Flint Water Oversight: Sacred Cows & Sacrificial Lambs

Five days earlier they had loaded their suitcases, laptops, snacks, kids and water—there has been no escaping the extra heft of potable water—even as they took a brief respite from the foul and cursed realities of living in Flint. At that point even a 17 hour drive with kids so wired it was like they were experiencing Parkinson-like tremors was a welcome lull from the storm. The mothers looked for little things…gestures…small hands engrossed with a book. A mischievous glance from young eyes. Anything familiar and thus reassuring that their son, their daughter was riding with them into the future they had always believed. The future they have worked so hard to provide and protect.

They were on their way to the nation’s capital. To Congress. They were going to attend Congressional hearings in the People’s House. By now all the representatives knew the story’s rough contours: toxic water; irreversible lead poisoning; E-coli. And something worse. Lies, cover ups and distortions by people who had sworn to protect them—some by Hippocratic oath. Now, approaching two years on in what appears to be a systematic and deliberate war against a defenseless community by local, state and federal officials, these five families were hoping against hope that there remains some vestige of the grandeur that informs the long polished halls, the stately wooden doors, the monuments engraved with thunderous inscriptions from men and women exemplars of who we are as a people, that these mothers could point to, summoning their children to see what they too can hope to be.

Such are the whims of extremity, because the notion that their dreams are dead, their futures stunted, their expectations curt—is too hard. Too final. Too cruel. It takes a lot for a mother to abandon hope.

In Tuesday’s Hearing a discerning eye may have seen the rift opening between the committee members. The EPA fingered the state. Michigan decried budget constraints. The former Mayor singled out the Emergency Manager. Republicans zeroed in on President Obama’s EPA appointee. Democrats skewered the Republican Governor and his all powerful managers. They all played to  the cameras. It was the Roman Senate protecting its sacred cows.

Flint residents: Beware the Ides of March. You are the sacrificial lambs.

Administrator Gina McCarthy had an op-ed published in the Washington Post the day before Tuesday’s second hearing. It foreshadowed what would become the agency’s leitmotif—that Michigan was exclusively to blame. The agency had reluctantly dismissed what McCarthy termed as “honorable” Region 5 Administrator, Susan Hedman, for her inelegant handling of the rogue state. Flint was a mere incidental in the agency’s more sweeping concentration on similar vulnerabilities facing the entire nation.

Thus, her assertions before the House Oversight and Government Reform committee. So Michigan’s Department of Environmental Quality was so fraught with inaccuracies, mischaracterizations and incompetence that it took EPA months to sort it all out. By that  time, thousands had been harmed. With eerie echoes of Condoleezza Rice’s “we would have moved heaven and earth,” McCarthy said she would have “stood on rooftops” to prevent it.

For his part, Michigan Governor Rick Snyder wasn’t much better. Flint residents dismissed his lamentations that he “kicks himself every day” over his role in the water crisis, pointing out that he had visited Flint several times since the beginning of the scandal but the residents only learned of his visits after he had left.

He apologized. He said he understood their anger, their frustration. “Let me be blunt,” he said in his prepared opening statement. “This was a failure of government at all levels. Local, state, and federal officials—we all failed the families of Flint.” This was “not about politics or partisanship.” The Governor  took the high ground. “I am not going to point fingers or shift blame; there is plenty of that to share, and neither will help the people of Flint.”

Then he pointed his long accusing finger at the EPA. “A water expert at the federal EPA, tried to raise an alarm in February 2015, and he was silenced,” he testified. “(B)ureaucrats at the EPA allowed this disaster to continue unnecessarily.” This was the unfortunate consequence of Michigan’s economic woes. He never mentioned his administration’s cutting off of state funds to cities, or the hundreds of millions in surplus he had withheld from them.

Yet absent from all of this was the new test report from Flint resident Melissa May’s house received late on Wednesday by Scott Smith, Chief Technology Officer & Investigator for Water Defense, an environmental NGO. Scott had spent three of the last four weekends in Flint testing the water in people’s homes. He emailed a copy of the report to us from the plane on a tarmac in Dallas during an hour layover.

“I have attached Melissa’s test report. Dichlorobenze was found in the water heater, sink, and bathtub. This is similar to Harold Harrington’s house and is not an anomaly. Also, we found Chloroform and other trihalomethanes in Melissa’s bathtub / shower / sink.  Additionally, we are continuing to find high levels of phosphorus which also has implications as discussed in the attached summary.

“…’there are 3 human exposure pathways – 1.  Drinking water 2. Bathing / Showering water via the skin 3. Breathing volatile chemicals (Chloroform / Trihalomethanes / Dichlorobenze).  For any doctor or agency to use the drinking water pathway standard as a way to declare the water safe for bathing / showering and/or breathing the resulting volatile chemicals in a hot or warm shower/bath directly into the lungs is irresponsible and unacceptable.”

Bad news indeed, but then the inconceivable:

“Furthermore, Melissa May forward me a text she received from the city of Flint yesterday that states, ‘Flint Pediatrician Dr. Mona says based on current scientific testing, bathing is safe and warm showers are best.’ More:   https://www.cityofflint.com.”

After three Congressional Hearings, after sworn and solemn testimony with indignant fists pounding desktops—this. The knife turned once again in Flint’s collective gut, the city, the state, the EPA taking turns on the hilt.

The next day several busloads of Flint residents listened in the Hearing room and in several other overflow rooms. The experiences inside the hearing and overflow rooms were quite different. In the actual Hearing, armed guards kept watch over the proceedings that progressed without interruption or outburst. There were no such sentries in the overflow rooms. There, it was near pandemonium when the governor talked about “transparency,” all the measures he had enacted to help the people get back on their feet, his own remorse and “kicking himself.”

“Stay right where you are, Governor,” someone called out. “We’ll all be there real quick. We’ll do all the kicking for you!”

Yet after three days of hearings, decorum and proclamations the reality that the Members were involved in kabuki theater did not occur to the decent people of Flint. It takes a while for the stench and repugnance of such pretense to penetrate honorable consciousness. Beyond a handful of allies, the only true friends the people of Flint had in the room had made the trip from Michigan in the buses that were provided by the AFL-CIO. The likelihood of justice coming from Congress, is in direct proportion to the amount of pressure these same people can orchestrate in the streets.

The central pillar on which the entire tragedy rests—post the awareness on EPA’s part that toxins are in Flint’s water supply—is the deadly culture within the EPA itself. The agency would rather that hundreds of thousands of innocent victims suffer grievous harm than to address its own lethal culture. It is imperative that the people of Flint—and by extension all of us—move beyond our desire to exact a pound of flesh from a few arrogant public servants and shift our attention to the enabling, internal culture of the EPA and all government agencies: Under law, EPA and other government malfeasance is protected by sovereign immunity. Every one of the Senior Executive Service’s (SES) managers is aware of this. It is the mandate for every instance of crime, waste, fraud and abuse committed with impunity in the SES. It is why presidents order wars of aggression. It is why there are so many instances of police killing and maiming so many of our citizens in our own streets. A correlative pillar is that for those conscientious government employees who blow the whistle on abuse, the crushing weight of the government is relentless and there is no sufficient protection for them.

EPA whistleblower Miguel Del Toral has no such protection. No proscription exists to prevent retaliation against him. It may not come today. It may not come this year, but rest assured it is coming. Further, Flint residents are not entitled to Tort remedies. Not with former Region 5 EPA Administrator, Susan Hedman, not with Administrator McCarthy, not with any manager within the chain of command. None of the perpetrators who visited grievous harm to hundreds of thousands of innocent people in Flint will have to worry a single hair on their head about their own personal liability for the damages they caused to others—even if those damages include personal injury and death.

Emergency Powers

Despite Administrator McCarthy’s watery assertions that she had done everything within her power to help the Flint community as rapidly as possible, it appears that she did not take into consideration her considerable power under the Safe Drinking Water Act, as delineated on the EPA website:

SDWA section 1431, 42 U.S.C. §300i gives the EPA Administrator broad authority to act to protect the health of persons in situations where there may be an imminent and substantial endangerment. Specifically, section 1431 provides that, upon receipt of information that a contaminant that is present in or likely to enter a public water system or an underground source of drinking water, or there is a threatened or potential terrorist attack or other intentional act, that may present an imminent and substantial endangerment to the health of persons, the EPA Administrator may take any action she deems necessary to protect human health. [emphasis added]

Criminal Enforcement

The law also stipulates the EPA may levy heavy penalties and may assert primacy if the state falls short:

According to SDWA section 1447, 42 U.S.C. §300j-6 federal agencies are subject to state requirements for protection of wellhead areas, public water supply systems, and underground injection controls. In addition, states may exercise primary enforcement authority of the requirements for public water systems under SDWA section 1413, 42 U.S.C. §300g-2 if certain criteria are met. If the state does not properly enforce the SDWA, EPA may withdraw primacy or take appropriate enforcement action. [emphasis added]

Where is the President?

There is ample precedent for President Obama to intervene on the Flint citizenry’s behalf. In the 1950s and 60s, on three separate occasions the President of the United States intervened when states’ recalcitrance was materially injuring US citizens. The first was in 1957, when “President Eisenhower sent Federal troops to Little Rock, Ark.,… to open the way for the admission of nine Negro pupils to Central High School. John F. Kennedy, in 1963 issued “presidential proclamation 3542, forcing Alabama Governor George Wallace to comply with federal court orders allowing two African-American students to register for the summer session at the University of Alabama in Tuscaloosa. The proclamation ordered Wallace and all persons acting in concert with him to cease and desist from obstructing justice.” And on March, 18, 1965 Lyndon Johnson notified “Alabama’s Governor George Wallace that he (would) use federal authority to call up the Alabama National Guard in order to supervise a planned civil rights march from Selma to Montgomery.” In all three instances, the states relented and the law of the land prevailed.

In the cited cases of presidential intervention around integration, those directly involved were relatively few—yet they were representative of an entire class of people. In Flint, everyone without exception, who received their potable water from the Flint river was affected. Extraordinary circumstances require extraordinary responses. The Flint experience, given political will, could represent an opportunity for the president to intervene as Mr. Obama did with a January 16th declared emergency. As of last week’s hearings, it does not appear that significant, immediate steps are on the horizon.

Yet under constitutionally sanctioned emergency measures the president could still denote specific remedies for Flint that—unlike Michigan’s emergency plan—could be driven by human health needs rather than austerity. Such a plan could mandate delivery of potable water, facilities for bathing and other sanitary needs and some kind of  billeting for large numbers of people. We have seen vast mobilizations of these facilities—including providing air conditioning and gourmet cafeterias in the desert—for our war efforts abroad. And we have seen the domestic distribution of weaponry from those war zones. Why not deploy billeting technologies used for troop quarters overseas to provide the people of Flint with safe lodging and amenities? This could be authorized in cooperation with Congress.

There is growing grassroots support for strengthening existing Federal whistleblower protection law under the NO FEAR Act (Notification and Federal Employees Anti-discrimination and Retaliation) of 2002 by removing sovereign immunity from Federal managers and to subject them to personal liability for damages they inflict, including removing them from government service and severe penalties—including fines and incarceration.

Hundreds of Flint residents came to Washington on Thursday seeking pounds of flesh to be exacted from their governor. Their cheers drowned out the Chairman after he told Gina McCarthy she should resign. They rose to their feet with chants of “No justice, no peace!” ringing through the halls of Congress. Still, for justice to be fully realized, the energy and passion expressed by Flint residents on Capital Hill today needs to be transformed and focused in a concerted effort to pressure Congress—and the president—along two parallel tracks: 1) To provide meaningful relief from the calamity and to provide safe and decent living conditions while the water infrastructure is replaced. And 2) To codify whistleblower protections and government managers’ personal accountability.

The systematic and efficient structure that facilitates hundreds of thousands of troops being deployed overseas can be harnessed within a peacetime implementation to provide the people of Flint a dignified temporary infrastructure. Conversely, the systemic structure that underpins governmental corruption and criminality—that is currently protected under sovereign immunity—needs to be withheld from bad actors abusing government service and harming the communities they are sworn to serve. The confluence of these could serve as a model for rebuilding our national water infrastructure without poisoning entire populations.

• • •

Dr. Marsha Coleman-Adebayo is an EPA whistleblower who worked at the agency for 18 years. She is the author of the Pulitzer Prize nominated book ‘No Fear: A Whistleblowers Triumph over Corruption and Retaliation at the EPA‘. Her lawsuit led to the historic No Fear Act.

Kevin Berends is the Director of Communication for the No Fear Institute. He was the co-founder and first executive editor of Lake Affect Magazine and producer of the independent television program ‘Streetlevel.’ He serves on the Board of Directors of Voters for Peace in Washington, DC.

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