[Federal Register Volume 67, Number 180 (Tuesday, September 17, 2002)]
[Proposed Rules]
[Pages 58567-58578]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-23718]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 761

[OPPT-2002-0013; FRL-7176-1]
RIN 2070-AB20


Polychlorinated Biphenyls; Manufacturing (Import) Exemptions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: With certain exceptions, section 6(e)(3) of the Toxic 
Substances Control Act (TSCA) bans the manufacture (including import), 
processing, and distribution in commerce of polychlorinated biphenyls 
(PCBs). One of these exceptions is TSCA section 6(e)(3)(B), which gives 
EPA authority to grant petitions to perform these activities for a 
period of up to 12 months, provided EPA can make certain findings by 
rule. In January and April 2001, the United States Defense Logistics 
Agency (DLA), a component of the Department of Defense (DoD), submitted 
two petitions to EPA to import foreign-manufactured PCBs that DoD 
currently owns in Japan and Wake Island for disposal in the United 
States. In this document, EPA is proposing to grant both of DLA's 
petitions and is soliciting public comment on this decision; if 
finalized, this decision to grant would allow DLA to engage in the 
import of these PCBs for disposal.

DATES: Comments, identified by the docket ID number OPPT-2002-0013, 
must be received by EPA on or before October 17, 2002.
    If requested by October 11, 2002, an informal hearing will be held 
in Washington, DC on a date to be announced later in the Federal 
Register.

ADDRESSES: Comments and hearing requests may be submitted by mail, 
electronically, or in person. Please follow the detailed instructions 
for each method as provided in Unit I. of the SUPPLEMENTARY 
INFORMATION. To ensure proper receipt by EPA, it is imperative that you 
identify docket ID number OPPT-2002-0013 in the subject line on the 
first page of your response.

FOR FURTHER INFORMATION CONTACT: For general information contact: 
Barbara Cunningham, Acting Director, Environmental Assistance Division, 
Office of Pollution Prevention and Toxics (7408M), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: [email protected].
    For technical information contact: Peter Gimlin, Environmental 
Protection Specialist, National Program Chemicals Division (7404T), 
Office of Pollution Prevention and Toxics, Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001; 
telephone number: (202) 566-0515; fax number: (202) 566-0473; e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. To Whom Does this Action Apply?

    Primarily, this action applies to the petitioner, the DLA. However, 
you may be potentially affected by this action if you process, 
distribute in commerce, or dispose of PCB waste generated by others, 
i.e., you are an EPA-permitted PCB waste handler. Potentially affected 
categories and entities include, but are not necessarily limited to:

------------------------------------------------------------------------
                                                         Examples of
           Categories                NAICS codes         potentially
                                                      affected entities
------------------------------------------------------------------------
Public Administration            92                  Petitioning Agency
                                                      (i.e., DLA)
------------------------------------------------------------------------



[[Page 58568]]

    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 in the table in this unit 
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 applies to certain entities. To 
determine whether you or your business is 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 
under FOR FURTHER INFORMATION CONTACT.

B. How Can I Get Copies of this Document or Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under docket ID number OPPT-2002-0013. The official public 
docket consists of the documents specifically referenced in this 
action, any public comments received, and other information related to 
this action. Although a part of the official docket, the public docket 
does not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. The official 
public docket is the collection of materials that is available for 
public viewing at the EPA Docket Center, Rm. B102-Reading Room, EPA 
West, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket 
Center is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The EPA Docket Center Reading Room telephone 
number is (202) 566-1744 and the telephone number for the OPPT Docket, 
which is located in EPA Docket Center, is (202) 566-0280.
    2. Electronic access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/. A frequently updated 
electronic version of 40 CFR part 761 is available at http://www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr761_00.html, a 
beta site currently under development. To access information about 
PCBs, go directly to the PCB Home Page for the Office of Pollution 
Prevention and Toxics at http://www.epa.gov/pcb.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket ID number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified in Unit I.B.1. EPA intends to work 
towards providing electronic access to all of the publicly available 
docket materials through EPA's electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

C. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket ID number in the subject line on the first page of 
your comment. Please ensure that your comments are submitted within the 
specified comment period. Comments received after the close of the 
comment period will be marked ``late.'' EPA is not required to consider 
these late comments. If you wish to submit CBI or information that is 
otherwise protected by statute, please follow the instructions in Unit 
I.D. Do not use EPA Dockets or e-mail to submit CBI or information 
protected by statute.
    1. Electronically. If you submit an electronic comment as 
prescribed in this unit, EPA recommends that you include your name, 
mailing address, and an e-mail address or other contact information in 
the body of your comment. Also include this contact information on the 
outside of any disk or CD ROM you submit, and in any cover letter 
accompanying the disk or CD ROM. This ensures that you can be 
identified as the submitter of the comment and allows EPA to contact 
you in case EPA can not read your comment due to technical difficulties 
or needs further information on the substance of your comment. EPA's 
policy is that EPA will not edit your comment, and any identifying or 
contact information provided in the body of a comment will be included 
as part of the comment that is placed in the official public docket, 
and made available in EPA's electronic public docket. If EPA can not 
read your comment due to technical difficulties and can not contact you 
for clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. 
Once in the system, select ``search,'' and then key in docket ID number 
OPPT-2002-0013. The system is an ``anonymous access '' system, which 
means EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    ii. E-mail. Comments may be sent by e-mail to [email protected], 
Attention: Docket ID Number OPPT-2002-0013. In contrast to EPA's 
electronic public docket, EPA's e-mail system is not an ``anonymous 
access '' system. If you

[[Page 58569]]

send an e-mail comment directly to the docket without going through 
EPA's electronic public docket, EPA's e-mail system automatically 
captures your e-mail address. E-mail addresses that are automatically 
captured by EPA's e-mail system are included as part of the comment 
that is placed in the official public docket, and made available in 
EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in Unit I.C.2. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By mail. Send your comments to: Document Control Office (DCO) 
(7407), Office of Pollution Prevention and Toxics (OPPT), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001, Attention: Docket ID Number OPPT-2002-0013.
    3. By hand delivery or courier. Deliver your comments to: OPPT 
Document Control Office (DCO) in EPA East Building Rm. 6428, 1201 
Constitution Ave., NW., Washington, DC. Attention: Docket ID Number 
OPPT-2002-0013. The DCO is open from 8 a.m. to 4 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the DCO is 
(202) 564-8930.

D. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically through EPA's electronic public docket or by e-mail. You 
may claim information that you submit to EPA as CBI by marking any part 
or all of that information as CBI (if you submit CBI on disk or CD ROM, 
mark the outside of the disk or CD ROM as CBI and then identify 
electronically within the disk or CD ROM the specific information that 
is CBI). Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person listed under FOR FURTHER INFORMATION CONTACT.

E. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide copies of any technical information and/or data you used 
that support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at the estimate that you provide.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternative ways to improve the proposed rule or 
collection activity.
    7. Make sure to submit your comments by the deadline in this 
document.
    8. To ensure proper receipt by EPA, be sure to identify the docket 
ID number assigned to this action in the subject line on the first page 
of your response. You may also provide the name, date, and Federal 
Register citation.

II. Background

A. What Action is the Agency Proposing to Take?

    In this document, the Agency is proposing to grant two petitions 
submitted by DLA to import PCB waste for disposal. In the absence of an 
exemption, import of this waste would be banned by TSCA section 
6(e)(3). One petition, dated January 19, 2001, is for an exemption to 
import foreign-source PCBs that were used on DoD installations in Japan 
and are currently stored on Wake Island, a United States territory in 
the Pacific Ocean west of Hawaii (Ref. 9). (While Wake Island is part 
of the United States, it is outside the Customs Territory of the United 
States, and TSCA defines ``manufacture'' to include ``import into the 
Customs Territory of the United States.'') In addition, 40 CFR 
761.99(c) does not exclude this waste from EPA's regulatory 
interpretation of ``import,'' because it never entered the Customs 
Territory prior to January 1, 1979. For more information on these 
definitional issues, see the Federal Register documents of November 1, 
2000 (Ref. 7) and March 30, 2001 (Ref. 8). The other petition, dated 
April 16, 2001, is to import foreign-generated PCBs owned by DoD that 
are currently in use or storage in Japan (Ref. 10). (The term 
``foreign-generated PCBs'' is used to identify those PCBs that DoD 
acquired from foreign sources and that are subject to the TSCA ban on 
import.)

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

    Section 6(e) of TSCA, 15 U.S.C. 2605(e), generally prohibits the 
manufacture of PCBs after January 1, 1979, the processing and 
distribution in commerce of PCBs after July 1, 1979, and most uses of 
PCBs after October 11, 1977. Section 6(e)(3)(A) of TSCA prohibits the 
manufacture, processing, and distribution in commerce of PCBs except 
for the distribution in commerce of PCBs that were sold for purposes 
other than resale before July 1, 1979. Section 6(e)(1) of TSCA also 
authorizes EPA to regulate the disposal of PCBs consistent with the 
provisions in TSCA section 6(e)(2) and (3).
    Section 6(e)(3)(B) of TSCA provides that any person may petition 
the Administrator for an exemption from the prohibition on the 
manufacture, processing, and distribution in commerce of PCBs. The 
Administrator may by rule grant an exemption if the Administrator finds 
that:
    (i) an unreasonable risk of injury to health or the environment 
would not result, and (ii) good faith efforts have been made to 
develop a chemical substance which does not present an unreasonable 
risk of injury to health or the environment and which may be 
substituted for such polychlorinated biphenyl. (15 U.S.C. 
2605(e)(3)(B)(i)-(ii)).

The Administrator may prescribe terms and conditions for an exemption 
and may grant an exemption for a period of not more than 1 year from 
the date the petition is granted. In addition, TSCA section 6(e)(4) 
requires that a rule under TSCA section 6(e)(3)(B) be promulgated in 
accordance with TSCA sections 6(c)(2), (3), and (4), which provides for 
publication of a proposed rule and an opportunity for an informal 
public hearing before a final rule can be issued.

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

    EPA's procedures for rulemaking under TSCA section 6 are found 
under 40 CFR part 750. This part includes Subpart B--Interim Procedural 
Rules for Manufacturing Exemptions (40 CFR 750.10 through 750.21) that 
describe the required content for manufacturing exemption petitions and 
the procedures EPA follows in rulemaking on these petitions.

III. Findings Necessary to Grant Petitions

A. Unreasonable Risk Finding.

    Before granting an exemption petition, TSCA section 6(e)(3)(B)(i) 
requires the Administrator to find that

[[Page 58570]]

granting an exemption would not result in an unreasonable risk of 
injury to health or the environment in the United States.
    To determine whether a risk is unreasonable, EPA balances the 
probability that harm will occur to health or the environment against 
the benefits to society from granting or denying each petition. See 
generally, 15 U.S.C. 2605(c)(1). Specifically, EPA considers the 
following factors:
    1. Effects of PCBs on human health and the environment. In deciding 
whether to grant an exemption, EPA considers the magnitude of exposure 
and the effects of PCBs on humans and the environment. The following 
discussion summarizes EPA's assessment of these factors. A more 
complete discussion of these factors is provided in the preamble to the 
proposed rule: Polychlorinated Biphenyls; Manufacturing, Processing, 
and Distribution in Commerce Exemptions (Ref. 3), in the rulemaking 
record for that proposed rule (OPTS Docket-66008F), 40 CFR 761.20, and 
in EPA's 1996 PCB Cancer Assessment (Ref. 32).
    i. Health effects. EPA has determined that PCBs cause significant 
human health effects including cancer, immune system suppression, liver 
damage, skin irritation, and endocrine disruption. PCBs exhibit 
neurotoxicity as well as reproductive and developmental toxicity. PCBs 
are readily absorbed through the skin and are absorbed at even faster 
rates when inhaled. Because PCBs are stored in animal fatty tissue, 
humans are also exposed to PCBs through ingestion of animal products 
(Ref. 32).
    ii. Environmental effects. Certain PCB congeners are among the most 
stable chemicals known, and decompose very slowly once they are 
released in the environment. PCBs are absorbed and stored in the fatty 
tissue of higher organisms as they bioaccumulate up the food chain 
through invertebrates, fish, and mammals. Significantly, bioaccumulated 
PCBs appear to be even more toxic than those found in the ambient 
environment, since the more toxic PCB congeners are more persistent and 
thus more likely to be retained (Ref. 32). PCBs also have reproductive 
and other toxic effects in aquatic organisms, birds and mammals.
    iii. Risks. Toxicity and exposure are the two basic components of 
risk. EPA has concluded that any exposure of humans or the environment 
to PCBs may be significant, depending on such factors as the quantity 
of PCBs involved in the exposure, the likelihood of exposure to humans 
and the environment, and the effect of exposure. Minimizing exposure to 
PCBs should minimize any eventual risk. EPA has previously determined 
that some activities, including the disposal of PCBs in accordance with 
40 CFR part 761, pose no unreasonable risks. Other activities, such as 
long-term storage of PCB waste, are generally considered by EPA to pose 
unreasonable risks.
    2. Benefits and costs. The benefits to society of granting an 
exemption vary, depending on the activity for which the exemption is 
requested. The reasonably ascertainable costs of denying an exemption 
vary, depending on the individual petition. As discussed in Unit IV., 
EPA has taken benefits and costs into consideration when evaluating 
each exemption petition.

B. Good Faith Efforts Finding

    Section 6(e)(3)(B)(ii) of TSCA also requires the Administrator to 
find that ``good faith efforts have been made to develop a chemical 
substance which does not present an unreasonable risk of injury to 
health or the environment and which may be substituted for [PCBs].'' 
EPA considers several factors in determining whether good faith efforts 
have been made. For each petition, EPA considers the kind of exemption 
the petitioner is requesting and whether the petitioner expended time 
and effort to develop or search for a substitute.
    To satisfy this finding in the context of an exemption to import 
PCBs for disposal, EPA looks at why such activity should occur in the 
United States, including what steps the petitioner has taken to find an 
alternative to importing the PCBs for disposal. While requiring a 
petitioner to demonstrate that good faith efforts to develop a 
substitute for PCBs makes sense when dealing with traditional 
manufacturing and distribution exemption petitions, the issue of the 
development of substitute chemicals seems to have little bearing on 
whether to grant a petition for exemption that would allow the import 
into the United States for disposal of waste generated by the DoD 
overseas. EPA believes the more relevant ``good faith'' issue for such 
an exemption request is whether the disposal of the waste should occur 
outside the United States.

IV. Proposed Disposition of Pending Exemption Petitions

A. The Petitions

    1. January 19, 2001, petition to import PCBs located on Wake 
Island. On January 19, 2001, DLA submitted a petition for a 1-year 
exemption to import certain PCBs and PCB items into the Customs 
Territory of the United States for disposal. The waste in question 
consists of approximately 91 metric tons [a metric ton is 1,000 
kilograms, or 2,200 pounds] of material, of which 31 metric tons DLA 
estimates to be liquids. Non-liquid material consists of electrical 
transformers, switches, circuit breakers, and debris (rags, small 
parts, and packaging materials). The laboratory analyses conducted by 
DLA indicate PCB concentrations of less than 50 parts per million (ppm) 
for all materials that could be tested without disassembly. DLA 
indicates that while it believes any components that could not be 
tested were excluded from this waste in question, there is a 
possibility that inaccessible internal components (e.g., small 
capacitors) of certain transformers may contain PCB constituents at or 
above 50 ppm.
    The material is currently stored in overpack containers at a U.S. 
Government-owned storage site on Wake Island. DLA proposes to ship the 
materials in these containers to the Customs Territory using U.S. flag 
carriers, and in accordance with applicable laws. Upon arrival in port, 
the containers would be transported by Department of Transportation 
(DOT) permitted carriers to the destination facility. On April 16, 
2001, DLA also amended its petition to include the possibility that the 
materials could be transported by air on U.S. military aircraft.
    DLA proposes in its January 19, 2001, petition to ship the 
materials to an EPA-approved PCB disposal facility. While DLA initially 
identified Trans Cycle Industries, Inc. (TCI) in Pell City, Alabama as 
the receiving facility, it amended its petition on September 28, 2001, 
to include any EPA-approved PCB disposal facility as a potential 
receiving facility, indicating that it is premature to specify which 
approved facility would be contracted to treat and dispose of the 
waste. DLA would treat and dispose of all material in compliance with 
the U.S. PCB regulations at 40 CFR part 761. Generally, DLA indicates 
their intention is to recycle all metal components that can be 
decontaminated; if they are not decontaminated they would be buried in 
a chemical waste landfill or incinerated. Used oils or liquids would be 
decontaminated by dechlorination or sent for energy recovery as fuel. 
Non-recyclable material will be disposed of as residual solid waste. 
DLA also notes that EPA-approved alternative methods may also be used. 
(Note that while DLA is proposing to send this material to a TSCA-
approved facility for initial processing, this is not normally required

[[Page 58571]]

for materials containing less than 50 ppm PCBs that have not been 
subject to dilution.)
    i. Information regarding no unreasonable risk. EPA requires that 
petitioners explain the basis of their contention that unreasonable 
risk of injury to health or the environment would not result from the 
granting of their petition (40 CFR 750.11(c)(6)). In its petition, DLA 
makes several arguments that the proposed activity would present no 
unreasonable risk. First, DLA notes the low levels of PCB contamination 
involved in this waste, i.e., <50 ppm for all tested material. As DLA 
notes, EPA allows the processing, distribution in commerce, and use of 
``excluded PCB products'' that contain <50 ppm PCBs because doing so 
does not generally present an unreasonable risk to health or the 
environment. Excluded PCB products include transformers and other 
electrical equipment, and used oils containing <50 ppm PCBs (subject to 
certain provisions, see definition Sec.  761.3).
    Secondly, DLA explains that the materials would be managed in 
accordance with applicable laws, ensuring its safe disposition. DLA 
notes the waste will be packed and shipped in compliance with DOT and 
EPA regulations, with appropriate bracing, over packs, secondary spill 
containment, etc. DLA cites its safe performance record and those of 
its contractors, who over the last 4 years have managed some 1.3 
million pounds of U.S.-manufactured PCB items returned from Japan 
without incident. Regarding disposal risks, DLA notes that ``EPA 
licensing of the proposed disposal facilities and approval of the 
proposed treatment methods assure that exempted import and disposal of 
the material will present no unreasonable risk of injury to health or 
the environment'' (Ref. 1, p.3).
    Finally, in assessing risks, DLA argues that any risks inherent in 
shipment and disposal are far outweighed by the risks inherent in 
continued storage of the materials in their present location on Wake 
Island. DLA notes that Wake Island, as a U.S. territorial possession, 
is defined by TSCA section (3)(13) and (3)(14) as part of the United 
States, and is entitled to statutory protection against unreasonable 
risk of injury to health or the environment. DLA also cites a recent 
Federal Register document (Ref. 8, p. 65656) in which EPA stated:
    The prohibitions and restrictions on PCBs under TSCA Section 
6(e) and its implementing regulations protect not only the United 
States citizens in the 50 states, but United States citizens in all 
the territories and possessions of the United States. PCBs in the 50 
States and in the territories and possessions must be managed and 
disposed of in a manner that does not present an unreasonable risk 
to health or the environment.

DLA also cites EPA's March 18, 1996, Import for Disposal Final Rule 
(Ref. 5, p. 11099):
    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.

DLA concludes that granting its petition ``will eliminate the risks 
cited above by removing these PCBs from Federal property that can not 
provide suitable disposal and permitting proper disposal in a manner 
limiting releases to the environment to the levels permitted by U.S. 
regulations.''
    EPA asks petitioners to estimate the economic costs of denial of 
their petition (40 CFR 750.11(c)(8)). DLA estimates that the annual 
cost of long-term storage on Wake Island is $40,000, covering 
inspection, labor, and container replacement, but excluding the costs 
of any possible site remediation that could result from a spill if it 
were to occur. DLA estimates costs of transport and alternative 
disposal in another country, would range from approximately $1.15 
million to $3 million, as opposed to approximately $0.85 million for 
disposal in the United States. However, as discussed in Unit 
IV.A.1.ii., DLA believes that disposal in another country is precluded 
by political and policy reasons. DLA also estimates that processing of 
this waste on-site at Wake Island would cost approximately $1.2 
million, but as discussed in Unit IV.A.1.ii., on-site treatment would 
not eliminate the need for an exemption, nor is it desirable for other 
reasons.
    ii. Information regarding good faith efforts. DLA submits in its 
petition that it has made good faith efforts to find alternatives to 
disposal of the material within the Customs Territory of the United 
States, and that there is no reasonable alternative available. DLA 
notes that although most of the PCBs in question are known to be at low 
enough levels (<50 ppm) that they could be disposed of legally in a 
solid waste landfill (as opposed to a TSCA or Resource Conservation and 
Recovery Act (RCRA) chemical waste landfill), that approach is not 
appropriate for Wake Island because of its small land area and low 
elevation. (The Wake Island atoll's land area is 6.5 square kilometers, 
and its highest point is only 6 meters above sea level). Moreover, DLA 
notes there are no facilities on Wake Island to provide on-site 
processing or treatment for disposal off-island. DLA examined the 
alternative of transporting and constructing such processing or 
treatment facilities on Wake Island, and concluded the following:
    To be properly processed, these PCB materials should be 
separated into three streams: 1) metallic components to be recycled; 
2) used oils to be treated; and 3) non-recyclable material to be 
disposed of as residual solid wastes. According to TCI, a disposal 
contractor who analyzed this issue for DLA, the cost of shipping a 
mobile PCB treatment system from the United States to Hawaii and 
back, and operating the system on Wake Island to clean and initially 
process the shipment, would be $1.2 million. Additional and 
potentially significant costs under this scenario include shipping 
the system from Hawaii to Wake Island and back; providing food and 
shelter for contractor personnel; providing power and water to 
operate the mobile system; and completing additional required 
environmental documentation and other management/oversight 
activities.
    This processing would also leave large quantities of metallic 
components and non-recyclable materials to be disposed of off-
island. In addition, on-island processing would be an incomplete 
solution that would not obviate the need for this petition, because 
this process would leave the Government with thousands of pounds of 
residual PCB-containing materials still requiring a 6(e) petition to 
be shipped into the United States for disposal. These requirements, 
including the cost of shipping these materials to proper disposal 
facilities, would also significantly increase the Government's 
overall on-site disposal costs.
    Processing on-site at a newly established facility will make it 
more difficult to mitigate the unavoidable risks involved in such 
activities. Serious PCB spills, worker accidents, and other 
incidents will likely be more difficult to address in such a remote 
location. Additional risks may be involved in the creation of the 
facility on Wake Island, including equipment transportation and 
construction activities. In light of the concerns cited above, 
engaging in such processing activities on Wake Island would present 
significantly greater risks than shipping the materials to a site 
where the infrastructure and facilities already exist to process 
them properly.

    DLA also investigated the possibility of disposal of this waste in 
another country. DLA reports there are no PCB disposal facilities in 
Japan where this waste originated, and DLA's attempt to ship the waste 
to a disposal facility in Canada was unsuccessful, as explained in 
detail by DLA in a footnote to its petition. To briefly summarize, in

[[Page 58572]]

March 2000, DLA contracted to have this waste shipped to a disposal 
facility in Canada as non-PCB waste, however, due to public protests 
and concerns of the Canadian government, the waste was not unloaded in 
Vancouver, but was instead returned to Japan the next month. In May 
2000, to allay Japanese concerns about the waste remaining in Japan, 
the waste was moved to the U.S. territory of Wake Island for interim 
storage while DLA sought another disposal solution.
    In consequence of the failure of this initial disposal attempt, DLA 
investigated disposal options in other countries; an effort that it 
summarized in its petition:
    The DLA and its primary disposal contractor made extensive 
contacts over a period of several months with disposal facilities in 
numerous locations outside the United States in an effort to 
identify firms who could dispose of this shipment. The DoD also 
consulted at length with State Department officials whose 
responsibilities included international environmental matters and 
the nations under consideration. The variety of problems identified 
in these contacts regarding overseas disposal of this shipment 
resulted in a consensus that use of existing facilities in other 
developed countries was not a reasonable alternative. The final, 
coordinated Government position is that this option should be 
eliminated from further consideration. Aside from these countries, 
there are no other nations with suitable facilities that could 
accept the material, given the constraints of Article 11 of the 
Basel Convention. Even if other countries could accept these wastes, 
activist groups could be expected to oppose United States disposal 
of its waste in third countries, because the Unites States has the 
technical capability to properly dispose of the hazardous materials 
itself.

    Therefore, DLA concludes that despite its diligent effort to 
identify disposal options both on-site and in other countries, there 
are no practicable alternatives to disposal in the Customs Territory of 
the United States.
    2. April 16, 2001, petition to import PCBs located in Japan. On 
April 16, 2001, DLA submitted a second petition; this petition sought a 
1-year exemption to import PCBs and PCB items currently in temporary 
storage on U.S. military installations in Japan. In revised figures 
provided in June 2001, DLA estimates that as much as 4,293,621 pounds, 
or approximately 1,952 metric tons of waste containing PCBs could be 
generated in Japan through the year 2006 and beyond; however, much of 
this material is currently still in use, and will not become waste 
requiring disposal for several years. Exactly how much waste could be 
imported under this exemption would vary depending on when the final 
exemption would be in effect, as the exemption is limited to a 1-year 
maximum. For example, if EPA were to grant a 1-year exemption to import 
that would expire on December 31, 2003, then according to DLA up to 
2,104,189 pounds, or approximately 956 metric tons of material could 
theoretically be available for shipment for disposal (Appendix 1: 
totals for CY2001 + CY2002 + 2003). The material in Japan consists of 
liquids, electrical transformers, capacitors, switches, circuit 
breakers, other miscellaneous items, and debris (rags, small parts, and 
packaging materials). PCB concentrations of the waste include amounts 
at all concentrations; however, most of the waste is at concentrations 
below 50 ppm PCB. Details of particular amounts and concentrations are 
provided in Appendix 1 (Refs. 9 and 11).
    DLA proposes to package and transport, treat, and dispose of this 
PCB waste in the same manner as waste identified in the previous 
petition; DLA notes compliance is required with the International 
Maritime Dangerous Goods (IMDG) Code/International Maritime 
Organization (IMO), International Civil Aviation Organization (ICAO) 
Technical Instructions, the International Air Transport Association 
(IATA) Dangerous Goods Code, UN Recommendations on the Transport of 
Dangerous Goods Code, and 49 CFR parts 100-199. DLA further notes 
proper handling and shipping shall include blocking, bracing, over 
packing, and inclusion of spill containment devices as required by 
applicable transportation regulations.
    DLA states it would handle and dispose of all PCBs in conformance 
with the PCB regulations at 40 CFR part 761. DLA notes that it has 
``considerable experience and expertise in awarding and administering 
disposal contracts for PCB waste in the United States'' and that it 
will only ``use contracts with commercial firms providing such services 
in accordance with all applicable Federal procurement statutes and the 
Federal Acquisition Regulations (FAR).'' DLA states that it has not yet 
identified the specific companies that would receive the waste, but 
that only Federal and State-permitted facilities would be used. 
Proposed treatment would be in accordance with the options allowed by 
40 CFR part 761, including landfilling, incineration, decontamination 
and recovery of metal, decontamination or burning of used oil, and 
alternative technologies where allowed.
    i. Information regarding no unreasonable risk. As in the previous 
petition, DLA notes that the materials in question would be managed in 
accordance with all applicable laws and regulations. Once in the United 
States, the PCB waste would be transported, handled, treated and 
disposed of in compliance with the PCB regulations at 40 CFR part 761. 
DLA states they would only contract with companies with the required 
Federal and State-permitted storage, treatment, and disposal facilities 
for dealing with PCBs and PCB items. DLA notes that it and its 
contractors ``have extensive experience in safely returning U.S.-
manufactured PCBs and PCB items to the United States for disposal,'' 
and that ``over the last four years DLA has returned over 1.3 million 
pounds of U.S.-manufactured PCBs and PCB items from Japan to the United 
States using the same standards and procedures described above with no 
known spills or safety problems.''
    In contrast, DLA notes that the continuing storage of PCBs at U.S. 
facilities in Japan is problematic. As discussed in Unit IV.A.2., DoD 
currently has a considerable amount of PCB waste in storage at its 
facilities in Japan, and more will accumulate over the coming years as 
equipment is retired from use and contaminated sites are cleaned up. 
DLA notes that due to the unavailability of disposal capacity much of 
DLA's foreign-manufactured PCB waste inventory has been in storage for 
years; some facilities, including the largest PCB storage facility at 
Sagami, are at or near their storage capacity, and movement of PCB 
waste presently in storage is frequently necessary to accommodate 
additional PCBs taken out of service. DLA summarizes the risks of this 
situation as follows:
    Continued, indefinite storage and lack of in-country disposal 
capacity increase the risk of exposure to U.S. military personnel, 
to people living in and around the U.S. military installations where 
the PCBs are stored, and to the environment should spills occur due 
to human error, severe weather such as typhoons, or earthquakes. 
Storage containers deteriorate, increasing the likelihood of PCB 
exposure to personnel who must monitor such items and repack them if 
they suspect leakage. Frequent handling creates multiple 
opportunities for spills or exposures. Long-term storage may 
increase DoD's liability and create clean-up costs if accidental 
spills occur. All of these scenarios potentially increase exposure 
to U.S. personnel, local citizens, and to the ground and water. This 
problem is magnified in Japan, because the installations where these 
materials are located are relatively small, storage space is at a 
premium, and the surrounding civilian communities are located in 
very close proximity to the stored PCBs. PCBs and PCB items in 
indefinite storage, therefore, present a greater risk to human 
health and the

[[Page 58573]]

environment than PCBs stored for disposal in the mainland United 
States.* * *

DLA further notes that EPA expressed concerns about long-term storage 
in the PCB Import for Disposal Rule (Ref. 5, p. 11096):
    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.

As in its previous petition, DLA cites the concerns EPA expressed in 
1996 about the benefits of safe disposal of PCBs in the United States 
as opposed to their continued presence in other countries. Finally, DLA 
notes that EPA mandates a 1-year storage for disposal limit for PCB 
waste, and concludes that ``the same long-term storage and risk 
concerns that apply to facilities in the U.S. should also apply to DoD 
installations overseas.''
    Beyond the immediate environmental risk, DLA describes other 
benefits to the United States that it believes would result from the 
granting of its petition:
    * * * failure of the United States to permit disposal of waste 
it generated overseas in furtherance of its national interests not 
only strains relations at the national government level, but also 
exacerbates tensions between each facility with such materials and 
the local community. In 1968, a tragic human poisoning episode in 
Western Japan affected over 1,000 people and caused 22 deaths. The 
``Yusho'' or ``rice oil disease'' was attributed to the consumption 
of rice bran oil contaminated with PCBs and served as a catalyst for 
current PCB bans such as those imposed by TSCA. As a result of this 
highly publicized incident, Japanese citizens exhibit particular 
sensitivity to PCB issues. Denial of this petition could adversely 
affect delicate U.S.-Japan relations over the presence and operation 
of the U.S. Armed Forces in Japan. The presence of PCBs on U.S. 
Military bases in Japan has, in fact, attracted significant adverse 
attention from Japanese politicians, the Japanese press, Japanese 
environmental groups and local citizens. Regular surveillance of DoD 
storage operations in Sagamihara and demands for inspections and 
sampling have occurred since a member of the U.S. Congress released 
a report outlining the storage and presence of PCBs and other 
hazardous materials on U.S. bases in Japan. The perceived failure by 
the U.S. Military to resolve the current PCB disposal dilemma posed 
by the TSCA importation ban invites unwarranted claims that the U.S. 
Military is neglecting its environmental responsibilities.

DLA concludes:
    Granting this petition presents no unreasonable risks and will 
serve to mitigate or lessen the risk of injury to public health and 
the environment of Japan. Petition approval will demonstrate 
environmentally responsible behavior by the United States and 
further the United States' interests by maintaining good relations 
with a valued ally as it will significantly reduce the risk of 
injury to the health of persons of both nations and to the 
environment in Japan. Granting this petition will eliminate the 
risks cited above by removing these PCBs from U.S. Military 
facilities in a country that can not provide suitable disposal in a 
manner limiting releases to the environment to the levels permitted 
by U.S. regulations.

    In response to the request that petitioners estimate the economic 
costs of denial, DLA concluded that the economic consequences of a 
petition denial ``are not readily susceptible to objective 
quantification.'' DLA did note, however, that indirect costs, such as 
those stemming from international controversy over disposal abroad or 
those related to continued storage and exposure risks in Japan, ``while 
difficult to quantify, are of potentially greater magnitude than the 
direct costs of petition denial.''
    ii. Information regarding good faith efforts. DLA argues in its 
petition that disposal of its PCBs in Japan is not an available 
disposal option:
    There are currently no Japanese government permitted operators 
or companies, or adequate facilities to provide treatment or 
processing of these items on-site at DoD Military installations in 
Japan. A report by UNEP [United Nations Environment Program], 
published in August 2000, lists three companies in Japan offering 
alternate technology for processing and treatment of PCBs. As far as 
DLA can determine at this time, these technologies are demonstration 
technologies that lack permits for operation in Japan. Additional 
risks and negative public perception by the local Japanese 
communities may be involved in the creation of such a facility, 
including objections to equipment transportation and construction 
activities. In light of the concerns cited above, engaging in on-
site processing activities using a temporary facility in Japan would 
present significantly greater public relations problems and 
potentially greater environmental and health risks than shipping the 
materials to a U.S. domestic site where the infrastructure and 
facilities already exist to process them properly. Finally, DoD 
policy currently prohibits the treatment of this material on a U.S. 
installation. In addition, even if DoD policy changed, any PCB 
treatment on Japanese territory on a U.S. installation would require 
permission from appropriate Japanese government officials.

DLA also notes elsewhere that even if a commercial or government 
disposal facility is established in Japan in the near future, DLA's 
inventory of PCBs is unlikely to receive first priority for access to 
that facility ahead of the large stockpiles of commercial or Japanese 
government PCBs in long-term storage in Japan.
    DLA further argues that disposal of this waste in another country 
is not a viable option. DLA cites its 1999 Report to Congress as 
background on the difficulty it faces in finding suitable disposal 
alternatives for PCB waste generated by DoD overseas. DLA also notes 
the difficulty it had in its previous attempt to ship low-level PCBs 
from Japan to Canada for disposal (resulting in the other petition that 
is the subject of this proposed rule). In particular, DLA discusses the 
difficulty of shipping waste from Japan to other countries posed by the 
Basel Convention (Ref. 36):
    In 1998 DLA awarded a contract for the proper disposal of PCBs 
from Japan to an acceptable facility outside the United States. 
However, because the PCBs fall under the Basel Convention on the 
Control of Transboundary Movement of Hazardous Wastes and Their 
Disposal (Basel), a DLA contractor was required to comply with the 
notice and consent regime imposed by Basel. Unfortunately, the DLA 
contractor was not able to persuade Japanese officials to prepare 
the necessary Basel notifications. DLA and its primary disposal 
contractor made extensive contacts over a period of several years 
with Japanese officials and disposal facilities in numerous 
locations outside the United States in an effort to identify firms 
who could dispose of such waste while satisfying Basel requirements. 
DoD also consulted at length with State Department officials in 
Japan and the United States whose responsibilities included 
international environmental matters. Although Japanese officials 
seemed willing to allow DoD to remove the PCBs pursuant to the 
United States--Japan Status of Forces Agreement (SOFA), the DLA 
contractor was unable to identify acceptable third countries that 
could receive the PCBs without Basel notification from Japan. The 
apparent preference by Japanese officials for shipment to the United 
States under the SOFA could not be accommodated due to the U.S. TSCA 
import ban. The variety of problems identified in various contacts 
regarding overseas disposal of PCBs resulted in a consensus that use 
of existing facilities in other developed nations was not a 
reasonable alternative.

    DLA concludes that it has made every reasonable effort to locate 
appropriate disposal sites outside the United States and that it has 
accordingly satisfied the good faith efforts criteria necessary for an 
exemption.

B. EPA's Proposed Decision on Petitions

    1. January 19, 2001, petition; EPA proposes to grant this petition. 
EPA agrees with DLA's reasoning that this waste, being primarily and 
perhaps exclusively at concentrations below 50 ppm PCBs, has little 
inherent potential to pose an unreasonable risk to health or the 
environment. Even more germane to this waste than the ``Excluded PCB 
Products'' processing, distribution, and use standards referred to by 
DLA are the disposal regulations at 40 CFR part 761, subpart D that do 
not require waste below 50 ppm PCBs be disposed of in

[[Page 58574]]

a TSCA or RCRA approved facility, provided the concentration was not 
affected by dilution. EPA notes the prohibition on import of PCBs at 
concentrations less than 50 ppm stems from the TSCA ban on 
``manufacture'' of PCBs and is not based on any specific finding of EPA 
that importing PCBs at concentrations less than 50 ppm for disposal 
presents any unreasonable risk. Prior to 1997, EPA allowed such imports 
for disposal without restriction. (EPA authorized the import for 
disposal of PCBs at concentrations of less than 50 ppm in 1984 (Ref. 
37), at 40 CFR 761.20(b)(2), using the authority of TSCA section 
6(e)(1). This import provision was recodified from Sec.  761.20(b) to 
Sec.  761.93(a)(1)(i) as part of the March 18, 1996, PCB Import for 
Disposal Rule (Ref. 5). On July 7, 1997, the U.S. Court of Appeals for 
the Ninth Circuit overturned the PCB Import for Disposal Rule, on the 
grounds that EPA could not rely, as it did, on TSCA section 6(e)(1) to 
authorize imports of PCBs for disposal. Sierra Club v. EPA, 118 F 3d 
1324 (9\th\ Cir. 1997). EPA amended Sec.  761.93 on June 29, 1998 (Ref. 
6) to reflect the Sierra Club decision, by changing it to state that no 
person may import PCBs or PCB items for disposal without a TSCA section 
6(e)(3) exemption.)
    EPA also concurs with DLA's assessment that transportation of this 
waste poses no significant risk if conducted in accordance with all 
applicable laws and regulations. Domestically, EPA permits the 
processing and distribution in commerce of PCBs and PCB items at 
concentrations less than 50 ppm for disposal (Sec.  761.20(c)(4)) 
without additional restriction. Higher concentration PCBs and PCB items 
may be processed and distributed in commerce for disposal in compliance 
with part 761 (which requires marking, manifesting, registration, 
recordkeeping, etc.). In issuing the PCB Import for Disposal rule EPA 
investigated and sought comment on the risks inherent in transportation 
of imported PCB waste, and determined those risks to be insignificant 
(Ref. 5, p. 11097).
    As this waste will be processed and, where required, disposed of at 
EPA-approved PCB disposal facilities, EPA finds that the import and 
disposal of this waste will not pose an unreasonable risk of injury to 
health or the environment. EPA approves all TSCA PCB disposal 
facilities on the basis of this standard, whether the unit be an 
incinerator, chemical waste landfill, or alternative process, such as a 
decontamination or chemical dechlorination operation. Similarly, EPA 
has previously determined that other disposal options for PCB waste at 
concentrations below 50 ppm, such as burning used oil for energy 
recovery in compliance with 40 CFR 761.20(e), pose no unreasonable risk 
to health or the environment.
    Moreover, any risks inherent in transportation and disposal must be 
weighed against the risks of continued long-term storage. As DLA noted, 
Wake Island is a part of the United States and under TSCA it is 
entitled to the protection against unreasonable risk of injury to 
health or the environment. Generally, EPA considers long-term storage 
of PCB waste to pose an unacceptable risk due to threat of leaks and 
spills, and with certain limited exceptions, EPA limits storage for 
disposal of PCB waste to 1-year from the date the waste was generated 
(40 CFR 761.65(a)). As discussed at length by EPA in recent Federal 
Register documents (Refs. 7 and 8) the long-term storage of PCBs in 
U.S. territories and possessions outside the Customs Territory of the 
United States, such as Wake Island, often poses additional risks; 
examples of problems cited included risk of severe storms, sensitive 
ecosystems, limited available land, low elevation and water resources 
that are vulnerable to contamination. For instance, while 40 CFR 
761.65(b)(1)(v) stipulates that PCB waste storage sites should not be 
located below the 100-year floodgate elevation, the highest elevation 
on Wake Island is only 6 meters above sea level. Therefore, EPA 
concludes that removal of this PCB material from Wake Island in the 
most expeditious manner possible will reduce risk of injury to health 
and the environment.
    Other benefits to the United States will be realized through the 
granting of this petition, as well. One of EPA's purposes in 
promulgating 40 CFR 761.99(c) was to address the inequitable treatment 
of the territories outside the Customs Territory of the United States 
that was inadvertently created by the manufacturing ban of TSCA section 
6(e)(3) (Refs. 7 and 8). EPA believes that granting this exemption will 
likewise allow waste stored in the territories to be managed and 
disposed of in a manner similar to waste generated in other States, and 
it will prevent the Pacific Island territories of the United States 
from bearing any undue burden for the disposal of such waste. 
Furthermore, as this waste is the property of the U.S. Government, and 
it was generated by the U.S. Government while conducting its affairs 
abroad, EPA believes the U.S. Government has an obligation to allow 
this waste to be safely disposed of under its jurisdiction in the 
United States. A grant of this petition would allow the United States 
Government to solve one of its own toxic waste problems without relying 
on other countries' disposal resources. Thus, EPA finds that DLA has 
provided adequate justification for a finding that the activity 
proposed in this petition would not pose an unreasonable risk of injury 
to health or the environment.
    EPA also finds that DLA has made good faith efforts to find 
alternatives to import into the Customs Territory. EPA agrees with DLA 
that Wake Island is an unsuitable location for attempts at on-site 
disposal, due to its extremely remote location, small size, lack of 
facilities, and fragile environment. In addition, as DLA notes, 
decontamination procedures typical for this type of waste would not 
eliminate all PCBs and the concomitant need for an exemption. EPA also 
believes DLA has made good faith efforts to find disposal alternatives 
in other countries; indeed, the waste came to Wake Island as a result 
of an unsuccessful effort to dispose of it abroad. EPA is well aware of 
DLA's growing difficulty in disposing of its foreign-manufactured waste 
abroad, a problem outlined in DLA's report to Congress in 1999 (Ref. 
33), and EPA has been aware of DLA's substantial efforts since April 
2000 to identify options for disposal of this particular waste in a 
responsible manner, including disposal in another country. EPA accepts 
DLA's assessment that with the notoriety that is now attached to this 
particular waste shipment and the difficulty of satisfying Basel 
Convention obligations, acceptance of this waste by another country for 
disposal is unlikely to ever occur. EPA further notes that disposal in 
a facility in the United States, but outside the Customs Territory of 
the United States, e.g., in another Pacific territory, is not an 
alternative because no suitable facilities exist. Finally, EPA also 
believes it relevant to the good faith issue that, as noted earlier, 
this waste was generated by the U.S. Government while conducting its 
affairs abroad, and thus the United States bears some obligation to 
provide for the safe disposal of this waste in the United States if it 
can not be easily disposed elsewhere.
    For these reasons, EPA finds DLA has satisfied the exemption 
criteria of TSCA section 6(e)(3)(B) and proposes to grant this 
petition.
    2. April 16, 2001, petition; EPA proposes to grant this petition. 
As with the previous petition, EPA concurs with DLA's assessment that 
transportation of this waste will pose no unreasonable

[[Page 58575]]

risk if conducted in accordance with all applicable laws and 
regulations. As noted in Unit IV.B.1., EPA permits the domestic 
processing and distribution in commerce of PCBs and PCB items for 
disposal in compliance with part 761, and in issuance of the PCB Import 
for Disposal rule EPA investigated and sought comment on the risks 
inherent in transportation of imported PCB waste, and determined those 
risks to be insignificant (Ref. 5, p. 11097). Also, as discussed in 
Unit IV.B.1. in regard to the Wake Island petition, EPA finds generally 
that the disposal of imported PCB waste at an EPA-approved PCB disposal 
facility poses no unreasonable risks as these facilities have been 
approved on the basis of that standard.
    EPA believes that granting this petition will benefit the United 
States in several ways. As DLA notes, the continued long-term storage 
of PCB waste on U.S. military facilities in Japan poses risks of 
exposure to U.S. personnel and the environment--risks that can be 
mitigated through the action proposed in this petition. Also, the 
reduction of risk to Japanese citizens must be considered advantageous, 
especially in light of the heightened concerns over PCBs in that 
country and the sensitivities surrounding the U.S. military's presence 
in Japan. Currently, the U.S. military is in the awkward position of 
explaining to its Japanese hosts that it can not remove its toxic waste 
from their country because United States law does not allow the waste 
to be sent to the United States. As with the Wake Island petition, 
granting this petition allows the United States to accept 
responsibility for solving its own toxic waste problems. Thus, EPA 
finds that the activity proposed in this petition would not pose an 
unreasonable risk of injury to health or the environment.
    EPA believes that DLA has demonstrated good faith efforts to find 
alternatives to disposal of this PCB waste in the United States. EPA is 
aware of the lack of adequate PCB disposal capacity in Japan, to which 
DoD's large inventory of PCB waste is itself testimony. While EPA is 
aware that some recent efforts are underway to establish new disposal 
capacity in Japan (Refs. 34 and 35), EPA believes it will be some time 
before these new facilities are operational and the large inventories 
of commercial and government PCB waste that have accumulated over the 
years in Japan will be eliminated. Moreover, as DLA notes, even 
assuming adequate disposal capacity becomes available in Japan in the 
near future, there are significant political obstacles that are likely 
to prevent the U.S. military disposing of its PCB waste in Japan, 
either off-site at a commercial facility or on-site at a U.S. base.
    EPA is generally aware of the increasing difficulties DoD has in 
disposing of its foreign-generated PCB waste abroad, as described in 
its Report to Congress, and as evidenced by the difficulties with the 
waste now stored on Wake Island. EPA also acknowledges the peculiar 
circumstances of DoD's PCBs, which, while present in one country, are 
owned by another's government, leading to significant difficulty in 
providing Basel notification to third countries. Given these 
difficulties, EPA concurs with DLA's conclusion that disposal in a 
third country is not a viable option for this waste. And, as stated 
earlier, EPA also believes it relevant to the good faith issue that 
since this waste was generated by the U.S. Government while conducting 
its affairs abroad, the United States bears some obligation to provide 
for the safe disposal of this waste in the United States if it can not 
be easily disposed of elsewhere.
    For these reasons EPA finds DLA has satisfied the exemption 
criteria of TSCA section 6(e)(3)(B) and proposes to grant this 
petition.

V. References

    1. U.S. Environmental Protection Agency (USEPA), Office of Toxic 
Substances (OTS). Polychlorinated Biphenyls (PCBs); Manufacturing, 
Processing, Distribution in Commerce, and Use Prohibitions; Final Rule. 
OPTS-60001. Federal Register (44 FR 31514, May 31, 1979).
    2. USEPA. Polychlorinated Biphenyls (PCBs); Expiration of the Open 
Border Policy for PCB Disposal; Notice. OPTS-62008. Federal Register 
(45 FR 29115, May 1, 1980).
    3. USEPA. Polychlorinated Biphenyls (PCBs); Manufacturing, 
Processing, and Distribution in Commerce Exemptions; Proposed Rule. 
OPTS-66008F. Federal Register (53 FR 32326, August 24, 1988).
    4. USEPA. Disposal of Polychlorinated Biphenyls; Proposed Rule. 
OPPTS-6009A. Federal Register (59 FR 62788, December 6, 1994) (FRL-
4167-1).
    5. USEPA. Disposal of Polychlorinated Biphenyls (PCBs); Import for 
Disposal; Final Rule. OPPTS-66009F. Federal Register (61 FR 11096, 
March 18, 1996) (FRL-5354-8).
    6. USEPA. Disposal of Polychlorinated Biphenyls (PCBs); Final Rule. 
OPPTS-66009C. Federal Register (63 FR 35384, June 29, 1998) (FRL-5726-
1).
    7. USEPA. Polychlorinated Biphenyls (PCBs); Return of PCB Waste 
from U.S. Territories Outside the Customs Territory of the United 
States; Proposed Rule. OPPTS-66020. Federal Register (65 FR 65654, 
November 1, 2000) (FRL-6750-6).
    8. USEPA. Polychlorinated Biphenyls (PCBs); Return of PCB Waste 
from U.S. Territories Outside the Customs Territory of the United 
States; Final Rule. OPPTS-66020A. Federal Register (66 FR 17468, March 
30, 2001) (FRL-6764-9).
    9. DoD, DLA. Petition from Lieutenant General, Henry T. Glisson, 
Director, to Carol Browner, Administrator, EPA. Subject: Enclosed 
petition. January 19, 2001. 15 pp. with attachments.
    10. DoD, DLA. Letter from Lieutenant General, Henry T. Glisson, 
Director, to Christine Todd Whitman, Administrator, EPA. Subject: 
Enclosed petition. April 16, 2001. 12 pp. with attachments.
    11. DoD, DLA. Electronic mail from Karen Moran, Environmental 
Quality Division, to Peter Gimlin, National Program Chemicals Division, 
OPPT, EPA. Subject: Updated inventory, Appendix 1 to April petition. 
June 28, 2001. 2 pp. with attachments.
    12. DoD, DLA. Letter from Richard J. Connelly, Director, DLA 
Support Services, to Peter Gimlin, Office of Pollution Prevention and 
Toxics, EPA. Subject: Revisions to both petitions. September 28, 2001. 
2 pp. with attachments.
    13. Cabinet set to approve two bills on PCB disposal. The Japanese 
Times Online. February 20, 2001. 3 pp.
    14. United Nations Environment Programme (UNEP). Inventory of 
World-wide PCB Destruction Capacity. First Issue. December 1998. 72 pp.
    15. United Nations Environment Programme (UNEP). Survey of 
Currently Available Non-Incineration PCB Destruction Technologies. 
First Issue. August 2000. 70 pp.
    16. Defense Agency will Inspect PCB Storage. The Yomiuri Shimbun. 
Tokyo. August 20, 2000. 2 pp.
    17. Pollution at Okinawa Bases Cannot be left Uncorrected. Asahi 
Shimbun. January 14, 1999. 3 pp.
    18. David Armstrong. U.S. Presence on Foreign Soil is Tainted. 
Boston Globe. November 15, 1999. 3 pp.
    19. Danielle Knight. Environment: Asian Women Demand Cleanup of 
U.S. Military Bases. Inter Press Service. October 16, 1998. 3 pp.
    20. Japan: Probe Fails to Confirm Source of Pollutant at Kadena Air 
Base. Kyodo News Service. September 28, 1998. 1 p.

[[Page 58576]]

    21. High Level of PCB Detected in Okinawa. Jiji Press Ticker 
Service. February 21, 1997. 1 p.
    22. Toxic PCB Detected at Ex-U.S. Facility. Jiji Press Ticker 
Service. October 2, 1996. 1 p.
    23. MOFA, Environment Agency to Investigate Base PCB Dumping. 
Ryukyu Shimp. August 19, 1998. 4 pp.
    24. Editorial: Probe Pollution at U.S. Bases. Ryukyu Shimp. August 
18, 1998. 3 pp.
    25. U.S. Base Pollution 8. Ryukyu Shimpo. August 28, 1998. 
1 p.
    26. U.S. Rejects Request for PCB Test at Kadena. Japan Economic 
Newswire. November 25, 1998. 1 p.
    27. Agency Concerned about U.S. Base Pollution. Jiji Press Ticker 
Service. February 21, 1992. 1 p.
    28. Japan to Check U.S. Base Employees for Waste Contamination. 
Asahi News Service. February 18, 1992. 2 p.
    29. Sagamihara City. Letter from Tokio Kanero, Councilman, to 
Chief, DRMO Sagami. Subject: FOIA request for information on hazardous 
material shipments. March 3, 1999. 1 p.
    30. Sagamihara City. Letter from Tokio Kanero, Councilman, to Paul 
Ortiz, Asia Zone Manager, DRMS International. Subject: March 3, 1999, 
FOIA request pertains to PCBs, heavy metals and asbestos only. March 
14, 1999. 1 p.
    31. DoD, DLA. Letter from Vice Admiral Keith W. Lippert, Director, 
to Christie Whitman, Administrator, EPA. Subject: Opportunity to meet 
regarding petitions. November 14, 2001. 1 p.
    32. USEPA, Office of Research and Development (ORD). PCBs Cancer 
Dose-Response Assessment and Application to Environmental Mixtures. EPA 
600P-96001F. September 1996. 75 pp. OPPTS-66009C (B3-026)
    33. DoD. Report to Congress: Foreign-Manufactured PCBs at U.S. 
Military Installations Overseas. March 1999. 20 pp.
    34. USEPA, Region 9. Electronic Mail from Max Weintraub to Peter 
Gimlin, EPA, OPPT, Re: Startech Environmental's 8/23/2001 Press 
Release. September 5, 2001. 2 pp.
    35. Japan Government Submits Legislation Requiring Destruction of 
All PCBs in 15 years. BNA International Environment Daily. March 23, 
2001. 1 p.
    36. USEPA. Hazardous Waste Management System; Notification 
Concerning the Basel Convention's Potential Implications for Hazardous 
Waste Exports and Imports. Federal Register (57 FR 20602, May 13, 
1992).
    37. USEPA. Toxic Substances Control Act; Polychlorinated Biphenyls 
(PCBs) Manufacturing, Processing, Distribution in Commerce, and Use 
Prohibitions; Exclusions, Exemptions and Use Authorizations; Final 
Rule. OPTS-62032A. Federal Register (49 FR 28172, July 10, 1984).

VI. Regulatory Assessment Requirements

A. Regulatory Planning and Review

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), this action is not a 
``significant regulatory action'' subject to review by the Office of 
Management and Budget (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.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
government jurisdictions.
    For purposes of assessing the impacts of this proposed rule on 
small entities, small entity is defined as:
    1. A small business that meets the Small Business Administration 
size standards codified at 13 CFR 121.201;
    2. A small governmental jurisdiction that is a government of a 
city, county, town, school district or special district with a 
population of less than 50,000; and
    3. A small organization that is any not-for-profit enterprise which 
is independently owned and operated and is not dominant in its field.
    After considering the impacts of this proposed rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities. EPA 
is proposing to grant two petitions by DLA to import PCBs for disposal. 
Only DLA, which is not a small entity, would be regulated by this 
proposed rule.

C. Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et 
seq., 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.
    This proposed rule would not impose any new information collection 
burden. Once the exemption is granted as proposed, DLA will be subject 
to the existing EPA regulations regarding the disposal of PCBs in 40 
CFR part 761. OMB has previously approved the information collection 
requirements contained in 40 CFR part 761 under the PRA, and has 
assigned OMB Control No. 2070-0112 (EPA ICR No. 1446.07).
    The annual public burden approved under OMB Control No. 2070-0112, 
is estimated to average 0.57 hours per response. As defined by the PRA 
and 5 CFR 1230.3(b), ``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. For this 
collection it 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.
    Copies of this ICR document may be obtained from Susan Auby, by 
mail at the Office of Environmental Information, Collection Strategies 
Division (2822T), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460-0001, by e-mail at [email protected], 
or by calling (202) 566-1972. Copies may also be downloaded from the 
Internet at http://www.epa.gov/icr. Include the EPA ICR number and/or 
OMB control number in any correspondence.

D. Unfunded Mandates Reform Act

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995, 
(UMRA), Public Law 104-4, EPA has determined that this proposal does 
not contain a Federal mandate that may result in expenditures of $100 
million or more for State, local, and tribal governments, in the 
aggregate, or the private sector in any 1 year. EPA is proposing to 
grant two petitions by DLA to import PCBs for

[[Page 58577]]

disposal. If the petitions are granted, and DLA imports PCBs for 
disposal, DLA would be required to comply with the existing regulations 
on PCB disposal at 40 CFR part 761. The only mandate that would be 
imposed by this proposed rule would be imposed on DLA. In addition, EPA 
has determined that this proposed rule would not significantly or 
uniquely affect small governments. The DLA petitions state that the 
PCBs will be disposed of in PCB-approved facilities. No new facilities, 
which could affect small government resources if a permit is required, 
are contemplated. EPA believes that the disposal of PCBs in previously 
approved facilities in the amounts specified in this proposal would 
have little, if any, impact on small governments. Thus, this proposed 
rule is not subject to the requirements of UMRA sections 202, 203, 204, 
and 205.

E. Federalism

    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'' is defined in the 
Executive order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. 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. EPA is proposing to grant two 
petitions from DLA to import PCBs and dispose of them in accordance 
with existing regulations. There will be no direct effects on the 
States, nor will there be any impact on the relationships between the 
various levels of government with respect to PCB disposal issues. Thus, 
Executive Order 13132 does not apply to this proposed rule. However, in 
the spirit of Executive Order 13132, and consistent with EPA policy to 
promote communications between EPA and State and local governments, EPA 
specifically solicits comment on this proposed rule from State and 
local officials.

F. Consultation and Coordination with Indian Tribal Governments

    Executive Order 13175, entitled Consultation and Coordination with 
Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA 
to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' This proposed rule does not have 
tribal implications, as specified in Executive Order 13175. EPA's 
proposal would grant two petitions from DLA to import PCBs and dispose 
of them in PCB-approved disposal facilities in accordance with existing 
regulations. EPA does not believe that this activity will have any 
impacts on the communities of Indian tribal governments. Thus, 
Executive Order 13175 does not apply to this proposed rule. However, in 
the spirit of Executive Order 13175, EPA specifically solicits comment 
on this proposed rule from tribal officials.

G. Children's Health

    Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997), applies to any proposed rule that:
    1. Is determined to be ``economically significant'' as defined 
under E.O. 12866, and
    2. Concerns an environmental health or safety risk that EPA has 
reason to believe may have a disproportionate effect on children. If 
the regulatory action meets both criteria, the Agency must evaluate the 
environmental health or safety effects of the planned rule on children, 
and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This proposed rule is not subject to the Executive order because it 
is not economically significant as defined in E.O. 12866, and because 
the Agency does not have reason to believe the environmental health or 
safety risks addressed by this action present a disproportionate risk 
to children. EPA is proposing to grant two petitions from DLA to import 
PCBs and dispose of them in PCB-approved disposal facilities in 
accordance with existing regulations. EPA believes that the import and 
disposal of the amount of PCBs specified in the exemption petitions 
will present little, if any, additional risk to persons living in the 
vicinity of the approved disposal facilities or in the communities 
through which the PCBs may be transported.

H. Energy Effects

    This proposed rule is not subject to Executive Order 13211, 
entitled Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use (66 FR 28355 (May 22, 2001), 
because it is not a significant regulatory action under Executive Order 
12866.

I. The National Technology Transfer and Advancement Act

    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) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. This 
proposed rule does not involve technical standards. Therefore, EPA is 
not considering the use of any voluntary consensus standards.

J. Constitutionally Protected Property Rights

    EPA has complied with Executive Order 12630, entitledGovernmental 
Actions and Interference with Constitutionally Protected Property 
Rights (53 FR 8859, March 15, 1988), by examining the takings 
implications of this proposed rule in accordance with theAttorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings issued under the Executive order.

K. Civil Justice Reform

    In issuing this proposed 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).

Lists of Subjects in 40 CFR Part 761

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



[[Page 58578]]


    Dated: September 12, 2002.
Stephen L. Johnson,
Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.

    Therefore, 40 CFR chapter I is proposed to be amended as follows:

PART 761--[AMENDED]

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

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


    2. Section 761.80 is amended by adding a new paragraph (j) to read 
as follows:


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

* * * * *
    (j) The Administrator grants the following petitions to import PCBs 
and PCB items for disposal pursuant to this part:
    (1) United States Defense Logistics Agency's January 19, 2001, 
petition for an exemption for 1 year to import PCBs and PCB Items 
stored on Wake Island and identified in its petition for disposal.
    (2) United States Defense Logistics Agency's April 16, 2001, 
petition for an exemption for 1 year to import PCBs and PCB Items 
stored or in use in Japan and identified in its petition, as amended, 
for disposal.
* * * * *

[FR Doc. 02-23718 Filed 9-13-02; 2:56 pm]
BILLING CODE 6560-50-S