Killer Buildings: New Concerns About PCBs in Caulk and EPA's New Rules for Renovation of Buildings Containing Lead Paint

Asbestos in insulation and building materials has long been recognized as a hazard.  Recent discoveries on PCBs and new rules on lead paint renovation are raising additional concerns and requiring new work practices for property owners, contractors, and building managers.   

PCBs in Caulk and Building Materials.  Although most people think of PCBs as a problem in transformers, some demolition has encountered PCBs in paint and electrical wire.  Now, EPA has announced new guidance for testing, removal, and renovation to address PCBs in caulk.  EPA has called this a "serious issue" that applies to all buildings constructed or renovated between 1950 and 1978, when caulk containing PCBs was used in buildings in the Northeast and upper Midwest.  EPA has even gone so far as to enter into a Consent Agreement with the City of New York, calling for a pilot program of testing and renovation of schools using Best Management Practices, followed by a city-wide remedy for remaining schools. 

Caulk containing PCBs was used in many buildings, including schools, and EPA's recent guidance offers the following recommendations: 

  • Steps to minimize exposure, including interior cleaning and hygiene practices.
  • Testing to determine if PCBs are present in air, leading to identification of sources of PCB contamination, including caulk.
  • Test methods for determining the presence of PCB in air, and in caulk.
  • Information for schools and building owners.
  • Information for contractors working on older buildings, including Best Management Practices for removal and cleanup of PCBs.
  • Disposal options for PCBs in caulk and PCB-contaminated soil and building materials.

Legally, the issue is complicated because any "non-enclosed" use of PCBs is prohibited by law.  This ban was the basis for EPA's demand for penalties from the City of New York in the Consent Agreement, and even stipulated penalties in the event that the City violates the Consent Agreement.  To further complicate matters, EPA acknowledges that regulations promulgated under the Toxic Substances Control Act do not require sampling caulk for PCBs, unless that sampling is performed to characterize waste materials for disposal.  Nevertheless, EPA encourages testing to determine if PCBs are present. 

Disposal of caulk with PCBs greater than 50 parts per million is strictly regulated by federal regulations, and this material is also considered hazardous waste in some states, like Maine.  PCB-containing caulk is regulated as a "PCB Bulk Product" and disposal is not permitted except in an authorized PCB landfill, PCB incinerator, or other TSCA-approved disposal facility.  Even masonry, wood, metals, and other building materials that are coated with PCB-containing caulk are regulated just like the caulk, if the caulk coating the materials contains PCBs at more than 50 parts per million.  And if PCBs have contaminated the surrounding building materials or adjacent soil, these materials are considered PCB "Remediation Waste," which is also governed by federal regulations, and perhaps state hazardous waste regulations as well.  Both contractors and employers who allow their employees to do renovation and demolition should be aware of the protective measures that should be taken.  Unlawful disposal of PCB waste is a civil and criminal offense. 

Lead Paint.  In late spring, EPA took three related actions to affirm and strengthen lead remediation regulations.  First, EPA and Congress declined to extend the April 22nd deadline for required certifications for contractors performing renovation, repair and painting projects that disturb lead-based paint in homes, childcare facilities and schools built before 1978, including the specific work practices to prevent lead contamination.  Second, EPA finalized several revisions to the lead programs, including eliminating the "opt-out" provision that exempted renovation firms from training and work practice requirements where the firm obtained a certification that a home or building was not a child-occupied facility.  Finally, EPA proposed to adopt additional work practices for lead-based paint renovation and -- perhaps most significantly –  announced the commencement of new rulemaking to extend lead-safe work practices and other requirements for renovations to the exteriors of public and commercial buildings.

Lead-based paint is assumed to be present in any pre-1978 housing and facilities serving children under six, unless a certified inspector or renovator determines that there is a low level of lead in the renovation project.  The contractor certification requirements have received much publicity, because contractors have complained that the proper training and certification was simply not available to meet the deadline.  EPA has stood by the April 22, 2010 deadline, but has announced it does not intend to take enforcement action against firms who applied for certification before April 22 and are just waiting for their paperwork. 

Although these rules are primarily directed at contractors, disposal requirements (and potential superfund liability for improper disposal) affect building owners and operators as well.  Other rules already in effect require landlords and sellers to provide available information on lead in residences and to allow testing.  Some states have their own lead abatement regulations, and disposal of lead paint and debris may be a hazardous waste subject to strict disposal requirements.

If you would like information on regulations applicable to PCBs in caulk or lead-based paint, or have questions about testing or disposal, please contact Ken Gray at (207-791-1212 or kgray@pierceatwood.com), Mark Beliveau at (603-433-2202 or mbeliveau@pierceatwood.com), or Helen Edmonds at (207-622-6311 or hedmonds@pierctawood.com).