Ever wonder how your neighborhood dry cleaner could end up on the Superfund National Priorities List, the federal list of the most contaminated locations in the country? The most likely culprit is the historic use of trichloroethylene, commonly abbreviated as “TCE”. TCE was frequently used as a dry cleaning solvent until being replaced by tetrachloroethylene (also known as perchloroethylene or “perc”), in the 1950s. However, dry cleaners continue to use TCE for pre-cleaning or “spot cleaning” purposes.
TCE is an effective solvent for organic materials and was a common degreaser used in manufacturing and metal shops. Back before the Environmental Protection Agency (“EPA”) implemented regulations addressing the transport, use and disposal of hazardous chemicals in commerce, it was frequently disposed of like any other liquid waste – dumped onto the ground or flushed into septic and sewer systems. Such practices resulted in numerous locations around the country with soil and ground water contamination from TCE and its breakdown products. More recently, TCE was the subject of an EPA study leading to a recently released final risk assessment that concluded TCE is a human carcinogen. This finding is particularly important because it provides the Agency with a “reasonable basis” under § 6 of the Toxic Substances Control Act (“TSCA” or “Statute”) to find the continued use of a chemical presents an “unreasonable risk” to human health. (It’s important to remember a bit of history here. Asbestos was the last chemical EPA found to have an “unreasonable risk” under § 6 of TSCA and that rulemaking was bounced rather roundly by a federal court for failure to prove risks from asbestos were “unreasonable” enough. See Corrosion Proof Fittings…)
In response to the assessment, EPA plans to host a workshop later this month focused on developing a cooperative approach with industry to transition to what it believes are safer alternatives. Many manufacturers have already made the transition to less regulated options. The Agency is focusing on expanding this voluntary approach as it is far more cost-efficient and swift than an informal APA rulemaking, while potentially achieving the same outcome.
Many in the industry, as well as some lawmakers, and the American Chemistry Council argue TCE poses little to no risk of harm when used in the proper manner. The groups believe the regulatory process could have a detrimental impact on national businesses, and hit industrial operations especially hard. Environmental groups argue that the Agency’s voluntary approach will do little to limit TCE’s use and the Statute requires more definitive action.
Verrill Dana attorneys will continue to track the latest developments concerning TCE and can serve as a resource for locating non-regulated alternatives to TCE or perc. Updates will be posted to our blog, The Law of the Land (and Air and Water), so check back early and often.