Disposal of Polychlorinated Biphenyls (PCBs)
[Federal Register: June 29, 1998 (Volume 63, Number 124)]
[Rules and Regulations]
[Page 35383-35474]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jn98-21]
[[Page 35383]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 750 and 761
Disposal of Polychlorinated Biphenyls (PCBs); Final Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 750 and 761
[OPPTS-66009C; FRL-5726-1]
RIN 2070-AC01
Disposal of Polychlorinated Biphenyls (PCBs)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is amending its rules under the Toxic Substances Control
Act (TSCA) which address the manufacture, processing, distribution in
commerce, use, cleanup, storage and disposal of polychlorinated
biphenyls (PCBs). This rule provides flexibility in selecting disposal
technologies for PCB wastes and expands the list of available
decontamination procedures; provides less burdensome mechanisms for
obtaining EPA approval for a variety of activities; clarifies and/or
modifies certain provisions where implementation questions have arisen;
modifies the requirements regarding the use and disposal of PCB
equipment; and addresses outstanding issues associated with the
notification and manifesting of PCB wastes and changes in the operation
of commercial storage facilities. This rule also codifies policies that
EPA has developed and implemented over the past 19 years. This rule
will streamline procedures and focuses on self-implementing
requirements and the elimination of duplication. Some activities
currently requiring PCB disposal approvals will no longer require those
approvals. EPA believes that this rule will result in substantial cost
savings to the regulated community while protecting against
unreasonable risk of injury to health and the environment from exposure
to PCBs.
DATES: This rule shall become effective August 28, 1998. This rule
shall be promulgated for purposes of judicial review at 1 p.m. eastern
daylight time on July 29, 1998 (see 40 CFR 23.5, 50 FR 7271).
The information collection requirements contained in this rule have
not yet been approved by the Office of Management and Budget (OMB) and
are not effective until OMB approves them. Once OMB has approved the
information collection requirements contained in this rule, EPA will
publish another document in the Federal Register to announce OMB's
approval and to amend 40 CFR part 9 to incorporate the assigned OMB
approval number into the table of OMB control numbers for EPA
regulations at 40 CFR 9.1.
FOR FURTHER INFORMATION CONTACT: Susan B. Hazen, Director,
Environmental Assistance Division (7408), Office of Pollution
Prevention and Toxics, Rm. E-543B, Environmental Protection Agency, 401
M St., SW., Washington, DC 20460, (202) 554-1404, TDD (202) 554-0551,
e-mail: TSCA-Hotline@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
Electronic Availability:
Electronic copies of the following documents: Response to Comments
Document on the Proposed Rule--Disposal of Polychlorinated Biphenyls
and Support Document for the PCB Disposal Amendments, Final Rule are
available from the EPA Home Page at the Federal Register -
Environmental Documents entry for this document under ``Laws and
Regulations'' (http://www.epa.gov/fedrgstr/).
The following outline is provided to assist the reader in locating
topics of interest in the preamble.
I. Regulated Entities
II. Background
A. General Reaction to Proposed Rule
B. Overview of Final Rule
C. Statutory Authorities
D. Unreasonable Risk Standard
III. Issues Not Addressed by this Rulemaking
A. Preempting Other Requirements
B. Toxicity of PCBs
C. Issues Deferred for Later Rulemaking
IV. Notice of Final Rulemaking
A. General Requirements
B. Manufacturing, Processing, Distribution in Commerce, and Use
C. Storage of PCB Articles Designated for Reuse
D. Marking
E. Disposal
F. Storage for Disposal
G. TSCA PCB Coordinated Approvals
H. Decontamination
I. Exemptions for Manufacturing, Importing, Processing,
Distributing in Commerce, and Exporting PCBs
J. Transboundary Movements
K. Change in Reportable Quantity -- Spill Cleanup Policy
L. Records and Monitoring
M. Amendments to the Notification and Manifesting Rule
V. Chart of Marking and Recordkeeping Requirements and EPA Forms
VI. Rulemaking Record
VII. References
VIII. Regulatory Assessment Requirements
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act and Executive Order 12875
E. Executive Order 12898
F. Executive Order 13045
G. National Technology Transfer and Advancement Act (NTTAA)
H. Submission to Congress and the General Accounting Office
I. Regulated Entities
Entities potentially regulated by this action are those which
manufacture, process, distribute in commerce, use, or dispose of PCBs.
Regulated categories and entities include:
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Examples of Regulated
Category Entities
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Industry Chemical manufacturers,
electroindustry
manufacturers, end-users of
electricity, PCB waste
handlers (e.g., storage
facilities, landfills and
incinerators), waste
transporters, general
contractors
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Utilities and rural electric cooperatives Electric power and light
companies
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Individuals, Federal, State, and Municipal Individuals and agencies
Governments which own, process,
distribute in commerce,
use, and dispose of PCBs
------------------------------------------------------------------------
This table is not exhaustive, but lists the types of entities that
could potentially be regulated by this action. Other types of entities
may also be regulated. To determine whether your entity is regulated by
this action, carefully examine the applicability criteria in 40 CFR
part 761. If you have questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding ``FOR FURTHER INFORMATION CONTACT'' unit.
II. Background
A. General Reaction to Proposed Rule
On June 10, 1991 (56 FR 26738), EPA issued an Advanced Notice of
Proposed Rulemaking (ANPR) to solicit comments on possible changes to
the PCB disposal regulations promulgated under the authority of TSCA
section 6(e) and codified in 40 CFR part 761. On December 6, 1994 (59
FR 62788) (FRL-4167-1), EPA issued a Notice of Proposed Rulemaking
(NPRM) after considering comments and supporting data on the issues
outlined in the ANPR and other issues brought to EPA's attention during
the course of implementing the TSCA PCB program. After publication of
the NPRM, EPA conducted a series of briefings on the
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proposed amendments to better acquaint potential commenters with the
potential impacts so that they could better formulate their comments.
On June 6 and 7, 1995, EPA held a public hearing on the proposed
amendments. A transcript of that hearing is in the public record.
Almost all commenters supported the objectives EPA proposed for the PCB
program, but they also provided numerous comments on how to better
achieve those objectives.
EPA has prepared a Response to Comments document which addresses
comments not otherwise discussed in this preamble. You may review the
Response to Comments document in the TSCA Public Docket (OPPTS docket
control number 66009A), Rm. B607, Northeast Mall at the Environmental
Protection Agency, 401 M St., SW., Washington, DC.
B. Overview of Final Rule
This rulemaking promulgates significant amendments affecting the
use, manufacture, processing, distribution in commerce, and disposal of
PCBs.
These amendments add regulatory provisions authorizing certain uses
of PCBs; authorizing the manufacture, processing, and distribution in
commerce of PCBs for use in research and development activities;
specifying additional alternatives for the cleanup and disposal of
PCBs; and clarifying the processing for disposal exemption.
These amendments also add sections establishing standards and
procedures for disposing of PCB remediation waste and certain products
manufactured with PCBs; establishing procedures for determining PCB
concentration; establishing standards and procedures for
decontamination; establishing controls over the storage of PCBs for
reuse; and establishing a mechanism for coordinating TSCA disposal
approvals for the management of PCB wastes among various Federal
programs. These amendments also update several marking, recordkeeping,
and reporting requirements.
The regulatory requirements that apply to materials containing PCBs
depend in part on the PCB concentration. To ensure a consistent and
reproducible basis for determining PCB concentrations, Sec.
761.1(b)(4) provides that the concentration of non-liquid PCBs must be
determined on a dry weight basis; the concentration of liquid PCBs must
be determined on a wet weight basis; and the concentration of multi-
phasic (i.e., both non-liquid and liquid) PCBs must be determined by
separating the phases and analyzing each phase.
C. Statutory Authorities
This final rule is issued pursuant to sections 6(e)(1), 6(e)(2)(B),
6(e)(3)(B) and 18(b) of TSCA. Section 6(e)(1)(A) gives EPA the
authority to promulgate rules regarding the disposal of PCBs (15 U.S.C.
2605(e)(1)(A)). TSCA section 6(e)(1)(B) provides broad authority for
EPA to promulgate rules that would require PCBs to be marked with clear
and adequate warnings (15 U.S.C. 2605(e)(1)(B)). TSCA section
6(e)(2)(B) gives EPA the authority to authorize the use of PCBs in
other than a totally enclosed manner based on a finding of no
unreasonable risk of injury to health or the environment (15 U.S.C.
2605(e)(2)(B)). TSCA section 6(e)(3)(B) provides that any person may
petition EPA for an exemption from the prohibition on the manufacture,
processing, and distribution in commerce of PCBs (15 U.S.C.
2605(e)(3)(B)). EPA may grant an exemption based on findings that an
unreasonable risk of injury to health or the environment will not
result, and that the petitioner has made good faith efforts to develop
a substitute for PCBs.
D. Unreasonable Risk Standard
Under TSCA section 6(e), EPA makes decisions using the concept of
``unreasonable risk.'' In evaluating whether a risk is unreasonable,
EPA considers the probability that a regulatory action will harm health
or the environment, and the costs and benefits to society that are
likely to result from the action. 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. 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. Health effects. EPA has determined that PCBs are toxic and
persistent. PCBs can enter the body through the lungs, gastrointestinal
tract, and skin, can circulate throughout the body, and can be stored
in the fatty tissue. Available animal studies indicate an oncogenic
potential. EPA has also found that PCBs may cause reproductive effects
and developmental toxicity in humans. Chloracne may also occur in
humans exposed to PCBs.
b. Environmental effects. Certain PCB congeners are among the most
stable chemicals known, which 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. This ultimately results in
human exposure through consumption of PCB-containing food sources. 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 any eventual risk. EPA has quantified risks from
certain exposure scenarios (See for example, Refs. 1 and 2). For
example, assessments of the risks from exposure to PCBs in soil have
been used as the basis for several of today's regulatory actions.
2. Benefits of PCBs and the availability of substitutes. The
benefits to society of particular activities involving PCBs vary. PCBs
were used principally because they had excellent dielectric properties.
The dielectric properties were supplemented by thermal stability and
even the ability to retard burning, a considerable problem with the
most commonly used alternative dielectric fluid. For other uses,
thermal stability and flame retardancy were enhanced by resistance to
degradation by chemical oxidizers, acids and bases. Although it is
difficult to estimate the financial benefits from the reduction in
industrial fires from the use of PCBs, it is clear that there were far
fewer fires from the use of PCBs as alternatives to other commonly used
flammable and ignitable fluids. These benefits are especially
significant in uses where heat was generated or where a fire from
another source would be augmented and intensified by the presence of
flammable fluids. Unfortunately, the properties of thermal stability
and resistance to chemical degradation which made PCBs so useful
industrially, make PCBs a problem when they are released to the
environment, where they and their toxic effects persist for long
periods. The toxic effects of PCBs do not play a role in most uses
where there is little, if any, actual exposure. So long as the PCBs are
used inside containers and are not available for potential exposure or
release to the environment, the benefits from their continued use,
versus the cost to decontaminate or dispose of and replace them, can
outweigh the risks.
While some electrical equipment manufactured to contain PCBs prior
to 1978 is still in use, most of the equipment in use that contains
PCBs
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was manufactured to use another dielectric fluid, but was contaminated
with PCBs during manufacturing or servicing. In most cases, the PCB
concentration is low and the industrial properties of PCBs are for all
practical purposes no longer contributing to continued use of the
equipment. Similarly, because of their chemical inertness, the low
concentration PCBs do not interfere with or compromise the use of the
contaminated alternative dielectric fluids. Therefore, the benefits
from continued use of the contaminated equipment, as opposed to
decontamination or disposal and replacement, can continue to be
realized.
3. Costs. The reasonably ascertainable costs of this rulemaking are
discussed in detail in ``Cost Impacts of the Final Regulation Amending
the PCB Disposal Regulations at 40 CFR Part 761'' (Ref. 3).
Overall, this rulemaking is intended to protect against
unreasonable risks from PCBs by providing cost-effective and
environmentally protective disposal options that will reduce exposure
to PCBs by encouraging their removal from the environment, thereby
reducing the potential risk to human health and the environment from
PCBs. The rule also authorizes certain continued uses of PCBs and
materials contaminated with PCBs where exposure can be controlled and
where removal and disposal of the material would be costly or
impractical. More detailed analyses of unreasonable risk specific to
individual regulatory provisions are included throughout the preamble.
III. Issues Not Addressed by this Rulemaking
A. Preempting Other Requirements
Several commenters raised the issue of a general preemption under
TSCA of all other Federal, State, and local laws and regulations
concerning the management of PCB wastes. As stated in the NPRM
preamble, TSCA does not allow the Administrator to preempt State
disposal rules which describe the manner or method of disposal of a
chemical substance or mixture, or in this instance, the disposal of
PCBs (59 FR 62832). Moreover, EPA believes that such a preemptive rule
would not flow from any of the proposed changes and therefore is not
within the scope of this rulemaking.
B. Toxicity of PCBs
Several commenters argued that EPA should reassess the toxicity of
PCBs. In the NPRM, EPA indicated that it had undertaken a study of PCB
toxicity. This study, completed in September 1996, found PCBs to be
carcinogenic, but concluded that PCBs are not as potent as previously
determined (Ref. 4). In today's final rule, EPA has proceeded with the
TSCA PCB requirements based on the risk data relied on in the NPRM. The
Agency will consider additional revisions to these TSCA regulations in
the future to accommodate additional new information clarifying PCB
non-cancer effects and bioaccumulation factors, and to remain
consistent with regulations issued under other statutes, such as the
Clean Water Act (CWA), and with other EPA policies, such as those
governing response actions under the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA). EPA will follow
closely the public comment process on other rulemakings, and upon
completion of a balanced assessment of both the cancer and non-cancer
effects, will adjust its regulatory standards on PCBs as appropriate.
In adopting this policy position, EPA weighed the potential
benefits and costs associated with revising the final rule to reflect
the most recent PCB cancer potency information. Such a change at this
time would delay the issuance of the final rule and its anticipated
large cost savings, for likely only very marginal benefits.
C. Issues Deferred for Later Rulemaking
EPA today is not finalizing provisions regarding exports of PCBs
(see Unit IV.J. of this preamble), or use authorizations for non-liquid
PCBs. EPA intends to address these issues in future rulemakings.
In the NPRM, EPA solicited comments on the appropriate levels for
corrective action of PCB contamination under the Resource Conservation
and Recovery Act (RCRA) (59 FR 62794-95). EPA is not taking final
action on this part of the proposal today. Those comments will be
addressed by the Office of Solid Waste and Emergency Response (OSWER)
during the process for promulgating final RCRA corrective actions
regulations. (For more information, see 61 FR 19432, May 1, 1996.) The
Office of Pollution Prevention and Toxics will continue to work with
OSWER and other Offices in the Agency to coordinate programs concerning
PCBs.
In addition, EPA has issued in the Federal Register a Notice of
Intent to implement a Performance Based Measurement System (PBMS),
under which the regulated community would be able to select any
appropriate analytical test method for use in complying with EPA's
regulations (62 FR 52098, October 6, 1997) (FRL-5903-2). Implementation
of this program for a given rule requires that EPA propose changes and
seek public comment on them. EPA intends to propose such changes to the
TSCA PCB regulations in the future. The Agency defines PBMS as a set of
processes wherein the data quality needs, mandates, or limitations of a
program or project are specified, and serve as criteria for selecting
appropriate methods to meet those needs in a cost-effective manner.
Where PBMS is implemented, the regulated community would be able to
select any appropriate analytical test method for use in complying with
EPA's regulations. It is EPA's intent that implementation of PBMS have
the overall effect of improving data quality and encouraging
advancement of analytical technologies. The Agency anticipates
proposing amendments to certain of its regulations, as needed, to
incorporate PBMS into its regulatory programs. EPA intends to implement
PBMS on a program-specific basis. Each of EPA's programs is presently
developing a plan for implementation. EPA intends to provide ample
opportunity for the public to comment on specific aspects of PBMS
implementation.
Finally, EPA is deferring final regulatory action on proposed
Sec. 761.30(q) for future rulemaking. In the NPRM, EPA solicited
comments on authorizing the use of PCBs in existing applications that
had not been authorized by previous PCB rulemakings (59 FR 62809,
December 6, 1994). Although EPA received many comments supporting the
proposed authorizations, many commenters wanted EPA to drop many, if
not all, of the proposed conditions for the authorizations. EPA needed
additional time to review the recently submitted risk assessment
studies and also to obtain additional data for certain uses in order to
reduce the uncertainties associated with the available studies. EPA
therefore intends to publish a Supplemental Notice to solicit
additional data on the items that EPA proposed authorizing in the NPRM.
EPA is interested in any data that could be used by the Agency in its
review of the risks of exposure from PCBs that might be associated with
the existing applications of the PCB-containing items that were
identified in the NPRM. EPA is particularly interested in data relating
to the following items, when such items have been identified as
containing PCBs: certain paints, caulking, and coal-tar enamel coatings
used on steel water pipe and underground tanks. Due to the potential
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lag time that may be necessary to either develop or assemble these
data, a listing of the data elements that are required for this
analysis is provided below.
1. Wipe sample data for each of the products (or classes of
products, i.e., paint) for which uses would be authorized. These data
should be collected from products that are known to contain PCBs (i.e.,
based on bulk sample results or from historic knowledge). Also, the
detection limits for these materials should be sufficiently low to
ensure that risks can be calculated down to the 10<SUP>-6</SUP> range.
Estimates of the detection limits that would be required to estimate a
10<SUP>-6</SUP> risk level for the products for which exposure
scenarios have been developed by EPA can be found in Table 1 of the
document ``Support Document for the PCB Disposal Amendments, Final
Rule'' (Ref. 5). This document has been placed in the docket and is
available at EPA's web site under ``Laws and Regulations'' at the
Federal Register-Environmental Documents entry (http://www.epa.gov/
fedrgstr/).
2. Transfer data. Information on the transfer of PCBs to human skin
from the non-liquid PCBs listed in Table 1 of the support document. EPA
recognizes that these data may not be available. If such data are not
available, EPA requests suggestions regarding how to factor in a value
representing the likely transfer of PCBs to human skin.
3. Air monitoring data for each of the products (or classes of
products, i.e., paint) for which uses would be authorized. These data
should be collected from products that are known to contain PCBs (i.e.,
based on bulk sample results or from historic knowledge). Also, the
detection limits for these materials should be sufficiently low to
ensure that risks can be calculated down to the 10<SUP>-6</SUP> range.
See Table 1 of the support document for estimates of the detection
limits that would be required to estimate a 10<SUP>-6</SUP> risk level
for the products for which exposure scenarios have been developed by
EPA.
EPA is particularly interested in data that are representative of
the highest concentrations of PCBs in the product (or class of
products, i.e., paint). For example, commenters provided information
that paint formulations with 10 to 12% PCBs were recommended in the
commercial formulation manuals. Therefore, wipe sample and air
monitoring data for products such as paints should come from those
coatings with bulk sample levels of 10 to 12% PCBs. If only data from
coatings with bulk sample levels of less than 10 to 12% PCBs are
available, EPA would still be interested in receiving that data. In
addition to the collected data, EPA would like a copy of the sampling
plan that was used in collecting the data and a description of the
quality assurance/quality control procedures that were applied to the
data set.
The Supplemental Notice which EPA plans to publish later this year,
will provide specific information regarding the data request and the
date and location for data submissions.
IV. Notice of Final Rulemaking
A. General Requirements
1. Applicability of regulations The regulatory requirements that
apply to materials containing PCBs depend in part on the PCB
concentration. To identify what regulatory requirements apply to a
material that contains PCBs, a person has two options: either to
determine the PCB concentration and apply the regulations specified for
that concentration and type of material, or to assume the concentration
to be 500 parts per million (ppm) or greater. Under the second option,
it is not necessary to determine the PCB concentration of the material,
but the most restrictive regulatory requirements apply (see
Sec. 761.50(a)(5) in the regulatory text).
Where liquid samples cannot be collected, such as on contaminated
surfaces, surface sampling and concentration levels have been developed
(see part 761, subpart G, The PCB Spill Cleanup Policy), and are
included at Sec. 761.1(b)(3). The surface concentrations, which were
based on dermal exposure, are equated to the existing PCB regulations
which included economic considerations. For example, the regulations
established for PCBs at concentrations of 50 to less than 500 ppm apply
to contaminated surfaces at concentrations of greater than 10 to less
than 100 micrograms per 100 square centimeters (>10-<100 <greek-m>g/100
cm<SUP>2</SUP>). In addition, specific sections of today's rule codify
the relationship between surface contamination and the existing
regulations based on milligrams of PCBs per liter of liquid on a dry
weight basis.
a. Determination of PCB concentrations--wet weight/dry weight. The
Agency sought to ensure a consistent and reproducible basis for
determining PCB concentrations by specifying at Sec. 761.1(b)(4) how
the PCB levels were to be determined in liquids, non-liquids, or
mixtures of both. If the PCBs are ``non-liquid PCBs'' as defined in
Sec. 761.3, then a person must determine PCB concentrations using dry
weight (i.e., excluding the weight of water). If the PCBs are ``liquid
PCBs'' as defined in Sec. 761.3, then a person must determine PCB
concentrations using wet weight. If the PCBs are multi-phasic (i.e.,
both non-liquid and liquid PCBs), then a person must separate the
phases and perform the appropriate analysis on each phase. PCB
determinations must be made on a weight-per-weight basis (e.g.,
milligrams per kilogram), or, for liquids, on a weight-per-volume basis
(e.g., milligrams per liter) if the density of the liquid is also
reported (see Sec. 761.1(b)(2) in the regulatory text).
The Agency proposed the definition of ``non-liquid PCBs'' to mean
PCBs which contain no liquids which pass through the filter when using
the paint filter test method (EPA Method 9095 in ``Test Methods for
Evaluating Solid Waste'' (SW-846)) (Ref. 6). Commenters indicated that
if materials contain no visible liquids or contained no liquid phases,
they should not be required to perform the paint filter test. The
Agency has modified the definition to include visual inspection of the
materials to determine that they do not flow at room temperature (25
deg.C or 77 deg.F). For all other materials, such as sludges or
sediments potentially containing free liquids, EPA has retained a paint
filter test to determine the presence of free liquids.
The Agency proposed the definition of ``dry weight basis'' to mean
reporting chemical analysis results by excluding the weight of the
water in the sample. Commenters indicated that certain methods of
removing water could skew the analytical results. Since, in this
instance, the Agency wants to exclude the water weight, it amended the
definition of ``dry weight'' in the final rule to specify removing the
weight of the water. EPA also included examples for removing water from
a sample, such as air drying at ambient temperature, filtration,
decantation, or heating at a low temperature followed by cooling in the
presence of a desiccant. The Agency is not specifying which method to
use, only that the chosen method must be applicable to measuring PCBs
in the sample matrix at the concentration of concern and must be
reproducible.
The Agency proposed the definition of ``wet weight basis'' to mean
reporting chemical analysis results by including the weight of all
dissolved water in a homogenous liquid. A commenter believes that wet
weight should be the weight of the PCBs compared to the weight or the
volume of all liquids, excluding the weight or volume of non-liquid
materials that can be separated. Under the TSCA section 6(e) PCB
regulations, EPA has always used weight/weight for determining PCB
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concentrations. However, the Agency has amended the definition of ``wet
weight'' in the final rule to allow sample analytical results to be
reported on a weight per volume basis rather than a weight/weight
basis, if the density of the liquid is also reported.
For multi-phasic wastes, the disposal requirements are generally
based on the highest PCB concentration in any phase. For example, a
sample of sludge containing both non-liquid and liquid phases would
first need to be separated into its various phases. Then each phase
must be analyzed for PCB concentration. Assume that this separation and
analysis results in a non-liquid phase containing 600 ppm PCBs, an
aqueous liquid phase containing 100 <greek-m>g/L, and a non-aqueous
phase containing 60 ppm. At the time of disposal, the sludge may either
be separated into phases or disposed of without separation. If it is
disposed of without separation, it must be disposed of in accordance
with the requirements applicable to the phase with the highest
concentration, i.e., as non-liquid waste <gr-thn-eq>500 ppm PCBs. If
the waste is separated into phases, each phase may be disposed of
according to the disposal requirements applicable to that phase.
In general, the anti-dilution rule requires that even if the phases
were to be disposed of separately, all phases would have to be disposed
of based on the highest concentration in any phase in the sample, since
the phase contaminated at a lower level was in contact with a more
contaminated phase. However, in the PCB remediation waste (Sec. 761.61)
and decontamination (Sec. 761.79) provisions, EPA is allowing each
separated phase to be disposed of or decontaminated, respectively,
based on its own PCB concentration.
Some commenters anticipated that by requiring determining PCB
levels in various media or phases to be analyzed separately, EPA was
also requiring that the phases be separated for disposal. Commenters
consistently indicated that these additional analytical and disposal
requirements would be extremely burdensome, costly, and unnecessary.
EPA did not intend to require that multi-phasic waste be separated for
disposal. Multi-phasic waste samples must be separated for analysis
because the PCBs may have concentrated in one of the phases. Proper
separation allows the multi-phasic sample to be analyzed using
consistent and reproducible methods. The waste as a whole must be
disposed of based on the highest concentration in any phase, but need
not be separated into phases at the time of disposal.
b. Application of the anti-dilution provision. The ``anti-
dilution'' provision at 40 CFR 761.1(b)(5) prohibits a person from
avoiding specific PCB disposal requirements because a PCB concentration
was reduced or shifted from one material or environmental medium to
another by adding a diluent, or separating or concentrating the PCBs.
The Agency did not propose to modify this important provision, but
did receive comments on it. The Agency did not find them compelling,
and therefore, the anti-dilution provision remains in effect unchanged.
Any specific variances from the anti-dilution provision, such as for
certain PCB remediation waste, have been included in the appropriate
provisions of subpart D of part 761. EPA continues to be concerned
about intentional or fortuitous PCB dilution and remains committed to
stringent regulation of PCB waste disposal. In finalizing several
variances from the anti-dilution provision, EPA is simply recognizing
that where PCBs have already been released, the critical disposal issue
is to mitigate the damage from the release.
c. PCB concentration assumptions for use. EPA proposed to add
Sec. 761.1(g) to exempt oil-filled equipment manufactured after July 2,
1979, from the scope of the rule, provided that the equipment: (1) Had
a permanent label or mark affixed by the manufacturer indicating that
it contained no PCBs; or (2) had not been serviced with PCBs and was
accompanied by documentation from the manufacturer certifying that the
equipment contained no PCBs when manufactured.
EPA also proposed to amend the existing definition of ``PCB
Transformer'' at Sec. 761.3 to codify its policy (44 FR 31517, May 31,
1979) that certain transformers for which the PCB concentration has not
been established must be assumed to contain greater than 500 ppm PCBs.
EPA also requested information regarding numbers of small transformers
or other pieces of electrical equipment that contain PCBs (59 FR 62820,
December 6, 1994). Some examples are: potential transformers, current
transformers, instrument transformers, grounding transformers, voltage
transformers, and ignition transformers. These small transformers range
in size from several inches to several feet in height. They can be
filled with oil, epoxy, or tar-like potting compounds that contain
PCBs, or they can be ``dry.'' These small transformers generally do not
have nameplates and are not easily sampled. Unless the PCB
concentrations were established, these transformers would have to be
assumed to be PCB Transformers under the proposed revision to the
definition of that term.
Many commenters stated that the proposed amendment to the
definition of ``PCB Transformer'' would be burdensome and costly with
no apparent environmental benefit. They indicated that changing the
definition would capture many more transformers, i.e., those which had
not been tested or those with no information regarding the type of
dielectric fluid on their nameplate. Many of these newly captured
transformers probably were manufactured after July 1979, and their
nameplates might not indicate the type of dielectric fluid they
contain. Commenters suggested that instead of amending the definition,
EPA should require that these units be tested prior to disposal.
Commenters were also concerned that under the proposed PCB
Transformer definition, EPA would drop the generic exclusions from the
assumption requirement for transformers manufactured after 1979, since
transformer nameplates and other records on post-1979 transformers may
only indicate the type of dielectric fluid in the unit, and not the
absence of PCBs.
Commenters stated that defining ``PCB Transformer'' to include
small transformers was costly and burdensome because, like small
capacitors, they are hard to find, cannot be easily tested without
destroying their integrity, and generally do not contain information
regarding dielectric fluid.
Rather than finalizing proposed Sec. 761.1(g) and amending the PCB-
Transformer definition as proposed, EPA has created new Sec. 761.2, PCB
Concentration Assumptions for Use, to set forth the PCB concentration
assumptions for the use of transformers and other oil-filled electrical
equipment. Section 761.2 codifies EPA's policy (the assumption policy)
that the owner of mineral oil-filled electrical equipment, including
transformers, that was manufactured prior to July 2, 1979, and whose
PCB concentration has not been established, must assume that it is PCB-
Contaminated, i.e., contains 50 ppm or greater PCB, but less than 500
ppm PCB. If the date of manufacture is unknown but the dielectric fluid
is known to be mineral-oil, then the owner must assume the unit to be
PCB-Contaminated.
Commenters questioned the safety of sampling pole-top transformers,
and noted that the design specifications for these units, as well as
for pad-mounted transformers, called for mineral-oil fluid. In
addition, commenters pointed out and provided data to support the fact
that pad-mounted distribution
[[Page 35389]]
transformers rarely (typically less than 1% of the units sampled)
contained PCBs greater than or equal to 500 ppm. These comments are
consistent with EPA's experience that higher concentration, non-
mineral-oil PCB Transformers are generally located in secure indoor
locations and in indoor electrical substations and are not mounted on
utility poles or outdoor pads (47 FR 37342, August 25, 1982).
Therefore, pole-top and pad-mounted distribution transformers
manufactured before July 2, 1979, are assumed to be PCB-Contaminated
while in use unless the concentration has been established.
Section 761.2 also allows the owner or operator of oil-filled
electrical equipment, including transformers, that was manufactured
after July 2, 1979, and whose PCB concentration is not established, to
assume that it is non-PCB, i.e., containing less than 50 ppm PCB.
In addition, Sec. 761.2 provides that the owner or operator of a
transformer manufactured prior to July 2, 1979, and filled with a fluid
other than mineral oil, whose PCB concentration has not been
established, must assume that it is a PCB Transformer, i.e., containing
500 or greater ppm PCB, if it contains 1.36 kg (3 lbs) or more of
fluid. The assumption requirement does not apply to ``dry''
transformers, i.e., those containing no fluid. If the date of
manufacture is unknown and the type of dielectric fluid in the unit is
unknown, the unit must be assumed to be PCB (i.e., <gr-thn-eq>500 ppm).
Finally, Sec. 761.2 provides that transformers containing less than
1.36 kg of fluid, circuit breakers, reclosers, oil-filled cable, and
rectifiers whose PCB concentration has not been established may be
assumed to contain <50 ppm PCBs. EPA believes this policy as applied to
transformers containing less than 1.36 kg of fluid poses no
unreasonable risk of injury to health or the environment. Because of
the widespread and diverse nature of the use of these transformers, and
the small amount of PCBs contained within each one, all regulatory
approaches targeted at controlling releases from them are very
expensive compared to the potential quantity of PCBs kept from the
environment. Thus, EPA has not identified a reasonable cost-effective
regulatory alternative that would significantly reduce the risks from
the remaining PCB small transformers in service. Since these
transformers contain small quantities of dielectric fluid and many of
them are encapsulated, PCBs are rarely released from these transformers
during their use or from the equipment using the transformers.
Therefore, risks of exposure to humans, food, feed, water, or the
environment from their use is low. In conclusion, EPA finds that
allowing the continued use of small transformers containing PCBs is not
unreasonable because the risk of exposure is low and there appears to
be no practical, cost-effective risk reduction measures. They may,
therefore, if the concentration is unknown, be assumed to be non-PCB
while in use.
The assumption policies in Sec. 761.2 do not apply when electrical
equipment is being disposed of. At that time, the owner or operator of
PCB equipment must know its actual PCB concentration and use the proper
disposal method.
These modifications to the final rule should significantly reduce
the burden commenters identified in the proposal. Since the Agency has
revised the PCB Transformer definition to include only transformers
containing 1.36 kg or more of fluid, and has specified other PCB
concentration assumptions for use in Sec. 761.2, many tranformers that
would have been included under the proposed PCB Transformer definition
are not now included. For example, Sec. 761.2 eliminates the need to
test, while in use, any mineral oil-filled transformer manufactured
after July 2, 1979, that had no information on a permanent label or
mark and had not been serviced or tested previously. EPA also believes
that testing costs have decreased since 1979, so commenter's assertions
that the proposed changes will increase their costs are unlikely. In
addition, companies have stated that they frequently determine their
equipments' PCB concentration during routine servicing. Since the PCB
regulations have been in place since 1978, EPA assumes that the owners
and operators of most transformers have had them serviced at some point
and already know their concentration. Therefore, EPA believes that most
units' PCB concentration is known, and the assumption that they are
PCB-Contaminated need not apply.
Those persons wishing to establish the PCB concentration of a
transformer, rather than making an assumption in accordance with
today's rule, may do so. PCB concentration may be established: (1) By
testing the equipment; or (2) from a permanent label (i.e., a
nameplate), mark or other documentation from the manufacturer of the
equipment indicating its PCB concentration at the time of manufacture;
and service records or other documentation indicating the PCB
concentration of all fluids used in servicing the equipment since it
was first manufactured.
To assist owners or operators in identifying PCB Transformers by
their dielectric trade name or common name, EPA is restating a list of
names used by manufacturers for PCBs, previously published in a Federal
Register Notice (41 FR 14136, April 1, 1976, Appendix A): Aroclor,
Asbestol, Askarel, Chlorextol, Clophen, Diaclor, DK, Dykanol, Elemex,
Fenclor, Hyvol, Inerteen, Kennechlor, No-Flamol, Phenoclor, Pyralene,
Pyranol, Saf-T-Kuhl, and Santotherm. Additional common trade names for
PCBs were listed in EPA's 1994 PCB Q&A Manual: Arochlor B, ALC,
Apirolio, ASK, Adkarel, Capacitor 21, Chlorinol, Chlorphen, Chlorinol,
EEC-18, Eucarel, Inclor, Kenneclor, Magvar, MCS 1489, Nepolin,
Nonflammable Liquid, Pydraul, Pyroclor, and Santovac 1 and 2. The above
list is not all-inclusive.
To clarify what capacitors must be assumed to contain PCBs, EPA
proposed to amend the definition of ``capacitor'' in Sec. 761.3 by
inserting existing language on PCB concentration assumptions from the
disposal provisions. This was intended to make evident to readers that
the assumption provision on capacitors applies to all provisions, such
as marking, use, and recordkeeping requirements, and not just disposal.
Several commenters protested that EPA should not ``change'' its
``current'' assumption that capacitors of unknown concentration are
assumed to be PCB-Contaminated (contains 50 ppm or greater PCB, but
less than 500 ppm PCB). EPA wishes to clarify that the Agency has
always maintained that capacitors of unknown concentration must be
assumed to be PCB (500 ppm or greater). The current assumption
provisions for capacitors found at Sec. 761.60(b)(2)(i) date back to
the proposed PCB disposal and marking requirements rule of May 24, 1977
(42 FR 26564). As EPA noted on August 25, 1982, in the preamble to the
final rule on use in electrical equipment (47 FR 37342 at 37347),
``virtually all capacitors (large and small) manufactured prior to 1978
were filled with PCB fluid at a concentration near 100 percent.
Capacitors manufactured after 1978 did not use PCB dielectric fluid.''
Data was provided to EPA in support of the 1982 electrical use rule by
the Edison Electric Institute (EEI) and the Utilities Solid Waste
Activities Group (USWAG). This data indicated that of approximately 2.8
million large capacitors in the utilities industry, 100% contained PCBs
at concentrations of 500 ppm or greater (47 FR 17426; at 17428).
[[Page 35390]]
In today's final rule, language on assumption of capacitor
concentration is found at the new Sec. 761.2(a)(4), and the existing
definition of ``capacitor'' at Sec. 761.3 is being left unchanged. The
language in Sec. 761.2 has been modified from the proposed language to
make clear that capacitors manufactured after July 2, 1979, do not need
to be assumed to be PCB Capacitors, rather they are assumed to be non-
PCB because they were manufactured after the ban on manufacture and
processing of PCBs became effective. This includes most capacitors that
have been labeled by the manufacturer with the statement ``No PCBs'' in
accordance with existing Sec. 761.40(g). In addition, a definition of
``PCB Capacitor'' has been added to Sec. 761.3 to make clear that
references to PCB Capacitors in part 761 refer only to capacitors
containing 500 ppm PCBs or greater. Capacitors containing 50 ppm or
greater PCB, but less than 500 ppm PCB are PCB-Contaminated.
Where the concentration of equipment has not been established and
is therefore assumed based on the concentration assumptions in
Sec. 761.2, that concentration also determines the marking,
recordkeeping, monitoring, and other requirements applicable to the
equipment while it is in use. For example, a transformer that is
assumed to be a PCB Transformer under Sec. 761.2(a)(3) is subject to
the use conditions for PCB Transformers set out at Sec. 761.30(a).
d. Applicability based on PCB concentration. Almost every section
of the PCB regulations is based on numerical standards, usually
expressed as the weight of PCBs per weight of liquid or non-liquid
matrix, or as the weight of PCBs wiped off a given surface area. These
regulatory levels can differ depending on whether the rules are
addressing the manufacture, use, or disposal of PCBs. Commenters
requested clarification regarding the determination of weights of PCBs
in the regulations. In particular, the 45 kg threshold for
recordkeeping at Sec. 761.180(a) and marking at Sec. 761.40(b) were
cited. EPA is finalizing language in today's final rule at
Sec. 761.1(b)(6) to eliminate any confusion on the application of
weights or volumes cited in the rule. Unless otherwise noted in the
regulations, references to weights or volumes in part 761 apply to the
total weight or volume of the PCB containing material (oil, soil,
etc.), not the calculated weight or volume of only the PCB molecules
within that substance.
PCB wastes generally are regulated for disposal under TSCA at
concentrations of 50 ppm or greater. Certain exceptions exist, such as
the use of waste oil containing greater than 2 ppm and less than 50 ppm
PCBs for energy recovery. Wastes containing PCBs at 500 ppm PCBs or
greater may have other disposal requirements, such as destruction
through combustion or other approved technologies. Where a disposal
requirement is specified in the PCB rules, it cannot be avoided through
dilution (see Sec. 761.1(b)(5) of the regulatory text). Other Federal,
State, or local laws or regulations may impose additional, perhaps more
stringent, requirements on PCB disposal.
Once something is a PCB waste, contains PCBs, or is contaminated
with PCBs at regulated levels, cleanup or decontamination may be
desired or required. Today's regulations establish levels and
procedures for cleanup and decontamination. Anything decontaminated
under these paragraphs can be processed or distributed in commerce (see
Sec. 761.20(c)(5) of the regulatory text), reused (see Sec. 761.30(u)
of the regulatory text) or disposed of in accordance with part 761,
subpart D as applicable.
The self-implementing cleanup level (i.e., the ``walk-away'' level)
for soil in high occupancy (e.g., residential) areas is <ls-thn-eq>1
ppm, or <ls-thn-eq>10 ppm if the soil is capped (see
Sec. 761.61(a)(4)(i)(A) of the regulatory text). The cleanup level in
low occupancy (e.g., electrical substation) areas is <ls-thn-eq>25 ppm
to <ls-thn-eq>100 ppm, depending on site conditions (see
Sec. 761.61(a)(4)(i)(B)(1) of the regulatory text). The codified text
uses parts per million (ppm) for concentration measurement of non-
liquids as an equivalent to milligrams per kilogram (mg/kg).
Decontamination standards for surfaces are as follows: for non-
porous surfaces in contact with liquid PCBs destined for reuse,
<ls-thn-eq>10 micrograms PCBs per 100 square centimeters (<greek-m>g
PCBs/100 cm<SUP>2</SUP>) (see Sec. 761.79(b)(3)(i) of the regulatory
text); for non-porous surfaces in contact with liquid PCBs destined for
smelting, <ls-thn-eq>100 <greek-m>g PCBs/100 cm<SUP>2</SUP> (see
Sec. 761.79(b)(3)(ii) of the regulatory text); for non-porous surfaces
in contact with non-liquid PCBs destined for reuse, Visual standard No.
2, Near-White Blast Cleaned Surface Finish, of the National Association
of Corrosion Engineers (NACE) (see Sec. 761.79(b)(3)(i) of the
regulatory text); for non-porous surfaces in contact with non-liquid
PCBs destined for smelting, Visual standard No. 3, Commercial Blast
Cleaned Surface Finish, of NACE (see Sec. 761.79(b)(3)(ii); and for
fresh spills to concrete, <ls-thn-eq>10 <greek-m>g PCBs/100 cm<SUP>2</SUP>
(see Sec. 761.79(b)(4) of the regulatory text).
Decontamination standards for liquids are as follows: for water,
<ls-thn-eq>0.5 <greek-m>g PCBs/L (approximately 0.5 ppb) for
unrestricted use (see Sec. 761.79(b)(1)); and for organic and non-
aqueous inorganic liquids, <ls-thn-eq>2 mg PCBs/L (approximately 2 ppm)
(see Sec. 761.79(b)(2) of the regulatory text). The codified text uses
ppm or milligrams per liter (mg/L) for concentration measurements of
non-aqueous liquids and parts per billion (ppb) or micrograms per liter
(<greek-m>g/L) for concentrations of aqueous liquids.
The part 761 regulations do not address or preempt the regulation
of non-PCB components of a waste. If the PCB component of a waste is
approved for disposal at a facility, the approval for the disposal of
the other regulated waste components must be addressed by all other
applicable statutes or regulatory authorities. As an example, while
non-liquid PCB/radioactive waste less than 50 ppm PCBs that is not the
result of dilution is not regulated for disposal under TSCA, this waste
would need to be disposed of in accordance with all applicable
requirements for the management and disposal of the radioactive
component of the waste. Disposers should be advised that site-specific
permit or license conditions or local requirements may preclude such
disposal. Similarly, under Sec. 761.79(g)(2), hydrocarbon
decontamination liquids having PCB concentrations less than 50 ppm may
be burned and marketed in accordance with the requirements for used oil
in Sec. 761.20(e). Where such liquids had a radioactive component,
burning and marketing would have to be carried out in accordance with
all applicable Federal, State and local requirements for the management
and disposal of the radioactive component of the waste.
In general, PCBs are banned for use unless specifically authorized.
Authorizations may specify conditions for use such as marking,
labeling, or recordkeeping, and can establish the level of regulatory
control depending on such considerations as the type or location of use
or potential for exposure (see Sec. 761.30 of the regulatory text).
When a product is manufactured, the potential exists for it to be
contaminated with PCBs as a by-product during manufacture, through
contaminated feedstock, or through the addition of PCBs from another
source. As a result, the product assumes the same regulatory status as
the source (see Sec. 761.1(b)(5)). In general, minimum regulatory
levels for PCBs under section 6(e) of TSCA, including PCBs in
manufactured items or products, are the same as the minimum regulatory
levels listed above. When something is imported into the Customs
Territory of the United States for use, TSCA defines
[[Page 35391]]
that importation as manufacture (see TSCA section 3). All imports of
PCBs are banned absent a TSCA section 6(e)(3)(B) exemption, unless the
import satisfies the requirement at Sec. 761.20(b). See Unit IV.J. of
this preamble. The use of PCBs or ``disposal'' of PCB wastes in a
manufacturing process for a new product is not authorized.
2. Definitions--additions and modifications. This discussion is
limited to a few of the definitions included in Sec. 761.3. EPA also
has added definitions for acronyms frequently used in part 761 (e.g.,
ASTM, CERCLA, DOT, RCRA, TSCA and U.S. GOP). The remaining definitions
being incorporated at Sec. 761.3 in this rulemaking are discussed in
other sections of this preamble.
a. PCB-Contaminated Electrical Equipment. EPA proposed to clarify
the current definition of ``PCB-Contaminated Electrical Equipment''
(specifically as it relates to PCB-Contaminated Transformers at
Sec. 761.3), by incorporating the ``assumption rule'' which was
included in the PCB Ban rule preamble (44 FR 31517, May 31, 1979). This
change would have been effected by adding the following language to the
definition: ``a transformer is assumed to contain PCBs at 500 ppm or
greater, if it is an untested mineral oil transformer and reasons exist
to believe that the transformer was at any time serviced with fluid
containing PCBs at 500 ppm or greater.''
In today's final rule, EPA codified the assumptions for PCB-
Contaminated Electrical Equipment in new Sec. 761.2 rather than in the
definition of that term at Sec. 761.3. Section 761.2 provides that
mineral oil-filled electrical equipment (other than circuit breakers,
reclosers, oil-filled cable, and rectifiers) that was manufactured
before July 2, 1979, and whose PCB concentration is not established,
must be assumed to be PCB-Contaminated Electrical Equipment, i.e.,
containing 50 ppm or greater PCB, but less than 500 ppm PCB. PCB
concentration may be established either by testing the equipment; or by
a permanent mark or other documentation from the equipment's
manufacturer indicating its PCB concentration at the time of
manufacture, and service records or other documentation indicating the
PCB concentration of all fluids used in servicing the equipment since
it was manufactured.
The final rule also clarified that the definition includes
equipment with a surface concentration of greater than 10 <greek-m>g
PCBs/100 cm<SUP>2</SUP> to less than 100 <greek-m>g/100 cm<SUP>2</SUP>.
Many commenters expressed confusion over EPA's intent in adding surface
sampling to the definition of PCB-Contaminated Electrical Equipment.
EPA's intent is to provide a way to handle equipment in the absence of
liquids or when non-liquids were present. Surface sampling is not
required in addition to sampling that is conducted when liquids are
present.
b. Non-porous surface. EPA proposed to define ``non-porous
surface'' as ``a smooth, unpainted solid surface that limits
penetration of liquid PCBs beyond the immediate surface.''
Several commenters asked that concrete be included in the
definition of ``non-porous surface.'' Data were provided in a comment
to demonstrate that concrete was less porous than granite and marble.
However, the data clearly indicate that the porosity of concrete can
vary widely depending on its constituents and preparation. The PCB
remediation waste provision addresses existing concrete, where it is
doubtful that porosity testing or formulation details could be provided
to make a verifiable comparison to the natural stone materials.
Some concerns raised by commenters who sought relief for cleanup of
concrete are addressed in new Sec. 761.30(p), which allows continued
use of contaminated concrete under specified conditions. The
authorization, however, requires disposal of the concrete at the end of
its useful life, based on the bulk concentration of PCBs in the
concrete, and not on surface concentration.
EPA clarifies the distinction between porosity with respect to risk
for two different generic scenarios: (1) Materials used as a conduit to
divert, or as a barrier to prevent precipitation or its runoff, from
further transporting previously released PCBs; and (2) materials which
have been subjected over time to a continuous or single release of PCBs
which have not been contained or removed, but have been allowed to
migrate.
In the first scenario, a concrete cap can prevent migration of
water deposited on the surface. Such a cap diverts the water from
passing through the concrete, preventing PCB movement in PCB
remediation waste beneath the cap. In this sense the concrete is non-
porous to the water. Concrete also can be ``non-porous'' when used for
containment as a floor for a storage facility, because any release to
the upper surface of the floor would not be allowed to persist and
migrate but would be quickly cleaned up and/or recontained.
For the second scenario, concrete is porous to continued slow
releases of dielectric or hydraulic fluid. Historically, this kind of
release would not always have been controlled or cleaned up. Some of
these releases have penetrated over 30 centimeters of concrete and have
continued to migrate in soil under the concrete pad or floor for
several meters. Floors and pads for most of these situations were not
built to contain spills or prevent migration of fluids, but were
constructed for structural support, where porosity was not a
performance specification or requirement. When fluids have penetrated
concrete for a long period, surface cleaning is inappropriate to remove
PCBs that have migrated under the surface, and will most likely be
unsuccessful. However, surface sampling may help estimate the extent of
surface migration of an old or continuous release of PCB fluids onto
concrete.
c. PCB Capacitor. EPA added this definition to clarify that the
term PCB Capacitor in part 761 refers to capacitors containing 500 ppm
PCBs and greater (as opposed to 50 or greater ppm). Any capacitors
containing 50 ppm or greater PCB, but less than 500 ppm PCB are PCB-
Contaminated. EPA is retaining the existing definition of capacitor.
d. SW-846. EPA provided an abbreviated name for the series of
chemical procedures entitled ``SW-846, Test Methods for Evaluating
Solid Waste,'' often referenced in the regulation.
3. References. In the NPRM, EPA described the availability of test
standards developed by the American Society for Testing and Materials
(ASTM) which have been incorporated by reference in 40 CFR part 761.
Copies of the incorporated ASTM standards are available for inspection
at the Office of the Federal Register and the TSCA Nonconfidential
Information Center, or copies may be obtained directly from the ASTM in
Philadelphia, PA.
Commenters wanted EPA to include the full text of these
incorporated test methods in the regulations. The justifications for
this recommendation included simplicity (i.e., access to requirements
from a single source), costs of acquiring ASTM standards, and
burdensome paperwork and delays associated with requesting the
documents. EPA estimates that roughly 40 pages of text would be added
to the Code of Federal Regulations (CFR) if the referenced standards
were included in the PCB regulations text, at an annual estimated cost
to EPA of $2,500, compared to the individual investment by affected
entities of less than $300 for the 16 applicable standards. There are,
however, more compelling reasons for not including the text of these
standards in the regulations: (1) The
[[Page 35392]]
Administration's streamlining initiatives to reduce the number of pages
of regulatory text in the CFR, (2) copyright restrictions, and (3) the
availability of these documents through other sources. For these
reasons, EPA has promulgated Sec. 761.19 as proposed.
B. Manufacturing, Processing, Distribution in Commerce, and Use
1. Prohibitions and exceptions--a. Processing for disposal.
Existing Sec. 761.20(c)(2) states that PCBs ``may be processed . . . in
compliance with the requirements of this part for purposes of disposal
in accordance with the requirements of Sec. 761.60.'' Today's final
rule clarifies which processing for disposal requires an approval and
which does not. Processing for disposal must not result in dilution to
avoid disposal requirements.
The provisions at Sec. 761.20(c)(2) in today's rule essentially
addresses the following situations:
Processing for disposal activities which are primarily associated
with and facilitate storage or transportation for disposal are
disposal, but do not require a TSCA PCB disposal approval. Examples
include, but are not limited to: removing PCBs from service (e.g.,
draining liquids); pumping liquids out of temporary storage containers
or articles into drums or tank trucks for transportation to a storage
facility or disposal facility; dismantling or disassembling serviceable
equipment pieces and components; packaging or repackaging PCBs for
transportation for disposal; or combining materials from smaller
containers.
Processing for disposal activities which are primarily associated
with and facilitate treatment, as defined in 40 CFR 261.10, or land
disposal, require an approval unless they are part of an existing
approval or a self-implementing activity (such as activities allowed
under Sec. 761.61(a) and Sec. 761.79), or are otherwise specifically
allowed under part 761, subpart D. Examples include, but are not
limited to, microencapsulation; pulverization; particle size
separation; employing augers or hoppers to facilitate feeding non-
liquid PCBs into a disposal unit; directly piping liquid PCBs into a
disposal unit from PCB Items, storage containers or bulk transport
vehicles; and directly introducing non-liquid PCBs from containers,
bulk transport vehicles or on pallets into a disposal unit, such as an
incinerator, a high efficiency boiler, industrial furnace, alternate
destruction method, or chemical waste landfill.
Processing, diluting, or otherwise blending waste (prior to
introducing it into a disposal unit) for purposes of meeting a PCB
concentration limit in a disposal approval shall be done in accordance
with the approval, or shall comply with Sec. 761.79 or
Sec. 761.60(a)(2) or (3).
The rate of delivering liquids or non-liquids into a PCB disposal
unit shall be part of the conditions of the PCB disposal approval for
the unit when an approval is required.
Commenters sought to include various forms of processing for
disposal outside of a disposal approval because they felt that these
activities are common industrial waste management practices. EPA finds
that there are two kinds of processing for disposal activities which
potentially could change the disposal status of waste through
processing: (1) Dilution by blending down the PCB concentration of the
waste (any kind of processing which mixes waste with other waste or
non-waste lowers the concentration of the highest PCB concentration
waste component(s)); and (2) complete or partial separation, such as
particle size separation, of waste components. These kinds of
processing must be included in an approval to assure that all regulated
materials are disposed of in accordance with the disposal regulations.
b. Sewage sludge. Today's rule revises Sec. 761.20(a)(4) to
harmonize the TSCA regulations on use or disposal of sewage sludge
containing PCBs with similar regulations promulgated under the Clean
Water Act. For sewage sludge regulated under TSCA for use or disposal,
blending of the sewage sludge to avoid TSCA disposal requirements is
prohibited.
EPA also revised the definition of ``PCB remediation waste'' to
respond to comments that by including in that definition municipal
sewage treatment sludges at any concentration, EPA's proposal would
supersede CWA sewage sludge regulations. EPA did not intend to do so.
The definition of ``PCB remediation waste'' in the final rule excludes
sewage sludge at less than 50 ppm in use under Sec. 761.20(a)(4), and
includes ``PCB sewage sludge'' as defined at 40 CFR 503.9(w) containing
<gr-thn-eq>50 ppm PCBs. However, some use and disposal activities not
clearly covered by the CWA regulations are banned by TSCA even for
sewage sludge containing less than 50 ppm PCBs, for example the
intentional or accidental dilution of PCB wastes by mixing or blending
with sewage sludge. All sewage sludge containing <gr-thn-eq>50 ppm PCBs
still falls under the definition of PCB remediation waste.
2. Distribution in commerce after decontamination. EPA is
finalizing a conforming amendment to existing Sec. 761.20(c)(5), which
consolidates provisions proposed at Sec. 761.20(c)(5), (c)(6), and
(c)(7). The Agency is aware that during manufacture, use, and servicing
of PCBs, PCB Items and other goods, PCB contamination can occur. The
Agency believes that liquids and non-liquids may be used, distributed
in commerce, or disposed of after contaminating PCBs have been removed
or reduced in concentration as specified without posing an unreasonable
risk of injury to health or the environment.
In Sec. 761.20(c)(5) of the regulatory text, EPA is clarifying that
equipment, structures, or liquid or non-liquid materials that were
contaminated with PCBs <gr-thn-eq>50 ppm may be distributed in commerce
when certain conditions are met. These conditions include
decontamination in accordance with: (1) A TSCA PCB disposal approval;
(2) applicable decontamination standards and procedures under
Sec. 761.79; (3) applicable EPA PCB spill cleanup policies (e.g., TSCA,
CERCLA, regional) at the time of decontamination; or (4) if the
materials were not formerly decontaminated but now meet an applicable
decontamination standard in Sec. 761.79. Similar conditions for the use
or reuse of decontaminated materials are addressed in Sec. 761.30(u).
3. Authorizations--a. Registration requirements for PCB
Transformers. To qualify for the current use authorization, all PCB
Transformers were required to have been registered with local fire
response personnel by December 1, 1985 (see existing
Sec. 761.30(a)(1)(vi), the fires rule). In addition, when the
transformers are in use in or near commercial buildings, current
regulations require them to be registered with the building owners (see
existing Sec. 761.30(a)(1)(vii)). Owners of transformers at industrial
sites could fulfill the current requirement by registering with their
on-site fire brigade, while owners of PCB Transformers in or near
commercial buildings had to register with both the local fire
department and the building owner. PCB Transformers erroneously assumed
to have been contaminated at less than 500 ppm PCBs are required to be
registered within 30 days of discovery of the actual contamination
level (see existing Sec. 761.30(a)(1)(xv)(D)). If the transformer owner
could not demonstrate (e.g., by the production of the signed receipt
from a registered or certified letter used to register the transformer
with the fire response
[[Page 35393]]
personnel) that this registration had taken place, then that PCB
Transformer was not authorized for use under Sec. 761.30.
A review of the regulated community's compliance with these
registration requirements by the Office of the Inspector General of EPA
and EPA Regional personnel found that many fire departments, including
those serving large cities, had not received registration information
for a large percentage of those PCB Transformers which should have been
registered. In addition, many owners could not demonstrate that they
had registered their transformers as required in order to continue each
unit's authorization for use (Ref. 7).
Pursuant to section 18(b) of TSCA, the State of Connecticut
petitioned EPA for an exemption from the preemption provisions of
section 18(a)(2) to allow the State to require, among other things, the
registration of PCB Transformers (i.e., transformers with dielectric
fluid at <gr-thn-eq>500 ppm PCB) with the Connecticut Department of
Environmental Protection (Ref. 8). Connecticut argued that this
registration would provide a significantly higher degree of protection
for State residents and emergency response personnel from the risks
posed by PCB Transformers than the current Federal rules under TSCA
because: (1) State emergency response personnel need the information
because they often respond to fires and spills at sites throughout the
State, and (2) the State, if it had the information, could more quickly
issue warnings regarding fishing, swimming, or other activities that
could increase human exposure to PCBs when fires or spills occur.
While EPA sees merit in these arguments, EPA believes that
residents of every State would be better protected by a uniform,
nationwide registration requirement, in which EPA would receive the
data and make it available to Federal, State, and local emergency or
fire response personnel and to building owners.
Therefore, in response to the State of Connecticut's Petition and
the Inspector General's report documenting a lack of compliance with
the existing regulation, EPA proposed to amend Sec. 761.30(a)(1)(vii)
to require all owners of PCB Transformers to register their
transformers with EPA, no later than 90 days after the effective date
of the final rule. EPA proposed this as a one-time registration
requirement. However, under the proposed rule, owners of transformers
that were subsequently identified as PCB Transformers or received from
another location would have to register those transformers with EPA no
later than 30 days after they identified or received the transformer.
To minimize data gathering and processing, EPA proposed that
transformer owners would only have to report the following information
currently required under Sec. 761.180(a) to be included on their annual
document logs: (1) Transformer location (address) and number of PCB
Transformers, (2) the total weight in kilograms of PCBs contained in
the PCB Transformers, and (3) name, address, telephone number, and
signature of the owner, operator, or other authorized representative
certifying the accuracy of the information submitted. EPA proposed that
if a PCB Transformer is transferred to a different location after it is
registered, information concerning that transfer would be recorded in
the former owner's annual document log. EPA has authority to collect
registration information on transformers under section 8 of TSCA, 15
U.S.C. 2607.
Many commenters felt that instead of a new registration program,
EPA should enforce its existing requirements. Although EPA agrees that
effective enforcement of its regulations is important, EPA believes
that the national registration program provides benefits that merely
improving the enforcement of the existing fire rules cannot provide.
For example, collecting the information nationally, in one data base,
provides transformer location information to all emergency responders,
whether they are from the local volunteer fire department, from the
State (as Connecticut described in its petition), or from the Federal
government.
In addition, the new registration program is designed to cure
features of the existing rule that impede enforcement. For instance,
the existing rule does not require transformer owners to maintain
records documenting that they complied with the rule. An inspector who
is not sure, based on the evidence available at an inspection, whether
or not registration with the fire department occurred, must determine
which fire department is the primary responder for that facility and
impose on it to determine if registration, in fact, occurred. The new
rule requires the transformer owner to maintain, with the annual log,
proof that registration occurred. If that documentation is absent, not
only is there a violation, but the inspector will easily be able to
double check the national data base to determine if the registration in
fact occurred.
Some commenters asked whether they could comply with the national
transformer registration program by sending EPA a copy of the
information that they previously sent to the primary fire response
jurisdiction under the fires rule. EPA agrees that this is an
appropriate method of complying with the national transformer
registration program, as long as the submission contains all the
information required under the new regulations, and that information
has not changed since being submitted to the local fire department.
Information required by the new regulations, but not by the prior fires
rule, can be submitted to the Agency in a cover letter on company
stationery. See below for a further discussion of the format of the
required information.
Some commenters questioned how the Agency intended to manage the
data it received pursuant to the national transformer registration
program. The Agency intends to provide the information to state fire
bureaus and other umbrella organizations for further dissemination to
local fire departments. In addition, the Agency intends eventually to
make the information available in an electronic data base, probably on
EPA's World Wide Web Home Page. The Agency believes that the Internet
has become a valuable and reliable tool in disseminating information, a
situation that did not exist when the fires rule was originally
promulgated in 1985.
One commenter suggested that if the purpose of the registration is
the protection of emergency responders, such responders should be
trained to assume that all transformers contain PCBs and act
accordingly. EPA agrees that such training would be appropriate for all
emergency responders, and has anecdotal evidence that some receive such
training. However, EPA, in the absence of other evidence, cannot assume
that all local and state emergency response personnel that may respond
to a fire are so trained. Therefore, EPA believes that establishing a
national data base of PCB Transformers will serve to protect all
emergency responders, not just those trained to assume that all
transformers contain PCBs, from the dangers of PCBs in fires.
Several commenters suggested that there is no showing of risk to
justify the transformer registration program. EPA disagrees. EPA
determined, in 1985, that a risk to fire response personnel existed
such that the fires rule was necessary (50 FR 29170, 29174, July 17,
1985). The Agency has not received sufficient information to indicate
that such a risk has abated. Therefore, the Agency believes that it is
still necessary to have PCB Transformer location information available
to local fire response
[[Page 35394]]
personnel. As discussed above, EPA believes that a national
registration program will address this risk by making the information
available on demand to the local fire response personnel, and will
provide additional protection by making it available to others, such as
state emergency response personnel, that may respond to fires. In
addition, changes to the rule that will make it easier to enforce, such
as requiring that proof of registration be kept with the annual log,
should assist in abating the risk from fires involving PCBs by
increasing the rate of compliance, therefore providing emergency
response personnel with information about more PCB Transformers.
Several commenters also suggested that the creation of a new
registration requirement would be duplicative of the requirements in
place under section 312 of the Emergency Planning and Community Right-
to-Know Act (EPCRA), 42 U.S.C. 11001 to 11050, and at existing
Sec. 761.30(a)(1)(vi) and (a)(1)(vii). While EPA agrees that some
duplication may exist, the amount of duplication is not sufficient to
justify a decision not to finalize the transformer registration
requirement. Moreover, the EPCRA reporting requirements have quantity
or jurisdictional triggers that do not satisfy the information needed
for the PCB Transformer registration program. For example, EPCRA
section 304 requires that releases of certain chemicals be reported.
EPA believes that it is important that emergency response personnel
have information about the locations of PCB Transformers prior to
releases, so that they can plan, in advance, how to respond to such
releases. Sections 311 and 312 of EPCRA do require reporting, for
planning purposes, to various emergency response personnel for
hazardous chemicals that are present at the facility at 10,000 pounds
or greater, and for extremely hazardous substances at less than 500
pounds. EPA intends this registration requirement to apply to anyone
owning a PCB Transformer, as defined in the regulations, with no
provision to exempt those people whose PCB Transformers do not contain,
in total, 10,000 pounds or more of PCBs.
Since EPA proposed the transformer registration program in 1994,
PCBs have taken on increasing importance in international negotiations
regarding hazardous substances. For example, negotiations are ongoing
to develop a legally binding Protocol on Persistent Organic Pollutants
under the United Nations Economic Commission for Europe's Convention on
Long Range Transboundary Air Pollution. In those negotiations, several
European countries support a mandatory ban on PCB use to comply with a
European Community Directive banning PCB use by 2010. However, having a
national data base of the amounts of PCBs in transformers (the largest
single source of liquid PCBs) will allow EPA to evaluate more
accurately the impact of such proposals on the American economy.
EPA also requested comments on the State of Connecticut petition.
In the proposal, EPA indicated that if it did not promulgate a uniform
national registration requirement, then it would be inclined to
promulgate an exemption under section 18(b) to allow any State to
implement its own registration requirements for transformers.
Commenters overwhelmingly opposed a State registration program, citing
the requirement as redundant, burdensome, and a potential misuse of
preemption. EPA agrees with the commenters and is not adopting the
State registration requirement in this rulemaking.
Today, as a condition of the authorization for continued use, EPA
is finalizing a national registration requirement for PCB Transformers
at Sec. 761.30(a)(1)(vi). This new registration requirement extends to
PCB Transformers in use or in storage for reuse, even if a specific PCB
Transformer was registered under the old requirements at
Sec. 761.30(a)(1)(vi). However, a person who takes possession of a PCB-
Transformer after the deadline for the original registration has passed
does not need to register that transformer with the EPA. Any person
taking possession of a transferred PCB Transformer should assure that
it was registered under the requirement of Sec. 761.30(a)(1)(vi). PCB
Transformers that are not registered are not authorized for use and
must be disposed of.
In general, a person who assumes that a transformer is a PCB-
Contaminated Transformer, and then discovers that it is a PCB
Transformer, must register that transformer with the EPA within 30 days
of discovering that it is a PCB Transformer. However, this requirement
only applies if the transformer is located at an address where no other
PCB Transformers are located. If other PCB Transformers are located at
the same address, and those PCB Transformers are registered with EPA,
the owner of the newly-identified PCB Transformer is not required to
register that transformer with the EPA.
Under Sec. 761.30(a)(1)(vi)(D), the registration requirement will
be a part of the authorization for continued use for each PCB
Transformer. To remove duplicate reporting, EPA is also deleting the
existing requirements to register PCB Transformers with the fire
department. Since this registration will be sent to EPA Headquarters,
it enhances the current registration requirement by providing a central
point for information collection and dissemination. However, based on
comments requesting a longer period of time in which to register
transformers, EPA is extending the date to have PCB Transformers
registered from 90 days to 120 days from the effective date of today's
rule.
The information required for this registration now includes the
following: (1) Company name and address, (2) contact name and telephone
number, (3) location of transformer(s) (address, or for a mobile source
like a ship, the name of the ship), (4) number of PCB Transformers and
the total weight of the transformers in kilograms, (5) whether any
transformers at this location contain flammable dielectric fluid
(optional), and (6) signature of the owner, operator, or other
representative authorized to certify the accuracy of the information
submitted. EPA Form No. 7720-12, provided at Unit V. of this preamble,
has been submitted to OMB for review. Once OMB clears the form, it may
be used for the uniform submission of registration information, but its
use will be optional. In lieu of the form EPA will accept the
registration information on company stationery. Where a company has
multiple locations, EPA will accept one form or cover letter which
provides information pertaining to the company (including a point of
contact), followed by attachments that provide information (per
Sec. 761.30(a)(1)(vi)) specific to each location. Finally, anyone who
no longer possesses any PCB Transformers and would like to be removed
from the data base can notify EPA in writing. Notification to remove a
company or location from the data base is strictly voluntary.
b. Remove outdated material. EPA proposed to remove provisions of
40 CFR part 761 that have become outdated due to the passage of time.
All of the affected provisions were in subpart B (i.e., prohibitions
and authorizations). EPA received very few comments on its proposal; no
opposing comments were received regarding the proposed changes at
Sec. 761.30(b), (c), (d), and (e). EPA received a comment that
Sec. 761.30(g), which authorizes the use in other than a totally
enclosed manner of 50 ppm or greater PCBs in diarylide and
phthalocyanin pigments until January 1, 1982, is obsolete. This
provision further restricted the processing and distribution in
commerce of these pigments with PCB concentrations of 50 ppm or greater
after July 1, 1979, and
[[Page 35395]]
their limited manufacture after July 2, 1979, to those individuals who
are granted exemptions from EPA. EPA agrees with the commenter. The
manufacture, processing, and distribution of products containing
inadvertently generated PCBs at concentrations of less than 50 ppm are
currently regulated by provisions found at Secs. 761.1(f), 761.3,
761.185, 761.187, and 761.193. In today's final rule, EPA is deleting
the authorization currently found at Sec. 761.30(g) and is finalizing
the proposed revisions to the authorizations at Sec. 761.30(b), (c),
(d), (e), and (h).
One commenter identified a drafting error in Sec. 761.30(h)
regarding the use conditions for electromagnets, switches, and voltage
regulators which incorrectly directed individuals to inspection
requirements at Sec. 761.30(a)(1)(iii) and (a)(1)(iv). Since the use of
electromagnets at concentrations of 500 ppm or greater was prohibited
in areas which pose an exposure risk to food or feed after October 1,
1985, EPA is also deleting the visual inspection requirement currently
found at Sec. 761.30(h)(1)(ii). A revised (h)(1)(ii) has been included
(see the discussion on voltage regulators) which changes the incorrect
references to read ``Sec. 761.30(a)(1)(ix), (a)(1)(xiii), and
(a)(i)(xiv)'' where such an inspection is now required.
EPA also proposed to remove the Sec. 761.20(c)(3) provisions
requiring submission of a notice to EPA prior to exporting PCBs or PCB
Items for disposal. This proposal is not being finalized at this time.
As explained in Unit IV.J. of this preamble, EPA is deferring its
rulemaking on export until a later time.
c. Voltage regulators. Current Sec. 761.30(a)(1)(xv) requires
owners of mineral oil transformers that had been assumed to contain 50
ppm or greater PCB, but less than 500 ppm PCB, but are tested and found
to contain 500 ppm or greater PCBs, to bring those units into
compliance with part 761. EPA proposed the same requirements for
voltage regulators (see proposed Sec. 761.30(a)(1)(xvi)). Voltage
regulators which were marked or otherwise known to contain PCBs at 500
ppm or greater would also be required to come into compliance with part
761. Under existing rules, mineral oil-filled electrical equipment
(including voltage regulators) that was manufactured before July 2,
1979, and whose PCB concentration is not established is assumed to be
PCB-Contaminated Electrical Equipment (i.e., contains <gr-thn-eq>50 ppm
PCB, but <500 ppm PCB).
Due to the risks associated with higher concentration PCBs, the
final rule requires that voltage regulators that contain 3 pounds or
more of dielectric fluid containing 500 ppm or greater PCBs must be
properly marked while in service, their locations must be marked, fire-
related incidents must be reported, regular inspections must be
conducted, records must be kept pursuant to Sec. 761.180, and they must
be properly disposed of when they are taken out of service. These are
essentially the requirements that currently apply to PCB Transformers.
EPA believes the same requirements are appropriate for voltage
regulators containing <gr-thn-eq>500 ppm PCBs based on the similarity
between the functions of and risks posed by the two types of equipment.
Small voltage regulators (less than three pounds of PCB dielectric
fluid) are subject to the disposal provisions of Sec. 761.60, but not
the use provisions mentioned above.
EPA solicited comments on the appropriateness of requiring enhanced
electrical protection for voltage regulators as is the case for mineral
oil transformers known or found to contain greater than or equal to 500
ppm PCBs. Commenters indicated that enhanced electrical protection
cannot be installed on voltage regulators. Therefore, EPA will not
require this.
In addition, EPA solicited comments on whether voltage regulators
should be added to existing Sec. 761.30(a)(1)(xv) with transformers, or
placed in a separate paragraph. In response to comments, EPA added the
amendments to Sec. 761.30(h)(1), which currently addresses voltage
regulators.
EPA received suggestions that it should apply the voltage regulator
requirements to all mineral oil (assumed to be < 500 ppm PCBs)
electrical equipment found to be greater than or equal to 500 ppm. None
provided data, however, to indicate the types of unregulated electrical
equipment that may contain greater than or equal to 500 ppm PCBs. As
explained in the NPRM, EPA has data indicating that approximately 2% of
voltage regulators contain PCBs greater than or equal to 500 ppm. Due
to the lack of data on other mineral oil electrical equipment that may
contain PCBs greater than or equal to 500 ppm, EPA is not applying this
standard to other mineral oil filled electrical equipment.
Commenters also pointed out that many voltage regulators contain an
internal PCB-containing capacitor that may rupture or leak. They felt
that it was important to remove this capacitor if one was conducting a
retrofill prior to reclassification to avoid fluid leaking from the
capacitor and contaminating the replacement fluid. EPA agrees that this
is a prudent practice and highly recommends, although is not requiring,
that if such a capacitor is found in the voltage regulator, it be
removed and replaced with one that is non-PCB.
d. Natural gas pipeline systems. EPA has worked for several years
to address PCB contamination in natural gas pipelines and associated
equipment, such as air compressors. The reasons for the presence and
movement of PCBs in gas pipelines are not well understood, but it may
have occurred through use of PCB-containing lubricating oils in
compressors, fogging of pipeline systems with PCB-containing oil vapor,
and PCB migration from contaminated natural gas pipeline systems. PCBs
primarily move with the condensate liquids that form in the pipelines.
Some natural gas pipeline systems still contain PCBs in liquid
condensate despite repeated attempts to rid the systems of PCBs. (See,
for example, comments of Interstate Natural Gas Association of America,
May 1, 1995, C1-134).
In response to these contamination issues, EPA initiated a
compliance monitoring program for companies with >50 ppm PCBs in their
pipelines, where EPA presumed that any pipeline showing PCB
contamination >50 ppm was contaminated along its whole length. As a
result, EPA has used various administrative mechanisms to declassify or
decontaminate pipeline and pipeline system components.
In the NPRM, EPA proposed changes to the use authorization for
natural gas pipelines and related appurtenances which are contaminated
with 50 ppm or greater PCBs. EPA requested comment on additional
changes to Sec. 761.30(i) at the June 6-7, 1995 public hearing. EPA
proposed to define ``natural gas pipeline systems'' to include not only
natural gas pipe and appurtenances but also natural gas compressor
systems (see 59 FR 62855). EPA excluded air compressors and
appurtenances and proposed a separate definition for ``compressed air
systems.'' EPA proposed to expand the use authorization in
Sec. 761.30(i) to include natural gas pipeline systems contaminated
with 50 ppm or more PCBs, provided the owner or operator of the
pipeline notified EPA of the contamination, characterized its extent,
sampled and analyzed potential sources of contamination, took remedial
measures such as removing the contamination sources or reducing the PCB
concentration to <50 ppm, and documenting these actions. The proposed
regulations also gave EPA flexibility to adjust these requirements
based on the unique needs or history of particular pipeline systems and
past Federal, State or local regulatory
[[Page 35396]]
actions. EPA also proposed that PCB-Contaminated pipelines and
appurtenances which had been drained of all free-flowing liquids could
be reused in any natural gas pipeline system or distributed in commerce
for other specific uses (e.g., transport of bulk hydrocarbons,
chemicals, or petroleum products).
The natural gas pipeline industry strongly supported revising the
use and reuse authorizations while offering specific comments regarding
cost effective and flexible approaches to regulating their industry.
EPA has responded to as many of these concerns as possible while
ensuring that the natural gas pipeline industry continues to actively
reduce PCB concentrations below 50 ppm in natural gas pipeline systems.
Today's rule does not allow the introduction of PCBs into natural gas
pipeline systems; instead it authorizes the use and reuse of natural
gas pipeline systems that were contaminated with PCBs in the past,
provided certain actions are taken. Unless use of the system was
authorized, the system would have to cease operation until the PCBs
were removed, burdening the public by making fuel more costly or
unavailable. EPA believes this burden would outweigh the risk posed by
allowing continued use of the system, so long as the PCBs are contained
in the system, are regularly removed in the condensate, and, when
removed, are stored and disposed of in accordance with these
regulations.
Today's final rule broadens the proposed definition of ``natural
gas pipeline systems'' to include natural gas gathering facilities,
natural gas pipe and pipeline appurtenances, natural gas compressors,
and natural gas storage facilities. Both interstate and local
distribution natural gas pipeline systems are covered under today's
rule. Additionally, air compressors are not included as a part of
natural gas pipeline systems because their use is not unique to the
natural gas pipeline industry. Air compressor systems are now defined
separately in Sec. 761.3 and their use is authorized under specific
conditions in Sec. 761.30(t).
The use authorization promulgated today in Sec. 761.30(i) for
natural gas pipeline systems is modified slightly from the NPRM in
response to comments requesting more realistic time frames and
flexibility (e.g., allowing the use of historical data to satisfy
requirements for notification to EPA, sampling and analysis, or
decontamination). The rule now authorizes the continued use of PCBs in
natural gas pipeline systems at <50 ppm. The rule also authorizes the
continued use of PCBs at concentrations <gr-thn-eq>50 ppm in natural
gas pipeline systems not owned or operated by a seller or distributor
of natural gas; owners or operators of these systems have no
obligations under Sec. 761.30(i). For systems which are owned or
operated by a seller or distributor of natural gas, continued use is
authorized at concentrations <gr-thn-eq>50 ppm if steps are taken to
identify and reduce PCBs to <50 ppm in demonstrated sources of PCBs
within the natural gas pipeline system. EPA has also extended the time
frames under Sec. 761.30(i). With respect to the
Sec. 761.30(i)(1)(iii)(A)(2) sampling requirement, EPA agrees with a
commenter's suggestion that the 120-day period begin with the effective
date of today's rule where pipeline owners are aware of existing PCB
contamination.
Commenters noted that they could not be responsible for addressing
sources of PCB contamination which resulted from companies outside
their control. Any natural gas pipeline systems which do not include
potential sources of PCB contamination, such as scrubbers, compressors,
or filters containing PCB concentrations of 50 ppm or greater, are
generally exempt from the requirements for identifying, characterizing,
and reducing sources of PCBs, provided documentation regarding this is
maintained. For example, the owner/operator of a local natural gas
distribution system meeting these conditions would need to document
that the most likely source of PCB contamination was the natural gas
pipeline system that supplied their natural gas. However, any natural
gas pipe or liquids which are contaminated with PCBs are subject at
removal to the applicable disposal, decontamination, or reuse
provisions, to reduce the PCB contamination levels in the system. Some
commenters were concerned that natural gas end users, such as
homeowners and businesses, would be covered by the regulations. Because
end users are excluded from the definition of natural gas pipeline
system in Sec. 761.3, they are not subject to the requirements of
Sec. 761.30(i).
EPA is dropping the Sec. 761.45(a) marking requirement for natural
gas pipeline contaminated with PCBs at <50 ppm which was formerly
required at Sec. 761.30(i). Commenters stated that marking underground
pipe is unworkable and unnecessary for <50 ppm PCBs. EPA, however, is
requiring that aboveground pipeline system components containing PCB
liquids at <gr-thn-eq>50 ppm bear the M<INF>L</INF> Mark in accordance
with Sec. 761.45(a) because of potential exposure to PCB liquids. (See
Sec. 761.30(i)(1)(iii)(A)(6) of the regulatory text). Thus, the marking
requirements apply to equipment such as compressors, valves, drips or
other pipeline components that are aboveground, are used to contain or
collect PCB liquids, and where historical data or recent sampling data
indicate PCBs at <gr-thn-eq>50 ppm. EPA also solicited comments in the
NPRM on whether it should require marking of individual natural gas
pipe temporarily stored for testing prior to disposal (59 FR 62855).
Commenters opposed this as too burdensome and unnecessary when the
storage area is marked. EPA agrees and is not requiring marking of
individual pipe in temporary storage areas.
Today's rule incorporates proposed reuse options in certain low
exposure uses for PCB-Contaminated (50-<500 ppm) natural gas pipelines
that have been drained of all free-flowing liquids (see
Sec. 761.30(i)(2) and (i)(3)). The basis for these options was EPA's
risk assessment for natural gas pipe (Ref. 9). Some commenters
requested that EPA further expand the use authorization to allow
drained natural gas pipe to be melted or smelted for metal recovery.
They claimed that the proposal, which required PCB-Contaminated pipe to
be burned in industrial furnaces, was too restrictive (see proposed
Sec. 761.60(a)(4), finalized as Sec. 761.72). They stated that steel
melting furnaces would not accept natural gas pipe under these
conditions, thereby eliminating a cost-effective and safe reuse for
their pipe. EPA is addressing pipe smelting as disposal under
Sec. 761.72 (see Unit IV.E. of this preamble).
Commenters also requested use and reuse authorizations for
pipelines that were presumed to contain >500 ppm PCBs due to EPA's
assumption policy or historical sampling indicating such contamination.
Without this authorization, commenters were concerned that legitimate
reuses of contaminated natural gas pipeline and appurtenances within
existing pipeline systems or for other purposes would be precluded.
The final use and reuse authorization for PCBs in natural gas
pipeline systems envisions a declining PCB concentration over time to
below 50 ppm. Under the new Sec. 761.30(i)(4), EPA is allowing the
characterization of natural gas pipeline liquids, components, and
segments based on the actual PCB concentrations at removal, rather than
former presumptions or historical data. Liquids may be collected at
existing condensate collection points in the pipe or pipeline system.
The level of PCB contamination found at a collection point is assumed
[[Page 35397]]
to extend to the next collection point downstream.Natural gas pipe
appurtenances or components that do not contain free-flowing liquids
must be tested for surface level PCB concentrations using the standard
wipe test (see part 761, subpart M). If drained natural gas pipe or
appurtenances will be reused under Sec. 761.30(i)(2) or (i)(3), rather
than disposed of, testing is not required.
In a June 6, 1988, letter, EPA stated that it would presume that
natural gas pipelines in EPA's 1981 Compliance Monitoring Program were
contaminated at <gr-thn-eq>500 ppm PCBs due to the discovery of such
concentrations in components of the natural gas pipeline system or
because natural gas purchased from another system had shown
<gr-thn-eq>500 ppm PCBs (Ref. 10). Much progress has been made in
reducing PCB concentrations in natural gas pipelines under the
Compliance Monitoring Program. Thus, EPA is formally ending the Program
and releasing the affected natural gas pipeline companies from any
further obligations under it as of the effective date of today's rule.
Therefore, EPA's 500 ppm presumption policy for natural gas pipeline
systems no longer applies. EPA believes that the final rule adequately
addresses remaining actions necessary to further reduce PCB
concentrations in natural gas pipelines while providing regulatory
flexibility and reduced compliance costs.
One commenter asked EPA to clarify the relationship between the
proposed regulations and EPA Technical Guidance Documents (TGDs). The
commenter requested that EPA allow regulated entities the option of
using TGDs and ADPs to meet the proposed requirements (e.g.,
Secs. 761.30(i)(5) and 761.60), particularly with respect to using
existing PCB concentrations rather than presumed concentrations. The
three TGDs for declassification, abandonment, and classification of
stored pipe (Refs. 11, 12, and 13) were developed to implement EPA's
presumption policy of PCB contamination at <gr-thn-eq>500 ppm. As
discussed above, today's rule eliminates the presumption policy and
allows natural gas pipeline systems to be managed based on actual PCB
concentration. Therefore, today's regulations supersede these guidance
documents.
e. Research and development (R&D). In the NPRM, EPA addressed the
manufacture, use, processing, and distribution in commerce of PCBs and
PCB waste material as analytical reference standards for research and
development. EPA's objective in amending the Sec. 761.30(j) use
authorization was to clarify the types of activities covered by the R&D
provision. Also, EPA wanted to broaden the category of PCBs covered by
the authorization to facilitate real-world PCB cleanup activities
(e.g., to include analytical reference samples from PCB waste
materials, rather than limiting R&D activities to the use of less than
5 milliliters of hermetically sealed vials of PCBs). EPA clarified that
the kind of activities for which the use of PCBs or analytical
reference samples derived from PCB waste material is authorized
includes, but is not limited to, chemical analysis or analyses which
examine the concentration, physical properties, toxicity, environmental
fate, health effects, transport processes, and metabolic products of
PCBs.
Although the use of PCBs and PCBs in analytical reference samples
derived from waste material is authorized in conjunction with PCB
disposal-related activities, PCB disposal activities are governed by
the requirements at Sec. 761.60. Therefore, R&D into PCB disposal-
related activities using limited quantities of PCBs is addressed at
Sec. 761.60(j) and is treated differently from all other R&D uses of
PCBs when the intent is the development, assessment, and/or the
perfection of a disposal technology. When the intent of the activity is
an R&D study of PCBs, such as those activities listed above, it is an
authorized use under Sec. 761.30(j). When the intent of the activity is
to conduct a study using PCBs to develop or assess the efficiency of
PCB disposal technologies, it may qualify as a self-implementing R&D
activity for PCB disposal pursuant to Sec. 761.60(j).
Under Sec. 761.30(j), analytical reference samples derived from PCB
waste materials may be used if they have been obtained from an
authorized source (i.e., in accordance with Sec. 761.80(h) or (i)) and
are packaged pursuant to Hazardous Material Regulations at 49 CFR parts
171 through 180. All PCB wastes resulting from the use of these samples
during PCB R&D activities are required to be stored in compliance with
Sec. 761.65(b), must be manifested during transport to an approved
storage or disposal facility, and once the use of PCB waste samples is
complete, they must be disposed of in accordance with all applicable
Federal, State, and local laws and regulations, including 40 CFR part
761.
Commenters noted the confusion created by having two R&D
provisions, one relating to disposal (Sec. 761.60(j)), and one to other
R&D activities (Sec. 761.30(j)). TSCA recognizes various categories of
PCB activities: manufacture, processing, distribution in commerce, use,
disposal, and combinations of such activities. The regulations
generally adopt that structure, and the existence of two R&D provisions
is therefore not new. EPA's intent is not to integrate disposal and use
activities; to do so, would cause more confusion about the PCB R&D
disposal approval requirements.
Two examples raised by one commenter illustrate the scope of the
two R&D provisions. First, the analysis of PCB photochemical properties
is R&D, but also destroys PCBs. To determine the applicable PCB
provision, one should first assess the intent of the activity. Since
the stated objective is to analyze the photochemical properties of
PCBs, Sec. 761.30(j) applies. EPA recognizes that analytical procedures
may destroy PCBs, but that was not the objective in this example. Nor
was the objective to develop, evaluate, or refine a disposal
technology--activities requiring an R&D disposal approval under the
existing rules.
Second, PCB waste materials are used as quality assurance samples
to measure experimental error of analytical or scientific methods for
PCBs. The expansion of the R&D use authorization to include these media
is in response to the need to conduct PCB analyses on ``weathered''
PCBs such as those found at cleanup sites. These wastes can be used in
interlaboratory studies to determine the toxicity and potential effects
to health and the environment of PCBs that have bioaccumulated in the
environment over time. When the waste sample is used to develop,
evaluate, or refine a disposal activity, Sec. 761.60 applies (e.g.,
Sec. 761.60(j) for PCB R&D disposal activities using less than 1
kilogram of pure PCBs, or Sec. 761.60(i)(2) where otherwise
appropriate). Otherwise, use of the waste sample in analytical
procedures would be conducted pursuant to Sec. 761.30(j).
Another commenter suggested that EPA expand Sec. 761.30(j) to read:
PCBs may be used for R&D ``as samples of environmental media or
mixtures of PCBs and solid waste'' to ensure that mixtures of PCBs,
such as waste oil containing PCBs, could be used in R&D. Since the
comment was so general, EPA is uncertain as to whether the commenter is
concerned that they would be prevented from obtaining analyses of PCB
mixtures. If the commenter's concern is about acquiring laboratory
services to analyze samples of PCB mixtures, no further changes are
required since chemical analysis is an authorized use of PCBs under
Sec. 761.30(j). The fact that the PCBs are found in samples of waste
mixtures such as waste oil or solid waste does not preclude a
laboratory from analyzing
[[Page 35398]]
them. EPA has modified the authorization to include PCBs in analytical
reference samples derived from waste materials, if such samples are
processed and distributed in commerce by persons with a TSCA section
6(e)(3)(B) exemption (e.g., either an individual exemption or as a
member of the class exemption).
Commenters also confused the use authorization for PCBs and PCBs in
analytical reference samples derived from waste materials at
Sec. 761.30(j) with the class exemption for processors and distributors
of PCBs and analytical reference samples derived from PCB waste
material at Sec. 761.80(i). Section 761.30(j) authorizes the use of
these materials in research and development -- TSCA bans the use of
PCBs unless authorized by rule. Section 761.80(i) allows individuals
covered by the class exemption to gather and package (i.e., process)
PCBs and analytical reference samples derived from PCB waste material
for distribution in commerce. TSCA also bans processing and
distribution in commerce of PCBs, but provides the exemption process by
which EPA may allow such activities. Because TSCA provides different
mechanisms for allowing use of PCBs as distinct from processing and
distribution in commerce, these different activities are dealt with in
separate sections of the rule.
Additionally, commenters found confusing EPA's proposed limitation
of the PCB volumes used for R&D. EPA has concluded that limiting the
quantity of a facility's use of PCBs is not necessary since quantity
limitations have been established elsewhere in the regulations
contingent upon the activity being conducted (e.g., processing,
distribution in commerce, R&D for PCB disposal). However, EPA has
retained the definition for ``small quantities for research and
development'' since provisions previously established by EPA were based
on this narrowly crafted definition and contributed to EPA's
determination that the constraints were a sufficient precaution against
the risk of human or environmental exposure to PCBs.
Also, EPA would have required notification of the appropriate
Regional Administrator at least 30 days prior to the commencement of
any R&D activity authorized under Sec. 761.30(j). Commenters questioned
whether EPA really intended for laboratories to notify the Agency of
their R&D use activities. EPA agrees that the notification requirement
is confusing and unnecessary, and has removed it from the use
authorization at Sec. 761.30(j).
Commenters representing university laboratories interpreted the
scope of the PCB regulations to exclude educational institutions, such
as labs at universities, from compliance with the PCB regulations.
Commenters confessed confusion regarding EPA-approved activities and
viewed the proposed use authorization at Sec. 761.30(j) as being a
framework for current research activities that would enable them to be
in compliance with EPA rules. Unless specifically exempt, TSCA and its
implementing regulations apply to all ``persons'' as defined in the
regulations, which includes educational institutions (see Sec. 761.3).
Activities involving the use of PCBs are banned unless specifically
authorized by 40 CFR part 761. Individuals are encouraged, therefore,
to direct their inquiries to the Office of the Director, National
Program Chemicals Division (7404), Office of Pollution Prevention and
Toxics, 401 M St., SW., Washington, DC 20460, or their Regional PCB
Coordinator, if they are uncertain about whether an activity is
prohibited under TSCA and impacts their ability to engage in certain
PCB activities such as qualifying for an EPA grant.
f. Contaminated porous surfaces. In response to comments, EPA has
added a use authorization for contaminated porous surfaces contaminated
by spills of liquid PCBs, such as concrete, wood, and coated metal
surfaces. The authorization requires self-implementing controls to
reduce exposure to the spilled PCBs and to restrict further migration
of the PCBs from or within the porous material (see Sec. 761.30(p)).
Without this use authorization, these materials would have to be
removed and disposed of. EPA agrees with comments that the removal of
porous materials contaminated by spills of liquid PCBs is economically
burdensome and unnecessary where release of and exposure to the PCBs
can be controlled. EPA believes that the use conditions specified in
Sec. 761.30(p) will effectively prevent exposure to any residual PCBs
in the contaminated porous material and therefore continued use of this
material will not present an unreasonable risk. If a spill occurred on
concrete and the source seeped through the concrete and into the
underlying soil, the responsibility for addressing contamination to the
underlying soil remains, even though the concrete could possibly meet
the specified conditions.
g. Rectifiers. EPA is aware that a certain number of oil-filled and
solid-state rectifiers (devices that convert alternating current to
direct current) contain PCBs. Therefore, EPA proposed to authorize the
continued use, at Sec. 761.30(r), of PCBs at any concentration in
rectifiers, and PCBs at less than 50 ppm to be used in servicing
rectifiers for the remainder of their useful life.
EPA solicited comments and data on the following: (1) The number of
rectifiers currently in use, (2) the extent of PCB contamination in
rectifiers, (3) the size of such units and whether EPA should adopt a
de minimis PCB volume at or above which rectifiers would be regulated
under TSCA (e.g., in the same manners as capacitors with less than 1.36
kgs (3 pounds) of fluid are considered small and generally not
regulated under TSCA for disposal), (4) the number of oil-filled versus
solid state rectifiers, and (5) any information supporting a use
authorization for rectifiers.
EPA is finalizing Sec. 761.30(r) as proposed. Commenters indicated
that rectifiers were typically found with less than 50 ppm PCBs.
Therefore, due to their generally low concentration, EPA concludes that
continued use of rectifiers for the remainder of their useful lives
will not pose an unreasonable risk. Rectifiers are therefore authorized
for continued use as long as they are serviced only with less than 50
ppm PCBs.
h. Scientific instruments. EPA proposed, at Sec. 761.30(k), to
authorize the use of up to 100 milliliters of PCBs at any concentration
in scientific instruments, provided the PCBs were in use in the
instrument at the time the final rule became effective. In today's
final rule, EPA is dropping the ``in use'' provision based on comments
that not all instruments are continually in use. In addition, a
commenter was confused as to whether other currently authorized
existing uses of PCBs in electrical equipment or scientific instruments
not specifically mentioned in the authorization would now be
prohibited. To clarify, this authorization does not prohibit other
authorized uses of PCBs, such as in electrical transformers and
capacitors, in instruments used for scientific study.
Commenters stated that experiments could require up to 150
milliliters of PCBs. Commenters also stated that the possibility of
releases from scientific instruments is minimized because of OSHA's
Laboratory Standards at 29 CFR Sec. 1910.1450. Based on these comments,
EPA concludes that the use of PCBs in scientific instruments at greater
than 100 milliliters will not pose an unreasonable risk, the final rule
does not retain the 100 milliliter limit.
Finally, EPA combined the proposed authorization at Sec. 761.30(s)
and three existing use authorizations, Sec. 761.30(k),
[[Page 35399]]
Microscopy mounting medium; Sec. 761.30(n), Microscopy immersion oil;
and Sec. 761.30(o), Optical liquids, into a single authorization at
Sec. 761.30(k) entitled ``Use in scientific instruments.'' Each of the
four uses is included in the new combined authorization.
i. Air compressor systems. EPA proposed a use authorization and
decontamination standards for air compressor systems as part of the use
authorization for natural gas pipeline systems at Sec. 761.30(i). In
today's final rule, however, EPA has added a separate definition for
``air compressor systems'' at Sec. 761.3 and authorized the use of PCBs
in concentrations of <gr-thn-eq>50 ppm in air compressor systems under
specific conditions in Sec. 761.30(s) to allow a reasonable time frame
for removal and reduction of PCBs. The Agency made this change because
the use of air compressors is not unique to the natural gas pipeline
industry. Additionally, the decontamination requirements for air
compressor systems are now found in the decontamination section in
Sec. 761.79.
As with natural gas pipeline systems, EPA believes that allowing
continued use of the air compressor system while the PCBs are being
removed does not pose an unreasonable risk, so long as the PCBs are
contained in the system, are regularly removed in the condensate, and,
when removed, are stored and disposed of in accordance with these
regulations.
j. Other gas and liquid transmission systems. Commenters agreed
with EPA's proposal to authorize use of PCBs in natural gas pipeline
systems, but suggested that EPA expand the authorization to include
other types of transmission systems. EPA has less comprehensive data
regarding these other transmission systems, but the information
indicates that these systems would be smaller in size than most natural
gas pipeline systems. For this reason, and because of the wide variety
of these systems, such an authorization is generally best made on a
case-by-case basis. Therefore, under Sec. 761.30(t) in today's rule,
EPA is authorizing the use of PCBs at concentrations <gr-thn-eq>50 ppm
in other gas and liquid transmission systems which are owned or
operated by a seller or distributor only with the written approval of
the Director, National Program Chemicals Division. Owners or operators
of these systems must take steps to identify and reduce PCBs to <50 ppm
in demonstrated sources of PCBs within the pipeline system. This use
authorization provides a mechanism to address rare cases of PCB-
Contaminated gas or liquid systems which may not be authorized
elsewhere to ensure that these systems are identified and cleaned to
below 50 ppm PCBs. The rule also authorizes the continued use of PCBs
in pipeline systems at <50 ppm. In addition, the rule authorizes the
continued use of PCBs at concentrations <gr-thn-eq>50 ppm in pipeline
systems not owned or operated by a seller or distributor; owners or
operators of these systems have no obligations under Sec. 761.30(t).
k. Use/reuse of decontaminated materials. EPA clarifies in
Sec. 761.30(u) of today's rule that equipment, structures, or liquid or
non-liquid materials that were contaminated with PCBs <gr-thn-eq>50 ppm
may be used or reused once decontamination standards and applicable use
conditions set forth in Sec. 761.30(u) are met. However, these
materials may not be used or reused in direct contact with food, feed,
or drinking water unless otherwise allowed in part 761. This
restriction is designed to limit cross-contamination, thus reducing
risk from PCB ingestion (see Sec. 761.30(u)(2)). Water may, however, be
used or reused without restriction if it is below the decontamination
standard of 0.5 micrograms per liter in Sec. 761.79(b)(1). Water
containing PCBs at concentrations <200 <greek-m>g/L (approximately 200
ppb) may be used or reused in industrial processes where there is no
release from the process (e.g., as a non-contact cooling water).
Some commenters asked when equipment, structures, and other liquid
or non-liquid materials used intermittently in PCB decontamination,
cleanup, or servicing activities must be decontaminated. These items
include, but are not limited to: distillation columns; wastewater
treatment units; metal pans used to collect PCB liquids; and tools and
other equipment used in cleanup activities. While in use, equipment
such as that used in a wastewater treatment system (e.g., piping,
filter-cake presses, and precipitators) is operating as a PCB waste
management unit conducting decontamination activities as described in
Sec. 761.79 and as such does not need a TSCA PCB disposal approval. Any
wastes removed from the equipment, such as filter-cakes or distillation
bottoms, are subject to the PCB regulations based on the PCB
concentration at removal.
Inactive equipment contaminated with PCBs as a result of its use
during cleanup, decontamination, or servicing, but which will be reused
for the same activities, may be eligible for the provisions for storage
of PCB Articles designated for reuse in Sec. 761.35 (see Unit IV.C. of
this preamble). If the equipment will no longer be used, then it is
subject to the subpart D storage and disposal requirements. If the
equipment is inactive for less than 30 days, the temporary storage for
disposal provisions for PCB Items under existing Sec. 761.65(c)(1)
could be utilized; after 30 days, the 1-year storage for disposal
requirements in Sec. 761.65(b) apply. If the equipment is
decontaminated according to Secs. 761.79 and 761.20(c)(5), it is exempt
from further TSCA regulation.
C. Storage of PCB Articles Designated for Reuse
EPA proposed at Sec. 761.67 to limit storage for reuse of PCB
Articles in areas not designed, constructed, and operated in compliance
with Sec. 761.65(b) for a maximum of 3 years from the later of the date
a PCB Article was taken out of service or the effective date of today's
final rule. PCB Articles would have to be labeled when they were taken
out of service and placed into storage for reuse. In addition, the
storage for reuse of any PCB Article would have to comply with all
marking and recordkeeping requirements. Information required on the
labels for PCB Articles being stored for reuse would include the date
the equipment was placed into storage for reuse or the effective date
of the final rule, if the other date is not known; a projected location
for the equipment's future use; and the date the equipment was
scheduled for repair or servicing, if appropriate.
Commenters indicated that 3 years was not a sufficient time period
for storing articles for reuse. Some commenters indicated that storage
should be unlimited because of the 1- to 2-year lead time required for
manufacturers to supply new equipment. Also, for electrical utilities
or natural gas pipelines, commenters pointed to the urgency to maintain
service by having replacements for emergencies at hand. Therefore, the
Agency is extending the storage for reuse provision from 3 years to 5
years.
Commenters also disagreed with the storage for reuse labeling
requirement, or indicated that the labeling requirement was burdensome
and unnecessary because information EPA proposed to require on the
label was already maintained in the annual document log. Based on
comments received, EPA is not finalizing the proposed labeling
requirement. PCB Articles are already required to be labeled indicating
when they were placed in storage for disposal (Sec. 761.65(c)(8)).
Therefore, requiring PCB Articles being stored for reuse also to be
labeled could be confusing.
[[Page 35400]]
EPA is retaining at Sec. 761.35 the other proposed recordkeeping
requirements for PCB Articles being stored for reuse since much of this
information is normally maintained in the facility's annual document
log. The Agency believes that owners or operators with PCB Articles
being kept for reuse already maintain records indicating when articles
are removed for servicing or repair because of scheduling and budgeting
purposes.
Commenters also indicated that the proposed requirement that owners
or operators indicate the future use location of a PCB Article being
stored for reuse was burdensome and unnecessary. The Agency disagrees.
The knowledge on where an article was proposed for reuse distinguishes
the article from one being stored for resale or disposal. The latter
types of storage are prohibited unless appropriate regulatory controls
are followed. Therefore, EPA is requiring that the projected location
of the article to be included in the facility's annua ![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}