How the Barton Bill Protects
Dry Cleaners From Excessive Clean Up

From Baise & Miller, P.C.

I. Introduction

II. Sources of Law
III Joint and Several Liability
IV. Clean Up Standards
V. The Barton Bill
VI. Common-Law Actions
VII. Conclusion

I. Introduction

The dry cleaning industry has recognized that it faces substantial potential liability from remediation orders for perchloroethylene ("perc") contamination around its facilities, even when the amounts involved are very small. Today drycleaners are facing problems such as landlords and shopping center owners refusing to lease, or renew leases, difficulty in borrowing money or selling drycleaning property and the filing of private lawsuits seeking compensation or clean up. There are also an increasing number lawsuits brought each year under federal, state, and local legislation. Still most of the cases today seem to be occurring between private parties.

The Barton Bill would legally solve the majority of these problems by eliminating much of drycleaners' liability for clean ups. It would accomplish this by tying the clean up standard for dirt and groundwater to the Occupational Safety and Health Administration's (OSHA) Permissible Exposure Level ("PEL") for perc, currently 100 parts per million (ppm) which is 100,000 parts per billion (ppb). Under the Barton Bill, the clean-up standard for soil and groundwater perc remediation would be required only for exposure from soil and groundwater contamination over 10 ppm, or 10,000 ppb. (If OSHA were to change its PEL for perc, the Barton Bill level would change correspondingly, i.e., at a PEL of 50 ppm, the Barton Bill level would be 5 ppm, or 5,000 ppb.)

There is presently no Environmental Protection Agency (EPA) clean-up standard for perc. By default, some authorities have tried to use the federal drinking water standard although it is of course inappropriate for soil contamination where there is little or no human exposure or risk to the environment. The Barton Bill would not change the drinking water standard.

II. Sources of Law

There are at least ten areas of law that expose drycleaners to liability for clean up:

Because of the requirements imposed by various state and federal environmental laws, third parties, such as shopping center owners, lenders, and insurers, do not want to be forced to assume the liability for cleaning up contamination.

III. Joint and Several Liability

At present, the number of remediation orders and lawsuits brought under environmental statutes is unknown. Nevertheless, bankers and insurers are risk-averse; they want to protect their collateral and to prevent loss of property value and large insurance pay outs. For example, if a shopping center that includes a dry cleaner as a tenant is worth $5 million, but there is a risk of a future cleanup that might cost $5 million, then no bank would lend money to the shopping center owner or purchaser. Therefore, the property owner is then compelled to undertake a cleanup, to force the drycleaner to clean up, or to make the dry cleaner move, at a cost of $35,000 to $100,000 and the loss of many hard-won customers.

Under section 107(a) of CERCLA, many people may be held liable for having some involvement with the creation, handling, or disposal of a hazardous material at a site. The categories of liable parties include current owners and operators of the facility, former owners and operators of a facility who were involved during the time any hazardous material was disposed at the facility, people who arranged for disposal or treatment of hazardous materials that they owned or possessed at the facility, and people who accepted hazardous materials for transport to disposal or treatment facilities or sites that they selected. Joint and several liability means that any one of these parties can be liable for the entire cost of cleaning up a site.

Under the legal doctrine of joint and several liability, a judgment is entered against all of the parties. If one of them cannot be located, is bankrupt, or otherwise cannot pay for clean up costs, then the other parties will be held liable for the entire cost. This doctrine also means, in theory, that a small drycleaner could be forced to pay for the entire clean up or a large portion of it, even if his share of the problem was tiny. Joint and several liability therefore often lead to third-party litigation, as those named as responsible for some of the cleanup will sue other responsible parties to make them pay their share as well.

It also could mean that, under CERCLA and similar provisions in other environmental laws, a shopping center owner or its insurer could be forced to pay the entire cost of clean up if his dry cleaner tenant could not afford it. This will naturally make shopping center owners reluctant to run that risk by even having a dry cleaner on the premises. So far there have been few lawsuits against drycleaners under CERCLA, RCRA, and the other environmental laws mentioned above; thus, these parties, known as "generators and arrangers," have not been held liable in large numbers for the costs of clean ups. Instead, most of the problem has originated with owners worried about their own potential liability, who have either refused to rent to dry cleaners or are forcing drycleaners to move or change their operations or have demanded that drycleaners undertake costly clean ups. Although the biggest liability problems facing dry cleaners currently are not lawsuits brought under Superfund or other federal environmental laws, the future threat of vast environmental liability drives third parties, namely property owners who rent to dry cleaners, to force them to undertake expensive cleanups.

IV. Clean Up Standards

Under CERCLA, clean up is required to be done according to a standard called the "Applicable or Relevant and Appropriate Requirements" ("ARARs"). Under Section 121 of CERCLA, ARARs are defined as any standard, requirement, criteria, or limitation under any federal environmental law and any promulgated standard, requirement, criteria, or limitation under a state environmental or facility siting law that is more stringent than any federal standard. For example, a Superfund site in state M contains a variety of chemicals, including large amounts of Chemical A. If State M has a law requiring that chemical A be cleaned up to 5 ppm, while a similar federal standard requires cleanup to 7 ppm, the site must be cleaned up to the level required by the more stringent State M law, or 5 ppm.

In the case of perc, because the EPA has not set a standard for cleaning up perc in soil and groundwater, people usually turn to the Safe Drinking Water Act standard, which is 5 ppb. By default, this 5 ppb becomes the ARAR or clean-up level to be achieved. While drinking water should be as clean as possible, dirt underneath a parking lot, or dirt in an industrial area around a dry cleaning plant, or groundwater that will never be part of the water supply, does not need to be remediated to such a low level to protect public health and the environment.

V. The Barton Bill

The "Small Business Remediation Act," commonly known as the Barton Bill, if enacted would provide a mechanism for choosing an ARAR more closely related to actual risks to human health. The bill would link the clean up level for dry cleaning solvents in the ground and groundwater to OSHA's PEL for perc. This would protect people from any significant human exposure. Although OSHA's PEL, which is currently a 100 ppm time-weighted average, covers practically all exposure to perc, the Barton Bill would set remediation at one-tenth of this level to account for sensitive populations, such as children and the elderly.

The Barton Bill sets only a clean up standard, but it is the present (Safe Drinking Water Act) cleanup standard that causes the problem. By eliminating an arbitrary standard, bankers and shopping center owners would be relieved of the threat of cleanup below levels that are realistically related to health risks. Therefore, the problem for dry cleaners at the local level would virtually disappear. What the bill does not address is the issue of groundwater used for drinking. The Safe Drinking Water Act requires that water coming out of the tap have no more than 5 ppb of perc. In practice, however, EPA sometimes requires that groundwater be cleaned up at its source before it is "cleanup up" in a water treatment plant, this remains an unresolved issue.

VI. Common-Law Actions

The Barton Bill would discourage but not prevent all perc-related litigation against drycleaners, Some sites would exceed the Barton Bill remediation levels, of course, and require cleanup. Also, it would still be theoretically possible for landlords and owners of adjoining tracts of land to sue under the common law, charging nuisance or trespass. In a nuisance action, a shopping center owner, for example, could sue a drycleaner for the "nuisance" of leaving perc in the soil or groundwater of his property. In a trespass action, the owner of neighboring property could sue a drycleaner if perc from his plant flowed onto the neighbor's property. In both of these cases, the drycleaner might be held liable, but the damage calculation would be greatly reduced because little or no cleanup would be necessary. With the Barton Bill levels, the drycleaner could in effect say,"No harm, so no foul." In other words, because perc would only need to be cleaned up to 10 ppm or 10,000 ppb, perc in soil or groundwater in a lower concentration would not be considered harmful.

VII. Conclusion

The Barton Bill addresses the real risks of exposure to perc. By linking a soil and groundwater remediation standard to OSHA's PEL, then lowering that level by one order of magnitude, it would protect people from any significant human exposure. Once a clean up standard for perc has been established, clean up orders under any of the various sources of law listed above would only require remediation to the Barton Bill standard. This would eliminate much of the current liability problem because dirt and groundwater would not have to be cleaned up to 5 ppb or any other unrealistic arbitrary level. Finally, it is not only the dry cleaners who would be relieved of this liability. With the Barton Bill as the ARAR, it is intended that shopping center owners and lenders would also be relieved of most liability, thus relieving them of the pressure to have dry cleaner sites cleaned up to the unnecessary, unrealistic, and extremely conservative and expensive Safe Drinking Water Act level.

For more information, contact Baise & Miller, P.C. 815 Connecticut Ave. N.W., Ste. 620, Washington, D.C. 20006; phone (202) 331-9100

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Date created: 97.02.23
Last modified: 97.02.23
Copyright © 1997, Blind Squirrel
Maintained by: Hal Horning

hhorning@pond.com