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.)
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 ...