Schools, PCBs and TSCA; the Law of Unintended Consequences – Part 2

In Part 1 of this post, I wrote about the misguided push in my home state of Connecticut to test more schools for PCBs. There’s a misconception that PCBs, even with the low potential doses likely to occur in the indoor environment, pose a health risk. This misconception persists despite a 50+ year history of PCBs in many school buildings without a documented instance of a student, teacher or other staff member experiencing adverse health effects indicative of PCB toxicity. And yes, scientists have looked.

While the presence of PCBs in buildings does not seem to have caused bodily harm, the act of removing them from school buildings can be devastating to school and municipal budgets. Experience shows that removing PCBs from schools is a very expensive process; one whose budget can grow exponentially as more information and test data becomes available. There are relatively few communities whose annual school budgets can withstand the impact of a school PCB removal project.

I ended Part 1 with this paragraph:

“TSCA – the Law of Unintended Consequences
You can read the Toxic Substances Control Act (TSCA) from cover to cover and you’ll find nothing about removing PCBs from schools or other buildings. Take a look at the 800+ page legislative history of TSCA and you will still find nothing about PCBs in schools. How about EPA’s PCB regulations (40 CFR 761)? No, still nothing about removing PCBs from schools or other buildings. So if there is nothing in the statute or the regulations about removing PCBs from schools or other buildings, and if there is no evidence that PCBs in building materials pose a health risk, then what explains the need to assess and remove PCBs from schools?”

The goal of Part 2 is to answer that question.

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In the beginning . . .
From their first publication in 1978/79 until the 1998 Mega-Rule changes, the PCB regulations contained what I call the “in-service rule”, which reads in part:

“NOTE: This subpart does not require removal of PCBs and PCB Items from service and disposal earlier than would normally be the case. However, when PCBs and PCB Items are removed from service and disposed of, disposal must be undertaken in accordance with these regulations. PCBs (including soils and debris) and PCB Items which have been placed in a disposal site are considered to be ‘‘in service’’ for purposes of the applicability of this subpart”.

My naive interpretation of the in-service rule is that PCBs that were already incorporated into some product – and thus in-service – could remain in service until that product was taken out of service.  Thus PCBs in building materials could remain in those materials (and those materials could remain where they were) until they were removed from service and prepared for disposal.

(First Disclosure: In a conversation with EPA headquarters, I was told the in-service rule was only intended to apply to PCBs that had already been disposed of in a manner that did not comply with the PCB regulations. However, I think it’s obvious from the use of the words “in-service” that this current EPA HQ interpretation is inconsistent with a plain reading of the text. In my view it takes a somewhat “strained” interpretation to equate the terms “in-service” with “illegally disposed of”).

Looking beyond the in-service rule, even a casual examination of the current PCB regulations makes it apparent that EPA’s main regulatory focus has been on liquid PCBs, like the ones found in transformers and capacitors. This makes sense when your objective is to limit the further spread of PCBs to the environment – liquids are prone to being spilled and obviously spread much more easily than solids. Objectively, the regulation of PCBs formulated into solid products, like building materials, seems to have been an afterthought for EPA. While its researchers knew about PCBs in building materials, even in the 1970s, EPA’s regulation writers either did not know about them or just decided they weren’t important.

The 1994 proposed use authorization
EPA’s regulation writers finally started paying attention to PCBs in solids in the mid-1990s.  In a prelude to the 1998 PCB Mega-Rule, EPA published an Advance Notice of Proposed Rule Making (an ANPRM) in 1991 requesting comments on a number of issues concerning PCB regulation. In the December 6, 1994 Federal Register, EPA published a summary of the comments received and explained how the agency planned to respond to them.

Many commenters described experiences where PCBs had been unexpectedly discovered in building materials (such as caulk, paint and adhesives) during demolition or renovation projects. These commenters told EPA that removing these PCBs posed a huge engineering, construction and financial burden. EPA responded that it had previously been unaware of this problem, but was now proposing a solution to this unintended consequence of the PCB regulations. A few pages later, in the very same 1994 Federal Register volume, EPA proposed a new use authorization, 40 CFR 761.30(q), to legally authorize the continuing use of PCBs incorporated into solid building materials.

In the preamble to the proposed change EPA explained its rationale for the new use authorization this way:

“While the continued use of unauthorized pre-TSCA materials is a violation of the existing PCB regulations, in most cases the premature removal of the media containing PCBs could only be achieved with great difficulty and at enormous expense given the extraordinary efforts that would be required to remove the PCBs.” (Emphasis added).

So as of December 1994, the stage was set for the adoption of a new use authorization for PCBs in solid building materials. But, as one of my old bosses liked to say, “There’s been many a slip between the cup and the lip”. When, four years later, EPA finally promulgated the 1998 PCB Mega-Rule the proposed use authorization for PCBs in building materials was missing. What happened? The only explanation on offer was found at the end of the 1998 Mega-Rule preamble:

“Finally, EPA is deferring regulatory action on proposed 761.30(q) for future rule-making”. . . . “Although EPA received many comments supporting the proposed authorizations, many commenters wanted EPA to drop many, if not all, of the proposed authorizations. EPA needed additional time to review the recently submitted risk assessment studies and also to obtain additional data for certain uses in order to reduce the uncertainties associated with the available studies.”

Since it is almost 20 years later, do you think it would it be impolite to ask whether these uncertainties still exist? In a conversation with EPA headquarters a few months ago I was told not to expect a use authorization for PCBs in building materials any time soon.

So what exactly are the uncertainties EPA is concerned about? And how do they relate to PCBs in schools?

(Second disclosure: This the end of the historical account. The rest of this post is based on my research and opinions).

We know a lot about PCBs. In fact they are among the best studied of all the man-made environmental contaminants. There are 209 different individual PCB chemicals, known as congeners that make up the PCB group; we know all their molecular weights, volatilities, and many of their other physical properties. We divide them into dioxin-like and non-dioxin like categories based on the way they interact with biological receptors, which has also been studied in depth. There are elaborate risk assessment models that claim to assess the level of risk based on just which particular combination of the 209 congeners are present. Every week there is a new research paper published about PCBs with even more information.

What is probably more important is that we know the average concentration of PCBs in the environment and in people has been dropping significantly since the 1970s. We know that the average daily and annual doses of PCBs people receive has also declined significantly. And of course we know that despite their significant efforts, scientists have not been able to tease out any consistent evidence of adverse health effects in people exposed to PCBs in building materials.  Remember, consistent reproducible results is the most important factor separating good science from bad science.

The question I set out to answer with this post was: If there is nothing in the statute or the regulations about removing PCBs from schools or other buildings, and if there is no evidence that PCBs in building materials pose a health risk, then what explains the need to assess and remove PCBs from schools?

Because, after all if Congress were inclined to pass legislation, or if the EPA were going to promulgate regulations that would cost communities and public school systems billions of dollars, don’t you think there would be a cost-benefit analysis somewhere? Before new federal regulations come into being, there is supposed to be a rigorous assessment of potential negative and positive impacts – for the very purpose of avoiding costly unintended consequences. So um, what happened here?  Because there never was a cost/benefit analysis; there never was an honest discussion with the public about risks, costs and potential benefits about regulations that could collectively cost communities hundreds of billions of dollars.

Reluctantly, the conclusion I’ve come to is that there are no good answers to my questions.  My best guess is that most EPA researchers and independent scientists would rather not be the ones to point out that the emperor has no clothes; but the facts are that the fear of PCBs in buildings is without scientific foundation. But at the cost of millions of dollars per building incurred to our school budgets unnecessarily, isn’t it time to to pay attention to the real science?

Final thoughts
Last July EPA issued new guidance for schools and other buildings that may contain PCBs. While the preface contains disclaimers that the new guidance is not intended to replace the requirements of the PCB regulations or TSCA, after reading them one could be forgiven for thinking that this was pretty much what they were supposed to do. The guidance recommends a sensible Best Management Practices (BMP) approach to managing known or suspected PCBs in buildings and downplays the need or desirability of testing building materials for PCBs.

It’s unlikely that this new guidance will be codified into regulations any time soon, but it is helpful for EPA to soften its guidance and it hopefully signals a more rational approach to the issue of PCBs in buildings going forward.

 

Postscript: OTO just changed its web host, which led to some confusion in the posting of this article.  We apologize for any inconvenience.