Bill Manzi.com

The story of the Flint water system, and how governmental action (and later inaction) created infrastructure that poisoned the residents of Flint by the supply of tainted water, has not only impacted the residents but has left a wide trail of recrimination, finger pointing, and now indictments. The Michigan “Emergency Manager” law is under siege as a consequence of key decisions being made by Emergency Managers in Flint appointed by the Governor. The history and the effectiveness of that law requires another post. For today we have the release of the EPA report on the Flint water situation. While the EPA report does deal with some technical data it is instructive in how the relationship between the State and the EPA worked, and is working today, and the failures of management at the EPA level that allowed state and local malfeasance to continue until it was too late for the residents of Flint.

Before you can even get to “what happened,” determining who was in charge, and who had the statutory authority to act, is vital. Although ultimately governed by federal law the EPA has granted most states “primacy” in enforcement, meaning that the State handles enforcement of the (Safe Drinking Water Act) federal law after a finding by the EPA that the state is equipped to do so. Michigan was operating under “primacy” in this instance. From the report:

The SDWA, 42 U.S.C. § 300f et seq., is the federal law that protects public drinking water supplies throughout the nation. The law assigns the EPA Administrator the ultimate authority to protect public health by setting and enforcing drinking water quality standards. However, the SDWA allows the EPA to grant states the authority to implement and enforce SDWA regulations in an arrangement referred to as “primacy.” To receive EPA approval for primacy, states must demonstrate that they have adopted regulations that are at least as stringent as national requirements, are implementing adequate procedures for the enforcement of these regulations, and will keep records and make reports as the EPA may require. The EPA has granted nearly all states—including Michigan—primacy to implement the SDWA. When states are granted primacy, the EPA retains the responsibility for overseeing state implementation and federal enforcement authority. In 1978, the EPA determined that Michigan met all SDWA requirements to be granted primacy, including adopting and implementing enforcement procedures.

The “primacy” of Michigan did not take away ultimate oversight authority from the EPA, but it certainly put Michigan in the position of initial oversight of the transactions that created the problem in Flint. When Flint determined that they were going to change their source of water from the Detroit water system to the Flint River the MDEQ (Michigan Department of Environmental Quality, the primacy agency) did not require Flint to add anti-corrosion chemicals, a fatal error. But beyond being an error was it also a violation under the LCR component (Lead & Copper Rule) of the SDWA that Michigan, under primacy, was charged with enforcing? This EPA report claims that it was, but seems to acknowledge some degree of gray in the “interpretation” of the LCR by the MDEQ.

Under the MDEQ’s supervision, the Flint water system did not adhere to two Lead and Copper Rule requirements: (1) develop and maintain an inventory of lead service lines needed for sampling, and (2) maintain corrosion control treatment after the water source switch in April 2014. The rule requires utilities to minimize consumers’ exposure to lead in drinking water. As the primacy agency, the MDEQ is responsible for enforcing this rule for Michigan water systems. The MDEQ did not issue a notice of violation or take other formal enforcement action regarding either requirement until August 2015. Instead, the MDEQ advised Flint public water system staff to conduct additional tests and to delay corrosion control treatment installation. The decision to delay corrosion control treatment prolonged residents’ exposure to lead.

Once the decision was made to “test” rather than ordering the anti-corrosion treatments after the switch in water supply the Flint water infrastructure was permanently damaged. As the extent of the problem began apparent the reaction of the MDEQ, the EPA, and of the Flint local authorities was slow and ineffective. Flint made a determination to switch back to the Detroit water system (renamed the Great Lakes Water Authority) which had anti-corrosion treatment in the system. They additionally added anti-corrosion treatment of their own, but the damage to the system was done, and lead levels in the water did not drop below federally acceptable levels.

In October 2015, instead of installing corrosion control treatment, Flint’s water system returned to purchasing drinking water from the Great Lakes Water Authority (formerly called the Detroit Water and Sewerage Department), which already included corrosion control treatment. At the time of this change, almost a year-and-a-half of exposure to improperly treated water had damaged the city’s drinking water infrastructure, and lead concentrations continued to rise. In December 2015, the MDEQ reported that Flint began supplementing Detroit water with additional corrosion control treatment. However, due to the damage done to the Flint distribution system, the lead levels in drinking water did not fall below the federal action level until late 2016.

The EPA report deals with the interaction between the State of Michigan and the EPA, and is without question vitally important in understanding the management and systemic failures that brought catastrophe to the residents of Flint. There is a lot more to the story, including the interaction between the local government and the MDEQ, and the role of the Emergency Managers who were running the City of Flint under the authority granted by the Michigan State Legislature (Public Act 436 passed in 2012.) Two of those Emergency Managers were indicted, as well as two local officials connected to the delivery of water to the residents of Flint. Public Act 436 has had much written about it, but for the purposes of this post I will leave that discussion for another day. The Anna Clark book “The Poisoned City: Flint’s Water and the American Urban Tragedy” will be reviewed here soon, with Public Act 436 left to that post.

The below report highlights the management failures on the part of the EPA. It is evident to me that the MDEQ “primacy” in enforcing the SDWA led to laxity on the part of the EPA in looking at the critical early actions of the MDEQ when Flint made the water system change over. The communication between the EPA and the MDEQ was lax, as the EPA acknowledged in the report overview. From my perspective the lack of clarity in the language of the LCR led the MDEQ to make the wrong call on the legal requirement that the new source of drinking water for Flint contain anti-corrosion treatment. While the EPA cited that error, and stated clearly that the MDEQ should have ordered that treatment under the LCR, the damage was done. Where was the initial EPA review of that fateful decision? Why did the language of the LCR leave any doubt as to the correct course of action for the MDEQ, and the City of Flint, as to whether the switch in water systems required the addition of anti-corrosion treatment? The report highlights the dispute between the EPA Office and the MDEQ on the legal requirements of the LCR on this question, which highlights to me the obvious language difficulties in the LCR. Spending time seeking legal clarity on the intent of the language in a situation where the requirement should be clear points to the need for some adjustment to the LCR language.

Region 5 stated that the length of time that it took to obtain a legal interpretation delayed formal intervention. In a July 2015 meeting, the EPA and the MDEQ disagreed over interpretations of LCR corrosion control treatment requirements in Flint. The MDEQ requested, and Region 5 program staff agreed to obtain, a legal opinion from EPA headquarters. In August 2015, Region 5 and EPA headquarters began discussing Flint compliance with the requirements and the MDEQ’s interpretation of those requirements.
However, headquarters personnel stated that Region 5’s characterization of the situation lacked a sense of urgency. Region 5 did not make an official request for a headquarters’ opinion until September 30, 2015. Region 5 did not receive a legal opinion, but the region’s request ultimately resulted in a November 2015 Office of Water memo clarifying the LCR corrosion control treatment requirements for all large water systems.

The failure of communication, mentioned above, is highlighted by the below excerpt, again centered on the disagreement on whether the LCR required the addition of corrosion control after the system change by Flint. From my perspective it is a failure of both the EPA and the MDEQ, but if the MDEQ was making the wrong call it was incumbent on the EPA to order the MDEQ to add the corrosion control. It is amazing to me, from a management perspective, that such an issue was not vetted as Flint looked to make the water system change.It should have been on a punch list that was evaluated by the MDEQ, and reviewed by the EPA, with the final determination made before any change was approved. The weakness of the EPA field office is shown clearly by the below.

Region 5 told us that communication with the MDEQ was frequent, consistent and clear, but the MDEQ failed to take appropriate actions when Region 5 consistently identified problems. According to EPA Region 5 managers, in April 2015, the EPA voiced concerns about the lack of corrosion control treatment to the MDEQ’s Water Director. Region 5 managers said that in June 2015 they advised the MDEQ that the LCR required Flint to maintain consistent corrosion control treatment. However, an MDEQ manager stated that Region 5 did not advise them to initiate corrosion control at that point.

The report does not attempt to hide the federal deficiencies.The EPA Inspector General brought forward the summary of management failures exhibited by EPA Region 5, and discussed each one in detail.

The EPA retains oversight and enforcement authorities to provide assurance that primacy states comply with the SDWA. However, timely oversight interventions rely on effective management systems that govern how and when the agency should intervene. EPA Region 5 did not manage its drinking water oversight program in a way that facilitated effective oversight and timely intervention in Flint. EPA Region 5 did not:
• Establish clear roles and responsibilities with the MDEQ.
• Communicate clearly and effectively.
• Use effective risk assessment protocols.
• Proactively use available SDWA authorities and oversight tools to intervene in Michigan’s drinking water program.
These weaknesses limited Region 5’s ability to monitor, adapt and respond to changing situations in Michigan and the city of Flint.

The failures of the EPA in this case need to be remedied so that future calamities are avoided. There is no substitute for strong management, even where areas of responsibility may not be clearly delineated.Sometimes that strong management requires the placing of inter-agency collegiality on a lesser scale of importance. Although not covered in this report the question of whether Michigan should have “primacy” revoked so that the “roles and responsibilities” issue is resolved in favor of full EPA regulatory authority was not mentioned, although it probably should have been. The human costs of these mistakes have been severe. Hopefully the lessons learned will help avoid these costly management mistakes in the future.

EPA IG Flint Report July 2018