Concerned Pastors for Soc. Action v. Khouri, Case Number 16–10277

• Decision Date: 10 November 2016
• Docket Number: Case Number 16–10277
• Citation: 217 F.Supp.3d 960
• Parties: 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.
• Court: U.S. District Court — Eastern District of Michigan

217 F.Supp.3d 960

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.

Case Number 16–10277

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

Signed November 10, 2016

Brooke A. Merriweather–Tucker, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, MI, David J. Shea, Shea Aiello, PLLC, Southfield, MI, Jared E. Knicley, Dimple Chaudhary, Natural Resources Defense Council, Washington, DC, Michael Edwin Wall, Natural Resources Defense Council, San Francisco, CA, Sarah C. Tallman, Natural Resources Defense Council, Chicago, IL, Glenn M. Simmington, Law Office of Glenn M. Simmington, Flint, MI, for Plaintiffs.

Joshua O. Booth, State of Michigan, Michael F. Murphy, Nathan A. Gambill, Michigan Department of Attorney General, Richard S. Kuhl, Assistant Attorney General, Lansing, MI, William Young Kim, Stacy Erwin Oakes, City of Flint, Department of Law, Flint, MI, Frederick A. Berg, Butzel Long, Detroit, MI, Sheldon H. Klein, Butzel Long, Bloomfield Hills, MI, for 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, 101 S.Ct. 1830, 68 L.Ed.2d 175 (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,...