparation, we had a very short phone

24

call.

And at that call, DEQ requested that I be present

25

to speak to the levels.

So Matt was on that call.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 49 of 186

MEGAN MARIA DAVIES, M.D.


1
2

Q.

5/4/16

PAGE 50

And when he was on the call, was he at the

Governor's Office at that time?

A.

Yes.

Q.

And what was his role in the call?

A.

He didn't really say much.

Q.

What did he say, or what was the content of

7
8
9

what he said?
A.

That he thought it would be good if DPH had

spoke specifically to the levels in the update.

10

Q.

And did he say why?

11

A.

No.

12

Q.

I believe you said -- do you have notes of

13

your conversations?

14

that you didn't review your notes.

15
16
17

A.

You referred to notes earlier -What notes are those?

I have very limited notes.

And, yes, I have

some limited notes.


Q.

Now, if I could draw your attention back to

18

Exhibit 276, do you know who this letter went to?

19

that is the "do drink" letter.

20

HHS know who it was mailed to?

And

And by that I mean, does

21

A.

Yes.

22

Q.

And so you all have a list of people?

23

A.

Yes.

24

Q.

Now, did it go to every well owner who had

25

received the "do not drink" advisory?

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MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 51

A.

No.

Q.

And how did the agency distinguish between who

got the "do drink" letter and who didn't get the "do

drink" letter?

A.

This letter went to people who had levels

above the Screening Level for hexavalent chromium or

vanadium or both.

8
9
10

Q.

So everybody who had levels above for

vanadium, hexavalent chromium or both, got the "do drink"


letter?

11

A.

No.

12

Q.

Okay.

13

A.

It was not sent to anyone who had those

Who didn't get it?

14

levels, plus something else that exceeded the 2L

15

Standard.

So if you also had ---

16

Q.

(Interposing)

17

A.

Elevated, yes, then we didn't send the letter.

18

Q.

Why did you make that distinction?

19

A.

The letter was specific to hexavalent chromium

20
21
22

Iron for example?

and vanadium.
Q.

Well, who made that -- who made the decision

to make that distinction on the letters?

23

A.

I don't know.

24

Q.

How did you learn about that distinction?

25

A.

We had conversations with Dr. Williams and

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MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 52

with the Communications Office about who should receive

the letter.

evolved.

Q.

So I learned about it as the conversations

You didn't make the decision to make that

distinction, is that correct?

A.

Yes, that is correct.

Q.

And no one who reports to you made that

decision, is that right?

A.

That is correct.

10

Q.

So it would either be -- am I correct to say

11

it would either be Mr. Daily [sic] or Mr. Williams or

12

someone above them?

13

A.

Probably.

14

Q.

Who wrote the letter?

15

Oh, before we get to

that, does that distinction make sense to you?

16

A.

It does.

17

Q.

Well, isn't -- hexavalent chromium and

18

vanadium are more serious health concerns than iron,

19

aren't they; is that true?

20

MR. ROSSER:

Object to form.

21

MS. LeVEAUX:

Objection.

22

MR. ROBBINS:

Objection.

23

THE WITNESS:

No.

24

BY MR. HOLLEMAN:

25

Q.

Is that true in this context of these people?

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MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 53

MR. ROSSER:

Same objection.

THE WITNESS:

Yeah.

BY MR. HOLLEMAN:

Q.

Yes.

So tell me how that distinction makes sense,

that we will send it to people who have hexavalent

chromium and vanadium exceedances, but if they also have

iron, we are not going to send it to them?

MS. LeVEAUX:

Objection.

THE WITNESS:

One of the concerns we always

10

have is the interaction of chemicals.

11

part of discussions, I was concerned that we not

12

inadvertently send a letter to a well owner who might

13

have an elevation of something like lead.

14
15
16
17

And so when I was

BY MR. HOLLEMAN:
Q.

I understand something like lead, but what

about something like iron?


A.

So I think the logistics of doing this the

18

approach was to send this letter out to the people who

19

had only vanadium and/or hexavalent chromium, and then we

20

examine the other wells.

21

Q.

Have any of the wells who were excluded from

22

the first round of letters subsequently gotten "do drink"

23

letters?

24

A.

No.

25

Q.

So no more "do drink" letters have gone out,

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1

5/4/16

PAGE 54

is that correct, since the first round on March of 2016?

A.

Yes.

Q.

Now, who wrote it?

A.

It was dictated by Dr. Williams.

Q.

And who did he dictate it to?

A.

Well, I was present, and Mina Shehee did the

7
8
9

typing.
Q.

Now, when he dictated it was anybody else

present other than you three?

10

A.

Danny Staley.

11

Q.

And after he dictated it, was it sent for

12

review by anyone?

13

A.

Yes, I think so.

14

Q.

To whom?

15

A.

I don't know.

16

Q.

And tell me why you think that?

17

A.

Because this isn't exactly what he dictated.

18

It is very close.

So it obviously got reviewed.

19

Q.

Somewhere?

20

A.

Yes.

It certainly was reviewed by our

21

Communications Office, because they review all letters

22

that go out.

23
24
25

Q.

Do you know of anyone who approved it before

it went out, other than Dr. Williams?


A.

Well, presumably Mr. Reeder, since he signed

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it.

Q.

Yes.

Other than Mr. Reeder and Mr. Williams?

A.

I don't know of anybody else.

Q.

Now, the 0.07 limit for hexavalent chromium,

as you said, that was calculated or determined by your

staff and your section.

its own?

Did DEQ also do a calculation of

MS. LeVEAUX:

Objection.

THE WITNESS:

DEQ did a calculation in

10

discussion with -- after discussion with my toxicologist

11

on my staff, and then sent that to the Occupational

12

Environmental and Epidemiology Branch toxicologist to

13

review and see if they agreed with it.

14
15
16

Q.

And did they reach -- did DEQ reach the same

conclusion as HHS, 0.07?


A.

It is the opposite of what you are saying.

17

The DEQ toxicologist did the calculation and sent it to

18

DPH toxicologist to review.

19

agreed.

20

Q.

21

correct?

And the DPH toxicologist

So both agencies agreed with the 0.07, is that

22

MR. ROSSER:

Object to form.

23

THE WITNESS:

Yes.

24

BY MR. HOLLEMAN:

25

Q.

Now do you remember what changed in the "do

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PAGE 56

drink" letter between Dr. Williams dictation and this

final version?

A.

No.

Q.

If we could look at the first sentence, that

first sentence says "We have withdrawn the do not drink

usage recommendation because we have determined your

water is as safe to drink as water in most cities and

towns across the state and country."

sentence?

Do you see that

10

A.

Yes.

11

Q.

Is that true?

12

A.

I don't know.

13

Q.

Tell me why you have doubts about the truth of

14

that sentence?

15

MR. ROBBINS:

Objection.

16

MS. LeVEAUX:

Objection.

17

MR. ROSSER:

Objection to form.

18

THE WITNESS:

I think that sentence is in

19

reference to hexavalent chromium and vanadium.

20

haven't reviewed the hexavalent chromium levels in most

21

cities and towns in North Carolina.

22
23

And I

BY MR. HOLLEMAN:
Q.

Now, are you aware that some of the people who

24

had hexavalent chromium tested in their wells had levels

25

of 20 or more?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 56 of 186

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A.

Yes.

Q.

Are you aware of any town in North Carolina

that has been found to have hexavalent chromium at the

level of 20 or greater in its public drinking water

supply for hexavalent chromium?

A.

No.

Q.

Do you know, did Dr. Williams survey all of

the cities and towns across the state to determine the

levels of hexavalent chromium in their drinking water?

10

A.

I don't know.

11

Q.

Are you aware of anyone at HHS surveying the

12

levels of hexavalent chromium in their drinking water --

13

in the drinking water supplies of public drinking water

14

facilities across the state?

15

MS. LeVEAUX:

Objection.

16

THE WITNESS:

No, I am not aware.

17

BY MR. HOLLEMAN:

18

Q.

So when he was dictating this letter, did you

19

or Dr. Shehee or Dr. Williams himself raise a concern

20

about making that statement in the absence of evidence

21

supporting it?

22

MR. ROSSER:

Objection to form.

23

MS. LeVEAUX:

Objection.

24

MR. ROBBINS:

Objection to form.

25

THE WITNESS:

I expressed a concern based on

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PAGE 58

levels I had seen for Charlotte and Raleigh.

2
3

5/4/16

BY MR. HOLLEMAN:
Q.

Which are very low, is that correct?

MR. ROSSER:

Objection to the form.

THE WITNESS:

They are, on average, lower

than those measured in the drinking -- in the wells under

-- in the drinking wells under the CAMA sampling.

8
9

BY MR. HOLLEMAN:
Q.

And so what did he say?

What did Dr. Williams

10

say about that?

11

A.

I don't remember what Dr. Williams said.

12

Q.

Do you remember the general content of his

13
14

response?
A.

He expressed confidence in the information Mr.

15

Reeder had given him, and that Mr. Reeder had said

16

publically multiple times.

17
18
19

Q.

And Mr. Reeder had said this multiple times?

Is that what you said?


A.

I didn't quite hear the ---

(Interposing) He had said that public water

20

supplies have levels as high or higher than those in the

21

drinking wells.

22

Q.

23

Mr. Reeder said that, according to Dr.

Williams?

24

A.

Yes.

25

Q.

And so when Dr. Williams wrote this, he was

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relying on what Mr. Reeder told him?

MR. ROSSER:

Object to the form.

THE WITNESS:

He referenced what Mr. Reeder

told him.

5
6
7

BY MR. HOLLEMAN:
Q.

To your knowledge, did he refer to anything

else he was relying on, other than what Reeder said?

A.

No.

Q.

Now, I guess you know a lot of the wells that

10

got the "do not drink" advisory were around this facility

11

called Buck in Salisbury, is that right?

12

(Witness nods affirmatively.)

13

Q.

You need to say "yes" for the ---

14

A.

Yes.

15

Q.

And the nearby drinking water supply for that

16

community would be Salisbury, correct -- would be the

17

public drinking water system?

18

A.

I don't know.

19

Q.

Well, you know Buck is in Salisbury, right?

20

A.

Yes.

21

Q.

Do you know, did Dr. Reeder -- I am sorry.

22

Did Mr. Reeder or did Dr. Williams look at the Salisbury

23

report before they made this statement in the first

24

sentence, and sent it to people who lived in Buck [sic]?

25

VOICE:

Objection.

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THE WITNESS:

BY MR. HOLLEMAN:

Q.

PAGE 60

I don't know.

Let me show you -- this has previously been

marked in Dr. Shehee's deposition, so this is nothing

new ---

MS. LeVEAUX:

Mr. Holleman, which Exhibit is

MR. HOLLEMAN:

This is Exhibit 278.

MS. LeVEAUX:

Thank you.

that?

10
11

BY MR. HOLLEMAN:
Q.

And if you look on the second page -- I am

12

going to show it to you -- it is a Drinking Water Supply

13

Report from the town of Salisbury.

14

that next to the bottom blue box, do you see the levels

15

there for hexavalent chromium?

16

And if you look at

(Witness peruses document.)

17

A.

Yes.

18

Q.

And they are all under one, correct?

19

They are

all less than one?

20

A.

Yes.

21

Q.

Now, would you think, when sending this letter

22

to people who live in Salisbury, that the relevant water

23

system for them to compare themselves to is the

24

neighboring drinking water system?

25

that statement?

Would you agree with

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PAGE 61

A.

Yes.

Q.

So do you believe, to have been truthful to

the people who lived around Buck, they should have been

informed that, in fact, the level of hexavalent chromium

in their wells is several hundred or thousands times

higher than what is in the neighboring public water

supply?

MR. BARKLEY:

Objection.

MS. LeVEAUX:

Objection.

10

MR. ROBBINS:

Objection.

11

MR. ROSSER:

Object to the form.

12

THE WITNESS:

I think it would have been

13

ideal to have sent communications that were more specific

14

to location.

15
16

BY MR. HOLLEMAN:
Q.

And do you think those communications should

17

have included specific information about the neighboring

18

drinking water supply?

19

A.

Yes.

20

Q.

Do you know if Dr. Williams, since he sent

21

this letter out, has actually checked to see if it is

22

true that the hexavalent chromium levels in the drinking

23

water in most cities and towns across North Carolina ---

24

A.

(Interposing) I dont know.

25

Q.

--- are comparable to these in these wells?

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PAGE 62

A.

I don't know.

Q.

The second sentence says, "It is appropriate

to return to drinking and using your water for cooking,

bathing and other household uses."

that sentence?

A.

That is not how I would say it.

Q.

What would you have said?

A.

I would have said something about, while there

Do you agree with

is an elevated risk for -- associated with -- I am sorry.

10

I always say things really technically.

11

my limitations in communication.

12

elevated -- I would say something along the lines of

13

while there is an elevated risk (see attached chart)

14

associated with levels of hexavalent chromium above .07,

15

you can make a choice about that risk and how you use

16

your water.

17

department to discuss further.

18

Q.

That is one of

While there is an

And please consult your local health

So you would not have told them it is

19

appropriate to return to drinking the water; you would

20

have given them information and let them make that

21

decision?

22

MS. LeVEAUX:

Objection.

23

MR. ROBBINS:

Objection.

24

THE WITNESS:

Yes.

25

BY MR. HOLLEMAN:

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Q.

5/4/16

PAGE 63

Now, let me show you Exhibit 279.

As you can

see, it previously was in Dr. Shehee's deposition.

is one of the "do not drink" advisories that was sent to

a family in Salisbury; do you see that?

(Witness peruses document.)

A.

Yes.

Q.

And if you turn back to the first page,

please, so I can reference this.

-- hexavalent chromium in his well is 21, is that

Do you see the chromium

10

correct?

11

A.

It is 21.8 micrograms per liter.

12

Q.

All right.

13

That

Now, that is a significant

multiple of .07, would you agree?

14

A.

Yes.

15

Q.

And I am using what I call Seneca math -- that

16

is where I went to high school -- so just correct me if I

17

have got it wrong, but that is -- seven would be a

18

hundred times more than .07, is that correct?

19

A.

Yes.

20

Q.

And so 21 would be, like, 300 times, is that

22

A.

Yes.

23

Q.

Would you agree that this gentleman's well

21

24
25

right?

water is less safe than the well water in Salisbury?


MR. ROBBINS:

Objection.

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MS. LeVEAUX:

Objection.

MR. ROSSER:

Object to form.

BY MR. HOLLEMAN:

PAGE 64

Q.

Than drinking water in the Salisbury well?

A.

This well water has more hexavalent chromium

in it, and therefore a higher associated risk for the

adverse health effects of hexavalent chromium.

Q.

Which is cancer, right?

A.

Yes.

10

Q.

And would you agree, therefore, the water in

11

this gentleman's well is not as safe as the drinking

12

water at the Salisbury Public Water System, which has

13

less than one parts per billion?

14

MS. LeVEAUX:

Objection.

15

MR. ROBBINS:

Objection.

16

MR. ROSSER:

Object to form.

17

THE WITNESS:

Based on the hexavalent

18

chromium level, yes.

19
20
21

BY MR. HOLLEMAN:
Q.

Now, would you regularly drink drinking water,

yourself, that has 21 parts of hexavalent chromium?

22

A.

No.

23

Q.

Would you recommend that -- when you were once

24

a physician -- a personal physician, would you recommend

25

to a patient that a patient regularly drink drinking

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PAGE 65

water that has a hexavalent chromium level of 21 parts

per billion?

A.

No.

Q.

Would you recommend someone drink drinking

water regularly that has hexavalent chromium above .07,

the Health Screening Level?

A.

That depends.

Q.

Depends on what?

A.

On what their options are.

10

Q.

Let's assume they have the option to obtain

11

drinking water at less than .07 hexavalent chromium from

12

another source.

13

and not drink the water with above .07?

14

A.

15

favorable, yes.

16

Q.

Would you recommend they use that water

If all of the other parameters were also

Now, would you recommend to a patient that

17

they regularly drink drinking water that has 10 parts per

18

billion of hexavalent chromium?

19

A.

No.

20

Q.

What about five parts?

21

A.

No.

22

Q.

One part?

23
24
25

(Pause.)
A.

So I wouldn't recommend they regularly drink

water -- are you asking would I tell that person not to

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PAGE 66

drink their water, or are you asking would I recommend

that they drink that water?

3
4

Q.

Well, let's start would you recommend they

regularly drink water above -- at one part per billion?

MR. ROSSER:

Object to form.

THE WITNESS:

No.

BY MR. HOLLEMAN:

8
9

Q.

Now, the standard .07, is that for vulnerable

people or is that just for an adult?

10

A.

It is an adult.

11

Q.

Would you be more careful with a pregnant

13

A.

Yes.

14

Q.

Would you be more careful with children?

15

A.

Yes.

16

Q.

Would you be more careful with infants?

17

A.

Yes.

18

Q.

So you would be more concerned -- you would

12

woman?

19

look, perhaps, at a lower level for pregnant women or

20

small children, is that correct?

21
22
23

A.

I would consult a toxicologist for the

calculation, but, yes.


Q.

Before Dr. Williams sent out this letter, did

24

he determine whether any of these households had small

25

children or pregnant women in them?

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PAGE 67

MR. ROBBINS:

Objection.

THE WITNESS:

Not that I know of.

BY MR. HOLLEMAN:

4
5

Q.

What about if you had pre-existing illness,

would you be more careful?

A.

Depending on the illness, possibly.

Q.

What kind of illnesses would you be more

careful with?

A.

Gastrointestinal or renal.

10

Q.

If you look at the second paragraph, he has

11

the sentence about "in an extensive study."

12

already discussed that, I think.

13

"Based on this review, as well as our own independent

14

assessments, we have now concluded the water out of your

15

well is as safe as a majority of the public water systems

16

in the country."

17

And we have

But then it says,

What was Dr. Williams' independent assessment,

18

apart from what Mr. Reeder told him and the study you

19

described earlier?

20

A.

I don't know.

21

Q.

Now, this letter says, again, "All public

22

water systems are required to meet or exceed federal

23

standards for safe drinking water."

24

out, though, that there is no federal standard for either

25

vanadium or hexavalent chromium, is that right?

It does not point

This

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letter doesn't say that?

MS. LeVEAUX:

Objection.

MR. ROSSER:

Objection to form.

MR. ROBBINS:

Objection.

MR. BARKLEY:

Objection.

(Witness peruses document.)

THE WITNESS:

BY MR. HOLLEMAN:

Q.

It does not say that.

When the letter was being drafted, did you or

10

Dr. Shehee suggest to Dr. Williams that he should put

11

that in this letter?

12
13
14

A.

I did not.

I don't remember if Dr. Shehee

Q.

The next sentence says -- not the next

did.

15

sentence, the next paragraph says, "Now we have had time

16

to study and review more data."

17

or review of data, apart from what you have already

18

described?

Do you know of any study

19

A.

No.

20

Q.

Now, the next to the last sentence says, "Our

21

mission at the Department of Health and Human Services

22

and the Department of Environmental Quality is to protect

23

the health and safety of all North Carolinians."

24

believe this letter supported that mission or was

25

consistent with that mission?

Do you

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5/4/16

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

MR. ROSSER:

Object to form.

THE WITNESS:

No.

BY MR. HOLLEMAN:

Q.

PAGE 69

The final paragraph says, "During the next

several weeks, we will issue new forms that reflect this

updated usage recommendation."

Did that happen?

A.

No.

10

Q.

And why did it not happen?

11

A.

Dr. Shehee, Mr. Staley and I recommended

12

strongly against it.

13

Q.

And why is that?

14

A.

It didn't feel right.

15

Q.

How didn't it feel right, or why didn't it

16
17
18

feel right?
A.

The Health Risk Evaluation was the same, and

this letter already changed the recommendation.

19

Q.

Could you explain that further?

20

A.

It wasn't necessary.

21

Q.

What kind of form was Dr. Williams and Mr.

22

Reeder contemplating?

23

MS. LeVEAUX:

Objection.

24

THE WITNESS:

Dr. Williams asked us to

25

revise the Health Risk Evaluation form that we had

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PAGE 70

originally used to reflect the new recommendations.

2
3

5/4/16

BY MR. HOLLEMAN:
Q.

So he was asking you to come up with a higher

number than .07?

MS. LeVEAUX:

Objection.

THE WITNESS:

No.

BY MR. HOLLEMAN:

Q.

What did he mean by "revise"?

A.

To change the recommendation on the form.

10

Q.

And the form -- is that what is attached to

11
12
13
14

Exhibit 279?
A.

That is the Well Water Information and Use

Recommendations for Inorganic Chemical Contaminants.


Q.

And those of you who recommended against it

15

were not willing to issue a new form with those -- with

16

the changes Dr. Williams requested, is that right?

17

MS. LeVEAUX:

Objection.

18

THE WITNESS:

Yes.

19

BY MR. HOLLEMAN:

20
21
22
23
24
25

Q.

Now, Dr. Rudo -- what is his role at your

department?
A.

He is a toxicologist in the Occupational and

Environmental Epidemiology Branch.


Q.

And what was his role with respect to

determining the .07 Health Screening Level for hexavalent

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PAGE 71

chromium?

A.

He worked with the toxicologist at DEQ, and

the other toxicologists in DHHS for -- not DHHS, but OEE,

the Occupational and Environmental Epidemiology, on what

Cancer Slope Factor to use in the equation in the 2L

Rule, and reviewed the results and agreed with them.

Q.

Now correct me if I am wrong, but I believe

after it was determined, Dr. Rudo also appeared for the

Department at various public meetings to explain the

10

Health Screening Levels, is that correct?

11

A.

That is correct.

12

Q.

Now, is it correct that Dr. Rudo is now on

14

A.

That is correct.

15

Q.

And why is Dr. Rudo on leave?

13

leave?

16

MR. ROBBINS:

Objection.

17

MR. BARKLEY:

Objection.

18

THE WITNESS:

He requested leave.

19
20

I -- I am

not sure what is appropriate for me to say --MR. ROBBINS:

I have to object and direct

21

her not to answer.

22

of the General Statutes, is confidential information.

23

Leave information, under Chapter 126

MR. HOLLEMAN:

Well, let me ask this

24

question, and you can tell me if she can answer it.

Does

25

his leave have anything to do with the change to the "do

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PAGE 72

drink" letter?

MR. ROBBINS:

I would contend that anything

concerning his leave is confidential information under

Chapter 126.

5
6

MR. ROBBINS:

And I would instruct her not

to answer.

9
10

And you would instruct her not

to answer?

7
8

MR. HOLLEMAN:

BY MR. HOLLEMAN:
Q.

Let me do this: have you heard government

11

officials in North Carolina raise questions about whether

12

bottled water that is being provided to these residents

13

contains hexavalent chromium or vanadium?

14

A.

Yes.

15

Q.

Who have you heard raise those issues?

16

A.

Tom Reeder, Bob Midgette, Jessica Godreau.

17

Q.

And who is Bob Midgette?

18

A.

He works in DEQ in the Public Water Supply --

19

I think it is called the Public Water Supply Branch.

20

Q.

And who is the third person?

21

A.

Jessica Godreau.

22

Q.

And who is she?

23

A.

She directs the Public Water Supply Branch.

24

Q.

Are you aware of any testing of bottled water

25

done by DEQ or HHS to determine the hexavalent chromium

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PAGE 73

levels in it?

A.

No, I am not aware of any.

Q.

Or vanadium levels?

A.

No.

Q.

Are you aware that the people at DEQ have any

factual basis to raise that issue?

MS. LeVEAUX:

Objection.

MR. ROSSER:

Objection.

MR. ROBBINS:

Objection.

10

THE WITNESS:

I don't know.

11

would have to ask them.

12
13

You really

BY MR. HOLLEMAN:
Q.

But you don't know of any facts to indicate

14

there is hexavalent chromium or vanadium in the bottled

15

water that is being provided by Duke Energy to these

16

people?

17

MS. LeVEAUX:

Objection.

18

THE WITNESS:

I do not.

19

BY MR. HOLLEMAN:

20

Q.

And, in fact, they could just go and fill the

21

bottles at the Salisbury Public Water System and know

22

they had low levels, couldn't they?

23

MR. ROSSER:

Object to form.

24

MS. LeVEAUX:

Objection.

25

MR. ROBBINS:

Objection.

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2

THE WITNESS:

PAGE 74

They would know they had the

levels published.

3
4

5/4/16

BY MR. HOLLEMAN:
Q.

Are you familiar with -- and this is in an

exhibit that was in Ms. Shehee -- Dr. Shehee's

deposition, so I will show it to you.

EPA screening level for hexavalent chromium in tap water.

This is a report prepared by Duke Energy's expert.

Exhibit 277.

10

It refers to an

It is

I just wanted to ask you have you ever

heard of what they are referring to there?

11

(Witness peruses document.)

12

A.

Can you repeat the question?

13

Q.

I am really just trying to find out what is

14

being referred to there when it talks about the EPA

15

screening level for hexavalent chromium in tap water.

16

you know what they are referring to?

17

A.

Yes.

18

Q.

What is that?

19

A.

It is a Health Goal that EPA set for

20

hexavalent chromium of .3 micrograms -- no, I am sorry.

21

.03 micrograms -- .03 parts per billion.

Do

22

Q.

And that is approximately half of the Health

23

Screening Level that DEQ and HHS ultimately adopted, is

24

that correct?

25

A.

Correct.

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Q.

5/4/16

PAGE 75

Now, when you review how state and federal

governments dealt with hexavalent chromium, did you

discover this standard?

A.

Yes.

Q.

And did you report it to Dr. Williams?

A.

Yes.

Q.

So when he refers in the "do drink" letter to

HHS's study of state and federal practices regarding

hexavalent chromium, that includes the fact that the EPA

10

has a Health Goal that is half of the Health Screening

11

Level for chromium ---

12

MS. LeVEAUX:

Objection.

13

MR. ROBBINS:

Objection.

14

MR. ROSSER:

Objection.

15

BY MR. HOLLEMAN:

16

Q.

--- for hexavalent chromium?

17

A.

Yes.

18

Q.

And when you were doing the study of -- survey

19

of state practices, did you come across the California

20

Public Health Goal?

21

A.

Yes.

22

Q.

And how much is it?

23

A.

.02 micrograms per liter.

24

Q.

Which is less than the EPA Goal, as well, is

25

that correct?

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PAGE 76

A.

Yes.

Q.

And did you report that to Dr. Williams?

A.

Yes.

Q.

Now, have you heard any government officials

say publically that the water that people drink in

Raleigh has as much hexavalent chromium in it as in these

wells?

MR. ROSSER:

Object to form.

THE WITNESS:

Yes, I think so.

10

BY MR. HOLLEMAN:

11

Q.

And who said that?

12

A.

Tom Reeder.

13

Q.

Okay.

14

Let me hand you this, if we can mark

this as an Exhibit, please.

15

(PLAINTIFF-INTEVENOR EXHIBIT 283

16

WAS MARKED FOR IDENTIFICATION.)

17

And I am showing you what is Exhibit 283,

18

which, as you can see on the cover, is the City of

19

Raleigh 2014 Consumer Confidence Report.

20

the Raleigh Public Water System data in connection with

21

the study for the "do drink" letter?

22

Did you review

(Witness peruses document.)

23

A.

No, not for the "do drink" letter.

24

Q.

All right.

25

A.

Yes.

Did you ever review it?

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PAGE 77

Q.

And when did you review it?

A.

After Mr. Reeder and I presented to the

Legislative Committee.

Q.

And what did you discover?

A.

That most Raleigh city water hexavalent

chromium levels were, for the most part, mostly below

.07, and there were some that -- I looked at several

years.

there was no vanadium detected.

10
11

There were some that were a little above it.

Q.

And

So did your review indicate to you that what

Mr. Reeder said was not true?

12

MR. BARKLEY:

Objection.

13

THE WITNESS:

Yes.

14

BY MR. HOLLEMAN:

15

Q.

Did you ever tell him that?

16

A.

No, not Mr. Reeder.

17

Q.

Did you tell Dr. Williams that?

18

A.

Yes.

19

Q.

And what did Dr. Williams say?

20

A.

I don't remember.

21

Q.

Did he communicate it to Mr. Reeder?

22

A.

I don't know.

23

Q.

Do you know if Mr. Reeder ever looked at the

24
25

actual data for the city of Raleigh?


MS. LeVEAUX:

Objection.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 77 of 186

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PAGE 78

VOICE:

Objection.

THE WITNESS:

I don't.

BY MR. HOLLEMAN:

Q.

And did you look at the reports for other

major public water systems in the state of North

Carolina?

7
8
9

A.
other.

I looked at the reports for Charlotte and one

And I think it was Fayetteville, but I am not --Q.

And what did you learn when you looked at the

10

Charlotte one?

11

A.

12

The hexavalent chromium levels were mostly

below our screening level; some were above it.

13

Q.

But they were not large numbers, is that

14

correct?

They were close to your screening levels?

15

A.

Yes.

16

Q.

I am sorry.

This has been marked as an

17

exhibit before in Dr. Shehee's deposition as Exhibit 282.

18

I just want to see if you can tell us what that is, if

19

you know?

20

(Witness peruses document.)

21

A.

I actually haven't seen this before.

22

Q.

Okay.

23

All right, thank you.

If you could

just give it back to the court reporter.

24

(Pause.)

25

Could I see that again?

It has got a second

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page to it.

A.

minutes.

Yes.

And I am going to need a break in a few

MR. HOLLEMAN:

Why don't we just take a break

MR. HOLLEMAN:

OFF THE RECORD.

(A BRIEF RECESS WAS TAKEN.)

MR. HOLLEMAN:

BY MR. HOLLEMAN:

10
11

now.

Q.

ON THER RECORD.

10:43 A.M.

10:53 A.M.

Have there been any -- are there any plans to

change the vanadium Health Screening Level from the 0.3?

12

A.

No.

13

Q.

And just to make sure I ask this, because I

14

got caught up in my train of thought, at the June meeting

15

-- in-person meeting with Duke, did Duke make any

16

requests of HHS or DEQ?

17

A.

18

request.

19

Q.

20

I don't remember a request -- specific

What about on the phone call that occurred

before?

21

A.

I don't remember.

22

Q.

Are you aware, otherwise, of Duke making any

23

requests of HHS?

24

A.

No.

25

Q.

Have you been told not to talk to the press?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 79 of 186

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A.

No.

Q.

Are you aware if anyone else at HHS has been

told not to talk to the press?

A.

No.

Q.

Do you know how many people got the "do drink"

letter?

A.

I don't remember the number.

Q.

But you all have that chart in HHS of who got

10

A.

Yes.

11

Q.

And are you all planning to send any more "do

12

it?

drink" letters out?

13

A.

No.

14

Q.

Let's introduce this.

15

I want to show you two

more examples of the "do not drink" advisory from June.

16

(PLAINTIFF-INTEVENOR EXHIBIT 284

17

WAS MARKED FOR IDENTIFICATION.)

18

Let me show you what has been marked as 284,

19

and ask you is that another example of one of the "do not

20

drink" advisories?

21
22

(Witness peruses document.)


A.

Yes.

23

(Witness peruses document.)

24

Okay.

25

(PLAINTIFF-INTEVENOR EXHIBIT 285

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WAS MARKED FOR IDENTIFICATION.)

Q.

And I will show you what has been marked

Exhibit 285, and ask you if that is another example of

one of the "do not drink" advisories?

A.

Yes.

Q.

That Exhibit 282 which I showed you and you

were not familiar with -- as I understand it, you don't

know this document.

that says "Next Steps - OEEB recommends a drinking water

It refers -- there is a second page

10

standard for Chrome 6 of 0.2 parts per billion.

11

represents a one in one hundred thousand lifetime cancer

12

risk."

13

in HHS or in your section?

14
15
16
17

This

Are you familiar with any discussion about that

A.

Only in reference to the California Health

Q.

But you don't remember any talk about changing

Goal.

the .07 to .2 for a health screening level?

18

A.

No.

19

Q.

And when this says "a drinking water

20

standard," is that the same as a Health Screening Level,

21

or is that something different -- if you know?

22

know you have never seen this.

23

section, do those mean the same thing?

24
25

A.

I mean, I

But in your department or

In DHHS, we have been in the habit of using

those terms interchangeably.

However, through this

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 81 of 186

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5/4/16

PAGE 82

experience in working with DEQ, we have been -- we have

learned that a standard is a level that is promulgated

through a very specific process.

consciously trying to use that term carefully to reflect

only those published standards.

Q.

And so we are

So would it be correct to say that, other than

the fact that California has -- now, California's Goal is

.02, is that correct?

A.

That is correct.

10

MS. LeVEAUX:

Objection.

11

THE WITNESS:

That is correct.

12

BY MR. HOLLEMAN:

13

Q.

Not 0.2?

This refers to 0.2.

14

MS. LeVEAUX:

Same objection.

15

THE WITNESS:

Yes.

16

BY MR. HOLLEMAN:

17
18

Q.

So you really just don't know what that is

talking about, is that a correct statement?

19

A.

I don't.

20

Q.

Are you aware of anyone at DEQ or HHS who has

21

received anything of value from Duke Energy?

22

A.

No.

23

Q.

Going on a trip with them or play golf with

24
25

them or anything like that?


A.

No.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 82 of 186

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Q.

5/4/16

PAGE 83

When you all did the analysis -- or when you

reviewed the analysis and reached the conclusion of 0.07

for hexavalent chromium, did you all communicate with the

United States -- that is, the federal Center for Disease

Control, CDC?

A.

Yes.

Q.

And what was that communication?

A.

It was a consultation with CDC-ATSDR on -- to

9
10
11
12

verify that we were using the correct Cancer Slope Factor


in the calculation.
Q.

And is the Cancer Slope Factor a critical part

of the calculation?

13

A.

Yes.

14

Q.

And what was CDC's response?

15

A.

They agreed that was the correct factor.

16

Q.

Now, Dr. Davies, do you feel bad about HHS

17

having sent out those "do drink" letters with DEQ?

18

MR. ROBBINS:

Objection.

19

MS. LeVEAUX:

Objection.

20

MR. ROSSER:

Objection to form.

21

THE WITNESS:

I feel conflicted.

22

MR. HOLLEMAN:

No further questions.

23

MR. ROSSER:

I am sorry, I didn't get that

THE WITNESS:

Conflicted.

24
25

last part.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 83 of 186

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5/4/16

PAGE 84

MR. ROSSER:

Thank you.

MR. HOLLEMAN:

I don't have anything else.

MR. ROSSER:

Can we take two minutes and we

switch sides?

MR. ROSSER:

(A BRIEF RECESS WAS TAKEN.)

MR. ROSSER:

ON THE RECORD.

11:06 A.M.

D I R E C T

E X A M I N A T I O N

11:06 A.M.

BY MR. ROSSER:

10

OFF THE RECORD.

11:03 A.M.

Q.

Dr. Davies, I am Brent Rosser.

12

A.

Yes.

13

Q.

I am with the law firm of Hunton & Williams,

11

We met earlier

today.

14

on behalf of Duke Energy.

15

I have got some questions to ask you.

16

me about your areas of expertise -- your background,

17

including your educational background.

18

A.

Thank you for your time today.

I am a physician.

First of all, tell

I attended University of

19

North Carolina Chapel Hill School of Medicine, graduated

20

from UNC School of Medicine, and I did a residency in

21

Family Practice.

22

few years, I did a fellowship at the Centers for Disease

23

Control and Prevention in epidemiology, and I have

24

practiced as an epidemiologist since.

25

Q.

After practicing family medicine for a

And how long did you practice family medicine?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 84 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 85

A.

Four years after residency.

Q.

How long have you been an epidemiologist?

A.

My fellowship was from 1998 to 2000, and I

4
5
6

have been practicing since then.


Q.

So 16 years.

Do you have any expertise in setting standards

under the Federal Safe Water Drinking Act?

A.

No.

Q.

What about do you have any expertise in

9
10

developing Maximum Contaminant Levels under the Federal


Safe Water Drinking Act?

11

A.

No.

12

Q.

What about -- do you have any expertise in

13

setting National Primary Drinking Water Standards?

14

A.

No.

15

Q.

Do you have any expertise in setting State

16
17

Groundwater Standards?
A.

No.

18

(DEFENDANT EXHIBIT 286 WAS

19

MARKED FOR IDENTIFICATION.)

20

Q.

21

document here.

22

Exhibit 286.

I am going to show you a

Are you familiar with this document?

(Witness peruses document.)

23

A.

Yes, I am.

24

Q.

All right.

25

A.

This document is frequently asked questions

What is this?

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PAGE 86

that is on the DEQ website.

Q.

If you could just take a look at the first

page, at the bottom there it says, "according to the EPA,

MCL's" -- this is the last paragraph, second sentence --

"MCL's ensure that drinking water poses neither a

short-term nor long-term health risk."

that statement?

A.

Yes.

Q.

And then it goes on to say, "When the EPA

Do you agree with

10

looks at the health risks from drinking water

11

consumption, it calculates the ingested amount as though

12

individuals are drinking two liters of water per day for

13

a 70 year lifetime."

Do you agree with that statement?

14

A.

Yes.

15

Q.

If you could move to the next page, under the

16

question, "What is a Health Risk Evaluation?"

17

that?

Do you see

18

A.

Yes.

19

Q.

The first sentence there states that, "A

20

Health Risk Evaluation is a review by a toxicologist in

21

the North Carolina Department of Health and Human

22

Services to determine levels of risk associated with

23

drinking, bathing and other uses of the water."

24

see that?

25

A.

Do you

Yes.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 86 of 186

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PAGE 87

Q.

Do you agree with that statement?

A.

Yes.

Q.

Are you a toxicologist?

A.

No.

Q.

Do you believe you are qualified to issue a

Health Risk Evaluation?

A.

No.

Q.

The following sentence says that, "In making

this determination of risk, the department relies on

10

available scientific information, including but not

11

limited to, the same information that formed the basis of

12

federal drinking water standards and North Carolina

13

groundwater quality standards."

Do you see that?

14

A.

Yes.

15

Q.

Do you agree with that?

16

A.

Yes.

17

Q.

Okay.

18
19
20
21
22

What qualifies as available scientific

information?
A.

Generally published scientific papers and peer

review journals.
Q.

What would qualify as unavailable scientific

information?

23

A.

I don't know.

24

Q.

What criteria are applied by DHHS in

25

determining what qualifies as available scientific

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 87 of 186

MEGAN MARIA DAVIES, M.D.


1
2

5/4/16

PAGE 88

information?
A.

I don't -- we don't determine what available

scientific information is.

determine -- we evaluate the quality of scientific

information based on methods and peer review.

6
7
8
9

Q.

That is not our wording.

And just in general, how is that sort of

assessment done?
A.

In the context of the hexavalent chromium and

vanadium, it is done by a toxicologist who has the

10

education and training to assess the quality of the

11

science.

12

Q.

13

We

So that wouldn't be something you would

undertake to do?

14

A.

No.

15

Q.

All right.

It says here that "DHHS relies on

16

the same information that formed the basis of federal

17

drinking water standards."

18

has considered the same information that formed the basis

19

of federal drinking water standards?

20

A.

How does DHHS know that it

I can't answer that comprehensively, but in

21

general, the information that forms the basis of safe

22

drinking water standards is publicly available.

23

Q.

So did DHHS consider that information as part

24

of its evaluation of Screening Levels for hexavalent

25

chromium and vanadium?

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MEGAN MARIA DAVIES, M.D.


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2

A.

5/4/16

PAGE 89

I don't know -- I don't know exactly what the

toxicologist reviewed.

Q.

It also says that the Department considers the

same information that formed the basis for the North

Carolina groundwater quality standards.

question: how do you know that the department considered

the exact same information in considering the groundwater

quality standards?

9
10

A.

Because they calculated it with the

toxicologist in the Division of Waste Management.

11
12

Again, same

Q.

And so you know that they considered the exact

same information?

13

A.

No, I don't know that.

14

Q.

So it says under the next question, the fourth

15

sentence, "At levels of cancer risk greater than

16

one-in-one million, for example, the department

17

recommends you do not drink the water."

Do you see that?

18

A.

Yes.

19

Q.

What is the basis for that standard?

20

A.

It is a standard of practice in Health Risk

21

Evaluation.

22

Q.

And what is that standard of practice based

24

A.

I don't know.

25

Q.

These -- the standard screening levels are

23

upon?

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PAGE 90

based upon, I think you testified earlier, that someone

would drink two liters a day for a lifetime, is that

right -- of water?

A.

Yes, 70 years.

Q.

70 years?

Do you know, just on a percentage

basis, how many people in their life time drink two

liters of water per day?

A.

No.

Q.

On a percentage basis, do you know how many

10

people drink two liters of water per day for 70 years?

11

A.

No.

12

Q.

Would you expect a typical person to drink two

13

liters of water a day for 70 years?

14

A.

I don't know.

15

Q.

The one in a million risk standard is higher

16

than the lifetime odds of death from getting struck by

17

lightning, a lethal dog bite, and a cataclysmic storm;

18

correct?

19

A.

Yes.

20

Q.

And, in fact, if my math is correct, the one

21

in a million standard is over seven times more likely --

22

or I guess you are seven times more likely to get struck

23

by lightning and be killed then to develop cancer under

24

the one in a million standard.

25

A.

Does that sound right?

Approximately, yes.

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PAGE 91

And I looked this up on this National Safety

Council's Risk Perspective Scale.

Apparently, there is a

one in 111,000 chance that a human will die by lethal

execution.

MR. HOLLEMAN:

I have to object.

MS. LeVEAUX:

Objection.

MR. HOLLEMAN:

I do have to object to the

"walking encyclopedia" question.

BY MR. ROSSER:

10

Q.

Assuming that is correct, would you agree

11

that, under that standard, that you are about nine times

12

more likely to be lethally executed than develop cancer

13

under the one in a million standard?

14

MR. HOLLEMAN:

Same objection.

15

MR. ROBBINS:

Objection.

16

THE WITNESS:

Can you repeat the numbers

17

again?

18
19

BY MR. ROSSER:
Q.

Sure.

One in 111,000.

20

MR. HOLLEMAN:

Same objection.

21

MR. ROBBINS:

Objection.

22

THE WITNESS:

Approximately, yes.

23

BY MR. ROSSER:

24
25

Q.

How many Health Risk Evaluations have you been

involved in since your time at the Department?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 91 of 186

MEGAN MARIA DAVIES, M.D.

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A.

exactly.

Q.

Can you guess?

A.

So what do you mean by involved?

Q.

Well how do you define involved?

A.

That I have been specifically consulted about

Q.

That is fine.

A.

I would say a handful.

10

Q.

So less than 10?

11

A.

Yes, probably.

12

Q.

Less than five?

13

A.

Probably more than five.

14

Q.

How many of those have resulted in the

15

I don't know exactly.

PAGE 92
So -- I don't know

that.

issuance of a "do not drink" letter?

16

A.

I don't know.

17

Q.

And so let me ask it this way: do you recall

18

ever in your role at DHHS sending a "do not drink" letter

19

before the letters we are talking about today?

20
21

A.

sending "do not drink" letters before this.

22
23
24
25

I recall being briefed about and agreeing to

Q.

Before this?

And what was the context of

A.

We review testing results from new wells

that?

routinely.

And there have -- I can think of one time

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when lead levels were elevated in some wells.

Q.

These would have been private wells?

A.

Yes.

Q.

And private wells, under North Carolina law,

are required to be tested, is that right?

A.

Yes.

Q.

Are they required to be tested for ---

A.

(Interposing) Let me correct that.

Q.

Sure.

10

A.

They are required to be tested when they are

Q.

When they are new, right.

11

new.

12
13

And so are they

required to be tested for vanadium?

14

A.

No.

15

Q.

What about hexavalent chromium?

16

A.

No.

17

Q.

Do you know why?

18

A.

No.

19

Q.

What is the status of those "do not drink"

20

advisories?

21

A.

I don't know.

22

Q.

Did you follow up with the well owners on

24

A.

My staff always does, but I don't.

25

Q.

Any other instances where you have issued "do

23

that?

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PAGE 94

not drink" letters?

A.

I personally don't issue them, so, no.

Q.

Any other instances that you are aware of "do

4
5

not drink" letters being sent by the Department?


A.

In general, I am aware that when levels exceed

the screening levels being used for new wells, that a

Health Risk Evaluation recommending the water not be used

for drinking or cooking is issued.

9
10

Q.

And is the form you send similar to what we

have looked at today?

11

A.

Yes, it is similar.

12

Q.

Do you recommend to those well owners who

13

receive those "do not drink" letters to conduct

14

re-sampling?

15

A.

In some cases.

16

Q.

Why is that?

17

A.

Usually it is related to -- for instance, lead

18

levels where we re-sample at different places and after

19

letting the water run at different times.

20

sometimes related to -- it is related to discerning where

21

the constituent is entering the water.

22
23
24
25

Q.

So it is

And so why is it important to do more than one

sample in that case?


A.

In the case I am thinking of, it is because

you are trying to determine if the lead is present in the

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MEGAN MARIA DAVIES, M.D.

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PAGE 95

well itself, or whether it is in the pipes running from

the well to the person's house.

3
4
5

Q.

And why, in some cases, do you not recommend

that re-sampling be undertaken?


A.

So this is outside my area of expertise.

And

the decisions are -- on this granular level, are made by

the toxicologists.

8
9

Q.

Well, let me ask you based upon your role at

the Department, why in some cases would the Department

10

issue a "do not drink" letter, but at the same time not

11

recommend that that well water be re-sampled?

12

A.

When we issue the recommendation, we -- it

13

actually comes -- I am sorry.

14

because our procedures changed in the last year or two.

15

So DHHS used to issue them directly, I think.

16

the local health department issues them.

17

is for the well owner to work with the local health

18

department on a remediating the water.

19

point, it is re-sampled.

20

Q.

I need to correct myself,

And now

And the intent

And at that

And so it is resampled -- so you would expect

21

that re-sampling occurred when a "do not drink" letter is

22

received, is that right?

23
24
25

A.

After some remediation efforts -- there is an

attempt to remediate it.


Q.

We recommend re-sampling.

Did you -- when you issued the "do not drink"

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PAGE 96

letters for the hexavalent chromium and vanadium, did you

recommend that the well owners re-sample their wells?

A.

In some cases, yes.

Q.

And why was that?

A.

There -- some wells were tested at

laboratories that couldn't detect hexavalent chromium at

a low enough level, and so we couldn't assess the risk.

8
9
10

Q.

And in cases where you did not recommend that

the well was re-sampled, why was that?


A.

It should have been because the water was

11

tested at a lab with the ability to detect it at the

12

necessary level.

13

(DEFENDANT EXHIBIT 287 WAS

14

MARKED FOR IDENTIFICATION.)

15

Q.

I will show you -- this is Exhibit 287.

16

you would turn to the last page of this exhibit.

17

(Witness peruses document.)

If

18

A.

Go ahead.

19

Q.

This is an e-mail that appears to be sent to

20

you on July 27th, 2015, at 10:46 a.m.

Do you see that?

21

A.

Yes.

22

Q.

Your name is listed as receiving this,

23

correct?

24

A.

Yes.

25

Q.

Do you recall receiving this?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 96 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 97

A.

Not specifically.

Q.

Do you see this appears to be a draft e-mail

from Kelly -- I am sorry, from Alexandra -- excuse my

pronunciation - Lefebvre.

A.

Yes.

Q.

Who is that?

A.

Alexandra Lefebvre is a Press Assistant in the

Office of Communications in the North Carolina Department

of Health and Human Services.

10
11

Q.

And this is in regards to an "Urgent Media

Request," based upon the subject line, is that right?

12

A.

Yes.

13

Q.

And she is asking you to review this draft for

14

any -- well, to determine if it is accurate/appropriate,

15

correct?

16

A.

17

She is asking all of the people, including

myself, on that line to do that, yes.

18

Q.

19

Did you review this draft e-mail?


(Witness peruses document.)

20

A.

I don't remember reviewing it, but I probably

22

Q.

Okay.

23

A.

I generally review things from the

21

24
25

did.

Communication Office marked "Urgent."


Q.

Do you see where the draft e-mail states that

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PAGE 98

"sampling of a well only provides a snapshot of the well

conditions at the time of sampling"?

Do you see that?

A.

Yes.

Q.

Do you agree with that statement?

A.

Yes.

Q.

"Groundwater constantly flows, resulting in

potential changes in the chemical composition of the

groundwater."

Do you see that?

A.

Yes.

10

Q.

Do you agree with that?

11

A.

Yes.

12

Q.

And then it says, "Thus, if the contaminant

13

exceeds levels set by regulation in certain cases, or

14

exceeds Health Protective Levels, DHHS recommends

15

re-sampling to ensure that the contaminant is actually

16

present in the well."

Do you see that?

17

A.

I see that.

18

Q.

Do you agree with that?

19

A.

We can do that sometimes.

20

We do that

sometimes.

21

Q.

Do you agree with the statement?

22

A.

No.

23

Q.

And why don't you agree with that?

24

A.

Because we don't always recommend it.

25

Q.

Do you sometimes recommend it?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 98 of 186

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PAGE 99

A.

Yes.

Q.

To determine if the contaminant is actually

3
4
5

present in the well, correct?


A.

To determine the level at which the

contaminant is present.

Q.

Correct?

A.

Yes.

Q.

Have you ever authored any studies dealing

with hexavalent chromium?

10

A.

No.

11

Q.

Have you ever authored any studies dealing

12

with vanadium?

13

A.

No.

14

Q.

Have you ever reviewed any studies dealing

15

with hexavalent chromium?

16

A.

Yes.

17

Q.

What studies?

18

A.

I can't remember.

19

titles.

I can -- I don't know the

I read some papers.

20

Q.

And who were those papers authored by?

21

A.

I don't remember.

22

Q.

Can you tell me if they were authored by a

23
24
25

government agency?
A.

I read some of the material from EPA.

read some academic papers.

I also

And I don't know the

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 99 of 186

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PAGE 100

affiliation -- I don't remember the affiliation of the

authors.

Q.

And how many of these studies have you

reviewed?

A.

I would say fewer than five.

Q.

When did you review these studies?

A.

Sometime between January 2015 and June, July

Q.

Have you reviewed any studies since June or

8
9
10

2015.

July of 2015?

11

A.

I don't think so.

12

Q.

Before January of 2015, have you ever -- had

13

you ever reviewed any studies dealing with hexavalent

14

chromium?

15

A.

No.

16

Q.

Are you doing any ongoing studies -- you,

17

yourself -- on hexavalent chromium?

18

A.

No.

19

Q.

Have you ever authored any studies on

20

vanadium?

21

A.

No.

22

Q.

Have you ever reviewed any studies on

23

vanadium?

24

A.

Yes.

25

Q.

And when -- how many studies have you

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 100 of 186

MEGAN MARIA DAVIES, M.D.


1

5/4/16

PAGE 101

reviewed?

A.

I definitely read one.

Q.

Who authored those studies?

A.

I don't know.

Q.

Were those studies by any government agency?

A.

I don't remember.

Q.

And when were those reviewed?

A.

The same time frame.

Q.

So between January 2015 and June 2015?

10

A.

Yes.

11

Q.

Before January 2015, had you ever reviewed any

12

I might have read two.

studies about vanadium?

13

A.

No.

14

Q.

Since June of 2015, have you reviewed any

15

studies dealing with vanadium?

16

A.

No.

17

Q.

And I assume you are not -- you, yourself,

18

aren't conducting any studies related to vanadium?

19

A.

No.

20

Q.

And have never done so?

21

A.

Correct.

22

Q.

And have never conducted any studies related

23
24
25

to hexavalent chromium -- you, yourself?


A.

Correct.
(DEFENDANT EXHIBIT 288 WAS

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 101 of 186

MEGAN MARIA DAVIES, M.D.


1

5/4/16

MARKED FOR IDENTIFICATION.)

MR. ROSSER:

This is 287?

REPORTER:

288.

BY MR. ROSSER:

5
6

PAGE 102

Q.

288.

Dr. Davies, are you familiar with what

has been marked as Exhibit 288?

(Witness peruses document.)

A.

Yes.

Q.

What is this document?

10

A.

It is the Interim Report on the study of

11

Standards and Health Screening Levels for hexavalent

12

chromium and vanadium.

13

Q.

And this report refers to an Interdepartmental

14

Work Group to conduct the study required by Section 4.8A.

15

Are you familiar with that Interdepartmental Work Group?

16

A.

Where does it say that?

17

Q.

On the last page, first sentence of the last

18

paragraph.

19
20
21

(Witness peruses document.)


A.

So you are asking if I am familiar with the

Work Group?

22

Q.

Correct.

23

A.

I am familiar with the statement that there

24
25

would be one.
Q.

Are you familiar with the Work Group?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 102 of 186

MEGAN MARIA DAVIES, M.D.

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PAGE 103

A.

I don't think the Work Group ever formed.

Q.

And why is that?

A.

DEQ was the lead agency.

And after

communicating our availability to participate in the Work

Group, we didn't receive invitations to meet.

6
7
8
9

Q.

When you say DEQ was the lead agency, what do

you mean by that?


A.

My understanding is that the -- was it a

Special Provision that ---

10

(Witness peruses document.)

11

"Section 4.8A of S.L. 2015-286 directed the

12

North Carolina Department of Environment and Natural

13

Resources name change by 2015 legislation to North

14

Carolina Department of Environmental Quality (DEQ) in

15

conjunction with the Department of Health and Human

16

Services to study the States Groundwater Standards under

17

15A NCAC 2L or state interim allowable maximum

18

contaminant levels (IMAC) as applicable, as well as state

19

Health Screening Levels for hexavalent chromium and

20

vanadium" -- this is a long sentence -- relative to

21

other southeastern state standards for these contaminants

22

and the federal maximum contaminate levels (MCL's) for

23

these contaminants under the Safe Drinking Water Act, in

24

order to identify appropriate standards to protect public

25

heath, safety and welfare."

I am going to stop at the

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 103 of 186

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1

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PAGE 104

semicolon.

So our understanding was DEQ was directed to

do this in conjunction.

And so we understood DEQ to be

the lead agency -- the one with the responsibility to

provide the report.

(DEFENDANT EXHIBIT 289 WAS

MARKED FOR IDENTIFICATION.)

8
9
10

Q.

This is 289.

Dr. Davies, are you familiar

with the document in front of you that has been marked


Exhibit 289?

11

(Witness peruses document.)

12

A.

Yes.

13

Q.

Have you reviewed this document before?

14

A.

Yes.

15

Q.

The first sentence there reads that, "The

16

current maximum contaminant level for chromium in all

17

forms in drinking water is 100 parts per billion, which

18

includes chromium-6."

Do you see that there?

19

A.

Yes.

20

Q.

Do you agree with that statement?

21

A.

Yes.

22

Q.

And it says under the question, "Why doesn't

23

EPA regulate chromium-6?"

And the answer there given is,

24

"EPA does regulate chromium-6 (or hexavalent chromium) as

25

part of the total chromium drinking water standards since

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 104 of 186

MEGAN MARIA DAVIES, M.D.


1

1992."

5/4/16

PAGE 105

Do you agree with that statement?

A.

No.

Q.

Why not?

A.

Because total chromium is composed of

hexavalent chromium and trivalent chromium.

amount regulated is not just chromium-6.

Q.

So the total

Then it says, "The current drinking water

standard sets the maximum level of total chromium allowed

in drinking water, and this standard addresses all forms

10

of chromium, including chromium-6."

11

there?

Do you see that

12

A.

Yes.

13

Q.

Do you agree with that?

14

A.

Yes.

15

Q.

And then the next sentence says, "Since

16

current testing does not distinguish what percentage of

17

the total chromium is chromium-6 versus chromium-3, EPA's

18

regulation assumes that the sample is 100 percent

19

chromium-6."

Do you see that there?

20

A.

Yes.

21

Q.

Do you agree with that?

22

A.

If the EPA states that, I don't disagree with

Q.

What role do background levels play in setting

23
24
25

it.

Health Screening Standards?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 105 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

A.

Could you clarify the question?

Q.

Sure.

PAGE 106

When you are evaluating -- I know you

are not -- you don't have the expertise to actually set

screening levels, correct?

A.

Correct.

Q.

But what -- to your knowledge, how do

background levels of constituents play into setting

Health Screening Levels, if at all?

A.

So for Health Screening Levels, they -- it

10

doesn't matter whether the constituents are there in the

11

background or if it was introduced in some other way.

12

Q.

So as part of its setting screening levels for

13

the various -- for chromium-6 and vanadium, there has

14

been no assessment by your department as to whether or

15

not Duke's various impoundments have impacted

16

groundwater, correct?

17

A.

Correct.

18

Q.

How were -- let's start with hexavalent

19

chromium.

20

developed?

21
22

A.

So how were these Screening Levels of .07

They were developed in accordance with the

North Carolina Administrative Code -- the 2L Rule.

23

Q.

And are you familiar with that 2L Rule?

24

A.

I have read it.

25

Q.

And you, yourself, did not perform the

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1

5/4/16

PAGE 107

calculation, correct?

A.

No.

Q.

Who did that?

A.

The toxicologists at DEQ and the toxicologists

at DHHS.

Q.

7
8

Okay.

What were the names of the folks at DEQ

who performed that calculation?


A.

Hanna Assefa and Dave Lilley -- David Lilley.

(DEFENDANT EXHIBIT 290 WAS

10
11

MARKED FOR IDENTIFICATION.)


Q.

This is 290.

Dr. Davies, this is a series of

12

e-mails that has been marked Exhibit 290.

13

is the author of the first e-mail in the chain.

14

the Ms. Assefa that you were referring to earlier?

15

Hanna Assefa
Is that

(Witness peruses document.)

16

A.

Yes.

17

Q.

And she is with the North Carolina Division of

18

Waste Management, is that right?

19

A.

I believe so.

20

Q.

Is David Lilley also with the North Carolina

21

Division of Waste Management?

22

A.

I believe so.

23

Q.

Who asked them to, if you know, perform this

24
25

particular calculation?
A.

I don't know.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 107 of 186

MEGAN MARIA DAVIES, M.D.


1
2

Q.

5/4/16

PAGE 108

It references the use of the California EPA

Slope Factor for ingestion.

Do you see that?

A.

Yes.

Q.

Are you familiar with that Slope Factor?

A.

No.

Q.

Do you know how that Slope Factor was reached?

A.

No.

Q.

Do you know what studies went out into the use

of that Slope Factor?

10

A.

No.

11

Q.

Do you know if that Slope Factor is reliable?

12

A.

We -- I believe it is reliable, because we

13

consulted CDC-ATSDR and they confirmed that was the

14

correct Slope Factor to use.

15

Q.

Who at the CDC did you talk to?

16

A.

I did not talk to them.

I believe it was an

17

e-mail communication between one of our toxicologists and

18

a toxicologist at CDC-ATSDR.

19

Q.

Who was the toxicologist ---

20

A.

(Interposing) I don't know.

21

Q.

--- at -- I am sorry?

22

A.

I don't know the name.

23

Q.

At DHHS?

24

A.

I think it was Sandy Mort.

25

Q.

Sandy -- I am sorry?

Oh, sorry.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 108 of 186

MEGAN MARIA DAVIES, M.D.

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PAGE 109

A.

Mort, M-O-R-T.

Q.

Was this -- have you seen this e-mail

communication from the CDC?

A.

Yes, I saw it.

Q.

What did it say?

A.

I don't remember.

Q.

Did you see the e-mail communication, I guess,

8
9
10
11
12

from Sandy to the CDC?


A.

I don't remember exactly.

I think I saw the

-- the e-mail chain.


Q.

Has the Department used the California EPA

Slope Factor for other screening levels?

13

A.

I don't know.

14

Q.

Have other -- I am sorry.

Have other states

15

used the California EPA Slope Factor for setting Health

16

Screening Levels?

17

A.

I don't know.

18

Q.

Did you consult with any other states?

19

A.

No.

20

Q.

Did you consult with EPA?

21

A.

No.

22

Q.

Did you contact the California EPA?

23

A.

I did not.

24

Q.

Did anybody in your department?

25

A.

I don't know.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 109 of 186

MEGAN MARIA DAVIES, M.D.

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PAGE 110

Q.

What are Slope Factors?

A.

They are a number that quantifies what the

slope of a graph is.

Q.

How are they derived?

A.

I don't know.

Specific to Cancer Slope

Factors, I don't know how it is derived.

Q.

for ingestion?

A.

I don't know.

10

Q.

Did California follow EPA's methodologies?

11

A.

I don't know.

12

Q.

What are the North Carolina methodologies for

13

How did California develop its Slope Factor

developing Slope Factors?

14

A.

I don't know.

15

Q.

I assume that if I asked you to perform the

16

calculation, you couldn't, sitting here today ---

17

A.

Correct.

18

Q.

--- for screening levels?

19

If you could go

back to the frequently asked questions.

20

(Witness peruses document.)

21

On page 3 -- it is on the bottom last

22

paragraph -- it says, "While North Carolina has a

23

Groundwater Quality Standard of 10 parts per billion that

24

is protective for chromium-6, the Department has

25

developed a Health Screening Level for chromium-6, using

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 110 of 186

MEGAN MARIA DAVIES, M.D.

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PAGE 111

a method consistent with 15A NCAC 02L at 0.07 parts per

billion based on its independent review of current

literature corresponding to a one in a million lifetime

cancer risk level."

Do you see that?

A.

Yes.

Q.

What is the current literature referenced

A.

I don't know.

toxicologists.

there?

10
11

Q.

You would have to ask the

What is the difference between an IMAC and a

Health Screening Level?

12

A.

An IMAC is an interim maximum allowable

13

concentration that is -- applies to groundwater, and is

14

set by the Director of the Division of Water Resources

15

pending completion of the whole process to set a

16

regulatory standard.

17

Q.

If you could turn to the final report, which

18

is what we previously marked.

19

2016.

20
21

MR. HOLLEMAN:

MR. ROSSER:

The final report.

This is the

April 1st, 2016.

24
25

What did you say you were

referring to?

22
23

This is dated April 1st,

MR. HOLLEMAN:
Exhibit.

I don't think that is an

We haven't talked about it.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 111 of 186

MEGAN MARIA DAVIES, M.D.


1

MR. ROSSER:

5/4/16

PAGE 112

Okay.

(DEFENDANT EXHIBIT 291 WAS

MARKED FOR IDENTIFICATION.)

BY MR. ROSSER:

5
6

Q.

291?

Dr. Davies, are you familiar with the

document that has been marked Exhibit 291?

A.

Yes, I recognize it.

Q.

Have you reviewed this before?

A.

I have read through it before.

10

Q.

If you could turn to page 3 at the bottom, it

11

says -- and this is in the third sentence of that

12

paragraph.

13

Levels for vanadium and hexavalent chromium were

14

calculated using methodology and toxicity values selected

15

according to the precedence outlined in an agreement

16

between the Department and DEQ Division of Waste

17

Management for the development of Health Risk Evaluations

18

for private well users."

19

there?

It says, "The Department Health Screening

Do you see that statement

20

A.

Yes.

21

Q.

What methodology is referenced here?

22

A.

The methodology is in some standard operating

23
24
25

procedures at the DEQ Division of Waste Management.


Q.

And who developed those standard operating

procedures?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 112 of 186

MEGAN MARIA DAVIES, M.D.

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PAGE 113

A.

I don't know.

Q.

Are you familiar with them?

A.

I have seen them.

Q.

What do they say?

A.

I haven't read them thoroughly.

Q.

What toxicity values are referenced in this

statement?

A.

I don't know.

Q.

What precedence is referenced in this

10

statement?

11

A.

It is referencing a letter from Dexter

12

Matthews, who was the Director of the Division of Waste

13

Management, written to me as the Epidemiology Section

14

Chief, laying out an agreement for the Division of Waste

15

Management toxicologist and the Division of Public Health

16

toxicologist to work together.

17

2014.

18

Q.

That letter was sent in

So you all had reached an agreement to develop

19

an approach to setting Health Screening Levels, is that

20

right?

21

A.

Yes.

22

Q.

And what was the purpose of that agreement?

23

A.

To attempt to have consistency around levels.

24

Q.

Why was that?

25

A.

We felt it was important to try to be

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 113 of 186

MEGAN MARIA DAVIES, M.D.

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PAGE 114

consistent in order to be able to communicate more

clearly with affected people.

Q.

And when you say "consistency," you mean

consistency in communications both from the Department

HHS and DEQ?

Is that what you mean?

A.

Yes.

Q.

Was that agreement adhered to?

A.

Yes.

(DEFENDANT EXHIBIT 292 WAS

10
11
12

MARKED FOR IDENTIFICATION.)


Q.

292.

Is Exhibit 292 -- is this the letter you

were talking about?

13

A.

Yes.

14

Q.

And I assume you have read this letter, is

15

that right?

16

A.

Yes.

17

Q.

The second paragraph states that,

18

Toxicologists in DENR and the Department have agreed to

19

make recommendations on the private wells by comparing

20

contaminant concentrations found in samples of the

21

private wells to, first, the federal maximum contaminant

22

levels adopted by EPA.

Do you see that?

23

A.

Yes.

24

Q.

What is the federal maximum contaminant level

25

for chromium?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 114 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 115

A.

For total chromium?

Q.

And that standard, you testified earlier,

3
4
5
6
7

100 micrograms per liter.

includes chromium-6, correct?


A.

Total chromium includes chromium-6 and

chromium-3.
Q.

We can put that aside for now.


MR. ROSSER:

It is now noon.

I probably

will take you to 2:30, so if you want to take a break for

a brief lunch, we can do that.

10

If you want to forge

ahead, I am comfortable with that as well.

11

THE WITNESS:

I am okay going ahead.

12

MR. ROSSER:

Do you want to take a break,

13

five minutes then?

14

(THE PROCEEDINGS WERE RECESSED AT 12:04 P.M.

15

TO RECONVENE AT 12:46 P.M. THIS SAME DAY.)

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 115 of 186

MEGAN MARIA DAVIES, M.D.


1

F U R T H E R

D I R E C T

PAGE 116

P R O C E E D I N G S
E X A M I N A T I O N

12:46 P.M.

(RESUMED)

BY MR. ROSSER:

5
6

5/4/16

Q.
279.

Dr. Davies, if I could turn your attention to

It is one of the "Do not drink" letters.

A.

Yeah.

Q.

The constituent that is identified as

9
10

chromium.

I assume that is total chromium there; is that

what that refers to?

11

A.

Yes.

12

Q.

Why is that not listed as chromium 6, then?

13

A.

Because this is the groundwater standard,

14

which is -- which are those levels that have gone through

15

that regulatory process.

16

Q.

Which is listed here as 10 parts per billion,

17

correct?

18

A.

Correct.

19

Q.

You can correct me if I am wrong, but these

20

letters were sent, as I understand it, based upon the

21

screening level set by the Department of .07; is that

22

right?

23

A.

No.

24

Q.

These were sent based upon the groundwater

25

standard of 10 parts per billion?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 116 of 186

MEGAN MARIA DAVIES, M.D.


1

A.

No.

5/4/16

PAGE 117

And I am speaking to something that was

being done at DEQ.

received a set of -- a letter and the results.

this -- it depended on what your levels were what

specific HRE you got and what -- maybe what it said in

this letter.

7
8

Q.

But my understanding is everybody


So

What was this -- this particular letter refers

to the 10 parts per billion, correct?

A.

Yes.

10

Q.

And so was this particular letter sent not on

11
12
13
14
15
16
17
18
19
20
21
22
23

the basis of the screening level?


A.

Everybody got a letter of some sort.

So I

don't know how to answer that.


Q.

So you don't know the basis upon which this

particular letter was sent?


A.

My understanding is everybody got a letter

with their test results and other materials in it.


Q.

And when you say "everybody got a letter," who

are you talking about?


A.

Yes.

People who had their well water tested

under CAMA.
Q.

And so if this result equals -- indicates a

21.8 total chromium standard; right?

24

A.

Yes.

25

Q.

And then there is a -- followed by well water

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 117 of 186

MEGAN MARIA DAVIES, M.D.


1

5/4/16

information and use recommendations.

A.

Yes.

Q.

Okay.

PAGE 118
Do you see that?

And that indicates that the following

substances -- hexavalent chromium and vanadium --

exceeded the screening levels; correct?

A.

Yes.

Q.

But the front page only talks about total

chromium, correct?

A.

Correct.

10

Q.

All right.

If you turn to page 5 of the Pace

11

Analytical report, total chromium is listed as 21.8,

12

correct?

13

A.

Yes.

14

Q.

Which would be consistent with the first page,

15

right ---

16

A.

Yes.

17

Q.

--- of the letter?

18

A.

Yes.

19

Q.

Then if you go down to hexavalent chromium,

20

that is 22.3.

Do you see that?

21

A.

Yes.

22

Q.

Explain to me how you would have a situation

23

where you would have a total chromium parts per billion

24

number that would be less than a chromium 6 number?

25

A.

I don't know how they processed the samples in

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 118 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 119

the lab and ran the tests, but they could have used

different methods that would give you different results.

Q.

If chromium 6 includes -- well, total chromium

includes all of chromium 6 -- you testified to that

earlier today; right?

A.

Yes.

Q.

This wouldn't seem to make sense, would it?

A.

I think there is some variability in lab

results.

10

Q.

Is that what your explanation is?

11

A.

Yeah.

12

Q.

And how do you account for that variability at

13

issue in these letters?

14

A.

That wasn't -- that wasn't addressed.

15

Q.

Why not?

16

A.

We issued the health risk evaluations, which

17

is the only part of this that DHHS did, based on the

18

measured level compared to a preset health screening

19

level.

20

Q.

So I guess -- let me ask it again, because I

21

am not sure I got a clear answer.

22

you, in a lab report, to have a hexavalent chromium parts

23

per billion number higher than a total chromium number?

24

A.

Yeah.

25

Q.

Why does that make ---

Does it make sense to

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 119 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 120

A.

(Interposing)

Q.

--- sense to you?

A.

Because laboratory measurements have

Yeah.

variability in them.

Q.

Have you ever operated a lab?

A.

No.

Q.

Have you ever tested for hexavalent chromium

or ran tests for hexavalent chromium or chromium?

A.

No.

10

Q.

So what variability are you qualified to talk

11
12

about here today?


A.

I am speaking from my experience as a

13

clinician who has reviewed a lot of clinical lab results

14

that often have variability in them.

15

qualified to comment on the methods of water chemistry

16

analysis.

17
18

Q.

But I am not

Have you ever seen a lab report that contains

higher levels of hexavalent chromium than total chromium?

19

A.

Well, right now.

20

Q.

Other than the one before you?

21

A.

No.

22

Q.

Dr. Davies, do you agree that municipal water

23

supplies in North Carolina contain levels of hexavalent

24

chromium in excess of the Department screening level?

25

A.

Yes.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 120 of 186

MEGAN MARIA DAVIES, M.D.


1

Q.

5/4/16

PAGE 121

And what studies did the Department undertake

to evaluate those levels before issuing its screening

levels?

A.

None.

Q.

If we could go back to ---

A.

(Interposing)

Q.

--- the frequently asked questions, page 4.

None that I know of.

And do you see the chart there on page 4?

A.

Yes, I do.

10

Q.

Do you agree that the levels as indicated here

11

in Atlanta are higher than the screening levels set by

12

the Department for chromium 6?

13

A.

Yes.

14

Q.

Do you agree that there have been levels

15

measured in North Carolina that exceed the screening

16

levels for chromium 6 in Charlotte?

17

A.

Yes.

18

Q.

Do you agree that the screening levels for

19

Chicago, Illinois exceed the screening levels -- or, I am

20

sorry, the levels of chromium 6 in Chicago have exceeded

21

the screening levels set by DHHS?

22

A.

Yes.

23

Q.

And in Greensboro, North Carolina, do you also

24

agree that there has been measurements exceeding the

25

chromium 6 levels set by the Department?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 121 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

A.

Yes.

Q.

And in Honolulu, Hawaii, as well?

A.

Yes.

Q.

And Madison, Wisconsin?

A.

Yes.

Q.

And Norman, Oklahoma?

A.

Yes.

Q.

And Raleigh, North Carolina?

A.

Yes.

10

Q.

And Riverside, California?

11

A.

Yes.

12

Q.

293.

PAGE 122

13

(DEFENDANT EXHIBIT 293 WAS

14

MARKED FOR IDENTIFICATION.)

15
16

Dr. Davies, are you familiar with the document


that has been marked Exhibit 293?

17

(Witness peruses document.)

18

A.

No.

19

Q.

If you could turn to page 10 of that document,

20

do you see that chart there?

21

A.

Yes.

22

Q.

Do you see where it says, "California proposed

23

safe limit"?

24

A.

Yes.

25

Q.

All right.

And do you agree that this chart

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 122 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 123

shows that 24 of the 31 cities' tap water exceeded .07

screening level for hexavalent chromium?

A.

You have to be patient while I count.

MR. HOLLEMAN:

What is the Exhibit Number?

REPORTER:

293.

THE WITNESS:

24 exceed .07.

BY MR. ROSSER:

8
9
10

Q.

What is the Department doing to address

hexavalent chromium levels above .07 in public water


supplies?

11

A.

What department?

12

Q.

DHHS.

13

A.

We are not working on public water supplies.

14

Q.

So nothing?

15

A.

Correct.

16

Q.

How many private wells are there in North

17

Carolina?

18

A.

I don't know the number.

19

Q.

Can you approximate?

20

A.

I can approximate it is a lot.

21

Q.

Any more specific than that?

22

A.

No.

23

Q.

What is the Department -- DHHS doing to

24

address hexavalent chromium levels and vanadium levels in

25

private wells throughout the state?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 123 of 186

MEGAN MARIA DAVIES, M.D.


1
2

A.

5/4/16

PAGE 124

We are not doing anything, with the exception

of wells tested under CAMA.

Q.

And why is that?

A.

Actually, I need to restate that.

We are not

doing that except for wells that have been tested for

hexavalent chromium.

not tested for it.

8
9
10

Q.

So most wells -- private wells, are

And so the Department is not doing anything to

address private wells, other than those designated under


CAMA; is that correct?

11

A.

No.

12

Q.

Let me rephrase that.

Other than those

13

designated under CAMA, what is DHHS doing to address

14

hexavalent chromium levels and vanadium levels in private

15

wells in North Carolina?

16

A.

In those cases where a well was tested for

17

hexavalent chromium and brought to the attention of DHHS,

18

we either directly sent an HRE similar to the ones sent

19

for wells tested under CAMA, or the local health

20

department did.

21

Q.

22
23

MR. HOLLEMAN:

(Interposing)

Well, what -- I

am sorry, the answer?

24
25

So I will refer to these as ---

THE WITNESS:

Or the local health department

did.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 124 of 186

MEGAN MARIA DAVIES, M.D.


1
2

5/4/16

PAGE 125

BY MR. ROSSER:
Q.

I will offer these as non-CAMA wells, which

are -- you have testified that there is a lot of these

wells throughout the state.

tested for hexavalent chromium?

How many of those wells are

A.

Very few.

Q.

How many of those wells are tested for

vanadium?

A.

Very few.

10

Q.

And in the few instances those are tested,

11

under what circumstances would that occur?

12

A.

If the well owner specified that -- that

13

testing.

14

Q.

This would be a voluntary test?

15

A.

Yes.

16

Q.

Not one that is required under law?

17

A.

Yes.

18

Q.

And you have testified earlier that new wells

19

do not even test for hexavalent chromium or vanadium,

20

correct?

21

A.

Correct.

22

Q.

So if I have an existing well -- older well

23

that I have already tested, do older wells in North

24

Carolina have to be tested under law for hexavalent

25

chromium or vanadium?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 125 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 126

A.

No.

Q.

Why is that?

A.

I don't know.

Q.

So this .07 -- I just want to understand how

this risk assessment works, because I am clearly not a

toxicologist or epidemiologist.

level .07 is based upon increased risk of one in a

million; correct?

But if I -- so this

A.

Correct.

10

Q.

For lifetime use?

11

A.

Correct.

12

Q.

So if this cup of water in front of me

13

contains .08 parts per billion of chromium 6, if I take

14

one sip of it, have I then increased my chance of getting

15

cancer?

16

A.

It depends.

17

Q.

Okay.

18

A.

On if that sip resulted in a change to your

19
20
21

Depends on what?

DNA that would set in progress progression to cancer.


Q.

Okay.

Assuming it does, would that one sip

increase my risk of getting cancer?

22

A.

If it altered your DNA, yes.

23

Q.

At .08 parts per billion?

24

A.

Yes.

25

Q.

Okay.

Same question for .06?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 126 of 186

MEGAN MARIA DAVIES, M.D.


1

A.

Yes.

Q.

It would?

5/4/16

PAGE 127

It would -- if this contained

hexavalent chromium at a level of .06, but below the

screening level that DHHS set, and it altered my DNA

somehow, that would increase my chance of getting cancer;

is that right ---

A.

Yes.

Q.

--- based upon one sip?

A.

It could.

10

Q.

What about .01?

If I took one sip of this

11

water and it contained .01 parts per billion of

12

hexavalent chromium, and it altered my DNA in some

13

fashion, would that increase my chance of getting cancer?

14

A.

Yes.

15

Q.

Going back to the .08 parts per billion, if

16

this cup of water contains .08 parts per billion of

17

hexavalent chromium, is this water unsafe to drink?

18

one -- just one sip?

19
20

A.

Just

It is above the screening level, and

relatively less safe than a lower level.

21

Q.

Is it unsafe?

22

A.

I don't know.

23

Q.

Why not?

24

A.

Because I don't know whether that cup of water

25

is safe for you to drink or not.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 127 of 186

MEGAN MARIA DAVIES, M.D.


1

Q.

5/4/16

PAGE 128

Well, assuming it has got a .08 parts per

billion level of hexavalent chromium, is this water safe

to drink?

4
5

A.

It does not meet the health risk evaluation

standard.

Q.

Is that a "yes," it would be unsafe to drink?

A.

I am uncomfortable with the words "safe" and

"unsafe."

which, you know, is not a desirable outcome.

10

Q.

You would be at increased risk of cancer,

Okay.

Now let's go to .06, which is below the

11

screening level.

12

water, it will increase my chances of getting cancer,

13

correct?

14

A.

Right.

15

Q.

Is .06 unsafe to drink?

16

A.

A .06 has a risk associated with it of

17

developing cancer.

18

million.

19

Q.

You already told me if I drink this

20
21
22

It is something less than one in a

And so let's go to .01.

Is that water unsafe

to drink?
A.

That drink also has a risk that is less than

one in a million.

23

Q.

But there is still a risk, correct?

24

A.

Correct.

25

Q.

A risk of increased risk of getting cancer,

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 128 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

correct?

A.

Correct.

Q.

Well, let me ask you this.

PAGE 129

What are the

standards for chromium 6 in bottled water?

A.

I don't believe there are any standards.

Q.

What are the standards for total chromium in

bottled water?

A.

I don't believe there are any standards.

Q.

Do the federal drinking water standards apply

10

to bottled water?

11

A.

No.

12

Q.

They do not?

13

A.

I don't think so.

14

Q.

Okay.

So a company is free to put in whatever

15

water it wants to, regardless of the amount of

16

contaminants in bottled water?

17

A.

So I am going by what I have heard Bob

18

Midgette say at DEQ, that -- that bottled water isn't

19

regulated the way public water supplies are.

20

know what regulation bottled water goes -- is under, from

21

FDA or USDA or whomever might regulate that consumer

22

product.

23

Q.

Do you consider it unsafe to drink bottled

A.

Generally, no.

24
25

I don't

water?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 129 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 130

Q.

Do you, yourself, drink bottled water?

A.

Sometimes.

Q.

What is the basis of your view that bottled

water is generally safe to drink?

A.

So I am -- can you clarify that question?

Q.

I asked you if you think bottled water is

safe -- or unsafe, sorry, and you said, "generally, no."

And I am asking for the basis for that opinion.

A.

I haven't seen a lot of outbreaks associated

10

with bottled water.

I haven't seen studies correlating

11

disease to bottled water.

12

Q.

Anything else?

13

A.

No.

14

Q.

How does the .07 screening level for

15

hexavalent chromium compare with other states?

16
17

A.

Most states don't have established health

screening level for hexavalent chromium.

18

Q.

How many states do?

19

A.

I only know of California having a regulatory

20

level and a health goal.

21

Q.

How about the other 48 states?

22

A.

I don't know of them having a health screening

24

Q.

Did you look into that?

25

A.

Yes.

23

level.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 130 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 131

Q.

What was your findings?

A.

That there weren't -- we didn't find any

3
4

others besides California.


Q.

Other than -- I guess you testified that the

CDC was consulted.

Did you consult EPA on the hexavalent

chromium screening level?

A.

I don't know if my staff did.

Q.

What about other states?

A.

I don't think so.

10

Q.

What is the current status of federal

11

regulation of chromium 6?

12

A.

It is being reviewed by the EPA.

13

Q.

Do you have any other information?

14

A.

Not that I can speak to authoritatively.

15

Q.

How were the screening levels developed for

16

vanadium?

17

A.

We used the IMAC as referenced in CAMA.

18

Q.

What is that level?

19

A.

0.3 micrograms per liter.

20

Q.

If you would go back to the "Frequently Asked

21

Questions" document, page 3.

And in the footnote at the

22

bottom says, "An IMAC is based upon the scientific

23

information available at the time of its development, but

24

is not the subject to the rigorous review associated with

25

established groundwater standards.

Do you see that?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 131 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 132

A.

Yes, I do.

Q.

What is the difference -- I mean, talk to me

about the levels of review when compared to setting

groundwater -- let me ask that in a question.

groundwater standards in North Carolina subject to more

rigorous review than an IMAC?

7
8
9
10

A.

This isn't my area of expertise.

How are

I don't

promulgate those kinds of standards.


Q.

You don't have expertise in setting IMAC

standards?

11

A.

That is correct.

12

Q.

So you don't know the answer to my question?

13

A.

I don't know it.

14

Q.

What studies were considered in setting the

15
16
17

screening levels for vanadium?


A.

You would have to ask the toxicologist at

DW -- DWM and DEQ.

18

Q.

You don't know?

19

A.

I don't know.

20

Q.

What studies were rejected in setting levels

21

for vanadium at the Department?

22

A.

I don't know.

23

Q.

There is no federal drinking water outstanding

24
25

for vanadium; is that right?


A.

That is correct.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 132 of 186

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PAGE 133

Q.

Why not?

A.

I don't know.

Q.

Have you looked into that?

A.

No.

Q.

How is the vanadium standard calculated?

A.

I don't know.

Q.

You couldn't perform the calculation?

A.

No.

Q.

How does the .3 parts per billion screening

10

level compare with other states for vanadium?

11

A.

I don't know.

12

Q.

How many other states have screening levels

13
14
15

for vanadium?
A.

I don't know, but I think it is in the report

to the General Assembly.

16

(Witness peruses document.)

17

So the report states that none of the

18

Southeastern states have adopted vanadium criterion

19

regulation.

20

question?

21
22

Q.

I am sorry, was -- can you repeat your


I have lost track of it.

Yes.

How many other states have set screening

levels for vanadium?

23

A.

I don't know.

24

Q.

How many of the states in the Southeast have

25

set screening levels for vanadium?

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 133 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 134

A.

Are you talking about health screening levels?

Q.

Correct.

A.

So I think the answer to that is none have

established health screening levels.

Q.

Do you know why?

A.

No.

Q.

Did you consult with the other states in the

Southeast?

A.

No.

10

Q.

Vanadium appears in vitamins, correct?

11

A.

Yes.

12

Q.

At levels above the DHHS screening level?

13

A.

Yes.

At levels above the IMAC.

14

MR. HOLLEMAN:

I am sorry.

15

THE WITNESS:

I said, "Yes.

16

What did you say?


At levels above

the IMAC."

17

BY MR. ROSSER:

18

Q.

Back to the "Frequently Asked Questions," on

19

page 3, "What is vanadium?"

20

there?

Do you see that question

21

A.

Yes.

22

Q.

It says, "Daily intakes of vanadium from food,

23

ranging from 10 to 20 parts per billion have been

24

reported."

25

A.

Do you see that?


Yes.

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2

Q.

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Do you have any reason to disagree with that

statement?

A.

No.

Q.

Do you agree with that statement?

A.

And then it says, "National average of

vanadium concentrations in tap water are approximately

one part per billion; do you see that?

A.

Yes.

Q.

Do you have any reason to disagree with that?

10

A.

No.

11

Q.

Who was consulted in connection with setting

12
13

the screening level for vanadium?


A.

Division of Public Health leadership and

14

Department of Health and Human Services leadership were

15

consulted in using the IMAC.

16

Q.

Who, specifically?

17

A.

Chris Hoke, in the Division of Public Health,

18

and Danny Staley.

19

Q.

Anyone else?

20

A.

I think that is it for the Division of Public

21

Health.

22

we met with Emory Milliken and discussed it.

23
24
25

Q.

In the Department of Health and Human Services,

I believe you testified Staley is a

toxicologist; is that --A.

(Interposing)

No.

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Q.

He is not?

A.

He is the Director of the Division of Public

Health.

Q.

Is Mr. Hoke a toxicologist?

A.

No.

Q.

What about Mr. -- is it Mr. Milliken or Ms.?

A.

Emory Milliken, it is a female.

He is a lawyer.

She is

general counsel to the Department of Health and Human

Services.

10

Q.

And anyone else?

11

A.

We had several discussions with leadership of

12

the Department of Health and Human Services, including

13

Dr. Aldona Wos, who was then the Secretary, Matt McKillip

14

(phonetic).

15

other people, but those are the ones I remember for sure.

16

Those are -- there -- there probably were

Q.

What about EPA?

18

A.

No.

19

Q.

What about other states?

20

A.

No.

21

Q.

What about CDC?

22

A.

No.

23

Q.

If you could go to the April 1st, 2016 report.

24

A.

Okay.

25

Q.

Have you seen this -- well, I asked you that,

17

Did you consult with them at

all?

Oh, okay.

That is fine.

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but have you read this document before?

A.

I have read through it.

Q.

At the bottom of page 6 -- this is under the

heading, "Survey of Other States' Criteria" -- do you see

that?

A.

Yes.

Q.

It says, "None of the Southeastern States have

adopted vanadium criteria in regulation.

You -- I

believe you testified to that earlier; correct?

10

A.

Yes.

11

Q.

Then it goes on to say, "North Carolina's IMAC

12

was established at the request of DEQ in 2010."

Is that

13

the Department -- what does "DWM" stand for there?

14

A.

On page 7?

15

Q.

We are on still page 6.

16

A.

Oh, Division of Waste Management.

17

Q.

Then it says, "This IMAC of .3 parts per

18

billion could be revised on the basis of published and

19

peer-reviewed toxicity information that has become

20

available since 2010"; do you see that?

21

A.

Yes.

22

Q.

Do you agree with that statement?

23

A.

Yes.

24

Q.

And tell me -- explain to me why you agree

25

with that.

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Because the toxicologists in OEEB --

Occupational Environmental Epidemiology Branch --

calculated a health screening level -- you know, the IMAC

could be revised because that is allowed for in the

process.

Sorry.

7
8

Q.

Does -- that answers your actual question.

And what peer-reviewed toxicity information is

referenced there?

A.

Referenced here in this document?

10

Q.

Right.

11

(Witness peruses document.)

12

A.

I don't see the reference.

13

Q.

All right.

14

what peer-reviewed information is referenced there?

15
16

Do you know, sitting here today,

A.

I don't know what peer-reviewed information is

referenced in this report.

17

Q.

And then it says that, As a function of this

18

report, staff have reviewed the newly available toxicity

19

information for vanadium and can currently recommend a

20

revised criterion of 20 parts per billion; do you see

21

that?

22

A.

Yes.

23

Q.

And is that the position of HHS?

24

A.

No.

25

Q.

What is the position of HHS?

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A.

being revised.

Q.

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PAGE 139

I don't think HHS has a position on the IMAC

So you are saying you don't agree with it, but

you don't disagree with it?

MR. HOLLEMAN:

Object to the form.

MR. ROBBINS:

Objection.

MS. LeVEAUX:

Objection.

THE WITNESS:

Yeah.

BY MR. ROSSER:

10

Q.

That you are not taking a position?

11

A.

Yes.

12

MR. HOLLEMAN:

Object to the form.

13

MR. ROBBINS:

Objection.

14

MS. LeVEAUX:

Objection.

15

BY MR. ROSSER:

16

Q.

And why aren't you taking a position?

17

MR. HOLLEMAN:

Object to the form.

18

MR. ROBBINS:

Objection.

19

THE WITNESS:

Because you are asking about

20

the establishment of an IMAC by DEQ.

21

role I am engaged in.

22
23

And that is not a

BY MR. ROSSER:
Q.

Do you agree that municipal water supplies in

24

North Carolina contain levels of vanadium in excess of

25

the DHHS screening level of .3 parts per billion?

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I agree that there are municipal water

supplies that contain vanadium in excess of .3 micrograms

per liter, or parts per billion.

4
5
6

Q.

What was your involvement in issuing the "Do

not drink" letters?


A.

I was part of the Public Health Team that

consulted or discussed with the Department appropriate

action for wells that had a level above the screening

levels.

10
11

Q.

And did you have any involvement in actually

drafting the letters?

12

A.

In the Health Risk Evaluation form?

13

Q.

In the -- that were sent to the well owners?

14

A.

So I have a role in drafting the health risk

15

evaluation form that was sent to the owner, but not the

16

cover letter.

17

recommendations for inorganic chemical contaminants is

18

the document I had a role in.

19
20

Q.

So the well water information and use

That would be the document that has the title,

"Well Water Information and Use Recommendations"?

21

A.

Yes.

22

Q.

You drafted this?

23

A.

I reviewed drafts of it and had input.

24

Q.

And it references, "inorganic chemical

25

contaminants."

What does "inorganic" mean?

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A.

Means it is not a carbon-based.

Q.

It is carbon -- so, okay.

So this is going to

show my ignorance, but -- so if both hexavalent chromium

and vanadium are naturally occurring, could they -- could

that be considered an organic chemical?

A.

Not in chemical terms, no.

Q.

Why is that?

A.

Because organic chemistry, all the chemicals

9
10
11
12

are carbon-based -- or they have a carbon in their


structure.
Q.

Are hexavalent chromium -- I don't know this

-- are they carbon-based?

13

A.

No.

14

Q.

Is vanadium carbon-based?

15

A.

No.

16

Q.

But they still are naturally occurring ---

17

A.

Yeah.

18

Q.

--- in soils, et cetera?

19

A.

Yes.

20

Q.

The letters were sent, it appears to be, based

21

upon a single sample; is that accurate?

22

A.

For the most part, yes.

23

Q.

You say for the most part.

24
25

Some were based on

multiple samples?
A.

Some wells were resampled because a lab was

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used that didn't have sufficient sensitivity in their

method to detect levels low enough.

Q.

And I am looking at what has been marked as

284, 285, and 279.

The results for total chromium on

these documents indicate 21.8, 22.1, and 17.1?

A.

Yes.

Q.

For purposes of the federal drinking water

standards, would those levels comply with the standard

for total chromium?

10

A.

That -- those levels do not exceed the minimum

11

contaminant level -- or maximum contaminant level -- the

12

MCL of the -- under the Safe Drinking Water Act.

13

Q.

So that would comply with those standards?

14

A.

Correct.

15

Q.

If you had a result of 99 for hexavalent

16

chromium -- parts per billion -- would that comply with

17

the standard for total chromium under the federal Clean

18

Water Drinking Act?

19

A.

The -- my understanding is it is two different

20

things.

21

Safe Drinking Water Act, because there is no standard for

22

hexavalent chromium.

23

Q.

So it would not be out of compliance with the

Let's turn back to the April 1, 2016 report.

24

If you could turn to page 11, there is a series of

25

recommendations.

Do you see those?

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A.

Yes.

Q.

It says that DHHS should include improved risk

communication plan for its health risk evaluations.

you see that?

Do

A.

Yes.

Q.

Does DHHS plan to follow that recommendation?

A.

I don't think we have a specific plan.

Q.

Let me ask my question again.

9
10
11
12

Is DHHS

planning to follow this recommendation?


A.

Of an improved risk communication plan?

don't know.
Q.

And then it says, "DHHS recommendations for

13

public and private water well use should be uniformly

14

based upon federal MCLs established by the Safe Drinking

15

Water Act."

Do you see that there?

16

A.

I do.

17

Q.

Is DHHS planning to follow that

18

recommendation?

19

A.

I don't know.

20

Q.

And why don't you know?

21

A.

Because I haven't been part of any of those

22

conversations.

23

Q.

Are those conversations happening?

24

A.

I don't know.

25

Q.

Would you expect to be involved in those

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communications?

A.

As state epidemiologist, I would expect to be.

Q.

Have you done anything in response to these

recommendations?

A.

That is the only DHHS one.

Q.

Are you planning to do anything in response to

I don't think so.

the recommendations?

A.

I don't know what the Agency is planning to

Q.

When you say "the Agency," who are you talking

12

A.

DHHS.

13

Q.

You don't know what they are planning to do?

14

A.

Correct.

15

Q.

Have you talked to anyone about these

do.

10
11

16

about?

recommendations?

17

A.

When they first came out, we were -- I was

18

asked to -- well, before they -- I was asked to review

19

them.

20

about how we would respond to them.

21
22

But we -- I don't remember having a conversation

Q.

So you had an opportunity to review this

before it was submitted to the legislation, right?

23

A.

I had an opportunity.

24

Q.

Okay.

25

Did you have any specific comments on

recommendation number one?

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A.

I did not have any specific comments.

Q.

And this report was submitted pursuant to

session law -- I am looking at the cover letter here --

2015-286?

A.

Yes.

Q.

In conjunction with the Department of Health

and Human Services, correct?

A.

That is the wording of the session law.

Q.

294.

10

(DEFENDANT EXHIBIT 294 WAS

11

MARKED FOR IDENTIFICATION.)

12

Dr. Davies, have you see Exhibit 294 before?

13

(Witness peruses document.)

14

A.

Yes, I have.

15

Q.

And what is this you are looking at?

16

A.

It is a document with a title, "Well Owners in

17

Disbelief about State's Decision to Lift Tainted Water

18

Warning."

19
20

Q.

And did you read this article around the time

it was published?

21

A.

Yes.

22

Q.

And if you would turn to page -- this was

23

published, according to this, on March 19th of 2016,

24

correct?

25

A.

That is what is on the paper.

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If you would look at page 5 of 6, at the

bottom, it refers to spokeswoman Alexandra Lefebvre as

the DHHS spokesman, correct?

A.

Yes.

Q.

She speaks on behalf of DHHS?

A.

Yes, she does.

Q.

And she says that, "It is important to

understand that it was not one person who created the

original levels for usage recommendation, nor was it one

10

person who decided to update the recommendations."

11

you see that?

12

A.

Yes.

13

Q.

Do you agree with that statement?

14

A.

Yes.

15

Q.

And then she says, "This was a Department

16

Decision made after consulting with multiple experts

17

across two agencies."

Do

Do you see that?

18

A.

Yes.

19

Q.

Do you agree with that ---

20

A.

Yes.

21

Q.

--- statement?

22

And then there is a reference

to a Nancy Holt?

23

A.

Yes.

24

Q.

Do you know Ms. Holt?

25

A.

I do not.

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She says at the bottom here, that, "None of

the people (staff) in DHHS had anything to do with the

change."

A.

No.

Q.

Ms Holt said, according to this article, that

Do you agree with that statement?

DHHS staff members she talked to last week are upset

because they were not consulted, although Holt declined

to provide any names.

your staff talking to Ms. Holt?

10

A.

Are you aware of any members of

I am not.

11

(DEFENDANT EXHIBIT 295 WAS

12

MARKED FOR IDENTIFICATION.)

13
14

Dr. Davies, do you recognize what has been


marked as Exhibit 295?

15

A.

Yes, I do.

16

Q.

In the -- Ms. Shehee -- I am sorry, Dr.

17

Shehees e-mail to you on August 21st, 2015, at 6:49

18

a.m., she states that you had mentioned last night about

19

looking into the possible health effects associated with

20

coal ash ponds.

21

with Dr. Davies [sic] -- or Dr. Shehee?

Do you remember having that conversation

22

A.

I do.

23

Q.

What did you say during that conversation?

24

A.

I don't remember all the details, but I was

25

reviewing with her requests from Secretary Brajer to look

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at any health effects that might have -- to look to see

if we could see any health outcomes in the populations in

the area of the coal ash ponds.

4
5

Q.

And who had made that -- or who had made that

request; I am sorry?

A.

Secretary of DHHS, Rick Brajer.

Q.

And that request was made directly to you?

A.

Yes.

Q.

When was that request made?

10

A.

In a meeting, probably -- based on how I

11

normally operate, I called her Thursday, the 20th, to

12

discuss this, I probably -- that is probably when I met

13

with the Secretary.

14

not absolutely certain about that, though.

15

Earlier that day, probably.

I am

Q.

And how did the Secretary's request come to

17

A.

In the course of the meeting.

18

Q.

And what exactly did he say to you?

19

A.

So it is not -- it can't possibly be a direct

16

you?

20

quote, since this -- we are talking about August 2015.

21

In essence, he asks us to look to see if we saw any

22

adverse health outcomes in people living around or near

23

coal ash ponds that would be anticipated, based on the

24

risks identified in the toxicologic literature.

25

Q.

And what was your response to the request?

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I indicated that there were severe limitations

to attempting to characterize relationship between health

outcomes and residents in that area -- current residents

in that area to a specific exposure.

Q.

And what are some of those severe limitations?

A.

So ---

Q.

(Interposing)

8
9

Or what -- let me strike that.

What are those severe limitations?


A.

Studies of health outcomes from environmental

10

exposures need to take into account a lifetime of

11

exposure.

12

where they work, what their daily habits are that could

13

potentially expose them to the substance you are

14

concerned about.

15

extremely expensive.

16

complicated epidemiologic study more suited to an

17

academic institution.

So you need to know where people have lived,

And to conduct that kind of study is


And technically, it is a

18

Q.

Any other severe limitations?

19

A.

It is an ecological study.

20

Q.

How long would a study like that take?

21

A.

Well, so what -- there is more than one kind

22

of study you can do.

An ecological study is usually what

23

people start with.

24

look at measures of exposure in an area, and you look at

25

measures of disease in a population, but you can't

And the problem with that is that you

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analyze it down to the individual.

conclude that the individual outcome is the result of an

individual exposure.

fallacy.

Therefore, you cannot

It is called the ecological

The other kinds of studies, where you can

actually follow individual exposures and individual

outcomes, the ideal way to do that is in a prospective

cohort study.

outcomes like cancer, that could take decades.

And that could -- when you are looking at

10

Q.

How many decades?

11

A.

Many decades.

12

Q.

50 years, 40 years?

13

A.

Yeah, on the order of 50 years.

14

Q.

And any other severe limitations that you can

15

think of?

16

A.

Those are the main ones.

17

Q.

And so would you ---

18

A.

(Interposing)

19

Q.

Sure.

20

A.

--- the absence of biomarkers.

Actually, let me just add ---

Ideally, you

21

would want to be able to measure persons exposed, you

22

would want to be able to measure evidence of the

23

substance in the person.

24

some sort, like a blood level, but for whatever chemical

25

you were interested in, and then the health outcome.

That would be a biomarker of

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And that is how you can link one to the next

to the next.

resources or technology.

Q.

So we can't do that.

We don't have the

And so when you expressed the severe

limitations to the Secretary, what was his response to

you?

A.

He acknowledged those limitations, but was

interested to see what, at least, we could find from

looking at the cancer registry, reports of cancers of

10

people who reside in those areas.

11

Q.

When you say "those areas," what do you mean?

12

A.

I don't remember the geographic -- when we

13

made the actual request of the cancer registry, how they

14

broke down the geographic area.

15

-- sorry, I did air quotes -- near coal ash impoundments.

But people living "near"

16

Q.

How close?

17

A.

That is what I -- I don't remember, off the

18

top of my head.

19

Q.

When it says within the e-mail that Rick will

20

provide locations to CCR," these are the locations, I

21

presume, where coal ash impoundments are in North

22

Carolina?

23

A.

Yes.

24

Q.

And "CCR" is a Cancer registry.

25

Is that a

State-run registry?

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A.

Yes, it is.

Q.

And then she says that, "vanadium is another

leading contaminant.

really vague."

A.

Yes.

Q.

Is vanadium known to cause cancer?

A.

No.

Q.

And its non-cancer effects, you agree with,

However, its non-cancer effects are

Do you agree with that statement?

are really vague?

10

A.

They are ---

11

Q.

(Interposing)

12

A.

Vanadium health effects have been observed in

Explain that, what that means.

13

toxicologic studies involving animal models and affect

14

kidneys and blood cells.

15

Q.

Have they been tested in human models?

16

A.

No.

17

Q.

Okay.

We don't test in human models.


That displayed my ignorance there.

18

Well, let me ask this in this way.

Has there been any

19

studies showing the effects -- cancer-related effects on

20

humans as a result of vanadium?

21

A.

No.

22

Q.

If you would turn to page -- it is number 29

23

on this exhibit, at the bottom.

24

A.

Yes.

25

Q.

Okay.

Do you see that?

Dr. Shehee's e-mail to Rick Langley

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indicates that the -- essentially to go ahead and request

the study, right?

A.

Yes.

Q.

Is that right?

And she indicates that there

is a very short deadline; is that right?

A.

Yes.

Q.

Why was there a short deadline?

A.

Because it was requested by the Secretary of

Health and Human Services.

10

Q.

Did the Secretary request a short deadline?

11

A.

I don't remember him specifically requesting a

12

short deadline.

13

Q.

14

imposed?

15

A.

And explain to me why a short deadline was

Because when the Secretary of the Department

16

requests information for policymaking, people who work in

17

the Department prioritize that over other work.

18
19

Q.

But there was no specific direction from the

Secretary to conduct this study on a very short deadline?

20

A.

No.

21

Q.

And then there was as deadline imposed of

22

September 2nd; is that right?

23

A.

That is in my e-mail.

24

Q.

So despite your, I think you said, "severe

25

limitations," as expressed to the Secretary, the

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Secretary ultimately decided to go ahead with the study;

is that right?

A.

Yes.

Q.

And have you seen a copy of the study?

A.

I haven't.

Q.

Let me ask you this.

Why did the Secretary

want this study conducted?

A.

I don't know.

Q.

Did you ask him?

10

A.

I did not ask him why he wanted it.

11

Q.

And he didn't tell you why?

12

A.

He told me in a conversation he expressed

13

curiosity as to whether we had seen any increase in

14

cancer cases around -- in the areas around coal ash

15

ponds.

16

Q.

He said he is curious?

17

A.

He was -- wanted to know if there were -- if

18

we have seen increases in cancer cases.

19

context of, when I explained my caveats of performing a

20

cancer cluster analysis, he expressed the desire to at

21

least confirm that there were not strikingly high levels

22

occurring that might need immediate action.

23
24
25

Q.

He put it in the

And so this was -- this was outside DHHS's

work under CAMA; is that right?


A.

Correct.

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PAGE 155

Q.

This was a separate request?

A.

It came out of the issue -- these issues being

raised.

Q.

But it wasn't required under CAMA?

A.

No, it wasn't required under CAMA.

(DEFENDANT EXHIBIT 296 WAS

MARKED FOR IDENTIFICATION.)

Q.

I have handed you Exhibit 295 -- 296.

A.

Yes.

10

Q.

Is this the study that you request or the

11

Secretary requested?

12

A.

Yes.

13

Q.

And did you review this study once it was

14

produced?

15

A.

I read it, yes.

16

Q.

What did the study find?

17

A.

It found that, when comparing 95 percent

18

confidence intervals for the five-year age adjusted

19

rates, 2009 to 2013, incident rates for lung, bronchus

20

cancer in Gaston, Rockingham, and Stokes Counties are

21

significantly higher than the state rate.

22

rate for prostate cancer in Robeson County is also

23

significantly higher than the state rate.

24
25

The incidence

Given the number of rates being compared, this


may just reflect the random distribution of the cancer

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PAGE 156

incidence rates.

Also noted that some of these 14

counties had incidence rates significantly lower than the

state rate.

associated with environmental factors, which is a set of

cancers they routinely look at in these requests, when

comparing the 95 percent confidence intervals for the

five-year age adjusted rates, 2009 to 2013, the incidence

rate for liver cancer in Gaston County is significantly

higher than the state rate.

Additionally, when looking at cancers

And the multiple myeloma

10

incidence rate in Wayne County is significantly higher

11

than the state rate.

12

Again, given the numbers of rates being

13

compared, this may just reflect the random distribution

14

of the cancer incidence rates, and that some of the

15

counties had incidence rates significantly lower than the

16

state rate.

17

Q.

So both of the Table 1 and Table 2s have a

18

caveat associated with them, that given the number of

19

rates being compared, this may just reflect the random

20

distribution of the cancer incidence rates.

21

that?

22

What is

Explain what that means.


A.

Statistically, what this -- what the cancer

23

registry does is look for statistical anomaly: something

24

that is higher or lower, although in cancer rates, you

25

are looking for higher than an average.

It could be

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PAGE 157

national, it could be state.

routinely use the state.

time periods and compare the rates in the same geographic

area.

It could be based -- they

Sometimes they use different

So there are different ways that you compare

one rate to another and do a statistical test of the

probability that the difference between those rates is

due to random chance.

comparisons, you will generate results that are

So if you do enough statistical

10

statistically different.

11

am not a statistician, so I don't explain this very well.

12

I apologize.

13

Q.

I am an epidemiologist, but I

And I think you initially said that the study

14

was based upon proximity to coal ash impoundments in

15

North Carolina, whether or not they were near -- I think

16

you used the word -- "near" the facilities?

17

MR. HOLLEMAN:

Object to the form.

18

THE WITNESS:

The study was based on

19

proximity, current residents being somewhat near coal ash

20

impoundments.

21
22

BY MR. ROSSER:
Q.

Okay.

When I look at the study, it appears

23

that the study was performed on a calendar basis; is that

24

correct?

25

A.

That is correct.

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2

Q.

5/4/16

PAGE 158

And not necessarily proximity to a coal ash

facility; is that right?

A.

Yes, I think that is right.

Q.

So when I look at this, the results -- and I

look at Table 1 on page 3 of 6, the bottom table there,

this refers to all cancers?

A.

Uh-huh.

Q.

And I see case -- the first column -- sorry.

The second column is -- refers to cases.

Does that refer

10

to the number of all cancer cases within that county that

11

have been reported to the registry?

12
13

A.

You are talking about Table 1, continued --

the bottom table on page 3 of 6?

14

Q.

Just the bottom table.

15

A.

Yeah.

Yeah.

Yeah, so that is all cases of cancer

16

reported in residents of that county to the cancer

17

registry during the time frame analyzed.

18
19

Q.

And that time frame analyzed was from 2000 --

or, I am sorry, during 2009 to 2013?

20

A.

That is correct.

21

Q.

And then the next column says, "Rate."

22
23

What

does that refer to?


A.

The rate is the number of cases in the first

24

column, over the average population for that county in

25

that time frame.

And it is expressed -- I believe it is

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1
2

expressed per 100,000.


Q.

5/4/16

PAGE 159

That is the usual convention.

And if I am reading this table correctly, in

all but one of the counties -- that would be Rockingham

County -- with CCR impoundments in North Carolina, the

overall cancer rates were lower than the state rate; is

that correct?

MR. HOLLEMAN:

Object to the form.

THE WITNESS:

That is correct.

BY MR. ROSSER:

10
11

Q.

If you go to page 2 of 6, on stomach cancer --

do you see that?

12

A.

Yes.

13

Q.

In all but three of the counties -- Caswell,

14

Person, and Cleveland -- with CCR impoundments in North

15

Carolina, rates for stomach cancer were lower than the

16

state rate.

17

Is that correct?

(Witness peruses document.)

18

A.

That is right.

19

Q.

And then on page 3 of 6, for small intestine

20

cancer -- do you see that?

21

A.

I do.

22

Q.

In all but one of the counties with CCR

23

impoundments -- that being Gaston County -- rates for

24

small intestine cancer were lower than the state rate; is

25

that right?

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5/4/16

PAGE 160

They are either lower or not calculated,

because that was, I think -- because the numerator was

too small.

4
5

MR. ROSSER:

We will take five minutes.

am almost done.

MR. ROSSER:

OFF THE RECORD.

2:15 P.M.

(A BRIEF RECESS WAS TAKEN.)

MR. ROSSER:

ON THE RECORD.

MR. ROSSER:

Dr. Davies, I have no further

2:18 A.M.

10

questions at this time.

11

though, is we have got a request outstanding to DEQ for

12

documents related to communications between DEQ and DHHS.

13

Those documents have not been made available as of yet.

14

So what I will request is that this deposition be held

15

open in case some of those documents for some -- for

16

whatever reason, compel us to try to bring you back here

17

for another session.

18

One thing that I do want to do,

I doubt that will occur, but I just want to

19

leave open that possibility, in case we do discover

20

something in those documents that we want to talk to you

21

further about.

22

THE WITNESS:

I understand.

23

MS. LeVEAUX:

I don't have any questions.

24

MR. HOLLEMAN:

Do you have any?

25

MR. ROBBINS:

I have none.

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MR. HOLLEMAN:

PAGE 161

I have some, following up on

the new exhibits he introduced.

30 minutes.

to go ahead and try to get through?

And we have got ten minutes.

THE WITNESS:

2:45, but then I can't.

out of the building.

R E D I R E C T

9
10

It will probably take me

Yeah.

Do you want me

I can -- I can go until

Somebody will have to lead me

E X A M I N A T I O N

2:19 P.M.

BY MR. HOLLEMAN:
Q.

Duke's attorney gave you this study marked

11

Exhibit 296, the cancer study and asking -- answering

12

questions about it.

13

determining whether people who lived near coal ash

14

impoundments are getting a higher rate of cancer, this

15

study really is worthless as a scientific matter,

16

correct.

And isn't it true that in terms of

17

MS. LeVEAUX:

Objection to form.

18

THE WITNESS:

It does not answer that

19

question.

20
21

BY MR. HOLLEMAN:
Q.

From this study, you can't tell one way or

22

another -- I mean, not you.

One cannot tell, one way or

23

another, whether people who lived near Duke's coal ash

24

impoundments are getting a higher rate of cancer or not;

25

is that correct?

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5/4/16

PAGE 162

Within the statistical limits of this study,

you can say whether people who live in a county with one

of these coal ash impoundments are ---

Q.

Go ahead.

I am sorry.

A.

--- are getting a higher level of ---

Q.

You can say what the people who live in the

county are, but not the people who live near the

impoundments; correct.

MR. ROSSER:

10

Object to the form.

BY MR. HOLLEMAN:

11

Q.

Within two miles of the coal ash sites?

12

A.

Correct.

13

Q.

And in addition, this doesn't -- this study

14

doesn't tell you anything about whether people who drink

15

the contaminated well water are getting a higher rate of

16

cancer; correct?

17

A.

That is correct.

18

MR. ROSSER:

19

BY MR. HOLLEMAN:

20

Q.

In fact, we saw earlier, Rowan County -- you

21

know that county?

22

right?

23
24
25

A.

Object to the form.

That is where Salisbury is located,

I do know Rowan County.

I do know Rowan

County, yes.
Q.

That is where Buck is; correct?

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PAGE 163

A.

Yes.

Q.

And we saw that where some of the people who

live near the Duke coal ash impoundments have high levels

of hexavalent chromium in their well water, exceeding

one, five, ten, and even 20, the Town of Salisbury has

very low levels of hexavalent chromium, correct ---

MR. ROSSER:

Object to the form.

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

10

BY MR. HOLLEMAN:

11

Q.

--- in their water?

12

A.

Did I look at the Salisbury water?

13

Q.

Yes, you did.

14

A.

Then, yes.

15

Q.

And so since the people who -- most of the

16

people -- the overwhelming majority of the people who

17

live in Salisbury are drinking water with low levels of

18

hexavalent chromium, it should come as no surprise that

19

the people who live in that county as a whole may not be

20

showing up with cancers traced to hexavalent chromium?

21

MS. LeVEAUX:

Objection.

22

MR. ROSSER:

Objection.

23

MR. ROBBINS:

Objection.

24

THE WITNESS:

I don't know what proportion

25

of people living in Salisbury drink public water versus

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1

PAGE 164

well water.

2
3

5/4/16

BY MR. HOLLEMAN:
Q.

No, I am talking about the well water right

around the Buck coal ash pond.

drink that.

You do know how many

It is less than 500?

A.

Yes.

Q.

Less than 200, perhaps -- or less than 500?

A.

Yes.

MS. LeVEAUX:

Objection.

10

THE WITNESS:

Yes.

11

BY MR. HOLLEMAN:

12

Q.

The whole county?

13

A.

I don't know how many it is.

14

agreed to testing, but that number is known.

15
16

Not everybody

BY MR. HOLLEMAN:
Q.

It in the hundreds?

17

MS. LeVEAUX:

Objection.

18

MR. ROBBINS:

Objection.

19

BY MR. HOLLEMAN:

20

Q.

Would that be true?

21

A.

I -- I just don't know.

22

Q.

But you do know it is a small portion of the

23

I ---

population of Rowan County?

24

THE WITNESS:

Yes.

25

MS. LeVEAUX:

Objection.

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PAGE 165

BY MR. HOLLEMAN:

2
3

5/4/16

Q.

Now, Duke's lawyer showed you this Exhibit

293, which is "chromium-6 in U.S. Tap Water."

A.

What was the number?

Q.

293.

A.

Yes.

Q.

I believe you said you had never seen that

before; is that correct?

A.

That is correct.

10

Q.

So as far as you remember, it wasn't in the

11

DHHS -- at least it wasn't part of the materials you saw

12

at HHS related to chromium?

13

A.

Correct.

14

Q.

If you could then look at those "Frequently

15

Asked Questions," Exhibit 286.

16

A.

Yes.

17

Q.

Now, do you know who prepared these

18

"Frequently Asked Questions"?

19

A.

Department of Environmental Quality.

20

Q.

Who?

21

A.

The Department of Environmental Quality.

22

Q.

Did you or DHHS have any role in it that you

23

remember?

24
25

A.

We were sent copies to look at and comment on

them.

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2

Q.

5/4/16

PAGE 166

Do you remember if you reviewed it and

commented on it?

A.

If I reviewed it and commented on it?

is hard to hear you, too.

don't know if I reviewed it before it went up on the

website.

Q.

Did you submit any comments to DEQ about it?

A.

Yes.

I did review it.

See, it

I don't -- I

And, actually, I am remembering that

this came to me for review with a very short turnaround

10

time before it was posted.

11

something, somewhere, and trying to review it on my

12

i-Phone, or whatever kind of device I had at the time --

13

SmartPhone.

14

I was driving back from

So I had some comments.

I don't know if they

15

-- I can't recall the timing of -- or -- I actually don't

16

remember what the comments were anymore.

17
18

Q.

I was going to ask you, you do not remember

the substance of your comments?

19

A.

I don't.

20

Q.

Did you submit them in writing or orally?

21

A.

I might have sent an e-mail with comments in

22

it.

I spoke by phone with the communications staff at

23

Department of Health and Human Services.

24

Q.

Do you remember who you spoke to?

25

A.

I think it was Alex Lefebvre.

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PAGE 167

Q.

Do you know who you sent the e-mail to?

A.

I am not sure I sent an e-mail, so, no.

Q.

No?

Okay.

Well, look at -- if you could,

look at page 4 of the "Frequently Asked Questions."

This

is the chart that Duke's lawyer asked you about.

And then look at page 10 of the report Duke's lawyer

provided you.

of the report that Duke's lawyer provided you, you will

see the four highest cities in America on that chart for

Okay.

And if you look at that chart, on page 10

10

hexavalent chromium are Norman, Oklahoma; Honolulu,

11

Hawaii; Riverside, California; and Madison, Wisconsin.

12

Do you see that?

13

A.

Yes.

14

Q.

And do you see those very cities somehow found

15

their way into this chart in this "Frequently Asked

16

Questions" provided to the public?

17

A.

Yes.

18

MR. ROSSER:

19

BY MR. HOLLEMAN:

20
21

Q.

What is your question?

And those are the cities, are they not, that

show some of the very high numbers?

22

MR. ROSSER:

Object to form.

23

THE WITNESS:

Yes.

24

BY MR. HOLLEMAN:

25

Q.

Now, in fact, of course, people in North

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PAGE 168

Carolina don't drink water from Honolulu, Hawaii, do

they, as a regular matter; correct?

A.

Yes.

Q.

So if you look just at the North Carolina

cities in this chart, and not the cities pulled out of

this report, the North Carolina numbers for hexavalent

chromium are much lower; are they not?

8
9
10

A.

Are you talking about the "Frequently Asked

Questions" Table?
Q.

Yeah -- yes, ma'am, on four.

In other words,

11

Charlotte, Greensboro, and Raleigh -- and they only put

12

in three cities in North Carolina -- but they are all --

13

they all had much lower levels of hexavalent chromium; do

14

they not?

15

A.

Lower than?

16

Q.

Well, for example, Norman, Oklahoma, which for

17
18
19
20

some reason was picked out for this chart?


A.

The North Carolina cities' highest levels are

much lower than the Normal, Oklahoma highest levels.


Q.

And in fact, their lowest level in the

21

range -- the bottom end of the range for all three North

22

Carolina cities are below the health screening level, are

23

they not?

24

A.

Yes.

25

Q.

And when this chart was put together, instead

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PAGE 169

of giving the mean or average amount of chromium-6 level,

they put in a range that would include the highest

measurement obtained, did they not?

MR. ROSSER:

Object to the form.

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

It would appear so.

BY MR. HOLLEMAN:

Q.

And if you look again at this chart -- the

10

chart in the report that Duke's lawyer gave you, at page

11

10, you see some very well known cities -- New York, New

12

York, Miami, Florida, Boston, Massachusetts, Cincinnati,

13

Ohio, and Indianapolis, Indiana -- all have hexavalent

14

chromium levels below your health screen level; isn't

15

that correct.

16

MR. ROSSER:

Object to the form.

17

THE WITNESS:

They have lower levels on this

18

chart.

19

BY MR. HOLLEMAN:

20

Q.

But none of those well-known cities made it

21

into the DEQ "Frequently Asked Questions" chart, did

22

they?

23

MS. LeVEAUX:

Objection.

24

THE WITNESS:

They are not on the Frequently

25

Asked Question chart.

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2

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PAGE 170

BY MR. HOLLEMAN:
Q.

Did you ever have any discussions with anyone

at DEQ or elsewhere about why these particular places,

such as Norman, Oklahoma, were picked out to be put into

this chart for North Carolina residents to review about

their risk from hexavalent chromium?

A.

No.

MS. LeVEAUX:

BY MR. HOLLEMAN:

10

Q.

Objection.

Now, if you look, also, at the same frequently

11

asked questions -- I am sorry, not that.

12

to something else.

13

Exhibit 291, the April 2016 report ---

Let me go back

If you could look at this report,

14

A.

Yes.

15

Q.

--- now, did you or others at HHS work in

16

conjunction with DEQ to produce this report?

17

A.

No.

18

Q.

Did they ever meet with you about this report

19

before it was written?

20

A.

Not that I am aware of.

21

Q.

Did they ask -- I believe you said earlier you

22

provided them days where you would meet with them; is

23

that correct?

24

A.

That is not correct.

25

Q.

Okay.

Correct me on that.

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2

A.

5/4/16

PAGE 171

I didn't provide dates, but I said we were

available for staff meetings.

Q.

And you never heard anything back from DEQ?

MS. LeVEAUX:

Objection.

THE WITNESS:

I don't remember any.

BY MR. HOLLEMAN:

7
8

Q.

Did they ever ask you for information to put

into this report before it was submitted?

MS. LeVEAUX:

Objection.

10

THE WITNESS:

I don't think so.

11

BY MR. HOLLEMAN:

12

Q.

And before the report was issued, did you or

13

HHS play any role in coming up with the recommendations

14

that are in the report?

15

MS. LeVEAUX:

Objection.

16

THE WITNESS:

I don't know.

17

BY MR. HOLLEMAN:

18

Q.

But you did not?

19

A.

I did not.

20

A.

Now, I notice this report never says that HHS

21

didn't participate in its preparation.

22

that?

23
24
25

A.

HHS reviewed it before it was submitted to the

General Assembly.
Q.

Did you notice

So in that sense, we participated.

So you reviewed it, but you didn't participate

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PAGE 172

in putting together the recommendations ---

MS. LeVEAUX:

Objection.

MR. ROSSER:

Objection.

BY MR. HOLLEMAN:

Q.

--- is that correct?

A.

I don't know if anyone else in HHS did.

Q.

Did you raise an issue, or did anyone else at

HHS raise an issue about whether this report should note

the very limited role that HHS played in connection ---

10

MS. LeVEAUX:

Objection.

11

MR. ROSSER:

Objection to form.

12

THE WITNESS:

I did not raise that issue.

13

BY MR. HOLLEMAN:

14

Q.

Do you know if someone else did?

15

A.

I don't know if someone else did.

16

Q.

If you could look at page 4 of that report,

17

it says that DEQ recommends that HHS include additional

18

information that the EPA current limit for, they say,

19

hexavalent chromium is 100 parts per billion; do you see

20

that?

21

MS. LeVEAUX:

Objection.

22

THE WITNESS:

Is this the third

23

paragraph ---

24
25

BY MR. HOLLEMAN:
Q.

(Interposing)

Yes, ma'am.

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PAGE 173

A.

--- on page 4?

Q.

Yes, ma'am.

A.

DEQ recommends that DHHS include additional

clarifying information in the issuance of HREs that

explains that both bottled water, regulated by the U.S.

Food and Drug Administration, and water supply by Public

Water Supply regulated by the U.S. EPA, may potentially

and legally contain up to 100 micrograms of hexavalent

chromium measured as total chromium.

10

Q.

Yes, I see that.

Now, this report does not recommend that the

11

consumers of this water -- the public -- be informed,

12

that EPA was reviewing that standard, does it?

13

MS. LeVEAUX:

Objection.

14

THE WITNESS:

I don't see that in here.

15

BY MR. HOLLEMAN:

16

Q.

And nor does it recommend that the public be

17

informed that EPA came up with this standard before they

18

were aware that hexavalent chromium was a human

19

carcinogen?

20

MR. ROSSER:

Objection to form.

21

MR. ROBBINS:

Objection.

22

THE WITNESS:

That is not in there.

23

BY MR. HOLLEMAN:

24
25

Q.

All right.

And do you know that it is true

that EPA came up with the chromium -- total chromium

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 173 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 174

standard of 100 before it was known that hexavalent

chromium was a human carcinogen?

A.

That sounds familiar, but I don't know that.

Q.

Now, did you -- they say at the end, here,

that "by providing the information -- only the

information they suggest, that will allow for a more

informed health risk conclusion by the private well

owner."

Do you agree with that statement?

A.

Yes.

10

Q.

Do you think it would be -- the private well

11

owner would have more important information if he or she

12

were told about the limitations on the EPA 100 parts per

13

billion standard?

14

MS. LeVEAUX:

Objection.

15

THE WITNESS:

I think that if you are

16

providing additional information to contextualize the

17

homeowners' decision -- decision process for managing

18

their risk, we should provide full additional

19

information.

20
21
22
23

BY MR. HOLLEMAN:
Q.

And that would include the explanations

concerning the limitations on the EPA limit?


A.

Yes.

24

MR. ROSSER:

Objection to form.

25

MR. ROBBINS:

Objection.

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 174 of 186

MEGAN MARIA DAVIES, M.D.


1

PAGE 175

BY MR. HOLLEMAN:

2
3

5/4/16

Q.

Now, are you aware that vanadium is considered

to be a possible human carcinogen?

A.

No.

Q.

Just to clear this up, when you are doing

research on the cancer-causing effects substances in

humans, it is a recognized practice in science to do

animal tests; is that correct?

A.

Yes.

10

Q.

And some of those tests are done on mice; is

11

that correct?

12

A.

Yes.

13

Q.

And it is considered ethically prohibited to

14

do tests on cancer-causing substances on human beings; is

15

that correct?

16

A.

Yes.

17

Q.

Now, you are aware Mr. Reeder criticized the

18

existing science on hexavalent chromium by pointing out

19

that it was based on tests on mice?

20

saying that?

Do you remember him

21

MR. ROSSER:

Objection to form.

22

MR. ROBBINS:

Objection.

23

THE WITNESS:

I don't remember him saying

24
25

that.
BY MR. HOLLEMAN:

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 175 of 186

MEGAN MARIA DAVIES, M.D.


1
2

Q.

5/4/16

PAGE 176

Do you remember him saying something like that

at the legislative hearing that you attended?

MS. LeVEAUX:

Objection.

MR. ROSSER:

Same objection.

MR. ROBBINS:

Objection.

THE WITNESS:

I don't remember that part.

BY MR. HOLLEMAN:

8
9

Q.

Are you aware there are also so-called

correlational studies of human populations that are

10

sometimes done to see if there is an association between

11

a substance and human cancers?

12

A.

Yes.

13

Q.

And are you aware that has been done with

14
15
16
17

respect to hexavalent chromium in a community in Greece?


A.
chromium.
Q.

I am aware it has been done with hexavalent


I didn't recollect Greece.
And are you aware that those correlational

18

human studies have shown a correlation between hexavalent

19

chromium and human cancers?

20

MR. ROSSER:

Object to the form.

21

THE WITNESS:

I am aware that there are

22

epidemiological studies that show a correlation between

23

exposure to hexavalent chromium and human cancer.

24
25

BY MR. HOLLEMAN:
Q.

If you look at page -- again, back to the

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 176 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 177

report, 291 -- that is not what I wanted to direct you

to.

that, Duke's attorney asked you some questions.

just want to ask you a couple related to those.

If I could direct you to 294, and at the very end of


And I

A.

Okay.

Q.

He asked you about this phrase where the DHH

spokeswoman said that it was not one person who decided

to update recommendations.

Do you see that phrase?

A.

Yes.

10

Q.

Now, was there more than one person in HHS who

11

decided to update the recommendations?

Other than

12

Dr. Williams, was anyone else in HHS in favor of issuing

13

the "Do Drink" letter?

14

A.

I am not sure.

15

Q.

But you don't know of anyone?

16

A.

I don't -- don't know absolutely.

17

Q.

So the other people were in DEQ; is that

18

correct?

19

MS. LeVEAUX:

Objection.

20

THE WITNESS:

I don't know.

21

BY MR. HOLLEMAN:

22

Q.

Well, I think -- I believe you said to Duke's

23

attorney that it was correct that more than one person

24

decided to update the recommendation.

25

other person, other than Dr. Williams -- or was it only

So who was the

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 177 of 186

MEGAN MARIA DAVIES, M.D.


1

PAGE 178

Dr. Williams?

2
3

5/4/16

A.

So I might -- I might need to correct what I

said to the Duke attorney, in that I don't know.

Q.

Of anyone other than Dr. Williams?

A.

That is correct.

Q.

Duke's attorney asked you if bottled water was

regulated under the Safe Drinking -- federal Safe

Drinking Water Act.

no; is that correct?

And I believe you said, in general,

10

A.

Yes.

11

Q.

However, if municipal -- water from a

12

municipal system was used to fill the bottled water

13

containers, then, in effect, the water contained in the

14

bottle -- the bottles would be -- have been regulated by

15

the Safe Drinking Water Act; is that correct?

16

MS. LeVEAUX:

Objection.

17

MR. ROSSER:

Objection.

18

MR. ROBBINS:

Objection.

19

THE WITNESS:

I don't know enough about

20

either the legal or the manufacturing process to answer

21

that.

22
23

BY MR. HOLLEMAN:
Q.

Now, you said you -- he asked you if anybody

24

regulates it.

And you said you weren't sure, that it

25

might be regulated by the Food and Drug Administration;

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 178 of 186

MEGAN MARIA DAVIES, M.D.


1

5/4/16

PAGE 179

is that correct?

A.

Yes.

Q.

And by "it," I mean bottled water.

A.

Yes.

5
6

I am pretty sure it is regulated by the

Food and Drug Administration.


Q.

Now, he asked you about different levels of

carcinogen.

carcinogen is without risk to the human?

every level of the human carcinogen has some risk if

10
11

Isn't it true that no level of a human


In other words,

ingested by a human; is that true?


A.

What I have -- what I understand from

12

briefings from the toxicologist at Occupational and

13

Environmental Epidemiology Branch, and from lectures I

14

have attended, is that mutagenic carcinogens are not

15

presumed to be safe at any -- not presumed to be without

16

risk at any level.

17
18

Q.

And hexavalent chromium is mutagenic

carcinogen; is that correct?

19

A.

Yes.

20

Q.

The standard you used is the one in a million

21

standard, which is the standard generally accepted in the

22

field of toxicology and epidemiology; is that correct?

23

MR. ROSSER:

Objection.

24

THE WITNESS:

It is the standard laid out in

25

the 2L Rule.

And it is a generally accepted standard in

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 179 of 186

MEGAN MARIA DAVIES, M.D.


1

PAGE 180

the field of health risk evaluation.

2
3

5/4/16

BY MR. HOLLEMAN:
Q.

Now, there is also the possibility or -- not

just possibility, recognized fact, that different

carcinogens and different substances can interact with

each other and cause what sometimes is referred to as a

synergistic effect: that is, to make each of them more

dangerous than they would be alone; is that right?

A.

Yes.

10

Q.

And this one in a million standard, is that

11

one of the reasons why we have a one in a million

12

standard, because your risk or someone else's risk from

13

ingesting this may be much higher?

14

MS. LeVEAUX:

Objection.

15

MR. ROSSER:

Objection.

16

MR. ROBBINS:

Objection.

17

THE WITNESS:

My understanding of health

18

risk evaluation principles -- and it has been established

19

that I am not an expert in health risk evaluation -- my

20

understanding of those principles is that there are

21

uncertainty factors included in all the calculations to

22

account for that kind of variation.

23
24
25

BY MR. HOLLEMAN:
Q.

Now, if I could take you back to those

"Frequently Asked Questions" Duke's attorney asked you

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 180 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 181

about, Exhibit 286, and look at page 2, and it recites

that HHS used the one in one million standard; correct?

A.

Where is that on the page?

Q.

Under "What does it mean if HER or HHS suggest

I do not drink the water?

A.

Yes.

Q.

Okay.

Now, this question as written addresses

the people who have actually received the HRE; is that

correct -- what you were reading?

10

A.

Yes.

11

Q.

Now, many of these people -- and you have seen

12

some examples -- had hexavalent chromium in their

13

drinking water at many multiples of one in a million risk

14

level; isn't that correct?

15

MS. LeVEAUX:

Objection.

16

MR. ROSSER:

Objection.

17

THE WITNESS:

There were results that are

18

associated with a risk of more than on order of magnitude

19

of one in a million.

20
21

BY MR. HOLLEMAN:
Q.

So in other words, one in a million is .07.

22

And we have seen -- you have two before you that are

23

around 21 parts per billion?

24

A.

Yes.

25

Q.

And that is a one in -- roughly one in 3,000

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 181 of 186

MEGAN MARIA DAVIES, M.D.


1

5/4/16

PAGE 182

risk?

A.

So I just do it by order of magnitude.

Q.

Sure.

A.

So, yes, that is the correct order of

magnitude.

Q.

7
8

But there is nothing --MR. ROSSER:

Sorry.

(Interposing)

Excuse me.

We are at 2:49 now.

MR. HOLLEMAN:

You have to run?

10

THE WITNESS:

I do.

11

MR. HOLLEMAN:

Can I ask you one more

THE WITNESS:

Can I ask it walking out the

MR. ROSSER:

She has got to go.

12

question?

13
14
15
16
17
18

door?
We said

2:30 originally.
MR. HOLLEMAN:

Okay.

Thank you.

Well, let

me review my material and see if I need to come back.

19

THE WITNESS:

Thank you all.

20

(THE DEPOSITION WAS ADJOURNED AT 2:49 P.M.

21

TO RECONVENE AT AN UNSPECIFIED LATER TIME AND

22

DATE.)

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 182 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 183

S I G N A T U R E
I HAVE READ THE FOREGOING PAGES * TO *** WHICH CONTAIN
A CORRECT TRANSCRIPT OF THE ANSWERS MADE TO THE QUESTIONS HEREIN
RECORDED. MY SIGNATURE IS SUBJECT TO CORRECTIONS ON ATTACHED ERRATA
SHEET, IF ANY.
______________________________________________
(SIGNATURE OF MEGAN MARIA DAVIES, M.D.)

STATE OF
COUNTY OF
I CERTIFY THAT THE FOLLOWING PERSON PERSONALLY APPEARED BEFORE ME
THIS DAY, AND I HAVE PERSONAL KNOWLEDGE OF THE IDENTITY OF THE
PRINCIPAL OR HAVE SEEN SATISFACTORY EVIDENCE OF THE PRINCIPALS
IDENTITY, OR A CREDIBLE WITNESS KNOWN TO ME HAS SWORN TO THE
IDENTITY OF THE PRINCIPAL, ACKNOWLEDGING TO ME THAT HE OR SHE
VOLUNTARILY SIGNED THE FOREGOING DOCUMENT FOR THE PURPOSE STATED
HEREIN AND IN THE CAPACITY INDICATED:
_______________________________
(NAME OF PRINCIPAL)
_______________________________________
(DATE)
_______________________________________
(SIGNATURE OF NOTARY)

(OFFICIAL SEAL)

_______________________________________
(NOTARYS PRINTED NAME)

*******************************************************************
I, MICHAEL B. CARTER, NOTARY/REPORTER, DO CERTIFY THAT THE
FOREGOING TRANSCRIPT WAS DELIVERED TO THE WITNESS EITHER DIRECTLY OR
THROUGH THE WITNESS ATTORNEY OR THROUGH THE ATTORNEY RETAINING THE
WITNESS ON ______________________, AND THAT AS OF THIS DATE, I HAVE
NOT RECEIVED THE EXECUTED SIGNATURE PAGE OR ERRATA SHEET.
THEREFORE, MORE THAN 30 DAYS HAVING ELAPSED SINCE THE RECEIPT
OF THE TRANSCRIPT BY THE WITNESS, THE SEALED ORIGINAL TRANSCRIPT IS
HEREBY FILED WITH THE ORDERING ATTORNEY BY MEANS OF PRIORITY MAIL IN
ACCORDANCE WITH THE NORTH CAROLINA RULES OF CIVIL PROCEDURE.
_________________________
(DATE)

______________________________
MICHAEL B. CARTER, NOTARY/REPORTER
NOTARY NUMBER 19960030065
MY COMMISSION EXPIRES FEBRUARY 15, 2021

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 183 of 186

MEGAN MARIA DAVIES, M.D.

5/4/16

PAGE 184

STATE OF NORTH CAROLINA


COUNTY OF NASH
C E R T I F I C A T E
I, MICHAEL B. CARTER, NOTARY PUBLIC-REPORTER, DO
HEREBY CERTIFY THAT MEGAN MARIA DAVIES, M.D. WAS DULY
SWORN BY ME PRIOR TO THE TAKING OF THE FOREGOING
DEPOSITION, THAT THE IDENTITY OF THE WITNESS WAS VERIFIED,
THAT SAID DEPOSITION WAS TAKEN BY ME AND TRANSCRIBED UNDER
MY DIRECTION, AND THAT THE FOREGOING 183 PAGES CONSTITUTE
A TRUE AND CORRECT TRANSCRIPT OF THE TESTIMONY OF THE
WITNESS.
I DO FURTHER CERTIFY THAT I AM NOT COUNSEL FOR
OR IN THE EMPLOYMENT OF ANY OF THE PARTIES TO THIS ACTION,
NOR AM I INTERESTED IN THE RESULTS OF THIS ACTION.
I DO FURTHER CERTIFY THAT THE STIPULATIONS
CONTAINED HEREIN WERE ENTERED INTO BY COUNSEL IN MY
PRESENCE.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND
THIS 8TH DAY OF MAY, 2016.

MICHAEL B. CARTER
NOTARY PUBLIC FOR THE
STATE OF NORTH CAROLINA
NOTARY NUMBER 19960030065
MY COMMISSION EXPIRES
FEBRUARY 15, 2021

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 184 of 186

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 185 of 186

Case 1:14-cv-00753-LCB-JEP Document 81-2 Filed 08/02/16 Page 186 of 186

Leslie Griffith
From:
Sent:
To:
Cc:
Subject:

Frank Holleman
Monday, July 18, 2016 3:29 PM
'Long, Nash'
Myra Blake; Leslie Griffith; Anita LeVeaux; jbarkley
RE: Rudo deposition

Nash,

Wehaven'theardanyvalidreasontodenypublicaccesstothetestimonygivenbyastateemployeeconcerninghis
duties.Asaresult,wecan'tagreetodelayaccesstothetranscript.Ontwopriorinstances,similartranscriptswere
madepublicwithoutanyobjectionbyanyone.Everyoneanticipatedthesamewouldhappenhere,butDukeEnergyhas
takennoactiontopresentanyobjectiontotheCourtbeforeorsincethedeposition.

IfDukeEnergy'sbelievesithasavalidreasontofileamotionwiththeCourttoblockpublicaccesstothistranscript,itus
uptoDukeEnergytodoso.Wehavenotheardavalidreasonanddonotknowofone.DukeEnergyshouldnotassume
thatwewilldelayintherelease.

OriginalMessage
From:Long,Nash[mailto:nlong@hunton.com]
Sent:Monday,July18,20163:04PM
To:FrankHolleman
Cc:MyraBlake;LeslieGriffith;AnitaLeVeaux;jbarkley
Subject:Re:Rudodeposition

Frank,

Iunderstandyourposition,butaskthatSELCtakenoactionwithrespecttothepartialtranscriptbeforeweobtainsuch
guidancefromtheCourt.AsIhavestatedseveraltimesbefore,Rule3.6oftheProfessionalRulesofConductapplies
here.

Thanks,

Nash

SentfrommyiPhone

>OnJul18,2016,at1:16PM,FrankHolleman<fholleman@selcnc.org>wrote:
>
>Nash,
>
>TheresponsebelowdoesnotsetoutanyvalidreasonforpreventingthepublicreleaseofDr.Rudo'sdeposition.Duke
Energyhasnorighttopreventitsreleaseofwhichweareaware.
>
>Thisresponsegivesusnoreasonnottomakethetranscriptpubliclyavailable.IfDukeEnergybelievesithasavalid
legalbasistoasktheCourttopreventitsrelease,itisuptoDukeEnergytotakethataction.Wearenotawareofany
suchvalidlegalbasis.
>
>Undertherulesandthelaw,weconsiderourselvesfreetomakethetranscriptpubliclyavailable.
1

Case 1:14-cv-00753-LCB-JEP Document 81-3 Filed 08/02/16 Page 1 of 3

>
>
>
>
>OriginalMessage
>From:Long,Nash[mailto:nlong@hunton.com]
>Sent:Monday,July18,201612:52PM
>To:FrankHolleman
>Cc:MyraBlake;LeslieGriffith;AnitaLeVeaux;jbarkley
>Subject:Re:Rudodeposition
>
>Frank,
>
>Givenourconcernsontheinadmissibilityofthetestimony,thatourquestioningofthewitnesswasinterrupted,that
wearecurrentlytryingtoschedulethecompletionofthisdeposition,andthatwehavenotyetbeenprovidedwith
copieswerequestedofthedocumentsDr.Rudobroughttothedepositionandreferencedtherein,wedonotbelieve
thatdisseminationofDr.Rudo'spartialtranscriptisappropriate.DukeEnergydoesnot,therefore,agreetoitsrelease.
>
>IbelievethisisanissueonwhichthepartieswouldbenefitfromguidancefromtheCourt.Canwediscussaschedule
onwhichthatmaybesought?
>
>Thanks,
>
>Nash
>
>SentfrommyiPhone
>
>>OnJul18,2016,at9:32AM,FrankHolleman<fholleman@selcnc.org>wrote:
>>
>>Thatisoneopinionbutmaynotbeeveryone's.Inanyevent,thereisnobarriertothepublicdisseminationofa
depositiontranscript.Ouruseofthetranscriptisnotlimitedbythisexchange,butwewouldmakeitavailableupon
request.
>>
>>OriginalMessage
>>From:Long,Nash[mailto:nlong@hunton.com]
>>Sent:Monday,July18,201610:29AM
>>To:FrankHolleman
>>Cc:MyraBlake;LeslieGriffith;AnitaLeVeaux;jbarkley
>>Subject:Re:Rudodeposition
>>
>>Frank,
>>
>>Thedepositiontranscriptisfullofhearsayandthetestimonyprofferedislargelyinadmissible.Canyouclarifywhat
SELCintendstodowithsuchatranscript?
>>
>>Nash
>>
>>SentfrommyiPhone
>>
>>OnJul18,2016,at8:55AM,FrankHolleman<fholleman@selcnc.org<mailto:fholleman@selcnc.org>>wrote:
>>
2

Case 1:14-cv-00753-LCB-JEP Document 81-3 Filed 08/02/16 Page 2 of 3

>>Asbefore,toourknowledgethereisnothinginthisdepositionthatpreventsitfrombeingmadepubliclyavailable.
Letusknowyourpositionby5p.m.today,please.Thankyou.
>>
>>From:PRECISIONREPORTING&[mailto:precisionreport@embarqmail.com]
>>Sent:Saturday,July16,20169:45AM
>>To:FrankHolleman;LouAnnPhelps;PatDunlop;LauraLaFleur;MyraBlake;LeslieGriffith;AnitaLeVeaux;jbarkley;
nlong
>>Subject:Rudodeposition
>>
>>AttachedisthedepositionofDr.RudotakenintheNCDENRv.SierraClubmatterearlierthisweek.Iamsendingthis
toyouinpdfandETranformatsforyourconvenience.Pleasesharethesefileswithanycocounselwhoarenotonthis
mailingwhomayrequirethem.Iamalsosendinganattachedsignatureinformationanderratasheetforthewitness.
Letmeknowifyouhavedifficultyopeninganyofthesedocuments.WeplantosendhardcopiesoutonMonday.
>>
>>
>>
>>TerrenceX.McGovern,Ph.D.
>>PrecisionReporting&Transcribing,Inc.
>>P.O.Box1659
>>SpringHope,N.C.27882
>>Office:2524786968
>>Cell:9192153257
>>Fax:2524786984
>>
>>
>>
>>

Case 1:14-cv-00753-LCB-JEP Document 81-3 Filed 08/02/16 Page 3 of 3

Leslie Griffith
From:
Sent:
To:
Subject:

Frank Holleman
Monday, July 18, 2016 4:52 PM
'LeVeaux, Anita'; Myra Blake; Leslie Griffith; Barkley, John; nlong
RE: Rudo deposition

Thankyou.

From: LeVeaux, Anita [mailto:ALEVEAUX@ncdoj.gov]


Sent: Monday, July 18, 2016 4:51 PM
To: Frank Holleman; Myra Blake; Leslie Griffith; Barkley, John; nlong
Subject: RE: Rudo deposition

Frank:

InmyreviewforDEQIdidnotseeanyconfidentialinformationthatIbelievewouldprecludethereleaseofthe
transcripttothepublic.

Anita

From: Frank Holleman [mailto:fholleman@selcnc.org]


Sent: Monday, July 18, 2016 9:56 AM
To: Myra Blake; Leslie Griffith; LeVeaux, Anita; Barkley, John; nlong
Subject: RE: Rudo deposition

Asbefore,toourknowledgethereisnothinginthisdepositionthatpreventsitfrombeingmadepubliclyavailable.Let
usknowyourpositionby5p.m.today,please.Thankyou.

From: PRECISION REPORTING & [mailto:precisionreport@embarqmail.com]


Sent: Saturday, July 16, 2016 9:45 AM
To: Frank Holleman; Lou Ann Phelps; Pat Dunlop; Laura LaFleur; Myra Blake; Leslie Griffith; Anita LeVeaux; jbarkley;
nlong
Subject: Rudo deposition
Attached is the deposition of Dr. Rudo taken in the NCDENR v. Sierra Club matter earlier this week. I am sending this to
you in pdf and E-Tran formats for your convenience. Please share these files with any co-counsel who are not on this
mailing who may require them. I am also sending an attached signature information and errata sheet for the witness. Let
me know if you have difficulty opening any of these documents. We plan to send hard copies out on Monday.
-Terrence X. McGovern, Ph.D.

Precision Reporting & Transcribing, Inc.


P.O. Box 1659
Spring Hope, N.C. 27882
Office: 252-478-6968
Cell: 919-215-3257
Fax: 252-478-6984

Case 1:14-cv-00753-LCB-JEP Document 81-4 Filed 08/02/16 Page 1 of 1

PAGE 1
_________________________________________________________
NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE


SUPERIOR COURT DIVISION
13-CVS-11032
____________________________________________________
STATE OF NORTH CAROLINA ex rel.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES,
Plaintiff,
V.

)
)
)
)
)
)
)DEPOSITION OF MINA
)WALLIN SHEHEE, Ph.D.
)
)

SIERRA CLUB, WATERKEEPER ALLIANCE,


NEUSE RIVERKEEPER FOUNDATION,
WINYAH RIVERS FOUNDATION, ROANOKE )
RIVER BASIN ASSOCIATION, and CAPE
)
FEAR RIVER WATCH, INC.,
)
)
Plaintiff-Intervenors, )
)
v.
)
)
DUKE ENERGY CAROLINAS, LLC,
)
)
Defendant.
)
_________________________________________________________
and
_________________________________________________________
NORTH CAROLINA
COUNTY OF MECKLENBURG

IN THE GENERAL COURT OF JUSTICE


SUPERIOR COURT DIVISION
13-CVS-14661
_________________________________________________________
STATE OF NORTH CAROLINA ex rel.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES,
Plaintiff,
V.
CATAWBA RIVERKEEPERS FOUNDATION,
INC., APPALACHIAN VOICES, YADKIN
RIVERKEEPER, MOUNTAINTRUE, DAN
RIVER BASIN ASSOCIATION, ROANOKE

)
)
)
)
)
)
)
)
)
)
)
)

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 1 of 174

PAGE 2
RIVER BASIN ASSOCIATION, SOUTHERN
ALLIANCE FOR CLEAN ENERGY, and
WATERKEEPER ALLIANCE,

)
)
)
)
Plaintiff-Intervenors, )
)
v.
)
)
DUKE ENERGY CAROLINAS, LLC,
)
)
Defendant.
)
_________________________________________________________
WEDNESDAY, APRIL 27, 2016
_________________________________________________________
ROOM 301
NORTH CAROLINA DEPARTMENT OF JUSTICE
114 WEST EDENTON STREET
RALEIGH, NORTH CAROLINA
9:17 A.M.
_________________________________________________________
VOLUME 1
PAGES 1 THROUGH 172
_________________________________________________________

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 2 of 174

PAGE 3
A P P E A R A N C E S
ON BEHALF OF THE PLAINTIFF:
ROY A. COOPER, III
ATTORNEY GENERAL FOR THE STATE OF NORTH CAROLINA
BY: ANITA LeVEAUX, SPECIAL DEPUTY ATTORNEY GENERAL
ENVIRONMENTAL DIVISION
GERALD ROBBINS, SPECIAL DEPUTY ATTORNEY
GENERAL
PUBLIC SAFETY SECTION
JOHN P. BARKLEY, ASSISTANT ATTORNEY GENERAL
HEALTH AND PUBLIC ASSISTANCE SECTION
NORTH CAROLINA DEPARTMENT OF JUSTICE
POST OFFICE BOX 629
RALEIGH, NORTH CAROLINA 27602-0629
919/716-6500
ANDREW J. NORTON, ASSISTANT GENERAL COUNSEL
NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL
QUALITY
217 WEST JONES STREET
RALEIGH, NORTH CAROLINA 27603
919/707-8613
ON BEHALF OF THE PLAINTIFF-INTERVENORS:
MYRA BLAKE, STAFF ATTORNEY
NICHOLAS S. TORREY, STAFF ATTORNEY
LESLIE GRIFFITH, ASSOCIATE ATTORNEY
SOUTHERN ENVIRONMENTAL LAW CENTER
601 WEST ROSEMARY STREET, SUITE 220
CHAPEL HILL, NORTH CAROLINA 27516-2356
919/967-1450
ON BEHALF OF THE DEFENDANT DUKE ENERGY:
NASH E. LONG, ESQUIRE
HUNTON & WILLIAMS, LLP
BANK OF AMERICA PLAZA
101 TRYON STREET, SUITE 3500
CHARLOTTE, NORTH CAROLINA 28280
704/378-4707

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 3 of 174

PAGE 4
A P P E A R A N C E S
(CONTINUED)
MICHELLE S. SPAK
ASSOCIATE GENERAL COUNSEL
DUKE ENERGY
DEC45A
550 SOUTH TRYON STREET
CHARLOTTE, NORTH CAROLINA 28202
980/373-3698
COURT REPORTER:
MICHAEL B. CARTER
PRECISION REPORTING & TRANSCRIBING, INC.
POST OFFICE BOX 1659
SPRING HOPE, NORTH CAROLINA 27882
252/478-6968
FAX: 252/478-6984
CELL: 919/215-3501

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 4 of 174

PAGE 5
T A B L E
WITNESS

O F

C O N T E N T S
DIRECT

MINA WILLAN SHEHEE


BY MS. BLAKE

7-147

BY MR. LONG

147-169

EXHIBITS
NUMBER

DESCRIPTION

PAGE

PLAINTIFF-INTERVENORS
274

EQUATION WORKSHEET FOR HEXAVALENT


CHROMIUM GROUND WATER STANDARD
(NO RSC FACTOR INCLUDED IN CARCINOGEN
CALCULATION
(2 PAGES)

25

275

EQUATION WORKSHEET FOR CHROMIUM 6


GROUND WATER STANDARD (2 PAGES)

27

276

LETTER DATED MARCH 11, 2016 FROM RANDALL


RANDALL WILLIAMS AND TOM REEDER
DEAR WELL OWNER - WITHDRAWAL OF
"DO NOT DRINK" USAGE RECOMMENDATION
(2 PAGES)

86

277

SYNTERRA CORRECTIVE ACTION PLAN (PART 2)


FOR MAYO STEAM ELECTRIC PLANT DATED
FEBRUARY 2016
PAGE 5-15
(1 PAGE)

97

278

SALISBURY-ROWAN 2013 DRINKING WATER


QUALITY REPORT (2 PAGES)

104

279

LETTER DATED JUNE 4, 2015, FROM DEBRA


106
WATTS TO B59 MARCOS ALBARRAN & NORA R.
GUITERREZ RE: RESULTS OF WATER SUPPLY WELL
SAMPLING AND HEALTH RISK EVALUATION
PLUS ATTACHMENTS (37 PAGES)

DEFENDANT
280

E-MAIL DATED 8/20/15 FROM MINA SHEHEE TO


MEGAN DAVIES RE: ADDITIONAL THOUGHTS
(1 PAGE - HANDWRITTEN 303)

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 5 of 174

164

PAGE 6
EXHIBITS (CONTD)
DEFENDANT
NUMBER

DESCRIPTION

281

E-MAIL CHAIN DATED 8/21/15 FROM CHANDRIKA


RAO TO RICK LANGLEY AND MINA SHEHEE
RE: HEALTH STUDY (2 PAGES -314, 315)

282

PAGE

HEXAVALENT CHROMIUM INFORMATION SHEET


(2 PAGES - 436, 437)

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166

168

PAGE 7
S T I P U L A T I O N S
PRIOR TO EXAMINATION OF THE WITNESS, COUNSEL
FOR THE PARTIES STIPULATED AND AGREED AS
FOLLOWS:
1.

OBJECTIONS TO QUESTIONS AND MOTIONS TO STRIKE

ANSWERS NEED NOT BE MADE DURING THE TAKING OF THIS


DEPOSITION, BUT MAY BE MADE FOR THE FIRST TIME DURING THE
PROGRESS OF THE TRIAL OF THIS CASE OR ANY PRE-TRIAL
HEARING HELD BEFORE THE JUDGE FOR THE PURPOSE OF RULING
THEREON OR AT ANY OTHER HEARING OF SAID CASE AT WHICH
SAID DEPOSITION MIGHT BE USED, EXCEPT AN OBJECTION AS TO
THE FORM OF A QUESTION MUST BE MADE AT THE TIME SUCH
QUESTION IS ASKED OR OBJECTION IS WAIVED AS TO THE FORM
OF THE QUESTION;
2.

THAT THE WITNESS DOES NOT WAIVE READING AND

SIGNING OF THE TRANSCRIPT.

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P R O C E E D I N G S

(WHEREUPON,

MINA WALLIN SHEHEE, Ph.D.

WAS CALLED AS A WITNESS, DULY SWORN, AND TESTIFIED AS

FOLLOWS:)

D I R E C T

BY MS. BLAKE:

8
9

Q.

E X A M I N A T I O N

Good morning.

My name is Myra Blake.

9:17 A.M.

I am an

attorney for the conservation groups in this matter.

10

Thank you so much for being here this morning to speak

11

with us.

12

A.

My apologies.

13

Q.

No problem, it happens.

14
15

Could you state your

full name for the record?


A.

16

Mina Wallin Shehee.


MS. BLAKE:

And I just want to note before

17

we begin talking that counsel have agreed to bring

18

forward the stipulations from the previous depositions in

19

this matter.

20
21
22

That is just a legal precedent.

BY MS. BLAKE:
Q.

And how many times have you -- have you been

deposed before, ever, Dr. Shehee?

23

A.

No.

24

Q.

Never?

25

(Witness nods negatively.)

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2

Q.

4/27/16

PAGE 9

Did your counsel explain the deposition

protocol to you?

A.

Yes.

Q.

So you know that you are under oath right now?

A.

Yes.

Q.

And even though we are in an informal setting

here, your answers carry the same weight and have the

same effect as if they were stated in a courtroom before

a judge?

10

A.

Yes.

11

Q.

And for the sake of the court reporter, please

12

try to answer each question verbally and avoid using

13

gestures; does that make sense?

14

A.

Yes.

15

Q.

And if you don't understand a question at all

16

please say so, and I will try to rephrase so that it

17

makes more sense.

18

may object to questions?

Do you understand that your attorney

19

A.

Yes.

20

Q.

And he may instruct you not to answer, but if

21

he does not, then you can answer the question.

22

A.

Okay.

23

Q.

Does that make sense?

24

A.

Yes.

25

Q.

And if you need a break at any time, just let

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PAGE 10

me know.

And if I am in the middle of a line of

questioning, we might get to the end of that and then we

will take a break as soon as we can; does that sound

good?

A.

Yes.

Q.

Is there anything at all that would prevent

you from giving full and accurate testimony today?

A.

No.

Q.

Before we begin, do you have any questions for

11

A.

No.

12

Q.

Did you do anything to prepare for this

10

13

me?

deposition?

14

A.

Yes.

15

Q.

Tell me about that.

16

A.

I went over my e-mails.

17

Q.

About how much time did you spend preparing?

18

A.

About six hours -- a lot of e-mails.

19

Q.

I understand.

20

Did your review of documents

bring anything to your memory that is worth noting?

21

A.

No.

22

Q.

Did your review of the e-mails cause you to

23

change any recollections in any way?

24

A.

No.

25

Q.

Are you prepared today to answer questions

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related to health standards and your role at DHHS?

A.

Yes.

Q.

Are you currently an employee of the

Department of Health and Human Services?

A.

Yes.

Q.

What is your position?

A.

Environmental Program Manager I.

Q.

Is there an Environmental Program Manager II?

A.

Yes.

10

Q.

Who is that?

11

A.

That is -- that is in DENR.

12

I am the only

Environmental Program Manager, as far as I can recollect.

13

Q.

I see.

15

A.

Don't know.

16

Q.

And what are your qualifications or training

14

17

Do you know the name of the Manager in

DENR?

for your position as Environmental Program Manager?

18

A.

I received a Doctorate in Environmental

19

Science and Engineering at the University of North

20

Carolina in 2002; did a post-doc in the University of

21

North Carolina in the department of Environmental

22

Sciences and Engineering, and then I came to work for

23

DHHS in 2003 as a temporary, and then worked my way

24

through various positions to the position I am at right

25

now.

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MINA WALLIN SHEHEE, Ph.D.


1
2
3
4
5
6
7

4/27/16

PAGE 12

Q.

What were some of the other positions that you

A.

Public Health Epidemiologist, Environmental

held?

Program Supervisor IV.


Q.

And do you have any other training or any

other degrees or anything like that?


A.

I have a Master's in Medical Science from

Emory University in Clinical Microbiology.

Bachelor of Arts from St. Cloud State University in St.

10
11
12
13
14
15
16
17

I have a

Cloud, Minnesota.
Q.

And what are your duties as Environmental

Program Manager I?
A.

Make sure that people have resources, have

adequate personnel and guidance.


Q.

And what sort of matters do you provide

guidance in?
A.

Resources, personnel issues, and any type of

18

technical issue that needs to be resolved between

19

individuals within the branch.

20

Q.

Who is your supervisor?

21

A.

Dr. Megan Davies.

22

Q.

And who do you oversee at DHHS?

23

Who do you

supervise?

24

A.

You want me to name everybody?

25

Q.

Could you give me a rough number of people?

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PAGE 13

A.

Twenty.

Q.

And in general, what kind of positions do

those twenty people hold?

A.

We have a medical consultant, a nurse

consultant, an environmental toxicologist, a public

health educator, a public health epidemiologist,

environmental program consultants, administrative

assistants.

9
10
11

Q.

And were you employed anywhere before joining

A.

I worked at the University of North Carolina,

DHHS?

12

Chapel Hill, in the Virology and Environmental

13

Microbiology laboratory in the Department of Sciences and

14

Engineering, as a research assistant, and was a research

15

associate.

16

Q.

And have you published any papers?

17

A.

Yes, I have published papers.

18

Q.

What is your most recent paper?

19

A.

I believe my most recent one is the one on the

20

use of well water and the importance of well water in

21

testing.

22

Q.

23
24
25

Can you briefly describe your conclusions in

that paper?
A.

We recommend that people test for well water

constituents, because a lot of people in North Carolina

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MINA WALLIN SHEHEE, Ph.D.

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PAGE 14

do not test for them, and that for the safety and the

health and welfare of their families, it is best to test

periodically.

North Carolina, but there is no requirement for existing

well owners to test.

We are finding that we test new wells in

Q.

What prompted you to write that paper?

A.

I -- I don't recall.

Q.

And were there any co-authors on that paper?

A.

Nirmala Barrows (phonetic)-- and that is the

10

extent of my memory right now.

11

body on the paper.

12

(phonetic), I don't know.

13

remember.

I just don't recall every

It may have been Ken Rider


I don't remember.

14

Q.

And who is Nirmala Barrows?

15

A.

Nirmala Barrows?

I don't

She was a Public Health

16

Epidemiologist with a background in Environmental Health.

17

She has recently found a job with U.S. EPA.

18

longer works with us.

She no

19

Q.

And what was the reason for leaving?

20

A.

She got a job at U.S. EPA.

21

Q.

Okay, just so I am clear on that.

Are you

22

familiar with the Health Base Screening Levels developed

23

by DHHS?

24

A.

Yes.

25

Q.

What are Health Base Screening Levels?

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MINA WALLIN SHEHEE, Ph.D.


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A.

4/27/16

PAGE 15

Health Base Screening Levels are

non-regulatory levels that provide protection for people

from exposure to contaminants.

4
5
6
7
8

Q.

And how do they provide protection?

You said

they provide protection, do they --A.

(Interposing) They are established at levels

that would not anticipate any adverse health effects.


Q.

And why does DHHS develop screening levels?

MR. ROBBINS:

Objection, if she knows.

10

THE WITNESS:

I don't know.

11

BY MS. BLAKE:

12
13

Q.

And have you been involved in the development

of any screening levels at DHHS?

14

A.

Yes.

15

Q.

Can you tell me about that?

16

A.

My role was to make sure that we followed the

17
18
19

existing guidelines and procedures.


Q.

And can you tell me what contaminants you were

developing health screening levels for?

20

A.

In what context?

21

Q.

Most recently?

You said -- to back up a

22

little bit, you said you were involved in developing some

23

Health Base Screening levels and making sure that they

24

followed the guidelines?

25

A.

Just -- just for the coal ash.

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MINA WALLIN SHEHEE, Ph.D.

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PAGE 16

Q.

And which contaminants were those?

A.

Hexavalent chromium and vanadium.

Q.

Were you involved in any screening level

development before that?

A.

I don't recall.

Q.

And do you know why DHHS was developing

screening levels for coal ash contaminants?

MR. ROBBINS:

Objection.

THE WITNESS:

No.

10
11
12
13

BY MS. BLAKE:
Q.

How do Health Base Screening Levels, in

general, compare to North Carolina groundwater standards?


A.

Health Screening Levels are calculated using

14

the 2L Rules, which includes the groundwater standards,

15

the Interim Maximum Allowable Concentrations.

16

is a part of the rule itself.

17
18

Q.

And so it

And that is the process.

Does DHHS develop Health Screening Levels

regularly?

19

A.

Not regularly.

20

Q.

What prompts the development of a Screening

21

Level, or in what circumstances would DHHS initiate

22

development of a Screening Level?

23

A.

If there is not an MCL, we follow the 2L.

And

24

if there is not a 2L then we follow IMAC.

We don't

25

follow IMAC for carcinogen, we follow the calculation in

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MINA WALLIN SHEHEE, Ph.D.


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2
3
4
5
6

4/27/16

PAGE 17

the 2L rule.
Q.

What is your understanding of how North

Carolina Groundwater Standards are developed?


A.

What do you mean by understanding?

Can you

clarify that for me?


Q.

Sure.

Could you describe in your own words

how -- the guidelines for setting groundwater standards

in North Carolina?

MS. LeVEAUX:

10
11
12

Objection.

BY MS. BLAKE:
Q.

And you can go ahead and answer unless counsel

instructs you not to.

13

A.

I don't know how to answer the question.

14

Q.

Would it help to have a copy of the North

15

Carolina 2L Rules to review?

16

A.

No.

17

Q.

Sure.

18
19

I just don't understand the question.


Do you understand the standards for

setting 2L Rules, or --A.

(Interposing) There is a paragraph in there

20

that states in there that the Division Director, you can

21

petition for -- a variety of different people can

22

petition to have certain standards set or certain

23

proposal -- I am going to correct that -- proposed.

24
25

Q.

And when the Agency is developing a 2L

standard, what is the -- what are the steps that they go

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PAGE 18

through to decide what the level should be?

MS. LeVEAUX:

Objection.

THE WITNESS:

I don't know.

BY MS. BLAKE:

Q.

And when DHHS is developing a Health Screening

Level, what are the steps that they go through to

decide ---

8
9

A.

(Interposing) We follow the 2L Rule.

not an MCL, then the 2L standard.

If it is

If there is not an

10

Interim -- I am going to call it IMAC for short -- then

11

we use the calculation that is stipulated in the Rule.

12

Q.

And can you state for the record what that

13

calculation is?

14

A.

Not off the top of my head, no.

15

Q.

Let me pass you a copy.

We won't introduce

16

this as an exhibit because it is just a copy of the 2L

17

Rules for you to review.

18

(Witness peruses document.)

19

And please let me know once you have had a

20

chance to take a look and refamiliarize yourself with the

21

six options that the 2L Rules -- 2L Standards are

22

established under.

23

A.

Yes.

24

Q.

And do the 2L Rules state that "Groundwater

25

quality standards are established as the least of" -- and

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2
3
4
5

4/27/16

PAGE 19

then lists six different criteria?


A.

I see it under item (d) -- there is no

reference number here -- (d), 1 through 6, paragraph (f).


Q.

Great.

And are these the criteria that DHHS

uses to set the Health Base Screening Levels?

A.

Number 1, number 2, 5, 6.

Q.

What is number 1 -- the Systemic threshold

concentration?

A.

10
11

That is a question for my toxicologist.

toxicologists run the numbers.


Q.

And can you explain in layperson terms what

12

number 2 means, "Concentration which corresponds to

13

incremental lifetime cancer risk of 1x10-6"?

14
15

My

A.

The concentration at which there may be one

case of cancer in a million.

16

Q.

Why is the standard set at one in a million?

17

A.

I don't know.

18

Q.

Is that the typical standard that is used to

19

determine whether a cancer risk exists?

20

MR. ROBBINS:

Objection.

21

THE WITNESS:

Yes.

22

BY MS. BLAKE:

23
24
25

Q.

Is the one in a million risk threshold used

anywhere besides in North Carolina?


A.

Yes.

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Q.

Can you give any examples?

A.

U.S. EPA.

Q.

Any other examples?

A.

I don't recall.

Q.

That is fine.

PAGE 20

So the standards -- the

Groundwater Rules say that the groundwater quality

standards should be established as the least of these six

criteria.

Does that mean the most protective?

MS. LeVEAUX:

Objection.

10

MR. ROBBINS:

Objection.

11

MR. LONG:

Join.

12

BY MS. BLAKE:

13

Q.

There were a lot of objections, but ---

14

A.

Okay.

15

Q.

Certainly.

Can you repeat the question, please?


So the Groundwater Rules state

16

that the groundwater quality standards must be

17

established as the least of the six criteria.

18

"the least of" mean?

What does

19

MR. ROBINS:

Objection.

20

MS. LeVEAUX:

Objection.

21

MR. LONG:

Join.

22

THE WITNESS:

I don't know what that means.

23

BY MS. BLAKE:

24
25

Q.

Is it part of your responsibility to be able

to help interpret rules ---

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MINA WALLIN SHEHEE, Ph.D.


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A.

MS. LeVEAUX:

BY MS. BLAKE:
Q.

PAGE 21

(Interposing) Yes.

4/27/16

Objection.

--- such as these?

And so if one of your

supervisees asked you for guidance as to what that phrase

meant, what would you tell them?

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

MR. LONG:

Join.

10

(Witness peruses document.)

11

THE WITNESS:

12

considered the most health protective.

13
14

The "least of" would be

BY MS. BLAKE:
Q.

And so one of the criteria we talked about was

15

the one in a million risk.

Another one that is listed

16

there, number 5, is the Maximum Contaminant Level.

17

that refer to Federal Maximum Contaminant Levels?

Does

18

A.

Yes.

19

Q.

And what would have to happen under the 2L

20

Rules if the one in a million cancer risk level was lower

21

than the Federal, I will call it, the MCL?

22

MS. LeVEAUX:

Objection.

23

MR. ROBBINS:

Objection.

24

MR. LONG:

Join.

25

THE WITNESS:

We would use the MCL.

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2

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PAGE 22

BY MS. BLAKE:
Q.

So if the cancer risk -- the one in a million

cancer risk was a lower number -- was the least of these

six, and the MCL was higher, which one would you use?

MR. ROBBINS:

Objection.

MS. LeVEAUX:

Objection.

THE WITNESS:

THE MCL.

BY MS. BLAKE:

Q.

And is that consistent with the 2L Rules?

10

MR. LONG:

Objection.

11

MS. LeVEAUX:

Objection.

12

THE WITNESS:

No.

13

BY MS. BLAKE:

14
15

Q.

Are you familiar with the health problems

associated with hexavalent chromium?

16

A.

Yes.

17

Q.

Can you tell me, just in general terms, what

18
19
20

some of those health problems are?


A.

I am going -- I can't recall every one,

because I am a little nervous.

21

Q.

I understand.

22

A.

One of the things that -- that I had --- that

23

comes is sperm damage.

24

remember.

25

Q.

That is the only thing I can

Are there any cancer effects that hexavalent

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PAGE 23

chromium is associated with?

A.

Yes.

Stomach cancer and small intestine --

small intestine and stomach ulcers, and that is all I can

recall right now.

Q.

And has -- you mentioned earlier that DHHS

developed a Health Base Screening Level for hexavalent

chromium?

A.

Yes.

Q.

What is that level?

10

A.

0.07 micrograms per liter or parts per

11

billion, which I will use "ppb" as a shortcut.

12
13

Excellent.

What is that 0.07 ppb level based

A.

It is based on a reference dose, and it is

on?

14
15

Q.

based on the calculation in the 2L Rule.

16

Q.

Is it based on the one in a million risk

18

A.

Yes.

19

Q.

So we will come back to the calculation in

20

just a second.

21

A.

Sure.

22

Q.

If drinking water contains more than .07 ppb

17

level?

23

of hexavalent chromium, the cancer risk would be greater

24

than one in a million, is that right?

25

A.

That is correct.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 23 of 174

MINA WALLIN SHEHEE, Ph.D.


1

Q.

4/27/16

PAGE 24

And if drinking water contained levels as high

as 20 parts per billion, the risk would be much higher,

is that right?

A.

Yes.

Q.

Do you know off the top of your head what the

cancer risk would be for well water that is contaminated

with 20 parts per billion of hexavalent chromium?

MR. ROBBINS:

Objection.

MR. BARKLEY:

Objection.

10

MS. LeVEAUX:

Objection.

11

THE WITNESS:

No.

12

BY MS. BLAKE:

13

Q.

Is that something that DHHS has calculated?

14

MR. ROBBINS:

Objection.

15

THE WITNESS:

No.

16

BY MS. BLAKE:

17
18

Q.

Does a cancer risk closer to 1 in 3,000 sound

right to you?

19

MS. LeVEAUX:

Objection.

20

MR. ROBBINS:

Objection.

21

MR. BARKLEY:

Objection.

22

THE WITNESS:

It is a -- it is a logarithmic

23

type of increase in risk.

24

numbers.

25

hundred thousand.

I think that the Law 10 of

When you go to .7, the risk is one in one


At 7 it is one ten thousand.

And at

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 24 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 25

70 it is one in a thousand, if said that correct.

a logarithmic or base 10 increase.

BY MS. BLAKE:

4
5

Q.

I see, okay.

But is

When did North Carolina develop

hexavalent chromium screening levels?

A.

2015.

Q.

And I would like to hand you a document to be

marked Exhibit 274.

spreadsheet showing calculations of the one in a million

10

And this is going to be an Excel

risk threshold for hexavalent chromium.

11

(PLAINTIFF-INTERVENOR EXHIBIT 274 WAS

12

MARKED FOR IDENTIFICATION.)

13

I will give you a moment to review.

Just let

14

me know when you have had a chance to familiarize

15

yourself.

16

(Witness peruses document.)

17

A.

Yes.

18

Q.

Do you recognize this Excel spreadsheet?

19

A.

Yes.

20

Q.

And could you briefly state for the record

21
22

what it is?
A.

This is a spreadsheet that was developed by

23

one of our Risk Assessors to calculate different types of

24

carcinogen and non-carcinogen for a contaminant.

25

primarily used for site specific contaminants.

It is

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 25 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2

Q.

4/27/16

PAGE 26

And does this appear to be a fair and accurate

copy of that ---

A.

(Interposing) Yes.

Q.

--- that calculation?

A.

Yes.

Q.

Who was the Risk Assessor?

A.

Sandra Mort.

Q.

And what is her role?

A.

She no longer works with us.

10

Q.

What was her role?

11

A.

She was officially in the Industrial Hygiene

12

Consultant position, which is often used for Health Risk

13

Assessors.

14

Q.

And what were her qualifications for that?

15

A.

She has a Master's degree.

I don't know off

16

the top of my head what it was in.

17

student at North Carolina State University.

18

Q.

And she is a doctoral

And is this the -- if I understand correctly,

19

the standard calculation spreadsheet for determining one

20

in a million health risk?

21

A.

It is used for site specific contaminants and

22

can be adapted to be used for a variety of different

23

scenarios.

24
25

Q.

I see.

And which contaminant do the

calculations relate to here?

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 26 of 174

MINA WALLIN SHEHEE, Ph.D.


1

4/27/16

PAGE 27

(Witness peruses document.)

A.

Source of the Cancer Slope Factor -- it says

midway -- IRIS draft hexavalent chromium document from

2010.

(indicating).

6
7

That is what it is identified as right here

Q.

So this is the calculation for hexavalent

chromium?

A.

Yes.

Q.

And you mentioned that this can be adapted for

10

site specific purposes.

11

modifications were made?

Do you know what site specific

12

A.

I don't know.

13

Q.

Who would know?

14

A.

Sandy Mort.

15

Q.

Would anyone else know?

16

A.

Not off the top of my head, I don't recall.

17

Q.

And I would also like to give you another

18

document to be marked Exhibit 275.

19

(PLAINTIFF-INTERVENOR EXHIBIT 275 WAS

20

MARKED FOR IDENTIFICATION.)

21

(Witness peruses document.)

22

And have you had a chance to take a look at

23

this document?

24

A.

Yes.

25

Q.

Do you recognize this Excel spreadsheet?

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MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 28

A.

No.

Q.

Are you aware of any calculations of the one

in a million cancer risk for hexavalent chromium that

were done by the Division of Waste Management?

A.

No.

Q.

Do you know whether DHHS coordinated with the

Division of Waste Management in ---

A.

(Interposing) Yes.

Q.

--- creating -- I see.

And what role did the

10

Division of Waste Management play in the creation or the

11

calculation of the one in a million standard?

12

MS. LeVEAUX:

Objection.

13

MR. ROBBINS:

Objection.

14

THE WITNESS:

The Division of Waste

15

Management provided us with assistance on the

16

calculation.

17

Management often to make sure that we are using good

18

levels -- Cancer Slope Factors and other such things of

19

the calculation, just to double check to make sure that

20

we are calculating it correctly, you know, within the 2L

21

Standard.

22
23
24
25

We do that with the Division of Waste

BY MS. BLAKE:
Q.

And did the Division of Waste Management

confirm the calculations that DHHS performed?


MR. ROBBINS:

Objection.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 28 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

MS. LeVEAUX:

Objection.

THE WITNESS:

Yes.

BY MS. BLAKE:

4
5

Q.

PAGE 29

Who besides Sandra Mort was involved in the

calculation of the ---

A.

(Interposing) Dr. Ken Rudo.

Q.

And just to clarify, I am speaking about the

calculation of the hexavalent chromium standard, just for

the record.

Was there anyone besides Dr. Ken Rudo?

10

A.

I don't recall.

11

Q.

Do you recall who, at the Division of Waste

12

Management, was also working on confirming this?

13

A.

Yes.

14

Q.

Who was that?

15

A.

Hanna Assefa and Dave Lilley.

16

Q.

And what qualifications does Hanna Assefa

17

have?

18

MS. LeVEAUX:

Objection.

19

THE WITNESS:

I don't know.

20

MS. LeVEAUX:

If she knows.

21

BY MS. BLAKE:

22

Q.

What qualifications ---

23

A.

(Interposing) I don't know.

24

Q.

What qualification does David Lilley have?

25

A.

I don't know.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 29 of 174

MINA WALLIN SHEHEE, Ph.D.


1

Q.

4/27/16

PAGE 30

Was anyone else at the Department of

Environmental Quality involved in the calculation of the

hexavalent chromium standard?

A.

Not that I -- not that I recall.

Q.

Were there any discussions with anyone besides

the two individuals at the Division of Waste Management

-- was there any discussion with anyone at DEQ about the

standard?

MS. LeVEAUX:

Objection.

10

THE WITNESS:

Yes.

11

MS. BLAKE:

12

Q.

Tell me about those discussion.

13

A.

If you could be more specific, it is a broad

14
15

question.
Q.

Were there any discussions with anyone at DEQ

16

about what the appropriate Health Base Screening Level

17

for hexavalent chromium was?

18

MS. LeVEAUX:

Objection.

19

MR. ROBBINS:

Objection.

20

THE WITNESS:

Yes.

21

BY MS. BLAKE:

22

Q.

Were you part of those discussions?

23

A.

Yes.

24

Q.

Can you tell me the names of any individuals

25

at DEQ who were part of the discussions?

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 30 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2
3

A.

PAGE 31

Jay Zimmerman, Connie Brower, Bob Midgette,

Tom Reeder.
Q.

4/27/16

That is all I can recall.

Let's go backwards.

Do you recall what Tom

Reeder's position was on the appropriate hexavalent

chromium screening level?

A.

I don't know what his position was.

Q.

Do you recall what he said in the discussions

about ---

A.

(Interposing) Yes.

10

Q.

What did he say?

11

A.

"Give them what they want."

12

Q.

Who is "they"?

13

A.

DHHS.

14

Q.

And what did DHHS want?

15

A.

They wanted to have the hexavalent chromium

16

level to be at .07 parts per billion -- ppb.

17

Q.

And why did DHHS want that?

18

A.

Because it is health protective.

19

Q.

Do you recall what Jay Zimmerman's statements

20

were in those discussions?

21

A.

No.

22

Q.

What about Connie Brower?

23

A.

Connie Brower wanted us to use the 2L level

24

for vanadium, the IMAC -- I can't recall off the top of

25

my head, but she wanted us to use the 0.3 parts per

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 31 of 174

MINA WALLIN SHEHEE, Ph.D.


1

PAGE 32

billion for vanadium.

2
3

4/27/16

Q.

Did she have any position on hexavalent

chromium?

A.

Not that I recall.

Q.

Did anyone at DEQ offer an alternate numerical

standard for hexavalent chromium?

A.

I can't recall.

Q.

Did anyone at DEQ express any doubts about

the ---

10

A.

(Interposing) Yes.

11

MS. LeVEAUX:

12

BY MS. BLAKE:

Objection.

13

Q.

And this is about the .07 level.

14

A.

Yes, ma'am.

15

MS. LeVEAUX:

16

BY MS. BLAKE:

17

Q.

Objection.

What were some of those doubts?

18

MS. LeVEAUX:

Objection.

19

THE WITNESS:

I don't recall.

20

BY MS. BLAKE:

21

Q.

Do you know who at DEQ expressed doubts?

22

MS. LeVEAUX:

Objection.

23

THE WITNESS:

Bob Midgette, Tom Reeder.

24

Those are the only ones I can remember off the top of my

25

head.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 32 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2
3
4

4/27/16

PAGE 33

BY MS. BLAKE:
Q.

And do you know the general nature of those

statements that you are thinking of?


A.

The only one that I can recall was, "If we

give bottled water to residents, how do we know that the

bottled water doesn't contain a larger number or a higher

concentration of hexavalent chromium as compared to the

water that they are consuming now?"

all I can recall.

That is the only --

10

Q.

And how was that resolved?

11

A.

It was not resolved.

12

Q.

Did either agency review test results of

13

bottled water companies?

14

A.

No.

15

Q.

Are you aware of any bottled water companies

16

that have tested water with more than 20 parts per

17

billion ---

18

A.

(Interposing) No.

19

Q.

--- of hexavalent chromium?

20
21

aware of any bottled water company that had tested --A.

(Interposing) I don't know.

22

MS. LeVEAUX:

Objection.

23

MR. ROBBINS:

Objection.

24

BY MS. BLAKE:

25

Was anyone at DEQ

Q.

Turning back to Exhibit 274, the spreadsheet

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 33 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 34

that was developed by Sandra Mort, do you see the part of

the spreadsheet that says "q1* = carcinogenic potency

factor"?

A.

Yes.

Q.

What is a carcinogenic potency factor?

A.

That would be a toxicologist question.

Q.

Do you know what the source of the

8
9

carcinogenic potency factor was?


A.

It says on the form that "The IRIS draft

10

hexavalent chromium document (2010) & EPA RSL value" is

11

the source of the Cancer Slope Factor.

12

Slope Factor.

13
14
15

Q.

CSF means Cancer

And what is the Integrated Risk Information

System -- the IRIS?


A.

IRIS is a system that -- in a very superficial

16

way that I know of, is where my toxicologists get their

17

information about a contaminant.

18

help them in establishing certain concentrations,

19

depending on the media that is being looked at.

20
21

Q.

And they use that to

And so the IRIS is the standard place that you

would look?

22

A.

Yes.

23

Q.

Is that what EPA looks to to develop its ---

24

A.

(Interposing) I don't know.

25

Q.

And could you take a look at Exhibit 275, the

I don't know.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 34 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 35

spreadsheet that was developed by the Division of Waste

Management, and tell me in your own words what the source

of the carcinogenic potency factor was for those

calculations?

(Witness peruses document.)

A.

It says on the sheet that the "Public Health

Goal for Hexavalent Chromium in Drinking Water,

California EPA, July 2011, found at" a link that is

referenced.

10

Q.

And does it also, a little bit further down,

11

refer in addition to the Integrated Risk Information

12

System?

13

(Witness peruses document.)

14

A.

I -- can you ask the question again?

15

Q.

Yes, certainly.

Do there appear to be any

16

other sources in the rows below the source that you just

17

read?

18

A.

Yes, there is one right here (indicating).

19

Q.

And what is that additional source?

20

A.

It is Journal of Applied Toxicology.

21

Q.

Okay.

22

And there is also reference to the

Integrated Risk Information System?

23

A.

Yes.

24

Q.

And so does it appear that using slightly

25

different sources, the calculations came to the same

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 35 of 174

MINA WALLIN SHEHEE, Ph.D.


1

4/27/16

PAGE 36

result of .07 ppb?

MR. ROBBINS:

Objection.

MR. LONG:

Objection.

MS. LeVEAUX:

Objection.

THE WITNESS:

According to the GWQS -- I

have to look at this carefully -- how many zeros they

put.

It appears to be the same number on the sheets.

8
9

BY MS. BLAKE:
Q.

And backing up a little bit, what

10

qualifications does a person need in order to be able to

11

calculate something like the one in a million risk

12

threshold for a contaminant?

13

they need?

14
15
16

A.

What degrees or training do

I don't think there is an established degree

or a training criteria.
Q.

Can anyone come up with a cancer factor?

17

MS. LeVEAUX:

Objection.

18

THE WITNESS:

I can only speak for my group.

19

I can't speak for other groups.

20

BY MS. BLAKE:

21

Q.

Okay.

In your group, who has the training ---

22

A.

(Interposing) Well, we hire someone as a Risk

23

Assessor in the Division of Public Health, either someone

24

with a Bachelor's -- it depends on the position.

25

is an Industrial Hygiene Consultant, the OSHR will have

If it

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 36 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 37

certain requirements for that position.

In DHHS, we have

shifted from using the Industrial Hygiene Consultant

position to the Environmental Program Consultant because

it has a better listing of qualification that meets the

needs that we need for a Risk Assessor in Public Health.

So we use the OSHR qualifications for people.

If they meet those qualifications, then they can get

through the system.

Risk Assessor.

10
11

And we will look at them to be a

So we follow OSHR minimum requirement

guidelines for hiring practices.


Q.

And, I guess, are there any particular areas

12

of expertise that are in those qualifications in those

13

guidelines?

14

A.

For my group only, if you are a Risk Assessor,

15

we would like you to have some Public Health Risk

16

Assessment experience.

17

like to have.

18

Q.

It is not required, but we would

And did the individuals who developed the

19

Health Base Screening Level for hexavalent chromium meet

20

those qualifications?

21
22

A.

I can only speak for my group only.

Sandra

Mort, yes, and Ken Rudo, yes.

23

Q.

Is there anyone else in DHHS who has those

24

qualifications?

25

A.

We have recent hires.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 37 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 38

Q.

Who are those individuals?

A.

Beth Dittman, Jamie Pritchett -- he is a

3
4
5
6

temporary -- and Kennedy Holt, who is also a temporary.


Q.

And what position does Dr. Randall Williams

hold at DHHS?
A.

He is the Deputy Secretary for the Department

of Health and Human Services.

Health Director.

9
10

Q.

He is also the State

And does he have the qualifications to make a

Risk Assessment?

11

A.

I don't know all of his qualifications.

12

Q.

What qualifications do you know of?

13

A.

He is a medical doctor.

14

Q.

What kind of medical doctor?

15

A.

He is an OB/GYN.

16

Q.

Do you know of any Risk Assessors that have

That is all I know.

17

been employed at DHHS during your time there that are no

18

longer at DHHS, aside from Sandra Mort?

19

A.

I don't recall.

20

recall right now.

21

Williams.

That is the only one I can

I want to correct that.

Lou Ann

22

Q.

Do you recall what her position was?

23

A.

She was an Environmental Toxicologist.

24

Q.

And how long ago did she leave DHHS?

25

A.

It has been awhile.

I don't know the exact

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 38 of 174

MINA WALLIN SHEHEE, Ph.D.


1

4/27/16

PAGE 39

year, but it has been a while.

Q.

Do you know why she left?

A.

She went to work in the Pharmacy at the

4
5
6

University of North Carolina, Chapel Hill.


Q.

Are cancer potency factors ever based on

studies on animals?

A.

Yes.

Q.

Why is that?

A.

I don't know why.

10

Q.

Is it standard scientific practice to rely on

11

animal studies?

12

A.

Yes.

13

Q.

As a general matter, are experimental studies

14

preferable to non-experimental studies?

15

MR. LONG:

Object to the form.

16

MS. LeVEAUX:

Objection.

17

THE WITNESS:

What is "non-experimental

18

studies"?

19
20

I am not sure what you mean by that.


BY MS. BLAKE:

Q.

Something like a correlational study?

21

MR. LONG:

Same objection.

22

MS. LeVEAUX:

Objection.

23

THE WITNESS:

I don't recall, but there is

24

an order in which you do things.

25

this time.

I don't recall that at

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 39 of 174

MINA WALLIN SHEHEE, Ph.D.


1

4/27/16

PAGE 40

BY MS. BLAKE:

Q.

Are you aware of any experimental studies

where groups of humans are randomized and some are

exposed ---

A.

(Interposing) No.

Q.

--- to carcinogens?

scientific practice?

8
9

A.

I don't know how to answer that question

because I don't understand the question.

10
11

Would that be sound

Q.

Maybe a better question would be, would it be

ethical ---

12

A.

(Interposing) To experiment on humans?

13

Q.

Yes, with potential carcinogens?

14

A.

No.

15

Q.

Are there any experimental studies in rats and

16

mice for hexavalent chromium?

17

A.

Yes.

18

Q.

Did the individuals at DHHS who developed the

19

hexavalent chromium standard consider those studies in

20

setting the standard?

21

A.

You will have to ask the toxicologist.

22

Q.

Do you know whether the risk of cancer from

23

hexavalent chromium is based only on mice studies and not

24

on ---

25

A.

(Interposing) I don't recall.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 40 of 174

MINA WALLIN SHEHEE, Ph.D.


1

Q.

4/27/16

--- human studies?

PAGE 41

Is it true that the

National Toxicology Program of the U.S. Department of

Health and Human Services has stated that hexavalent

chromium is known to be a human carcinogen based on

sufficient evidence of carcinogenicity from studies in

humans?

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

Studies in humans?

10
11

No.

BY MS. BLAKE:
Q.

You aren't aware of that statement?

12

MR. ROBINS:

Objection.

13

MS LeVEAUX:

Objection.

14

THE WITNESS:

No, just rats and mice.

I am

15

familiar with the animal studies but not with any human

16

studies.

17

BY MS. BLAKE:

18

Q.

Okay.

19

A.

And I want to clarify that statement.

20
21

For

oral ingestion, not inhalation.


Q.

So you aren't familiar with the correlational

22

studies in other countries showing increased cancer

23

levels when individuals are exposed to hexavalent

24

chromium in water?

25

MR. ROBBINS:

Objection.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 41 of 174

MINA WALLIN SHEHEE, Ph.D.


1

THE WITNESS:

BY MS. BLAKE:

Q.

4/27/16

PAGE 42

No.

In setting the screening level for hexavalent

chromium, did DHHS consider the cumulative effects of

pollutants and hexavalent chromium?

A.

That would be a question for my toxicologist.

Q.

So the toxicologist would be the one charged

with making that determination of whether to consider ---

A.

(Interposing) Yes.

10

Q.

--- cumulative effects?

11

A.

He is my expert.

12

Q.

Are you familiar with the general concept that

13

pollutants -- when individuals are exposed to multiple

14

pollutants, those can have a synergistic effect that can

15

increase the risk beyond ---

16

A.

(Interposing) Yes.

17

Q.

--- just the effects of the pollutants?

18

A.

Yes.

19

Q.

Do you know how large this effect can be?

20

A.

No.

21

Q.

Are you aware of studies showing that it can

22

increase the risk by a factor of 4?

23

VOICE:

Objection.

24

THE WITNESS:

No.

25

BY MS. BLAKE:

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1

Q.

4/27/16

PAGE 43

In setting the hexavalent chromium screening

level did your toxicologist consider sensitive

sub-populations?

A.

Yes.

Q.

Do you know which categories the ---

A.

(Interposing) Children.

Q.

Did they consider pregnant mothers?

A.

That would be a question for my toxicologist

to answer.

10
11

Q.

Do you know of any other specially vulnerable

populations that they would ---

12

A.

For what contaminant?

13

Q.

--- consider?

14

A.

Not off the top of my head, no.

15

Q.

So we have been at this for about an hour,

16

For hexavalent chromium?

would you like to take a short five minute break?

17

A.

Yes.

18

MS. BLAKE:

19

(A BRIEF RECESS WAS TAKEN.)

20

MS. BLAKE:

21

BY MS. BLAKE:

22

Q.

OFF THE RECORD.

ON THE RECORD.

10:16 A.M.

10:24 A.M.

Dr. Shehee, what was your role in the

23

development of the hexavalent chromium Health Screening

24

Level?

25

A.

My role for -- we call this a project.

I am

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going to refer to this as the project because, in our

eyes, it is a specific project.

provide resources, to provide guidance and making sure

that people stayed within their lanes.

by that is that they did their jobs, only their jobs, and

don't go outside the bounds of their job.

7
8
9
10
11
12

My role in this was to

And what I mean

Q.

Can you give me an example of staying in the

A.

Staying in the lane is like, you do the risk

lane?

assessment and do the risk assessment alone.


Q.

What are some examples of things that the

individuals doing the risk assessment would not do?

13

A.

A Risk Management decision.

14

Q.

What is a Risk Management decision?

15

A.

Is an action or something that is outside the

16

bounds of the guidance that we were given.

And we

17

wouldn't want to do anything outside the guidance that we

18

were provided by our leadership.

19

Q.

And what guidance were you provided?

20

A.

What standards to use.

21

Q.

And what were those standards?

22

A.

To use the 2L Rules in making the health risk

23
24
25

evaluation and the Health Screening Levels that we used.


Q.

And would that include the six criteria that

we were speaking about earlier?

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A.

Yes.

Q.

The one in a million risk thresholds?

A.

Yes.

Q.

And under the 2L Rules, and under this

guidance that you were given, would you choose the most

protective of the criteria listed?

A.

Yes.

Q.

And so if the one in a million risk threshold

9
10

was more protective than, for example, the MCL, you would
use the one in a million risk threshold?

11

LeVEAUX:

Objection.

12

MR. ROBBINS:

Objection.

13

THE WITNESS:

The hexavalent chromium does

14

not have an MCL.

15

doesn't have an MCL, then we use the 2L standards, if

16

they don't have a 2L, then we use the IMAC.

17

have an IMAC, then we use the calculation.

18

If we don't

BY MS. BLAKE:

19
20

So, therefore, under the criteria if it

Q.

So was there any more specific guidance given,

other than following the 2L Rules?

21

A.

I don't recall.

22

Q.

And who was the guidance given by?

23

A.

My boss, Dr. Megan Davies.

24

Q.

And was she responding to guidance from anyone

25

else?

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A.

I wouldn't -- I don't know.

Q.

And you earlier mentioned Risk Management

decisions.

what a Risk Management decision would be?

A.

Can you give me some additional examples of

It would depend on the circumstances, but in

general, in the Risk Management/Risk Assessment

framework, risk assessment or health screening is a very

small part of the entire Risk Management framework.

Risk Management framework is where decisions are made as

The

10

far as actions to be taken.

11

considers social factors and it considers a lot of

12

different criteria for risk managers to make decisions

13

regarding the risk assessment.

14

assessment is to provide information to risk managers.

15
16
17

Q.

It considers economics, it

The purpose of the risk

And who are some of the risk managers who were

involved in the hexavalent chromium?


A.

The initial one would be me.

That would be

18

the basic one, to make sure that the risk assessment was

19

information that could be given to the risk managers.

20

could be any policy maker.

21

evaluations are made, the ultimate risk manager is the

22

well owner -- the person who drinks the well water.

23

is the ultimate risk manager.

It

And the way health risk

24

Q.

And you said that you were the ---

25

A.

(Interposing) Initial.

That

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2
3

Q.

4/27/16

PAGE 47

--- initial risk manager.

What decisions did

you make as the initial risk manager?


A.

Making sure that procedures were followed.

Making sure that we vetted our number and our

calculations.

Control verified our number for Cancer Slope Factor, and

such procedural things like that.

procedures were being followed, and that my people did

follow those procedures.

Making sure that the Centers for Disease

Making sure the

10

Q.

And the CDC did verify the number?

11

A.

They -- the Cancer Slope Factor was -- and I

12

don't recall the exact wording, but yes.

13

Q.

And that was for hexavalent chromium?

14

A.

Yes.

15

Q.

And are there any other risk managers who have

16

made decision related to hexavalent chromium since

17

that ---

18

A.

19

one I know of.

20

Environmental Quality.

21

ones who requested the information from us.

22

Q.

(Interposing) At my level, that is the only


Our customer was the Department of
And we provided -- they are the

And when you say you were the initial risk

23

manager, what time frame was that for hexavalent

24

chromium?

25

A.

I would say between November of 2014 to March

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1

of 2015.

Q.

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PAGE 48

And what happened in November of '14 that

initiated the process?

A.

That was when we started getting verbal

concerns from the Regional Office for DEQ about

hexavalent chromium and community concerns.

Q.

Can you describe those concerns?

A.

I don't recall.

I don't recall exactly.

It

was just the statement "community concerns."

10

Q.

Were these communities around coal ash ponds?

11

A.

The concerns about hexavalent chromium were

12

surrounded by sampling that was done by the Riverkeeper

13

and Duke Energy.

14

of my knowledge on that.

That is all I know.

That is the extent

15

Q.

Do you remember which Regional DEQ office?

16

A.

I don't recall off the top of my head.

17

Q.

And you said that your initial role as Risk

18

Manager ran from November 2014 to March of 2015.

19

happened ---

20

A.

(Interposing) For hexavalent chromium.

21

Q.

For hexavalent chromium.

22

What

What happened during

that time period?

23

A.

During that time period, we met with DENR, or

24

DEQ.

We talked about sampling.

25

detection limits.

We talked about

We talked about how this information

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2
3
4

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should be conveyed to the public.


Q.

And what was said about how the information

should be conveyed to the public?


A.

The information conveyed to the public is our

current Health Risk Evaluation that was sent to the

homeowners through DENR.

It is an adjustment for me.

And when I say DENR: and DEQ.


I mean the same agency.

Q.

For all of us.

A.

Yes.

10

Q.

And can you tell me a little bit more about

11

the discussions that went into the Health Risk

12

Evaluation?

13
14
15
16

A.

That is a big -- they were big discussions.

If you could be more specific, that would be helpful.


Q.

Sure.

What was DEQ's position on the Health

Risk Evaluations?

17

MS. LeVEAUX:

Objection.

18

THE WITNESS:

That is a big question, also.

19

Can you be more specific, please?

20
21

BY MS. BLAKE:
Q.

I guess a place to start would be who came up

22

with the idea to send Health Risk Evaluations to the

23

residents whose wells tested higher on the screening

24

levels?

25

A.

I -- say that question again.

I didn't catch

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2

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all of that.
Q.

Who made the decision or who proposed the idea

of sending Health Risk Evaluations to the individuals who

had the contamination in their wells?

A.

That would be our office.

It was -- the

Health Risk Evaluations in patterned by our new Well

Water Health Evaluations, which are forms that we have

used for several years vetted, through our local health

departments, and have been used for the constituents for

10
11

the new well water rule.


Q.

And did anyone at the Department of

12

Environmental Quality express any reservations about

13

sending the Health Risk Evaluations ---

14

A.

I wouldn't know ---

15

MS. LeVEAUX:

Objection.

16

THE WITNESS:

I wouldn't have -- I wouldn't

17

know about reservations.

18

BY MS. BLAKE:

19
20

Q.

Who at DHHS would know about any reservations

that DEQ had?

21

MS. LeVEAUX:

Objection.

22

THE WITNESS:

I don't know.

23

BY MS. BLAKE:

24
25

Q.

But DEQ would not have conveyed those

reservations to you?

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MS. LeVEAUX:

Objection.

THE WITNESS:

It depends on what your term

-- can you explain what you mean by "reservations"?

4
5
6

BY MS. BLAKE:
Q.

Sure.

Any disagreement about the Health Risk

Evaluations.

MS. LeVEAUX:

Objection.

THE WITNESS:

I wouldn't say disagreement.

BY MS. BLAKE:

10

Q.

Any changes that they thought should be made?

11

A.

Yes.

12

Q.

What were some of the changes?

13

A.

They wanted to put on the form -- on the

14

bottom of the form, where it talked about the hexavalent

15

chromium and the MCL and the Safe Drinking Water Act.

16

would have to look at the form to repeat everything else

17

on there.

18
19

Q.

And did that ultimately end up on the Health

Risk Evaluations ---

20

A.

(Interposing) Yes.

21

Q.

--- that went out to residents?

22

A.

Yes.

23

Q.

And could you state generally what it says

24
25

about hexavalent chromium and MCL's?


A.

The only thing I recall is that we recommend

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PAGE 52

not to use your water for drinking or cooking.

2
3

4/27/16

Q.

When did those Health Risk Evaluations first

go out to residents at ---

A.

(Interposing) I don't know the exact date.

The initial ones went out approximately in the month of

May.

Q.

And you said that you were the Risk Manager

for hexavalent chromium until March of 2015.

else become the Risk Manager after March of 2015?

10
11
12
13

A.
concerned.
Q.

Did someone

A Risk Manager as far as the calculation was


I will clarify that.
And so were the calculations concluded in

March of 2015 for hexavalent chromium ---

14

A.

(Interposing) To the best of my knowledge.

15

Q.

And what was that final decision on the Health

16

Screening Level calculations for hexavalent chromium?

17

A.

0.07 part per billion.

18

Q.

And that was the screening level that you

19
20

approved?
A.

That was the screening level that we

21

recommended and went through a vetting process by which

22

we informed our Risk Managers and -- all the way up the

23

Department, and made sure that the calculations were --

24

in using that 2L formula that is listed there, and making

25

-- you know, and vetting that with the Division of Waste

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Management, and then vetting our Cancer Slope Factor with

CDC -- Center for Disease Control and Prevention --

and ---

Q.

So it sounds like it was heavily vetted?

A.

Yes.

Q.

And who within DHHS made the final approval of

that screening level?

8
9
10

A.

The approval process at the Department was

made through a -- I don't know what word to call it -but scrutiny by our legal counsel.

11

Q.

And just to make sure I am understanding

12

correctly, did the legal counsel have the final say in

13

the approval of the hexavalent chromium screening level?

14

MR. ROBBINS:

Objection.

15

THE WITNESS:

The final approval of that

16

project -- I don't know.

17

counsel on that process.

18

BY MS. BLAKE:

19

Q.

I don't know the role of

And so who had to give the project the stamp

20

of approval before the Health Risk Evaluations were sent

21

out?

22

A.

It would be departmental.

I would -- I am

23

assuming certain things.

People that I can't recall a

24

specific name.

25

exactly the Secretary came up to me and then said that.

For example, I can't say that it was

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It went up and down the chain of command.

So I -- you

know, that is -- I didn't hear the exact words, you know,

that the Secretary approved of this.

the Secretary's office, and we scrutinized and vetted

through our legal counsel.

We did go through

Q.

And who was the Secretary at that time?

A.

Dr. Wos.

Q.

So just making sure I understand, was it a --

it sounds like it wasn't a single person who gave a final

10

approval.

Was it more of a consensus within the

11

Department?

12

A.

Yes.

13

Q.

And since there are two departments here, the

14

Department of Health and Human Services?

15

A.

Yes.

16

Q.

Did the Department of Environmental Quality

17

object in any way to the screening level for hexavalent

18

chromium?

19
20
21

A.

Can you be more specific?

The word

"objection," it is a very broad -- it is very broad.


Q.

Well, let's see.

Backing up a little bit,

22

what level of review did the Department of Environmental

23

Quality have of the screening level for hexavalent

24

chromium?

25

A.

The Department of Environmental Quality,

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number one, requested that we provide this to them.

Number two, the Division of water Resources -- or Waste

Management vetted our calculations on their process.

Q.

And so once the Department of Health and Human

Services had decided that .07 was the appropriate

screening level for hexavalent chromium, after the

vetting process, did the Department of Environmental

Quality have anything further to say?

A.

I don't recall.

10

MS. LeVEAUX:

Objection.

11

THE WITNESS:

I don't recall.

12

BY MS. BLAKE:

13
14

Q.

And you said that the Department of

Environmental Quality was the customer in this situation?

15

A.

That is correct.

16

Q.

Can you explain that a little bit more?

Was

17

the Department of Health and Human Services preparing the

18

hexavalent chromium screening level on behalf of the

19

Department of Environmental Quality?

20

A.

The Department of Health and Human Services

21

provides health risk evaluations on its own regard.

22

reason for that is ours is health based and

23

non-regulatory, and are health protective.

24

-- we have a variety of different customers.

25

health risk evaluations can have several customers.

The

The request
Sometime

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For example, we may get the request from an

agency -- for an agency type risk evaluation.

case, the Division of Water Resources requested -- Jay

Zimmerman requested assistance on that, and we agreed.

And the process by which these risk evaluations -- the

Department of Environmental Quality did not change our

risk, you know, assessments, but were brought along with

their documentation that they were -- that they provided

to the well owner.

10

In this

So we were -- they provided -- they asked us

11

to do this thing.

And then we provide the information.

12

And they mailed it out.

13

Quality -- as far as the process goes, they just attached

14

what we gave them and made sure it went to the right

15

homeowner.

The Department of Environmental

16

Q.

Who at DHHS signed the Health Risk Evaluation?

17

A.

We normally don't sign Health Risk

18

Evaluations, only formal Risk Assessments.

19

form on that is reviewed by two people.

20

Assessor and Toxicologist and they switch off.

21

at each others, making sure that the report that is

22

given and that the Department of Environmental Quality

23

gets us the results of -- the well results, and that we

24

-- you know, we review them.

25

Q.

The Health

We have one Risk


They look

Does the Department of Health and Human

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Services consider economic factors ---

A.

(Interposing) No.

Q.

--- in any way?

So the Department of Health

and Human Services came up with the .07 part per billion

hexavalent chromium risk threshold in March of 2015 or

thereabouts?

A.

Approximately.

Q.

Or finalized it?

A.

Yes, approximately.

10

Q.

Has the Department of Health and Human

11

Services changed its conclusion that .07 is the

12

appropriate one in a million risk threshold for

13

hexavalent chromium?

14

A.

No.

15

Q.

Has DHHS revoked the Health Screening Level

16

for hexavalent chromium?

17

A.

No.

18

Q.

So the safe drinking water level for

19

hexavalent chromium remains .07 parts per billion?

20

MR. LONG:

Objection.

21

MR. ROBBINS:

Objection.

22

THE WITNESS:

Yes.

23

BY MS. BLAKE:

24
25

Q.

Did DEQ ask DHHS to change the Health

Screening level for hexavalent chromium?

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A.

I don't know.

Q.

They did not, to your knowledge?

A.

Not to my knowledge.

Q.

Can you describe the health problems

5
6

associated with vanadium?


A.

Oh, let's see.

What I recall is that vanadium

has a non-cancer end point.

this morning, I am just blanking out on that.

don't recall.

10
11

PAGE 58

Q.

That is fine.

And right now, at this -And I

Is vanadium a possible

carcinogen?

12

A.

I don't recall.

13

Q.

Did DHHS develop a Health Screening Level for

14

vanadium?

15

A.

Yes.

16

Q.

When did that process begin?

17

A.

November, 2014.

18

Q.

Same time ---

19

A.

Before 2000 -- it was before November 2014.

20

Precisely when -- what month before then, I don't know.

21

Q.

And how did that process begin?

22

A.

The process began by our toxicologist

23

informing me that the vanadium level should be set at a

24

higher standard in the information that he has.

25

is about all I know about the process -- the initial

And that

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process of that.

I mean, the project, the standards by which we were going

to evaluate for the Health Risk Evaluations would be

strictly the process I outlined before where we look at

the MCL, we look at the 2L, we look at the IMAC.

Once the agreement to do hexavalent --

I was not really involved with that initial

process.

I was just more informed of it, you know,

because it was spits and spatters.

an issue for us at that time.

And it really wasn't

But once guidelines --

10

guidance came down and decided that -- to use the 2L, we

11

stayed in our lane.

12
13

Q.

We stayed in our lane.

So you said that there was a toxicologist who

was working on this.

Who was that toxicologist?

14

A.

Ken Rudo.

15

Q.

And you said you were not heavily involved in

16

the initial stages?

17

A.

That is correct.

18

Q.

Who was the Risk Manager who was involved in

19

the initial stages?

20

A.

That would be -- that would be me.

21

Q.

And backing up a little bit, does North

22

Carolina have an IMAC for vanadium?

23

A.

Yes, .3.

24

Q.

Why is that IMAC set at .3 parts per billion?

25

A.

I don't know exactly why it is .3.

I -- I

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would be speculating.

Q.

Who at DHHS would know?

A.

Dr. Rudo.

Q.

And do you know approximately when the IMAC

for vanadium was created?

A.

I don't recall.

Q.

Did you have any role in the development of

the IMAC?

A.

No.

10

Q.

Did anyone at DHHS?

11

A.

I don't know.

12

Q.

And you said that Dr. Rudo determined that the

13
14
15

vanadium standard should be higher.


A.

What does that mean?

Dr. Rudo informed me that the Health Screening

Level for vanadium should be 18 parts per billion.

16

Q.

What was that based on?

17

A.

I don't recall.

18

Q.

And that was around the time frame of 2014?

19

A.

Fall of 2014, before we got the request from

20
21
22
23
24
25

the Department of Environmental Quality for the project.


Q.

And when did the request from the Department

of Environmental Quality --A.

(Interposing) Verbal -- verbal discussions

were at the end of November 2014.


Q.

And what specifically was the request that DEQ

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made?

A.

The Department -- I don't recall the details,

but I recall that they requested that we provide them

Health Risk Evaluations for this project.

5
6

Q.

Can you walk me through the process of

developing the Health Risk Evaluations for vanadium?

A.

Once we got our information and guidance, I

recommended to use the 2L.

use that particular process for vanadium, then it was --

10

we were going to be using that, but we wanted to talk to

11

DEQ first before we -- you know, we wanted to talk to

12

DENR about -- that the level, we thought, was too low.

13

Q.

14

conversations?

15

A.

Once we -- we were going to

And what was the result of those

Conversations of that is that the Department

16

of Environmental Quality wanted us to use the published

17

IMAC, and we agreed.

18
19

Q.

And why did you agree to use the published

A.

My toxicologist spoke with Connie Brower.

IMAC?

20

And

21

he said to me that she had a -- a paper that she had.

22

And he read it, and he felt that the .3 was the way to

23

go.

24

Q.

Do you know what the paper was?

25

A.

I have no idea.

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2
3
4

Q.

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PAGE 62

And when did DHHS finalize the .3 parts per

billion standard?
A.

I don't recall the exact month, but it was at

the very beginning.

Q.

Of 2015?

A.

Yes.

Q.

And who, besides yourself and Dr. Rudo, were

involved in the creation of the .3 parts per billion

standard?

10
11
12
13

A.

We did not create the standard.

We agreed to

use the published IMAC.


Q.

Who else at DHHS was involved in that

decision?

14

A.

I don't recall if there were others.

15

Q.

Who else at DEQ was involved?

16

A.

The only -- when we talked about the vanadium

17

level I recall Connie Brower in the meeting, and Jay

18

Zimmerman.

19

Q.

Was Tom Reeder in any of the meetings?

20

A.

No.

21

Q.

Do you know why Tom Reeder was involved in the

22

hexavalent chromium meetings but not the vanadium?

23

MS. LeVEAUX:

Objection.

24

THE WITNESS:

No.

25

BY MS. BLAKE:

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 62 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2

Q.

4/27/16

PAGE 63

Has DHHS changed its conclusion that .3 ppb is

the appropriate Health Standard for vanadium?

A.

We have not changed our position.

Q.

Have you been asked by anyone to change your

5
6

position?
A.

In May of 2015, Connie Brower sent me an

e-mail suggesting that -- do you want to change the

vanadium.

And at that time, we said no.

Q.

Why did she ask you to change the vanadium?

10

A.

Because we were doing re-sampling and other

11

types of HRE's still pending to be sent out, and we

12

didn't want to change mid-course.

13

Q.

Do you know why she ---

14

A.

(Interposing) No.

15

Q.

--- why she wanted you to change?

16

A.

No.

17

Q.

What level did she want you to change it to?

18

A.

She did not state a level.

19

Q.

Did she want you to make it a higher, less

20

protective level?

21

MR. ROBBINS:

Objection.

22

THE WITNESS:

I don't know.

23

state in the e-mail.

24

you need to change it to this, no.

25

No.

It didn't

I don't recall in the e-mails that

BY MS. BLAKE:

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 63 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2

Q.

4/27/16

PAGE 64

Since that time has anyone asked DHHS to

change the .3 ppb vanadium Health Screening Level?

A.

No.

Q.

Does DHHS have any plans to change the .3 ppb

A.

No.

Q.

So just to sum up, .3 ppb for vanadium remains

level?

the Health Protective Standard?

A.

Yes.

10

Q.

And does the IMAC for vanadium also remain in

12

A.

I don't know.

13

Q.

Would it ever make sense to have a Health

11

14
15
16
17

place?

Screening Level that was different from an IMAC?


A.

I -- I don't know how to answer that question.

Can you restate that question?


Q.

Sure.

Does the process for developing a

18

Health Screening Level, in terms of the criteria that you

19

look at, differ from the process of setting an IMAC?

20

feel free to ---

21

A.

And

Yes, it is -- the 2L Standard, the way it

22

states there, you can petition the Division Director to

23

consider.

24

would have to look at it really closely if you want the

25

exact wording.

I believe that is what it says in there.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 64 of 174

MINA WALLIN SHEHEE, Ph.D.


1

Q.

4/27/16

No, that is okay.

PAGE 65

I guess the question that I

am trying to get at is, in terms of the six criteria that

you look at for setting a 2L Standard and for setting the

Health Screening Level, do you look at those same

criteria to set an IMAC?

A.

It depends on the constituent, and it depends

on the health outcome and -- for example, we know that

Cancer Slope Factors and Risk is made for carcinogens,

and vanadium doesn't have any known -- it has a

10
11
12
13

non-cancer end point.


Q.

But would you look at the same six factors and

see which ones apply to vanadium?


A.

Normally what we would do is if we had a -- we

14

don't make the rules and we don't set the standards.

15

would recommend and say -- and show what we have.

16

would be -- we don't have the regulatory authority or the

17

authority to set standards.

18

purposes, but we are not -- we don't have the authority

19

to create any things that process goes through.

20

So the process by which those decisions are


made, we can provide evidence.

22

discernment for those levels.

24
25

And it

We can use them for health

21

23

We

Q.

But we can't make the

Are the 2L Groundwater Standards, as a general

matter, meant to be health protection levels?


A.

Normally, they are.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 65 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2
3

Q.

4/27/16

PAGE 66

Do they take into account things like cost or

feasability?
A.

I don't recall.

I don't know.

I don't know.

I am not involved with the process, so whether or not

other factors -- I do know that health is part of that

process.

Q.

I would like to talk a little bit about the

testing of the residential wells around Duke Energy's

coal ash ponds.

10

A.

Okay.

11

Q.

Are you familiar with the well testing that

12

occurred around Duke Energy's coal ash ponds?

13

A.

I have a superficial knowledge.

14

Q.

What is your knowledge of what happened?

15

A.

We were given -- we didn't do sampling.

We

16

provided the Department of Environmental Quality

17

detection limits for hexavalent chromium.

18

information for re-sampling, if it needed to be

19

resampled, so we could complete a Health Risk Evaluation.

20

But as far as how they did it and all of that, that was

21

DEQ's responsibility, not ours.

22
23
24
25

Q.

We provided

Do you recall what the detection limits were

that you provided for hexavalent chromium?


A.

I don't remember off the top of my head.

don't recall.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 66 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2

Q.

4/27/16

PAGE 67

Is it important that the tests be able to test

to the level of the Health Protective Standards?

A.

Yes.

Q.

Are you familiar with the outcome of the

testing of the residential wells?

test results that were sent?

Did you see the well

A.

I spot checked a few.

Q.

Do you know the approximate highest level

10

A.

(Interposing) No.

11

Q.

--- contaminants?

12

A.

We have information that we provided the

of ---

13

Department of Environmental Quality on a number of wells,

14

not HRE's, because the numbers are different, and by

15

certain risk levels.

16

to our leadership and also to the Department of

17

Environmental Quality so they could see where people --

18

the number of wells.

19

numbers.

20

Q.

21

And that information was provided

And I just don't remember the

I can't give you exact numbers.


Do you recall levels of hexavalent chromium

that were higher than 20 parts per billion?

22

A.

There were several.

23

Q.

And what about for vanadium; do you recall any

24
25

high levels of vanadium?


A.

I don't recall.

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MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 68

MS. BLAKE:

If we could go off the record.

MS. BLAKE:

OFF THE RECORD.

(A DISCUSSION WAS HELD OFF THE RECORD.)

MS. BLAKE:

BY MS. BLAKE:

Q.

ON THE RECORD.

11:04 P.M.

11:05 A.M.

Is it true that if the Federal Government says

that water is safe to drink, then the water is safe to

drink?

A.

Yes.

10

Q.

Are there any instances where this is not

12

A.

Can you be more specific?

13

Q.

Are there any instances where water has not

11

true?

14

been safe to drink but the Federal Government has either

15

said it is safe to drink or has ---

16
17
18

A.

(Interposing) Not that -- I don't know.

don't know.
Q.

What about situations where the Federal

19

Government has not yet come up with a safety standard for

20

a contaminant?

21

A.

Yes, I think ---

22

Q.

Well, let me rephrase the question.

If a

23

contaminant is present in water at levels above a safety

24

threshold, but the Federal Government has not set a

25

safety standard for that contaminant yet, does that mean

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 68 of 174

MINA WALLIN SHEHEE, Ph.D.


1

4/27/16

PAGE 69

that the water is safe to drink?

MR. LONG:

Objection.

MR. BARKLEY:

Objection.

MS. LeVEAUX:

Objection.

THE WITNESS:

It depends on the actions that

are taken at Risk Management.

BY MS. BLAKE:

Q.

And what kind of actions?

A.

And that decision -- Risk Management decisions

10

take into account the Risk Assessment.

11

Assessment provides the information on the health levels.

12

Safe levels -- the interpretation of safe levels is made

13

by Risk Managers and policy makers.

14

the ramifications.

15

And the Risk

They consider all

For example, when you have someone who does

16

not have an adequate quantity of water, you start

17

introducing other risks.

18

when a risk policy maker may want to consider setting

19

that level higher for what is considered safe.

20

not a decision made out of my office.

21

was strictly looking at screening levels, not the

22

determination of safe.

23
24
25

Q.

That would be an example of

That is

Our role in this

So the screening level is -- are you saying

that that is not a safety determination, or --A.

(Interposing) It is a protective level at

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MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 70

which we wound not expect any health -- adverse health

outcomes.

3
4

Q.

And to a layperson, that might sound like a

safety threshold.

Is that ---

A.

I don't know.

Q.

So you said that policy makers might come up

7
8
9

with a different threshold?


A.

Policy makers -- Risk Managers will base

actions and policy based on the information it was given

10

to by the Risk Assessment.

11

the single overriding part of Risk Management.

12

piece of that process.

13

other criteria in the process by determining what is the

14

level of safe.

15

Q.

16
17

The Risk Assessment is not


It is a

Risk Managers may elect to have

And can you give me an example of some other

criteria that they might use?


A.

They may use economic.

They may use politics.

18

They may use social factors.

There may be other health

19

-- unintended consequences for health, like I mentioned

20

when you take people off of water for a long period of

21

time, and you limit their quantity, you start introducing

22

other types of risks into the process.

23

balance a lot of different things for Risk Managers.

24

so the piece that we provide is only a very small part of

25

the big picture.

So you have to
And

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 70 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2

Q.

4/27/16

PAGE 71

So when you say that "when people are taken

off of water," are you thinking of any specific examples?

A.

No.

Q.

Has anyone, to your knowledge, been taken off

5
6

of water around the coal ash ponds?


A.

I want to correct that statement.

It is not

taken off of water; it is recommend not to use.

person elects not to use their water, based on our

recommendation, you know, that is -- and I have lost my

10
11

train of thought.
Q.

When a

Sorry, go ahead.

So you are saying that when DHHS recommends

12

that someone does not use their water, that that can have

13

health effects?

14

A.

You can introduce possible health effects.

15

For example, when people -- there could be -- especially

16

water quantity.

17

diseases into the process.

18

those that you don't have an adequate amount of water to

19

do basic sanitation and household cleaning.

20

could be as much as, you know, not washing your hands as

21

much, and other type of water contact type of activities

22

for cleanliness.

23

things can be brought in.

24

situation.

25

Q.

You start introducing water wash


And water wash diseases are

And this

And so, you know, a lot of different


And it depends on the

And what are some of the economic

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 71 of 174

MINA WALLIN SHEHEE, Ph.D.


1

4/27/16

PAGE 72

considerations that might ---

A.

(Interposing) I don't ---

Q.

--- come into play?

A.

I don't know.

Q.

And you said "policy makers."

Who are the

individuals at DHHS who would be taking into account

these other factors?

A.

That would be at departmental level.

Q.

And can you sort of help us understand

10

"departmental level" -- what are positions that fall into

11

that category?

12

A.

I wouldn't know how that is arranged, I know

13

that I go through my Section Chief, and it goes up

14

through the chain of command to Dr. Williams.

15

is all I know.

16

Q.

Is Dr. Williams at the departmental level?

17

A.

Yes.

18

Q.

What about Dr. Davies?

19

A.

She is at the section level.

20

Q.

I am just trying to make sure that I

And that

That is my chain of command.

21

understand this, a determination of whether water is safe

22

to drink can include things like economics or politics,

23

you said?

24
25

A.

Yes.

And those -- when we send -- to give an

example, when we send out a new Well Water Risk

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 72 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 73

Evaluation, the person who is the risk manager is the

homeowner.

either accept -- follow our guidance and our

recommendation or they can ignore it.

those type of decisions when they are dealing with risk.

And the homeowner, looking at the risk, can

It is -- they make

And the same is true with these Health Risk

Evaluations, the ultimate person who decides risk and

risk levels to tolerate, and whether or not they follow

our recommendation is the homeowner.

10
11

They are the

ultimate risk manager in this process.


Q.

So I understand that.

But in coming up with

12

the recommendation and the standard that the Department

13

of Health and Human Services recommends as being safe,

14

can that safe level include things like economics and

15

politics?

16

A.

Sure, yes.

17

Q.

So has DEQ stated that it will defer to

18

Federal Safe Drinking Water Act standards when

19

determining whether water is safe to drink?

20

MS. LeVEAUX:

Objection.

21

THE WITNESS:

As far as for the Coal Ash

22

Management Act?

23

BY MS. BLAKE:

24

Q.

Yes.

25

A.

For the Health Risk Evaluations, I can only

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 73 of 174

MINA WALLIN SHEHEE, Ph.D.


1

answer for DHHS.

2
3

Q.

4/27/16

PAGE 74

I don't know what DEQ plans.

Will DHHS defer to the Federal EPA in

determining whether water is safe to drink?

A.

The -- that is a big question.

And it has a

lot of parts to it.

just water, but a lot of other different areas.

you could be more specific, that would really be helpful.

8
9

Q.

Yes, sure.

And it depends -- we deal with not


So if

For example, for hexavalent

chromium, is DHHS's position that it defers to EPA in

10

determining whether water contaminated with hexavalent

11

chromium is safe to drink?

12

A.

At this time, and according to the way I am

13

interpreting it, is that DHHS will be waiting for

14

official word from U.S. EPA of what their levels are.

15

The Risk Levels used for health screening for the coal

16

ash will remain the same.

17

Risk is risk.

It is -- that number, unless IRIS changes or

18

EPA changes their Cancer Slope Factor, the risk is the

19

same.

20

and that is a Risk Management decision.

21

factors come into play in which EPA will probably will

22

make their decision.

23

as I understand, that is our position.

24
25

It is that the U.S. EPA will be establishing that,

Q.

Again, other

And that would be -- that is our --

So has EPA developed a safety standard for

hexavalent chromium?

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 74 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 75

A.

Not that I am aware of.

Q.

And so North Carolina is going to defer and to

wait until EPA acts?

A.

Yes.

Q.

Is that common practice, for DHHS to wait

until EPA acts ---

A.

(Interposing) I don't know.

Q.

--- before taking any action?

A.

I don't know.

10

Q.

Who at DHHS would know?

11

A.

I don't know.

12

Q.

Would Dr. Williams know?

13

A.

I don't know.

This is the first time this has

14

happened since I have been working here, so I don't know

15

if anybody else or if it happened before.

16
17

Q.

So just to make sure I understand, this is the

first time that DHHS has ---

18
19

I don't know.

A.

(Interposing) This is the first time that

I ---

20

MR. ROBBINS:

Objection.

21

THE WITNESS:

--- I -- I have encountered

22

this.

23

speak for other people.

24

know, but I have not.

25

I can't speak for DHHS on that issue, and I can't


They may have done it.

I don't

This is the first time.

BY MS. BLAKE:

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 75 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 76

Q.

time ---

A.

(Interposing) In my experience.

Q.

--- that you have been instructed to wait

So in your experience, this is the first

until EPA acts ---

MR. ROBBINS:

Objection.

MS. LeVEAUX:

Objection.

THE WITNESS:

Not instructed.

9
10

change the word on that to something else.

I would
If you could

change your question.

11

BY MS. BLAKE:

12

Q.

Well, sure.

14

A.

I am going to let you, it is your question.

15

Q.

So my question was, you know, have you been

13

16

Well, if you could suggest a

word?

instructed by anyone ---

17

MR. ROBBINS:

18

BY MS. BLAKE:

19

Q.

Objection.

--- to wait until EPA comes up with a

20

standard.

And you said you haven't been, you wouldn't

21

use the word "instructed."

22

been?

What has the relationship

23

MS. LeVEAUX:

Objection.

24

MR. BARKLEY:

Objection.

25

MR. ROBBINS:

Objection.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 76 of 174

MINA WALLIN SHEHEE, Ph.D.


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4/27/16

THE WITNESS:

PAGE 77

I was given guidance.

I am going to change that.

letter that Dr. Randal Williams and Mr. Tom Reeder sent

out is where I am getting my information from.

-- that document is what I am referring to.

Not guidance.

And --

It was the

That is

BY MS. BLAKE:

Q.

And when you say the letter that they sent

out, are you referring to the letter that was sent to

residents telling them that their water was now safe to

10

drink?

11

A.

Yes.

12

Q.

So the guidance that you received in that

13

letter was that DHHS would wait until EPA comes up with a

14

standard for hexavalent chromium before taking any

15

action?

16

A.

I believe so.

I would have to look at the

17

letter.

The letter says that -- you know, it informs

18

homeowners of the update for safety.

19

look at the letter to be specific.

I would have to

20

Q.

Did you see the letter before it was sent out?

21

A.

Yes.

22

Q.

Are you aware a DEQ spokesperson has said in

23

another context that if EPA hasn't acted, if DEQ is faced

24

with a choice between protecting the environment or the

25

Federal Bureaucracy, protecting the environment will win

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 77 of 174

MINA WALLIN SHEHEE, Ph.D.


1

every time?

4/27/16

PAGE 78

Are you aware of that statement?

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

MR. BARKLEY:

Objection.

THE WITNESS:

I am not -- I am not aware of

that statement.

7
8
9

BY MS. BLAKE:
Q.

But in this particular instance with the

hexavalent chromium standard, DEQ and DHHS are planning

10

to delay any protections until the Federal standard

11

setting process is complete?

12

MS. LeVEAUX:

Objection.

13

MR. ROBBINS:

Objection.

14

THE WITNESS:

According to the letter, they

15

are waiting for U.S. EPA to come up with a level for

16

hexavalent chromium.

17
18

BY MS. BLAKE:
Q.

So if it is the policy of DEQ and DHHS in this

19

case to wait until EPA comes up with an MCL for

20

hexavalent chromium, what is the purpose of the

21

Groundwater Standards Statute and Rules that require

22

consideration of other factors besides the MCL's in

23

setting standards?

24

MS. LeVEAUX:

Objection.

25

MR. ROBBINS:

Objection.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 78 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 79

MR. LONG:

Objection.

THE WITNESS:

I don't know how to answer

that one.

there are, you know, there is a procedure by which you

can calculate Heath Screening Level, and that is what

DHHS did.

7
8
9
10

Because hexavalent chromium was not listed

BY MS. BLAKE:
Q.

And what is the purpose of calculating those

screening levels if DHHS and DEQ are just going to wait


until EPA comes up with a standard anyway?

11

MR. ROBBINS:

Objection.

12

MS. LeVEAUX:

Objection.

13

MR. LONG:

Objection.

14

THE WITNESS:

The Health Screening Level is

15

a screening level by which you would not expect an

16

increase in cancer rates -- one in a million -- and we

17

would not anticipate any adverse health effects.

18

risk number only.

19

describes whether or not a person will be at risk for

20

cancer, one in a million, one in a hundred thousand, one

21

in ten thousand or one in a thousand.

22

purpose of that.

23
24
25

It is used to describe risk.

It is a
It

That is the

So the risk remains the same.

BY MS. BLAKE:
Q.

What is the goal of determining the risk, or

what is the practical use of having the risk at hand if

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 79 of 174

MINA WALLIN SHEHEE, Ph.D.


1

4/27/16

PAGE 80

no action is taken until EPA sets a standard?

MR. ROBBINS:

Objection.

THE WITNESS:

The risk is provided as

information.

information about risk.

populations depending on the constituent, and -- or, you

know, the circumstances that may be in the broad scope.

And we provide information for people so they can make

healthy choices.

10
11

It is a public health -- it gives


We provide that to people --

BY MS. BLAKE:
Q.

And what would be a healthy choice in this

12

situation where contaminant levels exceed the one in a

13

million risk standard?

14

MR. ROBBINS:

Objection.

15

MS. LeVEAUX:

Objection.

16

MR. LONG:

Objection.

17

THE WITNESS:

That would be a decision made

18

by the homeowner.

19

Health Risk Evaluation, the ultimate Risk Manager in this

20

process is the homeowner.

21
22
23
24
25

The intent of a Risk Assessment or

BY MS. BLAKE:
Q.

And what is the Federal Standard for

hexavalent chromium?
A.

There isn't a Federal MCL -- maximum

contaminant level for hexavalent chromium, specifically.

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Q.

What is the Federal Standard for chromium?

A.

For total chromium?

Q.

For total chromium.

A.

It is on hundred.

Q.

Do you think that water that is contaminated

with a hundred parts per billion of hexavalent chromium

is safe to drink?

A.

No.

Q.

Do you think that water contaminated with

10

twenty parts per billion of hexavalent chromium is safe

11

to drink?

12

A.

No.

13

Q.

Is it cautious to use a hundred parts per

14

billion standard for hexavalent chromium, to tell people

15

what is safe and what isn't safe?

16

MS. LeVEAUX:

Objection.

17

THE WITNESS:

I don't understand the

18

question.

19
20

BY MS. BLAKE:
Q.

I am asking is it a cautious approach to use a

21

hundred part per billion threshold for hexavalent

22

chromium in deciding whether to tell people that their

23

water is safe or unsafe?

24

approach?

25

MR. ROBBINS:

Is that a cautious angle or

Objection.

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MS. LeVEAUX:

Objection.

MR. LONG:

Objection.

THE WITNESS:

No, I don't understand the

word "cautious."

it is or it is not.

hundred.

That is throwing opinion in there.

And

It is a hundred or it is not a

Using the word cautious is an opinion.


BY MS. BLAKE:

Q.

opinion?

10

A.

Being careful, conservative.

11

Q.

Is it conservative to use a hundred part per

12

What does the word cautious mean in your

billion threshold?

13

A.

That would be an opinion.

And, you know, I

14

would -- I would come up with a different answer, as

15

compared to John.

16
17

Q.

As a Risk Manager, what would your response

be?

18

MS. LeVEAUX:

Objection.

19

MR. ROBBINS:

Objection.

20

THE WITNESS:

If we were testing for total

21

chromium, then that standard is the MCL.

22

accordance to our procedure, it would be considered safe

23

to use total chromium at a hundred.

24

BY MS. BLAKE:

25

Q.

And in

And I guess what I am asking is, in your

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PAGE 83

opinion, is that a conservative or a cautious

determination?

A.

No.

Q.

Shouldn't homeowners be given information if

their wells test greater than the one in a million risk

threshold for hexavalent chromium?

MR. ROBBINS:

Objection.

MS. LeVEAUX:

Objection.

MR. LONG:

Objection.

THE WITNESS:

Our Health Risk Evaluation

10
11

form provides basic information to the homeowner.

12

puts our phone number on there so they can call us if

13

they have questions.

14
15

It

BY MS. BLAKE:
Q.

And I guess, more specifically, earlier you

16

had said that the purpose -- and correct me if I am

17

putting words in your mouth -- but the purpose of the

18

Health Screening Level for hexavalent chromium is to let

19

the well owners make decisions and to inform them what

20

the one in a million risk threshold is for hexavalent

21

chromium.

22

their risk level is, based on the amount of hexavalent

23

chromium detected in their wells?

24

MS. LeVEAUX:

Objection.

25

THE WITNESS:

What do you mean by "risk

Should well owners be informed about what

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PAGE 84

level"?

Not at all,

mean by risk levels.

we determine a recommendation for use or not use.

-- and whether or not there needs to be sampling

frequency and things of that nature.

following your line here.

8
9
10
11

Should they be told risk levels?


I take that back.

If we -- no.

I am not sure what you

We have a screening level by which


And so

I am just not

BY MS. BLAKE:
Q.

Yeah.

So the screening level determines

whether it is safe or unsafe to use?


A.

The screening level tells people use

12

recommendations, re-sampling frequency and other types of

13

information that the homeowner needs to know.

14

provides information about how to contact us and how

15

to -- and if there is treatment options that they want to

16

talk about, just general information we have.

17

the purpose of informing the homeowner.

18

Q.

It also

That is

I guess I am wondering if homeowners might be

19

a little confused right now if they had previously gotten

20

a recommendation to not use their water based on the

21

screening level, and more recently have gotten a letter

22

from Dr. Williams and Dr. Reeder telling them that their

23

water is safe to drink under Federal Standards?

24
25

A.

The risk remains the same.

health, we talk about risks to health.

And for public


And if people

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PAGE 85

have questions on that, we will speak with them.

reached out to many of the homeowners already in the past

year and talked about risks.

We have

And so, you know, we used the criteria, you

know, "This is a one in a million cancer risk at this

level.

a higher level we can give them an approximation for

range of what their risk will be.

a spectrum, it is not an absolute number.

What was your level?"

And we can -- if they have

And, you know, risk is


So providing

10

information to people about risks so they can make

11

healthy choices.

12

Q.

And it sounds like people are provided this

13

information about their risk level if they reach out to

14

DHHS.

15

and ---

But is DHHS directly reaching out to individuals

16

A.

(Interposing) We have ---

17

Q.

--- telling them what their risk level is

18
19

based on what has been found in their wells?


A.

Yes.

20

MS. LeVEAUX:

Objection.

21

THE WITNESS:

The Department of Health and

22

Human Services, when the initial Health Risk Evaluations

23

went out, we followed up by calling people.

24

get a hold of as many people as we could.

25

200 phone calls and reached approximately over 150

We tried to
We made over

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homeowners that we contacted.

And we had, you know, two staff working on

that to try to, at least, reach people.

effort on our part to call people.

Risk -- for the -- if people want absolute numbers --

people have a hard time with numbers, so we walked them

through the process.

8
9

So it was a huge

Normally, for Health

BY MS. BLAKE:
Q.

Do the letter that were sent out recently by

10

Dr. Williams and Mr. Reeder -- do those letter tell

11

people what their risk level is?

12
13
14

A.

I would have to look at the letter.

If you

have the letter, I would look at it.


Q.

I do.

Just a moment.

15

(Pause.)

16

I am going to pass you a document to be marked

17

Exhibit 276.

18

(PLAINTIFF-INTERVENOR EXHIBIT 276 WAS

19

MARKED FOR IDENTIFICATION.)

20

(Witness peruses document.)

21

Have you had a chance to review Exhibit 276?

22

A.

I briefly looked at it.

23

Q.

Okay.

24
25

Does it appear to be the letter from

Dr. Williams and Mr. Reeder to well owners --A.

(Interposing) Yes.

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Q.

--- telling them that their water is safe to

A.

Yes.

Q.

Does it seem to be a fair and accurate copy of

drink?

that letter?

A.

Yes.

Q.

Does this letter explain to the people

receiving it what their risk is if they drink their

water?

10

MS. LeVEAUX:

Objection.

11

THE WITNESS:

it explains -- this letter

12

explains in here that they withdraw the recommendation,

13

and it was determined that their water, in most city and

14

towns across the country, is ---

15

(Witness peruses document.)

16

It is based on a review of how other states

17

and Federal Government manage elements of hexavalent

18

chromium and vanadium in drinking water.

19

says.

20
21

That is what it

BY MS. BLAKE:
Q.

Do you think that residents are able to figure

22

out what their risk level is based on the information in

23

this letter?

24

MR. ROBINS:

Objection.

25

THE WITNESS:

I don't -- I don't know.

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PAGE 88

BY MS. BLAKE:

2
3

4/27/16

Q.

Would you be able to tell -- if you received

this letter ----

MR. ROBBINS:

BY MS. BLAKE:

Q.

Objection.

--- and your well had 20 parts per billion of

hexavalent chromium in it, would you be able to tell what

your risk level is?

MS. LeVEAUX:

Objection.

10

THE WITNESS:

It does not have the numeric

11

value on the form.

12

BY MS. BLAKE:

13
14

Q.

Would you be able to decide whether your water

is safe to drink or not?

15

MR. ROBBINS:

Objection.

16

MS. LeVEAUX:

Objection.

17

MR. LONG:

Objection.

18

THE WITNESS:

Yes, because it says it is

19

safe.

I mean, because it says the word "safe" on it.

20
21

BY MS. BLAKE:
Q.

So if you were a resident, you would feel that

22

you wouldn't have to make your own personal determination

23

about risk, because this letter tells you that your water

24

is safe to drink ---

25

A.

(Interposing) That is correct.

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MS. LeVEAUX:

BY MS. BLAKE:

Q.

PAGE 89

Objection.

--- regardless of the risk?

MR. ROBBINS:

Objection.

MS. LeVEAUX:

Objection.

MR. BARKLEY:

Objection.

THE WITNESS:

Yes.

BY MS. BLAKE:

Q.

I would say yes.

I think we spoke about this earlier, but what

10

is the cancer risk of water that contains 100 parts per

11

billion of hexavalent chromium; is it ---

12

A.

(Interposing) 70 would be -- it would be

13

greater than one in 1,000.

14

as the numbers get, you know, larger, like, one in 100 --

15

one in 1,000 would be less than one in 100, it would --

16

according to the Cancer Slope Factor that we used in the

17

calculation using the 2L Rule, we went ahead and

18

established that .07.

19

a 70 level, between 7 and 70, which is, you know, a ten

20

magnitude greater, that that number lies between there.

21

So we would expect it to be a one in 100 -- one in 10,000

22

to a one in a 1,000 risk.

23

What I mean by that is that

Based on that, when you come up to

I am not -- I can't pinpoint the exact number.

24

I know it is in the range of that.

25

in 1,000 for 20.

One in 10,000 to one

Is that what you are asking -- 20?

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Q.

A hundred, actually.

A.

A hundred?

PAGE 90

For a hundred.

So that would be -- since 70 would

be a one in 1,000, that would be less than a one in 1,000

cancer risk for hexavalent chromium.

Q.

If your water had a greater than a one in

1,000 risk of giving you cancer, just based on this one

pollutant, would you consider that safe to drink?

MR. LONG:

Objection.

MS. LeVEAUX:

Objection.

10

MR. ROBBINS:

Objection.

11

MR. BARKLEY:

Objection.

12

THE WITNESS:

For hexavalent chromium?

13

BY MS. BLAKE:

14

Q.

For hexavalent chromium.

15

A.

Yes -- no.

16
17

I would not consider that safe,

that level of risk.


Q.

So based on this letter, if the levels in

18

individuals wells are greater than -- the levels of

19

hexavalent chromium are greater than even the State

20

Standard for total chromium of 10 parts per billion, this

21

letter tells people that there water is safe to drink?

22

A.

Yes.

23

Q.

What is the purpose of the 10 part per billion

24
25

State Standard -- Groundwater Standard, in that case?


A.

I don't -- I don't know.

I don't know the

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PAGE 91

exact -- what went into it.

Standards are stated in the groundwater -- in the Rules

itself, and I can't ---

4
5

Q.

The purpose of Groundwater

So EPA's total chromium standard of a hundred

parts per billion, is that standard up-to-date?

A.

No.

Q.

Do you know approximately when it was created?

A.

I do not know.

Q.

Has it been ---

10

A.

Over a decade?

11

Q.

Yes.

12

A.

Yes, it is over a decade.

13

Q.

Is it true that EPA's standard for total

14

chromium of a hundred parts per billion assumes that all

15

of the chromium is hexavalent chromium?

16

A.

Correct.

Yes.

17

Q.

At the time the EPA set the hundred part per

18

billion standard, did EPA consider the cancerous effects

19

of hexavalent chromium?

20

MR. LONG:

Objection.

21

MS. LeVEAUX:

Objection.

22

MR. ROBBINS:

Objection.

23

THE WITNESS:

I don't know.

24

BY MS. BLAKE:

25

Q.

If I can just read you an excerpt from the

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PAGE 92

fact sheet ---

A.

(Interposing) Sure.

Q.

--- by the California Environmental Protection

Agency, stating "that at the time the total chromium

MCL's were established, ingested hexavalent chromium

associated with consumption of drinking water was not

considered to pose a cancer risk, as is now the case."

So do you understand that statement and what it means?

MR. LONG:

Objection.

10

MS. LeVEAUX:

Objection.

11

MR. ROBBINS:

Objection.

12

THE WITNESS:

Could you reword the question?

13

BY MS. BLAKE:

14

Q.

Does that suggest to you that when EPA was

15

setting its standard for total chromium, it was not

16

taking into account the cancer causing potency of

17

hexavalent chromium?

18

MR. LONG:

Objection.

19

MS. LeVEAUX:

Objection.

20

MR. ROBBINS:

Objection.

21

MR. BARKLEY:

Objection.

22

THE WITNESS:

I wouldn't know the process by

23

which EPA evaluates things.

I mean, California is saying

24

that that is how they did that.

25

does.

I wouldn't know what EPA

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2

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PAGE 93

BY MS. BLAKE:
Q.

Fair enough.

If EPA did not consider the

carcinogenic properties of hexavalent chromium, does it

provide any comfort that EPA's standard assumes that all

of the chromium is hexavalent chromium, if EPA wasn't

taking into account the major health problems caused by

hexavalent chromium?

MR. LONG:

Objection.

MS. LeVEAUX:

Objection.

10

MR. ROBBINS:

Objection.

11

THE WITNESS:

That is a really

12

complicated --- if you could reword that question, it

13

would be easier for me to understand the question.

14
15

BY MS. BLAKE:
Q.

Sure.

So you are saying you don't know for

16

certain what EPA did; you are not familiar with the

17

process for setting the total chromium standard.

18

am asking you to assume for a second that they did not

19

take into account the fact that hexavalent chromium --

20

they didn't know at the time that hexavalent chromium can

21

cause cancer.

22

And I

And so, in that sense, does it appear to you

23

that EPA considered the cancer causing properties of

24

hexavalent chromium in setting the hundred part per

25

billion standard?

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PAGE 94

MR. LONG:

Objection.

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

Under the conditions that you

have outlined, and the question -- you know, the

situation, no.

I still -- I am still stuck on your question.

not really sure of your question, so ---

9
10
11

I think I want to say no.

I am not sure.
So I am

BY MS. BLAKE:
Q.

So are Federal Standards based exclusively on

human health considerations?

12

A.

No.

13

Q.

What else do the Federal MCL's take into

14

account?

15

A.

Economics, technologies.

16

Q.

Okay.

17

kind ---

18

A.

(Interposing) Treatment technologies.

19

Q.

And DHHS does not take cost into account, I

When you say "technologies," what

20

believe you said earlier, when setting the Health Risk

21

Screening Levels?

22

A.

Yes.

23

Q.

Do you know why EPA has not set a standard for

24
25

hexavalent chromium?
A.

No.

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2
3

Q.

4/27/16

PAGE 95

Is that something that anyone at DHHS has

looked into, to your knowledge?


A.

To my knowledge, I gave the phone numbers to

EPA to Dr. Williams.

And I can't recall who it was.

looked them up on line, and there were two names.

sent him the phone numbers of those people at those

agencies.

And I

Q.

So Dr. Williams has talked to ---

A.

(Interposing) I don't know if he talked to

10
11
12
13
14
15
16

them or not.
Q.

I gave him the numbers.

And what prompted you to give him the numbers

that you --A.

(Interposing) He wanted more information about

hexavalent chromium.
Q.

Are you aware that EPA started the process for

setting hexavalent chromium over eight years ago?

17

A.

No.

18

Q.

They were setting the MCL?

19

A.

No.

20

Q.

Are you familiar with the study by the

21

National Institutes of Health concluding that there is

22

clear evidenced that hexavalent chromium is a carcinogen,

23

that prompted EPA to begin studying hexavalent chromium?

24

A.

Yes.

25

Q.

Have you reviewed that study by them?

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PAGE 96

A.

No.

Q.

But you are familiar with the conclusion ---

A.

(Interposing) Yes.

Q.

--- that hexavalent chromium is a carcinogen?

Are you aware that EPA held off on its development of the

hexavalent chromium standard, based on the recommendation

of a peer review panel, and that the peer review panel

was made up of -- a majority of the individuals who were

encouraging EPA to wait were -- had worked on behalf of

10

industry in hexavalent chromium lawsuits?

11

MR. LONG:

Objection.

12

MS. LeVEAUX:

Objection.

13

MR. ROBBINS:

Objection.

14

THE WITNESS:

No.

15

BY MS. BLAKE:

16

Q.

Is the possibility of industry influence in

17

the delay of Federal Standard setting something that DHHS

18

would consider?

19

MR. ROBBINS:

Objection.

20

THE WITNESS:

No.

21

BY MS. BLAKE:

22

Q.

Is it something that you would consider?

23

A.

No.

24

Q.

So the policy of DHHS is to wait for EPA,

25

regardless of what the hold up is?

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A.

I wouldn't know what -- I don't know.

Q.

And who at DHHS would know?

A.

Dr. Williams.

Q.

Has EPA set any screening levels for

PAGE 97

hexavalent chromium?

A.

Not that I am aware of.

Q.

I would like to hand you a document to be

marked Exhibit 277.

(PLAINTIFF-INTERVENOR EXHIBIT 277 WAS

10

MARKED FOR IDENTIFICATION.)

11

(Witness peruses document.)

12

Okay.

13

Have you had a chance to review this

page?

14

A.

Superficially, yes.

15

Q.

Does it appear to be an excerpt from the

16

Corrective Action Plan, Part 2, prepared by Synterra,

17

February of 2016, for ---

18

A.

(Interposing) That is what it says.

19

Q.

--- Duke Energy's Mayo Steam Electric Plant?

20

A.

That is what it says in the upper left-hand

21
22

Go ahead.

corner.
Q.

Okay.

And about halfway down the second

23

paragraph on the page, do you see the reference to -- I

24

will just read the sentence: "Hexavalent chromium

25

concentrations exceeded the EPA screening level for

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PAGE 98

hexavalent chromium in tap water."

A.

I see that.

Q.

What is the screening level for hexavalent

4
5

chromium in tap water?


A.

I am not aware of an EPA screening level.

That needs to be defined more clearly by the person who

wrote this report.

8
9

Q.

I agree.

Does the level recorded in the

report appear to be .035 parts per billion?

10

A.

Yes.

11

Q.

And how does that compare to North Carolina's

12

screening level for hexavalent chromium?

13

A.

It is about half.

14

Q.

So a little bit more protective?

15

A.

Yes.

16

Q.

So if this is true, then EPA has a screening

17

level for hexavalent chromium that is more protective

18

than North Carolina's?

19

A.

It is news to me.

20

Q.

And I guess one more point.

21

Are you aware

that Synterra is a consultant for Duke Energy?

22

A.

No.

23

Q.

If there is an EPA screening level for

24

hexavalent chromium, would North Carolina defer to that

25

standard if it is referring to Federal Standards?

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PAGE 99

I think that it states in here that ---

(Witness peruses document.)

We would use Federal guidelines.

up with an MCL for hexavalent chromium, North Carolina

would -- would -- our Risk Assessors would use that as

part of the Risk Assessment.

If EPA came

Q.

And what about other Federal guidelines?

A.

There is an unregulated contaminant monitoring

rule level of .03, and that is designed to -- EPA is

10

looking at levels of hexavalent chromium in public water

11

supplies.

12

for monitoring purposes.

13

I am not aware.

14

And so that level is set at .03.

That is used

Whether it is based on health,

I do know the purpose of it is to do the

15

unregulated contaminant monitoring rule.

The EPA uses

16

that rule to look at certain constituents in public water

17

supplies.

18

Q.

And the .03 is for hexavalent chromium?

19

A.

That is correct.

20

Q.

Are there any other states that have a

21
22

hexavalent chromium standard?


A.

For health, there is a public health goal for

23

California that is set at .02 parts per billion.

And

24

that is the only one I can recall off the top of my head.

25

There are other states that have different types of

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PAGE 100

levels for total chromium.

And there is exhaustive lists

of those that can be found.

(Inaudible) have what level

for what purposes.

a health screening level, the one off the top of my head

I can recall is California.

per billion.

7
8

Q.

But for public health goals, strictly

And it is set at 0.02 parts

And do you know what prompted California to

enact a public health level ---

A.

(Interposing) No.

10

Q.

--- for hexavalent chromium?

11

A.

I dont.

12

Q.

Are you aware of any known hexavalent chromium

13

contamination problems in California?

14

A.

Yes.

15

Q.

Tell me about that.

16

A.

Specifically?

17

Q.

Whichever contamination problem you are

18
19

Can you be specific?

thinking of.
A.

The only one I am aware of is Erin Brockovich,

20

which is, you know, common knowledge.

21

thing I know of.

22
23

Q.

That is the only

And is the Erin Brockovich case -- was that

based on contamination in Hinkley, California?

24

A.

I don't recall the background story on that.

25

Q.

Was it contamination by the utility there --

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MINA WALLIN SHEHEE, Ph.D.


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PG&E?

A.

I don't recall the background on that.

Q.

Do you know approximately the time frame that

the hexavalent chromium contamination became known?

A.

I don't remember.

Q.

Are you aware of any connection between the

contamination problem that arose and the later

development of the hexavalent chromium standard in

California?

10

A.

No.

11

Q.

Do you know how high -- and just to make sure

12

I am not missing anything, do you know how high the

13

hexavalent chromium levels detected in the Erin

14

Brockovich case were?

15

A.

I don't recall.

16

Q.

Are you aware that the highest levels of

17

hexavalent chromium in residential wells in coal ash

18

ponds in North Carolina are higher than most of the

19

hexavalent chromium detections in the Erin Brockovich

20

situation?

21

MR. LONG:

Objection.

22

MS. LeVEAUX:

Objection.

23

MR. ROBBINS:

Objection.

24

MR. BARKLEY:

Objection.

25

THE WITNESS:

I don't know.

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MINA WALLIN SHEHEE, Ph.D.


1

PAGE 102

BY MS. BLAKE:

2
3

4/27/16

Q.

What is the California MCL for hexavalent

chromium?

A.

Their -- I believe they call it MCL.

Their

terminology may be different compared to -- it is not a

Federal Standard.

per liter.

8
9

Q.

And is that a Health Base Level or does it

take into account things like cost?

10
11

Their State Standard is 10 micrograms

A.

It is based on other criteria in addition to

health.

12

Q.

Do you know what some of those other criteria

14

A.

I don't -- I don't know what California does.

15

Q.

But it is more than just health?

16

A.

Yes.

17

Q.

Do other states have Groundwater Standards for

13

18

are?

vanadium?

19

A.

I don't know.

20

Q.

Do you know if anyone at DHHS has investigated

A.

Yes.

21
22
23
24
25

that?
Dr. Rudo -- he would be the best one to

answer that question.


Q.

Has DHHS compared the levels of hexavalent

chromium in residential wells to the levels in other

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 102 of 174

MINA WALLIN SHEHEE, Ph.D.


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PAGE 103

public water supplies in North Carolina?

A.

We didn't.

Q.

And by "your office," you mean DHHS?

A.

No, Occupational Environmental Epidemiology.

5
6

As far as my office, no.

That is the branch.


Q.

I see.

Do you know if anyone else at DHHS has

compared water levels in residential wells to water

levels ---

A.

(Interposing) We have not compared.

However,

10

we were asked to get information about levels.

11

asked to find levels in Cumberland County.

12

the -- with regards to the un-contaminant monitoring

13

rule, I was able to find reports for -- consumer

14

confidence reports that public water supply set up.

15

I was

And I went to

And there was some monitoring for hexavalent

16

chromium in two -- in several of the public water

17

supplies there.

I don't recall the names of the public

18

water supplies.

I don't recall the levels.

19

provided the links and sent them forward.

I just

20

Q.

Any other counties besides Cumberland County?

21

A.

That is the only one that I did.

22

Q.

And do you remember whether the levels were

23
24
25

low or high or --A.

I just don't remember.

I mean, I just go,

"Here is the report, bingo," you know, and just send it.

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MINA WALLIN SHEHEE, Ph.D.

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PAGE 104

That is kind of -- when information is asked -- we -- we

weren't asked to analyze it.

We were asked to find it.

Q.

And who were you asked by?

A.

Dr. Williams.

Q.

So earlier, I believe you said a number of the

residential wells near coal ash ponds had levels of

hexavalent chromium that were above 20 parts per billion;

is that right?

A.

Yes.

10

Q.

Are there any public water supplies, to your

11
12

knowledge, that have levels that high in North Carolina?


A.

I don't know.

I have -- the only data that I

13

have that even touched on it was the confidence reports

14

that I sent from Cumberland County.

15
16
17
18
19
20

Q.

That is all I know.

Are you familiar with Duke's coal ash site at

the Buck Plant in Salisbury, North Carolina?


A.

I know where Salisbury, North Carolina is.

have not been to the Buck Steam Station.


Q.

I would like to give you a document to be

marked Exhibit 278.

21

(PLAINTIFF-INTERVENOR EXHIBIT 278 WAS

22

MARKED FOR IDENTIFICATION.)

23

(Witness peruses document.)

24

Have you had a chance to look at Exhibit 278?

25

A.

I looked at it.

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1

Q.

4/27/16

PAGE 105

Does it appear to be a -- earlier, you

referred to a consumer confidence report.

consumer confidence report or drinking water quality

report for the Salisbury/Rowan water supply?

5
6

A.

It says on the title that it is a drinking

water quality report.

Q.

Is it a

It is from this agency.

Is that different from a consumer confidence

report?

A.

It has the appearance of a consumer confidence

10

report, which has information for the customer.

11

normally, each utility will do it differently.

12

is considered a quality report.

And
But this

13

Q.

And is it for the year 2013?

14

A.

It says in the title that it is 2013.

15

Q.

And if you turn to the second page, or the

16

back page of the document, do you see a level for

17

hexavalent chromium that was detected in each of the

18

quarters?

19

A.

20

Let's see.
(Witness peruses document.)

21

Q.

It the third column in one of the tables.

22

A.

Yes.

I see under the title where it says,

23

"Unregulated Contaminant Monitor Rule," yes.

(UCMR3)

24

The results are outlined in the following table," in

25

2013.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 105 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2

Q.

PAGE 106

Are any of the levels of hexavalent chromium

20 parts per billion?

3
4

4/27/16

A.

Let's see.

It is micrograms.

Twenty for

hexavalent?

Q.

Yes.
(Witness peruses document.)

A.

No.

Q.

Are they much lower than 20 parts per billion?

A.

They are at least three orders of magnitude

Q.

Okay.

10
11

lower.
You can set that aside now for the

12

moment.

13

told you to set it aside prematurely.

14

hexavalent chromium in the Salisbury/Rowan water supply

15

lower than what was detected in the residential wells in

16

Buck and Salisbury?

17

A.

So based on that report, are the levels -- I

I don't know the exact levels of all the

18

homeowners and things.

19

that off the top of my head.

20

Q.

Are the levels of

I don't know.

I wouldn't know

I can give you something to help out with

21

that, maybe.

22

Exhibit 279.

I will give you a document to be marked

23

(PLAINTIFF-INTERVENOR EXHIBIT 279 WAS

24

MARKED FOR IDENTIFICATION.)

25

And it is a long document.

You don't need to

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 106 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 107

read the entire thing.

But you can familiarize yourself

with the first couple of pages and I will point you to

the particular page of interest.

(Witness peruses document.)

So have you had a moment to familiarize

yourself with this?

A.

Familiarize, yes.

Q.

Does Exhibit 279 appear to be a copy of the

results of the water supply well sampling and the Health

10

Risk Evaluation sent to an individual living in

11

Salisbury, North Carolina?

12

A.

Yes.

13

Q.

And if you turn to page 5 of 30 of the Case

14

Analytical Results for that well, and take a look at the

15

result for hexavalent chromium, which is the third from

16

the bottom on that page.

17

(Witness peruses document.)

18

A.

Okay.

19

Q.

Does it appear to be 22.3 parts per billion?

20

A.

It states in the form that it is 22.3.

21

Q.

And is that higher than the levels that you

22

were just taking a look at in the Salisbury/Rowan water

23

quality report?

24

A.

Yes.

25

Q.

Okay.

You can set that aside for a moment.

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PAGE 108

Has DHHS consulted with local water supply officials

about, I guess, the hexavalent chromium standard in

general?

A.

We met with and received waters from AQUA.

Not individual -- to my knowledge, I have not dealt with

individual public water supplies.

did.

corporate owner of a lot of public water supplies.

I don't recall if I

I recall that we met with AQUA, which is a

Q.

And what was that meeting with AQUA about?

10

A.

I don't -- I am going to summarize.

And I

11

don't know the specifics off the top of my head, but

12

basically they had concerns that the MCL -- that the

13

screening level that we used for hexavalent chromium

14

would be turned and used as the standard in North

15

Carolina.

16

Q.

17

meeting?

18

A.

And that was their main concern.


Was a conclusion reached in that discussion or

DHHS has no plans to make the .07 some sort of

19

standard.

20

EPA to make that determination.

21
22

Q.

We have no plans for that.

We are waiting for

After EPA makes its determination, what action

will DHHS take at that point?

23

A.

For?

24

Q.

For hexavalent chromium.

25

A.

In what context?

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1

Q.

4/27/16

PAGE 109

Well, you just said you were waiting for EPA.

And you mentioned setting a standard.

standard ---

Would DHHS set a

A.

(Interposing) No.

Q.

--- after EPA takes action?

A.

No.

Q.

What is DHHS waiting to do until after EPA

8
9

sets the --A.

(Interposing) Oh, we do not have anything

10

planned, but going forward, if we ever encounter

11

hexavalent chromium again in a sample, you know, if EPA

12

has a standard, we would use that then.

13

context in which I am stating -- stating that.

14
15
16
17
18

Q.

That is the

So you would use EPA's level to determine the

risk of hexavalent chromium?


A.

We would use that -- we would use that as a

Health Screening Level for hexavalent chromium.


Q.

And would that be true even if DHHS had

19

determined that a lower level was necessary to protect

20

the public health?

21

A.

Yes.

22

Q.

I guess -- I am still having trouble figuring

23

out how that is consistent with the 2L Rules that list

24

the six criteria, and say that the Health Protection

25

Standard should be set as the least of those -- the most

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2

4/27/16

PAGE 110

protective of those?
A.

The process by which we do this is that there

is a process, and then there is instructions about how to

calculate.

the New Well Rules is we use the MCL first.

not an MCL, we use the 2L.

the IMCA.

calculations under that -- number 1 and number 2 rule.

In our instructions and the way we do it with


If there is

If there is not a 2L, we use

And if we don't have an IMAC, then we use the

So that is -- that is the process by which we

10

do this.

You know, that is the standard procedure.

11

have an agreement with Division of Waste Management -- a

12

previous agreement.

13

Health Risk.

And that is how we approach our

14

Q.

And is that consistent with ---

15

A.

(Interposing) Yes.

16

Q.

--- the criteria set out in the 2L Rules?

17

A.

Yes.

And the reason is hexavalent chromium

18

doesn't have an MCL.

19

can't use an MCL because there isn't one.

20

2L because there isn't one.

21

because ther isn't one.

22

paragraph, and you look at that paragraph.

23

We

It doesn't have one yet, but -- you


There is not a

You cant use an IMAC

So then you default to that

But when Health Screening Levels -- when you

24

do HREs, you use MCL first.

That is stipulated by our

25

sampling rule, what we call the 3800 Rule.

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MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 111

Q.

3800 Rule?

A.

Yes, in which we use the MCL's primarily.

And

then in special projects, when we do site specific

evaluations, we have an agreement with the Division of

Waste Management by which we will use the MCL's first, 2L

Standard second, the IMAC, and then the calculation.

7
8
9
10

Q.

And when was that agreement with the Division

of Waste Management --A.

(Interposing) It was done when Dexter Matthews

was here, and we kept it in place ever since.

11

Q.

About what time frame was that?

12

A.

I don't remember.

13

Q.

A couple of years ago or a couple of decades

14
15

I don't remember exactly.

ago or --A.

No, no.

it is within the last -- just before

16

he retired.

17

between -- it was before Linda Culpepper became Division

18

Director.

19

Q.

I don't remember the exact time.

It was

Just to help me resolve my confusion, if you

20

could pull out the -- these (indicating) -- it doesn't

21

have an Exhibit number, but the 2L Rules that we looked

22

at first thing today and take a look at those again.

23

(Witness peruses document.)

24

A.

Uh-huh.

25

Q.

And so the process that is set out in this --

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 111 of 174

MINA WALLIN SHEHEE, Ph.D.


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PAGE 112

did you call it the 3800 Rule?

A.

Uh-huh.

Q.

You are saying that you start with the MCL --

Federal MCL, and then the 2L Standard, and then the IMAC

Standard.

to Section (d) -- that paragraph that says that "The

Groundwater Quality Standards for substances shall be

established as the least of the following six criteria."

And one of those criteria is the Federal MCL.

10

And then if none of those exist, then you turn

So is that

a little bit circular, that ---

11

A.

(Interposing) It is circular.

12

Q.

--- you start with the MCL, and then -- but if

13

the MCL is not as protective as the, for example, one in

14

a million cancer risk, it seems like this paragraph is

15

directing you to use the lower rate cancer risk?

16

A.

In the -- yes.

17

Q.

So a moment ago, to take us back, we were

18

talking about meetings with public water suppliers that

19

you had -- that you had had, and you mentioned the

20

meeting with AQUA?

21

A.

We only met with AQUA.

22

Q.

Did you meet with any local public health

23

officials?

24

A.

During that same time -- same meeting?

25

Q.

Oh, well, during that same meeting?

We will

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 112 of 174

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PAGE 113

start there.

A.

No.

Q.

Did you meet with local public health

officials in the time frame that you were creating the

hexavalent chromium and the vanadium health screening

levels?

7
8
9

A.

I don't think so.

I don't recall.

I don't --

I don't remember.
Q.

Have you met with any local health officials

10

about hexavalent chromium or vanadium since that time in

11

the past?

12

A.

Yes.

13

Q.

How many times have you met with local public

14
15

health officials?
A.

We had two conference calls where we invited

16

all of the impacted health departments for a

17

communications meeting.

18

County Health Department and the Gaston County Health

19

Department.

20

Health Directors, just to give them an update of where we

21

are at.

22

you know, we have conference calls when the Health

23

Directors have questions.

24

those calls.

25

Q.

And we spoke with the Rowan

I have sent e-mails to each of the impacted

What we try to -- we try to keep the health --

And that is the purpose of

When was the first of the conference calls?

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MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 114

A.

I want to say May.

Q.

Of 2015?

A.

2015, uh-huh.

Q.

And what was the conversation in that call?

A.

What we did is we kind of outlined for their

benefit, because the plan going forward for the health

directors is that normally we would follow the process

that we outlined, and then once the determination of

source was made, then homeowners would have a better

10

understanding of whether or not they wanted to treat

11

their systems or not, and -- because DHHS does not

12

determine source.

13

And so, with that, we give information -- we

14

would follow back on the 3800 Rules, where we would say

15

we will give you information about the contaminants.

16

would give you treatment options and help to look -- that

17

is facilitated through the local health departments.

18

We

If people wanted to get their -- a treatment

19

system on their wells, we provide information to the

20

health department so that they could convey that to their

21

community.

22

local health departments is the conduit by which we reach

23

people.

24
25

The whole purpose of this process is that the

And we were planning ahead for the next step.


We knew the testing was going to get done.

know they would have an HRE sent out.

We

So the next step

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 114 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 115

was people may want to have options to put in place.

that is when the local health department could facilitate

and help out.

And

So our communication -- I would call it a

communications meeting.

You know, we kind of outlined,

you know, and sent out a plan -- a communications plan

kind of outlining, you know, where this is coming from,

what anticipated unintended consequences could be,

information available to the local health department so

10

that if they get asked questions they can deal with

11

questions.

12

have any concerns.

13

And then we always open it up to see if they

So it is a very informal meeting just to let

14

the health directors know that they are not alone and we

15

are going to help them out.

16

meetings.

17

-- oh, I don't know what to call it, lack of a word --

18

their site plan things came out for the different sites?

19

I don't know the name of it.

20

health directors wanted some more information on that.

21

And we had two such

The most recent meeting was when some of those

And when that happened the

So we invited Mr. Reeder to come on and kind

22

of just talk about what is going on and what the process

23

is.

24

know, what to expect, you know, so they can help serve

25

their people better.

Because that is all they really want to know is, you

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 115 of 174

MINA WALLIN SHEHEE, Ph.D.


1

Q.

4/27/16

PAGE 116

And the conference call that happened after --

was it Duke Energy's Corrective Action Plans, when those

came out?

A.

I think so.

I am not sure.

It was the first

ones that came out.

and I don't know which ones these are.

where they say that there is a high or a low or an

intermediate issue.

called, the health directors had a lot of questions and

10

It was the one where there was -It is the one

That is -- whatever that report was

wanted more information.

11

Q.

12

Classification?

13

A.

That is it.

14

Q.

And so the conference call occurred what

15

That sounds like it might have been DEQ's Risk

That is it.

general time frame?

16

A.

I would say March.

17

Q.

March?

19

A.

Yes.

20

Q.

Was Dr. Williams on the May call in 2015?

21

A.

No.

22

Q.

During any of these conversations with local

18

Okay.

And was Dr. Williams on that

call?

23

public health officials, did the discussion of what the

24

contamination levels in local water -- municipal and

25

county water supplies were?

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MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 117

A.

No.

Q.

Have you heard from any local public health

officials whether 20 parts per billion would be an

acceptable amount of hexavalent chromium in a local water

supply?

6
7
8
9
10

A.

No.
MS. BLAKE:

Okay.

This might be a good

stopping place for lunch.


(THE PROCEEDINGS WERE RECESSED AT 12:20 P.M.
TO RECONVENE AT 1:23 P.M. THIS SAME DAY.)

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 117 of 174

MINA WALLIN SHEHEE, Ph.D.

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PAGE 118

F U R T H E R

P R O C E E D I N G S

1:23 P.M.

D I R E C T

E X A M I N A T I O N

1:23 P.M.

(RESUMED)

BY MS. BLAKE:

Q.

All right.

Dr. Shehee, I would like to go

back to -- this morning we talked a lot about the setting

of the standards for hexavalent chromium and for

vanadium.

standards -- the Health Base Screening Levels were set

I would like to go back to the point after the

10

for those contaminants.

What happened next?

What was

11

the next decision point that came up after you came with

12

the .07 and .3 ppb standards?

13

A.

As far as doing the Health Risk Evaluations?

14

Q.

Yes.

15

A.

Once the levels were set, we prepared our

Q.

Were there any other options that were

16
17
18
19

form.

considered?
A.

We used existing procedures.

And so because

20

we wanted to stay with nothing new -- what I mean by

21

"nothing new," no new procedures, no new rules or

22

anything like that, that we -- we stuck with our standard

23

plan that we normally do with new laws, so ---

24
25

Q.

And were these existing procedures in writing?

Are there written guidelines?

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MINA WALLIN SHEHEE, Ph.D.

4/27/16

A.

Yes.

Q.

What are those guidelines called?

A.

3800.

Q.

So 3800?

(Witness nods affirmatively.)


Q.

And you mentioned that these are existing

procedures.

letters to residents in other situations?

10

A.

Has DHHS sent, I call them, "do not drink

We send -- we recommend not to use their well

11

water for drinking or cooking.

12

are not standards, they are recommendations.

13
14

Do they

have a name or a number?

PAGE 119

Q.

They are not orders, they

Have you sent those recommendations in other

situations?

15

A.

Yes.

16

Q.

Can you tell me about those?

17

A.

We use the recommendations as we evaluate

18
19
20
21

wells for -- under the 3800 Rules.


Q.

And when or under what circumstances do you

evaluate wells under the 3800 Rules?


A.

The 3800 Rules are made for new wells.

They

22

are requirements for the construction of wells -- new

23

wells, permitting and evaluation of sample data.

24
25

Q.

Are there any other situations, other than new

wells, in which DHHS would follow the procedures for

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sending a recommended not to use letter?

A.

Not that I can recall.

Q.

Who made the decision to send the recommend

not to use letters?

A.

The Health Risk Evaluations are not do not

use.

for drinking or cooking.

order or anything; it is a recommendation.

approval went to me, as the manager.

10
11

They are recommendations that -- not to use water

Q.

Okay.

"Do not" is not a standard, an


The first

So you were the one who approved the

sending of the letters originally?

12

A.

Yes.

13

Q.

And was anyone else, I guess -- can you

14

describe the process -- your process for deciding to send

15

those letters?

16

A.

The process, we used the existing form for

17

HRE's for private wells, and augmented it for this

18

project.

19

with specific sites for specific things.

20

different from -- as compared to the new well rule.

21

this form is basically the same, but it was created for

22

this project only.

23
24
25

Q.

This project was a time limited project dealing


That was

And you said that it was augmented.

So

In what

way was it augmented?


A.

Well, we normally check for different

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constituents for new wells, as compared to those that

have site specific constituents, as in this case, a coal

ash site.

Q.

letters?

A.

We don't send letters, we send Health Risk

Evaluations to DENR -- DEQ.

8
9

And when did you make the decision to send the

Q.

When did you make the decision to send the

Health Risk Evaluations to DEQ?

10

A.

Under what -- can you clarify that question?

11

Q.

For the hexavalent chromium and vanadium

12

around coal ash ponds?

13

A.

Well, we evaluate -- using the Health Risk

14

Evaluations, we look at all constituents, when we look at

15

the -- when we do the Health Risk Evaluation.

16
17

Q.

And when did you present the Health Risk

Evaluations to DEQ?

18

A.

The process by which we sent the Health Risk

19

Evaluations to the Department of Environmental Quality

20

was directly determined upon their receipt of sampling

21

data.

22

Q.

So it was staggered?

23

A.

Yes.

24

Q.

When was the first Health Risk Evaluation

25

sent?

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A.

I don't recall.

Q.

When was the last Health Risk Evaluation sent?

A.

I don't recall the last date, but it was as

4
5

I was -- I don't recall.

recently as Fall of 2015 -- some stragglers.


Q.

And just to make sure I understand correctly,

it sounds like DHHS did not make the decision to send the

letters to the residents, that was DEQ's decision?

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

10

THE WITNESS:

Yeah.

11

was a -- I don't know or -- say the question again?

12
13

I don't know if that

BY MS. BLAKE:
Q.

Sure.

I thought that I heard you say earlier

14

that you and that DHHS did not make the decision to send

15

the letters to the residents telling them -- relaying

16

this information?

17

A.

We did not -- we did not make a decision.

18

Q.

Did DEQ make the decision to send the letters

19

to the residents -- the Health Risk Evaluations and the

20

letters recommending not to drink the water?

21

MS. LeVEAUX:

Objection.

22

MR. ROBBINS:

Objection.

23

THE WITNESS:

DEQ sent the letters along

24
25

with their packet.


BY MS. BLAKE:

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Q.

Who at DEQ made that decision?

A.

I don't know.

Q.

Did you speak with anyone at DEQ about sending

the letters?

A.

In reference to what?

Q.

To hexavalent chromium and vanadium?

A.

And under what ---

Q.

In the coal ash process.

A.

Can you be more specific?

10

Q.

Maybe it would help if you could help me

11
12
13
14

There is ---

identify the area of confusion.


A.

Can you say the question again?

Let me hear

the question again.


Q.

Yes.

Lets see.

So I think what I am trying

15

to get at is did you speak with anyone at DEQ about the

16

sending out of the letters telling people -- recommending

17

that people do not drink their water because of ---

18

A.

(Interposing) Yes.

19

Q.

--- hexavalent chromium and vanadium?

20

And who

did you speak with?

21

A.

Debra Watts.

22

Q.

And what was the content of those discussions?

23

A.

We spoke about they would send us letters, and

24

they would inform us that it was coming by e-mail, and we

25

would inform them that they were coming back.

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2

Q.

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And these were phone calls to alert each other

that e-mails were happening?

A.

Most of our correspondence is by e-mail.

Q.

And when you say that the letters were being

sent back and forth, were edits being made to the letters

as part of that process, or why were the letters being

exchanged back and forth?

A.

That is two questions.

Q.

Sure.

10
11

Can you pick one?

Why were the letters being sent back

and forth between you Debra Watts?


A.

They were sent between our branches.

The

12

results of the sampling were received by the Department

13

of Environmental Quality.

14

We would evaluate them with our Health Risk Evaluations

15

and then we would send them back to DEQ to be included in

16

their report.

17
18

Q.

They would send it over to us.

Was there any discussion with anyone else at

DEQ besides Debra Watts?

19

A.

Eric Smith.

20

Q.

And what was the nature of that discussion?

21

A.

The discussion about the samples.

Most of the

22

discussion of informing us that e-mails were being sent

23

was from Eric, more so.

24

Q.

Anyone else at DEQ?

25

A.

No.

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And were there any preliminary discussions

before this process got started of DEQ sending you the

results and you sending DEQ the Health Risk Evaluation?

MS. LeVEAUX:

Objection.

THE WITNESS:

Well, we had -- when we had

meetings in January, we talked about the process.

BY MS. BLAKE:

Q.

And that was January of 2014?

A.

2015.

10

Q.

2015.

11
12

And what was discussed at those -- at

that January meeting?


A.

In regard to the forms, we outlined what would

13

be the best way to communicate with each other by -- you

14

know, which -- you know, the process.

15

reports.

16

they had to do.

17

coming.

18

They would get the

They would do what they had to do -- whatever


They would inform us that they were

They would e-mail the sampling results to us.

19

We would do our Health Risk Evaluation, and then we would

20

hand carry our Health Risk Evaluations back to DEQ so

21

they could use it for -- as part of their reporting

22

process.

23

Q.

And so to kind of summarize some things I

24

think you said earlier -- please correct me if I am

25

getting any of it wrong -- the Health Risk Screening

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levels are established based purely on the health risk of

contaminants.

that Health Risk Managers would decide what to do with

that information -- the Health Risk Screening Level.

that accurate?

And then I believe you also so mentioned

MS. LeVEAUX:

Objection.

THE WITNESS:

Can you say that again?

BY MS. BLAKE:

Q.

Is

So if I am getting the terminology right,

10

after Health Risk Screening Levels are determined, a

11

Health Risk Manager -- is that the correct terminology?

12

A.

Go ahead and state your question.

13

Q.

Would make the decision on what to do next --

14

what action to take based on other considerations, as

15

well as health; is that accurate?

16

MS. LeVEAUX:

Objection.

17

THE WITNESS:

I -- yes.

18

BY MS. BLAKE:

19

Q.

And you had said that you were the Risk

20

Manager when the determination of the Health Screening

21

Levels was ongoing, is that right?

22

MS. LeVEAUX:

Objection.

23

MR. ROBBINS:

Objection.

24

THE WITNESS:

Yes.

25

BY MS. BLAKE:

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And were you also the Risk Manager in charge

of determining what to do with those Health Screening

Levels?

Health Risk Evaluations?

In charge of making the decision to create the

MS. LeVEAUX:

Objection.

THE WITNESS:

The risk -- the Health

Screening Levels are used to determine whether or not the

form would be signed to recommend not to use or recommend

to use.

10
11
12
13

BY MS. BLAKE:
Q.

And is that a decision that the Risk Manager

would make in that case?


A.

This would be -- because the evaluation is

14

done by toxicologists, it would be conducted by the

15

toxicologist.

16

Q.

And was there any consideration of other

17

factors besides health, before the Health Risk

18

Evaluations were sent out?

19

A.

They were health based.

20

Q.

And I believe you said earlier that Tom

21

Reeder, in earlier meetings, had said that in the process

22

of creating the Health Risk Screening Levels, that DHHS

23

could do what they wanted?

24

correctly?

25

MS. LeVEAUX:

Am I paraphrasing that

Objection.

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MR. ROBBINS:

Objection.

THE WITNESS:

Mr. Reeder said, "give them

what they want."

BY MS. BLAKE:

Q.

And at what point did he make that statement?

A.

At the end of the meeting.

Q.

Which meeting was that?

A.

This was a meeting with Dr. Davies, myself and

other members of DEQ.

And we were discussing a variety

10

of different topics, most of which is the Health

11

Screening Level for hexavalent chromium.

12

Q.

In what time frame was that meeting?

13

A.

I don't recall the exact month of that.

14

Q.

Was it 2014 or ---

15

A.

(Interposing) 2015.

16

Q.

It was 2015?

17

And was it before the Health

Risk Evaluations started going out?

18

A.

Yes.

19

Q.

Was issuing the Health Risk Evaluations a

20

serious decision?

21

MR. ROBBINS:

Objection.

22

THE WITNESS:

By who?

23

BY MS. BLAKE:

24

Q.

By DHHS.

25

A.

What do you mean by serious?

What do you

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mean by "serious decision"?


Q.

Was it a significant decision?

MR. ROBBINS:

Objection.

THE WITNESS:

In what context?

BY MS. BLAKE:

6
7

PAGE 129

Q.

What does a -- you know, a serious or

significant decision mean to you in your day-to-day work?

MR. ROBBINS:

Objection.

THE WITNESS:

It could mean anything.

10

could mean anything.

11
12

It

BY MS. BLAKE:
Q.

Was the decision to send out Health Risk

13

Evaluations to residents something that you would take

14

lightly?

15

MR. ROBBINS:

Objection.

16

THE WITNESS:

No.

17

BY MS. BLAKE:

18

Q.

And at any time before the Health Risk

19

Evaluations were first sent out to residents, did anyone

20

at DHHS raise any concerns about sending out the Health

21

Risk Evaluations to residents?

22

A.

No.

23

Q.

Did anyone at DEQ raise any concerns?

24

A.

Yes.

25

Q.

And was that the concern that we spoke about

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earlier about bottled water?

A.

Yes.

Q.

Were there any other concerns?

A.

It is the only one I can recall at this time.

Q.

When did Dr. Williams join DHHS?

A.

Summer of 2015.

Q.

And did he express any concerns about the

Health Risk Evaluations at that time, in the Summer of

2015?

10

A.

No.

11

Q.

Was he aware of the Health Risk Evaluations at

12

that time?

13

A.

I am not sure if he was aware or not.

14

Q.

When, to your knowledge, did he first become

15
16
17
18
19

aware of the Health Risk Evaluations?


A.

I met Dr. Williams, or spoke to him, the first

time around August of 2015.


Q.

And did you speak with him about the vanadium

and hexavalent chromium?

20

A.

I don't remember.

21

Q.

Do you remember what you did speak about?

22

A.

I don't remember.

23
24
25

I just remember meeting him

for the first time.


Q.

When do you remember first speaking with Dr.

Williams about hexavalent chromium and vanadium and the

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Health Risk Evaluations?

A.

Probably this year.

Q.

And has Dr. Williams expressed any concerns

Earlier this year.

about the Health Risk Evaluations at any time ---

A.

(Interposing) No.

Q.

--- to your knowledge?

A.

No.

Q.

Has DHHS revoked the Health Risk Evaluations?

A.

The Department rescinded the use

10

recommendation.

11

Q.

12

recommendation?

13

A.

Yes.

14

Q.

Or the "do not use" recommendation?

15

A.

The recommendation not to use the water for

16
17

And that was DHHS that rescinded the use

cooking or drinking.
Q.

18

Was rescinded?
(Witness nods affirmatively.)

19

Q.

Yes?

20

A.

Yes.

21

Q.

Got it.

22

Does that mean that DHHS also issued

the "do not use" recommendation?

23

A.

Yes.

24

Q.

And then DEQ -- DHHS and DEQ issued the "do

25

not use" recommendation, is that right?

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2

A.

PAGE 132

The HRE form is a Health Risk Evaluation from

the Department of Health and Human Services.

3
4

4/27/16

Q.

And it was DHHS that rescinded the "do not

use" recommendation?

A.

Yes.

Q.

Did DEQ rescind the "do not use"

recommendation?

A.

9
10
11
12

Did they join DHHS in rescinding ---

(Interposing) DEQ -- Mr. Reeder and Dr.

Williams wrote a joint letter together.

That is all I

know.
Q.

Has any new information come to light since

the "do not use" recommendations were issued?

13

MS. LeVEAUX:

Objection.

14

THE WITNESS:

Yes.

15

BY MS. BLAKE:

16

Q.

What is that new information?

17

A.

Public water supply levels for hexavalent

18
19
20

chromium.
Q.

And that was not known at the time that the

"do not use" recommendations were sent?

21

A.

By who?

22

Q.

By DHHS.

23

A.

Yes.

24

Q.

Yes, it was not known?

25

A.

Say the question again.

I mean ---

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Were the hexavalent chromium levels in public

water supplies known to DHHS at the time that they issued

the "do not use" recommendations?

A.

No.

Q.

How did DHHS become aware of the public water

levels?

A.

I don't know how.

Q.

Has any other information come to DHHS's

attention?

10

A.

Not that I am aware of.

11

Q.

Any other information related to vanadium?

12

A.

Not that I am aware of.

13

Q.

So the basis for rescinding the "do not use"

14

recommendations was the discovery of water levels of

15

hexavalent chromium and vanadium ---

16

MR. ROBBINS:

17

BY MS. BLAKE:

18

Q.

Objection.

--- in public water supplies?

19

MR. ROBBINS:

Objection.

20

MS. LeVEAUX:

Objection.

21

MR. LONG:

Objection.

22

THE WITNESS:

Whatever it says in the letter

23

is how the authors used -- made their decision.

24

whatever it states in there is what they used.

25

So

BY MS. BLAKE:

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And I believe you mentioned earlier that you

had seen the letter revoking the "do not use"

recommendation ---

A.

(Interposing) Yes.

Q.

--- before it was sent to the residents?

A.

Yes.

Q.

What was your involvement in creating the

letter rescinding?

A.

I helped Dr. Williams in a conference with

10

leadership about how to -- with this information, how to

11

draft up the letter.

12

Being a Ph.D. in a room of M.D.'s, I was the one that had

13

to type, but eventually, you know, Dr. Williams took over

14

that process.

15
16

Q.

And I was on a computer screen.

And he was just thinking out loud.

So you said there was a room of M.D.'s.

Who

all was in the room?

17

A.

Not strictly speaking.

Myself, Dr. Davies,

18

Dr. Williams, and I -- those I know for sure.

I don't

19

want to speculate because, you know, meetings blend.

20

don't -- I don't recall.

21

for sure.

That is the only ones I know

22

Q.

Were there any toxicologists in the room?

23

A.

No.

24

Q.

Were there any Health Risk Assessors in the

25

room?

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A.

No.

Q.

And you were -- when you say that you were

typing things out, was that the letter that you were

drafting?

A.

Yes.

Q.

And was Dr. Williams -- you said he was

speaking out loud.

Was he dictating the letter or ---

A.

Brainstorming.

Q.

And what ideas did he come up with in the

10
11
12

brainstorm?
A.

I don't recall the specifics of that.

don't recall.

13

Q.

14

down ---

15

A.

(Interposing) No.

16

Q.

--- that you were typing?

17
18
19

I just

And did you retain the notes that you took

What happened to

the notes?
A.

It was not my computer, and I don't know what

happened to them.

20

Q.

Whose computer was it?

21

A.

I don't know.

22

Q.

Did Dr. Williams take the computer at the end

23
24
25

of the meeting, or --A.

I don't remember.

I don't know.

It was someone's computer.

I just don't know whose computer that was.

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Q.

speaking about?

A.

4/27/16

PAGE 136

And what time was this meeting that you are

Late winter, early spring.

that is the correct term.

right.

Late winter --

It was late winter.

That is

Q.

And why was the meeting convened?

A.

Dr. Williams likes to meet with people and to

speak out loud.

Q.

10
11

That is what he likes to do.

Was the purpose of the meeting to create a

letter revoking the "do not use" recommendation?


A.

The purpose of the meeting was to discuss the

12

rescission of the health use recommendation -- use

13

recommendation.

14

Q.

And who called the meeting?

15

A.

Dr. Williams.

16

Q.

And who made the decision the letter revoking

17

the "do not drink" recommendations?

18

A.

That would be Dr. Williams.

19

Q.

Was anyone else involved in that decision?

20

A.

I don't know.

21

Q.

Were you involved in that decision?

22

A.

No.

23

Q.

Was Dr. Davies involved in that decision?

24

A.

Not that I am aware of.

25

Q.

What did Dr. Williams base his decision on?

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Dr. Williams based the rescission on the

information that he describes in the letter that he

wrote.

Q.

Was DEQ involved in the meetings -- in any

meetings discussion the rescission of the "do not drink"

recommendation?

A.

I don't know that.

Q.

Was DEQ involved in any meetings that you were

in discussing the "do not use" recommendations?

10

A.

No.

11

Q.

And you said earlier that the new information

12

that had come to light since the "do not drink"

13

recommendations were first sent was the water

14

contamination levels in public water supplies.

15

know which public water supplies in particular?

Do you

16

A.

No.

17

Q.

Do you know whether that was North Carolina

18

public water supplies?

19

A.

I wouldn't know that.

20

Q.

Would anyone besides Dr. Williams know?

21

A.

I wouldn't know.

22

Q.

Did anyone at DHHS express any reservations

23

about withdrawing the "do not use" recommendations?

24

A.

Yes.

25

Q.

Who expressed reservations?

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A.

Me.

Q.

What were your reservations?

A.

It was confusion.

Q.

Can you give a little bit more detail?

A.

It is ---

Q.

Why would the well owners be confused?

A.

You said one thing and then changed your mind.

Q.

And do you think the well owners have been

Confuse the well owners.

confused?

10

A.

I wouldn't know.

11

Q.

Have any well owners contacted you?

12

A.

Yes.

13

Q.

And have they been clear on what is going on?

14

A.

I assume they called because they had

15
16
17

questions.
Q.

Did you have any other reservations about

withdrawing the "do not use" recommendations?

18

A.

No.

19

Q.

Did anyone else at DHHS have any reservations

20

about withdrawing the "do not use" recommendations?

21

A.

Yes.

22

Q.

Who else?

23

A.

Ken Rudo.

24

Q.

What were his reservations?

25

A.

I don't know.

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Q.

How do you know that he had reservations?

A.

Because he said he didn't like it.

Q.

Did he give any explanation?

A.

No.

Q.

Did anyone else at DHHS have reservations?

A.

No.

Q.

Did anyone at DEQ have any reservations?

A.

I wouldn't know.

Q.

Was the Secretary of DEQ, Don Van der Voort,

10

involved in any of the discussions about whether to

11

rescind the "do not use" recommendations?

12

A.

I don't know.

13

Q.

Was Governor McCrory involved in any of the

14

discussions?

15

A.

I don't know.

16

Q.

Was Duke Energy involved in any discussions

17

about the rescinding of the "do not use" recommendations?

18

A.

I don't know.

19

Q.

Has Duke Energy been in any meetings related

20

to the hexavalent chromium and vanadium standards --

21

health screening levels, more generally?

22

A.

Yes.

23

Q.

Can you tell me about those meetings?

24

A.

I was not invited.

25

Q.

Who was at those meetings?

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A.

Dr. Davies.

Q.

And did you hear anything about the meetings

afterwards?

A.

No.

Q.

How many meetings?

A.

I don't know.

Q.

What time frame did the one meeting that you

know of happen?

A.

10
11
12

I know at least one.

I don't -- it would be 2015.

I don't know

that precise date.


Q.

And do you know anything about the topic of

the meeting?

13

A.

No.

14

Q.

Which residents received the withdrawal of the

15
16

"do not drink" recommendations?


A.

I was not involved in sending the letters,

17

personally, nor was I involved with the determination of

18

who got a letter and who did not.

19
20

Q.

Who was involved in the determination of who

got a letter and who did not?

21

A.

That would be Dr. Williams.

22

Q.

What did he base his determination on?

23

A.

According to the letter, he based his

24
25

decisions on the -- what he stated in his letter.


Q.

Did residents receive the letter even if they

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1

PAGE 141

had exceedances of other contaminants, like iron?

2
3

4/27/16

A.
know.

I wouldn't know.

I don't think so.

I don't

I don't know.

Q.

You said you wouldn't think so.

Why not?

A.

If you had multiple contaminants besides just

one single contaminant, and if you are basing you

decision according to the letter, if they had other

contaminants they probably would not get that letter.

9
10

Q.

Which pollutant causes more serious effects;

iron or hexavalent chromium?

11

A.

Hexavalent chromium.

12

Q.

And did residents receive the rescission of

13

the "do not use" recommendation even if they had

14

hexavalent chromium at greater than 10 parts per billion?

15
16
17

A.

I don't -- I didn't see that, so I can't

verify -- say yes on that.


Q.

So I don't know.

Do you know whether DHHS has kept track of

18

which residents it sent the withdrawal of the "do not

19

drink" recommendations to?

20

A.

The -- as far as the letter, I don't know if

21

anybody kept a log of that -- you know, exact -- Mr. and

22

Mrs. Smith, Mr. and Mrs., you know, Jones received this

23

letter on this day.

24

don't know.

25

Q.

I don't have that letter and I

Do you know who would know?

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MR. ROBBINS:

Objection.

THE WITNESS:

The Communications Office.

BY MS. BLAKE:

4
5

Q.

Anyone in particular at the Communications

Office?

A.

No.

Q.

Do you know if DHHS was planning to keep any

"do not use" recommendation in place for residents on the

basis of hexavalent chromium contamination?

10

A.

Say that again?

11

Q.

Was DHHS -- does DHHS plan to keep any "do not

12

use" recommendations in place on the basis of hexavalent

13

chromium contamination?

Will they leave it in place?

14

A.

I don't -- I don't know.

15

Q.

Does DHHS have any plans to revoke the "do not

16

use" recommendations for other pollutants, like iron or

17

lead?

18

A.

I don't know.

19

Q.

If DHHS did have any plans, would you know

20

about them?

21

MR. ROBBINS:

Objection.

22

THE WITNESS:

I don't -- I don't know.

23

BY MS. BLAKE:

24
25

Q.

Have you been instructed not to discuss the

safety standards -- the Health Screening Levels for

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drinking wells?

A.

No.

Q.

It has been reported in the media that DHHS

representatives have stated that DHHS is not able to

comment further on the safety recommendations until the

General Assembly take action.

Is that a true statement?

MR. ROBBINS:

Objection.

THE WITNESS:

I don't know.

BY MS. BLAKE:

10
11
12

Q.

Have you been instructed not to discuss the

Health Screening Levels with the media?


A.

Our policy when dealing with the media in DHHS

13

is to route all calls through our Communications Office,

14

regardless of the topic and regardless of the

15

circumstances.

16

contact us for specifics.

17

been in place for several years.

18

Q.

They are our spokesman.

And then they

That is our policy.

It has

Has anyone in the Communications Office

19

contacted you about specifics related to the withdrawal

20

of the "do not use" recommendations?

21

A.

I don't recall.

The answer is no.

22

Q.

One more thing.

You mentioned earlier that

23

the Center for Disease Control had approved the Cancer

24

Slope Factor that DHHS used for the hexavalent chromium

25

screening level?

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A.

Yes.

Q.

Was that approval in writing or was it oral

approval?

A.

The HC for Toxic Substance and Disease

Registry at the Center for Disease Control and Prevention

vetted our numbers.

the, you know, correct Cancer Slope Factor?"

agreed that this was the correct slope factor.

done by e-mail.

10
11

The question to them was, "Is this

MS. BLAKE:

And they
It was

If we can go off the record

for a second.

12

MS. BLAKE:

13

(A BRIEF RECESS WAS TAKEN.)

14

MS. BLAKE:

15

BY MS. BLAKE:

16

Q.

Okay.

OFF THE RECORD.

2:05 P.M.

ON THE RECORD.

2:16 P.M.

So just a few final questions.

You

17

said that your -- I guess the experts -- the toxicologist

18

and the Health Risk Assessors, Dr. Rudo and Sandy Mort --

19

set the screening level for hexavalent chromium; is that

20

right?

21

A.

That is correct.

22

Q.

And then what was -- what was your role at

23
24
25

that point?
A.

My role for setting the screening levels was

making sure that we had vetting processes.

For example,

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make sure that, you know, when we do something like

hexavalent chromium, that we run it by Division of Waste

Management so we are all in agreement with each other.

We also sent it to CDC for our risk -- for not risk, but

for the Cancer Slope Factor, and try to vet that through

different processes -- those processes, so we made sure

that we have confidence in the number that we are setting

out.

It is kind of like a quality control.

You

10

know, let's let the Division of Environmental -- Division

11

of Waste Management look at it, because we work with them

12

the most, and, you know, because they are familiar with

13

the 2L calculation.

14

important in getting the CDC to make sure that the Cancer

15

Slope Factor was an appropriate number.

16

the two things -- as a manager, I wanted to make sure

17

that we had vetting and that the numbers we started the

18

process with was correct.

And so getting them to vet.

It is

And those were

19

Q.

And you felt confident that ---

20

A.

(Interposing) And I felt comfortable.

21

Q.

And what was your supervisor, Dr. Davies role

22

in setting the standards?

23
24
25

A.

Once we set the standards, I presented them to

Q.

And what did she do at that point?

her.

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4/27/16

I don't recall what she did.

PAGE 146
I don't recall

what she did with the number.

I briefed her on the

number, and had the toxicologist come in and hear the

basis of how it was calculated, what we vetted it

through, and any questions that she had.

Q.

And did she approve that screening level?

A.

I think -- I don't recall, but my -- I think

so.

that.

10
11

I think so.

Q.

I am not sure of the exact words on

But you don't -- she did not disapprove it, is

that right?

12

A.

That is -- yes.

13

Q.

She didn't give disapproval.

And what was Dr.

14

-- I guess Dr. Williams was not there at the time.

What

15

was Dr. Williams' role in sending out -- I guess, did Dr.

16

Williams have any role in this process before the

17

decision and discussions to rescind the "do not use"

18

recommendations?

19

A.

He had no role.

20

Q.

And to your knowledge, has DHHS ever rescinded

21

a "do not use" recommendation before?

22

A.

Not to my knowledge, no.

23

Q.

And so you -- what I have heard you say today

24

in the deposition is that you all followed the standard

25

procedures in setting the Health Screening Levels, and in

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sending out the Health Risk Evaluations.

Is it part of

the standard procedure at DHHS to take into account

contamination levels in other water supplies when making

a safety recommendation about a particular water supply?

A.

No.

Q.

And do you know if anyone at DHHS has ever

received anything of value from Duke Energy?

A.

Not to my knowledge.

Q.

No gifts or trips or anything ---

10

A.

(Interposing) Not to my knowledge.

11

Q.

Do you know if anyone at DEQ has ever received

12

anything of value from Duke Energy?

13

A.

Not to my knowledge.

14

Q.

And is there anything else that you would like

15
16

to add at the end of the questioning here?


A.

17
18

No.
MS. BLAKE:

my questions.

All right.

And that concludes

Thank you so much for your time today.

19

MS. LeVEAUX:

I don't have any questions.

20

MR. LONG:

I have got a few.

21

D I R E C T

22

BY MR. LONG:

23

Q.

E X A M I N A T I O N

Dr. Shehee, my name is Nash Long.

2:21 P.M.

And I am

24

representing Duke Energy and I have got a few questions

25

for you this afternoon.

Thank you for your patience.

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wanted to start with the HRE -- the Health Risk

Evaluation form.

augmented for purposes of these projects, is that right?

You said earlier that it had been

A.

That is -- yes.

Q.

And if I understood you correctly, you said

that you, at the department, usually check for different

constituents; is that right?

A.

Yes.

Q.

And in checking for different constituents on

10

new wells, what were you referring to in that testimony?

11

What were the different constituents that you would

12

typically check for?

13

A.

I would have to -- you know, I would have to

14

look at the entire list.

I would have to look at the

15

list, because I always have to look at the list because

16

we deal with a lot of different contaminants in different

17

areas.

18

would be the two categories that we would look at for new

19

well -- new wells.

20

would include mercury among others.

It would be your inorganics and your microbials

And that would include arsenic.

That

21

Q.

What about hexavalent chromium?

22

A.

No, sir.

23

Q.

That is not typically checked for?

24

A.

That is not checked for under the 3800 Rules.

25

Q.

And why is that, if you know?

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A.

I don't know.

Q.

What about vanadium; is that typically checked

A.

No.

Q.

Do you know why it is not?

A.

I have no idea.

Q.

We were talking this morning about setting the

for?

Health Base Screening Level for hexavalent chromium, so

if we could go back to that.

You said in your testimony

10

that there was a toxicologist that was involved.

And I

11

am not sure that I caught the name of the toxicologist

12

for setting that Health Base Screening Level for

13

hexavalent chromium?

14

A.

That would be Dr. Rudo.

15

Q.

Any other toxicologists involved in that?

16

A.

Sandy Mort.

17

Q.

Any others?

18

A.

Except for the people -- oh, Dave Lilley, over

19

in Division of Waste Management, who we vetted the number

20

through.

21

Q.

And also Hanna Assefa.


And for setting the Health Base Screening

22

Level for vanadium, was it the same group of

23

toxicologists that were involved?

24

A.

The only one I know for sure is Dr. Rudo.

25

Q.

Thank you.

All right.

Can we look at some of

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the exhibits you looked at this morning?

A.

Yes, sir.

Q.

The first one I want to talk about is Exhibit

277, which is the one pager.

(Witness peruses documents.)

And you were referred by the lawyer -- you

were referred to a number about the middle of that second

paragraph of 0.000035 milligrams per liter.

that?

Do you see

10

A.

Yes, sir.

11

Q.

And it says here in this paragraph that that

12

says, "The EPA screening level for hexavalent chromium in

13

tap water (.000035 milligrams per liter)"

14

that correctly, that entire phrase?

15

Did I read

(Witness peruses document.)

16

A.

I think so.

17

Q.

Do you understand that to be some sort of EPA

18

MCL for hexavalent chromium?

19

A.

I see that as an EPA screening level.

20

Q.

Not as an EPA MCL?

21

A.

It does not say MCL on there.

22

Q.

And that is not the way you interpret it?

23

A.

That is not the way I would interpret it.

24

Q.

So we were talking again about setting the

25

Health Base Screening Level for hexavalent chromium and

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vanadium and had you personally been involved in setting

Health Base Screening Levels for other constituents prior

to this project?

A.

No, sir.

Q.

This was the first time?

A.

Yes, sir.

Q.

Do you know whether any of the other people at

DHHS that were involved in this project with you, whether

they had worked on setting a Health Base Screening Level

10

prior to these projects?

11

A.

Yes.

12

Q.

Who is that?

13

A.

Dr. Rudo.

14

Q.

And who else?

15

A.

That is all I know for sure.

16

Q.

What had he worked on previously?

17

A.

He worked on vanadium.

18

Q.

Do you know approximately when he worked on

20

A.

I do not.

21

Q.

But it was prior to this project?

22

A.

Yes.

23

Q.

Your current position is the Director of which

19

that?
I don't recall.

24

division or department within the Department of Health

25

and Humans Services?

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A.

4/27/16

PAGE 152

I am a Program Manager, Branch Head for the

Occupational and Environmental Epidemiology Branch in the

Division of Public Health in the Department of Health and

Human Services.

Q.

And how long have you had that position?

A.

About four years.

Q.

And what was your position prior to that in

the department?

A.

I was the Supervisor of the Medical Evaluation

10

and Risk Assessment Unit.

11

years also.

12
13
14
15
16
17

Q.

And I did that for about four

And what was your position with the department

before that?
A.

I was an Epidemiologist working with harmful

algal blooms, toxins and Outreach.


Q.

And was that your entry position at the

department?

18

A.

Yes.

19

Q.

Do you have familiarity with any other Health

20

Base Risk Assessments that have been done by the

21

Department of Health and Human Services, other than the

22

two we have been talking about today on hexavalent

23

chromium and vanadium?

24
25

A.

We do a variety of Risk Assessments.

We do

site specific analyses of U.S. EPA NPL sites, which is

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National Priority Listing.

Waste Management on a lot of projects in which we provide

information, public health assessments and outreach

education and community engagement.

5
6

Q.

We work with the Division of

So the Department has done several other

Health Base Risk Assessments?

A.

Yes, sir.

Q.

But these are the only two that you have had

personal involvement in?

10

A.

Yes.

11

Q.

Why is it that you were personally involved in

12
13

these two projects, as opposed to the others?


A.

The other ones were done -- this was a statute

14

that was passed.

15

statute.

16

sites, those are established procedures by the CDC in

17

working in conjunction with EPA, so those procedures are

18

about 20 years old -- 10 to 20 years old.

19

statute that came out.

20

Q.

And we were not familiar with the

This is -- when we do site specific Superfund

This was a new

Focusing on the Health Base Screening Level

21

that you worked on for hexavalent chromium, I am looking

22

at Exhibit 274.

23

(Witness peruses document.)

24

And as I understand your testimony, this is a

25

spreadsheet that shows the calculation that was done for

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the hexavalent chromium Health Base Screening Level?

A.

Yes.

Q.

It indicates that the source of the Cancer

Slope Factor was IRIS draft 6-Cr document 2010?

A.

Yes.

Q.

Okay.

A.

Yes.

Q.

Oh hexavalent chromium?

10

A.

Yes.

11

Q.

That, at the time this was done, was

12

That is a draft document prepared by

EPA?

approximately five years old?

13

A.

Yes.

14

Q.

Is it typical procedure for the Health Base

15

Screening Levels to be based upon draft documents?

16

A.

Yes.

17

Q.

Can you give me some examples?

18

A.

I don't know off the top of my head.

My

19

toxicologist would be a better person to address that

20

question.

21

Q.

And by that you mean Dr. Rudo?

22

A.

Dr. Rudo.

23

Q.

Are you aware of any criticisms that have been

24

lodged against this particular draft document in the

25

academic literature?

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PAGE 155

A.

No, sir.

Q.

You haven't heard anything about that?

A.

No.

Q.

There was some discussion this morning about

basing the Health Base Screening Level on an incremental

lifetime cancer risk of one in a million.

that?

Do you recall

A.

Yes.

Q.

And what does it mean when we are talking

10

about lifetime?

11

context?

12

A.

What is the frame of years in that

The way this formula is calculated, it uses

13

the -- they have certain factors that they use.

14

one is calculated at 70 years.

15
16

Q.

Seventy years.

And this

And that was the number that

was used in Exhibit 274?

17

(Witness peruses document.)

18

A.

Yes.

19

Q.

And the amount of two liters per day, in terms

20

of water intake, do you know where that comes from?

21

A.

No.

22

Q.

Do you know how typical it is that a person

23

ingests two liters of water per day?

24

A.

I wouldn't know that.

25

Q.

Was there any literature that was considered

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PAGE 156

by the department in setting the Health Base Screening

Level for hexavalent chromium?

3
4

A.

That would be a question that would best

answered by my toxicologist.

He is my expert.

Q.

And that would be the same for vanadium?

A.

Yes, sir.

Q.

But for your purposes -- for the work you did

in setting the Health Base Screening Levels for

hexavalent chromium and vanadium, did you consult any

10

literature on the topics?

11

A.

I did not calculate it personally.

12

Q.

But did you consult any literature in relation

13

to these projects?

14

A.

Yes.

15

Q.

What did you consult?

16

A.

Fact sheets from the Agency for Toxic

17

Substance and Disease Registry, the U.S. EPA website for

18

Health Risk Assessment.

19

main ones I recall right now.

20
21

Q.

Those are the main -- the two

And what information did you take from the

fact sheets for purposes of your work on these projects?

22

A.

Can you be more specific, please?

23

Q.

Well first, let start here.

24
25

Why did you pull

those documents or resources?


A.

The reason I pulled those documents was to get

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a better understanding of the basics of contaminants.

Q.

And did you find what you were looking for

A.

Yes.

Q.

Was there any specific information that you

there?

recall relying on that you found in either of those two

documents?

8
9
10

A.

Can you be a little more specific in that

question, because there is a lot in those documents.


Q.

What was important to you that you found in

11

those documents for purposes of the work that you did on

12

these projects?

13

A.

General information about health effects.

14

Q.

Anything else that you recall?

15

A.

No.

16

Q.

Was there anything in either of those

17

documents about, you know, screening levels or MCL's that

18

you were relying on?

19

A.

No.

20

Q.

This screening level for hexavalent chromium

21

of .07, was that set on an assumption of inhalation or

22

digestion?

23

A.

Digestion.

24

Q.

And was there any evidence that the Department

25

assembled to support the view that hexavalent chromium

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can cause cancer when it is ingested at that Health

Screening Level of .07?

A.

.07 is protective, which means at that level

we would -- at .07 parts per billion and below, we would

not expect adverse health effects, or any cancer effects

-- an increased risk of cancer at or below that number.

7
8
9
10
11

Q.

And what was the evidence that the Department

assembled to come to that conclusion?


A.

You would have to ask my toxicologist for the

evidence.
Q.

We talked a little bit this morning, or you

12

testified this morning -- let me accurate here.

You

13

testified this morning about the letters that were sent

14

to well owners about the HREs.

15

there also some mechanism that the Department has to

16

address exceedances of a Health Screening Level in public

17

water supplies, like in city water?

And I want to ask you, is

18

A.

No.

19

Q.

Something I was not clear about that was asked

20

about earlier this morning, is in the vanadium screening

21

level project, Dr. Rudo came to you early on and

22

suggested that the vanadium number should be higher; is

23

that what you said?

24

A.

Yes.

25

Q.

So the screening level number should be higher

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 158 of 174

MINA WALLIN SHEHEE, Ph.D.


1

4/27/16

PAGE 159

than .3 micrograms per liter?

A.

Yes.

Q.

Do you know what he was basing that on?

A.

No, you will have to ask Dr. Rudo.

Q.

Are you aware that vanadium is sometimes found

in over-the-counter vitamin supplements?

A.

No.

Q.

Can I ask you to look at Exhibit 279, which is

the June 4, 2015 letter?

10

(Witness peruses documents.)

11

A.

I have that in front of me.

12

Q.

On page 5 of 30 was what the lawyer showed you

13

previously, if we could turn to that.

14

A.

It is this page right here (indicating)?

15

Q.

It looks like it.

It says "5 of 30" in the

16

bottom right-hand corner.

Do you recall that you were

17

asked about the number for "chromium, hexavalent," the

18

third item from the bottom in this list?

19

A.

Yes.

20

Q.

And the number reflected here under the result

21

column for that constituent is 22.3 micrograms per liter?

22

A.

Yes.

23

Q.

There is also a reference to chromium higher

24

up in the column.

What is the relationship here between

25

"chromium" and "chromium, hexavalent"?

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 159 of 174

MINA WALLIN SHEHEE, Ph.D.


1

A.

4/27/16

We would look at the total.

PAGE 160
We would look at

the chromium level and use the MCL for total chromium,

and we would use the Health Screening Level for

hexavalent chromium for the specific constituent of

hexavalent chromium.

6
7

Q.

is the total chromium number?

A.

similar.

10

Q.

11

So when the chromium result is reported, that

I am assuming in this document that it is

And the hexavalent chromium is a sub-part of

that total chromium number?

12

A.

Yes.

13

Q.

The "total chromium" number reported here is

14

21.8 micrograms per liter?

15

A.

Yes.

16

Q.

The hexavalent chromium number is 22.3

17

micrograms per liter?

18

A.

Yes.

19

Q.

How is that possible?

20

A.

I don't know.

21

Q.

Does that look correct to you?

22

A.

I don't know.

23

Q.

If hexavalent chromium is a subset of total

24

chromium, then, as reported on this document, can those

25

numbers be correct?

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 160 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 161

A.

I don't -- I don't know.

Q.

It doesn't look right, though, does it?

A.

Yes, it does.

Q.

How so?

A.

Because you are dealing with -- when you are

dealing with constituents at this low level, you can get

variation.

met, then you can take those numbers as is.

As long as the quality control standards are

Q.

"Quality control standards" meaning what?

10

A.

Make sure your trip (phonetic) samples were

11

done correctly, making sure the detection limits were

12

done -- are within the same level.

13

the toxicologist will check to make sure that the

14

sampling that was done is reasonable data to be

15

evaluated, and the toxicologist knows how to take these

16

chemical parameters and look at the -- look at that type

17

of data and then evaluate if it is good data or not.

18

it is not good data, then the toxicologist will not

19

accept it.

20
21

Q.

There are things that

There is a column here on this table -- the

far right column, entitled "qualifiers," do you see that?

22

A.

Yes.

23

Q.

There is one qualifier listed, do you see

A.

Yes.

24
25

If

that?

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 161 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2

Q.

4/27/16

PAGE 162

It is for the constituent "chromium,

hexavalent"?

A.

Yes.

Q.

And it is qualifier M6, right?

A.

If that is what it says on the form.

Q.

Can you turn over to page 27 of 30 under the

heading Analyte Qualifiers?

(Witness peruses document.)

A.

Uh-huh.

10

Q.

It has a description for the M6 qualifier, do

11

you see that?

12

A.

Yes.

13

Q.

Can you read that into the record?

14

A.

It is "Matrix spike and Matrix spike duplicate

15

recovery not evaluated against control limits due to

16

sample dilution."

17

Q.

What does that mean?

18

A.

My toxicologist would know the answer to that

19

question.

20

Q.

You don't have a view on that ---

21

A.

(Interposing) No, sir.

22

Q.

--- one way or the other?

23

A.

No.

24

Q.

Is it possible, as you sit here today, that

25

that number listed on page 5 of 30 for hexavalent

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 162 of 174

MINA WALLIN SHEHEE, Ph.D.


1

4/27/16

PAGE 163

chromium is incorrect?

(Witness peruses document.)

A.

The hexavalent chromium number?

Q.

Yes.

A.

Yes.

Q.

In setting the Health Base Screening Level for

hexavalent chromium, was there any assumption about

dermal exposure to vanadium -- I am sorry, hexavalent

chromium?

10
11

A.

That would be a question for my toxicologist

to address.

12

Q.

Same answer about vanadium?

13

A.

Same answer for vanadium.

14

Q.

Are you aware of any cancer cluster studies

15

done for populations around the coal ash basins in North

16

Carolina?

17

A.

The Cancer Registry may have done one.

18

don't know.

19

But if anybody does it, it is the Cancer Registry.

20
21

Q.

I am going to correct that.

All right.

I don't recall.

I have an exhibit to mark, what

are we up to?

22

COURT REPORTER: 280.

23

MR. LONG:

24

BY MR. LONG:

25

Q.

280?

Okay.

I only have two copies here.

My copy machine

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 163 of 174

MINA WALLIN SHEHEE, Ph.D.


1

4/27/16

PAGE 164

didn't work, but if we can share.

(DEFENDANT EXHIBIT 280 WAS

MARKED FOR IDENTIFICATION.)

(Witness peruses document.)

A.

Okay.

Q.

Okay.

Dr. Shehee, we have shown you what has

been marked as Exhibit 280, which appears to be at least

a portion of an e-mail from you to Dr. Davies dated

August 20th of 2015.

Do you see that?

10

A.

Yes.

11

Q.

Do you recall this e-mail exchange?

12

A.

Just vaguely.

13

Q.

What is it about?

14

A.

There was a --- I am not sure.

I can't -- I

15

can't remember, unless I see a series of e-mails to lead

16

up to it.

17

things were happening.

18

like -- other -- number one, look at the whole e-mail.

19

And number two, you know, the previous e-mails that led

20

up to it if there were any.

21
22

Q.

It helps me to understand, because a lot of


So I would need more, kind of

Yes, that is fair.

That helps to look at that.


This is all I have got,

though.

23

A.

Yes.

24

Q.

This is how it was produced to us, so I am

25

struggling with you.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 164 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

A.

Okay.

Q.

Let me ask this question, then.

PAGE 165

So under the

title -- I am sorry, the bold heading, "Questions

regarding hexavalent chromium or vanadium," there is a

paragraph that starts "Hexavalent chromium [vanadium]."

Do you see that?

A.

Yes.

Q.

All right.

Was that paragraph what you wrote

into the e-mail?

10

A.

I am trying -- when I read this, I was trying

11

to figure out what I wrote and what I didn't write.

12

don't -- I don't know.

13

recall.

I am thinking -- I just don't

14

Q.

Okay.

15

A.

Actually, I don't recall doing this, but that

Q.

Well, let me just ask you this: that paragraph

16
17

is ---

18

-- and I will read it just for the record so that

19

everybody has the benefit of it.

20

A.

Sure.

21

Q.

"Hexavalent chromium [vanadium] is a new

22

concern in water chemistry.

Much is unknown about it.

23

Because of this, public health will typically start with

24

a very health protective level along with conservative

25

recommendations.

We will continue to evaluate the

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 165 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 166

science behind hexavalent chromium [vanadium] as it

evolves."

written true, in your opinion?

And my question is, is that paragraph as

A.

Yes.

Q.

So we are up to 281, I think.

281.

(DEFENDANT EXHIBIT 281 WAS

MARKED FOR IDENTIFICATION.)

8
9

Let me know when you have had a chance to look


at it.

10

(Witness peruses document.)

11

A.

Okay.

12

Q.

I want to refer to the second e-mail on the

13

page, which is from you to Rick Langley and others, dated

14

August 21 of 2015.

15

Health Study," do you see that?

And the Subject line is "Forwarded:

16

A.

Yes.

17

Q.

What do you recall about this health study?

18

A.

I think there was a request to look at cancer

19

rates at locations -- and it doesn't say the location.

20

It doesn't say -- except for the second paragraph, it

21

says "surrounding vanadium."

22

study.

23

this doesn't really give me enough information to know

24

which one, because we do a lot of them.

25

So we do a lot of cancer

We request things from the Cancer Registry.

And

We do a lot of requests to the Cancer

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 166 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 167

Registry.

So without any specific -- "Please see short

deadline.

I think we are 32 or so ponds in North

Carolina."

North Carolina.

Q.

I would assume it is dealing with ponds in


It doesn't say which ponds.

You would assume that they are referring to

ash ponds?

A.

Don't know.

Q.

Do you recall anything further, after this

9
10

It just says "ponds."

series of e-mails, about a cancer study relating to


ponds?

11

A.

We would get a copy of that study.

And

12

nothing comes to mind that was notable -- if we got a

13

copy of that.

14

records to see -- to see that data again.

15

recall at this time any of the specifics of this health

16

study.

17

Q.

So I would have to go back and check my


I just don't

As we sit here today, in April of 2016, do you

18

believe that this study referred to in Exhibit 281 would

19

have been completed?

20

A.

Yes.

21

Q.

And you think you might have records on that?

22

A.

Yes.

23

Q.

In your e-mail of August 21, 2015, at the

24

second paragraph you write, "This will be tricky, since

25

the outcomes are so general.

See below."

What did you

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 167 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2

4/27/16

PAGE 168

mean by that?
A.

I just don't recall.

Normally, when I say

"general," that means the health outcomes are difficult

to pinpoint.

general if you are looking for health outcomes.

the data sets we have, they are not specific.

With the Cancer Registry, they are very


Some of

For example, if you are looking for

gastrointestinal illness, it is real general to see

trends.

But if you look for salmonella poisoning, that

10

is more specific.

11

tricky is.

12
13
14
15

Q.

That is an example of what the being

And that is also true with respect to the

health effects surrounding vanadium?


A.

I think I say in there, "This will be tricky,

since outcomes are so general."

16

Q.

Do you believe that to be correct?

17

A.

Yes.

18

(Pause.)

19

MR. LONG:

20

COURT REPORTER: 282.

282 is our next one?

21

(DEFENDANT EXHIBIT 282 WAS

22

MARKED FOR IDENTIFICATION.)

23
24
25

BY MR. LONG:
Q.

Dr. Shehee, I am showing you what we have

marked as Exhibit 282.

Let me know when you have had a

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 168 of 174

MINA WALLIN SHEHEE, Ph.D.


1

4/27/16

PAGE 169

chance to look over the two page document.

(Witness peruses document.)

A.

Yes.

Q.

Do you recognize this document?

A.

Yes.

Q.

What is it?

A.

It is an overview of what we have done, of

information.

And I can't remember or recall who this was

intended for.

It could have been internal, it could have

10

been anybody.

I am not sure who this went to.

11

Q.

Do you recall who prepared it?

12

A.

I want to say me, but I am not sure.

13
14

It looks

like something I would write for upper management.


Q.

So you have not looked at any report on cancer

15

incidence rates that you can recall for counties which

16

have coal ash storage facilities, as you sit here ---

17

A.

(Interposing) I would -- I would have to -- I

18

would have to read through the CCR report to see -- to

19

refresh my memory on that.

20

MR. LONG:

Okay.

21

MR. ROBBINS:

If we could reserve the right

22
23
24
25

We are done.

to review and sign, please.


MS. LeVEAUX:

And I am just going to need to

get copies of these exhibits, if we can do that.


MR. LONG:

I can give you my copy.

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 169 of 174

MINA WALLIN SHEHEE, Ph.D.


1
2

MS. LeVEAUX:
no questions.

4/27/16
That would be great.

PAGE 170
I have

We have no questions here.

MR. ROBBINS:

Thank you very much.

(THE DEPOSITION WAS CLOSED AT 2:59 P.M.)

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 170 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 171

S I G N A T U R E
I HAVE READ THE FOREGOING PAGES 8 TO 170 WHICH CONTAIN
A CORRECT TRANSCRIPT OF THE ANSWERS MADE TO THE QUESTIONS HEREIN
RECORDED. MY SIGNATURE IS SUBJECT TO CORRECTIONS ON ATTACHED ERRATA
SHEET, IF ANY.
______________________________________________
(SIGNATURE OF MINA WALLIN SHEHEE, Ph.D.)

STATE OF
COUNTY OF
I CERTIFY THAT THE FOLLOWING PERSON PERSONALLY APPEARED BEFORE ME
THIS DAY, AND I HAVE PERSONAL KNOWLEDGE OF THE IDENTITY OF THE
PRINCIPAL OR HAVE SEEN SATISFACTORY EVIDENCE OF THE PRINCIPALS
IDENTITY, OR A CREDIBLE WITNESS KNOWN TO ME HAS SWORN TO THE
IDENTITY OF THE PRINCIPAL, ACKNOWLEDGING TO ME THAT HE OR SHE
VOLUNTARILY SIGNED THE FOREGOING DOCUMENT FOR THE PURPOSE STATED
HEREIN AND IN THE CAPACITY INDICATED:
_______________________________
(NAME OF PRINCIPAL)
_______________________________________
(DATE)
_______________________________________
(SIGNATURE OF NOTARY)

(OFFICIAL SEAL)

_______________________________________
(NOTARYS PRINTED NAME)

*******************************************************************
I, MICHAEL B. CARTER, NOTARY/REPORTER, DO CERTIFY THAT THE
FOREGOING TRANSCRIPT WAS DELIVERED TO THE WITNESS EITHER DIRECTLY OR
THROUGH THE WITNESS ATTORNEY OR THROUGH THE ATTORNEY RETAINING THE
WITNESS ON ______________________, AND THAT AS OF THIS DATE, I HAVE
NOT RECEIVED THE EXECUTED SIGNATURE PAGE OR ERRATA SHEET.
THEREFORE, MORE THAN 30 DAYS HAVING ELAPSED SINCE THE RECEIPT
OF THE TRANSCRIPT BY THE WITNESS, THE SEALED ORIGINAL TRANSCRIPT IS
HEREBY FILED WITH THE ORDERING ATTORNEY BY MEANS OF PRIORITY MAIL IN
ACCORDANCE WITH THE NORTH CAROLINA RULES OF CIVIL PROCEDURE.
_________________________

______________________________

(DATE)

MICHAEL B. CARTER, NOTARY/REPORTER


NOTARY NUMBER 19960030065
MY COMMISSION EXPIRES FEBRUARY 15, 2021

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 171 of 174

MINA WALLIN SHEHEE, Ph.D.

4/27/16

PAGE 172

STATE OF NORTH CAROLINA


COUNTY OF NASH
C E R T I F I C A T E
I, MICHAEL B. CARTER, NOTARY PUBLIC-REPORTER, DO
HEREBY CERTIFY THAT MINA WALLIN SHEHEE, Ph.D. WAS DULY
SWORN BY ME PRIOR TO THE TAKING OF THE FOREGOING
DEPOSITION, THAT THE IDENTITY OF THE WITNESS WAS VERIFIED,
THAT SAID DEPOSITION WAS TAKEN BY ME AND TRANSCRIBED UNDER
MY DIRECTION, AND THAT THE FOREGOING 171 PAGES CONSTITUTE
A TRUE AND CORRECT TRANSCRIPT OF THE TESTIMONY OF THE
WITNESS.
I DO FURTHER CERTIFY THAT I AM NOT COUNSEL FOR
OR IN THE EMPLOYMENT OF ANY OF THE PARTIES TO THIS ACTION,
NOR AM I INTERESTED IN THE RESULTS OF THIS ACTION.
I DO FURTHER CERTIFY THAT THE STIPULATIONS
CONTAINED HEREIN WERE ENTERED INTO BY COUNSEL IN MY
PRESENCE.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND
THIS 2ND DAY OF MAY, 2016.

MICHAEL B. CARTER
NOTARY PUBLIC FOR THE
STATE OF NORTH CAROLINA
NOTARY NUMBER 19960030065
MY COMMISSION EXPIRES
FEBRUARY 15, 2021

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 172 of 174

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 173 of 174

Case 1:14-cv-00753-LCB-JEP Document 81-5 Filed 08/02/16 Page 174 of 174

PAGE 1
_________________________________________________________
NORTH CAROLINA
COUNTY OF WAKE

IN THE GENERAL COURT OF JUSTICE


SUPERIOR COURT DIVISION
13-CVS-11032
_________________________________________________________
STATE OF NORTH CAROLINA ex rel.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES,
Plaintiff,
V.
SIERRA CLUB, WATERKEEPER ALLIANCE,
NEUSE RIVERKEEPER FOUNDATION,
WINYAH RIVERS FOUNDATION, ROANOKE
RIVER BASIN ASSOCIATION, and CAPE
FEAR RIVER WATCH, INC.,
Plaintiff-Intervenors,
v.
DUKE ENERGY CAROLINAS, LLC,

)
)
)
)
)
)
) DEPOSITION OF
) RANDALL WATTS
) WILLIAMS, M.D.
)
)
)
)
)
)
)
)
)
)
)
)

Defendant.
and
_________________________________________________________
NORTH CAROLINA
COUNTY OF MECKLENBURG

IN THE GENERAL COURT OF JUSTICE


SUPERIOR COURT DIVISION
13-CVS-14661
_________________________________________________________
STATE OF NORTH CAROLINA ex rel.
NORTH CAROLINA DEPARTMENT OF
ENVIRONMENT AND NATURAL RESOURCES,
Plaintiff,
V.
CATAWBA RIVERKEEPERS FOUNDATION,
INC., APPALACHIAN VOICES, YADKIN
RIVERKEEPER, MOUNTAINTRUE, DAN
RIVER BASIN ASSOCIATION, ROANOKE
RIVER BASIN ASSOCIATION, SOUTHERN
ALLIANCE FOR CLEAN ENERGY, and

)
)
)
)
)
)
) 13-CVS-14661
)
)
)
)
)
)
)

Case 1:14-cv-00753-LCB-JEP Document 81-6 Filed 08/02/16 Page 1 of 283

PAGE 2
WATERKEEPER ALLIANCE,

)
)
Plaintiff-Intervenors, )
)
v.
)
)
DUKE ENERGY CAROLINAS, LLC,
)
)
Defendant.
)
_________________________________________________________
WEDNESDAY, MAY 18, 2016
_________________________________________________________
ROOM 301
NORTH CAROLINA DEPARTMENT OF JUSTICE
114 WEST EDENTON STREET
RALEIGH, NORTH CAROLINA
7:58 A.M.
_________________________________________________________
VOLUME 1
PAGES 1 THROUGH 280
_________________________________________________________

Case 1:14-cv-00753-LCB-JEP Document 81-6 Filed 08/02/16 Page 2 of 283

PAGE 3
A P P E A R A N C E S
ON BEHALF OF THE PLAINTIFF:
ROY A. COOPER, III
ATTORNEY GENERAL FOR THE STATE OF NORTH CAROLINA
BY: ANITA LeVEAUX, SPECIAL DEPUTY ATTORNEY GENERAL
ENVIRONMENTAL DIVISION
GERALD ROBBINS, SPECIAL DEPUTY ATTORNEY
GENERAL
PUBLIC SAFETY SECTION
JOHN P. BARKLEY, ASSISTANT ATTORNEY GENERAL
HEALTH AND PUBLIC ASSISTANCE SECTION
NORTH CAROLINA DEPARTMENT OF JUSTICE
POST OFFICE BOX 629
RALEIGH, NORTH CAROLINA 27602-0629
DREW HARGROVE,
NORTH CAROLINA
QUALITY
217 WEST JONES
RALEIGH, NORTH

ASSISTANT GENERAL COUNSEL


DEPARTMENT OF ENVIRONMENTAL
STREET
CAROLINA 27603

ON BEHALF OF THE PLAINTIFF-INTERVENORS:


FRANK S. HOLLEMAN, III, SENIOR LITIGATOR
MYRA BLAKE, STAFF ATTORNEY
NICHOLAS S. TORREY, STAFF ATTORNEY
LESLIE GRIFFITH, ASSOCIATE ATTORNEY
SOUTHERN ENVIRONMENTAL LAW CENTER
601 WEST ROSEMARY STREET, SUITE 220
CHAPEL HILL, NORTH CAROLINA 27516-2356
919/967-1450
ON BEHALF OF THE DEFENDANT DUKE ENERGY:
BRENT A. ROSSER, ESQUIRE
HUNTON & WILLIAMS, LLP
BANK OF AMERICA PLAZA
101 TRYON STREET, SUITE 3500
CHARLOTTE, NORTH CAROLINA 28280
704/378-4707
MICHELLE S. SPAK
ASSOCIATE GENERAL COUNSEL
DUKE ENERGY
DEC45A
550 SOUTH TRYON STREET
CHARLOTTE, NORTH CAROLINA 28202
980/373-3698

Case 1:14-cv-00753-LCB-JEP Document 81-6 Filed 08/02/16 Page 3 of 283

PAGE 4
COURT REPORTER:
MICHAEL B. CARTER
PRECISION REPORTING & TRANSCRIBING, INC.
POST OFFICE BOX 1659
SPRING HOPE, NORTH CAROLINA 27882
252/478-6968
FAX: 252/478-6984
CELL: 919/215-3501

Case 1:14-cv-00753-LCB-JEP Document 81-6 Filed 08/02/16 Page 4 of 283

PAGE 5
T A B L E

O F

WITNESS

C O N T E N T S
DIRECT

CROSS

REDIRECT

RANDALL W. WILLIAMS, M.D.


BY MR. HOLLEMAN

8-191

BY MS. LeVEAUX

191-192

BY MR. ROSSER

192-267

BY MS. BLAKE

267-277

277-278

EXHIBITS
PLAINTIFF-INTERVENORS
NUMBER

DESCRIPTION

PAGE

297

NC DHHS LETTER DATED 10/15/2015 FROM


TOM REEDER AND RANDALL WILLIAMS TO
DEAR WELL OWNER RE: BACKGROUND WELL
SAMPLING (2 PAGES)

32

298

2013 ANNUAL DRINKING WATER QUALITY


REPORT CHARLOTTE-MECKLENBURG UTILITY
DEPARTMENT (8 PAGES)

41

299

ENVIRONMENTAL HEALTH JOURNAL ARTICLE


BY ATHENA LINOS, ET AL: ORAL INGESTION
OF HEXAVALENT CHROMIUM THROUGH DRINKING
WATER AND CANCER MORTALITY IN AN
INDUSTRIAL AREA OF GREECE - AN
ECOLOGICAL STUDY (7 PAGES)

53

300

CHART: HEXAVALENT CHROMIUM LIFETIME


INCREASED CANCER RISK (1 PAGE)

119

301

NC DEQ ENVIRONMENTAL REVIEW COMMISSION


REPORT DATED 1/13/2016 (38 PAGES)

210

302

US EPA RULE: THE THIRD UNREGULATED


CONTAMINANT MONITORING RULE (UCMR 3)
SEARCHING FOR EMERGING CONTAMINATES IN
DRINKING WATER (2 PAGES)

213

DEFENDANT

Case 1:14-cv-00753-LCB-JEP Document 81-6 Filed 08/02/16 Page 5 of 283

PAGE 6
EXHIBITS (CONTD)
DEFENDANT
NUMBER

DESCRIPTION

PAGE

303

NC MUNICIPAL WATER SUPPLY TESTING FOR


VANADIUM SPREADSHEETS (25 PAGES)

216

304

NC MUNICIPAL WATER SUPPLY TESTING FOR


CHROMIUM-6 SPREADSHEETS (24 PAGES)

216

305

E-MAIL CHAIN DATED 2/16/15 FROM MINA


SHEHEE TO MEGAN DAVIES RE: FW: 6Cr
REVISED TEXT (2 PAGES -130, 129)

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US EPA REPORT TOXICOLOGICAL REVIEW OF


HEXAVALENT CHROMIUM
(CAS NO. 18540-29-29)IN SUPPORT OF
SUMMARY INFORMATION IN THE INTEGRATED
RISK INFORMATION SYSTEMS (IRIS) DATED
SEPTEMBER 2010 DRAFT - DO NOT CITE OR
QUOTE EPA/635/R-10/004A (3 PAGES)

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SUBCHAPTER 2L - GROUNDWATER
CLASSIFICATION AND STANDARDS
SECTION .0100 GENERAL CONSIDERATIONS
(20 PAGES)

247

308

HOUSE BILL 765 - RATIFIED SESSION


LAW 2015-286 - PAGE 29 (1 PAGE)

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PLAINTIFF-INTERVENORS
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WINSTON-SALEM/FORSYTH COUNTY CITY/COUNTY


UTILITIES 2014 WATER QUALITY REPORT
(2 PAGES)

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CITY OF DURHAM DEPARTMENT OF WATER


MANAGEMENT WATER QUALITY REPORT 2013
(12 PAGES)

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PAGE 7
S T I P U L A T I O N S
PRIOR TO EXAMINATION OF THE WITNESS, COUNSEL
FOR THE PARTIES STIPULATED AND AGREED AS
FOLLOWS:
1.

OBJECTIONS TO QUESTIONS AND MOTIONS TO STRIKE

ANSWERS NEED NOT BE MADE DURING THE TAKING OF THIS


DEPOSITION, BUT MAY BE MADE FOR THE FIRST TIME DURING THE
PROGRESS OF THE TRIAL OF THIS CASE OR ANY PRE-TRIAL
HEARING HELD BEFORE THE JUDGE FOR THE PURPOSE OF RULING
THEREON OR AT ANY OTHER HEARING OF SAID CASE AT WHICH
SAID DEPOSITION MIGHT BE USED, EXCEPT AN OBJECTION AS TO
THE FORM OF A QUESTION MUST BE MADE AT THE TIME SUCH
QUESTION IS ASKED OR OBJECTION IS WAIVED AS TO THE FORM
OF THE QUESTION;
2.

THAT THE WITNESS DOES NOT WAIVE READING AND

SIGNING OF THE TRANSCRIPT.

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RANDALL W. WILLIAMS, M.D.


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PAGE 8

P R O C E E D I N G S

7:58 A.M.

(WHEREUPON,

RANDALL WATTS WILLIAMS, M.D.

WAS CALLED AS A WITNESS, DULY SWORN, AND TESTIFIED AS

FOLLOWS:)

6
7

MR. HOLLEMAN:

something that he wants to say.

8
9

And I think Mr. Rosser has

MR. ROSSER:

Yes.

As we understand it,

Dr. Williams has to leave today at 1:30?

10

THE WITNESS:

Yes.

11

MR. ROSSER:

In light of that, I was

12

suggesting to Frank before the deposition started that we

13

attempt to split the time so that Duke had an equal

14

opportunity to ask Dr. Williams questions, particularly

15

in light of our expectation that the

16

Plaintiff-Intervenors will release this transcript to the

17

public.

18

equal opportunity to ask questions.

We think it makes sense for Duke to have an

19

Frank indicated that he would "See how it

20

goes," I believe was his words, and that in the last

21

deposition that he took he noted that he took less time

22

than I did in questioning Dr. Davies.

23

note that for the record and indicate that we would like

24

an equal opportunity to ask Dr. Williams questions today,

25

rather than at a later date.

So I just want to

Case 1:14-cv-00753-LCB-JEP Document 81-6 Filed 08/02/16 Page 8 of 283

RANDALL W. WILLIAMS, M.D.


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2

5/18/16

MR. HOLLEMAN:
see how it goes.

So noted.

D I R E C T

BY MR. HOLLEMAN:

6
7

Q.

And I said, let's

Are we ready?

PAGE 9

E X A M I N A T I O N

7:59 A.M.

Dr. Williams, have you given a deposition

before?
A.

I have, Frank.

I tried to count them for you.

I think 20, and I think I have -- lets say in about 12

trials.

And that is significant because, as we talk

10

about the issue in front of us, certainly the skill sets

11

I developed in doing that kind of critical analysis of

12

issues and trying to look at situations as an expert

13

witness -- these were in medical malpractice mostly --

14

certainly helped me as I was trying to assess these

15

issues.

16

Director and Deputy Secretary for Health Services.

17

And I use that daily in my job as State Health

Also in the space, legally, I am on the Chief

18

Justice's Commission on professionalism, one of three

19

laypeople on that, and so certainly have a great respect

20

for the rule of law.

21

the Chief Justice talking about that, based on my

22

experiences overseas.

23

in this room Officers of the Court and, again, believe

24

that no man is above the law and that it should be

25

transparent.

Have traveled to other states with

So I consider all of the lawyers

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PAGE 10

And also in that space, the reason I got

interested in all of that was I was on a jury for a rape

and kidnaping trial when I was in high school.

certainly formed my opinion on this.

again, believe in the Rule of Law and happy to answer any

questions today that you have.

Q.

Okay.

And that

So very much,

Now, when you gave those number of

depositions, were those all in your capacity as an expert

witness?

10

A.

Frank, all the -- one was as a witness.

Back

11

in residency, there was a case that I wasn't named in but

12

I was involved with.

13

disability, which I was called in.

14

-- the last day of private practice I gave one, not as an

15

expert witness, but just a fact witness.

16

17 or so were as an expert witness.

17

Q.

And one has been, I think, in

All right.

And one was my most

But the other

You know this, but let me just say

18

it for the record.

19

question.

20

can't hear me, or otherwise need the question clarified,

21

please let me know and I will be glad to do that.

22

you know, you are under oath today as though we were in a

23

courtroom or before a judge, even though we are in a

24

conference room here in a state government building.

25

A.

I will be asking you a series of

If for any reason you don't understand me or

And as

Yes, sir.

Case 1:14-cv-00753-LCB-JEP Document 81-6 Filed 08/02/16 Page 10 of 283

RANDALL W. WILLIAMS, M.D.


1

Q.

college?

A.

5/18/16

PAGE 11

Now, Dr. Williams, where did you go to

I did my undergrad, medical school and

residency training at Chapel Hill.

Q.

And what was your undergraduate major?

A.

I was History/Zoology double major, and

graduated with honors in History.

8
9
10

Q.

And then when you graduated from medical

school, did you graduate in any specialty or just a


general ---

11

A.

(Interposing) General.

12

Q.

--- degree?

13

A.

Obstetrics and Gynecology.

14

Q.

And where did you do that?

15

A.

At Chapel Hill.

16

Q.

Do you have any other degrees or academic

17

And what was your residence in?

training, other than what you have just described?

18

A.

No, sir.

19

Q.

After you left UNC, where did you start work?

20

A.

I moved to Raleigh in 1989 and joined a

21

private practice, and had practiced there until last

22

year.

23

private practice, but for six of those years we were

24

owned by Rex.

25

Mostly in private practice -- well, always in

Q.

And in private practice, what kind of medicine

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RANDALL W. WILLIAMS, M.D.


1
2
3

5/18/16

PAGE 12

did you practice?


A.

I practiced obstetrics, delivered babies,

primary care, GYN, surgery/office space GYN.

Q.

What was the name of the practice?

A.

I started with Ruark OB/GYN in 1989, and then

got bought out by Rex in 1995.

joined Chris Heaton and Mary Susan Fulghum -- the three

of us in a private practice doing GYN only.

9
10
11
12
13
14

Q.

And then in 2001 left and

And in your private practice, how many

employees did you all have?


A.

At various times during those 26 years,

anywhere from probably 15 to 30.


Q.

And your last practice -- tell me again when

you began with the last practice you practiced in.

15

A.

That would have been 2001.

16

Q.

And when did you leave there?

17

A.

July, 2015.

18

Q.

And when you left there in July of 2015, how

19

many employees did you all have?

20

A.

About fourteen, I think.

21

Q.

Did you have an office manager or did the

22

doctors manage the office?

23

A.

An office manager.

24

Q.

Did you have a title, or were you just -- tell

25

me what your position was in the practice.

Case 1:14-cv-00753-LCB-JEP Document 81-6 Filed 08/02/16 Page 12 of 283

RANDALL W. WILLIAMS, M.D.


1
2
3
4

A.

5/18/16

PAGE 13

At one time I was president, one time I was

vice-president, one time I think I was secretary.


Q.

How many -- when you left, how many employees

were you supervising?

A.

About, again, fourteen, I think.

Q.

So each of the doctors supervised all

fourteen?

A.

Yes, sir.

Q.

Is that the way you considered it?

10

A.

Yes, sir.

11

Q.

Now, what is your current position?

12

A.

I am Deputy Secretary for Health Services for

13

North Carolina, and State Health Director.

14

Q.

And what are your duties?

15

A.

As State Health Director, I am charged with

16

policy making for the Division of Public Health.

17

am the spokesman for the department.

18

responsibilities, and I work with the Deputy Secretaries

19

and the Secretary.

20

I also

I have statutory

I oversee the Division of Public Health,

21

working with Danny Staley, who is the Director of Public

22

Health.

23

really, in 10 different sections.

24

and vertically, I have responsibilities.

25

Secretary, I work with the other Deputy Secretaries.

And we have approximately 1,700 employees,


So both horizontally
As Deputy
And

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RANDALL W. WILLIAMS, M.D.

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PAGE 14

to support the department we have about 1,700 employees

and a 20 billion dollar budget.

I also oversee in that role the Office of

Rural Health.

So in both of those roles, I have both

vertical -- meaning responsibilities to those above me --

those below me, and horizontally, to the other Deputy

Secretaries.

Q.

So there is more than one Deputy Secretary?

A.

Yes, sir.

10

Q.

How many are there?

11

A.

There are four.

12

Q.

There are four?

13

A.

I report to Rick -- Rick Brazier, the

14

And who do you report to?

Secretary of DHHS.

15

Q.

When did you assume that position?

16

A.

July 1st.

17

Q.

And what led you to come to DHHS?

18

A.

That is a great -- on days like today, I

19

wonder that.

No.

I had been in private practice, had

20

3,000 patients, very much enjoyed what I did, Frank.

21

I feel, for a variety or reasons, that this is probably

22

the most important time in North Carolina's health care

23

history.

24

started in 1877.

25

of Public Health for eight years, was on the local Wake

But

Going back, the Division of Public Health


I was on the North Carolina Commission

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RANDALL W. WILLIAMS, M.D.

5/18/16

PAGE 15

County Board of Health when I first moved to Raleigh.

And if you look at North Carolina's health

care history, starting in 1877, I am the fifteenth State

Health Director.

certainly in the '40s with the creation of the Good

Health Movement, the creation of North Carolina Memorial

Hospital, four year medical schools, dental school,

nursing school, public health school at Carolina.

you go to the '60's with Medicare and Medicaid ---

10

Q.

There have been some red letter dates,

Then

(Interposing) Don't let me -- excuse me for

11

interrupting you, but I am really asking you not for a

12

history of the agency, but why ---

13

A.

Right.

14

Q.

--- how did you learn of the opening; what led

15
16

you to apply for it?


A.

All right, I am sorry.

So, anyway, the idea

17

of why I left -- I misunderstood.

So that -- so, anyway,

18

I thought that the -- I was approached, to answer your

19

question, if I would interview for the job of State

20

Health Director.

21

Q.

And who approached you?

22

A.

Robin Cummings.

23

Q.

And who is Robin Cummings?

24

A.

He was the person who was in my role -- he was

25

Deputy Secretary before he left to go be the Chancellor

Case 1:14-cv-00753-LCB-JEP Document 81-6 Filed 08/02/16 Page 15 of 283

RANDALL W. WILLIAMS, M.D.


1

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PAGE 16

at Pembroke.

Q.

And how did you know him?

A.

I knew Robin -- I believe that he was on the

transition committee, I think, with Governor McCrory

after he was elected, I believe.

direct recollection of that, but I had met him just

through various interactions.

years, I would be called time-from-time to ask my

opinions on issues.

10
11
12

During the two and a half

And so I think I kind of knew him

through that.
Q.

Now were you on Governor's McCrory's

transition committee?

13

A.

Yes, sir.

14

Q.

On health care?

15

But -- I don't have a

On health care.
Did you support his election

for Governor?

16

A.

Yes, sir.

17

Q.

And how did you support it?

18

A.

I just went to a fund raiser, as I remember,

19

and I think I gave $250.

20

Q.

And did you give any more than that or do

21

anything else?

22

A.

No, sir.

23

Q.

Now, after your service on the transition

24

committee, did you have any other role in the McCrory

25

administration until Mr. Cummings called you -- is it Mr.

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RANDALL W. WILLIAMS, M.D.

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PAGE 17

or Mrs.?

A.

Doctor, it is Dr. Cummings.

Q.

Is it a man or a woman?

A.

It is a man, I am sorry.

Q.

Before Dr. Cummings called you, had you had

any other contact or involvement with the McCrory

administration?

A.

No, sir.

Q.

And I believe you said -- well, let me go to

No, sir.

10

this.

11

next to pursue the position?

12
13

So after Dr. Cummings called you, what did you do

A.

I interviewed with Secretary Wos and Mark

Gogal and Mark Payne, I believe -- members of DHHS.

14

Q.

And Secretary?

15

A.

Wos.

16

Q.

Would you spell that for the court reporter,

17

please?

18

A.

Yes, W-O-S.

19

Q.

And at that time, she was the preceding

20

Secretary to the current one?

21

A.

Yes, sir.

22

Q.

And about when did you interview with her?

23

A.

It would have been about April of last year.

24

Q.

And who else did you talk with before you

25

assumed the position?

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RANDALL W. WILLIAMS, M.D.


1

A.

5/18/16

PAGE 18

Well, I think, you know, I had -- I think Mark

Gogal, who was head of personnel; Mark Payne who was her

Chief of Staff; Sherry Bradsher, who was Secretary --

Deputy Secretary for Social Services; Dave Richard was

Secretary -- Deputy Secretary for Medicaid, or became

that.

don't remember.

Health.

And I may have met with Dale Armstrong, but I

Q.

He is now Deputy Secretary for Mental

Did you speak with Governor McCrory before you

10

were appointed?

11

A.

No.

12

Q.

Did you speak with anyone on his staff before

13

you were appointed?

14

A.

No, sir.

I don't believe so.

15

Q.

When you were interviewing for the position,

16

did the issue of the "do not drink" letters at the coal

17

ash sites around North Carolina -- did it come up?

18

A.

No, sir.

19

Q.

The position you hold, is it a civil service

20

position or is it a political appointment?

21

A.

It is policy exempt.

22

Q.

So that means it is a -- you serve at the

23
24
25

pleasure of the Secretary, I suppose; is that right?


A.

Well, I -- what I tell people is I work for

the people of North Carolina, because they pay my

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RANDALL W. WILLIAMS, M.D.


1

paycheck.

2
3

Q.

5/18/16

PAGE 19

I mean that is what I --(Interposing) But that is not who you directly

report to.

A.

Right.

Q.

My question is, in terms of the government

employment structure, I assume what that means is that

you serve at the pleasure of the Secretary?

A.

Yes, sir.

Q.

When did you first hear of the issue of the

10

"do not drink" letters around the coal ash sites?

11

A.

Frank, I think it was around right -- it was

12

either late June or early July, as part of my briefing

13

for taking over the role as Deputy Secretary.

14

Secretary Wos, and we had about an hour meeting, just

15

about the responsibility -- we had already interviewed,

16

but she kind of went into everything.

17

I met with

And I very distinctly remember at the end of

18

that meeting she said, "Do you understand, Randall, what

19

your role is in this Department?"

20

ma'am.

21

word.

22

that, she said "You lead."

23

I think."

And I said, "Yes,

She said "Well, I can sum it up in one

And that is lead."

And I will never forget

So after I started the job, there were several

24

things that, in addition to my responsibilities for

25

overseeing the Division of Public Health and Rural

Case 1:14-cv-00753-LCB-JEP Document 81-6 Filed 08/02/16 Page 19 of 283

RANDALL W. WILLIAMS, M.D.

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PAGE 20

Health, that she used the word "portfolio" -- that "these

are in your portfolio."

And so that is the first time I heard about well water.

To your specific question, the "do not drink," I don't

know.

well water.

And one of those was well water.

But that is the first time I really was briefed on

Q.

So let me ask again: when you were briefed

about well water, did you learn about the "do not drink"

letters?

10

A.

I don't believe so, or I just don't remember.

11

Q.

When did you first hear about them or learn

12

about them?

13

A.

I don't remember.

14

Q.

Did you know they had been issued before you

15
16

became the Deputy Secretary?


A.

No, sir.

17

MR. ROSSER:

Object to the form.

18

THE WITNESS:

No, sir.

19

BY MR. HOLLEMAN:

20

Q.

Well, let me state it differently to you.

21

you heard about the "do not drink" letters before you

22

became the Deputy Secretary?

Had

23

A.

I don't believe so.

24

Q.

So if you don't remember when, do you remember

25

the context in which you first heard of them?

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RANDALL W. WILLIAMS, M.D.


1

A.

5/18/16

PAGE 21

Well, I think the best way I can approach that

is, is it was a very busy time in July when I first

started.

The first time I remember being briefed -- and I remember

this very vividly -- by Megan and Mina was about the

second week of August on well water by them.

remember that very distinctly.

8
9

Q.

The legislature was in session with Medicaid.

And I

And when we say "Mina," we are referring to

Dr. Shehee?

10

A.

Yes, sir.

11

Q.

And when we say "Megan," we are referring to

12

Dr. Davies, is that correct?

13

A.

Yes, sir.

14

Q.

And what did they tell you in that briefing in

15
16

August?
A.

I remember very distinctly they were trying to

17

go into all the processes of how the levels for

18

hexavalent chromium and vanadium had been established.

19

And the reason that was, was they were getting ready to

20

appear before someone in the legislature.

21

to me to kind of walk through their presentation, which I

22

didn't go to.

23

through how that presentation would go.

24
25

So they came

And they were more or less walking me

And I can't remember, but I made a suggestion


and they adopted it, and I can remember Megan coming back

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RANDALL W. WILLIAMS, M.D.

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PAGE 22

and saying "that really helped."

But I don't remember

what I did.

when Secretary Brazier came, which was right around the

second week of August, one of his very first briefings

was by Megan and Mina, probably a week later, on well

water.

And the reason that is important is, is that

I remember that distinctly.

Q.

Do you remember what suggestion you made ---

A.

(Interposing) I do not.

Q.

--- regarding the presentation?

10

A.

I do not.

11

Q.

Well, after your briefing with Dr. -- I am

12

sorry -- Secretary Brazier, what was your next

13

involvement with the "do not drink" letters?

14

A.

Yes.

Again, I remember that briefing because,

15

again, you have to understand that just a week before I

16

had been briefed.

17

the first time.

18

complimentary to Megan about the presentation, that it

19

was, I thought, a very complex and difficult subject to

20

understand, and that she had done a good job of trying to

21

explain it.

And then Rick was being briefed for


And I just remember he was very

22

The real -- next things that go through my

23

mind are some follow-up meetings with Megan and Mina.

24

And Danny Staley was at that meeting too, I am sorry, for

25

the briefing with Rick.

I don't think he was at the -- I

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RANDALL W. WILLIAMS, M.D.

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PAGE 23

am pretty sure he was not at the meeting with Mina and

Megan alone.

that, again, it was felt to be just a very contentious

issue.

discuss that contention and the complexity of it.

6
7
8
9
10

And those meetings were around the fact

And so we would have a series of meetings to

Q.

When you say "we," who is "we would have a

series of meetings?
A.

Again, to my recollection, it would have been

Danny and me, and Megan and Mina.

And Rick was involved

in one or two of those meetings.

11

Q.

And when you say "Rick," is that Secretary

12

Brazier?

13

A.

Yes, sir.

14

Q.

And when you say "It was a contentious issue,"

15

what -- well, let me back up.

16

I asked you who Rick was, but were you going to add

17

anyone else who attended those meetings?

18

A.

No.

Was anyone else involved?

You know, in the vast majority of my

19

meetings, Danny will be there.

Danny is Director of the

20

Division, so usually, if I am at a meeting with anybody

21

in his division, he will usually be there.

22

-- the more we delved into it, certainly within the

23

legislature, there were requests to come over and talk

24

with them.

25

and others around the issue of well water, so we would go

But there was

And those request were for Megan and for me

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RANDALL W. WILLIAMS, M.D.


1

and talk with them.

the media.

5/18/16

PAGE 24

There were, I think, articles in

Very shortly, I would be talking to private

citizens who had concerns.

responding to that as we listened to people.

Q.

So, as a rule, we would be

And I guess you remember in March of 2016,

this so called "do drink" letter was issued.

remember that?

A.

Oh, yes, yes.

Q.

Before the "do drink" letter was issued, which

10

I am sorry.

Do you

I was -- I am

sorry.

11
12

members of the legislature did you meet with about the

13

"do not drink" letters?

14

A.

Yes.

The majority of those meetings were with

15

Jeff Warren, who was on the -- and when I say majority.

16

I don't remember how many there were, there may have only

17

been one or two or three -- who is on the Senate Pro Temp

18

Staff, and Mitch Gillespie, who is with the Speaker's

19

staff.

20

one time.

21

one time who -- well water was in his district.

22

I remember we met with Representative Bumgardner


We met with a representative from Charlotte

And at all of those meetings, I was

23

accompanied by Adam Sholar.

Megan was at one of those

24

meetings with Mitch Gillespie, as I remember, I think --

25

I think.

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PAGE 25

Q.

Who is Adam Sholar?

A.

He was our legislative assistant at the time;

he is no longer there.

Q.

And what did Mr. Warren tell you?

A.

I think, if I could summarize Mr. Warren's and

Mr. Gillespie's comments together, they really were on

two tracks.

"do not drink" letter.

then.

One was that people were very alarmed by the


So I certainly was aware of them

And that there was a concern that we had alarmed

10

people disproportionate to the risk.

11

concern.

12

And there was that

And I think there was the other concern that

13

there was an inconsistency of views or attitudes from DEQ

14

and DHHS.

15
16
17
18
19

Q.

I think that is fair.


And did Mr. Warren and Mr. Gillespie express

any other concerns?


A.

No, those are the two -- if I could summarize

them, that is how I would phrase it.


Q.

I understand that is your summary.

I am just

20

asking were there any other concerns in substance

21

different from that or separate from that summary?

22

A.

I don't believe so, sir.

23

Q.

What about Representative Bumgardner; what

24
25

were his concerns?


A.

He was more demonstrative.

I think -- I think

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PAGE 26

I remember the term, you know, "These people think they

are being poisoned," something to that effect.

3
4

Q.

Do you remember any other concerns he

expressed?

A.

It was a short meeting.

Q.

When you met with Mr. Warren and Mr.

Gillespie, what was your response to them and their

concern?

A.

Yes, sir.

I went back to the department.

And

10

the sense was -- and met with Rick and Megan and Mina and

11

Danny.

12

well owners.

13

October 15th that we wrote from DEQ and DHHS.

14

And the sense was that we needed to update the

Q.

And so that culminated in a letter of

I guess my question is, though, what did you

15

say back to Mr. Warren and Mr. Gillespie in those

16

meetings there after?

17

A.

I think the general tenner of those remarks

18

was was that under CAMA, that we had used -- we had been

19

instructed to use the MCLs, and that hexavalent chromium

20

did not have an MCL.

21

then if we didn't have that, we were going to use an

22

IMAC, for which vanadium did have an IMAC but hexavalent

23

chromium didn't.

24

Slope curve, and that that is why we had generated the

25

levels we had and issued the Health Risk Evaluations and

Vanadium didn't have an MCL.

And

So then we fell back to the Cancer

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PAGE 27

the "do not drink" letters.

Q.

So let me get to this meeting or meetings

again.

Did you indicate to Mr. Warner or Mr. Gillespie

that you all would take any action, or did you just

explain what the Department had done?

MS. LeVEAUX:

Objection.

THE WITNESS:

Just explained.

Just

explained.

BY MR. HOLLEMAN:

10

Q.

And what about to Representative Bumgardner?

11

A.

Just explained.

12

Q.

I believe you said you met a representative

13

from Charlotte?

14

A.

I did.

15

Q.

And what was that content of that meeting?

16

A.

That was more education.

17

brought up to speed on the issue.

18

concerns.

19
20
21

Q.

He just wanted to be
I don't think he had

He just wanted to learn about the issue.


Did Mr. Warren or Mr. Gillespie ask you to

take any specific or general action?


A.

Other than they thought we needed to let the

22

-- we needed to get information out to the well owners.

23

We needed to let them know that we were still engaged in

24

this process.

25

Q.

Did they suggest what the content or substance

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2

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of those communications should be?


A.

I mean, I think there was a tenor that they

thought that we weren't -- that the letters -- that our

communication to them hadn't been clear, that we needed

to be more clear about how we had established what we did

and the evidence to support it.

7
8
9

Q.

And did you agree that the Department had not

been clear with the well owners?


A.

Well, it seemed to me that to their point that

10

there was a lot of confusion in this area, I would have

11

agreed with that, yes.

12

Q.

And what was the confusion?

13

A.

Yeah, it is a good question which kind of gets

14

to the heart, which is, is that as we set those -- issued

15

the HREs and the "do not drinks," as you well know, we

16

did that using established practice.

17

much in an emerging science, that as we looked around the

18

country and looked federally, we didn't have a lot of

19

guidance.

20

unusual for us, we kind of followed our standard

21

practices.

22

But it was very

And because, in public health, that is not

But as we did that and you looked at what was

23

going on both federally and nationally, there was an

24

incredibly healthy debate about many of these issues.

25

For instance: one, vanadium wasn't regulated by the

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PAGE 29

Federal Government and isn't basically regulated by other

states; that we had set a level of 0.3 micrograms per

liter, and that as we pointed out in the original letter

the daily consumption is anywhere from 10 to 20

micrograms per liter.

know, level in water is probably 1.

confusion about that.

8
9

And probably the average, you


So there was

For hexavalent chromium, there was a very


healthy debate among DEQ and DHHS about total chromium

10

versus hexavalent chromium, and that there were three

11

numbers really -- maybe four -- in the public domain.

12

One was our .07 that was calculated off a Cancer Slope

13

curve.

14

web site, was said to be -- you could consider all of

15

hexavalent chromium to be total chromium.

16

California they had a Health Protective Level of .02, but

17

they had an MCL, basically, of 10.

18

that different information, there was a lot of -- of

19

communication among a lot of people about the

20

appropriateness of our levels and issuing the "do not

21

drinks."

22

Q.

23

One was 100 for total chromium which, on the EPA

And then in

So because of all

Now, in 2015, DEQ and HHS established a Health

Screening Level for hexavalent chromium; is that correct?

24

A.

Yes, sir.

25

Q.

And that number was ---

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PAGE 30

A.

.07.

Q.

.07?

A.

Micrograms per liter.

Q.

Does that remain the Health Screening Level

5
6
7
8
9

for hexavalent chromium for HHS?


A.

Yes, sir, it does, as does vanadium's 0.3

micrograms per liter, as we speak.


Q.

Now, do you have any doubt about the accuracy

of the calculations that led to the 0.07?

10

A.

No, sir.

11

Q.

And are you aware that -- or do you know who

12

did the initial calculations of the .07 Health Screening

13

Level in North Carolina Government?

14

A.

To my knowledge, it was between DHHS and DEQ,

15

as was the IMAC set for vanadium.

16

people within our department, it always seems that DEQ

17

was the driver for the IMAC for vanadium of 0.3.

18

Q.

Although when I ask

Do you know who in state government did the

19

initial calculations for the 0.07 Health Screening Level

20

for hexavalent chromium?

21

A.

I think Ken Rudo was involved, but I can't

22

tell you if he was the exact person or there were some

23

people in DEQ that he worked with.

24
25

Q.

Do you know whether DEQ did the initial

calculations, or whether DHHS did the initial

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PAGE 31

calculations for the hexavalent chromium Health Screening

Level?

3
4
5
6

A.

My sense was it was collaborative, but I do

not know the exact person.


Q.

Do you know whether the Federal Centers for

Disease Control reviewed the calculations?

A.

They did.

Q.

And what was their response?

A.

That it had been done accurately.

10

Q.

Now, before the "do drink" letter was issued,

11

did you meet with anyone else in state government about

12

the issue, other than these legislators and the people in

13

your department?

14

A.

Well, in state government?

15

Q.

Yes.

16

A.

That involves the legislature?

17

Q.

Yes.

18

A.

All right.

19

Q.

Let's start first with the legislature.

20

A.

Okay.

21

Q.

Before the "do drink" letter was issued in

Well ---

22

2016, did you meet with anyone else in the legislature

23

about this issue?

24

A.

Yes.

25

Q.

Sure.

Yes, I can walk you through that.

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1

A.

5/18/16

PAGE 32

It will be a little bit of a soliloquy, but I

know you want to get the truth, and I think that is

probably the best way to do it.

talked about resulted in the letter or October 15th.

do you have that letter?

Q.

it and exhibit.

A.

9
10

So the meetings that we

It would be good if you have it.

And

Let's make

Can we make it an exhibit, because in the

other two depositions, I haven't seen anybody talk about


that.

11

MR. BARKLEY:

We have got copies of that.

12

MR. HOLLEMAN:

Sure.

13

(PLAINTIFF-INTERVENORS EXHIBIT 297

14

WAS MARKED FOR IDENTIFICATION.)

15

BY MR. HOLLEMAN:

16

Q.

Go ahead.

17

A.

So this was a ---

18

Q.

(Interposing) Well, just for the record, what

19

is Exhibit 297?

20

A.

Frank, this is a letter from -- signed by

21

Randall Williams, which is me, and Tom Reeder, DEQ

22

Assistant Secretary for the Environment, to Well Owners,

23

of October 15th, 2015.

24
25

Q.

And proceed ahead with what you were going to

say, please.

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1

A.

5/18/16

Thank you.

PAGE 33

So this was a letter to address

the concerns that there was a lot of confusion around the

levels we had set, and why we had issued the "do not

drinks."

variety of people, whether it be the media or legislators

or private citizens.

that was the purpose.

And that, again, was from listening to a large

8
9

We were getting e-mails.

And so

Now, this letter was written by both


departments.

And it involved a lot of different people.

10

It involved people within DPH, people within DEQ, people

11

in communications, I suspect.

12

at it.

13

Vaart looked at it.

14

at it.

Our legal counsel looked

The Secretary looked at it.

15

Secretary van der

And our communications people looked

And so that letter was not changing any

16

policy.

17

had.

That was just to communicate the policy that we

So that was that.

18

I am sorry.

So that was that.

And then that was in

19

October.

And in that letter, if you will see -- if you

20

will read the third paragraph, I think it is, or fourth

21

paragraph, DEQ indicates that -- may I read it?

22

that be ---

23

Q.

If you wish.

24

A.

Okay.

25

Thank you very much.

Would

It says, "Since

sending the previous letter, North Carolina DEQ conducted

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PAGE 34

sampling and testing of private wells some distance from

coal ash impoundments in an effort to establish natural

background conditions.

levels of vanadium and hexavalent chromium in your well

water are generally in the range of the levels of those

same constituents in some wells and some municipal

drinking water supplies in other parts of the state."

8
9

Q.

These samples indicate that the

Well, let me ask you about that statement.

Is

that a true statement?

10

A.

That -- we relied on that statement from DEQ.

11

Q.

Well, to your knowledge, is that a true

12

statement?

13

knowledge you have today, is that a true statement?

14

A.

Today -- sitting here today, based on the

Yes.

Well, let me -- well, I have to qualify

15

that, because I don't have -- no, let me qualify that,

16

because they conducted that sampling and testing.

17

have not seen that data.

18

Q.

Well, what about -- if I could see it?

19

A.

Yes, sir.

20
21
22

And I

(Document handed to counsel.)


Q.

Just to ask you, what about the statement --

this is addressed to "Dear Well Owner," correct?

23

A.

Yes, sir.

24

Q.

So I guess it went to every person who had

25

Uh-huh.

received the "do not drink" letter?

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PAGE 35

A.

Yes, sir.

That is correct.

Q.

And do you all have a list of those people?

A.

Yes, sir.

Q.

And this letter not only tells them that their

We do.

wells have been tested, but that "the levels of

hexavalent chromium in your well water are generally in

the range of the levels of these same constituents in

some municipal drinking water supplies in other parts of

the state."

Is that a true statement to your knowledge?

10

MR. ROSSER:

Object to the form.

11

MS. LeVEAUX:

Objection.

12

MR. ROBBINS:

Objection.

13

THE WITNESS:

Yes, sir.

14

BY MR. HOLLEMAN:

15

Q.

That is true.

Now are you aware that some people who

16

received this letter had hexavalent chromium as high as

17

20 or more in their wells?

18

MR. ROSSER:

Object to the form.

19

MS. LeVEAUX:

Objection.

20

THE WITNESS:

Yes, sir.

21

BY MR. HOLLEMAN:

22

Q.

Are you aware of any municipal water supply in

23

the state of North Carolina that has a level of 20 or

24

more in its drinking water supplies?

25

MS. LeVEAUX:

Objection.

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RANDALL W. WILLIAMS, M.D.

5/18/16

THE WITNESS:

BY MR. HOLLEMAN:

Q.

No, sir.

So would that statement be a true statement to

well owner who has 20 or more ---

MS. LeVEAUX:

BY MR. HOLLEMAN:

Q.

PAGE 36

Objection.

--- hexavalent chromium in their well?

MS. LeVEAUX:

Objection.

MR. ROBINS:

Objection.

10

MR. BARKLEY:

Objection.

11

THE WITNESS:

Well, again, the sentence

12

says, "These samples indicate that the levels of vanadium

13

and hexavalent chromium in your well water are generally

14

in the range of the levels of these same constituents in

15

some wells and some municipal drinking water supplies in

16

other parts of the state."

17

statement.

18

the sampling and testing of private wells.

19

seen that data.

20
21

So I agree with that

It is the previous sentence that DEQ had done


I have not

BY MR. HOLLEMAN:
Q.

All right.

But I am asking you about the

22

statement.

Are you saying the word "generally" justifies

23

telling a well owner with over 20 parts per billion

24

hexavalent chromium in their wells that the levels of

25

hexavalent chromium in your well is in the range of the

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RANDALL W. WILLIAMS, M.D.

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PAGE 37

levels of these same constituents in some municipal

drinking water supplies?

A.

Yeah.

MS. LeVEAUX:

Objection.

MR. ROSSER:

Objection to form.

MR. ROBBINS:

Objection.

MR. BARKLEY:

Objection.

THE WITNESS:

Frank, again, for that, we did

240 wells for hexavalent chromium.

234 were under 10.

10

Seven -- or 233.

Seven were over 10.

So three of those

11

seven were in the 10 range.

12

with the exception of the one well owner.

13

taken steps to handle that.

14

BY MR. HOLLEMAN:

So that statement is true


And we have

15

Q.

Which one well owner?

16

A.

The one with the 22 -- or 21.

17

Q.

You think there was only one?

18

A.

Well, there was that one there that I know of.

19
20
21
22

I don't know of a wide range of people in the 20's.


Q.

Do you know if there was more than one that

had --A.

(Interposing) I - I -- yes, I think there was

23

more than one, but I don't think it was in the wide range

24

of the 234 that were under 10.

25

Q.

Well, what about the others who were above 20?

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PAGE 38

Was it a true statement for them?

MR. ROSSER:

Object to the form.

THE WITNESS:

Again, it was a true statement

in the general range.

over 10 now to reflect that concern.

6
7
8

But we have addressed those people

BY MR. HOLLEMAN:
Q.

Do you know a municipal drinking water supply

in the state that has a level of over 10?

A.

No, sir.

10

Q.

Do you know a municipal drinking water supply

11

in the state that has a hexavalent chromium level over 5

12

parts per billion?

13

A.

No, sir.

14

Q.

Do you know one that has a level of over 1

15

part per billion of hexavalent chromium?

16

A.

I believe there are some, yes.

17

Q.

How many?

18

A.

I do not know.

19
20

I am thinking approximately

maybe 50.
Q.

Now when you sent this letter out, had you

21

surveyed the other municipal drinking water supplies in

22

other parts of the state?

23

A.

We relied on DEQ to do that.

24

Q.

So the answer is no, is that correct?

25

not done that?

You had

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RANDALL W. WILLIAMS, M.D.

5/18/16

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

MR. BARKLEY:

Objection.

THE WITNESS:

Me, personally?

BY MR. HOLLEMAN:

PAGE 39

Q.

Yes, you?

A.

No, we relied on -- the letter came from both

8
9
10

DEQ and DHHS.


Q.

Right, but you did sign it as the Deputy

Secretary for Health Services, correct?

11

A.

Yes, sir.

That is correct.

12

Q.

And you, yourself, had not determined whether

13

this sentence was true?

And that is "These samples

14

indicate that the levels of vanadium and hexavalent

15

chromium in your well water are generally in the range of

16

the levels of the same constituents in some wells and

17

some municipal drinking water supplies in other parts of

18

the state."

19

MS. LeVEAUX:

Objection.

20

MR. ROBBINS:

Objection.

21

THE WITNESS:

Well, again, we relied on DEQ

22

to provide that data.

23

me, so that is not -- for municipal water, that is not

24

our purview, so we had him provide that information.

25

The letter came from both Tom and

BY MR. HOLLEMAN:

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RANDALL W. WILLIAMS, M.D.


1
2

Q.

5/18/16

PAGE 40

Did he provide information to you?

A list of

municipal water supplies?

A.

I can't recall.

Q.

But you don't remember having actually looked

at the levels of hexavalent chromium in drinking water

supplies in other parts of the state, is that correct?

MR. ROSSER:

Object to the form.

MS. LeVEAUX:

Objection.

THE WITNESS:

I had looked at other -- I had

10

looked at Raleigh.

11

But I had again, relied on Tom with DEQ for that part of

12

the letter.

13
14
15
16

I had looked at Charlotte, I believe.

BY MR. HOLLEMAN:
Q.

When you looked at Raleigh's hexavalent

chromium level, what was it?


A.

Seventy-five percent of the time it was below

17

our screening level.

18

our screening level.

19
20

Q.

25 percent of the time it was above

When it was above your screening level, how

high did it ever go?

21

A.

I think probably 0.1.

22

Q.

So what about Charlotte?

23
24
25

When you looked at

it, what did it indicate?


A.

Charlotte's level was higher for hexavalent

chromium more often, and it was right at 0.1, too.

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1

Q.

5/18/16

PAGE 41

But was it -- was Charlotte's -- your

recollection is Charlotte's was above your screening

level?

A.

At times, yes, sir.

Q.

By how much?

A.

Provided by staff, I just remember that

Charlotte was right at 0.1 part of the time.

was provided to me by my staff.

Q.

And that

Can we mark this as an exhibit, please.

10

MS. BLAKE:

What exhibit number?

11

THE REPORTER:

12

MS. LeVEAUX:

298.
298?

13

(PLAINTIFF-INTERVENORS EXHIBIT 298

14

WAS MARKED FOR IDENTIFICATION.)

15
16

BY MR. HOLLEMAN:
Q.

Let me show you Exhibit 298, which is the 2013

17

annual drinking water quality report for the

18

Charlotte/Mecklenburg Utility Department.

19

could look at page 8, which is the last page.

20

look at the bottom it says "Chromium-6 distribution."

21

Do you see what the reported level was?

And if you
And if you

22

A.

Yes, sir.

23

Q.

And what is it?

24

A.

.073.

25

Q.

So that is right at your Health Screening

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PAGE 42

Level for Charlotte, is that correct?

MR. ROSSER:

Object to the form.

THE WITNESS:

I have seen a level provided

to me by staff that was higher than that.

BY MR. HOLLEMAN:

Q.

Did you see this 2013 report?

A.

No, sir.

8
9

year.

Well, maybe they gave me another

I am not sure.
Q.

Let's go back for a minute.

I believe you

10

said you are not aware of any drinking water system in

11

any municipality in North Carolina that has hexavalent

12

chromium above 5 parts per billion, is that correct?

13

A.

I am not aware.

14

Q.

How many of these well owners had hexavalent

15
16

No, sir.

chromium of 5 parts per billion or higher?


A.

I don't know the exact number.

I have seen

17

that number, but my cutoff was more looking at what was

18

under 10.

19

Q.

All right.

What about five?

20

A.

I don't know.

21

Q.

Well, in light of the answers you have given

22

me, do you still -- I am going to ask you again: the

23

sentence that says "These samples indicate that the

24

levels of vanadium and hexavalent chromium in your well

25

are generally in the range of the levels of these same

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PAGE 43

constituents in some wells and some municipal drinking

water supplies in other parts of the state."

still believe that is a true statement?

Do you

MR. ROSSER:

Object to the form.

MR. BARKLEY:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

Yes, sir.

BY MR. HOLLEMAN:

9
10

Q.

As it is addressed in every letter to ever

well owner who received this letter?

11

A.

No, sir.

12

Q.

And so to how many well owners was that a

13

false statement?

14

MR. ROSSER:

Objection to the form.

15

MS. LeVEAUX:

Objection.

16

MR. ROBBINS:

Objection.

17

MR. BARKLEY:

Objection.

18

THE WITNESS:

Again, I think that in --

19

seven well owners that were over -- at least seven that

20

were over 10, we had taken steps, as this has evolved, to

21

address that issue.

22

BY MR. HOLLEMAN:

23

Q.

And when ---

24

A.

And I will get to that.

25

Q.

What about for the well owners who were 5 or

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PAGE 44

more, was that a true statement?

A.

I believe so.

Yes, sir.

Q.

And what do you base that belief on?

A.

Again, based on DEQ's report.

that out to us.

Q.

Their reporting

As you sit here today, have you looked at the

levels of hexavalent chromium in the municipal drinking

water supplies in cities and towns in North Carolina?

9
10
11

A.

Again, I believe I have seen that, but for

that part of the letter we relied on DEQ.


Q.

Right.

But I am saying, today -- as we sit

12

here today, have you as of today reviewed the hexavalent

13

chromium levels in the municipal drinking water supplies

14

in communities across North Carolina?

15

A.

DEQ has, and I rely on their information.

16

Q.

But does that mean you, yourself, have not

17

done that?

18

MR. ROBBINS:

Objection.

19

MR. BARKLEY:

Objection.

20

THE WITNESS:

I have seen some of the

21

levels, but I have not done it extensively as DEQ has.

22
23

BY MR. HOLLEMAN:
Q.

Well have you determined whether most of the

24

drinking water supplies in municipalities across North

25

Carolina have hexavalent chromium levels above 5 parts

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per billion?

MR. ROBBINS:

Objection.

THE WITNESS:

No, sir.

BY MR. HOLLEMAN:

5
6

Q.

Have you determined if most of them have

levels above 1 part per billion?

A.

Above 1?

Q.

Yes.

A.

Not me, individually, no.

10
11

PAGE 45

But, again, I would

emphasize that it was a combined letter.


Q.

Well, I understand you say that, Dr. Williams.

12

But do you believe as the Deputy Secretary for Health

13

Services for the State of North Carolina, you had a

14

responsibility to make sure the letter was true before

15

you sent it out?

16

MR. ROSSER:

Objection.

17

MS. LeVEAUX:

Objection.

18

MR. ROBBINS:

Objection.

19

MR. BARKLEY:

Objection.

20

THE WITNESS:

I relied on those people who

21

reported to me.

22

purview, not DHHS's.

23
24
25

And in that case, that is under DEQ's

BY MR. HOLLEMAN:
Q.

Now, you said you relied on people who

reported to you?

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2

A.

Well, reported out to me.

PAGE 46
They didn't -- they

weren't directly reporting to me.

3
4

5/18/16

Q.

Did anyone who reported to you object to this

statement in the October 2015 letter?

A.

I don't remember.

Q.

NOW, I believe you said you did know when you

sent this letter out that you believe Charlotte's level

of hexavalent chromium was .1?

A.

Yes, sir.

10

Q.

And you knew Raleigh's was, 75 percent of the

11

time, under your health screening level; is that right?

12

A.

Right, right.

13

Q.

Well, if you knew that, did that raise a doubt

14

in your mind as to whether this statement was true, that

15

the levels of hexavalent chromium in these wells are

16

generally in the range of the same constituents in

17

municipal drinking water supplies in other parts of the

18

state?

19

MR. ROSSER:

Objection.

20

MS. LeVEAUX:

Objection.

21

MR. ROBBINS:

Objection.

22

THE WITNESS:

Again, I relied on DEQ.

23

that is within their purview, I relied on them.

24
25

Since

BY MR. HOLLEMAN:
Q.

Now before you sent out the October 15, 2015,

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letter, did you talk to anyone at Duke Energy?

A.

No, sir.

Q.

Did you meet with anyone at Duke Energy?

A.

No, sir.

Q.

Before the "do drink" letter was sent out in

6
7

2016, did you talk to anyone at Duke Energy?


A.

No, sir.

At -- I will just qualify that.

The

only conversation I have ever had personally with Duke

Energy was Bob Kaylor who I know, because our children

10

were friends, back in July when I was walking in the

11

legislature one day and he said "Hello."

12

"you know I am with Duke Energy?"

13

conversation I have ever had with Duke Energy.

And he said

That is the only

14

Q.

And that includes meetings or phone calls?

15

A.

Correct.

16

Q.

Did the Secretary meet with Duke Energy before

17

you sent out the "do drink" letters?

18

A.

I believe so.

19

Q.

And which Secretary?

20

A.

Secretary Brazier.

21

Q.

And when did he meet with them?

22

A.

I don't know.

23

the Fall.

24

after the letter.

25

Q.

He met with them sometime in

I don't know if it was before the letter or

And when you say "the letter," you mean

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PAGE 48

Exhibit 297, the October 2015 letter?

A.

Yes, sir.

And the reason I know that is, is

that he came back and we had a meeting with Mina and

Megan and me and Danny, I think.

information from Duke that was a list of states and their

Groundwater Standards, I believe.

And he had some

And he said, "Well, I had a meeting with Duke"

-- which, again, was one of hundreds of meetings he had

as he became Secretary, which is -- part of our parcel is

10

that we very much try to engage people and listen to

11

them.

12

was my sense that is what the meeting was about.

13

said, "Well, they provided this information."

And so I don't know the exact -- you know, that


And he

14

So when I looked at it, it looked like to me

15

it was really not standards similar to the ones we set.

16

So I had Mina and, I think, Megan -- but certainly Mina

17

-- review it.

18

applicable to what we had done.

19

Q.

And that was correct.

It was not

So why was Secretary Brazier meeting with Duke

20

Energy about the levels of hexavalent chromium in other

21

peoples wells?

22

MS. LeVEAUX:

Objection.

23

MR. ROBINS:

Objection.

24

MR. ROSSER:

Objection to form, move to

25

strike.

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THE WITNESS:

PAGE 49

And again, you know, I just --

you know, part of our culture is to be accountable, is to

be collaborative and to serve the people.

every day.

that we meet with people.

private citizens who own wells.

Duke Energy wonder Why are you meeting with them?

would just tell you that part of our culture is, is we

want to listen.

10

And so it bothers me when it seems nefarious


You know, I have met with
I am sure people from
I

So I will meet with anyone in this room

at any time and listen to your concerns.

11
12

We say that

BY MR. HOLLEMAN:
Q.

Why do you think Duke Energy would consider it

13

unusual for a Deputy Secretary of Health to meet with

14

someone who is drinking well water that has been tested

15

by the government to have hexavalent chromium in it?

16

would that -- why would you say that was unusual?

Why

17

MR. ROBBINS:

Objection.

18

MR. BARKLEY:

Objection.

19

MR. ROSSER:

Again, objection to form, move

20

to strike -- "unusual."

21

MS. LeVEAUX:

Objection.

22

THE WITNESS:

Again, I -- in a very

23

contentious environment, it seems to me that whenever we

24

meet with certain groups, that people cast aspersions on

25

our motives.

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PAGE 50

BY MR. HOLLEMAN:

2
3

5/18/16

Q.

Who are the certain groups you are referring

A.

Well, it seems to me in the media, if we have

to?

a meeting with Duke, that that cast aspersions on our

motives.

Q.

What is your understanding of Duke's interest

in how much hexavalent chromium is in someone's drinking

water well ---

10

MR. ROSSER:

11

BY MR. HOLLEMAN:

Object to the form.

12

Q.

--- and what the Health Screening Level is?

13

A.

Right.

My sense is, from reading articles in

14

the press -- one written by Bruce Henderson in the

15

Charlotte Observer in January -- was that his statement

16

was relying on that, was that it is Duke Energy's

17

contention that this is background.

18

Q.

But for the people who are drinking hexavalent

19

chromium, the issue is a health risk.

Why would Duke

20

have any interest in what the Health Screening Level is?

21

MR. ROSSER:

Objection.

22

MS. LeVEAUX:

Objection.

23

MR. ROBINS:

Objection.

24

THE WITNESS:

Well, again, I think from the

25

standpoint of -- that if we have issued "do not drinks"

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PAGE 51

for something that is background, that is certainly

something we would factor into our analysis.

BY MR. HOLLEMAN:

Q.

What difference does it make in your job, as

being responsible for the public health, and in terms of

these people's health, whether it is background or not?

A.

Because when we were first asked to look at

this, and we -- we volunteered to do this, to look at the

Health Risk Evaluations and the Health Screening Levels

10

and the "do not drinks."

11

was a point source of contamination.

12

know, don't check for hexavalent chromium or vanadium in

13

our 6,000 new wells we check every year.

14

2.5 million people who drink out of 900,000 wells, we

15

don't check for hexavalent chromium and vanadium.

16

It is because we thought this


We normally, as you

And the other

This was a very specific request that we had,

17

so that we had a situation where we were clearly in a

18

unique situation that we didn't do for the other 2.5

19

million people in North Carolina.

20

that?

21

for everybody?

22

that it was a point source of contamination.

23

shown to be background, then that would lead to our

24

thinking that it isn't a point source of contamination.

25

And why did we do

If we were going to do that, why didn't we do it

Q.

Because at the time, there was a question


If it had

But that doesn't -- whether it is a point

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PAGE 52

source or not doesn't affect these people's health.

is the amount of hexavalent chromium they drink, is that

correct?

A.

Well, let's talk about that ----

Q.

Is that true?

MS. LeVEAUX:

Objection.

MR. ROSSER:

Objection.

MR. ROBBINS:

Objection.

BY MR. HOLLEMAN:

10

Q.

Just answer my question.

11

A.

Right.

It

The source -- the source of the

12

hexavalent chromium or vanadium would be immaterial to

13

the ---

14

Q.

Okay.

So let me ask you this: what is the

15

Health Screening Risk, according to HHS, for .07?

16

one in a million lifetime risk if contracting cancer?

17
18

A.

Yes, sir.

That is what we calculated.

But

let's talk about that.

19

MS. LeVEAUX:

Objection.

20

MR. ROSSER:

Objection.

21

MR. ROBBINS:

Objection.

22

Is it

Please let him

answer the question.

23

MR. HOLLEMAN:

If this continues, then,

24

Brent, I just want to tell you, I said "let's see how it

25

goes."

It may not -- you may not have a chance to ask

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PAGE 53

any questions.

MR. ROSSER:

Well, I think he is entitled

to answer the questions.

MR. HOLLEMAN:

Sure, I will let him do it,

but just let's be clear that it is going to eat up the

time, so go ahead.

THE WITNESS:

Let's look at that number.

Again, that number is derived from modeling based,

really, on rat and mice data.

And when you look in

10

humans, the data we have is from really the exhibit that

11

I have given -- I am going to give you now, which is a

12

study out of Greece.

13

exhibit.

14

level of .07, we based that on that Cancer Slope

15

Curve ---

16
17
18

And it is -- already may be an

I don't know, but -- so that when we set the

BY MR. HOLLEMAN:
Q.

Just for the record, let's make this an

exhibit, please.

19

(PLAINTIFF-INTERVENORS EXHIBIT 299

20

WAS MARKED FOR IDENTIFICATION.)

21
22
23

And tell us what you have brought to the


deposition, Exhibit 299.
A.

This is an article "Oral ingestion of

24

hexavalent chromium through drinking water, and cancer

25

mortality in an industrial area of Greece - An ecological

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PAGE 54

study" by Athena Linos and others, published in the

Environmental Health 2011, Volume 10, Number 50.

would read to you from this article the conclusions.

And I

This is a study that looked over about an 11

year period at -- an ecological study of the risk of

cancer.

Oinofita area of Greece supports the hypothesis of

hexavalent chromium carcinogenicity via the oral

ingestion pathway of exposure.

And it said, "Elevated cancer mortality in the

Further studies are

10

needed to determine whether this association is causal,

11

and to establish preventative guidelines and public

12

health recommendations."

13

So, again, when we say from DHHS that we

14

consider hexavalent chromium to be a carcinogen, and that

15

we think that -- we are talking about orally now, not

16

inhalational -- that in oral, that we consider it a

17

carcinogen.

18

preponderance of evidence for that.

19

evidence in mice and rats, it is for stomach cancer.

20

I think it is very important to look at the


If you look at that

Now, we know the number one cause of stomach

21

cancer is H. pylori.

The second or third leading cause

22

of cancer in the world in developing countries, 75

23

percent of them will have H. pylori, not hexavalent

24

chromium.

25

stomach cancer, which makes up less than 1 percent of all

If you look at the clinical diagnosis of

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PAGE 55

cancers in the United States and talk to

gastroenterologists, they don't consider hexavalent

chromium to be a risk factor for stomach cancer.

would consider H. pylori, smoking and other things.

They

So that when I turn on the news at night and

see a reporter go, "The cancer containing water down in

Lee County," I have great concern that we have gone from

a message of a 1 in a million or 1 in 150,000 based on

mice and rats, with an ecological study that did not even

10

show an increased risk of stomach cancer, that the

11

message we are imparting raises people alarm

12

disproportionately to the risk.

13

Part of my job as State Health Director is to

14

protect the people's health.

15

to not unduly alarm people.

16

But also part of my job is

So back to your original question.

At the

17

risk of .07 or, for that matter, the other numbers you

18

mentioned, in California and any other place in the

19

United States, at 5 they could drink the water.

20

315 million people in this country with a hexavalent

21

chromium level of 5, they could drink their water.

22

have literally singled out 240 people out of the entire

23

United States for a one in a hundred thousand, one in a

24

million theoretical risk of cancer that we do believe is

25

a carcinogen in mice, and so therefore we are thinking,

Out of

We

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PAGE 56

the better part of valor, we want people to be aware of

their risk.

We would rather err on that side.

But to raise that to a level to say on the

news that you have cancer causing water, and not even say

what cancers you are talking about, gives me great pause

that someone right now in Lee County might have a

glioblastoma and think, "Well, it is because we drank

this water."

So that is why it matters.

Q.

Dr. Williams, are you a toxicologist?

10

A.

I am not.

11

Q.

Are you an expert in toxicology?

12

A.

I am not.

13

Q.

Are you an epidemiologist?

14

A.

I am not.

15

Q.

Are you an expert in epidemiology?

16

A.

I am not.

17

Q.

You are an OB/GYN, is that correct?

18

A.

Who takes care of patients clinically.

19

Q.

Right.

So would you allow, for example -- in

20

your practice, would you have allowed a toxicologist to

21

come in and begin delivering babies or treating pregnant

22

women?

23

MS. LeVEAUX:

Objection.

24

MR. ROBBINS:

Objection.

25

THE WITNESS:

Again, the point is is that I

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PAGE 57

do not pretend to be a toxicologist, but in making policy

I have to take under advisement both the data that my

subject matter experts give me, but I also have to apply

it clinically.

I have to apply it to people.

So when you ask me why 5 is important to me,

it is because as we look -- and it is establishing policy

-- we look at five things.

health.

at a vanadium level of 0.3, when the average level of

One, we look at the public

And so, as we looked at these people and looked

10

vanadium, I think, in water is 1, and that you have

11

studies, which I am going to show you now, in which

12

we ---

13
14
15

BY MR. HOLLEMAN:
Q.

If -- I mean, you can show me studies, but let

me go back to my question.

16

MS. LeVEAUX:

Objection.

17

MR. ROBBINS:

Objection.

18

MR. ROSSER:

Objection.

19

BY MR. HOLLEMAN:

20
21

Q.

I am going to state my question and see if you

can answer my question.

22

A.

Yes, sir.

23

Q.

When you were administering and working in

24

your OB/GYN clinic, would you have allowed a toxicologist

25

to come in and deliver babies and treat pregnant women?

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MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

MR. ROSSER:

Objection to form.

THE WITNESS:

No, sir.

BY MR. HOLLEMAN:

PAGE 58

Q.

Now, you referred to test in mice?

A.

Yes, sir.

Q.

Is it not true that in science, it is standard

9
10

practice to determine carcinogenic effects by doing


animal testing?

11

MR. ROBBINS:

Objection.

12

MS. LeVEAUX:

Objection.

13

MR. ROSSER:

Object to the form.

14

THE WITNESS:

Yes, sir.

15

BY MR. HOLLEMAN:

16

Q.

Are you aware that the National Toxicology

17

Program of the US Department of Health and Human Services

18

has stated -- and this is a quote -- "Chromium hexavalent

19

6 compounds are known to be human carcinogens based on

20

sufficient evidence of carcinogenicity from studies in

21

humans"?

22

MS. LeVEAUX:

Objection.

23

THE WITNESS:

Yes, I am aware of that

24
25

statement.
BY MR. HOLLEMAN:

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Q.

Now, do you agree with that statement?

A.

Yes.

Q.

And in addition, are you aware the National

Institute of Health has stated that, quote, "That there

is clear evidence that hexavalent chromium is

carcinogenic"?

MR. ROSSER:

Objection.

THE WITNESS:

Yes, I agree with that

statement.

10
11

BY MR. HOLLEMAN:
Q.

And would you agree that the National

12

Toxicology Program of the US Department of Health and

13

Human Services and the National Institute of Health have

14

greater expertise in determining what is a human

15

carcinogen than you do?

16

MS. LeVEAUX:

Objection.

17

MR. ROBBINS:

Objection.

18

MR. ROSSER:

Objection, lack of foundation.

19

THE WITNESS:

Yes, I agree that it is a

20

human carcinogen.

21
22
23

BY MR. HOLLEMAN:
Q.

Well, do you agree that those two institutions

have greater expertise than you do ---

24

MR. ROSSER:

Objection.

25

MS. LeVEAUX:

Objection.

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2

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PAGE 60

BY MR. HOLLEMAN:
Q.

--- in determining what is a human carcinogen?

MR. ROSSER:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

Yes, but I agree with them.

BY MR. HOLLEMAN:

Q.

And do you agree with this statement from the

California Environmental Protection Agency, quote, "Taken

together, the toxicity and cancer studies in humans and

10

animals, plus the mechanistic toxicokinetic and

11

genotoxicity studies provides sufficient evidence for the

12

carcinogenicity if Chromium 6 in humans"?

13

MR. ROSSER:

Same objection.

14

MR. ROBBINS:

Objection.

15

MS. LeVEAUX:

Objection.

16

THE WITNESS:

Yes.

17

BY MR. HOLLEMAN:

18

Q.

And do you agree with that statement.

19

A.

Yes.

20

(Pause.)

21

So now, can I elaborate?

22
23
24
25

Q.

If you would let me ask -- you can respond to

Mr. Rosser's questions --MR. ROBBINS:

And I am going to object for

the record here, because that is three times in a row you

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PAGE 61

have interrupted my witness, the one that you wanted to

talk with.

Let him answer the questions.


MR. HOLLEMAN:

I am more than happy for him

to answer the questions, but I would rather him not give

stump speeches.

6
7

MR. ROBBINS:

truth, let him answer the questions.

8
9

If you want to get to the

MR. HOLLEMAN:

I would love to hear the full

THE WITNESS:

Okay.

truth.

10

So in that case, again,

11

if you look at -- to your point, that when we look at

12

what causes cancer in humans, we rely on animal studies

13

and, in some cancers, if you look at stomach cancer, the

14

one that hexavalent chromium has been associated with, 75

15

percent of those are associated with H. pylori infection,

16

which in humans has been shown at the cellular level to

17

change the DNA and cause cancer.

18

that has been proven to cause cancer in humans at the

19

cellular level.

20

It is the only bacteria

If you look at HPV in cervical cancer, type 16

21

and 18, in humans, it has been shown causality to show

22

cancer.

23

could see that back -- I agree with this statement.

24

again, as I am State Health Director, have to talk about

25

the weight of evidence to support policy and effects of

So in the study that I showed you -- again, if I


And

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that policy, I would just, again, agree with this

statement, "In light of the potentially widespread health

implications of such contamination" -- talking about

hexavalent chromium -- "further studies are critically

needed to explore the possible causal link between

exposure to hexavalent chromium through drinking water

and cancer risk."

chromium to H. pylori, which is estimated to cause 75

percent of the stomach cancers in the world, or HPV,

10

So that, to me, to equate hexavalent

would be inappropriate.

11

BY MR. HOLLEMAN:

12

Q.

And HPV is ---

13

A.

(Interposing) Human Papillomavirus.

14

Q.

--- cervical cancer?

15

A.

Yes, sir.

16

Q.

Now, we are not -- no one is referring to

17

cervical cancer in connection with either of these two

18

substances, is that correct?

19

A.

No, that is not correct.

In the reproduct --

20

in the study in Greece, there were five reproductive

21

cancers, which they don't say what they were.

22

study is used -- when you say, you know, this -- "hasn't

23

this been linked to studies in humans," that is the study

24

they are talking about.

25

So that

In their study in humans, they say liver

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cancer, kidney cancer and reproductive tract cancers.

They did not see an increased risk in stomach cancer.

Q.

So you think -- so it is your view that

consumption of hexavalent chromium may also raise a risk

of cervical cancer?

A.

I don't know that.

No, I am not saying that

at all.

What I am saying is that the studies that you

quote in humans that correlate hexavalent chromium with

cancer in humans, since you can't do those studies in

10

humans, and there hasn't been shown to be a causal link,

11

are these ecological studies.

12

provided you, they just saw an increase in liver, kidney

13

and they say reproductive tract tumors.

14

ovarian, that could be uterine.

15

doesn't specify.

16
17

Q.

In this study which I have

That could be

I don't know.

It

Now, before you sent out the "do drink"

letter ---

18

A.

(Interposing) Yes.

19

Q.

--- did you talk with Governor McCrory?

20

A.

No.

21

Q.

Did you talk with anyone on Governor McCrory's

A.

The only persons that I would have talked to

22
23

staff?

24

would have been Josh Ellis in the Communications Office

25

once or twice.

And I think one time I met with Rick

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2
3
4

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PAGE 64

Martinez, but not about the letters.


Q.

Well, let's start with Mr. Ellis.

What

communications did you have with him?


A.

Okay.

Could I -- could I just update a little

bit and then I will answer your question, I promise, from

October, after the letter went out?

7
8
9

Q.

Well, if you could answer my question and then

we can go back to that point.


A.

Okay.

I had a conversation with Josh Ellis

10

sometime, I think, in December or January driving back

11

from Charlotte.

12

conversation was about.

13

water, but I don't know.

And I do not remember at all what that


I suspect it was about well
I just don't remember.

14

Q.

Do you remember what he said?

15

A.

I don't.

16

Q.

Do you remember the substance of what he said?

17

A.

I don't.

18

Q.

Do you remember what his concerns were?

19

MR. ROSSER:

Objection.

20

THE WITNESS:

I don't.

21

BY MR. HOLLEMAN:

22

Q.

Do you remember what you said?

23

A.

No.

24

Q.

Did you talk with him again?

25

A.

Yes.

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Q.

And when was that?

A.

Okay.

PAGE 65

That was on -- and I am -- if I have

talked to him other than that, I don't remember.

The

next time was on February the 25th.

correct.

Q.

And what was ---

A.

(Interposing) The nature of that conversation?

Q.

--- the nature of the conversation?

A.

Good.

I think that is

And the nature of that conversation was

10

during that space of time -- and, again, this will be a

11

little long winded, and I apologize -- after the letter

12

went out, went down and met with Amy Brown.

13

gracious enough to show me around ---

14

Q.

(Interposing)

She was

Just so we will be clear, and

15

then you can finish, when you say "the letter went out,"

16

which letter are you referring --The October 15th letter.

17

A.

(Interposing)

18

Q.

Thank you, go ahead.

19

A.

And I am going to try to make this as quick as

21

Q.

Go ahead.

22

A.

So in January -- on January 13th, there was an

20

I can.

23

Environmental Review Committee meeting in which at that

24

meeting Mr. Reeder was very demonstrative about

25

criticizing that there were people in Charlotte or areas

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PAGE 66

that were driving from houses to other houses to drink

and use water that had higher levels of hexavalent

chromium than the houses they were leaving.

that meeting.

there was a lot of clamor, I guess you would say, in the

General Assembly.

times, "Well, what would you do about that if somebody in

municipal water had higher levels?"

your water."

10

Megan was at

And when she got up to respond to that,

And she said -- she was asked three

And she said "filter

I will get back to that.

But I got up then -- this is all on audio

11

tape.

12

"We don't regulate municipal water in DHHS."

13

on.

14

You can watch this, or you can hear it -- and said


I am moving

So during this time. the general consensus was

15

from the staff -- Danny, Megan, Mina and me -- I would

16

say, that we were waiting on the data that DEQ had said

17

-- talked about in that letter on background wells.

18

starting in January, after that meeting, on about seven

19

occasions, when I was asked -- and I will go through

20

those later, I am getting back to your question, I

21

promise -- I was asked, "Well, Dr. Williams, what is

22

going on with well water?

23

Review Committee.

24

"This is chaos, that people are hearing different

25

things.

So

You are in the Environmental

They argued -- Senator Rabon said,

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I would say publicly to North Carolina County

Commissioners, different places, that we were waiting on

the data.

the background data supported that this was background,

we were clearly going to look at rescinding the "do not

drinks."

13th.

8
9

But based on the information we had now, if

I said that publicly, starting after January

Okay?
So on February 24th -- yes, is that right --

no, 23rd, whatever that Wednesday is, I called a meeting

10

of Danny, Megan, Mina and Chris Hoke, because we now had

11

an emerging issue in Lee County where they were using our

12

hexavalent chromium levels and our vanadium levels that

13

had been established specifically for CAMA, and not the

14

other 6,000 people and the other 2.5 million people, and

15

they had unilaterally, talking to our staff, taken our

16

levels and applied them to well water in Lee County.

17

And there was a tremendous amount of clamor.

18

I went down there and talked to them in a public forum on

19

January 25th or so, and a lot of really angry people.

20

Remember, there was no coal ash in Lee County, but they

21

had used our levels.

22

elevated for hexavalent chromium and vanadium.

23

went down there they were very angry because they felt

24

like their wells had been contaminated by -- I am not

25

sure what, because there is no coal ash there.

And 17 of the 24 wells came back


So when I

But they

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PAGE 68

were angry.

So I called a meeting and said, "This is a

dynamic process, this is not a static process.

letters a year ago, but in this space -- we are now

talking about in a public forum regulating municipal

water, because people ask us.

water in wells that aren't even CAMA.

it for our other 6,00 new wells; we are not doing it for

the other 900,000 people; nobody else in the country is

And now we are regulating

doing it as these levels.

11

about rescinding the "do not drinks."

We are not doing

10

12

We issued

And our people got to talk

So that initiative came from me.

Okay,

13

because I think -- it came from me.

I called them

14

together.

15

Atlanta.

16

of -- which is accurate -- just kind of freely thought

17

and said, "When I look at the levels of 0.3 and .07, that

18

I don't think that proportionally that they warrant the

19

do not drink recommendation.

20

HREs.

21

The fact that it is associated with cancer, I back that.

22

You have heard me under oath say I think it causes cancer

23

in humans at some level.

24

levels, I am not convinced that those levels that we have

25

rise to the level of more than education."

Megan was on a conference call.

She was in

And as Mina said in her deposition, I just kind

I am all for keeping the

The science that made those HREs I am all for it.

But when you look at those

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PAGE 69

Second thing was, as we looked all

around the country, that all of our peers -- other states

have toxicologist, other states have epidemiologist,

other states have State Health Directors.

15,000 people, they have been looking at this since the

'90's and specifically since 2008 -- they haven't weighed

in on this.

8
9

The EPA has

And we always look at what our peers do.

And I was very concerned from listening to


lots of people, from going down there and talking to

10

people, going to the forum, listening to people in the

11

legislature, that we have raised this -- especially for

12

hexavalent chromium -- to a level that had engendered

13

fear.

14

-- and I have had hundreds -- I think people have asked

15

me about vanadium once.

16

Colon, North Carolina who did.

17

talk about vanadium.

18

I can tell you, Frank, in all of my conversations

And I can remember the lady in

But it is cancer.

I can't get people to

And what I think an

19

unintended consequence of our policy was, was that when

20

we interjected the word "cancer" in the conversation,

21

whether it was one in a million or one in a hundred

22

thousand or what type of cancer, that I felt as Public

23

Health Director one of the things we had to be very

24

careful about was not unduly alarming people, whether it

25

is Zika virus in mosquitoes or whatever, and that that

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had, in fact, happened.

question.

5/18/16

PAGE 70

I promise I am getting to your

So at that meeting, I said, "I just -- I want

to keep the HREs, but I feel like we ought to rescind the

"do not drinks".

to Danny about it.

on board with that as a Director of the Division of

Public Health.

Danny felt that we should wait on the data, at that

Danny and Chris -- I had already talked


And Danny agreed.

Danny was totally

So when Megan says in her deposition that

10

meeting, that is not correct.

Previously he thought that

11

and I thought that.

12

meeting with the -- with the North Carolina County

13

Commissioners in late January, Tom said that the data

14

that we were waiting for since October wasn't back yet.

It became apparent to me at a

15

Q.

Who is Tom?

16

A.

Tom Reeder.

He said it wasn't -- Duke hadn't

17

sent it yet.

18

send it?

19

he said four weeks.

20

in a meeting with Tom, and I said -- because I had been

21

out there saying, "this data is coming anytime now from

22

the wells."

23

to DEQ to look at background wells away from -- this is

24

my understanding.

25

And I said, "Well, when are they going to

It has been October, it is now January."

And

Mid-February, two weeks after I was

This was data that Duke was going to provide

So I was up at Capitol Hill, I said this.

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PAGE 71

said this to the North Carolina County Commissioners.

said this to the Lee County Commissioners.

are just waiting on the data, and if that is background,

based on everything else we know, we will talk about

rescinding the do not drinks.

I said, "We

Well at the meeting two weeks after he said

four weeks, he said it would be Summer.

And I said at

that meeting, famously, "When I am deposed, I am going to

say you told me four weeks, and now you are telling me

10

Summer."

11

I said, "Well, at my deposition I am going to say you

12

said four weeks."

13

And he said, "Well, you misunderstood me."

And

So at the meeting, I told the four of them

14

that I did not think that in this dynamic situation where

15

we were now applying standards to municipal water, that

16

we had Lee County using our standards for water that

17

didn't have anything to do with CAMA, which was what we

18

had initially been asked to do, that I thought we

19

couldn't wait for the data.

20

is May and the data still hasn't come.

21

And as I sit here today, it

So we all agreed to rescind the "do not

22

drinks."

Now Megan, in her deposition says that she did

23

not do that.

24

to depose Chris and Danny, and she was on the phone -- I

25

asked them twice, did I somehow miss it -- at that

But at that meeting -- and you are welcome

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PAGE 72

meeting, when I said -- and again, as I sit here before

you under oath, I can't -- we didn't vote.

been in a meeting where we voted.

everybody okay with that?

that,"

I have never

I just said, "Is

Is everybody on board with

I don't remember my exact language.

And so as Danny has pointed out, nobody

objected.

And so when I say that we had consensus to

rescind the "do not drinks," it is based on that meeting

at which we called for that reason, from five people.

10

And those are the only five people who were involved in

11

that meeting.

12

Q.

What meeting?

13

A.

This was the meeting on February 23rd, on a

14

Wednesday at 4:00 o'clock in the afternoon over in DHHS

15

on District Drive -- on Six Forks, that I called for that

16

reason.

17
18

Q.

So, now, I am still getting to your question.


Let me just restate what I think my question

was, as I recall, from several minutes ago.

19

A.

I apologize.

20

Q.

And that is, I believe you had said you had

21

talked with Mr. Ellis ---

22

A.

(Interposing) Right.

23

Q.

--- on two occasions.

24

A.

Right.

25

Q.

And my question to you was, what was the

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PAGE 73

second occasion?

A.

Right.

And I am getting ready to tell you

right now, I promise.

So that -- we decided that.

So,

there has been some criticism of me that I said that we

had consensus, and they have looked at the deposition --

but at that meeting, I came out of the meeting, and to

this day, under oath, I will tell you that it was my

impression we had consensus.

meeting -- for a reason I am going to tell you later --

And I asked after that

10

if I had anyhow misunderstood that, and I was told no.

11

Okay.

12

So on Thursday night -- this was on Wednesday

13

-- on Thursday night I get a text, I believe, from Rick,

14

the Secretary, and he says, "I just had a conversation

15

with Duke Energy."

16

don't know what that was about.

17

told Rick on numerous occasions my frustration for not

18

having the data.

19

So we make him aware, we bring things up to him.

20

I don't know who he talked to.

And he said -- I had

Rick's culture is, "We run our shops."

So he said -- I think, if I remember the

21

conversation correctly, he said -- I mentioned that we

22

just really would like to get that data sometime.

23

said, "What data?"

24

background.

25

months.

And he

And I said the data from the

He said, "We have had that data for two

We sent it to DEQ two months ago."

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And so he called me -- or I called him, he

said, "Randall, I have the data.

right now."

PAGE 74

I am sending it to you

And it was an e-mail, I think.

And so I got the data.

It was a report from a

group called Hayden and Autrey (phonetic) out of Boston.

It was -- it was enormous.

reams of data in a narrative report.

on a Thursday night.

distinctly.

It was like 600 pages of just


Okay?

So that was

I was in Winston, I remember

The next day was in the North Carolina Rural

10

Health Conference.

11

And I -- I can't remember when I talked to Rick, but,

12

anyway, I called our communications office, because one

13

of the tasks I had had was to write a letter responding

14

to Lee County, okay?

15

So I stayed up, I read what I could.

Just -- just this, "Why are you using levels

16

from the state for Lee County, when you don't look at the

17

other 6,000 people and the other 2.5 million people?

18

they were supposed to be in a point source down in -- in

19

Gaston County and others.

20

who is our Communications Director, and I said, "Well, I

21

have data here that is -- shows that this is background,

22

as I read the report."

23

vanadium and hexavalent chromium in these other wells.

24
25

And

And I called Kendra Gerlach,

And the report said that for

She then talked to Josh Ellis, who is at the


Governor's Communications Office.

And he called back and

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PAGE 75

said, "You cannot use that data because it hasn't been

vetted by DEQ."

called Tom Reeder and I said, "Tom, I have this huge

volume of data from Duke Energy about background wells,

and a narrative report -- kind of a consultants report,

and as I read it this looks like hexavalent chromium and

vanadium are background."

8
9

So I said "Okay."

So that weekend I

He said "Oh, yeah, we have had that."

And I

said, "Well, Tom, for two months it has clearly been my

10

understanding that we are waiting for the data from

11

Duke."

12

analyzing that data."

13

the data to Danny Staley.

14

has been a local health director and a Director.

15

will never forget, I called him Sunday night or

16

something, I said "What do you think?"

17

all background."

18

And he said, "Well, you misunderstood me.


And so I said "Okay."

We are

So I gave

And Danny looked at it, who


And I

He said "It is

That is what he said.

So I talked to Rick either on Monday or

19

Tuesday -- this is now February 29th, March 1st.

20

said, "I have talked to Secretary van der Vaart" -- I can

21

remember where he was standing when he said this.

22

said, "You can't use or rely on the data because it has

23

not been vetted by DEQ."

24
25

And Rick

He

And the reason that is important is, I have


not.

I have never looked at the report again.

I never

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PAGE 76

-- I couldn't -- I just don't remember that much about

it, because I thought I was going to have plenty of time

to go through it.

unfamiliar to me because many time, in trials, I will

have

allowed to use that in your decisions."

jury foreman, we were not allowed to use the fact that

the witness -- I wasn't the foreman, I am sorry.

was on the jury, we weren't allowed to use the fact that

It was very long.

And that was not

a judge say to me, "Dr. Williams, you are not


When I was a

When I

10

the witness wasn't testifying against him in making our

11

decision.

12

inadmissable in court.

13

And I have had cases where things were

So even though I had that, the only person

14

that knows that is me and Danny.

15

with anybody else in DPH and never made any decisions

16

based on that.

17

of, I think, with Josh Ellis.

18
19

Q.

I have not shared that

That is my only two conversations I know

What about -- I believe you said you talked to

Mr. Martinez?

20

A.

Yes.

That was sometime in February.

We had a

21

meeting at DEQ.

22

television interview, I believe.

23

was there in the room as we were getting ready to do the

24

television interview, as I remember.

25

communications, I think.

And Tom Reeder and I were going to do a


And we were just -- he

He was in

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1
2

Q.

What is his job?

A.

communications.

Q.

Do you know what

I think he -- no.

I think it is

Have you talked with anyone else in the

Governor's Office?

A.

No.

Q.

Now, let me go back to this.

PAGE 77

responsibility he has in the Governor's Office?

5/18/16

What is the

cancer risk for .7 parts per billion of hexavalent

10

chromium in drinking water?

11

in a million, what is the risk at .7?

12

A.

Right.

If .07 is a million -- one

And I am going to answer you the way I

13

often answer in trial, and that is this: is that

14

Aristotle said, "It is an educated man who does not

15

assess a level of precision to that which does not lend

16

itself to precision."

17

the risk is 1 in a hundred thousand versus one in ten

18

thousand, one in -- I would tell you that, based on that

19

Cancer Slope curve, if we are talking about which cancer

20

-- stomach cancer -- that I do not think you can get at

21

that level of precision.

22

just, as a clinician who takes care of patients, disagree

23

with.

24
25

So when we sit here and go that

And for me to tell you that, I

So my answer is, is that as we made our


decision, there were five people in the room: a clinical

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PAGE 78

doctor, a head of public health who had been in a local

health department and was head of the Division of Public

Health with a degree -- a Master's in public health, an

epidemiologist, an environmental engineer, and a lawyer

with 30 years experience.

experience to make our decision.

And we used all of that

So as a clinician, I am happy for you to have

the toxicologist and the population health people walk

you through those numbers, but as a clinician who takes

10

care of patients, that one in a hundred thousand, that

11

one in ten thousand, I do not think that we can assign a

12

level of precision to that.

13
14

Q.

So you are saying you don't know the cancer

level risk at .7?

15

MR. ROSSER:

Objection.

16

MS. LeVEAUX:

Objection.

17

MR. ROBBINS:

Objection.

18

MR. BARKLEY:

Objection.

19

THE WITNESS:

I would tell you that I know

20

what the Cancer Slope curve says.

21

talking to a patient across the desk, I would never give

22

the level of certainty to say to her, based on that,

23

"Well, don't worry, your risk is only one in ten -- we

24

are so knowledgeable about this.

25

this, it is okay.

But clinically,

We know so much about

Yours is one in ten thousand.

Her's

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is one in a hundred thousand."

evidence supports a clinical decision.

BY MR. HOLLEMAN:

Q.

PAGE 79

I do not believe that

And I guess my question, again, is do you know

what the cancer risk is at .7 hexavalent chromium parts

per billion if .07 is one in a million?

A.

Clinically, no.

Q.

Do you know in any way, in any ---

A.

(Interposing) Based on the modeling?

10

Q.

Yes.

11

A.

Yes, anyway -- if you do the modeling, at .07

12

it is one in a million.

At point -- what did you say --

13

.7?

14

on down it would be -- you know.

It would be one in a hundred thousand.

And moving

15

Q.

And seven would be one in ten thousand?

16

A.

Right.

But again, I am going to respond to

17

that.

So if you think that the risk from hexavalent

18

chromium -- if you are going to tell, clinically, a

19

patient or a group of patients, because their hexavalent

20

chromium level is 5 that their risk of cancer is one in

21

ten thousand, I would have to reconcile that fact that

22

stomach cancer, which is what that modeling is based on

23

in mice models, is decreasing markedly in the United

24

States.

25

EPA has had that same data for eight years and has not

It is less than one percent of cancers.

And the

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PAGE 80

acted on that.

data with toxicologists and epidemiologists and medical

directors, and have not acted on that.

Q.

That -- 49 other states have that same

Now, would you, as a clinician, recommend that

a patient regularly drink water that has a hexavalent

chromium level of 20 parts per billion?

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

MR. ROSSER:

Object to form.

10

THE WITNESS:

No.

11

BY MR. HOLLEMAN:

12

Q.

Would you recommend that a patient regularly

13

drink drinking water that has a hexavalent chromium level

14

of 10 parts per billion?

15

MR. ROSSER:

Same objection.

16

MS. LeVEAUX:

Objection.

17

MR. ROBBINS:

Objection.

18

MR. BARKLEY:

Objection.

19

THE WITNESS:

Yes.

20

BY MR. HOLLEMAN:

21

Q.

And would you, as a clinician, recommend that

22

a patient regularly drink drinking water that has

23

hexavalent chromium level of 15 parts per billion?

24

A.

Fifteen?

25

Q.

Fifteen.

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MR. ROSSER:

Objection.

MS. LeVEAUX:

Objection.

THE WITNESS:

Fifteen?

BY MR. HOLLEMAN:

PAGE 81

Q.

Fifteen.

A.

No.

Q.

So your cutoff in your recommendation is

somewhere between 10 and 15?

A.

Well, it is 10.

10

Q.

It is 10?

11

A.

Well, I -- so let me tell you where that comes

12

I mean, it is 10.

from and what we are doing on that, is that okay?

13

Q.

Well, I just want to -- I will be glad to let

14

you answer another question if you want to pose it and

15

ask it, but just to be clear, so 10 is the cutoff for you

16

of what you would recommend a patient to drink?

17
18

A.

Well, again, I don't know that I would answer

it that way, but let me -- as a clinician ---

19

Q.

Let me restate my question and see if you

20

know.

So the point at which, as a doctor, you would

21

recommend a patient not regularly drink water with

22

hexavalent chromium in it is at 10 parts per billion?

23

MS. LeVEAUX:

Objection.

24

MR. ROBBINS:

Objection.

25

BY MR. HOLLEMAN:

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PAGE 82

Q.

Is that correct?

A.

As a clinician, yes.

Q.

Okay.

A.

So let me ---

Q.

And so let me -- why don't I pose a question

and then you can answer it.

per billion?

A.

with me.

Right.

And why do you pick 10 parts

And I greatly appreciate your patience

Being laconic is not one of my virtues.

So, as

10

you know, there is a very health debate in the United

11

States about total chromium versus hexavalent chromium,

12

such that we have several numbers out there.

13

.02 Health Protective Level from California, .07 Health

14

Protective Level from North Carolina, we have 10 for an

15

MCL for California, and 100 for total chromium for the

16

EPA, which says you can consider that all of hexavalent

17

chromium.

18

We have a

Now, if you follow that logic, then

19

theoretically they are saying that a total -- if you

20

consider a total chromium of 100 safe, I would disagree

21

with that.

22

that, for levels over 10, we have instructed our staff,

23

at this point, to call anybody with a hexavalent chromium

24

or total chromium level over 10 -- because theoretically,

25

people say that total chromium can be all hexavalent

Okay?

So that what we are looking at now is

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chromium.

people to "do not drink" their water.

PAGE 83

So for those two levels, we are asking those

Now, to the best of our understanding, most of

those did not get the letter saying "do not drink," but

some of them did.

are calling them personally and saying that if you are

over 10 for either total chromium, which is our

groundwater standard for total chromium in North

Carolina, or hexavalent chromium, at this time.

10

And we are rescinding that.

And we

Now, Frank, what confuses that picture is

11

there is a bill right now before the legislature that

12

says that North Carolina, if it passed, can only set MCLs

13

for those substances which have established EPA federally

14

guided MCLs.

15

lot of angst from my staff, Danny and Chris.

16

having to work, as we speak, because we think it is

17

vitally important that we have the ability to issue

18

emergent HREs and "do not drinks" if needed for new

19

substances.

20

There is a lot of angst about that, and a


So we are

And when you look at hexavalent chromium in

21

particular, that theoretically, if that law passed, then

22

the level of hexavalent chromium that could be in water

23

would be 100.

24
25

Q.

And we disagreed with that.

So if I understand what you have said

correctly, for people who have -- over 10 or 10 or more?

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2
3

A.

5/18/16

PAGE 84

10 or more for total chromium or hexavalent

chromium.
Q.

So for -- so let me pose this question, then.

So as I understand it, for people who have 10 or more

parts per billion chromium or hexavalent chromium in

their well water ---

A.

(Interposing) Yes, sir.

Q.

--- you have rescinded the "do drink" letter?

A.

Yes, sir.

10

Q.

And you are basing the 10 parts per billion

11
12

We -- we are going to call them.

standard on what?
A.

Well, again, at this point we feel like it is

13

the 10 for the Groundwater Standard for total chromium.

14

There is a standard for total chromium of 10.

15

that is already established.

16

going to make the argument on one hand that total

17

chromium can be all hexavalent chromium, and you have got

18

a total chromium of 10, it stands to reason that that is

19

all hexavalent chromium.

20

are -- anything over 10, whether it is total chromium or

21

hexavalent chromium, we are going to say "do not drink

22

your water."

23

Q.

So -- and

So if you -- if you are

And our standard is 10, so we

So you are basing -- as I understand it, the

24

agency is basing it on a pre-existing groundwater MCL?

25

2L Standard?

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PAGE 85

A.

Yes, sir.

For total chromium.

Q.

In North Carolina?

A.

Yes, sir.

Q.

Now, you referenced earlier the 100 parts per

billion Federal Safe Drinking Water Standard for

chromium?

A.

Yes, sir.

Q.

And are you aware that that was issued before

9
10

it was recognized that hexavalent chromium was a human


carcinogen?

11

MS. LeVEAUX:

Objection.

12

THE WITNESS:

I am.

But, again, my point to

13

that is is that the EPA has had 25 years, especially the

14

last eight years -- they know that.

15

is not new news to them.

16

the last eight years to change that.

17

fairly quickly when they want to.

18
19
20
21

And so, again, that

But yet they haven't moved in


And they can move

BY MR. HOLLEMAN:
Q.

And are you aware that it is under

reconsideration by the EPA, 100 parts per billion?


A.

Absolutely, because I talked to Eric Burneson,

22

the head of the Water Division for the EPA, and he said

23

in December, they are going to issue their initial

24

guidance based on their IRIS standards on this debate

25

about total chromium versus hexavalent chromium.

And

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PAGE 86

that also factored into our decision somewhat as we moved

forward.

Q.

Now, does everyone -- well, let me back up for

a minute.

Before you came to HHS, had you ever dealt

with an issue related to hexavalent chromium?

A.

No, sir.

Q.

So what you know about hexavalent chromium is

all on-the-job training since you joined HHS, is that

correct?

10

MR. ROSSER:

Object to the form.

11

MR. ROBBINS:

Objection.

12

THE WITNESS:

It has been since I came.

And

13

I guess if we consider studying on-the-job training, the

14

answer is yes.

15
16
17

BY MR. HOLLEMAN:
Q.

And the "do not drink" letter was issued

before you got there, is that correct?

18

MR. ROBBINS:

Objection.

19

THE WITNESS:

Yes, sir.

20

BY MR. HOLLEMAN:

21
22

Q.

And it was issued on the advice of

toxicologists in both DEQ and HHS, is that correct?

23

MR. ROSSER:

Object to the form.

24

THE WITNESS:

Yes, and it was a departmental

25

decision.

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2

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PAGE 87

BY MR. HOLLEMAN:
Q.

Now, do you believe you have more expertise

than the toxicologists in HHS and DEQ concerning what

recommendation should be made, based on a Health

Screening Level for hexavalent chromium ---

MS. LeVEAUX:

Objection.

MR. ROSSER:

Objection.

MR. ROBBINS:

Objection.

MR. BARKLEY:

Objection.

10

BY MR. HOLLEMAN:

11

Q.

--- to well water users?

12

A.

Yes.

13

Q.

as to this -- did anyone on your staff object

14
15

to the issuance of the "do drink" letter at any time?


A.

Yes.

You know, I think Megan and Mina clearly

16

-- I think Mina -- Megan's last words were she was

17

conflicted.

18

her participation in that meeting as being -- I think

19

Megan has always -- who I respect greatly -- has always

20

had a population health view toward this.

21

had concerns.

22

concerns about expressing risks in comparison to other

23

risks, like "one in a million versus the risk of being

24

struck by lightning," or the risk of drowning in a

25

bathtub or something.

So I do not want to misrepresent in any way

And she has

One would be that -- she has always had

She has just clearly stated to me

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PAGE 88

that she thinks that is not the best way, from an

epidemiological standpoint, to express risks.

I think Megan and Mina struggle -- and this

has become relevant -- with -- they feel very strongly

that HREs were calculated appropriately, that the

educational part of this remains the same.

are always concerned, as we talk about "do not drink,"

that we are watering down the message about the risk they

see.

That -- they

And the reason I know this to be true is after that

10

meeting, we then wrote a letter.

11

many participants in it -- the "do drink" letter.

12

And that letter had

And there is a sentence in that letter that

13

says, "We will be issuing your forms," because there --

14

there were people who felt very strongly that they had

15

gotten a form with the first letter, and it said, "This

16

is your level.

17

That is a standard form we use for new wells.

18

regulate old wells, we regulate new wells.

19

We wrote that letter.

20

I said, "Can you help me design the form?"

21

"I don't want to do that."

22

she said, "Well, I -- I just feel like in sending another

23

form, it looks like we are recanting our HREs.

24

professionally, I just disagree with that."

25

said the same thing.

And our recommendation is do not drink."


We don't

I went back to Mina and


And she said,

And I said, "Why not?"

And

And

And Megan

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PAGE 89

So I talked to people, and they said -- and I

famously used this line that -- they said, Well, we

don't understand that, because they agreed to the other.

and I said, "Yes, but it is like getting married, but

they didn't want to get a marriage certificate."

they thought, professionally, to send out a form that

could possibly be interpreted as not backing the HREs was

something that they didn't want to do.

9
10
11
12

And so we didn't do it.


do it.

That

We are not going to

So I deferred to them.
Q.

Well, the form you are talking about is the

actual Usage Recommendation Form, is that correct?

13

A.

Right, yes.

14

Q.

The "do not drink" letter that went out had a

15

cover letter from DEQ that gave the testing results, is

16

that correct?

17

A.

18

form out again.

19

Q.

20

Yes, sir.

And we were going to send that same

And then attached to it was a Usage

Recommendation Form from HHS?

21

A.

Correct.

22

Q.

And it contained the "do not drink, do not

23
24
25

cook with this water" recommendation, is that right?


A.

Right.

So the original intent was to send out

the same form ----

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1

Q.

5/18/16

PAGE 90

Well, let's just make sure we get the

chronology correct.

So the "do not drink" letter had

attached to it a Usage Recommendation from HHS that

contained the "do not drink, do not cook with this water"

recommendation, is that right?

A.

Yes, sir.

Q.

Now, on the "do drink" letter, as I understand

it, the "do drink" letter promises at the end that a

changed Usage Recommendation Form will be issued by HHS,

10

is that correct?

11

A.

Right, correct.

12

Q.

And that never happened?

13

MS. LeVEAUX:

Objection.

14

THE WITNESS:

Correct.

15

BY MR. HOLLEMAN:

16

Q.

A new form never went out?

A new Usage

17

Recommendation Form never went out to well owners, is

18

that correct?

19

MR. BARKLEY:

Objection.

20

THE WITNESS:

That is correct.

21

BY MR. HOLLEMAN:

22
23

Q.

And that is because Dr. Shehee and Dr. Davies

objected to issuing a new form?

24

MS. LeVEAUX:

Objection.

25

MR. ROBBINS:

Objection.

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THE WITNESS:

Yes.

PAGE 91
And as I told Megan at

that meeting, I said, "Megan, up to now, my way of

leading is consensus and collaboration.

I am."

point we have consensus."

23rd meeting, whatever.

I mean -- and so I said, "I feel like to this

This was after the February

This is, like, a week later.

"I feel like if I move forward and send this

form that I will not have consensus."

"That is right.

10

And she said,

I mean, the two of us would not agree

with that decision."

11

And so I didn't do it.

BY MR. HOLLEMAN:

12
13

That is just who

Q.

Was that conversation after the "do drink"

letter went out or before the "do drink" letter went out?

14

A.

No, that was before the "do drink."

I mean --

15

because they -- the -- no, I am sorry.

16

letter had gone out and -- because I thought we had

17

consensus.

18

distinction between agreeing to the "do not drink" and

19

the actual form.

20

them.

21
22

Q.

The "do drink"

And then when -- and we did, but they made a

That, professionally, was different to

Now, did you ever make a public announcement

or tell the well owners that ---

23

A.

(Interposing) No.

24

Q.

If I could finish.

25

A.

I am sorry.

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Q.

5/18/16

PAGE 92

Did you ever tell the well owners or make a

public announcement that no changed Usage Recommendation

Form would be issued by HHS?

A.

No.

We have not -- we have purposefully

stopped some of our communication, because there is a

bill in the legislature that, if it passes in whatever

form, could have to result in another letter going out.

Q.

March of 2016?

10

A.

Well, now, was that bill in the legislature in

No, but by the time we got around to talking

11

about sending out that second form, it was.

12

that point, we just decided the worst thing to do would

13

be send out another letter and then have to send out

14

another letter.

15

owners over the 10, we are holding our communications.

16

Q.

And so at

So for right now, other than the well

Do you think it would have been advisable to

17

have notified the well owners who had received the "do

18

drink" letter that the professional staff at HHS were

19

refusing to issue a changed Usage Recommendation Form?

20

MR. ROSSER:

Objection to form.

21

MR. ROBBINS:

Objection.

22

MS. LeVEAUX:

Objection.

23

MR. BARKLEY:

Objection.

24

THE WITNESS:

No, because I think "refusal"

25

is too strong of a word.

I just asked them and they

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PAGE 93

said, "We would rather not, because we think it will take

away from the science of the levels that have been set."

And I respected that.

BY MR. HOLLEMAN:

Q.

Well, let's take away the word "refusal."

A.

Okay.

Q.

Do you think it would have been advisable to

inform the people who had received the "do drink" letters

that HHS was not going to issue a changed Usage

10

Recommendation because of the concerns of the

11

professional staff?

12

MS. LeVEAUX:

Objection.

13

MR. ROBBINS:

Objection.

14

THE WITNESS:

No.

I think the way we will

15

word that letter is -- we will send out a letter once we

16

have the opportunity that will say that it is very

17

important, as we talk about "do not drink" and "drink,"

18

that you understand that for our HREs that they were

19

scientifically calculated, and the recommendations about

20

how you might want to mitigate that stand.

21

Now, Frank, you have got to remember in this

22

space is that the report that came out of DEQ on April

23

1st changes the IMAC for vanadium to 20.

24

level changes, if it does in fact change, and we derive

25

from CAMA our HREs, we are going to have to send out

So once that

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PAGE 94

another letter telling everybody who is under 20 for

vanadium that they can drink their water.

see, it is very complex.

4
5

So, as you

BY MR. HOLLEMAN:
Q.

Is it your belief that people should receive

more information, not less, about their health and their

drinking water?

MS. LeVEAUX:

Objection.

MR. BARKLEY:

Objection.

10

MR. ROBBINS:

Objection.

11

THE WITNESS:

No.

I think that when you

12

have a news release that says there is cancer in well

13

water down in Lee County, that sometimes too much

14

information is confusing and makes people alarmed.

15
16

BY MR. HOLLEMAN:
Q.

So it is your belief that it is better to

17

withhold some information from the well owners, rather

18

than to cause alarm?

19

MR. ROSSER:

Objection to form.

20

MS. LeVEAUX:

Objection.

21

MR. ROBBINS:

Objection.

22

MR. BARKLEY:

Objection.

23

THE WITNESS:

No.

I think it is important

24

that, as Public Health Director, I give out the

25

appropriate level of information, whether we are talking

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about Zika or well water or anything.

BY MR. HOLLEMAN:

3
4
5
6
7
8
9

Q.

PAGE 95

Who determines what the appropriate

information is for the public to know?


A.

Well, I think, you know, certainly,

collaboratively within DPH, we decide that.


Q.

And do you ultimately have the responsibility

for making that decision?


A.

I suspect I do.

But, again, I would seek the

10

support of the Secretary.

And I would make -- my normal

11

way of doing things is to seek consensus.

12

Q.

Now before you sent the "do drink" letter ---

13

A.

Yes, sir.

14

Q.

--- did you know that Dr. Davies objected to

15

the "do drink" letter?

16

MR. ROSSER:

Object to the form.

17

MR. ROBBINS:

Objection.

18

THE WITNESS:

She did not object to the "do

19

drink" letter at that meeting.

20

She did not object.

BY MR. HOLLEMAN:

21

Q.

I am not saying at that meeting.

22

A.

Right.

23

Q.

I am saying before you mailed the letter, had

24

Dr. Davies expressed an objection to the "do drink"

25

letter?

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2
3

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5/18/16

PAGE 96

Not after the time of the meeting on the 23rd,

no, she did not.


Q.

But before that meeting on the 23rd, she had

objected to the "do drink" letter?

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

Well, everybody had -- I mean,

everybody had objected, because we didn't have the data.

We were waiting on the data.

The thing that changed was

10

we realized we weren't going to get the data.

11

do we do in a dynamic situation?

12

Staley and Randall Williams and whoever objected to

13

sending out the letter before we got the data in

14

mid-January, that is true.

15
16

Then what

But when she says Danny

I was in that camp.

BY MR. HOLLEMAN:
Q.

Now, were you aware that -- or did Dr. Shehee

17

object to sending out the "do drink" letter before it was

18

sent out?

19

A.

Not after February 23rd, but before that, she

20

would have been like the rest of us, that we were waiting

21

for the data.

22

of fact, I said this in public forms.

23

to me, "What is the status," I said, "We are waiting on

24

the data.

25

seriously rethink our do not drinks.

If you would have come to me on -- matter


When people said

And once we have that data, we are going to


I said that in

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PAGE 97

numerous public forums.

2
3

5/18/16

Q.

At the February 23rd meeting, was Dr. Shehee

present at that meeting?

A.

Yes.

Q.

Did she say she agreed with the "do drink"

letter at that time?

A.

Well, again, I have gone back and asked Chris

and Danny, and you are welcome to depose them, but it was

clearly their understanding that they agreed.

10

vote.

11
12

We did not

We did not go around the room and go "Yay or nay?"


Q.

Well I am not asking now if there was a vote.

I am asking did Dr. Shehee say she agreed at the meeting?

13

A.

I do not remember that she said she didn't or

14

didn't [sic], but the way I posed the question was, to

15

the best of my recollection, "Is everybody okay with

16

this?

17

either by not objecting or saying yes -- and I couldn't

18

tell you around the room -- was yes.

19

that meeting thinking five people -- and both Chris Hoke

20

and Danny Staley will tell you the same.

21

Is everybody on board with this?"

Q.

All right.

And the answer,

But I walked out of

Now, let me just -- so we are

22

clear, at the meeting, did Dr. Davies, who I believe you

23

said was on by phone, is that correct?

24

A.

Right.

25

Q.

Did Dr. Davies say that she was agreed with

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sending out the "do drink" letter?


A.

In her deposition, she said she told me that

she did not -- she did not -- she told me "I don't agree

with sending the do not drink [sic].

-- she did not say that at that meeting.

Shehee, either one.

agree with this" at that meeting.

8
9

Neither did Dr.

Neither one said to me, "We don't

In fact, in the opposite, when posed the


question, "Is everyone on board with this?

10

understand, are you okay with this?"

11

either silence or "yes."

12

couldn't tell you who said what.

13

At that meeting

Q.

Do you

The answer was

And I don't remember -- I

Now, just so we are clear, between that

14

meeting and the mailing of the March 2016 "do drink"

15

letter, did either Dr. Shehee or Dr. Davies tell you they

16

objected to the letter being sent?

17

A.

I don't remember -- no.

I mean, if they did,

18

I don't remember it, because the letter was sent, like,

19

March -- now let me just -- let me clarify that.

20

didn't say they disagreed with the policy.

21

clarify that.

22

I am talking about the policy.

23

did disagree with parts of the letter.

24

answer that correctly.

25

disagreed with the policy.

They

Let me

They probably

So I need to

Neither of them told me they


I think they probably clearly

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had problems with the letter, which is a separate entity.

Q.

Okay.

Well, let's look at the letter.

A.

Okay.

That is two different things.

The

policy and the letter are two very different things.

if you told me they disagreed with parts of the letter, I

would agree with that.

7
8

Q.

And

So would that mean they objected to sending

out the letter that was sent out?

A.

No, they disagree -- no, I am sorry.

The way

10

the letter was sent out, they probably would have

11

disagreed with parts of it, yes.

12

the letter -- the way it was worded.

13

important to understand that the letter and the policy --

14

the letter is from many people, the policy is from five

15

people.

16

Q.

Okay.

But not the policy, but


But it is very

I am going to show you, please, Exhibit

17

276.

And is that the "do drink" letter we have been

18

talking about?

19

A.

Yes, sir.

20

Q.

Now, the first sentence says, "We have

21

withdrawn the do not drink usage recommendation because

22

we have determined your water is as safe to drink as

23

water in most cities and towns across the state and

24

country."

25

A.

Is that statement true?


Yes.

That was provided by DEQ.

And Megan, in

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her deposition, said that she disagreed with that

statement.

disagree with that statement.

Q.

And I believe that to be true, that she did

All right.

Now my question is, sitting here

today -- I am not asking you if DEQ provided the

information.

knowledge, sitting here today, is that a true

statement?

I am asking you, based on your own

A.

Yes.

10

Q.

The first sentence.

11

A.

Yes.

12

Q.

And what is your evidence that the well -- by

13

the way, this letter went to individual well owners,

14

correct?

15

A.

Uh-huh.

16

Q.

It is addressed to individual well owners?

17

A.

Uh-huh.

18

Q.

What is your evidence that each of these well

19

owners well water is as safe to drink as water in most

20

cities and towns across the state?

21

MR. ROSSER:

Objection to form.

22

MS. LeVEAUX:

Objection.

23

THE WITNESS:

Okay.

The first point would

24

be is that, again, if you look at vanadium -- the average

25

level of vanadium around the country is higher than our

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screening level of 0.3; that in studies, we give people

vanadium a million times the dose every day for six weeks

in diabetic studies.

in clinical trials that are approved by IRB's -- and I

have provided you with this article -- we give people a

million times the dose in a pill to take to treat you.

So we set a level of 0.3, and yet

So I would argue that the levels of vanadium

in our water, the levels of vanadium in their water, are

all safe.

10

EPA.

11
12

And that is why it is not regulated by the

BY MR. HOLLEMAN:
Q.

Let's focus for a minute on hexavalent

13

chromium.

What evidence do you have today that the water

14

in the wells of these well owners is as safe to drink as

15

water in most cities and towns across North Carolina?

16

MS. LeVEAUX:

Objection.

17

MR. ROBBINS:

Objection.

18

MR. ROSSER:

Object to the form.

19

THE WITNESS:

And the country.

20

BY MR. HOLLEMAN:

21
22
23

Q.

I am asking North Carolina first, because that

is what it says.
A.

Again, based on our level of .07, that the --

24

if you look at the baseline level that I am familiar with

25

and that DEQ provided, that that level in many of the --

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in most cities and towns is similar.

Now, there is a

cohort over 10 that we have now adjusted to, that we have

evolved to change that.

argue that that is true.

But for the other ones, I would

Q.

Well, let's look at that for a minute.

A.

All right.

Q.

What you did not say is that "We have

determined that the water in your well has hexavalent

chromium levels above our Health Screening Level."

10

You

didn't say that, did you?

11

A.

Well ---

12

Q.

That is not what this sentence says?

13

A.

No, it doesn't say that.

But, again, the

14

argument would be that those levels of water all around

15

the country -- I think the average level for hexavalent

16

chromium is about .1 all around the country.

17

majority of water in the country exceeds our Health

18

Screening Level.

19

Q.

So the

Well, if most -- let me ask you this question,

20

then.

Isn't it true that the water in most cities and

21

towns across the state has hexavalent chromium levels

22

lower than those of people who had received this letter?

23

MS. LeVEAUX:

Objection.

24

MR. ROBBINS:

Objection.

25

MR. BARKLEY:

Objection.

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MR. ROSSER:

Objection.

THE WITNESS:

There are many people who had

hexavalent chromiums higher than the .1, yes.

Yes.

BY MR. HOLLEMAN:

Q.

And would you agree that 1 part per billion of

hexavalent chromium in drinking water is less safe than

.07 parts per billion?

A.

said before.

Again, I am going to come back to, you know, what I


I think once you start getting into these

10

gradations of -- that you are trying to attach a level of

11

precision -- when you say to me, "Well, Dr. Williams, if

12

your level was .07, but the wells average was 3, and so

13

therefore you have increased their risk of some cancer"

14

-- I guess you are assuming stomach cancer -- "by this

15

much, making it unsafe," I don't think you can apply that

16

level of precision.

17

more qualitative.

It is not that quantitative.

It is

So ---

18

Q.

Do you think -- I am sorry, finish.

19

A.

I am sorry.

So I think for me to say, as

20

State Health Director, Well, you have got a level of 2

21

and yours is -- or yours is .2, excuse me -- or 2, and

22

yours is .07, that that clinically makes a huge

23

difference.

24

support that.

25

Q.

I don't think we have the evidence to

Well in that case, do you think you have the

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evidence to say that 2 is as safe as .07?

MS. LeVEAUX:

Objection.

MR. ROSSER:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

Yes, I think that, again, as

you are talking about "safe," I don't think you can say 2

is that much more unsafe than .07.

that level of expertise.

9
10
11

I don't think we have

Again, you are ---

BY MR. HOLLEMAN:
Q.

Does anyone -- do you know any toxicologist in

America who agrees with what you just said?

12

MR. ROSSER:

Objection.

13

THE WITNESS:

Well, I know there are 49

14

other states that have toxicologists ---

15
16

BY MR. HOLLEMAN:
Q.

No.

Listen to my question.

17

MR. ROSSER:

18

BY MR. HOLLEMAN:

19
20

Q.

Objection.

What you have just said is, you cannot say --

tell me if this is your statement.

21

A.

Right.

22

Q.

One cannot say that 2 parts per billion

23

hexavalent chromium is less safe or riskier than .07

24

parts per billion hexavalent chromium for cancer risk.

25

A.

Right.

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Is that what you are saying?

MR. ROSSER:

BY MR. HOLLEMAN:

Object to the form.

Q.

Is that what you are saying?

A.

What I am saying is clinically -- the key word

here is clinically -- that if you are looking at

modeling based on animal models, and you are looking at

it from a scientific standpoint, that would be true.

Q.

Okay.

10

A.

If you are looking at it clinically -- if a

11

patient came in and said, "Dr. Williams, my level of

12

hexavalent chromium -- and I am worried about gastric

13

cancer, which H. pylori causes 75 percent of it based on

14

what I know.

15

is 2.

16

drinking their water."

I don't want to drink my water because it

And a person down the street is .06, and they are

17

I would say we do not have, clinically, the

18

ability to differentiate between those two.

19

are worried about stomach cancer, that we really should

20

be much more concerned about you H. pylori status, if

21

that is what we are really aiming for here.

22
23

Q.

That if we

But in terms of science and toxicology, you

could say that 2 is less safe than .07?

24

MS. LeVEAUX:

Objection.

25

MR. ROBBINS:

Objection.

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BY MR. HOLLEMAN:

3
4
5

PAGE 106

Yes, sir.

Q.

Now, when -- did you write this letter, by the

A.

I -- I did the initial version.

way?
And then this

letter, which is different than the policy, had input

from DEQ -- numerous people in DEQ -- DPH, Legal,

Communications, and probably more.

9
10
11

Q.

Do you know if it was reviewed by the

Governor's Office?
A.

Yes, by the Communications Office.

I don't

12

know about the Governor's Office per se, but I kind of

13

make a distinction -- but I know it was reviewed by the

14

Communications Office.

15

Q.

Who in the Communications Office?

16

A.

Josh Ellis.

17

Q.

Do you know if anyone else looked at it before

18
19
20
21
22
23

it went out?
A.

You know, I don't.

some others may have.


Q.

I know that Josh did, and

I just wouldn't be privy to that.

Did you talk with him about the letter before

it went out?
A.

Yes.

I think that that would be a third

24

conversation.

I -- if I didn't talk to him, I talked to

25

Kendra, who talked to him.

And I just don't remember.

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think I did.
Q.

And what was the substance of the

conversation?
A.

This letter was modified numerous times by --

because it was coming from two departments, DEQ, DHHS.

The Governor's Communications Office weighed in, DPH

weighed in, DEQ weighed in.

different changes to the letter.

I can't remember all the

Q.

Did Josh recommend changes to the letter?

10

A.

Yes.

11

Q.

And what were they -- or what was the

12

substance of them, or the specifics of them if you

13

remember?

14
15

(Witness peruses document.)


A.

I would say the last four paragraphs look

16

exactly like what I wrote.

The first one looks like it

17

came from DEQ.

18

Q.

That is, the first paragraph?

19

A.

Yes, sir.

And I am -- and the second

20

paragraph looks like it came from DEQ.

21

meaning they pushed it forward and it got changed.

22

think the most accurate portrayal of this letter is, is

23

that many people weighed in on it.

24
25

Q.

When I say that,


But I

And do you remember the content or the

substance or the specifics of the changes that Josh had

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made?

A.

I don't.

I -- it was a tedious process in

that it would be written, it would go to DEQ.

come back from DEQ and then it would go to the Governor's

Communications Office and come back.

don't mean to be evasive, but exactly who weighed in

where, I am not sure.

8
9
10

Q.

It would

And each time -- I

And just to be clear, do you remember the

substance of any changes that came from the Governor's


Office?

11

A.

Well, I think part of my problem is I think

12

some things may have been changed, but they didn't make

13

it to the final copy of this letter, if I remember

14

correctly.

15

Q.

And what were those?

16

A.

Well, I just have the sense that at some point

17

in this letter, there were cities named.

I just have

18

this -- I just think I remember seeing some cities.

19

Q.

Do you remember which ones?

20

A.

For some reason, Rocky Mount weighs in my

21

mind.

I mean, I feel like I remember a version of this

22

letter that had cities in it, and it is not there.

23

Q.

But you did the first draft, is that correct?

24

A.

Yes, sir.

25

Q.

Did you write this first paragraph or was that

I did.

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added later by DEQ?


A.

I think that is my sentence, but it may have

been changed in some format.


Q.

Well, the sentence that finally came out, it

says, "We have withdrawn the do not drink Usage

Recommendation because we have determined your water is

as safe to drink as water in most cities and towns across

the state and country."

determine what the hexavalent chromium levels were in

Now, what did you do to

10

cities and towns across -- lets start with North

11

Carolina.

12

A.

Again, to reiterate your earlier point, that

13

language -- that data would have come from DEQ.

14

have started this sentence, but it may have changed to be

15

finished by them.

16

deliberately is something that I would do, "We have

17

withdrawn the do not drink recommendation," to get

18

right to the point about what we are doing.

19

here under oath, I just can't remember.

20

Q.

So I may

The fact that it starts very

But as I sit

Well, I guess my question is, what did you do

21

to determine that the well owners water is as safe to

22

drink as water in most cities and towns across North

23

Carolina?

24

MS. LeVEAUX:

Objection.

25

MR. ROBBINS:

Objection.

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THE WITNESS:

PAGE 110

Again, relying on DEQ for that

assessment.

3
4

5/18/16

BY MR. HOLLEMAN:
Q.

So you relied on what Mr. Reeder told you?

MR. ROSSER:

Objection.

MS. LeVEAUX:

Objection.

BY MR. HOLLEMAN:

Q.

Is that correct?

A.

As you look -- yes.

As you look across the

10

city and the state for -- talking about the comparison to

11

other levels, I relied on him.

12
13

Q.

Now did Dr. Davies object to this first

sentence?

14

A.

Yes, I think she did.

15

Q.

And what did she say to you?

16

A.

Because I think she has had the contention

17

that some of the cities that Tom cites, she thinks the

18

levels are different.

19
20
21
22

Q.

I believe that is correct.

And she thinks the levels are less for

hexavalent chromium?
A.

She thinks the municipal water is less than

for hexavalent chromium.

23

Q.

Have you checked to see if she is right?

24

A.

Again, I don't remember.

25

wasn't talking about in aggregate.

My sense was she


She wasn't talking

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about all across the country, all across the state.

think to your point earlier, she was saying for some of

the well owners and for some of the cities, that wouldn't

be true.

Q.

And did that raise a concern in your mind,

that it wouldn't be true for some of the well owners?

7
8

A.

Well, again, I would say that if you are

talking about vanadium ----

Q.

No, I am talking about hexavalent chromium.

10

A.

I am sorry.

We are talking about hexavalent

11

chromium.

12

me, that where Megan looks at population health, and she

13

looks at the .07 and the .15 and makes a differentiation,

14

as a clinician looking at the qualitative view, I would

15

just -- I would respectfully disagree with her.

16

Q.

I think I have answered that question, that to

When she raised this concern with you and

17

objected, did you then turn to look at what the actual

18

levels were in various cities in North Carolina?

19

A.

I did not.

20

Q.

Since then, have you looked at the level of

21

Again, I relied on DEQ.

hexavalent chromium in Sanford, North Carolina?

22

A.

Yes, I have.

23

Q.

And what is it?

24

A.

It is lower -- it is lower than what is in the

25

wells.

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Q.

Okay.

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PAGE 112

Have you looked at the level of

contamination in Salisbury, North Carolina, for

hexavalent chromium?

A.

In the municipal water?

Q.

Yes.

A.

Yes.

Q.

And what is that level?

A.

It is lower than the adjacent wells.

Q.

And how -- what is the level, do you remember?

10

A.

I don't remember.

11

Q.

Is it below your Health Screening Level?

12

A.

I -- I just don't remember.

13

Q.

Do you have any idea of what the level is?

14

A.

No, sir.

15

Q.

In Salisbury?

16

A.

Right.

17

Q.

Hold on just a minute.

It is just lower.

Let me show you what

18

has been marked Exhibit 278.

And this is the 2013

19

Drinking Water Quality Report for the town of Salisbury's

20

municipal water supply.

21

the last blue box, you will see it has reports of the

22

hexavalent chromium levels.

Look on the back, the next to

23

A.

Yes, sir.

24

Q.

And they are all below .1, is that correct?

25

(Witness peruses document.)

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A.

You are referring here (indicating)?

Q.

Yes, the report.

A.

Under MRT?

Q.

Yes.

A.

All right.

PAGE 113

So ---

(Witness peruses document.)

Q.

There is one that is .13; that is the maximum?

A.

Right, right.

Q.

But all the others are under .1, is that

10

correct?

11

A.

Well, there is not one for there (indicating).

12

Q.

That is a non-detect.

13

A.

Right.

14

Q.

In other words, they didn't find any.

15

A.

Right.

That is what I was asking.

So, if you are talking about the entry

16

point, the answer is correct.

If you are talking about

17

MRT, it is right around .13 -- .091.

18

Q.

Or .077?

19

A.

Yes, sir.

20

Q.

And are you aware of many of the people who

21

received "do not drink" letters and "do drink" letters

22

live at the Buck site, which is in Salisbury?

23

A.

Yes, sir.

24

Q.

Do you think it would have been appropriate to

25

Yes, sir.

inform them in the "do drink" letter of the low levels of

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hexavalent chromium in the public drinking water supply

in Salisbury?

MR. ROBBINS:

Objection.

MR. ROSSER:

Objection to form.

THE WITNESS:

No, sir.

Again, we were

looking in aggregate.

10, we are addressing that now by issuing "do not drink"

letters, if they don't already have them.

9
10

And again, for anybody who is over

BY MR. HOLLEMAN:
Q.

But, now, the people who -- the well owner who

11

received this letter, he or she or their family don't

12

drink water in the aggregate, they drink it locally; is

13

that correct?

14

A.

Right, correct.

15

Q.

So let me ask you again.

To be most helpful

16

and to provide the best information to the local well

17

owner in and around the Buck site, do you believe now it

18

would have been better to list the actual hexavalent

19

chromium level in the Salisbury drinking water supply?

20

MS. LeVEAUX:

Objection.

21

MR. ROBBINS:

Objection.

22

MR. ROSSER:

Objection.

23

THE WITNESS:

No, sir.

24

BY MR. HOLLEMAN:

25

Q.

Now, the .07 Health Screening Level -- that is

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6

PAGE 115

for a healthy adult, is that correct?

2
3

5/18/16

A.

Drinking two liters a day over 70 years, yes,

Q.

So it is not for a pregnant woman or a small

sir.

child, is that correct?


A.

Well, again, I don't know that people

differentiate between the levels.

Again, if you look at

stomach cancer, which I guess is what we are concerned

about, again, the average age for somebody with stomach

10

cancer is in their 50's or 60's.

11

concerned about their H. pylori status than their

12

hexavalent chromium status, if that is what we are

13

looking at.

14

Q.

And we would be more

Let me ask the question again.

This is not a

15

Health Screening Level for a pregnant woman or a small

16

child, it is for an adult exposure only; is that correct?

17

A.

Correct.

18

Q.

And you would expect for a pregnant woman or a

19

small child, the Health Screening Level would be lower

20

than .07, would you not?

21

MS. LeVEAUX:

Objection.

22

MR. ROBBINS:

Objection.

23

MR. ROSSER:

Objection.

24

THE WITNESS:

Yes, sir.

25

BY MR. HOLLEMAN:

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1

Q.

5/18/16

PAGE 116

Now, before you sent this letter out to

families and well owners, did you determine whether any

households had pregnant women or small children in them?

A.

No, sir.

But, again, when we look at the

safety, we would think that the small discrepancy in that

when you look at what you are looking for.

vanadium.

vanadium, and we are now concerned about pregnant women

and small children, I do not know of any Federal or State

So let's take

So if we are concerned about the 0.3 in

10

guidance anywhere in the country that regulates the

11

amount of vanadium in the water to 0.3.

12

And if you look at hexavalent chromium,

13

whether it is for small children or pregnant women, I

14

don't know of any state in the country or the federal

15

government that regulates hexavalent chromium for

16

pregnant women or small children, other than California,

17

which includes them in the level of 10.

18

what our peers do around the country -- and we think

19

peers are important -- we are aligned with them.

20

what they do.

21
22

Q.

So as we look at

We do

But you had determined a Health Screening

Level of .07, which is still in effect ---

23

A.

Correct.

24

Q.

--- for an adult?

25

A.

Right.

For which we made a recommendation.

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1

Q.

5/18/16

PAGE 117

For which you have made a recommendation.

And

yet you didn't consider making a new health screening

determination for pregnant women or children before you

sent this letter out?

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

MR. ROSSER:

Object to the form.

THE WITNESS:

No.

And again, I think as we,

you know, align with the other 49 states and the Federal

10

Government who have been looking at hexavalent chromium

11

for at least 25 years, if not intently eight years, nor

12

have they.

13
14
15

BY MR. HOLLEMAN:
Q.

And you think the fact someone else hasn't

done it is a reason for you not to do it?

16

MR. ROBBINS:

Objection.

17

THE WITNESS:

Absolutely.

We always look at

18

what our peers do.

19

as a similar physician in a similar community in a

20

similar setting, what they do.

21

for toxicologists and epidemiologists and State Health

22

Directors we do the same thing.

23

I mean, in medicine, we are defined

And I would argue that

As a matter of fact, ASTHO, the Association of

24

State and Territorial Health Organization, came out in

25

late March and said that as a rule, the EPA should be

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RANDALL W. WILLIAMS, M.D.

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setting all of these standards except for in emergency

situations.

3
4

And we support that.

BY MR. HOLLEMAN:
Q.

So the standard you just recited for doctors

is the one that is used in medical malpractice, is that

correct?

A.

That is absolutely correct.

Q.

So were you using your medical malpractice

9
10

experience as an expert witness when you drafted this


letter?

11

MR. ROBBINS:

Objection.

12

THE WITNESS:

No.

Again, certainly, the

13

idea is that in any scientific endeavor, we always look

14

at what our peers are doing.

15

there are only 240 people that I know of that are held to

16

the level of vanadium and hexavalent chromium that we

17

hold these well owners to.

18

is, like with Zika virus, is that if Tennessee tomorrow

19

all of a sudden decides that they are going to tell all

20

women they shouldn't get pregnant, and that they are

21

going to say that that is their recommendation, I would

22

hope that after six months, if nobody else is doing that,

23

they would revisit what they had done.

24
25

MR. HOLLEMAN:

And in the United States,

So the example I often use

Could we mark this as an

exhibit, please?

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RANDALL W. WILLIAMS, M.D.

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PAGE 119

(PLAINTIFF-INTERVENORS EXHIBIT 300

WAS MARKED FOR IDENTIFICATION.)

BY MR. HOLLEMAN:

Q.

This is Exhibit 300.

What I am showing you is

a document produced to us by HHS.

MS. LeVEAUX:

Excuse me, could we get a

MR. HOLLEMAN:

Sorry.

BY MR. HOLLEMAN:

copy?

10

Q.

Have you seen this document before?

11

A.

Yes, sir.

12

Q.

And what is it?

13

A.

It is a Cancer Slope Curve for hexavalent

14

chromium.

15

Q.

And this was prepared by HHS?

16

A.

Yes, sir.

17

Q.

And the Cancer Slope Curve that was used by

18

HHS was reviewed and approved by the U.S. Center for

19

Disease Control, is that correct?

20

A.

Yes, they --

21

MR. ROSSER:

Objection.

22

THE WITNESS:

--- they looked at our

23

methodology to make sure we had done it correctly.

24

they said we had.

25

And

BY MR. HOLLEMAN:

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RANDALL W. WILLIAMS, M.D.


1

Q.

5/18/16

PAGE 120

And this, if you see, it recites -- it lays

out that at 0.7 parts per billion, this risk increases to

1 in a hundred thousand lifetime increased cancer risk;

is that correct?

VOICE:

Objection.

THE WITNESS:

According to their modeling,

yes, sir.

8
9
10

BY MR. HOLLEMAN:
Q.

And at 7 parts per billion one in ten thousand

lifetime cancer risk, is that right?

11

A.

According to their modeling, yes.

12

Q.

And at 70 parts per billion, one in a thousand

13

lifetime increased cancer risk, is that right?

14

A.

Yes, sir.

15

Q.

Did you consider whether it would be

16

appropriate to let the well owners have this information

17

when you sent this letter out about the increased risk,

18

as the amount of hexavalent chromium increases in their

19

well water?

20

MR. LeVEAUX:

Objection.

21

MR. ROBBINS:

Objection.

22

MR. ROSSER:

Objection.

23

THE WITNESS:

Again, as a policy maker, it

24

is my job to take in all of the evidence.

And as we

25

looked at this and looked at this modeling and the

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science it was based on, while we thought it was

appropriate to tell them the risk that CAMA set at 1 in a

million.

questions, please call us if your level is higher."

-- we certainly gave them the opportunity, would have

encouraged them to respond as they looked at doing things

to mitigate that risk if they chose to.

one in ten thousand would be something they would want to

act on and filter; other people wouldn't.

10

And in the letters, they say, "If you have any


That

For some people,

But again, as a broad public health policy

11

perspective, we also have a duty not to alarm the general

12

population.

13

hexavalent chromium level -- we got an e-mail yesterday

14

from Greensboro.

15

city water supply.

16

What do they do about getting rid of the cancer causing

17

water in their municipal water supply?

18

not unduly, inappropriately, raise alarm.

19

when we get to that level, we have done that.

20
21
22

And when we hear statements that your

Their level is .11 in their municipal


And they have heard it causes cancer.

I have a duty to
And I think

BY MR. HOLLEMAN:
Q.

Well, I understand you want to look at all of

the evidence.

23

A.

Yes, sir.

24

Q.

Do you think other adult citizens of North

25

Carolina who are drinking the water should also receive

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PAGE 122

all of the information so they can reach their

conclusions?

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

MR. ROSSER:

Objection.

MR. BARKLEY:

Objection.

THE WITNESS:

And we are more than happy --

like we said in the letter, we are more than happy to

share that, when they got the letter, that said that if

10

they had questions they could call back and -- and answer

11

those.

12
13

BY MR. HOLLEMAN:
Q.

So you would provide to a citizen or a well

14

owner this information about the increasing risk if they

15

asked for it?

16

A.

Absolutely.

17

Q.

But you relied on them to know about and ask

18

you about a Cancer Slope and an increasing risk factor,

19

is that right?

20

MR. ROSSER:

Objection.

21

MR. ROBBINS:

Objection.

22

THE WITNESS:

Again, I think that one of our

23

challenges is to educate without creating so much

24

information that we risk raising alarm.

25

if somebody called me today and said, "Well Dr. Williams,

So, again, even

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PAGE 123

according to my number, I am one in a thousand," I hope

that we would thoroughly explain to them -- what were

they concerned about?

cancer are you worried about?

the letter."

information, we would most likely think that would be

stomach cancer.

cancers are caused by H. pylori.

concerned about that, let's approach it that way.

10

Was it risk of cancer?

What

"I don't know, you sent

Well, I would say, based on our

And that we think 75 percent of stomach


And so if we are

And then they say, "Well, if it is not that,

11

if I am just worried about it," then we would say, Well,

12

according to animal modeling, we do think that this is a

13

carcinogen in humans.

14

behaviors.

15
16
17

You may want to do mitigating

BY MR. HOLLEMAN:
Q.

Now, looking again at the first -- oh, by the

way, do you know who wrote Exhibit 300?

18

A.

I do not.

19

Q.

But you know it was prepared at HHS?

20

A.

Well, either there or DEQ.

21
22

when it was prepared.


Q.

Now, when Dr. Davies -- well, let me back up

23

for a minute.

24

Director before you came in?

25

I wasn't there

A.

Was Dr. Davies the Acting State Health

Yes.

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1

Q.

5/18/16

PAGE 124

Now, since you had not had any experience with

toxicology or hexavalent chromium before you came to the

department, when Dr. Davies expressed an objection to the

very first sentence of the "do drink" letter, did you

consider whether your judgment should override hers?

MR. ROSSER:

Objection.

MS. LeVEAUX:

Objection.

MR. ROBBINS:

Objection.

THE WITNESS:

Well, again, let me just

10

explain; it wasn't just my judgment.

11

people involved in that.

12

tell you there is that California sets their Health

13

Protective Level at .02.

14

huge difference.

15

these initial letters went out a year and a half ago,

16

that the Health Protective Level went out.

17

normally do in both situations is we take the MCL from

18

the EPA, which has considered the practical aspects of

19

it.

20

There were a lot of

But, you know, what I would

Their MCL is 10.

That is a

What I think happened here is that when

And what we

What happened here is we didn't do that.

We

21

just kind of went with the .02, so to speak, from -- that

22

you see in California, and kind of skipped the part that

23

got to 10.

24

Health Protective Level, just like California has .02 for

25

people who want to look at it.

So I think where we stand now is we have the

What we are hoping from

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PAGE 125

the EPA, being aligned with ASTHO, which says you really

ought to have one set of standards, is that they will

come out and give us guidance on what our MCL should be

-- not our Health Protective Level, but our MCL.

BY MR. HOLLEMAN:

6
7

Q.
Secretary?

Dr. Williams, when did you become the Deputy


What was your date?

A.

July 1st.

Q.

July 1st?

10

A.

Uh-huh.

11

Q.

Before you came on July 1 to HHS, had you ever

12

worked as a public health professional before?

13

A.

I was on the Board of -- North Carolina Board

14

of Public Health for eight years, and on the Wake County

15

Health Department, but not had been -- was not employed,

16

no.

17

Q.

You were a citizen Board member, right?

18

A.

Yes, sir.

19

Q.

But you had never worked as a public health

20

professional, is that correct?

21

A.

That is correct.

22

Q.

Had you ever had any experience before July 1

23

with making any decisions concerning public drinking

24

water supplies?

25

A.

On the -- yes.

We voted on the Board of

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Public Health for eight years, all the time, on water.

So, yes.

Q.

So you voted in your citizen appointment?

A.

Yes, sir.

Q.

As a committee member, you passed it?

A.

Yes, sir

Q.

But did you ever work in the field of Public

Drinking Water supplies before July 1?

A.

No, sir.

10

Q.

And before July 1 of 2015, had you ever

11

administered a government agency of any kind?

12

A.

No, sir.

13

Q.

And before July 1 of 2015, had you ever

14
15

supervised more than 15 people?


A.

No.

But, again, worked very closely with

16

Danny Staley, who was already there.

17

worked kind of hand in glove.

18