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One of our clients is involved in a lawsuit that raises some important issues for all of us who have used, are using, or plan to use solvents for cleaning. Part of the suit, believe it or not, concerns whether or not it’s legal to use chlorinated solvents in critical (or any other) cleaning operations.

Of course, it’s completely legal to do so, whether or not some observers approve; the EPA validated the use of chlorinated solvents—chiefly methylene chloride, 1,1,1 trichloroethane (TCE), and per-chloro ethylene—with the NESHAP for chlorinated solvents in 1995.

NESHAP specifies the level of emission control you’ll need if your geographic region or area hasn’t been declared substandard in meeting the air quality standards of the 1990 Clean Air Act. If your area has been declared to be guilty of “non-attainment” of those standards, the EPA will require your local environment management district to hold users in your area to a higher standard of emission control called Best Available Control Technology (BACT), in which your local district, using EPA information about other U.S. districts, will define its own permissible level of emission control and specify how that level should be achieved.

While vapor degreasing is completely legal, we would be remiss if we didn’t note that some environmental districts in which “politically correct” views prevail have managed to delay or derail approval of legal permit applications.

What about non-chlorinated solvents, such as fluorinated, brominated, n-methyl pyrollidone, and alcohols? It’s absolutely and completely legal to use them, too. Again, the issues are environmental emission rates for volatile organic compound (VOC) solvents; exemption by the EPA from VOC classification; vapor concentrations to which workers are exposed (TLVs), even though the solvent is VOC-exempt; fire safety procedures and design (for flammable alcohols such as IPA); personal protective equipment to prevent contact (OSHA); and waste disposal facilities (RCRA) and permits. (Local fire districts have been known to favor only equipment that uses flammable solvents and is approved by a workplace insurance underwriter.)

The second part of the suit has to do with past disposal of a chlorinated solvent (obviously this predates RCRA, the Resource Conservation and Recovery Act). An underground deposit of TCE has allegedly fouled an underground aquifer; the question is whether this was done by the plaintiff.

No matter what your views on environmental laws, government intrusion, or excessive paperwork, you don’t ever want to become involved in this type of lawsuit. Nearly all evidence is circumstantial. A single disgruntled worker, or former worker, can cause havoc with the truth of the past—assuming one even can know the truth at all in the first place. Fees for lawyers and expert witnesses (that’s us, folks!) quickly dwarf what keeping decent records in the first place might have cost.

That may be the key lesson of this lawsuit: Keep enough records to clearly show what you did, whether or not laws (such as RCRA) or administrative regulations (such as HAZMAT) require it. One party to this lawsuit didn’t do that, and now has lawyers and “expert” cleaning consultants climbing all over their past work, with the consequences of a possible adverse judgement looming into the tens of millions of dollars.

That stake, apparently, hinges on whether cleaning work done 30 years ago can or cannot be shown to be “precision” or “critical.” If the residues found in ground contaminated with TCE have the level of soil expected from high quality cleaning, they probably don’t fit with the residues found in the contaminated aquifer, and the plaintiff probably can’t be shown to have caused the contamination.

This lawsuit makes it plain how foolish it is to say, “I don’t do solvent cleaning. I use only water in my critical cleaning work. I don’t have any of those problems.” It isn’t the cleaning method or the cleaning work that are overseen by laws and regulations, but the emissions from them. So there’s just as much need for good record-keeping while cleaning oils with TCE from parts prior to plating as there is for cleaning arsenic or cadmium from structures with water.

Both operations are allowed by law. Both operations are limited by laws. And commercialization of both operations can be delayed by an overzealous fire inspector or environmentalists seeking to limit use of water resources perceived to be scarce.

Cleaning is allowed by law. It’s the consequences of that work that make us vulnerable to lawsuits—and keep us paying for lawyers and high-priced cleaning consultants.