Federal judge rules in Amherst suit over lead in drinking water

  • Creatas Creatas

Staff Writer
Published: 2/12/2019 10:52:23 PM

AMHERST — A U.S. District Court judge has rejected a Shutesbury man’s legal attempt to get the Amherst-Pelham Regional School District to provide bottled water to students and install new filtration systems to ensure that people do not consume lead-tainted water in the schools.

But even though most of a civil rights complaint against the schools was dismissed by Judge Mark G. Mastroianni, plaintiff Michael Hootstein calls it a “wise, just and fair decision.”

“This is more the victory than I ever dreamed of,” Hootstein said in a phone interview Tuesday. “This is a beautiful decision.”

A retired hydrogeologist, Hootstein said it has been his mission for more than two years to get the “dangerous poison” of lead out of the drinking water that is provided to 2,500 children in the public schools.

He said he is pleased with the judge’s ruling that allows a claim that Hootstein was personally affected by exposure to the water at the schools to move forward, observing that other aspects, including a complaint that his high-school-age grandson is drinking contaminated water, could continue if he is able to hire legal counsel to represent the youth.

School Superintendent Michael Morris said Tuesday that he could not comment immediately on the lawsuit because of the winter storm, which was precluding getting information from the school’s attorney.

Previously, Morris said that the district’s actions of removing and replacing fixtures in the schools already meant that the drinking water in both the regional school buildings and the elementary schools in both Amherst and Pelham is safe for students and staff.

“Thanks to the work of our facilities department, in collaboration with the Amherst Department of Public Works, all of the drinking sources in all of our buildings now exceed the standards set by the U.S. Environmental Protection Agency and Massachusetts Department of Environmental Protection for both lead and copper,” Morris said.

The lawsuit has been active in U.S. District Court since October 2017, which came after Hootstein sent four letters to the School Committee and had extensive discussions with school and town officials. The letters were sent after the release of voluntary testing results for lead and copper under the Assistance Program for Lead in School Drinking Water.

The state’s program had the DEP and the University of Massachusetts Amherst coordinate to take water samples from 818 schools in 153 communities between April 2016 and February 2017. In Hampshire County, 21 out of 25 participating schools were found to have high levels of lead in at least one fixture, with samples testing water that had been in the pipes for eight to 18 hours.

When at least one fixture surpassed federal “action levels,” which are 15 parts per billion for lead and 1.3 parts per million for copper, schools were flagged. Statewide, 72 percent of school buildings had at least one fixture that tested high for lead or copper.

Amherst schools were among those with high levels of lead, though not copper. But almost all the tests in Amherst were negative for lead when water ran for more than 30 seconds.

High levels of lead can have negative neurological impacts on children, infants and fetuses.

Hootstein’s lawsuit, with oral arguments heard in January, claimed that not eliminating the lead from the water was a violation of children’s and parents’ bodily integrity rights under the 14th Amendment of the U.S. Constitution, and a violation of Article 97 of the amendments to the state’s Constitution, which states “people shall have the right to clean air and water… and the protection of the people in their right to the conservation, development and utilization of agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose.”

In his decision, Mastroianni wrote that Hootstein can continue to seek a preliminary injunction and proceed to an evidentiary hearing to show how he has been personally affected by the lead in the water. Because he is not an attorney, though, he cannot legally represent his grandson in court.

“The court recognizes plaintiff’s good intentions in wanting to protect his grandson and is sensitive to plaintiff’s interest in upholding his grandson’s rights. Nevertheless, the court is bound by the rule prohibiting a lay guardian from representing a minor,” Mastroianni wrote.

Mastroianni dismissed with prejudice the claim under Article 97 of the Massachusetts Constitution, and his decision references the Flint, Michigan water crisis.

Hootstein “alleged Defendant not only provides lead-contaminated water to students and parents — knowing the extreme danger this entails — but that it falsely certifies this water is safe to drink. These allegations, which the court must accept as true at this stage of the litigation, are similar to those described by the Sixth Circuit in Guertin regarding the Flint Water Crisis,” Mastroianni wrote in his ruling.

In his view, Hootstein said Amherst’s situation is little different from Flint, Michigan, where insufficient water treatment led to more than 100,000 residents being exposed to high levels of lead.

In addition to his legal action, he said there are other avenues for combating the lead in water, noting that state Sen. Jo Comerford and state Rep. Natalie Blais, whose districts both include Shutesbury, are co-sponsoring An Act for Safe Drinking Water in Schools. He also noted that Gov. Charlie Baker is pledging $30 million to help school districts tackle the health threat of lead in drinking water.

“We can bring people together on drinking water issues,” Hootstein said.

Scott Merzbach can be reached at smerzbach@gazettenet.com.

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