PCB Suit Gets Green Light Under Federal Waste Law

By Peter Hayes

A Wisconsin couple may pursue federal hazardous waste claims over the demolition of a neighbor’s building that spread PCBs to their property, a federal district court ruled Nov. 2 ( Liebhart v. SPX Corp. , 2017 BL 393729, W.D. Wis., No. 16-cv-700, 11/2/17 ).

The fact that polychlorinated biphenyls already are regulated expressly under the Toxic Substances Control Act doesn’t bar a citizen suit under the Resource Conservation and Recovery Act, the U.S. District Court for the Western District of Wisconsin said.

William and Nancy Liebhart may proceed with their suit against the owner of the property, SPX Corp., as well as TRC Companies Inc., which oversaw the demolition, and Apollo Dismantling Services LLC, which conducted the demolition, the court said.

The court declined to rule on the argument of SPX that PCBs don’t constitute hazardous waste under RCRA.

SPX argued that 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.

Even if PCBs aren't a “hazardous waste” under RCRA, they are a “solid waste,” which also is covered by RCRA, the court said.

PCBs were used in electrical transformers, paint, caulking, sealants, inks, and lubricants and have been banned since the 1970s.

Judge James D. Peterson issued the opinion.

The Law Offices of Carey S. Rosemarin P.C. and Reinhart Boerner Van Deuren SC represent the Liebharts.

Nixon Peabody LLP represents SPX.

Fisher Bren & Sheridan LLP represents TRC.

Litchfield Cavo LLP and Segal McCambridge Singer Maloney represent Apollo.

For More Information

Full text of opinion available at http://src.bna.com/tXE.

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