Unprecedented Charges in Flint

What would a conviction mean for water professionals?

Laura_Sanchez_Blog

While I feel a tremendous sense of responsibility to do my job well and report information accurately in my role as editor, when I mess up or fail to act, a comma is misplaced or a person’s name misspelled. It’s unfortunate, but nobody dies.

The charges recently brought against five Michigan officials in relation to Flint’s water contamination crisis, and the involuntary manslaughter and misconduct charges against director of the Michigan Department of Health and Human Services Nick Lyon, made me reflect on the massive responsibility shouldered by those of us in the water industry. Though we don’t always think about it, lives hang in the balance.

According to a recent ProPublica article, the involuntary manslaughter charges are unprecedented, marking the first time in American history that a government official has been charged in a citizen’s death for inaction.

Email evidence indicates that Lyon and other officials were aware of Legionnaires’ cases caused by under-treated water as early as 2015 but did not notify the public for another year. When these professionals failed to act, the charging documents assert that their passivity contributed to the death or serious injury of the citizens they were employed in to protect.

My colleague Janice Kaspersen distilled the details of the charges here.

In the past there have been officials convicted of direct involvement in environmental crimes. For example, ProPublica reports that Richard Smith, the pilot of the Staten Island Ferry who lost consciousness after taking painkillers, served 15 months in prison for causing the deaths of 11 people. Thus far, however, no one has served time for passive involvement.

In the case of Lyon, the charging documents state that he “willfully disregarded the deadly nature” of the Legionnaires’ outbreak and “exhibited gross negligence when he failed to alert the public…” Could this lead to an unprecedented conviction? Possibly.

In court last week, Troy Kidd, whose mother Debra died of Legionnaires’ at Flint’s McLaren hospital in 2015, told the defendants, “You’re responsible for the well-being of other people, you can’t just negate that duty and stand by idly and watch to see if something bad happens.”

Do you think that these individuals should be charged for passive involvement? What implications do you think these charges could have for water professionals in the future? WE_bug_web

Comments
  • John Delgado.

    When such public official are derelict of their assigned duties and death/health conditions are derived to American Citizens, “willfully disregarding the deadly nature” of the Legionnaires’ outbreak and “exhibited gross negligence when he failed to alert the public of health issues…” MUST LEAD TO AN CONVICTION that will confirm the bad actions taken by those responsible. The public relies on government employees to assist and protect the people from any harm that what the environment presents. That is the legal responsibilities of such employees in those positions.

    Reply
    • Laura S.

      Thank you for sharing your thoughts here, John. I appreciate your comments.

      Reply
  • David D. Dexter, P.E..

    Those and probably other should be charged for failure to protect the public health and welfare. Any Professional Engineers involved, violated the code of ethics that licensure mandates such professionals’ hold public health and safety above all else. It would appear that any professional engineers involved failed to uphold their obligations in following ethical standards.

    Reply
  • Marc Douvia.

    As many of my previous bosses have told me “Bad news doesn’t get better with age.” Those in positions of Public Trust must have the courage to identify and report bad news in a timely manner, and help address and/or correct the resulting situation if in a position to do so. To do anything less is at least ethically irresponsible if not criminally negligent. Better to report and deal with a bad situation up front than ignore and hope nothing bad happens.

    Reply
  • Robert Adamski.

    The real crime was committed by the Mayor who appointed a solar power installer as Public Works Director and the professional organizations that didn’t complain about it.

    Reply
  • David Phipps.

    Here in the UK there are quite frequent prosecutions in relation to Legionaires disease. these are for both public and provate (commercial) bodies and also for individuals in both. See https://www.theguardian.com/uk/2006/jul/31/1 for details of the prosecution of a local authority employee for failure to maintain monitoring.

    Reply
  • Nestor Gallo.

    “In any moment of decision, the best thing you can do is the right thing. The worst thing you can do is nothing.”
    ― Theodore Roosevelt
    As a government employee, we have a moral obligation to protect the safety and health of the public … the pollution of the water system could have been prevented … I had to face a similar situation and I did not sleep until I was 100% sure that our water system was going to be protected for generations to come … there were instances when I was afraid of losing my job but deep inside I knew that losing your job protecting the health and welfare of thousands of people is worth it … thousands of children will grow up with special needs and learning disabilities because of the exposure to high levels of lead … those responsible for letting it happen deserve to be prosecuted and punished for their crime.

    Reply
    • Laura S.

      Thank you for sharing this beautiful insight, Mr. Gallo. I am so grateful for your ethical perspective as a government employee.

      Reply
  • Dr Edo McGowan.

    Water has been assumed to be pure as it falls from the sky onto clean forests, thence exiting from springs into sparkling ferned and rock -lined bubbling brooks, into streams, creeks and rivers finally spilling into the ocean. That picture, for many drainage basins, is now a myth. Unfortunately, the current water quality standards are still built on and maintained by this old dogmatic myth. They do not reflect the new normals. Thus, between the old dogma and the new normal lies the challenge. What we are mainly now seeing is an over subscription of the absorptive capacity of the systems through which water courses and this is compounded by arguments driven by redistributary regulatory systems. Given that basic fact, along with a lack of understanding, or more importantly, the ignoring of how the system isn’t working, ignorance amongst the citizens is understandable. That lack of appreciation by the masses allows for things like Flint. Basically, we are talking about over subscription of absorptive capacities within complex and very large systems.

    To get some idea of the value of the absorptive capacity of a system, one can cost out the effort needed to bring, for example, an otherwise functionally clean river back to its pristine condition. Inextricably tied to this is how we deal with waste disposal. Most rivers are, although contrary to the Clean Water Act, extensions of sewer systems. This complex situation is first and above all, a political economic issue and hence becomes a partisan issue.

    Any debate over the depth and breadth of water pollution [including sanitation], because of the inadequacy of current standards, is beset by uncertainty. Uncertainty may be driven by a range of opinion on causation, various levels of responsibility, as well as effect. Arguments may range between how extensive or important the damage might be, through and to questions asking if the issue actually has any merit at all. Within the the segment between is a large area of uncertainty that can be augmented by varying the political debate, hence stalling effective action.

    It has been noted that, within this area of uncertainty, and at several major junctures, the overall effect of degradation might be difficult to cost out. First is the need to measure the extents in degradation. Secondly, this then requires that there be an ability to differentiate human effect from ongoing natural processes. Thirdly, is the former question really important? And, next, if there is deterioration, then there is much debate over the variety of ways such deterioration can be viewed and, further if there is then a need to mitigate and finally, how? Ultimately, it comes down to considerations related to the different approaches. What is viewed, what is important, what may be ignored, and the who and how of interpreting the variety of data and critically who is suffering the damage, and lastly, are they politically important?

    Water pollution is above all, a political-economic issue, and any discussion and ultimate result will therefore rest upon partisan decisions, and more recently, in some cases by such moderators as the World Trade organization (WTO) and similar trade agreements such as NAFTA (see for example the conflict between the right to sell under NAFTA and the right to protect one’s water resources—-the absolute right to pollute [http://www.thirdworldtraveler.com/NAFTA_FTAA/NAFTA_FTAA_InvestorsRights.html

    Pollution may continue but remain unrecognized or be unimportant to those living in an affected area. It only reaches a social issue when deterioration becomes: 1) recognized and 2) some level of action is required, assuming a non-clientele captured regulatory agency. However, until that level of action brings about conflict, pollution has not become a problem and regulators are not attracted.

    Others have noted that when the issue generates conflict, it may be expressed either politically—or it may remain unnoticed as merely the over subscription of alternative scarce resources or the overuse of their absorptive capacities. Unfortunately, so deeply ingrained are the traditional views of humans, which lead to pollution, that any intervention brings about contradictions within society. Intervention thus implies a mediation or an arising of conditional pressures, especially as regulation shifts from prescriptions to proscription of behaviour. When that regulation shifts to redistribution, the level of conflict, hence pressure on the regulator rapidly increases. An intervention bringing out conflict may arise affecting any or all of the following: a) the livelihood of users, b) changes in the allocation of yet other scarce resources, c) changes of the law, or d) rearrangement of pricing structures, and rearrangement of market or resource extraction shares and, and thus critically, impacting bureaucratic comfort levels within the regulatory body.

    With respect to the water environments, some of the leading opinions claim that the level of pollution is not important. Its advocates claim that this will induce innovations that can cope with the problems. These opinions are diametrically opposed to others who claim that pollution is widespread and serious. There are doubts, however, as to whether currently standards and induced innovations can cope with current pollution. These doubts seem well founded.

    Those advocating innovation will argue that, far from being finite, as assumed by the Club of Rome world models, and those following such as the Dublin Statements, water actually becomes cheaper and more plentiful as technology finds and creates new resources and uses existing resources more efficiently—e.g. Desal or reclaimed sewer water. In this context, degradation of water exists, but taken as a whole—it is unimportant. The more technically advanced society becomes, the less it is dependent upon the natural endowments and processes. To wit, the Israeli or former Soviet method is one of ignoring the source—rather, effort is spent on cleaning to the appropriate use. This obviates the need to keep all water supplies at the drinking water quality level or aquatic life sustenance level, unless there is some “economic” value to that aquatic life. The trick here is in the costs and benefits ascribed during the economic analyses or the trade agreement background. If environmental inputs are neglected, as is often seen within current analyses, then an entirely different picture of impact is presented. To the lay decision-maker, these arguments may suffice “I’m not an expert and these experts tell me that..bla bla…….and I will accordingly go with that information”. These views are in complete contrast with those who indicate that the environmental damage or over subscription is wide-spread and thus of critical importance. However, remember, money and the bottom line speak volumes. For drinking water, for-profit agencies may see themselves shifting from selling water as a product to selling water only a service. This may obviate part of the problems associated with liability.

    Dr Edo McGowan

    Reply
  • Rick Laughlin, APLD.

    Laura Sanchez, no I do NOT think any public officials or any other should be responsible for any deaths…we are a sue happy country…we need to be more like our European neighbors who accept responsibility for any and all actions on YOURSELF.

    Reply
    • Laura S.

      Thank you for sharing your perspective Mr. Laughlin. I appreciate the insight you bring to the discussion.

      Reply
    • A difference in Europe is that they will have (more) standards in place for a variety of things and once an organization passes those standards – they are clear from any direct liability.

      Reply
      • Dr Edo McGowan.

        In part, the difference between Europe and the U.S. may be seen in the access to governmental systems (standing) of the people. Many Europeans have a more direct grasp of their governments because many are taxed for health care. Here in the U.S. that direct connection is missing. Thus, here in the U.S., corporations, who can afford the best politicians money can buy, adroitly step into the front of the line. Europeans, however, when seeing something affecting their general health, hence the tax, have a more direct connection to decision-making.

        Dr Edo McGowan

        Reply
  • Rich Hansen.

    I’m a Facility Manager, as an Administrative Law Judge in NYC told me 35 years ago, you have an implied responsibility due to your position, the occupants of your facility believe your (my) actions are keeping them safe. The actions of government officials fall under that reasoning of law. The power and responsibility of government is to insure the public safety and well being. Knowing the situation of the water quality in Flint and doing nothing is criminal.

    Reply
    • Laura S.

      That’s excellent insight, Mr. Hansen. The phrase “implied responsibility” is a powerful one.

      Reply
    • I understood that this whole problem developed because the City of Flint stopped buying treated water and started using water directly from the nearby river?

      Reply
      • … in other words – the unfortunate Legionnaires’ situation is just one aspect of the problems created once untreated water started to be used.

        Reply

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