New Hampshire Bar Association
About the Bar
For Members
For the Public
Legal Links
Publications
Newsroom
Online Store
Vendor Directory
NH Bar Foundation
Judicial Branch
NHMCLE

Set Your Business Apart - Advertise with NH Bar News!

Trust your transactions to the only payment solution recommended by over 50 bar associations.
New Hampshire Bar Association
Lawyer Referral Service Law Related Education NHBA CLE NHBA Insurance Agency
MyNHBar
Member Login
Member Portal
Casemaker

Bar News - September 14, 2012


Environmental & Natural Resources: PCBs in Construction Materials: Budget-Breaker and Deal-Killer

By:

Discovering polychlorinated biphenols (PCBs) in building materials is an unwelcome surprise, whether one is assessing deteriorating materials, renovating, demolishing, buying, or selling a structure.

Historically, to the extent people thought about PCBs, it was as a component of the dielectric fluid used in electrical transformers and capacitors. However, PCBs have multiple chemical properties that made them useful in numerous applications they are generally stable, non-flammable, and have excellent insulating and plasticizing qualities. Consequently, from roughly the 1930s until the 1970s, PCBs were added to common building materials such as paints, caulking, coatings, and sealants. PCBs are a probable human carcinogen and may also harm the immune and nervous systems, and affect reproductive health. In the late 1970s, the United States banned the manufacture, processing, distribution in commerce, and use of PCBs via the Toxic Substance Control Act (TSCA), except in a "totally enclosed" manner or as otherwise authorized by the United States Environmental Protection Agency (EPA). In late 2009, the EPA issued guidance for schools regarding the proper management of PCBs in caulking. Since then, the awareness of PCBs in building materials has expanded to include a broad range of materials and from their use in schools and institutions serving other higher-risk populations to structures of all varieties.

Informed decision-making regarding building materials that may contain PCBs is the best course of action. Careful upfront planning to address the potential impacts to budget and timeline is essential. Once PCBs are discovered in building materials at levels equal to or exceeding 50 parts per million, TSCA requires assessment, management (generally removal), and disposal as PCB bulk products. The PCB regulations (40 CFR 761.62) provide for three clean up and disposal options for PCB bulk products: (1) performance-based disposal; (2) disposal in solid waste landfills; (3) risk-based disposal. Detailed regulatory requirements must be followed in using any of these options. Also applicable are federal laws and/or state iterations of the Resource, Conservation and Recovery Act and Occupational Health and Safety Administration laws, as well as local regulations.

PCBs in building materials will often leach into adjacent porous building materials, such as concrete or brick, and will weather into air or soil. Testing of adjacent materials is generally necessary in order to properly characterize PCBs. Adjacent materials often require additional remediation, which is subject to different TSCA requirements for PCB remediation waste. The EPA is currently considering a guidance reinterpretation that may allow adjacent materials to be remediated and disposed of using the same standards applied to PCB-containing building materials.

The PCB regulations (40 CFR Section 761.61) provide for three clean-up and disposal options for PCB remediation waste: (1) self-implementing clean-up and disposal, (2) performance based disposal, and (3) risk-based clean-up and disposal. Each of these categories is subject to a complete set of regulatory requirements. Remediation is often complicated by the fact that removal of certain building materials can impact the structural integrity of the building.

Remediating PCBs in building materials is notoriously expensive. Specific assessment, testing, worker training, remediation, and disposal requirements apply and require EPA approval. Even a project involving something as seemingly simple as replacement of a few windows sealed with caulking containing PCBs recently cost tens of thousands of dollars in characterization, remediation, and disposal costs. Similarly, a school recently initiated a substantial building renovation without considering the potential for discovery of PCBs in building materials. Upon discovery of PCBs in building materials, the school spent approximately $1 million from the renovation budget for characterization, remediation and disposal of the discovered PCBs.

Delays add to the cost when PCBs are found. Initial discovery of PCBs in building materials generally occurs as part of a Phase I Environmental Site Assessment. Often the consultant preparing the scope of work for Phase I will suggest supplemental assessments such as asbestos, lead paint, and PCBs in building materials based on the age of the building or major renovations performed there. After testing shows regulated levels of PCBs in building materials, it is necessary to fully characterize the building materials in accord with TSCA. Once the materials are characterized, a remediation plan is developed with a consultant and must be approved by EPA. After the remediation plan is approved, remediation may begin. Remediation work is subject to verification testing and additional work may be required. The timeline to close a deal or complete a renovation may be extended for months to complete the necessary assessment, remediation planning and approval, remediation, and verification of remediation.

Often there is no legal mandate requiring testing of building materials for PCBs. If a decision is made to test, and PCBs are present at levels that exceed the relatively low applicable cleanup standards, however, then the PCBs must be addressed in compliance with TSCA (and any other applicable state and local requirements). Avoiding testing in order to avoid compliance with TSCA is unwise.

Illegal use, management, or disposal of building materials containing regulated levels of PCBs presents a real risk to human health and the environment and can result in substantial penalties ($37,500 per day, per violation and, for knowing violations, criminal penalties and imprisonment). Even sophisticated entities with substantial experience in environmental issues can be surprised by the impacts of the discovery of PCBs in building materials. Owners of buildings that were either built in the pertinent time frame or had significant renovations in that period should carefully consider the likelihood of PCBs in building materials and plan for addressing those issues from a financial and timing perspective.

Joanna B. Tourangeau of Drummond Woodsum & MacMahon in Portland, is licensed to practice in NH and Maine.



NHLAP: A confidential Independent Resource

Home | About the Bar | For Members | For the Public | Legal Links | Publications | Online Store
Lawyer Referral Service | Law-Related Education | NHBA•CLE | NHBA Insurance Agency | NHMCLE
Search | Calendar

New Hampshire Bar Association
2 Pillsbury Street, Suite 300, Concord NH 03301
phone: (603) 224-6942 fax: (603) 224-2910
email: NHBAinfo@nhbar.org
© NH Bar Association Disclaimer