A Greater Sense of Urgency': EPA's Emergency Authority Under the SDWA and Lessons From Flint, Michigan

Date01 September 2017
Author
47 ELR 10786 ENVIRONMENTAL LAW REPORTER 9-2017
โ€œA Greater Sense
of Urgencyโ€:
EPAโ€™s Emergency
Authority Under
the SDWA and
Lessons From
Flint, Michigan
by Eric Moorman
Eric Moorman is a recent graduate of the
U.C. Berkeley School of Law.
๎€ด๎–๎Ž๎Ž๎‚๎“๎š
Section 1431 of the Safe Drinking Water Act (SDWA)
grants the U.S. Environmental Protection Agency
(EPA) expansive emergency authority to protect pub-
lic drinking water sources from contamination. Spe-
ci๎€Ÿcally, ยง1431 authorizes the EPA Administrator to
take any action necessary to protect public health
where a contamina nt posing an โ€œimminent and sub-
stantial endangermentโ€ to the public has enteredโ€”
or is likely to enterโ€”a public drinking water supply,
and appropriate state and local authorities have not
acted to abate the threat. In enacting ยง1431, Congress
sought to vest EPA with broad enforcement author-
ity to prevent public health crises. Surprisingly, EPA
rarely invokes ยง1431, orโ€”as in the recent water cri-
sis in Flint, Michiganโ€”invokes it too late to achieve
Congressโ€™ purpose. In the future, EPA must invoke
its emergency powers earlier and more frequently to
e๎€›ectuate the SDWAโ€™s preventative purpose and pro-
tect public health, which will allow EPA to realize its
obligation to ensure the public is supplied with safe
drinking water.
๎€žese situations should generate a greater sense of urgency.
EPA must be better prepared to timely intercede in public
health emergencies like that wh ich occurred in Flint.
โ€”U.S. Environmental Protection Agency,
O๎€ce of Inspector General (2016)1
In April 2014, residents of Flint, Michigan, began to notice
alarming changes in the quality of their tap water. Many
residents reported that their water was dark brown in color,
and had a foul taste and smell. ๎€žese changes in water
quality came shortly a fter the city of Flint switched its
water supply from Lake Huronโ€”where the city had drawn
its drinking water since 1967โ€”to the heavily polluted Flint
River. Testing of t he cityโ€™s water supply shortly after the
source water switch revea led dangerous levels of lead and
other contaminants, including carcinogens a nd harmful
pathogens such as E. Coli and Legionella.
Although city, state, and federal o๎€cials were aware of
this contamination as early as February 2015, it was not
until December 2015โ€”nearly a year laterโ€”that the city of
Flint declared a state of emergency. ๎€že state of Michigan
followed suit, declaring a state of emergency in Genesee
County in January 2016. By that time, however, many of
Flintโ€™s 100,000 residents had been exposed to harmful lev-
els of lead in their tap water.
Shortly after the city and state declared an emergency,
the U.S. Environmental Protection Agency (EPA) issued
an emergency order under ยง1431 of the Safe Drinking
Water Act (SDWA) directing the city to take steps to
abate the contamination. Section 1431 provides EPA with
broad โ€œemergency powersโ€ to take immediate enforcement
action,2 which may include the issuance of administrative
orders or the commencement of a civil suit, when the EPA
Administrator determines that: (1)๎€ˆa contaminant posing
an imminent and substantial endangerment to human
health is entering, or likely to enter, a public water system;
and (2)๎€ˆthe appropriate state and local authorities have not
acted to protect public health.
In enacting ยง1431, the U.S. Congress vested EPA with
expansive powers to actively prevent large-scale con-
tamination of public water supplies. Indeed, an in-depth
review of the SDWAโ€™s legislative history reveals that Con-
gress clearly intended EPA to use its emergency powers to
1. U.S. EPA, O๎€Š๎€Š๎€๎€š๎€™ ๎€•๎€Š I๎€—๎€”๎€๎€™๎€š๎€“๎€•๎€‹ G๎€™๎€—๎€™๎€‹๎€˜๎€’, M๎€˜๎€—๎€˜๎€‘๎€™๎€๎€™๎€—๎€“ A๎€’๎€™๎€‹๎€“:
D๎€‹๎€๎€—๎€‡๎€๎€—๎€‘ W๎€˜๎€“๎€™๎€‹ C๎€•๎€—๎€“๎€˜๎€๎€๎€—๎€˜๎€“๎€๎€•๎€— ๎€๎€— F๎€’๎€๎€—๎€“, M๎€๎€š๎€Œ๎€๎€‘๎€˜๎€—, D๎€™๎€๎€•๎€—๎€”๎€“๎€‹๎€˜๎€“๎€™๎€”
๎€˜ N๎€™๎€™๎€Ž ๎€“๎€• C๎€’๎€˜๎€‹๎€๎€Š๎€‚ EPA A๎€‰๎€“๎€Œ๎€•๎€‹๎€๎€“๎€‚ ๎€“๎€• I๎€”๎€”๎€‰๎€™ E๎€๎€™๎€‹๎€‘๎€™๎€—๎€š๎€‚ O๎€‹๎€Ž๎€™๎€‹๎€” ๎€“๎€•
P๎€‹๎€•๎€“๎€™๎€š๎€“ ๎€“๎€Œ๎€™ P๎€‰๎€…๎€’๎€๎€š 8 (2016) (17-P-0004) [hereinafter EPA M๎€˜๎€—๎€˜๎€‘๎€™๎€๎€™๎€—๎€“
A๎€’๎€™๎€‹๎€“], available at https://www.epa.gov/sites/production/๎€Ÿles/2016-10/
documents/_epaoig_20161020-17-p-0004.pdf.
2. SDWA ยง1431, 42 U.S.C. ยง300i.
๎€ข๎–๎•๎‰๎๎“๎€ˆ๎”๎€๎€ฏ๎๎•๎†๎€›๎€๎€ฎ๎‚๎๎š๎€๎•๎‰๎‚๎๎Œ๎”๎€๎•๎๎€๎€ฆ๎๎—๎Š๎“๎๎๎Ž๎†๎๎•๎‚๎๎€๎€ญ๎‚๎˜๎€๎€ค๎๎Š๎๎Š๎„๎€๎€ต๎†๎‚๎„๎‰๎Š๎๎ˆ๎€
๎€ง๎†๎๎๎๎˜๎”๎€๎€ข๎๎‚๎€๎€ท๎๎‰๎“๎š๎›๎†๎Œ๎€๎‚๎๎…๎€๎€ฃ๎“๎Š๎•๎•๎๎๎€ ๎€ด๎„๎‰๎˜๎‚๎“๎•๎›๎€๎€๎‚๎๎…๎€๎•๎๎€ ๎€ฑ๎“๎๎‡๎€๎€๎€ค๎๎‚๎–๎…๎Š๎‚๎€
๎€ฑ๎๎๎”๎Œ๎š๎€๎€๎€ธ๎Š๎•๎‰๎๎–๎•๎€๎•๎‰๎†๎Š๎“๎€๎Š๎๎—๎‚๎๎–๎‚๎ƒ๎๎†๎€ ๎‡๎†๎†๎…๎ƒ๎‚๎„๎Œ๎€๎€ ๎”๎–๎‘๎‘๎๎“๎•๎€๎€ ๎‚๎๎…๎€๎ˆ๎–๎Š๎…๎‚๎๎„๎†๎€๎€
this Article would not have been possible.
Copyright ยฉ 2017 Environmental Law Instituteยฎ, Washington, DC. Reprinted with permission from ELRยฎ, http://www.eli.org, 1-800-433-5120.

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