Anderson et al v. Snyder et al

BRIEF in support of CORRECTED MOTION to dismiss Plaintiffs' Complaint

W.D. Mich.September 15, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN EDWIN ANDERSON, et al., Plaintiffs, v. GOVERNOR RICK SNYDER, et al., Defendants. Case No.: 1:16-cv-00874-GFQ-PJG Hon. GORDON J. QUIST Magistrate Judge: Phillip J. Green MDEQ EMPLOYEE DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS’ COMPLAINT ORAL ARGUMENT REQUESTED Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1002 Page 1 of 65 i TABLE OF CONTENTS INDEX OF AUTHORITIES .................................................................................... iv STATEMENT OF ISSUES PRESENTED ................................................................ x CONTROLLING AND MOST APPROPRIATE AUTHORITIES ....................... xii STATEMENT OF FACTS ........................................................................................ 1 City of Flint’s Water System ........................................................................... 1 The MDEQ Current and Former Employee Defendants (hereafter “MDEQ Employee Defendants”) .......................................................... 3 The Plaintiffs’ Collective Allegations Against the MDEQ Employee Defendants. ............................................................................................ 9 STANDARD OF REVIEW ..................................................................................... 11 ARGUMENTS ......................................................................................................... 13 I. PLAINTIFFS’ COMPLAINT FAILS TO STATE HOW EACH OF THE MDEQ EMPLOYEE DEFENDANTS, THROUGH THEIR INDIVIDUAL ACTS, COMMITTED THE TORTS WHICH ARE THE SUBJECT OF THE PLAINTIFFS’ COMPLAINT. ..................................................................................... 13 II. THE MDEQ EMPLOYEE DEFENDANTS ARE ABSOLUTELY IMMUNE FROM THE PLAINTIFFS’ STATE LAW CLAIMS. ................................................................................... 16 A. The Absolute Immunity Afforded Federal Actors Precludes Plaintiffs’ State Law Claims Against All MDEQ Employee Defendants. .............................................................. 16 B. Defendant Shekter Smith is Entitled to Absolute Immunity from All of Plaintiffs’ Claims. .................................................. 21 III. THE PLAINTIFF HAS FAILED TO STATE A CLAIM FOR NEGLIGENCE AGAINST THE MDEQ EMPLOYEE DEFENDANTS UPON WHICH RELIEF CAN BE GRANTED (COUNT I) .......................................................................................... 23 Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1003 Page 2 of 65 ii A. The MDEQ Employee Defendants are Immune from the Plaintiffs’ Negligence Claims. .................................................. 23 B. The ”Public Building” Exception to Governmental Immunity, MCL 691.1406, is inapplicable to the MDEQ Employee Defendants (Compl., Count I-Negligence, ¶¶197 and 198, Pg. ID 78) ........................................................ 24 C. The Plaintiffs Have Failed to State a Negligence Claim Based Upon the MDEQ Employee Defendants Alleged Violation of the City of Flint’s Ordinance 46-16 Upon Which Relief Can Be Granted (Compl. Count I- Negligence, ¶¶199 and 200, Pg. ID 78) .................................... 26 IV. THE PLAINTIFFS HAVE FAILED TO STATE A CLAIM OF GROSS NEGLIGENCE UPON WHICH RELIEF CAN BE GRANTED (COUNT II). .................................................................... 29 A. The MDEQ Employee Defendants Did Not Owe Any Duties to the Plaintiffs. ............................................................. 31 B. The Plaintiffs’ Complaint Fails to Allege that the MDEQ Employee Defendants Acted in Ways Which Comprise ”Gross Negligence” as Defined in Michigan’s Governmental Immunity Act. ................................................... 35 C. The Plaintiffs Have Failed to Allege that The MDEQ Employees Alleged Gross Negligence Was the Proximate Cause of the Plaintiffs’ Injuries and Damages. ........................ 38 V. THE PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR CONCERT OF ACTION/CONSPIRACY TO COMMIT TORTIOUS INTERFERENCE OF CONTRACT UPON WHICH RELIEF CAN BE GRANTED (COUNT V). ....................... 40 A. Plaintiffs Cannot Maintain a Conspiracy Claim Because the Underlying Tortious Interference Claim Was Not Alleged Against MDEQ Employee Defendants. ...................... 40 B. Plaintiffs Have Otherwise Failed to State a Claim for Conspiracy. ............................................................................... 41 Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1004 Page 3 of 65 iii VI. MICHIGAN’S SAFE DRINKING WATER ACT PREEMPTS THE PLAINTIFFS’ STATE LAW CLAIMS ..................................... 44 A. Michigan Statutes Can Preclude Common Law Claims........... 44 B. The Michigan SDWA is a Comprehensive Statute Which Expressly Provides that Only the Michigan Attorney General May Bring a Civil Action. ........................................... 46 C. Plaintiffs’ Negligence and Gross Negligence Claims Are Based on Alleged Duties Within the Scope of Michigan’s SDWA. ...................................................................................... 49 RELIEF REQUESTED ............................................................................................ 50 Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1005 Page 4 of 65 iv INDEX OF AUTHORITIES Cases Ali v. Detroit, 218 Mich. 581; 554 N.W.2d 384 (1996) .......................................... 26 American Transmissions, Inc. v. Attorney Gen, 454 Mich. 135; 560 N.W.2d 50 (1997) ............................................................................................................... 21 Anzaldua v. Neogen Corp., 292 Mich. App. 626; 808 N.W.2d 804 (2011) ............ 45 Appalachian Railcar Servs. v. Boatright Enters., 602 F. Supp. 2d 829 (W.D. Mich 2008) ........................................................................................................... 40 Ashcroft v. Iqbal, 556 U.S. 662; 129 S.Ct. 1937; 173 L.Ed.2d 868 (2009) 13, 14, 15 Bahr v Miller Bros Creamery, 365 Mich 415; 112 NW2d 463 (1961) ................... 42 Beals v. Michigan, 497 Mich. 363; 871 N.W.2d 5 (2015) ...................................... 39 Beaudrie v. Henderson, 465 Mich. 124; 631 N.W.2d 308 (2001) .......................... 31 Bell Atlantic Corp. v. Twombly, 550 U.S. 544; 127 S. Ct. 1955; 167 L.Ed.2d 929 (2007) .......................................................................................... 11, 12, 13, 15 Bishop v. Lucent Technologies, Inc., 520 F.3d 516 (6th Cir., 2008) ....................... 12 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388; 91 S.Ct. 1999; 29 L.Ed.2d 619 (1971) ................................................................................... 14, 15 Bondex Int’l, Inc. v. Hartford Accident and Indemnity Company, 667 F.3d 669 (6th Cir., 2011) ..................................................................................................... 15 Bradley v. Saranac Bd. of Educ., 455 Mich. 285; 565 N.W.2d 650 (1997) ........... 46 Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ......................................................... 16 Butz v. Economou, 438 U.S. 478; 98 S.Ct. 2894; 57 L.Ed.2d 895 (1978) .............. 16 Chivas v. Koehler, 182 Mich. App. 467; 453 N.W.2d 264 (1990) ................... 22, 23 Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich. App. 485; 686 N.W.2d 770 (2004) ............................................................................................... 40 Conley v. Gibson, 355 U.S. 41; 78 S. Ct. 99; 2 L.Ed.2d 80 (1957) ......................... 11 Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1006 Page 5 of 65 v Cooper v. Guiterrez, 2014 WL 465713 (Mich. App., unpublished, 2014) ............. 27 Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365 (6th Cir., 2011) .............................................................................................................................. 13 Cummins v. Robinson Township, 283 Mich. App. 677; 770 N.W.2d 521 (2009) ....................................................................................................... 31, 33, 35 Dawe v. Dr. Reuven Bar-Levav. & Assoc., P.C., 485 Mich. 20; 780 N.W.2d 272 (2010) ............................................................................................................. 45 Dep’t of Agriculture v. Appletree Mktg., LLC, 485 Mich. 1; 779 N.W.2d 237 (2010) .................................................................................................................... 45 Dudewicz v. Norris-Schmid, Inc., 443 Mich. 68; 503 N.W.2d 645 (1993) ............. 45 EBI-Detroit, Inc v. City of Detroit, 279 Fed. Appx. 340 (6th Cir., 2008) ......... 21, 22 Fenestra Inc. v Gulf American Land Corp, 377 Mich. 565; 141 N.W.2d 36 (1966) .................................................................................................................... 41 Goldstone v. Bloomfield Township Public Library, 479 Mich. 554, 568 n. 15; 737 N.W.2d 476 (2007) ........................................................................................ 26 Harrison v. Director of Dep’t of Corrections, 194 Mich. App. 446; 487 N.W.2d 799 (1992) ............................................................................................... 22 Hensley Mfg. v. ProPride, Inc., 579 F.3d 603 (6th Cir., 2009) ............................... 12 Hoerstman Gen. Contr., Inc. v. Hahn, 474 Mich. 66; 711 N.W.2d 340 (2006) ....................................................................................................................... 45, 46 In re Receivership of 11910 South Francis Road, 492 Mich. 208; 821 N.W.2d 503 (2012) ...................................................................................................... 25, 27 Jackson v. City of Columbus, 194 F.3d 737 (6th Cir., 1999) .................................. 12 Kraft v. Detroit Entm’t, LLC, 261 Mich. App. 534; 683 N.W.2d 200 (2004) .. 45, 46 Lanman v. Hinson, 529 F.3d 673 (6 Cir., 2008) ...................................................... 14 League of United Latin American Citizens v. Bredesen, 500 F.3d 523 (6th Cir., 2007) ..................................................................................................................... 12 Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1007 Page 6 of 65 vi Magid v Oak Park Racquet Club Assocs, 84 Mich. App. 522; 269 N.W.2d 661 (1978) .................................................................................................................... 40 Maiden v. Rozwood, 461 Mich. 109; 597 N.W.2d 817 (1999) ................... 31, 34, 35 Marcilis v. Township of Redford, 693 F.3d 589 (6 Cir., 2012) ............................... 14 Mays v Three Rivers Rubber Corp, 135 Mich. App. 42; 352 N.W.2d 339 (1984) .................................................................................................................... 42 Michigan Education Association v. Secretary of State (On Reh) for 89 Mich. 194; 801 N.W.2d 35 (2011) .................................................................................. 24 Millross v. Plum Hollow Golf Club, 429 Mich. 178; 413 N.W.2d 17 (1987) . 45, 47 Musser v. Loon Lake Shores Association, Inc., 384 Mich. 616; 186 N.W.2d 563 (1971) ............................................................................................................. 30 New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046 (6th Cir., 2011) ..................................................................................................................... 12 Rakowski v. Sarb, 269 Mich. App. 619; 713 N.W.2d 787 (2006) ........ 31, 32, 33, 35 Renny v. Department of Transportation, 478 Mich. 490; 734 N.W.2d 490 (2007) .................................................................................................................... 26 Rhodes v. R&L Carriers, Inc., 491 F. App’x 579 (6th Cir., 2012) .......................... 12 Robinson v. Detroit, 462 Mich. 439; 613 N.W.2d 307 (2000) ................................ 38 Salmon v. Wilkerson, 2002 WL 1603180 (July 19, 2002) (unpublished) ............... 22 Samson v. Saginaw Professional Building, Inc., 393 Mich. 393; 224 N.W.2d 843 (1975) ............................................................................................................. 33 Sholberg v. Truman, 496 Mich. 1; 852 N.W.2d 89 (2014) ...................................... 30 Sutton v. Metro. Gov’t of Nashville and Davidson Cnty., 700 F.3d 865 (6th Cir., 2012) ............................................................................................................. 13 Tarleda v. Crabtree, 263 Mich. App. 80; 687 N.W.2d 333 (2004) ......................... 36 Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1008 Page 7 of 65 vii United States Fidelity Insurance & Guaranty Company v. Michigan Catastrophic Claims Association (On Reh) 484 Mich 1; 795 N.W.2d 101 (2009) ............................................................................................................. 24, 26 Statutes 42 U.S.C. § 300i ....................................................................................................... 47 42 U.S.C. §300(f) ..................................................................................................... 17 42 U.S.C. §300g-2 .................................................................................................... 18 42 U.S.C. §300g-3 .................................................................................................... 19 42 U.S.C. §300j-8(e) ................................................................................................ 48 42 U.S.C. 1413(a)(1) ................................................................................................ 44 MCL 324.1701 ......................................................................................................... 48 MCL 325.1001 .................................................................................................. 34, 47 MCL 325.1002(t) ..................................................................................................... 33 MCL 325.1003 .................................................................................................. 29, 34 MCL 325.1003(b)(1)(b) ........................................................................................... 34 MCL 325.1004(1)-(4) .............................................................................................. 34 MCL 325.1005 ............................................................................................ 22, 29, 34 MCL 325.1015(2) .................................................................................................... 34 MCL 325.1015(4) .................................................................................................... 35 MCL 325.1019(1) .................................................................................................... 35 MCL 325.1022 ............................................................................................ 47, 48, 49 MCL 325.1101 ......................................................................................................... 47 MCL 691.1401 ......................................................................................................... 26 MCL 691.1401(a) ..................................................................................................... 25 Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1009 Page 8 of 65 viii MCL 691.1401(d) .................................................................................................... 25 MCL 691.1401(e) ..................................................................................................... 25 MCL 691.1405(5) .................................................................................................... 21 MCL 691.1406 ............................................................................................ 24, 25, 32 MCL 691.1407(2) .................................................................................................... 23 MCL 691.1407(2)(a) ................................................................................................ 29 MCL 691.1407(2)(b) ................................................................................................ 29 MCL 691.1407(2)(c) ............................................................................. 29, 38, 39, 40 MCL 691.1407(5) ....................................................................................... 21, 22, 23 MCL 691.1407(8)(a) ......................................................................................... 35, 36 Other Authorities 1976 P.A. 399 ........................................................................................................... 47 2A Sands, Sutherland Statutory Construction (4th ed.), §50.05 .............................. 45 Michigan Administrative Code R325.10101 et seq. ................................................ 34 Michigan Administrative Code R325.12801 et seq. ................................................ 34 Rules 40 C.F.R. §141(I) ..................................................................................................... 17 40 C.F.R. §141.80 .................................................................................................... 18 40 C.F.R. §141.80 (b)-(h) ........................................................................................ 18 40 C.F.R. §141.80(a) ................................................................................................ 18 40 C.F.R. §141.82(i) ................................................................................................ 19 40 C.F.R. §141.83(b)(7) ........................................................................................... 19 40 C.F.R. §142.10 .................................................................................................... 18 Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1010 Page 9 of 65 ix 40 C.F.R. §142.11 .................................................................................................... 18 40 C.F.R. §142.12(a)(1) ........................................................................................... 19 40 C.F.R. §142.15 .................................................................................................... 19 40 C.F.R. §142.16(d) ............................................................................................... 19 40 C.F.R. §142.17(a)(1) ........................................................................................... 19 40 C.F.R. §142.17(a)(2) ........................................................................................... 19 40 C.F.R. §142.19 .................................................................................................... 19 40 C.F.R. §142.19(a) ................................................................................................ 19 40 C.F.R. §142.30 ............................................................................................. 19, 20 40 C.F.R. §142.34 .................................................................................................... 19 56 Fed. Reg. 26460 (June 7, 1991) .......................................................................... 18 72 Fed. Reg. 57782 (October 10, 2007) .................................................................. 20 72 Fed. Reg. 57789 (October 10, 2007) .................................................................. 20 Fed. R. Civ. P. 12(b)(6) ............................................................................... 11, 12, 31 MCR 2.116(C)(8) ..................................................................................................... 31 Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1011 Page 10 of 65 x STATEMENT OF ISSUES PRESENTED I. WHETHER PLAINTIFFS’ COMPLAINT FAILS TO STATE HOW EACH OF THE MDEQ EMPLOYEE DEFENDANTS, THROUGH HER AND HIS OWN INDIVIDUAL ACTS, COMMITTED THE TORTS WHICH ARE THE SUBJECT OF THE PLAINTIFFS’ COMPLAINT? MDEQ Employee Defendants answer: “Yes.” Plaintiffs will answer “No.” II. WHETHER THE MDEQ EMPLOYEE DEFENDANTS ARE ABSOLUTELY IMMUNE FROM THE PLAINTIFFS’ STATE LAW CLAIMS? MDEQ Employee Defendants answer: “Yes.” Plaintiffs will answer “No.” III. WHETHER THE PLAINTIFF HAS FAILED TO STATE A CLAIM FOR NEGLIGENCE AGAINST THE MDEQ EMPLOYEE DEFENDANTS UPON WHICH RELIEF CAN BE GRANTED (COUNT I)? MDEQ Employee Defendants answer: “Yes.” Plaintiffs will answer “No.” IV. WHETHER THE PLAINTIFFS HAVE FAILED TO STATE A CLAIM OF GROSS NEGLIGENCE UPON WHICH RELIEF CAN BE GRANTED (COUNT II)? MDEQ Employee Defendants answer: “Yes.” Plaintiffs will answer “No.” V. WHETHER THE PLAINTIFFS HAVE FAILED TO STATE A CONCERT OF ACTION/CONSPIRACY TO COMMIT TORTIOUS INTERFERENCE OF CONTRACT UPON WHICH RELIEF CAN BE GRANTED (COUNT V)? MDEQ Employee Defendants answer: “Yes.” Plaintiffs will answer “No.” Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1012 Page 11 of 65 xi VI. WHETHER MICHIGAN SAFE DRINKING WATER ACT PREEMPTS THE PLAINTIFFS’ STATE LAW CLAIMS? MDEQ Employee Defendants answer: “Yes.” Plaintiffs will answer “No.” Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1013 Page 12 of 65 xii CONTROLLING AND MOST APPROPRIATE AUTHORITIES American Transmissions, Inc. v. Attorney Gen, 454 Mich. 135; 560 N.W.2d 50, 52 (1997) Ashcroft v. Iqbal, 556 U.S. 662, 678; 129 S.Ct. 1937, 1948; 173 L.Ed.2d 868 (2009) Bell Atlantic Corp. v. Twombly, 550 U.S. 544; 127 S. Ct. 1955; 167 L.Ed.2d 929 (2007) Bondex Int’l, Inc. v. Hartford Accident and Indemnity Company, 667F.3d 669 (6th Cir., 2011) Butz v. Economou, 438 U.S. 478, 490; 98 S.Ct. 2894; 57 L.Ed.2d 895 (1978) Chivas v. Koehler, 182 Mich. App. 467; 453 N.W.2d 264 (1990) Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich. App. 485; 686 N.W.2d 770 (2004) Cummins v. Robinson Township, 283 Mich. App. 677, 692; 770 N.W.2d 521 (2009) Harrison v. Director of Dep’t of Corrections, 194 Mich. App. 446; 487 N.W.2d 799 (1992) Hoerstman Gen. Contr., Inc. v. Hahn, 474 Mich. 66; 711 N.W.2d 340 (2006) Maiden v. Rozwood, 461 Mich. 109; 597 N.W.2d 817 (1999) Mays v Three Rivers Rubber Corp, 135 Mich. App. 42; 352 N.W.2d 339 (1984) Michigan Education Association v. Secretary of State (On Reh) 489 Mich. 194; 801 N.W.2d 35 (2011) Millross v. Plum Hollow Golf Club, 429 Mich. 178, 183; 413 N.W.2d 17 (1987) Rakowski v. Sarb, 269 Mich. App. 619, 629; 713 N.W.2d 787 (2006) Robinson v. Detroit, 462 Mich. 439, 462; 613 N.W.2d 307 (2000) Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1014 Page 13 of 65 xiii Tarleda v. Crabtree, 263 Mich. App. 80; 687 N.W.2d 333 (2004) 42 U.S.C. §300(f) 42 U.S.C. §300g-3 MCL 325.1001, et seq. MCL 691.1401 MCL 691.1406 40 C.F.R. §141(I) 40 C.F.R. §141.80 Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1015 Page 14 of 65 1 STATEMENT OF FACTS City of Flint’s Water System The City of Flint operates a Department of Public Works and a water treatment plant (Compl. ¶¶89, Pg. ID 54) which provides water services to its customers, including the Plaintiffs, as part of the City of Flint’s public duties, responsibilities and services (Compl. ¶¶69 and 89, Pg. ID 47 and 54). On March 29, 2013, Emergency Manager Kurtz executed Resolution 2013 EM 041 to authorize the City of Flint to purchase water capacity from the newly formed Karegnondi Water Authority (“KWA”) (Compl. ¶98. Pg. ID 57). On April 11, 2013, then State Treasurer Andy Dillon notified Emergency Manager Kurtz that he approved the City of Flint’s contract with the KWA (Compl. ¶99, Pg. ID 57). On June 28, 2013, Emergency Manager Kurtz signed a “raw water supply contract” to purchase water from the KWA (Compl. ¶102, Pg. ID 57). On September 11, 2013, Emergency Manager Brown signed resolution EM 1082013 which approved the contract between the City of Flint, Genesee County and the KWA (Compl. ¶103, Pg. ID 57). The Plaintiffs have alleged that the City of Flint began using the Flint River as its primary drinking water source on April 25, 2014 at the direction of then Emergency Manager Earley (Compl. ¶112, Pg. ID 60). The Plaintiffs have alleged that Emergency Manager Kurtz retained the services of the Defendant Lockwood, Andrews & Newnam, P.C. (“LAN”) “…to Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1016 Page 15 of 65 2 provide its expertise and view of the advisability of using the Flint River as a primary source of drinking water supply for (the) Plaintiffs.” (Compl., ¶92, Pg. ID 55). The Plaintiffs’ claim that LAN’s performance “…fell short of the appropriate standards of care…” by (A) failing to recognize and advise Flint how to adequately disinfect the Flint River water to kill harmful bacteria and keep disinfection byproducts within legal limits, (B) failing to advise Flint regarding the full extent to which its water treatment plant, given its part-time uses since 1965, needed to implement process and control equipment upgrades in order to be made into a full-fledged water treatment plant capable of supporting the necessary processing of Flint River water as a reliable primary drinking water source for Plaintiffs and (C) failing to advise Flint of the corrosive nature of Flint River water and failing to implement treatment to prevent distribution system and household plumbing corrosion (Compl. ¶92, Pg. ID 55). The Plaintiffs The Plaintiffs are a number of adult residents of Flint who claim that they have been exposed to toxic and contaminated water from the City of Flint’s water treatment plant beginning on April 25, 2014 and who have “…suffered injuries to person and property as a result of said exposure.” (Compl., ¶¶11-16, 18-23, 25-28, 30-31, 33, 35-36, 38, 40-43, 49, 51-63, Pg. ID 30-44). Some of those adult Plaintiffs also have alleged claims as the next friends on behalf of minor children whom the Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1017 Page 16 of 65 3 Plaintiffs claim have sustained injuries from their alleged exposure to water from the Flint Water Treatment Plant (Compl. ¶¶17, 29, 32, 34, 37, 39, 48, 50 and 64, Pg. ID 32, 35-38, 40 and 44). The MDEQ Current and Former Employee Defendants (hereafter “MDEQ Employee Defendants”) Ms. Liane Shekter Smith is the former Chief of the Office of Drinking Water and Municipal Assistance for the Michigan Department of Environmental Quality (“MDEQ”) (Compl. ¶79, Pg. ID 51). Mr. Adam Rosenthal is a Water Quality Analyst assigned to the MDEQ’s Lansing District Office (Compl. ¶80, Pg. ID 51). Mr. Patrick Cook is a Water Treatment Specialist assigned to the MDEQ’s Lansing Community Drinking Water Unit (Compl. ¶82, Pg. ID 52). Mr. Michael Prysby is an engineer assigned to the MDEQ’s District 11 (Genesee County), including the City of Flint (Compl. ¶83, Pg. ID 52). Mr. Stephen Busch is a District Supervisor assigned to the MDEQ’s Lansing District Office (Compl. ¶84, Pg. ID 52). The Plaintiffs claim that they sued each of the MDEQ Employee Defendants in their individual capacity because each employee had allegedly “…approved of and endorsed the decisions that deliberately created, increased, and prolonged the hazards, threats, and dangers that arose from switching Flint’s drinking water supply to the Flint River.” (Compl. ¶¶79-80 and 82-84, Pg. ID 51-52). The Plaintiffs’ have failed to claim that the MDEQ Employee Defendants made those decisions. The Plaintiffs' only other specific allegations against any MDEQ Employee Defendant Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1018 Page 17 of 65 4 are that he or she exchanged e-mails with other MDEQ employees, EPA employees, or the City of Flint Water Treatment Plant employees discussing Flint's public water system. None of these e-mails were sent to Plaintiffs, nor were they disseminated to the public at any time relevant to this Complaint. The following describes the Plaintiffs’ allegations against each of the MDEQ Employee Defendants. Liane Shekter Smith On January 12, 2015, Ms. Shekter Smith and others communicated via e-mail about how the State of Michigan’s installation of water coolers in the State’s office building located in the City of Flint may affect Flint’s residents’ perceptions of drinking water safety and may “make it more difficult…for ODWMA staff.” (Compl. ¶128, Pg. ID 63). On January 21, 2015, Ms. Shekter Smith e-mailed some unidentified colleagues regarding the Flint water supply, stating that when the City of Flint decided to leave the Detroit water system and operate using the Flint River, the MDEQ’s “…role wasn’t (sic) to tell them our opinion; only what steps would be necessary to make the switch.” (Compl. ¶131, Pg. ID 64). On January 29, 2015, Ms. Shekter Smith and Mr. Jim Sygo of the MDEQ exchanged e-mails in which Ms. Shekter Smith, according to Plaintiffs, allegedly “…identified the Flint water quality problem as being one of corrosion issues across the distribution system rather than a ‘premises plumbing’ issue.” (Compl. ¶133, Pg. ID 64). Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1019 Page 18 of 65 5 On September 10, 2015 Ms. Shekter Smith received an e-mail from the United States Environmental Protection Agency (“EPA”) which said that the EPA acknowledged 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 contract (sic) with corrosive water.” (Compl., ¶165, Pg. ID 71). On September 11, 2015, Ms. Shekter Smith “…commented about Flint’s timing for corrosion control equipment and noted ‘the ball’s in their court.’” (Compl. ¶166, Pg. ID 71). Adam Rosenthal On April 16, 2014, the City of Flint’s Laboratory and Water Quality Supervisor Michael Glasgow (Compl., ¶87, Pg. ID 53) wrote an e-mail to Mr. Rosenthal which stated in part: “Any information would be greatly appreciated, because it looks as if we will be starting the plant up tomorrow and are being pushed to start distributing water as soon as possible. As the acting F-1, I would like to make sure we are monitoring, reporting and meeting our requirements before I give the O.K. to start distributing water.” (Compl. ¶110, Pg. ID 59). Mr. Glasgow wrote another e-mail to Mr. Rosenthal on April 17, 2014 which said in part: “I have people above me making plans to distribute water ASAP. I was reluctant before, but after looking at the monitoring schedule and our current staffing, I do not anticipate giving the O.K. to begin sending water out any time soon. If water is distributed from this plant in the next couple weeks, it will be against my direction. I need time to Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1020 Page 19 of 65 6 adequately train additional staff and to update our monitoring plans before I will feel we are ready. I will reiterate this to management above me, but they seem to have their own agenda.” (Compl. ¶111, Pg. ID 59). On June 25, 2015, Mr. Rosenthal e-mailed Mr. Glasgow and Brent Wright, an employee in the Flint Water Plant, to remind them that 61 more lead and copper samples need to be collected and sent to a laboratory by June 30, 2015, stating in part “and that they are will be (sic) below the AL [action level] for lead. As of now with 39 results Flint’s 90th percentile is over the AL for lead.” (Compl. ¶152, Pg. ID 68). Patrick Cook On April 25, 2015, an EPA employee e-mailed Mr. Cook “…to express concern regarding Flint’s lack of corrosion control treatment, pre-flushing and high lead levels,” stating that “…Flint does not appear to meet requirements for OCCT without treatment.” (Compl., ¶149, Pg. ID 67) (emphasis added). On April 27, 2015, Mr. Cook, Mr. Busch and Mr. Prysby exchanged e-mails during which, in response to Mr. Busch’s statement about the EPA’s employee’s “persistence,” Mr. Cook responded “I agree, the constant second-guessing of how we interpret and implement our rules is getting tiresome.” (Compl. ¶150, Pg. ID 67). On May 1, 2015, during an e-mail exchange with the EPA, Mr. Cook indicated that the MDEQ was delaying a decision about corrosion control pending completion of a second six-month monitoring period in June of 2015, stating in part that because Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1021 Page 20 of 65 7 Flint will switch its water source in another year “requiring a [corrosion control] study at the current time will be of little value.” (Compl. ¶151, Pg. ID 68). Michael Prysby On January 12, 2015 Mr. Prysby participated in e-mails regarding how the State of Michigan’s placement of water coolers in the Flint’s State office building may affect Flint’s residents’ perceptions of drinking water safety and may make it more difficult for the ODWMA staff (Compl. ¶128, Pg. ID 63). On February 27, 2015 Mr. Prysby received an e-mail exchange with the EPA in regard to the latter’s inquiry about optimized corrosion control at Flint’s water treatment plant (Compl. ¶138, Pg. ID 65). On April 23, 2015, an EPA employee sent an e-mail to Mr. Prysby and Mr. Busch in which the EPA employee stated that “other than sampling for Pb/Cu, I (the EPA employee) don’t (sic) think Flint is doing anything regarding corrosion control.” (Compl. ¶147. Pg. ID 67). On April 27, 2015, Mr. Prysby participated in an e-mail exchange with Mr. Cook and Mr. Busch regarding the EPA’s employee’s “persistence” and the EPA’s second-guessing of how the MDEQ staff interprets and implements its rules (Compl. ¶150, Pg. ID 67). Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1022 Page 21 of 65 8 Stephen Busch The Plaintiffs allege that on March 26, 2013, Mr. Busch wrote an e-mail to then MDEQ Director Daniel Wyant regarding the health risks posed by switching to the Flint River as a water source, stating that those risks “…pose an increased microbial risk to public health and pose an increased risk of disinfection by- product.” (Compl. ¶96, Pg. ID 56). On February 27, 2015 Mr. Busch received an e-mail exchange with the EPA in regard to the latter’s inquiry about optimized corrosion control at Flint’s Water Treatment Plant (Compl. ¶138, Pg. ID 65). The Plaintiffs allege that on February 27, 2015 Mr. Busch responded to the EPA’s inquiry by stating (in part) that “Flint…has an optimized corrosion control program (and) conducts quarterly water quality parameter monitoring at 25 sites and has not had any unusual results.” (Compl. ¶139, Pg. ID 65). The Plaintiffs also allege that on March 13, 2015, Mr. Busch sent an e-mail to the Genesee County Health Department and “implied” that the MDEQ did not have any responsibility for Legionella (which none of the Plaintiffs have claimed to sustain) because it was not regulated by the SDWA. In the same e-mail Mr. Busch stated the Legionella was not coming from Flint’s water treatment plant, could be associated with water main breaks, leaks or repairs to the distribution system and Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1023 Page 22 of 65 9 reminded the Genesee County Health Department of its job to perform epidemiological investigations (Compl. ¶143, Pg. ID 66). On March 17, 2015, Mr. Busch e-mailed the then Emergency Manager “with instructions to conduct monitoring for Legionella at the water treatment plant and in the distribution system.” (Compl. ¶144, Pg. ID 66). On April 23, 2015, Mr. Busch was one of the recipients of the EPA’s e-mail which stated that the EPA’s representative did not think that Flint was doing anything regarding corrosion control other than sampling for lead (Pb) and copper (Cu). (Compl. ¶147, Pg. ID 67). On April 27, 2015, Mr. Busch was included in an e-mail exchange with Mr. Cook and Mr. Prysby regarding the EPA’s employee’s “persistence” and second- guessing of how the MDEQ staff interpreted and implemented its rules (Compl. ¶150, Pg. ID 67). The Plaintiffs’ Complaint fails to allege that any of the e-mails discussed above were either sent to any of the Plaintiffs or disseminated to the public at any time relevant to this Complaint. The Plaintiffs’ Collective Allegations Against the MDEQ Employee Defendants The Plaintiffs’ Complaint includes a number of allegations against the “Defendants” without identifying any particular Defendant (Compl., ¶¶1-3, 4, 6, 192-199, 218, 221, 225 and 226, Pg. ID 28-29, 77-78, 80-83). Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1024 Page 23 of 65 10 The Complaint also refers to “all” of the Defendants without identifying any particular Defendant (Compl. ¶¶202-203, 211 and 217, Pg. ID 78-81). The Complaint also includes allegations against “one or more of the Defendants” without specifying any particular Defendant (Compl. ¶¶ 219-220, Pg. ID 82). Plaintiffs’ Complaint In addition to the MDEQ Employee Defendants, the Plaintiffs have sued three former emergency managers for the City of Flint, a former mayor of the City of Flint, two members of the City of Flint’s Department of Public Works and Water Treatments Plant staff and the City of Flint (Compl. ¶¶65-69, 86-87, Pg. ID 44-49 and 53). The Plaintiffs also sued Governor Rick Snyder, the State of Michigan, the Michigan Department of Environmental Quality and the Michigan Department of Health and Human Services (collectively “State Defendants”). On a stipulated order the Court remanded the Plaintiffs’ claims against the State Defendants to the Michigan Court of Claims (Doc. 13, Pg. ID 547). The Plaintiffs’ Complaint includes the following alleged causes of action against the MDEQ Employee Defendants:1  Count I - Negligence (Compl. ¶¶191-200, Pg. ID 76-78) 1 The Plaintiffs have stipulated that their Complaint does not allege a tortious interference with contract claim against the MDEQ Employee Defendants (ECF No. 21; Pg. ID 560-561). Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1025 Page 24 of 65 11  Count II - Gross Negligence (Compl. ¶¶201-203, Pg. ID 78-79)  Count V - Conspiracy to Tortiously Interfere with Contract (Compl. ¶¶215-221 Pg. ID 81-82). The Plaintiffs’ Complaint also includes a general “proximate cause” section which alleges that the “Defendants’” actions and/or conduct were “a cause of the injuries to persons and property of Plaintiffs herein.” (Compl. ¶225, Pg. ID 83) (emphasis added). Plaintiffs have claimed that the injuries to their persons and property was “a natural and probable result” of the Defendants’ actions and/or conduct (Compl. ¶226, Pg. ID 83) (emphasis added). The Complaint repeatedly alleges that the Defendants’ (not just the moving parties) conduct was a proximate cause of the Plaintiffs’ alleged injuries and damages (Compl. ¶¶194, 198, 200, 203, 208 [Re: LAN], 214 and 221, Pg. ID 77-80 [Re: LAN], and 81-82) (emphasis added). STANDARD OF REVIEW A plaintiff must satisfy the pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544; 127 S. Ct. 1955; 167 L.Ed.2d 929 (2007), to survive a Rule 12(b)(6)motion. The United States Supreme Court in Twombly repudiated the “no set of facts” language from Conley v. Gibson, 355 U.S. 41; 78 S. Ct. 99; 2 L.Ed.2d 80 (1957), holding that the appropriate standard is: “A plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do....Factual allegations must be enough to raise a right to relief above the Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1026 Page 25 of 65 12 speculative level.... Twombly, 550 U.S. at 555 (internal citations and quotations omitted). The Sixth Circuit has relied on the Twombly pleading standard when considering a Rule 12(b)(6) motion. “A complaint containing a statement of facts that merely creates a suspicion of a legally cognizable right of action is insufficient.” Bishop v. Lucent Technologies, Inc., 520 F.3d 516, 519 (6th Cir., 2008). “The factual allegations, assumed to be true, must do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief.” League of United Latin American Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir., 2007). The Court additionally does not have to accept as true “a legal conclusion couched as a factual allegation.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir., 2009) (internal citations omitted). The Sixth Circuit has further directed that it “may no longer accept conclusory legal allegations that do not include specific facts necessary to establish the cause of action.” New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1050 (6th Cir., 2011). The complaint “must assert sufficient facts to provide the defendant with ‘fair notice of what the . . . claim is and the grounds upon which it rests.’” Rhodes v. R&L Carriers, Inc., 491 F. App’x 579, 582 (6th Cir., 2012) (citing Twombly, 550 U.S. at 555) (emphasis added). Besides the well-pleaded complaint, a court may consider public records and governmental agency decisions in deciding a 12(b)(6) motion to dismiss. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir., 1999) (citations omitted). Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1027 Page 26 of 65 13 The complaint must allege sufficient facts to “state a claim to relief that is plausible on its face.” Sutton v. Metro. Gov’t of Nashville and Davidson Cnty., 700 F.3d 865, 871 (6th Cir., 2012) (citing Twombly, 550 U.S. at 570). “A claim is plausible on its face if the ‘plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 369 (6th Cir., 2011) (quoting Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678; 129 S.Ct. 1937, 1948; 173 L.Ed.2d 868 (2009). If plaintiffs do not “nudge[] their claims across the line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at 570. ARGUMENTS I. PLAINTIFFS’ COMPLAINT FAILS TO STATE HOW EACH OF THE MDEQ EMPLOYEE DEFENDANTS, THROUGH THEIR INDIVIDUAL ACTS, COMMITTED THE TORTS WHICH ARE THE SUBJECT OF THE PLAINTIFFS’ COMPLAINT. The Plaintiffs’ Complaint is replete with references to the actions and/or inactions of the “Defendants,” “all Defendants” and “one or more Defendants.” The Plaintiffs’ Complaint fails to describe the specific acts or omissions on the part of each of the particular MDEQ Employee Defendants. It is well-recognized that: Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1028 Page 27 of 65 14 “(c)omplaints involving multiple claims and parties often pose special pleading problems because of their inherent complexity. Frequently, a complaint alleging several claims for relief against one or more defendants will fail to inform the defendant sufficiently to enable them to prepare an adequate response. Multiple claims should be set out in accordance with the formal requirements of Federal Rule 10 so as to permit a defendant to reply to each particular averment that pertains to him or her and have some notice of the legal theory or theories underlying the plaintiff’s action. Similarly, in order to state a claim for relief, actions brought against multiple defendants must clearly specify the claims with which each individual defendant is charged.” 5 Wright and Miller, Federal Practice and Procedure, §1248, pp. 442-443 (footnotes and internal citations omitted). For purposes of this Brief, the principle discussed in the above quotation from Wright and Miller is known as the “rule against collective pleading.” Courts have historically applied the rule against collective pleading to “Bivens“ lawsuits.2 See generally, Iqbal, supra, 556 U.S. at 678 [“…a plaintiff must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution”]. See also Marcilis v. Township of Redford, 693 F.3d 589, 596-597 (6 Cir., 2012) [affirming a district court’s dismissal of constitutional claims against two defendants where the plaintiff failed to “allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right,” quoting from and citing Lanman v. Hinson, 529 F.3d 673, 684 (6 Cir., 2008)]. 2 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388; 91 S.Ct. 1999; 29 L.Ed.2d 619 (1971). Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1029 Page 28 of 65 15 The Sixth Circuit has also applied the rule against collective pleading to non- Bivens complaints. In Bondex Int’l, Inc. v. Hartford Accident and Indemnity Company, 667 F.3d 669, 681 (6th Cir., 2011), an insurance coverage dispute, the court rejected the appellants’ argument that their amended complaint’s “generic references to the misconduct of ‘all Defendants’” encompassed an alternative theory of insurance coverage, stating “…we cannot accept such threadbare allegations as meeting the Federal Rules’ notice-pleading standard,” citing Ashcroft v. Iqbal, supra, Bell Atl. Corp. v. Twombly, supra. The Plaintiffs’ Complaint fails to give the MDEQ Employee Defendants fair notice of what the claims are against each one of them. The Plaintiffs’ various allegations about the MDEQ Employee Defendants’ e-mails and one letter (see pp. 4-11, above) are insufficient to show that any of the individual MDEQ Employee Defendants acted in any way to violate any of the Plaintiffs’ rights. None of the Plaintiffs’ collective allegations state how any of the MDEQ Employee Defendants committed any of the alleged torts of negligence, gross negligence or conspiracy to tortiously interfere with contract. In accordance with Bondex Int’l, Inc., supra, the Court should find that the instant Plaintiffs’ allegations against “the Defendants,” “all Defendants” and “one or more of the Defendants” fail to comport with the Federal Rules notice pleading standard and for that reason should dismiss the Plaintiffs’ Complaint. Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1030 Page 29 of 65 16 II. THE MDEQ EMPLOYEE DEFENDANTS ARE ABSOLUTELY IMMUNE FROM THE PLAINTIFFS’ STATE LAW CLAIMS. A. The Absolute Immunity Afforded Federal Actors Precludes Plaintiffs’ State Law Claims Against All MDEQ Employee Defendants. The MDEQ Employee Defendants are entitled to absolute immunity because federal law authorized and controlled their actions. Butz v. Economou, 438 U.S. 478, 490; 98 S.Ct. 2894; 57 L.Ed.2d 895 (1978). Absolute immunity has its roots in protecting officials “in the execution of their federal statutory duties from criminal or civil actions based on state law.” Id. at 489 (citations omitted). For over a century, cases have demonstrated that “a federal official was protected for action tortious under state law if his acts were authorized by controlling federal law.” Id. at 490. The Supreme Court has made clear that courts should take a “functional approach” in determining whether absolute immunity protects an official from liability, and focus on “the nature of the function performed, not the identity of the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993). Therefore, absolute immunity should be extended to state officials performing federal statutory duties in the same manner as absolute immunity is afforded to federal officials. At issue in the present case is the MDEQ Employee Defendants’ execution of federal statutory duties under the federal Safe Drinking Water Act (“SDWA”), a comprehensive, federal regulatory scheme. Pursuant to USEPA’s grant of primacy to the state of Michigan, MDEQ and MDEQ Employee Defendants have assumed Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1031 Page 30 of 65 17 primary responsibility for SDWA compliance and enforcement—duties that would otherwise be performed by federal officials from the USEPA. Plaintiffs’ state law claims are premised on alleged actions by MDEQ Employee Defendants that were authorized and controlled by the SDWA. Just as a USEPA official carrying out these federal statutory duties are absolutely immune from state tort liability, the MDEQ Employee Defendants carrying out the federally-mandated duties are absolutely immune from Plaintiffs’ state tort claims. Count II of the Plaintiffs’ Complaint claims that the MDEQ Employee Defendants were grossly negligent in connection with their alleged decision-making and oversight of the City of Flint’s monitoring, testing and treatment of Flint’s drinking water under the federal Safe Drinking Water Act, 42 U.S.C. §300(f) et seq. and the United States Environmental Protection Agency’s (“EPA’s”) Lead and Copper Rule (“LCR”), 40 C.F.R. §141(I) (Compl. ¶¶116-118, 123-125, 138-141, 148-152 and 160; Pg. ID 60-62, 65, 67-68 and 70). The MDEQ Employee Defendants’ authority to regulate Michigan’s public drinking water systems is derived from the federal Safe Drinking Water Act, and the Lead and Copper Rule, among other regulations. The regulation of Michigan’s public drinking water systems occurred under the EPA’s direction, control and supervision. The SDWA directs the EPA to promulgate national primary drinking water standards and to regulate public water systems. 42 U.S.C. §300(f) et seq. With regard to the regulation Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1032 Page 31 of 65 18 of lead and copper, in 1991 the EPA promulgated national primary drinking water regulations for controlling lead and copper in public drinking water. 56 Fed. Reg. 26460 (June 7, 1991). These regulations are known as the “Lead and Copper Rule (“LCR”). 40 C.F.R. §§141.80 et seq. The EPA’s LCR applies to public water systems such as the one owned and operated by the City of Flint. 40 C.F.R. §141.80(a). The LCR generally requires those water systems to monitor the levels of lead and copper at consumers’ taps and in various circumstances requires those public water systems to use various treatment techniques such as corrosion control treatment, source water treatment, lead service line replacement and public education. 40 C.F.R. §§141.80 (b)-(h). The SDWA authorizes the EPA to delegate primary enforcement responsibility for public drinking water systems to states where the EPA determines, among other things, that a state (1) has adopted drinking water regulations which are no less stringent than the national primary drinking water regulations promulgated by the EPA, (2) has adopted and is implementing adequate procedures for the enforcement of the state regulations, and (3) will keep the records and make such reports as the EPA requires. 42 U.S.C. §300g-2 and 40 C.F.R. §§142.10 and 142.11. Pursuant to the above statutory and regulatory scheme, the MDEQ assumed the EPA’s duties under the SDWA. Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1033 Page 32 of 65 19 However, the EPA has reserved oversight authority over the MDEQ which includes mandatory EPA intervention in the form of notifications, advice, technical assistance and where the state’s action is insufficient, the EPA may issue enforceable orders and inspections to bring water systems into compliance with the federal standards. See 42 U.S.C. §300g-3 and 40 C.F.R. §§141.82(i), 141.83(b)(7), 142.19, 142.30 and 142.34. Each state with primary enforcement responsibility, such as Michigan, must submit to the EPA detailed quarterly and annual reports regarding the regulation of public ranking water systems. 40 C.F.R. §§142.15 and 142.19. The EPA must, at least annually, review each state’s reports to determine whether they have complied with EPA’s requirements. 40 C.F.R. §142.17(a)(1). If a state no longer meets EPA’s requirements, the EPA must initiate proceedings to withdraw primacy approval. 40 C.F.R. §142.17(a)(2). If the EPA determines that a state has abused its discretion in making corrosion control or source water treatment determinations, the EPA may issue an order establishing federal treatment requirements for a public water system. 40 C.F.R. §142.19(a). Whenever a state revises its approved primacy program in response to a new or revised federal regulation, including the regulation applicable to lead and copper, a state must submit a request to the EPA’s administrator for approval of its program revision. 40 C.F.R. §§142.12(a)(1) and 142.16(d). Whenever the EPA finds that a Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1034 Page 33 of 65 20 public water system failed to comply with any primary drinking water regulations, the EPA “shall provide advice and technical assistance to such state and public water system as may be appropriate to bring the system into compliance by the earliest feasible time.” 40 C.F.R. §142.30. In recognizing the complexity of the Lead and Copper Rule, the EPA’s commentary to its 2007 amendments to that rule states that the EPA will provide guidance to help systems identify source water changes which could impact optimal corrosion control. 72 Fed. Reg. 57782, 57789 (October 10, 2007). In this regard the EPA issued at least 11 major guidance documents which direct all aspects of a state’s implementation of the Lead and Copper Rule (see ECF 1, Pg. ID 7, ¶26). The EPA’s direction and control over the MDEQ’s implementation of the SDWA and the LCR is demonstrated by the EPA’s January 21, 2016 emergency order in which the EPA began monitoring and testing of Flint Water System and ordered the MDEQ to take specific actions related to Flint (ECF 1, Pg. ID 8, ¶27 and Exhibit F referenced therein). In light of the above, it is clear that the MDEQ essentially functions as an agent of the EPA to implement the SDWA and LCR. The MDEQ Employee Defendants, like EPA employees, were required to carry out federally-mandated duties. For that reason, they are absolutely immune from the Plaintiffs’ state tort law claims. Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1035 Page 34 of 65 21 B. Defendant Shekter Smith is Entitled to Absolute Immunity From All of Plaintiffs’ Claims. Ms. Shekter Smith is the former Chief of the Office of Drinking Water and Municipal Assistance for MDEQ.” (Compl. ¶79, Pg. ID 51). The Court should find that the Defendant Shekter Smith has absolute tort immunity pursuant to MCL 691.1407(5). MCL 691.1407(5) provides that “the elective or highest appointive executive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legislative, or executive authority.” When a government official covered by MCL 691.1405(5) is acting within the scope of his or her authority, that official enjoys absolute tort immunity. American Transmissions, Inc. v. Attorney Gen, 454 Mich. 135; 560 N.W.2d 50, 52 (1997); EBI-Detroit, Inc v. City of Detroit, 279 Fed. Appx. 340 (6th Cir., 2008). For the purposes of deciding whether Ms. Shekter Smith qualifies for governmental immunity, the court must determine whether (1) Ms. Shekter Smith was the highest official of the ODWMA, and (2) whether the ODWMA is a level of government. MCL 691.1407(5). There is no dispute that as the Chief of the ODWMA, Ms. Shekter Smith was the highest official of the ODWMA at the time of the allegations contained within the complaint. Similar to the “highest official” analysis, the ODWMA is “a level of Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1036 Page 35 of 65 22 government” as the term is used in MCL 691.1407(5). The ODWMA oversees approximately 11,000 public water supplies to ensure safe drinking water. In addition to a multitude of other responsibilities, the ODWMA is responsible for SDWA compliance. The ODWMA oversees the Michigan Safe Drinking Water Act (“MSDWA”) by authority conferred on the Department of Environmental Quality by MCL 325.1005, et seq. As the primary enforcement authority for the MSDWA, the ODWMA has been given “broad-based jurisdiction or extensive authority” by the legislature and serves as the regulatory oversight for all public water supplies. As the MSDWA primary enforcement authority the ODWMA has traditional powers of governance and the power to make its own decisions. Thus, it qualifies as a “level of government” under MCL 691.1407(5). See, e.g., Salmon v. Wilkerson, 2002 WL 1603180, at *2 (July 19, 2002) (unpublished) [township attorney entitled to absolute immunity]; Harrison v. Director of Dep’t of Corrections, 194 Mich. App. 446, 451- 452; 487 N.W.2d 799 (1992) [former director of the Department of Corrections acting within his broad-based scope of executive authority is entitled to absolute immunity]; Chivas v. Koehler, 182 Mich. App. 467, 471; 453 N.W.2d 264 (1990). Because Ms. Shekter Smith occupied the ODWMA’s highest executive position, her right to immunity is absolute and the Court should dismiss the claims against her. EBI-Detroit, Inc v. City of Detroit, 279 Fed. Appx. 340 (6th Cir., 2008). Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1037 Page 36 of 65 23 Michigan courts have been willing to expand the “highest official” analysis under the doctrine of absolute immunity to multiple high-ranking officials within a department or agency. See, e.g., Chivas v. Koehler, supra, which found that both the Director and Deputy Director of the Department of Corrections had absolute immunity. 182 Mich. App. at 471. Thus, assuming arguendo that Ms. Shekter Smith is not the highest official of the MDEQ (as opposed to the ODWMA), she should still be afforded immunity based upon her position as Chief of the ODWMA. As the Chief of the ODWMA for the MDEQ, Ms. Shekter Smith was solely responsible for formulating and implementing major programs and policy relating to the critical mission of the ODWMA, including oversight and enforcement of the MSDWA. Therefore, for purposes of MCL 691.1407(5), as Chief of the ODWMA she was one of the “highest executive officials” within the MDEQ, and is entitled to absolute immunity. Id. at 471. III. THE PLAINTIFF HAS FAILED TO STATE A CLAIM FOR NEGLIGENCE AGAINST THE MDEQ EMPLOYEE DEFENDANTS UPON WHICH RELIEF CAN BE GRANTED (COUNT I) A. The MDEQ Employee Defendants are Immune from the Plaintiffs’ Negligence Claims. The MDEQ Employee Defendants are immune from the Plaintiffs’ negligence claims pursuant to Michigan’s statutory governmental tort immunity. MCL 691.1407(2) . The Plaintiffs’ claim, if any, is limited to a claim of gross negligence. MCL 691.1407(2)(c). “Ordinary negligence” is not “gross negligence.” Maiden, Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1038 Page 37 of 65 24 supra, 461 Mich. at 122. Plaintiffs’ negligence claim (Count I, Pg. ID 76-78) is contrary to Michigan’s statutory grant of governmental immunity to the MDEQ Employee Defendants and the Court must dismiss Count I of the Plaintiffs’ Complaint. B. The “Public Building” Exception to Governmental Immunity, MCL 691.1406, is inapplicable to the MDEQ Employee Defendants (Compl., Count I-Negligence, ¶¶197 and 198, Pg. ID 78).3 The Court should find that the Plaintiffs’ negligence claim based upon the public building exception to governmental immunity is inapplicable to the MDEQ Employee Defendants because, either singularly or together, they are neither a “governmental agency” as that term is intended in the public building exception nor are they responsible for repairing or maintaining the City of Flint’s water treatment plant. A Court’s primary task when interpreting a statute (and an ordinance) is to ascertain and give effect to the legislative intent. Michigan Education Association v. Secretary of State (On Reh) 489 Mich. 194, 217; 801 N.W.2d 35 (2011). A court does so by examining the statute’s (and ordinance’s) specific language. United States Fidelity Insurance & Guaranty Company v. Michigan Catastrophic Claims Association (On Reh) 484 Mich 1, 13; 795 N.W.2d 101 (2009). If the plain and 3 The Plaintiffs’ Complaint has misidentified the public building exception as MCL 691.1409 (Compl. ¶¶197 and 198, Pg. ID 78). The correct citation is MCL 691.1406. Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1039 Page 38 of 65 25 ordinary meaning of the statutory/ordinance language is clear, it is unnecessary for the Court to construe it. In re Receivership of 11910 South Francis Road, 492 Mich. 208, 222; 821 N.W.2d 503 (2012). MCL 691.1406 provides in pertinent part that “governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public” and “…are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or take action reasonably necessary to protect the public against the condition.” Michigan’s governmental immunity act defines “governmental agency” as “…this state or a political subdivision.” MCL 691.1401(a). A “political subdivision” is a “municipal corporation…or an agency, department…board or council of a political subdivision.” MCL 691.1401(e). A “municipal corporation” means a city, village or township or a combination thereof when acting jointly. MCL 691.1401(d). None of these definitions include an individual person. In order to avoid governmental immunity under MCL 691.1406, the Plaintiffs must prove that a Defendant is a governmental agency, the public building is open for use by members of the public, there was a dangerous or defective condition of the public building, the governmental agency had actual or constructive knowledge Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1040 Page 39 of 65 26 of the alleged defect and the governmental agency failed to remedy the alleged defect after a reasonable amount of time. Renny v. Department of Transportation, 478 Mich. 490, 495-496; 734 N.W.2d 490 (2007). Additionally, the governmental agency must be an owner, lessee or in control of the public building. Ali v. Detroit, 218 Mich. 581, 585-586; 554 N.W.2d 384 (1996). The Plaintiffs have failed to allege that the MDEQ Employee Defendants owned, leased or controlled Flint’s water treatment plant. It is obvious that the MDEQ Employee Defendants are also not a “governmental agency” as defined in MCL 691.1401. For these reasons, the Court should find that the Plaintiffs’ negligence claim based upon the public building exception to governmental immunity is inapplicable to the MDEQ Employee Defendants. C. The Plaintiffs Have Failed to State a Negligence Claim Based Upon the MDEQ Employee Defendants Alleged Violation of the City of Flint’s Ordinance 46-16 Upon Which Relief Can Be Granted (Compl. Count I-Negligence, ¶¶199 and 200, Pg. ID 78). The rules of statutory construction apply to ordinances. Goldstone v. Bloomfield Township Public Library, 479 Mich. 554, 568 n. 15; 737 N.W.2d 476 (2007). As discussed above, a Court’s primary task when interpreting a statute is to ascertain and give effect to the Legislative intent. Michigan Education Association, supra. A Court does so by examining the statute’s (and in this instance ordinance’s) specific language. United States Fidelity Insurance & Guaranty Company, supra. If Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1041 Page 40 of 65 27 the plain and ordinary meaning of the ordinance is clear, it is unnecessary for the Court to construe it. In Re Receivership of 11910 South Francis Road, supra. The City of Flint’s Ordinance 46-16 is included within Article II of the City of Flint’s Code of Ordinances entitled “Water Supply and Sewage Disposal System.” The various parts of Section 46 of Article II pertain to the organization and operation of the City of Flint’s Water Supply and Sewage Disposal System. Section 46-16 defines the following terms: a. Consumer. The person making application for water service or receiving the benefit of water service or who is legally liable for the payment of bills for the water service. b. Commodity. The furnishing of water service shall be deemed the sale of a commodity and the relationship between the Division of water supply of the city and the consumer is that of a vendor and purchaser. Generally, a regulatory ordinance does not create a private cause of action unless it includes an express provision which imposes liability upon a property owner or person. Cooper v. Guiterrez, 2014 WL 465713, at *2 (Mich. App., unpublished, 2014) and authorities cited therein. The Court in Cooper, supra held that the City of Westland’s animal control ordinance, which included a specific regulation of dangerous or vicious dogs, did not create a private cause of action in favor of a person who sustained injuries in an attack by two pit bull dogs. That ordinance did not contain an express provision imposing liability on a dog owner or another person. For that reason, the Court of Appeals affirmed the trial court Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1042 Page 41 of 65 28 therein’s finding that the ordinance did not create a cause of action. Cooper, supra, 2014 WL 465713, at *3. Likewise, the City of Flint’s water supply ordinance does not create a private cause of action for the instant Plaintiffs. Although the City of Flint has the right to terminate water service in certain circumstances and a consumer has a right to an administrative hearing to dispute the amount of the consumer’s water bill (see, e.g. 46-19.1[a][5] and 46-17[a], respectively), the ordinance does not create a private cause of action for the consumer against third parties. However, even if the City of Flint’s water system ordinance did create a private cause of action, the Court should dismiss the Plaintiffs’ claim because the MDEQ Employee Defendants do not come within the scope of the ordinance. The ordinance says nothing about employees of the Michigan Department of Environmental Quality. The ordinance clearly provides that the City of Flint owns and operates its water supply system. The MDEQ Employees Defendants do not own and operate the City of Flint’s water supply system. Flint’s water supply system ordinance does not apply to the MDEQ Employees Defendants. For these reasons, the Court should dismiss the Plaintiffs’ negligence claim based upon the City of Flint’s Ordinance 46-16. Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1043 Page 42 of 65 29 IV. THE PLAINTIFFS HAVE FAILED TO STATE A CLAIM OF GROSS NEGLIGENCE UPON WHICH RELIEF CAN BE GRANTED (COUNT II). The MDEQ is the state agency responsible for implementing and enforcing safe drinking water laws, rules and regulations (Compl. ¶76, Pg. ID 50-the MDEQ “…is a state of Michigan executive agency principally tasked with ensuring the public receives clear and potable water to drink and air to breath, as well as monitoring and cleanup of clearly polluted and poisonous water systems.) See also, MCL 325.1003 and 325.1005. The MDEQ Employee Defendants are employees of that state agency (Compl. ¶¶79-80 and 82-84, Pg. ID 51-52). A governmental employee is immune from liability where the employee is acting or reasonably believes that he or she is acting within the scope of the employee’s authority, the governmental agency is engaged in the exercise or discharge of a governmental function and the employee’s conduct does not amount to gross negligence that is the proximate cause of the alleged injury or damage. MCL 691.1407(2)(a), (b) and (c), respectively. The MDEQ certainly was involved in the exercise of a governmental function during the time and in regard to the events described in the Plaintiffs’ Complaint. The Plaintiffs have failed to contend to the contrary. Likewise, the Plaintiffs have claimed that the MDEQ Employee Defendants were, acting within their respective governmental positions with the MDEQ when they allegedly, “…approved of and Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1044 Page 43 of 65 30 endorsed the decisions that deliberately created, increased and prolonged the hazards, threats, and dangers that arose from switching Flint’s drinking water supply to the Flint River.” (Compl. ¶¶79-80 and 82-84, Pg. ID 51-52). The Plaintiffs’ Complaint has failed to allege that the MDEQ Employee Defendants were in control of and operated the Flint Water System. Musser v. Loon Lake Shores Association, Inc., 384 Mich. 616, 622; 186 N.W.2d 563 (1971) recognized the “…general principle of tort law that a person is liable only as he participates in an activity giving rise to a tort” during the course of finding that a mere co-owner of property who was not in possession or control thereof was not liable for the torts committed by others. See also Sholberg v. Truman, 496 Mich. 1, 8; 852 N.W.2d 89 (2014) which approvingly cited and relied upon Musser, supra, to find that a title owner who was not in possession and control over the subject property was not liable for a nuisance allegedly created by those in possession and control of the property. The MDEQ Employee Defendants neither controlled nor possessed the City of Flint’s water system. For that reason, they cannot be liable to the Plaintiffs. See generally, Sholberg, supra. The issues are whether Count II of the Plaintiffs’ Complaint has sufficiently alleged that each of the MDEQ Employee Defendants acted in a manner which was “so reckless as to demonstrate a substantial lack of concern for whether an injury results” and if so, whether that alleged gross negligence, if any, is the proximate Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1045 Page 44 of 65 31 cause of the Plaintiffs’ injuries and damages. However, before addressing those issues, the Court must first determine whether the MDEQ Employee Defendants owed a duty to the Plaintiffs. A. The MDEQ Employee Defendants Did Not Owe Any Duties to the Plaintiffs. Dismissal of the Plaintiffs’ gross negligence claim is proper if the Plaintiffs fail to establish that the MDEQ Employee Defendants owed the Plaintiffs a “duty in tort.” Beaudrie v. Henderson, 465 Mich. 124, 130; 631 N.W.2d 308 (2001), citing and relying upon MCR 2.116(C)(8), Michigan’s analog to Fed. R. Civ. P. 12(b)(6) and Maiden v. Rozwood, 461 Mich. 109, 135; 597 N.W.2d 817 (1999) [where a defendant owes no legal duty to the plaintiff, a gross negligence claim is unenforceable as a matter of law]. Whether a duty exists to protect a person from a reasonably foreseeable harm is a question of law for the court. Maiden, supra, 461 Mich. at 131. A duty of care may be based upon or arise from a statute, a contractual relationship, or pursuant to the common law which imposes an obligation to use due care or to act so as not to unreasonably endanger other persons or their property. See generally, Cummins v. Robinson Township, 283 Mich. App. 677, 692; 770 N.W.2d 521 (2009) and cases cited therein. Rakowski v. Sarb, 269 Mich. App. 619, 629; 713 N.W.2d 787 (2006) recognized that “…a duty ‘concerns whether a defendant is Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1046 Page 45 of 65 32 under any legal obligation to act for the benefit of the plaintiff.’” (Citation omitted and emphasis in original). Counts I and II of the Plaintiffs’ Complaint fail to allege that the MDEQ Employee Defendants owed a duty of care based upon an applicable statute or contractual relationship.4 Instead, the Plaintiffs have alleged that the MDEQ Employee Defendants owed the Plaintiffs a duty to exercise ordinary care (Compl. ¶192, Pg. ID 77). The Plaintiffs also claim that the “Defendants” failed to use reasonable care (Compl. ¶197, Pg. ID 77) and failed to use ordinary care (Compl. ¶¶193 and 195, Pg. ID 77). The Court in Rakowski, supra, held that when a court determines whether one owes a common-law duty of reasonable care to another, it considers the parties’ relationship, foreseeability of the harm, degree of certainty of injury, closeness of the connection between the defendant’s conduct and the claimed injury, moral blame attached to the conduct, the policy of preventing future harm, and the burdens and consequences of imposing a duty and the resulting liability for the breach thereof. Rakowski, supra, 269 Mich. App. at 629. Plaintiffs’ Complaint is woefully deficient in regard to allegations about any of the above factors. The Complaint fails to allege that there was any direct 4 The Plaintiffs’ negligence claim based upon the “public building” exception to governmental immunity, MCL 691.1406, is inapplicable to the MDEQ Employee Defendants (see Argument III, B, supra). Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1047 Page 46 of 65 33 relationship between the Plaintiffs and the MDEQ Employee Defendants or that the latter acted for or upon behalf of the Plaintiffs. Insofar as the “foreseeability” element is concerned, Samson v. Saginaw Professional Building, Inc., 393 Mich. 393, 406; 224 N.W.2d 843 (1975) said: “The mere fact that an event may be foreseeable does not impose a duty upon the defendant to take some kind of action accordingly…[T]o require the actor to act, some sort of relationship must exist between the actor and the other party which the law or society views as sufficiently strong….” Even if the MDEQ Employee Defendants could arguably foresee that consumers of Flint’s water may hypothetically encounter one or more of the contaminants at issue, the MDEQ Employee Defendants, as individuals, were not responsible for the City of Flint’s decision to switch its water source and effectuate that switch before implementing corrosion control. The City of Flint is the “supplier of water” to its residents. MCL 325.1002(t). The City of Flint is responsible to comply with all national drinking water standards stated in the SDWA. It is clear that these Defendants acted for the MDEQ and performed the functions which it assigned to them. The Court in Cummins, supra found that the township building officials/defendants therein did not owe the plaintiffs a duty to interpret and apply the township’s building code so as to impose “as little economic effect as possible.” 283 Mich. App. at 693. Likewise, the Court in Rakowski, supra found that a building Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1048 Page 47 of 65 34 inspector did not owe a duty of care to a third party injured by the faulty construction which the inspector had approved. Rakowski, supra, 269 Mich. App. at 630-635. The Court in Maiden, supra, found that a county medical examiner owed a duty to this state rather than to the plaintiff therein, a person under investigation for murder. 461 Mich. at 131-132. During the course of its opinion, Maiden, reviewed the statutes applicable to a county medical examiner and found that there was nothing in the statutory scheme which created a duty to a criminal defendant. 461 Mich. at 132. There is nothing in the MSDWA, MCL 325.1001 et seq., which even remotely suggests that the MDEQ Employee Defendants owe a duty to the Plaintiffs. MCL 325.1003 provides that the MDEQ has the power and control over public water supplies and suppliers of water. The MDEQ has the authority to, among other things, conduct a source water assessment at a public water supply. MCL 325.1003(b)(1)(b). The Department must review and evaluate plans and specifications for a proposed water works system. MCL 325.1004(1)-(4). The MDEQ must promulgate and enforce rules to carry out the Safe Drinking Water Act. MCL 325.1005. It did so in Michigan Administrative Code R325.10101 et seq. and R325.12801 et seq. The Plaintiffs’ Complaint fails to allege that any of these rules remotely suggest that the MDEQ’s employees owe any duties to users of a public water supply. MCL 325.1015(2) requires the MDEQ to inspect a waterworks system and the manner in which the system operates. The Department, rather than any of the Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1049 Page 48 of 65 35 instant Defendants, has the authority to take appropriate action to either limit a water system’s expansion or limit use from a public water supply until the supplier makes the appropriate changes to comply with state drinking water standards. MCL 325.1015(4). The Department has the authority to require the water supplier to notify its users of the extent and nature of the supplier’s non-compliance with the state’s drinking water standards. MCL 325.1019(1). The statute does not require the MDEQ and its employees to provide that notice. As in both Cummins and Rakowski which found that municipal building inspectors did not owe a duty of care to a third party, and as in Maiden which held that a medical examiner owed a duty to the state rather than a third party, the MDEQ Employee Defendants did not owe a duty of reasonable care to the Plaintiffs and members of the putative class. Rather, the MDEQ Employee Defendants owed a duty to their employer. For this reason, the Court should dismiss the Plaintiffs’ gross negligence claim. B. The Plaintiffs’ Complaint Fails to Allege that the MDEQ Employee Defendants Acted in Ways Which Comprise “Gross Negligence” as Defined in Michigan’s Governmental Immunity Act. “Gross negligence” is “…conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). Gross negligence is “… almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks. It is though, if an objective Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1050 Page 49 of 65 36 observer watched the actor, he could conclude, reasonably, that the actor simply did not care about the safety or welfare of those in his charge.” Tarleda v. Crabtree, 263 Mich. App. 80, 90; 687 N.W.2d 333 (2004). The Complaint wholly fails to plead gross negligence, as defined in MCL 691.1407(8)(a), because it fails to allege any specific “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results” by the MDEQ Employee Defendants. The Complaint alleges that “the actions of all Defendants herein…demonstrated substantial lack of concern or indifference, for whether injuries to Plaintiffs would result therefrom.” (Compl. ¶202, Pg. ID 78). As described in pages 4-9, the only “actions” of the MDEQ Employee Defendants were a series of e-mails which were neither sent to any of the Plaintiffs nor disseminated to the public. Those e-mails generally fall into three categories: (1) the decision to switch the water source for the City of Flint; (2) decisions regarding corrosion control; and (3) the alleged reaction and representations after the water switch. The City of Flint and its Emergency Manager made the decision to change to the KWA water source (and to use the Flint River as a temporary water source) and discontinue the purchase of DWSD water in March and April 2013. The MDEQ Employee Defendants did not make that decision. Even if that decision is actionable, the MDEQ Employee Defendants neither made it nor are they liable for it. Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1051 Page 50 of 65 37 With respect to corrosion control, Plaintiffs’ Complaint fails to allege that any of the MDEQ Employee Defendants made the decision to not utilize corrosion control treatments at the time of the switch to the Flint River as a water source. Even had such an allegation been made, any decision to not immediately implement a full corrosion control regimen, was not grossly negligent. As the USEPA stated in its November 3, 2015 memorandum, the Lead and Copper Rule was not clear with respect to the use of corrosion control, so the EPA clarified it “prospectively” (Exhibit 1, p. 1). As the EPA has acknowledged this ambiguity in November 2015, the actions or inactions of the MDEQ Employee Defendants with respect to corrosion control in Flint 18 months or more before the clarification was issued can scarcely be viewed as “so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Finally, due to the remarkable lack of specificity, the Court cannot find that the allegations regarding post-water switch reactions and representations by the MDEQ Employee Defendants constitutes gross negligence. Plaintiffs have failed to allege any specific statement or affirmative action by any one Defendant that amounted to gross negligence. The closest they get is the reference in paragraph 139 of the Complaint (Pg. ID 65) that Mr. Busch falsely reported to the USEPA that Flint had enacted an Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1052 Page 51 of 65 38 optimized corrosion control plan. Mr. Busch’s actual e-mail to the EPA, Exhibit 2, is symptomatic of the problems with the Complaint: • The e-mail sent in February 2015, almost a year after Flint changed its water source in April of 2014. Under Plaintiffs’ theory of lead’s immediate toxicity, Plaintiffs were already damaged. (Compl. ¶11-64, Pg. ID 30-44). Even if this statement amounted to gross negligence, it was not the proximate cause of the Plaintiffs’ alleged damages. • Plaintiffs never claim they saw, heard or relied upon this e-mail. The e- mail did not cause them any damages. • Busch was accurate and honest with USEPA, reporting that Flint had only 2 of 100 samples over the lead Action Level of 15 ppb, and that its 90th percentile reading was 6 ppb. • The e-mail does not indicate that Busch was grossly negligent, i.e. that he simply did not care about the safety or welfare of those in his charge. For the reasons stated above, the Court should dismiss Count II of the Plaintiffs’ Complaint. C. The Plaintiffs Have Failed to Allege that The MDEQ Employees Alleged Gross Negligence Was the Proximate Cause of the Plaintiffs’ Injuries and Damages. MCL 691.1407(2)(c) requires the Plaintiffs to allege that the MDEQ Employee Defendants’ conduct is “the proximate cause of the injury or damage.” A governmental employee’s allegedly grossly negligent conduct is “the proximate cause of an injury” only if that conduct is “the one most immediate, efficient and direct cause of the injury or damage.” Robinson v. Detroit, 462 Mich. 439, 462; 613 N.W.2d 307 (2000). The Court in Robinson, supra held that police officers in pursuit of a fleeing vehicle which crashed into another vehicle were not “the proximate Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1053 Page 52 of 65 39 cause” of the passengers’ injuries, but instead found that “the one most immediate, efficient and direct cause of the plaintiffs’ injuries was the reckless conduct of the drivers of the fleeing vehicles.” Robinson, 462 Mich. at 462. Likewise, the Court in Beals v. Michigan, 497 Mich. 363, 373; 871 N.W.2d 5 (2015) found that a life guard’s failure to intervene in a person’s drowning could not “… reasonably be found to be ‘the one most immediate, efficient and direct cause’ of (the drowning victim’s) death.” The record in Beals showed that the person had voluntarily entered the swimming pool and had voluntarily dove under the surface without re-emerging. The court in Beals rejected the plaintiff’s allegation that the lifeguard’s inattentiveness had prevented the lifeguard from attempting a timely rescue, finding that it was “readily apparent that the far more ‘immediate, efficient and direct cause’…of the death was…that which caused him to remain submerged in the deep end of the pool without resurfacing.” 497 Mich. at 373. Although the Court observed that the lifeguard’s “…failure to intervene may be counted among the myriad reasons that Beals did not survive this occurrence, it certainly was not ‘the proximate cause’ of his death” as MCL 691.1407(2)(c) requires. Beals, supra, 497 Mich. at 373-374. The Plaintiffs’ Complaint fails to allege that the MDEQ Employee Defendants’ alleged gross negligence is “the” proximate cause of the Plaintiffs’ alleged injuries. Instead, the Plaintiffs’ Complaint claims that the Defendants’ Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1054 Page 53 of 65 40 alleged gross negligence (and other acts) was “a” proximate cause or that the alleged gross negligence and other acts “proximately caused” the Plaintiffs’ injuries (Compl. ¶¶214, 221 and 225, Pg. ID 81-83 and Compl. ¶¶194, 196, 198, 200 and 203, Pg. ID 77-79, respectively). The Plaintiffs’ gross negligence claim fails to allege that the MDEQ Employee Defendants’ conduct - to the extent Plaintiffs have alleged any conduct by an individual MDEQ Employee Defendant at all - is “the one most immediate, efficient and direct cause” of the Plaintiffs’ claimed injuries or damages. This means that the Plaintiffs have failed to state a claim for gross negligence pursuant MCL 691.1407(2)(c). V. THE PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR CONCERT OF ACTION/CONSPIRACY TO COMMIT TORTIOUS INTERFERENCE OF CONTRACT UPON WHICH RELIEF CAN BE GRANTED (COUNT V). A. Plaintiffs Cannot Maintain a Conspiracy Claim Because the Underlying Tortious Interference Claim Was Not Alleged Against MDEQ Employee Defendants. “An allegation of conspiracy, standing alone, is not actionable.” Magid v Oak Park Racquet Club Assocs, 84 Mich. App. 522, 529; 269 N.W.2d 661 (1978). A plaintiff cannot maintain a conspiracy claim without establishing an underlying tortious act; if the underlying tort claim fails, so does the conspiracy claim. Cleary Trust v Edward-Marlah Muzyl Trust, 262 Mich. App. 485, 507; 686 N.W.2d 770 (2004); Appalachian Railcar Servs. v. Boatright Enters., 602 F. Supp. 2d 829, 894 (W.D. Mich 2008) (dismissing conspiracy claim to extent underlying tort contract Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1055 Page 54 of 65 41 claims failed to state a claim, including tortious interference). In other words, the mere agreement to commit an unlawful act is not actionable; a civil conspiracy action is one for damages arising out of the acts committed pursuant to the conspiracy. Fenestra Inc. v Gulf American Land Corp, 377 Mich. 565, 593–594; 141 N.W.2d 36 (1966) (“the foundation of the action is the damage and not the conspiracy”). Here, Plaintiffs have stipulated that their Complaint does not allege a tortious interference with contract claim against the MDEQ Employee Defendants. (ECF No. 21, Pg. ID 560-561). Failure to state a tortious interference with contract claim against the MDEQ Employee Defendants is fatal to Plaintiffs’ conspiracy claim. Claiming that the MDEQ Employee Defendants purportedly agreed with other Defendants to commit an unlawful act, but did not in fact commit a tortious act, is not actionable. Since Plaintiffs are not claiming that MDEQ Employee Defendants committed any acts pursuant to the alleged conspiracy that gave rise to Plaintiffs’ damages, namely tortious interference with Plaintiffs’ contract, the Court must dismiss this claim. B. Plaintiffs Have Otherwise Failed to State a Claim for Conspiracy. Even if this Court were to determine that Plaintiffs’ Complaint sufficiently alleges a claim for conspiracy to tortiously interfere with a contract, the Court should dismiss Plaintiffs’ conspiracy claim. A civil conspiracy is “an agreement, or preconceived plan, to do an unlawful act.” Bahr v Miller Bros Creamery, 365 Mich Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1056 Page 55 of 65 42 415, 427; 112 NW2d 463 (1961). To state a conspiracy claim, the Plaintiffs must allege: (1) a concerted action (2) by a combination of two or more persons (3) to accomplish a criminal or unlawful purpose or a lawful purpose by criminal or unlawful means, (4) causing damage to the plaintiff. Mays v Three Rivers Rubber Corp, 135 Mich. App. 42, 48; 352 N.W.2d 339 (1984). Plaintiffs provide bare allegations presumably asserting two theories of conspiracy: that one or more Defendants conspired to tortiously interfere with Plaintiffs’ contract by switching to the Flint River (Compl. ¶219, Pg. ID 82), and that one or more Defendants conspired to conceal the extent of the alleged damage caused by switching Flint’s primary water source to the Flint River (Compl. ¶220, Pg. ID 82). With regard to Plaintiffs’ first conspiracy theory, Plaintiffs’ Complaint contains no allegations of any affirmative act by an MDEQ Employee Defendant to conspire with others specifically to accomplish a criminal or unlawful purpose, namely switching Flint’s primary water source to the Flint River in order to intentionally and improperly interfere with Plaintiffs’ alleged contract with the City of Flint. Plaintiffs do not claim that the MDEQ Employee Defendants tortiously interfered with Plaintiffs’ contract. There are no allegations of concerted actions taken by MDEQ Employee Defendants to intentionally interfere with Plaintiffs’ contract beyond Plaintiffs’ formulaic recitation that all Defendants “acted in Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1057 Page 56 of 65 43 concert/conspired with one another.” (Compl. ¶219, Pg. ID 82). Plaintiffs similarly fail to allege any facts supporting that their damages were caused by the MDEQ Employee Defendants’ conspiring with others. Plaintiffs themselves identify Defendant Emergency Manager Earley as making the decision to switch to the Flint River, which “unilaterally and purposefully” interfered with Plaintiffs’ asserted contract, rather than any alleged action by any of these MDEQ Employee Defendants. (Compl. ¶¶66, 112; Pg. ID 45, 60). Plaintiffs’ second conspiracy theory similarly fails to state a viable cause of action. Once again, Plaintiffs provide no factual allegations to support this claim, but merely provide a rote recitation of a conspiracy claim’s elements. There are no allegations that any MDEQ Employee Defendant personally received complaints from Plaintiffs’ about the water quality, or that any of these Plaintiffs, rather than other citizens (Complaint ¶ 3, PageID.29), did in fact complain about the water quality, let alone that these MDEQ Employee Defendants tortiously interfered with Plaintiffs’ alleged contract. Most importantly, Plaintiffs have not alleged, and will be unable to prove, that any MDEQ Employee Defendant intentionally acted with others specifically for the unlawful purpose of intentionally and improperly interfering with Plaintiffs’ alleged contract for water with the City of Flint by concealing the extent of alleged damage caused by the Flint River in response to Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1058 Page 57 of 65 44 complaints about water quality. For the foregoing reasons, the Court should dismiss this claim. The Court should dismiss this claim, regardless of theory, because the conclusory allegations fail to put MDEQ Employee Defendants on notice of how they allegedly conspired with others, with whom and when they allegedly conspired, or what specific factual allegations exist to support the claim that the MDEQ Employee Defendants were conspiring with others for the criminal or unlawful purpose of intentionally interfering with Plaintiffs’ alleged contract with the City of Flint. VI. MICHIGAN’S SAFE DRINKING WATER ACT PREEMPTS THE PLAINTIFFS’ STATE LAW CLAIMS Before the USEPA delegated federal Safe Drinking Water Act (“SDWA”) primary enforcement responsibilities to Michigan, the state had to adopt "drinking water regulations that are no less stringent than the national primary drinking water regulations." 42 U.S.C. 1413(a)(1). To fulfill this prerequisite, Michigan adopted its own Safe Drinking Water Act that mirrors the obligations and requirements of the federal SDWA. These state regulations, as enacted to allow local enforcement of the national drinking water regulations, preempt Plaintiffs' state tort claims. A. Michigan Statutes Can Preclude Common Law Claims. Under Michigan law, state statutes can preempt common law causes of action. The Michigan Supreme Court has held that the Dramshop Act, Michigan's Uniform Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1059 Page 58 of 65 45 Commercial Code (“UCC”), and the Michigan Gaming Control and Revenue Act preclude common law claims. See, e.g., Hoerstman Gen. Contr., Inc. v. Hahn, 474 Mich. 66, 76; 711 N.W.2d 340 (2006); Millross v. Plum Hollow Golf Club, 429 Mich. 178, 183; 413 N.W.2d 17 (1987); Kraft v. Detroit Entm’t, LLC, 261 Mich. App. 534; 683 N.W.2d 200 (2004), respectively. The Michigan Court of Appeals similarly has held that the Whistleblower Protection Act precludes common law claims for retaliatory discharge. Anzaldua v. Neogen Corp., 292 Mich. App. 626, 631; 808 N.W.2d 804 (2011) (citing Dudewicz v. Norris-Schmid, Inc., 443 Mich. 68, 70, 78-79; 503 N.W.2d 645 [1993]). However, Michigan courts also have determined that common law claims which were expressly permitted or that fell outside the areas addressed by a statute were not preempted. See, e.g., Dep’t of Agriculture v. Appletree Mktg., LLC, 485 Mich. 1, 8; 779 N.W.2d 237 (2010); Dawe v. Dr. Reuven Bar-Levav. & Assoc., P.C., 485 Mich. 20, 33; 780 N.W.2d 272 (2010). Determining whether state statutes have preempted common law claims is a question of legislative intent. See, Millross, supra, 429 Mich. at 183. As a general rule” “where comprehensive legislation prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions, the Legislature will be found to have intended that the statute supersede and replace the common law dealing with the subject matter.” Id. (citing 2A Sands, Sutherland Statutory Construction (4th ed.), §50.05, pp. 440-41). Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1060 Page 59 of 65 46 If the legislative intent for exclusivity exists, a court then examines the scope of that exclusivity. The question of whether a state statute precludes common law claims is determined by whether (1) the Legislature intended for the statute to be the exclusive remedy and (2) whether the common law claims are outside the scope of that exclusion. B. The Michigan SDWA is a Comprehensive Statute Which Expressly Provides that Only the Michigan Attorney General May Bring a Civil Action. When the statutory language is clear, it will be enforced as written. Kraft, supra, 261 Mich. App. at 547. However, when the statutory language is ambiguous, Michigan courts will apply various principles to resolve the ambiguity. See, Bradley v. Saranac Bd. of Educ., 455 Mich. 285, 298; 565 N.W.2d 650 (1997). These include the principle of expressio unius exclusius alterius, or the principle that the express mention of one thing implies the exclusion of other similar things. Id. The Michigan Supreme Court used this principle when it determined that the UCC abrogated the common law because the UCC contained specific exceptions that “eliminated the possibility of their being other exceptions.” Hoerstman, supra, 474 Mich. at 74 (applying expressio unius exclusius alterius to determine that the UCC impliedly precluded the common law on accord and satisfaction). Similarly, the Michigan SDWA's inclusion of a civil cause of action by the Michigan Attorney General, but no parallel cause of action for private citizens, implies that private citizens are Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1061 Page 60 of 65 47 precluded from filing common law claims that fall within the scope of the Michigan SDWA. MCL 325.1022. The Michigan SDWA, MCL 325.1001 et seq., is the enabling state legislation which allows the State of Michigan, through the Department of Environmental Quality, to act as the primary regulatory agency under the federal SDWA. See 42 U.S.C. §300i, et seq. Among the purposes of the Michigan SDWA are “to provide for supervision and control over public water supplies . . . to provide for continuous, adequate operation of privately owned, public water supplies; to authorize the promulgation of rules to carry out the intent of the act, and to provide penalties.” 1976 P.A. 399; MCL 325.1101, et seq. The statutory language is thus clear that one of the purposes of the Michigan SDWA is to create penalties for violations of the Michigan SDWA or the regulations promulgated pursuant to that act. The Michigan SDWA constitutes “comprehensive legislation” that “prescribes in detail a course of conduct to pursue and the parties and things affected, and designates specific limitations and exceptions.” See, Millross, supra, 429 Mich. at 183. The Michigan SDWA must be at least as stringent as the federal SDWA primary drinking water requirements. 42 U.S.C. §1413. For the most part, the Michigan SDWA mirrors the federal SDWA's requirements, which these Defendants contend are ambiguous and provide inadequate protection for American citizens. However, while the federal SDWA specifically provides that it does not Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1062 Page 61 of 65 48 "restrict any right which any person (or class of persons) may have under any statute or common law," 42 U.S.C. §300j-8(e), the Michigan SDWA specifies that only the Michigan Attorney General can bring a civil action to enforce the provisions of the Michigan SDWA. MCL 325.1022. This implies that the legislature did not intend for a citizen private right of action under the Michigan SDWA, despite the legislature's ability to do so, instead opting to only explicitly allow the Michigan Attorney General to bring a civil action. Significantly, that the Legislature has explicitly provided for a private citizen cause of action in other Michigan environmental regulatory schemes is further evidence that the legislature did not intend a private citizen cause of action under Michigan's SDWA. For example, the Natural Resources and Environmental Protection Act (NREPA) specifically provides for either the Attorney General or any person to maintain a civil action when the Act is violated. MCL 324.1701, et al. In light of the federal SDWA, Michigan's NREPA, and the principle of expressio unius exclusius alterius, the absence of a private citizen cause of action under Michigan SDWA's shows the Legislature's intent to exclude a civil cause of action by any party other than the Michigan Attorney General. Plaintiffs' state common law claims that fall within the scope of the Michigan SDWA are therefore preempted. Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1063 Page 62 of 65 49 C. Plaintiffs’ Negligence and Gross Negligence Claims Are Based on Alleged Duties Within the Scope of Michigan’s SDWA. Plaintiffs’ Complaint alleges negligence and gross negligence claims against the MDEQ Employee Defendants related to the City of Flint's public water system (Compl., Count I and II, Pg. ID 76-78 and 78-79, respectively). However, these claims are based upon alleged duties which stem from requirements imposed by the federal SDWA, mirrored in the Michigan SDWA to allow for enforcement by state actors, and covered in exhaustive detail by the regulations promulgated under the Michigan SDWA.5 Any breach of the duties alleged by Plaintiffs is in actuality violations of one or more Michigan SDWA regulations. Plaintiffs’ negligence and gross negligence claims are clearly within the scope of the Michigan SDWA, and given the Michigan SDWA's comprehensive scope, are preempted. Civil actions to enforce the Michigan SDWA may only be brought by the Michigan Attorney General. MCL 325.1022. Expressio unius exclusius alterius directs that the specific inclusion of a civil cause of action in the Michigan SDWA implies the exclusion of private causes of action by other individuals, including common law causes of action, unless the common law claims are either permitted by the Michigan SDWA or fall outside the ambit of the Michigan SDWA. Neither 5 For more information, see the table provided in Brief in Support of Motion to Dismiss by Defendants Darnell Earley and Gerald Ambrose. (ECF No. 25-1, Pg. ID 591-594) Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1064 Page 63 of 65 50 of those two conditions are satisfied here. For that reason, Michigan’s SDWA preempts the Plaintiffs’ common law negligence and gross negligence claims. RELIEF REQUESTED For the reasons stated in this Brief, the MDEQ Employee Defendants request the Court to dismiss the Plaintiffs’ Complaint. Respectfully submitted, KOTZ SANGSTER WYSOCKI P.C. Dated: September 15, 2016 Attorneys for Defendant Stephen Busch By: /s/ Philip A. Grashoff, Jr. Philip A. Grashoff, Jr. (P14279) 400 Renaissance Center, Suite 3400 Detroit, MI 48243 (313) 259-8300 FRASER TREBILCOCK Attorneys for Defendant Liane Shekter Smith By: /s/ Thaddeus E. Morgan Thaddeus E. Morgan (P47394) Michael H. Perry (P 22890) 124 W. Allegan, Suite 1000 Lansing, Michigan 48933 (517) 482-5800 FOSTER, SWIFT, COLLINS & SMITH, P.C. Attorneys for Defendants Adam Rosenthal Patrick Cook and Michael Prysby By /s/ Charles E. Barbieri Charles E. Barbieri (P31793) 313 S. Washington Square Lansing, MI 48933 (517) 371-8155 Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1065 Page 64 of 65 51 CERTIFICATE OF SERVICE I hereby certify that on September 15, 2016 I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to all attorneys of records. /s/ Thaddeus E. Morgan Thaddeus E. Morgan (P47394) Case 1:16-cv-00874-GJQ-PJG ECF No. 33 filed 09/15/16 PageID.1066 Page 65 of 65 EXHIBIT 1 5:16-cv-10796-JCO-MKM Doc # 69-2 Filed 08/29/16 Pg 1 of 3 Pg ID 1699Case 1:16-cv- 0874-GJQ-PJG ECF No. 33-1 filed 09/15/16 PageID.1067 Page 1 of 3 WSG 196 Date Signed~ November 3, 2015 I I1. SEA H.S i:~vtRt~~.~ii- ~ lU. Pwxi I I lO’~ M ~V\4 V~ ~SIII~’~(~ tO\~ nI.’ 2u~u ~I %•A~i ~ NflV 03 2015 M t~M{) RAN tRIM suluEcrr: l.ead ~nd Copper Rule Reu rnents R~r Optimal Corrosion Control Treatment tbr Large Dunking W itu Systems — 1 / P~.tu C Gre~~itt Dir~.~tor ~‘ Oflice ot Ground ~Vater and Drinking Waterj 1 ‘1 . FPA Regional Water t)ivision Directors, I gions 1J~ i’his i emorandum addresses certain concerns raised about the applicatkm of the 991 Lead and Copper RuI~. speci liatily the requirements pertaining to maintenance of optimal corrosion control treatnienL in situations in which a large water system ceases to purchase treined water and switches to a new drinking water source. These concerns have been raised roost rceentiy in regard to the drinking water system in Fliin, Michigan. where the water system was disconnected throt the l)etroit Water and Sewerage Department. which provided corrosion control treatment 11r Lake I luron source waters. and instead began distributing water from the flint River. This type nisituation rarely arises and the language of the ICR does not specifically discuss such circumstances. After reviewing the rule with our 0111cc of General Counsel, it appears that there are dIl11ring possible interpretations oi’th~ LCR with respect to how the rule’s optimal corrosion control treatment proceLturcs apply to this situation, which may have led to some uncertainty with respect to the l”lint waler system. This memorandum clarifies how the IX’R applies to this situation and eliminates the uncertainty for water systems and primacy agencies :tl~g may Ibce these circumstances in the flit ore. It is important br large systems and primacy agencies1 to take the steps necessary to ensure that appropriate corrosion control treatment is maintained at all times, thus ensuring that public health is protected. This memorandum Ibeuses on those steps and clarifies, on a prospective basis. how EPA interprets the l~CR corrosion control requirenients and how primacy agencies should apply these requirements to large public water systems before, during and after making a significant change in source water, ineltiditig switching from purchased water to ii new source, Under the I.CR, ~dl large systems (those serving nion~ than 50,000 persons). whether purchasing water or tint. must have’ ~,minpleted a series of steps to either optimize the corrosion control treatment or he deemed to have optimal corrosion control treatment ~(.)CC,”f) by 1998. 30 (‘l~R 141 ~8 I, Key steps lbr The term “primacy agency” refers to the State, tribe or U.S. Lnvironnicnlal Protection Agency regional ofliec having jurisdiction over, and primary etil’orcetnein responsibility for, a given public water system. Case 1:16-cv-00874-GJQ-PJG ECF No. 33-1 filed 09/15/16 PageID.1068 Page 2 of 3 plinizing corroston coot ml inchide nittitorhig, corr sian control studies. installation of Ircalt neni. ioik~wup sanipltog and specification by the primacy agency of water quality parameters (WQPsI fir monitoring corrosion control. The LCl~. requires any large system that h~ts met the OU( 1 requirements hrough the insitilbulon of corrosion control reatuwni to continue operating and maintaining the treatment and to continue meelinu the \VQPs established 1w the primacy agency. 4(1 (‘ER 141.81(b) and 131 ,$2tt), Systems deemed to have OCC”L without the installation ol’ corrosion control treatment are not suhjeet in tltis requirement. I lowever. they are required to notify the pritmtcyagcncy in writing of any upcotning changes in treatment or source and request that the primacy agency modify ~ts determination of the OC(1 and WQPs applicable to the system. The primacy agency must then review and approve the change and designate ()CCI and WQPs prior to its implementation by the system. 141 .81 ~h11 3). Similarly. systems subject Lii reduced niottituring or monitoring waivers must nnLiI~ the primacy agency at’ any upcoming changes in treatment or source and the primacy agency must subsequently re~ kw and nppro~e it. EP;\ recommends that systems that are not subject to a notihemion reqtnremcm also ntitift the primacy agency prior hi the addition at’ a new source or treatment and request the primacy agency to modify its determination of the optimal corrosion control and WQPs applicable to the system. l)oc to the unique characteristics oIettch PWS (e.g.. source water. esisting treatment processes. distribution system materials) it is critical that public water systems. in ciu~junetinn with their primacy aceneics and, it’ necessary. outs ide technical cunstdtano.evaluate and address potential impacts resulting from treatment andtor source water changes. It is also critical for public water systems to conduct ongoing monitoring to ensure compliance with OC’QT prior to. during and arter a source or treatment change. ‘l’he rearrangement of a system’s esisting conliguration may trigger the need lur occ~ adjustnmcnts and establishment olappropriate WQPs. Primacy agencies should work with systems that plan to disconnect frotn a supplier that had installed corrosion control treatment to determine the O(’(”l’ for the new suttrce and establish WQPS fiir that treatment instead of using the O(’C’l’ and WQPs established lhr the previous source. Ibis will allow a system that ceases to purchase treated water to stay in cotiiplianee t~ ith any applicable requiretnents pertaining to ()CC’l’ nod ensure protection of pm.tb)ic health during and at)er the change in source. hPA has developed a guidance nutnual specifically t~ettsittg on evaluation at’ corrosion control treatment options and oplitni~atiotl at’ fttll’scale treatment to assist water systems and primacy agencies with these eli’orts. hPA is currently preparing an updated version of the manual, which we anticipate will be released in February ~0l 0. The key to identifying and mitigating potential problems is to ensure el1’e~tive collaboration between the public water system and the primacy agency. Uorraston control trcattrtent can conic ifl ninny forms. Fur this reason. it is important to conduct a systemu~wide asscssnlcmrt prior to any source water and/or treatment modifications ~ttid in idetitil~’ esising or anticipated water quality. treattncnt or operational issues that ituty interfere with or limit the effectivetiess of corrosion control treatment optinlizat ion or rv~~ o~itmt ization. II’ von have itdtlitionnl questions or concerns, please cotitact tiw or have yoitr stalicontuet Maria I (‘arho. Chiel’of the Protection L~ranelm, in the Office al’Orotmnd Water and h)rittkitmg \Vater. at lopez’ earbo.nmrianccpa.gcw. IS, flnvirotimnetital Protection Agency. I,eadasicl ( ‘tipper Rith’ (iaithmce tlunuul, I ‘tmhmn’ II: t’’arrusion ( ‘wuro! 7i’c’az~ueui, Ol’tiee of Water. hPA SI l..t~’92—t)02. ~ Available at: hap:~~itt)Io~ )‘~ t4ist. Case 1:16-cv-00874-GJQ-PJG ECF No. 33-1 filed 09/15/16 PageID.1069 Page 3 of 3 Exhibit 2 Case 1:16-cv-00874-GJQ-PJG ECF No. 33-2 filed 09/15/16 PageID.1070 Page 1 of 2 From: Busch, Stephen (OEQ) Sent Friday, February 27, 2015 lAB PM Crooks, )ennifer,Deltorat Miguel Cc: Rosenthal, Adam (DEQBP0y. Thomas~Porter, Andrea;Prysby, Mike (DEQ):Richard Bentie P1. IBENZIER@michigan.govkShekter Smith, Liane ~DEQJ (SHEKTERL@niichigan.gov) Subject RE: HIGH LEAD: FLINT Water testing Results Miguel and Jennifer, Thank you for this information, we will take it under consideration. The City of flint: Has a gt percentile lead level of 6.0 ppb based on 100 samples collected in its most recent monitoring period of 7/1/2014 — 12131/2014, with 2 samples (23 & 37 ppb) over the AL. Has a 90<~ percentile copper level of 210 pph based on 100 samples collected In its most recent monitoring period of 7)1/2014 — 12/31/2014. with no samples over the Cu AL, Has an Ootinazed Corrosion Control Program • Conducts quarterly Water Quality Pararrerer monitoring at 23 cites and has not had any unusual results. * Has never had a 90~< percentile lead At. oxceedance Continues to meet all applicable plant tap standards and treatment technique requirements at its WTP Has developed and implomented an Operational Evaluation of its treatment and distribution systems, and continues to adjust and update this OS based on updated quarterly results My understanding front Ben Grumbles and the LCR Short Term Revisions is that “EPA regulations require water systems to develop a targeted sampling pool, focused on those sites with the greatest risk of lead leaching. All compliance samples used to determine the 90n< percentile must come from that sampling pooi.” (40 CFR 14L80(c)tt)). 56 Fed Re.g. 26516 (June, 7, 1991), (4OCFR 141S0(a((1i(v), and 40 CFR t41,90(h)(2)j, Our ofPce continues to work with our community water systems to follow there and ali other roquirornents of the currec it load and copper regulations. 212 Browning. the site in question, is not part of the City’s established sample site pool. The residence consists of PVC plumbing materials, and has an Iron pre~lilter at the service connection. Re.gardrr:g TI’HM, the ntost recent quarter monitoring from February 2015 was issued today by the lab. While 2 ol the B OBP contpliaoca sites continue to have an l,RAA that exceeds the standard, quarterly results