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 ofProposed Rulemaking.

SUMMARY: On October 30, 1980, the U.S. Court ofAppeals 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) ofthe 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 ofPCBs in electrical equipment, beginning with this Advance Notice of Propbsed Rulemaking, and staying issuance ofthe Court's mandate for a period ofeighteen 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 ofPesticides 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 ofPesticides 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 ofan Order issueCl by the U.S. Court ofAppeals for the District of Columbia Circuit in the case 

### EnvironmentalDefenseFund, Inc. v. 

### EnvironmentalProtectionAgency, 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).ofTSCA prohibits all manufacture, processing, distribution in commerce, and use ofPCBs afterJuly 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 ofPCBs 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 ofPCBs in a manner other than in a "totally enclosed manner" if EPA finds such use "wiU nol present an

,unreasonable risk ofinjury to health or the environment." EPA promulgated regulations under40 CFR Part 761, published in the Federal Register ofMay 31, 1979 (44,FR 31514), to implement section 6(e) ofTSCA. 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 ofsection 6(e) as PCBs in concentrations of50 parts permiUion (ppm) orgreater, 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 ofColumbia Circuit to review three aspects ofthe PCB regulations, including the determination that intact, non-leaking transformers, capacitors, 'and electromagnets are "totally enclosed" and the 50 ppm cutofffor applicability of the regulations 

### (EnvironmentalDefense Fund, Inc. v. 

### EnvironmentalProtection 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 oftransformers, capacitors, and electromagnets as totally enclosed or the Agency's decision "to establish a regulatory cutoff
at fifty ppm." The Court remanded these portions ofthe regulations to EPA for further action. The effect ofthe Court's decision would be to make the

. continued use ofPCB-containing transformers, capacitors, and electromagnets and the continued manufacture, processing, distribution in

commerce, and use ofPCBs below 50
ppm a violation ofsection 6(e) ofTSCA subjecting the persons involved in these activities to possible EPA enforcement actions or citizen suits under section 20 ofTSCA.

On January 21, 1981, EPA, EDF, and certain industry intervenors in

### EDFv. 

### EPA filed a Joint Motion with the Court asking for an eighteen-month stay ofthe Court's mandate with respect to the part ofthe decision which set aside the classification oftransformers, capacitors, and electromagnets as totally enclosed. During the period ofthe stay, EPA would undertake a rulemaking relating to the use ofPCBs 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 ofthe 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 50ppm orgreater and suggested that the Court make these measures a condition ofthe eighteen-month stay. The movants indicated to the Court that the stay would be necessary in order to avoid the adverse impacts ofthe decision. Ifthe mandate issued, persons' who had been adhering to the PCB regulations would have found' themselves in violation ofsection 6(e) of TSCA. Transformers and capacitors are widely used by electric utilities and industry for efficient energy transmission. Sudden cessation oftheir

use would cause substantial dislocation. On February 12, 1981, the Courtgranted the requests ofthe Joint Motion and entered an Order.

The January 21;1981 Joint Motion also requested a stay ofthat portion ofthe 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 ofHeinOnline -- 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 ofonly thirty days. This was because, as ofthe time ofthe Joint Motion, a program for further actionby EPA in response to the 50ppm issue had not been developed. The Court granted this 3O-day stay in its February 12, 1981 Order, and dUring the period ofthe stay, EPA, EDF, and industry representatives developed 8 

### plan which was submitted to the Court in anotherJoint Motion on February 20, 1981. The Court has notyet acted on the February 20, 1981 JointMotion. Ifthe 'Court grants the February 20, 1981 Joint Motion, EPA will publish further notices in the Federal Register discussing the 50 ppm issue. As ofthe present time, the stay with respect to the 50ppm cutoffis still in effect.

II. 

### The Court's February 12, 1981, 

### Order

The text ofthe Court's Order of February 12, 1981 is set forth at the end ofthe "Court Orderon Inspection and Maintenance" appearing in today's Federal Register. The Orderhas a number ofrequirements as follows:

A. StayoftheMandate



### The Court Order stays the mandate of the Courtinsofaras it set aside the classification oftransformers, capacitors, and electromagnets containing PCBs in concentrations of50 

### ppm orgreater as totally encloseduses ofPCBs. This means that the PCB regulations promulgated on May 31, 1979

. regarding this classification (40CFR

761.30) remain in effect for the duration ofthe stay. The terms ofthe stay and the Interim Measures Program are set forth in the "Court Order on Inspection' and Maintenance". Interested persons should read that documentfor a complete discussion.


### B. The EEI/USWAGStudy



### The Court's Order directs EEl, through USWAG. to undertake a factual study of the qsage ofPCBs in equipment used by the electric utility industry, the propensity ofsuch equipment to leak or rupture, and an analysis ofthe feasibility ofvarious measures to reduce

or eliminate the risk ofPCB contamination from such equipment. The details ofthe study are set forth in Appendix A to the Court's Order appearing at the end ofthe "Court Order

on Inspection and Maintenance" Notice.

The study will begin within two months afterFebruary 12. 1981, the date ofthe Order. The study will be completed within nine months after it

commences. However, EPA and EDF

can agree to an extension ofup to three months ifnecessary for completion of the work. Certain portions ofthe study willbe deliveredbefore the end ofthe nine months as set forth inAppendix a to the Court's Order.

C. EPA RulemaJcinglorPCBs in ElectricalEquipment



### The Court's Orderrequires EPA to publish an ANPRrelating to the use of PCBs in electrical equipment. This publication meets thatrequirement. The Order also requires EPA to promulgate a final rule within si.x months ofreceipt of the EEI/USWAG study. The schedule for further rulemaking, includes publication ofa proposedrule within sixty days afterreceipt ofthe EEl/ 

### USWAG study. The proposal will have

a sixty-day commentperiod. At ornear the end ofthe commentperiod a public hearing would be held, ifnecessary. The final rule would be promulgatedwithin sixty days after the end ofthe comment ·period. The Order does not require EPA
to await completion ofthe EEI/USWAG study in order to proceedwith rulemaking. IfEPAbelieves circumstances warrant, it can proceed with rulemaking as to some or all ofthe
matterrelating to PCBs in electrical equipment at any time.


### D. FurtherAction bythe Court



### The Orderprovides that, ifEEl orEPA fails to comply with the Order, any party may apply to the Court for appropriate relief, including immediate issuance ofthe court's mandate. Immediate issuance ofthe mandate wouldplace 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, ifthe EEl 

### study and the requestfor information in this ANPR do
notproduce information sufficient to enable EPA to pursue rulemaking for PCB-containing electrical equipment, it is possible thatEPA oranotherparty would return to the Court seeking a change in the stay and possibly the issuance ofthe qtandate. Accordingly, it is important that persons having an interestin the outcome ofthis rulemaking provide theircomments and the**requeste~** 

### technical iriformation in order to support further rulemaking.

III. 

### Further.Rulemakingby EPA

A. Effects ofthe Court'sDecision



### In light ofthe Court's decision inEDF



### 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 ofPCBs are "totally enclosed". This information could also leadEPA to conclude that these PCB

uses are non-totally enclosed uses which EPA should authorize pursuant to section 6(e)(2)(B) ofTSCA. Detailed factual information will be necessary to supportEPA 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" oron a conclusion that they shouldbe authorized. Without

a convincing factual record to support

one ofthese exceptions, EPA would implement the statutory ban ofsection 6(e) ofTSCA.

Use authorizations for electrical equipmentdetermined not to be "totally enclosed" canbe implemented by promulgatingrules under section 6(e)(2)(B) ofTSCA. To promulgate such rules, EPA wouldhave to determine that the use ofPCBs in 

### such equipment "will
not present an unreasonable risk of injury to health orthe environment." To make this determination, EPA would need to balance the risks against the benefits presentedby these uses of PCBs. Thus, EPAis seeking to develop factual information on the use ofsuch electrical equipment, the propensity of the equipment to rupture orleak, the
nature ofhuman orenvironmental
exposure that mightresult from such leaks orrupture, and the costs of

measures to reduce exposure or eliminate the use ofPCBs in such equipment. Some necessary information will resultfrom 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 ofelectrical 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 othercharacteristics ofPCB· 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 ofutility electrical equipment which contain PCBs.

2. Frequency and magnitude of equipment leaks and ruptures.

3. Feasibility ofvarious programs of containment. inspection, and maintenance ofutility electril;:al equipment which contain PCBs.

4. Feasibility ofphase 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 ofcompliance with
current PCB regulations.

2. The Impact ofcompliance with new regulatory approaches.

3. The health effects ofPCBs. 4. The environmental pathways for PCBs releaned from utility electrICal eqUipment.

5. Viable substitute dielectric fluids for PCBs.

6. Non-electrICal systems which

contamPCBs.

A more detailed outline ofthIS proposed study appears as Appendix A
to the Court's Order m the "Court Order

on Inspection and Mamtenance" Notice.



### C. Requestfor Comments andFurther InformatIOn to SupportRuJemakmg

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 ofa rulemakmg record will begm with pertinent materIal contamed m the records ofpreVIOUS 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 ofsection 6(e) ofTSCA.

EPA mvites public comments and data relevant to determmations as to whether ornot transformers, capacitors, and electromagnets are "totally enclosed" uses ofPCBs. EPA also requests comments relevant to determmations as to whether or not these uses ofPCBs present an unreasonable risk ofmJury to health {)f the environment. Comments should mclude a diSCUSSIOn ofthe rISks from
usmg such eqUipment and possible

means oflimiting those rIsks.

The mformation obtamed from the EEI!USWAG study ofelectrIc utility eqUipment willnot represent all uses of PCBs m electrIcal eqUIpment. The study IS not expected. to contam mformation regarding non-utility mdustry applications oftransformers and capacitors. The mdustry study will not specifically address uses of electromagnets and small capacitors (those contammg less than 1.36 kg (3 lbs) ofdielectrIc 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 ofutility electrIcal eqUipment will not reflect theIr specific

uses ofPCBs m electrical eqUipment should submit mformation relating to the risks and benefits ofthe use ofPCBs

m applications not covered by the EEl! USWAG study. Ifpossible, these
comments should supply mformation SImilar to the d.ata outlined for the EEl! USWAG study. Information about types ofelectrIcal 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. CommentPerIOdandFurther Rulemakmg

The comment perIod for thIS ANPR IS 270 days. ThIS comment perIOd closes shortly before the completion ofthe EEl! USWAG study. EPA has chosen thIS time perIod m order to receIve and analyze the mformation concernmg use ofPCBs m electrICal eqUipment m an

_ orderly manner. The EEI!USWAG study IS scheduled to deliverportions ofthe study durmg the comment perIod. EPA hopes that public comments will be receIved throughout the comment perIod

so that, 

### ifthose comments contam matters that EPA feels would be of
mterest to other submitters ofcomment, EPA would have time to Inform
comment submitters ofthose developments. In addition, timely submISSIon ofthe 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 of PartiCIpation 

### m ThIS Rulemakmg

IfEPA does not develop a factual record whICh mdicates convmcmgly that the use ofPCB-contaInIng electrIcal eqUipment should be permitted,EPA will permit the Court's stay ofmandate
to expire without ISSUIng new rules. Consequently, the prohibitions of section 6(e) ofTSCA would be m effect, and the uses ofPCBs that are now permitted under the eIghteen-month stay would become unlawful.

Dated: March 5. 1981. Edwm H. Clark, 

### n, ActingASSIstantAdmInIstratorforPestiCIdes andTOXICSubstances.

[FR Doc. 81-7509 Filed 3--9-al; 8:45 am)
BIllING CODE 656D-31-M