EPA ban, phaseout on cancer-causing chemical found in Long Island groundwater partially stalled by industry challenge

A federal Environmental Protection Agency measure intended to ban and phase out TCE, a toxin commonly found in contaminated groundwater, including on Long Island, has been delayed, first by a Trump executive order and then litigation.

Parts of the rule related to workplace safeguards remain suspended for certain industries due to the court battle and there is a move in Congress to do away with the measure.   

The toxin, known as trichloroethylene, has been linked to kidney cancer, liver cancer and non-Hodgkin's lymphoma. It is primarily a degreasing and cleaning solvent found in consumer products and has commercial and industrial uses. It is used in spot cleaners, vapor and aerosol degreasers, as well as lubricants, adhesives, paints and other items, according to the EP.

On Long Island, TCE has been found in contaminated groundwater and most recently in chemical-filled drums buried under a Bethpage community park.

Under the agency’s rule, TCE cannot be manufactured, processed and distributed. But there are exemptions. Some industries, such as those using TCE "for national security applications or for other critical needs," have extended yearslong timetables for scrapping it, according to the Federal Register. The rule calls for these industries, which includes certain manufacturers, to comply with "strict workplace controls" to limit exposure to TCE, according to the Federal Register.

But amid ongoing litigation filed in the U.S. Court of Appeals for the Third District, which serves Pennsylvania, New Jersey, Delaware and the Virgin Islands, the new workplace safeguards have been suspended for industries with an extended phaseout period.

In addition, Republican lawmakers have introduced legislation in both the Senate and the House under the Congressional Review Act to overturn the entire TCE rule, worrying some environmental advocates. 

"While that's all playing out in court, Congress is considering these and could overturn the rule entirely," said Daniel Rosenberg, director of Federal Toxics Policy, Environmental Health at the Manhattan-based Natural Resources Defense Council. The council is one of 170 environmental, labor, and public health groups who wrote a letter to elected officials in Congress, urging lawmakers to oppose the legislation.

Challenging the TCE ban

Battery-separator companies are among the group of litigants that have taken on the EPA, claiming the new rule would "cripple" their industry.

In court papers, the Alliance for a Strong U.S. Battery Sector, a trade association representing battery and battery-separator manufacturers, and the Texas Chemistry Council, said it would cost them millions of dollars to begin complying with the agency’s "workplace chemical protection program," which seeks to reduce TCE exposure levels through engineering controls or "stringent respiratory personal protective equipment," according to court documents.

The battery manufacturers are exempt from the ban for 20 years, the lawsuit states.

A lawyer representing the Alliance for a Strong Battery Sector coalition did not return a message seeking comment. 

The TCE rule, which was passed in December and was slated to go into effect in January, has faced a few roadblocks. It was first frozen by an executive action in January, then later suspended due to the legal challenges, with parts of it still paused and being evaluated. The EPA has until May 27 to file court papers in the suit. When asked to provide further clarification, the agency did not provide a comment.

Former Long Island congressman Lee Zeldin who now heads the EPA, has taken 31 actions to roll back climate change and environmental regulation in what he called the "most consequential day of deregulation," in the nation, according to a release. He said the rules cost trillions of dollars in regulatory costs and hidden taxes, Newsday previously reported. 

Dangers of TCE

But some advocates and residents said many companies challenging the ban are more concerned about profit and less about people’s health and safety.

Joseph Marino said he knows how dangerous TCE is. He said he used TCE cleaning solvents daily while working at Brookhaven National Laboratory for two years and is among 13 plaintiffs who allege they were sickened after working there and are suing Brookhaven Science Associates, which runs the lab.

Marino was a computer technician contracted to do work for the lab from 1999 to 2000. In the lawsuit, he alleged that daily use of TCE cleaning solvents as well as exposure to the substance on the site and in drinking water led to cancer in his right kidney, which has since been removed, and stage 3 chronic disease in his left kidney.

Marino, now 67, is cancer-free but struggles with what he said is a life-threatening condition and an increased risk of cancer returning. He said he is not surprised manufacturers do not want to comply with phasing out TCE and instilling new safeguards,

"I think it’s a bad decision to roll some of this back. These companies don’t care about workers’ health, they just care about their bottom line," he said recently.

Brookhaven National Laboratory said in an email it does not comment on pending litigation. 

Newsday previously reported that TCE had been used at Brookhaven National Laboratory in Upton, where groundwater contamination occurred due to historical storage and disposal of chemicals and radiological materials that polluted the site.

Remediation is also ongoing on the site, which is on the federal Superfund list.

The EPA estimates that there are nearly 68,000 workers, including those who handle TCE directly or are in close proximity to it, exposed to TCE annually.   

After a yearslong review process that started about eight years ago, the EPA concluded the chemical poses an "unreasonable risk of injury to health," and safer alternatives exist, issuing a rule in December to prohibit and phase out its uses . 

In addition to causing cancer, the chemical can also damage the "central nervous system, liver, kidneys, immune system, reproductive organs," and cause fetal heart defects, according to the EPA.

New York State banned most industrial uses of TCE in a law that took effect in 2022, according to the state Department of Environmental Conservation. But advocates said the federal ban is broader because it also covers household and commercial products. 

TCE on Long Island

TCE has been prevalent in the Grumman plume, which has seeped into some public wells on Long Island and required millions in remediation, Newsday previously reported.

Aerospace and defense company Grumman, now known as Northrop Grumman, used TCE to clean aircraft parts for 40 years and also used it to degrease vats and spray guns. As a result, TCE as well as other chemicals, leaked into the ground, Newsday previously reported. Local water providers have spent tens of millions of dollars creating drinking water treatment systems.

Most recently, at Bethpage Community Park, once a dumping ground for Grumman and the largest source of the plume, contractors dug up 22 drums filled with waste petroleum and chlorinated solvents, including TCE.

While officials said chemicals did not leak out, it has raised questions about the extent of the contamination at the site, which was already undergoing remediation after Grumman used it as a pit for wastewater sludges.

While ongoing personal injury lawsuits allege Grumman contamination resulted in illnesses, Northrop Grumman denied the claims, and the state has never linked the pollution to negative health impacts, Newsday previously reported.

Advocates said that it's important for all sectors of industry to follow the EPA rule, noting that it was phased out in Europe in 2016.

"We need corporations to partner with the public in protecting our health and stop fighting every regulation that is well grounded in science, like this one," said Adrienne Esposito, executive director of Citizens Campaign Fund for the Environment.

"It might add a little cost to industry, but it's to protect the public from cancer and serious diseases ... because disease also costs a lot of money," said Esposito.