United States District Court, N.D. New York
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
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.
A. The Original Complaint and Memorandum-Decision and
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
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
"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
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
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 plaintiff
claims the certification and substantive requirements of the TSCA are
Third, in the seventh cause of action, plaintiff claims that
defendants breached contractual duties to Arbor Hill members, as
third-party beneficiaries of the RLPHRA and CDA grants used to fund the
abatements, by failing to comply with the certification and substantive
mandates of TSCA and implementing federal regulations.
A. Rule 12(b) Standard
Defendants have moved to dismiss the second amended complaint pursuant
to Fed.R.Civ.P. 12(b)(1) and (6). In deciding a Rule 12(b) motion, a
court "must accept the allegations contained in the complaint as true,
and draw all reasonable inferences in favor of the non-movant; it
should not dismiss the complaint `unless it appears beyond a reasonable
doubt that the plaintiff can prove no set of facts in support of [her]
claim which would entitle [her] to relief.'" Sheppard v.
Beerman. 18 F.3d 147, 150 (2d Cir. 1994) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)): see also Kaluczky v. City
of White Plains. 57 F.3d 202, 206 (2d Cir. 1995). However,
conclusory allegations that merely state the general legal conclusions
necessary to prevail on the merits and are unsupported by factual
averments will not be accepted as true. See, e.g., Clapp v.
Greene, 743 F. Supp. 273, 276 (S.D.N.Y. 1990); Albert v.
Carovano, 851 F.2d 561, 572 (2d Cir. 1988).
In the Memorandum-Decision and Order dismissing the original
complaint, plaintiff was instructed that an amended complaint "must
include . . . sufficient allegations that particular members of [Arbor
Hill] had lead-based paint abatement work performed and are
suffering concrete and particular, and actual or imminent, injury
therefrom." Arbor Hill. 250 F. Supp.2d at 62. As noted, this
holding emanated primarily from the failure to allege, in the original
complaint, that particular members of Arbor Hill had abatement work
performed on their homes. Under the liberal pleading stage in which the
litigation finds its home, it appears as though plaintiff has now cured
this standing defect.
In the second amended complaint, plaintiff details the abatement work
peformed for six Arbor Hill members. Accepting as true the allegations
made, abatement work was performed at the homes of all of the named
members, and inspection subsequent to the work found that all hazards had
not been abated. Thus, plaintiff has complied with the first part of the
instruction in the Memorandum-Decision and Order, to wit,
identify specific members of Arbor Hill who have had abatement work
Defendants argue, however, that "[t]he injuries alleged in the [s]econd
[a]mended [c]omplaint are, at best, speculative or hypothetical and do
not confer standing to plaintiff." (Docket No. 40, p. 4.) Defendants then
proceed to dissect the allegations made with respect to each of the six
members of Arbor Hill, concluding ultimately that plaintiff has not
satisfied the standing requirements because: (1) the regulations defining
and governing lead hazards were not plead to have been followed by the
independent inspector; and/or (2) the allegations of generalized health
or safety concerns were speculative.
It is worth noting initially that plaintiff need only satisfy the
individual standing requirement of the larger associational
standing requirements with respect to one of its members.
See Sierra Club v. SCM Corp., 747 F.2d 99, 107 (2d Cir. 1984).
Taking as true the allegations with respect to the first named member in
the second amended complaint the Bennett family it is
clear that plaintiff has satisfied the standing requirements.
Specifically, it must be accepted that: (1) abatement work was performed
on the Bennett home in August 2001; (2) following the abatement work, in
July 2002, one of the Bennett children saw his blood lead level increase
after he played in and around the family yard; (3) a member of the Albany
County Department of Health, who had found hazards prior to the abatement
work, found them again in August 2002 after the work had been completed;
EPA-certified inspector, presumably hired by Arbor Hill,
found high levels of lead in the soil in the family's backyard, in
October 2002 and again in April 2003; and (5) another of the Bennett
children saw her blood lead level increase in March 2003.
Such allegations are specific enough to satisfy the directive in the
earlier Memorandum-Decision and Order. Though defendants appear
to argue that any concerns alleged by the Arbor Hill members are vague
and speculative, plaintiff has plead the various dangers associated with
exposure to lead, which allegations also must be accepted as true at this
stage of the litigation. Indeed, plaintiff should not have to wait until
an Arbor Hill member dies, or becomes gravely ill, before commencing
suit. A hired inspector which, by the way, is alleged to have
been employed in all or nearly all of the cases of the named members
certified by the EPA who has allegedly found hazards to exist,
combined with the dangers associated with exposure to lead, is certainly
an adequate basis to allege a concrete and imminent danger.
Defendants' other argument that the independent inspection is
not a sufficient basis on which to base health concerns, because it was
not alleged to have been conducted in strict accordance with the
guidelines governing and defining lead hazards is also rejected.
At the pleading stage, plaintiff does not have to actually prove that
substantive violations of the TSCA occurred, much less the injuries
flowing therefrom. Rather, at this stage the sole concern is whether the
allegations, if true, could form the basis of a valid claim. As noted,
the allegations here could form the basis of a valid claim. Defendants
may renew their arguments at the summary judgment stage and, if
necessary, at trial. Plaintiff has cured the standing defects in the
C. Scope of Relief
In the original complaint, Arbor Hill sought, as relief for the alleged
TSCA violations, an order directing defendants to remedy the allegedly
improperly abated homes, and to medically monitor those affected. Because
the TSCA authorizes citizen suits only to restrain ongoing and future
violations of its substantive provisions, this relief was stricken from
the complaint. In the second amended complaint, plaintiff asks the court
to issue 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 . . . by ordering [d]efendants to take all actions
necessary to complete those lead-based paint activities in the
manner required by TSCA and EPA regulations." (Docket No. 33, Prayer For
Relief, ¶ 2.)
Insofar as this relief is sought with respect to ongoing and future
abatement activities, it is entirely permissible. However, ongoing and
future work were not the only activities plaintiff sought to encompass in
this relief. By classifying some of the abatement work such as
that done on the homes of the Arbor Hill members named in the second
amended complaint as "[in]complete," plaintiff did not mean that
the workers had not yet finished the tasks assigned to them and still
had, for example, some equipment at the homes. Rather, according to
plaintiff, because some work had been attempted, abatement activities had
begun, and because the ensuing work was allegedly performed improperly,
it was not yet completed.
This is clearly an attempt to fit within the directives of the
Memorandum-Decision and Order some of the very same relief
an order directing defendants to remedy the improper abatements
that has already been rejected, dressed up in slightly different
language. Correctly or not, the past abatement activities of defendants
"completed," and cannot therefore be considered "ongoing" so as to
come within the scope of the TSCA. As was noted at oral argument, the
TSCA authorizes only the restraint, or stoppage, of ongoing activities.
Ordering defendants back to the homes where abatement activity has
ceased, to do more work, would not be a restraint or a stoppage; it would
be ordering an affirmative act. Thus, to the extent this relief seeks to
restrain ongoing and future violations of the TSCA, it is permissible; to
the extent it seeks to encompass work performed and completed in the
past, it is not.*fn3
D. New Causes of Action
In the second amended complaint, plaintiff asserts three new causes of
action, the last two of which were presumably designed to secure relief
(an order directing defendants to re-abate homes) held to be
unavailable under the TSCA. The first new cause of action
alleging defendant Albany Community Development Agency was not properly
certified is not a subject of the motion to dismiss, and will not
therefore be addressed herein. The propriety of the second and third new
causes of action alleging violations of the RLPHRA and CDA
pursuant to 42 U.S.C. § 1983, and a third-beneficiary
contract claim however, has been the subject of extensive
briefing and will be addressed.
1. Section 1983 claim
Pursuant to Section 1983, plaintiff claims that defendants had a policy
and practice of violating the RLPHRA, and the CDA and its implementing
regulations, by failing to adhere to the TSCA standards incorporated
therein. Both sides appear to agree that the success of
this claim is dependent upon a showing that the relevant statutory
provisions create a privately enforceable right. Particularly, three
requirements must be satisfied: (1) "Congress must have intended that the
provision in question benefit the plaintiff; (2) "the plaintiff must
demonstrate that the right assertedly protected by the statute is not so
Vague and amorphous' that its enforcement would strain judicial
competence"; and (3) the statute must impose a binding obligation on the
States." Blessing v. Freestone, 520 U.S. 329, 340-41,
117 S.Ct. 1353, 137 L.Ed.2d 569 (1997): Rodriguez v. DeBuono,
162 F.3d 56, 60 (2d Cir. 1998). If all three requirements are satisfied,
"there is a rebuttable presumption that the right is enforceable under
Section 1983[,] [and] [t]he burden then shifts to the defendant to show
that by express provision or other specific evidence from the statute
itself [Congress] intended to foreclose such enforcement." Evac, LLC v.
Pataki, 89 F. Supp.2d 250, 255-56 (N.D.N.Y. 2000) (internal
quotations and citations omitted). It is here found that the analysis and
reasoning in Santiago ex rel. Muniz v. Hernandez, 53 F. Supp.2d 264
(E.D.N.Y. 1999), are persuasive, and that plaintiffs Section 1983
claims fail as a matter of law.
In Santiago, the court held that "neither the . . .[CDA],
the RLPHRA, nor their attendant regulations, provide[d] [the] plaintiffs
with an enforceable right under 42 U.S.C. § 1983 or a private right
of action against [the municipality defendant] for its failure to cure
the lead-based paint hazards in [the] plaintiffs' home simply
because [the municipality defendant] was a recipient of federal funds
designed to allow [it] to address such hazards where found in pre-1978
privately owned residences." Id. at 266. The court first
pointed out that "the [CDA] and RLPHRA were intended to benefit the
general public rather than a special class of persons," and that "[t]he
Supreme Court has held that being a member of the general public is
insufficient to satisfy the intended beneficiary inquiry." Id.
at 272 (citations omitted).
Even if the plaintiffs could be considered intended beneficiaries of
the statutes, the court found that the rights they sought to enforce were
vague and amorphous, noting that the activities listed by the statutes as
permissible uses of funding were not mandatory. Id. at 272-73.
The court also noted that "[a] portion of the [CDA] provides an
administrative enforcement scheme to address noncompliance for all
community development programs, including CDBG funded programs,"
indicating a Congressional intent that HUD "bear the primary
responsibility for ensuring compliance with the [CDA], including the
RLPHRA," which was enacted as a part of the CDA. Id. at 273
(citing 42 U.S.C. § 5311; 24 C.F.R. § 570.910-911, 982.406). The
court then rejected the argument that the regulations implementing the
statutes provided any enforcement right, noting that such regulations
applied only to "HUD-associated housing,. . . not to federal
funds expended on lead-based paint activities." Id.
Plaintiff contends that the court in Santiago took an overly
restrictive view of the statutes' policy goals and objectives, and failed
to "take pains to analyze the [specific] statutory provisions in detail
in light of the entire legislative enactment." (Docket No. 42, p. 11.)
Plaintiff then provides an extraordinarily detailed review of the
provisions and regulations relating to the two statutes, which "taken
together . . . are intended to benefit at-risk, low-income
individuals, such as [Arbor Hill's] members and their families,
who live in homes where RLPHRA and CDBG-funded lead-based
paint activities are conducted, by ensuring that the work is performed
safely, reliably, and effectively." Id. at 13.
Notwithstanding that the TSCA adequately ensures all of these things,
the provisions and regulations quoted by plaintiff are statements
relating to the purposes of funding, not mandatory instructions on what a
grantee is to do with such funding. Indeed, the
specific RLPHRA provision cited by plaintiff in the second amended
complaint as providing part of the basis for the Section 1983 claim,
42 U.S.C. § 4852(e)(5), provides that a grant "may be used to . . .
ensure that risk assessments, inspections, and abatements are carried out
by certified contractors in accordance with Section 2682 of Title 15."
The other provision of the RLPHRA cited in the amended complaint,
42 U.S.C. § 4851 b, is a definitions section.
While it is true that the Second Circuit has interpreted one provision
of the CDA to confer a private enforceable right, see Chan v. City
of N.Y., 1 F.3d 96, 106 (2d Cir. 1993) (holding that
42 U.S.C. § 5310 grants private right to laborers and mechanics employed with
CDA grant money to enforce federally recognized prevailing wage rates),
it has cautioned more recently that Chan was limited to the one
statutory provision there at issue, see King v. Town of
Hempstead, 161 F.3d 112, 114 (2d Cir. 1998). The court in
King held that the language of 42 U.S.C. § 5301 (c),
"an entirely different provision" of the statute which mostly "sets forth
general goals for programs funded by [the CDA], including housing code
enforcement," was insufficient to create a binding obligation in
satisfaction of the third Blessing requirement. Id. at 114-15.
Here, the one CDA section cited by plaintiff,
42 U.S.C. § 5304(b)(6), states that before a grant applicant is
approved, it must "certify to the satisfaction of the Secretary that
. . . the grantee will comply with the other provisions of this chapter
and with other applicable laws." While the obligation is stated in
mandatory terms, it is an obligation of the grantee to the Secretary,
not of the grantee to individuals whose homes were or will be abated
using CDA funds. Accordingly, under Section 5304, affected persons may
challenge HUD's approval of a grant application, see, e.g., Society
Hill Towers Owners' Ass'n v. Rendell. 210 F.3d 68 (3d Cir. 2000);
Davis v. U.S. Dep't of Hous. and Urban Dev., 627 F.2d 942 (9th Cir.
Fox v. U.S. Dep't of Hous. and Urban Dev., 468 F. Supp. 907,
914 (E.D Pa. 1979); NAACP Santa Rosa Sonoma County Branch v.
Hills, 412 F. Supp. 102 (N.D. Cal. 1976), but not the manner in
which the grantee, after approval, uses the funds in its lead-based
paint abatement program. Even assuming the federal regulations attendant
to the two statutes could alone provide for an enforceable private
right,*fn4 nothing therein changes this conclusion.
The Supreme Court has made clear "that unless Congress speaks with a
clear voice, and manifests an unambiguous intent to confer individual
rights, federal funding provisions provide no basis for private
enforcement by § 1983." Gonzaga Univ. v. Doe, 536 U.S. 273,
280, 122 S.Ct. 2268, 165 L.Ed.2d 458 (2002). Such a clear intent has not
been manifested in the statutory provisions and regulations cited by
plaintiff as the basis for a Section 1983 action in the second amended
2. Contract claim
In the third new cause of action, plaintiff seeks specific performance
of abatements in accordance with federal law and regulations, i.e., to
have re-abated homes that were allegedly improperly abated. He claims
such performance is a duty owed to Arbor Hill members, as third party
beneficiaries to the alleged contracts governing the grants used to fund
the lead-based paint abatement program, given to defendants by
HUD. Whether this
claim is viable depends upon whether the grant agreements can be
considered "contracts," and, if so, whether the members of Arbor Hill are
third-party beneficiaries of such contracts.
It is here found that whether the grant agreements are properly
considered contracts, or the members of Arbor Hill third-party
beneficiaries, are largely irrelevant inquires, as there already exists
direct contracts between such members and the contractors that actually
performed the abatement work. Plaintiff claims that it is primarily
concerned with getting the work done properly, and it would appear that
the straightest path to resolving that concern is an action premised on
those direct contracts, rather than the massive end-around
plaintiff attempts to employ in the apparently never-ending quest
to maintain litigation against these particular defendants.
In addition, just because members of Arbor Hill benefit by virtue of
the grant agreements being executed properly does not automatically mean
that they have enforceable rights pursuant to such agreements. As a
general rule, "a party who contracts with a government agency to do an
act or render a service is generally not subject to contractual liability
to a member of the public for consequential damages resulting from
performance or failure to perform," unless the agreement provides for
such liability. Guardians Ass'n v. Civil Serv. Comm'n of City of
N.Y., 463 U.S. 582, 603 n.24, 103 S.Ct. 2231, 77 L.Ed.2d 866 (1983)
(plurality opinion, J. White). The terms of the grant agreements here do
not provide for such liability.
Rather, the terms essentially require defendants, in order to receive
federal funding, to comply with federal law when utilizing those funds.
"`[M]ake whole' remedies are not ordinarily appropriate in private
actions seeking relief for violations of statutes passed by Congress
pursuant to its `power under the Spending Clause to place conditions on
of federal funds.'" Id. at 595 (quoting Pennhurst
State Sch. v. Halderman, 451 U.S. 1, 15, 101 S.Ct. 1531,
67 L.Ed.2d 694 (1981)). If the grant recipient is unable or unwilling
to comply, HUD is the entity with recourse against the grantee on the
basis of the grant agreement. Giving such recourse to the tail-end
homeowners who eventually have their homes abated under the programs
funded by the grants, however, "is an entirely different matter." Id.
at 603 n.24.
Instead, as noted, these homeowners have their proper recourse through
the individual contracts they enter into with the contractors hired by
defendants to do the abatement work. Why plaintiff refuses to the
tune of filing three complaints and enduring two motions to dismiss
without even getting to discovery to acknowledge this is beyond
comprehension. Even defendants have suggested such a course of action, as
well as other potential avenues of recourse, such as tort actions or
breach of warranty claims. See Docket No. 40, p. 25 n.10;
Docket No. 48, pp. 7-9. Indeed, defendants have conceded that there are
"lots" of such cases on the state court dockets "all the time."
Id. at 9. Though no opinion is here expressed as to the
propriety or chance of success of such claims, it would appear those
types of claims would benefit the members most likely to be injured by
past TSCA violations than would this case.
In fact, notwithstanding that plaintiff's TSCA claim survives
defendants' motion to dismiss in a limited respect, serious, serious
doubts are here expressed as to who is really benefitting from this
lawsuit. The only relief that can be had here in federal court is an
injunction against ongoing and future violations of the TSCA. Though it
casts aspersions on the value of the statute beyond its role as a mere
procedural guide for how to conduct abatement activities, relief for past
violations of the statute, if proven, is simply not available.
Even if it is assumed that plaintiff was unaware of this before
initially filing suit, such legal ignorance was most certainly eradicated
through the Memorandum-Decision and Order dismissing the original
It is indeed a laudable goal to ensure that defendants are complying,
both in the present and in the future, with the statutes governing
lead-based paint abatement activities. However, it seems fairly safe
to assume that this lawsuit was prompted by the concerns, expressed or
solicited, of families who already had abatement work performed in and
around their homes. It is the welfare of people living in homes where the
abatement work was allegedly improperly performed people such as
the Bennetts and the other five named members of Arbor Hill in the second
amended complaint that presumably (and hopefully) served as the
catalyst for this lawsuit. Such assumptions are indeed backed up by the
relief that was sought in the original complaint to have
allegedly improper abatements fixed and the people affected medically
That being the case, it is difficult to conceive of how this lawsuit,
here in federal court, through the causes of action asserted, will in any
way benefit the alleged victims of past violations. True, such people may
well feel vindication of some sort that, assuming substantive statutory
violations are proven, those who follow them will avoid living in an
unsafe environment. That, however, will do nothing to ease the fears and
concerns over lead hazards that still exist in their own homes. It will
do nothing to ensure that their own present exposure to lead does not
lead to serious medical danger. If it is the principle of the matter that
is nonetheless relevant, plaintiff hardly needs a court order instructing
defendants to comply with the law.
Nevertheless, under the law, plaintiff may be entitled to injunctive
relief with respect to ongoing and future violations of the TSCA.
Accordingly, assuming plaintiff is able to survive even more motion
practice at summary judgment, he will be permitted to prove that the
alleged violations are presently ongoing. If plaintiff so
proves the violations, he will be entitled to a declaration that
defendants are foreclosed from continuing lead-based paint
abatement activities in violation of federal law.
In the second amended complaint, plaintiff has cured the
standing-related defects that plagued the original complaint. However,
any order directing defendants to re-abate homes (assuming the
substantive violations are proven) is beyond the scope of relief offered
by the TSCA. Plaintiff also cannot maintain the Section 1983 and
third-party beneficiary contract claims.
Accordingly, it is
1. Defendants' motion to dismiss the second amended complaint is
GRANTED in part and DENIED in part;
2. The sixth and seventh causes of action, and all
relief requested incident thereto, and paragraph two in the Prayer for
Relief to the extent it encompasses abatement work already completed, are
3. Dismissal of the first, second, third, fourth, and
fifth causes of action is DENIED; and
4. Defendant shall file and serve an answer to the first, second,
third, fourth, and fifth causes of action on or before
February 20, 2004.
IT IS SO ORDERED.