UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
Western Division
_______________________________________
MICHAEL HOOTSTEIN )
Plaintiff )
v. )
) CASE NUMBER
AMHERST-PELHAM REGIONAL ) JURY DEMAND
SCHOOL COMMITTEE )
Defendant )
_______________________________________ )

COMPLAINT FOR DECLARATORY

AND INJUNCTIVE RELIEF

INTRODUCTION

1) Whereas, comprehensive lead testing directed by the Massachusetts Department of

Environmental Protection ("DEP") in August-September, 2016, proves Amherst

public school drinking water is dangerously more lead-contaminated than Flint

drinking water, pro se plaintiff Michael Hootstein, the custodial grandparent of an

Amherst Regional High School student, seeks declaratory and injunctive relief to

compel the Amherst Regional ("AR") School Committee to get the toxic lead out

of Amherst school drinking water in accordance with scientific, evidenced-based

school health and public safety standards set forth by the proposed Massachusetts

Act Ensuring Safe Drinking Water at Schools and Early Childhood Programs

(Senate Bill No. 456 and House Bill No. 3453) which requires the immediate shut-

off of school drinking or cooking water outlets where water contains more than

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 one part per billion ("1 ppb") of lead as recommended by the American

Academy of Pediatrics to safeguard children.

2) This is a public health emergency of great public importance and significance.

3) Plaintiff asserts defendant AR School Committee, by its conduct, deprives the

plaintiff, his grandson, all students, parents, teachers, staff and members of the

general public of his/her individual and collective rights, under color of law, to life,

liberty and the pursuit of happiness secured under the 14th Amendment to the

United States Constitution (Count I) and Article 97 of the Massachusetts

Constitution (Count II) guaranteeing all state citizens the "right to clean water".

4) Defendant AR School Committee continues to act in an arbitrary and irrational

manner with deliberate indifference, to violate the plaintiff's, grandson's and others'

14th amendment right to procedural and substantive due process by depriving

each, under color of law, of his/her right to bodily integrity and right to not be

intentionally subjected to a government-created danger - the foreseeable risk of

being lead-poisoned at an Amherst public school from drinking lead-contaminated

water deceptively certified as safe by defendant School Committee.

5) Defendant AR School Committee commenced violating the plaintiff's and other's

rights when it gained knowledge (in September, 2016) that children, plaintiff and

others were likely drinking/ingesting lead-contaminated school drinking

water/food but instead chose to misinform and not warn students, parents, teachers

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 or school staff about the foreseeable risk of lead-poisoning injury that was/is likely

to result from drinking/ingesting lead-contaminated Amherst school water/food.

6) For over a year now, defendant School Committee has continued to deny

irrefutable scientific evidence proving Amherst school drinking water dangerously

exposes students (like plaintiff's grandson), parents (like the plaintiff), teachers and

school staff to dire injury and imminent impairment known to be caused by even

low levels of lead toxicity that bioaccumulates over time and is mostly stored in

human bone (90%) not in blood.

7) As a direct and proximate result of defendant School Committee's arbitrary,

irrational and deliberately indifferent conduct, the plaintiff custodial parent is

deprived of his rights in the care and protection (in the best interest) of his child;

and he is injured and damaged in his property, personal health, physically,

emotionally and economically by the inherently dangerous activity of the aforesaid

defendant AR School Committee.

JURISDICTION

8) This is a civil action brought pursuant to 42 U.S.C. 1983 and the Fourteenth

Amendment to the United States Constitution and Article 97 of the

Massachusetts Constitution: "The people shall have the right to clean air and

water", seeking declaratory and injunctive relief.

9) This Court has jurisdiction pursuant to 28 U.S.C. 1331 and 1343, which

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 authorizes federal courts to decide cases concerning federal questions and civil

rights; and pursuant to 28 U.S.C. 2201, the Declaratory Judgment Act. 28 U.S.C.

1367 provides supplemental jurisdiction over plaintiffs' Article 97 of the

Massachusetts Constitution state law claims.

10) Venue is proper in the United State District Court for the District of

Massachusetts, Western Division pursuant to 28 U.S.C. 1391 (b) as all acts

complained of occurred within this District.

THE PARTIES

11) Defendant Amherst-Pelham Regional School Committee, with principal offices at

170 Chestnut St., Amherst, MA 01002, is solely authorized by Massachusetts

General Law, Chapter 71, 37, with the powers and duties to prevent the

systematic, wide-spread lead-poisoning of Amherst Regional children, parents

(like the plaintiff), teachers, staff and members of the general public who

participate in Amherst school activities. The Amherst-Pelham Regional School

Committee, herein named in its official capacity, is legally culpable for its own

conduct under Massachusetts General Law, Chapter 71, 37 when it violates the

rights and liberties of students, parents (like plaintiff), teachers, school staff and

members of the general public who use school facilities.

12) Plaintiff Michael Hootstein, PO Box 158, Shutesbury, MA 01072, is a resident

and taxpayer of Shutesbury, MA. He is proud parent of an Amherst graduate and a

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 proud custodial grandparent of his older grandson (who is an Amherst High School

student with a learning disability) and his 5-year-old grandson who will be

following his big brother and be educated in the Amherst Schools. In accordance

with the towns of Amherst, Pelham and Leverett, plaintiff's town of Shutesbury is a

member per agreement of the Amherst Regional School District, established under

the provisions of 15 of Chapter 71 of the Massachusetts General Laws.

FACTUAL ALLEGATIONS

13) There is a compelling state interest in the protection of children and the prevention

of their systemic, wide-spread lead-poisoning.

14) Virginia Tech's "Flint" water study (See flintwaterstudy.org) memorializes lead-

testing performed in Flint, Michigan in March, 2016: "Even more worrisome,

given that we could not target "worst case" homes with lead plumbing that are

required for EPA sampling, Flint's 90%'ile lead value is 25 ppb" (90% of the

samples tested have lower lead concentrations than 25 parts per billion and 10% of

samples tested have higher lead concentrations than 25 parts per billion.)

15) Comparing lead levels, Amherst Region Middle School's 90%'ile lead level is 93

ppb (3.7 times more contaminated with lead than Flint drinking water)!

16) Fort River Elementary School's 90%'ile lead level is 54 ppb (2.1 times more

contaminated with lead than Flint drinking water)!

17) Wildwood Elementary School's 90%'ile lead level is 43 ppb (1.7 times more

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 contaminated with lead than Flint drinking water)!

18) Amherst Regional High School's 90%'ile lead level is 40 ppb (more than 1.6

times more contaminated with lead than Flint drinking water)!

19) Amherst's Southeast Campus School's 90%'ile lead level is 35 ppb (more than

1.4 times more contaminated with lead than Flint drinking water)!

20) According to a National of Institute of Health ("NIH"), Environmental Health

Report, 2009, Neurotoxic Effects and Biomarkers of Lead Exposure: A Review

(by Talia Sanders, Yiming Liu, Virginia Buchner and Paul B. Tchounwou):

Lead, a systemic toxicant affecting virtually every organ system, primarily

affects the central nervous system, particularly the developing brain.
Consequently, children are at a greater risk than adults of suffering from the
neurotoxic effects of lead. The ability of lead to pass through the blood-brain
barrier is due in large part to its ability to substitute for calcium ions. Within
the brain, lead-induced damage in the prefrontal cerebral cortex,
hippocampus, and cerebellum can lead to a variety of neurological disorders,
such as brain damage, mental retardation, behavioral problems, nerve
damage, and possibly Alzheimers disease, Parkinsons disease, and
schizophrenia. At the molecular level, lead interferes with the regulatory
action of calcium on cell functions and disrupts many intracellular biological
activities. Experimental studies have also shown that lead exposure may have
genotoxic effects, especially in the brain, bone marrow, liver, and lung cells.

21) The Massachusetts Department of Public Health made a determination

(June, 2016 Data Brief) that should shock the conscience of any responsible adult:

There is no safe level of exposure to lead and even exposure to relatively low
levels can cause severe and irreversible health effects [and] numerous
studies have documented correlations between childhood lead poisoning
and future school performance, unemployment, crime, violence and
incarceration.

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22) According to a National Center for Health Housing ("NCHH") Issue Brief:

Childhood Lead Exposure and Educational Outcomes Costs, societal costs

resulting from childhood lead-poisoning and related emotional and financial costs

to parents of children with learning disabilities (like the plaintiff in the instant

matter) is exorbitant:

Childhood lead exposure, even at low levels, remains a critical public health
issue It is also a costly disease, with recent estimates putting its price tag
at over $50 billion in a single year due to lost economic productivity
resulting from reduced cognitive potential Once a childs health or
cognition has been harmed by lead, the effects are permanent and continue
into adulthoodRecent research has found that even very low levels of lead
exposure can have a detrimental impact on a childs IQ, likelihood of having
a learning disability, educational attainment, and reading readiness at
kindergarten entry. Compared to adults, children are at greater risk their
rapidly growing minds and bodies are more susceptible to leads harmful
effectsChildren of color and children living in poverty are
disproportionately at risk.

23) Plaintiff filed his first of four written complaints with defendant Amherst

Regional School Committee on October 16, 2016:

On October 11, 2016, Acting Superintendent Mike Morris provided notice to

us parents that lead-contaminated school drinking water is "safe to drink after
using the flushing protocols" In respectful opposition, I assert Mike's
"flushing protocols" policy dangerously threatens the healthy well-being of
our children, teachers and school staff who should not have to worry about
lead contamination in school drinking water - they deserve better!..It would
be foolhardy and irresponsible for this 9-member Regional School Committee
to disregard the urgent pleas of Illinois Congressman [now U.S. Senator]
Tammy Duckworth, "Every day we delay these improvements is another day
our children's health is at risk - not just in Chicago or Flint, but across the
country. As a new mother, I won't sit on the sidelines while our children are
poisoned."

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24) Plaintiff filed his second of four written complaints with defendant Amherst

Regional School Committee on October 24, 2016:

Thanks for the excellent questions some of you have asked about my October
19, 2016 evidence-based claim that alarming high levels of lead found in
Amherst school drinking water poses a dangerous threat to our children,
teachers and school staff Lead testing data provided by Acting
Superintendent Mike Morris proves actions taken by the school department,
first at Fort River School, have not reduced any lead levels to below the still
dangerous level of 15 ppb.

Sadly, I have concluded that [school officials]are not at all willing to

engage in honest evidenced-based discussion about whether lead-
contaminated Amherst school drinking water poses a dangerous threat to our
children, teachers and school staff.

While I have no doubt as to the sincerity and desire to do the right thing
possessed by [school officials], these government officials have to date
completely failed in their efforts to reduce dangerously high lead levels found
in Amherst school drinking water. Rather, they seem engaged in a
disinformation campaign to conceal the magnitude of the dangers.

Does the fact that the above government officials' actions are controlled by
unknown financial and political considerations not constitute a conflict of
interest and limitation of vision? I ask only that these inherent hindrances be
examined by this body as you deliberate as to what level of lead-contaminated
Amherst school drinking water poses a dangerous threat to our children,
teachers and school staff

25) Plaintiff filed his third of four complaints with defendant Amherst Regional

School Committee on November 7, 2016:

I reassert my evidence-based claims made on October 19 and 24, 2016, that

Amherst School drinking water tested at all three Amherst Regional School
and all three Amherst Elementary Schools was found to be contaminated with
dangerously high concentrations of leadLead testing data further suggests
the Amherst Schools have been inadvertently providing our children lead-
contaminated drinking water and food prepared using lead-contaminated

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water for years now. Furthermore, the increased rates of Amherst children
with learning disabilities in our schools suggest the possibility that lead
ingested by our children at school caused or contributed to our children's
learning disabilities.

Therefore, as an emergency child-protective measure, I ask you to please

purchase and provide our children safe drinking water. Time is of the
essenceRespectfully, please stop poisoning our children and invest just a
little of the almost forty million dollars used to administer Amherst Schools
and purchase "SAFE" bottled water...

Although I know [school officials] mean well [School officials'] strategy

to decrease lead-levels in school drinking water using willy-nilly repairsand
an untested "flushing protocol", is a costly and child-endangering failure!

As extreme as it may sound, Dr. Hanna-Attisha's research paper, "Elevated

Blood Lead Levels in Children Associated with the Flint Drinking Water
Crisis: A spatial Analysis of Risk and Public Health Response" suggests our
crisis in Amherst, Massachusetts is distressingly very much like the crisis in
Flint:

"Water is a growing source of childhood lead exposure because of aging

infrastructureLead is a potent neurotoxin, and childhood lead poisoning has
an impact on many developmental and biological processes, most notably
intelligence, behavior and overall life achievement. With estimated societal
costs in the billions, lead poisoning has a disproportionate impact on low-
income and minority children. When one considers the irreversible, life-
altering, costly, and disparate impact of lead exposure, primary prevention is
necessary to eliminate exposure."

"Lead in drinking water is different from lead from other sources, as it

disproportionately affects developmentally vulnerable children and pregnant
mothers."

"The Flint drinking water crisis is a dramatic failure of primary

preventionThe legal safeguards and regulating bodies designed to protect
vulnerable populations from preventable lead exposure failedno identifiable
[lead level] is safe and without deleterious and irreversible health outcome
As our aging water infrastructures continue to decay, and as communities
across the nation struggle with finances and water supply sources, the

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 situation in Flint, Michigan may be a harbinger for future safe drinking-water
challenges."

26) Plaintiff filed his fourth and final complaint with defendant Amherst Regional

School Committee on January 11, 2017, and in this manner, the plaintiff exhausted

all administrative remedies prior to filing this U.S. District Court Complaint:

I have reviewed the Committee's November 29, 2016 "Water Update" in

which your experts erroneously assert Amherst school drinking water is much
less contaminated with lead than Flint's drinking water. To the contrary, first-
drawn water lead-testing data for each Amherst school taken during August-
September, 2016, provides evidence to demonstrate Amherst school drinking
water is dangerously more lead-contaminated than Flint's drinking water!

It is morally wrong and extremely costly, irresponsible and child-

endangering for the Amherst-Pelham Regional School Committee to continue
to turn a blind eye to thelead-poisoning of our children, teachers and staff.

27) At no time after the defendant AR School Committee reported it had taken

corrective action to remediate lead in school drinking water, did defendant conduct

any scientifically sound lead test in the same manner that established the original

high levels of lead in Amherst school drinking water (under DEP direction) to

prove that unsafe lead concentrations in school drinking water no longer exists.

28) Excerpts from a January 25, 2017 Hampshire Gazette article evidence plaintiff's

claims:

"Using the protocols of the Environmental Protection Agency's [EPA's] Lead

Contamination Control Act, all of the samples tested are of water that has
remained in pipes overnight, for between 8 and 18 hoursWhile many of
[the sample tests] exceeded the EPA's 15 parts per billion action level for
leadalmost all of these water outlets had negative tests for lead when water
ran for 30 seconds [when water samples were intentionally diluted in

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 violation of EPA protocols.]

"'We've done really well,' said Health and Community Service Director Julie
Federman.' After the 30-second flush, a majority of our [diluted samples]
fixtures came back fine.'"

"The fact that the state testing program for schools is voluntary is a concern
for Shutesbury resident Michael Hootstein, 'The trouble with this whole issue
is we have absolutely no federal or state laws regulating how much lead there
can be in school drinking water,' said Hootstein, a retired hydrogeologist who
added that he has represented the public interest and citizens for 25 years."

"On Jan. 11, Hootstein sent a letter to school officials, and the Amherst-
Pelham Regional School Committee, making the case that the experience in
Amherst schools shows its water samples are more [lead] contaminated than
the water in Flint'It is morally wrong and extremely costly, irresponsible
and child-endangering for the Amherst-Pelham Regional School Committee
to continue to turn a blind eye to the intentional lead-poisoning of our
children, teachers and staff,' Hootstein wrote."

"[Amherst Health Director] Federman said children under 6 and pregnant

women are most susceptible to lead poisoning, and the water consumed at
schools is likely to be just a minor portion of any lead intakeOur water
supply is safe, we have great water in Amherst."

29) A February 9, 2017 report from the 22 News I-Team (WWLP.com) likewise

evidences plaintiff's claims of Amherst Regional School Committee malfeasance:

"High levels of lead have been found in the drinking water at hundreds of
schools in MassachusettsThe Massachusetts Department of
Environmental Protection launched a voluntary program this fall to test the
drinking water at public schools for elevated levels of lead and
copperBethany Card of the [DEP] told the I-Team, a majority of those
schools had at least one sample that tested above the regulatory limits.' About
70% of the schools sampled have had either lead, or copper, or both
exceeded above the action level,' she saidLead can be especially toxic
for children."

"According to data from the DEP, out of all of the schools tested in western

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 Massachusetts between June and January, the Amherst-Pelham Regional
School District had the highest number of taps with elevated levels of
lead."

"Amherst Health and Community Service Director, Julie Federman told the
I-Team, the water in their schools isn't the problem, "It's not that there's
lead in the water, the water that enters the schools is safe. What happens
is as it goes through these fixtures; it's picking up some lead."

"The DEP said since the state's water testing program was voluntary,
schools with water samples above the regulatory limit are not required to
take action to fix the problem."

30) Whereas, defendant School Committee offers only false non-evidenced-based

assurances that lead-contaminated school water had been made safe to consume

and use, the School Committee creates danger, causes deprivations of bodily

integrity and recklessly prolongs the lead-poisoning harm suffered by all.

CAUSES OF ACTION

Count I - Violations of Plaintiff's and Other's 42 U.S.C. 1983 Due Process

Liberty Rights by Defendant Amherst Regional School Committee
31) Plaintiff incorporates and adopts each allegation contained in the preceding and

subsequent paragraphs of this Complaint, as if fully set forth herein.

32) Defendant Amherst-Pelham Regional School Committee, acting under color of

law, unilaterally violated and continues to violate, abrogate and impair,

unreasonably and without justification, plaintiff's, his grandson's and other's due

process liberty rights by arbitrarily, irrationally and knowingly providing toxic,

lead-contaminated school drinking water unfit for human use and consumption to

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 schoolchildren and adults (like the plaintiff) with knowledge that such lead-

poisoning is likely to cause foreseeable and irreparable physical, emotional and

financial harm to all.

33) Defendant School Committee maintains an arbitrary and irrational policy or

custom of deliberate indifference in the protection of children, parents (like the

plaintiff), teachers and school staff from serious and dire imminent injury caused

by lead toxicity. Defendant's unreasonable conduct has created, and continues to

create danger and violate children's and adult's rights to bodily integrity.

34) As a result of defendant School Committee's policy or custom, school and town

officials who orchestrated the Amherst School lead-poisoning cover-up knew that

such misconduct toward children, or parents, was likely to go undetected and/or

unpunished because there exists no administrative system of checks and balances

within the public school system, and no federal or state law regulating lead in

school drinking water.

35) To date, the plaintiff has been summarily deprived of any due process to seek

redress for defendant's deliberately indifferent, arbitrary and irrational deprivation

of safe, clean potable school drinking water in violation of plaintiff's procedural

due process rights.

36) In abrogation of defendant School Committee's duty to act in the best interest of

children, defendant Amherst School Committee exposed, and continues to expose

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 all their students and their parents (the plaintiff in the current matter) to toxic lead-

contaminated school drinking water unfit for human use and consumption.

37) As a result, plaintiff is deprived of his due process liberty rights in the care and

protection (in the best interest) of his child; and he is injured and damaged in his

property, personal health, physically, emotionally and economically by the

inherently dangerous activity of the aforesaid defendant AR School Committee.

Count I I - Violations of Plaintiff's & Other's Article 97 of the Massachusetts

Constitution Rights, by Defendant Amherst Regional School Committee

38) Plaintiff incorporates and adopts each allegation contained in the preceding and

subsequent paragraphs of this Complaint, as if fully set forth herein.

39) Defendant Amherst-Pelham Regional School Committee, acting under color of

law, unilaterally violated and continues to violate, abrogate and impair,

unreasonably and without justification, plaintiff's, his grandson's and other's Article

97 Massachusetts Declaration of Rights "to clean water" by arbitrarily and

irrationally providing him, his grandson and others, toxic, lead-contaminated

school drinking water unfit for human use and consumption, knowing that such

toxic water is likely to cause foreseeable and irreparable physical, emotional and

financial harm to the plaintiff, his grandson and all others.

PRAYER FOR RELIEF

WHEREFORE, plaintiff respectfully asks for the following Emergency Relief:

A) Issue an Emergency Order declaring the conduct of defendant Amherst

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Regional School Committee unconstitutional as to both Counts above.

B) Issue an Emergency Injunction compelling defendant School Committee to

provide emergency lead-free bottled drinking water and hire a plumbing

contractor to install a lead-free drinking/cooking water supply service line in

each lead-contaminated school in manner following: 1) immediately shut off all

lead-contaminated school drinking water and school kitchen water outlets where

lead is found in greater concentrations than 1 ppb; 2) install a water outlet (to be

used for testing the concentration of lead entering the school) at each school

water supply inlet; 3) install a school inlet shut-off (in series after the water

supply inlet outlet used for testing) that branches out and feeds two separate shut

offs that supply two separate school water supply service lines; 4) one line feeds

a new DEP-approved lead-filtration system installed at each school inlet which,

in turn, feeds a new lead-free water supply service line to all school kitchen

drinking and cooking water outlets; 5) at least 4 new safe lead-free "potable"

water hydration stations at "best location to access lead-free school drinking

water" intervals shall be installed into each new lead-free "potable" school water

supply service line feeding the school kitchen from the filtration system; 6) the

other water line feeds the existing school water line that supplies water for all

non-potable needs (lead-contaminated "non-potable" water may be safely used

for showering/bathing/washing, cleaning, flushing toilets, pools, sprinkler etc.).

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C) Issue an Emergency Injunction compelling defendant School Committee to

periodically perform comprehensive scientifically-sound lead-testing of school

water, consistent with testing performed by DEP in August-September, 2016.

D) Issue an Emergency Injunction compelling defendant School Committee to

perform an independent health impact assessment to determine the extent of

chronic lead-exposure and life-long impairment suffered by Amherst students

(and others), and determine how best to repair the suffering.

E) Appoint an independent Guardian Ad Litem (Court Monitor) to ensure

defendant Amherst Regional School Committee complies with the best interest

of the child standard in accordance with the proposed MA Act Ensuring Safe

Drinking Water at Schools and Early Childhood Programs (Senate Bill No.

456 and House Bill No. 3453), sponsored by 74 out of 200 members of the

Massachusetts Legislature (including the Shutesbury and Amherst

Representatives), that requires the immediate shut-off of outlets where water

contains more than one part per billion ("1 ppb") of lead as recommended

by the American Academy of Pediatrics to safeguard children.

Respectfully submitted on October 11, 2017, by

_________________________________
Michael B. Hootstein, pro se

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