This action presents the issue of whether a municipality is precluded by state or federal law from prohibiting the placing of polychlorinated byphenyls (PCBs) in areas of the municipality designated as environmentally sensitive.
Rollins Environmental Services, Inc. (Rollins) owns and operates a solid waste disposal facility in the Township of Logan. Rollins is currently storing PCBs at its facility and is implementing a plan to dispose of them by incineration. An application for a permit to burn PCBs is pending with the United States Environmental Protection Agency (EPA).
On December 29, 1983, Logan Township passed ordinance 5-1983, entitled "Ordinance Prohibiting the Location of Polychlorinated Biphenyls in Environmentally Sensitive Areas in the Township of Logan, County of Gloucester, State of New Jersey." Section 2.1 of the ordinance provides: "No person shall locate PCBs in any environmentally sensitive area of Logan Township. . . ." The term "locate" is defined in section 1.2 to mean "place, store, site, situate on a temporary, recurrent, or repeated basis for purposes of storage and/or accumulation and/or disposal." The portion of the Rollins facility currently used to store PCBs and those portions Rollins intends to use to
dispose of the PCBs are within areas designated by the ordinance as environmentally sensitive.
Rollins brought an action in lieu of prerogative writs on February 14, 1984 seeking to have ordinance 5-1983 declared invalid. Its complaint includes four counts which allege that: the ordinance is preempted by state law (count one); application of the ordinance to the Rollins facility would constitute an arbitrary, capricious and unconstitutional exercise of the police power (count two); the ordinance is preempted by federal law (count three); and the ordinance unduly and unconstitutionally burdens interstate commerce (count four).
Logan Township filed a motion to dismiss or in the alternative for summary judgment as to counts one, three and four. Rollins filed a cross-motion for summary judgment on count three, declaring that the ordinance is preempted by federal law or in the alternative on count one, declaring that the ordinance is preempted by state law.
It is necessary to first address the issue of whether ordinance 5-1983 is preempted by federal law. The relevant statute is the Toxic Substances Control Act. 15 U.S.C.A. § 2601 et seq. (TOSCA). Initially, it should be noted that since the power of Congress to regulate toxic substances under TOSCA is derived from the Commerce Clause, Art. I, § 8 cl. 3 of the United States Constitution, counts three and four of the Rollins complaint raise the same argument. See 15 U.S.C.A. § 2601(a)(3). Accordingly, the Court will dispose of counts three and four together.
The two sections of TOSCA pertinent to the issue of federal preemption involved here are sections 2605 and 2617. Section 2605 concerns the regulation of hazardous chemical substances and mixtures. The regulation of PCBs is specifically covered in subsection (e). 15 U.S.C.A. § 2605(e). Section 2617 directly addresses the issue of preemption of local regulation.
The question of federal preemption when the EPA promulgates regulations pursuant to section 2605 is specifically addressed by section 2617(a)(2)(B) which provides that:
(B) if the Administrator prescribes a rule or order under section 2604 or 2605 of this title (other than a rule imposing a requirement described in subsection (a)(6) of section 2605 of this title) which is applicable to a chemical substance or mixture, no State or political subdivision of a State may, after the effective date of such requirement, establish or continue in effect, any requirement which is applicable to such substance or mixture, or an article containing such substance or mixture, and which is designed to protect against such risk unless such requirement (i) is identical to the requirement prescribed by the Administrator, (ii) is adopted under the authority of the Clean Air Act or any other Federal law, or (iii) prohibits the ...