Practical tips for managing the risks of PCBs in building materials | Beveridge & Diamond PC

Although polychlorinated biphenyls (PCBs) have not been manufactured in the United States for over forty years, they continue to be found in building materials, including caulking and jointing materials, paint, siding, roofing and lightweight ballasts. PCBs are more common in structures built or renovated between 1950 and 1980. The continued presence of PCBs can create hazards for building owners and material manufacturers. To mitigate these risks, it is important to identify, remove and properly dispose of construction materials containing PCBs.

Risks of litigation

The current wave of litigation over PCBs in building materials centers on schools. A Washington state jury recently awarded $ 185 million to three teachers who claimed that PCBs in fluorescent light ballasts caused them brain damage. These plaintiffs are only the first of about 200 in the case. In 2016, a California judge ordered the Santa Monica-Malibu School District to remove all PCBs from two schools by 2019. The recent high verdict in Washington will likely encourage other plaintiffs to pursue similar lawsuits.

The Toxic Substances Control Act (TSCA) governs the use and disposal of PCBs. Under the TSCA, any building material containing at least 50 parts per million (ppm) of PCBs is considered a “prohibited use” and must be removed.

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and its state analogues impose strict liability on owners and operators of facilities that have released hazardous substances or arranged for their disposal. In the context of building materials, this can mean a liability for owners and operators of buildings where PCBs from building materials have been released to soil, groundwater or stormwater. It can also mean a potential liability for parties who dispose of PCB contaminated materials during building renovations and demolition. PCB disposal projects are complex and involve close regulatory oversight.[i]

Best practices

1. Identification of construction materials containing PCBs

While building owners and operators are not required to test building materials for PCBs if they are not disturbed or removed, owners and operators may voluntarily test building materials they suspect may contain harmful substances. PCB. If owners or operators decide to voluntarily test, test indoor air, take wipe samples from building surfaces, review building records, and compile an inventory of materials that may contain PCBs can help the owner or the owner. ‘building operator to refine the test locations. Any sampling plan should take into account current and future plans for building and project remediation goals. Rather than testing, a building owner or operator can also assume that all products containing suspected PCBs contain more than 50 parts per million (ppm).

The EPA recommends that owners or operators prioritize the disposal of materials containing PCBs taking into account PCB concentrations, the condition of materials containing PCBs (for example, if the caulk cracks or breaks) ‘tortoiseshell), the accessibility of materials to building occupants, and whether the materials containing PCBs are found in areas with higher occupancy density. In particular, caulk can contain up to 50% PCBs and even caulk at lower concentrations can cause problems if it peels, becomes brittle, or cracks.

2. Planning

PCBs are more likely to be released from a building during a downgrade or renovation, so it is especially important to test materials for PCBs when planning a demolition or renovation. Identifying materials containing PCBs before work begins will help owners and construction operators determine whether they need to expand the scope of the retrofit to include the disposal of PCB waste.

A party that is considering removing construction materials containing PCBs may need to obtain EPA approval before starting the project, and must complete a reduction plan for removal, disposal and a additional sampling. Operators and owners should consider controls to prevent releases of PCBs to surrounding stormwater and surface water, and such controls may be required if construction activity is permitted under the Clean Water Act.

3. Elimination

If the building owner / operator finds PCBs in concentrations greater than 50 ppm or assumes that they are present, the building materials should be removed for disposal as bulk product waste containing PCBs. If an owner or operator discovers materials containing PCBs, they should also determine whether the PCBs have migrated from the original PCB-containing material to surrounding porous substrates such as brick or concrete. These substrates, if contaminated, should be disposed of as PCB remediation waste, unless they are still attached to the PCB contaminated material, in which case the material and substrate should be disposed of as PCB. waste products in bulk.

Anyone who stores, transports or disposes of PCBs should notify the EPA. The EPA in turn will issue an EPA identification number. Maintaining waste manifests and other disposal records is an important part of TSCA compliance. A party may also need to complete a reduction report and keep it on file for three to five years.

Resources and draft guidelines

Both the EPA and the Washington Department of Ecology have recently published fact sheets on PCBs in building materials. The EPA encourages people to contact the regional PCB coordinator in their area for more information on how to properly handle PCBs.

For property owners and operators in Washington, Ecology is currently drafting a guide to PCBs in building materials, which Ecology plans to publish by December 2022. This guide will help identify and characterize PCBs in building materials. , properly manage PCB sources during demolition and renovation, understand the potential costs associated with demolition and renovation, and understand TSCA and Washington State regulatory requirements for PCBs in building materials. construction.

[i] The Rainier Commons (former Rainier Brewery) illustrates the complexity of a PCB reduction project. Some paints containing PCBs with concentrations above 50 ppm have been identified. The project work plan outlines the paint removal plans and coordination with the EPA and building tenants.

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