Source:  http://www.lexology.com, October 26, 2012
By: Stephen R. Berlin, Julie R. Domike and Richard L. Sieg of Kilpatrick Townsend & Stockton LLP
The United States Environmental Protection Agency (U.S. EPA) recently settled an enforcement action with The University of Massachusetts System (UMASS) for alleged violations of the Toxic Substance Control Act (TSCA). This action concerns the System’s discovery that window glazing compound in a UMASS building in Amherst, MA, contains PCBs.
The System is a five-campus public university system operated by the Board of Trustees of the University of Massachusetts. In March 2009, a consultant for UMASS, performing an environmental site assessment for an electrical upgrade project, discovered that window glazing compound was contaminated with PCBs at a concentration of 50 parts per million (ppm) or greater. Subsequent sampling indicated window glazing compound was contaminated with PCB concentrations ranging from 82.2 to 14,000 ppm.
In the agreement, the System agreed to pay a civil penalty, comply with the PCB Interim Measures Plan and remediate unanticipated PCB contamination. Continued noncompliance would be subject to penalties stipulated in the agreement. EPA Regions are increasingly focusing on PCBs in building materials no matter when the building material was used at a facility.
In 1976, Congress prohibited the manufacture and use of PCBs and its use was phased out before 1978. PCBs “were widely used in construction material and electrical products before 1978.” [1] Furthermore, “PCBs were used widely in caulking and elastic sealant materials, particularly from 1950 through the 1970s. These materials were primarily used in windows, door frames, stairways, masonry columns, and other masonry building materials.” [2] “PCBs have been detected in caulk in buildings, including schools, with concentrations ranging from as low as 50 ppm to as high as 300,000 ppm. In some cases, PCBs were used in caulk with a concentration as high as 30%.” [3]
In 2003, the Commercial Buildings Energy Consumption Survey found that 46 percent of the commercial buildings in the United States (1,957,000 of 4,258,000 buildings) were constructed between 1947 and 1979 when PCBs were added as an ingredient in caulk. Public school systems, U.S. Navy Ships, universities and more are vulnerable to environmental liabilities resulting from caulk in building materials. As another example, the New York City Schools and EPA entered into a consent order requiring the school system to evaluate its school buildings and evaluate how to encapsulate or treat PCBs over several years. [4]
While there is no requirement to test for PCBs, it is wise to do so if your school, commercial building or other buildings show signs for potential problems and the building was constructed or renovated between 1947 and 1979. Cracked or peeling caulk may be present in buildings, playgrounds and near steps. Also, prior to renovations and repairs that will disturb caulking material, you should test caulking material to determine its PCB levels. “Schools, building owners, and daycare providers in public and commercial buildings need to follow PCB-safe renovation practices to minimize potential exposures resulting from renovations to workers, teachers, and children.” [5] “Repairs that disturb PCB-containing caulk, such as window removal and replacement, should be conducted by trained workers who use safe work practices to minimize dust and contain contaminated waste.” [6]
The U.S. EPA has a website (http://www.epa.gov/pcbsincaulk/) providing information and tools necessary for an owner to become familiar with the issues surrounding PCBs and caulk. Fact sheets provide information on testing, Interim Measures for Reducing Risk and Taking Action to Reduce Exposures, Removal and Clean-Up of PCBs in Caulk and Disposal Options. This website provides a “Schools Information Kit” that includes a “PCBs in Caulk School Checklist” for evaluating PCB vulnerabilities. Other important resources are on this website, including “Contractors Handling PCBs in Caulk During Renovation.” This website is a great place to start for owners who wants to evaluate their vulnerabilities related to PCBs in building materials.
The first question an owner must ask to assess PCB caulk issues is: “Was the building constructed or remodeled between 1947 and 1979.” If the answer to the question is “yes,” then PCB potential exists and care should be taken to minimize exposure. U.S. EPA recommends certain steps to be taken until the PCB caulk can be removed: [7]
Improve ventilation, including opening windows and using or installing fans where possible.
Clean frequently to reduce dust and residue inside buildings.
Use a wet or damp cloth or mop to clean surfaces.
Use vacuums with high-efficiency particulate air (HEPA) filters.
Do not sweep with dry brooms; minimize the use of dusters.
Wash children’s hands with soap and water often, particularly before eating.
Wash children’s toys often.
Wash hands with soap and water after cleaning, and before eating or drinking.
Once the existence of PCBs is confirmed, an owner must manage them properly.
As shown in the UMASS case, U.S. EPA takes the TSCA PCB requirements seriously. At the end of the day, owners are responsible for the proper management of PCBs. If you discover that your building has potential PCB issues, you should seek legal advice before performing any work. If you discover you have PCB issues, you should seek legal advice immediately.