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

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: Cheryl L. Pollak United States Magistrate Judge

REPORT AND RECOMMENDATION

On July 20, 2011, plaintiff New York Communities for Change ("NYCC") commenced this action against the New York City Department of Education ("DOE") and the New York City School Construction Authority (the "SCA"), alleging that there is widespread contamination in the New York City public schools caused by leaking polychlorinated biphenyls ("PCBs"), which are allegedly contained in light ballasts in T12 light fixtures present in numerous schools across the City. Plaintiff brings this action under the citizen suit provisions of the Toxic Substances Control Act ("TSCA"), 15 U.S.C. §§ 2601, et seq., and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901, et seq., to compel defendants to expedite removal of this dangerous condition. (Am. Compl.*fn1 ¶ 1). Defendants currently plan to replace the light fixtures over a ten-year period with more energy-efficient lights as part of the City's independent green energy initiative. (Id.)

On February 13, 2012, defendants filed a second motion*fn2 to dismiss plaintiff's claims, asserting several grounds: 1) the TSCA claim should be dismissed because the Environmental Protection Agency ("EPA") is already prosecuting the issue as demonstrated by a consent order entered into in January 2010; 2) plaintiff failed to comply with the notice requirements of TSCA and RCRA; 3) plaintiff's Amended Complaint fails to state a claim under either TSCA or RCRA; 4) since PCBs are regulated under TSCA, plaintiff's claim under RCRA must be dismissed; 5) plaintiff has no standing; and 6) plaintiff's claims are moot and barred by the doctrine of primary jurisdiction. On February 22, 2012, defendants' motion was referred to the undersigned to prepare a report and recommendation.*fn3

FACTUAL BACKGROUND

Plaintiff alleges that exposure to PCBs poses a serious health risk to children, by increasing their chances of developing diabetes, heart disease, liver disease, asthma, and childhood leukemia, among other diseases. (Am. Compl. ¶¶ 23, 25). Even low levels of exposure experienced over a period of time can pose a risk to a child's immune and nervous systems as the PCBs accumulate in the body. (Id. ¶¶ 22, 27).*fn4

In January 2010, defendants entered into an administrative Consent Agreement and Final Order ("CAFO") with the EPA to address the problem of caulk in New York City schools that had been found to contain PCBs. (Defs.' Mem.*fn5 at 6; see In the Matter of the City of New York, New York and the New York City School Construction Authority, Consent Agreement and Final Order, Dkt. No. TSCA-02-2010-9201; Greene Decl.,*fn6 Ex. A). As part of the CAFO, the defendants agreed to conduct a Pilot Program in which the defendants would select five schools to investigate and determine if there were other possible sources of PCBs in the caulk in the schools and to develop strategies to remediate and deal with these materials. (Defs.' Mem. at 7).

In August 2010, pursuant to the Pilot Program testing, it was discovered that there were high levels of PCB contamination leaking from, or that had historically leaked from, light ballasts found in T12 fluorescent light fixtures in the schools. (Am. Compl. ¶¶ 54, 55; Greene Dec., Ex. B). These T12 light fixtures, which had been used extensively in the construction of many older buildings, were manufactured with capacitors containing PCBs. (Compl. ¶¶ 29-31). When the light ballasts fail, the PCBs, which are in liquid form inside the capacitor, can leak out, spilling onto the classroom floor, desks, and chairs, exposing the children to contamination through touch or ingestion. (Id. ¶¶ 35, 36, 41, 67). Children can also be exposed through breathing PCB dust which may form when heat generated by the light ballasts causes the PCBs to volatilize into the air. (Id. ¶¶ 40, 42). Failure to properly abate an historic leak can leave spills and smudges of PCB liquid to which children can be exposed. (Id. ¶¶ 36, 55, 68, 73).

Plaintiff alleges that through the Pilot Program study, the DOE determined that at P.S. 199, on the Upper West Side of Manhattan, there were 181 actively leaking fixtures with leaking ballasts and 153 fixtures with currently non-leaking ballasts but with contamination from historical ballast leakage; and at P.S. 309 in Brooklyn, there were 114 replacement ballasts that, although labeled "No PCBs," contained leaked material from previous ballasts containing PCBs. (Id. ¶ 55). One sample found at P.S. 309 was 50 times the established health-based benchmark for kindergarten children. (Giorgio Decl.*fn7 ¶ 2, Ex. A).

Based on the levels of PCB contamination, defendants replaced all T12 light fixtures at three of the Pilot Program schools. (Am. Compl. ¶ 54, n.4). On December 1, 2010, the DOE disclosed that at least 772 school buildings in New York City were equipped with T12 lighting fixtures, which according to the DOE, "are very likely to contain PCB ballasts." (Id. ¶ 62, Ex. C). The DOE's estimate at that time was that there were as many as 564,000 T12 lighting fixtures with PCB ballasts still in use, with at least 100 such fixtures in over 90% of these schools. (Id.) Plaintiff reasons that because these ballasts have an average useful life of ten to fifteen years and the youngest ballasts still in use in the schools are 34 years old, over 500,000 of the DOE's PCB containing ballasts are at least 19 years beyond their life expectancy. (Pl.'s Mem. at 5 (citing Giorgio Decl. ¶ 4, Ex. C)). The EPA has stated that "as the ballasts age, the failure rate increases dramatically." (Giorgio Decl. ¶ 4, Ex. C).

In January and February 2011, EPA Region 2 conducted physical lighting inspections at 7 of the 740 schools identified as likely to contain PCB ballasts. (Am. Compl. ¶ 72, Ex. C). Leaking ballasts were found at every one of the inspected buildings. (Pl.'s Mem. at 5). "[T]he inspections showed active or unremediated historical PCB leakages in 63 of the 68 classrooms inspected -- a 93% active contamination rate." (Am. Compl. ¶ 73). At one school in Staten Island, PCB liquid that had leaked from the light fixtures above, was found to have "severely" contaminated the floor tiles with PCBs. (Id. ¶ 67). Plaintiff alleges that although the EPA's detailed inspections determined that 100% of the seven schools inspected had leaking or historically leaked PCBs, the DOE's cursory inspection, which involved "visible signs" on the exterior of the fixtures only revealed leaks at 145 of 740 buildings. (Id.¶¶ 69-71; Giorgio Decl. ¶¶ 5-6, Exs. D, E).

On February 23, 2011, the City announced a plan to comply with Local Laws 87 and 88 requiring greater energy efficiency. (Pl.'s Mem. at 7; Giorgio Decl. ¶ 7, Ex. F). Among other things, Local Law 88 mandates lighting system upgrades in City buildings, but does not mention PCBs in light fixtures. (Local Law 88 of 2009, Council Int. 973-A). Entitled the "NYC Schools Comprehensive Plan: Greener, Healthier Schools for the 21st Century" (the "Greener Schools Plan"), the Plan commits the City to upgrade every mechanical system in the City schools within a 10 year period. (Giorgio Decl., Ex. F).

Plaintiff NYCC brings this action pursuant to the citizen suit provisions of TSCA and RCRA, seeking to restrain the City defendants from further violating TSCA through the maintenance of leaking PCB light ballasts. Plaintiff argues that leaking PCB ballasts are "a clear violation of TSCA." (Pl.'s Mem. at 11). Plaintiff also contends that when leaking PCB ballasts have been replaced without proper remediation or disposal of PCBs, this also constitutes a violation of TSCA. (Id.) Plaintiff argues that given the overwhelming number of PCB leaks and improperly remediated PCBs discovered in the Pilot schools, "it is more than plausible ("indeed it is a certainty") that a PCB ballast is currently leaking in one of the . . . 700 [New York City] schools that [currently] contain T-12 units." (Id.) Indeed, the EPA has found "there is a prevalence" of leaking ballasts throughout the New York City schools. (Am. Compl., Ex. F).

Defendants move to dismiss, raising jurisdictional challenges to plaintiff's claims and arguing that plaintiff has failed to state a claim under Federal Rule of Civil Procedure 12(b)(6).

DISCUSSION

A. Legal Standard: Motion to Dismiss Pursuant to Rule 12(b)(1)

In determining whether there is subject matter jurisdiction over a claim, the court must examine whether the complaint states "a right to recover under the laws of the United States." Goldman v. Gallant Sec., Inc., 878 F.2d 71, 73 (2d Cir. 1989) (per curiam) (citing Bell v. Hood, 327 U.S. 678, 681 (1946)). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); see also Rivera v. Ndola Pharmacy Corp., 497 F. Supp. 2d 381, 386-86 (E.D.N.Y. 2007).

When considering a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, the court must "accept as true all material factual allegations in the complaint." Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citations omitted); see also Rivera v. Ndola Pharmacy Corp., 497 F. Supp. 2d at 387; Country Rock Cafe, Inc. v. Truck Ins. Exch., 417 F. Supp. 2d 399, 402 (S.D.N.Y. 2006). While the court will "'draw all reasonable inferences in favor of plaintiff,'" Rivera v. Ndola Pharmacy Corp., 497 F. Supp. 2d at 387 (quoting Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (quoting Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000))), but see Forbes v. State Univ. of N.Y. at Stony Brook, 259 F. Supp. 2d 227, 232 (E.D.N.Y. 2003) (citations omitted) (holding that the court will not draw inferences favorable to the party asserting jurisdiction), the plaintiff bears the burden of proving by a preponderance of the evidence that subject matter jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Makarova v. United States, 201 F.3d at 113; Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996).

In analyzing subject matter jurisdiction under Rule 12(b)(1), the court must "give the plaintiff's factual allegations closer scrutiny" than it would in the context of a motion to dismiss pursuant to Rule 12(b)(6), "[b]ecause subject-matter jurisdiction focuses on the court's power to hear the claim." Physicians Comm. For Responsible Medicine v. U.S. Environmental Protection Agency, 451 F. Supp. 2d 223, 228 (D.C. Cir. 2006) (citing cases). The court is "not limited to the allegations contained in the complaint," id. at 228; see also Coalition for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003) (holding that a court may "consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts"), and may consider materials outside the pleadings to resolve disputed jurisdictional facts. Makarova v. United States, 201 F.3d at 113; Country Rock Cafe, Inc. v. Truck Ins. Exch., 417 F. Supp. 2d at 402.

B. The Statutes - TSCA and RCRA

The TSCA was enacted to deal with the "unreasonable risk of injury to health or the environment" posed by man-made chemical substances. 15 U.S.C. § 2601(a)(2). As of 1979, TSCA banned the manufacture, processing and distribution of PCBs and restricts their use under certain conditions. 15 U.S.C. §§ 2605(e)(2)(A) and (e)(3)(A). The EPA has promulgated regulations for storing, handling, and disposing of PCBs and PCB waste materials. See 40 C.F.R. § 761. Under TSCA, a citizen may bring a suit against any person who is alleged to be in violation of Section 2605 or any rule promulgated thereunder. 15 U.S.C. § 2619(a)(1).

RCRA is a "comprehensive environmental statute that governs the treatment, storage, and disposal of solid and hazardous waste." Mehrig v. KFC W., Inc., 516 U.S. 479, 483 (1996) (citing City of Chicago v. Environmental Defense Fund, 511 U.S. 328, 331-32 (1994)). RCRA's primary purpose "is to reduce the generation of hazardous waste and to ensure the proper treatment, storage, and disposal of that waste which is nonetheless generated, 'so as to minimize the present and future threat to human health and the environment.'" Id. (quoting 42 U.S.C. § 6902(b)). Under RCRA, a citizen may bring suit "against any person, including . . . any past or present generator . . . who has contributed or who is contributing to the past or present handling . . . of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment." 42 U.S.C. § 6972(a)(1)(B). Although the regulation of PCBs falls under TSCA, plaintiff argues that citizen suits may be brought under RCRA to restrain acts that "may present an imminent and substantial endangerment to health or the environment." (Pl.'s Mem. at 9 (citing 42 U.S.C. § 6972(a)(1)(B))).

C. The EPA is Diligently Prosecuting PCBs in the NYC Schools

Defendants first argue that plaintiff's claim under TSCA should be dismissed for lack of

subject matter jurisdiction because the EPA has previously issued an order pursuant to Section 2615 of TSCA, which requires defendants to promulgate a city-wide plan to remediate PCBs in the City schools. (Defs.' Mem. at 10). Thus, defendants argue that because plaintiff cannot show that the EPA is not "diligently prosecuting" the issue, plaintiff's suit is barred for lack of subject matter jurisdiction. (Id.)

1. Standard for Determining "Diligently Prosecuting"

Both the TSCA and RCRA contain limitations on citizen's suits where a state or administrative agency is actively pursuing an action under the statute. See 15 U.S.C. § 2619(b);

42 U.S.C. § 6972(b)(2)(C)(i). Section 2619 of TSCA provides: No civil action may be commenced --

(1) Under subsection (a)(1) of this section to restrain a violation of this chapter or rule or order

(B) if the Administration has commenced and is diligently prosecuting a proceeding for the issuance of an order under section 2615(a)(2) of this title to require compliance with this chapter, or with such rule or order.

15 U.S.C. § 2619(b).

RCRA also contains a prohibition on citizen suits where a state is diligently prosecuting an action. Specifically, Section 6972(b)(2)(C)(i) of RCRA provides:

No action may be commenced under subsection (a)(1)(B) of this section if the State. . .

(1) has commenced and is diligently prosecuting an action under subsection (a)(1)(B) of this section. . . .

42 U.S.C. § 6972(b)(2)(C)(i). Under RCRA, citizen suits "are prohibited only as to the scope and duration of the administrative order." Carrier Corp. v. Piper, 460 F. Supp. 2d 853, 857 (W.D. Tenn. 2006).

Although neither TSCA or RCRA or their implementing regulations explicitly define "diligently prosecuting," courts have examined similar language found in the Clean Water Act ("CWA"). See, e.g., Friends of the Earth v. Consol. Rail Corp., 768 F.2d 57, 63 (2d Cir. 1985). In examining the analogous citizen suit provision under the CWA, the Supreme Court in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, declared that "citizen suits are proper only 'if the Federal, State, and local agencies fail to exercise their enforcement responsibility.'" 484 U.S. 49, 60 (1971) (quoting S. Rep. No. 414, 92d Cong., 1st Sess. 64 (1971), reprinted in 1972 U.S.C.C.A.N. 3668, 3730). Similarly, the Fourth Circuit in The Piney Run Preservation Association v. The County Commissioners of Carroll County, Maryland, analyzed the same section in the CWA, holding that citizen plaintiffs bear a high burden in demonstrating that a government agency has failed to diligently prosecute a violation. 523 F.3d 453, 459 (4th Cir. 2008), cert. denied, 555 U.S. 885 (2008). In examining the "diligently prosecuting language" of Section 505(b)(1)(B) of the CWA, 33 U.S.C. § 1365(b)(1)(B), a district court in the District of South Carolina held that "Congress intended to prohibit citizen suits where the governmental enforcement agency is diligently prosecuting or has diligently prosecuted a judicial action to enforce the same alleged violations of a particular permit, standard, or limitation." Friends of the Earth, Inc. v. Laidlaw Envtl. Services (TOC), Inc., 890 F. Supp. 470, 486 (D.S.C. 1995).

The main purpose of this limitation on citizen suits is to allow state and federal government agencies to remedy violations. "[T]he citizen suit is meant to supplement rather than to supplant governmental action.'" New York Coastal Fisherman's Ass'n v. N.Y.C. Dept. of Sanitation, 772 F. Supp. 162, 165 (S.D.N.Y. 1991) (quoting Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. at 60). "Citizen lawsuits under the CWA have a merely 'interstitial' role; Congress did not intend for them to be even 'potentially intrusive' on agency discretion." Karr v. Hefner, 475 F.3d 1192, 1197 (10th Cir. 2007). In Gwaltney, the Supreme Court explicitly stated that since "the great volume of enforcement actions [are intended to] be brought by the State, . . . citizen suits are proper only 'if the Federal, State and local agencies fail to exercise their enforcement responsibility.'" 484 U.S. at 60. Where the concerns of an analogous citizen's suit have already been addressed by a state or federal agency, the courts favor deference to the agency's plan. N. & S. Rivers Watershed Ass'n, Inc. v. Town of Scituate, 949 F.2d 552, 557 (1st Cir. 1992).

Courts have made it clear, however, that the provision "does not require government prosecution to be far-reaching or zealous," Karr v. Hefner, 475 F.3d at 1197; nor can a citizen plaintiff "overcome the presumption of diligence merely by showing that the agency's prosecution strategy is less aggressive than he would like or that it did not produce a completely satisfactory result." The Piney Run Pres. Ass'n v. The Cnty. Comm'rs Of Carroll Cnty., MD, 523 F.3d at 459 (citing Karr v. Hefner, 475 F.3d at 1197); see also N. & S. Rivers Watershed Ass'n v. Scituate, 949 F.2d at 558 (holding that "[m]erely because the State may not be taking the precise action [plaintiff] wants it to or moving with the alacrity [plaintiff] desires does not entitle [plaintiff] to injunctive relief"). A citizen may not "seek to recover fines and penalties that the government has elected to forego." Atlantic States Legal Found. v. Eastman Kodak Co., 933 F.2d 124, 127 (2d Cir. 1991).*fn8 Indeed, courts have held that when the agency has entered into a consent decree with a violator, courts "must be particularly deferential to the agency's expertise," The Piney Run Pres. Assoc. v. The Cnty. Comm'rs of Carroll Cnty., MD, 523 F.3d at 459, and the fact that the "agency has entered into a consent decree that establishes a prospective schedule of compliance does not necessarily establish lack of diligence." Id. at 459 (citing Weinberger v. Romero-Barcelo, 456 U.S. 305, 318 (1982)). Thus, even though a violation continues despite the State's conduct does not mean that the State is not acting with diligence. The diligent prosecution bar "does not require that the EPA succeed; it requires only that the EPA try, diligently." Supporters to Oppose Pollution, Inc. v. Heritage Group, 973 F.2d 1320, 1324 (7th Cir. 1992) (emphasis in original). "Particularly when the EPA chooses to enforce the CWA through a consent decree, failure to defer to its judgment can undermine agency strategy." Karr v. Hefner, 475 F.3d at 1197.

As the Second Circuit stated in Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co., "[i]f the state enforcement proceeding has caused the violations alleged in the citizen suit to cease without any likelihood of recurrence -- has eliminated the basis for the citizen suit -- we believe that the citizen action must be dismissed." 933 F.2d at 127. Thus, a citizen suit "may not challenge the terms of the settlement . . . unless there is a realistic prospect that the violations alleged in [the citizen's suit] complaint will continue notwithstanding the settlement." Id. at 127. However, in Hudson River Fisherman's Ass'n v. County of Westchester, 686 F. Supp. 1044, 1052 (S.D.N.Y. 1988), the court found no preclusion where the government's consent order did not apply to the damage claimed by plaintiff. The court held that because it could not be said "with any confidence that the conclusion of the government's litigation [would] address or encompass the specific claims of the plaintiff," plaintiff's citizen suit was not barred. Id.

2. Analysis

Citing the CAFO, defendants contend that here the EPA and the defendants entered into a binding consent order, pursuant to Section 2615 of TSCA, thus demonstrating that the EPA is diligently prosecuting the issue of PCBs in the light ballasts. (Defs.' Mem. at 11-12 (citing Green Decl., Ex. A)). Although conceding that the CAFO was implemented to address the problems presented by PCBs in the caulk, defendants argue that the CAFO requires them to take actions to address other sources of PCBs. (Id. at 11). Thus, defendants contend that, as part of the Pilot Program, they were required to track down other sources of PCBs and develop measures to address them. (Id. at 12). Defendants note that the CAFO requires them to submit a Citywide PCB Management Plan to the EPA once the Pilot Program is completed and that this Plan must set forth a "[s]chedule for remedial action that maximizes health protection consistent with City resources and avoidance of disruption of school activities," and will also be subject to peer review and public comment. (Id. (quoting Green Decl., Ex. A at III(C)(e))). Among other things, the Plan must, "[w]here necessary for risk reduction, investigat[e] . . . potential significant non-caulk sources and appropriate remedial action." (Id.) Thus, defendants argue that while the CAFO does not explicitly address PCBs in light ballasts, "the CAFO clearly encompasses these ballasts." (Id. at 12). Defendants also contend that the Greener Schools Plan to replace all potential PCB ballasts was developed in response to the EPA's "strong recommendation that defendants commence a program to phase out PCB ballasts." (Id. at 13). Defendants argue that given the EPA's strategy to avoid the disruption of school activities and the need to consider an overall strategy to deal with the greatest risks first, to allow plaintiff's suit to proceed would "supplant the carefully balanced, risk-based strategy negotiated by the Defendants and the EPA." (Id.)

In response, plaintiff cites the plain language of the CAFO which states that it relates solely to PCB caulk:

This is a civil administrative proceeding for the assessment of a civil penalty pursuant to Section 16(a) of [TSCA] . . . for the resolution of violations of regulations promulgated under the Act concerning use of polychlorinated biphenyls ("PCBs") in caulk ("PCB Caulk"). . . . (Pl.'s Mem. at 26 (citing Greene Decl., Ex. A (Preliminary Statement) (emphasis added))). Even the Pilot Study was established to "determine the most effective strategies for assessing and reducing potential exposure to PCBs contained in PCB Caulk. . . ." (Id. (citing Greene Decl., Ex. A at II(A)) (emphasis added)). Although the defendants were required to address non-caulk sources discovered during the Pilot Study, as plaintiff points out, that requirement was limited to non-caulk sources in the five Pilot Study schools; there is nothing to suggest that leaking PCB ballasts in other schools were intended to be addressed. (Pl.'s Mem. at 27).

A review of the language of the CAFO itself makes it clear that the EPA was not reviewing the existence of PCBs in ballasts, nor does the CAFO require defendants to implement any system-wide correction measures with respect to the ballast violations. (See Greene Decl., Ex. A). While the defendants were arguably required to address the violations found during the Pilot Study, there is nothing in the CAFO that requires the defendants to take any steps with respect to leaking ballasts that may exist in any school beyond the five Pilot Study schools. Indeed, the PCB Caulk Plan only requires the defendants to implement a Citywide PCB Management Plan "[i]f agreement is reached" between the EPA and defendants. (Greene Decl., Ex. A at III(C)(a)). If no agreement is reached, the Plan explicitly provides that defendants "will have no obligation to implement a Citywide PCB Management Plan under this CAFO and Work Plan . . . ." (Id.) Even though the defendants may be voluntarily establishing a plan for the ultimate replacement of these lights in the distant future,*fn9 the absence of any mandatory requirements for compliance in the CAFO demonstrates that the EPA was not pursuing, much less "diligently prosecuting," the issue of PCBs in light ballasts. See Hudson River Fisherman's Ass'n v. Cnty. of Westchester, 686 F. Supp. at 1052 (holding that "diligent prosecution" does not bar a citizen's suit where "it appears that the Government's effort does not address the factual grievances asserted by private attorneys general").

Indeed, the EPA's April 13, 2011 Statement to the City Council Committee acknowledges that there is no enforcement mechanism in place with respect to the light ballasts.

(Giorgio Decl., Ex. C). In its Statement, the EPA explains that during the course of the caulk inspection, it discovered the existence of leaking ballasts and "recommended" that the City "develop a plan for assessing and addressing leaking ballasts in its schools city-wide." (Id. at 2). In commenting on the City's Greener Schools Plan, the EPA stated: "EPA recognizes this plan as a step in the right direction. However, we have been consistent in saying that ten years is too long for the removal of all PCB-containing lighting fixtures throughout the school system." (Id.) The EPA explicitly "recommend[ed] that the lighting replacements be completed in no more than five years." (Id. at 1).

Contrary to defendants' arguments, this is not a case where the EPA is actively investigating and pursuing the issue of PCBs in lighting fixtures. The EPA's own Statement reflects that the defendants' current plan to address PCBs in lighting fixtures is purely voluntary and, in fact, fails to comport with what the EPA has recommended. Where, as here, the EPA has not commenced an investigation into this particular hazard, let alone initiated any sort of formal proceedings to remediate this particular hazard, it cannot be said that there is a "diligent prosecution." Defendants' proposal to remove the ballasts over a ten-year period does not compel a different result because the CAFO does not provide for any consequences in the event that defendants fail to revise the plan in accordance with the EPA's recommendations or even fail to implement their current ten-year plan entirely. Therefore, the Court does not have confidence that if defendants comply with the CAFO, the violations plaintiff complains of will cease. See Atlantic States Legal Found. v. Eastman Kodak Co., 933 F.2d at 127.

Accordingly, the Court respectfully recommends that defendants' motion to dismiss plaintiff's TSCA claim as precluded by the EPA's "diligent prosecution" be denied.

D. Failure to Comply with Notice Requirements

Defendants next contend that plaintiff failed to provide adequate notice of its intention to

file suit under TSCA and RCRA, in accordance with 15 U.S.C. § 2619(b)(1)(A) and 42 U.S.C. § 6972(b)(2)(A). Defendants assert that because pre-suit notice is a jurisdictional prerequisite, plaintiff's complaint should be dismissed for lack of subject matter jurisdiction. See City of Newburgh v. Sarna, 690 F. Supp. 2d 136, 151-53 (S.D.N.Y. 2010), aff'd in part, appeal dismissed in part, 406 Fed. Appx. 557 (2011).

1. Standards for Notice Requirements

Under TSCA, a citizen plaintiff is required to provide notice of any alleged violation to the EPA and to the person allegedly committing the violation at least sixty (60) days prior to the commencement of any citizen suit. 15 U.S.C. § 2619(b)(1)(A). Pursuant to 40 C.F.R. § 702.62(a), the notice must include "sufficient information to permit the recipient to identify" the following: 1) the specific provision of TSCA alleged to have been violated; 2) the activity alleged to constitute a violation; 3) the person responsible for the alleged violation; 4) the location of the alleged violation; 5) the date or dates of the alleged violation; and 6) the name, address, and telephone number of the citizen providing the notice.

Similarly, under RCRA, a plaintiff pursuing a claim based on imminent and substantial endangerment must provide notice to the EPA, the State and the alleged contributor to the endangerment at least ninety (90) days in advance of commencing suit. 42 U.S.C. § 6972(b)(2)(A). Like the TSCA notice requirements, the RCRA notice must provide "sufficient information to permit the recipient to identify the specific permit, standard, regulation, condition, requirement, or order which has been violated," along with information about the activity alleged to constitute a violation, the persons responsible for the violation, the dates of the violation, and information identifying the individual giving notice. 40 C.F.R. § 254.3(a). The purpose of ...


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