U.S. District Court Eastern District of Michigan (Flint) CIVIL DOCKET FOR CASE #: 4:17−cv−11218−LVP−RSW

reassigned

JAN BURGESS, and all 2,959 individuals identified in the Burgess FTCA Administrative Complaint v. UNITED STATES OF AMERICA Assigned to: District Judge Linda V. Parker Referred to: Magistrate Judge R. Steven Whalen Cause: 28:2671 Federal Tort Claims Act
Special Master

Date Filed: 04/18/2017 Jury Demand: None Nature of Suit: 893 Environmental Matters Jurisdiction: Federal Question

Deborah E. Greenspan

represented by Deborah E. Greenspan Blank Rome LLP 1825 Eye Street, N.W. Washington, DC 20006 202−420−3100 Fax: 202−420−2201 Email: DGreenspan@blankrome.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
JAN BURGESS, and all 2,959 individuals identified in the Burgess FTCA Administrative Complaint

represented by Beth M. Rivers Pitt McGehee Palmer & Rivers 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: brivers@pittlawpc.com ATTORNEY TO BE NOTICED

Cary S. McGehee Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: cmcgehee@pittlawpc.com ATTORNEY TO BE NOTICED

Cynthia M. Lindsey Cynthia Lindsey & Associates 8900 E. Jefferson Avenue No. 612 Detroit, MI 48214 313−824−2157 Fax: 313−824−2157 Email: cynthia@cmlindseylaw.com ATTORNEY TO BE NOTICED

Deborah A. LaBelle 221 N. Main Street Suite 300 Ann Arbor, MI 48104 734−996−5620 Email: deblabelle@aol.com ATTORNEY TO BE NOTICED

Emmy L Levens Cohen Milstein Sellers and Toll PLLC 1100 New York Avenue, N W

Suite 500, West Tower Washington, DC 20005 202−408−4600 Fax: 202−408−4699 Email: elevens@cohenmilstein.com ATTORNEY TO BE NOTICED
Jessica B. Weiner Cohen Milstein Sellers & Toll PLLC 1100 New York Ave., NW Washington, DC 20005 202−408−4600 Fax: 202−408−4699 Email: jweiner@cohenmilstein.com ATTORNEY TO BE NOTICED
Julie H. Hurwitz Goodman and Hurwitz, P.C. 1394 E. Jefferson Avenue Detroit, MI 48207 313−567−6170 Fax: 313−567−4827 Email: jhurwitz@goodmanhurwitz.com ATTORNEY TO BE NOTICED
Kathryn Bruner James Goodman and Hurwitz, P.C. 1394 E. Jefferson Avenue Detroit, MI 48207 313−567−6170 Fax: 313−567−4827 Email: kjames@goodmanhurwitz.com ATTORNEY TO BE NOTICED
Shermane A. Sealey Law Office of Shermane Sealey 30300 Northwestern Highway Suite 142 Farmington Hills, MI 48334 248−403−5333 Email: stsea403@gmail.com ATTORNEY TO BE NOTICED
Teresa Ann Caine Bingman Law Offices of Teresa A. Bingman 1425 Ambassador Drive Okemos, MI 48864 877−957−7077 Fax: 877−957−7077 Email: tbingman@tbingmanlaw.com ATTORNEY TO BE NOTICED
Theodore J. Leopold Cohen Milstein Sellers & Toll, PLLC 2925 PGA Boulevard Suite 200 Palm Beach Gardens, FL 33410 561−515−1400 Fax: 561−515−1401 Email: tleopold@cohenmilstein.com ATTORNEY TO BE NOTICED
William H. Goodman Goodman and Hurwitz 1394 E. Jefferson Avenue

Plaintiff William Thomas
Plaintiff William WILLIAM THOMAS, and all 1,923 individuals identified in the Thomas FTCA administrative Complaint Consolidated from 18−10243

Detroit, MI 48207 313−567−6170 Fax: 313−567−4827 Email: bgoodman@goodmanhurwitz.com ATTORNEY TO BE NOTICED
Michael L. Pitt Pitt, McGehee, 117 W. Fourth Street Suite 200 Royal Oak, MI 48067−3804 248−398−9800 Email: mpitt@pittlawpc.com ATTORNEY TO BE NOTICED
represented by Beth M. Rivers (See above for address) ATTORNEY TO BE NOTICED
Hunter Shkolnik Napoli Shkolnik Law PLLC 1301 Avenue of the Americas 10th Floor New York, NY 10019 212−397−1000 Fax: 646−843−7603 Email: hunter@napolilaw.com ATTORNEY TO BE NOTICED
Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED
represented by Hunter Shkolnik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick James Lanciotti Napoli Shkolnik Law PLLC 360 Lexington Avenue 11th Floor New York, NY 10017 212−397−1000 Fax: 646−843−7603 Email: planciotti@napolilaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Julie H. Hurwitz (See above for address) ATTORNEY TO BE NOTICED
Paul J. Napoli Napoli Shkolnik Law PLLC 1301 Avenue of the Americas 10th Floor New York, NY 10019 212−397−1000 Fax: 646−843−7603 Email: pnapoli@napolilaw.com ATTORNEY TO BE NOTICED

Plaintiff Nicolette Adams Consolidated from 18−13166 and all indiviudals identified in the Adams FTCA Admistrative Complaint
Plaintiff Edwin Anderson, Consolidated from 18−12725
Plaintiff Alline Anderson Consolidated from 18−12725
Plaintiff Leroy Blassingame Consolidated from 18−12725
Plaintiff Mary Blassingame Consolidated from 18−12725
Plaintiff Deneesha Bobo Consolidated from 18−12725
Plaintiff Mrs. Beatrice Boler Consolidated from 18−12725
Plaintiff Kalisha Bishop Consolidated from 18−12725

William H. Goodman (See above for address) ATTORNEY TO BE NOTICED
represented by Hunter Shkolnik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick James Lanciotti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington 718 Beach Street P.O. Box 187 Flint, MI 48501−0187 810−407−6868 Fax: 810−265−7315 Email: Val@vlwlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address)

Plaintiff James Bishop Consolidated from 18−12725
Plaintiff James Blakely Consolidated from 18−12725
Plaintiff Mary Blakely Consolidated from 18−12725
Plaintiff Robert Boyler,, II Consolidated from 18−12725
Plaintiff Robert Boyler, Sr. Consolidated from 18−12725
Plaintiff Alvin Brantley Consolidated from 18−12725
Plaintiff Marilyn Brayson Consolidated from 18−12725
Plaintiff Ray Brayson Consolidated from 18−12725
Plaintiff Lance Brooks Consolidated from 18−12725
Plaintiff

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Jamie Brooks Consolidated from 18−12725
Plaintiff David Brown Consolidated from 18−12725
Plaintiff Kelly Brown Consolidated from 18−12725
Plaintiff Ruth Bryant Consolidated from 18−12725
Plaintiff Lillian Chandler Consolidated from 18−12725
Plaintiff Karman Neal Consolidated from 18−12725
Plaintiff Aubrey Neal Consolidated from 18−12725
Plaintiff Richard Curtis Consolidated from 18−12725
Plaintiff Chaun Dean Consolidated from 18−12725
Plaintiff Marc Dean Consolidated from 18−12725

Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Leon El−Alamin, Sr Consolidated from 18−12725
Plaintiff Leon El−Alamin , Jr. Consolidated from 18−12725
Plaintiff Margaret Fralick Consolidated from 18−12725
Plaintiff Belvain Fuller Consolidated from 18−12725
Plaintiff Charlie Harris Consolidated from 18−12725
Plaintiff Charlie Harris, Jr., Jr. Consolidated from 18−12725
Plaintiff Veda Harris Consolidated from 18−12725
Plaintiff Cecil Hoskins Consolidated from 18−12725
Plaintiff Marva Hoskins Consolidated from 18−12725
Plaintiff Louis Hubbard Consolidated from 18−12725

represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Gloria Jones Consolidated from 18−12725
Plaintiff Ann Kaufeld Consolidated from 18−12725
Plaintiff William Scott Kincaid Consolidated from 18−12725
Plaintiff Hilda Mathus Consolidated from 18−12725
Plaintiff Sylvester Obb, Jr. Consolidated from 18−12725
Plaintiff Embery Pope Consolidated from 18−12725
Plaintiff Juanell Rice Consolidated from 18−12725
Plaintiff Elena Richardson Consolidated from 18−12725
Plaintiff Makari Richardson Consolidated from 18−12725
Plaintiff Makiah Richardson Consolidated from 18−12725

represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY

Plaintiff Helene Saldana Consolidated from 18−12725
Plaintiff Tabitha Saldana Consolidated from 18−12725
Plaintiff Amber Saldana Consolidated from 18−12725
Plaintiff Crystal Saldana Consolidated from 18−12725
Plaintiff Javier Saldana Consolidated from 18−12725
Plaintiff Muriel Samuels Consolidated from 18−12725
Plaintiff Jeremy Seniff Consolidated from 18−12725
Plaintiff Leo Seniff Consolidated from 18−12725
Plaintiff Kathleen Seniff Consolidated from 18−12725
Plaintiff Larry Shears Consolidated from 18−12725

ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address)

Plaintiff Faith Timmons Consolidated from 18−12725
Plaintiff Olivia Timmons Consolidated from 18−12725
Plaintiff Gregory Timmons Consolidated from 18−12725
Plaintiff Gregory Timmons, II Consolidated from 18−12725
Plaintiff Sandra Walker−Pope Consolidated from 18−12725
Plaintiff Lamar Washington Consolidated from 18−12725
Plaintiff Lillie Wilson Consolidated from 18−12725
Plaintiff Harold Woodson Consolidated from 18−12725
Plaintiff Deidre Woodson Consolidated from 18−12725
Plaintiff

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Maya Woodson Consolidated from 18−12725
Plaintiff Fredie Williams Consolidated from 18−12725
Plaintiff Shirley Williams Consolidated from 18−12725
Plaintiff Tracy Abraham, and all 1,666 individuals identified in the FTCA administrative Complaint Consolidated from 19−10625
Plaintiff Verenda Berry Consolidated from 19−12766 and all 551 individuals identified in the FTCA Administraive Complaint
V. Consol Plaintiff Joseph Zelley, Sr. Consolidated from 20−10441, and all 352 individuals identified in the FTCA Administrative Complaint
V. Defendant UNITED STATES OF AMERICA

Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valdemar L. Washington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hunter Shkolnik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick James Lanciotti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hunter Shkolnik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick James Lanciotti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Hunter Shkolnik (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam M. Dinnell U.S. Department of Justice Civil Division, Torts Branch 1331 Penssylvania Ave. NW 8000S Washington, DC 20004 202−616−4211 Email: Adam.Dinnell@usdoj.gov TERMINATED: 08/14/2017 ATTORNEY TO BE NOTICED

Bethany J. Henneman U.S. Department of Justice Civil Division, Torts Branch Environmental Torts 175 N Street N.E. Washington, DC 20001 202−616−4447 Email: Bethany.J.Henneman@usdoj.gov TERMINATED: 07/16/2018 ATTORNEY TO BE NOTICED
Eric Rey US Department of Justice Civil Division 175 N Street, NE Washington, DC 20002 202−616−4224 Email: eric.a.rey@usdoj.gov ATTORNEY TO BE NOTICED
Jason T. Cohen U.S. Department of Justice Civil Division Torts Branch−Environmental Tort Litigation 175 N. Street, NE Washington, DC 20002 202−514−0335 Fax: 202−616−4473 Email: Jason.T.Cohen@usdoj.gov ATTORNEY TO BE NOTICED
Michael L. Williams United States Department of Justice Civil Division, Torts Branch, Environmental Tort Litigation 175 N Street, N.E. Washington, DC 20002 202−307−3839 Email: michael.l.williams@usdoj.gov ATTORNEY TO BE NOTICED
Sarah B. Williams U.S. Department of Justice Environmental Torts Lititgation Torts Branch, Civil Division 1331 Pennsylvania Ave. Suite 8020S Washington, DC 20004 202−616−4269 Fax: 202616−4473 Email: sarah.williams@usdoj.gov TERMINATED: 07/23/2019 ATTORNEY TO BE NOTICED
Thomas G. Ward U.S. Department of Justice, Civil Division 950 Pennsylvania Avenue NW Washington, DC 20530 202−514−7835 Email: thomas.g.ward@usdoj.gov TERMINATED: 02/14/2020 ATTORNEY TO BE NOTICED
Timothy B. Walthall DOJ−Civ

Defendant Veolia North America, Inc.
Defendant Veolia North America, LLC
Defendant Veolia Water North America Operating Services, LLC Interested Party Michael L Pitt Consolidated from 18−10243
Interested Party Beth M. Rivers Consolidated from 18−10243
Interested Party Aasiyah Meeks

Patti King 175 N Street, NE Ste 11.102 Washington, DC 20530 202−305−0692 Email: timothy.walthall@usdoj.gov ATTORNEY TO BE NOTICED
William Quinn DOJ−Civ Department of Justice 175 N Street, NE Ste 11.101 3CON Washington, DC 20002 202−616−4451 Email: william.j.quinn@usdoj.gov ATTORNEY TO BE NOTICED
represented by Alaina N. Devine Campbell Conroy & O'Neil, P.C. 1 Constitution Wharf Suite 310 Boston, MA 02129 617−241−3037 Fax: 617−241−5115 Email: adevine@campbell−trial−lawyers.com ATTORNEY TO BE NOTICED
represented by Alaina N. Devine (See above for address) ATTORNEY TO BE NOTICED
represented by Alaina N. Devine (See above for address) ATTORNEY TO BE NOTICED
represented by Michael L. Pitt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Beth M. Rivers (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Corey M. Stern Levy Konigsberg, LLP 800 Third Avenue Suite 11th Floor New York, NY 10022 212−605−6298 Fax: 212−605−6290 Email: cstern@levylaw.com ATTORNEY TO BE NOTICED

Amicus Lockwood, Andrews & Newman, Inc.
Amicus Lockwood, Andrews & Newman, P.C. Amicus Leo A Daly Company

represented by David C. Kent Faegre Drinker Biddle Reath LLP 1717 Main St. Suite 5400 Dallas, TX 75201 469−356−2535 Fax: 469−357−0860 Email: david.kent@faegredrinker.com ATTORNEY TO BE NOTICED
represented by David C. Kent (See above for address) ATTORNEY TO BE NOTICED
represented by David C. Kent (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/18/2017
04/20/2017 04/20/2017 04/20/2017
04/21/2017 04/23/2017 04/24/2017 04/26/2017 04/26/2017 04/27/2017

# Docket Text
1 COMPLAINT filed by JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint against UNITED STATES OF AMERICA. Plaintiff requests summons issued. Receipt No: 0645−6189401 − Fee: &#036 400. County of 1st Plaintiff: Genesee − County Where Action Arose: Genesee − County of 1st Defendant: Genesee. [Previously dismissed case: U.S. District Court − Eastern District, 17−10291, Judge Linda V. Parker] [Possible companion case(s): U.S. District Court − Eastern District, 16−14498, Judge Judith E. Levy] (Attachments: # 1 Exhibit 1 − Names Listed on EPA Batch 1, # 2 Exhibit 2 − Names Listed on EPA Batch 2, # 3 Exhibit 3 − Names Listed on EPA Batch 3) (Pitt, Michael) (Entered: 04/18/2017)
2 SUMMONS Issued for *UNITED STATES OF AMERICA* (DAll) (Entered: 04/20/2017)
3 SUMMONS Issued for the United States Attorney and the Office of the Attorney General. (DAll) (Entered: 04/20/2017)
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 (DAll) (Entered: 04/20/2017)
4 ORDER REASSIGNING CASE from District Judge George Caram Steeh and Magistrate Judge David R. Grand in Detroit to District Judge Linda V. Parker and Magistrate Judge R. Steven Whalen in Flint. (SSch) (Entered: 04/21/2017)
5 ATTORNEY APPEARANCE: Cynthia M. Lindsey appearing on behalf of All Plaintiffs (Lindsey, Cynthia) (Entered: 04/23/2017)
6 NOTICE of Appearance by Cary S. McGehee on behalf of All Plaintiffs. (McGehee, Cary) (Entered: 04/24/2017)
7 NOTICE of Appearance by Deborah A. LaBelle on behalf of All Plaintiffs. (LaBelle, Deborah) (Entered: 04/26/2017)
8 NOTICE of Appearance by Beth M. Rivers on behalf of JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint. (Rivers, Beth) (Entered: 04/26/2017)
9 ATTORNEY APPEARANCE: Julie H. Hurwitz appearing on behalf of All Plaintiffs (Hurwitz, Julie) (Entered: 04/27/2017)

04/27/2017 04/27/2017 04/28/2017 05/01/2017 05/01/2017 05/01/2017 05/17/2017 05/19/2017 06/14/2017
06/15/2017 06/15/2017 06/27/2017 07/05/2017 07/11/2017 07/11/2017 07/13/2017 07/14/2017 07/14/2017 07/25/2017 08/11/2017

10 ATTORNEY APPEARANCE: William H. Goodman appearing on behalf of All Plaintiffs (Goodman, William) (Entered: 04/27/2017)
11 ATTORNEY APPEARANCE: Kathryn Bruner James appearing on behalf of All Plaintiffs (James, Kathryn) (Entered: 04/27/2017)
12 ATTORNEY APPEARANCE: Shermane A. Sealey appearing on behalf of JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint (Sealey, Shermane) (Entered: 04/28/2017)
13 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of UNITED STATES OF AMERICA served on 4/20/2017, answer due 6/19/2017. (Pitt, Michael) (Entered: 05/01/2017)
14 CERTIFICATE of Service/Summons Returned Executed. Attorney General of the U.S. served on 4/25/2017. (Pitt, Michael) (Entered: 05/01/2017)
15 CERTIFICATE of Service/Summons Returned Executed. U.S. Attorney on behalf of UNITED STATES OF AMERICA served on 4/24/2017, answer due 6/23/2017. (Pitt, Michael) (Entered: 05/01/2017)
16 NOTICE of Appearance by Adam M. Dinnell on behalf of UNITED STATES OF AMERICA. (Dinnell, Adam) (Entered: 05/17/2017)
17 NOTICE of Appearance by Sarah B. Williams on behalf of UNITED STATES OF AMERICA. (Williams, Sarah) (Entered: 05/19/2017)
18 Joint MOTION for Order Scheduling an Initial Case Management Status Conference by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit A (Proposed Stipulated Initial Case Management Order −− for Discussion at the Requested Conference)) (Dinnell, Adam) (Entered: 06/14/2017)
19 NOTICE TO APPEAR BY TELEPHONE: Scheduling Conference set for 7/13/2017 at 11:30 AM before District Judge Linda V. Parker (RLou) (Entered: 06/15/2017)
TEXT−ONLY ORDER Denying as Moot 18 Joint MOTION for Order Scheduling an Initial Case Management Status Conference. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 06/15/2017)
20 NOTICE of Appearance by Teresa Ann Caine Bingman on behalf of All Plaintiffs. (Bingman, Teresa) (Entered: 06/27/2017)
21 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Attachments: # 1 Exhibit A, Proposed Stipulated Initial Case Management Order) (Dinnell, Adam) (Entered: 07/05/2017)
Reset Conference ***TIME CHANGE ONLY***: TELEPHONIC Scheduling Conference RESET for 7/13/2017 at 10:30 AM before District Judge Linda V. Parker (RLou) (Entered: 07/11/2017)
22 NOTICE of Appearance by Michael L. Williams on behalf of UNITED STATES OF AMERICA. (Williams, Michael) (Entered: 07/11/2017)
Reset Conference: TELEPHONIC Scheduling Conference RESET for 7/14/2017 at 10:30 AM before District Judge Linda V. Parker (RLou) (Entered: 07/13/2017)
Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Scheduling Conference held on 7/14/2017. (Court Reporter: None Present, Not on the Record) (RLou) (Entered: 07/14/2017)
23 STIPULATED INITIAL CASE MANAGEMENT SCHEDULING ORDER: Threshold Dispositive Motion Cut−off set for 2/16/2018. Signed by District Judge Linda V. Parker. (Refer to image for additional dates) (RLou) (Entered: 07/14/2017)
24 NOTICE of Appearance by Bethany J. Henneman on behalf of UNITED STATES OF AMERICA. (Henneman, Bethany) (Entered: 07/25/2017)
25 NOTICE of Withdrawal of Attorney Adam M. Dinnell for on behalf of UNITED STATES OF AMERICA. (Dinnell, Adam) (Entered: 08/11/2017)

08/14/2017 10/10/2017 01/31/2018 02/02/2018
02/15/2018 02/15/2018 02/15/2018
02/15/2018 02/16/2018 02/28/2018 03/01/2018 03/02/2018
03/02/2018
03/02/2018

26 ORDER Granting Withdrawal of Attorney Adam M. Dinnell. Signed by District Judge Linda V. Parker. (RLou) (Entered: 08/14/2017)
27 NOTICE of Appearance by Thomas G. Ward on behalf of UNITED STATES OF AMERICA. (Ward, Thomas) (Entered: 10/10/2017)
28 STIPULATED ORDER to Amend 1 Complaint. Signed by District Judge Linda V. Parker. (Attachments: # 1 Exhibit Amended Complaint) (JOwe) (Entered: 01/31/2018)
29 AMENDED COMPLAINT First filed by JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint against UNITED STATES OF AMERICA. NO NEW PARTIES ADDED. (Attachments: # 1 Exhibit 1 − Names Listed on Batch 1, # 2 Exhibit 2 − Names Listed on Batch 2, # 3 Exhibit 3 − Names Listed on Batch 3, # 4 Exhibit 4 − Names Listed on Batch 4) (Pitt, Michael) (Entered: 02/02/2018)
30 NOTICE of Change of Address/Contact Information by Bethany J. Henneman on behalf of UNITED STATES OF AMERICA. (Henneman, Bethany) (Entered: 02/15/2018)
31 NOTICE of Change of Address/Contact Information by Michael L. Williams on behalf of UNITED STATES OF AMERICA. (Williams, Michael) (Entered: 02/15/2018)
32 [STRICKEN] MOTION Motion of 53 Burgess Plaintiffs To Strike All Allegations As To Them Contained In The Thomas Case − USDC ED MI File No. 4:18−cv−10243 by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − List of Burgess Clients, # 3 Exhibit 2 − Client Authorizations, # 4 Exhibit 3 − Lewisteen Lorick Letter, # 5 Exhibit 4 − Lewisteen Lorick Retainer Agreement, # 6 Exhibit 5 − Takisha Moller Letter, # 7 Exhibit 6 − Letter from Thomas Attorneys to Moller, # 8 Exhibit 7 − Emails 2−13−18 to 2−14−18 re Seeking Concurrence) (Hurwitz, Julie) Modified on 3/9/2018 (RLou). (Entered: 02/15/2018)
33 NOTICE of Change of Address/Contact Information by Sarah B. Williams on behalf of UNITED STATES OF AMERICA. (Williams, Sarah) (Entered: 02/15/2018)
34 STIPULATED ORDER to Extend Filing Deadlines for Threshold Dispositive Motion (Threshold Dispositive Motion Cut−off set for 3/2/2018, Response is due by 4/13/18, Reply is due by 5/4/18). Signed by District Judge Linda V. Parker. (Refer to image for additional dates) (RLou) (Entered: 02/16/2018)
35 [STRICKEN] STIPULATION re 32 MOTION Motion of 53 Burgess Plaintiffs To Strike All Allegations As To Them Contained In The Thomas Case − USDC ED MI File No. 4:18−cv−10243 by William Thomas (Shkolnik, Hunter) Modified on 3/1/2018 (RLou). (Entered: 02/28/2018)
36 ORDER Striking 35 Stipulated Extension. Signed by District Judge Linda V. Parker. (RLou) (Entered: 03/01/2018)
37 MOTION to Dismiss by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit A, Deposition of Miguel Del Toral, # 2 Exhibit B, Deposition of Rita Bair, # 3 Exhibit C, Deposition of Tinka Hyde, # 4 Exhibit D, Deposition of Deborah Baltazar, # 5 Exhibit E, Deposition of Jennifer Crooks, # 6 Exhibit F, Deposition of Thomas Poy, # 7 Exhibit G, Deposition of Robert Kaplan) (Williams, Michael) (Entered: 03/02/2018)
38 EXHIBIT 1 Del Toral re 37 MOTION to Dismiss by UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 2 Del Toral, # 2 Exhibit 3 Del Toral, # 3 Exhibit 4 Del Toral, # 4 Exhibit 5 Del Toral, # 5 Exhibit 6 Del Toral, # 6 Exhibit 7 Del Toral, # 7 Exhibit 8 Del Toral, # 8 Exhibit 9 Bair, # 9 Exhibit 10 Bair, # 10 Exhibit 11 Bair, # 11 Exhibit 12 Bair, # 12 Exhibit 13 Hyde, # 13 Exhibit 14 Hyde, # 14 Exhibit 15 Hyde, # 15 Exhibit 16 Hyde) (Williams, Michael) (Entered: 03/02/2018)
39 EXHIBIT 17 Hyde re 37 MOTION to Dismiss by UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 18 Hyde, # 2 Exhibit 19 Hyde, # 3 Exhibit 20 Hyde, # 4 Exhibit 21 Hyde, # 5 Exhibit 22 Hyde, # 6 Exhibit 23 Hyde, # 7 Exhibit 24 Hyde, # 8 Exhibit 25 Hyde, # 9 Exhibit 26 Hyde, # 10 Exhibit 27 Hyde, # 11 Exhibit 28 Hyde, # 12 Exhibit 29 Hyde, # 13 Exhibit 30 Hyde, # 14 Exhibit 31 Hyde, # 15 Exhibit 32 Hyde, # 16 Exhibit 33 Baltazr, # 17 Exhibit 34 Baltazar, # 18 Exhibit 35 Baltazar, # 19 Exhibit 36 Baltazar, # 20 Exhibit 37 Baltazar, # 21 Exhibit 38 Baltazar, # 22 Exhibit

03/02/2018
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39 Baltazar) (Williams, Michael) (Entered: 03/02/2018)
40 EXHIBIT 40 Crooks re 37 MOTION to Dismiss by UNITED STATES OF AMERICA (Attachments: # 1 Exhibit 41 Crooks, # 2 Exhibit 42 Crooks, # 3 Exhibit 43 Crooks, # 4 Exhibit 44 Crooks, # 5 Exhibit 45 Crooks, # 6 Exhibit 46 Poy, # 7 Exhibit 47 Poy, # 8 Exhibit 48 Poy, # 9 Exhibit 49 Kaplan, # 10 Exhibit 51 Kaplan, # 11 Exhibit 52 Kaplan, # 12 Exhibit 53 Kaplan, # 13 Exhibit 54 Kaplan, # 14 Exhibit 55 Kaplan, # 15 Exhibit 56 Kaplan, # 16 Exhibit 57 Kaplan, # 17 Exhibit 58 Kaplan) (Williams, Michael) (Entered: 03/02/2018)
41 EXHIBIT 59 Kaplan re 37 MOTION to Dismiss by UNITED STATES OF AMERICA (Attachments: # 1 Exhibit Kaplan 60, # 2 Exhibit Kaplan 61, # 3 Exhibit Kaplan 62, # 4 Exhibit Kaplan 63, # 5 Exhibit Kaplan 64, # 6 Exhibit Kaplan 65, # 7 Exhibit 66 OARM, # 8 Exhibit 67 OARM, # 9 Exhibit 68 REGION, # 10 Exhibit 69 ANGLE) (Williams, Michael) (Entered: 03/02/2018)
42 [STRICKEN] RESPONSE to 32 MOTION Motion of 53 Burgess Plaintiffs To Strike All Allegations As To Them Contained In The Thomas Case − USDC ED MI File No. 4:18−cv−10243 filed by William Thomas. (Attachments: # 1 Exhibit Email between Burgess and Thomas Counsel, # 2 Exhibit Signed affidavits and stop work letters, # 3 Exhibit List of client communications, # 4 Exhibit Patrick Lanciotti Affirmation, # 5 Exhibit Redacted retainer addendum) (Shkolnik, Hunter) Modified on 3/9/2018 (RLou). (Entered: 03/08/2018)
43 ORDER Striking 32 MOTION of 53 Burgess Plaintiffs To Strike All Allegations As To Them Contained In The Thomas Case − USDC ED MI File No. 4:18−cv−10243 and, 42 Response to Motion. Signed by District Judge Linda V. Parker. (RLou) (Entered: 03/09/2018)
44 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 3/15/2018 at 3:30 PM before District Judge Linda V. Parker (RLou) (Entered: 03/13/2018)
Reset Conference ***TIME CHANGE ONLY***: TELEPHONIC Status Conference RESET for 3/15/2018 at 2:30 PM before District Judge Linda V. Parker (RLou) (Entered: 03/14/2018)
Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 3/15/2018. (Court Reporter: None Present, Not on the Record) (RLou) (Entered: 03/15/2018)
45 STIPULATION AND ORDER Extending the Time for Plaintiffs to Respond to Defendant's 37 MOTION to Dismiss (Response due by 4/27/2018, Reply due by 5/18/2018). Signed by District Judge Linda V. Parker. (RLou) (Entered: 03/19/2018)
46 ORDER. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/16/2018)
47 FINAL STIPULATION AND ORDER to Extend the Time for Filing Plaintiffs' Response to Defendant United States' 37 MOTION to Dismiss (Response due by 5/15/2018, Reply due by 6/6/2018) Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/18/2018)
48 ORDER Appointing Facilitative Mediators Pursuant to Eastern District of Michigan Local Rule 16.04. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/25/2018)
49 MOTION for Order for Clarification by UNITED STATES OF AMERICA. (Williams, Michael) (Entered: 04/27/2018)
50 NOTICE of Appearance by Eric Rey on behalf of UNITED STATES OF AMERICA. (Rey, Eric) (Entered: 05/01/2018)
51 ORDER Granting Defendant's 49 Motion for Order for Clarification and Clarifying April 25, 2018 Order Appointing Facilitative Mediators. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/02/2018)
52 Ex Parte MOTION for Leave to File Excess Pages by JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint. (Rivers, Beth) (Entered: 05/15/2018)

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53 RESPONSE to 37 MOTION to Dismiss for Lack of Subject Matter Jurisdiction filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 Emails, Feb 26, 2015 to March 3, 2015, # 3 Exhibit 2 Emails 5−1−2015−6−2−2015, # 4 Exhibit 3 M. DelToral Interim Rept 6−24−15, # 5 Exhibit 4 Emails June 5 and June 8, 2015, # 6 Exhibit 5 Emails R. Bair, DelToral Hyde June 25, 2015, # 7 Exhibit 6 Emails June 30 and July 1, 2015, # 8 Exhibit 11−Briefing Paper for Call with MDEQ, 7−21−15, # 9 Exhibit 12 DelToral Final Rept Circulated by T. Hyde, 11−4−2015, # 10 Exhibit 14 Emails, 3−10−2015, # 11 Exhibit 15 T.Hyde Ltr to Flint Resident A. Comer, 3−2−15, # 12 Exhibit 16 J. Crooks email to M. Eisenberg, T. Poy and T. Hyde re Call from Flint resident, 5−15−15, # 13 Exhibit 18 T. Hyde Ltr to Flint resident S. Pumfrey 3−2−15, # 14 Exhibit 20 Call Notes from Call with MDEQ 7−21−15, # 15 Exhibit 21 Notes on Call with MDEQ 7−21−15, # 16 Exhibit 22 Briefing Paper for Call MDEQ 7−21−15, # 17 Exhibit 26 2913 Drinking Water Annual Resource Deployment Plan, FY 2013, # 18 Exhibit 31 Office of Ground Water and Drinking Watger (OGWDW) Memo re LCR Requirements, P. Grfevatt, 11−3−2015, # 19 Exhibit 32 EPA Emergency Admin Order 1−21−16, # 20 Exhibit 37 Baltazar Email, 9−4−15, # 21 Exhibit 44 DelToral Email July 15, 2015; J. Crooks Email 7−9−15, # 22 Exhibit 47 DelToral Email 9−22−15, # 23 Exhibit 51 Gov's Flint Water Advisory Task Force Rept, 3−2016, # 24 Exhibit 52 Final Guidance on Emergency Authority under Section 1431, 9−27−1991, # 25 Exhibit 53 Office of Inspector General (OIG) Mgt Alert, 10−20−16, # 26 Exhibit 63 G. McCarthy Ltr to Gov Snyder re Emergency Order, 1−21−16, # 27 Exhibit 70 Governor's Flint Water Advisory Task Force Timeline 3−2016, # 28 Exhibit 71 R. Bair Email re DelToral instructed to re−write report 7−20−15, # 29 Exhibit 72 NPR Article − High Lead Levels in MI Kids after City Switches Water Source, 9−29−15, # 30 Exhibit 73 Emails, S. Hedman and D, Wallikng 6−30−−7−2−2015, # 31 Exhibit 74 Emails June 29, 2015 to July 15, 2015, # 32 Exhibit 75 Emails DelToral and R. Bair July 7, 2015 to July 9, 2015, # 33 Exhibit 76 B.Wurfel Email July 10, 2015, # 34 Exhibit 77 Emails A. Rosenthal and M. Glasgow July 9−10, 2015; Dr. M. Edwards' commentsd, # 35 Exhibit 78 MI Radio Article, Leaked Internal Memo Shows Fed,. Regulator's Concerns About Lead in Flint Water 7−13−15, # 36 Exhibit 79 MI Radio Article After Blowing Whistle on Flint's Water EPA Rogue Employee Has Been Silent. Until Now Jan 21, 2016, # 37 Exhibit A M. Deltoral Dep Trans Exceerpts 10−12−17, # 38 Exhibit B R.l Bair Dep Trans Excerpts 10/12/17, # 39 Exhibit C T.Hyde Dep Trans Excerpts 10/26/17, # 40 Exhibit D J. Crooks Dep Trans Excerpts 11/15/17) (Hurwitz, Julie) (Entered: 05/15/2018)
TEXT−ONLY ORDER Granting 52 Motion for Leave to File Excess Pages. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 05/16/2018)
54 INDEX of Exhibits re 37 MOTION to Dismiss by All Plaintiffs (Corrected Index of Exhibits) (Attachments: # 1 Exhibit 80−MLive Article "DEQ Replaces Water Official After State Acknowledges 'Mistake' in Flint", 10−19−15, # 2 Exhibit 81−Email: DelToral to EPA Supervisors, 11−17−15) (Hurwitz, Julie) (Entered: 05/22/2018)
55 STIPULATED ORDER to Extend United States' Reply Brief Length by 5 Pages. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/23/2018)
56 REPLY to Response re 37 MOTION to Dismiss for Lack of Subject−Matter Jurisdiction filed by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit 82 In re Yosemite Hantavirus Litig. Jan. 31 2018 Order) (Williams, Michael) (Entered: 06/06/2018)
57 CERTIFICATE OF SERVICE re 54 Exhibit Index, by JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint CORRECTED CERTIFICATE OF SERVICE (Hurwitz, Julie) (Entered: 06/07/2018)
58 NOTICE of Withdrawal of Attorney Bethany J. Henneman for on behalf of UNITED STATES OF AMERICA. (Henneman, Bethany) (Entered: 07/16/2018)
59 ORDER Granting Withdrawal of Attorney Bethany J. Henneman. Signed by District Judge Linda V. Parker. (RLou) (Entered: 07/16/2018)
60 MOTION to Supplement the Record and For Taking Judicial Notice of Public Records by JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint. (Attachments: # 1 Exhibit 83 − EPA Report Dated July 19, 2018) (Rivers, Beth) (Entered: 10/04/2018)

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61 RESPONSE to 60 MOTION to Supplement the Record and For Taking Judicial Notice of Public Records and Memorandum in Support filed by UNITED STATES OF AMERICA. (Williams, Michael) (Entered: 10/18/2018)
62 MOTION For Status Conference by JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint. (Rivers, Beth) (Entered: 01/15/2019)
63 MOTION to Stay re 62 MOTION For Status Conference by UNITED STATES OF AMERICA. (Williams, Michael) (Entered: 01/16/2019)
64 RESPONSE to 62 MOTION For Status Conference and NOTICE of Restoration in Appropriations filed by UNITED STATES OF AMERICA. (Williams, Michael) (Entered: 01/28/2019)
TEXT−ONLY ORDER Granting 62 Motion For Status Conference. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 01/29/2019)
65 NOTICE TO APPEAR: Status Conference set for 2/8/2019 at 11:00 AM before District Judge Linda V. Parker (RLou) (Entered: 01/29/2019)
TEXT−ONLY ORDER Denying as Moot 63 Motion to Stay. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 01/29/2019)
66 NOTICE of Appearance by Emmy L Levens on behalf of JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint. (Levens, Emmy) (Entered: 02/01/2019)
67 NOTICE of Appearance by Jessica B. Weiner on behalf of JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint. (Weiner, Jessica) (Entered: 02/01/2019)
68 NOTICE of Appearance by Theodore J. Leopold on behalf of JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint. (Leopold, Theodore) (Entered: 02/01/2019)
Minute Entry for proceedings before District Judge Linda V. Parker: Status Conference held on 2/8/2019. (Court Reporter: None Present, Not on the Record) (RLou) (Entered: 02/08/2019)
69 STIPULATED ORDER to File a Second Amended Complaint (Second Amended Complaint shall be filed by 2/13/19). Signed by District Judge Linda V. Parker. (Attachments: # 1 Second Amended Complaint) (RLou) (Entered: 02/08/2019)
70 ORDER. Signed by District Judge Linda V. Parker. (RLou) (Entered: 02/08/2019)
71 NOTICE by JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint re 53 Response to Motion,,,,,,,,,,, Notice of Supplemental Authority (Attachments: # 1 Exhibit Guertin Opinion) (Rivers, Beth) (Entered: 02/15/2019)
72 SUPPLEMENTAL BRIEF re 71 Notice (Other) filed by UNITED STATES OF AMERICA. (Williams, Michael) (Entered: 02/25/2019)
73 COMPLAINT Second Amended Complaint filed by JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint against UNITED STATES OF AMERICA. No summons requested. Receipt No: 0645−7139319 − Fee: $ 400. County of 1st Plaintiff: Genesee − County Where Action Arose: Genesee − County of 1st Defendant: Genesee. [Previously dismissed case: No] [Possible companion case(s): Eastern District of Michigan, 5:16−cv−10444, Judge Judge Judith E. Levy] (Attachments: # 1 Exhibit 5) (Pitt, Michael) Modified on 3/7/2019 (DWor). [WRONG EVENT SELECTED] (Entered: 03/06/2019)
74 ORDER. Signed by District Judge Linda V. Parker. (RLou) (Entered: 03/07/2019)
75 AMENDED COMPLAINT Second Amended Complaint filed by JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA Administrative Complaint against UNITED STATES OF AMERICA. NO NEW PARTIES ADDED. (Attachments: # 1 Exhibit 5) (Pitt, Michael) (Entered: 03/07/2019)

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76 OPINION and ORDER. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/18/2019)
77 MOTION To Set Deadline for Motion for Interlocutory Appeal by UNITED STATES OF AMERICA. (Williams, Michael) (Entered: 05/01/2019)
78 ORDER Granting Defendant's 77 Motion to Set Deadline for Motion for Interlocutory Appeal. The deadline for the United States to file either a Motion to Certify the Court's April 18, 2019 decision for Interlocutory Appeal or its Answer is extended to June 7, 2019. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/01/2019)
79 MOTION For Certification of Interlocutory Appeal Under 28 USC 1292(b) by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit Memorandum of Law 9−10−2003, # 2 Exhibit Order 12−17−2004) (Williams, Michael) (Entered: 06/07/2019)
80 STIPULATED ORDER Extending Deadline for Plaintiffs to Respond to 79 MOTION For Certification of Interlocutory Appeal Under 28 USC 1292(b). (Response due by 7/26/2019, Reply due by 8/16/2019) Signed by District Judge Linda V. Parker. (MacKay, K) (Entered: 06/19/2019)
81 MOTION for Withdrawal of Attorney Sarah Williams by UNITED STATES OF AMERICA. (Williams, Sarah) (Entered: 07/23/2019)
TEXT−ONLY ORDER Granting 81 Motion to Withdraw as Attorney. IT IS SO ORDERED. Issued by District Judge Linda V. Parker. (RLou) (Entered: 07/23/2019)
82 STIPULATION AND ORDER Extending Deadline for Plaintiffs to Respond to Defendant's Motion for Certification of Interlocutory Appeal. (Response due by 8/2/2019) Signed by District Judge Linda V. Parker. (EKar) (Entered: 07/24/2019)
83 RESPONSE to 79 MOTION For Certification of Interlocutory Appeal Under 28 USC 1292(b) filed by All Plaintiffs. (Rivers, Beth) (Entered: 08/02/2019)
84 REPLY to Response re 79 MOTION For Certification of Interlocutory Appeal Under 28 USC 1292(b) filed by UNITED STATES OF AMERICA. (Williams, Michael) (Entered: 09/09/2019)
85 [DOCKETING ERROR − INCORRECT TITLE OF DOCUMENT] OPINION and ORDER Denying Defendant's 79 Motion for Certification of Interlocutory Appeal Under 28 U.S.C. § 1292(b). Signed by District Judge Linda V. Parker. (RLou) Modified on 9/27/2019 (RLou). (Main Document 85 replaced on 9/27/2019) (RLou). (Entered: 09/27/2019)
86 NOTICE of Correction re 85 Opinion and Order. (RLou) (Entered: 09/27/2019)
87 OPINION and ORDER Denying Defendant's 79 Motion for Certification of Interlocutory Appeal Under 28 U.S.C. § 1292(b). Signed by District Judge Linda V. Parker. (RLou) (Entered: 09/27/2019)
88 NOTICE TO APPEAR: Status Conference set for 11/15/2019 at 11:00 AM before District Judge Linda V. Parker (RLou) (Entered: 10/22/2019)
89 STIPULATED ORDER Setting Deadline to Answer Second Amended Complaint (Responsive Pleading due by 12/6/2019). Signed by District Judge Linda V. Parker. (RLou) (Entered: 11/05/2019)
Minute Entry for proceedings before District Judge Linda V. Parker: Status Conference held on 11/15/2019. Disposition: By January 15, 2020, the parties shall submit to the Court, the documents that were discussed during the Status Conference. (Court Reporter: None Present, Not on the Record) (RLou) (Entered: 11/15/2019)
90 ANSWER to Amended Complaint with Affirmative Defenses by UNITED STATES OF AMERICA. (Rey, Eric) (Entered: 12/06/2019)
91 CASE MANAGEMENT ORDER NO. 2. Signed by District Judge Linda V. Parker. (SSch) (Entered: 12/19/2019)

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92 Notice to Parties Regarding Consolidated Case: Order of consolidation entered on *12/18/19*. Designated lead case number is *17−11218*. (SSch) (Entered: 12/19/2019)
93 NOTICE by JAN BURGESS, and all 2,959 individuals identified in the Burgess FTCA Administrative Complaint of Screening Pursuant to D.C. Rule of Professional Responsibility 1.11 (Attachments: # 1 Exhibit A) (Weiner, Jessica) (Entered: 01/13/2020)
94 NOTICE by JAN BURGESS, and all 2,959 individuals identified in the Burgess FTCA Administrative Complaint of Screening Pursuant to D.C. Rule of Professional Responsibility 1.11 (Attachments: # 1 Exhibit A) (Weiner, Jessica) (Entered: 01/15/2020)
95 MOTION to Consolidate Cases , MOTION for Extension of Time to File Answer if Case Consolidated by UNITED STATES OF AMERICA. (Attachments: # 1 Exhibit A (Meeks Complaint)) (Rey, Eric) (Entered: 01/17/2020)
96 NOTICE of Appearance by Jason T. Cohen on behalf of UNITED STATES OF AMERICA. (Cohen, Jason) (Entered: 01/23/2020)
97 NOTICE of Appearance by Corey M. Stern on behalf of Aasiyah Meeks. (Stern, Corey) (Entered: 02/04/2020)
Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Status Conference held on 2/4/2020. (Court Reporter: None Present, Not on the Record) (RLou) (Entered: 02/05/2020)
98 STIPULATION AND ORDER Extending Deadlines Regarding the United States of America's 95 MOTION to Consolidate Cases (Response due by 2/7/2020, Reply due by 2/14/2020). Signed by District Judge Linda V. Parker. (RLou) (Entered: 02/05/2020)
99 NOTICE by Aasiyah Meeks of Walters Plaintiffs Motion to Consolidate (Attachments: # 1 Exhibit Walters Plaintiffs Motion to Consolidate, # 2 Exhibit Memorandum of Law in Support of Walters Plaintiffs Motion to Consolidate) (Stern, Corey) (Entered: 02/07/2020)
100 RESPONSE to 95 MOTION to Consolidate Cases MOTION for Extension of Time to File Answer if Case Consolidated filed by Aasiyah Meeks. (Attachments: # 1 Exhibit Exhibit A − Walters Motion to Consolidate) (Stern, Corey) (Entered: 02/07/2020)
101 EXHIBIT B − Memorandum of Law in Support of Walters Motion to Consolidate re 100 Response to Motion, by Aasiyah Meeks (Stern, Corey) (Entered: 02/07/2020)
102 REPLY to Response re 95 MOTION to Consolidate Cases MOTION for Extension of Time to File Answer if Case Consolidated filed by UNITED STATES OF AMERICA. (Rey, Eric) (Entered: 02/11/2020)
103 ORDER. (Status Conference set for 3/2/2020 at 2:00 PM before District Judge Linda V. Parker). Signed by District Judge Linda V. Parker. (RLou) (Entered: 02/12/2020)
***Responses to the Court's questions that are referenced in the 103 Order, shall be submitted by 2/19/2020. (RLou) (Entered: 02/12/2020)
104 ORDER of Withdrawal of Appearance of Attorney Thomas G. Ward. Signed by District Judge Linda V. Parker. (RLou) (Entered: 02/14/2020)
105 NOTICE by UNITED STATES OF AMERICA re 103 Order, Set Deadlines/Hearings (United States' Response to the Court's February 12, 2020 Questions) (Rey, Eric) (Entered: 02/19/2020)
106 NOTICE by JAN BURGESS, and all 2,959 individuals identified in the Burgess FTCA Administrative Complaint re 103 Order, Set Deadlines/Hearings BURGESS PLAINTIFFS RESPONSE TO ORDER OF FEBRUARY 12, 2020 (DKT. 103) (Rivers, Beth) (Entered: 02/19/2020)

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107 MOTION of Amici Curiae for Leave to Submit Attached Filing from Walters v. City of Flint by Veolia North America, Inc., Veolia North America, LLC, Veolia Water North America Operating Services, LLC. (Attachments: # 1 Document Continuation) (Devine, Alaina) (Entered: 02/19/2020)
108 NOTICE by William WILLIAM THOMAS, and all 1,923 individuals identified in the Thomas FTCA administrative Complaint re 103 Order, Set Deadlines/Hearings Thomas Plaintiffs Response to the Court's Order dated February 12, 2020 (Shkolnik, Hunter) (Entered: 02/19/2020)
109 MOTION for Leave to File Attached Filing from Walters v. City of Flint (Amici Curiae) by Lockwood, Andrews & Newman, Inc., Lockwood, Andrews & Newman, P.C., Leo A Daly Company. (Attachments: # 1 Exhibit) (Kent, David) (Entered: 02/19/2020)
110 NOTICE by UNITED STATES OF AMERICA re 99 Notice (Other), of United States' Opposition to Walters Plaintiffs' Motion to Consolidate (Attachments: # 1 (Filed Opposition to Motion to Consolidate)) (Rey, Eric) (Entered: 02/21/2020)
Minute Entry for proceedings before District Judge Linda V. Parker: Status Conference held on 3/2/2020. Disposition: Addendum to Case Management Order 3 is due by 3/9/2020. (Court Reporter: None Present, Not on the Record) (RLou) (Entered: 03/02/2020)
111 STIPULATED CASE MANAGEMENT ORDER No. 3. Signed by District Judge Linda V. Parker. (RLou) (Entered: 03/02/2020)
112 STIPULATED DISCOVERY COORDINATION PROTOCOL ORDER. Signed by District Judge Linda V. Parker. (RLou) (Entered: 03/03/2020)
113 ORDER consolidating cases 17−11218 and 20−10441. Signed by District Judge Linda V. Parker. (DPer) (Entered: 03/04/2020)
114 Notice to Parties Regarding Consolidated Case: Order of consolidation entered on *03/03/20*. Designated lead case number is *17−11218*. (DPer) (Entered: 03/04/2020)
115 NOTICE of Non−Party Fault by UNITED STATES OF AMERICA (Rey, Eric) (Entered: 03/04/2020)
116 STIPULATED ADDENDUM TO CASE MANAGEMENT ORDER No. 3. Signed by District Judge Linda V. Parker. (RLou) (Entered: 03/09/2020)
117 NOTICE by William WILLIAM THOMAS, and all 1,923 individuals identified in the Thomas FTCA administrative Complaint PLAINTIFFS NOTICE OF PROPOSED FTCA PLAINTIFFS LIAISON COUNSEL (Napoli, Paul) (Entered: 03/16/2020)
118 STIPULATED Special Master order. Signed by District Judge Linda V. Parker. (DPer) (Entered: 03/25/2020)
119 STIPULATED ORDER Extending Deadline for Plaintiffs to Submit Initial Disclosures. Signed by District Judge Linda V. Parker. (RLou) (Entered: 03/31/2020)
120 NOTICE by UNITED STATES OF AMERICA of Filing Stipulated Discovery Orders (Cohen, Jason) (Entered: 04/07/2020)
121 STIPULATED PROTECTIVE ORDER Regarding Confidential Information. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/08/2020)
122 STIPULATED Clawback Agreement and Federal Rule of Evidence 502(d) Order. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/08/2020)
123 Document Production and ESI Protocol. Signed by District Judge Linda V. Parker. (RLou) (Entered: 04/08/2020)
124 DECLARATION by Deborah E. Greenspan filed by Deborah E. Greenspan (Attachments: # 1 Exhibit A − Curriculum Vitae) (Greenspan, Deborah) (Entered: 04/09/2020)

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Minute Entry for proceedings before District Judge Linda V. Parker: Telephonic Conference Regarding the Court's inquiry held on 4/13/2020. (Court Reporter: None Present, Not on the Record) (RLou) (Entered: 04/13/2020)
125 OPINION and ORDER Denying as Moot 95 Motion to Consolidate Cases, 107 Motion of Amici Curiae, and 109 Motion for Leave to File. Signed by District Judge Linda V. Parker. (RLou) (Entered: 05/01/2020)
126 NOTICE of Appearance by Timothy B. Walthall on behalf of UNITED STATES OF AMERICA. (Walthall, Timothy) (Entered: 05/14/2020)
127 NOTICE TO APPEAR BY TELEPHONE for Plaintiffs' liaison counsel and the Government: Status Conference set for 6/19/2020 at 11:00 AM before District Judge Linda V. Parker. (RLou) (Entered: 05/20/2020)
128 NOTICE of Appearance by William Quinn on behalf of UNITED STATES OF AMERICA. (Quinn, William) (Entered: 05/20/2020)
129 AGENDA: June 19, 2020 Status Conference. (RLou) (Entered: 06/16/2020)

 
 Case 4:17-cv-11218-LVP-RSW ECF No. 1 filed 04/18/17 PageID.1 Page 1 of 37

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAN BURGESS, and all 1,703 individuals identified in the Burgess FTCA administrative Complaint,
Plaintiffs,
vs.

Hon.__________________ Mag. __________________

UNITED STATES OF AMERICA,
Defendant.
Michael L. Pitt (P24429) Cary S. McGehee (P42318) Beth M. Rivers (P33614) Peggy G. Pitt (P31407) Pitt McGehee Palmer & Rivers, PC Attorneys for Plaintiffs 117 W. Fourth Street, Suite 200 Royal Oak, MI 48067 (248) 398-9800 mpitt@pittlawpc.com cmcgehee@pittlawpc.com brivers@pittlawpc.com ppitt@pittlawpc.com
William Goodman P14173 Julie H. Hurwitz P34720 Goodman & Hurwitz, PC Attorneys for Plaintiffs 1394 E. Jefferson Ave. Detroit, MI 48207 (313) 567-6170 bgoodman@goodmanhurwitz.com

Trachelle C. Young P63330 Trachelle C Young & Associates PLLC Attorneys for Plaintiffs 2501 N Saginaw St Flint, MI 48505-4443 (810) 239-6302 trachelleyoung@gmail.com
Deborah A. LaBelle (P31595) Law Offices of Deborah A. LaBelle Attorneys for Plaintiffs 221 N. Main Street, Suite 300 Ann Arbor, MI 48104 (734) 996-5620 deblabeIle@aol.com
Teresa Caine Bingman (P56807) The Law Offices of Teresa A. Bingman Attorneys for Plaintiff 1425 Ambassador Drive Okemos, MI 48864 (877) 957-7077
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jhurwitz@goodmanhurwitz.com

tbingman@bingmanlaw.com

Brian McKeen P34123

Cynthia M. Lindsey (P37575)

McKEEN & ASSOCIATES, PC

Shermane Sealey (P32851)

Attorneys for Plaintiffs

Cynthia M. Lindsey & Associates

645 Griswold Street, Suite 4200

Attorneys for Plaintiffs

Detroit, Michigan 48226

8900 E. Jefferson Avenue, Suite 612

(313) 961-4400

Detroit, MI 48214

BjMcKeen@mckeenassociates.com

(248) 766-0797

cynthia@cmlindseylaw.com

shermane@cmlindseylaw.com

__________________________________________________________________

COMPLAINT

Introduction

1. This action is a joinder action brought by all individuals identified

administratively as Federal Tort Claims (“FTCA”) CLAIMANTS

(“CLAIMANTS”) who experienced personal and property damage as a result of the

negligence of the United States Environmental Protection Agency (“EPA”) in its

mishandling of the Flint Water Crisis. This action for personal and property damages

is brought against the United States of America (“USA”) under the FTCA, 28 U.S.C.

§ 2671 et seq.

The EPA failed to follow several specific agency mandates and directives

governing its conduct which resulted in injury to the CLAIMANTS. Upon notice of

a contaminant in the water system which presents a substantial and imminent

danger, the EPA is required to first determine whether the state and local agency is

taking timely action protective of public health. If timely and protective action is

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not being taken, the EPA is required to bring a Section 1431 emergency action. However, despite notice of the danger as early as October 2014, the EPA failed to take the mandatory steps to determine that Michigan and Flint authorities were not taking appropriate action to protect the public from toxic water and failed to file the emergency Section 1431 action until January 2016.
In addition, the EPA is required to provide advice and technical assistance to states and local providers which are not in compliance with the requirements of the Safe Water Drinking Act (“SWDA”) and if compliance is not achieved in thirty days, the EPA is required to issue an order or commence a civil action to obtain compliance. The EPA took none of those mandatory steps. The failure to fulfill these mandatory duties constitute violations of the FTCA.
An administrative claim for payment of personal and property damage in the amount of $722.4 million has been pending before the EPA for more than 6 months. The EPA has neither accepted nor denied the administrative claim.
Jurisdiction, Venue, Parties and Exhaustion of Administrative Remedies 2. This Court has subject matter jurisdiction over the USA sued pursuant
to the FTCA, 28 U.S.C. § 1346(b) (1). 3. Venue is proper in cases involving tort claims against the USA where
the Plaintiff resides or where the act or omission complained of occurred. 28 U.S.C.§ 1402(b); 32 C.F.R. 750.32(a).
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4. Plaintiff resides in this Judicial District and the acts and omissions complained of occurred in this Judicial District.
5. On April 25, 2016, Burgess through her counsel individually and as representative for 523 individuals submitted a claim to the EPA for personal and property damages arising out of the EPA’s negligent handling of the Flint Water Crisis. Each of the 523 individuals executed a written consent for representation by Burgess’ counsel. Proof of consent for representation has been supplied to the EPA. This group of 523 individuals, identified in Exhibit 1, are described as Batch 1 CLAIMANTS.
6. On June 6, 2016, Burgess through her counsel individually and as representative for 228 individuals submitted an amended claim to the EPA for personal and property damages arising out of the EPA’s negligent handling of the Flint Water Crisis. Each of the 228 individuals executed a written consent for representation by Burgess’ counsel. Proof of consent for representation has been supplied to the EPA. This group of 228 individuals, identified in Exhibit 2, are described as Batch 2 CLAIMANTS.
7. On October 14, 2016, Burgess through her counsel individually and as representative for 956 individuals submitted a second amended claim to the EPA for personal and property damages arising out of the EPA’s negligent handling of the Flint Water Crisis. Each of the 956 individuals executed a written consent for
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representation by Burgess’s counsel. Proof of consent for representation has been supplied to the EPA. This group of 956 individuals are identified in Exhibit 3 are described as Batch 3 CLAIMANTS.
8. More than 6 months has elapsed since the filing of the Claim. The EPA has not issued a Final Decision.
9. Burgess and the other 1,703 individuals have exhausted all administrative remedies and pursuant to the FTCA are now entitled to proceed with this action in the United State District Court. 28 U.S.C. § 2675(a).
Statement of Facts 10. This lawsuit against the EPA arises out of the environmental catastrophe known world-wide as the “Flint Water Crisis.” 11. On April 25, 2014, the Michigan Department of Environmental Quality (“MDEQ”) authorized the City of Flint to distribute to its more than 30,000 customers drinking water pumped from the highly corrosive, polluted and toxic Flint River. 12. For almost 50 years, Flint water users enjoyed plentiful, clean fresh water purchased from the Detroit Water and Sewage Department (“DWSD”). The water received from DWSD included a “corrosion–inhibiting additive, which lined pipes and connections to minimize the level of lead leaching into Drinking water.” Management Alert: Drinking Water Contamination in Flint, Michigan,
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Demonstrates a Need to Clarify EPA Authority to Issue Emergency Orders to Protect the Public, Office of Inspector General, United State Environmental Protection Agency, Office of Inspector General, October 20, 2016, p 1. (“OIG”)
13. Flint Emergency Managers Edward Kurtz and Darnell Earley, with the approval of Michigan’s Governor and State Treasurer, discontinued Flint’s water service from DWSD and approved use of the Flint River as an interim source of water until an alternative water pipeline was completed in late 2016 or 2017.
14. The Flint River water was toxic and 19 times more corrosive than the DWSD supplied water. The Flint River water required substantial corrosion control treatment in order for it to be safe and useable because many Flint homes and businesses have lead service lines and plumbing making them more susceptible to high levels of corrosion and the leaching of lead.
15. It is an undisputed fact that the MDEQ and Flint failed or refused to use corrosion control during the entire time that Flint River Water was supplied to Flint water users (April 25, 2014 to October 16, 2015). Flint water users were exposed to the toxic and highly corrosive Flint River water for 539 days or 1 year, 5 months and 21 days. OIG, p 1.
16. On October 16, 2015, by order of the Governor, the Flint water system was re-connected to the DWSD system.
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17. Although DWSD water was restored to the Flint water system, the 539 days of exposure to highly corrosive Flint River water ruined the lead service lines, hot water tanks and other plumbing apparatus.
18. As of November 25, 2016, the two and one half year anniversary of the switch to the Flint River, the water delivered to the people of Flint remains unsafe to drink, use for cooking or use for bathing.
19. Throughout the spring and summer of 2014, the water supplied to Flint water users was malodorous, tasted bad and appeared to be cloudy with floating dirt or metallic particles. OIG, p 1.
20. Flint water users received a notice in August 2014 of an acute coliform Maximum Contaminant Level (MCL), a monthly coliform MCL violation in August 2014, and a monthly coliform MCL violation in September 2014.
21. Burgess, as a Flint home owner and water user, made numerous complaints to the state and city officials about the poor water quality she was experiencing. Neither the state nor the city gave her satisfactory information about how and when the water quality would be improved.
22. Burgess determined that she was living in an environmental crisis and turned to the EPA for assistance.
23. Burgess discovered on the EPA’s website a section entitled “Enforcement.” The web page gave her instructions on how to report violations of
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environmental laws and regulations. The Enforcement page stated that if she elected
to provide contact information with her report, that information may be “shared by
EPA with appropriate administrative, law enforcement, and judicial entities engaged
in investigating or adjudicating the tip or complaint.”
24. On October 14, 2014, Burgess presented to the EPA her complaint and
requested an investigation. She wrote:
Tip or Complaint: Earlier this year, the City of Flint, changed its water supply from the City of Detroit (Lake Huron) to the Flint River. This river has a very long history of pollution. Since this change, our drinking water has tripled in cost and the quality varies daily. Some days it smells like an over-chlorinated swimming pool; other days, like pond scum. It is often brown in color and frequently has visible particles floating in it. We’ve been under several boil water advisories due to e-coli contamination. Just this morning our local paper reports that General Motors Engine plant has shut off Flint River water to the plant due to the over-chlorination and the fears that the water will cause corrosion. http://www.mlive.com/news/flint/index.ssf/2014/10/general_motors _wont_use_flint.html#cmpid=nsltr_stryheadline. People in Flint have had to resort to buying bottled water or having purification systems installed in their homes. Some residents have even had private wells dug. The water is not safe to drink, cook or wash dishes with, or even give to pets. We worry every time we shower. The City of Flint is still very economically depressed and most citizens cannot afford to do anything other than use the river water. Many of them have NO water at all due to the extremely high water bills. There is reasonable suspicion that reports have been falsified. Some residents have had water tested privately and the results are not even close to those reported by the City. Calls to the City and State have resulted in no action whatsoever.
Violation Still Occurring? Yes
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State DEP/DEQ/DEM Notified? No
25. On October 23, 2014, EPA representative Jennifer Crooks (Crooks) responded to Burgess’ email stating in part that “the Flint River water is a different quality than the Lake Huron raw water; and requires additional treatment to ensure an acceptable quality drinking water.” She emphasized that the poor quality water was only a temporary problem because Flint planned to join the Karegnondi Water Authority (KWA) in 2016. She said that the “MDEQ is aware of the multiple complaints from citizens and is working closely with the Flint Water Department to ensure the distribution system and the water treatment processes work more efficiently and more effectively.”
26. Burgess heard nothing more from the EPA until April 8, 2016, when investigators of the EPA’s Office of Inspector General contacted her for an interview regarding her report. Ms. Burgess met with the EPA investigators on April 9, 2016, for about 1.5 hours.
27. At the time of interview, the EPA investigator advised Burgess and her counsel that the EPA had received 120 complaints or notices of environmental violations and most, if not all, had not been investigated.
28. The duration of time between Burgess’ report of an environmental violation and the opening of an investigation was 543 days or 1 year, 5 months and 26 days.
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29. In January 2015, Flint home owner LeeAnn Walters called the EPA regarding water issues that she was experiencing at her Flint home. She informed the EPA that she and her family members were becoming physically ill from exposure to the water coming from her tap.
30. On February 26, 2015, Crooks wrote an email to MDEQ and EPA representatives. Crooks noted that Walters complained of “black sediment in her water.” Crooks noted that the iron contamination was so high that the testing instrumentation could not measure it. She went on to say:
“But, because the iron levels were so high [Michael Glasgow, Flint Utilities Administrator], suggested testing for lead and copper. WOW!!!! Did he find the LEAD! 104 ppb [parts per billion] She has 2 children under the age of 3….Big worries here ….
-----------------------I think Lead is a good indication that 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.”
31. In a second email on February 26, 2015, Crooks stated that Miguel Del Toral (Del Toral) of the EPA is of the opinion that the “black sediment” in Walters water was actually lead. She stated that “Miguel is wondering if Flint is feeding
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phosphates. Flint must have Optimal Corrosion Control Treatment-is it phosphates?”
32. Crooks continued: “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?”
33. Crooks in an email, dated February 27, 2015, offered to MDEQ representative Stephen Busch (Busch) expert advice through “our expert,” Mike Schrock at EPA Cincinnati Research.
34. On February 27, 2015, MDEQ representative Busch advised Del Toral and Crooks that “[MDEQ] will take the [offer of expert assistance] under consideration.” He further stated that Flint has an “Optimized Corrosion Control Program.”
35. Del Toral, on February 27, 2015, advised Crooks that this is a very dangerous situation. He stated that “the particulate can contain very high concentrations of lead (hundreds of thousands of ppb Pb) which is much higher concentration than lead paint, so even small particles can result in high lead values.”
36. By late January 2015, the news media regularly reported the widespread water quality issues and resulting illnesses occurring in Flint. A casual internet search in January, February or March of 2015, would have produced scores of news
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reports about the environmental crisis developing in Flint. The EPA was monitoring these media reports.
37. According to the OIG Report, in February, 2015, the “EPA Region 5 received the first Flint drinking water distribution system lead sampling test result, indicating a requirement of corrosion control.” OIG, p 4.
38. On March 3, 2015, Flint collected a follow-up sample at the Walters home. This time the reading was 397 ppb (more than 20 times the EPA “Action Level” of 15 ppb).
39. On March 18, 2015, Walters informed Crooks of the March 3rd reading. Crooks asked Walters to fax her the report. She stated “any thoughts on how to respond to her? I’m running out of ideas.”
40. By March of 2015, Del Toral was communicating with Region 5 EPA personnel that there was a serious public health crisis developing in Flint caused by contaminated water.
41. Walters also provided the EPA with reports of elevated blood lead levels for her children proving that consuming lead-laced water had poisoned her children.
42. In early April 2015, Walters called Dr. Marc Edwards (Dr. Edwards), an environmental engineering professor from Virginia Tech University, to come to
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Flint to assist to address the water contamination problems. Dr. Edwards, in April 2015, took water samples and shared his test results with the EPA.
43. On April 23, 2015, Del Toral wrote an email to the MDEQ and asked one question: “What’s Flint doing now (post Detroit) for corrosion control treatment?”
44. On April 24, 2015, the MDEQ wrote back that “Flint is not practicing corrosion control treatment at the Water Treatment Plant (WTP).”
45. On April 25, 2015, Del Toral prepared an email to the MDEQ and his EPA colleagues stating “given the very high lead levels found at one home and the pre-flushing happening at Flint, I’m worried that the whole town may have much higher lead levels than the compliance indicated, since they are using pre-flushing ahead of their compliance sampling.” (Emphasis added).
46. On April 27, 2015, Del Toral travelled to the Walters home to investigate the circumstances causing the elevated lead readings. The EPA also tested neighboring homes. Ultimately, testing and investigation determined that the city-owned service line of about 25 feet running from the water main to the external shut off valve was made of lead and a source of the lead contamination. In addition, the Walters home had galvanized pipe which became “seeded” with lead due to corrosive water. According to Del Toral, the lack of corrosion control treatment was a major contributing cause for the release of lead into the Walter’s water system.
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47. On May 6, 2015, the EPA returned to the Walters home to supervise the service line replacement activities.
48. By June 2015, “EPA Region 5 had information that the city of Flint exceeded the lead level at which corrosion control was required, and that Flint was not using a corrosion inhibitor. EPA Region 5 also had information that at least four homes had concentrations of lead in household drinking water above the action level of 15 parts per billion.” OIG, p 5.
49. On June 10, 2015, the EPA offered additional technical assistance on response managing the different water quality issues in Flint, including the presence of lead in the drinking water.
50. On June 24, 2015, Del Toral prepared a memorandum entitled “High Lead Levels in Flint Michigan-Interim Report (“Del Toral Report”).” The Del Toral Report stated that “a major concern from a public health standpoint is the absence of corrosion control treatment in the City of Flint for mitigating lead and copper levels in the drinking water.” He added that “the lack of mitigating treatment is especially concerning as the high lead levels will likely not be reflected in the City of Flint’s compliance samples due to the sampling procedures used by the City of Flint for collecting compliance samples.”
51. On June 25, 2015, Rita Bair (“Bair”), Branch Chief Region 5, Ground Water and Drinking Section, responded to Del Toral’s Interim Report wanting to
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know in an email why Del Toral characterized the lead problem in Flint as
“widespread.”
52. Del Toral responded to Bair via an email on Thursday June 25, 2015,
stating that:
“The widespread high lead is my judgement based on a couple of decades of working with lead issues and I stand by it despite the limited data set from Flint. A simple application of scientific principles to the circumstances in Flint along with the limited data are enough to know that there is a problem there. They have had no corrosion control treatment in place for over a year now and they have lead service lines. It's just basic chemistry on lead solubility. You will have high lead leaching into the water where you are doing nothing to mitigate that. We don't need to drop a bowling ball off every building in every town to know that it will fall to the ground in all of these places….The only reason we don't have more data is because the City of Flint is flushing away the evidence before measuring for it…there is zero chance or close to zero chance that you will ever capture any of the high lead…. the high lead levels we are seeing in Flint are mainly particulate lead, which is released sporadically in most cases, so unfortunately for Flint in their attempts to avoid capturing lead, these particles are being captured despite their attempts not to capture lead. 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 harmed. At a MINIMUM, the City should be warning residents about the high lead, not hiding it telling them that there is no lead in the water. To me that borders on criminal neglect. The only people that question the science are the ones that have a vested interest in not finding lead. When we look, we find it. When they look, they either don't find it or if they find it, they dismiss it as the resident's plumbing or use some other fabricated reason .(Emphasis added)
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53. Sometime between June 24, 2015 and June 30, 2015, Del Toral provided his Interim Report to Walters who shared it with Curt Guyette (Guyette) an investigative reporter with the ACLU of Michigan.
54. Guyette confirmed the accuracy of the Del Toral Report by interviewing Del Toral who confirmed that the assertions contained in the Report were accurate.
55. Guyette then approached Flint for comment. On June 30, 2015, Mayor Dwayne Walling (Walling) notified EPA Region 5 Director Dr. Susan Hedman (Hedman) that an EPA Region 5 staff member was speaking publicly about the Flint environmental crisis.
56. On July 1, 2015, Hedman informed Walling that the Del Toral Report “should not have been released outside the agency.” She recommended to Walling that Flint retain two EPA experts on lead and drinking water and that Flint follow the lead of the MDEQ. Walling asked Hedman to advise the ACLU that Flint should follow the advice of the MDEQ.
57. On July 2, 2015, Hedman said to Walling that “I am not inclined to have any further communication with the ACLU representative.” She told Walling that he could tell Guyette that what he was given was a preliminary draft and that it would be premature to draw any conclusions based on that draft.”
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58. On July 9, 2015, Michigan media outlets raised the serious environmental and public health issues discussed in the Del Toral Report---the serious issues which had been well known to the EPA from January, 2015. The threat to the public health of the citizens of Flint became nationwide news.
59. On July 10, 2015, in response to the media reports of a public health crisis in Flint, Hedman issued a press statement which stated in part that the “EPA will work with the Michigan DEQ and the City of Flint to verify and assess the extent of lead contamination issues and to ensure that Flint’s drinking water meets federal standards.”
60. On July 14, 2015, Guyette asked the EPA if phosphate should be used as corrosion control. Although the answer to this question is an unequivocal “YES,” the EPA provided an evasive and convoluted response in an apparent desire to protect the MDEQ. When Guyette asked the EPA to comment on whether the sampling methods were minimizing the lead readings, the EPA again provided an evasive response.
61. On July 21, 2015, EPA representatives had a conference call with MDEQ representatives. The MDEQ argued with the EPA about the necessity of immediate corrosion control treatment in light of what it alleged was “compliant sampling.” The EPA was concerned about the validity of the MDEQ position, because the EPA had doubts as to whether the sampling was done properly.
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62. At the July 21, 2015 meeting, the EPA informed the MDEQ that Flint should be instructed to “start corrosion control treatment as soon as possible.” The MDEQ acknowledged that it had already been in contact with the EPA’s experts (Lytle and Shock). The EPA did not establish any deadlines for the commencement of corrosion control.
63. On August 10, 2015, EPA representatives asked the MDEQ for an update on the status of the corrosion control treatment. No information was forthcoming.
64. On August 17, 2015, MDEQ sent a letter to Flint recommending that Flint implement corrosion control treatment as soon as possible, but no later than January 1, 2016, and to fully optimize its treatment within six months.
65. On August 28, 2015, the EPA asked the MDEQ to provide Flint’s corrosion control compliance plan.
66. On August 31, 2015, the MDEQ disputed that corrosion control was necessary because its sampling establishes compliance.
67. On August 31, 2015, Dr. Edwards published the results of his water testing and reported that 20% of the samples were over the 15 ppb EPA Action Level. Dr. Edwards’ report showed that 42% of the tested Flint homes had levels of 5 ppb or higher.
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68. On August 31, 2015, the EPA and MDEQ engaged in a conference call to respond to Dr. Edwards’ report of an emerging major public health crisis. The EPA suggested that the participants could discredit Dr. Edwards’ findings because his labs were not “certified.” The EPA noted that Dr. Edwards’ website “is putting added pressure on the MDEQ and EPA to ensure that Flint addresses their lack of optimized corrosion control treatment in an expedited manner in order to protect the residents from exposure to high lead levels.” The EPA acknowledged in this call that “to delay installation of corrosion control treatment in Flint would likely cause even higher levels of lead over time as Flint’s many lead service lines are continuously in contact with corrosive water.”
69. In September 2015, 11 months after receipt of the Burgess complaint, EPA Region 5 first briefed the EPA Headquarters’ Office of Enforcement and Compliance Assurance (“OECA”) about Flint’s water crisis.
70. The OECA immediately advised the Region take Safe Drinking Water Act (“SDWA”) Section 1431 action (Emergency Administrative Order). However, Region 5 did not issue an Emergency Administrative Order, as directed by OECA, until January 21, 2016.
71. On September 3, 2015, media reports indicated that Dr. Edwards’ reports showed that there is an immediate public health crisis at hand. The media reported that the highly corrosive Flint River water was causing lead contamination
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in Flint homes. The media reported that the corrosion control plan would be implemented in January, 2016.
72. On September 9, 2015, Jessica Dupnack (Dupnack) of ABC Channel 12 asked the EPA if “there is any warning to citizens about drinking the water?” Peter Cassell (Cassell), Press Officer of the EPA, misleadingly stated that the “lead monitoring shows Flint has not exceeded the lead action level .…” Cassell further added that “Flint recently accepted EPA’s offer to provide technical assistance to the City and MDEQ .…”
73. Later that day, Dupnack asked Cassell to comment on the disparity between Flint’s position (the City is in compliance) and Dr. Edwards’ position (the City testing is invalid). She asked if the EPA’s position is that “every single home falls below 15 ppb?” Cassell evaded the question by responding “I’m not sure how the sampling differs between the City of Flint and Virginia Tech and can’t comment on that, specifically.”
74. On September 9, 2015, Congressman Dan Kildee asked the EPA: a. if the findings in the Del Toral Report were accurate; b. if there was a public health emergency; c. when will the EPA tell citizens about the public health concerns; and d. most importantly, is the water safe?
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75. On September 15, 2015, Susan Hedman provided a vague response to Congressman Kildee’s correspondence. She did not address any issues that Kildee had raised regarding the accuracy of the Del Toral report.
76. On September 11, 2015, Crooks wrote to MDEQ representatives and stated: “Just to clarify; on our call, I wanted to remind you that Miguel’s report had DEQ cc’d. So if the Legislature or whoever might say you all were cc’d, you can truthfully respond that it was EPA’s request that the report not be sent to the ccs. Consequently, you all never received the report from Miguel.” Crooks was fully aware that the MDEQ representatives had received the report, not from the EPA but rather from the public media when Guyette published his story about the Del Toral report.
77. On September 14, 2015, Debbie Baltazar, Water Division Branch Chief for EPA Region 5, wrote a disturbing email, which stated that “perhaps [Hedman] already knows all of this, but I am not sure Flint is the community we want to go out on limb for.”
78. On September 18, 2015, EPA Director of Water Division, Tinka Hyde, made a formal request for EPA experts Lytle and Schock to be assigned to Flint to provide technical assistance.
79. On September 20, 2015, Dr. Edwards sent an email to Lytle and Schock and other EPA officials. In this email, Dr. Edwards made a strong case that the
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Flint/MDEQ prior sampling should be rejected as non-compliant with basic testing
protocol. He completed his communication by pointing out emphatically that:
“1) FLINT HAS LOTS OF LEAD PIPE, NO CORROSION CONTROL TREATMENT, AND HAS NO LEGITIMATE LCR TESTING FOR AT LEAST A YEAR.
2) AMONGST LOW INCOME INFANTS, BREAST FEEDING RATES ARE LOWER, AND FORMULA USE IS HIGHER. MANY FLINT RESIDENTS CANNOT AFFORD TO FLUSH DUE TO HIGH WATER RATES, THEY CANNOT AFFORD BOTTLED WATER. THIS IS AN UNPRECEDENTED SITUATION AND EPA NEEDS TO TAKE THIS SERIOUSLY, NOW.
3) WE HAVE ONE CHILD WITH ELEVATED BLOOD LEAD ALREADY….IN FACT, THAT IS THE ONLY REASON WE KNOW ABOUT ANY OF THE ABOVE.
4) MDEQ IS STILL PUBLICLY INSISTING FLINT WATER HAS TESTED SAFE, IS SAFE, AND THAT FLINT HAS NO VIOLATIONS OF ANY SORT.” (Emphasis in text)
80. Dr. Edwards continued: “I believe that someone at HQ or in R5 should
immediately take decisive action on this issue to protect the public.”
81. On September 21, 2015, Dr. Edwards published on his website his
advice to Flint water users: “Drink or cook with the water only if a proper filter is
used and flushing for 5 minutes before the water is used for drinking or cooking. Dr.
Edwards shared this information with the EPA. The EPA responded by stating that
the agency is “looking into the information you have provided.” Elected Officials
met with EPA and MDEQ representatives to review the situation and options.
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82. On September 21, 2015, Dr. Mona Hanna-Attisha presented her study of elevated blood lead levels for children in Flint to Walling, Natasha Henderson, City Administrator and Howard Croft, Director of Flint Public works. In her report, Dr. Hanna-Attisha documented increases which coincided with the exposure to the Flint River water. Dr. Edwards shared this information with the EPA.
83. Dr. Edwards also informed the EPA that Dr. Hanna-Attisha reported, that the EPA had given the City of Flint a “blessing that they were in compliance and there was no corrosivity” issue. Dr. Hanna-Attisha pushed for a health advisory to be published to the citizens of Flint.
84. On September 22, 2015, Dr. Edwards wrote an email to the EPA stating:
MDEQ will go to their graves insisting Flint has met all Federal LCR standards…higher numbers of EBL kids be damned. They are also telling people that EPA has said that there is no absolutely no corrosion problem in Flint water.
85. On September 24, 2015, Dr. Mona Hanna-Attisha held a press conference to release her study and recommendations. Her position was dramatic: every child in Flint is presumed to have ingested lead and has been harmed by this toxic metal.
86. On September 25, 2015, the City of Flint issued a lead advisory which states in part:
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The City of Flint is issuing a lead advisory for residents to be aware of lead levels in drinking water after hearing concerns from the medical community. While the City is in full compliance with the Federal Safe Drinking Water Act, this information is being shared as part of a public awareness campaign to ensure that everyone takes note that no level of lead is considered safe.
87. On September 27, 2015, Hedman called MDEQ Director Dan Wyant and discussed the need for expedited implementation of corrosion control treatment.
88. On October 1, 2015, the Genesee County Health Department issued a “Do Not Drink the Water” Advisory. The Natural Resources Defense Council on behalf of Dr. Edwards, Coalition for Clean Water, and Concerned Pastors for Social Action and other interested groups and individuals filed a Petition for Emergency Action against the EPA to force the EPA to take action to abate the imminent and substantial endangerment to the health of Flint residents.
89. On October 8, 2015, the Governor announced that he had ordered the restoration of DWSD water to the Flint water system.
90. On November 4, 2015, the Del Toral Report was finalized. The report noted that officials were implementing many of the recommendations contained in the Interim Report (Flint was switched back to Detroit water, filters were provided to residents and additional corrosion control was to be implemented).
91. On January 16, 2016, the Governor declared a state of emergency.
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92. On January 21, 2016, the EPA issued its Emergency Administrative
Order pursuant to Section 1431 of the Safe Drinking Water Act, 42 U.S.C.§ 300i
stating in part:
The presence of lead in the City water is principally due to lack of corrosion control treatment after the City’s switch to the Flint River as a source in April 2014. The river’s water was corrosive and removed protective coating in the system. This allowed lead to leach into the drinking water, which can continue until the system’s treatment is optimized. Paragraph 25 of Complaint. The City, MDEQ and the State have failed to take adequate measures to protect public health….there continue to be delays in responding to critical EPA recommendations…the EPA remains concerned that the City lacks the professional expertise and resources needed to carry out the recommended actions and to safely manage the City’s PWS. Paragraph 34 of Complaint. 93. On March 17, 2016, EPA Administrator McCarthy testified before
Congress. She appeared before House Oversight and Government Reform
Committee and admitted that the EPA tried but could not achieve corrosion control
in a timely manner. Chairman Representative Jason Chaffetz asked her: “when did
you know they [MDEQ] didn’t do [corrosion control]?” McCarthy said that:
[W]e [EPA] knew on July 21st of a systemic problem. The state [MDEQ] agreed the next day and then all they did was slow walk [corrosion control]. That’s why we had to do it the way we did. I wished we had gone further. I wish we had gone farther. I wished we had yelled from the tree tops but there is no way that my agency created this problem or there was ambiguity in the law that wouldn’t have done the same that the governor said. Don’t put people at risk just because we couldn’t figure out in the life of us, in our guidance, we never thought anybody goes from a treated system to an untreated system and
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not treat it [with corrosion control ]. I didn’t think we ever had to say that because I never thought anyone would. That’s where we are today.
94. On October 20, 2016, the OIG report was issued which stated in part
that:
“EPA Region 5 had the authority and sufficient information to issue a SDWA Section 1431 emergency order to protect Flint residents from lead- contaminated water as early as June 2015. Region 5 had information that systems designed to protect Flint drinking water from lead contamination were not in place, residents had reported multiple abnormalities in the water, and test results from some homes showed lead levels above the federal action level.
EPA Region 5 did not issue an emergency order because the region concluded the state’s actions were a jurisdictional bar preventing the EPA from issuing a SDWA Section 1431 emergency order. However, the EPA’s 1991 guidance on SDWA Section 1431 orders states that if state actions are deemed insufficient, the EPA can and should proceed with a SDWA Section 1431 order, and the EPA may use its emergency authority if state action is not protecting the public in a timely manner. However, EPA Region 5 did not intervene under SDWA Section 1431, the conditions in Flint persisted, and the state continued to delay taking action to require corrosion control or provide alternative drinking water supplies.” OIG Report, “At a Glance”
COUNT I NEGLIGENCE – Failure to take mandatory actions required
by SWDA
95. The United States shall be liable, respecting the provisions of this title
relating to tort claims, in the same manner and to the same extent as a private
individual under like circumstances. 28 U.S.C. § 2674.
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96. All of the events which give rise to this cause of action occurred in the state of Michigan.
97. The EPA is liable for the knowledge of and acts and omissions of its agents and employees, including but not limited to, Jennifer Crooks and Dr. Susan Hedman.
98. This case involves a major failure of all levels of government to protect the health and safety of the public. Local, state and federal agencies and employees, working individually and at times in concert with each other, mismanaged this environmental catastrophe.
99. The Michigan Supreme Court has recognized that a “private individual” is subject to the tort duties established by Section 324A of the Restatement of Torts, 2d. See Smith v. Allendale Mut. Ins. Co., 410 Mich. 685,705; 303 N.W.2d 702, 1981 Mich. LEXIS 251 (Mich. 1981) and more recently Fultz v. Union-Commerce Assocs., 470 Mich. 460,464; 683 N.W.2d 587, 2004 Mich. LEXIS 1523 (Mich. 2004) (noting that “Michigan courts have accepted the Restatement of Torts, 2d, § 324A, as an accurate statement of Michigan law and used the principles stated above in analyzing plaintiffs' claims in the past”).
100. This section of the Restatement provides: § 324A Liability to Third Person for Negligent Performance of Undertaking
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One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk
of such harm, or (b) he has undertaken to perform a duty owed by the other to
the third person, or (c) the harm is suffered because of reliance of the other or the
third person upon the undertaking. 101. The EPA undertook the duty of rendering services to the MDEQ “for the protection” of the Flint water users. A. Failure to Issue § 1431 Emergency Order 102. Upon learning that a contaminant which is present or likely to enter a water system may present a substantial and imminent danger to the health of persons and that the actions of state and local authorities have not been sufficient, the EPA was required to issue a § 1431 emergency order. 103. An order issued pursuant to §1431 can require state and local officials to take actions to protect the public including providing alternative water supplies at no cost to the consumer as well as public notification of the hazard. 104. Despite learning as early as October 2014 that Flint water users were being exposed to a substantial and imminent danger due to a contaminant in the water system about which the Michigan and Flint officials had failed to take
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sufficient actions to remedy, the EPA failed to fulfill its mandatory duty to issue a § 1431 emergency order. This failure persisted until January 2016.
B. Failure to Provide Technical Assistance, Obtain Compliance and Commence Civil Action Under § 1414
105. Pursuant to § 1414 of the SWDA, when the EPA learns that state or local water provider has not complied with the requirements for safe drinking water, the EPA must provide expert advice and technical assistance. If compliance is not obtained within 30 days, the EPA must issue an order requiring the public water system to comply or commence a civil action.
106. The EPA had notice that the Flint water system was not in compliance with the requirements of the SWDA as early as October 2014.
107. Despite notice of non-compliance in October 2014, the EPA did not provide advice and technical assistance until September 2015 and never issued an order or commenced a civil action to require the State of Michigan or the City of Flint to bring the Flint water system in compliance with the requirements of the SWDA as required by § 1414.
C. Negligent Undertaking Regarding Corrosion Control 108. In February, 2015, the EPA rendered service to the MDEQ and responded to LeeAnn Walters’ complaints about being exposed to contaminated Flint River water.
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109. Upon undertaking this task, the EPA owed a duty of reasonable care to prevent or reduce the risk of harm to Walters and the other CLAIMANTS.
110. The Statement of Facts recited above establishes that the EPA was an active participant in the mismanagement of the unfolding environmental disaster.
111. Crooks was aware that the Flint River was highly corrosive and that Flint had older corroded lead service pipes which required corrosion control treatment. She knew in February 2015, that Del Toral observed lead based “black sediment” in the Walters water and that Jan Burgess reported in October 2014 floating particles in her water.
112. Crooks in February 2015 was aware that exposure to the Flint River water was causing skin rashes and falling clumps to hair from a family member of the Flint Tech Advisory Board.
113. In February 2015, EPA agent Del Toral informed Crooks that the absence of corrosion control treatment provided a possible explanation for the presence of lead particles floating in the water.
114. Based on the facts supplied by Del Toral and Jan Burgess, Crooks knew or should have known that corrosion control treatment was essential for safe distribution of the Flint River water and that this treatment was probably absent from the treatment of the water.
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115. By April 25, 2015, the EPA was positive that corrosion control was not being used yet failed to suggest, direct or counsel the MDEQ and Flint to implement a corrosion control program until July 2015.
116. By April 2015, this probability became a certainty and the EPA had a firm and clear knowledge that the MDEQ either refused or was incapable of managing the technical aspects that ensured that all environmental laws were adhered to.
117. Even after the EPA directed the MDEQ and Flint to implement corrosion control in July 2015, the EPA knew that the MDEQ and Flint “slow walked” the process as testified to by EPA Administrator McCarthy on March 17, 2016.
118. EPA Region 5 had the authority and sufficient information to require the issuance of a SDWA Section 1431 emergency order to protect Flint residents from lead contaminated water as early as October 2014.
119. Region 5 had information that systems designed to protect Flint drinking water from lead contamination were not in place, e.g. residents had reported multiple abnormalities in the water, and test results from some homes showed lead levels above the federal action level.
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120. In September 2015, EPA Region 5 finally briefed the EPA headquarters’ Office of Enforcement and Compliance Assurance (OECA) about Flint’s water crisis.
121. OECA immediately advised the region take SDWA Section 1431 action. During the fall, the state began to take actions to correct the problems in Flint. EPA Region 5 maintained that the state was acting, but the contamination continued. The EPA Administrator finally directed OECA to issue an emergency order on January 21, 2016. The emergency order stated the EPA had determined that Flint’s and Michigan’s responses to the drinking water crisis were inadequate, and the EPA ordered specific actions to address a public health threat.
122. The failure of the EPA to comply with its duty under both § 1414 and §1431 of the SWDA, to issue a section 1431 emergency order, to provide advice and technical assistance to obtain compliance with the requirements of the SWDA and to issue an order or commence an action against state and local officials to obtain compliance including requiring immediate corrosion control treatment was unreasonable and unquestionably increased the risk and level of harm to CLAIMANTS. Restatement of Torts, 2d § 324A (a).
123. The EPA, in rendering services to the MDEQ, undertook the duty owed by the MDEQ to CLAIMANTS. Restatement of Torts, 2d § 324A (b).
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124. The EPA breached this duty to CLAIMANTS when it unreasonably delayed in requiring Flint to promptly implement corrosion control and in failing to promptly notify Flint water users of the contamination of the water supply and the hazardous situation.
COUNT II Negligent Performance of Undertaking Regarding Timely Investigations
125. Burgess and other CLAIMANTS submitted to the EPA complaints and notices of violations in connection with their exposure to poor quality water caused by the distribution of the highly corrosive Flint River water.
126. The EPA undertook the obligation to timely investigate complaints and in so doing imposed upon itself a duty to investigate the complaints in a careful and reasonable manner so that once violations of law or regulation were detected a proper and prompt remedy could and would be pursued.
127. Burgess, for herself and on behalf of other CLAIMANTS, relied on the EPA to undertake the task of investigating complaints and fashioning the appropriate remedy. Restatement of Torts, 2d § 324A (c).
128. If the investigation had been undertaken in a timely fashion, a violation of environmental law would have been detected and City of Flint would have been required to implement corrosion control treatment or to develop another remedy to prevent harm to CLAIMANTS.
COUNT III
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Negligent Undertaking of the Duty to Warn the Public of Environmental Risks to Public Health
129. The EPA, in employing environmental safety experts such as Del Toral, undertook the task of providing the MDEQ with environmental safety technical advice and expertise regarding the consequences of using the Flint River as a primary drinking water source.
130. On June 24 and 25, 2015, Del Toral advised the EPA the public’s exposure to lead was “widespread” and that the environmental catastrophe facing Flint should not be concealed and the citizens must be warned of the public health and safety risks.
131. Yet the EPA concealed from the public the environmental dangers and risks and the failure to immediately warn them of the public of the public health emergency bordered on “criminal neglect.”
132. Notwithstanding this advice from its expert as to how to implement a mitigation of harm plan, the EPA remained silent when it should have spoken out and it knowingly permitted and facilitated the MDEQ and City of Flint in the concealment of the environmental disaster identified by Del Toral. See Restatement of Torts, 2d § 324A (b).
133. The failure to warn CLAIMANTS and the citizens of Flint of the environmental disaster and ensuing cover-up significantly increased the harm to the
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Citizens of Flint for which the EPA is responsible. Restatement of Torts, 2d § 324A (a).
DAMAGES 134. As a result of the EPA’s negligence CLAIMANTS have experienced and will continue to experience physical injury, illness, lead poisoning, dermatological disorders, loss of hair, gastrointestinal disorders, out of pocket economic losses; CLAIMANTS have experienced and will continue to experience pain and suffering, emotional distress, deprivation of a quality of life; CLAIMANTS have experienced property damage to real estate and personal property; CLAIMANTS have experienced a loss of property value. 135. The aggregate damages for personal and property injuries and losses is $722.4 million. Accordingly, Plaintiff demands judgment for herself and the 1,703 individuals who have filed administrative claims against the USA in the amount of $722.4 million or whatever amount in excess of that amount the Court deems appropriate.
Respectfully submitted, By:/s/ Michael L. Pitt P24429 Michael L. Pitt P24429 Cary S. McGhee P42318 Beth M. Rivers P33614 PITT McGEHEE PALMER & RIVERS, PC 117 W. Fourth Street, Suite 200
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Royal Oak, Michigan 48067 Telephone: (248) 398-9800 mpitt@pittlawpc.com cmcghee@pittlawpc.com brivers@pittlawpc.com
Deborah Labelle P31595 LAW OFFICES OF DEBORAH LaBELLE 221 N. Main Street, Suite 300 Ann Arbor, Michigan 48104 (734) 996-5620 deblabelle@aol.com
William H. Goodman P14173 Julie H. Hurwitz P34720 Kathryn Bruner James P71374 GOODMAN & HURWITZ, PC 1394 E. Jefferson Ave. Detroit, Michigan 48207 Telephone: (313) 567-6170 bgoodman@goodmanhurwitz.com jhurwitz@goodmanhurwitz.com kjames@goodmanhurwitz.com
Trachelle C. Young P63330 TRACHELLE C. YOUNG & ASSOCIATES PLLC 2501 N. Saginaw St. Flint, Michigan 48505 Telephone: (810) 239-6302 trachelleyoung@gmail.com
Brian McKeen P34123 McKEEN & ASSOCIATES, PC Attorneys for Plaintiffs 645 Griswold Street, Suite 4200 Detroit, Michigan 48226 (313) 961-4400 BjMcKeen@mckeenassociates.com
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Dated: April 18, 2017

Teresa Caine Bingman P56807 THE LAW OFFICES OF TERESA A. BINGMAN 1425 Ambassador Drive Okemos, MI 48864 (877) 957-7077 tbingman@bingmanlaw.com
Cynthia M. Lindsey (P37575) Shermane Sealey (P32851) Cynthia M. Lindsey & Associates Attorneys for Plaintiffs 8900 E. Jefferson Avenue, Suite 612 Detroit, MI 48214 (248) 766-0797 cynthia@cmlindseylaw.com shermane@cmlindseylaw.com
Counsel for Plaintiffs

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 Case 4:17-cv-11218-LVP-RSW ECF No. 75 filed 03/07/19 PageID.2565 Page 1 of 37

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAN BURGESS, and all 2,959 individuals identified in the Burgess FTCA administrative Complaint,1
Plaintiffs,

Hon. Linda V. Parker Mag. R. Steven Whalen Case No. 17-11218

vs.

UNITED STATES OF AMERICA, Defendant.

SECOND AMENDED COMPLAINT Introduction
1. This action is a joinder action brought by all individuals identified administratively as Federal Tort Claims (“FTCA”) CLAIMANTS (“CLAIMANTS”) who experienced personal and property damage as a result of the negligence of the United States Environmental Protection Agency (“EPA”) in its

1 In fact, 2,965 claimants have been submitted to the EPA in the Burgess Administrative Complaint. However, six of the claimants submitted to the EPA in Batch 5, attached to Burgess’s Fourth Amended Class Action Administrative Complaint, also appear as claimants in the Thomas v. USA case. Due to the dual representation of these six claimants, they have not been added to this Second Amended Complaint nor have their alleged damages been factored into the damage amounts stated herein.

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mishandling of the Flint Water Crisis. This action for personal and property damages is brought against the United States of America (“USA”) under the FTCA, 28 U.S.C. § 2671 et seq.
The EPA failed to follow several specific agency mandates and directives governing its conduct which resulted in injury to the CLAIMANTS. Upon notice of a contaminant in the water system which presents a substantial and imminent danger, the EPA is required to first determine whether the state and local agency is taking timely action protective of public health. If timely and protective action is not being taken, the EPA is required to bring a Section 1431 emergency action. However, despite notice of the danger as early as October 2014, the EPA failed to take the mandatory steps to determine that Michigan and Flint authorities were not taking appropriate action to protect the public from toxic water and failed to file the emergency Section 1431 action until January 2016.
In addition, the EPA is required to provide advice and technical assistance to states and local providers which are not in compliance with the requirements of the Safe Water Drinking Act (“SWDA”) and if compliance is not achieved in thirty days, the EPA is required to issue an order or commence a civil action to obtain compliance. The EPA took none of those mandatory steps. The failure to fulfill these mandatory duties constitute violations of the FTCA.
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An administrative claim for payment of personal and property damage in the amount of $2,370,500,000.00 has been pending before the EPA for more than 6 months. The EPA has neither accepted nor denied the administrative claim.
Jurisdiction, Venue, Parties and Exhaustion of Administrative Remedies 2. This Court has subject matter jurisdiction over the USA sued pursuant
to the FTCA, 28 U.S.C. § 1346(b) (1). 3. Venue is proper in cases involving tort claims against the USA where
the Plaintiff resides or where the act or omission complained of occurred. 28 U.S.C.§ 1402(b); 32 C.F.R. 750.32(a).
4. Plaintiff resides in this Judicial District and the acts and omissions complained of occurred in this Judicial District.
5. On April 25, 2016, Burgess through her counsel individually and as representative for 523 individuals submitted a claim to the EPA for personal and property damages arising out of the EPA’s negligent handling of the Flint Water Crisis. Each of the 523 individuals executed a written consent for representation by Burgess’ counsel. Proof of consent for representation has been supplied to the EPA. This group of 523 individuals, identified in Exhibit 1, are described as Batch 1 CLAIMANTS.
6. On June 6, 2016, Burgess through her counsel individually and as representative for 227 individuals submitted an amended claim to the EPA for
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personal and property damages arising out of the EPA’s negligent handling of the Flint Water Crisis. Each of the 227 individuals executed a written consent for representation by Burgess’ counsel. Proof of consent for representation has been supplied to the EPA. This group of 227 individuals, identified in Exhibit 2, are described as Batch 2 CLAIMANTS.
7. On October 14, 2016, Burgess through her counsel individually and as representative for 955 individuals submitted a second amended claim to the EPA for personal and property damages arising out of the EPA’s negligent handling of the Flint Water Crisis. Each of the 955 individuals executed a written consent for representation by Burgess’s counsel. Proof of consent for representation has been supplied to the EPA. This group of 955 individuals are identified in Exhibit 3 are described as Batch 3 CLAIMANTS.
8. On May 4, 2017, Burgess through her counsel individually and as representative for 920 individuals submitted a third amended claim to the EPA for personal and property damages arising out of the EPA’s negligent handling of the Flint Water Crisis. Each of the 920 individuals executed a written consent for representation by Burgess’s counsel. Proof of consent for representation has been supplied to the EPA. This group of 920 individuals are identified in Exhibit 4 are described as Batch 4 CLAIMANTS.
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9. On October 12, 2017, Burgess through her counsel individually and as representative for 340 individuals submitted a third amended claim to the EPA for personal and property damages arising out of the EPA’s negligent handling of the Flint Water Crisis. Each of the 340 individuals executed a written consent for representation by Burgess’s counsel. Proof of consent for representation has been supplied to the EPA. Of this group of 340 individuals, 334 individuals are identified in Exhibit 5 and are described as Batch 5 CLAIMANTS.2
10. More than 6 months has elapsed since the filing of the claims identified in paragraphs 5-9 above. The EPA has not issued a Final Decision.
11. Burgess and the other 2,959 individuals have exhausted all administrative remedies and pursuant to the FTCA are now entitled to proceed with this action in the United State District Court. 28 U.S.C. § 2675(a).
Statement of Facts 12. This lawsuit against the EPA arises out of the environmental catastrophe known world-wide as the “Flint Water Crisis.” 13. On April 25, 2014, the Michigan Department of Environmental Quality (“MDEQ”) authorized the City of Flint to distribute to its more than 30,000 customers drinking water pumped from the highly corrosive, polluted and toxic Flint River.
2 See Footnote 1.
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14. For almost 50 years, Flint water users enjoyed plentiful, clean fresh water purchased from the Detroit Water and Sewage Department (“DWSD”). The water received from DWSD included a “corrosion–inhibiting additive, which lined pipes and connections to minimize the level of lead leaching into Drinking water.” Management Alert: Drinking Water Contamination in Flint, Michigan, Demonstrates a Need to Clarify EPA Authority to Issue Emergency Orders to Protect the Public, Office of Inspector General, United State Environmental Protection Agency, Office of Inspector General, October 20, 2016, p 1. (“OIG”)
15. Flint Emergency Managers Edward Kurtz and Darnell Earley, with the approval of Michigan’s Governor and State Treasurer, discontinued Flint’s water service from DWSD and approved use of the Flint River as an interim source of water until an alternative water pipeline was completed in late 2016 or 2017.
16. The Flint River water was toxic and 19 times more corrosive than the DWSD supplied water. The Flint River water required substantial corrosion control treatment in order for it to be safe and useable because many Flint homes and businesses have lead service lines and plumbing making them more susceptible to high levels of corrosion and the leaching of lead.
17. It is an undisputed fact that the MDEQ and Flint failed or refused to use corrosion control during the entire time that Flint River Water was supplied to Flint water users (April 25, 2014 to October 16, 2015). Flint water users were
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exposed to the toxic and highly corrosive Flint River water for 539 days or 1 year, 5 months and 21 days. OIG, p 1.
18. On October 16, 2015, by order of the Governor, the Flint water system was re-connected to the DWSD system.
19. Although DWSD water was restored to the Flint water system, the 539 days of exposure to highly corrosive Flint River water ruined the lead service lines, hot water tanks and other plumbing apparatus.
20. As of November 25, 2016, the two and one half year anniversary of the switch to the Flint River, the water delivered to the people of Flint remains unsafe to drink, use for cooking or use for bathing.
21. Throughout the spring and summer of 2014, the water supplied to Flint water users was malodorous, tasted bad and appeared to be cloudy with floating dirt or metallic particles. OIG, p 1.
22. Flint water users received a notice in August 2014 of an acute coliform Maximum Contaminant Level (MCL), a monthly coliform MCL violation in August 2014, and a monthly coliform MCL violation in September 2014.
23. Burgess, as a Flint home owner and water user, made numerous complaints to the state and city officials about the poor water quality she was experiencing. Neither the state nor the city gave her satisfactory information about how and when the water quality would be improved.
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24. Burgess determined that she was living in an environmental crisis and
turned to the EPA for assistance.
25. Burgess discovered on the EPA’s website a section entitled
“Enforcement.” The web page gave her instructions on how to report violations of
environmental laws and regulations. The Enforcement page stated that if she elected
to provide contact information with her report, that information may be “shared by
EPA with appropriate administrative, law enforcement, and judicial entities engaged
in investigating or adjudicating the tip or complaint.”
26. On October 14, 2014, Burgess presented to the EPA her complaint and
requested an investigation. She wrote:
Tip or Complaint: Earlier this year, the City of Flint, changed its water supply from the City of Detroit (Lake Huron) to the Flint River. This river has a very long history of pollution. Since this change, our drinking water has tripled in cost and the quality varies daily. Some days it smells like an over-chlorinated swimming pool; other days, like pond scum. It is often brown in color and frequently has visible particles floating in it. We’ve been under several boil water advisories due to e-coli contamination. Just this morning our local paper reports that General Motors Engine plant has shut off Flint River water to the plant due to the over-chlorination and the fears that the water will cause corrosion. http://www.mlive.com/news/flint/index.ssf/2014/10/general_motors _wont_use_flint.html#cmpid=nsltr_stryheadline. People in Flint have had to resort to buying bottled water or having purification systems installed in their homes. Some residents have even had private wells dug. The water is not safe to drink, cook or wash dishes with, or even give to pets. We worry every time we shower. The City of Flint is still very economically depressed and most citizens
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cannot afford to do anything other than use the river water. Many of them have NO water at all due to the extremely high water bills. There is reasonable suspicion that reports have been falsified. Some residents have had water tested privately and the results are not even close to those reported by the City. Calls to the City and State have resulted in no action whatsoever. Violation Still Occurring? Yes State DEP/DEQ/DEM Notified? No
27. On October 23, 2014, EPA representative Jennifer Crooks (Crooks) responded to Burgess’ email stating in part that “the Flint River water is a different quality than the Lake Huron raw water; and requires additional treatment to ensure an acceptable quality drinking water.” She emphasized that the poor quality water was only a temporary problem because Flint planned to join the Karegnondi Water Authority (KWA) in 2016. She said that the “MDEQ is aware of the multiple complaints from citizens and is working closely with the Flint Water Department to ensure the distribution system and the water treatment processes work more efficiently and more effectively.”
28. Burgess heard nothing more from the EPA until April 8, 2016, when investigators of the EPA’s Office of Inspector General contacted her for an interview regarding her report. Ms. Burgess met with the EPA investigators on April 9, 2016, for about 1.5 hours.
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29. At the time of interview, the EPA investigator advised Burgess and her
counsel that the EPA had received 120 complaints or notices of environmental
violations and most, if not all, had not been investigated.
30. The duration of time between Burgess’ report of an environmental
violation and the opening of an investigation was 543 days or 1 year, 5 months and
26 days.
31. In January 2015, Flint home owner LeeAnn Walters called the EPA
regarding water issues that she was experiencing at her Flint home. She informed
the EPA that she and her family members were becoming physically ill from
exposure to the water coming from her tap.
32. On February 26, 2015, Crooks wrote an email to MDEQ and EPA
representatives. Crooks noted that Walters complained of “black sediment in her
water.” Crooks noted that the iron contamination was so high that the testing
instrumentation could not measure it. She went on to say:
“But, because the iron levels were so high [Michael Glasgow, Flint Utilities Administrator], suggested testing for lead and copper. WOW!!!! Did he find the LEAD! 104 ppb [parts per billion] She has 2 children under the age of 3….Big worries here ….
-----------------------I think Lead is a good indication that 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
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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.”
33. In a second email on February 26, 2015, Crooks stated that Miguel Del Toral (Del Toral) of the EPA is of the opinion that the “black sediment” in Walters water was actually lead. She stated that “Miguel is wondering if Flint is feeding phosphates. Flint must have Optimal Corrosion Control Treatment-is it phosphates?”
34. Crooks continued: “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?”
35. Crooks in an email, dated February 27, 2015, offered to MDEQ representative Stephen Busch (Busch) expert advice through “our expert,” Mike Schrock at EPA Cincinnati Research.
36. On February 27, 2015, MDEQ representative Busch advised Del Toral and Crooks that “[MDEQ] will take the [offer of expert assistance] under consideration.” He further stated that Flint has an “Optimized Corrosion Control Program.”
37. Del Toral, on February 27, 2015, advised Crooks that this is a very dangerous situation. He stated that “the particulate can contain very high
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concentrations of lead (hundreds of thousands of ppb Pb) which is much higher concentration than lead paint, so even small particles can result in high lead values.”
38. By late January 2015, the news media regularly reported the widespread water quality issues and resulting illnesses occurring in Flint. A casual internet search in January, February or March of 2015, would have produced scores of news reports about the environmental crisis developing in Flint. The EPA was monitoring these media reports.
39. According to the OIG Report, in February, 2015, the “EPA Region 5 received the first Flint drinking water distribution system lead sampling test result, indicating a requirement of corrosion control.” OIG, p 4.
40. On March 3, 2015, Flint collected a follow-up sample at the Walters home. This time the reading was 397 ppb (more than 20 times the EPA “Action Level” of 15 ppb).
41. On March 18, 2015, Walters informed Crooks of the March 3rd reading. Crooks asked Walters to fax her the report. She stated “any thoughts on how to respond to her? I’m running out of ideas.”
42. By March of 2015, Del Toral was communicating with Region 5 EPA personnel that there was a serious public health crisis developing in Flint caused by contaminated water.
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43. Walters also provided the EPA with reports of elevated blood lead levels for her children proving that consuming lead-laced water had poisoned her children.
44. In early April 2015, Walters called Dr. Marc Edwards (Dr. Edwards), an environmental engineering professor from Virginia Tech University, to come to Flint to assist to address the water contamination problems. Dr. Edwards, in April 2015, took water samples and shared his test results with the EPA.
45. On April 23, 2015, Del Toral wrote an email to the MDEQ and asked one question: “What’s Flint doing now (post Detroit) for corrosion control treatment?”
46. On April 24, 2015, the MDEQ wrote back that “Flint is not practicing corrosion control treatment at the Water Treatment Plant (WTP).”
47. On April 25, 2015, Del Toral prepared an email to the MDEQ and his EPA colleagues stating “given the very high lead levels found at one home and the pre-flushing happening at Flint, I’m worried that the whole town may have much higher lead levels than the compliance indicated, since they are using pre-flushing ahead of their compliance sampling.” (Emphasis added).
48. On April 27, 2015, Del Toral travelled to the Walters home to investigate the circumstances causing the elevated lead readings. The EPA also tested neighboring homes. Ultimately, testing and investigation determined that the
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city-owned service line of about 25 feet running from the water main to the external shut off valve was made of lead and a source of the lead contamination. In addition, the Walters home had galvanized pipe which became “seeded” with lead due to corrosive water. According to Del Toral, the lack of corrosion control treatment was a major contributing cause for the release of lead into the Walter’s water system.
49. On May 6, 2015, the EPA returned to the Walters home to supervise the service line replacement activities.
50. By June 2015, “EPA Region 5 had information that the city of Flint exceeded the lead level at which corrosion control was required, and that Flint was not using a corrosion inhibitor. EPA Region 5 also had information that at least four homes had concentrations of lead in household drinking water above the action level of 15 parts per billion.” OIG, p 5.
51. On June 10, 2015, the EPA offered additional technical assistance on response managing the different water quality issues in Flint, including the presence of lead in the drinking water.
52. On June 24, 2015, Del Toral prepared a memorandum entitled “High Lead Levels in Flint Michigan-Interim Report (“Del Toral Report”).” The Del Toral Report stated that “a major concern from a public health standpoint is the absence of corrosion control treatment in the City of Flint for mitigating lead and copper levels in the drinking water.” He added that “the lack of mitigating treatment is
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especially concerning as the high lead levels will likely not be reflected in the City
of Flint’s compliance samples due to the sampling procedures used by the City of
Flint for collecting compliance samples.”
53. On June 25, 2015, Rita Bair (“Bair”), Branch Chief Region 5, Ground
Water and Drinking Section, responded to Del Toral’s Interim Report wanting to
know in an email why Del Toral characterized the lead problem in Flint as
“widespread.”
54. Del Toral responded to Bair via an email on Thursday June 25, 2015,
stating that:
“The widespread high lead is my judgement based on a couple of decades of working with lead issues and I stand by it despite the limited data set from Flint. A simple application of scientific principles to the circumstances in Flint along with the limited data are enough to know that there is a problem there. They have had no corrosion control treatment in place for over a year now and they have lead service lines. It's just basic chemistry on lead solubility. You will have high lead leaching into the water where you are doing nothing to mitigate that. We don't need to drop a bowling ball off every building in every town to know that it will fall to the ground in all of these places….The only reason we don't have more data is because the City of Flint is flushing away the evidence before measuring for it…there is zero chance or close to zero chance that you will ever capture any of the high lead…. the high lead levels we are seeing in Flint are mainly particulate lead, which is released sporadically in most cases, so unfortunately for Flint in their attempts to avoid capturing lead, these particles are being captured despite their attempts not to capture lead. 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 harmed. At a MINIMUM, the City
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should be warning residents about the high lead, not hiding it telling them that there is no lead in the water. To me that borders on criminal neglect. The only people that question the science are the ones that have a vested interest in not finding lead. When we look, we find it. When they look, they either don't find it or if they find it, they dismiss it as the resident's plumbing or use some other fabricated reason .(Emphasis added)
55. Sometime between June 24, 2015 and June 30, 2015, Del Toral provided his Interim Report to Walters who shared it with Curt Guyette (Guyette) an investigative reporter with the ACLU of Michigan.
56. Guyette confirmed the accuracy of the Del Toral Report by interviewing Del Toral who confirmed that the assertions contained in the Report were accurate.
57. Guyette then approached Flint for comment. On June 30, 2015, Mayor Dwayne Walling (Walling) notified EPA Region 5 Director Dr. Susan Hedman (Hedman) that an EPA Region 5 staff member was speaking publicly about the Flint environmental crisis.
58. On July 1, 2015, Hedman informed Walling that the Del Toral Report “should not have been released outside the agency.” She recommended to Walling that Flint retain two EPA experts on lead and drinking water and that Flint follow the lead of the MDEQ. Walling asked Hedman to advise the ACLU that Flint should follow the advice of the MDEQ.
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59. On July 2, 2015, Hedman said to Walling that “I am not inclined to have any further communication with the ACLU representative.” She told Walling that he could tell Guyette that what he was given was a preliminary draft and that it would be premature to draw any conclusions based on that draft.”
60. On July 9, 2015, Michigan media outlets raised the serious environmental and public health issues discussed in the Del Toral Report---the serious issues which had been well known to the EPA from January, 2015. The threat to the public health of the citizens of Flint became nationwide news.
61. On July 10, 2015, in response to the media reports of a public health crisis in Flint, Hedman issued a press statement which stated in part that the “EPA will work with the Michigan DEQ and the City of Flint to verify and assess the extent of lead contamination issues and to ensure that Flint’s drinking water meets federal standards.”
62. On July 14, 2015, Guyette asked the EPA if phosphate should be used as corrosion control. Although the answer to this question is an unequivocal “YES,” the EPA provided an evasive and convoluted response in an apparent desire to protect the MDEQ. When Guyette asked the EPA to comment on whether the sampling methods were minimizing the lead readings, the EPA again provided an evasive response.
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63. On July 21, 2015, EPA representatives had a conference call with MDEQ representatives. The MDEQ argued with the EPA about the necessity of immediate corrosion control treatment in light of what it alleged was “compliant sampling.” The EPA was concerned about the validity of the MDEQ position, because the EPA had doubts as to whether the sampling was done properly.
64. At the July 21, 2015 meeting, the EPA informed the MDEQ that Flint should be instructed to “start corrosion control treatment as soon as possible.” The MDEQ acknowledged that it had already been in contact with the EPA’s experts (Lytle and Shock). The EPA did not establish any deadlines for the commencement of corrosion control.
65. On August 10, 2015, EPA representatives asked the MDEQ for an update on the status of the corrosion control treatment. No information was forthcoming.
66. On August 17, 2015, MDEQ sent a letter to Flint recommending that Flint implement corrosion control treatment as soon as possible, but no later than January 1, 2016, and to fully optimize its treatment within six months.
67. On August 28, 2015, the EPA asked the MDEQ to provide Flint’s corrosion control compliance plan.
68. On August 31, 2015, the MDEQ disputed that corrosion control was necessary because its sampling establishes compliance.
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69. On August 31, 2015, Dr. Edwards published the results of his water testing and reported that 20% of the samples were over the 15 ppb EPA Action Level. Dr. Edwards’ report showed that 42% of the tested Flint homes had levels of 5 ppb or higher.
70. On August 31, 2015, the EPA and MDEQ engaged in a conference call to respond to Dr. Edwards’ report of an emerging major public health crisis. The EPA suggested that the participants could discredit Dr. Edwards’ findings because his labs were not “certified.” The EPA noted that Dr. Edwards’ website “is putting added pressure on the MDEQ and EPA to ensure that Flint addresses their lack of optimized corrosion control treatment in an expedited manner in order to protect the residents from exposure to high lead levels.” The EPA acknowledged in this call that “to delay installation of corrosion control treatment in Flint would likely cause even higher levels of lead over time as Flint’s many lead service lines are continuously in contact with corrosive water.”
71. In September 2015, 11 months after receipt of the Burgess complaint, EPA Region 5 first briefed the EPA Headquarters’ Office of Enforcement and Compliance Assurance (“OECA”) about Flint’s water crisis.
72. The OECA immediately advised the Region take Safe Drinking Water Act (“SDWA”) Section 1431 action (Emergency Administrative Order). However,
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Region 5 did not issue an Emergency Administrative Order, as directed by OECA, until January 21, 2016.
73. On September 3, 2015, media reports indicated that Dr. Edwards’ reports showed that there is an immediate public health crisis at hand. The media reported that the highly corrosive Flint River water was causing lead contamination in Flint homes. The media reported that the corrosion control plan would be implemented in January, 2016.
74. On September 9, 2015, Jessica Dupnack (Dupnack) of ABC Channel 12 asked the EPA if “there is any warning to citizens about drinking the water?” Peter Cassell (Cassell), Press Officer of the EPA, misleadingly stated that the “lead monitoring shows Flint has not exceeded the lead action level .…” Cassell further added that “Flint recently accepted EPA’s offer to provide technical assistance to the City and MDEQ .…”
75. Later that day, Dupnack asked Cassell to comment on the disparity between Flint’s position (the City is in compliance) and Dr. Edwards’ position (the City testing is invalid). She asked if the EPA’s position is that “every single home falls below 15 ppb?” Cassell evaded the question by responding “I’m not sure how the sampling differs between the City of Flint and Virginia Tech and can’t comment on that, specifically.”
76. On September 9, 2015, Congressman Dan Kildee asked the EPA:
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a. if the findings in the Del Toral Report were accurate; b. if there was a public health emergency; c. when will the EPA tell citizens about the public health concerns; and d. most importantly, is the water safe? 77. On September 15, 2015, Susan Hedman provided a vague response to Congressman Kildee’s correspondence. She did not address any issues that Kildee had raised regarding the accuracy of the Del Toral report. 78. On September 11, 2015, Crooks wrote to MDEQ representatives and stated: “Just to clarify; on our call, I wanted to remind you that Miguel’s report had DEQ cc’d. So if the Legislature or whoever might say you all were cc’d, you can truthfully respond that it was EPA’s request that the report not be sent to the ccs. Consequently, you all never received the report from Miguel.” Crooks was fully aware that the MDEQ representatives had received the report, not from the EPA but rather from the public media when Guyette published his story about the Del Toral report. 79. On September 14, 2015, Debbie Baltazar, Water Division Branch Chief for EPA Region 5, wrote a disturbing email, which stated that “perhaps [Hedman] already knows all of this, but I am not sure Flint is the community we want to go out on limb for.”
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80. On September 18, 2015, EPA Director of Water Division, Tinka Hyde,
made a formal request for EPA experts Lytle and Schock to be assigned to Flint to
provide technical assistance.
81. On September 20, 2015, Dr. Edwards sent an email to Lytle and Schock
and other EPA officials. In this email, Dr. Edwards made a strong case that the
Flint/MDEQ prior sampling should be rejected as non-compliant with basic testing
protocol. He completed his communication by pointing out emphatically that:
“1) FLINT HAS LOTS OF LEAD PIPE, NO CORROSION CONTROL TREATMENT, AND HAS NO LEGITIMATE LCR TESTING FOR AT LEAST A YEAR.
2) AMONGST LOW INCOME INFANTS, BREAST FEEDING RATES ARE LOWER, AND FORMULA USE IS HIGHER. MANY FLINT RESIDENTS CANNOT AFFORD TO FLUSH DUE TO HIGH WATER RATES, THEY CANNOT AFFORD BOTTLED WATER. THIS IS AN UNPRECEDENTED SITUATION AND EPA NEEDS TO TAKE THIS SERIOUSLY, NOW.
3) WE HAVE ONE CHILD WITH ELEVATED BLOOD LEAD ALREADY….IN FACT, THAT IS THE ONLY REASON WE KNOW ABOUT ANY OF THE ABOVE.
4) MDEQ IS STILL PUBLICLY INSISTING FLINT WATER HAS TESTED SAFE, IS SAFE, AND THAT FLINT HAS NO VIOLATIONS OF ANY SORT.” (Emphasis in text)
82. Dr. Edwards continued: “I believe that someone at HQ or in R5 should
immediately take decisive action on this issue to protect the public.”
83. On September 21, 2015, Dr. Edwards published on his website his
advice to Flint water users: “Drink or cook with the water only if a proper filter is
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used and flushing for 5 minutes before the water is used for drinking or cooking. Dr. Edwards shared this information with the EPA. The EPA responded by stating that the agency is “looking into the information you have provided.” Elected Officials met with EPA and MDEQ representatives to review the situation and options.
84. On September 21, 2015, Dr. Mona Hanna-Attisha presented her study of elevated blood lead levels for children in Flint to Walling, Natasha Henderson, City Administrator and Howard Croft, Director of Flint Public works. In her report, Dr. Hanna-Attisha documented increases which coincided with the exposure to the Flint River water. Dr. Edwards shared this information with the EPA.
85. Dr. Edwards also informed the EPA that Dr. Hanna-Attisha reported, that the EPA had given the City of Flint a “blessing that they were in compliance and there was no corrosivity” issue. Dr. Hanna-Attisha pushed for a health advisory to be published to the citizens of Flint.
86. On September 22, 2015, Dr. Edwards wrote an email to the EPA stating:
MDEQ will go to their graves insisting Flint has met all Federal LCR standards…higher numbers of EBL kids be damned. They are also telling people that EPA has said that there is no absolutely no corrosion problem in Flint water.
87. On September 24, 2015, Dr. Mona Hanna-Attisha held a press conference to release her study and recommendations. Her position was dramatic:
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every child in Flint is presumed to have ingested lead and has been harmed by this toxic metal.
88. On September 25, 2015, the City of Flint issued a lead advisory which states in part:
The City of Flint is issuing a lead advisory for residents to be aware of lead levels in drinking water after hearing concerns from the medical community. While the City is in full compliance with the Federal Safe Drinking Water Act, this information is being shared as part of a public awareness campaign to ensure that everyone takes note that no level of lead is considered safe.
89. On September 27, 2015, Hedman called MDEQ Director Dan Wyant and discussed the need for expedited implementation of corrosion control treatment.
90. On October 1, 2015, the Genesee County Health Department issued a “Do Not Drink the Water” Advisory. The Natural Resources Defense Council on behalf of Dr. Edwards, Coalition for Clean Water, and Concerned Pastors for Social Action and other interested groups and individuals filed a Petition for Emergency Action against the EPA to force the EPA to take action to abate the imminent and substantial endangerment to the health of Flint residents.
91. On October 8, 2015, the Governor announced that he had ordered the restoration of DWSD water to the Flint water system.
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92. On November 4, 2015, the Del Toral Report was finalized. The report
noted that officials were implementing many of the recommendations contained in
the Interim Report (Flint was switched back to Detroit water, filters were provided
to residents and additional corrosion control was to be implemented).
93. On January 16, 2016, the Governor declared a state of emergency.
94. On January 21, 2016, the EPA issued its Emergency Administrative
Order pursuant to Section 1431 of the Safe Drinking Water Act, 42 U.S.C.§ 300i
stating in part:
The presence of lead in the City water is principally due to lack of corrosion control treatment after the City’s switch to the Flint River as a source in April 2014. The river’s water was corrosive and removed protective coating in the system. This allowed lead to leach into the drinking water, which can continue until the system’s treatment is optimized. Paragraph 25 of Complaint. The City, MDEQ and the State have failed to take adequate measures to protect public health….there continue to be delays in responding to critical EPA recommendations…the EPA remains concerned that the City lacks the professional expertise and resources needed to carry out the recommended actions and to safely manage the City’s PWS. Paragraph 34 of Complaint. 95. On March 17, 2016, EPA Administrator McCarthy testified before
Congress. She appeared before House Oversight and Government Reform
Committee and admitted that the EPA tried but could not achieve corrosion control
in a timely manner. Chairman Representative Jason Chaffetz asked her: “when did
you know they [MDEQ] didn’t do [corrosion control]?” McCarthy said that:
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[W]e [EPA] knew on July 21st of a systemic problem. The state [MDEQ] agreed the next day and then all they did was slow walk [corrosion control]. That’s why we had to do it the way we did. I wished we had gone further. I wish we had gone farther. I wished we had yelled from the tree tops but there is no way that my agency created this problem or there was ambiguity in the law that wouldn’t have done the same that the governor said. Don’t put people at risk just because we couldn’t figure out in the life of us, in our guidance, we never thought anybody goes from a treated system to an untreated system and not treat it [with corrosion control]. I didn’t think we ever had to say that because I never thought anyone would. That’s where we are today.
96. On October 20, 2016, the OIG report was issued which stated in part
that:
“EPA Region 5 had the authority and sufficient information to issue a SDWA Section 1431 emergency order to protect Flint residents from lead- contaminated water as early as June 2015. Region 5 had information that systems designed to protect Flint drinking water from lead contamination were not in place, residents had reported multiple abnormalities in the water, and test results from some homes showed lead levels above the federal action level.
EPA Region 5 did not issue an emergency order because the region concluded the state’s actions were a jurisdictional bar preventing the EPA from issuing a SDWA Section 1431 emergency order. However, the EPA’s 1991 guidance on SDWA Section 1431 orders states that if state actions are deemed insufficient, the EPA can and should proceed with a SDWA Section 1431 order, and the EPA may use its emergency authority if state action is not protecting the public in a timely manner. However, EPA Region 5 did not intervene under SDWA Section 1431, the conditions in Flint persisted, and the state continued to delay taking action to require corrosion control or provide alternative drinking water supplies.”
OIG Report, “At a Glance”
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COUNT I NEGLIGENCE – Failure to take mandatory actions required
by SWDA 97. The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances. 28 U.S.C. § 2674. 98. All of the events which give rise to this cause of action occurred in the state of Michigan. 99. The EPA is liable for the knowledge of and acts and omissions of its agents and employees, including but not limited to, Jennifer Crooks and Dr. Susan Hedman.
100. This case involves a major failure of all levels of government to protect the health and safety of the public. Local, state and federal agencies and employees, working individually and at times in concert with each other, mismanaged this environmental catastrophe.
101. The Michigan Supreme Court has recognized that a “private individual” is subject to the tort duties established by Section 324A of the Restatement of Torts, 2d. See Smith v. Allendale Mut. Ins. Co., 410 Mich. 685,705; 303 N.W.2d 702, 1981 Mich. LEXIS 251 (Mich. 1981) and more recently Fultz v. Union-Commerce Assocs., 470 Mich. 460,464; 683 N.W.2d 587, 2004 Mich. LEXIS 1523 (Mich. 2004) (noting that “Michigan courts have accepted the
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Restatement of Torts, 2d, § 324A, as an accurate statement of Michigan law and used the principles stated above in analyzing plaintiffs' claims in the past”).
102. This section of the Restatement provides: § 324A Liability to Third Person for Negligent Performance of Undertaking One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
103. The EPA undertook the duty of rendering services to the MDEQ “for the protection” of the Flint water users.
A. Failure to Issue § 1431 Emergency Order 104. Upon learning that a contaminant which is present or likely to enter a water system may present a substantial and imminent danger to the health of persons and that the actions of state and local authorities have not been sufficient, the EPA was required to issue a § 1431 emergency order.
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105. An order issued pursuant to §1431 can require state and local officials to take actions to protect the public including providing alternative water supplies at no cost to the consumer as well as public notification of the hazard.
106. Despite learning as early as October 2014 that Flint water users were being exposed to a substantial and imminent danger due to a contaminant in the water system about which the Michigan and Flint officials had failed to take sufficient actions to remedy, the EPA failed to fulfill its mandatory duty to issue a § 1431 emergency order. This failure persisted until January 2016.
B. Failure to Provide Technical Assistance, Obtain Compliance and Commence Civil Action Under § 1414
107. Pursuant to § 1414 of the SWDA, when the EPA learns that state or local water provider has not complied with the requirements for safe drinking water, the EPA must provide expert advice and technical assistance. If compliance is not obtained within 30 days, the EPA must issue an order requiring the public water system to comply or commence a civil action.
108. The EPA had notice that the Flint water system was not in compliance with the requirements of the SWDA as early as October 2014.
109. Despite notice of non-compliance in October 2014, the EPA did not provide advice and technical assistance until September 2015 and never issued an order or commenced a civil action to require the State of Michigan or the City of
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Flint to bring the Flint water system in compliance with the requirements of the SWDA as required by § 1414.
C. Negligent Undertaking Regarding Corrosion Control 110. In February, 2015, the EPA rendered service to the MDEQ and responded to LeeAnn Walters’ complaints about being exposed to contaminated Flint River water. 111. Upon undertaking this task, the EPA owed a duty of reasonable care to prevent or reduce the risk of harm to Walters and the other CLAIMANTS. 112. The Statement of Facts recited above establishes that the EPA was an active participant in the mismanagement of the unfolding environmental disaster. 113. Crooks was aware that the Flint River was highly corrosive and that Flint had older corroded lead service pipes which required corrosion control treatment. She knew in February 2015, that Del Toral observed lead based “black sediment” in the Walters water and that Jan Burgess reported in October 2014 floating particles in her water. 114. Crooks in February 2015 was aware that exposure to the Flint River water was causing skin rashes and falling clumps to hair from a family member of the Flint Tech Advisory Board.
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115. In February 2015, EPA agent Del Toral informed Crooks that the absence of corrosion control treatment provided a possible explanation for the presence of lead particles floating in the water.
116. Based on the facts supplied by Del Toral and Jan Burgess, Crooks knew or should have known that corrosion control treatment was essential for safe distribution of the Flint River water and that this treatment was probably absent from the treatment of the water.
117. By April 25, 2015, the EPA was positive that corrosion control was not being used yet failed to suggest, direct or counsel the MDEQ and Flint to implement a corrosion control program until July 2015.
118. By April 2015, this probability became a certainty and the EPA had a firm and clear knowledge that the MDEQ either refused or was incapable of managing the technical aspects that ensured that all environmental laws were adhered to.
119. Even after the EPA directed the MDEQ and Flint to implement corrosion control in July 2015, the EPA knew that the MDEQ and Flint “slow walked” the process as testified to by EPA Administrator McCarthy on March 17, 2016.
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120. EPA Region 5 had the authority and sufficient information to require the issuance of a SDWA Section 1431 emergency order to protect Flint residents from lead contaminated water as early as October 2014.
121. Region 5 had information that systems designed to protect Flint drinking water from lead contamination were not in place, e.g. residents had reported multiple abnormalities in the water, and test results from some homes showed lead levels above the federal action level.
122. In September 2015, EPA Region 5 finally briefed the EPA headquarters’ Office of Enforcement and Compliance Assurance (OECA) about Flint’s water crisis.
123. OECA immediately advised the region take SDWA Section 1431 action. During the fall, the state began to take actions to correct the problems in Flint. EPA Region 5 maintained that the state was acting, but the contamination continued. The EPA Administrator finally directed OECA to issue an emergency order on January 21, 2016. The emergency order stated the EPA had determined that Flint’s and Michigan’s responses to the drinking water crisis were inadequate, and the EPA ordered specific actions to address a public health threat.
124. The failure of the EPA to comply with its duty under both § 1414 and §1431 of the SWDA, to issue a section 1431 emergency order, to provide advice and technical assistance to obtain compliance with the requirements of the SWDA and
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to issue an order or commence an action against state and local officials to obtain compliance including requiring immediate corrosion control treatment was unreasonable and unquestionably increased the risk and level of harm to CLAIMANTS. Restatement of Torts, 2d § 324A (a).
125. The EPA, in rendering services to the MDEQ, undertook the duty owed by the MDEQ to CLAIMANTS. Restatement of Torts, 2d § 324A (b).
126. The EPA breached this duty to CLAIMANTS when it unreasonably delayed in requiring Flint to promptly implement corrosion control and in failing to promptly notify Flint water users of the contamination of the water supply and the hazardous situation.
COUNT II Negligent Performance of Undertaking Regarding Timely Investigations
127. Burgess and other CLAIMANTS submitted to the EPA complaints and notices of violations in connection with their exposure to poor quality water caused by the distribution of the highly corrosive Flint River water.
128. The EPA undertook the obligation to timely investigate complaints and in so doing imposed upon itself a duty to investigate the complaints in a careful and reasonable manner so that once violations of law or regulation were detected a proper and prompt remedy could and would be pursued.
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129. Burgess, for herself and on behalf of other CLAIMANTS, relied on the EPA to undertake the task of investigating complaints and fashioning the appropriate remedy. Restatement of Torts, 2d § 324A (c).
130. If the investigation had been undertaken in a timely fashion, a violation of environmental law would have been detected and City of Flint would have been required to implement corrosion control treatment or to develop another remedy to prevent harm to CLAIMANTS.
COUNT III Negligent Undertaking of the Duty to Warn the Public of Environmental
Risks to Public Health 131. The EPA, in employing environmental safety experts such as Del Toral, undertook the task of providing the MDEQ with environmental safety technical advice and expertise regarding the consequences of using the Flint River as a primary drinking water source. 132. On June 24 and 25, 2015, Del Toral advised the EPA the public’s exposure to lead was “widespread” and that the environmental catastrophe facing Flint should not be concealed and the citizens must be warned of the public health and safety risks. 133. Yet the EPA concealed from the public the environmental dangers and risks and the failure to immediately warn them of the public of the public health emergency bordered on “criminal neglect.”
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134. Notwithstanding this advice from its expert as to how to implement a mitigation of harm plan, the EPA remained silent when it should have spoken out and it knowingly permitted and facilitated the MDEQ and City of Flint in the concealment of the environmental disaster identified by Del Toral. See Restatement of Torts, 2d § 324A (b).
135. The failure to warn CLAIMANTS and the citizens of Flint of the environmental disaster and ensuing cover-up significantly increased the harm to the Citizens of Flint for which the EPA is responsible. Restatement of Torts, 2d § 324A (a).
DAMAGES 136. As a result of the EPA’s negligence CLAIMANTS have experienced and will continue to experience physical injury, illness, lead poisoning, dermatological disorders, loss of hair, gastrointestinal disorders, out of pocket economic losses; CLAIMANTS have experienced and will continue to experience pain and suffering, emotional distress, deprivation of a quality of life; CLAIMANTS have experienced property damage to real estate and personal property; CLAIMANTS have experienced a loss of property value. 137. The aggregate damages for personal and property injuries and losses are $2,370,497,400.00
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Accordingly, Plaintiff demands judgment for herself and the 2,959 individuals who have filed administrative claims against the USA in the amount of $2,370,497,400.00 or whatever amount in excess of that amount the Court deems appropriate.3

3 See footnote 1.

Respectfully submitted,
By:/s/ Michael L. Pitt P24429 Michael L. Pitt P24429 Cary S. McGhee P42318 Beth M. Rivers P33614 PITT McGEHEE PALMER & RIVERS, PC 117 W. Fourth Street, Suite 200 Royal Oak, Michigan 48067 Telephone: (248) 398-9800 mpitt@pittlawpc.com cmcghee@pittlawpc.com brivers@pittlawpc.com
Deborah Labelle P31595 LAW OFFICES OF DEBORAH LaBELLE 221 N. Main Street, Suite 300 Ann Arbor, Michigan 48104 (734) 996-5620 deblabelle@aol.com
William H. Goodman P14173 Julie H. Hurwitz P34720 Kathryn Bruner James P71374 GOODMAN & HURWITZ, PC 1394 E. Jefferson Ave. Detroit, Michigan 48207 Telephone: (313) 567-6170 bgoodman@goodmanhurwitz.com
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Dated: March 6, 2019

jhurwitz@goodmanhurwitz.com kjames@goodmanhurwitz.com
Trachelle C. Young P63330 TRACHELLE C. YOUNG & ASSOCIATES PLLC 2501 N. Saginaw St. Flint, Michigan 48505 Telephone: (810) 239-6302 trachelleyoung@gmail.com
Brian McKeen P34123 McKEEN & ASSOCIATES, PC Attorneys for Plaintiffs 645 Griswold Street, Suite 4200 Detroit, Michigan 48226 (313) 961-4400 BjMcKeen@mckeenassociates.com
Teresa Caine Bingman P56807 THE LAW OFFICES OF TERESA A. BINGMAN 1425 Ambassador Drive Okemos, MI 48864 (877) 957-7077 tbingman@bingmanlaw.com
Cynthia M. Lindsey (P37575) Shermane Sealey (P32851) Cynthia M. Lindsey & Associates Attorneys for Plaintiffs 8900 E. Jefferson Avenue, Suite 612 Detroit, MI 48214 (248) 766-0797 cynthia@cmlindseylaw.com shermane@cmlindseylaw.com
Counsel for Plaintiffs

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 Case 4:17-cv-11218-LVP-RSW ECF No. 76 filed 04/18/19 PageID.2614 Page 1 of 45

UNITED STATE DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAN BURGESS, and all 2,959 individuals identified in the Burgess FTCA administrative Complaint,

Plaintiffs, v.

Civil Case No. 17-11218 Honorable Linda V. Parker

UNITED STATES OF AMERICA,

Defendant. __________________________________/

WILLIAM THOMAS, and all 1,923 individuals identified in the Thomas FTCA administrative Complaint,

Plaintiffs, v.

Civil Case No. 18-10243 Honorable Linda V. Parker

UNITED STATES OF AMERICA,

Defendant. __________________________________/

OPINION AND ORDER

This is one of many cases emerging from what is now infamously known as

the Flint Water Crisis. The crisis arose when the City of Flint, Michigan (“City” or

“Flint”), changed the source of its water supply from the Detroit Water and

Sewerage Department (“DWSD”) to the Flint River. The raw water drawn from

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the Flint River, processed through Flint’s outdated and previously mothballed water treatment plant, was highly corrosive and not properly treated by the City’s public works department. As a result, water with excessive lead and copper levels flowed through the City and into residents’ homes, causing them physical injury and damage to water mains and service lines.
The Sixth Circuit recently described “[t]he harmful effects” from the switch in water sources as “swift” and “severe.” Guertin v. State of Michigan, 912 F.3d 907, 915 (2019). Flint residents complained of foul smelling and tasting water, their hair began to fall out, they developed skin rashes, there were positive tests for E. coli, a spike in Legionnaires’ disease, and an elevation in the blood lead levels of Flint’s children. Id. Criminal and civil proceedings have followed to hold the many Michigan and Flint officials and employees and independent contractors legally responsible for this crisis. See, e.g., id.; Mich. Dep’t of Env. Quality v. City of Flint, 282 F. Supp. 3d 1002, 1004 (E.D. Mich. 2017) (listing some of the cases). In the above-captioned lawsuits, groups of Flint residents are suing the United States for the Environmental Protection Agency’s role under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671-2680.1
1 Three additional and substantively identical lawsuits filed by different groups of plaintiffs against the United States are also pending before the undersigned: Abraham v. United States, No. 19-cv-10625 (E.D. Mich. filed Mar. 4, 2019); Adams v. United States, No. 18-cv-13166 (E.D. Mich. filed Oct. 10, 2018); Cont’d…
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Plaintiffs allege that Environmental Protection Agency (“EPA”) officials and employees negligently responded to the water crisis, including by failing to utilize the agency’s enforcement authority under the Safe Drinking Water Act (“SDWA”) to intervene, investigate, obtain compliance, and warn Flint residents of the health risks posed by the water. The United States (hereafter also “Government”) has filed motions to dismiss Plaintiffs’ lawsuits for lack of subject matter jurisdiction. The United States contends that it has not waived its immunity from Plaintiffs’ claims because Michigan law would not impose liability on private individuals in similar circumstances—the extent to which the FTCA only waives Government immunity—and because the alleged misconduct by the EPA is excepted from liability under the FTCA’s discretionary function exception. The motions have been fully briefed.
The impact on the health of the nearly 100,000 residents of the City of Flint remains untold. It is anticipated, however, that the injury caused by the leadcontaminated public water supply system will affect the residents for years and likely generations to come. While this Court will not decide today the issue of ultimate liability, it can today state with certainty that the acts leading to the creation of the Flint Water Crisis, alleged to be rooted in lies, recklessness and
Anderson v. E.P.A., No. 18-cv-12725 (E.D. Mich. filed Aug. 31, 2018). The Court has entered stipulated orders staying those cases pending its decision on the motions here.
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profound disrespect have and will continue to produce a heinous impact for the people of Flint.
The issue presented to the Court by the Government’s pending motions to dismiss is not whether EPA officials and employees were negligent or even abused their discretion in responding to the Flint Water Crisis. Instead, the issue is whether the Government is subject to tort liability under the FTCA for that conduct. I. Standard for Dismissal
The Government’s motions to dismiss for lack of subject matter jurisdiction are filed pursuant to Federal Rule of Civil Procedure 12(b)(1). Where the defendant is raising a factual challenge to the existence of subject matter jurisdiction, as is the case here, the court must “‘weigh the conflicting evidence to arrive at the factual predicate that subject-matter does or does not exist.’” Wayside Church v. Van Buren Cty., 847 F.3d 812, 817 (6th Cir. 2017) (quoting Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co., 491 F.3d 320, 330 (6th Cir. 2008)). “[N]o presumptive truthfulness applies to the [plaintiff’s] factual allegations” and the “court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat’l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990).
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“‘[I]t is a universal rule . . . that a party who invokes the jurisdiction of a federal court must allege all facts necessary to give the court jurisdiction of the subject matter.’” Carlyle v. United States, 674 F.2d 554, 556 (6th Cir. 1982) (quoting Stewart v. United States, 199 F.2d 517, 520 (7th Cir. 1952)). Therefore, a plaintiff suing under the FTCA must invoke jurisdiction by alleging facts not excepted under the statute. Id. This includes facts establishing that the complaint is facially outside the exceptions of the FTCA’s discretionary function exception. Id. If the plaintiff succeeds, the burden falls on the government to prove the FTCA’s inapplicability, including that the plaintiff’s claims fall within any of the statute’s exceptions. II. Background Regarding Control of Public Water Supply Systems in
Michigan and the EPA The SDWA was enacted in 1974 “to assure that water supply systems serving the public meet minimum national standards for protection of public health.” H.R. Rep. No. 93-1185 (1974), reprinted in 1974 U.S.C.C.A.N. 6454, 6454. The statute authorizes the EPA “to establish Federal standards for protection from all harmful contaminants[] … applicable to all public water systems[.]” Id. at 6454-55. It also “establish[es] a joint Federal-State system for assuring compliance with th[o]se standards and for protecting underground sources of drinking water. Id. at 6455.
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States adopting, among other things, drinking water regulations that are no less stringent than the national primary drinking water regulations are eligible to obtain primary enforcement authority [primacy] over their public water systems. 42 U.S.C. § 300g-2(a)(1). Michigan has obtained primacy and the Michigan Department of Environmental Quality (“MDEQ”) thus has primary enforcement authority with respect to the State’s water systems. See Mays v. City of Flint, 871 F.3d 437, 446 (6th Cir. 2017). As the Sixth Circuit has described it, “the MDEQEPA relationship is a model of cooperative federalism ….” Id. at 447.
Nevertheless, the SDWA reserves the EPA’s oversight and primacy States must periodically submit compliance reports to the EPA for that purpose. 42 U.S.C. §§ 300g-3, 300i; see also 40 C.F.R. §§ 141.82(i), 141.83(b)(7), 141.90, 142.15, 142.19, 142.30. For example, Section 1414 of the statute sets forth the EPA’s response when a public water system is not in compliance. With respect to primacy States, the provision reads in relevant part:
(a) Notice to State and public water system; issuance of administrative order; civil action (1)(A) Whenever the Administrator finds during a period during which a State has primary enforcement responsibility for public water systems (within the meaning of section 300g-2(a) of this title) that any public water system-(i) for which a variance under section 300g-4 or an exemption under section 300g-5 of this title is not in effect, does not comply with any applicable requirement, or
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…
he shall so notify the State and such public water system and provide such advice and technical assistance to such State and public water system as may be appropriate to bring the system into compliance with the requirement by the earliest feasible time.
(B) If, beyond the thirtieth day after the Administrator’s notification under subparagraph (A), the State has not commenced appropriate enforcement action, the Administrator shall issue an order under subsection (g) requiring the public water system to comply with such applicable requirement or the Administrator shall commence a civil action under subsection (b).
42 U.S.C. § 300g-3. Section 1431 of the statute grants the EPA certain emergency
powers:
(a) Actions authorized against imminent and substantial endangerment to health
Notwithstanding any other provision of this subchapter, the Administrator, upon receipt of information that a contaminant which is present in or is likely to enter a public water system or an underground source of drinking water, or that there is a threatened or potential terrorist attack (or other intentional act designed to disrupt the provision of safe drinking water or to impact adversely the safety of drinking water supplied to communities and individuals), which may present an imminent and substantial endangerment to the health of persons, and that appropriate State and local authorities have not acted to protect the health of such persons, may take such actions as he may deem necessary in order to protect the health of such persons. To the extent he determines it to be practicable in light of such imminent endangerment, he shall consult with the State and local authorities in order to confirm the correctness of the information on which action proposed to be taken under this subsection is based and to ascertain the action which such authorities are or will be taking. The action which the Administrator may take may include (but shall not be limited to) (1) issuing such orders as may be necessary to protect the health of persons who are or may be users of such system
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(including travelers), including orders requiring the provision of alternative water supplies by persons who caused or contributed to the endangerment, and (2) commencing a civil action for appropriate relief, including a restraining order or permanent or temporary injunction. 42 U.S.C. § 300i. The EPA has enacted regulations pursuant to the SDWA setting forth primacy States’ obligations and the EPA’s oversight and responsibilities. See 40 C.F.R. §§ 142.10 et seq. The EPA has ten regional offices, each of which is responsible for executing EPA programs within several States and territories. “Region 5” serves six States, including Michigan, and a number of tribes. Congress has granted the EPA Administrator the authority to “delegate any of his functions under [the statute] (other than prescribing regulations) to any officer or employee of the Agency.” 42 U.S.C. § 300j-9. The EPA Administrator has delegated his authority under Sections 1414 and 1431 of the SDWA, 42 U.S.C. §§ 300g-3 and 300i, to the Regional Administrators and the Assistant Administrator for Enforcement and Compliance Assurance. (Def’s Mot. Exs. 66-68, ECF Nos. 41-7, 41-8, 41-9.)2 Against this legislative and administrative backdrop, the Court turns to the facts relevant to Plaintiffs’ allegations in these lawsuits.
2 All docket citations in this Opinion and Order are to Burgess v. United States, No. 17-11218.
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III. Factual Background Flint owns and operates a public water system that provides drinking water
to its nearly 100,000 citizens. Before April 2014, Flint purchased finished drinking water from the DWSD. DWSD drew its water from Lake Huron and treated the water to control potential contaminants, including copper and lead levels.
In approximately late April 2014, Flint switched its water source from DWSD to the Flint River. The use of the Flint River as a water source was intended to be temporary, as Flint planned to connect to the Karegnondi Water Authority pipeline in 2016, which also draws its water from Lake Huron. (See Def.’s Mot. Ex. 43 at 1, ECF No. 40-3 at Pg ID 1349.) MDEQ and Flint did not, and were not required to, notify the EPA of the changing water sources for Flint. (Def.’s Mot. Ex. C at 37, ECF No. 37-3 at Pg ID 862.) The EPA does not approve such a switch in a primacy State. (Id. at 35, Pg ID 862; Ex. 15 at 2.) MDEQ approved Flint’s water source change, but did not require Flint to begin corrosion control prior to the switch. (Ex. 2 at 1, ECF No. 38-1; Ex. 3 at 2, ECF No. 38-2 at Pg ID 1142.) MDEQ interpreted the Lead and Copper Rule (“LCR”) as allowing Flint to complete two consecutive six-month rounds of sampling prior to determining what, if any corrosion control treatment was needed for the Flint River water. (Id. Ex. 20, ECF No. 39-3 at Pg ID 1206-07; Ex. 22 at 1-3, ECF No. 39-5 at
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Pg ID 1209-1211.) Its wrongful and damaging interpretation was later admitted by MDEQ Director Dan Wyant.
The Flint River provided inconsistent water quality because of elevated levels of organic matter. (Id. Ex. 35 at 1, ECF No. 39-18 at Pg ID 1313.) By August 2014, elevated levels of fecal coliform and E. coli bacteria were detected in the water and the MDEQ issued a “boil water advisory” instructing Flint residents to not drink the water. (Def.’s Mot. Ex. E at 66, ECF No. 37-5 at Pg ID 975; Pls.’ Resp. Ex. 70 at 7, ECF No. 53-27 at Pg ID 2114.) A second E. coli exceedance occurred on September 5, 2014. (Id.) The City’s use of chlorine to address bacteria exceedances led to another problem—high levels of total trihalomethane (“TTHM”), which poses health risks to consumers. (Pls.’ Resp. Ex. 3, ECF No. 53-4 at Pg ID 1931; Ex. 70 at 7, ECF No. 53-27 at Pg ID 2114.)
Flint’s residents immediately noticed the change in the quality of the water when the City switched its water source to the Flint River. Jennifer Crooks, Region 5’s Michigan Program Manager for the Drinking Water Program, who was responsible for reviewing and responding to complaints from Michigan citizens on the agency’s behalf, testified in this matter that she had never received as many citizen complaints since she began working for the EPA in 1987 than she did after the Flint water switch. (Def.’s Mot. Ex. E at 29, 30-32, ECF No. 37-5 at Pg ID 965-66.) When Region 5 received citizen complaints from Michigan residents,
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employees would discuss the issues with technical contacts, check for violations in the various databases, and contact the State person responsible for the water system and discuss the complaint. (Id. Ex. E at 24, 49, ECF No. 37-5 at Pg ID 964, 970; Ex. F at 33-34, ECF No. 37-6 at Pg ID 1018-19.) After Region 5’s employees conducted background research and communicated with the State, they responded to citizens through emails, phone calls, and written letters. (Id. Ex. E at 36-37; see also id. Exs. 15, 16, 18.)
In its communications with Flint residents, the EPA indicated that MDEQ was working closely with the City “to ensure that the citizens of Flint are provided drinking water that meets health standards.” (See, e.g., id. Ex. 15 at 1, ECF No. 58-14 at Pg ID 1184.) The EPA informed Flint’s residents that “[t]he most recent laboratory analyses obtained from MDEQ of the City of Flint’s drinking water indicate that almost all regulated contaminants meet State and Federal health standards, as required under the Federal and Michigan Safe Drinking Water Acts.” (Id.) TTHMs pose a health risk for some sub-populations, such as the immunecompromised and pregnant women. (See id. Ex. 14 at Pg ID 1183.) Despite being aware of those risks (see id.), the EPA did not convey those risks in at least some of its communications with Flint residents. (See id. Exs. 15, 18.)
In early 2015, Flint citizen LeeAnn Walters contacted the EPA after receiving the test results of drinking water samples the City of Flint had collected
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from her home. (Def.’s Mot. Ex. 3 at 2-3, ECF No. 38-2 at Pg ID 1142-43.) Those results showed highly elevated lead and iron levels.3 (Id.) Ms. Crooks from Region 5 sent an email to MDEQ the day after receiving the test results, documenting her concerns and requesting assistance in dealing with the high lead levels in the Walters’ home. (Id. Ex. E at 69, ECF No. 37-5 at Pg ID 975.) MDEQ indicated in response that the lead was coming from the home’s plumbing, although Ms. Walters had indicated that all of the plumbing was plastic. (Id. Ex. 3 at 3, ECF No. 38-2 at Pg ID 1143.)
Ms. Crooks and Miguel Del Toral, Region 5’s Regulations Manager for the Groundwater and Drinking Water Branch, were in subsequent communication with MDEQ and the City concerning Ms. Walters’ situation and whether there was a more widespread lead issue. (See Pls.’ Resp. Ex. 1, ECF No. 53-2.) In a February 26, 2015 email to MDEQ officials, Ms. Crooks stated that (1) Flint must have Optimized Corrosion Control Treatment (“OCCT”), (2) the test results for the Walters’ home must “be included in with compliance calculation of the 90th percentile”, and (3) the City cannot flush the system in advance of taking compliance samples. (Id. at 3-4, Pg ID 1921-22.) Mr. Del Toral, who had been copied on Ms. Crooks’ email, sent a follow-up email to MDEQ on February 27,
3 The LCR results from the Walters’ home showed a level of 104 ppb for lead. (Pls.’ Resp. Ex. 1 at 5, ECF No. 53-2 at Pg ID 1924). The regulatory limit is 15 ppb. (Id.)
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2015, explaining his concerns about the lead situation and Flint’s testing protocols. (Id. at 2-3, Pg ID 1920-21.) Mr. Del Toral conveyed that pre-flushing the tap before collecting testing samples “biases the results low by eliminating the highest lead values” and “provides false assurance to residents about the true lead levels in the water.” (Id.) Mr. Del Toral suggested that MDEQ contact Region 5’s “resident expert”, Mike Schock, for help with compliance. (Id.) Ms. Crooks forwarded Mr. Schock’s contact information to MDEQ the same day. (Id.)
On February 27, 2015, Stephen Busch from the MDEQ responded to Ms. Crooks’ and Mr. Del Toral’s emails, thanking them for their information and indicating: “[W]e will take it under consideration.” (Id. at 1, Pg ID 1919.) Mr. Busch represented in the same email, among other things, that Flint “[h]as an Optimized Corrosion Control Program”, “[c]onducts quarterly Water Quality Parameter monitoring at 25 sites and has not had any unusual results[,]” and “[h]as never had a 90th percentile lead AL exceedance[.]” (Id.)
Region 5 visited the Walters’ home on April 27 and May 6, 2015, to inspect the plumbing and conduct additional testing. (Def.’s Mot. Ex. 3 at 3, ECF No. 382 at Pg ID 1143.) Finding that the interior plumbing was primarily plastic, the EPA concluded that it was not the source of the high lead levels found in the water at the residence. (Id.) Shockingly, as Mr. Del Toral noted in an email to colleagues within Region 5, local officials were telling Flint residents that the
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source of the high lead was the home’s internal plumbing. (Pls.’ Resp. Ex. 2 at 5, ECF No. 53-3 at Pg ID 1929.)
During EPA’s May 6 trip to the Walters’ home, the service line to the residence was replaced and the EPA sent three portions of the extracted line for testing, which confirmed that a portion of the line was made of galvanized iron pipe. (Id.) The EPA’s inspection of the remaining portion confirmed that the service line from the water main to the external shut-off valve was lead. (Id.) Region 5 collected water samples from other Flint residents’ homes, which also showed noncompliant lead levels. (Id. at 4, Pg ID 1144.)
Meanwhile, on April 23, 2015, Mr. Del Toral sent an email to MDEQ asking: “What’s Flint doing now (post Detroit) for corrosion control treatment?” (Pls.’ Resp. Ex. 2 at 4, ECF No. 53-3 at Pg ID 1928.) MDEQ responded the following day, indicating that Flint is not practicing CCT and that the results of testing for two six-month periods indicated that no treatment was needed. (Id. at 3, Pg ID 1927.) Mr. Del Toral emailed MDEQ on April 25, 2015, expressing his concern regarding the lack of CCT following the water source switch considering the known corrosivity of the Flint River and the City’s extensive lead service lines. (Id. at 1, Pg ID 1925.) Mr. Del Toral further reemphasized that the City’s preflushing ahead of compliance sampling may be distorting test results. (Id.) Mr. Del Toral expressed that “[g]iven the very high lead levels found at one home and
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the pre-flushing happening at Flint . . . the whole town may have much higher lead
levels than the compliance results indicated ….” (Id.)
In May and June 2015, EPA Region 5 staff continued to express concern to
MDEQ and the City about increasing concentrations of lead in Flint’s drinking
water and the City’s lack of corrosion control treatment and offered the EPA’s
expertise to move forward and rectify the water quality problems. (Def.’s Mot. Ex.
32 at 3, ECF No. 39-15 at Pg ID 1294; Ex. 3 at 4, ECF No. 38-2 at Pg ID 1144;
Pls.’ Resp. Ex. 6 at 1, ECF No. 53-7 at Pg ID 1945.) During this period, Mr. Del
Toral prepared the EPA’s interim report on high lead levels in Flint’s water
system, which was circulated to his colleagues. In the report, Mr. Del Toral
indicated that Flint was not including tests from homes showing high lead levels in
its compliance sampling pool. (Pls.’ Resp. Ex. 3 at 5, ECF No. 53-4 at Pg ID
1935.) He also expressed concern that this omission, as well as Flint’s sampling
procedures, conceal a more wide-spread problem with high lead levels throughout
the City’s water supply. (Id. at 2, Pg ID 1932.) As Mr. Del Toral further
explained in an email to his colleagues:
The widespread high lead is my judgment based on a couple of decades of working with lead issues and I stand by it despite the limited data set from Flint. A simple application of scientific principles to the circumstances in Flint along with the limited data are enough to know that there is a problem there. They have no corrosion control treatment in place for over a year now and they have lead service lines. It’s just basic chemistry on lead solubility. You will have high lead leaching into the water where you are doing nothing to
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mitigate that. We don’t need to drop a bowling ball off every building in every town to know that it will fall to the ground in all of these places. The fact that their sampling is designed not to capture lead (everything is fine) does not negate our scientific understanding of what is going on. The only reason we don’t have more data is because the City of Flint is flushing away the evidence before measuring it. … (Id., Ex. 5 at 3, ECF No. 53-6 at Pg ID 1942.) Tinka Hyde, the Director of the Water Division for Region 5, convened a formal conference call with MDEQ management on July 21, 2015, to discuss the status of Flint’s lead sampling results (including MDEQ’s position on pre-flushing) and MDEQ’s interpretation of the LCR, which conflicted with Region 5’s interpretation. (Def.’s Mot. Ex. 20, ECF No. 39-3 at Pg ID 1206-07.) The EPA interpreted the rule as requiring a public water system to use optimal corrosion control treatment upon switching water sources. (See id. Ex C at 41-42, ECF No. 37-3 at Pg ID 863-64; Ex. 11 at 1-2, ECF No. 38-10 at Pg ID 1169-70.) MDEQ decided to treat Flint’s change in water sources as a “new source” which would require OCCT only after monitoring reflects the need for treatment. (See id. Ex. 20 at 1, ECF No. 39-3 at Pg ID 1206.) In preparation for the July 21, 2015 conference call between EPA and MDEQ, EPA drafted a “Briefing Paper” which reflects what EPA already knew about Flint’s water crisis and state and local officials’ response (or lack thereof) to that crisis. (See Pls.’ Resp. Exs. 11, 22, ECF Nos. 53-8, 53-16.) This included the
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fact that Michigan was not requiring corrosion control in Flint. (Id.) It further
reflects EPA’s knowledge that Flint was not including in its testing the citizen-
requested samples where high-lead levels were detected—despite EPA’s direction
that they needed to be included—and EPA’s knowledge that Flint was “pre-
flushing” lines before sampling—again, despite EPA’s explanation of why this
distorts testing. (Id.) These documents also reflects EPA s expectation that proper
sampling would show high lead levels in the water supplied to Flint residents and a
need for corrosion control. (Id.)
During the July 21, 2015 conference call, MDEQ requested an opinion from EPA headquarters to resolve the discrepancy in the LCR interpretation.4 (Id.; see
also Ex. C at 42, ECF No. 37-3 at Pg ID 864.) MDEQ nevertheless communicated
a willingness “to initiate discussion with Flint sooner rather than later on corrosion
control.” (Id., Ex. 20 at 1, ECF No. 39-3 at Pg ID 1206.) But MDEQ was
unwilling to budge on its pre-flushing requirement until new regulations were
issued, maintaining that the State’s lead compliance sampling procedures comply
4 In response to this request, the EPA issued a policy memorandum on November 3, 2015, clarifying how the LCR should be interpreted on a prospective basis and agreeing with Region 5’s interpretation. (Def.’s Resp. Ex. 31, ECF No. 39-14.) In the memo, EPA headquarters recognized that “the language of the LCR does not specifically discuss [the situation where a public water system disconnects from one source and begins distributing water from another source]” and “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 …..” (Id. at 1, Pg ID 1290.)
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with federal SDWA requirements and that pre-flushing instructions are not requirements but suggestions. (Id. at 2, Pg ID 1207.) Region 5 again offered the EPA’s technical assistance. (Id. Ex. 20 at 1-2, ECF No. 39-3 at Pg ID 1206-07.)
On August 17, 2015, MDEQ instructed Flint to implement corrosion control as soon as possible, but no later than January 1, 2016, and to fully optimize its treatment within six months. (Def.’s Mot. Ex. C at 52, ECF No. 37-3 at Pg ID 866; Ex. 32 at 3, ECF No. 39-15 at Pg ID 1294; Pls.’ Resp. Ex. 70 at 15, ECF No. 53-27 at Pg ID 2122.) During an August 31, 2015 conference call between MDEQ and Region 5, the results of the second six-month (January-July 2015) monitoring test results for Flint were discussed, which reflected that corrosion control was needed. (Pls.’ Resp. Ex. 70 at 15, ECF No. 53-27 at Pg ID 2122.) During this call, Region 5 discussed the need for outreach to Flint’s citizens to reduce their exposure to high lead levels in the drinking water and reiterated the offer of technical assistance in implementing corrosion control treatment. (Def.’s Mot. Ex. 32 at 3, ECF No. 39-15 at Pg ID 1294.) But Region 5 viewed MDEQ as having the responsibility to alert the public as the primacy agency. (Id. Ex. C at 109, ECF No. 37-3 at Pg ID 880).
Instead, as EPA’s agents were well aware, City officials continued to assure Flint residents that there was no corrosivity issue and that MDEQ and the EPA found the City in compliance with safe water standards. (Pls.’ Resp. Ex. 47 at 3,
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ECF No. 53-22 at Pg ID 2059.) At the same time, the EPA learned that pediatricians at Hurley Medical Center in Flint had conducted a study which showed a rise in the blood lead levels of Flint’s children after the switch to the Flint River as the City’s water source. (Id. at 2-3, Pg ID 2058-59.) For example, in the two zip codes where the highest level of lead was found in the water, the EBL (elevated blood lead) levels for infants less than fifteen months old rose from 1.5% to 4.4%. (Id.) The rest of Flint had an increase from .6 to 1.1% for the same age group. (Id.) There was no change, in comparison, for non-Flint infants less than fifteen months old. (Id.) For children less than five-years old, EBL levels rose from 2.1% to 4.0% throughout Flint and from 2.5% to 6.3% in the two mostaffected zip codes. (Id.)
On September 3, 2015, Flint’s Mayor announced that the City would implement corrosion control treatment and invited EPA corrosion control experts to join the Flint Technical Advisory Committee (“TAC”). (Def.’s Mot. Ex. 32 at 4, ECF No. 39-15 at Pg ID 1295.) On October 7, 2015, the TAC recommended that MDEQ direct Flint to resume purchasing treated water from the DSWD, now called the Great Lakes Water Authority. (Id. Ex. G at 73, 75-76; ECF No. 37-3 at Pg ID 1078; Ex. 32 at 4, ECF No. 39-15 at Pg ID 1295.) On October 16, 2015, the EPA established the Flint Safe Drinking Water Task Force (“EPA Flint Task Force”) to provide technical expertise to MDEQ and the City. (Ex. 32 at 4, ECF
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No. 39-15 at 1295.) On the same date, Flint switched back to purchasing finished water from Detroit.
Despite the switch, corrosion control treatment remained necessary because the corrosive Flint River water had eroded away the protective coatings in the system. (See id. Ex. G at 76, ECF No. 37-7 at Pg ID 1078, Ex. 32 at 5, ECF No. 39-15 at Pg ID 1296.) On November 25, 2015, and on subsequent dates, the EPA Flint Task Force requested information which was not being shared to assess the City’s progress with corrosion control. (Id. Ex. 32 at 4-5, ECF No. 39-15 at Pg ID 1295.) Without the information, the EPA could not evaluate whether the contamination in the City’s water system had been eradicated. (Id.) While the City began additional corrosion control treatment in early December 2015, the EPA was not assured that high levels of lead and other contaminants had been removed from the water system. (Id.)
On December 14, 2015, the City declared an emergency. On January 14, 2016, Michigan’s Governor requested emergency disaster assistance. Two days later, President Obama declared a federal emergency in the City. On January 21, 2016, the EPA issued an emergency order pursuant to Section 1431 of the SDWA. (Id. Ex. 32, ECF No. 39-15 at Pg ID 1292-1309.) The EPA identified several reasons for issuing the order at that time, including continued “delays in responding to critical EPA recommendations and in implementing the actions
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necessary to reduce and minimize the presence of lead and other contaminants in the water supply” presently and moving forward. (Id. at 8 at Pg ID 1299.) Further, the EPA noted MDEQ’s and the City’s failure and continued failure to provide necessary information for the EPA, the EPA Flint Task Force and Flint citizens “to fully understand and respond promptly and adequately to the current deficiencies.” (Id.) Additionally, the City viewed its switch back to Detroit water as temporary and planned to eventually move to untreated water from KWA. The EPA viewed the transition as posing “complex technical and managerial challenges … that have serious implications for drinking water safety and public health.” (Pls.’ Resp. Ex. 63 at 2, ECF No. 41-4 at Pg ID 1723.) The EPA was concerned that the City lacked the professional expertise and resources to manage the transition and carry out the recommended actions to safely manage the City’s water system. (Id.; Def.’s Mot Ex. 32 at 8, ECF No. 39-15 at Pg ID 1299.)
On October 20, 2016, the EPA Office of Inspector General (OIG) issued a “Management Alert” in which it found that “Region 5 had the authority and sufficient information to issue a SDWA Section 1431 emergency order to protect Flint residents from lead-contaminated water as early as June 2015.” (Pls.’ Resp. Ex. 53 at 1, ECF No. 53-25 at Pg ID 2019.) The OIG indicated that “EPA’s 1991 guidance on SDWA Section 1431 orders states that if state actions are deemed insufficient, the EPA can and should proceed with a SDWA Section 1431 order,
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and the EPA may use its emergency authority if state action is not protecting the public in a timely manner.” (Id.) IV. Applicable Law and Analysis
A. The FTCA and its Discretionary Function Exception Generally “Jurisdiction over any suit against the Government requires a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver.” United States v. White Mountain Apache Tribe, 537 U.S. 465, 472 (2003) (internal citations omitted). Through its enactment of the FTCA, Congress waived the United States’ immunity from suits: for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 18 U.S.C. § 1346(b)(1). The statute provides also that: The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages. 28 U.S.C. § 2674. Thus, the FTCA does not waive the Government’s sovereign immunity unless a private person under similar circumstances would be liable under Michigan law to Plaintiffs for the EPA’s alleged conduct.
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Even if this analogous private liability requirement is satisfied, Congress has delineated a number of additional exceptions to the FTCA’s waiver of sovereign immunity. See 28 U.S.C. § 2680. Relevant here is § 2680’s discretionary function exception, which excludes from FTCA’s waiver:
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). This exception applies only to “acts that are discretionary in nature, acts that ‘involve an element of judgment or choice[.]’” United States v. Gaubert, 499 U.S. 315, 322 (1991) (brackets omitted) (quoting Berkovitz v. United States, 486 U.S. 531, 536 (1988)). As such, the exception is inapplicable where “a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” Berkovitz, 486 U.S. at 536. In that instance, “the employee has no rightful option but to adhere to the directive.” Id. “‘[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a case.’” Id. (quoting United States v. Varig Airlines, 467 U.S. 797, 813 (1984)).
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Thus, a court’s first step in analyzing whether the discretionary function exception applies is deciding whether the government’s agent had discretion in exercising the challenged act or omission. But even if “the challenged conduct involves an element of judgment,” the Supreme Court has advised that the discretionary function exception applies only if “that judgment is the kind that the … exception was designed to shield.” Berkovitz, 486 U.S. at 536. As the Court has explained: “The basis for the discretionary function exception was Congress’ desire to ‘prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’” Id. at 536-37 (quoting Varig Airlines, 467 U.S. at 814). Accordingly, the second step in deciding whether the discretionary function exception applies is determining whether the government’s actions and decisions are “based on considerations of public policy.” Id. at 537; Gaubert, 499 U.S. at 323.
In Gaubert, the Supreme Court held that “choices made by regulatory agency actors are presumptively based on considerations of policy.” Myers v. United States, 17 F.3d 890, 896 (6th Cir. 1994) (citing Gaubert, 499 U.S. at 32425). As the Gaubert Court stated:
When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that discretion.
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499 U.S. at 324. While this presumption is “strong,” it may be rebutted. Myers, 17 F.3d at 896.
“In determining whether the conduct in a particular case sufficiently rebuts this presumption, the inquiry must focus on the objective evaluation of the discretion conferred rather than a review of the actor’s subjective method of choosing a course of action.” Myers, 17 F.3d at 896 (citing Gaubert, 499 U.S. at 325); Gaubert, 499 U.S. at 325 (“The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.”). Stated differently, “[t]he proper inquiry is whether the challenged actions are ‘susceptible to policy analysis,’ not whether they were the result of a policy analysis.” Rosebush v. United States, 119 F.3d 438, 444 (6th Cir. 1997) (quoting Gaubert, 499 U.S. at 324-25); see also Myslakowski v. United States, 806 F.2d 94, 97 (1986) (“even the negligent failure of a discretionary government policymaker to consider all relevant aspects of a subject matter under consideration does not vitiate the discretionary character of the decision that is made.”).
In Gaubert, the Supreme Court provided an example of a discretionary act not based on public policy, which is often repeated by courts attempting to apply this second-step of the discretionary function analysis:
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If one of the officials involved in this case drove an automobile on a mission connected with his official duties and negligently collided with another car, the exception would not apply. Although driving requires the constant exercise of discretion, the official’s decisions in exercising that discretion can hardly be said to be grounded in regulatory policy. 499 U.S. at 325 n.7. Although the Supreme Court was not applying the discretionary function exception when deciding Indian Towing Company v. United States, 350 U.S. 61 (1955), the Court has since used the Coast Guard’s conduct in that case—that being the failure to maintain a lighthouse by allowing the light to go out—as an example of an act “‘not involv[ing] any permissible exercise of policy judgment.’” Gaubert, 499 U.S. at 326 (quoting Berkovitz, 486 U.S. at 538 n.3); see also id. at 335-36 (Scalia, J., concurring). Circuit Courts have found government agents’ discretionary conduct not susceptible to policy determinations in a variety of circumstances. See, e.g., Anestis v. United States, 749 F.3d 520, 529 (6th Cir. 2014) (failing to provide emergency care for veteran at Veteran Affairs clinics); Whisnant v. United States, 400 F.3d 1177, 1183 (9th Cir. 2005) (failing to control the accumulation of toxic mold within naval commissary’s meat department); Gotha v. United States, 115 F.3d 176, 181-82 (3d Cir. 1997) (navy’s decision whether to provide safeguards such as handrails or sufficient lighting on a steep pathway); Myers, 17 F.3d at 896-97 (mining inspectors’ failure to find safety violations inside mine); Andrulonis v. United States, 952 F.2d 652, 655 (2d Cir.
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1991) (federal scientist’s failure to warn the plaintiff of the hazards associated with the use of a rabies vaccine).
In Myers, the Sixth Circuit distinguished the case before it from Gaubert based on the fact that the agency’s decisions in Gaubert followed a “balancing of interests[,]” leading the court to “believe that some authorization to conduct this type of balancing is a necessary prerequisite for finding that the actions complained of are protected by the discretionary function exception.” 17 F.3d at 898 (emphasis in original). As the Sixth Circuit explained: “[T]he decisions [of the federal agents in Gaubert] were authorized to be made, and were in fact made, based upon considerations of what was good for the public fisc and the industry as a whole, as well as what was good for the [thrift] industry as a whole, as well as what was good for the particular [savings and loan] institution.” Id. In comparison, the Myers court found that in the case before it, Congress and the Secretary of the Department of Labor in promulgating the various safety measures applicable to the nation’s mines balanced the relevant interests and did not authorize the federal inspectors whose conduct was at issue to reweigh those interests. Id. “Rather, they are to determine compliance and, in the event of noncompliance, issue the mandatory citations and orders.” Id. The inspectors’ decisions, the Sixth Circuit found, “are to be made … in light of their own observations, informed by professional judgment and knowledge of the industry.”
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Id. “Considerations of ‘political, social or economic policy’ are not authorized to play a part in these assessments.” Id.
Notably, in reaching its decision, the Myers court did not adopt the plaintiffs’ argument that the inspectors “should be guided by objective principles of safety, not concerns of public policy.” See id. at 897. The Sixth Circuit in fact has found federal agency decisions implicating safety susceptible to policy analysis. See, e.g., A.O. Smith Corp., 774 F.3d 359, 369-70 (6th Cir. 2014) (instructing that the government’s failure to warn property owners of flood water danger “is the type of decision that fits within the second prong of the discretionary function test”) (citation and quotation marks omitted); Sharp, 401 F.3d 440, 445 (6th Cir. 2005) (quoting Reetz v. United States, 224 F.3d 794, 797 (6th Cir. 2000)) (“‘Decisions protected from tort liability by the discretionary function exception to the FTCA include: 1) the proper response to hazards; 2) how to make federal lands safe for visitors; and 3) whether to warn of potential dangers.’”); Rosebush, 119 F.3d at 443-44 (indicating that “[d]ecisions concerning the proper response to hazards” and “whether to warn of potential danger” are “protected from tort liability by the discretionary function exception”). Thus, even where safety or public hazards are at issue, the Sixth Circuit has instructed that the government conduct at issue must be analyzed under the two-prong Berkovitz/Gaubert test. A.O. Smith Corp., 774 F.3d at 369.
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B. Whether the Discretionary Function Exception Applies Here 1. Identifying the Conduct Underlying Plaintiffs’ Claims
The Sixth Circuit has advised that the “crucial first step” in deciding whether the discretionary function exception applies is “determin[ing] exactly what conduct is at issue.” Rosebush, 119 F.3d at 441 (citation omitted). Here, in the complaints filed in both cases, Plaintiffs allege that the United States is liable because the EPA failed to more quickly intervene in response to the Flint Water Crisis pursuant to the authority granted it under Sections 1414 and 1432 of the SDWA. Specifically, Plaintiffs claim the EPA failed to timely investigate, provide technical assistance, obtain compliance or commence a civil action. Plaintiffs also claim that EPA was negligent in failing to warn them of the health risks posed by the Flint water. In response to Defendants’ motion, Plaintiffs further contend that EPA was negligent when responding to the complaints it received from Flint residents, misleading them regarding the safety of the water and the extent to which MDEQ and the City were handling the crisis to ensure the water met health standards.
2. Claims Based on the EPA’s Failure to Act Plaintiffs contend that Sections 1414 and 1431 of the SDWA mandated EPA action in response to Flint’s contaminated water system. Sixth Circuit precedent leads this Court to conclude instead that these statutory provisions grant the EPA discretion to act. For example, in Myers, the Sixth Circuit held that the conduct of
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mine inspectors involved discretion because their instructions followed an “ ‘if/then’ logical structure” that required the inspectors “to determine that some predicate condition exists” before acting. 17 F.3d at 895-96. In Anestis, although finding that the federal employees’ actions did not satisfy the second prong of the Berkovitz/Gaubert test, the court implicitly found the first prong satisfied when it recognized that “VA’s emergency policies did allow limited discretion in determining whether a patient was in an emergency state[.]” Id. at 529. Recently in Jude v. Commissioner of Social Security, 908 F.3d 152 (6th Cir. 2018), the court concluded that the Social Security Act granted some discretion to the Social Security Administration in handling suspicions of fraud where the statute provided instructions “if there is reason to believe that fraud or similar fault was involved in [an individual’s application for benefits].” Id. at 159-60.
Even assuming that there was a finding of noncompliance for Flint,5 the SDWA grants the EPA a significant “element of judgment or choice” in its response. Under Section 1414, the federal agency is granted discretion to decide what “advice and technical assistance … may be appropriate to bring the system into compliance” and what “the earliest feasible time[]” is to reach compliance. 6
5 The Government asserts that a finding was never made for Flint, an assertion Plaintiffs vigorously dispute. 6 Section 1414 of the SDWA requires the EPA to “notify the State and such public water system” of a finding of noncompliance, 42 U.S.C. § 300g-3(a); however, Cont’d…
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42 U.S.C. § 300g-3(a)(1)(A). Section 1414 also instructs the EPA to issue an order requiring the public water system to comply with the applicable requirement, but first the agency must decide whether “the State has [] commenced appropriate enforcement action[.]” Id. § 300g-3(B).
In addition to finding “information that a contaminant … is present in or is likely to enter a public water system[,] Section 1431 requires the EPA to also find “that appropriate State and local authorities have not acted to protect the health of such persons[]” before responding. 42 U.S.C. § 300i(a). Assessing what State and local authorities have done, whether those actions will protect public health, and whether those actions are sufficient certainly involve an element of choice and judgment. This provision grants the EPA further discretion by stating that, prior to issuing an order or commencing a civil action, it may determine whether it would “be practicable in light of such imminent endangerment[]” to “consult with State and local authorities “to confirm the correctness of the information on which action is proposed to be taken . . . is based and to ascertain the action which such authorities are or will be taking.” Id.
Plaintiffs contend that EPA’s 1991 memorandum, which it issued to provide final guidance regarding Section 1431, “elucidate[s] the mandatory nature of the
Plaintiffs do not allege that Region 5 failed to contact MDEQ and Flint when it began receiving complaints regarding the water.
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EPA’s responsibility. (Pls.’ Resp. Br. at 34, ECF No. 53 at Pg ID 1883-84.) To
the contrary, the Court finds that the memorandum emphasizes the discretionary
nature of the agency’s actions under this provision.7 The example Plaintiffs quote
from the manual reads:
If EPA has information that State/local agencies are going to act, EPA must decide whether the action is timely and protective of public health. If EPA determines that the action is insufficient and State and local agencies do not plan to take stronger or additional actions to ensure public health protection, in a timely way, EPA should proceed with an action under Section 1.431 [sic].
(Pls.’ Resp. Ex. 52 at 9, ECF No. 50-24, emphasis added.) This instruction
highlights the “ ‘if/then’ logical structure” at play in Section 1431.
Addressing specifically Plaintiffs’ assertion that the EPA was negligent in
failing to warn Flint residents of the health risks posed by the water, neither
Section 1414 nor Section 1431 set forth a mandatory obligation for the EPA to
issue warnings. Plaintiffs identify no other statute or regulation imposing this duty
on the EPA. The regulations in fact impose this requirement on public water
7 Moreover, “an agency manual, in contrast to a regulation, is not necessarily entitled to the force and effect of law.” Aragon v. United States, 146 F.3d 819, 824 (10th Cir. 1998) (citing Schweiker v. Hansen, 450 U.S. 785, 789 (1981)). “This is particularly true if the agency did not intend the manual to be mandatory, but rather intended it as a guidance or advisory document.” Id. (citing Hamlet v. United States, 63 F.3d 1097, 1103-05 (Fed. Cir. 1995)); see also Little Traverse Lake Property Owners Assoc. v. Nat’l Park Service, 883 F.3d 644, 657 (6th Cir. 2018) (quoting Reich v. Manganas, 70 F.3d 434, 437 (6th Cir. 1995) (“‘internal [agency] operating manuals do not carry the force of law, bind the agency, or confer rights upon the regulated entity.’”)
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systems. See 40 C.F.R. § 141.85. The Sixth Circuit addressed a similar claim in Lockett v. United States, 938 F.2d 630 (1991), where the plaintiffs sued under the FTCA based on the EPA’s negligent failure to warn them of the dangers posed by the contamination of land due to polychlorinated biphenyls (“PCBs”). Finding no statute or regulation mandating the EPA’s response when it learned of test results reflecting the presence of PCBs exceeding permissible levels, the Sixth Circuit concluded that the EPA was granted discretion to formulate a response. Id. at 637.
As Plaintiffs point out, the SDWA’s general purpose is “to assure that the water supply systems serving the public meet minimum national standards for protection of public health.” H.R. Rep. 93-1185 at 1, reprinted in 1974 U.S.C.C.A.N. 6454, 6454 (1974). Nevertheless, the Supreme Court and Sixth Circuit have advised that such broad general policy pronouncements do not remove the discretion invested in federal officials to exercise judgment when making decisions. See Varig Airlines, 467 U.S. at 816, 821 (concluding that the Federal Aviation Administration’s statutory duty to promote safety in air transportation does not remove discretion from inspectors); Sharp ex rel. Estate of Sharp v. United States, 401 F.3d 440, 444 (6th Cir. 2005); A.O. Smith Corp., 774 F.3d at 368 (using “aspirational, goal-oriented language in describing the Corps’ management” of water storage protocol did not leave it “with no choice but to adhere to the protocol”).
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For these reasons, the Court finds the first step of the discretionary function exception analysis satisfied with respect to Plaintiffs’ claims based on the EPA’s failure to act. Again, at the second step, this Court must determine whether the judgment exercised by the EPA in failing to act is of the kind the exception was designed to shield.
The Court begins its analysis with the presumption that the EPA’s lack of action was grounded in considerations of public policy. Gaubert, 499 U.S. at 324; A.O. Smith Corp., 774 F.3d at 365. Plaintiffs counter the presumption, arguing that the EPA’s decision whether to intervene in the face of the “blatant safety hazard[]” posed by the Flint Water Crisis was a matter of objective scientific and professional standards rather than public policy. Plaintiffs equate the present matter to Myers, where the Sixth Circuit determined that an MSHA safety inspector does not “permissibly exercise policy choice” when making a safety compliance determination. 17 F.3d at 898. Though the court determined that an inspection involves discretion, the court concluded that an inspector is not authorized to make these discretionary determinations based on anything other than objective safety criteria, reasoning:
[T]he balancing of the interests of the miner and the mine owners, and the consideration of the most effective use of MSHA resources has been done, first by Congress and then, to a greater degree, by the Secretary of Labor in promulgating the various safety regulations. The MSHA inspectors whose conduct is at issue ... are not authorized to reweigh these interests on a case-by-case basis. Rather, they are to
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determine compliance and, in the event of non-compliance, issue the mandatory citations and orders. Id., emphasis in original. Courts similarly found no competing policies to safety in the following cases cited by Plaintiffs: Whisnant, 400 F.3d at 1183-84 (“Cleaning up [toxic] mold involves professional and scientific judgment, not decisions of social, economic, or political policy”); Andrulonis, 952 F.2d at 655 (federal scientist’s failure to warn bacteriologist of the hazards associated with rabies vaccine being used in laboratory experiments did not implicate any policy of the federal agency); In re FEMA Trailer Formaldehyde Prod. Liab. Litig., 583 F. Supp. 2d 758, 782-84 (E.D. La. 2008) (concluding that FEMA’s response (or lack thereof) after learning of unsafe levels of formaldehyde in temporary housing provided to victims of Hurricanes Katrina and Rita was guided by fear of litigation, which was not a permissible exercise of policy judgment);8 In re Yosemite Nat’l Park Hantavirus Litig., No. 14-2532, 2016 WL 758671, at *22 (N.D. Cal. Feb. 26, 2016) (unpublished) (finding that the United States failed to explain how considerations of access, conservation, and resources played into National Park
8 As the Government correctly points out, the district court in In re FEMA Trailer Formaldehyde Products Liability Litigation subsequently dismissed the plaintiffs’ claims based on the lack of analogous private liability under applicable state law. See In re FEMA Trailer Formaldehyde Prod. Liab. Litig., MDL No. 07-1873, 2010 WL 2010487 (E.D. La. May 18, 2010) (unpublished). This subsequent decision does not undermine the court’s earlier reasoning on the discretionary function exception, however.
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Services’ decision to delay notification to visitors of park of possible risk of exposure to a disease during their visit). The present matter is analogous to these cases.
In passing the SDWA, Congress intended to leave the primary responsibility for overseeing public water systems with the States. See H.R. 93-1185, 1974 U.S.C.C.A.N. 6454, 6461. However, Congress sought to set national standards for compliance “to assure that water supply systems serving the public meet minimum national standards for protection of public health” and to empower the federal government to intervene if States fail in their primary responsibilities. Id. at 645456. Federalism and the efficient use of federal and state resources were policy considerations that factored into devising the regulatory scheme and establishing conditions for the federal government’s intervention. Nevertheless, Congress expressly directed the EPA to intervene under specified conditions. In other words, having weighed varying policy interests, Congress decided when federal intervention is necessary. Unlike Lockett, the statutory scheme here mandates a specific EPA response when certain conditions exist. The assessment of whether those conditions have been satisfied are informed by objective scientific standards, scientific knowledge, and the professional judgment of experts in the field. For example, determining whether Flint’s water system complied with EPA regulations and, when it did not, whether the State’s response was sufficient to rectify the
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violations involved only the performance of professional and scientific analysis and reasoning.
Moreover, the EPA’s failure to warn Flint residents of the severe health risks the City’s water supply posed to them cannot be justified by any permissible exercise of policy judgment. Within weeks of the switch to the Flint River, the people of Flint suffered rashes and hair loss. The EPA was well aware that the Flint River was highly corrosive and posed a significant danger of lead leaching out of the City’s lead-based service lines at alarming rates into residents’ homes. The EPA was well aware of the health risks posed by lead exposure, particularly to children and pregnant women. Mr. Del Toral certainly made the risks clear to his Region 5 colleagues within the first half of 2015.
Further, the EPA knew that MDEQ and Flint officials were not warning Flint’s residents that they were being supplied lead-laced water. Quite to the contrary, the EPA learned that State and local officials were misleading residents to believe that there was nothing wrong with the water supply and that the lead levels in some homes resulted from the interior plumbing (as MDEQ tried to do with the EPA when alerted to the high lead levels in the Walters’ home—a myth the EPA quickly debunked). These lies went on for months while the people of Flint continued to be poisoned.
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As the Third Circuit noted in Abunabba, federal officials “could be aware of a safety hazard so blatant that its failure to warn the public could not reasonably be said to involve policy considerations.” 676 F.3d at 340 n.6. In that case, the court was speaking about safety hazards posed to the visitors of a remote national park. At issue here is an obvious danger imperiling a city’s nearly 100,000 residents. (See Pls.’ Resp. Ex. 11 at 1, ECF No. 53-8 at Pg ID 1946.) This fact very clearly distinguishes the present matter from every case the parties have cited and which this Court has reviewed concerning the applicability of the discretionary function exception.
This fact further suggests that this is an instance where decisions by government actors, even if discretionary, “may pass a threshold of objective unreasonableness such that no reasonable observer would see them as susceptible to policy analysis.” Hajdusek v. United States, 895 F.3d 146, 152 (1st Cir. 2018). As the Sixth Circuit recently indicated in Guertin v. Michigan, 912 F.3d 907 (2019)—the civil rights action brought by Flint residents against the State of Michigan, the City of Flint, and related government officials with respect to their conduct in connection with the Flint Water Crisis—there may be instances in which no legitimate government purpose could “justify the yearlong contamination of an entire community.” Id. at 926. The Guertin court could “‘conceive of no legitimate governmental objective for this violation of [the] plaintiffs’ bodily
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integrity.’” Id. (quoting Mays v. Snyder, 916 N.W.2d 227, 262 (Mich. Ct. App. 2018)). This Court similarly cannot conceive of a public policy consideration that could be legitimately balanced against the need to warn and protect an entire community from involuntary and continued poisoning. See Guertin, 912 F.3d at 925.
For these reasons, the Court concludes that the discretionary function exception does not bar Plaintiffs’ claims that the EPA was negligent in failing to timely act in response to the Flint Water Crisis.
3. Claims Based on the EPA’s Actions Plaintiffs claim that the EPA acted negligently when responding to citizen complaints about Flint’s water. Specifically, Plaintiffs assert that agency officials acted negligently by assuring residents that the EPA was providing the required oversight and that Flint and MDEQ were supplying safe drinking water. For the reasons discussed in the previous section, the agency’s decision whether and how to respond to citizen complaints was discretionary. However, once the Government decided to act, it was required to do so without negligence. See Wysinger v. United States, 784 F.2d 1252, 1253 (5th Cir. 1986) (citing Indian Towing Co., 350 U.S. 61; Rayonier, Inc. v. United States, 352 U.S. 315 (1957)); see also Whisnant, 400 F.3d at 1182-83 (quoting Bear Medicine v. United States, 241 F.3d 1208, 1216-17 (9th Cir. 2001) (“‘The decision to adopt safety precautions
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may be based in policy considerations, but the implementation of those precautions is not.’”); Callas’ Estate v. United States, 682 F.2d 613, 624 (7th Cir. 1982) (explaining that “the government has no discretion to carry out its policies negligently”).
The Court therefore concludes that Plaintiffs’ claim arising from the EPA’s response to citizen complaints is not barred by the discretionary function exception. The Government nevertheless contends that the claim is barred by the FTCA’s misrepresentation exception. (Def.’s Reply Br. at 19 n.15, ECF No. 56 at Pg ID 2285.)
The misrepresentation exception to the FTCA precludes any claim against the government “arising out of …misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h). This exception encompasses “claims arising out of negligent, as well as willful, misrepresentation.” United States v. Neustadt, 366 U.S. 696, 702 (1961). In enacting § 2680(h), Congress intended to adopt “the traditional and commonly understood legal definition of the tort of ‘negligent misrepresentation.’” Id. at 706. As the Supreme Court has explained, that cause of action arises from a failure “to use due care in obtaining and communicating information upon which that party may reasonably be expected to rely in the conduct of his economic affairs[.]” Id. (emphasis added). It “has been confined ‘very largely to the invasion of interests of a financial or commercial
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character, in the course of business dealings.’” Block v. Neal, 460 U.S. 289, 296 n.5 (1983) (emphasis added) (quoting W. Prosser, Torts, § 85, at 702-03 (1941 ed.)).
The misrepresentations alleged in the present matter were not of a financial or commercial character. Moreover, the gravamen of Plaintiffs’ complaint is that the EPA was negligent in its performance of operational tasks, that being to respond to residents’ complaints and provide them with guidance. As such, this Court finds the FTCA’s misrepresentation exception inapplicable. See Block v. Neal, 460 U.S. 289, 297-98 (1983); Kohn v. United States, 680 F.2d 922, 926 (2d Cir. 1982); Vogelaar v. United States, 665 F. Supp. 1295, 1304-05 (E.D. Mich. 1987); Phillips v. United States, 508 F. Supp. 544 (D.S.C. 1981) (citing cases).
C. Whether Plaintiffs State a Cause of Action Under Michigan Law As stated earlier, the FTCA waives the Government’s immunity but only “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Stated differently, “the FTCA does not create liability, it merely waives sovereign immunity to the extent that state-law would impose liability on a ‘private individual in similar circumstances.’” Myers, 17 F.3d at 899 (emphasis in original) (quoting 28 U.S.C. § 2674). Michigan law is applicable here.
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In their pleadings, Plaintiffs invoke the Good Samaritan doctrine as the
source of state law imposing liability upon the Government in this case. (See, e.g.,
Am. Compl. ¶¶ 101-02, ECF No. 75 at Pg ID 2591-92.) The Michigan Supreme
Court has adopted the doctrine as expressed in Section 324A of the Restatement of
Torts, 2d. Fultz v. Union-Commerce Assoc., 683 N.W.2d 587, 598 (Mich. 2004);
Smith v. Allendale Mut. Ins. Co., 303 N.W.2d 702, 711-12 (Mich. 1981). Section
324A, titled “Liability to Third Person for Negligent Performance of Undertaking”
reads:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965). The Sixth Circuit has explained
that “[i]t is a fundamental rule of American tort law that the fact that an actor
realizes or should realize that action on his part is necessary for another’s aid or
protection does not of itself impose upon him a duty to take such action.” Myers,
17 F.3d at 901 (quotation marks, brackets, and citation omitted). The Myers court 42

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went on to explain, however, that “[t]he common law recognizes … that an actor, by his affirmative acts, can create or assume a duty where none otherwise would have existed.” Id.
Like the mine inspectors in Myers, the EPA undertook to render services to Plaintiffs by engaging in oversight, including monitoring, of the State’s and local water systems’ compliance with the SDWA and by responding directly to citizen complaints. See Myers, 17 F.3d at 902 (citing Raymer v. United States, 660 F.2d 1136, 1144 (6th Cir. 1981)) (“[T]his circuit has held that MSHA inspections are sufficient undertakings to justify application of the [G]ood Samaritan doctrine’s other elements.”). The EPA must also have been negligent in its oversight and interactions with Flint residents. Id. “Negligence alone, however, is not sufficient under Section 324A because a plaintiff must also demonstrate that one of the three alternative bases for the imposition of a duty also existed.” Id.
An alternative basis for imposing liability exists with respect to the EPA’s communications with Flint residents in response to their complaints about the water. The EPA conveyed that the water was safe for consumption and that State officials were working with Flint to “provide[] drinking water that meets health standards.” Unlike the plaintiffs in Myers, Plaintiffs here allege justifiable detrimental reliance on the EPA’s representations. As a result of the EPA’s assurances, Plaintiffs were induced “‘to forgo other remedies or precautions
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against the risk [e.g., use bottled water].’” Myers, 17 F.3d at 903 (quoting Restatement § 324A cmt. e (1965)).
Further, with respect to the EPA’s oversight and monitoring of Flint’s water system, the public relied on EPA’s expertise to assess whether harmful contaminants were present in their water supply and to provide technical advice to correct any failings by State and local officials. It was foreseeable that the EPA’s negligence in performing these operational tasks would create a severe and likely risk of harm to Flint’s residents. The EPA’s alleged negligent performance of these tasks states a claim under the Good Samaritan doctrine. See Neal v. Bergland, 646 F.2d 1178, 1184 (6th Cir. 1981), aff’d sub nom. Block v. Neal, 460 U.S. 289.
The Court therefore concludes that Plaintiffs plead state-law liability to proceed under the FTCA. V. Conclusion
In summary, the Court concludes that Plaintiffs plead facts sufficient to hold the Government liable under the FTCA for its response to the Flint Water Crisis. The discretionary function exception is not applicable under the circumstances of this case and Plaintiffs plead facts sufficient to justify liability under applicable state law.
Accordingly,
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IT IS ORDERED, that the Government’s motions to dismiss are DENIED. s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE
Dated: April 18, 2019 I hereby certify that a copy of the foregoing document was mailed to counsel of record and/or pro se parties on this date, April 18, 2019, by electronic and/or U.S. First Class mail.
s/ R. Loury Case Manager
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 Case 4:17-cv-11218-LVP-RSW ECF No. 87 filed 09/27/19 PageID.2783 Page 1 of 4

UNITED STATE DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAN BURGESS, and all 2,959 individuals identified in the Burgess FTCA administrative Complaint,

Plaintiffs, v.

Civil Case No. 17-11218 Honorable Linda V. Parker

UNITED STATES OF AMERICA,

Defendant. __________________________________/

WILLIAM THOMAS, and all 1,923 individuals identified in the Thomas FTCA administrative Complaint,

Plaintiffs, v.

Civil Case No. 18-10243 Honorable Linda V. Parker

UNITED STATES OF AMERICA,

Defendant. __________________________________/

OPINION AND ORDER DENYING DEFENDANT’S MOTION FOR CERTIFICATION OF INTERLOCUTORY
APPEAL UNDER 28 U.S.C. § 1292(b)

On April 18, 2019, this Court decided that the discretionary function

exception found in 28 U.S.C. § 2680(a) does not shield Defendant, the United

States of America, from immunity under the Federal Tort Claims Act (“FTCA”).

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(ECF No. 38.) The Court also decided that Plaintiffs plead state-law liability to proceed under the FTCA. The United States seeks to immediately appeal that decision to the Sixth Circuit Court of Appeals and, therefore, has filed a Motion for Certification of Interlocutory Appeal under 28 U.S.C. § 1292(b). The motion has been fully briefed. For the reasons set forth below, the Court is denying the motion.
Under § 1292(b), a district court may certify an order for immediate appeal upon finding that it “involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal … may materially advance the ultimate termination of the litigation[.]” 28 U.S.C. § 1929. The Sixth Circuit has warned that “[r]eview under § 1292(b) should be sparingly granted and then only in exceptional cases.” Vitols v. Citizens Banking Co., 984 F.2d 168, 170 (6th Cir. 1993) (citation omitted).
“A legal issue is controlling if it could materially affect the outcome of the case.” In re City of Memphis, 293 F.3d 345, 351 (6th Cir. 2002) (citing In re Baker & Getty Fin. Servs., Inc., 954 F.2d 1169, 1172 n.8 (6th Cir. 1992)). Interpreting the meaning of this requirement, the Seventh Circuit Court of Appeals has explained:
We think [the framers of § 1292] used “question of law” in much the same way a lay person might, as referring to a “pure” question of law rather than merely to an issue that might be free from a factual contest. The idea was that if a case turned on a pure question of law,
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something the court of appeals could decide quickly and cleanly without having to study the record, the court should be enabled to do so without having to wait until the end of the case. Ahrenholz v. Bd. of Trustees. of the Univ. of Illinois, 219 F.3d 674, 676-77 (7th Cir. 2000). “ ‘[Q]uestion of law’ as used in § 1292(b) has reference to a question of the meaning of a statutory or constitutional provision, regulation, or common law doctrine ….” Id. at 676. “The term . . . does not mean the application of settled law to fact.” McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1258 (11th Cir. 2004) (citing Ahrenholz, 219 F.3d at 676). The Court’s holdings with respect to the government’s motion to dismiss was too fact-intensive an inquiry for interlocutory review. It required the Court to dig deeply into a substantial factual record. Moreover, at this stage of the proceedings, the facts remain to be developed and future discovery may impact the Court’s analysis. Additionally, the Court does not believe that an immediate appeal will expedite the resolution of this case. Litigation of this matter already has been substantially delayed to address the issues raised in the United States’ motion to dismiss. Allowing an interlocutory appeal would only further delay its progression. As well, there is an ongoing mediation concerning the Flint Water Crisis involving the parties to this case, as well as officials from the State of Michigan and the City of Flint. The United States has been unwilling to fully
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engage in those discussion while its motion to dismiss was pending. Denying the government’s request for interlocutory appeal may advance those discussions and an ultimate resolution of, not only this case, but the numerous additional lawsuits arising from this tragic crisis.
Accordingly, the Court is DENYING the United States’ Motion for Certification of Interlocutory Appeal under 28 U.S.C. § 1292(b) in the abovecaptioned cases. The Court also is DENYING WITHOUT PREJUDICE the Motion to Strike, which is pending in Thomas.1 (ECF No. 8.)
IT IS SO ORDERED. s/ Linda V. Parker LINDA V. PARKER U.S. DISTRICT JUDGE
Dated: September 27, 2019
1 The Court intends to schedule a conference with counsel in the related FTCA cases to discuss how these matters should proceed. The Court will likely consolidate the cases. In that instance, it seems that the question of which lawsuit should include certain plaintiffs will no longer be relevant.
4