Readers of The Wall Street Journal may recall the saga of the administrative law judge in NYC who sued a family-owned dry-cleaner for $57 million over a lost pair of pants. Dubbed “The Great American Pants Suit” by this WSJ article, the judge’s law suit was touted by some as emblematic of the flaws in our tort system. When the judge’s suit failed to produce a windfall verdict, dry cleaners everywhere presumably breathed a sigh of relief.
Recent word from EPA, however, may give much greater cause for alarm for the dry cleaning industry. Perchloroethylene, “perc,” PCE, TCE, tetrachloroethyene and tetracholorethylene are solvents used in dry cleaning. Approximately 28,000 U.S. dry cleaners use this family of chemicals, which are the only air toxic emitted from the dry cleaning process. PCE has been subject to limited EPA regulation under the Toxic Substances Control Act (TSCA), because it was in use long before TSCA was passed in 1976. However, according to this Columbus Dispatch article, EPA Administrator Lisa Jackson indicated in a speech in Columbus last week that she believes TSCA is “toothless,” and intends to press Congress for increased EPA authority to review chemicals. Among proposed changes in EPA regulation of PCE: classification as a “likely” carcinogen (rather than a “possible” carcinogen), and reduction in airborne limits. Litigation over injuries attributed to PCE and other chlorinated solvents is nothing new, of course. However, if Administrator Jackson’s proposed changes are implemented, exposure claims in general and cancer claims in particular are likely be significantly affected by the ensuing “hindsight bias” engendered by the new state of the art.