Judge Orders Door-to-Door Delivery of Bottled Water in Flint

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By Stephen Joyce

Nov. 14 — State and local officials may soon come knocking on the doors of Flint, Mich., residents bearing gifts of water— bottled water.

The U.S. District Court for the Eastern District of Michigan Nov. 10 ordered state and city officials to provide door-to-door water delivery for up to 35,000 or possibly more Flint households, which could cost up to $11 million per month depending on how it’s done ( Concerned Pastors for Social Action v. Khouri , E.D. Mich., No. 16-cv-10277, opinion and order 11/10/16 ).

While the court is ordering home delivery of bottled water, the larger legal case of permanently remedying Flint’s contaminated drinking water now enters its next phase of litigation.

Plaintiffs and their advocates hailed the ruling as a victory, but the Natural Resources Defense Council lawyer Sarah Tallman told Bloomberg BNA Nov. 14 the preliminary injunction is a temporary measure aimed at ensuring Flint residents have immediate access to clean drinking water.

The case now proceeds to its liability and remedy phases, during which the court will determine whether the defendants are liable for violating the Safe Drinking Water Act. The Michigan treasurer and the members of the Flint Receivership Transition Advisory Board and Flint’s city administrator are defendants in the case.

"[W]e will litigate what the appropriate long-term remedy will be,” said Tallman, whose organization is a plaintiff in the case.

While the Nov. 10 order had immediate effect, it’s unclear how the state and city of Flint intend to comply with the order—or elect to appeal the decision.

“We have heard nothing either way,” Tallman said. “I think there are some open questions about how the order will be implemented.” The order requires defendants to file a status report on its compliance with the order no later than Dec. 16.

Andrea Bitely, spokeswoman for Michigan Attorney General Bill Schuette (R), referred questions about the case to the office of Gov. Rick Snyder (R). His spokeswoman, Anna Heaton, did not immediately respond to a request for comment.

Flint residents have been living without access to safe drinking water since 2014 when the city’s tap water was found to be contaminated with high levels of lead, a result of switching the source of the city’s drinking water to save money.

Government Arguments Unpersuasive

The court order requires the defendants to deliver temporarily, door to door, four cases of bottled water per week per resident. The order allows households to opt out of the delivery system or receive, free of charge, a faucet filter that will be installed and maintained by the state or city instead of receiving the bottled water.

In court testimony, Michigan State Police Capt. Christopher Kelenske said door-to-door delivery of five cases of bottled water each week for every home in Flint would cost $9.4 million per month; delivering 10 cases would cost $11.4 million per month.

Defendants in the case argued the relief sought was not worth the cost, an argument the court in its Nov. 10 order found unpersuasive. Defendants argued the state and city can’t afford door-to-door distribution of bottled water, but the court was not persuaded by that argument, either.

Flint residents are currently able to pick up bottled water from nine points of distribution around the city, but plaintiffs countered in court filings that requiring residents to seek out bottled water at distribution points disrupts lives and a sense of normalcy, essentially turning residents into scavengers. It also created undue hardships for the elderly and infirm, they argued.

The order also requires the defendants to provide Flint residents with “clear and current information” about lead contamination in the city’s drinking water and the dangers associated with unfiltered tap water from the city’s water system.

In instances where residents elect to use a faucet filter, defendants must inspect each filter every month for the first three months after installation and then at least every other month thereafter to ensure it and its cartridge have been maintained properly and are functioning, the order said.

To contact the reporter on this story: Stephen Joyce in Chicago at sjoyce@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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