The Bureaucrats Charged in Flint's Water Crisis

Is the judicial system the right place to hold people to account for the lead-poisoning scandal?

This week, Governor Rick Snyder announced he’ll spend the month drinking water from Flint that’s been run through a water filter. One might call that a sip in the right direction—a gesture to demonstrate to residents that their water can be made safe with the filters, which the state has distributed. Reports suggest Flint residents have been reluctant to use water even after it goes through the filters.

Who can blame them? For months, residents were told their water was safe, even as ever-higher levels of government came to know it was not—in fact, the water was contaminated by poisonous levels of lead. On Wednesday, Michigan Attorney General Bill Schuette announced charges in connection with the scandal. The names on the list don’t include the governor, the former head of the state Department of Environmental Quality, the city’s former emergency manager, or any of the other names that have appeared prominently in reports about the poisoning.

Instead, the three men charged today are relatively low-level bureaucrats. One is Mike Glasgow, the utilities administrator for the city of Flint. The other two are Stephen Busch, who was a district administrator for the drinking-water program at the DEQ, and Mike Prysby, who was an engineer at the department.

Busch and Prysby face the most serious charges. Prysby has been charged with six counts, each carrying maximums of between one and five years imprisonment. Four are felonies: two each of misconduct in office and one each of tampering with evidence and conspiring to do so. He also faces two misdemeanor counts of violating the Safe Drinking Water Act. Busch faces nearly the same slate, but only one count of misconduct in office. Glasgow has been charged with willful neglect of office and with tampering with evidence by changing test results to show lower lead levels in city water than were actually present.

In each case, the men seem to have had misgivings about Flint’s decision to switch away from the Detroit Water system and begin drawing water from the Flint River instead. The water in the Flint River turned out to cause corrosion in Flint’s aging lead pipes, which produced elevated levels of lead in drinking water. Heavy use of chloride to treat the water’s smell and taste created additional corrosion problems. A Legionnaire’s disease outbreak has also been traced to the water. But once the switch was in place, officials say, all three misled the public and other officials.

In January 2013, Prysby expressed concern about complications from switching to the Flint River. Two months later, in March, Busch cautioned that “Continuous use of the Flint River at such demand rates would: Pose an increased microbial risk to public health ... Pose an increased risk of disinfection by-product (carcinogen) exposure to public health … [and] Trigger additional regulatory requirements under the Michigan Safe Drinking Water Act.”

As the switch neared, Glasgow too had serious reservations. On April 17, 2014, he wrote to Prysby and Busch, “If water is distributed from this plant in the next couple of weeks, it will be against my direction. I need time to adequately train additional staff and to update our monitoring plans before I will feel we are ready. I will reiterate this to management above me, but they seem to have their own agenda.”

But in a city press release on April 25, Glasgow was quoted speaking approvingly about the switch:

For nearly 10 years Mike Glasgow has worked in the laboratory at the City of Flint Water Service Center. He has run countless tests on our drinking water to ensure its safety for public use. Mike has not only conducted tests on water provided to us by Detroit, but also on local water from nearby rivers, lakes and streams including the Flint River. When asked if over the last decade if he has seen any abnormalities of major concern in the water, his response was an emphatic, "No."

Where Glasgow got in trouble was with the testing of water. The samples that the city sent for testing came from houses with a variety of plumbing systems, rather than from high-risk locations with lead pipes. Glasgow blames that discrepancy on incomplete records, but officials say he signed a document affirming the samples came from high-risk houses. The result was artificially low levels of lead from the tests.

The crux of the allegation against Prysby and Busch is that they tried to impede investigations by the Genessee County Department of Health and by the U.S. Environmental Protection Agency. An EPA regulator named Miguel Del Toral became interested in the case and peppered the state DEQ with questions about what procedures were in place. In February 2015, Busch wrote to Del Toral that Flint “Has an Optimized Corrosion Control Program,” which was not true. Del Toral continued to probe the status of Flint’s water. On April 27, Busch complained to coworkers in an email: “If he continues to persist, we may need Liane [Shekter-Smith, head of the DEQ drinking-water program] or [DEQ] Director [Dan] Wyant to make a call to EPA to help address his over-reaches.” In the short term, that seems to have worked: Workers heard a few months later that “Mr. Del Toral has been handled.” (Del Toral has since accused EPA officials of muzzling him. The EPA denies this, but the official in charge of the region was forced to resign.)

Busch was suspended from DEQ in January pending the investigations. The Detroit Free Press reported Monday that Prysby had moved to another job in DEQ. While he did not respond to the paper, a spokeswoman said Prysby had not been forced to change jobs. In addition to the criminal charges Wednesday, Glasgow has said that Prysby told him the city of Flint did not need to use phosphate to coat the pipes and prevent corrosion. And Prysby was the subject of unflattering media attention when a September 2014 email to a colleague surfaced in which he wrote, “Thanks Richard...now off to physical therapy...perhaps mental therapy with all of these Flint calls....lol.”

Schuette, the state’s attorney general, said during a news conference Wednesday that the charges were the beginning and not the end of his investigation, and suggested that more individuals would be charged. He did not say who might be charged, saying that no one had been ruled out and that there was no target list.

One can guess some of the people who might still be charged. For example, there’s the DEQ official who appears in messages to be pressuring Flint to produce samples below the acceptable federal level of lead. There’s Shekter-Smith, Wyant, and DEQ spokesman Brad Wurfel, who were both forced to step down. And there could be other officials in the mix. As The Huffington Post notes, Schuette was initially reluctant to investigate the Flint situation, and reversed course only after massive national attention focused on the story. The FBI and several other federal agencies have also launched investigations.

Perhaps Schuette is starting with small fry in order to get to the big fish, but the fact remains that the indictments seem unlikely to sate the lust for revenge that many in Flint and beyond feel. If Schuette’s allegations are true, then the early misgivings that Prysby, Busch, and Glasgow gave don’t exculpate them—in fact, they underscore the misconduct, because they demonstrate that the trio ought to have known better.

But at the same time, those misgivings point to the fact that Glasgow, Busch, and Prysby were not the policymakers who conceived the disastrous switch to the Flint River as a water source. What about former Flint Emergency Manager Darnell Earley? What about Snyder? What about the officials in the governor’s office who knew about problems with Flint’s water, even if (as he says) they didn’t tell him? What about Wyant? It may be much easier to catch low-level employees on counts such as these—unlike political appointees, they are less likely to be conscientious about what they communicate via email, and as a result get tripped up. Or it may be that though top officials acted unacceptably or unconscionably, they simply did not commit any crimes.

A task-force report released last month provides relevant perspective. That panel, appointed by Snyder, came back with scathing conclusion—placing some blame on EPA, but most of the blame on the state, from Earley, the emergency manager whom Snyder appointed, right up through the DEQ to the governor’s office. The major message of that report was not that there had been a massive criminal conspiracy to poison city, but that there had been multiple, serious, systemic failures of government.

One lesson of the task-force report was that the Flint crisis began with a political failure. Because Snyder had appointed an emergency manager to run the city, the people of Flint had little voice in the switch and no method of holding its leaders accountable. One lesson of the criminal inquiry may be that the judicial system might not be the most effective tool for dealing with the ensuing crisis. Political failures at a high level may be best dealt with by the political system.