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MAIR v. CITY OF ALBANY

January 22, 2004.

AARON MAIR, as President of Arbor Hill Concerned Citizens Neighborhood Association, Plaintiff, -vs-, CITY OF ALBANY, NEW YORK; GERALD JENNINGS, in his official capacity as Mayor of Albany; DEPARTMENT OF DEVELOPMENT AND PLANNING; GEORGE LEVEILLE, in his official capacity as Commissioner of the Department of Development and Planning; ALBANY COMMUNITY DEVELOPMENT AGENCY; and JOSEPH MONTANA, in his official capacity as Director of the Albany Community Development Agency, Defendants


The opinion of the court was delivered by: DAVID HURD, District Judge Page 2

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

  Plaintiff Aaron Mair ("plaintiff), as President of the Arbor Hill Concerned Citizens Neighborhood Association ("Arbor Hill"), filed this second amended complaint against defendants, alleging various causes of action under the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2601 et seq., under 42 U.S.C. § 1983, to enforce alleged federal rights under the Residential Lead-Based Paint Hazard Reduction Act ("RLPHRA"), 42 U.S.C. § 4851 and the Community Development Act ("CDA"), 42 U.S.C. § 5301 et seq., and under state common law, all arising out of lead-based paint abatement activities conducted by defendants on homes in certain neighborhoods of the City of Albany.

  Defendants filed a motion to dismiss the second amended complaint pursuant to Fed.R.Civ.P. 12. Plaintiff opposed. Oral argument was heard on September 26, 2003, in Albany, New York. Decision was reserved.

  II. BACKGROUND

  A. The Original Complaint and Memorandum-Decision and Order

  On August 6, 2002, Arbor Hill filed a complaint against defendants, seeking relief for the alleged failure to use properly certified workers in the inspection, risk assessment, abatement, and post-abatement activities and analysis of homes identified as posing lead-based paint hazards, and alleging that the work performed was in violation of the TSCA and governing federal regulations. (Docket No. 1.)*fn1 In support of the allegations, however, Arbor Page 3 Hill identified none of its members by name and/or address that had abatement work performed on his or her home.

  For relief, Arbor Hill principally sought to permanently enjoin defendants from conducting lead-based paint activities except in accordance with the TSCA and federal regulations. Arbor Hill also sought, however, to have defendants ordered to take other appropriate actions to remedy, mitigate, or offset the harm to the public caused by the alleged violations, including but not limited to: (1) ensuring that all residential dwellings that were improperly abated are safe for human habitation; and (2) conducting medical monitoring of those residents who may be exposed to the grave health risks of lead poisoning.

  By Memorandum-Decision and Order filed March 18, 2003, certain relief, including these two measures of relief, were stricken from the complaint as being beyond the scope of the TSCA, which only authorizes citizen suits "to restrain" ongoing and future violations of its substantive provisions. See Arbor Hill, 250 F. Supp.2d at 59-60. The remainder of the complaint was dismissed without prejudice for lack of standing because of Arbor Hill's failure to particularly identify any of its members as among those who allegedly had abatement work performed.*fn2 id. at 54-59. Specifically, while it was recognized that "general factual allegations of injury will suffice" to survive a motion to dismiss in a case brought under the citizen suit provision of an environmental statute, such allegations must nonetheless allege Page 4 "injury to someone, not just in general, and not just in the purely hypothetical or speculative sense." Id. at 57.

  B. The Second Amended Complaint

  After filing an amended complaint, plaintiff was granted permission to file a second amended complaint, which he did on May 27, 2003. In the second amended complaint, plaintiff attempts to cure the standing defects that plagued the original complaint and to modify the relief requested that was stricken, and also adds three new causes of action.

  1. Member-specific allegations

  In the second amended complaint, which is a stunning 183 paragraphs, not including 10 paragraphs in the "Prayer for Relief section, plaintiff alleges that six named members of Arbor Hill had lead-based paint abatement work performed on their homes. Generally, it is alleged that, after the work was performed, each member discovered, on his or her own or through an independent inspector, that lead hazards still remained, and that each feared allowing family members to play in or around the allegedly hazardous areas.

  2. Modified relief requested

  In the second amended complaint, plaintiff also modifies the portion of the requested relief that had been stricken from the original complaint. Specifically, rather than seeking to have defendants remedy allegedly deficient abatement work and medically monitor affected members of Arbor Hill, plaintiff now seeks an order to "[r]estrain [d]efendants' ongoing violations of TSCA at homes where lead-based paint activities have begun but have not been completed pursuant to the requirements of the TSCA . . . by ordering [d]efendants to take all actions necessary to complete those lead-based paint Page 5 activities in the manner required by TSCA and EPA regulations." (Docket No. 33, Prayer For Relief, ¶ 2.)

  3. New causes of action

  In the Memorandum-Decision and Order dismissing the original complaint, the parties were warned that the disposition therein was "not to be interpreted to mean that individual members of plaintiff, if the statutory violations [of the TSCA] were eventually proven, will not have claims that may involve remedying the improper abatements or being medically monitored. Those individual plaintiffs may well have those rights vindicated under other laws, federal and/or state." Arbor Hill, 250 F. Supp.2d at 60. Plaintiff has apparently read this language as a prompt to assert three new causes of action in the second amended complaint.

  First, in the fifth cause of action, plaintiff claims defendant Albany Community Development Agency, which allegedly performed abatement activities, was not an EPA-certified firm, which is a further violation of the TSCA.

  Second, in the sixth cause of action, plaintiff claims that, pursuant to 42 U.S.C. § 1983, defendants had a policy and custom of depriving Arbor Hill members of the federal rights guaranteed to them under the RLPHRA and CDA. It was under those two statutes that defendants received funding for the abatement activities, and under which ...


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