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SED, Inc. v. Dayton, City of

Citation: 12 ELR 20026
No. No. C-3-81-193, 519 F. Supp. 979/16 ERC 1387/(S.D. Ohio, 07/30/1981) Plaintiff's motion for summary judgment denied

The court rules that the City of Dayton's ordinances regulating polychlorinated biphenyl (PCB) disposal are excepted from preemption under the Toxic Substances Control Act (TSCA) as proper under the Federal Water Pollution Control Act (FWPCA). Plaintiffs sought to have the ordinances declared unconstitutional under the Supremacy Clause on the ground that state and local PCB regulation has been expressly preempted by §§ 6 and 18 of TSCA. The court first rules that the regulations have not been specifically excepted from the preemptive effect of § 18(a)(2)(B) by the Administrator of the Environmental Protection Agency. The court next rules that TSCA's express preemption provision is constitutional. The court agrees that the provision interferes with state activity in the areas of safety, health, and land use which are traditionally local matters that are beyond the reach of federal control under the Tenth Amendment. However, the Supreme Court has stated that the Tenth Amendment limitations on Congress' commerce power do not prohibit comprehensive federal environmental regulation. Further, the court rules that § 18(b) is not unconstitutionally vague. Third, the court holds that the ordinances do not escape preemption under an exception in § 18(a)(2)(B) pertaining to local regulation of disposal of hazardous substances. However, the court rules that the ordinances are excepted from preemption under § 18(a)(2)(B)(ii) because they were issued under the authority of the FWPCA. As indicated in TSCA's legislative history, the § 18(a)(2)(B)(ii) exception to preemption incorporates all state regulations authorized under other federal environmental statutes. The PCB ordinances were adopted as an interim measure in developing a local pretratment program under the FWPCA and thus are valid under TSCA.

Counsel are listed at 12 ELR 20021.