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Motions to Enforce Settlement Agreement - August 21, 2018 1

1 UNITED STATES DISTRICT COURT


EASTERN DISTRICT OF MICHIGAN
2 SOUTHERN DIVISION

3 Concerned Pastors for


Social Action, et al.,
4
Plaintiffs,
5 v.
Case No. 16-10277
6 Nick A. Khouri, et al.,

7 Defendants.
____________________________________/
8
MOTIONS TO ENFORCE SETTLEMENT AGREEMENT
9
BEFORE THE HONORABLE DAVID M. LAWSON
10 United States District Judge
Theodore Levin United States Courthouse
11 231 West Lafayette Boulevard
Detroit, Michigan
12 August 21, 2018
APPEARANCES:
13
FOR THE PLAINTIFFS: Dimple Chaudhary
14 Sarah C. Tallman
Michael Wall
15 Natural Resources Defense Council
1152 15th Street NW, Suite 300
16 Washington, DC 20005

17 FOR THE DEFENDANT Richard Kuhl


STATE OF MICHIGAN: Nathan Gambill
18 Todd Mendel
State of Michigan
19 Department of Attorney General
P.O. Box 30754
20 Lansing, Michigan 48909

21 FOR THE DEFENDANT William Young Kim


CITY OF FLINT: Angela Wheeler
22 City of Flint
1101 S. Saginaw Street, Third Floor
23 Flint, Michigan 48502

24 To Obtain a Certified Transcript Contact:


Rene L. Twedt, CSR-2907, RDR, CRR, CRC
25 www.transcriptorders.com

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1 TABLE OF CONTENTS

2 MATTER PAGE

3 EVIDENTIARY HEARING ON MOTION TO ENFORCE SETTLEMENT

4 WITNESSES:

5 STACY WOODS
Direct Examination By Ms. Tallman......................... 20
6 Cross Examination By Mr. Kim.............................. 44
Redirect Examination By Ms. Tallman....................... 62
7
ROBERT BINCSIK
8 Direct Examination By Mr. Kim............................. 69
Cross Examination By Ms. Chaudhary........................ 77
9 Redirect Examination By Mr. Kim........................... 94

10 ALAN WONG
Direct Examination By Mr. Kim............................. 99
11 Cross Examination By Ms. Chaudhary........................ 112
Redirect Examination By Mr. Kim........................... 134
12

13 MOTION TO ENFORCE SETTLEMENT PARAGRAPHS 29 AND 30


Argument by Ms. Tallman .................................. 138
14 Argument by Mr. Kim....................................... 145
Further Argument by Ms. Tallman .......................... 147
15 Motion Taken Under Advisement by the Court................ 148

16 MOTION TO ENFORCE SETTLEMENT PARAGRAPHS 38 AND 117


Argument by Ms. Chaudhary................................. 150
17 Argument by Mr. Kim....................................... 154
Motion Taken Under Advisement by the Court................ 157
18

19 CERTIFICATE OF COURT REPORTER............................. 158

20

21

22

23

24

25

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1 Detroit, Michigan

2 August 21, 2018

3 2:50 p.m.

4 * * *

5 THE CLERK: All rise. The United States District

6 Court for the Eastern District of Michigan is now in session.

7 The Honorable David M. Lawson presiding.

8 THE COURT: You may be seated.

9 THE CLERK: Now calling the case of Concerned Pastors

10 and others versus Khouri and others, Case Number 16-10277.

11 THE COURT: Good afternoon, counsel. Would you put

12 your appearances on the record, please.

13 MS. CHAUDHARY: Your Honor, Dimple Chaudhary on

14 behalf of plaintiffs.

15 MS. TALLMAN: Sarah Tallman also on behalf of

16 plaintiffs.

17 MR. WALL: Michael Wall on behalf of plaintiffs, your

18 Honor.

19 MR. KIM: William Kim on behalf of the City, your

20 Honor.

21 MS. WHEELER: Angela Wheeler on behalf of the City.

22 MR. KUHL: Richard Kuhl on behalf of the State

23 defendants.

24 MR. MENDEL: Todd Mendel on behalf of Governor

25 Snyder.

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1 MR. GAMBILL: Nathan Gambill also on behalf of the

2 State defendants.

3 THE COURT: Mr. Kuhl, is the State going to be taking

4 a position on any of these motions?

5 MR. KUHL: I don't believe we're in the line of fire

6 today, so I think that we would be attempting to not take any

7 positions today.

8 THE COURT: All right. If that changes, just let me

9 know. I'm going to assume that you won't be heard, so if I

10 pass over, it's -- that's based on that assumption. If it's

11 changed, of course, you can rise and ask to be heard.

12 MR. KUHL: Absolutely. That's fine, your Honor.

13 THE COURT: All right. Thank you.

14 Ms. Chaudhary, there are three motions that have been

15 filed to enforce the settlement agreement. The first one we

16 dealt with back in January, I think, by entering an order that

17 basically said you're going to sort of stand down and let a

18 couple more reporting periods occur.

19 And the order that we entered with respect to that

20 motion, which is docket number 155, makes reference to your

21 ability to seek additional Court intervention concerning the

22 information that you believe that you need or that was wanting

23 in the earlier reports. And my impression or my recollection

24 is that the first motion, of course, had to do with reporting

25 information, but it was focused primarily on the faucet filter

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1 installation and the activity with respect to ensuring that

2 those were in place and functioning. Am I correct on that?

3 MS. CHAUDHARY: Yes, your Honor. I think motion

4 number 173, which I think is what you just referred to --

5 THE COURT: No, I was referring to 155.

6 MS. CHAUDHARY: Entirely to 155. Yes, your Honor.

7 That motion primarily dealt with data collection and reporting

8 under the agreement. In particular the timeliness,

9 completeness, and accuracy with which the City was producing

10 status reports and responding to other requests for

11 information.

12 THE COURT: But the information had to do with faucet

13 filters, did it not, primarily, or was it more broad?

14 MS. CHAUDHARY: It was broader than that, your Honor.

15 There were a number of different categories of information

16 that we -- that the City was not producing timely and accurate

17 information to us regarding. Faucet filter verification was

18 one of those, but there were other categories as well.

19 THE COURT: Let me just say that you're not required

20 today to administer a test to my court reporter.

21 MS. CHAUDHARY: I'm sorry.

22 THE COURT: You probably anticipated my next

23 question, and that is, the third motion, which is docket

24 number 173, has to do with the faucet filter installation and

25 the assurance that they are functioning. Does that refer in

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1 any way to the first motion at all; for example, the provision

2 in the order that says you can seek additional relief?

3 MS. CHAUDHARY: Yes, your Honor. I think it would be

4 fair to characterize them as overlapping motions. Motion

5 number 175 has an independent violation, a component having to

6 deal with the timeliness with which the City is verifying

7 faucet filter installation.

8 THE COURT: Right. You meant to refer to 173?

9 MS. CHAUDHARY: 173. Excuse me, your Honor.

10 But motion 173 also has an element that deals with

11 this continued problem with regards to data collection and

12 reporting. So I would characterize 155 and 173 as overlapping

13 in some sense.

14 THE COURT: All right. And then 166 is different

15 altogether and I believe that focuses simply on essentially

16 paragraphs 29 and 30 of the settlement agreement; correct?

17 MS. CHAUDHARY: Yes. And if I could just make one

18 clarification to what I just said, your Honor, about 155 and

19 173, they are overlapping, but there is an independent portion

20 of 173 that's not covered by 155. And that is this question

21 of the time frame within which the City should verify faucet

22 filter installation at homes. And that is not a data and

23 collection issue, that is a separate violation; hence, the

24 existence of two separate motions.

25 THE COURT: No, no, I understand that aspect of it,

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1 but I sort of took it as the artifact that was referenced in

2 the ability to seek additional relief, despite the fact that

3 that first motion was sort of settled by the order at least

4 pending additional reporting, in your view of it. So that's

5 how I view it.

6 That being the case, I would like to focus first on

7 docket 166. And there are a couple of aspects, as I

8 understand your position.

9 First, you argue about the data and its processing or

10 manipulation -- and I don't mean that in a pejorative way --

11 but you also argue about the methodology with respect to some

12 of the assumptions that the City makes when it is coming to

13 its estimate about how many service lines actually have to be

14 replaced. The settlement agreement discusses an estimate of

15 18,000, and understanding that it is an estimate, I believe

16 that's why paragraphs 29 and 30 were put into the settlement

17 agreement; is that correct?

18 MS. CHAUDHARY: Yes, your Honor. And my colleague,

19 Ms. Tallman, is going to be taking the lead on argument for

20 motion 166 and so --

21 THE COURT: All right. Then, Ms. Tallman, why don't

22 you go ahead and present your argument.

23 MS. TALLMAN: Okay. Yes.

24 THE COURT: You can do that from the lectern here if

25 you're more comfortable. In fact, it might be a little bit

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1 more sensible to do it that way.

2 MS. TALLMAN: Plaintiffs also -- I believe plaintiffs

3 and the City were prepared to present some witness testimony

4 with respect to motion number 166.

5 THE COURT: Do you want to make a preliminary

6 statement and then you can call your witness?

7 MS. TALLMAN: Sure.

8 There has been a lot of data and maps and

9 calculations that have been put in the papers and that you

10 will hear more about today from our witnesses, but I think

11 it's important to, before we address the merits, recall kind

12 of the two potential outcomes that are possible out of this

13 dispute.

14 On the one hand, if the City's unsupported

15 projections about the number of lead and galvanized steel

16 service lines are too low or their budget projections are

17 off base, the City will run out of money to complete its

18 excavation work under the agreement. And this would leave

19 hundreds, potentially thousands of lead and galvanized steel

20 service lines in the ground and the residents in those homes

21 at risk for continued lead exposure, perhaps indefinitely.

22 THE COURT: Well, the delta here is about 8,000

23 homes; right?

24 MS. TALLMAN: Between -- so the City, it's not --

25 THE COURT: Aren't there -- aren't we starting with a

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1 total population of about 26,000 homes in the city?

2 MS. TALLMAN: My understanding is that it's about

3 28,400.

4 THE COURT: Okay. Very well. So the delta is about

5 10,000, then.

6 MS. TALLMAN: Yes.

7 THE COURT: So somewhere between 18,000 and 10,000 --

8 or I guess you can't say that.

9 Out of that 28,000, the original estimate was that

10 perhaps 18,000 might have to be replaced, but based upon data

11 collection that had to be adjusted upward or downward

12 depending on the results of the report; right?

13 MS. TALLMAN: Correct.

14 THE COURT: Okay.

15 MS. TALLMAN: So if the City's estimates are off base

16 and the funds, the original funding that was set forth under

17 the agreement was intended to cover, at most, 18,000 service

18 line replacements, so if, in fact, there are more than that

19 and that the data available now suggests that a reliable

20 estimate should go up from 18,000, the City will run out of

21 money. And so this is why the paragraph 29 and 30 evaluation

22 is a critical point in the settlement, because it's the only

23 point that could trigger an obligation of the State to try to

24 get additional funding for the City.

25 And, again, the City's responsibilities under the

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1 settlement to continue excavating and replacing pipes only

2 goes so far as the available funding. So it's in the City's

3 interest to continue to have enough funding to achieve its

4 goal, and the goal the parties all share, to remove the lead

5 and galvanized steel service lines from Flint as quickly as

6 possible.

7 You'll hear from the witnesses about some new data

8 that was just submitted yesterday that we just received from

9 the City last week, so I would like to provide some context on

10 that, if the Court will allow.

11 THE COURT: All right. Just stand by one second.

12 (Discussion held off the record at 3:00 p.m.)

13 THE COURT: You may proceed.

14 MS. TALLMAN: The City provided us with a spreadsheet

15 last week that contained a list of all the addresses that they

16 planned to excavate in 2018 and information about what the

17 historical records of service line composition suggest about

18 those homes.

19 THE COURT: 2018, you mean the rest of the year?

20 MS. TALLMAN: And what they have done so far.

21 THE COURT: Is that phase 4?

22 MS. TALLMAN: That's phase 5.

23 THE COURT: That will be phase 5. All right.

24 MS. TALLMAN: And then for the excavations they have

25 completed to date it shows what they actually found for each

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1 address. So it will say, for example, at home 10 Main Street,

2 that the water card records, which are these historical

3 records of service line composition, suggested a copper

4 service line, then the City dug it up and they found a copper

5 service line.

6 And what you will hear testimony about is that the

7 data in the spreadsheet are deeply problematic because it

8 shows that the City has excavated nearly 2,000 service lines

9 where the water card records suggest or indicate that the line

10 is likely copper and that, in fact, those historical records

11 about copper lines have been accurate more than 99 percent of

12 the time. So the City is digging up nearly 2,000 pipes that

13 it could be reasonably likely sure are copper lines and, in

14 fact, they have been copper lines 99 percent of the time.

15 THE COURT: So they are spending money on work they

16 don't really need to do; is that what you're suggesting?

17 MS. TALLMAN: Or they are not appropriately

18 prioritizing where they are doing the excavations, which is

19 important, because they are using the results to date to

20 predict what will happen going forward.

21 And as you will hear from our data scientist,

22 Dr. Woods, this new data suggests that there is a sampling

23 bias in what's going on, and it's further evidence that the

24 City's hit rate to date, which had been lower than they

25 anticipated, can't be relied on going forward.

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1 And it also suggests that the City is not going about

2 its lead pipe replacement program in a way that's consistent

3 with the settlement agreement, which is to try to target homes

4 where you think there is a lead pipe, to dig it up.

5 I'll save the rest of my argument for after the

6 witnesses unless the Court wants the full argument now on the

7 motion.

8 THE COURT: No, I don't want the full argument. I

9 want an idea, however, a representation as to what you think

10 your witnesses will show.

11 MS. TALLMAN: So Dr. Woods will talk about this new

12 data. She will also talk about the ways in which the City's

13 estimates are unsupported and not based on reliable

14 statistical principles. She will explain that the inferences

15 that the City is drawing from the data so far and also from

16 its maps are unsupported and are insufficient to draw the very

17 precise predictions that the City has drawn, and, in fact, if

18 the City's estimates are off by even 2 percent, they will run

19 out of money under their own estimates.

20 And Dr. Woods will be our only witness that we'll be

21 offering.

22 THE COURT: Okay. Thank you.

23 MS. TALLMAN: Thank you.

24 THE COURT: Mr. Kim?

25 MR. KIM: Thank you, your Honor. Good afternoon.

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1 THE COURT: Good afternoon.

2 MR. KIM: I'd first like to take issue, your Honor,

3 with the last statement that was made by Ms. Tallman that the

4 City is off by its estimates, that within 2 percent that we

5 would run out of funds. As the -- as we have set forth in the

6 declarations attached to our motions, our activity to date has

7 been off, but it's been off in the other direction. So to the

8 extent that the plaintiffs are raising this red flag that the

9 City is going to run out of money, the current data that we

10 have, the current activity simply doesn't support that.

11 The City's current intentions are to conduct

12 excavations at all 28,400, the approximate number of

13 residential service lines in the city, and we believe that

14 we have sufficient funds to do that.

15 THE COURT: You just think you only need to replace

16 18,000 or fewer; is that right?

17 MR. KIM: We believe that we are only going to need

18 to replace less than 18,000 service lines, but we intend to

19 conduct the excavations and conduct the replacements at all of

20 the residences within the city.

21 THE COURT: Okay. Let's try that one more time.

22 MR. KIM: Okay. The City --

23 THE COURT: Can I try to say what you said?

24 MR. KIM: Sure.

25 THE COURT: It's more helpful to me to do it that way.

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1 You intend to excavate the service lines to examine

2 them at all the residences; correct?

3 MR. KIM: Correct, your Honor.

4 THE COURT: But you think what you're going to find

5 is that you do not need to replace them all; in fact, you

6 think perhaps less than 18,000 will need to be replaced?

7 MR. KIM: Correct, your Honor.

8 THE COURT: All right. Sorry about that. I just

9 want to make sure we're communicating.

10 MR. KIM: My apologies, your Honor, for interrupting.

11 The reason for that, your Honor, is that the City has

12 run into several instances where lines were spliced and so

13 we -- the City has determined it is going to need to conduct

14 the excavations at all 28,000 residences within the city.

15 THE COURT: Where would they be spliced, between the

16 street and the house?

17 MR. KIM: That's my understanding, your Honor.

18 THE COURT: Why would that occur?

19 MR. KIM: Generally, my understanding is that it

20 occurs when the homeowner has the work done on their own as

21 a -- it was done as a cost-saving measure at some time in the

22 past.

23 THE COURT: Would this have been before the

24 switchover?

25 MR. KIM: Correct, your Honor.

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1 THE COURT: Why would that be?

2 MR. KIM: That, I couldn't tell you.

3 THE COURT: I mean, I'm just trying to get a handle

4 on why a homeowner would need to have that done. Is it

5 because there was damage or frost problems or some sort of --

6 MR. KIM: I assume there would be a variety of

7 reasons why a homeowner would need to replace their line or

8 repair a line damaged from numerous causes.

9 THE COURT: Well, give me an example. And the reason

10 I'm asking this is because I'm trying to get my arms around

11 the likelihood of that actually occurring. Why would somebody

12 need to splice a line?

13 MR. KIM: I can't give your Honor a specific example

14 right now; however, your Honor, in relation to motion 166,

15 which you asked us to focus on, we think there are essentially

16 two issues here. One is that the City's -- the projections

17 that the plaintiffs are criticizing were conducted back in

18 February of this year, and so that the information that -- the

19 only information the City had was the information that was

20 available to them or to us back in February.

21 To the extent that the City may have additional

22 information now that will allow it to further refine those

23 projections, it's simply unfair to hold -- to require the City

24 to have used information that it did not have back then.

25 At the same time, your Honor, we do have -- I mean,

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1 we have been conducting excavations and replacement of lead

2 and galvanized steel service lines in the city since April of

3 this year. And to this point, your Honor, as we set forth, as

4 was set forth in Mr. Wong's declaration, as of August 1st,

5 12,543 service lines have been excavated in the city and a

6 total of 6,839 have been replaced.

7 And our witnesses will set forth essentially how

8 these -- how these lines were selected and essentially how

9 these lines were selected compared to the remaining service

10 lines that have not yet been excavated either this year or

11 into next year. So our testimony, we believe, will show that

12 the City made the best projections that it could at the time

13 that it made them. And I believe that it will also show that

14 the City's -- those estimates, if to the extent that they

15 have -- they are inaccurate, are inaccurate in the other

16 direction; that the number of lead and galvanized steel

17 service lines in the city is ultimately going to be much less

18 than the 18,000 that we originally -- that we originally

19 estimated a year and-a-half ago when we executed the

20 settlement agreement.

21 THE COURT: Well, we all agree that we're dealing

22 with an unknown at this point, still; right?

23 MR. KIM: Yes, your Honor.

24 THE COURT: Okay. Now, the City of Flint, as I

25 understand it, is committed to replacing all of the service

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1 lines that need to be replaced in order to alleviate the

2 contamination problem; is that fair to say?

3 MR. KIM: That would be fair to say, your Honor.

4 Our -- the City is committed to replacing all lead and

5 galvanized steel service lines in the city.

6 THE COURT: Regardless of any caps that might have

7 been negotiated in the settlement agreement?

8 MR. KIM: Correct, your Honor.

9 THE COURT: So isn't it in the City's interests to

10 overestimate, I mean, within reason, in order to be sure that

11 funds are available to do that work?

12 MR. KIM: Well, on the one hand, your Honor, I would

13 say that would be yes; however, what it's -- we believe that

14 what it's turned out is that the City has done that. The

15 City's projections for this years's lead and service lines

16 replacements, we expect we projected that there would be a

17 reduction in the hit rate where the excavations would uncover

18 lead or galvanized steel and replacement would be required.

19 But the actual hit rate for this year has been far below that

20 projection, which is one of the reasons why the City is

21 confident that it will have sufficient funds to not only

22 conduct the 18,000 excavations and replacements that it is

23 obligated to do under the settlement agreement, but also to

24 complete its service line inventory and excavate all

25 residential service lines in the city.

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1 THE COURT: Right. But you have just told me that

2 you understand and that we agree that you're dealing with an

3 unknown at this point, still.

4 MR. KIM: Yes, your Honor.

5 THE COURT: So what if you're wrong?

6 MR. KIM: If we're wrong, your Honor, we would

7 believe that we have to go back and get additional funds. We

8 would have to secure additional funds from some source. We

9 believe that there is --

10 THE COURT: From the State; right?

11 MR. KIM: The State would probably be the most likely

12 source for those funds, but we also believe that there is zero

13 chance of the available funds being exhausted within the next

14 fiscal year.

15 THE COURT: Oh, you mean the City's fiscal year?

16 MR. KIM: Actually, the State's fiscal year. The

17 City is July to July -- or July to June, and the State is

18 October to -- for a year.

19 THE COURT: All right. All right. Okay. Who will

20 you be calling as witnesses?

21 MR. KIM: We will be calling Alan Wong, the project

22 manager for the City's Fast Start Program; and Robert Bincsik,

23 who is the Director of the City's Department of Public Works.

24 THE COURT: Does the City still run the Fast Start

25 Program or have you contracted that out?

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1 MR. KIM: That would be Mr. Wong, who is an employee

2 of AECOM, who has been contracted to manage the Fast Start

3 Program.

4 THE COURT: And the City outsourced that; is that

5 correct?

6 MR. KIM: That is correct. They manage the program,

7 and as he will set forth in his testimony, they manage the

8 contractors who are doing the actual work.

9 THE COURT: All right. Did you say you had a witness

10 in addition to Mr. Wong?

11 MR. KIM: Mr. Bincsik. He is the City's Director of

12 the Department of Public Works.

13 THE COURT: Okay. Thank you.

14 All right. Ms. Tallman, then, you may call your

15 first witness.

16 MS. TALLMAN: Plaintiffs would like to call Dr. Stacy

17 Woods.

18 THE COURT: Is Dr. Woods in the courtroom?

19 Would you just step up for a moment? Pause right

20 there. Raise your right hand and be sworn.

21 * * *

22 STACY WOODS

23 was called as a witness, after having

24 been duly sworn to testify to the truth.

25 * * *

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1 THE COURT: Would you have a seat right over here in

2 the witness box, please?

3 Would you state your full name and spell your last

4 name?

5 THE WITNESS: Yes. My name is Stacy Woods,

6 W-O-O-D-S.

7 THE COURT: And, Ms. Tallman, you can rotate that

8 lectern so you can face the witness.

9 Maybe you can't.

10 MS. TALLMAN: I can do it a little bit. This is

11 good.

12 THE COURT: All right. You may proceed.

13 DIRECT EXAMINATION

14 BY MS. TALLMAN:

15 Q. Dr. Woods, can you introduce yourself to the Court?

16 A. Yes. I'm Dr. Stacy Woods and I am a data scientist at

17 NRDC.

18 Q. And can you briefly describe your qualifications as a data

19 scientist?

20 A. Yes. I have my PhD and my MPH from the Johns Hopkins

21 Bloomberg School of Public Health.

22 Q. And what is a data scientist?

23 A. So my expertise is in analyzing data, and that includes

24 critiquing data quality and assumptions you can make from that,

25 as well as creating and running statistical models to analyze

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1 data.

2 MS. TALLMAN: Your Honor, we have some exhibits, all

3 of which have previously been filed with the motion papers,

4 and we spoke to the City prior to the hearing and they have

5 agreed that all of them are authentic and admissible. So to

6 save the Court's time we would like to move all of the

7 exhibits that have been filed into evidence and refer to them

8 by their numbers.

9 THE COURT: Well, I don't know that you really need

10 to do that. They're part of the record, since they are

11 attached to the motions, but you can refer to them as you wish

12 during the hearing. But just give me a heads up as to which

13 document they are attached to so I can follow along.

14 MS. TALLMAN: Okay. Thank you, your Honor.

15 BY MS. TALLMAN:

16 Q. Dr. Woods, based on your education, your research, and

17 your professional experience, do you consider yourself an

18 expert in statistics?

19 A. Yes.

20 Q. And do you consider yourself an expert in data science?

21 A. Yes.

22 MS. TALLMAN: Your Honor, I would like to offer

23 Dr. Woods as an expert in data science and statistics. Her

24 CV is attached to her first declaration, which is ECF Number

25 166 -3, and reflects her expertise in these areas, including

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1 her PhD in environmental health sciences.

2 THE COURT: Proceed.

3 BY MS. TALLMAN:

4 Q. Dr. Woods, are you also an expert in engineering?

5 A. No.

6 Q. Are you an expert in water infrastructure?

7 A. No.

8 Q. Are you an expert in project management?

9 A. No.

10 Q. Do you analyze data, ever, relating to subject matters on

11 which you are not an expert?

12 A. Yes. So as a data scientist my expertise is actually in

13 the methodology of data analytics. So in the way that you

14 could be an expert in arithmetic and be able to add two apples

15 plus two apples to know that there are four apples, you don't

16 necessarily need to be an expert in apples.

17 Q. Thank you.

18 Now I would like to ask you a few questions about

19 your role in this case.

20 During your time at NRDC did plaintiffs ask you to do

21 any work on this case?

22 A. Yes. I have been asked to review the reports and the data

23 that was provided.

24 MS. TALLMAN: Permission to approach the witness with

25 an exhibit.

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1 THE COURT: You may.

2 MS. TALLMAN: Dr. Woods, I have just handed you a

3 document marked ECF Number 172-4, and I have a copy for

4 opposing counsel.

5 I have a copy for the Court as well, if the Court

6 doesn't have it handy.

7 THE COURT: I do not have 172-4.

8 MS. TALLMAN: Okay.

9 BY MS. TALLMAN:

10 Q. Dr. Woods, have you seen this document before?

11 A. I have.

12 Q. Can you read its title?

13 THE COURT: Well, that's not your filing. That's the

14 City's filing; right?

15 MS. TALLMAN: Yes. Correct. Exhibit C to the City's

16 response paper.

17 THE COURT: All right.

18 THE WITNESS: City's Paragraph 30 Evaluation.

19 BY MS. TALLMAN:

20 Q. And is this the report you were referring to previously?

21 A. Yes. So this is what I referred to in my declaration in

22 my statements as the Paragraph 30 Report.

23 Q. And did you review any other documents relating to this

24 report?

25 A. Yes. I reviewed a document titled Summary of the

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1 Paragraph 30 Report.

2 Q. And did you review any maps?

3 A. Yes. I reviewed maps, and as well as two declarations,

4 one by Alan Wong and one by Robert Bincsik.

5 Q. Based on your education, your training, and your work

6 experience, do you believe you have the expertise necessary to

7 understand and interpret the City's Paragraph 30 Report?

8 A. Yes.

9 Q. And do you believe you have the expertise necessary to

10 understand and interpret the various maps and data sets that

11 have been provided by the City in support of that report?

12 A. Yes.

13 Q. I would like to direct your attention to -- in the City's

14 Paragraph 30 Report on the first page with text on page 1, if

15 you could please read the last sentence and then the -- in the

16 first paragraph and then the item listed under number one.

17 A. Yes. "In short, the City's evaluation of its service line

18 replacements SLR activity to date indicates that, one, it is

19 not reasonably likely that there were more than 18,000 lead

20 or galvanized steel service lines at replacement eligible

21 households."

22 Q. Have you reached any conclusions about whether that

23 finding is supported by the data and other materials you have

24 reviewed?

25 A. Yes. I found that the data and materials that I have

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1 reviewed do not support that conclusion.

2 Q. I would like to ask you now a few questions about some of

3 those materials that the City has submitted in support of this

4 report.

5 MS. TALLMAN: Permission to approach the witness with

6 another exhibit?

7 THE COURT: All right.

8 MS. TALLMAN: For the Court's reference, this is ECF

9 Number 172-3, which is Exhibit B to the City's response. And

10 we have a copy for the Court, if the Court so -- needs one.

11 THE COURT: All right. Go ahead.

12 BY MS. TALLMAN:

13 Q. Dr. Woods, have you seen this document before?

14 A. Yes.

15 Q. Can you read the title?

16 A. Declaration of Alan Wong.

17 Q. And have you reviewed this document before?

18 A. I have.

19 Q. Can you please turn to paragraph 22? It's towards the

20 end. Can you read that for the Court?

21 A. "To summarize, the average hit rate to date in 2018 has

22 been half of the 70 percent hit rate recorded in 2017. These

23 findings support the premise put forward by the City of Flint

24 that the hit rate in 2018 may be on the order of 40 percent,

25 current actual is 35 percent, and for 2019 will be less than

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1 40 percent."

2 Q. Do you agree with those statements?

3 A. I do not.

4 Q. Why not?

5 A. I haven't seen the City provide its methods for coming up

6 with those specific numbers.

7 Q. And do you know what Mr. Wong was basing those numbers on,

8 the 40 percent and less than 40 percent predictions?

9 A. Yes. He seems to be basing them on the work done to -- in

10 phase 5 in 2018.

11 Q. And are there any other excavation outcomes that could

12 have gone into that prediction?

13 A. Yes. They could have also used information gathered prior

14 to 2018, so the information gathered in earlier phases.

15 Q. And based on your understanding did they include those

16 2017 outcomes in making the predictions for 2018 and 2019?

17 A. No, they did not.

18 Q. Have you formed any conclusion, any conclusions on whether

19 that decision to exclude the data from 2017 was based on

20 reliable principles of statistics?

21 A. No. In statistics and in data science we discuss the

22 concept of cherry picking data, which is the arbitrary

23 selection and ignoring of data without just cause. And they

24 haven't provided any reasons why they would ignore data

25 collected to this prior to January 1st of 2018.

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1 Q. And just so that the record is clear, can you -- have you

2 formed a conclusion about whether reliable statistical

3 principles support the City's decision?

4 A. I have. I have, yes.

5 Q. And what is your conclusion?

6 A. Yes. My conclusion is that there are no reliable

7 statistical methods that support the City's conclusion.

8 Q. Do you have an understanding as to why the City chose to

9 exclude the data from 2017 when making its forward-looking

10 predictions?

11 A. Yes. So in a few of the documents the City has mentioned

12 that they are moving from older areas to newer areas and

13 that is why they think that the information collected before

14 January 1st is not applicable to predictions made after

15 January 1st.

16 Q. Does that explanation change anything about the

17 conclusions you just offered?

18 A. No, it does not.

19 Q. Why not?

20 A. Because the City hasn't really defined what they mean

21 between older and newer. They haven't given any comparison

22 between the age of the information collected before

23 January 1st, 2018, and the places to be investigated after

24 January 1st, 2018.

25 Q. Why does that matter?

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1 A. Well, one of the statements in Mr. Bincsik's declaration

2 said that in the mid 1950's the City of Flint started using

3 non-lead and galvanized steel materials in their service lines.

4 As a data scientist my question is: Okay. So how do you

5 anticipate or how do you deal with predicting hit rates in

6 places, say, in the late 1950's and how does that compare to

7 your predictions for places for the early 1960's?

8 So you need a more specific definition of old versus

9 new, but also some kind of explanation about how you're

10 considering that when you're predicting moving forward.

11 Q. Has the City provided those explanations?

12 A. They have not.

13 MS. TALLMAN: Permission to approach the witness with

14 another document.

15 THE COURT: You may.

16 MS. TALLMAN: For the Court's reference, I just

17 handed Dr. Woods ECF Number 187, including both attachments,

18 exhibits. This was a filing from yesterday.

19 BY MS. TALLMAN:

20 Q. Dr. Woods, have you -- if you could open it, the binder,

21 and turn to Tab A. And then if you scroll a couple of pages to

22 Exhibit 1-1.

23 A. Yes.

24 Q. Have you seen this document before?

25 A. I have, yes.

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1 Q. And have you reviewed it before?

2 A. I have, yes.

3 Q. What is it?

4 A. This document shows the addresses that are slated for

5 excavation in phase 5. It also shows if there are any of the

6 historical water card readings for those addresses. And it

7 also shows the outcome for the addresses where they did the

8 work.

9 Q. So just to get some context in the spreadsheet, can you

10 read the left-most column, the title of it?

11 A. Addresses Issued for Contractor for Exploration.

12 Q. And then the next column, the second from the left?

13 A. Historical Water Card Reading.

14 Q. And what's your understanding of the information that's in

15 that column?

16 A. The Historical Water Card Reading column indicates whether

17 there is a historical record of service line composition at

18 that specific address.

19 Q. And can you explain your interpretation of the various

20 designations? And so we got all of them, let's turn to

21 page 178.

22 A. So under the Historical Water Card Reading we have letters

23 indicating copper with a C, lead with an L, unknown as

24 indicated with UNK, NA, and blanks. I have no particular

25 information on what that stands for.

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1 Q. In some of the entries there are two letters, so in the

2 first entry on page 178 it says, C-C.

3 How do you interpret that designation?

4 A. That designation shows historical water card readings for

5 both the public and the private side of the service line.

6 Q. Okay. Now let's go to the other side of the spreadsheet,

7 the column third from the right, if you could read the title

8 of that column.

9 A. Service Line Exploration Public Composition.

10 Q. What's your understanding of the information in that

11 column?

12 A. That column reflects what they found when they explored at

13 that address and what they found on the public side of the

14 service line.

15 Q. And then the column next, so the second from the right?

16 A. Service Line Exploration Private Composition.

17 Q. And what's your understanding of what's in that column

18 many?

19 A. That would be the material that they found when they

20 explored on the public -- sorry -- on the private side of the

21 service line.

22 Q. So what does it mean if the entries for those columns are

23 blank?

24 A. It means that they have not yet done an exploration at

25 that address.

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1 Q. And, for example, on the first line again, so this is

2 4014 Orr Street, it says "copper" and "copper" for both of

3 those two columns that we're discussing. What does that mean?

4 A. That means that when the City did their exploration at

5 that address they found copper on both the public and the

6 private side.

7 Q. Dr. Woods, this spreadsheet is pretty long. It's about, I

8 think, 300 pages. Have you done any analysis of the data in

9 this spreadsheet?

10 A. Yes. I summarized the data independently.

11 Q. And if you could turn to Tab B in the binder, so this is

12 Exhibit B to filing 187, so 187-3.

13 A. Yes.

14 Q. Can you read the title of this document?

15 A. Exhibit B, Second Supplemental Declaration of Stacy Woods,

16 PhD, MPH.

17 Q. Have you seen this document before?

18 A. Yes. I wrote this.

19 Q. And does this contain the summary of your analysis of the

20 data in this spreadsheet?

21 A. Yes.

22 Q. Can you describe for the Court the analysis that you did

23 briefly?

24 A. Yes. So, briefly, I looked at all of the addresses that

25 were slated for excavation in phase 5. I considered what, if

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1 any, historical water card records there were for all of those

2 addresses. And then for the addresses where they did the work,

3 I looked at the outcomes and how those related to the

4 historical water card records.

5 Q. So how many total addresses did your analysis count on the

6 spreadsheet?

7 A. 7,332.

8 Q. And of those 7,332 addresses, how many has the City

9 conducted excavations at, based on the information in the

10 spreadsheet?

11 A. 2,484.

12 Q. And of those 2,484 excavations how many were conducted at

13 addresses where the City's historical water card records showed

14 a full copper service line?

15 A. 75 percent of the time.

16 Q. And do you have the number?

17 THE COURT: I think the question was, how many?

18 THE WITNESS: Sorry. Yes. So of the -- sorry.

19 1,866.

20 BY MS. TALLMAN:

21 Q. So 1,866 out of the total 2,484, 2,484 --

22 A. Yes.

23 Q. -- were conducted at homes with copper-to-copper in the

24 water service records?

25 A. Yes.

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1 Q. And so what percentage of the total excavations that the

2 City conducted were done at homes where the records showed

3 copper-to-copper?

4 A. 75 percent.

5 Q. And for those excavations, this subset of 1,866, 1,866

6 where the records show copper-to-copper, what percentage

7 actually dug up a copper service line?

8 A. Over 99 percent of the time.

9 Q. Were there any instances when the historical records of

10 copper service lines were not accurate?

11 A. Yes. In 17 instances, addresses with copper-to-copper

12 water cards actually found lead or galvanized steel service

13 lines.

14 Q. And what percentage of the time is that, the 17 instances,

15 based on the total excavations conducted at the copper record

16 lines?

17 A. It's less than one percent.

18 THE COURT: How many is that? How many homes is

19 that?

20 THE WITNESS: Seventeen, your Honor.

21 BY MS. TALLMAN:

22 Q. Based on the data and the spreadsheet and your analysis of

23 it, should the phase 5 hit rate to date be used as a predictor

24 for the future hit rates in the remaining hit rate in phase 5,

25 2018?

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1 A. No. The hit rate seen to date, so based on these 24,000

2 addresses, out of the more than 7,000 addresses that are slated

3 to be excavated in 2018, oversampled in areas where they have

4 historical water card records showing copper-to-copper service

5 lines.

6 As I said before, it's about 75 percent of their

7 excavations done in phase 5 to date was at locations with

8 copper-to-copper service lines, but if you look at all -- all

9 of the addresses slated for excavation in phase 5, only about

10 60 percent of those addresses have copper-to-copper service

11 lines. So by oversampling amongst those records where you're

12 pretty confident you're going to find copper-to-copper and not

13 need to replace, you're artificially decreasing your hit rate.

14 Q. And based on the data in the spreadsheet are the hit rates

15 the City has found to date in phase 5 a reliable predictor for

16 the hit rate in phase 6? So that would be the excavations

17 planned for 2019.

18 A. No. We haven't received any information about phase 6, so

19 we don't know which addresses the City has selected to excavate

20 in phase 6.

21 Q. Dr. Woods, I would like to shift gears a little bit now.

22 Have you reached any conclusions about what methods the City

23 might use to derive a reliable prediction about the total

24 number of lead and galvanized steel service lines in Flint?

25 A. Yes. In my original declaration I proposed one method of

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1 data-driven prediction could be a regression analysis where you

2 use all of the information that you have, the predictors that

3 the City says will help you predict the outcome of lead and

4 galvanized steel service lines, and the data you have on those

5 predictors to kind of come up with the proper weighting scheme

6 for how you use those predictors moving forward and come up

7 with a refined and more precise prediction.

8 Q. Can you give us an example using one of the variables that

9 the City has offered as relevant and how this refining -- how

10 the model would work?

11 A. Sure. So the City has said that they use these historic

12 water card records to help them predict whether or not an

13 address will need a service line replacement. So the City

14 could do an analysis to determine how well those water card

15 records actually helped them predict in areas where they

16 already have the outcome, and then use that to weight how much

17 they rely on those records in predicting outcomes moving

18 forward.

19 Q. And now I would like you to turn back --

20 THE COURT: Didn't you just do that?

21 THE WITNESS: No. I -- I just summarized the

22 information. I didn't actually test the regression

23 coefficient.

24 And I'm trying to say this without sounding like a

25 statistician.

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1 I didn't actually do any statistical analyses on how

2 precise and how much weight each water card record outcome

3 would have on an ability of a new water card record to predict

4 at a new location. I didn't run any predictive analyses.

5 THE COURT: All right. Is that -- can that be done?

6 THE WITNESS: It can be done, yes.

7 THE COURT: Could you do it with the data that you

8 have?

9 THE WITNESS: I could do it with the data I have,

10 yes.

11 THE COURT: All right.

12 BY MS. TALLMAN:

13 Q. Dr. Woods, I would like you to turn back to the Wong

14 declaration. So that was ECF Number 172-3.

15 A. Yes.

16 Q. And in paragraph 15 --

17 THE COURT: Is it 3 or 4?

18 Oh, the exhibit is 4; right?

19 MS. TALLMAN: This is Exhibit B, declaration of

20 Alan Wong. I believe it's 172-3.

21 THE COURT: All right. That's the declaration. But

22 the attachment, the report --

23 MS. TALLMAN: The paragraph, I think, is --

24 THE COURT: No, I'm sorry, 4 is Mr. Kim's assessment

25 of the Wong declaration. Got it.

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1 BY MS. TALLMAN:

2 Q. So if you could read paragraph 15 for the Court.

3 A. "The budget for an experienced consulting statistician

4 could average $50,000 per month and a predictive model would

5 require at least three to four weeks to develop, another two to

6 three weeks to calibrate, which could require an expenditure of

7 $250,000 to $350,000."

8 Q. Do you agree with Mr. Wong's opinion that a consulting

9 statistician could cost an average of $50,000 per month?

10 A. No, I do not.

11 Q. Why not?

12 A. So in order to evaluate these numbers I reached out to

13 a number of colleagues who have done independent statistical

14 consulting and asked them what their rates were. And their

15 rates ranged from $100 an hour to $250 an hour, and that range

16 was based on the amount of years of experience that they had.

17 If you took the median, so $175 an hour and a 40-hour

18 work week, you're looking at $7,000 a month or $28,000 --

19 sorry -- $7,000 a week, $28,000 a month.

20 Q. And do you agree with Mr. Wong's opinion in the second

21 half of paragraph 15 that the model could require at least

22 three to four weeks to develop and another two to three to

23 calibrate, so that would be adding the two ranges between five

24 and seven weeks total?

25 A. No. The City has already done so much of the work that

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1 needs to go into running and creating this model. They already

2 have their variables that they believe predict the outcome of

3 lead or galvanized steel service lines. They already have the

4 data on those predictor variables and they already have the

5 data for the work that they have done to date. So the data

6 collection has already been done.

7 There is some time that will need to be spent

8 prepping the data, getting it ready to run, but the actual

9 statistical work in terms of writing the code to run this

10 statistical model, I wrote very similar code last week, took me

11 under eight hours to do it. And as a graduate student I wrote

12 very similar code in under a week.

13 Q. And do you have a recommendation about whether it would

14 be worthwhile for the City to do this kind of analysis?

15 A. I do. I think that this kind of refined predictive

16 analysis could really help the City come up with a precise and

17 reasonable prediction for the number of hits -- sorry -- the

18 number of lead and galvanized steel service lines that the

19 City will find and need to replace.

20 Q. And if I could just briefly now turn to some of the maps

21 that have been submitted and I'll ask you a couple questions

22 about those maps.

23 If you look at the Wong declaration, again, this is

24 172-3, there are some maps in the back of it, if you could

25 look, take a skim through those.

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1 Have you looked at those maps before?

2 A. I have. Yes.

3 Q. And have you reviewed them?

4 A. I have.

5 Q. Have you reached a conclusion about whether any of these

6 maps support the City's predictions about the hit rate for 2018

7 and 2019?

8 A. I have reached a conclusion, and that is, that none of

9 these maps support the City's specific predicted hit rates.

10 Q. Okay. Let's look at Exhibit 2 to the Wong declaration.

11 Can you tell me what this map is?

12 A. Yes. It is the service line compositions as identified

13 from record water card readings and other available City of

14 Flint historical records.

15 Q. And just for context, what are each of the dots? What do

16 each dot represent?

17 A. Each dot represents a location where there is a historical

18 city record indicating the composition of the service line

19 material there.

20 Q. And based on the legend, what color does black correlate

21 to?

22 A. Black indicates a historical record indicating copper

23 service lines.

24 Q. And red?

25 A. Red is a location with historical records indicating lead

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1 service lines.

2 Q. Have you reached a conclusion about whether this map is --

3 can be used to make reliable predictions about the likelihood

4 of finding a lead or galvanized steel service line in various

5 parts of Flint?

6 A. Yes, I have reached a conclusion, and that is, that this

7 map has some severe limitations that would preclude it from

8 being used to make a prediction.

9 Q. Can you describe some of those limitations?

10 THE COURT: Well, it doesn't really purport to be a

11 prediction, does it?

12 THE WITNESS: No, it does not.

13 THE COURT: It's simply a summary of what the water

14 cards records are.

15 THE WITNESS: Yes. That is correct, your Honor.

16 BY MS. TALLMAN:

17 Q. Based on your review of the map, do you have an

18 understanding of how many water cards in the City the City

19 used to create the map?

20 A. Based on the review of the map alone, no. However, in

21 other -- another area of the declaration, Mr. Wong stated that

22 there were 17,500 water card records.

23 Q. And based on a visual review of the map, do you think you

24 can see 17,500 dots?

25 A. No. And, in fact, in some areas you can see that the dots

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1 are covered up by other dots.

2 Q. Why does that matter?

3 A. Well, because this map in the way that it was created,

4 specifically in the choice of the dot size, obscures some of

5 the relevant information that the map is purporting to show.

6 Q. And do you know if --

7 THE COURT: Such as?

8 THE WITNESS: Such as, in the areas where you see a

9 teeny, tiny bit of red sticking out from behind the black, so,

10 for example -- it's hard to indicate, but kind of --

11 THE COURT: I don't even see red. That means it's

12 probably not brilliant enough. It looks like orange or yellow

13 or something like that. But that's probably what that means;

14 correct?

15 THE WITNESS: Yes. So maybe a difference in our

16 printer ink, but --

17 THE COURT: Sure.

18 THE WITNESS: -- I see a red color. And in some

19 areas I see the red color kind of peeking out from behind the

20 black or the gray dots. And what that indicates to me is that

21 we have an issue of dot size, where some dots are obscuring

22 other dots. And if I can only see a sliver of some of those

23 other reds, what am I not seeing?

24 BY MS. TALLMAN:

25 Q. Do you know whether there is a dot on this map for every

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1 home in Flint?

2 A. I do. I do not think the map could show that because the

3 map is based on 17,500 water card readings, and there are

4 approximately 28,000 homes in Flint.

5 Q. Does that difference between the number of water cards and

6 the total number of homes in Flint affect the inferences you

7 can draw from the map?

8 A. Yes. Again, the map does not purport to show outcomes for

9 which it has no information, so you can't draw conclusions

10 about the homes that aren't represented on the map, like you --

11 like you stated earlier, your Honor.

12 Q. Thank you, Dr. Woods.

13 If you can summarize for the Court, based on your

14 review of all the data and all the maps, what are your

15 takeaways about the findings in the City's Paragraph 30 Report?

16 A. Ultimately, I just feel like the City didn't use the data

17 that it had available to it to make a prediction that is

18 precise and reliable. And without a precise and reliable

19 prediction about the hit rates moving forward, you cannot

20 reasonably budget for that, for the hit rate in the future.

21 Q. And based on your review of the data and maps are the

22 City's findings, in particular the finding that we began with

23 that there were fewer -- likely fewer than 18,000 lead and

24 galvanized steel service lines, was that finding based on the

25 application of reliable statistical principles?

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1 A. No.

2 Q. And can you briefly summarize why, what the basis of your

3 conclusion is that it was not based on reliable statistical

4 principles?

5 A. The City's conclusion that it was not more than -- that it

6 was -- sorry, excuse me -- that it is not reasonably likely

7 that there are more than 18,000 lead or galvanized steel

8 service lines at replacement-eligible households is not

9 supported with specific numbers, estimated numbers that can

10 add up to a number other than 18,000.

11 Q. So do you understand that the City came up with an

12 estimate for how many lead and galvanized steel service lines

13 there were in Flint?

14 A. I have not seen a specific number, estimated total of lead

15 and galvanized steel service lines for all of Flint.

16 Q. The City -- would you, as a data scientist, rely on the

17 observed hit rate in 2018 as a reliable predictor for the hit

18 rate moving forward?

19 A. As a data scientist I would incorporate the information

20 that we have gathered in 2018, but also incorporate information

21 that we have gathered prior to January 1st, 2018, and use that

22 to predict our hit rate moving forward.

23 MS. TALLMAN: Nothing further, your Honor.

24 THE COURT: Have you done that?

25 THE WITNESS: I have not done any predictive modeling,

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1 no, not on this.

2 THE COURT: Are you capable of doing that?

3 THE WITNESS: I am capable of doing it, yes.

4 THE COURT: All right. Thank you.

5 Mr. Kim, you can try your hand at turning that, if

6 you want.

7 MR. KIM: Certainly, your Honor.

8 Thank you, your Honor.

9 CROSS EXAMINATION

10 BY MR. KIM:

11 Q. Good afternoon, Dr. Woods.

12 A. Good afternoon.

13 Q. You say that you have never -- that you haven't actually

14 created your own predictive model based on the information

15 that's been provided to the NRDC; is that correct?

16 A. I have not.

17 Q. Okay. Have you ever designed a predictive model to

18 identify the composition of buried service lines that have been

19 installed over the course of a century?

20 A. No.

21 Q. What -- if you were to design a predictive model to

22 predict the number of -- the number of lead and galvanized

23 steel service lines, what information would you need to have?

24 A. Essentially the information that the City has. So that is

25 the input, the prediction -- sorry -- the predictive variables

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1 that the City says will help them predict whether or not there

2 is lead and galvanized steel service lines.

3 So that includes thing likes the historical water

4 cards information. The data also -- I'm sorry -- both the

5 specific variables, the predictive variables, but also the data

6 on those variables would be needed.

7 Q. Can you be a bit more specific on what -- besides you

8 mentioned the historical water cards, but what other predictive

9 data or variables are you -- are you -- do you -- would you

10 have in mind?

11 A. Well, it's not in my mind. I would follow the City's

12 statements. And so I'm trying to find -- it's hard, because

13 in the Paragraph 30 Report we don't have the paragraph numbers,

14 so it's kind of hard to locate it. But the -- throughout the

15 documents there have been these predictive variables stated,

16 such as the historical water card readings, the age of water

17 infrastructure, including the age of fire hydrants, as well as

18 the relative age of the city areas could be used to predict the

19 hit rate.

20 THE COURT: You said those were predictive variables?

21 THE WITNESS: Yes.

22 THE COURT: Aren't those -- isn't that raw data?

23 THE WITNESS: Yes. So it is indeed raw data.

24 THE COURT: So it's not a variable, it's -- you

25 calculate variables; right?

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1 THE WITNESS: So I apologize because I am slipping

2 into my statistical jargon.

3 When you're modeling --

4 THE COURT: I'm doing my best to follow you.

5 THE WITNESS: I know. I'm so sorry. It's on me.

6 THE COURT: But I think that based upon your

7 background, if you look around this room here, you have to

8 understand you're dealing with lawyers.

9 THE WITNESS: I appreciate that, yes.

10 THE COURT: And there is a reason we all went to law

11 school.

12 THE WITNESS: So --

13 THE COURT: There is no statistics class in law

14 school.

15 THE WITNESS: That is unfortunate. But it's a lot

16 of fun.

17 THE COURT: That's your view.

18 THE WITNESS: Right.

19 So in a statistical model you have the outcome;

20 right? In this case it would be the service line composition;

21 right? And then you have an equal sign. And on the other

22 side you have what we call predictor variables; right? And

23 those predictor variables are information, data, that you put

24 in to help you predict that outcome.

25 So every predictor variable, for example, the City

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1 has stated that water card reading is a predictor variable.

2 That predictor variable has a spreadsheet with that data. So

3 there are variables and data associated with those variables,

4 and there is the outcome and data associated with that

5 outcome.

6 THE COURT: All right. Sorry to highjack your cross

7 examination, Mr. Kim. I'll try not to do that again.

8 MR. KIM: That's okay, your Honor. I'm perfectly

9 happy to have you ask questions, your Honor.

10 BY MR. KIM:

11 Q. You talk about predictive variables in terms of

12 generating -- to determine an outcome. What's the level of

13 certainty that an outcome would have?

14 A. I am not sure how to answer that question without actually

15 running a predictive model.

16 Q. Well, when you generate a predictive model you're taking

17 the data, you're identifying them as predictor variables, and

18 you're using those predictor variables to come up with an

19 outcome.

20 A. Uh-huh.

21 Q. So if I'm understanding that correctly, that would mean

22 that you're taking the data, you're analyzing it, and then

23 you're drawing a conclusion?

24 A. Yes.

25 Q. And the outcome is the conclusion?

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1 A. Yes.

2 Q. What is the level of certainty in that conclusion?

3 A. Yes. Thank you. Thank you for that clarification.

4 So please stop me if I'm getting too in the weeds

5 with the statistical jargon here, but I want to be able to

6 answer you clearly.

7 When you run a model you have a bunch of numbers and

8 outputs associated with every element of that model. Okay? So

9 you would have your output -- your outcome -- sorry -- and at

10 the end of the model you have your standard error. And that

11 standard error reflects how certain you are on the predictions

12 of that outcome.

13 But, furthermore, for every variable in that model

14 you also have what's called a beta coefficient, which is

15 essentially your weight, how much that specific variable helped

16 you predict that outcome. And then also around that beta

17 coefficient there is also a standard error; right? So there

18 is a measure of how certain you are in that weight, that that

19 variable helped you predict the outcome.

20 And I apologize for hitting the mike. I get very

21 animated. I really do like statistics.

22 THE COURT: Well, how do you calculate the variable?

23 Do you do that by testing?

24 THE WITNESS: Yes. So the weight --

25 THE COURT: I'm sorry. How do you calculate the

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1 error rate? Do you do that by testing?

2 THE WITNESS: Yes. So the way that you create a

3 model is a stepwise process. And at -- you, again, have an

4 error both on the outcome and you also have an error for every

5 variable. And as you add new predictor variables and you get

6 to see those weights change, you get to determine if, for

7 example, the addition of your new variable actually does a

8 better job of explaining the outcome, and then you can draw --

9 and maybe another variable drops out of what we call

10 statistical significance.

11 And I can go into that if you would like me to, but I

12 can also avoid it if you would prefer.

13 BY MR. KIM:

14 Q. So if I can kind of build on the Judge's question, to

15 develop this predictive model you would have to test it based

16 on new information?

17 A. So that's the beauty of what's been done so far to date.

18 The City has already come in saying that we used certain

19 information to help us make these predictions, the original

20 60 percent predicted hit rate for 2018. And the City lists

21 those variables that they use to predict; right?

22 So you could start your model there. And you can do

23 it one variable by one; right? And then you can decide which

24 variables actually helped you predict in the end. So the

25 testing of this model is built in because you guys already have

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1 all of this data.

2 Q. Okay. But you say that -- how useful is this data in

3 predicting exactly where a lead or galvanized steel service

4 line is going to be?

5 A. So you use the data that you have gotten so far to create

6 what we call an efficient model, a parsimonious model, a model

7 that really -- using the information you already have, the

8 model that best predicted that actual outcome using the

9 predictor variables, and then you use that model moving

10 forward.

11 So if you wanted to be very precise you could rerun

12 that model with every, say, hundred, you know, service lines

13 that you excavate. I'm not suggesting you do that, but you

14 could do it. If you were just really into running models, it

15 wouldn't take very long.

16 Q. But it would take time to gather that information?

17 A. Well --

18 THE COURT: I understood the witness to say the

19 information has already been gathered.

20 BY MR. KIM:

21 Q. But can you test -- can you test a model based on the

22 information that you have already gathered?

23 A. I'm -- I apologize, I actually don't understand what

24 you're asking.

25 Q. Well, you're saying that you create this model, you

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1 identify the predictor variables, you figure out how to

2 appropriately weight them, and you use those weights on the --

3 you know, weighting those predictor variables to come up with

4 an outcome, that's your conclusion.

5 Now, you're saying that to test -- can you test that,

6 that conclusion, that conclusion and the soundness of your

7 model, based on the existing data that you used to create it in

8 the first place?

9 A. I apologize, because I think that I am just not explaining

10 this clearly.

11 So you use the information to -- that you have

12 already gathered. What you're doing, what you're doing using

13 the data you have already gathered is getting at that beta,

14 right, the weight. You're getting both at the weight for each

15 predictor and also at that term of significance.

16 What you're asking the model to do when you're

17 putting in -- when you're inputting the data you already have,

18 including the outcomes you already have, is to tell us how

19 reliable those predictors were and does it even help you

20 predict.

21 And then, also, how much does, say, water card

22 readings actually predict the outcome for the areas you have

23 already looked at versus how much weight do you put on the age

24 of the nearest fire hydrant when -- you know, when you're

25 coming up with that prediction; right?

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1 So by putting -- you're putting in the information on

2 both sides of the model, and that's helping you get at that

3 weighting scheme, that beta. And then you input your -- more

4 additional outcomes or you -- sorry, there's two ways to do it.

5 You would then use that model to predict at locations

6 you have not yet excavated because you have the weights and you

7 already, as we have seen, have information on things like the

8 water card readings for those -- for those areas. So, yes.

9 Q. You said there was a second -- you said there was a first,

10 which I assume --

11 A. Right, yes. So that's the first prediction.

12 And then, like I said, if you wanted to, say, at the

13 end of 2018, you could then do the reweighting or you could

14 rerun the model and get, you know, even more precise weights

15 and error terms.

16 Q. So under either your first or your second option, to

17 confirm that the model itself is valid, you have to go out

18 and gather new data in order to test whether or not your

19 predictions were correct?

20 A. I'm sorry. I'm clearly not being clear.

21 So your model validity is created and tested by the

22 data you have to date. It's already -- the test is built in.

23 If you're asking, if you feed your model the outcomes that you

24 already have, then the model is built around those outcomes,

25 therefore, it is valid based on those outcomes. And then you

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1 use that moving forward; right?

2 Q. But how do you verify that those outcomes are accurate?

3 A. Which outcomes?

4 Q. The outcomes that you -- you created the model.

5 A. Uh-huh.

6 Q. You've identified the predictive variables. You have

7 developed your beta coefficients.

8 A. Yes.

9 Q. And those generate outcomes.

10 A. Oh. Thank you. Yes.

11 Q. Now, how do you validate those outcomes?

12 A. I understand what you're saying.

13 So let me try and -- I'm going to rephrase it just to

14 make sure I understand what you're saying.

15 So in this scenario we have utilized the information

16 up through right now, that information being both data on the

17 predictor variables and data on the outcomes. Okay? We

18 created this weighting scheme, which I use the term "beta

19 coefficient" based on that. And then we use those beta

20 coefficients plus the predictor variable data for areas that

21 we have -- we are going to excavate, right, to date. And then

22 we come up with our predicted hit rate for the areas to be

23 excavated.

24 Now, at the end of, say, phase 5 you could then go

25 back and put in the outcome data and rerun the models and try

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1 and get an even more refined beta coefficient for your work to

2 be done in 2019.

3 Is that what you're asking?

4 Q. Well, what I'm asking is: With those initial conclusions,

5 because your initial conclusion would be used -- that you're

6 proposing would be used to generate a -- the likely hit rate

7 within an area?

8 A. Uh-huh.

9 Q. How do you know that that -- how do you know that that

10 information is correct, that your conclusion of whatever hit

11 rate that you conclude based on the running model is correct?

12 How do you verify that information to know that

13 basically you have done -- that you have identified the correct

14 predictor variables, that you have properly weighted?

15 A. I understand.

16 Q. How would you verify that those -- that that -- how would

17 you verify that the specific method that you -- that you or

18 another statistic has come up with is giving you accurate

19 information?

20 A. Sure. Sure.

21 So before -- say you want to be really sure about

22 your predictive model before you predict with it and move

23 forward. You would do a sensitivity analysis. So that would

24 be something like, subset out the data and use the data that

25 you already have and use the model to predict at that area that

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1 you extracted and see how well it performs. That's called a

2 sensitivity analysis.

3 Q. So you're using the data that you have already collected

4 to confirm -- maybe I'm -- maybe this is where I get to go,

5 "I'm a lawyer and I'm not sure I understand."

6 A. I know. I'm sorry.

7 Q. Can you explain more about what a sensitivity analysis is?

8 A. Sure. So I'm just going to use numbers just to make it a

9 little bit more clear.

10 Q. Sure.

11 A. So say that in the year 2018 we have outcome information

12 and predictor information for 1,000 addresses. We use that

13 outcome information and predictor information to build a model;

14 right? That's one way to do it. But the more precise way to

15 do it, if you want to test your model is, again, we have this

16 information for 1,000 addresses.

17 Randomly take out 20 percent of those points. Now

18 create the model and run the model on the remaining 80 percent

19 of those, of those points, and see how well it predicts the 20

20 percent that you left out. That would be a way -- a

21 sensitivity analysis on the model before you move forward with

22 the prediction.

23 And I apologize that I -- it took me that long to get

24 there.

25 Q. Okay. Thank you.

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1 Now, you say -- you say that you have never designed

2 a predictive model essentially under the circumstances that we

3 are faced with here, identifying lead and galvanized steel

4 service lines that have been installed in the city with

5 approximately 28,000 residences over the course of a century.

6 A. Yes.

7 Q. Are you aware of anyone else who has done this kind of

8 work?

9 A. I am not, but I also haven't looked into it.

10 Q. So there is no historical basis for -- there is no --

11 there is no historical basis based on a similar model that

12 could be adapted here that you know of?

13 A. Hmm. I want to be careful in the way that I answer that,

14 because as a data scientist, I don't consider subject matter, I

15 consider data; right? So I can draw similarities between the

16 longitudinal, that's what you're talking, you know, data over

17 time.

18 The longitudinal model that I created last week that

19 looked at a completely unrelated subject matter, it was on

20 forest cover and changes of industry over time, I can see,

21 from a data perspective, that these two models are similar.

22 THE COURT: May I interrupt for -- to ask one

23 question?

24 MR. KIM: Certainly, your Honor.

25 THE COURT: I don't want to take you off your game if

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1 you're on a roll here.

2 MR. KIM: Go ahead, your Honor. I can --

3 THE COURT: All right. You started your testimony by

4 saying you really don't need to have much information about

5 content because your focus is primarily on methodology.

6 THE WITNESS: Yes.

7 THE COURT: But don't you really have to have some

8 basis to identify the variables that you input into your

9 model?

10 THE WITNESS: Certainly.

11 THE COURT: Doesn't that require some substantive

12 knowledge?

13 THE WITNESS: Certainly.

14 THE COURT: For example, if you use water card

15 historical data as a variable --

16 THE WITNESS: Yes.

17 THE COURT: -- you might use the age of the home as a

18 variable?

19 THE WITNESS: Definitely.

20 THE COURT: You mentioned something about the last

21 time a fire hydrant was replaced in the neighborhood as a

22 variable.

23 THE WITNESS: Right.

24 THE COURT: I'm sure there are many others, or maybe

25 there are not, but there's a few others.

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1 THE WITNESS: Right. Yes.

2 THE COURT: But don't you have to understand, then,

3 content about what you're dealing with to understand, to

4 realize whether or not those variables even can find a place

5 in your model?

6 A. Completely. And that's where the City's expertise comes

7 in. I was really -- when I was making that statement it was in

8 respect specifically to this, what I would consider project, a

9 statistical project, where the City has already outlined, based

10 on their experts, their predicted variables. And then they

11 already have the data collected on those variables as well.

12 THE COURT: All right.

13 Sorry, Mr. Kim, again.

14 MR. KIM: No. No need, your Honor.

15 BY MR. KIM:

16 Q. Just a few more questions, Dr. Woods.

17 In your declaration, your first declaration, you

18 concluded that the 2017 -- the City's 2017 hit rate of

19 70 percent, approximately, was appropriate to use to predict

20 the hit rate for the remainder of the city. Is that -- am I

21 accurately summarizing what you stated there?

22 A. I don't have a copy of my declaration in front of me, but

23 I believe I said in the absence of a more refined predictive

24 model data gathered to date, outcomes gathered to date, may be

25 used to estimate outcomes in the future.

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1 Q. Okay. And does that conclusion rely upon any assumptions?

2 A. I want -- I want to be clear that if you are selecting

3 that method of reduction, you're selecting the most rudimentary

4 method of prediction. The more rudimentary the method, the

5 more error in your predictions you will have. To reduce that

6 error, that uncertainty around the predictions that you would

7 get, you would really have to assume that your data collected

8 to date is collected in a scientifically appropriate way, and

9 that it represents the entirety of what I would consider the

10 population. So all of the homes in Flint.

11 Q. So to be, you know, useful as an accurate method of

12 prediction, that 70 percent, the addresses that those

13 70 percent number was based on would need to be reasonably

14 representative of the city as a whole?

15 A. Should be reasonably representative of the city as a

16 whole, yes.

17 Q. And if those addresses were not reasonably representative

18 of the city of the whole -- of the city as a whole, that

19 70 percent would not be an accurate figure; is that -- would

20 that be a reasonable conclusion?

21 A. It wouldn't be a scientifically sound prediction method in

22 that case.

23 Q. So you're not -- so, in other words, you couldn't conclude

24 based on that what the actual hit rate should be, but you

25 could -- but unless you had a comparable, you know, population,

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1 you could conclude that it wasn't necessarily that?

2 A. I'm sorry, I got a bit lost in the negatives. Can you

3 restate that? I apologize.

4 Q. So given that the -- you know, the 2017 hit rate was

5 70 percent --

6 A. Yes.

7 Q. -- if you knew that the City as a whole was not

8 representative of the sample that was used in 2017 --

9 A. With respect to variables that predict the actual outcome?

10 Q. Yes.

11 A. Yes.

12 Q. With respect to meaningful variables, you could then

13 conclude that the 70 percent number was not an accurate -- or

14 was not necessarily -- there was no reason that that should be

15 the number?

16 A. I would then consider it an inappropriate estimator, yes.

17 Q. Okay.

18 A. To use the parlance.

19 Q. And, similarly, your second declaration you argued --

20 after reviewing the 2018 activity to date you concluded that

21 the -- that in the absence of other data that the cumulative

22 data from 2017 and 2018 would be appropriate to use to project

23 the level of activity going forward?

24 A. I would like to -- if I could elaborate a little bit.

25 Q. Certainly.

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1 A. So, yes, I did state that in my second declaration. But I

2 want to be clear that I wrote these declarations before the

3 updated information that we were given last week.

4 Q. Understood.

5 A. Okay.

6 Q. But based on that, does the same concern that you just --

7 or not concern -- but the same caveat that you just expressed

8 related to the use of the 70 percent apply to that conclusion

9 that -- like, in order for that -- for the cumulative 2017 and

10 2018 data to be an accurate predictor of the hit rate going

11 forward, would the population that's being projected have to be

12 substantially similar to what -- the activity that was done

13 previously?

14 A. In order for the hit rate, cumulative hit rate to be an

15 appropriate predictor of the future hit rate, the areas that

16 the cumulative hit rate was extracted from, the sample, needs

17 to be representative of all of the houses in Flint. Is that

18 what you're asking?

19 Q. Does it need to be representative of all the houses in

20 Flint or does it need to be representative of all of the houses

21 in the areas to be -- that you're trying to predict?

22 A. Yes. Sorry. Yes. Thank you for that clarification.

23 THE COURT: Well, isn't that the same?

24 MR. KIM: That gets into argument, your Honor, but I

25 believe that that's not true. I believe that the -- that it's

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1 not the same thing.

2 THE COURT: Okay.

3 MR. KIM: No further question, your Honor.

4 THE COURT: Thank you.

5 Any redirect, Ms. Tallman?

6 MS. TALLMAN: Yes, briefly.

7 Permission to approach the witness?

8 THE COURT: All right.

9 REDIRECT EXAMINATION

10 BY MS. TALLMAN:

11 Q. This is ECF Number 166-2, Exhibit 13 to the Chaudhary

12 declaration.

13 Dr. Woods, if you could turn to the second page, have

14 you seen this document before?

15 A. I have, yes.

16 Q. And have you reviewed it?

17 A. I have, yes.

18 Q. And I believe you referred earlier to --

19 THE COURT: 166-2 is, I think, the entire Chaudhary

20 declaration, so what are you focusing on?

21 MS. TALLMAN: Exhibit 13.

22 THE COURT: 13. I'm sorry. I just want to be

23 following with you here. And that's an e-mail?

24 MS. TALLMAN: It's an e-mail. And in the second page

25 there is -- it's a document with the City of Flint, Michigan,

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1 Department of Law on top.

2 THE COURT: All right.

3 BY MS. TALLMAN:

4 Q. Have you seen this document before?

5 A. I have, yes.

6 Q. And I believe you referred earlier to the City's reference

7 to some variables that it considered in making its prediction?

8 A. Yes.

9 Q. If you could look under Summary of Analysis Data

10 Available.

11 A. Uh-huh.

12 Q. Under Number 2, if you could read that to the Court?

13 A. "This data was generated by consultants based on the

14 review of available City records of service line composition,

15 age of local water-related infrastructure, fire hydrants/water

16 mains, and other available data, et cetera."

17 Q. And was that some of the variables that you were referring

18 to?

19 A. Yes. This is what I was referring to when I was saying

20 that the City already stated predictor variables for where they

21 would find lead or galvanized steel.

22 Q. And in doing this modeling project, I believe you

23 mentioned that you would use -- or what variables would you

24 anticipate a statistician using -- or strike that.

25 How would a consulting statistician go about

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1 identifying the relevant variables to put into the model?

2 A. The statistician would work with the experts in the field.

3 So the ones -- the same experts who came up with this list of

4 predictor variables would inform that work, too.

5 Q. And I believe you mentioned that the City has gathered a

6 lot of the data it needs to do this model. Has the City

7 identified age, the age of houses as a relevant variable?

8 A. The City has stated that the relative age of houses is an

9 important predictor of whether or not there will be lead or

10 galvanized steel.

11 Q. Have you reviewed any information or data about age of

12 houses in Flint?

13 A. No, I have not.

14 Q. Do you know whether the City has any of that data?

15 A. I do not know.

16 Q. And there was some discussion in your testimony about the

17 degree of confidence in the outcomes of the model. To be --

18 to clarify, when you run a model and it spits out some outputs,

19 does the model also give you some outputs that tell you how

20 reliable the answers are that the model is giving you?

21 A. Yes. So as I said before, there is an error term that's

22 associated with every -- not with every output, but with all

23 the outputs that I have brought up. There is an error term

24 associated with each weighting scheme beta coefficient. There

25 is also an overall model error term, the standard error of the

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1 model.

2 Q. And you testified or Mr. Kim asked you about the

3 application of the cumulative -- what we have been calling the

4 cumulative hit rate as a predicatory. Have you -- based on

5 the data you have reviewed after you submitted your original

6 declaration, have you -- has that changed your analysis about

7 whether it's appropriate to apply the cumulative hit rate as a

8 reliable predictor?

9 A. So that's a -- that's, I think, an important question.

10 And my concern is that -- my concern is specifically that the

11 excavations done in phase 5 to date as reflected in that large

12 spreadsheet that we got last week oversampled from areas that

13 had copper-to-copper service line records. So I'm concerned

14 that that means that the hit rates seen in phase 5 to date is

15 artificially low. And if we use an artificially lowered hit

16 rate, that's not scientifically appropriate to use as a

17 predictor moving forward.

18 THE COURT: Why do you think it's low?

19 THE WITNESS: Because if you look at all of -- and I

20 don't have the numbers right in front of me, but all of the

21 7,000-plus addresses that are supposed to be excavated in

22 phase 5, about 60 percent of those addresses have record of

23 copper-to-copper service lines.

24 THE COURT: Oh, you were -- that's what you explained

25 before.

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1 THE WITNESS: Yes.

2 THE COURT: You think it's artificially low because

3 of cherry picking the data?

4 THE WITNESS: Yes.

5 THE COURT: I think that's what you said, isn't it?

6 THE WITNESS: Yes. But just a point, I used the

7 term, cherry picking the data, to refer specifically to the

8 idea that the City has put forth that they only are using

9 information from January 1st, 2018 up to predict the hit rates

10 moving forward with respect to the addresses being oversampled

11 for copper-to-copper, that -- I'm sorry, those are the terms I

12 used, oversampling -- for addresses where there was

13 copper-to-copper records.

14 THE COURT: All right.

15 BY MS. TALLMAN:

16 Q. And just to be clear, assume that the City has already

17 done excavations at roughly more than 12,000 homes. If you

18 assume that, is there enough of that outcome data to do the

19 testing of a model without having to go out and get additional

20 data before you run the model?

21 A. Yes.

22 Q. Okay.

23 A. The beauty of a predictive model is you can run it at

24 any time, but you will get a standard error and lack of

25 significance until you have enough information to make it a

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1 valid model. But at this point you have a lot of information.

2 Q. And does -- based on the information the City has, do you

3 have an opinion about whether conducting a predictive model is

4 more reliable than using the cumulative hit rate?

5 A. Yes --

6 Q. What's --

7 A. -- it is.

8 Q. -- your opinion? Yes?

9 A. Sorry. Yes.

10 Using a statistically sound regression model is much

11 more reliable than just using an overall hit rate.

12 Q. And can you just expand a little bit on that?

13 A. So the statistical model will allow you to use information

14 not just on the outcomes, right, but also on those predictive

15 variables. It allows you to come up with a data-supported

16 weighting scheme for those predicted variables, and it uses all

17 of that information as it makes your predictions versus the

18 cumulative hit rate which essentially ignores all of your --

19 any kind of predictive variable.

20 Q. And I believe there was reference in your cross

21 examination to differences between the areas slated for

22 excavation in 2018 versus 2017.

23 Based on your review of the data, have you -- is

24 there reliable evidence showing that there are differences

25 between the areas excavated in 2017 and the areas excavated --

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1 slated to be excavated in 2018 and 2019?

2 A. So I haven't seen any kind of analysis and I haven't done

3 any kind of analysis that would definitively state the

4 difference between the arbitrary date of January 1st. So we

5 could talk about things like, what are the amounts -- how many

6 locations do we have these historical water records for in 2017

7 and 2018. And I haven't looked at that information.

8 MS. TALLMAN: Nothing further, your Honor.

9 THE COURT: All right. Thank you.

10 Anything else?

11 MR. KIM: No redirect, your Honor.

12 THE COURT: All right. Thank you.

13 THE WITNESS: Thank you.

14 THE COURT: Ms. Woods -- Dr. Woods, thank you. You

15 may stand down.

16 THE COURT: No further witnesses, Ms. Tallman?

17 MS. TALLMAN: No. Thank you.

18 THE COURT: All right.

19 Mr. Kim?

20 MR. KIM: Yes, your Honor. The City would call

21 Robert Bincsik.

22 THE COURT: Mr. Bincsik, please step forward. Just

23 pause right there for a moment. Raise your right and be

24 sworn.

25

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1 * * *

2 ROBERT BINCSIK

3 was called as a witness, after having

4 been duly sworn to testify to the truth.

5 * * *

6 THE COURT: Please have a seat in the witness box.

7 THE WITNESS: Thank you, sir.

8 THE COURT: Adjust the microphone to keep it close,

9 if you would.

10 And state your full name and spell your last name.

11 THE WITNESS: Robert Mr. Bincsik, B-I-N-C-S-I-K.

12 THE COURT: All right. Mr. Kim, you may proceed.

13 MR. KIM: Thank you, your Honor.

14 DIRECT EXAMINATION

15 BY MR. KIM:

16 Q. Mr. Bincsik, are you currently employed as the Director of

17 the Department of Public Works for the City of Flint?

18 A. Yes.

19 Q. And how long have you been employed by the City of Flint's

20 Department of Public Works?

21 A. Early 2000s.

22 Q. And have you held other positions besides the position of

23 Director?

24 A. Yes.

25 Q. Can you tell me what your first position that you held

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1 with the City was?

2 A. I worked in the Sewer Department as a sewer cleaner.

3 Q. And as a sewer cleaner, what were your responsibilities?

4 A. To clean the sewer system for the City of Flint.

5 Q. Okay. And the sewer system, what parts of the sewer

6 system were you responsible for cleaning?

7 A. I worked probably in all neighborhoods of the city over my

8 time there.

9 Q. Okay. And how long were you a sewer cleaner?

10 A. About a year and a half.

11 Q. Okay. And did you then take another position with the

12 Department of Public Works?

13 A. Yes. I took an opportunity to go to the water plant, the

14 water treatment plant.

15 Q. And what did you do at the water treatment plant?

16 A. I was a maintainer/operator.

17 Q. And what are the basic duties of a maintainer/operator at

18 the water treatment plant?

19 A. So we did all the maintenance on, you know, all the pumps,

20 valves, that were really related to the water plant and its

21 pumping stations, as well as maintained dams and operated them.

22 Q. Okay. And how long were you a maintainer and operator at

23 the water treatment plant?

24 A. Close to two years.

25 Q. And what did you do after those two years?

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1 A. I took an opportunity to go to water distribution, where I

2 was an operator. Well, we called it a -- we changed the name,

3 but it was a water distribution maintainer at the time.

4 Q. Okay. And what were your major duties as a water

5 distribution maintainer?

6 A. So as a water distribution maintainer we handled about --

7 we have about 600 miles of water main in the City, so

8 maintaining it, fixing water main breaks, replacing valves,

9 hydrants, basically anything to do with the general operation

10 and maintenance of a large municipal drinking water system.

11 Q. Okay. And what other areas of the water -- what else is

12 considered part of the water distribution system?

13 A. One of my assignments was, I was the staker or handled

14 all the Miss Dig work for the City on its water system, which I

15 think over my tenure there doing that, I handled about 60,000

16 Miss Dig tickets.

17 Q. Are water service lines considered part of the City's

18 water distribution system?

19 A. Absolutely.

20 Q. And how long were you a water distribution maintainer?

21 A. I have been there since I think '05, somewhere.

22 Q. For how long did you hold that position?

23 A. Oh, I'm sorry. Up until -- from '05 up until 2012,

24 January 2012.

25 Q. So for approximately seven years you were a water

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1 distribution maintainer for the City of Flint?

2 A. Yes.

3 Q. And did your duties require you to become familiar with

4 the City's water distribution infrastructure throughout the

5 City?

6 A. Intimately.

7 Q. Would it be fair to say that during your time as a water

8 distribution maintainer you were active in every neighborhood

9 in the city?

10 A. Yes.

11 Q. Were there any areas of the city to which you were never

12 dispatched?

13 A. No, I don't believe so.

14 Q. As part of your duties did you become familiar with the

15 general age of city infrastructure in those areas?

16 A. Yes.

17 Q. So you served as a water distribution maintainer until

18 2012. At that point, what did you -- where did you transition

19 to?

20 A. I was promoted to water distribution and sewer maintenance

21 supervisor, became the operator in charge of the water

22 distribution system for the City of Flint.

23 Q. And what are the duties of the supervisor?

24 A. So that position I supervised approximately 70 workers.

25 We handled all of the water distribution system, waste water

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1 collection, and storm water collection for the City of Flint.

2 Q. Okay. And then how long were you the water distribution

3 sewer maintenance supervisor?

4 A. Up until late '17. I was promoted to Department Public

5 Works Director.

6 Q. And that is the position that you currently serve in?

7 A. Yes.

8 Q. So you say that through your time as a water distribution

9 maintainer and as a supervisor you were responsible for working

10 with the City's water distribution infrastructure?

11 A. Yes.

12 Q. As part of that work did you become familiar with the age

13 of that infrastructure?

14 A. Yes.

15 Q. Did you become familiar with the composition of that

16 infrastructure?

17 A. Yes.

18 Q. And was this information generalized across the city?

19 A. Clarify.

20 Q. Are you familiar with that information throughout the

21 city?

22 A. Yes.

23 Q. Why -- so why is age a reasonable -- is age -- is the age

24 of a water service line a reasonable predictor of the

25 composition of that service line?

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1 A. Yes, I believe so. The -- so the City had an ordinance

2 early on, I think, that required it to install lead from the

3 main to the curb stop. Sometime in the mid '50s that changed.

4 You know, I always use '55 kind of as the date, but then after

5 that it predominantly became copper. That's still the

6 preferred material that we use today.

7 Q. Okay. And are you familiar with how many residential

8 water accounts there are in the City of Flint?

9 A. Yes. There are -- we have about a total of 30,000, 1,600

10 of which are commercial. About 28,400 is the accepted number

11 of residential. I think currently, though, the number I just

12 seen the other day is a little less than 28,000 right now. But

13 it's dynamic. It changes, really, month to month.

14 Q. And are you familiar with the City's Fast Start Program?

15 A. I am.

16 Q. And what do you understand the City's Fast Start Program

17 to do?

18 A. The goal of the Fast Start Program is -- to use Mayor

19 Weaver's term -- to get the lead out. But our goal is to

20 replace all lead service lines in the City of Flint.

21 Q. And are you familiar with how the Fast Start Program has

22 been structured into phases?

23 A. Yes.

24 Q. And so are you aware of the areas in which, during phases

25 1 through 4, the City's Fast Start Program was operating?

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1 A. Yes.

2 Q. How would you describe the age of those areas compared to

3 the city as a whole?

4 A. So to give a little bit of an overview on how the city was

5 constructed, it's -- I think it's typical for any city, but

6 certainly in Flint, the older portions of Flint are in the

7 center of it. And as it grew, the newer portions would be

8 towards the outskirts of it.

9 Q. So the areas that were -- that the Fast Start Program

10 covered in phases 1 through 4, where were those -- where were

11 those located in the City?

12 A. They were predominantly in the center of the city where

13 we believed, and I think the hit rates shows, that we had

14 the highest or the most density of lead service lines.

15 Q. Okay. And then are you familiar with the areas that

16 either have been excavated during phase 5 or that are scheduled

17 to be excavated during phase 5?

18 A. Yes.

19 Q. And how would you describe the relative age of the service

20 lines in those areas compared to the city as a whole?

21 A. So I think in the first four phases, for lack of a better

22 way to put it, we kind of attacked the low-hanging fruit,

23 really, with lead service lines. I mean, that was the most

24 densely-located lines.

25 As we have kind of moved, I mean, we -- the nature of

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1 the project, we have to move, because we can't stay in the same

2 spot and excavate the same place over and over again. So as we

3 continue to move through the project, we have moved away from

4 the center of the city with the idea that that stuff, the

5 majority of it has been completed. And the newer areas have

6 shown that there is a little more copper -- actually, a lot

7 more copper -- in the recent excavations.

8 Q. Okay. And are you familiar with the area -- remaining

9 residential areas of the city that have not been either

10 excavated during phases 1 through 4 to date or are planned for

11 replacement in phase 5?

12 A. Yes. So --

13 Q. And what -- what's your assessment of the age in those

14 areas, the areas that have not been excavated and are not

15 currently scheduled for excavation?

16 A. So the remaining -- the remaining areas are going to be

17 newer. I would say most of them were built in the '60s, I

18 think is the decade, maybe, maybe some as late as the '70s,

19 maybe some as early as the late '50s, but they are going to be

20 newer houses with newer infrastructure, and they should be

21 predominantly copper. And I think if you -- if we look forward

22 a little bit into phase 6, we're going to have, you know, I

23 guess maybe a small cleanup period, kind of. There will always

24 be some areas that we might need to go back to, but overall I

25 think that's where we're at.

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1 Q. Okay. And you stated that you're familiar with the areas

2 of the city that have not yet been excavated?

3 A. Uh-huh.

4 Q. Do you have any reason to believe that there are

5 significant -- that there are concentrations of lead or

6 galvanized steel service lines in those areas?

7 A. I do not. I believe the most densely populated, if you

8 will, leaded areas are -- we have already replaced them.

9 Q. Do you have any reason at all to believe that the City's

10 hit rate, the rate at which excavations identify a lead or

11 galvanized steel service line will increase as the City

12 continues to do excavations?

13 A. No.

14 MR. KIM: No further questions, your Honor.

15 THE COURT: Ms. Tallman, are you taking this part as

16 well?

17 MS. CHAUDHARY: I am, your Honor.

18 THE COURT: All right.

19 CROSS EXAMINATION

20 BY MS. CHAUDHARY:

21 Q. Good afternoon, Mr. Bincsik.

22 A. Good afternoon.

23 Q. Mr. Bincsik, the Federal Environmental Protection Agency

24 is one of the agencies that regulates the City's environmental

25 compliance; correct?

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1 A. Correct.

2 Q. And there are times when the City must report information

3 to EPA; correct?

4 A. Correct.

5 Q. And you rely on information you believe to be accurate

6 when reporting to EPA; correct?

7 A. Yes.

8 Q. And you rely on the best information you have available

9 when reporting to EPA; correct?

10 A. Yes.

11 Q. You're familiar with the evaluation conducted by the City

12 under paragraph 30 of the agreement?

13 A. I'm not sure if I am, actually.

14 MS. CHAUDHARY: Let's change that.

15 Permission to approach the witness, your Honor?

16 THE COURT: You may.

17 THE WITNESS: Thank you.

18 MS. CHAUDHARY: For the Court's reference, this is

19 Exhibit C to the City's response to motion 166. This is the

20 Paragraph 30 Evaluation.

21 THE COURT: Who authored that?

22 MS. CHAUDHARY: I'm sorry. This was attached to the

23 City's response, your Honor.

24 THE COURT: Who authored that?

25 MS. CHAUDHARY: Oh, authored that.

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1 THE COURT: Is that from Mr. Kim?

2 MS. CHAUDHARY: It's from Mr. Kim. It's dated

3 February 8, 2018.

4 THE COURT: Yes. That's ECF 172-4?

5 MS. CHAUDHARY: Yes.

6 THE COURT: All right.

7 BY MS. CHAUDHARY:

8 Q. Mr. Bincsik, let me direct you to Number 1 and the

9 sentence that precedes it.

10 Excuse me, the sentence that follows it.

11 No, the sentence that precedes, actually.

12 "In short, the City's evaluation of its service line

13 replacement SLR activity to date indicates that, number one, it

14 is not reasonably likely that there were more than 18,000 lead

15 or galvanized steel service lines at replacement-eligible

16 households."

17 Did I read that right, Mr. Bincsik?

18 A. I believe so.

19 Q. This report is dated February 18, 2018; correct?

20 A. Yes.

21 Q. So on that date the City concluded that it was not

22 reasonably likely there were more than 18,000 lead or

23 galvanized steel service lines for replacement in Flint; is

24 that right?

25 A. Correct.

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1 Q. Mr. Bincsik, I would like to show you a letter. This was

2 attached as Exhibit D to the City's response to plaintiffs'

3 motion. The ECF number of this is ECF 172-5.

4 Mr. Bincsik, you have seen this letter before;

5 correct?

6 A. Yes.

7 Q. You wrote this letter?

8 A. Yes.

9 Q. And you sent this letter to EPA officials?

10 A. I did.

11 Q. Flint's water system is subject to an EPA administrative

12 order; correct?

13 A. It is.

14 Q. And this letter relates to Flint's obligations under that

15 order?

16 A. Yes.

17 Q. And this letter is dated May 16, 2018; correct?

18 A. Correct.

19 Q. In this letter, if I can direct you to the middle,

20 beginning the sentence, "Of those 8,843 excavations," you note

21 that the City has already found and replaced 6,256 lead or

22 galvanized steel service lines; is that correct?

23 A. That is correct.

24 Q. And in this letter you also tell EPA that Flint still has

25 approximately 14,000 lead, galvanized, or other service lines

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1 left to replace; is that correct?

2 A. That's correct.

3 Q. And if you add 14,000 to roughly 6,200, that's

4 approximately 20,200 lines; correct?

5 A. You said 14,000 plus 6,256?

6 Q. Yes. 20,000 -- does that give you approximately 20,000,

7 let's say?

8 A. Yes.

9 Q. And 20,000, that's more than 18,000; correct?

10 A. It is.

11 Q. And this May 16 letter is -- was drafted three months

12 after the date of the City's February 18 Paragraph 30

13 Evaluation; correct?

14 A. Correct.

15 Q. And it was drafted just about three months ago; correct?

16 A. Correct.

17 Q. Mr. Bincsik, I would now like to talk to you about how you

18 calculated the 14,000 figure in this letter.

19 You wrote -- you write that the previous four

20 phases -- and let me direct you to where I am. It's about

21 halfway down the letter. It says, "The previous four phases

22 have left 20,100 service lines left to be either identified or

23 replaced."

24 Did I read that right?

25 A. Yes.

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1 Q. And by previous four phases, you mean the excavations

2 conducted in phases 1 through 4 of the Fast Start Program;

3 correct?

4 A. Correct.

5 Q. And phase 4 concluded roughly at the end of 2017?

6 A. Well, there was -- we did some phase 4 work in 2018.

7 Q. In early 2018; correct?

8 A. Actually, about the time, I think, I wrote this. So

9 April, May.

10 Q. When you sent this letter to EPA in May of 2018 you knew

11 that the excavations conducted in phases 1 through 4 had taken

12 place in what you have called oldest -- the oldest areas of the

13 city; correct?

14 A. Correct.

15 Q. And you knew that in phases 5 and 6 the City planned to

16 excavate in areas that you have called newer; correct?

17 A. Correct.

18 Q. In this letter you also state -- and this is maybe three

19 sentences from the bottom -- "Throughout the first four phases

20 of Fast Start approximately 30 percent of the lines identified

21 as already" -- "were identified as already being copper from

22 the water main to the house." Correct?

23 A. Yes.

24 Q. That means that 70 percent of the lines contained lead or

25 galvanized steel; right?

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1 A. At the time, yes.

2 Q. And that percentage of lines that are lead and galvanized

3 steel is also called the hit rate; correct?

4 A. Yes.

5 Q. So in your May 2018 letter to EPA, it reflects a hit rate

6 for phases 1 through 4 of about 70 percent; correct?

7 A. Correct.

8 Q. So to calculate that 14,000 figure that's in this letter,

9 you multiplied 20,100 lines left to be identified or replaced

10 by the 70 percent hit rate; correct?

11 A. Correct.

12 Q. And that resulted in 14,000?

13 A. Yep.

14 Q. Mr. Bincsik, the City maintains historical records on

15 service line composition?

16 A. Correct.

17 Q. These historical records are also called water cards;

18 correct?

19 A. Yeah. That's one source of it.

20 Q. The water cards list the last known service line

21 composition of a home based on City records; correct?

22 A. In certain cases.

23 Q. For example, a water card may list the composition as

24 lead, galvanized steel, copper, or unknown; correct?

25 A. Yeah. There is another material in there that's utilized

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1 call tuballoy, and it's like a World War II era metal.

2 Q. Mr. Bincsik, the City can review those historical records

3 before --

4 THE COURT: Excuse me.

5 MS. CHAUDHARY: Sure.

6 THE COURT: Is it an alloy?

7 THE WITNESS: It's called tuballoy. I think it was

8 a wartime metal that really didn't have any, shall we say,

9 valuable parts to it that they might use for -- you know, for

10 the war machine, so to speak.

11 THE COURT: Do you know what its composition is?

12 THE WITNESS: I do not actually know what it is.

13 It's kind of -- it's pretty odd.

14 THE COURT: Does it have lead in it?

15 THE WITNESS: It probably has lead in it. That's

16 just -- so that you know, we're targeting those as well. So

17 we're looking to replace all those as well.

18 THE COURT: Okay.

19 BY MS. CHAUDHARY:

20 Q. Mr. Bincsik, the City can review the historical records it

21 has before it conducts excavations; correct?

22 A. Yes.

23 Q. And, in fact, it does review those records before it

24 conducts excavations; correct?

25 A. It does.

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1 MS. CHAUDHARY: Permission to approach the witness?

2 THE COURT: All right.

3 MS. CHAUDHARY: For the Court's reference, this is

4 ECF 166.2, Exhibit 4 to the Chaudhary declaration.

5 BY MS. CHAUDHARY:

6 Q. Mr. Bincsik, this is a letter from General Mike McDaniel;

7 correct?

8 A. Yes.

9 Q. And it was sent to Keith Cray, the Director at that time

10 of the Department of Natural Resources; correct?

11 A. Yes.

12 Q. And it's on City of Flint letterhead; correct?

13 A. It is. Yep.

14 Q. And you would say Mr. -- General McDaniel -- excuse me --

15 was honest and reliable; correct?

16 A. Yes.

17 MR. KIM: Objection. Calls for speculation.

18 THE COURT: Are you going to contest that point?

19 MS. CHAUDHARY: Well, no. Withdrawn, your Honor.

20 BY MS. CHAUDHARY:

21 Q. Mr. Bincsik, this letter is dated September 28, 2016;

22 correct?

23 A. Yes.

24 Q. Let me direct your attention to the first two sentences of

25 the letter.

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1 "The MDEQ has requested an inventory of lead service

2 lines to be submitted by September 30th for compliance with

3 the action level exceedance for lead. In the 2016 water

4 reliability study recently completed by Rowe Professional

5 Services Company, this information is included in Table 13,

6 page 16."

7 And then you see a table there; correct, Mr. Bincsik?

8 A. Yes.

9 Q. Before we get to the table, let me just direct your

10 attention to the sentence underneath it. It says, "The

11 information was based on data believed to have been developed

12 by the Department of Natural Resources through research of

13 City of Flint records" -- "record and their investigations."

14 Correct?

15 A. Yep.

16 Q. So now let me direct you to this table. The title of the

17 table is "Service Line Material." Correct?

18 A. Yes.

19 Q. And on the left column it lists service -- it says

20 "Service Line Material." Correct?

21 A. Yes.

22 Q. And underneath it the rows show "copper," "galvanized,"

23 "lead," "unknown," and "other." Correct?

24 A. Yes.

25 Q. And there are columns for "All Parcels" and "Occupied

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1 Parcels." Correct?

2 A. Yes.

3 Q. And under "Occupied" there is a column called "Quantity."

4 Correct?

5 A. Yes.

6 Q. And do you see the numbers there?

7 A. I do.

8 Q. The numbers of records listed for lead is 3,414; correct?

9 A. Yes.

10 Q. The number for galvanized is 7,889; right?

11 A. Yes.

12 Q. And for unknown it's 9,104?

13 A. Yes.

14 Q. If we add up those numbers the total is about 20,000;

15 correct?

16 I'm happy to also give you a calculator, if you would

17 like one.

18 A. Yes.

19 Q. So this chart reflects over 20,000 service lines composed

20 of lead, galvanized steel, or of unknown composition; correct?

21 A. Correct.

22 Q. Let me direct you to the quantity under copper. That says

23 22,995; correct?

24 A. Correct.

25 Q. Now, let's assume that three quarters of the unknown

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1 records on this table are lead or galvanized steel. So let's

2 assume a 75 percent hit rate. Well, let's just assume there's

3 75 percent. Can we did that?

4 A. Sure.

5 Q. Three quarters of 9,104 is roughly 6,800. Does that sound

6 right? Again, happy to give you a calculator.

7 So if we add up 3,414 for lead, 7,889 for galvanized

8 steel, and that 6,800 unknown that we discounted by about

9 25 percent to try to get an estimate of lead or galvanized

10 steel service lines, that gives you about 18,000; correct?

11 A. Correct.

12 Q. And the City's settlement agreement with plaintiff

13 requires the plaintiff to conduct at least 18,000 excavations;

14 correct?

15 A. Correct.

16 Q. Mr. Bincsik, the City is presently preparing a service

17 line materials inventory; correct?

18 A. Yes.

19 Q. And a service line materials inventory is a record of each

20 service line in the water system and the material it's composed

21 of; right?

22 A. Yes.

23 Q. And the City is carrying out that inventory for EPA and

24 MDEQ; correct?

25 A. Yes.

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1 Q. And to prepare that inventory the City is identifying the

2 composition of service lines; correct?

3 A. Correct.

4 Q. So for each home where an excavation is done, the City

5 records the composition of the service line and can use that

6 for the materials inventory; correct?

7 A. Repeat that.

8 Q. Sure.

9 For each home where an excavation is done, the City

10 records the composition it finds of a service line; correct?

11 A. Yes.

12 Q. And it uses that for the materials inventory; correct?

13 A. Yes.

14 Q. The City is conducting its excavations for the materials

15 inventory as part of its Fast Start Program; correct?

16 A. Yes.

17 Q. And the Fast Start Program is the same program the City is

18 using to conduct excavations for its settlement agreement with

19 plaintiffs; correct?

20 A. Yes.

21 Q. So when the City conducts an excavation for the purposes

22 of the settlement agreement, it can use those results for the

23 materials inventory; correct?

24 A. Correct.

25 Q. And so when the City identifies a copper line through an

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1 excavation conducted under the settlement, the results of that

2 excavation can be used for the materials inventory; correct?

3 A. Correct.

4 Q. The City has not yet completed its materials inventory;

5 correct?

6 A. Correct.

7 Q. Mr. Bincsik, you have said that there is a correlation

8 between the age of City infrastructure and the likelihood of

9 lead or steel lines nearby; correct?

10 A. Yes.

11 Q. I would like to better understand that correlation. Is it

12 a 100 percent correlation?

13 A. It is not. There is not 100 percent correlation there

14 between -- between the two.

15 Q. Is it a 50 percent correlation?

16 A. I believe it's higher than 50 percent.

17 Q. What percentage is it?

18 A. I would say, based on what we have experienced since we

19 have been excavating, the areas that we knew were predominantly

20 copper or expected to be copper have shown to be predominantly

21 copper. It's really the areas that are kind of in the

22 changeover there. So the infrastructure would have been built

23 when the service -- the line material from the main to the

24 curb-stop would have been put in as lead, and then there would

25 be another time where they wouldn't -- they wouldn't develop

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1 that area.

2 So they would build the infrastructure, they would

3 build the roads, there would be some houses that were built

4 immediately, and then there would be others that would be built

5 at a later date. So the ones at the later date oftentimes

6 would have copper from the curb-stop to the house, but the line

7 material from the main to the curb would be lead.

8 Q. So, so what is the percentage correlation between the age

9 of city infrastructure and the likelihood of lead or the

10 likelihood you'll find lead or steel lines nearby?

11 A. I think when -- when the dates are not near the changeover

12 time, so when we're not talking about mid '50s, if you're

13 talking about infrastructure that was built in the '60s or the

14 '70s, I think your correlation is probably 100 percent at that

15 time.

16 Q. And if you're talking about infrastructure built at other

17 times?

18 A. Yeah. So when -- so if you're getting -- if you're

19 talking about infrastructure that was built, let's say, 1920s,

20 1930s, that's probably close to 100 percent as well. It's when

21 you get near the changeover. So the mid '50s, it's kind of

22 a -- it's a crap shoot as to what it really is.

23 Q. It's a crap shoot. So you don't know, do you?

24 A. Well, we can predict --

25 THE COURT: What happened in 1955? Was there a

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1 change in the building code?

2 THE WITNESS: I believe in '55 the ordinance changed

3 in Flint.

4 THE COURT: And the ordinance was dealing with the

5 building code?

6 THE WITNESS: So the City of Flint, it's my

7 understanding, early on had an ordinance that required -- it

8 actually was a requirement to use lead as its service line

9 material. Minus the health effects, lead is a wonderful

10 material. I mean, if we --

11 THE COURT: Right.

12 THE WITNESS: I mean, when we talk about the

13 material, it's a fabulous material.

14 THE COURT: That's like saying, "Other than that,

15 Mrs. Lincoln, how did you enjoy the play." Right?

16 THE WITNESS: Exactly.

17 THE COURT: Anyway, so what happened?

18 THE WITNESS: So they changed over to using copper at

19 that point, and it's mid '50s, and it varies.

20 THE COURT: But I guess what I'm trying to ask is:

21 What legislation was there? Was it -- was there an ordinance

22 that just withdrew the requirement for lead or was it an

23 ordinance that required or mandated some other material or

24 don't you know?

25 THE WITNESS: So I think the ordinance went away that

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1 mandated lead, but I also think in the industry copper became

2 the preferred material.

3 THE COURT: All right. So the ordinance is gone and

4 then custom took over?

5 THE WITNESS: Yeah.

6 THE COURT: Okay.

7 BY MS. CHAUDHARY:

8 Q. So, Mr. Bincsik, you just testified that for the homes in

9 that changeover period that it's a crap shoot, in your words,

10 with regard to the percentage correlation between -- between

11 the age of city infrastructure and the likelihood of lead or

12 steel service lines nearby; is that right?

13 A. Yes.

14 Q. And so you don't know a precise number; correct?

15 A. No. So when we changed from -- when the City changed from

16 lead to copper, we don't -- we don't really know if they are

17 lead or copper. So typically we would expect, on a block, if

18 you had a lead -- a few lead service lines, the potential is,

19 they all could be lead.

20 Q. But, again, you don't know the precise percentage. It

21 could be 50 percent, 55 percent, 60 percent, you don't know;

22 correct?

23 A. No.

24 MS. CHAUDHARY: Thank you, Mr. Bincsik.

25 Nothing further.

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1 THE COURT: Any redirect?

2 MR. KIM: Yes, your Honor.

3 THE COURT: You may proceed.

4 MR. KIM: Thank you, your Honor.

5 REDIRECT EXAMINATION

6 BY MR. KIM:

7 Q. Mr. Bincsik, in that May 16 letter -- do you still have a

8 copy of that?

9 A. Yes.

10 Q. You state in that letter that the numbers --

11 THE COURT: Is that the --

12 MR. KIM: That is ECF Number 172-5.

13 THE COURT: 172-5. There it is.

14 MR. KIM: Page 846.

15 THE COURT: I've got it. Thank you.

16 BY MR. KIM:

17 Q. You state that the numbers you provide are an estimate

18 which are subject to change. Does that mean that you

19 believe -- was that meant to convey that these numbers

20 essentially were an estimate?

21 A. They were an estimate.

22 Q. What did you -- what did you mean by them being an

23 estimate?

24 A. So at the time, we didn't -- we didn't have the data. So

25 our data has changed rapidly in phase 5. We really reversed.

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1 So we went from about a 70 percent hit rate of lead and

2 galvanized to now we're at about a 75 percent hit rate of

3 copper. And we knew at some point we would arrive at -- you

4 know, our goal was to have all copper. We want 100 percent

5 copper. We knew at some point we would arrive there, we just

6 didn't necessarily expect it to happen this soon.

7 Q. And is it true in this letter you made your estimate based

8 off of the -- just off of the numbers in the first four phases?

9 A. Yes.

10 Q. The 70 percent hit rate.

11 And did you qualify that -- in this letter did you

12 qualify that estimate by saying as work continues through

13 phases 5 and 6 the City of Flint will be able to give a

14 systemwide materials inventory upon completion?

15 A. Yes.

16 Q. Was this intended to convey to the EPA that the numbers

17 that you were citing were subject to revision?

18 A. Absolutely.

19 Q. Ms. Chaudhary talked about the -- questioned you about the

20 changeover period, that time when the city's composition was --

21 that was being used changed.

22 What time period would you say that that period

23 covers?

24 A. It's probably in the '50s, and I would say specifically

25 more about '55 is kind of what we hang our hat on.

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1 Q. So you're really restricting that changeover period to the

2 1950s, if we're going to be expansive?

3 A. Absolutely.

4 Q. And you believe that the infrastructure that was created

5 after the 1960s was far more likely to be comprised of copper

6 than it would be of some other material?

7 A. Yeah. I believe it had to be.

8 Q. Now, you previously testified that you were familiar with

9 the areas that are scheduled for phase 5 and that have not yet

10 been excavated and have not yet been assigned?

11 A. Yes.

12 Q. Are there significant portions of those -- are there

13 portions of those areas that would have been constructed during

14 that 1950s time frame?

15 A. The areas that were -- well, so we're kind of -- there's

16 two areas. There's areas that we're working on in the central

17 part of the city that would most definitely be older than the

18 1950s, and then there are areas that are what I would say are

19 in the changeover zones, so there will be sporadic lead and/or

20 copper and galvanized in there. And then obviously on the

21 furthest outskirts of the city in, really, the newest

22 developments, in quotations, because they are, you know, 50

23 years old nearly, now, but they would be all or mostly copper.

24 Q. Can you estimate how much of the -- well, if we call the

25 areas that have not yet been excavated and the areas that have

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1 not yet been assigned the remaining areas, can you estimate how

2 much of those areas would have been installed prior to the

3 1950s?

4 A. So you're asking in the areas that we have yet to go into,

5 how many of them would have been built before the 1950s?

6 Q. Yes.

7 A. Geez, I think most of them -- I think most of them are

8 built after the '50s. I think the substantial amount of work

9 in the older areas has been completed. I said earlier that I

10 think there is going to be some cleanup involved. There is a

11 number of declinations from residents that didn't want their

12 service lines replaced or houses that become active or houses

13 that, you know, they just didn't get done for whatever reason.

14 I think those are going to have to happen. But I think the

15 majority of the work is going to be more towards the newer

16 areas or the remaining work is going to be towards the newer

17 areas.

18 Q. And can you assign any kind of percentage to that majority

19 of the work? Is that 51 percent? Is that 75 percent?

20 A. When you say majority of the work, you say what we have

21 remaining left or the majority --

22 Q. Majority of the work remaining.

23 A. Gosh, I would say --

24 THE COURT: I don't think he is asking for a guess.

25 Do you have a precise way of conducting -- of offering an

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1 estimate?

2 THE WITNESS: That's --

3 THE COURT: If you don't, you don't. That's all

4 right.

5 THE WITNESS: No. I don't know. I mean -- I mean,

6 the majority of it, a large percentage of what we have left to

7 do is going to be in areas that we believe are going to be

8 predominantly copper service lines.

9 THE COURT: All right. That's what I understood to

10 be the thrust of your testimony.

11 MR. KIM: No further questions, your Honor.

12 THE COURT: All right.

13 Ms. Chaudhary, do you have any further cross?

14 MS. CHAUDHARY: Nothing, your Honor.

15 THE COURT: All right. Thank you.

16 Mr. Bincsik, you may stand down.

17 And you may call your next witness, Mr. Kim.

18 Oh, you need a break? You may not call your next

19 witness.

20 We will take ten.

21 (Recess taken from 4:54 p.m. to 5:09 p.m.)

22 THE CLERK: All rise. Court is back in session.

23 THE COURT: You may be seated.

24 Go ahead, Mr. Kim.

25 MS. CHAUDHARY: Thank you, your Honor.

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1 Your Honor, the City would call Mr. Alan Wong.

2 THE COURT: Mr. Wong, would you step up here, please?

3 Just pause right there, raise your right hand, and be

4 sworn.

5 * * *

6 ALAN WONG

7 was called as a witness, after having

8 been duly sworn to testify to the truth.

9 * * *

10 THE COURT: Would you have a seat in the witness box,

11 please?

12 Mr. Wong, you can pull that microphone up so you can

13 speak into the tip of it there.

14 Would you state your full name and spell your last

15 name?

16 THE WITNESS: Alan Bennett Wong, W-O-N-G.

17 THE COURT: Mr. Kim, you may proceed.

18 MR. KIM: Thank you, your Honor.

19 DIRECT EXAMINATION

20 BY MR. KIM:

21 Q. Mr. Wong, are you currently the project manager for the

22 City of Flint's Fast Start Program?

23 A. Yes, I am.

24 Q. And who are you currently employed by?

25 A. AECOM.

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1 Q. And is AECOM under contract to the City to run the Fast

2 Start Program?

3 A. Yes.

4 Q. Are you familiar with the planning behind the City of

5 Flint's Fast Start Program during 2018?

6 A. Yes, I am.

7 Q. And so are you familiar with the -- how the City of

8 Flint's Fast Start Program is structured in phases?

9 A. Yes, I am.

10 Q. And are you familiar -- were you provided -- when you

11 became the project manager for the City of Flint's Fast Start

12 Program, were you provided with the information that had been

13 available and gathered during phases 1 through 4?

14 A. Yes.

15 Q. Now, you have been in this courtroom; correct?

16 This afternoon, you have been in this courtroom and

17 to hear the testimony?

18 A. Yes, I have.

19 Q. And did you hear the testimony of Dr. Woods as she said

20 that the -- as she highlighted the usefulness of the water

21 cards as a source of data to predict the composition of service

22 lines?

23 A. Yes, I heard that testimony.

24 Q. Okay. Are you familiar with the City's water card -- the

25 City's water cards?

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1 A. Yes, I am.

2 Q. And in February -- in January and February of this year,

3 2018, were all of those water cards made available to you?

4 Were all of those water cards made available to you?

5 A. The water card information was available through a

6 transcription that was put together, developed for phase 4,

7 and we had that data in an electronic database.

8 Q. And you say it was involved in a transcription. Did that

9 include all of the City's water cards?

10 A. It didn't include 100 percent of the cards, no.

11 Q. What -- what data did it include?

12 A. Excuse me?

13 Q. What data, what water cards were available in this

14 database?

15 A. The database included transcription of what was on the

16 handwritten cards. That data was scanned and converted into

17 digital form during phase 4. A portion of the transcriptions

18 were not successful because of illegibility on the cards. The

19 water card records are old and not in 100 percent physical

20 condition to be read electronically. So a portion of that data

21 that's in the water card, the water card system, was unable to

22 be transcribed.

23 Q. And so the data that was unable to be transcribed, did

24 this -- what areas were covered by this data?

25 A. Well, there was sufficient data in this transcribed

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1 database to plan and implement phase 4, but in our phase 5

2 planning process we wanted to access all the available records

3 from the water card system to do our phase 5 planning.

4 Q. So could -- did you have water card data available on

5 phase -- for phase 5 in January and February of this year?

6 A. We had -- some of the data was not used in phase 4 and we

7 embarked on a manual reading of the cards in developing

8 additional addresses from the water card system during the

9 planning phases of phase 5.

10 Q. And what did these manual efforts -- what made up these

11 manual efforts? What were they?

12 A. Approximately six personnel were assigned to the water

13 service center where Mr. Bincsik's operation is, and they

14 manually read and transcribed, I think, about 17,000 cards.

15 Q. And when did this manual effort occur?

16 A. It started probably in May and completed -- and we

17 completed sometime in the middle of June. I think it took

18 about six weeks.

19 Q. Are you familiar with the work of Drs. Schwartz and

20 Abernathy?

21 A. Yes, I am.

22 Q. And how did you become familiar?

23 Do you know what that work -- what work -- what work

24 are you -- comes to mind when you hear those -- when you hear

25 about the work of Drs. Schwartz and Abernathy?

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1 A. When we assumed responsibility for the Fast Start Program

2 in January, upon evaluating and assembling all the

3 documentation -- excuse me.

4 THE COURT: There's some water behind you there, if

5 you like.

6 THE WITNESS: Pardon me.

7 THE COURT: Should be a dot on top, if you line it up

8 with the spout.

9 THE WITNESS: Okay. I'm an engineer, but I can't do

10 this. Thank you.

11 I'm sorry, would you repeat the question?

12 BY MR. KIM:

13 Q. I asked you first if you were familiar with the work of

14 Dr. Schwartz and then Dr. Abernathy, and then I was asking you

15 what that work was.

16 A. Okay. I became familiar with Dr. Schwartz and

17 Dr. Abernathy in early January as we were reviewing all the

18 documentation and inputs that were used in phase 4 for the

19 planning process. We learned that they were developing a

20 predictive model starting in 2016. They started just soon

21 after the crisis evolved and the various stakeholders got

22 together to try to assist the City of Flint.

23 University of Michigan, where Dr. Schwartz works,

24 offered to attempt to do some analysis and assist with the

25 planning for the replacement work.

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1 As part of that, they started developing a predictive

2 water quality model attempting to predict the homes in Flint

3 that would exceed the 15 parts per billion limit. And that was

4 started, that model development was started in 2016. When we

5 met with them in January they -- we reviewed their findings,

6 and offered to provide any assistance to AECOM and the City

7 going forward as far as the planning for the work.

8 Q. And did they provide any assistance?

9 A. They weren't -- they weren't able to provide us the model.

10 They were still calibrating it. And they were changing some

11 of the algorithms in the model to focus more on trying to

12 predict the composition of lead -- composition of service line

13 materials in different areas of the city. And so when we met

14 with them they were in the process of doing that, but because

15 they were doing all this pro bono and using students, we --

16 we -- we ascertained that it would be difficult for them to

17 really play a major, major role in the project because of the

18 inability to control their time and access their people on a

19 fast-moving program.

20 MR. KIM: Your Honor, permission to approach the

21 witness?

22 THE COURT: All right.

23 MR. KIM: Your Honor, for the record, I have provided

24 the witness with the declaration of Alan Wong, ECF Number

25 172-3, page ID 8469, that I believe either Ms. Chaudhary or

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1 Ms. Tallman previously provided to the other witnesses.

2 THE COURT: You just gave him his own declaration?

3 MR. KIM: Yes, your Honor.

4 THE COURT: All right.

5 BY MR. KIM:

6 Q. Can you -- Mr. Wong, can you turn to the last page of that

7 declaration, page 9?

8 A. Yes.

9 THE COURT: I don't think you mean page 9. Talking

10 about page 4 of 9?

11 MR. KIM: It's page 9 of 9, your Honor.

12 THE COURT: Oh, this is an exhibit, then, to the

13 declaration?

14 MR. KIM: Yes.

15 THE COURT: I see. Okay.

16 BY MR. KIM:

17 Q. Can you identify what this -- what is shown here on page 9

18 of your declaration?

19 A. This is the output from the model that we were just

20 discussing from the University of Michigan, the outputs through

21 December 2017.

22 Q. Okay. And do you know when this model was made available

23 to the City?

24 A. This was available -- made available to us sometime in

25 May, mid to late May of 2018.

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1 THE COURT: It actually says received June 2018.

2 What does that mean?

3 THE WITNESS: Well, maybe that's when we actually

4 received the data, but we had discussions with the university

5 probably in mid-May time frame, your Honor.

6 THE COURT: All right.

7 BY MR. KIM:

8 Q. Now, on the right-hand side of that -- of that -- of

9 that -- of page 9 here, do you see the section where it says

10 "Predictive Model M," and then there are numbers there, a

11 series of numbers underneath that?

12 A. Yes.

13 Q. Can you explain what those numbers -- what you understand

14 those numbers to mean?

15 A. I'll do my best. I'm not a statistician. The

16 percentages, these numbers are percentages of probability. So

17 if you go to the bottom of the table, the red dot at the very

18 bottom, 92.4854, that's 92 percent probability that that area

19 in the city will have -- is more likely to have lead and

20 galvanized as opposed to copper.

21 Q. Okay. Now, does that -- is that what -- that information

22 is listed as a probability, you said?

23 A. Correct.

24 Q. So how useful is having a probability in terms of

25 identifying areas to be excavated where excavation should

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1 occur?

2 A. We -- we -- in discussing this model with University of

3 Michigan, and after seeing these results, we have used this as

4 another source. For instance, the water cards, water service

5 cards are a source of information in terms of material. This

6 is another source of information, just like Mr. Bincsik's

7 knowledge about the history of the infrastructure and so forth.

8 These are all sources of information that we -- we have, I'll

9 use the term, triangulated. We looked at them all to inform us

10 as best as possible where the likely locations of lead and

11 galvanized services are. So this is another data source, if

12 you will.

13 Q. Okay. Now, this information was not available in January

14 and February of this year; correct?

15 A. No, it wasn't available at that time. Again, they -- they

16 were doing additional work on the model. They were making some

17 adjustments. And I think just in August of this year they had

18 another publication. It wasn't -- there is a word, I think

19 it's called a circuit publication, which means it's not

20 formally published, but the -- but they have developed and

21 refined this model and included some machine learning

22 capability in it, but that's just -- we just became aware of

23 that in August when the paper became available.

24 Q. Okay. Now, you mentioned how, now that we have had this,

25 this has been part of the -- one of the factors considered for

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1 the City to select addresses for service line replacement;

2 correct?

3 A. One of several, yes.

4 Q. Can you -- can you kind of describe -- are you responsible

5 for -- for -- for selecting those addresses?

6 A. Me personally or my team?

7 Q. Is your team responsible for that?

8 A. My team is responsible, yes.

9 Q. And are you familiar with the methods that your team uses?

10 A. Absolutely, yes.

11 Q. And have you approved these methods?

12 A. Yes, I have.

13 Q. So what is -- what methods have you approved for your team

14 to use to assign addresses?

15 A. The first part is to, again, access all the available data

16 sources. One of the -- I think in this previous testimony, it

17 was 99 percent probability of being correct was assigned to

18 the water cards. And for that data set, I haven't done that

19 calculation, that might be the case, but we've done over 4,600

20 excavations this year starting in 2018, 46 -- 4,628, to be

21 exact.

22 And so much of those -- many of those excavations,

23 the water card information was not confirmed in the field, that

24 we found differing information in the field. And we tracked

25 that down to try to discern why. And we found that there are

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1 changes that are made to either the public side or the private

2 side of the service lines that did not get back to the water

3 service center cards and those cards were not updated. So some

4 of the data in the water cards is outdated. So the -- the --

5 obviously the most certain information we have on the materials

6 is after we excavate and we take photographs and we can

7 validate what's there.

8 Q. Okay. So what other factors go into selecting addresses

9 for excavation?

10 A. Well, the -- okay. There is a -- there is a screening

11 process. You have to have an active account. And active

12 accounts change every month here because some of the properties

13 become a land bank property, which means they are not -- you

14 know, they are not eligible to be part of this program, because

15 there is no -- there is no discrete owner. Some of the

16 properties, we find that in the address data set, the master

17 database we have, when we go out in the field we find that the

18 property is either inhabitable or actually vacant, the

19 structure has been removed.

20 So besides the water cards, we do canvassing, we do

21 physical canvassing before the -- after the locations are

22 staked. We canvass. And we also look at information from the

23 property records. And we also look at, besides the water card

24 readings, Mr. Bincsik's inspectors, when they do work in the

25 field, they fill out information in the field that they bring

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1 back that should be put into the City's database. And so we

2 access those records, also.

3 Q. To go back to the predictive model, does the predictive

4 model -- would the predictive model allow you to precisely

5 identify the location of lead or galvanized steel service lines

6 in the City of Flint?

7 A. If you -- if you talk about predicting at this -- at a

8 particular address using the model to reliably predict what the

9 material is at a discrete address, there will be times when

10 it's correct and there will be times when it's not correct.

11 I don't want to ascribe a percentage. We haven't done an

12 exhaustive analysis. But it's much more useful on an area

13 basis. I would say several blocks at a time, we get a very

14 good correlation.

15 Q. Okay. Just one -- a few last questions, Mr. Wong.

16 In your declaration you predicted -- you predicted

17 that -- you had estimated that a statistician could cost

18 approximately $50,000 a month.

19 A. Uh-huh.

20 Q. What is the basis for that estimate?

21 A. I used an average billing rate of $275 an hour. 275 is a

22 rate that is typically accepted for expert technical, either

23 testimony support or deposition-type activity. And so I just

24 multiplied that by 166 hours per month average and came up with

25 the 50,000.

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1 Q. And you also predicted that it would take roughly three to

2 four weeks to develop a model and two to three weeks to

3 calibrate the model?

4 A. Uh-huh.

5 Q. Is that still your estimate?

6 A. Well, I would like to clarify that, Mr. Kim.

7 My background is civil and hydraulic engineering, so

8 I'm familiar with developing hydraulic models for use in our

9 industry to predict the performance of water systems, including

10 the pressures and the velocities. And so in our -- in our

11 field, a hydraulic model takes quite a bit longer than three to

12 four weeks, as I said in my deposition.

13 Also, in our industry, once you develop a hydraulic

14 model you have to calibrate it with actual field data, and that

15 takes time. And you do that, and that's an iterative step.

16 So --

17 Q. What does that mean, an iterative step?

18 A. You collect field data. You populate the model. You run

19 it. You get a second set of model results and you check that

20 against the actual readings at the water hydrants. Let's say

21 we're testing pressures in a community and you want to validate

22 the models predicting the correct pressures at the hydrants.

23 So you go out and actually do hydrant tests, measure the

24 pressures, and then put that back in the model, run the model

25 again, and then go back out again and take more tests.

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1 Part of the sensitivity analysis and calibration

2 process is that your system conditions aren't exactly the same.

3 So you have to do it over and over again to get a higher

4 confidence that the model is going to be a good -- a good

5 predictor.

6 MR. KIM: Okay. Thank you, Mr. Wong.

7 No further questions, your Honor.

8 THE COURT: Who's taking this witness?

9 Ms. Chaudhary, you may cross examine.

10 CROSS EXAMINATION

11 BY MS. CHAUDHARY:

12 Q. Good afternoon, Mr. Wong.

13 A. Good afternoon.

14 Q. I would like to direct you back to Exhibit 5 to your

15 declaration that you were just discussing with Mr. Kim.

16 A. Yes. This one?

17 Q. Yes.

18 A. Yes.

19 Q. That model was prepared by the University of Michigan;

20 correct?

21 A. Correct.

22 Q. It was not prepared by AECOM; correct?

23 A. That's correct.

24 Q. You don't know the standard error on the model, do you?

25 A. I personally don't.

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1 Q. And you don't know the predictor variables that went into

2 the model, do you?

3 A. My modeler on the project does, but I don't.

4 Q. Have you reviewed the algorithm for the model?

5 A. I personally have not.

6 Q. And does this model take into account the 2018 excavation

7 data?

8 A. No. This is what they had -- what they would have liked

9 to have done is to incorporate the 2018 data to update the

10 model.

11 Q. Was the data used to create this model available to the

12 City in 2017?

13 A. Which data? I'm sorry.

14 Q. Was the -- was the data that went into this model that

15 informed the predictor variables, was that data available to

16 the City in 2017? Not transcribed, but available.

17 A. It was available, because it came from phase 4 data, 2017

18 data.

19 Q. Are you aware that plaintiffs requested the underlying

20 modeling files for that map from the City?

21 A. I'm sorry, could you repeat the question?

22 Q. Sorry.

23 Are you aware that the plaintiffs have requested from

24 the City the underlying modeling files for the map that is

25 depicted in Exhibit 5?

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1 A. I seem to recall seeing that, yes.

2 Q. And to your knowledge, were they produced to the

3 plaintiffs?

4 A. I can't -- I don't know.

5 MS. CHAUDHARY: Thank you. Permission to approach

6 the witness, your Honor?

7 THE COURT: You may.

8 MS. CHAUDHARY: For the Court's reference I'm handing

9 the witness ECF Number 187 with the attachments and exhibits.

10 This is the spreadsheet that we had been previously discussing

11 with Dr. Woods.

12 THE COURT: What part of 187?

13 MS. CHAUDHARY: 187-2, Exhibit 1 -- oh, actually,

14 Exhibit 2. Excuse me.

15 Exhibit 1-1. My apologies.

16 THE COURT: ECF 181 is a brief.

17 MS. CHAUDHARY: Oh, sorry. ECF 187-2.

18 THE COURT: Pardon me. 187 is a brief; -2 is

19 entitled Exhibit A, which is your declaration.

20 And are you referring to an exhibit to that

21 declaration? That's Exhibit 2 to the declaration?

22 MS. CHAUDHARY: Yes. It's Exhibit 1-1 from my

23 declaration.

24 THE COURT: All right. And what page ID number is

25 that?

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1 MS. CHAUDHARY: I'm just directing him to the first

2 page of the spreadsheet.

3 THE COURT: What ECF Page ID Number is that?

4 MS. CHAUDHARY: Page ID -- initially, Page ID .9511.

5 THE COURT: All right. Are you there?

6 THE WITNESS: I see the first -- page 7 is

7 Exhibit 1-1. Page 8 is the first page of the spreadsheet.

8 MS. CHAUDHARY: Yes.

9 THE WITNESS: Okay.

10 THE COURT: It says 1 of 294 at the bottom of the

11 page. Is that what you're looking at?

12 THE WITNESS: Yes. Yes, your Honor.

13 THE COURT: Very good.

14 You may proceed, Ms. Chaudhary.

15 BY MS. CHAUDHARY:

16 Q. This document is entitled "Service Line Exploration Issued

17 Addresses." Correct?

18 A. Yes, it is.

19 Q. And the release date reads 8/15/2018?

20 A. Correct.

21 Q. Mr. Wong, have you seen this document before?

22 A. Yes, I have.

23 Q. This is an AECOM document; correct?

24 A. That's correct.

25 Q. Did you prepare this document?

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1 A. My team did.

2 Q. Did you review this document?

3 A. Yes.

4 Q. Could you turn to page 92 of 298 in this document?

5 A. Okay.

6 THE COURT: 294?

7 MS. CHAUDHARY: Of 294, excuse me.

8 THE WITNESS: Okay. I'm at 92 of 294.

9 BY MS. CHAUDHARY:

10 Q. Okay. Great. I'm going to direct you to some of the

11 column headings in this document.

12 The first column is the "Addresses Issued to

13 Contractor For Exploration." Correct?

14 A. Correct.

15 Q. And this column shows addresses where the City has

16 contracted for an excavation; correct?

17 A. Correct. This -- these are addresses that were issued to

18 the contractors. They are issued addresses probably 100, 200

19 at a time.

20 Q. And then the next column says "Historical Water Card

21 Reading." Correct?

22 A. Correct.

23 Q. And that shows the historical City record, if any, of the

24 composition of a service line at a relevant address; correct?

25 A. Correct.

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1 Q. And in that column "C" means copper; correct?

2 A. Correct.

3 Q. "L" means lead?

4 A. Correct.

5 Q. "G" means galvanized steel?

6 A. Correct.

7 Q. "UNK" is short for unknown?

8 A. Correct.

9 Q. And what does "NA" mean?

10 A. "NA" means there is no -- no -- either no entry or it's

11 not readable.

12 Q. And what does a blank box mean?

13 A. I'm sorry, what does --

14 Q. A blank box mean?

15 A. A blank space?

16 Q. Yes. So if you go up to page 91 of 294 --

17 A. Okay.

18 Q. And if I could direct you to the address, 3513 Keller

19 Avenue.

20 A. Yes.

21 Q. What does the blank space in the historical water card

22 reading mean?

23 A. It means that from the property records there is a

24 3513 Keller Avenue in the City's property records, but when we

25 go to the water card -- water cards at the service center,

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1 there is no card for that address.

2 Q. And what does a question mark mean in the "Historical

3 Water Card Reading" column? And I can direct you.

4 A. Ca you direct me to one?

5 Q. Sure.

6 If you go on the same -- on page 91 of 294, if you go

7 down kind of midway through, 2909 Keller Avenue.

8 A. Oh, yes. There is a "?-C." It means that the private

9 side of the curb stop, there is no record of what the material

10 is on the water card.

11 Q. And so for each entry in the historical water card --

12 THE COURT: May I interrupt, please?

13 MS. CHAUDHARY: Sure.

14 THE COURT: What's the difference between "UNK" and

15 "NA"?

16 THE WITNESS: Unknown is a purposefully documented

17 notation that there is no -- there is no record of the

18 material or there may be a mark on the card that's again not

19 explainable, so it's unknown. And when an address -- when

20 this address is issued to a contractor, that contractor

21 knows that there is -- that there is no record of what the

22 composition is. He is flying blind, basically, at that

23 address. It's just -- it's a nomenclature that was

24 formulated, I think, back in phase 4.

25 THE COURT: All right. And "NA"?

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1 THE WITNESS: "NA," I believe is -- if it's not

2 marked unknown and there is -- and there is no information at

3 all as far as the material of composition, I believe that's

4 what that means. That's just -- in some cases, I said, the

5 card's unreadable and so it's just not available.

6 THE COURT: All right. So "UNK" means it's unknown,

7 which means you don't know; and "NA" means it's not available,

8 which means you don't know?

9 THE WITNESS: There are two types of unknowns. But

10 I think the water card recorders, when they -- when the

11 "unknown" convention was used, as I said last -- last -- last

12 year, in my understanding --

13 THE COURT: Right. Is there some significance to the

14 difference between those two?

15 THE WITNESS: There is no difference in terms of what

16 the material is, but I think there is a difference because

17 there was possibly another record from another source that

18 had information about that service line material, but that

19 information is not recorded on the cards. So it's information

20 that doesn't match.

21 THE COURT: Okay. Ms. Chaudhary, you may proceed.

22 Sorry for the interruption.

23 BY MS. CHAUDHARY:

24 Q. So for each entry on the spreadsheet in the historical

25 water card reading column, where there is a "C" or an "L" or a

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1 "G," the City has some record of expected service line

2 composition; correct?

3 A. Correct.

4 Q. Let me direct you to the fifth column which reads,

5 "Service Line Exploration Public Composition." That shows

6 the result of an excavation on the public side of a line;

7 correct?

8 A. That's actual findings. Yes.

9 Q. And then the next column, Service Line Exploration Private

10 Composition, that shows the result of an excavation on the

11 private side of the line; correct?

12 A. That's correct.

13 Q. So for each home where an excavation is conducted the City

14 records what it finds; correct?

15 A. That's correct.

16 Q. And it records the composition for both the public and the

17 private portions of the line; correct?

18 A. That's the intent, yes.

19 Q. And when those two columns are blank, that means the City

20 has not yet conducted a hydro excavation at that address when

21 this document was prepared; correct?

22 A. Correct.

23 Q. And then the last column which says "Service Line Portion

24 Replaced," that shows whether a service line was replaced;

25 correct?

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1 A. Correct.

2 Q. And if so, it shows the portion of the line that was

3 replaced; correct?

4 A. Correct.

5 Q. Now, Mr. Wong, the City reviews its historical water card

6 data before it conducts an excavation; correct?

7 A. Not -- not every time, no.

8 Q. Well, let me direct you to paragraph 7 of your

9 declaration, and that's ECF 172-3.

10 There you state, "The areas explored in 2018 have

11 been distributed across ten zones. The addresses within those

12 zones have been filtered and selected for exploration based

13 on active water accounts and CHIP account status, materials

14 composition, and the database maintained by the University of

15 Michigan, as well as a review of the water service card data

16 set."

17 So, Mr. Wong, the City reviews historical water card

18 data before it conducts an excavation; correct?

19 A. Right. But we're reviewing a data set. We're reviewing

20 300, 400, 500 addresses at a time. What I was referring to

21 is, if you are asking if we review each address before the

22 contractor goes to that address, the other contractors don't go

23 to these addresses immediately. It's a pool of addresses they

24 have, and it's the -- under their contract they are responsible

25 to schedule the work. So they may be given an address in week

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1 one, but in week six they may be doing work at that address.

2 So that's why I wanted to clarify my answer that we

3 don't -- we don't check the card at week five, let's say,

4 because they are doing it at week six. We have checked these

5 cards many, many weeks before.

6 Q. But you have checked them.

7 A. Yes, ma'am.

8 Q. You have review the historical --

9 A. Yes.

10 Q. -- water card data before an excavation is conducted;

11 correct?

12 A. Right. There's two types of reviews now. There's review

13 of the digital water card data that's been transcribed, and

14 then additionally, in May and June, we read 16,000 cards and

15 generated our own data set. So those -- those two data sets,

16 that's what we used to determine which addresses to issue to

17 the contractors.

18 Q. And are both of those data sets reflected in the column,

19 Historical Water Card Reading?

20 A. Are both of those -- they should be.

21 Q. Okay.

22 A. Well, no. I'm not sure. I'm not sure. On another

23 database that we have when we -- we have two columns. We have

24 the historical water card readings; historical would mean from

25 the transcribed data set. The water card readings we did in

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1 May and June, that's a different -- that's a set, a different

2 set. And actually, I'm not sure if that's included in the

3 water -- "Historical Water Card Reading" column.

4 Q. So you don't know what data was used to populate the water

5 card -- "Historical Water Card Reading" column?

6 A. I know for sure the historical transcribed data is in this

7 column. What I don't know is whether the May and June data we

8 collected is in this column.

9 Q. Is the historical transcribed data reviewed before

10 addresses are issued to contractors?

11 A. Yes.

12 Q. And so the City chooses the addresses where excavations

13 will occur for each phase of the Fast Start Program; is that

14 right?

15 A. Would you repeat that question, please?

16 Q. Sure. The City chooses the addresses where excavations

17 will occur for each phase of the Fast Start Program; is that

18 correct?

19 A. Yes.

20 Q. Now, the City doesn't know for certain which buried lines

21 are copper and which are lead and which are galvanized steel;

22 correct?

23 A. We don't know for sure until we have done the excavation.

24 Q. If you wanted to maximize the chance that excavations will

25 find a lead or a galvanized steel service line you would not

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1 select homes where the historical records indicate a copper

2 line, would you?

3 A. That's not necessarily so. Even though the records show

4 copper-to-copper, one of the things that we have had to do

5 in phase 5 is, even after we have hydrovaced and visually

6 confirmed copper-to-copper at the curb stop, we had to do an

7 in-home check to see if there was material, copper material at

8 the meter. Once we found copper at the meter, then, again,

9 we're triangulating data sources and reducing or increasing the

10 level of certainty that there is no non-copper material in

11 that -- in that service line serving that home.

12 So the fact that the historical records show it's

13 copper-to-copper, we certainly -- if we had 100 lead-to-lead or

14 galvanized-to-galvanized and ten copper-to-copper, we would

15 focus on the -- on the lead or galvanized ones, with one

16 caveat.

17 We are doing this in all ten zones of the city, which

18 cover the nine wards. And it was a policy decision to issue

19 addresses across the city so that the citizens -- no citizen

20 would feel they're playing second to another citizen. Every

21 ward is -- was going to be dealt with immediately when the

22 program -- throughout the program. That was one, one policy

23 decision that was made.

24 The second factor is that even when we found

25 copper-to-copper through hydrovac excavation, we have uncovered

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1 these, these splices that was -- were mentioned earlier in the

2 testimony. And so we have adjusted the excavation process to

3 uncover more service line material to have more certainty that

4 there aren't splices in some of these lines. So that's a

5 second reason why we wouldn't only focus on the galvanized or

6 lead records, historical records.

7 And then the third factor is the logistics and the

8 productivity and progress of the contractors. The contractors

9 work on streets and they have four or five pieces of equipment

10 on a street or a block. And we want them to go down that block

11 and do as many homes as possible as opposed to working on one

12 or two homes and then picking up their equipment and moving

13 their equipment to another street because there is a galvanized

14 or lead line identified on that street.

15 It's programmed so that all the lead and galvanized

16 that have been identified by excavation will be replaced by the

17 end of the program. That's a commitment and a requirement of

18 our scheduling.

19 But when the contractor does a galvanized or lead

20 service replacement is somewhat up to the contractor. But they

21 know that from the 600 addresses that each contractor has,

22 because the 6,000 total we have divided it into ten zones, so

23 each contractor has a commitment of 600 homes to deal with, if

24 out of those 600 they have 400 lead and galvanized, they have

25 to finish it within their contract period.

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1 Q. So let me make sure I understand some of the factors that

2 you just described.

3 You talked about -- and correct me if I'm wrong --

4 you talked about how, you know, you wouldn't necessarily

5 prioritize historical records that indicate copper, because

6 when you dig around the meter box you may actually find that

7 those records are wrong; is that correct?

8 A. That's one of the factors, yes.

9 Q. And so you would characterize that as a concern about

10 reliability, the reliability of the historical record; would

11 that be accurate?

12 A. That's accurate.

13 Q. So let's assume that for this data set, this data set

14 that's right in front of you, the water cards are accurate when

15 they say copper, they are accurate roughly 99 percent of the

16 time.

17 A. I'm not agreeing to that 99 percent accuracy.

18 Q. I'm not asking you to agree to it. I'm asking you to

19 assume it. Can you assume that for me?

20 A. If you would like me, I will. Yes.

21 Q. I would like you to.

22 A. Okay.

23 Q. So I would like you to assume that when it says -- in the

24 column where it reads "Historical Water Card Reading," and it

25 says copper-to-copper, that when you go to the results of that

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1 excavation in the columns that read "Service Line Exploration

2 Public Composition" and "Service Line Exploration Private

3 Composition," they also read copper-to-copper, and I want you

4 to assume that that is true 99 percent of the time. Can you do

5 that?

6 A. I can do that.

7 Q. And if that was true, would you prioritize excavating at

8 homes that have historical water card readings that say

9 copper-to-copper above those homes that have historical water

10 card readings that say lead, if you were looking for lead

11 lines?

12 A. That would be one factor, but not the only factor.

13 Q. Let me just focus back on my question. If I told you that

14 the records were 99 percent reliable, would you prioritize

15 copper-to-copper homes over lead homes in the "Historical Water

16 Card Reading" column?

17 A. I think that's a hypothetical. I guess if everything

18 you're assuming is correct --

19 Q. Yes.

20 A. -- I would say that's a reasonable decision.

21 Q. It's a reasonable decision not to prioritize copper homes,

22 homes that have a copper historical water card reading over

23 lead homes; is that right?

24 A. No. I'm saying -- I'm actually agreeing if everything

25 you're saying, your hypothetical is true, I say it would be

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1 reasonable to prioritize the homes that you know have copper --

2 that don't have copper-to-copper, to do the explorations and

3 the replacements, yes.

4 Q. Okay. And so just to make sure we're on the same page,

5 then, so if we assume that these copper records on this data

6 sheet are accurate 99 percent of the time, you would agree that

7 if you're looking for lead lines you should first dig up where

8 the historical water cards say lead; correct?

9 A. Again, if that's the only factor. I think the last part

10 of your statement is -- depends on many other factors besides

11 the factor --

12 Q. One of those other -- excuse me. Go ahead.

13 A. There's many other factors, as I said, that dictate how

14 the work is done. One of the things that I would suggest

15 you -- you review are the contract terms of the replacement

16 contractors. They are given 600 addresses, but their contract

17 is the City of Flint, and the City of Flint cannot dictate the

18 means and methods of how they do their work on the 600 homes.

19 So if the contractors choose to schedule these homes despite a

20 preference given to them, there is no contractual requirement

21 for them to do so.

22 Q. Sure. But I think you testified earlier that the City

23 chooses which 600 addresses to give to the contractor; correct?

24 A. They choose a set of addresses which include

25 copper-to-copper and non-copper as far as the records go.

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1 Q. And the City closes those addresses; correct?

2 A. The City chooses records that have copper-to-copper and

3 non-copper. Every contractor has a selection, a mix of

4 addresses, some with copper-to-copper and some not

5 copper-to-copper. These addresses aren't defined by

6 contractor. This is a list of all the addresses that have

7 been screened that will be issued in this phase.

8 Q. So let's turn to another one of the variables that

9 you mentioned that would affect the prioritization of

10 excavations, if I could describe it in that way.

11 You described a policy choice by the City to excavate

12 in many different areas of the city; is that right?

13 A. It's a policy decision to serve all Flint residents in a

14 fair and equal manner, which means that the work under the Fast

15 Start Program needs to service all of the community, not just a

16 few. And so that means all wards need to be part of the

17 program from the get-go.

18 Q. And that's regardless of the likelihood that lead or

19 galvanized steel lines are present in that ward?

20 A. No. I didn't say that. I think the -- the purpose of the

21 program is to explore and remove all the lead and galvanized

22 lines in the city. Part of that goal can only be reached by

23 exploration. So if we're exploring in all zones and all wards,

24 that's part of the commitment the City has made.

25 Q. Maybe I misunderstood, Mr. Wong.

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1 You mentioned the policy decision by the City in

2 response to a question that I asked about why the City would

3 choose to prioritize excavation at a home that has a copper

4 record over a home that has a lead or galvanized record, and

5 you said one of the factors was a policy decision by the City;

6 correct?

7 A. Correct. One of several factors, one being a policy

8 decision. Yes.

9 Q. So one reason the City could choose to excavate at a home

10 that has a historical record that indicates a copper line or

11 there may be a low likelihood of finding copper is because of

12 policy; correct?

13 A. I think you're misconstruing what I was trying to convey.

14 What I was trying to convey is that the City has made a policy

15 decision to serve all Flint citizens equally. All right?

16 Let's parse it. Let's stop there. So that's --

17 that's a statement of fact. And in implementing that policy,

18 we have decided to issue addresses to contractors working in

19 all those zones, and those addresses have both copper-to-copper

20 readings in the water cards and non-copper readings in the

21 water cards. So there is no discrimination at all.

22 Q. But if you're looking for lead and galvanized steel lines?

23 MR. KIM: Your Honor, I have got to object. I think

24 the question has been asked and answered numerous times here.

25 THE COURT: I think you made your point.

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1 MS. CHAUDHARY: Okay. I'll move on.

2 BY MS. CHAUDHARY:

3 Q. Mr. Wong, you have heard testimony on the hit rate;

4 correct?

5 A. Yes, I have.

6 Q. And the hit rate is the percentage of excavations that

7 find a lead or galvanized steel line for replacement; correct?

8 A. Correct.

9 Q. And the hit rate depends on which addresses excavations

10 are conducted; correct?

11 A. The hit rate is a finding, regardless of selection.

12 Q. Well, the hit rate for phases 1 through 4 was around

13 70 percent; correct?

14 A. Correct.

15 Q. The hit rate for phase 5 has been lower; correct?

16 A. 16 percent.

17 Q. So the hit rate changes depending on which addresses the

18 City selects for excavation; correct?

19 A. Which addresses and which areas of the city? That, I

20 would -- I would clarify that, that statement. It's not the

21 address that matters, it's the location in the city that

22 matters.

23 Q. So to take an extreme example, if the City happened to

24 select for excavation only lines that were copper, that were

25 actually copper, the hit rate would be zero; correct?

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1 A. Please repeat that.

2 Q. Sure. So if the City happened to select for excavation

3 service lines where the excavation results revealed copper

4 lines only, the hit rate would be zero; is that right?

5 A. That's correct.

6 Q. And on the other side, if the City happened to select for

7 excavations only lines that ended up being lead or galvanized

8 steel, the hit rate would be 100 percent; correct?

9 A. Correct.

10 Q. So just to circle back, the City chooses addresses where

11 excavations will occur for each phase of the Fast Start

12 Program; correct?

13 A. What I would like to do is suggest we substitute the word

14 "select" with "choose" because "choose" connotes that there is

15 some reason why you're selecting, why you're selecting an

16 address. Selection is, I think, more appropriate.

17 Q. Sure.

18 A. And they are selected based on the factors that we

19 discussed before.

20 Q. So you using "selects," let me just make sure I'm clear.

21 The City selects the addresses where excavations will

22 occur for each part of the Fast Start Program; correct?

23 A. Based on that screening process that I described, yes.

24 Q. And the City has available to it the historical water card

25 data when it makes those selections; correct?

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1 A. That's correct.

2 Q. Just a few more questions, Mr. Wong.

3 I would like to direct you to paragraph 15 of your

4 July 10 declaration. I think you -- do you still have that in

5 front of you? No? I can --

6 A. This one here?

7 Q. Yeah.

8 A. Okay. I'm sorry. Could you direct me to the location?

9 Q. To paragraph 15, please.

10 A. Paragraph 15. That's the top of the last page?

11 Q. Yes.

12 A. Okay.

13 Q. You say here that an experienced consulting statistician

14 could cost $50,000 per month; correct?

15 A. That's correct.

16 Q. And that a predictive model will take between five and

17 seven weeks to develop and calibrate?

18 A. Yes. At least.

19 Q. And seven weeks is less than two months; correct?

20 A. It's close, but less, yes.

21 Q. 1.75 months, about; right?

22 So if we assume your $50,000 estimate and time frame

23 of approximately 1.75 months, rounding up, that's about

24 $88,000; correct?

25 A. 1.75 months?

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1 Q. A little less than two months; right? Seven weeks at the

2 upper limit?

3 A. Okay. We have three to four weeks and then another two to

4 three weeks to calibrate.

5 Q. Uh-huh.

6 A. So we're saying seven weeks. It's less than two months,

7 yes.

8 Q. That's right. And so if we take that seven weeks, which

9 is roughly 1.75 months; right? A little bit less than two

10 months; is that right?

11 A. Uh-huh.

12 Q. And if we multiply it by the $50,000 per month estimate

13 that you offered, would you agree that that's roughly $88,000?

14 A. I'm not -- I don't -- not doing the math, but I accept

15 that number if you have calculated that.

16 MS. CHAUDHARY: Okay. I have nothing further, your

17 Honor.

18 THE COURT: Mr. Kim, any redirect?

19 MR. KIM: Just a few brief questions, your Honor.

20 REDIRECT EXAMINATION

21 BY MR. KIM:

22 Q. Mr. Wong, at the beginning of Ms. Chaudhary's questions

23 she mentioned a request for the modeling files that underlaid

24 the University of Michigan's predictive model.

25 A. Yes.

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1 Q. Do you recall?

2 A. I recall that, yes.

3 Q. Did those -- has the City ever had those underlying

4 modeling files, the underlying files used to create the -- to

5 do the predictive modeling?

6 A. No. They were in the -- they are -- they are the property

7 of University of Michigan.

8 Q. Okay. And have those files been provided to the City?

9 A. I actually don't know.

10 Q. Have they been provided to you or to any of the staff at

11 the Fast Start office?

12 A. They produced the plots from those files. I don't believe

13 they have given us those files. We did get some files in late

14 May or early June.

15 Q. Okay. Ms. Chaudhary focused a lot on targeting individual

16 addresses for service line replacement. Is it the practice of

17 the Fast Start office to target individual addresses when

18 assigning -- when assigning addresses to the contractors?

19 A. In most cases, we don't target individual addresses, we

20 target blocks and, let's say, neighborhoods. There are

21 situations when the contractors are out in the field with the

22 addresses they have been given and they happen across a

23 resident whose address -- whose home is in between several

24 other addresses, and they -- and oftentimes those residents

25 will go to the contractors, because they are out on the street,

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1 and say, "Why isn't my home being done?" And so that

2 information comes back to Fast Start, we research it, and if

3 they should and if they have opted in, if they have formed

4 consent, if they signed a consent form to opt into the program,

5 then we will add that address right away to that list, since

6 the contractor is already in that area.

7 Q. Okay. Thank you. Just two more questions.

8 Is the Fast Start office selecting addresses for

9 excavation in an attempt to lower the hit rate?

10 A. Absolutely not. No.

11 Q. And as the project manager you're familiar with all of

12 the -- all of these areas that are currently scheduled for

13 service line replacement; correct?

14 A. Correct.

15 Q. And are you also familiar with the areas in which service

16 line replacement is not yet scheduled?

17 A. Yes. I'm familiar with those areas.

18 Q. And do you have any reason to believe that the -- that

19 there are blocks or areas, significant blocks or areas within

20 the un -- remaining unexcavated areas that would result in a

21 significantly higher hit rate?

22 A. No, I don't.

23 MR. KIM: No further question, your Honor.

24 THE COURT: All right.

25 MS. CHAUDHARY: We have nothing further for this

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1 witness. We do have a brief rebuttal witness. And I know

2 the hour is late. I could briefly describe her expected

3 testimony, if the Court would like, to determine whether the

4 Court would think it would be appropriate to call her.

5 THE COURT: Mr. Kim, do you have any further

6 witnesses?

7 MR. KIM: No further witnesses, your Honor.

8 THE COURT: Mr. Wong, thank you. You may stand down.

9 THE WITNESS: Thank you.

10 THE COURT: Who is your rebuttal witness?

11 MS. CHAUDHARY: Your Honor, we would call Melissa

12 Mays. She lives in the outskirts of Flint and her home was

13 built in 1910. She lives in an older neighborhood. And her

14 home is not slated for excavation and has not been excavated,

15 so we could ask for maybe four minutes to present testimony

16 from her.

17 THE COURT: Do you have any dispute that that's true?

18 MR. KIM: I have no reason to dispute that, your

19 Honor.

20 THE COURT: All right. Why don't we just agree that

21 that's a stipulated fact?

22 MS. CHAUDHARY: Thank you, your Honor.

23 THE COURT: Fair enough, Mr. Kim?

24 MS. CHAUDHARY: Yes, your Honor.

25 THE COURT: All right. Fine.

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1 All right. Do you have some argument that you would

2 like to present, then, on --

3 MS. TALLMAN: Yes, your Honor.

4 THE COURT: -- on the motion which is Docket

5 Number 166?

6 MS. TALLMAN: Yes, your Honor.

7 THE COURT: That's a very silent argument, counsel.

8 Do you have argument?

9 MS. TALLMAN: Yes. If the Court is -- may it please

10 the Court, the Court should not trust the findings in the

11 Paragraph 30 Report. You heard testimony --

12 THE COURT: I'm sorry, I didn't understand what you

13 just said.

14 MS. TALLMAN: The Court --

15 THE COURT: Say it again.

16 MS. TALLMAN: The Court should not trust the findings

17 in the City's Paragraph 30 Report, the findings that there are

18 likely fewer than 18,000 lead and galvanized steel service

19 lines in Flint.

20 They were not based on a data-driven analysis, nor

21 were they based on reliable principles of statistics. To the

22 contrary, the City relied on intuitive forecasting. And while

23 intuition and guesswork may be acceptable methods of making

24 predictions under some circumstances, they are not acceptable

25 given the unambiguous requirement in the settlement agreement

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1 to conduct a, quote, "evaluation using all available data and

2 information."

3 THE COURT: I'm trying to get my arms around exactly

4 what is the nature of the relief you're seeking in this

5 motion. Let's start with that.

6 MS. TALLMAN: As relief, plaintiffs would -- are

7 seeking that the Court order the City to hire a statistician

8 to do the kind of modeling that Dr. Woods described, which

9 would not cost as much as Dr. -- as Mr. Wong testified and it

10 would not take as long.

11 In fact, you heard Dr. Woods testify that the City

12 has already done a lot of the underlying work to prepare the

13 data and get it ready to conduct a reliable predictive model.

14 THE COURT: All right. Well, your motion is to

15 enforce the settlement agreement. What provision of the

16 settlement agreement would justify that sort of relief?

17 MS. TALLMAN: So paragraph 29, I believe, requires

18 the City to conduct an evaluation. And the agreement does not

19 expressly require the creation of a statistical model, and the

20 agreement leaves open to the City a variety of methods it

21 could use to conduct this evaluation to come up with answers

22 to the two questions. But the City --

23 THE COURT: Well, three questions, actually; right?

24 MS. TALLMAN: Three questions, yes. Two that are at

25 issue in this motion.

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1 The City has not offered an alternative method that

2 is reliable and trustworthy to come up with the answers to

3 these questions. And so plaintiffs have offered what they

4 think is a reliable and justified way to go about this to come

5 up with a reliable prediction for how many lead lines there

6 are likely in the City.

7 THE COURT: Well, right. But as I understand the

8 settlement agreement, under paragraph 29, the City is required

9 to conduct an evaluation as to whether the data and

10 information available to them support any of the following

11 conclusions and then there is 1, 2, 3.

12 There's probably more than 18,000 lead lines that

13 have to be replaced, or that the allocated monies can cover

14 the costs of completing 18,000 excavations and replacements,

15 or the allocated monies can be reasonably expected to cover

16 the costs of completing 18,000 excavations and the total

17 number of additional replacement lead and galvanized steel

18 service lines anticipated in light of the conclusions. So

19 that's what the City is supposed to do, that's what the City

20 did, and you don't like the outcome.

21 So paragraph 29, I don't think, gets you to where you

22 want to go. I suppose paragraph 30 might. Paragraph 30 says

23 that if you don't like the results or if you think that they

24 are not reliable or if you don't concur in the findings,

25 specifically, that's what it says, then you can initiate the

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1 dispute resolution process, which you did. And now you're

2 here.

3 MS. TALLMAN: Correct.

4 THE COURT: Now, the dispute resolution process, I

5 don't think, talks about methodology. What you're really

6 asking, as far as I can tell, is that the reserve funds not be

7 released for other purposes to the City under the WIIN Act;

8 right?

9 MS. TALLMAN: So --

10 THE COURT: Isn't that where you're eventually trying

11 to get to here, that it's imprudent to release those

12 additional funds without having a better handle on what work

13 is left?

14 MS. TALLMAN: So our understanding is that the City

15 has already concluded that it needs that, the reserve monies,

16 the extra $10 million. So there is no dispute that those

17 extra $10 million should continue to be held in reserve in the

18 event the City needs them to complete the project.

19 THE COURT: Yes. So what are we talking about here?

20 What's left to do?

21 MS. TALLMAN: So plaintiffs are concerned that

22 because the City's predictions are not reliable and, in fact,

23 we don't know whether the data supports that there might be

24 more than 18,000 pipes that need replacement, that the City

25 might need more than the $97 million. And so the dispute

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1 is about whether it's appropriate to trigger the separate

2 obligation under the agreement for the State to take all

3 reasonable efforts to get additional funding for the City,

4 however much it needs to remove -- conduct excavations and

5 remove lead and galvanized steel service lines at the updated

6 total.

7 THE COURT: Well, there is an interim step there;

8 right? The City has to ask the State to do that; right?

9 MS. TALLMAN: Correct.

10 THE COURT: And so is that what you want? You want

11 the Court to compel the City to make the ask?

12 MS. TALLMAN: Well, we don't have -- plaintiffs don't

13 have an answer yet to the question of whether or not it's

14 reasonably likely that there were more than 18,000 service

15 lines in Flint.

16 THE COURT: Yes, but you have the data, and based

17 upon what I heard earlier today, you have a statistician

18 that's able to construct your own predictive modeling.

19 MS. TALLMAN: That's correct.

20 THE COURT: So if that's the case, why should I

21 compel the City to do that? You have got the information, you

22 have got the raw data, and you can present evidence to enforce

23 that portion of the -- to support a request to enforce that

24 portion of the settlement agreement.

25 MS. TALLMAN: Plaintiffs have not yet taken that

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1 approach. We -- I would have to confer with my counsel to see

2 whether we have that capability or Dr. Woods has that time and

3 resources to conduct that evaluation. The City's obligation

4 is to conduct that evaluation and they haven't done so yet.

5 And so we think it's important for the Court to compel the

6 City to redo the evaluation in the appropriate way.

7 THE COURT: Well, actually, based on what I have

8 heard, they have conducted that evaluation. You just don't

9 like their methodology. And where in the settlement agreement

10 do you have a right to object to that?

11 MS. TALLMAN: Respectfully, we don't agree that they

12 have done an evaluation. An evaluation is defined by Michigan

13 Courts as a careful appraisal and study, and the requirement

14 in the settlement agreement is to use all available data and

15 information. And the City did not do that.

16 THE COURT: What didn't they use?

17 MS. TALLMAN: They did not use the historical water

18 cards, and they did not do a comparison between what the

19 historical records showed and what the outcomes were from the

20 excavations up until the end of 2017 to figure out how to

21 update and make more reliable their original prediction.

22 THE COURT: All right. So it's -- what you're

23 essentially arguing is that the literal terms of the

24 settlement agreement weren't complied with because the

25 conclusions that were reached by the City were not based upon

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1 the data that they had available and could have analyzed?

2 MS. TALLMAN: Correct.

3 THE COURT: And failed to do so?

4 MS. TALLMAN: Correct.

5 THE COURT: And that's your argument?

6 MS. TALLMAN: Correct. And that they also did not --

7 the explanations that they provided and the data they provided

8 do not support the conclusions that they reached, and so the

9 conclusions that they reached are invalid.

10 THE COURT: Well, if they reached invalid conclusions

11 but they based it on data that was all of the data that was

12 available to them, that doesn't violate the settlement

13 agreement, does it?

14 MS. TALLMAN: Well, that would support plaintiffs'

15 initiation of the dispute resolution process and ultimately

16 ask for the Court to adjudicate the dispute about whether or

17 not the City's evaluation complied with the settlement.

18 THE COURT: But you're not at that point yet?

19 MS. TALLMAN: We are at that point. Well, except to

20 the extent, your Honor --

21 THE COURT: But that's not what you have asked for in

22 the motion.

23 MS. TALLMAN: We have asked for the Court to find

24 that the City's Paragraph 30 Evaluation failed to comply with

25 the settlement because they didn't consider all available data

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1 and information and they didn't use reliable methods, and,

2 therefore, the City should be required to redo the evaluation

3 to come up with a supported number.

4 THE COURT: Okay. I understand your position.

5 Mr. Kim.

6 MR. KIM: Just briefly, your Honor.

7 In regards to motion 166, plaintiffs are not correct

8 that the City did not consider all available information. As

9 Dr. Woods herself testified earlier, part of the process of

10 predicting outcomes involves weighting the underlying data

11 that you have available to you.

12 And as Mr. Bincsik and Mr. Wong testified, they

13 considered factors such as the -- such as the excavations that

14 were conducted in 20 -- in phase 4, but decided that was less

15 relevant than other data that they had available.

16 Your Honor, to the extent that the plaintiffs would

17 like to create their own predictive model and would need

18 access to the City's data, the City would, of course, be

19 willing to provide any information that it reasonably has.

20 What the City can't do -- and just to make sure I'm making

21 this clear -- is that we do not have the U of M predictive

22 model that Mr. Wong talked about. We don't -- we can provide

23 the data that we provided to University of Michigan, but in

24 terms of how that data was manipulated, how that data was

25 processed, and what the analysis was done, which I believe is

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1 what they -- what they asked for, we don't have that. So we

2 can't reasonably be expected to produce that.

3 But to the extent that we have data, especially data

4 that is now available that was not available in the beginning

5 of this year, such as the water cards that Mr. Wong testified

6 were manually transcribed over the spring, we would be happy

7 to provide that information to the plaintiffs on request.

8 THE COURT: Is U of M embargoing that information?

9 MR. KIM: They -- I don't know if they are embargoing

10 it or not or the professors are embargoing it. They have just

11 not provided it to us. They have provided us with the, I

12 guess, the outputs of that, which is what was -- I believe was

13 represented by the attachment to Mr. Wong's declaration.

14 THE COURT: Right.

15 MR. KIM: But we don't have the underlying analysis

16 that went into producing that.

17 THE COURT: Okay. What I thought I heard Mr. Wong

18 say is that this was done on kind of a pro bono basis and it

19 was sort of a teaching opportunity for individuals, probably

20 in the graduate school.

21 MR. KIM: That's my understanding as well, your

22 Honor.

23 THE COURT: And what would that be, the public policy

24 graduate school?

25 MR. KIM: I'm not entirely certain. I actually think

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1 that at least one of the professors is marketing and

2 statistics, is his area of expertise, but I have not looked

3 into their specific backgrounds.

4 THE COURT: All right. Well, I would think that with

5 a proper request that would be made available unless somebody

6 is claiming a privilege, and I can't for the life of me

7 determine what that might be.

8 MR. KIM: I don't know if it's -- well, we can make

9 the request, but they are under no obligation to produce it to

10 us, and I would be purely speculating here, but my guess is

11 that there is probably a significant dollar value involved in

12 essentially the underlying model that they are using, because

13 it can be used to -- if it works as they as -- you know, as

14 intended, it provides fairly valuable information.

15 THE COURT: All right. Well, I don't think that that

16 would be impenetrable to a subpoena.

17 MR. KIM: Thank you, your Honor.

18 THE COURT: Thank you.

19 MS. TALLMAN: Very briefly, your Honor, rebuttal.

20 THE COURT: Okay. You know there is "briefly" and

21 then there is "very briefly."

22 MS. TALLMAN: Very briefly. I wanted to correct one

23 misstatement.

24 I misspoke when I said that we, plaintiffs, have all

25 of the data the City has that would be relevant to conducting

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1 the statistical model. We have some of the data and we have

2 repeatedly asked the City for everything it has that's

3 relevant to this question, but we --

4 THE COURT: Well, Mr. Kim, I think, just said he has

5 given you everything they have, and you don't think that's

6 accurate?

7 MS. TALLMAN: For example, so I'm not sure whether

8 it's accurate or not, but we don't have, for example, any

9 information about the age of homes in various places in Flint.

10 And while we have some information about the age of the City's

11 infrastructure, and that's the fire hydrant data, to the

12 extent that the City is using additional data about its water

13 infrastructure, such as the age of the mains or other

14 materials, we don't have any of that information.

15 THE COURT: All right. Thank you.

16 MS. TALLMAN: Thank you.

17 THE COURT: I'm going to ask you, each side, to

18 submit supplemental briefs based upon the testimony that was

19 submitted today. And with respect to the plaintiffs, I'm

20 really quite interested in focusing on the precise language of

21 the settlement agreement and tie it into exactly what it is

22 that you want as relief in this case and why, under the terms

23 of the settlement agreement, you're entitled to it.

24 Now, I'm familiar with the law, of course, that

25 settlement agreements are essentially governed by the rules

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1 of contract and that the foremost task of the Court is to

2 ascertain the parties' intent, and that, of course, leads us

3 back to the language, and that's why I would like you to deal

4 with the language of the settlement agreement.

5 I think I would like you to try to limit your

6 submissions to ten pages each and I would like to see that --

7 is two weeks reasonable or do you need more time than that?

8 MR. KIM: Your Honor, my only question would

9 essentially be how quickly could we -- I would want to see the

10 transcript of the testimony that was given and I'm guessing

11 that my colleagues would as well. So if we could set a time

12 after transcripts are provided to us.

13 MS. TALLMAN: We're comfortable with two weeks. I

14 think the transcript can be ordered with a pretty quick

15 turnaround.

16 THE COURT: Well, I can make it two weeks after you

17 receive the transcript, and you can put a standard order in

18 for the transcript. I'm not asking you to expedite that.

19 MS. TALLMAN: Okay. Thank you.

20 THE COURT: All right. Now, at the fine hour of

21 6:23 in Detroit, how do you want to address 173?

22 MS. CHAUDHARY: Your Honor, we're prepared to make

23 brief statements on 173.

24 THE COURT: I'm sorry, just speak louder.

25 MS. CHAUDHARY: We're prepared to make brief -- offer

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1 brief argument on motion 173.

2 THE COURT: Let's just do that quickly and then we

3 will wrap it up for the day.

4 MS. CHAUDHARY: There is no dispute that filter use

5 after service line replacement is necessary to protect public

6 health. This is because lead levels can spike significantly

7 when a lead pipe is disturbed.

8 THE COURT: Let me just interrupt you for a minute.

9 And my understanding from the response is that the

10 City has conceded quite a bit of this motion.

11 MS. CHAUDHARY: Sure.

12 THE COURT: So what's left to decide?

13 MS. CHAUDHARY: Sure. The question for the Court is

14 the scope of the appropriate remedy given these conceded

15 violations. And it's plaintiffs' position that the Court

16 should reject the City's interpretation that it may -- that it

17 may take up to two weeks to verify faucet filter installation

18 at a home after service line replacement.

19 The City's timeline is putting residents at risk by

20 potentially exposing them to additional particulate lead in

21 their drinking water. Plaintiffs' 48-hour time frame is

22 appropriate and warranted to give effect to the purpose and

23 the language of the settlement agreement.

24 And the City's reasons as to why it cannot meet that

25 time frame are entirely artificial. Any hardship the City

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1 claims was created by its own program design. The City has

2 chosen to design a program that puts the health of Flint

3 residents in jeopardy. And the City has been well aware of

4 its filter obligations under the settlement since it was

5 executed in March of 2017.

6 Paragraph 38 of the settlement makes clear that the

7 City will be solely responsible for filter verification

8 efforts in 2018 and 2019. Nevertheless, the City chose to set

9 up the staffing and structure of the Fast Start Program in a

10 way that it makes it allegedly impossible for it to comply

11 with these obligations.

12 For example, the City has only two teams of two

13 people available to conduct follow-up filter visits after pipe

14 replacement. Why did the City choose to set up a system with

15 only four people when it has known for over a year that it

16 would be required to immediately verify faucet filter

17 installation for every pipe replaced and that verification was

18 essential to protect public health? We don't know, and in the

19 end perhaps it doesn't matter, but what matters is that the

20 City's current procedures are allowing this to happen.

21 Turning to the relief that we seek, we think that

22 the relief that we seek is especially appropriate given the

23 flagrant nature of the violations here.

24 One thing I wanted to note, that the City says that

25 it realized that it hadn't been conducting these faucet filter

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1 verification visits during phase 5 of its -- phase 4, excuse

2 me -- of its excavation work in late May, as it was collating

3 its status report to send it to plaintiffs. But the City

4 didn't -- waited six weeks to remedy that violation. It

5 didn't start those efforts until after we noticed the

6 violation.

7 And despite repeated e-mails and followup

8 correspondence from the plaintiffs asking the City to

9 immediately visit those homes and make sure that they had

10 properly installed filters, it still took weeks and weeks and

11 weeks for the City to bring itself into compliance.

12 And the City -- and we can talk about this separately

13 or with whatever argument the Court would like on motion 155,

14 but, you know, the City has shown the same preference when it

15 comes to data produced with regards to its filter verification

16 efforts. And that is why, as part of the relief we're

17 requesting for this motion, we're asking for changes to the

18 City's data collection and reporting.

19 We're asking for a declaration from someone averring

20 that someone has made a reasonable effort to review the data.

21 We're simply asking for an assurance that the data has been

22 reasonably reviewed before it is sent to plaintiffs. The

23 relief we seek doesn't require the Court to find some sort of

24 nefarious purpose on the part of the City.

25 The City objects to signing a declaration under

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1 penalty of perjury, but provides no reason why doing so would

2 be overly burdensome. We are not asking for the City to

3 promise that the data are perfect. We're asking that someone

4 say they have conducted a reasonable review of the data,

5 that it appears to be accurate and complete and consistent

6 with past productions, and that it's been reviewed and

7 reasonably -- reasonably checked.

8 And if this Court could indulge me for just a couple

9 more moments, the reasons why that's important is because when

10 you compare the data sets that the City has provided and

11 actually look at them it's very clear that that is just simply

12 not happening. You know, for -- the City has produced to us

13 four data sets related to this filter verification work since

14 the notice of violation, three since the notice of violation

15 and one with its May status report.

16 When you look at those data sets, you know, the dates

17 of service line replacement change. The dates that first

18 visits were conducted to verify filter verification change.

19 Visits to homes just disappear from one data set to the next.

20 First visits become second visits. And homes that should have

21 been listed in earlier reports appear in later reports.

22 And in the course, for example, of one weekend in

23 June, the percentage of homes for residents where residents

24 declined faucet filter verification, it drops from 88 percent

25 to 8.6 percent. So for the two weeks prior to that week, to

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1 that weekend, it was 88.6 percent. The two weeks after it

2 was -- it became 8.6 percent.

3 There are inconsistencies in the data, questions

4 about its reliability that, frankly, make us -- make us

5 question what exactly is going on on the ground and how this

6 information is being collected. And so we have asked the

7 Court to order that the City be required to submit a weekly

8 status report, but most importantly, that somebody sign a

9 declaration stating that the City has conducted a reasonable

10 review of this data and it believes it to be accurate and

11 complete.

12 THE COURT: Thank you.

13 Mr. Kim.

14 MR. KIM: Thank you, your Honor.

15 Public Health is the City's priority here. The

16 City -- and the City is focused on ensuring that the public

17 health is protected in all that we do. But the City must

18 make -- must prioritize certain activities, and its priorities

19 have been in the replacement of service lines. And there

20 was --

21 THE COURT: Let me you ask about the mechanics of

22 this. I would like to get a better understanding of it.

23 How long does it take to replace a service line?

24 MR. KIM: From start to finish?

25 THE COURT: Yes.

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1 MR. KIM: I'm not exactly sure how long the actual

2 process takes.

3 THE COURT: That's something you need to know and you

4 need to inform me about.

5 MR. KIM: I'll make sure to do that, your Honor.

6 THE COURT: And, you know, having those faucet

7 filters in place is -- do you want to consult with

8 Ms. Wheeler? I think she is trying to give you some

9 information.

10 MR. KIM: I believe she was just telling me that the

11 process takes several hours, your Honor.

12 THE COURT: Okay. But it can be done in a day?

13 MR. KIM: It can be, your Honor.

14 THE COURT: And can more than one service line be

15 replaced in a day? Do you have different teams doing that?

16 MR. KIM: I believe so, your Honor.

17 THE COURT: All right. When you're replacing a

18 service line, you're shutting the water off at the curb;

19 right?

20 MR. KIM: Correct, your Honor.

21 THE COURT: Obviously you can't replace the line if

22 you have got water flowing. How come it can't -- you cannot

23 ensure that a faucet filter is in place before you turn the

24 water back on?

25 MR. KIM: Well, as Mr. Wong set forth in his second

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1 declaration, the one in response to plaintiffs' 173 motion,

2 most of the time that happens. As part of the post -- as part

3 of the kind of post-filter replacement process, they have to

4 do the home -- in-home flushing, and part of that is also

5 verifying that the faucet filter is installed. But there

6 are certain circumstances where, essentially, the homeowner

7 might -- who is there at the beginning of the process leaves,

8 has to leave, can't -- isn't available for an hour or however

9 long the whole process takes after the filter verification is

10 completed. And what --

11 THE COURT: After the filter verification?

12 MR. KIM: After the service line replacement is

13 completed.

14 THE COURT: So then you just don't turn the water

15 back on.

16 MR. KIM: Well, a lot of times what happens, my

17 understanding and what is set forth in the declaration, is

18 that the homeowner will want the water turned on because --

19 for whatever reason, and they are informed about the need

20 for -- to conduct the flush, and they are informed about the

21 need to install and use a water filter.

22 THE COURT: Yeah. Why isn't that a part, a mandatory

23 part of the process, that you install the faucet filter as

24 part of replacing the service line, and until all of that is

25 completed, the water doesn't go back on?

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1 MR. KIM: I would have to consult with the -- with

2 the personnel involved as to why that exactly happens that

3 way, your Honor.

4 THE COURT: Unless there is some impracticality to

5 that or some hardship to it, I would be inclined to order

6 that, Mr. Kim, because from the information that I have had

7 and that's been presented to me, once that service line is

8 replaced there are contaminants that are released that might

9 be trapped in a faucet filter, which is why it's essential to

10 do that. But if people are using the water without a proper

11 filter in place during that time, the public health is in

12 danger. And I think I just heard you say that public health

13 is a number one priority of the municipal government of the

14 City of Flint.

15 MR. KIM: It is a priority, your Honor. And I would

16 need to consult with the -- with not just the project manager

17 but also the other staff to essentially identify whether or

18 not that can be done and if there are other concerns that I'm

19 not currently aware of that would argue against it.

20 THE COURT: All right. I will permit you, by the

21 beginning of next week, to furnish that information to me

22 before I rule on that motion. But you understand I'm taking

23 this very seriously, this particular motion?

24 MR. KIM: Yes, your Honor. We will have something

25 filed by next -- by Monday.

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1 THE COURT: Very well. Thank you very much.

2 Anything further, Ms. Chaudhary?

3 MS. CHAUDHARY: No, your Honor.

4 THE COURT: Thank you for your presentations today.

5 Mr. Kuhl, you were never more brilliant.

6 You may recess court.

7 THE CLERK: All rise. Court is now in recess.

8 (Proceedings adjourned at 6:33 p.m.)

9 * * *

10

11

12 CERTIFICATE OF COURT REPORTER

13

14 I certify that the foregoing is a correct transcript

15 from the record of proceedings in the above-entitled matter.

16

17 s/ Rene L. Twedt September 10, 2018


RENE L. TWEDT, CSR-2907, RDR, CRR, CRC Date
18 Federal Official Court Reporter

19

20

21

22

23

24

25

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