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Agency has ‘Goldilocks syndrome’ after Flint crisis

Kevin Bogardus, E&E reporter
Greenwire: Friday, January 29, 2016

U.S. EPA, often under fire from its Capitol Hill and industry critics for overstepping its authority, now finds itself in the cross-hairs for not using its authority soon enough.

The drinking water crisis in Flint, Mich., that has poisoned residents with lead has put the environmental agency on its heels as it tries to answer why federal officials didn’t act sooner after knowing for months about problems with the city’s water supply. EPA was caught stalling in a complicated process that involves government on the local, state and federal level when it comes to ensuring there is safe water to drink.

It’s another tough chapter for the agency over the past year, which has seen EPA scolded for promoting its controversial Waters of the U.S. rule, blasted on Capitol Hill for ignoring sexual harassment allegations and blamed for the Gold King mine spill in Colorado. In interviews with Greenwire, union representatives and former EPA officials said the Flint crisis is an example of how the agency is often in a no-win situation — hammered for doing too much, now hammered for doing too little.

“I call it the Goldilocks syndrome,” said Brent Fewell, former deputy chief of EPA’s Office of Water in the George W. Bush administration. “Too hard, too soft. You have to find the right balance.”

Fewell, now a founding partner at the Earth & Water Group, said EPA “has been hit pretty hard here” over the drinking water crisis in Flint but he felt criticism of the agency has been “unfair” at times since the state of Michigan had a role to play in environmental protection.

“I think some of the criticism has been unfair. Maybe the only thing they can be criticized for is they didn’t move quickly enough,” Fewell said. “Cooperative federalism involves EPA, state and local governments.”

Bob Sussman, once a senior policy adviser to EPA Administrator Lisa Jackson, said the crisis in Flint is a reminder of EPA’s important role in protecting public health.

“I think Flint, Mich., is a reaffirmation of EPA’s historic role of being the cop on the environmental beat. The message here is EPA is the nation’s last resort for environmental protection, which everyone who has ever worked at the agency knows,” said Sussman, also a former EPA deputy administrator during the Clinton administration.

“If there is anything here, EPA was perhaps too timid.”

Last week, the agency whipped into action in response to Flint.

EPA began implementing an emergency order for Flint to start a new round of water quality testing and requires the city and state to respond to the agency’s recommendations within 10 days. Further, EPA Region 5 Administrator Susan Hedman, who oversees Michigan, is stepping down next week and EPA Administrator Gina McCarthy issued a memorandum to all staff to “elevate” critical public health issues from here on out (Greenwire, Jan. 22).

Those steps by McCarthy have won her praise from agency insiders.

“I think she has been very responsive and she has stepped into the breach,” Sussman said.

Others have not been as laudatory of EPA’s performance so far.

“EPA should have been out there months and months ago doing its own sampling or joint sampling with the city to ascertain what was going on. It has authority to act,” said Mary Gade, who headed EPA’s Region 5 office from 2006 to 2008.

Flint has been struggling with lead contamination over the past year since the city switched its water supply from Lake Huron to the Flint River. Flint then failed to implement corrosion controls at its water treatment plant, which led the river to eat away at the city’s lead service lines and caused lead to seep into the water supply.

At Region 5, Hedman downplayed an EPA report leaked to the media in July 2015 that found high lead levels in Flint’s water. The now-departing regional chief said “it would be premature to draw any conclusions based on” the report, according to an email she sent to Flint’s mayor. The author of that report, EPA staffer Miguel Del Toral, told Michigan Radio last week that he “saw what was coming, and I guess the inability to affect that was really stressful” (Greenwire, Jan. 26).

John O’Grady, president of the American Federation of Government Employees Local 704, which represents EPA Region 5 workers, said agency managers should have listened to their employees and responded promptly to the crisis.

“For God’s sake, just let us do our job. This would have been resolved easily if EPA employees were allowed to do their job,” O’Grady said.

Under investigation for sluggish response

Now EPA will have to face several official investigations over how it responded to the Flint crisis.

The agency inspector general began its own probe last week that will reach into not only EPA’s Region 5 but also its water policy and enforcement offices (Greenwire, Jan. 22).

In addition, the House Oversight and Government Reform Committee is set to hold a hearing next week on the federal response to the drinking water crisis in Flint.

Litigation could also be in EPA’s future regarding Flint. Environmental and public interest groups filed a lawsuit in federal court earlier this week aimed at forcing the replacement of the city’s lead-contaminated water lines (Greenwire, Jan. 27).

Yet the politics of who was responsible for protecting Flint’s water may shift blame away from EPA and to other government officials. For example, Michigan Gov. Rick Snyder (R) has come under fire for his role in the crisis.

“The politics of Flint are difficult because you have a Republican governor who shares some culpability here. This makes Republicans less likely to attack on this issue. Democrats will not want to attack EPA, either. There is some nuance here,” said Elizabeth Gore, once chief of staff and legislative director to ex-Sen. Byron Dorgan (D-N.D.) and now a policy director at Brownstein Hyatt Farber Schreck.

O’Grady is worried that the Flint crisis could lead Republicans to slash EPA’s budget even more.

“It just feeds into the wrong solution,” O’Grady said. “Some of the presidential candidates are talking about cutting EPA’s budget. That will leave our hands tied.”

Despite the crisis in Flint, Sussman said the agency would be able to accomplish its original goals for the remainder of the Obama administration this year. EPA has been focused on several items, including implementing the Clean Power Plan and finalizing regulations that will cut heavy-duty vehicles’ carbon emissions and reduce methane from oil and gas operations.

“The Flint situation will play itself out and take up management’s time, but it will not paralyze EPA or divert EPA from its priorities,” Sussman said.

In addition, Fewell said EPA would be on the lookout for the next drinking water crisis.

“The agency goes into hyperactive mode to see what else is out there,” Fewell said. “I’m sure that the agency is scouring the landscape now to see if there is another Flint on the horizon.”

The former EPA official said he hopes lawmakers will see that impoverished cities like Flint need federal funds to fix what’s wrong with their drinking water systems.

“I hope this sparks a conversation on the Hill and elsewhere about how these distressed communities need help with their water systems,” Fewell said. “These are big, expensive problems that are going to take a while to fix.”