What Are They, Who Needs One, And By When

This issue of HETI Horizons provides an overview of the Spill Prevention, Control, and Countermeasure (SPCC) Rule – including its applicability, requirements and implications. It is a federal regulation that impacts more than 400,000 facilities of all types nationwide, and there are potentially serious consequences, fines and penalties for noncompliance. Affected facilities were required to implement the SPCC Rule by November 10, 2011, but a high percentage of them remain unaware of requirements under the Rule and the risk exposures of being non-compliant.

It should be noted that this overview is not all-inclusive and does not cover state and local requirements that may impose additional or differing requirements to those in the federal SPCC Rule. Additionally, there are a number of other federal, state, and local codes and regulations that also apply to facilities subject to the SPCC Rule.

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History and Update

ASTM first issued guidance for performing due diligence environmental site assessments (ESAs), or Phase I’s, in 1993. The stated intent was (and remains) to assist the user with qualifying for certain “limited liability protections” (LLPs)  available under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The ASTM practice has undergone periodic revisions, and serves a common reference and protocol for the purpose of identifying, before acquisition or occupation of a property, if a release of oil and hazardous material (OHM) to the environment is present. ASTM “standard practice” E1527 defines information sources and records to be reviewed, outlines certain information to be obtained from governmental authorities and persons associated with the property, and performance of limited visual and physical inspection of the property. However, it is important to note that the use of the ASTM practice has always been voluntary and is not required to qualify for CERCLA LLPs.

The ESA process also plays a critical role in business decision-making and risk management – having been incorporated by banking, insurance and other financial services institutions into their internal due diligence processes. Thus, the Phase I has become an accepted industry practice for environmental risk evaluation.

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One of the current cutting-edge advances in home energy conservation is the use of spray polyurethane foam insulation. Although the chemistry has been around since the 1940s, the past ten years have seen the application expand in commercial buildings and high-end homes. Spray foam is applied to the structural elements of a house – often on the attic roof deck, on foundation footings, and within exterior wall cavities – to provide insulation, act as a vapor barrier, and reduce noise transmission. While most applications are for newly constructed buildings, spray foam may also be used to retrofit older buildings and homes.

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Claims involving structural fires pose many unique challenges. The origin of visible soot and char, as well as the extent of damage and need for specialized remediation techniques, means that claim professionals, among others, be informed on the most current consensus standards. HETI Horizons is pleased to publish this article, prepared by the Indoor Air Quality Association (IAQA) and the Indoor Environmental Standards Organization (IESO), on a new standard to evaluate HVAC systems following a structure fire.

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Polychlorinated Biphenyls (PCBs) have historically been associated with use in dielectric fluids for transformers, light ballasts and other electrical devices. The use and disposal of this equipment has been strictly regulated under the Toxic Substances Control Act (TSCA), found in the federal code at 40 CFR 761.50. The Environmental Protection Agency (EPA) banned the use of PCBs in 1977 due to their ability to bio-accumulate in many species. The EPA considers high levels of PCBs to be “probable human carcinogens” and their use is reported to have adverse effects on the immune, reproductive and nervous systems. Today, the cleanup and disposal of PCB waste is regulated under the EPA Office of Solid Waste and Emergency Response.

PCBs have been identified in many lesser known uses – such as window caulk, masonry joint caulk, concrete expansion joints, grout and mastic. In many of these applications, Aroclor 1254 (the plasticizer of choice) was added at the job site to make the original product more pliable, durable and water-resistant. PCBs were used in concentrations ranging from 1% to 20% in these products and were widely used in buildings constructed or renovated between 1950 and 1978.

PCBs have been found not only in buildings but in applications ranging from airport runways to concrete water pipes and tanks. In addition, they are known to leach into porous materials such as concrete and masonry – causing these materials to become contaminated and treated as PCB remediation waste as well.

PCB Regulation…or Lack Thereof

Under TSCA, PCBs in products other than transformer oils are classified as “non-authorized” uses when the concentration exceeds 50 parts per million (ppm). In accordance with TSCA, these non-oil products must be removed and properly disposed. The removal must be performed in accordance with a risk-based disposal approval process – requiring a comprehensive program including Certified Industrial Hygienists, risk assessors and engineers.

The steps include a comprehensive building characterization and sampling plan, sample collection and     interpretation, sample documentation, risk assessment, abatement strategy development, and plan approval by EPA. Since the concentration of PCBs may vary widely even within the same building, extensive testing must be conducted to document the presence of PCBs throughout the building and the samples sent to accredited laboratories for analysis in accordance with a strict testing protocol.

Currently, there are no specific exemptions to regulations addressing PCBs for a building in use. Although the regulation requires removal, there is no duty to test to determine the presence or concentration of PCBs…no duty to report the findings to EPA…and no explicit duty to remove PCBs from a building that remains in use.

However, there are both civil and criminal penalties for misuse of PCBs. Civil penalties may range up to $32,500 per violation per day; and criminal penalties for willful and knowing violation can be as high as $25,000 per day and/or one year in prison. There is very limited enforcement of the regulation in many regions of the United States.

PCB Removal

The actual remediation process should be performed by experienced contractors. For removal of PCBs found on the exterior of a building, large tent-like enclosures, not unlike those used for asbestos abatement, are constructed around scaffolding. The enclosures are maintained under a pressure differential using HEPA-filtered devices. EPA recognizes a variety of removal techniques.

As the project progresses, additional testing of building materials must be performed to document that the PCBs have been removed to an acceptable level. For example, a limit of one ppm is permitted in construction materials that are PCB-contaminated; so it may be necessary to remove several rows of brick around a window to achieve this limit. Soils may need to be excavated and tested to get to a level of 20 ppm. And disposal of PCB-contaminated waste is strictly regulated – with very few landfills licensed to handle it. Needless to say, PCB remediation is an expensive, time-sensitive process that must be planned well in advance of building demolition or renovation. The process nearly always takes longer and costs considerably more than originally anticipated.

HETI…Helping to Deal with PCB Issues

Whether EPA continues to enforce this regulation remains to be seen. There have been efforts to re-visit the rule to consider limiting its application. Most recently, in 2010, EPA issued an Advanced Notice of Proposed Rulemaking concerning the reassessment of the use authorizations for PCBs. Despite holding a series of public meetings and collecting comments, EPA has not issued any proposed changes.

Nevertheless, the issues of PCBs will need to be addressed. Hydro-Environmental Technologies, Inc. (HETI) can assist building owners and managers, along with their insurance and legal advisors, manage the risk. Whether it’s PCBs, asbestos, lead-based paint, underground storage tanks, or another environmental issue associated with building management, renovation or demolition, HETI can help our clients assess and address those needs.

Managing the Risks

Nanotechnology – the manipulation of matter on a near-atomic scale to produce new structures, materials and devices – offers the promise of unprecedented scientific advancement for many sectors, such as medicine, consumer products, energy, materials, and manufacturing. Over the course of the next decade, nanotechnology could have a one trillion dollar impact on the global economy and employ two million workers – half of them residing in the United States.

This increasing use of nanomaterials in the global market brings new challenges to understanding, predicting and managing potential safety and health risks. Little is known about what effect these materials may have on human health; so until the results from research studies can fully elucidate the characteristics of nanoparticles that may pose a health risk, precautionary measures are warranted.

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Planning Is Key to Avoiding Expensive Mistakes

Commercial buildings have a defined life-cycle. At some point, most existing structures will be demolished for a new use, renovated as a part of an expansion or change, or occasionally damaged or destroyed by disaster (fire, earthquake, hurricane, tornado, flood, etc.).

As construction technology has advanced, building materials have changed and become more specialized. Engineered materials and steel have replaced wood, fluorescent lamps have replaced the light bulb, and a vast number of products – both man-made and naturally-occurring – have found uses in buildings to meet specific design needs. Many of these products were created to solve problems or satisfy needs; but often little thought was given to the impacts and problems that these “answers” may themselves create.

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A Look at the Basics

Natural resource damages (NRD) may occur as a result of releases of hazardous substances or oil. By statute, any natural resources held in the public trust, which have been “injured”, must be restored and the public compensated for their loss.

Statutory Authority

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) is designed to address any release, or threatened release, of hazardous substances, pollutants, or contaminants that could endanger human health and/or the environment. The statute also provides authority for assessment and restoration of natural resources that have been injured by a hazardous substance release or response.

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Still A Potential Issue?

Although The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA) have regulated various aspects of asbestos for many years, some companies are still unaware or unwilling to comply with the regulations. As a result, employers are still being cited and fined for failure to adhere to these rules. On May 24, 2011, OSHA issued penalties of $1,247,400 to an Illinois company that was using unprotected and untrained workers to conduct asbestos removal. In February 2011, the Washington State Department of Labor and Industries fined a company $400,000 for willful and serious worker safety violations involving the removal of asbestos from an old high school and a government building. In March of 2011, the EPA settled an enforcement action against the General Services Administration (GSA) and four of its contractors for violating the federal Clean Air Act requirements by failing to properly remove, handle and dispose of asbestos during a supposedly “green” renovation project of a post office and a court house building in Boston, Massachusetts in 2007. The EPA fined the GSA and the four contractors $100,000 for this violation.

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The Emergency Planning and Community Right-to-Know Act (EPCRA) was passed in 1986 in response to the 1984 leak of methyl isocyanate gas at the Union Carbide India Limited pesticide plant in Bhopal, India that killed thousands of people. This horrible accident raised concerns in the United States about the chance of a similar accident happening to an unsuspecting community. The possibility of a “Bhopal”-scale accident is remote, but the risks of chemical releases in communities are real. According to the United States Public Interest Research Group and the  National Environmental Law Center, a chemical accident is reported in the United States an average of 21 times a day and one in twenty of these mishaps resulted in immediate injuries, evacuations or deaths.

EPCRA was enacted to deal with this very real concern. In keeping with the philosophy that “forewarned is forearmed,” EPCRA is designed to inform communities about chemicals and chemical hazards present and transported in the community, and to involve the community in developing emergency planning and response to a potential leak of those chemicals.

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