Flint water case no slam dunk for prosecutors
It was a chest-thumping moment for Michigan Attorney General Bill Schuette when he recently announced criminal charges against three people in the Flint water crisis. This was, the likely 2018 candidate for governor said, “only the beginning.”
But just as a high level of lead makes for bad water, a high level of politics makes for bad cases.
Prosecutors have targeted water officials with an assortment of felony and misdemeanor charges. The most serious allegations concern a 2015 report, “Lead and Copper Report and Consumer Notice of Lead Result.” City and state officials collected 71 lead level samples from homes, well short of the required 100. And two samples were left out of the final report — two that just happened to have “high-lead” readings that would have triggered public notice as showing “action levels” above 15 parts per billion.
Other allegations focus on advising residents to run or “pre-flush” their water before taking samples and other actions that allegedly helped reduce lead levels.
The most immediate problem with these cases is that this is a highly complex area of overlapping rules and jurisdictions. The reporting rules are rife with differing administrative interpretations and practices. For example, pre-flushing was permissible under state regulations that existed at the time of the crisis.
Then there is Mike Glasgow, the former laboratory and water quality supervisor who lives in Flint and now serves as the city’s utilities administrator. He faces a felony charge for allegedly tam- pering with evidence and a misdemeanor on willful neglect of duty. Yet Glasgow is seen by many as the one official who was aware of problems early on and tried to help when the crisis hit.
One of the most important pretrial fights is likely to be whether evidence can exclude the practices and status of drinking water outside Flint. Only nine states have safe levels of lead in their water: Alabama, Arkansas, Hawaii, Kentucky, Mississippi, Nevada, North Dakota, South Dakota and Tennessee, CNBC reported. Flint’s corrosion problems are common nationwide, and politicians do not want to spend the money needed to remove the pipes. Sound familiar?
The most serious allegations are directed at Michael Prysby, then an engineer with Michigan’s Department of Environmental Quality, and Stephen Busch, the district supervisor for the Office of Drinking Water. But they are likely to seek to show that what they did was not out of the norm — like the common practice of pre-flushing before sampling in order to avoid artificially high readings due to stagnant water.
As Schuette fulfills his promise to bring charges further up the ladder of state government, these challenges are likely to become even greater. Officials often rely on subordinates to interpret state and federal rules and practices. None of this means that criminal charges are improper, but the criminality may be far murkier than Schuette suggests.