Todd Spangler, Matthew Dolan, and Keith Matheny

Detroit Free Press

WASHINGTON – The U.S. Environmental Protection Agency came under heavy fire Tuesday for its handling of high levels of lead in Flint’s drinking water, with an expert on lead contamination calling it “completely unacceptable and criminal, frankly” even as the EPA’s former Midwest administrator claimed her agency was not at fault for what happened.

“I don’t think anyone at the EPA did anything wrong, but I do believe we could have done more,” former EPA Region 5 Administrator Susan Hedman told stunned members of the U.S. House Oversight and Government Reform Committee holding their second hearing into the Flint water crisis Tuesday, with several criticizing her stance that the agency doesn’t share in at least some of the responsibility.

While Hedman, who resigned Feb. 1 amid fallout from the crisis, defended the agency, Marc Edwards, a leading expert in lead contamination and professor at Virginia Tech University, called hers and EPA’s slow response to warnings signs in Flint “willful blindness,” blaming longstanding bureaucratic rules which allow municipalities to skirt lead testing rules. He called the agency “completely unrepentant and unable to learn from their mistakes.”

“EPA had everything to do with creating Flint,” Edwards said, adding later, “She did nothing to protect Flint’s children.” While the federal agency put out a laundry list of actions it has taken in Flint in response to the accusations — noting that Michigan Gov. Rick Snyder’s task force found state regulators primarily at fault — the committee chairman, U.S. Rep. Jason Chaffetz, R-Utah, called Hedman’s defense of EPA’s response “laughable” and “fundamentally, totally wrong.”

The House Oversight Committee will continue its hearings on Flint on Thursday, when Snyder and top EPA Administrator Gina McCarthy are called to testify, but Tuesday’s hearings provided a road map for how they might go, with Democrats sharply questioning Darnell Earley, Snyder’s handpicked emergency manager in Flint, and Republicans criticizing Hedman.

In his testimony, Earley said that as emergency manager when Flint switched water sources in April 2014, he had nothing to do with earlier decisions made to use the Flint River, which in part led to the problem. He said he relied on the advice of local officials — including former Flint Mayor Dayne Walling, who also testified — whom he said never petitioned him to stop the decision and the Michigan Department of Environmental Quality, which told him it was safe.

U.S. Rep. Elijah Cummings of Maryland, the committee’s top Democrat, found it unconvincing, however, when Earley said in his testimony that he wasn’t alarmed by General Motors' decision not to use Flint’s water because it was corroding parts. Said Cummings: “A 5-year-old could figure that one out.”

Earley said he was let down by the decisions, too, and regrets the situation in Flint.

“Many other communities are just one expert’s mistake away from another Flint water crisis,” he said.

DEQ faulted

Hedman, meanwhile, continued EPA’s contention that blame lies squarely on the MDEQ for not requiring corrosion-control treatments when the city switched to using the Flint River, since it was that decision which allowed lead to leach from old pipes throughout the city into residents’ taps.

But while MDEQ had admitted that mistake, EPA — which is responsible for enforcing federal drinking water laws — has been roundly criticized for not moving faster to respond, since officials in its Region 5 office in Chicago, where Hedman was in charge, first found out about high lead levels in one Flint home last February and learned as long ago as last April that Flint wasn’t requiring corrosion control, six months before it was finally implemented.

“What’s sickening about this is it was totally avoidable. … It’s almost unbelievable how many bad decisions were made,” Chaffetz said. “The EPA had every opportunity to make the right move here and they didn’t. … They had the information and they would not release it to the public.”

In her testimony, Hedman said neither she nor EPA had anything to do with the conditions that resulted in high levels of lead in Flint’s drinking water and that as soon as she learned about the state’s not requiring corrosion control in June of last year, the agency moved to force the state’s hand and begin warning residents about the possible dangers. She added that she only resigned this year because the Flint crisis happened on her watch and that accusations that she had somehow downplayed the lead levels made her continuing as administrator a distraction.

But her contention that EPA moved in late June to require corrosion control isn’t entirely borne out by the record: While it was clear by then that Hedman and other top officials were concerned about the lack of corrosion control, it was only at a meeting three weeks later, in late July, when the MDEQ said that a second round of lead monitoring indicated corrosion control was necessary. Notes from that meeting did not indicate that the federal agency had ordered the state to do so.

In any event, those treatments wouldn’t be ordered by the state until August and not implemented until later in the fall. In late January, the EPA – after President Barack Obama had signed an emergency declaration for Flint — finally signed an order taking over testing in Flint and forcing the state and the city to take certain actions.

“Why, in July or August, did you not just yell or scream, ‘Stop this! Drink bottled water?’” asked U.S. Rep. Ted Lieu, D-Calif. “To me, this is negligence bordering on deliberate indifference.”

“In retrospect, knowing what I know now, I wish we had issued more urgent, and more frequent” public notices, Hedman said, though she also maintained that, through spring and summer of last year, “we repeatedly, emphatically and urgently told MDEQ that is was important to implement corrosion control” even if those notices are not seen in what are now tens of thousands of e-mails made public.

Edwards, on the other hand, said it was he and his fellow university researchers who issued the first warning to Flint residents not to drink the water in August 2015 and were met with a rebuttal by DEQ officials, who maintained the water was safe. That rebuttal cited the EPA, Edwards said.

EPA faulted for silence

“EPA sat silent, at a minimum, as the state attacked us for saying the water was unsafe to drink,” Edwards said.

Hedman maintained EPA reacted appropriately but that its hands were somewhat tied by an “imperfect statutory framework” in which officials believed if they tried to act more aggressively sooner, the state would have made a legal argument that could have delayed any action to put corrosion control in place.

“I was less concerned about losing a legal argument than about the length of time it might take to resolve it,” she said.

“The EPA didn’t do what it needed to do,” said U.S. Rep. Tim Walberg, R-Tipton, who along with U.S. Reps. Justin Amash, R-Cascade Township, and Brenda Lawrence, D-Southfield, are the only Michigan members of the panel.

In their questioning, Amash asked Earley why he didn’t second-guess questions about the safety of the water supply more thoroughly and Lawrence decried the blame game going on, saying, “This is a point where each of you should stand up and accept responsibility.”

As the hearing got under way, Chaffetz noted that at least one EPA employee — Region 5 regulations manager Miguel Del Toral — tried to raise warnings about lead levels in Flint after learning of samples taken at LeeAnne Walters’ home last Feburary.

A lack of support?

Initially, the MDEQ suggested it had a corrosion-control program in place, but by April, it had acknowledged it was instead conducting initial monitoring at a number of sample sites — which showed the city well under the action level of 15 parts per billion — before deciding on whether to put corrosion control in place. Del Toral responded by telling the state it needed corrosion control immediately — but there was no clear support from the rest of Region 5 backing him up.

Instead, Chaffetz read e-mails from Del Toral suggesting he was later disciplined for providing to Walters a copy of his draft report indicating high levels at her home could portend high lead levels across the city, a report which was leaked to the media and helped spark public attention into the crisis. Hedman denied that at any point was Del Toral disciplined and called him a "hero" in this case.



In an e-mail released by the committee from Del Toral in September to other EPA officials as word of high lead levels found by Edwards’ team in Flint began to spread, he wrote: “This is no surprise: Lead lines + no treatment = high lead in water = lead poisoned children.”

In that same e-mail, on Sept. 22, 2015, Del Toral openly criticized EPA’s handling of the situation, saying the agency appeared more concerned with “trying to maintain state/local relationships than we do trying to protect the children.”

He also specifically raised the question of sampling protocols for lead in Flint and whether the EPA had previously allowed Flint and the city to avoid meeting federal rules on lead reporting forms, which could have potentially caught the problem earlier. Reporting by the Free Press indicated it had done so.

Del Toral said he had little doubt that the problems seen at some homes in Flint evidenced a larger problem, even if the city had never exceeded the 15 ppb action level for the top 10% of homes tested.

“I said this from the very beginning and I will say this again … you don’t have to drop a bowling ball off of every building in every city to prove that gravity (and science) will work the same way everywhere. It’s basic chemistry,” he wrote. It was still two months before the EPA issued a nationwide memo reacting to the state’s failure to require corrosion control treatments up front and four months before an emergency order was issued in Flint.

Del Toral's e-mail was not the only embarrassment for the agency at the hearing: Chaffetz opened it by showing a 2015 TV clip of former Flint Mayor Walling, who also testified at the hearing, in which he said he believed the water was safe to drink after having communicated with Hedman about Del Toral’s draft report — which outlined the potential scope of the problem and which she had maintained should not have been released.

'Work with the state'

Chaffetz also revealed an e-mail — the context of what was not immediately known — in which EPA officials in Region 5 said, “I’m not sure Flint is the community we want to go out on a limb for.” In yet another e-mail, from July 9 — around the time Hedman said Region 5 was beginning to crack down on MDEQ — Jennifer Crooks, the EPA’s Michigan program manager in Chicago, urged other agency officials “to move forward and work with the state as our partner.”

As "the state sees the lead levels climbing, I don’t see the benefit in rubbing their nose in the fact that we’re right and they’re wrong (about corrosion control),” she wrote. It would be months more before corrosion control was finally implemented.

Following the hearing, EPA responded to a number of accusations raised by Edwards and others at the hearing, saying “because none of them work for the agency, further context to their comments is important.” It noted that the state’s own task force on Flint put blame for the water crisis on the MDEQ and that in July of last year the EPA began urging residents to have their tap water tested.

With Snyder up Thursday before the committee, he and his closest officials were brought up at Tuesday’s hearing as well. For instance, Cummings, the panel’s top Democrat, said committee staff had interviewed former DEQ head Dan Wyant privately last week, but that he was “a very difficult witness who evaded many of our questions.”

“Last December, he apologized to the people of Flint but he was not remorseful or apologetic in his interview with the committee," said Cummings. “In fact, he disputed almost everything the governor’s task force (which concluded DEQ’s mistakes led to the problems in Flint) concluded about his failures.”

Cummings also said he was surprised to hear Wyant said that at no time did Flint’s poor water quality become a topic of discussion inside Snyder’s cabinet of top advisers. Committee Democrats on Tuesday also asked Earley — a Snyder appointee who later became emergency manager for Detroit Public Schools — discussed with Snyder an earlier request that Earley testify, which he declined.

Earley said he did but the governor's office did not advise him whether to testify or not. Democrats seemed surprised that the governor would not have urged him to testify but Earley said he could not have made it to the earlier hearing and needed time to prepare.

Contact Todd Spangler: 703-854-8947 or tspangler@freepress.com. Follow him on Twitter at @tsspangler.