OPINION AND ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS
Three organizations advocating on behalf of the citizens of Flint, Michigan, and a Flint resident, have turned to the federal courts for relief from the hardship visited on the population caused by the mishandling of the City’s water treatment and distribution system. The targets of their lawsuit are the Michigan treasurer and members of the Flint Receivership Transition Advisory Board (RTAB) (the State defendants), and the City of Flint and its city administrator (the Flint defendants). Both defendants have filed motions to dismiss, arguing, among other things, that the federal district court should not, or cannot, get involved, and the plaintiffs should be content with the remedial course charted by the Environmental Protection Agency. The Court disagrees. For reasons explained below, the Court believes that it should not defer to the EPA’s “primary jurisdiction” to address the plaintiffs’ complaints, the lawsuit is not a disguised appeal of the EPA’s January 2016 order, the relief the plaintiffs seek is, in the main, prospective and the Eleventh Amendment does not bar this lawsuit against the State defendants, the individual members of the RTAB are proper defendants under the Safe Drinking Water Act (SDWA) because they exert control over the financial decisions affecting the operation of the Flint water system, and the complaint states viable claims for relief. The motions to dismiss will be denied.
I.
According to the allegations in the complaint, the water in Flint, Michigan is not safe to drink and has not been safe to drink since April 2014. The plaintiffs allege that in November 2011, in response to Flint’s budget deficit and mounting debt, Governor Rick Snyder declared a financial emergency in the city and appointed an emergency manager to take over and run the city’s operations. In order to save the city money, the plaintiffs contend, the emergency manager switched the city’s drinking water source from Lake Huron to the Flint River, a water source known to be contaminated by nearby industries. The city and state officials allegedly failed to follow the federal requirements for treating and testing drinking water for lead under the SDWA.- The plaintiffs maintain that the caustic Flint River water corroded the city’s aging metal pipes and destroyed the protective coating that had formed over many years, causing lead to leach into the drinking water. The plaintiffs maintain that even though the defendants have stopped using the Flint River as the city’s drinking water source in October 2015, the
The complaint sets forth the plaintiffs’ view of the political history that emerged as a result of Flint’s financial travails. In November 2011, the City of Flint was put into a state-controlled receivership. Local government officials were stripped of authority in favor of state-appointed personnel. Between November 2011 and April 2015, Flint had four successive emergency managers, who were vested with broad powers to address the city’s financial emergency, including authority over the city budget. In early 2015, the emergency manager gave defendant Natasha Henderson full authority to direct and supervise the day-to-day operations of the city, including authority to direct the head of the Department of Public Works and manage the operations of the water system. Flint’s Utilities Department is responsible for the supply and maintenance of water services, which reports to the Department of Works. The plaintiffs maintain that defendant Henderson has directed the operation of the water system, managed the purchase of water meters, plumbing supplies, and chemicals to treat Flint River water at the treatment plant. She also allegedly decided that Flint could enter.into a contract with the consultants to provide design, procurement, and construction services to the Flint water treatment plant.
On April 28, 2015, Governor Snyder removed the emergency manager and replaced him with an appointed Receivership Transition Advisory Board to continue to manage the city’s affairs along with the city officials for the duration of the receivership. The plaintiffs contend that since its inception, the RTAB has made a number of decisions directing the operation of the Flint water system. In August 2015, the RTAB allegedly decided that Flint could enter into a multi-year environmental monitoring services contract with a testing laboratory and decided to allow Flint to purchase chemicals to be used to treat water at the water treatment plant. It further decided whether Flint could purchase water 'distribution pipe repair parts for use in maintaining the water system.
The plaintiffs allege that the RTAB is the primary, but not exclusive, state entity that managed Flint’s operations during the receivership. They also allege that the State Treasurer, defendant Nick A. Khouri, manages aspects of the city’s operations. For example, the' Mayor and the City Council cannot amend the budget that was adopted by the emergency manager without approval of both the RTAB and the State Treasurer. The plaintiffs further maintain that the State Treasurer exerts control over the Flint water system by having the final authority to decide whether the water system can make large operational changes that involve budget amendments. In early 2014, the State Treasurer decided whether Flint could expend more than $8 million to upgrade its water treatment plant to allow Flint to use the Flint River as its primary drinking water source. And, the plaintiffs allege, the State Treasurer exercised final decision-making power over the water system’s choices about where to get its drinking water. The plaintiffs allege that the Mayor and the City Council were stripped of all authority except as specifically authorized in writing by the emergency manager prior to the elimination of the position last spring.
The plaintiffs allege that in March 2013, Flint’s City Council voted to join the Kar-
The problem, the plaintiffs contend, was that the City of Flint had not treated its own water on a regular basis for nearly fifty years. And it had never undertaken the analysis required by the SDWA to identify and understand how a water system optimizes corrosion control treatment for drinking water. The plaintiffs allege that in 2011, outside consultants for the city analyzed whether the Flint River could be used as the city’s permanent primary source of drinking water. The consultants allegedly concluded that it would require about $50 million in upgrades to the equipment and systems to assure reliable and safe drinking water to customers. Nonetheless, the plaintiffs allege, the water system was not upgraded with all of the recommended improvements in advance of distributing the Flint River water to customers’ homes in 2014. And the water was distributed without any treatment to reduce its corrosivity and to minimize the leaching of lead from the pipes and solder into the drinking water.
The plaintiffs allege that Flint residents began raising concerns about the safety of their drinking water nearly two years ago. However, government officials dismissed their concerns and insisted that the water was safe to drink. The state officials allegedly disregarded researchers’ findings that the water contained dangerously high levels of lead. The plaintiffs allege that the damage done.to the city pipes from the Flint River water means that lead will continue to contaminate Flint’s drinking water unabated.- The ongoing contamination, the plaintiffs allege, poses an ongoing health risk to city residents and in particular young children, who are the most vulnerable to the effects of lead.
On October 1, 2015, the plaintiffs petitioned the United States Environmental Protection Agency (EPA) to issue an emergency order in response to Flint’s water crisis as authorized by the SDWA. On January 21, 2016, the EPA issued an Emergency Administrative Order (EPA Order) directing Flint and the State of Michigan to take certain steps to begin to address the crisis, including providing certain information to the public on a website and to the EPA, planning for optimization of water treatment to control corrosion, and retaining personnel qualified to ensure compliance with the SDWA’s requirements. The purpose of the EPA Order was to “make sure” that the defendants take “actions to protect public health... immediately.”
The plaintiffs filed the present action on January 27, 2016 alleging violations of certain federal regulations enacted under the Safe Drinking Water Act, 42 U.S.C. § 300f et seq. They bring four separate claims: (1) Violations of the SDWA’s' requirement to operate and maintain optimal corrosion control treatment, 40 C.F.R. §§ 141.81.82; (2) violations of the SDWA’s requirements for monitoring tap water for lead, 40 C.F.R. § 141.86; (3) violations of the SDWA’s reporting requirements, 40 C.F.R. § 141.90; and (4) violations of the SDWA’s notification requirements, 40 C.F.R. § 141.85. The plaintiffs are seeking a judgment declaring that all of the defendants are in violation of their obligations under the SDWA and its implementing regulations. They also ask to enjoin the defendants from ongoing and future violations of the SDWA and its implementing regulations,. ordering the defendants to
Upon filing, the case was assigned to another judge in this district, who disqualified himself at the defendants’ request on April 26, 2016. The defendants responded to the complaint with motions to dismiss under Federal Rule of Civil Procedure 12(b)(1) & (6). This Court heard oral arguments on those motions on May 13, 2016.
II.
A.
The Flint defendants argue in their motion to dismiss that this Court lacks subject matter jurisdiction because the plaintiffs in reality are seeking review of a final order issued by the EPA, which must be taken to a circuit court, not a district court. They invoke Federal Rule of Civil Procedure 12(b)(1), which “provides for the dismissal of an action for lack of subject matter jurisdiction.” Cartwright v. Garner,
On January 21, 2016, the EPA’s Office of Enforcement and Compliance Assurance issued an emergency administrative order, in which it found that the “Respondents” the City of Flint, the Michigan Department of Environmental Quality, and the State of Michigan had operated the Flint Water System in such a way as to introduce contaminants into the system that “presented] an imminent and substantial endangerment to the health of persons” who had a right to assume that the water was safe for human consumption. EPA Emergency Admin. Order ¶¶ 45, 33 (Jan. 21, 2016). The EPA then ordered the Respondents to engage in certain reporting and information disclosure requirements, respond to the Flint Task Force recommendations, and comply with various water treatment obligations. The EPA also directed the Respondents to submit a plan to address corrosion control and water quality parameters, and it prohibited the transition to a new water source unless certain conditions had been fulfilled. The parties bound by the EPA’s order are the “Respondents and their officers, employees, agents, successors and assigns.” Id. ¶ 65. The order was “a final agency action by EPA.” Id. ¶ 74.
The Flint deféndants argue that the plaintiffs’ complaint is an implicit request for judicial review of the EPA Order, and therefore this Court lacks subject matter jurisdiction, because under the SDWA a petition for judicial review of a final action by the Administrator of the EPA can only be reviewed by the circuit court in which the petitioner resides. They reason that granting any of the relief requested by the plaintiffs would necessarily differ from that of the EPA and would be substituting
Congress has allocated the responsibility for reviewing EPA actions under the SDWA among the various circuit and district courts. A final EPA action under that Act “may be filed in the circuit in which the petitioner resides or transacts business which is directly affected by the action.” 42 U.S.C. § 300j-7(a)(2). That statute, however, does not directly answer the question of this Court’s subject matter jurisdiction.
Subject matter jurisdiction refers to “the courts’ statutory or constitutional power to adjudicate'the case.” Steel Co. v. Citizens for a Better Env’t,
The plaintiffs filed the present action more than 60 days after giving notice of the alleged violations to the relevant parties and no civil actions have commenced by the Administrator of the EPA, the Attorney General, or the State of Michigan against the Flint defendants. The plaintiffs say that Jones v. City of Lakeland, Tennessee,
The Flint defendants acknowledge that the SDWA, 42 U.S.C. § 300j-8(a)(l), authorizes citizen-suits. Nonetheless, they insist that citizen-suits are prohibited by 42 U.S.C. § 300j-8(e) when the suit amounts to judicial review. In fact, that statute explicitly prohibits judicial review of agency actions “except as provided in section 300j-7 of this title.” 42 U.S.C. § 300j-8(e).
That distinction is not persuasive. Although the Clean Water Act does not contain an express provision for judicial review of EPA compliance orders, compliance orders issued by the EPA are reviewable in district courts under the Administrative Procedure Act, 5 U.S.C. § 500 et seq. Sackett v. E.P.A.,
The defendants point out that the Sixth Circuit recently provided guidance when an action constitutes judicial review in Mokdad v. Lynch,
City of Tacoma is distinguishable on a number of bases. For one, the plaintiffs are not a party to an action between the EPA and the City of Flint. Nor are the plaintiffs identified as “Respondents” in the EPA’s emergency order. Moreover, the plaintiffs are not subject to the EPA Order and are not asking for relief from the EPA Order. The plaintiffs are not seeking to enjoin the EPA Order either explicitly or implicitly. See F.C.C. v. ITT World Commc’ns, Inc.,
The Sixth Circuit used the concept of “inescapable intertwinement” as an aid in determining whether a lawsuit was barred by an exclusive jurisdiction provision in a statute governing appeals of administrative agency orders. Citing precedent from other circuits, the court stated that “‘[a] claim is inescapably intertwined [with an agency order] if it alleges that the plaintiff was injured by such an order and that the court of appeals has authority to hear the claim on direct review of the agency order.’” Ibid, (quoting Merritt v. Shuttle, Inc.,
The plaintiffs’ present suit does not amount to an appeal of a final determination by the EPA. The relief they seek may parallel the EPA’s directives to .the Flint and Michigan respondents, and may augment those orders. And their action is wholly collateral to the SDWA’s review provisions. The Court has subject matter jurisdiction over this suit under 42 U.S.C. § 300j-8(a), unaffected by section 300j-7 or section 300j-8(e).
B.
The state defendants make a related argument: that the Court should abstain from adjudicating the complaint and defer to the EPA under 'the doctrine of primary jurisdiction. Under that doctrine, a court may stay or dismiss a proceeding if it finds that the matter lay within the primary jurisdiction of an administrative agency to allow the parties the reasonable opportunity to seek an administrative ruling. United States v. Haun,
An analysis of abstention requests must begin with the observation
The state defendants argue that this case involves complex factual and scientific questions that are outside the Court’s conventional experience, but that does not appear to be the case. The plaintiffs are seeking a declaratory judgment that the defendants violated the SDWA. That determination does not require reviewing environmental impact reports or considering the content of lead in the drinking water. It merely requires determining whether the defendants complied with the statute, which is well within the Court’s expertise. Furthermore, the injunctive relief in this case focuses on obtaining clean drinking water for the residents of Flint. Whether such relief requires the defendants to supply water filters to every Flint resident or replace all of the lead service lines, the expertise required is no more than inquiring into whether the lead levels in the water are above or below the prescribed amount, and what remedial measures may suffice to cause compliance. It may be that the lead service lines can be made safe again through proper water treatment and all that is needed is temporary injunctive relief to allow time for that to occur. “A federal court may not abdicate its adjudicative duty simply because an action sounds an administrative tone.” Haun,
The state defendants rely on Harding-Wright v. District of Columbia Water and Sewer Authority, 04-00558 (D.C. 2004). That case is similar in many ways to this one. In Harding-Wright, the District of Columbia Water and Sewer Authority (WASA) made a change in its water treatment that resulted in increased levels of lead in the drinking water. Harding-Wright, Ex. 1 at p. 5. To help alleviate the harm, WASA and the EPA worked on a series of interim measures to ensure the safety of drinking water, such as making an interim water supply available and making certified water filters available to the 23,000 homes that had been affected by the high levels of lead in the drinking water. Id. at 10. The Harding-Wright court granted in part the defendant’s motion to dismiss because it found that fashioning an interim remediation plan independent of what the EPA already required was better left to the expertise of the EPA. Id. at 20. Furthermore, the plaintiffs were asking the court to order the defendants to distribute water filters to a greater number of residents than had already been required under a consent administrative order, and would therefore result in inconsistent judgments. Id. at 22.
Harding-Wright is informative; however, the EPA had already entered an Administrative Order for Compliance on Consent that mandated replacement of some of the-lead service lines and the provision of water filters to 23,000 affected homes.
The state defendants also argue that EPA proceedings have begun and they have issued a compliance order, which would weigh in favor of staying the current proceeding. The plaintiffs respond that there is no decision pending with the EPA that would be relevant to this case. The plaintiffs have the better argument. In Haun, the Sixth Circuit explained that one of the reasons to stay a proceeding under the primary jurisdiction doctrine is to allow the parties the opportunity to seek an administrative ruling. Haun,
Finally, the state defendants argue that primary jurisdiction is often invoked when a plaintiff is seeking injunctive relief, because there is the greatest likelihood that a court’s order will interfere with an administrative agency’s proceedings. See B.H. v. Gold Fields Mining Corp.,
This does not appear to be a case that will require intricate fact finding or the need for special administrative expertise. Nor does there appear to be an administrative program that may be upset by the Court’s decisions. The plaintiffs are seeking to enforce their rights under the SDWA. The relief sought is both similar and different than what has been ordered in the EPA Order, but not conflicting. The state defendants have not shown, how such relief would be inconsistent with the EPA Order or would interfere with it in any way. Because federal judges “have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given,” United States v. Haun,
III.
The Flint defendants contend that the complaint fails to state a viable claim, because the plaintiffs ask for retrospective relief, which is unavailable under the SDWA. The state defendants make a similar argument, contending that because the plaintiffs are seeking retrospective relief, their claims are barred by the Eleventh Amendment. The state defendants ■ also contend that the complaint fails to state a claim for which relief can be granted
These arguments are based on Federal Rule of Civil Procedure 12(b)(6). “The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in the complaint are taken as true.” Rippy ex rel. Rippy v. Hattaway,
Under the new regime ushered in by Twombly and Iqbal, pleaded facts must be accepted by the court, but conclusions may not be accepted unless they are plausibly supported by the pleaded facts. “[B]are assertions,” such as those that “amount to nothing more than a ‘formulaic recitation of the elements’ ” of a claim, can provide context to the factual allegations, but they are insufficient to state a claim for relief and must be disregarded. Iqbal,
A.
All the defendants characterize the relief sought by the plaintiffs as “retrospective.” They insist that the replacement of lead service lines and mitigation of health and medical risks are measures to address past violations, and therefore the relief requested is retrospective. The plaintiffs recognize that retrospective relief is not available under the SDWA. But they characterize the relief they seek as prospective rather than retrospective. They argue that replacement of lead service lines and mitigating the health and medical risks amount to prospective relief because those measures address the ongoing violations by the defendants. And they contend that 42 U.S.C. § 300j-8(a) specifically authorizes district courts to enforce the SDWA’s various monitoring, reporting, public information, and treatment provisions.
“The purpose of the [Safe Drinking Water Act] is to assure that water supply systems serving the public meet minimum national standards for protection of public
Congress has empowered “[t]he United States district courts.. .to enforce in an action brought under this subsection any requirement prescribed by or under” the SDWA. 42 U.S.C. § 300j(a). Although the Sixth Circuit has not interpreted the scope of this provision, other circuits however have interpreted analogous language in the Clean Water Act to mean that “[t]he authority to ‘enforce’ an existing requirement is more than the authority to declare that the requirement exists and repeat that it must be followed.” Nat. Res. Def. Council v. Sw. Marine, Inc.,
The defendants do not fairly characterize the harm alleged by the plaintiffs. It is not, as the defendants would read it, the damage to the lead service pipes. Instead, the harm is the continued leaching of lead into the drinking water. To remedy that harm, replacement of all lead service pipes may be required. Indeed, the regulations contemplate such relief. The SDWA requires “water systems” to comply with regulations designed to control lead contamination in drinking water, known collectively as the Lead and Copper Rule. 40 C.F.R. §§ 141.80.91. The Lead and Copper Rule mandates that “[s]ystems that fail to meet the lead action level in tap samples taken pursuant to § 141.86(d)(2), after installing corrosion control and/or source water treatment (whichever sampling occurs later), shall replace lead service lines in accordance with the requirements of this section.” 40 C.F.R. § 141.84(a). Whether those remedial measures will be required in this case remains to be seen.
In all events, the plaintiffs are seeking relief consistent with the regulations. The plaintiffs allege that the corrosive water from the Flint River water destroyed the protective coating in the water system that was built up over a period of years. They also allege that corrosive water can damage water pipes irreversibly, necessitating replacement. They have stated a claim under 40 C.F.R. § 141.84(a). They also seek the mitigation of health and medical risks resulting from the alleged ongoing violations of the SDWA. Such relief also may be called for because, as the plaintiffs allege, the lead is continuing to leach into the drinking water supply. The relief the plaintiffs can fairly be characterized as prospective, and authorized by the SDWA.
B.
This holding also impacts the state defendants’ argument that the claims
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or subjects of any foreign State.” U.S. Const. Amend. XI. In general, the Eleventh Amendment immunizes state officials from suit in federal court. Pennhurst State Sch. & Hosp. v. Halderman,
As noted above, the remedies sought by the plaintiffs plainly are forward-looking. They do not seek an award of damages or other forms of compensation to redress past injuries. Instead, they seek to compel state officials to comply with federal law, a form of relief authorized under the Eleventh Amendment. Ex parte Young,
C.
The individual members of the RTAB also argue that they can not be sued in their official capacities, because an official capacity suit is tantamount to a suit against the entity itself, and the RTAB is immune from suit because it is a non-juridical entity. They contend that the legislation creating the RTAB supports the conclusion that the entity was not intended to be amenable to suit, and the entity has no legal means of raising funds for payment of a judgment.
That argument “ha[s] been consistently rejected by the courts.” Telespectrum, Inc. v. Pub. Serv. Comm’n of Kentucky,
D.
The state defendants also argue that they are immune from suit from the requirements of the SDWA because they are not responsible as a “supplier of water,” since they do not “own[ ] or operate[ ]
The term “operator” is not defined in the SDWA. 42 U.S.C. 300f(4)(A). However, the term is found in other environmental statutes, such as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Under CERCLA, “operator” is defined as “any person owning or operating” a facility. 42 U.S.C. § 9601(20)(A)(ii). The Supreme Court gave the term in CERCLA its “ordinary meaning” as “someone who directs the workings of, manages, or conducts the affairs of a facility.” United States v. Bestfoods,
The plaintiffs allege that the state defendants all had significant operational control over the Flint water system, including the decision to use the water from the Flint River and authorize expenditures to upgrade the water system in preparation for using Flint River water. The plaintiffs allege that the RTAB worked with the city officials to manage the city, that the city administrator had direct control over the water supply, and the State Treasurer made decisions that directly impacted the Flint water system.
The state defendants argue that they did not have the authority to exert operational control over the Flint water system. The significance of that reality, they say, lies in the fact that none of the state defendants have the authority to implement the relief the plaintiffs are requesting. However, the plaintiffs have alleged that the RTAB must authorize all contracts or purchases over $75,000, and the State Treasurer has the final decision-making authority over where Flint gets its drinking water and must approve any amendments to the budget. It is difficult to imagine how the .plaintiffs could obtain-the relief they request without the participation and cooperation coerced or otherwise of the state defendants.
Courts have found that the financial authority and level involvement as alleged by the plaintiffs here to be relevant under CERCLA on the question of operator liability. See K.C.1986 Ltd. P’ship v. Reade Mfg.,
IV.
The Court has jurisdiction over the plaintiffs’ claims under the Safe Drinking Water. Act. Those claims are not barred by the Eleventh Amendment. And the complaint states claims against all the defendants for which relief can be granted.
Accordingly, it is ORDERED that the defendants’ motions to dismiss [dkt. #22, 23] are DENIED.
It is further ORDERED that counsel for the parties shall appear before the Court for a status conference on August 3, 2016 at 3:00 p.m. to discuss adjudication of the plaintiffs’ motion for preliminary injunction and further case management.