The Flint,Michigan,Water Crisis: A Case Study in Regulatory Failure and Environmental Injustice

Flint, Michigan: a man-made disaster

Flint, Michigan, has been overburdened with pollution dating back to the 1930s when the area's booming auto industry manufactured batteries, paints, lacquers, enamels, and gasoline, releasing the by-products of these processes into the city's air, water, and soil. The Flint River carried the toxic effluent of a city that was at one time an industrial mecca and economic powerhouse. ⁷ Today, the economic landscape of Flint has changed dramatically. The population has dropped to about 100,000 people (from over 200,000 in the 1960s) and 41.6% of those people are living below the poverty level. ⁸ Over the years, the auto industry has left Flint, taking with it the city's economic success. The economic deprivation of Flint not only gave birth to a drinking water crisis but also exacerbated its effects.

In an effort to address the severe economic distress of the city of Flint, the state of Michigan used the Local Financial and Stability of Choice Act to replace the city's government with an Emergency Manager on November 29, 2011.^9,10 Emergency managers had been appointed by the state of Michigan in other cities suffering similar economic hardship, including Detroit. The law is designed to safeguard and assure the financial accountability of the local governments. ¹⁰ However, the less tangible danger of such appointed and transient officials is in removing the sense of accountability held by elected officials. The removal of this accountability led the way for economic-driven decision making that failed to adequately protect the interests of the electorate, and public health.

In the months following the switch of water supplies, the corrosive water caused contamination of lead and bacteria throughout the water system. As the contamination became known, residents fought to have it mitigated and were failed by multiple government agencies. Further details of the timeline of the crisis and lack of response are provided supplementary to this article. We now discuss these particular failures in the context of similar failures to protect vulnerable populations from lead in drinking water across the country, and actions to prevent such failure in the future.

Safe Drinking Water Act

The purpose of the Safe Drinking Water Act (SDWA) passed by Congress in 1974 is to protect the nation's public drinking water supplies and public health. Under the SDWA, the United States Environmental Protection Agency (EPA) has the authority to set national health-based standards for contaminants that could appear in drinking water from both anthropogenic and naturally occurring sources. Although the SDWA is a federal law and the EPA establishes mandatory standards for contaminants, administration and enforcement of the law may be carried out by states. States can apply for “primacy,” which gives them the authority to enforce the SDWA in their state jurisdiction. In their application for primacy, the state must prove that it can adopt standards in the state equal or greater than those set by the SDWA and that it can make sure that community water suppliers are meeting those standards. Today, every state has SDWA primacy, with the exception of Wyoming. ¹¹

Failure of the SDWA in Flint

On February 3, 2016, the House Committee on Oversight and Government Reform convened to examine the federal administration of the SDWA in Flint, Michigan. They determined that there was failure at every level of government. The EPA was made aware of the high levels of lead in Flint drinking water in April 2015 but did not act until January 2016 when fierce media attention prompted them to act. Under the SDWA, the EPA must step in and enforce the law when it is brought to their attention that the primacy state is not adequately enforcing the law. The Oversight Committee established that EPA staff member, Miquel del Toral, attempted to move the EPA to act on their obligation to assert control over the Flint crisis and the EPA failed to do so in a timely manner in direct violation of the SDWA. ¹²

Lead and copper rule

Under the SDWA, the EPA sets National Primary Drinking Water Regulations, which are legally enforceable standards that public drinking water suppliers must meet. There are more than 80 contaminants on the list with a legally enforced maximum contaminant level (MCL) determined by the EPA to protect public health. They include microorganisms, disinfectants, disinfection by-products, inorganic chemicals, organic chemicals, and radionuclides. The contaminant levels are measured as they are leaving the treatment plant. There are two exceptions; lead and copper are regulated by treatment technology that requires the system to control the corrosiveness of the water. Unlike the other contaminants, lead and copper are also measured at the tap in a subsample of homes to monitor contamination of the water by these chemicals that may have occurred as the water moved through the pipe network. ¹³

Before 1991, the MCL for lead in drinking water was 50 ppb, measured as the water entered the distribution system network. In 1991, the lead and copper rule (LCR) was passed to reduce levels of lead and copper in drinking water and to address that lead and copper likely enter the water from corrosion of plumbing materials after entering the pipe network, and hence, it is appropriate to measure these contaminants at the tap. ¹⁴ The LCR applies to all community water supplies and sets a maximum contaminant goal for lead in drinking water at 0 and an action level (AL) at 15 ppb. The AL is based on the 90th percentile. If the 90th percentile level of tap water samples is above 15 ppb, then actions must be taken to address the lead levels. These actions include water quality parameter (WQP) monitoring, corrosion control treatment, source water monitoring/treatment, public education, and lead service line replacement. ¹⁵

The law states that the community water supply must take first-draw samples at homes that are at high risk of lead and/or copper contamination. A first-draw sample means that the water has been sitting for 6 hours in the plumbing before turning on the faucet. Homes at high risk include older homes that may have lead plumbing or are located in neighborhoods that have historically had high levels of lead in drinking water. The community water supply does not have to sample from all of the homes in the system. The number of samples is determined by the size of the system. For a system the size of Flint, they likely would need to sample for lead and copper at 100 homes on a standard sampling schedule and 50 homes on a reduced sampling schedule. A supplier qualifies for a reduced sampling schedule by having written state approval after having two consecutive 6-month sampling cycles where the 90th percentile was below the AL of 15 ppb. A system also has to conduct WQP testing at the tap in addition to the lead and copper sampling. WQP testing must be done at the entry point of the pipe network and at 25 taps (for a large system on a standard schedule) or 10 taps (for a large system on a reduced schedule). The LCR also states that within 30 days of acquiring the results, the community water system must provide the results to the people who receive their water from the tap sampled, regardless of whether the system is above or below the AL. ³

Failures of the LCR in Flint

On December 31, 2014, the first 6-month round of LCR sampling in Flint ended. As instructed by the LCR for a community supplier of its size, Flint Water Treatment Plant (FWTP) sampled 100 homes. According to the Flint Water Advisory Task Force (FWATF) final report, the 100 samples were not drawn from the homes that represented the highest risk of lead and copper contamination. This was the first violation of the LCR. The 90th percentile lead level at the end of this sampling round was 6 ppb; well below the AL of 15 ppb. However, in addition to a flawed sample selection strategy, appropriate sampling protocols were not followed at the tap. Under the LCR, the sample should be a first draw after the water has been stagnant in the pipes. The Michigan Department of Environmental Quality (MDEQ) improperly instructs all Michigan community water suppliers to do a preflush of the tap the night before the sampling. This interferes with the validity of the first-draw sample and could explain why samples in that first 6-month cycle were lower than samples taken at the same locations on subsequent dates. Preflushing the night before sampling was the second violation of the LCR. ¹⁶

The results of the first round of sampling disqualified the Flint Water Supply from the corrosion control exemption because it failed to achieve the required results. The law states that they should have implemented corrosion control technology. The MDEQ failed to inform the FWTP about this part of the legislation and the FWTP did not implement corrosion controls. The failure to implement corrosion control was the third and most egregious violation of the LCR. ³

On February 27, 2015, MDEQ staffer Stephen Busch e-mailed the EPA reporting that the 90th percentile for the first sampling period was 6 ppb and Flint had an optimized corrosion control system. This was apparently dishonest, as Flint was not utilizing any corrosion controls at that point. Criminal charges have since been brought against Mr. Busch and two others.^16,17

Inadequate response and environmental justice

As the House Committee on Oversight and Government Reform concluded in their proceedings on the situation in Flint, government failed the residents of Flint at every level. During the hearing, Representative Jody Rice (R-GA) went on record as saying: “I don't know Mr. Chairman, that there's been more of a catastrophe in government handling of an issue since Hurricane Katrina.” ²⁰ The list of agencies that could have stepped in at some point and prevented the exposure in Flint homes for over 16 months includes the Emergency Manager, the MDEQ, the Environmental Protection Agency, the Michigan Department of Health and Human Services, the city of Flint, and the state of Michigan. There were numerous opportunities for regulatory agencies to do right by the residents of Flint. Perhaps the most perplexing question as the saga of Flint unfolded is “Why did it take so long for action?”

It can be argued that the birth of this crisis, the inadequate government response to the disaster, and the blatant disregard for the public health were, in part, the result of the racial and economic characteristics of Flint. ²¹ The community of Flint is 62.6% people of color, 41.6% of individuals live below the poverty level, 54.5% of households with a child younger than 5years below the poverty level, 25.7% of adults older than 18 years have less than a high school education, and the median income in 2014 was less than half of the median income for the United States. ⁸ What role did this play in the crisis?

On January 17, 2016, the National Association for the Advancement of Colored People (NAACP) released a statement regarding the Flint water crisis, which read, in part, “We must hold accountable Michigan's public officials who chose to balance the city's budget at the expense of the health of the citizens they serve. Even as children were showing up sick in doctor's offices with rashes and cases of hair loss, state environmental officials and elected leaders refused to see the warning signs. Would more have been done, and at a much faster pace, if nearly 40% of Flint residents were not living below the poverty line? The answer is unequivocally yes.” ²²

Communities with lead problems

As media outlets, including the New York Times, the Washington Post, USA Today, the Guardian, CNN, and others, conducted investigative reporting of the Flint water crisis, it became clear that although the narrative of Flint, Michigan, was dramatic, it was unfortunately not new. Stories from other cities both past and present highlight failures of implementation and enforcement of drinking water regulations and consequential contamination of drinking water. Many of the impacted communities share Flint's racial and economic characteristics.

Evidence of environmental injustice

From 2001 to 2004 in Washington DC, elevated blood lead levels were tied to widespread lead contamination in drinking water. ²³ A well-publicized cover up of the severity of this incident was revealed in 2003 by Professor Marc Edwards and others. ²⁴ Washington DC is 61.5% minority race and 18.2% of individuals live below the poverty line. ⁸ In 2005, 10 of the community water suppliers for the city of Columbia, South Carolina, were found to be out of compliance with the LCR. ²⁵ Columbia, South Carolina, is 48.3% minority race and 24.2% of individuals live below the poverty line. ⁸ In 2006 in Durham and Greenville, North Carolina, elevated blood lead levels in children were traced to lead levels in drinking water of 20 ppb. When a child's pediatrician recommended the child's food stop being prepared in water from the municipal water supplier, the child's lead levels returned to normal. ²⁶ Durham, North Carolina, is 53.6% minority race and 18.1% of people live below the poverty level. Greenville, North Carolina, is 43.7% minority race and 30.7% of individuals live below the poverty line. ⁸ In July 2015, residents of Jackson, Mississippi, were warned about high lead levels in their drinking water, 6 months after the problem was first discovered. ²⁷ Jackson is 81.6% minority race and 29.9% of individuals live below the poverty line. In February 2016 in Ithaca, New York, the public drinking water was shut off at every school in the city due to the detection of high levels of lead in the water. ²⁸ Ithaca, New York, is 43.7% minority race and 30.7% of individuals live below the poverty line. ⁸

These communities experienced environmental injustice. EPA defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA goal is “for all communities and persons across this nation…to enjoy the same degree of protection from environmental health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.” ²⁹

The successful implementation and enforcement of the SDWA, including the LCR, and equal access to the decision-making process irrespective of race and income were not achieved in Flint, Michigan. It was not achieved in Washington, DC, or Columbia, South Carolina, or Greenville and Durham, North Carolina, or Jackson, Mississippi, or Ithaca, New York. The failure of these laws is disproportionately impacting economically depressed communities of color.

Revisions to the LCR

In part, due to the historical inadequacies of the LCR, the EPA is currently considering long-term revisions. The primary goals of the revision are to (1) improve the effectiveness of the corrosion control treatment in reducing exposure to lead and (2) trigger additional actions that equitably reduce the public's exposure to lead and copper when corrosion control treatment alone is not effective. The EPA has sought input from multiple stakeholders and formed the National Drinking Water Advisory Council (NDWAC) LCR Working Group. The NDWAC recommends that the EPA focus on five key issues (1) sample site selection criteria, (2) lead sampling protocols, (3) public education for copper, (4) measures to ensure optimal corrosion control treatment, and (5) lead service line replacement. ³⁰ In March 2011, the EPA held a public meeting seeking comment on environmental justice considerations for the proposed revision. ³¹

Many of the proposed revisions could have possibly prevented the situation that contributed to the Flint water crisis. However, in addition to improved regulation, it is important to note that the success of the LCR relies on enforcement. In cases where state agencies fail to adequately enforce the LCR, the EPA must step in immediately.