PCBs in Building Caulking – Beware the Enforcer

Source: http://www.natlawreview.com, September 28, 2012
By: H. Hamilton Hackney III, Greenberg Traurig, LLP

A recent enforcement case in USEPA Region I highlights the continuing regulatory risks posed to commercial property owners by building materials containing polychlorinated bi-phenyls (PCBs). From the 1950s into the 1970s, PCBs were used as plasticizers and flame retardants in caulking around doors and windows and in masonry joints. PCB concentrations in these materials can exceed 300,000 parts per million (ppm) and at higher concentrations can leach into surrounding structural materials like wood and concrete. This issue is particularly prevalent in, but not limited to, the Northeast, and has led in some cases to extensive and expensive abatement projects at schools and student residential buildings. In November 2009, we prepared a Client Advisory – Emerging Issues: Managing Risks Associated with PCBs in Building Caulking – that discussed this emerging issue and offered risk management strategies to commercial property owners.

In 2009, USEPA issued a guidance document setting forth best management practices for schools to eliminate or minimize exposure to PCBs from deteriorating caulking. Relying on its PCB regulations promulgated under the Toxic Substance Control Act (TSCA), USEPA determined that caulking containing 50 or more ppm is not “authorized for use” under TSCA and must be removed from the building and disposed of at a properly licensed disposal facility. This interpretation has resulted in some complex regulatory issues for schools and commercial building owners about when and how to investigate building materials for the presence of PCBs, as discussed in more detail in our Client Advisory.

USEPA Region I recently settled an administrative enforcement case against the University of Massachusetts (UMass) regarding the management and abatement of PCB-contaminated caulking in several buildings at UMass’ Amherst campus. (In the Matter of The University of Massachusetts System, Docket No. TSCA 01-2012-36). In addition to levying a $75,000 penalty, the Consent Agreement and Final Order commits UMass to removing and replacing all windows and PCB-contaminated window glazing compound in the affected buildings as those buildings are renovated over the course of the next 15 years. In the interim, UMass is required to follow a very specific series of best management practices to minimize the risks posed to occupants. These include cleaning and encapsulation, inspection and monitoring , personnel training, recordkeeping and reporting, and recording a deed notice.

The UMass case offers a compelling lesson to commercial property owners of the particular risks posed by enforcement cases involving PCB caulking. Having USEPA dictating and overseeing the operation and renovation of a commercial building could render the operation of that building financially infeasible and would likely chill any purchase of the building while USEPA retained direct regulatory oversight. While this case involved a state university, USEPA could seek to follow a similar enforcement strategy in the event it determined that PCB caulking in a commercial building posed a risk to occupants. The proactive screening and risk management strategies outlined in our Client Advisory offer can protect commercial property owners from the enforcement perils presented by the UMass case.

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