Practical advice for managing the risks associated with PCBs in building materials | Beveridge & PC Diamond


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 gasketing materials, paint, coatings, roofs and light ballasts. PCBs are most 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 properly identify, remove and dispose of building materials containing PCBs.

Litigation risks

The current wave of litigation over 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 were causing them brain damage. These plaintiffs are just the first of about 200 in the case. In 2016, a California judge order 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 file similar lawsuits.

The Toxic Substances Control Act (TSCA) governs the use and disposal of PCBs. Under 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 may mean the liability of building owners and operators where PCBs from building materials have been released to soil, groundwater or stormwater. It can also mean potential liability for parties disposing 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 Building Materials Containing PCBs

Although building owners and operators are not required to test building materials for PCBs if they are not removed or disposed of, owners and operators may voluntarily test building materials they suspect may contain PCBs. If owners or operators decide to test voluntarily, testing indoor air, obtaining wiping samples from building surfaces, reviewing building records, and compiling an inventory of materials that may contain PCBs can help the owner or building operator to limit test locations. Any sampling plan should consider current and future plans for building and project remediation goals. Rather than testing, a building owner or operator may also assume that all suspected PCB manufactured products contain more than 50 parts per million (ppm).

APE recommended that owners or operators prioritize the removal of PCB-containing materials taking into account PCB concentrations, the condition of the PCB-containing materials (for example, whether caulking is cracking or peeling), the accessibility of the materials to building occupants and whether the materials containing PCBs are in high occupancy areas. In particular, putty can contain up to 50% PCBs and even putty at lower concentrations can cause problems if it peels off, breaks or cracks.

2. Planning

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

A party planning to remove building materials containing PCBs may need to obtain EPA approval before beginning the project, and must complete a reduction plan for removal, disposal, and disposal. additional sampling. Operators and owners should consider controls to prevent releases of PCBs to storm and surrounding surface waters, and such controls may be necessary if the construction activity is permitted under the Clean Water Act.

3. Elimination

If the building owner-operator finds PCBs at concentrations greater than 50 ppm or suspects that they are present, the building materials must be removed for disposal as bulk PCB 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 to 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 contaminated material, in which case the material and substrate should be disposed of as as bulk product waste.

Anyone storing, transporting, or disposing of PCBs must notify the EPA. The EPA, in turn, will issue an EPA ID number. Maintaining waste manifests and other disposal records is an important part of TSCA compliance. A party may also be required to complete an Clearance Report and keep it on file for three to five years.

Resources and Draft Guidelines

APE and the washington Department of Ecology both recently published fact sheets on PCBs in building materials. The EPA encourages people to contact the CCP Regional Coordinator in their area for more information on how to properly approach PCBs.

For real estate owners and operators in Washington, Ecology is currently writing advice on PCBs in Building Materials, which Ecology plans to publish by December 2022. These guidance will help identify and characterize PCBs in building materials, properly manage PCB sources during demolition and renovation , understand potential costs associated with demolition and remodeling, and understand TSCA and Washington State regulatory requirements for PCBs in building materials.

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

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