The FLINT Case: Responsibilities and Responses

What happened and why, its impact on utility litigation and corrosion control

Steve Reiber Principal ReiCorr LLC sreiber@Comcast.net

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Agenda Part 1: Flint Status

• Background/Corrosion Control • Public health/toxicology • Regulatory • Litigation

Part 2: Strategic landscape - lead challenge for utilities

• Sources of lead in water • EPA’s Lead and Copper Rule (LCR) • Litigation over lead in water • Defenses for utilities

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Acknowledgements • Michigan Department of Environmental Quality • Michigan Department of Health and Human Services • Governors Flint Water Advisory Task Force • Centers for Disease Control (MMR 2016, Lead Re-Analyses

1995) • Bina Reddy and John Guttman, Beveridge and Diamond P.C. • Melinda Friedman, Confluence Group • Chris Hill, Arcadis • Damon Roth, Confluence

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• Environmental racism • Social Injustice • Government failure at all levels

• Drinking water more dangerous than a hazardous waste?

The “Flint Crisis” and the Media Narrative Claims of:

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A successful narrative needs victims, villains and heroes

“Post industrial” ?? Declining population/tax -base Economic extremis - Municipal

Bond rating lowered to “speculative range”

Substantial pension overhangs Chapter Nine Municipal

Bankruptcy?? Emergency manager appointed

by governor in 2011

Part One: A City with Serious Problems

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The Detroit Water and Sewer Department (DWSD)

Serves Detroit and 76 suburban communities (3.5 million people) Imports, treats and distributes Lake Huron/Detroit River water Contractual water service to Flint since 1967 (35 year contract obligation) Year to year contract since 2002 Wholesale rates have risen over 100% in the past decade Abruptly declined service to Flint in 2014 over KWA dispute

Karegnondi Water Authority (KWS)

A water supply organization representing communities in Genesee County Formed in response to rising water rates imposed by the DWSD Organized to build a system to import, treat and distribute lake Huron water Water delivery to begin 2016/2017. City council approval in 2013 Pipeline construction continues

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Flint Water Treatment Plant Source: the Flint River Served Flint as its sole source for sixty years prior to the 1967 DWSD conversion Designated as alternative/emergency supply since the 1980s Last supplied water to the whole of Flint in 2009 Plant substantially updated in early 2000s Treatment train includes:

• ozonation • Lime softening/enhanced coagulation • GAC caps • Filtration • Chlorination 7

Highly Variable pH output upon full-time conversion

Flint River - Fulltime Source Changeover in 2014

• DEQ required immediate LCR compliance monitoring: two rounds

• First round (June 2014): 90th percentile value of 6 ppb • Second round (Nov. 2014): 90th percentile value of 11 ppb

• Substantial number of “dirty water” complaints received soon after changeover

• Persistent Claims of foul smelling and dirty water from select home(s) – WQ analysis shows a one-time lead level > 100ppb.

• Further claims of skin rashes, nausea and other adverse health effects

• Reverts to DWSD water in late 2015

Did the MI DEQ require the City to have corrosion control in place when it switched to the Flint River as its fulltime source of drinking water?

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Flint Distribution System Issues Summer of 2014 The City was actively repairing the distribution

system (City personnel reported 29 water main breaks in June through August 2014).

After the switch to the Flint River, it was discovered that there more than 120 broken valves and 239 valves in an improper position.

Wide spread flow reversals As the City began correcting these problems,

presence of coliform organisms detected – boil water order

Excessive water age contributed to TTHM violations

Declining customer base Vacant homes and businesses Declining water usage leading to

excessive residence times (water age) Accelerating tuberculation, biofilm

growth, and reductions of disinfectant concentration in the distribution system.

550 miles of water mains over 75 years old -

mostly unlined cast iron piping. Heavy tuberculation High degree of sediment and debris

on the pipe walls - biofilm growth Difficulty maintaining disinfectant

residual

Aesthetic Issues related to: Distribution system construction Flow reversals Hydrant and system wide flushing

An abundance of lead service lines (>5000)

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There are as many kinds of corrosion as there are materials that corrode

Each may require a unique method to be effectively controlled

Corrosion Type Control Methods

Uniform corrosion • Carbonate passivation • Orthophosphate inhibitor addition

Pitting corrosion • pH and DIC control, PO4

Microbially-influenced corrosion (MIC) • Limit nutrients • Maintain adequate residual • Reduce stagnation/water age

Galvanic corrosion • Eliminate contact between dissimilar metals (e.g., Pb and DIP)

Erosion corrosion • Hydraulic controls

Other types: • Re-equilibration of scale • Adsorption and release

• Maintain stable distribution WQ • Enhanced treatment

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Water quality impacts rarely straightforward

Change in parameter

Expected Impact on various pipe materials

Pb Cu Fe

↑ pH ↓ ↓ ↓

↑ alkalinity ↓* ↓↑* ↓

↑ TDS ↑* ↑* ↑*

↑ DIC ↓* ↑* ↓

↑ NOM ↓↑ ↓↑ ↓

↑ chlorine ↓↑ ↓↑ ↓↑ ↑ chloride ↑ ↑ ↑↑ ↑ hardness ↓ ↓ ↓

* Varies with other water quality parameters.

Water Quality Changes at Conversion to FRW

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A Public Health Success: Lead Reduction • Blood lead levels (BLL) in

children have been going down in US for decades.

• US geometric mean 1.6 µg/dL • DC geometric mean 2.3 µg/dL • Flint geometric mean 3.2

ug/dL??

• Residual levels (not elevated BLLs) driven by:

• Legacy of leaded gasoline • Legacy of lead paint in dust • Secondary sources • Food

• All source lead (e.g. dust) exposure tends to drive the mean for the population.

NHANES:US, children

1-5 yo,

National average BLLs by time period

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Despite the judiciary’s general rejection of any models outside of the “dose makes the poison” framework, there is scientific evidence indicating that several categories of illness may be linked to non-threshold dose response curves. Lead exposure is likely one of these.

Why is Lead Still a Health Concern? (On-going Litigation is One Reason)

Why is Lead Still a Health Concern?

• Recent studies have changed perspective:

• Neurodevelopmental effects drive issue.

• Manifested as lower intelligence (IQ), impulsive behavior

• “No threshold” observation: “first molecule”

• Effect may be disproportionate at lower exposure levels.

• Overall, drinking water remains a minor source of intake.

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The Lead Case is not Closed?

Cognitive Function Regression Coefficients for Blood Lead Age > 4 years

and Outcome Age > 4 years

CDC, 2007

The Meta-Analyses remain in dispute over a variety of confounding factors – most importantly, socio-economic- status (SES)

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How Important is Drinking Water Lead?

Re-analyses by Marcus (1990) and Laxmen (1987) of the major studies on lead and drinking water (Edenborough and Hawaii) suggest that at sustained water lead levels above the action level (15 ppb), a one ppb increase in water lead is associated with an increase of between 0.02 and 0.03 mg/dL blood lead. There remains a range of uncertainty in the relationship between water lead and blood lead in older children CDC 1993

EPA estimated (1980s) that drinking water constituted about 20% of total lead exposure to children on a national level.

Level of Concern (LOC) was not a Toxicological (“Poison”) Threshold – but Often (Mistakenly) Treated as One

• CDC Position: “Because no threshold for adverse health effects in young children has been demonstrated, public health interventions should focus on eliminating all lead exposures in children. Lead concentrations in drinking water should be below the EPA action level of 15 ppb.”

• In 2012 the CDC abandoned the concept of LOC and instituted a reference index of 5ug/dl (97.5th percentile BLL level)

The LOC has been used as a environmental wedge issue

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What the MI DHHS said about Flint children’s BLL in 2015

The DHHS conducted Env. Epi. analysis as an immediate response to claims of “widespread lead poisoning” BLLs in children tend to rise in warm weather months:

“… a phenomenon that might be related to differential seasonal distribution of lead dust in houses as well as higher exposure to street dust associated with increased outdoor activity.“

Very young children consume more water per unit of body mass than do older children and adults, and they are more likely to engage in hand-to-mouth behaviors that put them at higher risk for exposure to lead in house dust and soil

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What the CDC Found Relative to Flint Childhood BLL (MMR, July 2016)

There was a statistically significant increase in younger children exceeding the new RI (5 ug/dL) in the summer of 2014 (3.2% to 4.9%) “…analysis demonstrates increased prevalence of BLLs ≥5 µg/dL coincident with the switch to FWS…” “…observational nature limits attribution exclusively to the switch in drinking water source….” “…exposure to other known sources of lead that might have contributed to a child’s probability of being exposed was not ascertained… “ “the decline in the proportion of BLLs ≥5 µg/dL after the switch back to DWA might have resulted, in part, to increased and continuing bottled water consumption rather than the switch back to DWA” “BLLs in children tend to rise in warm weather months” 21

CDC Observations on DC Lead “Crisis” Weight of evidence: “Lead in drinking water under circumstances encountered did appear to be associated with elevated BLL on a population basis. “

This does not necessarily mean that lead in drinking water is insignificant.

Levels encountered may not have been sufficiently high for an effect.

Intake and personal exposure is not reflected by sampling protocol under LCR. (However, LCR is an overestimate of personal exposure. )

Public health interventions may have prevented an effect from appearing.

Desirable to reduce lead exposure from any source.

3 to 5 percent increase in children exceeding LOC

Average BLL in childhood population has not changed?? Variability in individual scores makes it difficult to identify any single individual who has been impacted

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Litigation (Civil and Criminal) “Plaintiffs seek recovery from Defendants individually and on behalf of the tens of thousands of Flint residents (the “Class” or “Class Members”) for injuries, damages and losses suffered by the Plaintiffs, each of whom suffered injuries as a result of exposure to the introduction of lead and other toxic substances from Defendants’ ownership, use, management, supervision, storage, maintenance, disposal and release of highly corrosive water from the Flint River into the drinking water of Flint, Michigan.”

“As a direct and proximate result of the Defendants’ conduct, Plaintiffs and the Class have suffered injuries and currently suffer and will continue to suffer damages and losses which include, but are not limited to, physical and psychological injuries, learning and other permanent disabilities, pain, mental anguish, emotional distress, the loss of household services, the cost of medical, educational and rehabilitation expenses and other expenses of training and assistance, loss of earnings, income, and earning capacity, property damage, and loss of property value. Such injuries, damages and loses are reasonably likely to continue to occur in the future.”

Allegations: Reckless, negligent, and grossly negligent

conduct Fraud, criminal deception, malfeasance Violation of constitutional rights

Defendants: City of Flint and Individual Flint

employees MI DEQ and DEQ representatives MI DHHS and DHHS representative The MI Governor’s office Seven national engineering firms

> 50 individual suits > 10 class action suits 9 criminal actions

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The Hyper-Attention to Lead in Water Requires Vigilance for Utilities Flint, MI issues have catapulted lead in

water to the top of the country’s environmental and infrastructure agendas - Again

Media, activists, plaintiffs’ bar and government enforcement authorities are focused on lead in water issues

Utilities must educate the public on nature of risks, assert appropriate legal defenses, and prioritize water safety

Source: time.com; photograph by Regina H. Boone—Detroit Free Press/TNS/Newsco

Part Two: Strategic landscape - lead challenge for utilities

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Lead Issues are Nationwide Lead in environment is ubiquitous

−Lead in paint, soil, gasoline, etc.

Recent focus on drinking water as source has resulted in litigation

−Flint, Michigan −District of Columbia −Chicago −Philadelphia −Sebring, Ohio

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Common Issues in Lead Cases Flint and DC may not be that different from your city

−Older cities −Older homes −Lead service lines −Complex Safe Drinking Water Act (SDWA) regulations requiring changes in water chemistry −Limited funding for maintenance and replacement

Many divergent technical and infrastructure issues; hard to draw conclusions on causes and cures 26

Variability of Water Lead Multitude of factors = water lead is highly variable −House-to-house/spatial variability

Neighboring homes can have dramatically different water lead levels

and −Temporal variability

Water lead levels from single tap will vary over time

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In older homes iron scales are an important reservoir of Lead

•Substantial variation in lead content observed from site to site •Range of lead content from hundredths of a percent in some homes to as high as 8% in another •High lead content observed even in deepest layers of iron scale DC Water, Galvanized Pipe Study, 2010

University of Cincinnati Department Of Geology

Tracking the source(s) of drinking water lead is not straightforward

Particulate lead comes from multiple sources including LSLs.

Particulate Lead: Its Presence/Absence has been used to explain a variety of inconsistencies in corrosion control monitoring

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Lead deposits can be universal throughout Water Systems – from the source, through the mains and into the premise plumbing

Pb minerals are ubiquitous in all plumbing

material deposits and scales – iron

scales in particular

Distribution of metals content in scales and deposits from 27 utilities (>80 samples)

WRF 3118, Friedman et al

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Three Things Painfully Learned about Pb Corrosion Control

• Particulate lead is very important and harder to control and harder to predict release

• Polyphosphate is not a lead corrosion inhibitor—might make Pb worse

• Changes in ORP/pH/Cl can cause lead releases

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Effort to-date has focused on controlling Pb in solution

Balancing corrosion management goals is getting trickier

Changes in treatment, source and pipe conditions

PbO2 Rapidly Converts to Pb2+ when Free Chlorine is Lowered or Changed to NH2Cl

Flint DS Likely Impacted by ORP Changes • Water quality zones in distribution system can be different • Higher temperature –lower chlorine • WQ changes effecting scales or solubility • ORP Reduction • Lots of unlined cast iron—hard to maintain free chlorine • Changes in oxygen levels can impact low ORP systems

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EPA’s Lead and Copper Rule “[It] is one of the most complicated rules we have on the books.” Peter Grevatt, U.S. Environmental Protection Agency, Director of Office of Ground Water and Drinking Water

LCR Requirements Intended to assess and address system-wide

corrosion, not conditions in individual homes Sampling targets “worst-case” conditions, i.e.,

highest lead leaching potential Relies on customers to volunteer and properly

collect samples Large water systems must collect between 50-

100 “first-draw” samples per monitoring period; a small fraction of homes with lead plumbing

If more than 10% of samples > 15 parts per billion (ppb) lead, lead “action level” is triggered

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What Action Level Means and What It Doesn’t Lead action level (AL) AL is a treatment standard, not a maximum contaminant

level (MCL) 15 ppb is not a health-based standard for individuals AL exceedance triggers requirements, is not a violation itself If AL is triggered, water system must

Monitor water quality parameters Implement corrosion control Deliver public education Increase frequency of lead sampling, if on reduced

monitoring Replace lead service lines (in some cases)

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Management Challenges for Lead in Water Protecting public health while

defending lawsuits Transparency with public,

customers, regulators and stakeholders while preserving legal defenses

Acknowledging lead toxicity while educating on genuine risks

Improving water quality while balancing budgets

Coordination among multiple agencies regarding data and health information

Legal Challenges for Lead in Water Balancing compliance, outreach,

and defense −Utility must work with regulators while defending against enforcement actions −LCR and other SDWA compliance are a constant obligation −Private lawsuits present novel legal and scientific issues; class action lawsuits threaten unlimited liability

Public demands and is entitled to information

Managing open records law requests

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Claims and Damages

Key claims −Negligence, strict liability, breach of (implied) warranty, fraud, statutory consumer protection violations

◦Based on product defect and failure to warn theories of liability

−Violations of SDWA under statute’s citizen suit provision

Key injuries/damages

−Neurocognitive injuries (IQ point loss, learning disability, attention deficit/hyperactivity disorders) −Injunctive relief −Loss of income/earning capacity, medical costs

Potential Legal Defenses

• Public duty doctrine • Immunity • Statutory and regulatory

preemption • Primary jurisdiction/abstention

doctrines • Statute of limitations

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Defending Lead in Water Cases

Utilities must: −Have specific knowledge of water lead/corrosion −Be fluent in LCR and understand interplay between rule and issues of individual exposure −Understand legal and factual issues unique to water utilities −Understand political and regulatory climate surrounding lead in drinking water, including EPA, CDC, NGOs, and local activists ◦E.g., EPA’s “household action level

Proof Issues in Lead in Drinking Water Litigation What is “standard of care” applicable to water utilities?

−Lead action level? −Consumer product standards (e.g. for warnings)? −Guidance from governmental (e.g., CDC) and non-governmental bodies (e.g., medical organizations)?

CDC’s changing “level of concern” for blood lead? Exposure and causation are complex and difficult to prove; differs from lead paint cases 37

The Current Climate: Much unwarranted skepticism exists towards utilities and regulatory agencies. There is a fine line between citizen activists and media crusaders. Actual risks are irrelevant when a media narrative is at stake. Billions to be spent on LSLR > $200M authorized for Flint alone 38

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Final Words

Journalism is on life support! Alternative media dominates! You either provide an accurate, timely and compelling narrative, or social media will provide one for you. Social media must be confronted when it strays from reality!