Tetrachloroethylene, also known as perchloroethylene, PERC or PCE, is a nonflammable, colorless chemical that exists as a liquid at room temperature.  PCE is and was widely used in dry cleaning operations.  Like its cousin trichloroethylene (“TCE”), PCE is a potent solvent and is used to dry clean fabrics and to degrease metal parts. http://www.enviroattorney.net/what-is-trichloroethylene-tce/  PCE is also found in a variety of consumer products, including some paint removers, water repellents, and glues.

People may come into contact with PCE through drinking contaminated water or by inhalation.  Public health authorities advise that exposure to PCE can cause various negative health effects.  Short-term exposure to PCE may result in symptoms such as dizziness, headache, sleepiness, and poor balance.  Long-term PCE exposure, over the course of many years, may result in liver or kidney damage, reduced red-blood cell count, and blood and immune system disorders.  Due to its toxicity, releases of small amounts of PCE can contaminate large areas of groundwater aquifers and create an indoor air health risk.


Dry Cleaning: PCE’s Use and Misuse

After its adoption in the 1930s, PCE gained widespread use in the dry cleaning industry. PCE was delivered to dry cleaning operations in drums or tanks and then stored on site in tanks and used in dry cleaning equipment.  Before PCE’s toxic characteristics were fully understood, some dry cleaners disposed of waste PCE by pouring it onto the ground or down the drain.  Today such disposal practices are no longer legal.  PCE leaking from sewer lines is a significant factor in the spread of PCE releases.

For decades prior to the 1980s, when PCE wastes were not regulated as hazardous waste, small amounts of PCE may have been intentionally or accidentally mishandled.  Before the hazards of PCE were known, PCE spilled on floors, drained to sewers or escaped from dry cleaning operations through cracks in floors.

Historical and unintentional releases of PCE pose a threat to the environment and human health.  PCE that has been released from dry cleaning facilities migrates into the soil and over time finds its way to groundwater where it forms a groundwater contaminant plume.  PCE groundwater contamination may threaten wells used by individual homeowners and endanger municipal water supplies.  Although there has been a push in recent years to phase-out PCE[1], a majority of dry cleaners in the United States still use PCE in their operations.

PCE is also dangerous because it can remain in the subsurface in a liquid or vapor form for a long period of time without breaking down.  PCE is a volatile chemical, meaning that it will easily evaporate from a liquid to a vapor.  As a vapor, PCE has the potential to migrate toward the surface, under and into occupied buildings through small cracks or other openings, a phenomenon known as “vapor intrusion.”  Now that the dangers of PCE vapors are better known, vapor intrusion has become a significant concern for federal and state regulators.  Exposure concerns are heightened for vulnerable populations including women who are pregnant or who may become pregnant, infants and young children, elderly persons and people who are living with chronic disease or a compromised immune system.

PCE Cleanups: Soil, Groundwater and Soil Vapor

PCE contamination is widespread.  Studies by the U.S. Environmental Protection Agency (“EPA”) and trade associations suggest that over 22,000 currently active dry cleaners have PCE contamination on site.  EPA lists more than 150 dry cleaning operations on its federal Superfund list.  Finally, EPA estimates that there may be as many as 90,000 former dry cleaning sites nationwide that pose serious risks of contamination.

The clean up of PCE-contaminated sites can potentially cost hundreds of thousands of dollars.  Because most dry cleaning businesses are small and often lack sufficient financial resources, paying for the remediation of PCE-contaminated sites has become a significant issue[2].  When a dry cleaning business does not have enough assets or insurance to pay for a cleanup, or when the dry cleaner is no longer in business when a spill is discovered, the current landowner or a prospective purchaser may be liable for PCE cleanup costs even if the owner did not contribute to the release.  Because of this, landowners, managers, and real estate brokers need to be mindful of potential liability when purchasing or selling property that has been used for dry cleaning or other industries that use PCE[3].  A former dry cleaning operation located nearby may raise concerns.

The potential for hefty cleanup costs leaves many landowners looking for options to protect themselves from liability.  Anyone interested in purchasing a property that has been used for dry cleaning operations should exercise due diligence and obtain a Phase I Environmental Site Assessment[4].  Depending on the circumstances, a more thorough site investigation of soil, groundwater, and soil vapor conditions may be necessary prior to purchase.  Notably, some states have developed programs to help remediate contamination from dry cleaning spills. For example, Minnesota, Kansas, Florida, and other states have set up voluntary cleanup funds that provide money for cleanup efforts[5].  Money for these funds is in many cases generated from a tax on PCE. Landowners can also protect themselves against future PCE-related liability by requiring new dry cleaning tenants to obtain the proper insurance coverage.

At Hessian & McKasy our attorneys assist clients whose property is impacted by tetrachloroethylene or PCE releases to soil, groundwater or soil vapor.  We help clients limit their liability when purchasing or leasing property that has been impacted by PCE releases.  We assist clients in responding to Requests for Information (“RFIs”) issued by governmental agencies.  Also, we assist clients with the investigation, mitigation, and remediation of PCE releases on property they own or on other property.  We work closely with our clients, in-house environmental staff and consultants to address technical issues related to PCE releases.  When appropriate, we institute cost recovery actions seeking recovery for investigation, mitigation and remediation response costs from responsible parties.  In these cases where it is permitted under the law, we seek recovery of our attorneys’ fees.

Furthermore, please see the disclaimer at the bottom of this page relating to limitations on this blog and legal advice. Joseph Maternowski is a Minnesota attorney in private practice who practices in the areas of environmental, administrative and real estate law. He advises clients on compliance matters as well as on commercial and residential real estate transactions and on litigation.  Thanks to associate Joseph Reutiman for his assistance in preparing this update.  Finally, for additional information please contact:

Joseph G. Maternowski

Hessian & McKasy, PA

T: (612) 746-5754

jmaternowski@hessianmckasy.com

www.hessianmckasy.com

www.enviroattorney.net

 

[1] The City of Minneapolis is one of the first cities in the country to push dry cleaners to use alternatives to PCE.  https://minnesota.cbslocal.com/2018/01/24/dry-cleaning-chemicals-minneapolis/

2 A Phase I Environmental Site Assessment that meets the current ASTM Standard Practice should identify sites where PCE impacts may be a concern.  A Phase I reviews the past use of the subject and surrounding properties, regulatory records including spill reports or past investigations that detail groundwater contamination. In addition to the identification of recognized environmental conditions (“RECs”), the current ASTM Standard Practice also requires an initial assessment or preliminary screening of vapor encroachment conditions (“VECs”).

[3]The Minnesota Pollution Control Agency (“MPCA”) has taken the position that apartment and commercial building owners are required to install vapor mitigation systems for buildings with elevated concentrations of PCE in soil vapor below the building, even though they are not responsible for the release, because they are required to provide occupants with a living or workspace free from known chemical health hazards.

[4]  Minnesota’s Dry Cleaner Fund provides a potential funding source for dry cleaner owners and operators to tap into to pay for the investigation and remediation of PCE spills or releases.  Because of the number of sites with PCE impacts from dry cleaning operations in Minnesota, there is currently a backlog of applications for reimbursement.  For information on the Dry Cleaner Fund, see: https://www.pca.state.mn.us/waste/drycleaner-fund-environmental-response-and-reimbursement-accountand https://www.pca.state.mn.us/sites/default/files/p-f2-01c.pdf  The Dry Cleaner Fund is authorized by statute and can be found at Minn. Stat.  §§ 115B.47 through 115B.51 or at: https://www.lawserver.com/law/state/minnesota/mn-statutes/minnesota_statutes_115b-49