The United States Environmental Protection Agency (U.S. EPA) recently settled an enforcement action with The University of Massachusetts System (UMASS or the System) for alleged violations of the Toxic Substance Control Act (TSCA). This action concerned the System’s discovery that window glazing compound in a UMASS building in Amherst, MA, contains PCBs.

The System is a five-campus public university system operated by the Board of Trustees of the University of Massachusetts. In March 2009, a consultant for UMASS, performing an environmental site assessment for an electrical upgrade project, discovered that window glazing compound was contaminated with PCBs at a concentration of 50 parts per million (ppm) or greater. Subsequent sampling indicated window glazing compound was contaminated with PCB concentrations ranging from 82.2 to 14,000 ppm. Under the agreement, the System agreed to pay a civil penalty, comply with the PCB Interim Measures Plan and remediate unanticipated PCB contamination. Continued noncompliance would be subject to penalties stipulated in the agreement. As this settlement indicates, EPA Regions are increasingly focusing on PCBs in building materials, no matter when the building material was used at a facility. In 1976, Congress prohibited the manufacture and use of PCBs and its use was phased out before 1978. PCBs “were widely used in construction material and electrical products before 1978.” [1] Furthermore, “PCBs were used widely in caulking and elastic sealant materials, particularly from 1950 through the 1970s. These materials were primarily used in windows, door frames, stairways, masonry columns, and other masonry building materials.” [2] “PCBs have been detected in caulk in buildings, including schools, with concentrations ranging from as low as 50 ppm to as high as 300,000 ppm. In some cases, PCBs were used in caulk with a concentration as high as 30 percent.” [3]

In 2003, the Commercial Buildings Energy Consumption Survey found that 46 percent of the commercial buildings in the United States (1,957,000 of 4,258,000 buildings) were constructed between 1947 and 1979 when PCBs were added as an ingredient in caulk. Public school systems, U.S. Navy ships, universities, and commercial properties are vulnerable to environmental liabilities resulting from caulk in building materials. As another example, the New York City Schools and EPA entered into a consent order requiring the school system to evaluate its school buildings and evaluate how to encapsulate or treat PCBs over several years. [4]

While there is no requirement to test for PCBs, caulk that is disturbed or otherwise damaged should be tested. Cracked or peeling caulk may be present in buildings, playgrounds and near steps. Also, waste generators are required to know what wastes they are generating. Therefore, if you own a commercial building or other buildings that were constructed or renovated between 1947 and 1979 and you are planning a renovation that may cause the generation of caulk and other potential PCB-laden wastes, you should test the caulking material before removing it. U.S. EPA warns that damaged caulk releases PCBs at dangerous levels. “Schools, building owners, and daycare providers in public and commercial buildings need to follow PCB-safe renovation practices to minimize potential exposures resulting from renovations to workers, teachers, and children.” [5] “Repairs that disturb PCB-containing caulk, such as window removal and replacement, should be conducted by trained workers who use safe work practices to minimize dust and contain contaminated waste.” [6] This applies to those buildings constructed or renovated between 1947 and 1979.

The U.S. EPA website ( http://www.epa.gov/pcbsincaulk/ ) provides information and tools necessary for an owner to become familiar with the issues surrounding PCBs and caulk. Fact sheets provide information on testing, Interim Measures for Reducing Risk and Taking Action to Reduce Exposures, Removal and Clean-Up of PCBs in Caulk and Disposal Options. This website provides a “Schools Information Kit” that includes a “PCBs in Caulk School Checklist” for evaluating PCB vulnerabilities. Other important resources are on this website, including “Contractors Handling PCBs in Caulk During Renovation.” This website is a great place to start for owners who want to evaluate their vulnerabilities related to PCBs in building materials.

The first question an owner must ask to assess PCB caulk issues is: “Was the building constructed or remodeled between 1947 and 1979.” If the answer to the question is “yes,” then PCB potential exists and care should be taken to minimize exposure. Once the existence of PCBs is confirmed, an owner must manage them properly.

As shown in the UMASS case, PCBs pose a risk that must be taken seriously. At the end of the day, owners are responsible for the proper management of wastes, including PCBs. If you discover that your building has potential PCB issues, you should seek legal advice before performing any work. If PCB issues are confirmed, you should seek legal advice immediately. If you have any questions, please contact the Environmental Team at Kilpatrick Townsend & Stockton LLP.

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[1] U.S. EPA, PCBs in Caulk – QA, available at http://www.epa.gov/pcbsincaulk/ (last visited October 29, 2012).

[2] Id.

[3] Id.

[4] There are other examples as well. PCB problems were discovered in three Technical Schools in the Connecticut Technical High School System and other locations as well.

[5] Supra note 1.

[6] Id.

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