The following information is from Baise, Miller & Freer PC, of Washington, DC. The firm may be contacted at 202-331-9100 or fax at 202-331-9060 or on the web at www.dclaw.net.HR 2726, The Small Business Remediation Act of 1999
Background
The dry cleaning industry faces substantial liability from potential remediation of dry cleaning solvent contamination around its facilities, even when the amounts of contamination involved are very small. This legislation. The Small Business Remediation Act of 1999, is designed to establish clean-up standards that are protective of human health and the environment and will reduce or avoid further litigation.
The Problem
Today, dry cleaners, which are typically small family-owned businesses, are facing problems such as landlords and shopping center owners refusing to lease, or renew leases; banks and other leaders balking in lending money, buyers being unwilling to purchase dry cleaning properties; and insurance companies hesitating to provide insurance - all because of concern over dry cleaning solvent contamination. The big problem is the filing of private lawsuits seeking compensation for or cleanup of contaminated property. These actions by third parties are driven by fear that they may be required to assume the liability for clean up under various federal environmental laws, such as the Comprehensive Environmental Response, Compensation, and Liability Act (commonly known as Superfund), or similar state laws. Although lawsuits can be brought directly by federal and state governments, they are few. Most of the cases today are brought by private pastes demanding that dry cleaners undertake a costly cleanup.
The most commonly used dry cleaning solvent is perchloroethylene (perc). Clean-up at dry cleaning facilities which use perc are costly because there is currently no Environmental Protection Agency (EPA) soil clean-up standard for perc. By default, many dry cleaning facilities have been required to remediate soils contaminated by perc to the federal drinking water standard for allowable perc concentrations in drinking water. Unless groundwater used as a drinking water source is affected, this is inappropriate since it forces the nation's dry cleaners to potentially spend billions of dollars to make soil, for example, under a strip mall parking lot, as clean as water at the kitchen faucet. In the overwhelming majority of situations involving dry cleaning facilities, soil contamination poses little or no human exposure or risk to the environment.
Legislative Solution to the Problem
H.R. 2726, The Small Business Remediation Act of 1999, known as the Barton Bill after its chief sponsor, Rep. Joe Barton of Texas, would solve the majority of these problems by requiring clean-up of dry cleaning sites to clean-up levels determined through use of EPA's own exposure-based Soil Screening Guidance Document ("SSGD"). The SSGD is a tool developed by EPA to help standardize and accelerate the evaluation of clean-up of contaminated soils at sites where future residential land use is anticipated.
The document provides a method to establish site-specific, health risk-based soil screening levels for contamination by a particular solvent and also provides generic default SSLs. Generally, at sites where Contaminant concentrations fall below SSLs, no further clean-up action or study is warranted under the Superfund law or RCRA. Under the SSGD, the generic SSLs for a specific contaminant can be used in place of site-specific screening levels since they are typically expected to be more stringent than site-specific SSLs. The SSGD sets different generic SSLs for a specific contaminant in soil depending on the likely pathway of human exposure (for example, by soil ingestion). The primary exposure pathway to perc from contaminated soils at a dry cleaning facility is through inhalation. EPA, citing the SSGD, has informally indicated that 11 ppm is the appropriate generic clean-up level for perc at dry cleaning sites.
By substituting the SSLs for an arbitrary and inappropriate clean-up standard, H.R. 2726 would relieve bankers and shopping center owners of the threat of unnecessary levels of cleanup, Therefore, the problem for dry cleaners at the local level would be drastically reduced if not eliminated. All of the SSLs in the SSGD are based on the requirement, adopted in the bill, that all drinking water continue to meet the federal safe drinking water standards relative to particular cleaning solvents.
Sumary of Bill Provisions
H.R. 2726 provides that the maximum level of clean-up for a dry cleaning solvent in soil or other environmental media that may be required of an owner or operator of any dry cleaning facility shall be equal to the site-specific soil screening level for inhalation of that solvent in outdoor exposure determined in accordance with EPA's Soil Screening Guidance Document. The exception is groundwater or surface water that is actually used as drinking water. In these circumstances, existing federal standards are applicable. Outdoor exposure is to be used in determining appropriate remediation levels since indoor air is not regulated by EPA.
In the absence of a site-specific soil screening level, the maximum level of clean-up for a dry cleaning solvent in soil or in other environmental media shall be the generic soil screening level for inhalation of that solvent in outdoor exposure set forth in EPA's Soil Screening Guidance Document. Again, for groundwater or surface water actually used for drinking water, existing federal standards are to be applied.
The EPA Administrator may alter the above clean-up levels when necessary to further protect human health or the environment, after seeking public comment through formal rulemaking, following publication of a revised Soil Screening Guidance Document.
The bill expressly states that none of its provisions shall be interpreted to alter or affect the federal drinking water standards under the federal Safe Drinking Water Act. Accordingly, the federal drinking water standards applicable to a particular dry cleaning solvent must continue to be met.
In addition, H.R, 2726 allows the federal government or a state to establish a more stringent level of clean-up at a dry cleaning facility based on site-specific factors if it determines that to do so is necessary to protect human health or the environment.