Guest Blog: Flint — No Longer Out of Sight, Out of Mind

It seems the whole country is talking about Flint. There is justifiable outrage about the process, the horrible impact on the community, and the failures to detect and swiftly respond to the Flint water crisis.

It seems the whole country is talking about Flint. There is justifiable outrage about the process, the horrible impact on the community, and the failures to detect and swiftly respond to the Flint water crisis. There has been a lot of finger pointing about who is responsible, but little discussion about preventing this from happening again. Here are seven questions people will, or should be, thinking about as the initial furor dies down:

1. Was using Flint River water a bad idea or a good idea that went horribly wrong?  The Flint water crisis was a failure of execution. The Flint River was known to be a poor quality water source but that doesn’t mean that the decision to switch to the river was wrong from the start. Without getting too far down the blame game — it is clear that in June 2013 (almost nine months before the water switch), the then-emergency manager hired an engineering firm to figure out how to manage the Flint River water. There has been, to my knowledge, zero discussion of what that firm — Lockwood, Andrews & Newnam — did or what they were qualified to do. Had they done their job properly and advised the city and emergency manager properly, either Flint would’ve not made the switch or would’ve treated the water properly. I expect that there will eventually be hearings about this.

2. Who should be preventing such problems?  In short, the EPA, the MDEQ, the Michigan Department of Public Health and the local government. Snyder’s own task force concluded that the MDEQ dropped the ball — stating that there was: (1) a culture of minimalist “technical compliance” that failed to focus on the intent of the laws MDEQ was charged to implement; (2) a failure to respond in both substance and tone to the public’s concerns; (3) a failure to understand the federal lead and copper rule, particularly focusing on optimizing corrosion control — reportedly MDEQ told Flint that treatment for corrosion control was not needed until after two six-month monitoring periods had been completed.

Allegations that MDEQ dropped bad results from its water testing seem to reflect the governor’s task force’s concerns and, along with allegations that the Michigan Health Department hid lead health data, may bring about criminal charges. Reports that both the Michigan Attorney General Bill Schuette and the U.S. Justice Department are investigating may be leading some to have sleepless nights.

The EPA also bears responsibility. They recently (and almost certainly in response to Flint) released a memorandum clarifying the requirement of corrosion control for communities with 50,000 or more residents. Larger still is the assertion that EPA staff knew before June 2015 that Flint wasn’t using required corrosion control and that a staff memo on the topic was buried. On Jan. 21, EPA issued a fairly scathing letter and emergency order to the state and city and so, “working together” seems a bit far off.

Both the state of Michigan and the EPA have established task forces and working groups looking at the causes of, and responses to, the Flint situation. My question is will there be correction at the agencies and better communication between them or will nothing change?

3. What about the rest of the State? The Flint situation has further weakened the public’s trust in government’s ability to protect them. Will this lead to people in Detroit, Lansing, Grand Rapid, and elsewhere to question if their water systems are protective of human health? Given that the nascent Great Lakes Water Authority (which serves almost half the state’s residents) is just getting off the ground and its system has parts dating back to the 1800s, will there be additional testing and assurances given that the tap water we all thought was safe really is? The most recent report available from Detroit Water and Sewerage Department is from 2014 and reflects that Detroit’s water has no more than “acceptable” amounts of lead — at least at taps they evaluated.

4. How to improve governmental transparency?  Gov. Snyder released 274 pages of emails and, for the most part, my review reflects that the governor was out of the loop until late September 2015, and then he began to mobilize the state to respond. Why it took until January for him to issue a disaster proclamation and seek federal aid is not clear. Snyder could have stonewalled on his emails but in the face of public pressure, he released them. Some have made hay out of the fact that he did not release his earlier emails — when the decision to switch the water source was made. I doubt there’s anything there as the governor’s style appears to be hands-off, but I agree that he should release those as well. One thing that should come out of this is an amendment to Michigan’s Freedom of Information Act to remove the blanket exemption from the governor and his aides. In the interest of good government, the inner workings of the highest levels of the administration should be open to the public as much as the inner workings of any of the state’s agencies. Michigan is only one of two states to have such a blanket exemption and I think it’s time for that to change.

5. Will Michigan change the Emergency Manager law? Many on the left have castigated the governor for the emergency manager law he championed, arguing that it is unfair and improperly denies the public their voting rights and right to elected representation. While I am not going to debate that here, it appears that the Flint Emergency Managers (there were several of them during the time in question — itself a problem) operated in an informational vacuum. A March 2014 letter from the emergency manager reflects a decision to use the Flint River rather than Detroit Water and appears to have been made without public consultation or comment. I can see calls to change the law here based on Flint’s experience. Certainly, better oversight of emergency managers is a must.

6. What about the infrastructure?  Snyder announced that he is convening a commission to study Michigan’s infrastructure needs, threats, opportunities, and costs. The commission will be charged with recommending action items and investments to protect our health and well-being. Top priorities will include: water and sewer infrastructure, energy and electrical grids, broadband modernization, and upgrading the aging Soo Locks. The commission will lay the groundwork for state and municipal actions to take place. Bluntly, this is long overdue and, candidly, given how poorly Michigan’s recent road funding process went, I’m dubious about whether this will make a difference with our state Legislature. This needs to be the state government’s No. 1 priority. However, given the political damage Gov. Snyder has suffered, it seems that a program of major infrastructure investment is a long shot — necessary but unlikely. Will our “fix on failure” approach continue? Given that estimates to fix the Flint water system run to $60 million (or more), and that upgrading the Detroit/Great Lakes system may run into the hundreds of millions, if not billions, do we have the intestinal fortitude to invest in the future and in our health and that of our children? Do we need to replace the lead pipes or is it acceptable to rely on corrosion control treatment?

7. Will anyone going to jail? Many people have said “this is criminal,” and under federal and state law, prosecutors will be looking to see if there was “reckless disregard of the consequences,” “gross negligence,” or an “intentional failure to obtain or follow proper regulatory approval or direction” which may lead to possible criminal charges. The failure to use corrosion control seems a likely focal point as it might satisfy one or more of the above standards — but the facts still need to come out.  It seems that the strongest argument for criminal charges may be the altering of reports or data, covering up the lead results, or obstructing the investigation. Certainly, civil lawsuits will abound (and have begun) and civil penalties may be imposed but, generally, making a mistake, even one of this gigantic magnitude with these horrendous consequences, is unlikely to support a criminal conviction. That’s why we have ballot boxes.

Arthur Siegal is the chair of the Environmental/Energy Practice Group of the law firm of Jaffe Raitt Heuer & Weiss PC in Southfield and is a regular contributor to DBusiness Daily News.