Developments in the Science of PCBs

Posted on November 13, 2015 by Angus Macbeth

For those of you who are becoming exhausted by the opinions in the Fox River case, it is time to suggest that the fundamental underpinning of the case – the toxicity of PCBs to humans and to fish – may be in jeopardy.

Twice under the auspices of the World Health Organization “consensus toxicity factors” for dioxin-like compounds including PCBs have been published. These factors were based on analysis of laboratory animals, typically rodents. The lead author of both reports was Martin van den Berg.

Recently an article was published in Chemical Research in Toxicology, “Consensus toxicity factors for PCPDs, PCDFs, and PCBs combining in silico models and extensive in vitro screening of AhR-mediated effects in human and rodent cells,” where van den Berg was the second author on the article who reported on the results of dosing human cells with PCBs and found that PCB 126 was the only PCB congener that produced a measurable response from human cells and that the result was more than 30 times lower than the WHO TEF value for PCB 126. Similar results have been reported in other papers.

As to fish, T.B. Henry has recently published analysis  in Critical Reviews in Toxicology , “Ecotoxicology of polychlorinated biphenyls in fish – a critical review.” He concludes: “Biological activity of PCBs is limited to a small proportion of PCB congeners [e.g., dioxin-like PCBs…] and occurs at concentrations that are typically orders of magnitude higher than PCB levels detected in wild fish… Overall, there appears to be little evidence that PCBs have had any widespread effect on the health or survival of wild fish.”

What would the District Court and the Seventh Circuit make of this adjustment to the facts of the case?

Illicit PCB Dumping Prompts Emergency Regulation

Posted on October 1, 2013 by Thomas Lavender

On September 25, 2013 the South Carolina Department of Health and Environmental Control (SCDHEC) filed an emergency regulation in response to multiple occurrences of illegal dumping of substances containing polychlorinated biphenyls (PCBs) into multiple sewer systems across the State. The Emergency Regulation took effect immediately upon filing and remains in effect for ninety (90) days.  SCDHEC acknowledged the existence of an ongoing investigation into the origin of the materials, including state and federal authorities.  SCDHEC noted that there was currently no known impact to public health or any confirmed discharge to surface water bodies.  It is also believed that publicly-owned treatment works (POTWs) in states bordering South Carolina have recently detected PCBs in their systems.

In August, SCDHEC had acknowledged that PCBs had been detected in several POTWs in the Greenville-Spartanburg area of the State.  Concurrent with the filing of the Emergency Regulation, the agency announced that PCBs had now been detected in a POTW in the Columbia, SC area.

Some South Carolina wastewater treatment systems are permitted for the land application of their sludge.  Based on the suspected criminal activity, DHEC has determined the need for specific regulations limiting the land application of sludge containing detectable levels of PCBs.  The Emergency Regulation addresses the land application of sludge from wastewater treatment systems and specifically limits land application to sludge containing no detectable levels of PCBs and requires increased testing of sludge, regardless of disposal method, to aid in identifying illegal dumping suspects.  SCDHEC has also informed all of the state’s class III landfill operators and waste water treatment plants of the matter, and provided them guidance regarding proper disposal and reporting any suspicious activity.

SCDHEC issued a Be On the Lookout (BOLO) alert through the State Law Enforcement Division to heighten awareness among law enforcement of illegal dumping and solicit the help of local law enforcement agencies.

PCB-Containing Caulk: EPA Mixes Its Messages

Posted on September 22, 2010 by Ralph Child

EPA has issued an Advanced Notice of Proposed Rulemaking that broadly re-opens the question whether to authorize PCBs in caulk and under what conditions. EPA did not propose any new rules on the issue, but sought comments on what to do.   This balance of this post reviews EPA’s regulatory efforts on this issue and the comments on the ANPRM, and then summarizes some options for building owners while the agency ponders.

 

 

            Last year EPA announced that in “recent years” it had learned that many 1950 to 1978 buildings may contain caulking with PCB concentrations higher than 50 ppm, indeed often quite a bit higher. Linda Bochert’s post of November 3, 2009 linked to the EPA’s PCBs-in-caulk website, which the agency established to provide guidance for preventing exposures and conducting safe building renovations. 

 

 

            Last year’s guidance conspicuously avoided a central issue: EPA’s position on the legal status of PCB-containing caulk. EPA’s position actually is clear: PCBs at levels above 50 ppm in caulking are not authorized, hence are illegal to maintain. Yet EPA has never mounted a program to identify and remedy PCB-containing caulk, and last year’s guidance tacitly condones leaving PCBs in place indefinitely. So EPA de-emphasizes its legal interpretation. Quite possibly that is because EPA managers have not viewed PCB-containing caulking as causing actual health impacts whereas remediation certainly poses high costs and raises its own health risks.   

 

        

            The bottom line?  Clear-cut and sensible regulatory answers remain far in the future. Meanwhile EPA is sending mixed messages – PCBs in caulk are unauthorized but don’t overreact while we ponder. Building owners, prospective purchasers and contractors must sort out their own answers about what to do or not do.

 

Regulatory Background

 

            In truth, EPA long has had general awareness of PCBs in old caulk. If the concentrations are below 50 ppm, the caulk qualifies as an excluded PCB product and is not regulated by EPA. If the concentrations are higher, EPA considers the use to be illegal to maintain because EPA has never issued a use authorization for PCBs in building materials. 

 

 

            When over-50 ppm PCBs in caulk are reported to EPA, generally EPA has required remediation under TSCA’s rules. EPA New England (Region 1) has had a number of such matters. The Region also insists that cleanups must meet the requirements of the PCB spill regulations, which generally require cleanup in occupied buildings to levels well below 50 ppm.

 

 

            Yet there is no obligation under TSCA for building owners to test for PCBs in caulk or to report exceedances to EPA. Many building owners ignore the issue, even if they are aware of the general possibility. So unauthorized caulk persists in many buildings, or goes away during renovations or demolition, awaiting potential discovery in unplanned circumstances. 

 

 

            That has led to a number of mini-crises, particularly for public school systems facing growing parental and school staff awareness.   PCBs in schools have been much discussed in New York and elsewhere. In January 2010 the New York City schools and EPA entered into an extensive consent order to evaluate school buildings and study ways to encapsulate or treat PCBs over a period of several years. 

 

    

            In practice then, EPA has sent mixed messages. It has commendably - albeit tacitly -recognized that immediate and costly removal of unauthorized PCBs in caulk usually is not warranted. Yet the use remains unauthorized.  Given the strictures of TSCA and the ill repute of PCBs, that remains unsettling for many building owners and prospective purchasers.

 

 

            Efforts to authorize PCBs in caulk: the 1994 NOPR

 

            The mixed messages from EPA and the issues of cost and health risks call out for clear cut regulatory answers, but also hamper EPA from issuing definitive regulations.   It has already tried and retreated before. 

 

 

            Specifically, in 1994 as part of unrelated PCB rule changes, EPA proposed to authorize PCBs in pre-TSCA building materials, with conditions, similarly to intact asbestos containing materials.   The NOPR included EPA’s conclusion that continued use at concentrations above 50 ppm did not pose a significant risk as long as the materials were in good condition. 59 Fed. Reg. 62788, 62810 (12/6/94).

 

The proposed conditions had many downsides from a building owner’s perspective, because leaving the materials in place, once discovered, would have then required:

 

·        Notice within 30 days to EPA and potentially exposed individuals;

·        Marking in a prominent location;

·        Quarterly air monitoring and wipe sampling for one year and annually thereafter until removal of the material;

·        Removal or containment (by encapsulation with a sealant) if wipe sampling or air monitoring showed exceedances of workplace standards;

·        24-hour notice to EPA of such exceedances;

·        Record-keeping.

 

EPA’s final rule issued deferred the issue while indicating EPA intended to issue a supplemental notice of proposed rulemaking and asking for further information on how much of a problem this is or not.  63 Fed. Reg. 35383, 35386 (6/29/98)

 

            The 2010 ANPRM and Comments

           

            Over a decade later, EPA has issued an ANRPM on unrelated PCB rule changes, and used it to request comments on whether EPA should reconsider the 50 ppm level for excluded PCB products. That request also specifically called for comment on whether EPA should issue a use authorization for PCBs in caulk.  ANRPM, 75 Fed. Reg. 17645, 17664 (April 7, 2010). The ANPRM did not, however, describe any revised levels or conditions that EPA might propose for PCBs in caulk. 

 

 

             Many of the comments on the APNRM on this issue call for more study, but otherwise reflect an unsurprising range of recommendations. Comments from the Children’s Environmental Health Network urged EPA to cease any thought of authorizing an increase in the 50 ppm level. Comments from the American Federation of Teachers recommended a “suspension” of the allowance of PCB-containing caulk below 50 ppm while research is done. Massachusetts DPH comments tracked EPA’s position of 1994 by recommending leaving intact caulk alone, and included its own recent guidance to that effect. MIT’s comments proposed a facility-specific and detailed risk management approach. Comments from the National Association of College and University Business Officials recommended issuance of a use authorization for intact materials, perhaps conditioned on an I&M program.

 

 

            Overall, the ANPRM attracted relatively few comments on this issue, by contrast with voluminous comments from the utility sector on other issues. The paucity of attention may mean that PCBs in caulk still have not reached a widespread awareness in the commercial real estate community, which provided exactly no comments. Or building owners just may prefer the status quo.

 

 

           

Continued Regulatory Uncertainty: Working Out Own Answers

               

                It seems likely that EPA will not be providing any new rules on this issue in the foreseeable future.  That leaves the regulated community to work out its own answers as best it can. 

 

 

                It appears that many building owners have determined not to look for PCBs in caulk, even in buildings where they might be expected.  There is no requirement to do so and there have been no reports of actual health impacts due to PCBs in caulk. 

 

 

                Other building owners have chosen to test for PCBs in caulk in order to reduce regulatory risk, but only when renovations or demolition are undertaken for other reasons.  Only if unauthorized PCBs are found then do they conduct remediation under the health and safety and disposal restrictions under the PCB rules. 

 

 

                Some prospective purchasers are including this issue in their due diligence, particularly if renovations are planned, and building attendant costs into the pricing.  But some do not, relying on the absence to date of regulatory requirements, regulatory pressure or health impacts.

 

 

                Some owners are writing requirements into construction contracts to make sure that contractors identify and handle any such caulking appropriately, similarly to contractual provisions for asbestos-containing materials. 

 

 

                Given EPA’s mixed message – PCBs in caulk are unauthorized but don’t overreact – each of those practices may be sensible. Building owners and prospective purchasers must choose their own paths based on their own policies and risk tolerance.

PCB-Containing Caulk: How Old Is Your Building?

Posted on November 3, 2009 by Linda Bochert

The U.S. Environmental Protection Agency (EPA) has found evidence that buildings constructed or renovated between 1950 and 1978 may have PCBs at high levels in caulk around windows and door frames, between masonry columns and in other building materials. Congress banned the manufacture and most uses of PCBs in 1976.

 

On September 25, 2009, EPA issued general guidance to communities as well as specific guidance to help school administrators and teachers reduce the risk of PCB exposure to children, and to assist contractors renovating buildings with suspect caulk.

 

Although EPA has generated specific guidance for school administrators and teachers, all buildings constructed during this time period may have PCB-containing caulk. EPA’s guidance helps to identify the extent of potential risks and to determine if mitigation steps are needed. EPA will work directly with building owners and administrators facing serious problems to help develop a practical approach to reduce exposures and prioritize caulk removal. 

 

EPA has also identified several unresolved scientific issues that must be better understood to determine the magnitude of the issue and to develop the best long-term solutions. As a result, EPA will conduct new research to better understand the risks posed by PCB-containing caulk. EPA plans to use these research findings to make additional recommendations to further minimize exposure and generate an action plan for caulk removal.

 

While the materials EPA released identify the issue of PCB-containing caulk as a concern, the agency advises there is insufficient information concerning the scope or severity of the issue to provide property owners and school administrators with very concrete advice about next steps.  Unfortunately, this can only leave both property owners and school administrators wondering, "just how big a concern is this and how should I respond?" Like lead paint, asbestos, mold, indoor air quality and other types of building hazards, PCBs can be added to the list of risks that real estate professionals and lawyers will have to address in building transactions.

 

For more information, contact EPA’s toll free hotline at 1-888-835-5372 or the EPA website located at: http://www.epa.gov/pcbsincaulk.