Burgess v. United States

375 F.Supp.3d 796

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

v.UNITED STATES of America, Defendant.

William Thomas, and all 1,923 individuals identified in the Thomas FTCA administrative Complaint, Plaintiffs,

v.United States of America, Defendant.

Civil Case No. 17-11218

Civil Case No. 18-10243

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

Signed April 18, 2019

Beth M. Rivers, Cary S. McGehee, Michael L. Pitt, Pitt McGehee Palmer & Rivers, Royal Oak, MI, Cynthia M. Lindsey, Cynthia Lindsey & Associates, Julie H. Hurwitz, Kathryn Bruner James, William H. Goodman, Goodman and Hurwitz, P.C. Detroit, MI, Deborah A. LaBelle, Ann Arbor, MI, Emmy L. Levens, Jessica B. Weiner Cohen Milstein Sellers and Toll PLLC, Washington, DC, Shermane A. Sealey, Law Office of Shermane Sealey, Farmington Hills, MI, Teresa Ann Caine Bingman, Law Offices of Teresa A. Bingman, Okemos, MI, Theodore J. Leopold, Cohen Milstein Sellers & Toll, PLLC, Palm Beach Gardens, FL, Hunter Shkolnik, Napoli Shkolnik Law PLLC, New York, NY, for Plaintiffs.

Bethany J. Henneman, Eric Rey, Michael L. Williams, Sarah B. Williams, Thomas G. Ward, U.S. Department of Justice, Washington, DC, for Defendant.

OPINION AND ORDER

LINDA V. PARKER, U.S. DISTRICT JUDGE

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 The raw water drawn from the Flint River, processed through Flint's outdated and previously mothballed water treatment plant, was highly corrosive and not properly treated by the City's public works department.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

The Sixth Circuit recently described "[t]he harmful effects" from the switch in water sources as "swift" and "severe." Guertin v. State of Michigan , 912 F.3d 907, 915 (2019). Flint residents complained of foul smelling and tasting water, their hair began to fall out, they developed skin rashes, there were positive tests for E. coli, a spike in Legionnaires' disease, and an elevation in the blood lead levels of Flint's children. Id. Criminal and civil proceedings have followed to hold the many Michigan and Flint officials and employees and independent contractors legally responsible for this crisis. See, e.g., id. ; Mich. Dep't of Env. Quality v. City of Flint , 282 F.Supp.3d 1002, 1004 (E.D. Mich. 2017) (listing some of the cases). In the above-captioned lawsuits, groups of Flint residents are suing the United States for the Environmental Protection Agency's role under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 - 2680.¹

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

The impact on the health of the nearly 100,000 residents of the City of Flint remains untold. It is anticipated, however, that the injury caused by the lead-contaminated public water supply system will affect the residents for years and likely generations to come. While this Court will not decide today the issue of ultimate liability, it can today state with certainty that the acts leading to the creation of the Flint Water Crisis, alleged to be rooted in lies, recklessness and profound disrespect have and will continue to produce a heinous impact for the people of Flint.

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

I. Standard for Dismissal

The Government's motions to dismiss for lack of subject matter jurisdiction are filed pursuant to Federal Rule of Civil Procedure 12(b)(1). Where the defendant is raising a factual challenge to the existence of subject matter jurisdiction, as is the case here, the court must " ‘weigh the conflicting evidence to arrive at the factual predicate that subject-matter does or does not exist.’ " Wayside Church v. Van Buren Cty. , 847 F.3d 812, 817 (6th Cir. 2017) (quoting Gentek Bldg. Prods., Inc. v. Sherwin-Williams Co. , 491 F.3d 320, 330 (6th Cir. 2007) ). "[N]o presumptive truthfulness applies to the [plaintiff's] factual allegations" and the "court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts." Ohio Nat'l Life Ins. Co. v. United States , 922 F.2d 320, 325 (6th Cir. 1990).

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

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

The SDWA was enacted in 1974 "to assure that water supply systems serving the public meet minimum national standards for protection of public health."

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

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

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

(a) Notice to State and public water system; issuance of administrative order; civil action

(1)(A) Whenever the Administrator finds during a period during which a State has primary enforcement responsibility for public water systems (within the meaning of section 300g-2(a) of this title) that any public water system--

(i) for which a variance under section 300g-4 or an exemption under section 300g-5 of this title is not in effect, does not comply with any applicable requirement, or

...

he shall so notify the State and such public water system and provide such advice and technical assistance to such State and public water system as may be appropriate to bring the system into compliance with the requirement by the earliest feasible time.

(B) If, beyond the thirtieth day after the Administrator's notification under subparagraph (A), the State has not commenced appropriate enforcement action, the Administrator shall issue an order under subsection (g) requiring the public water system to comply with such applicable requirement or the Administrator shall commence a civil action under subsection (b).

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

(a) Actions authorized against imminent and substantial endangerment to health

Notwithstanding any other provision of this subchapter, the Administrator, upon receipt of information that a contaminant which is present in or is likely to enter a public water system or an underground source of drinking water, or that there is a threatened or potential terrorist attack (or other intentional act designed to disrupt the provision of safe drinking water or to impact adversely the safety of drinking water supplied to communities and individuals), which may present an imminent and substantial endangerment to the health of persons, and that appropriate State and local authorities have not acted to protect the health

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