[Federal Register: June 20, 2003 (Volume 68, Number 119)]
[Rules and Regulations]
[Page 36927-36929]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn03-25]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 761
[OPPT-2003-0029; FRL-7314-2]
RIN 2070-AC01
Polychlorinated Biphenyls; Use of Porous Surfaces; Amendment in
Response to Court Decision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is revising the language of the regulations affecting the
use of polychlorinated biphenyls (PCBs) in the Code of Federal
Regulations (CFR) to conform to a court decision vacating an amendment
to these regulations. EPA's 1998 amendments to the PCB disposal
regulations added a use authorization for porous materials contaminated
by spills of liquid PCBs. Due to an editing error, the regulation
referred to a unit of measurement inapplicable to the concentration of
PCBs in liquids. In 1999, EPA issued a final rule correcting a number
of errors in the 1998 action, including the porous surfaces use
authorization. On January 30, 2001, the United States Court of Appeals
for the District of Columbia Circuit (the Court) vacated the portion of
the 1999 amendment which pertained to the porous materials use
authorization. This document revises the CFR to conform to the court
decision, and requires no notice and public comment.
DATES: This final rule is effective on June 20, 2003.
FOR FURTHER INFORMATION CONTACT: For general information contact:
Barbara Cunningham, Director, Environmental Assistance Division
(7408M), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: TSCA-
Hotline@epa.gov. For technical information contact: Sara McGurk, National Program
Chemicals Division (7404T), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number: (202) 566-0480; e-mail
address: mcgurk.sara@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
You may be potentially affected by this action if you manufacture,
process, distribute in commerce, use, or dispose of PCBs or materials
containing PCBs. Potentially affected entities may include, but are not
limited to:
[sbull] Oil and Gas Extraction (NAICS 21111), e.g., Facilities with
surfaces contaminated by PCBs
[sbull] Electric Power Generation, Transmission and Distribution
(NAICS 2211), e.g., Facilities with surfaces contaminated by PCBs
[sbull] Construction (NAICS 23), e.g., Facilities with surfaces
contaminated by PCBs
[sbull] Food Manufacturing (NAICS 311), e.g., Facilities with
surfaces contaminated by PCBs
[sbull] Paper Manufacturing (NAICS 322), e.g., Facilities with
surfaces contaminated by PCBs
[sbull] Petroleum and Coal Products Manufacturing (NAICS 324),
e.g., Facilities with surfaces contaminated by PCBs
[sbull] Chemical Manufacturing (NAICS 325), e.g., Facilities with
surfaces contaminated by PCBs
[sbull] Primary Metal Manufacturing (NAICS 331), e.g., Facilities
with surfaces contaminated by PCBs
[sbull] Rail Transportation (NAICS 48211), e.g., Facilities with
surfaces contaminated by PCBs
[sbull] Lessors of Real Estate (NAICS 5311), e.g., Facilities with
surfaces contaminated by PCBs
[sbull] Waste Treatment and Disposal (NAICS 5622), e.g., Facilities
with surfaces contaminated by PCBs
[sbull] Public Administration (NAICS 92), e.g., Facilities with
surfaces contaminated by PCBs
This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether this action might apply to certain entities. To determine
whether you or your business may be affected by this action, you should
carefully examine the applicability provisions in 40 CFR part 761. If
you have any questions regarding the applicability of this action to a
particular entity, consult the technical person listed under FOR
FURTHER INFORMATION CONTACT.
B. How Can I Get Copies of this Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under docket identification (ID) number OPPT-2003-0029. The
official public docket consists of the documents specifically
referenced in this action, any public comments received, and other
information related to this action. Although a part of the official
docket, the public docket does not include Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. The official public docket is the collection of materials
that is available for public viewing at the EPA Docket Center, Rm.
B102-Reading Room, EPA West, 1301 Constitution Ave., NW., Washington,
DC. The EPA Docket Center is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal holidays. The EPA Docket Center Reading
Room telephone number is (202) 566-1744 and the telephone number for
the OPPT Docket, which is located in EPA Docket Center, is (202) 566-
0280.
2. Electronic access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/. A frequently updated
electronic version of 40 CFR part 761 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr761_00.html
, a
beta site currently under development.
To access information about PCBs, go directly to the PCB Home Page
for the Office of Pollution Prevention and Toxics at http://www.epa.gov/pcb
.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Although not all docket materials may be
available electronically, you may still access any of the publicly
available docket materials through the docket facility identified in
Unit I.B.1. Once in the system, select ``search,'' then key in the
appropriate docket ID number.
II. Background
A. What Action is the Agency Taking?
EPA is amending the regulation at 40 CFR 761.30(p) that governs the
continued use of porous surfaces contaminated by spills of liquid PCBs
to reflect a decision from the Court in
[[Page 36928]]
Utility Solid Waste Activities Group v. EPA, 236 F3d 749 (D.C. Cir.
2001).
B. What is the Agency's Authority for Taking this Action?
The authority for issuing 40 CFR 761.30(p) was section 6(e)(2) of
the Toxic Substances Control Act (TSCA), 15 U.S.C. 2605(e)(2). This
amendment is issued pursuant to a decision of the Court.
Section 6(e) of TSCA, 15 U.S.C. 2605(e), specifically regulates
PCBs. It bans the manufacture, processing, distribution in commerce, or
use of PCBs in other than a ``totally enclosed manner,'' unless the
activity is specifically authorized by EPA through rulemaking. In order
to authorize any of these activities, EPA must make an affirmative
finding that the activity does not pose an unreasonable risk of injury
to health or the environment. Comprehensive regulations addressing the
manufacture, processing, distribution in commerce, use, and disposal of
PCBs were promulgated by EPA in 1979 and codified at 40 CFR part 761.
C. What is the History of this Action?
On December 6, 1994, EPA proposed extensive revisions to the PCB
regulations. Some of the commenters on this proposal asked EPA to
consider including an authorization for the use of porous surfaces that
had been contaminated by old PCB spills. EPA considered the information
submitted by the commenters and decided to include such a use
authorization in the final amendments to the PCB regulations published
in the Federal Register issue of June 29, 1998 (63 FR 35384) (FRL-5726-
1) EPA determined that the continued use of porous surfaces cleaned,
sealed, and marked in accordance with the requirements of 40 CFR
761.30(p) does not pose an unreasonable risk of harm to human health
and the environment.
EPA had intended to apply the cleaning, sealing, and marking
requirements in this new provision of the regulations to use of all
porous surfaces that had been contaminated by spills of liquids
containing PCBs at levels greater than or equal to 50 parts per million
(ppm), regardless of the residual contamination level on the surface of
the material. This is the standard EPA historically has used to trigger
the regulation of PCB disposal. Unfortunately, due to an editing error,
the 1998 version of 40 CFR 761.30(p) referred to a unit of measurement
inapplicable to the concentration of PCBs in liquids. Instead of the 50
ppm standard for this use authorization, the 1998 final rule referred
to ``>10 [mu]g/100 cm\2\.'' Shortly after the 1998 final rule was
published, EPA discovered this and several other errors. EPA posted a
list of the errors and appropriate corrections on its Internet site
and, on June 24, 1999, in the Federal Register (64 FR 33755) (FRL-6072-
4), promulgated these corrections in a final rule without prior notice
and comment.
The Utility Solid Waste Activities Group and others challenged the
1999 amendment to 40 CFR 761.30(p), arguing that EPA had failed to
follow requisite procedures by issuing the amendment without notice and
comment.
D. What is the Basis for this Action?
On January 30, 2001, the Court vacated the correction to 40 CFR
761.30(p). Utility Solid Waste Activities Group v. EPA, 236 F3d 749
(D.C. Cir., 2001) The Court determined that EPA was required to
promulgate the correction through full notice and comment rulemaking
procedures consistent with section 553 of the Administrative Procedures
Act (APA) (5 U.S.C. 553).
Accordingly, EPA is issuing this document to revise the language of
40 CFR 761.30(p) to conform to the Court's decision. The regulation at
40 CFR 761.30(p) will now read as published in 1998. However, EPA
continues to believe that the 1999 amendment of 40 CFR 761.30(p) is the
appropriate approach for the continued use of porous surfaces
contaminated by spills of liquid PCBs. The Agency intends to issue a
proposal in the near future to amend 40 CFR 761.30(p).
III. Statutory and Executive Order Reviews
This action amends 40 CFR part 761 to conform to a decision by the
Court. Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), this action is not a
``significant regulatory action'' and is therefore not subject to
review by the Office of Management and Budget. In addition, this action
does not impose any enforceable duty, contain any unfunded mandate, or
impose any significant or unique impact on small governments as
described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-
4). This action does not involve special consideration of environmental
justice-related issues as required by Executive Order 12898, entitled
Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations (59 FR 7629, February 16, 1994).
Because this action is not subject to notice and comment requirements
under the APA or any other statute, it is not subject to the regulatory
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.). This action also is not subject to Executive Order 13045,
entitled Protection of Children from Environmental Health Risks and
Safety Risks (62 FR 19885, April 23, 1997), because EPA interprets
Executive Order 13045 as applying only to those regulatory actions that
are based on health or safety risks, such that the analysis required
under section 5-501 of the Executive order has the potential to
influence the regulation. This action is not subject to Executive Order
13045 because it does not establish any environmental standards
intended to mitigate health or safety risks. This action does not
involve technical standards and therefore is not subject to section
12(d) of the National Technology Transfer and Advancement Act of 1995,
15 U.S.C. 272 note. This final rule does not have federalism
implications and, therefore, Executive Order 13132, entitled Federalism
(64 FR 43255, August 10, 1999), does not apply. This action does not
involve or impose any requirements that affect Indian Tribes, so the
requirements of Executive Order 13175, entitled Consultation and
Coordination with Indian Tribal Governments (65 FR 62749, November 6,
2000), are not applicable. This final rule is not subject to Executive
Order 13211, entitled Actions Concerning Regulations That Significantly
Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001),
because it is not a significant regulatory action under Executive Order
12866. Finally, this action is not subject to the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., because it does not impose any monitoring,
reporting, or recordkeeping requirements. EPA's compliance with the
statutes and Executive orders for the underlying Disposal Amendments
rule is discussed in the June 29, 1998, Federal Register (63 FR 35384).
IV. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the Agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and the Comptroller General of the United
States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United
[[Page 36929]]
States prior to publication of the rule in the Federal Register. This
rule conforms 40 CFR part 761 to a decision by the Court and is not a
``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 761
Environmental protection, Hazardous substances, Labeling,
Polychlorinated biphenyls (PCBs), Reporting and recordkeeping
requirements.
Dated: June 13, 2003.
Stephen L. Johnson,
Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
0
Therefore, 40 CFR chapter I is amended as follows:
PART 761--[AMENDED]
0
1. The authority citation for part 761 continues to read as follows:
Authority: 15 U.S.C. 2605, 2607, 2611, 2614, and 2616.
0
2. Amend Sec. 761.30(p)(1) by revising the introductory text to read
as follows:
Sec. 761.30 Authorizations.
* * * * *
(p) * * *
(1) Any person may use porous surfaces contaminated by spills of
liquid PCBs at concentrations >10 [mu]g/100 cm\2\ for the remainder of
the useful life of the surfaces and subsurface material if the
following conditions are met:
* * * * *
[FR Doc. 03-15668 Filed 6-19-03; 8:45 am]
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