Engineers on Trial: Will the Flint Water Crisis Charges Stand Up?
Controversial sampling methods aren't new in water quality testing
To make Flint water crisis criminal charges stick against two licensed engineers employed by the state, Michigan’s attorney general will need to prove two things about Stephen Busch and Michael Prysby: that they made deliberate attempts to deceive the public about the lead levels in the city’s water and that they covered up or tried to cover up their deceptions or mistakes.
A third matter could prove just as important: that Busch and Prysby are the actual ones who directed and committed or covered up the alleged crimes.
Charged last April with felonies and misdemeanors in state court in Flint, Busch and Prysby face substantial prison sentences and fines.
The Michigan attorney general also charged a third defendant, city water treatment plant operator Roger Glasgow. In May he pleaded no contest to willful neglect of duty, a misdemeanor which could carry a one-year prison sentence, and he is cooperating with the prosecution.
“These charges are only the beginning and there will be more to come. That I can guarantee you,” said Bill Schuette, the state’s attorney general.
If the charges against Busch and Prysby are only a prelude, Schuette is by no means guaranteed of convictions—even in the superheated emotional environment that has surrounded Flint's drinking water crisis.
The problem Schuette faces in proving the charges is a familiar one to Marc Edwards, the Virginia Tech engineering professor who helped to bring to light the lead problems in Flint, and before Flint, in Washington, D.C. “There is no doubt that an environmental crime was committed,” Edwards said in an email response to questions from ENR. “But there are so many failures at so many levels of government, it is going to be difficult to hold the perpetrators responsible.”
Attorneys for Prysby and Busch could not be reached for comment about the allegations. Neither is believed to have filed a plea of innocent or guilty thus far.
Prysby has been employed by the state’s Dept. of Environmental Quality as a district engineer and has been licensed in the state since 1993. Busch has been a supervisor with the department’s Office of Drinking Water since 2005. Prysby's most recent base salary as Environmental Engineer License 12 was $76,065 and Busch's salary as Environmental Manager 15 was $93,516.
The Water Quality Charges Against The Engineers
Key parts of the charges revolve around instructing homeowners to pre-flush taps before providing samples and with failing to add anti-corrosive chemicals at the water treatment plant.
Specifically, Schuette charged Busch and Prysby with misconduct in office for misleading state and local officials, failing to provide safe drinking water, intentionally tampering with water samples on lead levels, altering test results and conspiring to conceal what they did to test results.
These crimes “endangered Flint families,” Schuette charged at a heavily attended news conference.
The state also charged Prysby with additional misconduct in office for authorizing the Flint water treatment plant operating permit, “knowing it would fail to provide safe drinking water to the people of Flint,” said Schuette. And the state charged both Prysby and Busch with violating the state’s safe drinking water act by failing to provide anti-corrosive chemicals to the water and directing individuals whose water was being tested to pre-flush taps.
The state had charged Glasgow with felony tampering of evidence for allegedly altering and falsifying reports to the state and the federal Environmental Protection Agency.
Schuette, in a video interview after announcing the charges in April, explained some of the thinking behind the charges. All crimes require a guilty act and a guilty mind, the intention to break the law, he said. If a defendant didn’t breach his or her duty in a grossly negligent way, “then potentially you don’t have a crime…just a mistake, a grossly negligent mistake.”
A mistake can lead someone to commit a crime, Schuette said, if the person who made it tries to conceal the mistake or “just turns a blind eye. That could be a problem.”
The text of the Michigan Safe Drinking Water Act doesn’t explain exactly how what Prysby and Busch failed to do violates the law.
Testing, reporting, and meeting the federal drinking water standards are the responsibility of the water supplier under sections 325.1007(1) and (3) of the Michigan act. The state Dept. of Environmental Quality is tasked in those sections with fining water suppliers for violations and obtaining and analyzing samples if the supplier hasn't done so sufficiently. In this case, the supplier would be the city of Flint, with the state Dept. of Environmental Quality supervising.
Glasgow’s no-contest plea, however, is an ominous sign for Prysby and Busch, because all three were involved in decisions about the water.
According to the recent news accounts and documents released by the state and consulting engineers, the state was supervising the switch to Flint River water in April 2014 when a combination of city and state officials decided not to treat the water with anti-corrosive chemicals, culminating in the high lead level tests in February 2015.
Concern About Water Quality
Attorneys for Prysby and Busch could portray some of their actions as signs of concern for the quality of the water.
In December 2014, Prysby and the department found the city of Flint in violation of the state water quality act for high levels of a disinfectant by-product. The department sent a letter of notification of the violations to Brent Wright, operation supervisor of the city’s Dept. of Public Works. Wright was also one of the people who pushed for an expedited switch to Flint River water in March 2014. In February 2015, Flint’s public works director, Howard Croft, wrote a memo to Flint residents claiming that the water was safe to drink despite bacterial testing.
Croft, who has since resigned, was also one of two employees who recommended accepting the plans to switch to Flint River water.
The state attorney general’s office did not respond to ENR’s requests for information about plea deals, whistleblower rules and the current status of the cases against Prysby and Busch.
It isn't clear exactly what the alleged cover up and alleged intent to spin the water test results via the sampling method, says about the working relationship between the state officials, including Prysby and Busch, and the city, including Glasgow.
Other Forms of Sample 'Cheating'
After years of campaigning against suspect methods of water testing by utilities, and the acceptance by regulators, Edwards, the Virginia Tech professor, is not making fine distinctions yet about the the defendants in the Flint charges.
The state Dept. of Environmental Quality "employees did not follow the letter or intent of the federal corrosion control law that are they paid to oversee and enforce,” Edwards charges. “Worse, emails show they covered up harm arising from failing to follow the law—pipe leaks, Legionella and lead. They worked at least ten times harder covering up their failure to follow the law than they would have worked to do their job in the first place, turning what could have been a simple mistake into a manmade disaster.”
In addition to pre-flushing taps, other allegedly deceptive sampling strategies that Edwards has written about include choosing neighborhoods where predicted lead levels are low, waiting until outside temperature is low and water pH high and sampling when water is treated with free chlorine.
But EPA refused to intervene, he claims, and “so when it comes to pre-flushing, these employees [involved with the Flint crisis] certainly have a lot of company.”