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New York Communities For Change v. New York City Department of Education

March 26, 2013

NEW YORK COMMUNITIES FOR CHANGE, PLAINTIFF,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION, AND
NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, DEFENDANTS.



The opinion of the court was delivered by: Johnson, Senior District Judge:

ORDER ADOPTING REPORT AND RECOMMENDATION

This case is about polychlorinated biphenyl ("PCB"). PCBs are a broad class of manmade chemicals used in various industrial applications from 1929 until 1979, when they were banned. According to the Amended Complaint (and, incidentally, the Environmental Protection Agency ("EPA" or the "Agency")), PCBs were demonstrated to cause a host of physical ailments, from compromising the immune, reproductive and endocrine systems to causing cognitive development issues and cancer.*fn1 On top of that, PCBs are slow to break down. Once released into the environment, they can travel back and forth between air, earth, and water continually, and can do so over considerable distances. Before they were banned, however, they were heavily used in many New York City Public School buildings ("Schools"), where some products containing PCBs indisputably remain. Defendants New York City Department of Education ("DOE") and New York City School Construction Authority (collectively "the City" or "Defendants") agree that exposed PCBs ought to be removed from the Schools, and have undertaken to remove them. The problem is that the City wishes to do so in double the time recommended by the EPA. This schedule was met with ire by New York Communities for Change ("NYCC" or "Plaintiff"), a coalition of low and moderate income communities whose aims are social and economic justice. Several NYCC members have children attending the Schools, and seek an order compelling the City to abate past, present and future PCB leaks. Given that the City has already agreed to remediate PCB exposure in all Schools, the instant legal wrangling is for all practical purposes a dispute over how quickly these chemicals must be removed and to whom the City should be held responsible in that regard.

BACKGROUND

Unless otherwise indicated, the facts as set forth in this decision are taken from the Amended Complaint.

In January 2010, the City entered into a Consent Agreement and Final Order ("CAFO") with the EPA, the purpose of which was to examine the caulks (a PCB-containing product) found in schools and to work on a system of remediation of caulk-containing products. Caulk-containing products were identified as "any semi-drying or slow-drying plastic material used to seal joints or fill crevices around window frames or panes, doors, or other building components." (Green Decl. Ex A at I.(1).)

Defendants were required to select a small sample of schools, identify those with the presence of PCBs, and develop an abatement strategy over a 10-year period. A sample of five schools followed, and PCBs were found present not only in window frame caulking, as had essentially been expected, but also in certain leaking fluorescent light ballasts*fn2 referred to as "T12 fixtures," which are not the subject of the CAFO.

Upon discovery of the leaking T12 fixtures, the City undertook to remove them from the three pilot schools in which they were found. At P.S. 199 in Manhattan, 181 fixtures contained leaking ballasts, and 153 fixtures that were themselves not leaking were contaminated from prior leakage. At P.S. 309 in Brooklyn, 114 fixtures that were labeled "No PCBs" were paradoxically found to have been contaminated. By December 1, 2010, the City reported to the EPA that, of the 1,250 Schools and related DOE buildings, 772 of them contained T12 fixtures. The City estimated that 90% of these buildings had more than 100 T12 fixtures, and that 50% of the buildings were erected between 1950 and 1978, during which PCB use was legal. The other half were built prior to 1950, but had fluorescent lighting fixtures installed thereafter.

The problem is not the presence of T12 fixtures per se -- not all T12 fixtures contain PCBs. But, at this point, it is not known exactly how many schools have leaking T12 fixtures that either contain PCBs or were contaminated by since-removed leaking T12 fixtures containing PCBs. It is worth noting, however, that T12 fixtures have a life expectancy of 10 to 15 years, during which the leakage rate is 10 percent. After 15 years, the failure rate increases significantly. Additionally,

PCBs are persistent, bioaccumulative pollutants. This means that they are most harmful when exposure accumulates over a prolonged period of time. Since the risk of harm increases with increased exposure, the best protection is to remove leaking ballasts immediately.

Proper Maintenance, Removal, and Disposal of PCB-Containing Fluorescent Light Ballasts, http://www.epa.gov/epawaste/hazard/tsd/pcbs/pubs/ballasts.htm (last viewed March 26, 2013). Because PCBs have been illegal since 1979, any PCB-containing ballast present in a School building will have been there for more than double its life expectancy with an ever-increasing failure rate. Any of those which experienced leakages could have been spreading gas into the air for a considerable time, and could still be doing so. And any leak of PCBs from the ballast constitutes an unauthorized disposal.

News coverage of PCBs in the Schools led one Staten Island teacher to alert her union representative to a light fixture in her P.S. 36 classroom that, a year earlier, had been leaking. Soon after, on Friday January 7, 2011, the City conducted an inspection of the floor tiles and confirmed that they were contaminated with PCBs. Parents of at least 75% of the students at P.S. 36 kept their children home on the following Monday, demanding that the City replace all lights in P.S. 36 not found to be PCB-free. The City first closed two, then ten classrooms at P.S. 36, before finally agreeing to inspect the entire school. By February 23, 2011, the City announced a voluntary plan to replace T12 lighting throughout all New York City schools within 10 years.

This plan was unacceptable to 41 of the 51 members of the New York City Council (the "Council"), who wrote to the EPA a letter objecting to the City's 10-year plan and asking instead that the City complete the work in two years. The Council indicated that the task was economically feasible and that the lighting would in any event be replaced in the near future due to regulations promulgated by the Department of Energy that will soon make obsolete both the ballasts and the bulbs.

The EPA, although not vested with the authority to reject the City's proposal, agreed that ten years was too long a period to delay, and recommended the City be limited to five years. Indeed, the EPA's own spot inspections revealed schools containing PCBs up to 20,000 times the regulatory limit. All of the schools cited by the EPA were elementary schools, meaning that the youngest of school children were being exposed to dangerous levels of PCBs.

On April 12, 2011, the Council and the EPA jointly urged the City to adopt a five-year plan. The following day, Plaintiff served its Notice of Intent Sue on the City and the EPA under the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq., ("TSCA"). On August 17, 2011, Plaintiff served its Notice and Intent to Sue under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq., ("RCRA") (collectively the "Notices"). Plaintiff seeks a declaration that the City is in violation of the TSCA and that PCBs present an imminent threat to health and the environment. Plaintiff also seeks an order compelling the City to immediately remediate all PCB leaks in the Schools.

Defendants move to dismiss on five grounds: (1) that Plaintiff may not sue under the TSCA if the EPA is "diligently" seeking compliance with same; (2) that Plaintiff's Notices were insufficient; (3) Plaintiffs fail to state a claim; (4) Plaintiffs lack standing; and (5) Plaintiff's claim is barred by the doctrine of primary jurisdiction in that resolution of the claim is "placed within the special confidence" of the EPA. Alternatively, Defendants seek a stay.

The motion was referred to Magistrate Judge Cheryl Pollak who, on August 29, 2012, issued a Report and Recommendation ("Report"). Judge Pollak recommends denying Defendants' motion to dismiss on all offered grounds. Defendants, in turn, object on all grounds.

DISCUSSION

I. Diligent Prosecution

Citizen suits under both the TSCA and RCRA are barred if the Administrator of the EPA is "diligently prosecuting" a proceeding seeking compliance with its mandates. 15 U.S.C. § 2619(b)(1)(B); 42 U.S.C. § 6972(b)(2)(C)(i). The RCRA additionally bans citizen suits if the State, with or without the EPA, is seeking same. Id. The City argues that the instant action is barred because the EPA is already engaged in prosecution aimed at abating PCB exposure in the Schools via the CAFO entered into between the EPA and the City. However, Judge Pollak found that the CAFO does not deal with the issue of PCBs in light ballasts but only those found in caulking. Indeed, the preliminary statement to the CAFO defines the earlier proceeding as one "concerning the use of polychlorinated biphenyls ('PCBs') in caulk ('PCB Caulk')." Defendants do not dispute this. Instead, they argue that the CAFO requires that in addition to PCB Caulk remediation, the CAFO requires that "significant non-caulk sources" be investigated and remedied. However, the provision relied upon by Defendants is one that does not require but merely contemplates the inclusion of non-caulk sources:

[The City] and the EPA shall meet to discuss implementing the Preferred Citywide Remedy in all Relevant Schools [the "Meeting"]. . . If an agreement is reached on a Citywide PCB Management Plan, [the City's] shall commence implementation of the Citywide PCB Management Plan, pursuant to the schedule contained in the plan. (Green Decl. Ex. A. at III.(C)(a) (emphasis added).) Only if an agreement is reached does the subsection requiring non-caulk PCBs to be investigated come into play. (Id. at III(C)(c)(6).) This renders inapposite Carrier Corp. v. Piper, 460 F. Supp. 2d 853 (W.D. Tenn. 2006), the case cited by the City in its objection to the Report, because in Carrier Corp., an agency order specifically bound the remediating party to remove subsequently-discovered contaminants. Id. at 859.

Defendants also argue that Judge Pollak failed to give credit to (1) the procedures leading up to the Meeting and (2) the overall "progressive structure" of the CAFO. The City argues that either have the potential to encapsulate the remediation of leaking PCB-containing ballasts. However, the potential for something to happen does not on its own indicate the likelihood of its occurrence, and certainly does not imply any degree of "diligence" in pursuing a particular outcome. Diligent prosecution is required.

In arguing that the EPA is in fact "diligently prosecuting" this issue, the City relies on a December 15, 2010 letter from the EPA, which memorializes the City's intent to expand the scope of the pilot study to include lighting at one single school. In that same letter, however, the EPA is actually imploring the City to both expand and expedite its inspections, and not just limit immediate removal of PCB-containing ballasts to the schools in which they were incidentally discovered:

I realize my request that the City undertake a broad program to remove and replace PCB-containing lighting fixtures in all public schools in an expedited time frame is a major undertaking. . . . The EPA does not agree with your characterization of the potential health risks posed by PCB ballasts nor do we agree with your conclusion that there is no need for an expedited program to remove PCB containing lighting fixtures from schools. . . . (Id. at 1 (emphasis added).) The letter went on to address how PCBs particularly affect lighting fixtures, as opposed to door or window frame caulking:

EPA is concerned with the consequences of ballast failures. The manufacture of PCB ballasts has been banned since 1978. The youngest PCB containing ballasts have been in service for approximately 32 years. Ballasts containing PCB have an average useful life of 50,000 hours. As they age, the failure rate for such ballasts increases dramatically. The actual service life of ballasts is dependent on the operating temperature and the service cycle of the fixtures. PCB lighting ballasts usually did not contain a heat sensing element that would cut power if the ballast overheated. Without such a protective device, used ...


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