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March 6‚ 2012
EPA Seeks Comment on Minor Reinterpretation of Rules on
PCBs in Building Materials
By Ralph A. Child and Jeffrey R. Porter
Last week the Environmental Protection Agency (EPA) requested
public comment on a proposed reinterpretation of its PCB
rules, billed as a step to accelerate removal of building materials
containing PCBs. Comments are due by March 30.
The proposed reinterpretation would barely dent the costs
confronting building owners concerned about the possible or confirmed
presence of PCB-containing building materials like paint and caulk.
Building owners should consider taking this opportunity to tell EPA that
minor tweaks are not enough: instead, EPA should assess the risks actually
posed by these building materials and develop more substantial ways of
minimizing the costs of managing or disposing of such materials.
Unauthorized
PCB-containing Products and PCB Waste Categories
Under the Toxic Substances Control Act (TSCA), distribution
and use of PCBs are barred absent an EPA authorization or regulatory
exclusion. Where they are known to exist, unauthorized, non-excluded
PCB-containing products must be removed to remain in compliance with TSCA.
Under 40 CFR Part 761.62, the removal and disposal of non-liquid PCB-containing
products with more than 50 ppm PCBs are regulated as PCB bulk product
wastes.
Also, when PCBs from unauthorized PCB-containing products
contaminate other materials, those also must be removed and disposed as PCB
remediation waste pursuant to Part 761.61.
PCBs in
Building Materials
PCBs are present in many commercial and institutional
buildings built or renovated from the 1940s into the 1970s when PCBs were
commonly incorporated as a plasticizing agent in caulks and paints. There
is no regulatory duty to test for PCBs in building materials. But once they
are discovered at levels above 50 ppm, a building owner is on notice of an
illegal condition and removal becomes necessary.
Removal or
Encapsulation of PCB-containing Building Materials
Removal of PCB-containing building materials is involved and
expensive. Workers must conduct the work under stringent safety standards
and use burdensome safety equipment. Disposal of the waste is expensive,
partly because some states, such as Massachusetts, generally do not allow
it in regular construction debris or solid waste disposal facilities even
when it would be allowed by EPA.
EPA can approve keeping PCBs in building materials on a
case-specific basis. Obtaining such authorizations generally is
time-consuming and expensive, and typically comes with conditions involving
encapsulation, periodic monitoring and reporting, and notices on property
documents and to building occupants.
EPA’s Evolving
Approaches to the Issue
EPA has long recognized that removal of PCB-containing
building materials would be hugely expensive. In 1994, invoking its
authority under TSCA to allow PCBs that do not pose unreasonable risk, EPA
proposed regulations that would have allowed such materials to remain in
place under certain conditions. EPA did not finalize that proposal,
however, and for many years did not develop any program of compliance
assistance or enforcement focused on PCBs in building materials.
In 2009 EPA finally issued guidance
documents on PCBs in older buildings, sparked chiefly by parental
and Congressional voices concerned about PCBs in older school buildings.
The associated publicity has put pressure on building owners to evaluate
and address PCBs in their buildings. Many institutions have developed
long-term plans to do so. The environmental consulting, laboratory
analysis, risk assessment, risk communication, cleanup, and waste disposal
communities have not been sorry to see the resulting business.
There is no consensus among building owners and health
authorities, however, that the expense and difficulties of removing PCBs in
building materials are justified by reductions in health risk, enforcement
risk, or business risk. For example, an information
booklet from the Massachusetts Department of Public Health indicates
that intact caulking does not cause appreciable exposures to PCBs and that
health effects would not be expected.
Proposed
Reinterpretation
EPA’s proposed reinterpretation of its regulations would
allow PCB-contaminated building materials such as masonry to be handled as
PCB bulk product waste, instead of as PCB remediation waste, if they are
removed concurrently with the PCB-containing products that were the source
of the contamination and are being removed as PCB bulk product waste.
The notice is clear that contaminated building materials not
removed along with the PCB bulk product wastes would still constitute PCB
remediation waste. In effect, residual building materials with PCB levels
above 1 ppm would still require remediation or EPA approval. Also, the
reinterpretation would not apply to contaminated soils.
The notice explains the proposal is intended to “accelerate
cleanups by providing a more straightforward path for disposal.”
Observations
It is true that a few projects will be simpler if all of the
PCB-containing building material can be removed as one category of waste.
But it is not clear that even those jobs will be cheaper or faster.
First, many projects also involve contaminated soil, so there
will be remediation wastes anyway.
Second, much of the cost and time stems from the need for EPA
approval, from EPA’s conditions, and from the worker safety requirements,
not from disposal requirements. It may be that EPA intends to rely on the
reinterpretation to streamline its approval requirements, but EPA’s notice
does not say so.
Third, PCB remediation wastes sometimes can be disposed of
more easily than the more contaminated PCB bulk product wastes, and usually
involve a high proportion of the overall waste stream. Including large
quantities of materials that could be remediation wastes in with the bulk
product wastes may lead to very expensive simplicity.
As a result, the reinterpretation does not appear to offer a
significant reduction in the current costs of remediating PCBs in building
materials. Certainly it will not allow or induce building owners to treat
the problem just as a matter of ongoing building maintenance.
EPA should consider that TSCA’s regulation of PCBs has led to
marked reductions in PCB body burdens for upcoming generations not exposed
the way older generations were. It should also consider the absence of
evidence linking PCBs in building materials to human health consequences,
and develop a program that avoids stoking unwarranted fears and allows
building owners to manage the issue without undue costs.
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