ELR Citation: ELR 20651
No(s). B-86-220 (D. Md. Apr 16, 1986)

The court holds that Maryland's polychlorinated biphenyls (PCBs) disposal requirements are not preempted by the Toxic Substances Control Act (TSCA). After initially holding that the legal issues presented are ripe for review and that summary judgment is appropriate, the court holds that §18(a)(2)(B) of TSCA does not preempt Maryland's PCB disposal requirements. Congress explicitly provided for federal preemption of state law in TSCA §18, but limited this by a parenthetical reservation and three other exemptions. The parenthetical reservation allows states to regulate the disposal of toxic substances even if the EPA Administrator has promulgated disposal rules under §6(a)(6). The court rules that the parenthetical exemption from federal preemption in §18(a)(2)(B) for rules imposing a requirement "described in" §6(a)(6) incorporates all regulations concerning PCB disposal even though TSCA §6(e) explicitly regulates PCBs. The court rejects plaintiff's argument that the fact that the federal PCB regulations were promulgated under §6(e), not §6(a)(6), makes the reservation inapplicable. The phrase "described in" does not have the same meaning as "promulgated under," and a regulation can prescribe requirements described in §6(a)(6) while being promulgated pursuant to §6(e). Moreover, the legislative history does not suggest Congress intended that preemption should be applied differently to PCB regulation than to other toxic substances. Although cases cited by plaintiff suggest that state PCB disposal regulations are preempted by TSCA, contrary case law exempting state PCB regulations from federal preemption more accurately reflects congressional intent not to preclude reasonable state PCB controls. As the parenthetical exemption applies to exclude Maryland's PCB disposal requirements from federal preemption, the court does not decide the applicability of the other three preemption exemptions enumerated in §18.

Counsel for Plaintiff
Ethan L. Bauman, Michael Schatzow, Arnold M. Weiner
Melnicove, Kaufman, Weiner & Smouse
Charles Ctr. South, 36 S. Charles St., Baltimore MD 21201-3060
(301) 332-8500

Counsel for Defendants
Stephen J. Sachs, Attorney General
Richard Hall, Michael C. Powell, Kathie A. Stein,
Charles R. Taylor, Ralph St. Tyler, Ass't Attorneys General
Department of Law, 7 N. Calvert St., Baltimore MD 21202
(301) 576-6300