65654 Federal Register / Vol. 65, No. 212 / Wednesday, November 1, 2000 / Proposed Rules

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.

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: TSCA-Hotline@epa.gov.

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: reynolds.peggy@epa.gov.

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:

Types of entities NAICS

codes Examples of potentially affected entities

Crude Petroleum and Natural Gas Extraction 211111 Facilities that own electrical equipment containing PCBs

Electric Power Generation; Transmission and

Distribution

2211 Facilities that own electrical equipment containing PCBs

Food Manufacturing 311 Facilities that own electrical equipment containing PCBs

Petroleum and Coal Products Manufacturing 324 Facilities that own 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

Federal Register / Vol. 65, No. 212 / Wednesday, November 1, 2000 / Proposed Rules 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: oppt.ncic@epa.gov, 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

65656 Federal Register / Vol. 65, No. 212 / Wednesday, November 1, 2000 / Proposed Rules

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 TSCAapproved 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 ≥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)

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

≥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.

65658 Federal Register / Vol. 65, No. 212 / Wednesday, November 1, 2000 / Proposed Rules

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 DoseResponse 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.

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

65660 Federal Register / Vol. 65, No. 212 / Wednesday, November 1, 2000 / Proposed Rules

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:

§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.]

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