ago that permit the continued use of dielectric fluid containing
PCBs in transformers and capacitors, Edison argues that a final
rule already exists that protects against the risk of PCB
contamination from leaks and spillages. But that position rests
upon a non sequitur. That use of PCBs in nonruptured enclosures
may not be "imminently hazardous," does not mean that the
continuing presence of PCBs in the environment as a result of
uncontrolled spills, however inevitable such spills may be, is
The government's case under § 2606 is a narrow one. It seeks
to establish that PCBs spilled in residential areas constitute an
unusually great health risk and to compel Edison to clean up
those areas contaminated by malfunctioning electrical equipment.
Obviously, the government would not come into federal court to
compel Edison to disclose where PCB spills have occurred and to
clean up those sites if existing regulations forced Edison to
keep public records of spills, to clean up spill sites and to
inform unsuspecting residents of the extent of the PCB
Section 2606's definition of "imminently hazardous chemical
substance" explicitly distinguishes between "use" and "disposal".
While the regulations are directed primarily at the "use" of PCBs
in electrical equipment, the government's action is directed at a
certain form of "disposal" — spills from rupturing electrical
equipment. The existence of regulations governing the disposal of
PCBs, see 40 C.F.R. §§ 761.60, 761.70, do not preempt an action
under § 2606. First, the disposal regulations do not focus on
the specific problem the government seeks to redress. Second, the
government may bring an action against an imminent hazard
notwithstanding the existence of a regulation. See § 2606(a).
The imminence of the hazard posed by the use or disposal of a
chemical is defined in part with reference to the likelihood
that the injury will occur before a regulation can be
promulgated to protect against the harm, § 2606(f). This does
not mean that the EPA administrator can bring an action under §
2606 only when a regulation is to be promulgated. Rather, § 2606
is best viewed as a complement to § 2616. Section 2616 permits
the government to bring an action for violation of existing
regulations. Section 2606 permits the government to close
regulatory loopholes by taking action against applications of
toxic chemicals whose health and environmental risks are not
sufficiently minimized by the regulatory scheme. Requiring the
EPA to couple new regulations with every § 2606 action would both
complicate enforcement efforts and lead to an ever-growing
regulatory scheme of impenetrable complexity.
By bringing an action under § 2606 rather than § 2616 the
government presumptively establishes that the regulatory scheme
is incomplete. The primary focus of a § 2606 case should be
upon the seriousness of the real or threatened hazard posed by
a toxic chemical or the particular application of a toxic
chemical. The requirement that the government establish that the
health or environmental threat is both (1) imminent and (2)
commensurate to that posed by other substances covered by the
TSCA ("unreasonable risk"), protects regulated companies from
the arbitrary or frivolous enforcement efforts that Edison fears.
Edison does not mount a jurisdictional attack on the counts
brought under § 2616. It does advance two arguments for summary
judgment on these counts.
The first argument is that the government is seeking an order
that would require Edison to clean up "all" spilled PCBs.
Interpreting "all" to mean each and every molecule of spilled
PCBs, and pointing out that such a cleanup is practically
impossible, Edison argues that this court would be ordering the
doing of an impossible act by
granting the relief purportedly sought by the government.*fn9
This argument fails for two reasons. First, prayers for relief
should be construed reasonably. When its prayer for relief is
read in the context of the allegations in the complaint, it is
clear that the government seeks to compel Edison to clean up
spill sites to the extent necessary to protect human health and
the environment. The government's failure to specify precise
cleanup standards undoubtedly stems from the absence of
regulatory standards and, more importantly, from its recognition
that ongoing research about the health effects of PCBs and
developments in cleanup technology may alter the definition of
what constitutes an adequate cleanup. Second, the government
expressly disclaims any intention of forcing Edison to clean up
each and every molecule of spilled PCBs.
Edison's second argument rests upon two facts. The first is
that the EPA has permitted the continued use of dielectric fluid
containing PCBs even while recognizing that some spills wil
occur. The second is that the regulations do not specifically
mandate a cleanup of "all" PCBs. Indeed, the EPA dropped a
cleanup standard from the final regulations. Edison asserts that
the legal implication to be drawn from these facts is that it has
no obligation under the TCSA to clean up all PCBs and therefore
is entitled to summary judgment on a claim that it does.
The regulatory scheme, however, clearly presupposes thorough
cleanups after spills. The regulations set out detailed disposal
requirements, 40 C.F.R. § 761.60. Spills and leaks are defined in
§ 761.60(d)(1) as forms of disposal that must comply with the
regulatory standards. See § 761.60(d)(1). Subsection (2),
immediately following, reads, "PCBs resulting from the cleanup
and removal of spills, leaks and other uncontrolled discharge,
must be stored and disposed of in accordance with [§ 761.60(a)]."
Section 761.60(b)(2) (emphasis added).
The regulations also set out disposal requirements for "any
non-liquid PCBs in the form of contaminated soil, rags or other
debris." Section 761.60(4). See also § 761.60(a)(2) (dielectric
mineral oil). These contaminated materials must be disposed of by
incineration, § 761.70, or in chemical waste landfills, § 761.75.
The regulations prescribe extremely strict incineration and
landfill standards to ensure minimal PCB releases to the
environment. See also § 761.65 (storage for disposal).
The regulatory scheme does not necessarily require the disposal
of all PCBs, but it may not fall far short of that. Strict
cleanup requirements can easily be derived from the regulations.
For example, by treating spills as a form of disposal the EPA may
in effect be requiring cleanups to be as thorough as the disposal
methods. For example, if incineration must destroy all but 0.001
grams of PCBs per kilogram of PCB burned, see e.g., §
761.70(b)(1), perhaps cleanups of dielectric spills must be
equally efficient.*fn10 Edison quite reasonably complains that
it is impossible to deal with a cleanup standard which EPA has
yet to articulate, and it may well be entitled to specific
responses to contention interrogatories. It can be said with
assurance, however, that Edison cannot rely upon the TSCA and
accompanying regulations to avoid or severely curtail a
clean up PCBs spilled from its equipment solely because EPA, in
relying upon its regulations, prays for a cleanup of all PCBs.
The government has moved for summary judgment on the counts
based on 2616. Summary judgment, however, is premature. Having
disavowed the position that Edison is required to clean up
literally "all" the PCBs from each spill, the government cannot
not now prevail simply by pointing out that Edison's cleanup
efforts are not 100 per cent effective. Rather, the government
has the burden of showing that under the circumstances Edison's
cleanup efforts failed to satisfy disposal standards.
Further discovery and trial will be necessary to formulate
disposal standards applicable to the type of spills here and to
establish whether Edison has properly cleaned up existing PCBs
spill sites. Such determinations are dependent upon up-to-date
information about the health and environmental hazards posed by
PCBs and the available cleanup technology. The PCB regulations
indicate that with the assistance of the parties this court must
establish what are "adequate cleanup measures" under the
circumstances. 47 Fed.Reg. at 37354.
Edison argues that this court is bound by a determination of an
administrative law judge in a parallel proceeding that Edison is
not liable under the TSCA if it initiates "adequate" cleanups
within 48 hours of a spill. In re Commonwealth Edison,
(TSCA-V-C-133, 12/1/83) (on motion to dismiss an enforcement
action seeking sanctions rather than prospective relief). This
is a rather curious position. The same administrative law judge
summarily rejected Edison's argument that the absence of specific
regulatory standards exempted Edison from any liability for
inadequate PCB cleanups. Id. at 3. Edison not surprisingly does
not argue that this determination has a preclusive effect. While
this court will likely give some weight to pertinent
administrative decisions, Edison's selective res judicata
approach must be rejected.*fn11 The immediate, and for the
moment dispositive, answer is that there has been no final agency
action binding upon the parties.
Edison also seeks to bifurcate this proceeding and try the
remedy issue first. Apparently bifurcation would permit Edison to
determine the cost of cleanup if it is found liable. Knowing the
cost, it might decide to forego litigating the liability issue.
Bifurcation offers only a speculative chance that trial on the
liability issue can be entirely avoided. The liability and remedy
issues are intertwined here. This court recognizes that the core
dispute is the extent of Edison's cleanup responsibility. The
determination of what constitutes an adequate cleanup will
require close attention to the same facts upon which Edison's
liability, if any, will be assessed. One questions, however,
whether full litigation of the circumstances of every alleged
spill is necessary to a resolution of that core dispute, even
though an exploration of the circumstances of one or more will
probably be helpful to that resolution.
All motions are denied.