LEGAL NEWS


New PCB Regulations: What Contractors Should Know


By Rosemary Nunn and Diana A. Chang, Musick, Peeler & Garrett LLP


determining whether a building has polychlorinated biphenyls (PCBs) before they begin work. PCBs are manmade chemicals


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that were used in building materials though the early 1980s. Considered an environmental contaminant, their disposal is increasingly regulated by federal and local laws. Indeed, several counties and cities in Northern California recently enacted rules, effective July of 2019, requiring that contractors test for PCBs prior to demolition activities. Similar rules may be enacted


in counties and cities in Southern California as they confront similar PCB issues. Unless contractors understand and anticipate the various types of PCB-containing building products they may encounter, and the requirements for testing, handling and disposal, they could face hefty penalties, injunctions and/or criminal sanctions.


What are PCBs? PCBs are non-flammable, chemi-


cally resistant, stable compounds comprised of carbon, hydrogen, and chlorine atoms. Te physical and chemical properties of PCBs made them highly desirable for use in hundreds of commercial and industrial applications. For example, PCBs were commonly used in electrical equipment such as transformers, capacitors, and


16 July/August 2019


ontractors working on commercial renovation projects will soon be responsible for


fluorescent light ballasts. Because of PCBs’ thermal stability, they were added to hydraulic oils and heat transfer fluids and utilized in thermal (pipe) and fiberglass insulation. Finally, because PCBs imparted weather resis- tance and plasticity, they were added to building products, including caulks, adhesives, and sealants. Tese desirable physical and


chemical characteristics also made PCBs an environmental contaminant. Once released into the environment, PCBs’ chemical stability prevents them from naturally breaking down and allows them to persist indefinitely. PCBs attach to fine soil particles, where they can cycle through air, soil, and water, and bioaccumulate in the food chain.


Federal Regulations In 1976, Congress passed the Toxic


Substance Control Act (TSCA), which banned the manufacture of PCBs and granted the EPA authority to regulate any product containing 50 ppm (parts per million) or more PCBs. Te EPA created two categories of PCB waste: PCB remediation waste and PCB bulk product waste. PCB remediation waste includes material contaminated with PCBs as a result of a spill, release, or other unauthorized disposal. PCB bulk product waste covers materials purposefully manufactured with PCBs. Contractors are required to


properly dispose of PCB-contaminated materials. In the past, contractors were required to separate PCB bulk product waste from PCB remediation waste, separately label the waste containers, and separately dispose


Rosemary Nunn Diana Chang


Risk of Hefty Penalties for Companies that Fail to Comply on Northern CA Projects; Southern CA May Soon Follow


of them at different landfills. As a practical matter, this meant that PCB-containing caulk, a PCB bulk product waste, had to be disposed separately from the other building materials which it contaminated, because the latter were considered PCB remediation waste. Separating the caulk from the attached building materials was an onerous, time- consuming, and costly task. In 2012 the EPA streamlined


the process, allowing certain PCB remediation waste to be disposed as bulk product waste, so long as the contaminated building materials were still attached to the original PCB-containing product. Tis allowed contractors to dispose of caulk and its adjoining substrates (for example, masonry and concrete) together. In addition, the EPA guidelines


recommend contractors utilize dust control measures, such as placing the containment area under negative air pressure, using high-efficiency particulate air (HEPA) machines, and employing tools that minimize dust generation and heat.


California Regulations California’s Department of Toxic


Substances Control (DTSC), a part of Cal/EPA, regulates PCBs in our state. DTSC recommends similar best management practices as the EPA, such as wearing protective clothing, keeping work areas well ventilated, and using respirators. However, California has a


stricter threshold for the disposal of PCB-containing building materials. Any product containing more than


California Constructor


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