Dry cleaner chemicals worrisome for owners.
If Public Advocate Mark Green has his way, dry cleaners in New York City wouldn't even be allowed to operate their machines in residential buildings - similar to state law - but merely provide pick-up and drop-off services.
The odors from the chemical perchloroethylene, commonly called "perc," are noxious, and according to Green, have been identified by researchers as a health risk for certain cancers and leukemia, even at levels too low to smell.
Vapor Barriers Required
To keep the fumes contained and from seeping into apartments, under state regulations that begin going into affect this month, vapor barriers and ground containment will have to be installed over the next few years, and older equipment upgraded.
Beginning November 15th, these regulations require cleaners to completely replace what are known as first-generation machines without retrofits - those requiring the clothes to be taken from one machine and transferred by hand into another to dry - with fourth generation machines.
Those cleaners using first generation machines with a retrofit - carbon filters known as "sniffers" that adsorb and reclaim the solvent - must install vapor barriers by November 15th, as do those now installing new machines.
Over the next several years, those operating more recent machines will have to install the vapor barriers too. Those operating third generation machines must install one by November 15, 1998, while those operating the latest fourth generation machines don't have to meet the requirement of a vapor barrier until April 15, 1999.
The Neighborhood Cleaners Association International is taking the position that those replacing first generation machines with fourth generation machines should have the same time to install a vapor barrier as those with fourth generation machines already existing, but no stay is yet in effect.
Executive Director Bill Seitz says they agree with the New York State Dept. of Environmental Conservation, however, that any newly created dry cleaning store needs a vapor barrier.
"These are the most stringent regulations in the country," said Seitz. "Real estate people have concerns and I appreciate those, but a building owner has very little to worry about."
In addition to the physical requirements, Seitz says there is an inspection program and a requirement that the operator of the equipment be certified and attend training session.
Commissioner Joel A. Miele of the city's Dept. of Environmental Protection (DEP), said "The dry cleaning industry is working with us to try to resolve the issues. If there is a reason to complain, we will shut down the dry cleaners. On the other hand, if people complain and there is no basis under the law, it will be very difficult for an owner to get them out."
New City Standards
Until last week, the city's Dept. of Health (DOH) and DEP were enforcing different standards. "Now we have an understanding and agreement and one standard to apply," said Miele. "We are also better able to work together when we have a problem."
The new agreement creates a three-tiered system, and the level of enforcement depends on the measurement upstairs in the residential space.
The measurements will be taken in 100 micrograms per cubic meter (mgcm), which is equal to .015 parts per million, or 15 parts per billion, which is the New York State's guideline.
At 100 mgcm or less, no action is required. Between 100 and 1,000 mgcm, the dry cleaner will have to submit a remediation plan to DEP that would include measures such as vapor barriers, room enclosures and the closing of solvent containers.
If a level is taken over 1,000 mgcm, upon order of the Commissioner, the DOH will automatically seal the piece of dry cleaning equipment. No fines are imposed because the economic hardship of sealing the equipment is considered "fine enough."
Miele added he's never run into a dry cleaner that defied them.
"They are as much concerned with the problems of pete as everybody else is - and that's very positive. It's not an adversarial situation," he says.
Seitz says he hasn't yet seen these guidelines, and notes the reading in the apartment does not necessarily come from the building's dry cleaner, which may have a low reading on site. It could come from dry cleaned clothes brought into the apartment, he said.
Owner Made Cleaner Neater
But one 95th Street cleaner ignored city seals and it was the building owner who finally hauled the cleaner into court and reached a settlement to please the tenants.
Although the Upper East Side premises had been sealed, the dry cleaner peeled back the seals and began working - all while a tenants' association meeting was in progress.
"We went into the courtyard and could see the seal peeled back and the machines tumbling clothes," said John Gorman, attorney for the tenants' group, who added the scene was videotaped and shown on local television news. "The tenants went on a rent strike and the owner swung into action, and to his credit, tried to negotiate a settlement with the dry cleaner, who was unbending."
Eventually, the owner sought an injunction against the dry cleaner to keep them from emitting perc. In settling, the dry cleaner agreed to discontinue perc use by making the site just a drop-off and pick-up point, and the tenants' group was made a party to the enforcement stipulation.
"Most owners I spoke with prefer not to have dry cleaning services in their buildings unless they are drop-offs," said Dan Margulies, executive director of the middle market owners' group CHIP, the Community Housing Improvement Program. "Some owners say that when they can, they will reject a dry cleaner tenant or not renew a lease. By and large, it's waiting out the lease."
Cooperative and condominium boards, however, may not be in control of their retail spaces, which are sometimes controlled by conversion sponsors or others.
An offensive dry cleaner could also be the tenant of a neighboring building, or be sited in a strip mall where a noxious condition could affect the tenancies of a health club or restaurant next door.
Although the indoor air standard is .015 parts per million, Green's Assistant Deputy Advocate for Research and Investigation, Suzanne Mattei, says most people can't even smell perc until it reaches four or five parts per million.
A new Green report, Clothed in Controversy II, updates a 1994 version and summarizes health data and evidence suggesting the cancer risk at the state guideline of 15 parts per billion is 100 times higher than normally recommended for health risks.
"I'm not saying there are no problems, but it's a lot of hype and nowhere near the seriousness that some people would like you to believe," insisted Seitz. Part of the problem is there are guidelines of 15 parts per billion that the state uses, and we believe it is a guideline and not a regulation, and in our opinion is very excessive. "We believe it should be higher."
The OSHA standard for workers, he said, is 100 parts per million.
"We recommend to our members that they should not exceed 25 per million. There is a heck of a difference between 15 parts per billion and 25 parts per million," said Seitz. "I'm not suggesting that dry cleaners have the right to contaminate the air, but it has to be put in perspective."
Perchloroethylene is also known as tetrachloroethylene and tetrachloroethene. It is in a class of chlorine-based chemicals known as organochlorines that includes toxins like DDT, PCBs and dioxins.
Research Green has gathered shows perc accumulates over time in the human body and becomes concentrated in the brain, liver, kidneys, breast milk and fatty tissue.
This means too, that if a restaurant, deli or pizza parlor is next to a dry cleaner, perc fumes could accumulate in items such as exposed butter and cheese, just as it could if they are left out in an apartment above a dry cleaning shop.
Studies have shown that adults living near dry cleaning shops where the perc levels were an average of 14 times the State DOH guideline showed evidence of reduced visual memory, vigilance and reaction time.
The use of coin-operated dry cleaning machines was also thought in one 1996 toxicology paper to be responsible for acute tetrachloroethylene poisoning in 26 adults, including one death.
There have also been studies done on reproductive problems with dry cleaning workers, while a 1993 study in Massachusetts found the risk of leukemia was two to six times higher for those exposed to drinking water contaminated by perc.
The city's Dept. of Health will respond when someone complains, usually about the dry cleaner's odor. From 1995 to 1996, 82 cleaners were cited and more than half were shut down until repairs or operational changes were made. Fifty-one cleaners, three of which were on the DOH list, were cited for certification violations by the DEP.
"The building owner should be concerned by the potential liability if the cleaner renders the apartment above it uninhabitable. The owner has a responsibility of warranty of habitability," Mattei said.
Julie Evans, a partner with the law firm of Wilson Elser Moskowitz Edelman & Dicker, which defends liability eases for owners, is currently defending a dry cleaner who is one of a series of dry cleaner lessees named in a lawsuit brought by a building tenant, where the building owner is also named.
The tenant claims a dry cleaning pipe that ends in front of her apartment window has led to her diagnosis of chronic fatigue syndrome, also known as Epstein Barr Syndrome. DEP tests showed elevated levels of perc in the apartment.
"It is hard to establish a causal link between the injury and the exposure," said Evans, whose medical experts do not believe the condition was caused by perc.
One question in these cases would be if the exposure was significant enough to cause the injury as alleged, she said.
Another question would be i f the owner or dry cleaner had notice of the condition, such as if the tenant complained directly to them or wrote a letter.
For building owners, she said, a legitimate claim might be where the pipe was visible, say from the street, and therefore might constitute notice.
"We are looking at which dry cleaner may have done construction and caused a condition to be created, and that could constitute notice," Evans added.
Another issue for building owners is whether or not to have the property tested, because that in and of itself would constitute notice.
"Once you test, you are on notice of a potential problem," Evans explained, and the argument, if there is a claim, is that you should have known, and the testing obviates that defense. "A serious problem would be if the owner tests and then does nothing to correct."
But Evans says "good conduct bears well before a jury," and if you test, be prepared to have the condition corrected. "I would like to have that kind of evidence to put before a jury," she said.
"With every new claim, there is a proliferation of lawsuits and it goes with the territory," said Seitz.
Some owners are already trying to make their buildings safer. When one CHIP member took over management of a building, the tenant above the dry cleaner had just moved out. Margulies says the fumes were so bad they couldn't even clean out the apartment. All the pipes were badly corroded from the chemicals, yet the tenant had never complained.
To make the unit habitable until the dry cleaner's lease was up, a major renovation was undertaken with the consent of the owner. They ripped up the sub-flooring, laid down a sheet of heavy plastic, then put in new sub-flooring, roofing material and then more sub-flooring and then the floor.
"It worked quite well in a situation where the floor plan fit almost exactly over the dry cleaners, so by caulking and sealing, they were able to dramatically improve the quality of the apartment," said Margulies. "But it cost thousands of dollars and was an extreme method. But when they had to relet the apartment, they couldn't imagine anyone taking it with the odor."
That work was done just to keep the strong fumes at bay, and in fact, the manager later treated his office floor the same way - just to keep the ground-floor restaurant's odors away.
Spills a Problem
But perc in not just a smelly gas, and exists in a liquid form to dry clean clothes. If it is improperly stored, say in a plastic milk jug, it will eat through that within months.
The Bronx school building had originally been constructed to house the dry cleaning plant. To protect against ground contamination it had a concrete layer, a layer of insulation and a layer of concrete.
"The perc sank through the first layer of concrete, heavily contaminated the insulation layer, and sank through concrete and contaminated the second layer," said Mattel. "Perc can be absorbed into and outgassed from many kinds of materials."
While perc fumes are the most frequent source of complaint, accidental spills also occur from time to time.
Green's report cites several incidents, some where adjoining commercial and residential tenants were affected, as well as dry cleaning employees and emergency workers.
A spill in the sub-basement cleaner of the Grand Hyatt Hotel in October 1996 brought out the Fire Dept. and EMS when workers were overcome by fumes after an estimated 20 gallons of perc leaked.
In the same month, at a Bay Terrace strip mall, the rug in the adjacent Stay Slim Diet Center became contaminated when a cleaning worker tried to change a filter and didn't realize the machine was full of perc.
When a boiler malfunctioned in January 1992, the equipment cracked in a Manhattan dry cleaners and contaminated the apartment upstairs.
A Brooklyn cleaner was transferring perc with a garden hose from a basement storage drum when five gallons spilled. The Fire Dept. ordered two apartments evacuated and the DEP Haz-Mat unit found air levels 5,000 times the State guideline.
Information from the DEP provided to Green's office on the number of certified cleaners found 55 percent of the 1,660 total, or 910, were in residential buildings.
While Staten Island had 20 percent located in residential buildings, 79 percent of the Manhattan dry cleaners were in residential buildings. Brooklyn had 66 percent, Queens 37 percent and The Bronx 29 percent, although Mattei said there is a general feeling that there are many more in The Bronx operating without proper certification.
Margulies noted, "Even if a dry cleaner is wonderfully ventilated and barriers are in place, they are not out in a field, and the odor vents into a courtyard and back up into the apartments."
The significance of the problem and the potential income from a solution has not been lost on private industry. There are several companies developing non-toxic perc replacements and equipment, including some that use plain water with highly computerized equipment.
"By the time we get to the fifth generation machines, they will probably not use perc," predicted Commissioner Miele.
But until alternates are widely distributed, and whether or not the city eventually bans dry cleaners from residential buildings, the experts say all building owners should be knowledgeable when and if renting to dry cleaners.
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|Publication:||Real Estate Weekly|
|Date:||Nov 5, 1997|
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