J.W. v. City of Jackson

663 F.Supp.3d 624

J.W., a minor, BY AND THROUGH Amanda WILLIAMS,Guardian and Next Friend, et al., Plaintiffs, v. The CITY OF JACKSON, MISSISSIPPI; Chokwe A. Lumumba;Tony Yarber; Kishia Powell; Robert Miller; Jerriot Smash;The Mississippi Department of Health; Jim Craig;Trilogy Engineering Services, LLC; and John Does 1-40, Defendants.

No. 3:21-CV-663-CWR-LGI

consolidated with No. 3:21-CV-667-CWR-LGI

No. 3:22-CV-171-CWR-LGI

United States District Court, S.D. Mississippi

Signed March 23, 2023

Before Carlton W. Reeves, District Judge.

ORDER

Carlton W. Reeves, United States District Judge

Water is essential. In the Book of Genesis, water precedes light and land, plants and trees, animals and people.¹

Water has power and force: God told Noah that He would "bring a flood of waters on the earth, to destroy from under heaven all flesh in which is the breath of life."²

Water also cleanses, purifies, and renews, as when the Hebrew prophet Amos admonished the Israelites to "let justice roll down like waters, and righteousness like an ever-flowing stream."³

And just as the Old Testament opens centering the importance of water, the New Testament closes comparing water to life itself: "Let the one who is thirsty come," it says, "and let anyone who wishes take the water of life as a gift."⁴

Mississippians know firsthand the promise and power of water—that water can both supply and take away. We know that the waters of the Mississippi River nourished and sustained the Native peoples who inhabited its alluvial plain thousands of years ago. But we also know of water's capacity to destroy. For example, in 1927, the Great Mississippi Flood, "one of America's greatest peacetime disasters,"⁵ killed hundreds of people in the Mississippi Delta and left hundreds of thousands more without food, shelter, clothing, or work. Less than a century later, in 2005, a hurricane and storm surge of Biblical proportions wiped out the Mississippi Gulf Coast, killing hundreds of people and uprooting hundreds of thousands of lives.

Water has been fundamental to our history.

That is why the conduct that the Plaintiffs have alleged here is so poignant. The Mississippians who brought this suit are children who have relied upon Jackson's water all their lives. Far from sustaining life, they say, Jackson's water shortens it: the lead-contaminated water that flows through Jackson's pipes has poisoned their bodies and impeded their development. Worse, they continue, City and State officials have been deliberately indifferent to their plight.

The City of Jackson's response? That its officials' claims of safety weren't technically lies, but, even if they were, the City "did not compel [the Plaintiffs] to drink water."⁶

The Plaintiffs' allegations have yet to be proven. This lawsuit is still in its early stages. For now, though, this Court concludes that the Plaintiffs have stated at least some legitimate claims for relief against at least some of the Defendants. Thus, their suit may proceed.

I. A Decade of Neglect

Jackson's water system was broken long before its collapse in August 2022. Indeed, the City has had water system issues in some form since its selection as the state's Capitol in 1822.⁷ But we need not go back that far to understand this litigation.

The conditions that gave rise to this suit can be traced back to 2013. That year, the Plaintiffs allege, the Mississippi State Department of Health ("MSDH") warned Jackson officials that federally mandated testing had revealed increasing levels of lead in the City's water supply. The City's Interim Director of Public Works Willie Bell communicated this finding to other Jackson officials and explained that the likely cause of the increase was the high acidity level from the Pearl River Basin site and a malfunctioning lime-feed injection system at the water treatment plant.⁸ Bell also warned that most of Jackson's homes had pipes that were partially or completely made of lead, and that lead-contaminated water could pose a high risk of lead poisoning to children.⁹

Despite these warnings, almost two years passed without any action from MSDH or the City.

Then, in July 2015, officials from MSDH again discovered elevated lead levels in the Pearl River Basin and the Ross Barnett Reservoir—the City's two main water sources.¹⁰ By this time, the lead levels exceeded what the United States Environmental Protection Agency ("EPA") considers "safe" for drinking water. MSDH's tests revealed that 22.4% of the homes it sampled had dangerously high concentrations of lead in their drinking water.¹¹

More months passed with no action.

In late January 2016, State and City officials informed Jackson's residents—for the first time—of the high concentrations of lead in their water. But when City officials finally shared the information with the public, they grossly downplayed the severity of the problem. City Public Works Director Kishia Powell was emphatic: "Our water is safe,"¹² she said; "there is no lead in the drinking water as it leaves the plant."¹³

"We're not Flint," said then-Mayor Tony Yarber.¹⁴ But the reality was that, in some ways, Jackson's water crisis was more dire than Flint's: whereas 16.7% of households in Flint were affected by the city's lead-contaminated water, more than a fifth (22.4%) of Jackson's households were so affected.¹⁵

About one month after Mayor Yarber and other City officials sought to pacify Jackson's residents with tales of the water's safety, Jonathan Yaeger, an employee at the Jackson Public Works Department, found evidence of lead materials while replacing one of the City's main underground water pipes. He brought it up with leaders at the Public Works Department and offered to raise the issue with the City Council, but Public Works officials discouraged the reporting. So Yaeger went public with what he knew about the high level of corrosivity in the water, the presence of lead in the City's pipes, and the threat of lead poisoning to children across the city.¹⁶ Powell immediately terminated Yaeger for "creating unwarranted public fear."¹⁷

In February 2016, MSDH issued the first of several boil-water notices for the City of Jackson. It also began working with the City on a Compliance Plan that would bring the water system into compliance with the federal Safe Drinking Water Act ("SDWA").¹⁸ The Plan required Jackson to reduce the acidity level in its water system by maintaining a pH of at least 8.5 and an alkalinity level of between 50 mg/l and 70 mg/l by October 2016. Because most of the lead in residents' water was a result of the water moving through the City's ancient lead pipes (as opposed to lead problems at the treatment plant), the City was also required to adopt a Corrosion Control Plan ("CCP"). As part of the CCP, the City agreed to install new equipment that would help raise the water's pH and reduce corrosion in the lead-coated distribution lines. But according to the Plaintiffs, the City did not begin installing the necessary equipment for the CCP until October 2017—more than a year after it adopted the Plan.

In late Spring 2016, the City of Jackson hired Trilogy Engineering Services to study the water system's corrosion problem and help the City determine how it might better comply with the SDWA. This was, of course, after the City had entered into the Compliance Plan with the MSDH, which was ostensibly designed to achieve the same goal. In any event, Trilogy performed the study and recommended to Jackson that it maintain a pH of 8.6 and "retrofit the liquid lime system into a system which uses soda ash."¹⁹

The City adopted Trilogy's recommendation on the use of soda ash, but this brought about a host of new problems. Because the City's water treatment plants were not designed to accommodate soda ash, and because Mississippi experiences high levels of humidity in the summer, the soda ash formed rock-like clumps in the system that jammed the feed. This further exacerbated water delivery problems. So, the City had to scrap that plan and was back where it began.

Mayor Chokwe Antar Lumumba informed the public of the soda ash problem and of the City's history of violations in a press conference on July 18, 2018.²⁰ He explained that the problems dated back at least two administrations, and that his father, the first Mayor Lumumba, had incorporated line items into the City's 2014 budget to fix the system, but that Mayor Yarber removed those line items upon assuming the mayoralty.²¹

For the remainder of 2018 and continuing through 2020, the City consistently failed to get the water system back up and running. Instead, the City, in conjunction with MSDH, issued a series of boil water notices. According to the Plaintiffs, these notices only served to worsen the problem because "the water boils off and evaporates but the lead does not, leading to a higher concentration of toxic lead in the resulting drinking water."²²

By 2020, the EPA was back in the picture. In early February of that year, representatives from the EPA arrived in Jackson to inspect the City's water treatment plants for compliance with the SDWA. They found several violations. These included violations that the City had already made public (like the difficulty of maintaining an adequate pH level), and previously unreported violations, like malfunctioning disinfection devices, nonfunctioning membrane integrity testing equipment, and violations of the National Public Drinking Water Regulations.²³

The EPA's Director of Enforcement and Compliance explained these violations in an Emergency Administrative Order sent to Mayor Lumumba on March 27, 2020. She concluded that the City's violations "present an imminent and substantial endangerment to the persons served by the system," and that the severity of the violations required ongoing "public notification" until the EPA determined that such reporting was no longer necessary.²⁴ The Plaintiffs allege that the City immediately violated the Order by withholding the Order from the...