USCA1 Opinion
September 27, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1097
RICHARD AMANN, ET AL.,
Plaintiffs, Appellants,
v.
TOWN OF STOW, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Stahl, Circuit Judges.
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Richard Amann on brief pro se.
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Kevin M. Hensley and Needham and Warren on brief for appellee,
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Town of Stow.
Christine Hasiotis, Maynard M. Kirpalani and Parker, Coulter,
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Daley & White on brief for appellee, Stow School System.
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Myles E. Flint, Acting Assistant Attorney General, Dirk Snel,
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Elizabeth M. Ahern, Andrew C. Mergen, Attorneys, Department of
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Justice, Steven Neugeboren, Attorney, United States Environmental
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Protection Agency, and Dianne G. Chabot, Assistant Regional Counsel,
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United States Environmental Protection Agency, on brief for appellee,
United States.
Scott Harshbarger, Attorney General, and Pierce O. Cray,
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Assistant Attorney General, on brief for appellee, Commonwealth of
Massachusetts.
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Per Curiam. Christopher Amann is a learning-disabled
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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.
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It may be convenient to refer to this lawsuit, which named
both the Town of Stow and the Commonwealth of Massachusetts,
as Amann I.
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The district court dismissed the complaint in Amann I,
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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
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v. Stow School System, 982 F.2d 644 (1st Cir. 1992).
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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
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filed within the 30-day limit applicable to IDEA suits in
Massachusetts. Amann v. Stow, 991 F.2d 929 (1st Cir. 1993).
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On the same day that they filed Amann II, the appellants
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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
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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
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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,
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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).
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The Amanns therefore had no statutory authority to sue the
EPA and the district court correctly dismissed their claim
against the United States.
II
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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,
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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
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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.
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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
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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
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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
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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).
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The district court's judgment is affirmed.
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