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Monday

March 18, 1996

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Environmental

Protection Agency

Part IV

40 CFR Parts 9 and 761

Disposal of Polychlorinated Biphenyls;

Import for Disposal; Final Rule

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40 CFR Parts 9 and 161

ENVIRONMENTAL PROTECTION

AGENCY

In [estahlishing the open border policy],

EPA has reviewed whether the regulation of

imported and exported PCB wastes for

disposal should be accomplished under

section 6(e)(1) of TSCAor under section

6(e)(3). While section 6(e)(3)(A)(i) could be

read to allow regulation of the import of PCB

wastes for disposal, section 6(e) treats PCB

disposal as a separate matter under section

6(e)(1), which allows comprehensive

regulation of the disposal of PCBs.

Accordingly,EPA has elected to regulate

import and export of PCB waste for disposal

under section 6(e)(1). (44 FR31514-31516;

May 31,1979.)

After the border was closed in 1980,

EPA relied on its authority under

section 6(e)(3) in accepting and

considering exemption petitions for

specific transboundary shipments of

PCB waste at concentrations of 50 ppm

or greater. Such exemptions were rarely

granted.

Under its section 6(e)(l) authority,

EPA is implementing in this rule a

broad-based approach to import for

disposal that EPA believes carries out

Congress' intent that EPA take action to

prevent unreasonable risks of injury to

health and the environment in the

United States from PCBs.

Under section 6(e)(l) EPA has

promulgated a series of disposal

regulations which support a consistent

course of action to promptly dispose of

regulated PCBs in a manner which

limits releases to the environment to the

best levels achievable by technology at

the time the regulations were

promulgated. Section 761.65 requires

disposal of PCBs within 1 year of the

time the PCBs are designated a waste.

Part 761, subpart D prescribes standards

which are used for issuing disposal

approvals. 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. Therefore, EPA believes

today's rule which allows foreign

generated PCB wastes to be disposed of

in a prompt and safe manner in the

United States is consistent with the

requirements it has promulgated for

storage and disposal of domestically

generated PCB wastes. Under TSCA

section G(e). EPA makes decisions using

the concept of "unreasonable risk." This

includes the consideration of the risks

of harm to health.or the environment in

the United States and of the costs of

regulation in the United States. EPA

does not consider risks that occur

outside the United States except to the

extent thoso risks may result in risks in

tho United States, nnd EPA does not

r.ousi der of regulation to

No. 53 I Monday, March 18, 1996 I Rules and Regulations

I. Overview of Rulemaking

A. Purpose ofthis Final Rule

In the Federal Register of December 6,

1994 (59 FR 62788), EPA issued a notice

of proposed rulernaking to amend the

polychlorinated biphenyl (PCB) rules at

40 CFR part 761, promulgated under

section 6(e) of the Toxic Substances

Control Act (TSCA). Comprehensive

changes were proposed for the PCB

regulations which included, among

other things, the requirements for

determining PCB concentration;

marking, storage and disposal;

decontamination levels and procedures;

reporting and recordkeeping

requirements; and use authorizations. In

addition. EPA proposed to allow the

import and export of PCBs for disposal

at concentrations of 50 ppm or greater

under certain circumstances. Comments

were specifically solicited on retaining

the prohibitions on transboundary

shipments of PCB waste for purposes of

disposal, on removing the prohibitions,

and on specific regulatory language

proposed at § 761.20(b) and (c) that

would allow import and export of PCB

waste under certain circumstances with

appropriate administrative controls (see

59 FR 62816-62818).

On June 6 and 7. 1995, EPA held a

public hearing on the proposed PCB

Disposal Amendments, including the

proposed import provision. in .

Arlington. Virginia. A transcript of that

hearing was placed in the public record.

In response to considerable public

interest in the proposal to allow

importation of PCBs for disposal, EPA

has expedited its final action on the

portion ofthe PCB Disposal

Amendments addressing import, and is

promulgating these provisions in

today's final rule. The other regulatory

changes proposed in the PCB Disposal

Amendments, including those relating

to export for disposal at concentrations

of 50 ppm or greater and other

transboundary shipments of PCB waste,

will be addressed in a separate Federal

Register notice at a later date.

-B. Statutory Authority

This final rule is issued pursuant to

section 6(e)(1) of TSCA Section 6(e)(1)

ofTSCA gives EPA the authority to

promulgate rules to prescribe methods

for the disposal of PCBs (15 U.S.C

2G05(e)(l)).

When EPA adopted a year-long open

border policy in 1979, it explained that.

while the Agency has concurrent

authority to regulate import of PCB

waste for disposal under both section

G(e)(1) and section G(o)(3), it

so under tho authority of section G(e)(l)

Federal

SUMMARY: On December 6,1994, EPA

proposed to allow the import and export

of Polychlorinated Bi phenyls (PCBs) for

disposal at concentrations of 50 parts

per million (ppm) or greater under

certain circumstances. This final rule

promulgates regulations at 40 CFR part

761, subpart F to permit the import of

PCBs for disposal at concentrations of

50 ppm or greater. Today's rule

continues to allow the import and

export of PCBs for disposal at

concentrations less than 50 ppm. Those

portions ofthe December 6,1994,

proposed rule addressing other issues,

including export of PCBs for disposal at

concentrations of 50 ppm or greater and

other transboundary shipments of PCB

waste, will be addressed in a separate

Federal Register notice at a later date.

This rule will provide for the sensible

management of PCB waste imports,

consistent with hazardous waste import

regulations, and the United States'

obligations under international

agreements. This rule will benefit the

United States by facilitating the safe

removal of PCBs from areas near the

United States' borders, as well as the

world environment in general, and this

rule will produce economic benefits for

the United States.

DATES: In accordance with 40 CFR 23.5,

this rule is promulgated for purposes of

judicial review at 1 p.m. eastern

standard time on March 18, 1996.

Because this final rule relieves a

regulatory restriction, under section

553(d) of the Administrative Procedures

Act (APA), this final rule is also

effective on March 18, 1996.

FOR FURTHER INFORMATION CONTACT:

Susan B. Hazen, Director,

Environmental Assistance Division

(7408), Office of Pollution Prevention

and Toxics, Rm. E-543B, Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 204GO, (202) 554-1404,

TDD: (202) 554-0551, F/\X (202) 554

5603 (document requests l:

TSCA-Ilotline@epamni

SUPPLEMENTARY INFORMATION:

[OPPTS-66009B; FRL-5354-8)

RIN 207o-AC01

Disposal of Polychlorinated Biphenyls;

Import for Disposal

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule,

11096

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Federal Register I Vol. 61. No. 53 I Monday. March 18. 1996 I Rules and Regulations 11097

outside the United States. Thus EPA's

analysis for this rulemaking does not

consider impacts of the rule that take

place outside the United States.

Because EPA is promulgating this rule

to allow import for disposal under its

section 6(e](l) authority, it is no longer

necessary for persons who wish to

import PCBs for disposal in accordance

with this rule to apply for case-by-case

exemptions under section' 6(e)(3).

However. to the extent thllt persoIls

wish to engage in import activity

outside the scope of this rule (i.e.• an

activity other than importing PCB waste

for disposal), section 6(e)(3) petitions

may still be filed with the Agency.

C. Coordination with International

Agreements

On May 5.1992. the Basel Convention

on the Control of Transboundary

Movements of Hazardous Wastes and

Their Disposal (Basel Convention)

entered into force. The Basel

Convention imposes a series of

obligations on Parties regarding

transboundary shipments of hazardous

waste. One provision ofthe Convention

ofsignificance to the implementation of

today's rule is that Basel Parties are

prohibited from exporting or importing

wastes that fall within the scope of the

Convention to or from non-Parties

unless a separate agreement or

arrangement exists with non-Parties

regarding transboundary shipments of

such wastes. (For a more detailed

explanation of the Basel Convention. the

content and role ofthese separate

agreements and the text of the

Convention. please see the Federal

Register of May 13.1992 (57 FR 20602).)

On March 21.1990, the United States

signed the Basel Convention. Signature

indicates that the United States will not

take action that would defeat the object

and purpose of the Basel Convention.

However, the United States has not yet

ratified the Basel Convention. Since-the

United States is not a Party to the

Convention, Parties to the Convention

may not trade in Basel-covered wastes

with the United States absent a separate

bi- or multi-lateral agreement or

arrangement between the concerned

goverrunents covering such wastes (e.g.,

PCB waste) that meets the conditions

specified in Article 11 of the Basel

Convention. The lack of such an

agreement or arrangement could prevent

the export of PCB waste from a Basel

Party to the United States for disposal.

Nothing in today's rule alters the

existing authority of the United States to

prohibit an import whore the import is

not in compliance with an agreement or

arrangement that the United States has

entered into regarding PCB waste

imports; or where the import is not in

compliance with other international

obligations of the United States.

D. Coordination with Other EPA

Regulations

Section 9(b) of TSCA mandates EPA

to " ...coordinate actions taken under

this Act with actions taken under other

Federal laws...." EPA believes that

today's filIal rule has the advantage over

the proposed rule and the current

"Closed Border Policy" of making the

regulation of importation of PCBs for

disposal more consistent with the

regulations on the importation of

hazardous wastes under the Resource

Conservation and Recovery Act (RCM),

40 U.S.C. 6901 et seq. Currently, under

RCRA, EPA generally does not restrict

the importation of hazardous wastes

from abroad for disposal at permitted

facilities in the United States. apart from

certain controls adopted pursuant to

relevant international instruments. such

as the U.S.-Canadian Agreement

Concerning the Transboundary

Movement of Hazardous Waste. EPA

believes that without appropriate

controls. the importation of PCBs for

disposal could pose unreasonable risks

to human health and the environment in

the United States. Therefore. EPA

believes that it is in the public interest

to regulate the importation of PCBs for

disposal.

The need to make a determination of

no unreasonable risk under TSCA

mitigates against an unrestricted open

border policy for PCBs. Therefore,

today's rule will allow for importation

of PCB wastes with minimal disruption,

including PCB-eontaining hazardous

wastes that formerly were barred from

entry into the United States. For the

reasons explained below in Unit I.E.•

EPA determines that, with proper

control, including prior notification,

tracking, and storage and disposal in

approved facilities. a less restrictive

policy concerning the import of PCBs

for disposal, which is more consistent

with the program for hazardous wastes

under ReM, will not present an

unreasonable risk of injury to health or

the environment.

In addition to compliance with the

TSCA PCB regulations at 40 CPR part

761, importers should be aware that

other requirements may also apply to

imports of PCBs. For instance. importers

must provide a TSCA Section 13

Importer's Certification to U.S. Customs

in accordance with 40 CPR part 707,

subpart B. Further. All parties should be

aware that imported PCB waste may be

subject to regulation under RCRA

Suut it le C as a hazardous waste. unless

it satisfies the RCRA exemption set forth

in 40 CFR 261.8 or another applicable

exemption. Section 261.8 exempts

generally from RCRASubtitle C

regulations tho disposal of certain PCBcontaining dielectric fluid and electrical

equipment containing such fluid

authorized for use under 40 CPR part

761. EPA believes this RCRA exemption

should apply to the disposal of PCB

waste that meets the criteria of§ 261.8

regardless o'fwhether the dielectric fluid

or electrical equipment containing this

fluid originated domestically or abroad.

(These fluids and equipment may not be

imported for use, but may be imported

for disposal.) There is no reason to treat

these imported fluids and equipment

differently from their domestic

counterparts for purposes of this

disposal exemption and § 261.8 was not

intended toresult in different treatment

of the same type of materials. However.

if imported PCB waste meets the RCRA

definition of a hazardous waste and fails

to meet the § 261.6 exemption, then it

will have to be handled i;U compliance

with all applicable RCRAregulations (as

is the case with domestic PCB waste).

Nothing in this rule affects or obviates

obligations affecting PCBs under other

laws or regulations. The importer. and

the owner or operator of each storage

and disposal facility managing imported

PCBs for disposal are responsible for

determining and complying with all

other applicable Federal. State and local

laws and regulations pertaining to the .

management of this material.

E. Unreasonable Risk Finding

In this final rule. EPA is not

implementing the proposed import

notice provision that would have

required importers to justify. on an

individual shipment basis, how

importing PCB waste for disposal would

be in the interests of the United States.

Based on additional data supplied by

commenters, in particular comments

demonstrating the very low risks

associated with regulated

transportation, EPA has determined that

the risk associated with the import for

disposal of PCBs would be insignificant

under the circumstances outlined in this

rule. and these insignificant risks are

outweighed by significant benefits.

Provided import of PCas for disposal is

conducted under the circumstances

outlined in this final rule, including

notification of the Agency. EPA finds

that such import will not present an

unreasonable risk of injury to health or

the environment in tile United States.

This is because in the-United States all

PCBs imported for disposal arc subject

to u.s. Department of Transportation

regulat ions for hazardous materials

during transport. and must be

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11098 Federal Register I Vol. 61, No. 53 I Monday, March 18, 1996 I Rules and Regulations

manifested. stored. and disposed of only

in facilities with PCB storage and

disposal approvals. or laboratories

handling limited quantities. The United

States will realize significant benefits

from this rule, including the

amelioration of the risks posed to the

United States by the presence of PCBs

ill the world ellvirollrllElIlt. Unifed Sta.tes

industry stands to gain an economic

benefit of $50 - $100 million annually

from PCB waste imports, and additional

jobs may be created.

EPA received substantial written and

oral comments in response to the

proposed PCB Disposal Amendments

and the proposed PCB Exemptions Rule

(59 FR 62875, December 6,1994) on the

risk of transportation for disposal. Most

commenters addressing the

transportation issue argued that the

risks involved in transportation for

disposal are negligible. The American

Trucking Association's (ATA)

comments included a review ofthe

Department of Transportation's (DOT)

statistics. and found that only one

"serious incident" involving PCB

transport occurred in the period from

January 1,1990 to November 15, 1994.

(During that period. a "serious incident"

was defined by DOT to be an accident

or derailment. an evacuation, Ii death,

an injury requiring hospitalization or

lost work time. or a road closing.

(comment CI-047).) For comparison,

1,923 serious incidents involving

hazardous wastes occurred from January

1,1990 to December 31,1995, and

during that same period, 16,074 serious

incidents involving all hazardous

materials (including wastes) occurred.

Also. during that time. 14 serious

incidents involving Class 7 radioactive

material occurred. ATA estimates that

upwards of 500,000 shipments of

hazardous materials and 5.000

shipments of hazardous wastes are'

made daily.

The Environmental Technology

Council (ETC) noted in its comments

that over 200,000 tons of RCRA

hazardous waste per year move across

the U.S.- Canadian border, including

pesticides and other chlorinated

hydrocarbons with hazard profiles

similar to PCBs. Comments supporting

the safe shipment of PCBs for disposal

were also provided by S.D. Myers. Inc.

EPA Region IV. in a 1986 study.

concluded that the risk associated with

a PCB transportation spill would be

slight (Ref. 5). Based on this datu and

analysis. EPA finds that the

transportation of PCBs imported into tho

United States for disposal presents little

risk of injury to health or the

eriv ironmc nt.

EPA also finds that the storage and

disposal of imported PCBs at facilities

approved under TSCA, as required by

this rule, presents little risk of injury to

health or the environment. In

developing the disposal regulations at

40 CFR part 761, subpart D, EPA

determined that the benefits of disposal

(be tha.tdestriidioll, dElCootlll11illlltioll, or long-term containment) outweighed

the risks associated with these

processes, especially since EPA

regulations require the use of the best

available technology standards for

destruction and long-term containment

at approved facilities. As part of its

approval process for PCB waste

management facilities, EPA evaluates

the technology and procedures of each

facility to ensure its ability to meet these

standards. These assessments presume a

conservative scenario with regard to

concentration of constituents and feedrate. The operating conditions of the

approval are set so that they do not

exceed the values established in the

technical assessment and during the

demonstration test. Therefore, since

each disposal approval establishes

operating conditions based on waste

characteristics demonstrated to the

Agency as part of the approval process,

disposing of foreign-generated PCB

waste in U.S. disposal facilities will not

increase the risks of disposal over and

above the risks calculated atthe time

the PCB disposal approval was issued.

In approving facilities under 40 CFR

part 761, subpart D, EPA ensures that

disposal facilities are designed and

operated in accordance with the

regulatory standards. While PCBs

currently in storage or in the

environment outside the United States

pose less immediate risk of injury to

health and the environment in the

United States than PCBs in the United

States today, they do pose some risk.

EPA believes that the benefits of the

removal of these PCBs outside the

United States outweighs any risks

associated with their disposal in TSCAapproved facilities.

The importation of rCBs for disposal

could theoretically cause situations

posing risks of injury by creating a

shortage of disposal capacity for

domestic PCB disposers. especially in

tho initial period of this change in

policy. Theoretically. such a shortage

could raise disposal prices enough to

slow the romoval of PCBs from service

in the United States. or to encourage the

irnpropor disposal of PCBs. either of

which might result in increased

exposure to PCBs. While the import of

PCB wastes may cause minor increases

in disposul prices over the short-term,

EPA does not believe that import will

cause a shortage of storage or disposal

capacity. With certain exceptions.

comments on this rule confirm that the

U.S. PCB disposal companies have

generally experienced an excess of

capacity in recent years.

Furthermore. EPA believes the

amounts of'PCBs available for import

are small in comparison to domestic

generation. and pose little threat of

swamping domestic disposal capacity.

For instance. a recent report estimates

there are 172.722 metric tons of PCB

materials in Canada (Ref. 3). Mexico

reportedly has 60,000 metric tons of

PCB materials (Ref. 1). EPA believes all

of this waste is unlikely to be imported

into the United States, particularly not

within a single year. For comparison,

842,050 tons of domestic PCB waste

were disposed of at U.S. commercial

facilities in 1993. Paradoxically,

allowing import of PCBs could even

stabilize disposal prices for U.S. PCB

waste generators in the future, by

ensuring that U.S. PCB disposal

facilities continue to have an

economically viable market. and

continue to remain in the PCB waste

disposal business.

Despite EPA confidence that import

will not hinder United States generators

from disposing of PCBs, as a safety

measure, today's rule will provide a

storage capacity cushion for domestic

PCB waste. EPA is requiring owners of

storage and disposal facilities accepting

imported PCB waste to certify that no

more than 70% of their facilities'

approved and operating storage capacity

is being used at anyone time for

imported PCB waste from all sources.

This will ensure disposal firms handling

imported waste cannot use all their

resources for imported waste to the

exclusion of domestic customers. Such

a situation might increase risk by

forcing domestic generators to store

their waste for extended periods of time.

The 70% capacity limit will facilitate

compliance with the existing

requirements for disposal of PCB waste

within 1 year of removal from service

(see § 761.65(b)) by ensuring adequate

access to disposal capacity for domestic

generators. This provision will expire

after 3 years. Based on the above cited

inventories of waste in Canada and

Mexico. EPA estimates that this 3-year

period will be sufficient to allow for any

surge of waste imports generated by this

new opportunity to dispose of PCB

waste in the United States. After that

time, EPA believes that the PCB

disposal market will have compensated

for any effects of additional foreign

wasto, and removal of this capacity

provision will not deny domestic

I
Federal Register I Vol. 61, No. 53' I Monday, M!1I'Ch 18,1996" Rules and Regulations

• j

11099

comment rulemaking, the policy still

provides inadequate relief•..The

petition process still creates' market

barriers betwoon similarly qualified

potential importers...m>A should..

.allow transborder movements of PCBs

at least on a level no more restrictive

than currently exists for hazardous

waste." Several commenters suggested

that at a minimum, EPA estahlish a

deadline for response to petitions, and

others recdmmended EPA grant

petitions on a class basis for specific

types ofimports [i.e., allow only liquids,

or recyclable metals, or waste from .

countries with no disposal, capacity).

Even greater concern was expressed

in comments about the actual c:riteria

that EPA would use to review and rule

.. on petitions to import waste as

proposed. The absence of a description

ofthe reView process and the potential

for inequity in EPA's decision-making

process were noted as uncertainties that

could negatively impact the U.S.

disposal industry's planning process

and hurt business competitiveness.

Commenters indicated that ifEPA

retained the review process in the final

rule, itshould elaborate on the time

frame for a decision and the actual

standards it would use in accepting or

rejecting petitions to import PCB waste

(e.g., how EPA intends to determine

whether an import is in the interests of

the United States). Preference was expressed for the replacement of the

proposed petition process with a codified list of conditions on import,

allowing unrestricted import for

disposal within the bounds ofthose

conditions, with no notification to EPA.

Not all commenters supported the

general proposal to open the border to

PCB wastes at concentrations of 50 ppm

and above. One commenter expressed

concern that allowing imported PCBs to

compete for finite domestic disposal

capacity would increase PCBdisposal

costs for domestic generators such as

itself. Adequate domestic disposal

capacity was one of the concerns which

caused EPA to close the borders in 1980

and it remains an issue that is being

addressed in this rulemaking. The 1980

border closing was focused almost

exclusively on waste disposal capacity

in Canada. Capacity now exists in

Canada as indicated in written and oral

comments by Canadian disposal firms

(e.g., fixed-site incinerator at Swan

Hills, Alberta; mobile incinerators, etc.).

Comments opposing any extension of

the current open border policy for waste

at concentrations less than 50 ppm

PCBs, to PCBs atconcentrations of 50

ppm or greater, were submitted by the

firm of Hogan & Hartson and others on

behalf of several Canadiun disposal

does not consider import for purposes of

these regulations. Outside of these

excepted activities, the proposed rule

retained the general prohibition on the

import of PCBs for disposal at

concentrations of 50 ppm or greater.

EPA also requested comment on the

extent to which the U.S. border should

be opened to transboundary shipments

of PCBs for disposal, noting that the

choices available for the final rule

ranged from allowing all imports under

section 6(e)(1) to maintaining the

generally closed border status, and

might include opening the border to

PCBs from a limited geographical area

such as the Great Lakes drainage basin

(see 59 FR 62816).

B. Summary ofComments

Oral and written comments in

response to the proposed import

provisions were submitted by

approximately 32 separate parties.

Comments are available for review in

the docket to this final rule. EPA's

response to those comments are summarized in a Response to Comments

document, which is also,available in the

docket to this rule.

In general, comments submitted in

writingand presented orally at the

public hearing strongly supported

opening the border as broadly as possible to Imports ofPCBs for disposal.

The general sentiment of commenters was that the time was appropriate for a

relaxation of EPA's 1980 "Closed border

policy" (May 1, 1980, 45 FR 29115) on

PCBwastes because the United States

has the technology, capacity, and ability

to dispose of PCB waste generated in

other countries. Commenters generally

supported allowing imports of wastes

from foreign countries, with particular

emphasis on PCBwastes coming from

United States firms with foreign

operations, and from Mexico and

Canada. Many commenters opposed

restricting imports to instances where

"the interests of the United States" was

narrowly interpreted to apply to PCBs in

a narrow geographical area just outside

the country's borders, where

mismanagement of those wastes could

pose an immediate risk of exposure and

thus pose a risk of injury to health and

the environment in the United States,

Little support was expressed for the

actual process proposed by EPA.

Generally, commenters indicated that

the proposed petition and review

mechanism was too burdensome and

not likely to provide the relief intended.

One.comrnenter. American Trucking

Association (C047), summarized this

belief: "While such case-by-ease review

may not be a shipment-by-shipment

review nor subject to notice-andgenerators access to disposal capacity or contribute to the need to store PCBsfor more than 1 year.

EPA now concludes that to attempt to

regulate individual import shipments of

PCBs based on the risk those PCBs

would pose to health or the

environment in the United States ifthey

were to remain in storage or use outside

of the United States is impractical and

inequitable. This conclusion is based on

the lack of any established scientific

methods in use to measure the relative

risk of one cross-border exposure , scenario with another. This issue is

further complicated by the persistence

of PCBs in the environment and their

world-wide dispersal. For instance,

research supporting EPA's report to

Congress, Deposition ofAir Pollutants to

the Great Waters (EPA-453A!R-93-055,

May, 1994), indicates that up to 89% of

the current PCB loading for Lake

Superior occurs through air deposition,

much of it from distant souroes.Ftgures

for the other Great Lakes range from 6%

to 63%. 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 PCBsin approved U.S.

facilities poses less risk of injwy 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.

II. Discussion ofthe Rule and

Comments

A. Background

Currently, EPA allows the import for

disposal of PCBs only at concentrations

less than 50 ppm. In response to

periodic requests from individuals to

import PCBs for disposal at higher

concentrations, and to ensure that the

PCB rules are not inconsistent with the

conditions of the Basel Convention, EPA

proposed in the PCB Disposal,

Amendments (59 FR 62788, December

6,1994) to allow such imports under

certain circumstances, in the belief that

doing so would not pose an

unreasonable risk of injury to health or

the environment. EPA specifically

proposed to create certain categorical

exemptions to the general ban on import

for disposal of PCBs at 50 ppm or

greater. For PCB waste not included in

these categorical exemptions, EPA

proposed to establish a petition

procedure to allow import on a case-bycase basis. EPA also proposed to clarify

the status of certain transboundary

shipments of PCBs which the Agency

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11100 Federal Register I Vol. 61, No. 53 I Monday, March 18. 1996 I Rules and Regulations

concerns. The comrnenters argued that

EPA docs not have the statutory

authority under TSCA section 6(e)(1) to

regulate import for disposal; rather, all

imports must be regulated under the

statutory ban on manufacture at section

6(e)(3). The cornmenters also

maintained that by this rule EPA was

making a significant policy change. and

that EPA has failed to support its action

with data or analysis, as required by the

Administrative Procedure Act (APA) 5

U.S.C. 551 et seq. The commenters also

questioned the appropriateness of the

proposed rule under existing

international law governing the

shipment of hazardous wastes.

As discussed in Unit 1.8. ofthis

preamble under the heading "Statutory

Authority:' EPA believes it has the

authority to regulate import-for-disposal

under TSCA section 6(e)(1).

EPA closed the border in 1980

primarily because of both limited

disposal capacity in the United States

and no appropriate disposal capacity in

Canada, the country which presented

the greatest potential for exports to the

United States. Today, that situation has

changed dramatically, with excess U.S.

disposal capacity at an all time high.

and with the presence ofadequate

disposal capacity in Canada. EPA

believes that today's rule is more in

harmony with the international

obligations of the United States

pertaining to the transboundary

shipment and disposal of hazardous

wastes than the previous closed border

policy.

EPA received a late comment that any

decision by the Agency to generally

open the border to imports (and exports)

would not have been properly

announced in the Federal Register and

therefore potential commenters did not

have an opportunity to provide

comment. EPA disagrees with this

comment. The notice proposing to open

the border clearly requested comments

on a broad range of options. The

December 6,1994, Federal Register

notice stated: "EPA is requesting

comment on the circumstances under

which the U.S. border should be opened

to transboundary shipments of PCBs for

disposal. The options range from

allowing all imports for disposal under

section 6(e) to maintaining the current

closed border status, and might include

opening the border to PCBs from a

limited geographic area such as the

Great Lakes drainage basin" (59 FR

62816). Many of those who provided

written comments or oral comments at

the public hearing on the issue of

opening the border availed themselves

of EPA's request. EPA also notes that the

written comment period on this rule

was extended once, and totalled 120

days. The public hearing was held after

the close of the written comment period,

and there was opportunity to file

written reply comments afterthe public

hearing. Therefore, EPA rejects the

argument of a lack of prior notice and

opportunity for comment on this issue.

C. Discussion ofToday's Final Rule

In response to the general support for

an expansion of the current exception

(i.e.• the import of PCBs for disposal at

concentrations of less than 50 ppm) to

allow import of higher concentration

waste under section 6(e)(1) of TSCA,

and because EPA has been able to make

a finding of no unreasonable risk, EPA

is allowing imports of PCB waste at

concentrations at 50 ppm or greater,

under certain conditions. EPA is

adopting the import for disposal portion

of the proposed rule, with modifications

to eliminate EPA review and approval of

each import notice. This final rule

eliminates these notice requirements for

the import of limited quantities of PCB

waste for laboratory analysis or for

treatability studies. These activities

facilitate the disposal process, and

import of these limited quantities will

not pose an unreasonable risk to health

or the environment. For clarity, EPA is

finalizing the provisions oftoday's rule

under a new subpart F of the PCB

regulations at40 CFR part 761, which

will include all provisions pertaining to

import. export, and other transboundary

shipments of PCB waste. References to

the new subpart F are being included at

§§ 761.20(b) and (c)(3) and 761.60(h)

and definitions are being added to

§ 761.3 for "Basel Convention:'

"Importer," and "Treatability study."

1. Import notice. Under this final rule

at § 761.93(b). importers of PCBs and

PCB Items are required to submit a PCB

waste import notice to EPA's Office of

Enforcement and Compliance

Assurance. EPA must receive this notice

at least 45 days before the first import

enters the United States. The notice

must contain specific information,

including the identity of the importer

(company name, name of contact

person, address, telephone number,

facsimile (fax) number, EPA

identification number], the identity of

the foreign generator (company name.

contact name, address - including

country. telephone and fax numbers).

countries of transit (if any), port of entry

in the United States. and methods of

transport (e.g., by ship or rail). The

notice must identify the types of PCB

waste (e.g., transformers, capacitors, oil,

soil) and PCBconcentrations, the

number and frequency of shipments,

maximum shipment size, and the

maximum total quantity to beimported

during the period covered by the notice.

Projected dates of shipment must be

included. as well as the period'of time

covered by the import notice (not to

exceed 12 months). The notice must

identify each storage and disposal

facility which will be managing the PCB

waste, covered by the notice (by

company name, contact name, address.

telephone and facsimile numbers, and

EPA identification number). Imported

PCB waste must be stored and disposed

ofin TSCA-approved commercial

facilities. unless otherwise noted in

§ 761.93(b). The notice must also

include written certifications from each

storage or disposal facility identified in

the notice,' including the importer if

applicable, that the facility has the

capacity to store the waste and that no

more than 70% of their facilities'

approved and operating storage capacity

is being used at anyone time for ,

imported PCB waste from all sources.

the facility agrees to accept the waste.

and has the appropriate TSCA

approval(s) to manage the waste. In

addition, the importer must certify that

it is a TSCA-approved commercial

storer or disposer of PCBs, and that it

agrees to accept full financial liability

for the waste from the time it enters the

United States until it has been

completely and finally disposed of.

Such liability includes the costs

associated with any spills, cleanups.

and additional disposal that may occur.

Finally, the importer must certify the

completeness and accuracy of the

information included in the notice.

using existing certification language at

40 CFR 761.185(e).

One commenter stated that EPA

should require disposers accepting ,

imported PCB waste to notify all their

customers of such imports. so those

customers could assess their liability.

EPA does not believe this is necessary.

in that before it accepts any imported

PCB waste. the importer. which must be

a commercial storage or disposal

facility. must accept full financial

liability for this waste. Further

arrangements for protection from

liability for the mismanagement of

imported PCBs are best dealt with in the

contractual arrangement between the

facility and their domestic PCB waste

clients. '

One notice will be sufficient for all

shipments by the importer for 12

months from the date of the first import.

so long as all shipments are accurately

described by that notice. A change in

import practices during that year which

deviates from tho notice. such as

exceeding the quantities identified in

the notice, commencement of import
Federal Register I Vol. 61, No. 53 I Monday, March 18, 1996 I Rules and Regulations 11101

from a new country, or storage or

disposal in a different facility, requires

that a new notice be submitted, and

received by EPA 45 days prior to the

change occurring. A notice submitted to

report such changes in import practice

should indicate that it is an amendment

of an earlier notice. By requiring an

import notice only once every 12

months, rather than before every

shipment; EPA believes that today's

final rule will impose a significantly

lighter reporting burden and

significantly fewer delays on the

regulated community than shipment-byshipment notification, while still

retaining sufficient EPA oversight. If a

series of import shipments will continue

beyond 12 months, the importer must

submit a new import notice to cover the

activity which continues beyond the

initial 12-month notice period. Provided

an importer submits subsequent notices

punctually so that they are received by

EPA at least 45 days before the annual

expiration of the first import notice. the

importer should be able to continue

importing indefinitely without

interruption, assuming the notices are

properly filed and complete. EPA

believes that 45 days are necessary for

it to review the import notice and

investigate any associated issues, such

as disposal capacity at a facility. or U.S.

international obligations pertaining to

shipments of waste from specific

countries.

EPA recognizes that some of the

information required to be submitted in

a PCB waste import notice may also be

required to be submitted to EPA

pursuant to certain international

agreements. With the exception of the

information and certifications required

by § 761.93(b)(1)(iii)(F). (G), and (H),

importers may elect to include

information in the PCB waste import

notice in the same format as the

information is submitted under the

international agreement. Under all .

circumstances, the specific certifications

required by § 761.93(b)(1)(iii)(F), (G),

and (H) must be included in each PCB

waste import notice. EPA encourages

importers to submit information using

the same form submitted under the

international agreement, provided the

form contains the information required

by § 761.93(b)(1)(iii)(A)-(E).

2. Confidential business information.

EPA believes that the information

requested in PCB waste import notices

will generally not warrant treatment as

confidential business information (CBl)

pursuant to section 14 of TSCA. EPA

believes that most. if not all, of the

information requested in the PCB waste

import notice. will not meet the criteria

established for TSCA CBl. Also. much of

. this infonnation would be accessible to

the public through other avenues. such as on manifest forms, or through notices

provided under other statutes, such as

RCRA. or under international

agreements. For instance, while some

international agreements. such as the

bilateral agreement between UIO United

States and Canada on hazardous waste,

have provisions for CBI, many others,

such as the Basel Convention. contain

no provisions for such information.

EPA strongly recommends that

importers not make claims of CHI on

their import notices. Notices containing

CBI claims will require an enhanced

level of review by the Agency. If CHI

claims are made, such claims should be

accompanied, at the time the claim is

made, by a written justification

substantiating each item of the claim

pursuant to 40 CFR 2.204(e). In

accordance with the procedures set

forth in TSCA and 40 CFRpart 2, EPA

will routinely request such

substantiation from the importer ifit

does not accompany the claim of

confidentiality. EPA intends to

challenge CHIclaims. unless the

submitter satisfactorily demonstrates a

valid need to maintain confidentiality.

and can demonstrate that the

information is not accessible to the

public through other avenues. such as a

government-to-government notification

under the Basel Convention, or through

manifesting.

Any claim of confidentiality must

accompany the PCB waste import notice

at the time it is submitted to EPA. To

make a CHIclaim, the importer must

submit two copies of each PCB waste

import notice. One copy oCthe notice

must contain all information required in

§ 761.93(b)(1)(iii). In this copy of the

notice, the submitter must clearly

highlight or mark the specific items

claimed as confidential on each page,

and identify each item with the label

"TSCA Confidential Business

Information." This notice must be

double wrapped. and the inner envelope

marked "PCB Waste Import NoticeCll! Claimed." The outer envelope must

be addressed to: TSCA Document

Processing Center (7407). Office of

Pollution Prevention and Toxics, U.S.

Environmental Protection Agency,

Washington. DC20460. Substantiation

of CBl claims must be submitted with

this copy. The second. "sanitized," copy

must contain all information required in

the first copy, with the exception that

all information claimed as confidential

in the first copy must be deleted. This

copy must be sent to the address' used

for non-Cll! notices (Attn: PCB Waste

Import Notice. Office of Enforcement

and Compliance Assurance. Office of

Compliance (2222A), U.S.

Environmental Protection Agency, 401

M St., SW., Washington. DC 20460).

EPA will not consider a PCB waste

import notice that contains cm claims

to be complete for purposes of this rule,

nor initiate the 45-day time period,

until both copies and the written

substantiation are received by EPA.

3. Review ofimport notice. EPA will

screen incoming PCBimport notices for

compliance with the notice conditions

required by § 761.93(b){1). EPA may

refuse entry of individual PCB waste

import shipments in instances where

the import.notice is incomplete,

inaccurate, or the designated storage or

disposal facility is not approved for the

type, concentration, or quantity of waste

proposed. EPA is also reserving the right

to refuse entry based on shortage ofthe

storage or disposal capacity at the

designated facility (including noncompliance with the 70% storage

capacity requirement), or noncompliance with intemationallaw or

obligations that would result from a

given import. In addition. EPA may

always at a later date bring an

enforcement action against a shipment

which has already entered the United

States.

4. Regulation ofPCBs after import.

EPA.is also including a provision at .

§ 761.93(b)(2) in the final rule to address

the storage and disposal of imported

PCB wastes in the United States,

Imported PCBs and PCB Items are

subject to all applicable marking

provisions of subpart C, and must be

stored and disposed of in accordance

with subpart D. All storage.container

provisions of subpart D apply, as well

as any applicable Department of

Transportation (DOT) standards.

In general, all PCB wastes imported

into the United States are regulated

under 40 CFR part 761 in the same

manner as domestic PCBs except that

imported PCB wastes must be stored

and disposed of in a facility with an

appropriate commercial storage or

disposal approval that has been issued

under section 6(e) of TSCA. Imported

PCB wastes may not be stored at a

facility which is not approved as a

commercial storer of PCB waste, nor

may they be disposed of at a facility

without a TSCA disposal approval

issued by EPA, such as a municipal

solid waste landfill, boiler, industrial

furnace, or high-efficiency boiler. For

instance, intact and non-leaking

fluorescent light ballasts and drained

PCB-contaminated electrical equipment

from domestic sources-are currently

allowed under TSCA to be disposed of

as municipal solid waste. However. if

these PCB items are iIIIported for

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11102 Federal / Vol. 61, No. 53 / March 18, 1996 / Rules and

disposal, they must be treated as PCB

waste. They must be manifested, stored

at a commercial storage facility, and

disposed of in a TSCA-approved

disposal facility [o.g., incinerator or

TSCA landfill). The handling of all

imported PCBs and PCB Items as PCB

waste subject to subpart D is a necessary

condition of EPA's finding of no

unreasonable risk for the import of PCBs

for disposal. EPA is mandating the use

of TSCA-approved commercial storage

and disposal facilities for the same

reason; such facilities have financial

assurance to ensure proper closure. they

must submit annual reports to the

Agency, and they have Agency

approved capacity limits at their storage

facilities. These conditions are

necessary for the Agency to track

imported PCB waste. and they permit

the United States to assure the exporting

country that the imported PCB waste is

being managed in an environmentally

sound manner.

Imported PCB waste is subject to the

1 year limit on storage for disposal at

§ 761.65(a). For calculation of the 1 year

storage for disposal limitation. EPA will

consider storage for disposal to initiate

on the. first one of the following three

dates, as applicable: (1) The date the

PC;B waste enters a State in the 48

contiguous States; (2) the date the PCB

waste enters any State, if the waste is to

be disposed of in that State; (3) the date

the waste enters a State outside the

contiguous 48 States, if the waste is

stored in that State for more than 10

consecutive days. The first of these

instances will be the usual situation.

The second provision currently is

expected to apply to waste disposed of

at the U.S. Army's disposal facility at

Johnston Atoll. as this is currently the

only TSCA-approved disposal facility

outside the contiguous 48 States. The

third instance is intended to prevent the

indefinite storage of waste in a State.

For instance. shipments of waste in

transit from another country to the U.S.

mainland might enter Hawaiian port

for a few days for transfer to another

vessel, EPA does not consider such a

transfer to begin the 1 year storage for

disposal time period. However, EPA

docs not wish to allow waste to he

stored at dockside or in ships for weeks

on end. Ten days is the existing

regulatory limit on such transfer storage,

because that is the time limit imposed

Oil stornge at a transfer facility WIthout

approval for conunerci.rl storDge (see

§ 7G1.3. definition of "transfer

facility") That is, If Wilsie is stored ilt

!l port for over 10 it must be st orcd

by nn approved cO!!lm(~rcinl End

lilt: 1 slornge fur (JL.;po:;;,\ i; twill

also commence for that waste, Importers

should be aware that the 1 year limit on

storage for disposal automatically

precludes the legal import of PCB

wastes that cannot be disposed of

within 1 year. such as some types of

mixed PCB-radioactive wastes for which

there are currently no permanent

disposal solutions.

5. Becotdkeepitig and manifesting.

For purposes of recordkeeping under 40

CFR part 761, subpart J, "General

Records and Reports," importers, other

than those who are the initial

commercial storer or disposer of the

waste, are required by § 761.93(b)(3)(0

to keep the same annual records

required of domestic generators. EPA is

not requiring importers to keep these

records if the waste is imported directly

upon entry to the importers own

facility, because these records would be

duplicative of those maintained by the

facility as a commercial storer or

disposer under § 761.180(b). Importers

who must keep the records required of

generators, shall keep those records

distinct from those that the importer

maintains in its capacity as a

commercial storer and disposer. If the

importer, also happens to be a generator

of (domestic) PCB waste, and is required

to keep annual records for those wastes,

the annual log must clearly distinguish

between the imported and domestic

wastes. For instance, the log must

indicate in some manner, such as a

code, asterisk. bolding, or separate

subheadings. each item on the log

(manifest numbers, PCB Articles. PCB

Containers. etc.) that came from a

foreign source. The totals required at

§ 761. 180(a)(2)(iii) must also include

separate subtotals for imported wastes

in those categories. The log need only

distinguish imported waste from

domestic waste. and need not identify

the country of origin or subdivide the

subtotals by specific country of origin.

Similarly, all disposers and

commercial storcrs who accept

imported waste must identify imported

wastes as such in their annual logs, and

provide subtotals for imported wastes in

their annual logs and the annual report

they rnust subrni t to EPA pursuant to

the requirements at 40 CFR 7GI.1BO(b).

Such denoted records and reports wi 11

assist EPA in monitoring the effect of

waste imports on domestic disposal

rates and disposal capacity.

Section 761.93(b)(3)(ii) of today's rule

makes tho part 7G1,subpart K

requirements applicable to imported

PCB wastes with certain modifications,

In li lli out the manifest, identifvi

""''''');''"1>'' un both the importer

gcrlcfa((lr must be

information on Ihe

generator. The importer must also sign

the manifest in place of the generator.

and obtain the signature of the first U,S.

transporter. These provisions confonn

to the requirements of 40 CFR part 262,

subpart F for the manifesting of

imported Hazardous Waste under

RCRA,

In general, the importer shall be

considered the generator under this rule

for purposes of compliance with the

provisions of subpart K. Since importers

are required by this rule to beTSCAapproved commercial storers or

disposers. they are required to have

already submitted a Form 7710-53

under § 761.205 and received a unique

EPA identification number.

Also. EPA is requiring that all

imported PCB waste must be

manifested, even if the importer is also

the receiving facility indicated on the

manifest. That is to say, if a commercial

disposal facility is importing waste to its

own facility, even with its own trucks,

it must manifest the waste; it cannot

claim exemption from the manifest

requirements as a "generator" who has

not relinquished control over its own

waste. This provision also applies to

persons in the United States importing

PCB wastes generated by their own

facilities abroad. At § 761.207(a). EPA

exempted domestic generators from

manifesting shipments so long as they

retained control, to encourage

consolidation of waste, and because

EPA could track the waste's movement

through the generators' annual records.

Since neither the rationale nor the

control mechanism applies to waste

generated at foreign sites, h'PA is

requiring that all PCB waste imported

pursuant to § 761,93(b) be manifested.

EPA recognizes that this will create

many instances where an importing

company will manifest waste to itself.

EPA is also stipulating that imported

PCB wastes always be manifested

separately from domestic PCB wastes,

both to insulate domestic waste

generators from liability for imported

wastes, and to simplify tracking of

imported wastes for annual records,

annual reports, and EPA compliance

monitoring,

6. Analytical samples. Under

§ 761,93(c), EPA is adding a provision to

today's rule allowing limited quantities

of PCB waste to be imported into the

United States by any commercial storer.

disposer;or laboratory to determine

physical find chemical properties of the

PCBs (For purposes of this rule. EPA

considers such analysis as a disposal

reinted activity and within the scope of

ruie under section C(c)(1) of

) This nctrol1 being taken 111

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Federal Register I Vol. 61, No. 53 I Monday, March 18, 1996 I Rules and Regulations

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and verification of appropriate storage

and disposal approval conditions and

sufficient storage capacity. No prior

notification or approval is required

under this provision. However,

laboratories, storers, and disposers

importing samples should be aware that

notification may nevertheless still be

required for these shipments by other

Federal, State, or local laws or

international treaties. Analytical

samples are also subject to TSCA

section 13 import certification (40 CFR

707.20). As with all other PCBs of

unknown concentration, samples

containing unknown concentrations of

PCBs must be assumed to contain, and

treated as if they contain, PCBs at

concentrations of 50 ppm or greater. All

unused PCB waste sample material and

residuals from any testing must be

stored in compliance with § 761.65(b)

and disposed of in compliance with

§ 761.60. Quantities imported by each

importing facility are being limited to

annual levels of 25 liters for liquids, and

200 kilograms for non-liquid PCBs, such

as soil or sediment. Individual samples

are being limited in size to 25 milliliters

for Iiqulds and 5 kilograms for nonliquids. In addition, laboratories must

comply with existing conditions at

§ 761.65(i) for the handling of PCB

samples, and in conformity to the

definition of commercial storer, must be

approved as a commercialstorer if they

store a total of more than 500 gallons of

PCBs at anyone time (for computation

of non-liquid PCB volume, 500 gallons

(U.S.) equals approximately 1.89 cubic

meters).

By eliminating the notification

provision for analytical samples, EPA is

allowing U.S. laboratories, storers, and

disposers to handle samples from

foreign sources in the same manner that

they are permitted to handle domestic

samples. EPA believes that to impose a

notification requirement, and the

corresponding 45-day advance notice

provision, would impose an

unreasonable burden on U.S.

laboratories, storers, and disposers

which could significantly affect their

ability to compete for foreign business.

Because of the limited quantities of

waste being imported under this

provision, and the controlled

environment where such samples will

be handled, EPA finds that allowing

such limited imports will not pose an

unreasonable risk of injury to human

health or the environment.

PCBs at concentrations of less than 50

ppm may continue to be imported

without regard to the quantity limits

and storage and disposal requirements

imposed by § 761.93(c). since these

provisions only apply to PCBs at

concentrations of 50 ppm or greater. The

import of PCBs for disposal at

concentrations less than 50 ppm is

allowed without restriction by

§ 761.93(a)(1)(i).

7. Treatability studies. A similar

provision is being added at § 761.93(d)

to allow TSCA-approved disposal

facilities to import, without prior

notification. limited quantities of PCB

waste for treatability studies. Such

studies are typically performed to

determine the suitability and

effectiveness of a disposal method on a

specific sample of PCB waste. EPA is

imposing limits on the annual quantity

of waste imported (500 gallons), the

maximum concentration of PCBs in

samples (10,OOOppmj, and the annual

quantity of pure PCBs present in the

material (1 kilogram). These limits

conform to those proposed by EPA (59

FR 62788) for self-implementing

Research and Development studies.

Larger quantities may be imported for

treatability studies under § 761.93(b).

Appropriate marking. storage. disposal.

manifesting. and recordkeeping

provisions apply to PCB waste imported

under § 761.93(d). Also. as with

analytical samples. PCB waste shipped

for treatability studies may be subject to

notification requirements under other

laws or international treaties.

Treatability study wastes are also

subject to TSCA section 13 import

certification (40 CFR 707.20).

Treatability waste containing unknown

concentrations ofPCBs must be

assumed to contain. and treated as if

they contain. PCBs at concentrations of

50 ppm or greater. EPA believes that it

is appropriate to allow such treatability

sample shipments to occur without

prior notification, because the delays

involved in notification would place •

U.S. disposers at a competitive

disadvantage with foreign competitors,

and would unfairly penalize foreign

waste generators wishing to do business

with U.S. disposers vis-a-vis domestic

generators, who are only required to

manifest samples.

8. Other imports and transboundary

shipments. The general exceptions to

the import prohibition, proposed at

§ 761.20(b)(2) are being included in this

final rule at § 761.93(a)(1). Section

761.93(a)(1)(i) allows for the import of

PCBs and PCB Items for disposal at

concentrations of less than 50 ppm, as

was allowed prior to this rule by

§ 761.20(b)(2}. PCBs and PCB Items at

concentrations less than 50 ppm are not

regulated for disposal under 40 CFR part

761, subpart 0, and are allowed to bo

imported and exported for disposal

under TSCA section G(e)(l).

11103

Section 761.93(a)(1)(ii) allows for tile

shipment of PCBs for disposal from

United States territories and possessions

outside the customs territory of the

United States. As explained in detail in

the preamble to the proposed rule (59

FR 62788 at 62816). these shipments are

technically considered "imports" under

TSCA. This import activity may be

conducted without going through the

notice process at § 761.93(b)(1). EPA

does not find a notice necessary to make

a finding of no unreasonable risk, since

the PCBs are already in the United

States. and are. and have always been"

subject to all use. distribution in

commerce. and disposal requirements of

40 CFR part 761. but must be

"imported" into tho customs territory of

the United States for ultimate disposal.

EPA is not finalizing the proposed

§ 761.20(b)(6) in today's final rule. This

section proposed to codify EPA's

current policy toward certain

transboundary shipments of PCBs

which are not treated as import or

export for purposes of 40 CFR part 761.

EPA will address this issue, along with

other issues raised by the December 6,

1994. proposed rule. including export of

PCBs at concentrations of 50 ppm or

greater. in a separate Federal Register

notice at a later date.

EPA is adopting the proposed

§ 761.20(c)(3)(i). now at § 761.97(a)(1),

which allows the export of PCBs for

disposal at concentrations of less than

50 ppm. Such export had up until

today's rule been pemiitted under

§ 761.20(b)(2). Although EPA intends to

address the general issue of export at a

later date in the final PCB Disposal

Amendments. it is necessary to finalize

this one export provision in today's rule

to preserve the status quo on exports.

Otherwise, with the elimination of the

language at old § 761.20(b)(2), delaying

promulgation of the proposed

761.20(c)(3)(i) would make the export

for disposal of PCBs at concentrations

less than 50 ppm illegal in the interim

between the effective date of this rule

and the effective date of the final PCB

Disposal Amendments. EPA is placing

the reference to the subpart F export

provisions in § 761.20(c)(3}, which

addresses export for disposal. EPA

believes this location is more

appropriate than § 761.20(b), which

addresses manufacturing and importing

prohibitions. EPA intends to include all

subsequent export fot disposal

provisions under § 761.97.

III. Official Rulemaking Record

In accordance with' the requirements

of section 19(a)(3) ofTSCA. EPA

established the record of this

ruJemaking with the proposed rule. This

II
a result, some Mexican companies arc

currently shipping PCB wastes to

Europe for disposal.

Other than Canada and Mexico,

additional major sources of PCB wastes

are uncertain. PCB disposal industry

personnel have indicated to EPA that

they do not believe that large-scale PCB

shipments from Japan or Europe would

occur, based on their opinion that

transportation costs would be excessive

and that there are likely to be more

conveniently located disposal sites

elsewhere (Ref. 10). For example, in

Europe, PCB disposal facilities

reportedly exist in Great Britain. the

Netherlands, France, and Finland.

2. Conclusions on import levels.

While data on which to base a forecast

are limited. it was judged that revenues

from PCB imports will not exceed $100

million per year. The total potential

import market from Canada and Mexico

is estimated to be in the vicinity of 500

million pounds of waste, representing a

total market of $500 million. Only if all

wastes from Canada and Mexico were

imported within 5 years could U.S.

revenues increase by over $100 million

per year. As noted, however, a share of

the Canadian waste will be disposed of

in Canada. Further, while the rate at

which importing will occur is unknown,

the lack of regulations mandating swift

disposal in the exporting countries

suggests that imports will occur over a

longer time period than 5 y?ars.. Given the above observations, it was

judged more likelythat revenues fr?m

disposal of imported PCB wastes will

fall in the range of $50 million to $100

million per year. Although revenues

might increase further if additional PCB

wastes arrive from other countries, the

volume of such imports is not expected

to be large.

3. Forecasts of price changes for

disposal of PCB wastes. EPA's analysis

in support of this rule also examined the

likelihood that importing of PCB wastes

would increase prices for disposal

services, thereby generating economic

impacts for domestic PCB waste .

generators. The current level of capacity

uti lizat ion among PCB disposal

corn panics is the main factor .

inOuencing the likelihood of pncc

increases.

The Environmental Technology

Council (ETC). Washington, DC., was

contacted by EPA during the

pr cparationofthe Economic

Assessment, and reports to EPA a

substantial unused capacity at domestic

pcn waste disposal facilities, based Oil

r:TC's OWIl research Two new [,H:ilit

have lWf:lIll in the Inst fltw

and another is pntpdrillg lor

comm"rcial operations. !·:rc: "slim,dc',

IV. Regulatory Impact

In general, this PCB import rule will

bring U.S. regulation.s reg:lrdinl~ PCB

shipments to th~~ United :ta~es 111 closer

conformance With the principles of the

Basel Convention on the Control of

Transboundary Movements of

Hazardous Wastes and Their Disposal.

The research of the economic irn pacts

of this action focused on whether

import levels will generate an economic

impact of $100 million per year or more

for U.S. companies. Contacts were made

to: (1) PCB waste management

companies. (2) the Environmental. .

Technology Council, a trade association

representing waste management

companies, and (3) various govdrnment

organizations in the United States,

Canada, and Mexico.

EPA has found that the expected

regulatory impacts will be positive and

consist predominantly of increased

revenues for U.S. PCB waste

management companies. No significant

negative impacts were identified for any

sector of the U.S. economy.

1. Forecasts ofimport levels. Industry

personnel surveyed by an EPA

contractor during the development of

the Economic Assessment for the Final

PCB Import Rule indicated that the

majority of PCB waste imports will

originate in Canada, with additional

wastes originating in Mexico. One

recent estimate set the quantity of

Canadian PC~s in us~ at 50,000 metric

tons and PCB wastes III storage

(including electrical equipment and

contaminated soils) at 140,000 metric

tons (Ref. 3). These figures, which total

over 400 million pounds of potential

PCB waste imports, do not include light

ballast wastes. Assuming that PCB waste

disposal and management will generate

revenues of $1 per pound, this figure

represents an overall market of over.

$400 million. Canada has an operating

PCB disposal facility at Swan Hills,

Alberta. Canada also has some smaller,

mobile disposal facilities available

which can handle PCB waste. Therefore,

a share of the Canadian wastes will be

disposed of in Canada even if the U.S.

border opened 10 these wastes.

Limited data are available on

Mexico's PCB waste quantities. A 1995

study by ERM-Mexico, "Polychlorinated

Hiphenyls in Mexico" (Ref. 1). indicates

that Mexico has 10,000 rnetnc tons of

liquid PCB waste and perhaps over.

10.00(J PCB transformers and capacitors.

Cornhi ncd , these wastes mighl approach

100 rni IlIOn pounds Chcm ic;d Waste

ManagclllPllt oper:cliOs cherrlical

landfill i n Mexico ,kd lowCtHlccntrdtiolllj(J} !l()

inc!fl(' :Ir!: cjicr;ding ill tv1(;xico I\S

Federal I VoL 61, No. 53 I Monday, March IB, 1996 I Rules and Regulations

record includes basic information

considered by the A gency in developing

the proposal. and now includes

information added .sinco the publication

of the proposed rule, including

comments on the proposed rule, a

transcript of the public hearing on the

rule, and reply comments on the

hearing. The following comments were

received on the proposed PCB

Exemptions Rule (Docket number

01'1''1'5-66019) and arc also included:

all comments and information received

from S.D. Myers, Inc.: Foley, Hoag &

Eliot; and Hogan & Hartson for Chern

Securities and Bovar. All of these

materials (Docket number OPPTS66009B) are available for inspection and

copying in the TSCA Nonconfidential

Information Center, Monday through

Friday (excluding holidays) from 12

noon to 4 p.m., in Room (;-102 (401 M

St., SW., Washington, DC). However,

any information claimed as CBI that is

a part of the record for this rulemaking

is not available for public review. A

public version, of the record, from which

information claimed as cm has been

excluded, is available for inspection.

The following Federal Register

Notices are included in the docket:

1. USEPA, 44 FR 31514, May 31,

1979, "Polychlorinated Biphenyls

(PCBs); Manufacturing, Processing,

Distribution in Commerce, and Use

Prohibitions: Final Rule."

2. USEI' A, 45 FR 29115, May I, 1980,

"Polychlorinated Biphenyls (PCB~);

Expiration of the Open Border Pohcy for

PCB Disposal: Notice."

3. USEPA, 54 FR 52176, December 21,

1989, "Polychlorinated Biphenyls;

Notification and Manifesting for PCB

Waste Activities: Final Rule." OPTS·

62059

4. USEPA, 55 FR 26204, June 27,

1990, "Polychlorinated Biphenyls;

Notification and Manifesting for PCB

Waste Activities: Correction to Final

Rule." 01''1'5·62059

5 USEPA, 57 FR 20602, May 13,

1992, "Hazardous Waste Management

System: Notification Concerning the

Basel Convention's Potential

Implications for Hazardous Waste

Exports and Iruport s: Notice."

G USEPA, 59 FR G271W, December 6,

1994, "Disposal of Polychlorinated

Biphenyls: Proposed Rule." OPPTSGG009A

7 lJSEP/\, 5~) FR G2fl75, December G,

1994, "Polychlorinated Biphenyls;

~A:lllU[:l(1II and

lii st r i i» t ion in C:CJI11I1H'CCC: I-r,rl>\ri'"''

[leu Dl1 (lfl ion !'dillOIIS

PruPI l!Il!li li'l

11104
1:1105

these facilities represent an increase in

U.S. capacity for PCB waste incineration

of nearly 50 percent in the last 3 years.

E.PA'ssurvey of the disposal industry in

support of this rule also indicates a large

capacity surplus. The existing unused

capacity appears sufficient such that

imports could be handled without

displacing domestic wastes or causing

U.S. prices to increase significantly. No

other notable domestic economic

impacts are forecast.

4. Other-economic impacts. The final

PCB import rule will have several

positive economic impacts. PCB waste

management companies indicated that

the rule will boost their industry and

create jobs in the United States. The

final PCB rule will not materially affect

productivity, competition, or Federal,

State, or local governments.

V. References

1. ERM-Mexico, Polychlorinated

Biphenyls (PCBs) in Mexico, Report for

the Commission for Environmental

Cooperation (Draft), August 1995, 48pp.

2. Ross Associates, Status of PCB

Management in the United States,

Report for Commission for

Environmental Cooperation, August 24,

1995.

3. Procter Redfern, Status of PCB

Management in Canada, Report for

Commission for Environmental

Cooperation (Draft Final Report),

September 1995, 26pp.

4. Letter from Lynn R. Goldman, M.D.

to the Honorable David M. Mcintosh,

Status of Import for Disposal Petitions

filed by S.D. Myers, Inc., September 26,

1993,2pp.

5. USEPA, Region 4, Public Health

and Environmental Exposure

Assessment (Draft), Unison PCB

Separation Facility Henderson County,

Kentucky, August 1986.

6. USEI'A, OAQPS, Deposition of Air

Pollutants to the Great Waters, First

Report to Congress, May 1994.

7. USEI'A, OAQPS, Identification of

Sources Contributing to the

Contamination of the Great Waters by

Toxic Compounds, March 17, 1993,

145pp.

8. USEI'A, OAQPS, Exposure and

Effects of Airborne Contamination for

the Great Waters Program Report,

December 22, 1992, 201pp.

9. USEPA, OAQPS, Relative

Atmospheric Loadings of Toxic

Contaminants and Nitrogen to the Great

Waters, March 15, 1993, 142pp.

10. USEPA, OPPT, RIA, Niskam

Agarwal, Economic Assessment for the

Pinal PCB Import Rule, February 23,

19,96,17 pp.

11. USEPA. OPPT, Dr. Williiun H.

Sanders, Letter to Dr. D.Sharma,

USDOT. December 18, 1995, 2pp.

12. U.S. Department of

Transportation, Letter from Dr. D.K.

Sharma to William H. Sanders. USEPA,

February 20, 1996, 2pp.

13. USEPA, OPPT, Response to

Comments on Proposal to Import PCBs

for Disposal (Docket 66009B). March 1,

1996.

VI. Regulatory Assessment

Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4,1993), it has been

determined that this regulatory action. is

not "significant" and therefore not

subject to review by the Office of

Management and Budget (OMB).

B. Regulatory Flexibility Act

As required by the Regulatory

Flexibility Act (5 U.S.c. 601 et seq.), the

Agency has considered whether this

regulatory action will have an adverse

economic impact on small entities. An

analysis of the potential impact on small

entities is present in the regulatory

flexibility analysis. which is included as

part of the Economic Assessment that

was prepared for this rulemaking. Based

on that analysis. EPA has determined

that this regulatory action does not

impose any adverse economic impacts

on small entities. Information relating to

this determination has been included in

the docket for this rulemaking.

C. Paperwork Reduction Act

The Office of Management and Budget

(OMB) has approved the information

collection requirements contained in

this rule under the provisions of the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq and has assigned OMB

control number 2070-0149 (EPA ICR

No. 1770.01).

Receipt by the U.S. of internationallygenerated PCB wastes under this rule

will increase the volume of PCBs that is

distributed in commerce, stored, and

disposed of by the U.S. disposal

industry. Advance knowledge of those

activities through the PCB waste import

notice will allow EPA to act on these

requests in a manner that will ensure

the national storage capacity for PCB

waste is not exceeded and that facilities

receiving such wastes are capable of

handling this material (e.g., the facility

has an EPA approval, adequate storage

capacity. and accepts liability for the

waste). Prior notice will also give EPA

the opportunity to ensure that such

imports are in compliance with

international law and obligations of the

United States.

. Data that are submitted to the Agency

will be used-by EPA to ensure an unreasonable risk of injury to health and

the environment will not ensue from the

respondents' PCB activities. The data

will also be made available to EPA

regional inspectors, or their agents, to

supplement their compliance efforts in

implementing the requirements/

conditions of the PCB regulations, The

prior notice of import requirements in

this rule will allow the Agency to

address the special liability concerns

inherent in the transboundary shipment

of PCB waste.

The public reporting and

recordkeeping burden for this collection

of information is estimated to average

134 hours per respondent annually, at

an annual cost of $5,468. EPA estimates

that 10 respondents will each file 12

notices annually, at an average burden

of 11 hours, $470, per response. Burden

means the total time, effort. or financial

resouret¥s 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:

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.

EPA is also amending the table of

currently approved information

collection request OCR) control numbers

issued by OMB for various regulations,

which appears at 40 CPR part 9. This

amendment updates the table to

accurately display OMB approval of the

information requirements contained in

this final rule. This display of the OMB

control number and its subsequent

codification in the Code of Federal

Regulations satisfies the requirements of

the Paperwork Reduction Act (44 U.S.c.

3501 et seq.) and OMB's implementing

regulations at 5 CF8, 1320.

The ICR was previously subject to

public notice and comment prior to

OMI3 approval. As a result, EPA finds

that there is "good cause" under section
11106 Federal I Vol. 61 No. 53 I March 18, 1996 I Rules and

Dated: March 8,1996.

Carol M. Browner,

Administrator.

Therefore, 40 CFR chapter I is

amended as follows:

PART 9 [AMENDED]

1. In part 9:

a. The authority citation for part 9

continues to read as follows:

A,uthority: 7 U.S.c. 135 et seq.. 136-136y;

15 U.S.c. 2001, 2003, 2005, 2006, 2601-2671;

21 U.S.c. 331j, 346a, 348; 31 U.S.C. 9701; 33

u.s.c, 1251 et seq., 1311. 1313d, 1314, 1321,

1326,1330,1344, 1345(d) and (e). 1361; E.G.

11735,38 FRZ1243, 3 CFR, 1971-1975 Comp.

p 973; 42 tJ.S.c. 241, 242b, 243, 246, 300[,

3OOg. 300g-1, 300g-2, 300g-3, 300g-4, 300g-5,

300g-6, 300j-l, 3OOj-2, 3OOj-3, 300j-4, 300j-9,

1857 et seq., 6901-6992k, 7401-7671q. 7542,

9601-9657,11023,11048.

b. Section 9.1 is amended by adding

the new entries to the table to read as

follows:

§ 9.1 OMB approvals under the Paperwork

Reduction Act

553(b)(B) of the Administrative

Procedure Act (5 U.S.C. 553(b)(B)) to

amend this table without prior notice

and comment. Due to the technical

nature of the table, further notice and

comment would be unnecessary.

D. Envirotuncntol lustice

According to Executive Order 12890

(59 FR 7629, February 16,1994), each

Federal Agency is required to "analyze

the environmental effects, including

human health, economic and social

effects, of Federal actions, including

effects on minority communities and

low-income communities...."

Accordingly, EPA examined the impact

of the PCB import rule on the

distribution of PCB management

activities relative to the socioeconomic

characteristics of the surrounding

communities.

EPA finds that the PCB import rule

does not directly affect the citing of PCB

management facilities; imported PCBs

will be managed at existing TSCAapproved facilities. Based on the PCB

import rule's lack of influence on siting

of new facilities, EPA concludes that the

PCB import rule does not create

environmental injustice.

E. Unfunded Mandates lloform Act and

Executive Order 12875

Pursuant to Title II of the Unfunded

Mandates Reform Act of 1995 (Pub. L.

104-4), EPA has determined that this

regulatory action does not contain any

"unfunded mandates," as described by

the Act, for State, local, or tribal

governments, or the private sector. In

addition, EPA has determined that this

action does not result in the expenditure

of $100 million or more by any State,

local, or tribal governments, or by

anyone in the private sector. The costs

associated with this action are described

in the Executive Order 12866 section

above.

Lists ofSubjects in 40 CFR Part 9

Environmental protection, Reporting

and recordkeeping requirements.

Lists ofSubjects in 40 CFR Part 761

Environmental protection, Hazardous

substances, Labeling, Polychlorinated

biphenyls, Reporting and rccordkeeping

requirements. * *

40 CFR citation

Polychlorinated Biphenyls (PCBs) Manufacturing, Processing, Distribution in Commerce, and

Use Prohibitions

761.93{a)(1 )(iii) .

761.93{b) ..

OMS control No.

2070-D149

207O-D149

PART 761 [AMENDED]

Z. In part 761:

a. The authority citation for part 761

continues to read as follows:

Authority: 15 u.s.c. 2605, 2607, 2611,

2614 and 261G.

b. In § 7613 by adding alphabetically

definitions for "Basel Convention,"

"Importer," and "Treatability study" to

read as follows:

Basel Convention means the Basel

Convonti on on the Control of

Transboundary Movements of

Hazardous Wastes and Their Disposal as

entered into force on May 5, 199Z. 1< • ",. * 11

Importer means any person defined as

an "importer" at § 7203(l) of this

chaptel' who imports !'CBs or PCB Items

and IS under the ict iou of the

United Stilll:S

Treatability Study means a study in

which PCB waste is subjected to a

treatment process to determine:

(1) Whether the waste is amenable to

the treatment process;

(2) What pretreatment (if any) is

required;

(3) The optimal process conditions

needed to achieve the desired treatment;

(4) The efficiency of a treatment

process for the specific type of waste

[i.e., soil, sludge, liquid, etc); or,

(5) The characteristics and volumes of

residuals from particular treatment

process. A "treatability study" is not a

mechanism to commercially treat or

dispose of PC:I3 waste. Treatment is a

form of disposal under this part.

In § '7(i1 20 by re visinp the first twu

';enlences of tlu: I tex},

llilr;)('rilllllS (ill ;uHi (c)(:1) to 1'(,,\\1

§ 761.20 Prohibitions.

Except as authorized in § 761.30, the

activities listed in paragraphs (a) and (d)

of this section arc prohibited pursuant

to section 6(e)(Z) of TSCA. The

requirements set forth in paragraph (c]

of this section and subpart F of this part

concerning export and import of PCBs

and PCB Items for disposal are

established pursuant to section 6(e)(1) of

TSCA.' • •

(b) No person may manufacture PCBs

for use withi n the United States or

manufacture PCBs for export from the

United States without an exemption,

except that: an exemption is not

required for PCBs manufactured in an

excluded manufacturing process as

defined In § 7fl13. provided all

ppliciibk conditions of § 7fl1 l(f) are

111"1.

( )
Federal Register I Vol. 61, No. 53 I Monday, March 18, 1996 I Rules and Regulations 11107

• •

Applicability.

Import for Disposal.

Export for Disposal.

(3) PCBs and PCB Items may be

exported for disposal in accordance

with the requirements of subpart F of

this part. • • • • • d. In § 761.60 by revising paragraph

(h) to read as follows: .

§ 761.60 Disposal requirements.

(h) Requirements for export and

import of PCBs and PCB Items for

disposal are found in Subpart F of this

part, "'" 'It 'It 'It

e. By adding a new Subpart F to read

as follows:

Subpart F-Transboudary Shipments of

PCBs for Disposal

Soc.

761.91

761.93

761.97

SUbpart F-Transboundary Shipments

of PCBs for Disposal

§ 761.91 Applicability.

This subpart establishes requirements

under section 6 ofTSCA applicable to

the transboundary shipments of PCBs

and PCB Items into and out of the

United States for disposal. Nothing in

this subpart is intended to obviate or

otherwise alter obligations applicable to

imported or exported PCBs and PCB

Items under foreign laws, international

agreements or liITangements, other

United States statutes and regulations,

other sections ofTSCA (e.g., sections 13

and 14), or laws ofthe various States of

the United States. No provision of this

section shall be construed to affect or

limit the applicability of any

requirement applicable to transporters

of PCB waste under regulations issued

by the U.S. Department of

Transportation (DOT) and set forth at 49

CFR parts 171-180.

§ 761.93 Import for disposal.

(a) General provisions. (1) No person

may import PCBs or PCB Items for

disposal without an exemption. except

that:

(i) PCBs and PCB Items at

concentrations less than 50 ppm may be

imported for disposal.

[ii) PCBs and PCB Items at

concentrations of 50 ppm or greater may

be imported from United States

territories or possessions outside the

customs territory of the United States

into the customs territory of the United

States for disposal.

(iii) PCBs and PCB Items at

concentrations of 50 ppm or greater.

other than those described in paragraph

(a)(1)(ii). may be imported for disposal

pursuant to paragraph (b) of this section.

[iv] PCBs and PCB Items at

concentrations of 50 ppm or greater may

be imported for analysis and disposal

pursuant to paragraph (c) of this section.

(v) PCBs and PCB Items at

concentrations of 50 ppm or greater may

be imported for evaluation of disposal

technologies for PCB waste pursuant to

paragraph (d) of this section.

(2) For purposes of paragraph (a)(1) of

this section, PCBs and PCB Items of

unknown concentrations shall be

treated as if they contain 50 ppm or

greater.

(3) All imports of PCBs and PCB Items

at any concentration under paragraph

(a)(1) of this section must be in

compliance with all international

agreements or arrangements that the

United States has entered into

applicable to PCB waste imports. The

United States retains the authority to

disallow any PCB waste import not in

compliance with these agreements or

arrangements, or other international

obligations of the United States.

(b) PCBs and PCBItems. PCBs and

PCB Items at concentrations of 50 ppm

or greater may beimported for disposal

under paragraph (a)(l)(iii) of this section

only by a person who is an approved

commercial storer or disposer under

subpart 0 of this part, and only if a PCB

waste import notice is submitted to EPA

pursuant to this I?aragraph.

(1) PCB waste import notice. (i) PCB

waste import notices under this

paragraph must besubmitted to EPA in

writing. The complete PCB waste import

notice must be received by EPA at the

mailing address or delivery address set

forth in this paragraph at least 45 days

prior to the date on which the initial

shipment enters the United States. Each

notice shall be clearly marked "PCB

Waste Import Notice" and shall be sent

by certified mail to: Attn: PCB Waste

Import Notice. Office of Enforcement

and Compliance Assurance. Office of

Compliance (2222A). U.S.

Environmental Protection Agency. 401

M si.. SW.. Washington, DC 20460.

Alternately, notices may be delivered by

courier to the same office at the Ariel

Rios Building. room 5124. 1200

Pennsylvania Ave.• NW., Washington.

DC 20004.

(ii) Each PCB waste import notice may

cover an individual shipment or a series

of shipments extending over a period up

to 12 months beginning with the date on

which the initial shipment enters the

United States. A new notice must be

received by EPA every 12 months if

import for disposal will continue. A

new notice must also be received by

EPA at any time that import will deviate

from the terms described in the prior

notir:«. at least 45 days before the

activity constituting the deviation

begins. Such notices should indicate

that the notice is a revision, and

indicate what information has changed.

(iii) Each PCB waste import notice

shall contain the following information:

(A) Company name. name of a contact

person. address. telephone number.

facsimile (FAX) number, and EPA

identification number of the importer of

PCB waste.

(B) Company name. name of contact

person. address (including country),

telephone number. and facsimile (FAX)

number of the foreign generator,

countries of transit (If any), port of entry

in the United States. find method of

transportation.

(C) Types of PCBs arid PCB Items to

be imported (e.g.• transformers.

capacitors. oil, soil). PCB concentrations

of each type of PCB or PCB Items,

number and frequency ofshipments,

maximum shipment size, and maximum

total quantity to be imported during the

designated import period.

(DJ Projected dates of shipments, and

period of time intended for import

activities addressed by the notice (not to

exceed 12 months).

(E) Name, contact name, address,

telephone number, facsimile (FAX)

number, and J<;PA Identification Number

of each TSCA-approved commercial

storage and disposal facility where the

PCB waste will be stored and disposed

of.

(F) Written certification from each

TSCA-approved commercial storage or

disposal facility identified in paragraph

(b)(l)(iii)(E) of this section, including

the importer. indicating that each

facility has agreed to accept the

shipments of PCBs or PCB Items; has

approval to store or dispose of PCB

waste under subpart D of this part; has

sufficient storage capacity available for

imported PCB waste; and until March

18, 1999. will not exceed the 70%

capacity limit imposed on imported

PCB waste under paragraph (b)(2)(i) of

this paragraph.

(G) Written certification from the

importer. stating: "I certify that I am a

TSCA-approved commercial storer

(disposer) of PCB waste. and that I

accept complete financial liability for

the transportation. storage. and disposal

of all PCBs and PCB Items imported into

the United States under this notice."

(H) Written certification pursuant to

§ 761.185(e). signed by the importer

identified in paragraph (b)(1)(iii)(A) of

this section, indicating that the

information in the notice is complete

and accurate.

(iv) Some of the information required

to be submitted in a pen waste import

notice may also l)(~ rcqu ired to be
submitted to EPA pursuant to certain

international agreements. With the

exception of information required by

paragraphs (b)(l)(iii)(F). (G). and (H) of

this section, importers may elect to

include information in the PCB waste

import notice using the same form

submitted under the international

agreement provided the form contains

the information required by paragraphs

(b)(l)(iii)(A)-(E) of this section. Under

all circumstances. the specific

certifications required by paragraphs

(b)(1)(iii)(F). (G), and (II) of this section

must be included in each PCB waste

import notice.

(v) Notwithstanding the submission of

a PCB waste import notice pursuant to

this subpart, EPA' reserves the right to

refuse entry into the United States of

individual shipments of PCBs or PCB

Items that do not comply with

applicable Federal laws and regulations.

EPA also reserves the right to bring an

enforcement action against an importer

whose past import of PCBs or PGB Items

does not comply with applicable

Federal laws or regulations.

(vi) Submission of a PCB waste import

notice under paragraph (b)(1)(i) of this

section does not replace or satisfy other

import notice or consent requirements

of applicable international agreements

or arrangements, of the Resource

Conservation and Recovery Act (RCRA),

of other Federal statutes, or ofTSCA

section 13 (see 40 CFR 707.20).

(vii) Confidential business

information. (A) EPA believes that the

information requested in PCB waste

import notices generally will not be

entitled to be treated as confidential

business information (CBl) pursuant to

section 14 ofTSCA. However, a person

submitting a PCB waste import notice

may claim as CBI information the

person believes to be entitled to

confidential treatment under TSCA

section 14 and part 2 of this chapter. If

110 claim is made at the time the notice

is submitted, the information in the

notice shall be available to the public

without further notice to the submitter.

If cm claims are made, such claims

shall be rnade by marking the specific

information in the notice that is claimed

CIlL In addition each claim should be

accompanied, at the time the claim is

made, by a written justification

substantiating each item of the claim

pursuant to 40 CFI{ 2.204(e). In

accordance with the procedures set

forth in TSCA and part 2 of this chapter,

EPA will routinely request such

substantiation from the importer if it

does not accorn pan y the claim of

con fi den tia lit>'.

(Il) /\ny r.la irn of confidentiality shall

nccornpany thc PC:U waste import nour:o

11108 Federal / Vol. 61 No. 53 / March 18, 1996 / Rules and Regulations

at the time it is submitted 10 EPA. The

importer shall submit two copies of

each PCB waste import notice if a claim

of confidentiality is made.

(1) One copy of the notice shall

contain all informatlon required in

paragraph (b)(l)(iii) of this section. In

this copy of the notice, the submitter

must clearly highlight or mark the

specific items claimed as confidential

on each page, and identify each item

with the label "TSCA Confidential

Business Information." This notice shall

be double wrapped, and the inside

envelope marked "PCB Waste Import

Notice--CBl Claimed." The outside

envelope shall be addressed to: TSCA

Document Processing CCnter(7407),

Office of Pollution Prevention and

Toxics, U.S. Environmental Protection

Agency, 401 M si.. SW., Washington,

DC 20460. Substantiation ofCBl claims

should be sealed inside the inner

envelope and submitted with this cory'

(2) The other copy shall contain al

information required in paragraph

(b)(l)(iii) of this section, except that all

information claimed as confidential in

the first copy must be deleted. This

copy must be sent to the address

indicated in (b)(1)(i) of this section.

(3) If the importer claims any

information in the PCB waste import

notice as CBl, the PCB waste import

notice is not considered complete for

purposes ofthis paragraph until both

copies and the written substantiation

are received by EPA.

(2) Storage and disposal. Imports of

PCBs and PCB Items under paragraph

(a)(l)(iii) of this section are subject to

the following conditions, in addition to

all other applicable provisions of this

part.

(i) No facility that stores or disposes

of imported PCB waste shall store at any

time a combined quantity of imported

PCB waste from all sources in excess of

70% of the facility's approved

maximum PCB storage capacity.

pursuant to § 76L65(d)(4)(iii). This limit

on the acceptance of imported PCB

waste shall expire on March 111, 1999.

[ii] All PCBs and PCB Items imported

for disposal under paragraph (a)(l)(iii)

of this section are PCB wastes subject to

40 CFR part 761, subpart 0 and:

(A) Shall be stored and disposed of in

facilities which have approval under

subpart 0 of this part to store or dispose

of the type of PCB waste being

imported.

(B) Shall be marked in accordance

with subpart C of this part, and

packaged and stored in accordance with

subpart D of this part.

(el For purposes of comphance with

the 1 storage for limit

under 7GLG5(n). tho date of rc mo va l

from service for disposal for imported

PCB waste shall be whichever of the

following dates occurs first:

(1) The date the PCB waste enters the

contiguous 48 States.

(2) The date the PCB waste enters any

State, if the PCB waste will be disposed

of in that State.

(3).The date the PCB waste enters a

State outside the contiguous 48 States,

if the PCB waste is stored in that State

for a period of more than 10 consecutive

days.

(3) Hecordkeeping and manifesting. (i)

Importers, storers, and disposers of

imported PCBs and PCB Items under

paragraph (a)(l)(iii) of this section shall

meet the requirements of subpart Jof

this part, with the following

modifications:

(A) An importer who is not the initial

commercial storer or disposer of the

imported PCB waste is considered to be

the generator for purposes of

maintaining annual records under

§ 761.180(a); the annual document log

maintained under § 761.180(a)(2) must

clearly distinguish between imported

and domestically generated waste.

(D) Disposers and commercial storers

of PCB waste must clearly distinguish

between imported and domestically

generated waste in the annual document

log maintained under § 761.180(b)(2),

and in the annual report submitted to

EPA under § 761.180(b)(3).

[ii] Importers, storers, and disposers

of PCBs and PCBItems under paragraph

(a)(l)(iii) of this section shall meet the

requirements of subpart K of this part,

with the following modifications:

(A) Imported PCB waste shall be

manifested, even in cases where the

importer does not relinquish control of

the shipment.

(B) Imported PCB waste shall be

manifested separately from domestic

PCB waste.

(C) In place of the generator's name,

address and EPA identification number

on the manifest. the name and address

of the foreign generator and the

importer's name, address and EPA

identification number shall be used.

(0) In place of tho generator's

signature on the manifest certification

statement, the importer shall sign and

date the certification and obtain the

signature of the initial transporter.

(E) The importer shall comply with all

other requirements of subpart K of this

part which apply to the generator.

(F) The date of removal from service

for disposal shall be determined

according to (1))(2)(ii)((:) of

this section.

(cl PCB FeUs and

FC:llltems at conccntmtiol)s of ppm

or gr(:Hlor rnay In) into th«
Federal Register I Vol. 61, No. 53 I Monday, March ,18. 1996 I Rules' and Regulations 11109

United States by a laboratory.

commercial storer or disposer of PCB

waste under paragraph (a)(l)(iv) of this

section, without prior notification, for

purposes of chemical analysis to

determine the physical and chemical

properties of the PCBs and PCB Items.

provided:

(1) Quantities of PCBs and PCB Items

imported by an individual facility shall

not exceed 200 kilogrliIllS annually for

non-liquids, and 25 liters annually for

liquids; individual samples cannot

exceed 5 kilograms for non-liquids or 25

milliliters for liquids.

(2) Unused and residual PCB waste

remaining after analytical use is

completed shall be marked, stored,

manifested. and disposed ofin

accordance with subparts C, D, and K of

this part.

(3) PCB waste is handled by

laboratories in compliance with

§ 761.65(i).

(4) A TSCA PCB commercial storage

approval is required for each laboratory,

unless a total volume of no more than

500 gallons (1.89 cubic meters) of PCB

waste is in storage at anyone time.

(d) Treatability studies. PCBs and PCB

!lems at concentrations of 50 ppm or

greater may be imported into the United

States under paragraph (a)(l)(v) of this

section, without prior notification. for

purposes of evaluating the effectiveness

of a disposal technology. prOVided:

(1) The importer receiving the PCB

waste is an approved disposer of PCB

waste under 40 CFR part 761, subpart D.

(2) The quantity of PCB waste

imported annually to a disposal facility

does not exceed a total volume of 500

gallons.

(3) The imported PCB waste does not

exceed a concentration of 10,000 ppm

PCBs, and no more than 1 kilogram total

of,pure PCBs is imported annually.

(4) PCB waste imported under this

paragraph must be marked, stored. and

manifested in accordance with subparts

C and K ofthis part. and must comply

with paragraphs (b)(2)(ii) and (b)(3) of

this section.

(5) PCB waste imported undor this

paragraph. including residues from any

treatability study. must be disposed of

in accordance with the terms and

conditions of the TSCA' disposal

approval for,the facility performing the

treatability study.

§ 761.97 Export for disposal.

(a) General provisions. No person may

export PCBs or PCB Items for disposal

without an exemption. except that:

(1) PCBs and PCB Items at

concentrations less than 50 ppm may be

exported for disposal.

(2) (Reserved)

(b) (Reserved)

[FR Doc. 96-6448 Filed 3-15-96; 8:45 am]

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