Nessel: Engineering firms played 'seminal role' in creating Flint water crisis

Michigan Attorney General Dana Nessel is buckling down on the engineering firms that allegedly played “a seminal role” in the Flint water crisis, chiding the companies for “denying and shifting responsibility” in recent court filings.

Nessel’s office made the allegations in arguments filed last week in response to the companies’ motions to dismiss the case filed against them in 2016 by the office of Republican then-Attorney General Bill Schuette on behalf of Michigan residents.

In a statement on Friday’s filing, Nessel said attorneys are working “to ensure these companies are held accountable for their role in causing this crisis.

“The incompetence of the city of Flint’s water consultants was a principal cause of the Flint Water Crisis,” Nessel said in a statement. “It has become clear through documents obtained in discovery that the consultants made repeated missteps and engaged in reckless behavior.”

The companies, Veolia and Lockwood, Andrews & Newnam (LAN), suggested the attorney general's pursuit of the lawsuit against the engineering firms is a strategic change prompted by the dismissal of criminal charges against city and state officials in the Flint water litigation.

“They have now reversed course and changed their theory to seek to hold Flint’s consultants responsible," LAN said in a statement. "This approach is contrary to every independent finding of facts on this issue, such as the governor’s Flint Water Advisory Task Force’s final report. We are mystified why the state continues to waste precious resources pursuing this matter and will continue to be vigorous in our defense.”

In a Tuesday statement, Veolia noted its company was retained to address trihalomethane levels in the water more the nine months after Flint's water source was changed. The city rejected most of the company's recommendations, Veolia said.

"The attorney general’s filing not only constitutes an egregious perversion of the clear facts underlying the crisis, it also highlights the obvious conflict of interest in the attorney general’s office in both prosecuting and defending the public officials responsible," the company said.

A potential settlement from the cases against international engineering firm Veolia and Houston, Texas-based LAN has been viewed as a possible source of funding for eventual settlements in the civil cases filed against the state by Flint residents.

Nessel told Michigan Radio in March that any money the state won in the cases would go to the state's General Fund, as dictated by law, but "my hope is that that can be utilized to offset any settlements." State lawmakers, whom Nessel has kept updated on the status of negotiations in Flint, would then decide where the general fund money would be allocated.

Nessel’s office declined to comment Tuesday on where potential settlements would be allocated, citing ongoing litigation. But Friday’s filing notes the lawsuit seeks to recover only for injuries “properly belonging to the state,” not ones “individual Flint residents can recover on their own.”

“To date, the state has appropriated nearly $350 million to respond to the crisis created by defendants,” the Friday court filing said.

The responses filed Friday come a month after Solicitor General Fadwa Hammoud, who is handling the criminal side of Flint water litigation, dismissed all charges against state employees so her team could have time to review the evidence used to issue the initial charges under Schuette.

Shortly after taking office, Nessel said she would handle the Flint civil cases and fired the special assistant attorney general appointed by Schuette to the Veolia and LAN case, the only civil lawsuit initiated by the attorney general’s office in the Flint water crisis to date.

An attorney representing a majority of the alleged Flint water crisis victims in the Genesee County civil cases protested Nessel’s appointment of assistant attorneys general to the Veolia and LAN case who were also defending the state against other civil suits, arguing the attorneys' dual roles represented a conflict of interest.

Within two months of taking over the case, Nessel’s office had refiled an amended complaint against the engineering companies citing new evidence that hadn't been available to the task force when it issued its report on the cause of the Flint water crisis. In May, the companies asked a judge to dismiss the new complaint.

The amended complaint from Nessel's office alleges Veolia and LAN, though hired as water treatment experts, “failed to address design flaws in the Flint Water Treatment Plant, failed to account for changing thermal conditions within the water treatment system, and thereafter made multiple missteps by design(ing) water treatment measures that made the water corrosive.”

Both companies have maintained they acted responsibly and in good faith about the consulting work they did for Flint. Veolia did not immediately provide a response to the attorney general's court filing. 

Veolia and LAN launched web pages to explain their roles, a fact Nessel's office sites as further evidence of the companies' efforts to minimize their culpability.

“LAN was aware of and even concerned that the city was not using a corrosion inhibitor,” Friday’s filing said of the company, which worked with Flint between 2011 and 2014. “But it did not raise any of its concerns with the Michigan Department of Environmental Quality (MDEQ), the U.S. EPA, or the public.”

Veolia was brought into Flint to address elevated levels of trihalomethane in early 2015 at “a crucial juncture when the emerging problems with Flint’s system could still be resolved and mitigate the public harm,” the filing said.

The company pitched itself as “the cavalry arriving to solve Flint’s water problems," Nessel's office wrote. "But it privately planned to give only a shallow analysis it knew would not solve the underlying problem in the hope that a quick win would supply Veolia ground from which to pitch a multi-million dollar, multi-year contract to privatize Flint’s water supply.”

Veolia knew about lead problems at the University of Michigan-Flint campus in early 2015, the response alleges, but “said nothing to MDEQ, to the U.S. EPA, or to the public.”

Advice and recommendations from both companies caused the city to take action that continue to increase the corrosivity of the city’s water, the filing said.

“That increasingly corrosive treated water deteriorated the barrier that had previously inhibited the lead in Flint’s water delivery system and residents’ premise plumbing from leaching into the water leaving Flint’s taps,” Nessel's office wrote.

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