[Federal Register Volume 68, Number 119 (Friday, June 20, 2003)]
[Rules and Regulations]
[Pages 36927-36929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-15668]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 761

[OPPT-2003-0029; FRL-7314-2]
RIN 2070-AC01


Polychlorinated Biphenyls; Use of Porous Surfaces; Amendment in 
Response to Court Decision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is revising the language of the regulations affecting the 
use of polychlorinated biphenyls (PCBs) in the Code of Federal 
Regulations (CFR) to conform to a court decision vacating an amendment 
to these regulations. EPA's 1998 amendments to the PCB disposal 
regulations added a use authorization for porous materials contaminated 
by spills of liquid PCBs. Due to an editing error, the regulation 
referred to a unit of measurement inapplicable to the concentration of 
PCBs in liquids. In 1999, EPA issued a final rule correcting a number 
of errors in the 1998 action, including the porous surfaces use 
authorization. On January 30, 2001, the United States Court of Appeals 
for the District of Columbia Circuit (the Court) vacated the portion of 
the 1999 amendment which pertained to the porous materials use 
authorization. This document revises the CFR to conform to the court 
decision, and requires no notice and public comment.

DATES: This final rule is effective on June 20, 2003.

FOR FURTHER INFORMATION CONTACT: For general information contact: 
Barbara Cunningham, Director, Environmental Assistance Division 
(7408M), Office of Pollution Prevention and Toxics, 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: Sara McGurk, 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) 566-0480; 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 manufacture, 
process, distribute in commerce, use, or dispose of PCBs or materials 
containing PCBs. Potentially affected entities may include, but are not 
limited to:
    [sbull] Oil and Gas Extraction (NAICS 21111), e.g., Facilities with 
surfaces contaminated by PCBs
    [sbull] Electric Power Generation, Transmission and Distribution 
(NAICS 2211), e.g., Facilities with surfaces contaminated by PCBs
    [sbull] Construction (NAICS 23), e.g., Facilities with surfaces 
contaminated by PCBs
    [sbull] Food Manufacturing (NAICS 311), e.g., Facilities with 
surfaces contaminated by PCBs
    [sbull] Paper Manufacturing (NAICS 322), e.g., Facilities with 
surfaces contaminated by PCBs
    [sbull] Petroleum and Coal Products Manufacturing (NAICS 324), 
e.g., Facilities with surfaces contaminated by PCBs
    [sbull] Chemical Manufacturing (NAICS 325), e.g., Facilities with 
surfaces contaminated by PCBs
    [sbull] Primary Metal Manufacturing (NAICS 331), e.g., Facilities 
with surfaces contaminated by PCBs
    [sbull] Rail Transportation (NAICS 48211), e.g., Facilities with 
surfaces contaminated by PCBs
    [sbull] Lessors of Real Estate (NAICS 5311), e.g., Facilities with 
surfaces contaminated by PCBs
    [sbull] Waste Treatment and Disposal (NAICS 5622), e.g., Facilities 
with surfaces contaminated by PCBs
    [sbull] Public Administration (NAICS 92), e.g., Facilities with 
surfaces contaminated by 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 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 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 under FOR 
FURTHER INFORMATION CONTACT.

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

    1. Docket. EPA has established an official public docket for this 
action under docket identification (ID) number OPPT-2003-0029. 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. 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. Once in the system, select ``search,'' then key in the 
appropriate docket ID number.

II. Background

A. What Action is the Agency Taking?

    EPA is amending the regulation at 40 CFR 761.30(p) that governs the 
continued use of porous surfaces contaminated by spills of liquid PCBs 
to reflect a decision from the Court in

[[Page 36928]]

Utility Solid Waste Activities Group v. EPA, 236 F3d 749 (D.C. Cir. 
2001).

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

    The authority for issuing 40 CFR 761.30(p) was section 6(e)(2) of 
the Toxic Substances Control Act (TSCA), 15 U.S.C. 2605(e)(2). This 
amendment is issued pursuant to a decision of the Court.
    Section 6(e) of TSCA, 15 U.S.C. 2605(e), specifically regulates 
PCBs. It bans the manufacture, processing, distribution in commerce, or 
use of PCBs in other than a ``totally enclosed manner,'' unless the 
activity is specifically authorized by EPA through rulemaking. In order 
to authorize any of these activities, EPA must make an affirmative 
finding that the activity does not pose an unreasonable risk of injury 
to health or the environment. Comprehensive regulations addressing the 
manufacture, processing, distribution in commerce, use, and disposal of 
PCBs were promulgated by EPA in 1979 and codified at 40 CFR part 761.

C. What is the History of this Action?

    On December 6, 1994, EPA proposed extensive revisions to the PCB 
regulations. Some of the commenters on this proposal asked EPA to 
consider including an authorization for the use of porous surfaces that 
had been contaminated by old PCB spills. EPA considered the information 
submitted by the commenters and decided to include such a use 
authorization in the final amendments to the PCB regulations published 
in the Federal Register issue of June 29, 1998 (63 FR 35384) (FRL-5726-
1) EPA determined that the continued use of porous surfaces cleaned, 
sealed, and marked in accordance with the requirements of 40 CFR 
761.30(p) does not pose an unreasonable risk of harm to human health 
and the environment.
    EPA had intended to apply the cleaning, sealing, and marking 
requirements in this new provision of the regulations to use of all 
porous surfaces that had been contaminated by spills of liquids 
containing PCBs at levels greater than or equal to 50 parts per million 
(ppm), regardless of the residual contamination level on the surface of 
the material. This is the standard EPA historically has used to trigger 
the regulation of PCB disposal. Unfortunately, due to an editing error, 
the 1998 version of 40 CFR 761.30(p) referred to a unit of measurement 
inapplicable to the concentration of PCBs in liquids. Instead of the 50 
ppm standard for this use authorization, the 1998 final rule referred 
to ``>10 [mu]g/100 cm\2\.'' Shortly after the 1998 final rule was 
published, EPA discovered this and several other errors. EPA posted a 
list of the errors and appropriate corrections on its Internet site 
and, on June 24, 1999, in the Federal Register (64 FR 33755) (FRL-6072-
4), promulgated these corrections in a final rule without prior notice 
and comment.
    The Utility Solid Waste Activities Group and others challenged the 
1999 amendment to 40 CFR 761.30(p), arguing that EPA had failed to 
follow requisite procedures by issuing the amendment without notice and 
comment.

D. What is the Basis for this Action?

    On January 30, 2001, the Court vacated the correction to 40 CFR 
761.30(p). Utility Solid Waste Activities Group v. EPA, 236 F3d 749 
(D.C. Cir., 2001) The Court determined that EPA was required to 
promulgate the correction through full notice and comment rulemaking 
procedures consistent with section 553 of the Administrative Procedures 
Act (APA) (5 U.S.C. 553).
    Accordingly, EPA is issuing this document to revise the language of 
40 CFR 761.30(p) to conform to the Court's decision. The regulation at 
40 CFR 761.30(p) will now read as published in 1998. However, EPA 
continues to believe that the 1999 amendment of 40 CFR 761.30(p) is the 
appropriate approach for the continued use of porous surfaces 
contaminated by spills of liquid PCBs. The Agency intends to issue a 
proposal in the near future to amend 40 CFR 761.30(p).

III. Statutory and Executive Order Reviews

    This action amends 40 CFR part 761 to conform to a decision by the 
Court. Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), this action is not a 
``significant regulatory action'' and is therefore not subject to 
review by the Office of Management and Budget. In addition, this action 
does not impose any enforceable duty, contain any unfunded mandate, or 
impose any significant or unique impact on small governments as 
described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-
4). This action does not involve special consideration of environmental 
justice-related issues as required by Executive Order 12898, entitled 
Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations (59 FR 7629, February 16, 1994). 
Because this action is not subject to notice and comment requirements 
under the APA or any other statute, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.). This action also is not subject to Executive Order 13045, 
entitled Protection of Children from Environmental Health Risks and 
Safety Risks (62 FR 19885, April 23, 1997), because EPA interprets 
Executive Order 13045 as applying only to those regulatory actions that 
are based on health or safety risks, such that the analysis required 
under section 5-501 of the Executive order has the potential to 
influence the regulation. This action is not subject to Executive Order 
13045 because it does not establish any environmental standards 
intended to mitigate health or safety risks. This action does not 
involve technical standards and therefore is not subject to section 
12(d) of the National Technology Transfer and Advancement Act of 1995, 
15 U.S.C. 272 note. This final rule does not have federalism 
implications and, therefore, Executive Order 13132, entitled Federalism 
(64 FR 43255, August 10, 1999), does not apply. This action does not 
involve or impose any requirements that affect Indian Tribes, so the 
requirements of Executive Order 13175, entitled Consultation and 
Coordination with Indian Tribal Governments (65 FR 62749, November 6, 
2000), are not applicable. This final 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. Finally, this action is not subject to the Paperwork Reduction 
Act, 44 U.S.C. 3501 et seq., because it does not impose any monitoring, 
reporting, or recordkeeping requirements. EPA's compliance with the 
statutes and Executive orders for the underlying Disposal Amendments 
rule is discussed in the June 29, 1998, Federal Register (63 FR 35384).

IV. Congressional Review Act

    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

[[Page 36929]]

States prior to publication of the rule in the Federal Register. This 
rule conforms 40 CFR part 761 to a decision by the Court and 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), Reporting and recordkeeping 
requirements.


    Dated: June 13, 2003.
Stephen L. Johnson,
Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.

0
Therefore, 40 CFR chapter I is amended as follows:

PART 761--[AMENDED]

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

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


0
2. Amend Sec.  761.30(p)(1) by revising the introductory text to read 
as follows:


Sec.  761.30  Authorizations.

* * * * *
    (p) * * *
    (1) Any person may use porous surfaces contaminated by spills of 
liquid PCBs at concentrations >10 [mu]g/100 cm\2\ for the remainder of 
the useful life of the surfaces and subsurface material if the 
following conditions are met:
* * * * *

[FR Doc. 03-15668 Filed 6-19-03; 8:45 am]
BILLING CODE 6560-50-S