April 5, 2016
After a six-year delay, the U.S. Environmental Protection Agency (“EPA”) will move in June of 2016 to publish a proposed rule phasing out the use of equipment containing Polychlorinated Biphenyls (PCBs). Although the production of PCBs was phased out in the late 1970s, EPA has permitted the continued use of PCB-containing equipment in certain limited circumstances, subject to heavy regulation.
EPA originally issued an Advanced Notice of Proposed Rule Making (“ANPRM”) in 2010, titled “Polychlorinated Biphenyls; Reassessment of Use Authorizations,” which proposed to further restrict “[t]he use, distribution in commerce, marking, and storage for re-use of PCB-containing electric and non-electric equipment.” In part, EPA is undertaking this proposed new rule-making under the potentially incorrect assumption that most PCB-containing equipment may be nearing the end of its useful life. The soon-to-be proposed rule likely would compel the final phase-out.
The rule will impact a broad spectrum of industries including commercial real estate owners, oil and gas, transportation agencies, research and development laboratories, utility companies, and local, state, and federal governments.
EPA likely will accept comments to the proposed rule for 60-days after it is formally published in the Federal Register, although it may extend the deadline if public comments indicate a need for additional consideration of the proposed rule. The 2010 ANPRM outlined the broad scope of EPA’s proposed regulation of the continued use of PCB-containing equipment, including mandatory testing of all suspected PCB-containing equipment, prohibiting the use of any equipment that contains PCBs in excess of 50 parts per million (ppm) (which would likely include all legacy PCB-containing transformers, even if the equipment was retrofitted previously with non-PCB fluids), and mandatory reporting when PCBs are detected in a pipeline -- regardless of the suspected source of such PCBs. While the final proposed rule has not yet been published, sources within EPA indicate that it will contain these same restrictions, and that EPA will aim to effectively eliminate all uses of PCB-containing equipment, with the final phase-out occurring over the next five to ten years.
The proposed new PCB rule will impose financial and regulatory burdens on owners and operators of PCB-containing (and potential PCB-containing) equipment, requiring costly assessments, sampling, and disposal. If you would like to comment on the proposed rule, or assess whether you or your industry will be affected by it, please contact Post & Schell’s Environmental Practice Group.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Author:
Stephen E. Luttrell is an Associate in the Firm's Environmental Practice Group. He focuses his practice on providing clients with counsel related to environmental diligence, regulatory compliance, and risk management related to real estate and corporate transactions, and facility operations. His clients include private equity funds, real estate investment and management firms, and companies in health care, energy, manufacturing and other heavily regulated industries. Learn More >>