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United States v. Commonwealth Edison Co.

ELR Citation: 16 ELR 20187
Nos. No. 84C 1597, 620 F. Supp. 1404/23 ERC 1631/(N.D. Ill., 10/31/1985)

The court holds that the Environmental Protection Agency (EPA) may maintain an enforcement action under §7 of the Toxic Substances Control Act (TSCA) against a utility company to compel the cleanup of spilled polychlorinated biphenyls (PCBs), and upholds EPA's extensive cleanup requirements under §6(e). The court first holds that EPA's regulations under §6(e) governing the disposal of PCBs do not preempt an action under §7. The court rejects defendant's argument that since EPA has promulgated regulations permitting PCB use, §7(f) precludes dielectric fluid containing PCBs from being considered an imminently hazardous chemical substance. The existing regulations do not focus on the specific problem of PCB spills from malfunctioning electrical equipment in residential areas, and §7(a) allows EPA to maintain an enforcement action against the user of an imminently hazardous chemical substance notwithstanding the existence of a regulation. Although §7(f) defines the imminence of a hazard with respect to the possibility of injury occurring prior to a regulation being promulgated under §6 that can protect against the risk, the existence of regulations governing PCB use does not constitute a final rule protecting against PCB contamination from spills. The court concludes that the section is best viewed as a complement to §17, which allows the government to enforce existing regulations. By bringing an action under §7 rather than §17, the government has presumptively established that the regulatory scheme is not complete; the court notes that the government must still prove that the alleged threat is an imminent hazard and poses an unreasonable risk.

The court then holds that EPA may mandate extensive cleanup requirements under its authority under §17 to enforce existing regulations. The court holds that the government's request that defendant clean up "all" PCBs should be read to seek cleanup to the extent necessary to protect human health and the environment. Prayers for relief should be construed reasonably, and the government expressly disclaims that its intent is to have defendant clean up every molecule. It also rules that the lack of specific cleanup standards in the PCB regulations does not bar EPA from requesting the court to order the cleanup of "all" PCBs. The regulations presuppose cleanup of spills and establish specific disposal requirements that explicitly include spills and leaks within the definition of disposal. These regulations may in effect require close to total cleanup of PCB spills. The court holds, however, that the government has not met its burden of showing that defendant's cleanup efforts failed to meet the regulatory standards.

The court rules that it is not bound by an administrative law judge's determination that defendant was not liable under TSCA if it initiated adequate cleanup within 48 hours of a spill. That administrative proceeding is still ongoing and the ruling has not become final. Finally, the court rejects defendant's request that the proceeding be bifurcated and the remedy issue be tried first. Although defendant could determine whether or not litigating the liability issue would be reasonable once knowing the cost of cleanup, the chances that bifurcation could avoid trial on the liability issue are speculative and the same facts need to be addressed for both issues.

Counsel for Plaintiff
Elizabeth Stein, Ass't U.S. Attorney
Rm. 1500 S, 219 Dearborn St., Chicago IL 60604
(312) 353-5300

Counsel for Defendant
A. Daniel Feldman
Isham, Lincoln & Beale
Three First National Plaza, Chicago IL 60602
(312) 558-7500