Amann v. Stow

Opinion

USCA1 Opinion

September 27, 1993
                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1097 

                                RICHARD AMANN, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

                                TOWN OF STOW, ET AL.,

                                Defendants, Appellees.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Edward F. Harrington, U.S. District Judge]
                                               ___________________

                                 ____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

                                 ____________________

            Richard Amann on brief pro se.
            _____________
            Kevin  M. Hensley and  Needham and  Warren on  brief for appellee,
            _________________      ___________________
        Town of Stow.
            Christine  Hasiotis, Maynard  M.  Kirpalani  and Parker,  Coulter,
            ___________________  ______________________      _________________
        Daley & White on brief for appellee, Stow School System.
        _____________
            Myles  E. Flint,  Acting Assistant  Attorney General,  Dirk  Snel,
            _______________                                        __________
        Elizabeth  M.  Ahern,  Andrew  C.  Mergen,  Attorneys,  Department  of
        ____________________   __________________
        Justice,  Steven Neugeboren,  Attorney,  United  States  Environmental
                  _________________
        Protection Agency,  and Dianne G. Chabot,  Assistant Regional Counsel,
                                ________________
        United States Environmental Protection  Agency, on brief for appellee,
        United States.
            Scott   Harshbarger,  Attorney   General,  and  Pierce   O.  Cray,
            ___________________                             _________________
        Assistant  Attorney General,  on brief  for appellee,  Commonwealth of
        Massachusetts.

                                 ____________________

____________________

Per Curiam.    Christopher Amann  is a learning-disabled
                 __________

            child who for  several years attended public school  in Stow,

            Massachusetts.   In 1987, Christopher's  parents withdrew him

            from  the  public school  system and  sent  him to  a private

            school that  specializes in  teaching children with  learning

            disabilities.    In  1989,  the Amanns  attempted  to  obtain

            reimbursement for  the cost of the  private school placement.

            Stow responded by framing an  "individualized education plan"

            [IEP] that envisioned Christopher's return to  public school.

            The Amanns  rejected this plan  and initiated  administrative

            proceedings pursuant to the Individuals with Disabilities Act

            [IDEA],  20  U.S.C.     1415,   claiming  that  the  IEP  was

            inadequate for Christopher's needs.  To this the Amanns later

            added a claim that, regardless of the educational adequacy of

            the  IEP,  the   Stow  schools  themselves  were   physically

            inadequate because their drinking water was contaminated with

            unsafe levels  of  lead.   When the  Massachusetts Bureau  of

            Special  Education [BSEA]  declined to  give them  the relief

            they  sought, the Amanns filed  suit under both  the IDEA and

            the Safe Drinking Water Act [SDWA], 42 U.S.C.    300f et seq.
                                                                  __ ___

            It  may be convenient to  refer to this  lawsuit, which named

            both the Town of Stow and the Commonwealth of  Massachusetts,

            as Amann I.
               _______

                 The district  court dismissed the complaint  in Amann I,
                                                                 _______

            ruling (1)  that Stow's  proposed IEP  was adequate, and  (2)

that  the Amanns  had  failed to  give the  notice that  is a

            prerequisite to any suit under the SDWA.  We affirmed.  Amann
                                                                    _____

            v. Stow School System, 982 F.2d 644 (1st Cir. 1992).
               __________________

                 The Amanns returned to the BSEA in 1991, challenging the

            adequacy  of the IEP that Stow had proposed for the 1991-1992

            school year, and again complaining about the presence of lead

            in  the  public school's  water  supply.    Again,  the  BSEA

            determined  that the IEP  was adequate;  it also  ruled that,

            although the piped water  in the school contained lead,  Stow

            adequately  had  ensured  the   safety  of  its  students  by

            providing bottled water for drinking and cooking.  Again, the

            Amanns sought review  of the BSEA decision  in federal court.

            The  district court  dismissed  this lawsuit  (which we  will

            refer to  as Amann II)  on the  ground that it  had not  been
                         ________

            filed within  the 30-day limit  applicable to  IDEA suits  in

            Massachusetts.  Amann v. Stow, 991 F.2d 929 (1st Cir. 1993).
                            _____    ____

                 On the same day that they filed Amann II, the appellants
                                                 ________

            also commenced  this lawsuit under the SDWA.  Their complaint

            named  the  Town  of  Stow,  the   Stow  School  System,  the

            Commonwealth  of Massachusetts  and  the  United States,  and

            sought both  compensation and injunctive relief.   At length,

            the  district   court  granted   judgment  to  each   of  the

            defendants, and this appeal followed.

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I
                                          _

                 The Amanns'  claim against  the United States  sought an

            order directing the Environmental Protection Agency [EPA]  to

            revoke  Massachusetts'   primary  enforcement  responsibility

            under  the SDWA.    See 42  U.S.C.    300g-2  (giving  states
                                ___

            primary  enforcement  responsibility  as long  as  they  meet

            certain criteria).   However, Congress anticipated  "that the

            EPA  would  enjoy the  broadest  discretion  in reaching  the

            determination that  the primary criteria are  no longer met,"

            National Wildlife Fed'n v.  United States EPA, 980  F.2d 765,
            _______________________     _________________

            770  (D.C.Cir. 1992), and the SDWA authorizes citizens to sue

            the EPA only where the agency has failed to perform an act or

            duty which  is not  discretionary, 42 U.S.C.    300j-8(a)(2).
                           ___

            The Amanns  therefore had no  statutory authority to  sue the

            EPA and  the district  court correctly dismissed  their claim

            against the United States.

                                          II
                                          __

                 The  district court  also correctly dismissed  the claim

            against  the Commonwealth  of Massachusetts.    The complaint

            named  the  Commonwealth, not  one  of  its  officials, as  a

            defendant, and "[i]t is clear, of course, that in the absence

            of  consent a suit in which  the State . . .  is named as the

            defendant  is   proscribed   by  the   Eleventh   Amendment."

            Pennhurst State School & Hospital v. Halderman, 465  U.S. 89,
            _________________________________    _________

            100  (1984).  See also  42 U.S.C.   300j-8(a)(1) (authorizing
                          ___ ____

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citizen  suits against  a  "governmental  instrumentality  or

            agency"  only  " to  the  extent  permitted  by the  eleventh

            amendment").    We  see  no evidence  that  the  Commonwealth

            consented to suit in this case. 

                                         III
                                         ___

                 The Amanns assert  that the  Town of Stow  and the  Stow

            School  System [collectively  Stow] are  in violation  of the

            SDWA due to the presence of lead in the water supplied to the

            school.   They  also  allege that  Stow  violated the  public

            notice  provision of the SDWA.   40 C.F.R.    141.34(a).  The

            district court granted Stow's motion for summary judgment.

                 According to  EPA regulations,  the school water  supply

            system  is  not  a  "community  water  system"  but  a  "non-

            transient,  non-community water  system."   See  40 C.F.R.   
                                                        ___

            141.2 (defining both terms).   Maximum contaminant levels for

            lead applied  only to community water  systems until December

            7, 1992.   40 C.F.R.    141.11(a).  Since that  date, the EPA

            has been phasing  in a new "lead and  copper rule" which sets

            maximum  levels for  both community  and  non-community water

            systems.   The  rules are  phased in  at different  times for

            different size  systems and  began to apply  to non-community

            water  systems the  size of Stow  only on  July 1,  1993.  40

            C.F.R.    141.86(d).  As  of that date,  Stow is  required to

            monitor its water system for  a six month period in  order to

            determine  whether "the  system  exceeds the  lead or  copper

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action  level  and is  therefore  required  to implement  the

            corrosion  control treatment  requirements under  [40 C.F.R.]

            141.81."   40 C.F.R.   141.86(d)(ii).  "The lead action level

            is  exceeded if  the concentration  of lead  in more  than 10

            percent of tap water  samples collected during any monitoring

            period conducted in accordance with   141.86 is  greater than

            0.015  mg/L."   40  C.F.R.    141.80(c)(1).   A  system which

            exceeds  the lead action level is required to follow a system

            of treatment  steps which must begin "within six months after

            it   exceeds  one  of  the  action  levels."    40  C.F.R.   

            141.81(e)(1).  See  also 40 C.F.R.   141.83(a)(1)  ("A system
                           ___  ____

            exceeding the lead or copper action level shall complete lead

            and copper  source water monitoring (  141.88(b))  and make a

            treatment  recommendation  to  the State  (   141.83  (b)(1))

            within 6  months after exceeding  the lead  or copper  action

            level.").  In  other words, as we understand the regulations,

            the  only obligation  imposed now  upon Stow  as far  as lead

            contamination is  concerned is to monitor its system for lead

            presence.  No treatment  steps are required until  six months

            after the  completion of  the first monitoring  period (which

            ends on January 1, 1994).

                 The  Amanns, however,  have  not alleged  that Stow  has

            failed to monitor the  presence of lead in its  water system.

            Rather,  they  allege  that  the  system  contains  excessive

            amounts of lead.  Since we understand the school water system

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to be  not yet subject  to the maximum lead  level imposed by

            the EPA,  we find  that Stow  was entitled to  judgment as  a

            matter of law  on this  issue and that  summary judgment  was

            appropriate.  See Mattoon  v. Pittsfield, 980 F.2d 1,  7 (1st
                          ___ _______     __________

            Cir.  1992)  (SDWA allows  citizens  suits  only for  ongoing

            violations).

                 The  Amanns also  allege that  Stow violated  the public

            notification requirement contained in 40  C.F.R.   141.34(a).

            This  section requires  that the  owner of any  "water system

            shall issue notice to  persons served by the system  that may

            be affected  by lead contamination of  their drinking water."

            Subsections (b), (c)  and (d) of the  same regulation outline

            the required manner and content of the notice.  

                 Appellants concede  that permanent  signs are  posted in

            the school showing the drinking water supply to be hazardous.

            See 40 C.F.R.   141.34(b) ("For  non-transient, non-community
            ___

            water systems, notice may  be given by continuous posting.").

            Moreover,  they  have   provided  no  elaboration   in  their

            complaint,  in their  opposition  to summary  judgment or  in

            their brief as to how this notice is inadequate.  Even pro se

            plaintiffs  cannot  survive  a motion  for  summary  judgment

            unless  they refer  to some material  facts to  support their

            bare allegations.  See Fed. R. Civ. P. 56(e).
                               ___

                 The district court's judgment is affirmed.
                                                  ________

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