ENVIRONMENTAL TIP #25 - Not According to Hoyle: PCB Transformers Transfix Transfers - 5/1/2002

08/01/2002

Facts

Hoyle Leaks discovers PCB contamination under a transformer on his property while conducting an environmental investigation in preparation for sale of the property.  Hoyle informs the Prospective Purchasers, the Bifenils - Polly, Chlorin, Nate, Ed - of the contamination and they agree, in exchange for a reduction in the purchase price, to  clean up the PCB contamination after closing.  After closing, the Bifenils  inform EPA that they are planning to clean up the PCBs to cleanup levels established in the PCB regulations.   EPA subsequently files an enforcement action against Hoyle for violation of the Toxic Substances Control Act ("TSCA") provision that prohibits distribution of PCBs in commerce.

Consequences

Hoyle is required to pay a fine for violation of TSCA.

Lesson

EPA considers the transfer of property contaminated with PCBs to be "distribution in commerce" of PCBs, which is prohibited by TSCA.  EPA, therefore, takes the position that PCBs must be remediated to the levels specified in the PCB regulations before a PCB-contaminated property may be transferred.  Although the validity of EPA's position has not been tested, because of it, sellers of land contaminated with PCBs may wish to identify and clean up any PCB contamination before they transfer the property.

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