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Concerned Pastors for Social Action v. Khouri

United States District Court, E.D. Michigan, Southern Division

November 10, 2016

CONCERNED PASTORS FOR SOCIAL ACTION, MELISSA MAYS, AMERICAN CIVIL LIBERTIES UNION OF MICHIGAN, and NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiffs,
v.
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 PRELIMINARY INJUNCTION

          DAVID M. LAWSON United States District Judge

         The 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.

         The 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.

         I. Likelihood of Success on the Merits

         To 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.

         This 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.

         To 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).

         A. SDWA Regulations

         The 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 http://fortune.com/2016/01/25/flint-water-crisis-america-aging-cities-lead-pipes/) (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 at (http://www.theverge.com/2016/2/26/11117022/flint-michigan-water-crisis-lead-pollution-history) (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.

         1. Corrosion Control

         The 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).

         The EPA 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.” Ibid.

         All 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).

         In the 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.

         All 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.

         From 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.

         Mr. 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.

         It appears beyond dispute that the City of Flint failed to meet its responsibilities under the corrosion control regulations of the Lead and Copper Rule.

         2. Monitoring

         The 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.

         The 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).

         The 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).

         Personnel 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. § 141.86(b)(3).

         The 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. § 141.86(d)(4)(v).

         After 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.

         Additionally, 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.

         On 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.

         It 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.

         The defendants have not offered contrary evidence. It appears, therefore, that there is no dispute that monitoring requirements were not followed and continue to be disregarded.

         3. Defendants' Response

         The 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.

         B. Defendants' Responsibility

         There 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.

         It is 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, ...


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