LEGAL NEWS
5 ppm PCBs (as opposed to 50 ppm at the federal level) is subject to California’s hazardous waste regula- tions. DTSC regulations similarly govern the transport and disposal of PCB-contaminated products, but do not distinguish between remediation waste versus bulk product waste for disposal purposes.
Recent Focus on PCBs in Demolition Activities
In 2015, the EPA spearheaded a
growing concern that PCBs might enter the environment through demolition or renovation activities. Indeed, unhealthy quantities of PCBs exist in the San Francisco Bay and runoff from building demolition activities was identified as a potential source. PCBs are odorless and invisible
to the naked eye, and thus cannot be detected without testing. However, EPA guidelines do not require that owners or contractors test for PCBs. Tis leaves a loophole where many owners claim ignorance that their construction project could be contami- nating the environment, or that they need to pay the higher costs to comply with PCB regulations.
New PCB Rules in the Bay Area
To address this loophole, several
counties and cities in the Bay area are now requiring contractors to test for PCBs as part of their demolition permit application. Effective July 1, 2019, new rules
will be implemented in the counties of Alameda, Contra Costa, Santa Clara, and the cities of Fairfield, Suisun, and Vallejo. Tese new rules are designed to prevent PCBs from entering the storm water system, focusing on the following building materials: caulking, sealants, rubber gaskets, adhesive/ mastics, thermal insulation, and fiber- glass insulation. Under these new rules, contractors must perform an additional PCB
www.AGC-CA.org
To address a loophole in EPA guidelines, several counties and cities in the Bay area are now requiring contractors to test for PCBs as
part of their demolition permit application.
Screening Assessment as part of their demolition permit application. Te PCB Screening Assessment is analogous to the process for identi- fying asbestos-containing materials prior to demolition. First, the applicant must determine whether the building may have PCB-containing materials based on the building’s age, use, and construction type.
Representative Sampling Required
Te PCB Screening Assessment
focuses specifically on buildings constructed or renovated between 1950 and 1980. If the building could contain PCBs, then the applicant must take a representative sampling of priority building materials to determine whether PCB concentrations exceed 50 ppm.
Te representative sampling must
follow the Bay Area Stormwater Management Agencies Association’s protocols for evaluating priority PCBs- containing materials before building demolition. Tese protocols require the representative samples be analyzed by a certified analytical laboratory. If PCBs are detected, the applicant must submit a report of all PCB concentra- tions in priority building materials. Te applicant must then comply with all federal and state PCB disposal require- ments during demolition. In light of these new demolition
permit application requirements, contractors bidding on Bay Area
projects should ask project owners whether prior PCB sampling reports exist. If not, contractors should carefully review the bid documents to determine whether the building’s type, age, and prior use make it a likely candidate for PCB-containing building materials. Contractors bidding on projects
that may contain PCBs should factor in additional costs for the PCB screening assessment as part of the demolition permit application, and costs for PCB disposal.
PCB Penalties Te TSCA is a strict liability
statute. Tis means that violations are determined without regard to the violator’s intent or knowledge. Failure to comply with federal PCB disposal regulations may result in a notice of noncompliance, civil fines, and/or criminal sanctions. California penalties are even
harsher. Failure to follow DTSC’s hazardous waste regulations can result in fines up to $70,000 per day.
Takeaways PCBs in storm water systems
are not limited to the Bay Area. Los Angeles County recently discovered PCBs in its storm water system and in May filed a lawsuit against Monsanto to recover damages. Similar lawsuits have been filed by the City of San Diego, San Diego Unified Port District, and the City of Oakland. Given the trend towards expanding
environmental regulations and lawsuits addressing PCBs, contractors should develop best practices for the testing, handling, and disposal of construction debris to avoid liability for this environmental contaminant.
Rosemary Nunn is a Partner and
Diana A. Chang is an Associate with the Orange County office of Musick, Peeler & Garrett LLP. Visit the company online:
https://www.musickpeeler.com, or call (714) 668-2400.
Associated General Contractors of California 17
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