Despite subpoena, Earley refuses to testify at hearing

Melissa Nann Burke
Detroit News Washington Bureau

Washington — Members of Congress will hear firsthand Wednesday from Michigan and federal officials about Flint’s lead-contaminated water, but former city Emergency Manager Darnell Earley won’t be answering questions from the lawmakers.

Appointed by the state, Earley, currently emergency manager of the financially ailing Detroit Public Schools, oversaw Flint’s drinking water supply was switched to the Flint River in April 2014. But his work with Detroit schools will prevent him from testifying to the U.S. House Committee on Oversight and Government Reform, a spokeswoman said Tuesday.

“Mr. Earley was invited to appear before the committee, but he has declined that invitation,” Detroit school district spokeswoman Michelle A. Zdrodowski said in an email. Earley will remain in Detroit and be “focused on his work at DPS,” she said.

DPS EM Darnell Earley to step down Feb. 29

The committee issued a subpoena Tuesday to Earley to testify Wednesday but his lawyer refused service. At the House hearing Wednesday, committee Chairman Jason Chaffetz said the committee has directed U.S. marshals to “hunt down” former Flint Emergency Manager Darnell Earley to serve him his subpoena.

A. Scott Bolden, the attorney representing Earley, said the subpoena was issued at 6 p.m. Tuesday for Earley to appear in Washington at 9 a.m. Wednesday.

“How would the committee have him do that — tell me? The whole attempt to even get him to Washington, D.C., in this way borders on the nonsensical,” Bolden said late Tuesday. “Nor has Mr. Earley been properly served, despite our good faith efforts to negotiate a more reasonable date with the committee. Their subpoena is totally unenforceable.”

Earley is stepping down from his Detroit schools’ position effective Feb. 29, Gov. Rick Snyder’s office said Tuesday.

Michigan Democrats, including Senate Minority Leader Jim Ananich of Flint, called on Snyder to force Earley to testify.

“The governor must demand that he testify before Congress tomorrow and be completely transparent in turning over every document related to what happened,” Ananich said Tuesday.

Rep. Brenda Lawrence, a Southfield Democrat who serves on the House oversight panel, said if Snyder wants the federal government to provide aid to Flint, then federal lawmakers can expect Snyder and Earley to participate in hearings. The committee has not asked Snyder to testify Wednesday.

“The two people who were the decision-makers, the governor and Earley, have not signed up to come and sit before Congress to explain what happened: When did you know, when did you act and where was the breakdown that allowed this to happen?” Lawrence said.

She said committee Democrats have inquired whether majority Republicans intend to subpoena Earley.

“I have been assured by the chairman, Jason Chaffetz, that there will be additional hearings ...,” Lawrence said. “I will continue to call for those decision-makers to come before Congress to answer those questions.”

The committee’s final witness list for Wednesday includes Keith Creagh, Michigan’s chief environmental director, who was appointed after Director Dan Wyant stepped down Dec. 29 over his agency’s handling of the Flint crisis.

Advance copies of Creagh’s testimony indicate he will acknowledge that Flint and the state failed to take the right steps to prevent lead from leaching into the drinking water. The director also will say that “the EPA did not display the sense of urgency that the situation demanded,” according to a copy provided to the committee.

Creagh also plans to cover what the department is doing now to protect the health and safety of residents.

Other official witnesses include Joel Beauvais, acting deputy assistant administrator of the Office of Water at the EPA; Marc Edwards, professor of environmental and water resources engineering at Virginia Tech who discovered high lead levels in Flint’s water; and Rep. Dan Kildee, D-Flint Township.

Kildee has long been critical of the inaction in Flint by Michigan and federal officials, who for months didn’t alert city residents to the health risks caused by lead leaching into the water supply.

Also joining the witness table will be Lee-Anne Walters, a mother who discovered that one of her four children had lead poisoning after Flint changed its water source.

Walters convinced Virginia Tech’s Edwards to test her water last year, leading to the eventual discovery that Flint had lead levels exceeding federal standards that Edwards hadn’t seen in 25 years.

The committee had also invited Miguel Del Toral, a water expert for the agency’s Midwest Region 5 Water Division, who penned an internal memo in June 2015 raising flags about problems posed by the lack of corrosion controls in Flint’s water. The agency is not making Del Toral available to testify.

“Miguel is a valued member of this team,” EPA Administrator Gina McCarthy said during a Tuesday news conference in Flint.

“He is working here in the city. He wants to continue to do that, because he is one of our lead people. He is training a lot of the folks, so I don’t believe he is planning on testifying tomorrow.”

Committee Republicans have said they intend to focus the hearing on the EPA’s implementation of the Safe Drinking Water Act in Flint.

In a letter to EPA Administrator Gina McCarthy last week, Chairman Chaffetz, R-Utah, cited a Detroit News article for raising “serious questions” about the Environmental Protection Agency’s performance with respect to alerting the public about a health crisis related to the Flint, Michigan, water supply.”

Snyder, who has not been invited to testify, has said the DEQ failed to use common sense and ensure corrosion controls were added to the Flint River water when the city switched from the Detroit water system. Flint went back to Detroit water in October, but the damage had already been done to city and private service lines.

Although EPA Region 5 Administrator Susan Hedman has resigned, Chaffetz told McCarthy he wants an interview with Hedman “as soon as possible,” citing her lack of urgency in responding to the Flint situation.

Chaffetz requested, by Feb. 9, documents and communications to and from Hedman related to the Flint water supply, as well as records and communications to or from Del Toral related to his memo or his work duties between Jan. 1 and Nov. 1, 2015.

Del Toral’s superiors have been criticized for failing to heed his warnings and not publicizing the health risks to Flint residents earlier.

“Miguel has never been silenced and he never will,” McCarthy said Tuesday. “Miguel is working with us and doing a great job, and he has been for our agency."

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Freelance writer Jacob Carah contributed