EPA calls time out for perc review
The Environmental Protection Agency last month asked for a time-out in legal
proceedings so it can review its clean-air rules for perc drycleaners.
After they were announced in 2006, the new rules were challenged in court by drycleaning industry and environmental groups. Oral
arguments before the U.S. Court of Appeals for the District of Columbia Circuit
were scheduled to begin this month, but in early April, EPA asked the court for
a postponement. EPA spokesman Dale Kemery said the agency and the Justice
Department made the request “so that the agency’s new leadership may review the rule.”
Despite taking opposing points of view in their legal challenges, drycleaning
industry and environmental groups both viewed the delay as favorable to their
positions.
In court challenges, the industry said EPA went beyond its statutory authority
in its rule-making while environmentalists argued the EPA did no go far enough.
The main point of contention centers on EPA’s edict that perc cleaners located in the same buildings as residences — co-residential, in the regulatory terminology — must convert to a non-perc cleaning method by 2020. EPA also said that no new
perc machines can be installed in co-residential locations.
“We’re encouraged that EPA has finally recognized that its treatment of
co-residential cleaners is indefensible and look forward to EPA’s revision of the rule to take into account ‘developments in practices, processes, and control technologies’ as the law requires,” said Steve Risotto of the Halogenated Solvents Industry Alliance.
“With the support of the drycleaners and allied trades, we are confident that the
evidence submitted during the reopened rule-making will demonstrate even more
forcefully that a perc phaseout cannot be supported,” he said.
HSIA, which represents perc producers, has been joined by the Drycleaning and
Laundry Institute, the National Cleaners Association and the Textile Care and
Allied Trades Association in mounting the industry’s court challenge.
The Sierra Club took the lead in representing the environmental activist
position. James Pew, an attorney for Earthjustice, which is representing the
Sierra Club, termed the EPA action “great news.”
“The previous administration’s approach was wrongheaded and illegal,” Pew said.
“We hope the new administration moves to get this toxic chemical out of the air
we breathe and eliminate the cancer risk it creates for millions of Americans,” Pew added.
The Sierra Club wants EPA to establish a nationwide phase-out of perc similar to the one adopted
in California in 2007.
In California, perc will be completely eliminated as a drycleaning solvent by
2023. So far, California is the only state that has adopted a perc phase-out.
New Jersey considered it last year but has since backed off.
In addition to the co-residential phase-out, EPA’s 2006 rules require enhanced leak detection and repair and fourth-generation
technology for all new perc drycleaning equipment. EPA also banned the use of
transfer equipment in perc drycleaning. Those rules remain in place.
The reopened rule-making will let each side make its case to EPA again. Risotto
said that this time EPA should convene a small business panel as part of the
rule-making process, which was not done for the 2006 regulation even though it
is required.
“By EPA’s own admission, over 99 percent of drycleaners are small businesses,” he said.
Also favorable to the industry position is legislative history stipulating that
the “residual risk” section of the Clean Air Act does not apply to drycleaners, he added.
The Drycleaning and Laundry Institute said the legislative history should be a
factor in the EPA’s reconsideration.
During Senate passage of the Clean Air Act amendments in 1990, DLI worked with a
bipartisan group of ranking members of the Senate Environmental Committee on
language stating that if EPA chose to issue an equipment-based area source
standard for the industry it would be prohibited from coming back later and
attempting to put in a risk-based standard.
DLI charged that in applying a risk-based standard in developing the
co-residential ban in the 2006 amendments, EPA had done exactly what the 1990
language said the agency could not do.
While the industry hopes to get EPA to pull back from its co-residential ban,
the Sierra Club sees the review as an opening to push EPA toward an
across-the-board perc phase-out and convert drycleaners to non-perc
alternatives.
“We would like to see this shape up as a premiere green initiative with assistance to the small business owners who
operate our local drycleaners, new opportunities for equipment manufacturers, and improved air quality for
neighborhoods across the nation,” said Marti Sinclair, chair of the Sierra Club’s Clean Air Team.
