[Federal Register Volume 61, Number 53 (Monday, March 18, 1996)]
[Rules and Regulations]
[Pages 11096-11109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6448]




[[Page 11095]]

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Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Parts 9 and 761



Disposal of Polychlorinated Biphenyls; Import for Disposal; Final Rule

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

[[Page 11096]]


ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9 and 761

[OPPTS-66009B; FRL-5354-8]
RIN 2070-AC01


Disposal of Polychlorinated Biphenyls; Import for Disposal

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On December 6, 1994, EPA proposed to allow the import and 
export of Polychlorinated Biphenyls (PCBs) for disposal at 
concentrations of 50 parts per million (ppm) or greater under certain 
circumstances. This final rule promulgates regulations at 40 CFR part 
761, subpart F to permit the import of PCBs for disposal at 
concentrations of 50 ppm or greater. Today's rule continues to allow 
the import and export of PCBs for disposal at concentrations less than 
50 ppm. Those portions of the December 6, 1994, proposed rule 
addressing other issues, including export of PCBs for disposal at 
concentrations of 50 ppm or greater and other transboundary shipments 
of PCB waste, will be addressed in a separate Federal Register notice 
at a later date. This rule will provide for the sensible management of 
PCB waste imports, consistent with hazardous waste import regulations, 
and the United States' obligations under international agreements. This 
rule will benefit the United States by facilitating the safe removal of 
PCBs from areas near the United States' borders, as well as the world 
environment in general, and this rule will produce economic benefits 
for the United States.

DATES: In accordance with 40 CFR 23.5, this rule is promulgated for 
purposes of judicial review at 1 p.m. eastern standard time on March 
18, 1996. Because this final rule relieves a regulatory restriction, 
under section 553(d) of the Administrative Procedures Act (APA), this 
final rule is also effective on March 18, 1996.

FOR FURTHER INFORMATION CONTACT: Susan B. Hazen, Director, 
Environmental Assistance Division (7408), Office of Pollution 
Prevention and Toxics, Rm. E-543B, Environmental Protection Agency, 401 
M St., SW., Washington, DC 20460, (202) 554-1404, TDD: (202) 554-0551, 
FAX: (202) 554-5603 (document requests only), e-mail: TSCA-
H[email protected].

SUPPLEMENTARY INFORMATION:

I. Overview of Rulemaking

A. Purpose of this Final Rule

    In the Federal Register of December 6, 1994 (59 FR 62788), EPA 
issued a notice of proposed rulemaking to amend the polychlorinated 
biphenyl (PCB) rules at 40 CFR part 761, promulgated under section 6(e) 
of the Toxic Substances Control Act (TSCA). Comprehensive changes were 
proposed for the PCB regulations which included, among other things, 
the requirements for determining PCB concentration; marking, storage 
and disposal; decontamination levels and procedures; reporting and 
recordkeeping requirements; and use authorizations. In addition, EPA 
proposed to allow the import and export of PCBs for disposal at 
concentrations of 50 ppm or greater under certain circumstances. 
Comments were specifically solicited on retaining the prohibitions on 
transboundary shipments of PCB waste for purposes of disposal, on 
removing the prohibitions, and on specific regulatory language proposed 
at Sec. 761.20(b) and (c) that would allow import and export of PCB 
waste under certain circumstances with appropriate administrative 
controls (see 59 FR 62816-62818).
    On June 6 and 7, 1995, EPA held a public hearing on the proposed 
PCB Disposal Amendments, including the proposed import provision, in 
Arlington, Virginia. A transcript of that hearing was placed in the 
public record.
    In response to considerable public interest in the proposal to 
allow importation of PCBs for disposal, EPA has expedited its final 
action on the portion of the PCB Disposal Amendments addressing import, 
and is promulgating these provisions in today's final rule. The other 
regulatory changes proposed in the PCB Disposal Amendments, including 
those relating to export for disposal at concentrations of 50 ppm or 
greater and other transboundary shipments of PCB waste, will be 
addressed in a separate Federal Register notice at a later date.

B. Statutory Authority

    This final rule is issued pursuant to section 6(e)(1) of TSCA. 
Section 6(e)(1) of TSCA gives EPA the authority to promulgate rules to 
prescribe methods for the disposal of PCBs (15 U.S.C. 2605(e)(1)).
    When EPA adopted a year-long open border policy in 1979, it 
explained that, while the Agency has concurrent authority to regulate 
import of PCB waste for disposal under both section 6(e)(1) and section 
6(e)(3), it was doing so under the authority of section 6(e)(1):

    In [establishing the open border policy], EPA has reviewed 
whether the regulation of imported and exported PCB wastes for 
disposal should be accomplished under section 6(e)(1) of TSCA or 
under section 6(e)(3). While section 6(e)(3)(A)(i) could be read to 
allow regulation of the import of PCB wastes for disposal, section 
6(e) treats PCB disposal as a separate matter under section 6(e)(1), 
which allows comprehensive regulation of the disposal of PCBs. 
Accordingly, EPA has elected to regulate import and export of PCB 
waste for disposal under section 6(e)(1). (44 FR 31514-31516; May 
31, 1979.)

    After the border was closed in 1980, EPA relied on its authority 
under section 6(e)(3) in accepting and considering exemption petitions 
for specific transboundary shipments of PCB waste at concentrations of 
50 ppm or greater. Such exemptions were rarely granted.
    Under its section 6(e)(1) authority, EPA is implementing in this 
rule a broad-based approach to import for disposal that EPA believes 
carries out Congress' intent that EPA take action to prevent 
unreasonable risks of injury to health and the environment in the 
United States from PCBs.
    Under section 6(e)(1) EPA has promulgated a series of disposal 
regulations which support a consistent course of action to promptly 
dispose of regulated PCBs in a manner which limits releases to the 
environment to the best levels achievable by technology at the time the 
regulations were promulgated. Section 761.65 requires disposal of PCBs 
within 1 year of the time the PCBs are designated a waste. Part 761, 
subpart D prescribes standards which are used for issuing disposal 
approvals. EPA believes that PCB wastes which are not disposed of for 
extended periods of time or which are not disposed of in facilities 
providing equivalent protection from release to the environment may 
pose an unreasonable risk of injury to health and the environment. 
Therefore, EPA believes today's rule which allows foreign generated PCB 
wastes to be disposed of in a prompt and safe manner in the United 
States is consistent with the requirements it has promulgated for 
storage and disposal of domestically generated PCB wastes. Under TSCA 
section 6(e), EPA makes decisions using the concept of ``unreasonable 
risk.'' This includes the consideration of the risks of harm to health 
or the environment in the United States and of the costs of regulation 
in the United States. EPA does not consider risks that occur outside 
the United States except to the extent those risks may result in risks 
in the United States, and EPA does not consider costs of regulation to 
parties

[[Page 11097]]
outside the United States. Thus EPA's analysis for this rulemaking does 
not consider impacts of the rule that take place outside the United 
States.
    Because EPA is promulgating this rule to allow import for disposal 
under its section 6(e)(1) authority, it is no longer necessary for 
persons who wish to import PCBs for disposal in accordance with this 
rule to apply for case-by-case exemptions under section 6(e)(3). 
However, to the extent that persons wish to engage in import activity 
outside the scope of this rule (i.e., an activity other than importing 
PCB waste for disposal), section 6(e)(3) petitions may still be filed 
with the Agency.

C. Coordination with International Agreements

    On May 5, 1992, the Basel Convention on the Control of 
Transboundary Movements of Hazardous Wastes and Their Disposal (Basel 
Convention) entered into force. The Basel Convention imposes a series 
of obligations on Parties regarding transboundary shipments of 
hazardous waste. One provision of the Convention of significance to the 
implementation of today's rule is that Basel Parties are prohibited 
from exporting or importing wastes that fall within the scope of the 
Convention to or from non-Parties unless a separate agreement or 
arrangement exists with non-Parties regarding transboundary shipments 
of such wastes. (For a more detailed explanation of the Basel 
Convention, the content and role of these separate agreements and the 
text of the Convention, please see the Federal Register of May 13, 1992 
(57 FR 20602).)
    On March 21, 1990, the United States signed the Basel Convention. 
Signature indicates that the United States will not take action that 
would defeat the object and purpose of the Basel Convention. However, 
the United States has not yet ratified the Basel Convention. Since the 
United States is not a Party to the Convention, Parties to the 
Convention may not trade in Basel-covered wastes with the United States 
absent a separate bi- or multi-lateral agreement or arrangement between 
the concerned governments covering such wastes (e.g., PCB waste) that 
meets the conditions specified in Article 11 of the Basel Convention. 
The lack of such an agreement or arrangement could prevent the export 
of PCB waste from a Basel Party to the United States for disposal.
    Nothing in today's rule alters the existing authority of the United 
States to prohibit an import where the import is not in compliance with 
an agreement or arrangement that the United States has entered into 
regarding PCB waste imports; or where the import is not in compliance 
with other international obligations of the United States.

D. Coordination with Other EPA Regulations

    Section 9(b) of TSCA mandates EPA to ``. . .coordinate actions 
taken under this Act with actions taken under other Federal laws. . . 
.'' EPA believes that today's final rule has the advantage over the 
proposed rule and the current ``Closed Border Policy'' of making the 
regulation of importation of PCBs for disposal more consistent with the 
regulations on the importation of hazardous wastes under the Resource 
Conservation and Recovery Act (RCRA), 40 U.S.C. 6901 et seq. Currently, 
under RCRA, EPA generally does not restrict the importation of 
hazardous wastes from abroad for disposal at permitted facilities in 
the United States, apart from certain controls adopted pursuant to 
relevant international instruments, such as the U.S.-Canadian Agreement 
Concerning the Transboundary Movement of Hazardous Waste. EPA believes 
that without appropriate controls, the importation of PCBs for disposal 
could pose unreasonable risks to human health and the environment in 
the United States. Therefore, EPA believes that it is in the public 
interest to regulate the importation of PCBs for disposal.
    The need to make a determination of no unreasonable risk under TSCA 
mitigates against an unrestricted open border policy for PCBs. 
Therefore, today's rule will allow for importation of PCB wastes with 
minimal disruption, including PCB-containing hazardous wastes that 
formerly were barred from entry into the United States. For the reasons 
explained below in Unit I.E., EPA determines that, with proper control, 
including prior notification, tracking, and storage and disposal in 
approved facilities, a less restrictive policy concerning the import of 
PCBs for disposal, which is more consistent with the program for 
hazardous wastes under RCRA, will not present an unreasonable risk of 
injury to health or the environment.
    In addition to compliance with the TSCA PCB regulations at 40 CFR 
part 761, importers should be aware that other requirements may also 
apply to imports of PCBs. For instance, importers must provide a TSCA 
Section 13 Importer's Certification to U.S. Customs in accordance with 
40 CFR part 707, subpart B. Further, all parties should be aware that 
imported PCB waste may be subject to regulation under RCRA Subtitle C 
as a hazardous waste, unless it satisfies the RCRA exemption set forth 
in 40 CFR 261.8 or another applicable exemption. Section 261.8 exempts 
generally from RCRA Subtitle C regulations the disposal of certain PCB-
containing dielectric fluid and electrical equipment containing such 
fluid authorized for use under 40 CFR part 761. EPA believes this RCRA 
exemption should apply to the disposal of PCB waste that meets the 
criteria of Sec. 261.8 regardless of whether the dielectric fluid or 
electrical equipment containing this fluid originated domestically or 
abroad. (These fluids and equipment may not be imported for use, but 
may be imported for disposal.) There is no reason to treat these 
imported fluids and equipment differently from their domestic 
counterparts for purposes of this disposal exemption and Sec. 261.8 was 
not intended to result in different treatment of the same type of 
materials. However, if imported PCB waste meets the RCRA definition of 
a hazardous waste and fails to meet the Sec. 261.8 exemption, then it 
will have to be handled in compliance with all applicable RCRA 
regulations (as is the case with domestic PCB waste).
    Nothing in this rule affects or obviates obligations affecting PCBs 
under other laws or regulations. The importer, and the owner or 
operator of each storage and disposal facility managing imported PCBs 
for disposal are responsible for determining and complying with all 
other applicable Federal, State and local laws and regulations 
pertaining to the management of this material.

E. Unreasonable Risk Finding

    In this final rule, EPA is not implementing the proposed import 
notice provision that would have required importers to justify, on an 
individual shipment basis, how importing PCB waste for disposal would 
be in the interests of the United States. Based on additional data 
supplied by commenters, in particular comments demonstrating the very 
low risks associated with regulated transportation, EPA has determined 
that the risk associated with the import for disposal of PCBs would be 
insignificant under the circumstances outlined in this rule, and these 
insignificant risks are outweighed by significant benefits. Provided 
import of PCBs for disposal is conducted under the circumstances 
outlined in this final rule, including notification of the Agency, EPA 
finds that such import will not present an unreasonable risk of injury 
to health or the environment in the United States. This is because in 
the United States all PCBs imported for disposal are subject to U.S. 
Department of Transportation regulations for hazardous materials during 
transport, and must be

[[Page 11098]]
manifested, stored, and disposed of only in facilities with PCB storage 
and disposal approvals, or laboratories handling limited quantities. 
The United States will realize significant benefits from this rule, 
including the amelioration of the risks posed to the United States by 
the presence of PCBs in the world environment. United States industry 
stands to gain an economic benefit of $50 - $100 million annually from 
PCB waste imports, and additional jobs may be created.
    EPA received substantial written and oral comments in response to 
the proposed PCB Disposal Amendments and the proposed PCB Exemptions 
Rule (59 FR 62875, December 6, 1994) on the risk of transportation for 
disposal. Most commenters addressing the transportation issue argued 
that the risks involved in transportation for disposal are negligible. 
The American Trucking Association's (ATA) comments included a review of 
the Department of Transportation's (DOT) statistics, and found that 
only one ``serious incident'' involving PCB transport occurred in the 
period from January 1, 1990 to November 15, 1994. (During that period, 
a ``serious incident'' was defined by DOT to be an accident or 
derailment, an evacuation, a death, an injury requiring hospitalization 
or lost work time, or a road closing. (comment C1-047).) For 
comparison, 1,923 serious incidents involving hazardous wastes occurred 
from January 1, 1990 to December 31, 1995, and during that same period, 
16,074 serious incidents involving all hazardous materials (including 
wastes) occurred. Also, during that time, 14 serious incidents 
involving Class 7 radioactive material occurred. ATA estimates that 
upwards of 500,000 shipments of hazardous materials and 5,000 shipments 
of hazardous wastes are made daily.
    The Environmental Technology Council (ETC) noted in its comments 
that over 200,000 tons of RCRA hazardous waste per year move across the 
U.S.- Canadian border, including pesticides and other chlorinated 
hydrocarbons with hazard profiles similar to PCBs. Comments supporting 
the safe shipment of PCBs for disposal were also provided by S.D. 
Myers, Inc. EPA Region IV, in a 1986 study, concluded that the risk 
associated with a PCB transportation spill would be slight (Ref. 5). 
Based on this data and analysis, EPA finds that the transportation of 
PCBs imported into the United States for disposal presents little risk 
of injury to health or the environment.
    EPA also finds that the storage and disposal of imported PCBs at 
facilities approved under TSCA, as required by this rule, presents 
little risk of injury to health or the environment. In developing the 
disposal regulations at 40 CFR part 761, subpart D, EPA determined that 
the benefits of disposal (be that destruction, decontamination, or 
long-term containment) outweighed the risks associated with these 
processes, especially since EPA regulations require the use of the best 
available technology standards for destruction and long-term 
containment at approved facilities. As part of its approval process for 
PCB waste management facilities, EPA evaluates the technology and 
procedures of each facility to ensure its ability to meet these 
standards. These assessments presume a conservative scenario with 
regard to concentration of constituents and feed-rate. The operating 
conditions of the approval are set so that they do not exceed the 
values established in the technical assessment and during the 
demonstration test. Therefore, since each disposal approval establishes 
operating conditions based on waste characteristics demonstrated to the 
Agency as part of the approval process, disposing of foreign-generated 
PCB waste in U.S. disposal facilities will not increase the risks of 
disposal over and above the risks calculated at the time the PCB 
disposal approval was issued. In approving facilities under 40 CFR part 
761, subpart D, EPA ensures that disposal facilities are designed and 
operated in accordance with the regulatory standards. While PCBs 
currently in storage or in the environment outside the United States 
pose less immediate risk of injury to health and the environment in the 
United States than PCBs in the United States today, they do pose some 
risk. EPA believes that the benefits of the removal of these PCBs 
outside the United States outweighs any risks associated with their 
disposal in TSCA-approved facilities.
    The importation of PCBs for disposal could theoretically cause 
situations posing risks of injury by creating a shortage of disposal 
capacity for domestic PCB disposers, especially in the initial period 
of this change in policy. Theoretically, such a shortage could raise 
disposal prices enough to slow the removal of PCBs from service in the 
United States, or to encourage the improper disposal of PCBs, either of 
which might result in increased exposure to PCBs. While the import of 
PCB wastes may cause minor increases in disposal prices over the short-
term, EPA does not believe that import will cause a shortage of storage 
or disposal capacity. With certain exceptions, comments on this rule 
confirm that the U.S. PCB disposal companies have generally experienced 
an excess of capacity in recent years.
    Furthermore, EPA believes the amounts of PCBs available for import 
are small in comparison to domestic generation, and pose little threat 
of swamping domestic disposal capacity. For instance, a recent report 
estimates there are 172,722 metric tons of PCB materials in Canada 
(Ref. 3). Mexico reportedly has 60,000 metric tons of PCB materials 
(Ref. 1). EPA believes all of this waste is unlikely to be imported 
into the United States, particularly not within a single year. For 
comparison, 842,050 tons of domestic PCB waste were disposed of at U.S. 
commercial facilities in 1993. Paradoxically, allowing import of PCBs 
could even stabilize disposal prices for U.S. PCB waste generators in 
the future, by ensuring that U.S. PCB disposal facilities continue to 
have an economically viable market, and continue to remain in the PCB 
waste disposal business.
    Despite EPA confidence that import will not hinder United States 
generators from disposing of PCBs, as a safety measure, today's rule 
will provide a storage capacity cushion for domestic PCB waste. EPA is 
requiring owners of storage and disposal facilities accepting imported 
PCB waste to certify that no more than 70% of their facilities' 
approved and operating storage capacity is being used at any one time 
for imported PCB waste from all sources. This will ensure disposal 
firms handling imported waste cannot use all their resources for 
imported waste to the exclusion of domestic customers. Such a situation 
might increase risk by forcing domestic generators to store their waste 
for extended periods of time. The 70% capacity limit will facilitate 
compliance with the existing requirements for disposal of PCB waste 
within 1 year of removal from service (see Sec. 761.65(b)) by ensuring 
adequate access to disposal capacity for domestic generators. This 
provision will expire after 3 years. Based on the above cited 
inventories of waste in Canada and Mexico, EPA estimates that this 3-
year period will be sufficient to allow for any surge of waste imports 
generated by this new opportunity to dispose of PCB waste in the United 
States. After that time, EPA believes that the PCB disposal market will 
have compensated for any effects of additional foreign waste, and 
removal of this capacity provision will not deny domestic

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generators access to disposal capacity or contribute to the need to 
store PCBs for more than 1 year.
    EPA now concludes that to attempt to regulate individual import 
shipments of PCBs based on the risk those PCBs would pose to health or 
the environment in the United States if they were to remain in storage 
or use outside of the United States is impractical and inequitable. 
This conclusion is based on the lack of any established scientific 
methods in use to measure the relative risk of one cross-border 
exposure scenario with another. This issue is further complicated by 
the persistence of PCBs in the environment and their world-wide 
dispersal. For instance, research supporting EPA's report to Congress, 
Deposition of Air Pollutants to the Great Waters (EPA-453A/R-93-055, 
May, 1994), indicates that up to 89% of the current PCB loading for 
Lake Superior occurs through air deposition, much of it from distant 
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 
U.S. facilities poses less risk of injury to health or the environment 
in the United States than the continued presence of PCBs in other 
countries, since proper disposal in this country provides protection 
against possible hazards from improper disposal elsewhere.

II. Discussion of the Rule and Comments

A. Background

    Currently, EPA allows the import for disposal of PCBs only at 
concentrations less than 50 ppm. In response to periodic requests from 
individuals to import PCBs for disposal at higher concentrations, and 
to ensure that the PCB rules are not inconsistent with the conditions 
of the Basel Convention, EPA proposed in the PCB Disposal Amendments 
(59 FR 62788, December 6, 1994) to allow such imports under certain 
circumstances, in the belief that doing so would not pose an 
unreasonable risk of injury to health or the environment. EPA 
specifically proposed to create certain categorical exemptions to the 
general ban on import for disposal of PCBs at 50 ppm or greater. For 
PCB waste not included in these categorical exemptions, EPA proposed to 
establish a petition procedure to allow import on a case-by-case basis. 
EPA also proposed to clarify the status of certain transboundary 
shipments of PCBs which the Agency does not consider import for 
purposes of these regulations. Outside of these excepted activities, 
the proposed rule retained the general prohibition on the import of 
PCBs for disposal at concentrations of 50 ppm or greater.
    EPA also requested comment on the extent to which the U.S. border 
should be opened to transboundary shipments of PCBs for disposal, 
noting that the choices available for the final rule ranged from 
allowing all imports under section 6(e)(1) to maintaining the generally 
closed border status, and might include opening the border to PCBs from 
a limited geographical area such as the Great Lakes drainage basin (see 
59 FR 62816).

B. Summary of Comments

    Oral and written comments in response to the proposed import 
provisions were submitted by approximately 32 separate parties. 
Comments are available for review in the docket to this final rule. 
EPA's response to these comments are summarized in a Response to 
Comments document, which is also available in the docket to this rule.
    In general, comments submitted in writing and presented orally at 
the public hearing strongly supported opening the border as broadly as 
possible to imports of PCBs for disposal. The general sentiment of 
commenters was that the time was appropriate for a relaxation of EPA's 
1980 ``Closed border policy'' (May 1, 1980, 45 FR 29115) on PCB wastes 
because the United States has the technology, capacity, and ability to 
dispose of PCB waste generated in other countries. Commenters generally 
supported allowing imports of wastes from foreign countries, with 
particular emphasis on PCB wastes coming from United States firms with 
foreign operations, and from Mexico and Canada. Many commenters opposed 
restricting imports to instances where ``the interests of the United 
States'' was narrowly interpreted to apply to PCBs in a narrow 
geographical area just outside the country's borders, where 
mismanagement of those wastes could pose an immediate risk of exposure 
and thus pose a risk of injury to health and the environment in the 
United States.
    Little support was expressed for the actual process proposed by 
EPA. Generally, commenters indicated that the proposed petition and 
review mechanism was too burdensome and not likely to provide the 
relief intended. One commenter, American Trucking Association (C047), 
summarized this belief: ``While such case-by-case review may not be a 
shipment-by-shipment review nor subject to notice-and-comment 
rulemaking, the policy still provides inadequate relief. . .The 
petition process still creates market barriers between similarly 
qualified potential importers. . .EPA should. . .allow transborder 
movements of PCBs at least on a level no more restrictive than 
currently exists for hazardous waste.'' Several commenters suggested 
that at a minimum, EPA establish a deadline for response to petitions, 
and others recommended EPA grant petitions on a class basis for 
specific types of imports (i.e., allow only liquids, or recyclable 
metals, or waste from countries with no disposal capacity).
    Even greater concern was expressed in comments about the actual 
criteria that EPA would use to review and rule on petitions to import 
waste as proposed. The absence of a description of the review process 
and the potential for inequity in EPA's decision-making process were 
noted as uncertainties that could negatively impact the U.S. disposal 
industry's planning process and hurt business competitiveness. 
Commenters indicated that if EPA retained the review process in the 
final rule, it should elaborate on the time frame for a decision and 
the actual standards it would use in accepting or rejecting petitions 
to import PCB waste (e.g., how EPA intends to determine whether an 
import is in the interests of the United States). Preference was 
expressed for the replacement of the proposed petition process with a 
codified list of conditions on import, allowing unrestricted import for 
disposal within the bounds of those conditions, with no notification to 
EPA.
    Not all commenters supported the general proposal to open the 
border to PCB wastes at concentrations of 50 ppm and above. One 
commenter expressed concern that allowing imported PCBs to compete for 
finite domestic disposal capacity would increase PCB disposal costs for 
domestic generators such as itself. Adequate domestic disposal capacity 
was one of the concerns which caused EPA to close the borders in 1980 
and it remains an issue that is being addressed in this rulemaking. The 
1980 border closing was focused almost exclusively on waste disposal 
capacity in Canada. Capacity now exists in Canada as indicated in 
written and oral comments by Canadian disposal firms (e.g., fixed-site 
incinerator at Swan Hills, Alberta; mobile incinerators, etc.).
    Comments opposing any extension of the current open border policy 
for waste at concentrations less than 50 ppm PCBs, to PCBs at 
concentrations of 50 ppm or greater, were submitted by the firm of 
Hogan & Hartson and others on behalf of several Canadian disposal

[[Page 11100]]
concerns. The commenters argued that EPA does not have the statutory 
authority under TSCA section 6(e)(1) to regulate import for disposal; 
rather, all imports must be regulated under the statutory ban on 
manufacture at section 6(e)(3). The commenters also maintained that by 
this rule EPA was making a significant policy change, and that EPA has 
failed to support its action with data or analysis, as required by the 
Administrative Procedure Act (APA) 5 U.S.C. 551 et seq. The commenters 
also questioned the appropriateness of the proposed rule under existing 
international law governing the shipment of hazardous wastes.
    As discussed in Unit I.B. of this preamble under the heading 
``Statutory Authority,'' EPA believes it has the authority to regulate 
import-for-disposal under TSCA section 6(e)(1).
    EPA closed the border in 1980 primarily because of both limited 
disposal capacity in the United States and no appropriate disposal 
capacity in Canada, the country which presented the greatest potential 
for exports to the United States. Today, that situation has changed 
dramatically, with excess U.S. disposal capacity at an all time high, 
and with the presence of adequate disposal capacity in Canada. EPA 
believes that today's rule is more in harmony with the international 
obligations of the United States pertaining to the transboundary 
shipment and disposal of hazardous wastes than the previous closed 
border policy.
    EPA received a late comment that any decision by the Agency to 
generally open the border to imports (and exports) would not have been 
properly announced in the Federal Register and therefore potential 
commenters did not have an opportunity to provide comment. EPA 
disagrees with this comment. The notice proposing to open the border 
clearly requested comments on a broad range of options. The December 6, 
1994, Federal Register notice stated: ``EPA is requesting comment on 
the circumstances under which the U.S. border should be opened to 
transboundary shipments of PCBs for disposal. The options range from 
allowing all imports for disposal under section 6(e) to maintaining the 
current closed border status, and might include opening the border to 
PCBs from a limited geographic area such as the Great Lakes drainage 
basin'' (59 FR 62816). Many of those who provided written comments or 
oral comments at the public hearing on the issue of opening the border 
availed themselves of EPA's request. EPA also notes that the written 
comment period on this rule was extended once, and totalled 120 days. 
The public hearing was held after the close of the written comment 
period, and there was opportunity to file written reply comments after 
the public hearing. Therefore, EPA rejects the argument of a lack of 
prior notice and opportunity for comment on this issue.

C. Discussion of Today's Final Rule

    In response to the general support for an expansion of the current 
exception (i.e., the import of PCBs for disposal at concentrations of 
less than 50 ppm) to allow import of higher concentration waste under 
section 6(e)(1) of TSCA, and because EPA has been able to make a 
finding of no unreasonable risk, EPA is allowing imports of PCB waste 
at concentrations at 50 ppm or greater, under certain conditions. EPA 
is adopting the import for disposal portion of the proposed rule, with 
modifications to eliminate EPA review and approval of each import 
notice. This final rule eliminates these notice requirements for the 
import of limited quantities of PCB waste for laboratory analysis or 
for treatability studies. These activities facilitate the disposal 
process, and import of these limited quantities will not pose an 
unreasonable risk to health or the environment. For clarity, EPA is 
finalizing the provisions of today's rule under a new subpart F of the 
PCB regulations at 40 CFR part 761, which will include all provisions 
pertaining to import, export, and other transboundary shipments of PCB 
waste. References to the new subpart F are being included at 
Secs. 761.20(b) and (c)(3) and 761.60(h) and definitions are being 
added to Sec. 761.3 for ``Basel Convention,'' ``Importer,'' and 
``Treatability study.''
    1. Import notice. Under this final rule at Sec. 761.93(b), 
importers of PCBs and PCB Items are required to submit a PCB waste 
import notice to EPA's Office of Enforcement and Compliance Assurance. 
EPA must receive this notice at least 45 days before the first import 
enters the United States. The notice must contain specific information, 
including the identity of the importer (company name, name of contact 
person, address, telephone number, facsimile (fax) number, EPA 
identification number), the identity of the foreign generator (company 
name, contact name, address -- including country, telephone and fax 
numbers), countries of transit (if any), port of entry in the United 
States, and methods of transport (e.g., by ship or rail). The notice 
must identify the types of PCB waste (e.g., transformers, capacitors, 
oil, soil) and PCB concentrations, the number and frequency of 
shipments, maximum shipment size, and the maximum total quantity to be 
imported during the period covered by the notice. Projected dates of 
shipment must be included, as well as the period of time covered by the 
import notice (not to exceed 12 months). The notice must identify each 
storage and disposal facility which will be managing the PCB waste 
covered by the notice (by company name, contact name, address, 
telephone and facsimile numbers, and EPA identification number). 
Imported PCB waste must be stored and disposed of in TSCA-approved 
commercial facilities, unless otherwise noted in Sec. 761.93(b). The 
notice must also include written certifications from each storage or 
disposal facility identified in the notice, including the importer if 
applicable, that the facility has the capacity to store the waste and 
that no more than 70% of their facilities' approved and operating 
storage capacity is being used at any one time for imported PCB waste 
from all sources, the facility agrees to accept the waste, and has the 
appropriate TSCA approval(s) to manage the waste. In addition, the 
importer must certify that it is a TSCA-approved commercial storer or 
disposer of PCBs, and that it agrees to accept full financial liability 
for the waste from the time it enters the United States until it has 
been completely and finally disposed of. Such liability includes the 
costs associated with any spills, cleanups, and additional disposal 
that may occur. Finally, the importer must certify the completeness and 
accuracy of the information included in the notice, using existing 
certification language at 40 CFR 761.185(e).
    One commenter stated that EPA should require disposers accepting 
imported PCB waste to notify all their customers of such imports, so 
those customers could assess their liability. EPA does not believe this 
is necessary, in that before it accepts any imported PCB waste, the 
importer, which must be a commercial storage or disposal facility, must 
accept full financial liability for this waste. Further arrangements 
for protection from liability for the mismanagement of imported PCBs 
are best dealt with in the contractual arrangement between the facility 
and their domestic PCB waste clients.
    One notice will be sufficient for all shipments by the importer for 
12 months from the date of the first import, so long as all shipments 
are accurately described by that notice. A change in import practices 
during that year which deviates from the notice, such as exceeding the 
quantities identified in the notice, commencement of import

[[Page 11101]]
from a new country, or storage or disposal in a different facility, 
requires that a new notice be submitted, and received by EPA 45 days 
prior to the change occurring. A notice submitted to report such 
changes in import practice should indicate that it is an amendment of 
an earlier notice. By requiring an import notice only once every 12 
months, rather than before every shipment, EPA believes that today's 
final rule will impose a significantly lighter reporting burden and 
significantly fewer delays on the regulated community than shipment-by-
shipment notification, while still retaining sufficient EPA oversight. 
If a series of import shipments will continue beyond 12 months, the 
importer must submit a new import notice to cover the activity which 
continues beyond the initial 12-month notice period. Provided an 
importer submits subsequent notices punctually so that they are 
received by EPA at least 45 days before the annual expiration of the 
first import notice, the importer should be able to continue importing 
indefinitely without interruption, assuming the notices are properly 
filed and complete. EPA believes that 45 days are necessary for it to 
review the import notice and investigate any associated issues, such as 
disposal capacity at a facility, or U.S. international obligations 
pertaining to shipments of waste from specific countries.
    EPA recognizes that some of the information required to be 
submitted in a PCB waste import notice may also be required to be 
submitted to EPA pursuant to certain international agreements. With the 
exception of the information and certifications required by 
Sec. 761.93(b)(1)(iii)(F), (G), and (H), importers may elect to include 
information in the PCB waste import notice in the same format as the 
information is submitted under the international agreement. Under all 
circumstances, the specific certifications required by 
Sec. 761.93(b)(1)(iii)(F), (G), and (H) must be included in each PCB 
waste import notice. EPA encourages importers to submit information 
using the same form submitted under the international agreement, 
provided the form contains the information required by 
Sec. 761.93(b)(1)(iii)(A)-(E).
    2. Confidential business information. EPA believes that the 
information requested in PCB waste import notices will generally not 
warrant treatment as confidential business information (CBI) pursuant 
to section 14 of TSCA. EPA believes that most, if not all, of the 
information requested in the PCB waste import notice, will not meet the 
criteria established for TSCA CBI. Also, much of this information would 
be accessible to the public through other avenues, such as on manifest 
forms, or through notices provided under other statutes, such as RCRA, 
or under international agreements. For instance, while some 
international agreements, such as the bilateral agreement between the 
United States and Canada on hazardous waste, have provisions for CBI, 
many others, such as the Basel Convention, contain no provisions for 
such information.
    EPA strongly recommends that importers not make claims of CBI on 
their import notices. Notices containing CBI claims will require an 
enhanced level of review by the Agency. If CBI claims are made, such 
claims should be accompanied, at the time the claim is made, by a 
written justification substantiating each item of the claim pursuant to 
40 CFR 2.204(e). In accordance with the procedures set forth in TSCA 
and 40 CFR part 2, EPA will routinely request such substantiation from 
the importer if it does not accompany the claim of confidentiality. EPA 
intends to challenge CBI claims, unless the submitter satisfactorily 
demonstrates a valid need to maintain confidentiality, and can 
demonstrate that the information is not accessible to the public 
through other avenues, such as a government-to-government notification 
under the Basel Convention, or through manifesting.
    Any claim of confidentiality must accompany the PCB waste import 
notice at the time it is submitted to EPA. To make a CBI claim, the 
importer must submit two copies of each PCB waste import notice. One 
copy of the notice must contain all information required in 
Sec. 761.93(b)(1)(iii). In this copy of the notice, the submitter must 
clearly highlight or mark the specific items claimed as confidential on 
each page, and identify each item with the label ``TSCA Confidential 
Business Information.'' This notice must be double wrapped, and the 
inner envelope marked ``PCB Waste Import Notice -- CBI Claimed.'' The 
outer envelope must be addressed to: TSCA Document Processing Center 
(7407), Office of Pollution Prevention and Toxics, U.S. Environmental 
Protection Agency, Washington, DC 20460. Substantiation of CBI claims 
must be submitted with this copy. The second, ``sanitized,'' copy must 
contain all information required in the first copy, with the exception 
that all information claimed as confidential in the first copy must be 
deleted. This copy must be sent to the address used for non-CBI notices 
(Attn: PCB Waste Import Notice, Office of Enforcement and Compliance 
Assurance, Office of Compliance (2222A), U.S. Environmental Protection 
Agency, 401 M St., SW., Washington, DC 20460). EPA will not consider a 
PCB waste import notice that contains CBI claims to be complete for 
purposes of this rule, nor initiate the 45-day time period, until both 
copies and the written substantiation are received by EPA.
    3. Review of import notice. EPA will screen incoming PCB import 
notices for compliance with the notice conditions required by 
Sec. 761.93(b)(1). EPA may refuse entry of individual PCB waste import 
shipments in instances where the import notice is incomplete, 
inaccurate, or the designated storage or disposal facility is not 
approved for the type, concentration, or quantity of waste proposed. 
EPA is also reserving the right to refuse entry based on shortage of 
the storage or disposal capacity at the designated facility (including 
non-compliance with the 70% storage capacity requirement), or non-
compliance with international law or obligations that would result from 
a given import. In addition, EPA may always at a later date bring an 
enforcement action against a shipment which has already entered the 
United States.
    4. Regulation of PCBs after import. EPA is also including a 
provision at Sec. 761.93(b)(2) in the final rule to address the storage 
and disposal of imported PCB wastes in the United States. Imported PCBs 
and PCB Items are subject to all applicable marking provisions of 
subpart C, and must be stored and disposed of in accordance with 
subpart D. All storage container provisions of subpart D apply, as well 
as any applicable Department of Transportation (DOT) standards.
    In general, all PCB wastes imported into the United States are 
regulated under 40 CFR part 761 in the same manner as domestic PCBs 
except that imported PCB wastes must be stored and disposed of in a 
facility with an appropriate commercial storage or disposal approval 
that has been issued under section 6(e) of TSCA. Imported PCB wastes 
may not be stored at a facility which is not approved as a commercial 
storer of PCB waste, nor may they be disposed of at a facility without 
a TSCA disposal approval issued by EPA, such as a municipal solid waste 
landfill, boiler, industrial furnace, or high-efficiency boiler. For 
instance, intact and non-leaking fluorescent light ballasts and drained 
PCB-contaminated electrical equipment from domestic sources are 
currently allowed under TSCA to be disposed of as municipal solid 
waste. However, if these PCB items are imported for

[[Page 11102]]
disposal, they must be treated as PCB waste. They must be manifested, 
stored at a commercial storage facility, and disposed of in a TSCA-
approved disposal facility (e.g., incinerator or TSCA landfill). The 
handling of all imported PCBs and PCB Items as PCB waste subject to 
subpart D is a necessary condition of EPA's finding of no unreasonable 
risk for the import of PCBs for disposal. EPA is mandating the use of 
TSCA-approved commercial storage and disposal facilities for the same 
reason; such facilities have financial assurance to ensure proper 
closure, they must submit annual reports to the Agency, and they have 
Agency approved capacity limits at their storage facilities. These 
conditions are necessary for the Agency to track imported PCB waste, 
and they permit the United States to assure the exporting country that 
the imported PCB waste is being managed in an environmentally sound 
manner.
    Imported PCB waste is subject to the 1 year limit on storage for 
disposal at Sec. 761.65(a). For calculation of the 1 year storage for 
disposal limitation, EPA will consider storage for disposal to initiate 
on the first one of the following three dates, as applicable: (1) The 
date the PCB waste enters a State in the 48 contiguous States; (2) the 
date the PCB waste enters any State, if the waste is to be disposed of 
in that State; (3) the date the waste enters a State outside the 
contiguous 48 States, if the waste is stored in that State for more 
than 10 consecutive days. The first of these instances will be the 
usual situation. The second provision currently is expected to apply to 
waste disposed of at the U.S. Army's disposal facility at Johnston 
Atoll, as this is currently the only TSCA-approved disposal facility 
outside the contiguous 48 States. The third instance is intended to 
prevent the indefinite storage of waste in a State. For instance, 
shipments of waste in transit from another country to the U.S. mainland 
might enter a Hawaiian port for a few days for transfer to another 
vessel. EPA does not consider such a transfer to begin the 1 year 
storage for disposal time period. However, EPA does not wish to allow 
waste to be stored at dockside or in ships for weeks on end. Ten days 
is the existing regulatory limit on such transfer storage, because that 
is the time limit imposed on storage at a transfer facility without 
approval for commercial storage (see Sec. 761.3, definition of a 
``transfer facility''). That is, if waste is stored at a port for over 
10 days, it must be stored by an approved commercial storer, and the 1 
year storage for disposal limit will also commence for that waste. 
Importers should be aware that the 1 year limit on storage for disposal 
automatically precludes the legal import of PCB wastes that cannot be 
disposed of within 1 year, such as some types of mixed PCB-radioactive 
wastes for which there are currently no permanent disposal solutions.
    5. Recordkeeping and manifesting. For purposes of recordkeeping 
under 40 CFR part 761, subpart J, ``General Records and Reports,'' 
importers, other than those who are the initial commercial storer or 
disposer of the waste, are required by Sec. 761.93(b)(3)(i) to keep the 
same annual records required of domestic generators. EPA is not 
requiring importers to keep these records if the waste is imported 
directly upon entry to the importers own facility, because these 
records would be duplicative of those maintained by the facility as a 
commercial storer or disposer under Sec. 761.180(b). Importers who must 
keep the records required of generators, shall keep those records 
distinct from those that the importer maintains in its capacity as a 
commercial storer and disposer. If the importer also happens to be a 
generator of (domestic) PCB waste, and is required to keep annual 
records for those wastes, the annual log must clearly distinguish 
between the imported and domestic wastes. For instance, the log must 
indicate in some manner, such as a code, asterisk, bolding, or separate 
subheadings, each item on the log (manifest numbers, PCB Articles, PCB 
Containers, etc.) that came from a foreign source. The totals required 
at Sec. 761.180(a)(2)(iii) must also include separate subtotals for 
imported wastes in those categories. The log need only distinguish 
imported waste from domestic waste, and need not identify the country 
of origin or subdivide the subtotals by specific country of origin.
    Similarly, all disposers and commercial storers who accept imported 
waste must identify imported wastes as such in their annual logs, and 
provide subtotals for imported wastes in their annual logs and the 
annual report they must submit to EPA pursuant to the requirements at 
40 CFR 761.180(b). Such denoted records and reports will assist EPA in 
monitoring the effect of waste imports on domestic disposal rates and 
disposal capacity.
    Section 761.93(b)(3)(ii) of today's rule makes the part 761, 
subpart K requirements applicable to imported PCB wastes with certain 
modifications. In filling out the manifest, identifying information on 
both the importer and the foreign generator must be substituted for 
information on the generator. The importer must also sign the manifest 
in place of the generator, and obtain the signature of the first U.S. 
transporter. These provisions conform to the requirements of 40 CFR 
part 262, subpart F for the manifesting of imported Hazardous Waste 
under RCRA.
    In general, the importer shall be considered the generator under 
this rule for purposes of compliance with the provisions of subpart K. 
Since importers are required by this rule to be TSCA-approved 
commercial storers or disposers, they are required to have already 
submitted a Form 7710-53 under Sec. 761.205 and received a unique EPA 
identification number.
    Also, EPA is requiring that all imported PCB waste must be 
manifested, even if the importer is also the receiving facility 
indicated on the manifest. That is to say, if a commercial disposal 
facility is importing waste to its own facility, even with its own 
trucks, it must manifest the waste; it cannot claim exemption from the 
manifest requirements as a ``generator'' who has not relinquished 
control over its own waste. This provision also applies to persons in 
the United States importing PCB wastes generated by their own 
facilities abroad. At Sec. 761.207(a), EPA exempted domestic generators 
from manifesting shipments so long as they retained control, to 
encourage consolidation of waste, and because EPA could track the 
waste's movement through the generators' annual records. Since neither 
the rationale nor the control mechanism applies to waste generated at 
foreign sites, EPA is requiring that all PCB waste imported pursuant to 
Sec. 761.93(b) be manifested. EPA recognizes that this will create many 
instances where an importing company will manifest waste to itself. EPA 
is also stipulating that imported PCB wastes always be manifested 
separately from domestic PCB wastes, both to insulate domestic waste 
generators from liability for imported wastes, and to simplify tracking 
of imported wastes for annual records, annual reports, and EPA 
compliance monitoring.
    6. Analytical samples. Under Sec. 761.93(c), EPA is adding a 
provision to today's rule allowing limited quantities of PCB waste to 
be imported into the United States by any commercial storer, disposer, 
or laboratory to determine physical and chemical properties of the 
PCBs. (For purposes of this rule, EPA considers such analysis as a 
disposal related activity, and within the scope of today's rule under 
section 6(e)(1) of TSCA.) This action is being taken in order to 
facilitate storage or disposal,

[[Page 11103]]
and verification of appropriate storage and disposal approval 
conditions and sufficient storage capacity. No prior notification or 
approval is required under this provision. However, laboratories, 
storers, and disposers importing samples should be aware that 
notification may nevertheless still be required for these shipments by 
other Federal, State, or local laws or international treaties. 
Analytical samples are also subject to TSCA section 13 import 
certification (40 CFR 707.20). As with all other PCBs of unknown 
concentration, samples containing unknown concentrations of PCBs must 
be assumed to contain, and treated as if they contain, PCBs at 
concentrations of 50 ppm or greater. All unused PCB waste sample 
material and residuals from any testing must be stored in compliance 
with Sec. 761.65(b) and disposed of in compliance with Sec. 761.60. 
Quantities imported by each importing facility are being limited to 
annual levels of 25 liters for liquids, and 200 kilograms for non-
liquid PCBs, such as soil or sediment. Individual samples are being 
limited in size to 25 milliliters for liquids and 5 kilograms for non-
liquids. In addition, laboratories must comply with existing conditions 
at Sec. 761.65(i) for the handling of PCB samples, and in conformity to 
the definition of commercial storer, must be approved as a commercial 
storer if they store a total of more than 500 gallons of PCBs at any 
one time (for computation of non-liquid PCB volume, 500 gallons (U.S.) 
equals approximately 1.89 cubic meters).
    By eliminating the notification provision for analytical samples, 
EPA is allowing U.S. laboratories, storers, and disposers to handle 
samples from foreign sources in the same manner that they are permitted 
to handle domestic samples. EPA believes that to impose a notification 
requirement, and the corresponding 45-day advance notice provision, 
would impose an unreasonable burden on U.S. laboratories, storers, and 
disposers which could significantly affect their ability to compete for 
foreign business. Because of the limited quantities of waste being 
imported under this provision, and the controlled environment where 
such samples will be handled, EPA finds that allowing such limited 
imports will not pose an unreasonable risk of injury to human health or 
the environment.
    PCBs at concentrations of less than 50 ppm may continue to be 
imported without regard to the quantity limits and storage and disposal 
requirements imposed by Sec. 761.93(c), since these provisions only 
apply to PCBs at concentrations of 50 ppm or greater. The import of 
PCBs for disposal at concentrations less than 50 ppm is allowed without 
restriction by Sec. 761.93(a)(1)(i).
    7. Treatability studies. A similar provision is being added at 
Sec. 761.93(d) to allow TSCA-approved disposal facilities to import, 
without prior notification, limited quantities of PCB waste for 
treatability studies. Such studies are typically performed to determine 
the suitability and effectiveness of a disposal method on a specific 
sample of PCB waste. EPA is imposing limits on the annual quantity of 
waste imported (500 gallons), the maximum concentration of PCBs in 
samples (10,000 ppm), and the annual quantity of pure PCBs present in 
the material (1 kilogram). These limits conform to those proposed by 
EPA (59 FR 62788) for self-implementing Research and Development 
studies. Larger quantities may be imported for treatability studies 
under Sec. 761.93(b). Appropriate marking, storage, disposal, 
manifesting, and recordkeeping provisions apply to PCB waste imported 
under Sec. 761.93(d). Also, as with analytical samples, PCB waste 
shipped for treatability studies may be subject to notification 
requirements under other laws or international treaties. Treatability 
study wastes are also subject to TSCA section 13 import certification 
(40 CFR 707.20). Treatability waste containing unknown concentrations 
of PCBs must be assumed to contain, and treated as if they contain, 
PCBs at concentrations of 50 ppm or greater. EPA believes that it is 
appropriate to allow such treatability sample shipments to occur 
without prior notification, because the delays involved in notification 
would place U.S. disposers at a competitive disadvantage with foreign 
competitors, and would unfairly penalize foreign waste generators 
wishing to do business with U.S. disposers vis-a-vis domestic 
generators, who are only required to manifest samples.
    8. Other imports and transboundary shipments. The general 
exceptions to the import prohibition, proposed at Sec. 761.20(b)(2) are 
being included in this final rule at Sec. 761.93(a)(1). Section 
761.93(a)(1)(i) allows for the import of PCBs and PCB Items for 
disposal at concentrations of less than 50 ppm, as was allowed prior to 
this rule by Sec. 761.20(b)(2). PCBs and PCB Items at concentrations 
less than 50 ppm are not regulated for disposal under 40 CFR part 761, 
subpart D, and are allowed to be imported and exported for disposal 
under TSCA section 6(e)(1).
    Section 761.93(a)(1)(ii) allows for the shipment of PCBs for 
disposal from United States territories and possessions outside the 
customs territory of the United States. As explained in detail in the 
preamble to the proposed rule (59 FR 62788 at 62816), these shipments 
are technically considered ``imports'' under TSCA. This import activity 
may be conducted without going through the notice process at 
Sec. 761.93(b)(1). EPA does not find a notice necessary to make a 
finding of no unreasonable risk, since the PCBs are already in the 
United States, and are, and have always been, subject to all use, 
distribution in commerce, and disposal requirements of 40 CFR part 761, 
but must be ``imported'' into the customs territory of the United 
States for ultimate disposal.
    EPA is not finalizing the proposed Sec. 761.20(b)(6) in today's 
final rule. This section proposed to codify EPA's current policy toward 
certain transboundary shipments of PCBs which are not treated as import 
or export for purposes of 40 CFR part 761. EPA will address this issue, 
along with other issues raised by the December 6, 1994, proposed rule, 
including export of PCBs at concentrations of 50 ppm or greater, in a 
separate Federal Register notice at a later date.
    EPA is adopting the proposed Sec. 761.20(c)(3)(i), now at 
Sec. 761.97(a)(1), which allows the export of PCBs for disposal at 
concentrations of less than 50 ppm. Such export had up until today's 
rule been permitted under Sec. 761.20(b)(2). Although EPA intends to 
address the general issue of export at a later date in the final PCB 
Disposal Amendments, it is necessary to finalize this one export 
provision in today's rule to preserve the status quo on exports. 
Otherwise, with the elimination of the language at old 
Sec. 761.20(b)(2), delaying promulgation of the proposed 
761.20(c)(3)(i) would make the export for disposal of PCBs at 
concentrations less than 50 ppm illegal in the interim between the 
effective date of this rule and the effective date of the final PCB 
Disposal Amendments. EPA is placing the reference to the subpart F 
export provisions in Sec. 761.20(c)(3), which addresses export for 
disposal. EPA believes this location is more appropriate than 
Sec. 761.20(b), which addresses manufacturing and importing 
prohibitions. EPA intends to include all subsequent export for disposal 
provisions under Sec. 761.97.

III. Official Rulemaking Record

    In accordance with the requirements of section 19(a)(3) of TSCA, 
EPA established the record of this rulemaking with the proposed rule. 
This

[[Page 11104]]
record includes basic information considered by the Agency in 
developing the proposal, and now includes information added since the 
publication of the proposed rule, including comments on the proposed 
rule, a transcript of the public hearing on the rule, and reply 
comments on the hearing. The following comments were received on the 
proposed PCB Exemptions Rule (Docket number OPPTS-66019) and are also 
included: all comments and information received from S.D. Myers, Inc.; 
Foley, Hoag & Eliot; and Hogan & Hartson for Chem Securities and Bovar. 
All of these materials (Docket number OPPTS-66009B) are available for 
inspection and copying in the TSCA Nonconfidential Information Center, 
Monday through Friday (excluding holidays) from 12 noon to 4 p.m., in 
Room G-102 (401 M St., SW., Washington, DC). However, any information 
claimed as CBI that is a part of the record for this rulemaking is not 
available for public review. A public version of the record, from which 
information claimed as CBI has been excluded, is available for 
inspection.
    The following Federal Register Notices are included in the docket:
    1. USEPA, 44 FR 31514, May 31, 1979, ``Polychlorinated Biphenyls 
(PCBs); Manufacturing, Processing, Distribution in Commerce, and Use 
Prohibitions: Final Rule.''
    2. USEPA, 45 FR 29115, May 1, 1980, ``Polychlorinated Biphenyls 
(PCBs); Expiration of the Open Border Policy for PCB Disposal: 
Notice.''
    3. USEPA, 54 FR 52176, December 21, 1989, ``Polychlorinated 
Biphenyls; Notification and Manifesting for PCB Waste Activities: Final 
Rule.'' OPTS-62059
    4. USEPA, 55 FR 26204, June 27, 1990, ``Polychlorinated Biphenyls; 
Notification and Manifesting for PCB Waste Activities: Correction to 
Final Rule.'' OPTS-62059
    5. USEPA, 57 FR 20602, May 13, 1992, ``Hazardous Waste Management 
System; Notification Concerning the Basel Convention's Potential 
Implications for Hazardous Waste Exports and Imports: Notice.''
    6. USEPA, 59 FR 62788, December 6, 1994, ``Disposal of 
Polychlorinated Biphenyls: Proposed Rule.'' OPPTS-66009A
    7. USEPA, 59 FR 62875, December 6, 1994, ``Polychlorinated 
Biphenyls; Manufacturing, Processing, and Distribution in Commerce; 
Proposed Decision on Exemption Petitions: Proposed Rule.'' OPPTS-66019

IV. Regulatory Impact

    In general, this PCB import rule will bring U.S. regulations 
regarding PCB shipments to the United States in closer conformance with 
the principles of the Basel Convention on the Control of Transboundary 
Movements of Hazardous Wastes and Their Disposal.
    The research of the economic impacts of this action focused on 
whether import levels will generate an economic impact of $100 million 
per year or more for U.S. companies. Contacts were made to: (1) PCB 
waste management companies, (2) the Environmental Technology Council, a 
trade association representing waste management companies, and (3) 
various government organizations in the United States, Canada, and 
Mexico.
    EPA has found that the expected regulatory impacts will be positive 
and consist predominantly of increased revenues for U.S. PCB waste 
management companies. No significant negative impacts were identified 
for any sector of the U.S. economy.
    1. Forecasts of import levels. Industry personnel surveyed by an 
EPA contractor during the development of the Economic Assessment for 
the Final PCB Import Rule indicated that the majority of PCB waste 
imports will originate in Canada, with additional wastes originating in 
Mexico. One recent estimate set the quantity of Canadian PCBs in use at 
50,000 metric tons and PCB wastes in storage (including electrical 
equipment and contaminated soils) at 140,000 metric tons (Ref. 3). 
These figures, which total over 400 million pounds of potential PCB 
waste imports, do not include light ballast wastes. Assuming that PCB 
waste disposal and management will generate revenues of $1 per pound, 
this figure represents an overall market of over $400 million. Canada 
has an operating PCB disposal facility at Swan Hills, Alberta. Canada 
also has some smaller, mobile disposal facilities available which can 
handle PCB waste. Therefore, a share of the Canadian wastes will be 
disposed of in Canada even if the U.S. border is opened to these 
wastes.
    Limited data are available on Mexico's PCB waste quantities. A 1995 
study by ERM-Mexico, ``Polychlorinated Biphenyls in Mexico'' (Ref. 1), 
indicates that Mexico has 10,000 metric tons of liquid PCB waste and 
perhaps over 10,000 PCB transformers and capacitors. Combined, these 
wastes might approach 100 million pounds. Chemical Waste Management 
operates a chemical landfill in Mexico that accepts low-concentration 
PCB wastes, but no incinerators are operating in Mexico. As a result, 
some Mexican companies are currently shipping PCB wastes to Europe for 
disposal.
    Other than Canada and Mexico, additional major sources of PCB 
wastes are uncertain. PCB disposal industry personnel have indicated to 
EPA that they do not believe that large-scale PCB shipments from Japan 
or Europe would occur, based on their opinion that transportation costs 
would be excessive and that there are likely to be more conveniently 
located disposal sites elsewhere (Ref. 10). For example, in Europe, PCB 
disposal facilities reportedly exist in Great Britain, the Netherlands, 
France, and Finland.
    2. Conclusions on import levels. While data on which to base a 
forecast are limited, it was judged that revenues from PCB imports will 
not exceed $100 million per year. The total potential import market 
from Canada and Mexico is estimated to be in the vicinity of 500 
million pounds of waste, representing a total market of $500 million. 
Only if all wastes from Canada and Mexico were imported within 5 years 
could U.S. revenues increase by over $100 million per year. As noted, 
however, a share of the Canadian waste will be disposed of in Canada. 
Further, while the rate at which importing will occur is unknown, the 
lack of regulations mandating swift disposal in the exporting countries 
suggests that imports will occur over a longer time period than 5 
years.
    Given the above observations, it was judged more likely that 
revenues from disposal of imported PCB wastes will fall in the range of 
$50 million to $100 million per year. Although revenues might increase 
further if additional PCB wastes arrive from other countries, the 
volume of such imports is not expected to be large.
    3. Forecasts of price changes for disposal of PCB wastes. EPA's 
analysis in support of this rule also examined the likelihood that 
importing of PCB wastes would increase prices for disposal services, 
thereby generating economic impacts for domestic PCB waste generators. 
The current level of capacity utilization among PCB disposal companies 
is the main factor influencing the likelihood of price increases.
    The Environmental Technology Council (ETC), Washington, DC., was 
contacted by EPA during the preparation of the Economic Assessment, and 
reports to EPA a substantial unused capacity at domestic PCB waste 
disposal facilities, based on ETC's own research. Two new facilities 
have begun operations in the last few years and another is preparing 
for commercial operations. ETC estimates

[[Page 11105]]
these facilities represent an increase in U.S. capacity for PCB waste 
incineration of nearly 50 percent in the last 3 years. EPA's survey of 
the disposal industry in support of this rule also indicates a large 
capacity surplus. The existing unused capacity appears sufficient such 
that imports could be handled without displacing domestic wastes or 
causing U.S. prices to increase significantly. No other notable 
domestic economic impacts are forecast.
    4. Other economic impacts. The final PCB import rule will have 
several positive economic impacts. PCB waste management companies 
indicated that the rule will boost their industry and create jobs in 
the United States. The final PCB rule will not materially affect 
productivity, competition, or Federal, State, or local governments.

V. References

    1. ERM-Mexico, Polychlorinated Biphenyls (PCBs) in Mexico, Report 
for the Commission for Environmental Cooperation (Draft), August 1995, 
48pp.
    2. Ross Associates, Status of PCB Management in the United States, 
Report for Commission for Environmental Cooperation, August 24, 1995.
    3. Procter Redfern, Status of PCB Management in Canada, Report for 
Commission for Environmental Cooperation (Draft Final Report), 
September 1995, 26pp.
    4. Letter from Lynn R. Goldman, M.D. to the Honorable David M. 
McIntosh, Status of Import for Disposal Petitions filed by S.D. Myers, 
Inc., September 26, 1993, 2pp.
    5. USEPA, Region 4, Public Health and Environmental Exposure 
Assessment (Draft), Unison PCB Separation Facility Henderson County, 
Kentucky, August 1986.
    6. USEPA, OAQPS, Deposition of Air Pollutants to the Great Waters, 
First Report to Congress, May 1994.
    7. USEPA, OAQPS, Identification of Sources Contributing to the 
Contamination of the Great Waters by Toxic Compounds, March 17, 1993, 
145pp.
    8. USEPA, OAQPS, Exposure and Effects of Airborne Contamination for 
the Great Waters Program Report, December 22, 1992, 201pp.
    9. USEPA, OAQPS, Relative Atmospheric Loadings of Toxic 
Contaminants and Nitrogen to the Great Waters, March 15, 1993, 142pp.
    10. USEPA, OPPT, RIA, Niskam Agarwal, Economic Assessment for the 
Final PCB Import Rule, February 23, 1996, 17 pp.
    11. USEPA, OPPT, Dr. William H. Sanders, Letter to Dr. D.Sharma, 
USDOT, December 18, 1995, 2pp.
    12. U.S. Department of Transportation, Letter from Dr. D.K. Sharma 
to William H. Sanders, USEPA, February 20, 1996, 2pp.
    13. USEPA, OPPT, Response to Comments on Proposal to Import PCBs 
for Disposal (Docket 66009B), March 1, 1996.

VI. Regulatory Assessment Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), it has 
been determined that this regulatory action is not ``significant'' and 
therefore not subject to review by the Office of Management and Budget 
(OMB).

B. Regulatory Flexibility Act

    As required by the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), the Agency has considered whether this regulatory action will 
have an adverse economic impact on small entities. An analysis of the 
potential impact on small entities is present in the regulatory 
flexibility analysis, which is included as part of the Economic 
Assessment that was prepared for this rulemaking. Based on that 
analysis, EPA has determined that this regulatory action does not 
impose any adverse economic impacts on small entities. Information 
relating to this determination has been included in the docket for this 
rulemaking.

C. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq and 
has assigned OMB control number 2070-0149 (EPA ICR No. 1770.01).-
    Receipt by the U.S. of internationally-generated PCB wastes under 
this rule will increase the volume of PCBs that is distributed in 
commerce, stored, and disposed of by the U.S. disposal industry. 
Advance knowledge of those activities through the PCB waste import 
notice will allow EPA to act on these requests in a manner that will 
ensure the national storage capacity for PCB waste is not exceeded and 
that facilities receiving such wastes are capable of handling this 
material (e.g., the facility has an EPA approval, adequate storage 
capacity, and accepts liability for the waste). Prior notice will also 
give EPA the opportunity to ensure that such imports are in compliance 
with international law and obligations of the United States.
    Data that are submitted to the Agency will be used by EPA to ensure 
an unreasonable risk of injury to health and the environment will not 
ensue from the respondents' PCB activities. The data will also be made 
available to EPA regional inspectors, or their agents, to supplement 
their compliance efforts in implementing the requirements/conditions of 
the PCB regulations. The prior notice of import requirements in this 
rule will allow the Agency to address the special liability concerns 
inherent in the transboundary shipment of PCB waste.
    The public reporting and recordkeeping burden for this collection 
of information is estimated to average 134 hours per respondent 
annually, at an annual cost of $5,468. EPA estimates that 10 
respondents will each file 12 notices annually, at an average burden of 
11 hours, $470, per response. Burden means the total time, effort, or 
financial resources expended by persons to generate, maintain, retain, 
or disclose or provide information to or for a Federal agency. This 
includes the time needed to review instructions, develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15. EPA is 
also amending the table of currently approved information collection 
request (ICR) control numbers issued by OMB for various regulations, 
which appears at 40 CFR part 9. This amendment updates the table to 
accurately display OMB approval of the information requirements 
contained in this final rule. This display of the OMB control number 
and its subsequent codification in the Code of Federal Regulations 
satisfies the requirements of the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.) and OMB's implementing regulations at 5 CFR 1320.
    The ICR was previously subject to public notice and comment prior 
to OMB approval. As a result, EPA finds that there is ``good cause'' 
under section

[[Page 11106]]
553(b)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(B)) to 
amend this table without prior notice and comment. Due to the technical 
nature of the table, further notice and comment would be unnecessary.

D. Environmental Justice

    According to Executive Order 12898 (59 FR 7629, February 16, 1994), 
each Federal Agency is required to ``analyze the environmental effects, 
including human health, economic and social effects, of Federal 
actions, including effects on minority communities and low-income 
communities. . . .'' Accordingly, EPA examined the impact of the PCB 
import rule on the distribution of PCB management activities relative 
to the socioeconomic characteristics of the surrounding communities.
    EPA finds that the PCB import rule does not directly affect the 
citing of PCB management facilities; imported PCBs will be managed at 
existing TSCA-approved facilities. Based on the PCB import rule's lack 
of influence on siting of new facilities, EPA concludes that the PCB 
import rule does not create environmental injustice.

E. Unfunded Mandates Reform Act and Executive Order 12875

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4), EPA has determined that this regulatory action does 
not contain any ``unfunded mandates,'' as described by the Act, for 
State, local, or tribal governments, or the private sector. In 
addition, EPA has determined that this action does not result in the 
expenditure of $100 million or more by any State, local, or tribal 
governments, or by anyone in the private sector. The costs associated 
with this action are described in the Executive Order 12866 section 
above.

Lists of Subjects in 40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

Lists of Subjects in 40 CFR Part 761

    Environmental protection, Hazardous substances, Labeling, 
Polychlorinated biphenyls, Reporting and recordkeeping requirements.

    Dated: March 8, 1996.
Carol M. Browner,

Administrator.
    Therefore, 40 CFR chapter I is amended as follows:

PART 9 [AMENDED]

    1. In part 9:
    a. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344, 
1345(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 
Comp. p 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 300g-1, 
300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 300j-3, 
300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 9601-
9657, 11023, 11048.

    b. Section 9.1 is amended by adding the new entries to the table to 
read as follows:


Sec. 9.1   OMB approvals under the Paperwork Reduction Act.

    *    *    *    *    *

                                                                                                                
----------------------------------------------------------------------------------------------------------------
                         40 CFR citation                                          OMB control No.               
----------------------------------------------------------------------------------------------------------------
Polychlorinated Biphenyls (PCBs) Manufacturing, Processing,                                                     
 Distribution in Commerce, and Use Prohibitions                                                                 
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                                              *    *    *    *    *                                             
761.93(a)(1)(iii)................................................                                      2070-0149
761.93(b)........................................................                                      2070-0149
                                                                                                                
                                              *    *    *    *    *                                             
----------------------------------------------------------------------------------------------------------------

PART 761 [AMENDED]

    2. In part 761:
    a. The authority citation for part 761 continues to read as 
follows:

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

    b. In Sec. 761.3 by adding alphabetically definitions for ``Basel 
Convention,'' ``Importer,'' and ``Treatability study'' to read as 
follows:
    *  *  *  *  *
    Basel Convention means the Basel Convention on the Control of 
Transboundary Movements of Hazardous Wastes and Their Disposal as 
entered into force on May 5, 1992.
    *  *  *  *  *
    Importer means any person defined as an ``importer'' at 
Sec. 720.3(l) of this chapter who imports PCBs or PCB Items and is 
under the jurisdiction of the United States.
    *  *  *  *  *
    Treatability Study means a study in which PCB waste is subjected to 
a treatment process to determine:
    (1) Whether the waste is amenable to the treatment process;
    (2) What pretreatment (if any) is required;
    (3) The optimal process conditions needed to achieve the desired 
treatment;
    (4) The efficiency of a treatment process for the specific type of 
waste (i.e., soil, sludge, liquid, etc.); or,
    (5) The characteristics and volumes of residuals from a particular 
treatment process. A ``treatability study'' is not a mechanism to 
commercially treat or dispose of PCB waste. Treatment is a form of 
disposal under this part.
    *  *  *  *  *
    c. In Sec. 761.20 by revising the first two sentences of the 
introductory text, paragraphs (b) and (c)(3) to read as follows:


Sec.  761.20   Prohibitions.

    Except as authorized in Sec. 761.30, the activities listed in 
paragraphs (a) and (d) of this section are prohibited pursuant to 
section 6(e)(2) of TSCA. The requirements set forth in paragraph (c) of 
this section and subpart F of this part concerning export and import of 
PCBs and PCB Items for disposal are established pursuant to section 
6(e)(1) of TSCA. *  *  *
    *  *  *  *  *
    (b) No person may manufacture PCBs for use within the United States 
or manufacture PCBs for export from the United States without an 
exemption, except that: an exemption is not required for PCBs 
manufactured in an excluded manufacturing process as defined in 
Sec. 761.3, provided all applicable conditions of Sec. 761.1(f) are 
met.
    *  *  *  *  *
    (c) *  *  *
    
[[Page 11107]]

    (3) PCBs and PCB Items may be exported for disposal in accordance 
with the requirements of subpart F of this part. * * * * *
    d. In Sec. 761.60 by revising paragraph (h) to read as follows:


Sec.  761.60   Disposal requirements.

    *  *  *  *  *
    (h) Requirements for export and import of PCBs and PCB Items for 
disposal are found in Subpart F of this part.
    *  *  *  *  *
    e. By adding a new Subpart F to read as follows:
Subpart F--Transboudary Shipments of PCBs for Disposal
Sec.
761.91    Applicability.
761.93    Import for Disposal.
761.97    Export for Disposal.

Subpart F--Transboundary Shipments of PCBs for Disposal


Sec.  761.91   Applicability.

    This subpart establishes requirements under section 6 of TSCA 
applicable to the transboundary shipments of PCBs and PCB Items into 
and out of the United States for disposal. Nothing in this subpart is 
intended to obviate or otherwise alter obligations applicable to 
imported or exported PCBs and PCB Items under foreign laws, 
international agreements or arrangements, other United States statutes 
and regulations, other sections of TSCA (e.g., sections 13 and 14), or 
laws of the various States of the United States. No provision of this 
section shall be construed to affect or limit the applicability of any 
requirement applicable to transporters of PCB waste under regulations 
issued by the U.S. Department of Transportation (DOT) and set forth at 
49 CFR parts 171-180.


Sec.  761.93   Import for disposal.

    (a) General provisions. (1) No person may import PCBs or PCB Items 
for disposal without an exemption, except that:
    (i) PCBs and PCB Items at concentrations less than 50 ppm may be 
imported for disposal.
    (ii) PCBs and PCB Items at concentrations of 50 ppm or greater may 
be imported from United States territories or possessions outside the 
customs territory of the United States into the customs territory of 
the United States for disposal.
    (iii) PCBs and PCB Items at concentrations of 50 ppm or greater, 
other than those described in paragraph (a)(1)(ii), may be imported for 
disposal pursuant to paragraph (b) of this section.
    (iv) PCBs and PCB Items at concentrations of 50 ppm or greater may 
be imported for analysis and disposal pursuant to paragraph (c) of this 
section.
    (v) PCBs and PCB Items at concentrations of 50 ppm or greater may 
be imported for evaluation of disposal technologies for PCB waste 
pursuant to paragraph (d) of this section.
    (2) For purposes of paragraph (a)(1) of this section, PCBs and PCB 
Items of unknown concentrations shall be treated as if they contain 50 
ppm or greater.
    (3) All imports of PCBs and PCB Items at any concentration under 
paragraph (a)(1) of this section must be in compliance with all 
international agreements or arrangements that the United States has 
entered into applicable to PCB waste imports. The United States retains 
the authority to disallow any PCB waste import not in compliance with 
these agreements or arrangements, or other international obligations of 
the United States.
    (b) PCBs and PCB Items. PCBs and PCB Items at concentrations of 50 
ppm or greater may be imported for disposal under paragraph (a)(1)(iii) 
of this section only by a person who is an approved commercial storer 
or disposer under subpart D of this part, and only if a PCB waste 
import notice is submitted to EPA pursuant to this paragraph.
    (1) PCB waste import notice. (i) PCB waste import notices under 
this paragraph must be submitted to EPA in writing. The complete PCB 
waste import notice must be received by EPA at the mailing address or 
delivery address set forth in this paragraph at least 45 days prior to 
the date on which the initial shipment enters the United States. Each 
notice shall be clearly marked ``PCB Waste Import Notice'' and shall be 
sent by certified mail to: Attn: PCB Waste Import Notice, Office of 
Enforcement and Compliance Assurance, Office of Compliance (2222A), 
U.S. Environmental Protection Agency, 401 M St., SW., Washington, DC 
20460. Alternately, notices may be delivered by courier to the same 
office at the Ariel Rios Building, room 5124, 1200 Pennsylvania Ave., 
NW., Washington, DC 20004.
    (ii) Each PCB waste import notice may cover an individual shipment 
or a series of shipments extending over a period up to 12 months 
beginning with the date on which the initial shipment enters the United 
States. A new notice must be received by EPA every 12 months if import 
for disposal will continue. A new notice must also be received by EPA 
at any time that import will deviate from the terms described in the 
prior notice, at least 45 days before the activity constituting the 
deviation begins. Such notices should indicate that the notice is a 
revision, and indicate what information has changed.
    (iii) Each PCB waste import notice shall contain the following 
information:
    (A) Company name, name of a contact person, address, telephone 
number, facsimile (FAX) number, and EPA identification number of the 
importer of PCB waste.
    (B) Company name, name of contact person, address (including 
country), telephone number, and facsimile (FAX) number of the foreign 
generator, countries of transit (if any), port of entry in the United 
States, and method of transportation.
    (C) Types of PCBs and PCB Items to be imported (e.g., transformers, 
capacitors, oil, soil), PCB concentrations of each type of PCB or PCB 
Items, number and frequency of shipments, maximum shipment size, and 
maximum total quantity to be imported during the designated import 
period.
    (D) Projected dates of shipments, and period of time intended for 
import activities addressed by the notice (not to exceed 12 months).
    (E) Name, contact name, address, telephone number, facsimile (FAX) 
number, and EPA Identification Number of each TSCA-approved commercial 
storage and disposal facility where the PCB waste will be stored and 
disposed of.
    (F) Written certification from each TSCA-approved commercial 
storage or disposal facility identified in paragraph (b)(1)(iii)(E) of 
this section, including the importer, indicating that each facility has 
agreed to accept the shipments of PCBs or PCB Items; has approval to 
store or dispose of PCB waste under subpart D of this part; has 
sufficient storage capacity available for imported PCB waste; and until 
March 18, 1999, will not exceed the 70% capacity limit imposed on 
imported PCB waste under paragraph (b)(2)(i) of this paragraph.
    (G) Written certification from the importer, stating: ``I certify 
that I am a TSCA-approved commercial storer (disposer) of PCB waste, 
and that I accept complete financial liability for the transportation, 
storage, and disposal of all PCBs and PCB Items imported into the 
United States under this notice.''
    (H) Written certification pursuant to Sec. 761.185(e), signed by 
the importer identified in paragraph (b)(1)(iii)(A) of this section, 
indicating that the information in the notice is complete and accurate.
    (iv) Some of the information required to be submitted in a PCB 
waste import notice may also be required to be

[[Page 11108]]
submitted to EPA pursuant to certain international agreements. With the 
exception of information required by paragraphs (b)(1)(iii)(F), (G), 
and (H) of this section, importers may elect to include information in 
the PCB waste import notice using the same form submitted under the 
international agreement provided the form contains the information 
required by paragraphs (b)(1)(iii)(A)-(E) of this section. Under all 
circumstances, the specific certifications required by paragraphs 
(b)(1)(iii)(F), (G), and (H) of this section must be included in each 
PCB waste import notice.
    (v) Notwithstanding the submission of a PCB waste import notice 
pursuant to this subpart, EPA reserves the right to refuse entry into 
the United States of individual shipments of PCBs or PCB Items that do 
not comply with applicable Federal laws and regulations. EPA also 
reserves the right to bring an enforcement action against an importer 
whose past import of PCBs or PCB Items does not comply with applicable 
Federal laws or regulations.
    (vi) Submission of a PCB waste import notice under paragraph 
(b)(1)(i) of this section does not replace or satisfy other import 
notice or consent requirements of applicable international agreements 
or arrangements, of the Resource Conservation and Recovery Act (RCRA), 
of other Federal statutes, or of TSCA section 13 (see 40 CFR 707.20).
    (vii) Confidential business information. (A) EPA believes that the 
information requested in PCB waste import notices generally will not be 
entitled to be treated as confidential business information (CBI) 
pursuant to section 14 of TSCA. However, a person submitting a PCB 
waste import notice may claim as CBI information the person believes to 
be entitled to confidential treatment under TSCA section 14 and part 2 
of this chapter. If no claim is made at the time the notice is 
submitted, the information in the notice shall be available to the 
public without further notice to the submitter. If CBI claims are made, 
such claims shall be made by marking the specific information in the 
notice that is claimed CBI. In addition each claim should be 
accompanied, at the time the claim is made, by a written justification 
substantiating each item of the claim pursuant to 40 CFR 2.204(e). In 
accordance with the procedures set forth in TSCA and part 2 of this 
chapter, EPA will routinely request such substantiation from the 
importer if it does not accompany the claim of confidentiality.
    (B) Any claim of confidentiality shall accompany the PCB waste 
import notice at the time it is submitted to EPA. The importer shall 
submit two copies of each PCB waste import notice if a claim of 
confidentiality is made.
    (1) One copy of the notice shall contain all information required 
in paragraph (b)(1)(iii) of this section. In this copy of the notice, 
the submitter must clearly highlight or mark the specific items claimed 
as confidential on each page, and identify each item with the label 
``TSCA Confidential Business Information.'' This notice shall be double 
wrapped, and the inside envelope marked ``PCB Waste Import Notice--CBI 
Claimed.'' The outside envelope shall be addressed to: TSCA Document 
Processing Center (7407), Office of Pollution Prevention and Toxics, 
U.S. Environmental Protection Agency, 401 M St., SW., Washington, DC 
20460. Substantiation of CBI claims should be sealed inside the inner 
envelope and submitted with this copy.
    (2) The other copy shall contain all information required in 
paragraph (b)(1)(iii) of this section, except that all information 
claimed as confidential in the first copy must be deleted. This copy 
must be sent to the address indicated in (b)(1)(i) of this section.
    (3) If the importer claims any information in the PCB waste import 
notice as CBI, the PCB waste import notice is not considered complete 
for purposes of this paragraph until both copies and the written 
substantiation are received by EPA.
    (2) Storage and disposal. Imports of PCBs and PCB Items under 
paragraph (a)(1)(iii) of this section are subject to the following 
conditions, in addition to all other applicable provisions of this 
part.
    (i) No facility that stores or disposes of imported PCB waste shall 
store at any time a combined quantity of imported PCB waste from all 
sources in excess of 70% of the facility's approved maximum PCB storage 
capacity, pursuant to Sec. 761.65(d)(4)(iii). This limit on the 
acceptance of imported PCB waste shall expire on March 18, 1999.
    (ii) All PCBs and PCB Items imported for disposal under paragraph 
(a)(1)(iii) of this section are PCB wastes subject to 40 CFR part 761, 
subpart D and:
    (A) Shall be stored and disposed of in facilities which have 
approval under subpart D of this part to store or dispose of the type 
of PCB waste being imported.
    (B) Shall be marked in accordance with subpart C of this part, and 
packaged and stored in accordance with subpart D of this part.
    (C) For purposes of compliance with the 1 year storage for disposal 
limit under Sec. 761.65(a), the date of removal from service for 
disposal for imported PCB waste shall be whichever of the following 
dates occurs first:
    (1) The date the PCB waste enters the contiguous 48 States.
    (2) The date the PCB waste enters any State, if the PCB waste will 
be disposed of in that State.
    (3) The date the PCB waste enters a State outside the contiguous 48 
States, if the PCB waste is stored in that State for a period of more 
than 10 consecutive days.
    (3) Recordkeeping and manifesting. (i) Importers, storers, and 
disposers of imported PCBs and PCB Items under paragraph (a)(1)(iii) of 
this section shall meet the requirements of subpart J of this part, 
with the following modifications:
    (A) An importer who is not the initial commercial storer or 
disposer of the imported PCB waste is considered to be the generator 
for purposes of maintaining annual records under Sec. 761.180(a); the 
annual document log maintained under Sec. 761.180(a)(2) must clearly 
distinguish between imported and domestically generated waste.
    (B) Disposers and commercial storers of PCB waste must clearly 
distinguish between imported and domestically generated waste in the 
annual document log maintained under Sec. 761.180(b)(2), and in the 
annual report submitted to EPA under Sec. 761.180(b)(3).
    (ii) Importers, storers, and disposers of PCBs and PCB Items under 
paragraph (a)(1)(iii) of this section shall meet the requirements of 
subpart K of this part, with the following modifications:
    (A) Imported PCB waste shall be manifested, even in cases where the 
importer does not relinquish control of the shipment.
    (B) Imported PCB waste shall be manifested separately from domestic 
PCB waste.
    (C) In place of the generator's name, address and EPA 
identification number on the manifest, the name and address of the 
foreign generator and the importer's name, address and EPA 
identification number shall be used.
    (D) In place of the generator's signature on the manifest 
certification statement, the importer shall sign and date the 
certification and obtain the signature of the initial transporter.
    (E) The importer shall comply with all other requirements of 
subpart K of this part which apply to the generator.
    (F) The date of removal from service for disposal shall be 
determined according to paragraph (b)(2)(ii)(C) of this section.
    (c) PCB analytical samples. PCBs and PCB Items at concentrations of 
50 ppm or greater may be imported into the

[[Page 11109]]
United States by a laboratory, commercial storer or disposer of PCB 
waste under paragraph (a)(1)(iv) of this section, without prior 
notification, for purposes of chemical analysis to determine the 
physical and chemical properties of the PCBs and PCB Items, provided:
    (1) Quantities of PCBs and PCB Items imported by an individual 
facility shall not exceed 200 kilograms annually for non-liquids, and 
25 liters annually for liquids; individual samples cannot exceed 5 
kilograms for non-liquids or 25 milliliters for liquids.
    (2) Unused and residual PCB waste remaining after analytical use is 
completed shall be marked, stored, manifested, and disposed of in 
accordance with subparts C, D, and K of this part.
    (3) PCB waste is handled by laboratories in compliance with 
Sec. 761.65(i).
    (4) A TSCA PCB commercial storage approval is required for each 
laboratory, unless a total volume of no more than 500 gallons (1.89 
cubic meters) of PCB waste is in storage at any one time.
    (d) Treatability studies. PCBs and PCB Items at concentrations of 
50 ppm or greater may be imported into the United States under 
paragraph (a)(1)(v) of this section, without prior notification, for 
purposes of evaluating the effectiveness of a disposal technology, 
provided:
    (1) The importer receiving the PCB waste is an approved disposer of 
PCB waste under 40 CFR part 761, subpart D.
    (2) The quantity of PCB waste imported annually to a disposal 
facility does not exceed a total volume of 500 gallons.
    (3) The imported PCB waste does not exceed a concentration of 
10,000 ppm PCBs, and no more than 1 kilogram total of pure PCBs is 
imported annually.
    (4) PCB waste imported under this paragraph must be marked, stored, 
and manifested in accordance with subparts C and K of this part, and 
must comply with paragraphs (b)(2)(ii) and (b)(3) of this section.
    (5) PCB waste imported under this paragraph, including residues 
from any treatability study, must be disposed of in accordance with the 
terms and conditions of the TSCA disposal approval for the facility 
performing the treatability study.


Sec.  761.97   Export for disposal.

    (a) General provisions. No person may export PCBs or PCB Items for 
disposal without an exemption, except that:
    (1) PCBs and PCB Items at concentrations less than 50 ppm may be 
exported for disposal.
    (2) [Reserved]
    (b) [Reserved]

[FR Doc. 96-6448 Filed 3-15-96; 8:45 am]
BILLING CODE 6560-50-F