New Changes in EPA Policy Governing Disposal of PCB-Contaminated Building Materials

The U.S. Environmental Protection Agency (EPA) recently finalized its reinterpretation of the Agency’s policy regarding Polychlorinated Biphenyl (PCB) contaminated building materials.  The “PCB Bulk Product Waste Reinterpretation” addresses the federal Toxic Substances Control Act (TSCA) requirements governing the disposal of building debris that has been in contact with non-liquid PCBs such as PCB-containing caulk and paint. EPA’s reinterpretation will impact contractors who handle caulk during renovations, for example.  According to EPA, the presence of PCB-containing caulk, sealants, paint, etc. in (or on) a building is an “unauthorized use” of PCBs.  EPA warns of the presence of PCB-containing caulk, sealants, paint and other materials in public and commercial buildings constructed between World War II and mid-1970. As explained below, the “PCB Bulk Product Waste Reinterpretation” (Reinterpretation Guide) specifically addresses the definitions of “Bulk Product Waste” and “Remediation Waste.”  This distinction is important as it determines the appropriate cleanup requirements and disposal options.  PCB Bulk Product Waste can be sent to solid waste landfills, while PCB Remediation Waste is subject to stricter disposal requirements, such as disposal in TSCA chemical waste landfills.  PCB Bulk Product Waste Specifically, if PCBs have leached from caulk, sealants or paint containing ≥ 50 ppm (parts per million) PCBs into a substrate such as brick, mortar, concrete, etc., and the PCB-containing material is still attached to the substrate at the time the structure has been “designated for disposal,” then the substrate can be disposed of as PCB Bulk Product Waste.  PCB Bulk Product Waste qualifies for more flexible disposal options, for example, much PCB Bulk Product Waste can be disposed of in permitted industrial or solid waste landfills even if it contains > 50 ppm PCBs (see 40 CFR Part 761.62).  Prior to the reinterpretation, when PCBs migrated from building products, such as caulk, the caulk would be considered PCB Bulk Product Waste, while the underlying contaminated building material would be considered PCB Remediation Waste. Under the Reinterpretation Guide, EPA allows the building substrate “designated for disposal” to be characterized as PCB Bulk Product Waste, even if, after the designation, it becomes separated from the original building product containing the PCBs.  Indeed, this is a slight expansion from the draft proposal. This reinterpretation only applies if the substrate has been contaminated by non-liquid PCBs. If the source of the contamination includes spills or releases of ≥ 50 ppm liquid PCBs (e.g., from hydraulic or transformer fluids), then EPA would conclude that the substrate is “PCB Remediation Waste,” regardless of the PCB concentration.  Note that the date of any such disposal may be relevant to this analysis (see 40 CFR Part 761.50(b)(3)). PCB Remediation Waste If, at the time of the “designation for disposal,” the caulk, sealants, or paint containing ≥ 50 ppm PCBs has been separated from the substrate into which PCBs have leached, then the PCB-contaminated substrate must be managed as PCB Remediation Waste, subject to the more restrictive disposal requirements of 40 CFR Part 761.61, regardless of the concentration of the PCBs in the substrate (i.e., even if the PCB concentration in the substrate is < 50 ppm).  For example, if one removes ≥ 50 ppm PCB-containing caulk or sealant from a building, and subsequently discovers that brick or mortar was contaminated with PCBs from that caulk, the brick/mortar would have to be managed as PCB Remediation Waste. Implementation Issues In responding to comments on the proposal, the final Reinterpretation Guide recognizes that during a cleanup or demolition process, the PCB-containing caulk/paint/etc. might be separated from the substrate (i.e., in the time between “designation for disposal” and ultimate physical disposal).  As stated above, in these situations, as long as the PCB-containing material was still attached to the substrate at the time of “designation for disposal,” the debris can be managed as PCB Bulk Product Waste even if the debris and caulk are subsequently separated. The Reinterpretation Guide should be taken into account in planning building maintenance (e.g. projects involving replacement of caulking or sealants) or demolition projects.  To this end, EPA recommends the creation and implementation of an abatement plan.  The abatement plan would document the time when a company designates a particular structure for disposal and the condition of the structure (i.e., prior to demolition and before the PCB-containing material is separated from the substrate), rather than sample the debris after the structure has been demolished (assuming that demolition would separate some or all of the substrate from any PCB-containing caulk or paint). Penalties for Noncompliance If you do not follow the PCB waste management and permitting standards listed in 40 CFR Part 761, you may be fined in civil penalties of up to $37,500 per day per violation.  You also may be fined if you release PCB waste into the environment.  You can lose any existing permits for your construction site and/or need to stop work until you meet EPA requirements. You also may face penalties or actions for past or present handling, storage, treatment, transportation, or disposal of PCB waste that may be a hazard to human health or the environment. For More Information The final Reinterpretation Guidance is online at http://www.epa.gov/epawaste/hazard/tsd/pcbs/pubs/caulk/pdf/pcb-bulk-waste-memo102412.pdf. A list of EPA regional PCB Coordinators is available online at http://www.epa.gov/pcb/coordin.html and a list of EPA Headquarters PCB contacts is at http://www.epa.gov/pcb/contactus.html.