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By Rachel Leven
March 14 — Everyone from members of the general public to presidential hopefuls have called for those responsible for the Flint, Mich., drinking water crisis to be identified and held accountable, but few have offered specifics on how to harness the legal system to do so.
Former Justice Department officials and attorneys said that the criminal provisions in the federal Safe Drinking Water Act are more limited than in other environmental laws and that federal investigators probably would have to look to other statutes in order to pursue criminal charges. Attorneys also said the Justice Department may determine a criminal case isn't appropriate.
“I think the public expects the government to take a hard look here just as they would if all the individuals were in the private sector. That doesn't mean it should necessarily come out one way or another,” Steve Solow, former chief of the Justice Department's environmental crimes section, told Bloomberg BNA. “What seems simple at first may prove more complex.”
If a criminal case is deemed inappropriate, there is still room for civil actions to be taken by the Environmental Protection Agency, attorneys said. The next step the public will likely see is either a grand jury's criminal indictment on the issue or civil action that would likely signal the end of criminal proceedings, they said.
A decision by a state-appointed emergency manager to switch the drinking water supply in 2014 for the city of about 100,000 to the Flint River because the city was in financial straits led to widespread lead contamination. Accountability for the resulting crisis is being investigated by authorities and debated by Congress. The House Oversight Committee will host two hearings the week of March 14 where several high-profile federal and state officials are set to testify, including EPA administrator Gina McCarthy and Michigan Gov. Rick Snyder (R) (see related story).
The Justice Department returned Bloomberg BNA's e-mails after deadline and directed the query to a separate office. The Michigan State Attorney General didn't respond to Bloomberg BNA's phone call requesting comment.
State and federal offices have made public statements that they are investigating the incident in Flint. Solow said public comments about the existence of these normally under-wraps investigations are appropriate in certain circumstances, such as when there is a broad public outcry for one.
Attorneys offered a range of opinions on how the Justice Department would likely target its criminal actions.
Solow, who is now co-head of Katten Muchin Rosenman LLP's Environmental and Workplace Safety practice, said investigators would likely “follow the path of information.” A former Justice Department attorney, who requested anonymity, said investigations into culpability for alleged criminal actions would probably focus on individuals, rather than government entities.
Still, any resulting prosecution by the Justice Department would likely target individuals at the state and local level rather than federal, Peter Henning, a former Justice Department attorney, told Bloomberg BNA.
The EPA had general oversight responsibilities and “got information rather than disseminating the information,” he said.
Investigators will look to answer questions regarding what people knew, when they knew it, what obligations they had to reveal those obligations and whether those obligations were met, Solow said. Solow and Henning said, in this instance, it could make sense for the state and federal prosecutors to work together.
The investigations will likely take a matter of months, attorneys said.
Several attorneys told Bloomberg BNA that the Safe Drinking Water Act would not be a likely avenue for those investigations.
That law has two criminal provisions, one of which pertains to the underground injection control program and therefore wouldn't apply.
The other—tampering with public water systems—under 42 U.S.C. 300i-1 would allow criminal prosecution only for a person who “tampers (with an intention harm), attempts to tamper, or threatens to tamper with a public drinking water system.”
Essentially, this provision is intended for intentional poisoning, Solow said.
The former Justice Department attorney, who requested to remain anonymous, told Bloomberg BNA that these criminal provisions are less liberal than other environmental laws such as the Clean Air Act and the Clean Water Act—a fact that can frustrate some individuals.
“For some people, the frustrating thing is that what happened in Flint doesn't appear to violate any criminal [provisions]” within drinking water law, said Henning, now a professor of law at Wayne State University.
However, Title 18, the federal criminal code, has provisions on false reporting, false statements and failure to report that can be used for criminal enforcement to deter noncompliance.
Solow said 18 U.S.C. 1018, which only applies to public officials, requires that someone knowingly makes a false statement rather than knowingly and willfully does so.
This section has been used previously by the Justice Department, for example, when a municipal sewage treatment plant operator pled guilty to falsifying water discharge reports for the plant owned by the city of Niota, Tenn. (United States v. Clark, 2011 BL 268600 (E.D. Tenn. 2011) ; 189 DEN A-3, 9/29/11).
The state attorney general's investigation, which will look solely at state and local officials, could take a more aggressive tact than the federal one. Todd Flood, special counsel for the state attorney general's investigation, has made statements highlighting involuntary manslaughter charges as possible, according to a report by The Detroit News.
The federal investigation should use the approach laid out in the so-called Yates memo to take a hard look to see if there are individuals in the government that can be held personally accountable, Solow said (31 DEN A-13, 2/17/16).
In a Sept. 9, 2015, memo, Deputy Attorney General Sally Yates said Department of Justice criminal and civil corporate investigations should focus on individuals from the start of investigations into illegal corporate activity.
While the memo was written in relation to financial crimes, it can apply to environmental incidents such as the Flint case and another instance—the Gold King Mine spill—where EPA contractors accidentally caused more than 3 million gallons of toxic mine waste to flow from an abandoned mine site in Colorado into the Animas River (46 DEN A-9, 3/9/16).
“In both of these instances, I think the expectation is likely that the government should take the same hard look at government conduct” as if those actions had been conducted by individuals in the private sector, Solow said.
There is a lot of pressure on the Justice Department to hold people accountable in this instance, several attorneys said. But after investigating, the department may find that criminal prosecutions aren't appropriate. If that is the case, the department shouldn't follow through on criminal charges for show, they said.
That would still leave the civil avenue open for further action by the EPA, they said. There are also a number of class action and other litigation already in play to hold government entities accountable for the crisis (45 DEN A-1, 3/8/16).
These other avenues may provide some of the accountability the public wants, Quentin Pair, a former attorney for the Justice Department who is involved in the environmental justice movement, told Bloomberg BNA. There is often someone who feels the Justice Department didn't get enough out of a criminal action or settlement, even if the department was as stringent as possible, he said.
“There is certainly negligence [related to Flint],” Pair said. “But the standard of beyond a reasonable doubt is a very high bar.”
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