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How a bipartisan plan to ban the use of carcinogenic TCE fell apart at the Minnesota Legislature

Both the House and the Senate voted to outlaw TCE, and Minnesota would have been the first state in the country to end the use of the chemical, commonly used as an industrial solvent. But neither bill ultimately became law.

majority-DFL House
The Republican-controlled Senate voted to outlaw TCE and the majority-DFL House, above, passed its own version of a prohibition.
MinnPost photo by Peter Callaghan

After state regulators found Water Gremlin, a manufacturer in White Bear Lake Township, was illegally polluting air with a cancer-causing industrial solvent for more than a decade, there was strong bipartisan support in the 2019 Legislature for banning the chemical, trichloroethylene, known as TCE.

The Republican-controlled Senate voted to outlaw TCE and the majority-DFL House passed its own version of a prohibition. Both measures would have made Minnesota the first state in the country to end the use of TCE, which is commonly used to degrease metal parts or remove stains in dry cleaning.

But neither bill ultimately became law.

A prohibition on TCE was not part of the final deal struck by political leaders and approved by lawmakers during last week’s special session. Instead, a House and Senate conference committee, meeting largely in secret, dedicated $786,000 to research TCE use in the state, its health effects and how to reduce it.

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The cash was a key part of the Minnesota Pollution Control Agency’s plan for preventing another controversy like Water Gremlin in the future. But it was not enough for many lawmakers, who reacted with finger-pointing and fury to the Legislature’s failure to enact a ban. On Friday, some legislators even threatened to derail an omnibus environmental bill in the Senate over the TCE legislation.

So what happened? Legislators and state officials said last-minute intervention from the pro-business Minnesota Chamber of Commerce and failed negotiations over how to spend Water Gremlin’s $4.5 million penalty ultimately scuttled a tougher crackdown on TCE.

State Sen. Chuck Wiger
State Sen. Chuck Wiger
In an emotional speech on the Senate floor, Sen. Chuck Wiger, a Maplewood DFLer, said lawmakers were “kumbaya” over a TCE ban until they went behind closed doors. “It seemed like it was destined for a lethal injection in conference committee,” he said of a TCE ban.

Water Gremlin and the case against TCE

Until January, Water Gremlin was using TCE to clean and coat battery terminal pieces. While the company describes itself as a leading supplier of those battery parts in North and South America, they’re also known for making fishing sinkers.

The use of TCE by Water Gremlin wasn’t prohibited, but the MPCA said the company was venting TCE at high enough levels to violate its state clean air permit since at least 2009 because of a failing carbon adsorber used to clean emissions. The resulting TCE released into the area was enough to threaten human health up to 1.5 miles around the facility. While state officials say short-term health risks are unlikely because of Water Gremlin, exposure generally can increase the risk of birth defects and some cancers.

After state regulators discovered the TCE emissions, Water Gremlin agreed to switch to a less toxic alternative as part of a settlement with the state. The company also must pay a $4.5 million civil penalty, one of the largest of its kind ever in the state. It’s also on the hook for $1 million for several years of air monitoring and other clean-up efforts, and another $1.5 million to plant 1,500 trees in the area and educate other manufacturers on reducing their TCE or switching to another chemical.

Still, many lawmakers wanted to bring a faster end to the use of TCE. Sen. Roger Chamberlain, R-Lino Lakes, and Rep. Ami Wazlawik, DFL-White Bear Lake, introduced legislation to ban the chemical starting in 2020. They also sponsored matching bills to dedicate Water Gremlin’s civil penalty to study and mitigate the effects of the company’s TCE emissions in White Bear Lake and to create a locally focused task force to guide that work.

The ban eventually passed the House and Senate in different forms, and some exceptions, limitations and extensions for business were added as the ban made its way through the Legislature.

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Outlawing TCE would have been unprecedented. No other state prohibits the chemical, and there are 80 known facilities that use TCE in Minnesota, said Tony Kwilas, director of environmental policy for the Chamber of Commerce.

But the Environmental Protection Agency has warned of the TCE’s health risks and proposed a nationwide ban on using the chemical as a degreaser and stain remover in December of 2016, under Barack Obama. President Donald Trump’s administration has since delayed action on the plan.

MinnPost photo by Peter Callaghan
State Sen. Roger Chamberlain
Wazlawik pointed to the Obama-era efforts as justification for her efforts. “We really feel like we need to ban the chemical,” she said. “It’s carcinogenic.”

Opposition emerges

While most lawmakers and environmental organizations seemed to agree with Wazlawik and Chamberlain, not everyone at the Capitol was united in support of banning TCE.

The MPCA has been neutral on whether to prohibit TCE and it opposed dedicating the Water Gremlin funds to the White Bear area. In written testimony from early May, Commissioner Laura Bishop said the plan could deplete a fund meant for “environmental emergencies” and set a new and unwanted precedent of local carve-outs for penalty money.

Bishop said she supported giving White Bear — or other communities in future cases — a small portion of the money, while allowing the MPCA to keep “a vast majority of the dollars for future remediation and cleanup statewide.”

Darin Broton, an agency spokesman, said the MPCA has been mainly focused on its request for $786,000 to help companies transition away from TCE. “Lawmakers from both parties saw the magnitude of the TCE problem and funded the initiative for four years,” he said.

Kwilas said the Chamber of Commerce also supported the MPCA’s approach and warned that not all replacements for TCE “can meet safety, availability, cost and effectiveness standards.”

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“We believe a ban would unfairly punish and penalize facilities that have been and are in compliance with their permits,” he said in a written statement.

Things fall apart

House DFLers and the MPCA largely blamed the Chamber for nixing the TCE ban.

Broton said the organization was “quietly working to exclude a TCE ban” behind the scenes. And Rep. Peter Fischer, a Maplewood DFLer on the environmental conference committee, told MinnPost the bill died because the Chamber was “more concerned about protecting the profits of big business than worrying about protecting the citizens.”

State Sen. Bill Ingebrigtsen
State Sen. Bill Ingebrigtsen
Chamberlain, the Lino Lakes Republican, agreed that the Chamber’s opposition was instrumental in halting the ban. He said lawmakers tweaked the bill to ease the transition for businesses and help assuage the Chamber’s fears, but it was not enough.

In a short speech on the Senate floor, Sen. Bill Ingebrigtsen, the top Republican on the environmental conference committee, didn’t mention the Chamber, but said he didn’t believe the ban was ready for “prime time,” despite including it in his initial budget proposal.

The Chamber’s Kwilas said his organization has been publicly opposed to the TCE ban for months and tried to downplay the notion of any back-room operating. They had not been involved with any late-session negotiations involving top lawmakers and the governor’s office, he said. “The Chamber preferred and supported the Walz administration approach to develop a statewide program to identify, evaluate and address the risks associated with TCE,” Kwilas said.

Chamberlain also said DFLers posed a hurdle to TCE legislation. During negotiations in the conference committee, Democrats insisted on connecting the bill dedicating Water Gremlin money with a ban, which made passing anything more difficult. The dedicated Water Gremlin funds would have been more impactful than a ban, Chamberlain said, and could have become law if the House, MPCA and governor’s office truly wanted it.

Fischer, on the other hand, said DFLers offered to approve legislation that nearly matched the GOP’s preferred versions of both policies, despite worries the ban wasn’t strong enough. He gave a copy of those measures to MinnPost, which appeared to include the White Bear Lake task force but not the dedicated account. It also offered exemptions to a TCE ban for hospitals, research facilities (like universities) and places that use the chemical in a “closed system” without emissions. It would have outlawed most TCE use by 2021 but allowed businesses to request extensions as they work to reduce or replace the chemical.

Wiger, the Maplewood DFLer, made a last-gasp effort to amend TCE legislation onto the Senate’s environment omnibus bill late on Friday night. But Majority Leader Paul Gazelka and other lawmakers stymied the effort, saying they couldn’t allow changes to the deal struck with House leaders and the governor without risking long delays from other lawmakers hoping to make their own changes to omnibus bills.

But Gazelka said the ban — and the dedicated account — were among many bills “building momentum” that had a chance to pass later. Wazlawik said she would certainly keep trying next year, and likened the money for the MPCA to “the beginning of the discussion.”

“I think we still need to come back and say we’re going to ban it,” she said.