Minnesota's Groundbreaking TCE Ban

On May 16, 2020, Minnesota became the first state to enact a ban on the use of trichloroethylene (TCE) at permitted facilities.¹ Although the ban appears to have been enacted in response to community activism prompted by a single facility with a history of violating its air emissions limits, environmental activists have touted the new law as a model for other states. Indeed, as federal action on TCE regulation has stalled, states may decide to enact their own laws restricting the use of the chemical, which is predominantly used as a degreasing solvent and intermediate in manufacturing refrigerants.

Minnesota TCE Law

The Minnesota ban, known as the "White Bear Area Neighborhood Concerned Citizens Group Ban TCE Act," was signed into law by Governor Tim Walz on May 16, 2020, and goes into effect June 1, 2022.The law bans owners and operators of facilities required to have an air emissions permit by the Minnesota Pollution Control Agency (MPCA) from using TCE. The ban covers TCE use in any manufacturing, processing, or cleaning process, unless specifically exempted by the law's provisions. The cessation of use is to be made enforceable in the air emissions permit for the facility or in an enforceable agreement with the MPCA. In addition, if an owner or operator elects to replace TCE with another chemical, the replacement chemical must be demonstrated to be less toxic to human health and reviewed in a form determined and approved by the Commissioner of the MPCA. The law contains certain enumerated exceptions. The Commissioner can grant exemptions for certain TCE uses—such as use in closed systems from which no TCE is emitted, "use" by holding TCE (or products containing TCE) for distribution to a third party, and use in certain hospitals and academic medical facilities. The Commissioner may also grant exceptions pursuant to the air emissions permit variance process if the facility uses TCE exclusively for research and development or processes TCE for waste disposal. A facility seeking to take advantage of one of these exemptions must demonstrate compliance with health-based values and health risk assessments of TCE established by the Minnesota Department of Health as of January 1, 2019.

The Minnesota law also provides some flexibility for small businesses. If a small business (defined as "a business with less than 500 full-time equivalent employees") needs more time to assess replacement chemicals or modify facility operations, it can apply to the Commissioner for a schedule of compliance in the facility's permit or enter into an enforceable agreement that allows an additional year, or until June 1, 2023, for the facility to come into compliance with that provision of the law. A small business owner or operator requesting more time must still demonstrate compliance with the health-based value and health risk limits for TCE as established by the Department of Health on January 1, 2019. In addition, the law provides for up to $250,000 in interest-free loans to help small businesses reduce their use of TCE.

Notably, the law is named for residents of White Bear Township, who sued the MPCA after being exposed to elevated levels of TCE by the nearby Water Gremlin Plant. The plant allegedly failed to report accurate emissions data in violation of its air permit for more than fifteen years. In 2019, the Plant was ordered to stop using TCE and pay the state $7 million in fines and corrective actions, but the residents advocated further for a state-wide ban on the industrial chemical—eventually forming the Neighborhood Concerned Citizens Group for that purpose. Representative Ami Wazlawik (DFL- White Bear Township) authored the bill, crediting its passage to "the dedicated Minnesotans who fought to ban TCE, many of whom were exposed to the toxic chemical in their own communities."² The law also got the attention of Erin Brockovich, who applauded Minnesotans saying, "I think you can become the model, if you will, for other states to hear, listen, study and potentially do the same."³

New York TCE Bill

Like Minnesota, there has also been activism related to TCE in New York. Currently, New York has a bill pending in the Senate Environmental Conservation Committee that would restrict the use of the chemical.⁴ The bill (S 6829A) would prohibit the use of TCE as a vapor degreasing solvent, an intermediate chemical to produce other chemicals, a refrigerant, an extraction solvent, or in any other manufacturing cleaning process, although the bill does provide for certain exceptions for dry cleaners. The bill also requires that any replacement chemical for TCE must be demonstrated to be less toxic to human health and approved by the Commissioner. If passed as drafted, the law would take effect immediately.

Unlike the Minnesota ban, the New York bill explicitly references regulatory inaction at the federal level. The senate sponsors of the bill note that, during the final months of the Obama administration, EPA proposed to ban TCE for aerosol degreasing, dry cleaning, and vapor degreasing, but since that time, the agency has failed to finalize its proposed rules. In recent months, the Trump Administration has reversed course by commencing a new risk assessment. Thus, the sponsors state that the New York bill "will prohibit the most harmful uses of TCE, consistent with the overwhelming body of scientific research," and that these actions are "necessary to protect human health and the environment, and to counter the federal government's inaction."⁵

Although New York is the only state with pending TCE legislation, it is not the only state where TCE usage or TCE releases have raised concerns among environmental and community health activists. Other states where such issues have drawn media attention and community-based concerns include Arizona, California, Illinois, Indiana, Massachusetts, Michigan, New Jersey, and North Carolina. It remains to be seen whether these or other states consider legislation along the lines of the Minnesota or New York model.

Federal Regulation of TCE

TCE is regulated at the federal level under the Safe Drinking Water Act, pursuant to which EPA sets Maximum Contaminant Levels for the chemical, and under the Occupational Safety and Health Administration Act, pursuant to which OSHA sets TCE exposure limits for the workplace. However, uses of TCE are currently not restricted under the Toxic Substances Control Act (TSCA). Following the sweeping amendments to TSCA enacted in 2016, the Obama Administration proposed to ban or restrict TCE uses in commercial and consumer aerosol degreasing, dry cleaning, and in vapor degreasing. However, these proposed rules were not finalized before the Trump Administration took office. Rather than finalizing the proposed rules, the Trump Administration appears to have decided to reevaluate the effects of TCE. Recently, EPA released a new draft risk evaluation for the chemical, reflecting a change in the agency's focus from fetal cardiac defects potentially caused by TCE to immunotoxicity risks. Some environmentalists and scientists have criticized the draft risk evaluation, alleging that focusing only on immunotoxicity risks could lay the groundwork for lower estimates of potential risks to human health. They allege that this could allow the agency to avoid prohibiting or placing restrictions on uses of TCE under TSCA.

If EPA's final risk evaluation concludes that an unreasonable risk is presented by TCE under its conditions of use, then, under the 2016 amendments to TSCA, the agency would be required to undertake a new rulemaking or finalize the previously proposed restrictions. Regulatory action under TSCA could raise preemption issues for state laws (although there are certain exceptions and waivers under TSCA's preemption provisions that states could seek to invoke). In the meantime, as is the case with New York's proposed legislation, additional states may lose patience with federal inaction and seek to enact their own TCE restrictions.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.