The ABCs of PCBs: What You Need to Know About PCBs in School Buildings

For years, school officials planning renovation or demolition projects worried about the discovery of asbestos within a school building. However, recent studies by the federal Environmental Protection Agency show that educational leaders should also be concerned about the possible presence of PCBs.

PCBs, or polychlorinated biphenyls, are a group of man-made chemicals. Until the late 1970s, they were used in a variety of building materials because they are heat- and fire-resistant. When added to caulk, PCBs also made that universal sealant softer and more pliable.

PCBs are a health concern because they may cause cancer or affect the body’s immune, hormone, nervous or enzyme systems. Consequently, in 1978 Congress passed the Toxic Substances Control Act (TSCA). Together with related federal regulations, TSCA establishes protocols for managing, remediating and disposing of PCBs and PCB-containing building materials.

Generally, building materials such as caulk with PCB levels over 50 parts per million (“ppm”) must be disposed of at a special facility. Other building materials touching PCB-containing caulk must also be tested. If those materials have PCB levels over 1 ppm, TSCA requires building owners to also remove and dispose of them.

Therefore, school officials considering the renovation or demolition of a facility built between 1950 and 1978 must consider the potential impact of PCB testing and remediation. This work could require removing a significant amount of building material, increasing a project’s cost and extending its schedule.

Predictably, PCBs’ presence in schools has prompted lawsuits. The first such case appears to be Yorktown Central School District v. Monsanto. Although it settled in June 2009, this case reflects the type of lawsuit that may proliferate as communities increasingly focus on PCBs in schools.

In Yorktown, a New York school district claimed that chemical manufacturers and suppliers should reimburse its PCB remediation costs. The district also asked the court to order the defendants to defend and pay any judgment entered against the district in any lawsuits brought by employees or students because of PCBs.

In November 2009, the court dismissed three of the district’s claims, but allowed it to pursue several others. The June 2009 settlement’s terms are confidential.

School leaders must also anticipate the possible need to defend lawsuits by staff and students concerning PCBs. These claims might allege harm from contact with PCBs leaching through building components or from a release of PCBs during school renovation projects.

TSCA expressly authorizes individual citizens to bring such lawsuits. These claims could include demands that school officials test for or remediate PCBcontaminated materials. For example, in Gonzalez v. New York City Department of Education, a parent used TSCA to sue the New York City’s education department and school construction authority. She demanded that the city remediate PCBs discovered in caulk inside her children’s school. She withdrew her claims in early 2010 after the defendants agreed to a citywide testing and remediation program. Like the Yorktown case, however, this lawsuit is likely the first of many so-called private enforcement claims to come. School leaders must therefore be proactive in addressing both the underlying issue of possible PCBs within school buildings and anticipating related litigation.

Kevin W. Miller, Ph.D. is President of Fuss & O’Neill EnviroScience, LLC. He can be reached at kmiller@FandO.com. Derek Mogck is an attorney at Shipman & Goodwin, LLP. He can be reached at dmogck@goodwin.com.

Used with permission of CABE. November 2010 Issue of the CABE Journal.