Revised Trichloroethene Toxicity – How Does This Affect Your Manufacturing Facility?

The following post is provided by our guest author, Graham Crockford from TRC Environmental Corporation.

Trichloroethene (TCE) has been produced commercially since the 1920s and was commonly used by manufacturing companies as a metal degreaser. TCE was historically considered environmentally harmless. Because of TCE’s widespread use prior to the enactment of environmental regulations, it is a fairly common contaminant at former manufacturing facilities, and often a risk driver for remediation. Many manufacturing companies in the automotive sector have facilities with legacy environmental liabilities related to past use of TCE for metal parts degreasing.

On September 28, 2011 the USEPA issued a long-awaited final health assessment for TCE. Since then, updated toxicity values were published in the Integrated Risk Information System (IRIS) database for use in risk assessment. The toxicity values for TCE will result in lower (more conservative) screening levels for vapor intrusion assessment, and States are evaluating how to incorporate the toxicity data into state-specific screening levels and cleanup criteria. Indoor air screening levels presented by USEPA for TCE are near the limits of detection. Use of these screening levels is complicated by the incidental use of chemicals containing TCE and other solvents used in the manufacturing process, which often result in background TCE concentrations at or near these standards. Consequently, going forward it will be very challenging to demonstrate compliance with indoor air criteria at manufacturing facilities that have affected soil or groundwater underlying the structures, when TCE is still used, even in small amounts.

Implications in Michigan

In a recent development favorable to the manufacturing sector, Michigan Governor Rick Snyder signed Senate Bill 1328 which amends several parts of the Michigan’s Natural Resource Environmental Protection Act (NREPA). SB 1328 aligns MiOSHA standards and compliance with indoor-air criteria under Part 201 for the manufacturing sector. Under SB 1328, a person can demonstrate compliance with indoor air inhalation criteria for a hazardous substance (i.e., TCE) if:

the facility is covered by the NAICS Sectors 31-33 – Manufacturing. These sectors cover automotive manufacturing.
the facility complies with MiOSHA for the exposure to the hazardous substance, and
the hazardous substance is included in the facility’s hazard communication plan prepared as required by MiOSHA.

As a result, manufacturing facilities that have contaminants (including TCE) in soil and groundwater underneath their structures will no longer be held to two different compliance standards for remediation (which requires compliance with the more restrictive MDEQ vapor intrusion criteria) versus MiOSHA requirements.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.