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.