The final rule aka "MegaRule" revising disposal standards for polychlorinate biphennals ("PBCs") is schedualed for Office of Management and Budget review in August of 1997.

The proposed "MegaRule" was originally published in December of 1994. NWPPA's Task Force has held annual meetings regarding the status of the various revisions to the rule.

According to recent reports, EPA has made issuing the final rule a top priority. The entire PCB staff at EPA Headquarters is working on the rule. Our Task Force will closely review the new rule and is already planning educational programs regarding its meaning and implementation. Members of the Task Force are not holding their breath on the August deadline. Maybe by Christmas?

By now most electric utilities understand that the improper disposal of hazardous substances or ownership of contaminited property creates liabilities for cleanup costs under what is commonly called Superfund. What is not well understood is that both the individual as well as the electric utility can be held liable if they "arranged for" disposal of hazardous substances at a facility that turns out to be contaminated. Arranger liability is tricky and dangerous.

Here's how to get into trouble. Your utility sells used but still operational electrical

This is a classic case of arranger liablility in which the court will make a decision based upon what is often called the "totality of the circumstances" test to determine each person's responsibility for arranging its disposal of the hazardous substances in the transformers.

Under the "totality of circumstances" test the court first examines whether or not the transformers were a useful product or if their life cycle had ended at the time of the sale. The court then looks at the knowledge of the parties regarding the contamination of the transformers and whether or not they were leaking. The court then ascretains the presence of special knowledge of environmental regualtions. Next, the court determines whether the diposal of the transformers was dicussed by any party in the chain of transactions, and finally, whether or not the individual actively assited in the disposal and concealment of the ultimate disposal.

Under the facts described above, with the exception of the original seller, each party was held liable, including individuals. U.S. vs. Gordan Statford et al. A very small

The problem with arranger liability is that there is no "brightline" test. The "totality of circumstances" test is applied on a case by case basis. As might be suspected, court decisions are all over the map. Generally speaking, when lawyers and judges apply a "totality of circumstances" test on a "case by case" basis, it is bad news for utilities and its officers. Utilities that sell transformers which are near the end of their life cycle need to be aware of arranger liability. The sale of purchase of a useful product which eventually ends up in a Superfund Site normally does not create cleanup liabilities. However, the courts analyze these transactions very carefully to determine if any portion of the transaction involved the disposal of waste. The sale of PCB contaminated old transformers near the end of their life cycle can easily be interpreted as an arranger for disposal of the transformer and the PCBs. Arranger status can place liablity on both the electric utility and any utility employee who participated in the transaction. Individuals who knowingly arrange for disposal of the old PCB transformers are personnally liable.