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Defendants.
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the Settlement Agreement, Plaintiffs obtained new information that renders the
relief requested by Plaintiffs in this motion no longer necessary. For the first time,
and despite many prior requests to the City for the information, Plaintiffs obtained
Michigan predicting the likely number of lead and galvanized steel service lines in
Flint. Also after the hearing, the City provided Plaintiffs with new, revised
replacements.
conclusions in the City’s Paragraph 30 Report that (i) it is not reasonably likely
that there were more than 18,000 lead and galvanized steel service lines at eligible
households in Flint as of March 2017; and (ii) the Agreement’s $97 million in
the required excavations and replacements under the Agreement. See Settlement
Agmt. (Agmt.) ¶ 29, ECF No. 147-1. Although Plaintiffs still disagree with other
parts of the City’s analysis and projections, see infra pp. 8-9, in light of the new
1
Plaintiffs notified counsel for the City of their intent to withdraw this motion.
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Plaintiffs are themselves troubled that substantial judicial and party resources were
invested in resolving this matter. While Plaintiffs regret that the investment was
necessary, the dispute would not have arisen had the City timely produced
requests. Cf. Agmt. ¶ 118 (requiring the City to timely respond to Plaintiffs’
information requests).
thousands of excavations at homes for which City records indicate full copper
service lines, rather than at homes that are likely to have lead or galvanized steel
service lines. The City’s misfocus on excavating lines that are most likely not
by removing all lead and galvanized steel service lines in the City. The City’s
hazardous service lines means that, absent a course correction, at least hundreds of
lead and galvanized steel pipes will likely remain in the ground and in use after the
City completes its 18,000th excavation. Plaintiffs plan to promptly pursue the
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STATEMENT OF FACTS
On August 21, 2018, the Court heard argument and witness testimony
the conclusions in the City’s Paragraph 30 Report. See Notice of Mot. Hr’g, ECF
No. 182; Notice of Mot. Hr’g, ECF No. 178. At the hearing, Plaintiffs’ data
scientist, Dr. Stacy Woods, testified that the City failed to “use the data that it had
available to it” to make a “reliable,” statistically sound prediction about the likely
number of hazardous service lines in Flint. Aug. 21, 2018 Hr’g Tr. (Tr.)2 42:16-18;
Dr. Woods also explained the efficacy of using a statistical predictive model
to evaluate all the data available to the City to generate reliable predictions about
the number and locations of lead and galvanized steel service lines in Flint. Id. at
67:10-19; see Woods Decl. ¶¶ 18-20, ECF No. 166-3. She explained, however, that
she did not have data on all of the variables the City claimed would influence the
likelihood of finding lead and galvanized steel service lines. Tr. 64:5-15. For its
part, the City denied that it had access to any predictive model, including the
2
Relevant excerpts of the hearing transcript are attached as Exhibit 1 to this
Post-Hearing Brief.
3
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Schwartz Decl. ¶¶ 13, 16, 24-25. The Court indicated that if Plaintiffs obtained
questions in Paragraph 29, they could “present evidence” to further pursue their
The parties’ witnesses also testified about how the City is prioritizing
addresses for excavations. A few days before the hearing, the City produced a
spreadsheet reflecting the results of its 2018 excavations through July 31, including
information about the composition of each service line indicated by the City’s
historical records. Suppl. Chaudhary Decl. Exs. 1, 1-1, ECF No. 187-2. Although
Alan Wong, the manager of the City’s pipe replacement program, confirmed on
cross-examination that the City “reviews historical water card data before it
conducts an excavation,” Tr. 121:17-19, as of July 31, the City had nonetheless
showed full copper service lines, id. at 32:2–33:4. The City’s dataset shows that
records indicating full copper service lines have been correct more than 99% of the
time. 2d Suppl. Woods Decl. ¶¶ 4-5, ECF No. 187-3. In short, the City has made
what its witness called a “policy decision,” Tr. 124:18, 130:1-8, not to prioritize for
excavation those homes in Flint most likely to need service line replacements.
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II. Newly obtained analysis from the Schwartz and Abernethy model
e.g., Tr. 113:23–114:1, Plaintiffs were able to speak with Professors Eric Schwartz
and Jacob Abernethy after the hearing for the first time. Drs. Schwartz and
Abernethy confirmed that they had developed a statistical model in 2016 to predict
the presence of lead and galvanized steel service lines at homes across Flint, as
described in the attached declaration from Dr. Schwartz. Schwartz Decl. ¶ 12. Drs.
Schwartz and Abernethy also stated that in both 2017 and 2018 they provided the
model results to the City and offered to help the City use the model’s predictions to
guide its excavations. See id. ¶¶ 16, 19-25. But see Tr. 145:16–146:13 (statement
of the City’s counsel William Kim that the University of Michigan professors had
not provided the modeling data and algorithms to the City). Plaintiffs then
provided the professors with updated outcomes from the City’s 2018 excavations,
Drs. Schwartz and Abernethy ran their model with the updated data for the
subset of households in Flint with active water accounts (i.e., “replacement eligible
households,” see Agmt. ¶ 11). Schwartz Decl. ¶ 39. The model predicts that there
were likely 10,836 lead and galvanized steel service lines in Flint at replacement
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This did not end the inquiry, as Paragraph 29 of the Agreement also requires
the City to evaluate whether $97 million in available funding “can reasonably be
replacements. Agmt. ¶ 29. Using the cost assumptions in the Paragraph 30 Report,
Drs. Schwartz and Abernethy calculated that it will cost the City $72.9 million to
complete an additional 91573 excavations and replace 48094 pipes. Schwartz Decl.
¶¶ 51-52. Adding this figure to the $37.25 million the City spent as of February
2018, see Par. 30 Report 2, ECF No. 172-4, yields a total cost of more than $97
million. If that figure were accurate, it would trigger a requirement for the State to
seek additional funding for pipe replacements under Paragraph 32. Agmt. ¶ 32.
Following the hearing, however, the City informed Plaintiffs that their actual
costs in 2018 were dramatically lower than the costs predicted in the Paragraph 30
3
Plaintiffs’ cost calculations reflect the remaining required work as of the date
of the City’s Paragraph 30 Report (February 2018), notwithstanding that the City’s
excavations and pipe replacements (and thus expenditures) have been ongoing
since that time. As of February 2018, the City had conducted 8843 excavations.
Thus, as of that time, the City was required to complete an additional 9157
excavations (18,000 – 8843 = 9157). The City’s reported figure (9173) is based on
a subtraction error. Pls.’ Mot. to Enforce Settlement Agmt. (Mot.) 7-8 n.6, ECF
No. 166.
4
This figure (4809) reflects the difference between the model’s total predicted
number of lead and galvanized steel service lines at eligible households as of
March 28, 2017 (10,836), and the number of pipe replacements completed between
that date and date of the Paragraph 30 Report’s submission in 2018 (6027). See
Schwartz Decl. ¶ 41.
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Report. Compare Par. 30 Report 4 fig.1, ECF No. 172-4 (showing 2018-2019
Excavation” and $4985 per “Service Line Replacement”), with Tallman Decl. Exs.
pipe replacement). The City expects its excavation and replacement costs to remain
low for the duration of 2018 and into 2019. See Tallman Decl. Ex. C.
excavations and pipe replacements will cost using the City’s new cost figures.
Based on those revised cost numbers, the City will need roughly $53.1 million to
complete 9157 more excavations and 4809 pipe replacements. Schwartz Decl.
¶¶ 53-55. Adding this figure to the $37.25 million the City spent prior to 2018
yields a total projected cost of less than $97 million. Id. ¶ 55.5
Both of these budget projections assume that the City will (a) prioritize its
line so as to maximize its “hit rate” and uncover all 4809 remaining service lines
needing replacement; and (b) conduct only traditional excavations (not cheaper
These assumptions are important because, as discussed below, the City is not
presently prioritizing excavations at homes most likely to have lead and galvanized
5
$53,056,675 + $37,250,000 = $90,306,675 (less than $97 million).
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The professors’ new modeling confirms that the City is not conducting its
excavations at addresses for which the information available indicates the presence
of lead and galvanized steel service lines. Schwartz Decl. ¶ 60. To the contrary, the
data indicates that the City’s 2018 excavations found lead and galvanized steel
pipes at a lower rate than the City would have found if it were randomly
ARGUMENT
Based on the new information from the Schwartz and Abernethy model, and
the City’s newly revised cost estimates—both obtained after the hearing—
Plaintiffs no longer dispute the City’s conclusions that (i) it is reasonably likely
that fewer than 18,000 lead and galvanized steel service lines existed in Flint at
eligible households as of the Agreement’s execution; and (ii) the Agreement’s $97
completing the City’s excavation and pipe replacement obligations under the
conclusions in the City’s Paragraph 30 Report, nor a continuing need for the relief
and revise its Report to reflect a data-driven analysis. See Mot. 27-30.
This new information, however, has revealed a significant problem with the
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addresses where it should expect to find lead and galvanized steel service lines. See
supra pp. 4, 7-8. Instead, the City is conducting thousands of excavations where it
should expect to find—and more than 99% of the time does find—full copper
pipes. Supra p. 4. The City’s failure to excavate at those addresses most likely to
have pipes needing replacement explains why its actual “hit rate” for 2018 has
been so low (only 16% as of August 1). See Aug. 3, 2018 Wong. Decl. ¶ 10, ECF
No. 181-1. Indeed, the City’s failure to target lead and galvanized steel service
lines has artificially deflated its hit rate. See Tr. 33:22–34:13, 65:10-23;
The City’s approach is both troubling and puzzling, given its presumed
interest in promptly replacing all lead and galvanized steel lines. It also violates the
Agreement and undermines the parties’ central intent in executing it. See Tallman
Decl. Ex. F; City Defs.’ Resp. to Pls.’ Mot. to Enforce Settlement Agmt. 7, ECF
No. 157 (referring to replacement of all lead and galvanized steel service lines in
Flint as the Agreement’s “main purpose”). If the City continues down this path, at
least hundreds of lead and galvanized steel service lines will likely remain buried
and in service when the City completes its 18,000th excavation, leaving many Flint
The actions the City must take to remedy this newly identified violation are
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distinct from the relief sought through the instant motion (ECF No. 166). This is so
notwithstanding that the facts underlying this violation overlap with the issues that
prompted the motion relating to the City’s Paragraph 30 Report, and that the
the parties during litigation over the Paragraph 30 dispute and through testimony at
the August 2018 hearing. Plaintiffs intend to promptly pursue the dispute
under the Agreement at homes it has reason to believe are served by lead or
CONCLUSION
For the foregoing reasons, concurrent with filing this Brief, Plaintiffs will
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Michael E. Wall
Natural Resources Defense Council
111 Sutter Street, 21st Floor
San Francisco, CA 94104
(415) 875-6100
mwall@nrdc.org
Jolie D. McLaughlin
Natural Resources Defense Council
20 North Wacker Drive, Suite 1600
Chicago, IL 60606
(312) 995-5902
jdmclaughlin@nrdc.org
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CERTIFICATE OF SERVICE
Settlement Agreement and accompanying exhibits with the Clerk of the Court
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