How One City Sparked a Lot of Attention for a Big Problem

August 02, 2016

This is part one of “Between Flint and a Hard Place: A Confluence of Trends regarding Water Contamination and Remedial Enforcement”, a three-part series of guest blog posts from Enhesa.

“A mighty flame followeth a tiny spark.” – Dante Alighieri

Colloquially, “flint” is rock used to produce an igniting spark in order to catch something on fire. What a fitting name then for the industrial city in Michigan that has sparked such a public outcry on the conditions of drinking water in the United States, leading to numerous investigations by federal and state agencies in cities and towns throughout the nation. Flint, Michigan switched its water supply to a less expensive alternative supply in 2014, but without first addressing the potential for corrosion from the new water source in the supplying pipes. Due to the government decision, Flint residents have been exposed to high levels of lead leached into their drinking water from corroded pipes. The Center for Disease Control and Prevention (CDC) is clear that even small concentrations of lead are not safe for human consumption, especially children and pregnant women because lead poisoning can damage the brain and nervous system, retard growth and development, and result in learning and behavior problems in addition to hearing and speech issues. Since Flint residents discovered the extent of their exposure, numerous investigations took place to identify the person or people responsible.

The water crisis that resulted in Flint has sparked a surge in public activism in other regions of the U.S. and communities are demanding better water testing methodology and increased accountability. Concurrently, private companies are being investigated for contamination problems in several states and timely court case verdicts and settlements are providing a stern and expensive picture for companies that use chemicals near drinking water sources. Beginning with analyzing how Flint inspired the nation to react with intensified concerns for its drinking water, this blog series provides examples of recent water contamination cases to identify the growing momentum in trends surrounding water contamination and reactive enforcement, and how this is beginning to impact private companies.

It Started with Flint

Since Flint, communities throughout the U.S. have clamored for assurances from officials that their drinking water is safe. Philadelphia, for example, announced on July 8, 2016 that it would conduct new tests with new testing methodologies for lead in city water in response to citizen-activists’ actions, which were prompted by the events in Flint. Philadelphia generally only tests its water for lead every three years and has continued to use testing methods the EPA has warned against using for ten years because the tests often underestimate levels of lead in water. Yet, Philadelphia had not been forced to change its potentially inaccurate testing habits. Post-Flint, the city is taking a different, more aggressive approach to assuage its citizens.

Philadelphia is not alone in changing its testing practices or choosing to go beyond mandatory water testing procedures. Because children are the most at risk of suffering negative and long-term consequences from lead poisoning, since Flint, parents and school systems are pressuring states and local districts to focus on the drinking water sources at these public facilities. This could be an expensive change for many states, cities, or school districts because although the EPA has recommended for years that lead testing take place at schools, the federal Lead and Copper Rule does not require testing for the presence of lead in drinking water at schools. For example, North Carolina previously only took random samplings of school drinking water sources when broadly testing water supplies for lead. Even random, of the 6,000 individual recorded cases since 2005 where lead in water exceeded EPA limits, dozens of those cases included schools and daycares. The procedures for testing did not change though. Since Flint, the state has proposed House Bill 1074 requiring all schools to test drinking water outlets for the presence of lead. The bill is rapidly moving through North Carolina’s legislative process. Houston, Texas, which also performed only random samplings of school waters served by municipal water systems, has also announced that it will begin testing at all elementary schools in 2017, and will begin testing at middle and high schools in subsequent years.

Water Quality Testing

Because of Flint, legislators and regulators in jurisdictions like those in Pennsylvania, North Carolina, and Texas have been incentivized to investigate and cure water sources using higher standards where they were not so incentivized before. Although schools are a major focus, given the extent of recorded lead exceedance in places like North Carolina, the closer inspections are unlikely to stop in the school yard. More jurisdictions are likely to be forced by activist groups, such as the one in Philadelphia, to take extra steps, considering that a recent report by the Natural Resources Defense Council (NRDC) identified that 18 million Americans were served by water systems in 2015 that violated federal standards for lead, without enforcement action to correct the problems. This fortified focus and attention on finding and then solving water contamination is a part of the growing theme.

Water Contamination Is Not Just an Issue for the Public Sector

The trending remonstrance of government water treatment and the growth of public demands calling for better and expanded testing practices are unlikely to remain divided, conceptually, from private party issues where water is contaminated. More likely, any contaminated water problem will seem to the public eye to be an exacerbating example of all the water troubles in the U.S., and agency officials may react with gusto to match the trending public outcry in their communities. As an example, although residents in Hoosick Falls, New York demanded testing of water wells because of a perceived high rate of cancer in the area and found elevated levels of perfluorooctanoic acid (PFOA) in 2014, a suspected carcinogen, it was not until after the Flint water crisis came to the public’s attention that the EPA and New York officials warned residents not to drink the water and promised a new water supply. Subsequently, Saint-Gobain, a plastics company in the area that manufactured products containing PFOA, has spent more than 4.5 million USD on bottled water and filtration equipment for Hoosick Falls residents.

As Flint has inspired regulators to take more proactive approaches to test water for contaminants and take additional steps for when contaminants are found, it is likely that facilities that are located near contaminated water could expect more stringent investigations, fines, consent decrees or other forms of remediation mandates, such as providing bottled water to affected populations and paying for laboratory sampling costs, water treatment, and monitoring. Litigation is also possible and could become very expensive as juries may be more sympathetic to plaintiffs since the Flint water crisis, in addition to other recent water contamination cases.

For example, on April 1, 2016, the New Hampshire Department of Environmental Services (NHDES) sent Saint-Gobain, which has multiple facilities in the northeast, a letter formally requesting the company to commit to take corrective action for ground and drinking water contaminated with perfluorinated compounds (PFCs), particularly PFOA. The NHDES stated the company is “potentially responsible.” A potentially responsible party may have contributed to a contamination and may be liable for costs of response actions. These parties may sign a consent decree to participate in site cleanup activity without admitting liability.

In its position as a potentially responsible party, the plastics company agreed to pay for bottled water supplies and proactively agreed to fund design efforts for a potential extension of public water service in one of the affected communities, while the state agency continues to investigate other potentially responsible parties who may also bear financial responsibilities for the PFOA contamination. In addition to New York and New Hampshire, Saint-Gobain is also treating PFOA-contaminated water in Vermont.

Flint is not the first place to have water contamination. Flint just seems to be the crux bringing attention to a much larger issue. Numerous jurisdictions in the U.S. have records of exceeding federally acceptable levels of lead in drinking water, have used testing methods that are known not to provide accurate information about the levels of lead, or have taken few to no remedial actions after finding other contaminants in water. However, since Flint, communities throughout the U.S. are demanding more scrutiny for their drinking water and their governmental officials are feeling the pressure to change their behavior. State and local governments are using new testing methods and testing at more locations, and some jurisdictions are beginning to change the way they react to finding contaminated water. Additionally, although the crisis in Flint and contaminated drinking water in school districts are government, or public, issues, private industry is beginning to be impacted by the Flint spark as regulators are searching for contaminated water, and when it is found, they are hunting for parties responsible for or potentially responsible for the contamination.

The second post in this three-part series, Between Flint and a Hard Place, will dive deeper into trends regarding water contamination involving private industry actors, analyzing how Flint, an issue created by public officials, may be inspiring more stringency in enforcement proceedings. Readers can also look forward to the third post, which will provide thoughts on the continuation of these suspected trends in water contamination cases and proactive recommendations for industry.