Daretha Braziel v. City of Benton Harbor Water Department

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS DARETHA BRAZIEL, Individually and as Next UNPUBLISHED Friend of DB, a Minor, and DR, a Minor, KEESHA June 10, 2025 JONES, Individually and as Next Friend of DJ, a 3:06 PM Minor, TMC, a Minor, TC, a Minor, and KLB, a Minor, IEASHA JONES, Individually and as Next Friend of DJ, a Minor, KK, a Minor, KF, a Minor, SJ, a Minor, and DAJ, a Minor, EMMA KINNARD, STACEY BRANSCUMB, and MICHAEL D. BRIGHAM, Plaintiffs-Appellees, v No. 370316 Berrien Circuit Court CITY OF BENTON HARBOR WATER LC No. 23-000249-NM DEPARTMENT, ELHORN ENGINEERING, F&V OPERATIONS INC., and CITY OF BENTON HARBOR, Defendants, and MICHAEL O’MALLEY, Individually and In His Official Capacity, Defendant-Appellant. Before: BOONSTRA, P.J., and LETICA and REDFORD, JJ. PER CURIAM. -1-  Defendant, Michael O’Malley,1 appeals as of right a March 11, 2024 order denying his motion for summary disposition under MCR 2.116(C)(7) (governmental immunity) and (C)(8) (failure to state a claim). On appeal, defendant argues the trial court erred by denying his motion for summary disposition and declining to dismiss him from the action because he was entitled to governmental immunity under the Governmental Tort Liability Act (“GTLA”), MCL 691.1401 et seq., on the basis of either absolute or qualified immunity. Because we find no error in the trial court’s decision, we affirm and remand to the trial court for further proceedings. I. FACTUAL BACKGROUND2 This case concerns defendant’s response to the discovery of lead in the City of Benton Harbor’s (“the City”) municipal water system in excess of lead action levels. Lead is a neurotoxin that is particularly dangerous to children. Both federal and Michigan law regulate the quality of drinking water for the public under their respective Safe Drinking Water Acts (“SDWA”). 42 USC 300f et seq.; MCL 325.1001 et seq. In Michigan, the Department of Environment, Great Lakes, and Energy (“EGLE”), formerly known as the Department of Environmental Quality, is the department with “power and control over public water supplies and suppliers of water.” MCL 325.1002(g); MCL 325.1003. EGLE sets standards for the monitoring, treatment, and prevention of lead contamination in drinking water in the Lead and Copper Rule, Mich Admin Code, R 325.10101 et seq.3 These standards require governing authorities to take particular actions when the public water supply’s lead level exceeds “0.015 milligrams per liter (mg/l) in tap water samples collected during a monitoring period . . . .” Mich Admin Code, R 325.10604f(c). These actions include issuing public advisories and public education materials to the persons served by the water supply and offering to arrange for water sampling to customers who request it. Mich Admin Code, R 325.10410(1). Additionally, governing authorities who were previously in compliance with lead action levels must increase testing frequency from every three years, Mich Admin Code, R 325.10710a(4)(d)(iii), to every six months, Mich Admin Code, R 325.10710c(2), and correct corrosion problems through corrosion-control studies and treatment, Mich Admin Code, R 325.10604f(1)(b). The typical source of lead contamination is not the source water, but lead leaching from older pipes in the water delivery system. Such is the case in Benton Harbor. The City sources its water from Lake Michigan, which does not contain lead. However, the City’s public water system 1 Although O’Malley is one of several defendants in this action, we refer to O’Malley as “defendant” because he is the only defendant who appealed the trial court’s March 11, 2024 order. We still use “defendants” to refer collectively to all of the defendants named in this case. 2 The facts stated in this case are taken from plaintiffs’ complaint. For purposes of this appeal, we accept the pleadings as true. 3 The Environmental Protection Agency also requires specific standards for the monitoring, treatment, and prevention of lead contamination in drinking water in the National Primary Drinking Water Regulations. 40 CFR 141 et seq. -2- is 100 years old. In 2018, lead exceeding the lead action level at 22 parts per billion (ppb) and the bacteria E. coli were both identified in Benton Harbor’s municipal water system. Plaintiffs have alleged that defendants treated the lead contamination