How EPA ducked emergency protection for Flint residents as lead levels rose

REUTERS/Rebecca Cook
EPA Administrator Gina McCarthy has consistently taken the position that her agency was so slow to act because they were repeatedly misled, obstructed and even “strong-armed” by state officials, including Gov. Rick Snyder.

The U.S. Environmental Protection Agency’s Midwest office had clear information about the lead poisoning of Flint residents “at least” as early as June 2015, according to a new EPA internal review, but failed to issue the emergency protective order that federal law at least permits and probably requires.

After seven more months of foot-dragging by Region 5 officials, who wrongly asserted that state actions in Michigan precluded EPA intervention, the agency’s Washington headquarters finally issued the emergency directive that state officials treat the Flint situation as a major public health threat.

By then, you could say, the cows had already left the barn: The city had been declared a disaster area by Michigan’s governor and the White House, the city had switched back to Detroit water supplies, and an array of criminal investigations and civil litigation was in process.

In the judgment of the Detroit Free Press, which ought to know, last Thursday’s report by the EPA Office of Inspector General (OIG) constitutes “the harshest official rebuke by a federal agency to date of the EPA’s response to the lead contamination crisis, amid ongoing civil and criminal investigations.”

Certainly the timetable is damning, as is the discussion of Region V’s intransigent assertion that its hands were tied, even as Washington was advising otherwise. But I’ve looked hard for the language of rebuke and conclude that, if the Freep’s assessment is correct, then no other authority has sent EPA anything less kindly than a sympathy card.

Though it’s labeled a “Management Alert,” in red type no less, about the strongest judgment in this 16-page report is that situations like Flint “should generate a greater sense of urgency.” You think?

Naturally there are recommendations for reform, including more staff training and a rewrite  of already clear guidelines to make them, I suppose, slightly clearer.

All of this ought to concern people across the country who have looked at the mess in Flint, considered the headlines about all the other troubled public water systems, and thought: Well, my city water works seems to be doing a pretty good job, and oversight at the state level appears pretty competent — and in any case, if things really got bad the EPA would surely step in.

People, think again.

EPA Administrator Gina McCarthy has consistently taken the position that her agency was so slow to act because they were repeatedly misled, obstructed and even “strong-armed”  by state officials, including Gov. Rick Snyder.

And in response to last week’s report, EPA spokesman Monica Lee continued to assert that “EPA issued an order to the City of Flint and the State of Michigan as soon as it became apparent that the city and state were failing to address the serious problems with the Flint drinking water system.”

A whistleblower ignored

What we might consider the “smoking gun” in the OIG narrative is a June 24, 2015, report on the Flint situation by Region 5’s regulations manager, Miguel Del Toral, who has been cast as something of a whistleblower in the Chicago offices.

The OIG found that Del Toral’s report clearly established two necessary grounds for the EPA to exercise its discretionary authority and issue an emergency order: that drinking water was contaminated to a degree that presents “imminent and substantial endangerment to human health,” and that actions by state and local authorities were insufficient to protect the public.

The OIG report also references other, earlier developments that gave clear indications of problems that followed Flint’s decision, in April 2014, to stop buying Detroit water and instead draw Flint River water through its own, long-mothballed treatment plant.

There were complaints from the beginning about strange colors and odors. By February 2015, some test samples showed elevated lead levels. Two months later, EPA was informed that Flint had not added the federally required anticorrosion treatments to keep the water from leaching lead out of old supply lines.

Although it’s not mentioned in the report, General Motors had announced in October 2014 that it was halting use of Flint River water because the stuff was corroding engine parts.

Nevertheless, the OIG found, Region 5 officials insisted that a pattern of inaction by Michigan officials constituted the kind of active, effective response that legally precluded federal intervention. That insistence continued after the Del Toral report was submitted — and leaked to the press — and even after a September 2015 meeting in Washington at which enforcement officials urged the regional office to act.

Between Del Toral’s report and McCarthy’s decision to issue an emergency order, last Jan. 21, these additional events had occurred:

  • In September, researchers from Virginia Tech had established that very high lead levels were present in homes all over Flint, a medical center reported test results showing high blood lead levels in children, and the city issued a lead advisory to residents.
  • In October, the city announced plans to switch back to Detroit water.
  • In December, a task force investigating official responses to the problem had issued a preliminary report spotlighting inaction by the Michigan Department of Environmental Quality, whose director and chief spokesman resign; Flint’s mayor declares a state of emergency.
  • In January, both Snyder and President Obama declare a state of emergency over the health threats.

Consistent inaction

Given this extraordinary series of events and warnings, and all the attendant publicity Flint’s problems received, you might wonder if something unusual happened here to keep the EPA from acting in normal enforcement fashion.

The answer would seem to be absolutely no. What follows is a particularly chilling excerpt from the OIG report on exactly that point.

(First, however, some translation of nomenclature: SDWA is the Safe Drinking Water Act, enacted by Congress in 1974;  “Section 1431” is its portion governing EPA’s authority to order emergency protections of public health; “primacy” refers to the relationship in which most states — including Minnesota — exercise authority delegated by EPA to enforce the SDWA and other regulations, as long as their practices are as stringent as EPA’s. Which, as this report shows, is not always a high hurdle to clear.)

Our analysis of the publicly available data on SDWA Section 1431 actions taken by EPA regions prior to the Flint incident shows that it is rare for a region to issue an emergency order to a municipality in a state with primacy.

OIG analysis showed that the vast majority of the SDWA Section 1431 emergency orders taken by EPA occurred in Wyoming and in Indian country, where the EPA regions directly implement SDWA and there is no “state” entity to consider.

Based on the publicly available data, the majority of Section 1431 emergency orders issued by the EPA were to businesses and federal facilities.

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The full OIG report, “Drinking Water Contamination in Flint, Michigan, Demonstrates need to Clarify EPA Authority to Issue Emergency Orders to Protect the Public,” can be read and downloaded here.

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