[Federal Register Volume 69, Number 172 (Tuesday, September 7, 2004)]
[Rules and Regulations]
[Pages 54025-54027]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20222]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 761

[OPPT-2004-0043; FRL-7343-6]
RIN 2070-AC01


Storage of PCB Articles for Reuse; Availability of Supplemental 
Response to Comments Document

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Availability of Supplemental Response to Comments Document.

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SUMMARY:  In 1998, EPA promulgated a major revision of the rules 
governing use, manufacture, processing, distribution in commerce, and 
disposal of polychlorinated biphenyls (PCBs). One of these amendments 
created a new authorization for storing PCB Articles for reuse, subject 
to certain requirements. These requirements were challenged in court. 
While the U.S. Court of Appeals for the Fifth Circuit's (the Court) 
decision generally upheld the requirements, the Court directed EPA to 
more fully address comments submitted during the rulemaking process 
that requested a waiver from the storage for reuse requirements for the 
electric utility industry. EPA has prepared a Supplemental Response to 
Comments Document that addresses those comments. That document explains 
why the comments do not contradict EPA's judgment that additional 
restrictions on storage for reuse were necessary to prevent an 
unreasonable risk, and do not support a generic waiver from the storage 
for reuse requirements for the electric utility industry. The 
Supplemental Response to Comments Document has been added to the 
rulemaking record and is available to the public.

ADDRESSES:  EPA has established a docket for this action under OPPT-
2004-0043. All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket/. Although listed in the index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically in EDOCKET or in hard copy at the OPPT Docket, EPA 
Docket Center, EPA West, Rm. B102, 1301 Constitution Ave., NW., 
Washington, DC. The Public Reading Room 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 the EPA 
Docket Center, is (202) 566-0280.

FOR FURTHER INFORMATION CONTACT:  For general information contact: 
Colby Lintner, Regulatory Coordinator, 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: Dave Hannemann, 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) 566-0508; e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:

[[Page 54026]]

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action if you are an 
electric utility that stores PCB Articles for reuse. Potentially 
affected entities may include, but are not limited to:
     Utilities (NAICS 22), e.g., Facilities that store PCB 
Articles for reuse; Electric Power Generation, Transmission and 
Distribution Facilities.
    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 Access Electronic Copies of this Document and Other 
Related Information?

    In addition to EDOCKET (http://www.epa.gov/edocket/), 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 on E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/.
    To access information about PCBs, go directly to the PCB Home Page 
at http://epa.gov/pcb.

II. Background

A. What Action is the Agency Taking?

    In 1998, EPA promulgated a major revision of the rules governing 
use, manufacture, processing, distribution in commerce, and disposal of 
PCBs at 40 CFR part 761 (``PCB Disposal Amendments'') (Ref. 1). One of 
these amendments created a new authorization for storing PCB Articles 
(as defined at 40 CFR 761.3) for reuse (40 CFR 761.35), subject to 
certain requirements. These requirements were challenged in court. 
Central and South West Services, et al, v. EPA, 220 F.3d 683 (5\th\ 
Cir. 2000) (Ref. 2). While the Court's decision generally upheld the 
requirements, the Court directed EPA to address comments submitted 
during the rulemaking process that requested a waiver from the storage 
for reuse requirements for the electric utility industry (Ref. 2). EPA 
has prepared a Supplemental Response to Comments Document that 
addresses those comments (Ref. 3).
    1. Rulemaking background. Under the proposed rule, a PCB Article 
could have been stored for reuse outside of a regulated storage area 
for up to 3 years, so long as the equipment was maintained as if it 
were in use and the equipment was labeled. In addition, records would 
have to have been kept on the date the equipment was removed from use, 
what its future use would be, and when service or repair of the 
equipment was planned. EPA Regional Administrators could have waived 
the 3-year limit, if justified, at the owner or operator's request. EPA 
also requested comment on whether the rule should include provisions to 
allow site-specific or nationwide waivers or exemptions from the 
storage for reuse requirements (Ref. 4, p. 62822).
    In proposing the storage for reuse requirements, EPA explained that 
it intended to prevent owners of PCB Articles from avoiding the 
disposal requirements for stored equipment by claiming that, despite 
the length of time the equipment had been in storage and its state of 
disrepair, they planned to reuse the equipment. EPA noted, ``This 
activity constitutes illegal disposal and creates additional risks of 
environmental exposure to PCBs while the equipment is `in storage for 
reuse.''' At the same time, EPA was aware of the need to balance the 
proposed restrictions against the ``many legitimate instances which 
warrant the storage of PCB equipment for many years for the purpose of 
reuse as spares for critical components of electrical systems'' (Ref. 
4, pp. 62821-62823).
    EPA published the proposed amendments to the storage for reuse 
rules on December 6, 1994, as part of the proposed PCB Disposal 
Amendments. The Agency originally stated that it would accept written 
comments on the proposal for 120 days after its publication (Ref. 4, p. 
62788), but extended the comment period by an additional 30 days based 
on a request from the public (Ref. 5). On June 6 and 7, 1995, EPA held 
a public hearing on the proposed rule in Washington, DC, where the 
Agency took oral comments. An additional period for written reply 
comments followed the hearing. Copies of all written comments and a 
transcript of the hearing are in the official public record for that 
rulemaking.
    Comments on the proposed rule, and EPA's responses, are discussed 
in the preamble to the final rule (Ref. 1, pp. 35399-35400) and in the 
Response to Comment Document (Ref. 6, p. 39). Commenters on the storage 
for reuse provision asked EPA to extend the proposed 3-year limit on 
storage for reuse outside of a regulated storage area. Commenters 
stated in particular that industries like pipelines and electric 
utilities needed a longer storage period because of the need to have 
replacement equipment at hand to maintain service during emergencies. 
In the final rule, EPA extended the 3-year limit for storage outside of 
a regulated storage area to 5 years, or for a longer period if the 
owner or operator has received the approval of the EPA Regional 
Administrator (40 CFR 761.35).
    Commenters also disagreed with the proposed requirement to label 
equipment in storage for reuse, pointing out that it duplicated 
existing recordkeeping requirements. Based on these comments, EPA did 
not include the labeling requirement in the final rule. However, the 
final rule does retain the requirement that the owner or operator of 
equipment in storage for reuse keep a record of the location where the 
equipment will be used when removed from storage. This requirement is 
needed to distinguish an article in storage for reuse from one in 
storage for disposal.
    Finally, electric utilities and natural gas pipeline and 
transmission companies objected to the provision of the proposal that 
would have allowed indefinite storage for reuse only in a storage area 
that met the requirements of Sec.  761.65(b). The commenters argued 
that they could not always store equipment for reuse in a Sec.  
761.65(b) storage area, since, for this equipment to be available as 
emergency replacements, it had to be stored near the site where it 
would be used. The final rule, therefore, allows PCB Articles to be 
stored indefinitely in a Sec.  761.65(b) storage area, or in a storage 
area permitted under the Resource Conservation and Recovery Act (RCRA) 
section 3004 or 3006.
    Commenters from the electric utility industry requested that EPA 
grant a national variance from the storage for reuse provisions for the 
electric utility industry. The industry commented that electric 
utilities store equipment that is electrically sound and that does not 
present a risk, and that stored equipment is vital to maintaining a 
reliable power system. Other commenters asserted that the recordkeeping 
requirements would be costly and difficult to implement. Several 
commenters also suggested that

[[Page 54027]]

individual electric utilities that have comprehensive PCB programs in 
place should be exempt from the storage for reuse requirements. The 
final rule did not include a provision allowing the industry site-
specific or nationwide waivers or exemptions from the storage for reuse 
requirements, because the commenters did not supply any data showing 
that the equipment stored for reuse at the commenters' facilities is 
maintained in such a way that it remains intact and non-leaking and 
therefore does not present a risk to health or the environment.
    2. Litigation background. Several entities representing the 
electric utility industry (Central and South West Services, Inc., 
Entergy Services, Inc., Mississippi Power Company, and Utility Solid 
Waste Activities Group, collectively referred to hereinafter as 
``USWAG'') petitioned for review of Sec.  761.35 in the U.S. Court of 
Appeals for the Fifth Circuit (Ref. 7). USWAG asked the Court to vacate 
Sec.  761.35 on the grounds that this section was not supported by 
substantial evidence in the record as a whole, and that, after 
soliciting comment whether to allow nationwide waivers of the storage 
for reuse rules, EPA failed to respond to comments arguing for such a 
waiver for the electric utility industry (Ref. 8, pp. 28-51).
    The Court rejected USWAG's first argument, holding that the proper 
standard of review for challenges to EPA rules restricting or 
prohibiting the use of PCBs is whether the rules are arbitrary and 
capricious, a more deferential test than inquiring whether the rules 
are supported by substantial evidence. The Court further found that 
EPA's decision to strengthen the storage for reuse rules to prevent 
practices that pose an unreasonable risk to health and the environment 
was not arbitrary and capricious. On USWAG's second argument, the Court 
agreed that EPA had not adequately responded to the electric utility 
industry's comments requesting a waiver. Rather than vacating Sec.  
761.35, the Court remanded the rule to EPA to provide a reasoned 
statement of why it did not grant a national variance for the electric 
utility industry. The Court noted, ``EPA may well be able to justify 
its decision to refuse to promulgate a national variance for the 
electric utilities and it would be disruptive to vacate a rule that 
applies to other members of the regulated community.''
    3. EPA's response to industry's comments. EPA has prepared a 
Supplemental Response to Comments Document on storage of PCB Articles 
for reuse that addresses the electric utility industry's comments 
requesting a waiver from Sec.  761.35. That document explains why based 
both on the information provided by commenters and other information 
available to the Agency, that a generic waiver from the storage for 
reuse requirements for the electric utility industry was not warranted. 
Based on the available information, EPA believes that additional 
restrictions on storage for reuse are necessary to prevent an 
unreasonable risk to human health and the environment.

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

    The Supplemental Response to Comments Document that EPA is adding 
to the rulemaking record provides a reasoned statement of why EPA did 
not grant a national variance from the storage for reuse requirements 
at 40 CFR 761.35 for the electric utility industry, as directed by the 
U.S. Court of Appeals for the Fifth Circuit in Central and South West 
Services, et al, v. EPA, 220 F.3d 683 (5\th\ Cir. 2000) (Ref.2).

III. References and Other Materials Added to the Rulemaking Record

    1. U. S. Environmental Protection Agency (USEPA), OPPT. Disposal of 
Polychlorinated Biphenyls (PCBs); final rule. Federal Register (63 FR 
35384, June 29, 1998) (FRL-5726-1).
    2. U.S. Court of Appeals for the Fifth Circuit. Central and South 
West Services, et al, v. United States Environmental Protection Agency. 
Case No. 98-60495, August 15, 2000.
    3. USEPA, OPPT, National Program Chemicals Division (NPCD). 
Supplemental Response to Comment Document on the Proposed Rule--
Disposal of Polychlorinated Biphenyls. January 2004.
    4. USEPA, OPPT. Disposal of Polychlorinated Biphenyls; proposed 
rule. Federal Register (59 FR 62788, December 6, 1994) (FRL-4167-1).
    5. USEPA, OPPT. Disposal of Polychlorinated Biphenyls (PCBs); 
extension of comment period and notice of informal hearing. Federal 
Register (60 FR 17510, April 6, 1995) (FRL-4948-1).
    6. USEPA, OPPT, NPCD. Response to Comment Document on the Proposed 
Rule--Disposal of Polychlorinated Biphenyls. May 1998.
    7. Central and South West Services, Inc., Entergy Services, Inc., 
Mississippi Power Company, and the Utility Solid Waste Activities Group 
(USWAG). Petition for Review (5\th\ Cir., August 7, 1998).
    8. USWAG. Brief of Petitioners Central and South West Services, 
Inc., Entergy Services, Inc., Mississippi Power Company, and the 
Utility Solid Waste Activities Group (USWAG) (Case No. 98-60495, 5\th\ 
Cir., April 27, 1999).
    9. USEPA, Region VI, Dallas, TX. Complaint and Notice of 
Opportunity for Hearing, TSCA Docket No. VI-533C. September 27, 1991.
    10. USEPA, Region VI, Dallas, TX. Consent Agreement and Consent 
Order, TSCA Docket No. VI-533C. June 11, 1992.
    11. USEPA, Region VI, Dallas, TX. Complaint and Notice of 
Opportunity for Hearing, TSCA Docket No. VI-676C(P). December 31, 1996.
    12. USEPA, Region VI, Dallas, TX. Consent Agreement and Consent 
Order, TSCA Docket No. VI-676C(P). June 30, 1997.
    13. USEPA, Office of Toxic Substances (OTS). Polychlorinated 
Biphenyls (PCBs); Manufacturing, Processing, Distribution in Commerce, 
and Use Prohibitions; Use in Electrical Equipment; final rule. Federal 
Register (47 FR 37342, August 25, 1982).
    14. USEPA. Information Collection Activities OMB Responses; notice. 
Federal Register (63 FR 57123, October 26, 1998) (FRL-6180-2).

List of Subjects in 40 CFR Part 761

    Environmental protection, Hazardous substances, Polychlorinated 
biphenyls.


    Dated: August 26, 2004.
Susan B. Hazen,
Acting Assistant Administrator, Office of Prevention, Pesticides and 
Toxic Substances.

[FR Doc. 04-20222 Filed 9-3-04; 8:45 am]
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