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[NOT FOR PUBLICATION]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
_________________
___________________
Town of Stow.

brief for appell

Christine Hasiotis, Maynard M. Kirpalani and Parker, Coult

___________________ ______________________
______________
Daley & White on brief for appellee, Stow School System.
_____________
Myles E. Flint, Acting Assistant Attorney General, Dirk Sn
_______________
________
Elizabeth M. Ahern, Andrew C. Mergen, Attorneys, Department
____________________
__________________
Justice, Steven Neugeboren, Attorney, United States Environmen
_________________
Protection Agency, and Dianne G. Chabot, Assistant Regional Couns
________________
United States Environmental Protection Agency, on brief for appell
United States.
Scott
Harshbarger, Attorney
General, and Pierce
O. Cr
___________________
_______________
Assistant Attorney General, on brief for appellee, Commonwealth
Massachusetts.
____________________
____________________

Per Curiam.
__________
child who for

the

In 1987, Christopher's

public school

school that

is a learning-disabled

several years attended public school

Massachusetts.
from

Christopher Amann

system and

specializes in

disabilities.
reimbursement for

In

1989,

parents withdrew him

sent

him to

a private

teaching children with

the Amanns

the cost of the

Stow responded by framing an

in Stow,

attempted

learning
to

obtain

private school placement.

"individualized education plan"

[IEP] that envisioned Christopher's return to

public school.

The Amanns

administrative

rejected this plan

and initiated

proceedings pursuant to the Individuals with Disabilities Act

[IDEA],

20

U.S.C.

1415,

claiming

inadequate for Christopher's needs.

that

the

IEP

was

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
Special
they

of

lead.

Education [BSEA]

When the

Massachusetts Bureau

declined to

sought, the Amanns filed

give them

suit under both

may be convenient to

refer to this

the relief
the IDEA and

the Safe Drinking Water Act [SDWA], 42 U.S.C.

It

of

300f et seq.
__ ___

lawsuit, which named

both the Town of Stow and the Commonwealth of

Massachusetts,

as Amann I.
_______
The district
ruling (1)

court dismissed the complaint

that Stow's

proposed IEP

in Amann I,
_______

was adequate, and

(2)

that

the Amanns

had

failed to

give the

prerequisite to any suit under the SDWA.

notice that
We affirmed.

is a
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

determined

that the IEP

water

supply.

Again,

was adequate;

it also

the

ruled that,

although the piped water

in the school contained lead,

adequately

the

had

ensured

safety

of

its

students

providing bottled water for drinking and cooking.

Amanns sought review
The

district court

refer to

of the BSEA decision

dismissed

as Amann II)
________

filed within

on the

the 30-day limit

Massachusetts.

BSEA

Stow
by

Again, the

in federal court.

this lawsuit

(which we

will

ground that it

had not

been

applicable to

IDEA suits

in

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

_____
____

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

the

Town

Commonwealth
sought both
the

this lawsuit under the SDWA.

district

of

Stow,

the

of Massachusetts

Stow
and

the

Their complaint

School

System,

the

United States,

and

compensation and injunctive relief.

court

granted

judgment

defendants, and this appeal followed.

to

each

At length,
of

the

-3-

I
_
The Amanns'

claim against

the United States

sought an

order directing the Environmental Protection Agency [EPA]

revoke
under

Massachusetts'
the SDWA.

primary

See 42
___

enforcement

would

broadest

300g-2
as long

discretion

the primary criteria are

National Wildlife Fed'n v.

_______________________
770

U.S.C.

responsibility
(giving
as

states

they

However, Congress anticipated

enjoy the

determination that

enforcement

responsibility

certain criteria).
EPA

primary

to

meet

"that the

in reaching

the

no longer met,"

United States EPA, 980

_________________

F.2d 765,

(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
___

The Amanns

therefore had no

EPA and

discretionary, 42 U.S.C.

the district

300j-8(a)(2).

statutory authority to

court correctly dismissed

sue the

their claim

against the United States.

II
__
The
against
named

district court

also correctly dismissed

the Commonwealth
the

of Massachusetts.

Commonwealth, not

one

of

its

the claim

The complaint
officials, as

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

of

consent a suit in which

defendant

is

proscribed

the State . . .
by

the

is named as the

Eleventh

Amendment."

Pennhurst State School & Hospital v. Halderman, 465

_________________________________
_________
100

(1984).

See also
___ ____

42 U.S.C.

U.S. 89,

300j-8(a)(1) (authorizing

-4-

citizen

suits against

agency"

only

amendment").

" to
We

the
see

"governmental
extent

instrumentality

permitted

no evidence

that

by the
the

or

eleventh

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

notice

also

allege that

provision of the SDWA.

Stow

violated the

40 C.F.R.

public

141.34(a).

The

district court granted Stow's motion for summary judgment.

According to
system

is

not

transient,

EPA regulations,
a

"community

water

non-community water

141.2 (defining both terms).

lead applied
7, 1992.

40 C.F.R.

The

different size
water

141.86(d).

phased in

determine

whether "the

"non-

40 C.F.R.

date, the EPA

copper rule" which sets

and

non-community water

at different

only on

of that date,

monitor its water system for

systems until December

began to apply

size of Stow
As

See
___

Since that

both community

systems and

but

supply

Maximum contaminant levels for

141.11(a).

rules are

systems the

C.F.R.

system."

in a new "lead and

levels for

systems.

system"

only to community water

has been phasing

maximum

the school water

times for

to non-community
July 1,

Stow is

1993.

required to

a six month period in

system

-5-

exceeds the

40

lead or

order to
copper

action

level

and is

therefore

corrosion

control treatment

141.81."

40 C.F.R.

is

exceeded if

required

requirements under

141.86(d)(ii).

the concentration

percent of tap water

mg/L."

exceeds

40

the

[40 C.F.R.]

"The lead action level

of lead

in more

than 10

samples collected during any monitoring

period conducted in accordance with

0.015

to implement

C.F.R.

141.86 is

141.80(c)(1).

greater than

system which

the lead action level is required to follow a system

of treatment

steps which must begin "within six months after

it

one

exceeds

141.81(e)(1).

of

See
___

the

action

levels."

also 40 C.F.R.
____

40

141.83(a)(1)

C.F.R.
("A system

exceeding the lead or copper action level shall complete lead

and copper
treatment
within 6
level.").
the

source water monitoring (

recommendation

to

the State

months after exceeding

In

141.88(b))
(

the lead

and make a

141.83

(b)(1))

or copper

action

other words, as we understand the regulations,

only obligation

contamination is

imposed now

upon Stow

as far

as lead

concerned is to monitor its system for lead

presence.

No treatment

steps are required until

after the

completion of

the first monitoring

six months

period (which

ends on January 1, 1994).

The

Amanns, however,

have

not alleged

failed to monitor the

presence of lead in its

Rather,

that

they

allege

amounts of lead.

the

system

that Stow

has

water system.

contains

excessive

Since we understand the school water system

-6-

to be

not yet subject

the EPA,

we find

matter of law
appropriate.
Cir.

1992)

to the maximum lead

that Stow

on this

was entitled to

issue and that

See Mattoon
___ _______
(SDWA allows

level imposed by
judgment as

summary judgment

v. Pittsfield, 980 F.2d 1,

__________
citizens

suits

only for

a
was

7 (1st
ongoing

violations).
The

Amanns also

allege that

Stow violated

notification requirement contained in 40

This

section requires

that the

shall issue notice to

be affected

owner of any

141.34(a).
"water system

persons served by the system

by lead contamination of

Subsections (b), (c)

C.F.R.

and (d) of the

the public

that may

their drinking water."

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

water systems, notice may

non-transient, non-community

be given by continuous posting.").

Moreover,
complaint,

they

have

in their

provided
opposition

no

elaboration

to summary

unless

cannot

they refer

bare allegations.

survive

a motion

to some material

for

facts to

The district court's judgment is affirmed.

________

in

Even pro se

summary

See Fed. R. Civ. P. 56(e).

___

-7-

their

judgment or

their brief as to how this notice is inadequate.

plaintiffs

in

judgment

support their