[Federal Register Volume 66, Number 62 (Friday, March 30, 2001)]
[Rules and Regulations]
[Pages 17468-17478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-7920]



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Part II





Environmental Protection Agency





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40 CFR Part 761



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

  Federal Register / Vol. 66, No. 62 / Friday, March 30, 2001 / Rules 
and Regulations  

[[Page 17468]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 761

[OPPTS-66020A; FRL-6764-9]


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

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Final Rule.

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SUMMARY:  EPA is amending its rules in order to clarify that PCB waste 
in U.S. territories and possessions outside the customs territory of 
the United States may be moved to the customs territory of the United 
States for proper disposal. This rule interprets the prohibition on the 
manufacture of PCBs at Section 6(e) of the Toxic Substances Control Act 
(TSCA) to allow the movement of most PCB waste among any States of the 
United States for the purpose of disposal because such movement is not 
considered ``import'' for purposes of the definition of ``manufacture'' 
as that term is used in TSCA section 6(e)(3). This interpretation will 
allow U.S. territories and possessions which fall outside of the 
definition of ``customs territory of the United States'' to dispose of 
their PCB waste in the mainland of the United States where facilities 
are available that can properly dispose of PCB waste. Thus, this rule 
would ensure that a safe and viable mechanism exists for the protection 
of health and the environment for those citizens in areas of the United 
States where facilities are not available for the proper management and 
disposal of PCB waste. Because disposal of these wastes may occur only 
at approved facilities, no unreasonable risks to health or the 
environment on the mainland United States should be created by this 
rule.

DATES:  This rule shall become effective April 30, 2001. This rule 
shall be promulgated for purposes of judicial review at 1 p.m. eastern 
standard time on April 13, 2001 (see 40 CFR 23.5, 59 FR 7271).

FOR FURTHER INFORMATION CONTACT:  For general information contact: 
Barbara Cunningham, Acting Director, Environmental Assistance Division, 
Office of Pollution Prevention and Toxics (7408), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; 
telephone numbers: 202-554-1404; e-mail address:[email protected].
    For technical information contact: Peggy Reynolds, OPPT/NPCD, 7404, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: 202-260-3965; fax number: 202-
260-1724; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

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

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

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

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

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

[[Page 17469]]

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

 II. Background

A. What Action is the Agency Taking?

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

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

    EPA is taking this action to clarify its interpretation of the TSCA 
provisions relating to the manufacture of PCBs as an exercise of the 
Agency's inherent authority to issue regulations interpreting the 
statutes it administers. As a result, the Agency has not made a formal 
finding of ``no unreasonable risk'' for this regulation as would be 
required for a regulation that is issued under section 6(e) of TSCA. 
This regulation codifies EPA's interpretation of an undefined term, 
``import,'' in the definition of ``manufacture'' under section 3(7) of 
TSCA, for purposes of section 6(e)(3) of TSCA. EPA's definition of the 
term ``import'' for all other purposes under TSCA is not affected.

C. Why is the Agency Taking This Action?

    Under section 6(e) of the Toxic Substances Control Act (TSCA), 15 
U.S.C. 2605(e), and implementing regulations at 40 CFR part 761, the 
manufacture, processing, and distribution in commerce of PCBs are 
banned unless EPA issues a regulatory exemption to the ban. The ban on 
manufacture of PCBs was designed to prevent the creation or 
introduction to the United States of new PCBs, and it has been largely 
successful. Use of PCBs is banned except in a totally enclosed manner 
or as authorized by rule based on a finding that the use will not pose 
an unreasonable risk to human health or the environment. Disposal of 
PCBs is strictly controlled to minimize release to the environment. By 
enacting TSCA section 6(e), Congress established a presumption that 
PCBs pose an unreasonable risk of injury to health and the environment. 
See, Central and Southwest Services, et al. v. EPA, 220 F.3d 683, 688 
(5th Cir. 2000).
    Before the statutory ban was enacted in 1976, PCBs were widely used 
in industrial applications, particularly as insulating fluids in 
electrical equipment. Utilities and other industries lawfully 
manufactured, sold, and used items such as PCB electrical equipment and 
hydraulic or heat transfer equipment. After TSCA's general bans on 
manufacture, processing, distribution in commerce, and use of such 
items went into effect, EPA authorized the continued use of much of 
this equipment subject to conditions that protect against an 
unreasonable risk to health or the environment from the PCBs in the 
equipment. As these items reach the end of their useful lives, the 
owners are responsible for disposing of them following the stringent 
requirements of 40 CFR part 761. Any PCBs that are released from the 
equipment also must be disposed of following these requirements.
    PCBs and PCB waste in the territories and possessions pose an 
especially great environmental threat. The territories and possessions 
have no permitted commercial PCB disposal facilities, so PCB waste is 
accumulated in long-term storage. Many of the territories and 
possessions are subject to frequent typhoons and earthquakes, which can 
severely damage storage areas and other buildings. PCBs and PCB waste 
in storage in these areas, therefore, may present a significantly 
greater risk to human health and the environment than PCBs stored in 
the mainland United States (Ref. 8). Because most of the population of 
the territories and possessions tend to be made up of minority or low-
income communities, these risks present important environmental justice 
concerns. EPA has a strong commitment to ensuring the protection of 
these communities by mitigating their risk of exposure to PCBs to the 
greatest extent possible under the law.
    For the reasons mentioned above and as discussed more fully in the 
preamble to the proposed rule (65 FR 65656-65658), EPA proposed to 
amend its regulations to allow the movement of PCB waste for disposal 
among any States of the United States, as defined in TSCA sections 
3(13) and 3(14). This movement would be allowed regardless of whether 
the waste enters or leaves the customs territory of the United States, 
provided that the PCBs or the PCB waste were present in the United 
States on January 1, 1979, when the ban on manufacturing took effect, 
and have remained within the United States since then. EPA does not 
consider these movements to be imports subject to the ban on 
manufacturing under TSCA sections 3(7) and 6(e)(3).

 III. Summary of the Final Action

    In this action EPA is finalizing the rule as proposed.

A. What Comments Supported the Proposed Rule?

    The Agency received 13 sets of comments from individuals in the 
environmental services and other U.S. industry, the U.S. Congress, and 
the Department of Defense, as well as representatives of some of the 
U.S. territories, and an environmental group. With one exception, all 
of the comments were in favor of the proposed action for the reasons 
that were cited in the preamble to the proposed rule (65 FR 65656-
65658). In addition, many of the comments provide examples of 
situations in the U.S. territories which exist as a result of the 
previous interpretation of the statute. (The following discussions 
include a parenthetical reference to the docket number that was 
assigned by EPA to the comment.)
    Several comments cited the burden that PCB waste cleanup activities 
create for inhabitants of U.S. territories that are not located within 
the customs territory of the United States. One commenter (C1-007) 
stated that millions of dollars are spent annually by the U.S. armed 
forces to clean up and remediate formerly used military dump sites 
which existed during World War II. PCBs and other contaminants (e.g., 
mustard gas and trichloroethylene (TCE)) that were buried on Guam are 
evident in the drinking water which comes from the island's sole source 
aquifer. In addition, efforts are currently underway to clean up PCBs 
from an old military power plant located in the village of Mong Mong, 
Guam, that have migrated into the Agana Swamp and adjacent farmed 
areas, which serve as a source of catfish, fruit and vegetables

[[Page 17470]]

that have been consumed by the village for many years. In describing 
the lack of disposal options that are available to inhabitants of Guam, 
the commenter cited unfair restrictions that allowed the U.S. 
Government to transport PCBs to Guam, but limits their return to the 
U.S. mainland for proper disposal.
    In another set of comments (C1-009), the commenter related how PCB 
capacitors were sold to the U.S. military in Texas and were brought to 
the village of Tanapag in the Commonwealth of the Northern Mariana 
Islands, where the capacitors were abandoned about 40 years ago. 
Contaminated soil cleanup continues today. Efforts by the U.S. Army 
Corps of Engineers to dispose of PCBs onsite have resulted in the 
collection of contaminated soil in a single location within the village 
where the soil is exposed to rain and wind. According to the commenter, 
village residents have excess body loads of PCBs that have been 
verified by the Agency for Toxic Substances and Disease Registry 
(ATSDR), and EPA is currently conducting an evaluation of the degree of 
contamination of ground water and food sources used by the village. 
This commenter mentioned several difficulties that are associated with 
PCB contamination in U.S. territories. Specific difficulties include: a 
growing population and limited land which make it impossible to 
designate a location for hazardous waste disposal; there are no 
alternatives when the single source for water is contaminated; severe 
tropical storms, earthquakes or volcanic events, which are 
characteristic of the islands, increase the likelihood of the spread of 
PCB contamination; and subsistence economies are at risk by 
contamination and replacement sources of food may be unavailable or 
unaffordable. Although this commenter (C1-009) recognizes that the 
shipment of waste to the U.S. mainland is not without risk, he stated 
that leaving the waste in place is inconsistent with national goals of 
protecting human populations and the environment from exposure to PCBs.
    A similar concern was repeated in another set of comments (C1-003) 
which stated that natural events can easily spread PCBs throughout the 
local environments to the detriment of ecosystems on which human, 
animal and plant life depend. Another commenter (C1-013) pointed out 
that U.S. territories rely on tourism for income, and as such, it is 
important to protect their ecosystems and natural resources. Since U.S. 
territories have sensitive ecosystems, limited natural resources and no 
TSCA facilities for proper treatment and disposal of PCB wastes, the 
commenter stated these areas face increased risk of costly, long-term 
PCB environmental and human health issues in the future. Another set of 
comments (C1-006) expressed support for the rule because there are no 
viable disposal options in the territories and the rule will require 
disposal to be conducted in strict compliance with the TSCA PCB 
regulations. This commenter believes it would be more protective to 
destroy wastes than to store the waste in areas of frequent hurricanes 
and earthquakes. Along those lines, another commenter (C1-007) believes 
it is in the interest of the island of Guam to ensure PCBs brought to 
Guam from the United States are returned to the United States for 
proper disposal. Still another commenter (C1-009) applauded EPA's 
efforts to correct the illogical distinction which currently exists and 
cited the disparity in EPA's 1984 policy which allowed U.S. 
manufactured PCBs to be returned to the United States as long as that 
waste remained under the control of the U.S. Government, but that same 
waste when found in U.S. territories could not be returned to the 
mainland for disposal. In this commenter's opinion, populations and 
environments located in U.S. territories were being treated with less 
care than those populations and environments that are outside the 
United States.
    One commenter (C1-010) stated that the proposed rule properly 
recognizes that TSCA specifically defines territories or possessions of 
the United States, such as Guam, as ``States'' and reiterates that the 
term ``United States'' means all of the States (see Sec. 3(13) and 
3(14)). Another commenter (C1-001) stated the previous interpretation 
prohibited U.S. territories from shipping PCB waste to approved 
disposal sites in compliance with applicable regulations and that the 
earlier interpretation has had an adverse effect on health and 
environment. These (C1-001, C1-003, C1-006, C1-007, C1-009, C1-010, C1-
013) and other comments (C1-002, C1-008, C1-011) all support 
promulgating the rule as proposed.

B. What Comments Opposed the Proposed Rule?

    1. Legal authority. In comments submitted during the comment period 
(C1-012) and in a follow-up letter (C1-014), a commenter argued that 
the rule violates TSCA section 6(e)(3), which bans the manufacture of 
PCBs unless EPA issues a regulatory exemption to the ban (C1-012). TSCA 
section 3(7) defines the term ``manufacture'' to include ``import into 
the customs territory of the United States.'' The commenter cited the 
decision in Sierra Club v. EPA, 118 F.3d 1324 (9th Cir. 1997), which 
held that, in banning manufacture of PCBs after January 1, 1979, 
Congress had also banned all import of PCBs after that date, because 
``manufacture'' is defined to include import. The commenter viewed this 
rule as authorizing PCB waste to be imported into the customs territory 
of the United States, in violation of TSCA and the decision of the U.S. 
Court of Appeals for the Ninth Circuit.
    First, the commenter argued that EPA may not ignore the statutory 
definition of ``manufacture,'' which includes ``import into the customs 
territory of the United States.'' This rule does not attempt to avoid 
the definition of ``manufacture.'' Instead, it clarifies what EPA will 
consider to be an ``import'' of PCBs into the customs territory of the 
United States for the purposes of that definition. While TSCA defines 
the term ``manufacture,'' it does not define the term ``import.'' The 
commenter believes that the phrase ``into the customs territory of the 
United States'' defines the word ``import,'' rather than modifies it. 
EPA disagrees with this interpretation. In this rule, EPA interprets 
the movement of certain PCB waste from areas within the United States 
but outside the customs territory of the United States to disposal 
facilities inside the customs territory of the United States not to be 
an ``import'' for purposes of TSCA section 6(e). EPA believes that 
``import'' in this context applies to the initial introduction of 
particular PCBs into the United States (and the jurisdiction of TSCA), 
not the movement across the border of the customs territory of 
previously manufactured PCBs that have never left the regulatory 
jurisdiction of TSCA. For example, under TSCA, Guam is part of the 
United States, but it is outside the customs territory of the United 
States. Under this rule, it would not be an ``import'' of PCBs to 
transport PCB waste that was present in Guam on January 1, 1979, and 
has remained in Guam since that date, to an area inside the customs 
territory of the United States for disposal. Since this transport would 
not be an ``import,'' it would not be an act of ``manufacture'' which 
is banned under TSCA section 6(e)(3) and the Sierra Club decision. The 
definition of ``manufacture'' therefore is not a bar to the amendments 
in this rule.
    Second, the commenter believed EPA ignored the definition of 
``manufacture,'' which includes ``import into the customs territory of 
the United States [emphasis added]'' when it read sections 3(13) and 
3(14) of TSCA as defining the ``United States'' to encompass 
territories and possessions of

[[Page 17471]]

the United States outside the customs territory of the United States. 
EPA disagrees with this comment. Under TSCA section 3(14), the term 
``United States'' means ``all of the States.'' Under TSCA section 
3(13), ``State'' means ``any State of the United States, the District 
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
the Canal Zone, American Samoa, the Northern Mariana Islands, or any 
other territory or possession of the United States.'' Thus, the 
requirements of TSCA apply to PCBs in areas inside the customs 
territory of the United States (the 50 States, the District of 
Columbia, and Puerto Rico) as well as to areas outside the customs 
territory of the United States (the remaining territories and 
possessions). Persons who manage PCBs in areas outside the customs 
territory of the United States must manage and dispose of them in 
compliance with all of the regulations at 40 CFR part 761, yet they 
often lack adequate local storage and disposal facilities. As the 
commenter points out, in banning manufacture of PCBs, TSCA bans the 
import of PCBs into the customs territory. However, in this rule, EPA 
interprets the movement of certain PCB waste from areas within the 
United States (and therefore subject to TSCA) but outside the customs 
territory of the United States, to disposal facilities inside the 
customs territory of the United States not to be an ``import'' for 
purposes of the definition of ``manufacture'' as it applies to TSCA 
section 6(e) as long as the PCBs in the waste were present in the 
United States as the result of legal manufacture (i.e., manufacture 
prior to January 1, 1979) and have remained in the United States since 
that time. In doing so, EPA is not attempting to avoid that portion of 
the definition of ``manufacture'' that prohibits ``import into the 
customs territory of the United States.''
    Third, the commenter argues that EPA cannot support this rule by 
reference to a long-standing policy that treats transboundary movement 
of certain PCB waste controlled by the U.S. Government as neither 
import nor export. In the preamble to the proposed rule, EPA compared 
the interpretation of the term ``import'' proposed at Sec. 761.99(c) to 
its view of the terms ``import'' and ``export'' under that prior 
policy. The policy provides that PCBs purchased or procured in the 
United States by the Federal government, taken overseas for use in U.S. 
Government facilities, and that have remained under the control and 
jurisdiction of the U.S. Government, may be subsequently returned to 
the United States for disposal in an approved facility without 
violating TSCA's bans on import and export of PCBs. EPA did not refer 
to this policy as the basis for the proposed revisions to 
Sec. 761.99(c). This rule is based on EPA's interpretation of the 
undefined statutory term ``import'' for purposes of the definition of 
``manufacture'' as used in TSCA section 6(e)(3). Rather, EPA referred 
to that policy, as well as the other provisions of 40 CFR Sec. 761.99, 
to illustrate the point that not every movement of PCBs across the 
border of the customs territory constitutes an ``import'' per se for 
purposes of TSCA section 6(e)(3).
    Finally, the commenter pointed out that EPA did not propose to 
amend its regulatory definition of ``manufacture.'' That term is 
defined in 40 CFR 761.3 to mean ``to produce, manufacture, or import 
into the customs territory of the United States [emphasis added].'' The 
commenter pointed out that, under this definition, it is not unlawful 
to import PCBs from a foreign country into a territory or possession 
outside the customs territory of the United States. For example, PCB 
waste could still lawfully move from Japan to Guam. The commenter 
suggested EPA amend this definition by deleting the words ``customs 
territory of.'' This would bar import of PCBs into any territory or 
possession of the United States, and would effectuate EPA's stated goal 
that ``the prohibitions and restrictions of PCBs under TSCA section 
6(e) and its implementing regulations protect not only U.S. citizens in 
the 50 States, but U.S. citizens in all the territories and possessions 
of the United States,'' (65 FR 65656). Moreover, the commenter opined 
that this change would prevent the territories and possessions from 
becoming a conduit of PCB waste from foreign countries to disposal 
facilities on the U.S. mainland.
    This rule does not allow the territories and possessions to become 
a conduit to disposal facilities in the U.S. mainland for PCB waste 
generated in foreign countries. This rule allows PCBs that have been in 
the United States since January 1, 1979, including PCB waste in areas 
outside the customs territory of the United States, to be moved to the 
U.S. mainland for disposal. The rule does not apply to PCBs that 
arrived in the United States after that. The commenter is correct that, 
under the current definition of ``manufacture,'' it is not unlawful for 
foreign PCBs to enter territories and possessions outside the customs 
territory of the United States. However, the rule does not allow PCBs 
in the U.S. territories and possessions that entered those areas after 
January 1, 1979, to be transported to the U.S. mainland for disposal. 
The territories and possessions therefore cannot become a conduit of 
PCB waste from foreign countries to disposal facilities on the U.S. 
mainland.
    EPA has not adopted the commenter's suggestion to amend the 
regulatory definition of ``manufacture.'' First, the regulatory 
definition of ``manufacture'' at 40 CFR 761.3 mirrors the statutory 
definition in TSCA section 3(7). Because the statutory definition would 
remain intact, amending the regulatory definition would not have the 
effect the commenter anticipates. In addition, the result the commenter 
seeks by the amendment is outside the scope of the proposed rule. The 
rule as proposed would not have prevented foreign PCBs from entering 
areas of the United States that are outside the customs territory, and 
was not intended to.
    2. Risks posed by transportation of PCB waste. A commenter 
expressed concern about the risks to health and the environment of 
transporting PCB waste from the territories and possessions to the U.S. 
mainland for disposal (C1-012 and C1-014). The commenter cited U.S. 
Department of Transportation (DOT) data on highway incidents involving 
PCBs and other hazardous materials that resulted in death, injury, or 
property damage. The commenter also pointed out the risk of accidents 
during transoceanic shipments of PCB waste. The commenter suggested 
that disposal technology be transported to the waste, rather than 
transporting the waste to the disposal site. (See EPA's response to 
this comment in Unit III.B.3. below.)
    PCBs (both liquid and solid) are subject to DOT regulations that 
apply to transport of hazardous materials. The Hazardous Materials 
Regulations (HMR), 49 CFR parts 171 through 180, apply to materials, or 
groups or classes of materials, that the Secretary of Transportation 
has determined may pose an unreasonable risk to health and safety or 
property when transported in commerce in a particular amount and form. 
The HMR are issued for the safe transportation of these materials in 
interstate, intrastate, and foreign commerce by aircraft, railcars, 
vessels, and any motor vehicles. The HMR address hazard communication, 
packaging requirements, operational rules, and training. These rules 
already apply to transoceanic shipment of PCBs between areas inside the 
customs territory but not in the mainland United States and disposal 
facilities on the mainland. EPA's intent for this rule is to put 
citizens in the territories and possessions in the same regulatory 
position as citizens in Hawaii or Puerto

[[Page 17472]]

Rico with respect to disposal of PCBs. To the extent the commenter has 
concerns about the adequacy of those other rules, such concerns are 
outside the scope of this rulemaking.
    As the commenter points out, incidents involving transportation of 
PCBs and other hazardous materials do occur. Therefore, transporters of 
PCBs must be familiar with the HMR as they apply to PCBs, and are 
legally obligated to comply with those provisions as applicable. 
Compliance with the HMR is the best way to prevent transportation 
incidents to the greatest extent practicable. Additional information, 
including information on enforcement and training, is available at 
http://hazmat.dot.gov/.
    The commenter was particularly concerned about a tanker spill of 
PCBs and the effect such a spill would have in biologically rich 
coastal waters, or near areas of high human population, croplands, 
water supplies, critical wildlife habitat, ports, or fisheries. 
Although a comprehensive inventory of the PCB waste in the territories 
and possessions is not available, information developed by EPA Region 
IX did not identify any appreciable quantities of liquid PCB waste that 
would be likely to be disposed of in U.S. mainland facilities. The PCB 
waste Region IX identified is made up of approximately 10,000 cubic 
yards of soil, 13 transformers (one estimated to contain up to 310 
gallons of liquid PCBs), one 55-gallon drum of personal protective 
equipment, 800 fluorescent lamp ballasts packed in four 55-gallon 
drums, and 41 drums of sludge and soil from leaking transformers (Ref. 
8). Therefore, EPA believes it is unlikely that any territory or 
possession would ever generate enough liquid PCB waste to fill a tanker 
ship bound for the mainland United States. As noted above, transporters 
of PCBs must be familiar with the HMR as they apply to PCBs, and are 
legally obligated to comply with those provisions as applicable.
    3. Risks posed by disposal of PCB waste. The commenter also opposed 
the proposed rule on the ground that facilities that treat and dispose 
of PCBs have records of spills, environmental violations, and imposed 
penalties, and pose risks to health and the environment that are ``not 
negligible'' (C1-012 and C1-014). The commenter also noted that dioxin-
like products of incomplete combustion can form from unburned PCBs 
released during incineration. These products of incomplete combustion 
can become widely dispersed in the environment and can bioaccumulate in 
the food chain. The commenter pointed out that innovative, alternative 
technologies are available as alternatives to incineration. The 
commenter suggested that these innovative, alternative technologies be 
used to treat the waste on-site in the territories and possessions, 
rather than sending the waste to the mainland United States for 
incineration.
    PCB waste covered by this rule must be managed in accordance with 
the disposal regulations at 40 CFR part 761, which were promulgated 
under TSCA's no unreasonable risk standard. These regulations allow 
disposal of PCB waste in TSCA-approved incinerators (see Sec. 761.70). 
As part of its approval process for PCB incinerators, EPA conducts a 
technical assessment of the facility's technology and procedures to 
ensure that operation of the facility will not present an unreasonable 
risk of injury to health or the environment. EPA's technical assessment 
establishes limits on the PCB concentration of the waste the facility 
may dispose of, and on the waste feedrate per hour, based on a 
demonstration test. The operating conditions of the approval are set so 
that they do not exceed the values established in the technical 
assessment. The approval also requires the facility to meet the 
regulatory standards set out in 40 CFR part 761, subpart D as to 
destruction and removal efficiency and PCB concentration of the 
facility's waste products.
    However, thermal destruction is not the only disposal option 
available under EPA's regulations. Depending on the form of the waste 
and its PCB concentration, other disposal options include TSCA-approved 
landfills (see Sec. 761.75), decontamination (Sec. 761.79), and 
disposal in certain landfills permitted in accordance with the Resource 
Conservation and Recovery Act (RCRA) (see Sec. 761.61(a) and 
Sec. 761.62(a) and (b)). In addition, the PCB regulations allow EPA 
Regional Administrators to grant risk-based approvals for alternative 
disposal and decontamination methods under Sec. 761.60(e), 
Sec. 761.61(c), Sec. 761.62(c), and Sec. 761.79(h). In 1994, the last 
year for which data have been compiled, 842,584,000 kilograms of PCB 
waste were disposed of in the United States using all technologies 
available at that time (Ref. 22).
    EPA supports the commenter's suggestion that generators and 
disposers of PCB waste now located in the territories and possessions 
examine innovative, alternative disposal technologies. Some of these 
technologies are commercially available and may offer further risk 
reductions over mainland disposal in an incinerator or TSCA landfill. 
EPA recently released a report reviewing several of these alternative 
technologies, ``Potential Applicability of Assembled Chemical Weapons 
Assessment Technologies to RCRA Waste Streams and Contaminated Media,'' 
August 2000. This report is available from EPA's web site at 
www.epa.gov/tio or at www.clu-in.org., or from EPA's National Service 
Center for Environmental Publications, (800) 490-9198. Information 
about these innovative, alternative technologies, including mobile 
technologies that can be taken to the locations where PCB wastes are 
stored, is also available to local government officials and members of 
the public through Regional PCB Coordinators. Anyone intending to 
dispose of PCBs using an alternative technology must confirm that it is 
consistent with EPA's regulations, and that a TSCA PCB disposal 
approval has been issued that is specific to the waste and technology 
that will be used.
    EPA acknowledges that, because PCBs are toxic, there are risks 
associated with managing them that cannot be completely prevented. 
Accidents can occur during storage and disposal, as can lapses in 
compliance. This is true of conventional disposal technologies as well 
as of innovative, alternative technologies. EPA's PCB regulations and 
facility-specific approvals provide regulatory and enforcement 
structures for reducing the risks inherent in managing and disposing of 
PCBs. Moreover, it is long-standing EPA policy that the benefits of 
permanently removing PCBs from the environment through proper disposal 
outweigh the risks of the disposal processes themselves (see EPA's 
Import for Disposal Rule, 61 FR 11096, 11098 (March 18, 1996) (FRL-
5354-8)). These benefits may be greater with regard to the territories 
and possessions, where facilities for proper management and disposal 
are more limited than on the U.S. mainland, and the risks of release to 
the environment are greater. As noted above, EPA's intent for this rule 
is to put citizens in the territories and possessions in the same 
regulatory position as citizens in Hawaii or Puerto Rico with respect 
to disposal of PCBs. To the extent the commenter has concerns about the 
adequacy of the PCB disposal regulations, such concerns are outside the 
scope of this rulemaking.
    4. Environmental justice concerns. A commenter questioned EPA's 
conclusion in the preamble to the proposal that this rule presents no 
environmental justice concerns, and that it will reduce risks to health 
and the environment from PCBs (C1-012 and C1-014). The commenter 
believed

[[Page 17473]]

EPA had disregarded the environmental risks that low-income and 
minority communities in the territories may face due to transportation 
of PCB wastes. The commenter also believed EPA's conclusion ignored 
increased exposure to PCBs and attendant health risks that will be 
borne by low-income and minority communities surrounding the treatment 
and disposal facilities in the United States where the wastes will be 
sent.
    Pursuant to Executive Order 12898, entitled Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Communities (59 FR 7629, February 16, 1994), the Agency has considered 
environmental justice related issues with regard to the potential 
impacts of this action on the environmental and health conditions in 
low-income and minority communities. EPA finds that the amendments in 
this final rule will reduce the risk to human health and the 
environment from exposure to PCBs in low-income and minority 
communities in the U.S. territories and possessions located outside of 
the customs territory of the United States because it will allow PCB 
waste found there to be disposed of in EPA-approved facilities on the 
mainland of the United States.
    Executive Order 12898 directs Federal agencies to identify and 
address ``disproportionately high and adverse human health or 
environmental effects of its programs, policies, and activities on 
minority populations and low-income populations in the United States 
and its territories and possessions. . .'' EPA's judgment at the time 
of the proposed rule was that the rule would benefit low-income and 
minority populations in the territories and possessions because it 
would allow PCB waste to be removed from those areas for permanent 
disposal. Comments from the territories and possessions support that 
judgment.
    The Resident Representative to the United States from the 
Commonwealth of the Northern Mariana Islands supported the proposed 
rule (C1-009). The commenter noted the risks to residents of the 
village of Tanapag from soil contaminated by abandoned PCB capacitors. 
As discussed in Unit III.A., members of the village community have been 
verified by the ATSDR to have excess body loads of PCBs. EPA is 
currently evaluating the degree of contamination of ground water and 
food sources used by the village. An attempted remediation of the 
contaminated soil using thermal desorption has not been completed, and 
contaminated soils are stockpiled within the village, exposed to sun 
and rain. The commenter also noted the difficulty of managing hazardous 
waste on a small tropical island with limited land resources, a single 
source of drinking water, and frequent tropical storms, earthquakes, 
and volcanos. The commenter further observed that economic factors for 
the islands are problematic. The island may be exposed to a variety of 
toxic wastes due to global commerce, requiring a multitude of disposal 
technologies, but for a small quantity of each type of waste. Thus, 
economies of scale in establishing and operating disposal facilities 
are lacking. Furthermore, the subsistence economies on which some 
island people rely are put at risk by contamination, and replacement 
sources of food may be unavailable or unaffordable. The commenter 
concluded, ``Shipment of PCB wastes from the U.S. territories to the 
U.S. customs territory is not without risk; but the alternative of 
leaving the wastes where they are has proven to have results 
inconsistent with the goals of our national policy of protecting the 
environment and human populations from exposure to PCBs.'' EPA has 
issued an Order under RCRA to the Army Corps of Engineers to clean up 
the Tanapag Village contamination.
    The Chairperson of the Committee on Natural Resources of the Senate 
of Guam also wrote in favor of the proposed rule (C1-007). The senator 
pointed out that Guam is a small island, prone to natural disasters 
such as typhoons and earthquakes. The senator also noted that the 
island's growing population and limited land area will make it 
difficult if not impossible to designate any part of the island for 
hazardous waste disposal. The population of Guam is becoming more 
concerned about the health and environmental effects PCBs may have on 
the people and the island. A current case on Guam involves PCBs that 
leaked into the largest wetland on Guam from a Navy power plant. The 
Navy is currently assessing the effect PCBs may have on the aquatic 
life in the wetland, such as catfish, and the fruits and vegetables 
that have been farmed in the area and consumed by island residents for 
many years. A number of residents in the local village are concerned 
that adverse health effects such as cancer may have occurred because of 
living next to the power plant or consuming food that was produced in 
the area. The senator concluded:
    To insure the health and welfare of our island residents, it is 
in the interest of the island to insure that toxins such as PCBs 
that have been brought into Guam from U.S. destinations be returned 
for proper disposal. The U.S. territories, such as Guam, should not 
be unfairly burdened by restrictions that allowed for the 
transportation of such a toxin from the United States to Guam, but 
limits the return to the U.S. mainland from Guam for proper 
disposal. Our islands and our limited land resources and extenuating 
environmental conditions should be given fair consideration in 
addressing USEPA's proposed rule for proper disposal facilities in 
the U.S. mainland.
    The Administrator of the Guam Environmental Protection Agency 
commented that PCBs from several cleanups are in indefinite storage on 
Guam (C1-008). These storage areas are subject to damage by frequent 
typhoons and earthquakes. PCBs that are released can present an 
exposure risk to Guam residents through consumption of contaminated 
fish, which is a subsistence food for Guam residents. Even a small 
amount seeping into the groundwater could eliminate Guam's sole aquifer 
as a source of drinking water. The commenter stated that the proposed 
rule would remove a tremendous burden on Guam and ensure that a safe 
and viable mechanism existed for the protection of health and the 
environment for residents on Guam where disposal facilities are not 
available.
    A Member of Congress from Guam supported the proposed rule, 
commenting that it would help to eliminate the threat to the health and 
welfare of Guam and other U.S. territories communities from PCB waste 
(C1-002). A Member of Congress from American Samoa commented that the 
proposed rule was a common sense solution to the problem of storage of 
PCBs in the territories, noting that hurricanes, typhoons, and 
earthquakes in the territories can spread PCBs throughout the local 
environments on which humans, animals, and plant life depend (C1-003).
    Finally, a long-term resident of Guam who is also an environmental 
professional engaged in environmental consulting services on Guam and 
in the Commonwealth of the Northern Mariana Islands supported the 
proposed rule and commented that EPA's prior policy of prohibiting PCBs 
in the territories and possessions from being shipped to an EPA-
approved disposal site was not protective of health and the environment 
(C1-001).
    EPA believes that the interpretation in this final rule will result 
in reduced risk to health and the environment from exposure to PCBs in 
low-income and minority communities in the U.S. territories and 
possessions. This rule will allow most PCB waste found in those 
territories and possessions to be disposed of in EPA-approved 
facilities on the mainland of the United States.

[[Page 17474]]

 While the rule could result in some short-term risk from 
transportation of the waste, EPA believes that that risk is outweighed 
by the elimination of the health and environmental concerns in the U.S. 
territories and possessions over the long term that would be posed by 
continued storage of the waste.
    The commenter also asserted that the rule would adversely affect 
low-income and minority populations who live near the disposal 
facilities in the United States where the waste would be disposed of by 
incineration (C1-012). As part of its approval process for PCB 
incinerators, EPA conducts a technical assessment of the facility's 
technology and procedures to ensure that operation of the facility will 
not present an unreasonable risk of injury to health or the 
environment. EPA's technical assessment establishes limits on the PCB 
concentration of the waste the facility may dispose of, and on the 
waste feedrate per hour, based on a demonstration test. The operating 
conditions of the approval are set so that they do not exceed the 
values established in the technical assessment. The approval also 
requires the facility to meet the regulatory standards set out in 40 
CFR part 761, subpart D as to destruction and removal efficiency and 
PCB concentration of the facility's waste products. EPA conducts a 
similar analysis when permitting other types of PCB disposal 
facilities, as well, and determines that activities at the facility 
will not pose an unreasonable risk of injury to health or the 
environment. Additionally, the approval process for PCB disposal 
facilities is subject to E.O. 12898. Therefore, EPA is also required to 
consider the potential impacts of that action on the environmental and 
health conditions in low-income and minority communities whenever a 
permit is approved.
    Therefore, as long as PCB waste from the U.S. territories and 
possessions is disposed of in accordance with a facility's approval, 
disposal of the waste will not produce risks greater than those 
calculated at the time the PCB disposal approval was issued, which EPA 
determined will not pose an unreasonable risk to the surrounding 
community. Disposal facilities permitted under TSCA must renew their 
permits periodically. The permit renewal process is open to public 
participation. Issues on siting of facilities, including environmental 
justice issues, can be raised as part of that process, and will be 
considered by EPA. As noted above, EPA's intent for this rule is to put 
citizens in the territories and possessions in the same regulatory 
position as citizens in Hawaii or Puerto Rico with respect to disposal 
of PCBs. To the extent the commenter has concerns about the adequacy of 
EPA's approval of specific PCB disposal facilities under TSCA, such 
concerns are outside the scope of this rulemaking, and can be addressed 
in the renewal process for those facilitlies' permits.
    5. Non-cancer health effects of PCBs. A commenter questioned the 
basis for the statement in the preamble to the proposed rule that 
``PCBs cause significant ecological and human health effects, including 
cancer, neurotoxicity, reproductive and developmental toxicity, immune 
system suppression, liver damage, skin irritation, and endocrine 
disruption'' (C1-011) (see 65 FR 65655, November 1, 2000)(FRL-6750-6). 
The commenter noted that the only reference for the statement was a 
report by EPA's Office of Research and Development, ``PCB Cancer Dose-
Response Assessment and Application to Environmental Mixtures'' (Ref. 
1). The commenter pointed out that that report addressed the 
carcinogenicity of PCBs, not their non-cancer or ecological effects, 
and that EPA's Office of Research and Development is in the process of 
reassessing the non-cancer effects of PCBs. The commenter referred to a 
literature review it has conducted on non-cancer effects of PCBs, which 
was submitted for the Agency's consideration as part of EPA's 
reassessment of the effects of dioxin and related compounds (including 
co-planar PCBs) (see 65 FR 59186, October 4, 2000) (FRL-6880-9). The 
literature review concludes that, except for certain oculodermal 
effects, PCBs do not contribute to adverse health effects in humans.
    EPA appreciates the commenter's contribution to the ongoing efforts 
elsewhere in the Agency to assess the health effects of PCBs. However, 
the preamble statement the commenter questions was included for 
background only, as this rule is not based on an assessment of the 
risks of PCBs. This rule clarifies EPA's interpretation of the TSCA 
provisions relating to the manufacture of PCBs as an exercise of the 
Agency's inherent authority to issue regulations interpreting the 
statutes it administers. As a result, the Agency has not made a formal 
finding of ``no unreasonable risk'' for this regulation as would be 
required for a regulation that is issued under section 6(e) of TSCA. 
This regulation codifies EPA's interpretation of an undefined term, 
``import,'' in the definition of ``manufacture'' under section 3(7) of 
TSCA, for purposes of section 6(e)(3) of TSCA. All PCB wastes affected 
by this rule are subject to the current regulations at 40 CFR part 761, 
which were promulgated based on the standard of no unreasonable risk.

C. What Other Comments Were Received on the Proposed Rule?

    The Agency also received comments that raised additional issues.
    1. Broaden the scope of the rule. EPA received a request (C1-004) 
to broaden the scope of the proposed rule to include both domestic- and 
foreign-manufactured PCBs that have remained under the control of the 
U.S. Government. The Agency was also asked to consider submitted 
comments (C1-005) as a petition for an exemption from the TSCA 
prohibitions to allow the import for disposal of U.S.-manufactured PCBs 
that are located within the Western Hemisphere. (An exemption petition 
requires Agency action in the form of a separate rulemaking.) EPA 
cannot act favorably on either of these requests since they clearly 
fall outside of the scope of the proposed rule.
    The proposal was issued as an interpretive rule rather than a TSCA 
section 6(e) action; therefore, a formal finding of ``no unreasonable 
risk'' is not necessary. The legal basis for the proposed interpretive 
rule was that PCBs which were legally present anywhere in the United 
States when the ban took effect in 1979 should not be considered 
``imported'' when they are moved to another place in the United States, 
regardless of whether the PCBs leave or enter the customs territory of 
the United States. EPA believes that ``import'' in this context applies 
to the initial introduction of particular PCBs into the United States 
(and the jurisdiction of TSCA), not to the movement across the border 
of the customs territory of previously manufactured PCBs that have 
never left the regulatory jurisdiction of TSCA. Therefore, foreign-
manufactured PCBs and U.S.-manufactured PCBs that have been exported do 
not fit within the narrowly crafted interpretation of the proposed 
rule. An exemption remains a viable alternative for seeking Agency 
approval to import for disposal either foreign-made PCBs or domestic-
made PCBs that have been exported from the United States. The 
appropriate means of obtaining a response from the Agency on those 
requests is to submit an exemption petition pursuant to section 6(e)(3) 
of TSCA, following the procedures at 40 CFR 750.10. Exemptions may be 
granted for a period not to exceed 1 year, but only after the 
petitioner has demonstrated that the two statutory requirements have 
been met (i.e., there will be no unreasonable risk

[[Page 17475]]

of injury associated with the requested activity, and that good-faith 
efforts have been made to find a substitute for the PCBs). Neither set 
of comments provided the level of detailed information that is 
necessary for the Administrator to act on a request for an exemption 
from the TSCA prohibitions.
    2. Treatment of post-January 1, 1979 wastes. EPA also received two 
inquiries regarding the applicability of the interpretive rule to post-
1979 PCB wastes. One set of comments (C1-008) raised a concern that the 
proposed rule would not allow PCB wastes which arrived in U.S. 
territories after January 1, 1979, to be disposed of on the U.S. 
mainland. Another commenter (C1-011) expressed a similar opinion and 
indicated there may be difficulty in demonstrating that PCBs were 
present in a U.S. territory or possession prior to January 1, 1979. The 
suggested solution was to allow importation for disposal of PCBs 
present in a territory or possession on the ``effective date of the 
proposed rule.''
    These commenters apparently misunderstood the proposed rule. As 
discussed in the preamble to the proposed rule, in order to qualify for 
this regulation, the PCBs in the waste in question must have been 
present in the United States prior to 1979, not present in the 
territory or possession where they are now prior to that date (65 FR 
65657). So long as the PCBs were lawfully manufactured in or imported 
into the United States prior to 1979, and never left the United States, 
the date on which they entered the territory or possession in question 
is irrelevant.
    Wastes that are covered by this rule may be sent to the U.S. 
mainland for disposal in accordance with the PCB disposal regulations. 
Any other PCB waste may not be imported to the U.S. mainland for 
disposal, unless an exemption under section 6(e)(3) of TSCA has been 
obtained. Similarly, foreign PCB waste in a U.S. territory or 
possession may be exported to another country for disposal only when 
the TSCA exemption requirements, and all requirements of any relevant 
international agreement, have been satisfied.
    With respect to changing the date on which PCBs must have been in 
the United States in order to qualify for this regulation, EPA does not 
agree that using the date of the proposed rule would be appropriate. 
Part of the basis for this interpretive rule is that PCBs that are 
present in the United States when the ban on manufacturing went into 
effect and have remained in the United States since then should be 
managed in the same manner regardless of whether they are now present 
in a territory or possession, rather than within the customs territory 
of the United States. Therefore, using a threshold date other than 
January 1, 1979, would not be supported by the rationale for the 
proposed rule.

D. What Does this Final Rule Do?

    As noted above, the territories and possessions are subject to all 
of TSCA's requirements. EPA is charged with implementing section 6(e) 
to protect the health and environment of all U.S. citizens, including 
the residents of the territories and possessions. To interpret the 
statute as prohibiting the movement of PCB waste from the territories 
and possessions to disposal facilities in the U.S. mainland puts the 
residents of the territories and possessions at a serious disadvantage 
compared to residents of areas that fall within the definition of the 
customs territory. Because there are no EPA-approved commercial PCB 
storage or disposal facilities outside the customs territory, and 
because of the unique environmental conditions in the territories and 
possessions, the U.S. citizens of these areas are subject to a higher 
likelihood of exposure to PCBs, and thus potential for a higher risk of 
injury.
    EPA has determined that its previous interpretation of the 
definition of ``manufacture'' is not mandated by the language of TSCA, 
results in inequitable treatment among different areas within the 
United States, does not adequately protect health and the environment 
throughout the United States, and therefore is not in the public 
interest. EPA believes that use of the term ``import '' in the 
definition of ``manufacture'' was not intended to include the movement 
of PCB waste that has never been outside the United States or outside 
the regulatory control of TSCA (after enactment) from one area of the 
United States (the territories and possessions) to another area of the 
United States (the mainland) for disposal. There is an obvious 
distinction between that type of movement and the introduction of a 
chemical substance into the customs territory of the United States from 
a foreign country. This latter category results in the introduction of 
a substance in the United States that was not there before, and is much 
more analogous to the manufacture of a new chemical substance in the 
United States. Therefore, EPA is interpreting the movement of certain 
PCB waste from the territories and possessions into the customs 
territory of the United States for disposal not to be a ``manufacture'' 
subject to the ban set forth in TSCA section 6(e).
    This interpretive rule allows the movement of PCB waste for 
disposal among any States of the United States, as defined in TSCA 
sections 3(13) and 3(14), regardless of whether the waste enters or 
leaves the customs territory of the United States, provided that the 
PCBs in the waste were present in the United States on January 1, 1979, 
when the ban on manufacturing took effect, and has remained within the 
United States since that time. This rule will allow PCB waste that was 
present in the territories and possessions at the time TSCA's ban on 
manufacturing took effect, and that remained within the territories and 
possessions since that date, to be stored and disposed of in any 
facility in the United States that meets the requirements of 40 CFR 
part 761, subpart D. It also allows PCBs that were present in the 
territories and possessions at the time TSCA's bans took effect, but 
were not designated as waste until after that date, to be stored and 
disposed of in any subpart D facility in the United States, as long as 
the PCBs and PCB waste had remained in the United States. Finally, this 
interpretive rule allows PCBs or PCB wastes that were transferred from 
an area in the United States that is outside the territories and 
possessions, but that was moved to a territory or possession after 
January 1, 1979, and that has never left the United States, to be 
stored and disposed of in any subpart D facility in the United States. 
EPA does not consider movement of any of these wastes to the customs 
territory of the United States to be ``manufacture'' as that term is 
defined in TSCA and therefore does not consider it subject to the ban 
on manufacturing under TSCA section 6(e).
    This final rule applies to PCB waste in the territories and 
possessions provided that the PCBs in the waste are there as the result 
of conduct that was legal at the time it occurred (for example, PCB 
materials that were brought to the territories before TSCA's ban on 
distribution in commerce became effective), and have been subject to 
regulation under TSCA since that time. This would include PCB equipment 
that was lawfully in use in one of the States, that was transferred to 
a territory or possession for continued lawful use, and that reached 
the end of its useful life and became subject to disposal while in the 
territory or possession.
    This final rule does not allow disposal in the United States of 
PCBs transported to the territories and possessions from foreign 
countries after the effective date of the ban on manufacture in TSCA 
section 6(e)(3). The purpose of this rule

[[Page 17476]]

is to ensure that all U.S. PCB waste can be disposed of in compliance 
with the requirements of TSCA section 6(e) and its implementing 
regulations. This final rule does not allow the territories and 
possessions to become a conduit to the United States for PCB waste 
generated in other countries.
    Finally, EPA has not made a formal finding of ``no unreasonable 
risk'' for this regulation. This regulation is not being promulgated 
under TSCA section 6(e), but rather as an exercise of EPA's inherent 
authority to interpret the statutes it administers.

 VIII. References and Documents in the Record

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

A. Federal Register Notices

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

 B. Reference Documents

    1. USEPA, Office of Research and Development (ORD). PCBs Cancer 
Dose-Response Assessment and Application to Environmental Mixtures. 
EPA600P-96001F (September 1996): 75pp. OPPTS-66009C.
    2. USEPA, Office of Air Quality Planning and Standards (OAQPS). 
Deposition of Air Pollutants to the Great Waters, First Report to 
Congress. EPA-453R-93-055 (May 1994): 136pp. OPPTS-66009B.
    3. USEPA, OAQPS. Identification of Sources Contributing to the 
Contamination of the Great Waters by Toxic Compounds. EPA-453R-94-
087 (March 17, 1993): 145pp. OPPTS-66009B.
    4. USEPA, OAQPS. Relative Atmospheric Loadings of Toxic 
Contaminants and Nitrogen to the Great Waters. EPA-453R-94-086 
(March 15, 1993): 142pp. OPPTS-66009B.
    5. USEPA. Chapter 2.2, Exposure and Effects of Airborne 
Contamination for the Great Waters Program Report. EPA-453R-94-085 
(December 22, 1992): 201pp. OPPTS-66009B.
    6. USEPA, Office of Prevention, Pesticides, and Toxic Substances 
(OPPTS). Commercially Permitted PCB Disposal Companies (April 2000): 
3pp.
    7. USEPA, Office of Pollution Prevention and Toxics (OPPT). 
Excerpt from the PCB Waste Handler Database; Facility Information 
for U.S. Territories and Possessions (September 27, 2000): 12pp.
    8. USEPA, Region IX. Memo from Lily Lee, Guam Program Manager, 
to Enrique Manzanilla, Director, Cross Media Division, Re: Summary 
of PCB Waste Quantities and Concentrations in the U.S. Territories 
(July 19, 2000): 5pp.
    9. Unitek Environmental-Guam. Letter from LeRoy Moore, 
President, to John Malone [sic], Director, National Program 
Chemicals Division, Re: PCB Shipments from Guam and Possessions of 
the United States for Disposal in the Mainland United States (May 
11, 2000): 2pp.
    10. USEPA, OPPT. Note from Peter Gimlin to the File, Re: Unitek 
Environmental-Guam (UEG) Meeting (September 27, 2000): 1p.
    11. U.S. Congress. Letter from Robert A. Underwood, House of 
Representatives, to Carol M. Browner, Administrator, EPA, Re: 
Disposal of Polychlorinated Biphenyls (PCBs) from Guam and the Other 
U.S. Territories (April 12, 2000): 2pp.
    12. USEPA, Region IX. Letter from Felicia Marcus, Regional 
Administrator, to Robert A. Underwood, U.S. House of 
Representatives, Re: Disposal of Polychlorinated Biphenyl Waste 
(February 4, 2000): 2pp.
    13. USEPA, OPPT. Memo from John W. Melone, Director, Chemical 
Management Division, to George Abel, Chief, Pesticides and Toxic 
Substances Branch, USEPA Region X, Re: Transit of PCB Waste 
Generated in the United States Through a Foreign Country (January 
19, 1995): 2pp.
    14. USEPA, OPPT. Letter from John W. Melone, Director, Chemical 
Management Division, to Arthur J. Brown, National Science 
Foundation, Re: Request to Return PCBs in Antarctica to the United 
States for Disposal (March 11, 1994): 3pp.
    15. USEPA, OCM and OE. Letter from Michael F. Wood, Director, 
Compliance Division, and Michael J. Walker, Enforcement Counsel for 
the Toxics Litigation Division, to Marion P. Herrington, General 
Electric Company, Re: Transfer of PCB Waste Generated in A U.S. 
Territory to An Approved Disposal Facility in the Continental United 
States (August 14, 1992): 2pp.
    16. USEPA, Office of Toxic Substances (OTS). Letter from Don R. 
Clay, Director to Colonel Joseph T. Cuccaro, Defense Logistics 
Agency, Re: USEPA Position on DOD Owned PCB Fluid Located Abroad and 
Returned to the U.S. for Disposal (February 7, 1984): 3pp.
    17. United Nations Environment Programme (UNEP). Inventory of 
World-wide PCB Destruction Capacity, First Issue (December 1998): 
85pp.
    18. U.S. Congress. Congressional Record from the House of 
Representatives, H8598, Guam's Environmental Problems (October 2, 
2000): 1p.
    19. U.S. Congress. Letter from Robert A. Underwood, House of 
Representatives, to Carol Browner, Administrator, EPA, Re: Inability 
of Guam to Import PCBs into the U.S. Mainland for Proper Disposal 
(December 10, 1999): 2 pp.
    20. USEPA, OPPTS. Letter from Susan H. Wayland, Acting Assistant 
Administrator, to Robert A. Underwood, U.S. House of 
Representatives, Re: Disposal of PCB Waste in Guam (June 14, 2000): 
2 pp.
    21. USEPA, OPPTS. Letter from Susan H. Wayland, Acting Assistant 
Administrator, to Robert A. Underwood, U.S. House of 
Representatives, Re: Meeting on PCB Waste in Guam (September 29, 
2000): 2 pp.
    22. USEPA, OPPT. PCB Disposal and Storage Statistics, 1990-1994 
(May 10, 1996): 11 pp.

 IX. Regulatory Assessment Requirements

A. Executive Order 12866

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

B. Regulatory Flexibility Act (RFA)

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

[[Page 17477]]

States. This rule provides a mechanism for the disposal of PCB waste 
resulting from natural disasters (e.g., tropical storms, cyclones, 
typhoons and hurricanes), former use of U.S. territories and 
possessions for defense purposes, spills of PCBs and the expiration of 
PCB equipment that has reached the end of its natural life span.

C. Paperwork Reduction Act (PRA)

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

D. Unfunded Mandates Reform Act (UMRA)

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

 E. Executive Order 13132

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

F. Executive Order 13084 and 13175

    Under Executive Order 13084, entitled Consultation and Coordination 
with Indian Tribal Governments (63 FR 27655, May 19, 1998), EPA may not 
issue a regulation that is not required by statute, that significantly 
or uniquely affects the communities of Indian tribal governments, and 
that imposes substantial direct compliance costs on those communities 
unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by the tribal governments, or EPA 
consults with those governments.
    If EPA complies by consulting, Executive Order 13084 requires EPA 
to provide to the Office of Management and Budget, in a separately 
identified section of the preamble to the rule, a description of the 
extent of EPA's prior consultation with representatives of affected 
tribal governments, a summary of the nature of their concerns, and a 
statement supporting the need to issue the regulation. In addition, 
Executive Order 13084 requires EPA to develop an effective process 
permitting elected officials and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.''
    This rule does not significantly or uniquely affect the communities 
of Indian tribal governments, nor does it impose substantial direct 
compliance costs on such communities. It interprets the TSCA 
prohibition on the manufacture of PCBs in a manner which allows PCB 
waste in U.S. territories and possessions located outside of the 
customs territory of the United States to be disposed of in EPA-
approved facilities on the mainland of the United States. Accordingly, 
the requirements of section 3(b) of Executive Order 13084 do not apply 
to this rule.
    On November 6, 2000, the President issued Executive Order 13175, 
entitled Consultation and Coordination with Indian Tribal Governments 
(65 FR 67249). Executive Order 13175 took effect on January 6, 2001, 
and revokes Executive Order 13084 as of that date. EPA developed this 
rule, however, during the period when Executive Order 13084 was in 
effect; thus, EPA addressed tribal considerations under Executive Order 
13084.

G. Executive Order 12898

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

H. Executive Order 13045

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

 I. National Technology Transfer and Advancement Act (NTTAA)

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

 J. Executive Order 12630

    EPA has complied with Executive Order 12630, entitled Governmental 
Actions and Interference with

[[Page 17478]]

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

 K. Executive Order 12778

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

X. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the Agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and the Comptroller General of the United 
States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 761

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

    Dated: March 20, 2001.
Christine T. Whitman,
Administrator.

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

PART 761--[AMENDED]

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

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

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


Sec. 761.99  Other transboundary shipments.

* * * * *
    (c) PCB waste transported from any State to any other State for 
disposal, regardless of whether the waste enters or leaves the customs 
territory of the United States, provided that the PCB waste or the PCBs 
from which the waste was derived were present in the United States on 
January 1, 1979, and have remained within the United States since that 
date.
[FR Doc. 01-7920 Filed 3-29-01; 8:45 a.m.]
BILLING CODE 6560-50-S