[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]]
_______________________________________________________________________
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
[[Page 11099]]
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