EPA initially avoided leading response — documents

By Tiffany Stecker, Kevin Bogardus, Sam Pearson | 03/17/2016 07:17 AM EDT

U.S. EPA Administrator Gina McCarthy came out swinging against the state of Michigan this week, calling the state’s environmental agency “dismissive, misleading and unresponsive” in an op-ed and asserting that the water crisis in Flint was the consequence of a money-saving scheme. But documents obtained under the Freedom of Information Act paint a more nuanced image of the relationship between the federal agency and its state counterpart.

U.S. EPA Administrator Gina McCarthy came out swinging against the state of Michigan this week, calling the state’s environmental agency "dismissive, misleading and unresponsive" in an op-ed and asserting that the water crisis in Flint was the consequence of a money-saving scheme.

But documents obtained under the Freedom of Information Act paint a more nuanced image of the relationship between the federal agency and its state counterpart. Communications between EPA Region 5 officials in Chicago and headquarters in Washington, D.C., show that the agency’s top leaders were often hesitant to meddle in the affairs of the Michigan Department of Environmental Quality, questioning whether it was EPA’s "role" to have a physical presence in Flint after the water was deemed unsafe.

E&E Daily obtained 1,200 pages of documents from EPA, including emails and attachments sent to or from McCarthy dealing with Flint’s drinking water. Several of the emails, if not entire pages, are redacted. Many are labeled as being nonresponsive to the public records requests.


Sept. 26, 2015, appears to have been a turning point in McCarthy’s understanding of the gravity of the lead contamination problems in Flint. By that time, the city had been struggling with poor water quality for 17 months.

"Seems like the Flint lead issue is really getting concerning," McCarthy wrote in an email.

The EPA administrator suggested that her No. 2, Stan Meiburg, schedule a meeting "to get everyone fully briefed and the history, where we are now and what needs to be done by whom."

McCarthy asked aides for options on how EPA could intervene. She wrote, "This situation has the opportunity to get very big very quickly."

In a separate message on Sept. 26, 2015, McCarthy told Meiburg that the onus was on Michigan to take charge. Former Michigan Department of Environmental Quality Director Dan Wyant told former Region 5 Administrator Susan Hedman in a conference call that the state would take steps to aid residents. The agency appeared reassured.

The city’s problems stem from switching its drinking water source to the Flint River. Wyant and EPA both agreed that returning to Detroit water would not solve corrosion problems faster than simply treating the existing Flint River water with orthophosphate, notes show.

‘State needs to step up’

Wyant’s decision to take action was "very encouraging," Meiburg wrote. McCarthy said she agreed. "Would seem to me that the state needs to step up here," McCarthy wrote on Sept. 27, 2015.

Should EPA intervene, Meiburg warned, it might not be so simple for the agency to take charge. "There will be some fraughtness with any of our intervention options, especially given the dynamic between the city and state over Flint’s financial condition, let alone other dynamics," Meiburg wrote.

The alternative was no better, McCarthy responded. "There is a danger if we do not weigh in as well," McCarthy wrote. "Doesn’t need to be formal but doing nothing is fraught as well."

Despite the growing alarm in late 2015, staff in Washington appeared to want to keep their distance. Though Flint’s Rep. Dan Kildee (D-Mich.) requested that EPA have a physical presence in the city to oversee MDEQ, Nichole Distefano, then-deputy associate administrator for congressional affairs, told McCarthy that a task force formed to address the Flint crisis "does not envision such a role." Instead, the agency would provide local regulators "significant access" to EPA expertise.

Region 5 staff were certain that MDEQ was not requiring Flint’s water treatment plant to use corrosion control by April, according to a timeline Hedman provided to Washington on Nov. 7, 2015.

Between April and October, Region 5 asked MDEQ six times to require corrosion-fighting chemicals, which would have prevented the leaching of lead from pipes into the tap water. MDEQ appeared to ignore EPA multiple times.

The officials also warned about Flint’s history of using water utility revenue for other projects. The past practices "complicate these discussions," Meiburg wrote in notes from a September 2015 conference call.

The agency released the newest documents a day before the EPA administrator is to testify before the House Oversight and Government Reform Committee on the Flint crisis.

EPA has come under withering criticism for its sluggish response, especially from Republican lawmakers on Capitol Hill. McCarthy has placed the blame squarely on Michigan state officials (E&E Daily, March 15).

First indications

McCarthy may have first heard about Flint’s drinking water problems from Hedman, who resigned earlier this year.

In an April 2015 email to McCarthy with the subject line "R5 Weekend Update: Brownfield and Drinking Water Issues in Flint, Michigan," Hedman recounted meeting with then-Flint Mayor Dayne Walling and Rep. Kildee to discuss the city’s problems.

Hedman noted that the city had switched its water source to the Flint River. That led some residents to complain "about odor and taste of the river water," she said. She also mentioned "an E. coli problem," which the city treated and about which it notified residents.

Though it’s not clear from the correspondence whether McCarthy knew about the lead poisoning at that point, she told a House committee last month that she first knew about Flint’s possible lack of corrosion preventions in April. EPA then "vigorously" recommended that the state implement such controls by adding products to change the water chemistry, she said (Greenwire, Feb. 11).

"Flint drinking water currently meets all applicable standards — but residents continue to complain," Hedman said in the email.

The regional chief said Walling had asked EPA to help by participating in a technical advisory committee, which the agency was doing, and that Kildee was asking Michigan Gov. Rick Snyder (R) to forgive Flint’s debt on its Drinking Water State Revolving Fund loans.

At that point last year, Miguel Del Toral, a Region 5 water official, was investigating high lead levels in the city’s drinking water. Del Toral would outline those findings in a memorandum last June. Hedman would later downplay its significance in an email to Walling (Greenwire, Jan. 26).

Hedman would update McCarthy again in an email sent Sept. 5 last year about the Flint mayor announcing that the city would be "taking immediate steps to reduce lead levels in drinking water."

Later that month, Thomas Burke, who heads up EPA’s Office of Research and Development, emailed McCarthy another update on Flint. He said his office’s scientists would offer help to improve the city’s drinking water as part of a technical committee. Burke also noted Del Toral’s memo, which detailed the high lead levels found in Flint’s water.

‘Controversy increased’

Hedman would provide another update on Sept. 26 last year, a Saturday, saying the "controversy surrounding lead levels in drinking water in Flint increased again this week," noting a report from local physicians finding that blood lead levels in a sample of Flint’s children had doubled since the city switched its water source to the Flint River. The Region 5 chief also said that "EPA’s involvement in this situation increased during the past week."

Other records obtained by E&E Daily under FOIA show that EPA’s top brass held a series of meetings starting in September last year to discuss the Flint crisis. Many were organized by Meiburg, EPA’s acting deputy administrator, according to the documents (Greenwire, March 8).

Comments from EPA’s fiercest critics on the Flint crisis reached the agency’s highest levels. Peter Grevatt, director of the agency’s Office of Groundwater and Drinking Water, shared with Meiburg an email from Marc Edwards, a professor and civil engineer at Virginia Tech, who helped uncover the high lead levels in Flint’s water and has since blasted EPA for its slow response.

"I believe that someone at HQ or in R5 should immediately take decisive action on this issue to protect the public," Edwards said in the email.

Michigan declared a public health emergency on Oct. 1, 2015 (Greenwire, Oct. 2, 2015). At the same time, records showed EPA was skeptical of a petition filed by the Natural Resources Defense Council, the American Civil Liberties Union and other groups the same week.

The groups asked the agency to use its emergency authority under the Safe Drinking Water Act to issue orders to require action in Flint, including reconnecting to Detroit water, adding corrosion controls, providing bottled water and advising residents not to drink from the city’s taps.

It "seems to me that [the petition] will fail to meet the jurisdictional prerequisites" under the Safe Drinking Water Act, since the state and the city had held a press conference promising to provide water, Hedman wrote.

EPA later changed course, eventually issuing an emergency order Jan. 21.

EPA did not respond to a request for comment.

Click here to see EPA’s documents on the Flint crisis.