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Snyder partly to blame for Flint crisis, UM report says

February 16, 2018 GMT

A portion of blame for Flint’s water crisis falls on Gov. Rick Snyder for his “failure to assure rigorous investigation by state agencies” charged with protecting people’s health, his lack of taking responsibility for their failures as well as not declaring an emergency sooner, according to a new report released by the University of Michigan School of Public Health.

The declaration comes from the “Learning from the Flint Water Crisis: Protecting the Public’s Health During a Financial Emergency” report, which also casts criticism on the Michigan Department of Environmental Quality for failing to “notify the public of Legionnaires’ disease outbreak and refused to cooperate with (the Genesee County Health Department)’s investigation.”

The report — funded by the Bethesda, Maryland-based de Beaumont Foundation, five UM public health lawyers and the Network for Public Health Law — said the governor “bears significant legal responsibility” for his role over the state agencies in charge of protecting public health.

“The governor had adequate legal authority to intervene by demanding more information from agency directors, reorganizing agencies to assure availability of appropriate expertise where needed, ordering state agencies to respond, or ultimately firing ineffective agency heads,” the report stated. “But he abjured, either due to ignorance or willful neglect of duty.”

The complaints from Flint residents were “not hidden from the governor” and “he had a responsibility to listen and respond,” the report added.

The city’s water crisis was caused by switching Flint’s water source from April 2014 to October 2015 to corrosive water from the Flint River. The switch was done to save the cash-strapped city money while under supervision of state-appointed emergency managers. The water contained elevated lead levels, poisoning the community who complained it smelled, tasted and looked funny. The governor didn’t declare a state of emergency over the crisis until January 2016, nearly three months after taking Flint off of river water.

Meanwhile, researchers believe the water conditions contributed to the growth of deadly Legionella bacteria, causing a two-year outbreak of Legionnaires’ disease cases in the Genesee County area.

The report also took to task emergency managers roles in the crisis as they “undermined the local government’s ability to respond to an emerging crisis. Once the emergency manager took over, city agencies could no longer act, although state, federal, and county agencies retained legal authority to intervene.”

“We have learned a great deal from the water crisis,” said Anna Heaton, a spokeswoman for Snyder, on Thursday. “And since then, the state has taken a proactive approach in working with communities statewide on water and infrastructure issues based on the recommendations of several different workgroups and task forces.”

The report came out after state Attorney General Bill Schuette filed involuntary manslaughter charges, among others, against Health and Human Services Director Nick Lyon and state Medical Executive Eden Wells. Their preliminary exam hearings that will let a judge decide in each case if they face trial are nearly completed.

The preliminary exam hearings, meanwhile, for MDEQ water regulators Stephen Busch, Michael Prysby and Patrick Cook as well as Liane Shekter Smith, the fired former head of the DEQ division responsible for overseeing Flint’s water source switch, just got underway last month. Former Emergency Manager Darnell Earley will have his preliminary hearing start in March while former Emergency Manager Gerald Ambrose decided to go straight to trial.

Andrea Bitely, a spokeswoman for Schuette, said she has not seen the report but that her boss and Special Prosecutor Todd Flood “are focused on our ongoing investigation and what went wrong in Flint and into the trial phase of these 13 individuals he has charged so far.”

The report took other agencies such as the Environmental Protection Agency at the federal level to the Flint Department of Public Works to task but not to the level of the governor and MDEQ.

“A conscientious response to the Flint water crisis requires more than finding fault. It demands critical examination of the legal, political, and societal contexts in which the crisis unfolded, and compels a comprehensive, prevention-focused response to the ensuing failures that endangered the public’s health,” the report stated.

The report stated that it agreed with Snyder’s task force that “MDEQ caused this crisis to happen when the department abdicated its essential and unique responsibilities as the state’s environmental health agency.”

The MDEQ previously admitted it failed to force the city to treat the water with corrosion controls, which caused old lead connections to leech. The state agency didn’t immediately respond for comment Thursday.

And that although several agencies had legal authority to intervene, “the Flint water crisis exposed jurisdictional gaps, overlaps, and inconsistencies in the state and federal legal frameworks that elicited confused and ultimately deleterious policy responses,” the report stated.

The report also uncovered oversights and redundancies in state law that created confusion about who had authority over the city’s water system, according to Peter Jacobson, the study’s author and professor emeritus of health law and policy at the UM School of Public Health.

“It was a very complicated array of laws that the state and county officials needed to interpret and then decide how to proceed,” Jacobson said Thursday. “There are a lot of gaps in the laws, a lot of overlap among these different legal regimes to protect safe drinking water.”

For example, Jacobson said, the Genesee County Health Department has responsibility for keeping the public safe from environmental hazards, but it has no responsibility over safe drinking water. That responsibility lies with the MDEQ and the EPA.

“And so, who has authority? What happens when one set of actors, or professionals, doesn’t do its job correctly — can public health step in, even if it lacks specific authority over safe drinking water?” Jacobson said. “Then once you figure that out, what happens with the appointment of an emergency financial manager whose authority, under Michigan law, supersedes all local authority.

“You have an emergency financial manager overseeing Flint, the Genesee County Health Department has jurisdiction over the whole county. So we start to see the overlaps and the gaps that led to, ultimately, confusion.”

Despite that confusion, state and local health officials could have done more to protect the residents of Flint, Jacobson said.

“Both the state and the local health departments didn’t use their full authority to mitigate the crisis — that’s one of the gaps,” he said. “The gaps result in part because of overlapping jurisdiction.

“The legal environment is far too complex when you have these very complex laws being implemented during the middle of a crisis.”

The study includes five pages of recommendations for clarifying Michigan laws and improving their implementation, including changing environmental laws to give local health departments a role in protecting safe drinking water.

“Our key recommendation is that Michigan’s emergency financial manager law needs to be changed to require Michigan’s public health before making financial decisions,” Jacobson said. “Had the emergency manager been required to take into account the public’s health, it may have avoided the whole crisis.”

Other recommendations include giving public health agencies roles in regulating public water systems since those agencies share responsibility for ensuring the public has access to safe drinking water. State law should also require public water systems to tell local health officials when they make significant changes to a water system, if water quality standards are violated or if there’s an outbreak of waterborne illness, the report suggests. And state environmental agencies should develop regulations to act on reports of waterborne disease outbreaks, for instance, by increasing monitoring requirements or changing how the water is treated.

The report comes on the heels of a study published last week that linked changes in Flint’s water to an outbreak of Legionnaires’ disease in 2014 and 2015. The study was conducted by the Flint Area Community Health and Environmental Partnership, a research team that includes scientists from Wayne State University, UM, Colorado State University and other institutions.

Published in the Proceedings of the National Academy of Sciences, the study found that the risk of acquiring Legionnaires’ disease increased more than six-fold across the Flint water distribution system after the city switched from the Detroit area water system’s Lake Huron source to the Flint River in April 2014.

Researchers said the increase in Legionnaires’ cases — which killed at least 12 people and sickened another 79 individuals over two years — “was consistent with a system-wide proliferation of Legionella bacteria.” The report estimated that 80 percent of Legionnaires’ cases during the outbreak can be attributed to the change in water supply.

lfleming@detroitnews.com

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Twitter: @leonardnfleming