Vermont Law Top 10 Environmental Watch List 2017

Lead, Water and Injustice in Flint and Beyond

Summary:
The highly publicized situation in Flint, Mich., has revealed significant gaps in the federal and state programs designed to ensure that United States citizens have access to safe drinking water. The journey of this misguided cost-saving initiative from a local story into national news reflects a growing awareness by the public that we cannot take clean drinking water for granted. Federal, state and local officials have found themselves at the center of a controversy in which the media, elected officials and the courts are attempting to determine who is responsible for significant lead contamination in the drinking water consumed by the residents of an economically challenged and racially diverse community. This controversy is not confined to Flint, or Michigan, but instead reflects insufficient regulatory attention, a lack of funding for maintaining drinking water infrastructure, and inadequate public policy tools for responding to emerging risks to public drinking water supplies.

In April 2014, motivated by a desire to reduce the cost of providing drinking water to its citizens, city officials in Flint, Mich., switched the source of the city’s water supply. Instead of drawing its water from the Detroit public water supply, with its source in Lake Huron, the city used water from the Flint River during a transition to a new water supplier. Almost immediately after the change, citizens began to complain. Yet, it was not until October 2015 that the city returned to the original Detroit public water system for its water supply. Even then, lead levels remained elevated due to the loss of a protective coating inside the water system pipes resulting from the switch. Over the course of the shift in water supplies, blood-lead levels in Flint children doubled.[1]

The Flint River

Flint River, Flint, Mich. Photo: Adobe Stock

This result could have been avoided. The State of Michigan established a task force that painstakingly reviewed the background and facts leading up to the discovery of high lead levels in Flint’s water supply, concluding that the situation was the result of local and state government failures and was a case of “environmental injustice.”[2] Among many other red flags that local and state officials should have heeded, a study by Virginia Tech researchers revealed elevated lead levels as part of a study of hundreds of homes,[3] levels well above the regulatory action level of 15 parts per billion.[4] Prompted by delays by local and state officials, the Environmental Protection Agency (EPA) issued an emergency order to address the Flint drinking water problems in January 2016, updated in November 2016.[5]

Public health research has demonstrated that there is no safe level of lead in drinking water.[6] Even 5 parts per billion is a cause for concern.[7] Lead has the potential to harm almost every organ and system in the body,[8] and children, in particular, are at risk of experiencing behavioral and learning problems, hyperactivity, slowed growth, and anemia as a result of lead exposure.[9]

The need to regulate lead levels in drinking water was, for all of these reasons, called out for special treatment in the form of a specific rule promulgated by the EPA known as the “Lead and Copper Rule.”[10] An interim guidance document related to this rule and issued in 2008 specifically addressed the need for public water system operators to address corrosion control issues in distribution systems.[11]

Under the federal Safe Drinking Water Act, Congress granted the EPA the authority to oversee the regulation of contaminants in drinking water.[12] The EPA sets national standards known as “maximum contaminant levels,” and oversees state drinking water programs.[13] States, including Michigan, have “primacy,”[14] or primary responsibility, for implementing the Safe Drinking Water Act and for making sure that public systems, like the one operated by the City of Flint, meet minimum national standards.[15] If states are not doing their job, the EPA is supposed to intervene through taking enforcement action or issuing emergency orders.[16]

Given this framework, in which states are primarily responsible for implementing drinking water standards but the EPA has the ultimate authority, a relevant question is which level of government bears responsibility for the Flint water woes. This debate was taken up by Michigan Gov. Rick Snyder and EPA Administrator Gina McCarthy, who have publicly sparred over the EPA’s role.[17] A task force appointed by the governor found the Michigan Department of Environmental Quality (DEQ) largely to blame.[18] On the other hand, the EPA inspector general found that the EPA could have acted much sooner to issue an emergency order.[19] The EPA and Michigan DEQ are both engaged in efforts to respond to these criticisms.[20]

Unwilling to let the executive branch proceed alone, a Michigan joint legislative committee issued a report with a range of proposals such as improving oversight and accountability for state agencies, and increasing investments in drinking water systems.[21] The United States Congress has taken up the issue as well, holding oversight hearings that have garnered national media attention, with legislators casting blame widely across a range of local, state and federal officials.[22]

The courts are also playing a role in this story with numerous pending cases related to the lead contamination of the Flint drinking water system. A sampling of ongoing litigation includes civil environmental and civil rights cases filed against federal and state officials by citizen groups and nonprofit organizations, criminal charges filed against Michigan state employees by the Michigan attorney general, and numerous class action lawsuits against state and local officials.[23]

The crisis in Flint raises questions about the larger challenges associated with ensuring that the public has access to clean drinking water nationwide, including environmental justice, a long-standing failure to invest in drinking water infrastructure, and gaps in the regulatory system. As noted in the State of Michigan Flint Water Advisory Task Force report, the “Flint residents, who are majority Black or African American and among the most impoverished of any metropolitan area in the United States, did not enjoy the same degree of protection from environmental and health hazards as that provided to other communities.”[24]

Further, while Congress authorized federal funds to assist the city in efforts to reduce lead contamination,[25] this effort is a narrow stopgap measure insufficient to address the challenges faced by drinking water system operators. [26] Finally, many other contaminants may pose a risk to drinking water beyond lead, including both contaminants already regulated, and a long list of toxic chemicals not regulated at all.[27]

Whether the Flint drinking water crisis happened because of gaps in our regulations, lack of enforcement, inadequate infrastructure funding, or environmental injustice, the problems experienced by the citizens of Flint are not isolated and will be repeated in communities across the country in the absence of strong leadership from federal and state officials. The flurry of activity by all three branches of government at both the state and federal level shows promise but it will take a sustained effort to achieve change, in Flint and beyond.

[1] Lead-Laced Water in Flint: A Step-by-Step Look at the Makings of a Crisis, npr (April, 20, 2016) http://www.npr.org/sections/thetwo-way/2016/04/20/465545378/lead-laced-water-in-flint-a-step-by-step-look-at-the-makings-of-a-crisis

[2] Final Report, Flint Water Advisory Task Force (March 2016) https://www.michigan.gov/documents/snyder/FWATF_FINAL_REPORT_21March2016_517805_7.pdf.

[3] Lead-Laced Water in Flint; Lead Results From Tap Water Sampling in Flint, MI, Rebekah Martin, Min Tang, Anurag Mantha, Siddhartha Roy (Dec. 1, 2015) http://flintwaterstudy.org/2015/12/complete-dataset-lead-results-in-tap-water-for-271-flint-samples/; Christopher Ingraham, This is How Toxic Flint’s Water Really Is, The Washington Post (January 15, 2016) https://www.washingtonpost.com/news/wonk/wp/2016/01/15/this-is-how-toxic-flints-water-really-is/

[4] 40 CFR Part 141, Subpart I; see also https://www.epa.gov/dwreginfo/lead-and-copper-rule.

[5] Safe Drinking Water Act Emergency Order for Flint, MI, Envt’l Prot Agency (Jan. 21, 2016) https://www.epa.gov/flint/epa-safe-drinking-water-act-emergency-order; Amendment to Safe Drinking Water Act Emergency Order for Flint, MI, Envt’l Prot Agency (Nov. 17, 2016)   https://www.epa.gov/flint/amendment-epa-safe-drinking-water-act-emergency-order.

[6] About Lead in Drinking Water, Centers for Disease Control https://www.cdc.gov/nceh/lead/leadinwater/.

[7] Id; see also Christopher Ingraham, This is How Toxic Flint’s Water Really Is, The Washington Post, (January 15, 2016) https://www.washingtonpost.com/news/wonk/wp/2016/01/15/this-is-how-toxic-flints-water-really-is/

[8] Learn About Lead, Envt’l Prot. Agency (last updated Sept. 8, 2016) https://www.epa.gov/lead/learn-about-lead#effects

[9] Learn About Lead, Envt’l Prot. Agency (last updated Sept. 8, 2016) https://www.epa.gov/lead/learn-about-lead#effects

[10] 40 CFR Part 141, Subpart I; see also https://www.epa.gov/dwreginfo/lead-and-copper-rule.

[11] Lead and Copper Rule Short Term Revisions Implementation Guidance Final, Envt’l Prot. Agency (June 2008) https://www.epa.gov/dwreginfo/lead-and-copper-rule-compliance-help-primacy-agencies.

[12] 42 U.S.C. §300f et. seq., see also, Safe Drinking Water Act (SDWA), Envt’l Prot. Agency, https://www.epa.gov/sdwa.

[13] Id.

[14] 40 C.F.R. Part 142, Subpart B; see also Primacy Enforcement Responsibility for Public Water Systems, Envt’l Prot. Agency https://www.epa.gov/dwreginfo/primacy-enforcement-responsibility-public-water-systems.

[15] Drinking Water Programs, Michigan Dept of Envt’l Quality, http://www.michigan.gov/deq/0,4561,7-135-3313_3675—,00.html.

[16] Water Enforcement, Envt’l Prot. Agency https://www.epa.gov/enforcement/water-enforcement.

[17] Who’s at Fault in Flint Water Crisis? Rick Snyder, EPA’s McCarthy to Clash, Todd Spangler and Matthew Dolan, Detroit Free Press (March 17, 2016) http://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/03/16/rick-snyder-flint-water-crisis/81877720/

[18] Final Report, Flint Water Advisory Task Force (March 2016) https://www.michigan.gov/documents/snyder/FWATF_FINAL_REPORT_21March2016_517805_7.pdf.

[19] Management Alert: Drinking Water Contamination in Flint, Michigan Demonstrates A Need to Clarify EPA Authority To Issue Emergency Orders To Protect The Public, EPA Office of the Inspector General (October 20, 2016) https://www.epa.gov/sites/production/files/2016-10/documents/_epaoig_20161020-17-p-0004.pdf.

[20] Flint Drinking Water Response, Envt’l Prot. Agency https://www.epa.gov/flint; Taking Action on Flint Water, http://www.michigan.gov/flintwater.

[21] Flint Water Crisis, Joint Committee on the Flint Water Public Health Emergency, https://www.scribd.com/document/328166037/Report-of-the-Joint-Select-Committee.

[22] http://www.cnn.com/2016/02/03/us/flint-michigan-water-crisis/; http://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/03/15/five-takeaways-congressional-hearing-flint/81819996/; http://www.chicagotribune.com/news/nationworld/midwest/ct-epa-flint-water-crisis-20160315-story.html.

[23] Who’s to Blame for Poisoning of Flint’s Water? Wendy N. Davis (Nov. 1, 2016), ABA Journal http://www.abajournal.com/magazine/article/flint_water_crisis_whos_to_blame; Judge Allows Class-Action Suit Against Officials to Advance, Greenwire (Oct. 28, 2016) http://www.eenews.net/greenwire/stories/1060044981/search?keyword=Flint%2C+Michigan; Rebecca Hersher, They ‘Failed’: 6 More Michigan Employees Charged in Flint Water Crisis, NPR, (July 29, 2016) http://www.npr.org/sections/thetwo-way/2016/07/29/487934982/they-failed-6-more-michigan-employees-charged-in-flint-water-crisis.

[24] Final Report, Flint Water Advisory Task Force (March 2016) https://www.michigan.gov/documents/snyder/FWATF_FINAL_REPORT_21March2016_517805_7.pdf.

[25] Senate Passes Bills Containing Aid for Flint, Melissa Nann Burke, Detroit News (Dec. 10, 2016) http://www.detroitnews.com/story/news/michigan/flint-water-crisis/2016/12/09/democrat-senators-hold-bills-containing-flint-aid/95220482/.

[26] 2013 Report Card for America’s Infrastructure, American Society of Civil Engineers http://www.infrastructurereportcard.org/a/#p/drinking-water/overview; Rob Curran, Flint’s Water Crisis Should Raise Alarms for America’s Aging Cities, Fortune (Jan. 25, 2016) http://fortune.com/2016/01/25/flint-water-crisis-america-aging-cities-lead-pipes/

[27] Basic Information on the CCL and Regulatory Determination, Envt’l Pro. Agency, https://www.epa.gov/ccl/basic-information-ccl-and-regulatory-determination; What EPA Does With the CCL, Envt’l Prot. Agency, https://www.epa.gov/ccl/what-epa-does-ccl; Chemical Contaminants List 4, Envt’l Prot. Agency https://www.epa.gov/ccl/chemical-contaminants-ccl-4.