O'Reilly, Talbot & Okun Associates Blog

There have been any number of recent news stories about PCBs being discovered in buildings, particularly public schools.  Setting aside the issue of whether PCBs in schools pose an actual hazard, school officials are under intense pressure to eliminate PCBs from schools once they are discovered.  But the cost of eliminating PCBs from schools is typically very high, and even in the case of carefully planned actions, cleanup budgets can increase dramatically once projects begin.

One of the expensive parts of PCB removal operations is disposing of contaminated building materials like brick and concrete.  These building materials are massive and can cost many hundreds to thousands of dollars per ton to dispose of.  There is currently no disposal facility in New England authorized to receive this waste.  That means on top of high disposal costs, there are also high shipping costs to transport the PCB contaminated materials to remote disposal facilities.  With extended transportation come ancillary costs like greenhouse gas emissions and the risk of transportation accidents.

The USEPA recently proposed to reclassify certain PCB contaminated building materials to make removing them from buildings less expensive.  The rule change would allow a broader range of disposal facilities to accept PCB contaminated building materials like those found in schools.  If this change is adopted, then state governments would be able to permit landfills to accept “PCB bulk product waste”, the legal name for these PCB containing building materials.  Reducing federal involvement in this process would likely reduce costs and shorten the time it takes to review and approve individual cleanup projects.  Unfortunately, New England also lacks a disposal facility that can accept PCB bulk product waste.

For the past 30 year, Massachusetts has sought to eliminate the land disposal of PCBs and other hazardous materials, but the time to rethink that position may now be here.  The disposal of hazardous materials has been discouraged largely because of concerns about groundwater contamination.  This is clearly a legitimate concern, but it is important to consider that the overall quality of landfill management has improved a great deal in the past 30 years and the risk of groundwater contamination from these operations has been substantially reduced.  What’s more, the physical and chemical nature of PCB bulk product waste makes the possibility of groundwater contamination much less likely than for other types of wastes.

PCBs are considered to be virtually insoluble in water, so it is rare that they are a cause of groundwater contamination.  Also, PCBs tend to bind tightly to building materials like brick and concrete so the potential for them to leach out of these materials is quite low.  Another consideration is that most landfills already contain what we now consider to be PCB bulk product waste because in the past this material was simply considered normal construction debris that could be sent to almost any landfill.

The potentials savings to the Commonwealth’s school systems could be enormous if there were an in-state PCB bulk product disposal facility.  In these days of downsized school budgets, reduced teaching staff and limited educational materials, any savings from reducing the costs of PCB removals would be a real blessing for local communities.  The Commonwealth should actively support either the establishment of a PCB bulk product waste landfill or the modification of existing landfill permits to allow the disposal of PCB bulk product waste.

If you are interested in taking a look at my comments (made as an individual) to EPA’s request for comments on their proposed reinterpretation of the definition of PCB Bulk Product waste, please click on this link.  For more information on the proposal itself, check my earlier posts on the topic.

As described in my earlier post (see below), there is much to like about USEPA’s proposal to redefine the terms PCB remediation waste and PCB bulk product waste in the context of removing PCB contaminated materials from buildings. This proposal could reduce the cost and complexity of removing PCBs from school buildings and these days school systems can use all the budgetary help they can get.   However, there is a real zinger tucked into the proposal that has the same bad smell shared by all too many TSCA requirements.  Trying to briefly summarize: if a school system has already removed the original source of PCBs in the building (such as caulk, paint or floor finish) without at the same time also removing the last trace of PCBs, then the benefits of the regulatory change would not be available for that building.

So imagine this scenario: a school system has only a small amount of money available and can only afford to remove the PCB caulk from a school (say this costs $100,000 to $200,000) and they need to leave behind the contaminated brick and concrete that may have picked up some of the PCBs from the caulk.  By taking this action the the school administration has likely removed 80-99%+ of the PCBs from the building.  But, because the administration made this good faith effort to remove the most concentrated PCBs from the building without removing the very last trace at the same time, they will be punished by having to treat the remaining PCBs without the advantage of the proposed regulatory change.  No good deed goes unpunished, as one of my attorney friends likes to say.

Why do the PCB regulations have to be so bureaucratic and punitive?  If your answer is “this is what’s necessary to protect health and the environment” I am afraid you are mistaken.  The environment does not know or care about the order in which PCB contaminated materials are taken out of a school building.  It makes no difference at all to health or environment, not a lick.  And if your city or town has a limited school budget (whose doesn’t?), then taking out the most concentrated PCBs first makes a lot of sense from the standpoint of getting the biggest bang for your cleanup dollars.

Then why does EPA want to make cleanups more difficult and expensive for school systems that either have or would like to take out the most offensive materials first?  You’ve got me on that question, but I suspect it has to do with wanting to manipulate school systems into spending more money than they can really afford.  In other words, they are trying to force school systems to complete the entire PCB cleanup project all at once rather than spacing it out over time.  This means that EPA believes it is in a better position to set school system budget priorities than is each school’s administration.

As a former small town school board member I find EPA’s approach  offensive.  Even the smallest school system needs to consider a mountain of issues in developing budgets, and being strong-armed by the PCB regulations is not conducive to achieving good educational results.

Last week USEPA’s Office of Solid Waste and Emergency Response issued a Federal Register notice requesting public comment on what looks to be a dry technical issue within the PCB regulations; modifying the legal definitions of PCB Bulk Product Waste and PCB Remediation Waste.  Unless you are a member of the small group that spends time delving into these matters, you’re probably thinking: please, don’t waste my time!  Trust me, if you already have been or ever will be involved in removing PCBs from a building, you need to learn more about this.  However, to understand the context and potential significance of the proposed change, a short history lesson is in order.

The PCB regulations date to the mid-1970s when public fears about hazardous chemicals were at a peak.  The political climate that drove passage of the Toxic Substances Control Act (TSCA) and mandated EPA to develop the PCB regulations, was shaped by the 1968 Yusho Rice Oil poisoning in Japan and a pervasive lack of trust in industry.  Companies that were previously seen as great social benefactors were in the 1970s believed to have exposed an unknowing public to a huge variety of hazardous chemicals.    Fast forward 35 years to the present and we see a business community that is much more sensitive to environmental issues.   But the PCB regulations were cast in the time of fear and distrust, and thus to this day contain elements that may best be understood as deliberately punitive.  That may be why the requirements for  spill cleanups are so strict and onerous; anyone “careless” enough to spill PCBs was required to do  penance.

Now back to the request for public comment on the definition changes.  Before reading further, I suggest clicking on this link, which will take you to an EPA web page that illustrates the proposed definition change.  Look at the graphic in the middle of the page that shows two images of a building caulk joint with brick on one side of the joint and concrete on the other.  The left hand image illustrates the current regulatory definitions of the waste materials and the right hand side shows the proposed change.  The pictures look the same, but the regulatory difference is significant for two important reasons.  First, PCB bulk product waste only needs to be remediated to to a concentration of 50 mg/kg (or 50 ppm); remediation waste usually needs to be remediated to a level of 1 mg/kg(1 ppm).  This difference in cleanup standard can result in a big difference in the volume of material to be removed and disposed of.

Second, PCB bulk product waste may be legally disposed of in any landfill permitted by a state to accept PCB bulk product waste.  PCB remediation waste must be disposed of at a landfill permitted by the EPA in accordance with the federal TSCA requirements.  Guess which type of permitting is more difficult to obtain and thus results in higher tipping fees (disposal costs)?  The cost difference between the disposal of PCB bulk product waste and PCB remediation waste can be a factor of between 2 and 5. Disposal costs can be one of the largest items in a remedial budget.

One of the peculiarities with the PCB regulations is that PCB bulk product waste typically contains much higher concentrations of PCBs than does remediation waste.  PCB concentrations in bulk product waste can often reach 10% (100,000 ppm) or even higher.  Concentrations in remediation waste commonly average 1,000 mg/kg (1,000 ppm), although they can be higher.

Overall, the proposed change has the potential to significantly reduce remediation costs for removing PCBs from buildings, possibly by 50-75%.  This savings would not come at the expense of added environmental risk.  From a bigger picture perspective, the proposed change would be a welcomed first step in the direction of bringing more rationality to the PCB regulations.

Sadly, over time the PCB regulations evolved to put larger burdens on building owners (like school systems) than they do on the parties that continue to use liquid PCBs, the most environmentally risky type.  It had always been EPA’s primary regulatory objective to phase out the use of liquid PCBs, but 30+ years later, it is still liquid PCBs that pose the greatest risk of entering the environment in an uncontrolled manner.  Somewhere along the line EPA lost sight of the goal.

Today’s Federal Register (the daily journal of the federal government) contained a notice from the USEPA requesting public comment on a topic of critical interest to anyone involved in the assessment and remediation of PCBs in buildings.  The topic EPA is seeking comment on is the distinction between PCB Bulk Product Waste and PCB Remediation Waste in cases where the remediation waste is the result of direct contact with a bulk product waste.

While the interpretation can vary from EPA Region to Region, in general EPA defines a PCB Bulk Product Waste as a solid waste that was originally fabricated with PCBs as part of the product.  This would include PCB containing building caulk, paints, floor finishes and other building materials.  When previously uncontaminated building materials become contaminated as a result of their contact with these bulk products, they are considered to be remediation wastes.  The requirements for the management and disposal of these remediation wastes can be stricter and much more expensive than the requirements for bulk product wastes, even though the bulk product wastes typically contain much higher amounts of PCBs.

This discrepancy in the management requirements for bulk product and remediation wastes has been a major stumbling block for parties trying to eliminate PCBs from buildings, particularly schools.  In addition, the fact that the bulk product wastes typically contain greater amounts of PCBs, but are treated more leniently under the regulations, contributes to an undermining of confidence in the regulations.  It is refreshing that the EPA is finally willing to listen to public comment on this important issue.