As Bill Schuette, the attorney general of Michigan, announced criminal charges against three government workers in Flint’s water crisis, he pledged there would be more charges soon, saying, “We’ll go wherever the truth takes us — and, in this case, wherever the emails take us.”
Thousands of email messages, which were made public in the months since state authorities acknowledged lead contamination in the city’s water last fall, are at the center of the state’s case, and more messages may yet come to light as prosecutors appear likely to weigh possible charges against higher-level officials.
But even with an array of written evidence, legal experts and environmental lawyers say the 13 criminal charges announced lastweek in Flint are extremely rare, and some said prosecutors may face significant challenges proving them in court.
The charges — which include accusations of conspiring to manipulate water monitoring reports, tampering with reports on lead in the water, and misleading local and federal authorities about the safety of the water — are highly unusual because they were filed not only against a city employee who worked at Flint’s water plant but also against state water regulators who were assigned to keep track of what Flint was doing.
“In 40 years of working in this field, I cannot think of another time when a regulator was charged in this way — they are prosecuting the people who are supposed to be the watchdogs,” said Jane F. Barrett, a professor and director of the environmental law clinic at the University of Maryland, who has previously worked as a state and federal prosecutor on environmental cases.
“It’s one thing to say they were sloppy or negligent. But in terms of proving the conspiracy count, they have to have evidence that the defendants deliberately agreed to cover-up the seriousness of the problems with the drinking water supply,” she said.
Some legal experts suggested that the charges may have an effect beyond Flint or Michigan, raising a specter of criminal charges for regulators. “People are going to sit up straighter in their chairs,” said Mark N. Templeton, an associate clinical professor of law and director of the Abrams Environmental Law Clinic at the University of Chicago Law School. “They may need additional resources and training as well,” he added.
Some of the emails would appear to lay out a stark case. They include assurances that the water in Flint was being treated with an anti-corrosion chemical, when it was not. The failure to add that chemical allowed lead to leach from the pipes, resulting in dangerously high levels of lead in the water that led officials to finally advise residents to stop drinking it last fall.
Officials said unfiltered water was still not safe to drink, and the long-term effects of drinking the tainted water for more than a year remain a worry, particularly for parents of small children.
The only city worker charged so far in the Flint crisis is Michael Glasgow, the city’s laboratory and water quality supervisor, who is accused of tampering with evidence — lead testing reports — and willfully neglecting his duty.
The arrest of Mr. Glasgow, 40, came as a surprise to some, largely because he had cooperated with authorities, and had personally sought water samples last year from a home that was reporting high levels of lead. Mr. Glasgow also had voiced early concerns about switching the city’s drinking water away from Detroit’s water system to a new source in 2014, the event that set off the crisis that left residents drinking odd-smelling, foul-looking, lead-tainted water for months.
Robert Harrison, a lawyer for Mr. Glasgow, said he could not comment on the specific charges, but described his client as “an honest, decent person” who had spent years working for the city of Flint and had worked his way up from the bottom.
“Criminal charges against Mike are difficult to understand, given what Mike did in this case,” Mr. Harrison said. “Not only was Mike strongly and publicly opposed to the transfer of the water system away from the Detroit system, but Mike voluntarily met with, and spoke with, numerous investigators from the attorney general’s office and the Genesee prosecutor’s office on several occasions.”
In an email Mr. Glasgow sent to state regulators a little more than a week before Flint was to switch from its water supply to a new source, the Flint River, he expressed doubts about the monitoring of water safety and the training of workers at the Flint water plant.
This April 2014 email, sent by Michael Glasgow just days before Flint made the switch to a new water source, suggests that the system was not ready and that he had concerns. (Source: Michigan Senate Democrats)
Days after Mr. Glasgow’s 2014 warnings about switching sources, the city went ahead with its plans, and Mr. Glasgow was quoted reassuring residents in a news release, drafts of which were emailed around the city and state. In the draft release, Michael Prysby, a state worker charged in the Flint case, promised that whatever doubts residents had about the river — seen among residents historically as a grimy dumping place for Flint industries — the state had deemed its water safe to drink.
This draft of a Flint press release, about the switch to a new water source, is dated several days after Michael Glasgow's note of concern. No signs of concern are noted in the release. (Source: Michigan Senate Democrats)
Mr. Prysby, a water engineer with the Michigan Department of Environmental Quality, has entered a not guilty plea in the case, as has Stephen Busch, a water supervisor with the state environmental quality department. Lawyers for both men did not return phone messages.
Charges against Mr. Prysby, 53, and Mr. Busch, 40, include misconduct in office, accusing them of knowingly misleading federal and county officials about whether the water was safe, as well as conspiring to tamper with evidence and tampering with reports on lead.
The pair also are charged with failing to require the city of Flint to add chemicals to its new water supply to prevent lead from leaching from service lines, which is standard protocol for dealing with aged water systems; with improperly manipulating water-testing samples by directing residents to “pre-flush” their taps, which would decrease lead levels; and with failing to collect enough samples from homes that were known to have lead service lines.
Records show that lead tests were sometimes conducted on homes that were described on reports as having lead service lines — the lines most vulnerable to contamination and the best test of a system’s safety — but that actually had service lines made of materials other than lead. Such testing could have given other authorities and residents a false sense of security about lead levels.
As residents and some authorities were voicing alarm about the water supply in early to mid-2015, emails from Mr. Busch and Mr. Prysby suggested they were assuring others that all was well.
In February 2015, Mr. Busch told a concerned Environmental Protection Agency official, who was asking about some high lead findings, that Flint was indeed using chemicals to prevent leaching from the pipes, a process known as corrosion control, though the state now acknowledges that no such controls were in place at the time.
Here is an email from February 2015 in which Stephen Busch is responding to worries from the Environmental Protection Agency and stating that the city had a corrosion control program, or added chemicals that prevent leaching of dangerous metals like lead, in place. This turned out to be false. (Source: FlintWaterStudy.org)
A day earlier, Mr. Prysby seemed to play down high levels found at one Flint house, which belongs to LeeAnne Walters, offering explanations for why the alarming results may not have reflected a broader, Flint-wide problem, and suggesting that Ms. Walters flush her taps before retesting, a move that would temporarily lessen lead levels.
Michael Prysby seems to play down federal concerns about some high lead readings at the home of LeeAnne Walters, suggesting that the sample was an outlier and that the tap should be flushed -- a method that lowers the appearance of lead -- before retesting. (Source: FlintWaterStudy.org)
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