Legal and Ethical Issues of the Flint Water Crisis

Legal & Ethical Environment of Public Administration

Introduction

This paper is written to delineate the legal and ethical issues that arose in the city of Flint, Michigan in 2014 during a public health crisis that left hundreds of thousands of residents exposed to harmful water toxins due to improper leadership, technical management, and water treatment methods.

Background

Plagued by decades of financial distress and a wide range of socio-economic issues, the city of Flint, Michigan was impacted by many factors that affected their quality of life and activities of daily living. Historically, the city of flint had been an industrial hub with the highest median income for young workers in the nation but in recent decades, the city fell to crisis due to socio-economic issue sues such as racism, disinvestment, employment, poverty, violence, depopulation, and food insecurity (Ruckhart et al.,2019 p.2).

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According to Ruckhart et al. (2019), about 43% of Flint residents lived in poverty, 45% were home renters, only 11% of residents had education attainment levels higher that high school diploma, and almost 13% of residents younger than 65 were without health insurance. Deteriorating housing and poor nutrition in flint also increased the risks of lead exposure.

In 2014, the source of Flint’s drinking water was switched from the treated Lake Huron water formerly provided by the Detroit Water and Sewer Department to a new source, the Flint River which lacked the proper water testing and treatment to prevent corrosion (Ruckhart et al, 2019).

 After switching to this new water source, the city noticed a rise in the lead levels in tap water above the action level of 15 ppb, the EPA’s non-health-based action level set as the feasibility goal. As long as 90% percent of the water system sample is below 15 ppb, it is in compliance with the EPA’s Lead and Copper rule (Ruckhart et al., 2019 p.2). The protective scales inside the pipes leading to the homes of flint residents were destabilized due to the lack of corrosion inhibitors. According to Ruckhart et al. (2019), this lack of corrosion inhibitors then mobilizes an increase of the concentration of lead in the water which then flowed to the already aging and water distribution system in use in the Flint.

According to Ruckhart et al. (2019), exposure to high levels of lead in childhood has been proven to result in serious damages to the brain and nervous system. Ruckhart et al. (2019) also cite that the exposure increases learning and behavioral problems, hearing and speech problems. For children, there are no known safe levels of lead exposure. Even the smallest exposure could lead to adverse health effects. For adults, being exposed to lead can also result in detrimental health effects. Adults exposed to lead could increase the risks of high blood pressure, heart disease, kidney disease, and reduce likelihood of fertility (Ruckhart et al., 2019)

In April 2014, shortly after switching the city’s water system from Lake Huron water to the Flint River in efforts to cut spending, the city officials began to receive concerns in regard to the color, tastes, and odd smell of their drinking water. (Ruckhart et al., 2019) Concerns also rose about physical changes experienced. Residents complained about bodily rashes, and sicknesses. In response to these complaints, the City of Flint issued a health advisory message to residents citing that they boil their water before consumption. They also boosted chlorine levels in the waters. By 2015, another health advisory message was issued by the city due to its finding of high trihalomethane, a carcinogenic disinfection by-product which had exceeded federal limits (Ruckhart, et al., 2019, p.3).

In January 2015, after testing water samples from the Flint River, scientists at the University of Michigan-Flint concluded that there were elevated levels of lead in the water. Testing by an environmental engineer in from Virginia Tech came to similar conclusions citing that the concentration of lead in Flint’s water supply was almost 70 times more than the EPA drinking water action level. During this time, several health issues were reported in flint. There were two outbreaks of Legionnaires disease between 2014 and 2015 in connection with the switch in water source. 12 individuals died from this disease while 79 were reported as being ill (Massaro and Brooks, 2017, p.166). In late 2015, Doctors from Michigan State University reported an increase in the percentage of lead accumulation in the blood of children 5 years and younger after the switch of the city’s water source. After the report, the City of Flint issued another health advisory urging its residents to flush their tap water and use only cold water for drinking, cooking and preparing baby formula (Ruckhart et al., 2019).

According to Ruckhart et al. (2019), in October 2015, the Genesee County Health Department declared a public health emergency and shortly after, the Flint water systems was reconnected to the Detroit Water and Sewerage Department. Unfortunately, the level of corrosion in the pipes and plumbing system continuously released lead into the City’s drinking water.

Months following the County’s declaration of a public health emergency, the Mayor of Flint also declared a state of emergency. In 2016, President Barack Obama issued a Federal declaration of emergency assigning the United States Department of Health & Human Services as the primary coordinator for the city’s response and recovery efforts.

Ethical Issues

The Flint Water Crisis highlights a number of ethical issues that escalated the water crisis. First of the ethical issues that arose in this case was the replacement of the safe public water supply to Flint from Detroit’s Lake Huron. Done in efforts to cut city spending cost, this switch was done despite evidence that water from the Flint River was not safe for consumption or use. Officials, according to Massaro and Brooks (2017) also intentionally concealed data proving that the water was not safe and in respective of the fact that the Lake Huron water was still available for consumption. Research by Massaro and Brooks (2017) cite that switch to the use of water from the Flint River was one without adequate staff preparation, testing, or proper plant upgrades. Michigan Department of Environmental Quality (MDEQ) failed to require the city to provide upgrades to the water treatment facility in Flint to ensure that it was ready to provide clean, safe water for use and consumption (Michigan School of Public Health, 2018).

According to Schmidt (2018), the head of the Michigan Department of Environmental Quality (MDEQ) removed samples found to have violated federal laws and regulations from its original report. By omitting certain samples, the water sample tests would falsely show to have met the legal requirements. Schmidt (2018) also cited that the officials made several false statements in efforts to downplay the health risks of consuming water from the Flint River and declined to provide treatment to the contaminated water which would have cost only $150 per day (Massaro and Brooks, 2017, p.156). Citizens’ complaints on the smell, taste, and look of the water was also consistently dismissed by officials (Massaro and Brooks, 2017 p.162).

  Secondly, the Flint Water Treatment Plant (FWTP) failed to adhere to water quality standards set by the EPA. The Michigan Department of Environmental Quality blatantly ignored the standards outlined in the Lead and Copper rule and the Safe Drinking Water Act (Massaro and Brooks, 2017). They cited them as not required by the FWTP until after two six-month monitoring periods had passed. According to Massaro and Brooks (2017), the initial treatment made after switching from Lake Huron to the Flint River had three main problems. The first problem during the initial treatment was that the water was not treated with an orthophosphate– a chemical which helps to decrease corrosiveness and prevent leaching in lead pipes. Secondly, there was improper monitoring of and treatment of the water’s pH level. Finally, the city increased the levels of chloride in the water that already had a high chloride concentration rendering it even more corrosive and increasing its potential for health hazards.

The Michigan School of Public Health (2018) also found that there was high pressure on the Flint Department of Public Works (FDPW) to start the plans to distribute drinking water from the Flint River. FDPW staff knew and understood that the current system was neither prepared nor capable of distributing clean drinking water yet. The FDPW staff expressed their dissatisfaction of the situation but was promptly ignored by the MDEQ leaving the Flint public water system unable to provide clean water to residents from its initial launch.

Thirdly, the City’s sample collection method was skewed by City officials to provide more favorable results. During the water sampling process, Michigan’s Administrative Code sites that the water system that serves a city the size of Flint is required to provide at least 100 water samples from homes that have lead or copper pipes but only 60 was provided by MDEQ officials (Schmidt, 2018). MDEQ officials also acted unethically by instructing residents to pre-flush their taps before collecting the water samples. By flushing the water samples before collection, the lead captured in the samples are reduced. The City also did no properly select high-risk homes for sampling as required by the Lead and Copper rule (Michigan School of Public Health, 2018).

Finally, Flint residents were deprived of representation and accountability by their government. They had no input in the decisions being made which would ultimately affect their health and well-being (Massaro and Brooks, 2017).

Legal Violations

Legally, there are also a number of violations by officials in the Flint water crisis. The state failed to meet the minimum standards for safe tap water under the Safe Drinking Water Act of 1974 (SDWA). The SDWA is a federal law protecting drinking water from exposure to pollutants and contaminants. This law highlights the various mechanisms for regulations, funding, and improvements, and protection of underground sources. The act was violated in the city official’s failure to implement a proper water treatment program which would reduce the accumulationof corrosion (Calfas, 2016).

According to Schmidt (2018), Flint began violating the SDWA in 2013. After switching the water source, City officials chose to use old pipes from the Flint water treatment plant. Water from the Flint River which had not been used for over 40 years was kept as a source of back up water for the city of Flint. The only treatment this river received was a government mandated water softening four times a year (Schmidt, 2018, p.224) . Another legal violation by city officials in Flint was the misapplication of the Lead and Copper rule. Under this rule of law, the MDEQ is directly required to determine the existence of an optimized corrosion control in a water system. MDEQ improperly interpreted this law by waiting for two six-month monitoring periods before implementing any types of corrosion control treatment on the water system rather than immediately. MDEQ also misled the EPA for almost two months falsely citing that the city had implemented the rule when it had not (Michigan School of Public Health, 2018, p.24). It was not until April 2015, a year after that the MDEQ informed the EPA that there were no corrosion controls in place. By the time the EPA was informed, many of the residents in Flint had already affected by lead poisoning (Schmidt, 2018).

Flint residents sued the state of Michigan citing a violation of their Fourteenth Amendment right. They stated that the state failed to protect them from risks, dangers and dangerous situations due to its allocation of power to the Emergency Manager (Massaro and Brooks, 2017).

Decision Making Framework

Lewis & Gilman (2005) state in The Ethics Challenge in Public Service that public servants and public employees are best served using a fusion method. The fusion method merges compliance and integrity in decision making. The application of the proper decision making models could have yielded much better results of the people of Flint, Michigan. The main decision maker in Flint is the state appointed Emergency Manager. As a state appointee, the city’s decision-making powers lie primarily in his hands, taking up the responsibilities of elected officials. The main issue in Flint prior to the water crisis was the state’s poor financial situation. As a result of the city’s financial state, the Emergency Manager decided to search for an alternative to the city’s current supply that would alleviate the city of a major financial burden. To meet the immediate needs, the city decided that instead of purchasing already treated drinking water from Detroit’s Karegnondi Water Authority (KWA), they would use water from the Flint River using the city’s own water treatment facility. Unfortunately, this decision was made without getting complete information on the usability of the water source. The manager failed to review all necessary facts that would guarantee that the water was safe. There was no proof of water testing or pipe testing to ensure that the new source would meet the EPA’s water quality standards (Shen, 2019, p.1).

As the primary decision maker in this situation, the manager should have, prior to switching, ordered testing on the water from the Flint River, ensuring that it would be aligned with the quality levels as defined by the EPA. After proper review of all the facts on the Flint River water quality, the City’s Emergency Manager should have then laid out the options available and the consequences of each possible options. With results of the water quality testing in hand, the Emergency Manager and City Officials with understanding of their roles of public servants should then weigh all the possible options and potential outcomes of using this water source.

It would be clear then that their options would be either to continue negotiation and ultimately compromise and continue with the city’s current contract even if it was for a short period of time. This short term control would allow the city to still have access to clean water while the alternate water source was being tested and treated. Conversely, the emergency manager could have done as they ultimately did, by choosing to end the contract and switching almost immediately to the Flint River with little to no treatment of the water for quality assurance.

Choosing to negotiate and compromise on a short-term contract with the City of Detroit would although would be the most beneficial both health wise and financially in the long run, it would give Flint officials time to treat their own water source and ultimately pay for itself after the switch was established. The Emergency Manager could have also chosen like was ultimately done by choosing to end the contract and switching almost immediately to the Flint River with little to no treatment for health purposes. The result of this choice is what Flint, Michigan is currently experiencing with the exaggerated levels of lead in the city’s drinking water and in the body of its residents. At stake with each decision option are the fate of the Flint’s finances and the health of its residents.

Conclusion

The water crisis in Flint, Michigan is an example of poor decision making, and the lack of transparency by the city’s public officials. According to Public Service, Ethics, and Constitutional Practice, John Rohr cites the demand of openness on public administrators who are not only accountable to their executive superiors but also to Congress and the American people. In the case of Flint, there was a clear lack of proper discretion, transparency, and a poor decision making on the part of the emergency manager and the Michigan Department of Environmental Quality (MDEQ). The emergency manager chose to neglect the potentially harmful effects of choosing a water source that was not properly vetted or treated for potential harm over a more expensive option in efforts to cut costs and save the city some funds. As a public administrator and servant, the nucleus of his job lies in his service to the public and in this situation, the wrong decision costs him and the city much more than anticipated financially and health wise. The lack of proper oversight by the Michigan Department of Environmental Quality allowed these poor decision by the city officials to essentially speed up the impacts of the contaminated water on the health of Flint residents. Not only did they fail to require the city to upgrade its water treatment facilities before use, they also violated federal laws by omitting samples found to have violated federal laws from its water quality reports. Actions by both the emergency manager and Michigan State Department of Environmental Quality are both violation of ethical and federal laws in which parties involved should be severely penalized.

Works Cited

• Calfas, J. (Y2016, Jan. 27). New federal lawsuit alleges state violated safe drinking water act in flint. Michigan Radio . Retrieved from
• https://www.michiganradio.org/post/new-federal-lawsuit-alleges-state-violated-safe-drinking-water-act-flint
• Gilman, C.S., Lewis, W.C, (2005) The ethics challenge in public service – A problem solving guide. Retrieved from https://ubonline.ubalt.edu/access/content/group/1192PUAD627WB1/ereserves/PUAD_627_Lewis_Gilman_pp1_to_27.pdf
• Jacobson, D. P, Boufides, H.C, Bernstein, J., Chrysler, D., Citrini T. (2018). Learning from the flint water crisis: protecting the public’s health during a financial emergency. The Network for Public Health Law. Retrieved from https://www.networkforphl.org/_asset/v3txms/180191-SPH-Final-Project-Report-021218.pdf
• Massaro, T. M., & Brooks, E. E. (2017). Flint of Outrage. Notre Dame Law Review, (Issue 1), 155. Retrieved from https://search.ebscohost.com/login.aspx?direct=true&db=edshol&AN=edshol.hein.journals.tndl93.7&site=eds-live
• Rohr, J.A. (1998) Ethics, and constitutional practice. Retrieved from https://ubonline.ubalt.edu/access/content/group/1192PUAD627WB1/ereserves/PUAD_627_Rohr_pub_ser_eth_123_to_136.pdf
• Ruckart, P. Z., Ettinger, A. S., Hanna-Attisha, M., Jones, N., Davis, S. I., & Breysse, P. N. (2019). The Flint Water Crisis: A Coordinated Public Health Emergency Response and Recovery Initiative. Journal Of Public Health Management And Practice: JPHMP, 25 Suppl 1, Lead Poisoning Prevention, S84–S90. https://doi.org/10.1097/PHH.0000000000000871
• Schmidt. M. (2017-2018) Don’t drink the water: Why the safe drinking water act failed flint. Vermont Journal of Environmental Law, (Volume 19). Retrieved from http://vjel.vermontlaw.edu/files/2018/09/Schmidt_FP.pdf