[Federal Register: September 18, 2007 (Volume 72, Number 180)]
[Rules and Regulations]
[Page 53152-53158]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18se07-16]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 761
[EPA-HQ-OPPT-2005-0042; FRL-8143-4]
RIN 2070-AB20
Polychlorinated Biphenyls; Manufacturing (Import) Exemption
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: With certain exceptions, section 6(e)(3) of the Toxic
Substances Control Act (TSCA) bans the manufacture, processing, and
distribution in commerce of polychlorinated biphenyls (PCBs). For
purposes of TSCA, ``manufacture'' is defined to include import into the
Customs Territory of the United States. One of these exceptions is TSCA
section 6(e)(3)(B), which gives EPA authority to grant petitions to
perform these activities for a period of up to 12 months, provided EPA
can make certain findings by rule. On July 21, 2005, the United States
Defense Logistics Agency (DLA), a component of the United States
Department of Defense (DOD), submitted a petition to EPA to import
foreign-manufactured PCBs that DOD currently owns in Japan for disposal
in the United States. In this document, EPA is granting DLA's petition.
This decision to grant the petition allows DLA to manufacture (i.e.,
import) certain PCBs for disposal.
DATES: This final rule is effective January 7, 2008.
ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPPT-2005-0042. All documents in the
docket are listed in the docket index available in regulations.gov. To
access the electronic docket, go to http://www.regulations.gov, select
``Advanced Search,'' then ``Docket Search.'' Insert the docket ID
number where indicated and select the ``Submit'' button. Follow the
instructions on the regulations.gov website to view the docket index or
access available documents. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, will
be publicly available only in hard copy. Publicly available docket
materials are available electronically at http://www.regulations.gov,
or, if only available in hard copy, at the OPPT Docket. The OPPT Docket
is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West
Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public
Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding Federal holidays. The telephone number of the
EPA/DC Public Reading Room is (202) 566-1744, and the telephone number
for the OPPT Docket is (202) 566-0280. Docket visitors are required to
show photographic identification, pass through a metal detector, and
sign the EPA visitor log. All visitor bags are processed through an X-
ray machine and subject to search. Visitors will be provided an EPA/DC
badge that must be visible at all times in the building and returned
upon departure.
FOR FURTHER INFORMATION CONTACT: For general information contact: Colby
Lintner, Regulatory Coordinator, 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: Tom Simons, 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) 566-0517; e-mail
address: simons.tom@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Does this Action Apply to Me?
This action primarily applies to the petitioner, the DLA. However,
you may be potentially affected by this action if you process,
distribute in commerce, or dispose of PCB waste generated by others,
i.e., you are an EPA-permitted PCB waste handler. Potentially affected
categories and entities include, but are not necessarily limited to:
Waste treatment and disposal (NAICS code 5622), e.g.,
facilities that store or dispose of PCB waste.
Materials recovery facilities (NAICS code 56292), e.g.,
facilities that process and/or recycle metals.
Public administration (NAICS code 92), e.g., the
petitioning agency (i.e., the DLA).
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.
II. Background
A. What Action is the Agency Taking?
In the Federal Register of April 30, 2007 (Ref. 1), the Agency
proposed to grant DLA's petition to import PCB waste for disposal. The
Agency received no comments on that proposal. In this final rule, the
Agency is granting a petition submitted by DLA to import PCB waste for
disposal. In the absence of an exemption, import of this waste would be
banned by section 6(e)(3) of TSCA. The petition, dated July 21, 2005,
is for an exemption to import certain foreign-generated PCBs owned by
DOD that are currently in use or storage in Japan. (The term ``foreign-
generated PCBs'' is used to identify those PCBs that DOD acquired from
foreign sources and that are subject to the TSCA ban on import.)
On April 16, 2001, DLA submitted a similar petition to import over
four million pounds of foreign-generated PCB waste. EPA granted that
petition in a final rule document published in the Federal Register of
January 31, 2003 (Ref. 2).
B. What is the Agency's Authority for Taking this Action?
Section 6(e) of TSCA, 15 U.S.C. 2605(e), generally prohibits the
manufacture (which includes import) of PCBs after January 1, 1979, the
processing and distribution in commerce of PCBs after July 1, 1979, and
most uses of PCBs after October 11, 1977. Section 6(e)(3)(A) of TSCA
prohibits the manufacture, processing, and distribution in commerce of
PCBs except for the distribution in commerce of PCBs that were sold for
purposes other than resale before July 1, 1979. Section 6(e)(1) of TSCA
also authorizes EPA to regulate the disposal of PCBs consistent with
the provisions in TSCA section 6(e)(2) and (3).
[[Page 53153]]
Section 6(e)(3)(B) of TSCA provides that any person may petition
the Administrator for an exemption from the prohibition on the
manufacture, processing, and distribution in commerce of PCBs. The
Administrator may by rule grant an exemption if the Administrator finds
that:
i. an unreasonable risk of injury to health or the environment
would not result, and ii. good faith efforts have been made to
develop a chemical substance which does not present an unreasonable
risk of injury to health or the environment and which may be
substituted for such polychlorinated biphenyl. (15 U.S.C.
2605(e)(3)(B)(i)-(ii)).
The Administrator may prescribe terms and conditions for an exemption
and may grant an exemption for a period of not more than 1 year from
the date the petition is granted. In addition, TSCA section 6(e)(4)
requires that a rule under TSCA section 6(e)(3)(B) be promulgated in
accordance with TSCA section 6(c)(2), (3), and (4), which provide for a
proposed rule, the opportunity for an informal public hearing, and a
final rule.
EPA's procedures for rulemaking under TSCA section 6 are found
under 40 CFR part 750. This part includes Subpart B--Interim Procedural
Rules for Manufacturing Exemptions, which describes the required
content for manufacturing exemption petitions and the procedures EPA
follows in rulemaking on these petitions. These rules are codified at
40 CFR 750.10 through 750.21.
III. Findings Necessary to Grant Petitions
A. No Unreasonable Risk Finding
Before granting an exemption petition, TSCA section 6(e)(3)(B)(i)
requires the Administrator to find that granting an exemption would not
result in an unreasonable risk of injury to health or the environment
in the United States. EPA has interpreted this provision to require a
petitioner to demonstrate that the activity will not pose an
unreasonable risk. (See 40 CFR 750.11.)
To determine whether a risk is unreasonable, EPA balances the
probability that harm will occur to health or the environment against
the benefits to society from granting or denying each petition. See
generally, 15 U.S.C. 2605(c)(1). Specifically, EPA considers the
following factors:
1. Effects of PCBs on human health and the environment. In deciding
whether to grant an exemption, EPA considers the magnitude of exposure
and the effects of PCBs on humans and the environment. The following
discussion summarizes EPA's assessment of these factors. A more
complete discussion of these factors is provided in the preamble to the
1988 PCB proposed rule document published in the Federal Register of
August 24, 1988 (Ref. 3).
i. Health effects. EPA has determined that PCBs cause significant
human health effects including cancer, immune system suppression, liver
damage, skin irritation, and endocrine disruption. PCBs exhibit
neurotoxicity as well as reproductive and developmental toxicity. PCBs
are readily absorbed through the skin and are absorbed at even faster
rates when inhaled. Because PCBs are stored in animal fatty tissue,
humans are also exposed to PCBs through ingestion of animal products.
ii. Environmental effects. Certain PCB congeners are among the most
stable chemicals known, and decompose very slowly once they are
released in the environment. PCBs are absorbed and stored in the fatty
tissue of higher organisms as they bioaccumulate up the food chain
through invertebrates, fish, and mammals. Significantly, bioaccumulated
PCBs appear to be even more toxic than those found in the ambient
environment, since the more toxic PCB congeners are more persistent and
thus more likely to be retained. PCBs also have reproductive and other
toxic effects in aquatic organisms, birds, and mammals.
iii. Risks. Toxicity and exposure are the two basic components of
risk. EPA has concluded that any exposure of humans or the environment
to PCBs may be significant, depending on such factors as the quantity
of PCBs involved in the exposure, the likelihood of exposure to humans
and the environment, and the effect of exposure. Minimizing exposure to
PCBs should minimize any eventual risk. EPA has previously determined
that some activities, including the disposal of PCBs in accordance with
40 CFR part 761, pose no unreasonable risks. Other activities, such as
long-term storage of PCB waste, are generally considered by EPA to pose
unreasonable risks.
2. Benefits and costs. The benefits to society of granting an
exemption vary, depending on the activity for which the exemption is
requested. The reasonably ascertainable costs of denying an exemption
vary, depending on the individual petition. As discussed in Unit IV.,
EPA has taken benefits and costs into consideration when evaluating
this exemption petition.
B. Good Faith Efforts Finding
Section 6(e)(3)(B)(ii) of TSCA also requires the Administrator to
find that ``good faith efforts have been made to develop a chemical
substance which does not present an unreasonable risk of injury to
health or the environment and which may be substituted for [PCBs].''
EPA has interpreted this provision to require that a petitioner has the
burden of demonstrating that it has made the requisite good faith
efforts. (40 CFR 750.11) EPA considers several factors in determining
whether good faith efforts have been made. For each petition, EPA
considers the kind of exemption the petitioner is requesting and
whether the petitioner expended time and effort to develop or search
for a substitute. In each case, the burden is on the petitioner to show
specifically what they did to substitute non-PCB material for PCBs or
to show why it was not feasible to substitute non-PCBs for PCBs.
To satisfy this finding for requests for an exemption to import
PCBs for disposal, a petitioner must show why such activity must occur
in the United States and what steps will be taken to eliminate the need
to import PCBs in the future. While requiring a petitioner to
demonstrate that good faith efforts to develop a substitute for PCBs
makes sense when dealing with traditional manufacture and distribution
exemption petitions, the issue of the development of substitute
chemicals seems to have little bearing on whether to grant a petition
for exemption that would allow the import into the United States for
disposal of waste generated by DOD overseas. EPA believes the more
relevant ``good faith'' issue for such an exemption request is whether
the disposal of the waste could and/or should occur outside the United
States.
IV. Final Disposition of This Exemption Petition
A. The Petition: July 21, 2005 Petition to Import PCBs Located in Japan
On July 21, 2005, DLA submitted a petition seeking a 1-year
exemption to import PCBs and PCB items currently in temporary storage
at U.S. military installations in Japan. In revised figures provided in
November 2006 (Ref. 5), DLA estimates that as much as 1,328,482 pounds
of waste contaminated with PCBs could be generated in Japan through the
calendar year 2008. The material in Japan consists of liquids,
electrical transformers, capacitors, switches, circuit breakers, other
miscellaneous items and debris (rags, gaskets, and personal protective
equipment). PCB concentrations of the waste include amounts in all
regulatory concentrations (i.e., 50 parts per million (ppm), 50-499
[[Page 53154]]
ppm, and >500 ppm); however, 88% of the waste is at concentrations
below 50 ppm PCB and less than 5% of the total shipment is liquid PCBs
greater than 50 ppm. Details of the particular amounts and
concentrations DLA petitioned to import are provided in Refs. 4 and 5.
DLA will package and transport, treat and dispose of this PCB waste
in the same manner as waste identified in its previous petitions (Ref.
2), which EPA granted in 2003 to allow the import of over 4,000,000
pounds of waste contaminated with PCBs; DLA notes that compliance is
required with the International Maritime Dangerous Goods Code/
International Maritime Organization, the International Civil Aviation
Organization Technical Instructions, the International Air Transport
Association Dangerous Goods Code, the United Nations Recommendations on
the Transport of Dangerous Goods Code, and 49 CFR parts 100-199. DLA
further notes that proper handling and shipping will include blocking,
bracing, over packing, and inclusion of spill containment devices, as
required by applicable transportation regulations.
DLA states that it will handle and dispose of all PCBs in
conformance with the PCB regulations at 40 CFR part 761. DLA notes that
it has ``considerable experience and expertise in awarding and
administering disposal contracts for PCB waste in the U.S.'' and that
it will only ``award contracts for treatment and disposal services with
commercial firms. Contracts will be awarded in accordance with all
applicable federal procurement statutes and the Federal Acquisition
Regulations (FAR).'' On October 12, 2005, DLA selected Clean Harbors
Environmental Services (CHES) in Coffeyville, Kansas to dispose of the
PCB waste to be removed from Japan. CHES has disposed of PCBs returning
from Japan at the Coffeyville Disposal Facility on four separate
occasions since 2003 without incident. In addition, DLA will use
shippers approved by the United States Department of Transportation
(DOT) when the waste materials are transported from the California port
to the Coffeyville Disposal Facility. The surface commercial transport
trucks and the sea vessels themselves are approved and contracted for
use by the DOD Surface Deployment and Distribution Command.
1. Information regarding no unreasonable risk provided by the
petitioner. DLA notes that the materials in question will be managed in
accordance with all applicable laws and regulations. Once in the United
States, the PCB waste will be transported, handled, treated, and
disposed of in compliance with the PCB regulations at 40 CFR part 761.
DLA states that it will only contract with companies with the required
Federal and State-permitted storage, treatment, and disposal facilities
for dealing with PCBs and PCB items. DLA notes that it and its
contractors ``have extensive experience in safely returning U.S.-
manufactured PCBs and PCB items to the U.S. for disposal,'' and that
``prior to safely returning and disposing of 2.7 million pounds of
foreign-generated PCB containing waste under the previously granted
exemption, DLA returned 2.4 million pounds of U.S.-manufactured PCBs
and PCB Items from Japan since 1991 for compliant disposal without
incident.''
In contrast, DLA notes that the continued storage of PCBs at U.S.
facilities in Japan is problematic. DOD currently has a considerable
amount of PCB waste in storage at its facilities in Japan, and more
will accumulate over the coming years as equipment is retired from use
and contaminated sites are cleaned up. DLA notes that due to the
unavailability of disposal capacity in Japan, much of DLA's foreign-
manufactured PCB waste inventory in Japan has been in storage for years
and movement of PCB waste presently in storage is frequently necessary
to accommodate additional PCBs taken out of service. DLA summarizes the
risks of this situation as follows:
Continued accumulation over extended time periods increases the
risk of exposure to U.S. military personnel, to people living in and
around the U.S. installations where the PCBs are stored, and to the
environment should releases occur due to human error, or unforeseen
severe weather, or seismic events. In addition, storage containers
will deteriorate with time, increasing the likelihood that personnel
who must monitor such items and repack them if they suspect leakage
are exposed to the PCBs. Long-term storage may increase the DOD's
liability for cleanup costs if spills occur. This would increase
exposure to U.S. personnel and local citizens and could potentially
result in ground and water contamination. Each time an item is
handled, another opportunity for a spill or exposure is created. The
storage situation is exacerbated in Japan because the installations
where these materials are located are relatively small, storage
space is at a premium, and the surrounding civilian communities are
located in very close proximity to the stored PCBs. Moreover, the
situation for the DOD is further complicated because of the
perceptions of the local communities regarding PCBs.
DLA further notes that EPA expressed concerns about long-term storage
in the PCB Import for Disposal Rule (Ref. 6):
EPA believes that PCB wastes which are not disposed of for
extended periods of time or which are not disposed of in facilities
providing equivalent protection from release to the environment may
pose an unreasonable risk of injury to health and the environment.
(61 FR 11096)
The same rule also underscored the benefit of prompt disposal in the
United States (Ref. 6):
Based on the persistence of PCBs in the global environment and
EPA's finding that any exposure to human beings or the environment
may be significant, EPA believes that the safe disposal of PCBs in
approved U.S. facilities poses less risk of injury to health or the
environment in the United States than the continued presence of PCBs
in other countries, since proper disposal in this country provides
protection against possible hazards from improper disposal
elsewhere. (61 FR 11096)
Beyond the immediate environmental risk, DLA describes other benefits
to the United States that it believes would result from the granting of
its petition:
In 1968, a tragic human poisoning episode in Western Japan
affected over 1,000 people causing 22 deaths. The ``Yusho'' or
``rice oil disease'' was attributed to the consumption of rice bran
oil contaminated with PCBs and served as a catalyst for current PCB
prohibitions such as those imposed by TSCA, the Stockholm
Convention, and Japanese domestic law. As a result of this highly
publicized incident, Japanese citizens exhibit particular
sensitivity to PCB issues. Delicate U.S.-Japan relations over the
presence and operation of U.S. military installations could be
adversely affected by denial of this petition.
The presence of PCBs on U.S. military bases in Japan has in the
past attracted significant adverse attention from Japanese
politicians, the Japanese press, Japanese environmental groups, and
local citizens. There has been constant local surveillance of U.S.
military PCB storage in Sagamihara and demands for inspections and
sampling for PCBs since at least 1992, when a member of Congress
released a report outlining the storage and presence of PCBs and
other hazardous materials on U.S. bases in Japan. Any perception
that the United States would return to stockpiling and long term
storage of these materials invites unwarranted claims that the U.S.
military is neglecting its environmental responsibilities.
DLA concludes:
Allowing PCB material to remain in storage indefinitely may lead
to degradation of storage containers and releases of PCBs into the
environment from the materials located at temporary or permanent
storage facilities. PCBs released into the environment as a result
of disasters, accidents, container degradation or other events can
present significant exposure risks. This material is currently
stored, or will need to be stored, on crowded DOD facilities in
close proximity to where U.S. military and civilian personnel and
the local community live and work. Since there are no permitted PCB
disposal facilities available to U.S. forces in Japan, and because
of the unique environmental
[[Page 53155]]
conditions in Japan, as noted above, the potential for PCB
contamination via leaks from aging containers or accidental spills
is higher at these locations than at EPA- permitted disposal
facilities in the DOD civilian employees, U.S. military personnel,
and contractors employed by the U.S. Government are at greatest
risk.
2. Information regarding good faith efforts provided by the
petitioner. DLA argues in its petition that disposal of its PCBs in
Japan is not an available disposal option:
As DLA noted in its previous exemption requests, there are
significant impediments to disposal on DOD military installations in
Japan. To be properly processed, PCB materials should be separated
into three streams: 1) metallic components to be decontaminated and
recycled; 2) used oils to be treated/dechlorinated and recycled or
burned for energy recovery; and 3) non-recyclable material to be
treated and disposed of as residual solid wastes. Although certain
portable treatment technologies are becoming available in Japan, the
domestic regulatory standards are very stringent and would require
PCB decontamination levels to be less than 0.5 ppm without dilution
to qualify an item as being non PCB. Complicating the situation
further is that any transfer or sale of property from the U.S.
military installations into Japanese commerce is considered an
``import'' of property. Japan has banned the importation of PCBs at
any detectable concentration including concentrations below the very
stringent 0.5 ppm level at which Japan regulates domestic PCBs. DLA
is not aware of any available technologies that are permitted in
Japan that would treat all PCBs items to the level that PCBs are
completely removed or that could be acquired at a cost that is
economically feasible. Moreover, if such technology were to become
available, it would not resolve the issue of the residual ``non-
recyclable'' waste that would remain or result from the treatment
process. There are no permitted commercial disposal facilities
currently available to the U.S. military for PCB disposal in Japan;
hence, treatment outside of Japan would still be required for the
residual wastes resulting from any ``on-installation'' treatment
process.
DLA further argues that disposal of this waste in another country is
not a viable option. DLA cites its 1999 Report to Congress as
background on the difficulty it faces in finding suitable disposal
alternatives for PCB waste generated by DOD overseas. In particular,
DLA discusses the difficulty of shipping waste from Japan to other
countries posed by the Basel Convention:
Prior to submitting its previous request to EPA for an exemption
from the TSCA PCB import ban, DLA and its primary disposal
contractor made contacts over a period of several years with
Japanese officials and with disposal facilities located outside the
U.S. in an effort to identify firms that could dispose of waste PCB
items overseas while satisfying Basel Convention requirements. The
DOD also consulted with State Department officials in Japan and the
U. S. whose responsibilities included international environmental
matters. These consultations resulted in a consensus that use of
existing facilities in other developed countries was not a
reasonable alternative. Even if other countries would accept these
wastes, non-governmental organizations could be expected to oppose
disposal of its U.S. waste in third countries, principally because
the U. S. already has the technical capability to dispose of PCBs.
DLA concludes that it has made every reasonable effort to locate
appropriate disposal sites outside the United States and that it has
accordingly satisfied the good faith efforts criteria necessary for an
exemption.
B. EPA's Final Decision on the Petition: July 21, 2005 Petition; EPA is
Granting this Petition
1. No unreasonable risk determination. EPA finds generally that the
disposal of imported PCB waste at an EPA-approved PCB disposal facility
poses no unreasonable risks as these facilities have been approved on
the basis of that standard. In addition, the risks to human health and
the environment associated with long-term storage of this waste far
outweigh the risks associated with the transportation of this waste
from Japan to an approved disposal facility in the United States.
As with the previous petition, EPA concurs with DLA's assessment
that transportation of this waste will pose no unreasonable risk if
conducted in accordance with all applicable laws and regulations. EPA
permits the domestic processing and distribution in commerce of PCBs
and PCB items for disposal in compliance with 40 CFR part 761, and in
issuance of the PCB Import for Disposal Rule EPA investigated and
sought comment on the risks inherent in transportation of imported PCB
waste, and determined those risks to be insignificant (Ref. 6). For the
following reasons, EPA finds that there is no unreasonable risk from
the transport of this waste to the United States for disposal:
i. PCBs are hazardous and pose a potential risk to health and the
environment. Proper disposal would reduce PCB-associated risks.
ii. Risk results from a combination of exposure (likelihood,
magnitude and duration) and the probability of effects occurring under
the conditions of exposure. Because the probability of a transport
accident occurring is low, the likelihood of exposure to PCBs is
commensurately low. Consequently, the risk of adverse effects to human
health or the environment is minimal.
iii. The PCB-containing materials will be packaged in a manner
consistent with Federal, State, and local regulations addressing the
storage and transport of hazardous materials. In addition, PCB waste
will be continuously monitored during the water transport from Japan to
the United States. Contingency plans are required by the International
Maritime Dangerous Goods Code and DOT to be in place before and after
the import of PCB-containing items to the United States. Moreover, the
PCB items that will be transported to the United States are not
combustible, which will make the probability of fires low. Together,
these contingency measures will minimize exposure to humans and the
environment in the event of an accident or emergency during ocean
transport.
iv. Given the aforementioned information, the exposure likelihood,
frequency, and duration are so low that even though PCBs are considered
to be highly hazardous, risk (combined exposure and hazard) will not be
unreasonable to human health or the environment.
v. The potential for human health risks are further mitigated by
duration of exposure. PCBs are most hazardous following long-term
(chronic) exposures. Under the transport scenario proposed, any
exposures to humans (i.e., accidental or emergency situation) will be
of very short duration. Hence, the low probability of exposure
occurring combined with the short-term duration of exposure, should one
occur, further supports a qualitative conclusion that there is no
unreasonable risk to human health.
vi. The long-term concern is the potential for accumulation in the
ecological environment. Under a worst case scenario where all of the
PCBs were released due to an unforeseen and highly unlikely
catastrophic event during transport, PCB-exposed biological receptors
could be adversely affected. However, this scenario is highly unlikely
because it would require a complete failure of all safeguards that will
be in place. The DLA analyses indicate that there would be a low
probability of a complete failure. The alternative of storing the PCBs
indefinitely seems to pose more risk than transport. Further, should an
accident occur, emergency response authorities at least within U.S.
waters, would be invoked to mitigate and/or remediate exposures.
2. Good faith efforts to find substitutes met. Section
6(e)(3(B)(ii) of TSCA requires the Administrator to make an
[[Page 53156]]
additional finding, that ``good faith efforts have been made to develop
a chemical substance that does not present an unreasonable risk of
injury to health or the environment and which may be substituted for
such polychlorinated biphenyl.'' EPA has interpreted this provision to
require that a petitioner has the burden of demonstration that it has
made the requisite good faith efforts. (See 40 CFR 750.11.)
EPA believes that DLA has demonstrated good faith efforts to find
alternatives to disposal of this PCB waste in the United States. EPA is
aware of the lack of adequate PCB disposal capacity in Japan. DLA has
explored exporting this waste to other countries as an alternative but
since this is waste owned by the United States, the waste may not be
shipped to other countries in the area because the United States is not
a party to the Basel Convention and does not have bilateral agreements
with countries in the area. EPA also acknowledges the peculiar
circumstances of DOD's PCBs, which, while present in one country, are
owned by another country's government, leading to significant
difficulty in providing Basel Convention notification to third
countries. Given these difficulties, EPA concurs with DLA's conclusion
that disposal in a third country is not a viable alternative for this
waste.
3 . Benefits of granting the petition--i. Avoiding the risks of
long-term storage. EPA believes that granting the petition to import
1,328,482 pounds of waste contaminated with PCBs (88% is less than 50
ppm and less than 5% is liquid PCBs greater than 50 ppm) will benefit
the United States and the environment in general in several ways. As
DLA notes, the continued long-term storage of PCB waste on U.S.
military facilities in Japan poses risks of exposure to U.S. personnel
and the environment--risks that can be eliminated through the action
finalized in the petition.
ii. Ensuring proper and safe disposal. Granting the petition allows
the United States to accept responsibility for the toxic waste it
generates by assuring proper and safe disposal in domestic permitted
disposal facilities.
iii. Ensuring the safety of Japanese citizens. EPA considers the
reduction of risk to Japanese citizens to be advantageous, especially
in light of the heightened concerns over PCBs in that country and the
sensitivities surrounding the U.S. military's presence in Japan.
Granting the petition is the only practical mechanism to remove this
waste from Japan. Otherwise the U.S. military is in the awkward
position of explaining to its Japanese hosts that it cannot remove its
own toxic waste from their country because U.S. law does not allow the
waste to be sent to the United States.
For these reasons EPA finds DLA has satisfied the exemption
criteria of TSCA section 6(e)(3)(B) and is granting the petition.
V. References
1. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import)
Exemption. Proposed Rule. Federal Register (72 FR 21190, April 30,
2007) (FRL-8120-6). Available on-line at http://www.epa.gov/fedrgstr.
2. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import)
Exemptions. Final Rule. OPPT-2002-0013. Federal Register (68 FR 4934,
January 31, 2003) (FRL-7288-6). Available on-line at http://www.epa.gov/fedrgstr
.
3. EPA, Office of Toxic Substances (OTS). Polychlorinated
Biphenyls; Manufacturing, Processing, Distribution in Commerce
Exemptions. Proposed Rule. OPTS-66008F. Federal Register (53 FR 32326,
August 24, 1988).
4. DOD, DLA. Petition from Keith W. Lippert, Vice Admiral, SC, USN,
Director to Stephen L. Johnson, Administrator, EPA. Subject: Petition
to the Administrator, United Sates Environmental Protection Agency, For
an Exemption Under the Toxic Substances Control Act to Import
Polychlorinated Biphenyls (PCB) and PCB Items for Disposal. July 21,
2005. 13 pp. with attachments.
5. DOD, DLA. Electronic mail dated November 2, 2006 from Miriam
Alonso, Hazardous Programs, to Tom Simons, National Program Chemicals
Division, OPPT, EPA. Subject: Updated Petition Data for EPA for
petition submitted July 21, 2005. 2 pp.
6. EPA, OPPT. Disposal of Polychlorinated Biphenyls; Import for
Disposal. Final Rule. Federal Register (61 FR 11096, March 18, 1996)
(FRL-5354-8). Available on-line at http://www.epa.gov/fedrgstr.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), this action is not a
``significant regulatory action'' subject to review by the Office of
Management and Budget (OMB), because this action is not likely to
result in a rule that meets any of the criteria for a ``significant
regulatory action'' provided in section 3(f) of the Executive Order.
B. Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., an agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
This final rule would not impose any new information collection
burden. EPA is proposing to grant the petition by DLA to import PCBs
for disposal. DLA is now subject to the existing EPA regulations
regarding the disposal of PCBs in 40 CFR part 761. OMB has previously
approved the information collection requirements contained in 40 CFR
part 761 under the provisions of PRA, 44 U.S.C. 3501 et seq., and has
assigned OMB control numbers 2070-0003 (EPA ICR No. 1000.06), 2070-0008
(EPA ICR No. 1001.06), 2070-0011 (EPA ICR No. 1012.06), 2070-0021 (EPA
ICR No. 0857.07), 2070-0112 (EPA ICR No. 1446.06), and 2070-0159 (EPA
ICR No. 1729.02). Copies of these ICR documents may be obtained by mail
at the Office of Environmental Information, Collection Strategies
Division (2822), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001, by e-mail at auby.susan@epa.gov
or by calling (202) 566-1672. Copies may also be downloaded from the
Internet at http://www.epa.gov/icr. Include the ICR and/or OMB numbers
in any correspondence.
As defined by PRA and 5 CFR 1230.3(b), ``burden'' means the total
time, effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business
[[Page 53157]]
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq., generally requires an agency to prepare a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements under the Administrative Procedure Act or any other
statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
government jurisdictions.
For purposes of assessing the impacts of this final rule on small
entities, small entity is defined as:
1. A small business that meets the Small Business Administration
size standards codified at 13 CFR 121.201.
2. A small governmental jurisdiction that is a government of a
city, county, town, school district, or special district with a
population of less than 50,000.
3. A small organization that is any not-for-profit enterprise that
is independently owned and operated and is not dominant in its field.
After considering the impacts of this final rule on small entities,
EPA certifies that this action will not have a significant economic
impact on a substantial number of small entities. This final rule will
not impose any requirements on small entities. EPA is granting this
petition by DLA to import PCBs for disposal. Only DLA, which is not a
small entity, is regulated by this final rule.
D. Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
(UMRA), Public Law 104-4, EPA has determined that this final rule does
not contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any one year. EPA is granting a
petition by DLA to import PCBs for disposal. DLA is required to comply
with the existing regulations on PCB disposal at 40 CFR part 761. The
only mandate that is imposed by this final rule is imposed on DLA. In
addition, EPA has determined that this final rule would not
significantly or uniquely affect small governments. The DLA petition
states that the PCBs will be disposed of in PCB-approved facilities. No
new facilities, which could affect small government resources if a
permit is required, are contemplated. EPA believes that the disposal of
PCBs in previously approved facilities in the amounts specified in this
final rule would have little, if any, impact on small governments.
Thus, this final rule is not subject to the requirements of UMRA
sections 202, 203, 204, or 205.
E. Executive Order 13132: Federalism
This action will not have a substantial direct effect on States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government, as specified in Executive Order 13132, entitled
Federalism (64 FR 43255, August 10, 1999).
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled Consultation and Coordination with
Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' This final rule does not have tribal
implications, as specified in Executive Order 13175. EPA's final rule
grants a petition from DLA to import PCBs and dispose of them in PCB-
approved disposal facilities in accordance with existing regulations.
EPA does not believe that this activity will have any impacts on the
communities of Indian tribal governments. Thus, Executive Order 13175
does not apply to this final rule.
G. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to any rule that:
1. Is determined to be ``economically significant'' as defined
under Executive Order 12866.
2. Concerns an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. If
the regulatory action meets both criteria, the Agency must evaluate the
environmental health or safety effects of the planned rule on children,
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This final rule is not subject to the Executive order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. EPA is granting the petition from
DLA to import PCBs and dispose of them in approved PCB disposal
facilities in accordance with existing regulations. EPA believes that
the import and disposal of the amount of PCBs specified in the
exemption petitions will present little, if any, additional risk to
persons living in the vicinity of the approved disposal facilities or
in the communities through which the PCBs may be transported.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
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.
I. The National Technology Transfer and Advancement Act
This action does not involve any technical standards; therefore,
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272 note), does not
apply to this action.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
This action does not entail special considerations of environmental
justice related issues as delineated by Executive Order 12898, entitled
Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations (59 FR 7629, February 16, 1994).
K. Executive Order 12630: Governmental Actions and Interference with
Constitutionally Protected Property Rights
EPA has complied with Executive Order 12630, entitled Governmental
Actions and Interference with Constitutionally Protected Property
Rights (53 FR 8859, March 15, 1988), by examining the takings
implications of this final rule in accordance with the Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings issued under the Executive order.
[[Page 53158]]
L. Executive Order 12988: Civil Justice Reform
In issuing this final rule, EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct, as required by
section 3 of Executive Order 12988, entitled Civil Justice Reform (61
FR 4729, February 7, 1996).
VII. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report 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 States prior to publication of the rule in the Federal Register.
This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).
Lists of Subjects in 40 CFR Part 761
Environmental protection, Hazardous substances, Labeling,
Polychlorinated biphenyls, Reporting and recordkeeping requirements.
Dated: September 10, 2007.
James B. Gulliford,
Assistant Administrator, Office of 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. Section 761.80 is amended by adding a new paragraph (j) to read as
follows:
Sec. 761.80 Manufacturing, processing and distribution in commerce
exemptions.
* * * * *
(j) The Administrator grants the United States Defense Logistics
Agency's July 21, 2005 petition for an exemption for 1 year to import
1,328,482 pounds of PCBs and PCB items stored or in use in Japan as
identified in its petition, as amended, for disposal.
* * * * *
[FR Doc. E7-18345 Filed 9-17-07; 8:45 am]
BILLING CODE 6560-50-S