How To Manage Pcb In Building Materials

Transcription

1 By Diane C. Bellantoni, Loni S. Gardner, and John Hankins 18 Connecticut Lawyer April 2010 Visit

2 PCBs have been banned for the last 30 years for most uses. But, unfortunately, high levels of PCBs are present in many buildings and facilities constructed prior to the PCB ban, including most recently some schools. Lisa P. Jackson, EPA Administrator, September Recent headlines in Connecticut regarding the discovery of polychlorinated biphenyls ( PCBs ) in caulking at technical high schools highlight the emerging concern over the presence of PCBs in building materials. 2 PCBs also have recently made the news in other northeastern states, including New York and Massachusetts, where they have been found in high concentrations in caulking in schools and other buildings. 3 These discoveries raise more questions than they answer. Should schools and other buildings be tested for PCBs? What risks do these PCBs present to human health and environment? What should be done about PCB contamination that is discovered? Reprinted by permission of Connecticut Lawyer. The United States Environmental Protection Agency s ( EPA ) recent focus on PCBs in caulk has put the regulated community on notice that PCB contamination in building materials must be managed. 4 Unlike the case with its distant cousins, lead-based paint and asbestos, which have been actively abated for over two decades, the presence of PCBs in building materials has only recently grabbed the attention of building owners and contractors. It is safe to say that most renovation and demolition projects typically have proceeded without consideration of the potential presence of PCB-containing building materials. The discovery of PCB-contaminated building materials after a renovation or demolition of a building has commenced, however, often results in extensive delays and millions of dollars of added costs. 5 With the recent publicity regarding PCBs in schools and other sensitive settings, and with increased testing requirements being imposed by disposal facilities, the potential presence of PCBs in building materials and the risks and liabilities related to any contamination found needs to be considered by owners and contractors side-by-side with the issues of lead-based paint and asbestos before buildings are sold, renovated, or demolished. Moreover, if PCB-containing building materials are suspected, early planning can significantly reduce compliance costs and delays. PCB pollution in nature was discovered at a rather late date, but considering the circumstances, it is perhaps surprising that it was discovered at all. Sören Jensen, What Are PCBs? PCBs are man-made organic chemicals that were manufactured in the United States from 1929 until their manufacture was banned in PCBs were an ideal chemical for many applications in the industrial age. Because of their unique properties they are non-flammable, chemically stable, and a good insulator and plasticizer PCBs found their way into many different building materials including caulk, paint, coatings, sealants, roofing and siding materials, adhesives, and mastics. In addition, PCBs were used in hundreds of industrial applications, primarily in oils associated with electrical equipment such as capacitors and transformers. Connecticut Lawyer April

3 Although they had been used industrially for years, the accumulation of PCBs in nature was discovered inadvertently in 1964 by Danish scientist Sören Jensen. While investigating DDT levels in human blood, he observed a number of anomalous peaks in his results. It took about two years to answer the question of the mysterious peaks; PCBs were finally identified as being ubiquitous in nature in plants, fish, birds, and humans in Once in the environment, PCBs, like DDT, were found to be persistent, bioaccumulative, and toxic. Exposure to PCBs may result in serious health effects. PCBs have been demonstrated to cause cancer as well as a variety of other adverse health effects on the immune system, reproductive system, nervous system, and endocrine system. In the 1970s, the health and environmental risks associated with PCBs became a concern. By 1976, Congress, through the Toxic Substances Control Act ( TSCA ), had directed the EPA to ban the manufacture of PCBs and regulate their use and disposal. Under TSCA, PCBs were phased out and banned from production in Notwithstanding the ban, PCBs are still present in many materials in buildings that were constructed or underwent major renovations before the EPA s ban. The concern is that, as these materials age, they may deteriorate and break down into particles and vapors that contain small amounts of PCBs that can result in releases to the air and the ground (e.g., soils). PCB-impacted materials may also contaminate adjacent materials such as concrete, bricks, and window frames. The environmental and safety risks associated with these releases are not completely known. The EPA is just starting to collect data to determine whether the levels of PCBs in schools are high enough to be harmful to staff and students. In addition, during renovation or demolition, workers may be exposed to PCB risks, and any building materials that are found to contain greater than 50 ppm PCBs must be properly managed and disposed of as PCB waste. It s really an emerging issue. We don t want to scare people, but the bottom line is it s a fact and we have to deal with it. Kim Tisa, PCB coordinator for the EPA s New England office, September Legal Framework and Requirements Section 6(e)(2) of TSCA, 15 U.S.C. 2605(e)(2), prohibits the manufacture, processing, distribution in commerce, or use of polychlorinated biphenyl in any manner other than in a totally enclosed manner, unless authorized by the EPA. Section 6(e) of TSCA also requires the EPA to establish PCB regulations. The EPA established the first PCB Regulations in In 1998, the EPA promulgated the first major revision to these regulations, appropriately named the PCB Mega Rule to address all aspects of PCBs, including PCB manufacture, processing, distribution, use, clean-up, storage, labeling and marking requirements, and disposal. 10 The Mega Rule establishes three basic classifications of materials based on their concentrations of PCBs: (1) less than 50 parts per million ( ppm ), (2) greater than 50 ppm and less than 500 ppm, and (3) greater than 500 ppm. 11 Disposal options for PCB waste under the Mega Rule are based on the PCB concentration. Products containing PCBs with concentrations under 50 ppm are not regulated by TSCA and do not require authorization for use. 12 Thus, the continued use of building materials containing concentrations of PCBs of less than 50 ppm is implicitly authorized. By contrast, PCBcontaining building material, such as paint or caulk, containing concentrations of PCBs at 50 ppm or greater is considered to be a PCB bulk product waste. 13 Such material containing PCBs at 50 ppm or greater is not authorized for use and must be disposed of as PCB bulk product waste in accordance with the regulations. 14 There is, however, no affirmative legal obligation at this time to test or investigate building materials for PCBs under TSCA or the PCB Mega Rule. Notwithstanding the absence of a statutory or regulatory requirement to test building materials for the presence of PCBs, there is potential risk associated with not doing so. Under TSCA, the generator of PCB waste is required to ensure that it is handled and disposed of properly. Therefore, if there is PCB contamination in the building, then any PCBcontaminated material is required to be handled and disposed of in accordance with the regulations. Further, if testing finds PCB contamination above the regulatory limit, then the regulations require removal of the PCB-impacted materials in accordance with the regulations. The failure to comply with the PCB Regulations could result in civil penalties of up to $37,500 per day per violation. 15 Criminal penalties are also available for any willful or knowing violation of up to $25,000 per day per violation and/or imprisonment for up to one year. 16 EPA s Focus on Caulk Caulking materials have been discovered in older buildings, including schools, containing extremely high concentrations of PCBs. According to the EPA, PCBs have been detected in caulking in concentrations of 100,000 ppm or higher, with reported detections as high as 200,000 ppm. 17 While the prevalence of PCB-containing caulk is not known, the EPA is concerned that the presence of PCBs could be widespread in caulk in buildings constructed between As Administrator Jackson explained, [the EPA is] concerned about the potential risks associated with exposure to these PCBs and we re recommending practical, common sense steps to reduce this exposure as we improve our understanding of the science. For building owners and administrators who want to take added and more aggressive immediate steps, the EPA is providing additional guidance to help them identify the extent of potential risks and determine whether mitigation steps are necessary. Local communities and governments have constrained resources that make this a particularly challenging and sensitive situation. 19 For these reasons, the EPA has developed several guidance documents to address its concerns and has recommended a series of best practices (e.g., improving ventilation, cleaning frequently to reduce dust, using vacuums with high efficiency particulate air filters, washing childrens hands and toys often) to minimize the potential exposure to PCBs in caulk. 20 To further address concerns about exposure to PCBs and supplement the best practices, EPA guidance recommends air testing in buildings where PCBs are suspected in building materials, such as caulk, followed by material testing if necessary. While neither air nor material testing is required, the EPA does warn that it has en- 20 Connecticut Lawyer April 2010 Visit

4 forcement tools that it will not hesitate to use in situations where there are significant risks to public health. 21 The EPA also has the authority to obtain an order to require testing in order to address situations presenting an imminent hazard. 22 Although the continued use of building materials, such as caulk, that contain greater than 50 ppm PCBs is prohibited under the EPA regulations, 23 the EPA has stated that schools will in most cases be a low priority for enforcement. 24 For now, the EPA is most concerned with schools, in particular, following the best practices and taking the steps that the EPA recommends to reduce health risks. In addition to encouraging the use of the recommended best practices, the EPA s focus, at this point, appears to be on data collection. Research conducted by the EPA over the next several years will be focused on 1) characterizing potential sources of PCB exposures in schools (e.g., caulk, coatings, light ballasts); 2) investigating the relationship of these sources to PCB concentrations in air, dust, and soil and 3) evaluating methods to reduce exposures to PCBs in caulk and other sources. The research will be used by the EPA to provide further recommendations on how to reduce risks and exposure from PCBs in schools and other buildings. 25 When Should Building Materials Be Tested? Now that it is widely recognized that PCBs were used as a plasticizer in many paints, caulking, and other construction materials used between the 1950s and the late 1970s, it is evident that any building that was constructed or renovated during that timeframe has the potential to contain PCBs. Because public awareness of this issue has been almost non-existent until recently, it has been rare that building materials have been tested for PCBs, even in cases where construction debris is to be disposed at facilities not licensed to accept PCB-containing wastes. Where contractors and owners may be aware of this issue, they may be inclined to take a Don t Ask approach to this question because of the Pandora s Box that can be opened once PCBs are discovered in a building. The EPA has consistently reaffirmed that the TSCA regulations do not require sampling caulk or paints for PCBs, unless such sampling is performed in order to characterize waste materials for disposal purposes. The Don t Ask approach may be appropriate in many cases where buildings are in good condition. Similar to lead-paint and asbestos, if PCB-containing paint and caulking are intact and not flaking or chipping, then there may be no clear pathway of exposure to the occupants of the building and no immediate reason to take action or even understand whether PCBs are present. 26 However, under the present regulatory scheme, scenarios where it may be prudent to conduct testing of building materials for PCBs include the following: Poor Condition of Building Materials. If building materials that were installed during the 1950s to late 1970s are in poor condition, they may flake or chip off and create dust that could expose occupants to PCBs. As an owner of a building where this may be occurring, sampling of the materials that are in poor condition is well-advised to address potential health concerns and future liabilities. Renovation or Demolition. If a building is to be renovated or demolished and materials that could potentially contain PCBs are to be disturbed or removed, a determination should be made whether these materials contain PCBs and whether the concentrations are above the 50 ppm threshold that would trigger TSCA remediation and disposal requirements. Due Diligence. Because the presence of PCBs can significantly impact the cost and feasibility of future demolition or renovation projects, screening for PCBs in building materials should be added to the preacquisition due diligence inquiry for those considering the purchase of buildings constructed prior to Similarly, it will become increasingly common for contractors to specifically exclude PCB disposal costs from their quotations in cases where no information on the presence of PCBs is provided. In cases where PCBs are discovered during the course of the project, this will serve to greatly increase the potential for change orders and out-of-scope costs. Again, a caution regarding sampling once discovered, PCBs in building materials such as caulk or paint that are above 50 ppm cannot be ignored. Building materials that are documented to contain greater than 50 ppm constitute an unauthorized use of PCBs and the regulations require that they be removed, regardless of whether an owner intends to renovate or demolish a building. Furthermore, if greater than 100 kg of PCBcontaining material at concentrations greater than 50 ppm are generated in any one month, obligations under the Connecticut Transfer Act, Conn. Gen. Stat. 22a-134 et. seq. ( Transfer Act ) may be triggered. Although the Transfer Act exempts lead paint abatement waste from the definition of hazardous waste, at this time there is no such exemption for PCB remediation wastes at concentrations greater than 50 ppm. How Should Tests Be Conducted? The TSCA regulations and much of the guidance on PCB sampling are largely geared toward sampling where spills of PCB-containing liquids have occurred, such as those from transformers and capacitors manufactured prior to The EPA is now well aware of the issue of PCBs in building materials and is creating and adapting PCB guidance for the purpose of testing and remediation of these materials within the context of the original regulations. In some cases, however, trying to satisfy the TSCA regulations that were originally written for a different primary purpose can seem counter-intuitive and overly burdensome when compared to procedures that contractors and consultants have employed for other contaminants such as asbestos and lead-based paint. Some or all of the following types of samples are typically collected during the characterization and abatement of PCBs in building materials: Bulk Samples of Potential PCB-Containing Material. If PCBs are suspected in a material that is to be removed, it is critical that samples be collected of the materials in question to determine whether the 50 ppm TSCA threshold value is exceeded. Materials such as caulk and paint are typically collected as bulk samples, which involves the actual removal and analysis of a small volume of the material of interest. If a source material exceeds 50 ppm and TSCA applies, the source material must be removed and samples of the underlying substrate should be collected following the removal. Wipe Confirmation Samples (for nonporous surfaces). For non-porous surfaces Connecticut Lawyer April

5 such as metal, glass, ceramics, and polished stone, the EPA accepts post-abatement Wipe Samples. Bulk Confirmation Samples (for porous surfaces). If a building material containing PCBs above 50 ppm is abated and is in contact with a porous substrate such as wood or concrete, the underlying material must be sampled following the abatement using a bulk sampling procedure similar to that used in the original bulk sampling of the source material. EPA guidance specifies that the bulk sample from the substrate must be collected within one centimeter of the surface that was in contact with the PCB source material. Sampling frequency, analytical techniques, and action levels are specified in EPA s guidance. Air Samples. Although not specifically required by TSCA, EPA guidance recommends that air samples be collected from sensitive settings where PCBs are suspected and often requires air sampling during and following PCB abatement as a condition of approval for an abatement plan. Air sampling protocols are similar to those that would be employed for the abatement of lead-based paint or asbestos. In cases where potential PCB-containing building materials are in good condition and where a public concern regarding exposure exists or is anticipated, it may be appropriate to collect air samples to assess whether there is a PCB PREVENT FRAUD FROM DESTROYING YOUR BUSINESS For more information, go to exposure risk in lieu of sampling suspect building materials. Planning Is Critical The need to remove and dispose of PCBs as required by the EPA can add significant time and costs to projects. Therefore, it is important to evaluate the age, type, and renovation history of an existing structure to determine whether any materials should be tested for PCBs. If the plan is to acquire, demolish, or renovate a building that was constructed prior to 1980, or for which major renovations were made between 1950 the late 1970s, consideration needs to be given to the possibility that certain materials used in that building contain PCBs, just as one would presently assume that such materials may contain lead-based paint or asbestos. However, testing protocols should be carefully designed because the materials used in buildings are not always uniform. Unless and until it is proven otherwise, one should also assume that concentrations of PCBs could exceed 50 ppm and that the presence of these materials could have a significant impact on renovation or demolition costs and timeframes. A decision regarding whether to test building materials for PCBs needs to carefully consider the ramifications of this effort since the detection of PCBs at concentrations above 50 ppm could create a mandatory abatement requirement under TSCA A fascinating, insider look at a fraud investigation. F r o m D e t e c t i o n t o P r o s e c u t i o n stephen Pedneault Stephen Pedneault, CPA/ CFF, CFE is the Principal and Founder of Forensic Accounting Services LLC, Glastonbury, CT, a CPA firm specializing in forensic accounting, employee fraud, and litigation support matters. and result in potential Transfer Act obligations. As with many environmental issues, careful advance planning is critical to managing risks with PCBs and avoiding costly liabilities. CL Attorney Diane C. Bellantoni is counsel in Murtha Cullina LLP s Environmental Practice Group where her experience includes air, water and waste permitting, compliance issues, site remediation projects, and transactional matters. Attorney Loni S. Gardner is an associate in the New Haven office of Murtha Cullina LLP, where she practices in the areas of environmental and land use law, and litigation. Attorney John Hankins directs the Environmental Due Diligence Group at Fuss & O Neill, Inc. in Manchester, Connecticut. His practice focuses on transaction-related environmental assessments as well as the assessment and remediation of contaminated sites throughout the Northeast. Notes 1. Quoted in EPA News Release entitled EPA Announces Guidance to Communities on PCBs in Caulk of Buildings Constructed or Renovated Between 1950 and 1978; EPA to gather latest science on PCBs in caulk, Sept. 25, 2009, available at 2. Grace E. Merritt, PCBs Found in Caulking at Three Technical High Schools, Hartford Courant, Feb. 18, 2010, available at EPA Announces Agreement with the City of New York On PCBs in School Caulk, EPA Press Release, Jan. 19, 2010; Beth Daley, PCB Risk Feared at Older N.E. Schools, The Boston Globe, Sept. 6, 2009, at A1. 4. In September 2009, the Environmental Protection Agency ( EPA ) issued guidance focusing on PCB-contaminated caulk at schools and the steps that school administrators and building owners should take to minimize risks associated with this contamination. 5. For example, during a University of Massachusetts Amherst waterproofing and facade repair project for the Lederle Graduate Research Center, PCBs were found in the exterior caulking, in some areas as high as 70,000 ppm. In addition, presumably as a result of the caulk, the soil around the building contained PCBs above state standards. The result was about a two- (continued on page 34) M 22 Connecticut Lawyer April 2010 Visit

6 VOTED: BEST ADR MEDIATION Connecticut Law Tribune Readers 2005, 2006, 2007, 2008 Largest Arbitration Mediation New Lower Fees Same Exceptional Service experienced Located in the CBA Law Center 30 Bank Street, New Britain, CT (860) , Fax (860) Notes Second Circuit (Continued from page 31) 1. See, e.g., Burrell v. Star Nursery, Inc., 170 F.3d 951, 955 (9th Cir. 1999); Watts v. The Kroger Co., 170 F.3d 505, 509 (5th Cir. 1999); Williams v. General Motors Corp., 187 F.3d 553 (6th Cir. 1999). 2. Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 3. See, e.g., Shaw v. Autozone, Inc., 180 F.3d 806 (7 th Cir.1999); Pritchard v. Earthgrains Baking Co., 1999 WL (W.D.Va. Mar. 5, 1999). 4. See, e.g., Miller v. Woodharbor Molding & Millworks, Inc., 80 F.Supp.2d 1026 (N.D. Iowa Jan. 18, 2000); Lancaster v. Sheffler Enterp., 19 F. Supp. 2d 1000 (W.D. Mo. Sept. 3, 1998). 5. Morris v. Southeastern Penn. Transp. Auth., 1999 WL (E.D. Pa. Sept. 28, 1999). 6. Coates v. Sundor Brands, Inc., 164 F.3d 1361 (11 th Cir. 1999). 7. See Kolstad v. American Dental Association, 527 U.S. 526, 545 (1999); Brusco v. United Airlines, Inc., 239 F.3d 848 (7 th Cir. 2001). PCBs (Continued from page 22) year delay on the project and a cost increase of about $2 million. 6. Soren Jensen, The PCB Story, Ambio, Vol. 1, No. 4 (Sept. 1972), pp As Dr. Joren noted, it was much easier to find a connection between the use of substances such as DDT and mercury and negative effects because these chemicals were directly used on seeds or sprayed on plants. However, PCBs did not have this direct use in the environment it enters nature through the back door, e.g., through unintended releases to air or the ground. In the end, Dr. Jensen cautioned that given that the presence of PCBs in nature was discovered by accident, the only way to ensure that the accumulation of other chemicals is found is to have close cooperation between ecologists, chemists and other scientists to facilitate an unbiased search for pollutants at an early stage by systematic analysis. Soren Jensen, The PCB Story, Ambio, Vol. 1, No. 4 (Sept. 1972), pp Although EPA banned the use of PCBs in 1979, the studies that concluded that PCBs cause cancer were done more recently in 1987 (with data limited to Aroclor 1260) and 1996 (data on Aroclors 1016, 1242, 1254). Health Effects of PCBs, EPA Guidance. 9. Quoted in PCB Risk Feared at Older N.E. Schools, supra at A The PCB Mega Rule, 63 Fed. Reg (June 29, 1988) (codified at 40 CFR 750 and 761(1998)). There were subsequent technical revisions to the PCB Regulations in See 40 C.F.R (b)(3). 12. See 40 C.F.R (a)(1)-(4); see also definition of Excluded PCB products at 40 C.F.R Excluded PCB products means PCB materials which appear at concentrations less than 50 ppm Id. 13. Bulk product waste is defined at 40 C.F.R See 40 C.F.R U.S.C. 2615(a); Civil Penalty Inflation Adjustment Rule; 40 C.F.R U.S.C. 2615(b). 17. See EPA Fact Sheet PCBs in Caulk available at caulk-fs.pdf; see also PCB Risk Feared at Older N.E. Schools, supra at A See PCBs in Caulk QA (Sept. 2009) ( Caulk Q&A ) available at epa.gov/pcbsincaulk/caulk-faqs.pdf. 19. Quoted in EPA News Release entitled EPA Announces Guidance to Communities on PCBs in Caulk of Buildings Con- structed or Renovated Between 1950 and 1978; EPA to gather latest science on PCBs in caulk, Sept. 25, 2009, supra. 20. See e.g., Current Best Practices For PCBs in Caulk Fact Sheet: Removal and Clean-up of PCBs in Caulk and PCB-Contaminated Soil and Building Material (Sept. 2009), available at caulk/caulkremoval.pdf; see also Current Best Practices For PCBs in Caulk Fact Sheet: Interim Measures for Assessing Risk and Taking Action to Reduce Exposures (Oct. 2009), available at pcbsincaulk/caulkintermin.htm. 21. See Caulk Q&A at p Id. at p See 40 C.F.R (a)(1)-(4). 24. See Caulk Q&A at p EPA Fact Sheet, PCBs in Caulk. 26. PCBs can enter the air through both dust and volatilization. However, the primary pathway seems to be through particulates similar to lead and asbestos. 27. Clean-up and disposal requirements for waste contaminated by spills of PCBs currently at concentrations greater than or equal to 50 ppm PCBs are found at 40 C.F.R Connecticut Lawyer April 2010 Visit