Betsy Mason - Bernkopf Goodman LLP

Owners and managers of buildings built or renovated between 1950 and 1979, take note: the U.S. Environmental Protection Agency (EPA) recently issued new guidelines for managing the risks posed by building materials containing polychlorinated biphenyls (PCBs). This is important because PCBs have been demonstrated to cause cancer as well as non-cancer health effects – including immune system suppression and reproductive, endocrine and nervous system damage – in animals.

The use of PCB-containing building materials was widespread between about 1950 and 1979, when Congress banned the manufacture of PCBs. A primary source of PCBs in buildings built or renovated during this period is caulking used around windows, door frames, building joints, masonry columns and other masonry building materials. PCBs were used in caulk before 1979 because of their water resistance and plasticity. Sampling has detected PCBs in caulk at concentrations as high as 440,000 parts per million (ppm) in buildings built or renovated during those years (EPA prohibits the use of PCBs at levels above 50 ppm). Besides caulk, other building materials may have been manufactured with PCBs, including fluorescent light ballasts (FLBs), window glazing, ceiling tiles and spray-on fireproofing.

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). In addition, PCBs may migrate from caulk into surrounding building materials – especially porous materials such as wood and concrete – as well as into soil as a result of precipitation and exterior caulk deterioration.

As of July 2015, EPA recommends that regardless of whether PCBs are known to be present, all buildings built or renovated between 1950 and 1979 implement best management practices to minimize exposure to PCBs, including the following:

Removal of PCB-containing FLBs. Building owners and managers should have properly trained facilities maintenance staff or, where necessary, experienced contractors, remove and dispose of PCB-containing FLBs and clean up building surfaces. Leaking PCB FLBs must be removed and disposed of in accordance with the federal PCB regulations (40 C.F.R. Part 761).

Management of potential indoor air/airborne exposures to PCBs. Owners and managers should ensure that HVAC systems are operating properly and regularly inspected, maintained and cleaned in accordance with manufacturer instructions or ANSI/ASHRAE/ACCA standards.

Removal of PCB-containing building materials during renovations. Anyone planning renovations to a building built or renovated between about 1950 and 1979 should prepare an abatement plan focused on safely removing PCB-containing caulk and other building materials, cleaning up adjacent building surfaces and preventing further contamination.

EPA recommends pre-removal testing of caulk and other building materials to (1) determine whether PCBs are present (and if so, at what concentrations), (2) identify appropriate safeguards for construction workers and building occupants, and (3) determine applicable disposal requirements. At a minimum:

Caulk should be tested and, if found to contain PCBs > 50 ppm, removed and disposed of in an authorized landfill, incinerator or other disposal facility.

Other building materials – such as brick or concrete – that are contaminated by > 50 ppm PCBs from caulk must also be removed and disposed of in accordance with 40 C.F.R. Part 761.

The removal of caulk and building materials known or suspected to contain PCBs must be managed to minimize worker and occupant exposure and prevent the release of PCBs into the environment.

Notably, EPA allows building owners and managers not to test potential PCB-containing caulk and other building materials that are proposed to be removed during planned renovations, and instead to assume that those materials contain regulated levels of PCBs and must be disposed of in accordance with 40 C.F.R. Part 761. Whether this strategy makes sense depends on the situation. For example, in Massachusetts, where a building owner plans to demolish a concrete building and has been authorized under state law to use the resulting aggregate as fill, whether on-site or in an off-site landfill, pre-demolition testing is not only appropriate but required to ensure the proper “beneficial use” of the former building materials.

Encapsulation to reduce PCB exposure. In some circumstances, encapsulation of building materials that will remain in place after adjacent PCB-containing caulk or paint has been removed may be warranted. According to EPA, encapsulation can reduce air emissions from such potential sources. EPA recommends that building owners and managers considering encapsulation consult with their EPA Regional PCB Coordinators.

In sum, owners and managers of aging buildings should implement appropriate best management practices and properly manage potential PCB-containing building materials to keep their renovation projects on budget, on schedule and off of the desks of EPA and MassDEP 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, Esq., is a partner with Bernkopf Goodman LLP in Boston.