United States District Court, E.D. Michigan, Southern Division
CONCERNED PASTORS FOR SOCIAL ACTION, MELISSA MAYS, AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, and NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiffs,
NICK A. KHOURI, FREDERICK HEADEN, MICHAEL A. TOWNSEND, DAVID MCGHEE, MICHAEL A. FINNEY, BEVERLY WALKER-GRIFFEA, NATASHA HENDERSON, and CITY OF FLINT, Defendants.
OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR
M. LAWSON United States District Judge
plaintiffs in this lawsuit seek remedial action - both
immediate and long-term - to address lead contamination found
in Flint's public water system. Presently before the
Court is the plaintiffs' motion for preliminary
injunction through which they ask the Court to order the
defendants to provide two forms of immediate relief: First,
the plaintiffs want the defendants to submit to the Court for
review and approval a plan to provide every household served
by the Flint water system with reliable access to safe
drinking water, which would include door-to-door delivery, if
needed. Second, the plaintiffs want the defendants to ensure
that Flint residents have easy access to adequate information
about lead contamination in their drinking water, the safe
and unsafe uses of unfiltered tap water, and contact
information residents can use if they need additional water
delivered or filter installation or maintenance. At the
evidentiary hearing held on September 14, 2016, the
defendants produced testimony on the condition of the water
delivered to homes in Flint through the water delivery
system, the cost of providing door-to-door delivery of
bottled water, and steps taken by City and State officials to
remediate the contaminated system. The plaintiffs offered
anecdotal evidence of the hardships endured by Flint
residents caused by the contamination, the unreliability of
the 211 telephone call-in service for water deliveries, and
the defendants' inability consistently to deliver safe
drinking water to the tap in the homes of Flint residents.
criteria for obtaining a preliminary injunction are well
known and undisputed by the parties. The relevant factors are
whether (1) the moving party has demonstrated a substantial
likelihood of success on the merits; (2) the moving party
will suffer irreparable injury without the injunction; (3)
the preliminary injunction will cause substantial harm to
others; and (4) the public interest will be served if the
injunction issues. Bays v. City of Fairborn, 668
F.3d 814, 818-19 (6th Cir. 2012) (citing Certified
Restoration Dry Cleaning Network, LLC v. Tenke Corp.,
511 F.3d 535, 542 (6th Cir. 2007)). Although these factors
are to be balanced, the failure to show a likelihood of
success on the merits is generally fatal. Ibid.;
see also Gonzales v. Nat'l Bd. of Med.
Exam'rs, 225 F.3d 620, 625 (6th Cir. 2000). The
plaintiff has the burden of proof, and that burden is the
same irrespective of whether the relief sought is mandatory
or prohibitive. United Food & Commercial Workers
Union, Local 1099 v. Southwest Ohio Regional Transit
Auth., 163 F.3d 341, 348 (6th Cir.1998). Rule 65 of the
Federal Rules of Civil Procedure authorizes the issuance of
preliminary injunctions and temporary restraining orders when
appropriate. It is appropriate here.
Likelihood of Success on the Merits
demonstrate a likelihood of success on the merits, the
plaintiffs must show that they can prove violations of
certain federal regulations enacted under the Safe Drinking
Water Act, 42 U.S.C. §§ 300f, et seq., and
that the defendants - the Michigan treasurer and members of
the Flint Receivership Transition Advisory Board (RTAB) (the
State defendants), and the City of Flint and its city
administrator (the Flint defendants) - are responsible for
curing those violations and providing safe drinking water to
the City's water customers, the residents of the City of
Flint. But at this stage of the proceeding, the plaintiffs
need not prove their case “in full.” Univ. of
Texas v. Camenisch, 451 U.S. 390, 395 (1981). They need
only show “more than a mere possibility of
success.” NE. Ohio Coal. for Homeless v.
Husted, 696 F.3d 580, 591 (6th Cir. 2012) (quoting
Certified Restoration Dry Cleaning Network, L.L.C. v.
Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007)). As the
Sixth Circuit has explained, “it is ordinarily
sufficient if the plaintiff has raised questions going to the
merits so serious, substantial, difficult, and doubtful as to
make them a fair ground for litigation and thus for more
deliberate investigation.” Six Clinics Holding
Corp., II v. Cafcomp Sys., Inc., 119 F.3d 393, 402 (6th
Cir. 1997) (citing In re DeLorean Motor Co., 755
F.2d 1223, 1229 (6th Cir. 1985)). The plaintiffs have easily
satisfied this standard.
case involves the contamination of Flint's drinking water
with minerals that are harmful to health. The plaintiffs
contend that the contamination comes from the way the
defendants have operated Flint's public water system.
begin, according to the Safe Drinking Water Act (SDWA), a
“‘public water delivery system' means a
system for the provision to the public of water for human
consumption through pipes or other constructed
conveyances.” 42 U.S.C. § 300f(4)(A). Under the
SDWA, the Environmental Protection Agency (EPA) has enacted
regulations with which operators of public water delivery
systems must comply. The plaintiffs allege that the
defendants have violated (1) the SDWA's requirement to
operate and maintain optimal corrosion control treatment, 40
C.F.R. §§ 141.81-.82; (2) the SDWA's
requirements for monitoring tap water for lead, 40 C.F.R.
§ 141.86; (3) the SDWA's reporting requirements, 40
C.F.R. § 141.90; and (4) the SDWA's notification
requirements, 40 C.F.R. § 141.85. They contend that both
the Flint and State defendants are responsible for
remediating those violations and curing the harm caused. The
SDWA allows a citizen-suit against any person “alleged
to be in violation of any requirement prescribed” by
the Act. 42 U.S.C. § 300j-8(a)(1).
City of Flint has operated a public water system for over a
century. See “Flint's Water Crisis Should
Raise Alarms for America's Aging Cities, ”
Fortune (found at
(last visited Nov. 10, 2016) (noting that “[t]he city
of Flint was incorporated in 1855, just as water mains were
becoming increasingly common in American cities”);
How the Flint River Got So Toxic, The Verge (found
(last visited Nov. 10, 2016) (stating that “[b]etween
1900 and 1930, Flint had its first boom, reaching a
population of 150, 000. The city had been drawing its
drinking and industrial water from the Flint River since
1893. . .”). Since 1965, the City of Detroit provided
treated or “finished” water to Flint. The
finished water included chemicals, such as orthophosphate, to
maintain corrosion control and mitigate the leaching of lead
into the water system from lead water pipes. After a series
of decisions discussed more fully below, Flint switched its
water source from the Detroit system to the Flint River in
April 2014. That change triggered requirements established by
the SDWA regulations relating to treatment and monitoring
drinking water in Flint's delivery system.
SDWA, 42 U.S.C. § 300f, et seq., requires the
EPA “to establish maximum contaminant level goals
(MCLGs) and national primary drinking water regulations
(NPDWRs) for contaminants that, in the judgment of the
Administrator, may have any adverse effect on the health of
persons and that are known or anticipated to occur in public
water systems.” Maximum Contaminant Level Goals and
National Primary Drinking Water Regulations for Lead and
Copper, 56 Fed. Reg. 26460-01 (June 7, 1991). In 1991, the
EPA promulgated the Lead and Copper Rule with the goal of
“provid[ing] maximum human health protection by
reducing the lead and copper levels at consumers' taps to
as close to the MCLG as is feasible.” Ibid.
MCLGs are non-enforceable health goals, whereas maximum
containment levels (MCLs) are enforceable and should be set
as close to the relevant MCLG as possible. Ibid. The
EPA's MCLG for lead is zero. Ibid. The current
MCL for lead is 15 parts per billion (ppb), at the 90th
percentile of samples collected in accordance with 40 C.F.R.
§ 141.86. 40 C.F.R. § 141.80(c)(1).
has determined that lead can enter drinking water systems
from two sources: (1) from “raw water supplies, i.e.,
source water or distributed water, and (2) corrosion of
plumbing materials in the water distribution system
(corrosion by-products). Most lead contamination is from
corrosion by-products.” 56 Fed. Reg. 26460-01.
“The amount of lead in drinking water attributable to
corrosion by-products depends on a number of factors,
including the amount and age of lead and copper bearing
materials susceptible to corrosion, how long the water is in
contact with the lead containing surfaces, and how corrosive
the water in the system is toward these materials.”
Ibid. “The amount of lead in drinking water
depends heavily on the corrosivity of the water.”
water systems are required to “install and operate
optimal corrosion control treatment.” 40 C.F.R. §
141.80(d)(1). “Optimal corrosion control treatment . .
. means the corrosion control treatment that minimizes the
lead and copper concentrations at users' taps while
insuring that the treatment does not cause the water system
to violate any national primary drinking water
regulations.” 40 C.F.R. § 141.2. “All
systems optimizing corrosion control shall continue to
operate and maintain optimal corrosion control treatment,
including maintaining water quality parameters at or above
minimum values or within ranges designated by the
State.” 40 C.F.R. § 141.82(g).
1990s, after a multi-year lead and copper corrosion control
optimization study that included Flint, the Detroit water
system administrators concluded that adding orthophosphate to
drinking water was the optimal treatment alternative for
full-scale lead corrosion control in its water system.
According to Daniel Giammar, Ph.D, an environmental engineer
with an expertise in water chemistry and its effect on
drinking water distribution systems, adding orthophosphate to
drinking water can promote the formation of a lead-phosphate
“scale” on the surface of lead pipes. Giammar
Decl. ¶ 19. In order to maintain optimal levels of
corrosion control once a stable protective scale has formed
inside of lead pipes, water systems must maintain the
stability of the scale by continuing to add orthophosphate to
the water. Id. ¶ 21.
parties acknowledge that Flint's water system includes
lead pipes. In Mr. Giammar's opinion, the constant flow
of orthophosphate-treated water from Detroit created a
chemically and physically stable lead-phosphate scale on the
interior surface of Flint's lead pipes. Id.
¶ 24. He represents that a review of the Flint water
system's tap monitoring system shows more than a decade
of lead concentrations ranging from 4 ppb to less than 2 ppb.
Id. ¶ 25. But the Flint water administrator
failed to add orthophosphate to the Flint River water used
after April 2014. That failure, according to Mr. Giammar,
caused significant damage to the lead-phosphate scale that
built up over many years. Id. ¶¶ 28-29.
This conclusion is supported by the water samples collected
from July 2014 to December 2014, and January 2015 to June
2015, where the lead levels increased to 6 ppb and 11 ppb
respectively. Id. ¶ 34. An additional set of
water samples collected during August 2015 saw an increase of
lead levels to more than 25 ppb. Id. ¶ 34.
subsequent water monitoring data collected by the EPA and the
Michigan Department of Environmental Quality (MDEQ), Mr.
Giammar calculated lead levels ranging between 8 to 11 ppb,
and between 0.9% and 1.6% of homes had lead levels above 100
ppb. Id. ¶ 43. He noted, however, that those
samples may be biased low because the samples may not have
been collected from homes with lead service lines, as is
required by the SDWA. Id. ¶ 46; see 40
C.F.R. § 141.86(a)(8). A new protective scale can take
up to twelve months to form, but Mr. Giammar's conclusion
is that the subsequent data do not show a downward trend in
the 90th percentile lead levels as would be expected if the
protective scale were reforming. ¶¶ 36-44.
Giammar also reviewed publically available tap water
monitoring data at sites that the MDEQ has designated as
“sentinel sites.” Id. ¶ 48.
Sentinel sites are homes in Flint that the MDEQ plans to
sample repeatedly over time to determine the effectiveness of
Flint's water system corrosion control. Those samples
showed a lead level of 14 ppb, and 2.1% of the samples showed
lead concentration levels of over 100 ppb. Id.
¶ 49. It was too early to make any conclusions from the
sentinel site data at the time the preliminary injunction
motion was filed, because the samples were only collected
during the course of a single month. Id. ¶ 49.
And Bryce Feighner, Chief of the Office of Drinking Water at
the MDEQ, testified at the hearing that during the first
six-month testing period, the initial lead levels were at 40
ppb, but reduced to 16 ppb by the last round of monitoring.
Mr. Feighner agrees that the action level of 15 ppb was
exceeded during that first six-month monitoring period. Most
telling, however, was Mr. Feighner's testimony that the
unfiltered tap water in Flint is not safe for the residents
to drink at this time.
appears beyond dispute that the City of Flint failed to meet
its responsibilities under the corrosion control regulations
of the Lead and Copper Rule.
change in Flint's water source from the Detroit water
system to the Flint River in April 2014 triggered the
requirement for Flint to renew its testing protocols, as
prescribed by the MDEQ rules. See Mich. Admin. R.
§§ 325.10101-.12820. The plaintiffs also argue that
the defendants did not comply with the Lead and Copper
Rule's monitoring requirements, and that the defendants
continue to ignore the monitoring requirements. Again, the
defendants do not contest this argument.
Lead and Copper Rule requires water systems personnel to
conduct periodic tap water sampling for lead. 40 C.F.R.
§ 141.86(d). Beginning in 1992, Flint was required to
complete a materials evaluation of its distribution system
“in order to identify a pool of targeted sampling
sites, . . . which [wa]s sufficiently large to ensure that
the water system can collect the number of lead and copper
tap samples required” by the rule. 40 C.F.R. §
141.86(a)(1). Flint was required to use the information
collected under 40 C.F.R. § 141.42(d) (special
monitoring for corrosivity characteristics) when conducting a
materials evaluation. 40 C.F.R. § 141.86(a)(2).
regulations require that once the sampling site pool is
established, “[a] water system shall collect each first
draw tap sample from the same sampling site from which it
collected a previous sample.” 40 C.F.R. §
141.86(b)(4). “If, for any reason, the water system
cannot gain entry to a sampling site in order to collect a
follow-up tap sample, the system may collect the follow-up
tap sample from another sampling site in its sampling pool as
long as the new site meets the same targeting criteria, and
is within reasonable proximity of the original site.”
Ibid. A first-draw sample is one liter of cold water
that has stood motionless in the system for at least six
hours taken from either the kitchen or bathroom sink tap. 40
C.F.R. § 141.86(b)(2).
operating large water systems, such as Flint's, must draw
samples from 60 to 100 single family structures designated as
“tier 1 sampling sites, ” that contain copper
pipes with lead solder installed after 1982, or lead pipes,
or are served by a lead service line. 40 C.F.R. §
141.86(a)(3) & (c). Because Flint's water system
contains lead service lines, 50 percent of the samples
collected during each monitoring period must be from sites
that include copper pipes with lead solder or lead pipes, and
50 percent from sites that are served by lead service lines.
40 C.F.R. § 141.86(a)(8). First-draw samples from
residences may be collected by the water system, or by
residents after being instructed on the methods for
collection. 40 C.F.R. § 141.86(b)(2). First-draw samples
from the service lines are conducted in much the same way,
except that the samples must be taken directly from the
service line or after flushing the water in a residence long
enough to access the water that was in the lead service line
(either by calculating the water volume or waiting for a
significant change in temperature of the water). 40 C.F.R.
regulations require Flint to sample its water system every
six months until the water system achieves lead levels at or
below 15 ppb for two consecutive six-month monitoring
periods, at which point it is allowed to reduce its sampling
sites and test only once per year. 40 C.F.R. §
141.86(d)(4) & (c). Any system that demonstrates a tap
water lead level at or below 5 ppb, and copper levels at or
below 6.5 ppb, may further reduce the frequency of sampling
to once every three calendar years. 40 C.F.R. §
Flint switched to the Flint River as a water source, the MDEQ
required the collection of tap water samples for two
six-month monitoring periods. Mich. Admin. R. §
325.10710(a)(3). However, Flint did not comply with all the
Lead and Copper Rule monitoring requirements. It appears that
there had been 324 monitoring sites used by the Flint water
system for compliance from 1992 to 2015. Rather than taking
samples from the targeted sampling sites, Flint reached out
to the general public, its own employees, and even
entertained posting requests for testing sites on Twitter.
Indeed, the Flint Utilities Manager said in an interview that
the water system “throw[s] bottles out
everywhere” to collect the required number of samples.
Pl.'s Mot., Ex. 60 at 5. It appears that only 14 of the
100 homes used in the previous six-month period were used for
the 2015 period, which is a clear violation of the Lead and
Copper Rule. See Pl.'s Mot., Ex. 61, Pls.'
App'x pp. 366-68.
five days before the end of the 2015 monitoring period, the
MDEQ informed Flint that it needed 61 more water samples, and
that based on the first 39 samples, the water system measured
over the 15-ppb action level. During this period, it appears
that the Flint population was under 100, 000 (99, 763), and
therefore only required 60 tap samples. Mich. Admin. R.
§§ 325.10710a(3). Nonetheless, the tap samples
provided from June 25, 2015 to June 30, 2015 were not from
the pre-established sampling pool, and all of the samples had
lead levels below 15 ppb.
November 9, 2015, the MDEQ sent a letter to the Flint Water
System seeking additional information about its compliance
with the Lead and Copper Rule. The letter stated that all of
the Lead and Copper reports submitted to the MDEQ certified
that all of the tap samples were collected from tier 1 sites.
However, the MDEQ stated that it could not confirm that the
324 historically used tier 1 sites indeed were qualifying
sites. For example, it could only confirm that 6 of the sites
contained lead service lines, and 26 of the sites used
service lines that were not lead. Indeed, the MDEQ stated
that there are more than 10, 000 homes and businesses in
Flint with service lines of unknown composition.
appears that Flint is continuing to violate the monitoring
requirements. The Flint water system was required to continue
water sampling for the monitoring period of January 1, 2016
to June 30, 2016. According to the plaintiffs, based on the
available data, the sentinel site monitoring does not consist
entirely of homes that meet the Lead and Copper Rule
requirements, in part, because it relies on citizen
volunteers to provide water samples. Furthermore, the EPA
noted that Flint has not “demonstrated that it has an
adequate number of qualified personnel to perform the duties
and obligations required to ensure the City's public
water system complies with the [SDWA] and the [NPDWRs],
including the [Lead and Copper Rule].” Pl.'s Mot.,
Ex. 70, Pls.' App'x p. 416.
defendants have not offered contrary evidence. It appears,
therefore, that there is no dispute that monitoring
requirements were not followed and continue to be
parties have not discussed the claimed violations of the
SDWA's reporting or notification requirements in this
injunction proceeding, and the Court need not address them.
The Flint defendants argue, however, that the plaintiffs
cannot carry their burden of demonstrating a likelihood of
success on the merits because the relief they seek is moot in
light of the pending, now implemented, water delivery plan.
The Flint defendants argue that they should be given the
benefit of the doubt that the plan will be in place and run
effectively. That argument talks past the claimed corrosion
control and monitoring requirements, however. It more
appropriately is considered as a response to the contention
that irreparable harm cannot be shown, and the Court will
discuss it when assessing that factor.
is no question that the Flint defendants bear some
responsibility for addressing the contamination problem. The
State defendants argue that the relief sought is overbroad,
and that an injunction should not issue because the State
defendants are not “operators” within the meaning
of the SDWA. That argument is not persuasive. Because of the
State defendants' initial and continuing involvement in
decisions that affect water delivery, they also are properly
subject to this injunction.
undisputed that over the last several years, Flint has
experienced economic challenges, and in 2011 the City was
placed in receivership. That year, Michigan Governor Rick
Snyder appointed Michael Brown as the emergency manager to
run the City of Flint under the Local Government and School
District Fiscal Accounting Act, Public Act 4 of 2011 (Public
Act 4) (later rejected by Proposition 12-1, effective August
8, 2012). The emergency manager “act[ed] for and in the
place and stead of the governing body and the office of chief
administrative officer of the local government.” Public
Act 4, § 15(4). The emergency manager displaced
Flint's locally elected government while the receivership
was in effect. Public Act 4, § 15(4) (“Upon the
declaration of receivership and during the pendency of
receivership, the governing body and the chief administrative
officer of the local government may not exercise any of the
powers of those offices except as may be specifically
authorized in writing by the emergency manager and are
subject to any conditions required by the emergency
manager.”). Instead, ...