New EPA Guidance Helps Brownfields Participants Comply With PCB Cleanup Regulations
 
May 4, 2006
 

In November 2005, the Environmental Protection Agency (EPA) released the Polychlorinated Biphenyl (PCB) Site Revitalization Guidance Under the Toxic Substances Control Act (TSCA). The guidance provides important information on the characterization, cleanup, containment and disposal of wastes containing PCBs that are regulated under the TSCA regulations (40 C.F.R. §761 et seq.). The new guidance document will be an important tool for state brownfields cleanup programs, EPA brownfields grant recipients, and others who are involved with revitalizing properties contaminated with PCBs.

By way of background, PCBs were once used in hundreds of industrial and commercial applications because they were not flammable and they were chemically stable, as well as being good electrical insulators. PCBs were most commonly used in electrical, heat transfer and hydraulic equipment; as plasticizers in paints, plastics and rubber products; and in pigments, dyes and carbonless copy paper. According to EPA estimates, more than 1.5 billion pounds of PCBs were manufactured in the United States until their production ceased in 1977. In 1976, the concern over the toxicity of PCBs led Congress to enact Section 6(e) of TSCA that included prohibitions on the use, manufacture, processing and distribution of PCBs. Incidentally, TSCA prohibits the use of PCB-contaminated portions of real property under Section 6(e)(2)(a), unless the owner of the contaminated property complies with all applicable use authorizations. In general, this means that the property owner must first clean up the property before it can be used.

EPA’s new guidance document helps with site re-use because it clarifies what to do with the contaminated soil and other debris generated as a result of the cleanup of a PCB spill. The options available for disposing of PCB wastes are discussed in the guidance. In addition, the new guidance examines the factors one should consider when determining the appropriate cleanup level for a site. For instance, the EPA advises that the type of PCB wastes onsite, and the intended future use of a brownfields site, are among the factors that should be considered when determining the level of cleanup of a site. The guidance also discusses requirements for meeting cleanup standards and for establishing deed restrictions on a property to limit its future use where necessary. The guidance provides examples of “typical” and “worst case” PCB cleanups and how to address the different kinds of scenarios. The document includes a matrix of contamination and reuse situations and the applicable TSCA PCB requirements.

The steps that are necessary to cleanup and reuse PCB-contaminated sites vary greatly from site to site; however, EPA’s new guidance document will aid property owners, their legal counsel and environmental consultants, in understanding what is required to clean up PCB-contaminated properties for future re-use and redevelopment.

For more information, e-mail Sarah C. Smith at sarah.smith@hklaw.com or call toll free, 1-888-688-8500.