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Burgess v. United States

United States District Court, E.D. Michigan, Southern Division

April 18, 2019

JAN BURGESS, and all 2, 959 individuals identified in the Burgess FTCA administrative Complaint, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant. WILLIAM THOMAS, and all 1, 923 individuals identified in the Thomas FTCA administrative Complaint, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          OPINION AND ORDER

          LINDA V. PARKER U.S. DISTRICT JUDGE

         This is one of many cases emerging from what is now infamously known as the Flint Water Crisis. The crisis arose when the City of Flint, Michigan (“City” or “Flint”), changed the source of its water supply from the Detroit Water and Sewerage Department (“DWSD”) to the Flint River. The raw water drawn from the Flint River, processed through Flint's outdated and previously mothballed water treatment plant, was highly corrosive and not properly treated by the City's public works department. As a result, water with excessive lead and copper levels flowed through the City and into residents' homes, causing them physical injury and damage to water mains and service lines.

         The Sixth Circuit recently described “[t]he harmful effects” from the switch in water sources as “swift” and “severe.” Guertin v. State of Michigan, 912 F.3d 907, 915 (2019). Flint residents complained of foul smelling and tasting water, their hair began to fall out, they developed skin rashes, there were positive tests for E. coli, a spike in Legionnaires' disease, and an elevation in the blood lead levels of Flint's children. Id. Criminal and civil proceedings have followed to hold the many Michigan and Flint officials and employees and independent contractors legally responsible for this crisis. See, e.g., id.; Mich. Dep't of Env. Quality v. City of Flint, 282 F.Supp.3d 1002, 1004 (E.D. Mich. 2017) (listing some of the cases). In the above-captioned lawsuits, groups of Flint residents are suing the United States for the Environmental Protection Agency's role under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680.[1]

         Plaintiffs allege that Environmental Protection Agency (“EPA”) officials and employees negligently responded to the water crisis, including by failing to utilize the agency's enforcement authority under the Safe Drinking Water Act (“SDWA”) to intervene, investigate, obtain compliance, and warn Flint residents of the health risks posed by the water. The United States (hereafter also “Government”) has filed motions to dismiss Plaintiffs' lawsuits for lack of subject matter jurisdiction. The United States contends that it has not waived its immunity from Plaintiffs' claims because Michigan law would not impose liability on private individuals in similar circumstances-the extent to which the FTCA only waives Government immunity-and because the alleged misconduct by the EPA is excepted from liability under the FTCA's discretionary function exception. The motions have been fully briefed.

         The impact on the health of the nearly 100, 000 residents of the City of Flint remains untold. It is anticipated, however, that the injury caused by the lead-contaminated public water supply system will affect the residents for years and likely generations to come. While this Court will not decide today the issue of ultimate liability, it can today state with certainty that the acts leading to the creation of the Flint Water Crisis, alleged to be rooted in lies, recklessness and Anderson v. E.P.A., No. 18-cv-12725 (E.D. Mich. filed Aug. 31, 2018). The Court has entered stipulated orders staying those cases pending its decision on the motions here. profound disrespect have and will continue to produce a heinous impact for the people of Flint.

         The issue presented to the Court by the Government's pending motions to dismiss is not whether EPA officials and employees were negligent or even abused their discretion in responding to the Flint Water Crisis. Instead, the issue is whether the Government is subject to tort liability under the FTCA for that conduct.

         I. Standard for Dismissal

         The Government's motions to dismiss for lack of subject matter jurisdiction are filed pursuant to Federal Rule of Civil Procedure 12(b)(1). Where the defendant is raising a factual challenge to the existence of subject matter jurisdiction, as is the case here, the court must “‘weigh the conflicting evidence to arrive at the factual predicate that subject-matter does or does not exist.'” Wayside Church v. Van Buren Cty., 847 F.3d 812, 817 (6th Cir. 2017) (quoting Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2008)). “[N]o presumptive truthfulness applies to the [plaintiff's] factual allegations” and the “court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).

         “‘[I]t is a universal rule . . . that a party who invokes the jurisdiction of a federal court must allege all facts necessary to give the court jurisdiction of the subject matter.'” Carlyle v. United States, 674 F.2d 554, 556 (6th Cir. 1982) (quoting Stewart v. United States, 199 F.2d 517, 520 (7th Cir. 1952)). Therefore, a plaintiff suing under the FTCA must invoke jurisdiction by alleging facts not excepted under the statute. Id. This includes facts establishing that the complaint is facially outside the exceptions of the FTCA's discretionary function exception. Id. If the plaintiff succeeds, the burden falls on the government to prove the FTCA's inapplicability, including that the plaintiff's claims fall within any of the statute's exceptions.

         II. Background Regarding Control of Public Water Supply Systems in Michigan and the EPA

         The SDWA was enacted in 1974 “to assure that water supply systems serving the public meet minimum national standards for protection of public health.” H.R. Rep. No. 93-1185 (1974), reprinted in 1974 U.S.C.C.A.N. 6454, 6454. The statute authorizes the EPA “to establish Federal standards for protection from all harmful contaminants[] … applicable to all public water systems[.]” Id. at 6454-55. It also “establish[es] a joint Federal-State system for assuring compliance with th[o]se standards and for protecting underground sources of drinking water. Id. at 6455.

         States adopting, among other things, drinking water regulations that are no less stringent than the national primary drinking water regulations are eligible to obtain primary enforcement authority [primacy] over their public water systems. 42 U.S.C. § 300g-2(a)(1). Michigan has obtained primacy and the Michigan Department of Environmental Quality (“MDEQ”) thus has primary enforcement authority with respect to the State's water systems. See Mays v. City of Flint, 871 F.3d 437, 446 (6th Cir. 2017). As the Sixth Circuit has described it, “the MDEQ-EPA relationship is a model of cooperative federalism ….” Id. at 447.

         Nevertheless, the SDWA reserves the EPA's oversight and primacy States must periodically submit compliance reports to the EPA for that purpose. 42 U.S.C. §§ 300g-3, 300i; see also 40 C.F.R. §§ 141.82(i), 141.83(b)(7), 141.90, 142.15, 142.19, 142.30. For example, Section 1414 of the statute sets forth the EPA's response when a public water system is not in compliance. With respect to primacy States, the provision reads in relevant part:

(a) Notice to State and public water system; issuance of administrative order; civil action
(1)(A) Whenever the Administrator finds during a period during which a State has primary enforcement responsibility for public water systems (within the meaning of section 300g-2(a) of this title) that any public water system--
(i) for which a variance under section 300g-4 or an exemption under section 300g-5 of this title is not in effect, does not comply with any applicable requirement, or he shall so notify the State and such public water system and provide such advice and technical assistance to such State and public water system as may be appropriate to bring the system into compliance with the requirement by the earliest feasible time.
(B) If, beyond the thirtieth day after the Administrator's notification under subparagraph (A), the State has not commenced appropriate enforcement action, the Administrator shall issue an order under subsection (g) requiring the public water system to comply with such applicable requirement or the Administrator shall commence a civil action under subsection (b).

42 U.S.C. § 300g-3. Section 1431 of the statute grants the EPA certain emergency powers:

(a) Actions authorized against imminent and substantial endangerment to health
Notwithstanding any other provision of this subchapter, the Administrator, upon receipt of information that a contaminant which is present in or is likely to enter a public water system or an underground source of drinking water, or that there is a threatened or potential terrorist attack (or other intentional act designed to disrupt the provision of safe drinking water or to impact adversely the safety of drinking water supplied to communities and individuals), which may present an imminent and substantial endangerment to the health of persons, and that appropriate State and local authorities have not acted to protect the health of such persons, may take such actions as he may deem necessary in order to protect the health of such persons. To the extent he determines it to be practicable in light of such imminent endangerment, he shall consult with the State and local authorities in order to confirm the correctness of the information on which action proposed to be taken under this subsection is based and to ascertain the action which such authorities are or will be taking. The action which the Administrator may take may include (but shall not be limited to) (1) issuing such orders as may be necessary to protect the health of persons who are or may be users of such system (including travelers), including orders requiring the provision of alternative water supplies by persons who caused or contributed to the endangerment, and (2) commencing a civil action for appropriate relief, including a restraining order or permanent or temporary injunction.

42 U.S.C. § 300i. The EPA has enacted regulations pursuant to the SDWA setting forth primacy States' obligations and the EPA's oversight and responsibilities. See 40 C.F.R. §§ 142.10 et seq.

         The EPA has ten regional offices, each of which is responsible for executing EPA programs within several States and territories. “Region 5” serves six States, including Michigan, and a number of tribes. Congress has granted the EPA Administrator the authority to “delegate any of his functions under [the statute] (other than prescribing regulations) to any officer or employee of the Agency.” 42 U.S.C. § 300j-9. The EPA Administrator has delegated his authority under Sections 1414 and 1431 of the SDWA, 42 U.S.C. §§ 300g-3 and 300i, to the Regional Administrators and the Assistant Administrator for Enforcement and Compliance Assurance. (Def's Mot. Exs. 66-68, ECF Nos. 41-7, 41-8, 41-9.)[2]

         Against this legislative and administrative backdrop, the Court turns to the facts relevant to Plaintiffs' allegations in these lawsuits.

         III. Factual Background

         Flint owns and operates a public water system that provides drinking water to its nearly 100, 000 citizens. Before April 2014, Flint purchased finished drinking water from the DWSD. DWSD drew its water from Lake Huron and treated the water to control potential contaminants, including copper and lead levels.

         In approximately late April 2014, Flint switched its water source from DWSD to the Flint River. The use of the Flint River as a water source was intended to be temporary, as Flint planned to connect to the Karegnondi Water Authority pipeline in 2016, which also draws its water from Lake Huron. (See Def.'s Mot. Ex. 43 at 1, ECF No. 40-3 at Pg ID 1349.) MDEQ and Flint did not, and were not required to, notify the EPA of the changing water sources for Flint. (Def.'s Mot. Ex. C at 37, ECF No. 37-3 at Pg ID 862.) The EPA does not approve such a switch in a primacy State. (Id. at 35, Pg ID 862; Ex. 15 at 2.) MDEQ approved Flint's water source change, but did not require Flint to begin corrosion control prior to the switch. (Ex. 2 at 1, ECF No. 38-1; Ex. 3 at 2, ECF No. 38-2 at Pg ID 1142.) MDEQ interpreted the Lead and Copper Rule (“LCR”) as allowing Flint to complete two consecutive six-month rounds of sampling prior to determining what, if any corrosion control treatment was needed for the Flint River water. (Id. Ex. 20, ECF No. 39-3 at Pg ID 1206-07; Ex. 22 at 1-3, ECF No. 39-5 at Pg ID 1209-1211.) Its wrongful and damaging interpretation was later admitted by MDEQ Director Dan Wyant.

         The Flint River provided inconsistent water quality because of elevated levels of organic matter. (Id. Ex. 35 at 1, ECF No. 39-18 at Pg ID 1313.) By August 2014, elevated levels of fecal coliform and E. coli bacteria were detected in the water and the MDEQ issued a “boil water advisory” instructing Flint residents to not drink the water. (Def.'s Mot. Ex. E at 66, ECF No. 37-5 at Pg ID 975; Pls.' Resp. Ex. 70 at 7, ECF No. 53-27 at Pg ID 2114.) A second E. coli exceedance occurred on September 5, 2014. (Id.) The City's use of chlorine to address bacteria exceedances led to another problem-high levels of total trihalomethane (“TTHM”), which poses health risks to consumers. (Pls.' Resp. Ex. 3, ECF No. 53-4 at Pg ID 1931; Ex. 70 at 7, ECF No. 53-27 at Pg ID 2114.)

         Flint's residents immediately noticed the change in the quality of the water when the City switched its water source to the Flint River. Jennifer Crooks, Region 5's Michigan Program Manager for the Drinking Water Program, who was responsible for reviewing and responding to complaints from Michigan citizens on the agency's behalf, testified in this matter that she had never received as many citizen complaints since she began working for the EPA in 1987 than she did after the Flint water switch. (Def.'s Mot. Ex. E at 29, 30-32, ECF No. 37-5 at Pg ID 965-66.) When Region 5 received citizen complaints from Michigan residents, employees would discuss the issues with technical contacts, check for violations in the various databases, and contact the State person responsible for the water system and discuss the complaint. (Id. Ex. E at 24, 49, ECF No. 37-5 at Pg ID 964, 970; Ex. F at 33-34, ECF No. 37-6 at Pg ID 1018-19.) After Region 5's employees conducted background research and communicated with the State, they responded to citizens through emails, phone calls, and written letters. (Id. Ex. E at 36-37; see also id. Exs. 15, 16, 18.)

         In its communications with Flint residents, the EPA indicated that MDEQ was working closely with the City “to ensure that the citizens of Flint are provided drinking water that meets health standards.” (See, e.g., id. Ex. 15 at 1, ECF No. 58-14 at Pg ID 1184.) The EPA informed Flint's residents that “[t]he most recent laboratory analyses obtained from MDEQ of the City of Flint's drinking water indicate that almost all regulated contaminants meet State and Federal health standards, as required under the Federal and Michigan Safe Drinking Water Acts.” (Id.) TTHMs pose a health risk for some sub-populations, such as the immune-compromised and pregnant women. (See Id. Ex. 14 at Pg ID 1183.) Despite being aware of those risks (see id.), the EPA did not convey those risks in at least some of its communications with Flint residents. (See id. Exs. 15, 18.)

         In early 2015, Flint citizen LeeAnn Walters contacted the EPA after receiving the test results of drinking water samples the City of Flint had collected from her home. (Def.'s Mot. Ex. 3 at 2-3, ECF No. 38-2 at Pg ID 1142-43.) Those results showed highly elevated lead and iron levels.[3] (Id.) Ms. Crooks from Region 5 sent an email to MDEQ the day after receiving the test results, documenting her concerns and requesting assistance in dealing with the high lead levels in the Walters' home. (Id. Ex. E at 69, ECF No. 37-5 at Pg ID 975.) MDEQ indicated in response that the lead was coming from the home's plumbing, although Ms. Walters had indicated that all of the plumbing was plastic. (Id. Ex. 3 at 3, ECF No. 38-2 at Pg ID 1143.)

         Ms. Crooks and Miguel Del Toral, Region 5's Regulations Manager for the Groundwater and Drinking Water Branch, were in subsequent communication with MDEQ and the City concerning Ms. Walters' situation and whether there was a more widespread lead issue. (See Pls.' Resp. Ex. 1, ECF No. 53-2.) In a February 26, 2015 email to MDEQ officials, Ms. Crooks stated that (1) Flint must have Optimized Corrosion Control Treatment (“OCCT”), (2) the test results for the Walters' home must “be included in with compliance calculation of the 90th percentile”, and (3) the City cannot flush the system in advance of taking compliance samples. (Id. at 3-4, Pg ID 1921-22.) Mr. Del Toral, who had been copied on Ms. Crooks' email, sent a follow-up email to MDEQ on February 27, 2015, explaining his concerns about the lead situation and Flint's testing protocols. (Id. at 2-3, Pg ID 1920-21.) Mr. Del Toral conveyed that pre-flushing the tap before collecting testing samples “biases the results low by eliminating the highest lead values” and “provides false assurance to residents about the true lead levels in the water.” (Id.) Mr. Del Toral suggested that MDEQ contact Region 5's “resident expert”, Mike Schock, for help with compliance. (Id.) Ms. Crooks forwarded Mr. Schock's contact information to MDEQ the same day. (Id.)

         On February 27, 2015, Stephen Busch from the MDEQ responded to Ms. Crooks' and Mr. Del Toral's emails, thanking them for their information and indicating: “[W]e will take it under consideration.” (Id. at 1, Pg ID 1919.) Mr. Busch represented in the same email, among other things, that Flint “[h]as an Optimized Corrosion Control Program”, “[c]onducts quarterly Water Quality Parameter monitoring at 25 sites and has not had any unusual results[, ]” and “[h]as never had a 90th percentile lead AL exceedance[.]” (Id.)

         Region 5 visited the Walters' home on April 27 and May 6, 2015, to inspect the plumbing and conduct additional testing. (Def.'s Mot. Ex. 3 at 3, ECF No. 38-2 at Pg ID 1143.) Finding that the interior plumbing was primarily plastic, the EPA concluded that it was not the source of the high lead levels found in the water at the residence. (Id.) Shockingly, as Mr. Del Toral noted in an email to colleagues within Region 5, local officials were telling Flint residents that the source of the high lead was the home's internal plumbing. (Pls.' Resp. Ex. 2 at 5, ECF No. 53-3 at Pg ID 1929.)

         During EPA's May 6 trip to the Walters' home, the service line to the residence was replaced and the EPA sent three portions of the extracted line for testing, which confirmed that a portion of the line was made of galvanized iron pipe. (Id.) The EPA's inspection of the remaining portion confirmed that the service line from the water main to the external shut-off valve was lead. (Id.) Region 5 collected water samples from other Flint residents' homes, which also showed noncompliant lead levels. (Id. at 4, Pg ID 1144.)

         Meanwhile, on April 23, 2015, Mr. Del Toral sent an email to MDEQ asking: “What's Flint doing now (post Detroit) for corrosion control treatment?” (Pls.' Resp. Ex. 2 at 4, ECF No. 53-3 at Pg ID 1928.) MDEQ responded the following day, indicating that Flint is not practicing CCT and that the results of testing for two six-month periods indicated that no treatment was needed. (Id. at 3, Pg ID 1927.) Mr. Del Toral emailed MDEQ on April 25, 2015, expressing his concern regarding the lack of CCT following the water source switch considering the known corrosivity of the Flint River and the City's extensive lead service lines. (Id. at 1, Pg ID 1925.) Mr. Del Toral further reemphasized that the City's pre-flushing ahead of compliance sampling may be distorting test results. (Id.) Mr. Del Toral expressed that “[g]iven the very high lead levels found at one home and the pre-flushing happening at Flint . . . the whole town may have much higher lead levels than the compliance results indicated ….” (Id.)

         In May and June 2015, EPA Region 5 staff continued to express concern to MDEQ and the City about increasing concentrations of lead in Flint's drinking water and the City's lack of corrosion control treatment and offered the EPA's expertise to move forward and rectify the water quality problems. (Def.'s Mot. Ex. 32 at 3, ECF No. 39-15 at Pg ID 1294; Ex. 3 at 4, ECF No. 38-2 at Pg ID 1144; Pls.' Resp. Ex. 6 at 1, ECF No. 53-7 at Pg ID 1945.) During this period, Mr. Del Toral prepared the EPA's interim report on high lead levels in Flint's water system, which was circulated to his colleagues. In the report, Mr. Del Toral indicated that Flint was not including tests from homes showing high lead levels in its compliance sampling pool. (Pls.' Resp. Ex. 3 at 5, ECF No. 53-4 at Pg ID 1935.) He also expressed concern that this omission, as ...


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