TSCA Citizen Suit And Public Nuisance Claims Dismissed By EDNY

On May 19, the Eastern District of New York (the Court) dismissed claims brought by the Town of Oyster Bay, New York (the Town) under Section 20(a)(1) of the Toxic Substances Control Act (TSCA)¹ and for public nuisance damages.² As to the former, the Court held (1) the defendant's preliminary sampling activities did not require United States Environmental Protection Agency (EPA) approval under TSCA and thus did not give rise to a TSCA citizen suit claim, and (2) plaintiff's claim to restrain defendant's polychlorinated biphenyl (PCB) remediation plan was not ripe, as the complaint did not allege that the plan, which had not yet been implemented, would be commenced without receiving the required EPA approvals. As to the latter, the Court held that the discovery of more drums and alleged contamination at the site did not constitute a new public nuisance that resets the statute of limitations, and as a result, plaintiff's claim for public nuisance damages were time-barred.