On March 10, 2022, the Vermont Department of Environmental Conservation (“DEC”) published new draft technical guidance addressing polychlorinated biphenyls (“PCBs”) that are contained within building materials located in non-school buildings. DEC previously published separate guidance for PCBs in schools in February 2022.
The new draft guidance implements a 2021 legislative change to the waste management statute that changed the definition of a “release” to include the “spilling, leaking, emission, or disposal of PCBs from building materials.” See 10 V.S.A. § 1283(g)(3) and 10 V.S.A. § 6602(17). While concerns surrounding PCBs found in Vermont schools in 2020 precipitated this change in Vermont law, the change applies broadly to all other buildings. DEC’s draft guidance implementing this statutory change pertains to all non-school buildings in Vermont that were built or remodeled before 1980—the period when PCBs were commonly used in building materials. As such, the requirements in the guidance would impact a multitude of owners of pre-1980 properties, and transactions involving these properties.
Among other things, the draft guidance sets the new regulatory “action” level for PCBs at 22.5 nanograms per cubic meter (ng/m3), provides standards for preparing an inventory of PCB-containing materials and sampling indoor air for PCBs, and describes how properties participating in Vermont’s Brownfields Reuse and Environmental Liability Limitation (“BRELLA”) program must comply with these new requirements. For BRELLA participants, the draft guidance provides that the presence or possible presence of PCB-containing materials should be identified as a “Business Environmental Risk” in Phase I Environmental Site Assessment reports for pre-1980 buildings. As a result of this guidance, environmental due diligence for real estate transactions involving pre-1980 buildings in Vermont likely will require indoor investigation and air sampling for PCBs. This could impact financing and redevelopment plans, and present new liability risks for existing property owners. Pre-1980 buildings that are currently in the BRELLA program but have not yet received a Certificate of Completion (“COC”) would also require indoor PCB testing prior to receiving a COC under the draft guidance.
The statutory changes to the waste management statute and DEC’s new implementing guidance could have a substantial impact on the use, sale, re-development, and re-use of any pre-1980 non-school buildings in Vermont. The deadline for comments on DEC’s draft guidance is March 27, 2022, and a public hearing to discuss the guidance is scheduled for April 4, 2022.
If you have any questions, please contact the following SRH Law attorneys: Brian Dunkiel, Andy Raubvogel, Geoffrey Hand, or Paul Quackenbush at (802) 860-1003.
