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
Date Written: 1985
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: Suggested Citation