Plaintiffs, CASE NO.: Y3 I ~‘

V.

HON. ARCHIE L. HAYMAN

CITY OF FLINT, a municipal entity, and P47516CITY OF FLINT ADMINISTRATOR NATASHAHENDERSON, In her official capacity

Defendants.

TRACHELLE C. YOUNG (P63330)Attorney for Plaintiffs2501 N. Saginaw StreetFlint, MI 48505

(810) 239-6302(810) 234-7357 Fax

m

There is no other civil action between these parties arising out of the same transactionor occurrence as alleged in this complaint pending in this court, nor has any suchaction been previously filed and dismissed or transferred after having been assignedto a judge. I do not know of any other civil action, not between these parties, arisingout of the same transaction or occurrence as alleged in this complaint that is eitherpending or was previously filed and dismissed, transferred, or otherwise disposed ofafter having been assigned to a judge in this court.

COMPLAINT FOR INJUNCTIVE RELIEF. DECLARATORY RELIEF

AND VIOLATION OF PLAINTIFFS FOURTEENTH

AMENDMENT RIGHT TO DUE PROCESS

NOW COMES Plaintiffs, COALITION FOR CLEAN WATER, by and through their

attorney, Trachelle C. Young, & Assoc., P.L.L.C., by attorney Trachelle C. Young, and for their

Complaint, states as follows:

Parties, Jurisdiction and Venue

1. Plaintiffs, Coalition for Clean Water (Coalition), is a Michigan nonprofit

organization, based in Genesee county, Michigan and organized for the purpose of

Page 1 of 19 DEFENDANT’S

iT
Coalition for Clean Water is comprised of multiple civic groups, including but not

limited to, Concerned Pastors for Social Action, Water You Fighting For, DemocracyDefense League Water Task Force, Flint Water Class Action Group, Dr. Laura

Sullivan, Phd, l~ Ward City Councilman Eric Mays.

2. Defendant, City of Flint (hereinafter “Flint”), is a city organized under the

constitution and laws of the State of Michigan and is a political subdivision ofthe

State of Michigan.

3. Defendant, City of Flint Administrator Natasha Henderson, (hereinafter “City

(Th Administrator”), is the City’s ChiefAdministrative Officer operating under expanded c-i

powers that give her ultimate day to day control over the City.

4. This matter concerns the City’s failure to pass the Environmental Protection

Agency’s (EPA) locational running annual average (LRAA) of the most recent four

quarters water quality tests, thereby subjecting the citizens of Flint to unhealthy,

contaminated drinking water.

5. Venue and jurisdiction are proper in this Court because plaintiffs seeks declaratory

and injunctive reliefto cease the City of Flint’s current methods, acts, and/or

practices of utilizing the Flint River as the primary source for drinking water asunlawful due to the proven deleterious health effects on the residents of the City and

to require the City to return to using water from the Detroit system, at least

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a/Ic/a The Safe Drinking Water Act (Act), Section 1449, which allows citizens to

bring suit against any person or agency allegedly in violation ofprovisions ofthe Act.

General Allegations

7. That the Coalition incorporates by reference allegations 1 through 6 as though filly

set forth herein.

8. That the City of Flint had purchased its drinking water from DWSD for the past thirty

plus (30+) years under an original thirty (30) year contract executed in 1964, which

continued on a year to year basis.

C) 9. That Genesee County purchased its water from the City to get the Lake source water from DWSD.

10. That the City ofFlint River has not been used as a primary source for drinking water

in fifty (50) years.

11. That the Flint River hadn’t been used as a primary source for drinking water due to a

number of threats, including but not limited to improperly disposed of chemicals;

animal wastes; pesticides; human wastes; wastes injected deep underground; andnaturally-occurring substances affecting surface water.

12. That the source of the water purchased from Detroit was Lake Huron.13. That Lake water has lower levels oftotal organic carbon than river water.14. That Lake water requires a different treatment process than River water.

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Authority (KWA), which sought to build new pipelines from Lake Huron to theCounty of Genesee and the City of Flint.

17. That the overall cost ofbuilding this pipeline is approximately 600 million dollars

and it is not estimated to be completed until sometime towards the end of 2016.

18. That on April 26, 2010, the Flint City Council voted to join the KWA.19. That on October 26,2010, the KWA Board of Trustees met for the first time with

representatives from the incorporating Cities ofFlint (Mayor Dayne Walling),Lapeer (City Manager Dale Kerbyson), and County Drain Commissioners of Genesee

() (Jeff Wright), Lapeer (John Cosens) and Sanilac (Gregory L. Alexander). Walling

was elected chair.

20. That on April 16, 2013, Flint’s Emergency Manager, Ed Knit, ended the City’s

contract with Detroit by signing a contract with the KWA.

21. That in response to Kurt’s actions, on April 17, 2013, the DWSD gave the City of

Flint a one (1) year notice based on the termination of its contract to supply water tothe City of Flint effective April 17, 2014.

22. That on October 16, 2013, ten additional trustees were added to the board oftrustees:

former state House Minority Leader Richard Hammel; Johsua Freeman, Flint CityCouncil; Larry Green, Mt. Morris Township supervisor; Ted Henry, Genesee County

commissioner; Micki Hofthaan, Grand Blanc Township supervisor; Steve Landaal,

president of Landaal Packaging; Sheldon Neeley, Flint City Council; Thomas Svcek,

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source of drinking water.

24. That upon switching to the Flint River water, the City ofFlint failed the EPA’s

LRAA water quality tests on May 21,2014, August 21,2014 and November 20,2014.

25. That as a result ofthese failed tests, the City of Flint was requixed to send out

Violation Notices to all the residents that stated theft water system recently violated a

drinking water standard and people who have a severely compromised linniunesytem, have an infant, or are elderly may be at increased risk and should seek advice

(1) about drinking water from their health providers. See Exhibit A

26. This required Notice further stated that the violation was based on elevated levels of

total trihalomethanes (TTHM), and that people who drink water containingtrihalomethanes in excess of the MCL over many years may experience problems

with theft live; kidneys, or central nervous system, and may have an increased risk ofgetting cancer. See Exhibit A

27. That ITHM is an odorless, colorless disinfection byproduct, the fallout of

chlorinating water.

28. That in June 2014, Flint emergency manager Darnell Barley finalized the sale of an

Eastern Genesee County 9-mile section of water pipeline to Genesee County for $3.9million.

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30. That upon information and belief, that 3.9 million was given directly to the KWA as

part of the City’s investment in that pipeline.

31. That compliance with EPA standards is calculated using a LRAA of the most recent

four (4) quarters.

32. That the City ofFlint Mayor admitted the City underestimated the challenges of

treating River water.

33. That the City of Flint failed to properly prepare for the transition to River water as a

primary drinking source and recklessly endangered the health, safety and welfare of

its residents as a result thereof

34. That in attempting to treat the River water, the City of Flint over chlorinated the

water, which directly caused the elevated levels of TTNM.

35. That because the City failed the November 20, 2014 LRAA test, it cannot be in

compliance with the EPA standards until it passes the February 2015, May 2015,

August 2015 and November2015 tests.

36. That upon information and belief, the City passed the February 2015 tests, was out of

compliance at two of the eights sites in March 2015 and passed the May 2015 LRA.Atests, but they still required to send out the EPA Violation Notices.

37. That the Notices sent out by the City ofFlint appear deceptive and contradicting in

that it contains two pages: the first is a colorful, attention grabbing sheet that startswith “We are pleased to report that the City of Flint water is safe and meets U.S.

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water, which is not in bold print and the same health warnings and cautions apply.

See Exhibit C

38. That due to a major community concern, all of the local major grocery stores lowered

the cost ofbottled water, there have been and continue to be community giveaways of

bottled water for low income residents that can’t afford to purchase theft water, the

Flint hospitals began using and offering bottled water, the Department of Human

Service’s Bureau of Child and Adult Licensing recommended to the Genesee

Intermediate School District, which runs a Head Start program in Flint, to use bottledwater and said children have since been given bottled, The Flint Children’s Museumhas stopped the flow ofFlint water at its fountains and the list goes on.

39. That there were three boil water advisories in a 22-day span in the summer of 2014

after positive tests for total coliform and fecal coliform bacteria in the Flint River.

40. That in October 2013, General Motors (GM) shut off its usage ofFlint River water at

its Flint Engine Operations on West Bristol Road because the water was causing

corrosion of its engines and the agreement states GM is not required to return to the

usage with the City of Flint until it is back to using water from Lake Huron through

the K.WA.

41. That members ofthe Coalition, including those with severely compromised immune

systems, infants and elderly, have suffered severe health problems that have been

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discoloration, turbidity, particles and sediments in the system.

43. That in February 2015, several concerned citizens contacted activist Erin Broekovich

seeking assistance with the growing major health impacts ofthe Flint River usage.

44. That Erin Brockovich did send an expert from Integrated Resource Management, Inc.,

Bob Bowcock — free of charge — to review the operations at the Flint Water Plant andthe quality of the water being distributed.

45. That Mr. Bowcock prepared and submitted to Mayor Walling and the Flint City

Council a report dated February 17, 2015, which made several recommendations on

C) the source supply evaluation, the Water Treatment Plant, the Distribution System Operations and Budget & Rate Concerns. See Exhibit 13

46. That the City of Flint then paid a consulting company, Veolia, $40 thousand dollars

(at $900/br) in March 2015 to conduct a short term assessment of the operation ofthe

• water plant, distribution system and customer connnunications programs and make

recommendations.

47. That the Veolia report made numerous long term and costly recommendations,

including but not limited to operational changes and improvements, changes in watertreatment, procedures and chemical dosing, adjustments in how current technologies

are being used, increased maintenance and capital spending, increased training and

improved customer communications. See Exhibit E

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49. That the City has disclosed its plans to date to invest $5 million dollars in the

following manner:

a. $900,000 in water main leak protection;

b. $1.6 million fro a GTanular Activated Carbon (GAC) Filter at the plant meant

to treat the River water;

c. $2.1 million to replace pipes along Dupont Street (@ $1 million per mile);d. $400,000 in water treatment improvements.

50. That likewise, drinking water that is not properly treated or disinfected, or which

travels through an improperly maintained distribution system, may also pose a health

risk.

CD 51. That the City ofFlint received a $2 million dollar grant and Emergency Manager

Jerry Ambrose was allowed to restructure $2 million dollars in water loan debts thatwould have gone to the EPA.

52. That as a result, $4 million of the $5 million being invested did not come from the

excessive water rates the City ofFlint charges.

53. That upon information and belief, the City has collected approximately $30 million

dollars from its water rates to its customers since it began using the Flint River as theprimary source.

54. That upon information and belief, the City has a net $10 million in the water fund

from the excessive water rates.

55. That this initial $5 million investment doesn’t begin to touch the major investment

needed to bring the City ofFlint Plant to the point it needs to be.

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Flint

s Plant needs the necessary and recommended investments made before it is

allowed to continue as the treatment plant for the City of Flint’s primary source of

drhuldng water.

58. That the City of Flint charges the highest water rates in the county of Genesee and the

rates are almost eight times higher than the national average.

59. That MCL 141.121 requires a municipality to base its water rates at the reasonable

cost of delivering the service.

60. That the City’s water rates have not declined since it began using the Flint River as a

Q primary source of drinking water, but have increased in spite of the fact that the City

is not only saving the $1 million dollars it paid Detroit monthly, but also continues tocollect from Plaintiffs and its residents.

61. That the unhealthy quality of the water combined with the excessive rates charged by

the city have caused residents to move out of the City of Flint or simply go without

water consumption.

62. That the human body is 60% water, water is needed for proper circulation respiration

and converting food to energy and every human needs water to live.

63. That the residents of the City of Flint have converged to Flint City Council Meetings

demanding something be done about the unhealthy River water.

64. That many residents have held protests and marches to protest the poor quality of the

D expensive Flint River water.

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66. That the President ofthe Flint City Council, Josh Freeman, (who sits on the KWA

Board) was the lone vote against the Resolution.

67. That Mayor Dayne Walling (Chair of the KWA Board) is also against reconnecting to

DWSD.

68. That both Councihnan Freeman and Mayor Walling have positions on the KWA

Board that have placed them in a conflict of interest of being either unable or

unwilling to represent the interests of the constituents they were elected to represent.

69. That the previous Emergency Manager Gerald Ambrose, pursuant to PA 436, gave

(3) the City Administrator the authority and ability to implement executive and

legislative directives and policies of the Mayor and City CounciL subject only to aReceivership Advisory Transition Board (Board).

70. That the City Administrator has chosen not to acknowledge, respect or follow the

duly adopted resolution by the City Council.

71. That the City of Flint residents and citizens are the only people in the entire County of

Genesee that are being forcibly subjected to Flint River water against their will.

72. That Sue McCormick, Director of DWSD, made a personal appearance to the Flint

City Council in addition to stating in a letter to Flint that Detroit would sell treatedlake water to Flint for a fixed monthly rate of $846,700 and $14.92 per 1,000 cubicfeet without a long term deal and with no strings attached.

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74. That the Coalition incorporates by reference allegations 1 through 73 as though fully set

forth herein.

75. That a dispute has arisen between the Plaintiffs and Defendants regarding the condition

ofthe City of Flint’s water, the City’s ability to properly and effectively run the City ofFlint Water Plant, whether the water plant operators and personnel are properly trained

and certified, the City’s ability to treat River water and/or Lake water and whether the

City has violated the Safe Drinking Water Act.

76. That Plaintiffs maintain the City of Flint’s usage of the Flint River as a primary source of

drinking water has and continues to pose a major and serious threat to the health, safetyand welfare of the residents of the City of Flint, that the City has not made the necessary

investment in the water plant that has been recommended by two experts, that the water

plant operators and personnel have not received the recommended and necessary training

and certifications to run the plant effectively, that until the City satisfies the EPAstandard ofpassing the four quarterly LRAA tests, it has not proven its ability to

effectively treat River and/or Lake water, and that the City has violated the Safe Drinking

Water Act.

77. That the Safe Drinking Water Act mandates that states have programs to certif~’ water

system operators and make sure that new water systems have the technical, financial,and managerial capacity to provide safe drinking water.

Q

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79. That the City ofFlint has also failed to demonstrate their ability to properly treat lake

water once the transition is made to the KWA.

80. That the decision to switch to the KWA, which led to the termination ofthe eontrict with

DWSD was never subject to input from the citizens ofFlint and they were effectively

disenfranchised from any input in such a major decision.

81. That Plaintiffs and the residents of the City of Flint have suffered at the hands of the City

ofFlint and the City Administrator, both of whom are not acting in the best interest oftheresidents and citizens ofFlint

82. That the residents and citizens of Flint have a basic and human right to clean thinking

0 water — free of contamination.

83. That an actual and existing controversy exists between the Plaintiffs and the

Defendants as to their legal relations in respect to the above identified matters and a

declaratory judgment is necessary to guide the Plaintiffs and Defendant’s futureconduct and in order to preserve and protect the Plaintiffs legal rights.

84. For the reasons set forth above, Plaintiffs seek a declaratory judgment that the City of

Flint’s usage of the Flint River as a primary source of drinking water has and continues to

pose a major and serious threat to the health, safety and welfare ofthe residents of the

City of Flint, that the City has not made the necessary investment in the water plant that

has been recommended by two experts, that the water plant operators and personnel havenot received the recommended and necessary training and certifications to run the plant

effectively, that until the City satisfies the EPA standard of passing the four quarterly

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COUNT IL INJUNCTIVE RELIEF

85. That the Coalition incorporates by reference allegations I through 84 as though fully set

forth herein.

86. Should the Court grant plaintiff declaratory relief; and to the extent that it may be

necessary, Plaintiffs seek an Temporary and/or Permanent Injunction restraining the

Defendants from continuing to utilize the City of Flint Water Plant to treat the Flint

River as the City’s primary source of drinking water until it can satisfactorily show

compliance with either of the expert recommendations by Veolia or Bob Bowcockand from taking or continuing any action contrary to the declaration ofrights soughtby Plaintiffs and to appoint a Receiver to run and operate the City water plant until

further Order ofthe Court.

87. That Plaintiffs further seek a Temporary Injunction requiring the City ofFlint to

utilize the DWSD as its primary source of drinking water until such time as it can

demonstrate total compliance with the EPA’s quarterly LRAA tests.

88. That ifthe Court fmds that the City can continue run the water plant without the

necessary and proper training and personnel and attempt to treat the River water at the

expense and against the will ofthe residents and elected officials, Plaintiffs will sufferimmediate and irreparable harm to their health, safety and welfare, particularly the

most vulnerable individuals (those with compromised immune systems, the elderly

and the infants).

Q.

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granting such relief as the Court deems just and necessary to effectuate thedeclaratory relief granted.

WHEREFORE, Plaintiff pray that this Honorable Court will declare the rights and

responsibilities ofthe parties hereto, issue a declaratory judgment and Order Temporary and/or

Permanent Injunctive Relief as requested.

COUNT UI -VIOLATION OF PLAINTIFF’S FOURTEENTh ANENDMENT

TO TIlE UNITED STATES CONSTITUTION

90. That the Coalition incorporates by reference allegations I through 89 as though fully set

forth herein.

Q 91. That the City of Flint has a legal obligation to provide municipal water service to its

residents.

92. That the Safe Drinking Water Act requires that the water provided meet certain safety

standards.

93. That safe drinking water is a necessity to live.94. That Plaintiffs have a liberty or property interest in receiving safe thinking water to

which procedural due process rights apply.

95. That the 14th Amendment to the US Constitution prohibits states from depriving citizens

of“life, liberty, or property” without “due process of law.

96. That Plaintiffs were disenfranchised from the decision to terminate the contract with

DWSD by the City’s Emergency Manager Ed Kurtz and there was no procedure that

accompanied that unilateral decision that allowed input, protests, hearings, concerns or

questions by the people that were directly impacted.

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ofthe action and afford them an opportunity to present their objections.

98. That no “Notices” were sent to the Plaintiffs or residents of Flint explaining the different

type of water source, any preparation for the transition, the proposed treatment process or

the capability of the plant and the persoimel to treat any water, let alone River water.

99. That ifthe

100. Defendant Equity did attempt to collect monies that Plaintiffs did not owe and eFeated

confusion or misunderstanding with respect to the authority of a salesperson,

representative or agent to negotiate the final terms of a transaction, in violation ofMCL

445 903(l)(m)

Q 101. Defendant Equity has caused a probability of confusion or misunderstanding as to the

legal rights, obligations or remedies of a party to a transaction, in violation ofMCL

445.903(fl(n).

102. Defendant Equity has engaged in the practice of making liens against real property of

homeowners for association dues, assessments, costs and attorney fees associated with

the collection ofthose fees that are grossly excessive, and unless restrained by this court,will continue to engage in such practice.

WHEREFORE , Plaintiffs, by and through their attorney, respectfully requests that this

Honorable Court find that Plaintiffs have a liberty or property interest in safe drinking water, that

Defendants have violated that right without due process of law and enter judgment in Plaintiffs favor

and against Defendants in an amount greater than Twenty-Five Thousand ($25,000.00) Dollars, in

accordance with MCL 445.911(3), plus costs, including reasonable attorney fees and grant them such

other relief as the Court deems warranted under the circumstances.

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p

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in paragraphs 1 through 102 and incorporate them herein by reference.

104. That Section 1983 states, “Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or Territory or the District ofColumbia, subjects, or causes to be subjected, any citizen of the United States orother person within the jurisdiction thereofto the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable to theparty ir~ured in an action at law, suit in equity, or other proper proceeding forredress, except that in any action brought against ajudicial officer for an act or

omission taken in such officer’s judicial capacity, injunctive relief shall not begranted unless a declaratory decree was violated or declaratory relief wasunavailable.”

105. That Plaintiffs have a liberty or property interest in clean, safe water.

106. That the City has engaged in a practice that has deprived Plaintiffs of safe, clean

water without due process, including notice, input, or public hearings before, during

or after said deprivation.

107. That the City has deliberately disenfranchised Plaintiffs and deprived them of

their liberty or property interest in clean, safe water without due process of law, or

just compensation, in violation of the Fourteenth Amendment of the United States

Constitution and Article I § 17 of the Michigan Constitution.

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all laws and proceedings for the security of persons and property as is enjoyed by

white citizens, and shall be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.”

109. That Plaintiffs are the victims of discriminatory conduct by the City by virtue of

the contract between Plaintiffs and the City whereby the City agrees to provide clean,

safe water in exchange for Plaintiffs payment of a monthly usage fee.

110. That the City has breached this contract by failing to provide safe, clean water

following their unilateral decision to terminate the contract with DWSD.

111. That as a result of the City’s breach, Plaintiffs have been damaged and deprived

of their property interests in safe, clean water without due process of law or justcompensation, in violation of the Fourteenth Amendment of the United States

Constitution and Article I § 17 of the Michigan Constitution.

WHEREFORE , Plaintiffs, by and through theft attorney, respectfully requests that this

Honorable Court find that Plaintiffs have a liberty or property interest in safe drinking water, that

Defendants have violated that right without due process of law and enter judgment in Plaintiffsfavor and against Defendants in an amount greater than Twenty-Five Thousand ($25,000.00)Dollars, in accordance with MCL 445.911(3), plus costs, including reasonable attorney fees and

grant them such other relief as the Court deems warranted under the circumstances.

C)

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0

Dated: June 5,2015

Dated: June 4,2015

Dated: June 5,2015

Dated: June 5, 2015Dated: June 5,2015

Pastor ‘fred L Harris, Concerned Pastord For Social Action, Plaintiff

Dated: June 5,2015 2 ~ci~~uneilman

Eric Mays, V~ Ward F

Re~ectfully Submitted,

C. YOUNG & Assoc , PLLC

Dated: June 5,

~—_Ey~’t~âehelle C. Young ~P~ä3a

Attorney for Plaintiffs2501 N. Saginaw Street

Flint, MI 48505

Florlisa Fowler, PC t Water Class Action Group

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