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[Federal Register Volume 79, Number 63 (Wednesday, April 2, 2014)]
[Rules and Regulations]
[Pages 18471-18477]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-07393]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 761

[EPA-HQ-RCRA-2013-0396; FRL-9908-98-OSWER]
RIN 2050-AG79

Polychlorinated Biphenyls (PCBs): Manufacturing (Import) 
Exemption for the Defense Logistics Agency (DLA)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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[[Page 18472]]

SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency) 
is taking direct final action on a petition from the United States 
Defense Logistics Agency (DLA) to import foreign-manufactured 
polychlorinated biphenyls (PCBs). For purposes of the Toxic Substances 
Control Act (TSCA), ``manufacture'' is defined to include the import of 
chemical substances into the customs territory of the United States. 
With certain exceptions, section 6(e)(3) of TSCA bans the manufacture, 
processing, and distribution in commerce of PCBs. One of these 
exceptions is TSCA section 6(e)(3)(B), which gives EPA authority to 
grant petitions to import PCBs into the customs territory of the United 
States for a period of up to 12 months, provided EPA can make certain 
findings by rule. On April 23, 2013, EPA received a petition from DLA, 
a component of the United States Department of Defense (DoD), to import 
foreign-manufactured PCBs that DoD currently owns in Japan for disposal 
in the United States. EPA is granting DLA's petition as of July 1, 
2014. This decision to grant the petition allows DLA to manufacture 
(i.e., import) certain PCBs for disposal. EPA has granted two previous 
exemptions in 2003 and 2007 to DLA for similar petitions to import PCBs 
for disposal. Without an exemption granted by EPA, DLA would not be 
allowed to import the PCB waste to the U.S. for proper disposal. In 
fact, if the exemption is not granted, it is very likely that DLA will 
not be able to find any country willing to accept and properly dispose 
of the PCB waste.

DATES: This direct final rule will be effective July 1, 2014 without 
further notice, unless EPA receives adverse written comment or a 
request for an informal hearing (per 40 CFR part 750, subpart B) by May 
2, 2014 If adverse comments or a request for an informal hearing are 
received, EPA will publish a timely withdrawal in the Federal Register 
informing the public that this rule will not take effect based on the 
direct final rule. EPA will then address all public comments in any 
subsequent final rule based on the proposed rule which accompanies this 
direct final rule.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2013-0396, by one of the following methods:
    www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: rcra-docket@epa.gov. Attention Docket ID No. EPA-
HQ-RCRA-2013-0396.
     Mail: RCRA Docket, Mail Code 28221T, U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460. 
Attention Docket ID No. EPA-HQ-RCRA-2013-0396. Please include two 
copies.
     Hand Delivery: Please deliver two copies to the EPA Docket 
Center (EPA/DC), WJC West, Room 3334, 1301 Constitution Ave. NW., 
Washington, DC. Such deliveries are only accepted during the Docket's 
normal hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2013-0396. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/dockets/.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, WJC 
West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the RCRA 
Docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: Kelly Greene, U.S. Environmental 
Protection Agency, Office of Resource Conservation and Recovery, (MC: 
5304P), 1200 Pennsylvania Avenue NW., Washington, DC 20460, Phone: 703-
347-0363; or by email: greene.kelly@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Why is EPA using a direct final rule?
II. Does this action apply to me?
III. Background
IV. Findings Necessary To Grant Petitions
    A. No Unreasonable Risk Finding
    B. Good Faith Efforts Finding
V. Final Disposition of This Exemption Petition
    A. The Petition: April 23, 2013 Petition To Import PCBs Located 
in Japan
    B. EPA's Final Decision on the Petition: April 23, 2013 
Petition; EPA Is Granting This Petition
VI. References
VII. Statutory and Executive Order Reviews
    A. Regulatory Flexibility Act
    B. Congressional Review Act

I. Why is EPA using a direct final rule?

    EPA is publishing this rule as a direct final rule because the 
Agency views this action as noncontroversial and EPA anticipates no 
adverse comments since EPA has granted two previous exemptions to DLA 
for similar petitions to import PCB waste (68 FR 4934 and 72 FR 53152) 
(Ref. 2, 3). EPA received no adverse comments or requests for an 
informal hearing for either of the previous two DLA petitions, the last 
of which was granted on September 18, 2007. In the absence of an 
exemption, import of the waste identified by the petitioner would be 
banned from being imported into the customs territory of the United 
States by section 6(e)(3) of TSCA. The petition, dated April 23, 2013, 
is for an exemption to import for proper disposal certain PCBs under 
the control of DLA that are currently in use or storage in Japan (Ref. 
1). Additionally, EPA believes that a direct final rule will expedite 
processing of an import exemption and the proper disposal of the PCB 
wastes, further reducing risks from long term storage overseas.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the

[[Page 18473]]

Federal Register informing the public that the rule will not take 
effect based on the direct final rule. Any parties interested in 
commenting must do so at this time. If an informal hearing is 
requested, the Agency will publish the place and time of the hearing. 
Public comments will be accepted for one week after the close of the 
informal hearing. If we receive adverse comments, after withdrawing the 
direct final rule, we will address all public comments in any 
subsequent final rule based on the accompanying proposed rule.
    If the Agency does not receive adverse comments or a request for an 
informal hearing, this direct final rule will take effect on July 1, 
2014.

II. Does this action apply to me?

    This action applies to the petitioner, the U.S. Defense Logistics 
Agency. However, you may be potentially affected by this action if you 
process, distribute in commerce, or dispose of the PCB waste imported 
by DLA, i.e., you are an EPA-permitted PCB waste handler. Potentially 
affected categories and entities include, but are not necessarily 
limited to:
     Waste treatment and disposal North American Industrial 
Classification System ((NAICS) code 5622), e.g., facilities that store 
or dispose of PCB waste.
     Materials recovery facilities (NAICS code 56292), e.g., 
facilities that process and/or recycle metals.
     Public administration (NAICS code 92), e.g., the 
petitioning agency (i.e., DLA).
    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities potentially affected by this 
action. Other types of entities not listed in this section could also 
be affected. The NAICS codes have been provided to assist you and 
others in determining whether 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 person 
listed under the FOR FURTHER INFORMATION CONTACT section of this 
document.

III. Background

    Section 6(e)(3)(A) of TSCA prohibits the manufacture, processing, 
and distribution in commerce of PCBs, except for the distribution in 
commerce of PCBs that were sold for purposes other than resale before 
April 1, 1979. Section 6(e)(1) of TSCA also authorizes EPA to regulate 
the disposal of PCBs consistent with the provisions in section 6(e)(2) 
and (3) of TSCA.
    Section 6(e)(3)(B) of TSCA, however, stipulates that any person may 
petition the EPA Administrator for an exemption from the prohibition on 
the manufacture, processing, and distribution in commerce of PCBs. The 
Administrator may by rule grant an exemption if the Administrator finds 
that:
    (i) An unreasonable risk of injury to health or the environment 
would not result, and (ii) good faith efforts have been made to develop 
a chemical substance which does not present an unreasonable risk of 
injury to health or environment and which may be substituted for such 
polychlorinated biphenyl. (15 U.S.C. 2605(e)(3)(B)(i)-(ii)).
    The Administrator may prescribe terms and conditions for an 
exemption and may grant an exemption for a period of not more than one 
year from the date the petition is granted. In addition, section 
6(e)(4) of TSCA requires that a rule under section 6(e)(3)(B) of TSCA 
be promulgated in accordance with sections 6(c)(2), (3) and (4) of 
TSCA, which provide for publication of a proposed rule, the opportunity 
for written comments and an informal hearing, if requested, and 
publication of a final rule.
    EPA's procedures for rulemaking under section 6 of TSCA are found 
under 40 CFR part 750. This part includes Subpart B--Interim Procedural 
Rules for Manufacturing Exemptions, which describes the required 
content for manufacturing exemption petitions and the procedures that 
EPA follows in rulemaking regarding these petitions. These rules are 
codified at 40 CFR 750.10 through 750.21.

IV. Findings Necessary To Grant Petitions

A. No Unreasonable Risk Finding

    Before granting an exemption petition, section 6(e)(3)(B)(i) of 
TSCA requires the Administrator to find that granting an exemption 
would not result in an unreasonable risk of injury to health or to the 
environment. EPA expects a petitioner to demonstrate in its petition 
that the activity will not pose an unreasonable risk. (See 40 CFR 
750.11.)
    To determine whether a risk is unreasonable, EPA balances the 
probability that harm will occur to health or to the environment 
against the benefits to society from granting or denying each petition. 
See generally, 15 U.S.C. 2605(c)(1). Specifically, EPA considers the 
following factors:
    1. Effects of PCBs on human health and the environment. In deciding 
whether to grant an exemption, EPA considers the magnitude of exposure 
and the effects of PCBs on humans and the environment. The following 
discussion summarizes EPA's assessment of these factors. A more 
complete discussion of human health and environmental effects of PCBs 
is provided in the advance notice of proposed rulemaking for the 
reassessment of PCB use authorizations in the Federal Register of April 
7, 2010 (75 FR 17645) (Ref. 5). The Agency for Toxic Substances and 
Disease Registry (ATSDR) Toxicological Profile for PCBs (2000) has also 
provided a recent review of PCB human health and environmental effects 
(Ref. 6).
    a. Health effects. EPA has determined that PCBs cause significant 
human health effects, including cancer (classified as a probable human 
carcinogen), immune system suppression, liver damage, skin irritation, 
and endocrine disruption. PCBs exhibit neurotoxicity, as well as 
reproductive and developmental toxicity. PCBs are readily absorbed 
through the skin and are absorbed 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.
    b. Environmental effects. Certain PCB congeners are among the most 
stable chemicals known, and decompose very slowly once they are 
released into the environment. PCBs are absorbed and stored in the 
fatty tissue of higher organisms as they bioaccumulate up the food 
chain through invertebrates, fish, and mammals. 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. PCBs also have 
reproductive and other toxic effects in aquatic organisms, birds, and 
mammals.
    c. Risks. Toxicity and exposure are the two basic components of 
risk. EPA has concluded that exposure of humans or the environment to 
PCBs may be significant, depending on such factors as the quantity of 
PCBs involved in the exposure and the effect of exposure. Minimizing 
exposure to PCBs should minimize potential risk. As shown through the 
40 CFR Part 761 regulations that detail proper disposal and storage 
options, EPA has previously determined that some activities, including 
the disposal of PCBs, pose no unreasonable risks. Other activities, 
such as long-term

[[Page 18474]]

storage of PCB waste, are generally considered by EPA to pose 
unreasonable risks.
    2. Benefits and costs. The benefits to society of granting an 
exemption vary, depending on the activity for which the exemption is 
requested. The reasonably ascertainable costs of denying an exemption 
vary, depending on the individual petition. As discussed in Section V 
of this preamble, EPA has taken benefits and costs into consideration 
when evaluating this exemption petition.

B. Good Faith Efforts Finding

    Section 6(e)(3)(B)(ii) of TSCA requires the Administrator to find 
that ``good faith efforts have been made to develop a chemical 
substance which does not present an unreasonable risk of injury to 
health or the environment and which may be substituted for [PCBs].'' 
EPA expects a petitioner to demonstrate in its petition how this 
standard is met. (See 40 CFR 750.11.) EPA considers several factors in 
determining whether good faith efforts have been made. For each 
petition, EPA considers the kind of exemption the petitioner is 
requesting and whether the petitioner can demonstrate that time and 
effort have been expended to develop or search for a substitute. In 
each case, the burden is on the petitioner to show specifically what 
was done to substitute non-PCB material for PCBs or to show why it was 
not feasible to substitute non-PCBs for PCBs.
    To satisfy this finding for requests for an exemption to import 
PCBs for disposal, a petitioner must show why such activities should 
occur in the United States and what steps have been taken to develop a 
substitute. While requiring a petitioner to demonstrate that good faith 
efforts to develop a substitute for PCBs makes sense when dealing with 
exemption petitions for traditional manufacture and distribution in 
commerce, the issue of the development of substitute chemicals seems to 
have little bearing on whether to grant a petition for exemption that 
would allow the import into the United States for disposal of PCB 
waste. However, because section 6(e)(3)(B) allows a petitioner to 
request an exemption from any of the prohibitions listed in section 
6(e)(3)(A), EPA believes that it is appropriate to apply the standard 
in a way that is relevant to the particular exemption requested. 
Therefore, EPA believes that the relevant ``good faith'' issue for an 
exemption request to import PCBs for disposal in the customs territory 
of the United States is whether the disposal of the waste could and/or 
should occur outside the United States.

V. Final Disposition of This Exemption Petition

A. The Petition: April 23, 2013 Petition To Import PCBs Located in 
Japan

    On April 23, 2013, DLA submitted a petition seeking a 1-year 
exemption to import PCBs and PCB Items currently in storage at U.S. 
military installations in Japan (Ref. 1). DLA estimates that as much as 
1,014,222 pounds of waste contaminated with PCBs could be generated in 
Japan through the calendar year 2014. The material in Japan consists of 
transformers (drained and un-drained), large and small capacitors, 
voltage regulators, switches, electromagnets, circuit breakers, 
reclosers, electrical cable, electric light ballasts, used dielectric 
fluids containing PCBs, and PCB-contaminated soil and debris (e.g., 
rags, small parts, packaging materials). Ninety four percent of the 
waste is at PCB concentrations below 50 ppm. Details of the particular 
amounts and concentrations DLA is petitioning to import can be found in 
Attachment 1 of the DLA petition, which can be found in the docket. EPA 
has concluded that import of DLA's PCBs will not cause a shortage of 
domestic PCB storage or disposal capacity. In addition, EPA has 
concluded that the amounts of PCBs available for import are small in 
comparison to domestic generation, and pose little threat of 
overwhelming domestic disposal capacity. (Ref. 4)
    1. Information regarding no unreasonable risk provided by the 
petitioner. DLA will package, transport, treat, and dispose of these 
PCBs in the same manner as PCBs identified in its previous petitions, 
which EPA granted in 2003 and 2007 to allow the import of up to 
4,293,621 and 1,328,428 pounds of waste contaminated with PCBs, 
respectively (Ref. 2, 3). Specifically, DLA notes its adherence to 
applicable modal and inter-modal national and/or international 
packaging, marking, labeling and shipping paper regulations, such as 
the United Nations (UN) Performance Oriented Packaging (POP) standards, 
the International Maritime Dangerous Goods (IMDG) Code/International 
Maritime Organization (IMO) requirements, the International Civil 
Aviation Organization (ICAO) Technical Instructions, requirements of 
the International Air Transport Association (IATA), UN Recommendations 
on the Transport of Dangerous Goods Code, and provisions of the 
Hazardous Materials Regulations at 49 CFR 100-199. DLA further notes 
that proper handling and shipping will include blocking, bracing, over 
packing, and inclusion of spill containment devices, as required by 
applicable transportation regulations.
    DLA further indicates that it will handle and dispose of all PCBs 
and PCB Items in conformance with the PCB regulations at 40 CFR Part 
761. DLA has considerable experience and expertise in awarding and 
administering disposal contracts for PCBs and PCB Items in the U.S. and 
will award contracts with commercial firms in accordance with all 
applicable Federal procurement statutes and the Federal Acquisition 
Regulations (FAR). DLA additionally notes that only companies with the 
required Federal and/or state-permits for the transportation, storage, 
treatment and disposal of PCBs and PCB Items would be considered as 
eligible for award of such contracts. DLA's exemption petition does not 
request to limit the storage, treatment or disposal of PCBs and PCB 
Items imported from Japan to management at a particular facility; 
rather DLA requests that any storage, treatment, or disposal facility 
that has the appropriate Federal and/or state permits for PCBs and PCB 
Items and for which DLA has entered a contract be allowed to manage 
these materials.
    DLA notes that it and its contractors have extensive experience in 
safely returning PCBs and PCB Items to the United States for treatment 
and disposal, and that DLA has returned several million pounds of PCBs 
and PCB Items for compliant disposal in the United States, including 
3.6 million pounds of foreign-manufactured PCBs and PCB Items imported 
under the two previously granted exemptions.\1\ Throughout the course 
of this experience, DLA has used the same standards and procedures 
discussed above without spills or safety problems affecting human 
health or the environment.
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    \1\ As noted previously, DLA had authority to import up to 5.5 
million pounds of PCBs and PCB Items.
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    2. Information regarding good faith efforts provided by the 
petitioner. DLA states in its petition that disposal of its PCBs and 
PCB Items in Japan is not an available disposal option.
    As DLA noted in its exemption request, there are significant 
impediments to disposal on DOD military installations in Japan. As 
noted in the DLA petition, while there may exist certain mobile 
technology capable of treating some of the PCBs and PCB Items generated 
by United States military forces in Japan, there are also significant 
impediments to obtaining the

[[Page 18475]]

permits that would be required to have that technology approved for use 
on United States military installations, where residual wastes and 
metals would still need to be taken off-installation for disposal. 
Complicating the situation further is that any transfer or sale of 
property from the U.S. military installations into Japanese commerce is 
considered an ``import'' of property. Japan has banned the importation 
of PCBs and PCB Items at any detectable concentration including 
concentrations below the very stringent 0.5 ppm level at which Japan 
regulates domestic PCBs. DLA's market research suggested a potential 
could exist for disposal of some limited waste streams in newly 
permitted Japanese facilities (i.e., ``off- installation'' disposal). 
However, DLA has not been able to identify any change in Japanese law 
that would allow off-installation disposal in Japan nor the existence 
of any properly permitted vendor or technology that would be currently 
available to properly treat the DOD generated PCBs and PCB Items within 
the confines of the United States installations in Japan. Accordingly, 
on-site treatment does not present a reasonable alternative to the 
import of these wastes for proper disposal in the United States in 
compliance with TSCA Section 6(e)(3).
    DLA further notes that disposal of this waste in another country is 
not a viable option. DLA cites its 1999 Report to Congress as 
background on the difficulty it faces in finding suitable disposal 
alternatives for PCBs and PCB Items generated or owned by DOD overseas. 
In particular, DLA discusses the difficulty of shipping waste from 
Japan to other countries as a result of the Basel Convention. Prior to 
its previous petitions, DLA and its primary disposal contractor made 
extensive contacts over a period of several years with Japanese 
officials and disposal facilities in numerous locations outside the 
United States in an effort to identify firms who could dispose of such 
PCBs and PCB Items while satisfying the Basel Convention requirements. 
At that time, the DOD also consulted at length with the State 
Department officials in Japan and in the United States whose 
responsibilities include international environmental matters. The 
variety of problems identified in these contacts regarding overseas 
disposal of certain PCB Items resulted in a consensus that use of 
existing facilities in other developed countries was not a reasonable 
alternative. Even if other countries had the physical capacity to 
accept these wastes, non-governmental organizations might be expected 
to oppose the DOD's disposal of its waste in third countries (that is, 
countries other than Japan and the United States) because the United 
States has the technical capability to properly dispose of the 
hazardous materials itself.
    DLA concludes that its diligent but so far unsuccessful attempts to 
locate appropriate disposal sites outside the United States demonstrate 
its good faith efforts to pursue alternatives to disposal within the 
United States and fulfill the requirements of TSCA 6(e)(3)(B).

B. EPA's Final Decision on the Petition: April 23, 2013 Petition; EPA 
Is Granting This Petition

    1. No unreasonable risk determination. EPA finds generally that the 
disposal of imported PCBs and PCB Items at an EPA-approved PCB disposal 
facility poses no unreasonable risks as these facilities have been 
approved on the basis of that standard. In addition, as with the 
previous two petitions, EPA concurs with DLA's assessment that 
transportation of this waste will pose no unreasonable risk if 
conducted in accordance with all applicable laws and regulations. 
Therefore, for the following reasons, EPA finds that there is no 
unreasonable risk from importing the PCBs and PCB Items by DLA from 
Japan to the United States for disposal, as outlined below.
    i. PCBs are hazardous and pose a potential risk to health and the 
environment. Proper disposal would reduce PCB-associated risks.
    ii. Risk results from a combination of exposure (likelihood, 
magnitude and duration) and the probability of effects occurring under 
the conditions of exposure. Because the probability of a transport 
accident occurring is low (Ref. 4), the likelihood of exposure to PCBs 
is commensurately low. Consequently, the probability of adverse effects 
to human health or the environment is low.
    iii. The PCB-containing materials will be packaged in a manner 
consistent with Federal, State, and local regulations addressing the 
risks associated with the storage and transportation of hazardous 
wastes. In addition, PCB waste will be continuously monitored during 
the water transport from Japan to the United States. Contingency plans 
are required by the International Maritime Dangerous Goods Code and DOT 
to be in place before and after the import of PCB-containing items to 
the United States. Moreover, the PCB Items that will be transported to 
the United States generally have a low combustion likelihood, which 
will make the probability of fires low. Together, these contingency 
measures will minimize exposure to humans and the environment in the 
event of an accident or emergency during ocean transport.
    iv. Given the aforementioned information, the exposure likelihood, 
frequency, and duration are so low that even though PCBs are considered 
to be highly hazardous, any risk resulting from the combined exposure 
and hazard potential is expected to be low to human health or the 
environment.
    v. The potential for human health risks are further mitigated by 
the limited duration of exposure. PCBs are most hazardous following 
long-term (chronic) exposures. Under the transport scenario proposed, 
any exposures to humans (i.e., accidental or emergency situation) would 
be of very short duration. Hence, the low probability of exposure 
occurring combined with the short-term duration of exposure, should one 
occur, further supports a qualitative conclusion that there is no 
unreasonable risk to human health.
    vi. The long-term concern is the potential for accumulation in the 
ecological environment. Under a worst case scenario where all of the 
PCBs were released due to an unforeseen and highly unlikely 
catastrophic event during transport, PCB-exposed biological receptors 
could be adversely affected. However, this scenario is highly unlikely 
because it would require a complete failure of all safeguards that will 
be in place. Furthermore, the alternative of storing the PCBs 
indefinitely seems to pose more risk than transport. Moreover, should 
an accident occur, emergency response authorities would be invoked to 
mitigate and/or remediate exposures.
    2. Good faith efforts to find substitutes met. Section 
6(e)(3)(B)(ii) of TSCA requires the Administrator to make an additional 
finding, that ``good faith efforts have been made to develop a chemical 
substance that does not present an unreasonable risk of injury to 
health or the environment and which may be substituted for such 
polychlorinated biphenyl.'' EPA has interpreted this provision to 
require that a petitioner has the burden of demonstration that it has 
made the requisite good faith efforts. (See 40 CFR 750.11.)
    EPA finds that DLA has demonstrated good faith efforts to find 
alternatives to disposal of this PCB waste in the United States. EPA 
acknowledges the restrictions to disposing of this waste in Japan. DLA 
has also explored exporting this waste to other countries as an 
alternative. However, DLA has indicated, and EPA acknowledges, the 
peculiar circumstances of DOD's PCBs and PCB Items, which, while 
present in

[[Page 18476]]

one country (i.e., Japan), are generated by another country's 
government, leading to significant difficulty in providing Basel 
Convention notification to third party countries. Given these 
difficulties, EPA concurs with DLA's conclusion that disposal in a 
third country (that is, countries other than Japan and the United 
States) is not a viable alternative for this waste.
3. Benefits of Granting the Petition
    i. Avoiding the risks of long-term storage. EPA believes that 
granting the petition to DLA to import 1,014,222 pounds of waste 
contaminated with PCBs (94% of which is less than 50 ppm) will benefit 
the United States and the environment in general. As DLA notes, the 
continued long-term storage of PCB waste on U.S. military facilities in 
Japan poses risks to U.S. personnel and the environment--risks that can 
be eliminated through the action finalized in the petition.
    ii. Ensuring proper and safe disposal. Granting the petition allows 
the United States to accept responsibility for the PCBs and PCB Items 
it generates by assuring proper and safe disposal in domestic permitted 
disposal facilities.
    iii. Ensuring the safety of Japanese citizens. EPA considers the 
reduction of risk to Japanese citizens to be advantageous, especially 
in light of the heightened concerns over PCBs in that country. Granting 
the petition is the only practical mechanism to remove this waste from 
Japan; otherwise, the U.S. military would be required to explain to its 
Japanese hosts that it cannot remove its own toxic waste from their 
country because U.S. law does not allow the waste to be sent to the 
United States.
    For these reasons, EPA finds DLA has satisfied the exemption 
criteria of TSCA section 6(e)(3)(B) and is granting the petition.

VI. References

    1. DOD, DLA. Petition from David Rodriguez, Director to EPA. 
Subject: Petition to the United Sates Environmental Protection 
Agency For an Exemption Under the Toxic Substances Control Act to 
Import Polychlorinated Biphenyls (PCB) and PCB Items for Disposal. 
April 23, 2013. 19 pp.
    2. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import) 
Exemption. Final Rule. Federal Register (72 FR 53152, April 30, 
2007) (FRL-8143-4). Available online at https://www.federalregister.gov/articles/2007/09/18/E7-18345/polychlorinated-biphenyls-manufacturing-import-exemption, Document 
ID: EPA-HQ-OPPT-2005-0042-0008.
    3. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import) 
Exemptions. Final Rule. Federal Register (68 FR 4934, January 31, 
2003) (FRL-7288-6). Available online at http://www.federalregister.com/Browse/Document/usa/na/fr/2003/1/31/03-2344, 
Document ID: EPA-HQ-OPPT-2002-0013-0041.
    4. EPA, OPPT. Disposal of Polychlorinated Biphenyls; Import for 
Disposal. Final Rule. Federal Register (61 FR 11096, March 18, 1996) 
(FRL-5354-8). Available online at http://www.epa.gov/fedrgstr/EPA-TOX/1996/March/Day-18/pr-24122.txt.html.
    5. EPA, OPPT. Polychlorinated Biphenyls (PCBs); Reassessment of 
Use Authorizations. Advanced Notice of Proposed Rulemaking. Federal 
Register (75 FR 17645, April 7, 2010) (FRL-8811-7). Available online 
at http://www.regulations.gov, Document ID: EPA-HQ-OPPT-2009-0757-
0001.
    6. The U.S. Department of Agriculture, Public Health Service, 
Agency for Toxic Substances and Disease Registry (ATSDR) 
Toxicological Profile for Polychlorinated Biphenyls (PCBs) (November 
2000). Available online at http://www.atsdr.cdc.gov/toxprofiles/tp17.pdf.

VII. Statutory and Executive Order Reviews

    As explained above, this action will only grant an exemption for 
one year for the DLA to import PCB waste from military operations in 
Japan. For that reason, this action:
     Is not a ``significant regulatory action'' under the terms 
of Executive Order 12866 (58 FR 51735, October 4, 1993), and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011);
     does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     contains no Federal mandates under the provisions of Title 
II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), 
for State, local, or tribal governments or the private sector and 
contains no regulatory requirements that might significantly or 
uniquely affect small governments;
     does not have Federalism implications as specified in 
Executive Order 13132: Federalism (64 FR 43255, August 10, 1999);
     does not have tribal implications as specified by 
Executive Order 13175: Consultation and Coordination with Indian Tribal 
Governments (65 FR 67249, November 9, 2000), because, as the rule does 
not make any substantive changes, it will not impose substantial direct 
costs on tribal governments or preempt tribal law;
     is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045: Protection 
of Children from Environmental Health and Safety Risks (62 FR 19885, 
April 23, 1997);
     is not subject to Executive Order 13211 (66 FR 28355 (May 
22, 2001)), because it is not a significant regulatory action under 
Executive Order 12866;
     does not involve technical standards, thus the 
requirements of Sec.  12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272) do not apply; and
     does not have disproportionately high and adverse human 
health or environmental effects on minority or low-income populations 
under Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations (59 FR 7629, 
February 16, 1994) because it does not affect the level of protection 
provided to human health or the environment.

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business that is 
primarily engaged in hazardous waste treatment and disposal as defined 
by NAICS code 562211, with annual receipts of less than 12.5 million 
dollars (based on Small Business Administration size standards); (2) a 
small governmental jurisdiction that is a government of a city, county, 
town, school district or special district with a population of less 
than 50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's direct final rule 
on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
This rule merely allows DOD to bring its PCB waste back to the U.S. 
from Japan for proper disposal.

B. Congressional Review Act

    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. Under the CRA, a ``major 
rule'' cannot take effect until 60 days after it is published in the 
Federal Register. This action is not a

[[Page 18477]]

``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 761

    Environmental protection, Hazardous substances, and Polychlorinated 
biphenyls.

    Dated: March 25, 2014.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.

    For the reasons set out in the preamble, title 40, chapter I of the 
Code of Federal Regulations is amended as follows:

PART 761--[AMENDED]

0
1. The authority citation for Part 761 continues to read as follows:

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

Subpart E--[Amended]

0
2. Section 761.80 is amended by revising paragraph (j) to read as 
follows:

Sec.  761.80  Manufacturing, processing and distribution in commerce 
exemptions.

* * * * *
    (j) The Administrator grants the United States Defense Logistics 
Agency's April 23, 2013 petition for an exemption for 1 year beginning 
on July 1, 2014, to import up to 1,014,222 pounds of PCBs and PCB Items 
stored or in use in Japan as identified in its petition for disposal.
* * * * *
[FR Doc. 2014-07393 Filed 4-1-14; 8:45 am]
BILLING CODE 6560-50-P
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