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By Rachel Leven
July 11 — When Rhonda “Rho” Kelso learned that her drinking water was contaminated with a potential carcinogen, the Flint, Mich., resident said she sent an e-mail to the Environmental Protection Agency's Office of Civil Rights.
“I am issuing a complaint charging the City of Flint, Genesee County, and the State of Michigan of violating my Civil Rights and Human Rights to Safe Water which is my right as a human being,” Kelso wrote in February 2015, referring to contamination issues she said stemmed from the city's now notorious April 2014 water source switch to the Flint River that resulted in widespread lead contamination of the water supply. “City of Flint residents are singled out (segregated) to only receive Flint River Water.”
The EPA responded—378 days later, according to Kelso.
The agency is required to respond within five days. But some say this processing delay would be consistent with how the EPA’s civil rights office has operated for years.
Processing delays in the civil rights office matter because, unlike a court that has the power to halt an activity while determining its legality, an activity or project can move forward even as the EPA office investigates the complaint. That process is supposed to take about six months but has in certain cases taken more than 20 years. Pollution and health consequences can and have occurred while complainants wait.
It isn’t clear if processing this particular complaint in 2015 would have helped Flint in the lead contaminated water crisis that has affected the predominantly black Michigan city of about 100,000. No attorneys would place the EPA at fault for the crisis when speaking to Bloomberg BNA. But the missed complaint highlights the systemic problems in the office and what’s at stake from the delays.
This development comes as the EPA considers eliminating certain processing deadlines altogether under a proposed rule (RIN:2090-AA39). While EPA officials have said these deadlines would be replaced by a “standard of promptness,” civil rights advocates and state environment agencies oppose ending the specific deadlines.
At issue is the EPA office’s enforcement of Title VI of the Civil Rights Act of 1964 (Pub. L. 88-352). Title VI bars entities receiving federal funds from executing actions that are discriminatory or would have a discriminatory impact based on race, color or national original (see related story).
The EPA told Bloomberg BNA in an e-mail that the Privacy Act of 1974 barred the agency from discussing any matter involving specific individuals in response to Bloomberg BNA's request for confirmation and further questions regarding Kelso's correspondence.
The EPA did say in general terms that its Office of Civil Rights received e-mails from two people relating to Flint drinking water issues. The agency is reviewing the “correspondence” and “information obtained through EPA's own efforts on the ground in Flint and the efforts of other Federal agencies” to determine whether the EPA's civil rights office can accept the issues for investigation under its nondiscrimination regulation.
The agency also vehemently denied causing the crisis.
“Whatever challenges” the EPA's Office of Civil Rights “may have experienced in the past, they are simply not the cause of this tragedy,” the EPA said. It added that there was “absolutely a failure to place the well-being of Flint residents first” and that the EPA would remain committed to bringing Flint's water system back into compliance.
Kelso told Bloomberg BNA she sent an e-mail to the agency’s Title VI complaints department on Feb. 25, 2015, after receiving a city notice in January 2015 that Flint water was contaminated with a potential carcinogen for much of the previous year.
That note to Flint residents was an early sign of issues with the city's drinking water. The city said most citizens could still drink the water.
Kelso told Bloomberg BNA that she and her neighbors thought the water looked dirty and smelled funny for months. The city notice said vulnerable people shouldn’t drink the water, and Kelso's e-mail complaint to the EPA said she and her daughter are vulnerable individuals. Kelso uses a wheelchair and says she has a special needs child.
A letter with EPA letterhead dated March 9, 2016, addressed to Kelso states that the agency received her letter on March 8, 2016. The EPA office had five calendar days under its regulations to acknowledge that it received Kelso’s complaint. Under Kelso's timeline, it took more than 375.
Kelso said as of July 7 the EPA hadn't yet accepted, rejected or referred her complaint. The EPA has 20 calendar days after acknowledging the complaint to choose whether to accept it for investigation and classify it as a formal complaint.
The EPA declined to comment on the complaint or its processing citing the Privacy Act.
Processing delays during the complaint review process have been the norm for years at the Office of Civil Rights although rarely on such a high-profile incident.
A 2011 review by Deloitte Consulting LLP for the EPA found that only 15 complaints—or 6 percent out of 247 Title VI complaints the Office of Civil Rights received between 1993 and late 2010—were accepted or rejected for investigation within a one-month period. Regulations give the agency 20 days for this action.
A Center for Public Integrity investigation in 2015 determined the office on average takes 350 days to determine whether it will investigate a civil rights case.The office is being sued in federal court for its alleged “pattern and practice” of exceeding its 180-days allotted time for issuing preliminary findings in its accepted cases.
The litigation cites at least five complaints with investigations that have been pending for a decade or more ( Californians for Renewable Energy v. EPA, N.D. Calif., No. 4:15-cv-03292, statement filed 6/15/16 ).
The EPA declined to explain why these delays occurred. The 2011 Deloitte report cited management instability, ill-defined standard operating procedures, poor collaboration between the civil rights office and lack of necessary skills and information systems as challenges that hindered the office from fulfilling its mission, including related to Title VI complaints.
However, the EPA did say that it is “committed to improving” its external civil rights compliance program, and is making “holistic changes” that should help “ensure prompt, effective and efficient case management going forward.”
Civil rights advocates and attorneys said delays do make a difference.
Alexandra Dunn, executive director at Environmental Council of the States, told the EPA in comments on its proposal to eliminate processing deadlines, that the deadlines “contribute to certainty and contribute to timely accountability” for state environment agencies.
State environment agencies often are the entities under scrutiny in civil rights complaints.
For example, two civil rights complaints were filed with the EPA in 1992 and 1994 over Michigan’s approval of a permit for a wood-incinerator power station in Flint. The complaints alleged the power station’s burning of wood waste could release lead-based paint and other chemicals into the air.
“We beg you to stop this project that will affect the health and safety of all of us, especially our children for the next 35 years,” Phil Schmitter of the St. Francis Prayer Center wrote to the EPA in late 1992 in a letter included with a civil rights complaint.
The EPA in 1995 accepted at least one of those complaints on the issuance of the Genesee Power Station permit, the same year the plant began commercial operations. More than 20 years later, the office still hasn’t finished investigating.
In an interview with Bloomberg BNA, Schmitter called it “ironic that we’re here again [in Flint] on lead poisoning.”
A spokeswoman for the Michigan Department of Environmental Quality (DEQ), which receives federal funds and is charged with regulating the incinerator, told Bloomberg BNA that on the environmental health front, the facility is in compliance with all permit limits, its permits comply with federal and state rules, and it is required to follow a comprehensive wood waste procurement plan.
The state agency also “demonstrated the permitted lead emissions would not have a significant impact on deposition to the ground, children’s lead exposures, or children’s health,” and “provides enhanced public participation in vulnerable communities,” Karen Tommasulo, the department spokeswoman, said in an e-mail.
And just because the claims haven't been resolved through the Office of Civil Rights doesn't mean that they haven't been addressed, Tommasulo said.
The same issues raised to the Office of Civil Rights were also brought to and denied by the EPA Environmental Appeals Board, the U.S. District Court for the Eastern District of Michigan, the Genesee Circuit Court and the Michigan Court of Appeals between 1993 and 1998.
A spokesman for CMS Energy Corp., the company that owns the power station, didn’t respond to Bloomberg BNA’s messages requesting comment.
In the case of Kelso's complaint about the concentration of a potential carcinogen in Flint's drinking water, it isn’t clear whether quick processing by the EPA would have made a difference for the broader lead-in-water crisis.
“It could have made a difference, for sure,” Ryke Longest, director of the environmental law and policy clinic at Duke University Law School, told Bloomberg BNA. “But there are so many ‘could haves’ in the Flint crisis that it’s hard to say which ‘could have’ is the one that ‘would have.’ ”
Kelso’s complaint centered on the total trihalomethanes issue highlighted in the state's 2014 note to residents, not the lead or other problems that “would raise alarms,” Longest said.
Marianne Engelman Lado, a senior staff attorney with Earthjustice and an attorney for plaintiffs in Californians for Renewable Energy v. EPA, told Bloomberg BNA that Kelso’s note could have made a difference if the EPA followed the regulatory-designated timeline and investigated Kelso’s complaint to see if the April 2014 water switch from the Detroit water system to the Flint River had a racial impact.
That could have helped the Office of Civil Rights flag potential problems in Flint earlier, Lado said. And the office could have communicated concerns to other entities inside and outside of the EPA to get everyone on alert, she said.
“This is a red flag not only regarding whether there is a Title VI problem, but whether or not there might be other problems,” Lado said.
The agency also could have initiated a review without receiving a complaint—a rarely taken action known as a compliance review—if the complaint didn't match up directly with all of the legal requirements of a Title VI complaint and then followed regulatory deadlines to complete its investigation or review, Lado said.
Lado, Longest and other attorneys and advocates told Bloomberg BNA the systemic problems of delays in EPA's civil rights office were important to address for another reason.
Inaction by the agency gives entities receiving federal funds “a green light” to act as usual, said John Philo, executive and legal director for the Maurice and Jane Sugar Law Center for Economic and Social Justice, which filed a complaint over the Genesee incinerator and later served as local counsel for St. Francis Prayer Center for the Californians for Renewable Energy v. EPA case.
And that green light can be dangerous: Recently issued EPA environmental justice guidance highlighted several studies that found environmental hazards such as toxic waste sites are “often located and concentrated in areas that are dominated by minority populations, low-income populations, or indigenous peoples.”
Vincent Martin, an advocate and environmental justice consultant based out of Detroit, summed up the findings this way: “To give the rest of the country utopia, we’ve got to live in hell.”
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