ELR Citation: ELR 21044
No(s). 85-3092 (5th Cir. Nov 1, 1985)

The court holds that the Toxic Substances Control Act (TSCA) preempts a local ordinance designed to prohibit plaintiff's polychlorinated biphenol (PCB) treatment, storage, and disposal within the St. James Parish.

The court first holds the district court had jurisdiction under the federal question statute and caselaw. Plaintiff's Supremacy Clause and Commerce Clause claims present sufficiently substantial federal questions so as to confer federal jurisdiction. The court then holds the ordinance violates the Supremacy Clause by regulating an area expressly and impliedly preempted under TSCA. The challenged ordinance replaced an earlier ordinance that the parish concedes had problems under the Commerce Clause, but has the same purpose as the earlier ordinance to prohibit PCB disposal in the parish. Citing the explicit preemption provision incorporated into TSCA to effectuate Congress' national regulatory scheme for PCBs and other toxic substances, the court finds that since the parish neither sought nor qualified for any of the three exemptions to the preemption provision, the conditions necessary to trigger preemption have been met. Although the ordinance refers to commercial solvent cleaning operations rather than to PCBs, transformers, or toxic substances, its substantive purpose and effect are to prohibit plaintiff's PCB disposal activities in the parish and it is therefore preempted.

Counsel for Plaintiff-Appellant
Emile C. Rolfs III
Broadhurst, Brook, Mangham, Hardy & Reed
770 North St., P.O. Box 3551, Baton Rouge LA 70821
(504) 343-0700

William H. Lewis Jr.
Morgan, Lewis & Bockius
1800 M St. NW, Washington DC 20036
(202) 872-5040

Counsel for Defendants-Appellees
Stephen M. Irving
355 Napoleon St., Baton Rouge LA 70802
(504) 346-8774