[Federal Register Volume 73, Number 45 (Thursday, March 6, 2008)]
[Proposed Rules]
[Pages 12053-12061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4429]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 761

[EPA-HQ-RCRA-2008-0123; FRL-8538-6]
RIN 2050-AG42


Polychlorinated Biphenyls: Manufacturing (Import) Exemption for 
Veolia ES Technical Solutions, LLC

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 (U.S.). TSCA section 6(e)(3)(B) 
gives EPA the 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 November 14, 2006, Veolia ES Technical Solutions, LLC, 
(Veolia) submitted a petition to EPA to import up to 20,000 tons of PCB 
waste from Mexico for disposal at Veolia's TSCA-approved facility in 
Port Arthur, Texas. In this document, EPA is proposing to grant 
Veolia's petition and soliciting comment on this proposed decision.

DATES: Comments must be received on or before April 21, 2008.
    If a hearing is requested on or before April 7, 2008, an informal 
hearing will be held at a location and on a date to be announced in a 
future Federal Register.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2008-0123 by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: Comments may be sent by electronic mail to: [email protected], Attention Docket ID No. EPA-HQ-RCRA-2008-0123.
     Fax: Comments may be faxed to 202-566-9744, Attention 
Docket ID No. EPA-HQ-RCRA-2008-0123.
     Mail: Comments may be sent to Environmental Protection 
Agency, EPA Docket Center (EPA/DC), Resource Conservation and Recovery 
Act (RCRA) Docket, 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC 
20460, Attention Docket ID No. EPA-HQ-RCRA-2008-0123. Please include a 
total of two copies.
     Hand Delivery: Comments may be hand delivered to the 
Public Reading Room, EPA West Building, Room 3334, 1301 Constitution 
Avenue, NW., Washington, DC, Attention Docket ID

[[Page 12054]]

No. EPA-HQ-RCRA-2008-0123. Such deliveries are only accepted during the 
docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information. Please include a total of two 
copies.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2008-0123. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or e-mail. 
The www.regulations.gov Web site 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 www.regulations.gov, 
your e-mail address will be captured automatically and included as part 
of the comment that is placed in the public 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 comments. 
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 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., 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 either electronically 
in www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA 
West, Room 3334, 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 telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the RCRA 
Docket is 202-566-0270. Copies cost $0.15/page.

FOR FURTHER INFORMATION CONTACT: William Noggle, Office of Solid Waste, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (703) 347-8769; e-mail 
address: [email protected]. Mail inquiries may be directed to the 
Office of Solid Waste (OSW), (5304W), 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does This Action Apply to Me?

    This action primarily applies to the petitioner, Veolia. 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-approved PCB waste handler. Potentially affected 
categories and entities include, but are not necessarily limited to:

------------------------------------------------------------------------
                                                 Examples of potentially
            Categories             NAICS codes      affected entities
------------------------------------------------------------------------
Waste Treatment and Disposal.....         5622  Facilities that manage
                                                 PCB waste.
Materials Recovery Facilities....        56292  Facilities that manage
                                                 PCB waste.
------------------------------------------------------------------------

    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 section 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 
www.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 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 comment 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:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     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.
     Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible.
     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 Veolia ES Technical Solutions., LLC 
(Veolia) to import PCB waste for disposal. In the absence of an 
exemption, the import of PCBs is banned by section 6(e)(3) of TSCA. The 
petition, dated November 14, 2006, is for an exemption to import

[[Page 12055]]

up to 20,000 tons of PCB waste from Mexico for disposal at Veolia's 
TSCA-approved facility in Port Arthur, Texas. Veolia's facility is 
authorized by EPA under TSCA to dispose of PCBs.

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 most 
uses of PCBs after October 11, 1977, the manufacture (which includes 
import) of PCBs after January 1, 1979, and prohibits the processing and 
distribution in commerce of PCBs after July 1, 1979. 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) also authorizes EPA to regulate the disposal of PCBs consistent 
with the provisions in section 6(e)(2) and (3).
    Section 6(e)(3)(B) stipulates 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 one year from 
the date the petition is granted. In addition, section 6(e)(4) requires 
that a rule under section 6(e)(3)(B) be promulgated in accordance with 
sections 6(c)(2), (3) and (4), which provide for a proposed rule, the 
opportunity for written comments and an informal public hearing, if 
requested, and a final rule.
    EPA's procedures for rulemaking under section 6 of TSCA 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 that 
EPA follows in rulemaking regarding 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, section 6(e)(3)(B)(i) of 
TSCA requires the Administrator to find that granting an exemption 
would not result in an unreasonable risk of injury to health or to the 
environment in the United States. EPA expects a petitioner to 
demonstrate in its petition 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 to 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 published in the Federal Register of August 24, 
1988.
    a. 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.
    b. Environmental effects. Certain PCB congeners are among the most 
stable chemicals known, and decompose very slowly once they are 
released into 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.
    c. 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 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 section 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 expects a petitioner to demonstrate in its petition why this 
standard is met. (See 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 can demonstrate that time and 
effort have been expended to develop or search for a substitute. In 
each case, the burden is on the petitioner to show specifically what 
was done 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 activities should 
occur in the United States and what steps have been taken to develop a 
substitute. While requiring a petitioner to demonstrate that good faith 
efforts to develop a substitute for PCBs makes sense when dealing with 
exemption petitions for traditional manufacture and distribution in 
commerce, 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 PCB 
waste. However, because section 6(e)(3)(B) allows a petitioner to 
request an exemption from any of the prohibitions

[[Page 12056]]

listed in section 6(e)(3)(A), EPA believes that it is appropriate to 
apply the standard in a way that is relevant to the particular 
exemption requested. Therefore, EPA believes that to effectuate 
Congress' intent, the relevant ``good faith'' issue for an exemption 
request to import PCBs for disposal is whether the disposal of the 
waste could and/or should occur outside the United States. 
(Alternatively, one could read the standard to mean that efforts must 
have been made to develop substitutes for the PCBs that are in the 
waste to be imported for disposal, an interpretation that would nearly 
always be met.)

IV. Proposed Disposition of Pending Exemption Petition

A. Summary of the Petition

    On November 14, 2006, Veolia petitioned EPA for a one-year 
exemption to import from Mexico approximately 20,000 tons of waste 
containing PCBs at concentrations of 50 or more parts per million 
(ppm). This material includes both solid and liquid PCB wastes, 
including electrical equipment (e.g., transformers, capacitors, 
switches and circuit breakers), dielectric fluids, used oils and 
solvents containing PCBs, debris (e.g., gloves, rags, small parts, 
packaging material), compacted empty drums, and contaminated soil. The 
PCB concentrations of the wastes are between 50 ppm and 500,000 ppm. 
The PCB waste is currently in temporary storage at customer facilities 
in Mexico, and would be collected and managed by Veolia's Mexican 
affiliate RIMSA prior to import. According to the petition, RIMSA 
operates the only authorized treatment plant and landfill disposal 
facility in Mexico, as well as eleven transfer stations.
    Veolia would truck the PCB waste from the various RIMSA facilities 
in Mexico to Veolia's TSCA-approved facility in Port Arthur, Texas. The 
road distance from the Mexican-U.S. border to the Port Arthur facility 
is approximately 460 miles from either the Brownsville or Laredo entry 
point. RIMSA would place the waste containing PCBs in drums or other 
DOT-and EPA-approved containers for shipment. Handling and shipping 
would include blocking, bracing, over-packing, and inclusion of spill 
containment devices, as required by applicable transportation 
regulations. The trucks will meet all DOT hazardous materials 
transportation standards, including proper placarding and marking, as 
well as any applicable EPA requirements, e.g., Sec.  761.40(b).
    All imported PCB waste would be transported to, and disposed of, at 
the Veolia Treatment Complex and Incineration Facility, located at 
Highway 73, West of Taylors Bayou, in Port Arthur, Texas 77640. The 
incinerator holds a Resource Conservation and Recovery Act (RCRA) 
permit from the State of Texas for hazardous waste disposal and TSCA 
authorization from EPA for PCB disposal. USEPA ID 
TXD000838896. The 150 million BTU/hr rotary kiln incinerator 
is 16 feet in diameter and 60 feet long. A secondary combustion chamber 
destroys volatilized organics. Under TSCA, it is authorized to burn 
solids, sludges, energetic liquids, lean water and containerized wastes 
at any PCB concentration. A minimum 99.9999% Destruction Removal 
Efficiency (DRE) for PCBs is achieved in compliance with TSCA. The 
facility is permitted to handle up to 150,000 tons per year of RCRA and 
TSCA waste and auxiliary fuel with hourly constraints on individual 
feed devices, feed concentrations, and heat releases. In accordance 
with the incinerator's TSCA approval and RCRA Part B permit, all 
resulting residues from the process are disposed of in a RCRA Subtitle 
C landfill permitted to take such waste. The facility also contains an 
analytical laboratory to test incoming wastes.
1. Information Regarding No Unreasonable Risk Provided by the 
Petitioner
    Veolia asserts in its petition that granting the petition would 
significantly decrease the probability of health and environmental harm 
and would benefit society by eliminating PCB-contaminated wastes from 
storage that could otherwise result in releases to the environment in 
North America.
    Veolia argues that shipment of these PCBs to its Port Arthur TSCA-
approved facility would provide the safest, most regulated type of PCB 
disposal, citing its compliance with DOT regulations and the shipping 
practices previously described. Veolia notes that EPA has previously 
concluded that the transportation of PCB waste in accordance with the 
DOT hazardous materials regulations for PCBs poses no unreasonable 
risks, citing EPA's statements in the 1996 PCB Import Rule (61 FR 
11096, at 11097-11098). Veolia also cites EPA's reference in that rule 
to DOT statistics that indicated only one serious incident involving 
PCB transport between January 1, 1990 and November 15, 1994, in 
comparison to 16,074 incidents involving other hazardous materials 
during a similar timeframe, including 14 serious incidents involving 
Class 7 radioactive materials (61 FR at 11098). Veolia states that, in 
preparation for its petition, it made inquiries at DOT and the American 
Trucking Association to determine whether more recent statistical data 
were available, and was advised that such statistical surveys have not 
been continued because PCBs are a Class 9 material and most research is 
now concentrated on higher risk classes.
    Regarding disposal risk, Veolia notes that the Port Arthur 
incinerator has provided for the thermal treatment of considerable 
quantities of PCBs and hazardous wastes, destroying in 2003 
approximately 21,000 tons of domestic PCB waste, about 35% of the total 
hazardous wastes incinerated at the facility. Since Veolia's TSCA 
disposal authorization was granted in 1992, Veolia maintains it has a 
very good compliance record. Veolia points to its facility managers' 
``open lines of communications'' with EPA and the Texas Commission on 
Environmental Quality (TCEQ) and their quick and diligent work to 
resolve any issues that may arise. Veolia references EPA's prior 
determination that the disposal of PCBs in accordance with the TSCA 
regulations in 40 CFR part 761 poses no unreasonable risk, citing the 
PCB Import Rule (61 FR at 11098) and referencing a January 31, 2003, 
EPA final rule granting a Defense Logistics Agency import petition (68 
FR 4934). Veolia notes that the Port Arthur TSCA-approved incinerator 
meets or exceeds all protective standards in 40 CFR part 761. Veolia 
notes further that when the import of PCB waste was allowed under the 
PCB Import Rule [1996-1997], it disposed of a significant volume of PCB 
waste imported from Mexico at its Port Arthur facility, and that it 
complied with all TSCA PCB requirements during that process.
    In terms of benefits, Veolia states: ``The benefits of disposing of 
PCBs that are in storage in Mexico are substantial. Continued 
indefinite storage and lack of disposal capacity in Mexico increase the 
risk of exposure to RIMSA personnel, to people living in and around the 
customer facilities where the PCBs are stored, and to the environment, 
should spills occur due to human error or severe weather, such as 
hurricanes or earthquakes. Storage containers can 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 exposure.'' Veolia notes 
that continued storage of PCBs in Mexico may pose an unreasonable risk 
to health

[[Page 12057]]

or the environment, quoting conclusions made by EPA in support of the 
1996 PCB Import Rule:

    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 11099)

Veolia then states that PCBs stored outside the United States pose a 
risk in the United States that can be addressed by disposal at EPA-
approved facilities, again quoting EPA:

    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 U.S. 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 
11099)

Finally, Veolia cites EPA's statement that the benefits of disposal in 
the United States outweigh the risks:

    While PCBs currently in storage or in the environment outside 
the United States pose less immediate risk of injury to health and 
the environment in the United States than PCBs in the United States 
today, they do pose some risk. EPA believes that the benefits of the 
removal of these PCBs outside the United States outweigh any risks 
associated with their disposal in TSCA-approved facilities. (61 FR 
11098).

Veolia concludes that: ``The benefit of prompt disposal at Veolia's 
incineration facility in Port Arthur, Texas, outweighs any risk 
associated with returning the PCB wastes to the U.S. for proper 
disposal. Granting this petition presents no unreasonable risks and 
will serve to mitigate or lessen the risk to human health and the 
environment from continued indefinite storage of the PCB wastes in 
Mexico.''
2. Information Regarding Good Faith Efforts Provided by the Petitioner
    Veolia's petition states that Mexico has no facilities to dispose 
of PCB wastes above 50 ppm concentration. Specifically, the petition 
states, ``Mexico does have storage and handling facilities for PCBs, 
but disposal capacity is simply not available. According to the recent 
Mexican Environment Minister, Alberto Cardenas, no new sites have been 
authorized for hazardous waste disposal in the last 15 years. Daily 
Environment, Dec. 10, 2003, page A-8. In Mexico, most organic hazardous 
wastes are disposed in cement kilns, but PCBs are banned from such 
disposal, as they are in the United States. Based on the low volume of 
PCB wastes in the country, there is no economic justification for 
private companies to build a facility for disposal of PCBs in Mexico.'' 
Veolia also cites several sources that assert that much hazardous waste 
in Mexico is improperly tracked and managed.
    Veolia also argues that disposal of Mexican PCB wastes in Europe is 
not a viable alternative: Specifically, the petition states, ``Disposal 
of the PCB wastes in Europe is not economically sound. In the past, 
some generators in Mexico have shipped PCBs by ocean carrier across the 
Atlantic Ocean to overseas facilities, usually in France or Finland. 
However, such shipments are significantly more expensive than transport 
to the United States and can pose higher risks because of the 
additional handling required for intermodal transport (truck to ship to 
truck). For example, the typical cost of sea transportation for one 40 
foot container with a capacity of 76 55-gallon drums from Vera Cruz 
Port, Mexico, to Rotterdam, Holland, for trans-shipment to France is 
about $7,000, not including land transportation costs to and from the 
ports. By comparison, the cost of truck shipment from Monterrey, 
Mexico, to the Port Arthur facility is about $2,700. Thus, just the 
transportation cost for overseas shipments is 3 times more expensive.''

B. EPA's Proposed Finding and Decision on the Petition

    EPA proposes to grant Veolia's petition, based on the following 
proposed findings.
1. No Unreasonable Risk Determination
    a. Risks Associated with Disposal at Veolia. 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, risks to human 
health and the environment associated with the long-term storage of 
this waste in Mexico far outweigh the risks associated with the 
requested exemption.
    b. Risks Associated with Transportation. EPA finds that the 
transportation of waste under the requested exemption would pose no 
unreasonable risk if conducted in accordance with all applicable laws 
and regulations, as described in the petition. As noted above, EPA 
allows 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 the transportation of imported 
PCB waste, and determined those risks to be insignificant. (61 FR 11096 
at 11097). EPA affirmed these conclusions in granting petitions from 
the Defense Logistics Agency to import PCB waste from Japan in 2003 (68 
FR 4934) and 2007 (72 FR 53152). For these and the following reasons, 
EPA finds that there is no unreasonable risk from the transport of this 
waste to the United States for disposal:
    i. 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, as the DOT data indicate, the likelihood of 
exposure to PCBs is commensurately low. Consequently, the likelihood of 
adverse effects to human health or the environment is minimal.
    ii. 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.
     iii. Given that PCBs are hazardous and pose a potential risk to 
health and the environment, and given 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.
    iv. 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 relatively short duration. Hence, the low probability of exposure 
occurring combined with the relatively short-term duration of exposure, 
should one occur, further supports a qualitative conclusion that there 
is no unreasonable risk to human health.
    v. The long-term concern is the potential for accumulation in the 
ecological environment. In a worst case scenario, where all of the PCBs 
in a given truck-load would be released due to an unforeseen and highly 
unlikely catastrophic event during transport, PCB-exposed biological 
receptors could be adversely affected in the vicinity of the release 
(and there would be the potential for long-range dispersal). However, 
this scenario is highly unlikely because it would require a complete 
failure of all safeguards in place. EPA believes that the alternative 
of storing the PCBs indefinitely poses

[[Page 12058]]

more risk than transport. Further, should an accident occur, emergency 
response authorities would be invoked to mitigate and/or remediate 
exposures.
    c. Benefits of Granting This Petition.
    i. Avoiding the Risks of Long-Term Storage. EPA believes that 
granting this petition to import 20,000 tons of waste contaminated with 
PCBs greater than 50 ppm will benefit the United States and the 
environment in general in several ways. As Veolia notes, the continued 
long-term storage of PCB waste in Mexico poses risks of exposure to 
human health and the environment--risks that can be greatly reduced 
through the action proposed in this petition.
    ii. Ensuring Proper and Safe Disposal. Granting this petition will 
ensure the proper and safe disposal of this PCB waste in Veolia's TSCA-
approved disposal facility and eliminate the risk of improper disposal 
and environmental release in Mexico, with its concomitant cross-border 
risks to the United States.
    iii. Ensuring the Safety of Mexican Citizens. EPA considers the 
reduction of risk to Mexican citizens to be advantageous, especially in 
light of the United States commitment to work with Mexico (and Canada) 
toward the virtual elimination of PCBs from the North American 
environment, as specified in the 1996 North American Regional Action 
Plan for PCBs under the North American Commission for Environmental 
Cooperation (CEC).
    d. Conclusion. For the reasons described above, EPA finds that 
granting the petition would pose no unreasonable risk of injury to 
health or the environment.
2. Good Faith Efforts To Find Substitutes Met
    EPA asserts that Veolia has demonstrated good faith efforts to 
identify alternatives to disposal of this PCB waste in the United 
States. EPA is aware of the lack of adequate PCB disposal capacity in 
Mexico. While EPA disagrees with Veolia's contention that there is no 
PCB disposal capacity in Mexico, EPA recognizes that the available 
disposal capacity is nonetheless very limited in both the quantity and 
concentration of the PCB waste it can process. For instance, in 1996, 
the CEC reported that S.D. Myers de M[eacute]xico, S.A. de C.V., 
operates a mobile disposal unit for the treatment of PCB waste, but 
only up to a concentration of 5,000 ppm and with a capacity of 150 tons 
a month. (Status of PCB Management in North America) S.D. Myers's 
facility is the only Mexican PCB disposal facility identified by UNEP 
in 2004 (Inventory of World-Wide PCB Destruction Capacity, Second 
Issue). Attempts to establish large hazardous waste incinerators with 
the capacity to handle large volumes and high concentrations of PCBs 
failed in Tijuana in the 1980s (TEESA) and Veracruz in 2005 (Altecin 
S.A. de C.V.). The fact that Mexican facilities have had to ship high-
concentration PCBs overseas to Europe for disposal only highlights the 
lack of adequate domestic disposal capacity.
    EPA believes that the shipment of PCB waste from Mexico to Europe 
is not a preferable alternative to PCB disposal in the United States. 
Such trans-Atlantic shipments greatly increase the distances involved 
in the transportation of this waste, as well as the amount of handling 
involved in the transfer of waste between ship and trains or truck, and 
therefore increase the risk that an accidental release of PCBs could 
occur during transit. Such releases could occur in U.S. waters, as 
container ships traveling from Mexico to Europe may make port calls 
along the U.S. coast during their journey. In addition, the high cost 
of this trans-Atlantic disposal option discourages the prompt removal 
of PCBs from use and storage, as well as their proper disposal. 
Reducing the cost of PCB disposal will encourage Mexican PCB equipment 
owners and PCB waste storers to dispose of these materials by proper 
means, reducing illegal disposal and its associated risk to human 
health and the environment.
    Given these circumstances, EPA finds that Veolia has made good 
faith efforts to identify alternatives to this proposed exemption, and 
the Agency is persuaded that disposal in Mexico or in a third country 
is not a practicable or preferable alternative for this PCB waste, 
relative to disposal in the United States.
    3. For all of the aforementioned reasons, EPA finds that Veolia has 
satisfied the exemption criteria of TSCA section 6(e)(3)(B) and 
proposes to grant this petition. In this rulemaking, EPA is also 
proposing certain terms and conditions in order to ensure no problems 
with stranded or returned waste shipments occur. Specifically:
     Veolia must have full financial responsibility for the 
disposal of any PCB waste imported under this petition; Veolia's 
financial assurance is detailed in the TSCA storage and disposal 
approval granted for the Port Arthur facility.
     If necessary, such as in the case of a Port Arthur 
facility shutdown, Veolia can and will arrange for alternative disposal 
of this waste at another TSCA-approved disposal facility in the United 
States; and
     Disposal of the imported PCB waste must occur within one 
year of import. This condition is based on 40 CFR 761.65(a)(1).

V. References

    1. Veolia ES Technical Solutions, LLC Petition from Greig R. 
Siedor, Vice President and Chief Legal Officer, to EPA, OPPT. 
Subject: Petition for Import Exemption for PCB Wastes Pursuant to 
Toxic Substances Control Act section 6(e). November 14, 2006. 9 pp.
    2. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import) 
Exemptions. Final Rule. EPA-HQ-OPPT-2005-0042. Federal Register (72 
FR 53152, September 18, 2007) (FRL-8143-4). Available at http://www.epa.gov/fedrgstr.
    3. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import) 
Exemptions. Final Rule. EPA-HQ-OPPT-2002-0013. Federal Register (68 
FR 4934, January 31, 2003) (FRL-7288-6). Available at http://www.epa.gov/fedrgstr.
    4. 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.
    5. 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).
    6. Commission for Environmental Cooperation. Status of PCB 
Management in North America. ISBN 0-921894-28-7, (1996): 158 pp. 
Available at: www.cec.org.
    7. UNEP. Inventory of World-Wide PCB Destruction Capacity, 
Second Issue, (December 2004): 78 pp. Available at: http://www.chem.unep.ch/pops/.
    8. Commission for Environmental Cooperation/PCB Task Force. PCB 
Regional Action Plan; Sound Management of Chemicals Project, 
(December 1996): 25 pp. Available at: www.cec.org.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866 (Regulatory Planning and Review)

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
EPA is proposing to grant this petition by Veolia to import PCBs for 
disposal at its Port Arthur facility. Veolia would then be subject to 
the existing EPA regulations regarding the disposal of PCBs in 40 CFR 
part 761. However, the Office of Management and Budget (OMB) has 
previously approved the information collection requirements

[[Page 12059]]

contained in the existing regulations 40 CFR Part 761 under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2070-0112, EPA ICR number 1446.08. A 
copy of the OMB approved Information Collection Request (ICR) may be 
obtained from the Collection Strategies Division; U.S. Environmental 
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC 
20460 or by calling (202) 566-1682.
    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.
    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 in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) 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 governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations 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 today's 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 this petition submitted by Veolia to import PCBs 
for disposal at its Port Arthur facility. Only Veolia, which is not a 
small entity, would be regulated by this proposed rule. We continue to 
be interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    EPA has determined that this rule 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 submitted 
by Veolia to import PCBs for disposal at its Port Arthur facility. If 
the petition is granted, and Veolia imports PCBs for disposal, Veolia 
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 Veolia. In addition, EPA has 
determined that this proposal would not significantly or uniquely 
affect small governments. The Veolia petition states that the PCBs will 
be disposed of in Veolia's TSCA-approved facility. No new facilities, 
which could affect small government resources if a permit is required, 
are contemplated. EPA believes that the disposal of PCBs in a 
previously approved facility in the amount specified in this proposal 
would have little, if any, impact on small governments. Thus, today's 
rule is not subject to the requirements of sections 202 and 205 of the 
UMRA.

E. Executive Order 13132 (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's proposal would grant a 
petition submitted by Veolia to import PCBs and dispose of them in its 
TSCA-approved disposal facility in Port Arthur, Texas, in accordance 
with existing regulations. Thus, Executive Order 13132 does not apply 
to this rule.
    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

[[Page 12060]]

proposed rule from State and local officials.

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 submitted by Veolia to import PCBs and 
dispose of them in its TSCA-approved disposal facility in Port Arthur, 
Texas, 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 
rule. However, in the spirit of Executive Order 13175, EPA specifically 
solicits comment on this proposed rule from tribal officials.

G. Executive Order 13045 (Protection of Children From Environmental 
Health Risks and Safety Risks)

    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, 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 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 Veolia to import PCBs and dispose of them at its TSCA-
approved PCB disposal facility in Port Arthur, Texas, in accordance 
with existing regulations. Because the facility will be operating 
within their EPA-approved quantities, the risk for storage and disposal 
of PCB-containing waste is already assumed by the surrounding 
communities.
    The public is invited to submit or identify peer-reviewed studies 
and data, of which the agency may not be aware, that assessed results 
of early life exposure to PCBs.

H. Executive Order 13211 (Energy Effects)

    This proposed rule is not subject to Executive Order 13211, 
``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, 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 rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.
    EPA welcomes comments on this aspect of the proposed rulemaking 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

J. Executive Order 12898 (Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations)

    Executive Order 12898, (59 FR 7629, February 16, 1994), establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA is committed to addressing environmental justice concerns and 
has assumed a leadership role in environmental justice initiatives to 
enhance environmental quality for all citizens of the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, income, or net worth bears 
disproportionately high and adverse human health and environmental 
impacts as a result of EPA's policies, programs, and activities. Our 
goal is to ensure that all citizens live in clean and sustainable 
communities. In response to Executive Order 12898, and to the concerns 
voiced by many groups outside the Agency, EPA's Office of Solid Waste 
and Emergency Response (OSWER) formed an Environmental Justice Task 
Force to analyze the array of environmental justice issues specific to 
waste programs and to develop an overall strategy to identify and 
address these issues (OSWER Directive No. 9200.3-17).
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. EPA asserts that no environmental justice issues are 
associated with this proposed rule. Veolia's Port Arthur facility has 
been approved by EPA to dispose of PCB waste since 1992 to store and 
treat PCBs, ensuring protection of human health and environment. The 
proposed rule also will not allow Veolia to import more waste than the 
Port Arthur facility is approved to store and treat. Therefore, the 
proposal will not result in any disproportionately negative impacts on 
minority or low-income communities.

Lists of Subjects in 40 CFR Part 761

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

    Dated: February 28, 2008.
Susan Parker Bodine,
Assistant Administrator for Solid Waste and Emergency Response.

    Therefore, title 40, chapter I of the Code of Federal Regulations 
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.

[[Page 12061]]

Subpart E--Exemptions

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


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

* * * * *
    (k) The Administrator grants Veolia ES Technical Solutions, LLC's 
November 14, 2006 petition for an exemption for 1 year to import up to 
20,000 tons of PCB waste from Mexico for disposal at Veolia's TSCA-
approved facility in Port Arthur, Texas. This petition is subject to 
the following terms and conditions:
    (1) Veolia accepts complete financial liability for the 
transportation, storage and disposal of all PCB waste imported into the 
United States under this petition.
    (2) In the eventuality that Veolia is unable to dispose of any PCB 
waste imported under this petition at its Port Arthur facility, Veolia 
shall arrange for the disposal of that PCB waste in an alternative 
TSCA-approved facility in the United States.
    (3) For purposes of compliance with the 1 year storage for disposal 
limit under Sec.  761.65(a), the date of removal from service for 
disposal for PCB waste imported under this petition is the date the PCB 
waste enters the United States.
* * * * *
 [FR Doc. E8-4429 Filed 3-5-08; 8:45 am]
BILLING CODE 6560-50-P