Case: 5:18-cv-10699 As of: 11/03/2019 02:15 PM EST 1 of 7
CLOSED,APPEAL,reassigned
U.S. District Court Eastern District of Michigan (Ann Arbor) CIVIL DOCKET FOR CASE #: 5:18−cv−10699−JEL−MKM

Brown et al v. Snyder et al Assigned to: District Judge Judith E. Levy Referred to: Magistrate Judge Mona K. Majzoub Case in other court: Michigan Court of Claims, 17−00291−MZ Cause: 28:1441 Petition for Removal− Civil Rights Act
Plaintiff

Date Filed: 02/28/2018 Date Terminated: 04/17/2018 Jury Demand: None Nature of Suit: 893 Environmental Matters Jurisdiction: Federal Question

Brenda Brown

represented by Alyson L. Oliver 1647 W. Big Beaver Road Troy, MI 48084 248 327−6556 Fax: 248−436−3385 Email: notifications@oliverlg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Keri Webber

represented by Alyson L. Oliver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Michael Webber

represented by Alyson L. Oliver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff stephanie webber

Plaintiff VW

represented by VW PRO SE

V. Defendant Rick Snyder TERMINATED: 03/29/2018
Defendant Michigan, State of TERMINATED: 03/29/2018 Defendant

represented by Nathan A. Gambill Michigan Department of Attorney General ENRA Division P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−335−7636 Email: GambillN@michigan.gov ATTORNEY TO BE NOTICED
represented by Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Case: 5:18-cv-10699 As of: 11/03/2019 02:15 PM EST 2 of 7

Michigan Department of Environmental Quality TERMINATED: 03/29/2018

represented by Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Defendant
Michigan Department of Health and Human Services TERMINATED: 03/29/2018

represented by Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Defendant Daniel Wyant

represented by Christopher B. Clare Clark Hill PlC 601 Pennsylvania Ave. NW, N. Building Suite 1000 Washington, DC 20004 202−572−8671 Fax: 202−572−8691 Email: cclare@clarkhill.com ATTORNEY TO BE NOTICED

Jordan S. Bolton Clark Hill PLC 151 S. Old Woodward Ave. Suite 200 Birmingham, MI 48009 (248) 988−1839 Fax: (248) 988−2320 Email: jbolton@clarkhill.com ATTORNEY TO BE NOTICED

Michael J. Pattwell Clark Hill, PLC 212 E. Cesar E. Chavez Avenue Lansing, MI 48906 517−318−3043 Fax: 517−318−3082 Email: mpattwell@clarkhill.com ATTORNEY TO BE NOTICED

Defendant
Nick Lyon TERMINATED: 03/29/2018

represented by Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Defendant
Andy Dillon TERMINATED: 03/29/2018

represented by Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Defendant Liane Shekter Smith

represented by Thaddeus E. Morgan Fraser, Trebilcock, 124 W. Allegan Street Suite 1000 Lansing, MI 48933 517−482−5800 Email: tmorgan@fraserlawfirm.com ATTORNEY TO BE NOTICED

Defendant Adam Rosenthal

represented by

Case: 5:18-cv-10699 As of: 11/03/2019 02:15 PM EST 3 of 7

James W. Burdick Burdick Law, P.C. 1760 S. Telegraph Road Suite 300 Bloomfield Hills, MI 48302−0183 248−335−5000 Fax: 248−253−9620 Email: jwb@burdickpc.com ATTORNEY TO BE NOTICED

Lisa L. Dwyer 615 Griswold Street Suite 1120 Detroit, MI 48226 313−967−0200 Email: dwyerl247@aol.com ATTORNEY TO BE NOTICED

Charles E. Barbieri Foster, Swift, 313 S. Washington Square Lansing, MI 48933−2193 517−371−8100 Fax: 517−371−8200 Email: cbarbieri@fosterswift.com TERMINATED: 04/13/2018 ATTORNEY TO BE NOTICED

Defendant Stephen Busch

represented by Krista A. Jackson Smith Haughey Rice & Roegge 100 Monroe Center, NW Grand Rapids, MI 49503 616−458−3633 Fax: 616−774−2461 Email: kjackson@shrr.com ATTORNEY TO BE NOTICED

Philip A. Grashoff , Jr. Smith Haughey Rice & Roegge 100 Monroe Center, NW Grand Rapids, MI 48304 616−774−8000 Fax: 616−774−2461 Email: pgrashoff@shrr.com ATTORNEY TO BE NOTICED

Defendant Patrick Cook

represented by Charles E. Barbieri (See above for address) ATTORNEY TO BE NOTICED

Defendant Michael Prysby

represented by Charles E. Barbieri (See above for address) ATTORNEY TO BE NOTICED

Defendant Bradley Wurfel

represented by Christopher B. Clare (See above for address) ATTORNEY TO BE NOTICED

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Jordan S. Bolton (See above for address) ATTORNEY TO BE NOTICED

Michael J. Pattwell (See above for address) ATTORNEY TO BE NOTICED

Defendant Jeff Wright

represented by Gregory M. Meihn Foley & Mansfield, PLLP 130 East Nine Mile Road Ferndale, MI 48220 248−721−4200 Fax: 248−721−4201 Email: gmeihn@foleymansfield.com ATTORNEY TO BE NOTICED

Matthew Wise Foley & Mansfield, PLLP 130 E. 9 Mile Rd. Ferndale, MI 48220 248−721−4200 Fax: 248−721−4201 Email: mwise@foleymansfield.com ATTORNEY TO BE NOTICED

Defendant
Edward Kurtz TERMINATED: 04/03/2018

Defendant
Darnell Earley TERMINATED: 04/03/2018

Defendant
Gerald Ambrose TERMINATED: 04/03/2018

represented by Barry A. Wolf Barry A. Wolf, Attorney at Law, PLLC 503 S. Saginaw Street, Suite 1410 Flint, MI 48502 810−762−1084 Fax: 810−244−1650 Email: bwolf718@msn.com ATTORNEY TO BE NOTICED

Defendant
Eden Wells TERMINATED: 03/29/2018

represented by Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Defendant Nancy Peeler

represented by Michael S. Cafferty Michael S. Cafferty & Assoc. 333 W. Fort Street Suite 1400 Detroit, MI 48226 313−964−3070 Email: mcaffe@aol.com ATTORNEY TO BE NOTICED

Defendant

Case: 5:18-cv-10699 As of: 11/03/2019 02:15 PM EST 5 of 7 Robert Scott

Date Filed 02/28/2018
02/28/2018 02/28/2018 02/28/2018 03/01/2018 03/01/2018 03/05/2018 03/16/2018 03/16/2018 03/21/2018 03/21/2018 03/29/2018

# Docket Text
1 NOTICE OF REMOVAL by Liane Shekter Smith, Stephen Busch, Bradley Wurfel, Adam Rosenthal, Patrick Cook, Michael Prysby, Daniel Wyant from Michigan Court of Claims, case number 17−291−MZ. Receipt No: 0645−6621705 − Fee: &#036 400 [Previously dismissed case: No] [Possible companion case(s): US District Court for the Eastern District of Michigan, 5:17−cv−10164, Judge Judith E. Levy] (Attachments: # 1 Index of Exhibits, # 2 Exhibit A−Complaint, # 3 Exhibit B−Court of Claims Pleadings, # 4 Exhibit C−SDWA Resources and FAQs, # 5 Exhibit D−Primacy Agreements, # 6 Exhibit E−USEPA Annual Summaries, # 7 Exhibit F−MDEQ FOIA Request between MDEQ and USEPA, # 8 Exhibit G−USEPA FOIA between USEPA and MDEQ, # 9 Exhibit H−MDEQ Funding Documents, # 10 Exhibit I−USEPA 11−3−15 Memorandum, # 11 Exhibit J−USEPA Emergency Administrative Order, # 12 Exhibit K−Flint Techanical Advisory Task Force Emails, # 13 Exhibit L−USEPA Amended Emergency Administrative Order, # 14 Exhibit M−Weekly Reports and MDEQ−USEPA Correspondence, # 15 Exhibit N−USEPA 6−3−16 letter to MDEQ) (Barbieri, Charles) (Entered: 02/28/2018)
NOTICE of Error directed to: Charles E. Barbieri re 1 Notice of Removal. Parties listed on the initiating document were omitted. The filing attorney must use the docket event Addition of Parties to correct the error. [No Image Associated with this docket entry] (DWor) (Entered: 02/28/2018)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (DWor) (Entered: 02/28/2018)
Addition of Parties to CM/ECF: Defendants Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant, Plaintiff VW. Reason: The party was not added to CM/ECF (Barbieri, Charles) (Entered: 02/28/2018)
2 NOTICE of Appearance by Philip A. Grashoff, Jr on behalf of Stephen Busch. (Grashoff, Philip) (Entered: 03/01/2018)
3 NOTICE of Appearance by Krista A. Jackson on behalf of Stephen Busch. (Jackson, Krista) (Entered: 03/01/2018)
4 ATTORNEY APPEARANCE: Michael S. Cafferty appearing on behalf of Nancy Peeler (Cafferty, Michael) (Entered: 03/05/2018)
5 ORDER REASSIGNING CASE from District Judge John Corbett O'Meara and Magistrate Judge Elizabeth A. Stafford to District Judge Judith E. Levy and Magistrate Judge Mona K. Majzoub. (SSch) (Entered: 03/16/2018)
6 NOTICE TO APPEAR: In−Person Status Conference set for 4/16/2018 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 03/16/2018)
7 STIPULATION to Remand Claims Against State Defendants by Andy Dillon, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Rick Snyder, Eden Wells (Gambill, Nathan) (Entered: 03/21/2018)
8 NOTICE of Appearance by Nathan A. Gambill on behalf of Andy Dillon, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Rick Snyder, Eden Wells. (Gambill, Nathan) (Entered: 03/21/2018)
9 ORDER PARTIALLY REMANDING CASE to Michigan Court of Claims and ORDER to Show Cause why the Court should not remand this case to the Michigan Court of Claims for lack of a substantial federal question..( Show Cause Response due by 4/13/2018) Signed by District Judge Judith E. Levy. (NAhm) (Entered: 03/30/2018)

Case: 5:18-cv-10699 As of: 11/03/2019 02:15 PM EST 6 of 7

03/30/2018 04/03/2018 04/03/2018 04/03/2018 04/03/2018
04/04/2018 04/04/2018 04/06/2018 04/06/2018 04/09/2018 04/09/2018 04/09/2018 04/10/2018 04/10/2018 04/10/2018 04/11/2018
04/11/2018 04/11/2018 04/12/2018 04/12/2018 04/13/2018 04/13/2018

10 NOTICE remanding case to MICHIGAN COURT OF CLAIMS. (NAhm) (Entered: 03/30/2018)
11 ATTORNEY APPEARANCE: Barry A. Wolf appearing on behalf of Gerald Ambrose (Wolf, Barry) (Entered: 04/03/2018)
12 STIPULATION to Remand All Claims Against Emergency Manager Defendants by Gerald Ambrose (Wolf, Barry) (Entered: 04/03/2018)
13 NOTICE of Appearance by James W. Burdick on behalf of Adam Rosenthal. (Burdick, James) (Entered: 04/03/2018)
14 ORDER GRANTING STIPULATION TO REMAND ALL CLAIMS AGAINST EMERGENCY MANAGER DEFENDANTS TO THE MICHIGAN COURT OF CLAIMS. Signed by District Judge Judith E. Levy. (NAhm) (Entered: 04/04/2018)
15 NOTICE remanding case to MICHIGAN COURT OF CLAIMS. (NAhm) (Entered: 04/04/2018)
16 [STRICKEN] ATTORNEY SUBSTITUTION for Adam Rosenthal: Lisa L. Dwyer added. (Dwyer, Lisa) Modified on 4/6/2018 (SBur). (Entered: 04/04/2018)
17 NOTICE of Appearance by Lisa L. Dwyer on behalf of Adam Rosenthal. (Dwyer, Lisa) (Entered: 04/06/2018)
TEXT−ONLY ORDER Striking 15 Attorney Substitution as Improvidently Filed. Entered by District Judge Judith E. Levy. (SBur) (Entered: 04/06/2018)
18 NOTICE of Appearance by Christopher B. Clare on behalf of Bradley Wurfel, Daniel Wyant. (Clare, Christopher) (Entered: 04/09/2018)
19 NOTICE of Appearance by Michael J. Pattwell on behalf of Bradley Wurfel, Daniel Wyant. (Pattwell, Michael) (Entered: 04/09/2018)
20 ACKNOWLEDGMENT from Michigan Court of Claims of receipt of 10 Notice of partial remand. (DPer) (Entered: 04/10/2018)
21 NOTICE of Appearance by Jordan S. Bolton on behalf of Bradley Wurfel, Daniel Wyant. (Bolton, Jordan) (Entered: 04/10/2018)
22 ATTORNEY APPEARANCE: Matthew Wise appearing on behalf of Jeff Wright ONLY (Wise, Matthew) (Entered: 04/10/2018)
23 ATTORNEY APPEARANCE: Gregory M. Meihn appearing on behalf of Jeff Wright ONLY (Meihn, Gregory) (Entered: 04/10/2018)
24 DECLARATION by Alyson Oliver filed by All Plaintiffs (Oliver, Alyson) Modified on 4/11/2018 (SKra).[WRONG CASE NUMBER ON DOCUMENT] (Entered: 04/11/2018)
25 CERTIFICATE of Service/Summons Returned Executed. Edward Kurtz served on 3/14/2018, answer due 4/4/2018. (Oliver, Alyson) (Entered: 04/11/2018)
26 CERTIFICATE of Service/Summons Returned Executed. Gerald Ambrose served on 3/15/2018, answer due 4/5/2018. (Oliver, Alyson) (Entered: 04/11/2018)
27 STIPULATION Allowing Withdrawal of Counsel by Adam Rosenthal (Barbieri, Charles) (Entered: 04/12/2018)
28 ACKNOWLEDGMENT from Michigan Court of Claims of receipt of 15 Notice of partial remand. (DPer) (Entered: 04/12/2018)
TEXT−ONLY ORDER Granting 27 Stipulation. Signed by District Judge Judith E. Levy. (SBur) (Entered: 04/13/2018)
29 MEMORANDUM re 9 Order Partially Remanding Case, Order to Show Cause,, Response to Show Cause Order by Stephen Busch, Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter Smith, Bradley Wurfel, Daniel Wyant (Barbieri, Charles) (Entered: 04/13/2018)

Case: 5:18-cv-10699 As of: 11/03/2019 02:15 PM EST 7 of 7

04/16/2018 04/17/2018 04/17/2018 04/17/2018 04/18/2018 04/23/2018 04/27/2018
04/27/2018 05/10/2018 05/11/2018

Minute Entry for proceedings before District Judge Judith E. Levy: Status Conference held on 4/16/2018. (Court Reporter: Jeseca Eddington) (SBur) (Entered: 04/16/2018)
30 NOTICE TO APPEAR: In−Person Status Conference set for 6/18/2018 at 2:00 PM before District Judge Judith E. Levy − in Courtroom 1. (SBur) (Entered: 04/17/2018)
31 ORDER VACATING ORDER TO SHOW CAUSE AND REMANDING CASE to Michigan Court of Claims. Signed by District Judge Judith E. Levy. (NAhm) (Entered: 04/17/2018)
32 NOTICE remanding case to MICHIGAN COURT OF CLAIMS. (NAhm) (Entered: 04/17/2018)
33 NOTICE of Appearance by Thaddeus E. Morgan on behalf of Liane Shekter Smith. (Morgan, Thaddeus) (Entered: 04/18/2018)
34 ACKNOWLEDGMENT from Michigan Court of Claims of receipt of 32 Notice of remand. (DPer) (Entered: 04/24/2018)
35 [STRICKEN] STIPULATION Allowing Nathan Gambill to Withdraw Appearance by Andy Dillon, Nick Lyon, Michigan Department of Environmental Quality, Michigan Department of Health and Human Services, Michigan, State of, Rick Snyder, Eden Wells (Gambill, Nathan) Modified on 4/27/2018 (SBur). (Entered: 04/27/2018)
TEXT−ONLY ORDER Striking 35 Stipulation as Improvidently Filed. Signed by District Judge Judith E. Levy. (SBur) (Entered: 04/27/2018)
36 NOTICE OF APPEAL by Liane Shekter Smith, Stephen Busch, Bradley Wurfel, Patrick Cook, Michael Prysby, Daniel Wyant. Receipt No: 0645−6726381 − Fee: $ 505 − Fee Status: Fee Paid. (Barbieri, Charles) (Entered: 05/10/2018)
37 Certificate of Service re 36 Notice of Appeal. (LGra) (Entered: 05/11/2018)

 
 Case 5:18-cv-10699-JEL-MKM ECF No. 1 filed 02/28/18 PageID.1 Page 1 of 44

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BRENDA BROWN, et al., Plaintiffs,
v GOVERNOR RICK SNYDER, et al.,
Defendants.

Case No. Judge:
Michigan Court of Claims Case No. 17-291-MZ

JOINT NOTICE OF REMOVAL

Date: February 28, 2018

Case 5:18-cv-10699-JEL-MKM ECF No. 1 filed 02/28/18 PageID.2 Page 2 of 44
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... i INDEX 0 F AUTH0 RITIES .....................................................................................II INTRODUCTION ..................................................................................................... 1 BACKGROUND ....................................................................................................... 1 SDWA AND LCR BACKGROUND ....................................................................... 3 REMOVAL PURSUANT TO 28 U.S.C. § 1442.................................................... 14 I. MDEQ DEFENDANTS ARE PERSONS THAT WERE ACTING
UNDER THE USEPA.................................................................................. 15 II. MDEQ DEFENDANTS ARE BEING SUED "FOR OR RELATING
TO ACTS" UNDERTAKEN ON BEHALF OF USEPA AND PURSUANT TO USEPA GUIDANCE AND DIRECTION....................... 21 III. REMOVING DEFENDANTS HAVE RAISED A COLORABLE FEDERAL DEFENSE.................................................................................. 32 REMOVAL PURSUANT TO 28 U.S.C. § 1441 .................................................... 34 CONCLUSION AND RELIEF REQUESTED ...................................................... 38

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INDEX OF AUTHORITIES Cases Am. Sys. Consulting, Inc. v. Devier, 514 F.Supp. 2d 1001 (S.D. Ohio 2007) ........ 34 Anderson v. Hackett, 646 F. Supp. 2d 1041 (SD Ill. 2009) .................................... 30 Arizona v. Manypenny, 451 U.S. 232 (1981) .......................................................... 14 Bennett v. MIS Corp., 607 F.3d 1076 (6th Cir. 2010) ................................. 15, 21, 32 Boler v. Earley, 865 F.3d 391 (20 17)...................................................................... 33 Butz v. Economou, 438 U.S. 478 (1978) ................................................................. 33 Colorado v. Symes, 286 U.S. 510 (1932) ................................................................ 14 Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192 (4th Cir. 2008) ............. 22 Grable & Sons Metal Products, Inc. v. Darue Engineering and
Manufacturing, 545 U.S. 308 (2005) ............................................................ 35 Harding-Wright v. D.C. Water and Sewer Auth., 350 F. Supp. 2d 102
(D.D.C. 2005)................................................................................................ 37 Isaacson v. Dow Chern. Co., 517 F.3d. 129 (2d Cir. 2008) .................................... 21 Jefferson County v. Acker, 527 U.S. 423 (1999)............................................... 21, 33 Magnin v. Teledyne Continental Motors, 91 F.3d 1427 (lith Cir. 1996) ........ 23, 33 Maryland v. Soper, 270 U.S. 9 (1926) .................................................................... 21 Matoon v. Pittsfield, 980 F.2d I (I st Cir. 1992) ..................................................... 33 Mays v. City ofFlint, 871 F.3d 437 (6thCir. 2017) ................................................ 15 Mesa v. California, 489 U.S. 121 (1989) .......................................................... 15, 31 Mikulski v. Centerior Energy Corp., 501 F.3d 555 (6th Cir. 2007)........................ 34 Phillips v. Roane County, 534 F.3d 531 (6th Cir. 2008)......................................... 33
ii

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Watson v. Phillip Morris Cos., 551 U.S. 142 (2007) .................................. 16, 17, 22

Willingham v. Morgan, 396 U.S. 402 (1969).............................................. 14, 23, 32

Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (5th Cir. 1998) ........ 29

Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017)............................................. 22

Statutes

u.s.c. 1

§ 1 ............................................................................................................. 15

u.s.c. 28

§ 1441 ....................................................................................... 1, 3, 34, 38

28 U.S.C. § 1442 .............................................................................................. passim

u.s.c. 28

§ 1446 ............................................................................................. 1' 3' 15

40 C.F.R. § 142.1 0 .................................................................................................... 4

40 C.F.R. § 142.11 .................................................................................................... 4

40 C.F.R. § 142.12 .................................................................................................... 5

40 C.F.R. § 142.15 .................................................................................................... 6

40 C.F.R. § 142.16 ..................··························........................................................ 5

40 C.F.R. § 142.17 .................................................................................................... 7

40C.F.R. § 142.171 .................................................................................................. 6

40 C.F.R. § 142.19 ................................................................................................ 6, 8

40 C.F.R. § 142.30 .................................................................................................... 8

40 C.F.R. Part 141 ............................................................................................ passim

42 Fed. Reg. 44835 .................................................................................................... 5

42 U.S.C. § 300f et seq.......................................................................................... 2, 3

u.s.c. 42

§ 300g ................................................................................................... 4, 6

u.s.c. 42

§ 300i ...................................................................................................... 21

111

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Other Authorities 54 Fed. Reg. 27527 (June 1989) ............................................................................. 10 56 Fed. Reg. 26460 (June 7, 1991) ........................................................................... 8 65 Fed. Reg. 1950 (Jan. 12, 2000) ............................................................................ 8 72 Fed. Red. 57789 (Oct. 10, 2007) .......................................................................... 9 72 Fed. Reg. 57782 (Oct. 10, 2007) ...................................................................... 8, 9 H.R. Report No. 93-1185 .......................................................................................... 3 Removal Clarification Act of2011, Pub. L. No. 112-51, 125 Stat. 545 ................. 14
lV

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INTRODUCTION Defendants Daniel Wyant, Bradley Wurfel, Liane Shekter Smith, Adam

Rosenthal, Stephen Busch, Patrick Cook, and Michael Prysby ("MDEQ

Defendants"), by and through their respective counsel, hereby remove this action

from the Michigan Court of Claims to the United States District Court for the

Eastern District of Michigan pursuant to 28 U.S.C. §§ 1441, 1442 and 1446. In

support of this Notice of Removal, the MDEQ Defendants state as follows:

BACKGROUND

1.

The original complaint was filed on November 2, 2017, tn the

Michigan Court of Claims. (Exhibit A).

2.

MDEQ Defendants accepted service on January 31,2018.

3.

MDEQ Defendants are present or former employees of the Michigan

Department of Environmental Quality ("MDEQ") and are being sued for alleged

actions and omissions that the United States Environmental Protection Agency

("USEPA") would otherwise have had to perform. Their alleged actions and

omissions were further taken pursuant to the direction, guidance, oversight, and

control ofUSEPA.

4.

Defendant Cook was a Water Treatment Specialist assigned to the

MDEQ's Lansing Community Drinking Water Unit. Defendant Prysby was the

District 11 Engineer for the MDEQ's Office of Drinking Water and Municipal
1

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Assistance. Defendant Rosenthal was a water quality analyst for the MDEQ.

Defendant Shekter-Smith was Chief of MDEQ's Office of Drinking Water and

Municipal Assistance. Defendant Busch was the MDEQ's Office of Drinking

Water and Municipal Assistance Lansing District Supervisor. Defendant Wyant

was the MDEQ's Director. Defendant Wurfel was MDEQ's Director of

Communications.

5. The Complaint alleges an unconstitutional taking of property in

violation of the Michigan Constitution against MDEQ Defendants and all other

Defendants based on Defendants "deliberately substituting safe drinking water

with a known toxic alternative and their continued decision not to use anti-

corrosive agents to prevent the foreseeable deterioration and/or destruction of the

Plaintiffs' water service lines." (Exhibit A, ~227).

6.

Plaintiffs also allege that, in addition to lead, they were exposed to

legionella (Ex. A,~~ 11, 78, 79, 111, 113, 116, 119, 123, 130, 131, 139, 197, 201,

203), high levels of trihalomethanes {TTHM) (Ex. A,~~ 76, 77, 78, 87, 108, 109,

113), and other contaminants due to the alleged actions of all Defendants. (Ex. A,

~~ 74' 81 ' 113). 7. Corrosion control requirements, testing requirements, and the safety

of water in terms of lead, bacteria, and other contaminant levels are governed by

the federal Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300f et seq.,
2

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USEPA's Surface Water Treatment Rule ("SWTR"), 40 C.P.R. Part 141 Subpart

H, and the Lead and Copper Rule ("LCR"), 40 C.F.R. Part 141 Subpart I.

8.

As more fully described below, Plaintiffs' claims are removable to

this Court under the federal officer removal statute (28 U.S.C. § 1442) and,

alternatively, under the substantial federal question doctrine (28 U.S.C. § 1441).

9.

In accordance with 28 U.S.C. § 1446(d), a notice of filing this Joint

Notice of Removal and a copy of this Notice of Removal are being filed with the

Michigan Court of Claims. A copy of both notices will be served upon Plaintiffs.

10. Copies of all process, pleadings, and orders received by Removing

Defendants are attached. (Exhibit B).

11. By removing this action, MDEQ Defendants do not watve any

defenses, objections, or motions available under state or federal law.

SDWA AND LCR BACKGROUND 12. The SDWA was passed by Congress in 1974 to establish a

comprehensive federal program governing drinking water in the United States and

directed USEPA to promulgate national primary drinking water standards and to

regulate public water systems. See 42 U.S.C. § 300f, et seq.

13. The SDWA authorized USEPA to establish a ')oint Federal-State

system for assuring compliance" with the promulgated drinking water standards.

H.R. Report No. 93-1185, at 1.
3

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14. Under the SOWA, USEPA works jointly with states "on a continuous, ongoing basis" to administer and enforce drinking water regulations. 1
15. USEPA promulgated numerous regulations concerning not only lead and copper, but also total coliform, disinfectants and disinfection byproducts, arsenic, synthetic organic and inorganic chemicals, volatile organic compounds, inorganics, fluoride, and radionuclides. See, e.g. 40 C.F.R. §§ 141.1-141.861.
16. The SDWA authorizes USEPA to delegate primary enforcement responsibility for public drinking water systems to states where USEPA determines, inter alia, that the state: (1) has adopted drinking water regulations that are no less stringent than the national primary drinking water regulations promulgated by USEPA; (2) has adopted and is implementing adequate procedures for the enforcement of such State regulations, including conducting such monitoring and making such inspection as required by USEPA; and (3) will keep such records and make such reports with respect to its activities as required by USEPA. See 42 U.S.C. § 300g-2; see also 40 C.F.R. §§ 142.10 and 142.11. Section 1445 of the SDWA also authorizes the USEPA to enter and inspect water supplies to determine whether the water supply is in compliance with the SOWA.
1 See generally USEPA's Safe Drinking Water Act (SDWA) Resources and FAQs, Exhibit C.
4

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17. USEPA first granted the Michigan Department of Public Health (later assumed by MDEQ) primary enforcement responsibility over the regulation of Michigan's public drinking water systems in 1977. 42 Fed. Reg. 44835 (Sept. 7, 1977). The State of Michigan entered into an Agreement with USEPA in 1978 regarding primary enforcement obligations under the SDWA.2
18. Each time USEPA amends the SDWA, SWTR, or LCR, Michigan must make corresponding changes to its Safe Drinking Water Program. Each revision to the state drinking water program in response to new or revised federal regulations, including those regulations which relate to lead and copper, requires MDEQ to submit a request to USEPA Administrator for approval of the program revision. See 40 C.F.R. §§ 142.12(a)(1) and 142.16(d). And, before approving the revisions, USEPA must publish notice and provide an opportunity for a public hearing. See 40 C.F.R. § 142.13?
19. USEPA is responsible for implementing the SDWA, SWTR, and LCR in Michigan absent the MDEQ's primacy obligations under the SDWA. See 40
2 Exhibit D, Primacy Agreements. 3 Exhibit D, Primacy Agreements.
5

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C.P.R. § 142.17l(a)(2). In fact, USEPA is responsible for enforcing and administering the SDWA, SWTR, and LCR in Wyoming and Washington D.C.4
20. The SDWA, however, reserves tremendous oversight authority to the USEPA, including mandatory USEPA intervention in the form of notifications, advice, technical assistance, conference calls, and, failing timely and sufficient state action, enforceable orders and inspections to bring water systems into compliance with federal standards. See 42 U.S.C. § 300g-3; see also 40 C.P.R. §§ 141.82(i), 141.83(b)(7), 142.19, 142.30, and 142.34.
21. By way of example, each state with pnmary enforcement responsibility is required to submit to USEPA detailed quarterly and annual reports regarding the regulation of public drinking water systems including detailed information regarding each system's compliance with the treatment techniques for lead and copper. See 40 C.P.R. §§ 142.15 and 142.19. All of these reports are
4 See https://safewater.zendesk.com/hc/en-us/articles/211400468-Section1413-of-the-Safe-Drinking-Water-Act-allows-EPA-to-award-primaryenforcement-responsibility-i-e-primacy-for-the-Public-Water-System-SupervisionPWSS-program-to-states-and-tribes-Which-states-and-tribes-have-primacy-forthe-PWSS-program-
6

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publicly available, and USEPA is required to, at least annually, review each state's submittals for compliance with USEPA requirements. 40 C.F.R. § 142.17(a)(l).5
22. Beyond these reporting requirements, USEPA guides, directs, oversees, and consults with MDEQ regarding drinking water issues that arise. 6
23. Michigan receives a substantial amount of funding from USEPA for administering and enforcing the SDWA and LCR on USEPA's behalf. 7 In fact, the salaries of Mr. Cook and Mr. Rosenthal have been paid in part by USEPA funding. 8
24. If USEPA determines that a state no longer meets its requirements, the USEPA is required to initiate proceedings to withdraw primacy approval. See 40 C.F.R. § 142.17(a)(2). If USEPA believes a state has abused its discretion in making corrosion control or source water treatment determinations in a substantial number of cases, or in cases affecting a substantial population, USEPA may issue
5 Exhibit E, USEPA Annual Summaries and MDEQ PWSS Program Evaluation.
6 See emails between USEPA and MDEQ (Exhibit F and Exhibit G). These documents were previously released by USEPA and MDEQ pursuant to FOIA requests and are publicly available.
7 See Exhibit I, MDEQ Funding Documents. 8 Exhibit I, p. 7.
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an order establishing federal treatment requirements for a public water system. See 40 C.F.R. § 142.19(a).
25. By way of even further example, whenever USEPA finds that a public water system is not in compliance with any primary drinking water regulation, USEPA "shall provide advice and technical assistance to such State and public water system as may be appropriate to bring the system into compliance by the earliest feasible time." 40 C.F.R. § 142.30.
26. Specifically regarding lead and copper, USEPA, in 1991, promulgated national primary drinking water regulations (''NPDWRs") for controlling lead and copper in public drinking water. 56 Fed. Reg. 26460 (June 7, 1991). These regulations are known as the "Lead and Copper Rule" or "LCR" and are found at 40 C.F.R. § 141.80, et seq. USEPA has since amended the LCR several times, most notably in 2000 and 2007. See, e.g., 65 Fed. Reg. 1950 (Jan. 12, 2000); 72 Fed. Reg. 57782 (Oct. 10, 2007).
27. USEPA's LCR applies to public water systems such as the City of Flint. See 40 C.P.R. § 141.80(a). Generally speaking, it requires those water systems to monitor the levels of lead and copper at consumers' taps and, under a number of different circumstances, requires those systems to employ various treatment techniques such as corrosion control treatment, source water treatment,
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lead service line replacement, and public education. 40 C.F.R. § 141.80(b)- (h).9 MDEQ and MDEQ Defendants are responsible for enforcing these regulations in Michigan, a task USEPA personnel would otherwise be required to perform.
28. Recognizing the complexity and ambiguity of the LCR, USEPA's commentary to its 2007 amendments to the LCR states that USEPA will provide guidance to help systems identify source water changes that could impact optimal corrosion control. 72 Fed. Reg. 57782, 57789 (Oct. 10, 2007). USEPA has responded to this mandate by issuing at least eleven major guidance documents, directing all aspects of a state's implementation of the LCR:
• Lead and Copper Rule Guidance Manual: Volume I: Monitoring (Sept. 1991);
• Lead and Copper Rule Guidance Manual: Volume II: Corrosion Control Treatment (EPA 811-B-92-002) (Sept. 1992);
• Guidance Manual for Selecting Lead and Copper Control Strategies (Jan. 1997);
9 Numerous scholars and practitioners have characterized the LCR as complex and recognized that many of its provisions are confusing and ambiguous. Most recently, USEPA and its Office of General Counsel determined, after several months of review, that "there are differing possible interpretations of the LCR with respect to how the rule's optimal corrosion control treatment procedures" applied to Flint's water system. (Exhibit I, Grevatt Memorandum).
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• How to Determine Compliance with Optimal Water Quality Parameters as Revised by the Lead and Copper Minor Revisions (EPA 815-R-99019) (Feb. 2001);
• Lead and Copper Monitoring and Reporting Guidance for Public Water Systems, EPA-816-R-02-009 (Feb. 2002);
• Lead in Drinking Water Regulation: Public Education Guidance for Community Water Systems, EPA 816-R-02-010 (June 2002);
• Revised Guidance Manual for Selecting Lead and Copper Control Strategies (March 2003);
• Lead and Copper Rule: 2007 Short-Term Regulatory Revisions and Clarifications; State Implementation Guidance, EPA 816-R-08-009 (June 2008);
• Implementing the Lead Public Education Provision of the Lead and Copper Rule: A Guide for Community Water Systems (June 2008);
• Lead and Copper Rule: Monitoring and Reporting Guidance for Public Water Systems, EPA 816-R-10-004 (March 2010); and
• Optimal Corrosion Control Treatment Evaluation Technical Recommendations for Primacy Agencies and Public Water Systems (March 2016).
29. Similar to the LCR, USEPA also promulgated NPDWRs in 1989 for
controlling microorganisms, disinfectants, and inorganic and organic materials in
drinking water. 54 Fed. Reg. 27527 (June 1989). These regulations are collectively
known as the SWTR and are found at 40 C.F.R. § 141.70 et seq. USEPA amended
the SWTR several times and has enacted supplemental rules, such as the Interim
Enhanced Surface Water Treatment Rule (1998), the Filter Backwash Recycling
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Rule (June 2001), and the Long Term 2 Enhanced Surface Water Treatment Rule (January 2006).
30. The SWTR applies to public water systems such as the City of Flint. 40 C.F.R. § 141.70. It requires public water systems to employ particular treatment techniques, source water treatment, source water monitoring of contaminants, and public education related to microorganisms and bacteria present in drinking water, including fecal coliform, total coliform, legionella, trihalomethanes, and disinfectant byproducts. It also requires MDEQ to enforce these regulations through issuing violations to public water systems like the City of Flint, and requiring public notification of violations. See 40 C.F.R. 141.23-24 (public notification rule); 40 C.P.R. 141.21(g)(1) (total coliform); 40 C.P.R. 141.63(b) (fecal positive repeat sample); 40 C.P.R. 141.21(g)(2) (coliform monitoring); 40 C.F.R. 141.30(d) {TTHM); 40 C.F.R. 141.133(b)(1) (MCL for TTHM); 40 C.P.R. 141.33 (Maximum Residual Disinfectant Level for chlorine).
31. Legionella is regulated under the SDWA pursuant to the SWTR. 40 C.P.R. § 141.70(a). While legionella is not regulated pursuant to a Maximum Contaminant Level, as is the case for lead, it has a Maximum Contaminant Level Goal of zero. USEPA's SWTR requires water systems using a surface water source, such as the City of Flint's use of the Flint River, to employ certain treatment techniques to eliminate cryptosporidium and giardia bacteria, and these
11

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same treatment techniques remove legionella. 40 C.F.R. § 141.70. The rules also require public water systems to maintain a detectable disinfection residual throughout the entire distribution system to ensure sufficient treatment for the removal of these pathogens. 40 C.F.R. § 141.72. MDEQ and MDEQ Defendants are responsible for enforcing these regulations in Michigan, a duty USEPA personnel would otherwise be required to perform.
32. Integral to the SWTRs is the Disinfectants and Disinfection Byproducts Rule (DBPR), established in 1998. 40 C.P.R. §141.131; 40 C.F.R. §§ 141.64-65. The DBPR regulates the amount of disinfectants in drinking water that are used to inactivate pathogens such as legionella10 and applies to community water systems that add a disinfectant to the drinking water during any part of the treatment process. 40 C.F.R. § 141.131; 40 C.P.R. §§ 141.64-65. The DBPR provides for maximum contaminant levels for total trihalomethanes {TTHM), in addition to other disinfectants. 40 C.F.R. §141.64. The maximum contaminant level for TTHM is calculated based on the Location Running Annual Average. 40 C.P.R. § 141.64. MDEQ and MDEQ Defendants are responsible for enforcing

10 For a full explanation of the DBPRs, see USEPA's guidance on The Stage 1

Disinfectants

and

Disinfection

Byproducts

Rule,

https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=200025FL.txt.

12

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these regulations in Michigan, a task USEPA personnel would otherwise be
required to perform.
33. USEPA has issued at least ten major guidance documents related to
the SWTR, directing all aspects of a state's implementation of the SWTR:
• Interim Enhanced Surface Water Treatment Rule Implementation Guidance, EPA 816-R-01-011 (June 2001)
• Long Term 1 Enhanced Surface Water Treatment Rule Implementation Guidance, EPA 816-R-04-008 (August 2004)
• Long Term 2 Enhanced Surface Water Treatment Rule Implementation Guidance, EPA 816-R-07-006 (August 2007)
• Guidance Manual for Conducting Sanitary Surveys of Public Water Systems, EPA 815-R-99-016 (April1999)
• Implementation Guidance for the Filter Backwash Recycling Rule, EPA 816-R-04-006 (June 2004)
• Alternative Disinfectants and Oxidants Guidance Manual, EPA 815-R99-014 (April1999)
• Disinfection Profiling and Benchmarking Guidance Manual, EPA 815-R99-013 (August 1999)
• Enhanced Coagulation and Enhanced Precipitative Softening Guidance Manual, EPA 815-R-99-012 (May 1999)
• Guidance Manual for Compliance with the Interim Enhanced Surface Water Treatment Rule: Turbidity Provisions, EPA 815-R-99-010 (April 1999)
• Microbial and Disinfection Byproduct Rules Simultaneous Compliance Guidance Manual, EPA 815-R-99-015 (August 1999).
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34. USEPA also has the right to audit state drinking water programs and issue orders directing specific actions, as necessary. See 40 C.F.R. § 142.19.
REMOVAL PURSUANT TO 28 U.S.C. § 1442 35. The federal officer removal statute permits a defendant to remove a state-court action brought against "any [federal] agency or any [federal] officer (or any person acting under that officer) ... for or relating to any act under color of such office ...." 28 U.S.C. § 1442. 36. Federal officer removal statutes "are to be liberally construed." Colorado v. Symes, 286 U.S. 510, 517 (1932). "The federal officer removal statute is not 'narrow' or 'limited.' At the very least, it is broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law." Arizona v. Manypenny, 451 U.S. 232, 242 (1981) (quoting Willingham v. Morgan, 396 U.S. 402, 407 (1969)); see also Removal Clarification Act of2011, Pub. L. No. 112-51, 125 Stat. 545. 37. A defendant who is not a federal officer or federal agency must satisfy three elements to remove under the federal officer statute: (1) the defendant is a person acting under a federal officer or agency; (2) the defendant performed the actions for which the defendant is being sued under the direction of a federal officer or agency; and (3) the defendant has raised a colorable federal defense. See,
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e.g., Bennett v. MIS Corp., 607 F.3d 1076, 1085 (6th Cir. 2010) (citation omitted);
Mesa v. California, 489 U.S. 121, 138-39 (1989).
38. In this case, MDEQ Defendants satisfy all three elements of the federal officer removal statute. 11
I. MDEQ DEFENDANTS ARE PERSONS THAT WERE ACTING UNDER THE USEPA.
39. MDEQ Defendants are "persons," 1 U.S.C. § 1, whose authority to
regulate Michigan's public drinking water systems is derived from the SDWA,
SWTR, LCR, and other USEPA regulations, and whose enforcement of the
11 MDEQ Defendants previously removed other Flint water cases pursuant to the federal officer removal statute and the substantial federal question doctrine. Some of those cases are currently in various stages of appeal, including Mays v. City ofFlint, 871 F.3d 437 (6th Cir. 2017) (rehearing denied), which in a 2-1 split decision the Sixth Circuit Court of Appeals affirmed the district court's decision that federal officer removal was not available to MDEQ Defendants. These Defendants filed a petition for writ of certiorari to the United States Supreme Court in the Mays case on February 13, 2018, regarding this issue. Patrick Cook v Melissa Mays, No. 17-1144 (U.S. S. Ct.) MDEQ Defendants also are currently awaiting the Sixth Circuit's decision in Nappier, et al. v. Snyder, et al. Case No. 17-1401 (6th Circuit), which is an appeal of the district court's decision related to federal officer removal. In addition, these Defendants have appealed a remand decision in Waid, et al. v. City of Flint, et al., No. 18-1155 (6th Circuit). These Defendants must remove this case in order to preserve their asserted right to removal because removal would otherwise be barred by the strict 30-day timeframe for removing actions provided in 28 U.S.C. § 1446.
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SDWA, SWTR, and LCR with respect to Michigan's public water systems occurs under USEPA's direction, control, and close supervision.
40. The "acting under" requirement is satisfied by establishing that the nonfederal official performed the actions for which he or she is being sued "under color of federal office." 28 U.S.C. § 1442.
41. The "acting under" requirement is satisfied when an individual's assistance to the federal agency goes beyond simple compliance with the law and fulfills basic governmental tasks. Watson v. Phillip Morris Cos., 551 U.S. 142, 153-154 (2007).
42. A formal delegation of legal authority to undertake obligations on a federal agency's behalf also satisfies the "acting under" requirement. !d.
43. Additionally, the "acting under" requirement is satisfied by performing tasks that the federal agency itself would otherwise have to perform. !d. at 154.
44. MDEQ Defendants' actions in enforcing the SDWA, SWTR, and LCR throughout Michigan, including in Flint, is undertaken on USEPA's behalf; in the absence of MDEQ regulating public water systems and enforcing the SDWA, SWTR, and LCR, USEPA would be legally required to perform these tasks itself.
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45. USEPA was in a position superior to MDEQ and MDEQ Defendants, since it retained authority under the SDWA to direct, order, and oversee MDEQ's actions.
46. MDEQ Defendants administered and enforced the SDWA, SWTR, and LCR's detailed monitoring, testing, sampling, and notification requirements in overseeing the Flint water system not only on USEPA's behalf, but also pursuant to USEPA's oversight, direction, and control.
47. MDEQ Defendants were not tasked with merely complying with the SDWA, SWTR, and LCR, like the defendants in Watson, but were instead responsible for enforcing the SDWA, SWTR, and LCR on behalf of USEPA. USEPA delegated the legal authority to MDEQ to issue violations of the SDWA, SWTR, and LCR to public water systems, and require public notifications of violations.
48. MDEQ Defendants also oversaw and enforced the SWTR and DBPR, including treatment, monitoring, and enforcement of the regulations governing pathogens like legionella and disinfectant byproducts like TTHM, with direction and oversight from USEPA. 12
12 Exhibit F, pp. 6, 13-14, 15-16, 19, 36, 38-39, 41, 43, 52-55, 84, 107-111, 113-118, 120-122, 133-135, 147-154; Exhibit G, pp. 3-4, 34-35, 71, 108.
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49. Plaintiffs' Complaint both specifically and implicitly13 alleges that MDEQ Defendants had duties to Plaintiffs based on the federal SDWA, SWTR, and LCR standards, regulations, monitoring, and testing requirements that were purportedly not followed and give rise to Plaintiffs' claims.
50. The federal nature ofMDEQ Defendants' conduct here is bolstered by the fact that MDEQ's drinking water program is funded in large part by federal dollars due to the SDWA enforcement obligations. 14
51. USEPA provided MDEQ Defendants with oversight, guidance, and control related to a variety of issues in Flint, including without limitation the implementation of corrosion control once elevated levels of lead were discovered in Flint's drinking water. 15
52. Each time USEPA delegated legal authority to MDEQ to implement an aspect of the SDWA, SWTR, or LCR, USEPA indicated a "hope [that] the ties between our offices will continue to be strengthened as we implement new public health protection regulations" or that the "continued support of your staff to
13 Exhibit A~~ 3, 11, 53, 61, 62, 66, 68, 69, 70, 74, 76, 77, 78, 79, 81, 84, 85, 86, 87, 88, 98, 102, 103, 108, 109, 111, 113, 116, 119, 123, 125, 126, 127, 128, 130, 131, 133, 138, 139, 141, 145, 156, 159, 178, 196, 197, 201, 203, 207, 215, 227.
14 Exhibit H, MDEQ Funding Documents. 15 See Exhibits F and G.
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implement the public water supply supervision program In this state IS appreciated." 16
53. USEPA controls MOEQ's responsibilities under the SOWA, SWTR, and LCR. For example, the USEPA Public Water System Supervision Program Final Report of August 30, 2010, noted that USEPA granted MDEQ permission to disinvest in certain primacy activities due to budgetary constraints while dictating which duties under the SOWA MOEQ must continue to carry out.17
54. USEPA's extensive direction, control, and oversight of MOEQ is memorialized in part, and without limitation, in the correspondence and communication between USEPA and MDEQ as it assisted the state agency in carrying out the USEPA's obligations under the SOWA, SWTR, and LCR. This direction and control existed prior to the Flint water controversy but intensified in response to drinking water quality concerns after Flint began using the Flint River as a water source. As the correspondence demonstrates, USEPA Region 5 was actively involved in directing MOEQ's decisions and responses in Flint, including monitoring, treatment, and the implementation of corrosion control.18
16 Exhibit E. 17 Exhibit E. 18 Exhibit F and G.
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55. USEPA is also actively involved in providing guidance, direction, and oversight whenever an enforcement action is taken by MDEQ to remedy a SDWA or LCR violation or when concerns short of a violation arise, such as the concerns surrounding Flint's drinking water in 20 14-2015. 19
56. MDEQ Defendants are, therefore, properly characterized as USEPA's agents, acting under USEPA's direction and control to assist with implementing and enforcing the federal SDWA, SWTR, and LCR, including the corresponding guidance documents for these regulations. Furthermore, the Removing Defendants' alleged actions and inactions in this case were not only taken pursuant to USEPA's LCR, guidance documents, training manuals, quarterly and annual reviews, but they were also guided by repeated written and verbal dialogue with a number of USEPA officers who advised and oversaw the Removing Defendants' state-based regulation of the Flint water system.20
57. Beyond this active supervision and direction of MDEQ, USEPA had the authority to order MDEQ to take specific actions pursuant to the SDWA, a
19 Exhibit F and G. 20 Exhibit F and G.
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power which USEPA exercised through its Emergency Administrative Order ("EAO") issued in January 2016?1
II. MDEQ DEFENDANTS ARE BEING SUED "FOR OR RELATING TO ACTS" UNDERTAKEN ON BEHALF OF USEPA AND PURSUANT TO USEPA GUIDANCE AND DIRECTION.
58. The federal officer removal statute requires a defendant to show that he or she is being sued for or related to the acts they performed at the direction of a federal officer or agency. Bennett, 607 F.3d at 1088.
59. Defendants need not present an airtight case on the merits in order to show the required causal connection. Jefferson County v. Acker, 527 U.S. 423, 432 (1999). Rather, the United States Supreme Court has indicated that "[t]he hurdle erected by this requirement is quite low." Isaacson v. Dow Chern. Co., 517 F.3d. 129, 137 (2d Cir. 2008) (citing Maryland v. Soper, 270 U.S. 9 (1926) ("[i]t is enough that [the federal officer's] acts or his presence at the place in performance of his official duty constitute[s] the basis" for the lawsuit).
60. The allegations in MDEQ Defendants' Notice of Removal should be accepted as true and construed in the light most favorable to removal. "Although the principle of limited federal court jurisdiction ordinarily compels [district courts] to resolve any doubts about removal in favor of remand, ... courts have not
21 See 42 U.S.C. § 300i and Exhibit J, USEPA EAO.
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applied that tiebreaker when it comes to the federal officer removal statute in light of its broad reach." Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017) (citing Watson v. Philip Morris, 551 U.S. 142, 151 (2007)). A notice of removal pursuant to Section 1442 need not "meet a higher pleading standard than the one imposed on a plaintiff in drafting an initial complaint" in order to entitle the defendant to removal. Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 199-200 (4th Cir. 2008).
61. The crux of this case is the federally-created statutory right to safe drinking water, the LCR regulations, the SWTR regulations, federal delegation of SDWA enforcement and administration to MDEQ Defendants, and the actions MDEQ Defendants took under these federal regulations while administering and enforcing the SDWA. These are all tasks "for" or "related to" MDEQ Defendants' duties under color of federal office, tasks USEPA would have to perform in the absence of delegating these duties to the MDEQ, and tasks undertaken under USEPA's guidance, direction, and control.
62. Any allegations that the MDEQ Defendants acted in error, inappropriately, or in contravention of USEPA do not bar removal of this action to federal court:
[T]he Supreme Court has held that, in a civil suit such as this, it is sufficient for the defendant to show that his relationship to the plaintiff "derived solely from [his] official duties."... If the question raised by the plaintiff is whether
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the defendant was engaged in "some kind of frolic," or acting in contravention of his official duties, the parties will have their opportunity to present their versions of the facts to a federal court. Magnin v. Teledyne Continental Motors, 91 F.3d 1427-28 (11th Cir. 1996) (quoting Willingham v. Morgan, 395 U.S. 402,409 (1969)). 63. USEPA provided MDEQ direction regarding, inter alia, Boil Water Advisories, how to address increased levels of trihalomethanes, and Flint's initial lead and copper monitoring periods, all of which are implicated by Plaintiffs' Complaint. 22 64. USEPA continued to monitor, oversee, and provide guidance to MDEQ Defendants in their enforcement of the SDWA, SWTR, and LCR in 2014 and 20 15.23 USEPA actively provided ongoing guidance, oversight, and direction to MDEQ in an effort to determine the root cause of the water lead levels and the best way to address these issues throughout 2015.24 65. After Flint decided to switch its primary water source, Flint conducted two six month rounds of lead and copper sampling, as permitted by the LCR, to determine what, if any, corrosion control was appropriate. Flint's first six month
22 Exhibit F, pp. 32-33, 108-110, 133-136. 23 Exhibit G, pp. 133-136. 24 Exhibit G, pp. 24-29, 124-126.
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round of lead and copper monitoring 1n December 2014 resulted in a 90th percentile lead level of 6 parts per billion (pbb), which is below the federal action level for lead of 15 ppb. 40 C.F.R. § 141.81.
66. Subsequently, USEPA expressed concern regarding Flint's water lead levels at consumers' taps after discovering high lead levels in one Flint home in February 2015.
67. Perhaps most pertinent to Plaintiffs' Complaint, the alleged delay in implementing corrosion control after allegedly high lead levels came to light in one Flint home in February 2015 was at the direction and under the supervision of USEPA.
68. On February 27, 2015, Jennifer Crooks, USEPA Region V Michigan Program Manager, directed MDEQ Defendants to consult with USEPA experts regarding Flint's public water system after high lead levels were observed in one Flint home. MDEQ was directed to conduct further review but not directed to alter corrosion control.25
25 Exhibit F, pp. 15-19.
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69. From February 2015 through June 2015, USEPA continued to guide and direct what treatment or actions were required in Flint, and USEPA officials again visited Flint related to its drinking water program.26
70. During a conference call in June 2015, USEPA told MDEQ Defendants that conducting a corrosion control study did not make sense and that simply adding phosphates to address corrosion may be premature.27 USEPA's direction to MDEQ was to utilize USEPA technical assistance and comprehensively look at Flint's water quality before making any treatment recommendation; again, USEPA's direction was to delay implementing corrosion control until the proper method and amount of treatment could be determined.
71. On August 31, 2015, USEPA and MDEQ staff "brainstormed on strategic next steps" as USEPA oversaw actions to address Flint's lead corrosion concerns, including development of public education programs, gathering information for further drinking water treatment, providing USEPA's experts to Flint, and development of an MDEQ-USEPA joint team of experts to help Flint
26 Exhibit F, pp. 128-129. 27 ExhibitF,pp.112-116, 149-154.
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address its drinking water concerns.28 These efforts included methods for identifying and replacing lead service lines in Flint.29
72. Following the August 31, 2015, conference call, USEPA Region V Michigan Program Manager Crooks directed MDEQ to provide public education to Flint residents and not to simply add orthophosphates without first studying the water quality and existing distribution system conditions to determine proper corrosion control.30 USEPA's direction was to use USEPA experts and review Flint's situation holistically, rather than immediately implement corrosion control.
73. In September 2015, MDEQ was instructed to consult and work under USEPA drinking water experts Michael Schock and Darren Lytle, in addition to Crooks.31
74. USEPA personnel were integral members of the Flint Technical Advisory Committee, which recommended in early October 2015 that Flint switch
28 Exhibit F, pp. 155-156. Even in this USEPA summary of discussions with MDEQ regarding corrosion control plans, USEPA official Crooks reported that "[e]veryone at the meeting agreed that Flint is in compliance with the Safe Drinking Water Act action level for lead."
29 Exhibit F, pp. 36-39. 30 Exhibit F, pp. 34-35. 31 Exhibit F, p. 30.
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back to purchasing treated water from the Great Lakes Water Authority.32 All the plans to switch water sources were submitted to USEPA for approval by USEPA experts.33
75. USEPA closely oversaw and directed MDEQ in analyzing Flint's water and then in formulating an optimization plan to address Flint's lead levels and enforce the SDWA on USEPA's behalf.34
76. On October 30, 2015, MDEQ Defendant Prysby directed Flint to take specific steps to address corrosion control upon the water switch pursuant to a letter approved by USEPA that was the product ofUSEPA's review, direction, and guidance for addressing Flint's water quality issues.35 Prior to this October 30, 2015, letter, USEPA's specific direction to MDEQ was to continue studying the situation, consult with USEPA experts, and not implement corrosion control immediately.
32 Exhibit K, Flint Technical Advisory Task Force Emails. 33 Exhibit F, pp. 34-35. 34 Exhibit F, pp. 34-51. 35 Exhibit F, pp. 36-40, 43-49.
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77. As Plaintiffs' claims of continuing damages are tied to this delayed implementation of corrosion control at USEPA's specific direction, MDEQ Defendants satisfy the "causal connection" requirement for federal officer removal.
78. USEPA controlled, guided, and directed the MDEQ's response to water quality issues, the corrosion control plans, addressing legionella concerns, and Flint's switch of water sources in 2015.
79. Three months later, under pressure for faster action to address lead, USEPA exercised its authority under the SDWA to exert the agency's ultimate control over MDEQ's administration and enforcement of the federal statute by issuing its EAO in January 2016?6
80. The EAO was later amended on November 17, 2016.37 Since January 21, 2016, MDEQ has acted under the specific direction of USEPA pursuant to the USEPA EAO, including monthly operation reports, weekly conference calls, and weekly status reports to USEPA summarizing MDEQ's enforcement actions taken pursuant to the EA0.38 MDEQ has even filed a lawsuit against the City of Flint in order to enforce the EAO, SDWA, and LCR in Flint.
36 Exhibit J. 37 Exhibit L, Amended EAO. 38 See Exhibit M for sample weekly reports and MDEQ-USEPA correspondence regarding MDEQ enforcement of the Amended EAO in Flint. See
28

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81. Additionally, the causal connection requirement for federal officer removal can be met when strict adherence to government regulations or specifications compelled the conduct on which the suit is based. Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 399-400 (5th Cir. 1998).
82. The right to safe drinking water is a federal statutory right created by the federal SDWA, with the federal LCR specifically addressing the treatment and requirements related to lead and legionella. In the absence of the SOWA and LCR, there would be no requirements to monitor lead levels-or monitor or treat water to remove any other contaminants-in drinking water.
83. All water systems are required to install and operate optimal corrosion control treatment as that term is defined at 40 C.F.R. § 141.2. Compliance with the optimal corrosion control treatment requirement can be satisfied through an acceptable demonstration via monitoring that the system is optimized, or through actual treatment steps and maintenance of an optimized corrosion control treatment as set forth in 40 C.F.R. § 141.81.
84. Since Flint had not previously been treating water at its Water Treatment Plant prior to the water source switch, there was no corrosion control
also USEPA June 3, 2016 letter regarding USEPA direction provided "for many months" in Flint, attached as Exhibit N.
29

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treatment for Flint to "continue to operate and maintain," so based on the LCR regulations and prior MDEQ practices (as directed and overseen by USEPA since 1991 ), Flint was required to undergo an initial lead monitoring period of two six month rounds of sampling to determine whether and, if required, what corrosion control was necessary for Flint River water. This was an acceptable option under the LCR. 40 C.F.R. § 141.81.
85. USEPA has agreed that the LCR's optimized corrosion control requirements, as applied to Flint, were ambiguous.39
86. Plaintiffs' claims also are in part based on MDEQ Defendants' strict adherence to the SWTR and SDWA regulations governing TTHM, as Plaintiffs fault MDEQ Defendants for not disclosing high levels of TTHM prior to December 2014. However, strict adherence to the SDWA regulations dictated that no SDWA violation occurred until December 2014, when the local running average exceeded the permissible TTHM levels under the SDWA.40 Anderson v. Hackett, 646 F. Supp. 2d 1041, 1052 (SD Ill. 2009) ("Section 1442(a)(1) authorizes removal of an entire case, even though only one of its controversies might involve a federal officer or agency")(citations omitted)).
39 Exhibit I, Gravatt Memorandum. 40 See Exhibit F, pp. 13-14, 52-55, 108-110, and 113-115.
30

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87. As demonstrated above, the SDWA and LCR required MDEQ Defendants to act in the way they did related to a myriad of matters, including TTHM, general monitoring which included detection and treatment of bacteria (which is also effective for legionella), and water lead level analysis. MDEQ Defendants have a right to present their version of the facts to a federal, not a state, court.
88. Plaintiffs may argue that the SDWA and LCR did not require MDEQ to monitor and oversee Flint's public water system in the way that it did. The United State Supreme Court has held that "[t]o assert that a federal statute does not impose certain obligations whose alleged existence forms the basis of a civil suit is to rely on the statute in just the same way as asserting that the statute does impose other obligations that may shield the federal officer against civil suits; both are equally defensive and equally based in federal law." Mesa, 489 U.S. at 130.
89. Plaintiffs' claims are that MDEQ Defendants allegedly failed to properly monitor Flint's compliance with the SDWA, SWTR, and LCR and enforce the SDWA, SWTR, and LCR, resulting in drinking water quality concerns and damages. All of these alleged actions are directly tied to (a) MDEQ Defendants' conduct to enforce these federal regulations that USEPA monitored, supervised, and directed, and (b) MDEQ's adherence to the SDWA SWTR, and
31

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LCR's regulations tn administering and enforcing the federal regulations tn USEPA's stead.
90. Plaintiffs' claims are inextricably intertwined with the construction, interpretation, and effect of the SDWA, SWTR, and the LCR. If these Defendants establish that these federal laws and regulations were not violated, Plaintiffs' claims against these Defendants are defeated.
91. Plaintiffs' claims depend on a question of federal law, primarily whether these Defendants complied with the SDWA, SWTR, and LCR during their oversight of the Flint public water system. There are no alternative theories supporting their claims that do not implicate the SDWA, SWTR, and/or LCR, as the MDEQ Defendants are being sued for carrying out tasks USEPA would otherwise be required to perform.
III. REMOVING DEFENDANTS HAVE RAISED A COLORABLE FEDERAL DEFENSE.
92. The final requirement under the federal officer removal statute is that the defendant raises a colorable federal defense. Bennett, 607 F.3d at 1085. This requirement recognizes that one of the most important reasons for removal is to have the validity of federal defenses tried in a federal court. Willingham v. Morgan, 395 U.S. at 407.
32

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93. A defendant is not required to virtually win the case before removal will be permitted. Jefferson County v. Acker, 527 U.S. at 431. A reasonable federal defense argument, even if ultimately rejected, is sufficient to satisfy the colorable federal defense requirement of28 U.S.C. § 1442. !d.
94. MDEQ Defendants have colorable federal defenses including but not limited to the following: preemption of Plaintiffs' claims by the SDWA (Matoon v. Pittsfield, 980 F.2d 1 (1st Cir. 1992))41 ; absolute immunity (Butz v. Economou, 438 U.S. 478 (1978)); and qualified immunity (Phillips v. Roane County, 534 F.3d 531, 538 (6th Cir. 2008)) (holding that government officials sued in their individual capacity can be shielded from liability by qualified immunity).
95. Moreover, Plaintiffs' claims would necessarily fail if MDEQ Defendants are able to show that they complied with their delegated obligations under the federal SDWA. See, e.g., Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1429 (lith Cir. 1996).
96. For federal officer removal, it is only important that there is a basis for removal of at least one claim by at least one defendant. Am. Sys. Consulting, Inc. v.
41 This defense was denied in the Sixth Circuit's opinion in Boler v. Earley, 865 F.3d 391 (20 17), which is currently the subject of multiple petitions for certiorari to the United States Supreme Court, docketed as case no. 17-901, including a petition by MDEQ Defendants.
33

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Devier, 514 F.Supp. 2d 1001, 1009 (S.D. Ohio 2007). Although some MDEQ Defendants may have a stronger claim that their actions were directed by USEPA officials or were dictated by detailed federal SOWA regulations, MDEQ Defendants submit that at least one of them satisfies the requirements for removing this action to federal court pursuant to 28 U.S.C. § 1442.
97. Venue is proper in this district under 28 U.S.C. § 1442(a), because the Michigan Court of Claims, Court of Appeals District 1, is located in the Eastern District of Michigan, Southern Division.
98. For all the above reasons, removal is proper under 28 U.S.C. § 1442. REMOVAL PURSUANT TO 28 U.S.C. § 1441
99. The substantial federal question doctrine provides that "a state law cause of action may actually arise under federal law, even though Congress has not created a private right of action, if the vindication of the right under state law .depends on the validity, construction, or effect of federal law." Mikulski v. Centerior Energy Corp., 501 F.3d 555, 565 (6th Cir. 2007) (internal citations omitted).
100. Under the substantial federal question doctrine, federal jurisdiction exists when a "state-law claim necessarily raises a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing a congressionally approved balance of federal and state judicial responsibilities."
34

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Grable & Sons Metal Products, Inc. v. Darue Engineering and Manufacturing, 545 U.S. 308, 314 (2005).
101. At the heart of Plaintiffs' Complaint are allegations that the drinking water provided to Flint residents was not safe and did not meet federal water quality standards, specifically standards related to lead. These and other Defendants were allegedly grossly negligent; committed assault and battery; and inflicted emotional distress by failing to require, ensure, implement, and advise the public regarding compliance with federal water quality standards and corrosion control requirements.
102. As set forth above, the SDWA governs drinking water quality and provides detailed regulations related to water quality standards, monitoring, and testing and treatment requirements, including for bacteria such as legionella. The LCR specifically regulates lead in drinking water and provides detailed standards, monitoring, and testing protocols related to lead in drinking water.
103. Plaintiffs' Complaint contains specific and implicit allegations42 that these MDEQ Defendants (along with other Defendants and actors) had duties to
42 Exhibit A,~~ 3, 11, 53, 61, 62, 66, 68, 69, 70, 74, 76, 77, 78, 79, 81, 84, 85, 86, 87, 88, 98, 102, 103, 108, 109, 111, 113, 116, 119, 123, 125, 126, 127, 128, 130, 131, 133, 138, 139, 141, 145, 156, 159, 178, 196, 197, 201, 203, 207, 215, 227.
35

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Plaintiffs based on the federal SDWA, SWTR, and LCR standards, regulations, monitoring, and testing requirements that were purportedly not followed and give rise to Plaintiffs' various causes of action.
104. Plaintiffs' claims are inextricably intertwined with the construction, interpretation, and effect of the SDWA, SWTR, and the LCR. If these and other Defendants establish that these federal laws and regulations were not violated, Plaintiffs' claims against these Removing Defendants are defeated.
105. Plaintiffs' claims depend on a question of federal law, primarily whether these MDEQ Defendants complied with the SDWA, SWTR, and LCR during their oversight of the Flint water system. There are no alternative theories supporting gross negligence that do not implicate the SDWA, SWTR, and/or LCR, as the MDEQ Defendants are being sued for carrying out USEPA's duty, as delegated to MDEQ Defendants, to ensure that public water systems such as Flint comply with the SDWA and LCR.
106. This is not a garden variety state law tort action that merely references a federal law or statute. This litigation stems from a unique situation involving individual governmental defendants implementing federal lead regulations, and
36

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removal of this action will not open the door to removal of a vast number of purely state law claims.
107. Whether these and other Defendants violated the SDWA, SWTR, and LCR is disputed. USEPA admitted that the LCR is ambiguous and subject to different possible interpretations and constructions when applied to this particular situation. The Director of USEPA's Office of Drinking Water wrote a memo to the EPA's Regional Water Division Directors on November 3, 2015, stating: "After reviewing the rule with our Office of General Counsel, it appears that there are differing possible interpretations of the LCR with respect to how the rule's optimal corrosion control treatment procedures apply to this situation, which may have led to some uncertainty with respect to the Flint water system."43
I08. There is a substantial need for uniform interpretation of the SDWA and LCR as it applies to Flint, and the other 155,000 public water systems subject to the SDWA and LCR, that provide water to almost all Americans across the United States.
109. As the Court pointed out in Harding-Wright v. D.C. Water and Sewer Auth., 350 F. Supp. 2d 102, 107 (D.D.C. 2005), "federal jurisdiction over a state law claim is appropriate when necessary to protect against inconsistent
43 Exhibit I, Grevatt Memorandum.
37

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interpretation of a federal statutory regime." There is a substantial federal interest in resolving the disputed interpretations and effect of the SDWA and LCR to ensure accurate, consistent application of the federal statutes and regulations across the nation and across the various lawsuits relating to Flint's drinking water.
110. This Court's exercise of jurisdiction over this case will not disturb a congressionally approved balance of federal and state judicial responsibilities. Congress has placed the regulation of drinking water within the federal realm through promulgation of the SDWA and via USEPA's federal oversight, direction, and authority over the SDWA regulatory scheme.
111. Venue is proper in this district under 28 U.S.C. § 1441, because the Michigan Court of Claims, Court of Appeals District 1, is located in the Eastern District of Michigan, Southern Division.
CONCLUSION AND RELIEF REQUESTED WHEREFORE, MDEQ Defendants Patrick Cook, Michael Prysby, Adam Rosenthal, Liane Shekter-Smith, Stephen Busch, Daniel Wyant, and Bradley Wurfel, respectfully request that this action proceed in this Court as an action properly removed.
38

Case 5:18-cv-10699-JEL-MKM ECF No. 1 filed 02/28/18 PageID.44 Page 44 of 44

Dated: February 28, 20 18

Respectfully submitted,

Foster, Swift, Collins & Smith, P.C.

Fraser, Trebilcock, Davis & Dunlap

Attorneys for Defendants Patrick Cook, Attorneys for Defendant Liane

Adam Rosenthal, and Michael Prysby Shekter Smith

By: /s/ Charles E. Barbieri Charles E. Barbieri (P31793) Allison M. Collins (P78849) 313 S. Washington Square Lansing, MI 48933 (517) 371-81 00 cbarbieri@fosterswift.com

By:/s/ Thaddeus E. Morgan {w/permission) Thaddeus E. Morgan (P47394) 124 West Allegan Street, St 1000 Lansing, MI 48933 (517) 482-5800 tmorgan@fraserlawfirm.com

Clark Hill PLC Attorneys for Bradley Wurfel and Daniel Wyant
By: Is/ Michael Pattwell {w/permission) Jay M. Berger (P57663) Michael J. Pattwell (P72419) 212 E. Grand River Ave. Lansing, Michigan 48906 (517) 318-3043 mpattwell@clarkhill.com

Kotz Sangster Wysocki, P.C. Attorneys for Stephen Busch
By: /s/ Phillip Grasho(f(w/permission) Phillip A. Grashoff, Jr. (P14279) 36700 Woodward Ave., Suite 202 Bloomfield Hills, MI 48304 (248) 646-1050 pgrashoff@kotzsangster.com

CERTIFICATE OF SERVICE

I hereby certify that on February 28, 2018, I directed Wendy Paul to electronically file the foregoing with the Clerk of the Court using the ECF system which will send notification of such filing to all parties of record.

Dated: February 28, 2018
32972:00001 :3532435-1

s/ Charles E. Barbieri Charles E. Barbieri (P31793) Foster, Swift, Collins & Smith, P.C. 313 S. Washington Square . Lansing, MI 48933-2193 (517) 371-8155 cbarbieri@fosterswift.com

39

 
 Case 5:18-cv-10699-JEL-MKM ECF No. 36 filed 05/10/18 PageID.719 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BRENDA BROWN, eta/.
Plaintiffs,
v.

Case No. 18-cv-1 0699 Hon. Judith E. Levy

GOVERNOR RICK SNYDER, eta/., Defendants.

Michigan Court of Claims Case No. 17-291-MZ

JOINT NOTICE OF APPEAL

Notice is hereby given that Defendants Patrick Cook, Michael Prysby,

Stephen Busch, Liane Shekter Smith, Daniel Wyant, and Bradley Wurfel,

Defendants in the above-named case, hereby appeal to the Sixth Circuit Court of

Appeals from the Order Vacating Order to Show Cause and Remanding Case to

the Michigan Court of Claims (Dkt. No. 31, RE 707-709), entered in this action on

the 17th day of April, 2018.

Respectfully submitted,

Dated: May 10, 2018

Foster, Swift, Collins & Smith, P.C. Attorneys for Defendants Patrick Cook and Michael Prysby

Fraser, Trebilcock, Davis & Dunlap Attorneys for Defendant Liane Shekter Smith

By: /s/ Charles E. Barbieri Charles E. Barbieri (P31793) Allison M. Collins (P78849) 313 S. Washington Square Lansing, MI 48933 (51 7) 371-81 00 cbarbieri@fosterswift.com

By: Is/ Thaddeus E. Morgan (w/permission) Thaddeus E. Morgan (P47394) 124 West Allegan Street, St 1000 Lansing, MI 48933 (517) 482-5800 tmorgan@fraserlawfirm.com

Case 5:18-cv-10699-JEL-MKM ECF No. 36 filed 05/10/18 PageID.720 Page 2 of 2

Clark Hill PLC Attorneys for Defendants Bradley Wurfel and Daniel Wyant
By: Is/ Michael Pattwell (w/permission) Jay M. Berger (P57663) Michael J. Pattwell (P72419) 212 E. Grand River Ave. Lansing, MI 48906 (517) 318-3043 mpattwell@clarkhill.com

Kotz Sangster Wysocki, P.C. Attorneys for Defendant Stephen Busch
By: Is/ Philip Grashoft Jr (w/permission) Philip A. Grashoff, Jr. (P14279) 36700 Woodward Ave., Suite 202 Bloomfield Hills, MI 48304 (248) 646-1050 pgrashoff@kotzsangster.com

CERTIFICATE OF SERVICE

I hereby certify that on May 10, 2018, I directed Wendy Paul to electronically file the foregoing with the Clerk of the Court using the ECF system which will send notification of such filing to all parties of record and the Sixth Circuit Court of Appeals.

Dated: May 10,2018

s/ Charles E. Barbieri Charles E. Barbieri (P31 793) Foster, Swift, Collins & Smith, P.C. 313 S. Washington Square Lansing, MI 48933-2193 (51 7) 371-8155 cbarbieri@fosterswift.com

32972:00001:3621395-1

 
 Case 5:18-cv-10699-JEL-MKM ECF No. 9 filed 03/29/18 PageID.646 Page 1 of 5

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

In re Flint Water Cases.

Judith E. Levy

United States District Judge

________________________________/

This Order Relates To:

BROWN, ET AL. V. SNYDER, ET
AL. CASE NO. 18-CV-10699

________________________________/

ORDER TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE
REMANDED FOR LACK OF SUBJECT-MATTER JURISDICTION

This case was removed from the Michigan Court of Claims by

defendants Daniel Wyant, Bradley Wurfel, Liane Shekter-Smith, Adam

Rosenthal, Stephen Busch, Patrick Cook, and Michael Prysby on

February 28, 2018. (Dkt. 1.) The stated grounds for removal were 28

U.S.C. § 1442, federal officer removal jurisdiction, and 28 U.S.C. § 1441,

substantial federal question jurisdiction. The complaint asserts a single

claim under the takings clause of the Michigan state constitution. (Dkt.

1-2.)

Case 5:18-cv-10699-JEL-MKM ECF No. 9 filed 03/29/18 PageID.647 Page 2 of 5
In Mays v. City of Flint, Mich., the Sixth Circuit determined that these same defendants were “not eligible for federal-officer removal,” because they “were not ‘acting under’ the [Environmental Protection Agency].” Mays, 871 F.3d at 449. Mays is binding on this Court. The Court lacks a basis to reject that decision where the factual and legal arguments in support of removal are identical to those in Mays, and the primary reason for removal is a preservation of the right to remove. (Dkt. 1 at 20 n.11.)
As to the removing defendants’ substantial federal question argument, defendants argue that the complaint contains “specific and implicit allegations that [the removing] defendants . . . had duties to Plaintiffs based on the federal [Safe Drinking Water Act], [Surface Water Treatment Rule], and [Lead and Copper Rule] standards, regulations, monitoring, and testing requirements[.]” (Id. at 41.) Removal based on a substantial federal question is appropriate only in “a special and small category of cases.” Gunn v. Minton, 568 U.S. 251, 258 (2013).
The removing defendants describe plaintiffs’ takings clause claim as a “gross negligence” claim that implicates these federal statutes and
2

Case 5:18-cv-10699-JEL-MKM ECF No. 9 filed 03/29/18 PageID.648 Page 3 of 5
regulations. (Dkt. 1 at 41.) They also reference “disputed interpretations” of these statutes and regulations. (Id. at 43.) However, the notice of removal only generally references how plaintiffs’ state constitutional claim might implicate disputes related to the interpretation of these statutes and regulations.
Further, defendants did not address how exercising federal jurisdiction over a state constitutional claim “resting on federal . . . statutory violations” would not herald “a potentially enormous shift of traditionally state cases into federal courts,” particularly with regard to claims where no other private right of action exists under the implicated federal statutes and regulations. Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 319 (2005).
Finally, the Court is to consider whether resolution of the federal question is dispositive of the case. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 571 (6th Cir. 2007). Resolution of a federal question is dispositive where any resolution would be dispositive, not just where a resolution in defendants’ favor would be dispositive, but a resolution in plaintiffs’ favor would require plaintiffs to prove further elements of their state-law claim. Id. Here, the removing defendants state only
3

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that if they “establish that these federal laws and regulations were not

violated, Plaintiffs’ claims against these Removing Defendants are

defeated.”1 (Dkt. 1 at 41.)

The removing defendants are ordered to SHOW CAUSE, in

writing, why the Court should not remand this case to the Michigan

Court of Claims for lack of a substantial federal question. The

removing defendants’ response is due on or before April 13, 2018.

Plaintiffs may file a reply to the removing defendants’ response on or

before May 1, 2018. All claims against the State defendants will be

remanded.

IT IS SO ORDERED.

Dated: March 29, 2018 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

1 On March 21, 2018, removing defendants entered into a stipulation to remand with State defendants (the State of Michigan, Governor Rick Snyder, the Michigan Department of Environmental Quality, the Michigan Department of Health and Human Services, Nick Lyon, Eden Wells, and Andy Dillon) because the State defendants assert Eleventh Amendment immunity to this Court’s jurisdiction and did not consent to removal. (Dkt. 7)
4

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CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on March 29, 2018.
s/Shawna Burns SHAWNA BURNS Case Manager
5

 
 Case 5:18-cv-10699-JEL-MKM ECF No. 14 filed 04/03/18 PageID.658 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Brenda Brown, et. al.,

Plaintiffs, v

Case No: 18-cv-10699 Judge: Judith E. Levy

Governor Rick Snyder, et. al.,

Defendants.

ORDER GRANTING STIPULATION TO REMAND ALL CLAIMS AGAINST EMERGENCY MANAGER DEFENDANTS TO THE MICHIGAN COURT OF CLAIMS This matter having come before the Court upon stipulation between the
Emergency Manager Defendants, Edward Kurtz, Gerald Ambrose and Darnell Earley and Plaintiffs to have this cause of action remanded to the Michigan Court of Claims, and neither Plaintiffs nor Emergency Manager Defendants claim any basis for removal of this case from State Court to Federal Court, and Plaintiffs and Emergency Manager Defendants stipulate in their request that this Honorable Court decline to exercise jurisdiction over these specific parties and remand this case to the Michigan Court of Claims.
Wherefore, pursuant to 28 U.S.C. § 1447 IT IS HEREBY ORDERED AND ADJUDGED that this case as to Plaintiffs and Emergency Manager Defendants shall be remanded to the Michigan Court of Claims.

Case 5:18-cv-10699-JEL-MKM ECF No. 14 filed 04/03/18 PageID.659 Page 2 of 2

IT IS FURTHER ORDERED AND ADJUDGED that this Court shall retain

jurisdiction over Plaintiffs and State Defendants.

Dated: April 3, 2018 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 3, 2018.

s/Shawna C. Burns SHAWNA C. BURNS Case Manager

 
 Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.689 Page 1 of 17

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BRENDA BROWN, et al., Plaintiffs,
v GOVERNOR RICK SNYDER, et al.,
Defendants.

Case No. 18-cv-1 0699 Judge Judith E. Levy
Michigan Court of Claims Case No. 17-291-MZ

MDEQ DEFENDANTS RESPONSE TO SHOW CAUSE ORDER (DKT. 9)

Dated: April 13, 20 18

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.690 Page 2 of 17
TABLE OF CONTENTS INDEX OF AUTHORITIES ..................................................................................... ii INTRODUCTION ..................................................................................................... 1 FACTS ....................................................................................................................... 2 ARGUMENT ............................................................................................................ 3 I. REMOVAL OF THIS CASE UNDER 28 U.S.C. § 1442 IS PROPER
WHEN THE CORRECT LEGAL STANDARDS ARE APPLIED............... 3 II. REMOVAL OF THIS CASE UNDER 28 U.S.C. § 1441 IS PROPER......... 4 CONCLUSION AND RELIEF REQUESTED ...................................................... 11

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.691 Page 3 of 17

INDEX OF AUTHORITIES

Cases

Arizona v. Manypenny, 451 U.S. 232 (1981) ............................................................ 3

Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135 (11th Cir. 20 17) ............................ 4

Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. 2006) ......................... 3

Grable & Sons Metal Products, Inc. v. Darue Engineering and Manufacturing, 545 U.S. 308 (2005) .......................................................... 5, 9

Harding-Wright v. D.C. Water and Sewer Auth., 350 F. Supp. 2d 102 (D.D.C. 2005).................................................................................................. 8

Mays v. City ofFlint, 871 F.3d 437 (20 17) ........................................................... 1, 3

Mikulski v. Centerior Energy Corp., 501 F.3d 555 (6th Cir. 2007) .......................... 4

Papp v. Fore-Kast Sales Co., 842 F.3d 805 (3d Cir. 20 16) ...................................... 3

Pretlow v. Garrison, 420 Fed. Appx. 798 {lOth Cir. 2011) ...................................... 4

Ruppel v. CBS Corp., 701 F.3d 1176 (7th Cir. 2012) ............................................... 4

Sawyer v. Foster Wheeler LLC, 860 F.3d 249 (4th Cir. 20 17) ................................. 3

Tiffany Davenport, eta/. v. Lockwood, Andrews, and Newnam, Inc., eta/., 854 F.3d 905 (6th Cir. 20 17)......................................................................... 10

Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017) ............................................... 3

Statutes

28 U.S.C. § 1441 .............................................................................................. passim

u.s.c. 28

§ 1442 ................................................................................................... 1, 3

Other Authorities

H.R. Report No. 93-1185 .......................................................................................... 7

11

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.692 Page 4 of 17
Rules 40 C.F.R. § 141.81(a}(l) ........................................................................................... 6 40 C.F.R. § 141.86..................................................................................................... 6
iii

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.693 Page 5 of 17
INTRODUCTION MDEQ Defendants 1 recognize that this Court is bound by the Sixth Circuit's decision in Mays v. City ofFlint, 871 F.3d 437 (2017) ("Mays"), even though that decision analyzed the notice of removal pursuant to the federal officer removal statute based on fundamental legal standards that conflict with United States Supreme Court precedent and decisions of other circuit courts. MDEQ Defendants submit that if the proper standards of review were applied in the Mays case and to the present notice of removal, then this Court would find federal officer removal appropriate for the reasons delineated in Judge McKeague's dissenting opinion in Mays. MDEQ Defendants removed this case to preserve their entitlement to removal while their petition for certiorari of the Mays decision remains pending before the United States Supreme Court. Additionally, MDEQ Defendants are awaiting a decision in the related Sixth Circuit appeal of Nappier v. Snyder, Case No. 17-1401, which appealed the Western District of Michigan's remand of MDEQ Defendants' removal pursuant to 28 U.S.C. §§ 1442 and 1441 and was argued before the Sixth Circuit in October 2017. In light of the current status of these cases, this Response primarily addresses the issues raised by the Court in its
1 MDEQ Defendants are Patrick Cook, Michael Prysby, Liane Shekter Smith, Stephen Busch, Bradley Wurfel, Daniel Wyant, and Adam Rosenthal.
I

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.694 Page 6 of 17
Order to Show Cause (Dkt. No.9) regarding the appropriateness of removal under
28 u.s.c. § 1441.
FACTS Plaintiffs' Complaint for Injunctive and Declaratory Relief and Money Damages is for alleged damages resulting from exposure to "contaminated water." One Plaintiff has only alleged that her home was serviced by Flint River water, without alleging that her home experienced high lead levels. (Dkt. 1-2, ~ 13, PgiD 51). The remaining Plaintiffs have alleged that their home "tested positive for lead contamination." (Dkt. 1-2, ~ 14, PgiD 51). The primary allegation against MDEQ Defendants is their purported approval and/or participation "in the decision that deliberately created, increased, and prolonged the public health crisis at issue." (Dkt 1-2, ~~ 18, 21, 22, 23, 24, 25, PgiD 52, 53). Plaintiffs also allege that the first round of lead monitoring pursuant to the federal Lead and Copper Rule ("LCR") "showed results exceeding the Lead and Copper Rule's action levels for lead, 15 parts per billion." (Dkt 1-2, ~ 84 PgiD 68). Additionally, Plaintiffs allege that all Defendants' "continued decision not to use anti-corrosive agents to prevent" alleged harm to Plaintiffs' water service lines rendered the water service lines unsafe. (Dkt 1-2, ~ 227, PgiD 97). Plaintiffs seek an order declaring Defendants' conduct unconstitutional, an injunctive order to remediate the harm caused,
2

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.695 Page 7 of 17
equitable relief in the form of medical monitoring, and attorney fees, in addition to monetary damages. (Dkt 1-2, PgiD 97-98).
ARGUMENT I. REMOVAL OF THIS CASE UNDER 28 U.S.C. § 1442 IS
PROPER WHEN THE CORRECT LEGAL STANDARDS ARE APPLIED. Judge McKeague's dissenting opinion setting forth the reasons why removal by MDEQ Defendants under the federal officer removal statute was proper in Mays is equally applicable to this case. As Judge McKeague aptly pointed out in his Mays dissent, the Mays majority opinion started with the wrong legal premise, that the federal officer removal statute should be strictly construed and all doubts should be resolved against removal when analyzing the notice of removal, which was outcome determinative. Mays, 871 F.3d at 450, 453-454. This basic tenant of review embraced by the Mays majority is in conflict with decisions of the United States Supreme Court and seven other Circuit Courts, all of which have consistently held that the federal officer removal statute is to be liberally construed and requires that notices of removal be interpreted broadly in favor of removal.2
2 Arizona v. Manypenny, 451 U.S. 232 (1981); Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. 2006); Papp v. Fore-Kast Sales Co., 842 F.3d 805, 811-12 (3d Cir. 20 16) ("Unlike the general removal statute, the federal officer removal statute is to be 'broadly construed' in favor of a federal forum."); Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 255 (4th Cir. 2017); Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017); Ruppel v. CBS Corp., 701 F.3d 1176, 1181 (7th
3

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.696 Page 8 of 17
Despite the Sixth Circuit's misinterpretation and analysis of the federal officer statute and the clear conflict created by its decision, MDEQ Defendants recognize that the Mays majority opinion is binding on this Court and will not belabor this dispositive error by the Sixth Circuit Court here. II. REMOVAL OF THIS CASE UNDER 28 U.S.C. § 1441 IS
PROPER. The substantial federal question doctrine provides that "a state law cause of action may actually arise under federal law, even though Congress has not created a private right ofaction, if the vindication of the right under state law depends on the validity, construction, or effect of federal law." Mikulski v. Centerior Energy Corp., 501 F.3d 555, 565 (6th Cir. 2007) (internal citations omitted)(emphasis added). Whether Plaintiffs' requested relief is available under the SOWA is not relevant to MDEQ Defendants' ability to remove this case under 28 U.S.C. § 1441 because the substantial federal question doctrine was created specifically to address situations where no federal right of action exists. Moreover, Plaintiffs' requested injunctive and declaratory relief, to the extent the injunctive relief is truly a request to enjoin behavior rather than collect compensatory damages, would both be available under the SDWA.
Cir. 2012); Pretlow v. Garrison, 420 Fed. Appx. 798, 800 (lOth Cir. 2011); Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1142 (11th Cir. 2017).
4

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.697 Page 9 of 17
Federal jurisdiction exists pursuant to 28 U.S.C. § 1441 when a "state-law claim necessarily raises a federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing a congressionally approved balance of federal and state judicial responsibilities." Grable & Sons Metal Products, Inc. v. Darue Engineering and Manufacturing, 545 U.S. 308, 314 (2005). Federal courts have long recognized that federal question jurisdiction exists over "state-law claims that implicate significant federal issues." !d. at 312. Such exercise of jurisdiction is particularly justified to gain the experience and uniformity In addressing federal issues that a federal forum offers. /d. While this Court is correct that the substantial federal question doctrine has been narrowed over time, its basic premise is to provide federal-question jurisdiction if it "appears from the complaint that the right to relief depends upon the construction or application of federal law." /d. at 313 (quotations omitted). Even under the more narrow, modem version of the doctrine, substantial federal question jurisdiction is appropriate when the claims "really and substantially involve a dispute or controversy respecting the validity, construction, or effect of federal law." /d.
Plaintiffs' claim against these Defendants centers on the proper construction, interpretation, and effect of the SOWA, specifically the LCR, to Flint's public water system switch. The primary alleged involvement of these Defendants was interpretation and enforcement of the LCR in Flint. Whether the LCR required
5

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.698 Page 10 of 17
immediate corrosion control or was properly interpreted by MDEQ Defendants as permitting Flint to conduct two six-month rounds of testing to determine what, if any, corrosion control was appropriate is the dispositive issue in this case against these Defendants and is a substantial federal issue. 40 C.F.R. § 141.81(a)(1). The majority of Plaintiffs' allegations are premised on this LCR interpretation being incorrect: Plaintiffs maintain that corrosion control should have been required immediately, and their damages (at least as relate to these Defendants) arise from the delayed implementation of corrosion control.3 (Dkt 1-2, ~ 97, PgiD 71). MDEQ Defendants submit that the construction and validity of their LCR interpretation as applied to Flint's public water source switch in 2014 is dispositive in this case, a construction that is supported by the USEPA's November 3, 2015 memorandum. (Dkt. 1-10). If MDEQ Defendants' construction and application of the federal LCR, in line with MDEQ's practice across the state of Michigan for 25 years given that Flint did not have corrosion control to "maintain" at the time of the primary
3 A secondary issue is whether the LCR sampling protocols were properly interpreted and enforced by MDEQ Defendants as it relates to Flint. (Dkt 1-2, ~ 84, PgiD 68). This includes the validity and construction of regulations governing the type of sampling bottles to be used, and whether and to what extent flushing should be utilized. 40 C.P.R. § 141.86. The validity, construction, and application of these regulations is also disputed by the parties and dispositive of this issue.
6

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.699 Page 11 of 17
water source switch is upheld, then MDEQ Defendants did not violate Plaintiffs' constitutional right.
Additionally, Plaintiffs' Complaint raises a substantial federal issue because they have alleged a right to recovery when water meets SDWA requirements. This raises an overarching, substantial, federal issue of the validity of the SOWA and LCR as protective of public health. Plaintiffs' allegations include that Flint's drinking water was contaminated and unsafe, even when lead sampling results were below the SOWA's action level. (Dkt. 1-2, ~ 68, PgiD 65). Having some houses test above the federal action level does not result in an SDWA violation. Certain Plaintiffs alleged that their home "tested positive for lead contamination," which does not amount to an SDWA or LCR violation. Rather, the LCR permits up to 10% of homes to test high for lead, yet the public water system will be considered safe. Another Plaintiff only alleged that she was connected to the Flint water system-without any allegations of high lead levels or other specific water quality issues. (Dkt 1-3, ~~ 13, 14, PgiD 51).
The SDWA was enacted to "establish Federal standards for protection from all harmful contaminants, which standards would be applicable to all public water systems." H.R. Report No. 93-1185, at 1. Permitting the 10% of homes that test high for lead to proceed with any cause of action, state or federal, in the absence of a SDWA violation is a substantial federal issue that should be interpreted and
7

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.700 Page 12 of 17
applied uniformly across federal forums. Lead levels in drinking water distribution systems is not exclusively a Flint problem, but a national issue. Failure to address this issue may serve as a "green light" for individuals and homeowners in other communities that experience high lead sampling results to file and maintain lawsuits even when their community's water is found to meet all applicable federal standards, thus challenging the validity of the LCR as protective of public health.
Whether the SOWA and LCR were violated by the City of Flint's public water system is actually disputed in this case. It is also dispositive in this case. Determining whether the federal regulation itself gives rise to Plaintiffs' claims, rather than any alleged conduct on the part of various Defendants, is a substantial federal issue with far-reaching ramifications and the potential for substantial federal liability. "[F]ederal jurisdiction over a state law claim is appropriate when necessary to protect against inconsistent interpretation of a federal statutory regime." Harding-Wright v. D.C. Water and Sewer Auth., 350 F. Supp. 2d 102, 107 (D.D.C. 2005). There is a substantial federal interest in resolving the disputed construction, interpretation, validity, and effect of the SOWA and LCR to ensure accurate, consistent application of the federal statutes and regulations across the nation and across the various lawsuits relating to Flint's drinking water.
The federal government, particularly USEPA, has a substantial interest in how the LCR regulations are constructed and applied, as it will have ramifications
8

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.701 Page 13 of 17
for the over 151 ,000 public water systems subject to the LCR's current monitoring, sampling, and corrosion control requirements.4 The LCR will not be amended or substantially altered in the near future, and public water systems and USEPA will continue to be vulnerable to suits revolving around lead levels in drinking water and whether the LCR and its regulatory scheme adequately protects public health, even in the absence of an SDWA or LCR violation. The interpretation of the LCR, and whether the regulation is protective of public health as written, will also influence efforts to amend and modify the LCR moving forward
The final consideration under the substantial federal question doctrine is whether the federal court can exercise jurisdiction over the purported state law claim "without disturbing a congressionally approved balance of federal and state judicial responsibilities." Grable, 545 U.S. at 314. Removal of this case will not herald "a potentially enormous shift of traditional state cases into federal courts." (Dkt. 9, PgiD 648). Substantial federal question jurisdiction is a case specific analysis, which will not be altered by granting removal of this case.
Removal of this case will not disturb a congressionally approved jurisdictional balance because Congress has placed the regulation of drinking water within the federal realm through promulgation of the SDWA, and via USEPA's
4 https://www.epa.gov/dwreginfo/information-about-public-water-systems
9

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.702 Page 14 of 17
oversight, direction, and authority over the SDWA regulatory scheme. There is a substantial need for uniform interpretation of the SDWA and LCR as it applies to Flint, state agencies with primacy responsibilities, and the thousands of public water systems subject to the SDWA and LCR that provide water to almost all Americans across the United States. This is particularly true given the present case, which alleges constitutional violations in the absence of an SDWA violation and, in the case of one Plaintiff, a constitutional violation based on water quality concerns at a community level, without the individual Plaintiff experiencing high lead levels.
The state federal jurisdictional balance also will not be interrupted, as the Sixth Circuit recognized in a recent Flint water case that these cases involve outof-state defendants5 and the outcome of these cases "will have long-lasting implications for interstate commerce and will be felt far beyond the Flint, Michigan region." Tiffany Davenport, et al. v. Lockwood, Andrews, and Newnam, Inc., et al., 854 F.3d 905, 910 (6th Cir. 2017).
Additionally, Plaintiffs allege that their damages are ongotng, which implicates the USEPA as a potential party at fault. Beyond MDEQ Defendants'
5 Almost half of Plaintiffs' Complaint consists of allegations against various LAN and Veolia entities, even though they have not been made parties to this particular action.
10

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.703 Page 15 of 17
continuing position that the delay in corrosion control was supported by the federal LCR, and that beginning in February 2015 the delay in corrosion control was specifically directed by USEPA, MDEQ and the City of Flint have operated pursuant to USEPA's direction under USEPA's Emergency Administrative Order since January 21, 2016. A portion of Plaintiffs' damages therefore are likely attributable to the federal agency. The extent of USEPA's duty to direct, guide, and control MDEQ's response to Flint's water issues, and whether USEPA was negligent in its direction to MDEQ both before and after January 21, 2016, raises a substantial federal question that will undoubtedly affect this case and how USEPA interacts with state agencies moving forward.
CONCLUSION AND RELIEF REQUESTED WHEREFORE, MDEQ Defendants respectfully request that this Court retain jurisdiction over this case pursuant to 28 U.S.C. § 1441 and grant these Defendants any other just and proper relief.
11

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.704 Page 16 of 17

Dated: April 13, 20 18

Respectfully submitted,

Foster, Swift, Collins & Smith, P.C.

Fraser, Trebilcock, Davis & Dunlap

Attorneys for Defendants Patrick Cook Attorneys for Defendant Liane

and Michael Prysby

Shekter Smith

By: /s/ Charles E. Barbieri Charles E. Barbieri (P31793) Allison M. Collins (P78849) 313 S. Washington Square Lansing, MI 48933 (51 7) 371-81 00 cbarbieri@fosterswift.com

By:/s/ Thaddeus E. Morgan (w/permission) Thaddeus E. Morgan (P47394) 124 West Allegan Street, St 1000 Lansing, MI 48933 (517) 482-5800 tmorgan@fraserlawfirm.com

Clark Hill PLC Attorneys for Bradley Wurfel and Daniel Wyant
By: Is/ Michael Pattwell {w/permission) Jay M. Berger (P57663) Michael J. Pattwell (P72419) 212 E. Grand River Ave. Lansing, Michigan 48906 (517) 318-3043 mpattwell@clarkhill.com

Kotz Sangster Wysocki, P.C. Attorneys for Stephen Busch
By: Is/ Phillip Grashoff(w/permission) Phillip A. Grashoff, Jr. (P 14279) 36700 Woodward Ave., Suite 202 Bloomfield Hills, MI 48304 (248) 646-1050 pgrashoff@kotzsangster.com

Burdick Law, P.C. Attorneys for Defendant Adam Rosenthal

By: Is/ James W. Burdick (w/permission) James W. Burdick (Pll397) 1760 S. Telegraph Road, Ste. 300 Bloomfield Hills, MI 48302 (248) 335-5000 jwb@burdickpc.com

12

Case 5:18-cv-10699-JEL-MKM ECF No. 29 filed 04/13/18 PageID.705 Page 17 of 17

CERTIFICATE OF SERVICE

I hereby certify that on April 13, 2018, I directed Wendy Paul to electronically file the foregoing with the Clerk of the Court using the ECF system which will send notification of such filing to all parties of record.

Dated: April 13, 20 18
32972:0000 I :3602716-1

s/ Charles E. Barbieri Charles E. Barbieri (P31 793) Foster, Swift, Collins & Smith, P.C. 313 S. Washington Square Lansing, MI 48933-2193 (51 7) 371-8155 cbarbieri@fosterswift.com

13

 
 Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.46 Page 1 of 53
EXHIBIT A

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.47 Page 2 of 53

Approved, SCAO

STATE OF MICHIGAN

Court of Claims

JUDICIAL DISTRICT

JUDICIAL CIRCUIT

COUNTY PROBATE

Court address 925 W. Ottawa Street, Lansing, MI 48909

Original - Court 1st copy - Defendant

2nd copy TPlaintiff
3rd copy - Return
1
CASE NO.
I
l,·oooaq/· M z. ~~~ Court telephone no.
(517) 373-0807

Plaintiffs name(s), address(es), and telephone no(s}.

· · ·· 1·--1 :- Defendant's name(s), address(es), and telephone no(s).

BRENDA

BROWN .,

KERI

WEBBER• STEPHANIE

WEBB-.~;'--R-ra~n""d"';

.. :.
•t..

·.
'

.
'

.

·1·l'

'

1•,1-t:.•.-

v·,,,,

·9GY:~RNOR RICI( SYNDER; in Ius individual and offictal capacities, and

t.l.. •"•'

•

.

i

'VW', a minor, by and through her next friends KERI WEBBER and

the STATE OF MICHlGAN for prospecttve rehef~nly; MICHIGAN

MICHAEL WEBBER

V

DEPARTMENT OF ENVIRONMENTAL QUALfrY; MICHIGAN

DEPARTMENT OF HEALTH AND HUMAN S~VlCES; DANIEL

WYANT; NICK LYON; ANDY DILLON; LIANE SHEKTER-SMITH;

Plaintiffs attorney, bar no., address, and telephone no. Alyson Oliver (P55020) Oliver Law Group P.C. 363 W. Big Beaver Rd., Ste. 200 Troy, Ml 48084

ADAM ROSENTHAL; STEPHEN BUSCH; PATiuCK COOK; MICHAEL
I
PRYSBY; BRADLEY WURFEL; JEFF WRIGHT; EDWARD KURTZ;

I
DARNELL EARLEY; GERALD AMBROSE; E~EN WELLS; NANCY
PEELER; and ROBERT SCOTT, in their individu~l and official

capacities, jointly and severally

i

(248) 327-6556

II I
SUMMONS NOTICE TO THE DEFENDANT: In the name of the people of the State of Michigan you are notified:
1. You are being sued. !
2. YOU HAVE 21 DAYS after receiving this summons to file a written answer with the court and serve~ copy on the other party or take other lawful action with the court (28 days if you were served by mail or you were served outside this state).
I
3. If you do not answer or take other action within the time allowed, judgment may be entered against you for the relief
demanded in the complaint. I

I

Family

Division

Cases

(The

following

is

information

required

in

the

caption

of

every

complaint

and

is

to

be

i
completed

by

the

plaintiff.)

0 This case involves a minor who is under the continuing jurisqiction of another Michigan court. The nam~ of the court, file

number, and details are on page _ _ of the attached complaint.

1

0 There is no other pending or resolved action within the jurisdiction of the family division of circuit court involving the family

or family members of the parties.

:

DAn action within the jurisdiction of the family division of the circuit court involving the family or family members of the parties

has been previously filed in

IThe action
Docket no.

D remains

Dis no longer

Court.
I

Ipending. The docket number and the judge assigned to the action are:

Judge

Bar no.

I
Civil Cases (The following is information required in the caption of every complaint and is to be completed by the plaintiff.)
0 This is a business case in which all or part of the action includes a business or commercial dispute und~r MCL 600.8035. 0 There is no other pending or resolved civil action arising out of the same transaction or occurrence as alleged in the

complaint. I
0 A civil action between these parties or other parties arising out of the transaction or occurrence alleged in the complaint

has been previously filed in

IThe action
Docket no.

0 remains

0 is no longer

Court.
I

Ipending. The docket number and the judge assigned to the: action are:

Judge

Bar no.

IVENUE I or Plaintiff(s) residence (include city. township, viila~
Flint, MI
Place where action arose or busines::; conducted
Flint, MI

Defendant(s) residence (include city, township, or village)
Flint, MI

ll/01/2017
Date

Sign t of attorney/plaintiff

If you require special accommodations to use the court because of a disability or if you require a foreign language interpreter to help you fully participate in court proceedings, please contact the court immediately to make arrangements.

MC 01 (6/17) SUMMONS AND COMPLAINT MCR 2.102(8)(11), MCR 2.104, MCR 2.105, MCR 2.107, MCR 2.113(C)(2)(a), (b), MCR 3.206(A)

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.48 Page 3 of 53

IN THE STATE OF MICHIGAN COURT OF CLAIMS

BRENDA BROWN, KERI WEBBER, MICHAEL WEBBER, STEPHANIE WEBBER and 'VW', a minor, by and through her next friends KERI WEBBER AND MICHAEL WEBBER,

Plaintiffs,

Civil Action N9.

GOVERNOR RICK SNYDER; in his individual and official capacities, and the STATE OF MICHIGAN for prospective relief only; MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY; MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES; DANIEL WYANT; NICK LYON; ANDY DILLON; LIANE SHEKTER-SMITH; ADAM ROSENTHAL; STEPHEN BUSCH; PATRICK COOK; MICHAEL PRYSBY; BRADLEY WURFEL; JEFF WRIGHT; EDWARD KURTZ; DARNELL EARLEY; GERALD AMBROSE; EDEN WELLS; NANCY PEELER; and ROBERT SCOTT, in their individual and official capacities, jointly and severally,
Defendants,
______________________________________!

I
17-<500~q I I -MZ St-e+>~s
COMPLAINT I
I I

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-·~
~

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f'...)

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF and=MONEY

D~GES I

INTRODUCTORY STATEMENT

1. This action is for personal injuries and property damages arising out Defendants'
I
unlawful conduct- which from April25, 2014 to the present have experienced and will continue to
!
experience serious personal injury and property damage caused by Defendants' deliberate,
I I I
reckless, and negligent misconduct. Defendants caused a public health crisis by exposing I !
Plaintiffs to contaminated water. Defendants also exacerbated the crisis by conce~ling and
I
misrepresenting its scope, failing to take effective remedial action to eliminate it, and then lying
I
about it to cover up their 1nisconduct.

2. Defendants DANIEL WYANT; NICK LYON; ANDY DILLON;i LIANE
I
I
SHEKTER-SMITH; ADAM ROSENTHAL; STEPHEN BUSCH; PATRICK COOK; MICHAEL
I

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.49 Page 4 of 53
't PRYSBY; BRADLEY WURFEL; JEFF WRIGHT; EDWARD KURTZ; DARNELL BARLEY; GERALD AMBROSE; EDEN WELLS; NANCY. PEELER; and ROBERT SCOTI shall be referred to as the "State Officials Defendants". Summary of the Constitutional and Civil Rights Violations and InJuries Caused by the Defendants: 3. Defendants deliberately deprived Plaintiffs of the rights and guarantees secured by Article 1. § 17 to the Michigan Constitution. Defendants deprived Plaintiffs of life, liberty, and property without due process ~flaw, as they knowingly took from Plaintiffs safe drinking 'Yater, and replaced it with what they knew to be a highly toxic alternative, solely for fiscal purposes. 4. Moreover, Defendants denied Plaintiffs their constitutional right to fair and just treatment during executive investigations as evidenced by the falsifications, deliberate delays, and deceptive communications frC?m State Officials; who deliberately denied the enormous known risks facing individuals. 5. The evidence of the denial of a fair and just treatment as required by Article 1,
" Section 17 of the Michigan Constitution, is manifest, in that State officials engaged in an
Unconscionable and/or deliberately indifferent fraud against Plaintiffs pursuant to customs, policies, and/or practices of Defendant State oflyfichigan, to wit: Plaintiffs were led to believe by the State, acting through the Michigan Department of Envirorunental Quality, the Michigan Department of Health and Human Services, and/or the Governor's office, and/or the Flint Emergency Managers Darnell Earley, and Jerry Ambrose, and other State officials acting in their official capacities, that the Fliilt River water was safe to drink and to use for cooking, bathing, and other personal uses, at a time when these State officials knew the water was in fact not safe.
2

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.50 Page 5 of 53
JURISDICTION AND VENUE 6. The Michigan Court of Claims has personal jurisdiction over the Defendants herein,
!
because MDEQ and MDHHS are agencies ofthe State ofMichigan, the Flint Emergency Managers
1
ot Earley, and Ambrose, were at all relevant times hereto official agents/policymakers for 1fl:e State
· ofMichigan, and Defendant Snyder is an official policymaker for Defendant State. 7. The Michigan Court of Claims also has original jurisdiction over this matter
pursuant to MCL § 600.6419, et seq.l because the claims herein are brought against the State, its departments, and officers all acting in their official capacities, all within the meaning of MCL §
600.6419(7). 8. Venue is proper in the Court of Claims pursuant to MCL § 600.6419, et seq.
9. Plaintiffs filed Notice within six months of the accrual of Plaintiffs' claim, and this Complaint satisfies all timeliness requirements ofMCL §§ 600.6431 and 600.6452.
PARTIES A. Plaintiffs
10. Plaintiffs have at all times relevant been residents of Flint, Michigan and citizens of the State of Michigan who have suffered personal injuries as a result of exposure to the City of Flint's drinking water, and/or property owners who have had property located in Flint damaged from exposure to the City of Flinfs drinking water, and/or have suffered or continue to suffer economic hann caused by the City of Flint's drinking water.
11. As a result of Defendants' actions, Plaintiffs have suffered personal injuries including, but not necessarily limited to brain and/or developmental injuries including (without limitation) lead poisoning, cognitive deficits, hair loss, skin rashes, digestive and other organ problems, scarring, stroke, high blood pressure, loss ofvision, asthma, infections, physical pain and
3

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.51 Page 6 of 53
<'
suffering, legionella, mental angtiish, fright and shock, denial of social pleasures and enjoyments, embarrassment, humiliation and mortification.
12. Plaintiffs have also suffered property damage in the form of corroded pipes, service lines, and appliances in the home, and economic loss in reduced property value and water bills for unsafe water.
13. Plaintiff Brenda Brown resides at 2761 Chicago Blvd. Flint, MI 48503. She owns her home, which is serviced by water provided by the City ofFlint. Brenda Brown suffered damages as a direct and proximate result ofDefendants' conduct described herein.
14. Plaintiff Keri Webber, Michael Webber, StepJianie Webber and minor VW resides at4208 Ogema Avenue Flint, MI 48507, which is owned by the family and which is serviced by water provided by the City of Flint. The horne tested positive for lead contamination. The Webber family suffered damages as a direct and proximate result ofDefendants' conduct described herein.
B. Defendants 15. All individual Defendants are sued in their individual and/or official capacities as
indicated below. 16. Defendant Rick Snyder is the Governor of the State of Michigan ("Governor") and
is vested with executive power pursuant to Art. V, Section 1 of the Michigan Constitution. The Governor is responsible for the management of state government for the health and welfare of its citizens and residents and is sued by Plaintiffs in both his individual capacity for compensation for the Plaintiffs, ins<?far as his deliberate conduct constituted an abuse and/or misuse ofhis authority, and, in his official capacity, for prospective equitable reliefto correct the hann caused and prolonged by state government and to pr~vent future injury. The Governor is sued in his individua~ capacity
4

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.52 Page 7 of 53

<'

for the injuries he caused to Plaintiffs resulting from his deliberately indifferent dep~vation of Plaintiffs' constitutional and civil rights.

17. Defendant State ofMichigan ("the State") operates its Department ofEnvirorunental

Quality ("MDEQ,), which is the state department primarily responsible for the environmental safety

•

I

and health of Michigan citizens and residents. The State is sued for injunctive and(or p~ospective

.relief, because, acting through MDEQ and its employees, it caused the public health crisfs af issue

in this case, concealed the harm that it caused and has exacerbat~ and prolonged the injuries to

Plaintiffs by failing to effectively remediate the hann it caused and concealed.

18. Daniel Wyant ("Wyant") was Director of MDEQ and is sued by Plaintiffs in his

individual capacity because he participated in the decisions that deliberately created, increased and

prolonged the public health crisis at issue in this case and participated in the concealment of the

harm.

19. Andy Dillon ("Dillon) was Treasurer for the State of Michigan and is sued by

Plaintiffs in his individual capacity because he caused harm to Plaintiffs when they developed an

interim water delivery plan in June 2013 which favored the predominately white Genesee County

water users and discriminated against the water users in Flint, a predominantly African American

community.

20. Nick Lyon ("Lyon") was Director ofthe Michigan Department ofHealth and Human

Services (''MDHSS'') and is sued by ~laintiffs in his individual capacity because he participated in

the decisions thilt deliberately created, increased and prolonged the public health crisis at issue in

this case and participated in the concealment ofthe harm his dep~ent caused Plaintiffs.
-- ··- - -:21.--IJ.ane sliekter-siiiiili ("Smith") was Chiefof-tiie Officeof Driliking.Water and-··-

Municipal Assistance for MDEQ, holding that position until October 19t 2015 when she was

5

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.53 Page 8 of 53
removed from her position. Smith is sued in her individual capacity because during h~r tenn as ChiefofDrinking Water for MDEQ, she approved and participated in the decisions that deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the hann her department caused Plaintiffs.
22. Adam Rosenthal ("Rosenthal'') was a Water Quality Analyst assigned to th~ Lansing District Office ofthe MDEQ. Rosenthal is sued in his individual capacity because, as Wat~r Quality Analyst for MDEQ, he approved and participated in, the decisions that deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment of the harm his department caused Plaintiffs.
23. Stephen Busch ("Busch") was District Supervisor assigned to the Lansing District
Office ofthe MDEQ. Busch is sued in his individual capacity because, as District Office Supervisor of lv.IDEQ, he deliberately created, increased and prolonged the public health crisis at issue in this case and participated in the concealment ofthe harm his departm~nt caused Plaintiffs.
24. Patrick Cook ("Cook") was at all relevant times a Water Treatment Specialist assigned to the Lansing Community Drinking Water Unit of the 1\IDEQ. Cook is sued in his individual capacity because, as Water Treatment Specialist District of MDEQ, he approved of, and thereby participated in, the decisions that deliberately created, increased and prolonged the public health cris~s at issue in this case and participated in the concealment of the harm his department caused Plaintiffs.
25. Michael Prysby (''Prysby") was an Engineer assigned to District 11 (Genesee County) ofthe MDEQ. Prysby is sued in his individual capacity because, as Engineer assigned to District 11, he approved of, and thereby participated in the decisions that deliberately created,
6

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.54 Page 9 of 53

increased and prolonged the public health crisis at issue in this case and participa~ed in the
I
concealment ofhann his department caused Plaintiffs.

26. Bradley Wurfel ("Wurfel) was the Director of Conununications for l\1DEQ. Wurfel
I
is sued in his individual capacity because, as Director of Communications for ~E~, he was

I
responsible for the deliberately misleading and inaccurate communications that incr~ased and
~roviding prolonged the public health crisis at issue in this case and for making false statements and

II
false assurances which caused hann to Plaintiffs. i I I 27. Edward Kurtz ("Kurtz") was the Emergency Manager of Flint appointbd by the

I I
Governor in August 2012 and served in this capacity until July 2013. Kurtz is sued in his individual
I
capacity because, during his term as Emergency Manager ofFlint, he deliberately created, increased

and prolonged the public health crisis at issue in this case and participated in the concealment ofthe

.

.

I

.

harm he caused Plaintiffs. Kurtz is also sued because he conspired with other Defendants to deprive

.

I

Plaintiffs of their civil and ~onstitutional rights and participated in or aided and/or abe~, others to

violate Plaintiffs' rights to full and equal enjoyment of public services as guaranteed hnder the

. I

ELCRA and the Equal Protection Clause of the 14th Amendment, as well as the 13th Alhendment

.

I

of the United States Constitution.

!

!

I
28. Darnell Earley ("Earley") was the Emergency Manager ofthe City ofFlint kppointed

by

the

Governor

on

November

1,

2013

and

served

in

this

capacity

until

January

I
12,2015.1

Earley

is

I I

sued

in

his

individual ·capacity

because,

·during

his

tetm

as

Emergency

Manager

I
of Flint,

he

I

I
deliberately ereated, increased and prolonged the public health crisis at issue in this case and I

I
participated in the concealment of the harm he caused Plaintiffs. Earley is also sued bruse he

conspired with other Defend@Jl,ts to deprive Plaintiffs of their civil and constitutional rights and
. I
participated in and/or aided and abetted others to violate Plaintiffs' rights to full and equal ehjoyment

7

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.55 Page 10 of 53
.. I of public services as guaranteed under the ELCRA and the Equal Protection Clause of the 14th
Amendment, as well as the 13th Amendment of the United States Constitution. 29. Gerald Ambrose ("Ambrose") was the Emergency Manager of the City of Flint
appointed by the Governor on January 13, 2015 and served in this capacity until April ~8, 2015. Ambrose is sued in his individual capacity because, during his tenn as Emergency Manager ofFlint, he deliberately increased and prolonged the public health crisis at issue in this case and participated in the concealment of the hann he caused Plaintiffs. Ambrose is also sued because he conspired with other Defendants to deprive Plaintiffs of their civil and constitutional rights and participated in and/or aided and abetted others to violate Plaintiffs' rights to full and equal enjoyment of public services as guaranteed under the ELCRA and the Equal Protection Clause ofthe 14th Arilendment, as well as the 13th Amendment ofthe United States Constitution.
30. Defendants Kurtz, Earley and Ambrose as Emergency Managers, acted in both their individual capacities and as agents ofth~ State of Michigan, and their 9fficial capacities as policy makers for City of Flint within the meaning of Monell, and as such their actions constituted customs, policies and/or practices of City of Flint.
31. Defendant Eden Wells ("Wells"), was at all relevant times ChiefMedical Executive within the Population Health and Community Services Department of the :MDHHS and was acting within the scope ofher employment andlo~ authority under color of law. She is sued herein in her official and individual capacities. Wells participated in, directed, and/or oversaw the department's efforts to hide information to save face, and to obstruct the efforts ofoutside researchers. Further, Wells knew as early as 2014 ~f problems with lead and legionella cont~ination in Flint's water and instead of fulfilling her duty to protect and notify the public, she participated in ~ding this information. Defendant Wells violated clearly established constitutional rights of ~laintiffs,
8

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.56 Page 11 of 53
1'
•'I including but not limited to the rights to bodily integrity and to be free from state create~ danger. Defendant Wells' actions constitute gross negligence, as she had a substantial lack of concern and/or willful disregard for whether an injury resulted to Plaintiffs. 32. Defendant Nancy Peeler ('~Peeler") was at all relevant times a MDHHS employee in charge of its childhood lead poisoning prevention program, acting within the scope of her employment and/or authority under color of law. She is sued herein in her official and individual capacities. She participated in, directed, and/or oversaw the department's efforts to hide information to save face, and actively sought to obstruct and discredit the efforts of outside researchers. Even when her own department had data that verified outside evidence ofa lead contamination problem, she continued trying to generate evidence to the contrary. Defendant Peeler violated clearly established constitutional rights of Plaintiffs, including but not limited to the rights to bodily integrity and to be free from state created danger. Defendant Peeler's actions consti~ted gross negligence, as she had a substantial lack of concern and/or willful disregard for whethet] an injury resulted to Plaintiffs.
I
33. Defendant Robert Scott ("Scott") was at all relevant ti~es Data Manager for MDHHS's Healthy Homes and Lead Prevention Program, acting within the scobe of his
I
employment and/or authority under color of law. He is sued herein in his official and individual
I
capacities. He participated in, directed, and/or oversaw the department's efforts to hide infonnation
!
to save face, and actively sought to obstruct and discredit the efforts of outside researc~ers. Even
! -
when his own department had data that verified outside evidence of a lead contaminatio~ problem, he continued trying to generate evidence to the contrary. He also served a key role in withholding and/or delaying disclosure of data that outside researchers needed to protect the pel?ple of Flint. Defendant Scott violated clearly established constitutional rights of Plaintiffs, including but not
9

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.57 Page 12 of 53

,.

l

•

I

limited to the rights to bodily integrity and to be free from state created danger. Defendant Scott's

I

I
actions constitute gross negligence, as he had a substantial lack of concern and/or will~ disregard

for whether an injury resulted to Plaintiff.

STATEMENT OF FACTS

34. This case arises from the tragic and preventable poisoning ofthe City of Flint. The

outrageous acts and omissions ofthe Defendants have caused immeasurable and irreparable harm

to Plaintiffs.

A. Dangers From the Flint River Water Have Been Well-Known for Decades

35. The FWTP was constructed in 1917 to draw water from the Flint River as the source

of Flint's drinking water for nearly 50 years until1964.

36. As ear1y as 1964, the U.S. Geological Survey noted high levels of chloride in the

Flint River. Due to the concerns regarding the adequacy of the Flint River to provide safe drinking

water~ Flint evaluated alternatives for a new water supply, and ultimately switched providers. From

1964 to 2014, Flint water users received their water from Lake Huron via purchase from the Detroit

Water and Sewerage Department ("DWSD"). This water did not require treatment through the

FWTP.

37. During this hatf..century, Flint water users enjoyed safe, clean, fresh water in their

homes, businesses, h~spitals and other places ofpublic services.

38. However, since approximately the 1990s, Flint and other local governmental entities

had growing concerns over the cost of the DWSD water supply. Amidst these growing concerns,

Flint and the other local governmental entities commissioned studies for alternative wat~ supplies:

a. A 2001 report by the Department ofNatural Resources noted that certain businesses

along the Flint River' had permits to discharge runoff from industrial anI d mining

activities as well as petroleum and gasoline cleanups.

1

10

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.58 Page 13 of 53

•'I

b. In 2004, a technical assessment of the Flint River raised concerns about~· using the

river as a source of drinking water. One of the key points from the technical

assessment, entitled "Source Water Assessment Report for the City of Flint Water Supply- Flint River Emergency Intake," prepared by the U.S. G_eologic~l Survey,

the MDEQ, and the Flint Water Utilities Department, was that the Flint River was

a highly sensitive drinking water source that was susceptible to contamirlation.

c. In 2006 and 2009, Flint and the local governmental entities completed ldditional studies for alternative water supplies. The 2009 study, prepared by r1ckwood, Andrews & Newnrnan, P.C., Lockwood, Andrews & Newnam, Inc. and~ A. Daly Company (collectively the "LAN Entities") and others, evaluated two alternatives for water supply - continue to purchase from DWSD, or construct a net pipeline (later known as the Karegnondi Water Authority ("KWA,') pipeline) from Lake
H~ I

I
d. In 2011; Flint officials commissioned a study to determine if the Flint River could

be safely used by the city as the primary source of drinking water. The r'Analysis

of the Flint River as a Permanent Supply for the City of Flint, July 201 ~" ("2011 Report''), prepared by Rowe Engineering and the LAN Entities, caution~d against

"thweautesreforofmthethFelriinvteRr icvaenrbweattreerataenddtothme edeotrcmuarnretnFtWreTguPl.aTtiohnesr;ehpoowrtecvoenr,c~ludddietdiothnaalt

treatment will be required than the river can be treated to meet

for Lake Huron Water.. regulatory requirements,

... Although Jater from
aesthetics of thb finished

water will be different than that from Lake Huron.'' The study further boncluded

that such treatments to Flint River water could be done ifimprovements .Were made

to the FWTP. However, if used as a water supply, the study noted thatl"a source

water protection management plan should be developed to . . . identicy pot~ntial

sources of contamination ...."

I

I •

e. The LAN Entities also prepared an additional analysis, attached to the 20i11 Report as an appendix, which detailed over $69 million in improvements that "'ould have to be made to bring the FWTP up to current standards. This additional analysis
specifically projected costs for corrosion control chemicals that would bb required
to ensure the safety of water to be drawn from the Flint River.

39. Use ofthe Flint River as a primary drinking source was rejected in 2011. 1

I
B. Despite These Well-Known Dangers, Defendants Decided to Use Flint River rater as

the Prim~ry Water Source for the City of Flint

1

I

-

40. In August 2012, the Governor appointed Edward Kurtz as Flint's Emergency

Manager.

11

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.59 Page 14 of 53 I

(. I
41. In November of 2012, Kurtz wrote to State of Michigan Treasurer Mdy Dillon

I
suggesting that Flint join the yet to be formed KWA due to projected cost savings ov¢1" DWSD.

I
I
This was pursuant to the Emergency Manager's mandate to cut costs, and consistent with political

.

.

I

pressure from Genesee County Drain Commissioner Jeffrey Wright, who had encoJraged the

formation ofthe KWA in 2009.

I

42. Throughout 2012, DWSD presented to Kurtz, Wright, Dillon, Dayne WAiling and

ar~ents, l the Governor compelling

based on numerous studies, demonstrating that from cost and

water reliability standpoint, Flint should reject Wright's pressure to join KWA and jntinue to

rece~ve contin~ water from DWSD. Most of the discourse about Flint joining KWA or

with

.

.

I

DWSD, included Wright who consistently raised arguments designed to persuade Kurtz, ~ilion and

the Governor that the DWSD cost studies were wrong.

43. In late 2012, Dillon, reacting to Wright's contention that the DWSD cost studies
I
were wrong, r~quested the independent engineering firm of Tucker, Young, Jackson and Tull

(''TYJT") to assess whether it would be cost-effective for Flint to switch from water supplied

by DWSD and join the KWA water delivery system. In February 2013, TYIT concluded that

it would be more cost-effective for Flint on both a short term and long term basis to continue

to be supplied with water from DWSD. I

I
44. On March 27, 2013, MDEQ officials, sensing that Kurtz, Wright, WaJlling and

.

I

Dillon were pushing the Governor to approve Flint joining the KWA, acknowledged that the

decision to switch the water source for Flint was not based on a scientific assessrnjnt of the
I
suitability of the Flint River water. In their own words, "As you might guess w1 are in a
bk situation with Emergency Financial Managers so it's entirely possible that they will making
I
decisions relative to cost.,

12

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.60 Page 15 of 53

•I,

45. On March 28, 2013, in an email from Dillon to Governor Rick Snyoer, with

•

I

copies to numerous other Treasury officials and Wyant, Dillon recommended that he authorize

.

I

KWA going forward, even though the independent firm he hired to perform a cost evalu~tion said

staying with DWSD made the most economic sense. Dillon wrote the Governor, explaining that,

! I
''based upon today's presentations to the DEQ by the City ofFlint, KWA and the engineering finn

.

I

(Tucker Young) Treasury hired to vet the options as to whether Flint should stay with 9WSD or
I

join KWA, I am recommending we support the City ofFlint's decision to join KWA·. The City's
I I
Emergency Manager, Mayor, and City Com1cil all support this decision. Dan Wyant likewise
I I
concurs and will confirm via email." Dennis Muchmore, Governor Snyder's Chiefl of Staff,

I

confinned in a subsequent email that it was Dillon who made ''the ultimate decision" to switch
1

Flint water from the DWSD to the KWA.

46. On April 16, 2013, Governor Snyder, in what is now "Pnderstood to be a non-fiscal
I

decision, authorized Kurtz to enter into a contractual relationship with KWA for the p~ose of

.

I

supplying water to Flint beginning in mid-year 2016.

47. Governor Snyder participated in discussions between his appointed Emergency
I
Manager of Flint, Mr. Kurtz, and his appointed Emergency Manager of Detroit, Kevin Qrr. At the

time the Governor authorized Kurtz to contractually bind Flint to the KWA project, the Governor
I
and State officials knew that the Flint River would be used as an interim source.

48. In June 2013, Dillon, Kurtz, Wright, and Walling developed an intJrim plan

.

I

("Interim Plan") to use the Flint River water before KWA became operational. The Intbm Plan

!

would cover 2.5 years (April25, 2014 until approximately October, 2016).

13

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.61 Page 16 of 53
49. Dillon, Kurtz, Wright and Walling knew that in 2011 the Flint. River was
professionally evaluated and rejected as a drinking source and that upgrades for the FWTP would cost millions.
50. The Governor, in a timeline prepared by his office, confirmed that in Jq,ne 20 13.;
I
he knew that Flint River water would be used as an interim source of water. 51. In May 2013, Emergency Manager Kurtz announced his resignation effeftive July
2013. The Governor reappointed Michael Brown as Flint's Emergency Manager. 52. In September 2013, after Emergency Manager Brown resigned, Darnell Earley was
!
appointed by the Governor as Flint's Emergency Manager. 53. Michael Glasgow, the City of Flint's water treatment plant's laboratory and
water quality supervisor informed the MDEQ on April 16, 2014, that the FWTP wa~ not fit to begin operations and that "management" was not listening to him because "they seem to have their
I
own agenda."·Glasgow continued, "Glasgow said ~n Aprill6, 2014 that ''.... it looks as ~f we \Vill be starting the plant up tomorrow and are being pushed to start distributing water as soon as
!
possible .... I would like to make sure we are monitoring, reporting and meeting reqUirements
I
before I give the OK to start distributing water." The next day, Glasgow '"'Tote Prysby and Busch
I I
of the MDEQ, that "..... I have people above me making plans to distribute water ASl}P. I was reluctant before, but after looking at the monitoring schedule and our current staffing,: I do not
I
anticipate giving the OK to begin sending water out anytime soon. Ifwater is distributed ~from this plant in the next couple of weeks, it will be against my direction. I need time to adequately train
I
additional staff and to update our monitoring plans before I will feel we are ready. I will reiterate
I
this to management above me, but they seem to have their own agenda."
14

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.62 Page 17 of 53

54. Beginning in June 2013 and continuing through April25, 2014, the State; created a

dangerous public health crisis for the users ofFlint tap water when it and Kurtz and Earley ordered

and set in motion the use ofhighly corrosive and toxic Flint River water knowing that the FWTP

was not ready.

55. For at least a year prior thereto, the State knew that using the Flint River water was
!
dangerous and could cause serious public health issues.

C. The LAN Entities Failed to Meet Their Duties of Care and Competence as Design

Engineers for the Flint \Vater Treatment _Plant

1

56. On June 10,2013, the LAN Entities submitted a proposal to Flint for upgrading the

FWTP entitled "Flint Water Treatment Plant Rehabilitation- Phase ll." The proposal WftS to make

"improvements ... intended to help the City operate[] the plant on a full time basis using the Flint
I
River." The proposal was signed by J. Warren Green, Professional Engineer (Project Director) and
I I
Sanlir F. Matta, Professional Engineer (Senior Project Manager).

57. The LAN Entities claimed in their proposal that their "staff has the knowledge,
I
expertise and the technical professionals to handle all aspects ofthe projects. Our staffh~ firsthand

knowledge ofthe [FWTP] ...."

58. The proposal included the following relevant sections:

a. A "Scope of Services" section that stated the "project involves the evaluation and upgrade ofthe Flint Water Plant to provide continuous water supply service to the City of Flint (Flint) and its customers." The, upgrades and improvements would allow the use ofthe Flint River as a watbr supply.

b. A "Standards ofPerfonnance" section where the LAN Entities "agree[d] to

exercise independent judgment and to perform its duties under this contract

in

accordance

with

sound

professional

practices."

As

part

of

the

I
iproposal,

it was understood that Flint was relying upon the professional r~putation,

experience, certification, and ability ofthe LAN Entities.

I 1

15

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.63 Page 18 of 53

59. In or around June 2013, Flint formally _retained the LAN Entities as the design

engineer for improvements and upgrades to. the FWTP for the treatment of new water sources,

including both the Flint River and the KWA pipeline. In deciding to proceed with the ~sition to

the Flint River, the City of Flint noted the LAN Entities' "extensive experience in this field," and

•

I

I

relied upon the LAN Entities' identification of the "engineering, procurement, and construction
I

needs" for the project. Although the City recognized that water from the Flint ruver '~would be
!

more difficult to treat," the City concluded, based on LAN's recommendations, that" the F;lint River
I I
was ''viable as a source'' of the City•s water. LAN continued to advise the City with respect to its

transition to the Flint River through 2015, and ultimately was paid inore than $3.8 million for its

.

I

engineering services.

60. Upon infonnation and belief, there were no bids submitted by the LAN Entities or

•

I

any other frrm for this work, nor were any other firms considered for this work. The contract was
!
awarded without competitive bidding.

61. On June 29, 2013, LAN met with representatives of Flint, representatiyes of the

Genesee County Drain Commissioners Office and th~ MDEQ to discuss:

a. Using the Flint River as a water source;

b. The ability to perfonn the necessary upgrades to the FWTP;

c. The ability to perfonn quality control;

d. The abi1ity for Flint to provide water to Genesee County;

e. The ability to meet an April or May 2014 timeline; and

f. Developing a cost analysis.

16

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.64 Page 19 of 53

.·

62. According to incomplete meeting minutes, "the conversation was guided with focus

on engineering, regulatory, and quality aspects ..." of the items previously referenced, and the

following determinations were made:

a. The Flint River would be more difficult to treat, but was viable as a source;

b. It was possible to engineer and construct the upgrades needed for the

treatm• ent process;

I

c. It was possible to perfonn quality control "with support ~om LAN

engineering which works with several water systems around lthe state,

quality control could be addressed[;]"

·

d. FWTP did not have the capacity to treat and distribute sufficient water to

meet the needs of Flint and Genesee County;

,

e. There were many obstacles to overcome, but completion by the April or May 2014 timeline was reachable; and

f. The next steps were for the LAN Entities to present Flint with a proposal

that would include engineering, procurement, and construction nJds for the

project along with cost estimates.

,

63. Since 1965, the FWTP served as a secondary and backup water supply system to the

•

I

DWSD. Typically, a secondary supply for a public water system would be needed only during

•

I

emergency situations, and is normally designed for short-term operation such as providing the

•

I

average daily demand for only a few days.

64. Upon information and belief, the FWTP was previously upgraded in or around 2004
I
in order to allow it to operate for an extended short-term period (i.e., approximately !6 weeks)

because of a perceived high risk that the DWSD supply would fail and remain out of service for an

extended duration.

65. Due to the aforementioned 2013 agreement, the FWTP needed upgrading to operate

•

I

on a full-time basis, otherwise it would be unable to provide the citizens of Flint with sufficient
i

quantities ofwater.

17

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.65 Page 20 of 53

'I. 66. In April of 2014, the LAN Entities, Flint and MDEQ officials addressed and

discussed optimization for lead, and they decided that having more data was advisable before

implementing an optimization method.

67. On April9, 2014~ the City received the necessarype1mits from MDEQ to rraw Flint

River water for distribution as the supply source for its water distribution system .during !the multi-

year transition to the new KWA facility.

68. Despite receiving these pem1its, the Flint water system was not prepared for the

I

switch to Flint River water. The Flint River was contaminated with rock-salt chlorides washed into

!

.

of the river from road surfaces over the course ofmany harsh Michigan winters. The level chlorides

in the Flint River was eight times the levels provided in DWSD water. Chlorides 'fe highly

corrosive, and must be neutralized with anticorrosive agents, such as phosphates, beforf entering

public water systems. It is well known that corrosive water that is not properly treated results in the

!

corrosion ofpipes~ such that the metals in the pipes, including lead, will leach into drinking water.

•

!

69. The LAN Entities knew, if not recommended, that the FWTP would begi~ drawing

water from the Flint River later that month that would not be treated with anti-cottosive measures.
I
Moreover, the potential consequences in endangering the public health as a result ofnot ~sing anti-
~
corrosive treatments when using water from the Flint River as the primary source were 1or should

have been well-known and foreseeable to the LAN Entities, engineering firms that, aC<fOrding to

their website, were a "national leader in the heavy civil infrastructure engineering indusror," "one

ofthe most respected engineering firms in the United States today,'' and "a recognized leader in the
I

industry with a rich history of serving a diverse group of heavy civil infrastructure clients across

.

!

the country.,

18

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.66 Page 21 of 53

70. From July o£2013 through April of2014, the LAN Entities provided pr?fessional

engineering services associated with the switch from the DWSD to the FWTP, but failed to meet

their duty of care and competence. The LAN Entities were responsible for providing engineering
I
services to ensure that the FWTP was equipped to treat water from each of its new sovrces. The

LAN Entities' actions facilitated the transfer of Flint's water source to river water without proper
I
corrosion control treatment. The improvement and upgrade plans to the FWTP were approved by
I
MDEQ in April of2014 pursuant to plans and specifications signed and sealed by the LAN Entities.
I
Further, the LAN Entities, as Flint's outside contractor, had a duty to recognize thfi need for

corrosion control and advise that it should be implemented. Yet, incredibly, at the time ofthe switch
I I
to Flint River water, no phosphates were being added to the water supply. In fact, nothing
I

whatsoever was being done to account for the corrosive nature of the Flint River water. Moreover,
I

the LAN Entities did not require water quality standards to be set for the Flint River water that

.

.

!

would be delivered to Flint's residents and property.

D. Numerous Signs of the Public Health Crisis Caused By the Contaminated Water

Were Evident Within Weeks of the Switch

~

71. On April25, 2014, Flint officia1ly began using the Flint River as its p~aI ry water

source, despite the fact that the proper preparations had not been made and Glasgow h'd warned

that the FWTP was not ready.

72. Within weeks of switching water sources, complaints began to pour in from
1

residents regarding the smell, taste, and color ofthe drinking water.

i

73. In June 2014, citizen complaints about contaminated water continued without the

.

I

State doing anything to address these complaints. Many Flint water users reported that the water
I

was making them ill.

19

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.67 Page 22 of 53

74. On August 14, 2014, Flint's water tested above legal limits for total colifonn and E.

coli bacteria. The City issued boil water advisories on August 16, 2014 and September 5, 2014 in

response.

75. To address the bacteria problem, the water was treated with additional; chlorine.

However, as has been well known for decades, in corroded pipes, chlorine preferentially r~cts with
!
the bare metal instead of attacking solely bacteria. The addition of substantial amounts of chlorine

to a water supply was thus ineffective in treating bacteria- so more chlorine was added. ,

76. The use of chlorine to disinfect water produced various disinfection b)fl>roducts,

including trihalomethanes (often refelTed to as "Total Trihalomethanes" or ''TTHM"). When bare

pipes are not protected with a corrosion control protocol, more chlorine yields more ITHM.

77. Immediately after the discovery of Flint's bacterial problems, it was apparent that

.

!

Flint's TIHM levels were high. This should have been a red flag that the steel in the pip~ had been

laid bare by the high salt concentrations the water pumped from the Flint River.

78. As officials were beginning to assess the extent of Flint's TIHM problems, another

•

I

problem emerged in the summer of2014- the Michigan Department ofHealth and Human Services
I

(MDHHS) reported an outbreak of Legionnaires' disease- another red flag.

79. Legionnaires' disease is a severe form of pneumonia which, when tre~ted early

enough, has a mortality rate of 20%; if left untreated, the rate rises to 80%. Infection iJ;1 humans

occurs when water droplets contaminated with legionel/a bacteria are inhaled or when water-

containi~g legionella enters the trachea. Extensive studies of legionella have established that the

.

!

pathogen enters the water supp_ly when the "bio-film" protecting pipes is stripped away! which is

exactly what happened when the River's corrosive water entered the City's pipes.

20

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.68 Page 23 of 53

80. In addition to a rise in the reported incidence ofLegionnaires' disease, -MDHHS first
!
noted another potential problem related to Flint's water in September 2014 -lead poisoning rates

"were higher than usual for children under age 16 living in the City of Flint during the t;nonths of

July, August and September, 2014."

81. As early as October 1, 2014, it was known that one of the causes of the bacterial
I
contamination was the existence of iron pipes in the Ci~y's water distribution system.

82. Most of Flint's ~50 miles ofwater mains are now over 75 years old and constructed

ofcast iron piping. Cast iron pipe is subject to internal corrosion, called tuberculation, which causes
I
buildup on the pipe interior, leading to water quality issues, reduced flow and pressures, and
I
leakage. Tuberculation also encourages the development ofbiofilms, layers of bacteria that attach

to the interior pipe wall.
83. ·an October 13, 2014, General Motors ceased the use of Flint River water at its I !
engine plant because of fears that it would cause cottosion due to high levels of chloride.
I
84. On December 31, 2014, the first round oflead monitoring showed resul~s ~xceeding

the Lead and Copper Rule's action levels for lead, 15 parts per billion. Worse yet, these samples

were not drawn from the highest risk homes as required by the Lead and Copper Rule. i

85. On January 9, 2015, University of Michigan-Flint water· tests revealed :high lead

levels in two locations on campus, causing the university to tum offcertain water fountains.
I

86. In addition to these events, the City conducted six (6) sampling events on the
I

corrosivity of the "treated" drinking water that occurred either before or concurrently with the
1

creation of reports by the LAN and V~olia Entities. The sampling events were in May, 2014,

-

I

I

August 2014, October2014, and February2015, May2015, andAugust2015. The sampling results

.

I

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·: all showed that the drinking water was very corrosive, and yet none ofthe reports produced by the LAN and Veolia Entities mentioned these sampling results.
E. The LAN and Veolia Entities Were Asked to Evaluate the Problems, But Failed to Do So Properly 87. In November of2014, the LAN Entities were on actual notice of the need to assess
the factors contributing to high TTHM levels following the water source change because the LAN Entities were engaged to evaluate this issue by Flint and provide a report of its findings, which they did in August of 2015.
88. The LAN Entities issued a 20-page Operational Evalua~ion Report on November 26, 2014, intended to address compliance with EPA ~d MDEQ operations and regulations. The LAN Entities entirely failed to address the hazard of lead associated with the corrosive water flowing through the pipes, at least half ofwhich were made oflead.
89. Veolia North America, LLC, Veolia North America, Inc, and Veolia Water North America Operating Services, LLC (collectively the ''Veolia Entities") submitted to Flint their "Response to Invitation to Bid for ~ater Quality Consultant," Proposal No. 15-573. The Veolia Entities proposed ''to address the immediate reliability and operational needs" of Flint's water system.
90. Flint had requested engineering services: a. To r~view and evaluate ''the City's water treatment process . . . and procedures to maintain and improve water quality''; b. To develop and report with recommendations "to maintain compliance with both State ofMichigan and federal agencies"; and c. To assist the City in implementing the recommendations.
91. The Veolia Entities, however, responded that "addressing the fundamental issues concerning water quality compliance and operational reliability is much more complex than the
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.70 Page 25 of 53

recommendations study and advisory services OU:tlined [in City of Flint's request]." The Veolia

Entities proposed to respond to Flint's requested scope ofwork by:

a. Calibrating "daily water quality samples with the City's hydraulic model'';

b. Refining "the operational strategies for the plant and distribution :system";

c. Coordinating "daily efforts across plant, operations and maintenance staff';

and

1

d. Alleviating "continued concerns from the public communication~ process."

92. In February of 2015, the Veolia Entities were hired through a resol}ltion that

incorporated a standard of perfonnance clause, which stated that "~e City is relying upon the
1
professional reputation, experience, certification, and ability of [Veolia]."

93. The Veolia Entities' task was to review Flint's public water system, :including

treatment processes, maintenance procedures, and actions taken. As water treatment pro~essionals,
I
the Veolia Entities had an opportunity to ~atch what the LAN Entities had missed or refused to

warn about- corrosive water was being pumped thro:ugh lead pipes into the homes ofFlint residents

without corrosion control.

94. On February 10, 2015, the Veolia Entities and the City issued a joint press release

•

•

I

to the community at large, indicating that Veolia was an ''urban water expert" in ''handling

challenging river water sources" and that it would be evaluating all of the City's water :treatment

processes.

95. The press release contained no limitation on the Veolia Entities' scop~ of work.

David Gadis, the Vice President 6fVeolia North America,s Municipal & Commercial Business
1

stated, "We understand the frustration and urgency in Flint[.] We are honored to support your

•

I

community with our technical expertise so that together we can ensure water quality for the people

ofthe city ofFlint." He continued, "We have extensive experience handling challenging river water

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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.71 Page 26 of 53

sources, reducing leaks and contaminants and in managing discolored water." Based on these

representations, the people of Flint had every reason to rely on the Veolia Entities' subsequent

representations of safety.

96. On February 12, 2015, Rob Nicholas, Veolia's Vice President stated: "We're going

to look at the numbers, we're going to look at the plant, we're going to decide how the equipment's
!
functioning, look at the raw water, look at the finishe~ water, decide how it's getting through the

pipe to the house, and from that, decide how to fix each of those problems as we go forward."
I
97. Despite its representations that it would conduct a thorough, all-encompassing

review ofthe Flint Water system, it took Veolia only 6 days to issue an interim report on its findings,

which it presented to a committee of Flint's City Council on February 18, 2015. Per the interim

report, the only issue not in the Veolia Entities' scope of study was "why the change from [Lake

Huron water via the Detroit system pipeline to Flint River water] or the history of the utility."

98. In the interim report, the Veolia Entities, indicated that Flint's wat~ was "in

compliance with drinking wate.r standard~." It also noted that "[s]afe [equals] compliance;with state

and federal standards and required testing." The Veolia Entities effectively declared publicly that
I
Flint's water was safe. .

99. The Veolia Entities' interim report also noted that the discoloration in Flint's water
!

"raises questions,'' but"[d]oesn't mean the water is unsafe." It noted that among the Veolia Entities'

.

I

"next steps" were to "carry out more detailed study of initial findings'' and. "[m]ake

recommendations for improving water quality."
-
100. li_l response to potential questions about ''[m]edical problems," the Veoli~ Entities'

interim report dismissively claimed that "[s]om~ people may be sensitive to any water."

101. Veolia issued its final "Water Quality Report" dated March 12, 2015.

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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.72 Page 27 of 53
~ ..
102. In the final report, the Veolia Entities noted that it had conducted a "160-hour assessment ofthe water treatment plant, distribution system, customer services and communication programs, and capital plans and annual budget." The fmal report claims that "a review of water quality records for the time period under our study indicates compliance with State and Federal water quality regulations."
103. The final report states that "the public has also expressed its frustration ofdiscolored and hard water. Those aesthetic issues have understandably incr~ased the level of concern about the safety of the water. The review of the water quality records during the time ofVeolia's study shows the water to be in compliance with State and Federal regulations, and based on those standards, the water is considered to meet drinking water requirements."
104. Specifically addressing the lack of corrosion control, the fmal report ~otes that "[m]anypeople are frustrated and naturally concerned by the discoloration of the wate~ with what primarily appears to be iron from the old unlined cast iron pipes. The water system could add a polyphosphate to the water as a way to minimize the amount of discolored water. Polyphosphate addition will not make discolored water issues go away. The system has been experiencing a tremendous number of water line breaks the last two winters. Just last week there were more than 14 in one day. Any break, work on broken valves or hydrant flushing will change the flow ofwater and potentially cause temporary discoloration."
105. Therefore, in addition to missing the connection between the lack of corrosion control and lead contamination, the Veolia Entities made a permissive ''could" ·suggestion aimed only at reducing aesthetic deficiencies while suggesting that Flint's drinking water met all applicable requirements and was safe to drink.
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.73 Page 28 of 53

106. In fact, not only did the report fail to discuss lead corrosion, the use of

polyphosphate, as suggested, only deals with iron corrosion and could worsen lead corrosion.

107. As a result of the LAN and Veolia Entities' actions, the residents ofFlint, including

Plaintiffs, were exposed to much greater amounts ofpoisonous water, and for a much longer time.

F. The LAN and Veona·Entitles Fail to Conduct a Root Cause Analysis

108. Both the LAN and Veolia Entities were hired to ensure Flint's water system was

protective ofhuman health and compliant with federal and state environmental statutes. In February

2015, the LAN Entities issued their report ''Trihalomethane Fonnation Concern,'' and on March 12,

2015, the Veolia Entities issued their report, "Flint Michigan Water Quality Report." Critically

absent from both reports was a root cause analysis of why the high TTHM levels existed. A root

cause analysis is the standard process used by engineers to determine the origin, case and

interrelationship of events. It is a standard practice used by environmental, health, safety and

infrastructure engineers whenever an adverse event .occurs. Understanding why an event occurred

is critical to developing effective recommendations for dealing with an event. It is important to note

that a root cause analysis would not have required invasive testing, just oonsideration of the facts

known to date and drawing a conclusion about their interrelationship. Had such an analysis been

done, the consultants would have discovered the corrosion of the pipes, and the presence of lead

and legionella in the water system.

109. The causal relationship ofevents leading to the high TIHM levels is not complex

science. It is widely known in the scientific community that:

• Road salt from decades ofdeicing contaminates northern rivers such as the Flint River;
I

• Road salt contains chloride, which is highly corrosiv~ to steel and lead pipes and that

such pipes are used throughout Miphigan and Flint;

'

• Chloride strips pipes ofprotective surfaces which frees legionella and lead;

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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.74 Page 29 of 53

I
'·
• Urban rivers contain high levels of E. coli;

• While chlorine is effective in treating E. coli, it becomes far less effective when bare metal has been exposed because the chlorine preferentially reacts with the metal;

• The need to add excessive chlorine is indicates that bare metal has been exposed, and that corrosion is occurring; and

• Excessive chlorination causes high TIHM levels.

110. The ~ailure of the LAN and Veolia Entities to conduct a root cause analysis

recognizing the corrosion's role in Flint's water problems is truly inexplicable because as detailed

above all ofthese events had been highly publicized before they issued their report: ·

• The Flint River had been highly impacted by road salt for decades-the river had eight
times more salt than water supplied by the DWSD;

• Lead and steel pipes are ubiquitous in the United States, Michigan and Flint;

• In the summer of 2014, Flint suffered one of the worst outbre~ of Legionnaires' disease in U.S. history;

• On October 14, 2014, as widely reported by the press the next day, GM stopped using

the City's water because of corrosivity;

'

• On January 9, 2015, UM Flint shut its water fountains because lead exceed federal standards; and

• In February 2015, if not before, lead in drinking water in other locations also exceed the standards.

111. Any of these red flags, and indeed the general knowledge in the scientific

community, should have alerted the LAN and Veolia Entities to the extensive corrosion and

resultant release of lead and legionella in the City's drinking water system.

112. For example, it should have been obvious to the LAN and Veolia Entities- as

professed experts on water quality and treatment issues- that a small river in an urban environment,
such as the Flint River, would be contaminated by chlorides from salt used in road de-icing

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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.75 Page 30 of 53
't, operations during many Michigan winters. Indeed, in February 2004, the MDEQ, the U.S.
Geological Survey ("USGS,), and the City completed an assessment ofthe Flint River as a possible source of drinking water and concluded that it had a very high susceptibility to potential contamination sources. Moreover, a simple comparison ofthe chloride levels in the Flint River with that provided by the DWSD, Flint's priorwater source, should have quickly alerted LAN and Veolia to potentially serious corrosion issues as the Flint River contains about eight-times more chloride than the DWSD-supplied water. The Flint River water also had an extremely high chloride-tosulfate mass ratio ("CSMR") of 1.6. Normally, a CSMR ratio of greater than 0.5 is a cause for serious concern. Had the LAN or Veolia Entities investigated the chloride-to-sulfate ratio in the Flint River, as would be expected of an engineer of ordinary diligence, they would have immediately had reason to believe that Flint's CSMR posed serious conosion risks.
113. The City's inability to effectively treat E. coli with chlorine should have likewise alerted the LAN and Veolia Entities to the existence of corrosion. It is well established by governmental authorities and the scientific community that the inability to treat E. coli with chlorine is often caused by heavily corroded piping. According to a study published by the U.S. EP~, high E. coli concentrations are a product of corrosion, and the inability to treat E. coli with chlorine is caused by corroded pipes. Flint's inability to treat E. coli with moderate amounts of chlorine- and the resulting high TTHM concentrations - should have placed the LAN and Veolia Entities on notice that Flint's pipes were corroding and releasing lead and other materials into the drinking water supply. The uptick in report~ cases of Legionnaires' disease, reported during a press conference prio~ to the LAN and Veolia Entities' retention, should have put both on notice that Flint's water system exhibited signs ofcorrosion. Legionella, the bacteria that causes LegiolUlaires' disease, grows on the film on the inside ofpipes, which when stripped away by corrosion frees the
28

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.76 Page 31 of 53
/egionella into the drinking water system. Outbreaks of Legionnaires' disease ~e rare unless pipes have been stripped oftheir bio-film by wann, corrosive water-which is exactly what exists in the Flint River and water supply. Yet neither the LAN Entities nor the Veolia Entities drew a collllection between the outbreak and the cause of the outbreak. Nor for that matter, did they make any recommendations to treat the water to prevent or abate an outbreak.
114. In addition, it was also very well known in the scientific community that pipes, especially old municipal water service lines, contain lead and that corroded pipes leach lead into the drinking water supply. "Lead has been a challenge and a bane for water suppliers since historical times ... The numerous articles printed in l~ading scientific journals, in the United Kingdom and United States, in the late nineteenth century, documenting thousands of cases of lead poisoning caused by lead water pipes, have largely faded in the mist of history. These cases often resulted in death, paralysis, blindness, insanity, convulsions, miscarriages and still births." Dr. Colin Hayes et al., Best Practice Guide on th~ Control of Lead in Drinking Water, Foreword (J?r. Colin Hayes ed. 2010). As just one of hundreds of examples, a summer 2010 report by the Water Research Foundation stated: "Lead concentrations in tap water are strongly influenced by distribution system water chemistry. In response to changes in water chemistry, high lead concentrations can also be observed in systems with no previous history of a lead problem ..• Solubility and dissolution rates ofcorrosion products are affected by water chemistry parameters including pH, dissolved inorganic carbon, orthophosphate, and the concentration and type of disinfectant residual." The~e are the exact conditions that existed in Flinfs water supply.
115. Finally, just the color of Flint's water should have led any reasonable engineer to the conclusion that Flint's pipes were dangerously corroded. The source of "Flint's water discoloration was rust, a product ofsteel and lead corrosion. The presence ofrust in the water should
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.77 Page 32 of 53
have alerted LAN ~d Veolia that Flint's water was corroding its pipes, and that there was thus ·a danger that lead was leaching into the Flint water system.
G. Despite the Numerous Signs of the Growing Crisis, Defendants Failed to Act, and Concealed Known Dangers From the Plaintiffs 116. In January 2015, State officials met to discuss the ongoing threat to public health
posed by the /egionella bacteria in the Flint River water. The Governor and his staff, the Genesee Co. Health Department, and the MDHHS had already been aware for at least three months of the ongoing public health threat to the people of Flint, including the threat of Legionnaires' disease resulting from the use of the Flint River water, yet they had done nothing. The public health crisis was not addressed in any serious and/or non-frivolous way.
the 117. On January 13, 2015, Earley resigned his position as Emergency Manager and
Governor replaced him with Gerald Ambrose. 118. On January 21, 2105, State offi~ials ordered water coolers to be installed in
State buildings operating in Flint. State officials were concerned that this action, if it became widely known by the public, would reveal their dishonesty because they had been advising the residents of Flint that it was safe to drink the tap water and at the same time arranging for alternative water sources for the State employees who were working in Flint.
119. On January 27, 2015, Flint was placed on notice that the Genesee County Health Department ("GCHD") believed there was an association between the spike in Legionnaires' disease reports and the onset of the use of Flint River water. Again, Defendants did nothing about the impending health catastrophe.
120. On January 29, 2015, State officials recognized that the public health crisis was caused by the corrosion of the entire infrastructure of the Flint water system. No action was
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.78 Page 33 of 53
taken to warn the public ofthe health crisis or to correct the harm caused by the State's decis~on to switch from DWSD water to Flint River water.
121. On January 29, 2015, Sue McConnick, the Director ofDWSD, offereclArnbrose an opportunity to purchase DWSD water at attractive rates. DSWD's proposal include~ waiving the re-colUlection fee. This offer was rejected by Ambrose.
122. In January 2015, Flint home owner, LeeAnn Walters, called the EPA regarding water issues that she was experiencing at her Flint home. She infonned the EPA that she and her
I
family members were becoming physically ill from exposure to the Flint River water COll?-ing from her tap.
123. By the end of January 2015, the Governor's office was fully aware of the public health emergency caused by the rise in legionella bacteria found in the Flint River and launched a · cover-up ofthe public health crisis.
124. 0~ February 1~ 2015, the Governor was fully informed o~ the health crisis in Flint. Given the months of complaints from Flint water users that the water was di~colored, foul smellfug/tasting and making them visibly sick, the Governor knew that there was an imminent threat to the people of Flint. Yet, neither the Governor, nor State and local public officials, took corrective action.
125. On February l7, 2015, Flint water users staged public demonstrations demanding that Flint re~connect with DWSD. Once again Ambrose refused to restore Detroit water for Flint water users. State and local public offi~ials falsely insisted that the water was acceptab~e for use
and took no action.
126. On Februazy 26,2015, Jennifer Crooks of the EPA wrote an email to MDEQ and EPA representatives. Crooks noted that Walters complained of "black sediment in her water.'' She
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.79 Page 34 of 53
noted that tpe iron contamination was so high that the testing instrumentation could not measure it. Crooks wrote, ""But, because the iron levels were so high [Michael Glasgow, Flint Utilities Administrator], suggested testing for lead and copper. WOW! I! I Did he find the LEAD I 104 ppb. She has 2 children under the age of 3....Big worries here....I think Lead is a good indication ~at other contaminants are also present in the tap water that obviously were not present in the compliance samples taken at the plant. ..We also talked about Dr. Joan Rose from Michigan State being on the Flint Tech Advisory committee--would want to dive further into this...she and her family are also exhibiting the rashes when exposed to the water, and her daughter's hair,is falling out in clumps."
127. In a second email on February26, 2015, Crooks stated that Miguel Del Toral of the EPA is of the opinion that the "black sediment" in the Walters water was actually lead. She continued, ''Miguel is wondering ifFlint is feeding Phosphates. Flint must have Optimal Corrosion Control Treatment-is it phosphates? From a public health perspective, can we assume that the high lead levels in Mrs. Walters' neighborhood are isolated to just her area? Or are they more widespread?"
128. On February 27, 2015, Stephen Busch advised Del Toral that the City was using corrosion control. This statement was false and Busch knew it was false when he made this statement to the EPA.
129. On March 5, 2015, the Governor and officials in the Governor's office realized that they had a massive public health emergency which probably included widespread lead poisoning on their hands and began discussing distributing water filters to Flint water users. These public officials took no action to warn or othenvise protect Plaintiffs, and continued to conceal from them and the public the true nature, extent and severity ofthe public health crisis.
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130. By March 10, 2015, James Henry of the GCHD raised concerns that he was being stonewalled by the State and City in accessing public health information about the Legionnaires' disease outbreak in Genesee County. The concealment -of the public health emergency by City and State officials - Defendants herein - was shocking and unconscionable.
131. As of March 10, 2015, the Defendants knew that the extreme public health emergency involved lead poisoning, deadly legionella bacteria and a host of other ailments.
· 132. On March 25, 2015, Flint City Council voted to re-connect to Detroit's water system. Governor Snyder's appointed Emergency Manager, Gerald Ambrose, exacerbated the State-created danger by rejecting this vote of the Flint public officials.
133. On June 24, 2015, the aforementioned Del Toral Report warned of "High Lead Levels in Flint Michigan." On the 'following day, Del Toral wrote an internal email with respect to the elevated lead .in Flint :water at EPA stating:
"I understand that this is not a comfortable situation, but the State is complicit in this and the public has a right to know what they are doing because it is their children that are being hanned." Del Toral further warned that the failure to inform Flint water users ofthe elevated lead levels was "bordering on criminal neglect." 134. The Del Toral Report was shared with, among others, MDEQ's Chief of Office of Drinking Water and Municipal Assistance, Liane Shekter-Smith, MDEQ's Water Treatment Specialist, Patrick Cook, MDEQ's District Supervisor, Stephen Busch, and :MDEQ's Engineer assigned to District 11 (Genesee County), and Michael Prysby. 135. Nonetheless, State and local public officials failed to undertake any measures to effectively address any of the dangers, including lead poisoning, identified by Del Toral.
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.81 Page 36 of 53
136. On June 30, 2015, Mayor Walling notified EPA Region 5 Director, Dr. Susan Hedman ("Hedman") that Del Toral was speaking publicly about the Flint environmental crisis.
137. On July 2, 2015, Hedman advised Walling that he was given a preliminary draft and that it would be premature to draw any conclusions.
138. On July 10, 2015, MDEQ official Brad Wurfel, in an effort to conceal the public health crisis, appeared on public radio and advised listeners that Flint water was safe and that it was not causing "any broad problem" with lead leaching into residential water. Parents, worried about the lead poisoning of their children demanded answers from Wurfel. He told the concerned parents, "{l] et me stat:t here-anyone who is concerned about lead in the drinking water can relax. " Wurfel, at the time he made this statement, knew his statements were false and he deliberately misled the public about the seriousness of the crisis.
139. By July 2015, multiple agencies within the State of Michigan, including the Governor,.the Governor's Office and MDEQ, had actual notice ofhigh lead exposure and other dangers, including Legionnaires' ~isease, associated with Flint water.
140. On July 22, 2015, Governor Snyder's Chief of Staff, Dennis Muchmore, wrote to MDHHS Director Lyon and stated that the Plaintiffs' concerns regarding lead poisoning and other dangers were being ''blown off' by the Defendants.
141. On July 24, 2015, Wurfel continued to promote the cover-up of the health crisis. In response to the recognition that the Defendants were blatantly ignoring the concerns of Flint residents, he stated, "In terms ofnear-future issues, the bottom line is that residents of Flint do not need to worry about lead in their water supply, ~d DEQ's recent sampling does not indicate an imminent health threat from lead or copper."
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.82 Page 37 of 53
142. In a July 28,2015, email from MDHHS epidemiologist Cristin Larder to MDHHS employees Nancy Peeler and Patricia McKane, Larder identifies an increase in blood lead levels in Flint just after the switch to river water, and concludes only that the issue "warrant[s] further investigation."
143. On the same day, Nancy Peeler sent an e-mail admitting an uptick in children with elevated blood lead levels in Flint in July, August, and September 2014, but attributing it to seasonal variation.
144. MDHHS took no actions as outsiders began to discover and reveal Flint's lead problem. Instead, it withheld data and obstructed those researchers while actively attempting to refute their findings.
145. In August 2015, Professor Marc Edwards of Virginia Tech detennined that there was serious lead contamination of the Flint water system and stated that the people of Flint face a major public health emergency.
146. Wurfel, speaking for the State, immediately dismissed and discredited Edwards by stating that Edwards's team "only just arrived in town and (have) quickly proven the theory they set out to prove, and while the state appreciates academic participation in this discussion, offering broad, dire public health advice based on some quick testing could be seen as fanning political flames irresponsibly."
147. By late 2014 or early 2015, Lyon was aware from MDHHS data that there was a dramatic increase in the percentage of Flint children with elevated blood lead level readings from blood drawn during the second and third quarters of2014, and that Legionnaires' disea~e was on the rise during the same period oftime. Lyon was aware ofthis dangerous condition but did nothing to report the findings to the Plaintiffs or the public.
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.83 Page 38 of 53
148. Lyon knew that these elevated blood lead levels, and an increase of Legionnaires' disease found in its own database, correlated with the introduction of the corrosive Flint River water into the Flint water distribution system. Lyon did not order that any action be taken to warn
the public. 149. The increase in elevated blood lead levels in Flint's children, and Lyon's failure to
do anything to prevent further injury to the people of Flint, identifie~ yet another aspect of this unconscionable government-created health and public safety emergency. Lyon, aware of the elevated blood lead levels in Flint's children, failed to report the evidence to the MDEQ, Governor's Office, EPA or the Flint community. His concealment of this critical information increased the risk and exacerbated the danger.
150. Dr. Mona Hanna-Attisha, in the summer of2015, using data available to her from
Hurley Hospital, observed a similar spike in the percentage of Flint children with elevated blood
lead levels from blood drawn in the second and third quarter of 2014. She published her study in an effort to alert the community about the health risks associated with drinking Flint River water.
151. The Defendants and the MDHHS immediately accused Dr. Hanna-Attisha o~
providing false infonnation to the public. 152. In September 2015, the MDEQ continued to falsely assure the public that use of
Flint Water was safe and continued to deny the public health crisis at hand. For example, a a MDEQ
document entitled, "DEQ Frequently Asked Questions, Water Lead Levels in the City of Flint, September, 2015" which stated: "Are there other ways the city monitors for lead exposure? The
County Health Departments, overseen statewide by the Michigan Department of Health and Human Services, regularly monitors blood levels in children throughout Michigan communities. The leading cause oflead poisoning is exposure to lead paint. Blood lead level testing results for
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.84 Page 39 of 53
the 12-month period just after the City ofFlint changed its water source (May 2014- April2015)
showed no significant change in the pattern ofblood lead levels in Flint, compared to the previous three years. This data su~gests the recent change in water source by the City of Flint has not contributed to an increase in lead exposure throughout the community.'' (emphasis added).
153. In a September 11, 2015, e-mail to Linda Dykema and Kory Groestch of the MDHHS, Defendant Shekter-Smith wrote: "Since we last spoke, there's been an increase in the media regarding lead exposure. Any progress developing a proposal for a lead education campaign?
We got a number of legislative inquiries that we are responding to. It would be helpful to have
something more to say." DHHS's Bruneau responded to Groetsch: ''Told ya," and incredibly, includes a "smiley face, emoticon.
154. Groetsch then responds to Shekter-Smith that Bruneau has written only "the bones" of a health education and outreach plan.
155. The same day, Robert Scott, the data manager for the MDHHS Healthy Homes and Lead Prevention program, was e-mailed a copy of a grant proposal for Professor Edwards's study Edwards's grant proposal described a ''perfect storm" of "out of control" corrosion of city water pipes leading to "severe chemical/biological health risks for Flint residents." Scott forwarded the grant proposal to MDHHS employees Nancy Peeler, Karen Lishinski, and Wesley Priem, with the note"[w]hen Y.OU have a few minutes, you might want to take a look at it. Sounds like there might
be more to this than what we learned previously. Yikes!"
156. On September 22, 2015, MDHHS Environmental Public Health Director Lynda Dykema, emailed MDHHS' Geralyn. and Defendant Peeler, among others. She stated: "Here is a link to the VA Tech study re city of Flint drinking water... It appears that the researchers have completed testing of a lot of water samples and the results are significantly different than the city
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.85 Page 40 of 53
..
and DBQ data. It also appears that .they've held public meetings in Flint, resulting in concerns about the safety of the water that have arisen in the last few days.''
157. On the same day, Dr. Mona Hanna-Attisha requested from Robert Scott and others at MDHHS full state records on blood tests, likely to compare to her own data. She notes "[s]ince
we have been unable to obtain recent MCIR blood lead data for Flint kids in response to the lead in
water concerns, we looked at all the blood lead levels that were processed through Hurley Medical Center[.]'' She tells the MDHHS that despite being denied data access from the state, she has found "striking results."
158. On September 25,2015, Wurfel falsely advised media and the public that MDHHS officials have re-examined its blood lead level data and the MDHHS statistics do not show the same upward trend documented by Dr. Hanna~Attisha.
159. On September 28, 2015, Wurfel stated publically that the Flint water crisis was becoming "near-hysteria" because ofDr. Hanna-Attisha's report..He said that he wouldn't call her repo~ "irresponsible. I woQ].d call them unfortunate." Wurfel finished his remarks that day by falsely stating that "Flint's drinking water is safe in that it's meeting state and federal standards."
160. The same day Dr. Hanna-Attisha's results were released, Robert Scott emailed Nancy Peeler, noting that he had tried to "recreate Hurley's numbers,'' and says he sees "a difference between the two years, but not as much difference as they did." Despite the fact that this constitutes MDHHS's first internal recognition that their own methodology could have been wrong and that Flint children had been poisoned, Scott added "I'm sure this one is not for the public."
161. As this was going on, Professor Edwards forcefully requested blood lead data from Mr. Scott. In an email, the Professor notes that the State had failed to provide the records to Dr. Hanna-Attisha's team, and accusing the MDHHS of"raising...obstacles to sharing it with everyone
38

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.86 Page 41 of 53 ,,
who asks.,, Professor Edwards claims to have been requesting the data since August, and notes that he has sent Scott ten e-mails on the subject.
162. The next day, Scott drafted a remarkable response, but never sent it to Professor Edwards on the advice ofDefendant Peeler. Included in the would~be response: "I worked with you earlier this month to get data to you relatively quickly but did not manage to complete the process before I went on annual leave for several days. I neglected to inform you that I'd be away, and I apologize for not infonning you."
163. Despite the fact that Scott admitted to going on vacation and leaving an important task unfinished as a public health crisis unfolded, Peeler tells him to "apologize less."
164. The day after Dr. Hanna-Attisha releases her study, the City of Flint issues a health advisory, telling residents to flush pipes and install filters to prevent lead poisoning.
165. The same day, Robert Scott responded to an email from colleagues about Detroit Free Press interest in doing a lead story. At 12:16 p.m., Fre7 Press reporter Kristi Tanner sent an email to Angela Minicuci at MDHHS saying Tanner had looked at the lead increase in Flint as shown in DHS records between 2013-2014 and 2-14-2015 and Tanner is concluding that the increase "is statistically significant."
166. Scott writes to Minicuci: "The best I could say is something like this: 'While the trend for Michigan as a whole has shown a steady decrease in lead poisoning year by year, smaller areas such as the city of Flint have their bumps from year to year while still trending downward overall.'"
167. Nancy Peeler, also a party to the conversation, writes back to Scott and Minicuci: "My secret hope is that we can work in the fact that this pattern is similar to the recent past."
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.87 Page 42 of 53
168. · This conversation unfolded the very day after Scott told Peeler that his own review of the data showed increased post-switch lead levels, but that his fmdings w.ere not to be made public.
169. Peeler and Scott intentionally withheld infonnation that they had a duty to disclose to the public, and actively sought to hide the lead poisoning epidemic that they had previously failed to discover.
170. On September 29,2015, Wurfel referred to EPA Del Toral of the EPA as a "rogue employee."
171. Also on September29, 2015, Geralyn Lashere-mailed Defendants Peeler and Wells, Scott, and several others at MDHHS: "Is it possible to get the same type of data for just children under the age of six? So basically, the city of Flint kids ages six and under with the same type of approach as the attached chart you gave us last week?"
172. Linda Dykema responds to fellow MDHHS employees including Defendant Wells: "[i]t's bad enough to have a data war with outside entities, we absolutely cannot engage in competing data analyses within the Department, or, heaven forbid, in public releases."
173. Defendant Wells's only reply to that email was a single word: "Agree,'' showing MDHHS continuing efforts to mislead the public, protect itself, and discredit Dr. Hanna-Attisha.
174. The MDllliS and its employees were completely disinterested in the truth or finding out whether it may have made an error.
175. When Dr. Hanna-Attisha directly e-.mailed Defendant Wells with updated findings that isolated certain high risk areas of the city and showed that blood lead levels have ''more than tripled," Defendant Wells responded that the state was working to replicate Hanna- Attisha's analysis, and inquired about Dr. Hanna-Attisha's plans to take the infonnation public.
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.88 Page 43 of 53
176. While discouraging her.department to look further into Dr. Hanna..Attisha's findings and misleading Dr. Hanna..Attisha, Defendant Wells remained focused on a single task; saving face at the expense ofFlint's re$idents.
177. By late September 2015, reconnecting to the Detroit water system was the only reasonable option to protect the health and safety ofthe Flint water users. Yet the State deliberately chose not to proceed in this fashion. Instead, on or about October 2, 2015, State officials announced that the State would appoint a Flint Water Advisory Task Force and would provide water filters designed to eliminate the lead in the water to Flint water users.
178. On October 8, 2015, the Governor recognized that he could no longer pretend that the water from the Flint River was safe. He finally ordered Flint to re..connect with the Detroit water system which contained corrosion control chemicals.
179. The re..connect to DWSD took place on or about October 16, 2015. 180. Incredibly, and in blatant violation of state law, at all relevant times the state's ''top doctor," MDHHS chiefmedical executive Dr. Eden Wells was attending to her responsibilities part time while also working at the University ofMichigan. Dr. Wells did not become a full time state employee Wltil February 1, 2016, and her mandatory responsibilities at the state prior to that time may have involved as little as eight (8) hours per week. 181. Dr. Wells was the sole medical doctor working as an executive for the department. 182. Dr. Wells's predecessor, Dr. Gregory Holtzman, has noted that as a full time employee, he "kept quite busy." 183. Flint is currently in a State ofEmergency: Mayor Karen Weaver declared a State of Emergency on December 14, 2015. On January 4, 2016, the Genesee County Commissioners declared a State of Emergency. On January 5, 2016, Governor Snyder declared a State of
41

Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.89 Page 44 of 53
Emergency. On January 13, 2016, the Governor activated the Michigan National Guard to assist the people of Flint. On January 14, 2016, the Governor asked President Barak Obama and the Department ofHomeland Security, Federal Emergency Management Agency ("FEMA") to declare Flint a Major Disaster. On January 16,2016, FEMA issued an emergency declaration to assist the people ofFlint.
184. The relief efforts of State public officials have been ineffective, indeed often frivolous, in mitigating the devastation caused by its creation of the public health crisis. The ineffective relief efforts have prolon-ged the dangerous conditions and, in many cases, the failed mitigation efforts have further exacerbate4 the effects of the public health calamity created by the State.
H. Defendants' Misconduct Has Caused the Plaintiffs to Suffer Devastating Health Effects and Other Personal Injuries 185. As a result ofthe failure to properly treat water from the Flint River, corrosive water
was delivered throughout the Flint Water System. The water predictably corroded metal pipes, causing them to leach lead into the water. An estimated 15,000 ofFlint's 30,000 residential service lines are composed at least partially oflead. The exact number is presently unknown.
186. Lead's catastrophic effects are indisputable. !\ccording to ,the EPA, "[y]oung children, infants, and fetuses are particularly vulnerable to lead because the physical and behavioral effects of lead occur at lower exposure levels in children than in adults. A dose oflead that would have little effect on an adult can have a significant effect on a child. In children, low levels of exposure have been linked to damage to the central and peripheral nervous system, learning disabilities, shorter stature, impaired hearing, and impaired formation and function ofblood cells."
187. According to the World Health Organization, "lead affects children's brain development resulting in reduced intelligence quotient (IQ), behavioral changes such as shortening
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of attention span and increased antisocial behavior, and reduced educational attainment. Lead exposure also causes anemia, hypertension, renal impairment, immunotoxicity and toxicity to the reproductive organs. The neurological and behavioral effects oflead are believed to be irreversible."
188. Lead is so hannful that, according to the EPA, "ingestion oflead can cause seizures, coma and even death."
189. The effects of lead exposure are long lasting. The EPA has explained that, "[l]ead can accumulate in our bodies over time, where it is stored ip bones along with calcium. During pregnancy, lead is released from bones as maternal calcium and is used to help from the bones of the fetus. Lead can also cross the placental barrier exposing the fetus to lead. This can result in serious effects to the mother and her developing fetus, including: reduced growth of the fetus [and] premature birth."
190. Tragically, the damage from lead exposure to Flint's children includes diminished potential over the entire course of their lives. The World Health Organization states, "[t]hese costs are sometimes referred to as lost opportunity costs. Using a conservative estimate, the decrease in intelligence attractiwle to each 1 J.Lg/dl increase in blood lead level is 0.25 IQ points, and the decrement in lifetime economic productivity associated with lost IQ point is 2.4%. When exposure to lead is widespread in a society, the aggregate loss of intelligence (and thus economic productivity) can be substantial."
191. Notably, this estimate is conservative as it relates solely to lost earning potential and does not include costs related to special educational, medical, sociological, disability and occupational services, or long-tenn monitoring and treatment costs.
192. According to an analysis of the economic losses attributable to lead exposure in 2009, ''[t]l)e present value of Michigan's economic losses attributable to lead exposure in the 2009
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.91 Page 46 of 53
cohort of5 year-olds ranges from $3.19 billion (using U.S. blood lead levels) to $4.85 billion (using Michigan blood lead levels) per year in loss offuture lifetime earnings."
193. O~her researchers have estimated the econo~ic impact of childhood lead poisoning to be as high as $50.9 billion per year in lost economic productivity resulting from reduced cognitive potential from preventable childhood lead exposure.
194. As a direct and proximate result of Defendants' misconduct, Flint's children have suffered specific, measurable damages in the form oflost earning potential. They have also incurred damages in the form of required special educational, medical, sociological, occupational ~d disability services and related education assistance progr~s.
195. Lead is also hannful to adults. The EPA warns that "[a]dults exposed to lead can suffer from: Cardiovascular effects, increased blood pressure and incidence of hypertension, [d]ecreased kidney function, [and] [r]eproductiveproblems (in both men and women)." The World Health Organization explains that the direct medical costs of lead exposure inclu9e treatment for acute lead poisoning - typically chelation therapy - as well as the treatment of cardiovascular disease in adults who develop hypertension following lead exposure.
196. Given the long-lasting risks of lead exposure and the potential for lead sediment to be disturbed and re-mobilized into the water system, Plaintiffs will require regular medical and tap water testing and evaluation, at bare minimum, in accordance with goverrunent standards.
197. Additionally, as described more fully above, the water crisis in Flint caused an outbreak of Legionnaires' disease. As explained above, the presence of legionella was a direct and proximate result of the switch to the Flint River as a water source and related conduct. At least 87 Flint residents contracted Legionnaires' disease and at least nine died. Those residents who became infected with Legionnaires' disease suffered death, and for those who lived, incurred pain and
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suffering as well as substantial medical costs due to Defendants' conduct. At least one case of

Legionnaires' Disease occurred in 2016, even after the City's water supply was switched back to

the DWDS, indicated that the disease stiJl poses a risk to .the community.

198. In October, 2016, Flint and Michigan authorities determined that Flint was

experiencing an outbreak of the infectious bacterial disease called Shigellosis, which can cause

.

.

bloody diarrhea and fever. Shigellosis is caused by the Shigella bacteria, and its symptoms include

fever, abdominal pain and diarrhea, which can lead to dehydration. Since the water crisis, there has

been a steady increase of cases, especially in children. The youngest person diagnosed was 17

months old.

199. Finally, as a direct and proximate result of Defendants' conduct, Plaintiffs have

suffered extreme emotional distress.

I. Defendants' Misconduct Has Also Caused the Plaintiffs to Suffer Extensive Property Damage and Monetary Losses.

200. In addition to the devastating health effects and lost economic productivity caused

by lead exposure, Defendants' misconduct has caused significant property damage and monetary

losses.

201. The property damages sustained by Plaintiffs fall into three basic categories. First,

the Plaintiffs' pipes and appliances themselves have corroded, shortening their life span, and

causing further damage when they break. Second, the corroded pipes and appliances remain a

continuing source of lead and potentially legionella - thus, pipes and appliances must be replaced

or else remain a continuing source ofhannful exposure. Finally, the value ofPlaintiffs, real property

has been substantially diminished as a result of the continuing questionable safety of Flint's water

and existence of corroded pipes and appliances.

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202. Although the City has begun adding polyphosphate to its system to reduce the leaching of lead from its service lines, this is unlikely to render Flint's water safe because many of the pipes have become so corroded that not even phosphate will be able to fully encapsulate the surface ofthe pipes and prevent lead from leaching into the water supply.
203. The Plaintiffs' homes and properties have been affected in the same fashion. Even with the addition ofphosphate, their pipes and appliances will remain corroded until replaced, and continue to be a source of lead and potentially /egionella. Solubilized and particulate lead and legionella remain in portions of the piping system and appliances, and can become remobilized at any time, causing further damage and health effects.
204. The effect of corrosive water on residential and commercial piping and appliances is well understood. For example, a 2014 study by the Water Research Watershed Center stated: "[w]ith respect to the corrosion potential of YOUR drinking water, the primary concerns include the potential presence o~ TOXIC Metals, such as lead ~d copper; deterioration and damage to the household plumbing, and aesthetic problems such as: stained laundry, Qitter taste, and greenishblue stains around basins and drains."
205. The Water Research Watershed Center has further explained that, "The cost of corrosion can be expensive. Corrosion can impact you and your family's health, aesthetic quality of your water, waste money, and damage your household piping and fiXtures."
206. Not only does corrosion cause the "premature failure of household plumbing and plumbing fixtures," the Water Research Watershed Center has explained, corrosion also "decreases the efficiency ofhot water heaters and may cause premature failure to the heater."
207. On January 10, 2017, Marc Edwards, the principal scientistwho discovered the high lead concentration in Flint water, published "Flint Water Crisis Caused By Interropted Corrosion
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.94 Page 49 of 53
Control: Investigating "Ground Zero Home" in which he concluded that the lead in the homes originated in part from rust stripped by the corrosive water from galvanized pipes. Galvanized pipes are in people's homes. Although galvanized (zinc-coated) pipe is still considered to be a safe transport material for drinking water, there are some potential health concerns if the water supply is corrosive due to its acidic condition (low pH). These results establish that the pipes in the pipes and appliances in Flint homes and businesses need to be replaced.
208. Moreover, residents and property owners have already reported damage to major appliances such as dishwashers and washing machines following Flint's decision to switch water sources.
209. According to emails from Governor Snyder's office, the State estimates that replacing Residents' pipes alone could cost between $6,000 and $8,000 per household. Other estimates of those replacement costs are far higher. Obviously, the cost to replace pipes in a residential building with multiple units will be far higher, costing tens and hundreds of thousands of dollars.
21 0. Corroded pipes not only present a continuing health threat, they risk further damage to one's property because corrosion can result in deep pits in the pipe or tank walls that can eventually break, causing substantial water damage to homes and businesses.
211. Although the City has stated it intends to begin replacing some City-owned pipes, this is far from sufficient to render Flint's water safe. Sergio Kapusta, a fellow at NACE International, an industry organization that develops corrosion prevention and control standards in Houston, has explained that "changing all the mains in the city will not really solve the problem for the homeowners" because the lead piping in these homes probably has been severely compromised. "The corrosion is not going away. It's still there."
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212. Plaintiffs have been left to pay for the damage caused by Defendants. This has proven nearly impossible as many of the City's residents survive on vecy little money. To make matters worse, theWashington Post has reported that, "many in Flint say banks are refusing to offer refinancing that could :free up money to pay for the retrofitting, and that the costs are not covered by insurance. The crisis has created a perfect storm to strip their houses of their remaining value, they say."
213. Moreover, the problems associated with Flint's water have had and are having a significant iinpact on residential and commercial property values and rental rates in the City. As Daniel Jacobs, an executive with Michigan Mutual explained, "[t]he tragedy is an already depressed community is no'Y likely to see housing values plummet not only because of the hazardous water, but because folks cannot obtain financing.,
214. Certain banks and mortgage companies have refused to make loans, unless the borrower establishes that its water is potable. A Wells Fargo & Co. spokeswoman said it is reviewing government lending guidelines: "[u]ntil [water] testing and potability is affirmed, it will be difficult to lend," said the spokeswoman, who said such difficulties would apply to all lenders. Representatives from Bank of America and J.P. Morgan similarly have acknowledged requiring verification of potable water to provide financing to Flint residents. Lenders claim their hands are tied. As the Federal Housing Administration, which backs loans to less-creditworthy borrowers, explained, government regulations require "a continuing and sufficient supply of safe and potable water'' to provide home financing.
215. This creates a catch-22. Despite having switched back to receiving its water from DWSD, the current extent of corrosion in Flint renders the water unsafe because the pipes and appliances will rem&n corroded and sources of lead until they are replaced. However, Plaintiffs,
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..
220. As a direct and proximate result of the unconstitutional acts of Defendants, acting through the Governor's office, and/or the Michigan Department of Environmental Quality ("MDEQ11), and/or the Michigan Department of Health and Human Services ( "MDHHS"), and its ofticial policymakers, and/or Emergency Managers Darnell Early and Jerry Ambrose, all acting in their official capacities and pursuant to customs, policies and/or practices, as alleged in this . Complaint, Plaintiffs have experienced and will continue to experience into the future:
(a) Serious and in some cases life threatening and irreversible bodily injury; and (b) Substantial economic losses in the nature ofmedical expenses, lost wages. 221. Plaintiffs are entitled to an award ofnoneconomic damages in the nature ofpain and suffering, embarrassment, outrage, mental anguish, fear and mortification, and stress related physical symptoms such as sleepiness, gastro-intestinal discomfort, neuropathy, dennatological disorders, hair loss and other related symptoms. 222. Plain~s have experienced property damage to their homes and places of business in the nature of lost property value and seek damages to remediate the pennanent damage caused by the use of corrosive water without proper anti-corrosive treatment.
COUNT II: VIOLATiON. OF ARTICLE 10 § 2 UNCONSTITUTIONAL TAKING OF.PROPERTY PLAINTIFF PROPERTY OWNERS AND USERS
AS AGAINST ALL DEFENDANTS 223. Plaintiffs hereby repeat, reallege, and reiterate each and every allegation in the preceding paragraphs as if fully restated herein. 224. Article 10,.§ 2 of the Michigan Constitution requires that "[p]rivate property shall not be taken for public use without just compensation."
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225. This claim is brought by Plaintiffs, who had water service lines susceptible to damage caused by corrosive water and which were rendered unsafe even after the corrosive water was discontinued.
226. The actions ofthe Defendants were a substantial cause ofthe decline ofthe Plaintiffs' property values and ordinary us.es of their property.
227. These Defendants deliberately substituted safe drinking water with a known toxic alternative and their continued decision not to use anti-corrosive agents to prevent the foreseeable deterioration and/or destruction of the Plaintiffs' water service lines, thereby rendered them unsafe for future use even after the corrosive water was discontinued.
228. The Defendants took affinnative actions that directly targeted those properties with water service lines susceptible to damage caused by corrosive water, thereby rendering those properties unsafe, even after the corrosive water was discontinued.
229. As direct and proximate result of Defendants' unconstitutional taking of Plaintiffs' properties, Plaintiffs have experienced substantial loss of value and ordinary use and enjoyment of their properties.
230. The injury to Plaintiffs, as property owners, is unique or special because this group of Plaintiffs had water service lines susceptible to damage by corrosive water and which were rendered unsafe even after the corrosive water was discontinued.
PRAYER FOR RELIEF Plaintiffs request the following relief from the court:
a. An order declaring the conduct of Defendants unconstitutional; b. An injunctive order to remediate the hann caused by the Defendants'
unconstitutional conduct including, but not limited to: repairs of private property and establishment of medical monitoring to provide health care and other appropriate services to Plaintiffs for a period of time deemed appropriate by the Court;
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Case 5:18-cv-10699-JEL-MKM ECF No. 1-2 filed 02/28/18 PageID.98 Page 53 of 53
c. Appointment of a monitor who will assist in the development of remedial plans including, but not limited to: early education, education intervention programs, criminal and juvenile justice evaluations;
d. An order for an awar-d of compensatory damages;
e. An order for ati award of punitive damages;
f. An order for equitable relief; g. An order for pre-judgment and post-judgment interest; h. An orderfor an award ofreasonable attorney's fees and litigation expenses;
and i. An order for all such other relief the court deems equitable.

Dated November 1, 2017

Respectfully submitted,
.)~
Xl}rson Oliver (P55020) Oliver Law Group P.C. 363 West Big Beaver Road, Suite 200 Troy, Michigan 48084 (248) 327-6556 ' aoliver@oliverlg.com

52

 
 Case 5:18-cv-10699-JEL-MKM ECF No. 31 filed 04/17/18 PageID.707 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

In re Flint Water Cases.

Judith E. Levy

United States District Judge

________________________________/

This Order Relates To:

Brown v. Snyder Case No. 18-cv-10699

________________________________/

ORDER VACATING ORDER TO SHOW CAUSE AND REMANDING CASE TO THE MICHIGAN COURT OF CLAIMS

On March 29, 2018, the Court issued an order partially remanding

the State defendants in this case and ordering the removing MDEQ

defendants to show cause why this case should not be remanded to the

Michigan Court of Claims for lack of subject-matter jurisdiction, as

federal-officer removal jurisdiction does not exist in this case, and a

substantial federal question did not appear on the face of the complaint.

(Dkt. 9.) On April 13, 2018, the MDEQ defendants responded to the

order to show cause. (Dkt. 29.)

As set forth in the order to show cause, the United States Court of

Appeals for the Sixth Circuit has determined that the MDEQ

Case 5:18-cv-10699-JEL-MKM ECF No. 31 filed 04/17/18 PageID.708 Page 2 of 3
defendants are not federal officers within the meaning of 28 U.S.C. § 1442 for lawsuits arising from the Flint water contamination crisis, and cannot remove cases from state court to federal court based on that statutory provision. Mays v. City of Flint, Mich., 871 F.3d 437, 449 (6th Cir. 2017). On April 16, 2018, the United States Supreme Court denied certiorari as to an appeal of that holding. Also, the Sixth Circuit issued Nappier v. Snyder immediately after the Supreme Court’s denial of certiorari, affirming Mays. Nappier, Case No. 17-1401, Doc. 42 (April 16, 2018). Accordingly, removal based on federal-officer removal jurisdiction was improper.
The MDEQ defendants also premised removal of this case on substantial federal question jurisdiction under 28 U.S.C. § 1441. In Nappier, the Sixth Circuit also held that removal based solely on substantial federal question jurisdiction must be unanimous. Nappier, Doc. 42-2 at 6 n.2. Removal in this case was not unanimous (see Dkt. 7), and several defendants have already had claims against them remanded to the Michigan Court of Claims. (See Dkt. 9.)
It is hereby ordered that: The order to show cause is VACATED; and
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Case 5:18-cv-10699-JEL-MKM ECF No. 31 filed 04/17/18 PageID.709 Page 3 of 3

This case is REMANDED to the Michigan Court of Claims.

IT IS SO ORDERED.

Dated: April 17, 2018 Ann Arbor, Michigan

s/Judith E. Levy JUDITH E. LEVY United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court’s ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on April 17, 2018.

s/Shawna Burns SHAWNA BURNS Case Manager

3

 
 STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

CASE
Judicial Officer MURRAY, CHRISTOPHER
PARTICIPANTS
PLAINTIFF 1 PLAINTIFF 2 PLAINTIFF 3 PLAINTIFF 4 PLAINTIFF 5 DEFENDANT 1 DEFENDANT 2 DEFENDANT 3 DEFENDANT 4 DEFENDANT 5 DEFENDANT 6 DEFENDANT 7 DEFENDANT 8 DEFENDANT 9 DEFENDANT 10 DEFENDANT 11

Date Filed

Adjudication

11/2/17 STAY OF PROCEEDINGS 7/20/18

BROWN, BRENDA ATTY: ALYSON OLIVER # 55020 PRIMARY RETAINED WEBBER, KERI ATTY: ALYSON OLIVER # 55020 PRIMARY RETAINED WEBBER, MICHAEL ATTY: ALYSON OLIVER # 55020 PRIMARY RETAINED WEBBER, STEPHANIE ATTY: ALYSON OLIVER # 55020 PRIMARY RETAINED WEBBER, KERI ATTY: ALYSON OLIVER # 55020 PRIMARY RETAINED SNYDER, RICK ATTY: NATHAN GAMBILL # 75506 PRIMARY RETAINED STATE OF MICHIGAN ATTY: NATHAN GAMBILL # 75506 PRIMARY RETAINED DEPARTMENT OF ENVIRONMENTAL QUALITY ATTY: NATHAN GAMBILL # 75506 PRIMARY RETAINED DEPARTMENT OF HEALTH AND HUMAN SERVICES ATTY: NATHAN GAMBILL # 75506 PRIMARY RETAINED WYANT, DANIEL ATTY: MICHAEL JOHN PATTWELL # 72419 PRIMARY RETAINED LYON, NICK ATTY: NATHAN GAMBILL # 75506 PRIMARY RETAINED DILLON, ANDY ATTY: NATHAN GAMBILL # 75506 PRIMARY RETAINED SHEKTER-SMITH, LIANE ATTY: THADDEUS E. MORGAN # 47394 PRIMARY RETAINED ROSENTHAL, ADAM ATTY: JAMES W. BURDICK # 11397 PRIMARY RETAINED BUSCH, STEPHEN ATTY: PHILIP A. GRASHOFF JR # 14279 PRIMARY RETAINED COOK, PATRICK ATTY: CHARLES E. BARBIERI # 31793 PRIMARY RETAINED

Public 12/1/2019 3:02:04 PM Page: 1 of 20
Status ADJUDICATED
FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17 FILED: 11/2/17

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

DEFENDANT 12
DEFENDANT 13 DEFENDANT 14 INACTIVE AS OF 5/23/18 DEFENDANT 15 DEFENDANT 16 DEFENDANT 17 DEFENDANT 18 DEFENDANT 19 DEFENDANT 20

PRYSBY, MICHAEL
ATTY: CHARLES E. BARBIERI # 31793 PRIMARY RETAINED WURFEL, BRADLEY ATTY: MICHAEL JOHN PATTWELL # 72419 PRIMARY RETAINED WRIGHT, JEFF
KURTZ, EDWARD ATTY: PATRIC A. PARKER # 30486 PRIMARY RETAINED EARLEY, DARNELL ATTY: TODD R. PERKINS # 55623 PRIMARY RETAINED AMBROSE, GERALD ATTY: BARRY A. WOLF # 40709 PRIMARY RETAINED WELLS, EDEN ATTY: NATHAN GAMBILL # 75506 PRIMARY RETAINED PEELER, NANCY ATTY: MICHAEL S. CAFFERTY # 36613 PRIMARY RETAINED SCOTT, ROBERT ATTY: MARY CHARTIER-MITTENDORF # 65327 PRIMARY RETAINED

RECEIVABLES/PAYMENTS
CASE PTF 1 BRENDA BROWN DEF 1 RICK SNYDER DEF 5 DANIEL WYANT DEF 10 STEPHEN BUSCH DEF 11 PATRICK COOK DEF 13 BRADLEY WURFEL DEF 16 DARNELL EARLEY

Assessed $20.00
Assessed $275.00
Assessed $45.00
Assessed $80.00
Assessed $20.00
Assessed $40.00
Assessed $40.00
Assessed $40.00

Paid/Adjusted $20.00
Paid/Adjusted $275.00
Paid/Adjusted $45.00
Paid/Adjusted $80.00
Paid/Adjusted $20.00
Paid/Adjusted $40.00
Paid/Adjusted $40.00
Paid/Adjusted $40.00

Public 12/1/2019 3:02:04 PM Page: 2 of 20
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FILED: 11/2/17
FILED: 11/2/17 FILED: 11/2/17
FILED: 11/2/17
FILED: 11/2/17
FILED: 11/2/17
FILED: 11/2/17
FILED: 11/2/17

Balance Balance Balance Balance Balance Balance Balance Balance

$0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 3 of 20

DEF 19 NANCY PEELER
DEF 20 ROBERT SCOTT
CHRONOLOGICAL LIST OF ACTIVITIES

Assessed $20.00
Assessed $20.00

Paid/Adjusted $20.00
Paid/Adjusted $20.00

Activity Date

11/2/17

SUMMONS AND COMPLAINT

Activity

$175.00

11/2/17 11/2/17 11/2/17 11/2/17 11/2/17
11/3/17
11/3/17

PTF 1 PTF 2 PTF 3 PTF 4 PTF 5 DEF 1 DEF 2 DEF 3 DEF 4 DEF 5 DEF 6 DEF 7 DEF 8 DEF 9 DEF 10 DEF 11 DEF 12 DEF 13 DEF 14 DEF 15 DEF 16 DEF 17 DEF 18 DEF 19 DEF 20 JUDICIAL OFFICER ASSIGNED TO STEPHENS, CYNTHIA DIANE 28417 JUDICIAL OFFICER REASSIGNED FROM STEPHENS, CYNTHIA DIANE 28417 RECEIVABLE ELECTRONIC FILING SYSTEM FEE RECEIVABLE FILING FEE PAYMENT RECEIPT NUMBER: COC-LAN.0002412 METHOD: CHECK $175.00 ORDER REGARDING REASSIGNMENT [MCR 8.111(D)] TALBOT, MICHAEL 21245 JUDICIAL OFFICER ASSIGNED TO MURRAY, CHRISTOPHER M. 43849

$25.00 $150.00 $175.00

Balance Balance

$0.00 $0.00

User

Entry Date

mmla mmla

11/2/17 11/2/17

mmla amd
mmla mmla mmla

11/3/17 11/3/17 11/2/17 11/2/17 11/2/17

amd

11/3/17

amd

11/3/17

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 4 of 20

Activity Date

Activity

1/16/18

ORDER APPOINTING FACILITATIVE MEDIATORS PURSUANT TO E.D. MICHIGAN LOCAL R. 16.4 (SIGNED BY U.S. DISTRICT JUDGE JUDITH E. LEVY)

1/19/18

MOTION FOR SECOND SUMMONS AND PROPOSED ORDER

1/19/18 1/23/18 1/26/18 1/30/18 2/2/18
2/2/18
2/12/18

PTF 1 PTF 2 PTF 3 PTF 4 PTF 5 RECEIVABLE MOTION FEE PAYMENT RECEIPT NUMBER: COC-LAN.0002552 METHOD: CHECK $20.00 ORDER SUMMONS ISSUED ACKNOWLEDGMENT OF SERVICE DEF 1 DEF 2 DEF 3 DEF 4 DEF 6 DEF 7 DEF 18 ACKNOWLEDGMENT OF SERVICE DEF 5 DEF 8 DEF 9 DEF 10 DEF 11 DEF 12 DEF 13 DEF 19 DEF 20 STIPULATION TO EXTEND DEADLINE FOR CERTAIN DEFENDANTS TO ANSWER OR OTHERWISE RESPOND TO THE COMPLAINT AND PROPOSED ORDER PTF 1 PTF 2 PTF 3 PTF 4 PTF 5 DEF 5 DEF 8 DEF 9 DEF 10

$20.00

User

Entry Date

amd

4/13/18

amd

4/13/18

mmla mmla

1/23/18 1/23/18

$20.00 $20.00

mmla mmla

1/23/18 1/23/18

amd mmla mmla

1/26/18 1/30/18
2/6/18

mmla

2/6/18

mmla

2/12/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 5 of 20

Activity Date DEF 11

Activity

DEF 12

DEF 13

DEF 19

DEF 20

2/14/18

ORDER TO EXTEND DEADLINE FOR CERTAIN DEFENDANTS TO ANSWER OR OTHERWISE RESPOND TO THE COMPLAINT
DEF 5

DEF 8

DEF 9

DEF 10

DEF 11

DEF 12

DEF 13

DEF 19

DEF 20

2/14/18

MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(7) AND BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED)
DEF 1

DEF 2

DEF 3

DEF 4

DEF 6

DEF 7

DEF 18

2/14/18

RECEIVABLE MOTION FEE

2/14/18

MOTION TO REQUEST AN EXTENSION OF THE PAGE LIMIT ON THE STATE DEFENDANTS' MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(7)
DEF 1

DEF 2

DEF 3

DEF 4

DEF 6

DEF 7

DEF 18

2/14/18

PROOF OF SERVICE

2/15/18

DEF 1 DEF 2 DEF 3 DEF 4 DEF 6 DEF 7 DEF 18 APPEARANCE

User

Entry Date

amd

2/14/18

amd 12/19/18

$20.00

mmla mmla

2/14/18 5/30/18

$20.00

mmla
mmla mmla

2/14/18
2/14/18 5/30/18

mmla amd

2/14/18 12/19/18

mmla amd

2/16/18 12/19/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

Activity Date DEF 5

DEF 13

2/20/18

APPEARANCE OF THADDEUS MORGAN

Activity

2/20/18 2/20/18 2/21/18 3/2/18 3/2/18
3/2/18

DEF 8 APPEARANCE OF MICHAEL H. PERRY DEF 8 APPEARANCE OF JAY M. BERGER DEF 5 DEF 13 ORDER GRANTING THE EXTENSION OF THE PAGE LIMIT ON THE STATE DEFENDANTS' MOTION FOR SUMMARY DISPOSITION APPEARANCE DEF 9 DEF 11 DEF 12 NOTICE OF FILING JOINT REMOVAL DEF 5 DEF 8 DEF 9 DEF 10 DEF 11 DEF 12 DEF 13 DEF 19 CLOSE CASE STATUS DEF 1 RICK SNYDER DEF 2 STATE OF MICHIGAN DEF 3 DEPARTMENT OF ENVIRONMENTAL QUALITY DEF 4 DEPARTMENT OF HEALTH AND HUMAN SERVICES DEF 5 DANIEL WYANT DEF 6 NICK LYON DEF 7 ANDY DILLON DEF 8 LIANE SHEKTER-SMITH DEF 9 ADAM ROSENTHAL DEF 10 STEPHEN BUSCH DEF 11 PATRICK COOK DEF 12 MICHAEL PRYSBY DEF 13 BRADLEY WURFEL DEF 14 JEFF WRIGHT DEF 15 EDWARD KURTZ DEF 16 DARNELL EARLEY DEF 17 GERALD AMBROSE DEF 18 EDEN WELLS DEF 19 NANCY PEELER

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 6 of 20

User

Entry Date

mmla mmla

2/20/18 2/20/18

mmla

2/20/18

mmla

2/20/18

amd amd
mmla

2/21/18 12/19/18
3/2/18

mmla

3/2/18

mmla

3/2/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Activity Date DEF 20 ROBERT SCOTT

Activity

DISPOSITION: NO CAUSE FOR ACTION

3/2/18

COMMENT

Certified copy of case file mailed on this date to:

3/29/18
4/3/18
4/3/18 4/4/18 4/4/18 4/4/18 4/4/18

United States District Court for the Eastern District of Michigan Clerk's Office Theodore Levin U.S. Courthouse 231 W. Lafayette Blvd., Room 564 Detroit, MI 48226 ORDER TO SHOW CAUSE WHY THIS CASE SHOULD NOT BE REMANDED FOR LACK OF SUBJECT-MATTER JURISDICTION DEF 1 DEF 2 DEF 3 DEF 4 DEF 6 DEF 18 ORDER GRANTING STIPULATION TO REMAND ALL CLAIMS AGAINST EMERGENCY MANAGER DEFENDANTS TO THE MICHIGAN COURT OF CLAIMS DEF 15 DEF 16 DEF 17 STIPULATION TO REMAND ALL CLAIMS AGAINST EMERGENCY MANAGER DEFENDANTS (AMBROSE, KURTZ, AND EARLEY) PUBLIC DOCKET FOR U.S. DISTRICT COURT EASTERN DISTRICT OF MICHIGAN CASE # 5:18-CV-10699-JEL-MKM NOTICE OF PARTIAL REMAND FROM U.S. DISTRICT COURT OPEN CASE STATUS SET ASIDE DISPOSITION DEF 1 RICK SNYDER DEF 2 STATE OF MICHIGAN DEF 3 DEPARTMENT OF ENVIRONMENTAL QUALITY DEF 4 DEPARTMENT OF HEALTH AND HUMAN SERVICES DEF 5 DANIEL WYANT DEF 6 NICK LYON DEF 7 ANDY DILLON DEF 8 LIANE SHEKTER-SMITH DEF 9 ADAM ROSENTHAL DEF 10 STEPHEN BUSCH DEF 11 PATRICK COOK DEF 12 MICHAEL PRYSBY DEF 13 BRADLEY WURFEL DEF 14 JEFF WRIGHT DEF 15 EDWARD KURTZ DEF 16 DARNELL EARLEY DEF 17 GERALD AMBROSE

Public 12/1/2019 3:02:04 PM Page: 7 of 20

User

Entry Date

mmla

3/2/18

mmla amd

4/4/18 12/19/18

mmla

4/9/18

amd amd mmla
mmla mmla mmla

4/13/18 4/13/18
4/4/18
4/4/18 4/4/18 4/4/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 8 of 20

Activity Date DEF 18 EDEN WELLS

Activity

DEF 19 NANCY PEELER

DEF 20 ROBERT SCOTT

4/6/18 4/9/18

ORDER REGARDING STATE DEFENDANTS' MOTION FOR SUMMARY DISPOSITION
NOTICE OF PARTIAL REMAND FROM THE U.S. DISTRICT COURT

4/9/18 4/12/18

PUBLIC DOCKET FOR U.S. DISTRICT COURT EASTERN DISTRICT OF MICHIGAN CASE #5:18-CV-10699-JEL-MKM
ORDER MEDIATION

4/13/18 4/17/18

ORDER GRANTING STIPULATION ALLOWING WITHDRAWAL OF COUNSEL BY ADAM ROSENTHAL (FILED IN U.S. DISTRICT COURT)
STIPULATION TO EXTEND TIME FOR PLAINTIFF TO RESPOND TO CERTAIN DEFENDANT'S MOTION FOR SUMMARY DISPOSITION AND PROPOSED ORDER
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

DEF 1

DEF 2

DEF 3

DEF 4

DEF 6

DEF 7

DEF 18

4/17/18 4/20/18 4/20/18 4/23/18 4/23/18

ORDER VACATING ORDER TO SHOW CAUSE AND REMANDING CASE TO THE MICHIGAN COURT OF CLAIMS
NOTICE OF REMAND FROM THE U.S. DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
PUBLIC DOCKET FOR U.S. DISTRICT COURT EASTERN DISTRICT OF MICHIGAN CASE #5:18-CV-10699-JEL-MKM
ORDER EXTENDING TIME PERIOD FOR PLAINTIFF TO RESPOND TO CERTAIN DEFENDANT'S MOTION FOR SUMMARY DISPOSITION
PAYMENT

RECEIPT NUMBER: COC-LAN.0002753

METHOD: ELECTRONIC FUND TRANSFER $20.00

5/4/18

RESPONSE TO STATE DEFENDANT'S MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(7) (ORAL ARGUMENT REQUESTED)
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

5/9/18

MOTION FOR SUMMARY DISPOSITION AND BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED) [DEFENDANT BRADLEY WURFEL]
DEF 13

5/9/18

RECEIVABLE MOTION FEE

5/9/18

PAYMENT

User

Entry Date

amd
mmla mmla
amd mmla
mmla

4/6/18
4/9/18 4/9/18
4/12/18 5/21/18
4/19/18

$20.00

mmla
mmla amd
mmla amd amd
mlh

4/20/18
4/20/18 12/19/18
4/20/18 12/19/18
4/23/18
4/23/18

mmla

5/8/18

$20.00
$20.00 $20.00

mmla mmla
mmla mmla

5/9/18 5/9/18
5/9/18 5/9/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 9 of 20

Activity Date RECEIPT NUMBER: COC-LAN.0002901

Activity

METHOD: CHECK $20.00

5/9/18

MOTION FOR SUMMARY DISPOSITION AND BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED) [DEFENDANT DANIEL WYANT]
DEF 5

5/9/18

RECEIVABLE MOTION FEE

5/9/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0002902

METHOD: CHECK $20.00

5/11/18

MOTION FOR SUMMARY DISPOSITION AND BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED)
DEF 16

DEF 17

5/11/18

RECEIVABLE MOTION FEE

5/11/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0002910

METHOD: CHECK $20.00

5/15/18

MOTION FOR SUMMARY DISPOSITION WITH BRIEF IN SUPPORT

5/15/18 5/15/18
5/15/18

DEF 8 DEF 10 DEF 11 DEF 12 RECEIVABLE MOTION FEE PAYMENT RECEIPT NUMBER: COC-LAN.0002914 METHOD: CHECK $20.00 MOTION FOR SUMMARY DISPOSITION AND BRIEF IN SUPPORT

5/15/18 5/15/18
5/16/18

DEF 20 RECEIVABLE MOTION FEE PAYMENT RECEIPT NUMBER: COC-LAN.0002915 METHOD: CHECK $20.00 PROPOSED STIPULATED ORDER PTF 1 PTF 2 PTF 3 PTF 4 PTF 5 DEF 1 DEF 2 DEF 3 DEF 4 DEF 18

User

Entry Date

$20.00
$20.00 $20.00

mmla mmla
mmla mmla

5/9/18 5/9/18
5/9/18 5/9/18

$20.00

mmla mmla

5/11/18 5/11/18

$20.00 $20.00

mmla mmla

5/11/18 5/11/18

$20.00

amd

5/15/18

amd

5/15/18

$20.00 $20.00

amd

5/15/18

amd

5/15/18

$20.00
$20.00 $20.00

mmla mmla
mmla mmla

5/15/18 5/15/18
5/15/18 5/15/18

mmla

5/16/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 10 of 20

Activity Date

Activity

5/18/18

AMENDED - MOTION FOR SUMMARY DISPOSITION AND BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED)

DEF 16

DEF 17

5/18/18

STIPULATION TO AMEND FORMER EMERGENCY MANAGERS DARNELL EARLEY AND GERALD AMBROSE'S MOTION FOR SUMMARY DISPOSITION
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

DEF 16

DEF 17

5/21/18

PROPOSED STIPULATED ORDER ALLOWING FOR E-MAIL SERVICE

PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

DEF 1

DEF 2

DEF 3

DEF 4

DEF 5

DEF 6

DEF 7

DEF 8

DEF 9

DEF 10

DEF 11

DEF 12

DEF 13

DEF 15

DEF 16

DEF 17

DEF 18

DEF 19

DEF 20

5/21/18

STIPULATED ORDER

5/21/18 5/21/18

MOTION FOR SUMMARY DISPOSITION AND JOINDER IN SUMMARY DISPOSITION MOTION FILED BY CO-DEFENDANTS WITH BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED)
DEF 19
RECEIVABLE MOTION FEE

User

Entry Date

mmla

5/18/18

mmla

5/18/18

mmla

5/21/18

$20.00 $20.00

amd amd
mmla mmla

5/21/18 5/21/18
5/24/18 5/30/18

mmla

5/24/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 11 of 20

Activity Date

5/22/18

ORDER ALLOWING E-MAIL SERVICE

Activity

5/22/18 5/23/18

ORDER GRANTING THE AMENDMENT OF DEFENDANTS EARLEY AND AMBROSE'S MOTION FOR SUMMARY DISPOSITION
DISMISSAL, NON-SERVICE/NO PROGRESS PURSUANT TO MCR 2.102(E)

DEF 14

5/24/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0002937

METHOD: CHECK $20.00

5/25/18

REPLY BRIEF TO PLAINTIFFS' 5/4/18 RESPONSE TO 2/14/18 MOTION FOR SUMMARY DISPOSITION
DEF 1

DEF 2

DEF 3

DEF 4

DEF 6

DEF 7

DEF 18

6/4/18

NOTICE OF DEFENDANT ADAM ROSENTHAL'S JOINDER IN MDEQ EMPLOYEE DEFENDANTS' 5/15/18 MOTION FOR SUMMARY DISPOSITION
DEF 9

6/7/18

NOTICE OF SUBMISSION OF ORDER PURSUANT TO MCR 2.602(B) AND PROPOSED ORDER [DEFENDANT DANIEL WYANT]
DEF 5

6/7/18

NOTICE OF SUBMISSION OF ORDER PURSUANT TO MCR 2.602(B) AND PROPOSED ORDER [DEFENDANT BRADLEY WURFEL]
DEF 13

6/7/18

OBJECTION TO ENTRY OF PROPOSED ORDER AND BRIEF IN SUPPORT

PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

6/11/18

NOTICE OF SUBMISSION OF ORDER PURSUANT TO MCR 2.602(B) AND PROPOSED ORDER GRANTING MDEQ DEFENDASNTS' 5/15/18 MOTION FOR SUMMARY DISPOSITION
DEF 8

DEF 10

DEF 11

DEF 12

6/11/18

MOTION FOR BRIEFING SCHEDULE AND BRIEF IN SUPPORT

6/11/18

PTF 1 PTF 2 PTF 3 PTF 4 PTF 5 RECEIVABLE MOTION FEE

User

Entry Date

amd

5/22/18

amd

5/22/18

amd

5/23/18

$20.00

mmla

5/24/18

mmla

5/25/18

mmla mmla

6/5/18 1/7/19

mmla

6/7/18

mmla

6/7/18

mmla

6/11/18

mmla mmla

6/11/18 6/11/18

$20.00

mmla mmla

6/11/18 6/11/18

$20.00

mmla

6/11/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 12 of 20

Activity Date

6/11/18

PAYMENT

Activity

RECEIPT NUMBER: COC-LAN.0002968

METHOD: CHECK $20.00

6/18/18 6/21/18

ORDER REGARDING PENDING MOTIONS FOR SUMMARY DISPOSITION AND NOTICES OF SUBMISSION OF ORDERS PURSUANT TO MCR 2.602 (B)
RESPONSE TO 5/17/18 AMENDMENTS OF DARNELL EARLEY AND GERALD AMBROSE'S MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(7) & 2.116(C)(8) (ORAL ARGUMENT REQUESTED)
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

6/21/18

MOTION TO REQUEST AN EXTENSION OF THE PAGE LIMIT ON PLAINTIFF'S RESPONSE TO DEFENDANT AMBROSE AND EARLEY MOTION FOR SUMMARY DISPOSITION
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

6/21/18

RECEIVABLE MOTION FEE

6/21/18

CERTIFICATE OF SERVICE

6/22/18
6/25/18 6/25/18

PTF 1 PTF 2 PTF 3 PTF 4 PTF 5 BRIEF FILED SUPPORTING THE FORMER EMERGENCY MANAGERS' 5/17/18 MOTION TO DISMISS DEF 1 DEF 2 DEF 3 DEF 4 DEF 6 DEF 7 DEF 18 PAYMENT RECEIPT NUMBER: COC-LAN.0002996 METHOD: CHECK $20.00 RESPONSE TO DEFENDANT DANIEL WYANT'S MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(4), (C)(7) AND (C)(8) (ORAL ARGUMENT REQUESTED) PTF 1 PTF 2 PTF 3

$20.00

User

Entry Date

mmla

6/11/18

mmla amd
mmla

6/18/18 12/19/18
6/25/18

$20.00

mmla mmla

6/25/18 6/25/18

$20.00

mmla
mmla amd

6/25/18
6/25/18 12/19/18

mmla

6/22/18

$20.00

mmla

6/25/18

mmla

6/29/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 13 of 20

Activity Date PTF 4

Activity

PTF 5

6/25/18

RESPONSE TO DEFENDANT BRADLEY WURFEL'S MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(4),(C)(7) AND (C)(8) (ORAL ARGUMENT REQUESTED)
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

6/25/18

MOTION TO REQUEST AN EXTENSION OF THE PAGE LIMIT ON PLAINTIFF'S RESPONSE TO 5/9/18 DEFENDANT BRADLEY WURFEL'S MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(4),(C)(7) AND (C)(8)
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

6/25/18

RECEIVABLE MOTION FEE

6/25/18

MOTION TO REQUEST AN EXTENSION OF THE PAGE LIMIT ON PLAINTIFF'S RESPONSE TO 5/9/18 DEFENDANT DANIEL WYANT'S MOTION FOR SUMMARY DISPOSTION UNDER MCR 2.116(C)(4),(C)(7) AND (C)(8)
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

6/25/18

MOTION TO STRIKE STATE DEFENDANT'S 6/22/18 BRIEF SUPPORTING FORMER EMERGENCY MANAGERS' 5/17/18 MOTION TO DISMISS AND BRIEF IN SUPPORT
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

6/27/18 6/27/18 6/27/18 6/29/18

ORDER REGARDING MOTION FOR AN EXTENSION OF THE PAGE LIMIT ON PLAINTIFF'S RESPONSE TO DEFENDANT WURFEL'S 5/9/18 MOTION FOR SUMMARY DISPOSITION
ORDER REGARDING MOTION FOR AN EXTENSION OF THE PAGE LIMIT ON PLAINTIFF'S RESPONSE TO DEFENDANTS EARLEY AND AMBROSE'S 5/18/18 AMENDED MOTION FOR SUMMARY DISPOSITION
ORDER REGARDING MOTION FOR AN EXTENSION OF THE PAGE LIMIT ON PLAINTIFF'S RESPONSE TO DEFENDANT WYANT'S 5/9/18 MOTION FOR SUMMARY DISPOSITION
RESPONSE TO PLAINTIFFS' MOTION TO STRIKE

DEF 1

DEF 2

DEF 3

DEF 4

User

Entry Date

mmla

6/29/18

$20.00

mmla mmla

7/2/18 7/2/18

$20.00

mmla mmla

7/2/18 7/2/18

mmla

7/2/18

amd

6/27/18

amd

6/27/18

amd

6/27/18

amd

6/27/18

mmla

6/29/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 14 of 20

Activity Date DEF 6

Activity

DEF 7

DEF 18

6/29/18

NOTICE OF SUBMISSION OF ORDER PURSUANT TO MCR 2.602(B) AND PROPOSED ORDER GRANTING DEFENDANT ADAM ROSENTHAL'S MOTION FOR SUMMARY DISPOSITION (JOINED MDEQ DEFENDANTS 5/15/18 MOTION)
DEF 9

7/2/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0003010

METHOD: CHECK $20.00

Corrected check for motions filed 6/25/18 received on 7/2/18

7/2/18

MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY AND BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED)
DEF 8

DEF 10

DEF 11

DEF 12

7/2/18

RECEIVABLE MOTION FEE

7/2/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0003013

METHOD: CHECK $20.00

7/2/18

MOTION TO REQUEST AN EXTENSION OF THE PAGE LIMIT ON PLAINTIFF'S RESPONSE TO DEFENDANT PEELER'S MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(7) AND (C)(8)
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

7/2/18

RECEIVABLE MOTION FEE

7/2/18

RESPONSE TO DEFENDANT PEELER'S 5/21/18 MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(4),(7) AND (C)(8) [ORAL ARGUMENT REQUESTED]
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

7/2/18

MOTION TO REQUEST AN EXTENSION OF THE PAGE LIMIT ON PLAINTIFF'S RESPONSE TO DEFENDANT SCOTT'S MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(7) AND (C)(8)
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

User

Entry Date

mmla

6/29/18

$20.00

mmla

7/2/18

$20.00

mmla mmla

7/2/18 7/2/18

$20.00 $20.00

mmla mmla

7/2/18 7/2/18

$20.00

mmla mmla

7/5/18 7/5/18

$20.00

mmla mmla

7/5/18 7/5/18

mmla

7/5/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 15 of 20

Activity Date

Activity

7/2/18

RESPONSE TO DEFENDANT SCOTT'S MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(7) AND (C)(8) [ORAL ARGUMENT REQUESTED]

PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

7/2/18

MOTION TO REQUEST EXTENSION OF PAGE LIMIT ON PLAINTIFF'S RESPONSE TO DEFENDANT MDEQ EMPLOYEES MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(4),(C)(7) & (C)(8) AND DEFENDANT ROSENTHAL'S NOTICE OF JOINDER
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

7/2/18

RESPONSE TO DEFENDANT MDEQ EMPLOYEES MOTION FOR SUMMARY DISPOSITION UNDER MCR 2.116(C)(4),(C)(7) AND (C)(8) AND DEFENDANT ROSENTHAL'S NOTICE OF JOINDER TO MOTION FOR SUMMARY DISPOSITION [ORAL ARGUMENT REQUESTED]
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

7/3/18

MOTION FOR LEAVE TO FILE REPLY BRIEF IN EXCESS OF PAGE LIMIT [DEFENDANT WYANT]
DEF 5

7/3/18

RECEIVABLE MOTION FEE

7/3/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0003015

METHOD: CHECK $20.00

7/3/18

MOTION FOR LEAVE TO FILE REPLY BRIEF IN EXCESS OF PAGE LIMIT [DEFENDANT WURFEL]
DEF 13

7/3/18

RECEIVABLE MOTION FEE

7/3/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0003016

METHOD: CHECK $20.00

7/5/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0003020

METHOD: CHECK $20.00

7/9/18 7/9/18

ORDER GRANTING PLAINTIFFS' MOTION FOR EXTENSION OF PAGE LIMIT FOR PLAINTIFFS' RESPONSE TO DEFENDANT MDEQ EMPLOYEES' MOTION FOR SUMMARY DISPOSITION AND DEFENDANT ROSENTHAL'S NOTICE OF JOINDER
ORDER REGARDING MOTION FOR AN EXTENSION OF THE PAGE LIMIT ON DEFENDANT WYANT'S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT WYANT'S 5/9/18 MOTION FOR SUMMARY DISPOSITION

User

Entry Date

mmla

7/5/18

mmla

7/5/18

mmla

7/5/18

$20.00
$20.00 $20.00

mmla mmla
mmla mmla

7/3/18 7/3/18
7/3/18 7/3/18

$20.00
$20.00 $20.00

mmla mmla
mmla mmla

7/3/18 7/3/18
7/3/18 7/3/18

$20.00

mmla

7/5/18

mmla

7/9/18

mmla mmla

7/9/18 7/10/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Activity Date

Activity

7/9/18

ORDER REGARDING MOTION FOR AN EXTENSION OF THE PAGE LIMIT ON DEFENDANT WURFEL'S REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT WURFEL'S 5/9/18 MOTION FOR SUMMARY DISPOSITION

7/9/18

ORDER GRANTING PLAINTIFFS' MOTION FOR EXTENSION OF PAGE LIMIT FOR PLAINTIFFS' RESPONSE TO DEFENDANT PEELER'S MOTION FOR SUMMARY DISPOSITION

7/9/18

ORDER GRANTING PLAINTIFFS' MOTION FOR EXTENSION OF PAGE LIMIT FOR PLAINTIFFS' RESPONSE TO DEFENDANT SCOTT'S MOTION FOR SUMMARY DISPOSITION

7/9/18

REPLY BRIEF TO PLAINTIFFS' RESPONSE TO DEFENDANT SCOTT'S MOTION FOR SUMMARY DISPOSITION

DEF 20

7/10/18

REPLY BRIEF BY FORMER EMERGENCY MANANGERS DARNELL EARLEY AND GERALD AMBROSE (ORAL ARGUMENT REQUESTED)
DEF 16

DEF 17

7/10/18 7/10/18 7/10/18 7/10/18 7/11/18

OPINION ON STATE DEFENDANTS' 2/14/18 MOTION FOR SUMMARY DISPOSITION
ORDER DENYING STATE DEFENDANTS' 2/14/18 MOTION FOR SUMMARY DISPOSITION
OPINION ON FORMER EMERGENCY MANAGERS' 5/18/18 AMENDED MOTION FOR SUMMARY DISPOSITION
ORDER DENYING FORMER EMERGENCY MANAGERS' 5/18/18 AMENDED MOTION FOR SUMMARY DISPOSITION
REPLY BRIEF IN SUPPORT OF DEFENDANT DANIEL WYANT'S MOTION FOR SUMMARY DISPOSITION (ORAL ARGUMENT REQUESTED)
DEF 5

7/11/18

REPLY BRIEF IN SUPPORT OF DEFENDANT BRADLEY WURFEL'S MOTION FOR SUMMARY DISPOSITION (ORAL ARGUMENT REQUESTED)
DEF 13

7/16/18

PROPOSED STIPULATED ORDER GRANTING MDEQ EMPLOYEE DEFENDANTS' 6/29/18 MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

DEF 1

DEF 2

DEF 3

DEF 4

DEF 5

DEF 6

DEF 7

DEF 8

DEF 9

DEF 10

DEF 11

DEF 12

DEF 13

Public 12/1/2019 3:02:04 PM Page: 16 of 20

User

Entry Date

mmla

7/9/18

mmla

7/9/18

mmla

7/9/18

mmla

7/10/18

mmla

7/10/18

mmla mmla mmla mmla mmla

7/10/18 7/10/18 7/10/18 7/10/18 7/11/18

mmla

7/11/18

mmla

7/16/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 17 of 20

Activity Date DEF 15

Activity

DEF 16

DEF 17

DEF 18

DEF 19

DEF 20

7/18/18

PROPOSED STIPULATED ORDER ALLOWING DEFENDANT KURTZ ADDITIONAL TIME TO FILE RESPONSIVE PLEADINGS
PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

DEF 15

7/20/18

MOTION TO FILE REPLY BRIEF SUPPORTING SUMMARY DISPOSITION EXCEEDING PAGE LIMIT
DEF 8

DEF 10

DEF 11

DEF 12

7/20/18

RECEIVABLE MOTION FEE

7/20/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0003045

METHOD: CHECK $20.00

7/20/18

REPLY BRIEF IN SUPPORT OF MAY 15, 2018 MOTION FOR SUMMARY DISPOSITION (ORAL ARGUMENT REQUESTED)
DEF 8

DEF 10

DEF 11

DEF 12

7/20/18

ORDER GRANTING MDEQ EMPLOYEE DEFENDANTS' JUNE 29, 2018 MOTION FOR PROTECTIVE ORDER STAYING DISCOVERY
DEF 1

DEF 2

DEF 3

DEF 4

DEF 5

DEF 6

DEF 7

DEF 8

DEF 9

DEF 10

DEF 11

DEF 12

DEF 13

DEF 14

User

Entry Date

mmla mmla

7/20/18 8/15/18

$20.00

mmla mmla

7/20/18 7/20/18

$20.00 $20.00

mmla mmla

7/20/18 7/20/18

mmla

7/20/18

mmla

7/20/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 18 of 20

Activity Date DEF 15

Activity

DEF 16

DEF 17

DEF 18

DEF 19

DEF 20

7/23/18

APPEARANCE

DEF 20

7/27/18 7/27/18
7/27/18

ORDER ALLOWING DEFENDANT KURTZ ADDITIONAL TIME TO FILE RESPONSIVE PLEADINGS
ORDER GRANTING MDEQ DEFENDANTS' JULY 20, 2018 MOTION FOR EXTENSION OF PAGE LIMIT FOR THEIR JOINT REPLY TO PLAINTIFFS' RESPONSE TO DEFENDANT MDEQ EMPLOYEES' MOTION FOR SUMMARY DISPOSITION
ORDER REGARDING HEARING

7/27/18

MOTION FOR SUMMARY DISPOSITION

CANCELLED 8/20/18 2:00 P

LOC: DETROIT COA COURTROOM

PTF 1

PTF 2

PTF 3

PTF 4

PTF 5

DEF 1

DEF 2

DEF 3

DEF 4

DEF 5

DEF 6

DEF 7

DEF 8

DEF 9

DEF 10

DEF 11

DEF 12

DEF 13

DEF 14

DEF 15

DEF 16

DEF 17

DEF 18

DEF 19

DEF 20

7/31/18

MOTION FOR RECONSIDERATION BY FORMER EMERGENCY MANANGERS DARNELL EARLEY AND GERALD AMBROSE OF THE COURT'S 7/10/18 ORDER DENYING SUMMARY DISPOSITION AND BRIEF IN SUPPORT (ORAL ARGUMENT REQUESTED)
DEF 16

$20.00

User

Entry Date

mmla

7/23/18

mmla mmla

7/27/18 7/27/18

mmla mmla

7/27/18 7/27/18

mmla mmla

7/31/18 7/31/18

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 19 of 20

Activity Date DEF 17

Activity

7/31/18

RECEIVABLE MOTION FEE

7/31/18

PAYMENT

RECEIPT NUMBER: COC-LAN.0003064

METHOD: CHECK $20.00

7/31/18

CLAIM OF APPEAL

DEF 1

DEF 2

DEF 3

DEF 4

DEF 6

DEF 7

DEF 18

7/31/18

RECEIVABLE APPEALS FEE

7/31/18

COMMENT

NOTIFICATION form was generated.

7/31/18

MOTION FOR SUMMARY DISPOSITION 8/20/18 2:00 PM

CANCELLED

OTHER

Claim of Appeal filed pursuant to MCR 7.202(6)(a)(v) regarding governmental immunity

7/31/18

OFFICIAL COURT OF CLAIMS NOTIFICATION

8/2/18

MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY

8/2/18 8/2/18
8/6/18 8/6/18 8/29/18 10/18/18
12/3/18

DEF 5 RECEIVABLE MOTION FEE PAYMENT RECEIPT NUMBER: COC-LAN.0003071 METHOD: CHECK $20.00 ORDER REGARDING WYANT'S 8/2/2018 MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY ANSWER, CIVIL WITH PROOF OF SERVICE DEF 15 ORDER OF THE COURT OF APPEALS (CONSOLIDATING CASES ON APPEAL) PAYMENT RECEIPT NUMBER: COC-LAN.0003308 METHOD: ELECTRONIC FUND TRANSFER $25.00 COMMENT

12/20/18 1/16/19

Notification from the Court of Appeals requesting record within 21 days.
COA 344862 COMMENT File prepared and sent electronically to the Court of Appeals. MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY

DEF 5

User

Entry Date

$20.00 $20.00

mmla mmla

7/31/18 7/31/18

$25.00

mmla

7/31/18

$25.00

mmla mmla

7/31/18 7/31/18

mmla

7/31/18

$20.00
$20.00 $20.00

mmla mmla mmla
mmla mmla

7/31/18 8/2/18 8/2/18
8/2/18 8/2/18

$25.00

amd

8/6/18

amd

8/6/18

amd

9/28/18

mlh 10/18/18

amd

12/3/18

amd 12/19/18

$20.00

amd 12/20/18

nmh

1/16/19

nmh

1/16/19

STATE OF MICHIGAN COURT OF CLAIMS

REGISTER OF
ACTIONS

CASE ID 17-000291-MZ
C/COC/MI

Public 12/1/2019 3:02:04 PM Page: 20 of 20

Activity Date

1/16/19

RECEIVABLE MOTION FEE

Activity

1/16/19

PAYMENT

RECEIPT NUMBER: COC-LAN.0003501

METHOD: CHECK $20.00

4/8/19

MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY

4/8/19 4/9/19
4/15/19 7/22/19

DEF 5 RECEIVABLE MOTION FEE PAYMENT RECEIPT NUMBER: COC-LAN.0003692 METHOD: CHECK $20.00 ORDER REGARDING WYANT'S APRIL 8, 2019 MOTION FOR LEAVE TO FILE SUPPLEMENTAL AUTHORITY DEF 5 REVIEW REVIEW FOR OUTCOME OF APPEAL

$20.00 $20.00

User

Entry Date

nmh

1/16/19

nmh

1/16/19

$20.00
$20.00 $20.00

nmh

4/9/19

nmh

4/9/19

nmh

4/9/19

nmh

4/9/19

SET 1/15/20 8:00 A

nmh

4/15/19

nmh

3/11/19