FLINT WATER AND THE NO-BLAME GAME; TRUE FILES FED COMPLAINT RE: DISPARATE IMPACT

Posted by Curt Guyette in Democracy Watch

Thursday, 15 October 2015

In last week’s press conference announcing that the city of Flint would finally be allowed to return to Detroit’s water system, Gov. Rick Snyder made it a point to note that placing blame for the lead poisoning of children is not something he intends to do.

He wants to address the current problem, learn what can be done better in the future, and move forward.

Call it the “no-blame” game.

The governor’s spokesperson, Sara Wurfel, is playing it as hard as anyone right now.

In an interview with the ACLU of Michigan following the governor’s tightly-managed press conference, Wurfel did the best she could to absolve her boss of any responsibility for the disastrous decision to begin using the Flint River as the city’s source of drinking water in April 2014.

Asked about the governor’s role in that decision, Wurfel claimed that there was really no choice to be made, that the city of Detroit kicked Flint off of its system, thus forcing the switch to river water.

We’re not the only one she’s trying to spin. Wurfel made a similar claim in a statement to the Flint Journal this week.

DWSD workers picket Detroit Water Board Building Oct. 13, 2015 to denounce unsafe practices for entire 6-county system due to drastic staff reductions, among other issues.

According to the paper, Wurfel asserted that the city was forced to find another source of water after the Detroit Water and Sewerage Department terminated Flint’s contract to continue purchasing water under the terms of its expired contract.

Maybe the Snyder administration is operating under the theory that a lie repeated often enough is eventually accepted as fact.

But here’s the truth:

Flint did have a choice. It absolutely could have kept using Detroit water until construction of the Karegondi pipeline, which will bring water from Lake Huron to Genesee County, is completed next year.

Instead, in a decision based purely on cost, the Flint emergency manager appointed by Snyder chose to leave the Detroit system early and begin relying on the Flint River in April 2014.

How do we know that?

Because of a letter the ACLU of Michigan obtained through the Freedom of Information Act.

On March 7, 2014, then-Emergency Darnell Earley  wrote to the DWSD, saying:

“Thank you for the correspondence … which provides Flint with the option of continuing to purchase water from DWSD following the termination of the current contract …”Thanks, but no thanks.

“… the City of Flint has actively pursued using the Flint River as a temporary water source while the KWA pipeline is being constructed,” wrote Earley. “We expect the Flint Water Treatment Plant will be fully operational and capable of treating Flint River water…”

As it turns out, the city, under the control of an emergency manager appointed by the governor, proved to be entirely incapable of properly treating water from the highly corrosive Flint River.

As a result of that failure, children were poisoned by lead in the water coming out of the taps in their homes and, quite possibly, the fountains in their schools.

Lead that was present because the river water is many times more corrosive than Detroit’s. Lead that was present because Flint officials  and the Michigan Department of Environmental Quality inexplicably stopped adding the same types of corrosion inhibitors Detroit routinely puts in its water just so a public-health disaster such as this does not occur.

As calls for a thorough, independent investigation of this debacle increase, the denials of responsibility by the key players are becoming farcical as they stumble over themselves in an attempt to avoid blame.

Particularly absurd are Earley’s claims that he bears no responsibility for the catastrophe that began while he wielded complete control over every aspect of the city’s government. As the Flint Journal’s Ron Fonger reports, Earley recently sent the paper an email claiming:

“The decision to separate from (the Detroit Water and Sewerage Department) and go with the Karegnondi Water Authority, including the decision to pump Flint River water in the interim, were both a part of a long-term plan that was approved by Flint’s mayor, and confirmed by a City Council vote of 7-1 in March of 2013 — a full seven months before I began my term as emergency manager.”

Under the state’s far-reaching emergency manager law, Earley clearly had the authority to do whatever he wanted at that point. So his attempts to shield himself from responsibility are beyond bogus.

But it is even worse than that.

As the Flint Journal’s Fonger points out:, “Although the Flint City Council voted in March 2013 in support of moving to the KWA pipeline … there is no record that the council voted to use the Flint River as a short-term drinking water source.”

Being the current emergency manager in charge of  Detroit Public Schools and its 47,000 students, it is easy to see why all this might be a particularly touchy subject for Earley – and the governor who appointed him to both positions.

Fingers are being pointed in all directions, and lies are being told in an attempt to avoid responsibility.

In a recent interview with the ACLU of Michigan, Flint Public Works Director Howard Croft initially tried making the same false claim as Wurfel, saying that Flint was forced to leave the Detroit system and begin using the river as its water source.

When confronted with Earley’s letter, he relented, and pointed the finger of blame at the state, saying the decision to switch came from the governor’s office.

Asked to respond to that accusation, Wurfel tried her best to sidestep the issue. She could have put the matter to rest immediately by simply declaring: “That is absolutely untrue.”

But she didn’t say that.  Instead, she trotted out the false claim that the city was forced to make the switch. When pressed on that point, and then asked again about the governor’s role in making the tragically bad decision to force the people of Flint to drink from a dangerous river, she again tried to slip out of giving a direct answer.

“You’re saying that the governor’s office was directly involved? I can’t address that at all because that’s not accurate.”

So she is not addressing a direct question because it is not accurate?

Questions are neither accurate nor inaccurate, but answers should be.

There is usually a compelling reason why evasion and obfuscation are the responses to a yes or no question. And the reason is this: The people doing the evading are afraid to tell the truth, and even more afraid to face the consequences that come with it.

Curt Guyette is an investigative reporter for the ACLU of Michigan. His work focuses on emergency management and open government. He can be reached at 313-578-6834 or cguyette@aclumich.org.

Related:

http://voiceofdetroit.net/2015/10/13/will-regional-takeover-of-detroit-water-make-residents-of-6-counties-drink-flint-water/

THE TITLE VI COMPLAINT OF TRUE RE: FLINT WATER

DATE: 10/15/15

TO: Attorney Jim Eichner

FROM: Taxpaying Residents United for Education (TRUE)

PERSPECTIVE: Thomas Jefferson said the mother principle of a republic is that the will of the people is represented, “governments are republican only in proportion as they embody the will of their people, and execute it.”

Taxpaying Residents United for 21st century Education, is a coalition of 26 Michigan groups, 2 national organizations, concerned teachers, a variety of leaders with a 10 point mission statement. We feel poorly represented in safety checks and balances, and wish to assert a complaint on the issues of state knowledge of lead in our water and a breakdown of public safety principals, protocols, best practices and communication under PA 436, as practiced by the State of Michigan.

ISSUE: Negotiations between two Emergency Managers, Orr and Hurtz/Earley did not put safety first. Flint released contaminated or toxic water into drinking fountains of Flint Public Schools and Flint Residents. Flint did not use chemicals which would minimize corrosion. In October 2014, General Motors received a waiver and stopped using Flint River water due to corrosion issues on metal parts. There was a failure by responsible officials to notify residents of public health emergency after internal EPA memo went to press July 15, 2015. Instead city officials sent a notice to each address that “This is not an emergency.” The MDEQ and MDHS criticized the Virginia Tech study which cited corrosion issues and Dr. Hana-Attisha’s study. Former EM Earley has denied responsibility. Shuette says state liability for EM decision is “hypothetical.”

PATTERN OF BREAK DOWN OF PUBLIC SAFETY: As Emergency Manager of Detroit, Kevyn Orr did not apply for Federal grants or use Federal grants available through FEMA, while fire fighters needed more personnel and equipment. He also shut the electricity off on all residents in the City on September 11, 2013 so that traffic lights stopped, the court house went black, fire house doors would not open, and people were stuck on elevators. People were evacuated from buildings and productivity of businesses was lost. He caused unnecessary harm and chaos, yet Gary Brown stated this was done to send a message.

The United Nations also cited Detroit for human rights violations due to mass water shut offs which increased asthma and sepsis and resulted in among the greatest number of e.coli and other bacterial outbreaks in the nation that year. Under PA 436, state departments like MDEQ and MDHS are one entity with the Emergency Manager, as the EM making decisions is an employee of the state. Under normal democracy, the State would represent the best interests of citizens to come to tell a town or council that actions were a threat to public health providing checks and balances.

JURISDICTION: The State is a recipient of Federal funds. Educational environments should be safe. There is a disparate impact on women and the minority community and a disparate environmental impact on the poor.

RMO: Governor Rick Snyder, Ed Kurtz, Darnell Earley, Dan Wyatt, Nick Lyon, Brad Wurfel

SUMMARY:

Risk Assessment

Emergency Managers, Ed Kurtz and Darnell Earley, knew or should have known, that stopping flow of water from the Huron River and releasing Flint River Water to the treatment plant and into the tap of Flint Schools was dangerous. Ed Kurtz, the Mayor of Flint and the appointed rather than elected City Council, under PA 436 chose to focus on money savings in an area where such a mistake could risk public health and result in death, long term disability, and illness.

Follow Up Assessment

Emergency Manager, Darnell Earley, knew or should have known, lead levels were rising rapidly and did reach 6ppb, and that 6ppb under current standards, could pose a health risk because the EPA has informed all water departments of new testing, that while not mandated, could help provide a clarity on the true health risk.

A reduction in samples was allowed in taking samples from January to June, with the paltry excuse that the population had dropped below 100,000, despite rising lead levels. The population is over 99,000.

False Reassurances to Public

On or about July 15, 2015, Michigan radio went public with a leaked memo and an ACLU documentary by Curt Guyette. Brad Wurfel of MDEQ did not walk back comments “Let me start here – anyone who is concerned about lead in the drinking water in Flint can relax.” The memo details an EPA staffer’s concern about how the city tests for lead and results from a lab at Virginia Tech that show elevated levels of lead at one resident’s home and whether tests at other Flint homes with elevated lead levels are being included in the broader water tests that Wurfel referenced. That test shows levels that are high enough to be considered hazardous waste.

TRANSPARENCY:

After the Virginia Tech researcher Marc Edwards and Hurley Medical Center doctor Dr. Mona Hanna-Attisha released their findings, rather than take immediate or even precautionary measures, DEQ and DHHS criticized the other findings and allowed students and pregnant women to continue drinking contaminated water. In August 2015, the DEQ advised the city to begin a plan, but the concerns about lead levels were never publicized, and schools opened and children were allowed to keep drinking the water for two months although the Freeman sample tested six times the federal limit.

ADVERSE IMPACT: Last month, a Hurley Medical Center doctor published a study showing that the percentage of Flint infants and children with above average lead levels had doubled citywide, and tripled among children in “high risk” areas of lead exposure (Zip codes 48503 and 48504). Virginia Tech researchers have said the city’s treated Flint River is very corrosive, causing lead from service lines to leach into tap water. Four of schools tested above 15 parts per billion for lead — the safety standard set by the federal government. Eisenhower had two samples of 16 ppb and 28 ppb, while Freeman had a sample that showed 101 parts per billion.

DETAILS: The EPA made training for new Lead Copper Rules to all water department officials around the country. According to MLive Reporter Ron Fonger’s article When did the State know about lead in Flint’s water? The first indication of rising lead levels in Flint drinking water came from city samples soon after it changed its water source from Lake Huron to the Flint River. Results showed increasing lead levels with 10 percent of homes tested at 6 parts per billion of lead or more. The EPA training explains current testing methods findings are much lower than actual lead content, and because of the extreme health risk of lead, new sampling methods which would better protect the public would be mandated in the near future.

DATE

According to the article, because the 6ppb were the highest lead levels measured in Flint by the city in more than a decade, and among the highest numbers in the state, (however did not meet the federal action limit of 15 ppb). In a companion article, Ron Fonger writes, “10 percent of homes sampled in the city’s most recent testing contained 11 parts per billion or more of lead, with six of 69 samples exceeding the federal lead limit of 15 ppb. Those are the highest lead levels measured in Flint by the city in more than 20 years, the state data shows. In contrast, the city’s tests of Lake Huron water from Detroit for one 10-year period — from June 2001 until September 2011 — resulted in just one of 155 samples registering higher than 15 ppb of lead.

The article also states: “State records show 100 samples were collected from Flint in the last six months of 2014, showing two sites with readings of more than 15 ppb of lead and 10 percent of homes registering at 6 ppb or more. From January until June this year, the city collected just 69 samples, a reduction that was allowed because Flint’s population had dropped below 100,000, Busch said.

Marc Edwards of Virginia Tech states, “The Flint River — based on the chemistry — has an obvious propensity for lead to be released to water,” Edwards said. “There should have been red lights flashing (when the city began using the river in April 2014) — knowing that if you put that water into Flint’s system without corrosion control, you’re going to see a massive lead release.”

That release is what Edwards’ testing has shown as 10 percent of homes sampled by students and faculty from Virginia Tech have had lead levels of at least 25 ppb.
Michigan Department of Environmental Quality Director Dan Wyant said the state notified the city of the need to develop a lead action plan in August 2015, but the concerns about lead levels were never publicized as a potential public health threat until researchers from Virginia Tech University pushed the issue.

WATER IN SCHOOLS:  In the past seven days, the state tested Flint School District buildings for lead in water, finding three buildings that tested above the federal limits. However, A spokeswoman for the state DHHS just two weeks ago dismissed the Hurley study, saying the state’s more extensive data “is not in line” with the findings.

Just one month ago, a spokesman for the state DEQ said of the testing that, while the state “appreciates academic participation in this discussion, offering broad, dire public health advice based on some quick testing could be seen as fanning political flames irresponsibly.”

The attempts of these department officials take into account the liability of the State, the Governor and other officials but not the health impact to the children and women who were consuming the water.

U.S. Rep. Dan Kildee, D-Flint Township, said, “The decision to switch to the Flint River water source was made while the city was under state emergency management, and now it is incumbent on Gov. Snyder and the state to fix — and pay — for the problem they created.”

TIMELINE

• April 24, 2014: Flint switches from Detroit water to Flint River water.
• April 30, 2014: Flint closes all valves connecting to Detroit water supply.
• June-Sept. 2014: Flint residents complain about smell, taste and discoloration of water.
• Dec. 16, 2014: Michigan Department of Environment Quality cites Flint for exceeding limits on disinfection by-products.
• Dec. 27, 2014: Flint’s General Motors engine plant, citing high chloride levels in the water, switches off its hook-up to Flint, drawing water instead from neighboring Flint Township.
• Jan. 9, 2015: Concerned about Flint’s water warnings, University of Michigan’s Flint campus begins testing its water, detecting lead in isolated, infrequently used areas.
  June 24, 2015: Environmental Protection Agency drafts a report raising concerns about lead in Flint’s water system as a result of corrosion. It doesn’t send the report, but discusses its concerns with MDEQ officials in July.
• Sept. 24, 2015: Dr. Mona Hanna-Attisha releases data showing spike in blood-lead levels in Flint children.
• Oct. 2, 2015: State officials tell room packed with reporters that there’s a problem with Flint’s water.

DISPARATE IMPACT – Children born to women who drank the water may have cognitive impairments in the future, as well as their grandchildren. Flint is well represented by children, women and minorities. Depending on other pollutants in the water, such as endocrine disruptors, the decision may have also impacted the reproductive development of males. Thus the decision may have impacted the reproductive viability of the community. Moreover, the health impact would have continued to be swept under the rug if not for a doctor and a university going public. The State did not take the initiative to protect these populations or schools. The State has only offered to test children under 7 free of charge, when all residents who are of child bearing age should be tested. This is also qualifies as environmental civil rights issue which negatively impacted the poor. We believe other methods existed, and could have prevented this outcome, and those methods are the same methods being used now, to remain on Detroit water until the other system is completed.

FLINT POPULATION

• Persons under 5 years, percent, 2010 8.0% (Flint)  6.0% (Michigan
• Black or African American alone, percent, 2010 (a) 56.6% (Flint) 14.2% (Michigan)
• Female persons, percent, 2010 52.0% (Flint)  50.9% (Michigan
• Persons below poverty level, percent, 2009-2013 41.5% (Flint) 16.8% (Michigan)