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States Critical of EPA’s Draft Risk Evaluation for PERC

By: Ted A. Warpinski and M. Andrew Skwierawski

On May 4, 2020, the U.S. Environmental Protection Agency (“EPA”) published a notice of its draft risk evaluation for PERC (Perchloroethylene), seeking public comment on the same. Prompted by a requirement in the Toxic Substances Control Act (TSCA), the EPA performs a risk evaluation to determine whether PERC presents an unreasonable risk to health or the environment, and if so it must implement regulations to address it.

On July 6, 2020, the Attorneys General of New York, California, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Jersey, North Carolina, Oregon, Rhode Island, Vermont and Washington jointly submitted comments to EPA strongly criticizing the draft evaluation. In short, these States Attorneys General are very concerned that the EPA is underestimating the overall risk of PERC exposures.

PERC is a known environmental contaminant

That PERC was chosen to be the subject of an EPA risk evaluation is not surprising.  It is well known in the environmental field that PERC is a common contaminant found in soil, groundwater, and air,  which can be difficult and costly to remediate. Recognizing this, Wisconsin created the Drycleaner Environmental Response Fund (DERF), funded by a tax on PERC, to help dry cleaners address PERC contamination. Since its inception, the DERF has disbursed more than $20,000,000 in reimbursements for investigation and cleanup costs.

The EPA’s draft evaluation also noted that PERC is a likely carcinogen by all routes of exposure and has been linked to bladder cancer, non-Hodgkin’s lymphoma, and multiple myeloma. The EPA also discussed evidence suggesting it may contribute to other cancers as well.

The Attorneys Generals’ concerns

The States’ Attorneys General were highly critical of EPA’s approach in the risk evaluation process, asserting that the failure of the EPA to consider all potential exposure pathways will lead to an underestimate of PERC’s risks.  The EPA’s position is that it need not evaluate exposures to the general population when those exposures might be covered under other environmental statutes, such as the Clean Water Act, the Clean Air Act and the Safe Drinking Water Act.  However, according to the States, the risk evaluation process is mandated by TSCA and requires the EPA to eliminate unreasonable risk to human health and the environment posed by hazardous chemicals from all known exposure pathways, irrespective of what other agencies may or may not be doing.

The next concern was the EPA’s failure to evaluate the risk of PERC exposure to particular subpopulations. TSCA requires the EPA to evaluate risk to relevant potentially exposed or susceptible subpopulations and the States’ point out in their comments that the EPA is not focusing on those who live in proximity to dry-cleaning operations or hazardous waste sites despite the fact that the EPA has acknowledged that these subpopulations may have significantly higher exposure.  The States further pointed to infants, children and pregnant women noting that PERC exposure during pregnancy has been linked to miscarriage, birth defects and slowed growth. PERC can also be passed from mother to infant from breast milk. While the EPA recognized that this group is susceptible to exposure risks, the risk is not being studied further as part of the risk evaluation according to the States Attorneys General.

The States also note that the EPA “discounts the risk to workers on the assumption that workers will use personal protective equipment (PPE)” to mitigate the risk of PERC exposure, criticizing the assumption that such PPE is effective or even used in workplaces resulting in an underestimate of the risk PERC poses to workers.

Finally, the States acknowledged that the EPA’s draft evaluation did address the risk to consumers via inhalation and dermal (skin) pathways, but only for acute exposure. The States are critical that the EPA is ignoring chronic or long-term exposures, which will ultimately lead to an underestimation of the overall risk.  They are also critical that each exposure pathway is being evaluated separately, which the States assert ignores the additive effect of exposures through multiple pathways.

The practical implications

Based on the current administration’s advocacy for deregulation, one might expect that the comments from these States’ Attorneys General are likely to be brushed aside. If so, these States could litigate the issues with EPA, much like States are challenging administration decisions to roll back what are considered “Waters of the United States” subject to regulation under the Clean Water Act.

If, at the end of the process, the risks of PERC are deemed unreasonable, we could see further, more comprehensive regulation on its manufacture and use.  But, irrespective of whether there are future regulations or prohibitions on use, the existing environmental issues and risks arising from the historic use of PERC will remain.

Ted A. Warpinski is an attorney with the law firm of Davis|Kuelthau in Green Bay. His practice includes environmental nuisance claims and toxic tort litigation, contract and property disputes, insurance coverage litigation and enforcement actions. Ted also works closely with real estate and development lawyers handling due diligence investigations and environmental permitting including wetland permitting. His success has been recognized by Best Lawyers® in America.   He can be reached at twarpinski@dkattorneys.com or 920.431.2236.

Andrew Skwierawski, is an attorney with the law firm of Davis|Kuelthau in the Milwaukee office who focuses his legal practice on environmental litigation, e-discovery, complex commercial disputes and municipal compliance. His background in technology includes crafting and responding to e-discovery requests and reviewing software licensing and service agreements. Andy’s environmental litigation experience includes representing manufacturers, property owners, farmers and environmental organizations. He can be reached at askwierawski@dkattorneys.com or 414.225.1485.

This article will be published in the August edition of The Business News.