Change v.

• Decision Date: 29 August 2012
• Docket Number: 11 CV 3494 (SJ)
• Parties: NEW YORK COMMUNITIES FOR CHANGE, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION and NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, Defendants.
• Court: U.S. District Court — Eastern District of New York

NEW YORK COMMUNITIES FOR CHANGE, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION andNEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, Defendants.

11 CV 3494 (SJ)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

August 29, 2012

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.¹ ¶ 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 motion² 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.³

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).⁴

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.⁵ 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.,⁶ 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 tovolatilize 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.⁷ ¶ 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 ballastshave 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. TruckIns. 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 ...