Perchloroethylene Cleanup Hangs Drycleaners Out to Dry
Environmental Litigation
Drycleaners have been using perchloroethylene, a colorless liquid chemical also known as “PERC” or “PCE,” for decades. The chemical is also used in solvents, inks, shoe polish and other products, but it’s the dry-cleaning industry that accounts for 85 percent of its use.
PERC is a hazardous waste made with chlorine and other chemicals, and until modern-era environmental legislation regulating the disposal of PCE, the liquid leaked or spilled into the ground and seeped into water tables without much notice.
But federal and state-mandated clean ups are now hanging drycleaners out to dry financially, and insurance companies are also paying the price. In an attempt to find someone to pay for cleanup, some drycleaners are suing their machine manufacturers citing faulty designs and distributing use instructions that failed to warn drycleaners of potential perchloroethylene leaks and how to prevent them.
The drycleaner plaintiffs allege the machine manufacturers violated the federal Resource Conservation and Recovery Act, or RCRA, which governs all handling of hazardous waste from generation to disposal. RCRA provides for liability on the part of:
“Any person . . . including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment . . . .”
The Plaintiffs in Hinds Investments v. Patricia McLaughlin relied on this language in RCRA. But last August, the Ninth Circuit Court of Appeals rejected plaintiffs’ claims, stating:
“From the language Congress chose, it seems plain that Congress was concerned with those who handle, store, treat, transport, or dispose of the waste, not with manufacturers who design machinery that might generate a waste byproduct that could be disposed of improperly at hazard to the public.”
Despite the Appellate Court’s ruling, perchloroethylene cleanup remains controversial, because plaintiffs may still try to hold dry-cleaning machine manufactures liable under other, State-law theories.
But manufacturer defendants in the dry-cleaning industry can now argue that holding such defendants liable for what their customers is too far of a judicial reach even at the State level, when it comes to perchloroethylene leaks.
Stephen T. Holzer is the Chair of our Environmental Law Practice Group. You can reach him via e-mail: sholzer@lewitthackman.com, or by calling 818.990.2120.