The United States District Court for the Western District of
Wisconsin has ruled that a citizen suit related to the release of polychlorinated
biphenyls (PCBs) may be brought under the Resource Conservation and Recovery
Act, (RCRA), even though PCBs are regulated under the Toxic Substances Control
Act (TSCA). Liebhart v. SPX Corp.,
No. 16-cv-700 (W.D. Wis., November 2, 2017).
Plaintiffs, who owned land adjacent to a factory used to produce
electrical transformers in the 1950s, brought suit against SPX, alleging PCBs
were released during demolition of the factory.
Plaintiffs claimed the release of PCBs during the demolition
contaminated their property and caused Plaintiffs to suffer physical symptoms,
such as acute sinusitis, vertigo and skin infections.
Plaintiffs brought the claims under RCRA, which allows citizens to
enforce its provisions against anyone who has contributed to imminent and
substantial danger to health or the environment in the storage, treatment,
handling, transportation or disposal of hazardous waste. SPX argued the Environmental Protection
Agency’s failure to identify PCBs as a hazardous waste subject to regulation
under RCRA excludes PCBs from the definition of “hazardous waste” under
RCRA. The Court rejected this argument,
finding that even if PCBs are not a “hazardous waste” under RCRA, they are a
“solid waste,” which is also covered by RCRA.
The ruling allows Plaintiffs to litigate their state-law based
claims in federal court. Under RCRA,
Plaintiffs can seek damages for state-based tort claims, unlike a suit brought
under TSCA, which preempts state law. Here,
the Plaintiffs brought state law claims for strict liability and negligent infliction
of emotional distress.
