Defense Counsel Journal

Conning the Newsletters: Lead in the Water – The Flint Water Crisis

January 20, 2020

Toxic and Hazardous Substances Litigation

Jim Shelson

Jim Shelson

Jim Shelson is a partner with Phelps Dunbar LLP in Jackson, Mississippi. His practice includes a broad array of challenging subject matter, often involving technical expert evidence in the areas of toxicology, epidemiology, medical science and causation. He also handles commercial disputes and first-party coverage litigation. Jim is licensed in Mississippi, Florida, and Alabama. He has substantial jury trial and appellate experience in both state and federal courts. He is also the author of a book about Mississippi chancery court practice.

This article originally appeared in the July 2016 Toxic and Hazardous Substances Litigation Committee newsletter.

A Short History of Flint

Flint is located along the Flint River, approximately 60 miles northwest of Detroit. It was founded as a village in 1819 by a fur trader, and incorporated as a city in 1855.¹1 https://en.wikipedia.org/wiki/Flint,_Michigan. “The Flint River provided the natural resources to create successful commerce in the 1800's for fur trading, lumber, the manufacture of carriages, and eventually the production of horseless carriages that led to the birth of the automotive industry.”²2 Eric Scorsone and Nicolette Bateson, Long-Term Crisis and Systemic failure: Taking the Financial Stress of America's Older Cities Seriously, Michigan State University Extension, September 2011, available at https://www.cityofflint.com/wp-content/uploads/Reports/MSUE_FlintStudy2011.pdf at 1. Buick Motor Company was founded in Flint in 1903.³3 Id. at 1. William Durant formed General Motors in Flint in 1908. “After World War II, Flint became an automobile manufacturing powerhouse for GM's Buick and Chevrolet divisions.”⁴4 https://en.wikipedia.org/wiki/Flint,_Michigan. The good times did not last.

Deindustrialization and other factors led to a dramatic population decline in Flint. “From a peak of more than 200,000 in 1960, Flint's population had fallen below 100,000 residents by 2014. Since 2000, Flint has lost over 20 percent of its population. Of the remaining residents, approximately 57 percent are Black or African American. Poverty is endemic in Flint, with 41.6 percent of the population living below federal poverty thresholds – 2.8 times the national poverty rate.”⁵5 Flint Water Advisory Task Force Final Report, available at https://www.michigan.gov/documents/snyder/FWATF_FINAL_REPORT_21March2016_517805_7.pdf at 15.

“The City was the focus of ‘Roger & Me,' a 1989 documentary directed by Michael Moore that examined the disappearance of auto industry jobs. Yet after the documentary, the jobs went right on vanishing. The city has hollowed out.”⁶6 Monica Davey, As Aid Floods Into Flint, a Fix Remains Far Off, The New York Times, March 6, 2016, http://www.nytimes.com/2016/03/06/us/as-aid-floods-into-flint-a-fix-remains-far-off.html?_r=0. In 1978, over 80,000 Flint-area residents were employed by GM, but the number of employees decreased to 23,000 by 1990, and to 8,000 in 2006.⁷7 Scorsone and Bateson, supra n. 2, at 1.

The Water Crisis

Flint's Water Treatment Plant was constructed in 1917. It used the Flint River as the primary water supply for Flint for approximately 50 years. “To ensure adequacy and reliability of water supplies, in 1967 Flint signed a long-term contract with the Detroit Water and Sewerage Department (DWSD) . . . . DWSD's water supply has been treated for corrosion control for over 20 years and is deemed optimized for corrosion control treatment.”⁸8 Flint Water Advisory Task Force Final Report, supra n. 5, at 15-16. The Detroit water system was supplied by Lake Huron.

Michigan law allows the state to appoint an Emergency Manager to run municipalities that are in financial distress. Emergency Managers have complete control and authority over municipal decisions. “Since 2011, the City has been under some form of state-ordered and controlled emergency financial management.”⁹9 Id. at 39.

While under emergency management, Flint's contract with DWSD was terminated, and its water supply was switched from Lake Huron to the Flint River.¹⁰10 Detroit was also under emergency management at the time. In April 2014, Flint began distributing water from the Flint River to its residents.

In a disastrous (and incorrect) decision, the Michigan Department of Environmental Quality (MDEQ) determined that the water did not have to immediately be treated with corrosion control. Instead, MDEQ determined that Flint “could complete two 6-month monitoring periods and MDEQ would then determine whether corrosion control was necessary.”¹¹11 Flint Water Advisory Task Force Final Report, supra n. 5, at 16. This decision “led directly to the contamination of the Flint water system.”¹²12 Flint Water Advisory Task Force, Letter to Governor Snyder, December 29, 2015, available at www.flintwaterstudy.org/wp-content/uploads/2015/12/FWATF-SnyderLetter-12-29-15.pdf.

Water from the Flint River is highly corrosive to iron and lead, and these pipe materials are widely used throughout Flint. Water from the Flint River water has about 8 times more chloride in it than Detroit water.¹³13 Why is it possible that Flint River water cannot be treated to meet Federal Standards?, http://flintwaterstudy.org/tag/drinking-water/. Moreover, “iron corrosion consumes chlorine. Chlorine is added to the water to prevent growth of microorganisms that cause disease.”¹⁴14 Id.

“[U]tilities treat their water to maintain a mineral crust on the inside surfaces of their pipes. This so-called passivation layer protects the pipes' metal from oxidants in the water. The coatings consist, in part, of insoluble oxidized metal compounds produced as the pipe slowly corrodes. If the water's chemistry isn't optimized, then the passivation layer may start to dissolve, or mineral particles may begin to flake off of the pipe's crust. This exposes bare metal, allowing the iron, lead, or copper to oxidize and leach into the water . . . . Most important, the treated Flint River water lacked one chemical that the treated Detroit water had: phosphate . . . . Cities such as Detroit add orthophosphate to their water as part of their corrosion control plans because the compound encourages the formation of lead phosphates, which are largely insoluble and can add to the pipes' passivation layer.”¹⁵15 Michael Torrice, How Lead Ended Up in Flint's Tap Water, Chemical & Engineering News, Vol. 94 Issue 7 (2016), available at http://cen.acs.org/articles/94/i7/Lead-Ended-Flints-Tap-Water.html. In sum, the failure to use orthophosphate to prevent corrosion of Flint's aging pipes allowed lead to leach into the drinking water.¹⁶16 See also https://www.epa.gov/ground-water-and-drinking-water/basic-information-about-lead-drinking-water.

Soon after the City began distributing water from the Flint River, “residents began to complain about its odor, taste and appearance.” In August 2014, a boil water advisory was issued after E. coli bacteria was detected in Flint's water. In October 2014, GM ceased using Flint water at its facility in Flint “due to corrosion concerns related to chloride levels in water.”¹⁷17 Flint Water Advisory Task Force Final Report, supra n. 5, at 16-17. The water was corroding auto parts. In January 2015, due to water quality concerns, the state installed water coolers in state offices in Flint, giving state employees the option to use bottled water.¹⁸18 Id. at 18.

In February 2015, the EPA was made aware of a water sampling showing a high lead level at a Flint home. “In August and September 2015, Virginia Tech researchers published the results of hundreds of tap water tests completed in Flint, showing lead levels that far exceeded those reported by state officials.” A local pediatrician, Mona Hanna-Attisha, “independently evaluated the blood lead levels of children in Flint in September 2015 . . . . She found that the percentage of Flint's kids who suffered from elevated blood lead levels had doubled since the water supply was switched from Lake Huron to the Flint River.”¹⁹19 Erik Olson and Kristi Pullen Fedinick, What's In Your Water? Flint And Beyond, June 2016 National Resources Defense Council Report, at 9-10, available at https://www.nrdc.org/sites/default/files/whats-in-your-water-flint-beyond-report.pdf.

In an op-ed piece in The New York Times, Dr. Hanna-Attisha would later write, “to understand the contamination of this city, think about drinking water through a straw coated in lead. As you sip, lead particles flake off into the water and are ingested. Flint's children have been drinking water through lead-coated straws.”²⁰20 Mona Hanna-Attisha, The Future for Flint's Children, The New York Times, March 27, 2016, http://www.nytimes.com/2016/03/27/opinion/sunday/the-future-for-flints-children.html?_r=0.

In October 2015, Flint switched back to the Detroit water system.²¹21 Olson and Fedinick, supra n. 19, at 9-10.

On October 21, 2015, the Governor of Michigan appointed an independent task force – the Flint Water Advisory Task Force (FWATF) – to conduct “an independent review of the contamination of the Flint water supply: what happened, why it occurred, and what is needed to prevent a reoccurrence in Flint or elsewhere in the state.” The FWATF concluded that a series of government failures caused the water crisis:

The Flint water crisis is a story of government failure, intransigence, unpreparedness, delay, inaction, and environmental injustice. The [MDEQ] failed in its fundamental responsibility to effectively enforce drinking water regulations. The Michigan Department of Health and Human Services failed to adequately and promptly act to protect public health. Both agencies, but principally the MDEQ, stubbornly worked to discredit and dismiss others' attempts to bring the issues of unsafe water, lead contamination, and increased cases of Legionellosis (Legionnaires' disease) to light. With the City of Flint under emergency management, the Flint Water Department rushed unprepared into fulltime operation of the Flint Water Treatment Plant, drawing water from a highly corrosive source without the use of corrosion control. Though MDEQ was delegated primacy (authority to enforce federal law), the United States Environmental Protection Agency delayed enforcement of the Safe Drinking Water Act and Lead and Copper Rule, thereby prolonging the calamity. Neither the Governor nor the Governor's office took steps to reverse poor decisions by MDEQ and state-appointed emergency managers until October 2015, in spite of mounting problems and suggestions to do so by senior staff members in the Governor's office, in part because of continued reassurances from MDEQ that the water was safe. The significant consequences of these failures for Flint will be long-lasting. They have deeply affected Flint's public health, its economic future, and residents' trust in government.

The Flint water crisis has generated a massive amount of litigation. The litigation includes class action lawsuits against the State and City, a lawsuit by the State against environmental consultants regarding work they performed related to Flint's drinking water, a citizen suit by the National Resources Defense Council (“NRDC”) and ACLU, and criminal charges.²²22 Flint Water Advisory Task Force Final Report, supra n. 5, at 1.

The Safe Drinking Water Act and the Lead and Copper Rule

The federal Safe Drinking Water Act23 was enacted in 1974. It governs the regulation of drinking water throughout the United States. It has been amended multiple times, most recently in 2015.²⁴24 Flint Water Advisory Task Force Final Report, supra n. 5, at 22.

The Safe Drinking Water Act “requires the EPA to set a health-based maximum contaminant level goal (MCLG) that is fully protective of health for each drinking water contaminant . . . . The agency must then establish maximum allowable levels of the contaminant, or maximum contaminant levels (MCL), as close to the MCLG as feasible, considering technological limitations and costs. In other words, the EPA sets a limit for what can be considered fully safe in drinking water, and then sets another … standard for tap water” to account for feasibility and costs.²⁵25 Olson and Fedinick, supra n.19, at 12.

The MCLG for lead in water is 0 parts per billion (ppb), but the action level for lead under the Lead and Copper Rule, discussed below, is 15 ppb.²⁶26 Id. at 22.

“In 1991, the EPA established the Lead and Copper Rule, a complex treatment technique to control lead levels in tap water . . . . [U]nder the Lead and Copper Rule, all water systems serving more than 50,000 people must either treat their water to ‘optimize corrosion control,' or demonstrate that they don't need to do so because their water isn't corrosive and they have no lead problems. The Lead and Copper Rule generally requires water systems to add a corrosion inhibitor, such as orthophosphate, which controls corrosion and coats the inside of the pipes with a thin film that can reduce the amount of lead that leaches into the water.”²⁷27 Id. at 22.

Under the Lead and Copper Rule,²⁸28 See https://www.epa.gov/dwreginfo/lead-and-copper-rule and 40 C.F.R. Part 141. if more than 10 percent of the tested taps contain lead above the action level of 15 ppb, then the water system must take measures to reduce lead levels.²⁹29 Olson and Fedinick, supra n.19, at 22. In other words, the Lead and Copper Rule mandates only “that the 90th percentile, or the 90th highest sample of 100, tests below 15 ppb.”³⁰30 Anna Wolfe, 6 things to know about the lead water in Jackson, The Clarion-Ledger, March 18, 2016, http://www.clarionledger.com/story/news/local/2016/03/17/5-things-know-lead-water-jackson/81830278/. Thus, “a water system can stay in compliance no matter how high – 100, 1,000 or 10,000 [ppb] – the top 10 percent of the samples are, as long as 90 percent fall below 15 ppb.”³¹31 Id. In Flint, the 90th percentile was 25 ppb, meaning ten percent of 252 samples exceeded 25 ppb.”³²32 Id.

The Lead and Copper Rule is currently undergoing revision, which could result in a new proposed rule in 2017.

Aging lead pipe infrastructure is not unique to Flint

“Cities no longer install lead pipes. But older cities such as Flint still rely on them, usually as service lines that connect water mains in the street to a home's water meter. A 1990 report from the American Water Works Association estimates there are millions of lead service lines in the U.S.”³³33 Torrice, supra n. 15.

“Lead pipes installed in cities 100 or more years ago need to be replaced, sooner rather than later. Flint, Michigan is certainly not the first U.S. city to see its water contaminated by aging pipes. And, unless the many American cities with aging lead pipes get to work quickly, it will not be the last, either. The poisoned tap water of Flint serves as a warning sign to city officials throughout the U.S: Lead pipes installed in cities 100 or more years ago need to be replaced. Lead pipes are prevalent in cities that were developed in the 19th and early 20th centuries, meaning all the major metropolitan areas in the Northeast, Midwest, and California . . . . In Philadelphia alone, there could be 50,000 lead service lines . . . . Replacing service lines nationwide would cost billions of dollars.³⁴34 Rob Curran, Flint's Water Crisis Should Raise Alarms for America's Aging Cities, Fortune, January 25, 2016, available at http://fortune.com/2016/01/25/flint-water-crisis-america-aging-cities-lead-pipes/.

Compounding the problem, in many instances, cities cannot even locate their lead water lines. “Hundreds of cities across the country, including many in metro Detroit and across the state, can't locate all their lead water lines, meaning regular water tests could be missing the homes most likely to experience lead problems.”³⁵35 John Wisely and Todd Spangler, Where are the lead pipes? In many cities, we just don't know, Detroit Free Press, February 28, 2016, available at http://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/02/27/lead-water-lines-lurk-unknown-many-cities/80551724/.

An analysis by the NRDC found that in 2015, “over 18 million people were served by 5,363 community water systems that violated the Lead and Copper Rule.”³⁶36 Olson and Fedinick, supra n.19, at 5. A 2016 study by USA Today “identified almost 2,000 . . . water systems spanning all 50 states where testing has shown excessive levels of lead contamination over the past four years.”³⁷37 Allison Young and Mark Nichols, Beyond Flint: Excessive lead levels found in almost 2,000 water systems across all 50 states, USA Today, March 11, 2016, available at http://www.usatoday.com/story/news/2016/03/11/nearly-2000-water-systems-fail-lead-tests/81220466/.

Aging lead pipe infrastructure is a problem that will not soon be solved.

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