Bar News - September 20, 2017
Environmental, Telecomm, Utilities & Energy Law: Managing Environmental Concerns in Commercial Renovations
By: Betsy Mason
When the City of Portsmouth recently announced its plans to redevelop the McIntyre Federal Building, which is located on a 2.1-acre parcel in the heart of the city’s historic downtown, it stated upfront that the private developer selected do the job would have to agree to assume the costs and liabilities of cleaning up the hazardous building materials – including asbestos and lead-based paint – known to be present on the site.
Commercial real estate (CRE) developers across New Hampshire are increasingly faced with a similar scenario. As the state’s CRE market continues to tighten, property owners and managers that want to lure tenants with new retail, restaurant and residential amenities are looking to renovate and reuse older buildings rather than build new ones. With this wave of renovation come environmental concerns that, although potentially significant, can be managed through careful planning and attention to federal, state and local requirements.
PCBs in Caulk
Polychlorinated biphenyls (PCBs) were used in caulk between about 1950 and 1979 because of their water resistance and elasticity. Anyone planning renovations to a building built or renovated during that time period should prepare an abatement plan focused on safely removing PCB-containing caulk, cleaning up adjacent building surfaces, and preventing further contamination.
PCBs have been detected in caulk in concentrations as high as 440,000 parts per million (ppm) in buildings built or renovated between about1950 and 1979 (the United States Environmental Protection Agency (EPA) prohibits the use of PCBs at levels above 50 ppm). According to EPA, PCBs may cause cancer, as well as immune system suppression and damage to the liver and reproductive and nervous systems. Exposure can occur by touching PCB-containing caulk (dermal contact), hand-to-mouth contact after touching PCB-containing caulk (ingestion) and breathing in dust contaminated with PCBs or PCBs off-gassed from undisturbed caulk (inhalation).
At a minimum:
- Caulk should be tested and, if found to contain PCBs more than 50 ppm, removed and disposed of in an authorized landfill, incinerator or other disposal facility.
- Building materials, such as brick or concrete, that are contaminated by more than 50 ppm PCBs from caulk must also be removed and disposed of in accordance with federal regulations (40 CFR Part 761).
- The removal of caulk and building materials known or suspected to contain PCBs must be managed to minimize workers’ exposure and prevent the release of PCBs into the environment.
Asbestos was widely used in building materials because of its durability and heat resistance. Asbestos-containing materials (ACM) include fireproofing, pipe and boiler thermal insulation, roofing and siding shingles, vinyl floor tiles and textured paint and patching compounds used on walls and ceilings.
ACM poses a health hazard when asbestos fibers become airborne and are inhaled. However, intact, sealed or otherwise undisturbed ACM has not been identified as a health hazard to building occupants or workers.
All commercial buildings are subject to the New Hampshire Department of Environmental Services’ (NHDES’s) asbestos regulations (Env-A 1800). To ensure compliance with these regulations, building owners or developers should, among other things:
- Prior to starting any building demolition or renovation work, engage a trained asbestos inspector to identify ACM present in the building and determine whether it will be disturbed by the proposed work.
- Remove any ACM that may be disturbed prior to the start of the proposed work (failure to do so can result in penalties).
- For building demolition work, provide written notification to NHDES and the appropriate local government official at least 10 working days before any demolition activity occurs (even when no asbestos is present). For other renovation or specific maintenance work, provide written notification at least 10 working days prior to any “major asbestos abatement project” (as defined in Env-A 1802) conducted as part of the work.
- Make safe work practices designed to prevent disturbance and release of ACM part of any renovation plans. These should reflect NHDES’s requirements for handling ACM, including the use of special equipment and specific work practices relating to containment areas and packaging and labeling of waste ACM.
- Comply with NHDES’s solid waste regulations, including by wetting waste ACM, sealing it in leak-tight, properly labeled containers, and disposing of it only in approved disposal sites.
EPA was considering extending its Lead Renovation, Repair and Painting Rule – which currently requires contractors working on homes, child care facilities and pre-schools built before 1978 to be certified by EPA and follow lead-safe work practices – to commercial and public buildings. After issuing the rule in 2008, EPA was sued for failing to address potential lead hazards created by the renovation of commercial and public buildings. It agreed to determine whether such renovations create lead hazards and if so, propose work practice and other requirements.
In May 2014, EPA issued an advanced notice of proposed rulemaking for public review and comment. The comment period closed in June 2014, and to date, EPA has not issue a proposed rule.
In sum, owners seeking to renovate and reposition aging commercial buildings should be ready to tackle environmental issues – including PCBs and asbestos – that must be properly addressed to keep projects on budget, on schedule and off of the desks of EPA and NHDES enforcement staff. The best way to achieve these goals is to hire and plan ahead with knowledgeable, licensed professionals who know the technical and legal requirements to staying in compliance.
Betsy Mason is an environmental and land use attorney in McLane Middleton’s Woburn, Massachusetts, office.