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State admits Flint did not follow federal rules designed to keep lead out of water

Steve Carmody
Michigan Radio

The Michigan Department of Environmental Quality says Flint did not follow federal regulations for large water systems when it switched its source for drinking water.

"It’s increasingly clear there was confusion here, but it also is increasingly clear that DEQ staff believed they were using the proper federal protocol and they were not," MDEQ Director Dan Wyant said.

Internal emails show staff in the department misinterpreted the federal Lead and Copper Rule applying to larger water systems, which are required to "maintain" corrosion control.

Wyant has removed Liane Shekter Smith as head of the department's Office of Drinking Water and Municipal Assistance. She's been reassigned until a soon to be announced "independent, third party, after-action review" to detail what went wrong before Flint's water problems and why.

There has been some flip-flopping at the state levelon whether Flint has in fact implemented corrosion-control treatment, but ultimately, the consensus is that there was none.

When Flint switched its source for tap water from Detroit’s system to the Flint River in April 2014, the water flowing into the city's pipes and into people's homes was no longer treated to control corrosion. Water from Detroit came pre-treated, but when the city started pumping from the river, it didn't do any kind of corrosion control. This treatment helps keep lead and other metals from corroding from old service lines and pipes in people’s homes. Such treatment is required under federal law.

The rules are written by the U.S. Environmental Protection Agency. So far, the agency hasn't given a solid answer to that question: Did Flint violate federal drinking water regulations? One EPA spokesman wrote in an Oct.1 email: “Your inquiry is relatively complex.”

But emails Virgina Tech researcher Marc Edwards obtained under the Freedom of Information Act paint a clearer picture of the federal agency’s position.*

On June 10, the EPA and Michigan’s Department of Environmental Quality had a conference call. EPA's Miguel Del Toral provided DEQ with a summary of what he found at Flint resident Lee Anne Walters' home. Multiple tests showed Walters' home had extremely high lead levels.

The meeting notes say DEQ’s district supervisor, Steve Busch, pointed out that Flint was following federal rules.

But Del Toral noted that the rules were drafted more than 20 years ago. And since then “research and different situations, like Washington D.C., have educated scientists, experts, and regulators that the existing requirements … may not be as protective as previously thought.”

On July 21, the EPA and DEQ had another conference call. Before the call, DEQ's Liane Shekter Smith wrote in an email to the EPA:

“…While we understand your concerns with the overall implementation of the lead and copper rule(s); we think it is appropriate for EPA to indicate in writing (an email would be sufficient) your concurrence that the city is in compliance with the lead and copper rule as implemented in Michigan. This would help distinguish between our goals to address important public health issues separately from the compliance requirements of the actual rule which we believe have been and continue to be met in the city of Flint.”

The meeting notes from this conference call, later that afternoon, are more telling of the federal agency’s position.

EPA staff note federal regulations require the state to “review and approve” any changes in corrosion-control treatment when a water system gets a new water source. The feds go on to say that they’ve talked to staff and attorneys at the agency’s headquarters and “believes” that systems “need to ‘maintain’ corrosion control.”

The notes say the EPA agreed to share its legal citations once a written opinion was shared. It doesn't appear that's happened yet.

Then there’s a list of “next steps” in the meeting notes from July 21. Here, the state basically agrees that Flint needs to treat to control corrosion as soon as possible. Flint will not be allowed to stop corrosion-control treatment when it switches water sources in 2016. And the state agrees that it will not allow another city water system to switch water sources without corrosion-control treatment, like it allowed Flint to do.

  • MDEQ “will have discussions with Flint to request that they start corrosion-control treatment as soon as possible.”
  • “MDEQ and (EPA) were in agreement that it is important to get phosphate addition (a form of corrosion-control treatment) going in Flint as soon as possible.”
  • “(EPA) commented that we now have a path forward for Flint despite a difference of opinion on whether the regulations required Flint to ‘maintain’ corrosion-control treatment when they started serving treated water from the Flint River.”
  • “MDEQ and (EPA) agreed that after Flint implements corrosion-control treatment, when they switch back to Lake Huron water, they will need to continue the corrosion-control treatment while conducting monitoring to determine if this treatment is optimized with the new Lake Huron water quality.”
  • “MDEQ and Region 5 agreed that other communities currently implementing corrosion-control treatment and change sources will need to continue to provide corrosion-control treatment and conduct monitoring to determine whether the treatment is optimized with the new source water quality.”

Three weeks later, on Aug. 10, the chief of the EPA region's drinking water office, Thomas Poy, emails officials at the state. He wants to know if Flint has “been approached about starting corrosion control sooner rather than later?”
Another week goes by before the state’s DEQ sends an official letter to Flint recommending treatment.

MDEQ’s Steve Busch says Flint has “until the end of the year to make a recommendation, but they are planning to have the treatment in place by Jan. 2016.”

On Aug. 31, there’s another conference call between EPA and Michigan’s DEQ.

They talk about the work of Virginia Tech’s Marc Edwards. Edwards’ tests have shown “serious” levels of lead in city water. The EPA’s Thomas Poy says “the results give further evidence that lead levels in Flint are trending upward.”

The meeting notes state the obvious, that Edwards’ data “is putting added pressure on MDEQ and EPA to ensure that Flint addresses their lack of corrosion-control treatment in an expedited manner” to protect people from lead exposure.

“EPA acknowledged that to delay installation of corrosion control treatment in Flint would likely cause even higher levels of lead over time as Flint’s many lead service lines (about 15,000) are continuously in contact with corrosive water.”

Two days later, EPA’s Poy follows up with DEQ staff, asking if Flint had decided yet if it would implement treatment.

The next day, Sept. 3, Flint makes the decision to treat for corrosion control. It’s not expected to cost much, since the feed lines at the water treatment plant are already in place. The city just needs different sized pumps, state officials said in emails.

In the end, Flint, or the state, or both, decided the city would switch back to Detroit's water system instead.

*Marc Edwards shared his FOIA request with Michigan Radio. When contacted about the FOIA, a DEQ spokesman shared the information as well.

Lindsey Smith is a Peabody Award-winning journalist currently leading the station's Amplify Team. She previously served as Michigan Public's Morning News Editor, Investigative Reporter and West Michigan Reporter.
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