Petition for Writ of Certiorari — Association of Community Organizations for Reform Now v. Foster

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Supreme Court, u.s.

FILED

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') QE 174 sul 221996

NO. OFFICE OF THE CLERK

In the

Supreme Court of the United States

OCTOBER TERM, 1996

ACORN, et al.,

Petitioners,

Vv.

EDWIN EDWARDS, et al,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEAL

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Nathalie M. Walker

SIERRA CLUB LEGAL DEFENSE FUND

400 Magazine Street, Suite 401

New Orleans, Louisiana 70130

(504) 522-1394

Counsel for Petitioners

July 22, 1996

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

QUESTION PRESENTED

Whether the Fifth Circuit erred by reversing the district

court’s award of attorney’s fees to Petitioners and holding

that 42 U.S.C. § 300j-24(d), which requires states to assist

local educational agencies in testing for, and remedying, lead

contamination in drinking water at schools, violates the

Tenth Amendment.

PARTIES

ACORN, Association of Community Organizations for

Reform Now; Illene Sippio, individually and as tutrix of her

minor daughters, Terri Sippio and Torey Sippio; and Frank

Crosby, individually and as tutor of his minor son, Devin

Crosby, were appellees below and are petitioners herein.

Mike Foster (Edwin Edwards at the time suit was

originally filed), in his official capacity as Governor of the

State of Louisiana; Bobby Jindal (J. Christopher Pilley at

the time suit was originally filed), in his official capacity as

Secretary of the Louisiana Department of Health and

Hospitals; and Lovis Wales (T. Jay Ray, at the time suit was

originally filed), ir his official capacity as Administrator of

the Safe Drinking Water Program, Louisiana Department

of Health and Hospitals, Office of Public Health, were ap-

pellants below and are respondents herein.

In addition to the above parties, the United States has

intervened.

Pe ee, Tee ee VA ee ee ee ee

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .....::..ccccccccscecsscssssccesecerssccececossocc. i

ipa ctr chcpe RE EE TENSE IGA Mo ESL ee tae ATE ii

Same ie SMI iii kin iii

Se a ee oS vi

CST SOAP si eee 1

ee EERE En RTE 2

SEGRE UT SCEeN PMV ERROING sons e.no ooo oscnccsesoceeccocecocsene. 2

STATEMENT OF THE CASB................c.cccccecscoceseccesesessecoe. 2

I. The Problem of Lead Contamination.................... 3

II. The Lead Contamination Control Act of

tag Eb Bee Sa EOI Se a Chace 4

A. Federal Duties Under the LCCA............0.0...... 4

B. State Duties Under the LOCAL... ccecccecccceecs. 6

C. Louisiana’s LCCA Program............cccccccececceseses 8

III. Procedural Background...............cccccccccsesececeeeeese.. 11

TABLE OF CONTENTS (continued)

REASONS FOR GRANTING THE PETITION...............

I. The Fifth Circuit’s Holding That 42

U.S.C. § 300j-24(d) Of The LCCA

Violates The Tenth Amendment Er-

roneously Extends And Conflicts With

Tenth Amendment Jurisprudence.......................

A. Tenth Amendment

Caselaw in Goemeral.............ccccccccosccscsssececeee

B. The New York Decision In

PORE jis tein tics ee ee

Il. Because The Fifth Circuit’s Holding

Annuls An Act Of Congress, Certiorari

UR TON SIO iivisvchascsncitinsntiiesdabcstethitoeatcnscs

Ill. The Fifth Circuit’s Holding Is Clearly

Erroneous And Presents Important

Issues Meriting Review.................:ccccccceesessseeeeeees

CIR VE PLIRAD IN cevieucinni copissnvininiasantnbes neeesignicanienmumsaiaen

TABLE OF CONTENTS (continued)

APPENDIX

Appendix A -

Appendix B -

Appendix C -

Appendix D -

Appendix E -

Appendix F -

Page

Opinion of the United States Court of

Appeals for the Fifth Circuit

Dated, April 22, 1996..............0cc.scccccseee A-1

Memorandum Opinion and Order of

the United States District Court for the

Eastern District of Louisiana

Filed - November 14, 1994..........0000... A-19

United States Constitution,

re era eomtnaaae A-51

42 USC § 300j-8(DX1)............ccccceseesesees A-52

GE TFIID. F Peis esvncssscentevsssovebvnsienms A-53

42 U.S.C. §§ 300j-21 - 300j-26............ A-54

TABLE OF AUTHORITIES

CASES Page

ACORN v. Edwards, 81 F.3d 1387 (5th Cir.

re veicsins icxbadinulocsalauatghormeaaeiia tiga hata 12,13,14,15

ACORN v. Edwards, 1994 WL 634983 (E.D. La.)......12,14

Edward J. DeBartolo Corp. v. Florida Gulf

Building & Construction Trades Council,

BOG CS Bi We Spied scat cgssnccepiesksvacievbeuccscassi iba 21

EPA &. Bec, Gk Ue Oe eee ivcskintsonsicnccincoas 15

FERC v. Mississippi, 456 U.S. 742

Ci Pixacisbcicdeccecsubcaniansitibeaiceeietiobumndate nies 14,15,16,18,20,21

Fry v. United States, 421 U.S. 542 (1975)...............cc cee 15

Heckler v. Edwards, 465 U.S. 870 (1983).................000000e- 22

Mack v. United States, 66 F.3d 1025

Cee SSeS Bie teak coves scnscisinscteticcsmiethaasineccacas 19,20,21

New York v. United States,

BOS UI. 166 CDI cscscsccicserctenvetonenes 14,15,16,17,18,20

South Carolina v. Baker, 485 U.S. 505 (1988)............ 14,16

Testa v. Katt, 330 US. SOG C1G4T). ..cccccccccscccnecseDicssoncconsoses 15

United States v. Gainey, 380 U.S. 63 (19685).................... 21

United States v. Lopez, 115 S.Ct. 1624 (1998).................. 20

vii

TABLE OF AUTHORITIES (continued)

CASES Page

Walters v. National Ass’n of Radiation Sur-

vivors, 473 U.S. 305 (198B).............ccccccsccssecesceseseoeeeesse. 21

Washington v. Washington State Commer-

cial Passenger Fishing Ass’n, 443 U.S.

SW Se Mi caishintinnnch eesiiraitndintdicicicaitee sisbbs daibis, ob s 15

STATUTES

28 U.S.C. § 1252 (repealed in 1988)..0........ccccccccscssccosees 21

caxtansst Te Bee gy EON RE LLL TITLE: 2

Me IDR Ge PANS sasiscisncscntacicibiincsitcditig ic 19

OD UA BS Oishii en 11,12,13,23

De Ta. DMM sciicctinitiekidtidctiicmcncicig bes 4,5

AEs SW pnininnaicinvcecciinasininaiwi ios 4,6,19

Oe UB 8 PO Basin ici, ce 4,5,6,13,19,23

42 U.S.C. § 300j-24........... 4,5,6,7,11,13,14,15,19,23,24,25

seieBieceinsti TS Boge, FEAT PL CLONING 4

vrai heh pis Be Soins, ecg eR Se TE ONE oats Feo 4

viii

TABLE OF AUTHORITIES (continued)

Page

MISCELLANEOUS

Supreme Court Case Selections Act, Pub. L.

No. 100-352, § 1, 102 Stat. 662 (1988)... 21

OO OG, BAR RABI Ce a cccinindscsecesampsocnnsonticcicebenidinias 6

GB FOG. Tem. BTTae Ch isvecvncciscnstrvacsicnieunsssvivdeaitioss 4,5,23

RS FO. Teme, Be Ce icctctnctkbicteccicukttccssicencnigtvavicusetn’ 6

House Report No. 100-1041, reprinted in

1968 U.S.C.C.A.N. S79B-BG07 .....cccscvcescosescccccsccccessccvees 3,4

Preventing Lead Poisoning in Young

Children, Centers for Disease Control (1991)................ 3

Strategic Plan to Eliminate Childhood Lead

Poisoning, U.S. Department of Health and

Reema Ter CCG apis ctecinccnecsosadicncer iotesctcccnbciacnincenh 3

The Nature and Extent of Lead Poisoning in

Children of the United States: A Report to

Congress, Agency for Toxic Substances and

SIRUGOGS TURING Ties sccccceetinitictctabetiohccinccsiencisnesckiisavouscns 3

Lead in School Drinking Water,

Environmental Protection Agency (1989)................. 3,4,6

’

MOM 2°

ee ee Le

~~ ee

TABLE OF AUTHORITIES (continued)

Page

MISCELLANEOUS (continued)

Sidney G. Becnel, Louisiana’s Implementa-

tion of the Federal Lead Contamination and

Control Act of 1988 (1989)..0.0...ccccceccccccssseeeeeeeeeoees...... 8,23

OPH, April 1992 LCCA Implementation Report......... 10

OPH, June 1993 LCCA Implementation Report......... 10

OPH, September 1992 LCCA Implementation

sah ct IE EEE ool Sat BOONE 10

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1996

No. 96-

ACORN, et al.,

Petitioners,

Vv.

EDWIN EDWARDS, e¢ ail.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEAL

FOR THE FIFTH CIRCUIT

ACORN respectfully petitions for a writ of certiorari

to review the judgment and opinion of the United States

Court of Appeal for the Fifth Circuit in this case.

OPINIONS BELOW

The decision of the United States Court of Appeal for

the Fifth Circuit, which is reported at 81 F.3d 1387, is

reproduced in the appendix hereto at p. A-1l, infra.

The opinion and order of the United States District

Court for the Eastern District of Louisiana, which are not

reported, are reproduced in the appendix hereto at p. A-19,

infra.

JURISDICTION

The Court of Appeal for the Fifth Circuit entered its

judgment on April 22, 1996. This Court has jurisdiction pur-

suant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS

Pertinent provisions of the Safe Drinking Water Act

(“SDWA’”’) are set forth in the appendix hereto at p. A-52,

infra.

STATEMENT OF THE CASE

This case raises the issue of whether Congress may

enlist the assistance of the states in remedying the problem

of lead contamination in drinking water at our nation’s

schools, as prescribed by the Lead Contamination and Con-

trol Act of 1988 (“LCCA”’). Petitioners, Association of Com-

munity Organizations for Reform Now, and two individuals

who are members of the Association, (collectively referred

to hereafter as “ACORN””’) originally filed suit to bring Loui-

siana into compliance with the LCCA. During the pendency

of this case before the district court, reasonable improvements

were made in the state’s LCCA program, and the district

court dismissed the entire case as moot. ACORN moved for

attorney’s fees. That motion was granted by the district court,

but then reversed by the Fifth Circuit which held that the

LCCA violates the Tenth Amendment.

I. The Problem of Lead Contamination

The number one environmental problem facing

America’s young children is lead poisoning.! The latest

available data shows that in 1990 eight million children had

levels of lead in their blood high enough to cause significant

impairment to their neurological development. Fetuses and

children under age six are especially vulnerable to lead’s toxic

effects because the blood-brain barriers of their neurological

systems are still developing, and they absorb more lead in

proportion to their weight than do adults.

Children exposed to lead are six times more likely to

have a reading disability and seven times more likely not

to graduate from high school than their peers. Lead-exposed

children exhibit language deficiencies, behavioral problems,

lower class ranking and IQ, and impaired fine motor

coordination.

A primary source of children’s exposure to lead is drink-

ing water. Under normal circumstances, lead levels in ground

and surface waters are generally low. However, contamina-

tion may occur once the water enters the water distribution

system as a consequence of lead service lines or pipes, lead-

soldered joints in copper plumbing, lead-containing water

fountains and coolers, and lead-containing brass faucets and

1 General sources: Centers For Disease Control, Preventing Lead Poison-

ing in Young Children (1991), U.S. Department of Health and Human Ser-

vices, Strategic Plan to Eliminate Childhood Lead Poisoning (1992); Agency

for Toxic Substances and Disease Registry, The Nature and Extent of Lead

Poisoning in Children of the United States: A Report to Congress (1988),

House Report No. 100-1041, reprinted in 1988 U.S.C.C.A.N. 3793-3807 (and

sources cited therein); Environmental Protection Agency, Lead in School

Drinking Water 2-3 (1989).

other fixtures. This problem is compounded in schools, where

the “on-again, off-again” water use patterns — long periods

of use followed by long periods of non-use — allow lead to

leach into the water during the long periods of non-use.

II. The Lead Contamination Control Act of 1988

Recognizing the hazards of lead contamination, Con-

gress passed the Lead Contamination Control Act (“LCCA”’)

in 1988, amending the Safe Drinking Water Act (“SDWA”).

42 U.S.C. §§ 300j-21 through 300j-26. The LCCA creates a

federal-state partnership? that “provides programs intend-

ed to help reduce lead contamination in drinking water,

especially for children.” H.R. Rep. No. 100-1041 (1988),

reprinted in 1988 U.S.C.C.A.N. 3793. Specifically, these pro-

grams — federal and state — are to help schools evaluate and

respond to lead contamination in drinking water. While the

scope of the programs encompasses all sources of lead con-

tamination in school drinking water, the programs express-

ly target water coolers. See 55 Fed. Reg. 1772 (1990); 1988

U.S.C.C.A.N. 3793; Environmental Protection Agency, Lead

in School Drinking Water (1989). Indeed, the LCCA makes

the manufacture or sale of lead-containing drinking water

coolers a crime. 42 U.S.C. § 300j-23(c).

A. Federal Duties Under The LCCA

The LCCA mandates that the Environmental Protec-

tion Agency (“EPA”) undertake two non-discretionary duties.

First, the EPA is required to publish a list of water coolers

2 The entire SDWA is based on a federal-state partnership. Similarly,

educational programs and social security programs are based on a federal-

state partnership.

which are not lead free.

[Alfter notice and opportunity for public comment

..- {and using] the best information available [,]

... [EPA] shall publish a list of 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.

42 U.S.C. § 300j-23(a). As defined in the LCCA, the term “lead

free’ means:

with respect to a drinking water cooler, that each

part or component of the cooler which may come

in contact with drinking water contains not more

than 8 percent lead, except that no drinking

water cooler which contains any solder, flux, or

storage tank interior surface which may come in

contact with drinking water shall be considered

lead free if the solder, flux, or storage tank in-

terior surface contains more than 0.2 percent

lead.

42 U.S.C. § 300j-21(2). The EPA fulfilled its duty under 42

U.S.C. § 300j-23(a) by publishing a final list of coolers in the

January 18, 1990, Federal Register. 55 Fed. Reg. 1772 (1990).

Second, the LCCA mandates that the EPA “publish a

guidance document and a testing protocol to assist schools

in determining the source and degree of lead contamination

in school drinking water supplies and in remedying such con-

tamination.” 42 U.S.C. § 300j-24(b). The EPA fulfilled this

duty in January, 1989, by publishing a booklet entitled

Lead in School Drinking Water. See 54 Fed. Reg. 14316 (1989).

The LCCA also mandates that the Consumer Product

Safety Commission (“CPSC’’) issue an order requiring the

manufacturers of drinking water coolers with lead-lined

tanks (as identified by EPA) to “repair, replace, or recall and

provide a refund for such coolers... .” 42 U.S.C. § 300}-22.

The CPSC fulfilled this duty on June 1, 1990. See 55 Fed.

Reg. 22387 (1990).

B. State Duties Under The LCCA

The state’s responsibilities under the LCCA stem from

only two provisions: 42 U.S.C. §§ 300j-24(c) and 300j-24(d).

First, pursuant to 42 U.S.C. § 300j-24(c), states are to

disseminate the EPA guidance document, testing protocol,

and list of water coolers which are not lead free.

[States shall] provide for the dissemination to

local educational agencies, private nonprofit

elementry or secondary schools and to day care

centers of [EPA’s] guidance document and testing

protocol published under [section 300j-24(b)],

together with the list of drinking water coolers

published under section 300j-23(a) of this title.

42 U.S.C. § 300}-24(c).

Second, pursuant to 42 U.S.C. § 300j-24(d), states are

to set up some sort of program to assist local educational agen-

cies in remedying lead contamination problems.

Within 9 months after October 31, 1988, each

State shall establish a program... . to assist local

educational agencies in testing for and remedy-

ing, lead contamination in drinking water from

coolers and from other sources of lead contamina-

tion at schools under the jurisdiction of such

agencies.

42 U.S.C. § 300}-24(dX1). In the case of drinking water coolers,

such programs should ensure that coolers that are not lead

free will be timely removed from schools.

(Sluch program|[s] 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 within 15

months after October 31, 1988 [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.

42 U.S.C. § 300}-24(dX3).

Thus, subsection 24(c) merely requires states to

dissseminate the EPA material, and subsection 24(d) mere-

ly requires states to establish a program to assist local educa-

tional agencies with remedying lead contamination in school

drinking water. Such programs must ensure timely removal

of contaminated water coolers. Participation by schools in

the state program is voluntary.

ACORN filed suit against the state of Louisiana because

the State did not timely distribute the correct EPA list of

contaminated water coolers, and did not set up a program

that ensured timely removal of such water coolers.

C. Louisiana’s LCCA Program

The Louisiana LCCA Program is administered by the

Office of Public Health (“OPH”) (which is within the Depart-

ment of Health and Hospitals) and relies on the voluntary

participation of the schools. Sidney G. Becnel, Louisiana’s

Implementation of the Federal Lead Contamination Control

Act of 1988 (1989).

Pursuant to the program that Louisiana devised,

schools are asked to complete and return to OPH a “Lead

in Drinking Water” questionnaire if they desire to par-

ticipate. On the questionnaire, the school describes each type

of water outlet at the school (e.g., water cooler, faucet), its

physical location within the school, and its manufacturer,

model number, and serial number. OPH “enters” the infor-

mation from the questionnaires into the State’s LCCA com-

puter database. Thereafter, sample bottles are sent to the

schools so that the water from all outlets — not just water

coolers — at the schools may be tested.3

Although, after reviewing the schools’ questionneires,

OPH has serial and model numbers of water coolers located

within the schools, and thus could notify the schools of the

3 This litigation only pertains to contaminated water coolers, and does

not in any way include issues pertaining to sampling of other water outlets

at schools, which states may or may not elect to undertake. The under-

taking of such sampling by states is not a requirement of the LCCA.

presence of any water coolers that are “not lead free” —

thereby quickly and easily satisfying their obligation to have

a program that ensures timely removal of such coolers — OPH

does not do so. Instead, OPH waits until sample bottles from

all outlets are returned from schools before notifying schools

of any contamination problems. But OPH’s significant delay

in getting sample bottles to participating schools meant that

tainted water coolers identified on questionnaires un-

necessarily remained in schools for long periods of time.

For example, as of September 1993, over half of Loui-

siana’s schools and day care centers (2,001 schools) had chosen

to participate in Louisiana’s LCCA program by sending in

a completed questionnaire describing the types of drinking

water sources at their facilities. See OPH September 1993

LCCA Implementation Report.4 However, the Respondents’

own documents show that as of that same date — more than

4 years after Louisiana’s LCCA Program was implemented,

and more than 3 1/2 years after the statutory deadline for

removing tainted water coolers — water outlets in only 56%

of the participating schools had been tested. See OPH

September 1993 LCCA Implementation Report.

As the above numbers indicate, electing to wait until

all sample bottles for all outlets were turned in, rather than

sending a simple notice to schools when questionnaires were

received indicating the presence of tainted coolers, meant that

the State’s LCCA program did not ensure the timely removal

of such coolers. Respondents’ rate of testing was, at best,

4 During the pendency of this matter before the district court, Defendants

stopped preparing implementation reports after September 1993.

lethargic before ACORN took action. For example, from April

1992 to June 1993 the percentage of participating schools

tested increased by just 12.5%, while the number of par-

ticipating schools was constant (0% increase). See OPH April

1992 LCCA Implementation Report (32.5% of 2,046 par-

ticipating schools tested); OPH June 1993 LCCA Implemen-

tation Report (45% of 2,020 participating schools tested).

Assuming this rate of testing continued, testing of current-

ly participating schools would not be completed until around

June of 1998 — over 8 years beyond the deadline mandated

by the LCCA for removal of contaminated coolers.

As a direct result of ACORN’s litigation efforts, the rate

of testing increased substantially — from 52 samples per week

being tested in 1992 to 453 samples per week being tested

in the first two months of 19945 — and the State finally

distributed the correct EPA list of contaminated water

coolers. But notwithstanding this significant increase in the

amount of participating schools tested after this suit was filed,

at least 598 participating schools still had not had their drink-

ing water coolers tested as of January 1, 1994.6 Clearly,

then,

5 See OPH April 1992 LCCA Implementation Report (32.5% of par-

ticipating schools tested); OPH September 1992 LCCA Implementation

Report (34.1% of participating schools tested); OPH June 1993 LCCA Im-

plementation Report (45% of participating schools tested); OPH September

1993 LCCA Implementation Report (56% of participating schools tested).

The number of school drinking water samples that were tested by

OPH jumped from 52 samples/week (last six months of 1992) to 103

samples/week (first six months of 1993) to 195 samples/week (last six

months of 1993) to 453 samples/week (first two months of 1994).

6 During document production on January 7, 1994, Les Lemon of OPH

generated a list from the LCCA computer database that identified 598

participating schools and day care centers where drinking water coolers

were untested.

Louisiana had failed to adopt measures to:

ensure that [by January 31, 1990] all .. . water

coolers which are not lead free and which are

located in schools... are repaired, replaced, per-

manently removed, or rendered inoperable unless

the cooler is tested and found .. . not to contribute

lead to drinking water.

42 U.S.C. § 300j-24(dX3).

III. Procedural Background

On February 17, 1993, ACORN sent the State a “Notice

of Intent to Sue” letter, as required by 42 U.S.C. § 300}-8.

Less than two months after the receipt of this letter, the State

disseminated an EPA “fact. sheet” dated February 1990,

which identified certain water coolers which are not lead free.

On May 4, 1993, ACORN filed a complaint against the

State for failing to design an appropriate program to ensure

timely removal of contaminated water coolers, as required

by 42 U.S.C. § 300j-24(d). ACORN later amended its com-

plaint to encompass a violation of 42 U.S.C. § 300}-24(c) as

well, asserting that the State should have disseminated the

January 19290 list of contaminated water coolers published

in the Federal] Register, not the February 1990 EPA fact

sheet.

The State then moved for dismissal for lack of subject

matter jurisdiction or for summary judgment in the alter-

native. The State argued that ACORN did not have standing

and that ACORN did not give the notice required under 42

U.S.C. § 300j-8(bX1). The district court denied the motion.

A motion by the State for reconsideration was also denied.

The State then filed a motion to certify constitutional ques-

tions to the Attorney General of the United States. The

district court denied the motion.

On May 16, 1994, the State filed yet another summary

judgment motion (which was untimely pursuant to the

district court’s minute entry setting various deadlines for the

case). Having decided at this point that Louisiana had been

spurred by the lawsuit into taking reasonable action, ACORN

sent a motion to the State for voluntary dismissal on May

31, 1994. The State refused to sign. Later, however, after a

conference call in which ACORN expressed “no objection to

the dismissal of its suit as moot,” the district court granted

the State’s summary judgment motion, dismissing all claims

as moot, but expressly reserving the parties’ rights to litigate

the issue of attorney’s fees.

ACORN then filed a motion for attorney’s fees and ex-

penses pursuant to 42 U.S.C. § 300j-8(d). The district court

granted the motion and awarded ACORN $41,181.25. (Ap-

pendix, A-20; 1994 WL 634983 at 1). Specifically, the district

court found that the goals of ACORN’s lawsuit were achiev-

ed and that the lawsuit was a “significant catalyst or a

substantial factor behind the altered government action.”

(Appendix, A-23 - 24; 1994 WL 634983 at 3).

The State appealed to the United States Court of Ap-

peal for the Fifth Circuit, where, at oral argument, the panel

inquired as to the constitutionality of the LCCA and ordered

supplemental briefing on that issue. (Appendix, A-12; 81 F.3d

at 1391). The Fifth Circuit certified to the Attorney General

that the constitutionality of an Act of Congress was

drawn into question, and on October 5, 1995, the United

States’ motion to intervene was granted. Id.

After wading through the “morass” of the State’s

numerous alleged errors, (Appendix, A-8; 81 F.3d at 1390)

the Fifth Circuit reversed the district court’s award of at-

torney’s fees to ACORN. The Fifth Circuit reasoned that

under 42 U.S.C. § 300j-8(a),(d) a district court may only award

attorney’s fees in suits brought for violations of lawful re-

quirements of the SDWA, and that no violations of lawful

requirements under the LCCA had occurred.

First, with respect to 42 U.S.C. § 300)j-24(c) (requiring

dissemination of the list of contaminated coolers), the Fifth

Circuit ruled that there was no violation of this provision

by concluding that the verb “publish” in 42 U.S.C. §§

300j-23(a) and 24(c) does not require publication of the list

of contaminated coolers in the Federal Register. (Appendix,

A-8 - 11; 81 F.3d at 1391-92). As a result, the State’s

dissemination of the EPA fact sheet listing contaminated

coolers, rather than the Federal Register list, was deemed

satisfaction of the requirements of 42 U.S.C. § 300j-24(c).7

Thus, the Fifth Circuit did not reach the question of the con-

stitutionality of this provision. ACORN asserts both that

7 As set forth at 23, n. 14 herein, infra, the court of appeal erred in mak-

ing this finding. The clear language of the LCCA requires distribution

of the water cooler list published in the Federal Register. See 42 U.S.C.

$$ 300}-23(a) and 300j-24(c). Furthermore, the fact sheet that the State

distributed contained erroneous information and, unlike the Federal

sumers, and did not include other additional information and an advisory

— with a toll free number — regarding Halsey Taylor water coolers that

have lead-lined tanks.

the state of Louisiana did violate this provision,® and that

this provision is constitutional.?

Second, with respect to 42 U.S.C. § 300j-24(d) (requir-

ing a program to ensure timely removal of contaminated

water coolers), the Fifth Circuit found that the provision falls

“squarely within the ambit of New York,”!° and declared

the provision unconstitutional. (Appendix, A-16 - 17; 81 F.3d

at 1394-95). ACORN assserts that this provision of the LCCA

does not fall squarely within the holding of New York, and

thus is constitutional.

REASONS FOR GRANTING THE WRIT

I. The Fifth Circuit’s Holding That 42 U.S.C. §

300j-24(d) Of The LCCA Violates The Tenth

Amendment Erroneously Extends and Conflicts

with Tenth Amendment Jurisprudence

By declaring 42 U.S.C. § 300j-24(d) of the LCCA

8 The district court shared ACORN‘s opinion that the LCCA requires

states to distribute the Federal Register list of coolers, not the EPA fact

sheet. “On February 21, 1994 the defendants [finally] discharged their

duties under 42 U.S.C. § 300j-24(c) and sent the required Federal Register

list, thereby fulfilling one of the two goals sought by plaintiffs.”

(Appendix, A-24; 1994 Westiaw 634983 at 3).

9 Tenth Amendment jurisprudence, discussed at pages 15 - 21 herein, in-

fra, precludes a finding that simply imposing responsibility on states to

distribute a federally generated document constitutes an invasion of the

province of state sovereignty protected by the Tenth Amendment. As noted

in FERC v. Mississippi, 456 U.S. 742, 762 (1982), the Supreme Court has

upheld a variety of federal laws that impose requirements on states to

engage in reasonable administrative action. Further, in an even more re-

cent case, the Court held that no Tenth Amendment problem exists even

where a state must devote “substantial effort{s]” to implementing the

federal requirement. South Carolina v. Baker, 485 U.S. 505, 514-15 (1988).

In short, unless a federal statute enlists the aid of state employees in a

clearly burdensome fashion, there is no Tenth Amendment problem.

10 New York v. United States, 505 U.S. 144 (1992).

unconstitutional, the Fifth Circuit has erroneously broadened

the scope of New York v. United States, 505 U.S. 144 (1992),

and has failed to reconcile its decision with other Supreme

Court decisions pertaining to the Tenth Amendment.

Hyperbolically categorizing section 300j-24(d) of the

LCCA as “Congressional conscription of state legislative

functions,” the Fifth Circuit held that section 300j-24(d) is

“clearly prohibited under New York’s interpretation of the

limits imposed upon Congress by the Tenth Amendment.”

(Appendix, A-16; 81 F3d at 1394.) However, section 300)j-24(d)

in no way amounts to the kind of excessive burden on a state

which Supreme Court caselaw has found violative of the

Tenth Amendment.

A. Tenth Amendment Caselaw In General

The Supreme Court has long recognized that the Tenth

Amendment is not violated every time the federal govern-

ment requires state assistance in implementing federal law.

In FERC v. Mississippi, 456 U.S. 742 (1982), the Court observ-

ed that “[wJhile this Court never has sanctioned explicitly

a federal command to the States to promulgate and enforce

laws and regulations, there are instances where the Court

has upheld federal statutory structures that in effect directed

state decisionmakers to take or to refrain from taking cer-

tain actions.” FERC, 456 U.S. at 761-62 (emphasis added)

(citing EPA v. Brown, 431 U.S. 99 (1977); Fry v. United States,

421 U.S. 542 (1975); Washington v. Washington State Com-

mercial Passenger Fishing Ass’n, 443 U.S. 658 ( 1979); Testa

v. Katt, 330 U.S. 386 (1947)).

als

The FERC Court upheld a directive to states that was

far more intrusive and non-discretionary than the LCCA’s

direction to disseminate EPA materials and to ensure that

contaminated water coolers are timely removed from schools.

FERC involved, inter alia, a statutory requirement!! that

compelled states to “implement” FERC rules designed to en-

courage power production at small plants. 456 U.S. at 759.

Several years after the FERC decision, the Court noted that

no Tenth Amendment problem exists even where a state must

devote “substantial effort[s]” to implementing the federal re-

quirement. South Carolina v. Baker, 485 U.S. 505, 514-15

(1988).

B. The New York Decision In Particular

Nothing in the New York decision alters the basic

understanding that Congress may require assistance from

states in implementing federal law. In New York, the

Supreme Court faced a challenge by the state of New York

and two of its counties to three provisions of the Low-Level

Radioactive Waste Policy Act. All three provisions imposed

significant burdens on the State, but only one provision was

found unconstitutional under the Tenth Amendment.

The offending provision required a state to either pro-

vide for the disposal of all low-level radioactive waste

generated within the State by 1996 or take title to the waste

at that time. The first of these alternatives, the Court

11 Section 210 of the Public Regulatory Policies Act.

emphasized, was a “command [to] state government to enact

state regulation.” New York, 505 U.S. at 178 (emphasis add-

ed) (citations omitted). The directive thus clashed with the

constitutional rule that Congress itself must “legislate” in

furtherance of a federal interest and thus may not “conscript”

states to legislate for it. Id. The second alternative — that

the states actually take title to the radioactive waste — was

fatally flawed for the same reason. Id. at 176. Accordingly,

the Court’s explicit holding in New York was that both

statutory alternatives were unconstitutional because either

way, the Act “ ‘commandeers’ the states’ legislative processes

‘by directly compelling them to enact and enforce a federal

regulatory program.’ ” Id. at 176 (emphasis added; (citation

omitted).

Throughout New York the Court emphasized the con-

stitutional problems that arise when Congress declines to

enact a federal legislative solution and instead commands

that states “enact and enforce” their own schemes. This kind

of buck-passing, the Court explained, violates the Framer’s

constitutional design because it allows federal officials to

avoid responsibility for politically controversial decisions.

“Accountability is... diminished when, due to federal

coercion, elected state officials cannot regulate in accordance

with the view of the local electorate in matters not pre-empted

by federal regulation.“ 505 U.S. at 168. Thus, New York holds

that the federal government may not diminish accountability

in this way by “commandeering” the state’s political

processes,

Again and again, the authority cited by the New York

Court speaks in terms of lawmaking or regulations: “{The

Hodel Court] upheld the Surface Mining Control and

Reclamation Act of 1977 precisely because it did not “‘com-

mandeer”’ the states into regulating mining.” New York, Id.

at 161 (emphasis added). “(In FERC v. Mississippi] the Court

observed that ‘this Court never has sanctioned explicitly a

federal command to the States to promulgate and enforce

laws and regulations.’ ” Id. at 161 (emphasis added) (quoting

FERC, 456 U.S. 742, 761-62 (1982). “As in Hodel, the [FERC]

Court upheld the statute at issue .. . [because there was

nothing in it] ‘directly compelling’ the States to enact a

legislative program.” New York, 505 U.S. at 162 (emphasis

added) (quoting FERC, 456 U.S. at 765).

But in stark contrast to the situation involved in the

New York decision, in dealing with lead contaminated water

coolers, the federal government has not declined to enact a

federal legislative solution, and has not commandeered

states’ political processes to require states to “enact and en-

force” a solution. The federal government has devised ap-

propriate legislation to deal with such coolers, and that

legislation requires very minimal assistance from states. Fur-

ther, under the LCCA, federal officials have not sought to

avoid responsibility for any politically controversial decisions,

such as a decision about how to dispose of low-level radioac-

tive waste, as was the situation in New York.

There can be no question that the law invalidated in

New York was a “command [to] state government to enact

state regulation” to deal with the problems of radioactive

waste disposal.12 New York, 505 U.S. at 178. The statute

12 ‘The “take title” provision involved in New York compelled states to

regulate in the field of radioactive waste, whereas 42 U.S.C. § 300)j-24(d)

does not require that states either “regulate” or “legislate” with regard

in the New York case controversial policy choices on to the

_ States and thus violated fundamental] principles of political

accountability. See Mack v. United States, 66 F.3d 1025, 1030

(9th Cir. 1995). The provisions of the LCCA that impose

minimal responsibility on the states suffer none of these

defects. The LCCA itself presents a Congressional solution

to the problems posed by lead contaminated water coolers.

It requires EPA to prepare a guidance document and testing

protocol aimed at helping local educational agencies deter-

mine the source and degree of lead contamination in their

drinking water. It also requires EPA to prepare a list of water

coolers that have lead tanks or are otherwise not lead-free.

42 U.S.C. § 300j-23. It provides that coolers on the list that

have lead-lined tanks are to be considered “imminently

hazardous” under section 12 of the Consumer Product Safe-

ty Act, and requires the Consumer Product Safety Commis-

sion to order the repair, replacement, or recall and refund

for such coolers. 42 U.S.C. § 300j-22.

For their part, the states are only required to

disserninate the EPA materials, and have some mechanism

for ensuring that contaminated coolers are timely removed.

The states are not required to decide which water coolers are

suspect or pass legislation to regulate water coolers and/or

their manufacturers; the federal government does that. And

the LCCA does not impose anything like the offending

burdens in New York; for example, in no instance does the

LCCA force a state to “take title” to water coolers that are

not lead free, or to be liable for damages such as those suf-

fered by the many children otherwise exposed to lead con-

footnote 12 continued

w lead contamination. Compare 42 U.S.C. $§ 2021b-2021j, with 42 U.S.C.

$ 300)-24.

taminated water. And finally, pursuant to the LCCA, states

“are not even being asked to produce a state policy, for which

the state must bear political accountability.” Mack, 66 F.3d

at 1031. Thus, the central sovereign powers of states —

legislation and regulation — simply have not been com-

mandeered by the LCCA’s requirement that states offer

limited assistance in dealing with the problem of con-

taminated coolers in schools.

In short, the Court’s analysis in New York does not

establish an absolute bar against any federal requirement

that state officials implement national policy. Significant-

ly, the Court neither disavowed its prior recognition that the

federal government may “direct state decisionmakers to take

or to refrain from taking certain actions” (FERC, 456 U.S.

at 762), nor overruled previous decisions recognizing that

various mandates to state officials pass constitutional muster.

If the New York Court had intended to erect an absolute

bar to federal mandates that states take action, its searching

analysis of the problems presented by the statute at issue

would have been superfluous. After announcing such a new

rule in New York, the Court would have overruled its prior,

directly conflicting decisions, and then disposed of the case

in short shrift. The Court did neither of those things.

New York simply stands for the proposition that the

“etiquette of federalism [is] violated where there is a ‘formal

command from the National Government directing a State

to enact a certain policy.’ ‘‘ United States v. Lopez, 115 S. Ct.

1624, 1642 (1995) (Kennedy, J., concurring, joined by O‘Con-

nor, J.). As the Ninth Circuit recently concluded, “New York

. is best read as a case that draws a line already

partly delineated in [other cases such as FERC]: the federal

government is not entitled to coerce states into legislating

or regulating according to the dictates of the federal govern-

ment.” Mack, 66 F.3d at 1030. However, New York casts no

shadow on the well-established principle that the state may

be called upon to assist in the implementation of federal law.

II. Because The Fifth Circuit’s Holding Annuls

An Act Of Congress, Certiorari Should Be

Granted

Declaring an Act of Congress unconstitutional is a

“grave” matter. Walters v. National Ass’n of Radiation Sur-

vivors, 473 U.S. 305, 319 (1985); United States v. Gainey, 380

U.S. 63, 65 (1965). Such an annulment of a statute is to be

avoided wherever possible. “(WJhere an otherwise acceptable

construction of a statute would raise serious constitutional

problems, the Court will construe the statute to avoid such

problems unless such construction is plainly contrary to the

intent of Congress.” Edward J. DeBartolo Corp. v. Florida

Gulf Coast Building & Construction Trades Council, 485 U.S.

568, 575 (1988). It is the serious nature of such an annul-

ment that has caused this Court to grant certiorari in the

past.13 See Gainey, 380 U.S. at 65 (certiorari granted “to

13 Until the repeal of 28 U.S.C. § 1252 in 1988, a petitioner was guaranteed

an appeal to the Supreme Court from any federal court, including the

district courts, if the lower court declared a federal statute unconstitu-

tional and the United States or a federal agency was a party in the ac-

tion. However, pursuant to the Supreme Court Case Selections Act, Pub.

L.No. 100-352, § 1, 102 Stat. 662 (1988), virtually all of this Court’s man-

datory jurisdiction was eliminated, including jurisdiction under 28 U.S.C.

§ 1252 to hear cases wherein a federal statute was declared unconstitu-

tional. Nevertheless, the underlying presumption of 28 U.S.C. § 1252 —

namely, that declaring a federal statute unconstitutional is an issue of

grave importance — remains valid.

review the exercise of the grave power of annulling an Act

of Congress’); Heckler v. Edwards, 465 U.S. 870, 882

(“declarations of unconstitutionality have ramifications

beyond the interests of litigants in the particular case’’).

The importance of the particular Act of Congress at

issue in this litigation, the LCCA, further warrants the gran-

ting of certiorari. As previously discussed, lead poisoning is

the number one environmental problem facing America’s

young children. It causes brain damage. Children under age

six are especially vulnerable to lead’s toxic effects because

their neurological system is still developing, and they absorb

more lead in proportion to their weight than do adults. Ac-

cordingly, the LCCA includes day care centers as well as

schools in its coverage, in order to reach the most vulnerable

— the very youngest children.

The LCCA is a key part of the effort to protect our

children from lead poisoning. As a result of the LCCA,

cooperative programs have been established between the

federal government and the states to reduce the risk of lead

contamination from drinking water coolers and other sources

at schools. Without these programs, eliminating lead con-

tamination in schools and day care centers may very well

grind to a halt — as Louisiana’s sluggish efforts before this

suit was filed have amply demonstrated. Nothing less than

the health of this nation’s children is at stake.

In short, given the grave nature of the Fifth Circuit’s

holding, this Court should grant certiorari.

Il. The Fifth Cicuit’s Holding Is Clearly Er-

roneous And Presents Important Issues

Meriting Review

By declaring 42 U.S.C. § 300j-24(d) of the LCCA un-

constitutional, the Fifth Circuit reached an erroneous deci-

sion in this case. That is, the Fifth Circuit decided to reverse

the district court’s award of attorney’s fees and expenses to

ACORN, when in fact the award should have been sustain-

ed. The Fifth Circuit reasoned: “[Blecause ACORN has fail-

ed to establish that Defendants were in violation of any lawful

requirement of the LCCA at the time it commenced this suit,

the district court’s award of attorney’s fees to ACORN under

§ 300j-8(d) was improper.” (Appendix, A-18; 81 F.3d at 1395),

However, pursuant to the relevant jurisprudence cited herein,

42 U.S.C. § 300j-24(d) does not violate the Tenth Amendment,

contrary to the opinion of the Fifth Circuit. Thus, the State

was in fact violating a “lawful requirement” at the time this

suit was commenced, and the district court’s award of at-

torney’s fees and expenses should have been affirmed.14

14 It should be noted that, alternatively, the court of appeals also erred

by rejecting ACORN’s argument that under $$ 300)j-23(a) and 24(c) it was

insufficient for the State to publish the EPA fact sheet, rather than the

EPA “final list.” See A-7 supra. 42 U.S.C. § 300}j-24(c) requires the State

to “publish for the dissemination [to schools] . . . the list of drinking water

coolers published under section 300)-23(a) of this title.” (emphasis added)

Section 300j-23(a) requires that EPA “after notice and opportunity

for public comment” and “usling] the best information available... shall

publish a list of each brand and model of drinking cooler [which is not

lead free). . . [and] shall separately identify each brand and model of cooler

which has a lead-lined tank.”

When the EPA published the final list of coolers in the January 18,

1990 Federal Register, it expressly acknowledged that it was discharg-

ing its duties under section 300}-2%a). Specifically, in that Federal Register,

EPA stated that “[the] final list of water coolers with lead-lined tanks”

was “issued pursuant to the Lead Contamination Control Act of 1988

.. . Section 1463 [codified at 42 U.S.C. § 300j-23(a)).” 55 Fed. Reg. 1772

(1990).

Therefore, by the clear language of 42 U.S.C. 8§ 300j-24(c) and

300j-24(a), and 55 Fed. Reg. 1772 (1990), the State had a duty imposed

After what the district court described as a “long, ar-

duous legal battle” which ACORN was forced to bring

because the State’s efforts to address lead contaminated

coolers were “less than vigilant,”!5 this Court should grant

certiorari in order to correct the Fifth Circuit’s error.

footnote 14 continued

by law to disseminate the list of coolers published on January 18, 1990

in the Federal Register. By not recognizing this duty, the court of appeals

erred in failing to find that the State violated this provision and that

ACORN is entitled to attorney’s fees incurred in pursuing its § 300j-24(c)

claim.

15 Appendix, A-19; 1994 WL 634983, at 1.

CONCLUSION

The Fifth Circuit’s holding that 42 U.S.C. § 300j-24(d)

of the LCCA violates the Tenth Amendment erroneously ex-

tends and conflicts with Tenth Amendment jurisprudence.

This erroneous annulment of an important Act of Congress,

which was designed to protect the children of this country

from lead poisoning, must be reversed. Accordingly, Peti-

tioners submit that this Court should grant a writ of

certiorari.

Respectfully submitted,

Nathalie M. Walker

SIERRA CLUB LEGAL DEFENSE FUND

400 Magazine Street, Suite 401

New Orleans, Louisiana 70130

(504) 522-1394

Counsel for Petitioners

A-l

APPENDIX A

OPINION OF THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

DATED APRIL 22, 1996

ACORN, Association 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, Plaintiffs-Appellees,

Vv.

Edwin EDWARDS, In his official capacity as Governor

of Louisiana; J. Christopher Pilley, In his official capaci-

ty as Secretary of the Louisiana Department of Health and

Hospitals; T. Jay Ray, In his official capacity as Ad-

ministrator of the Safe Drinking Water Program, Loui-

siana Department of Health and Hospitals, Office of Public

Health, Defendants-Appellants.

No. 94-30714.

United States Court of Appeals,

Fifth Circuit.

April 22, 1996.

Before GARWOOD, DUHE’ and PARKER, Circuit

Judges.

DUHE’, Circuit Judge:

A public interest group and two concerned parents sued

Louisiana state executive officials, in their capacities, to force

the State into compliance with the Lead Contamination Con-

trol Act of 1988, Pub.L. No. 100-572, 102 Stat. 2884 (codified

A-2

in relevant part at 42 U.S.C. §§ 300j-21 to 300j-26). After the

suit was dismissed as moot, the Plaintiffs successfully mov-

ed for attorney’s fees. The Defendant state officials appeal-

ed the award. Because we agree that the Plaintiffs failed to

allege a violation of the lawful requirement of the Act, and

thus no basis for an award of attorney’s fees exists, we reverse

and render judgment dismissing the claim for attorney’s fees.

I. The Lead Contamination

Control Act of 1988

In response to concerns that the nation’s children were

being exposed to unsafe levels of lead in their drinking water,

Congress passed the Lead Contamination Control Act of 1988

(“LCCA”). H.R.Rep. No. 1041, 100th Cong., 2d Sess. at 6-8

(1988), reprinted in 1988 U.S.C.C.A.N. 3793, 3793-95. The

LCCA amended the Safe Drinking Water Act (“SDWA”) to

target what Congress perceived was a significant source of

such lead contamination—electric drinking water coolers con-

taining lead solder or lead-lined water tanks located in

schools. Id. at 7, reprinted in 1988 U.S.C.C.A.N. at 3794-95.

Under the LCCA, the Administrator of the Environmental

Protection Agency and the States share responsibility for

remedying this problem.

The Administrator is required to identify each brand

and model of drinking water cooler which is not lead free,

including each brand and model that has a lead-lined tank.

42 U.S.C. § 300j-23(a). A list of the identified drinking water

coolers must then be published, subject to the Administrator’s

continuing duty to update the list as new information

becomes available. Jd. The Administrator is also required

1 An drinking water coolers identified on this list as having a lead-lined

tank are considered to be imminently hazardous under the Consumer Pro-

duct Safety Act, 15 U.S.C. § 2051 et. seq., and the manufacturer and im-

porter of such coolers is required to repair, replace, or recall and provide

A-3

to distribute to the States tl.e list of non-lead free drinking

water coolers, as well as to publish a guidance document and

testing protocol aimed at helping local educational agencies,

schools, and day care centers determine the source and degree

of lead contamination in their drinking water systems and

remedy such contamination. 42 U.S.C. § 300j-24(a)-b).

The States’ responsibilities under the LCCA stem from

only two provisions. Section 300j-24(c) provides that “feJach

State shall provide for the dissemination to local educational

agencies, private nonprofit elementary or secondary schools

and to day care centers of the guidance document and testing

protocal published [by the Administrator], together with the

list of drinking water coolers published under section

300j-23(a) of this title.” 42 U.S.C. § 300j-24(c). Further,

§ 300j-24(d) requires States to establish remedial action pro-

grams for the removal of lead contaminants from school

drinking water systems. More particularly, this section

states:

(d) Remedial action program

(1) Testing and removing lead contamination

Within 9 months after October 31, 1988, each State

shall establish a program, consistant with this section,

to assist local 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.

* * * * * *

(footnote 1 continued)

a refund for the coolers by a date specified in the LCCA. 42 U.S.C. § 300}-22.

Additionally, the LCCA provides criminal and civil penalties for any per-

son who sells in interstate commerce, or manufactures for sale in interstate

commerce, any drinking water cooler listed, or any other drinking water

cooler that is not lead free. 42 U.S.C. § 300}-23(b)(d).

A-4

(3) Coolers

In the case of drinking water coolers, such program

shall include measures for the reduction or elimination

of lead contamination from those water coolers which

are lacated in schools. Such measures shall be adequate

to ensure that within 15 months after October 31, 1988,

all such water coolers in schools under the jurisdiction

of such agencies are repaired, replaced, permanently

removed, or rendered inoperable unless the cooler is

tested and found (within the limits of testing accuracy)

not to contribute lead to drinking water.

Section 300j-25 provides that the Administrator shall make

grants to the States to assist them in complying with these

mandates.?

Finally, § 300j-8 of the SDWA provides a mechanism

by which “any person may commence a civil action on his

own behalf” to force the Administrator and the States to carry

out the mandates of the LCCA.

II. Procedural Background

Pursuant to the citizen’s suit provision of the SDWA

(42 U.S.C. § 300j-8), the Association of Community Organiza-

2 Section 300j-25(a) mandates that the Administrator “shall make grants

to States to establish and carry out State programs under section 300j-24.”

Section 300j-25(c) authorizes Congress to appropriate $30,000,000 for each

fiscal year from 1989 to 1991 to fund the Administrator’s efforts. No such

appropriations, however, have been made by Congress, and the Ad-

ministrator has not awarded any grants to the States pursuant to its

authorization.

A-5

tions for Reform Now (“ACORN”) sent a “Notice of Intent

to File Suit” letter to Louisiana’s Governor; its Secretary of

the Department of Health and Hospitals; and the Ad-

ministrator of the Safe Drinking Water Program of the Loui-

siana Department of Health and Hospitals. Therein, ACORN

alleged violations of § 300j-24(c) (failure to disseminate the

EPA list of non-lead free drinking water coolers) and §

300j-24(d)4 (failure to establish a remedial action program).

After receiving this letter, the Department of Health and

Hospitals distributed to local educational agencies, schools,

and day care centers an EPA Fact Sheet that listed non-lead

free drinking water coolers identified as of February 1990.

Thereafter, ACORNS sued these officials in their of-

ficial capacities (hereinafter “Defendants”), alleging only that

Defendants had failed to establish a remedial action program

5 ‘The letter was sent by the Sierra Club Legal Defense Fund, Inc., on behalf

of ACORN and “the children of Frank and Sheryl! Crosby, the children

of Ilene D. Sippio, and a class of all other similarly situated children in

Louisiana.”

4 ACORN's letter, in fact, alleged violation of subsections (€X1) and (aX3)

only. Accordingly, to simplify our task, we will refer to these two subsec-

tions collectively as § 300j-24(d). Subsection(dX2), which is not at issue and

thus is excluded from our discussion and conclusions, provides:

A copy of the results of any testing under paragraph (1) shall

be available in the administrative offices of the local educational!

agency for inspection by the public, including teachers, other school

personnel, and parents. The local educational agency shall notify

parent, teacher, and employee organizations of the availability of

such testing results.

5 Suit was actually filed on behalf of ACORN, Ilene Sippio, individually

and as the natural tutrix of her minor daughters, and Frank Crosby, in-

dividually and as the natural tutor of his minor son. Sippio and Crosby

are parents of children attending schools that did not receive the EPA

list timely and that employ drinking water coolers contained on the list.

For simplicity, these plaintiffs will be referred to throughout the opinion

collectively as “ACORN.”

as required by § 300j-24(d), and seeking declaratory and in-

junctive relief. After concluding that distribution of the EPA

Fact Sheet instead of the final list of non-lead free drinking

water coolers published by the EPA in the January 18, 1990

Federal Register did not satisfy § 300j-24(c), ACORN amend-

ed its complaint to add a cause of action for violation of this

provision of the LCCA.

Defendants moved for dismissal for lack of subject mat-

ter jurisdiction or, alternatively, summary judgment. Defen-

dants claimed that ACORN did not give the notice required

under § 300j-8(bX1) and that ACORN, the organization, lack-

ed standing. The district court denied Defendants’ motion.®

ACORN v. Edwards, 842 F.Supp. 227 (E.D.La.1993).

Thereafter, Defendants answered ACORN’s complaint

reasserting inadequate notice and lack of subject matter

jurisdiction, and alleging that ACORN’s claims were barred

by the Eleventh Amendment, that ACORN failed to join cer-

tain indispensable parties—i.e., the EPA and local educa-

tional agencies, and that the provisions of the LCCA at issue

are unconstitutional. Defendants filed a Motion to Certify

Constitutional Questions to the Attorney General of the

United States.

ACORN moved for summary judgment on the issue that

Defendants were in violation of § 300j-24(dX3). Defendants

then filed their own summary judgment motion seeking

dismissal of all claims, or alternatively the claims of the in-

dividual plaintiffs and the § 300j-24(c) claim. The district

court denied ACORN’s summary judgment motion and

Defendants’ motion to certify the constitutional questions.

6 The district court also denied Defendants’ rrotion seeking reconsidera-

tion. ACORN, 842 F.Supp. at 235.

A-7

Later, however, the district court, after a telephone status

conference with all parties, granted Defendants’ motion for

summary judgment and dismissed all claims as moot.” The

district court’s ruling specifically reserved the parties’ rights

to litigate whether attorney’s fees may be due.

ACORN then moved for an award of attorney’s fees and

other expenses pursuant to § 300j-8(d).8 Defendants oppos-

ed this motion on numerous grounds; most notably that the

provisions of the LCCA sought to be enforced are unconstitu-

tional. The district court reaffirmed that all claims in this

suit were dismissed as moot and ordered Defendants to pay

attorney’s fees and expenses of $41,181.25 to ACORN for pay-

ment by it in the same amount to its attorneys. Defendants

timely appealed.

7 The record indicates that ACORN submitted to Defendants a motion

to dismiss under Federal Rule of Civil Procedure 41(aX2) believing that

the State was now complying with the LCCA. Defendants declined to con-

sent to the dismissal. After the telephone status conference, during which

ACORN expressed a desire to redirect its resources from litigation to

monitoring the LCCA program, Defendants filed the summary judgment

motion that was granted.

The district court, in its Memorandum Opinion and Order of

November 14, 1994, recognized that ACORN’s claims were mooted by the

State’s compliance with $§ 300j-24(c) and (d). On February 21, 1994, the

State distributed the January 1990 Federal Register list. Further, dur-

ing the pendency of this litigation, the State completed inspection of all

of the suspect drinking water coolers located in participating schools in

accordance with the State’s remedial action plan--i.e., Louisiana’s Im-

plementation of the federal Lead Contamination Countrol Act of 1988. The

cover page of this plan indicates it was produced by the State’s LCCA Pro-

gram Director in 1989.

8 Section 300}-8(d) provides * at “{tJhe court, in issuing any final order

in any action brought under (300j-8Ka), may award costs of litigation (in-

cluding reasonable attorney and expert witness fees) to any party whenever

the court determines such an award is appropriate.”

A-8

III. Discussion

On appeal, Defendants raise numerous alleged errors

attacking the district court’s award of attorney’s fees. After

wading through this morass, we elect to resolve Defendants’

claims as foliows.

A. 42 U.S.C. 4 300j-24(c)

[1] Defendants challenge both § 300j-24(c) and §

300j-24(d) as violative of the United States Constitution—in

particular, the Tenth Amendment. We are mindful, however,

that “[federal courts] have [a] ... duty to avoid constitutional

issues that need not be resolved in order to determine the

rights of the parties to the case under consideration.” Coun-

ty Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct.

2213, 2223, 60 L.Ed.2d 777 (1979). See also Ysleta Del Sur

Pueblo v. Texas, 36 F.3d 1325, 1332 (5th Cir.1994), certs.

denied, ___. US. 4 , 115 S.Ct. 1358, 1358, 131

L.Ed.2d 215 (1995); Louisiana v. Public Investors, Inc., 35 F.3d

216, 219-20 (5th Cir.1994).

ACORN ’s original complaint alleged only that the State

was in violation of § 300j-24(d). ACORN explained to the

district court that, at the time suit was filed, it was not sure

whether Defendants’ earlier dissemination of the EPA Fact

Sheet, in lieu of the list published by the EPA in the January

18, 1990 Federal Register, constituted compliance with §

300j-24(c). ACORN, 842 F.Supp. at 228 n. 2. After deciding

that it did not, ACORN amended its complaint to allege a

violation of § 300j-24(c). Some nine months after suit com-

menced, Defendants disseminated the Federal Register list.

A-9

Defendants contend they fully complied with §300j-24(c) prior

to ACORN’s institution of suit by distributing to the proper

entities the February 1990 EPA Fact Sheet.9 Accordingly,

Defendants argue they were not in violation of this require-

ment of the LCCA at the time suit was commenced, and

therefore cannot be liable for attorney’s fees incurred in press-

ing a claim to the contrary.

ACORN argues that “publish” in §§ 300j-23(a) and

-24(c) requires publication in the Federal Register. Implied-

ly, the district court agreed. ACORN, 842 F.Supp. at 229,

235 n. 26. Because the Fact Sheet was not so published,

ACORN contends, Defendants did not comply with

§ 300j-24(c) until over nine months after suit was filed, when

they finally disseminated the EPA “final list” of non-lead

free drinking water coolers contained in the January 18, 1990

Federal Register. As such, ACORN continues, the lawsuit

was the catalyst for Defendants’ compliance, and thus

ACORN is entitled to the fees it incurred in pursuing this

claim.

Section 300j-24(c) provides:

Each State shall provide for the dissemina-

tion to local educational agencies, private nonprofit

elementary or secondary schools and to day care

centers of the guidance document and testing pro-

tocol published under subsection (b) of this section,

together with the list of drinking water coolers

° A comparison of the EPA Fact Sheet distributed by the State with the

list published by the Administrator in the January 18, 1990 Federal

disseminated, reveals that the Fact Sheet contains al! of the brands and

models listed in the Federa! Register, plus seven others.

A-10

published under section 300j-23(a) of this title.

42 U.S.C. § 300j-24(c) (emphasis added). 19 Section 300}j-23(a)

calls upon the Administrator to “identify each brand and

model of drinking water cooler which is not lead free” and

to “publish a list of each brand and model of drinking water

cooler [so] identified.” 42 U.S.C. § 300j-23(a) (emphasis add-

ed). Neither provision unambiguously establishes how or

where publication is to be made, nor do we think we need

attempt to do so.

[2] Assuming arguendo “publish” equates to “publish

in the Federal Register,” that Defendants may have failed

to comply technically with the statute is unpersuasive. The

Fact Sheet listed all of the suspect drinking water coolers con-

tained in the Federal Register list. In addition, the Fact Sheet

listed seven other models originally thought to be non-lead

free. Albeit these seven additional models were later deter-

mined to have been incorrectly included by the Administrator

on the Fact Sheet, dissemination of the over-inclusive Fact

Sheet does not defile the purpose of the LCCA. The error,

if any, on the part of Defendants was inconsequential, in that

the entities receiving the Fact Sheet were encouraged to be

more, rather than less, cautious in determining which drink-

ing water coolers in their possession posed a health risk.

10 There has never been any contention by ACORN that the Defendants

failed to properly disseminate the EPA’s guidance document and testing

protocol. Notably, though, § 300j-24(b) provides that the Administrator

“shall publish a guidance document and a testing protocol.” (Emphasis

added). The Administrator, having generated these documents, has never

published more than a notice of their availability in the Federal Register.

See, e.g., Notice, 54 Fed.Reg. 14,316 (1989). Thus, the “published”

documents distributed by the State in compliance with this requirment

were not documents “published in the Federal Register.”

A-11

ACORN is correct that Defendants distributed a list contain-

ing erroneous information.!1 However, Defendants erred in

favor of the State’s school children, the ultimate beneficiaries

of the LCCA, and we see no reason to penalize the State for

such an innocuous transgression. Accordingly, regardless of

how we define “publish,” as used in the LCCA, we find Defen-

dants’ distribution of the EPA Fact Sheet, in this case, suf-

ficient to bring the State into compliance with § 300j-24(c)

prior to ACORN filing suit. As such, we conclude that

ACORN failed to show that Defendants violated this require-

ment of the LCCA, and that ACORN is therefore not entit]-

ed to attorney’s fees incurred in pursuing its § 300j-24(c)

claim.

B. 42 U.S.C. § 300j-24(d)

Heeding the Supreme Court’s admonition to avoid un-

11 ACORN contends that Defendants failure to distribute the Federal

ditional information and an advisory with a toll free number regarding

Halsey Taylor water coolers with lead-lined tanks. We are not swayed for

two reasons. Although this information may be useful, it is not informa-

tion which the LCCA requires the Administrator to compile and include

in the list of non-lead free drinking water coolers. See 42 U.S.C. § 300j-2X(a)

(“{Tihe Administrator shall publish a list of each brand and model of drink-

ing water cooler identified under this subsection. Such list shall separately

identify each brand and model of cooler which has a lead-lined tank. The

Administrator shall continue to gather information regarding lead in

drinking water coolers and shall revise and republish the list from time

to time as may be appropriate as new information or analysis becomes

available....”). Further, review of the EPA Fact Sheet reveals that the bot-

tom, right-hand corner contains the following disclaimer:

Note: A number of water coolers have been deleted from the propos-

ed list identifying them as not lead free. For information about these

water coolers and others, refer to the January 18, 1990 Federal

Thus, persons seeking information in addition to the list of non-lead free

coolers contained in the Fact Sheet are directed to the Federal Register.

A-12

necessary resolution of constitutional questions, we have

foregone determining whether § 300j-24(c) breaches the Tenth

Amendment. Section 300j-24(d), however, does not escape

such inquiry.

In the course of oral argument, we asked the parties

to submit post-argument memoranda on whether the provi-

sions of the LCCA at issue violated the Tenth Amendment.

Subsequent to these submissions, we permitted the United

States to intervene to assert its views. Much of the arguments

focus on whether the teachings of New York v. United States,

505 US. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), are con-

trolling. ACORN contends that if Congress acts legitimate-

ly under an Article I power to regulate activity, the Tenth

Amendment has no sway. On the other hand, Defendants

argue New York stands for the proposition that Congress can-

not impose any requirement on the States pursuant to the

exercise of its Commerce Clause power. Although we agree

that New York is an appropriate starting point for our

analysis, we recognize that neither ACORN nor Defendants

properly grasp the interplay between Congress’ exercise of

the Article I powers and the Tenth Amendment, as that in-

terplay was described by the New York Court.

1. The Tenth Amendment

[3] The Tenth Amendment provides: “The powers not

delegated to the United States by the Constitution, nor pro-

hibited by it to the States, are reserved to the States respec-

tively, or to the people.” It has been said that “(t]he amend-

ment states but a truism that all is retained which has not

been surrendereca. <ee United States v. Darby, 312 U.S. 100,

124, 61 S.Ct. 451, av2, 85 L.Ed. 609 (1941). However, in

A-13

New York, the Supreme Court elucidated the broader effect

of this amendment:

The Tenth Amendment ... restrains the power of Con-

gress, but this limit is not derived from the text of the

Tenth Amendment itself, which ... is essentially a

tautology. Instead, the Tenth Amendment confirms that

the power of the Federal Government is subject to limits

that may, in a given instance, reserve power to the

States. The Tenth Amendment thus directs us to deter-

mine ... whether an incident of state sovereignty is pro-

tected by a limitation on an Article I power.

New York, 505 U.S. at 156-57, 112 S.Ct. at 2418. The Tenth

Amendment, therefore, incorporates extra-textual limitations

upon Congress’ exercise of its Article I powers. Thus, when

an Act of Congress is challenged under the Tenth Amend-

ment, we must be concerned not only with whether Congress

has the power under Article I to regulate the activity in

question, but also with whether the method by which Con-

gress has chosen to regulate the activity pursuant to that

power invades that province of state sovereignty protected

by the Tenth Amendment. Jd. at 158-61, 112 S.Ct. at 2419-20.

In this case, the parties concede that Congress may, pursuant

to its Commerce Clause power, regulate lead-contaminated

drinking water coolers.12 Accordingly, our focus is on

whether the method of regulation chosen by Congress in

§ 300j-24(d) impermissibly intrudes upon state sovereignty.

To answer this question, we begin by reviewing New York.

12 Defendants argue that, while regulating lead-contaminated drinking

water coolers is within Congress’ Commerce Clause power, requiring

States to develop testing programs and to distribute EPA lists are not.

We agree with the United States that the better approach is to focus on

whether requiring such actions of the States is an appropriate means of

regulating such drinking water coolers.

A-14

2. The Tenth Aniendment and New York v. United

States

In New York, the Supreme Court faced a challenge by

the State of New York and two of its counties to the three-

tiered incentive system contained in the Low-Level Radioac-

tive Waste Policy Amendments Act of 1985, Pub.L. No.

99-240, 99 Stat. 1842 (codified at 42 U.S.C. § 2021b et seq.).

The purpose of the Act was to place on each state responsibil-

ity to provide for the disposal of low-level radioactive waste

generated within its borders. To encourage the States to com-

ply with this statutory responsibility, the Act provided three

types of incentives: (1) monetary incentives—i.e., a portion

of surcharges received by states currently operating disposal

sites were to be remitted into an escrow account operated by

the Secretary of Energy who would then disburse this fund

to states that complied with statutorily prescribed deadlines;

(2) access incentives-i.e., states that failed to meet statutori-

ly prescribed deadlines could be denied access to disposal sites

in other states or regions; and (3) a cake title provision—i.e.,

any state that fails to provide for disposal of waste generated

within its borders by January 1, 1996, must take title to the

waste, is obligated to take possession of the waste, and bears

liability for all damages incurred by a generator or owner

of such waste incurred as a consequence of the State’s failure

to take possession. The State of New York opposed all three

incentive provisions, asserting inter alia that the incentives

were unconstitutional violations of the Tenth Amendment.

The Supreme Court, speaking through Justice O’Con-

nor, held only the take title provision unconstitutional. In

reaching this conclusion, Justice O’Connor deduced that the

A-15

take title provision offered state governments a “choice” of

either accenting ownershjn xf and .liahilit’ Ge wasvé- or~

regulating its disposal according to Congress’ instructions.

New York, 505 US. at 175-76, 112 S.Ct. at 2428. Finding

both options, standing alone, to be outside Congress’ authori-

ty, she determined that a choice between them was, in fact,

“no choice at all.” Id. “Either way, ‘the Act commandeers

the legislative processes of the States by directly compell-

ing them to enact and enforce a feder-’ regulatory program,’

an outcome that has never been understood to lie within the

authority conferred upon Congress by the Constitution.”’14

Id. (citation omitted). Indeed, she elaborated:

States are not mere political subdivisions of the

United States. State governments are neither regional

offices nor administrative agencies of the Federal

Government. The positions occupied by state officials

appear nowhere on the Federal Government’s most

detailed organizational chart. The constitution instead

“leaves to the several States a residuary and inviolable

sovereignty,” The Federalist No. 39, p. 245 (C. Rossiter

ed. 1961), reserved explicitly to the States by the Tenth

13 Justice O’Connor did recognize that Congress has several ways of in-

fluencing the actions of the States that comply with our notions of

federalism. For example, Congress can subject state goverr.nents to laws

of general applicability— i.e., laws that apply equally to the States as to

private parties. See, e.g., Garcia v. San Antonio Metro. Trans't Auth., 469

U.S. 528, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985). Also, under its spen-

ding power, Congress may attach to the receipt of federal funds conditions

that have the affect of influencing state legislative choices. See, e.g, South

Dakota v. Dole, 483 U.S. 202, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Fur-

ther, where Congress may regulate pursuant to its Commerce Clause

power, it also has the power to offer States a choice of legislating accor-

ding to Congressional instruction or having state law preempted by federal

regulation. See, e.g., FERC v. Mississippi, 456 U.S. 742, 102 S.Ct. 2126,

72 L.Ed.2d 532 (1982); Hodel v. Virginia Surface Mining & Reclamation

Ass’n, Inc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981).

A-16

Amendment.

Whatever the outer limits of that sovereignty may

be, one thing is clear: The Federal Government may not

compel the States to enact or administer a federal

regulatory program.

Id. at 188, 112 S.Ct. at 2434-35.

3. The Tenth Amendment, New York v. United States,

and § 300j-24(d)

[4] Few Congressional enactments fall as squarely

within the ambit of New York as does § 300j-24(d). Section

300j-24(d) requires each State to “establish a program, con-

sistent with this section,” to assist local educational agen-

cies, schools, and day care centers in remedying potential lead

contamination in their drinking water systems. Failure or

refusal to establish the mandated program subjects the States

to civil enforcement proceedings. 42 U.S.C. § 300j-8(a). The

States thus face a choice between succumbing to Congres-

sional direction and regulating according to Congressional

instruction, or being forced to do so through civil action in

the federal courts. In actuality, this “is no choice at all.” The

LCCA gives the States no alternative but to enact the federal

regulatory plan as prescribed in § 300j-24(d), and such Con-

gressional conscription of state leglislative functions is clearly

prohibited under New York's interpretation of the limits im-

posed upon Congress by the Tenth Amendment.

[5,6] Congress is free, pursuant to its Commerce Clause

power, to combat lead contamination in drinking water by

regulating drinking water coolers that move in interstate

A-17

commerce. Such regulation,however, must operate directly

upon the people, and not the States as conduits to the peo-

ple. “The allocation of power contained in the Commerce

Clause ... authorizes Congress to regulate interstate com-

merce directly; it does not authorize Congress to regulate

state governments’ regulation of interstate commerce.” New

York, 505 U.S. at 165, 112 S.Ct. at 2423. Section 300j-24(d)

is an attempt by Congress to force States to regulate accor-

ding to Congressional direction. As the New York, Court ex-

plained, the Constitution does not permit Congress to so con-

trol the States’ legislative processes.

ACORN and the United States argue § 300}-24(d) is a

valid exercise of Congress’ Commerce Clause power because

it affords the states complete discretion to determine the

means employed in achieving the LCCA’s goals. The New

York Court addressed an identical argument and rejected it

stating: “This line of reasoning ... only underscores the critical

alternative a State lacks: A State may not decline to ad-

minister the federal program. No matter which path the State

chooses, it must follow the direction of Congress.”” New York,

505 U.S. at 177, 112 S.Ct. at 2429. Because § 300j-24(d)

deprives States of the option to decline regulating non-lead

free drinking water coolers, we likewise find no merit to this

argument and conclude that § 300j-24(d) is an unconstitu-

tional intrusion upon the States’ sovereign prerogative to

legislate as it sees fit.

IV. Conclusion

Section 330j-8(d) allows the district court to award at-

torney’s fees “in issuing any final order in any action brought

under [§ 300j-8(a)].” Section 300j-8(aX1), in turn, allows suits

against governmental instrumentalities only when the

A-18

instrumentality is alleged to be in violation of a requirernent

of the SDWA. We hold that Defendants distribution of the

EPA Fact Sheet was sufficient to bring the State of Louisiana

into compliance with the LCCA. As such, Defendants were

not in violation of the requirement imposed by § 300j-24(c)

at the time ACORN commenced this litigation. Further, we

hold that the requirments imposed by Congress upon the

States under § 300j-24(d) violate the Tenth Amendment and

are unconstitutional. Hence, because ACORN has failed to

establish that Defendants were in violation of any lawful re-

quirement of the LCCA at the time it commenced this suit,

the district court’s award of attorney’s fees to ACORN under

§ 300j-8(d) was improper. The judgment of the district court

awarding attorney’s fees to ACORN, for payment by them

to their attorneys, is therefore REVERSED, and ACORN’s

claims are DISMISSED.

A-19

APPENDIX B

MEMORANDUM OPINION AND ORDER

OF THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF LOUISIANA

FILED - NOVEMBER 14, 1994

ACORN, et al.,

Vv.

Edwin EDWARDS, et al.

Civ. A. No. 93-1479.

United Staies District Court, E.D. Louisiana.

Nov. 14, 1994.

MEMORANDUM OPINION AND ORDER

CHARLES SCHWARTZ, JR, District Judge.

This case involves the on-going efforts on the part of

the Association of Community Organizations for Reform

Now, (“ACORN”), on behalf of private citizens to force the

State of Louisiana to comply with 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),

which requires state officials to distribute to Louisiane

schools a list of water coolers that were not lead free and to

adopt and pursue a corresponding remediation program.The

result has been a long, arduous legal battle. From the outset,

the state’s efforts to adhere to the subject regulations was

less than vigilant. Although compliance with the spirit of

the regulation is presently being achieved, such was not the

case until after plaintiffs’ initiated the instant proceedings

A-20

and then, only after defendants’ motion for summary judg-

ment was denied and their motion for reconsideration of that

ruling also was denied.

Now before the Court is plaintiffs’ Motion for an Award

of Attorney’s Fees and Other Expenses pursuant to 42 U.S.C.

§ 300j-8(d), wherein the SDWA provides that “‘courts may

award costs of litigation (including reasonable attorney and

expert witness fees) to any party whenever the court deter-

mines that such an award is appropriate.” Defendant herein,

the State of Louisiana, timely filed formal opposition. The

motion was set for an oral hearing in open court on September

28, 1994. However, the court, having the benefit of both par-

ties’ extensive pleadings and supplemental memorandum,

determined that oral argument would not aid in the disposi-

tion of the matter and deemed it submitted on the briefs.

After considering the comprehensive pleadings of both par-

ties, the complete record, the applicable law, and for all of

the foregoing reasons, the court GRANTS plaintiffs’ Motion

for an Award of Attorney’s Fees and Other Expenses.

BACKGROUND

Much of the background and procedural mandates of

the captioned matter have been recounted in this Court’s

November 15, 1993 Order and Reasons [FN1], attached

hereto, and the Court incorporates same by reference. Subse-

quent to the above decision, the Court via its Minus» Entry

of May 16, 1994, denied plaintiffs’ Motion for Summa: y Judg-

ment, following which defendants filed yet another Motion

for Summary Judgment/Alternative Motion for Partial Sum-

mary Judgment. Citing a dwindling of available resources

and “reasonable improvement” in the defendants’ efforts to

A-21

adhere to the LCCA guidelines, plaintiffs submitted to defen-

dants a Motion to Dismiss under F.R.C.P. 41(aX2); however,

the defendants declined to consent to dismissal.

Pursuant to a telephone conference in which plaintiffs

expressed a desire to redirect resources from litigation

towards monitoring the LCCA program, defendants filed and

this Court granted defendants’ Motion for Summary Judg-

ment on the grounds of mootness, reserving the parties’ right

to seek attorney’s fees. [FN2] The issue of the plaintiffs’ right

to attorney’s fees is now before the court.

ATTORNEY’S FEES AND THE ELEVENTH

AMENDMENT

Notwithstanding the general immunity provisions of

the Eleventh Amendment which act as a bar to all types of

suits for damages or retroactive relief for past wrongs, a court

may award attorney’s fees where Congress has granted a

right to such fees and where Congress has classified those

fees as “costs” ancillary to a claim for prospective relief

against a state. Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565

(1979). [FN3] In the LCCA, as in the statute at issue in Hut-

to, [FN4] Congress has expressly provided for an award of

attorney’s fees:

The court, in issuing any final order in any action

brought under subsection (a) of this section, may award costs

of litigation (including reasonable attorney and expert

witness fees) to any party whenever the court determines

such an award is appropriate. 42 U.S.C. § 300j-8(d). (emphasis

added).

A-22

With such clear language, there can be no doubt that

Congress intended for attorney’s fees to be considered part

of the ancillary “costs” associated with a suit for prospec-

tive relief under the LCCA. Costs traditionally have been

awarded without regard to the States’ Eleventh Amendment

immunity, Hutto, 437 U.S. at 695, 98 S.Ct. at 2576, and in

this matter, the Court finds no reason to depart from the

Supreme Court’s guidance.

Derendants herein nevertheless assert that an analogy

to Huto is inappropriate since the applicable statute in Hut-

to provides for recovery of costs for a “prevailing party,”

which defendants contend is inapplicable to the instant

plaintiffs.

PREVAILING PARTY STATUS

It is undisputed by both parties that to recover at-

torney’s fees under 300j-8(d) [FN5], plaintiffs must be con-

sidered “prevailing parties,” and must achieve “some suc-

cess on the merits.” Ruckelshaus v. Sierra Club, 463 U.S. 680,

103 S.Ct. 3274 (1983) (holding that absent some degree of suc-

cess on merits by claimant, it is not “appropriate” for federal

court to award attorney fees in a proceeding for judicial

review of emission standard promulgated under Clean Air

Act, 42 U.S.C.A. § 7607(f). “A plaintiff may be prevailing

party in the absence of a judicial determination on the

merits.” Colorado Environmental Coalition v. Romer, 796

F.Supp. 457, 459 (D.Colo.1992) (awarding attorney’s fees to

environmental group, as the prevailing party in an effort to

force state’s compliance with provisions of the Safe Drink-

ing Water Act, 42 U.S.C.A. § 300j-8(d)). Parties are considered

prevailing for the purposes of an award of attorney’s fees if

A-23

they “succeed on any significant issue in the litigation which

achieves some of the benefit che parties sought in bringing

suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). “The

touchstone of the prevailing party inquiry must be the

material alteration of the legal relationship of the parties

in a manner which Congress sought to promote in the fee

statute.” Texas State Teacher’s Ass’n. v. Garland Indepen-

dent School District, 489 U.S. 782, 792-93 (1989) (Awarding

attorney’s fees to teachers’ unions which challenged a school

board policy because the Court found that the plaintiffs had

succeeded on a “significant issue” in litigation and therefore

had crossed the threshold for attorney fee award, pursuant

to 42 U.S.C.A. § 1988)). In Watkins v. Fordice, 7 F.3d 453

(5th Cir.1993) [FN6], the Fifth Circuit devised a two part test

applicable to the determination of whether a party in a case

in which there has been no judicial ruling on the merits may

be considered “‘a prevailing party.” Plaintiffs herein must

show (1) the goals of the lawsuit were achieved, and (2) the

suit caused the defendants to remedy the complained of ac-

tivity. Id. at 456. Furthermore, the lawsuit must be a

“substantial factor or significant catalyst” in changing

behavior. Id. (citations omitted).

First, there is no doubt that the goals of the plaintiffs’

lawsuit were achieved; plaintiffs’ have dismissed their claims

on the grounds that they are now moot since post-summary

judgment the defendants have achieved substantial com-

pliance with the act in question and their efforts now appear

diligent. As previously stated, plaintiffs continue to monitor

the State defendants; compliance with the Act. As in Watkins,

7 F.3d at 457, this Court finds the “chronology of events

particularly instructive on the role played by plain-

A-24

tiffs’ lawsuit” in terminating defendants’ non-compliance.

Upon dismissing the defendants’ first summary judgment mo-

tion, this Court noted that the timing of the state’s remedial

action points to a finding that the plaintiffs’ lawsuit was a

substantial factor:

The Court here notes that the sequence of events strong-

ly suggests that plaintiffs’ notice of intent to sue and the suit

filed sixty days thereafter, has been a significant catalyst

in precipitating partial compliance by the State defendants

with the provisions of the Lead Contamination Control Act

of 1988 (LCCA), 42 U.S.C. Section 300j-21 through Section

300j-26. Only after plaintiffs sent their notice of intent to sue,

did the defendants mail to Louisiana Schools a fact sheet

which identified some water coolers which are not lead free.

Further, only after the plaintiffs filed the instant suit did

the state defendants go to the schools identified in plaintiffs’

complaint and assist in the testing of water coolers as re-

quired by the LCCA.

ACORN v. Edwards, 842 F.Supp. 227, 229 n. 3

(E.D.La.1993). On February 21, 1994, the defendants

discharged their duties under 42 U.S.C. § 300j-24(c) and sent

the required Federal Register list, thereby fulfilling one of

the two goals sought by plaintiffs.

The second objective of plaintiffs, to force defendants

to expedite the testing of water coolers at participating

schools, also was fulfilled once plaintiffs initiated their

lawsuit. [FN7] Simply stated, plaintiffs clearly have satisfied

their burden of demonstrating that their lawsuit was a

significant catalyst or a substantial factor behind the altered

A-25

government action. In the case of a non-monetary prospec-

tive suit, such as the case at bar, a party prevails, despite

the lack of an enforceable judgment, consent decree, or set-

tlement, when the defendant, because of the plaintiffs’ suit,

modifies his behavior to conform with the plaintiffs’ request,

as has been clearly demonstrated by the plaintiffs in this case.

It can not be disputed that the plaintiffs’ suit was the very

pressure that pushed the state into substantial implemen-

tation of its remediation plan and thus, into compliance with

the LCCA.

Additionally, defendants contend that the instant plain-

tiffs are precluded from recovering attorney’s fees because

they have not been charged by counsel and counsel has not

earned any fees. The Court disagrees. The fact that a prevail-

ing party is represented by a public service organization or

firm is irrelevant in determining whether reasonable fees

are due. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541 (1984)

(Awarding attorney’s fees under the Civil Rights Attorney

Fees Awards Act of 1976 to private, nonprofit counsel which

prevailed in a citizens class action suit challenging certain

procedures utilized for termination of Medicaid benefits); See

also, Watkins v. Mobile Housing Board, 632 F.2d 565, 567

(5th Cir.1980).

The Fact that the lion’s share of jurisprudence relative

to fee awards in the case of prevailing parties involves civil

rights cases and concomitantly, the Civil Rights Attorney

Fees Award Act of 1976, is of no moment. According to the

express language of both the Civil Rights Attorney Fees

Award Act of 1976 and the LCCA, the Court has within its

discretion the authority to award reasonable attorney’s fees

as part of the costs. Although the Court believes the case

A-26

at bar may be one of first impression with respect to the

LCCA, the Court is of the opinion that the attorney fee pro-

visions of the aforesaid Acts are congruous [FN8] and thus,

similar treatment is both appropriate and warranted. To hold

otherwise would eviscerate the intent of Congress in creating

citizen’s suit provisions which enable ordinary citizens to

monitor and bring suit seeking to force compliance with

enacted legislation.

REASONABLENESS OF ATTORNEY’S FEES AND

OTHER EXPENSES

“The most useful starting point for determining the

amount of a reasonable fee is the number of hours reasonably

expended on the litigation multiplied by a reasonable hour-

ly rate.” Hensley, 461 U.S. at 433. In assessing whether hours

expended are reasonable, the Supreme Court favors treating

a case as a whole rather than as atomized line-items. INS

v. Jean, 496 U.S. 154, 162 (1990). In this case, plaintiffs’ at-

torneys culled many of the hours which they believed to be

excessive for the task involved, which were redundant, and

which were not adequately explained or described in their

time records. Likewise, the hours spent responding to press

inquiries, conferring with and preparing memoranda to law

clerks, and many hours of research by law clerks were also

excluded from the total hours expended by plaintiffs’ counsel.

Plaintiffs’ attorneys’ attention to efficiency obliges the Court

to find that the total amount of hours for which the plain-

tiffs seek recompense in the form of attorney’s fees is cer-

tainly reasonable.

Similarly, the Court finds the actual legal fees sought

by plaintiffs reasonable. The record reflects that plaintiffs’

A-27

counsel and the supervisor of all work performed on this mat-

ter has an environmental law background and over twelve

years experience in federal court litigation. As the manag-

ing attorney for the Sierra Club Legal Defense Fund, plain-

tiffs’ counsel has given numerous lectures on the specific pro-

blems of lead contamination and has authored works on en-

vironmental law issues which have been published. The fees

requested by this expert were attested to by affidavit to be

reasonable in the prevailing community. The reasonableness

of the plaintiffs’ attorney’s fees is not disputed, and this Court

specifically finds that the fees sought to be charged are

reasonable and commensurate with the prevailing rate in

the community.

Accordingly, for all the foregoing reasons,

IT IS ORDERED that plaintiffs’ Motion for an Award

of Attorney’s Fees and Other Expenses is HEREBY

GRANTED and the defendants, Edwin Edwards, in his of-

ficial 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, T. Jay Ray,

in his official capacity as Administrator of the Safe Drink-

ing Water Program, Louisiana Department of Health and

Hospitals, Office of Public Health, shall pay reasonable at-

torney’s fees and expenses in the amount of forty-one thou-

sand, one hundred eighty-one dollars and twenty five cents

($41,181.25) to plaintiffs, ACORN, Association of Community

Organizations for Reform Now, Illene Sippio, individually

and as tutrix for her minor daughters, Terri Sippio and Torey

Sippio, and Frank Crosby, individually and as tutor of his

minor son, Devin Crosby for payment of them in the same

amount to their attorneys herein, Nathalie M. Walker,

A-28

Robert Baxter Wiygul, and Sharon Carr Harrington of the

Sierra Club Legal Defense Fund, Inc.

The Clerk of Court shall enter judgment in accordance

herewith.

ACORN, ET AL

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 Ad-

ministrator of the Safe Drinking Water Program, Loui-

siana Department of Health and Hospitals, Office of Public

Health.

CIVIL ACTION NO. 93-1479

SECTION “A”(1)

MINUTE ENTRY

November 15, 1993

CHARLES A SCHWARTZ, JR., District Judge.

Before the Court is the defendants’ Motion to Dismiss

for Lack of Subject Matter Jurisdiction and Alternatively

for Summary Judgment. Plaintiffs timely filed formal op-

position to the aforesaid motion and the matter was sub-

mitted on the briefs without the necessity of any oral hear-

A-29

ing. For the reasons hereinafter stated, defendant’s Motion

to Dismiss and Alternatively for Summary Judgment is

DENIED.

I. PROCEDURAL BACKGROUND.

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) (failure to send EPA’s published list of water coolers

that are not lead free) and § 300j-24(dX1) & (3) (failure to have

a remedial program to ensure testing, etc. of water coolers

by January 31, 1990). 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.

(FN1)

On May 4, 1993, plaintiffs filed suit against the State

defendants alleging, at first, only a violation of 42 U.S.C. §

300(dX1) & (3). [FN2] Thereafter, plaintiffs amended their

complaint to allege a violation of 42 U.S.C. § 300j-24(c), hav-

ing 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 compliance [FN3] with

the provisions of the Lead Contamination Control Act of 1988

(LCCA), 42 U.S.C. § 300j-24(c) and 24(d), amending the Safe

Drinking Water Act (SDWA). Specifically, plaintiffs seek an

order compelling the State defendants to distribute to Loui-

siana Schools, as mandated, the “list of drinking water

coolers [which are not “lead free”) published under section

300}-23(a)” [FN4] and to establish a remedial program which

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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 in-

operable unless the cooler is tested and found not to con-

tribute lead to drinking water. [FN5] Considering that the

timetable established by the statute requires that State in-

stitute 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 defen-

dants 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 provid-

ed 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(dX1) of the Act.

In the Colorado Envioronmental Coalition case, there

apparently was no question that the Colorado En-

A-31

vironmentai Coalition, an environmental group seeking at-

torney’s fees under the SDWA had standing and was entit]-

ed to compensation for time spent after filing notice of in-

tent 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 ultimate-

ly resulted in a consent decree.

Il. SDWA/LCCA.

The LCCA mandates that the Environmental Protec-

tion Agency (“EPA”) undertake two duties: (1) “after notice

and opportunity for public comment” and “usi [ing] the best

information available, ... [the EPA] shall publish a list of each

brand and model of drinking water cooler ... which is not lead

free, [F.N6] including each brand and model of drinking water

cooler.. which has a lead lined tank.” [FN7] 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

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

A-32

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 in-

operable unless the cooler is tested and found ... not to con-

tribute lead to drinking water. [FN8]

The LCCA does not expressly impose a mandatory du-

ty on the local educational agencies/schools to either test for

or remedy lead contamination. Participation of the schools

and local agencies is voluntary. [FN9] 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.

III. DISMISSAL/SUMMARY JUDGMENT IS

INAPPROPRIATE.

Defendants’ contentions on its Motion to Dismiss/Sum-

mary Judgment are that: plaintiffs lack “standing” to pur-

sue this matter, and that its lack of standing is sufficiently

jurisdictional to require dismissal under FRCP Rule 12(bX1);

and that plaintiffs’ alleged failure to comply with the notice

requirements of 42 U.S.C. § 300j-8(b) [FN10] is jurisdictional

and thus, requires dismissal. :

Under the SDWA, EPA regulations provide that the

notice letter shall include:

(1) sufficient information to permit the recipient to iden-

tify the specific requirement alleged to have been violated,

(2) the activity alleged to constitute a violation,

A-33

(3) the person or persons responsible for the alleged

violation,

(4) the date or dates of the alleged violation, and

(5) the full name, address, and telephone of the person

giving notice.

40 C.F.R. § 135.12(a). As more fully explained herein below,

the plaintiffs’ Notice Letter complies with the requirements

set forth above.

Plaintiffs 60-Day Notice Letter cites the two re-

quirements of the LCCA that the defendants have allegedly

violated, to wit:

The suit will allege that officials of the State of Loui-

siana are in violation of section 300j-24(c) of the Act, which

addresses dissemination of the Environmental Protection

Agency’s (“EPA”) list of lead contaminated water coolers to

schools and day care facilities, and section 300j-24(d) of the

Act, which concerns remediation of lead contamination in

drinking water consumed by school children.

The Act requires the Administrator of the EPA to iden-

tify and publish a list of the brands and models of drinking

water coolers which are not lead free by February 8, 1989.

42 U.S.C. § 300j-23(a). The Act also requires each state to

distribute the EPA list of water coolers to schools and day

care facilities, and to establish a remedial action program

to ensure that EPA listed water coolers are disconnected,

repaired, or removed from schools by January 31, 1990. 42

U.S.C. § 300j-24(c) and (a).

A-34

Section 300j-24 provides in pertinent part:

Within 9 months after October 31, 1988, each State

shall establish a program, consistent with this section, to

assist local educational agencies in testing for, and remedy-

ing, lead contamination in drinking water from coolers and

from other sources of lead contamination at schools under

the jurisdiction of such agencies.

* * *

In the case of drinking water coolers, such 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 within 15 months after October

31, 1988, all such water coolers in schools under the jurisdic-

tion of such agencies are repaired, replaced, permanently

removed, or rendered inoperable unless the water cooler is

tested and found (within the limits of testing accuracy) not

to contribute lead to drinking water.

42 U.S.C. § 300j-24(dX1)43).

The State of Louisiana has failed to distribute the EPA

list of water coolers to schools and day care facilities. Accor-

dingly, many Louisiana schools and day care facilities con-

tinue to be unaware of the presence of lead contaminated

water coolers in their schools since the State has failed to

provide them with this information in violation of section

300j-24(c).

A-35

The State of Louisiana has also failed to implement a

remedial action program consistent with section 300j-24(d).

Specifically, the State has failed to create measures to en-

sure the removal, repair, replacement, or disconnection of

all water coolers contaminated by lead by January 1, 1990.

The school children of this State continue to be exposed to

potentially dangerous lead levels from drinking water coolers

at their schools and day care centers in direct violation of

section 300j-24(d). [FN11]

The Court is of the opinion that because the specific re-

quirements of the LCCA were directly cited by the plaintiffs

to the defendants and that the particular aspects of the defen-

dants’ failure to comply with such requirements were ade-

quately explained within the four corners of plaintiffs’ 60-day

Notice Letter, the defendants had more than sufficient in-

formation to identify the specific requirements allegedly

violated within the meaning of 40 C.F.R. § 135.12(a).

Defendants’ reliance on Public Interest Research Group

of New Jersey, Inc. v. Hercules, Inc., 36 ERC 1833 (D.N.J.1993)

(a Clean Water Act case) is misplaced. As the plaintiffs apt-

ly puint out, the citizen suit provision of the CWA is narrowly

drawn and can only be brought by an “adversely affected”

person against any person “who is alleged to be in violation

of (A) an effluent standard or limitation under this chapter

or (B) an order issued by [EPA] or a State with respect to such

a standard or limitation....” 33 U.S.C. 1365(aX1) (emphasis

supplied). EPA regulations promulgated under the CWA re-

quire a citizen suit notice letter to “include sufficient infor-

mation to permit the recipient to identify the specific stan-

dard, limitation, or order alleged to have been violated...”

40 C.F.R. § 135.3(a).

In contrast, a citizen suit under the SDWA can be

A-36

brought by any person (i.e., there is no requirement that the

person be “adversely affected’’) against any person “alleged

to be in violation of any requirement prescribed by the sub-

chapter.” 42 U.S.C. § 300j-8(aX1). EPA regulations under the

SDWA commensurately require a citizen suit to “include suf-

ficient information to permit the recipient to identify the

specific requirement alleged to have been violated....” 40

C.F.R. § 135.12(a).

The precise holding of Hercules, was that under EPA’s

CWA notice regulations, the “monitoring”, “reporting”’, and

“recordkeeping” violations, which were not specifically iden-

tified in plaintiff's original notice letter, could not be added

to plaintiff's citizen suit without first being noticed under

the EPA regulations. Hercules, 36 ERC at 1840-41. In other

words, Hercules stands for the proposition that violations

alleged in the citizen’s suit under the CWA which were not

the subject of the notice letter are not properly before the

court.

Plaintiffs in the case at bar have not sought leave to

add any specific requirement violations to their citizen suit

that were not addressed in their notice letter. Defendant’s

argument that it is not obliged by the SDWA to send the

EPA’s final list of water coolers published in the January

18, 1990 Federal Register goes to the merits of the plaintiffs’

citizen suit and is not properly invoked as an argument re-

quiring dismissal of plaintiffs’ suit for lack of Article II] stan-

ding. The Court further rejects defendants’ argument that

plaintiffs’ informational interests must be a requirement

under the SDWA, and thus identified in the notice letter. As

plaintiffs’ memorandum in response to defendants’ reply brief

aptly points out, EPA regulations do not require that plain-

A-37

tiffs’ injuries be included in the 60-day Notice Letter.

In the case at bar it is allegedly the defendants’ conti-

nuing inactivity or failure to comply with the requirements

of the SDWA which constitute violations of the Act. It can-

not be seriously argued that the plaintiffs’ 60-day Notice Let-

ter was deficient with respect to notifying defendant’s of their

alleged continuing failure to comply with the provision of

the SDWA (i.e., failure to distribute the EPA’s list of water

coolers and failure to implement a remedial action program

consistent with section 300j-24(d)).

Moreover, and as required, plaintiffs’ 60-day Notice Let-

ter was addressed to all defendants and stated that the for-

thcoming citizen suit would “allege that officials of the State

of Louisiana are in violation of ” the provisions discussed

herein above. There can be no serious dispute that the 60-day

notice adequately identifies the location of the alleged viola-

tions, to wit: schools and day care facilities under the jurisdic-

tion of the Louisiana Department of Health and Hospitals,

where the defendant officials of the State of Louisiana, Pilley

and Ray, are employed. Their address is contained in plain-

tiffs’ notice letter. The Court agrees with the plaintiffs, that

whereas here the alleged violation is inactivity or a failure

to comply with the SDWA, the location requirement is

somewhat anomalous.

There is no question that plaintiffs’ 60-day notice let-

ter accurately identifies the dates of the alleged violations

stating that defendant’s violations are continuing.

Defendants contend that plaintiff ACORN (Association

of Community Organizations for Reform Now) did not give

A-38

notice, but rather, Louisiana ACORN gave notice. Plaintiffs’

submissions on summary judgment clearly show that both

“ACORN” and “Louisiana ACORN” are one and the same

organization. Therefore, the Supreme Court’s decision in

Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304

(1989) is inapposite. The facts of Hallstrom were that peti-

tioners completely failed to send any notice at all to the ap-

propriate parties prior to filing a citizen suit pursuant to the

Resource Conservation and Recovery Act (RCRA). [FN12]

In April of 1981, believing Tillamook County’s land-

fill operation violated standards under the RCRA, petitioners

in Hallstrom sent written notice of their intent to suit to the

County. A year later petitioners filed suit. Petitioners com-

pletely failed to notify Oregon’s Department of Environmen-

tal Quality and the EPA as required by § 6972(bX1), the ap-

propriate notice provision. The Supreme Court held that the

district court must dismiss the action as barred by the statute

since the statute itself put petitioners on notice of the re-

quirements for bringing a citizen suit with which re-

quirements petitioners failed to comply.

Plaintiffs in the case at bar, which include ACORN (i.e.,

identified in the Notice to Sue Letter as Louisiana ACORN),

Sippio and Crosby, served adequate notice. Defendants do

not deny that plaintiffs Sippio and Crosby served adequate

notice or notice which substantially complied with the

requirements.

EPA regulations governing the adequacy of required 60-day

notice provide that notice must “include sufficient informa-

tion to permit the recipient to identify ... the full name, ad-

dress, and telephone number of the person giving notice.”

A-39

(F'N13] Plaintiffs’ notice letter sets forth the correct business

address and telephone number of plaintiff ACORN , a8 well

as, the names, addresses and telephone numbers of plaintifts

Sippio and Crosby.

In Connecticut Coastal Fisherman’s Association v. Rem-

ington Arms Company, Inc., 777 F Supp. 173 (D.Conn.1991),

(FN14) the court held that although the name on the notice

to sue letter identified the plaintiff as “Connecticut Coastal

Sportsman’s Association,” [FN15] plaintiffs gave sufficient

notice under the citizen suit provision of the RCRA. Discuss-

ing the Supreme Court's decision in Hallstrom, the court in

Connecticut Coastal Fisherman determined that notice was

sufficient so long as the organization remained the same and

that the mere change in the name of the organization did

not alter the fact that the defendants received the requisite

notice of intent to sue. [FN16]

In the case at bar, the plaintiff Louisiana ACORN has

submitted affidavits and other documents supporting its

statement that Louisiana ACORN and ACORN are one and

the same organization and the defendants have submitted

no evidence to the contrary. Notwithstanding the foregoing,

considering the fact that plaintiffs Sippio and Crosby gave

proper notice, ACORN is deemed to have “substantially com-

plied” with statutory requirements of notice.[FN17]

Moreover, defendants’ contention that plaintiffs’ suit

must be dismisssed for failure to notify the Orleans Parish

School Board is wholly without merit. 40 C.F.R. 135.11 only

requires that a notice letter under SDWA be served upon “an

alleged violator.” A thorough review of the plaintiffs’ com-

plaint in the captioned case reveals no allegations against

A-40

the Orleans Parish Schoci Board. The only defendants

named are the state defendants listed in the foregoing cap-

tion. Finally, sections 300j-24(dX1) & (3) and section 300j-24(c)

(i.e., the sections which form the basis of plaintiffs’ lawsuit

against the state defendants) only address obligations of the

state and not obligations of schools or school boards.

The Court is further of the opinion that ACORN has

standing to bring this action because it satisfies the require-

ment set forth by the Fifth Circuit in Save Our Community

v. U.S.E.P.A., 971 F.2d 1155, 1160 (5th Cir.1992) [FN18], to

wit:

Representational standing is appropriate where: ‘(a) its

members would otherwise have standing to sue in their own

right; (b) the interests it seeks to protect are germane to the

organization’s purpose; and (c) neither the claim asserted nor

the relief requested requires participation of the individual

members in the lawsuit.’ Id.

The Fifth Circuit explained that the “(standing

analysis focuses upon wJhether a party has a sufficient stake

in an otherwise justifiable controversy to obtain judicial

resolution of that controversy.’ ” Id.

ACORN satisfies the above enumerated requirements for

organizational standing. The “zone of interests” test enun-

ciated in Lujan v. National Wildlife Federation, 110 S.Ct.

3177, 3187 (1990) [FN19] cited in plaintiff's brief does not

apply to this case. ACORN’s case was brought pursuant to

the citizen suit provision of the SDWA (i.e., 42 U.S.C. §

300j-8), which authorizes suits by “any person.” [FN20]

A-4l1

The first factor under the test enunciated in Save Our

Community, requires this Court to determine whether any

of ACORN’s “members would otherwise have standing to sue

in their own right.” [FN21] The requirement is satisfied if

the organization’s members, “or any one of them, are suf-

fering immediate or threatened injury as a result of the

challenged action.” [FN22] The Fifth Circuit in Save Our

Community noted that other courts have also recognized the

low threshold for sufficiency of injury. The purpose of the in-

quiry is to determine whether the requisite injury really has

occurred or will occur in the future to members of the

organizations. [FN23]

ACORN has submitted the affidavits of the two of its

members and its Head Organizer (Plaintiffs’ Exhibits 1, 2,

and 3). The affidavits of Williams and Herbert establish that

they are parents of children attending schools in the state

of Louisiana which have water coolers in operation that are

listed on the EPA’s list published in the Federal Register as

being “not lead free.” Beth Butler, Acorn’s Head Organizer’s

affidavit establishes among other things, that (1) the purpose

of the organization is to attain the advancement of low and

moderate income people as citizens of the United States and

their respective communities and states, in every area of their

interest and concern; (2) that Louisiana ACORN members

are concerned about their children being exposed to poten-

tial lead poisoning and it has conducted meetings, forums,

etc. focusing upon its members concerns regarding lead

poisoning; (3) Louisiana Acorn members include approximate-

ly 4000 families throughout the state of Louisiana who have

children that attend schools throughout the state; and (4) that

the defendants’ failure to properly implement the LCCA has

adversely affected ACORN members throughout the state,

A-42

not just in Orleans Parish, who have children attending

schools who have not received the EPA’s “FINAL LIST”

published in the Federal Register and which have coolers

which are not “lead free” in operation without any testing.

Injury in fact may be shown by the adverse effect of

defendants’ alleged failure to comply with the dictates of the

LCCA insofar as any such failure to comply increases the

risk that ACORN member’s children will be exposed to lead

poisoning. The defendants’ cannot seriously argue the risk

of harm is absent where State compliance with the LCCA’s

terms is mandated in order to obviate the attendant risk of

lead poisoning of school children drinking from water coolers

which are “not lead free” and have not been tested.

The Court finds the House Committee Report which accom-

panied section 1431 of the SDWA and which discusses its im-

minent hazard provision instructive, wherein it is stated:

Furthermore, while the risk of harm must be “imminent”

for the Administrator to act, the harm itself need not be.

Thus, for example, the Administrator may invoke this sec-

tion when there is an imminent likelihood of the introduc-

tion into drinking water of contaminants that may cause

health damage after a period of latency.

Among those situations in which endangerment may be |

regarded as “substantial’ are the following:

(1) a substantial likelihood that contaminants capable of

causing adverse health effects will be ingested by con-

sumers if preventive action is not taken;

(2) a substantial statistical probability that disease will

A-43

result from the presence of contaminants in drinking

water: ,or.

(3) the threat of substantial or serious harm (such as ex-

posure to carcinogenic agents or other hazardous con-

taminants....) H.R. Rep. No. 1185, 93rd Cong., 2d Sess.

35-36, reprinted in [1974] U.S. Code & Cong.Ad.News 6454,

6487-88. [FN24]

Plaintiff ACORN members have met any requirement

of showing that the threat to their interests are “actual or

imminent” and not simply conjectural or hypothetical.

ACORN points out in its opposition memorandum that

ACORN members William and Herbert have children cur-

rently attending schools which have water coolers which are

not lead free presently in operation and therefore, their

children are immediately threatened with harm.

IV. CONCLUSION.

Plaintiffs have demonstrably fulfilled the congressional!

policies underlying the subject notice requirements, to wit:

(1) via plaintiffs’ 60-day Notice Letter, they have allowed

governmental agencies an opportunity to enforce the law;

(FN25) and (2) they have allowed the state defendants (i.e.,

alleged violators) the opportunity to comply with the law,

either of which could render their citizen suit unnecessary.

([FN26] For all of the above and foregoing reasons, the Court

is of the opinion that plaintiffs have given adequate notice

and have standing to bring their citizen suit. Accordingly,

IT IS ORDERED that Defendants’ Motion to Dismiss

for Lack of Jurisdiction and Alternative Motion for Summary

Judgment is hereby DENIED.

A-44

FN1. Via Order & Reasons entered November 15, 1993,

this Court denied defendant’s Motion to Dismiss for Lack

of Subject Matter Jurisdiction or Alternative Motion for

Summary Judgment, finding that ACORN has represen-

tational standing to bring suit and that plaintiffs had

satisfied the requirements to overcome the summary judg-

ment hurdle.

FN2. See Minute Entry of June 2, 1994.

FN3. An award of attorney’s fees was proper in civil

rights suit brought by state prisoners against officers of

State Department of Correction in their official capacities

as a result of officers’ failure to cure constitutional viola-

tions in prisons. Additionally, attorney’s fees for the ap-

pellate process were awarded, pursuant to the Civil Rights

Attorney’s Fees Awards Act of 1976, Pub.L. No. 94-559,

90 Stat. 2641, 42 U.S.C. § 1988 (1976 ed.), which provides

that in suits under 42 U.S.C. § 1983 and certain other

statutes, federal courts may award prevailing parties

reasonable attorneys fees “as part of the costs.”

FN4. 42 U.S.C. § 1988 provides in pertinent part:

(b) Attorney’s fees

In any action or proceeding to enforce a provision ... the

court, in its discretion may allow the prevailing party,

other than the United States a reasonable attorney’s fee

as part of the costs.

FN 5. The Court notes that the language of the statute

at issue in this case, 42 U.S.C. §300j-8(d), unlike the statute

at issue in Hutto, 42 U.S.C. § 1988(b), does not explicitly

call for a “prevailing party,” although in determining

whether such an award is “appropriate” the court must

consider the status of the party seeking an award of at-

torney’s fees. An award is “appropriate” when a party has

advanced the goals of the statute involved in the litiga-

Pree): en

en eee

A-45

tion. Chemical Manufacturer’s Association v. U.S. E.P.A., 885

F.2d 1276, 1279 (5th Cir.1989).

FN6. Despite Extrajudicial resolution of case, involving

Voting Rights Act of 1965, 42 U.S.C.A. § 19731(e[sic], and

the Civil Rights Attorneys’ Fees Award Act of 1976, 42

U.S.C.A. § 1988, attorneys fees were awarded but the case

was remanded for reexamination of a reasonable hourly rate.

FN7. Between January 31, 1990, the effective date of the

LCCA, and June 1, 1993, shortly after plaintiffs originally

filed suit, only 12,812 water coolers had been inspected. This

figure indicates that only 56% of the coolers located in par-

ticipating schools had been inspected over a period of thirty-

seven months. Once plaintiffs filed suit, the remaining 44%

of the coolers located in participating schools were tested in

only nine months. These statistics are strongly indicative of

the fact that plaintiff's citizen suit and the ensuing legal pro-

ceedings were the catalyst which accelerated defendants’ ef-

forts and forced their compliance with regulations of the

LCCA.

FN8 Cf. Dugue v. City of Burlington, 935 F.2d 1343, 1357

(2nd Cir.1991), cert. granted in part, 112 S.Ct., and rev’d on

other grounds, 112 S.Ct. 2638 (1992) (affirming an award of

attorney’s fees to plaintiffs as prevailing parties under the

RCRA, 42 U.S.C. § 6972, and the CWA, 33 U.S.C. § 1365,

and noting that “most of the cases cited involve the At-

torney’s Civil Rights Fee Awards Act, 42 U.S.C. § 1988, the

principles governing fee awards under that act[sic] are ap-

plicable to the attorney’s fee provisions before us because of

their substantially similar language.’’)

A-46

FN1. By its terms section 42 U.S.C. § 300j-24(c) requires

the defendants to “provide for the dissemination to [schools]

... the list of drinking water coolers published under sec-

tion 300j-23(a) of this title.” The final list of water coolers

was published by the EPA in the January 18, 1990, Federal

that it is its “final list” of water coolers “issued pursuant

to the Lead Contamination Control Act of 1988.” 55

Fed.Reg. 1772 (1990) (Plaintiff's Exhibit “8”).

FN2. Plaintiffs explained that at the time they filed suit,

they had not determined whether defendants’ dissemina-

tion of the EPA “Fact Sheet” instead of the required final

- list published in the Federal Register constituted com-

pliance with the LCCA.

FN3. The Court here notes that the sequence of events

strongly suggests that plaintiffs’ notice of intent to sue and

the suit filed sixty days thereafter, has been a significant

catalyst in precipitating partial compliance by the state

defendants with the provisions of the Lead Contamination

Control Act of 1988 (LCCA), 42 U.S.C. § 300j-21 through

300j-26. Only after plaintiffs sent their notice of intent to

sue, did the defendants mail to Louisiana Schools a fact

sheet which identified some water coolers which are not

lead free. Further, only after the plaintiffs filed the ins-

tant suit did the state defendants go to the schocls iden-

tified in plaintiffs’ complaint and assist in the testing of

water coolers as required by the LCCA. Plaintiffs suggest

that even without the benefit of discovery, the summary

judgment evidence supports their contention that the

defendants remain in violation of the LCCA’s strict man-

date, inter alia, that all coolers that are not lead free be

tested, and repaired, replaced, or removed (as testing war-

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rants) by January 31, 1990. The summary judgment record,

and more particularly plaintiffs’ Exhibit “7”, indicates that

as of June 1993, approximately 55% of the schools par-

ticipating in the state’s LCCA program have still not had

their water coolers which are on the EPA published list

tested.

FN4. 42 U.S.C. § 300)-24(c).

FN5. 42 U.S.C. § 300)-24(d).

FN6. With respect to a drinking water cooler, “lead free”

means:

that each part or component of the cooler which may come

in contact with drinking water contains not more than 8

percent lead, except that no drinking water cooler which

contains any solder, flux, or storage tank interior surface

which may come in contact with drinking water shall be

considered lead free if the solder, flux, or storage tank in-

terior surface contains more that 0.2 percent lead. 42

U.S.C. § 300j-21(2).

FN7. 42 U.S.C. § 300j-21(2).

FN8. 42 U.S.C. § 300j-24(dX1) & (3).

FN9. Section 300j-24(dX2) does impose a mandatory du-

ty on participating local educational agencies to make

testing results available to the public.

FN10. 42 U.S.C. § 300j-8(b) provides in pertinent part:

No civil action may be commenced—

(1) Under subsection (aX1) of this section respecting a viola-

tion of a requirement prescribed by or under this

subchapter—

A-48

(2) prior to sixty days after the plaintiff has given notice

of such violation (i) to the Administrator (ii) to any alleg-

ed violator of such requirement and (iii) to the State in

which the violation occurs.

FN11. Excerpt from Plaintiffs’ LCCA 60-day Notice Let-

ter dated February 17, 1993 (Plaintiffs’ Exhibit “‘1’’)

FN12. The 60-day notice provision, 42 U.S.C. § 6972(bX1)

of the RCRA was modeled upon § 304 of the Clean Air

Amendments of 1970. Hallstrom v. Tillamook County, 110

S.Ct. 304, 307 (1989). The SDWA 42 U.S.C. § 300j-8(b) has

also incorporated a 60-day notice provision patterned after

§ 304. Id.

FN13. 40 C.F.R. 135.12.

FN14. In Connecticut Coastal Fisherman’s Association

(CCFA), plaintiff CCFA brought suit against the owners

and operators of a trap and skeet shoot club alleging viola-

tions of the Clean Water Act and the RCRA.

FN15. Plaintiff organization’s name as reflected in its

Articles of Incorportion was actually “Connecticut Coastal

Fisherman’s Association.”

FN 16. The plaintiff in Connecticut Coastal Fisherman

submitted affidavits supporting its statement that the

CCSA changed its name to CCFA, but otherwise remain-

ed the same and no evidence was submitted to the contrary.

Accordingly, the Court held that there is no genuine issue

as to the material fact that the defendants received the

requisite notice of intent to sue from plaintiff. 777 F.Supp.

at 187.

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_ FN17. See, e.g., Student Public Interest Research Group

of New Jersey v. AT & T Bell Laboratories, 617 F.Supp

1190, 1194 (D.C.N.J.1985). In that case, the defendants fil-

ed a motion to dismiss for failure to state a claim upon

which relief can be granted, raising the issues whether

plaintiffs had standing, raising the argument that because

one of plaintiffs, Friends of Earth (FOE), should be preclud-

ed from participation in the suit because it failed to give

the requisite 60-day notice under the Federal Water Pollu-

tion Control Act. The defendant acknowledged that the

plaintiff Student Public Interest Research Group (SPIRG)

complied with the notice provisions. The court held “that

because one plaintiff served adequate notice, both plain-

tiffs ‘substantially complied’ with the requirements, and

the defendant’s right to adequate notice was preserved.”

Id. at 1193-94.

FN18. In the Save Our Community case, appellant Trini-

ty challenged the SOC’s Article III standing to sue seek-

ing enforcement of the Clean Water Act (CWA) under it

citizen suit provision. SOC sought to represent the interests

of its members.

FN19. In Lujan, suit was brought under section 10 of

the Administrative Procedures Act (APA), 5 U.S.C. § 702,

which requires a plaintiff to be within the “zone of in-

terests” that the aforesaid statute was designed to protect.

110 S.Ct. at 3186.

FN20. See eg., Save Our Community (SOC) v.

U.S.E.P.A., 971 F.2d 1155, 1160 n. 10 (5th Cir.1992)

(holding that the Clean Water Act (CWA) confers standing

to the limits of the Constitution since under the (CWA “any

citizen may commence a civil action.’”’)

A-50

FN21. 971 F.2d at 1160.

FN22. Warth v. Seldin, 442 U.S. 490, 511 (1975).

FN23. Public Citizen v. F.T.C., 869 F.2d at 1152.

FN24. United States v. Northeastern Pharm. & Chem. Co.,

579 F.Supp. 823, 846 n. 28 (W.D.Mo.1984).

FN25. The plaintiffs’ 60-day Notice Letter was sent to

the EPA, the United States Department of Justice, amd the

Louisiana Attorney General.

FN26. In response to the plaintiffs’ 60-day notice letter, the

defendants instead of sending the EPA list of water coolers

published in the January 18, 1990 Federal Register sent an

“EPA Fact Sheet.” Essentially, the defendants were given

the opportunity to comply but elected to send the “EPA Fact

Sheet.”

A-51

APPENDIX C

UNITED STATES CONSTITUTION, AMENDMENT X

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserv-

ed to the States respectively, or to the people.

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APPENDIX D

42 USC § 300j-8(bX1)

(b) Conditions for commencement of civil action; notice

No civil action may be commenced—

(1) under subsection (aX1) of this section respec-

ting violation of a requirement prescribed by or under

this subchapter—

(A) prior to sixty days after the plaintiff has

given notice of such violation (i) to the Ad-

ministrator, (ii) to any alleged violator of such re-

quirement and (iii) to the State in which the viola-

tion occurs, or

(B) if the Administrator, the Attorney

General, or the State has commenced and is

diligently posecuting a civil action in a court of

the United States to require compliance with such

requirement, but in any such action in a court of

the United States any person may intervene as

a matter of right; or

A-53

APPENDIX E

42 U.S.C. § 300(d)

(d) Costs; attorney fees; expert witness fees; filing of

bond

The court, in issuing any final order in any action

brought under subsection (a) of this section, may award costs

of litigation (including reasonable attorney and expert

witness fees) to any party whenever the court determines

such an award is appropriate. The court may, if a temporary

restraining order or preliminary injunction is sought, require

the filing of a bond or equivalent security in accordance with

the Federal Rules of Civil Procedure.

A-54

APPENDIX F

42 U.S.C. §§ 300j-21 - 300j-25

42 § 300j-21. Definitions

As used in this part—

(1) Drinking water cooler

The term “drinking water cooler’ means any

mechanical device affixed to drinking water supply

plumbing which actively cools water for human

consumption.

(2) Lead free

The term “lead free’ means, with respect to a |

drinking water cooler, that each part or component of

the cooler which may come in contact with drinking

water contains not more than 8 percent lead, except

that no drinking water cooler which contains any

solder, flux, or storage tank interior surface which may

come in contact with drinking water shall be considered

lead free if the solder, flux, or storage tank interior sur- |

face contains more than 0.2 percent lead. The Ad-

ministrator may establish more stringent requirements

for treating any part or component of a drinking water

cooler as lead free for purposes of this part whenever

he determines that any such part may constitute an

important source of lead in drinking water.

A-55

(3) Local educational agency

The term “local educational agency” means—

(A) any local educational agency as defined

in section 198 of the Elementary and Secondary

Education Act of 1965 (20 U.S.C. 3381),

(B) the owner of any private, nonprofit

elementary or secondary school building, and :

operating under the defense dependent’s education

system provided for under the Defense Dependent’s

Education Act of 1978 (20 U.S.C. 921 and following).

(4) Repair

The term “repair” means, with respect to a drink-

ing water cooler, to take such corrective actiun as is

necessary to ensure that water cooler is lead free.

(5) Replacement

The term “replacement”, when used with respect

to a drinking water cooler, means the permanent

removal of the water cooler and the installation of a

lead free water cooler.

(6) School

The term “school” means any elementary school

or secondary school as defined in section 198 of the

Elementary and Secondary Education Act of 1965 (20

A-56

U.S.C. 2854) and any kindergarten or day care facility.

(7) Lead-lined tank

The term “lead-lined-tank” means a water reser-

voir container in a drinking water cooler which con-

tainer is constructed of lead or which has an interior

surface which is not lead free.

§ 300j-22. Recall of drinking water coolers with lead-

lined tanks

For purposes of the consumer Product Safety Act [15

U.S.C.A. § 2051 et seq.], all drinking water coolers identified

by the Administrator on the list under section 300j-23 of this

title as having a lead-lined tank shall be considered to be

imminently hazardous consumer products within the mean-

ing of section 12 of such Act (15 U.S.C. 2061) 15 U.S.C.A.

§ 2061]. After notice and opportunity for comment, including

a public hearing, the Consumer Product Safety Commission

shall issue an order requiring the manufacturers and im-

porters of such coolers to repair, replace, or recall and pro-

vide a refund for such coolers within 1 year after October

31, 1988. For purposes of enforcement, such order shall be

treated as an order under section 15(d) of that Act (15 U.S.C.

2064(d)) [15 U.S.C.A. § 2064(d)).

§ 300j-23. Drinking water coolers containing lead

(a) Publication of lists

The Administrator shall, after notice and opportunity

for public comment, identify each brand and model of drink-

A-57

ing water cooler which is not lead free, including each brand

and model of drinking water cooler which has a lead-lined

tank. For purposes of identifying the brand and model of

drinking water coolers under this subsection, the Ad-

ministrator shall use the best information available to the

Environmental Protection Agency. Within 100 days after Oc-

tober 31, 1988, the Administrator shall publish a list of each

brand and model of drinking water cooler identified under

this subsection. Such list shall separately identify each brand

and model of cooler which has a lead-lined tank. The Ad-

ministrator shall continue to gather information regarding

lead in drinking water coolers and shall revise and republish

the list from time to time as may be appropriate as new in-

formation or analysis becomes available regarding lead con-

tamination in drinking water coolers.

(b) Prohibition

No person may sell in interstate commerce, or manufac-

ture for sale in interstate commerce, any drinking water

cooler listed under subsection (a) of this section or any other

drinking water cooler which is not lead free, including a lead-

lined drinking water cooler.

Any person who knowingly violates the prohibition con-

tained in subsection (b) of this section shall be imprisoned

for not more than 5 years, or fined in accordance with Title

18, or both.

(d) Civil penalty

The Administrator may bring a civil action in the ap-

A-58

propriate United States District Court (as determined under

the provisions of Title 28) to impose a civi] penalty on any

person who violates subsection (b) of this section. In any such

action the court may impose on such person a civil penalty

of not more than $5,000 ($50,000 in the case of a second or

subsequent violation).

§ 300j-24. Lead contamination in school drinking water

(a) Distribution of drinking water cooler list

Within 100 days after October 31, 1988, the Ad-

ministrator shall distribute to the States a list of each brand

and model of drinking water cooler identified and listed by

the Administrator under section 300j-23(a) of this title.

(b) Guidance document and testing protocol

The Administrator shall publish a guidance document

and a testing protocol to assist schools in determining the

source and degree of lead contamination in school drinking

water supplies and in remedying such contamination. The

guidance document shall include guidelines for sample

preservation. The guidance document shall also include

guidance to assist States, schools, and the general public in

ascertaining the levels of lead contamination in drinking

water coolers and in taking appropriate action to reduce or

eliminate such contamination. The guidance document shall

contain a testing protocol for the identification of drinking

water coolers which contribute to lead contamination in

drinking water. Such document and protocol may be revis-

ed, republished and redistributed as the Administrator deems

necessary. The Administrator shall distribute the guidance

A-59

document and testing protocol to the States within 100 days

after October 31, 1988.

Each State shall provide for the dissemination to local

educational agencies, private nonprofit elementry or secon-

dary schools and to day care centers of the guidance docu-

ment and testing protocol published under subsection (b) of

this section, together with the list of drinking water coolers

published under section 300j-23(a) of this title.

(d) Remedial action program

(1) Testing and remedying lead contamination

Within 9 months after October 31, 1988, each State

shall establish a program, consistent with this section, to

assist local educational agencies in testing for, and reme-

dying, lead contamination in drinking water from coolers

and from other sources of lead contamination at schools

under the jurisdiction of such agencies.

(2) Public availability

A copy of the results of any testing under paragraph

(1) shall be available in the administrative offices of the

local educational agency for inspection by the public, in-

cluding teachers, other school personnel, and parents. The

local educational agency shall notify parent, teacher, and

employee organizations of the availability of such testing

results.

A-60

(3) Coolers

In the case of drinking water coolers, such 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 within 15 months after Oc-

tober 31, 1988, all such water coolers in schools under the

jurisdiction of such agencies are repaired, replaced, per-

manently removed, or rendered inoperable unless the cooler

is tested and found (within the limits of testing accuracy) not

to contribute lead to drinking water.

§ 300j-25. Federal assistance for State programs

regarding lead contamination in school

drinking water

(a) School drinking water programs

The Administrator shall make grants to States to

establish and carry out State programs under section 300j-24

of this title to assist local educational agencies in testing for,

and remedying, lead contamination in drinking water from

drinking water coolers and from other sources of lead con-

tamination at schools under the jurisdiction of such agen-

cies. Such grants may be used by States to reimburse local

educational agencies for expenses incurred after October 31,

1988 for such testing and remedial action.

(b) Limits

Each grant under this section shall be used as! by the

1 So in original.

A-61

State for testing water coolers in accordance with section

300}-24 of this title, for testing for lead contamination in other

drinking water supplies under section 300j-24 of this title,

or for remedial action under State programs under section

300j-24 of this title. Not more than 5 percent of the grant

may be used for program administration.

There are authorized to be appropriated to carry out

this section not more than $30,000,000 for fiscal year 1989,

$30,000,000 for fiscal year 1990, and $30,000,000 for fiscal

year 1991.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.