EPA PCB Reinterpretation Will Help Facilitate Brownfield Development

This post is the first installment of a new series discussing common mistakes and best practices for brownfield development. In this piece, we discuss PCBs in building materials. The unexpected presence of PCBs in building materials is a common source of cost overruns in brownfield redevelopment projects are costs and delays. Recently, EPA announced a re-interpretation of the regulatory status of PCB-contaminated building materials. EPA hopes this re-interpretation will expedite PCB cleanups and reduce PCB exposure risks.

We have previously reported on some lawsuits involving PCBs and brownfield sites. In Shenandoah LLC v. Green Mountain Power  , the purchase had planned to convert a roller mill into a mixed use facility. The purchaser did not perform a phase 1 until three years later when it obtained all of its local permits. The phase 1 identified stained wood flooring that turned out to contain elevated levels of PCBs. The wood flooring had to be removed, a soil management was implemented during construction activities and a vapor mitigation system was installed along with a vapor barrier to serve as engineered controls.

What may be the poster child for what can go wrong at a brownfield site is the case involving the demolition of the Ford Motor automotive assembly plant in Edison, New Jersey. There, Ford entered into a “zero-dollar sales agreement” with a developer to provide 50,000 cubic yards of Recycled Concrete Aggregate (“RCA”) to Edgewood for use as fill material at seven residential projects in exchange for the developer agreeing to remove the material from the Ford site. As it turned out, the RCA contained PCBs that exceeded the residential limits for PCBs and also the commercial limits in some areas. Ford had to remove the contaminated fill and sprawling litigation. See our  post for a more detailed discussion of this case and some other notable contaminated fill cases.

It should be noted that the presence of PCBs in building materials is a relatively recent concern so the experience level of consultants can vary significantly resulting in unanticipated delays and costs. Adding to the uncertainty is that the EPA regional offices are responsible for managing PCB issues and the regional offices have been known to adopt differing interpretations and requirements.

The University of Massachusetts (UMass) recently entered into a settlement with EPA where UMass agreed to abate and implement  management procedures for PCB-contaminated caulking in several buildings at its Amherst campus while agreeing to pay a $75K. Under  the Consent Agreement and Final Order, UMass agreed to replace all windows and PCB-contaminated window glazing compound in the certain  buildings over a 15- year period as those buildings are renovated. In the interim, UMass will implement best management practices for the caulking include encapsulation, periodic inspections monitoring and recording a deed notice.

Background on PCBs and Building Materials

The term PCBs refers to a group of highly stable organic compounds that range from oily liquids to crystalline solids or hard resins. Because PCBs are non-flammable and highly resistant to electricity, PCBs were used in a wide variety of industrial applications. Since many brownfield sites involve old manufacturing or industrial plants, here is the list of common industrial uses of PCBs:

  • Liquid-filled Transformers and Capacitors;
  • Other electrical equipment including voltage regulators, switches, re-closers, bushings, and electromagnets
  • Heat Transfer Equipment;
  • Oil used in motors and hydraulic systems;
  • Lubricating and cutting oils;
  • Fluorescent light ballasts;
  • Cable insulation
  • Inks and Dyes
  • Oil-based paint
  • Coatings and sealants;
  • Thermal insulation material including fiberglass, felt, foam, and cork
  • Roofing and siding materials
  • Gaskets in HVAC systems
  • Caulking in concrete expansion joints in building and paved areas as well as interior and exterior window and door joints;
  • Grout, and;
  • Adhesives/mastic

The third largest use of PCBs was use as a plasticizer in paints and caulks to provide flexibility (e.g. chlorinated rubber paint), water and chemical resistance, and durability. Caulk may contain up to 20% PCBs with concentrations in paints ranging from paints at concentrations of up to 10 %.

As a result, PCBs may be found in buildings constructed/renovated from 1950 to 1978.  PCBs from these materials may leach into wood, concrete and pavement. Building areas that are commonly impacted with PCBs include elevator pits, expansion joints, HVAC equipment, masonry joints, painted surfaces (including concrete sidewalks and pools), porous surfaces, roofs, window and door frames and exterior soils beneath windows.  Some developers have encountered PCBs in concentrations greater than 50 ppm on structural steel, ductwork, and raw material tanks.

Section 6(e) of the Toxic Substance Control Act (TSCA) prohibited the manufacturing of PCBs after January 1, 1979 and also prohibited the processing distribution and use of PCBs after July 2, 1979. The EPA was authorized to exempt activities if the agency determined that the activity would not result in an unreasonable risk to human health or the environment. EPA has issued a series of regulations governing the marking, storage, and disposal of PCBs. It should be noted that EPA extended the PCB ban for pigments to January 1, 1982 to reduce the cost to the pigment industry. The full list of EPA PCB rulemaking is available here.

EPA has authorized the continued use of PCB-contaminated porous surfaces such as concrete contaminated with PCBs. Pursuant to 40 CFR 761.30(p), PCBs in porous materials may managed in-place for the remaining useful life of the surface provided that the conditions specified in the regulations are met. EPA has indicated that its intent was to allow use of the 761.30(p) authorization where PCB-contaminated concrete would be maintained in service for its original or same use but not when the concrete would be reused for some other function or sold as part of a real estate transaction.

EPA is particularly concerned about potential PCB exposure to building occupants from direct contact with the caulk or materials into which PCBs may have been released (e.g., brick, concrete, wood) as well as dust inhalation. In addition, PCBs may be released to air from intact or undisturbed caulk through off-gassing and inhaled by building occupants. Finally, soil may become contaminated with PCBs when caulk weathers and can be a source of potential exposure to children who might play in the dirt. Exposed PCBs can spread to surface waters and even reservoirs through stormwater runoff.

EPA recommends that owners and managers of buildings where PCBs are found take steps to minimize current potential exposure to building occupants. The agency also suggests testing damaged, peeling, brittle, cracking or visibly deteriorating caulk.

Regulatory Status of PCB-Contaminated Building Materials

The disposal and cleanup requirements for PCB:-contaminated building materials depend on whether the material is classified as a PCB bulk product waste or PCB remediation waste.

PCB bulk product waste contains 50 ppm or more of PCBs derived from manufactured products containing non-liquid PCBs. Because PCB bulk product waste is “unauthorized for use”, it must be removed and disposed in accordance with 40 CFR 761.62. Examples of PCB bulk product waste include but are not limited to bulk waste or debris from building demolition that contains PCBs.

PCB remediation waste encompasses non-liquid materials that are contaminated with PCBs including soil, soil, sediments, dredged materials, mud, sludge, rags and other debris generated as a result of a PCB spill or unauthorized disposal. This term includes materials with PCB spills that occurred prior to April 18, 1978 and that currently have PCB concentrations of 50 ppm or greater, regardless of the concentration of the original spill. It also includes materials that have any volume or concentration of PCBs where the original source at PCB concentrations of 500 ppm or greater beginning on April 18, 1978, or 50 ppm or greater PCB beginning on July 2, 1979. Finally, this term also includes materials that currently have any concentration where the PCBs spill or release originated from a source that was not authorized for use.

Under EPA’s conventional interpretation, this term encompassed materials that have become contaminated by contact with PCB bulk product waste including:

  • Concrete adjacent to caulked or grouted joints;
  • Concrete, wood, or other substrate coated with a PCB-containing paint;
  • Flooring materials (mastic, adhesives, sealants);
  • Window materials in contact with gaskets and glazing;
  • Soil beneath caulked or grouted joints;
  • Flooring impacted by a release of PCB-containing hydraulic, cutting, or transformer oils;
  • Light fixtures impacted by a release of PCBs from PCB-containing ballast; and
  • Debris from the demolition of buildings or other man-made structures from which spilled PCBs have not been removed.

In February 2012, EPA issued a proposed reinterpretation of the regulatory status of building materials that are contaminated by migration of PCBs from PCB bulk product waste as a PCB remediation waste. 77 FR 12293 (2/29/12). EPA indicated that its then current guidance stated that building material contaminated by the migration of PCBs from PCB bulk product waste was considered a PCB remediation waste. EPA proposed to modify this interpretation to provided that PCB contaminated building material would be considered a PCB remediation waste only if the PCB bulk product was still attached to the building material.

When EPA finalized its reinterpretation in its October 22, 2012 guidance document, the agency said it would allow building materials (i.e., substrate) that are “coated or serviced” with PCB bulk product waste (e.g., caulk, paint, mastics, sealants) at the time of designation for disposal to be managed as a PCB bulk product waste even if the PCBs have migrated from the overlying bulk product waste into the substrate provided there is no other source of PCB contamination on or in the substrate. If the substrate is not “coated or serviced” because the PCB Bulk Product has been removed or flaked off from the building material at the time of designation for disposal and the substrate is contaminated with PCBs that have migrated from the removed bulk product waste or from another unauthorized disposal, the substrate would be considered a PCB remediation waste.

EPA also clarified that if during a cleanup or demolition process, the PCB bulk product waste separates from the contaminated building material before all of the waste is physically placed in the final disposal facility, the building material would still be deemed to be a PCB bulk product waste. EPA recommended developing an abatement plan to document the decision to designate building materials as bulk product waste at the time of designation for disposal.

EPA also reaffirmed that contaminated building materials that remain in place, after the PCB bulk product waste has been removed should continue to be considered and managed as PCB remediation waste.

EPA has also noted instances where PCB caulk was found to contained high levels of other hazardous constituents, such as asbestos. Similarly, there are cases where PCB paint has been found to contain high levels of leachable metals. In such situations, care must be taken to determine the appropriate disposal option.

When Should Building Materials Be Sampled for PCBs

EPA never authorized the use of PCBs in caulking and the use of PCBs in building materials in concentrations greater than 50 ppm is not an authorized use. Building materials containing 50 ppm or more of PCBs must be removed and properly disposed. However, the PCB regulations do not impose a specific duty on building owners or operators to test to for the existence or concentrations of PCBS. If PCBs are present in building materials greater than 50 ppm, this could be a violation of TSCA. Likewise, improper disposal and/or storage of PCB contaminated materials above the regulatory thresholds can also result in TSCA liability.

In contrast, building owners or operators do not have a specific reporting duty for PCB concentrations below 50 ppm. Indeed, building materials with PCBs concentrations less than 50 ppm may remain in place. EPA recommends removing PCB-contaminated caulk building materials because the PCBs can migrate to and contaminate adjacent building material (e.g., masonry, wood, concrete) and soil surrounding the building, thereby increasing potential exposure. Indeed, at least one EPA region office has taken the position that because PCBs in caulking is not an authorized use and poses a significant exposure risk, PCB containing caulk MUST be removed upon discovery at levels as low as 2 ppm. Note that, PCB bulk product waste is regulated for disposal regardless if PCB concentration has been measured.

EPA recommends that sampling of building materials prior to commencing demolition or renovation projects. Demolition waste that contains PCB bulk product waste and/or PCB remediation waste generated during demolition must be properly disposed. To evaluate the building materials and determine the appropriate disposal options, EPA recommends:

  • Perform a thorough survey of the building to identify suspect PCB bulk product waste
  • Fully characterize suspect PCB bulk product waste for disposal. If PCB bulk product waste is identified, characterize the adjacent substrate to determine if it is PCB remediation waste and its extent;
  • Consider conducting verification sampling of the extent of the PCB remediation waste prior to demolition

For renovation projects, PCB bulk product waste and PCB remediation waste must be properly disposed. Since PCB bulk product waste in building materials is not authorized for use, EPA has indicated that PCB bulk product waste must be removed even if it located in areas that are not being renovated. However, PCB remediation waste may be left in place when appropriately managed (e.g. encapsulated). To evaluate the building materials and determine the appropriate disposal options during renovation projects, EPA recommends:

  • Characterize suspect PCB bulk product waste that will be removed or disturbed as a result of renovation activities;
  • If PCB bulk product waste is identified, characterize the adjacent substrate to determine if it is PCB remediation waste and its extent;
  • Evaluate removing PCB remediation waste against managing in place.

 Remediation Options-

The TSCA regulations at 40 CPR 761 set forth the disposal and cleanup requirements for PCBs. The remediation options are complex and need to be carefully reviewed. The particular cleanup options may also depend on a variety of factors including exposure evaluation, PCB concentrations, time for completion and whether a brownfield developer will be demolishing existing structures or renovating them for adaptive reuse.

The key steps in the remediation process are:

  • Identify suspect PCB material (includes a physical inspection, review of architecture plans and understand construction/remodeling history)
  • Sample and Test( source and adjacent materials, air and soil as applicable)
  • Determine exposure levels (how people are exposed, frequency and duration)
  • Determine remediation method (Performance-based, Self-implementing and risk-based remediation method) removal vs. encapsulation)
  • Disposal (TSCA regulated vs. non-regulated)

For concrete, the extent and depth of PCB contamination will be a function of the PCB concentration of the spilled material, the porosity of the concrete and the length of time the contaminant remained on the surface.

Concrete surface cleaning is probably the most common method applied to PCB contamination. However, chemical cleaning is most effective on vertical porous surfaces and impervious materials since concrete floors and surfaces frequently become re-contaminated through leachback of PCBs.

Encapsulation is another option when concrete removal is not possible or when a surface has been detergent washed and an extra measure of protection is desired.  However, cracks and other imperfections as well as expansion joints among can complicate encapsulation. Encapsulation may be useful to reduce emissions from secondarily-contaminated sources such as contaminated building materials but studies suggest encapsulation is not effective to reduce emissions from sources that have a high PCB content. Note that long-term monitoring and maintenance along with a recording of a deed restriction must be used when encapsulating or capping PCB remediation wastes.

PCB Disposal Options-

PCB remediation waste must be disposed in accordance with regulated under 40 CFR  761.61 which allows self-implementing, performance-based (preapproved method or facilities), or risk-based option that is approved by EPA. Note the risk-based option may be subject to public comment. The Risk-based cleanup option must be approved by EPA. An example of approvals are available here

Note that EPA distinguishes between PCB spills or releases occurring before April 18, 1978, (so-called pre-1978 spills) and those occurring on or and after that date (post-1978 spills). The PCB Cleanup Spill policy of  Subpart G (40 CFR 761.120 to 761.135) only applies to PCB spills occurring after May 4, 1987 while the self-implementing cleanup procedures of 40 CFR 761.61 applies to virtually all PCB spills while. When it promulgated its 1998 PCB Disposal rule, EPA did not did not revise or expand the scope of Subpart G. However, EPA incorporated many of the assumptions of Subpart G into 40 CFR 761.61 such as the use of two scenarios for exposure — high occupancy and low occupancy. For post-1987 spills, owners or operators may use either remediation approach.

An owner/operator executing the self-implementing option must provide 30 days advance written notice of the cleanup to the EPA regional administrator, state regulatory authority and the County or local environmental protection agency. No advance notice is required for the performance based option but EPA often reviews waste manifests.

Cleanup levels are a function of the type of occupancy (high or low) and the type of PCB remediation waste. High-occupancy areas are residences, schools, day care centers, and a work station on an assembly line. The types of PCB remediation waste with established cleanup levels are Bulk PCB remediation waste (soil, sediment, dredged materials, debris, mud, and sludge), non-porous surfaces (smooth, unpainted solid surface that limits penetration of liquid with PCBs), porous surfaces (a surface that allows PCBs to penetrate such as concrete), and liquid PCB remediation waste.

The EPA Regional Administrator may require cleanup of a site to a level more stringent for sites near human and animal populations such as residential dwellings, hospitals, schools, nursing homes, playgrounds, parks, daycare centers, endangered species habitats, estuaries, wetlands, national wildlife refuges, national parks, commercial fisheries, and sport fisheries. For the performance-based option, the unrestricted use contemplates PCB concentrations below 1 ppm. The self-implementing option requires of 40 CFR 761.61(a)(6) required compliance sampling to verify that the bulk PCB remediation waste or surfaces at a site have been cleaned up to the prescribed levels. If regulated concentrations of PCBs are to be managed in place, a Risk Based Plan must be filed.

If PCBs are present in concentrations of 50 ppm or more, the PCB remediation waste may be disposed at a RCRA Hazardous waste landfill permitted by EPA or an approved PCB disposal facility. Where the PCB concentrations are less than 50 ppm, PCB remediation waste may be disposed at a state licensed municipal solid waste facility, state licensed non-municipal non-hazardous waste facility, a licensed hazardous waste landfill, approved PCB disposal facility or an EPA-approved alternative method based on work plan.

PCB bulk product waste must be disposed of PCB bulk product waste must be disposed in accordance with 40 CFR 761.62. Contaminated concrete that is removed from a building is PCB waste is regulated for disposal regardless if the building itself is demolished or reused. The acceptable disposal options include: performance-based option, solid waste landfills, risk-based option and landfill cover or roadbed material.

Note that if a PCB waste also contains a RCRA hazardous waste, the waste mixture must be managed in compliance with the applicable regulations of both TSCA and RCRA.

Because the EPA PCB regulations do not mandate testing of building materials prior to commencing renovation or demolition, many developers are reluctant or resistant to conduct sampling. However, the emerging best management practices now commonly call for:

  • Development a comprehensive PCB workplan/demolition workplan to prevent the mixing of areas of demolition that are contaminated with uncontaminated areas.
  • Select qualified remediation contractor
  • Use appropriate containment procedures
  • Consider storage and transport limitations
  • Ensure proper management of wastes
  • Comply with regulatory reporting

States are increasingly requiring site owner to develop and implement a plan to segregate contaminated materials from uncontaminated materials. For example, the NJDEP provides that demolition practices should separate out materials that may be contaminated prior to and/or concurrent with demolition for proper manifesting and/or disposal as solid waste. The agency has also developed a “Clean Building Checklist For Recycling”  that helps owners identify historic uses that could have impacted building materials as well as target areas for sampling.

PCB cleanups can be challenging for brownfield developers. The PCB regulations are complex and not well understood by many consultants. To facilitate sales of obsolete properties, some corporate sellers have conducted PCB assessments and abatement prior to marketing the property. Finally, regulators often view each PCB project as a unique case and may use different requirements for containment, post cleaning standards, post verification and introduction of wipe and air sampling for clearance. Early and comprehensive planning and testing can minimize unexpected delays, costs and liabilities especially for improper off-site disposal of PCB-contaminated waste.

For EPA guidance for school administrators on management of PCB-Containing Fluorescent Light Ballasts click here and for handling PCBs in caulk in schools click here.


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