FLINT, MI– Criminal charges against two of the three remaining Flint water crisis cases were dismissed Wednesday, Dec. 18.
Judge David Goggins dismissed charges against Steven Busch and Michael Prysby, two former state environmental officials, after reviewing their cases. The two former officials worked for Michigan Department of Environmental Quality and had oversight responsibility for Flint’s water system after it began using the Flint River as its water source in 2014 and 2015.
Both men took plea deals with former special prosecutor Todd Flood a year ago, pleading no contest to misdemeanors that were to be reviewed and potentially dismissed a year later.
Molly Kettler, special assistant to the attorney general, said the men will have no lasting legal consequences because of the plea deals made by the former prosecution team. Kettler was assigned by Michigan Solicitor General Fadwa Hammoud to replace the former prosecution team led by Flood and to hold government officials accountable for Flint’s water crisis.
“I must say, in all candor to the court and to everyone here, in well over 25 years of practicing law I’ve never seen anything like this,” Kettler said. “These pleas were taken when the prior prosecuting authority brought the defendants here to court the day after Christmas without making any announcements so the victims could be here or so that the public was aware of it.”
After Flood was fired as special prosecutor by Hammoud, pending criminal cases against eight defendants were dismissed and the unresolved plea agreements with Busch, Prysby and another DEQ official — Liane Shekter-Smith — were left in limbo.
“As we move forward from today, these defendants will be required to continue to cooperate,” Kettler said. “What I hope and pray everyone will take away from this today is that this is not the end for the citizens of the city of Flint.”
As part of their agreement, Busch and Prysby are required to cooperate with Kettler’s team by providing truthful testimony in future proceedings. Kettler said her team has already taken more than 35 hours of interviews with the two former officials.
“This is something that should have been done prior to giving pleas. There were no formal proffers taken before the pleas were offered,” Kettler said. “Therefore there were no real or meaningful opportunities for anyone before to really legitimately evaluate the value of what these witnesses had to offer and what a commensurate plea for them would be. That being said, we’ve moved ahead to do our due diligence and we’re prepared to proceed with requiring their truthful testimony in future proceedings.”
Prysby, a district engineer, pleaded no contest to violating the Safe Drinking Water Act. Busch and Shekter-Smith, who is scheduled to return to court for a review in January, pleaded no contest to disturbing the peace in a public building.
The pain residents in Flint are experiencing is “life-long and generational,” Kettler said.
“They will live with this for the rest of their lives. We acknowledge that pain and suffering are compounded by the feeling of being betrayed by their government,” Kettler said. “We will work tirelessly, day, night and weekends, to not only fully investigate and prosecute all of those with culpability for this crisis but also to rebuild the trust of the citizens.”
After dismissing the remaining criminal charges against eight Flint water defendants because of what she described as serious flaws in the cases, Hammoud and Wayne County Prosecutor Kym Worthy said earlier this year they were renewing their investigation of crimes related to the Flint water crisis.
The solicitor general hasn’t publicly spoken about that investigation since a town hall meeting in Flint in June.
Before the comparisons to Flint, Michigan, before trucks full of bottled water rumbled through Newark’s streets, before parents rushed to test their kids for lead poisoning, somebody knew there was a problem.
A state regulator, alarmed by Newark’s water disinfection practices, warned city officials that residents should boil their water, according to never-before-released letters from 2014 obtained by NJ Advance Media.
“If the monthly operator reports are correct then the water provided … potentially compromised public health,” the state official wrote, citing five months of water testing.
A boil water notice never came, and the problem then wasn’t lead. But the episode was the first of many red flags at the Pequannock treatment plant, which supplies water to 300,000 North Jersey residents.
Five years later, Newark found itself consumed by crisis.
An NJ Advance Media review of hundreds of pages of previously unreported public records provides the clearest picture yet of the fateful decisions that caused a national lead emergency in New Jersey’s largest city.
The records place blame on decision-makers at every level who failed to heed warning signs over the last seven years. They failed to keep the plant in proper working order. They failed to follow the law and skirted state mandates. Worst of all, they failed to keep drinking water safe for hundreds of thousands of residents.
It was the perfect storm.
The woman leading the agency that managed Newark’s water treatment was thrown in jail, guilty in a multimillion-dollar kickback scheme that dated back to 2008. She wasn’t alone. Nine people in all have pleaded guilty or been charged. The agency she ran dissolved, leaving Newark suddenly in charge of its own water system in 2013.
In the turbulence that followed, the city continued to rely on Andrew Pappachen, the controlling plant operator who had worked with Newark’s water since 1974 and was not caught up in the scandal. Pappachen knew the plant intimately and ran it “admirably,” according to one report. He ruled like a king.
Even the state seemed to hold no power when it came to Pappachen, and it failed to force long-term fixes, records show. It continued to let Pappachen implement Band-Aid solutions when major surgery was needed, experts said.
That neglect, coupled with an aging system, left cringe-worthy conditions. Drain valves constantly leaked. Thick crusts coated water filters that were clogged with mudballs.
All the cracks in the system make today’s lead crisis seem nearly inevitable.
This isn’t black and white. Water chemistry is complex. (Don’t worry, we drew a comic that breaks it down for you). Systems have multiple layers of engineers and overseers. There’s no simple answer to lay the fault at one person’s feet. But, experts say, officials in Newark and at the state made decisions that didn’t prioritize people’s health.
The state says they took appropriate actions and Newark’s water wasn’t concerning until recently. City officials say they still don’t know what happened.
But how could they not know?
Documents analyzed by NJ Advance Media and experts show a long history of the Pequannock plant racking up violations and not following the rules. Small repairs only served to make things worse in the long run, and eventually led to the lead crisis.
“You move one piece of the puzzle to combat one problem and you create another,” said Diane Calello, MD, a national expert on lead poisoning and the Executive and Medical Director of the New Jersey Poison Control Center at Rutgers New Jersey Medical School.
“And the whole thing can fall apart.”
Why is lead dangerous?
Let’s start with Kathleen Scudillo.
In 2016, her now 10-year-old son had elevated lead levels in his blood, which made it harder for him to learn and focus in school. He could’ve been poisoned by the lead paint in the family’s apartment that the landlord didn’t fix. Or from the lead at his former school’s water fountains. Or from the tap water in his home, pumped through a thin tube made of lead.
Or, maybe, all of the above.
“Having this little boy who is full of such life but is suffering already from a learning disability,” Scudillo said, “it’s frustrating.”
Exposure to lead is particularly dangerous for young children. It seeps into their bones, causing them to act out in school or have trouble learning, according to the Centers for Disease Control and Prevention. Some suffer from a range of disabilities. The contaminant isn’t good for adults, either, but is harder to detect because it causes common ailments such as high blood pressure or makes concentrating hard. It can make a pregnant woman have a miscarriage and reduce sperm count in men.
Lead is all around us. Since it was cheap and malleable, it was used in household plumbing like brass faucets. On a larger scale, lead snakes underneath thousands of older homes through garden-hose-sized pipes called lead service lines that pump water from the main to your home.
It’s especially common in old cities like Newark, which has a population of about 280,000, outdated infrastructure and a history of financial woes. A quarter of residents live below the poverty line and a majority of Newarkers rent their homes — subject to an aging stock of housing options.
But lead doesn’t just fall off old plumbing. The chemical makeup of the water that flows through it matters.
The more acidic the water, the more corrosive it is — meaning that, as it flows through lead pipes, it starts chipping away at the metal. The longer water sits in lead lines, the more time it has to keep eating away at the contaminant, dissolving it into the tap supply.
In Newark, the water’s acidity levels were tinkered with for a whole host of reasons. Each change built on the one that came before, until, all mixed together, they resulted in a public health crisis.
Think of water chemistry like a game of Jenga, one played over many years. You make decisions in the short-term to avoid disaster. But every time you change the amount of chemicals in the water to address one problem, it affects the whole system. Sudden changes — or inattention — can bring the whole game tumbling down.
Set up for failure
More than five years ago, Newark was ravaged by a different kind of water scandal. This one involved sweetheart deals and bloated invoices for no-work contracts.
The Newark Watershed Conservation and Development Corporation, which the city contracted to run water treatment operations in 1998, was bankrupt. An FBI investigation found Linda Watkins-Brashear, the top dog at the quasi-public agency, which was supposed to be overseeing water quality, was running a multi-million dollar kickback scheme.
Then-Mayor Cory Booker, who has now launched a bid for the presidency, for years “proactively (addressed) problems with Newark’s aging water system,” his campaign said. The senator moved to shutter the watershed when he found out about wrongdoing in 2013, the campaign has previously said.
Newark’s water and sewer department eventually took over plant management and its workers.
The transition to city control wasn’t easy, records show. Mundane tasks like ordering supplies were caught in unexplained bureaucratic delays, according to a city report. Longtime employees resigned and weren’t replaced. Those who previously worked for the city were angry that watershed workers made more money, a consultant found. There was friction, low morale and confusion as the ongoing federal investigation hung over the awkwardly married entities.
The Pequannock plant, located about an hour’s drive northwest of Newark in West Milford, was a place where complacency was king and decisions were too centralized under one person: Pappachen, according to city-commissioned reports.
Pappachen, who now works with Trenton’s water, ran the day-to-day operations at the Pequannock plant for decades until he retired from Newark last year.
Pappachen said he had the state’s highest licenses to run a water system and was probably “at that time the only one with thorough knowledge on how the system runs.”
He “successfully” led the plant, was the most qualified among the staff and competently operated the utility for many years, according to a consultant who reviewed the plant’s infrastructure needs.
But the same report in 2016 also said there wasn’t enough accountability of maintenance and other routine work. It found what previous consultants had long echoed: The plant’s infrastructure was falling apart and needed at least $47 million in fixes.
The report described the dire condition of the plant. It also found part of the process used to filter out contaminants in the water had been inefficient for years. So had the chemical machine responsible for controlling acidity levels — levels that likely caused lead amounts to nearly double the federal limit in 2017. By early 2019, those numbers would rise to nearly four times allowable lead levels.
“I don’t know if anybody did anything wrong or if there was a mistake, if there was a bad decision,” current Mayor Ras Baraka said in an interview in October. “The only thing I do know is that the system was in flux all of the time.”
Even the smallest decisions at the Pequannock plant needed a stamp of approval from Pappachen, documents show. It was a blessing and a curse.
Newark’s water system was particularly complicated, Pappachen told NJ Advance Media. As the operator of one of the largest publicly run systems in the country, his job was difficult. There are ever more stringent federal and state regulations plants have to meet, which includes constantly taking water samples to make sure all the things that can make people sick are killed off.
In 2012, a new rule came down the pipeline from federal regulators.
It clamped down on how water systems measure amounts of cancer-linked contaminants, which can increase people’s risk of cancer if consumed over a long period of time, making it much harder to meet the rule.
These particular contaminants are created when chemicals used to disinfect the water of harmful stuff like bacteria mix with debris that hasn’t been filtered out of the water.
It’s like Goldilocks. If you don’t add enough chlorine (a disinfectant), you’re not getting rid of all the bad organisms in the source water. But if you add too much and there’s too much junk in the water that has not been filtered out, the two can create cancer-causing contaminants.
To avoid getting in trouble with the new rule, the city settled on a solution around 2012 that would ultimately begin the long, bumpy road toward rising lead levels.
Newark made the water more acidic.
More acidic water is more corrosive. Remember those lead pipes sprawled under homes?
Here’s a little bit of high school chemistry to understand what happened: Acidity, also known as pH levels, is key to the effectiveness of every treatment and needs to be closely watched. It’s an inverse relationship — dropping pH makes water more acidic while raising pH makes it less acidic.
Long story short, more acidic water can prevent some of those cancer-causing contaminants from forming. But, it can also cause lead.
This is well-known, experts say. And in case it wasn’t, federal officials also warned water systems to be careful about tweaking pH to meet the 2012 rule because it could create a lead problem, according to guidelines by the U.S. Environmental Protection Agency.
“Most of the time (water systems) are just trying to find a quick solution,” said Ngai Yin Yip, an environmental engineering professor at Columbia University who reviewed some documents at the request of NJ Advance Media. “They are just trying to patch up whatever is not working until something catastrophic happens.”
When Newark dropped the water’s pH around 2012, it inadvertently began decreasing the effectiveness of lead prevention treatment known as corrosion control, a consultant concluded. This is key and the reason why really old plumbing suddenly became problematic: Corrosion control forms a protective layer inside lead pipes to keep them from flaking into the water.
Pappachen, however, staunchly denies he ever made the water more acidic.
“People who looked at things don’t have the knowledge of the system. How can they blame (the lead problem on) pH from five years ago?” Pappachen told NJ Advance Media. “Nobody lowered the pH. That is not true.”
Records and regulators contradict his statement.
Daily plant readings between 2012 and 2016 — signed by Pappachen — show wide variations in acidity levels and some sharp pH drops in the water coming out of the Pequannock plant. Experts say that should have raised alarm.
The New Jersey Department of Environmental Protection, which regulates water systems, said tweaking pH was a “common and accepted” way to meet these rules and Newark did not need state approval to make modifications. Only big treatment changes, like using a new chemical or altering how you measure treatment effectiveness, needs a state OK.
“As water chemistry is tweaked, you sometimes see unanticipated results,” Shawn LaTourette, NJDEP’s chief of staff, told reporters in September. “But none of this is instantaneous.”
City officials say they don’t know who, if anyone, was aware that changing pH could create bigger problems over time.
“All those results are going to everybody, they’re reviewing it, but nobody sees an issue,” said Kareem Adeem, acting director of Newark’s water and sewer department, which oversees the plant. “Who are we to say if somebody really knew? That’s the big question.”
Baraka said his focus is singular: Getting rid of the underground lead pipes.
“I’ve never been in the weeds on this water stuff until this lead problem really hit,” he said. “Unless somebody tells me, my expectation is that everything is OK unless I get a report that says otherwise, unless the NJDEP steps in.”
“I have not really been going backwards,” he added. “I don’t know what happened back then, I don’t have any knowledge of it … I’m not a scientist, I have to go by these people’s word and I trust them.”
In May 2014, Newark ran into trouble with the state over the way it was disinfecting its water.
“Newark Water Department should have been on a BOIL WATER NOTICE for that whole time,” a state regulator wrote city officials in an email, citing five months of water testing.
Pappachen insisted then — and continues to insist — there was nothing to worry about. Those water calculations could be wrong, he told state officials, citing computer errors. Plus, they were taken before disinfection chemicals had enough time to work.
The NJDEP regulator, Karen Fell, said Pappachen’s explanation was not logical and his number crunching made no sense. What was the purpose of having requirements if the plant wasn’t going to follow them, she asked. (Fell, who is no longer a state employee, did not respond to requests for comment.)
The muddling, months-long exchange that followed between state regulators and Newark’s water operator over the seriousness of the problem ended with the NJDEP backing down and letting Newark submit revised water testing results.
But the plant had already broken the law. It had dropped its benchmark for how many pathogens it needed to kill without asking the state. In other words, it graded itself on a self-imposed curve. The federal government, too, reprimanded Newark for not consulting the state and going rogue.
Even though Newark made it easier to fulfill disinfection requirements, it still wasn’t meeting the mark, records show.
“You keep moving that target and that’s not what you do to protect public health,” said Elin Betanzo, a former U.S. Environmental Protection Agency official who helped expose the lead crisis in Flint, Michigan. “I would say there’s been a public health risk for a long time.”
Pappachen said there was never a health risk because most customers get a second dose of chlorine further down the distribution line before the water comes out of the tap. A business in Butler is an exception but he said requirements were met “most of the time” before water reached that location.
Water leaving the Pequannock plant did not meet daily disinfection requirements 40% of the time between 2013-2016, according to reports the city filed during those years. (Records for four months of testing during that time period could not be located.)
More recent probes into Newark’s water treatment practices question if those numbers — which the Pequannock plant self-reported — are even correct.
A city consultant hired by Newark said the plant had been miscalculating how it was disinfecting the water, fumbling a complicated formula that helps determine if water is properly disinfected. The consultant looked at data from 2017 and 2018. To put it another way, the water wasn’t properly disinfected even more frequently than represented in its daily reports. The error was described in new court filings by the Natural Resources Defense Council, which is in an ongoing lawsuit with the city and state over lead.
Poorly disinfected water raises the probability of bacteria and pathogens multiplying in the water. It’s not a high likelihood, but poses a greater risk for the elderly and immune-compromised. Drinking that water can make people immediately sick with abdominal cramps, diarrhea or stomach infections.
It’s rare for a plant to fail basic disinfection at such a high rate as Newark did, according to water engineering experts. Repeated and extensive misses like this point to a fundamental flaw in how the plant was designed, experts said. Plants were built to meet this very elemental goal of making sure the water doesn’t have bacteria — among the most important tasks for a water system and one that was revolutionary when it was first introduced because it stopped cholera epidemics.
“You gotta have those fundamentals. We’re not talking bells and whistles and extras,” Betanzo said.
Newark’s solution to its persistent disinfection issue was a little bit of deja vu.
It boosted acidity levels — again, according to the state.
State officials said the city dropped pH levels in 2015, because adding more disinfectant (chlorine) would have triggered those cancer-causing contaminants.
It happened anyway. And disinfection-related troubles continue according to city-commissioned reports, state documents and state violation records.
Newark recorded high levels of chemicals that can increase a person’s risk of cancer if consumed over a long period of time between July 2015 and June 2016. Those contaminants returned again last year and remain in the water. The state also issued four disinfection violations between November 2015 and February 2016.
Experts say federal rules allow some flexibility in meeting daily disinfection requirements, such as a few days a month, but not to Newark’s extreme.
Pappachen, who often gave confusing and rambling answers to NJ Advance Media, said the plant’s treatment practices never posed a health hazard. He also said he couldn’t remember much from his time in Newark and referred a reporter to public records.
Those records show Newark’s water system was among the worst rule-breaker in the state when compared to similarly sized systems in the last five years. During that time, Newark accumulated the most serious violations that jeopardized public health. It was named a “serious violator” by the federal government for three quarters in 2016 and 2018 — a label reserved for systems in need of urgent attention.
The state’s missing warning
When a water system founders, the state is supposed to step in.
But records raise questions about why the state didn’t force permanent fixes to Newark’s recurring problems. The solutions Pappachen took to avoid short-term issues didn’t prioritize public health in the long run, experts who reviewed documents at the request of NJ Advance Media said.
In 2016, the EPA raised concerns about New Jersey’s enforcement of federal lead rules.
The audit said the state couldn’t find records indicating it set up a system that would have acted as an early alarm for failing lead prevention treatment, records show. These measures are supposed to guide water systems on how acidic their water should be.
The NJDEP still hasn’t found evidence it ever set these parameters for Newark, according to records in the NRDC lawsuit.
“If the state can’t find it, they can’t enforce it,” said Betanzo, the founder of Safe Water Engineering. “Even more so, the water systems can’t comply with it if they don’t know what they’re complying with.”
“That means New Jersey oversight completely failed them.”
The NJDEP said water chemistry is complex, and the impact of certain changes are slow. The agency said it continues to work with Newark to ensure there is a “long-term plan” to fix things.
Until lead levels spiked in 2017, state officials said, “there was no indication that Newark’s water chemistry should be of concern.”
When pressed about the 2014 emails, state officials said regulators decided a boil water was not required, citing their initial concern as an example of their oversight.
Complying with the rules “is always a water system’s responsibility,” the agency said in a statement, adding that the NJDEP “took appropriate action” when necessary.
Records show state officials cautioned the city in 2018 that improper disinfection could be contributing to lead release.
The NJDEP said it continues to work with Newark and the federal government “to address the presence of elevated lead in the drinking water in the portion of Newark served by the Pequannock Water Treatment Plant” through two enforceable orders and a $1 million program to assist with the distribution of filters and public education.
When you look at all of this, it’s still not clear why decision-makers at every level of oversight — from the person leading the plant to state regulators — didn’t step in to ensure the long-term and permanent protection of residents consuming the water.
What happens now?
A $120 million deal between the city and Essex County will replace 18,000 underground lead pipes so the element can no longer leach into the drinking water.
About 3,600 of those lines are located in the eastern side of Newark where residents get water from a different treatment plant.
It’s going to take more than two years to replace them all. So far, nearly 4,000 lead lines have been changed. Until that’s complete, residents will rely on city-issued filters, which have been shown to remove 99% of lead from tap water.
This summer, alarming test results questioned whether those filters were working to remove enough lead from the water and keeping people safe. The puzzling results prompted a massive bottled water distribution effort as city, state and federal officials rushed to test more filters. In the end, most filters worked. A few were overwhelmed by high amounts of lead and didn’t work to make water safe.
Most people in the city have been eased off living on bottled water, but vulnerable populations, like pregnant women, are still allowed to pick up free water from the city.
This fall, city officials approved a $1.3 million contract to begin the larger structural fixes at the Pequannock plant.
“As we move forward on correcting the little things, we start focusing on some of the big things,” Adeem, who began leading the department late last year, said. “We see something that needed to be done and we did it.”
It’s going to be a long road ahead.
Newark continues to violate allowable limits of cancer-causing acids in the water with violations in 2018 and 2019. The plant also recorded a disinfection-related violation in December 2018 and January 2019.
City officials say the days of changing the rules and not meeting the standards are behind them.
Jerry Notte, the current Pequannock plant operator who took over from Pappachen in March 2018, said Newark is currently in compliance with all disinfection requirements. A new treatment system is in the works, and is already reducing the amount of possible carcinogens.
“I can’t reconstruct the past. What I can tell you is everything is on track,” Notte said. “It’s hard to keep a lot of these projects going at the same time but the city hasn’t been afraid of that. But there’s only so quickly you can get these out the door.”
The NJDEP entered into two agreements with the city in the last year forcing long-term fixes. A new corrosion control treatment is expected to reduce lead levels by the end of the year.
“We’re marching down this road to get us to a better place,” Baraka said. “We’re going to address it.”