Acorn v. Edwards
| Decision Date | 12 January 1994 |
| Docket Number | Civ. A. No. 93-1479. |
| Citation | 842 F. Supp. 227 |
| Parties | ACORN, et al. v. Edwin EDWARDS, in his official capacity as Governor of the State of Louisiana; J. Christopher Pilley, in his official capacity as Secretary of the Louisiana Department of Health and Hospitals; and T. Jay Ray, in his official capacity as Administrator of the Safe Drinking Water Program, Louisiana Department of Health and Hospitals, Office of Public Health. |
| Court | U.S. District Court — Eastern District of Louisiana |
Nathalie M. Walker, Robert Baxter Wiygul, Sharon Carr Harrington, Sierra Club Legal Defense Fund, Inc., New Orleans, LA, for ACORN, Ass'n of Community Organizations for Reform Now, Illene Sippio, individually and as tutrix of her minor daughters, Terri Sippio and Torey Sippio, Frank Crosby, individually and as tutor of his minor son, Devin Crosby.
Emile Christian Rolfs, III, William Frank Ridlon, II, Luis Arturo Leitzelar, Breaseale, Sachse & Wilson, Baton Rouge, David Anthony Dalia, LA Office of Atty. Gen., New Orleans, LA, for Edwin Edwards, in his official capacity as Governor of State of LA, J. Christopher Pilley, in his official capacity as Secretary of LA Dept. of Health and Hospitals, T. Jay Ray, in his official capacity as Adm'r of Safe Drinking Water Program, LA Dept. of Health and Hospitals, Office of Public Health.
Before the Court is the defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction and Alternatively for Summary Judgment. Plaintiffs timely filed formal opposition to the aforesaid motion and the matter was submitted on the briefs without the necessity of any oral hearing. For the reasons hereinafter stated, defendant's Motion to Dismiss and Alternatively for Summary Judgment is DENIED.
On February 17, 1993, plaintiffs sent defendants a "Notice of Intent to Sue" letter (Plaintiff's Exhibit "12") as required by 42 U.S.C. § 300j-8, alleging violations of sections 300j-24(c) () and § 300j-24(d)(1) & (3) (). Subsequent to the receipt of the "notice to sue" letter, defendants sent schools an EPA fact sheet which identified some water coolers which are not lead free.1
On May 4, 1993, plaintiffs filed suit against the State defendants alleging, at first, only a violation of 42 U.S.C. § 300(j)-24(d)(1) & (3).2 Thereafter, plaintiffs amended their complaint to allege a violation of 42 U.S.C. § 300j-24(c), having had the opportunity to research and investigate the issue of whether state defendants' dissemination of the EPA "Fact Sheet" on April 5, 1993 constituted compliance with the LCCA.
The obvious purpose of plaintiffs' citizen suit against the State defendants is to force their compliance3 with the provisions of the Lead Contamination Control Act of 1988 (LCCA), 42 U.S.C. §§ 300j-24(c) and 300j-24(d), amending the Safe Drinking Water Act (SDWA). Specifically, plaintiffs seek an order compelling the State defendants to distribute to Louisiana Schools, as mandated, the "list of drinking water coolers which are not "lead free" published under section 300j-23(a)"4 and to establish a remedial program which is adequate to ensure that all water coolers which are not lead free and which are located in the participating schools are repaired, replaced, permanently removed, or rendered inoperable unless the cooler is tested and found not to contribute lead to drinking water.5 Considering that the timetable established by the statute requires that State institute a remedial program which would ensure that such would be accomplished by January 31, 1990, the plaintiffs apparently seek an order that would ensure the State defendants proceed with due haste to comply with the terms of the LCCA, so as to minimize the risk that their children will contract lead poisoning.
While there are no reported decisions involving the merits of a citizen suit brought under the SDWA to enforce the provisions of the LCCA, a thorough search for authorities did reveal one reported decision, Colorado Environmental Coalition v. Romer, 796 F.Supp. 457 (D.Colo.1992), wherein the district court awarded attorneys fees and costs under the citizen suit provisions of the SDWA in the amount of $21,193.50 although the case settled and resulted in a stipulated consent decree one day after suit was filed. That court concluded that plaintiff's action was the catalyst for the defendant's acquiescence and the consent decree provided the precise relief plaintiff sought in its complaint, to wit: (1) the defendants disseminate to Colorado day care centers the documents that the LCCA required it to distribute years before the suit was instituted; and (2) that the defendants establish a remedial program consistent with section 300j-24(d)(1) of the Act.
In the Colorado Environmental Coalition case, there apparently was no question that the Colorado Environmental Coalition, an environmental group seeking attorney's fees under the SDWA had standing and was entitled to compensation for time spent after filing notice of intent to sue, even though the state claimed that it had agreed to settle upon receiving such notice. The district court was of the opinion that given the state's failure to comply with the statutory requirements for nearly three years, it was reasonable for the group to prepare for full-blown litigation even in the midst of settlement negotiations that ultimately resulted in a consent decree.
The LCCA mandates that the Environmental Protection Agency ("EPA") undertake two duties: (1) "after notice and opportunity for public comment" and "usiing the best information available, ... the EPA shall publish a list of each brand and model of drinking water cooler ... which is not lead free,6 including each brand and model of drinking water cooler ... which is not lead free, including each brand and model of drinking water cooler which has a lead-lined tank."7 In compliance with section 300j-23(a) of the LCCA, the EPA published the required list of water coolers in the January 18, 1990, Federal Register. 55 Fed.Reg. 1772 (1990).
Regarding state programs, the LCCA requires that by August 1, 1989:
each State shall establish a program ... to assist educational agencies in testing for and remedying, lead contamination in drinking water from coolers and from other sources of lead contamination at schools under the jurisdiction of such agencies.... This program shall include measures for the reduction or elimination of lead contamination from those water coolers which are not lead free and which are located in schools. Such measures shall be adequate to ensure that by January 31, 1990, all such water coolers in schools under the jurisdiction of local educational agencies are repaired, replaced, permanently removed, or rendered inoperable unless the cooler is tested and found ... not to contribute lead to drinking water.8
The LCCA does not expressly impose a mandatory duty on the local educational agencies/schools to either test for or remedy lead contamination. Participation of the schools and local agencies is voluntary.9 However, when a school chooses to voluntarily participate in a state program, the statute clearly mandates that the state provide the remedial measures discussed above.
Defendants' contentions on its Motion to Dismiss/Summary Judgment are that: plaintiffs lack "standing" to pursue this matter, and that its lack of standing is sufficiently jurisdictional to require dismissal under FRCP Rule 12(b)(1); and that plaintiffs' alleged failure to comply with the notice requirements of 42 U.S.C. § 300J-8(b)10 is jurisdictional and thus, requires dismissal.
Under the SDWA, EPA regulations provide that the notice letter shall include:
40 C.F.R. § 135.12(a). As more fully explained herein below, the plaintiffs' Notice Letter complies with the requirements set forth above.
Plaintiff's 60-Day Notice Letter cites the two requirements of the LCCA that the defendants have allegedly violated, to wit:
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