Arbor Hill Citizens Ass'n v. City Albany

• Decision Date: 17 March 2003
• Docket Number: No. 02-CV-1016.,02-CV-1016.
• Citation: 250 F.Supp.2d 48
• Parties: ARBOR HILL CONCERNED CITZENS NEIGHBORHOOD ASOCIATION, Plaintiff, v. 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.
• Court: U.S. District Court — Northern District of New York

250 F.Supp.2d 48

ARBOR HILL CONCERNED CITZENS NEIGHBORHOOD ASOCIATION, Plaintiff, v. 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.

No. 02-CV-1016.

United States District Court, N.D. New York.

March 17, 2003.

COPYRIGHT MATERIAL OMITTED

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Natural Resources Defense Council, Inc., Attorneys for Plaintiff, New York City, Michelle B. Alvarez, Nancy S. Marks, Lawrence M. Levine, Of Counsel.

Marc S. Gerstman, Albany, NY, Gary S. Bowitch, Castleton-on-Hudson, NY, for Plaintiff.

Nixon Peabody, LLP, Attorneys for Defendants, Albany, NY, Sheri L. Moreno, Frank L. Amoroso, Robert S. McEwan, Of Counsel.

Office of Corporation Counsel, City of Albany, Department of Law, Albany, NY, Gary F. Stiglmeier, Of Counsel.

MEMORANDUM-DECISION and ORDER

HURD, District Judge.

I. INTRODUCTION

Plaintiff Arbor Hill Concerned Citizens Neighborhood Association ("plaintiff) pursuant to the Toxic Substances Control Act ("TSCA"), 15 U.S.C. § 2619(a)(1)(B), brought suit against defendants, alleging various violations of federal regulations governing lead-based paint activities, see infra, and seeking injunctive and other relief. Defendants filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff opposes. Oral argument was heard on January 24, 2003, in Albany, New York. Decision was reserved.

II. FACTUAL BACKGROUND

The following are the facts relevant to this motion, taken from plaintiffs Complaint, or, where undisputed, from the moving papers.

A. PARTIES

Plaintiff "is an unincorporated, not-forprofit association of residents who live in the Arbor Hill neighborhood, adjacent to downtown Albanyf, New York]. For more than twenty years, [plaintiff] and its members have worked to protect and improve the quality of life and public health of the community." (Complaint, Docket No. 1, 110).

Defendant City of Albany, New York is a municipality in New York State that has received federal grant money to develop a program aimed at reducing lead-based paint hazards in low-income housing within its city limits. Defendant Gerald Jennings was, and is, the Mayor of the City of Albany at all times relevant to this lawsuit.

Defendant Department of Development and Planning is a department within the City of Albany's Division of Housing and Community Development. Defendant George Leveille is its Commissioner.

Defendant Albany Community Development Agency is responsible for housingrelated activities in the City of Albany, and played a substantial role in the lead-based paint hazard abatement program. Defendant Joseph Montana is its Director.

B. BACKGROUND AND ALLEGTIONS

The hazards of exposure to lead are well documented by plaintiff. "Lead is highly toxic and can affect virtually every organ and system in the body, particularly the central nervous system. At high levels of exposure, lead can severely damage the brain and kidneys in adults and children, causing miscarriage, and damage [to] reproductive organs." (Complaint, Docket No. 1, 1127). Children are especially vulnerable to lead poisoning, which in them can lead to serious health complications, or where their exposure levels are lower, to other physical and mental problems. (Id. at If 28). In fact, "childhood lead poisoning is the most common environmental disease of young children, eclipsing all other environmental health hazards found in the residential environment." (Id. at ¶ 26). "[Housing and Urban Development] has determined that lead-based paint in housing is the major remaining source of exposure and is responsible for most cases of childhood lead poisoning today." (Id. at H 30). The inspection, risk assessment, and analysis of lead hazards are heavily regulated, as are those performing such tasks. (Id. at ¶¶ 18-25).

Government officials "ha[ve] determined that the most severe lead poisoning problem in Albany County is in the census tracts for the Arbor Hill, West Hill and South End sections of the City of Albany." (Id. at 1132). In April 1995, New York State, and eventually, the City of Albany, "received a six million dollar grant from [Housing and Urban Development] to evaluate and reduce lead-based paint hazards in private housing rented or owned by lowincome families" in these neighborhoods. (Id. at ¶ 34). According to plaintiff, 355 residential dwellings were abated under this grant. (Id. at ¶ 36). In January 1998, defendants received funding from another grant to New York State to develop a program funding the inspection and remediation of lead-based paint hazards in moderate to low income housing in areas of Albany referred to as Arbor Hill, West Hill, and South End. (Memorandum of Law in Support of Defendants' Motion to Dismiss, Docket No. 19, p. 2) ("Def. Memo, at ___").

The following year, in late May 1999, defendant City of Albany applied for its own Housing and Urban Development grant, which it was awarded in the form of a two-year, $4,000,000 grant, the contract period to begin on January 1, 2000. (Id.). According to plaintiff, 292 residential dwellings were abated under this grant. (Complaint, Docket No. 1, 1139). Thereafter, a second two-year grant was obtained by defendants, this time in the amount of $3,000,000, the contract period to begin on December 12, 2001. (Def. Memo, at 2). Under all of the above grants, defendants were responsible for overseeing the inspection, assessment, and abatement of the lead hazards in selected housing, as well as the administration of post-abatement procedures, including the collection and testing of soil samples. Apparently, most of the work was performed by private contractors who signed contracts with the persons whose homes were selected for abatement.

Defendants contend that as a condition of being awarded these grants, the City of Albany "has been, and continues to be, required to use certified contractors to perform all of the work under the [lead abatement] [p]rogram." (Id.). Because New York State has no certification program, federal regulations require defendants to use only EPA-certified individuals to conduct all activities related to the abatement of lead hazards. (Complaint, Docket No. 1, 1121). Defendants claim, however, that they "obtained a federal waiver allowing [them] to use an out-of-state training program for certification of its contractors, namely the training program established by the State of Connecticut." (Def. memo at 3). After March 1, 2000, federal regulations mandated that individuals and firms engaged in leadbased paint activities, including activities described in 40 C.F.R. §§ 745.225— 745.227, 745.233, dealing with inspections, risk assessments, abatements, and postabatement clearance, must receive certification by the EPA.

Plaintiff contends that defendants have shown "blatant disregard" for these regulations by using uncertified inspectors or risk assessors to conduct inspections and prepare inspection reports; uncertified risk assessors to conduct and make a report of risk assessments; uncertified individuals to conduct lead-based paint abatements; and uncertified inspectors or risk assessors to perform post-abatement clearance procedures. Defendants have also allegedly failed to have properly certified supervisors on site during all work site preparation and post-abatement procedures; to have properly certified individuals prepare a written occupant protection plan; to use certified inspectors or risk assessors to collect and analyze paint chips, dust, or soil samples, and to perform all or most of the above in compliance with the substantive requirements governing lead-based paint activities. (Complaint, Docket No. 1, ¶¶ 49-89). Defendants dispute all of these allegations, contending that at all times they used properly certified individuals to conduct lead-based paint activities, and that the work performed was satisfactory and compliant with federal regulations.

The Complaint does not mention the names of any of plaintiffs members, let alone allege that any specific member had lead-based paint work performed at his or her home. However, it is generally alleged, for example, that "[p]laintiff is a citizens group whose members reside in the Lead Paint Abatement Program's target areas and are harmed by [defendants' failure to comply with federal law and regulations designed to protect public health from the serious risks associated with lead-based paint activities," and that " [individual members of [plaintiff] live and recreate in residential dwellings in Arbor Hill, South End, and West Hill that have been abated, or, on information and belief, will be abated under, or whose owners are eligible and wish to apply to the Lead Paint Abatement Program." (Complaint, Docket No. 1, HIT 5, 11).

Attached to the Complaint is a copy of a "Notice of Intent to Sue under Section 20(a)(1)(B) of the Toxic Substances Control Act, 15 U.S.C. § 2619(a)(1)(B)," addressed to individual defendants Jennings, Leveille, and Montana. (Id., Exhibit A). Among other things, contained in the notice are various specific addresses at which plaintiff contends the above violations occurred. No names of plaintiffs members are mentioned as being owners of or recreators in or around said properties. Again, only general allegations are made. The only real addition this notice makes seems to be specific addresses.

III. DISCUSSION

In moving to dismiss the Complaint, defendants contend that plaintiff has not demonstrated standing on the pleadings, that part of the relief sought by plaintiff is beyond the scope allowed by the TSCA, and that plaintiff, as an unincorporated association, has no capacity under New York State law to bring this suit.

A. STANDI...