HeinOnline -- 46 Fed. Reg. 16096 1981

16096 Federal Register I Vol. 46, No. 46 I Tuesday, March 10, 1981 I Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 761

[TS FRL 1773-2; OPT5-62015]

Polychlorinated Biphenyls (PCBs); Use

in Electrical Equipment

AGENCY: Environmental Protection

Agency (EPA).

.ACTION: Advance Notice of Proposed

Rulemaking.

SUMMARY: On October 30, 1980, the U.S.

Court of Appeals for the District of

Columbia Circuit ruled, in relevant part,

that regulations issued by EPA which

characterized intact, non-leaking

transformers, capacitors, and

electromagnets containing

polychlorinated biphenyls (PCBs) as

"totally enclosed" for purposes of

section 6(e) of the Toxic Substances

Control Act were unsupported by the

rulemaking record and remanded the

regulations to EPA for further

consideration. In response to a motion

by EPA and certain other parties to the

case, the Court issued an Order on

February 12, 1981 requiring EPA to

undertake rulemaking concerning the

use of PCBs in electrical equipment,

beginning with this Advance Notice of

Propbsed Rulemaking, and staying

issuance of the Court's mandate for a

period of eighteen months during which

time EPA will implement rulemaking

activities.

DATES: Comments upon the issues

raised in this Notice must be submitted

by December 7, 1981.

ADDRESSES: All comments should be

sent to: Document Control Officer (T8-

793), Office of Pesticides and Toxic

Substances, Environmental Protection

Agency, Rm. E-401, 401 M St., SW.,

Washington, D.C. 20460. Comments,

preferably in triplicate, should include

the docket number OPT8-62015.

Comments received on this Notice will

be available for reviewing and copying

from 8:00 a.m. to 4:00 p.m., Monday

through Friday, excluding holidays, in

Room 107 East Tower, EPA

Headquarters, 401 M St. SW.,

Washington, D.C.

FOR FURTHER INFORMATION CONTACT:

John B. Ritch, Jr., Industry Assistance

Office (T8-799), Office of Pesticides and

Toxic Substances, Environmental

Protection Agency, 401 M St. SW.,

Washington, D.C. 20460, Toll free: (800-

424-9065), In Washington, D.C. (554-

1404).

SUPPLEMENTARY INFORMATION:

Appearing in today's Federal Register,

rmmediately preceding this document is

a Notice entitled "Polychlorinated

Biphenyls; Use in Electrical Equipment;

Court Order on Inspection and

Maintenance" which discusses the

impact of an Order issueCl by the U.S.

Court of Appeals for the District of

Columbia Circuit in the case

Environmental Defense Fund, Inc. v.

Environmental Protection Agency, No.

79-1580. That Notice should be read

before reading this Advance Notice of

Proposed Rulemaking (ANPR) in order

to better understand the issues

discussed in this ANPR as well as Ihe

interim requirements placed upon

persons who own or use PCB-containing

transformers, capacitors, and

electromagnets.

I. Background

As discussed in the "Court Order on

Inspection and Maintenance," section

6(e). of TSCA prohibits all manufacture,

processing, distribution in commerce,

and use of PCBs after July 1, 1979. This

statute sets forth only limited exceptions

to Ihis broad prohibition. Section 6(e)(2)

provides that EPA may allow the

continued use of PCBs in'a "totally

enclosed manner". A "totally enclosed

manner" is defineq to be "any manner

which will ensure that any exposure of

human beings or the environment to a

polychlorinated biphenyl wiU be

insignificant as determined by the

Administrator by rule." Section 6(e)(2)

also allows EPA to authorize by rule the

continued use of PCBs in a manner other

than in a "totally enclosed manner" if

EPA finds such use "wiU nol present an

, unreasonable risk of injury to health or

the environment." EPA promulgated

regulations under 40 CFR Part 761,

published in the Federal Register of May

31, 1979 (44 ,FR 31514), to implement

section 6(e) of TSCA. The regulations

designated all intact, non-leaking

electrical capacitors, electromagnets, -

and transformers as "totally enclosed",

thus permitting their continued use

without regulation. The regulations also

defined "PCB" for purposes of section

6(e) as PCBs in concentrations of 50

parts per miUion (ppm) or greater, thus

excluding manufacturing, processing,

distribution in commerce, and use of

PCBs in concentrations below 50 ppm

from regulation.

The Environmental Defense Fund

(EDF) petitioned the U.S. Court of

Appeals for the District of Columbia

Circuit to review three aspects of the

PCB regulations, including the

determination that intact, non-leaking

transformers, capacitors, 'and

electromagnets are "totally enclosed"

and the 50 ppm cutoff for applicability of

the regulations (Environmental Defense

Fund, Inc. v. Environmental Protection

Agency, No. 79-1580). In an October 30,

1980 decision in the case the Court

found that there was "no substantial'

evidence in the record to support" the

Agency's classification of transformers,

capacitors, and electromagnets as

totally enclosed or the Agency's

decision "to establish a regulatory cutoff

at fifty ppm." The Court remanded these

portions of the regulations to EPA for

further action. The effect of the Court's

decision would be to make the .

continued use of PCB-containing

transformers, capacitors, and

electromagnets and the continued

manufacture, processing, distribution in

commerce, and use of PCBs below 50

ppm a violation of section 6(e) of TSCA

subjecting the persons involved in these

activities to possible EPA enforcement

actions or citizen suits under section 20

of TSCA.

On January 21, 1981, EPA, EDF, and

certain industry intervenors in EDF v.

EPA filed a Joint Motion with the Court

asking for an eighteen-month stay of the

Court's mandate with respect to the part

of the decision which set aside the

classification of transformers,

capacitors, and electromagnets as

totally enclosed. During the period of the

stay, EPA would undertake a

rulemaking relating to the use of PCBs in

electrical equipment beginning with an

ANPR. In addition, the Edison Electric

Institute (EEl) through the Utility Solid

Waste Activities Group (USWAG)

would undertake the development of

some of the factual material necessary

for further rulemaking. In addition, the

movants agreed on certain interim, riskreduction measures that could be taken .

with respect to transformers containing

PCBs at 50 ppm or greater and suggested

that the Court make these measures a

condition of the eighteen-month stay.

The movants indicated to the Court that

the stay would be necessary in order to

avoid the adverse impacts of the

decision. If the mandate issued, persons'

who had been adhering to the PCB

regulations would have found'

themselves in violation of section 6(e) of

TSCA. Transformers and capacitors are

widely used by electric utilities and

industry for efficient energy

transmission. Sudden cessation of their

use would cause substantial dislocation.

On February 12, 1981, the Court granted

the requests of the Joint Motion and

entered an Order.

The January 21;1981 Joint Motion also

requested a stay of that portion of the

decision which set aside the 50 ppm

regulatory ·cutoff. For the use of

transformers, capacitors, and

electromagnets with PCBs below 50

ppm, the stay would be eighteen months.

For all other manufacturing, processing,

distribution in commerce, and use of
HeinOnline -- 46 Fed. Reg. 16097 1981

Federal Register I Vol. 46, No. 46 I Tuesday, March 10, 1981 I Proposed Rules 16097

PCBs below 50 ppm the January 21, 1981

Joint Motion requested a stay of only

thirty days. This was because, as of the

time of the Joint Motion, a program for

further action by EPA in response to the

50 ppm issue had not been developed.

The Court granted this 3O-day stay in its

February 12, 1981 Order, and dUring the

period of the stay, EPA, EDF, and

industry representatives developed 8

plan which was submitted to the Court

in another Joint Motion on February 20,

1981. The Court has not yet acted on the

February 20, 1981 Joint Motion. If the

'Court grants the February 20, 1981 Joint

Motion, EPA will publish further notices

in the Federal Register discussing the 50

ppm issue. As of the present time, the

stay with respect to the 50 ppm cutoff is

still in effect.

II. The Court's February 12, 1981, Order

The text of the Court's Order of

February 12, 1981 is set forth at the end

of the "Court Order on Inspection and

Maintenance" appearing in today's

Federal Register. The Order has a

number of requirements as follows:

A. Stay ofthe Mandate

The Court Order stays the mandate of

the Court insofar as it set aside the

classification of transformers,

capacitors, and electromagnets

containing PCBs in concentrations of 50

ppm or greater as totally enclosed uses

of PCBs. This means that the PCB

regulations promulgated on May 31, 1979

. regarding this classification (40CFR

761.30) remain in effect for the duration

of the stay. The terms of the stay and

the Interim Measures Program are set

forth in the "Court Order on Inspection'

and Maintenance". Interested persons

should read that document for a

complete discussion.

B. The EEI/USWAG Study

The Court's Order directs EEl, through

USWAG. to undertake a factual study of

the qsage of PCBs in equipment used by

the electric utility industry, the

propensity of such equipment to leak or

rupture, and an analysis of the

feasibility of various measures to reduce

or eliminate the risk of PCB

contamination from such equipment.

The details of the study are set forth in

Appendix A to the Court's Order

appearing at the end of the "Court Order

on Inspection and Maintenance" Notice.

The study will begin within two

months after February 12. 1981, the date

of the Order. The study will be

completed within nine months after it

commences. However, EPA and EDF

can agree to an extension of up to three

months if necessary for completion of

the work. Certain portions of the study

will be delivered before the end of the

nine months as set forth in Appendix a

to the Court's Order.

C. EPA RulemaJcinglor PCBs in

Electrical Equipment

The Court's Order requires EPA to

publish an ANPR relating to the use of

PCBs in electrical equipment. This

publication meets that requirement. The

Order also requires EPA to promulgate a

final rule within si.x months of receipt of

the EEI/USWAG study. The schedule

for further rulemaking, includes

publication of a proposed rule within

sixty days after receipt of the EEl/

USWAG study. The proposal will have

a sixty-day comment period. At or near

the end of the comment period a public

hearing would be held, if necessary. The

final rule would be promulgated within

sixty days after the end of the comment

·period. The Order does not require EPA

to await completion of the EEI/USWAG

study in order to proceed with

rulemaking. IfEPA believes

circumstances warrant, it can proceed

with rulemaking as to some or all of the

matter relating to PCBs in electrical

equipment at any time.

D. Further Action by the Court

The Order provides that, if EEl or EPA

fails to comply with the Order, any

party may apply to the Court for

appropriate relief, including immediate

issuance of the court's mandate.

Immediate issuance of the mandate

would place most owners and users of

PCB-containing transformers, capacitors

and electromagnets in violation of

section 6(e) ofTSCA. EPA does not

anticipate that this circumstance will

occur. However, if the EEl study and the

request for information in this ANPR do

not produce information sufficient to

enable EPA to pursue rulemaking for

PCB-containing electrical equipment, it

is possible that EPA or another party

would return to the Court seeking a

change in the stay and possibly the

issuance of the qtandate. Accordingly, it

is important that persons having an

interest in the outcome of this

rulemaking provide their comments and

the requeste~ technical iriformation in

order to support further rulemaking.

III. Further.Rulemaking by EPA

A. Effects ofthe Court's Decision

In light of the Court's decision in EDF

v. EPA, EPA will be compiling a factual

record to support further rulemaking

with respect to transformers, capacitors,

electromagnets and other electrical

equipment containing PCBs. Information

gathered during the rulemaking could

lead EPA to conclude that some or all of

these uses of PCBs are "totally

enclosed". This information could also

lead EPA to conclude that these PCB

uses are non-totally enclosed uses

which EPA should authorize pursuant to

section 6(e)(2)(B) of TSCA. Detailed

factual information will be necessary to

support EPA decisions to make

exceptions to section 6(e)'s prohibition

with respect to the continued use of

PCBs, whether the exceptions are based

on a conclusion that certain uses are

"totally enclosed" or on a conclusion

that they should be authorized. Without

a convincing factual record to support

one of these exceptions, EPA would

implement the statutory ban ofsection

6(e) ofTSCA.

Use authorizations for electrical

equipment determined not to be "totally

enclosed" can be implemented by

promulgating rules under section

6(e)(2)(B) ofTSCA. To promulgate such

rules, EPA would have to determine that

the use of PCBs in such equipment "will

not present an unreasonable risk of

injury to health or the environment." To

make this determination, EPA would

need to balance the risks against the

benefits presented by these uses of

PCBs. Thus, EPA is seeking to develop

factual information on the use of such

electrical equipment, the propensity of

the equipment to rupture or leak, the

nature of human or environmental

exposure that might result from such

leaks or rupture, and the costs of

measures to reduce exposure or

eliminate the use of PCBs in such

equipment. Some necessary information

will result from the EEI/USWAG study.

However, a great deal more will be

necessary, especially in those areas

where the EEI/USWAG study will not

be producing any information, such as

non-utility use of electrical equipment

containing PCBs.

B. Information Development

As set forth in Appendix A to the

Order, EEI/USWAG is conducting a

study to provide information on the use

and other characteristics of PCB·

containing electrical equipment in the

utility industry. EPA hopes that this will

provide a broad, useful data base. The

EEI/USWAG study is required to supply

data on the:

1. Types of utility electrical equipment

which contain PCBs.

2. Frequency and magnitude of

equipment leaks and ruptures.

3. Feasibility of various programs of

containment. inspection, and

maintenance of utility electril;:al

equipment which contain PCBs.

4. Feasibility of phase out for electric

utility transformers and capacitors.
HeinOnline -- 46 Fed. Reg. 16098 1981

16098 Federal Register I Vol. 46, No. 46 I Tuesday, March 10, 1981 I Proposed Rules

The study will also provide

mformation on:

1. The Impact of compliance with

current PCB regulations.

2. The Impact of compliance with new

regulatory approaches.

3. The health effects of PCBs.

4. The environmental pathways for

PCBs releaned from utility electrICal

eqUipment.

5. Viable substitute dielectric fluids

for PCBs.

6. Non-electrICal systems which

contam PCBs.

A more detailed outline of thIS

proposed study appears as Appendix A

to the Court's Order m the "Court Order

on Inspection and Mamtenance" Notice.

C. Request for Comments and Further

InformatIOn to Support RuJemakmg

Before developmg new regulations

which mIght permit the continued use of

PCBs m electrIcal eqUIpment, EPA must

build a substantial factual rulemakmg

record. ThIS record must document the

facts concernmg PCB use m electrIcal

eqUipment, mcluding transformers,

capacitors, and electromagnets.

Development of a rulemakmg record

will begm with pertinent materIal

contamed m the records of preVIOUS PCB

rulemakmgs. Additional mformation for

the rulemakmg record must come from

public comments regarding

transformers, capacitors,

electromagnets, and other electrIcal

eqUipment contammg PCBs, as well as

from the EEI!USWAG study regarding

electrIC utility eqUipment whIch contam

PCBs. Without such Information the

Agency cannot sustam granting

exceptions to the prohibitions of section

6(e) of TSCA.

EPA mvites public comments and

data relevant to determmations as to

whether or not transformers, capacitors,

and electromagnets are "totally

enclosed" uses of PCBs. EPA also

requests comments relevant to

determmations as to whether or not

these uses of PCBs present an

unreasonable risk of mJury to health {)f

the environment. Comments should

mclude a diSCUSSIOn of the rISks from

usmg such eqUipment and possible

means of limiting those rIsks.

The mformation obtamed from the

EEI!USWAG study of electrIc utility

eqUipment will not represent all uses of

PCBs m electrIcal eqUIpment. The study

IS not expected. to contam mformation

regarding non-utility mdustry

applications of transformers and

capacitors. The mdustry study will not

specifically address uses of

electromagnets and small capacitors

(those contammg less than 1.36 kg (3

lbs) of dielectrIc flUid), whICh are

normally found m electrOnIC CIrcuitry,

fluorescent light ballasts, lugh mtensity

discharge lighting fixtures. and motor

control cIrcuitry throughout mdustrIal,

commerCIal, and reSIdential sectors.

Therefore, persons who believe the

EEI!USWAG study of utility electrIcal

eqUipment will not reflect theIr specific

uses of PCBs m electrical eqUipment

should submit mformation relating to

the risks and benefits of the use of PCBs

m applications not covered by the EEl!

USWAG study. If possible, these

comments should supply mformation

SImilar to the d.ata outlined for the EEl!

USWAG study. Information about types

of electrIcal eqUipment whICh contam

PSCs; leakage rates and magnitudes;

contamment, mspection, and

mamtenance alternatives; and phase out

feasibilities are espeCIally Important,

mcluding recommendations or

suggestions for regulating PCBs In

varIOUS eqUipment and applications.

D. Comment PerIOd and Further

Rulemakmg

The comment perIod for thIS ANPR IS

270 days. ThIS comment perIOd closes

shortly before the completion of the EEl!

USWAG study. EPA has chosen thIS

time perIod m order to receIve and

analyze the mformation concernmg use of PCBs m electrICal eqUipment m an _

orderly manner. The EEI!USWAG study

IS scheduled to deliver portions of the

study durmg the comment perIod. EPA

hopes that public comments will be

receIved throughout the comment perIod

so that, if those comments contam

matters that EPA feels would be of

mterest to other submitters of comment,

EPA would have time to Inform

comment submitters of those

developments. In addition, timely

submISSIon of the comments will

facilitate EPA meeting the CourtOrdered, eIghteen-month deadline for

final rules.

EPA will conSIder the need for public

meetings durmg the rulemakmg process

and will entertam r~quests for such

meetingsJrom mterestedpersons.

E. Importance ofPartiCIpation m ThIS

Rulemakmg

IfEPA does not develop a factual

record whICh mdicates convmcmgly that

the use of PCB-contaInIng electrIcal

eqUipment should be permitted,EPA

will permit the Court's stay of mandate

to expire without ISSUIng new rules.

Consequently, the prohibitions of

section 6(e) of TSCA would be m effect,

and the uses of PCBs that are now

permitted under the eIghteen-month stay

would become unlawful.

Dated: March 5. 1981.

Edwm H. Clark, n,

Acting ASSIstantAdmInIstratorforPestiCIdes

and TOXIC Substances.

[FR Doc. 81-7509 Filed 3--9-al; 8:45 am)

BIllING CODE 656D-31-M