By Rebecca A. Davis and Jeryl L. Olson

Seyfarth Synopsis:  Under the Trump Administration, the U.S. Environmental Protection Agency (EPA) has fully or partially deleted 22 sites from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) National Priorities List (NPL).  This is the largest number of deletions in one year since 2005. 

However, the EPA continues to add sites to the NPL, and added five new sites in the Fall of 2018.  Two sites are particularly noteworthy as they were added solely due to a subsurface intrusion pathway.  Subsurface intrusion is the migration of hazardous substances or pollutants and contaminants from the unsaturated groundwater zone and/or the surficial groundwater into overlying structures.  Vapor intrusion is the most common form of subsurface intrusion, but the intrusion also may be in the form of gas or liquid.

The HRS, the principal mechanism EPA uses to determine whether a site should be placed on the NPL, traditionally ranked sites under four pathways:  groundwater migration, surface water migration, soil exposure and air migration.  In other words, subsurface intrusion historically was not a separate basis for scoring purposes on the HRS, but was instead addressed as part of the remediation of a Superfund site.  On January 9, 2017, the rule to add subsurface intrusion as a component to the HRS was published in the Federal Register, and the final rule went into effect on May 22, 2017.  See our previous blog about it, EPA Eases Path to Superfund Listing: Vapor Intrusion Component Added to the Hazardous Ranking System.

The first of the two sites listed under the new HRS guidance, the Rockwell International Wheel & Trim site in Mississippi, was a former wheel cover and chrome-plating facility.  Although other traditional pathways were present, including soil and groundwater impacts from volatile organic compounds (VOCs), the EPA elected to score the site under the HRS only on the subsurface intrusion component.  The EPA determined that there was likely a complete pathway from the subsurface source of VOCs to workers in buildings overlying the soil and groundwater impacts.  This assumption was confirmed by indoor air sampling that revealed the presence of trichloroethylene and dichloroethylene in air in the buildings.

The second site, the Delfasco Forge site in Grand Prairie, Texas, is the location of a former munitions and forger operation that operated from the 1950s to 1998.  The site is contaminated with trichloroethylene (TCE) both in soil, and groundwater.  In 2008, EPA conducted a vapor intrusion investigation that included the sampling of sub-slabs, crawl spaces and indoor air of 16 homes and two commercial structures.  Ten of the 18 structures had measurable levels of TCE in indoor air.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Patrick D. Joyce, Jeryl L. Olson, and Craig B. Simonsen

iStock_000011623330_MediumSeyfarth Synopsis: In a significant proposal, EPA moves to ban the use of TCE in aerosol degreasing and spot cleaning at dry cleaning facilities, as part of a larger effort to ban TCE in other industrial uses.

The U.S. Environmental Protection Agency is proposing to ban certain uses of Trichloroethylene (TCE) – one of the most commonly used solvents – because of alleged health risks from its use as an aerosol degreaser and for spot cleaning in dry cleaning facilities. 91 Fed. Reg. 91592 (Dec. 16, 2016). The proposed rule was issued under the recently-amended Section 6(a) of the Toxic Substances Control Act.

This is a significant and controversial step. Not only is this EPA’s first use of Section 6(a) in 25 years, it is EPA’s first use of the “new” Section 6(a), which was revised in June 2016. In addition to the current proposed ban, EPA has indicated it intends to issue a proposal to ban TCE in vapor degreasing, and will publish one final rule banning TCE use in aerosol degreasing, spot cleaning at dry cleaning facilities, and vapor degreasing.

TCE is a volatile organic compound (VOC) that is both produced and imported into the United States, with use estimated to be around 250 million pounds per year. TCE is a clear, colorless liquid with a sweet odor and it evaporates quickly. TCE is used industrially as a solvent, a refrigerant, and in dry cleaning fluid. The majority of TCE is used (about 84 percent) in a closed system as an intermediate chemical for manufacturing refrigerant chemicals. Much of the remainder (about 15 percent) is used as a solvent for metals degreasing. Only a small percentage accounts for other uses, including use as a spotting agent in dry cleaning and in consumer products.

While the use of TCE in aerosol degreasing and spot dry cleaning constitute the least common use of the solvent in the United States, under this current proposal, EPA will prohibit the manufacture (including import), processing, and distribution in commerce of TCE for use these limited uses. However, EPA has indicated it is also developing a proposal to ban the use of TCE in other industries and in other operations with higher volume uses of the chemical (i.e., vapor degreasing). EPA’s final rule will includes the current proposed ban on aerosol use and spot cleaning in dry cleaning facilities, as well as the upcoming proposed ban on vapor degreasing.

The proposed ban on aerosol and dry cleaning uses includes requirements that manufacturers, processors, and distributors of TCE notify retailers and others in their supply chains of the prohibitions on use in aerosol degreasing and spot dry cleaning, and it is presumed the ban on vapor degreasing will have similar notification requirements.

Comments will be received on the proposed rule, Docket No. EPA–HQ–OPPT–2016–0163, until February 14, 2017.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Philip L. Comella and Craig B. Simonsen

The U.S. Environmental Protection Agency (EPA or Agency) just released its Toxicological Review of Trichloroethylene (EPA/635/R-09/011F, September 28, 2011) (Toxicological Review). This publication represents the first time that EPA has classified trichloroethylene (TCE) (CASRN 79-01-6) as a human carcinogen regardless of the route of exposure. TCE had previously been classified as a “possible human carcinogen.”

According to the Agency, the purpose of the Toxicological Review is to provide scientific support and rationale for the hazard and dose-response assessments given in its Integrated Risk Information System (IRIS) pertaining to chronic exposure to TCE. TCE is a volatile chemical widely used by industry as a chlorinated solvent; and unfortunately, it is also widely found at contaminated sites, including hundreds of Superfund facilities across the country.

The Toxicological Review concludes that based on the available human epidemiologic data and experimental and mechanistic studies, “TCE poses a potential human health hazard for noncancer toxicity to the central nervous system, kidney, liver, immune system, male reproductive system, and the developing fetus. The evidence is more limited for TCE toxicity to the respiratory tract and female reproductive system.”

The chief impact of this new hazard classification will likely be on the developing vapor intrusion standards and on groundwater remediation projects.