[Federal Register Volume 65, Number 212 (Wednesday, November 1, 2000)]
[Proposed Rules]
[Pages 65654-65660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27971]



[[Page 65653]]

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Part VIII





Environmental Protection Agency





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40 CFR Part 761



Polychlorinated Biphenyls (PCB's); Return of PCB Waste From U.S. 
Territories Outside the Customs Territory of the United States; 
Proposed Rule

Federal Register / Vol. 65, No. 212 / Wednesday, November 1, 2000 / 
Proposed Rules

[[Page 65654]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 761

[OPPTS-66020; FRL-6750-6]


Polychlorinated Biphenyls (PCB's); Return of PCB Waste from U.S. 
Territories Outside the Customs Territory of the United States

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed Rule.

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SUMMARY:  EPA is proposing to clarify that PCB waste in United States' 
territories and possessions outside the customs territory of the United 
States may be returned to the U.S. Customs Territory for proper 
disposal. This proposed rule interprets the prohibition on the 
manufacture of PCBs at Section 6(e) of the Toxic Substances Control Act 
(TSCA) to allow the movement of PCB waste among any States of the 
United States for the purpose of disposal, and that such movement is 
not considered ``import.'' This interpretation will allow U.S. 
territories and possessions which fall outside of the definition of 
``customs territory of the United States'' to dispose of their PCB 
waste in the mainland of the United States where facilities are 
available that can properly dispose of PCB waste. Thus, this rule would 
ensure that a safe and viable mechanism exists for the protection of 
health and the environment for those citizens in areas of the United 
States where facilities are not available for the proper management and 
disposal of PCB waste. Because disposal of these wastes may occur only 
at approved facilities, no unreasonable risks to health or the 
environment on the mainland United States will be created by this rule.

DATES:  Comments, identified by the docket number OPPTS-66020, must be 
received by EPA on or before December 1, 2000.

ADDRESSES:  Comments may be submitted by mail, electronically, or in 
person. Please follow the detailed instructions for each method as 
provided in Unit I. of the SUPPLEMENTARY INFORMATION section. To ensure 
proper receipt by EPA, it is imperative that you identify docket 
control number OPPTS-66020 in the subject line on the first page of 
your response.

FOR FURTHER INFORMATION CONTACT:  For general information contact: 
Barbara Cunningham, Acting Director, Environmental Assistance Division, 
Office of Pollution Prevention and Toxics (7408), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; 
telephone numbers: 202-554-1404; e-mail address: <a href="/cdn-cgi/l/email-protection#cf9b9c8c8ee287a0bba3a6a1aa8faabfaee1a8a0b9"><span class="__cf_email__" data-cfemail="2d797e6e6c00654259414443486d485d4c034a425b">[email protected]</span></a>.
     For technical information contact: Peggy Reynolds, OPPT/NPCD, 
7404, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: 202-260-3965; fax number: 202-
260-1724; e-mail address: <a href="/cdn-cgi/l/email-protection#2e5c4b574041424a5d005e4b4949576e4b5e4f00494158"><span class="__cf_email__" data-cfemail="304255495e5f5c54431e4055575749705540511e575f46">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you are in a 
United States territory or possession outside of the customs territory 
of the United States, and you manufacture, process, distribute in 
commerce, or use PCBs. Examples of such territories and possessions are 
Guam, American Samoa, the Commonwealth of the Northern Mariana Islands 
(CNMI) including Saipan, and the United States Virgin Islands. 
Potentially affected entities may include, but are not limited to:

 
------------------------------------------------------------------------
                                                 Examples of potentially
        Types of entities          NAICS codes      affected entities
------------------------------------------------------------------------
Crude Petroleum and Natural Gas         211111  Facilities that own
 Extraction                                      electrical equipment
                                                 containing PCBs
Electric Power Generation;                2211  Facilities that own
 Transmission and Distribution                   electrical equipment
                                                 containing PCBs
Food Manufacturing                         311  Facilities that own
                                                 electrical equipment
                                                 containing PCBs
Petroleum and Coal Products                324  Facilities that own
 Manufacturing                                   electrical equipment
                                                 containing PCBs
Chemical Manufacturing                     325  Facilities that own
                                                 electrical equipment
                                                 containing PCBs
Primary Metal Manufacturing                331  Facilities that own
                                                 electrical equipment
                                                 containing PCBs
Waste Treatment and Disposal              5622  Facilities that own
                                                 electrical equipment
                                                 containing PCBs.
                                                 Entities that process
                                                 and distribute PCB
                                                 waste
Materials Recovery Facilities            56292  Facilities that own
                                                 electrical equipment
                                                 containing PCBs.
                                                 Entities that process
                                                 and distribute PCB
                                                 waste
Public Administration                       92  Agencies that own
                                                 electrical equipment
                                                 containing PCBs
------------------------------------------------------------------------

    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed above could also be 
affected. The North American Industrial Classification System (NAICS) 
codes have been provided to assist you and others in determining 
whether or not this action might apply to certain entities. To 
determine whether you or your business may be affected by this action, 
you should carefully examine the applicability provisions in 40 CFR 
part 761. If you have any questions regarding the applicability of this 
action to a particular entity, consult the technical person listed in 
the FOR FURTHER INFORMATION CONTACT section.

 B. How Can I Get Additional Information, Including Copies of this 
Document and Other Related Documents?

    1. Electronically. You may obtain copies of this document and 
certain other available documents from the EPA Internet Home Page at 
http//:www.epa.gov/. On the Home Page select ``Laws and Regulations'' 
and then look up the entry for this document under Federal Register--
Environmental Documents. You can also go directly to the Federal 
Register listings at http//:www.epa.gov/fedrgstr/.
    Information about the Office of Prevention, Pesticides and Toxic 
Substances (OPPTS) and OPPTS related programs is available from http//
:www.epa.gov/internet/oppts/. If you want additional information about 
EPA's PCB regulations at 40 CFR part 761, go to http//:www.epa.gov/pcb.
    2. In person. The Agency has established an official record for 
this action under docket control number OPPTS-66020. The official 
record consists of the documents specifically referenced in this 
action, any public comments received during an applicable

[[Page 65655]]

comment period, and other information related to this action, including 
any information claimed as confidential business information (CBI). 
This official record includes the documents that are physically located 
in the docket, as well as the documents that are referenced in those 
documents. The public version of the official record does not include 
any information claimed as CBI. The public version of the official 
record, which includes printed, paper versions of any electronic 
comments submitted during an applicable comment period, is available 
for inspection in the TSCA Nonconfidential Information Center, 
Northeast Mall, Rm. B-607, Waterside Mall, 401 M St., SW., Washington, 
DC. The Center is open from 12 noon to 4 p.m., Monday through Friday, 
excluding legal holidays. The telephone number of the Center is (202) 
260-7099.

 C. How and to Whom Do I Submit Comments?

    You may submit comments through the mail, in person, or 
electronically. To ensure proper receipt by EPA, it is imperative that 
you identify docket control number OPPTS-66020 in the subject line on 
the first page of your response.
    1. By mail. Submit your comments to: Document Control Office 
(7407), Office of Pollution Prevention and Toxics (OPPT), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460.
    2. In person or by courier. Deliver your comments to: the OPPT 
Document Control Office (DCO) in East Tower Rm. G-099, Waterside Mall, 
401 M St., SW., Washington, DC. The DCO is open from 8 a.m. to 4 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the DCO is 202-260-7093.
    3. Electronically. You may submit your comments electronically by 
E-mail to: <a href="/cdn-cgi/l/email-protection#84ebf4f4f0aaeae7ede7c4e1f4e5aae3ebf2"><span class="__cf_email__" data-cfemail="6a051a1a1e44040903092a0f1a0b440d051c">[email protected]</span></a>, or mail or deliver your computer disk to 
the addresses identified above. Do not submit any information 
electronically that you consider to be CBI. E-mailed comments must be 
submitted as an ASCII file avoiding the use of special characters and 
any form of encryption. Comments will also be accepted on standard 
computer disks in WordPerfect 689 or ASCII file format. All comments in 
electronic form must be identified by the docket control number OPPTS-
66020. Electronic comments may also be filed online at many Federal 
Depository Libraries.

 D. How Should I Handle CBI That I Want to Submit to the Agency?

    Do not submit any information electronically that you consider to 
be CBI. You may claim information that you submit to EPA in response to 
this document as CBI by marking any part or all of that information as 
CBI. Information so marked will not be disclosed except in accordance 
with procedures set forth in 40 CFR part 2. In addition to one complete 
version of the comment that includes any information claimed as CBI, a 
copy of the comment that does not contain the information claimed as 
CBI must be submitted for inclusion in the public version of the 
official record. Information not marked confidential will be included 
in the public version of the official record without prior notice. If 
you have any questions about CBI or the procedures for claiming CBI, 
please consult the technical person identified in the FOR FURTHER 
INFORMATION CONTACT section.

 II. Background

A. What Action is the Agency Taking?

    EPA proposes to amend the disposal regulations at 40 CFR 761.99 to 
allow certain PCB waste located anywhere in the United States, 
including the territories and possessions of the United States that are 
not inside the customs territory of the United States (hereafter 
``territories and possessions''), to be moved to any area within the 
United States for disposal. The proposed rule would clarify that such 
movement is not considered ``import'' for purposes of the ban on 
manufacturing PCBs under TSCA section 6(e)(3).

B. What is the Agency's Authority for Taking this Action?

    EPA is taking this action to clarify its interpretation of the TSCA 
provisions relating to the manufacture of PCBs as an exercise of the 
agency's inherent authority to issue regulations interpreting the 
statutes it administers. This proposed regulation would codify EPA's 
interpretation of an undefined term, ``import'' in the definition of 
``manufacture'' under section 3(7) of TSCA, for purposes of section 
6(e)(3) of TSCA. EPA's definition of the term ``import'' for all other 
purposes under TSCA is not affected.

 III. Summary of the Proposed Action

A. What Risks do PCBs Present and How are PCBs Regulated?

    PCBs cause significant ecological and human health effects, 
including cancer, neurotoxicity, reproductive and developmental 
toxicity, immune system suppression, liver damage, skin irritation, and 
endocrine disruption (Ref. 1). EPA has found that any exposure of 
humans or the environment to PCBs may be significant, depending on such 
factors as the quantity of PCBs involved in the exposure, the 
likelihood of exposure to humans and the environment, and the effect of 
exposure (40 CFR 761.20). PCBs are readily absorbed through the skin 
and at even faster rates when inhaled. Because PCBs are stored in 
animal fatty tissue, humans are also exposed to PCBs through ingestion 
of animal products. Significantly, bioaccumulated PCBs appear to be 
even more toxic than those found in the ambient environment, since the 
more toxic PCB congeners are more persistent and thus more likely to be 
retained (Ref. 1).
    Under section 6(e) of the Toxic Substances Control Act (TSCA), 15 
U.S.C. 2605(e), and implementing regulations at 40 CFR part 761, the 
manufacture, processing, and distribution in commerce of PCBs are 
banned unless EPA issues a regulatory exemption to the ban. The ban on 
manufacture of PCBs was designed to prevent the creation or 
introduction to the United States of new PCBs, and it has been largely 
successful. Use of PCBs is banned except in a totally enclosed manner 
or as authorized by rule based on a finding that the use will not pose 
an unreasonable risk to human health or the environment. Disposal of 
PCBs is strictly controlled to minimize release to the environment. By 
enacting TSCA section 6(e), Congress established a presumption that 
PCBs pose an unreasonable risk of injury to health and the environment. 
See, Central and Southwest Services, et al. v. EPA, 220 F.3d 683, 688 
(5th Cir. 2000).
    Before the statutory ban was enacted in 1976, PCBs were widely used 
in industrial applications, particularly as insulating fluids in 
electrical equipment. Utilities and other industries lawfully 
manufactured and sold items such as PCB electrical equipment and 
hydraulic or heat transfer equipment. After TSCA's general bans on 
manufacture, processing, distribution in commerce, and use of such 
items went into effect, EPA authorized the continued use of much of 
this equipment subject to conditions that protect against an 
unreasonable risk to health or the environment from the PCBs in the 
equipment. As these items reach the end of their useful lives, the 
owners are responsible for disposing of them following the stringent 
requirements of 40 CFR part 761. Any PCBs that are released from the 
equipment also must

[[Page 65656]]

be disposed of following these requirements.
    TSCA was enacted to protect all of the citizens of the United 
States from unreasonable risk of injury to health or the environment 
from exposure to chemical substances. TSCA sections 3(13) and 3(14) 
define ``United States'' to include ``any State of the United States, 
the District of Columbia, the Commonwealth of Puerto Rico, the Virgin 
Islands, Guam, the Canal Zone, American Samoa, the Northern Mariana 
Islands, or any other territory or possession of the United States.'' 
Thus, the prohibitions and restrictions on PCBs under TSCA section 6(e) 
and its implementing regulations protect not only United States 
citizens in the 50 States, but United States citizens in all the 
territories and possessions of the United States. PCBs in the 50 States 
and in the territories and possessions must be managed and disposed of 
in a manner that does not present an unreasonable risk to health or the 
environment.

 B. What Special Problems Do PCBs Present in the Territories and 
Possessions?

    PCBs and PCB waste in the territories and possessions pose an 
especially great environmental threat. The territories and possessions 
have no permitted commercial PCB disposal facilities, so PCB waste is 
accumulated in long-term storage. Many of the territories and 
possessions are subject to frequent typhoons and earthquakes, which can 
severely damage storage areas and other buildings. PCBs and PCB waste 
in storage therefore may present a greater risk to human health and the 
environment than PCBs stored in the mainland United States (Ref. 8).
    Between 1945 and 1990, within 180 nautical miles of Guam, there 
were 118 tropical storms (wind speed 40 to 72 mph), 36 typhoons (wind 
speed 75 to 149 mph), and 8 super-typhoons (wind speed 150 mph or 
more). Between 1973 and 2000, Guam has seen an average of 18 
earthquakes a year within a 100 kilometer radius. During the last 10 
years, 12 earthquakes of magnitude 5 or higher have occurred within a 
50 kilometer radius of Guam. The Commonwealth of the Northern Marianas 
Islands is 120 miles from Guam and shares similar geologic 
characteristics, so the risks would be similar (Ref. 8).
    The Samoas lie squarely within the South Pacific's notorious 
cyclone belt. In American Samoa, Cyclone Tusi caused extensive damage 
to property, vegetation, and wildlife in 1987. Cyclones occur, on 
average, every 10 to 15 years, but in the early 1990s, the Samoas were 
devastated by two of the strongest and most destructive storms on 
record. Cyclone Ofa struck in February, 1990, bringing winds of up to 
250 kilometers per hour, killing 16 people and leveling much of the 
island of Savai'i. In 1991, Cyclone Val pummeled the islands for 5 days 
with winds up to 260 kilometers per hour and waves of up to 25 meters 
in height. Although the storm destroyed nearly three times as much as 
its predecessor, the death toll was the same. Total damage was 
estimated at $380 million (Ref. 8).
    PCBs that are released to the environment in the territories and 
possessions, through natural disasters or other events, can present 
significant exposure risks to residents of these areas. Many island 
residents consume fish for subsistence, and PCBs bioaccumulate in fish. 
In addition, island natural resources are severely limited and 
therefore vulnerable. Even a small quantity of PCBs seeping into the 
groundwater system could permanently eliminate an island's only source 
of clean drinking water (Ref. 8).
    Disposal of PCBs in the territories and possessions presents a 
special challenge. Most PCBs that are regulated for disposal must be 
disposed of in a TSCA-approved facility, such as an incinerator or a 
chemical waste landfill (40 CFR part 761, subpart D). However, as noted 
above, there are no TSCA-approved commercial PCB disposal facilities in 
any of the territories or possessions of the United States (Ref. 6), so 
disposal in the territory or possession where the waste is generated is 
not possible in most cases. A recent survey of the status of PCB waste 
in the territories and possessions shows that, because of the lack of 
disposal options, PCB wastes have been placed in storage awaiting 
disposal in facilities that are not approved commercial storage 
facilities under TSCA. In some cases, spills or releases from these 
facilities are inadequately controlled, presenting risks to health and 
the environment (Ref. 8).
    The territories and possessions cannot dispose of their waste at 
facilities outside the United States if the PCB concentration is 
<gr-thn-eq>50 ppm because EPA regulations prohibit the export for 
disposal of such waste (see 40 CFR 761.97). Moreover, it is a violation 
of the PCB regulations to dilute PCB wastes to lower concentrations to 
avoid these restrictions on export (40 CFR 761.1(b)(5)). Even if such 
export were not prohibited, it is not clear that export would be a 
viable option. Even assuming that foreign countries would be willing to 
accept PCB waste from the United States, there is some uncertainty 
about the disposal capacity at foreign disposal sites capable of 
managing PCBs (Ref. 17). Furthermore, EPA disfavors disposing of PCB 
wastes generated in the United States in other countries.
    The only remaining disposal option for most TSCA-regulated PCB 
waste in the territories and possessions is disposal in one of the 
TSCA-approved facilities in the mainland United States. However, EPA 
has historically interpreted TSCA in a way that made this option 
unavailable. Since 1979, TSCA section 6(e) has banned the manufacture 
of PCBs except under an exemption issued by rulemaking. TSCA section 
3(7) defines ``manufacture'' to include ``import into the customs 
territory of the United States (as defined in general note 2 of the 
Harmonized Tariff Schedule of the United States).'' General note 2 
defines the ``customs territory of the United States'' as ``any State 
of the United States, the District of Columbia, and Puerto Rico.'' 
Thus, any movement of PCBs from a location outside the customs 
territory of the United States to a location inside the customs 
territory could be considered to be an import of PCBs into the customs 
territory of the United States. Since most of the territories and 
possessions, such as Guam and American Samoa, are not included within 
the definition of ``customs territory of the United States'' as found 
in the Harmonized Tariff Schedule, EPA has historically interpreted a 
movement of PCBs from one of these areas to a mainland State to be an 
``import'' within the meaning of ``manufacture'' as it is used in TSCA 
section 6(e)(3). EPA has in the past exercised limited discretion to 
allow the movement of PCB waste from U.S. territories and possessions 
to the mainland United States (Ref. 15).

 C. How Would This Proposed Rule Address Disposal of PCBs in the 
Territories and Possessions?

    EPA proposes to amend its regulations to allow the movement of PCB 
waste for disposal among any States of the United States, as defined in 
TSCA sections 3(13) and 3(14), regardless of whether the waste enters 
or leaves the customs territory of the United States, provided that the 
PCBs [or the PCB waste] were present in the United States on January 1, 
1979, when the ban on manufacturing took effect, and have remained 
within the United States since that date. EPA would not consider these 
movements to be imports subject to the ban on manufacturing under TSCA 
sections 3(7) and 6(e)(3)

[[Page 65657]]

    As noted above, the territories and possessions are subject to all 
of TSCA's requirements. EPA is charged with implementing section 6(e) 
to protect the health and environment of all United States citizens, 
including the residents of the territories and possessions. To 
interpret the statute as prohibiting the movement of PCB waste from the 
territories and possessions to disposal facilities in the United States 
mainland puts the residents of the territories and possessions at a 
serious disadvantage compared to residents of areas that fall within 
the definition of the customs territory. Because there are no EPA-
approved commercial PCB storage or disposal facilities outside the 
customs territory, and because of the unique environmental conditions 
in the territories and possessions, the Unites States citizens of these 
areas are subject to a higher likelihood of exposure to PCBs, and thus 
a higher risk of injury.
    Moreover, EPA is particularly concerned about the risks from 
improper disposal of PCBs wherever it may occur. PCBs are persistent in 
the environment and can become dispersed world-wide. Research 
supporting EPA's report to Congress, Deposition of Air Pollutants to 
the Great Waters (Refs. 2, 3, 4 and 5), indicates that up to 89% of the 
PCB loading for Lake Superior occurs through air deposition, much of it 
from distant sources. Figures 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 PCBs in approved 
United States facilities poses less risk of injury to health or the 
environment in the United States than the continued presence of PCBs in 
the territories and possessions, since proper disposal in this country 
provides protection against possible hazards from improper disposal 
elsewhere.
    EPA is also concerned that the only options currently available for 
handling PCBs in the territories and possessions may violate the 
requirements of TSCA and its implementing regulations. Indefinite 
storage of PCB waste is not lawful under EPA's regulations at 40 CFR 
761.65. Disposal in a facility that is not EPA-approved would also 
violate the regulations. As noted above, shipment of any wastes 
containing PCBs <gr-thn-eq>50 ppm to a foreign country for disposal 
would violate the export prohibition. In contrast, residents of areas 
inside the customs territory that do not have EPA-approved PCB disposal 
facilities can simply ship their PCB wastes to an approved facility in 
another State. For example, the residents of Alaska and Hawaii, States 
in which no TSCA-approved disposal facilities are located, can ship 
their PCBs to facilities in the mainland United States for disposal 
(Ref. 13), in spite of the fact that it is impossible to move wastes 
from those States to the mainland without either entering Canada or 
crossing international waters (40 CFR 761.99).
    EPA has determined that its previous interpretation of the 
definition of ``manufacture'' is not mandated by the language of TSCA, 
results in inequitable treatment among different areas within the 
United States, does not adequately protect health and the environment 
throughout the United States, and therefore is not in the public 
interest. EPA believes that the term ``import,'' as commonly 
understood, was not intended to include the movement of PCB waste that 
has never been outside the United States or outside the regulatory 
control of TSCA (after enactment) from one area of the United States 
(the territories and possessions) to another area of the United States 
(the mainland) for disposal. There is an obvious distinction between 
that type of movement and the introduction of a chemical into the 
United States from a foreign country, which is clearly an import. This 
latter category is much more analogous to the manufacture of a new 
chemical substance in the United States. Therefore, EPA proposes to 
interpret the movement of PCB waste from the territories and 
possessions into the customs territory of the United States for 
disposal not to be an import, and therefore not within the ban on 
manufacture under TSCA section 6(e).
    This proposed interpretive rule would allow the movement of PCB 
waste for disposal among any States of the United States, as defined in 
TSCA sections 3(13) and 3(14), regardless of whether the waste enters 
or leaves the customs territory of the United States, provided that the 
PCBs in the waste were present in the United States on January 1, 1979, 
when the ban on manufacturing took effect, and has remained within the 
United States since that date. This would allow PCB waste that was 
present in the territories and possessions at the time TSCA's ban on 
manufacturing took effect, and that remained within the territories and 
possessions since that date, to be stored and disposed of in any 
facility in the United States that meets the requirements of 40 CFR 
part 761, subpart D. It would also allow PCBs that were present in the 
territories and possessions at the time TSCA's bans took effect, but 
were not designated as waste until after that date, to be stored and 
disposed of in any subpart D facility in the United States, as long as 
the PCBs and PCB waste had remained in the United States. Finally, it 
would allow PCBs or PCB wastes that were transferred from an area in 
the United States that is outside the territories and possessions, but 
that was moved to a territory or possession after January 1, 1979, and 
that has never left the United States, to be stored and disposed of in 
any subpart D facility in the United States. EPA would not consider 
movement of any of these wastes to the customs territory of the United 
States to be an import subject to the ban on manufacturing under TSCA 
section 6(e).
    This proposed rule would apply to PCB waste that is present in the 
territories and possessions as the result of conduct that was legal at 
the time it occurred (for example, PCB materials that were brought to 
the territories before TSCA's ban on distribution in commerce became 
effective), and that has been subject to regulation under TSCA 
throughout its lifespan; or PCB equipment that was lawfully in use in 
one of the States, that was transferred to a territory or possession 
for continued lawful use, and that reached the end of its useful life 
and became subject to disposal while in the territory or possession.
    This proposed amendment would also be consistent with EPA's 
longstanding policy that it does not interpret movement of PCBs 
purchased or procured in the United States by the Federal Government, 
taken overseas for use in United States Government facilities, remained 
under the control and jurisdiction of the United States Government, and 
subsequently returned to the United States for disposal in an approved 
facility as either exports or imports for purposes of TSCA section 6(e) 
(Refs. 14 and 16). EPA established this policy because the wastes had 
always been the property of the United States and disposal facilities 
for these wastes might not be readily available overseas.
    This proposed rule would not allow disposal in the United States of 
PCBs transported to the territories and possessions from foreign 
countries after the effective date of the ban on manufacture in TSCA 
section 6(e)(3). The purpose of this proposal is to ensure that all 
United States PCB waste can be disposed of in compliance with the 
requirements of TSCA section 6(e) and its implementing regulations. 
This proposal is not intended to allow the territories and possessions 
to become a conduit to the United States for PCB waste generated in 
other countries.

[[Page 65658]]

    Finally, EPA has not made a formal finding of ``no unreasonable 
risk'' for this proposed regulation. This regulation is not being 
proposed under TSCA section 6(e), but rather as an exercise of EPA's 
inherent authority to interpret the statutes it administers.

 IV. References and Documents in the Record

    As indicated in Unit I.B.2., the official record for this 
rulemaking has been established under docket control number OPPTS-
66020, the public version of which is available for inspection as 
specified in Unit I.B.2. The following is a listing of the documents 
that have already been placed in the official record for this 
rulemaking:

A. Federal Register Notices

    1. U.S. Environmental Protection Agency (USEPA). 44 FR 31514, 
May 31, 1979, ``Polychlorinated Biphenyls (PCBs); Manufacturing, 
Processing, Distribution in Commerce, and Use Prohibitions: Final 
Rule.''
    2. USEPA. 45 FR 29115, May 1, 1980, ``Polychlorinated Biphenyls 
(PCBs); Expiration of the Open Border Policy for PCB Disposal: 
Notice.'' OPTS 62008.
    3. USEPA. 59 FR 62788, December 6, 1994, ``Disposal of 
Polychorinated Biphenyls: Proposed Rule.'' OPPTS-66009A.
    4. USEPA. 61 FR 11096, March 18, 1996, ``Disposal of 
Polychlorinated Biphenyls; Import for Disposal: Final Rule.'' OPPTS-
66009B.
    5. USEPA. 63 FR 35384, June 29, 1998, ``Disposal of 
Polychlorinated Biphenyls (PCBs): Final Rule.'' OPPTS-66009C.

 B. Reference Documents

    1. USEPA, Office of Research and Development (ORD). PCBs Cancer 
Dose-Response Assessment and Application to Environmental Mixtures. 
EPA600P-96001F (September 1996): 75pp. OPPTS-66009C.
    2. USEPA, Office of Air Quality Planning and Standards (OAQPS). 
Deposition of Air Pollutants to the Great Waters, First Report to 
Congress. EPA-453R-93-055 (May 1994): 136pp. OPPTS-66009B.
    3. USEPA, OAQPS. Identification of Sources Contributing to the 
Contamination of the Great Waters by Toxic Compounds. EPA-453R-94-
087 (March 17, 1993): 145pp. OPPTS-66009B.
    4. USEPA, OAQPS. Relative Atmospheric Loadings of Toxic 
Contaminants and Nitrogen to the Great Waters. EPA-453R-94-086 
(March 15, 1993): 142pp. OPPTS-66009B.
    5. USEPA. Chapter 2.2, Exposure and Effects of Airborne 
Contamination for the Great Waters Program Report. EPA-453R-94-085 
(December 22, 1992): 201pp. OPPTS-66009B.
    6. USEPA, Office of Prevention, Pesticides, and Toxic Substances 
(OPPTS). Commercially Permitted PCB Disposal Companies (April 2000): 
3pp.
    7. USEPA, Office of Pollution Prevention and Toxics (OPPT). 
Excerpt from the PCB Waste Handler Database; Facility Information 
for U.S. Territories and Possessions (September 27, 2000): 12pp.
    8. USEPA, Region IX. Memo from Lily Lee, Guam Program Manager, 
to Enrique Manzanilla, Director, Cross Media Division, Re: Summary 
of PCB Waste Quantities and Concentrations in the US Territories 
(July 19, 2000): 5pp.
    9. Unitek Environmental-Guam. Letter from LeRoy Moore, 
President, to John Malone [sic], Director, National Program 
Chemicals Division, Re: PCB Shipments from Guam and Possessions of 
the United States for Disposal in the Mainland United States (May 
11, 2000): 2pp.
    10. USEPA, OPPT. Note from Peter Gimlin to the File, Re: Unitek 
Environmental-Guam (UEG) Meeting (September 27, 2000): 1p.
    11. U.S. Congress. Letter from Robert A. Underwood, House of 
Representatives, to Carol M. Browner, Administrator, EPA, Re: 
Disposal of Polychlorinated Biphenyls (PCBs) from Guam and the Other 
U.S. Territories (April 12, 2000): 2pp.
    12. USEPA, Region IX. Letter from Felicia Marcus, Regional 
Administrator, to Robert A. Underwood, U.S. House of 
Representatives, Re: Disposal of Polychlorinated Biphenyl Waste 
(February 4, 2000): 2pp.
    13. USEPA, OPPT. Memo from John W. Melone, Director, Chemical 
Management Division, to George Abel, Chief, Pesticides and Toxic 
Substances Branch, USEPA Region X, Re: Transit of PCB Waste 
Generated in the United States Through a Foreign Country (January 
19, 1995): 2pp.
    14. USEPA, OPPT. Letter from John W. Melone, Director, Chemical 
Management Division, to Arthur J. Brown, National Science 
Foundation, Re: Request to Return PCBs in Antarctica to the United 
States for Disposal (March 11, 1994): 3pp.
    15. USEPA, OCM and OE. Letter from Michael F. Wood, Director, 
Compliance Division, and Michael J. Walker, Enforcement Counsel for 
the Toxics Litigation Division, to Marion P. Herrington, General 
Electric Company, Re: Transfer of PCB Waste Generated in A U.S. 
Territory to An Approved Disposal Facility in the Continental United 
States (August 14, 1992): 2pp.
    16. USEPA, Office of Toxic Substances (OTS). Letter from Don R. 
Clay, Director to Colonel Joseph T. Cuccaro, Defense Logistics 
Agency, Re: USEPA Position on DOD Owned PCB Fluid Located Abroad and 
Returned to the U.S. for Disposal (February 7, 1984): 3pp.
    17. United Nations Environment Programme (UNEP). Inventory of 
World-wide PCB Destruction Capacity, First Issue (December 1998): 
85pp.
    18. U.S. Congress. Congressional Record from the House of 
Representatives, H8598, Guam's Environmental Problems (October 2, 
2000): 1p.
    19. U.S. Congress. Letter from Robert A. Underwood, House of 
Representatives, to Carol Browner, Administrator, EPA, Re: Inability 
of Guam to Import PCBs into the U.S. Mainland for Proper Disposal 
(December 10, 1999): 2 pp.
    20. USEPA, OPPTS. Letter from Susan H. Wayland, Acting Assistant 
Administrator, to Robert A. Underwood, U.S. House of 
Representatives, Re: Disposal of PCB Waste in Guam (June 14, 2000): 
2 pp.
    21. USEPA, OPPTS. Letter from Susan H. Wayland, Acting Assistant 
Administrator, to Robert A. Underwood, U.S. House of 
Representatives, Re: Meeting on PCB Waste in Guam (September 29, 
2000): 2 pp.

 V. Regulatory Assessment Requirements

A. Executive Order 12866

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), the Office of Management and 
Budget (OMB) has determined that this action is not a ``significant 
regulatory action'' subject to review by OMB, because this action is 
not likely to result in a rule that meets any of the criteria for a 
``significant regulatory action'' provided in section 3(f) of the 
Executive Order. This proposed rule simply clarifies EPA's 
interpretation of the TSCA section 6(e) provisions relating to the 
manufacture of PCBs.

B. Regulatory Flexibility Act (RFA)

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, 5 U.S.C. 601 et seq., the Agency hereby certifies that this final 
rule will not have a significant economic impact on a substantial 
number of small entities. The factual basis for this determination is 
that this action is not expected to result in any direct adverse impact 
for small entities. This rule interprets the prohibition on the 
``manufacture of PCBs'' in a manner which affords U.S. citizens 
(including small entities) residing in U.S. territories and possessions 
located outside the ``customs territory of the United States'' an 
opportunity to dispose of PCB waste when facilities that require EPA 
approval to manage PCB waste are not readily available. This rule is 
being promulgated in the public interest to ensure equitable treatment 
among different areas within the United States and adequate protection 
of health and the environment throughout the United States. This rule 
provides a mechanism for the disposal of PCB waste resulting from 
natural disasters (e.g., tropical storms, cyclones, typhoons and 
hurricanes), former use of U.S. territories and possessions for defense 
purposes, spills of PCBs and when PCB equipment has reached the end of 
its natural life span.

[[Page 65659]]

C. Paperwork Reduction Act (PRA)

    This regulatory action does not contain any information collection 
requirements that require approval by the Office of Management and 
Budget (OMB) under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq.

D. Unfunded Mandates Reform Act (UMRA)

     Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA), Public Law 104-4, EPA has determined that this action does not 
contain a Federal mandate that may result in expenditures of $100 
million or more for State, local or tribal governments, in the 
aggregate, or on the private sector in any one year. The UMRA 
requirements in sections 202, 204, and 205 do not apply to this rule, 
because this action does not contain any ``Federal mandates'' or impose 
any ``enforceable duty'' as defined by UMRA on StateTribal, or local 
governments or on the private sector. The requirements in section 203 
do not apply because this rule does not contain any regulatory 
requirements that might significantly or uniquely affect small 
governments.

 E. Executive Order 13132

    Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications, because 
it will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government, as specified in Executive Order 13132. This action 
interprets the TSCA prohibition on the manufacture of PCBs in a manner 
which allows PCB waste in U.S. territories and possessions located 
outside of the customs territory of the U.S. to be disposed of in EPA-
approved facilities on the mainland of the United States. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13084

    Under Executive Order 13084, entitled Consultation and Coordination 
with Indian Tribal Governments (63 FR 27655, May 19, 1998), EPA may not 
issue a regulation that is not required by statute, that significantly 
or uniquely affects the communities of Indian tribal governments, and 
that imposes substantial direct compliance costs on those communities 
unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by the tribal governments, or EPA 
consults with those governments.
    If EPA complies by consulting, Executive Order 13084 requires EPA 
to provide to the Office of Management and Budget, in a separately 
identified section of the preamble to the rule, a description of the 
extent of EPA's prior consultation with representatives of affected 
tribal governments, a summary of the nature of their concerns, and a 
statement supporting the need to issue the regulation. In addition, 
Executive Order 13084 requires EPA to develop an effective process 
permitting elected officials and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.''
    This rule does not significantly or uniquely affect the communities 
of Indian tribal governments, nor does it impose substantial direct 
compliance costs on such communities. It interprets the TSCA 
prohibition on the manufacture of PCBs in a manner which allows PCB 
waste in U.S. territories and possessions located outside of the 
customs territory of the U.S. to be disposed of in EPA-approved 
facilities on the mainland of the United States. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

G. Executive Order 12898

    Pursuant to Executive Order 12898, entitled Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994), the Agency has considered 
environmental justice related issues with regard to the potential 
impacts of this action on the environmental and health conditions in 
low-income and minority communities. EPA finds that the amendments in 
this proposed rule will reduce the risk to human health and the 
environment from exposure to PCBs, particularly in low-income and 
minority communities. This proposed rule would allow PCB waste found in 
U.S. territories and possessions located outside of the customs 
territory of the U.S. to be disposed of in EPA-approved facilities on 
the mainland of the United States.

H. Executive Order 13045

    Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), does not apply to this rule, because it is not ``economically 
significant'' as defined under Executive Order 12866, and does not 
involve decisions on environmental health risks or safety risks that 
may disproportionately affect children. This proposed regulation would 
allow PCB waste in U.S. territories and possessions located outside of 
the customs territory of the U.S. to be disposed of in EPA-approved 
facilities on the mainland of the United States. Therefore, the 
disposal of PCB waste will occur where children are either not present 
or not permitted, and the disposal activity will pose no special risks 
to children. Also, the rule will prevent exposure of children in U.S. 
territories and possessions to PCBs that might result from improper 
storage or disposal of PCB waste.

 I. National Technology Transfer and Advancement Act (NTTAA)

    This regulatory action does not involve any technical standards 
that would require Agency consideration of voluntary consensus 
standards pursuant to section 12(d) of the National Technology Transfer 
and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) 
(15 U.S.C. 272 note).

 J. Executive Order 12630

    EPA has complied with Executive Order 12630, entitled Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights (53 FR 8859, March 15, 1988), by examining the takings 
implications of this rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the Executive Order.

 K. Executive Order 12778

    In issuing this rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct, as required by 
section 3 of Executive Order 12988, entitled Civil Justice Reform (61 
FR 4729, February 7, 1996).

[[Page 65660]]

List of Subjects in 40 CFR Part 761

    Environmental protection, Hazardous substances, Labeling, 
Polychlorinated Biphenyls (PCBs), Recordkeeping and reporting 
requirements.


    Dated: October 24, 2000.

Carol M. Browner,

Administrator.

    Therefore, 40 CFR chapter I, part 761 is proposed to be amended as 
follows:

PART 761--[AMENDED]

    1. The authority citation for part 761 will continue to read as 
follows:

    Authority: 15 U.S.C. 2605, 2607, 2611, 2614, and 2616.


    2. Section 761.99 is amended by adding paragraph (c) to read as 
follows:


Sec. 761.99  Other transboundary shipments.

* * * * *
    (c) PCB waste transported from any State to any other State for 
disposal, regardless of whether the waste enters or leaves the customs 
territory of the United States, provided that the PCB waste or the PCBs 
from which the waste was derived were present in the United States on 
January 1, 1979, and have remained within the United States since that 
date.

[FR Doc. 00-27971 Filed 10-26-00; 4:34 p.m.]
BILLING CODE 6560-50-S


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