Defusing the 'Not in My Back Yard' Syndrome: An Approach to Federal Preemption of State and Local Impediments to the Siting of PCB Disposal Facilities

39 Pages Posted: 23 Apr 2016 Last revised: 7 May 2016

See all articles by William L. Andreen

William L. Andreen

University of Alabama - School of Law

Date Written: 1985

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 U.S. 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.

Keywords: environmental law, hazardous waste, toxic substances control act, polychlorinated biphenyls, federalism, preemption, NIMBY syndrome

Suggested Citation

Andreen, William L., Defusing the 'Not in My Back Yard' Syndrome: An Approach to Federal Preemption of State and Local Impediments to the Siting of PCB Disposal Facilities (1985). 63 North Carolina Law Review 811 (1985); U of Alabama Legal Studies Research Paper No. 2767572. Available at SSRN: https://ssrn.com/abstract=2767572

William L. Andreen (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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