2:16-cv-10277-MAG-SDD Doc # 1 Filed 01/27/16 Pg 1 of 58 Pg ID 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

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

Case No. 16-10277

NICK A. KHOURI, in his official

capacity as Secretary of Treasury of

the State of Michigan; FREDERICK

HEADEN, in his official capacity as

Chairperson of the Flint Receivership

Transition Advisory Board;

MICHAEL A. TOWNSEND, in his

official capacity as Member of the

Flint Receivership Transition

Advisory Board; DAVID MCGHEE,

in his official capacity as Member of

the Flint Receivership Transition

Advisory Board; MICHAEL A.

FINNEY, in his official capacity as

Member of the Flint Receivership

Transition Advisory Board; BEVERLY

WALKER-GRIFFEA, in her official

capacity as Member of the Flint

Receivership Transition Advisory

Board; NATASHA HENDERSON, in

her official capacity as City

Administrator; and CITY OF FLINT,

Defendants.

/

Hon.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF INTRODUCTION
1. The water in Flint, Michigan is not safe to drink. It has not been safe to drink since April 2014, when city and state officials began using the Flint River as a source of drinking water and caused lead to leach into the city’s water supply.
2. This case is about the government’s failure to comply with the federal law that requires cities to deliver safe drinking water to the public. The Safe Drinking Water Act directs officials who operate water systems to test drinking water for harmful contaminants and to treat the water to control for those contaminants. City and state officials’ complete disregard for those requirements is exposing the people of Flint to lead, a powerful toxin that is devastating to the human body.
3. Flint was once a prosperous city with a strong economy built around the automotive industry. But the closing and relocation of automotive plants over the past thirty years hurt the city’s economy and tax base, contributing to a shrinking population and resulting in increased unemployment, poverty, and crime. Flint is now a struggling city. More than forty percent of Flint residents live below the poverty level, and more
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than a quarter of its working-age residents are unemployed. 4. In November 2011, in response to Flint’s budget deficit and
mounting debt, Michigan Governor Rick Snyder declared a financial emergency in the city. He stripped local elected officials of all of their authority and installed a state-appointed Emergency Manager to take over and run the city’s operations. The Emergency Manager was not removable by Flint voters or otherwise accountable to the Flint electorate.
5. To save the city money, the Emergency Manager and other state officials decided to switch the city’s drinking water source from Lake Huron to the Flint River. The Flint River has long been known to residents as a contaminated dumping ground for nearby industries. In making this switch, city and state officials sent Flint River water flowing into the homes, schools, and churches in Flint without following federal requirements for treating and testing drinking water for lead.
6. These decisions have endangered the health of Flint’s residents. When run through the city’s aging metallic pipes, the corrosive Flint River water ate away at those pipes, causing lead to leach into drinking water. The people of Flint have been exposed and are still being exposed to high levels of lead in their water. In the past two years, the percentage of Flint
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children with elevated levels of lead in their blood has doubled and in some areas has nearly tripled.
7. Flint residents began raising concerns about the safety of their drinking water nearly two years ago. Government officials dismissed their concerns and insisted that the water was safe to drink. State officials even disregarded researchers’ findings that the water contained dangerously high levels of lead. Not until a national spotlight was focused on Flint did city and state officials belatedly acknowledge a problem.
8. Despite this far-too-late acknowledgement, the problems in Flint have not been fixed. Public trust has been eroded by government officials’ efforts to evade responsibility in this crisis. The damage done to city pipes from the Flint River water means that lead will continue to contaminate Flint’s drinking water. This contamination poses an ongoing health risk to the city’s residents, especially young children, who are most vulnerable to the effects of lead.
9. The harms suffered by Flint residents will not be addressed until city and state officials properly treat Flint’s water to control lead, properly test the water for lead contamination, promptly notify residents of testing results, and report their activities to state regulators, all as required
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by the Safe Drinking Water Act. 10. Plaintiffs are individuals and citizens’ groups whose members
live in homes served by Flint’s water system. They bring this suit as citizens to ensure that the water provided to their homes will no longer threaten their health, and to address the medical and health harms they have suffered.
JURISDICTION AND VENUE 11. This Court has subject matter jurisdiction over this action pursuant to the Safe Drinking Water Act, 42 U.S.C. § 300j-8(a), and the federal-question jurisdiction statute, 28 U.S.C. § 1331. The Court may award Plaintiffs all necessary injunctive relief pursuant to the Safe Drinking Water Act, 42 U.S.C. § 300j-8(a), (e), and declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202. 12. Venue is proper in this district under 28 U.S.C. § 1391(b)(2) because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this judicial district, in Flint, Michigan. 13. Plaintiffs have provided Defendants, the Administrator of the U.S. Environmental Protection Agency (EPA), and the Michigan Attorney General with at least sixty days’ written notice of the violations of law
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alleged here in the form and manner required by the Safe Drinking Water Act. 42 U.S.C. § 300j-8(b); 40 C.F.R. §§ 135.11-.13. A copy of Plaintiffs’ November 16, 2015 notice letter is attached as Exhibit A to this Complaint.
THE PARTIES 14. Plaintiffs consist of organizational plaintiffs Concerned Pastors for Social Action (Concerned Pastors), American Civil Liberties Union of Michigan (ACLU-MI), and Natural Resources Defense Council, Inc. (NRDC), and individual plaintiff Melissa Mays. 15. Concerned Pastors is a nonprofit association of religious leaders and congregations from more than thirty predominantly African American churches and ministries in the City of Flint (City) and its surrounding communities. The association was founded nearly fifty years ago to protect the rights of the underserved and improve the lives of the people of Flint. Concerned Pastors has been organizing and advocating for safe drinking water in Flint for nearly two years. Its efforts include holding public rallies and meetings, liaising with state and local elected officials, and distributing thousands of cases of bottled water and water filters to community members. Concerned Pastors is committed to protecting the health of Flint’s children and families from the City’s contaminated drinking water.
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Concerned Pastors is organized under the laws of Michigan and has an office address of 2200 Forest Hill, Flint, Michigan 48504.
16. Plaintiff ACLU-MI is a nonprofit organization founded in 1959. ACLU-MI’s mission is to protect the freedoms and rights of all Michigan citizens. Through public education, advocacy, organizing, and litigation, ACLU-MI works to guarantee the benefits of our nation’s laws to everyone. ACLU-MI played a significant role in investigating the water problems in Flint while the City was under emergency management and exposing the lead contamination in its drinking water. ACLU-MI has approximately 9,000 members, more than ninety-five of whom live in Flint. ACLU-MI is incorporated under the laws of Michigan and has an office address of 2966 Woodward Avenue, Detroit, Michigan 48201.
17. Plaintiff NRDC is an international, nonprofit environmental organization. NRDC engages in research, advocacy, and litigation to protect public health and reduce the exposure of all communities to toxic substances. NRDC’s work includes advocacy aimed at ensuring that all Americans have access to safe and affordable drinking water that is free from dangerous contaminants. Founded in 1970, NRDC has more than 294,000 members nationwide, including more than 8,600 members who
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reside in Michigan, eighty of whom live in Flint. NRDC is incorporated under the laws of New York and is headquartered at 40 West 20th Street, New York, New York 10011.
18. Concerned Pastors, ACLU-MI, and NRDC bring this action on behalf of their members. Members of these organizations are residents of Flint whose homes are served by the City’s water system (Water System). These members and their families live, work, recreate, attend church, and go to school in buildings that receive Flint’s water.
19. Members of Concerned Pastors, ACLU-MI, and NRDC living in Flint are harmed, and will continue to be harmed, by Defendants’ violations of the Safe Drinking Water Act unless this Court grants the requested relief. These members are harmed, and will continue to be harmed, because they have an increased risk of exposure to elevated levels of lead in their drinking water.
20. High levels of lead have been found in drinking water in homes and schools throughout Flint. Members of Concerned Pastors, ACLU-MI, and NRDC are reasonably fearful of exposure to lead from their drinking water. They are concerned about their health and the health of their children, including potential long-term developmental problems.
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21. Because of these members’ reasonable concerns about lead exposure, they use bottled water and/or install water filters in their homes to minimize their risk. Members of these organizations would prefer to use unfiltered tap water that they purchase from the Water System, rather than having to incur additional costs and inconvenience to use bottled water and/or install water filters. These filters, if not used, changed, and maintained regularly and properly, can stop working or even make lead problems worse. Members also have visited and will continue to visit doctors to have their blood tested for lead.
22. Members of Concerned Pastors, ACLU-MI, and NRDC are harmed by these and other actions they are taking to protect themselves and their families from Flint’s water. Their injuries will be redressed by an order requiring Defendants to monitor and control for lead in Flint’s drinking water in accordance with the Safe Drinking Water Act and to comply with the Act’s reporting and notification requirements. Such an order will enable members to make informed decisions about whether their tap water is safe to drink and will remediate the dangerous conditions and health risks that the members continue to be exposed to as a result of Defendants’ continued noncompliance.
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23. Plaintiff Melissa Mays and her husband live in Flint with their three sons, ages eleven, twelve, and seventeen. From when she moved to Flint in 2002 until September 2014, Ms. Mays and her family used tap water supplied by the Water System for drinking and cooking. In September 2014, after the City issued a temporary advisory instructing all residents to boil their drinking water, Ms. Mays and her family stopped drinking Flint’s water. In January 2015, Ms. Mays and her family stopped cooking with the City’s water.
24. Ms. Mays is concerned about her health and the health of her family. She is harmed because she and her family have an increased risk of exposure to elevated levels of lead in their drinking water. She is reasonably fearful that she and her family have been exposed and will continue to be exposed to lead if they drink and cook with Flint’s water. She is harmed, and will continue to be harmed, by Defendants’ violations of the Safe Drinking Water Act, unless this Court grants the requested relief.
25. Ms. Mays’ concerns have caused her to stop using Flint’s water for drinking and cooking, to minimize her risk of exposure to lead. Although Ms. Mays would use her home’s tap water if it were safe to
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drink, Ms. Mays’ reasonable fears about lead in her tap water have forced her to purchase water filters and bottled water for herself and her family and to visit doctors routinely to monitor her family’s health. Ms. Mays has been forced to take these actions, including incurring considerable costs and inconvenience, to protect herself and her family from lead in Flint’s drinking water.
26. Ms. Mays’ injuries will be redressed by an order requiring Defendants to monitor and control for lead in Flint’s drinking water and report information in accordance with the Safe Drinking Water Act.
27. Defendant Nick A. Khouri is sued in his official capacity as Secretary of Treasury of the State of Michigan. He oversees and manages the City’s operations while the City remains under state control. Pursuant to his authority under the Michigan Local Financial Stability and Choice Act, see Mich. Comp. Laws § 141.1561(2), Defendant Khouri must approve amendments to the City budget, including amendments resulting from large contracts the City enters. He or his designee must also sit on the Flint Receivership Transition Advisory Board (Board), a group of stateappointed officials presently monitoring the City. Id. §§ 141.1552(3), .1563(2). Defendant Khouri is an operator of the Water System within the
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meaning of the Safe Drinking Water Act. 28. Defendant Frederick Headen is sued in his official capacity as
Chairperson of the Board, and Defendants Michael A. Townsend, David McGhee, Michael A. Finney, and Beverly Walker-Griffea are sued in their official capacities as Members of the Board. The Board directs the City’s affairs alongside city officials. The Board must approve certain contracts and all resolutions, ordinances, and budget amendments adopted by the City Council before they can take effect, including those concerning the operations of the Water System. Defendants Headen, Townsend, McGhee, Finney, and Walker-Griffea are operators of the Water System within the meaning of the Safe Drinking Water Act.
29. Defendant Natasha Henderson is sued in her official capacity as the City Administrator of Flint. She directs and supervises the day-to-day operations of the City, including the operations of the Water System. Flint’s Emergency Manager appointed Defendant Henderson to her position. Defendant Henderson is an operator of the Water System within the meaning of the Safe Drinking Water Act.
30. Defendant City of Flint is the owner and an operator of a “public water system” as defined by the Safe Drinking Water Act. 42 U.S.C.
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§ 300f(4); 40 C.F.R. § 141.2. A public water system is a system that provides drinking water through pipes to at least twenty-five people, and includes water collection, treatment, storage, and distribution facilities. 42 U.S.C. § 300f(4); 40 C.F.R. § 141.2. As an owner and operator of a public water system, the City is also a “supplier of water.” 42 U.S.C. § 300f(5); 40 C.F.R. § 141.2. The Water System is a large public water system for purposes of the Act. 40 C.F.R. § 141.2.
FACTS Harmful effects of lead 31. Lead can harm nearly all of the body’s functions and organs, and is particularly damaging to the nervous system. 32. Young children are especially vulnerable to lead. Lead exposure in children can cause a wide array of problems, but is most harmful to a child’s developing brain. Even low levels of lead exposure during childhood can result in lower intelligence, poorer academic performance, developmental delays, attention deficits, impulsivity, and other behavioral problems. Some of these effects appear to be irreversible. 33. Lead can pass from a pregnant woman to her developing baby, which can cause the baby to be born premature or underweight, and can
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harm the baby’s brain. Lead can also pass from nursing mothers to their babies through breastmilk.
34. Exposure to lead also harms adults, including by causing nerve disorders, decreased kidney function, reproductive problems, and gastrointestinal damage. Adults exposed to lead may also suffer from muscle and joint pain, memory and concentration problems, and high blood pressure.
35. Lead is uniquely harmful because, after it enters the bloodstream, it is distributed throughout the body just like iron and calcium. It settles in bones, where it interferes with the production of blood cells and the absorption of calcium. Calcium is necessary for muscle and nerve function, and for bone growth in children. Lead may remain stored in bones for years, from where it can be reabsorbed into blood during times of physiological change, including stress, pregnancy, lactation, broken bones, and advanced age.
36. People can be exposed to lead by breathing air containing lead particles or by ingesting water, food, or dust contaminated with lead.
37. Children and adults who have been exposed to lead may not immediately show symptoms. The effects of exposure often do not appear
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for years, even long after measures of lead levels in blood have returned to normal.
38. There is no safe level of lead in blood. Lead in drinking water 39. Water sources vary in terms of their chemical properties. When water displays certain characteristics including an acidic pH, it is considered corrosive. 40. Corrosive water dissolves metals from metallic pipes at a high rate. This can cause lead contained in pipes and the solder joining pipes to leach into drinking water in significant amounts. See 56 Fed. Reg. 26,460, 26,463, 26,466 (June 7, 1991). This leaching can continue indefinitely. Id. at 26,466. 41. The amount of lead that leaches into drinking water depends heavily on the corrosivity of the source water. Id. 42. Over the past several decades, drinking water has become a more significant source of lead exposure, as regulation has reduced the risk of lead exposure from other sources such as lead paint and leaded gasoline. Infants who rely on formula may receive more than eighty-five percent of their exposure to lead from drinking water. Id. at 26,470.
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43. There is no safe level of lead in drinking water. The Safe Drinking Water Act’s approach to controlling lead in drinking water 44. The Safe Drinking Water Act (the Act), 42 U.S.C. § 300 et seq., is the federal law that protects Americans from harmful contaminants in their drinking water. 45. To achieve this goal, the Act requires owners and operators of public water systems to test their water for specified contaminants, treat the water to control for those contaminants, and provide certain reports and notices to customers and regulators. See, e.g., 42 U.S.C. § 300g-1; 40 C.F.R. §§ 141.22-.26, .31, .61-.66, .151, .201. Each of these steps is essential to reducing lead levels in tap water and informing the public about the health risks posed by their drinking water. See 42 U.S.C. § 300g-1(b)(1)(A). 46. The Act also requires public water systems to control for lead. The requirements for controlling lead in drinking water are set forth in regulations issued under the Act known as the Lead and Copper Rule (the Rule). 40 C.F.R. §§ 141.80-.91. 47. EPA is charged with issuing regulations to implement the Safe Drinking Water Act and enforcing the Act’s requirements if states fail to do
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so. 42 U.S.C. § 300g-2. Almost every state, including Michigan, has been delegated primary responsibility for ensuring that public water systems comply with the Act’s requirements. The Michigan Department of Environmental Quality (MDEQ) is responsible for enforcing the Safe Drinking Water Act in Michigan. See Mich. Comp. Laws § 325.1003.
Corrosion control 48. EPA promulgated the Lead and Copper Rule in 1991. See 56 Fed. Reg. at 26,460. The Rule requires public water systems to treat drinking water to control the leaching of lead from pipes and solder. See 40 C.F.R. § 141.80(b), (d). 49. The Rule directed all large public water systems to identify and implement an “optimal” treatment program to reduce corrosion of lead pipes and solder by January 1, 1997. Id. § 141.81(d)(4). “[O]ptimal corrosion control treatment” is defined as the treatment that minimizes lead concentrations in consumers’ tap water. Id. § 141.2. It often involves adding chemicals to the water to reduce its corrosivity and control its effect on leaded pipes and solder. 50. Certain treatment chemicals, such as phosphates, inhibit corrosion. They work by forming a protective coating inside of water pipes.
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This protective coating develops over many years. The coating helps slow the corrosion of leaded pipes and solder, reducing the amount of lead that leaches into drinking water. When highly corrosive water that is not treated with an inhibitor flows through leaded water pipes, this protective coating is destroyed, increasing the amount of lead that enters into drinking water. Corrosive water can irreversibly damage water pipes.
51. Once a water system has optimized its corrosion control treatment program, it is required by the Rule to “continue to operate and maintain optimal corrosion control treatment.” 40 C.F.R. § 141.82(g).
Tap water monitoring 52. The Rule also requires water systems to conduct periodic monitoring for lead in household tap water. Id. § 141.86. Monitoring for lead at consumers’ taps is necessary to measure lead levels in drinking water. This is because lead can enter the water after it leaves the water system’s treatment plant, as it travels through pipes towards consumers’ homes. 53. The Rule’s tap water monitoring requirements are designed to test for lead under worst-case conditions, including by testing at homes that are most at risk for elevated lead levels. Homes are at high risk if they
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contain lead plumbing or if they are served by lead service lines. 56 Fed. Reg. at 26,514; see 40 C.F.R. § 141.86(a). Service lines are pipes that connect household plumbing to the main water distribution pipe in the street. In older water distribution systems, such as the system in Flint, these service lines often are made of lead.
54. Monitoring at high-risk homes is critical to ensuring that elevated lead levels in drinking water are detected, because lead is not distributed uniformly throughout a water system. 56 Fed. Reg. at 26,514. Instead, lead pieces may break away from a lead service line and travel into a customer’s home without dissolving and spreading evenly throughout the water in the distribution system. These lead pieces result in intermittent but large spikes in the water’s lead levels. Even a single sample showing elevated levels of lead indicates that these dangerous lead pieces may be present more widely in the system.
55. Targeting high-risk homes thus makes it more likely that a water system will detect whether lead is breaking off or leaching from the Water System’s pipes or solder. Such targeting also helps water systems and regulators determine whether a system has minimized lead levels in drinking water by operating an optimized corrosion control treatment
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program. Id. 56. The Rule requires public water systems serving more than
100,000 people to collect a set of at least 100 tap water samples twice each year. 40 C.F.R. § 141.86(c), (d)(1). Water systems serving between 10,001 and 100,000 people must collect at least sixty tap water samples twice each year. Id. A water system has six months to collect each set of tap water samples. Id.
57. Each time a water system completes a six-month monitoring period, it must calculate whether more than ten percent of the samples collected have a lead concentration greater than 15 parts per billion (ppb). See id. §§ 141.80(c), .90(a)(1)(iv). EPA found that lead levels of 15 ppb or less were representative of effective corrosion control treatment. 56 Fed. Reg. at 26,490. EPA concluded that when more than ten percent of tap water samples collected by a water system exceed this 15 ppb threshold, known as the “lead action level,” additional treatment of drinking water would be “appropriate to protect public health.” Id. at 26,491.
58. If more than ten percent of samples collected during a monitoring period have a lead concentration in excess of the lead action level (15 ppb), the water system must take additional steps to protect its
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customers from lead exposure. 40 C.F.R. §§ 141.84(a), .85-.86; 56 Fed. Reg. at 26,478. These steps include identifying and reporting to the state the number of lead service lines in the water system, 40 C.F.R. § 141.90(e); replacing a portion of the system’s infrastructure with pipes and solder that are “lead free” as defined by the Safe Drinking Water Act, id. § 141.84; conducting additional monitoring of the system’s source water to determine whether additional treatment is needed, id. §§ 141.83, .88(b); and conducting additional tap water monitoring, id. § 141.86(d)(4)(vi)(B).
59. As part of these additional steps, water systems must also offer to sample the tap water of any customer who requests it, id. § 141.85(c), and educate the public about the risks of lead and ways consumers can reduce their exposure to lead in drinking water, id. § 141.85(b).
60. A water system may reduce the number of tap water samples it collects and the frequency of its monitoring if it meets certain criteria for two consecutive monitoring periods. First, less than ten percent of tap water samples collected during each monitoring period may exceed the lead action level. Id. § 141.86(d)(4)(ii). Second, the water system must show that it is maintaining optimal corrosion control treatment. It can show this by maintaining prescribed values for certain water-quality indicators,
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including pH and other measures of the water’s corrosivity. Id.; see id. § 141.82(f).
61. If each of these conditions is met for two consecutive monitoring periods, a state may allow the water system to reduce its monitoring frequency to once per year, and may reduce the required number of samples. Id. § 141.86(d)(4)(ii). If the water system continues to meet these conditions for additional monitoring periods, the water system may become eligible to reduce its monitoring frequency further, to once every three years. Id. § 141.86(d)(4)(iii).
62. If, for any monitoring period, the water system exceeds the lead action level, or if water-quality monitoring shows problems with the system’s corrosion control treatment, the water system must resume collecting a set of tap water samples every six months. Id. § 141.86(d)(4)(vi)(B).
63. The Lead and Copper Rule requires water systems to report detailed information about their tap water monitoring to the state enforcement agency. Id. § 141.90. Water systems must also notify customers of the individual results of tap water samples collected from their homes. Id. § 141.85(d)(1)-(2).
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64. EPA promulgated the Lead and Copper Rule because it understood the harmful effects that lead-contaminated drinking water can have on citizens. See 56 Fed. Reg. at 26,463-66, 26,467-71. The Rule’s requirements are intended to force public water systems to remain vigilant about the possible infiltration of lead into drinking water, and to take critical steps in the event of contamination. See id. at 26,481-82.
State control over Flint 65. In November 2011, pursuant to Michigan’s Local Financial Stability and Choice Act, Governor Snyder declared a financial emergency in Flint and placed the City in a state-controlled receivership. 66. A receivership is a process whereby local government officials are stripped of authority in favor of state-appointed personnel. Those state appointees control the local government’s finances and operations. See Mich. Comp. Laws §§ 141.1549(1)-(2), .1551(1), .1552. Among the purposes of the receivership is to “assure the provision of necessary government services essential to public health, safety, and welfare.” Id. § 141.1543(a). 67. After placing the City into receivership, Governor Snyder appointed an Emergency Manager to govern all of the City’s operations. See id. §§ 141.1542(q), .1549(2). Through this appointment, Governor Snyder
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removed authority from Flint’s elected Mayor and City Council. The Emergency Manager served at the pleasure of the Governor and could not be removed by Flint voters. Id. § 141.1549(3)(d).
68. From November 2011 to April 2015, Flint had four successive emergency managers. The emergency managers were vested with “broad powers” to address the City’s financial emergency. These powers included the authority to revise the City’s budget; make, approve, or disapprove any contract; supervise heads of city departments; and exercise the powers of “any officer, employee, [or] department . . . of the local government, whether elected or appointed.” Id. §§ 141.1552(1)(b), (g), (n), (ee), .1549(2). The power of the emergency managers was “superior to and supersede[d]” that of the City’s employees, departments, and elected officials. Id. § 141.1552(1)(ee).
69. In early 2015, the Emergency Manager hired Defendant Natasha Henderson as City Administrator. The Emergency Manager gave Defendant Henderson full authority to direct and supervise the day-to-day operations of the City, including directing the head of the Department of Public Works and managing the operations of the Water System. The Utilities Department is located within the Department of Public Works and
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is responsible for the supply and maintenance of water services. Defendant Henderson also must approve and cosign with the Mayor all contracts entered into, modified, or terminated by the City.
70. Since her appointment, Defendant Henderson has directed the operation of the Water System. For instance, she has managed the City’s purchases of water meters, plumbing supplies, and chemicals to treat Flint River water at Flint’s Water Treatment Plant. In March 2015, she decided that the City could hire a contractor to provide emergency leak detection services for the Water System, and allowed the City to accept a $900,000 state grant to pay for water-leak surveys. In April 2015, Defendant Henderson decided that the City could enter into a contract with consultants to provide design, procurement, and construction services to the Water Treatment Plant to install a new filter system.
71. On April 28, 2015, the Emergency Manager informed Governor Snyder that Flint’s financial emergency had been rectified. See Mich. Comp. Laws § 141.1562(1). Governor Snyder then removed the Emergency Manager and, in his place, appointed the Receivership Transition Advisory Board to manage the City’s affairs alongside city officials for the duration of Flint’s receivership. See id. § 141.1563(1). The Board’s members now
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include Defendants Frederick Headen, Michael A. Townsend, David McGhee, Michael A. Finney, and Beverly Walker-Griffea.
72. The Board has had authority over the operations of the City since its creation last spring. It must approve all ordinances and resolutions adopted by the City Council before they take effect, and must approve purchases and contracts over $75,000. The City Administrator advises and reports to the Board. She is required to submit regular reports to the Board regarding her activities and the overall operation of the City. Approval of the Board is also required before the Mayor or City Council can change the responsibilities of the City Administrator.
73. Since its formation, the Board has made a number of decisions directing the operation of the Water System. For example, in August 2015, the Board decided that the City could enter into a multi-year environmental monitoring services contract with a testing laboratory and decided to allow the City to purchase chemicals to be used to treat water at Flint’s Water Treatment Plant. In October 2015, the Board decided whether the City could purchase water distribution pipe repair parts for use in maintaining the Water System.
74. The Board is the primary but not exclusive state entity that
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manages the City’s operations during the City’s receivership. The State Treasurer, Defendant Nick A. Khouri, also manages aspects of the City’s operations. For example, during the pendency of the City’s receivership, orders by the Emergency Manager may be amended only by the Board, but the State Treasurer’s approval is also required. Similarly, the Mayor and City Council cannot amend the budget that was adopted by the Emergency Manager without approval of both the Board and the State Treasurer.
75. The State Treasurer also exerts control over the Water System, including by having the final authority to decide whether the Water System can make large operational changes that involve budget amendments. For instance, on information and belief, in early 2014, the State Treasurer decided whether the City could expend more than $3 million to upgrade its Water Treatment Plant to allow the City to use the Flint River as its primary drinking water source. The State Treasurer also exercised final decision-making power over the Water System’s choices about where to get its drinking water.
76. Flint remains under the management of the Board and State Treasurer. The Mayor and City Council are stripped of all authority except as “specifically authorized in writing by the emergency manager” prior to
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the elimination of his position last spring. Mich. Comp. Laws § 141.1549(2). The Mayor and City Council are powerless to change any decisions made by the Emergency Manager until one year after Governor Snyder terminates the City’s receivership.
Changes in Flint’s drinking water supply 77. Flint’s Water System provides drinking water to nearly 100,000 people. The Water System includes the Flint Water Treatment Plant and more than 600 miles of water distribution pipes. 78. The Water System also has approximately 32,900 service line connections, points where household and building plumbing connect to main water distribution pipes. At least 15,000 of these connections are through lead service lines. 79. For decades prior to 2014, the Water System purchased pretreated or “finished” drinking water from the Detroit Water and Sewerage Department (Detroit), which draws water from Lake Huron. 80. “Finished” water is water that is ready to be delivered to customers for consumption without further treatment. See 40 C.F.R. § 141.2. The Water System received finished water from Detroit and distributed it through its pipes and service lines to customers. Detroit treated the water
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with orthophosphate to reduce the amount of lead leaching from pipes and solder.
81. In March 2013, partially in response to rising water rates charged by Detroit, the City Council voted to join the Karegnondi Water Authority (KWA), a newly formed water supply system. The KWA plans to build a new pipeline to distribute Lake Huron water directly to midMichigan communities, including Flint. The KWA pipeline is scheduled for completion in June 2016.
82. The City Council’s vote to join the KWA was not immediately effective because the City was in state receivership. Only the Emergency Manager and the State Treasurer had the power to authorize the City to enter into a contract to join the KWA. See Mich. Comp. Laws § 141.1552(1)(g), (3). The Emergency Manager authorized the KWA contract on March 29, 2013.
83. On April 16, 2013, after evaluating various options for the City’s drinking water supply, the State Treasurer also authorized the KWA contract.
84. Although Detroit sought to avoid losing Flint as a customer, the Emergency Manager rejected Detroit’s final offer to renegotiate rates.
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Detroit then terminated its existing contract with Flint. Pursuant to the contract, the termination was scheduled to take effect a year later, in April 2014. This was at least eighteen months before the new KWA pipeline was expected to be ready.
85. Although Detroit offered to negotiate a short-term contract to supply drinking water to Flint during the interim period, the Emergency Manager declined Detroit’s proposals.
86. In early 2014, the Emergency Manager and state officials decided that the Water System would use the Flint River as a primary drinking water source until the KWA pipeline was completed.
87. The Flint River suffers from significant water-quality problems. Industrial waste and agricultural runoff have contributed to excessive contamination. Fish in the River contain mercury, a potent neurotoxin, and polychlorinated biphenyls (PCBs), which are carcinogens. Swimming is not recommended in the River after rain due to elevated levels of bacteria.
88. Before switching to the Flint River as a water source, the Water System had not treated its own water on a regular basis for nearly fifty years. It had never undertaken the analysis required by the Safe Drinking Water Act to identify and understand how a water system optimizes
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corrosion control treatment for drinking water. The Water Treatment Plant’s staff had not previously been responsible for managing the treatment of water to control corrosion of lead pipes and solder.
89. In 2011, outside consultants for the City analyzed whether the Flint River could be used as the City’s permanent primary source of drinking water. The consultants concluded that the Flint Water Treatment Plant would need about $50 million in upgrades to equipment and systems to assure reliable delivery of safe drinking water to customers. Nonetheless, the Water System did not perform all of the recommended upgrades in advance of distributing Flint River water to customers’ homes in 2014.
90. On April 29, 2014, the Water System began pumping Flint River water through the System’s distribution pipes and into customers’ taps.
91. The Water System did not treat the river water at all to reduce its corrosivity and minimize the leaching of lead from pipes and solder into customers’ drinking water.
The effects on customers’ drinking water 92. In the months following the Water System’s switch to the Flint River, customers reported that their tap water was discolored, laden with
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sediment, and foul-smelling. Customers also reported skin rashes, hair loss, and vomiting after drinking and/or bathing in the water.
93. In the summer of 2014, testing conducted by the Water System showed elevated levels of total coliform bacteria, bacteria found in soil and in human and animal waste, in Flint’s drinking water. The City was forced to issue boil-water notices to some of its customers.
94. To control the high levels of total coliform bacteria, the Water System increased its use of disinfectants.
95. In December 2014, MDEQ notified the Water System that it was in violation of the Safe Drinking Water Act after high levels of total trihalomethanes—byproducts of disinfection—were detected in the water. Trihalomethanes can cause serious health problems, including an increased risk of cancer.
96. Despite these Safe Drinking Water Act violations, city and state officials continued to tell Flint residents that their water was safe to drink.
97. Because the Water System had begun using a new water source, MDEQ instructed the System to conduct lead tap water monitoring for two six-month periods, gathering one hundred samples per period. MDEQ had the authority to require one hundred samples, even though in
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2014 Flint’s population had fallen below 100,000 for the first time since the 1920s. See 40 C.F.R. §§ 141.81(b)(iii), .86(d)(vii). The Water System initiated the first six-month monitoring period in July 2014, and the second in January 2015.
98. To collect these samples, the Water System instructed customers to flush their taps for at least five minutes and then allow the water to sit for at least six hours before drawing the sample. This practice, known as “pre-flushing,” is intended to minimize the amount of lead captured in the sample and results in an under-reporting of the concentration of lead in drinking water.
99. Even though the Water System engaged in practices that underestimate lead concentrations in drinking water, certain tap water samples still returned high levels of lead. In February 2015, at least one customer’s water contained lead concentrations of more than 100 ppb, more than six times the lead action level of 15 ppb. Subsequent testing at the same home revealed lead levels of nearly 400 ppb. Medical records showed that the blood lead level of the customer’s child had more than tripled since the Water System began using Flint River water.
100. That customer, concerned about the high levels of lead in her
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water, contacted EPA. After learning of her test results, staff in EPA’s regional office told MDEQ that the results raised significant concerns about the corrosion of lead pipes within the Water System. An EPA Regulations Manager later wrote a memo raising a “serious concern” about the high lead levels detected in the Water System’s drinking water and the System’s failure to use any treatment to mitigate lead leaching from pipes and solder. EPA shared the memo with MDEQ.
101. By February 26, 2015, the Water System, state officials, and EPA staff were all aware of sampling results showing high levels of lead in Flint’s drinking water. No one notified Flint residents.
102. In March 2015, in response to growing complaints from the community, the City Council voted to do “all things necessary” to end the use of the Flint River as a water source. This vote had no effect, because the City remained under the control of state-appointed officials. The Emergency Manager refused to approve the City Council’s vote, asserting that Flint’s tap water was safe to drink and calling the elected officials’ effort to return to Detroit water “incomprehensible.”
103. In July 2015, the Water System sent a letter to its customers stating that their tap water was safe to drink and in compliance with all
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Safe Drinking Water Act requirements. The Water System nonetheless advised elderly residents, infants, and those with a severely compromised immune system to consult their doctors before drinking the water.
104. During the next two months, in response to intensifying citizen concerns about lead in the City’s drinking water, researchers from Virginia Polytechnic Institute and State University (Virginia Tech) collected more than 250 tap water samples from homes in Flint. More than ten percent of the samples collected contained lead at levels over 25 ppb, well above the Lead and Copper Rule’s action level for lead of 15 ppb. See 40 C.F.R. § 141.80(c)(1). Some samples collected by the Virginia Tech researchers contained lead levels more than ten times greater than the lead action level.
105. In response to these findings, state officials asserted that Virginia Tech’s sampling showed far higher lead levels than sampling conducted by the Water System. Those officials questioned the reliability of Virginia Tech’s results, and insisted that the City’s water contained lead levels within allowable limits.
106. On September 24, 2015, a Flint pediatrician released the findings of a study showing that the proportion of Flint children with elevated blood lead levels had doubled since the Water System began
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using the Flint River as a drinking water source. State officials and Governor Snyder’s office attempted to discredit the pediatrician’s data, calling her work “unfortunate” in a time of “near-hysteria.” MDEQ continued to insist that Flint’s water was safe to drink.
107. The following day, the City of Flint issued a Lead Advisory suggesting that residents flush their taps for at least five minutes prior to drinking the water; use only cold water for drinking, cooking, and making baby formula; and install water filters certified for lead removal. The Lead Advisory did not tell residents that Flint’s water was unsafe to drink.
108. The Board of Commissioners in Genesee County, where Flint is located, issued a Public Health Advisory a few days later, also urging Flint residents to use filters certified to remove lead before drinking tap water, or to drink bottled water.
109. On September 30, 2015, Governor Snyder for the first time acknowledged that the City’s water supply “appears” to have increased lead levels.
110. The Genesee County Board of Commissioners declared a Public Health Emergency in Flint on October 1, 2015. It advised Flint residents not to drink water from the Water System unless it had been run through a
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filter certified to remove lead or tested to confirm the water does not contain elevated lead levels.
111. That same day, Plaintiffs submitted a petition to EPA asking it to issue an emergency order pursuant to its authority under the Safe Drinking Water Act. See 42 U.S.C. § 300i(a). Plaintiffs asked EPA to take immediate action to address the danger to Flint residents from lead in their water. EPA did not act.
112. In early October, tap water sampling conducted by MDEQ showed that three Flint schools had tap water with lead levels that exceeded the action level. Subsequent testing confirmed elevated lead levels in drinking water at seven of Flint’s schools.
113. In mid-October, following a request from the City Administrator, the Board decided that the City could amend its budget to allow the Water System to return to Detroit’s water supply. The same day, the Board also decided that the City Administrator could enter into agreements with Detroit and other local entities to execute the switch back to Detroit’s water.
114. On information and belief, the State Treasurer then approved the budget appropriation for Flint to return to Detroit’s water supply.
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115. On October 16, 2015, the Water System resumed using Detroit’s pretreated Lake Huron water as its drinking water.
116. After Flint’s return to Detroit water, the water in Flint did not become safe to drink. The Water System’s extended failure to treat the Flint River water with phosphates—combined with the highly corrosive nature of the water—had stripped the protective coating from the inside of the Water System’s pipes and service lines. As this coating had taken years to build up, the damage to the Water System’s infrastructure cannot be reversed right away, if ever, even though the System is again receiving water from Detroit pretreated with corrosion-inhibiting chemicals. This damage is allowing lead to continue to leach into Flint’s drinking water.
117. In early December 2015, the Water System began supplementing Detroit’s water treatment by adding more phosphates to further reduce the corrosivity of the water and control for the corrosion of lead pipes and solder.
118. Two weeks later, on December 14, 2015, Flint Mayor Karen Weaver declared a State of Emergency in Flint.
119. On January 5, 2016, Governor Snyder declared a State of Emergency in Genesee County. The next week, Governor Snyder activated
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the National Guard and requested help from the federal government to address the lead-contamination crisis.
120. Days later, President Obama declared a federal emergency in Flint, authorizing the Federal Emergency Management Agency to provide disaster relief.
121. On January 21, 2016, EPA issued an Emergency Administrative Order declaring that the lead contamination in Flint posed an imminent and substantial endangerment to human health, and directing the City, the State of Michigan, and MDEQ to take certain remedial measures. EPA’s action came nearly a year after it was first made aware of sampling results showing high levels of lead in Flint’s drinking water, and nearly four months after Plaintiffs submitted a petition to the agency asking it to act under its emergency authority. While the City has stated it will comply with EPA’s order, Michigan and MDEQ have challenged EPA’s legal authority to require some of the actions that EPA demands.
122. Despite awareness at the local, state, and federal levels of the lead-contamination crisis in Flint, tap water distributed from the Water System remains unsafe to drink.
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The Water System is failing to maintain optimal corrosion control treatment 123. The Water System is no longer “operat[ing] and maintain[ing] optimal corrosion control treatment” as required by the Lead and Copper Rule. 40 C.F.R. § 141.82(g). 124. Prior to the Water System’s switch to the Flint River as a drinking water source, Detroit treated water delivered to Flint’s customers to control the leaching of lead from pipes and solder. 125. In the early 1990s, Detroit conducted a multi-year study to determine the optimal approach to controlling lead in its system’s drinking water. The study evaluated water-quality data and information about the system’s pipe materials; identified and analyzed feasible treatment methods to control corrosion; and designed and pilot-tested the treatment alternatives. Detroit determined that its water should be treated with orthophosphate to optimize corrosion control, and, with MDEQ’s approval, began implementing that treatment. The Water System coordinated with Detroit to ensure the System’s compliance with the Lead and Copper Rule’s requirement to implement an optimal corrosion control treatment program. The Water System relied on Detroit to treat the water with
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orthophosphate before delivering the finished water to Flint. On information and belief, through Detroit’s orthophosphate treatment, the Water System was able to minimize the amount of lead leaching from pipes and solder.
126. By coordinating with Detroit, the Water System optimized its corrosion control treatment program as of January 1999. The Water System’s cooperation with Detroit did not exempt it from the Lead and Copper Rule’s requirements, including the requirement to maintain optimal corrosion control treatment. See 56 Fed. Reg. at 26,497-98.
127. From April 29, 2014, when the Water System began distributing Flint River water, through at least October 16, 2015, the Water System failed to maintain optimal corrosion control treatment because it did not treat the river water with corrosion-inhibiting chemicals or any other form of treatment to minimize the amount of lead leaching from the System’s pipes and solder.
128. Flint River water is highly corrosive. It is significantly more corrosive than water from Lake Huron. Because Flint River water is highly corrosive, the Water System’s use of the river water without treatment to control corrosion destroyed the protective coating that had built up inside
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the System’s pipes and solder. The absence of this protective coating caused dangerous amounts of lead to enter Flint’s drinking water.
129. Since October 16, 2015, when the Water System resumed distributing water from Detroit, the Water System has failed to maintain optimal corrosion control treatment because it has not minimized the concentration of lead at customers’ taps. 40 C.F.R. § 141.2.
130. The corrosivity of the river water damaged the Water System’s infrastructure, including by destroying the protective coating that had formed inside the System’s water pipes over many years. As a result of this damage, the Water System is not currently maintaining optimal corrosion control treatment. On information and belief, because of this damage to the Water System’s infrastructure, additional chemical treatment of Detroit’s pretreated water is necessary to implement an optimal corrosion control treatment program.
131. On information and belief, the Water System’s failure to treat the river water to control corrosion has caused and continues to cause dangerous levels of lead to enter customers’ tap water.
132. The Water System plans to switch water sources again in summer of 2016. The Water System will use Lake Huron water distributed
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through the KWA pipeline as its new water source. 133. After this switch, the Water System will be required to treat the
Lake Huron water to control for the corrosion of lead pipes and solder. 134. On information and belief, the Water System has not gathered
or analyzed background water chemistry information about the new KWA water source; has not evaluated corrosion control treatment options for the new KWA water source; has not conducted pilot-scale tests using lead pipes extracted from the System to determine the effectiveness of different corrosion control treatment alternatives; and has not procured the specialized equipment or developed the equipment operating skills necessary to maintain an optimal corrosion control treatment program.
135. On information and belief, the Water System’s failure to maintain optimal corrosion control treatment is likely to continue until the System switches to the new KWA water source, and is likely to continue or recur when the System switches to the new KWA water source.
The Water System is failing to comply with the Lead and Copper Rule’s monitoring requirements 136. The Water System is not monitoring for lead contamination in accordance with the Lead and Copper Rule. As a result, the Water System
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cannot promptly or reliably detect elevated lead levels in its drinking water.
Sampling site selection 137. Before a water system begins monitoring for lead at household taps, it must identify a pool of targeted sampling sites. 40 C.F.R. § 141.86(a)(1). The sampling pool must target homes that have a high risk of lead contamination. See id. § 141.86(a)(3)-(8). For water systems like Flint’s that regularly serve more than twenty-five people, this means that the sampling pool must, if possible, consist of single-family homes that are served by a lead service line and/or contain lead pipes or copper pipes with lead solder installed after 1982. Id. § 141.86(a)(3). 138. The pool must also be large enough to ensure that the water system can collect the required number of samples during each monitoring period. Id. § 141.86(a)(1). 139. During each monitoring period, a water system must collect the minimum required number of samples from homes that are part of the system’s sampling pool. Id. 140. A water system that contains lead service lines must also collect half of its samples from homes served by a lead service line, and half from
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homes that contain lead pipes or copper pipes with lead solder. Id. § 141.86(a)(8). If a water system cannot identify a sufficient number of homes served by lead service lines, then it must collect samples from all homes it has identified as being served by lead service lines. Id.
141. In addition to the tap water samples collected from the water system’s targeted sampling pool, the system may collect more samples from homes not included in its pool at a customer’s request. Those customer-requested samples do not count towards the system’s minimum number of required samples under the Rule. See id. § 141.86(a)(1), (c). Customer-requested samples generally must, however, be included when the water system calculates whether more than ten percent of its total collected samples exceed the lead action level of 15 ppb.
142. After the Water System began using the Flint River as a water source, it collected household tap water samples during two six-month monitoring periods, between July and December 2014 and between January and June 2015. The Water System serves a sufficient number of single-family homes with a lead service line or lead pipes that its sampling pool must consist entirely of such homes.
143. During its July–December 2014 and January–June 2015
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monitoring periods, the Water System requested that city employees volunteer to submit tap water samples, without regard to whether those employees lived in homes served by a lead service line or containing lead pipes.
144. At least six city employees submitted tap water samples during the City’s January–June 2015 monitoring period. On information and belief, the Water System included these samples as part of its monitoring for lead without verifying or even inquiring whether these samples came from homes that are served by a lead service line or contain lead pipes.
145. The City’s Utilities Administrator, Michael Glasgow, has stated that the Water System “throw[s] bottles out everywhere” to collect the required number of tap water samples, without regard to whether the homes from which samples are collected are served by a lead service line or contain lead pipes.
146. From July 2014 to the present, the Water System has not targeted and is not targeting homes at high risk of contamination when monitoring for lead.
147. Prior to the July–December 2014 monitoring period, the Water System did not identify a pool of targeted sampling sites large enough to
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ensure that it could collect the number of tap water samples required by the Lead and Copper Rule. The Water System also failed to identify a targeted pool prior to the beginning of the January-June 2015 monitoring period.
148. The Water System did not select all of the sampled homes from an existing sampling pool during either monitoring period.
149. The Water System does not have comprehensive, reliable information identifying the locations of its more than 15,000 lead service lines. On information and belief, the Water System has not consistently used and does not consistently use the records it may have concerning the locations of lead service lines to confirm that its samples are collected from homes with lead service lines.
150. On information and belief, for monitoring conducted from July 2014 through the present, the Water System has not ensured or verified and is not ensuring or verifying that half of its samples are collected from homes served by a lead service line, and that half of its samples are collected from homes that have lead pipes or copper pipes with lead solder. Because of its lack of knowledge of where its lead service lines are located, the Water System cannot reliably ensure that during each
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monitoring period, it collects at least half of its samples from homes served by a lead service line.
151. On information and belief, the Water System has yet to identify a pool of targeted tap water sampling sites that meet the high-risk criteria set forth in the Lead and Copper Rule and is large enough to ensure that the System can collect the required number of tap water samples during future monitoring periods.
152. On information and belief, the Water System will continue to monitor for lead in household tap water without using an existing, sampling pool of high-risk sites to select the homes from which it collects samples.
Sampling sites across monitoring periods 153. During each monitoring period, the Lead and Copper Rule requires water systems to collect samples from the same homes. 40 C.F.R. § 141.86(b)(4). If the water system cannot gain entry into a previously sampled home, or if a previously sampled home no longer fits the Rule’s high-risk criteria, then the system may collect a sample from another home in its sampling pool. Id. The home selected as a replacement sampling site must be located near the previously sampled home and meet the same
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high-risk criteria. Id. 154. For the January–June 2015 monitoring period, the Water
System collected tap water samples from only thirteen of the one hundred homes used during the previous six-month monitoring period. Each of these thirteen sampling sites had lead levels below the lead action level during the previous monitoring period.
155. On information and belief, during the January–June 2015 monitoring period, for any homes sampled during the previous monitoring period into which the Water System could no longer gain entry or that no longer met the Rule’s high-risk criteria, the System did not collect tap water samples from other homes selected from an existing sampling pool that were located nearby and met the same high-risk criteria.
156. On information and belief, the Water System is failing and/or will continue to fail to collect tap water samples at the same homes from which it collected samples during previous monitoring periods. The Water System is also failing and/or will continue to fail to replace homes in its sampling pool when necessary with homes that are nearby and meet the same high-risk criteria.
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The Water System is failing to comply with the Lead and Copper Rule’s reporting requirements 157. The Lead and Copper Rule requires water systems to report to state regulators all tap water sampling results for lead, including the location or “site” where each sample was collected. 40 C.F.R. § 141.90(a)(1)(i). For each sampling site, the water system must also report the basis on which the site was selected for the system’s sampling pool, including whether the site is served by a lead service line or contains lead pipes. Id.; see id. § 141.86(a)(3)(i)-(ii). 158. If a water system does not collect tap water samples from the same sites across monitoring periods, the water system must mark or “designate” each site that was not sampled during the previous monitoring period, and explain why the sampling site changed. Id. § 141.90(a)(1)(v). 159. These requirements ensure that the water system is sampling in high-risk homes, and prevent the system from purposely avoiding sampling sites that have yielded high lead results in past monitoring periods. 160. The Water System is not accurately reporting to MDEQ whether its sampling sites are served by lead services lines or contain lead
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pipes. For at least six tap water samples collected between July 1, 2014, and June 30, 2015, the Water System falsely reported to MDEQ that the sites were served by lead service lines, when in fact they were not.
161. On information and belief, the Water System does not have accurate information to identify whether its sampling sites are served by lead service lines or contain lead pipes. The Water System is likely to continue to fail to accurately report whether its sampling sites are served by lead service lines or contain lead pipes.
162. The Water System also is not reporting required information to MDEQ when the System fails to sample the same sites across monitoring periods.
163. For both the July–December 2014 and January–June 2015 monitoring periods, the Water System did not use the same sampling sites as in the previous monitoring periods. The Water System did not designate for MDEQ each new sampling site from which it collected a tap water sample during these monitoring periods. The Water System did not adequately explain—and in some cases, did not explain at all—the changes in its sampling sites from one monitoring period to the next.
164. The Water System is likely to continue its practice of not
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designating each new sampling site from which it collects a tap water sample. The Water System is also likely to continue its practice of failing to explain changes in its sampling sites from previous monitoring periods.
The Water System is failing to comply with the Lead and Copper Rule’s notification requirements 165. The Lead and Copper Rule requires water systems to notify the individuals residing at each sampling site of their tap water sampling results for lead. 40 C.F.R. § 141.85(d)(1). A water system must provide this notice “no later than 30 days after the system learns of the tap monitoring results.” Id. § 141.85(d)(2). 166. On information and belief, for monitoring conducted from July 1, 2014, through June 30, 2015, the Water System failed to notify individuals residing at each sampling site of their tap water sampling results for lead within thirty days after the System learned of the results. 167. On information and belief, for monitoring conducted from July 1, 2015, through the present, the Water System is continuing to fail to notify individuals residing at each sampling site of their tap water sampling results for lead within thirty days after the System learns of the results.
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FIRST CLAIM FOR RELIEF (Violations of the Safe Drinking Water Act’s requirement to operate and
maintain optimal corrosion control treatment, 40 C.F.R. §§ 141.81-.82) 168. Plaintiffs incorporate by reference all of the preceding
paragraphs. 169. Since April 2014, Defendants have violated and continue to
violate the Safe Drinking Water Act and its implementing regulations by failing to operate and maintain optimal corrosion control treatment. 40 C.F.R. § 141.82(g).
SECOND CLAIM FOR RELIEF (Violations of the Safe Drinking Water Act’s requirements for
monitoring tap water for lead, 40 C.F.R. § 141.86) 170. Plaintiffs incorporate by reference all of the preceding paragraphs. 171. Since April 2014, Defendants have violated and continue to violate the Safe Drinking Water Act and its implementing regulations by failing to comply with the Act’s requirements to monitor household tap water for lead, including:
a. the requirement to identify a pool of targeted sampling sites prior to monitoring, 40 C.F.R. § 141.86(a)(1);
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b. the requirement to select homes for sampling from an existing sampling pool, id.;
c. during each monitoring period, the requirement to collect half of the samples from homes served by a lead service line and half of the samples from homes containing lead pipes or copper pipes with lead solder, id. § 141.86(a)(8); and
d. the requirement to collect samples from the same homes or replacement homes that meet the Rule’s criteria across monitoring periods, id. § 141.86(b)(4). THIRD CLAIM FOR RELIEF
(Violations of the Safe Drinking Water Act’s reporting requirements, 40 C.F.R. § 141.90)
172. Plaintiffs incorporate by reference all of the preceding paragraphs.
173. Since April 2014, Defendants have violated and continue to violate the Safe Drinking Water Act and its implementing regulations by failing to comply with the reporting requirements for monitoring household tap water for lead, including:
a. the requirement to report the results of all tap water samples, including the location of each sampled home and the high-risk
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criteria under which the home was chosen for the water system’s sampling pool, 40 C.F.R. § 141.90(a)(1)(i); and b. the requirement to designate any home that was not sampled during the previous monitoring periods and explain why the homes sampled have changed, id. § 141.90(a)(1)(v).
FOURTH CLAIM FOR RELIEF (Violations of the Safe Drinking Water Act’s notification
requirements, 40 C.F.R. § 141.85) 174. Plaintiffs incorporate by reference all of the preceding paragraphs. 175. Since April 2014, Defendants have violated and continue to violate the Safe Drinking Water Act and its implementing regulations by failing to comply with the requirement that water systems notify customers of the individual results of tap water samples collected and tested for lead within thirty days after the water system receives the results. 40 C.F.R. § 141.85(d)(1), (d)(2).
REQUEST FOR RELIEF Plaintiffs respectfully request that this Court enter judgment against Defendants as follows: A. Declaring that all Defendants are in violation of their
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obligations under the Safe Drinking Water Act and its implementing regulations;
B. Enjoining all Defendants from ongoing and future violations of the Safe Drinking Water Act and its implementing regulations, including but not limited to the treatment, monitoring, reporting, and notification requirements of the Lead and Copper Rule;
C. Ordering that Defendants take all such actions as may be necessary, and all such actions as the Court may deem appropriate, to remedy these violations, comply with the Safe Drinking Water Act and its implementing regulations, and mitigate the harm caused by Defendants’ violations of the Lead and Copper Rule’s treatment, monitoring, reporting, and notification requirements.
D. Ordering that Defendants promptly complete full replacement of all lead service lines in the Water System at no cost to customers of the Water System, including replacement of those portions of the lead service lines that are privately owned, to the extent the Water System is able to obtain permission from the owner of the line after notifying the owner and offering to replace the owner’s portion of the line at the Water System’s expense;
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E. Granting appropriate equitable relief to mitigate the health and medical risks and harm resulting from Defendants’ violations;
F. Awarding Plaintiffs their reasonable costs and attorneys’ fees; and
G. Granting such other and further relief as the Court deems just and proper.

Dated: January 27, 2016

Respectfully submitted,

/s/Dimple Chaudhary___________ Dimple Chaudhary Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 289-2385 dchaudhary@nrdc.org
Sarah C. Tallman Natural Resources Defense Council 20 North Wacker Drive, Suite 1600 Chicago, IL 60606 (312) 651-7918 stallman@nrdc.org

/s/Michael J. Steinberg__________ Michael J. Steinberg (P43085) Brooke A. Tucker (P79136) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org btucker@aclumich.org
Counsel for American Civil Liberties Union of Michigan

Counsel for Concerned Pastors for Social Action, Melissa Mays, and Natural Resources Defense Council, Inc.
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Of counsel: Anjali Waikar Evan Feinauer Natural Resources Defense Council 20 North Wacker Drive, Suite 1600 Chicago, IL 60606 (312) 651-7938 awaikar@nrdc.org efeinauer@nrdc.org
Counsel for Concerned Pastors for Social Action, Melissa Mays, and Natural Resources Defense Council, Inc.
Glenn M. Simmington (P33626) Law Office of Glenn M. Simmington, PLLC Mott Foundation Building 503 South Saginaw Street, Suite 1000 Flint, MI 48502 (810) 600-4211 gsimmington@gmail.com
Counsel for Plaintiff Melissa Mays
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

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

Plaintiffs, v.

Case Number 16-10277 Honorable David M. Lawson

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 DENYING DEFENDANTS’ MOTIONS TO DISMISS

Three organizations advocating on behalf of the citizens of Flint, Michigan, and a Flint

resident, have turned to the federal courts for relief from the hardship visited on the population

caused by the mishandling of the City’s water treatment and distribution system. The targets of their

lawsuit are 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).

Both defendants have filed motions to dismiss, arguing, among other things, that the federal district

court should not, or cannot, get involved, and the plaintiffs should be content with the remedial

course charted by the Environmental Protection Agency. The Court disagrees. For reasons

explained below, the Court believes that it should not defer to the EPA’s “primary jurisdiction” to

address the plaintiffs’ complaints, the lawsuit is not a disguised appeal of the EPA’s January 2016

order, the relief the plaintiffs seek is, in the main, prospective and the Eleventh Amendment does

not bar this lawsuit against the State defendants, the individual members of the RTAB are proper defendants under the Safe Drinking Water Act (SDWA) because they exert control over the financial decisions affecting the operation of the Flint water system, and the complaint states viable claims for relief. The motions to dismiss will be denied.
I. According to the allegations in the complaint, the water in Flint, Michigan is not safe to drink and has not been safe to drink since April 2014. The plaintiffs allege that in November 2011, in response to Flint’s budget deficit and mounting debt, Governor Rick Snyder declared a financial emergency in the city and appointed an emergency manager to take over and run the city’s operations. In order to save the city money, the plaintiffs contend, the emergency manager switched the city’s drinking water source from Lake Huron to the Flint River, a water source known to be contaminated by nearby industries. The city and state officials allegedly failed to follow the federal requirements for treating and testing drinking water for lead under the SDWA. The plaintiffs maintain that the caustic Flint River water corroded the city’s aging metal pipes and destroyed the protective coating that had formed over many years, causing lead to leach into the drinking water. The plaintiffs maintain that even though the defendants have stopped using the Flint River as the city’s drinking water source in October 2015, the city’s water remains unsafe to drink, wash with, and bathe in. The plaintiffs assert that the residents of Flint have been exposed and are still being exposed to high levels of lead in their water, and in the past two years, the percentage of Flint children with elevated levels of lead in their blood has doubled and nearly tripled in some areas. The complaint sets forth the plaintiffs’ view of the political history that emerged as a result of Flint’s financial travails. In November 2011, the City of Flint was put into a state-controlled
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receivership. Local government officials were stripped of authority in favor of state-appointed personnel. Between November 2011 and April 2015, Flint had four successive emergency managers, who were vested with broad powers to address the city’s financial emergency, including authority over the city budget. In early 2015, the emergency manager gave defendant Natasha Henderson full authority to direct and supervise the day-to-day operations of the city, including authority to direct the head of the Department of Public Works and manage the operations of the water system. Flint’s Utilities Department is responsible for the supply and maintenance of water services, which reports to the Department of Works. The plaintiffs maintain that defendant Henderson has directed the operation of the water system, managed the purchase of water meters, plumbing supplies, and chemicals to treat Flint River water at the treatment plant. She also allegedly decided that Flint could enter into a contract with the consultants to provide design, procurement, and construction services to the Flint water treatment plant.
On April 28, 2015, Governor Snyder removed the emergency manager and replaced him with an appointed Receivership Transition Advisory Board to continue to manage the city’s affairs along with the city officials for the duration of the receivership. The plaintiffs contend that since its inception, the RTAB has made a number of decisions directing the operation of the Flint water system. In August 2015, the RTAB allegedly decided that Flint could enter into a multi-year environmental monitoring services contract with a testing laboratory and decided to allow Flint to purchase chemicals to be used to treat water at the water treatment plant. It further decided whether Flint could purchase water distribution pipe repair parts for use in maintaining the water system.
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The plaintiffs allege that the RTAB is the primary, but not exclusive, state entity that managed Flint’s operations during the receivership. They also allege that the State Treasurer, defendant Nick A. Khouri, manages aspects of the city’s operations. For example, the Mayor and the City Council cannot amend the budget that was adopted by the emergency manager without approval of both the RTAB and the State Treasurer. The plaintiffs further maintain that the State Treasurer exerts control over the Flint water system by having the final authority to decide whether the water system can make large operational changes that involve budget amendments. In early 2014, the State Treasurer decided whether Flint could expend more than $3 million to upgrade its water treatment plant to allow Flint to use the Flint River as its primary drinking water source. And, the plaintiffs allege, the State Treasurer exercised final decision-making power over the water system’s choices about where to get its drinking water. The plaintiffs allege that the Mayor and the City Council were stripped of all authority except as specifically authorized in writing by the emergency manager prior to the elimination of the position last spring.
The plaintiffs allege that in March 2013, Flint’s City Council voted to join the Karegnondi Water Authority (KWA), a newly formed water supply system that would have a new operational pipeline available in June 2016. The City Council’s vote to join the KWA could only be authorized by the emergency manager and State Treasurer. The plaintiffs allege that the State Treasurer rejected Detroit’s final offer to continue to receive water from Detroit while the KWA pipeline was completed.
The problem, the plaintiffs contend, was that the City of Flint had not treated its own water on a regular basis for nearly fifty years. And it had never undertaken the analysis required by the SDWA to identify and understand how a water system optimizes corrosion control treatment for
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drinking water. The plaintiffs allege that in 2011, outside consultants for the city analyzed whether the Flint River could be used as the city’s permanent primary source of drinking water. The consultants allegedly concluded that it would require about $50 million in upgrades to the equipment and systems to assure reliable and safe drinking water to customers. Nonetheless, the plaintiffs allege, the water system was not upgraded with all of the recommended improvements in advance of distributing the Flint River water to customers’ homes in 2014. And the water was distributed without any treatment to reduce its corrosivity and to minimize the leaching of lead from the pipes and solder into the drinking water.
The plaintiffs allege that Flint residents began raising concerns about the safety of their drinking water nearly two years ago. However, government officials dismissed their concerns and insisted that the water was safe to drink. The state officials allegedly disregarded researchers’ findings that the water contained dangerously high levels of lead. The plaintiffs allege that the damage done to the city pipes from the Flint River water means that lead will continue to contaminate Flint’s drinking water unabated. The ongoing contamination, the plaintiffs allege, poses an ongoing health risk to city residents and in particular young children, who are the most vulnerable to the effects of lead.
On October 1, 2015, the plaintiffs petitioned the United States Environmental Protection Agency (EPA) to issue an emergency order in response to Flint’s water crisis as authorized by the SDWA. On January 21, 2016, the EPA issued an Emergency Administrative Order (EPA Order) directing Flint and the State of Michigan to take certain steps to begin to address the crisis, including providing certain information to the public on a website and to the EPA, planning for optimization of water treatment to control corrosion, and retaining personnel qualified to ensure compliance with
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the SDWA’s requirements. The purpose of the EPA Order was to “make sure” that the defendants take “actions to protect public health . . . immediately.”
The plaintiffs filed the present action on January 27, 2016 alleging violations of certain federal regulations enacted under the Safe Drinking Water Act, 42 U.S.C. §§ 300f, et seq. They bring four separate claims: (1) Violations of the SDWA’s requirement to operate and maintain optimal corrosion control treatment, 40 C.F.R. §§ 141.81 .82; (2) violations of the SDWA’s requirements for monitoring tap water for lead, 40 C.F.R. § 141.86; (3) violations of the SDWA’s reporting requirements, 40 C.F.R. § 141.90; and (4) violations of the SDWA’s notification requirements, 40 C.F.R. § 141.85. The plaintiffs are seeking a judgment declaring that all of the defendants are in violation of their obligations under the SDWA and its implementing regulations. They also ask to enjoin the defendants from ongoing and future violations of the SDWA and its implementing regulations, ordering the defendants to take all such actions to remedy the violations of the SDWA, and ordering a complete replacement of all lead service lines in the water system at no cost to customers of the water system. The plaintiffs also ask for preliminary injunctive relief to address the immediate concerns of Flint residents’ need to access safe water for drinking and household needs.
Upon filing, the case was assigned to another judge in this district, who disqualified himself at the defendants’ request on April 26, 2016. The defendants responded to the complaint with motions to dismiss under Federal Rule of Civil Procedure 12(b)(1) & (6). This Court heard oral arguments on those motions on May 13, 2016.
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II. A. The Flint defendants argue in their motion to dismiss that this Court lacks subject matter jurisdiction because the plaintiffs in reality are seeking review of a final order issued by the EPA, which must be taken to a circuit court, not a district court. They invoke Federal Rule of Civil Procedure 12(b)(1), which “provides for the dismissal of an action for lack of subject matter jurisdiction.” Cartwright v. Garner, 751 F.3d 752, 759 (6th Cir. 2014). This challenge amounts to a “factual attack” on the Court’s jurisdiction, because a determination requires consideration of evidence not included in the complaint. Ibid. That evidence here consists of the EPA’s emergency administrative order dated January 21, 2016. “In the case of a factual attack, a court has broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings, and has the power to weigh the evidence and determine the effect of that evidence on the court’s authority to hear the case.” Id. at 759-60. The “[p]laintiff bears the burden of establishing that subject matter jurisdiction exists.” Id. at 760 (citing DLX, Inc. v. Commonwealth of Kentucky, 381 F.3d 511, 516 (6th Cir. 2004)). On January 21, 2016, the EPA’s Office of Enforcement and Compliance Assurance issued an emergency administrative order, in which it found that the “Respondents” the City of Flint, the Michigan Department of Environmental Quality, and the State of Michigan had operated the Flint Water System in such a way as to introduce contaminants into the system that “present[ed] an imminent and substantial endangerment to the health of persons” who had a right to assume that the water was safe for human consumption. EPA Emergency Admin. Order ¶¶ 45, 33 (Jan. 21, 2016). The EPA then ordered the Respondents to engage in certain reporting and information disclosure
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requirements, respond to the Flint Task Force recommendations, and comply with various water treatment obligations. The EPA also directed the Respondents to submit a plan to address corrosion control and water quality parameters, and it prohibited the transition to a new water source unless certain conditions had been fulfilled. The parties bound by the EPA’s order are the “Respondents and their officers, employees, agents, successors and assigns.” Id. ¶ 65. The order was “a final agency action by EPA.” Id. ¶ 74.
The Flint defendants argue that the plaintiffs’ complaint is an implicit request for judicial review of the EPA Order, and therefore this Court lacks subject matter jurisdiction, because under the SDWA a petition for judicial review of a final action by the Administrator of the EPA can only be reviewed by the circuit court in which the petitioner resides. They reason that granting any of the relief requested by the plaintiffs would necessarily differ from that of the EPA and would be substituting the Court’s judgment for that of the EPA in several areas. For one, they say that the EPA did not find that the defendants violated the various provisions of the Lead and Copper Rule, 40 C.F.R. § 141.80, et seq., as the plaintiffs contend. They also point out that the plaintiffs seek relief that exceeds the scope of that ordered by the EPA. And the Flint defendants observe that the injunctive relief that the plaintiffs seek including replacement of all of the lead pipe service lines (privately owned lines included), and equitable relief to mitigate the health and medical risks from the defendants’ violations goes beyond what the EPA determined was necessary to protect the health of Flint residents. The Flint defendants argue that granting these requests amounts to judicial review of the EPA Order.
Congress has allocated the responsibility for reviewing EPA actions under the SDWA among the various circuit and district courts. A final EPA action under that Act “may be filed in the circuit
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in which the petitioner resides or transacts business which is directly affected by the action.” 42 U.S.C. § 300j-7(a)(2). That statute, however, does not directly answer the question of this Court’s subject matter jurisdiction.
Subject matter jurisdiction refers to “the courts’ statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (emphasis in original). Federal courts have “the authority to decide cases that the Constitution and Congress have empowered them to resolve.” Ohio ex rel. Skaggs v. Brunner, 549 F.3d 468, 474 (6th Cir. 2008). Congress has empowered district courts to hear civil actions against a city or state government by citizens brought under the SDWA, subject to two conditions. 42 U.S.C. § 300j-8(a). First, the plaintiffs may not file a suit 60 days before giving notice of the violation to the Administrator of the EPA, the alleged violator, and the state in which the violation is occurring. 42 U.S.C. § 300j-8(b)(1). Second, a civil action may not commence “if the Administrator, the Attorney General, or the State has commenced and is diligently prosecuting a civil action in a court of the United States to require compliance with such requirement.” 42 U.S.C. § 300j-8(b)(2) (emphasis added).
The plaintiffs filed the present action more than 60 days after giving notice of the alleged violations to the relevant parties and no civil actions have commenced by the Administrator of the EPA, the Attorney General, or the State of Michigan against the Flint defendants. The plaintiffs say that Jones v. City of Lakeland, Tennessee, 224 F.3d 518 (6th Cir. 2000) (en banc), supports their position. In that case, the court held that a provision of the Clean Water Act, which prevented a private action when the EPA or a state agency was “diligently prosecuting” an enforcement action, did not bar the plaintiffs’ lawsuit against a local city for polluting a creek. The state agency had issued a number of compliance orders. But the court held that the preclusion language barred a
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citizen-suit only if the agency was “diligently prosecuting an enforcement action in a court of the United States or of a State.” Id. at 522 (emphasis added). Because the state administrative agency was prosecuting the action on its own authority and not in a federal or state court, the citizen suit was allowed to proceed.
The Flint defendants acknowledge that the SDWA, 42 U.S.C. § 300j-8(a)(1), authorizes citizen-suits. Nonetheless, they insist that citizen-suits are prohibited by 42 U.S.C. § 300j-8(e) when the suit amounts to judicial review. In fact, that statute explicitly prohibits judicial review of agency actions “except as provided in section 300j-7 of this title.” 42 U.S.C. § 300j-8(e). They argue that Jones is distinguishable because the Clean Water Act does not contain a blanket prohibition on using citizen suits to judicially review EPA orders like the SDWA’s section 300j-8(e).
That distinction is not persuasive. Although the Clean Water Act does not contain an express provision for judicial review of EPA compliance orders, compliance orders issued by the EPA are reviewable in district courts under the Administrative Procedure Act, 5 U.S.C. § 500 et seq. Sackett v. E.P.A., 132 S. Ct. 1367, 1374 (2012) (The Administrative Procedure Act “creates a presumption favoring judicial review of administrative action.”); Nat’l Mining Ass’n v. Sec’y of Labor, 763 F.3d 627, 632 (6th Cir. 2014) (“[T]he normal default rule is that persons seeking review of agency action go first to district court rather than to a court of appeals.”) (internal marks and citations omitted). Therefore, the same prohibition would seem to apply under the Clean Water Act, and the lack of an express provision in the act is not informative here. Jones supports the plaintiffs’ position. However, as the Flint defendants note, it does not fully address their argument that the Court lacks subject matter jurisdiction because this case is an impermissible judicial review of the EPA Order under 42 U.S.C. § 300j-8(e).
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The defendants point out that the Sixth Circuit recently provided guidance when an action constitutes judicial review in Mokdad v. Lynch, 804 F.3d 807, 813 (6th Cir. 2015), a case that does not support their position. However, the defendants do not examine Mokdad; rather, they rely on its reference to City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320 (1958), which the court of appeals characterized as “[t]he leading Supreme Court case discussing the scope of exclusivejurisdiction provisions.” Mokdad, 804 F.3d at 813. In City of Tacoma, the city intended to construct a power project on a river where the State of Washington owned a fish hatchery. The power project could not be built without condemnation of the state’s hatchery, because the proposed dams would flood the hatchery. Tacoma sought and received a license to proceed with their power project by the Federal Power Commission, under the Federal Power Act, over the vigorous objections of the state. The Ninth Circuit affirmed the issuance of the license and the state appealed to the Supreme Court. While that appeal was pending, Tacoma proceeded with its plans for the power project and filed an action in state court that would declare valid an issuance of bonds to finance the project. The state opposed the action raising the same issues it had in the previous licensing proceedings. The state court case was appealed to the state supreme court twice and ultimately resulted in an injunction preventing Tacoma from proceeding with the project. But the Supreme Court reversed the state supreme court, holding that the exclusive review provision of the Federal Power Act “necessarily precluded de novo litigation between the parties of all issues inhering in the controversy, and all other modes of judicial review.” 357 U.S. at 336.
City of Tacoma is distinguishable on a number of bases. For one, the plaintiffs are not a party to an action between the EPA and the City of Flint. Nor are the plaintiffs identified as “Respondents” in the EPA’s emergency order. Moreover, the plaintiffs are not subject to the EPA
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Order and are not asking for relief from the EPA Order. The plaintiffs are not seeking to enjoin the EPA Order either explicitly or implicitly. See F.C.C. v. ITT World Commc’ns, Inc., 466 U.S. 463, 468 (1984) (holding that a party “may not evade [statutory exclusive-jurisdiction] provisions by requesting the District Court to enjoin action that is the outcome of the agency’s order). Rather they are asserting their own rights under the SDWA. As the Mokdad court observed, “[l]ater decisions of the Supreme Court have reiterated that exclusive-jurisdiction provisions bar litigants from ‘requesting the District Court to enjoin action that is the outcome of the agency’s order,’ but not claims that are ‘wholly collateral to a statute’s review provisions.’” Mokdad, 804 F.3d at 813 (quoting ITT World Commc’ns, 466 U.S. at 468, and Thunder Basin Coal Co. V. Reich, 510 U.S. 200, 212 (1994)).
The Sixth Circuit used the concept of “inescapable intertwinement” as an aid in determining whether a lawsuit was barred by an exclusive jurisdiction provision in a statute governing appeals of administrative agency orders. Citing precedent from other circuits, the court stated that “‘[a] claim is inescapably intertwined [with an agency order] if it alleges that the plaintiff was injured by such an order and that the court of appeals has authority to hear the claim on direct review of the agency order.’” Ibid. (quoting Merritt v. Shuttle, Inc., 245 F.3d 182, 187 (2d Cir. 2001)) (alteration in original). Here, the plaintiffs do not allege that their injury stems from the EPA’s emergency order. In fact, the plaintiffs likely would endorse many of its findings. And even if the relief requested by the plaintiffs may overlap or even be inconsistent with the EPA Order, the SDWA provides for intervention by the EPA in a citizen-suit or by a citizen in a suit brought by the EPA. 42 U.S.C.A. § 300j-8(b)(1)(B), (c).
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The plaintiffs’ present suit does not amount to an appeal of a final determination by the EPA. The relief they seek may parallel the EPA’s directives to the Flint and Michigan respondents, and may augment those orders. And their action is wholly collateral to the SDWA’s review provisions. The Court has subject matter jurisdiction over this suit under 42 U.S.C. § 300j-8(a), unaffected by section 300j-7 or section 300j-8(e).
B. The state defendants make a related argument: that the Court should abstain from adjudicating the complaint and defer to the EPA under the doctrine of primary jurisdiction. Under that doctrine, a court may stay or dismiss a proceeding if it finds that the matter lay within the primary jurisdiction of an administrative agency to allow the parties the reasonable opportunity to seek an administrative ruling. United States v. Haun, 124 F.3d 745, 749 (6th Cir. 1997); see Alltel Tennessee, Inc. v. Tennessee Pub. Serv. Comm’n, 913 F.2d 305, 307 (6th Cir. 1990). “The doctrine of primary jurisdiction arises when a claim is properly cognizable in court but contains some issue within the special competence of an administrative agency.” Id. at 749 50. The state defendants argue that this case involves complex factual and scientific questions that are outside the Court’s conventional experience, and the Court may be called upon to determine the most appropriate manner in which to abate any violations of the SDWA requiring the resolution of complicated environmental, biological, logistical, municipal, financial, and practical issues of great significance and impact. They also note that EPA proceedings have begun and the agency has issued a compliance order. And the state defendants argue that primary jurisdiction is often invoked when a plaintiff is seeking injunctive relief, because there is the greatest likelihood that a court’s order will interfere with an administrative agency’s proceedings.
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An analysis of abstention requests must begin with the observation that district courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given them.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976). The primary jurisdiction doctrine is recognized as a means “to obtain the benefit of the expertise and experience of the administrative agencies and the desirable uniformity which occurs when a specialized agency decides certain administrative questions.” Alltel Tennessee,, 913 F.2d at 309 (citing In re Long Distance Telecommunications Litigation, 831 F.2d 627, 630 (6th Cir. 1987). But the court should “defer[] to an administrative agency only when the reasons for the existence of the doctrine are present.” Ibid. (citing United States v. Western Pacific, 352 U.S. 59, 64 (1956)). The Supreme Court has observed that “[n]o fixed formula exists for applying the doctrine of primary jurisdiction.” United States v. Western Pac. R.R. Co., 352 U.S. 59, 64 (1956)).
The state defendants argue that this case involves complex factual and scientific questions that are outside the Court’s conventional experience, but that does not appear to be the case. The plaintiffs are seeking a declaratory judgment that the defendants violated the SDWA. That determination does not require reviewing environmental impact reports or considering the content of lead in the drinking water. It merely requires determining whether the defendants complied with the statute, which is well within the Court’s expertise. Furthermore, the injunctive relief in this case focuses on obtaining clean drinking water for the residents of Flint. Whether such relief requires the defendants to supply water filters to every Flint resident or replace all of the lead service lines, the expertise required is no more than inquiring into whether the lead levels in the water are above or below the prescribed amount, and what remedial measures may suffice to cause compliance. It may be that the lead service lines can be made safe again through proper water treatment and all that
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is needed is temporary injunctive relief to allow time for that to occur. “A federal court may not abdicate its adjudicative duty simply because an action sounds an administrative tone.” Haun, 124 F.3d at 752.
The state defendants rely on Harding-Wright v. District of Columbia Water and Sewer Authority, 04-00558 (D.C. 2004). That case is similar in many ways to this one. In Harding-Wright, the District of Columbia Water and Sewer Authority (WASA) made a change in its water treatment that resulted in increased levels of lead in the drinking water. Harding-Wright, Ex. 1 at p. 5. To help alleviate the harm, WASA and the EPA worked on a series of interim measures to ensure the safety of drinking water, such as making an interim water supply available and making certified water filters available to the 23,000 homes that had been affected by the high levels of lead in the drinking water. Id. at 10. The Harding-Wright court granted in part the defendant’s motion to dismiss because it found that fashioning an interim remediation plan independent of what the EPA already required was better left to the expertise of the EPA. Id. at 20. Furthermore, the plaintiffs were asking the court to order the defendants to distribute water filters to a greater number of residents than had already been required under a consent administrative order, and would therefore result in inconsistent judgments. Id. at 22.
Harding-Wright is informative; however, the EPA had already entered an Administrative Order for Compliance on Consent that mandated replacement of some of the lead service lines and the provision of water filters to 23,000 affected homes. The court deferred to the EPA under the primary jurisdiction doctrine in a case where the EPA had taken more substantial steps than have been taken thus far in Flint. It appears that much more remains to be done here, and the plaintiffs are entitled to seek other avenues of relief.
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The state defendants also argue that EPA proceedings have begun and they have issued a compliance order, which would weigh in favor of staying the current proceeding. The plaintiffs respond that there is no decision pending with the EPA that would be relevant to this case. The plaintiffs have the better argument. In Haun, the Sixth Circuit explained that one of the reasons to stay a proceeding under the primary jurisdiction doctrine is to allow the parties the opportunity to seek an administrative ruling. Haun, 124 F.3d at 749. The EPA issued its compliance order on January 21, 2016. The SDWA allows for and even contemplates concurrent actions. 42 U.S.C.A. § 300j-8(b)(1)(B), (c). As the plaintiffs point out, there are no questions before the EPA that must be answered before the plaintiffs’ claims can be adjudicated by this Court.
Finally, the state defendants argue that primary jurisdiction is often invoked when a plaintiff is seeking injunctive relief, because there is the greatest likelihood that a court’s order will interfere with an administrative agency’s proceedings. See B.H. v. Gold Fields Mining Corp., 506 F. Supp. 2d 792, 798 (N.D. Okla. 2007). In B.H. the EPA ordered remediation of a 40-square-mile area where lead contamination had been found. The plaintiffs were seeking injunctive relief that the court found would likely conflict with the EPA’s remediation plan. The B.H. court stayed the action pending the resolution of the EPA’s remediation plan under the primary jurisdiction doctrine because the cleanup of environmental hazards fell squarely within the EPA’s expertise, and injunctive relief would have interfered with the remediation effort. But here, the plaintiffs are not seeking relief that would likely interfere with the EPA’s compliance order. Instead, the relief the plaintiffs are seeking would be consistent with the order. The danger of creating inconsistent obligations for the defendants is relatively low in this case, because the EPA and the plaintiffs are seeking the same result: safe drinking water for the residents of Flint.
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This does not appear to be a case that will require intricate fact finding or the need for special administrative expertise. Nor does there appear to be an administrative program that may be upset by the Court’s decisions. The plaintiffs are seeking to enforce their rights under the SDWA. The relief sought is both similar and different than what has been ordered in the EPA Order, but not conflicting. The state defendants have not shown how such relief would be inconsistent with the EPA Order or would interfere with it in any way. Because federal judges “have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given,” United States v. Haun, 124 F.3d 745, 752 (6th Cir. 1997) (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821)), abstaining under the primary jurisdiction doctrine would be imprudent here.
III. The Flint defendants contend that the complaint fails to state a viable claim, because the plaintiffs ask for retrospective relief, which is unavailable under the SDWA. The state defendants make a similar argument, contending that because the plaintiffs are seeking retrospective relief, their claims are barred by the Eleventh Amendment. The state defendants also contend that the complaint fails to state a claim for which relief can be granted against the individual members of the Flint Receivership Transition Advisory Board in their official capacities, because the Board is a nonjuridical entity. And they also contend that the claims against the board members and the state treasurer must fail because none of those individuals has the requisite control over the Flint water system. These arguments are based on Federal Rule of Civil Procedure 12(b)(6). “The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief if all the facts and allegations in the complaint are taken as true.” Rippy ex rel. Rippy v.
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Hattaway, 270 F.3d 416, 419 (6th Cir. 2001) (citing Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993)). Under Rule 12(b)(6), the Court views the complaint in the light most favorable to the plaintiff, the allegations of fact are accepted as true, and all reasonable inferences are drawn in favor of the plaintiff. Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008). To survive a motion to dismiss under that rule, the complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility requires showing more than the ‘sheer possibility’ of relief but less than a ‘probab[le]’ entitlement to relief. Ashcroft v. Iqbal, [556 U.S. 662, 678] (2009).” Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 280 (6th Cir. 2010). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).
Under the new regime ushered in by Twombly and Iqbal, pleaded facts must be accepted by the court, but conclusions may not be accepted unless they are plausibly supported by the pleaded facts. “[B]are assertions,” such as those that “amount to nothing more than a ‘formulaic recitation of the elements’” of a claim, can provide context to the factual allegations, but they are insufficient to state a claim for relief and must be disregarded. Iqbal, 556 U.S. at 681 (quoting Twombly, 550 U.S. at 555). However, as long as a court can “‘draw the reasonable inference that the defendant is liable for the misconduct alleged,’ a plaintiff’s claims must survive a motion to dismiss.” Fabian, 628 F.3d at 281 (quoting Iqbal, 556 U.S. at 678).
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A. All the defendants characterize the relief sought by the plaintiffs as “retrospective.” They insist that the replacement of lead service lines and mitigation of health and medical risks are measures to address past violations, and therefore the relief requested is retrospective. The plaintiffs recognize that retrospective relief is not available under the SDWA. But they characterize the relief they seek as prospective rather than retrospective. They argue that replacement of lead service lines and mitigating the health and medical risks amount to prospective relief because those measures address the ongoing violations by the defendants. And they contend that 42 U.S.C. § 300j-8(a) specifically authorizes district courts to enforce the SDWA’s various monitoring, reporting, public information, and treatment provisions. “The purpose of the [Safe Drinking Water Act] is to assure that water supply systems serving the public meet minimum national standards for protection of public health.” H.R. Rep. No. 93-1185, at 6454 (1974). 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). The Sixth Circuit has not interpreted this provision, but the Supreme Court interpreted the same “in violation of” language in the Clean Water Act as requiring a citizen-plaintiff to “allege a state of either continuous or intermittent violation that is, a reasonable likelihood that a past polluter will continue to pollute in the future.” Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57 (1987) (noting parallel language in Clean Air Act, 42 U.S.C. § 7604; Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6972 (1982 ed. and Supp. III); Toxic Substances Control Act, 15 U.S.C. § 2619 (1982 ed. and Supp. IV)); see United States v. Stauffer Chem. Co., 684 F.2d 1174,
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1188 (6th Cir. 1982) (finding that where possible, similar statutory language should be given similar construction). The plaintiffs have done so here.
Congress has empowered “[t]he United States district courts . . . to enforce in an action brought under this subsection any requirement prescribed by or under” the SDWA. 42 U.S.C. § 300j(a). Although the Sixth Circuit has not interpreted the scope of this provision, other circuits however have interpreted analogous language in the Clean Water Act to mean that “[t]he authority to ‘enforce’ an existing requirement is more than the authority to declare that the requirement exists and repeat that it must be followed.” Nat. Res. Def. Council v. Sw. Marine, Inc., 236 F.3d 985, 1000 (9th Cir. 2000). Rather, as “long as the district court’s equitable measures are reasonably calculated to ‘remedy an established wrong,’ they are not an abuse of discretion.” Ibid. (quoting Alaska Ctr. for Env’t v. Browner, 20 F.3d 981, 986 (9th Cir. 1994)).
The defendants do not fairly characterize the harm alleged by the plaintiffs. It is not, as the defendants would read it, the damage to the lead service pipes. Instead, the harm is the continued leaching of lead into the drinking water. To remedy that harm, replacement of all lead service pipes may be required. Indeed, the regulations contemplate such relief. The SDWA requires “water systems” to comply with regulations designed to control lead contamination in drinking water, known collectively as the Lead and Copper Rule. 40 C.F.R. §§ 141.80 .91. The Lead and Copper Rule mandates that “[s]ystems that fail to meet the lead action level in tap samples taken pursuant to § 141.86(d)(2), after installing corrosion control and/or source water treatment (whichever sampling occurs later), shall replace lead service lines in accordance with the requirements of this section.” 40 C.F.R. § 141.84(a). Whether those remedial measures will be required in this case remains to be seen.
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In all events, the plaintiffs are seeking relief consistent with the regulations. The plaintiffs allege that the corrosive water from the Flint River water destroyed the protective coating in the water system that was built up over a period of years. They also allege that corrosive water can damage water pipes irreversibly, necessitating replacement. They have stated a claim under 40 C.F.R. § 141.84(a). They also seek the mitigation of health and medical risks resulting from the alleged ongoing violations of the SDWA. Such relief also may be called for because, as the plaintiffs allege, the lead is continuing to leach into the drinking water supply. The relief the plaintiffs can fairly be characterized as prospective, and authorized by the SDWA.
B. This holding also impacts the state defendants’ argument that the claims against them in their individual official capacities are barred by the Eleventh Amendment. The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or subjects of any foreign State.” U.S. Const. Amend. XI. In general, the Eleventh Amendment immunizes state officials from suit in federal court. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984). However, state sovereign immunity as recognized by the Eleventh Amendment does not extend to suits against state officials seeking to enjoin violations of federal law. Ex parte Young, 209 U.S. 123, 159-160 (1908). A plaintiff can “avoid[] this sovereign immunity bar by suing for injunctive or declaratory relief, rather than monetary relief.” Johnson v. Unknown Dellatifa, 357 F.3d 539, 545 n.1 (6th Cir. 2004) (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 n.10 (1989)). To determine whether a claim for such relief avoids sovereign immunity, “a court need only conduct ‘a straightforward
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inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” Dubuc v. Michigan Bd. of Law Examiners, 342 F.3d 610, 616 (6th Cir. 2003) (quoting Verizon Maryland, Inc. v. Public Service Comm’n of Maryland, 535 U.S. 635, 645 (2002)).
As noted above, the remedies sought by the plaintiffs plainly are forward-looking. They do not seek an award of damages or other forms of compensation to redress past injuries. Instead, they seek to compel state officials to comply with federal law, a form of relief authorized under the Eleventh Amendment. Ex parte Young, 209 U.S. at 159-160.
C. The individual members of the RTAB also argue that they can not be sued in their official capacities, because an official capacity suit is tantamount to a suit against the entity itself, and the RTAB is immune from suit because it is a non-juridical entity. They contend that the legislation creating the RTAB supports the conclusion that the entity was not intended to be amenable to suit, and the entity has no legal means of raising funds for payment of a judgment. That argument “ha[s] been consistently rejected by the courts.” Telespectrum, Inc. v. Pub. Serv. Comm’n of Kentucky, 227 F.3d 414, 422 (6th Cir. 2000); see, e.g., Michigan Bell Tel. Co. v. Climax Tel. Co., 202 F.3d 862, 868 (6th Cir. 2000) (allowing an action against the individual members of the Michigan Public Service Commission under Ex parte Young). Moreover, the state court cases cited in support of their argument concern money damages, which is what prompted the Michigan Supreme Court to say that “[i]t cannot be true that such an agency can be officially liable to suits for liabilities, where it has no legal means of raising funds for payment.” O’Leary v. Bd. of Fire & Water Comm’rs of Marquette, 79 Mich. 281, 286, 44 N.W. 608, 610 (1890). Here, the
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plaintiffs are seeking declaratory and injunctive relief against individual state officials, consistent with Ex Parte Young.
D. The state defendants also argue that they are immune from suit from the requirements of the SDWA because they are not responsible as a “supplier of water,” since they do not “own[] or operate[] a public water system.” See 42 U.S.C. § 300f(5). They maintain that as the State Treasurer and as individual members of the Flint Receivership Transition Advisory Board, they lack the requisite control over the Flint water system to ensure compliance with the SDWA or its regulations. They argue that they merely have financial monitoring responsibility over the city, not any level of operational control. The plaintiffs disagree and allege that the state defendants have taken actions that should result in a finding that they are “operators” of the Flint water system within the meaning of the SDWA. The term “operator” is not defined in the SDWA. 42 U.S.C. 300f(4)(A). However, the term is found in other environmental statutes, such as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Under CERCLA, “operator” is defined as “any person owning or operating” a facility. 42 U.S.C. § 9601(20)(A)(ii). The Supreme Court gave the term in CERCLA its “ordinary meaning” as “someone who directs the workings of, manages, or conducts the affairs of a facility.” United States v. Bestfoods, 524 U.S. 51, 66 (1998). The Court recognized that “operate” means “more than mere mechanical activation of pumps and valves, and must be read to contemplate ‘operation’ as including the exercise of direction over the facility’s activities.” Id. at 71.
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The plaintiffs allege that the state defendants all had significant operational control over the Flint water system, including the decision to use the water from the Flint River and authorize expenditures to upgrade the water system in preparation for using Flint River water. The plaintiffs allege that the RTAB worked with the city officials to manage the city, that the city administrator had direct control over the water supply, and the State Treasurer made decisions that directly impacted the Flint water system.
The state defendants argue that they did not have the authority to exert operational control over the Flint water system. The significance of that reality, they say, lies in the fact that none of the state defendants have the authority to implement the relief the plaintiffs are requesting. However, the plaintiffs have alleged that the RTAB must authorize all contracts or purchases over $75,000, and the State Treasurer has the final decision-making authority over where Flint gets its drinking water and must approve any amendments to the budget. It is difficult to imagine how the plaintiffs could obtain the relief they request without the participation and cooperation coerced or otherwise of the state defendants.
Courts have found that the financial authority and level involvement as alleged by the plaintiffs here to be relevant under CERCLA on the question of operator liability. See K.C.1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1020 (8th Cir. 2007) ( finding relevant that defendant’s approval was necessary for any decisions involving large expenditures); see also Exxon Mobil Corp. v. United States, 108 F. Supp. 3d 486, 531 (S.D. Tex. 2015) (finding relevant that the government, among other things, approved any expenditure exceeding $1,000); Clean Harbors, Inc. v. CBS Corp., 875 F. Supp. 2d 1311, 1327-28 (D. Kan. 2012) (finding relevant the requirement that a defendant approve significant operational expenses). Commenting on these cases, the state
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defendants concede that financial control was a relevant consideration, but they argue that it was not determinative in those cases. The state defendants are correct. Those cases found operator liability based on more than simply financial control. However, those cases were adjudicated at the summary judgment stage. Here, the plaintiffs’ allegations are sufficient to state a claim that the state defendants have exerted a level of control to bring them within the scope of the SDWA’s requirements.
IV. The Court has jurisdiction over the plaintiffs’ claims under the Safe Drinking Water Act. Those claims are not barred by the Eleventh Amendment. And the complaint states claims against all the defendants for which relief can be granted. Accordingly, it is ORDERED that the defendants’ motions to dismiss [dkt. #22, 23] are DENIED. It is further ORDERED that counsel for the parties shall appear before the Court for a status conference on August 3, 2016 at 3:00 p.m. to discuss adjudication of the plaintiffs’ motion for preliminary injunction and further case management.

Dated: July 7, 2016

s/David M. Lawson DAVID M. LAWSON United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on July 7, 2016.
s/Holly Monda HOLLY MONDA

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

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

Plaintiffs, v.

Case Number 16-10277 Honorable David M. Lawson

NICK A. KHOURI, FREDERICK HEADEN, MICHAEL A. TOWNSEND, DAVID MCGHEE, MICHAEL A. FINNEY, BEVERLY WALKER-GRIFFEA, NATASHA HENDERSON, and CITY OF FLINT,

Defendants. _______________________________________/

ORDER ALLOWING PRELIMINARY DISCOVERY

The plaintiffs filed the present action on January 27, 2016 seeking relief under the Safe

Drinking Water Act, 42 U.S.C. §§ 300f, et seq., from contamination of water supplied by the Flint

Water System. The Court held a hearing on the defendants’ motions to dismiss on May 13, 2016,

and adjourned without date a hearing on the plaintiffs’ motion for a preliminary injunction. After

the motion hearing, the Court held a status conference conducted at the request of the parties to

discuss preliminary discovery related to the preliminary injunction motion. The Court requested the

parties to submit letters outlining their respective discovery requests, which have been received.

The plaintiffs seek depositions of the following four witnesses: Captain Chris A. Kelenski,

Deputy State Director of the Michigan State Police; Michael Glasgow, City of Flint Utilities

Administrator; Rodney S. Branch, Chief of Staff to City of Flint Mayor Karen Weaver; and Jody

Lundquist, Chief Financial Officer for the City of Flint. These witnesses all submitted declarations

and an affidavit in support of the various defendants’ responses to the motion for a preliminary injunction. The plaintiffs also seek the production of the documents that each witness relied on or reviewed in preparing his or her declaration or affidavit, and any additional documents reviewed in preparation for the depositions, to be produced at the time of the relevant deposition.
The state defendants ask to depose any of the witnesses that the plaintiffs intend to call during the preliminary injunction motion hearing, and also the two experts who submitted declarations in support of the plaintiffs’ motion: Daniel E. Giammar, Ph.D., P.E. and Bruce P. Lanphear, M.D. The city defendants would like to depose all of the individuals that the plaintiffs intend to depose prior to the motion for a preliminary injunction hearing. However, all defendants request that no depositions be scheduled by any party until the Court rules on the pending motions to dismiss.
There is no suggestion in the record that the parties have conducted a conference to establish a discovery plan under Federal Rule of Civil Procedure 26(f). Normally, “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f),” unless “authorized . . . by court order.” Fed. R. Civ. P. 26(d)(1). The Court has discretion to allow discovery before a case management conference and prior to a Rule 26(f) conference if it believes that the discovery will advance the case toward resolution and address critical issues. The plaintiffs have identified important concerns in their motion for a preliminary injunction, and the Court believes that the discovery requested will aid in the determination of those matters.
The Court has not yet ruled on the motions to dismiss. Although a decision will issue on those motions in due course, the discovery related to the preliminary injunction motion should not be delayed for that reason.
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The more contentious question among the parties stems from the defendants’ insistence that any deposition taken be the only deposition that the deponents are required to give in this case. The plaintiffs prefer that all depositions taken to prepare for the preliminary injunction motion be limited in scope to the issues set forth in each witness’s declaration or affidavit. And the plaintiffs ask that the depositions not count towards the limit set forth in Federal Rule of Civil Procedure 30 because the depositions are related to the application for preliminary relief and relate solely to the feasibility and necessity of that relief.
Depositions ordinarily are noticed and taken without the involvement of the Court. However the civil rules impose certain limitations, here the most pertinent of which is that “[a] party must obtain leave of court,” absent stipulation, to take a deposition if “the deponent has already been deposed in the case[.]” Fed. R. Civ. P. 30(a)(2)(A)(ii). When such a request is made, the Court “must grant leave to the extent consistent with Rule 26(b)(2).” Fed. R. Civ. P. 30(a)(2)(A). Rule 26(b)(2) requires the Court to limit discovery that is “unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive,” or if a party already “had ample opportunity to obtain the information by discovery in the action,” or if the discovery exceeds the “scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C). And the recent amendments to the civil discovery rules found in Rule 216(b)(1) emphasize that discovery must be “proportional to the needs of the case,” assessing proportionality by considering a number of enumerated factors. Fed. R. Civ. P. 26(b)(1). The Court has considerable discretion in determining the appropriate course of discovery and tailoring the scope to the needs of each individual case. Marshall v. Belmont Cty. Bd. of Comm’rs, No. 13-966, 2014 WL 4243775, at *1 (S.D. Ohio Aug. 26, 2014) (quoting Fresenius Med. Care Holdings, Inc. v. Roxane Labs., Inc., No.
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2005-0889, 2007 WL 764302, at *2 (S.D. Ohio Mar. 9, 2007). Second depositions may be allowed under appropriate circumstances.
The defendants have identified a justifiable concern over the potential for substantial inconvenience of the witnesses who might be subjected to multiple depositions over the Flint water crisis. This is not the only lawsuit filed that deals with some aspect of this very large problem. According to a motion to consolidate actions filed in Mays v. Snyder, 15-14002, pending before another judge in this district, there are currently 52 related actions pending in the Eastern District against three groups of defendants: the City of Flint defendants, the State of Michigan defendants, and the Water Consultant defendants. The consolidation motion notes 6 putative class actions, 45 individual actions on behalf of Flint residents, and the case presently before this Court. Although the plaintiffs in the present case object to consolidation of this action with the others (since this is the only case that raises Safe Drinking Water Act claims, among other reasons), the witnesses face the likely possibility that they could be subjected to multiple depositions.
However, it is impossible to say now whether any of these burdens will come to pass. And the Court is reluctant to give advice on whether it will allow a second deposition of the defendants’ witnesses, should that request be made. If it is, the Court will assess the appropriate factors as they exist at that time. For now, however, the Court will not say that second depositions will be allowed, and therefore the Court will not limit the scope of the depositions of the witnesses that the parties choose to take at this stage of the case.
Accordingly, it is ORDERED that the parties may engage in preliminary discovery to obtain
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documents and depose the identified witnesses prior to their Rule 26(f) conference.

Dated: May 31, 2016

s/David M. Lawson DAVID M. LAWSON United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on May 31, 2016.
s/Susan Pinkowski SUSAN PINKOWSKI

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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

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

Plaintiffs, v.

Case Number 16-10277 Honorable David M. Lawson

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

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.
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§§ 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. §§
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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-pollutionhistory) (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.
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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.
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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
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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.
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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
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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).
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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
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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.
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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, the State, through its emergency manager, was responsible to “assure the fiscal accountability of the local government and the local government’s capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare.” Ibid.
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Michael Brown was succeeded by three more emergency managers — Edward Kurtz, Darnell Early, and Gerald Ambrose — although they were appointed under subsequent versions of Public Act 4. As a group, the emergency managers took major steps toward rectifying Flint’s financial emergency. Those steps included the purchase of water from the Karegondi Water Authority instead of the Detroit Water and Sewerage Department. On March 25, 2013, Flint’s City Council, while under receivership, voted to join the Karegnondi Water Authority (KWA), a consortium of cities and counties in southeastern Michigan that was created to build a water pipeline that will provide water from Lake Huron to Flint and the surrounding areas. The shift away from Detroit water was a purported cost-saving decision that was projected to have substantial savings over the next 25 years. The decision required the approval of then emergency manager Gerald Ambrose. On April 17, 2013, Flint gave notice to Detroit that it would be terminating its contract and no longer purchasing water from Detroit beginning on April 17, 2014. The termination of the contract, however, occurred before the KWA pipeline was in place. Although Detroit offered to continue to provide water to Flint at a discounted rate while the KWA finished its pipeline, Flint declined the offer. In the interim, the City Council and emergency manager decided to activate Flint’s own water treatment plant and use the Flint River as its water source.
When Flint began using the Flint River water in April of 2014, it did not treat the water with orthophosphate to control lead levels in the drinking water, and instead added chemicals, such as ferric chloride, which, studies have shown, exacerbate the problem. In the months following the switch to the Flint River, residents reported that their water was discolored, foul-smelling, and laden with sediment. Subsequent testing showed a substantial increase of lead in the Flint drinking water.
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In April 2015, after being informed that the financial emergency had been addressed, the governor appointed the City of Flint RTAB to succeed the emergency managers under the Local Financial Stability and Choice Act 436 of 2012, 141.1563. Emergency Manager Gerald Ambrose issued Order No. 20, which effectuated the transfer of governing power to the RTAB. That order contains at least two provisions that are relevant here: first, it requires that the City’s governing authority “[t]ake all steps necessary to successfully establish, develop, and complete the Karegnondi Water Authority (KWA) project”; and second, those city officials “shall not revise any Order that was implemented by the Emergency Manager during his or her term prior to one year after the termination of the receivership.”
As the Court held in its opinion denying the motion to dismiss, the state defendants qualify as operators of the Flint water system. The term “operator” is not defined in the SDWA. But that term is found in other environmental statutes, such as the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Under CERCLA, “operator” is defined as “any person owning or operating” a facility. 42 U.S.C. § 9601(20)(A)(ii). The Supreme Court gave the term in CERCLA its “ordinary meaning” as “someone who directs the workings of, manages, or conducts the affairs of a facility.” United States v. Bestfoods, 524 U.S. 51, 66 (1998). The Court recognized that “operate” means “more than mere mechanical activation of pumps and valves, and must be read to contemplate ‘operation’ as including the exercise of direction over the facility’s activities.” Id. at 71.
The Court previously found that the allegations in the complaint were sufficient to establish that the state defendants were operators of the Flint water system within the meaning of the SDWA, and the plaintiffs have tendered further evidence to support that finding. For instance, the state
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defendants routinely assessed whether plant operators were qualified, evaluated the water system’s
water-source options, and gathered information about chemicals and equipment needed for water
treatment. Indeed, the Flint Water Advisory Task Force, commissioned by the governor, issued a
report stating that
[t]he role of the emergency manager (EM) under the Emergency Manager law, PA 436, is clear and unambiguous. Though they report directly to the Department of Treasury, EMs have complete authority and control over municipal decisions. In that context, the EMs had the responsibility to ensure that Flint water system operations were adequately resourced and supported by personnel and consultants with adequate training and expertise. . . . Numerous decisions were made between December 2011 and April 2015 that had some impact on the decision to use the Flint River as the primary source of drinking water for the city of Flint. Various state-appointed EMs served during this timeframe and it was these EMs who made these decisions, not locally elected officials. Although it is true that some locally elected officials supported, acknowledged, embraced, and even celebrated some of the decisions, the decisions were not theirs to make. The state-appointed EMs made the decisions.
Pl.’s Mot., Ex. S, Pls.’ App’x pp. 669-70; see also Pls.’ App’x pp. 678-80 (Letter by Gerald
Ambrose explaining the state of affairs of the water system as of March 3, 2015, which demonstrates
his involvement with Flint’s water system).
For the last few years, Treasury officials have participated in near-weekly meetings with
Flint officials during which they discussed various aspects of the water system, including water-
quality sampling, boil-water notices, environmental compliance, and preparation to switch to a new
water source. Moreover, the water system cannot purchase treatment chemicals or implement a
project plan for water system improvements absent RTAB’s approval.
The state defendants argue that the City of Flint is the sole owner and operator of its water
system. However, for all practical purposes, the state defendants have been the municipal
government during the receivership that was put into place by Governor Snyder. The emergency
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managers “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). They had “broad powers . . . to assure the fiscal accountability of the local government and the local government’s capacity to provide or cause to be provided necessary governmental services essential to the public health, safety, and welfare.” Ibid. (emphasis added). Indeed, “the governing body and the chief administrative officer of the local government [could] 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.” Ibid. The RTAB is the next representative of the State and is required to follow the emergency managers’ established orders. And any decisions to remediate the continuing crisis must be made and approved by that board. There is substantial evidence that the state defendants have significant involvement with compliance going forward; it is their actions that are the focal point in this case.
The plaintiffs have demonstrated a strong likelihood of success on the merits of their claims. Accordingly, this factor weighs heavily in the plaintiffs’ favor.
II. Irreparable Harm It is beyond dispute that Flint residents, like all other people, need daily access to a source of safe drinking water, and the presence of lead in drinking water can cause serious health problems. Most at risk to lead exposure are infants, young children, and pregnant women. Lead can cause permanent damage to the brain and kidneys and can interfere with the production of oxygen-carrying red blood cells that perfuse other organs. Lead poisoning has been linked with lowered mental functioning in children. And it can affect more severely adults with kidney ailments and high blood pressure. That much is uncontested here.
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The Flint defendants argue, however, that the plaintiffs have not offered evidence that a single Flint water user lacks access to safe drinking water, nor that a single consumer has been forced to consume unsafe water. They characterize the harm claimed by the plaintiffs in three ways: (1) inconvenient for some; (2) embarrassing for some; and (3) and embarrassing for some because their needs are being met by people or organizations other than the government.
The Flint defendants contend that although some Flint residents suffer varying degrees of inconvenience and embarrassment in obtaining safe drinking water, such inconveniences do not rise to the level of an irreparable harm. They believe that Gilley v. United States, 649 F.2d 449, 455 (6th Cir. 1981), supports their position. It does not. The Gilley court based its decision primarily on Sampson v. Murray, 415 U.S. 61 (1974). In that case, the Supreme Court held that neither financial loss nor damage to reputation constitutes irreparable harm sufficient to support a preliminary injunction in the context of a probationary federal employee seeking to prevent her discharge. 415 U.S. at 91-92. That holding was extended by the Sixth Circuit in Gilley, when the court held that harm to a tenured federal employee’s reputation was not sufficiently irreparable to support a preliminary injunction to bar transfer of the employee to another work site. 649 F.2d at 454. Gilley is readily distinguishable from the present case on its facts, and it applies a legal standard that is unique to federal labor disputes. See ibid. (holding that the “standards for judging claims of irreparable harm in federal personnel cases . . . are more stringent than those applicable to other classes of cases.” Ibid. It does not provide guidance on the irreparable harm determination in this case.
The state defendants argue that the plaintiffs have not shown irreparable harm because they are not in danger of consuming tainted Flint water, since clean water is available for free to all those
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who need it. They also contend that the plaintiffs’ delay in filing this motion for preliminary injunction nullifies any showing of irreparable harm; and the plaintiffs delayed providing to the State the addresses of particular individuals in need, such as Jacqueline Childress (who testified about her travails at the evidentiary hearing), and therefore caused the delay in getting them the relief they needed.
The state defendants rely mistakenly on Fund for Animals v. Frizzell, 530 F.2d 982 (D.C. Cir. 1975), for the proposition that a plaintiff’s delay somehow nullifies irreparable harm. But that case dealt with a request for a preliminary injunction to stop a regulation issued by the Fish and Wildlife Service that permitted hunting the greater snow goose. Id. at 984. The D.C. Circuit rejected the plaintiffs’ argument that irreparable harm could be established by proof that a small loss of a reasonably abundant species would irretrievably damage the species. Id. at 987. In addition, the panel mentioned in passing that the plaintiffs’ delay in seeking injunctive relief “bolstered” the “conclusion that an injunction should not issue.” Ibid.
The delay in seeking injunctive relief in this case in no way resembles the circumstances in Fund for Animals. Here, once the state officials acknowledged the lead contamination in Flint’s water system, the emergency response to the crisis changed rapidly in the early months as the response teams and volunteers endeavored to meet Flint’s drinking water needs. Once the State’s efforts took shape and became more stable, the plaintiffs took the prudent step of requesting limited discovery to ensure the relief they sought was still needed. When it was clear to them that the efforts were insufficient, they proceeded with their motion. Arguing that irreparable harm is “nullified” by the plaintiffs’ own delay is unfounded. Any delay caused by lack of contact information for specific
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persons in need is largely irrelevant to the overall question of irreparable harm caused by the questionable availability of safe drinking water to Flint residents.
It is abundantly clear that the public relies every day on the ready availability of safe drinking water at the tap. The most efficient and cost effective way to deliver safe drinking water to a population is through a public water system. The SDWA was enacted in 1974 “to assure that water supply systems serving the public meet minimum national standards for protection of public health.” 1974 U.S.C.C.A.N. 6454, 6454.
A safe water supply has always been critical to civilization. Early villages were purposely located near good water supplies, and ancient trails were often routed past natural springs. In the 1600s and 1700s, water systems were localized and consisted generally of little more than a water supply source. Communities came to rely on central wells or ponds for filling buckets and carrying the water home on a daily basis.
During the 1800s, America fundamentally changed from an agrarian society to an urban industrial society. A “few modern citywide [water] systems began to appear before 1830. By the late nineteenth century, waterworks were generally regarded as a public enterprise, justified as such because of the need to protect the public health and to supply water on a citywide basis.” Martin V. Melosi, PhD, The Sanitary City: Urban Infrastructure in America From Colonial Times to the Present, 423 (2000). “The new distribution system of pipes and pumps removed from the individual responsibility for filling containers at a public well or local watercourse, and made the waterworks . . . responsible for bringing water directly to each consumer. Implicit in this system was a guarantee that the supply met the prevailing standards of purity.” Id. at 424.
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In modern society, when we turn on a faucet, we expect safe drinking water to flow out. As the evidence shows, that is no longer the case in Flint. The Flint water crisis has in effect turned back the clock to a time when people traveled to central water sources to fill their buckets and carry the water home.
Although the evidence from the hearing established that Flint’s tap water is not safe to drink, the defendants maintain that injunctive relief is not necessary because Flint residents can obtain all the water they need for drinking from bottles available at points of distribution (PODs) throughout the city, and tap water run through a filter contains only small amounts of lead, which measures below the EPA’s action level prescribed by the SDWA’s regulations. They rely on Lyda v. City of Detroit (In re City of Detroit, Mich.), No. 13-53846, 2014 WL 6474081 (Bankr. E.D. Mich. Nov. 19, 2014), as authority for the idea that community water distribution efforts negate a finding of irreparable harm. In that case, the plaintiffs sought, among other things, to enjoin the City of Detroit from shutting off their water due to unpaid water bills. Id. at *1. The court assessed the preliminary injunction factors, even though it questioned its authority to grant such relief. Id. at *13. The court concluded that an injunction would not be warranted because there was very little likelihood of success on the merits, even though there was strong evidence of irreparable harm. Ibid. The court gave two reasons for rejecting the defendants argument that the availability of bottled water ameliorated the irreparable harm caused by water shut-offs: first, bottled water was more expensive, and second the court noted “it is challenging to commit the time and energy necessary to purchase and transport sufficient quantities of water.” Id. at *12. Although the Flint defendants argue that the Lyda court denied injunctive relief, in part, because of the patchwork of charity and public funds available to the plaintiffs to assist with obtaining water, the case plainly does not stand for that
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proposition. See Lyda, 2014 WL 6474081, at *11 (stating that “there ha[d] been no analysis of whether the available resources w[ould] be sufficient to address [the plaintiffs’] need[s] over the long term”). Moreover, the plaintiffs have offered evidence that rebuts the defendants’ assumptions that the distribution of water filters and bottled water addresses the obvious daily need for safe drinking water.
The filtered water solution is a commendable step, but it is uneven at best. MDEQ Chief Bryce Feighner testified that filtered water is safe for everyone to drink, including young children and pregnant women. But he also acknowledged and agreed with a Centers for Disease Control (CDC) study that found that certain Pur and Brita filters make the Flint tap water safe to drink only when the filters are properly installed and maintained.
Christopher Kelenske, a Captain with the Michigan State Police who commands the Emergency Management Homeland Security Division, assumed control of the emergency response in Flint in January 2016, and presently manages the State’s response to the Flint water crisis and coordinates the distribution of resources in Flint. He testified that between 30,000 and 34,000 homes rely on the Flint water system. He confirmed that water filters and cartridges are available to Flint residents at several PODs throughout the city. The water filters were confirmed by the National Sanitation Foundation to reduce lead in drinking water. According to Captain Kelenske, as of April 11, 2016, all of the active water customer households had been visited by water response teams. Of those homes, 90% confirmed having water filters. The remaining 10% of homes have been visited, but response teams have been unable to make contact to confirm the residents have the water filters. Additionally, 89.1% of the 5,686 apartments in Flint have been visited and 99.7% of those visited confirmed having water filters. As of April 11, 2016, more than 100,000 certified
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water filters, 240,000 water filter cartridges, and 44,000 water testing kits had been distributed. He also testified that the MDEQ recently began a program called Community Outreach and Resident Education (CORE), which sends out teams to install water filters and educate residents about the water crisis. In August 2016, CORE personnel began training Flint residents to take over the program. There are currently two teams in operation and they have visited approximately 1,100 homes and installed approximately 400 water filters.
Nonetheless, distributing water filters alone does not guarantee that they are properly installed and maintained. For instance, Michael Hood, the executive director of Crossing Water, a non-profit corporation started in January 2016 to respond to the Flint water crisis, testified that his organization delivers bottled water and water filters to Flint residents using rapid response service teams (RRSTs), and also installs water filters and installs new plumbing when necessary to allow for the installation of water filters. Crossing Water has visited more than 400 homes and interacted with approximately 800 families in Flint. According to Mr. Hood, the installation process is not as simple as one might imagine. Damage to the faucet and pipes, which he often finds, prevents proper installation. Aerators must be removed from the faucet head and cleaned, which can be difficult if the aerator has corroded onto the faucet or the resident does not have the dexterity to remove it. After the aerator is reattached, the appropriate adaptor and washer that comes with the water filter must be attached to the faucet. However, sometimes the adaptors do not fit a given faucet. If the filter is attached, a filter cartridge must then be placed inside that water filter and cold water only must be run through the filter to make sure it is working.
Mr. Hood testified that some residents can install the filters easily, but others have difficulty for a variety of reasons: some are illiterate or do not read English and therefore cannot read the
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instructions; others have cognitive issues, are elderly, or lack the tools necessary for the installation; and still others have faucets that simply are not compatible with any of the filters.
Moreover, once a water filter is installed, it is important to maintain it by periodically replacing the cartridge. The filters have lights that indicate when the cartridge is expired or about to expire. But it is also important to run only cold water through the filters, because hot water can compromise the cartridge. Mr. Hood testified that some residents have been given the wrong cartridge replacements, are running hot water through the filters, and in one case a resident was using the filter without a cartridge, rendering it entirely ineffective. Mr. Hood testified that the data that have been collected by Crossing Water indicates that as many as 52% of the homes visited by Crossing Water had some type of problem with the water filters. Although on cross-examination, the city defendants challenged Crossing Water’s computation and suggested that the actual number supported by the data was closer to 23%, even that number indicates that the distribution of water filters does not ameliorate the danger of lead contamination to a large swath of Flint water customers.
Cynthia Roper, the director of Michigan Voice, an advocacy group, testified that she has witnessed confusion about maintaining water filters. For example, in July she spoke with a woman who had her 15-year-old son install the water filter, but the resident was not sure it was installed properly. When asked how long it had been since she had replaced the filter, the woman reported five months, which far exceeds its effective life. Ms. Roper also mentioned that the woman ran hot water through the filter, which compromises the filter.
The installation and proper maintenance of water filters that allow delivery of tap water with lead contents below the Lead and Copper Rule’s action level might be an acceptable response that
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blunts the plaintiffs’ claim of irreparable harm. But the defendants have not offered sufficient evidence that the water filter solution is an effective one, because there is no reliable data establishing that the filters are properly installed and consistently maintained.
That leads to the question whether the defendants’ efforts to furnish bottled water adequately alleviates the harm they caused with lead contamination. Certainly, since the Flint water system cannot deliver safe drinking water to the homes of Flint residents through its water main and service line distribution system, then alternate container delivery — bottled water — becomes necessary. The defendants insist that they have satisfied that obligation, and indeed, significant efforts to distribute bottled water have been undertaken.
Captain Kelenske testified in an affidavit that on January 6, 2016, the State Emergency Operations Center (SEOC) was activated and staffed daily from 8:00 a.m. until 5:00 p.m, and later those times were extended to 8:00 p.m. seven days a week. On January 8, 2016, Flint’s Mayor dedicated five Flint fire stations as points of distribution. Additionally, nine Flint churches were supplied with bottled water for distribution. The fire stations were staffed by the American Red Cross and remained open from 9:00 a.m. to 9:00 p.m. State agencies also have been working on translating written information to be distributed into multiple languages, including Spanish, ChineseMandarin, Arabic, Hmoob-Hmong, and American Sign Language.
Beginning on January 14, 2016, in addition to current water supplies, more than 12,000 cases of water began to arrive daily for distribution. According to the Flint defendants, there is no limit on the amount of water a resident may have, and residents are not required to produce identification to receive Commodities. More points of distribution were set up and service announcements were
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made to inform Flint residents of their locations. According to Captain Kelenske, as of April 11, 2016, more than 8 million liters of water had been distributed.
The State continues to operate nine PODs, one in each of Flint’s nine wards. The Flint Transit Authority is willing to make adjustments to bus routes to assist with water distribution, and will provide free rides to the points of distribution if needed. The United Way has provided bus passes for those who cannot afford them.
Kelenske testified that his agency identified individuals in Flint who are homebound and created an Access and Functional Needs list (AFN list). The initial AFN list was compiled by contacting various agencies that serve, for example, the aging population. As of date of the hearing, a list of 1250 residents had been compiled; those residents receive weekly deliveries of water. He contends that the people on the list are visited by rapid response teams approximately every five to seven days. Flint residents may also call either 211 or (866) 561-2500 if they need assistance installing water filters or require deliveries of water. The requests made through the call numbers are sent to the emergency operations centers several times a day and delivery routes are scheduled. The delivery teams are comprised of individuals from the American Red Cross and AmeriCorp National Civilian Community Corps. When the teams make contact with Flint residents, they determine whether the residents need to be added to the AFN List.
Those efforts certainly are commendable. However, the plaintiffs have offered credible anecdotal evidence that indicates that the distribution network is in flux and not completely effective in providing safe drinking water to several households.
For instance, Loretta Burns, a 69-year-old long-time Flint resident, testified in an affidavit that getting bottled water has become a major challenge. She is the primary care giver for two of
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her grandsons, and takes care of her husband, who has significant health problems. Ms. Burns is the only person in her household capable of obtaining cases of bottled water. She says that shortly after the water crisis was announced, her family received home deliveries of bottled water from volunteers and community organizers. After a month, however, those deliveries ceased. Ms. Burns says that it has been difficult to get information, and only learned that she was able to get water from one of the fire stations because she happened to drive by it. And when she did ask for water from that location, she was limited to two cases, which forced her to stop at various churches advertising bottled water. Furthermore, Ms. Burns says that the lines at the fire station were long, she had to sign her name, give her address, and show her driver’s license to receive the water. When the fire station stopped providing water, she drove around town looking for a new distribution center and asked neighbors where water could be found. Because of the size of her family, Ms. Burns has to pick up cases of water about three times a week, and she is never sure where water will be available, or how much she will be allowed to have. Ms. Burns says that she has filters, but that she has received conflicting information about who should use the filters and how often the filters need to be changed.
Jacqueline Childress, a 60-year-old retired General Motors inspector, testified at the hearing that she has been a resident of Flint for most of her life. She rents a house in Flint and lives with her 40-year-old son who has a mental disability. Ms. Childress relies on her pension and Social Security benefits to support herself. She does not drink the tap water in her home. Neither she nor her son own a vehicle; she must rely on others to drive her to pick up water from the various PODs. Sometimes her other son gives her a ride, but other times she pays anywhere from $10 to $20 for a ride to pick up the bottled water she uses for drinking. When the water crisis first began, Ms.
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Childress says that she often received deliveries of bottled water. However, the water deliveries have slowed down and now are not frequent. She has called 211 several times, but has yet to receive a bottled water delivery as a result of calling 211. Ms. Childress testified that she has plates and screws in her legs, which makes it more difficult to carry cases of bottled water. She acknowledged that there are sites where water can be obtained, but without a car she cannot retrieve the drinking water. She knows buses are available, but she is only able to carry one case of bottled water at a time, which may only last her family half a day. She said that she has run out of bottled water a number of times. Ms. Childress testified that she has a water filter, but when it was installed the faucet broke. She said that she was unaware that the plumbers union had been replacing faucets at no cost. Without a working faucet, she cannot use a water filter. She said that for many people on her block it is a big struggle to get the bottled water they need.
Jerry Gains is a 67-year-old veteran who lives with his wife and daughter; all suffer from serious medical conditions. Before the fire station near him stopped providing water, he was making three trips a week to retrieve cases of water. When he would go to the station, he could only get two one-gallon jugs or two cases of water per visit, which was simply not enough to meet his household’s needs. He was forced to drive around the city searching for water to supplement the water he received from the fire station. Recently, after several changes in distribution centers, he has been able to get as much water as he asks for. Mr. Gains notes, however, because he is unable to walk up his front steps with a case of water, he has to toss the cases to the top of the stairs so his daughter can pick them up. He has to take breaks when unloading the water because he gets short of breath. He only recently heard about the 211 number from a neighbor.
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A filter was delivered to Mr. Gain’s home early in 2016, but it did not have installation instructions. He installed it and assumed it could remain in place until the indicator light turned red. However, after four months the indicator light did not change, and a canvasser subsequently told him that he should be changing the filter at least once a month. Therefore, he and his family do not trust the filtered tap water.
Community organizers contend that the experiences of Ms. Burns, Ms. Childress, and Mr. Gains are not unique. Mary Brady-Enerson testified in an affidavit that she has canvassed Flint since January 31, 2016 and has encountered residents without access to safe drinking water, faucets that cannot use filters, and those who are confused on how to properly install and monitor filters they have. She also contends that the new distribution centers do not open until noon and close most days by 6 p.m.
Darnell Ishmel, who runs FlintH2o, a community-led digital platform that seeks to coordinate water and resource access for Flint, has also witnessed Flint residents struggling to access water. He witnessed one man struggling to carry two cases of water on his back to his multigenerational family, as he does several times a week. He recalls one instance when a semitrailer truck from Maryland arrived during a snowstorm blared its horns and called out “Water!” to the Flint residents. Despite being within a few blocks of one of the fire stations, residents from the surrounding area came out in the snow to receive water from the truck.
Despite the substantial efforts of Captain Kelenske and others, it is clear that some residents, who are actively seeking safe drinking water, are encountering great difficulty in accessing safe drinking water by retrieving bottled water from the PODs.
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The Sixth Circuit has held that, “‘despite the overall flexibility of the test for preliminary injunctive relief, and the discretion vested in the district court, equity has traditionally required a showing of irreparable harm before an interlocutory injunction may be issued.’” Nat’l Viatical, Inc. v. Universal Settlements Int’l, Inc., 716 F.3d 952, 957 (6th Cir. 2013) (internal marks omitted) (quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 103 (6th Cir. 1982)). Plaintiffs seeking a preliminary injunction must “demonstrate that irreparable injury is likely in the absence of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original) (citing cases). “‘A preliminary injunction will not be issued simply to prevent the possibility of some remote future injury.’” Ibid. (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948.1, p. 139 (2d ed. 1995)).
The plaintiffs have satisfied this factor, even in the face of the defendants’ evidence of the availability of bottled water and filters. The fact that such items are available does not mean that they are reliably accessible or effective in furnishing safe drinking water to every household. Bottled water is heavy, and not all of Flint’s residents are capable of transporting the cases of water effectively. Indeed, the endeavor of hunting for water has become a dominant activity in some Flint residents’ daily lives. The initial surge of volunteer support last winter aided greatly in the distribution efforts, but as that effort wanes, for any number of reasons, access to water becomes more difficult. Furthermore, leaving water filters at residents’ doorsteps — even if the instructions are provided in multiple languages — does not ensure proper installation and maintenance. The likelihood that some of the filters are installed improperly and Flint residents are continuing to consume lead is quite high under the circumstances.
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Additionally, the plaintiffs have shown that the AFN list is inadequate and there are no clear criteria for getting onto or being removed from the list. The plaintiffs argue persuasively that in light of the varied challenges facing Flint residents, the AFN list only addresses a small part of the access problem. The plaintiffs also point out that the 211 help line is not always effective. As Ms. Childress testified, the 211 staff “are very nice when you call them, but they just don’t come.” Some residents have stopped calling, and some, because illiteracy is common and internet access limited, still do not know that 211 is available to take delivery requests.
The plaintiffs have made a significant showing that at least some residents have struggled to obtain the water they need to sustain themselves. And their evidence raises serious questions as to the efficacy of the emergency response. Flint has been struggling to access safe drinking water for the better part of a year. With the colder months approaching, it is reasonable to conclude that the difficulties will worsen. This factor weighs in favor of the plaintiffs.
III. Harm to Others The Flint defendants maintain that injunctive relief in the form requested by the plaintiffs — particularly door-to-door water delivery to every home in the city — will cause them great financial harm, and it is speculative that the relief will be of any benefit. David Sabuda, Flint’s Interim Chief Financial Officer, testified that although Flint has a water fund that accounts for the water revenues and the water expenses for the city, it has a projected negative cash flow of approximately $18.9 million between June of 2016 and June of 2017. He also testified that although Flint is anticipating spending $12.9 million on water in the current fiscal year, those funds can be used only to purchase water, and the funds cannot be used to fund a door-to-door water delivery system for bottled water. Sabuda said that if Flint were required to pay for a door-to-door bottled
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water delivery service, it would be $9 million a month, and such an expense would be devastating to the City of Flint.
Similarly, Captain Kelenske testified that his staff projected the cost of providing door-todoor delivery service of five cases of bottled water each week for every home in Flint to be approximately $9.4 million a month, which is $6 million more than his operation is spending now. At 10 cases a week, the estimated cost would be $11.4 million a month. Captain Kelenske expects it would take 70 teams to accomplish such deliveries and his recommendation would be to activate the National Guard, although he offered no supporting information for either the amount of expense or the need for the National Guard call-up.
Added expenses of that magnitude, if shouldered solely by the City of Flint, indeed would be daunting. But, as noted above, the city still is under the governmental control of the State of Michigan through the governance of the RTAB. The plaintiffs have furnished evidence that of the $212 million appropriated by the State to respond to the Flint water crisis, about $100 million remains unspent, and only about five percent of the total has been used to purchase bottled water and filters.
The defendants argue that the large cost of the proposed injunctive relief is not worth the benefit, relying on Sierra Club, Inc. v. Bostick, 539 F. App’x 885, 888 (10th Cir. 2013). In that case, environmental groups sued to enjoin the construction of the Gulf Coast Pipeline and sought a preliminary injunction until their case could be litigated fully. The court found that because the enormous cost of delaying the project (“hundreds of thousands of dollars each day,” id. at 890) could not be justified by a “minimal impact on the environment,” ibid., the plaintiffs failed to show that the balance of the equities favored them. That case is not persuasive. The harm in this case is not
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environmental; it concerns public health and safety. The “minimal” harm posed by the pipeline construction in Bostick pales to the dangers posed by lead in Flint’s drinking water and the daily struggles Flint residents have endured to obtain safe drinking water for the past year.
Moreover, in the Sixth Circuit, “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended’ in compliance with an injunction ‘are not enough’” to show a substantial harm. United States v. Edward Rose & Sons, 384 F.3d 258, 264 (6th Cir. 2004) (quoting Baker v. Adams County/Ohio Valley School Board, 310 F.3d 927, 930 (6th Cir. 2002)). And, as the plaintiffs point out, the harm to be remediated by the injunction is largely of the defendants’ making. See Davis v. Mineta, 302 F.3d 1104, 1116 (10th Cir. 2002) (holding that where state defendants proceeded with the construction of a highway project without complying with various environmental statutes and “‘jumped the gun’ on the environmental issues by entering into contractual obligations that anticipated a pro forma result,” injunctive relief was proper in part because “the state defendants are largely responsible for their own harm,” and the environmental harms from proceeding without proper compliance with the statutes outweighed the costs to the defendants).
Finally, the financial harm to the defendants can be mitigated by scaling back the scope of injunctive relief sought in a way that ensures the benefit of safe drinking water in each household. As noted above, water filters can provide homes with safe drinking water that complies with the Lead and Copper Rule regulations if those filters are installed and maintained properly. The defendants need not deliver water to homes that have properly installed and maintained faucet water filters, as long as the defendants can monitor and verify the effectiveness of the filters.
It is clear that the interim relief the plaintiffs seek would provide a concrete benefit for many Flint residents. Flint’s monetary concerns, although valid, are not enough to tip the scale in their
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favor in light of the physical harm Flint residents have been exposed to during this water crisis. Moreover, the Flint defendants would not be required to shoulder the full cost if the plaintiffs’ requested relief is granted. This factor also favors the plaintiffs.
IV. The Public Interest There can be no dispute that “the public interest at stake here, the quality of public drinking water and the health and safety of the consumers, is fundamental.” United States v. Alisal Water Corp., 431 F.3d 643, 656 (9th Cir. 2005). Where the public interest is involved, “equitable powers assume an even broader and more flexible character than when only a private controversy is at stake.” Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946). “Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.” Ibid. The SDWA gives the district court authority to enter “such judgment as protection of public health may require.” 42 U.S.C. § 300g–3(b). The Flint defendants argue that granting this preliminary injunction would force the City to reallocate both personnel and money away from its most critical priority: restoring its water system. They argue that such relief would contravene the public interest because it would prolong the water crisis in Flint. The plaintiffs argue that the relief they seek is the type of relief contemplated for those that seek exemptions from the Lead and Copper Rule. 40 C.F.R. § 142.62(f)-(h). The plaintiffs have the better argument. There is no evidence that an injunction will necessarily halt or delay restoration of Flint’s water system. And even if it did delay the process, it is in the public interest to address the immediate health and safety needs of residents before addressing the long-term needs. Here, the
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plaintiffs seek a stop-gap measure that provides ready access to safe drinking water. It is in the best interest of everyone to move people out of harms way before addressing the source of the harm.
The Flint defendants also argue that Rizzo v. Goode, 423 U.S. 362 (1976), counsels courts to be reluctant to enjoin governmental bodies. But in that case — which addressed the district court’s insertion of “itself by injunctive decree into the internal disciplinary affairs of [a] state agency,” id. at 380 — the Supreme Court merely reiterated the “settled rule that in federal equity cases the nature of the violation determines the scope of the remedy.” Id. at 378 (internal quotation marks omitted).
Here, the Court is not being asked to meddle with an agency’s internal operations. The plaintiffs are seeking temporary relief to provide Flint residents basic life necessities while the water crisis is resolved. Furthermore, even with the proposed injunctive relief, the defendants still enjoy wide latitude to address Flint’s water needs. How the water crisis is resolved ultimately will be left to the City of Flint and the State of Michigan. Nonetheless, there is an immediate danger to Flint residents, and the nature of the defendants’ violations reasonably justify the relief ordered herein. There is already a water distribution mechanism in place, so the relief the plaintiffs seek in light of what is already being provided may be a far less drastic than the defendants believe. The public interest factor favors the plaintiffs.
V. Remedy This lawsuit was prompted by the lead contamination of the Flint water delivery system. The interim relief is intended to provide a rough substitute for the essential service that municipal water systems must furnish: delivery of safe drinking water at the point of use. The Court is convinced that this service can be achieved by means of the current water main and service line infrastructure,
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augmented by effective faucet filters that are installed and maintained properly. If the defendants cannot establish that a household is so equipped, then they must deliver the water by other means. They also must provide information to residents about the current state of the water distributed through the system, proper use and maintenance of filters, and points of distribution of bottled water.
Accordingly, it is ORDERED that the plaintiffs’ motion for a preliminary injunction [dkt.

#27] is GRANTED.

It is further ORDERED that the defendants, their agents and employees, and those in active

concert and participation with them MUST provide door-to-door bottled water delivery in the manner outlined below to every non-exempt household served by the Flint Water System.
It is further ORDERED that an exempt household shall consist of any of the following:

A. delivery;

Any household in which the residents affirmatively opt out of door-to-door water

B. Any household in which the residents refuse to permit the installation and maintenance of a qualifying faucet water filter at public expense;

C. Any household in which the defendants verify that a qualifying faucet water filter is installed and properly maintained.

D. Any household that is not occupied by residents.

A qualifying water filter (1) is a point-of-use faucet filter certified by the National Sanitation

Foundation to remove lead up to 150 ppb and compatible with the household’s plumbing in the

kitchen and all other locations where a filter is installed; (2) has had the faucet filter properly

installed and verified as properly functioning; and (3) is periodically inspected by a qualified person

to verify that cartridges are replaced consistent with the manufacture’s service life recommendations

and that the water filters otherwise are maintained properly. The defendants must inspect each filter

to ensure the filter and cartridge have been maintained properly and are functioning. Inspections

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must occur at least monthly for the first three months, and at least every other month thereafter. The
defendants must provide instructions to one or more adult residents regarding the use and
maintenance (including the frequency for changing cartridges) of any filter used by or installed at
that household.
It is further ORDERED that the door-to-door bottled delivery program for non-exempt
household must conform to the following criteria:
A. The defendants must confirm the number of residents in each household and provide each household with four cases of bottled water per week per resident; each case must contain at least the equivalent of twenty-four 0.5 liter bottles of water;
B. The defendants may leave bottled water deliveries at each household in the program in an appropriate and conspicuous location if residents are not home at the time of delivery;
C. The defendants must notify in writing residents of households that opt out of water delivery that they may opt back in to receive weekly bottled water deliveries at any time by calling 211, or another telephone number provided by the defendants.
D. The defendants must ensure that the water distribution sites operated by the State of Michigan, or equivalent distribution sites, remain in operation as necessary to provide bottled water to those residents who opt out of the bottled water delivery program.
It is further ORDERED that the defendants must provide Flint residents with clear and
current information about lead contamination in the drinking water that states that: (1) unfiltered tap
water from the Flint Water System is currently unsafe for drinking, cooking, brushing teeth, or
preparing baby formula because it may contain high levels of lead; (b) lead exposure can cause
serious and permanent health harms, especially when consumed by pregnant women, infants,
children less than six years old, and adults with high blood pressure or kidney ailments; and (c)
faucet filters are effective at removing lead only when properly installed and adequately maintained.
The notices must also list the locations, hours, and resources available at state-run water distribution
sites, and provide a phone number, email address, and website that Flint residents can use to notify
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the defendants if they lack access to sufficient safe water and to arrange for a prompt bottled water delivery or faucet filter replacement, installation, or maintenance. The initial notices must be delivered promptly, and thereafter whenever there is a material change in the information furnished. The notices must be delivered in a manner reasonably calculated to ensure actual notification to each household.
It is further ORDERED that notices and instructions required by this order must be presented in multiple languages, including English, Spanish, Chinese, Arabic, and Hmong.
It is further ORDERED that the defendant will file a status report with the Court on or before December 16, 2016 documenting compliance with each of the provisions of this order.
It is further ORDERED that this order shall be effective immediately and continue until further order of the Court.
s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: November 10, 2016
PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on November 10, 2016.
s/Susan Pinkowski SUSAN PINKOWSKI
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

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

Plaintiffs, v.

Case Number 16-10277 Honorable David M. Lawson

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 DENYING MOTION TO STAY PRELIMINARY INJUNCTION

On November 10, 2016, the Court ordered that the defendants — operators of the Flint water

system — provide the residents of Flint with safe drinking water at the point of use. That ruling was

based on testimony furnished by the State defendants that unfiltered tap water delivered to Flint

users does not comply with the Lead and Copper Rule and is unsafe to drink. The primary method

of water delivery outlined in this Court’s order was through the Flint Water System’s existing

transmission infrastructure with the added protection of properly installed and maintained water

filters. The State’s witnesses assured the Court that tap water run through a properly installed and

maintained water filter is safe to drink. For those households that do not have a properly installed

and maintained water filter, the Court ordered the defendants to deliver bottled water.

The Michigan Attorney General has filed a motion on behalf of the State defendants asking

that this Court’s order for safe drinking water be stayed. He says that the current method of

“delivery,” whereby Flint residents must find a way to retrieve their own drinking water, and can use water filters that may or may not be installed and maintained correctly, is good enough. He bases his arguments on the premise that all of the factors relevant to a stay pending appeal favor the Court staying the preliminary injunction. He is incorrect. The State defendants’ arguments consist of a rehash of contentions advanced and rejected by the Court earlier in this case, a mischaracterization of the nature of the relief ordered, and factual assertions that are unfaithful to the record. The motion to stay the preliminary injunction will be denied.
I. Based on the evidence presented by the parties — including the State defendants’ witnesses — the Court was convinced that the most effective means to ensure compliance with the Safe Drinking Water Act’s (SDWA) Lead and Copper Rule for the benefit of Flint residents was the proper installation and maintenance of faucet water filters for all water system users. That conclusion was supported by the testimony of two of the State defendants’ witnesses: MDEQ Chief Bryce Feighner and Michigan State Police Captain Christopher Kelenske. For those households for which the defendants could not demonstrate compliance, the Court ordered that bottled water be delivered. In their stay motion, the State defendants cite the cost of monthly delivery of bottled water to 100% of the Flint households as the basis for their conclusion that the Court’s remedial order is unreasonable and overbroad. That peculiar argument is based on a demonstrably false premise. Moreover, when considering the nature of the remedy ordered to address the continuing violation of the SWDA’s regulations, and the consequences of noncompliance, a balance of the applicable factors does not favor a stay of the preliminary injunction.
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The traditional factors balanced with each other when deciding whether to stay a court’s order pending appeal are: “‘(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay.’” Michigan State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 661 (6th Cir. 2016) (quoting Serv. Emp. Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012) (quoting Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991)). The factors are “‘interrelated considerations,’” Husted, 698 F.3d at 343 (quoting Griepentrog, 945 F.2d at 153), meaning that a strong showing of irreparable injury, for example, might make up for a modest showing of likely success, Griepentrog, 945 F.2d at 153-54 (observing that “more of one excuses less of the other” (citations omitted)). However, a defendant seeking to stay a district court’s judgment “is still required to show, at a minimum, ‘serious questions going to the merits.’” Ibid. (quoting In re DeLorean, 755 F.2d 1223, 1229 (6th Cir. 1985).
A. The State defendants argue that they are likely to be successful on their appeal for at least four reasons. They say, first, that the Treasurer and members of the RTAB are not “operators” of the Flint water system; second, the Eleventh Amendment prohibits the remedial relief the plaintiffs seek because the plaintiffs failed to demonstrate an ongoing violation of the Safe Drinking Water Act (SWDA); third, the injunction is overbroad and unsupported by reliable evidence; and fourth, the Court failed to comply with the security requirement of Federal Rule of Civil Procedure 65(c). The Court will address each in turn.
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The argument that the State defendants — the state treasurer and members of the Flint Receivership Transition Advisory Board (RTAB) — are not operators of the Flint water system has been discussed and rejected in the Court’s opinion denying the motion to dismiss, Concerned Pastors for Soc. Action v. Khouri, No. 16-10277, 2016 WL 3626819, at *11 (E.D. Mich. July 7, 2016), and the order for the preliminary injunction, Concerned Pastors, 2016 WL 6647348, at *6-8 (E.D. Mich. Nov. 10, 2016). The State defendants rely on Phillips v. Snyder, 836 F.3d 707, 715-16 (6th Cir. 2016), for the proposition that emergency managers appointed by the governor are local actors. The case contains no such holding, although it does confirm that “states may allocate the powers of subsidiary bodies among elected and non-elected leaders and policymakers.” Id. at 715 (citing Sailors v. Board of Education, 387 U.S. 105 (1967)). And it is true that the mere act by a state governor of appointing a public official — even when that official displaces a locally elected official — does not make the governor responsible for everything that the appointee does. But as discussed in detail in the previous opinions, Michigan law subjects emergency financial managers to oversight by the governor and the state treasurer, and curtails the power of local government officials during the state receivership. Mich. Com. Laws §§ 141.1549(2), (3)(d), (3)(e), (8); Phillips, 836 F.3d at 712.
Moreover, Flint is still in state receivership and the emergency manager orders are still in effect and cannot be modified by the City. One such order requires the City to take all steps necessary to complete the KWA project. The RTAB must make and approve any decisions to remediate the continuing crisis in Flint, and substantial evidence shows that the State defendants have significant involvement with compliance going forward. Because the State defendants effectively “manage[] . . . the affairs of [the Flint water] facility,” United States v. Bestfoods, 524
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U.S. 51, 66 (1998), they are responsible as operators because they “exercise . . . direction over the facility’s activities,” id. at 71.
The State defendants’ argument that the Eleventh Amendment prohibits the Court’s injunction is premised on their belief that there are no ongoing violations of the SDWA. The evidence establishes otherwise. Monitoring violations are continuing and are likely to recur. Neither the sentinel site program nor residential monitoring that relies on volunteers who do not have homes from the pre-selected high-risk pool comply with the Lead and Copper Rule (LCR). Mr. Feighner testified that the sentinel and extended sentinel sites do not all meet the LCR’s highrisk criteria. Moreover, as the plaintiffs point out, Flint’s Water Treatment Plant Supervisor JoLisa McDay admitted at deposition in July 2016 that the water system did not have the proper monitoring program in place. Nor is it likely that the monitoring will be complied with in the near future because there are not an adequate number of qualified personnel to ensure compliance. Although Mr. Feighner testified about the current monitoring efforts, he did not rebut evidence of inadequate staffing and long-standing violations of the LCR monitoring requirements.
The State defendants make the point that the Court erred by stating that the 15 ppb “action level” for lead content was a “maximum contaminant level” (MCL). They are correct that this statement was erroneous. The EPA’s MCL goal for lead is zero. The EPA decided not to establish an MCL for lead, and instead adopted a treatment technique approach, which set an “action level” of 15 ppb that triggered a number of compliance measures such as corrosion control, source water treatment, lead service line replacement, and public education. Maximum Contaminant Level Goals and National Primary Drinking Water Regulations for Lead and Copper, 56 FR 26460-01 at 26477. Nonetheless, the plaintiffs are correct that the Court did not rely on the misstatement of an MCL to
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conclude that the Flint water system did not have optimal corrosion control treatment. The Court summarized the relevant regulations and credited information that showed lead levels in the water both above and below 15 ppb. The Court finally concluded that it is not in dispute that the action level was exceeded, and Mr. Feighner conceded that unfiltered tap water in Flint is not safe to drink at this time. The SDWA violations continue, and the injunction is designed as a remedial measure to order compliance going forward.
The State defendants’ argument that the injunction is overbroad and lacks evidentiary support is based on the mistaken notion that the primary remedial action contemplated is the door-todoor delivery of bottled water to all residents in Flint. The main thrust of the ordered relief is the proper installation and maintenance of tap water filters. For those homes that have properly installed and maintained water filters in place — which is the vast majority of residences, if the State defendants’ witnesses are to be believed — bottled water delivery is not necessary and was not ordered. But there are two problems with the State defendants’ position. First, handing out a water filter does not ensure that it is effective in reducing lead content of drinking water to an acceptable level. There must be a protocol in place to see that the filters are installed and maintained properly. Otherwise, the presence of a filter alone may cause the more insidious problem of false security in the suitability of the tap water for drinking. Second, for many without a proper filter in place, the difficulty of obtaining drinking water is significant, as the testimony demonstrated. The evidence of a systemwide problem supports the need for systemic relief for Flint residents. The SDWA empowers citizens to act as “private attorneys general” to “seek relief . . . on behalf of society as a whole,” further suggesting the propriety of a systemwide remedy. See Ellis v. Gallatin Steel Co., 390 F.3d 461, 477 (6th Cir. 2004) (discussing Clean Air Act citizen suits); 42 U.S.C. § 300j-8(a)(1).
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The injunction is tailored to the specific systemic harms found and is appropriate in scope. A stay pending appeal would perpetuate the very irreparable harm the preliminary injunction is designed to address.
Finally, the defendants are correct that the Court did not address whether a security bond was required under Federal Rule of Civil Procedure 65(c). “[T]he rule in [the Sixth] [C]ircuit has long been that the district court possesses discretion over whether to require the posting of security.” Appalachian Reg’l Healthcare, Inc. v. Coventry Health & Life Ins. Co., 714 F.3d 424, 431 (6th Cir. 2013) (quoting Moltan Co. v. Eagle–Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (citing Roth v. Bank of the Commonwealth, 583 F.2d 527, 539 (6th Cir. 1978)) (emphasis in original). “A court errs when it “‘fail[s] to . . . expressly consider[ ] the question of requiring a bond’ when the issue has been raised.” Ibid. (quoting Roth, 583 F.2d at 539) (emphasis added). The defendants never broached the issue, and they have not asked for reconsideration on that point. No error occurred, and the Court has significant discretion to waive the bond requirement in light of the public interest. See Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171, 1175-76 (6th Cir. 1995).
The State defendant have not demonstrated that they are likely to prevail on the merits of the appeal on any of these points, and therefore this factor does not favor a stay of the injunction.
B. It is unlikely that the State defendants will be irreparably harmed absent a stay. The defendants acknowledge an obligation to furnish safe drinking water to Flint residents — an obligation which has eluded them following the calamity brought about by the state-appointed emergency managers’ decisions when operating the Flint water system. The Court’s injunction is
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designed reasonably to ensure that the measures taken will be effective to satisfy the demands of the SDWA and its regulations in the short term.
Notwithstanding the response to the crisis by the State defendants, Flint residents continue to suffer irreparable harm from a lack of reliable access to safe drinking water. This is more than a mere inconvenience; hunting for water has become a dominant activity in some residents’ lives, causing anxiety, stress, and financial hardship. As noted above, those who rely on filters that may not be properly installed or maintained are at risk of exposure to lead. As noted by the record, there are systemic barriers to water access that the injunction is tailored to address. Compliance with the order does not require bottled water delivery in perpetuity, or to every household. The defendants may discontinue delivery if they ensure that a home has a properly installed and maintained water filter, or residents opt out of the delivery service.
C. The State defendants contend that the public interest favors a stay because of the financial commitment necessary to comply with the Court’s injunction, among other reasons discussed below. They say that if the appropriated funds for Flint relief, which include other services, are redirected solely to comply with the Court’s order to deliver four cases of bottled water per week to every Flint resident, some of the broader relief efforts will be left without funding. That argument is based, in turn, on the defendants’ continued but disingenuous assertion that the cost of door-to-door water delivery carries a monthly cost of $10.5 million. The State defendants’ forceful but aimless language on this point is undermined by the evidence they themselves have offered to the Court, both at the evidentiary hearing and in support of this stay motion.
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The $10.5 million figure is a chimera. According to Captain Kelenske, it is based on the idea that between 30,000 and 34,000 homes rely on the Flint water system, and five cases of water would be delivered to each one of them every week. But Captain Kelenske also testified that under his watch, every Flint home has been visited and his operation has verified that 96% of the homes have water filters. The remaining 1,000 to 1,500 homes that are on the water system but have not been verified as having a water filter may be because some of those homes are unoccupied. Captain Kelenske did not say that all of the households with water filters have them properly installed and maintained. But according to the State defendants’ witness, George Krisztian, the cost of verifying that faucet water filters are installed and maintained properly is $955,971. Moreover, how compliance with the injunction might affect other state-funded projects in Flint is in the State defendants’ hands. Because State defendants substantially can control the costs of compliance, and can fund those costs from the state treasury, the order does not necessarily require displacing any existing or planned projects.
The defendants also insist that delivering massive amounts of bottled water to each Flint resident will slow the recovery of Flint’s water system by significantly decreasing the amount of water moving through the Flint water system delivery lines. There is no factual support for that assertion, and it defies common sense. Even where no effective filter is in place, faucet uses that bottled water delivery may displace constitute only a small fraction of household water use. According to the EPA, an average family of four uses 400 gallons of water per day, or 2800 gallons per week. Approximately 70% of that water usage is used indoors. The indoor water usage is 26.7% toilet, 21.7% clothes washing, 16.8% shower, 15.7% faucet, 13.7% leaks, and 5.3% other.
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Faucet usage includes washing hands and dishes, as well as drinking water and water for cooking. https://www3.epa.gov/watersense/pubs/indoor.html (last visited December 2, 2016).
The State defendants argue that the Court’s order is contrary to the public interest because water needs to move through the water pipes in order to reform the scale that prevents lead from leaching into the water. The argument goes that any water delivered to Flint residents would offset the amount of water that moves through the water system therefore slowing the reformation of the orthophosphate scale. This argument is specious, because the amount of water displaced by bottled water use is negligible.
Moreover, Flint residents are already offsetting the amount of water moving through the water system by consuming large amounts of bottled water. And, as noted above in several places, the Court’s order does not call for bottled water delivery to every house. It calls for water filters to be installed and properly maintained, which in turn would increase rather than decrease the amount of water moving through the water system. Finally, even if the State decided to ignore the water filters and instead deliver bottled water to every house in Flint, the amount of water offset would be very small — about 1.7% of usage for a family of four. And in any case, the defendants can address this issue by installing and maintaining filters, which should result in no water use reduction.
The State defendants also argue that complying with the Court’s order could add an additional 4.7 million plastic bottles to Flint’s recycling system each week. That argument assumes, however, that (1) door-to-door bottled delivery would be provided to every Flint residence — a premise that is simply false; and (2) delivery of bottled water would have an effect on the amount of bottled water usage, compared to the present system of requiring residents to fetch the cases of bottled water from distribution points. There is no evidence on this second point. If recycling empty
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water bottles is a municipal problem, it is one that already exists, because Flint residents know that it is not safe to drink unfiltered tap water. The purported recycling problem was caused by the damage wrought on the Flint water system infrastructure through the ill-advised decisions of appointed receivership officials. The Court’s injunction would have no effect on that score, and the argument impacts the public interest factor not at all.
Next, the State defendants argue that the scope of the Court’s door-to-door delivery has no known precedent. Perhaps, but there also is no precedent for the systemic infrastructure damage to a water delivery system caused by a public official’s decision to switch to a water source that is corrosive and the failure to “install and operate optimal corrosion control treatment.” 40 C.F.R. § 141.80(d)(1); see also 40 C.F.R. § 141.2 (“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. § 141.82(g) (“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.” The relief ordered is consistent with the EPA’s requirements in the LCR. The order builds on the existing water distribution mechanisms to provide a rough substitute for the essential service that municipal water systems must furnish, and mirrors what the EPA already requires of water systems that seek exemptions from the LCR. See 40 C.F.R. § 142.62(f)-(h).
D. The Lead and Copper Rule is intended to“provide maximum human health protection by reducing the lead and copper levels at consumers’ taps to as close to the MCLG as is feasible.”
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Maximum Contaminant Level Goals and National Primary Drinking Water Regulations for Lead and Copper, 56 Fed. Reg. 26460-01 (June 7, 1991). Because, according to the State defendants’ witnesses, unfiltered tap water delivered to water customers of the Flint water system is not safe to drink, the public interest is not served by staying the injunction designed to ensure that each water user has an operational tap water filter, or that there is a suitable alternative for the delivery of safe drinking water at the point of use.
II. The factors set out in Michigan State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 661 (6th Cir. 2016), do not favor staying the Court’s preliminary injunction. Accordingly, it is ORDERED that the motion to stay the injunction pending appeal [dkt. #97] is DENIED.
s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: December 2, 2016
PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on December 2, 2016.
s/Susan Pinkowski SUSAN PINKOWSKI
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 Case: 16-2628 Document: 34-1 Filed: 12/16/2016 Page: 1

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: December 16, 2016

Mr. Frederick A. Berg Jr. Butzel Long 150 W. Jefferson Avenue, Suite 100 Detroit, MI 48226
Mr. Joshua Otho Booth Mr. Nathan A. Gambill Mr. Richard S. Kuhl Mr. Michael F. Murphy Office of the Attorney General of Michigan P.O. Box 30754 Lansing, MI 48909
Ms. Dimple Chaudhary Mr. Jared E. Knicley Natural Resources Defense Council 1350 New York Avenue, N.W., Suite 300 Washington, DC 20005
Ms. Stacy L. Erwin Oakes Mr. William Young Kim City of Flint, 1101 S. Saginaw Street, Room 307 Flint, MI 48502
Mr. Sheldon H. Klein Butzel Long 41000 Woodward Avenue, Stoneridge West Bloomfield Hills, MI 48304
Mr. Glenn Michael Simmington 503 S. Saginaw Street, Suite 1000 Flint, MI 48502

Case: 16-2628 Document: 34-1 Filed: 12/16/2016 Page: 2

Mr. Michael Jay Steinberg American Civil Liberties Union Of Michigan 2966 Woodward Avenue Detroit, MI 48201
Ms. Sarah C. Tallman Natural Resources Defense Council 20 N. Wacker Drive, Suite 1600 Chicago, IL 60606
Mr. Michael E. Wall Natural Resources Defense Council 111 Sutter Street, 20th Floor San Francisco, CA 94104-0000
Re: Case No. 16-2628, Concerned Pastors, et al v. Nick Khouri, et al Originating Case No. : 2:16-cv-10277
Dear Counsel,
Enclosed is a copy of an order filed today designated for full-text publication in the abovestyled case.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. David J. Weaver Enclosure

Cathryn Lovely Opinions Deputy

Case: 16-2628 Document: 34-2 Filed: 12/16/2016 Page: 1

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0292p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

CONCERNED PASTORS FOR SOCIAL ACTION, et al.,

┐

v.

Plaintiffs-Appellees,

│
││>

│

│

NICK KHOURI, et al.,

│

Defendants-Appellants. │ ┘

No. 16-2628

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cv-10277—David M. Lawson, District Judge.

Decided and Filed: December 16, 2016

Before: KEITH, SUTTON, and DONALD, Circuit Judges.

The court delivered a PER CURIAM order. SUTTON, J. (pp. 5–13), delivered a separate dissenting opinion.
_________________

ORDER _________________

The Treasurer of the State of Michigan and the members of the Flint Receivership Transition Advisory Board (jointly referred to as the “State Defendants”) appeal a preliminary injunction requiring, among other things, the delivery of bottled water to non-exempt households served by the Flint water system. They move to stay the injunction pending appeal. Flint responds in support of the motion for a stay. The Plaintiffs oppose the motion to stay. The State Defendants filed a reply in support of their motion. The district court denied a stay pending appeal on December 2, 2016.

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As a preliminary matter, we grant the parties’ motions to exceed the page limitations of Federal Rule of Appellate Procedure 27(d)(2). The Plaintiffs’ motion to strike is granted because the State Defendants’ reply brief raises an argument that was not raised in the motion for a stay, thus obviating the Plaintiff’s need to file a sur-reply.
As the movants, the State Defendants “bear[] the burden of showing that the circumstances justify” the exercise of discretion to grant a stay of the preliminary injunction pending appeal. Nken v. Holder, 556 U.S. 418, 433–34 (2009). Four factors guide the court’s consideration of the motion for a stay: (1) whether the State Defendants have a likelihood of success on the merits; (2) whether they will suffer irreparable harm in the absence of a stay; (3) whether the requested injunctive relief will substantially injure other interested parties; and (4) where the public interest lies. Id. at 434; see also Ohio St. Conference of N.A.A.C.P. v. Husted, 769 F.3d 385, 387 (6th Cir. 2014); Serv. Emps. Int’l Union Local 1 v. Husted, 698 F.3d 341, 343 (6th Cir. 2012). These four factors “are not prerequisites that must be met, but interrelated considerations that must be balanced.” In re EPA, 803 F.3d 804, 806 (6th Cir. 2015).
The State Defendants’ argument that the injunction is overbroad and lacks evidentiary support is based on the erroneous belief that the central component of the injunctive relief is the door-to-door delivery of bottled water. This is not the case. For homes that have properly installed water filters, bottled delivery is not ordered. It is only ordered for homes where there is no proper filter in place. For many without a proper filter, as the testimony demonstrates, obtaining drinking water is inaccessible due in part to the limited hours of the points of distribution and transportation issues. The likelihood of success on the merits is slim.
Furthermore, the State Defendants’ disingenuous claim that the daily delivery of bottled water would be at an expense of $10.5 million a month, is not supported by the record. According to Michigan State Police Captain Christopher Kelenske, the $10.5 million figure is based on the idea that five cases of water would have to be delivered to anywhere from 30,000 and 34,000 homes in Flint each week, based on the number of homes that rely on the Flint water system. However, Captain Kelenske also testified that under his watch every home in Flint has been visited and 96% of homes have new water filters, and the remaining 1,000 to 1,500 homes may include some homes that are unoccupied. According to the State Defendants, the cost of

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verifying the proper installation and maintenance of water filters is $955,971. The cost of verifying and maintaining water filters and delivering bottled water to residents that are not part of the allegedly 96% of homes that already have a functioning water filter is nowhere near $10.5 million. Additionally, there is still $100 million left of the $212 million that Michigan allocated to respond to the Flint water crisis. Therefore, the State Defendants will not suffer irreparable harm in the absence of a stay.
Flint residents continue to suffer irreparable harm from the lack of reliable access to safe drinking water. Many residents who rely on filters that are improperly installed continue to be at risk of exposure to lead. Compliance with the order only requires that the State Defendants deliver bottled water to homes until they ensure that a home has a properly installed and maintained water filter, or if the residents opt-out of the delivery service.
It is important to remember that there are still people in Flint that do not have access to safe drinking water. In the absence of this injunction, it is unclear how the State Defendants plan to ensure that every resident in Flint has safe drinking water. The State Defendants’ contend that delivering bottled water to Flint residents will slow down the recovery of Flint’s water system by significantly decreasing the amount of water moving through the Flint water system delivery lines. First, even where no effective water filter is in place, bottled water delivery would only replace a small fraction of household water use. According to the EPA, an average family of four uses 400 gallons of water per day, 70% of which is indoor usage that includes 26.7% toilet, 21.7% clothes washing, 16.8% shower, 15.6% faucet, 13.7% leaks, and $5.3% other. https://www3.epa.gov/watersense/pubs/indoor.html (last visited December 2, 2016).
Second, it cannot be overstated that it is an immediate requirement, under the Safe Drinking Water Act’s (SDWA) Lead and Copper Rule that the State Defendants’ provide safe drinking water to all residents of Flint. Although there may be no known precedent for the doorto-door delivery of bottled water, there is also no precedent for the systematic infrastructure damage to a water delivery system that has caused thousands of people to be exposed to poisonous water. The injunction is in place to ensure that those people have access to clean water. The injunction is tailored to the specific systemic harms found and is appropriate in scope. For those reasons, the stay of the preliminary injunction must be denied.

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The State Defendants have not demonstrated a strong likelihood of success on their challenges to the findings that the Flint water system is not in compliance with various regulations promulgated under the SDWA. Nor have they shown that portions of the preliminary injunction, including the provisions requiring the delivery of bottled water to non-exempt households, are overbroad. Further, a stay does not support the public interest because the SDWA has already established that the provision of safe drinking water is an important public interest.
The motions to exceed the page limitations are GRANTED; the Plaintiffs’ motion to strike is GRANTED. The State Defendants’ motion to stay the preliminary injunction pending appeal is DENIED.

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_________________
DISSENT _________________
SUTTON, Circuit Judge, dissenting. I can appreciate why the district court would be tempted to order daily deliveries of bottled water to thousands of residents of Flint, Michigan, at an estimated expense of $10.5 million a month. And I can appreciate why my colleagues would be tempted to leave that order in place. State and City officials endangered the health of many Flint residents by failing to monitor and limit the lead levels in the water supply. And after the problem was identified in December 2015, it took some time for those same officials to acknowledge their mistakes. Perhaps in that sense, it looks like these government officials had it coming to them—that they earned the costs and logistical challenges now imposed on them by the district court.
But I fear that the district court’s unusual preliminary injunction will do more harm than good for the people of Flint and delay rather than expedite a solution to this problem. I have two key concerns: It’s not clear that Flint’s water violates federal law at this point and, even if it does, the order expedites the wrong thing by forcing government officials to prioritize weekly deliveries of bottled water over ensuring that the new filters provided to 96% of Flint residents work.
In the absence of a predicate finding of an ongoing violation of federal law, the district court ordered government officials to make the daily deliveries of bottled water until they could ensure that each filter worked. That is no small task in a city of 100,000 people. That means the door-to-door bottled-water deliveries must begin immediately with all of the monetary and logistical challenges associated with them (to say nothing of water-bottle-freezing temperatures), and continue until government officials prove each home has a working filter. Perhaps there might have been something to such an order a year ago, when the problem was first discovered. But at this point the City already guarantees water delivery for disabled and elderly residents, permits other residents to call a 211 hotline if they need water deliveries, and has nine sites around the city where residents can pick up all of the bottled water they need. At this point, in

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other words, the plaintiffs and defendants alike should focus on measuring current water quality and ensuring that each filter works. But that most assuredly will not happen in the face of this order, as the government officials point out and as no one (including the district court and my colleagues) can reasonably dispute given the logistical challenges of the court’s order.
The court had other measured options at its disposal. Why not first order new tests of the current quality of the water to determine whether there is an ongoing violation of federal law? If the plaintiffs establish any ongoing violations, why not enter an order designed to fix those violations and ensure working filters, and then and only then threaten responsible officials with a requirement of bottled-water deliveries for all if the officials could not fix any problems within a reasonable period of time. That would have been a fair and proportionate way to focus everyone’s attention. But the immediate, extensive, and costly requirements of this order run the serious risk of undermining its goal. For these reasons and those elaborated below, I would grant the stay and urge the district court to recalibrate its order to focus on testing and monitoring current water-quality levels and, if they remain wanting, prioritize efforts to ensure that the filters in each home are working.
I.
The people of Flint have been through a rough patch. In November 2011, Governor Rick Snyder placed the City in state-controlled receivership after declaring a financial emergency. At the time, the City received its water from the Detroit Water and Sewerage Department, the source of which is the Detroit River and Lake Huron. The City Council voted in March 2013 to save money by joining the Karegondi Water Authority, a newly formed water supply system that was not yet up and running. The Emergency Manager and the State Treasurer signed off on the contract with the Karegondi Water Authority. The Emergency Manager rejected Detroit’s offer to renegotiate interim rates, and the City decided to take its water from the Flint River in the meantime.
That did not work. Flint had not treated the Detroit water for decades, and it neglected to add critical chemicals to the highly corrosive Flint River water, including orthophosphates, which “coat the pipes so that the water is not in direct contact with the metals to prevent the

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leaching of those metals into the water.” R. 86 at 215. The mistake ruined the water delivered to Flint residents. The tap water became discolored, smelled foul, and worst of all was dangerous to drink. By early 2015, the City, State, and EPA learned of high amounts of lead in the water. Data collected by Virginia Tech researchers showed that more than 10% of water samples in August 2015 contained more than 25 parts per billion of lead, well above the EPA action level of 15 ppb for the 90th percentile. 40 C.F.R. § 141.80(c)(1).
Flint switched its water source. It returned to the Detroit Water Department and began adding phosphates in December 2015 to repair the damaged chemical shield separating the lead from the water. Flint’s mayor declared a state of emergency. On January 5, 2016, Governor Snyder declared a state of emergency and activated the National Guard.
By April 2016, the National Guard, the American Red Cross, and state and local emergency response teams had visited 21,291 homes and over 5,000 apartments in Flint, and had distributed 84,505 water filters, 195,264 filter cartridges, 153,005 cases of water, and 24,866 water test kits. The State and City established points of distribution at fire stations and churches where anyone could pick up filters, filter cartridges, bottled water, and test kits. Emergency response personnel eventually visited every residence in Flint, distributing at least one filter to everyone who was home and leaving a card with information about the 211 hotline at the rest. Anyone who calls the 211 hotline receives a one-time delivery of water and water filtration supplies. For anyone who is elderly, disabled, or otherwise unable to reach one of the nine points of distribution on a regular basis, the State adds the individual to the functional needs list and regularly delivers that person the bottled water they need. By mid-September 2016, the State and City had distributed 2.7 million cases of water (over 32 million liters), 136,000 filters (more than one for each of Flint’s roughly 100,000 residents), 297,000 filter cartridges, and 54,492 water test kits.
Plaintiffs filed this lawsuit on January 27, 2016, one of dozens of lawsuits filed in response to the Flint water crisis. The plaintiffs in this case waited several months before requesting a preliminary injunction. The district court held a hearing in mid-September and issued a preliminary injunction on November 10, 2016. The crux of the district court’s order is that the State and City “must confirm the number of residents in each household” in Flint “and

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provide each household with four cases of bottled water per week per resident.” R. 96 at 36. The only households exempt from the order are those that affirmatively opt out, that are permanently unoccupied, that refuse free faucet filter installation, or that the government ensures have a properly maintained and working filter. The last exemption is the key one at issue. The district court gave the State and City until December 16, 2016, to comply.
II.
The standard for granting a stay pending appeal is a familiar one. We look at four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 426 (2009) (quotation omitted).
Likelihood of success on the merits. The legal underpinning of this lawsuit is the federal Safe Drinking Water Act and some regulations that the EPA has promulgated under it. The Act regulates “suppliers of water,” defined as “any person who owns or operates a public water system.” 42 U.S.C. § 300f(5). According to the record, the State, after placing Flint in receivership, began to “manage, direct, or conduct operations specifically related to” Flint’s water safety. United States v. Bestfoods, 524 U.S. 51, 66 (1998). The State defendants had broad authority over the City’s operations, see Mich. Comp. Laws. § 141.1549, and they apparently became responsible for switching the City’s water source from the Detroit water authorities to the Flint River. The key regulation is known as the Lead and Copper Rule. It requires Flint to have “optimal corrosion control treatment” for its water system: Namely, 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. The EPA’s action level for lead is triggered when the amount of lead in the 90th percentile of water samples is at or above 15 ppb lead. 40 C.F.R. § 141.80(c)(1).

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In its preliminary injunction decision, the district court claimed that two ongoing violations of the Safe Drinking Water Act justified relief: (1) a lack of optimal corrosion control, and (2) a failure to monitor lead levels properly.
Absence of evidence of an ongoing legal violation. The first source of legal authority for the injunction no longer exists. When it issued the preliminary injunction, the district court thought that Flint water was above the action level for lead and thought that this measurement amounted to a per se violation of the Act. R. 96 at 8. That is not the case. Exceeding the EPAset action level is not necessarily a violation of the Act. See 40 C.F.R. § 141.81(b), (d). To its credit, the district court acknowledged its mistaken belief that 15 ppb was the maximum contaminant level for lead in its order denying a stay. 56 Fed. Reg. at 26,477. This consideration in other words no longer justifies the order. No less importantly, the most recent sampling data shows that “[i]t is likely” that Flint is now “meeting the lead action level.” A.R. 24 at 7.
The EPA’s monitoring requirement also cannot justify the injunction. The regulations require testing every six months at pre-designated high-risk sampling sites until the results fall below the action level for two six month periods. 40 C.F.R. § 141.86(a), (d). The district court thought the State was not in compliance with the monitoring requirements, possibly because Virginia Tech’s data included sample sites that were not high risk. But the State has clarified the picture since then. Although it collects data from a larger sampling pool for its own purposes, its sampling also includes 120 high-risk sites, more than the 60 required by the Lead and Copper Rule for a city serving fewer than 1000,000 people and more than the 100 required for larger cities. Id. § 141.86(c). And the data from the high-risk sites suggests that the lead levels dropped below the action level even before the district court issued its order. As long as the State separates this data from the broader sampling pool, which it has been doing and will continue to do, it has complied with the monitoring requirements.
On this record, the State is in compliance with the Safe Drinking Water Act and the EPA’s regulations. Until the plaintiffs can show an ongoing violation of these or other laws, the court has no basis for issuing injunctive relief.

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Absence of tailoring in connecting the injunction to alleged violations. Even if that were not the case, the State still would prevail in all probability. Let’s assume for the sake of argument that the legal premises of the district court’s decision had been correct—that the State was still violating the Lead and Copper Rule’s corrosion control treatment and monitoring requirements. If so, that would have given the court authority to issue an order designed to remedy those violations. Yet in ordering door-to-door water delivery and filter installation, it said not a word about monitoring or sampling methods. A district court abuses its discretion where it fails to “fashion[] injunctive relief tailored to the identified harm.” Northeast Ohio Coal. for Homeless v. Husted, 696 F.3d 580, 599 (6th Cir. 2012) (per curiam). The preliminary injunction was not “crafted . . . to the specific violations”: the corrosion control shortcomings and the failure to sample high-risk sites. Howe v. City of Akron, 801 F.3d 718, 753 (6th Cir. 2015). Before the district court “injected itself by injunctive decree” into these recovery efforts, it had a duty to ensure that its wide-ranging injunction would remedy ongoing violations of federal laws. Rizzo v. Goode, 423 U.S. 362, 380 (1976).
Absence of proportionality in remedy. There is one other problem with the order. To illustrate this defect, let’s now assume two things: that (1) the City and State are still violating these federal laws and (2) the district court mentioned these violations in its preliminary injunction order. Even then, it’s difficult to see how such a broad order could be upheld on appeal. The door-to-door water delivery operation will cost at least $10.5 million per month, the cost of delivering bottled water to the 30,000 to 34,000 residences in Flint. The State bears most of the costs for the delivery on the front end: It must hire or train the large number of drivers needed to drive the trucks around town; and it must find warehouse capacity for 11.3 million liters of water. The logistical challenge of delivering water to every residence in Flint, not the act of purchasing water bottles alone, makes door-to-door delivery unreasonable on this record and indeed contrary to the best practices recommended by FEMA, an agency that knows a thing or two about emergency relief. See R. 86 at 310.
These costs come on top of the hundred million dollars the State has already spent in response to the crisis and the many changes it has already made. The government has set up 9 points of distribution, one in each ward, in addition to supplying at least 42 faith-based groups

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with water, filters, and supplies for distribution. The State and City have verified that 96% of homes (some were unoccupied at the time) have water filters. And any Flint resident can receive water by dialing 211. The functional needs program, operated out of a centralized warehouse that is too small to accommodate the district court’s order, ensures that about 1,250 homebound households receive the water they need. The preliminary injunction would essentially expand the functional needs program to cover an additional 30,000 households—what amounts to a 24fold increase in the size of the operation.
In denying the State’s request for a stay of its decision, the district court thought these costs were a mere “chimera,” R. 108 at 9, because 96% of Flint residents already have water filters. But the order requires weekly door-to-door water deliveries until the State and City ensure that all of the water filters are working—all while the government spends $10.5 million a month to make the deliveries. The preliminary injunction in other words forces the State to rely on the filter exemption for mandated door-to-door delivery. And to use the filter exemption, the State must “verify that a qualifying faucet water filter is installed and properly maintained.” R. 96 at 35. Though the government has already verified that 96% of homes have filters, it must now “inspect each filter to ensure the filter and cartridge have been maintained properly and are functioning.” Id. Even if Michigan spends $955,971 monthly to inspect every residence in Flint (and that’s just how much it would have to spend on State employees, operators, and vehicles), the State will have to spend $10.5 million per month, or some roughly comparable amount, on the door-to-door operation for the first several months until it can finish exempting residences. It took three months to visit every house in early 2016, even after Governor Snyder activated the National Guard. Left as is, the preliminary injunction is apt to bring recovery efforts to a dead stop as the State and City divert resources to comply with it.
In this context, I cannot understand two aspects of my colleagues’ position: (1) that the State has an “erroneous belief that the central component of the injunctive relief is the door-todoor delivery of bottled water” and (2) that the State raises a “disingenuous claim” that the delivery of bottled water will cost an estimated $10.5 million a month. As to the first point, the majority later in its opinion accepts the State’s straightforward interpretation of the order: “Compliance with the order only requires that the State Defendants deliver bottled water to

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homes until they ensure that a home has a properly installed and maintained water filter.” A lot is being asked of the word “only.” But that word cannot change what the November 10 order requires: door-to-door water bottle delivery to the 30,000 to 34,000 homes in Flint until the State confirms that the exemption applies. Neither the plaintiffs nor the majority nor the district court denies that it will take roughly $1 million and several months to determine which water filters work and which do not. Until then, the “central component” of the order will indeed be water bottle deliveries to each house. As to the second point, the source of the State’s estimate is straightforward. There are 30,000 to 34,000 residences in Flint and a total population of around 100,000. The $10.5 million cost estimate per month turns on the estimated cost of delivering bottled water to that number of residences and the estimated number of individuals in each residence. That amount will of course diminish over time as the State confirms which filters work and which need to be fixed. But I cannot understand how the estimate is flawed as to the initial requirement of the preliminary injunction or how costs will not run in the many millions of dollars for two to three months. Notably, neither the plaintiffs nor the district court nor my colleagues offer a cost estimate of their own. I should have thought a prerequisite of any preliminary injunction imposed on a State or local government would be a finding by the court as to what it will cost.
The likelihood-of-success factor strongly weighs in favor of a stay.
Irreparable injury. There is little room for debate that the preliminary injunction creates one-and-done injuries to the State and City—an estimated $10.5 million a month and redeployment of workers toward short-term water delivery and away from long-term solutions. These non-recoverable losses of money, time, and resources strongly favor a stay.
Injury to interested parties. What matters to the plaintiff organizations and their members is that the State and City comply with federal law, reduce the amount of lead in Flint’s water, improve sampling methods, and return the community to safe sources of drinking water. There are many reasons why the order does not serve these essential goals: It is not connected to ongoing violations of federal law; it does nothing to speed the gradual recoating of the pipes; it does nothing to improve monitoring; and above all its short-term focus on water deliveries will divert resources, time, and money from fixing what Flint needs fixing most: non-functioning or

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improperly installed water filters. Notably, the record is barren of any proof of any instance in which any plaintiff (or any other organization) has identified a resident whom the State and City will not provide with water or filters. So too of residents with non-working filters: The record contains no evidence of anyone with such a filter who has asked for a repair and been denied. One caveat confirms the point: The State and City cannot do anything about organizations, such as Crossing Water, who claim such people exist but who will not identify them. This factor favors a stay.
Public interest. Because the State requests a stay, this inquiry merges into the other factors, with concern focused on how the district court’s order will affect the people of Michigan. Cf. Slyusar v. Holder, 740 F.3d 1068, 1074 (6th Cir. 2014). An order unconnected to ongoing violations of federal law that prioritizes the wrong remedies—at a cost of $10.5 million a month—will do more harm than good for the community.
* * *
A dissent from an order upholding a district court’s decision, I recognize, is not a likely place for a district court to look for advice. But, by all appearances, this case could benefit from a little more conversation between the parties and court. Everyone has the same interests in mind: delivery of safe water. Do the plaintiffs really want the State’s and City’s limited resources focused on immediate door-to-door delivery now as opposed to using that measure as a last resort if the defendants cannot ensure that the filters are working in, say, two or three months? And if the district court identifies ongoing violations of federal law, would the State and City really oppose door-to-door delivery as a backstop after they have been given a reasonable amount of time to identify which filters work and which do not? Reasonable people can disagree about a lot of things, but I wonder if this is one of them.
For these reasons, I respectfully dissent.
ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

 
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SETTLEMENT AGREEMENT

2:16-cv-10277-DML-SDD Doc # 147-1 Filed 03/27/17 Pg 2 of 92 Pg ID 7350
TABLE OF CONTENTS RECITALS ................................................................................................................. 1 I. Definitions .......................................................................................................4 II. Duration .........................................................................................................11 III. Compliance ....................................................................................................11 IV. Service Line Replacement .............................................................................13
A. Replacement of Service Line; Replacement Eligible Households .....13 B. Timeline and Milestones .....................................................................18 C. Funding................................................................................................19 D. Process.................................................................................................28 E. Faucet Filter Maintenance after Service Line Replacement ...............29 F. Monitoring in Connection with Service Line Replacements ..............30 G. Completion of Service Line Replacement ..........................................32 V. Tap Water Monitoring ...................................................................................32 A. Tap Water Monitoring During Consecutive 6-month Periods............32 B. Independent Monitoring Program .......................................................33 C. Sample Collection ...............................................................................36 D. Voluntary Residential Monitoring ......................................................37 E. Notification of Tap Water Monitoring Results ...................................38 VI. Filter Installation, Maintenance, and Education............................................39
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A. CORE Staff..........................................................................................39 B. Initial Visits .........................................................................................40 C. Follow-Up Visits .................................................................................47 D. Opt-out Option for Eligible Households .............................................50 E. New Flint Water System Customers ...................................................51 F. Appointment for CORE Team Visits..................................................51 G. Priority CORE Team Visits.................................................................52 H. Publicity for CORE Program ..............................................................52 VII. Bottled Water Distribution ............................................................................54 A. Community Water Resources Sites.....................................................54 B. 2-1-1 Services......................................................................................57 C. Access and Functional Needs List ......................................................58 VIII. Health Programs ............................................................................................59 IX. Release of Liability........................................................................................60 X. Reporting and Disclosures.............................................................................63 XI. Notices ...........................................................................................................69 XII. Attorney Fees and Costs ................................................................................70 XIII. Dispute Resolution and Judicial Enforcement ..............................................71 XIV. Force Majeure ................................................................................................72 XV. Modification ..................................................................................................74
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XVI. Dismissal and Waiver of Appeal ...................................................................75 XVII. Signatories and Counterparts.........................................................................76 XVIII. Integration Clause ........................................................................................76
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SETTLEMENT AGREEMENT This Settlement Agreement is entered into, by, and between Plaintiffs Concerned Pastors for Social Action, Melissa Mays, Natural Resources Defense Council, Inc., and American Civil Liberties Union of Michigan; Defendants Nick A. Khouri, in his official capacity as Treasurer for the State of Michigan; Frederick Headen, in his official capacity as a Member of the Flint Receivership Transition Advisory Board; Michael Finney, in his official capacity as a Member of the Flint Receivership Transition Advisory Board; Mike Townsend, in his official capacity as a Member of the Flint Receivership Transition Advisory Board; Joel Ferguson, in his official capacity as a Member of the Flint Receivership Transition Advisory Board; the City of Flint; and Sylvester Jones, in his official capacity as City Administrator for the City of Flint; and third parties Michigan Department of Environmental Quality and the State of Michigan, hereafter referred to individually as “Party” and collectively as “Parties.”
RECITALS WHEREAS, on January 27, 2016, Plaintiffs filed a Complaint in the U.S. District Court for the Eastern District of Michigan, entitled Concerned Pastors for Social Action, et al. v. Khouri, et al., Case No. 2:16-cv-10277. The Complaint, ECF No. 1, seeks declaratory and injunctive relief under the citizen-suit provision of the Safe Drinking Water Act, 42 U.S.C. § 300j-8(a);
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WHEREAS, Plaintiffs alleged in their Complaint that the Flint Water System is in violation of the Lead and Copper Rule’s requirements for corrosion control treatment, tap water monitoring, notification, and reporting, Compl. ¶¶ 16875; and that each named Defendant is liable for the alleged violations of the Lead and Copper Rule as an owner and/or operator of the Flint Water System within the meaning of the Safe Drinking Water Act, Compl. ¶¶ 29-30;
WHEREAS, Defendants answered Plaintiffs’ Complaint, denied liability, and denied that any violation of the Lead and Copper Rule has taken or continues to take place; and Defendants Michigan State Treasurer and Members of the Flint Receivership Transition Advisory Board denied they were operators of the Flint Water System within the meaning of the Safe Drinking Water Act, see ECF Nos. 65, 69;
WHEREAS, on November 10, 2016, the Court issued an opinion and order granting Plaintiffs’ motion for a preliminary injunction, ECF No. 96;
WHEREAS, on November 21, 2016, State Defendants filed a notice of appeal from the order granting a preliminary injunction, ECF No. 99;
WHEREAS, on December 13, 2016, State Defendants filed a motion to dissolve the preliminary injunction, ECF No. 110, and on December 20, 2016, Plaintiffs filed a motion to enforce the preliminary injunction, ECF No. 116;
WHEREAS, on December 19, 2016, counsel for Governor Rick Snyder
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wrote to the Court requesting the appointment of a mediator to facilitate resolution of the Case;
WHEREAS, on December 28, 2016, the Court appointed a mediator to facilitate settlement discussions among the Parties to this Agreement, ECF No. 122, and the Parties have since engaged in arm’s-length settlement discussions;
WHEREAS, all Parties agree that replacing all lead and galvanized steel water service lines in the City of Flint with copper water service lines will help reduce lead contamination in the City’s drinking water;
WHEREAS, the Parties have agreed to resolve this Case on the terms set forth in this Agreement without admission of any issue of fact or law;
WHEREAS, the Parties’ entry into this Agreement is contingent upon the Court’s incorporation of the Agreement into a judicial order over which the Court will retain jurisdiction to enforce the Agreement’s terms;
WHEREAS, the third parties, the State of Michigan and the Michigan Department of Environmental Quality, enter into this Agreement for the sole purpose of aiding the Defendants in resolving this Case, and do not waive their Eleventh Amendment immunity to the Court’s jurisdiction except as explicitly indicated herein;
WHEREAS, the State Defendants have been named as Defendants in the Case in their official government capacities, and the State Defendants are relying
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on the State of Michigan, Michigan Department of Environmental Quality, and the City to provide the relief described in this Agreement;
WHEREAS, the Parties agree that resolution of this Case without the delay, expense, risk, and uncertainties of further litigation, including trials and appeals, is in the best interest of the Parties, the public, and judicial economy;
WHEREAS, after the voluntary exchange of information, the Parties consider this Agreement to be a fair, reasonable, and equitable resolution of all claims in this Case;
BASED ON THE FOREGOING RECITALS AND THE TERMS AND CONDITIONS STATED HEREIN, the Parties agree as follows: I. Definitions
1. Unless otherwise expressly defined in this Agreement, terms used in this Agreement that are defined in the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq., or in regulations promulgated under the Safe Drinking Water Act, shall have the meaning assigned to them in the statute or the U.S. Environmental Protection Agency (EPA) regulations thereunder.
2. Whenever the terms listed below are used in this Agreement, the following definitions apply:
a. “active water account” means any account registered with the City through which the City legally provides drinking water at
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the address associated with that account. A water account is “active” regardless of whether the account owner’s payments are up to date or past due; b. “Agreement” means this Settlement Agreement and any attachments or exhibits expressly incorporated by reference into this Settlement Agreement; c. “Case” means Concerned Pastors for Social Action, et al. v. Nick A. Khouri, et al., No. 2:16-cv-10277 (E.D. Mich. Jan. 27, 2016), and appeals arising out of that matter, including Case No. 16-2628 in the United States Court of Appeals for the Sixth Circuit; d. “City” means the City of Flint, Michigan; e. “City Defendants” means the City of Flint, and Sylvester Jones, in his official capacity as City Administrator for the City of Flint; f. “Community Water Resources Site” means one of nine points of distribution (PODs) where the State of Michigan presently makes bottled water, faucet filters, faucet filter cartridges, and household tap water testing kits available free of charge to Flint residents;
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g. “Completion of Service Line Replacement” means the date the City of Flint materially completes its obligations under Paragraphs 8-20, 28-30, 33, and 38 of this Agreement;
h. “Day” means a calendar day. In computing any period of time under this Agreement, where the last day would fall on a Saturday, Sunday, or State of Michigan or federal holiday, the period shall run until the close of business of the next working day;
i. “Defendants” means Nick A. Khouri, in his official capacity as Treasurer for the State of Michigan; Frederick Headen, in his official capacity as a Member of the Flint Receivership Transition Advisory Board; Michael Finney, in his official capacity as a Member of the Flint Receivership Transition Advisory Board; Mike Townsend, in his official capacity as a Member of the Flint Receivership Transition Advisory Board; Joel Ferguson, in his official capacity as a Member of the Flint Receivership Transition Advisory Board; the City of Flint; and Sylvester Jones, in his official capacity as City Administrator for the City of Flint;
j. “Effective Date” of this Agreement means the date the U.S.
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District Court enters an order incorporating the terms of this Agreement, retaining jurisdiction to enforce this Agreement, and dismissing the Case with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2); k. “EPA Order” means the Emergency Administrative Order dated January 21, 2016, amended on November 17, 2016, In re: City of Flint, Michigan; Michigan Department of Environmental Quality; and the State of Michigan, incorporated by reference in this Agreement and attached as Exhibits A and B; l. “excavations” means digging a hole or channel through a method approved by the City at the location of a curb stop and box and exposing several inches of the service line in each direction, for the purpose of identifying the material of a buried service line; m. “Faucet Filter” means a point-of-use faucet-mounted filter certified by the National Sanitation Foundation to remove lead up to 150 ppb, such as the Brita faucet filter, model SAFF-100, or a PUR Faucet Mount, model number FM-3700B; n. “Flint Water System” means the public water system owned by the City of Flint, Michigan;
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2:16-cv-10277-DML-SDD Doc # 147-1 Filed 03/27/17 Pg 12 of 92 Pg ID 7360
o. “Government Parties” means Defendants, the State of Michigan, and the Michigan Department of Environmental Quality, collectively;
p. “household” means a dwelling unit with plumbing that connects to the Flint Water System;
q. “Lead Action Level” means the applicable “action level” for lead in the Michigan Administrative Code, as promulgated pursuant to the Michigan Safe Drinking Water Act, 1976 PA 399. As of the Effective Date, the lead action level is identified in Michigan Administrative Code Section R 325.10604f;
r. “Lead and Copper Rule” means the regulations set forth at 40 C.F.R. §§ 141.80 to .91;
s. “Paragraph” means a portion of this Agreement identified by a non-Roman numeral or a lowercase letter;
t. “Plaintiffs” means Concerned Pastors for Social Action, Melissa Mays, Natural Resources Defense Council, Inc., and American Civil Liberties Union of Michigan;
u. “property owner” means a person or entity who has legal authority to grant permission for excavation or service line replacement on a property beneath which all or part of a service
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line lies; v. “Reporting Period” means, for purposes of Section X, the
period of time between the due date of the last status report and the current status report, except that the first Reporting Period is the period of time between the Effective Date and the due date of the first status report; w. “resident” means a person eighteen years of age or older who resides in a household in Flint, Michigan; x. “Respondents to the EPA Order” or “Respondents” means the Michigan Department of Environmental Quality, the State of Michigan, and the City of Flint, collectively; y. “Section” means a portion of this Agreement identified by a capitalized Roman numeral or a capitalized letter; z. “service line” means a water pipe connecting household plumbing to the main distribution pipe running beneath the street; aa. “State Defendants” means Nick A. Khouri, in his official capacity as Treasurer for the State of Michigan; and Frederick Headen, Michael Finney, Mike Townsend, and Joel Ferguson in their official capacities as Members of the Flint Receivership
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Transition Advisory Board; bb. “State Matching Funds” means the $20,000,000 appropriated
by the State of Michigan that was required from the State in order to obtain the additional $100,000,000 of WIIN Monies for the City of Flint; cc. “State Parties” means State Defendants, the State of Michigan, and the Michigan Department of Environmental Quality, collectively; dd. “tap water testing kit” means a wide-mouth plastic bottle or bottles that allow for a flow rate during sample collection that is representative of the flow that a consumer may use to fill up a glass of water, attached to the Request for Water Analysis form and Sampling Instructions, attached as Exhibit C to this Agreement; ee. “Termination Date” of this Agreement means either the date on which Government Parties complete their obligations under Section VIII of this Agreement, or one year after Completion of Service Line Replacement, whichever occurs later; ff. “WIIN Monies” means the $100,000,000 authorized and appropriated by the U.S. Congress through section 2201(d)(1)
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of the Water Infrastructure Improvements for the Nation (WIIN) Act of 2016, Pub. Law No. 114-322, and section 196 of the Further Continuing and Security Assistance Appropriations Act, 2017, Pub. Law No. 114-254. WIIN Monies do not include any State Matching Funds appropriated by the State of Michigan related to the WIIN Act; and gg. “Year 3 Cutoff Date” means the date 16 months before the Year 3 milestone described in Paragraph 20.c. II. Duration 3. This Agreement shall remain in effect from the Effective Date until the Termination Date. No obligations under this Agreement shall continue after the Termination Date. III. Compliance 4. Respondents to the EPA Order will comply with the terms of the EPA Order subject to Paragraphs 6-7. 5. Plaintiffs may request in writing to meet and confer with Respondents to the EPA Order about whether the actions planned or taken to comply with the EPA Order will ensure compliance with the Lead and Copper Rule’s requirements set forth in 40 C.F.R. §§ 141.80, .81, .82, .85, .86, and .90. Within 30 days of receiving a request under this Paragraph, Respondents to the EPA Order will meet
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and confer with Plaintiffs and will consider in good faith any reasonable recommendations from Plaintiffs. Plaintiffs may not initiate the dispute resolution process described in Section XIII to address disputes about whether the actions planned or taken to comply with the EPA Order will ensure compliance with the Lead and Copper Rule’s requirements set forth in 40 C.F.R. §§ 141.80, .81, .82, .85, .86, and .90. Nothing in this Paragraph shall limit Plaintiffs’ ability to initiate the dispute resolution process to address disputes about whether actions planned or undertaken by Respondents to the EPA Order constitute compliance with the terms of the EPA Order as set forth in Paragraph 4.
6. In the event that the EPA Order is amended prior to the Termination Date, Respondents to the EPA Order shall comply with the terms of the EPA Order as amended, unless the amendment imposes obligations or restrictions on Respondents to the EPA Order that are materially less stringent than the terms of the EPA Order as it existed as of the Effective Date. If an amendment results in such materially less stringent obligations or restrictions, Respondents shall comply with the terms of the EPA Order as it existed as of the Effective Date, unless doing so would violate the amended EPA Order.
7. In the event that the EPA Order is dissolved, vacated, or otherwise loses its legal effect prior to the Termination Date, Respondents to the EPA Order shall continue to comply with the terms of the EPA Order as it existed as of the
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Effective Date, and as may be amended, subject to the requirements of Paragraph 6. IV. Service Line Replacement
A. Replacement of Service Lines; Replacement Eligible Households 8. The City shall replace lead and galvanized steel service lines at households served by the Flint Water System as described in this Section of the Agreement (Section IV). 9. The City shall conduct excavations to identify the material of the service line running from the main line to the curb box and from the curb box to the household water meter at a minimum of 18,000 households legally served by the Flint Water System. 10. For each replacement eligible household (as defined in Paragraph 11) at which the City conducts an excavation under Paragraph 9, if all or part of the service line from the main line to the household water meter is discovered to be lead or galvanized steel, the City shall replace the portion(s) of the service line that are lead or galvanized steel with a copper service line at no cost to the resident or the property owner, subject to Paragraphs 15 and 17. 11. Households eligible for service line replacement. For purposes of this Section (Section IV) only, a “replacement eligible household” is a household that has an active water account as of the Effective Date, irrespective of any water shut-
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offs that may occur after the Effective Date. 12. Replacement eligible households shall not include abandoned
households. A household is abandoned for purposes of this Agreement if it meets the definition of “Abandoned Property” set forth in section 24-109 of the Flint, Michigan Code of Ordinances, as of the Effective Date.
13. The City shall maintain a list of households it determines are abandoned and that would otherwise be eligible for service line replacement (“Abandoned Homes List”). If a resident activates a new water account at any time within 18 months of the Effective Date or prior to the Year 3 Cutoff Date, whichever is later, the City shall determine whether the address is on the Abandoned Homes List. If the address is on the Abandoned Homes list, the City shall undertake reasonable efforts to obtain permission from the account holder to replace the service line. Reasonable efforts shall include sending at least two written requests. If permission is granted, the City shall replace the service line at no cost to the new property owner within the timeline described in Paragraph 20.
14. New water account at formerly abandoned household. If a new water account is activated at an address on the Abandoned Homes List within 18 months of the Effective Date or prior to the Year 3 Cutoff Date, whichever is later, the City shall undertake reasonable efforts to obtain permission from the account holder to replace the service line. Reasonable efforts shall include sending at least two
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written requests. If permission is granted, the City shall replace the service line at no cost to the new property owner within the timeline described in Paragraph 20. If a new water account is activated more than 18 months after the Effective Date or after the Year 3 Cutoff Date, whichever is later, the City must send a written notice to the new account holder, informing the account holder that the household’s service line material was not verified during City-wide service line excavation and replacement in 2017 through 2020, and that the service line may contain lead or galvanized steel.
15. Efforts to obtain permission for replacement at eligible households. The City shall undertake reasonable efforts to contact property owners of properties upon which replacement eligible households are located to obtain permission to replace the portions of service lines that lie beneath private property. To the extent that the resident of a replacement eligible household is a different person from the property owner, and if access to the household is necessary to conduct excavation or replacement, then the City shall also undertake reasonable efforts to contact the resident to obtain permission to replace the service line.
a. For purposes of Paragraph 15, reasonable efforts shall include, for those replacement eligible households at which an initial attempt to obtain permission by making in-person contact with the property owner at the household was unsuccessful, sending
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at least 2 written requests, by U.S. mail, to property owners at the most recent mailing address identified through city records, for permission to replace the service line at that household. The City shall keep records that show the dates on which such written requests were sent, the address of the replacement eligible household, and the address of the property owner of such household (if different). b. A property owner who refuses permission to replace the portion of the service line lying beneath his or her property shall have 3 months from the date he or she initially declines replacement to grant the City permission to replace the portion of the service line lying beneath his or her property. To ensure that there is sufficient time to replace the service lines of property owners and residents whose permission is sought in the last year of the 3-year period set forth in Paragraph 20, the City shall contact the property owners and residents at all replacement eligible households to seek permission to conduct excavation and replacement within 18 months of the Effective Date or prior to the Year 3 Cutoff Date, whichever is later. 16. New water account at replacement eligible households. The City shall
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maintain records of the addresses of all replacement eligible households at which the property owner refuses permission to replace a service line (“Refusal List”). When a resident activates a new water account at any time within 18 months of the Effective Date or prior to the Year 3 Cutoff Date, whichever is later, the City shall determine whether the address is on the Refusal List. If the address is on the Refusal List, the City shall undertake reasonable efforts to obtain permission from the account holder to replace the service line. Reasonable efforts shall include sending at least two written requests. If permission is granted, the City shall replace the service line at no cost to the new property owner within the timeline described in Paragraph 20. If a new water account is activated more than 18 months after the Effective Date or after the Year 3 Cutoff Date, whichever is later, the City must send a written notice to the new account holder that the household’s service line material was not verified during City-wide service line excavation and replacement in 2017 through 2020, and that the service line may contain lead or galvanized steel.
17. Prohibition on Partial Service Line Replacements. Because partial lead service line replacement is frequently associated with short-term elevated lead levels in drinking water, if the City discovers that the entire length of a service line (from the main line to the curb box to the household water meter) is composed of lead or galvanized steel or a combination thereof, but the property owner refuses to
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grant the City permission to replace the portion of the service line lying beneath private property, the City shall not replace any portion of the service line. The City shall maintain a list of such households where a lead or galvanized steel service line is discovered but not replaced, and shall record the known existence of a lead or galvanized steel service line in the City records for each such household.
18. Ability to opt in. The Parties agree that there may be some households in the City that are currently unoccupied and do not have an active water account, but at which the property owner may want to have the service line replaced. To facilitate replacement of service lines at these households, the City shall make available on its website a form permitting property owners to opt in to the service line replacement program under this Section (Section IV.A). Property owners may opt in to the replacement program under this Paragraph at any time within 18 months of the Effective Date or prior to the Year 3 Cutoff Date, whichever is later. The City shall maintain a list of all property owners who have completed the form, and shall undertake reasonable efforts to contact those property owners to seek permission to replace the service lines at those households. The City may require property owners that seek to opt in under this Paragraph to create an active water account.
B. Timeline and Milestones 19. The City shall complete the obligations in Paragraphs 8-18 within 3
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years of the Effective Date. 20. The City shall replace lead and galvanized steel service lines on the
following schedule: a. Year 1: By January 1, 2018, the City shall have conducted excavations at a minimum of 6,000 households, and completed replacements at those households where lead and/or galvanized steel service lines are discovered. b. Year 2: By January 1, 2019, the City shall have conducted excavations at a minimum of 12,000 households total, and completed replacements at those households where lead and/or galvanized steel service lines are discovered. c. Year 3: By January 1, 2020, the City shall have conducted excavations at a minimum of 18,000 households total, plus excavations at any additional households pursuant to Paragraphs 27, 29, 30, and 33, and completed replacements at those households where lead and/or galvanized steel service lines are discovered.
C. Funding 21. State Monies for Service Line Replacement. Subject to the terms of this Section (Section IV.C), the State of Michigan will allocate and disburse
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monies to reimburse or pay on behalf of the City for costs related to identifying service line materials and replacing lead and galvanized steel service lines in the City pursuant to Paragraphs 8-20.
22. Allocated Monies. The State of Michigan shall allocate $87,000,000 (the “Allocated Monies”) for the purposes identified in Paragraph 21. To fulfill the obligations under this Paragraph, the State of Michigan may use money from any source including, without limitation, direct appropriations from the State Legislature, federal appropriations or grants for which the State of Michigan acts as an administrator, or any state or federal forgivable loan program. Of the $87,000,000 Allocated Monies, $47,000,000 will be funds allocated by the State of Michigan from sources other than the WIIN Monies and the State Matching Funds. Of the $87,000,000 Allocated Monies, $20,000,000 will be the State Matching Funds appropriated by the State of Michigan related to the WIIN Act. Of the $87,000,000 Allocated Monies, no more than $20,000,000 will be WIIN Monies.
23. Reimbursements. State Parties shall use the Allocated Monies to pay on behalf of or to reimburse the City for costs incurred in fulfilling the obligations in Paragraphs 8-20, including but not limited to service line replacements, installation of copper service lines, extension of service lines into the interior of households, pavement and yard restoration, Faucet Filter installation following
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service line replacement, and excavations related to identification of service line material, subject to the following:
a. Reimbursements or payments under Paragraph 23 shall be sent within 30 days of the City’s submission of any payment request for costs under this Paragraph;
b. Reimbursements or payments under Paragraph 23 will not exceed $5,000 per address at which a service line is replaced, without prior authorization by the Michigan Department of Environmental Quality. Michigan Department of Environmental Quality shall not unreasonably withhold reimbursements or payments under this Paragraph. For a given period for which reimbursement or payment is sought, the cost per address shall be the average cost of the service line replacements in the payment request submitted by the City for that period. For the purposes of this Paragraph, service line replacements shall be included in the calculation of the average cost per address regardless of whether all or part of the service line from the main line to the household water meter is replaced;
c. If, at the time of reimbursement or payment under Paragraph
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23, the Allocated Monies available for disbursement include funds other than those appropriated by the U.S. Congress or Michigan State Legislature pursuant to the WIIN Act (including the $100,000,000 federal appropriation and the $20,000,000 State Matching Funds), best efforts will be undertaken to first disburse those funds, subject to applicable state and federal law; d. Any reimbursements provided to or payments made on behalf of the City under Paragraph 23 shall take the form of a grant, or a loan with 100% forgiveness of the loan amount, or any other mechanism designed to provide funds to the City that do not have to be paid back by the City; e. Any separate grant or loan agreement(s) entered into between State Parties and the City of Flint related to reimbursements or payments under this Paragraph from the Allocated Monies or the Reserve Monies shall not be inconsistent with this Agreement, and State Parties and City of Flint must comply with this Agreement notwithstanding the provision of any separate grant or loan agreement(s); f. Any separate grant or loan agreement(s) entered into between State Parties and the City of Flint related to reimbursements or
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payments under this Paragraph shall not result in the City’s inability to perform its obligations under Paragraphs 8-20; and g. State Parties will make best efforts to provide Plaintiffs with a copy of any separate grant or loan agreement(s) entered into between State Parties and the City of Flint related to reimbursements or payments under this Paragraph at least 7 days before the execution of any such agreement. In any event, State Parties shall provide a copy to Plaintiffs of any such agreement(s) as soon as reasonably possible after execution. 24. Denials of Reimbursement or Payments. State Parties shall provide written notice to all Parties of denials of reimbursement or payments, as described in Paragraph 23.b. If, within 14 days of receiving such a notice, any Party disputes the reasonableness of any denial of reimbursement or payment in that notice, that Party may initiate the dispute resolution process described in Section XIII. 25. Audit request. The State of Michigan shall request the Office of Auditor General to conduct annual financial and performance audits of the Michigan Department of Environmental Quality’s administration of the reimbursements or payments described in Paragraph 23. 26. Residue. After the Completion of Service Line Replacement, any remaining Allocated Monies may be used by State Parties for purposes other than
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those identified in Paragraph 21, in accordance with state and federal law. Any remaining Allocated Monies appropriated as part of the WIIN Act, including any State Matching Funds, shall be distributed to the City in accordance with that Act.
27. Reserve Monies. In addition to any monies allocated pursuant to Paragraph 21, State Parties shall retain an additional $10,000,000 (the “Reserve Monies”) of the WIIN Monies. In the event that it is determined under Paragraph 29 that the Allocated Monies cannot reasonably be expected to cover the costs of completing the excavations and replacements required by Paragraphs 8-20, State Parties shall disburse the Reserve Monies pursuant to Paragraph 23. After the Completion of Service Line Replacement, any portion of the Reserve Monies remaining shall be distributed to the City in accordance with the WIIN Act.
28. In the event that the Allocated and Reserve Monies made available for reimbursement or payment by State Parties pursuant to Paragraphs 23 and 27 are insufficient to reimburse or pay on behalf of the City for replacements required under this Section, the City shall complete excavations and replacements of lead and galvanized steel service lines at replacement eligible households until no Allocated or Reserve Monies remain available for reimbursement or payment.
29. Updating cost and service line estimates. After completion of excavations and service line replacements at replacement eligible households identified in Zones 1 through 10 in Proposal Nos. 17-560, 2017 Replacement of
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Water Service Lines (Zones 1-10) and 17-564, 2017 Replacement of Water Service Lines (Zones 1-9) (attached to this Agreement as Exhibits D and E), the City shall conduct an evaluation as to whether the data and information available to them support any of the following conclusions: (i) it is reasonably likely that there were more than 18,000 lead and galvanized steel service lines at replacement eligible households as of the Effective Date; (ii) that the Allocated Monies and the Reserve Monies can reasonably be expected to cover the costs of completing the 18,000 excavations and replacements identified in Paragraphs 8-18 and the total number of any additional lead and galvanized steel service lines anticipated in light of the evaluation of (i) in this Paragraph; and/or (iii) that the Allocated Monies can reasonably be expected to cover the costs of completing the 18,000 excavations and service line replacements identified in Paragraphs 8-18 and the total number of any additional replacements of lead and galvanized steel service lines anticipated in light of the evaluation of conclusion (i) in this Paragraph. In making this determination, the City shall consider all relevant information available to them, including without limitation information obtained through completion of service line replacement under Proposal No. 17-560; any additional excavations (through hydro vacuum or other methods) completed after the Effective Date; and any additional investigation of service line material at households conducted in connection with tap water monitoring under this Agreement.
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30. Within 30 days after the completion of excavations and service line replacements at replacement eligible households identified in Zones 1 through 10 in Proposal Nos. 17-560, 2017 Replacement of Water Service Lines (Zones 1-10), and 17-564, 2017 Replacement of Water Service Lines (Zones 1-9), the City shall provide a written statement to all other Parties summarizing the data and information used in the evaluation outlined in Paragraph 29, and the City’s relevant conclusions regarding (i)-(iii) in Paragraph 29. Within 14 days of receiving the written statement under this Paragraph, any other Party shall notify the City of whether they concur with the findings in the written statement. To the extent any Party does not concur with the findings in the City’s statement, any Party may initiate the dispute resolution process described in Section XIII. No monies will be released pursuant to Paragraph 31 until the resolution of any dispute arising under this Paragraph.
31. Release of Reserve Monies. If the Allocated Monies will be sufficient to complete the excavations and service line replacements of all lead and galvanized steel service lines in the City, based on the evaluation conducted under Paragraph 29, then the Reserve Monies must no longer be retained as required under Paragraph 27 and will be distributed to the City for the purposes identified in section 2201(b) of, and in accordance with, the WIIN Act.
32. Obligation to seek additional funds. If, based on the evaluation
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conducted pursuant to Paragraph 29, it is reasonably likely that the Allocated Monies and Reserve Monies will be insufficient to complete the 18,000 excavations and replacements identified in Paragraphs 8-18 plus any additional excavations and replacements identified, State Parties shall undertake all reasonable efforts to secure additional monies (including, if necessary, seeking appropriations from the Michigan State Legislature) sufficient to reimburse the City for costs related to the excavations and replacements described in Paragraphs 8-20 at replacement eligible households. Any additional monies secured by State Parties under this Paragraph shall be made available for reimbursement or payment under Paragraph 23. State Parties shall undertake the reasonable efforts required under this Paragraph and shall provide Plaintiffs with a written report documenting such efforts and the results within 90 days of Plaintiffs’ concurrence or the resolution of any disputes under Paragraph 30.
33. Obligation to replace additional service lines. If, based on the evaluation conducted pursuant to Paragraph 29, it is reasonably likely that there were more than 18,000 lead and galvanized steel service lines at replacement eligible households in the City as of the Effective Date, then the milestones in Paragraph 20 shall be modified and the City shall complete excavation and replacement of the updated total number of estimated lead and galvanized steel service lines in the City within 3 years of the Effective Date. If additional monies
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are necessary to conduct excavations and service line replacements under this Paragraph, the City will conduct those excavations and service line replacements only if State Parties secure additional monies for reimbursement or payment under Paragraph 23, as described in Paragraph 32. In the event that additional monies State Parties secure as described in Paragraph 32 are insufficient to complete the City’s obligations under this Paragraph, the City shall nonetheless complete as many replacements of lead and galvanized steel service lines at replacement eligible households as the additional monies allow.
D. Process 34. Flushing protocol. The City shall ensure that, after replacement of a service line at a household, flushing is conducted for at least 15 minutes at the hose bib outside the house, and that the resident is instructed to flush the taps inside the house for at least 15 minutes by opening the taps as wide as possible and flushing the water at the highest velocity possible after removing and cleaning any aerators and Faucet Filters. 35. Notice of lead or galvanized steel premise plumbing. If the City discovers that a household has premise plumbing made of lead or galvanized steel, the City shall provide notice to the property owner and residents of the household of the premise plumbing material, and that the premise plumbing in the household may be a source of lead in drinking water.
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36. Contract management and recordkeeping. The City shall maintain records sufficient to comply with the reporting and disclosure requirements under this Agreement.
37. Oversight. Plaintiffs or State Parties may request in writing to meet and confer with the City about whether the actions planned or taken under this Section will ensure compliance with the timeline and milestones in Paragraphs 1920. Within 30 days of receiving a request to meet and confer under this Paragraph, the City will meet and confer with the requesting Parties and will consider in good faith any reasonable recommendations from those Parties.
E. Faucet Filter Maintenance after Service Line Replacement 38. Government Parties shall ensure that at each household where a service line is replaced, residents are instructed to use filtered water for at least 6 months following the service line replacement. Unless the resident refuses, Government Parties will make a good faith effort to ensure that each household has a properly installed Faucet Filter immediately after its service line replacement is complete and a sufficient number of replacement cartridges for 6 months of use. A good faith effort shall include three attempts to obtain access to a household to properly install a Faucet Filter. For the excavations and replacements undertaken by the City with respect to the first 6,000 service lines under Paragraph 20.a, State Parties will fulfill the obligations under this Paragraph. Thereafter, the City shall
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fulfill the obligations under this Paragraph. Government Parties will document any refusal by a resident for a filter installation under this Paragraph and provide that documentation to Plaintiffs upon request, within 14 days of such request.
39. Replacement cartridges. State Parties will provide the City with filter replacement cartridges for the City to make available to residents free of charge at City Hall, or another location designated by the City, until one year after the Completion of Service Line Replacement. The replacement cartridges shall be compatible with the Faucet Filters distributed and installed through the Community Outreach and Resident Education (CORE) Program in Section VI.
F. Monitoring in Connection with Service Line Replacements 40. Confirming Lead Elimination After Replacement (CLEAR) Program. State Parties shall recruit at least 200 households to participate in tap water monitoring as part of the CLEAR program. State Parties shall make reasonable efforts to include a geographically diverse set of eligible households in the CLEAR program. At each household participating in the CLEAR program tap water monitoring, State Parties shall direct the resident to, using procedures that comply with the Lead and Copper Rule, 40 C.F.R. § 141.86, and at no cost to the resident:
a. collect a tap water sample within 90 days prior to replacement of the lead or galvanized steel service line serving that household (round 1); and
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b. collect a tap water sample monthly for 6 months following replacement of the lead or galvanized steel service line serving the household (rounds 2 through 7).
41. State Parties shall make reasonable efforts to pick up residentcollected samples as part of the CLEAR program, including at least 3 attempted pick-ups for each sample collected.
42. If, during a round described in Paragraphs 40.a and 40.b, the total number of households recruited for the CLEAR program that successfully collect samples for that round falls below 100, State Parties will continue to recruit additional households to participate in the CLEAR program until a minimum of 100 participating households have collected samples for each round described in Paragraphs 40.a and 40.b.
43. If the household otherwise qualifies as a Tier 1 sampling site pursuant to 40 C.F.R. § 141.86(a)(3), Government Parties may use the tap water samples collected under Paragraph 40 to count towards the minimum required number of tap water samples to be collected during a 6-month monitoring period under Paragraph 46.
44. State Parties shall make the results of tap water testing conducted as part of the CLEAR Program publicly available by posting the results on a website controlled by some or all State Parties. State Parties shall update the results posted
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online within 7 days of receiving each round of complete data from the laboratory. Any monitoring results posted online pursuant to this Paragraph shall remain publicly available and posted online until the Termination Date.
G. Completion of Service Line Replacement 45. If the City determines that it has materially complied with all of its obligations under Paragraphs 8-20, 28-30, 33, and 38 of this Agreement, it shall provide a written statement to all Parties stating the specific date upon which the City believes it completed such obligations and explaining the basis for its conclusion. Within 14 days of receiving the written statement under this Paragraph, all Parties shall notify the City whether they concur with the conclusions in the written statement. If all Parties concur with the City’s conclusion in the written statement, the City’s obligations under Paragraphs 8-20, 28-30, 33, and 38 of this Agreement shall be deemed to be completed as of the date indicated in the City’s statement. This date will constitute the “Completion of Service Line Replacement.” To the extent any Party does not concur with the conclusions in the City’s statement, any Party may initiate the dispute resolution process described in Section XIII. V. Tap Water Monitoring A. Tap Water Monitoring During Consecutive 6-month Periods 46. Government Parties shall monitor the tap water distributed through
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Flint’s Water System for lead in compliance with the Lead and Copper Rule, 40 C.F.R. § 141.86, during consecutive 6-month periods, including the period beginning January 1, 2017, and continuing thereafter.
47. Government Parties shall not seek, and the Michigan Department of Environmental Quality shall not permit, reduced monitoring for the Flint Water System under 40 C.F.R. § 141.86(d)(4) until one year after Completion of Service Line Replacement.
48. Tap water monitoring conducted under Paragraph 46 shall include, for each 6-month monitoring period, the collection of tap water samples from at least the minimum number of sites specified in the first column (“standard monitoring”) of the table in 40 C.F.R. § 141.86(c). All sites at which tap water monitoring is conducted under Paragraph 46 shall be Tier 1 sampling sites, as defined in 40 C.F.R. § 141.86(a)(3).
49. For tap water monitoring conducted under Paragraph 46, during each 6-month monitoring period, at least half of the minimum number of required samples specified in Paragraph 48 shall be collected during May-June or JulyAugust.
B. Independent Monitoring Program 50. An independent program shall be established to conduct additional tap water monitoring for the Flint Water System.
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51. The Parties shall meet and confer to agree on a third-party Independent Monitor to conduct tap water monitoring pursuant to this Section (Section V.B). The Independent Monitor shall be a person with expertise in collecting and processing tap water samples for lead, and must not have been employed by or provided consulting services to any Party relating to drinking water in Flint, Michigan during the 5 years prior to the Effective Date. If a Party suggests a potential Independent Monitor who has served as a consultant or expert for that Party during the last 5 years concerning a matter other than drinking water in Flint, Michigan, then that Party shall disclose that fact and the nature of the prior consulting or expert work to the other Parties at the time the name is suggested. If, after 30 days from the Effective Date, the Parties cannot agree on an Independent Monitor, Plaintiffs and Government Parties shall each submit one nomination to the Court (one nomination for Plaintiffs, collectively, and one nomination for Government Parties, collectively) within 35 days from the Effective Date. The Parties shall jointly request that the Court select the Independent Monitor to conduct the monitoring described in this Section (Section V.B) within 45 days from the Effective Date.
52. The Independent Monitor shall conduct household tap water monitoring for lead in compliance with the Lead and Copper Rule at a minimum of 100 Tier 1 sampling sites during consecutive 6-month monitoring periods, for 3
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years following the Effective Date. These 100 sampling sites shall be distinct from the sites used for tap water monitoring conducted under Paragraph 46. The first 6month monitoring period will begin on July 1, 2017, or on another date agreed upon by the Independent Monitor and Plaintiffs. The Independent Monitor may conduct monitoring at fewer than 100 Tier 1 sampling sites only if Plaintiffs approve.
53. The Independent Monitor shall identify the sampling sites used for monitoring under this Section (Section V.B). Plaintiffs may assist the Independent Monitor with identifying the sampling sites. At the Independent Monitor’s or Plaintiffs’ request, Government Parties will provide any records and other information in their custody or control to facilitate confirmation that the sites identified by the Independent Monitor (i) are Tier 1 sampling sites, and (ii) are not being used as sites for tap water monitoring under Paragraph 46 for a particular 6month monitoring period.
54. Plaintiffs shall execute a contract with the Independent Monitor to conduct the tap water monitoring described in Paragraphs 50-53 and 55-56. State Parties shall timely reimburse Plaintiffs for reasonable costs incurred under that contract, excluding any overhead or oversight costs incurred by Plaintiffs and up to a maximum of $25,000 per 6-month monitoring period.
55. If the 90th percentile lead level of the samples collected as part of the
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Independent Monitoring Program under this Section is below the Lead Action Level for two consecutive 6-month monitoring periods, State Parties shall discontinue funding for the Independent Monitoring Program.
56. The Independent Monitor shall provide the results from the tap water monitoring conducted under Paragraph 52 to the Parties within 14 days after the end of the 6-month monitoring period. Within 30 days after the end of the 6-month monitoring period, State Parties shall make those results publicly available through a website controlled by some or all of State Parties. Any monitoring results posted online pursuant to this Paragraph shall remain publicly available and posted online until the Termination Date.
C. Sample Collection 57. All household tap water samples collected for the purposes of implementing this Agreement shall be collected using wide-mouth sample bottles as described in Paragraph 2.dd. 58. All household tap water samples collected for the purpose of implementing this Agreement shall be collected without the practice of prestagnation flushing, as described in a Memorandum from Peter C. Grevatt, Director, Office of Ground Water & Drinking Water, U.S. EPA, to Water Division Directors, Regions I – X, U.S. EPA, dated February 29, 2016, regarding Clarification of Recommended Tap Sampling Procedures for Purposes of the Lead
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and Copper Rule, attached to this Agreement as Exhibit F. No tap water sampling instructions provided to residents for the purposes of collecting tap water samples under this Agreement shall include an instruction to conduct pre-stagnation flushing prior to collecting the sample.
D. Voluntary Residential Monitoring 59. Until one year after the Completion of Service Line Replacement, Government Parties shall continue to provide household tap water testing kits to residents who want to test their tap water for lead. Government Parties shall provide these testing kits and the testing free of charge to residents. Government Parties shall make household tap water testing kits available for residents to pick up at City Hall, and may make tap water testing kits available at other locations. State Parties will cover the costs of the tap water testing kits. 60. Government Parties may charge a reasonable fee to cover costs of testing a resident’s tap water for lead if the resident has already submitted more than two testing kits for the purpose of testing his or her tap water during the preceding 6 months. 61. State Parties shall ensure that each household that submits a tap water testing kit pursuant to Paragraph 59 is notified of the tap water monitoring results for that individual household no later than 30 days after the Flint Water System learns of those results. This notification shall be provided by mail and otherwise
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comply with the requirements in 40 C.F.R. § 141.85(d). 62. State Parties shall make the results of tap water monitoring conducted
under this Section publicly available on a website controlled by some or all of State Parties. The results posted on such a website shall be updated at least every 30 days. Any monitoring results posted online pursuant to this Paragraph shall remain publicly available and posted online until the Termination Date.
E. Notification of Tap Water Monitoring Results 63. Government Parties shall implement an information check and log system at all locations where residents can drop off household tap water testing kits, to help ensure residents promptly receive their testing results. 64. A staff person at each such location shall make best efforts to verify that a name and address are present and legible on each testing kit at the time of submission. 65. Staff at each such location shall also maintain a log that identifies each testing kit that is dropped off by any identifying number on the sample bottle and provide written receipts to the resident upon drop-off that contain any identifying number. POD or City staff receiving the testing kit shall record in the log the date and time that the testing kit was received and that the staff person has completed the information check described in Paragraph 64.
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VI. Filter Installation, Maintenance, and Education 66. State Parties shall maintain and expand the CORE program on filter
education, installation, and maintenance as described in this Section. 67. For purposes of this Section only (Section VI), a “CORE eligible
household” is any household that has an active water account, but does not include households that are abandoned, as defined in Paragraph 12.
A. CORE Staff 68. State Parties shall ensure that CORE teams are dispersed throughout Flint for 8 hours per day, Monday through Saturday. By March 1, 2017, State Parties will make best efforts to disperse at least 90 education specialists daily for 8 hours per day on Mondays through Saturdays. CORE education specialists will be dispersed on Sundays for up to 8 hours to conduct scheduled appointments with CORE eligible households and Initial and Follow-up Visits. The number of CORE education specialists dispersed on Sundays may vary depending on demand and staff availability. 69. Starting March 1, 2017, State Parties will make a good-faith effort to maintain 160 education specialists, including 16 coordinators, as part of the CORE staff. In the event that the number of CORE education specialists available to conduct Initial and Follow-Up Visits drops to or below 150, State Parties will, within 7 days, request that GST Michigan Works! hire the number of education
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specialists necessary to reach 165 total education specialists. State Parties will make best efforts to ensure that, within 45 days of such a request to GST Michigan Works!, such additional education specialists are hired and trained to conduct Initial and Follow-Up Visits.
70. Before any permanent decrease in CORE staff, State Parties shall provide written notice to Plaintiffs at least 30 days before the planned staff decrease and shall meet and confer with Plaintiffs concerning such a decrease upon request, within 14 days of such a request. Plaintiffs may not initiate the dispute resolution process described in Section XIII to address disputes arising under this Paragraph.
71. Within 14 days of the Effective Date, State Parties will make available to Plaintiffs for review and comment any materials used to train CORE staff. All training materials used for CORE staff and written materials distributed during CORE visits shall be consistent with the Filter Education described in Paragraph 77.c. State Parties shall inform Plaintiffs by written notice every 30 days, beginning 30 days after the Effective Date, of any changes to these materials.
B. Initial Visits 72. Except as provided in Paragraph 74, by March 23, 2017, CORE teams shall make all reasonable efforts to complete an Initial Visit with every CORE eligible household. An Initial Visit for a CORE eligible household is
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deemed completed if one of the following is true: a. There is a successful filter inspection: A CORE team has made a successful filter inspection if the CORE team makes personal contact with a resident of the household and conducts the Filter Inspection and Education set forth in Paragraph 77; or b. A resident refuses inspection: A resident refuses inspection when the CORE team makes personal contact with a resident of the household, and upon an attempt by the CORE team to conduct the Filter Inspection and Education set forth in Paragraph 77, the resident refuses CORE staff entry into the household. In such circumstances, the CORE team shall attempt to leave with the resident a door hanger as described in Paragraph 75 and any written educational information as described in Paragraph 77.c.iv, and shall document whether a Follow-up Visit is appropriate. A Follow-Up Visit is appropriate unless the CORE team determines, based on personal contact with the resident, that a Follow-up Visit to that household would be rejected by the resident. In such circumstances, the CORE team shall document the reasons for that determination, and the household is no longer a CORE
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eligible household. 73. CORE teams will have made all reasonable efforts to complete an Initial Visit at a CORE eligible household as required in Paragraph 72 if, after two attempted Initial Visits, they have been unable to make personal contact with a resident of the household. 74. No Initial Visit is required for any CORE eligible household for which a CORE team conducted a Filter Inspection and Education set forth in Paragraph 77, or its substantial equivalent, prior to the Effective Date. 75. CORE teams shall leave a door hanger at a CORE eligible household where they are unable to make personal contact during any attempted Initial Visit or Follow-Up Visit. The door hangers shall include information on the purpose of the CORE program; how to schedule an appointment for a visit from a CORE team; and how to get information about water-related services. A copy of the door hanger is attached as Exhibit G. By April 15, 2017, the door hanger shall include Spanish language information on the purpose of the CORE program and how to schedule an appointment for a visit from the CORE team. 76. CORE teams dispersed on Saturdays will be instructed to attempt to visit CORE eligible households where attempted Initial Visits on weekdays had resulted in no personal contact with a resident. 77. The “Filter Inspection and Education” conducted by CORE teams
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during an Initial Visit must, at a minimum, include the following elements: a. Engagement i. The CORE team will explain to a resident of the household that they are visiting to inspect the household’s Faucet Filter to ensure it is properly installed and working and to provide information and training related to Faucet Filters. b. Inspection i. The CORE team will inspect the household’s kitchen faucet to determine whether a Faucet Filter has been installed. ii. If a Faucet Filter has been installed on a kitchen faucet, the CORE team will determine whether that filter is properly installed and is operating properly. If the CORE team determines that the Faucet Filter is properly installed and is operating properly, the Inspection is complete. iii. If no Faucet Filter has been installed on a kitchen faucet, or if the CORE team discovers that a Faucet Filter is installed improperly or is not operating properly, the CORE team will attempt to provide and install, at no cost to the household, a new Faucet Filter and/or appropriate filter cartridge on a kitchen faucet. If the CORE team installs a Faucet Filter
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2:16-cv-10277-DML-SDD Doc # 147-1 Filed 03/27/17 Pg 48 of 92 Pg ID 7396
and/or filter cartridge, and determines that the Faucet Filter is properly installed and operating properly, the Inspection is complete. iv. In the event that a CORE team is unable to install a new Faucet Filter because the household’s faucet is not working or is not compatible with the Faucet Filters, the CORE team shall (a) provide the household with a qualifying Pitcher Filter; and (b) offer to add the household to the State of Michigan’s list of households that qualify for the Faucet Fixture Replacement Program (which is currently scheduled to expire on September 30, 2017), and, if the resident accepts the offer, add the household to the Program as long as capacity remains in that Program. A qualifying Pitcher Filter is the ZeroWater 23-Cup Dispenser, model number ZD-018. The Faucet Fixture Replacement Program is a program sponsored by the Michigan Department of Environmental Quality and the Michigan Department of Health and Human Services that will replace approximately 4,000 faucet fixtures in households in Flint, Michigan, at no cost to residents.
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c. Education i. During the Inspection described in Paragraph 77.b, the CORE team will train the resident, through demonstration if possible, how to properly install a Faucet Filter and how to properly install a filter cartridge. The CORE team shall provide manufacturer’s instructions for any Faucet Filter or filter cartridge provided to the household. ii. The CORE team will educate the resident about the following topics relating to filter maintenance: (a) how to maintain the filter assembly; (b) how to identify if the filter cartridge for the installed Faucet Filter needs replacement; (c) how to install the appropriate replacement filter cartridges; (d) how and why to flush the filter following installation of a new filter cartridge; and (e) how to remove, inspect, and clean an aerator.
iii. The CORE team will educate the resident about the following topics relating to filter use: (a) that unfiltered water should not be used for cooking or drinking; (b) how to operate the “bypass” valve of the Faucet Filter to switch between filtered and unfiltered water flowing through the
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filter assembly; (c) that hot water should never be run through the filter unless the “bypass” valve is turned on because hot water can ruin the filter cartridge; (d) to check before running cold water through the filter assembly to ensure that the “bypass” valve is turned off; and (e) to stop using, remove, and replace the Faucet Filter if the “bypass” valve, or any other part of the filter, breaks or begins leaking water. iv. The CORE team will also provide the following information to the resident: (a) the telephone number to call to get replacement filter cartridges at no cost to the household, if such delivery is available when the Visit occurs; (b) the locations where replacement filter cartridges are available for pick-up; (c) a set of written instructions, including images, for filter and replacement cartridge installation (attached as Exhibit H); and (d) written instructions regarding proper use of filtered water (attached as Exhibit I); and (e) the telephone number to schedule an appointment for a visit by a CORE team for filter inspection and education services. These materials shall be available in English,
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Spanish, Chinese, Arabic, and Hmong, and shall be provided in whichever of those languages the residents of that household speak. v. If, during the provision of the Education elements in Paragraph 77.c.i-iv, a resident refuses any element, the provision of the refused Education element will be deemed complete. vi. If, during the provision of the Education in Paragraph 77.c.i-iv, a resident requests termination of the Visit, the Education requirements of the Initial Visit will be deemed complete. 78. Before any changes in the text of the door hangers distributed to residents by CORE teams, State Parties shall provide written notice to Plaintiffs at least 14 days before implementation of such changes and shall meet and confer with Plaintiffs about the proposed changes within 14 days of such a request. C. Follow-Up Visits 79. CORE teams shall make all reasonable efforts to complete Follow-up Visits to each CORE eligible household monthly for 3 months beginning March 23, 2017; every other month thereafter through December 31, 2017; and then once every 6 months through December 31, 2018.
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80. For purposes of Paragraph 79, a Follow-Up Visit for a CORE eligible household is deemed completed if one of the following is true:
a. There is a successful follow-up filter inspection: A CORE team has made a successful follow-up filter inspection if the CORE team makes personal contact with a resident of the household and conducts the Follow-up Filter Inspection and Education set forth in Paragraph 82; or
b. A resident refuses inspection: A resident refuses inspection when the CORE team makes personal contact with a resident of the household, and upon an attempt by the CORE team to conduct the Follow-up Filter Inspection and Education set forth in Paragraph 82, the resident refuses CORE staff entry into the household. In such circumstances, the CORE team shall attempt to leave with the resident a door hanger as described in Paragraph 75 and any written educational information as described in Paragraph 77.c.iv, and document whether an additional Follow-up Visit is appropriate. A Follow-Up Visit is appropriate unless the CORE team determines, based on personal contact with the resident, that an additional Follow-up Visit to that household would be rejected by the resident. In
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such circumstances, the CORE team shall document the reasons for that determination, and the household is no longer a CORE eligible household. 81. CORE teams will have made all reasonable efforts to complete a Follow-up Visit at a CORE eligible household as required in Paragraph 79 if, after at least one attempted Follow-up Visit, CORE teams are unable to make personal contact with a resident of that household. 82. The “Follow-up Filter Inspection and Education” conducted by CORE teams during a Follow-up Visit must include the following elements: a. The CORE team will explain to a resident of the household that they are visiting to inspect the household’s Faucet Filter to ensure it is properly installed and working and to provide information and training related to Faucet Filters; b. The CORE team will conduct a Filter Inspection, as described in Paragraph 77.b; c. The CORE team will offer to provide Filter Education, as described in Paragraph 77.c.i-iii, and will provide such education upon request; and d. The CORE team will provide Filter Education, as described in Paragraph 77.c.iv.
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e. If, during the provision of the Education elements in Paragraph 82.c-d, a resident refuses any element, the provision of the refused Education element will be deemed complete.
f. If, during the provision of the Education in Paragraph 82.c-d, a resident requests termination of the Visit, the Education requirements of the Follow-up Visit will be deemed complete.
83. Through December 31, 2017, the CORE team will provide, at no cost to the CORE eligible household, enough replacement Faucet Filter cartridges for the brand and model of Faucet Filter installed on the kitchen faucet (or the qualifying Pitcher Filter if Paragraph 77.b.iv applies) to last until the next anticipated Follow-up Visit. After December 31, 2017, the CORE team will provide at no cost to the CORE eligible household at least two such replacement Faucet Filter cartridges during each Initial or Follow-up Visit, unless the household refuses to accept some or all of the replacement filters, in which case, the refusal will be documented by the CORE team.
D. Opt-out Option for CORE Eligible Households 84. A resident of a CORE eligible household may opt out his or her household from future Follow-up Visits by CORE teams. If a resident indicates to a CORE team that he or she would like to opt out his or her household from future Follow-up Visits, the CORE team shall provide the resident with written
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information about how to obtain additional filter cartridges. By March 23, 2017, the CORE team shall be able to and shall document through a field other than a comment box in the CORE Program’s recordkeeping application (app) that the previously CORE eligible household has opted out from future Follow-up Visits. Prior to March 23, 2017, the CORE team shall document in the comments box of the app that the previously CORE eligible household has opted out from Future Follow-up Visits and the reason why, if any is provided. After such documentation, the household will no longer qualify as a CORE eligible household.
E. New Flint Water System Customers 85. The City shall notify CORE staff of any new Flint Water System customer within 30 days after activation of a new water account for the customer’s household. CORE staff shall make all reasonable efforts to complete an Initial Visit to any such household (as defined in Paragraphs 72-73) within 14 days of receiving such notice. F. Appointments for CORE Team Visits 86. By March 1, 2017, State Parties shall ensure that CORE teams are made available for visits by appointment on weekends. By March 23, 2017, State Parties shall ensure that CORE teams are made available on at least two weekday evenings each week. 87. Once evening and weekend appointments are available for CORE
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team visits, State Parties shall ensure that Michigan 2-1-1 helpline operators will inform residents who call to schedule an appointment with a CORE team that appointments can be scheduled on weekends and at least two weekday evenings per week.
G. Priority CORE Team Visits 88. State Parties will notify CORE teams of the address of any household with a tap water sample collected pursuant to Section V that reveals a lead concentration above 100 parts per billion in a 1-liter sample or a 1-liter calculated value, within 5 days of receiving those sampling results. 89. Within 3 days of receiving notification under Paragraph 88, CORE teams shall attempt a Visit to any CORE eligible household identified in that notice to provide Filter Inspection and Education as described in Paragraph 77, unless a CORE team has previously completed a Filter Inspection and Education as described in Paragraph 77 or a Follow-up Filter Inspection and Education pursuant to Paragraph 82 for that household. H. Publicity for CORE Program 90. State Parties shall make available $100,000 to fund efforts to publicize the CORE program. State Parties shall undertake reasonable efforts to use this funding to publicize the CORE program both between March 15 and April 15, 2017, and between July 15 and August 15, 2017.
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91. State Parties will use the funds described in Paragraph 90 to publicize the CORE program by at least the following means: (i) a television commercial to air regularly during the time periods identified in Paragraph 90; (ii) a radio announcement to be aired regularly during the time periods identified in Paragraph 90; (iii) at least one Spanish-language advertisement (which may be an advertisement in a Spanish-language newspaper or on a Spanish-language radio station, or a billboard in a Spanish-speaking neighborhood); and (iv) a webpage accessible through both www.cityofflint.com and www.michigan.gov/flintwater. Each advertisement referenced in this Paragraph shall state that CORE teams provide filter inspection, installation, and education free of charge and how to schedule an appointment for a visit from a CORE team.
92. Within 14 days of the Effective Date, Plaintiffs will make reasonable efforts to assist in community outreach to educate residents about the CORE program, including by convening a meeting of interested local groups with CORE staff representatives. As part of this assistance, Plaintiffs shall meet and confer with Government Parties concerning effective ways to conduct outreach to Spanish-speaking and other non-English-speaking residents. Government Parties shall cooperate with Plaintiffs in good faith to identify and effectuate reasonable outreach efforts to those residents.
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VII. Bottled Water Distribution A. Community Water Resources Sites 93. State Parties shall continue to operate at least nine Community Water
Resources Sites, also known as points of distribution (PODs), at their current hours of operation (Monday through Saturday, 12:00 pm to 6:00 pm).
94. State Parties shall continue to make filters, filter cartridges, bottled water, and water testing kits available to residents free of charge at each of the PODs.
95. Beginning May 1, 2017, State Parties may discontinue the services provided at the PODs as set forth below, but only if otherwise expressly permitted under Paragraphs 96 to 98:
a. State Parties shall track daily the number of bottled water pickups at each POD;
b. For purposes of this Section (Section VII), a “bottled water pick-up” is a visit to a POD by a pedestrian or a vehicle for the purpose of, or that results in, the provision of bottled water;
c. If the average number of daily bottled water pick-ups at a POD is less than or equal to 20 for the first 3 weeks of the previous month, State Parties may close that POD beginning the first day of the following month (e.g., if the average number of daily
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bottled water pick-ups at a POD is less than or equal to 20 during the three-week period from April 1 through April 21, 2017, then State Parties may close that POD starting May 1, 2017); d. For at least 7 days prior to the closure of any POD, State Parties must: (i) post visible signs notifying visitors of the POD’s closure; and (ii) provide each visitor with a written notice that includes the date of the POD’s closure, the addresses and hours of operation of PODs that remain open, and the availability of bottled water delivery through the Michigan 2-1-1 helpline (unless bottled water delivery through the Michigan 2-1-1 helpline has been discontinued pursuant to Paragraph 103); e. At least 7 days prior to the closure of any POD, State Parties must (i) notify Plaintiffs and the City of the locations of the POD to be closed and the date of expected closure; and (ii) provide Plaintiffs with documentation of the number of bottled water pick-ups per day at the POD to be closed in the month prior to its closure; and f. On the day of, or within 2 days before, the closure of any POD under this Section, Government Parties shall update the
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information available on their websites to reflect such closure. 96. From May 1, 2017, to June 1, 2017, State Parties may close up to 3 PODs as set forth in Paragraph 95. If more than 3 PODs have an average number of daily bottled water pick-ups of less than or equal to 20, State Parties may close only the 3 PODs with the lowest average numbers of such bottled water pick-ups. 97. From June 1, 2017, to July 1, 2017, State Parties may close up to 2 additional PODs as set forth in Paragraph 95. If more than 2 PODs have an average number of daily bottled water pick-ups of less than or equal to 20, State Parties may close only the 2 PODs with the lowest average numbers of such bottled water pick-ups. 98. If the 90th percentile lead level of the tap water samples collected pursuant to Paragraph 46 for the 6-month monitoring period beginning January 1, 2017, and ending on June 30, 2017, is below the Lead Action Level, State Parties may close the remaining PODs as set forth in Paragraph 95.d-f, but State Parties must maintain at least 2 PODs at their current hours until September 1, 2017. The PODs remaining open between July 1, 2017, and September 1, 2017, shall be the 2 PODs with the largest average number of daily bottled water pick-ups. State Parties shall have no obligation to operate any POD after September 1, 2017, if the 90th percentile of the tap water samples collected pursuant to Paragraph 46 for the 6-month monitoring period beginning January 1, 2017, and ending on June 30,
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2017, is below the Lead Action Level. B. 2-1-1 Services 99. Residents may request delivery of bottled water through the Michigan
2-1-1 helpline. State Parties shall deliver the amount of bottled water requested free of charge within 24 hours.
100. State Parties may require that a resident be present at a household to receive a bottled water delivery. The resident must be informed of this requirement by 2-1-1 staff when a delivery request is made.
101. If State Parties require that a resident be present at a household to receive bottled water deliveries, State Parties will make available the option to schedule an appointment for a delivery. Such appointments must be available on weekends and during at least two weekday evenings each week.
102. State Parties may send a CORE team to a household that requests bottled water delivery for the purpose of Filter Inspection and Education, as described in Paragraphs 77 and 82.
103. If the 90th percentile lead level of the samples collected pursuant to Paragraph 46 for the 6-month monitoring period beginning January 1, 2017 and ending on June 30, 2017, is below the Lead Action Level, State Parties may discontinue the services required under Paragraph 99. Otherwise State Parties must continue the services required under Paragraph 99 until the 90th percentile lead
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level collected pursuant to Paragraph 46 is below the Lead Action Level for a subsequent 6-month monitoring period.
C. Access and Functional Needs List 104. State Parties shall maintain an “Access and Functional Needs” List of households with homebound residents that receive bottled water deliveries. State Parties shall continue to provide weekly deliveries of bottled water free of charge to households on the Access and Functional Needs List. 105. If Plaintiffs become aware of a resident who, because of access or functional needs, cannot travel to PODs or City Hall to pick up bottled water, filters, or filter cartridges, and seeks those resources, they shall inform State Parties of the resident’s name, address, and telephone number, if known to Plaintiffs. Within 3 days of receiving the resident’s name, address, and telephone number pursuant to this Paragraph, State Parties shall (i) add that resident to the Access and Functional Needs List; (ii) call the resident to schedule a time for a CORE team to visit the household; and (iii) send a CORE team to the resident’s household at a time agreed upon by the CORE staff and the resident to conduct Filter Inspection and Education as described in Paragraphs 77 and 82, and to provide bottled water, filters, or filter replacement cartridges at the resident’s request. 106. State Parties may send a CORE team to a household on the Access and Functional Needs list when delivering bottled water to that household for the
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purpose of Filter Inspection and Education, as described in Paragraphs 77 and 82. 107. If the 90th percentile lead level of the samples collected pursuant to
Paragraph 46 for the 6-month monitoring period beginning January 1, 2017, and ending on June 30, 2017, is below the Lead Action Level, State Parties may discontinue the services required under Paragraphs 104-105. Otherwise State Parties must continue the services required under Paragraphs 104-105 until the 90th percentile lead level collected pursuant to Paragraph 46 is below the Lead Action Level for a subsequent 6-month monitoring period.
108. Until one year after the Completion of Service Line Replacement, State Parties shall provide delivery of a sufficient number of Faucet Filter replacement cartridges to households on the Access and Functional Needs List to ensure those households have sufficient replacement cartridges for Faucet Filter maintenance. VIII. Health Programs
109. State Parties shall operate and maintain funding at current levels for the programs listed below, until the dates listed below, subject to applicable federal laws, necessary approvals from the Centers for Medicare & Medicaid Services, and availability of necessary federal monies:
a. The Medicaid expansion for pregnant women and children under twenty-one years of age up to 400% of the federal
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poverty level (as defined by the U.S. Department of Health and Human Services), through March 2021; b. Elevated Blood Lead Level Case Management services for children with elevated blood lead levels, through September 2018; c. Family Supports Coordination target case management services, through March 2021; d. The Michigan Child Collaborate Care expansion, through September 2018; e. The Child and Adolescent Health Center expansion, through September 2018; f. The Michigan Nurse Professional Fund, through September 2018; g. The Mobile Food Pantry expansion, through September 2018; h. The Double Up Food Bucks expansion, through September 2018; and i. The Summer Electronic Benefit Transfer for Children program expansion, through September 2018. IX. Release of Liability 110. This Agreement resolves and Plaintiffs hereby fully and finally
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release and discharge any and all of the claims that were alleged by Plaintiffs in their Complaint in the Case or that could have been resolved by Plaintiffs as of the Effective Date against Government Parties with respect to the Flint Water System’s compliance with the Lead and Copper Rule’s requirements as set forth in 40 C.F.R. §§ 141.80, .81, .82, .85, .86, .87, and .90. For purposes of this paragraph, the phrase “could have been resolved” means not only claims already litigated in the Case, but also every claim arising from the same transaction that the parties, exercising reasonable diligence, could have raised but did not.
111. This Agreement resolves and Plaintiffs hereby fully and finally release and discharge any and all of the claims against Government Parties that may arise until the Termination Date with respect to the Flint Water System’s compliance with the Lead and Copper Rule’s requirements as set forth in 40 C.F.R. §§ 141.80, .81, .82, .85, .86, .87, and .90, so long as the Water System continues to procure all of its drinking water from the Great Lakes Water Authority.
112. This Agreement resolves and Government Parties hereby fully and finally release and discharge any and all claims that they may have against Plaintiffs arising out of this litigation, including any claims they may now have or have in the future for attorney fees or costs relating to this Case.
113. Except as otherwise provided in this Agreement, Plaintiffs reserve all legal and equitable remedies available to enforce the provisions of this Agreement,
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and Government Parties reserve all legal and equitable defenses to such enforcement.
114. Plaintiffs do not release any claim or remedy arising under any law other than the Safe Drinking Water Act or any claim or remedy currently pending in any other civil case including but not limited to: Mays et al. v. Snyder et al., Case No. 15-cv-14002 (E.D. Mich. Nov. 13, 2015); Mays et al. v. City of Flint et al., Case No. 16-106112 (Genesee Cty. Cir. Ct. Jan. 19, 2016); Mays et al. v. Snyder et al., Case No. 16-000017 (Mich. Ct. Cl. Jan. 15, 2016); and any other case against Government Parties in which one or more Plaintiffs may be determined to be a class member.
115. Plaintiffs and Government Parties do not waive or limit any claim, remedy, or defense, on any grounds, related to the Flint Water System’s compliance with the Lead and Copper Rule after the Termination Date. Nothing in this Agreement absolves Government Parties from any obligation to comply with the Safe Drinking Water Act and the regulations enacted thereunder.
116. For purposes of this Section IX (Release of Liability) and Section XVII (Signatories and Counterparts), the term “Plaintiffs” shall include each named plaintiff in the Case and each of their respective officers, directors, agents, representatives, attorneys, heirs, executors, and assigns.
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X. Reporting and Disclosures 117. One month and two months after the Effective Date, and then every
three months thereafter, Government Parties shall submit to Plaintiffs a status report documenting their implementation of this Agreement. The status reports shall include the following information, unless this Agreement expressly provides otherwise, including any underlying documentation or records:
a. CORE Program: i. The total number of households for which CORE staff have verified a properly installed and working Faucet Filter; ii. The total number of households that have refused to allow a CORE team to install a Faucet Filter, including, for each such household, the number, dates, and times of attempted visits to the household, and a description of the response to each attempted visit;
iii. The number of Initial Visits conducted during the Reporting Period;
iv. The number of Follow-up Visits conducted during the Reporting Period;
v. The number of residents who called the 2-1-1 helpline to make an appointment for a Visit from a CORE team during
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the Reporting Period, and the number of CORE team visits completed as scheduled appointments during the Reporting Period; vi. The total number of CORE education specialists and management staff employed during the Reporting Period; vii. For each week during the Reporting Period, the average number of CORE education specialists dispersed daily Monday through Saturday; viii. In excel format, an export of the complete set of data collected through the CORE application (app), except for the names of residents and CORE employees, documenting the CORE team’s attempted Visits to households. b. Water Delivery: i. The number of requests for bottled water delivery made each week through the Michigan 2-1-1 helpline during the Reporting Period; ii. The addresses of those residents who requested bottled water delivery through the Michigan 2-1-1 helpline during the Reporting Period; iii. The number of bottled water deliveries completed by State
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Parties during each week of the Reporting Period; iv. The number of bottled water deliveries during the Reporting
Period for which 2-1-1 failed to complete a delivery within 24 hours of receiving a request (excluding any deliveries for which an appointment was made for a later time); v. The number of households on the Access and Functional Needs list, including the number of households added to and removed from the Access and Functional Needs list during the Reporting Period; and vi. The addresses of those residents on the Access and Functional Needs list who received bottled water deliveries during the Reporting Period. c. Service Line Replacement: i. The total number of households for which a service line has been replaced since the Effective Date; ii. The number of households for which excavation was conducted or a service line was replaced, as described in Paragraph 10, during the Reporting Period, and for each household: (1) the address; (2) the material(s) of the service line confirmed or discovered; (3) whether any portion of the
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service line was replaced; (4) if any portion of the service line was replaced, a description of which portion was replaced (i.e., both, public only, or private only); and (5) if any portion of the service line was replaced, whether proper installation of a Faucet Filter after replacement was verified; iii. The number of households for which a service line replacement was refused, as described in Paragraph 15.b, during the Reporting Period, the addresses of those households, and the service line material(s) confirmed or discovered at those households; and iv. The total amount of monies reimbursed to or paid on behalf of the City pursuant to Paragraph 23 as of the last day of the Reporting Period in the following categories: (1) WIIN monies and related State Matching Funds and (2) monies other than in (1). v. A list of all requests for reimbursement or payment on behalf of the City under Paragraph 23 that have been denied in part or in full by the Michigan Department of Environmental Quality during the Reporting Period, including the amount requested, the amount denied, and the
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reason for each denial. vi. Copies of any financial or performance auditing results
obtained pursuant to Paragraph 25 or relating to the City’s use of the Allocated or Reserve Monies. d. Tap Water Monitoring: i. The results of all tap water monitoring conducted at households served by the Flint Water System during the Reporting Period, including the address of each sampling site, the service line material at each sampling site (if known), and whether the sampling site otherwise is known to qualify as a Tier 1 sampling site under 40 C.F.R. § 141.86(a)(3). e. Other: i. The results of any water quality parameter monitoring conducted for the Flint Water System during the Reporting Period; ii. Any formal communications Government Parties submitted to or received from EPA pursuant to the EPA Order during the Reporting Period. 118. Government Parties will also provide additional information,
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documents, or records related to implementation of this Agreement to Plaintiffs upon such reasonable and specific request, within 14 days of the request. This additional information may include, but is not limited to:
a. Copies of any notifications, announcements, or public advertisements related to the CORE program, service line replacement, or any requirement in this Agreement;
b. Additional, non-confidential data collected by CORE staff during household visits;
c. Addresses of any households added or removed from the Access and Functional Needs List during a Reporting Period, including the basis on which each household was added or removed; and
d. Any non-privileged documents related to a specific formal communication Government Parties submitted to or received from EPA pursuant to the EPA Order during the Reporting Period.
119. The reporting and disclosures in this Section (Section X) are in addition to, and do not supplant, the other provisions in this Agreement requiring the disclosure of information among the Parties.
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XI. Notices
120. All notices, reports, disclosures, or other communications required by
this Agreement shall reference the title, caption, and case number of this Case, and
shall be sent via certified U.S. Mail, overnight express delivery service, or
electronic means to the recipients and addresses below.
a. For Plaintiffs:
Natural Resources Defense Council ATTN: Dimple Chaudhary 1152 15th St. NW, Suite 300 Washington, DC 20005 dchaudhary@nrdc.org
Natural Resources Defense Council ATTN: Sarah Tallman 20 N. Wacker Drive, Suite 1600 Chicago, IL 60606 stallman@nrdc.org
American Civil Liberties Union Fund of Michigan ATTN: Michael Steinberg 2966 Woodward Avenue Detroit, MI 48201 msteinberg@aclumich.org
b. For State Parties:
Michigan Department of Attorney General ATTN: Richard S. Kuhl 525 W. Ottawa Street P.O. Box 30755 Lansing, MI 48909 kuhlr@michigan.gov
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Michigan Department of Environmental Quality ATTN: George Krisztian 525 West Allegan Street P.O. Box 30473 Lansing, MI 48909-7973
c. For City Defendants:
City of Flint ATTN: City Administrator Sylvester Jones 1st Floor, City Hall 1101 S. Saginaw Street Flint, MI 48502
City of Flint Department of Law ATTN: William Y. Kim 1101 S. Saginaw St. Flint, MI 48502 wkim@cityofflint.com
121. Any Party may change its designated recipient(s) and/or address(es)
by providing written notice of such change to all other Parties.
122. Unless otherwise provided by this Agreement, any notices, reports,
disclosures, or other communications required by this Agreement shall be deemed
submitted upon deposit with an overnight express delivery service, e-mailing, or
mailing.
XII. Attorney Fees and Costs
123. Within 60 days of the Effective Date, State Parties will pay Plaintiffs
eight hundred ninety five thousand dollars ($895,000) in litigation costs (including
attorneys’ fees and expert costs), in accord with instructions provided by Plaintiffs’
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counsel. 124. This payment shall fully and finally release, discharge, and satisfy any
claim by Plaintiffs to litigation costs (including attorneys’ fees and expert costs) incurred in this Case and incurred in enforcing this Agreement through the Termination Date. XIII. Dispute Resolution and Judicial Enforcement
125. This Agreement provides for dispute resolution, which is the sole and exclusive mechanism to resolve disputes and disagreements arising under this Agreement, except where specifically stated otherwise. Except as provided for in this Agreement, the Parties may not otherwise petition the Court for relief for violations of this Agreement, or bring a new action for breach of this Agreement.
126. The Parties stipulate that the Court has jurisdiction to enforce the terms of this Agreement.
127. The Parties will make all reasonable efforts to resolve disputes and disagreements regarding the meaning of, compliance with, and/or implementation of this Agreement informally and in good faith prior to seeking any relief from the Court.
128. If a Party has a dispute concerning the meaning of, compliance with, and/or implementation of this Agreement, that Party will send written notice to all other Parties specifying the nature of the dispute.
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129. Within 14 days of the date of the transmission of written notice under Paragraph 128, the Parties will meet and confer in a good faith attempt to resolve the dispute without soliciting the Court’s involvement. As part of the meet and confer, the Parties will comply with reasonable requests from another Party or Parties for information and documents related to the dispute, and will, upon request by another Party or Parties, provide reasonable access to client representatives with knowledge related to the dispute.
130. If the Parties are unable to resolve any dispute or disagreement pursuant to Paragraphs 125-129, any Party or Parties may file a motion with the Court to enforce this Agreement. Any Party that intends to file a motion to enforce the Agreement must provide all other Parties with written notice of such intent at least 7 days prior to filing any such motion. XIV. Force Majeure
131. A Party’s obligation to comply with one or more provisions of this Agreement will be deferred for the duration of a delay in compliance caused by force majeure or impossibility. For purposes of this Agreement, “force majeure” includes any war, fire, earthquake, flood, or other natural disaster, any restraint by court order, or public authority, or any labor strike, work stoppage, contractor delay, or lack of availability of services that could not have been reasonably foreseen and prevented by the Party’s exercise of due diligence. “Impossibility”
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means an event or circumstances beyond the Party’s reasonable control that precludes timely compliance with one or more provisions of the Agreement and that could not have been reasonably foreseen and prevented by the Party’s exercise of due diligence. “Due diligence” includes anticipating and/or addressing the effects of any force majeure or impossibility to prevent or minimize any resulting delay or non-compliance.
132. Any delay in compliance caused by a Party’s failure to make all reasonable efforts to comply with the terms of this Agreement will not be considered to be circumstances beyond that Party’s control.
133. Any delay in a Party’s compliance with a specific provision of this Agreement due to force majeure or impossibility will not excuse or delay compliance with any other terms of this Agreement that are unaffected by the force majeure or impossibility.
134. A Party that seeks to claim force majeure or impossibility (a “Claiming Party”) will provide written notice to all other Parties (“Notified Parties”) within 14 days of the date that the Claiming Party first knew, or by the exercise of due diligence should have known, that an event or circumstance caused or will cause a delay in compliance with this Agreement. For purposes of the obligations under Paragraphs 19-20 only, the City must provide such written notice within 45 days. The notice will describe the reason for the anticipated non-
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compliance and specifically refer to this Section of the Agreement. The notice will also describe, to the extent known, the anticipated length of time the delay is expected to persist, the cause or causes of the delay, the measures taken or to be taken by the Claiming Party to prevent or minimize delay, the schedule by which those measures will be implemented, and the anticipated date of compliance.
135. Each Notified Party will provide written notice to all Parties of its position regarding the Claiming Party’s assertion of force majeure or impossibility within 14 days of receipt of written notice under Paragraph 134.
136. If the Notified Parties agree that any delay or impediment to performance has been or will be caused by force majeure, the Parties will agree in writing to a reasonable modification of all requirements affected by the force majeure or impossibility.
137. If any Notified Party disagrees with any notice served by a Claiming Party under Paragraph 134 or the explanation of force majeure or impossibility therein, or if the Parties cannot agree on new terms for compliance, any Party may invoke the dispute resolution procedures described in Section XIII. XV. Modification
138. The Parties may, subject to Court approval, modify the terms of this Agreement by written agreement. The Parties shall file a joint stipulation and notice to the Court for any such modification. Upon the reasonable request of any
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Party, the Parties will jointly request expedited consideration of such joint stipulation and notice from the Court. No modification of this Agreement may be made absent joint stipulation of all the Parties and a Court order. XVI. Dismissal and Waiver of Appeal
139. The Parties agree that the Court has jurisdiction over this Case pursuant to 42 U.S.C. § 300j-8 and 28 U.S.C. § 1331. The Parties will submit a stipulation of dismissal with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2), in the form attached as Exhibit J. The Parties’ stipulation is contingent on the Court’s entry of an order first incorporating the terms of this Agreement and retaining jurisdiction to enforce the terms of this Agreement until the Termination Date. If the Court declines to incorporate the terms of this Agreement or retain such jurisdiction, this Agreement is not effective and any stipulation of dismissal is null and void.
140. All Parties to this Agreement consent to enforcement of this Agreement in the Court and under the terms set forth in the Agreement. All Parties waive any jurisdictional challenges to the Court’s exercise of jurisdiction to enforce the Agreement. Notwithstanding this paragraph, State Parties only waive any applicable Eleventh Amendment immunity to the extent necessary to enforce this Agreement.
141. All Parties agree that the Court’s incorporation of this Agreement into
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an order dismissing this Case with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2) shall supersede the relief ordered in the Court’s preliminary injunction order of November 10, 2016, ECF No. 96, and supersede all relief previously ordered in this Case.
142. No appeal shall be taken from the Court’s incorporation of this Agreement into an order dismissing this Case with prejudice pursuant to Federal Rule of Civil Procedure 41(a)(2). This provision does not preclude any Party from appealing a subsequent order of the Court.
143. Within 3 business days of the Effective Date, State Defendants will file a motion pursuant to Federal Rule of Appellate Procedure 42(b) to dismiss their appeal currently pending before the U.S. Court of Appeals for the Sixth Circuit, Case No. 16-2628. Plaintiffs and City Defendants agree not to oppose that motion. XVII. Signatories and Counterparts
144. Each signatory to this Agreement certifies that he or she is fully authorized to enter into this Agreement, to agree to its terms and conditions, and to execute and legally bind the Party he or she represents.
145. This Agreement may be executed in counterparts. XVIII. Integration Clause
146. This Agreement constitutes the final, complete, and exhaustive
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agreement and understanding between the Parties, and supersedes all prior agreements and understandings, whether oral or written, with respect to this Case. No other document, nor any representation, agreement, understanding, or promise is part of this Agreement, nor may such be used in construing the terms of this Agreement.
147. This Agreement was jointly drafted by the Parties. The Parties accordingly agree that any and all rules of construction to the effect that ambiguity is construed against the drafting party shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Agreement. [signature pages to follow]
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For Plaint~fft: Date:~3~gyc~ 2o(~

________________
Pastor Allen C. Overton Concerned Pastors for Social Action 2200 Forrest Hill Flint, MI 48504
Plaint(ffRepresentative

Date: 3~3 I7

____________________
Pastor /lfred t. Harris
Concerned Pastors for Social Action 2200 Forrest Hill Flint, MI 48504
Plaint~ffRepresentative

Date: _______________

______________________________ Melissa Mays 3714 Beecher Road Flint, MI 48503
Plain4ff

Date:

_________________________________ Rhea Suh President Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 289-2415
Plain4ffRepresentative

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2:16-cv-10277-DML-SDD Doc # 147-1 Filed 03/27/17 Pg 90 of 92 Pg ID 7438

For City Defendants: Date: ~. Date:
Date:

- 4~..A.. .~
Dr Karen W. Weaver ayor of City of Flint
1101 South Saginaw Street Flint, MI 48502
Defendant Representativefor City ofFlint
Sylvester Jones City Administrator for the City of Flint 1101 S. Saginaw Street Flint, MI 48502
Defendant and Defendant Representativefor City ofFlint
Approved as to fonn:
A~ela Whe er Chief Legal Officer City of Flint Department of Law 1101 S. Saginaw Street, 3rd Floor Flint, MI 48502 (810) 766-7146 awheeler~cityofflint. corn
Counselfor City Defendants

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 Case 2:16-cv-10277-DML-SDD ECF No. 192 filed 09/10/18 PageID.9835 Page 1 of 2

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

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

Plaintiffs, v.

Case Number 16-10277 Honorable David M. Lawson

NICK A. KHOURI, FREDERICK HEADEN, MICHAEL A. TOWNSEND, JOEL FERGUSON, MICHAEL A. FINNEY, SYLVESTER JONES, and CITY OF FLINT,

Defendants. /

ORDER ON PLAINTIFFS’ MOTION TO ENFORCE PARAGRAPHS 38 AND 117 OF THE SETTLEMENT AGREEMENT

Based on the stipulation of the parties [dkt. #191],

It is ORDERED that:

1. Beginning on September 12, 2018, the City will complete all attempts to verify

proper filter installation, as described in Paragraph 38 of the Settlement Agreement [dkt. #147-1],

within three business days of service line replacement. Business days include weekdays and

Saturdays, but not federal holidays.

2. The City will provide Plaintiffs with weekly filter verification reports beginning the

second Wednesday after entry of this Order, produced in Excel spreadsheets using a consistent

format. Each weekly report will include information for the seven-day period starting two

Wednesdays before the date of the report. The reports will include, at a minimum, the address of

each household visited, the date and time of each filter verification attempt, and a brief description

Case 2:16-cv-10277-DML-SDD ECF No. 192 filed 09/10/18 PageID.9836 Page 2 of 2
of what occurred. The brief description will consist of the applicable selection from a list of narrative descriptions agreed upon in advance by Plaintiffs and the City.
3. The City will submit to Plaintiffs no later than two weeks after entry of this Order an explanation of the cause(s) of the discrepancies in data disclosures identified by Plaintiffs in their reply brief and any changes the City has made or will make to ensure that similar discrepancies do not recur.
s/David M. Lawson DAVID M. LAWSON United States District Judge Date: September 10, 2018
PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on September 10, 2018.
s/Susan K. Pinkowski SUSAN K. PINKOWSKI
- 2 -

 
 2:16-cv-10277-DML-SDD Doc # 155 Filed 12/27/17 Pg 1 of 32 Pg ID 7688

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CONCERNED PASTORS FOR SOCIAL ACTION, et al.,
Plaintiffs, v.

Case No. 16-10277 Hon. David M. Lawson

NICK A. KHOURI, et al.,

Mag. J. Stephanie Dawkins Davis

Defendants. /

PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT

Plaintiffs Concerned Pastors for Social Action, Melissa Mays, American

Civil Liberties Union of Michigan, and Natural Resources Defense Council

respectfully move the Court to order relief necessary to ensure the City of Flint’s

and City Administrator’s immediate compliance with the Settlement Agreement

ordered by the Court on March 28, 2017. See ECF Nos. 147-1, 147-2, 152.

Counsel for Plaintiffs communicated with opposing counsel in accordance

with Local Rule 7.1(a) explaining the nature of the relief sought in this motion and

seeking concurrence in the relief. Defendants oppose the motion.

Dated: December 27, 2017

Respectfully submitted,

/s/ Dimple Chaudhary___________ Dimple Chaudhary Jared E. Knicley Natural Resources Defense Council

/s/ Michael J. Steinberg__________ Michael J. Steinberg (P43085) American Civil Liberties Union Fund of Michigan

2:16-cv-10277-DML-SDD Doc # 155 Filed 12/27/17 Pg 2 of 32 Pg ID 7689

1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 289-2385 dchaudhary@nrdc.org jknicley@nrdc.org
Sarah C. Tallman Natural Resources Defense Council 20 North Wacker Drive, Suite 1600 Chicago, IL 60606 (312) 651-7918 stallman@nrdc.org

2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org
Counsel for Plaintiff American Civil Liberties Union of Michigan

Counsel for Plaintiffs Concerned Pastors for Social Action, Melissa Mays, and Natural Resources Defense Council, Inc.

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2:16-cv-10277-DML-SDD Doc # 155 Filed 12/27/17 Pg 3 of 32 Pg ID 7690

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CONCERNED PASTORS FOR SOCIAL ACTION, et al.,
Plaintiffs, v.

Case No. 16-10277 Hon. David M. Lawson

NICK A. KHOURI, et al.,

Mag. J. Stephanie Dawkins Davis

Defendants. /

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION TO ENFORCE SETTLEMENT AGREEMENT

2:16-cv-10277-DML-SDD Doc # 155 Filed 12/27/17 Pg 4 of 32 Pg ID 7691
TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii CONCISE STATEMENT OF THE ISSUE PRESENTED......................................iv CONTROLLING AUTHORITY...............................................................................v INTRODUCTION .....................................................................................................1 STATEMENT OF FACTS ........................................................................................2 I. The Court-ordered Settlement Agreement ......................................................2 II. The City’s status reports and disclosures under Paragraphs 117 and 118 ......4
A. Failure to report information verifying filter installations following service line replacements......................................................6
B. Failure to adequately maintain and disclose the Refusal List .............. 9 C. Failure to timely provide information concerning
Paragraph 85 compliance ....................................................................12 III. Dispute resolution pursuant to the Agreement ..............................................14 STANDARD OF REVIEW .....................................................................................14 ARGUMENT ...........................................................................................................15 I. The City is violating the Settlement Agreement ...........................................15 II. The City’s violations frustrate implementation of the Agreement............... 16 III. Further action by the Court is necessary to enforce the Agreement ............ 20 CONCLUSION ........................................................................................................22 CERTIFICATE OF SERVICE ................................................................................24
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TABLE OF AUTHORITIES
CASES
Berger v. Heckler, 771 F.2d 1556 (2d Cir. 1985) ..................................................................15, 20
District of Columbia v. Potomac Elec. Power Co., 826 F. Supp. 2d 227 (D.D.C. 2011)...............................................................21
Frew ex rel. Frew v. Hawkins, 540 U.S. 431 (2004).......................................................................................15
Ohio Valley Envtl. Coal., Inc. v. Apogee Coal Co., 744 F. Supp. 2d 561 (S.D.W. Va. 2010) .......................................................19
Pedreira v. Sunrise Children’s Servs., Inc., 802 F.3d 865 (6th Cir. 2015) .........................................................................14
Putnam v. Oakland Unified Sch. Dist., 980 F. Supp. 1094 (N.D. Cal. 1997)..............................................................21
Roman v. Korson, 307 F. Supp. 2d 908 (W.D. Mich. 2004) .......................................................15
Shillitani v. United States, 384 U.S. 364 (1966).......................................................................................15
Shy v. Navistar Int’l Corp., 701 F.3d 523 (6th Cir. 2012) .........................................................................15
Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013 (6th Cir. 1994) .........................................................................15
Waste Mgmt. of Ohio, Inc. v. City of Dayton, 32 F.3d 1142 (6th Cir. 1997) .........................................................................15
Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084 (6th Cir. 2016) .......................................................................15
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Williams v. Vukovich, 720 F.2d 909 (6th Cir. 1983) .........................................................................14
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CONCISE STATEMENT OF THE ISSUE PRESENTED The City of Flint and City Administrator have repeatedly failed to comply with the requirements in a court-ordered Settlement Agreement to submit timely, accurate, and complete status reports to Plaintiffs and to respond to Plaintiffs’ reasonable requests for information relating to the Agreement’s implementation. Should the Court enforce the Settlement Agreement by ordering the City and City Administrator to take additional, specific actions to comply with their obligations under the Agreement?
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CONTROLLING AUTHORITY Shy v. Navistar Int’l Corp., 701 F.3d 523 (6th Cir. 2012) Waste Mgmt. of Ohio, Inc. v. City of Dayton, 132 F.3d 1142 (6th Cir. 1997)
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INTRODUCTION In March 2017, following extensive mediation, Plaintiffs, the City of Flint, State Defendants, and the State of Michigan agreed to resolve this Safe Drinking Water Act citizen suit through a court-ordered Settlement Agreement. In that Agreement, the City of Flint and City Administrator (together, the City) committed to, among other things, replace thousands of lead service lines in Flint within three years. The Agreement also requires the City to work with the State to ensure that Flint residents have access to safe tap water through properly installed and maintained faucet filters. The City must document compliance with its obligations by providing periodic status reports to Plaintiffs and timely responding to Plaintiffs’ reasonable requests for other information relating to the Agreement’s implementation. These information-sharing requirements are critical to ensuring that Plaintiffs—and ultimately the Court—can hold the City accountable to its commitments under the Agreement. For nine months, the City has consistently violated the Agreement’s disclosure provisions. The City has repeatedly provided late, incomplete, and inaccurate status reports. See infra pp. 4-12. And it has routinely dragged its feet in responding to Plaintiffs’ basic and concrete questions about how the City keeps records on its compliance and who maintains them. See infra pp. 4-13. These delays and inaccuracies have masked violations of the Agreement’s
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other terms by making it more difficult and resource-intensive to identify those violations and their causes. Plaintiffs cannot ensure that Flint residents receive the full benefits of the Agreement, including protections designed to reduce exposure to lead in drinking water, if the City does not provide correct, timely, and complete information about its compliance efforts.
In view of the magnitude of judicial resources the Court has devoted to this case, Plaintiffs do not seek additional relief lightly. Plaintiffs have attempted to resolve these issues with the City through countless letters, emails, and conferences, and repeated requests for the same information. But the City simply refuses to comply with its disclosure obligations, which makes it impossible for Plaintiffs to monitor compliance with the rest of the Agreement. Plaintiffs therefore respectfully request that the Court order the City to employ a more robust reporting and certification process, overseen by the Court, to address the systemic deficiencies in its collection and disclosure of information under the Agreement.
STATEMENT OF FACTS I. The Court-ordered Settlement Agreement
On March 28, 2017, the Court approved a Settlement Agreement resolving this case. Order Approving Settlement Agmt. & Dismissing Case 2, ECF No. 152. In doing so, the Court issued an order incorporating the Agreement in full, retaining jurisdiction to enforce it, and dismissing the case with prejudice. Id.
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The Agreement provides short- and long-term relief to Flint residents to help address lead contamination in the City’s tap water. For long-term relief, the Agreement requires the City to conduct excavations to determine the service line composition at 18,000 Flint households, and to replace those service lines confirmed to be lead or galvanized steel. Settlement Agmt. (Agmt.) ¶¶ 8-20, ECF No. 147-1. To ensure that as many residents as possible participate in the service line replacement program, the City must track the addresses at which residents refuse to grant the City permission to replace their service lines. Id. ¶ 16. This recordkeeping requirement is important: if followed, it enables Plaintiffs to conduct outreach to residents who refuse service line replacement, to understand and ideally resolve any concerns the residents may have about removing their lead or galvanized steel service lines. See Chaudhary Decl. Ex. W at 1-2.
The Agreement also includes a faucet filter services program designed to protect drinking water in the short term, while pipe replacements are ongoing. See Agmt. ¶¶ 38, 66-92. The State,1 through its Community Outreach and Resident Education (CORE) program, must periodically visit homes in Flint through 2018 to provide filter education, installation, and maintenance services. See id. To ensure that CORE staff can promptly visit households with new residents, the Agreement
1 Plaintiffs refer to State Defendants, the State of Michigan, and the Michigan Department of Environmental Quality collectively as “the State.”
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provides that the City “shall notify CORE staff of any new Flint Water System customer within 30 days after activation of a new water account for the customer’s household.” Id. ¶ 85. In addition, to protect residents from lead spikes that may occur immediately following service line replacement, Chaudhary Decl. Ex. I at 2, the Agreement requires the City and State to make good-faith efforts to ensure “that each household has a properly installed Faucet Filter immediately after its service line replacement is complete.” Agmt. ¶ 38.
The Agreement further contains a series of disclosure requirements to allow the parties to monitor compliance with its provisions. The City must provide status reports to Plaintiffs one month and two months after the Agreement becomes effective, and every three months thereafter. Id. ¶ 117. The status reports must include, among other information: (i) the total number of service lines replaced since March 28, 2017; (ii) for each household at which a service line was replaced, “whether proper installation of a Faucet Filter after replacement was verified”; and (iii) the number and addresses of households at which the resident refused service line replacement. Id. ¶ 117.c.i-iii. The City must also provide “additional information, documents, or records related to implementation of th[e] Agreement” within fourteen days of a reasonable and specific request from Plaintiffs. Id. ¶ 118. II. The City’s status reports and disclosures under Paragraphs 117 and 118
Since the Agreement went into effect, the City has established a pattern of
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nonresponsiveness, delay, and noncompliance with the Agreement’s informationsharing provisions. The City has repeatedly failed to provide timely, complete, and accurate status reports. It routinely delays responding to Plaintiffs’ basic questions about how it maintains records concerning its compliance, requiring Plaintiffs to ask repeatedly—often over the course of months—for the same information. Plaintiffs’ attempts to work with the City to implement the Agreement have revealed that the City is not undertaking adequate efforts to ensure that relevant City staff both understand the Agreement’s obligations and track the information they are required to report. As a result, Plaintiffs cannot know whether the City is administering the Agreement’s pipe replacement program in a comprehensive and health-protective way.
Plaintiffs focus here on three examples of the City’s inadequate reporting and information-sharing to illustrate this systemic and recurring noncompliance: (A) verifying filter installations at Flint homes following service line replacements; (B) maintaining a list of addresses at which residents have refused to grant the City permission to replace their service lines; and (C) timely notifying CORE staff of new water system customers so that CORE can promptly provide filter services. But these are only a few instances of the City’s troubling approach to tracking and reporting information required by the Agreement. See, e.g., Chaudhary Decl. Exs. F at 3, J at 3, K at 2, L at 3; Tallman Decl. ¶ 3 (documenting the City’s five-month
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delay in posting a form on its webpage to allow residents to opt-in to the pipe replacement program online and Plaintiffs’ repeated requests for information documenting compliance); Chaudhary Decl. Exs. F at 1, J at 2, K at 1, L at 2, M at 1, R at 4-5 (detailing Plaintiffs’ repeated requests over months for documentation concerning the City’s recordkeeping relating to its obligation to maintain a list of abandoned homes ineligible for pipe replacement); id. Exs. L at 3, P, R at 3, T-V (documenting the City’s more than two-month delay in responding to Plaintiffs’ repeatedly asked basic question of whether the City or its contractors are tracking the dates on which residents refuse pipe replacement).
A. Failure to report information verifying filter installations following service line replacements
The Agreement requires the City and State to work together to ensure that faucet filters are installed “immediately” after pipe replacements are complete and to document compliance with this filter-verification requirement. Agmt. ¶¶ 38, 117.c.ii.5.2 Although Plaintiffs raised this issue at least eight separate times in writing over four months, Chaudhary Decl. Exs. B, D, E, F at 5-6, I, J at 3, L at 4, M, the City’s nonresponsiveness and incomplete reporting have prevented Plaintiffs from verifying whether this term of the Agreement is being fully
2 Paragraph 117 imposes reporting obligations on Government Parties collectively, giving the City and State flexibility to coordinate with each other to determine which party will report each piece of required information. Agmt. ¶ 117.
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implemented. The City’s first status report was both late and inaccurate. The City did not
submit its report by the Agreement’s April 28, 2017 deadline, and it incorrectly reported that zero service lines had been replaced between March 28 and April 28, 2017. Id. Exs. B, C. Plaintiffs subsequently notified the City that, based on visual observations in Flint in mid-April, at least some service lines had been replaced during the reporting period. Id. Ex. D. Plaintiffs asked the City to revise its report to accurately disclose information about pipe replacements during the reporting period, including whether the City or State had verified that a filter had been properly installed at each household where a service line was replaced, as required under the Agreement. Id. After the City did not respond within the two weeks provided under the Agreement, Plaintiffs repeated their request that the City revise its status report to fix its inaccuracies. Id. Ex. F at 6.
Plaintiffs continued to pursue this issue because the City’s nonresponsiveness suggested it was not complying with the filter-installation requirements in Paragraph 38. Agmt. ¶ 38. Indeed, at a May 18 meeting, the City indicated that officials were communicating with CORE staff approximately once every two weeks about the addresses at which pipe replacements had occurred, Chaudhary Decl. Ex. F at 5, meaning that homes could be unprotected from lead spikes that can occur immediately following pipe replacement. The day after that
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meeting, Plaintiffs sent a letter to both the City and State seeking additional clarification on when and how the City was coordinating with CORE. Id. Ex. E.
It wasn’t until four weeks after Plaintiffs’ initial request for the service line replacement and filter-verification data that the City provided a partial response (submitted with its next status report on May 30). Id. Ex. G at 1 n.1 (reporting the number of pipe replacements completed since March 28). However, the status report was also incomplete, because it failed to include any information about whether the City or State had verified that a filter had been properly installed at each of the nearly 400 homes where service lines had been replaced during the reporting period. Id. at 1 n.2. Despite being on notice for a month that this required information was missing from the City’s disclosures, the City’s report stated only that, “[t]o the best of the City’[s] knowledge, the [Department of Environmental Quality] is tracking this data and dispatching CORE staff” to install the filters. Id.3
Following receipt of this report, Plaintiffs repeated their request that the City provide information concerning verification of filter installations, and emphasized the need to “coordinate” with the State to ensure that Government Parties report
3 In contrast, the State’s status reports state that the City will report the filterverification information required under Paragraph 117.c.ii.5. E.g., Chaudhary Decl. Ex. A at 3. And, although the State wrote on May 26 that CORE staff were scheduling filter services visits “within 24 hours of the State receiving notice” that a pipe replacement had been completed, the State did not confirm whether the City was providing sufficient notice to CORE of pipe replacement completions to facilitate “immediate” filter installation following replacement. See id. Ex. DD.
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the required information. Id. Exs. I, J at 3-4. On July 10, nearly two months after Plaintiffs requested the information, the City stated that “CORE has been given access to the City’s [lead service line] replacement database and is able to conduct visits to ensure that each household has a properly installed faucet filter.” Id. Ex. K at 2. The City did not include any data or records documenting whether the City or State had timely verified filter installations at the homes at which pipe replacements had been completed.
Plaintiffs raised the issue of the City’s failure to report the required filterverification data again on August 4, and yet again on August 23. See id. Exs. L at 4, M. On August 28, three months after Plaintiffs first notified the City that this reporting information was missing, the City provided the filter-verification data with its third status report. Id. Ex. N at 1 n.1 (noting attachment of data to status report). However, the City’s next status report (submitted in December 2017) again failed to contain the required information. See id. Ex. Z. The report stated again that, “[t]o the best of the City’s knowledge, the [State] is tracking this data and dispatching CORE staff” to install filters. Id. at 1 n.1. To date, Plaintiffs still have not been able to verify whether filter installations after pipe replacements are being tracked comprehensively in accordance with the terms of the Settlement.
B. Failure to adequately maintain and disclose the Refusal List Plaintiffs are also unable to confirm that the City is providing complete and
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accurate information regarding residents that have refused to grant the City permission to replace their service lines. See Agmt. ¶ 117.c.iii. On May 18, the City stated that it had not yet prepared a list of addresses at which residents had refused pipe replacement (the Refusal List), as required under the Agreement. Chaudhary Decl. Ex. F at 3; Agmt. ¶ 16. Although the Agreement had been in place for nearly six weeks, the City did not yet have a plan for how it would systematically collect refusal addresses and dates from its contractors and maintain an up-to-date list of such addresses. Tallman Decl. ¶ 2. On May 25, Plaintiffs requested under Paragraph 118 that the City provide an update with documentation demonstrating its compliance with this obligation. Chaudhary Decl. Ex. F at 3, 6. The City did not respond within the fourteen-day deadline. Id. Ex. J at 1-2 & n.1. Six weeks after Plaintiffs’ request, the City responded with a single sentence: “The City’s [lead service line] contractors have been asked to collect this information, and the City has received spreadsheets with this data from two of the City’s contractors.” Id. Ex. K at 2. But the City has more than two contractors.
Because the City’s belated response did not indicate that the City was maintaining a complete and up-to-date Refusal List, on August 4, Plaintiffs requested that the City provide an “update documenting the City’s compliance” with this obligation. Id. Ex. L at 3. After the City failed to respond within fourteen days, on August 23, Plaintiffs initiated the Agreement’s dispute resolution
10

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procedures. Id. Ex. M. On September 13, four months after Plaintiffs initially raised this issue, the City reported that its contractors had been directed to provide information concerning the addresses at which residents had refused service line replacement, but that “[c]onfirmation (and/or corrections, if any)” concerning the completeness and accuracy of information provided to date “has not yet been received.” Id. Ex. S at 2, see id. Ex. R at 3.
Moreover, the limited disclosures the City did provide during this correspondence were inaccurate. The City purported to provide the Refusal List with its May status report; that list included 29 addresses at which residents had refused service line replacement. (Fewer than 400 replacements were completed during the reporting period.) Id. Exs. G, H. The City provided the same list of 29 addresses with its August status report, meaning that the City reported that no additional residents had refused replacement during the preceding three months, notwithstanding a large ramp-up in the pace of pipe replacements. (More than 3000 additional pipe replacements were completed during the reporting period.) Id. Exs. N, O. These reports suggested inadequacies in the City’s recordkeeping.
Plaintiffs confirmed these inadequacies after they conducted outreach to the residents on the City’s purported Refusal List. Id. Ex. W. Plaintiffs discovered that at least 13 of the 29 residents reported either that they had a copper service line, and thus were ineligible for pipe replacement, or that they had not declined service
11

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line replacement. Id. Following discussions with the City, Plaintiffs learned that the Refusal List the City provided with its prior status reports was inaccurate, and was both under-inclusive (it excluded some homes at which residents had affirmatively refused pipe replacement) and over-inclusive (it included addresses where residents had not refused pipe replacement). Id. ¶¶ 26-27.
After months of negotiation, Plaintiffs finally obtained on December 6 what the City claims is an updated copy of the Refusal List. Id. Ex. AA. But that list appears to have been last updated on October 26, nearly six weeks before the City provided the list. Id. (column labeled “Date of Last Update”). Questions remain about whether this latest Refusal List is complete and up to date, and whether the City is complying with its obligation to “maintain records sufficient to comply with the reporting and disclosure requirements under the Agreement.” Agmt. ¶ 36.
C. Failure to timely provide information concerning Paragraph 85 compliance
For four months, the City ignored Plaintiffs’ requests for information documenting its compliance with the Agreement’s requirement to “notify CORE staff of any new Flint Water System customer within 30 days after activation of a new water account.” Agmt. ¶ 85. As of May 18, six weeks after the Agreement went into effect, the City was not complying with this term, and was not tracking new water accounts for purposes of complying with the Agreement. Chaudhary Decl. Ex. F at 5-6. On May 25, Plaintiffs asked the City to provide information
12

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documenting its compliance with the requirement. Id. at 6. The City did not respond to the request within fourteen days, by June 8. Id. Ex. J at 3-4.
On June 16, Plaintiffs repeated their information request. Id. The City did not respond until July 10, more than six weeks after Plaintiffs’ initial request, and again confirmed that it did not have a system to notify CORE staff of new water accounts. See id. Ex. K at 3 (stating the City is “confirming” to whom it should send the new accounts list). Plaintiffs followed up on August 4 to again request the City’s compliance with Paragraph 85 and documentation of that compliance. See id. Ex. L. The City did not respond within fourteen days. Id. Ex. M at 1. Plaintiffs discussed this issue with the City on September 6, and again repeated their request for documentation by letter on September 8. Id. Ex. R at 2. Four months after Plaintiffs notified the City about this noncompliance, and after repeated delays in responding to requests for updates, the City provided documentation showing its correspondence with CORE staff about new water accounts. Id. Ex. S.
Although the City has since documented its compliance with this requirement, Plaintiffs had to follow up with the City more than five times over the course of months to resolve this issue. As the list of new accounts the City disclosed in September shows, there were more than 600 new water customers between March 28 and July 6, 2017, the first time the City provided the list to CORE staff. Id. Ex. Q (see “TOTAL” at end of list). During the City’s months-
13

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long period of noncompliance, CORE teams may have been unable to promptly visit residents at these addresses to ensure that they had properly installed filters. III. Dispute resolution pursuant to the Agreement
Over the past nine months, Plaintiffs have initiated the Agreement’s dispute resolution process several times to raise and address concerns with the City’s compliance with the Agreement’s disclosure and reporting requirements. Id. Exs. M, X. Most recently, on December 1, 2017, Plaintiffs sent the notice required under Paragraph 128 describing disputes over the City’s violations of Paragraphs 117 (status reports) and 118 (information requests). Id. Ex. Y. Plaintiffs proposed modifications to the Agreement to improve information sharing among the parties and increase accountability for meeting the Agreement’s deadlines. Id. Ex. BB. The parties then conferred by phone in a good-faith attempt to resolve the dispute, but were unable to do so. Id. ¶¶ 32, 34.
STANDARD OF REVIEW The Court’s order incorporating the Agreement is a consent decree. See Pedreira v. Sunrise Children’s Servs., Inc., 802 F.3d 865, 871 (6th Cir. 2015). The Court both “expressly retained jurisdiction to enforce compliance with the settlement’s terms” and “incorporat[ed] the settlement” into its dismissal order. Id.; Order 2, ECF No. 152. As a consent decree, the order “operate[s] as an injunction,” Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir. 1983), which “compels the
14

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approving court to . . . protect the integrity of the decree with its contempt powers.” Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1018 (6th Cir. 1994); see Waste Mgmt. of Ohio, Inc. v. City of Dayton, 132 F.3d 1142, 1146 (6th Cir. 1997) (courts “have a duty to enforce” their consent decrees).
The Court thus has the authority to remedy violations of the Agreement: “Federal courts are not reduced to approving consent decrees and hoping for compliance. Once entered, a consent decree may be enforced.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 440 (2004); see also Shillitani v. United States, 384 U.S. 364, 370 (1966); Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084, 1095 (6th Cir. 2016). The court “has broad equitable remedial powers” when enforcing a consent decree. Shy v. Navistar Int’l Corp., 701 F.3d 523, 533 (6th Cir. 2012) (internal quotation marks omitted). It “may take such steps as are appropriate given the resistance of the noncompliant party,” Berger v. Heckler, 771 F.2d 1556, 1569 (2d Cir. 1985), including ordering “additional affirmative conduct” not required by the underlying order, Roman v. Korson, 307 F. Supp. 2d 908, 919 (W.D. Mich. 2004).
ARGUMENT I. The City is violating the Settlement Agreement
The City’s failure to submit timely, complete, and accurate status reports is a plain violation of Paragraph 117 of the Agreement. That section sets forth clear deadlines for the City to submit its status reports as well as requirements for their
15

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content. Agmt. ¶ 117. To date, all of the City’s status reports have been late, incomplete, inaccurate, or a combination thereof. See supra pp. 4-12. Only after Plaintiffs’ repeated prompting, phone calls, and correspondence has the City sometimes disclosed the required information, and even then the accuracy of the disclosures has been questionable. See supra pp. 4-12.
The City is similarly violating Paragraph 118. The examples described above include more than ten violations of the City’s obligation to respond to requests for information within fourteen days. The City is not exercising diligence in responding to Plaintiffs’ reasonable requests for information necessary to enforce the Agreement. II. The City’s violations frustrate implementation of the Agreement
The City’s violations are not merely procedural or formalistic. They frustrate the very purpose of the Agreement by impeding Plaintiffs’ ability to monitor and enforce its other terms. Without the disclosures required by the Agreement, Plaintiffs cannot verify that the City is replacing Flint’s service lines in a comprehensive and health-protective way, or that it is adequately coordinating with the CORE program to ensure all Flint residents have properly installed filters that effectively remove lead.
The City, for example, must work with the State to confirm that filters are installed after each service line replacement. Agmt. ¶ 117.c.ii.5. Plaintiffs
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requested this disclosure to ensure residents are protected during the critical period immediately after pipe replacement, when there is an elevated risk of exposure to lead in drinking water. Chaudhary Decl. Ex. CC at 14. The City’s repeated failure to report this information or to coordinate with the State on the status of the filter installations means that Plaintiffs do not know whether residents are being protected from a serious health harm. See generally Lanphear Decl., ECF No. 27-9.
Similarly, the City must include in its status reports the number and addresses of households that have refused pipe replacement. Agmt. ¶ 117.c.iii. The purpose of this provision is to track the health risk posed by the remaining lead and galvanized steel service lines in Flint and to allow Plaintiffs to conduct community outreach to encourage more residents to allow the City to replace their pipes. After omitting the information from its first status report and ignoring repeated requests from Plaintiffs under both Paragraphs 117 and 118, the City finally reported—five months after the Agreement went into effect—that 29 residents had refused replacement. See supra pp. 9-11. Plaintiffs then spent considerable time and resources contacting those residents, only to learn that the City’s disclosure was not accurate and most of those residents should not be on the Refusal List. The City did not even attempt to correct its mistake until Plaintiffs brought it to the City’s attention. Supra pp. 11-12. Because of the City’s poor recordkeeping, for eight months, Plaintiffs have been unable to reach out to residents to discuss their
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refusal to participate in the replacement program. These residents are not receiving the benefits they are owed under the Agreement.
In the same way, for months, the City ignored its obligation to notify CORE staff at least monthly of new water system customers. Agmt. ¶ 85; see supra pp. 12-13. Through in-person meetings, letters, calls, and emails, Plaintiffs repeatedly requested that the City immediately comply with this obligation by sending a list of new water accounts to CORE at least every 30 days. Providing each Flint resident with filter installation and education services is critical to protect residents from lead exposure. See Op. & Order Granting Pls.’ Mot. for Prelim. Inj. 22-24, ECF No. 96. Although the City ultimately began to comply with its obligation under Paragraph 85, its lack of diligence resulted in a months-long violation of the Agreement. In the meantime, Plaintiffs could not confirm whether CORE and the City were visiting the homes of new water customers within the timeframe set forth in the Agreement to verify that they had properly working filters.
The City’s violations reflect a pattern of noncompliance. See supra pp. 4-13. Even if individual requests for information are ultimately resolved after months of correspondence and follow-up (as some of the examples discussed above were), these repeated violations show systemic deficiencies in the City’s documentation and reporting and a disregard for important terms in this Court’s order.
In response to Plaintiffs’ repeated attempts to address these issues, the City
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refuses to do more. It insists that the City’s counsel should not be obligated to undertake a reasonable inquiry to ensure the information received from City contractors and employees is complete and accurate. Chaudhary Decl. ¶ 35. This is not true. The Agreement’s disclosure requirements should come as no surprise: the City negotiated these terms and agreed to provide this information. Cf. Ohio Valley Envtl. Coal., Inc. v. Apogee Coal Co., 744 F. Supp. 2d 561, 570 (S.D.W. Va. 2010) (assuming defendant “entered into the Consent Decree in good faith with confidence it could meet the deadline it was agreeing to”). In doing so, the City and its counsel also implicitly agreed to undertake reasonable diligence to verify the accuracy of the information the City provides under this Court-ordered settlement. See id. at 574 (finding that lack of diligence in efforts to comply with consent decree and resultant violations warranted civil contempt).
Indeed, the City’s failure to provide basic information in a timely way raises larger questions about its competency. If the City cannot collect critical, easily identifiable data and provide it within the agreed-upon timeframes, how can Plaintiffs trust that the City is competent to execute the much larger and urgent task of service line replacement in Flint? With every accumulated reporting violation, it becomes more important that Plaintiffs verify whether the City is in fact meeting its obligations under the Agreement. The City’s lackadaisical approach to its reporting obligations contrasts sharply with the seriousness of the
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issues at hand. III. Further action by the Court is necessary to enforce the Agreement
Plaintiffs seek targeted modifications to the Agreement to improve the City’s diligence and timeliness in collecting and reporting information. See Chaudhary Decl. Ex. BB. In view of the City’s limited financial resources, Plaintiffs do not seek relief such as contempt sanctions or civil penalties that may harm the City’s other functions. Plaintiffs instead request as a remedy a more extensive reporting and certification process, overseen by the Court, to ensure that the City provides Plaintiffs with the information needed to make the Agreement work as all the parties and the Court intended.
Plaintiffs seek this additional relief from the Court as a last resort. For months, Plaintiffs have attempted to work collaboratively with the City and avoid motion practice through countless phone calls, conferences, and correspondence. See supra pp. 4-14. But the City refuses to implement meaningful changes in its data collection and reporting practices to meet its obligations under this Court’s order. Such violations warrant further relief: “A defendant who has obtained the benefits of a consent decree—not the least of which is the termination of the litigation—cannot then be permitted to ignore such affirmative obligations as were imposed by the decree.” Berger, 771 F.2d at 1568. Plaintiffs, accordingly, now seek the relief described below.
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Status reports. Plaintiffs request that the Court order the City to complete a form titled, “City of Flint Status Report Certification Form,” and submit it to Plaintiffs with each required status report. See Chaudhary Decl. Ex. BB. This form obligates the City, for each of Paragraph 117’s disclosure requirements, to indicate whether the required information was indeed reported to Plaintiffs, the date of the disclosure, and the substance of the disclosure. If no such disclosure was made, the City must explain why. Id. The City should also be required to file future status reports, including the certification forms, with the Court.
Both the City and State oppose Plaintiffs’ request that the City file its status reports and certification forms with the Court. While Plaintiffs do not want to add to the Court’s administrative burden, the Agreement alone has not been sufficient to compel the City’s diligence and compliance. The submission of status reports to courts is a well-established tool to “ensure sufficient public and judicial oversight” of the implementation of a consent decree. District of Columbia v. Potomac Elec. Power Co., 826 F. Supp. 2d 227, 239 (D.D.C. 2011). Increased transparency in the City’s compliance reporting is a logical next step to improve accountability and protect the integrity of the Court’s order. Cf. Putnam v. Oakland Unified Sch. Dist., 980 F. Supp. 1094, 1098 (N.D. Cal. 1997) (requiring reporting to the Court, instead of solely to plaintiffs, to remedy noncompliance with consent decree).
Requests for information under Paragraph 118. Plaintiffs request that the
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Court order the City to similarly certify its responses to requests for information

under Paragraph 118. Plaintiffs propose that, for each such request, Plaintiffs will

first complete the relevant portions of a form titled, “Paragraph 118 Certification

Form,” see Chaudhary Decl. Ex. BB. Within fourteen days of receiving such a

form, the City would be required to return the completed form indicating whether

it provided a full response to Plaintiffs and, if not, why not. Id. All such forms will

become part of Paragraph 117’s disclosure requirements and be included in the

status report materials filed by the City with the Court.

CONCLUSION

For the foregoing reasons, Plaintiffs request that the Court order the above-

described relief to enforce the Court-ordered Settlement Agreement.

Dated: December 27, 2017

Respectfully submitted,

/s/ Dimple Chaudhary___________ Dimple Chaudhary Jared E. Knicley Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 289-2385 dchaudhary@nrdc.org jknicley@nrdc.org
Sarah C. Tallman Natural Resources Defense Council 20 North Wacker Drive, Suite 1600 Chicago, IL 60606 (312) 651-7918 stallman@nrdc.org

/s/ Michael J. Steinberg__________ Michael J. Steinberg (P43085) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org
Counsel for Plaintiff American Civil Liberties Union of Michigan

22

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Counsel for Plaintiffs Concerned Pastors for Social Action, Melissa Mays, and Natural Resources Defense Council, Inc.
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CERTIFICATE OF SERVICE I hereby certify that on December 27, 2017, I electronically filed Plaintiffs’ Motion to Enforce Settlement Agreement and accompanying Brief and exhibits with the Clerk of the Court using the ECF system.
/s/ Dimple Chaudhary Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 289-2385 dchaudhary@nrdc.org
24

 
 Case 2:16-cv-10277-DML-SDD ECF No. 163 filed 03/15/18 PageID.8048 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CONCERNED PASTORS FOR SOCIAL ACTION, et al.,
Plaintiffs, v.

Case No. 16-10277 Hon. David M. Lawson

NICK A. KHOURI, et al.,

Mag. J. Stephanie Dawkins Davis

Defendants. /

STIPULATION REGARDING PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT

On December 27, 2018, Plaintiffs Concerned Pastors for Social Action,

Melissa Mays, American Civil Liberties Union of Michigan, and Natural

Resources Defense Council moved to enforce the parties’ Settlement Agreement

(ECF No. 147-1) alleging that Defendants City of Flint and City Administrator

(together, the City) were violating the Agreement’s disclosure requirements. See

Pls.’ Br. Supp. Mot. to Enforce Settlement Agmt. (Mot.), ECF No. 155. The City

opposed the motion (see City Defs.’ Resp., ECF No. 157) and, on January 23,

2018, the Court held a hearing on the motion. Tr. of Hr’g on Mot., ECF No. 162.

At the hearing, the Court took Plaintiffs’ motion under advisement until the

conclusion of the three-month reporting period ending February 28, 2018, and the

City’s submission of its status report, and encouraged the parties to reach a

Case 2:16-cv-10277-DML-SDD ECF No. 163 filed 03/15/18 PageID.8049 Page 2 of 5
stipulation with respect to the motion. Id. at 26:7-27:15. The Court also indicated it would permit supplemental briefing by Plaintiffs and the City, due March 15, 2018, and March 22, 2018, respectively. Id.
In lieu of that supplemental briefing, Plaintiffs and the City1 hereby stipulate to the Court’s entry of an order providing that:
1. Plaintiffs’ Motion to Enforce the Settlement Agreement, ECF No. 155, will be held open for two additional three-month reporting periods, until September 18, 2018;2
2. In all future status reports for the duration of the Agreement, the City will provide the data described in Paragraph 117.c.ii.5 in a reasonably usable format that shows in a single dataset or spreadsheet, for each address at which a service line was replaced: the date of service line replacement; the date(s) and time(s) of any visit from the City or its contractors to verify whether a faucet filter was properly installed following service line replacement; and the result of any such visit(s) (i.e., whether verification was successful);
3. Plaintiffs may seek additional intervention by the Court if, during the pendency of the motion, the City’s status reports under Paragraph 117 or responses
1 The State Defendants take no position on this stipulation. 2 The City is required to submit a status report on May 28, 2018, and another on August 28, 2018. Agmt. ¶ 117, ECF No. 147-1.
2

Case 2:16-cv-10277-DML-SDD ECF No. 163 filed 03/15/18 PageID.8050 Page 3 of 5

to information requests under Paragraph 118 are incomplete, inaccurate, or

untimely;

4. Plaintiffs may file a supplemental brief identifying a proposed

resolution of the Motion to Enforce (ECF No. 155) no later than September 11,

2018, two weeks after the City’s August 28, 2018 status report is due to Plaintiffs;

and

5. The City may file a response to Plaintiffs’ supplemental brief no later

than September 18, 2018.

Dated: March 15, 2018
/s/ Dimple Chaudhary___________ Dimple Chaudhary Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 289-2385 dchaudhary@nrdc.org

Respectfully submitted,
/s/ William Y. Kim (with consent)___ William Y. Kim (P76411) City of Flint Law Department 1101 South Saginaw Street, 3rd Floor Flint MI 48502 (810) 766-7146 wkim@cityofflint.com

Sarah C. Tallman Natural Resources Defense Council 20 North Wacker Drive, Suite 1600 Chicago, IL 60606 (312) 651-7918 stallman@nrdc.org

Counsel for City Defendants

Counsel for Plaintiffs Concerned Pastors for Social Action, Melissa Mays, and Natural Resources Defense Council, Inc.

/s/ Michael J. Steinberg__________ Michael J. Steinberg (P43085)

3

Case 2:16-cv-10277-DML-SDD ECF No. 163 filed 03/15/18 PageID.8051 Page 4 of 5
American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org Counsel for Plaintiff American Civil Liberties Union of Michigan
4

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CERTIFICATE OF SERVICE I hereby certify that on March 15, 2018, I electronically filed the foregoing Stipulation with the Clerk of the Court using the ECF system.
/s/ Dimple Chaudhary Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 289-2385 dchaudhary@nrdc.org
5

 
 Case 2:16-cv-10277-DML-SDD ECF No. 166 filed 06/21/18 PageID.8064 Page 1 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CONCERNED PASTORS FOR SOCIAL ACTION, et al.,
Plaintiffs, v.

Case No. 16-10277 Hon. David M. Lawson

NICK A. KHOURI, et al.,

Mag. J. Stephanie Dawkins Davis

Defendants. /

PLAINTIFFS’ MOTION TO ENFORCE PARAGRAPHS 29 AND 30 OF SETTLEMENT AGREEMENT

Plaintiffs Concerned Pastors for Social Action, Melissa Mays, American

Civil Liberties Union of Michigan, and Natural Resources Defense Council

respectfully move the Court to order relief necessary to ensure the City of Flint’s

and City Administrator’s immediate compliance with Paragraphs 29 and 30 of the

Settlement Agreement ordered by the Court on March 28, 2017. See ECF Nos.

147-1, 152.1

Counsel for Plaintiffs communicated with opposing counsel in accordance

with Local Rule 7.1(a) explaining the nature of the relief sought in this motion and

seeking concurrence in the relief. State Parties indicated that they take no position

1 Pending with the Court is Plaintiffs’ unopposed motion to exceed the page limit for their brief in support of this Motion to Enforce Paragraphs 29 and 30 of Settlement Agreement. ECF No. 165.

Case 2:16-cv-10277-DML-SDD ECF No. 166 filed 06/21/18 PageID.8065 Page 2 of 40

on the motion. City Defendants indicated that they do not concur in the motion.

Dated: June 21, 2018

Respectfully submitted,

/s/ Sarah C. Tallman___________ Sarah C. Tallman Natural Resources Defense Council 20 North Wacker Drive, Suite 1600 Chicago, IL 60606 (312) 651-7918 stallman@nrdc.org
Dimple Chaudhary Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 289-2385 dchaudhary@nrdc.org

/s/ Michael J. Steinberg__________ Michael J. Steinberg (P43085) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org
Counsel for Plaintiff American Civil Liberties Union of Michigan

Counsel for Plaintiffs Concerned Pastors for Social Action, Melissa Mays, and Natural Resources Defense Council, Inc.

2

Case 2:16-cv-10277-DML-SDD ECF No. 166 filed 06/21/18 PageID.8066 Page 3 of 40

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CONCERNED PASTORS FOR SOCIAL ACTION, et al.,
Plaintiffs, v.

Case No. 16-10277 Hon. David M. Lawson

NICK A. KHOURI, et al.,

Mag. J. Stephanie Dawkins Davis

Defendants. /

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION TO ENFORCE PARAGRAPHS 29 AND 30 OF SETTLEMENT AGREEMENT

Case 2:16-cv-10277-DML-SDD ECF No. 166 filed 06/21/18 PageID.8067 Page 4 of 40
TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii CONCISE STATEMENT OF THE ISSUE PRESENTED......................................iv CONTROLLING AUTHORITIES............................................................................v INTRODUCTION .....................................................................................................1 STATEMENT OF FACTS ........................................................................................3 I. Replacement of service lines under the Settlement Agreement ......................3 II. The City’s Paragraph 30 Report ......................................................................7 III. The parties’ dispute concerning the validity of the Paragraph 30 Report’s
conclusions .....................................................................................................9 STANDARD OF REVIEW .....................................................................................13 ARGUMENT ...........................................................................................................14 I. The Court should reject the City’s analysis because it uses a flawed
method that presumes the answer to the question it must consider ..............14 II. The Court should reject the City’s analysis because the City fails to
provide reasonable support for its conclusion that there were no more than 18,000 lead or galvanized steel service lines in March 2017 ................17 A. The difference between the projected hit rate for 2017 (80%)
and the observed hit rate (70.1%) does not prove that the 18,000 pipe ceiling was an overestimate.........................................................18 B. The City provides no reasonable support for its projected decrease in hit rates for 2018 and 2019...............................................20 1. The density map provides no support for the City’s
projected declining hit rates ......................................................20
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2. The City’s listing of general variables it considered, without more, provides no support for the City’s hit rate predictions .................................................................................22
3. Even assuming there is some support for a declining hit rate in 2018 and 2019, the City has not supported its specific numeric projections .....................................................25
III. The City’s conclusion that it will not need additional funding to complete its obligations under the Agreement is invalid ..............................26
IV. A revised evaluation is necessary to implement the Agreement...................27 CONCLUSION ........................................................................................................30
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TABLE OF AUTHORITIES CASES
Dotson v. U.S. Dep’t of Hous. & Urban Dev., 731 F.2d 313 (6th Cir. 1984) .........................................................................14
G.G. Mark & Assocs. v. Peng, 309 F. App’x 928 (6th Cir. 2009)..................................................................13
Huguley v. Gen. Motors Corp., 67 F.3d 129 (6th Cir. 1995) ...........................................................................14
Nat’l Ecological Found. v. Alexander, 496 F.3d 466 (6th Cir. 2007) .........................................................................14
Pedreira v. Sunrise Children’s Servs., Inc., 802 F.3d 865 (6th Cir. 2015) .........................................................................13
Shy v. Navistar Int’l Corp., 701 F.3d 523 (6th Cir. 2012) .........................................................................14
United States v. Armour & Co., 402 U.S. 673 (1971).......................................................................................14
Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013 (6th Cir. 1994) .........................................................................14
Waste Mgmt. of Ohio, Inc. v. City of Dayton, 132 F.3d 1142 (6th Cir. 1997) .......................................................................14
Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084 (6th Cir. 2016) .......................................................................13 OTHER AUTHORITIES
Fed. R. Evid. 702 adv. comm. note..........................................................................24
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CONCISE STATEMENT OF THE ISSUE PRESENTED The Settlement Agreement requires the City of Flint to “conduct an evaluation,” “consider[ing] all relevant information available,” to determine whether it is “reasonably likely” that there were more than 18,000 lead and galvanized steel service lines in Flint as of March 28, 2017. Did the City violate this requirement by relying on guesswork and a rigged formula, and by failing to use the data available to it to draw reasonable conclusions about how many lead and galvanized steel service lines are in Flint, and about how much it will cost to replace them?
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CONTROLLING AUTHORITIES Nat’l Ecological Found. v. Alexander, 496 F.3d 466 (6th Cir. 2007) Waste Mgmt. of Ohio, Inc. v. City of Dayton, 132 F.3d 1142 (6th Cir. 1997)
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INTRODUCTION In the Court-ordered Settlement Agreement resolving this Safe Drinking Water Act case, the parties “agree[d] that replacing all lead and galvanized steel water service lines in the City of Flint . . . will help reduce lead contamination in the City’s drinking water.” Settlement Agmt. (Agmt.) 3, ECF No. 147-1. To that end, the City of Flint and City Administrator (together, the City) committed to locating lead and galvanized steel service lines at thousands of homes in Flint and replacing them. As a starting point, the Agreement required the City to conduct excavations2 at a minimum of 18,000 households over three years to locate lead and galvanized steel service lines. Id. ¶ 9. However, when the Agreement was executed in March 2017, the parties did not know with certainty how many service lines in Flint needed to be replaced, or where they were. The parties thus did not know whether 18,000 excavations would be sufficient to locate all service lines in Flint needing replacement. To account for this, the City agreed to analyze the data it collected during the first year of excavations and assess whether there were likely more than 18,000
2 An excavation involves digging a hole or channel at the location of a service line for the purpose of identifying the material of the buried service line. Agmt. ¶ 2(l). If an excavation covered by the Agreement uncovers a lead or galvanized steel service line, the City must remove the line and replace it with a copper line. Id. ¶ 10.
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service lines in Flint that needed to be replaced when the Agreement was executed, and how much it will cost to replace those lines (Paragraph 30 analysis). If the City’s Paragraph 30 analysis concludes that Flint likely had more than 18,000 service lines needing replacement, then the number of excavations the City must conduct is increased to that new number. Id. ¶ 33. The Paragraph 30 analysis is critical to the Agreement’s success: it determines how many total service lines the City must excavate and replace, and whether the State must seek additional funding to ensure the City has enough money to finish the job.
The City submitted a report concluding that there were not likely more than 18,000 service lines needing replacement, and that the $97 million in available funding under the Agreement will be sufficient to complete the required work. The City, however, failed to conduct the evaluation the Agreement requires.
First, the City used an illogical, rigged formula that could never result in a conclusion that there were more than 18,000 lead and galvanized steel service lines in Flint. The City’s approach effectively insulates it from a finding that would require it to complete additional excavations and pipe replacements. Second, the City’s estimates of the percentage of homes in Flint that will require service line replacement moving forward are unsupported by the available data. Instead of conducting a reasoned evaluation, the City relies on guesswork and undocumented personal observations of City staff to reduce the projected number of service lines
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for replacement. The consequences of the City’s shoddy analysis are not academic. If the City’s estimates are off by even two percent, it will run out of funding under the Agreement.
After months of meetings and correspondence with the City to try to bring it into compliance with the Agreement, Plaintiffs seek relief from the Court. The City’s refusal to conduct the required evaluation undermines the central purpose of the Agreement: to protect all Flint residents from lead exposure from the pipes bringing tap water into their homes. Accordingly, Plaintiffs respectfully request that the Court order the City to revise its estimates using sound methods applied by an expert qualified to conduct statistical predictive modeling. In the alternative, Plaintiffs request that the City use the rate of replacements observed to date to estimate the total number of remaining lead and galvanized service lines.
STATEMENT OF FACTS I. Replacement of service lines under the Settlement Agreement
The centerpiece of the Settlement Agreement is a requirement that the City remove thousands of lead and galvanized steel service lines at occupied homes in Flint by January 1, 2020. See Agmt. ¶¶ 8-20. Flint had roughly 28,400 occupied homes when the Agreement was executed.3 But not all the service lines connecting
3 Chaudhary Decl. Ex. 19; see Woods Decl. ¶ 57 & n.15 (explaining uncertainty concerning the total number of occupied homes in Flint).
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to those homes need to be replaced. Some are made of copper or other materials that are not known to contribute to lead contamination in drinking water. Accordingly, the Agreement aims to provide sufficient funding to replace all service lines in Flint that are composed of lead or galvanized steel.
The Agreement requires the City to conduct excavations to determine the service line composition at 18,000 homes (at a rate of at least 6,000 per year) and replace lead and galvanized steel service lines with copper ones. Id. The State4 must provide up to $97 million to reimburse the City for conducting these excavations and pipe replacements. Id. ¶¶ 21-27.
The 18,000 figure5 is the minimum number of excavations the City is required to conduct to identify all the lead and galvanized steel service lines at Flint’s roughly 28,400 occupied homes. It was arrived at through extensive negotiation, like all the Agreement’s terms. See id. at 3. The 18,000 figure, however, was based on incomplete and imperfect information. E.g., Chaudhary Decl. Ex. 2 attach. ¶ 3 (letter from EPA explaining that Flint’s records of the locations of lead service lines were inadequate and incomplete). In March 2017,
4 Plaintiffs refer to State Defendants, the State of Michigan, and the Michigan Department of Environmental Quality collectively as “the State.”
5 An April 2016 report indicated that there could be up to 20,000 lead and galvanized steel service lines. Chaudhary Decl. Ex. 3 at 2 tbl.1 (total of categories labeled “Lead Materials,” “Galvanized Materials,” and “Unknown”). The 20,000 figure assumes that all lines that city records indicate are of unknown composition are in fact made of lead or galvanized steel. See id.; see also id. Ex. 12 at 2.
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when the Agreement was entered, the City did not know how many lead and galvanized steel service lines were in Flint, and publicly available estimates had fluctuated widely over time. Compare id. Ex. 3 at 2 tbl.1 (April 2016 estimate of 20,272 service lines), with id. Exs. 6, 7 (January 2017 estimate of 29,000 service lines). Similarly, no one knew where these lines were located.
To account for these uncertainties, the Agreement requires the City to excavate at least 6,000 service lines in 2017 and then use the data from those excavations to calculate the total number of service lines that need replacement in Flint. See Agmt. ¶ 29. To that end, the City must “conduct an evaluation” following the first year of excavations and pipe replacements. Id. The evaluation must estimate the total number of lead and galvanized steel service lines serving occupied homes in Flint as of the Agreement’s execution and the cost to replace them. Id.; see also id. ¶ 33 (referring to the “updated total number of estimated lead and galvanized steel service lines in the City”). The City must determine “whether the data and information available to it support any of the following conclusions: (i) it is reasonably likely that there were more than 18,000 lead and galvanized steel service lines at [eligible households in Flint] as of [March 28, 2017],” and/or (ii) the $97 million in funding available under the Agreement “can reasonably be expected to cover the costs of completing the 18,000 excavations and replacements . . . and the total number of any additional lead and galvanized steel service lines
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anticipated in light of the evaluation of (i).” Id. ¶ 29. The City “shall consider all relevant information available,” including information obtained through excavations and pipe replacements completed during 2017. Id.
Paragraph 30 of the Agreement required the City to produce a written statement (Report) “summarizing the data and information used in the evaluation,” and describing the evaluation’s conclusions. Id. ¶ 30. The conclusions in the City’s Report are important: If there were likely more than 18,000 lead and galvanized steel service lines in Flint as of the Agreement’s execution, then the City must complete excavations and replacements at the new total number of estimated lead and galvanized steel service lines in the City by March 28, 2020. Id. ¶ 33. In this way, the new estimate of the total number of lead and galvanized steel service lines in Flint will become the minimum number of excavations the City must complete.
Correspondingly, if the $97 million in allocated funding is likely not sufficient to complete the required excavations and replacements at the estimated total number of homes with service lines needing replacement, the State must “undertake all reasonable efforts to secure additional monies (including, if necessary, seeking appropriations from the Michigan State Legislature) sufficient to reimburse the City” for the required work. Id. ¶ 32. The State’s obligation to seek additional funding can be triggered only through the analysis conducted under Paragraphs 29 and 30. See id. ¶¶ 29-30.
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The evaluation under Paragraphs 29 and 30 is critical. If the City later discovers that it needs more money to complete its work, the State will not be required to seek those funds from the state legislature. Thus, this evaluation is the only mechanism under the Agreement that ensures the City will have enough money to replace Flint’s lead and galvanized steel service lines. II. The City’s Paragraph 30 Report
The City submitted its Paragraph 30 Report on February 8, 2018. Chaudhary Decl. Ex. 8. The Report summarized the excavation and pipe replacement work completed as of the Report’s date: through February 8, 2018, the City conducted approximately 8843 excavations. Id. at 2. Those 8843 excavations uncovered 6256 lead or galvanized steel service lines. Id. In other words, the City discovered a lead or galvanized steel service line at roughly 70.7% of the homes where it conducted excavations. The parties refer to this percentage as the “hit rate.”
The Report then concluded that it is “not reasonably likely that there were more than 18,000 lead or galvanized steel service lines” in Flint as of March 2017. Id. at 1 (emphasis added). The City appears to have reached this conclusion in two steps: First, it subtracted the number of lines it had excavated to date from 18,000. Id. at 2. Second, it assumed the hit rate for the remaining 91736 lines “will continue
6 The City appears to have subtracted incorrectly. The Report concludes that, “[w]ith 8,843 excavations completed, the City’s remaining obligations under the Settlement Agreement are to conduct 9,173 excavations.” Chaudhary Decl. Ex. 8 at
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to drop” to 60% in 2018 and 50% in 2019, i.e., that the City will uncover lead or galvanized steel service lines at a lower percentage of homes during the 2018 and 2019 work. Id.
The Report went on to conclude that the $97 million in available funding “can reasonably be expected to cover the costs” of completing the remaining required work. Id. at 1. The City reached this conclusion using the number of remaining excavations it believes it needs to perform under the Agreement (9173). The City then applied its decreasing hit rate to that figure to conclude that it will likely need to replace 51697 more service lines in 2018 and 2019. See id. at 2, 4.
Based on the City’s projections, it will need $59,221,184 to complete an additional 9173 excavations and 5169 replacements. Id. at 3. The remaining available funding under the Agreement is $59,750,000. Id. Thus, the City’s estimates leave a little over $500,000 left from the original $97 million. Assuming a pipe replacement costs $4985 (the average of the City’s projections for 2018 and
2. However, 18,000 minus 8843 equals 9157, not 9173. To avoid confusion, Plaintiffs use the City’s figure (9173).
7 Again, the City’s reported numbers appear to be based on calculation errors. Using the City’s reported 9173 remaining excavations (which itself is based on a subtraction error, see supra note 5), and using the City’s statements that it will conduct 6000 excavations in 2018 and 3173 excavations in 2019, applying the City’s projected hit rates yields a total of 5187 (not 5169) remaining replacements: [6000 multiplied by 0.6 = 3600 replacements in 2018] + [3173 multiplied by 0.5 = 1587 replacements in 2019] = 5187 (3600 + 1587) total remaining replacements in 2018 and 2019, not 5169, as the City reports.
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2019), this funding will cover at most a discrepancy of 106 replacements.8 III. The parties’ dispute concerning the validity of the Paragraph 30
Report’s conclusions On March 1, 2018, after a meeting with the City and its engineering firm (AECOM), id. Ex. 9, Plaintiffs notified the City that they did not concur with its conclusions about the likely number of lead and galvanized steel service lines in Flint and the likelihood that the available $97 million in funding will cover the costs of the required work. Id. Ex. 12; see Agmt. ¶ 30.9 Plaintiffs explained that the City did not provide sufficient analysis or information to support its conclusion that it is reasonably likely that, as of March 2017, Flint had no more than 18,000 lead and galvanized steel service lines. Chaudhary Decl. Ex. 12 at 2. Plaintiffs also noted that the City had not explained the “data and information” underlying its projection that the hit rate will decrease by 10% from the observed hit rate in 2017 (70%) in each of the following two years. Id. (quoting Agmt. ¶ 30). Plaintiffs asked for additional documentation to support the City’s conclusions. Id. at 2-3. In response to Plaintiffs’ inquiries, the City provided two additional documents: a density map created in 2016 by the University of Michigan-Flint, and a brief “Follow-Up Summary” containing additional narrative descriptions of the
8 Including the $2,000,000 buffer in the City’s budget, see Chaudhary Decl. Ex. 8 at 4 (entries for “Construction Contingency”), the remaining funding ($2,528,816) will cover at most 507 additional replacements.
9 The State did not object to any of the conclusions in the Paragraph 30 Report. 9

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City’s analysis. Id. Exs. 13, 14. The Follow-Up Summary noted that the number of service lines requiring replacement in 2017 (roughly 70%) was lower than the City expected (80%). Id. Ex. 13. Relying on this lower-than-expected hit rate, the City concluded that the original 18,000 figure likely overestimated the number of lead and galvanized steel service lines in Flint. See id. (paragraph (1) under heading labeled, “Conclusions”).
The City said that the 2016 “density map” it provided was based on postal service records, city records, and possibly additional information; the City is not certain exactly what data the map makers relied on. Chaudhary Decl. ¶ 17. The map purports to show through color-coding whether the density of lead, galvanized, and unknown service lines is likely to be high (red areas) or low (green areas). Id. Ex. 14. The University of Michigan-Flint team that created the map admitted that there were up to 13,000 homes for which the city records had no information about the service line material, that the team had to disregard many of the records that “were in pencil and unreadable,” and that the team did “not [have] necessarily good information on what kind of updates were made” to the records over time. Id. Ex. 22; see also id. Ex. 1. The City says it started excavating in the red areas of the map and will move towards the green areas in 2018 and 2019.
Plaintiffs explained in a letter dated March 30, 2018, that the density map and Follow-Up Summary were not adequate to support the City’s conclusions.
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Id. Ex. 15. Plaintiffs noted that the City had not provided any information about the assumptions underlying the map’s predictions, and had not conducted any analyses to test the reliability of the map—created in 2016—based on the new data collected from the 2017 pipe replacement work. Plaintiffs also explained that without any information about the basis for the City’s expected hit rate for 2017 (80%), and which variables drove the difference between that expected hit rate and the lower observed hit rate (70%), the City could not reasonably draw conclusions about whether that trend would continue. As a result, Plaintiffs explained that the City could not reasonably conclude from this fact (that its observed hit rate in 2017 was 10% lower than expected), that the 18,000 figure was “likely an overestimation.” Id. at 3-4. Plaintiffs reiterated their request for any written analysis or modeling that would support continued reliance on the density map. Id. at 4.
The City confirmed subsequently that it had no additional “specific information or written documentation . . . describing how the City came to its projections [for the decreased hit rates].” Id. Ex. 17 at 1, 2. As a result, the only explanation for the City’s numbers is the assertion that
those projections were the result of deductive reasoning, based on the FAST Start Phase I-IV experiences, institutional knowledge of the age, and condition of the City’s infrastructure possessed by the City’s Department of Public Works, and the professional expertise and training of AECOM in assessing and planning for public works projects of this type. Id. Ex. 11 at 2.
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Because of the lack of analysis and support for the City’s projected decreased hit rates, Plaintiffs proposed several statistically sound options for updating the City’s service line and cost estimates. First, Plaintiffs proposed that the City use the observed hit rate as of the date of the Report—70.7%10—as the projected hit rate moving forward. Id. Ex. 15 at 3. Alternatively, Plaintiffs proposed that the City use the observed hit rate for excavations conducted through July 31, 2018, as the projected hit rate, thereby including additional information in the observed rate. Id. Ex. 18 at 3. The City rejected both options. See id. Ex. 20.
After Plaintiffs notified the City that they intended to file this motion, see id. Ex. 21, the City provided five additional files that purport to “provide additional support” for the City’s Paragraph 30 Report. Id. Ex. 23. These files include a list of fire hydrants in the City, including their dates of fabrication, and a map of those hydrants, color-coded by age. Id. The City also provided several maps showing the composition of service lines based on the City’s water service line records, which have been digitized by a consultant. Id. Finally, the City provided the results of additional excavations completed between April 26 and June 4, 2018. Id. Of those excavations, 37.2% uncovered lead or galvanized steel service lines. The City asserts that these documents show that its conclusions in the Paragraph 30 Report
10 70.7% is the reported observed hit rate for all excavations conducted through February 8, 2018. Chaudhary Decl. Ex. 8 at 2. 70.1% is the reported observed hit rate for those excavations conducted during 2017 (Phase IV) alone. Id. at 2 n.6.
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are “correct.” Id. In subsequent correspondence, Plaintiffs explained that the hydrant map and
spreadsheet are insufficient because they do not explain how the hydrant ages informed the City’s projected hit rates, and that because the other maps were created after the City submitted its Paragraph 30 Report, they could not have been used to inform the Report’s conclusions. Id. Ex. 24. Plaintiffs again explained that the documentation provided by the City to date does not provide adequate support for the conclusions in its Report. Id.
For four months, through correspondence, in-person meetings, and phone calls, Plaintiffs have attempted to work with the City to resolve their objections to the Paragraph 30 Report.
STANDARD OF REVIEW The Settlement Agreement, which operates as a consent decree, is “a prospective form of relief involving continuous court oversight.” Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084, 1094 (6th Cir. 2016); Pedreira v. Sunrise Children’s Servs., Inc., 802 F.3d 865, 871 (6th Cir. 2015) (“A consent decree is essentially a settlement agreement subject to continued judicial policing.” (citation omitted)); Order 2, ECF No. 152. Interpreting a consent decree is generally “a question of contractual interpretation.” G.G. Mark & Assocs. v. Peng, 309 F. App’x 928, 934 (6th Cir.
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2009) (internal quotation marks omitted). Accordingly, “[t]he court’s task in interpreting a consent decree is ‘to ascertain the intent of the parties at the time of settlement.’” Nat’l Ecological Found. v. Alexander, 496 F.3d 466, 477-78 (6th Cir. 2007) (quoting Huguley v. Gen. Motors Corp., 67 F.3d 129, 134 (6th Cir. 1995)). The meaning of the consent decree “must be discerned within its four corners,” United States v. Armour & Co., 402 U.S. 673, 682 (1971), and the decree “should be construed to preserve the position for which the parties bargained,” Vanguards of Cleveland v. City of Cleveland, 23 F.3d 1013, 1018 (6th Cir. 1994).
In addition, “equitable considerations are an inherent part” of a court’s power to interpret and oversee a consent decree. Waste Mgmt. of Ohio, Inc. v. City of Dayton, 132 F.3d 1142, 1145 (6th Cir. 1997). In this way, the Court must interpret the decree in light of “the circumstances surrounding its formation.” Dotson v. U.S. Dep’t of Hous. & Urban Dev., 731 F.2d 313, 318 (6th Cir. 1984) (internal quotation marks omitted). The Court “has broad equitable remedial powers” to enforce the Court-ordered Agreement. Shy v. Navistar Int’l Corp., 701 F.3d 523, 533 (6th Cir. 2012) (citation omitted).
ARGUMENT I. The Court should reject the City’s analysis because it uses a flawed
method that presumes the answer to the question it must consider The City’s conclusion that there were not more than 18,000 lead or galvanized steel service lines for replacement in Flint is invalid because the City
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used a formula that guaranteed its estimate would never exceed 18,000. In other words, “no” was the only answer possible under the City’s Paragraph 30 analysis. This fundamental error makes that analysis meaningless.
The City’s flawed method starts with an assumption that there are 18,000 service lines to be excavated and subtracts the number of excavations completed as of February 2018 (8843), stating that the City has an obligation to complete only 917311 more excavations. Chaudhary Decl. Ex. 8 at 2. The City then applied its anticipated hit rates (60% in 2018 and 50% in 2019) to those remaining excavations to conclude that it will likely need to replace only an additional 5169 lead and galvanized steel service lines. Id. at 4; see supra p. 8 & note 6.
Through its analysis, the City has only calculated how many lead and galvanized steel service lines are likely to be discovered if the City does 9173 more excavations. But the answer to that question says nothing about whether there were likely more or fewer than 18,000 total lead and galvanized steel service lines in Flint as of the Agreement’s execution. The City’s Report thus ignores the core question the City was required to answer: what does the new data say about how many lead and galvanized steel service lines there were in Flint as of March 2017?
To answer that question, the City must apply a valid projected hit rate to the total number of occupied homes that have not yet been excavated (19,557), not
11 See supra note 5 (explaining the City’s subtraction error). 15

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just—as the City has done—to the bare minimum number of excavations the City must still complete under the Agreement (9173). Applying the hit rate to only this subset of homes essentially ignores the rest of homes in Flint and artificially reduces the total number of homes eligible for service line replacement. It also makes the City’s analysis a farce: even assuming a 99.9% hit rate, the City still would conclude there were fewer than 18,000 lead and galvanized steel lines in Flint when the Agreement was executed.12 The City’s approach, in other words, could never estimate more than 18,000 lines, and effectively renders Paragraphs 32 and 33 of the Agreement dead letter.
Had the City applied a valid projected hit rate13 to the correct number of remaining homes—the number of occupied homes in Flint that have not yet been excavated (19,557), Woods Decl. ¶ 57 (d1)—the City would have to answer “yes” to the central question of whether there were likely more than 18,000 lead and galvanized steel pipes in Flint when the Agreement was executed. See id. ¶¶ 52-57.
In fact, the City has already answered “yes” to this question and endorsed the approach described by Plaintiffs. In a May 2018 letter to EPA calculating the number of service lines Flint still needs to replace, the City applied the observed
12 9173 remaining excavations (as reported by the City) x 99.9% hit rate, rounded to the nearest whole number = 9164 lines remaining to be replaced. Adding this number (9164) to the total lead and galvanized steel lines identified during 2017 (6256) = 6256 + 9164 = 15,420 total lead or galvanized steel lines.
13 As explained infra pp. 20-26, the City’s projected hit rates are invalid. 16

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hit rate to the total number of homes that have not yet been excavated. Chaudhary Decl. Ex. 19. It concluded that the City “still has approximately 14,000 lead, galvanized or other [service lines] left to replace.” Id. Adding 14,000 to the total lead and galvanized steel pipes already identified (6256) yields more than 20,000 pipes. Thus, mere months after the City told Plaintiffs that Flint likely had no more than 18,000 service lines needing replacement, it projected to EPA that Flint likely had more than 20,000 lines needing replacement as of March 2017. This correspondence underscores the incoherence of the City’s Paragraph 30 Report. II. The Court should reject the City’s analysis because the City fails to
provide reasonable support for its conclusion that there were no more than 18,000 lead or galvanized steel service lines in March 2017 The City’s conclusion that “the original 18,000 ceiling was likely an overestimation” appears to be based on two premises: First, while the City’s consultants projected that a service line would need to be replaced at “80% of the addresses” in areas excavated in 2017, the observed hit rate was lower, 70%. See id. Ex. 13 at 1. Second, this hit rate can be “expected to decline” in 2018 and 2019 because the City’s remaining excavations will be in areas “originally projected . . . to have much lower concentrations of service lines requiring replacement.” Id. Plaintiffs have repeatedly asked the City for supporting documentation, written analysis, or statistical modeling to explain how it calculated its projected hit rate for 2017 (80%) and the expected decline in hit rates moving forward (60%
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for 2018, 50% for 2019). See, e.g., Chaudhary Decl. Exs. 9 at 1 (asking the City to “explain the basis” for the projected declining hit rates, and asking “[w]hat data” the City considered), 12 at 2-3; Chaudhary Decl. ¶ 19.
The City has offered scant support to explain the fundamental premises on which it bases its analysis. The City’s conclusion that Flint likely had no more than 18,000 pipes needing replacement in March 2017 is untenable.
A. The difference between the projected hit rate for 2017 (80%) and the observed hit rate (70.1%) does not prove that the 18,000 pipe ceiling was an overestimate
The City does not know how its original 80% projected hit rate was calculated. It cannot identify who generated the 80% figure, the process or modeling she used, or the data, records, and other specific factors she considered. Chaudhary Decl. ¶ 17; see Woods Decl. ¶¶ 13-14. The City has told Plaintiffs that “we just don’t know” what the projection was based on. Chaudhary Decl. ¶ 17.
When Plaintiffs raised concerns about this missing information, the City hypothesized that the 80% projection was based on a “review of available City records, age of local water-related infrastructure (fire hydrants/water mains), and other available data etc.” Id. Ex. 13. Assuming this is true, however, the City has not provided any information on how these factors were applied to calculate the 80% prediction; for example, what did the City assume about the relationship between the age of a fire hydrant on a block and the likelihood that homes on that
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same block have lead or galvanized steel service lines? Woods Decl. ¶ 14. More critically, the City offers no information on whether the factors that informed the predicted 80% hit rate have proven to be good predictors of the presence of lead and galvanized steel service lines; for example, does the presence of a fire hydrant installed before a certain year in fact reliably predict that homes on that block have lead or galvanized steel service lines? Id. ¶¶ 14-15.
Without information on the factors that went into calculating the 80% projection and whether those factors were accurate predictors of the presence of pipes that need replacing, the City cannot draw any reasonable conclusions about the significance of the difference between the predicted hit rate (80%) and the observed hit rate (70.1%) for the work completed through 2017. Id. ¶ 20. It certainly cannot conclude that its overestimation of the hit rate is a trend that will continue as the City expands its work to other areas of Flint. In other words, even if the City overestimated the proportion of lead and galvanized steel service lines in the areas where it conducted work in 2017, it cannot reasonably conclude that it also overestimated the proportion of lines for replacement in other areas of the City without analyzing the discrepancy between the 2017 predicted and observed hit rates. Id. ¶¶ 20-22.
To reach these conclusions in a sound way, the City should have identified all the factors it believes predict the presence of a lead or galvanized steel service
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line, built a model that predicts the outcome based on those factors, and then tested how well those factors performed as predictors using the data collected in 2017. See id. ¶¶ 18-19. The City has not done this analysis. Id. ¶ 15. Thus, contrary to the City’s assertion, the fact that the observed hit rate was lower than expected for 2017 does not, without more, prove that the “original 18,000 ceiling was likely an overestimation.” Chaudhary Decl. Ex. 13 at 1; see Woods Decl. ¶ 22.
B. The City provides no reasonable support for its projected decrease in hit rates for 2018 and 2019
The documents offered by the City provide no support for the second premise underlying its Paragraph 30 Report, that the projected hit rate will be 60% for work conducted in 2018 and 50% for work conducted in 2019. The 2016 density map does not show what the City claims. And the City’s citation to general factors, without explaining how those factors led to the City’s specific projections, do not suffice for the “evaluation” considering all available “data and information” that the Agreement requires. Agmt. ¶¶ 29-30. Plaintiffs cannot—and the Court should not—accept the City’s handwaving as adequate support for its projections.
1. The density map provides no support for the City’s projected declining hit rates
First, the City’s primary reliance on a density map created in 2016 by the University of Michigan-Flint, Chaudhary Decl. Ex. 14, is unwarranted. The City claims that it is reasonable to conclude that the map’s red shaded areas will have
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higher hit rates than the map’s green shaded areas and so, as the City’s excavation work moves away from the map’s red areas, the hit rate will necessarily decline. Chaudhary Decl. ¶ 17. While this argument is facially appealing, it is fundamentally flawed.
The City does not know, and the map does not indicate, what information the University of Michigan-Flint used to develop the map. Id.; see id. Ex. 14; Woods Decl. ¶ 27. To the extent the map relies on the City’s historical records of service line composition, those records were incomplete, and the map does not indicate whether it says anything about the more than 10,000 homes in Flint for which the City had no records in 2016. See Chaudhary Decl. Ex. 1 at 1-2; Woods Decl. ¶ 27. Moreover, the city records that were available when the map was created have been shown to be inaccurate to a significant degree. Chaudhary Decl. Ex. 5 at 5 (showing that 27% (16 of 58) of homes where city records showed a full copper service line in fact had at least partial lead or galvanized steel lines). Importantly, the map also does not appear to include information about homes that the City’s records indicate have copper service lines. Woods Decl. ¶ 26. Because of the lack of information about the data reflected in the map, one cannot infer anything from the map about the relative density of lead and galvanized steel service lines in different areas of Flint. See id. ¶¶ 30-32.
As a result, the map cannot support the City’s projected declines in the hit
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rate. This is because the hit rate depends on the total number of homes in a given area; the hit rate is equal to the total number of lead and galvanized service lines in an area, divided by the total number of replacement eligible households in that area. Thus, the total number of homes in the area—including homes with copper service lines—is a key component of the hit rate. Id. ¶¶ 30-31. Because the map does not say anything about the density of homes with copper service lines, one cannot draw any conclusions about the hit rates of the green shaded areas compared to the red shaded areas. Id. ¶¶ 31-39. For example, if a red shaded area contains 10 lead or galvanized service lines and 20 total homes, then the expected hit rate is 50%. If that same red shaded area contains 10 lead or galvanized steel service lines, but 100 total homes, then the expected hit rate is only 10%.
Moreover, the City’s reliance on a map created in 2016, before the Agreement was executed, is not sufficient to meet the Agreement’s requirement to “consider all relevant information available,” including information obtained through excavations completed after March 2017. Agmt. ¶ 29. The entire purpose of the Paragraph 30 analysis was to use new data to develop a reliable estimate of the total number of lead and galvanized steel service lines in Flint.
2. The City’s listing of general variables it considered, without more, provides no support for the City’s hit rate predictions
The variables the City repeatedly cites in support of its projected hit rates are hopelessly general, and the City has provided no explanation for how it applied
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those variables to calculate its specific 60% and 50% projections. For instance, the Follow-Up Summary identifies a few variables the City considered as part of its projections, including “age of local water-related infrastructure (fire hydrants/water mains), and other available data etc.” Chaudhary Decl. Ex. 13 at 1. But the general reference to the “age of local water-related infrastructure”—let alone “other available data etc.”—does not meaningfully explain why the City expects hit rates of 60% and 50% in the areas slated for work in 2018 and 2019, respectively.
The list of hydrants and the hydrant age map the City recently provided (Chaudhary Decl. ¶ 27 & Ex. 23-2) are more of the same. To be sure, it is intuitive to think that the age of fire hydrants on a certain block may correlate, to some degree, with the presence of lead and galvanized steel service lines. But the City has provided nothing to show how its hydrant map (with hydrant ages color-coded) and list of more than 3600 hydrants led to the specific projections that 60% and 50% of the service lines the City excavates in 2018 and 2019, respectively, will need to be replaced. See Woods Decl. ¶¶ 42-43. In this way, the City has sent Plaintiffs large amounts of raw data, but with no analysis of how those data fit together, or how the City used those data, to support its conclusions.14
To the extent the City purports to have used these data to inform its
14 The other “water card” maps recently provided by the City, Chaudhary Decl. Exs. 23-3, 23-4, likewise contain no description about how the information in the maps was used (if at all) to inform the conclusions in the Paragraph 30 Report.
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projections, its explanation for how it did so falls flat. The City’s general references to the “experiences” of the FAST Start program, the Department of Public Works’ “institutional knowledge of the age, and condition of the City’s infrastructure,” and AECOM’s “professional experience,” Chaudhary Decl. Ex. 11 at 2, are not a reasonable foundation for the specific 60% and 50% projections. This amounts to a plea from the City to trust its say-so about where the lead and galvanized service lines are in Flint. Reliance on personal, undocumented experience alone is unjustified, especially when the City has provided no details on the specific experience of the officials on whom it is relying, “how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Cf. Fed. R. Evid. 702 adv. comm. note. These kinds of speculative estimates are exactly what the Agreement sought to avoid by requiring the Paragraph 30 analysis.
The City’s recent reliance on the reported 37.2% hit rate for the 954 excavations conducted between April 26 and June 4, 2018, Chaudhary Decl. Ex. 23, does not support the City’s projected hit rates, either. The City has provided no information about how those 954 homes relate to the factors the City relies on (e.g., how old are the hydrants near those homes?), or about whether those 954 homes are representative of the full area in which excavations will be conducted in 2018. See Woods Decl. ¶¶ 44-49. Without this information, there is no basis to
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conclude that the low hit rate observed was not due to chance. Id. In sum, although the factors the City cites seem appealing because they
could be plausibly related to the likely presence of lead and galvanized steel service lines, the City has provided no analysis or explanation for how it applied those factors to derive its specific predictions. Its predictions have thus effectively emerged from a black box. This Court should not give credit to conclusions that cannot be explained.
3. Even assuming there is some support for a declining hit rate in 2018 and 2019, the City has not supported its specific numeric projections
Even if the Court accepts the broad notion that the hit rate may decrease as the City moves into the areas slated for excavations in 2018 and 2019, the City has offered only its ipse dixit in support of its specific prediction that the hit rate will decrease by 10% in each of the next two years. The City has not explained how it calculated those specific reductions (and has conceded that its derivation of these reductions was “not statistical,” Chaudhary Decl. ¶ 19), and has failed to provide a complete, precise list of factors the City considered and how it applied those factors. Indeed, it appears that the 60% and 50% predictions are guesses.
The basis for these predictions is even more puzzling considering that the City had not yet identified which areas were slated for work in each of 2018 and 2019 at the time the City submitted its Paragraph 30 Report. See Chaudhary Decl.
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Ex. 17. How could the City differentiate between the likelihood of discovering a lead or galvanized steel service line in 2018 versus 2019 when it had not even determined in which areas it would conduct excavations in each of those years?
This is a dispositive problem, because the amount by which the hit rate will decline will determine how much funding the City will need to complete the required service line replacements. The City anticipates that it will need all but roughly $528,000 of the available $97 million in funding. If the City’s hit rate estimates are wrong by just two percent, it will not have enough money.15 III. The City’s conclusion that it will not need additional funding to
complete its obligations under the Agreement is invalid Because the City’s conclusion about the total number of lead and galvanized steel service lines is untenable, so too is its conclusion about the funding needed to replace the remaining lines. The City’s calculations (which apply its unsupported hit rates, see supra pp. 20-26) indicate that it expects to replace only 5169 more service lines in 2018 and 2019. See Chaudhary Decl. Ex. 8 at 2, 4. The City’s cost estimates indicate that if the City completes 913716 more excavations and replaces
15 6000 excavations in 2018 * 62% hit rate = 3720 replacements, 120 more than the City anticipates. 3173 excavations in 2019 * 52% hit rate = 1650 replacements, 63 more than the City anticipates. Thus, if the City’s hit rates are 2% too low, it will need to complete an additional 183 replacements, requiring $912,255 (assuming $4985 per replacement).
16 Again, the City’s arithmetic appears incorrect. The City’s budget chart reports that it will conduct 9137 more excavations, Chaudhary Decl. Ex. 8 at 4,
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an additional 5169 pipes, it will have only $528,000 left of the $97 million, plus an additional $2 million the City budgeted for “[c]onstruction contingenc[ies].” See id.; see supra pp. 8-9. Assuming there are no other construction contingencies requiring extra expenses, this remaining funding will cover at most an additional 507 replacements. See supra note 7.
But the City cannot draw a valid conclusion about the funding needed until it has a sound estimate for how many pipes it must excavate and replace. As explained supra pp. 14-17, the City’s calculations considered only 18,000 homes in Flint, and ignored the remaining 10,400 homes by virtue of its manipulated formula. Its projected hit rates for work expected in 2018 and 2019 are also unsupported. See supra pp. 20-26. As a result, the City’s estimates about the number of lead and galvanized pipes to be replaced are likely off by thousands. The City will run out of money. The Court must therefore reject the City’s conclusion that the $97 million in available funding will be sufficient to complete the required excavations and pipe replacements. IV. A revised evaluation is necessary to implement the Agreement
Plaintiffs ask the Court to implement the Agreement to preserve the positions for which the parties bargained and ensure that the City conducts enough
transposing two digits from the statement earlier in its Report that it will complete 9173 more excavations (the latter number is also incorrect, see supra note 5).
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excavations to identify and replace Flint’s lead and galvanized steel service lines. Plaintiffs therefore request that the Court order the City to revise its Paragraph 30 Report using one of the methods described below.
Creation of a sound predictive model. Plaintiffs request that the Court order the City to create a sound model that will predict the total number of lead and galvanized steel service lines in Flint as of March 28, 2017. The City has said that it does not have staff with the relevant expertise to conduct statistical modeling. Chaudhary Decl. ¶ 19. Thus, Plaintiffs request that the Court order the City to hire a consultant (a statistician) with expertise in predictive modeling to construct and run the model. The City must ensure that the statistician uses well-documented and well-established statistical methods to support his or her modeling decisions.
Before running the model, the City should provide to all parties for review and comment a clear and complete description of all analytical assumptions and methods in the proposed model, and Plaintiffs ask that the Court provide the parties an opportunity to raise objections to the proposed model. The Court should then require the City to update its predictions with the model results, and to recalculate a data-informed estimate of the total number of replacement eligible homes with service lines needing replacement. The Court should require the City to revise its Paragraph 30 Report using the model results, and to include with the revised Report all explanatory and outcome data in addition to the model’s results.
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In light of the City’s persistent failure to meet deadlines imposed under the Agreement, see Pls.’ Mot. to Enforce Settlement Agmt. 4-14, ECF No. 155, Plaintiffs respectfully request that the Court issue the following interim deadlines to ensure that the City promptly completes the modeling work:
• 8/22/2018, or 1 week after this Court’s order on the motion (whichever is earlier): The City must propose 3 experts for the project
• 1 week thereafter: The parties must agree on an expert for the project • 2 weeks thereafter: The City must submit the proposed model to all
parties for review and comment • 1 week thereafter: Plaintiffs and the State provide comments and/or raise
objections on proposed model • 1 week thereafter: The parties resolve any comments and objections on
the proposed model from Plaintiffs or the State • 2 weeks thereafter: The City must submit a revised Paragraph 30 Report Expediently fixing the problems with the City’s Paragraph 30 Report is critical because the City has already begun conducting excavations for the second of the three years of work under the Agreement. Chaudhary Decl. Ex. 23. The City has already begun to plan for both the second and third years of work (2018 and 2019). Application of the observed hit rate. If the City declines to conduct the modeling analysis described above, or fails to meet any of the deadlines ordered by the Court, then Plaintiffs respectfully request that the Court order the City to revise its Paragraph 30 Report by applying the observed hit rate to date to the total number of occupied homes at which the City has not yet conducted excavations. As described above, the City has not used all its data to assess whether the
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factors it purports to rely on (such as the age of nearby fire hydrants or city

records) are in fact good predictors of the presence of service lines needing

replacement. See Woods Decl. ¶¶ 12-22. In the absence of this assessment, the

observed hit rate (70.7% as of Feb. 8, 2018) is a sound predictor of the future hit

rate. Id. ¶¶ 52-56. Indeed, in a May 2018 letter to EPA, the City applied exactly the

approach Plaintiffs suggest, using a 70% projected hit rate to conclude that the City

“has approximately 14,000 lead, galvanized or other left to replace.” Chaudhary

Decl. Ex. 19. Applying the 70.7% hit rate yields an estimate of 20,083 total lead

and galvanized steel service lines as of March 28, 2017. Woods Decl. ¶ 57.

This is likely a conservative approach. But see id. ¶ 57 nn.15 & 18. The City

may have access to data that would support different assumptions and ultimately

yield a lower estimate for the total number of lead and galvanized steel service

lines in Flint. But the City has failed to provide any such data, or any support for

applying a different hit rate, despite Plaintiffs’ repeated requests. See, e.g.,

Chaudhary Decl. Exs. 9, 12 at 2-3, 15 at 4; Woods Decl. ¶ 13.

CONCLUSION

For the foregoing reasons, Plaintiffs request that the Court order the above-

described relief to enforce the Settlement Agreement.

Dated: June 21, 2018

Respectfully submitted,

/s/ Sarah C. Tallman___________ Sarah C. Tallman

/s/ Michael J. Steinberg__________ Michael J. Steinberg (P43085)

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Natural Resources Defense Council 20 North Wacker Drive, Suite 1600 Chicago, IL 60606 (312) 651-7918 stallman@nrdc.org
Dimple Chaudhary Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 289-2385 dchaudhary@nrdc.org

American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org
Counsel for Plaintiff American Civil Liberties Union of Michigan

Counsel for Plaintiffs Concerned Pastors for Social Action, Melissa Mays, and Natural Resources Defense Council, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on June 21, 2018, I electronically filed Plaintiffs’ Motion to Enforce Paragraphs 29 and 30 of Settlement Agreement and accompanying Brief and exhibits with the Clerk of the Court using the ECF system.
/s/ Sarah C. Tallman Natural Resources Defense Council 20 N. Wacker Drive, Suite 1600 Chicago, IL 60606 (312) 651-7918 stallman@nrdc.org
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 Case 2:16-cv-10277-DML-SDD ECF No. 173 filed 07/13/18 PageID.8487 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CONCERNED PASTORS FOR SOCIAL ACTION, et al.,
Plaintiffs, v.

Case No. 16-10277 Hon. David M. Lawson

NICK A. KHOURI, et al.,

Mag. J. Stephanie Dawkins Davis

Defendants. /

PLAINTIFFS’ MOTION TO ENFORCE PARAGRAPHS 38 AND 117 OF SETTLEMENT AGREEMENT AND FOR CONSOLIDATED HEARING

Plaintiffs Concerned Pastors for Social Action, Melissa Mays, American

Civil Liberties Union of Michigan, and Natural Resources Defense Council

respectfully move the Court to order relief necessary to ensure the City of Flint’s

and City Administrator’s immediate compliance with Paragraphs 38 and 117 of the

Settlement Agreement ordered by the Court on March 28, 2017. See ECF

Nos. 147-1, 152. Plaintiffs also respectfully ask this Court to set a modified

briefing schedule and to consolidate hearing of this motion with the already

scheduled August 1 hearing. See ECF No. 168.

On July 12, 2018, counsel for Plaintiffs communicated with opposing

counsel in accordance with Local Rule 7.1(a) explaining the nature of the relief

sought in this motion and seeking concurrence in the relief. State Parties indicated

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that they do not support or oppose the relief sought. Counsel for the City indicated that they have not been able to consult with City Administration to determine the City’s position on this motion.

Dated: July 13, 2018

Respectfully submitted,

/s/ Sarah C. Tallman___________ Sarah C. Tallman Natural Resources Defense Council 20 North Wacker Drive, Suite 1600 Chicago, IL 60606 (312) 651-7918 stallman@nrdc.org
Dimple Chaudhary Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 289-2385 dchaudhary@nrdc.org

/s/ Michael J. Steinberg__________ Michael J. Steinberg (P43085) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org
Counsel for Plaintiff American Civil Liberties Union of Michigan

Counsel for Plaintiffs Concerned Pastors for Social Action, Melissa Mays, and Natural Resources Defense Council, Inc.

Sarah V. Fort Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 513-6247 sfort@nrdc.org

Of counsel for Plaintiff Natural Resources Defense Council, Inc.

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Case 2:16-cv-10277-DML-SDD ECF No. 173 filed 07/13/18 PageID.8489 Page 3 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CONCERNED PASTORS FOR SOCIAL ACTION, et al.,
Plaintiffs, v.

Case No. 16-10277 Hon. David M. Lawson

NICK A. KHOURI, et al.,

Mag. J. Stephanie Dawkins Davis

Defendants. /

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION TO ENFORCE PARAGRAPHS 38 AND 117 OF SETTLEMENT AGREEMENT AND FOR
CONSOLIDATED HEARING

Case 2:16-cv-10277-DML-SDD ECF No. 173 filed 07/13/18 PageID.8490 Page 4 of 28
TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii CONCISE STATEMENT OF THE ISSUE PRESENTED..................................... iii CONTROLLING AUTHORITIES...........................................................................iv INTRODUCTION .....................................................................................................1 STATEMENT OF FACTS ........................................................................................2 I. The City’s filter verification obligations under the Settlement
Agreement ........................................................................................................ 2 II. The City’s May 25 status report and subsequent correspondence ..................4 III. The City’s past noncompliance with its filter verification obligations ...........9 STANDARD OF REVIEW .....................................................................................10 ARGUMENT ...........................................................................................................11 I. The City is violating Paragraphs 38 and 117 of the Settlement Agreement
and endangering public health.......................................................................11 A. The City is delaying faucet filter verification, violating the
Agreement’s requirement to act “immediately” ................................11 B. The City still has not made the three required attempts to ensure
faucet filter verification at dozens of homes .......................................12 C. The City has failed to adequately document and report filter
verification efforts ...............................................................................14 II. The Court should order the City to comply with Paragraphs 38 and 117
and provide additional reporting....................................................................16 CONCLUSION ........................................................................................................19
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TABLE OF AUTHORITIES CASES
Frew ex rel. Frew v. Hawkins, 540 U.S. 431 (2004).......................................................................................10
Pedreira v. Sunrise Children’s Servs., Inc., 802 F.3d 865 (6th Cir. 2015) .........................................................................10
Shy v. Navistar Int’l Corp., 701 F.3d 523 (6th Cir. 2012) .........................................................................10
United States v. Apple Inc., 992 F. Supp. 2d 263 (S.D.N.Y. 2014), aff’d, 787 F.3d 131 (2d Cir. 2015) ..........................................................................16
Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084 (6th Cir. 2016) .......................................................................10
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CONCISE STATEMENT OF THE ISSUE PRESENTED To protect Flint residents against spikes in lead levels immediately following service line replacement, the Settlement Agreement requires the City of Flint to “make a good faith effort to ensure that each household has a properly installed Faucet Filter immediately after its service line replacement.” The City has failed to do so—the latest in a string of serious, systemic violations of the Settlement Agreement’s terms. Should the Court order the City to comply with its obligations under the Agreement and order additional reporting to bolster compliance?
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CONTROLLING AUTHORITIES Shy v. Navistar Int’l Corp., 701 F.3d 523 (6th Cir. 2012) Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084 (6th Cir. 2016)
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INTRODUCTION The Court-ordered Settlement Agreement resolving Plaintiffs’ Safe Drinking Water Act claims requires the City of Flint to replace thousands of lead and galvanized steel service lines that connect homes in Flint to the public water system. But the Agreement does not end there. It spells out clear, specific steps the City must take to protect public health while service lines are being replaced. In particular, to protect against spikes in lead levels, the Agreement requires the City to ensure that faucet filters are properly installed immediately at each home where a service line is replaced. The City must provide Plaintiffs with documentation proving it has done so. These measures are not suggestions. They were negotiated for and agreed to by all parties. They provide critical protections against further lead exposure in Flint. Without them, there is a risk that service line replacement could make things worse, not better, in the short term for some Flint residents. Despite the importance of these terms, the City’s most recent status report shows that the City is failing to ensure filter installation. The City’s failures take three forms. First, the City has consistently taken far too long to verify filter installation; though the Agreement calls for immediate verification, the City has routinely taken weeks to contact households after service line replacements, with some households waiting more than eight weeks before being contacted. Second,
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even after Plaintiffs put the City on notice of these violations, the City still has not undertaken the required efforts to verify proper filter installation at dozens of households where pipe replacements occurred between April 1 and June 1, 2018. Third, the City has not maintained adequate records of filter verification, making it impossible for Plaintiffs to ensure that the Agreement is being implemented properly.
These failures are a serious breach of the Agreement. And they are only the most recent examples of the City’s failure to comply. The City’s cavalier approach over the last sixteen months reveals either an unwillingness or an inability to fulfill its legal obligations under the Agreement and its duty to protect public health. Regardless, the City’s violations are jeopardizing the safeguards that Plaintiffs negotiated on behalf of Flint’s residents.
Accordingly, Plaintiffs ask this Court to order the City to immediately comply with Paragraphs 38 and 117 of the Settlement Agreement. Plaintiffs further ask the Court to require weekly status reports until the City demonstrates compliance with the Agreement’s filter requirements.
STATEMENT OF FACTS I. The City’s filter verification obligations under the Settlement
Agreement In March 2017, the parties, the State of Michigan, and the Michigan Department of Environmental Quality entered into a binding Settlement
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Agreement resolving Plaintiffs’ claims under the Safe Drinking Water Act. See Settlement Agmt. (Agmt.), ECF No. 147-1. The Agreement requires the City to replace thousands of lead and galvanized steel service lines at occupied homes in Flint by January 1, 2020. See id. ¶¶ 8-20. The Agreement also directs the City to take additional steps at the time of service line replacement. See id. ¶¶ 34-38. Among other requirements, the City must “make a good faith effort to ensure that each household has a properly installed Faucet Filter immediately after its service line replacement is complete.” Id. ¶ 38 (emphasis added). At a minimum, this effort “shall include three attempts to obtain access to a household to properly install a Faucet Filter.” Id.
Paragraph 38’s filter verification requirements serve an important public health purpose. When lead pipes are disturbed, including during service line replacement, there is a risk that lead can mobilize, causing significant short-term spikes of lead levels in drinking water. See, e.g., Tallman Decl. Exs. A at 1-2, 6, 7 (American Water Works Association, “Communicating About Lead Service Lines”); B at x (American Water Works Association, “Replacement and Flushing of Lead Service Lines”) (describing lead service line replacement as “rais[ing] concerns about elevated lead levels”); C at 2 (U.S. EPA, Science Advisory Board, “Drinking Water Committee Augmented for the Review of the Effectiveness of Partial Lead Service Line Replacements”) (explaining that service line replacement
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“generally result[s] in elevated Pb levels for a variable period of time after replacement”). These spikes can occur immediately after service line replacement, and can persist for weeks or months. See, e.g., id. Ex. A at 6, 7. Thus, though service line replacement is an effective long-term strategy for reducing lead contamination, it should be accompanied by immediate filter use to protect against short-term lead exposure. See id.; cf. Dec. 27, 2017 Chaudhary Decl. Ex. I at 2, ECF No. 155-2 (“Proper installation is critical to protect residents from spikes in lead release that can occur as a result of the physical disturbance of pipes during service line replacement.”).
The Agreement includes reporting and disclosure provisions to ensure the City’s compliance with its filter verification obligations. The City must regularly report to Plaintiffs not only the number of households where service lines have been replaced, but also, for each household, whether proper installation of a filter has been verified. Agmt. ¶ 117.c.i-ii. Such reports should include “any underlying documentation or records.” Id. ¶ 117. The City must also respond within 14 days to requests by Plaintiffs for information on filter verification. Id. ¶ 118. II. The City’s May 25 status report and subsequent correspondence
On May 25, pursuant to Paragraph 117 of the Agreement, the City produced a quarterly status report covering the period from February 15, 2018, to May 14, 2018. See Tallman Decl. Ex. D. The report documented service line replacement at
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61 households.1 Id. With the report, the City provided several spreadsheets with data on each service line replacement. See id. Ex. E.
According to the “Filter Installation Tracking” tab of the City’s May dataset, the City did not make any attempt to verify filter installations at any of the households at which replacements occurred until May 16, 2018, nine days before the City’s status report was due. See id. On that date, the City attempted telephone calls to 45 households where service lines had been replaced over the preceding four weeks. Id. For seven households, the spreadsheet indicates only that the City had no contact name or number; it shows no evidence of any effort to contact the residents at these homes. Id. Ten households where service line replacements occurred between May 14 and May 18 are not even listed on the “Filter Installation Tracking” tab. Id.
Of the 45 households that the City attempted to contact to verify filter installation, the spreadsheet indicates that three refused filters. Id. Eleven households scheduled a date and time that they would be available for the City to deliver a filter and verify installation; though all of these appointments preceded
1 The status report stated that service line replacement had occurred at 52 households during the February 15–May 14 time period. Tallman Decl. Ex. D. However, the data provided by the City with its report documented an additional nine households at which service lines were replaced between May 15 and May 18. See id. Ex. E at 3 (showing nine rows with pipe replacements dated May 16 or later).
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the May 25 reporting date, the spreadsheet provides no indication of whether filter verification actually occurred. Id. For the other 31 households listed in the “Filter Installation Tracking” tab, the City at most left a voicemail; the spreadsheet includes no indication of any further attempt to contact these households. Id. Thus, as of May 25, the City had fulfilled its Paragraph 38 obligations for just three of the 61 households that received new service lines between February 15 and May 18—the three that refused further contact. The May 25 status report did not document a single household at which the City had actually verified proper filter installation.
On June 1, 2018, Plaintiffs notified the City that it was in violation of Paragraphs 38 and 117 of the Settlement Agreement. See Tallman Decl. Ex. F. Plaintiffs stated that “the City is failing to ensure that residents have a properly installed faucet filter immediately after service line replacement.” Id. at 1. Plaintiffs pointed out that the violations were “part of an ongoing pattern of noncompliance by the City.” Id. at 2-3.
On June 14, 2018, the parties discussed by phone the City’s violations. See Tallman Decl. ¶ 10. On June 22, the City provided a memorandum explaining “the City’s efforts to verify filter installations . . . for those homes at which a service line was replaced between April 1 and June 1, 2018.” See id. Ex. G. Enclosed with that memorandum was a table of 103 homes at which service lines were replaced
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between April 1 and June 1 (“Table 1”), as well as a separate table documenting filter verification efforts at these homes (“Table 2”). Id. The June 22 correspondence also included a third table, “Table 3,” documenting an additional 21 households at which the City replaced service lines between April 1 and June 1 during its next “phase” of service line replacement work. Id.
The June 22 data documents the date of service line replacement, id. (tbl. 1, column labeled “Date work performed”), and the date the City first sought to verify proper filter installation, id. (tbl. 2, column labeled “First Visit”). For over three-quarters of the 103 households listed in Tables 1 and 2 of the June 22 data, more than seven days passed between service line replacement and the first attempt at contact by the City; for several homes, the delay was more than 50 days. Fort Decl. ¶ 9; see Tallman Decl. Ex. G. For these 103 households, an average of 21 days passed before the City first attempted contact. Fort Decl. ¶ 10; see Tallman Decl. Ex. G.
As of June 22, the City had not verified filter installation at 35 of the 103 homes listed in Table 2. See Fort Decl. ¶ 8 & Ex. A. These 35 households included 23 households from the City’s May dataset, plus an additional 12 homes at which service line replacement occurred between May 15 and June 1. See id. Ex. A.
On July 3, Plaintiffs sent a letter to the City asking it to remedy its ongoing noncompliance with Paragraphs 38 and 117. See Tallman Decl. Ex. H. Plaintiffs
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asked the City, within seven days, to provide documentation that it had met its obligations to verify filter installation at the 34 homes for which Table 2 showed noncompliance.2 Plaintiffs also sought assurances that the City had put in place operating procedures that would ensure compliance moving forward. See id. Ex. H. On a telephone call that same day, counsel for the City informed Plaintiffs’ counsel that the City would not be able to provide a full response within the requested time period. See id. ¶ 11. As of the time of filing, Plaintiffs have received no further assurances from the City that it has conducted any additional filter verification efforts at these homes.
Following Plaintiffs’ June 1 letter notifying the City of its violations, the City produced a set of procedures that it represented will govern service line replacements moving forward. Id. Exs. I, J. The procedures do not describe the specific steps the City’s contractors will take to complete the required three attempts to verify filter installation, and do not provide a deadline for accomplishing these attempts. See id. Ex. I at 13. After additional inquiries from Plaintiffs, the City provided further correspondence concerning its plans, id. Ex. G at 1-2, but conceded that it still could not provide any information “regarding who
2 Plaintiffs’ July 3 letter inadvertently omitted one household at which the City has not made three good-faith attempts to verify filter installation. The correct number of households for which the City has not fulfilled its Paragraph 38 obligations is 35. See Fort Decl. ¶ 8 & Ex. A.
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exactly is responsible for second and third attempts, their scheduling, and their timeframe.” Id. Ex. K. III. The City’s past noncompliance with its filter verification obligations
In December 2017, following months of noncompliance by the City, Plaintiffs moved to enforce the Agreement’s reporting and disclosure provisions. See Pls.’ Dec. 27 Mot. to Enforce Settlement Agmt., ECF No. 155. The violations described in Plaintiffs’ motion included the City’s persistent failure to provide documentation concerning whether immediate filter verification was completed following each service line replacement. Id. at 6-9. Plaintiffs had notified the City in writing of this noncompliance again and again—more than eight separate times—during the first year of the Agreement’s implementation. Id. at 6. Nonetheless, by the time pipe replacements had stopped for the winter in late 2017, Plaintiffs had been unable to obtain information sufficient to assess whether each of the thousands of households at which service lines had been replaced were protected from the risk of lead spikes immediately thereafter. Id. at 9. The limited information the City provided suggested that it was not coordinating with the State with sufficient frequency to ensure immediate filter verification. Id. at 7-9.
Plaintiffs’ December 2017 motion to enforce remains pending with the Court. See Stipulated Order on Pls.’ Mot. to Enforce Settlement Agmt. 1, ECF No. 164. Pursuant to a Stipulated Order, the Court required the City to improve its
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reporting and recordkeeping on filter verifications after service line replacements. For all future status reports for the duration of the Agreement, the City must provide, “in a reasonably usable format,” information showing, “for each address at which a service line was replaced: the date of service line replacement; the date(s) and time(s) of any visit(s) from the City or its contractors to verify whether a faucet filter was properly installed following service line replacement; and the result of any such visit(s) (i.e., whether verification was successful).” Id. at 1-2.
STANDARD OF REVIEW The Settlement Agreement operates as a consent decree. See Pedreira v. Sunrise Children’s Servs., Inc., 802 F.3d 865, 871 (6th Cir. 2015). “Federal courts are not reduced to approving consent decrees and hoping for compliance.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 440 (2004). Rather, “[o]nce entered, a consent decree may be enforced,” id., and this Court has “broad equitable remedial powers” to do so, Shy v. Navistar Int’l Corp., 701 F.3d 523, 533 (6th Cir. 2012) (internal quotation marks omitted). The Agreement thus provides “a prospective form of relief involving continuous court oversight.” Whitlock v. FSL Mgmt., LLC, 843 F.3d 1084, 1094 (6th Cir. 2016).
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ARGUMENT I. The City is violating Paragraphs 38 and 117 of the Settlement
Agreement and endangering public health A. The City is delaying faucet filter verification, violating the
Agreement’s requirement to act “immediately” Paragraph 38 of the Agreement requires the City to make a good-faith effort to ensure proper filter installation “immediately after” service line replacement. There is an important reason for the Paragraph’s urgency: it protects Flint residents against the significant short-term spikes in lead levels that can occur after a service line is replaced. See Tallman Decl. Ex. A at 1-2, 6, 7. A filter verification that takes place weeks or months after pipe replacement does not protect Flint residents from exposure to elevated lead levels that may have occurred in the interim. The City’s own documents show that it routinely delays for weeks, and even months, before attempting to verify proper filter installation. For the 103 households included in Tables 1 and 2, the City waited an average of 21 days after service line replacement before visiting the home to verify proper filter installation. See Fort Decl. ¶¶ 4, 10 & Ex. A. For 14 households, the City first attempted to visit the home 35 days or more after service line replacement; in four instances, the first attempt took more than 50 days. Id. Ex. A.
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In Paragraph 38, as in everyday usage, “immediately” means immediately. The City’s delay in attempting to verify filter installation at these households is a flagrant violation of the Settlement Agreement.
B. The City still has not made the three required attempts to ensure faucet filter verification at dozens of homes
The City has not only failed to comply with Paragraph 38’s urgent timeline; it has also failed to perform the actions required by that Paragraph. In signing the Agreement, the City committed to “make a good faith effort to ensure” that a filter was properly installed at each household where a service line was replaced. Agmt. ¶ 38. The Agreement is clear as to what that means: such an effort “shall include three attempts to obtain access to a household.” Id.
By the City’s own records, there are at least 35 homes where new service lines were installed between April 1 and June 1, but at which the City still has not made three attempts to obtain access to the household to ensure proper filter installation. See Fort Decl. ¶ 8 & Ex. A. Instead, City representatives conducted an unsuccessful first attempt, then never returned. For instance, pipe replacement occurred at Household 081 on May 16, 2018. See Tallman Decl. Ex. G tbl. 1, line 81. Nearly two weeks later, on May 29, the City made its first attempt to access the home to verify proper filter installation. See id. tbl. 2, line 81. Though the City did not verify that a filter was installed on that visit, as of June 22—well over a month after the service line had been replaced—no one from the City had
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made a second attempt to contact the residents. See id. Tables 1 and 2 tell similar stories for dozens of other households. Compare, e.g., tbl. 1, line 81 (service line replaced on May 16, 2018), with tbl. 2, line 81 (“First Visit” recorded as May 29, 2018, no second or third visit recorded); tbl. 1, line 10 (service line replaced on May 22), with tbl 2, line 10 (“First Visit” recorded as June 4; no second or third visit recorded); tbl. 1, line 14 (service line replaced on April 26), with tbl. 2, line 14 (“First Visit” recorded as May 29; no second or third visit recorded).
Again, the City’s continued failure to verify proper filter installation is not simply a breach of the Agreement’s terms. It is a broken promise to the City’s residents to protect against both long-term and short-term lead exposure. And it is not a mere oversight. These violations have persisted even after Plaintiffs brought them to the City’s attention and allowed ample time for the City to come into compliance. Notably, Plaintiffs notified the City on June 1 that it had failed to complete a good-faith effort to verify filter installation at the households included in the City’s May 25 status report. See Tallman Decl. Ex. F. On July 3, Plaintiffs presented the City with a list of households at which the City had not fulfilled its Paragraph 38 obligations. See id. Ex. H. As that letter made clear, nearly two dozen of these homes were included in the City’s May dataset and mentioned in Plaintiffs’ June 1 Notice of Violation. Id. at 1-2. Plaintiffs asked the City to “immediately fulfill” its Paragraph 38 obligations at these homes. Id. at 2.
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Nonetheless, as of the date of this filing, the City has not produced any evidence of further attempts to contact these households.
By continuing service line replacements without providing the protections required by Paragraph 38, the City has manufactured an avoidable risk to human health. This failure to implement the Agreement’s public health protections, like the unresponsiveness described in Plaintiffs’ prior motions to enforce, “raises larger questions about [the City’s] competency.” Pls.’ Dec. 27 Mot. to Enforce Settlement Agmt. 19.
C. The City has failed to adequately document and report filter verification efforts
In addition to requiring the City to verify filter installation, the Agreement mandates that the City document “whether proper installation of a Faucet Filter after replacement was verified,” and provide Plaintiffs with “any underlying documentation or records.” Agmt. ¶ 117.
The City’s May 25 status report and subsequent correspondence reveal troubling, persistent gaps and inconsistencies in the City’s tracking and reporting systems. Most obviously, the May 25 and June 22 datasets are produced in entirely different formats and capture different information, suggesting a lack of uniformity in data collection efforts and frustrating Plaintiffs’ attempts to track, on a household-by-household basis, filter verification efforts. Compare Tallman Decl. Ex. E with id. Ex. G. Beyond these problems, the information provided by the two
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datasets is incomplete or inconsistent. For instance, the May 25 status report purports to document all homes where service line replacement occurred between February 15 and May 14, but the City’s June 22 documentation lists at least two additional homes that do not appear in the May dataset as having received service line replacements in that time frame. See Fort Decl. ¶ 11. For two households, the June 22 data indicates that filter verification was “complete[d]” on a date for which no visit was recorded. See id. ¶ 15. For all 61 households that are included in both the May 25 report and June 22 data, the June 22 table lists a date for service line replacement that is one day later than the day recorded in the May 25 report. Id. ¶ 12. And in many instances, the “[s]chedule date” for filter installation set out in the May 25 status report differs from the “First Visit” date in the June 22 memorandum. Compare, e.g., Tallman Decl. Ex. E (May dataset) at “Filter Installation Tracking” tab, line 31 (showing scheduled date of filter installation for household as May 17); with id. Ex. G (June 22 memorandum) at tbl. 2, line 22 (showing first visit for same household as May 30).
These violations are serious, and part of a larger pattern of inadequate recordkeeping and reporting by the City. See, e.g., Pls.’ Dec. 27 Mot. to Enforce Settlement Agmt. Inadequate, inconsistent, and confusing documentation makes it nearly impossible for Plaintiffs to verify that the City is complying with the Agreement and protecting public health.
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II. The Court should order the City to comply with Paragraphs 38 and 117 and provide additional reporting This is Plaintiffs’ third motion to enforce to date. Plaintiffs’ first motion
detailed the City’s repeated failure “to provide timely, complete, and accurate status reports” and to respond to requests for information necessary to monitor compliance. Pls.’ Dec. 27 Mot. to Enforce Settlement Agmt. 5. Plaintiffs’ second motion detailed “the City’s refusal to conduct the required evaluation” necessary to accurately estimate the remaining number of lead and galvanized service lines in Flint. Pls.’ Mot. to Enforce Pars. 29 and 30 of Settlement Agmt. 3, ECF No. 166. And these motions do not reflect the full scope of the City’s noncompliance: Plaintiffs have sought relief from the Court only as a last resort. The briefs on these motions document only a fraction of the phone calls, correspondence, and other efforts through which Plaintiffs have sought to bring the City into compliance with its obligations. See, e.g., Pls.’ Dec. 27 Mot. to Enforce Settlement Agmt. 20.
Despite the City’s pattern of noncompliance, Plaintiffs do not yet seek contempt sanctions, civil penalties, or the appointment of a master or monitor to oversee compliance. See, e.g., United States v. Apple Inc., 992 F. Supp. 2d 263, 280 (S.D.N.Y. 2014), aff’d, 787 F.3d 131 (2d Cir. 2015) (concluding that “external monitors have been found to be appropriate where consensual methods of implementation of remedial orders are unreliable or where a party has proved resistant or intransigent to complying with the remedial purpose of the injunction
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in question” (internal quotation marks omitted)). But the current situation cannot stand.
Accordingly, Plaintiffs seek the following relief to compel the City’s immediate compliance with its filter verification obligations:
Specification of a timeline for the City’s compliance with Paragraphs 38 and 117. Plaintiffs request that the Court order the City to fulfill its commitments under Paragraphs 38 and 117 of the Settlement Agreement by specifying deadlines the City must meet for its first, second, and third attempts to verify filter installation after service line replacement. Specifically, Plaintiffs ask the Court to order the City to:
(1) Conduct a first attempt to verify faucet filter installation on the same day a service line replacement is completed at a household (i.e., “immediately”).
(2) Conduct a second attempt, if necessary, within 24 hours of the first attempt.
(3) Conduct a third attempt, if necessary, within 24 hours of the second attempt, so that all three attempts are completed within three days of the service line replacement.
(4) Document and report, at all service line replacement households, (a) the date and time of the first attempt at filter verification; (b) the result of the
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first attempt at filter verification; and, if applicable, (c) the date and time of the second attempt at filter verification; (d) the result of the second attempt at filter verification; (e) the date and time of the third attempt at filter verification; and (f) the result of the third attempt at filter verification. This relief is consistent with the reporting required by this Court’s March 27, 2018 Order. See ECF No. 164. (5) Conduct three in-person attempts to verify filter installation (in addition to any telephone outreach). Additional reporting on filter verification. In light of the City’s pattern of noncompliance with Paragraphs 38 and 117’s filter verification requirements, Plaintiffs ask the Court to order a period of more frequent and detailed reporting by the City on filter verification efforts. For the next three months, Plaintiffs ask the Court to require the City to produce weekly status reports to Plaintiffs documenting all filter installation verification efforts that have occurred during the weekly reporting period. At the conclusion of three months, if the parties agree that the City has adequately demonstrated compliance, the prior reporting schedule will resume. Expedited briefing and consolidated hearing. This Court has noticed a hearing on Plaintiffs’ prior motion to enforce, ECF No. 166, for August 1, 2018. Plaintiffs respectfully ask this Court to set a modified briefing schedule to allow
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this motion to be heard at the scheduled August 1 hearing. Such relief is

appropriate given the serious public health concerns at issue.

That the City has purportedly begun implementing new procedures for filter

verification, see supra pp. 8-9, does not obviate the need for this Court’s

intervention. Those procedures do not reflect a clear, specific plan to comply with

Paragraph 38. Plaintiffs’ requested relief is necessary to protect public health, and

well within the “broad equitable remedial powers” of the Court to enforce the

Agreement. Shy, 701 F.3d at 533 (internal quotation marks omitted).

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion to enforce the Court-ordered

Settlement Agreement should be granted.

Dated: July 13, 2018

Respectfully submitted,

/s/ Sarah C. Tallman___________ Sarah C. Tallman Natural Resources Defense Council 20 North Wacker Drive, Suite 1600 Chicago, IL 60606 (312) 651-7918 stallman@nrdc.org
Dimple Chaudhary Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 289-2385 dchaudhary@nrdc.org

/s/ Michael J. Steinberg_____ Michael J. Steinberg (P43085) Bonsitu Kitaba (P78822) American Civil Liberties Union Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6814 msteinberg@aclumich.org bkitaba@aclumich.org
Counsel for Plaintiff American Civil Liberties Union of Michigan

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Counsel for Plaintiffs Concerned Pastors for Social Action, Melissa Mays, and Natural Resources Defense Council, Inc. Sarah V. Fort Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 (202) 513-6247 sfort@nrdc.org Of counsel for Plaintiff Natural Resources Defense Council, Inc.
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CERTIFICATE OF SERVICE I hereby certify that on July 13, 2018, I electronically filed Plaintiffs’ Motion to Enforce Paragraphs 38 and 117 of Settlement Agreement and for Consolidated Hearing and accompanying Brief and exhibits with the Clerk of the Court using the ECF system.
/s/ Sarah C. Tallman Sarah C. Tallman Natural Resources Defense Council 20 North Wacker Drive, Suite 1600 Chicago, IL 60606 (312) 651-7918 stallman@nrdc.org
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 Case 2:16-cv-10277-DML-SDD ECF No. 211 filed 05/23/19 PageID.10381 Page 1 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

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

Plaintiffs, v.

Case Number 16-10277 Honorable David M. Lawson

NICK A. KHOURI, FREDERICK HEADEN, MICHAEL A. TOWNSEND, JOEL FERGUSON, MICHAEL A. FINNEY, SYLVESTER JONES, and CITY OF FLINT,

Defendants. /

ORDER AMENDING SETTLEMENT AGREEMENT

Based on the stipulation of the parties (ECF No. 210),

It is ORDERED that Paragraphs 72 through 77 and Paragraph 85 of the Settlement

Agreement (ECF No. 147-1) are AMENDED as follows:

1. Paragraph 85 End Date. Paragraph 85 of the Settlement Agreement provides that

the State’s CORE Program “shall make all reasonable efforts to complete an Initial Visit to [new

Flint Water System customers] (as defined in Paragraphs 72-73) within 14 days” of receiving

notice from the City that the new water account has been activated. Agmt. ¶ 85. The obligations

of the City, the State, and the plaintiffs under Paragraph 85 of the Settlement Agreement as

amended by this Order shall continue until December 31, 2019, or until the conditions of Paragraph

45 of the Settlement Agreement have been satisfied, whichever is sooner.

2. Third-Party Provider. The State intends to enter into a contract with a third-party

provider (“Third-Party Provider”) to carry out the State’s obligations under Paragraph 85 of the

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Settlement Agreement. The State’s contract with the Third-Party Provider shall incorporate the requirements of this Order. Under the contract, the Third-Party Provider shall provide compliance reports to the State every 14 days. The State shall send the first compliance report it receives from the Third-Party Provider to the plaintiffs within seven days of receipt. For all subsequent compliance reports, the State shall send those reports to the plaintiffs with the quarterly status reports required under Section X of the Settlement Agreement. The compliance reports shall include, at minimum, for each new water customer eligible for an Initial Visit, (i) the address of the household; (ii) the date, time, and outcome of any telephone call made by the Third-Party Provider; and (iii) the date(s), time(s), and outcome(s) of any attempts to make in-person contact with the resident.
3. The State’s Obligations. The State shall retain, train, and manage the Third-Party Provider; ensure that the Third-Party Provider implements the requirements set forth in this Order; and provide funding necessary for the Third-Party Provider to complete all requirements set forth in this Order. If the State does not enter into a contract with a Third-Party Provider or any such contract is cancelled prior to the End Date, the State shall be responsible for carrying out any obligation imposed by this Order on the Third-Party Provider. At the plaintiffs’ request, the State shall make the Third-Party Provider available for discussions with the plaintiffs concerning approaches to promote the effectiveness of the Filter Inspection and Education visits to new water customers.
4. The Plaintiffs’ Obligations. The plaintiffs shall review and assist with the development and production of the flyers, door hangers, and Education elements described in Paragraphs 8 through 10 of this Order.
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5. The City’s Obligations. The City shall continue to notify the plaintiffs and the State of any new Flint Water System customers within 30 days after activation of a new water account for the customer’s household. The City shall provide to the plaintiffs and the State, within 30 days after activation of a new water account, the new water customer’s name, address, parcel identification number, and telephone number if provided by the resident. The City shall distribute filter-education flyers to new water customers as set forth in Paragraph 9 of this Order. The City or its program manager shall also continue to provide updates to the State on the FAST Start Pipe Replacement Program every 14 days.
6. Initial Visits. An Initial Visit under Paragraph 85 of the Settlement Agreement shall be deemed completed if: (i) the requirements described in Paragraph 72.a of the Settlement Agreement have been satisfied, (ii) a resident refuses inspection when the Third-Party Provider makes telephone or in-person contact with a resident of the household, or (iii) a reasonable effort to complete an Initial Visit has been made as defined in Paragraph 7 of this Order. An Initial Visit under Paragraph 85 of the Settlement Agreement shall not be required for households that already have had their water service lines replaced or if an excavation confirmed that the public and private portions of the service line are made of copper.
7. Reasonable Efforts to Complete an Initial Visit. The Third-Party Provider will have made all reasonable efforts to complete an Initial Visit as required under Paragraph 85 of the Settlement Agreement, as modified in Paragraphs 1 through 6 of this Order, if the Third-Party Provider makes one attempt to contact the resident by telephone (if a telephone number has been provided by the City for that resident) to schedule a Filter Inspection and Education appointment, and visits the household at least twice to conduct the Filter Inspection and Education set forth in Paragraph 10 of this Order, but is unable to make in-person contact with a resident of the
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household. If the resident does not answer the telephone, the Third-Party Provider shall leave a voicemail message that includes information about how to schedule a Filter Inspection and Education visit with the Third-Party Provider.
8. Door Hangers. The Third-Party Provider shall leave a door hanger at a household where they are unable to make in-person contact during an attempted Initial Visit. The content of the door hangers shall be subject to the plaintiffs’ review and approval, and shall include information on the purpose of water filters and how to schedule an appointment for a visit from the Third-Party Provider to assist with filter installation. The door hanger shall include Spanish language information on the purpose of water filters and how to schedule an appointment for a visit from the Third-Party Provider.
9. Flyers. The State shall provide filter-education flyers to the City, and the City shall provide these flyers to all Flint residents who come to City Hall to apply for water service with the City. The content of the flyer shall be written by the plaintiffs and shall include information on the purpose of water filters and how to schedule an appointment for a visit from the Third-Party Provider to assist with filter installation. The flyer shall include Spanish language information on the purpose of water filters and how to schedule an appointment for a visit from the Third-Party Provider. The State shall provide sufficient copies of the flyer to the City to enable it to carry out the requirements of this Paragraph.
10. Filter Inspection and Education. The “Filter Inspection and Education” conducted by the Third-Party Provider during an Initial Visit must, at a minimum, include the following elements:
a. Engagement
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i. The Third-Party Provider will explain to a resident of the household that they are visiting to inspect the household’s Faucet Filter to ensure it is properly installed and working and to provide information and training related to Faucet Filters. A “Faucet Filter” means a point-of-use faucet-mounted filter certified by the National Sanitation Foundation to remove lead up to 150 ppb, such as the Brita faucet filter, model SAFF-100, or a PUR Faucet Mount, model number FM-3700B.
b. Inspection i. The Third-Party Provider will inspect the household’s kitchen faucet
to determine whether a Faucet Filter has been installed. ii. If a Faucet Filter has been installed on a kitchen faucet, the Third-
Party Provider will determine whether that filter is properly installed and is operating properly. If the Third-Party Provider determines that the Faucet Filter is properly installed and is operating properly, the Inspection is complete.
iii. If no Faucet Filter has been installed on a kitchen faucet, or if the Third-Party Provider discovers that a Faucet Filter is installed improperly or is not operating properly, the Third-Party Provider will attempt to provide and install, at no cost to the household, a new Faucet Filter and/or appropriate filter cartridge on a kitchen faucet. If the Third-Party Provider installs a Faucet Filter and/or filter cartridge, and determines that the Faucet Filter is properly installed and operating properly, the Inspection is complete.
iv. In the event that the Third-Party Provider is unable to install a new Faucet Filter because the household’s faucet is not working or is not compatible with the Faucet Filters, the Third-Party Provider shall provide the household with a Pitcher Filter. A “Pitcher
- 5 -

Case 2:16-cv-10277-DML-SDD ECF No. 211 filed 05/23/19 PageID.10386 Page 6 of 7
Filter” means a water pitcher filter certified by the National Sanitation Foundation to remove lead up to 150 ppb.
c. Education i. During the Inspection described in Paragraph 10.b, the Third-Party
Provider will train the resident, through demonstration if possible, how to properly install a Faucet Filter and how to properly install a filter cartridge. The Third-Party Provider shall provide manufacturer’s instructions for any Faucet Filter, Pitcher Filter, or filter cartridge provided to the household.
ii. The Third-Party Provider will educate the resident about the following topics relating to filter maintenance: (a) how to maintain the filter assembly; (b) how to identify if the filter cartridge for the installed Faucet Filter needs replacement; (c) how to install the appropriate replacement filter cartridges; (d) how and why to flush the filter following installation of a new filter cartridge; and (e) how to remove, inspect, and clean an aerator.
iii. The Third-Party Provider will educate the resident about the following topics relating to filter use: (a) how to operate the “bypass” valve of the Faucet Filter to switch between filtered and unfiltered water flowing through the filter assembly; (b) that hot water should never be run through the filter unless the “bypass” valve is turned on because hot water can ruin the filter cartridge; (c) to check before running cold water through the filter assembly to ensure that the “bypass” valve is turned off; and (d) to stop using, remove, and replace the Faucet Filter if the “bypass” valve, or any other part of the filter, breaks or begins leaking water.
iv. The Third-Party Provider will also provide the following information to the resident: (a) the locations where replacement filter cartridges are available for pick-up; (b) a set of written instructions, including images, for filter and replacement cartridge
- 6 -

Case 2:16-cv-10277-DML-SDD ECF No. 211 filed 05/23/19 PageID.10387 Page 7 of 7
installation (which shall be an updated version of Exhibit H to the Settlement Agreement); and (c) the telephone number to schedule an appointment for a visit by the Third-Party Provider for filter inspection and education services. These materials shall be available in English and Spanish, and shall be provided in whichever of those languages the residents of that household speak.
v. If, during the provision of the Education elements in Paragraph 10.c.i-iv, a resident refuses any element, the provision of the refused Education element will be deemed complete.
vi. If, during the provision of the Education elements in Paragraph 10.c.i-iv, a resident requests termination of the Visit, the Education requirements of the Initial Visit will be deemed complete.
11. Backlog of New Water Customer Visits. Within 60 days of the date of this Order, the Third-Party Provider shall complete the requirements in Paragraphs 6 through 8 and Paragraph 10 of this Order for new water customers for which the City provided notice between March 18, 2019, and the date of this Order.
s/David M. Lawson DAVID M. LAWSON United States District Judge Date: May 23, 2019
- 7 -

 
 CLOSED,APPEAL,reassigned
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:16−cv−10277−DML−SDD

Concerned Pastors for Social Action et al v. Khouri et al Assigned to: District Judge David M. Lawson Referred to: Magistrate Judge Stephanie Dawkins DavisM Case in other court: U.S. Court of Appeals − Sixth Circuit,
16−02628 Cause: 33:1365 Environmental Matters
Plaintiff

Date Filed: 01/27/2016 Date Terminated: 03/28/2017 Jury Demand: None Nature of Suit: 893 Environmental Matters Jurisdiction: Federal Question

Concerned Pastors for Social Action

represented by Brooke A. Merriweather−Tucker American Civil Liberties Union of Michigan 2966 Woodward Avenue Detroit, MI 48201 313−578−6823 Fax: 313−578−6811 Email: btucker@aclumich.org TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED

David J. Shea Shea Law Firm PLLC 26100 American Dr. 2nd Floor Southfield, MI 48034 248−354−0224 Email: david.shea@sadplaw.com TERMINATED: 05/02/2016 ATTORNEY TO BE NOTICED

Jared E. Knicley Natural Resources Defense Council 1152 15th Street NW Suite 300 Washington, DC 20005 202−513−6242 Fax: 202−289−1060 Email: jknicley@nrdc.org ATTORNEY TO BE NOTICED

Michael J. Steinberg 3145 Jeffries Hall 701 South State Street Ann Arbor, MI 48109 (734) 615−2407 Email: mjsteinb@umich.edu TERMINATED: 09/12/2019 ATTORNEY TO BE NOTICED

Michael Edwin Wall Natural Resources Defense Council 111 Sutter Street 21st Floor San Francisco, CA 94104 415−875−6100 Fax: 415−795−4799 Email: mwall@nrdc.org ATTORNEY TO BE NOTICED

Plaintiff Melissa Mays
Plaintiff American Civil Liberties Union of Michigan

Sarah C. Tallman Natural Resources Defense Council 20 North Wacker Drive Suite 1600 Chicago, IL 60606 312−651−7918 Fax: 312−332−1908 Email: stallman@nrdc.org ATTORNEY TO BE NOTICED
Dimple Chaudhary Natural Resources Defense Council 1152 15th Street NW Suite 300 Washington, DC 20005 202−289−2385 Email: dchaudhary@nrdc.org ATTORNEY TO BE NOTICED
represented by Brooke A. Merriweather−Tucker (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED
David J. Shea (See above for address) TERMINATED: 05/02/2016 ATTORNEY TO BE NOTICED
Glenn M. Simmington Law office of Glenn M. Simmington 503 S. Saginaw Street Suite 1000 Flint, MI 48502−1822 810−600−4211 Fax: 810−232−1079 Email: gsimmington@gmail.com ATTORNEY TO BE NOTICED
Jared E. Knicley (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/12/2019 ATTORNEY TO BE NOTICED
Michael Edwin Wall (See above for address) ATTORNEY TO BE NOTICED
Sarah C. Tallman (See above for address) ATTORNEY TO BE NOTICED
Dimple Chaudhary (See above for address) ATTORNEY TO BE NOTICED
represented by Bonsitu A. Kitaba American Civil Liberties Union of

Plaintiff Natural Resources Defense Council, Inc.
V. Defendant Nick A. Khouri in his official capacity as Secretary of Treasury of the State of Michigan

Michigan 2966 Woodward Ave Detroit, MI 48201 313−578−6823 Email: Bkitaba@aclumich.org ATTORNEY TO BE NOTICED
Brooke A. Merriweather−Tucker (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED
David J. Shea (See above for address) TERMINATED: 05/02/2016 ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/12/2019 ATTORNEY TO BE NOTICED
represented by Brooke A. Merriweather−Tucker (See above for address) TERMINATED: 06/08/2016 ATTORNEY TO BE NOTICED
David J. Shea (See above for address) TERMINATED: 05/02/2016 ATTORNEY TO BE NOTICED
Jared E. Knicley (See above for address) ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 09/12/2019 ATTORNEY TO BE NOTICED
Michael Edwin Wall (See above for address) ATTORNEY TO BE NOTICED
Sarah C. Tallman (See above for address) ATTORNEY TO BE NOTICED
Dimple Chaudhary (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua O. Booth State of Michigan Department of Attorney General P.O. Box 30754 Lansing, MI 48909 517−373−1162

Defendant Frederick Headen in his official capacity as Chairperson of the Flint Receivership Advisory Board
Defendant Michael A. Townsend in his official capacity as Member of the Flint Receivership Transition Advisory Board

Fax: 517−373−2060 Email: BoothJ2@Michigan.gov ATTORNEY TO BE NOTICED
Michael F. Murphy MI Dept of Attorney General MDOC Division P.O. Box 30217 Lansing, MI 48909 517−335−3055 Fax: 517−7157 Email: AG−Complex@michigan.gov ATTORNEY TO BE NOTICED
Nathan A. Gambill Michigan Department of Attorney General ENRA Division P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−335−7636 Email: GambillN@michigan.gov ATTORNEY TO BE NOTICED
Richard S. Kuhl Assistant Attorney General Environment, Natural Resources, and Agriculture Division 525 West Ottawa Street P.O. Box 30755 Lansing, MI 48909 517−335−7664 Fax: 517−241−3473 Email: kuhlr@michigan.gov ATTORNEY TO BE NOTICED
represented by Joshua O. Booth (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua O. Booth (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address)

Defendant David McGhee in his official capacity as Member of the Flint Receivership Transition Advisory Board TERMINATED: 03/27/2017
Defendant Michael A. Finney in his official capacity as Member of the Flint Receivership Transition Advisory Board
Defendant Beverly Walker−Griffea in her official capacity as Member of the Flint Receivership Transition Advisory Board TERMINATED: 03/27/2017
Defendant Natasha Henderson in her official capacity as City Administrator TERMINATED: 03/27/2017

ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua O. Booth (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua O. Booth (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua O. Booth (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED
Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
represented by Sheldon H. Klein Butzel Long 41000 Woodward Avenue Stoneridge West

Defendant Flint, City of
Defendant Joel Ferguson in his official capacity as Member of the Flint Receivership Transition Advisory Board

Bloomfield Hills, MI 48304 248−258−1414 Fax: 248−258−1439 Email: klein@butzel.com ATTORNEY TO BE NOTICED
William Young Kim City of Flint 1101 S. Saginaw Street Third Floor Flint, MI 48502 810−766−7146 Fax: 810−232−2114 Email: wkim@cityofflint.com ATTORNEY TO BE NOTICED
represented by Angela N. Wheeler City of Flint Law Dept. 1101 S. Saginaw St. Flint, MI 48502 810−766−7146 Email: awheeler@cityofflint.com ATTORNEY TO BE NOTICED
Frederick A. Berg Butzel Long 150 West Jefferson, Suite 100 Detroit, MI 48226 313−225−7000 Fax: 313−225−7080 Email: bergf@butzel.com ATTORNEY TO BE NOTICED
Sheldon H. Klein (See above for address) ATTORNEY TO BE NOTICED
Stacy L.E. Oakes Oakes Law Group, PLLC 2811 E. Genesee Saginaw, MI 48601 18888865711 Fax: 18888865711 Email: stacy@oakeslawgroup.com TERMINATED: 09/27/2018 ATTORNEY TO BE NOTICED
William Young Kim (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua O. Booth (See above for address) ATTORNEY TO BE NOTICED
Michael F. Murphy (See above for address) ATTORNEY TO BE NOTICED
Nathan A. Gambill (See above for address) ATTORNEY TO BE NOTICED

Defendant Sylvester Jones in his official capacity as City Administrator
Defendant R. Steven Branch
Amicus Attorney General Bill Schuette on Behalf of the People of the State of Michigan

Richard S. Kuhl (See above for address) ATTORNEY TO BE NOTICED
represented by Sheldon H. Klein (See above for address) ATTORNEY TO BE NOTICED
William Young Kim (See above for address) ATTORNEY TO BE NOTICED
represented by William Young Kim (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/27/2016
01/27/2016 01/27/2016 01/27/2016 01/27/2016
01/27/2016 01/27/2016 01/28/2016 01/28/2016

# Docket Text
1 COMPLAINT filed by American Civil Liberties Union of Michigan, Melissa Mays, Concerned Pastors for Social Action, Natural Resources Defense Council, Inc. against All Defendants. Plaintiff requests summons issued. Receipt No: 0645−5524333 − Fee: $ 400. County of 1st Plaintiff: Genesee − County Where Action Arose: Genesee − [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Exhibit A − November 16, 2015 Notice Letter) (Chaudhary, Dimple) (Entered: 01/27/2016)
2 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Concerned Pastors for Social Action (Chaudhary, Dimple) (Entered: 01/27/2016)
3 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Natural Resources Defense Council, Inc. (Chaudhary, Dimple) (Entered: 01/27/2016)
4 SUMMONS Issued for *Michael A. Finney, Flint, City of, Frederick Headen, Natasha Henderson, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea* (DAll) (Entered: 01/27/2016)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (DAll) (Entered: 01/27/2016)
5 NOTICE of Appearance by Michael J. Steinberg on behalf of All Plaintiffs. (Steinberg, Michael) (Entered: 01/27/2016)
6 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by All Plaintiffs (Steinberg, Michael) (Entered: 01/27/2016)
7 NOTICE of Appearance by Sarah C. Tallman on behalf of Concerned Pastors for Social Action, Melissa Mays, Natural Resources Defense Council, Inc.. (Tallman, Sarah) (Entered: 01/28/2016)
8 NOTICE of Appearance by Brooke A. Merriweather−Tucker on behalf of All Plaintiffs. (Merriweather−Tucker, Brooke) (Entered: 01/28/2016)

01/29/2016 02/09/2016
02/11/2016 02/17/2016 02/17/2016 02/18/2016 02/18/2016 02/18/2016 02/22/2016
02/26/2016 02/26/2016 02/29/2016 03/07/2016 03/07/2016 03/18/2016 03/18/2016

9 ATTORNEY APPEARANCE: Glenn M. Simmington appearing on behalf of Melissa Mays (Simmington, Glenn) (Entered: 01/29/2016)
10 CERTIFICATE of Service/Summons Returned Executed. All Defendants. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Summons for Nick A. Khouri and U.S. Certified Mail Receipt, # 3 Exhibit B − Summons for Frederick Headen and U.S. Certified Mail Receipt, # 4 Exhibit C − Summons for Michael A. Townsend and U.S. Certified Mail Receipt, # 5 Exhibit D − Summons for David McGhee and U.S. Certified Mail Receipt, # 6 Exhibit E − Summons for Michael A. Finney and U.S. Certified Mail Receipt, # 7 Exhibit F − Summons for Beverly Walker−Griffea and U.S. Certified Mail Receipt, # 8 Exhibit G − Summons for Natasha Henderson and U.S. Certified Mail Receipt, # 9 Exhibit H − Summons for City of Flint and U.S. Certified Mail Receipt) (Tallman, Sarah) (Entered: 02/09/2016)
11 NOTICE of Appearance by Michael F. Murphy on behalf of Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Murphy, Michael) (Entered: 02/11/2016)
12 MOTION for Extension of Time to File Answer by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Murphy, Michael) (Entered: 02/17/2016)
13 RESPONSE to 12 MOTION for Extension of Time to File Answer filed by All Plaintiffs. (Chaudhary, Dimple) (Entered: 02/17/2016)
14 NOTICE of Appearance by Joshua O. Booth on behalf of Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Booth, Joshua) (Entered: 02/18/2016)
15 REPLY to Response re 12 MOTION for Extension of Time to File Answer filed by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Murphy, Michael) (Entered: 02/18/2016)
16 NOTICE by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea (Murphy, Michael)[NOTICE OF SCREENING DEVICE] Modified on 2/18/2016 (DPer). (Entered: 02/18/2016)
17 ORDER Granting State Defenadnts' Motion for an Extension of time to File Responsive Peadings (Dkt. 12 ) Michael A. Finney answer due 3/7/2016; Frederick Headen answer due 3/7/2016; Nick A. Khouri answer due 3/7/2016; David McGhee answer due 3/7/2016; Michael A. Townsend answer due 3/7/2016; Beverly Walker−Griffea answer due 3/7/2016. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 02/22/2016)
19 ORDER Striking Document (Dkt. 18 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 02/26/2016)
20 MOTION for Extension of Time to File Answer by Flint, City of, Natasha Henderson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Grisi Affidavit, # 3 Exhibit B: Kammer Affidavit) (Kim, William) (Entered: 02/26/2016)
21 ORDER Granting City Defendants' Motion for an Extension of Time to File Responsive Pleadings (Dkt. 20 ). Responsive Pleadings due by 3/7/2016. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 02/29/2016)
22 MOTION to Dismiss Pre−Answer by Flint, City of, Natasha Henderson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Kim, William) (Entered: 03/07/2016)
23 MOTION to Dismiss by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4) (Murphy, Michael) (Entered: 03/07/2016)
24 NOTICE TO APPEAR: Status Conference set for 4/6/2016 at 10:00 AM before District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 03/18/2016)
25 Ex Parte MOTION for Leave to File Excess Pages by All Plaintiffs. (Chaudhary, Dimple) (Entered: 03/18/2016)

03/21/2016 03/23/2016 03/24/2016
03/24/2016
03/28/2016 03/29/2016 03/29/2016 03/31/2016 03/31/2016 04/01/2016 04/06/2016 04/06/2016 04/06/2016

TEXT−ONLY ORDER: Upon review, the Court grants Plaintiffs' ex parte motion for leave to file excess pages (Dkt. 25 ). SO ORDERED.. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 03/21/2016)
26 Ex Parte MOTION for Leave to File Exhibit in the Traditional Manner by All Plaintiffs. (Tallman, Sarah) (Entered: 03/23/2016)
27 MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Declaration of Tracy Collins, # 3 Exhibit B − Declaration of Desiree Duell, # 4 Exhibit C − Declaration of Lizzie Fordham, # 5 Exhibit D − Declaration of Daniel E. Giammar, # 6 Exhibit E − Declaration of Pastor Alfred L. Harris, Sr., # 7 Exhibit F − Declaration of Amber Hasan, # 8 Exhibit G − Declaration of Charlotte Lancaster, # 9 Exhibit H − Declaration of Bruce L. Lanphear, # 10 Exhibit I − Declaration of Melissa Mays, # 11 Exhibit J − Declaration of Dorothy McClanahan, # 12 Exhibit K − Declaration of Kary L. Moss, # 13 Exhibit L − Declaration of Billy Newsom, # 14 Exhibit M − Declaration of Pastor Allen C. Overton, # 15 Exhibit N − Declaration of Maryum Rasool, # 16 Exhibit O − Declaration of Cynthia J. Roper, # 17 Exhibit P − Declaration of Gina Trujillo, # 18 Exhibit Q − Declaration of Ashley Williams, # 19 Exhibit R − Declaration of Dimple Chaudhary) (Chaudhary, Dimple) (Entered: 03/24/2016)
28 EXHIBIT S − Plaintiffs' Appendix (pp. i−58) re 27 MOTION for Preliminary Injunction by All Plaintiffs (Attachments: # 1 Document Continuation Plaintiffs' Appendix pp. 59−90, # 2 Document Continuation Plaintiffs' Appendix pp. 91−145, # 3 Document Continuation Plaintiffs' Appendix pp. 146−251, # 4 Document Continuation Plaintiffs' Appendix pp. 252−364, # 5 Document Continuation Plaintiffs' Appendix pp. 365−413, # 6 Document Continuation Plaintiffs' Appendix pp. 414−588, # 7 Document Continuation Plaintiffs' Appendix pp. 589−655) (Chaudhary, Dimple) (Entered: 03/24/2016)
TEXT−ONLY ORDER: Upon review, the Court grants Plaintiffs' motion for leave to file an exhibit in the traditional manner (Dkt. 26 ). SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 03/28/2016)
29 NOTICE by All Plaintiffs re 27 MOTION for Preliminary Injunction (Notice of Filing Exhibit in the Traditional Manner) (Tallman, Sarah) (Entered: 03/29/2016)
30 EXHIBIT R re 27 MOTION for Preliminary Injunction by American Civil Liberties Union of Michigan [FILED IN THE TRADITIONAL MANNER − Placed on shelf] (SSch) (Entered: 03/30/2016)
31 RESPONSE to 22 MOTION to Dismiss Pre−Answer filed by All Plaintiffs. (Attachments: # 1 Declaration of Jared Knicley) (Chaudhary, Dimple) (Entered: 03/31/2016)
32 RESPONSE to 23 MOTION to Dismiss filed by All Plaintiffs. (Attachments: # 1 Declaration of Sarah C. Tallman) (Chaudhary, Dimple) (Entered: 03/31/2016)
33 DECLARATION by Sarah C. Tallman re 32 Response to Motion (Amended Declaration) filed by All Plaintiffs (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Letter from Susan Hedman to Dimple Chaudhary (Dec. 10, 2015), # 3 Exhibit 2 − Letter from Mark Pollins to Keith Creagh et al. (Feb. 19, 2016)) (Chaudhary, Dimple) (Entered: 04/01/2016)
Minute Entry for proceedings before District Judge Mark A. Goldsmith: Status Conference held on 4/6/2016. (Court Reporter: David Yarbrough) (Sandusky, K) (Entered: 04/06/2016)
34 NOTICE OF HEARING on 23 MOTION to Dismiss , 22 MOTION to Dismiss Pre−Answer, 27 MOTION for Preliminary Injunction . Motion Hearing set for 5/11/2016 at 09:30 AM before District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 04/06/2016)
TEXT−ONLY ORDER: As stated on the record during the status conference held on April 6, 2016, any objections to the Court's continued participation in this matter shall be filed on or before April 15, 2016. SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 04/06/2016)

04/12/2016 04/13/2016 04/13/2016 04/14/2016 04/14/2016 04/14/2016
04/14/2016
04/14/2016 04/14/2016
04/15/2016 04/20/2016 04/26/2016 04/27/2016
04/28/2016 05/02/2016 05/02/2016 05/02/2016

35 [STRICKEN PER 05/02/16 ORDER] NOTICE by All Plaintiffs Notice of Motion to Consolidate (Attachments: # 1 Exhibit) (Shea, David) Modified on 5/2/2016 (DPer). (Entered: 04/12/2016)
36 NOTICE of Appearance by Frederick A. Berg on behalf of Flint, City of. (Berg, Frederick) (Entered: 04/13/2016)
37 NOTICE of Appearance by Sheldon H. Klein on behalf of Flint, City of. (Klein, Sheldon) (Entered: 04/13/2016)
38 Ex Parte MOTION for Leave to File Excess Pages by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Murphy, Michael) (Entered: 04/14/2016)
TEXT−ONLY ORDER: Upon review, the Court grants Defendants' motion for leave to file excess pages (Dkt. 38 ). SO ORDERED. Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Entered: 04/14/2016)
39 REPLY to Response re 23 MOTION to Dismiss filed by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Exhibit 1) (Murphy, Michael) (Entered: 04/14/2016)
40 RESPONSE to 27 MOTION for Preliminary Injunction filed by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C) (Murphy, Michael) (Entered: 04/14/2016)
41 REPLY to Response re 22 MOTION to Dismiss Pre−Answer filed by Flint, City of, Natasha Henderson. (Kim, William) (Entered: 04/14/2016)
42 RESPONSE to 27 MOTION for Preliminary Injunction filed by Flint, City of. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T) (Klein, Sheldon) (Entered: 04/14/2016)
43 NOTICE by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea Objections (Murphy, Michael) (Entered: 04/15/2016)
44 NOTICE by All Plaintiffs re Text−Only Order, 43 Notice (Other) (Response to State Defendants' Objections to Continuation of Case with Hon. Mark A. Goldsmith) (Chaudhary, Dimple) (Entered: 04/20/2016)
45 ORDER of DISQUALIFICATION and REASSIGNING CASE from District Judge Mark A. Goldsmith to District Judge David M. Lawson. (SSch) (Entered: 04/26/2016)
46 MOTION for Extension of Time to File Response/Reply as to 27 MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Morris v. Berghuis, # 3 Exhibit 2 − Hydropartners, LLC v. Econergy Energy Generation Ltd., # 4 Exhibit 3 − Henry v. Allstate Prop. & Cas. Co., # 5 Exhibit 4 − Declaration of Dimple Chaudhary) (Chaudhary, Dimple) (Entered: 04/27/2016)
47 ORDER Granting 46 Motion for Extension of Time to File Reply. Signed by District Judge David M. Lawson. (SPin) (Entered: 04/29/2016)
TEXT−ONLY NOTICE: Preliminary Injunction Hearing on 5/11/2016 is Cancelled; Motions to Dismiss will be heard 5/11/2016 at 11:00 AM before Judge David M. Lawson in Room 716. (SPin) (Entered: 05/02/2016)
48 NOTICE OF HEARING on 23 MOTION to Dismiss and 22 MOTION to Dismiss Pre−Answer. Motion Hearing reset for 5/11/2016 at 11:00 AM before District Judge David M. Lawson. (SPin) (Entered: 05/02/2016)
49 ORDER striking 35 Notice of motion to consolidate. Signed by District Judge David M. Lawson. (DPer) (Entered: 05/02/2016)

05/02/2016 05/02/2016 05/03/2016 05/04/2016 05/04/2016 05/06/2016 05/11/2016 05/11/2016
05/13/2016
05/13/2016 05/20/2016 05/25/2016
05/26/2016

50 NOTICE of Appearance by Nathan A. Gambill on behalf of Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Gambill, Nathan) (Entered: 05/02/2016)
51 MOTION to Adjourn 48 Notice of Hearing on Motion to Dismiss by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Chubb Custom Ins. Co. v. Grange Mut. Cas. Co.) (Tallman, Sarah) (Entered: 05/02/2016)
52 MOTION for Continuance of Deadline to File Reply in Support of Motion for a Preliminary Injunction re 27 MOTION for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Morris v. Berghuis, # 3 Exhibit 2 − Psychopathic Records Inc. v. Anderson, # 4 Exhibit 3 − Hydropartners, LLC v. Econergy Energy Generation Ltd.) (Chaudhary, Dimple) (Entered: 05/03/2016)
Set/Reset Hearing as to 23 MOTION to Dismiss and 22 MOTION to Dismiss Pre−Answer. Motion Hearing reset for 5/13/2016 at 8:30 AM before District Judge David M. Lawson. (SPin) (Entered: 05/04/2016)
53 ORDER Denying in Part 51 Motion to Adjourn Hearing on Motions to Dismiss, Rescheduling Hearing Date on Motions to Dismiss, and Granting 52 Motion to Enlarge Time to Reply to Defendants' Response to Motion for Preliminary Injunction. Signed by District Judge David M. Lawson. (SPin) (Entered: 05/04/2016)
54 NOTICE of Appearance by Jared E. Knicley on behalf of Concerned Pastors for Social Action, Melissa Mays, Natural Resources Defense Council, Inc.. (Knicley, Jared) (Entered: 05/06/2016)
55 NOTICE TO APPEAR: Status Conference set for 5/13/2016 at 9:30 AM before District Judge David M. Lawson. (SPin) (Entered: 05/11/2016)
56 NOTICE by All Plaintiffs of Motions to Consolidate and Motion to Stay Dispositive Motion Practice in All Cases Filed in Mays v. Snyder (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Joint Mot. & Br. in Supp. of Mot. to Consolidate Actions, # 3 Exhibit 2 − Mot. for Consolidation Pursuant to Rule 42, # 4 Exhibit 3 − Concerned Pastors Pls.' Nonparty Resp. to Joint Mot. to Consolidate Actions & Mot. for Consolidation Pursuant to Rule 42, # 5 Exhibit 4 − Non−party Pl. Group's Joint Reply in Supp. of Joint Mot. to Consolidate Actions, # 6 Exhibit 5 − Joint Mot. & Br. in Supp. of Mot. to Stay Dispositive Mot. Practice in All Cases, # 7 Exhibit 6 − Concerned Pastors Pls.' Nonparty Resp. to Joint Mot. to Stay Dispositive Mot. Practice in All Cases, # 8 Exhibit 7 − Gov. Snyder & State of Mich.'s Notice of Suppl. Authority) (Tallman, Sarah) (Entered: 05/11/2016)
Minute Entry for proceedings before District Judge David M. Lawson: Motion Hearing held on 5/13/2016 re 23 MOTION to Dismiss filed by Beverly Walker−Griffea, Frederick Headen, Michael A. Finney, David McGhee, Michael A. Townsend, Nick A. Khouri, and 22 MOTION to Dismiss Pre−Answer filed by City of Flint, Natasha Henderson. Disposition: Motion taken under advisement. (Court Reporter: Rene Twedt) (SPin) (Entered: 05/13/2016)
Minute Entry for proceedings before District Judge David M. Lawson: Status Conference held on 5/13/2016. (SPin) (Entered: 05/13/2016)
57 NOTICE of Joinder/Concurrence in 42 Response to Motion,, filed by Flint, City of by Flint, City of, Natasha Henderson (Kim, William) (Entered: 05/20/2016)
58 TRANSCRIPT of Motion Hearing held on 05/13/2016. (Court Reporter/Transcriber: Rene L Twedt) (Number of Pages: 44) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 6/15/2016. Redacted Transcript Deadline set for 6/27/2016. Release of Transcript Restriction set for 8/23/2016. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Twedt, R) (Entered: 05/25/2016)
59 NOTICE of Appearance by Stacy Erwin Oakes on behalf of Flint, City of. (Erwin Oakes, Stacy) (Entered: 05/26/2016)

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60 ORDER Allowing Preliminary Discovery. Signed by District Judge David M. Lawson. (SPin) (Entered: 05/31/2016)
61 STIPULATION AND ORDER permitting the withdrawal of Attorney Brooke A. Merriweather−Tucker as counsel for plaintiffs. Signed by District Judge David M. Lawson. (DPer) (Entered: 06/09/2016)
62 OPINION AND ORDER Denying Defendants' 22 and 23 MOTIONS to Dismiss. (Status Conference set for 8/3/2016 at 3:00 PM before District Judge David M. Lawson.) Signed by District Judge David M. Lawson. (HMon) (Entered: 07/07/2016)
63 Ex Parte MOTION for Leave to File Excess Pages by All Plaintiffs. (Knicley, Jared) (Entered: 07/13/2016)
64 ORDER Granting 63 Motion for Leave to File Excess Pages. Signed by District Judge David M. Lawson. (SPin) (Entered: 07/14/2016)
65 ANSWER to Complaint with Affirmative Defenses by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Murphy, Michael) (Entered: 07/21/2016)
66 STIPULATION For Entry of Order Regarding Extension of Deadline for City of Flint Defendants to Answer Complaint by Flint, City of, Natasha Henderson (Klein, Sheldon) (Entered: 07/21/2016)
67 ORDER Extending Time to Answer or Respond to Complaint. Answer or Response due by 7/28/2016. Signed by District Judge David M. Lawson. (SPin) (Entered: 07/21/2016)
68 REPLY to Response re 27 MOTION for Preliminary Injunction filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Declaration of Mary Brady−Enerson, # 3 Exhibit B − Declaration of Loretta Burns, # 4 Exhibit C − Declaration of Jacqueline Childress, # 5 Exhibit D − Declaration of Jerry Gains, # 6 Exhibit E − Declaration of Darnell Ishmel, # 7 Exhibit F − Declaration of Jennifer Lee, # 8 Exhibit G − Declaration of Art Reyes III, # 9 Exhibit H − Supplemental Declaration of Daniel E. Giammar, # 10 Exhibit I − Supplemental Declaration of Charlotte Lancaster, # 11 Exhibit J − Deposition Transcript of Rodney S. Branch (excerpts), # 12 Exhibit K − Deposition Transcript of Chris A. Kelenske (excerpts), # 13 Exhibit L − Deposition Transcript of JoLisa McDay (excerpts), # 14 Exhibit M − Deposition Transcript of Dawn Steele (excerpts), # 15 Exhibit N − Supplemental Declaration of Dimple Chaudhary, # 16 Exhibit O − Plaintiffs' Appendix (continued) (656−750), # 17 Document Continuation O − Plaintiffs' Appendix (continued) (751−819), # 18 Document Continuation O − Plaintiffs' Appendix (continued) (820−890)) (Chaudhary, Dimple) (Exhibit H replaced on 7/27/2016: Page headers were missing) (JPur). (Entered: 07/22/2016)
69 ANSWER to Complaint with Affirmative Defenses by Flint, City of, Natasha Henderson. (Klein, Sheldon) (Entered: 07/28/2016)
70 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Flint, City of (Klein, Sheldon) (Entered: 07/29/2016)
71 NOTICE of Appearance by Richard S. Kuhl on behalf of Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Kuhl, Richard) (Entered: 08/03/2016)
72 AMENDED 71 Notice of Appearance by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea (Kuhl, Richard) (Entered: 08/03/2016)
Minute Entry for proceedings before District Judge David M. Lawson: Status Conference held on 8/3/2016. (SPin) (Entered: 08/04/2016)
73 ORDER FOR HEARING ON PLAINTIFFS' PRELIMINARY INJUNCTION MOTION. Affidavits and Transcripts due by 8/29/2016; Motion Hearing set for 9/14/2016 at 8:00 AM and 9/15/2016 at 8:00 AM before District Judge David M. Lawson. Signed by District Judge David M. Lawson. (SPin) (Entered: 08/18/2016)

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74 MOTION in Limine to Exclude or Limit the Testimony of Bryce Feighner by All Plaintiffs. (Attachments: # 1 Declaration of Sarah C. Tallman) (Chaudhary, Dimple) (Entered: 08/26/2016)
75 MOTION to Expedite Briefing on Plaintiffs' Motion in Limine by All Plaintiffs. (Chaudhary, Dimple) (Entered: 08/26/2016)
76 ORDER Granting in Part Plaintiffs' 75 Motion for Expedited Briefing on Plaintiff's Motion in Limine. Signed by District Judge David M. Lawson. (SPin) (Entered: 08/29/2016)
77 RESPONSE to 74 MOTION in Limine to Exclude or Limit the Testimony of Bryce Feighner filed by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Exhibit State Defs' Ex 1) (Murphy, Michael) (Entered: 09/06/2016)
78 NOTICE of Appearance by Michael Edwin Wall on behalf of Concerned Pastors for Social Action, Melissa Mays, Natural Resources Defense Council, Inc.. (Wall, Michael) (Entered: 09/07/2016)
79 MOTION for Court site view by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Murphy, Michael) (Entered: 09/07/2016)
80 MOTION in Limine Carravallah Declaration by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Murphy, Michael) (Entered: 09/07/2016)
81 RESPONSE to 27 MOTION for Preliminary Injunction [Amended] filed by Flint, City of. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Declaration of Steven Branch, # 3 Exhibit B: Mlive Article titled "Changes Coming to Flint Water Distribution", # 4 Exhibit C: H2O Flint Website, # 5 Exhibit D: United Way Flint Water Fund Website, # 6 Exhibit E: H2O Flint Request a Home Delivery Website, # 7 Exhibit F: Detroit Free Press Article titled "Groups seek home−delivered water to all Flint homes amid lead crisis", # 8 Exhibit G: Mlive Article titled "ID not required for residents to get free resources during Flint water crisis", # 9 Exhibit H: City of Flint State of Emergency Website, # 10 Exhibit I: PUR Filters Website titled "Resources and News for Flint Residents", # 11 Exhibit J: Flint PUR Filter Fact Sheet and Taking Action on Flint Water Website Providing Information About Water Filters, # 12 Exhibit K: Plumbers Local 370 Kitchen Faucets Help Request and Taking Action on Flint Water Website Providing Information on Help and Support Services, # 13 Exhibit L: City Instructions to Residents, # 14 Exhibit M: Declaration of Michael Glasgow, # 15 Exhibit N: Help for Flint Website, # 16 Exhibit O: Declaration of Jody Lundquist, # 17 Exhibit P: First Am. Title Co. v. DeVaugh (unpublished decision), # 18 Exhibit Q: Lyda v. City of Detroit (In re City of Detroit)(unpublished decision), # 19 Exhibit R: Lowe v. Vadlamudi (unpublished decision), # 20 Exhibit S: United States v. City of N. Adams (unpublished decision), # 21 Exhibit T: 3000 E. Imperial, LLC v. Robertshaw Controls Co.(unpublished decision), # 22 Exhibit U: Comparison of Defendant City of Flints Original and Amended Responses to Plaintiffs Motion for a Preliminary Injunction) (Klein, Sheldon) (Entered: 09/08/2016)
82 NOTICE OF HEARING on 80 MOTION in Limine re Carravallah Declaration and 79 MOTION for Court site view. Motion Hearing set for 9/14/2016 at 8:00 AM before District Judge David M. Lawson. (SPin) (Entered: 09/09/2016)
83 RESPONSE to 79 MOTION for Court site view filed by All Plaintiffs. (Knicley, Jared) (Entered: 09/12/2016)
84 RESPONSE to 80 MOTION in Limine Carravallah Declaration filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Decl. of Laura Carravallah, M.D., # 3 Exhibit B − Suppl. Decl. of Laura Carravallah, M.D., # 4 Exhibit C − Decl. of Jared Knicley) (Knicley, Jared) (Attachment 2 replaced − Page headers were missing) Modified on 9/16/2016 (ATee). (Entered: 09/12/2016)
Minute Entry for proceedings before District Judge David M. Lawson: Motion Hearing held on 9/14/2016 re 74 MOTION in Limine to Exclude or Limit the Testimony of Bryce Feighner, 80 MOTION in Limine, and 79 MOTION for Court site view. Disposition: Motions denied. (Court Reporter: Rene Twedt) (SPin) (Entered:

09/14/2016
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09/15/2016)
Minute Entry for proceedings before District Judge David M. Lawson: Motion Hearing held on 9/14/2016 re 27 MOTION for Preliminary Injunction filed by Natural Resources Defense Council, Inc., Melissa Mays, American Civil Liberties Union of Michigan, and Concerned Pastors for Social Action. Disposition: Motion taken under advisement. (Court Reporter: Rene Twedt) (SPin) (Entered: 09/15/2016)
85 ORDER Denying Plaintiffs' 74 Motion in Limine, Denying the State Defendants' 79 Motion for a Site View, and Denying the State Defendants' 80 Motion in Limine. Signed by District Judge David M. Lawson. (SPin) (Entered: 09/15/2016)
86 TRANSCRIPT of Motion for Preliminary Injunction held on 09/14/2016. (Court Reporter/Transcriber: Rene L Twedt) (Number of Pages: 369) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 10/11/2016. Redacted Transcript Deadline set for 10/21/2016. Release of Transcript Restriction set for 12/19/2016. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Twedt, R) (Entered: 09/20/2016)
87 SUPPLEMENTAL BRIEF re 27 MOTION for Preliminary Injunction City Defendants' Post Hearing Brief filed by Flint, City of. (Klein, Sheldon) (Entered: 09/22/2016)
88 SUPPLEMENTAL BRIEF re 27 MOTION for Preliminary Injunction , 40 Response to Motion, Closing Brief filed by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Murphy, Michael) (Entered: 09/22/2016)
89 SUPPLEMENTAL BRIEF re 27 MOTION for Preliminary Injunction Plaintiffs' Post−Hearing Brief in Support of Motion for a Preliminary Injunction filed by All Plaintiffs. (Attachments: # 1 Exhibit Exhibit A − Proposed Order) (Chaudhary, Dimple)[EXHIBIT A STRICKE PER 09/23/16 ORDER] Modified on 9/23/2016 (DPer). (Entered: 09/22/2016)
90 ORDER striking attachment to 89 Supplemental brief. Signed by District Judge David M. Lawson. (DPer) (Entered: 09/23/2016)
91 MOTION to Redact Hearing Transcript by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Alyn v. S. Land Co., # 3 Exhibit B − United States v. Boyd, # 4 Exhibit C − Sykes v. Anderson) (Tallman, Sarah) (Entered: 10/11/2016)
92 ORDER Requiring the State Defendants to File a Response to Plaintiffs' 91 Motion to Redact Hearing Transcript. Response due by noon on 10/19/2016. Signed by District Judge David M. Lawson. (SPin) (Entered: 10/14/2016)
93 RESPONSE to 91 MOTION to Redact Hearing Transcript filed by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit) (Murphy, Michael) (Entered: 10/19/2016)
94 ORDER Granting 91 Motion to Redact Hearing Transcript. Signed by District Judge David M. Lawson. (SPin) (Entered: 10/25/2016)
95 Redacted Version of 86 TRANSCRIPT of Motion for Preliminary Injunction held on 09/14/2016. Release of Transcript Restriction set for 12/19/2016. (Twedt, R) (Entered: 10/28/2016)
96 OPINION AND ORDER Granting Plaintiffs' 27 Motion for Preliminary Injunction. Signed by District Judge David M. Lawson. (SPin) (Entered: 11/10/2016)
97 Emergency MOTION to Stay re 96 Order on Motion for Preliminary Injunction by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Declaration of McNeely, # 3 Exhibit Declaration of Kelenske, # 4 Exhibit Declaration

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of Krisztian) (Gambill, Nathan) (Entered: 11/17/2016)
98 ORDER Requiring a Response to 97 Emergency Motion to Stay. Response due by close of business on 11/23/2016. Signed by District Judge David M. Lawson. (SPin) (Entered: 11/17/2016)
99 NOTICE OF APPEAL by Frederick Headen, Michael A. Townsend, Michael A. Finney, David McGhee, Beverly Walker−Griffea, Nick A. Khouri re 96 Order on Motion for Preliminary Injunction. Fee Status: No Fee Paid. (Gambill, Nathan) (Entered: 11/21/2016)
100 Certificate of Service re 99 Notice of Appeal. (LHos) (Entered: 11/21/2016)
101 NOTICE TO APPEAR: Scheduling Conference set for 12/6/2016 at 4:00 PM before District Judge David M. Lawson. (See image for document deadline.) (SPin) (Entered: 11/21/2016)
102 RESPONSE to 97 Emergency MOTION to Stay re 96 Order on Motion for Preliminary Injunction Certificate of Service filed by Flint, City of. (Berg, Frederick) (Entered: 11/23/2016)
103 MOTION TO EXTEND Time to Submit Discovery Statement or Discovery Plan (Unopposed) by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Morris v. Berghuis, # 3 Exhibit B − Henry v. Allstate Prop. & Cas. Co.) (Chaudhary, Dimple) (Entered: 11/23/2016)
104 TEXT−ONLY ORDER Extending Time to to Submit Discovery Statement or Joint Discovery Plan re 103 MOTION TO EXTEND. Discovery Statement or Joint Discovery Plan due by 12/1/2016. Signed by District Judge David M. Lawson. (SPin) (Entered: 11/23/2016)
105 RESPONSE to 97 Emergency MOTION to Stay re 96 Order on Motion for Preliminary Injunction filed by American Civil Liberties Union of Michigan, Concerned Pastors for Social Action, Melissa Mays, Natural Resources Defense Council, Inc.. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Pirgim Pub. Interest Lobby v. Dow Chem. Co., # 3 Exhibit B − Kentuckians for the Commw. v. U.S. Army Corps of Engrs, # 4 Exhibit C − Lyda v. City of Detroit, # 5 Exhibit D − Moss v. Wells Fargo Bank, # 6 Exhibit E − B.E. v. Teeter) (Chaudhary, Dimple) (Entered: 11/23/2016)
106 REPLY to Response re 97 Emergency MOTION to Stay re 96 Order on Motion for Preliminary Injunction filed by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Gambill, Nathan) (Entered: 11/23/2016)
107 RESPONSE to 97 Emergency MOTION to Stay re 96 Order on Motion for Preliminary Injunction AMENDED filed by Flint, City of. (Berg, Frederick) (Entered: 11/29/2016)
108 OPINION AND ORDER Denying 97 Motion to Stay Preliminary Injunction. Signed by District Judge David M. Lawson. (SPin) (Main Document 108 replaced on 12/2/2016) (SPin). (Entered: 12/02/2016)
Appeal Fee received for 99 Notice of Appeal filed by Beverly Walker−Griffea, Frederick Headen, Michael A. Finney, David McGhee, Michael A. Townsend, Nick A. Khouri in the amount of $ 505.00 − Receipt No. DET098666. (Huff, W.) (Entered: 12/05/2016)
Minute Entry for proceedings before District Judge David M. Lawson: Scheduling Conference held on 12/6/2016. (SPin) (Entered: 12/07/2016)
109 SCHEDULING ORDER: Interim Status Conference set for 3/13/2017 at 2:00 PM; Discovery due by 8/18/2017; Dispositive Motion Cut−off set for 9/5/2017; Final Pretrial Conference set for 1/29/2018 at 2:00 PM; Bench Trial set for 2/12/2018 at 8:30 AM before District Judge David M. Lawson. Signed by District Judge David M. Lawson. (Refer to image for additional dates) (SPin) (Entered: 12/07/2016)

12/13/2016
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12/28/2016

110 MOTION to Vacate 96 Order on Motion for Preliminary Injunction, 108 Order on Motion to Stay by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Exhibit Declaration of Bryce Feighner) (Kuhl, Richard)[MOTION TO DISSOLVE PRELIMINARY INJUNCTION OR TO RECONSIDER DENIAL OF STAY PENDING APPEAL] Modified on 12/14/2016 (DPer). (Entered: 12/13/2016)
111 Amended MOTION to Vacate 96 Order on Motion for Preliminary Injunction, 108 Order on Motion to Stay Adding Exhibits to Attachment A by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Exhibit Declaration of Bryce Feighner) (Kuhl, Richard)[MOTION TO DISSOLVE PRELIMINARY INJUNCTION OR TO RECONSIDER DENIAL OF STAY PENDING APPEAL] Modified on 12/14/2016 (DPer). (Entered: 12/14/2016)
112 ORDER from U.S. Court of Appeals − Sixth Circuit re 99 Notice of Appeal filed by Beverly Walker−Griffea, Frederick Headen, Michael A. Finney, David McGhee, Michael A. Townsend, Nick A. Khouri [Appeal Case Number 16−2628] (Ahmed, N) (Entered: 12/16/2016)
113 NOTICE OF HEARING on 110 , 111 MOTION to Vacate. Motion Hearing set for 1/24/2017 at 2:30 PM before District Judge David M. Lawson. (SPin) (Entered: 12/16/2016)
114 State Defendants' Status Report on Compliance with Preliminary Injunction REPORT by Michael A. Finney, Flint, City of, Frederick Headen, Natasha Henderson, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea (Kuhl, Richard) (Entered: 12/16/2016)
115 STATUS REPORT PURSUANT TO NOVEMBER 10, 2016 ORDER (Dkt# 96) by Flint, City of (Attachments: # 1 Exhibit A) (Klein, Sheldon) (Entered: 12/16/2016)
116 Emergency MOTION to Enforce Preliminary Injunction re 96 Order on Motion for Preliminary Injunction by American Civil Liberties Union of Michigan, Concerned Pastors for Social Action, Melissa Mays, Natural Resources Defense Council, Inc.. (Attachments: # 1 Chaudhary Decl.) (Chaudhary, Dimple) (Entered: 12/20/2016)
Minute Entry for proceedings before District Judge David M. Lawson: Telephonic Status Conference held on 12/20/2016. (SPin) (Entered: 12/21/2016)
117 ORDER Requiring Response to Emergency 116 Motion to Enforce Preliminary Injunction. Response due at or before 12:00 p.m. on 12/23/2016. Signed by District Judge David M. Lawson. (SPin) (Entered: 12/21/2016)
118 RESPONSE to 116 Emergency MOTION to Enforce Preliminary Injunction re 96 Order on Motion for Preliminary Injunction filed by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Kuhl, Richard) (Entered: 12/22/2016)
119 RESPONSE to 116 Emergency MOTION to Enforce Preliminary Injunction re 96 Order on Motion for Preliminary Injunction and Certificate of Service filed by Flint, City of, Natasha Henderson. (Klein, Sheldon) (Entered: 12/23/2016)
120 REPLY to Response re 116 Emergency MOTION to Enforce Preliminary Injunction re 96 Order on Motion for Preliminary Injunction filed by All Plaintiffs. (Chaudhary, Dimple) (Entered: 12/23/2016)
121 RESPONSE to 111 Amended MOTION to Vacate 96 Order on Motion for Preliminary Injunction, 108 Order on Motion to Stay Adding Exhibits to Attachment A filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Second Suppl. Decl. of Daniel E. Giammar, # 3 Exhibit B − Suppl. Decl. of Bruce P. Lanphear, # 4 Exhibit C − Decl. of Sarah C. Tallman, # 5 Exhibit D − BioLumix, Inc. v. Centrus Int'l, Inc., # 6 Exhibit E − CGH Transport, Inc. v. Quebecor World, Inc.) (Chaudhary, Dimple) (Entered: 12/27/2016)
122 ORDER Appointing Settlement Master. Signed by District Judge David M. Lawson. (SPin) (Entered: 12/28/2016)

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123 MOTION TO EXTEND Time to Submit Discovery Plan (Unopposed) by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Morris v. Berghuis, # 3 Exhibit B − Henry v. Allstate Prop. & Cas. Co.) (Tallman, Sarah) (Entered: 12/28/2016)
124 MOTION for Leave to Submit Supplemental Evidence in Support of Emergency Motion to Enforce Preliminary Injunction re 116 Emergency MOTION to Enforce Preliminary Injunction re 96 Order on Motion for Preliminary Injunction by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Declaration of Sarah C. Tallman, # 3 Exhibit B − Music Grp. Macao Commercial Offshore Ltd. v. Foote) (Tallman, Sarah) (Entered: 12/29/2016)
125 STIPULATION for Extension of Time to File Reply to Response to Amended Motion to Vacate. (SPin) (Entered: 12/29/2016)
126 ORDER Extending Time to Reply to 110 MOTION to Vacate 96 Order on Motion for Preliminary Injunction. Reply due by 1/6/2017. Signed by District Judge David M. Lawson. (SPin) (Entered: 12/29/2016)
TEXT−ONLY ORDER Granting 123 MOTION TO EXTEND Time to Submit Joint Discovery Plan. Signed by District Judge David M. Lawson. (SPin) (Entered: 01/03/2017)
127 NOTICE of Appearance by Bonsitu A. Kitaba on behalf of American Civil Liberties Union of Michigan. (Kitaba, Bonsitu) (Entered: 01/04/2017)
128 NOTICE OF HEARING on 116 Emergency MOTION to Enforce Preliminary Injunction re 96 Order on Motion for Preliminary Injunction. Motion Hearing set for 1/24/2017 at 2:30 PM before District Judge David M. Lawson. (SPin) (Entered: 01/05/2017)
129 REPLY to Response re 111 Amended MOTION to Vacate 96 Order on Motion for Preliminary Injunction, 108 Order on Motion to Stay Adding Exhibits to Attachment A filed by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A− First Half 2016 Maps, # 3 Exhibit B − Second Half 2016 Maps, # 4 Exhibit C − EPA Emergency Order, # 5 Exhibit D − WQP Status Letter 12−27−2016, # 6 Exhibit E − August 15, 2016 Letter) (Kuhl, Richard) (Entered: 01/06/2017)
130 DISCOVERY plan jointly filed pursuant to Federal Rules of Civil Procedure 26(f) (Chaudhary, Dimple) (Entered: 01/10/2017)
131 RESPONSE to 124 MOTION for Leave to Submit Supplemental Evidence in Support of Emergency Motion to Enforce Preliminary Injunction re 116 Emergency MOTION to Enforce Preliminary Injunction re 96 Order on Motion for Preliminary Injunction filed by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Exhibit Declaration of Kelenske) (Murphy, Michael) (Entered: 01/12/2017)
132 PROTECTIVE ORDER. Signed by District Judge David M. Lawson. (SPin) (Entered: 01/12/2017)
133 ORDER Granting 124 Motion for Leave to Submit Supplemental Evidence in Support of Emergency Motion to Enforce Preliminary Injunction. Signed by District Judge David M. Lawson. (SPin) (Entered: 01/12/2017)
134 MOTION for Leave to File Surreply in Opp'n to State Defs.' Mot. to Dissolve Prelim. Inj. or to Reconsider Denial of Stay Pending Appeal (Unopposed) by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Surreply to State Defs.' Mot. to Dissolve Prelim. Inj., # 3 Exhibit B − First Tech. Capital, Inc. v. Banctec, Inc., # 4 Exhibit C − Engg & Mfg. Servs., LLC v. Ashton) (Chaudhary, Dimple) (Entered: 01/13/2017)
135 ORDER Granting 134 Motion for Leave to File Surreply. Signed by District Judge David M. Lawson. (SPin) (Entered: 01/17/2017)
136 MOTION for Leave to File Amicus Curiae BRIEF by Attorney General Bill Schuette on Behalf of the People of the State of Michigan (Hall, Noah) Modified on 1/20/2017 (SPin). Modified on 1/20/2017 (SPin). (Entered: 01/17/2017)

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01/26/2017 02/14/2017 02/23/2017

137 NOTICE by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea re 136 Amicus Curiae Brief for Withdrawal of Concurrence (Kuhl, Richard) (Entered: 01/18/2017)
138 SUR−REPLY re 111 Amended MOTION to Vacate 96 Order on Motion for Preliminary Injunction, 108 Order on Motion to Stay Adding Exhibits to Attachment A filed by All Plaintiffs. (Attachments: # 1 Exhibit 1 − Shannon v. State Farm Ins.) (Chaudhary, Dimple) (Entered: 01/20/2017)
139 OPINION AND ORDER Denying 136 Motion by Attorney General Bill Schuette to File Amicus Curiae Brief. Signed by District Judge David M. Lawson. (SPin) (Main Document 139 replaced on 1/23/2017) (SPin). (Entered: 01/23/2017)
140 MOTION for Leave to Submit Supplemental Evidence in Support of Emergency Motion to Enforce Preliminary Injunction re 116 Emergency MOTION to Enforce Preliminary Injunction re 96 Order on Motion for Preliminary Injunction (Unopposed) by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Decl. of Elsie Bryant, # 3 Exhibit B − Decl. of Aaron Kottke) (Chaudhary, Dimple) (Entered: 01/23/2017)
141 MOTION for Leave to File Supplemental Evidence in Support of Defendants State Treasurer and RTAB's Motion to Dissolve Preliminary Injunction by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Index of Exhibits Ex. 1 DEQ January 23, 2017 Letter, # 2 Exhibit Ex. 2 DEQ January 23, 2017 Data, # 3 Exhibit Ex. 3 January 23, 2017 EPA mail, # 4 Exhibit Ex. 4 DEQ October 30, 2015 Letter, # 5 Exhibit) (Kuhl, Richard) (Entered: 01/24/2017)
Minute Entry for proceedings before District Judge David M. Lawson: Motion Hearing held on 1/24/2017 re 111 Amended MOTION to Vacate 96 Order on Motion for Preliminary Injunction, 108 Order on Motion to Stay; 116 Emergency MOTION to Enforce Preliminary Injunction re 96 Order on Motion for Preliminary Injunction; and 110 MOTION to Vacate 96 Order on Motion for Preliminary Injunction, 108 Order on Motion to Stay. Disposition: Motions taken under advisement. (Court Reporter: Rene Twedt) (SPin) (Entered: 01/24/2017)
142 ORDER Granting Motions 140 and 141 for Leave to File Supplemental Evidence. Signed by District Judge David M. Lawson. (SPin) (Entered: 01/25/2017)
143 SUPPLEMENTAL BRIEF re 111 Amended MOTION to Vacate 96 Order on Motion for Preliminary Injunction, 108 Order on Motion to Stay Adding Exhibits to Attachment A filed by Michael A. Finney, Frederick Headen, Nick A. Khouri, David McGhee, Michael A. Townsend, Beverly Walker−Griffea. (Attachments: # 1 Exhibit) (Kuhl, Richard) (Entered: 01/25/2017)
144 TRANSCRIPT of Motion Hearing held on 01/24/2017. (Court Reporter/Transcriber: Rene L Twedt) (Number of Pages: 55) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 2/16/2017. Redacted Transcript Deadline set for 2/27/2017. Release of Transcript Restriction set for 4/26/2017. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Twedt, R) Modified on 1/26/2017: Changed number of pages from 50 to 55 (JPur). (Entered: 01/26/2017)
145 SUPPLEMENTAL BRIEF re 143 Supplemental Brief, 141 MOTION for Leave to File Supplemental Evidence in Support of Defendants State Treasurer and RTAB's Motion to Dissolve Preliminary Injunction . Plaintiffs' Response to State Defendants' Supplemental Evidence and Supplemental Authority filed by All Plaintiffs. (Chaudhary, Dimple) (Entered: 01/26/2017)
Minute Entry for proceedings before District Judge David M. Lawson: Telephonic Status Conference held on 2/14/2017. (SPin) (Entered: 02/14/2017)
Set Deadlines/Hearings: Interim Status Conference reset for 3/20/2017 at 2:00 PM before District Judge David M. Lawson. (SPin) (Entered: 02/23/2017)

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04/04/2017
12/27/2017 01/04/2018 01/17/2018 01/18/2018

TEXT−ONLY NOTICE: Hearing on 3/20/2017 is Cancelled. (SPin) (Entered: 03/15/2017)
Minute Entry for proceedings before District Judge David M. Lawson: Telephonic Status Conference held on 3/20/2017. (SPin) (Entered: 03/20/2017)
Minute Entry for proceedings before District Judge David M. Lawson: Telephonic Status Conference held on 3/24/2017. (SPin) (Entered: 03/24/2017)
146 STIPULATION as to Substitution and Voluntary Dismissal of Certain Defendants by All Plaintiffs (Chaudhary, Dimple) (Entered: 03/27/2017)
147 STIPULATION as to Settlement Agreement by All Plaintiffs (Attachments: # 1 Exhibit 1− Settlement Agreement, # 2 Document Continuation Exhibits to Settlement Agreement) (Chaudhary, Dimple) (Entered: 03/27/2017)
148 STIPULATION for Entry of an Order Concerning Mediation Confidentiality by All Plaintiffs (Chaudhary, Dimple) (Entered: 03/27/2017)
149 NOTICE TO APPEAR: Hearing on Request to Approve Settlement set for 3/28/2017 at 1:00 PM before District Judge David M. Lawson. (SPin) (Entered: 03/27/2017)
150 ORDER Clarifying Confidentiality Provisions of Order Appointing Settlement Master. Signed by District Judge David M. Lawson. (SPin) (Entered: 03/27/2017)
151 ORDER AMENDING CAPTION AND DISMISSING DEFENDANT BEVERLY WALKER−GRIFFEA, ONLY. Signed by District Judge David M. Lawson. (LHos) (Entered: 03/28/2017)
Minute Entry for proceedings before District Judge David M. Lawson: Hearing held on 3/28/2017 Re: 147 Stipulation filed by Natural Resources Defense Council, Inc., Melissa Mays, American Civil Liberties Union of Michigan, Concerned Pastors for Social Action to Approve Settlement. Disposition: Granted. (Court Reporter: Andrea Wabeke) (SPin) (Entered: 03/28/2017)
152 ORDER APPROVING SETTLEMENT AGREEMENT AND DISMISSING CASE. Signed by District Judge David M. Lawson. (SPin) (Entered: 03/28/2017)
153 ORDER from U.S. Court of Appeals − Sixth Circuit re 99 Notice of Appeal filed by Beverly Walker−Griffea, Frederick Headen, Michael A. Finney, David McGhee, Michael A. Townsend, Nick A. Khouri [Appeal Case Number 16−2628] (Ahmed, N) (Entered: 03/31/2017)
154 TRANSCRIPT of Settlement held on 3/28/2017. (Court Reporter: Andrea Wabeke) (Number of Pages: 18) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/25/2017. Redacted Transcript Deadline set for 5/5/2017. Release of Transcript Restriction set for 7/3/2017. Transcript may be viewed at the court public terminal or purchased through the Court Reporter at www.transcriptorders.com or 248−867−2842 before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Wabeke, A) (Entered: 04/04/2017)
155 MOTION to Enforce Settlement Agreement by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Decl. of Dimple Chaudhary, # 3 Exhibit 2 − Decl. of Sarah Tallman) (Chaudhary, Dimple) (Entered: 12/27/2017)
156 NOTICE OF HEARING on 155 MOTION to Enforce Settlement Agreement. Motion Hearing set for 1/23/2018 at 3:00 PM before District Judge David M. Lawson. (SPin) (Entered: 01/04/2018)
157 RESPONSE to 155 MOTION to Enforce Settlement Agreement filed by Flint, City of, R. Steven Branch. (Attachments: # 1 Index of Exhibits Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D) (Kim, William) (Entered: 01/17/2018)
158 MOTION for Extension of Time to File Response/Reply as to 155 MOTION to Enforce Settlement Agreement (Unopposed) by All Plaintiffs. (Attachments: # 1 Index

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of Exhibits, # 2 Exhibit A − Morris v. Berghuis, # 3 Exhibit B − Henry v. Allstate Prop. & Cas. Co.) (Tallman, Sarah) (Entered: 01/18/2018)
159 ORDER Granting 158 Motion for Extension of Time to File Reply to 155 MOTION to Enforce Settlement Agreement. Reply due by 1/21/2018. Signed by District Judge David M. Lawson. (SPin) (Entered: 01/19/2018)
160 REPLY to Response re 155 MOTION to Enforce Settlement Agreement filed by All Plaintiffs. (Chaudhary, Dimple) (Entered: 01/21/2018)
161 NOTICE of Appearance by Angela N. Wheeler on behalf of Flint, City of. (Wheeler, Angela) (Entered: 01/22/2018)
Minute Entry for proceedings before District Judge David M. Lawson: Motion Hearing held on 1/23/2018 re 155 MOTION to Enforce Settlement Agreement filed by Natural Resources Defense Council, Inc., Melissa Mays, American Civil Liberties Union of Michigan, Concerned Pastors for Social Action. Disposition: Plaintiff may file supplemental brief by 3/15/2018; Defendants may reply by 3/22/2018. (Court Reporter: Rene Twedt) (SPin) (Entered: 01/23/2018)
162 TRANSCRIPT of Motion to Enforce Settlement held on 01/23/2018. (Court Reporter/Transcriber: Rene L Twedt) (Number of Pages: 28) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 3/7/2018. Redacted Transcript Deadline set for 3/19/2018. Release of Transcript Restriction set for 5/15/2018. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Twedt, R) (Entered: 02/14/2018)
163 STIPULATION re 155 MOTION to Enforce Settlement Agreement by All Plaintiffs (Chaudhary, Dimple) (Entered: 03/15/2018)
164 ORDER on Plaintiff's Motion to Enforce Settlement Agreement. Signed by District Judge David M. Lawson. (SPin) (Entered: 03/27/2018)
165 MOTION for Leave to File Excess Pages (Unopposed) by All Plaintiffs. (Tallman, Sarah) (Entered: 06/21/2018)
166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Decl. of Dimple Chaudhary, # 3 Exhibit B − Decl. of Stacy Woods) (Tallman, Sarah) (Entered: 06/21/2018)
167 ORDER Granting 165 Motion for Leave to File Excess Pages. Signed by District Judge David M. Lawson. (SPin) (Entered: 06/21/2018)
168 NOTICE OF HEARING on 166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement. Motion Hearing set for 8/1/2018 at 10:30 AM before District Judge David M. Lawson. (SPin) (Entered: 07/02/2018)
169 STIPULATION To Extend Response Deadline by R. Steven Branch, Flint, City of (Kim, William) (Entered: 07/02/2018)
170 ORDER to Extend Time to Respond to 166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement. Response due by 7/12/2018. Signed by District Judge David M. Lawson. (SPin) (Entered: 07/03/2018)
171 STIPULATION and Notice by All Plaintiffs (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − revised text of Paragraph 15, # 3 Exhibit 2 − revised text of Paragraph 15 (tracked changes)) (Chaudhary, Dimple) (Entered: 07/06/2018)
172 RESPONSE to 166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement filed by R. Steven Branch, Flint, City of. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit) (Kim, William) (Entered: 07/12/2018)
173 MOTION to Enforce Paragraphs 38 and 117 of Settlement Agreement and for Consolidated Hearing by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2

07/19/2018 07/19/2018 07/19/2018 07/20/2018 07/23/2018 07/24/2018 07/24/2018 08/03/2018 08/06/2018 08/15/2018
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08/20/2018
08/21/2018

Exhibit 1 − Decl. of Sarah Tallman, # 3 Exhibit 2 − Decl. of Sarah Fort) (Tallman, Sarah) (Entered: 07/13/2018)
174 ORDER AMENDING SETTLEMENT AGREEMENT. Signed by District Judge David M. Lawson. (SPin) (Entered: 07/19/2018)
175 MOTION for Leave to File Excess Pages for Reply Brief in Support of Motion to Enforce Paragraphs 29 and 30 of Settlement Agreement (Unopposed) by All Plaintiffs. (Tallman, Sarah) (Entered: 07/19/2018)
176 REPLY to Response re 166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Decl. of Sarah C. Tallman, # 3 Exhibit 2 − Suppl. Decl. of Stacy Woods, Ph.D., M.P.H.) (Tallman, Sarah) (Entered: 07/19/2018)
177 ORDER Granting 175 Unopposed Motion for Leave to File Excess Pages. Signed by District Judge David M. Lawson. (SPin) (Entered: 07/20/2018)
178 NOTICE OF HEARING on 166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement, and 173 MOTION to Enforce Paragraphs 38 and 117 of Settlement Agreement. Motion Hearing set for 8/21/2018 at 2:00 PM before District Judge David M. Lawson. (SPin) (Entered: 07/23/2018)
179 STIPULATION Extending Deadline by R. Steven Branch, Flint, City of (Kim, William) (Entered: 07/24/2018)
180 ORDER: Set Motion and R&R Deadlines/Hearings as to 173 MOTION to Enforce Paragraphs 38 and 117 of Settlement Agreement and for Consolidated Hearing :( Response due by 8/3/2018, Reply due by 8/15/2018) Signed by District Judge David M. Lawson. (DTof) (Entered: 07/24/2018)
181 RESPONSE to 173 MOTION to Enforce Paragraphs 38 and 117 of Settlement Agreement and for Consolidated Hearing filed by R. Steven Branch, Flint, City of. (Attachments: # 1 Exhibit) (Kim, William) (Entered: 08/03/2018)
182 NOTICE OF HEARING on 155 MOTION to Enforce Settlement Agreement . Motion Hearing set for 8/21/2018 at 2:00 PM before District Judge David M. Lawson. (SPin) (Entered: 08/06/2018)
183 REPLY to Response re 173 MOTION to Enforce Paragraphs 38 and 117 of Settlement Agreement and for Consolidated Hearing filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Decl. of Sarah C. Tallman, # 3 Exhibit 2 − Decl. of Sarah V. Fort, # 4 Exhibit 3 − Intuitive Surgical Operations, Inc. v. Midbrook, LLC) (Tallman, Sarah) (Entered: 08/15/2018)
184 MOTION for Leave to File Surreply to Plaintiffs' Reply (Dkt 183) by R. Steven Branch, Flint, City of. (Attachments: # 1 Exhibit Proposed Surreply to Plaintiffs Reply Dkt 183) (Kim, William) (Entered: 08/17/2018)
185 ORDER Granting 184 Motion for Leave to File Sur−Reply. Signed by District Judge David M. Lawson. (SPin) (Entered: 08/20/2018)
186 MOTION for Leave to File Supplemental Evidence in Support of Plaintiffs' Motion to Enforce Paragraphs 29 & 30 of Settlement Agreement by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Supplemental Declaration of Dimple Chaudhary, # 3 Exhibit B − Second Supplemental Declaration of Stacy Woods) (Chaudhary, Dimple) (Entered: 08/20/2018)
187 Amended MOTION for Leave to File Supplemental Evidence in Support of Plaintiffs' Motion to Enforce Paragraphs 29 & 30 of Settlement Agreement by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Supplemental Declaration of Dimple Chaudhary, # 3 Exhibit B − Second Supplemental Declaration of Stacy Woods) (Chaudhary, Dimple) (Entered: 08/20/2018)
Minute Entry for proceedings before District Judge David M. Lawson: Motion Hearing held on 8/21/2018 re 173 MOTION to Enforce Paragraphs 38 and 117 of Settlement Agreement and for Consolidated Hearing, 166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement. Disposition: Motions taken under advisement. (Court Reporter: Rene Twedt) (SPin) (Entered: 08/22/2018)

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188 ORDER DIRECTING SUPPLEMENTATION ON Motions to Enforce Settlement Agreement. Signed by District Judge David M. Lawson. (SPin) (Entered: 08/22/2018)
189 ORDER Dismissing as Moot Plaintiffs' 186 , 187 Motions for Leave to Submit Supplemental Evidence. Signed by District Judge David M. Lawson. (SPin) (Entered: 08/27/2018)
190 SUPPLEMENTAL BRIEF re 173 MOTION to Enforce Paragraphs 38 and 117 of Settlement Agreement and for Consolidated Hearing filed by R. Steven Branch, Flint, City of. (Attachments: # 1 Index of Exhibits, # 2 Exhibit, # 3 Exhibit) (Kim, William) (Entered: 08/27/2018)
191 STIPULATION re 173 MOTION to Enforce Paragraphs 38 and 117 of Settlement Agreement and for Consolidated Hearing by All Plaintiffs (Tallman, Sarah) (Entered: 09/06/2018)
192 ORDER ON PLAINTIFFS' MOTION TO ENFORCE PARAGRAPHS 38 AND 117 OF THE SETTLEMENT AGREEMENT. Signed by District Judge David M. Lawson. (SPin) (Entered: 09/10/2018)
193 TRANSCRIPT of Motion to Enforce Settlement held on 08/21/2018. (Court Reporter/Transcriber: Rene L Twedt) (Number of Pages: 158) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 10/1/2018. Redacted Transcript Deadline set for 10/11/2018. Release of Transcript Restriction set for 12/10/2018. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Twedt, R) (Entered: 09/10/2018)
194 SUPPLEMENTAL BRIEF re 155 MOTION to Enforce Settlement Agreement filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Decl. of Sarah Tallman, # 3 Exhibit 2 − Proposed Paragraph 118 Certification Form) (Tallman, Sarah) (Entered: 09/11/2018)
195 Joint MOTION TO EXTEND Time to File Post−Hearing Briefs re 166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement (Unopposed) by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Morris v. Berghuis, # 3 Exhibit B − Henry v. Allstate Prop. & Cas. Co.) (Tallman, Sarah) (Entered: 09/14/2018)
196 ORDER Granting Joint 195 Motion to Extend Time. Signed by District Judge David M. Lawson. (SPin) (Entered: 09/18/2018)
197 Ex Parte MOTION for Extension of Time to File Response/Reply as to 155 MOTION to Enforce Settlement Agreement by R. Steven Branch, Flint, City of. (Attachments: # 1 Exhibit City Defendants' Proposed Supplemental Response Brief) (Kim, William) (Entered: 09/19/2018)
198 ORDER Granting 197 Motion for Extension of Time to File Response/Reply. Signed by District Judge David M. Lawson. (SPin) (Entered: 09/20/2018)
199 Ex Parte MOTION for Withdrawal of Attorney Stacy Erwin Oakes by Flint, City of. (Kim, William) (Entered: 09/25/2018)
200 ORDER granting 199 Motion to withdraw as counsel re Attorney Stacy Erwin Oakes. Signed by District Judge David M. Lawson. (DPer) (Entered: 09/28/2018)
201 ORDER Dismissing Without Prejudice 155 Motion Enforce Settlement Agreement. Signed by District Judge David M. Lawson. (SPin) (Entered: 09/28/2018)
202 SUPPLEMENTAL BRIEF re 166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement filed by R. Steven Branch, Flint, City of, Sylvester Jones. (Kim, William) (Entered: 10/01/2018)
203 SUPPLEMENTAL BRIEF re 166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement filed by All Plaintiffs. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Hearing Transcript Excerpts, # 3 Exhibit 2 − Decl. of Sarah C. Tallman, # 4 Exhibit 3 − Decl. of Eric M. Schwartz) (Tallman, Sarah) (Entered: 10/01/2018)

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204 NOTICE by All Plaintiffs of withdrawal of 166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement. (Tallman, Sarah) (Entered: 10/01/2018)
205 ORDER DISMISSING 166 MOTION to Enforce Paragraphs 29 and 30 of Settlement Agreement as Moot. Signed by District Judge David M. Lawson. (SPin) (Entered: 10/06/2018)
206 STIPULATION and Notice by All Plaintiffs (Chaudhary, Dimple) (Entered: 02/12/2019)
207 STIPULATION and Notice (Corrected) by All Plaintiffs (Chaudhary, Dimple) (Entered: 02/12/2019)
208 ORDER AMENDING SETTLEMENT AGREEMENT. Signed by District Judge David M. Lawson. (SPin) (Entered: 03/26/2019)
209 ORDER Granting in Part Plaintiffs' 173 Third Motion to Enforce Settlement Agreement. Signed by District Judge David M. Lawson. (SPin) (Entered: 03/27/2019)
210 STIPULATION and Notice by All Plaintiffs (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B) (Chaudhary, Dimple) (Entered: 05/16/2019)
211 ORDER AMENDING SETTLEMENT AGREEMENT. Signed by District Judge David M. Lawson. (SPin) (Entered: 05/23/2019)
212 STIPULATION Allowing Michael Steinberg to Withdraw as Co−Counsel by All Plaintiffs (Steinberg, Michael) (Entered: 09/05/2019)
213 ORDER allowing stipulated withdrawal of co−counsel. Signed by District Judge David M. Lawson. (DPer) (Entered: 09/12/2019)
214 STIPULATION and Notice by All Plaintiffs (Tallman, Sarah) (Entered: 05/18/2020)