Walters et al v. Flint et al
Filing
318
OPINION AND ORDER denying 300 Motion to Dismiss for Lack of Subject Matter Jurisdiction. Signed by District Judge Judith E. Levy. (WBar)
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12647
Page 1 of 87
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re Flint Water Cases.
________________________________/
Judith E. Levy
United States District Judge
This Order Relates To:
Walters v. Flint
Case No. 17-10164
________________________________/
OPINION AND ORDER DENYING DEFENDANT’S MOTION TO
DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
[300]
This is one of the many cases that are collectively referred to as the
Flint Water Cases. The Flint Water Case defendants are a combination
of private and public individuals and entities who allegedly set in motion
a chain of events that led to bacteria and lead leaching into the City of
Flint’s drinking water. Flint Water Case plaintiffs claim that these
defendants subsequently concealed, ignored, or downplayed the risks
that arose from their conduct, causing the plaintiffs serious harm. The
plaintiffs contend that the impact of what has since been called the Flint
Water Crisis is still with them and continues to cause them problems.
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12648
Page 2 of 87
Before the Court is Defendant United States of America’s motion to
dismiss this case for lack of subject matter jurisdiction. The Court has
previously adjudicated several other motions to dismiss in the Flint
Water Cases. First, there was Guertin v. Michigan, No. 16-cv-12412,
involving two individual plaintiffs and many of the public and private
Flint Water Case defendants. Next, there was Carthan v. Snyder, No. 16cv-10444, a consolidated class action that also involved similar
defendants and claims as in Guertin. Most recently were Walters v. City
of Flint, No. 17-cv-10164, Sirls v. Michigan, No. 17-cv-10342, Brown v.
Snyder, 18-cv-10726, and Marble v. Snyder, No. 17-cv-12942, which
involved individual plaintiffs operating under one master complaint.
In this case, Flint residents are bringing a lawsuit against the
United States Environmental Protection Agency (“EPA”) under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2671–80, alleging
that the EPA was negligent in its response to the Flint Water Crisis,
which resulted in injuries to Plaintiffs. There are other Flint Water FTCA
cases assigned to the Honorable Linda V. Parker and consolidated in
Burgess v. United States, No. 17-cv-11218. Meeks v. United States, No.
19-cv-13359, however, was assigned to this Court, and because of the
2
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12649
Page 3 of 87
common issues of fact and the overlap between Plaintiffs in Meeks and in
this Court’s other Flint Water Cases, the Court consolidated it with
Walters v. Flint, No. 17-cv-10164. (ECF No. 294.) For the reasons set forth
below, the Court denies Defendants’ motion to dismiss the complaint.
Table of Contents
I. Facts ..................................................................................................... 4
II. Federal Tort Claims Act .................................................................... 16
III. Standard of Review ............................................................................ 18
IV. Analysis .............................................................................................. 23
A.
i.
Private Liability Requirement .................................................. 23
An Undertaking to Render Services to Another ....................... 25
ii. Whether the Government was Negligent ................................. 29
iii. Section 324A(a) Increased Risk of Harm .................................. 32
iv. Section 324A(b) Undertaking to Perform a Duty Owed to a
Third Person .............................................................................. 36
v.
Section 324A(c) Reliance ........................................................... 40
vi. Conclusion .................................................................................. 44
B.
i.
Discretionary Function Exception............................................. 45
Prong One: Was the Action Discretionary? ............................... 49
ii. Prong Two: Whether the Challenged Actions were Grounded in
the Policy of the Regulatory Regime ......................................... 67
iii. Conclusion .................................................................................. 81
C.
Misrepresentation Exception .................................................... 82
V. Conclusion .......................................................................................... 86
3
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
I.
PageID.12650
Page 4 of 87
Facts
The following factual background is excerpted from Judge Parker’s
opinion in Burgess v. United States, 375 F. Supp. 3d 796, 803–09 (E.D.
Mich. 2019). All of the evidence in Burgess is adopted here and therefore
constitutes the record of this case. Neither party disputes the facts as set
forth in Burgess. See United States’ Motion to Dismiss, (ECF No. 300,
PageID.8537) (Judge Parker’s “factual findings about the Flint Water
Crisis, differing regulatory roles played by the City of Flint, Michigan
Department of Environmental Quality (MDEQ), and EPA, are consistent
with the jurisdictional record submitted by the parties and are not
disputed by the United States.”); Plaintiffs’ Response Brief (ECF No. 305,
PageID.9894) (agreeing that the evidence in this case is “virtually
identical” to Burgess). The factual background below is copied from
Burgess, and the internal citations are accordingly from Case No. 17-cv11218.
The SDWA [Safe Drinking Water Act (“SDWA”)] was
enacted in 1974 “to assure that water supply systems serving
the public meet minimum national standards for protection of
public health.” H.R. Rep. No. 93-1185 (1974), reprinted in
1974 U.S.C.C.A.N. 6454, 6454. The statute authorizes the
EPA “to establish Federal standards for protection from all
harmful contaminants[] … applicable to all public water
4
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12651
Page 5 of 87
systems[.]” Id. at 6454-55. It also “establish[es] a joint
Federal-State system for assuring compliance with th[o]se
standards and for protecting underground sources of drinking
water. Id. at 6455.
States adopting, among other things, drinking water
regulations that are no less stringent than the national
primary drinking water regulations are eligible to obtain
primary enforcement authority [primacy] over their public
water systems. 42 U.S.C. § 300g-2(a)(1). Michigan has
obtained primacy and the Michigan Department of
Environmental Quality (“MDEQ”) thus has primary
enforcement authority with respect to the State’s water
systems. See Mays v. City of Flint, 871 F.3d 437, 446 (6th Cir.
2017). As the Sixth Circuit has described it, “the MDEQ-EPA
relationship is a model of cooperative federalism ….” Id. at
447.
Nevertheless, the SDWA reserves the EPA’s oversight
and primacy States must periodically submit compliance
reports to the EPA for that purpose. 42 U.S.C. §§ 300g-3, 300i;
see also 40 C.F.R. §§ 141.82(i), 141.83(b)(7), 141.90, 142.15,
142.19, 142.30 [. . .]
The EPA has ten regional offices, each of which is
responsible for executing EPA programs within several States
and territories. “Region 5” serves six States, including
Michigan, and a number of tribes. Congress has granted the
EPA Administrator the authority to “delegate any of his
functions under [the statute] (other than prescribing
regulations) to any officer or employee of the Agency.” 42
U.S.C. § 300j-9. The EPA Administrator has delegated his
authority under Sections 1414 and 1431 of the SDWA, 42
U.S.C. §§ 300g-3 and 300i, to the Regional Administrators and
the Assistant Administrator for Enforcement and Compliance
5
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12652
Page 6 of 87
Assurance. (Def’s Mot. Exs. 66-68, ECF Nos. 41-7, 41-8, 41-9.)
[. . .]
Flint owns and operates a public water system that
provides drinking water to its nearly 100,000 citizens. Before
April 2014, Flint purchased finished drinking water from the
DWSD [Detroit Water and Sewage Department]. DWSD drew
its water from Lake Huron and treated the water to control
potential contaminants, including copper and lead levels.
In approximately late April 2014, Flint switched its
water source from DWSD to the Flint River. The use of the
Flint River as a water source was intended to be temporary,
as Flint planned to connect to the Karegnondi Authority
pipeline in 2016, which also draws its water from Lake Huron.
(See Def.’s Mot. Ex. 43 at 1, ECF No. 40-3 at Pg ID 1349.)
MDEQ and Flint did not, and were not required to, notify the
EPA of the changing water sources for Flint. (Def.’s Mot. Ex.
C at 37, ECF No. 37-3 at Pg ID 862.) The EPA does not
approve such a switch in a primacy State. (Id. at 35, Pg ID
862; Ex. 15 at 2.) MDEQ approved Flint’s water source
change, but did not require Flint to begin corrosion control
prior to the switch. (Ex. 2 at 1, ECF No. 38-1; Ex. 3 at 2, ECF
No. 38-2 at Pg ID 1142.) MDEQ interpreted the Lead and
Copper Rule (“LCR”) as allowing Flint to complete two
consecutive six-month rounds of sampling prior to
determining what, if any corrosion control treatment was
needed for the Flint River water. (Id. Ex. 20, ECF No. 39-3 at
Pg ID 1206-07; Ex. 22 at 1-3, ECF No. 39-5 at Pg ID 12091211.) Its wrongful and damaging interpretation was later
admitted by MDEQ Director Dan Wyant.
The Flint River provided inconsistent water quality
because of elevated levels of organic matter. (Id. Ex. 35 at 1,
ECF No. 39-18 at Pg ID 1313.) By August 2014, elevated
levels of fecal coliform and E. coli bacteria were detected in
6
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12653
Page 7 of 87
the water and the MDEQ issued a “boil water advisory”
instructing Flint residents to not drink the water. (Def.’s Mot.
Ex. E at 66, ECF No. 37-5 at Pg ID 975; Pls.’ Resp. Ex. 70 at
7, ECF No. 53-27 at Pg ID 2114.) A second E. coli exceedance
occurred on September 5, 2014. (Id.) The City’s use of chlorine
to address bacteria exceedances led to another problem—high
levels of total trihalomethane (“TTHM”), which poses health
risks to consumers. (Pls.’ Resp. Ex. 3, ECF No. 53-4 at Pg ID
1931; Ex. 70 at 7, ECF No. 53-27 at Pg ID 2114.)
Flint’s residents immediately noticed the change in the
quality of the water when the City switched its water source
to the Flint River. Jennifer Crooks, Region 5’s Michigan
Program Manager for the Drinking Water Program, who was
responsible for reviewing and responding to complaints from
Michigan citizens on the agency’s behalf, testified in this
matter that she had never received as many citizen
complaints since she began working for the EPA in 1987 than
she did after the Flint water switch. (Def.’s Mot. Ex. E at 29,
30-32, ECF No. 37-5 at Pg ID 965-66.) When Region 5 received
citizen complaints from Michigan residents, employees would
discuss the issues with technical contacts, check for violations
in the various databases, and contact the State person
responsible for the water system and discuss the complaint.
(Id. Ex. E at 24, 49, ECF No. 37-5 at Pg ID 964, 970; Ex. F at
33-34, ECF No. 37-6 at Pg ID 1018-19.) After Region 5’s
employees
conducted
background
research
and
communicated with the State, they responded to citizens
through emails, phone calls, and written letters. (Id. Ex. E at
36-37; see also id. Exs. 15, 16, 18.)
In its communications with Flint residents, the EPA
indicated that MDEQ was working closely with the City “to
ensure that the citizens of Flint are provided drinking water
that meets health standards.” (See, e.g., id. Ex. 15 at 1, ECF
7
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12654
Page 8 of 87
No. 58-14 at Pg ID 1184.) The EPA informed Flint’s residents
that “[t]he most recent laboratory analyses obtained from
MDEQ of the City of Flint’s drinking water indicate that
almost all regulated contaminants meet State and Federal
health standards, as required under the Federal and
Michigan Safe Drinking Water Acts.” (Id.) TTHMs pose a
health risk for some sub-populations, such as the immunecompromised and pregnant women. (See id. Ex. 14 at Pg ID
1183.) Despite being aware of those risks (see id.), the EPA
did not convey those risks in at least some of its
communications with Flint residents. (See id. Exs. 15, 18.)
In early 2015, Flint citizen LeeAnn Walters contacted
the EPA after receiving the test results of drinking water
samples the City of Flint had collected from her home. (Def.’s
Mot. Ex. 3 at 2-3, ECF No. 38-2 at Pg ID 1142-43.) Those
results showed highly elevated lead and iron levels.1 (Id.) Ms.
Crooks from Region 5 sent an email to MDEQ the day after
receiving the test results, documenting her concerns and
requesting assistance in dealing with the high lead levels in
the Walters’ home. (Id. Ex. E at 69, ECF No. 37-5 at Pg ID
975.) MDEQ indicated in response that the lead was coming
from the home’s plumbing, although Ms. Walters had
indicated that all of the plumbing was plastic. (Id. Ex. 3 at 3,
ECF No. 38-2 at Pg ID 1143.)
Ms. Crooks and Miguel Del Toral, Region 5’s
Regulations Manager for the Groundwater and Drinking
Water Branch, were in subsequent communication with
MDEQ and the City concerning Ms. Walters’ situation and
whether there was a more widespread lead issue. (See Pls.’
The LCR results from the Walters’ home showed a level of 104 ppb for lead.
(Pls.’ Resp. Ex. 1 at 5, ECF No. 53-2 at Pg ID 1924). The regulatory limit is 15 ppb.
(Id.)
1
8
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12655
Page 9 of 87
Resp. Ex. 1, ECF No. 53-2.) In a February 26, 2015 email to
MDEQ officials, Ms. Crooks stated that (1) Flint must have
Optimized Corrosion Control Treatment (“OCCT”), (2) the test
results for the Walters’ home must “be included in with
compliance calculation of the 90th percentile”, and (3) the City
cannot flush the system in advance of taking compliance
samples. (Id. at 3-4, Pg ID 1921-22.) Mr. Del Toral, who had
been copied on Ms. Crooks’ email, sent a follow-up email to
MDEQ on February 27, 2015, explaining his concerns about
the lead situation and Flint’s testing protocols. (Id. at 2-3, Pg
ID 1920-21.) Mr. Del Toral conveyed that pre-flushing the tap
before collecting testing samples “biases the results low by
eliminating the highest lead values” and “provides false
assurance to residents about the true lead levels in the water.”
(Id.) Mr. Del Toral suggested that MDEQ contact Region 5’s
“resident expert”, Mike Schock, for help with compliance. (Id.)
Ms. Crooks forwarded Mr. Schock’s contact information to
MDEQ the same day. (Id.)
On February 27, 2015, Stephen Busch from the MDEQ
responded to Ms. Crooks’ and Mr. Del Toral’s emails,
thanking them for their information and indicating: “[W]e will
take it under consideration.” (Id. at 1, Pg ID 1919.) Mr. Busch
represented in the same email, among other things, that Flint
“[h]as an Optimized Corrosion Control Program”, “[c]onducts
quarterly Water Quality Parameter monitoring at 25 sites
and has not had any unusual results[,]” and “[h]as never had
a 90th percentile lead AL exceedance[.]” (Id.)
Region 5 visited the Walters’ home on April 27 and May
6, 2015, to inspect the plumbing and conduct additional
testing. (Def.’s Mot. Ex. 3 at 3, ECF No. 38-2 at Pg ID 1143.)
Finding that the interior plumbing was primarily plastic, the
EPA concluded that it was not the source of the high lead
levels found in the water at the residence. (Id.) Shockingly, as
9
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12656
Page 10 of 87
Mr. Del Toral noted in an email to colleagues within Region
5, local officials were telling Flint residents that the source of
the high lead was the home’s internal plumbing. (Pls.’ Resp.
Ex. 2 at 5, ECF No. 53-3 at Pg ID 1929.)
During EPA’s May 6 trip to the Walters’ home, the
service line to the residence was replaced and the EPA sent
three portions of the extracted line for testing, which
confirmed that a portion of the line was made of galvanized
iron pipe. (Id.) The EPA’s inspection of the remaining portion
confirmed that the service line from the water main to the
external shut-off valve was lead. (Id.) Region 5 collected water
samples from other Flint residents’ homes, which also showed
noncompliant lead levels. (Id. at 4, Pg ID 1144.)
Meanwhile, on April 23, 2015, Mr. Del Toral sent an
email to MDEQ asking: “What’s Flint doing now (post Detroit)
for corrosion control treatment?” (Pls.’ Resp. Ex. 2 at 4, ECF
No. 53-3 at Pg ID 1928.) MDEQ responded the following day,
indicating that Flint is not practicing CCT and that the
results of testing for two six-month periods indicated that no
treatment was needed. (Id. at 3, Pg ID 1927.) Mr. Del Toral
emailed MDEQ on April 25, 2015, expressing his concern
regarding the lack of CCT following the water source switch
considering the known corrosivity of the Flint River and the
City’s extensive lead service lines. (Id. at 1, Pg ID 1925.) Mr.
Del Toral further reemphasized that the City’s preflushing
ahead of compliance sampling may be distorting test results.
(Id.) Mr. Del Toral expressed that “[g]iven the very high lead
levels found at one home and the pre-flushing happening at
Flint . . . the whole town may have much higher lead levels
than the compliance results indicated ….” (Id.)
In May and June 2015, EPA Region 5 staff continued to
express concern to MDEQ and the City about increasing
concentrations of lead in Flint’s drinking water and the City’s
10
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12657
Page 11 of 87
lack of corrosion control treatment and offered the EPA’s
expertise to move forward and rectify the water quality
problems. (Def.’s Mot. Ex. 32 at 3, ECF No. 39-15 at Pg ID
1294; Ex. 3 at 4, ECF No. 38-2 at Pg ID 1144; Pls.’ Resp. Ex.
6 at 1, ECF No. 53-7 at Pg ID 1945.) During this period, Mr.
Del Toral prepared the EPA’s interim report on high lead
levels in Flint’s water system, which was circulated to his
colleagues. In the report, Mr. Del Toral indicated that Flint
was not including tests from homes showing high lead levels
in its compliance sampling pool. (Pls.’ Resp. Ex. 3 at 5, ECF
No. 53-4 at Pg ID 1935.) He also expressed concern that this
omission, as well as Flint’s sampling procedures, conceal a
more wide-spread problem with high lead levels throughout
the City’s water supply. (Id. at 2, Pg ID 1932.) As Mr. Del
Toral further explained in an email to his colleagues:
The widespread high lead is my judgment based on a
couple of decades of working with lead issues and I stand
by it despite the limited data set from Flint. A simple
application of scientific principles to the circumstances
in Flint along with the limited data are enough to know
that there is a problem there. They have no corrosion
control treatment in place for over a year now and they
have lead service lines. It’s just basic chemistry on lead
solubility. You will have high lead leaching into the
water where you are doing nothing to mitigate that. We
don’t need to drop a bowling ball off every building in
every town to know that it will fall to the ground in all
of these places. The fact that their sampling is designed
not to capture lead (everything is fine) does not negate
our scientific understanding of what is going on. The
only reason we don’t have more data is because the City
of Flint is flushing away the evidence before measuring
it. …
11
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12658
Page 12 of 87
(Id., Ex. 5 at 3, ECF No. 53-6 at Pg ID 1942.)
Tinka Hyde, the Director of the Water Division for
Region 5, convened a formal conference call with MDEQ
management on July 21, 2015, to discuss the status of Flint’s
lead sampling results (including MDEQ’s position on preflushing) and MDEQ’s interpretation of the LCR, which
conflicted with Region 5’s interpretation. (Def.’s Mot. Ex. 20,
ECF No. 39-3 at Pg ID 1206-07.) The EPA interpreted the rule
as requiring a public water system to use optimal corrosion
control treatment upon switching water sources. (See id. Ex C
at 41-42, ECF No. 37-3 at Pg ID 863-64; Ex. 11 at 1-2, ECF
No. 38-10 at Pg ID 1169-70.) MDEQ decided to treat Flint’s
change in water sources as a “new source” which would
require OCCT only after monitoring reflects the need for
treatment. (See id. Ex. 20 at 1, ECF No. 39-3 at Pg ID 1206.)
In preparation for the July 21, 2015 conference call
between EPA and MDEQ, EPA drafted a “Briefing Paper”
which reflects what EPA already knew about Flint’s water
crisis and state and local officials’ response (or lack thereof) to
that crisis. (See Pls.’ Resp. Exs. 11, 22, ECF Nos. 53-8, 53-16.)
This included the fact that Michigan was not requiring
corrosion control in Flint. (Id.) It further reflects EPA’s
knowledge that Flint was not including in its testing the
citizen requested samples where high-lead levels were
detected—despite EPA’s direction that they needed to be
included—and EPA’s knowledge that Flint was “preflushing”
lines before sampling—again, despite EPA’s explanation of
why this distorts testing. (Id.) These documents also reflects
EPA[’]s expectation that proper sampling would show high
lead levels in the water supplied to Flint residents and a need
for corrosion control. (Id.)
During the July 21, 2015 conference call, MDEQ
requested an opinion from EPA headquarters to resolve the
12
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12659
Page 13 of 87
discrepancy in the LCR interpretation.2 (Id.; see also Ex. C at
42, ECF No. 37-3 at Pg ID 864.) MDEQ nevertheless
communicated a willingness “to initiate discussion with Flint
sooner rather than later on corrosion control.” (Id., Ex. 20 at
1, ECF No. 39-3 at Pg ID 1206.) But MDEQ was unwilling to
budge on its pre-flushing requirement until new regulations
were issued, maintaining that the State’s lead compliance
sampling procedures comply with federal SDWA
requirements and that pre-flushing instructions are not
requirements but suggestions. (Id. at 2, Pg ID 1207.) Region
5 again offered the EPA’s technical assistance. (Id. Ex. 20 at
1-2, ECF No. 39-3 at Pg ID 1206-07.)
On August 17, 2015, MDEQ instructed Flint to
implement corrosion control as soon as possible, but no later
than January 1, 2016, and to fully optimize its treatment
within six months. (Def.’s Mot. Ex. C at 52, ECF No. 37-3 at
Pg ID 866; Ex. 32 at 3, ECF No. 39-15 at Pg ID 1294; Pls.’
Resp. Ex. 70 at 15, ECF No. 53-27 at Pg ID 2122.) During an
August 31, 2015 conference call between MDEQ and Region
5, the results of the second six-month (January-July 2015)
monitoring test results for Flint were discussed, which
reflected that corrosion control was needed. (Pls.’ Resp. Ex. 70
at 15, ECF No. 53-27 at Pg ID 2122.) During this call, Region
5 discussed the need for outreach to Flint’s citizens to reduce
In response to this request, the EPA issued a policy memorandum on
November 3, 2015, clarifying how the LCR should be interpreted on a prospective
basis and agreeing with Region 5’s interpretation. (Def.’s Resp. Ex. 31, ECF No. 3914.) In the memo, EPA headquarters recognized that “the language of the LCR does
not specifically discuss [the situation where a public water system disconnects from
one source and begins distributing water from another source]” and “that there are
differing possible interpretations of the LCR with respect to how the rule’s optimal
corrosion control treatment procedures apply to this situation …..” (Id. at 1, Pg ID
1290.)
2
13
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12660
Page 14 of 87
their exposure to high lead levels in the drinking water and
reiterated the offer of technical assistance in implementing
corrosion control treatment. (Def.’s Mot. Ex. 32 at 3, ECF No.
39-15 at Pg ID 1294.) But Region 5 viewed MDEQ as having
the responsibility to alert the public as the primacy agency.
(Id. Ex. C at 109, ECF No. 37-3 at Pg ID 880).
Instead, as EPA’s agents were well aware, City officials
continued to assure Flint residents that there was no
corrosivity issue and that MDEQ and the EPA found the City
in compliance with safe water standards. (Pls.’ Resp. Ex. 47
at 3, ECF No. 53-22 at Pg ID 2059.) At the same time, the EPA
learned that pediatricians at Hurley Medical Center in Flint
had conducted a study which showed a rise in the blood lead
levels of Flint’s children after the switch to the Flint River as
the City’s water source. (Id. at 2-3, Pg ID 2058-59.) For
example, in the two zip codes where the highest level of lead
was found in the water, the EBL (elevated blood lead) levels
for infants less than fifteen months old rose from 1.5% to 4.4%.
(Id.) The rest of Flint had an increase from .6 to 1.1% for the
same age group. (Id.) There was no change, in comparison, for
non-Flint infants less than fifteen months old. (Id.) For
children less than five-years old, EBL levels rose from 2.1% to
4.0% throughout Flint and from 2.5% to 6.3% in the two mostaffected zip codes. (Id.)
On September 3, 2015, Flint’s Mayor announced that
the City would implement corrosion control treatment and
invited EPA corrosion control experts to join the Flint
Technical Advisory Committee (“TAC”). (Def.’s Mot. Ex. 32 at
4, ECF No. 39-15 at Pg ID 1295.) On October 7, 2015, the TAC
recommended that MDEQ direct Flint to resume purchasing
treated water from the DSWD, now called the Great Lakes
Water Authority. (Id. Ex. G at 73, 75-76; ECF No. 37-3 at Pg
ID 1078; Ex. 32 at 4, ECF No. 39-15 at Pg ID 1295.) On
14
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12661
Page 15 of 87
October 16, 2015, the EPA established the Flint Safe Drinking
Water Task Force (“EPA Flint Task Force”) to provide
technical expertise to MDEQ and the City. (Ex. 32 at 4, ECF
No. 39-15 at 1295.) On the same date, Flint switched back to
purchasing finished water from Detroit.
Despite the switch, corrosion control treatment
remained necessary because the corrosive Flint River water
had eroded away the protective coatings in the system. (See
id. Ex. G at 76, ECF No. 37-7 at Pg ID 1078, Ex. 32 at 5, ECF
No. 39-15 at Pg ID 1296.) On November 25, 2015, and on
subsequent dates, the EPA Flint Task Force requested
information which was not being shared to assess the City’s
progress with corrosion control. (Id. Ex. 32 at 4-5, ECF No. 3915 at Pg ID 1295.) Without the information, the EPA could
not evaluate whether the contamination in the City’s water
system had been eradicated. (Id.) While the City began
additional corrosion control treatment in early December
2015, the EPA was not assured that high levels of lead and
other contaminants had been removed from the water system.
(Id.)
On December 14, 2015, the City declared an emergency.
On January 14, 2016, Michigan’s Governor requested
emergency disaster assistance. Two days later, President
Obama declared a federal emergency in the City. On January
21, 2016, the EPA issued an emergency order pursuant to
Section 1431 of the SDWA. (Id. Ex. 32, ECF No. 39-15 at Pg
ID 1292-1309.) The EPA identified several reasons for issuing
the order at that time, including continued “delays in
responding to critical EPA recommendations and in
implementing the actions necessary to reduce and minimize
the presence of lead and other contaminants in the water
supply” presently and moving forward. (Id. at 8 at Pg ID
1299.) Further, the EPA noted MDEQ’s and the City’s failure
15
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12662
Page 16 of 87
and continued failure to provide necessary information for the
EPA, the EPA Flint Task Force and Flint citizens “to fully
understand and respond promptly and adequately to the
current deficiencies.” (Id.) Additionally, the City viewed its
switch back to Detroit water as temporary and planned to
eventually move to untreated water from KWA. The EPA
viewed the transition as posing “complex technical and
managerial challenges … that have serious implications for
drinking water safety and public health.” (Pls.’ Resp. Ex. 63
at 2, ECF No. 41-4 at Pg ID 1723.) The EPA was concerned
that the City lacked the professional expertise and resources
to manage the transition and carry out the recommended
actions to safely manage the City’s water system. (Id.; Def.’s
Mot Ex. 32 at 8, ECF No. 39-15 at Pg ID 1299.)
On October 20, 2016, the EPA Office of Inspector General
(OIG) issued a “Management Alert” in which it found that
“Region 5 had the authority and sufficient information to
issue a SDWA Section 1431 emergency order to protect Flint
residents from lead-contaminated water as early as June
2015.” (Pls.’ Resp. Ex. 53 at 1, ECF No. 53-25 at Pg ID 2019.)
The OIG indicated that “EPA’s 1991 guidance on SDWA
Section 1431 orders states that if state actions are deemed
insufficient, the EPA can and should proceed with a SDWA
Section 1431 order, and the EPA may use its emergency
authority if state action is not protecting the public in a timely
manner.” (Id.)
Burgess, 375 F. Supp. 3d at 803–09.
II.
Federal Tort Claims Act
The Federal Tort Claims Act permits plaintiffs to obtain
compensation from the United States for the negligence of its employees.
16
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12663
Page 17 of 87
The FTCA “is the exclusive remedy for suits against the United States or
its agencies sounding in tort.” Himes v. United States, 645 F.3d 771, 776
(6th Cir. 2011) (citing 28 U.S.C. § 2679(a)). The Act waives sovereign
immunity, which otherwise prohibits private citizens from suing a
sovereign state without its consent. Under the FTCA, federal district
courts have jurisdiction over claims against the United States for
personal injury or death caused by the “negligent or wrongful act or
omission” of any government employees acting within the scope of their
employment, “under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
The United States filed a motion to dismiss Plaintiffs’ case for lack
of subject matter jurisdiction. (ECF No. 300.) It contends that it has not
waived sovereign immunity under the FTCA because Michigan law
would
not
impose
liability
on
private
individuals
in
similar
circumstances. The United States also argues that two exceptions to the
FTCA
apply:
the
discretionary
function
exception
and
the
misrepresentation exception. The Court will first consider the viability of
Plaintiffs’ claims under Michigan law, and then address each of the two
17
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12664
Page 18 of 87
exceptions. For the reasons set forth below, the United States has waived
sovereign immunity in this case because Plaintiffs have stated a claim
under Michigan law and neither of the two FTCA exceptions apply.
III.
Standard of Review
“Rule 12(b)(1) motions to dismiss for lack of subject-matter
jurisdiction generally come in two varieties: a facial attack or a factual
attack.” Gentek Bldg. Prod., Inc. v. Sherwin-Williams Co., 491 F.3d 320,
330 (6th Cir. 2007). Both apply here. The United States brings a facial
attack on the sufficiency of Plaintiffs’ complaint by arguing that under
the facts set forth above, there would be no liability under state law—a
necessary prerequisite to bring a claim under the Federal Tort Claims
Act. The United States also brings a factual attack on the pleadings by
arguing that two exceptions to the FTCA apply.
A facial attack “questions [ ] the sufficiency of the pleading.” Rote v.
Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016) (quoting O’Bryan
v. Holy See, 556 F.3d 361, 375 (6th Cir. 2009)). “When reviewing a facial
attack, a district court takes the allegations in the complaint as true.”
Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d
806, 810 (6th Cir. 2015) (quoting Gentek Bldg. Prod., 491 F.3d at 330). “If
18
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12665
Page 19 of 87
those allegations establish federal claims, jurisdiction exists.” O’Bryan,
556 F.3d at 376. But, “conclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a motion
to dismiss.” Rote, 816 F.3d at 387 (quoting O’Bryan, 556 F.3d at 376).
“This approach is identical to the approach used by the district court
when reviewing a motion invoking Federal Rule of Civil Procedure
12(b)(6).” Glob. Tech., 807 F.3d at 810.
A factual attack, by contrast, “raises a factual controversy requiring
the district court to ‘weigh the conflicting evidence to arrive at the factual
predicate that subject-matter does or does not exist.’” Wayside Church v.
Van Buren County, 847 F.3d 812, 817 (6th Cir. 2017) (citing Gentek Bldg.
Prod., 491 F.3d at 330) (internal citations omitted). In a factual attack on
subject matter jurisdiction, there is no presumptive truthfulness that
applies, and “the court is free to weigh the evidence and satisfy itself as
to the existence of its power to hear the case.” United States v. Ritchie, 15
F.3d 592, 598 (6th Cir. 1994). “In considering a Rule 12(b)(1) motion to
dismiss for lack of jurisdiction, a district court may consider factual
matters outside the pleadings and resolve factual disputes.” Anestis v.
19
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12666
Page 20 of 87
United States, 749 F.3d 520, 524 (6th Cir. 2014) (citing Ohio Nat’l Life
Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990)).
A district court engages in a factual inquiry “only when the facts
necessary to sustain jurisdiction do not implicate the merits of the
plaintiff’s claim.” Gentek Bldg. Prod., 491 F.3d at 330 (citation omitted).
If the jurisdictional issue is intertwined with the underlying substantive
merits of the case, such evidentiary decisions should await a
determination of the case on the merits. Moore v. LaFayette Life Ins. Co.,
458 F.3d 416, 442 (6th Cir. 2006) (quoting Eubanks v. McCotter, 802 F.2d
790, 793 (5th Cir. 1986)); see also Wright v. United States, 82 F.3d 419
(6th Cir. 1996) (unpublished) (upholding a district court’s decision to
convert an FTCA discretionary function challenge into a motion for
summary judgment because “the jurisdictional question of whether the
rangers violated the applicable regulations concerning dangerous trees is
interwoven with the question of whether the rangers acted negligently.”).
Courts have recognized that in FTCA cases, questions of
jurisdiction are often closely intertwined with the merits. See Franklin
Sav. Corp. v. United States, 180 F.3d 1124, 1129 (10th Cir. 1999)
(explaining that the district court must convert a Rule 12(b)(1) motion to
20
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12667
Page 21 of 87
one under Rule 12(b)(6), or for summary judgment on the question of
whether the FTCA’s discretionary function exception applies); Douglas v.
United States, 814 F.3d 1268, 1275 (11th Cir. 2016) (finding that the
12(b)(1) motion to dismiss claiming the FTCA’s discretionary function
exception was based on facts intertwined with the merits and so the
defendant must proceed under Rule 12(b)(6) or Rule 56); S.R.P. ex rel.
Abunabba v. United States, 676 F.3d 329, 343–44 (3d Cir. 2012)
(recognizing that Rule 12(b)(1) does not provide plaintiffs the procedural
safeguards of Rule 12(b)(6) which calls for “a relaxed standard of proof
for the jurisdictional question where jurisdiction is intertwined with the
merits”).
Although the Sixth Circuit has not spoken as to which standard of
proof should apply, because the merits of this case intertwine with the
jurisdictional issues, Plaintiffs must be afforded more procedural
safeguards than review under 12(b)(1) affords. Because the parties have
already engaged in jurisdictional discovery, the Court will treat any
disputed jurisdictional issues of fact under a standard similar to Rule 56.
See Gentek Bldg. Prod., 491 F.3d at 330 (explaining that this provides a
“greater level of protection to the plaintiff who in truth is facing a
21
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12668
Page 22 of 87
challenge to the validity of his claim” when “the defendant is forced to
proceed under Rule 12(b)(6) . . . or Rule 56 . . . both of which place greater
restrictions on the district court’s discretion.”). This approach will allow
the Court to look beyond the pleadings, but will still afford Plaintiffs the
procedural safeguards of Rule 56 insofar as the Court must view “the
evidence, all facts, and any inferences that may be drawn from the facts
in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc.
v. Mt. Hawley Ins. Co., 95 F. App’x 132, 135 (6th Cir. 2004) (citing
Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002)). Thus,
dismissal in this case is only proper when “the movant shows that there
is no genuine dispute as to any material fact.” Fed. R. Civ. P. 56(a).
Finally, “it is a universal rule . . . that a party who invokes the
jurisdiction of a federal court must allege all facts necessary to give the
court jurisdiction of the subject matter.” Carlyle v. U.S., Dep’t of the
Army, 674 F.2d 554, 556 (6th Cir. 1982) (quoting Stewart v. United States,
199 F.2d 517, 520 (7th Cir. 1952)). The burden is on Plaintiffs to allege
facts that fall within the FTCA and outside of its exceptions listed in 28
U.S.C. § 2680. However, under Sixth Circuit precedent, the burden of
proof shifts when the United States invokes exceptions to the FTCA.
22
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12669
Page 23 of 87
Carlyle, 674 F.2d at 556 (“Only after a plaintiff has successfully invoked
jurisdiction by a pleading that facially alleges matters not excepted by
[Section] 2680 does the burden fall on the government to prove the
applicability of a specific provision of [Section] 2680”); Burgess, 375 F.
Supp. 3d at 801.
IV.
Analysis
A.
Private Liability Requirement
The FTCA does not create a federal cause of action against the
United States, but rather waives the Government’s sovereign immunity
from certain types of claims. The United States is subject to liability for
torts “in the same manner and to the same extent as a private individual
under like circumstances,” 28 U.S.C. § 2674, provided that a private
person “would be liable to the claimant in accordance with the law of the
place where the act or omission occurred.” 28 U.S.C. § 1346(b). The “law
of the place” means the law of the state. FDIC v. Meyer, 510 U.S. 471, 478
(1994). Here, that is Michigan law.
The United States contends that Plaintiffs’ pleadings have not met
the private liability requirement. This is a “facial attack” on the Court’s
subject matter jurisdiction. Therefore, the Court will evaluate the
Plaintiffs’ complaint to determine whether it has alleged sufficient facts
23
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12670
Page 24 of 87
to state a claim under Michigan law. See Glob. Tech., 807 F.3d at 810
(explaining that reviewing a facial attack is “identical to the approach
used by the district court when reviewing a motion invoking Federal Rule
of Civil Procedure 12(b)(6).”); see also Myers v. United States, 17 F.3d 890,
898–99 (6th Cir. 1994) (“Unless the plaintiffs have pled facts sufficient to
justify liability under ordinary state-law principles, and thus invoked the
court’s subject matter jurisdiction under the general waiver of sovereign
immunity in 28 U.S.C. § 2674, there is no need to resort to the exceptions
in 28 U.S.C. § 2680, to dismiss the suit.”)
Plaintiffs contend that the Good Samaritan doctrine applies under
the facts of this case, as it is framed in the Restatement (Second) of Torts
Section 324A and recognized under Michigan law. See Fultz v. UnionCommerce Ins., 683 N.W.2d 587, 590–91 (Mich. 2004). Section 324A
provides:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of a third person or his things, is
subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to
protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of
such harm, or
24
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12671
Page 25 of 87
(b) he has undertaken to perform a duty owed by the other to
the third person, or
(c) the harm is suffered because of reliance of the other or the
third person upon the undertaking.
Restatement (Second) of Torts § 324A (1965). The Good Samaritan
doctrine recognizes that an actor, by affirmative acts, can create or
assume a duty where none otherwise would have existed. See Myers, 17
F.3d at 901. Under this doctrine, when the government undertakes to act,
it is required to act carefully and will be liable for injuries proximately
caused by the failure to do so. Neal v. Bergland, 646 F.2d 1178, 1181–82
(6th Cir. 1981). The Court must answer three questions when conducting
a Good Samaritan doctrine analysis: 1) did the United States undertake
to render services to another; 2) was the United States negligent in its
undertaking; and 3) if so, do any of the three statutory factors described
in Section 324A(a)-(c) apply here. For the reasons set forth below, the
Good Samaritan doctrine applies to the EPA’s alleged conduct and the
United States can therefore be found liable under the FTCA.
i.
An Undertaking to Render Services to Another
The threshold inquiry under Section 324A is whether the EPA
undertook “to render services to another which he should recognize as
25
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12672
Page 26 of 87
necessary for the protection of a third person.” Restatement § 324A.
Plaintiffs plausibly allege that the EPA voluntarily acted for the benefit
of Flint’s citizens. For example, the EPA responded to individual citizen
complaints and met with Flint residents regarding these complaints,
even going to citizens’ homes to conduct independent water testing. (ECF
No. 315-1, PageID.11841, 11845.) For months, EPA Region 5 staff
emailed back and forth with the MDEQ staff regarding Flint’s worrisome
lack of corrosion control and high lead levels. (Id. at PageID.11842–
11850.) Throughout the summer of 2015, the EPA continued to ask the
MDEQ for updates regarding much-needed corrosion control for the
public water system. (Id. at PageID.11849–11851.) In June 2015, the
EPA even offered the MDEQ additional technical assistance in
responding to the water quality issues. (Id. at PageID.11846.) Ultimately,
in January of 2016, the EPA issued an Emergency Order under Section
1431. Importantly, the EPA’s Office of the Inspector General (“OIG”)
found in a report that “EPA Region 5 had the authority and sufficient
information to issue a SDWA Section 1431 emergency order to protect
Flint residents from lead-contaminated water as early as June 2015.” (Id.
at PageID.11858.) The Court agrees with Judge Parker’s conclusion in
26
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12673
Page 27 of 87
Burgess, which found that the “EPA undertook to render services to
Plaintiffs by engaging in oversight, including monitoring, of the State’s
and local water systems’ compliance with the SDWA and by responding
directly to citizen complaints.” 375 F. Supp. 3d at 818.
The United States argues that action pursuant to a federal statute
cannot be a voluntary undertaking. (ECF No. 300, PageID.8570.)
Supreme Court and Sixth Circuit precedent undercut this argument.
FTCA claims based on the Good Samaritan doctrine often involve
government officials acting pursuant to a statute or regulatory
framework. This is because the government may assume an undertaking
by enacting a regulation requiring government employees to perform a
service or function for the protection of the public. See Sheridan v. United
States, 487 U.S. 392, 401 (1988) (finding a Good Samaritan doctrine claim
when the government “voluntarily adopt[ed] regulations” that prohibited
the possession of firearms on the naval base) (citing Indian Towing Co.
v. United States, 350 U.S. 61, 65 (1955)); Myers, 17 F.3d at 902 (finding
that mine inspections pursuant to a federal statute were “sufficient
undertakings to justify application of the good samaritan doctrine’s other
elements.”); Raymer v. United States, 660 F.2d 1136, 1144 (6th Cir. 1981)
27
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12674
Page 28 of 87
(explaining that “the United States has undertaken to render services to
others in adopting the [Federal Coal Mine Health and Safety Act of 1969],
and that cases of this kind are properly resolved by applying the ‘[G]ood
Samaritan doctrine’ as the Supreme Court did in Indian Towing.”).
The United States also argues that a Good Samaritan claim cannot
be premised on a “failure to act,” targeting Plaintiffs’ allegations of the
EPA’s “inaction” pursuant to the SDWA. (ECF No. 300, PageID.8570.)
The United States cites Ashbrook v. Block, which explains that the Good
Samaritan doctrine requires “the defendant undertake to act” and
therefore precludes claims based on inaction. 917 F.2d 918, 926 (6th Cir.
1990) (citing Hart v. Ludwig, 347 Mich. 559 (1956)). As Plaintiffs point
out, however, Hart v. Ludwig—the Michigan Supreme Court case that
Ashbrook cites for this proposition—also discusses the “slippery
distinction between action and nonaction.” 347 Mich. 559, 565 (1956).
Therefore, the inquiry must be focused instead on “the fundamental
concept of ‘duty’” rather than on action or inaction. Id. In Hart, the court
explained that when viewed as a smaller part of a whole, negligent acts—
such as a surgeon failing to sterilize her tools—could all be characterized
as “inaction.” But, in the context of a duty, a doctor failing to sterilize
28
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12675
Page 29 of 87
tools during surgery is negligent action. So too here. When Plaintiffs
allege that the EPA’s inaction in response to the Flint Water Crisis
caused them harm, that alleged failure to act was in the course of an
undertaking.
ii.
Whether the Government was Negligent
The second pre-requisite to liability under Section 324A is that the
EPA must have been negligent in its undertaking. Plaintiffs have alleged
sufficient facts to show that the EPA was negligent in its oversight and
monitoring pursuant to the SDWA and in responding to citizen
complaints. Plaintiffs allege that by “October 2014, EPA Region 5 had
authority and sufficient information to require the issuance of a SDWA
Section 1431 emergency order to protect Flint residents from lead
contaminated water.” (ECF No. 315-1, PageID.11863.) That emergency
order did not come until January 21, 2016. (Id. at PageID.11857.)
Plaintiffs also allege that the EPA did not provide expert advice and
technical assistance as required under Section 1414 until September
2015, despite knowing about the urgent need for such assistance as early
as October 2014. (Id. at PageID.11861–11863.)
29
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12676
Page 30 of 87
Plaintiffs additionally allege that the EPA did not respond to citizen
complaints in a timely way. (Id. at PageID.11841–11842.) For example,
in October 2014, the EPA received a citizen complaint from Jan Burgess
that her water smelled sometimes like an “over-chlorinated swimming
pool” and other times “like pond scum.” (Id. at PageID.11840.) That
complaint stated that Flint’s water is “often brown in color and frequently
had visible particles floating in it.” (Id.) The EPA did not meet with
Burgess until April 2016, almost a year and a half after she reported the
environmental violations. (Id. at PageID.11841.) LeeAnne Walters,
another citizen who is a plaintiff in this case’s non-FTCA counts,
informed the EPA in January 2015 that she and her family members
“were becoming physically ill from exposure to the water coming from her
tap.” (Id. at PageID.11842.) Walters later provided the EPA with reports
of elevated blood lead levels for her children. (Id. at 11844.) Plaintiffs
plausibly allege that the EPA did not follow up on these investigations in
a timely way, even though it was involved early in the Flint Water Crisis
and had evidence that there were dangerous levels of lead in Flint’s
public water system.
30
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12677
Page 31 of 87
Plaintiffs also allege that the EPA failed to promptly notify and
later warn Flint water users that their water was highly corrosive and
contaminated with lead and dangerous bacteria. (Id. at PageID.11862–
11865.) To the contrary, when EPA water expert Miguel Del Toral’s draft
report first circulated in June 2015—a report which detailed the major
public health concern of Flint’s elevated lead and copper levels—EPA
Region 5’s Director Hedman told Flint’s mayor that “[t]he preliminary
draft report should not have been released outside the agency.” (Id. at
PageID.11848.) Hedman told the mayor that he could tell those
investigating the lead issues that Del Toral’s report was a “preliminary
draft” and so “it would be premature to draw any conclusions based on
that draft.” (Id.) Despite the alarming content of Del Toral’s report, the
revised memo was released four months later—in November 2015. (Id. at
PageID.11857.)
For these reasons, the Court finds that Plaintiffs have adequately
alleged that the EPA was negligent in its undertaking. Once the
threshold is met for a claim under Section 324A, a plaintiff must then
demonstrate that one of the three alternative statutory bases also exists:
(a) a failure to exercise reasonable care that increases the risk of such
31
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12678
Page 32 of 87
harm, (b) an undertaking to perform a duty owed by the other to the third
person, or (c) that a harm is suffered because of reliance of the other or
the third person upon the undertaking. Restatement § 324A. Plaintiffs
allege facts sufficient to show that all three alternative bases apply in
this case.
iii.
Section 324A(a) Increased Risk of Harm
The first circumstance under which the government might owe a
duty to Plaintiffs is under Section 324A(a). Plaintiffs must allege that the
EPA’s negligence increased the risk of harm to them. The Sixth Circuit
explained that the test is “not whether the risk was increased over what
it would have been if the defendant had not been negligent. Rather, a
duty is imposed only if the risk is increased over what it would have been
had the defendant not engaged in the undertaking at all.” Myers, 17 F.3d
at 903.
Here, Plaintiffs allege that the EPA’s failure to comply with Section
1431 and 1414 of the SDWA increased their risk and level of harm. (ECF
No. 315-1, PageID.11864.) Plaintiffs also contend that the EPA’s failure
to warn Flint citizens of the environmental disaster and subsequent
cover-up increased their harm. (Id. at PageID.11866–11867.) The United
32
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12679
Page 33 of 87
States contends that the EPA’s inaction did not affirmatively cause the
Flint Water Crisis or increase the risk of harm to Plaintiffs. (ECF No.
300, PageID.8571–8572.) Rather, the United States argues that it was
the City of Flint and MDEQ’s switch to the Flint River without corrosion
control that caused the harm to Plaintiffs.
The United States argues that this case is like Myers where the
Sixth Circuit found that the alleged negligence of federal mine inspectors
did not increase a risk of harm to the miners. 17 F.3d at 902. In Myers,
the mine owners were out of compliance with federal safety regulations
and methane gas accumulated, eventually causing an explosion that
killed several miners. Id. at 893. The plaintiffs sued the United States
over the mine inspectors’ failure to detect safety violations. The court did
not find that this failure increased the miners’ risk of harm. Id. at 902–
03.
One key difference between this case and Myers is that the mine
inspectors failed to identify a safety hazard, whereas in this case, the
EPA knew as early as June 2015 that Flint residents were in danger of
drinking and being exposed to lead contaminated water. (ECF No. 315-1,
PageID.11846, 11858.) In fact, Plaintiffs allege the EPA had enough
33
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12680
Page 34 of 87
information at that time to issue an emergency order under Section 1431
of the SDWA. (Id.) Yet the EPA did not issue its emergency order until
seven months later, in January 2016. This is one reason why the holding
in Myers does not require dismissal in this case.
Another difference is that in Myers, the Sixth Circuit found that the
risk of explosion “was constant,” explicitly rejecting the idea that an
unreported safety violation over time necessarily resulted in an
“increased risk of harm” merely because the probability of an explosion
increased each day. 17 F.3d at 902. Conversely, the dangers of consuming
lead are not constant and certainly accumulate over time. Indeed, the
harm to Plaintiffs increased every day they drank, fed their babies
formula made with contaminated water, and took showers in lead and
bacteria-infested water. This case is not about a “constant harm” as the
Sixth Circuit found in Myers, but instead demonstrates an increased risk
of harm to Plaintiffs as each day passed. In this way, the EPA’s role is
similar to that of other Defendants in the Court’s prior Flint Water Cases
who were not alleged to have caused the Flint Water Crisis (by
authorizing the switch to Flint River Water), but acted in ways that
increased the harm to Flint citizens. Defendant Gerald Ambrose, for
34
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12681
Page 35 of 87
example, took over as Emergency Manager in the midst of the crisis, and
despite knowing of the dangers, never ordered the City to stop using Flint
River Water. In re Flint Water Cases, 960 F.3d 303, 325–26 (6th Cir.
2020). Defendant Bradley Wurfel was similarly not part of the decision
to switch Flint’s water source, but the Sixth Circuit held that he could be
liable for knowing of the harm plaintiffs faced and taking steps to deceive
them into thinking that their water was safe. Id. at 329.
Myers is similar to this case in one respect. The Sixth Circuit
explained that the government could be held liable for injuries if, by
undertaking to monitor “compliance with federal safety regulations, and
by subsequent negligence in the course of that monitoring, the MSHA
inspectors make the mine less safe than it otherwise would have been.”
17 F.3d at 902. This is exactly what Plaintiffs plausibly allege here: That
the EPA contributed to the Flint Water Crisis by making the water less
safe than it otherwise would have been. Every passing day that the EPA
knew of the high lead levels in the water, but did not take appropriate
action, resulted in increased contaminates being extracted from water
pipes, hot water tanks, and dishwashers, and ultimately being ingested,
harming Plaintiffs and their property. (ECF No. 315-1, PageID.11838–
35
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12682
Page 36 of 87
11839.) The longer untreated water flows through pipes and into homes,
the more the lead levels increase. (Id. at PageID.11847.) Also, as set forth
below, see Part IV.A.v., the harm resulted in part because the EPA
encouraged Plaintiffs’ reliance on its role in inspecting and supervising
the water quality in Flint. The EPA encouraged this reliance by
responding to individual citizen complaints and even going to citizens’
homes to conduct independent water testing. (Id. at PageID.11841,
11845.) Plaintiffs also allege that the EPA made a public statement in
July of 2015 that it would work with the MDEQ and City of Flint to deal
with the “lead contamination issues and to ensure that Flint’s drinking
water meets federal standards.” (Id. at PageID.11849.) Plaintiffs have
plausibly alleged that they suffered increased harm because they relied
on the EPA for oversight and intervention.
iv.
Section 324A(b) Undertaking to Perform a Duty Owed
to a Third Person
The “undertaking to perform a duty” alternative theory of relief set
forth in Section 324A(b), requires Plaintiffs to allege that the EPA “has
undertaken to perform a duty owed by the other to the third person.”
Restatement § 324(A)(b). Here, Plaintiffs allege that the EPA undertook
to fulfill the duty owed to Plaintiffs by the MDEQ. Specifically, Plaintiffs
36
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12683
Page 37 of 87
argue that the EPA provided services in testing, evaluating, water
sample collection and analysis, as well as technical and supervisory
services to the City of Flint, and that these were all the duties required
of the MDEQ.
The United States’ main argument here is that under the SDWA,
because Michigan is a primacy state, the MDEQ retains primary
enforcement responsibility for the public water system in Flint, which
negates any possibility that the EPA undertook duties that the MDEQ
owed to Plaintiffs. The United States compares this case to the Sixth
Circuit’s decisions in Myers and Raymer, both of which held that federal
mine inspectors did not owe a duty to mine owners or miners under the
Mine Safety and Health Act. Myers ,17 F.3d at 903; Raymer, 660 F.2d at
1143–44 (“The mine operator’s duty to the miners to maintain safe
conditions was unaffected by the 1969 Act and the mine inspectors did
not assume this duty.”) In Myers, the court found that the plain language
of the statute made clear that “inspections performed by MSHA are for
the purpose of ensuring that Grundy and the miners comply with their
duties, not for the purpose of relieving them of those duties.” 17 F.3d at
903.
37
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12684
Page 38 of 87
The Safe Drinking Water Act, in contrast to the Federal Mine
Safety and Health Act, does not serve to merely ensure that states comply
with their duties. As the Sixth Circuit found in Mays, another Flint
Water case, “the EPA retains the ability to intervene when a state with
primary enforcement authority fails to meet the requirements to
maintain such authority.” Mays v. City of Flint, 871 F.3d 437, 447 (6th
Cir. 2017) (citing 40 C.F.R. § 142.17(a)(2)). Even though the Mays court
found that under similar facts, “Michigan was so governing itself when
the alleged actions and inactions giving rise to the Plaintiffs’ claims
occurred,” id., does not mean that the EPA had not begun to undertake
some of the MDEQ’s duties.
The SDWA’s framework is one of “cooperative federalism.” Mays,
871 F.3d at 447. In order for the MDEQ to obtain primacy in the first
place, the EPA Administrator had to “delegate any of his functions under
[the statute] (other than prescribing regulations) to any officer or
employee of the Agency.” 42 U.S.C. § 300j-9. The EPA retains authority
to step in, as well as to reassume primary authority. See 42 U.S.C. § 300g2(a) (“a State has primary enforcement responsibility for public water
systems during any period for which the Administrator determines”
38
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12685
Page 39 of 87
several criteria are met); 40 C.F.R. § 142.17(a)(2) (“When, on the basis of
the Administrator’s review or other available information, the
Administrator determines that a State no longer meets the requirements
[to remain a primacy state] the Administrator shall initiate proceedings
to withdraw primacy approval.”). This is another way in which the SDWA
is unlike the MSHA in Myers and Raymer—the federal mine inspectors
cannot step in a seize a mine.
Even though the MDEQ had primacy during the relevant time
period, Plaintiffs plausibly allege that under the SDWA, the EPA began
undertaking some of the MDEQ’s duties to Plaintiffs. For example, it
began monitoring lead test results from Flint (ECF No. 315-1,
PageID.11844), doing independent investigations of citizens’ lead levels
in their homes (id. at PageID.11845), supervising a service line
replacement of a home with high lead levels (id. at PageID.11846), and
offering additional technical assistance to managing the water quality
issues in Flint. (Id.) The fact that the EPA began strategizing with the
MDEQ about how to respond to (and even downplay) the public health
crisis to the media and independent investigators also plausibly suggests
more than mere supervisory involvement. (Id. at PageID.11851–11853.)
39
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
v.
PageID.12686
Page 40 of 87
Section 324A(c) Reliance
Under the reliance alternative set forth in Section 324A(c),
Plaintiffs must “show justifiable, detrimental reliance.” Myers, 17 F.3d at
903. The detrimental reliance must have induced Plaintiffs “to forgo
other remedies or precautions against the risk.” Id. (citing Restatement
§ 324A cmt. e. (1965)). For the reasons set forth below, Plaintiffs allege
sufficient facts to plead reliance under the Good Samaritan doctrine.
The United States argues that Plaintiffs could not have reasonably
relied upon the EPA to protect them from harm during the Flint Water
Crisis. (ECF No. 300, PageID.8573.) This is because the SDWA places
primary responsibility for compliance onto the City of Flint and the State
of Michigan, and so it would be unreasonable for Plaintiffs to rely upon
the EPA. (Id.) Plaintiffs contend that their reliance was reasonable and
that it was not only Plaintiffs who relied upon the EPA, but also the City
of Flint and MDEQ. (ECF No. 305, PageID.9908–9909.)
First, Section 324(A)(c) has a broader view of reliance than the
United States suggests. This is because harm can be suffered because “of
reliance of the other or the third person upon the undertaking.”
Restatement § 324(A)(c). Thus, either the Plaintiffs or the “other”—the
40
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12687
Page 41 of 87
City of Flint or MDEQ—may have detrimentally relied on the EPA under
the Good Samaritan doctrine. Plaintiffs contend that the MDEQ and the
City of Flint relied on the EPA’s conduct and inaction “as a basis for
assuring Plaintiffs that the water was safe and they could continue to
drink it, because EPA was not issuing any emergency order, was not
warning the public and had not advised anyone that the state and city
were violating the LCR.” (ECF No. 305, PageID.9909.) Plaintiffs have
sufficiently alleged here that the MDEQ and the City of Flint
detrimentally relied on the EPA, and that this reliance harmed Plaintiffs.
Plaintiffs also assert that they reasonably relied on the EPA to their
detriment. The United States argues that under Myers, it was
unreasonable for Plaintiffs to have relied on the EPA. In Myers, the Sixth
Circuit found that because federal mine inspectors did not have primary
responsibility over mine safety under the relevant statute, “the
government employees [were] mere observers, monitoring the actions of
others.” Myers, 17 F.3d at 904. The Sixth Circuit set forth an
“actor/monitor dichotomy” to determine whether “the government
employees were active participants, providing services to others” or
“mere observers.” Id.
41
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12688
Page 42 of 87
The United States argues that the SDWA is like the Federal Mine
Safety and Health Act at issue in Myers where the court found that “[i]n
light of the clear Congressional purpose to ensure that the primary
responsibility for safety remains with the mine owners and miners . . .
such reliance—even had it occurred—would have been manifestly
unreasonable and unjustified.” Id. (citing Moody v. United States, 774
F.2d 150, 157 (6th Cir. 1985)). But as explained above, see Part IV.A.iv.,
in passing the SDWA, Congress never intended to leave compliance
entirely to the states, and instead it built in federal oversight for our
nation’s drinking water. As Plaintiffs argue, it is unreasonable to think
that citizens have any primary responsibility over the safety of their
drinking water. (ECF No. 305, PageID.9909.) No average citizen could be
expected to understand the chemistry of Flint’s water. Moreover, even
though citizens complained of the smell and taste of their water, the
threats of lead and dangerous bacteria are practically invisible. (Id.)
The EPA also took actions that went beyond that of “mere
observers, monitoring the actions of others.” Myers. 17 F.3d at 904. From
Plaintiffs’ complaint, it is clear that the EPA played an active role since
at least early 2015. For example, the EPA undertook to respond directly
42
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12689
Page 43 of 87
to citizen complaints. (ECF No. 315-1, PageID.11839–11842, 11844.) The
EPA also worked with the MDEQ and City of Flint collaboratively. It
provided services in testing and evaluating water samples along with
providing technical and consulting services to the MDEQ and City of
Flint. (Id. at PageID.11845–11848.) In fact, Plaintiffs allege that on July
10, 2015, EPA Region 5 Director Hedman “issued a press statement
which stated in part that the ‘EPA will work with the Michigan DEQ and
the City of Flint to verify and assess the extent of lead contamination
issues and to ensure that Flint’s drinking water meets federal
standards.’” (Id. at PageID.11849.)
Plaintiffs also allege that they relied to their detriment on the EPA,
causing them “to forgo other remedies or precautions against the risk.”
Myers, 17 F.3d at 903. For example, citizens of Flint submitted
complaints directly to the EPA, which the EPA did not timely investigate.
Plaintiffs allege that if a timely investigation had happened, “a violation
of environmental law would have been detected and City of Flint would
have been required to implement corrosion control treatment or to
develop another remedy to prevent harm to claimants.” (ECF No. 315-1,
PageID.11865.) Plaintiffs further contend that the EPA’s press officer
43
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12690
Page 44 of 87
misled the media when asked whether there was need for a warning to
citizens about drinking the water—the EPA “responded that the ‘lead
monitoring shows Flint has not exceeded the lead action level’ and that
‘Flint recently accepted EPA’s offer to provide technical assistance to the
City and MDEQ.’” (Id. at PageID.11852.)
It is plausible, given these factual allegations, that the citizens of
Flint did not seek other help because the federal government undertook
to intervene. By 2015, three levels of government were on the ground in
Flint, all claiming that the water situation was under control and the
drinking water was safe. This combination of local, state, and federal
government oversight is surely enough for citizens “to forgo other
remedies or precautions against the risk.” Myers, 17 F.3d at 903.
vi.
Conclusion
The United States relies heavily on the Sixth Circuit’s opinion in
Myers to argue that Plaintiffs have not stated a claim under the Good
Samaritan doctrine. It is worth stepping back to note that even before
the Myers court’s detailed analysis of the doctrine, the Sixth Circuit held
“that the mere failure to detect another’s violation of safety regulations,
without more, does not give rise to a duty under the good samaritan
44
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12691
Page 45 of 87
doctrine.” 17 F.3d at 901. Unlike the complaint in Myers, Plaintiffs’
complaint details much more than a “mere failure to detect another’s
violation of safety regulations.” Plaintiffs allege that the EPA found
safety violations and was actively involved with the City of Flint and
MDEQ as a lead-contaminated public water supply system persisted for
months.
Plaintiffs allege facts sufficient to support state law liability for a
similarly situated private individual under the Good Samaritan doctrine.
Thus, Plaintiffs have alleged conduct that is within the FTCA, and so the
only question remaining is whether an exception to the FTCA applies.
B.
Discretionary Function Exception
The United States argues that Plaintiffs’ complaint must be
dismissed because all of the alleged conduct falls under the discretionary
function exception to the FTCA. The “discretionary function exception”
exempts “[a]ny claim . . . based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part
of a federal agency or an employee of the Government, whether or not the
discretion involved be abused.” 28 U.S.C. § 2680(a). The burden of proof
is on the United States when invoking exceptions to the FTCA. See
45
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12692
Page 46 of 87
Carlyle v. U.S., Dep’t of the Army, 674 F.2d 554, 556 (6th Cir. 1982). But
if a tort claim falls within an exception, the Court lacks jurisdiction to
adjudicate it. See Kohl v. United States, 699 F.3d 935, 940 (6th Cir. 2012).
The United States’ argument is a factual attack on the Court’s subject
matter jurisdiction over this case, and as set forth above, see Section III,
the Court will treat any jurisdictional factual disputes that intertwine
with the merits of the case under a Rule 56 standard, viewing “the
evidence, all facts, and any inferences that may be drawn from the facts
in the light most favorable to the nonmoving party.” Pure Tech Sys., Inc.,
95 F. App’x at 135 (citing Skousen, 305 F.3d at 526).
As the Supreme Court explained, Congress, through the
discretionary function exception, “wished to prevent judicial ‘secondguessing’ of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort.”
United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig
Airlines), 467 U.S. 797, 814 (1984). The Supreme Court has set forth a
two-step test to determine whether a claim falls within the discretionary
function exception. United States v. Gaubert, 499 U.S. 315, 322–23
(1991); see also Kohl v. United States, 699 F.3d 935, 940 (6th Cir. 2012).
46
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12693
Page 47 of 87
The first step to determine whether the discretionary function
exception applies is to ask, simply, whether the action or omission was
discretionary. This step “requires a determination of whether the
challenged act or omission violated a mandatory regulation or policy that
allowed no judgment or choice.” Rosebush v. United States, 119 F.3d 438,
441 (6th Cir. 1997) (citing Gaubert, 499 U.S. at 322–23). As the Supreme
Court explained, the “discretionary function exception will not apply
when a federal statute, regulation, or policy specifically prescribes a
course of action for an employee to follow.” Berkovitz by Berkovitz v.
United States, 486 U.S. 531, 536 (1988).
If the challenged action was discretionary, then courts move to the
second step of the test: “whether that judgment is of the kind that the
discretionary function exception was designed to shield.” Gaubert, 499
U.S. at 322–23. Thus, the discretionary function exception “protects only
governmental actions and decisions based on considerations of public
policy.” Berkovitz, 486 U.S. at 537 (citation omitted). The test is objective
rather than subjective because the policy considerations need not
actually have been considered—the only question is: could they have been
considered? See Jude v. Comm’r of Soc. Sec., 908 F.3d 152, 159 (6th Cir.
47
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12694
Page 48 of 87
2018) (citations omitted). There is also a “strong presumption” that the
second prong is satisfied upon finding the first prong satisfied. A.O.
Smith Corp. v. United States, 774 F.3d 359, 365 (6th Cir. 2014) (citing
Gaubert, 499 U.S. at 324.)
Before applying the discretionary function test, however, “the
crucial first step is to determine exactly what conduct is at issue.”
Rosebush, 119 F.3d at 441 (citing Autery v. United States, 992 F.2d 1523,
1527–28 (11th Cir. 1993)). Here, Plaintiffs allege that the United States
is liable because the EPA failed to take mandatory actions under Sections
1414 and 1431 of the Safe Drinking Water Act in response to the Flint
Water Crisis. (ECF No. 315-1, PageID.11859–11861.) Specifically,
Plaintiffs claim that the EPA failed to timely investigate, provide
technical assistance, obtain compliance, or commence a civil action. (Id.)
Additionally, Plaintiffs allege that the EPA was negligent in failing to
warn Flint’s citizens about the hazards presented by Flint’s water (id. at
PageID.11866–11867), and negligent in responding to citizen complaints.
(Id. at PageID.11865); (ECF No. 305, PageID.9911.)
For the reasons set forth below, the Court concludes that the
discretionary function exception does not apply to the EPA’s conduct.
48
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12695
Page 49 of 87
Under prong one, the Court finds that the EPA had discretion in its
actions pursuant to Section 1431, as well as over its choice of whether to
warn and how to respond to citizen complaints. The EPA’s conduct
pursuant to Section 1414, however, was not discretionary and so prong
one is not satisfied. But, even if the EPA’s conduct under Section 1414
was discretionary, it does not satisfy prong two. As for the EPA’s conduct
pursuant to Section 1431, its failure to warn, and its negligence in
response to complaints, the Court finds that the alleged conduct does not
entail the kind of judgment that the discretionary function exception was
designed to shield.
i.
Prong One: Was the Action Discretionary?
Plaintiffs contend that the EPA’s conduct pursuant to Sections 1431
and 1414 was mandatory, not discretionary. In their response brief,
Plaintiffs do not argue that the EPA’s conduct in failing to warn or to
timely respond to citizen complaints was mandatory for purposes of
prong one of the discretionary function exception analysis.3 Therefore,
Even if Plaintiffs made this argument, the Court agrees with Judge Parker
in Burgess that such conduct is discretionary for purposes of the first prong of the
test. 375 F. Supp. 3d at 813–14.
3
49
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12696
Page 50 of 87
the Court will only analyze the EPA’s conduct pursuant to Sections 1431
and 1414 under this first prong.
Section 1431
Section 1431 of the SDWA provides that the EPA Administrator4
has the authority, upon learning that the state has not acted to protect
the public from a contaminant that is present or likely to enter a public
water supply, to issue an emergency order to protect the users of that
system. 42 U.S.C. § 300i(a). Plaintiffs argue that this statute, along with
a 1991 EPA guidance document, creates a mandatory obligation to act.
Section 1431 reads in relevant part:
[T]he Administrator, upon receipt of information that a
contaminant which is present in or is likely to enter a public
water system or an underground source of drinking water, or
that there is a threatened or potential terrorist attack (or
other intentional act designed to disrupt the provision of safe
drinking water or to impact adversely the safety of drinking
water supplied to communities and individuals), which may
present an imminent and substantial endangerment to the
health of persons, and that appropriate State and local
authorities have not acted to protect the health of such
The EPA Administrator delegated authority under Sections 1414 and 1431 of
the SDWA, 42 U.S.C. §§ 300g-3, 300i, to the Regional Administrators and the
Assistant Administrator for Enforcement and Compliance Assurance. (Burgess, No.
17-cv-11218, ECF Nos. 41-7, 41-8, 41-9.) The Region 5 Administrator at the time was
Dr. Susan Hedman. See (Burgess, No. 17-cv-11218, ECF No. 53-19, PageID.2034.)
4
50
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12697
Page 51 of 87
persons, may take such actions as he may deem necessary in
order to protect the health of such persons. To the extent he
determines it to be practicable in light of such imminent
endangerment, he shall consult with the State and local
authorities in order to confirm the correctness of the
information on which action proposed to be taken under this
subsection is based and to ascertain the action which such
authorities are or will be taking. The action which the
Administrator may take may include (but shall not be limited
to) (1) issuing such orders as may be necessary to protect the
health of persons who are or may be users of such system
(including travelers), including orders requiring the provision
of alternative water supplies by persons who caused or
contributed to the endangerment, and (2) commencing a civil
action for appropriate relief, including a restraining order or
permanent or temporary injunction.
42 U.S.C. § 300i(a).
The statute’s plain language makes clear that the EPA’s decision to
act under the statute involves “an element of judgment or choice.”
Gaubert, 499 U.S. at 322. It provides that Administrators “may take such
actions” as they “may deem necessary” to protect public health if there is
a contaminate in the public water system and state or local authorities
have not acted properly. Moreover, the enumerated actions that the
Administrator “may take” are qualified with the parenthetical “(but shall
not be limited to).” 42 U.S.C. § 300i(a). Conduct is discretionary when it
51
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12698
Page 52 of 87
involves “an element of judgment or choice,” rather than following a
“‘federal statute, regulation, or policy specifically prescrib[ing] a course
of action’ and leaving ‘the employee [ ] no rightful option but to adhere to
the directive.’” A.O. Smith Corp., 774 F.3d at 364–65 (quoting Berkovitz,
486 U.S. at 536). Here, the Administrator had options that were not
congressionally limited to a given course of action.
Plaintiffs contend that the 1991 EPA guidance document, which the
EPA issued to provide final guidance regarding Section 1431, shows the
mandatory nature of the EPA’s responsibility under this section. (ECF
No. 305, PageID.9913.) The guidance document directs the EPA to act
under Section 1431 if the state’s own “action is insufficient and State and
local agencies do not plan to take stronger or additional actions to ensure
public health protection, in a timely way.” (ECF No. 305, PageID.9913)
(citing Burgess, No. 17-cv-11218, ECF No. 53.) As a general matter,
“agencies are bound to follow their own regulations,” Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004), but “[i]nternal operating
manuals . . . do not carry the force of law, bind the agency, or confer
rights.” Reich v. Manganas, 70 F.3d 434, 437 (6th Cir. 1995); see also
Summit Petroleum Corp. v. U.S. E.P.A., 690 F.3d 733, 738 (6th Cir. 2012)
52
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12699
Page 53 of 87
(“Before this Court and, it appears, in practice, the EPA styles and
regards
its
guidance
memorandums
as
non-binding,
advisory
documents.”). The Court agrees with Judge Parker’s decision in Burgess
which found that as a whole, the 1991 document “emphasizes the
discretionary nature of the agency’s actions under this provision.”
Burgess, 375 F. Supp. 3d at 813. Nothing in the guidance document
contradicts the facially apparent discretion given to the EPA in Section
1431.
For these reasons, the EPA’s conduct under Section 1431 was
discretionary for purposes of the first prong of the discretionary function
exception analysis.
Section 1414
The EPA’s conduct pursuant to Section 1414, by contrast, was not
discretionary. The plain text of the statute sets forth actions that the EPA
must take, and Plaintiffs claim that the EPA did not take those actions.
Section 1414 reads in relevant part:
(a) Notice to State and public water system; issuance of
administrative order; civil action
(1)(A) Whenever the Administrator finds during a period
during which a State has primary enforcement responsibility
53
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12700
Page 54 of 87
for public water systems (within the meaning of section 300g2(a) of this title) that any public water system—
(i) for which a variance under section 300g-4 or an exemption
under section 300g-5 of this title is not in effect, does not
comply with any applicable requirement, or
(ii) for which a variance under section 300g-4 or an exemption
under section 300g-5 of this title is in effect, does not comply
with any schedule or other requirement imposed pursuant
thereto,
he shall so notify the State and such public water system and
provide such advice and technical assistance to such State and
public water system as may be appropriate to bring the
system into compliance with the requirement by the earliest
feasible time.
(B) If, beyond the thirtieth day after the Administrator’s
notification under subparagraph (A), the State has not
commenced
appropriate
enforcement
action,
the
Administrator shall issue an order under subsection (g)
requiring the public water system to comply with such
applicable requirement or the Administrator shall commence
a civil action under subsection (b).
42 U.S.C. § 300g-3.
For the reasons set forth below, the Court finds that the EPA has a
mandatory duty under Section 1414(a)(1)(B). The statute is clear that
thirty days after the EPA notifies a state of its non-compliance with the
54
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12701
Page 55 of 87
SDWA and the state has not taken appropriate action, the EPA “shall”
issue an order or commence a civil action.
The United States first argues that the threshold finding of noncompliance was never met, and so the term “shall” in Section 1414 was
never triggered. (ECF No. 300, PageID.8554.) Because this is a factual
dispute intertwined with the merits of the case, it is not appropriate to
resolve at this time, and so the Court will afford Plaintiffs the procedural
safeguards of Rule 56 of the Federal Rules of Civil Procedure, see Gentek
Bldg. Prod., 491 F.3d at 330, and the burden of proof is on the United
States when it invokes an exception to the FTCA. Carlyle, 674 F.2d at
556. The United States contends that because of ambiguities in the Lead
and Copper Rule that existed in 2015, the EPA could not have made a
finding of non-compliance to trigger Section 1414’s duties. (ECF No. 300,
PageID.8554–8555.) But Plaintiffs point to evidence that the EPA did
make a finding of non-compliance. For example, on June 24, 2015, the
EPA Region 5’s Regulation Manager, Miguel Del Toral, issued an interim
report detailing five separate violations of the National Primary
Drinking Water Regulations by the City of Flint from September 2014 to
June 2015. (Burgess, No. 17-cv-11218, ECF No. 53-4, PageID.1931); see
55
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12702
Page 56 of 87
also (Burgess, No. 17-cv-11218, ECF No. 53-9) (final report issued in
October 2015 finding six violations ranging from August 2014 to June
2015.) In June 2015, the EPA alerted the MDEQ to these concerns, but it
was not until September 2015 that the City began implementing
corrosion control treatment. (Burgess, No. 17-cv-11218, ECF No. 39-15,
PageID.1295.) Lead and Copper Rule ambiguities aside, there is a
genuine issue of fact about whether the EPA found non-compliance “with
any applicable requirement” of the SDWA. 42 U.S.C. § 300g-3.
Plaintiffs argue that the findings of non-compliance may have
occurred even earlier than June 2015. For example, the EPA was aware
of the high lead levels in a Flint home in February 2015 and there was
an email exchange between the EPA and MDEQ about these issues.
(Burgess, No. 17-cv-11218, ECF No. 53-2.) MDEQ official Stephen Busch
told the EPA that the City of Flint had an optimized corrosion control
program in place (id., at PageID.1919), but in April of 2015, the EPA
learned through MDEQ official Patrick Cook that the MDEQ had lied
about these corrosion control measures. (Burgess, No. 17-cv-11218, ECF
No. 53-3.) The EPA then watched as the MDEQ and City of Flint
continually hid the potential lead exposure from the public; in fact, on
56
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12703
Page 57 of 87
July 9, 2015, the Flint mayor told residents in a press conference that
their water was safe to drink. (Burgess, No. 17-cv- 11218, ECF No. 53-25,
PageID.2098.) Finally, in September 2015, the City of Flint issued a
formal health advisory and initiated corrosion control. There is a genuine
issue of fact as to whether the EPA notified the MDEQ of non-compliance
and more than thirty days passed without the MDEQ taking appropriate
enforcement action.
Plaintiffs raise a genuine issue of material fact as to whether the
threshold requirements of Section 1414 were met. If the threshold was
met, the EPA was to either issue an order or commence an action, but the
EPA did neither. Doing neither of these two statutory directives cannot
be considered discretionary for purposes of the discretionary function
test.
Consider the following. Congress passes a statute that requires an
agency to take option A or option B if there is a finding of grave danger.
Though the statute mandates one of two agency responses, it provides
discretion for the agency to choose between A and B. But what if the
agency finds there is grave danger and chooses Option C? Congress did
not give the agency the choice to select Option C. It is therefore not a
57
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12704
Page 58 of 87
proper option for the agency to take. Choosing Option C cannot be
considered “discretionary” even though the statute provides for two other
options. The discretionary function exception cannot protect an agency’s
decision to ignore a mandatory statutory directive and instead choose an
option that Congress did not authorize.
Similarly, here Congress set forth two options for the EPA to take
upon finding that a State was not complying with the Safe Drinking
Water Act. According to Plaintiffs, the EPA chose neither of these two
options. That was not a permissible choice, and the discretionary function
exception cannot be manufactured to protect a non-prescribed choice in
the face of a congressional mandate.
As the Supreme Court explained, “if a regulation mandates
particular conduct, and the employee obeys the direction, the
Government will be protected because the action will be deemed in
furtherance of the policies which led to the promulgation of the
regulation.” Gaubert, 499 U.S. at 324. Conversely, “[i]f the employee
violates the mandatory regulation, there will be no shelter from liability
because there is no room for choice and the action will be contrary to
58
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12705
Page 59 of 87
policy.” Id. Here, part of Section 1414 provides a mandatory regulation,
and Plaintiffs allege that the EPA violated that mandatory regulation.
The United States argues that even though Section 1414 uses the
term “shall,” the statute remains discretionary. It points to Supreme
Court decisions like Heckler v. Chaney, where the Court held that even
though the text of an Act indicated that violators of that Act “shall be
imprisoned,” the agency still had discretion over whether to recommend
prosecution. 470 U.S. 821, 835 (1985). In Chaney, inmates on death row
sued to require the Food and Drug Administration (“FDA”) to take
enforcement action to prevent drugs from being used in lethal injections.
Id. at 823–24. The FDA refused to act, contending it had inherent
discretion not to act. Id. The plaintiffs argued that the use of “shall” in
the statute mandated “criminal prosecution of every violator of the Act.”
Id. at 835. But the Court found “no indication in case law or legislative
history that such was Congress’ intention in using this language, which
is commonly found in the criminal provisions of Title 18 of the United
States Code.” Id. The Supreme Court was “unwilling to attribute such a
sweeping meaning to this language.” Id. Thus, the Court held that the
59
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12706
Page 60 of 87
FDA’s decision not to act was an unreviewable act of prosecutorial
discretion. Id. at 837–38.
Although the Supreme Court in Chaney held that there was a
presumption that agency decisions not to take enforcement actions are
unreviewable, the Court also said that “the presumption may be rebutted
where the substantive statute has provided guidelines for the agency to
follow in exercising its enforcement powers.” Id. at 832–33. Thus, the
presumption can be overcome if Congress indicates that a decision or
action is not discretionary. Analysis of the structure and legislative
history of the Safe Drinking Water Act leads the Court to conclude that
Section 1414 creates mandatory enforcement duties for the EPA.
The term “shall” in a statute generally denotes a mandatory duty,
Alabama v. Bozeman, 533 U.S. 146, 153–54 (2001), but use of “shall” is
not conclusive, because sometimes “shall” is the equivalent of “may.”
Richbourg Motor Co. v. United States, 281 U.S. 528, 534 (1930). The
question of whether “shall” commands or merely authorizes action is
determined by the objectives of the statute. Escoe v. Zerbst, 295 U.S. 490,
493 (1935).
60
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12707
Page 61 of 87
First, comparing Sections 1431 and 1414 reveals that the EPA’s
alleged conduct under Section 1414 may not be shielded by the
discretionary function exception. Unlike Section 1431 which sets out
actions the Administrator “may” take, the language under Section 1414
uses the term “shall.” Moreover, Section 1414 does not contain the same
parenthetical “(but shall not be limited to)” as Section 1431(a). In Section
1414, when the Administrator finds that a state is not complying with
the SDWA, the statute makes clear that the Administrator has two
options: issue an order or commence a civil action. There are no other
options. And this makes good sense. Afterall, it is our nation’s drinking
water that is the subject of this law.
The legislative history of the Safe Drinking Water Act also supports
this view. The SDWA was first amended and reauthorized in 1986. At
that time, Congress amended Section 1414, changing the verb
authorizing enforcement action from “may” to “shall”:
(2) Section 1414(a)(2) of the Safe Drinking Water Act is
amended by striking the words “he may commence a civil
action under subsection (b)” and substituting the following:
“the Administrator shall issue an order under subsection (g)
requiring the public water system to comply with such
regulation or requirement or the Administrator shall
commence a civil action under subsection (b)”.
61
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12708
Page 62 of 87
Safe Drinking Water Act Amendments of 1986, S. 124, 99th Cong. §202
(1986). This textual change indicates the congressional intent to require
the EPA to bring enforcement actions under certain conditions.
Moreover, the Conference Report explained that this change to Section
1414 was to “require” the Administrator to take action:
The Senate bill amends section 1414 of the Act to . . . (2)
require the Administrator to either to issue an order or
institute a judicial action against a public water system
in violation when the delegated State authority does not
take appropriate enforcement action within 30 days of
notification.
H.R. Rep. No. 99-575, at 9451 (1986) (emphasis added).
Moreover, during the 1986 amendment, Congress added the EPA’s
thirty-day response timeline if a state had not acted in response to being
notified it was in violation of the SDWA:
(b) PROMPT FEDERAL ENFORCEMENT.—(1) Section
1414(a)(l)(B) of the Safe Drinking Water Act is amended to
read as follows: ‘(B) If, beyond the thirtieth day after the
Administrator’s notification under subparagraph (A), the
State has not commenced appropriate enforcement action. . .’
Safe Drinking Water Act Amendments of 1986, S. 124, 99th Cong. §202
(1986). The addition of a timeline and use of the term, “prompt federal
62
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12709
Page 63 of 87
enforcement” also signal the mandatory nature of Section 1414’s
enforcement actions. The changes indicate Congress’ desire for federal
oversight and prompt enforcement of the Safe Drinking Water Act.
In Burgess, Judge Parker found that Sixth Circuit precedent
supports the discretionary nature of Section 1414. However, the
discretion Judge Parker identified comes at an earlier point in the statute
and is not at issue in this analysis. For example, under Section 1414, the
EPA Administrator has discretion to decide what “advice and technical
assistance . . . may be appropriate to bring the system into compliance”
and what “the earliest feasible time[ ]” was to reach compliance. 42 U.S.C.
§ 300g-3(a)(1)(A). But, as set forth above, once the EPA found noncompliance with the SDWA, notified the State, and the State had not
“commenced appropriate enforcement action” within thirty days, the
EPA was to take mandatory action.
This mandate is what distinguishes the present case from Myers,
17 F.3d 890. In Myers, the Sixth Circuit held that inspectors from the
Mine Safety and Health Administration had discretion because their
statutory instructions followed an “‘if/then’ logical structure” that
required the inspectors to make preliminary assessments involving
63
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12710
Page 64 of 87
judgment prior to acting. Id. at 895. The court held that decision of
whether the “predicate condition exists” involved sufficient discretion to
satisfy the first prong of the discretionary function test even though the
outcome of the preliminary assessment mandated specific corresponding
next steps. Id. The Sixth Circuit said it was “[t]his requirement of an
antecedent assessment or determination presents the MSHA official or
inspector with a choice; does the condition exist or doesn’t it? This choice
is sufficient to satisfy the first prong of the [discretionary function
exception analysis].” Id. at 896. But the EPA’s conduct under Section
1414 statute is not like the MSHA inspectors’ conduct in Myers. Even
though some of Section 1414 had predicate conditions to be met, Plaintiffs
claim that those conditions had already been met and so the discretionary
part of the statute had already been fulfilled when the EPA notified the
MDEQ of non-compliance. New mandatory duties were triggered once
the MDEQ was notified and did nothing after thirty days.
The Sixth Circuit in Myers identified a key factual difference that
distinguishes the present case:
Plaintiffs do not contend, for instance, that MSHA inspectors
actually found safety violations in the Grundy mine but then
failed to take the required action. Rather, plaintiffs contend
that the MSHA inspectors should have found, but failed to
64
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12711
Page 65 of 87
find, the existence of certain safety violations and, if they had,
the deaths of these miners would have been prevented.
Id. at 897. Unlike in Myers, Plaintiffs are not suing the United States for
the EPA’s failure to identify safety hazards, but rather the failure to take
mandatory action once those hazards were identified. In fact, the Sixth
Circuit distinguished Myers from Collins v. United States, where the
Fifth Circuit held the discretionary function exception inapplicable to
claims arising when MSHA inspectors failed to follow the statute after
determining that the predicate condition had been met. Id. at 897 fn.7
(citing Collins, 783 F.2d at 1230–31) (“The [Collins] court correctly noted
that, once the initial assessment had been made, the MSHA officials had
an absolute duty to reclassify the mine and their failure to do so was not
a protected exercise of policy discretion.”) Here, Plaintiffs contend that
the EPA found violations of the SDWA and then failed to take required
action.
Myers does not and cannot stand for the proposition that if Congress
mandates action but provides an agency with two options, that this very
choice immunizes the agency when it chooses a third “option” not given
by Congress. Such a broad reading of Myers would serve to eviscerate
liability under the discretionary function exception to the FTCA any time
65
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12712
Page 66 of 87
Congress mandates more than one course of action. As the Sixth Circuit
said in Myers, “[t]he greatest limitation upon the government’s liability
under the FTCA is not, and was not intended to be, the discretionary
function exception. Rather, the principle limitation is that, for the
government to be liable, state law must provide for private liability under
similar circumstances.” Myers, 17 F.3d at 905. The rationale behind
excluding from immunity under the discretionary function exception
conduct which violates mandatory safety standards is obvious here. Once
Congress, having balanced economic, social, and political policy
considerations, adopts safety standards in the form of specific and
mandatory regulations or policy, employees do not have discretion to
violate these standards.
The Court concludes that, because relevant portions of Section 1414
require the EPA to take specific actions, the first prong of the
discretionary function exception test has not been satisfied by the United
States for the EPA’s alleged conduct under Section 1414. Because the
first prong has not been established, the Court need not address the
second prong. However, as explained below, even under the second prong,
the United States’ argument fails.
66
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
ii.
PageID.12713
Page 67 of 87
Prong Two: Whether the Challenged Actions were
Grounded in the Policy of the Regulatory Regime
The second prong of the discretionary function exception test asks
“whether that judgment is of the kind that the discretionary function
exception was designed to shield.” Gaubert, 499 U.S. at 322–23 (citations
omitted)
The
discretionary
function
exception
“protects
only
governmental actions and decisions based on considerations of public
policy,” Berkovitz, 486 U.S. at 537, and there is a “strong presumption”
that the second prong is satisfied upon finding that the first prong is
satisfied. A.O. Smith Corp., 774 F.3d at 365 (citing Gaubert, 499 U.S. at
324). The focus of the inquiry is not on the government employee’s
subjective intent in exercising discretion, but on the objective nature of
the actions taken and whether they are susceptible to policy analysis.
Gaubert, 499 U.S. at 324–25. Therefore, the Court must decide “if the
action challenged in the case involves the permissible exercise of policy
judgment.” Berkovitz, 486 U.S. at 537. When “the challenged actions are
not the kind of conduct that can be said to be grounded in the policy of
the regulatory regime,” the discretionary function exception is
inapplicable. Gaubert, 499 U.S. at 325.
67
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12714
Page 68 of 87
The United States argues that the EPA’s decisions about whether
and how to respond to the Flint Water Crisis are all susceptible to policy
analysis. The United States contends that the EPA was balancing
multiple and competing policy considerations during the Flint Water
Crisis, such as the SDWA’s goal of cooperative federalism, the
effectiveness of state and local authorities in protecting the health of
their citizens, and the short and long-term effects of any actions on the
relationship between the EPA and primacy State. (ECF No. 300,
PageID.8560–8561.)
Plaintiffs argue that the EPA’s decisions, in the face of continued
safety hazards, were not the kind of judgments that the discretionary
function exception was designed to shield. Specifically, Plaintiffs contend
that the EPA’s decisions not to act under Sections 14145 and 1431 of the
SDWA do not fall under the discretionary function exception. Further,
the EPA’s failure to warn Flint’s citizens about the hazards of drinking
and bathing in lead-tainted and bacteria-infested Flint River water and
As noted above, even though the Court concludes that the EPA’s actions
under Section 1414 were mandatory, the Court will analyze prong two in the
alternative, because under either prong, the United States cannot prevail on their
sovereign immunity defense.
5
68
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12715
Page 69 of 87
its failure to timely and adequately respond to citizen complaints were
not the types of decisions that the exception was designed to shield.
The EPA’s lack of regulatory action under Section 1414 and delayed
action under Section 1431 of the SDWA are not the kinds of “conduct that
can be said to be grounded in the policy of the regulatory regime.”
Gaubert, 499 U.S. at 325. The SDWA’s framework is one of cooperative
federalism, which authorizes the EPA to request information, take
independent enforcement actions, and revoke state primacy when states
do not implement the SDWA with the stringency required by federal law.
See, e.g., 42 U.S.C. § 300g–3; 40 C.F.R. §§ 141.82(i), 141.83(b)(7),
142.17(a)(2), 142.19, 142.30, 142.34. If a state is in violation of federal
drinking water standards, the EPA is empowered and required to
intervene. The EPA’s continued inaction in the face of an environmental
crisis is not the kind of conduct that is grounded in the policy regime of
the SDWA. As Judge Parker’s decision in Burgess highlights:
In passing the SDWA, Congress intended to leave the primary
responsibility for overseeing public water systems with the
States. However, Congress sought to set national standards
for compliance ‘to assure that water supply systems serving
the public meet minimum national standards for protection of
public health’ and to empower the federal government to
intervene if States fail in their primary responsibilities.
69
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12716
Page 70 of 87
Federalism and the efficient use of federal and state resources
were policy considerations that factored into devising the
regulatory scheme and establishing conditions for the federal
government’s intervention. Nevertheless, Congress expressly
directed the EPA to intervene under specified conditions. In
other words, having weighed varying policy interests,
Congress decided when federal intervention is necessary.
Burgess, 375 F. Supp. 3d at 815 (internal citations omitted). As the EPA
Office of Inspector General’s report makes clear, the EPA did not take
action that it was authorized to take and should have taken upon finding
that the City of Flint was in violation of several Federal Drinking Water
Standards. (Burgess, No. 17-cv-11218, ECF No. 60-1, PageID.2325–
2335.)
The EPA’s actions and inactions—after learning that the City of
Flint and the MDEQ were severely out of compliance, MDEQ and Flint
officials were lying to EPA staff, and Flint’s water was poisoning Flint’s
citizens—cannot be said to be grounded in, or calculated to advance, the
policies of the SDWA, or any reasonable or legitimate public policy. As
the OIG report concluded, “[t]he Flint water crisis demonstrates that
public health is not protected when EPA regional staff—with multiple
warning signs—do not use the agency’s SDWA authorities in conjunction
with EPA oversight tools.” (Id. at PageID.2334.)
70
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12717
Page 71 of 87
As Judge Parker found in Burgess, the EPA’s decisions in Flint
involved professional and scientific judgments, not multiple and
competing policy considerations. 375 F. Supp. 3d at 814. So, for example,
once there was a finding of lead levels dramatically over the federal limit
and the state was not taking appropriate action, under the SDWA, the
EPA should have intervened. Cf. Boler v. Earley, 865 F.3d 391, 404 (6th
Cir. 2017) (“The language of the SDWA centers on instructions to the
EPA to establish the requirements for national drinking water
standards. See 42 U.S.C. § 300g-1. Its provisions set out standards
identifying particular contaminants selected for regulation and
establishing maximum levels that limit the amount of those specified
contaminants permitted in public drinking water systems. See id. § 300g1(b). The statutory language also specifies the time frame for the EPA’s
promulgation of regulations, the use of science in the EPA’s
decisionmaking, and the technology by which public systems should
achieve compliance with the standards.”)
As the Ninth Circuit has found, “matters of scientific and
professional judgment—particularly judgments concerning safety—are
rarely considered to be susceptible to social, economic, or political policy.”
71
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12718
Page 72 of 87
Whisnant v. United States, 400 F.3d 1177, 1181–83 (9th Cir. 2005)
(explaining that the government’s duty to clean up toxic mold “involves
professional and scientific judgment, not decisions of social, economic, or
political policy”); see also Andrulonis v. United States, 952 F.2d 652 (2d
Cir. 1991) (federal scientist’s failure to warn of the hazards associated
with rabies vaccine did not implicate any policy of the federal agency); In
re FEMA Trailer Formaldehyde Prod. Liab. Litig., 583 F. Supp. 2d 758,
782–84 (E.D. La. 2008) aff’d in part sub nom. In re FEMA Trailer
Formaldehyde Prod. Liab. Litig. (Louisiana Plaintiffs), 713 F.3d 807 (5th
Cir. 2013) (concluding that FEMA’s response after learning of unsafe
levels of formaldehyde in temporary housing provided to hurricane
victims was guided by fear of litigation which was not a permissible policy
choice).
The Sixth Circuit’s decision in Anestis v. United States, 749 F.3d
520 (6th Cir. 2014), reflects the general principle that scientific and
professional judgments are not the types of decisions that are susceptible
to policy analysis. In Anestis, the court held that the “determination of a
healthcare professional or an in-take clerk as to the emergency state of a
patient would not involve a consideration of public policy” because it was
72
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12719
Page 73 of 87
a medical decision. Id. at 529. Similarly, the EPA’s conduct and inaction
under SDWA 1414 and 1431 involved matters of scientific and
professional judgment that were not susceptible to policy analysis.
The United States also argues that none of the cases related to
matters of scientific and professional judgement concern an agency’s
decisions on how to deal with a third party’s actions. (ECF No. 300,
PageID.8560.) It is true that these cases involve one government agency
tasked with making a professional determination. But that fact is not
dispositive here because as explained more fully in Part IV.A.iv, the EPA
was not just a third party. As the OIG report explains, “[t]he EPA retains
the authority and responsibility to oversee states with primacy over their
drinking water programs. The EPA is empowered and required to
intervene when states do not fulfill their responsibilities.” (Burgess, No.
17-cv-11218, ECF No. 60-1, PageID.2325.) One of the SDWA’s features is
that it allows the federal government to intervene when a local
government fails to protect its citizens from unsafe drinking water. See
42 U.S.C. § 300g–3; 40 C.F.R. §§ 141.82(i), 141.83(b)(7), 142.17(a)(2),
142.19, 142.30, 142.34 (detailing mandatory EPA intervention in the
form of notifications, advice, technical assistance, enforceable orders and
73
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12720
Page 74 of 87
inspections to bring water systems into compliance with federal
standards, and removal of primacy).
The United States contends that the Sixth Circuit’s decision in
Lockett v. United States, 938 F.2d 630 (6th Cir. 1991) is on point and
shows that the EPA’s decisions in Flint were discretionary. In Lockett,
the plaintiffs alleged that the EPA acted negligently in failing to initiate
a clean-up action upon discovery that a hazardous waste site was
contaminated with a dangerous substance, polychlorinated biphenyl
(“PCB”), which are chemicals subject to federal regulation under the
Toxic Substance Control Act (“TSCA”). Twenty plaintiffs lived near a
scrap yard which had electronic transformers that could produce high
levels of PCBs. The EPA learned that the site had detectable levels of
PCBs in 1981, but a later inspection did not reveal sufficient evidence to
show that PCBs were an issue. In 1986, after another field test revealed
high levels of PCB, the EPA took action to clean up and notify the public.
Plaintiffs filed suit for failure to warn or act earlier in 1981 when
detectable levels of PCB were first discovered. The EPA’s reasons for not
intervening were that it “lacked sufficient evidence” to find a safety
violation, it determined that further study was appropriate, and that
74
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12721
Page 75 of 87
there was another environmental risk at the time that required more
attention. Id. at 638. In reviewing the EPA’s policy considerations, the
court found them to be protected “discretionary decisions, based upon
‘judgment calls’ concerning the sufficiency of evidence of violations of
applicable regulations, the allocation of limited agency resources, and
determinations about priorities of serious threat to public health.”
Lockett, 938 F.2d at 639.
The United States argues that similar to Lockett, EPA Region 5
faced questions about the sufficiency of evidence to conclude that a
regulatory violation occurred in Flint, and also uncertainty about
whether the Lead and Copper Rule provided an unambiguous basis for
formal enforcement. The United States also argues that as in Lockett,
“the allocation of limited agency resources and determinations about
priorities were implicated for Flint, which is one of over 10,000 public
water systems under MDEQ’s jurisdiction in Michigan and additional
tens of thousands of water systems in states and tribes throughout
Region 5.” (ECF No. 300, PageID.8559.)
But Lockett is distinguishable. The situation in Flint was not just a
detected safety violation, but a public health crisis. In Lockett, the EPA
75
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12722
Page 76 of 87
did not intervene in 1981, in part, because although PCB levels were
detected, a later inspection did not reveal sufficient evidence to show that
the TSCA was violated. Lockett, 938 F.2d at 638. By contrast, in Flint the
EPA grew increasingly concerned and confident that the people of Flint
were at risk of lead poisoning throughout the spring and summer of 2015.
For example, in a June 2015 email from Del Toral to Rita Bair, the Region
5 Branch Chief of the Ground Water and Drinking Section, Del Toral
reported Flint’s alarming lack of corrosion control and lead levels, telling
Bair:
[T]he State is complicit in this and the public has a right to
know what they are doing because it is their children that are
being harmed. At a MINIMUM, the City should be warning
residents about the high lead, not hiding it telling them that
there is no lead in [the] water. To me that borders on criminal
neglect.
(Burgess, No. 17-11218, ECF No.53-6, PageID.1942.)
Moreover, the Inspector General for the EPA found that “[w]hile
Flint residents were being exposed to lead in drinking water, the federal
response was delayed, in part, because the EPA did not establish clear
roles and responsibilities, risk assessment procedures, effective
communication and proactive oversight tools.” (Burgess, No. 17-cv-11218,
76
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12723
Page 77 of 87
ECF No. 60-1, PageID.2306.) Unlike Lockett, here there is a genuine
issue of material fact that the EPA’s inaction during crucial moments in
the Flint Water Crisis was not due to policy considerations, but rather
due to mismanagement and a breakdown in communication. Painting
policy considerations over these actions with a broad brush does not turn
them into the type of decision that Congress intended to shield under the
discretionary function exception. Such “challenged actions are not the
kind of conduct that can be said to be grounded in the policy of the
regulatory regime,” Gaubert, 499 U.S. at 325, where the regulatory
regime is the Safe Drinking Water Act.
The EPA’s responses to citizen complaints are not shielded by the
discretionary function exception. As Judge Parker’s decision in Burgess
concluded, even though the EPA’s decision about “whether and how to
respond to citizen complaints was discretionary,” “once the Government
decided to act, it was required to do so without negligence.” Burgess, 375
F. Supp. 3d at 816 (citing Wysinger v. United States, 784 F.2d 1252, 1253
(5th Cir. 1986); Whisnant, 400 F.3d at 1182–83)); cf. Indian Towing Co.
v. United States, 350 U.S. 61, 69 (1955) (explaining that the “Coast Guard
need not undertake the lighthouse service. But once it exercised its
77
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12724
Page 78 of 87
discretion to operate a light on Chandeleur Island and engendered
reliance on the guidance afforded by the light, it was obligated” to do so
without negligence).
Within a month of the switch of the water source to the Flint River,
the EPA started receiving citizen complaints from Flint residents about
the water. (Burgess, No. 17-cv-11218, ECF No. 37-5, PageID.965–968.)
Jennifer Crooks, the EPA Program Manager who was responsible for
hearing complaints on behalf of EPA, attested that she had never
received as many citizen complaints since she started working for EPA
in 1987 as she did from Flint residents after the water switch. (Id.) She
received around 100 complaints overall. (Id. at PageID.967.) The EPA
began responding to some citizen complaints, but did so in an untimely
manner, given the alarming content and number of complaints. When the
EPA did respond, it did so in ways that downplayed the urgency of the
situation in Flint and may have induced detrimental reliance on the EPA.
For example, in responses to citizen complaints in February and March
2015, the EPA’s Water Division Director reported that despite the City
of Flint’s earlier violations of the SDWA, that the City was now in
78
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12725
Page 79 of 87
compliance. (Burgess, No. 17-cv-11218, ECF No. 53-11, PageID.1958;
ECF No. 53-13, PageID.1962.)
As the court found in In re FEMA Trailer Formaldehyde Products
Liability Litigation, the discretionary function exception did not apply to
Plaintiffs’ claims regarding FEMA’s alleged negligent conduct in
responding to complaints and concerns of formaldehyde in the temporary
housing provided after Hurricane Katrina. 583 F. Supp. 2d at 783 (“[L]ike
in the Indian Towing case, the government undertook in its discretion to
provide a service . . . [and its] decision to, at least for a time, ignore
potential health concerns associated with this alternative housing [ ] did
not involve any permissible exercise of policy judgment.”) Although In re
FEMA Trailer Formaldehyde Products Liability Litigation is out of
circuit, the decision is instructive because both cases involve the
government’s alleged negligent response to citizen complaints involving
large-scale public health concerns. Upon consideration of these cases and
the facts as set forth above, the Court finds there are genuine issues of
material fact as to whether the EPA’s actions in responding to citizen
complaints were grounded in policy.
79
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12726
Page 80 of 87
As for the EPA’s failure to warn citizens, the United States argues
that under Sixth Circuit precedent, the EPA’s decisions involved policy
considerations and are therefore shielded. It is true that the following
types of decisions “are generally shielded from tort liability by the
discretionary function exception: (1) ‘the proper response to hazards,’ (2)
‘whether and how to make federal lands safe for visitors,’ and (3) ‘whether
to warn of potential danger.’” Edwards v. Tennessee Valley Auth., 255
F.3d 318, 324 (6th Cir. 2001) (quoting Rosebush, 119 F.3d at 443). Yet the
Sixth Circuit has also cautioned that to the extent that their “opinions
may be read to suggest that failure-to-warn claims categorically satisfy
the discretionary function exception . . . we decline to endorse that
position.” A.O. Smith Corp., 774 F.3d at 369. The discretionary function
exception analysis is “ad hoc” because it “depends on the facts of each
case.” Graves v. United States, 872 F.2d 133, 137 (6th Cir. 1989) (citation
omitted).
Events like the Flint Water Crisis are rare in the United States, let
alone within the Sixth Circuit. To find adequate analogies in legal
precedent, the Court must look to out-of-circuit precedent for guidance.
The First Circuit recognized that there are some decisions that “may pass
80
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12727
Page 81 of 87
a threshold of objective unreasonableness such that no reasonable
observer would see them as susceptible to policy analysis.” Hajdusek v.
United States, 895 F.3d 146, 152 (1st Cir. 2018). Likewise, the Third
Circuit noted that federal officials “could be aware of a safety hazard so
blatant that its failure to warn the public could not reasonably be said to
involve policy considerations.” S.R.P. ex rel. Abunabba v. United States,
676 F.3d 329, 340 n.6 (3d Cir. 2012). Contrary to what the United States
argues, these cases do not contradict Sixth Circuit precedent (ECF No.
300, PageID.8560), because the Sixth Circuit has not yet decided a case
where a safety hazard was so blatant that any policy considerations
mustered in support of inaction were unreasonable.
iii.
Conclusion
The Court finds that the United States has not carried its burden
to show that the EPA’s actions and inactions in Flint pursuant to the
SDWA Sections 1414 and 1431 are shielded by the discretionary function
exception. Further, the EPA’s failure to warn Flint citizens about the lead
and dangerous bacteria that was in their water for months, and its
allegedly negligent responses to citizen complaints, are not the kinds of
81
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12728
Page 82 of 87
decisions that the discretionary function exception was designed to
shield.
C.
Misrepresentation Exception
The United States contends that to the extent Plaintiffs’ claims
involve reliance on the EPA’s misrepresentations, these claims are
barred under the FTCA’s “misrepresentation” exception. 28 U.S.C. §
2680(h). Such immunity would bar claims arising out of negligent as well
as willful misrepresentation. United States v. Neustadt, 366 U.S. 696, 702
(1961). As Judge Parker explained in Burgess, this exception is confined
most often to misrepresentations that are of a financial or commercial
character. Burgess, 375 F. Supp. 3d at 817. Here, as in Burgess, Plaintiffs
do not allege that the EPA made any commercial or financial
misrepresentations, and so the exception does not apply.
The United States argues that the misrepresentation exception is
not limited to invasions of commercial or financial interest. (ECF No. 300,
PageID.8574.) The Sixth Circuit has not yet spoken on whether the
exception is so limited, but in this district, courts have held that the
misrepresentation exception does not apply when the misrepresentation
is not commercial or financial in character. See Burgess, 375 F. Supp. 3d
82
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12729
Page 83 of 87
at 817; Vogelaar v United States, 665 F. Supp. 1295, 1304 (E.D. Mich.
1987) (holding that the misrepresentation exception does not apply when
a plaintiff does not claim a financial or commercial loss).
The Supreme Court in Block explained that a misrepresentation
claim, as traditionally understood, has “been identified with the common
law action for deceit, and has been confined very largely to the invasions
of interests of a financial or commercial character, in the course of
business dealings.” Block v. Neal, 460 U.S. 289, 296 n.5 (1983) (citations
and internal quotation marks omitted). This observation tracks a
comparable footnote in Neustadt, 366 U.S. at 711 n. 26. Both of these
Supreme Court cases deal with misrepresentations relied upon by
plaintiffs to their financial detriment.
The Supreme Court has not clarified whether the scope of the
exception is limited to financial or commercial misrepresentations, and
circuit courts “have reached discordant answers.” Carter v. United States,
725 F. Supp. 2d 346, 357 (E.D.N.Y. 2010). In Kim v. United States, for
example, the Ninth Circuit explicitly rejected a plaintiffs’ argument that
the misrepresentation exception was limited to those “seeking to recover
for economic loss suffered as a result of a commercial decision the plaintiff
83
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12730
Page 84 of 87
made in reliance on a government misrepresentation.” 940 F.3d 484,
492–93 (9th Cir. 2019) (explaining that “[o]ur cases impose no such
limitation.”); see also Reynolds v. United States, 643 F.2d 707, 712 (10th
Cir. 1981) (“[t]he ‘misrepresentation’ exception of 28 U.S.C. s 2680(h) has
been broadly construed to include false representations of any type.”).
Even if the misrepresentation exception is limited to commercial
and financial injuries, however, Plaintiffs’ claims are not vulnerable to
this exception. As Judge Parker found, “the gravamen of Plaintiffs’
complaint is that the EPA was negligent in its performance of operational
tasks, that being to respond to residents’ complaints and provide them
with guidance.” Burgess, 375 F. Supp. 3d at 817. Here too, Plaintiffs
argue the EPA’s misrepresentations are not essential to their negligence
claims. (ECF No. 305, PageID.9928.) As set forth above, even though the
EPA was not required to respond to citizen complaints, once it undertook
the duty to respond, it was required to do so without negligence. Indian
Towing Co. v. United States, 350 U.S. 61, 64–65 (1955) (“[I]t is hornbook
tort law that one who undertakes [a duty] and thereby induces reliance
must perform his ‘good Samaritan’ task in a careful manner.”).
84
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12731
Page 85 of 87
The Supreme Court has held that where the misrepresentations
alleged are “not essential” to an otherwise actionable claim, the exception
will not bar that claim. Block, 460 U.S. at 296–98. For example, the
plaintiff in Block contracted with a builder to construct her house
according to Farmers Home Administration (“FmHA”) specifications. A
FmHA representative inspected the work and reported that it complied
with the FmHA, even though the home was defective. Plaintiff later sued
FmHA for the cost of repairs, and the Supreme Court held that the claim
was not barred by the misrepresentation exception. Id. at 297. The Court
found that the claim arose out of negligent supervision rather than being
misled
by
an
inspection
report,
and
that
“the
Government’s
misstatements [were] not essential to plaintiff’s negligence claim.” Id. at
297–98.
Similarly, Plaintiffs’ claims are about negligence in inspection and
oversight. Plaintiffs allege that the EPA acted negligently when it
responded to citizen’s complaints about Flint’s water—in particular,
when the EPA reassured citizens that the EPA was providing oversight
and that Flint and the MDEQ were providing safe drinking water. But
the EPA’s misstatements to Flint citizens are not essential to Plaintiffs’
85
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12732
Page 86 of 87
claims, which are about negligence. In Neustadt, the Court took care to
distinguish the case before it from Indian Towing Co. v. United States,
350 U.S. 61 (1955), “which held cognizable a Torts Act claim for property
damages suffered when a vessel ran aground as a result of the Coast
Guard’s allegedly negligent failure to maintain the beacon lamp in a
lighthouse.” Neustadt, 366 U.S. at 711 n.26. The Court explained that the
claim in Indian Towing did not arise out of misrepresentation “any more
than does one based upon a motor vehicle operator’s negligence in giving
a misleading turn signal.” Id. To the extent that the EPA’s
misrepresentations contributed to Flint citizens’ false sense of security
in, and reliance on their government, this fact is tragic, but not essential
to Plaintiffs’ claims here.
V.
Conclusion
The United States’ motion to dismiss Plaintiffs’ complaint is
DENIED.
IT IS SO ORDERED.
Dated: August 26, 2020
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
86
Case 5:17-cv-10164-JEL-MKM ECF No. 318 filed 08/26/20
PageID.12733
Page 87 of 87
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on August 26, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
87
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?