Sued firm says Flint, state rejected corrosion controls

Jonathan Oosting
Detroit News Lansing Bureau

Lansing — Two water engineering firms sued this week by Michigan Attorney General Bill Schuette took to the court of public opinion Friday to fight claims they contributed to Flint’s water crisis and point fingers back at the state and city over its cause.

Lockwood, Andrews & Newnam of Texas and Veolia North America of Delaware released a series of statements, timelines and documents highlighting the scope of their work in Flint.

“Decisions not to provide appropriate corrosion control, which resulted in a significant decline in water quality, were made by the City and the MDEQ, NOT by LAN,” the company said on a new website that purports to tell “the truth” about its involvement in Flint, where it was hired to assess and upgrade the city’s treatment plant for full-time operation using the Flint River.

State regulators did not require the city to add corrosion control chemicals when it began drawing from the Flint River in April 2014, a catastrophic decision that caused pipe damage and the lead contamination crisis.

Schuette’s lawsuit accuses both LAN and Veolia of professional negligence and suggests they allowed the crisis to “occur, continue, and worsen,” in part by recommending water system upgrades that did not include corrosion controls. The complaint seeks monetary damages from the companies.

LAN claims it was at a June 2013 meeting where the Michigan Department of Environmental Quality told Flint that full softening and corrosion control treatments the company had recommended would not be required to comply with the federal Lead and Copper Rule. LAN says it asked Flint to revisit the corrosion control issue immediately after the meeting but was told the city would do only what was required by the state.

The company on Friday published what it says are handwritten notes from the meeting, including a line stating that MDEQ “needs to approve chemicals” and references to lead and copper monitoring and the Flint River in a section on “other regulatory issues.” The notes do not specifically mention corrosion controls.

DEQ spokeswoman Mel Brown said Friday she couldn’t provide context for the 2013 meeting that LAN describes because only former employees could adequately describe it.

Special Assistant Attorney General Noah Hall, an environmental law expert working the civil case for Schuette’s office, said that even if the purported meeting occurred as described, “it in no way absolves LAN from their professional duties and responsibilities.”

If a company was hired to build a bridge and told by a government official that it did not have to provide supports it knows are necessary, the firm would still be responsible when that bridge collapses, Hall said.

“A company doesn’t get out of their duty to do a professional job because the government tells them they don’t have to worry about something or a client tells them to cut a corner,” he said. “It doesn’t work that way. Not in the slightest.”

In a June 2011 report prepared in collaboration with Rowe Engineering of Flint, LAN listed phosphate — a common corrosion inhibitor — among other chemicals as part of a technical memorandum describing proposed improvements that would be needed at the plant to treat Flint River water.

Flint Emergency Manager Ed Kurtz hired LAN in June 2013 to evaluate the plant. LAN’s contract was amended in November of that year under Emergency Manager Darnell Earley’s supervision to have the company perform final design work, construction and engineering to operate the plant using the river on an interim basis.

It appears none of the LAN proposals that have been made public from that time or subsequent contract modifications mentioned corrosion control or phosphate until after the city’s lead contamination crisis was widely known and the MDEQ ordered the city to install a new system. Flint hired LAN to do that work in December.

On Thursday, Flint Mayor Karen Weaver pointed out Flint had paid LAN more than $3.5 million for services as of April.

“And for them (LAN) to be accused of actions that may have helped poison the city’s water supply with lead is unbelievable,” Weaver said.

Weaver noted the city still has a contract with LAN but “we will be taking a serious look at it.”

Veolia, contracted by the city in early 2015, said Friday it was hired specifically to study elevated levels of disinfection byproducts (trihalomethanes), discoloration and taste-and-odor issues. Its work was limited to a one-time, one-month analysis, the company said, and did not include lead and copper testing.

“In fact, when Veolia raised potential lead and copper issues, city officials and representatives told us to exclude it from our scope of work because the city and the EPA were just beginning to conduct lead and copper testing,” said a Veolia statement.

A company representative did not respond to requests for additional details, and a city representative was not available Friday evening for a response.

Hall, meanwhile, accused the company of “180-degree spin” from statements made at a public meeting in February 2015 telling residents their water was safe to drink.

“When they were coming to Flint and looking to assure residents their water was safe, and that Veolia was the best water consulting firm money could buy, they boasted about comprehensive services and how they’d left no stone unturned,” he said. “And now, after the fact, they’re reversing back to say it wasn’t their job. It’s just entirely inconsistent.”

Veolia also pointed to a June 2015 memo prepared by Environmental Protection Agency water regulator Miguel Del Toral that was widely publicized and distributed but not officially released.

In it, Del Toral wrote that TTHM (total trihalomethanes) reports by both Veolia and LAN “were written prior to the recent discovery of high lead results in Flint drinking water. As such, the reports do not take into account the potential effects on lead levels in drinking water.”

Both companies also defended themselves by referencing findings from the governor’s Flint Water Advisory Task Force, which issued a final report in April placing primary blame for the water crisis at the feet of the state environmental department.

The task force “exonerated Veolia from any involvement in the Flint water crisis,” the company said.

Co-chair Ken Sikkema said Friday the task force has welcomed additional investigations into the crisis, noting his team did not probe professional responsibilities of LAN, Veolia or any other companies hired to work in Flint.

“We’re confident in our conclusions about DEQ being the agency primarily responsible for what happened in Flint because they’re responsible for ensuring safe drinking water, but our report doesn’t completely absolve these companies — or anybody else for that matter,” he said.

The task force report released March 21 indicated that LAN did not agree to schedule an in-person interview and did not respond to written questions by the time the report was published.

LAN says it did respond and immediately made its responses publicly available, as they are on the company’s new Flint-related website.

“LAN was fully cooperative with the Flint Water Advisory Task Force and, while we advised the task force that our answers would be forthcoming shortly, we were never told that there was a deadline and are disappointed that our response was not included,” the company said Friday.

Sikkema confirmed LAN did submit answers the day after the task force had printed its report but shortly before it was publicly released. Members did not think the responses warranted revising any of their conclusions.