The State is 'dragging' its feet...

Adam Mays
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Joined: 11:00 PM - Jan 02, 2017

3:01 AM - Jan 25, 2017 #1

Judge: State dragging its feet on Flint water deliveries

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A federal judge said Tuesday that the State of Michigan and City of Flint appeared to be "slow walking" compliance with an order he handed down in November aimed at assuring all Flint residents have drinking water that is free from lead contamination.

"I'm unimpressed," said U.S. District Judge David Lawson after a one-hour hearing in federal court in Detroit.

"By next week, I'll expect to see a plan of compliance that is certainly more robust than we have seen to date."

Lawson, in November, ordered the state and city to begin regular deliveries of bottled water to all Flint households that can't be shown to have a properly installed, working water filter.

Since then the state has twice sought to block that order and has been turned down both times, first by Lawson and then by the U.S. 6th Circuit Court of Appeals.

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Meanwhile, "there is no set plan to deliver any water," Assistant Attorney General Michael F. Murphy conceded to the judge Tuesday. And while the state has organized a team of workers to visit tens of thousands of Flint households to verify that they have filters, hiring still is under way and there still are about 28,000 homes where the process of filter verification has not been completed, Murphy said.

Lawson had two motions before him at Tuesday's hearing, and he didn't rule on either of them from the bench. A motion from the state defendants seeks to dissolve his order on the grounds that there is no ongoing violation of the Safe Drinking Water Act in Flint. A motion from the plaintiffs in the case -- Concerned Pastors for Social Justice, the Natural Resources Defense Council, the Michigan ACLU and Flint resident Melissa Mays -- asks Lawson to force the state to comply with the November order.

"They don't intend to comply with the order," NRDC attorney Dimple Chaudhary told Lawson. "They've been ignoring this court's order."

Murphy disagreed. "The injunction ... is not being ignored," Murphy told the judge. "It's going forward as fast as is reasonably possible under the circumstances."

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The state has argued the order is too costly and logistically difficult to comply with, and it isn't necessary because the quality of the water in Flint has increased significantly and residents can arrange for bottled water delivery, if needed, by dialing 2-1-1.

But Lawson said Tuesday that based on anecdotal evidence he has heard in the case, the 2-1-1 system "is simply not adequate" to meet the needs of Flint residents.

Tuesday's hearing was held the same day the state announced Flint's water system no longer has lead levels exceeding the federal limit.

The 90th percentile of lead concentrations in Flint was 12 parts per billion from July through December — below the “action level” of 15 ppb, according to a letter from the Michigan Department of Environmental Quality to Flint’s mayor. It was 20 ppb in the prior six-month period.

"There are thousands of water systems around the country with higher levels of lead, that are not found to be out of compliance," said Assistant Attorney General Richard Kuhl, who asked Lawson to dissolve his order on the grounds that there is no ongoing violation of the Safe Drinking Water Act in Flint.

Lawson asked Kuhl if Flint tap water is safe to drink without a filter -- something Flint residents are still advised not to do.

"The drinking water in Flint is safe as defined under the Lead and Copper Rule of the Safe Drinking Water Act," Kuhl replied.

"That's an interesting dodge," Lawson replied.

Chaudhary argued a violation of the Safe Drinking Water Act continues because, while lead levels are dropping, there is no sign yet that they have bottomed out so that the water has achieved "optimization" required by federal law, she said.

Also, "Flint is different," she said. "The harmful effects of lead exposure is cumulative," and the state must show "people are drinking water that is as safe as possible."

On Monday, Lawson scolded Michigan Attorney General Bill Schuette for trying to file an amicus brief in the case that would take a position opposite to those argued by his assistant attorneys general, who are representing Treasurer Nick Khouri and a state-appointed board that is overseeing Flint. Lawson suggested "superficial posturing" by Schuette may have irreversibly complicated the case.

On Tuesday, Lawson asked Murphy and Kuhl if the state defendants were still comfortable being represented by the Attorney General's Office, and was told that they were.

The Associated Press contributed to this report.

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4.
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