Practical Tips for Managing the Risks of PCBs in Building Materials
Even though polychlorinated biphenyls (PCBs) have not been manufactured in the U.S. for over forty years, they continue to be present in building materials, including in caulk and joint materials, paint, siding, roofing, and light ballasts. PCBs are more common in structures built or renovated between 1950 and 1979. The ongoing presence of PCBs can create risks for building owners and material manufacturers. Where appropriate, identification, removal, and proper disposal of building materials containing PCBs may help mitigate these risks.
The current wave of litigation on PCBs in building materials is focused on schools. A jury in Washington State recently awarded $185 million to three teachers who claimed that PCBs in fluorescent light ballasts caused them brain damage. These plaintiffs are just the first of about 200 in the case. In 2016, a judge in California ordered the Santa Monica-Malibu school district to remove all PCBs from two schools by 2019. The recent high-dollar verdict in Washington will likely embolden additional plaintiffs to bring similar suits.
The Toxic Substances Control Act (TSCA) governs the use and disposal of PCBs. Under TSCA, the continued use of any building material containing at least 50 parts per million (ppm) of PCBs is considered a “prohibited use.” Despite this, EPA recommends that building owners and operators focus on removing PCB-containing building materials during planned renovations and repairs.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and its state analogues impose strict liability on owners and operators of facilities that released hazardous substances or arranged for their disposal. In the building materials context, this can mean liability for owners and operators of buildings where PCBs from building materials were released into soil, groundwater, or stormwater. It can also mean potential liability for parties that dispose of PCB-contaminated material during building renovations and demolition.
PCB removal projects are complex and can involve close regulatory oversight.[i] The “best practice” tips below are not a comprehensive list of the many requirements that apply to management of materials containing 50 ppm or more of PCBs.
1. Identification of PCB-Containing Building Materials During Renovations and Demolition
PCBs are most likely to be released from a building during demolition or renovation, so it is particularly important to identify materials that may contain PCBs when planning a demolition or renovation.
To identify materials planned for disposal that may contain PCBs, building owners and operators should determine when the building was constructed and/or previously renovated. If any portion was constructed or most recently renovated between 1950 and 1980, building owners and operators should identify materials that may contain PCBs, such as caulk and fluorescent light ballasts.
After identifying materials planned for disposal that are suspected of containing PCBs, owners and operators may voluntarily test building materials they suspect contain PCBs, or they may assume all suspected PCB materials contain greater than 50 ppm of PCBs. If owners or operators decide to test voluntarily, reviewing building records and compiling an inventory of materials that may contain PCBs can help the building owner or operator narrow down testing locations. Any sampling plan should take into account current and future plans for the building and project remediation goals.
Identifying materials containing PCBs prior to beginning work will help owners and operators determine whether they need to expand the scope of work for the renovation or demolition to include disposal of PCB waste.
A party planning to remove PCB-containing building material may need to obtain approval from EPA prior to starting the project, and should complete an abatement plan for removal, disposal, and additional sampling. Operators and owners should consider controls to prevent releases of PCBs into surrounding stormwater and surface water conveyances, and such controls may be required if the construction activity is permitted under the Clean Water Act.
If the building owner operator finds PCBs in concentrations greater than 50 ppm in building materials that will be removed, or assumes that such concentrations are present, the removed building materials must be disposed of as PCB bulk product waste. If an owner or operator finds PCB-containing materials, they should also determine if PCBs have migrated from the original PCB-containing material into surrounding porous substrates such as brick or concrete. These substrates, if contaminated, will need to be disposed of as PCB remediation waste, unless they are still attached to the PCB bulk product material, in which case both the material and the substrate should be disposed of as bulk product waste.
With certain exceptions, generators of PCB waste and owners and operators of facilities storing PCB waste prior to disposal must notify EPA. EPA will, in turn, issue an EPA identification number. Maintaining waste manifests and other records of disposal is an important component of TSCA compliance. A party may also need to complete an abatement report and maintain it on file for three to five years.
Resources and Draft Guidance
EPA and the Washington Department of Ecology have both recently issued fact sheets on PCBs in Building Materials. EPA encourages people to contact the Regional PCB Coordinator in their area for more information on how to properly address PCBs.
For property owners and operators in Washington, Ecology is currently drafting guidance on PCBs in building materials, which Ecology plans to publish by December 2022. This guidance will help with identification and characterization of PCBs in building materials, proper handling of PCB sources during demolition and renovation, understanding the potential costs associated with demolition and renovation, and understanding TSCA and Washington state regulatory requirements related to PCBs in Building Materials.
With an office in Seattle, WA, Beveridge & Diamond assists clients in litigation and allocations at CERCLA sites, including complex, large-scale sites. We advise clients on compliance with TSCA and represent clients in EPA and Ecology enforcement matters. For more information, please contact te authors.
[i] The Rainier Commons (old Rainier Brewery) is illustrative of the complexity of a PCB abatement project. Some PCB paint with concentrations above 50 ppm was identified. The work plan for the project outlines plans for removal of paint and coordination with both EPA and building tenants.