Toward State-Run PCB Cleanups: A Road Map for Amending TSCA

Contributed by Trey Hess P.E., Director of Brownfields & Economic Development, PPM Consultants

In an era when environmental debates can sound less like policy discussions and more like a prime-time shouting match, one might assume every regulatory conversation is destined for a partisan gladiator pit. Yet buried beneath the headline skirmishes are pragmatic fixes that neither red hats nor green banners need to fear. One such sleeper issue is who should sign off on PCB cleanups: Washington or the states? It turns out that handing capable states the reins—much the way they already run hazardous-waste corrective action under RCRA—could be exactly the sort of wonky, common-sense reform that earns nods from both sides of the aisle.

Polychlorinated biphenyls (PCBs) are one of the last groups of contaminants still governed almost exclusively by Washington, D.C. Section 6 (e) of the Toxic Substances Control Act (TSCA) gives the U.S. Environmental Protection Firm sole power to regulate their use, storage, disposal and—critically—the cleanup of soil and groundwater. In practice that means every remedial design, risk-based standard, and cleanup completion report must be signed by an EPA regional PCB coordinator. Many developers, brownfield programs and state regulators argue that this centralized model slows projects and duplicates effort, especially where states already run robust corrective-action or voluntary-cleanup programs for everything else on-site.

Meanwhile, nearly all hazardous-waste corrective action under the Resource Conservation and Recovery Act (RCRA) is carried out by states that have obtained “authorization” under RCRA § 3006, a system EPA itself describes as “state programs that are at least as stringent as the federal requirements, but may be more stringent as well.” (epa.gov) Because the federal–state split under RCRA has worked for four decades, many practitioners ask: why not delegate PCB cleanup in the same way?

1. A Tale of Two Statutes

RCRA was enacted in 1976 with explicit language encouraging states to take the lead. Section 3006 allows EPA to authorize a state program “in lieu of” the federal scheme once that program is shown to be equivalent; EPA keeps an oversight and enforcement back-stop and can withdraw approval if a state back-slides.  The regulatory companion, 40 C.F.R. Part 271, sets a clear application path, checklists, public-notice procedures, and a Federal Register rulemaking for final approval.

TSCA, passed the same year, went in the opposite direction for PCBs. Congress feared that these chemicals, already in wide industrial use, required a uniform national response. Section 6 (e) therefore bans most PCB use, imposes strict disposal rules, and instructs EPA to write regulations for cleanup approvals; the modern rules are codified at 40 C.F.R. Part 761. Unlike RCRA, TSCA contains no “authorization” language, so states may assist but cannot replace EPA.

Over time, EPA has tried to relieve bottlenecks through Memoranda of Agreement (MOAs) with willing states. Florida and Pennsylvania, for example, have MOAs that allow “coordinated approval” of PCB cleanups—state staff review first, EPA concurs second. Yet those MOAs are not true delegations; EPA still signs every record of decision, and developers must satisfy both state and federal paperwork. The difference is illustrated starkly on multi-contaminant sites, where petroleum, VOCs and metals are closed under state law while PCB-impacted soil sits idle awaiting EPA’s letter.

2. Why Delegation Matters in 2025

Brownfield economics live or die on schedule certainty. Private equity funds and corporate boards hesitate to acquire industrial land when one contaminant triggers a second, federal review track. Many states—including Alabama, Michigan and California—now tie remediation grants, tax-increment financing, or voluntary-cleanup liability protection to state closure letters. A parallel, mandatory EPA approval for PCBs stretches carrying costs and undermines the “one-stop” concept state programs market to investors.

EPA, for its part, faces shrinking real-dollar budgets and a backlog of TSCA work, from new-chemical risk evaluations to PFAS rulemaking. Delegating routine cleanup oversight to qualified states could free federal staff for high-hazard sites and complex risk determinations.

3. Borrowing the RCRA Blueprint

The simplest legislative solution is to graft RCRA’s § 3006 framework onto TSCA. A new § 6 (f) (or a new subchapter) could be titled State Management of PCB Cleanup Programs and mirror five structural elements of RCRA authorization:

1. Equivalency Standard – State statutes and rules must be “at least as protective” as 40 C.F.R. § 761.61, including risk-based action levels, public notice and record-keeping.
2. Application Package – Governor/Attorney General certification, program narrative, statutes, regulations, and inspection manual transmitted to EPA.
3. Federal Register Approval – EPA rules on the package by notice-and-comment rulemaking; once effective, the state program operates “in lieu of” the federal program for listed modules.
4. Module or Phased Authorization – States could request authority over § 761.61(a) self-implementing cleanups first, later adding risk-based cleanups or disposal permitting, analogous to RCRA’s phased HSWA authorization.
5. Oversight & Withdrawal – EPA audits performance, offers technical assistance, and may withdraw approval under defined criteria, preserving national consistency.

Crucially, TSCA’s pre-emption clause (§ 18) would also need a tweak to exempt actions taken under an EPA-authorized state PCB program; otherwise state closure letters could be challenged as federally pre-empted.

4. Crafting the Amendment—Legislative Language in Brief

Section X. Amendment to the Toxic Substances Control Act.

(a) State Authorization for PCB Cleanup Programs. Title I of TSCA is amended by inserting after section 6 the following:

“Section 6A—State PCB Cleanup Programs”
(1) EPA Approval of State Programs. —The Administrator shall approve a state program to regulate cleanup and disposal of PCBs if the Administrator finds that such program is no less stringent than regulations promulgated under section 6(e)…
(2) Partial Authorization. —A state may apply for and receive authorization for one or more program components as described in subsection (d).
(3) Withdrawal. —If the Administrator determines, after public notice and opportunity for hearing, that a state is not adequately enforcing its authorized program, the Administrator shall withdraw authorization…

(b) Section 18(b) Amendment. Insert “or any action taken pursuant to an authorization granted under section 6A” after “Section 18(a)(2)(B) shall not apply to”.

While Congress would refine details—e.g., funding formulas, Indian Country jurisdiction—this sketch captures the core delegation mechanism. EPA would then promulgate implementing regulations modeled on 40 C.F.R. Part 271 within, say, two years of enactment.

5. Anticipated Benefits

EPA observers note that states already perform risk evaluations for dioxins, lead and PFAS—contaminants at least as toxic and controversial as PCBs. Delegation would therefore align PCB policy with the broader “co-regulator” model prevalent in U.S. environmental law.

6. Legitimate Concerns & How to Address Them

• National Consistency – Critics worry that 50 programs could mean 50 standards. The equivalency test (“no less stringent”) plus EPA withdrawal power would prevent a “race to the bottom,” just as it does in RCRA and the Clean Air Act.
• Resource Disparity – Smaller states may lack toxicologists or PCB disposal experts. Congress could authorize EPA grants for training, mirroring RCRA § 3011 support funds.
• Interstate Transport – PCBs removed in one state often cross borders for disposal. Authorized states would still have to follow 40 C.F.R. Part 761 manifest and TSCA disposal unit standards, preserving national requirements for interstate shipments.
• Liability Shifts – CERCLA and TSCA liabilities remain federal; state authorization would not affect strict liability for releases, only the regulatory sign-off process.

7. Political Outlook

Delegation language could ride on a bipartisan TSCA technical-corrections bill or a targeted brownfields reauthorization package. Support may come from the Environmental Council of the States (ECOS), the Association of State and Territorial Solid Waste Management Officials (ASTSWMO), and real-estate coalitions frustrated by PCB bottlenecks. Opposition is likelier from groups wary of state variability or those advocating for EPA retention of PCB oversight as a matter of precaution. Still, given RCRA’s successful 40-year record, lawmakers have a proven template for balancing state autonomy with federal safeguards.

8. Conclusion

A narrow statutory fix—granting states the option to run EPA-authorized PCB cleanup programs—could align TSCA with modern cooperative federalism. Drawing on RCRA’s § 3006 playbook, Congress would create a path for states that want the responsibility and resources to manage PCB sites end-to-end, while preserving EPA’s critical oversight. Developers would gain a predictable, one-stop regulatory lane; communities would see faster revitalization; and EPA could redeploy scarce staff to emerging TSCA challenges.

In short, amending TSCA to delegate PCB cleanup authority is not radical deregulation; it is an overdue modernization that applies a tested RCRA model to a narrow slice of toxic-substances law—letting capable states pick up the shovel while EPA keeps the blueprint. With brownfield redevelopment momentum and budget pressures converging in 2025, the time to draft that amendment may be now.

If the past few years have taught us anything, it is that environmental reform need not be a zero-sum brawl over existential issues like climate modeling or offshore drilling. Sometimes the smartest move is the quietest—tweaking a statute so that seasoned state regulators can finish what they already started, while EPA reserves its bandwidth for the next generational challenge. Delegating PCB cleanup under TSCA isn’t a culture-war wedge; it’s a bipartisan bridge: a modest, fiscally sensible, pro-redevelopment step that lets Main Street and Wall Street breathe a little easier. In a political climate thick with thunder, that kind of clear-skied compromise is worth more than its regulatory weight in gold.