May 31, 2019

M Live: AG claims bad advice from private companies caused Flint water crisis

By Laura McDermott for MLive.

FLINT, MI — Engineering consultants recommended changes in Flint’s water treatment that directly triggered the city’s water crisis, Attorney General Dana Nessel is claiming in an amended complaint and demand for jury trial against the companies.

Nessel, who put assistant state attorney generals in charge of the civil complaint against Lockwood, Andrews & Newnam and Veolia Water just two months ago, filed the amended complaint April 12. The complaint charges that two engineering companies caused the Flint water crisis due to repeated bad advice, including recommendations to dump large quantities of ferric chloride into the city’s water supply — a charge LAN immediately contested.

The companies “made multiple missteps by designing water treatment measures that made the water corrosive,” the amended Genesee County Circuit Court complaint says. “Those failures ultimately resulted in bacterial problems in Flint’s water, potentially dangerous disinfectant byproducts, the corrosion of the city’s water distribution system, and high lead levels.”

Problems with corrosion are “directly traceable to defendant LAN’s and Veolia’s recommendation to change from a sulfate-containing coagulant to a chloride-containing coagulant and their repeated recommendations to dump large quantities of ferric chloride into the city water and reduce alkalinity, thereby increasing the corrosivity of the water,” the complaint says.

An attorney for Veolia declined comment on the filing and said he had referred MLive-The Flint Journal’s request for comment to the company.

Wayne B. Mason, an attorney for LAN, said Nessel’s amended complaint “Merely restates the same old meritless allegations against LAN, which we have repeatedly denied.”

“It is clear from investigations and testimony in other cases that the Flint water issues were the direct result of decisions made by the state and the city and not by any third party. It is time to put politics aside and for the culpable parties to take responsibility for their actions,” Mason said in an email to The Journal.

The case against LAN, Veolia and other related companies was originally filed in 2016 by contract attorney Noah Hall on behalf of the state, but the case has been slow to progress. Nessel fired Hall after taking office this year, putting assistant prosecutors in her office in charge of the civil lawsuit assigned to Judge Richard Yuille.

Since that time, another attorney has filed a motion to disqualify state attorneys from pursuing the case because of potential conflicts of interest, saying in part that the Attorney General’s Office can’t pursue damages against others for the water crisis when it has defended the state’s actions related to the water crisis and minimized the fallout — charges Nessel’s office has denied.

Dan Olsen, a spokesman for the attorney general, said the new filing shows commitment to the case.

“While the original complaint was filed in August of 2016, no effort was made to move the case forward. Since bringing these cases back to the Attorney General’s Office to be handled by career assistant attorneys general, we are making progress and the defendants now have 45 days to answer this amended complaint,” Olsen said in an email to The Journal.

LAN, a Houston-based firm, was hired by a Flint emergency manager to prepare its water treatment plant to produce drinking water from the Flint River starting in April 2014. Less than a year later, a different emergency manager hired Veolia to study the city’s water quality issues after high levels of disinfectant byproducts put the city in violation of the Safe Drinking Water Act.

Veolia was the only company to respond to Flint’s solicitation of a proposal for a water quality consultant after it found itself in violation of the Safe Drinking Water Act in early 2015 for excess total trihalomethanes. In an initial assessment, the company assured residents that city water was safe to drink despite problems with sediment and discoloration.

Nessel’s amended complaint says the company submitted a bid to advise the city, knowing Flint has little money to spend but hoping to eventually take over management of Flint’s water department.

Although the company discovered early warning signs of lead in water at the University of Michigan-Flint, it “said nothing to the (Michigan Department of Environmental Quality), to the U.S. (Environmental Protection Agency), or to the public regarding its private concerns that Flint was beginning to experience a system-wide lead issue.”

Both companies recommended using more ferric chloride in city water and the city “followed both defendant’s professional advice,” the court filing says. “As a direct result, defendants caused the corrosion of Flint’s distributions system to occur, to continue, and/or worsen.”

LAN said in a statement that ferric chloride issues raised by the AG in the amended complaint are not new in the Flint water litigation.

“Just as they did on other issues, the city and state did not implement LAN’s findings as related to ferric chloride,” the company said. “Rather than accept responsibility for their actions, they seek to blame others who were not involved in the decision-making process.”

The complaint alleges professional negligence/malpractice, negligence, creating a public nuisance, unjust enrichment/restitution against LAN and Veolia, and fraud against Veolia as well.

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