[Federal Register Volume 72, Number 82 (Monday, April 30, 2007)]
[Proposed Rules]
[Pages 21190-21197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-8182]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 761

[EPA-HQ-OPPT-2005-0042; FRL-8120-6]
RIN 2070-AB20


Polychlorinated Biphenyls; Manufacturing (Import) Exemption

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, processing, and 
distribution in commerce of polychlorinated biphenyls (PCBs). For 
purposes of TSCA, ``manufacture'' is defined to include import into the 
Customs Territory of the United States. 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. On July 21, 2005, the U.S. Defense 
Logistics Agency (DLA), a component of the Department of Defense (DOD), 
submitted a petition to EPA to import foreign-manufactured PCBs that 
DOD currently owns in Japan for disposal in the United States. In this 
document, EPA is proposing to grant DLA's petition and is soliciting 
public comment on this decision; if finalized, this decision to grant 
the petition would allow DLA to manufacture (i.e., import) certain PCBs 
for disposal.

DATES: Comments must be received on or before May 30, 2007.
    If a hearing is requested on or before May 24, 2007, an informal 
hearing will be held in Washington, DC on a date to be announced in a 
future Federal Register.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number HQ-EPA-OPPT-2005-0042, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution 
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460-0001.
     Hand Delivery: OPPT Document Control Office (DCO), EPA 
East Bldg., Rm. 6428, 1201 Constitution Ave., NW., Washington, DC. 
Attention: Docket ID Number HQ-EPA-OPPT-2005-0042. 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. Such deliveries are 
only accepted during the DOC's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2005-0042. EPA's policy is that all comments received will be included 
in the docket without change and may be made available on-line at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov, 
your e-mail address will be automatically captured and included as part 
of the comment that is placed in the docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket, visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the docket index 
available in regulations.gov. To access the electronic docket, go to 
http://www.regulations.gov, select ``Advanced Search,'' then ``Docket 
Search.'' Insert the docket ID number where indicated and select the 
``Submit'' button. Follow the instructions on the regulations.gov web 
site to view the docket index or access available documents. Although 
listed in the index, some information is not publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available electronically at 
http://www.regulations.gov, or, if only available in hard copy, at the 
OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/
DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave., NW., 
Washington, DC. The EPA/DC Public Reading Room hours of operation are 
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal 
holidays. The telephone number of the EPA/DC Public Reading Room is 
(202) 566-1744, and the telephone number for the OPPT Docket is (202) 
566-0280. Docket visitors are required to show photographic 
identification, pass through a metal detector, and sign the EPA visitor 
log. All visitor bags are processed through an X-ray machine and 
subject to search. Visitors will be provided an EPA/DC badge that must 
be visible at all times in the building and returned upon departure.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby 
Lintner, Regulatory Coordinator, Environmental Assistance Division 
(7408M), Office of Pollution Prevention

[[Page 21191]]

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: Tom Simons, 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) 566-0517; e-mail 
address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    This action primarily 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:
     Waste Treatment and Disposal (NAICS code 5622), e.g., 
Facilities that store or dispose of PCB waste.
     Materials Recovery Facilities (NAICS code 56292), e.g., 
Facilities that process and/or recycle metals.
     Public Administration (NAICS code 92), e.g., the 
Petitioning Agency (i.e., the Defense Logistics Agency).
    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. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
regulations.gov or e-mail. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM 
that you mail to EPA, 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 claimed as CBI. In addition to one complete version 
of the comments that includes 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. Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

A. What Action is the Agency Proposing to Take?

    In this notice of proposed rulemaking, the Agency is proposing to 
grant a petition submitted by DLA to import PCB waste for disposal. In 
the absence of an exemption, import of this waste would be banned by 
section 6(e)(3) of TSCA. The petition, dated July 21, 2005, is for an 
exemption to import certain foreign-generated PCBs owned by DOD that 
are currently in use or storage in Japan. (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.)
    On April 16, 2001, DLA submitted a similar petition to import over 
four million pounds of foreign-generated PCB waste. EPA granted that 
petition in a final rule document published in the Federal Register of 
January 31, 2003 (Ref. 1).

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 (which includes import) 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 section 6(c)(2), (3), and (4), which provide for a 
proposed rule, the opportunity for an informal public hearing, and a 
final rule.
    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, which describes the required 
content for manufacturing exemption petitions and the procedures EPA 
follows in rulemaking on these petitions. These rules are codified at 
40 CFR 750.10 through 750.21.

III. Findings Necessary to Grant Petitions

A. No Unreasonable Risk Finding

    Before granting an exemption petition, TSCA section 6(e)(3)(B)(i) 
requires the Administrator to find that granting an exemption would not 
result in an unreasonable risk of injury to health or the environment 
in the United

[[Page 21192]]

States. EPA has interpreted this provision to require a petitioner to 
demonstrate that the activity will not pose an unreasonable risk. (See 
40 CFR 750.11.)
    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 
1988 PCB proposed rule document published in the Federal Register of 
August 24, 1988 (Ref. 2).
    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.
    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. 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 
this 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 has interpreted this provision to require that a petitioner has the 
burden of demonstrating that it has made the requisite good faith 
efforts. (40 CFR 750.11) 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. In each case, the burden is on the petitioner to show 
specifically what they did to substitute non-PCB material for PCBs or 
to show why it was not feasible to substitute non-PCBs for PCBs.
    To satisfy this finding for requests for an exemption to import 
PCBs for disposal, a petitioner must show why such activity must occur 
in the United States. and what steps will be taken to eliminate the 
need to import PCBs in the future. While requiring a petitioner to 
demonstrate that good faith efforts to develop a substitute for PCBs 
makes sense when dealing with traditional manufacture 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 Department of Defense overseas. EPA 
believes the more relevant ``good faith'' issue for such an exemption 
request is whether the disposal of the waste could and/or should occur 
outside the United States.

IV. Proposed Disposition of Pending Exemption Petition

A. The Petition: July 21, 2005 Petition to Import PCBs Located in Japan

    On July 21, 2005, DLA submitted a petition seeking a 1-year 
exemption to import PCBs and PCB Items currently in temporary storage 
at U.S. military installations in Japan. In revised figures provided in 
November 2006 (Ref. 4), DLA estimates that as much as 1,328,482 pounds 
of waste contaminated with PCBs could be generated in Japan through the 
calendar year 2008. Exactly how much of this waste would be imported 
under this exemption would depend on the date when the final exemption 
would be in effect, as the exemption is limited to a 1-year maximum. 
The final exemption would be limited to the specific portion (amount 
and type) of such waste as provided by DLA prior to publication of the 
final rule. The material in Japan consists of liquids, electrical 
transformers, capacitors, switches, circuit breakers, other 
miscellaneous items and debris (rags, gaskets, and personal protective 
equipment). PCB concentrations of the waste include amounts in all 
regulatory concentrations (i.e., <50 parts per million (ppm), 50-499 
ppm, and >500 ppm); however, 88% of the waste is at concentrations 
below 50 ppm PCB and less than 5% of the total shipment is liquid PCBs 
greater than 50 ppm. Details of the particular amounts and 
concentrations DLA petitioned to import are provided in Refs. 3 and 4.
    DLA proposes to package and transport, treat and dispose of this 
PCB waste in the same manner as waste identified in its previous 
petitions (Ref. 1), which EPA granted in 2003 to allow the import of 
over 4,000,000 pounds of waste contaminated with PCBs; DLA notes that 
compliance is required with the International Maritime Dangerous Goods 
Code/International Maritime Organization, the International Civil 
Aviation Organization Technical Instructions, the International Air 
Transport Association Dangerous Goods Code, the United Nations 
Recommendations on the Transport of Dangerous Goods Code, and 49 CFR 
parts 100-199. DLA further notes that proper handling and shipping will 
include blocking, bracing, over packing, and inclusion of spill 
containment devices, as required by applicable transportation 
regulations.
    DLA states that it will 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

[[Page 21193]]

and administering disposal contracts for PCB waste in the U.S.'' and 
that it will only ``award contracts for treatment and disposal services 
with commercial firms. Contracts will be awarded in accordance with all 
applicable federal procurement statutes and the Federal Acquisition 
Regulations (FAR).'' On October 12, 2005, DLA selected Clean Harbors 
Environmental Services (CHES) in Coffeyville, Kansas to dispose of the 
PCB waste to be removed from Japan. CHES has disposed of PCBs returning 
from Japan at the Coffeyville facility on four separate occasions since 
2003 without incident. In addition, DLA will use shippers approved by 
the U.S. Department of Transportation when the waste materials are 
transported from the California port to the Coffeyville disposal 
facility. The surface commercial transport trucks and the sea vessels 
themselves are approved and contracted for use by the DOD Surface 
Deployment and Distribution Command.
    1. Information regarding no unreasonable risk provided by the 
petitioner. 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 that it 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 U.S. for disposal,'' and that 
``prior to safely returning and disposing of 2.7 million pounds of 
foreign-generated PCB containing waste under the previously granted 
exemption, DLA returned 2.4 million pounds of U.S.-manufactured PCBs 
and PCB Items from Japan since 1991 for compliant disposal without 
incident.''
    In contrast, DLA notes that the continued storage of PCBs at U.S. 
facilities in Japan is problematic. 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 in Japan, much of DLA's foreign-
manufactured PCB waste inventory in Japan has been in storage for years 
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 accumulation over extended time periods increases the 
risk of exposure to U.S. military personnel, to people living in and 
around the U.S. installations where the PCBs are stored, and to the 
environment should releases occur due to human error, or unforeseen 
severe weather, or seismic events. In addition, storage containers 
will deteriorate with time, increasing the likelihood that personnel 
who must monitor such items and repack them if they suspect leakage 
are exposed to the PCBs. Long-term storage may increase the DOD's 
liability for cleanup costs if spills occur. This would increase 
exposure to U.S. personnel and local citizens and could potentially 
result in ground and water contamination. Each time an item is 
handled, another opportunity for a spill or exposure is created. The 
storage situation is exacerbated 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. Moreover, the 
situation for the DOD is further complicated because of the 
perceptions of the local communities regarding PCBs.

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

    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. 
(61 FR 11096)

The same rule also underscored the benefit of prompt disposal in the 
United States (Ref. 5):

    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. (61 FR 11096)

Beyond the immediate environmental risk, DLA describes other benefits 
to the United States that it believes would result from the granting of 
its petition:

    In 1968, a tragic human poisoning episode in Western Japan 
affected over 1,000 people causing 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 
prohibitions such as those imposed by TSCA, the Stockholm 
Convention, and Japanese domestic law. As a result of this highly 
publicized incident, Japanese citizens exhibit particular 
sensitivity to PCB issues. Delicate U.S.-Japan relations over the 
presence and operation of U.S. military installations could be 
adversely affected by denial of this petition.
    The presence of PCBs on U.S. military bases in Japan has in the 
past attracted significant adverse attention from Japanese 
politicians, the Japanese press, Japanese environmental groups, and 
local citizens. There has been constant local surveillance of U.S. 
military PCB storage in Sagamihara and demands for inspections and 
sampling for PCBs since at least 1992, when a member of Congress 
released a report outlining the storage and presence of PCBs and 
other hazardous materials on U.S. bases in Japan. Any perception 
that the United States would return to stockpiling and long term 
storage of these materials invites unwarranted claims that the U.S. 
military is neglecting its environmental responsibilities.

DLA concludes:

    Allowing PCB material to remain in storage indefinitely may lead 
to degradation of storage containers and releases of PCBs into the 
environment from the materials located at temporary or permanent 
storage facilities. PCBs released into the environment as a result 
of disasters, accidents, container degradation or other events can 
present significant exposure risks. This material is currently 
stored, or will need to be stored, on crowded DOD facilities in 
close proximity to where U.S. military and civilian personnel and 
the local community live and work. Since there are no permitted PCB 
disposal facilities available to U.S. forces in Japan, and because 
of the unique environmental conditions in Japan, as noted above, the 
potential for PCB contamination via leaks from aging containers or 
accidental spills is higher at these locations than at EPA- 
permitted disposal facilities in the DOD civilian employees, U.S. 
military personnel, and contractors employed by the U.S. Government 
are at greatest risk.

    2. Information regarding good faith efforts provided by the 
petitioner. DLA argues in its petition that disposal of its PCBs in 
Japan is not an available disposal option:

    As DLA noted in its previous exemption requests, there are 
significant impediments to disposal on DOD military installations in 
Japan. To be properly processed, PCB materials should be separated 
into three streams: (1) metallic components to be decontaminated and 
recycled; (2) used oils to be treated/dechlorinated and recycled or 
burned for energy recovery; and (3) non-recyclable material to be 
treated and disposed of as residual solid wastes. Although certain 
portable treatment technologies are becoming available in Japan, the 
domestic regulatory standards are very stringent and would require 
PCB decontamination levels to be less than 0.5 ppm without dilution 
to qualify an item as being non PCB. Complicating the situation 
further is that any transfer or sale of property from the U.S. 
military installations into Japanese commerce is considered an 
``import'' of property. Japan has banned the importation of PCBs at 
any detectable concentration including concentrations below the very 
stringent 0.5 ppm level at

[[Page 21194]]

which Japan regulates domestic PCBs. DLA is not aware of any 
available technologies that are permitted in Japan that would treat 
all PCBs items to the level that PCBs are completely removed or that 
could be acquired at a cost that is economically feasible. Moreover, 
if such technology were to become available, it would not resolve 
the issue of the residual ``non-recyclable'' waste that would remain 
or result from the treatment process. There are no permitted 
commercial disposal facilities currently available to the U.S. 
military for PCB disposal in Japan; hence, treatment outside of 
Japan would still be required for the residual wastes resulting from 
any ``on-installation'' treatment process.

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. In particular, 
DLA discusses the difficulty of shipping waste from Japan to other 
countries posed by the Basel Convention:

    Prior to submitting its previous request to EPA for an exemption 
from the TSCA PCB import ban, DLA and its primary disposal 
contractor made contacts over a period of several years with 
Japanese officials and with disposal facilities located outside the 
U.S. in an effort to identify firms that could dispose of waste PCB 
items overseas while satisfying Basel Convention requirements. The 
DOD also consulted with State Department officials in Japan and the 
U. S. whose responsibilities included international environmental 
matters. These consultations resulted in a consensus that use of 
existing facilities in other developed countries was not a 
reasonable alternative. Even if other countries would accept these 
wastes, non-governmental organizations could be expected to oppose 
disposal of its U.S. waste in third countries, principally because 
the U. S. already has the technical capability to dispose of PCBs.

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 the Petition: July 21, 2005 Petition; EPA 
Proposes to Grant this Petition

    1. No unreasonable risk determination. 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. In addition, the risks to human health and 
the environment associated with long-term storage of this waste far 
outweigh the risks associated with the transportation of this waste 
from Japan to an approved disposal facility in the United States.
    As with the previous petition, EPA concurs with DLA's assessment 
that transportation of this waste will pose no unreasonable risk if 
conducted in accordance with all applicable laws and regulations. EPA 
permits the domestic processing and distribution in commerce of PCBs 
and PCB Items for disposal in compliance with 40 CFR 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). For the 
following reasons, EPA finds that there is no unreasonable risk from 
the transport of this waste to the United States for disposal:
    i. PCBs are hazardous and pose a potential risk to health and the 
environment. Proper disposal would reduce PCB-associated risks.
    ii. Risk results from a combination of exposure (likelihood, 
magnitude and duration) and the probability of effects occurring under 
the conditions of exposure. Because the probability of a transport 
accident occurring is low, the likelihood of exposure to PCBs is 
commensurately low. Consequently, the risk of adverse effects to human 
health or the environment is minimal.
    iii. The PCB-containing materials would be packaged in a manner 
consistent with federal, state, and local regulations addressing the 
storage and transport of hazardous materials. In addition, PCB waste 
would be continuously monitored during the water transport from Japan 
to the U.S. Contingency plans are required by the International 
Maritime Dangerous Goods Code and the Department of Transportation to 
be in place before and after the import of PCB-containing items to the 
United States. Moreover, the PCB items that would be transported to the 
United States are not combustible, which would make the probability of 
fires low. Together, these contingency measures would minimize exposure 
to humans and the environment in the event of an accident or emergency 
during ocean transport.
    iv. Given the aforementioned information, the exposure likelihood, 
frequency, and duration are so low that even though PCBs are considered 
to be highly hazardous, risk (combined exposure and hazard) would not 
be unreasonable to human health or the environment.
    v. The potential for human health risks are further mitigated by 
duration of exposure. PCBs are most hazardous following long-term 
(chronic) exposures. Under the transport scenario proposed, any 
exposures to humans (i.e., accidental or emergency situation) would be 
of very short duration. Hence, the low probability of exposure 
occurring combined with the short-term duration of exposure, should one 
occur, further supports a qualitative conclusion that there is no 
unreasonable risk to human health.
    vi. The long-term concern is the potential for accumulation in the 
ecological environment. Under a worst case scenario where all of the 
PCBs were released due to an unforeseen and highly unlikely 
catastrophic event during transport, PCB-exposed biological receptors 
could be adversely affected. However, this scenario is highly unlikely 
because it would require a complete failure of all safeguards that 
would be in place. The DLA analyses indicate that there would be a low 
probability of a complete failure. The alternative of storing the PCBs 
indefinitely seems to pose more risk than transport. Further, should an 
accident occur, emergency response authorities at least within U.S. 
waters, would be invoked to mitigate and/or remediate exposures.
    2. Good faith efforts to find substitutes met. Section 
6(e)(3(B)(ii) of TSCA requires the Administrator to make an additional 
finding, that ``good faith efforts have been made to develop a chemical 
substance that does not present an unreasonable risk of injury to 
health or the environment and which may be substituted for such 
polychlorinated biphenyl.'' EPA has interpreted this provision to 
require that a petitioner has the burden of demonstration that it has 
made the requisite good faith efforts. (See 40 CFR 750.11.)
     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. DLA has 
explored exporting this waste to other countries as an alternative but 
since this is waste owned by the United States, the waste may not be 
shipped to other countries in the area because the United States is not 
a party to the Basel Convention and does not have bilateral agreements 
with countries in the area. EPA also acknowledges the peculiar 
circumstances of DOD's PCBs, which, while present in one country, are 
owned by another country's government, leading to significant 
difficulty in providing Basel notification to third countries. Given 
these difficulties, EPA concurs with DLA's conclusion that

[[Page 21195]]

disposal in a third country is not a viable alternative for this waste.
    3 . Benefits of granting the petition--i. Avoiding the risks of 
long-term storage. EPA believes that granting the petition to import 
1,328,482 pounds of waste contaminated with PCBs (88% is less than 50 
ppm and less than 5% is liquid PCBs greater than 50 ppm) will benefit 
the United States and the environment in general 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 eliminated through the action 
proposed in the petition.
    ii. Ensuring proper and safe disposal. Granting the petition would 
allow the U.S. to accept responsibility for the toxic waste it 
generates by assuring proper and safe disposal in domestic permitted 
disposal facilities.
    iii . Ensuring the safety of Japanese citizens. EPA considers the 
reduction of risk to Japanese citizens to be 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. 
Granting the petition is the only practical mechanism to remove this 
waste from Japan. Otherwise the U.S. military is in the awkward 
position of explaining to its Japanese hosts that it cannot remove its 
own toxic waste from their country because U.S. law does not allow the 
waste to be sent to the United States.
    For these reasons EPA finds DLA has satisfied the exemption 
criteria of TSCA section 6(e)(3)(B) and proposes to grant the petition.

V. References

    1. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import) 
Exemptions. Final Rule. OPPT-2002-0013. Federal Register (68 FR 4934, 
January 31, 2003) (FRL-7288-6). Available at http://www.epa.gov/fedrgstr.
    2. EPA, Office of Toxic Substances (OTS). Polychlorinated 
Biphenyls; Manufacturing, Processing, Distribution in Commerce 
Exemptions. Proposed Rule. OPTS-66008F. Federal Register (53 FR 32326, 
August 24, 1988).
    3. DOD, DLA. Petition from Keith W. Lippert, Vice Admiral, SC, USN, 
Director to Stephen L. Johnson, Administrator, EPA. Subject: Petition 
to the Administrator, United Sates Environmental Protection Agency, For 
an Exemption Under the Toxic Substances Control Act to Import 
Polychlorinated Biphenyls (PCB) and PCB Items for Disposal. July 21, 
2005. 13 pp. with attachments.
    4. DOD, DLA. Electronic mail dated November 2, 2006 from Miriam 
Alonso, Hazardous Programs, to Tom Simons, National Program Chemicals 
Division, OPPT, EPA. Subject: Updated Petition Data for EPA for 
petition submitted July 21, 2005. 2 pp.
    5. EPA, OPPTS. Disposal of Polychlorinated Biphenyls; Import for 
Disposal. Final Rule. Federal Register (61 FR 11096, March 18, 1996) 
(FRL-5354-8). Available at http://www.epa.gov/fedrgstr.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: 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. 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. EPA is proposing to grant the petition by DLA to import PCBs 
for disposal. DLA would then 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 provisions of PRA, 44 U.S.C. 3501 et seq., and has 
assigned OMB control numbers 2070-0003 (EPA ICR No. 1000.06), 2070-0008 
(EPA ICR No. 1001.06), 2070-0011 (EPA ICR No. 1012.06), 2070-0021 (EPA 
ICR No. 0857.07), 2070-0112 (EPA ICR No. 1446.06), and 2070-0159 (EPA 
ICR No. 1729.02). Copies of these ICR documents may be obtained by mail 
at the Office of Environmental Information, Collection Strategies 
Division (2822), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460-0001, by e-mail at [email protected] 
or by calling (202) 566-1672. Copies may also be downloaded from the 
Internet at http://www.epa.gov/icr. Include the ICR and/or OMB numbers 
in any correspondence.
    As defined by 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. This includes the time needed to review instructions; 
develop, acquire, install, and utilize technology and systems for the 
purposes of collecting, validating, and verifying information, 
processing and maintaining information, and disclosing and providing 
information; adjust the existing ways to comply with any previously 
applicable instructions and requirements; train personnel to be able to 
respond to a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information.

C. 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.
    3. A small organization that is any not-for-profit enterprise that 
is independently owned and operated and is not dominant in its field.
    After considering the impacts of this proposed rule on small 
entities, EPA certifies 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 this petition by DLA to import PCBs for disposal. 
Only DLA, which is not a small entity, would be regulated by this 
proposed rule.

[[Page 21196]]

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 one year. EPA is proposing to 
grant a petition by DLA to import PCBs for disposal. If the petition is 
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 proposal would be 
imposed on DLA. In addition, EPA has determined that this proposal 
would not significantly or uniquely affect small governments. The DLA 
petition states 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, or 205.

E. Executive Order 13132: Federalism

    This action will not have a substantial direct effect on 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, entitled 
Federalism (64 FR 43255, August 10, 1999).

F. Executive Order 13175: 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 a petition 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. Executive Order 13045: 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 rule that:
    1. Is determined to be ``economically significant'' as defined 
under Executive Order 12866.
    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 Executive Order 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 the 
petition from DLA to import PCBs and dispose of them in approved PCB 
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. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution, or Use

    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

    This action does not involve any technical standards; therefore, 
section 12(d) of the National Technology Transfer and Advancement Act 
of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272 note), does not 
apply to this action.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This action does not entail special considerations of environmental 
justice related issues as delineated by Executive Order 12898, entitled 
Federal Actions to Address Environmental Justice in Minority 
Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

K. Executive Order 12630: Governmental Actions and Interference with 
Constitutionally Protected Property Rights

    EPA has complied with Executive Order 12630, entitled Governmental 
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 the Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings issued under the Executive order.

L. Executive Order 12988: 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, Reporting and recordkeeping requirements.


    Dated: April 19, 2007.
James B. Gulliford,
Assistant Administrator, Office of Prevention, Pesticides and Toxic 
Substances.
    Therefore, it is proposed that 40 CFR chapter I be amended as 
follows:

PART 761--[AMENDED]

    1. The authority citation for part 761 would continue 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:

[[Page 21197]]

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

* * * * *
    (j) The Administrator grants the United States Defense Logistics 
Agency's July 21, 2005 petition for an exemption for 1 year to import 
1,328,482 pounds of PCBs and PCB items stored or in use in Japan as 
identified in its petition, as amended, for disposal.
* * * * *
[FR Doc. E7-8182 Filed 4-27-07; 8:45 am]
BILLING CODE 6560-50-S