The Banning of TCE & PCE, and the Future of the EPA

Episode Notes

Transcript

Professor Wendy Wagner:

Industry doesn’t carry any burden of demonstrating the safety of its chemicals before they go into production. They don’t even have to do a literature search on toxicity. All the burdens are on EPA, so it’s very hard to do anything to regulate chemicals at their source. And so most of the public protections are back in, and I think that’s a pretty inefficient way to go about it.

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Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to the Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. Occasionally write a blog name. May it please the court and have three books out titled How To Get Sued the Sled and My newest book. How would You Decide 10 Famous Trials That Changed History? You can find All three on Amazon. In addition, our new podcast miniseries in Dispute, 10 famous trials that changed history is currently featured here on the Legal Talk Network and on your favorite podcasting app. Please listen and subscribe. On December 9th, 2024, the US Environmental Protection Agency announced the banning of two chemicals used in the automobile, dry cleaning and manufacturing industries. Two solvents, trichloroethylene known as TCE and Perchloroethylene, also known as PCE or perc, are widely used in a number of products and had been linked to cancer and other severe health issues with the banning of TCE and PCE.

The future of the U-S-E-P-A will be under Trump role coming January 20th, 2025. So what will be the impact of the TCE and PCE ban and will be there a major overhaul of the EPA and on undoing of Biden’s regulations? Well, today on Lawyer 2 Lawyer, we’re going to be discussing the recent banning of TCE and PCE by the EPA. We will also discuss the future of the EPA under a second Trump presidency, and to help us better understand today’s topic, we’re joined by professor Wendy Wagner. Wendy holds the Richard Dale Endowed Chair at the University of Texas School of Law in Austin, Texas, and she’s a leading authority on the use of science by environmental policymakers. Her research focuses on administrative processes governing the bureaucratic state, the regulation of toxic substances and the intersection of law and science. Professor Wagner previously served as an honors attorney at the environmental enforcement section of the environmental division at the Department of Justice, while she was an attorney at the DOJ, professor Wagner was the first or second chair on a number of prominent cases including us versus Vertek, a large Superfund case, and US versus City of Seattle, one of the first natural resource damage cases brought by the National Oceanic and Atmospheric Administration under the Superfund Law.

On top of being a law professor, she’s also trained as an ecologist. Welcome to the show, Wendy.

Professor Wendy Wagner:

Well, thanks so much, Craig, and thanks for having me.

J. Craig Williams:

Well, it’s a pleasure. But let’s start with you. How did you become interested in environmental law?

Professor Wendy Wagner:

Oh, well, I grew up in sort of the suburb of Chicago, but more specifically very close to Gary, Indiana and the Calumet region, and I don’t know if you’re familiar with it, but it’s one of the most polluted areas of the country. And when I grew up, it was a while ago, so there weren’t environmental laws in place and the pollution and hazardous waste levels were really high. So just one example, my little river where I used to let my tadpoles out when they were turning into frogs, they would belly up, and that river is still a super fun site. So I wondered as a child, like, gosh, this doesn’t seem right, what’s going on? And that’s sort of led me to study science and then ultimately law. But my heart has been with environmental law literally since I was about seven.

J. Craig Williams:

And you’re trained as an ecologist? That’s a phrase I haven’t heard since the seventies.

Professor Wendy Wagner:

Yeah, well, I mean that’s probably why, because when you use the word trained, I have a master’s degree and then started a PhD in ecology, but again, it was a long time ago, about the same time I graduated from law school. So I think the discipline has grown and changed quite a bit.

J. Craig Williams:

It’s dramatically changed, and in fact, what we’re talking about today is a big part of that change, the ban of TCE and PCE. Let’s talk about how long that’s taken and why it’s occurred.

Professor Wendy Wagner:

Yeah, so this is coming under a statute called tosca, which is a chemical regulation statute. And the TOSCA Act passed by Congress in 1976 was probably the most dysfunctional statute I’m aware of in environmental law, meaning almost nothing happened. EPA was out of 60,000 chemicals in commerce. EPA was able to ban only five, and they went through judicial review. And so that got substantially amended in 2016. And among the many, many requirements, it’s a very thick set of amendments, is that EPA needs to find the 10 worst chemicals that are currently not restricted, start with those and slowly add more over time, and it needs to do a risk assessment and then decide whether to restrict those chemicals. So back in 2017, EPA identified TCE and PCE as among the 10 really serious bad ones, and since 2017 or really 2016, it’s been working away at them. So these bans that we see are the rule that we see today. 2024 has been in the works since 2017.

J. Craig Williams:

I’ve been doing environmental law for a long time and working with manufacturers, and I believe that every single manufacturer that I’ve worked with has used either trike or perc TCE and PCE. This is going to be a big change. It’s a 10 year phase out. How is this all going to work?

Professor Wendy Wagner:

Well, actually the phase out, it varies by industry, but the phase out for TCE is actually one year. It’s a little longer for PCE, but there’s a lot of exceptions. So if EPA sees particular uses by industry for which there’s really not an adequate substitute that it can trust, or if the exposure levels are super low, we won’t see such a rapid phase out. So it might be 50 years, for example. But in terms of how it will work out, I think it’s going to definitely affect industry. I think that EPA even estimated more than $64 million of costs just for TCE. And it sounds like you’re much more familiar with the effects on industry than I am, but I think some of the effects will be dramatic.

J. Craig Williams:

They’re going to be very dramatic. And in fact, from the manufacturers that I’ve worked with, they’re not really able to find an equivalent solution. There’s been a lot of aqueous solutions proposed, but a couple of my clients are manufacturers or subcontractors from NASA and the defense department and their requirements for clean parts are not satisfied by anything other than TCE or PCE. How is this going to work out?

Professor Wendy Wagner:

Well, and again, I think we’d have to go back to the long rule with respect to specific industries because some of those industries have I think a 50 year window to do something about it. And it’s my impression, although I haven’t been in the weeds on the rule that EPA is actually trying to target the places where there’s already a lot of substitution going on in the industry where they would expect the least amount of dislocation, but again, what the ultimate effects will be for individual industries over the next year. I simply, it’s beyond my Ken what that would be, although I’m sure EPAs analysis considers that, but there are a lot of different phase out periods for sub industries.

J. Craig Williams:

That’s good to hear. Why is this being banned? What’s the problem with TCE and PCE?

Professor Wendy Wagner:

Well, both are really hazardous. So TCE has been used as a solvent since the 1920s, and what that tells us is it’s all over the place, but PCE as well. So first of all, on the hazard side, TCE for example, is basically everything you don’t want in terms of a chemical. It’s carcinogenic, especially non-Hodgkin’s lymphoma. It affects the immune systems, it affects development. We see fetal cardiac effects in children exposed liver and kidney problems. It affects the nervous system, high incidence of Parkinson’s disease to expose folks. PCA looks somewhat similar, so we’re seeing carcinogenic developmental immuno, so there’s both cancer and non-cancer effects to worry about. And then I think because both have been in use for so long, they’re basically everywhere. So both are found in drinking water across the United States at higher levels than are set by EPA. And as you know, those levels aren’t based on science exclusively.

They’re based on a cost benefit. So they aren’t necessarily health protective levels, but they’re still exceeding drinking water limits. One estimate is like nearly 18% of the drinking water in the United States has TCE contamination that’s exceeding they’re found in Superfund sites. You may have had clients that were PRPs at Superfund sites. It looks like half the Superfund sites have TCE in them, air and water pollution industries, your clients are producing this stuff, and so they’re required to meet limits in air and water, but some of it’s still going into the environment. So I think the combination for PCE and TCE to cut to the chase is there’s a lot of different routes of exposure. There’s a lot of both in the environment already and showing up in places where people can be exposed, and they’re both really nasty. It’s my understanding, which is different than what you just said, that EPA feels like both chemicals have safer substitutes for many uses, but not all uses. So the thinking is, look, if there’s a way to get this lubricant or solvent to work and you can do it more safely, then let’s phase this out.

J. Craig Williams:

Right. Well, the clients that I’ve been talking to about this ban have said that it is essentially not effective to use the safer solutions like the aqueous solutions and so forth. It doesn’t do as good a job as the PCE, so it’s going to be difficult for the manufacturers to meet the standards to produce parts that are usually cleaned with PCE without it. We’ve been throwing around a lot of abbreviations. So tosca, toxic Substances Control Act, TCE, which is TRICHLOROETHYLENE and PERC or PCE, which is perchloroethylene. I think we also talked about PRPs, which are potentially responsible parties under Superfund and other environmental statutes. But as we go through this swath of initials and we try to understand what’s being accomplished here, how does this relate to President Biden’s moonshot about cancer, which is supposed to end cancer in the country? Is that really possible?

Professor Wendy Wagner:

Is it possible? Well, I’m not a scientist. I mean, maybe it’s possible a couple centuries from now. It doesn’t seem possible to me now, and I think it’s on its pro side. It’s really cool that the president set sort of a whole government approach to regulating certain hazards that cause cancer or certain problems that cause cancer because there’s so much siloing that goes on. OSHA’s regulating worker EPA is regulating air and water. And so I think the moonshot was going to suggest that we take a step back and try to find the biggest priorities, the low hanging fruit, and let’s go for that on a whole government basis. And so EPA has gone at the moonshot in different ways, and certainly as you mentioned, these two rules that EPAs finalizing are among what it would consider its contributions to the moonshot because both are pretty potent carcinogens.

But it’s hard for me to tell whether all of this would’ve happened without a moonshot. In other words, if Biden didn’t have that policy, EPA may have been motoring along doing pretty much the same things, but at least the moonshot helps us see that. So EPA has been also very, very busy with PFAS promulgating, just so many rules about how it goes into the environment, what are we going to do about cleanup standards and so forth. They’re continuing to motor along on Superfund sites and under the moon shop put a lot of money into that as well. And they’ve doled out a lot of money to the states because I think the states are facing a lot of cleanup burdens.

J. Craig Williams:

Right. Well, Wendy, at this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back. Welcome back to Lawyer 2 Lawyer. I’m back with Professor Wendy Wagner from the University of Texas at Austin Law School. We’ve been talking about the bans on PCE and TCE as we look at that and have to look through history as well. You said that some of the chemicals have been used since the 1920s, and we’ve seen a political swing from left to from conservative to liberal and big government and no government, and we’re about to enter into another phase of no government or less government. How do you think this rule is going to play out in the political swings? Not necessarily talk about the issues of politics, but the changes that occur from years to years to years. I mean, we are talking about a 50 year ban on this and things that have happened over the last a hundred years and politics don’t stay the same. So can we count on these things being banned or are we going to see EPA pull back?

Professor Wendy Wagner:

Yeah, well, that’s the million dollar question. It’s hard to know what the new administration is going to do. I mean, I would guess they will obviously look seriously at this, but as I understand it, regulating chemicals is something that the public is very worried about, and Trumps has signaled that he wants to worry about pulling back regulations on air and water releases. But toxic substance regulation may be sort of low on the priority list for the new administration. And Lee Zelin as sort of an unknown, but I think even he supported A-P-F-A-S Action Act, so it’s hard to tell. And they have a lot of things they’ve probably worked with constituencies on. So I think the million dollar question of all their sort of dream wishes with EPA and where things have been going over the last four years, what they want to undo is are these two bans really high on the list?

Are the constituencies very vocal and also very influential? And so they want to put this up high on the list, but if they do, there’s going to be a lot of work for the new administration, I think to undo it because they’re going to have to promulgate a rule notice and comment. They’ll have to come up with reasons that they need to withdraw or change. My sense is, as you’ve already suggested, they’ll look really hard maybe at the effective dates of the delays and bans. In other words, maybe they’ll extend it from one year to 20 years and so forth, if they revise the rule, keeping the rest in place and justified it with the various concerns of industry. But I think at the end, is that even something they would invest in? Hard to know because it’s going to take a lot of resources. And is that where they want to put their resources? I do suspect that they will delay the effective data immediately, but they probably, that’s not going to get them very far. At some point, they’re going to have to revise the rule. And with that short timeframe on TCE one year, industry’s already going to have to be adjusting. And so maybe the benefits to industry, particularly for TCE, are less to try to put a lot of priority on doing something with these two rules. But again, it’s, I’m just totally speculating.

J. Craig Williams:

We’re seeing this one year phase out and the 10 year phase out. There are some chemical companies out there who just deal in these singular chemicals. Are we going to see challenges or eminent domain claims for banning the production of this particular chemical?

Professor Wendy Wagner:

Boy, I don’t know about eminent domain. That’s interesting. But I would feel relatively confident that there is going to be a lawsuit against EPA to argue that the rule is arbitrary, that it goes outside the statute, that some of the interpretations used in the rule are improper, and they’ll probably file those appeals in the fifth circuit industry already has two other rules. EPA issued under review at the fifth circuit, although I don’t think there’s been argument on that. So I think we can expect that to happen for sure.

J. Craig Williams:

We can certainly expect it to happen. And now without the Chevron doctrine, what are the prospects?

Professor Wendy Wagner:

Well, again, hard to know. There is, I think one issue that is definitely going to be sort of in the cross hairs of Loper Bright and Les Deens, the EPA under Biden took a whole chemical approach, meaning they looked at TCE or pc, they looked at these chemicals from the whole chemical. What are the different exposure routes that these chemicals are causing? They’re in Superfund sites. They’re drinking while everywhere, pulled all of that together to decide, yeah, this is an unreasonable risk to the public. The prior Trump administration. And the industry likes a single use approach, which is basically you itemize essentially these different sources of exposure and the different uses of these chemicals that cause those exposures. And when you do it that way, you see maybe it’s less risky because exposures are only high in certain kind of uses. And even those uses, if it’s mostly workers, then if they just use more protective gear, we don’t have to ban the substance. Now, that is a policy call. It’s sort of mixed policy science, but it’s a policy call. And so industry I am sure will take AIM at the Biden whole chemical approach and argue that’s inappropriate under the statute, and I think that’s going to be potentially a successful argument. Or it could be that maybe the Trump administration would actually move the court once these rules are in process to remand the rule back to it so it can do some of these corrections.

J. Craig Williams:

Right. Well, we’ve been talking about these chemicals really, without talking much about how they’re used. Where’s TCE used and where is PCE used?

Professor Wendy Wagner:

So TCE is used both their solvents, but TCE is used in a variety of sort of solvent ways. It’s used as a cleaner, like in spot removers. It’s a lubricant. I think that might be one of its primary uses. It can be used in glue, adhesives, sealants, grease, and then PCE also solvent. But it’s a real popular cleaner. So dry cleaners I think are the one place that we tend to gravitate to thinking about fabric finishers, medical manufacturers. But as you mentioned, there’s many, many uses, and I know again, the military uses are of concern.

J. Craig Williams:

Most of the clients that I work with are used both chemicals as solvents, as you say, to clean parts and to move them to the next stage manufacturing either for the application of some other covering to the metal or something like that. So the problem with our clients is that this chemical seeps through concrete, and they didn’t know that for a long time. So even lining the pits and closing the tops of these things have not really solved all of the problem. When we see this in the workplace, what kind of effect does it have on workers who’s sitting there for eight hours working exposed to these things?

Professor Wendy Wagner:

Well, again, I think there’s acute effects as well, meaning that it can have at very high concentrations, immediate effects. I haven’t seen, although maybe there are really wonderful studies about tracing workers exposed and looking up at the epidemiology evidence, but they will have many of the same effects. We’re going to see different kinds of cancer for tce, at least nervous system, compromising liver and kidney. So I think a lot of the same effects that we’d see for the general population only, obviously higher exposure levels

J. Craig Williams:

As we move forward. How have environmentalists supported this? I’m assuming that they’re all in favor of it.

Professor Wendy Wagner:

It looks like they are very excited about it. It’s one of the very first restrictions on chemicals on toca. So I can count on two hands, including these two rules, the number of chemicals that have been restricted. So they’re very excited to see some progress finally on restricting chemicals that are widely used and found in places basically in every type of exposure. I think that, from what I can tell, they’re still somewhat critical of aspects of the rule. I think the perk rule, for example, is only restricting about 20% of the uses is what I saw. And some of the extensions that are available to have a slower phase out, I think they have questioned some of those. I believe it’s for TCE, for example, when septic systems and municipal septic systems receive TCE laden contaminated water, they have a 50 year period to kind of fix that and get the TCE out of the inputting water. It makes a lot of sense financially, but it does mean that the TC levels could still be potentially somewhat high.

J. Craig Williams:

Well, Wendy, at this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back. Welcome back to Lawyer 2 Lawyer. I’m back with Professor Wendy Wagner from the University of Texas at Austin Law School. We’ve been talking about the bans on PCE and TCE when we see these kind of attacks from the environmentalists on portions of it, like the long phase out and the numerous exceptions, which in many instances kind of gut the rule, we’re going to see a challenge from industry. Are we going to see a challenge from environmentalists?

Professor Wendy Wagner:

I don’t believe they have filed cross appeal in the two rules that are currently being litigated. And I don’t know, it could be that they will see very important reasons they need to file cross appeal. They certainly would have some arguments but also would want to be involved. But I don’t know. But as you mentioned, I think it probably is inevitable that if something else doesn’t happen to these rules, for example, like Congress using the Congressional Review Act just to get rid of them. If something doesn’t happen sooner than that, we’ll almost undoubtedly see an appeal.

J. Craig Williams:

Right. Well, Wendy, we’ve just about reached the end of our program, so it’s time to wrap up and get your final thoughts and your contact information if you’d like.

Professor Wendy Wagner:

Sure. Probably the way to find me is just to Google Wendy Wagner, Texas law, and then you get my webpage and there’s an email and access. And in terms of wrapping up, I mean, I think one thing I guess I would want to emphasize is that these two rules I think signify just how sort of worrisome our approach to chemical regulation has been. As most of our regulation of chemical exposures is backend controls limiting what industry can emit into air and water, although allowing it, cleaning up the drinking water when there’s exposure risks there, Superfund sites and cleanup waste. So that’s primarily still 50 years into the environmental laws, how we restrict the public’s exposures to these chemicals. And even though we know there’s many hundreds of hazardous chemicals that we need to clean up in these various ways, again, we only have seen restrictions on eight.

And we also know that out of 60,000 chemicals in commerce, most very large percentage, very large, have not really been tested much, if at all. And industry doesn’t carry any burden of demonstrating the safety of its chemicals before they go into production. They don’t even have to do a literature search on toxicity. All the burdens are on EPA, so it’s very hard to do anything to regulate chemicals at their source. And so most of the public protections are backend. And I think that’s a pretty inefficient way to go about it. We see PFAS cleanups looking like 16 billion a year or something. I mean, that’s because we didn’t regulate PFAS at the source or talk about restrictions. So I think the overarching bigger picture into which these rules fit is really disturbing and the fault really lies with Congress there.

J. Craig Williams:

And it prompts me for just one last question. EPA regulation is supposed to be cradle to grave. And if we’re doing this backend regulation, and TOSCA is supposed to be the part where you start the chemical regulation in order to get approval of the chemicals, why isn’t TOCO working the way it’s supposed to?

Professor Wendy Wagner:

And I love the cradle to grave sort of analogy, yet we don’t regulate the cradle hardly at all. And again, Biden administration I think, was eager to do something and look what they were able to do. Just a few rules, a few restrictions out of a denominator of 60,000 chemicals. The problem is the statute, the statute passed in 1976 was filled with what we call attachment points litigation, places for industry to hold up EPA and the public interest groups couldn’t keep up with the little efforts. EPA was making EPA got reversed on an asbestos span first out of the gate in the late nineties, and that was the end of tosca, and it was amended in 2016. But I consider those amendments relatively weak to get at these systemic problems. We still don’t have burdens on industry. The little moves and deadlines for EPA are great. We’ll see some regulations of individual chemicals, but we still know so little about this large set. Again, tens of thousands of chemicals, which we know so little about. And I think 20% of those are classified as trade secrets, even with regard to their existence. So it’s a major black box in terms of what kind of chemical risks at the cradle stage are out there.

J. Craig Williams:

Sounds like we need a do over.

Professor Wendy Wagner:

We need a do over. I don’t see politically that coming anytime soon, even in the next 10 years. But yeah, we botched it. We botched it bad on chemical regulation, and we’ve been stuck in this rep for a long time.

J. Craig Williams:

Well, and on that note, sad note, Wendy, I have to say it’s been an absolute pleasure to have you on the program. Thank you to Professor Wendy Wagner from the University of Texas at Austin School of Law.

Professor Wendy Wagner:

Thanks again for having me.

J. Craig Williams:

Well, here are a few of my thoughts about today’s topic. This is an area of law that I’ve practiced in for nearly 40 years, and I know it well. I’ve taught it in law school, and I think Professor Wagner’s warning of how little we’ve done and how much there is to do really should be a clarion call like Rachel Carson’s initial book that prompted the work in the 1970s to start. We have a long way to go to regulate the amount of chemicals that are used, and by doing this kind of backend regulation, as Professor Wagner points out, all we’re really doing is cleaning up what’s already been spilled in the soil and the groundwater in and our drinking water, and it’s just an absolute mess. Congress needs to get their act together and start regulating chemicals from the beginning when they’re first made. Both the trade secret chemicals that we don’t know the chemical composition of that are used anyway, and the chemicals that we know of, but eight out of 60 that they’re charged to do with 20 or 30,000 chemicals out there. What a shame. Well, that’s enough for Craig’s ran on today’s topic. Let me know what you think. Please rate us on Apple Podcast, your favorite podcasting app. You can also visit us at the legal talk network.com, where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

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