Document Type

Working Paper

Publication Date

4-23-2016

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; SRPN Subject Matter eJournals; Sustainability Research & Policy Network; Social Responsibility of Business eJournals; Environmental & Natural Resources Law eJournals; Management Research Network; Health Law eJournals

Abstract

Because polychlorinated biphenyls PCBs present a clear risk to public health and the environment Congress enacted a special provision in the Toxic Substances Control Act TSCA requiring the US Environmental Protection Agency to establish proper methods for their disposal Responding to public fears however a number of communities enacted ordinances that directly or indirectly banned the local siting of PCB disposal facilities If a proliferation of such bans were permitted to stand such local actions could jeopardize the federal regulatory scheme by aggravating the very hazards that Congress sought to alleviate by enacting TSCA Instead of protecting the public these obstructions might have the paradoxical result of encouraging illegal disposal and midnight dumping The article contends that while the language of TSCA is inartful the legislative history demonstrates that Congress intended the federal regulatory scheme to set minimum standards for safe PCB disposal Congress however also preserved the authority of state and local governments to set more stringent disposal standards that are consistent with the congressional goal of safe PCB disposal In many instances state or local siting bans would clearly frustrate the goal of safe disposal and thus should be preempted by implication On the other hand such bans could stand where they complement the objective of safe disposal such as instances where a ban is necessary based on unique geological or hydrological conditions to prevent environmental injury

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