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 annual document log.
Electrical utilities and natural gas pipeline or transmission
companies commented that storing PCB Articles in an area which is
designed, constructed, and operated in compliance with Sec. 761.65(b)
could cause delays in repairing equipment and restoring service to
customers, without significantly reducing risk to health and the
environment. EPA understands that emergency situations may require that
certain PCB Articles be stored in close proximity to their potential
use locations and in this final rule allows such articles to be stored
for reuse in an area which was not designed, constructed, and operated
in compliance with Sec. 761.65(b) for no more than 5 years. PCB
Articles may be stored for reuse indefinitely in an area designed,
constructed, and operated in compliance with Sec. 761.65(b), or outside
such an area provided that the owner or operator has received written
approval from the EPA Regional Administrator for the Region in which
the article is stored.
D. Marking
EPA proposed several changes to the Sec. 761.40 marking
requirements, including changes to the marking of transport vehicles,
storage units, Large Low Voltage Capacitors in use, and equipment in
use containing PCB Transformers and PCB Large Capacitors. EPA also
proposed an associated clarification to the PCB concentration
assumptions for capacitors (see Unit IV.A.1.c. of this preamble).
1. Transport vehicles. Existing Sec. 761.40(b) and (e) require the
marking of transport vehicles carrying one or more PCB Transformers or
45 kg of liquid PCBs at concentrations of 50 ppm or greater. Existing
Sec. 761.40(b) and (e) essentially express the same requirements
regarding marking transport vehicles loaded with liquid PCBs at 50 ppm
or greater. EPA proposed to eliminate this duplication by combining
references to the marking requirement for transport vehicles at
Sec. 761.40(b) and (e) under proposed paragraph (d), thus leaving the
requirements for the remaining PCB Items under paragraph (e). EPA also
proposed to extend the marking requirement to transport vehicles
carrying 45 kg of PCBs (<gr-thn-eq>50 ppm) in any phase to make the
marking requirements for transport vehicles carrying non-liquid PCBs
consistent with those carrying liquid PCBs.
Commenters expressed general support for EPA's overall objective of
clarification and elimination of duplication. However, most commenters
opposed marking transport vehicles carrying non-liquid PCBs as
unnecessary and problematic. For instance, utilities would have to mark
service trucks because they occasionally transport one or more drums of
waste from a cleanup site. Some commenters requested that EPA rescind
the TSCA vehicle marking requirement altogether and defer to DOT
placarding standards for vehicle marking. Several commenters noted that
as drafted, the proposed rule would unintentionally be retroactively
effective.
In today's final rule, EPA is combining references to the marking
requirement for transport vehicles carrying liquid PCBs at existing
Sec. 761.40(b) and (e) under paragraph (b) (rather than paragraph (d)
as proposed) and leaving the requirements for the remaining PCB Items
under paragraph (e). This amendment does not result in any substantive
change to the existing provisions at Sec. 761.40.
The Agency is not finalizing the proposal to mark transport
vehicles containing non-liquid PCBs. This change would impose more
burdens on the regulated community than EPA envisioned, and is likely
to complicate, rather than simplify, compliance. EPA agrees that it is
not desirable to require utility service fleets to carry PCB labels on
a routine basis when they will only occasionally transport small
amounts of non-liquid PCBs. Regarding the comments recommending that
EPA eliminate all the existing requirements at Sec. 761.40 to mark
transport vehicles, EPA believes that such a change would be outside
the scope of this rulemaking, because EPA proposed to retain and
strengthen these requirements.
Also, a commenter expressed concern that forklifts used to move PCB
containers would require marking as transport vehicles. EPA clarifies
that forklifts used on site (e.g., not used on public roads) are not
considered transport vehicles and are not required to be marked as such
under Sec. 761.40(b).
Several commenters believe the 45 kg threshold for marking
transport vehicles is based on the mass of the actual PCB molecules in
the liquid. This has never been the case. Marking is triggered by 45 kg
total weight of the material containing 50 ppm or more of PCBs,
irrespective of the weight of the PCB molecules in that material, and
has been since promulgation of the Disposal and Marking rule (43 FR
7150, February 17, 1978). For instance, a single drum containing 45 kg
of mineral oil dielectric fluid at 50 ppm PCBs triggers the marking
provisions. The total material weight also applies to the 45 kg trigger
for recordkeeping provisions at existing Sec. 761.180(a). This issue is
clarified by new language at Sec. 761.1(b)(6).
2. Storage units. Existing Sec. 761.40(h) requires M<INF>L</INF>
marks on PCB Items and transport vehicles to be placed so that they can
be easily read. EPA proposed modifying Sec. 761.40(h) to require marks
on storage units. No significant comment was received on the proposal
and it is finalized as proposed.
3. Large Low Voltage Capacitors. In the NPRM, EPA noted that PCB
Large Low Voltage (LLV) Capacitors often are not identified and
disposed of properly at the time of removal, because they are not
required to bear the M<INF>L</INF> mark while in use. Accordingly, EPA
proposed to require the marking of those PCB LLV Capacitors still in
use, within 180 days of the effective date of the final rule.
Allowances identical to those at existing Sec. 761.40(c)(2) for PCB
Large High Voltage (LHV) Capacitors were made for PCB LLV Capacitors in
inaccessible locations.
EPA received several comments on the proposal. Some commenters felt
the rule was reasonable and sensible, others that it was burdensome and
that PCB LLV Capacitors in use posed little risk. Commenters expressed
concern about the number of capacitors that would require marking under
this rule, but provided no data or analysis to support contentions on
the proposal's burden or the risk associated with unmarked PCB LLV
Capacitors in use. One commenter noted that access to PCB LLV
Capacitors in some equipment would be difficult. More than one
commenter requested
[[Page 35401]]
that EPA allow records of unmarked PCB LLV Capacitors to be maintained
off-site.
EPA believes that it is important to revise the marking provisions
to include PCB LLV Capacitors in use. PCB LLV Capacitors in use were
exempted from marking with the M<INF>L</INF> in the original Disposal
and Marking rule (43 FR 7150), to reduce the burden associated with the
large numbers then in use. Instead, PCB LLV Capacitors were to be
marked upon removal from use, and new non-PCB LLV Capacitors were
required to be labeled ``No PCBs'' to distinguish them from unmarked
PCB LLV Capacitors in use. The Agency's regional staff have reported
observing over the last several years that PCB LLV Capacitors, being
unmarked, are often mistaken by uninformed personnel as non-PCB, and
disposed of improperly (rather than being identified as PCB, marked
with an M<INF>L</INF>, and disposed of as PCB waste). This problem will
only increase, as aging PCB LLV Capacitors approach the end of their
service life and are removed in increasing numbers. Industry
familiarity with the 1978 M<INF>L</INF> marking exception for PCB LLV
Capacitors is likely to decline in the future, increasing the number of
PCB LLV Capacitors misidentified for disposal. To complicate
identification, the requirement that new LLV Capacitors be labeled ``No
PCBs'' expires on July 1, 1998 (see existing Sec. 761.40(g)). Also,
although LLV Capacitors are less likely than LHV Capacitors to fail and
leak in service, the risk of PCB exposure posed by PCB LLV Capacitors
will increase as larger numbers of aging units fail in service.
Accordingly, EPA believes the marking of all PCB LLV Capacitors is now
necessary. The burden of this regulation will also be significantly
less than it would be if it had been imposed in 1978, in that the
number of PCB LLV Capacitors affected has greatly diminished through
attrition and phase-out efforts.
Therefore, in today's rule, EPA is finalizing Sec. 761.40(k)(1) to
require marking of PCB LLV Capacitors in use. PCB LLV Capacitors in use
in inaccessible locations inside equipment are exempt, provided that
the equipment is marked. Such capacitors must continue to be marked
individually at the time of removal from service. In regard to
protected locations (e.g., power poles, structures or fences) with
unmarked LLV Capacitors, EPA is not allowing the maintenance of records
at a central location. Repair or spill response personnel may not have
timely access to records maintained off-site at a central facility.
Also, the on-site record requirement is consistent with the existing
requirement for PCB LHV Capacitors at Sec. 761.40(c)(2)(ii). EPA wants
to emphasize that records are only required at a protected location if
the owner chooses to leave individual capacitors there unmarked.
4. PCB equipment in use. Because of identification and disposal
concerns, EPA is requiring that all equipment containing PCB
Transformers or PCB Large Capacitors (High or Low Voltage), including
equipment in use, be marked with the M<INF>L</INF> mark (see
Sec. 761.40(k)(2)). Existing Sec. 761.40(a)(4) only required equipment
containing PCB Transformers or PCB LHV Capacitors to be marked at the
time of manufacture, distribution, or removal from service. Today's
rule expands this provision to cover all equipment with PCB LLV
Capacitors, and equipment with PCB Transformers and PCB LHV Capacitors
not already marked (i.e., in-service equipment not manufactured or
distributed in commerce after the effective date of Sec. 761.40(a)(4)).
These marking provisions do not apply to equipment containing PCB-
Contaminated Electrical Equipment.
E. Disposal
1. Applicability. In the final rule, EPA has created a new
Sec. 761.50, titled Applicability of Storage and Disposal Provisions.
The purpose of Sec. 761.50 is to guide the public to the subpart D
provisions that apply to specific kinds of wastes and specific
activities. There are four items of note about Sec. 761.50. First, it
contains general prohibitions and conditions applicable to all of
subpart D. For example, EPA's policy that spills or other uncontrolled
discharges of PCBs at concentrations of 50 or greater ppm constitute
disposal, formerly at Sec. 761.60(d)(1), is now at Sec. 761.50(a)(4).
Second, Sec. 761.50 clarifies that Sec. 761.60 applies to PCB
liquids and PCB Items, and not to other PCB waste, such as PCB
remediation waste or PCB bulk product waste. Those wastes are now
regulated by new Secs. 761.61 and 761.62, respectively.
Third, EPA specifies the storage and disposal options for PCB/
radioactive waste at Sec. 761.50(b)(7). Any person storing PCB/
radioactive waste <gr-thn-eq>50 ppm PCBs must do so based on the PCB
concentration of the waste, except as provided in Secs. 761.65(a)(1),
761.65(b)(1)(ii), and 761.65(c)(6)(i) of this part. Any person
disposing of PCB/radioactive waste at <gr-thn-eq>50 ppm PCBs must do so
taking into account both the PCB concentration and the radioactive
properties of the waste. If, taking into account only the properties of
the PCBs in the waste (and not the radioactive properties of the
waste), the waste meets the requirements for disposal in a facility
permitted, licensed, or registered by a State as a municipal or non-
municipal non-hazardous waste landfill (e.g., PCB bulk product waste
under Sec. 761.62(b)(1)), then the person may dispose of the PCB/
radioactive waste, without regard to the PCB component of the waste, on
the basis of its radioactive properties in accordance with all
applicable requirements for the radioactive component of the waste.
Fourth, Sec. 761.50 clarifies the TSCA rules governing the
regulatory status and cleanup of PCB spills and disposal sites in light
of the ruling on the prefatory note exclusion to Sec. 761.60 by EPA's
Chief Judicial Officer in Re: Standard Scrap Metal Company, TSCA-V-C-
288, Appeal No. 87-4, August 2, 1990 (Standard Scrap). See 59 FR 62792,
December 6, 1994, for a discussion of that decision.
EPA proposed to delete the prefatory note, and substitute language
on the disposal of PCB waste generated before 1978 as introductory text
to Sec. 761.60. In the final rule, this language appears at
Sec. 761.50(b)(3). That section provides that sites where PCBs have
been placed in a land disposal facility (such as a dump, landfill,
waste pile, or land treatment unit), spilled, or otherwise released to
the environment prior to April 18, 1978, are presumed not to present an
unreasonable risk of injury to health or the environment from exposure
to PCBs at the site, and do not necessarily require further disposal
action. The final rule allows the EPA Regional Administrator, on a
case-by-case basis, to make a finding that spills, leaks, or other
uncontrolled discharges, such as leaching, from a pre-1978 disposal
site constitute ongoing disposal that presents an unreasonable risk of
exposure to PCBs. The EPA Regional Administrator may make this finding
regardless of whether the site is a spill, dump, land treatment unit,
waste pile, stream, river, pond, lake, any sediment (or dredge material
from a stream, river, pond, or lake), ground water, surface water,
landfill, or any other type of disposal site. Once the EPA Regional
Administrator makes such a finding, the owner or operator must dispose
of the wastes until the unreasonable risk no longer exists. EPA
believes that pre-1978 PCB disposal units or areas of contamination
should not be allowed to remain ``in-service'' and thus unaddressed, as
the existing prefatory note currently allows, if they pose an
unreasonable risk due to exposure to PCBs.
Commenters argued that TSCA's applicability is clearly prospective
and
[[Page 35402]]
that the proposed change inappropriately extends the reach of the TSCA
regulations to spills and disposals which occurred prior to the
effective date of the regulations. EPA's response is that section 6(e)
provided EPA with a broad mandate to protect health and the environment
from unreasonable risk of injury from PCBs. Just as EPA has banned or
restricted the manufacture, processing, distribution in commerce, and
use of PCBs where they pose an unreasonable risk of injury regardless
of when that activity started or that piece of equipment was first put
into service, EPA is now addressing PCBs disposed of in a manner which,
due to spills, leaks, or other uncontrolled discharges from the site,
constitutes ongoing improper disposal that now poses an unreasonable
risk of injury.
With regard to sites containing PCB remediation wastes generated on
or after April 18, 1978, owners or operators of those sites now have
two choices: they may clean up the wastes in accordance with new
Sec. 761.61, or, if applicable, they may cleanup the wastes in
accordance with EPA's Spill Cleanup Policy, part 761, subpart G.
Owners or generators of PCB remediation waste may unilaterally (for
example, to obtain insurance, to sell property or to reduce civil
liability) dispose of PCB remediation waste in accordance with self-
selected portions of Sec. 761.61, the Spill Cleanup Policy, or any
other procedures, but are not afforded any relief from any regulatory
liability from TSCA, based on that voluntary action alone.
2. Landfilling of liquid PCBs. In today's final rule EPA is
removing the provisions formerly at Sec. 761.60(a)(2)(ii) allowing the
disposal of PCB-Contaminated mineral oil dielectric fluid, which has
been stabilized on-site prior to disposal in accordance with
Sec. 761.75(b)(8), at a chemical waste landfill. However, the land
disposal of PCB-Contaminated liquids from incidental sources associated
with non-liquid PCB waste is allowed, if information is provided to or
obtained by the owner or operator of the chemical waste landfill that
shows that the waste does not exceed 500 ppm PCBs, is not an ignitable
waste, and disposal does not violate RCRA land disposal regulations
(see Sec. 761.60(a)(3)). This provision applies to PCB-Contaminated
liquids, which are in the form of precipitation, condensation, leachate
or load separation and are associated with PCB Articles or non-liquid
PCB wastes being disposed of in a chemical waste landfill. This
provision does not apply to bulk liquid wastes, which must be disposed
of in an incinerator or high efficiency boiler under Sec. 761.60(a)(1)
or (a)(2), or to liquid PCB remediation waste, such as stormwater
runoff from PCB bulk product waste. Disposal of liquid PCB remediation
waste is regulated at Sec. 761.61(a)(5)(iv), (b), or (c).
The provisions allowing landfilling of liquids at less than 500 ppm
were established May 31, 1979, when there was a limited number of
incinerators permitted to burn PCB waste and disposal capacity was a
concern. EPA believes the amount of low concentration PCB liquids
anticipated to be designated for disposal and in storage for disposal
can easily be accommodated by the existing and anticipated future PCB
disposal technologies other than landfilling (See discussion of
disposal capacity in the preamble to the Import for Disposal Rule (61
FR 11098, March 18, 1986).) EPA expects the existing PCB disposal and
storage for disposal regulations and the amendments finalized today to
accommodate the additional liquid PCBs requiring incineration or
alternative disposal treatment. In addition, today's rule makes EPA
policy on landfilling liquid PCBs more consistent with the prohibition
on landfilling of liquid hazardous waste containing PCBs at
concentrations of 50 ppm or greater under the RCRA land disposal
restrictions at 40 CFR 268.32(a)(2) and 268.42(a)(1).
In the NPRM, EPA proposed to eliminate the landfilling of all PCB-
Contaminated liquids, without exception. Approximately 10 comments were
received on this issue. Several commenters were concerned about the
implications of the ban on ``incidental'' or ``environmental'' liquids
associated with non-liquid wastes, which usually are of an aqueous
nature. Examples cited included precipitation, condensation, leachate,
and load separation. To address this problem, Sec. 761.60(a)(3) allows
the disposal of such incidental liquids.
3. Disposal in scrap metal recovery ovens and smelters. Under the
existing PCB disposal regulations (see existing Sec. 761.60(b)(5) and
(b)(6)), disposal of drained PCB-Contaminated Electrical Equipment and
other drained PCB Articles is not regulated. At the time of the NPRM, a
significant number of facilities were disposing of drained PCB-
Contaminated articles (including PCB-Contaminated Electrical Equipment
such as transformers) in scrap metal recovery ovens. These furnaces are
also commonly referred to as sweat furnaces, bakeout ovens, and wire
furnaces. However, some drained PCB-Contaminated articles have been
prepared for metal smelting under uncontrolled combustion conditions
such as open burning. Open burning can result in significant amounts of
products of incomplete combustion such as PCBs, polychlorinated
dibenzo-p-dioxins, and polychlorinated dibenzofurans (Ref. 14).
Therefore, EPA has prohibited open burning (see Sec. 761.50(a)(1)) and
in Sec. 761.72 has established scrap metal recovery ovens operating
conditions that control emissions and result in no unreasonable risk of
injury to health or the environment.
EPA has responded affirmatively to commenters who have provided
acceptable alternatives to EPA's proposal, which required direct
disposal of the drained PCB-Contaminated articles in a metal smelter.
The commenters' alternative includes primary and secondary combustion
chambers. In the primary combustion chamber, the articles are slowly
warmed to a temperature below the melting point of aluminum and kept at
that temperature for a number of hours, much longer than the time waste
is in the primary chamber of a PCB incinerator. Any PCBs present in the
drained PCB-Contaminated articles will vaporize or be destroyed at
these temperatures. The primary combustion chamber operates under a
slightly negative pressure (or draft) so that combustion gases do not
leak out but are passed into the secondary chamber. The secondary
combustion chamber operates at the same combustion conditions as a PCB
incinerator. In the secondary chamber any remaining PCBs and any
incomplete combustion products formed in the primary chamber are
destroyed. Both EPA's proposed method and the method proposed by the
commenters are included in the final rule.
Commenters did, however, express confusion over EPA's use of the
term ``industrial furnace,'' as the proposal's adoption of the RCRA
definition of that term at 40 CFR 260.10. In response to these
comments, EPA has deleted this definition in the final rule, and has
changed the terms in Sec. 761.72. That section now refers at
Sec. 761.72(a) to ``scrap metal recovery ovens'' and at Sec. 761.72(b)
to ``smelters.'' Operating parameters for each type of device are
specified. Any device that meets the operating parameters is authorized
for disposal of PCB wastes specified in Sec. 761.72 in accordance with
those parameters.
EPA finds there is no unreasonable risk of injury to health or the
environment from PCB, polychlorinated dibenzo-p-dioxin, and
polychlorinated dibenzofuran emissions from incineration of small
amounts of PCBs
[[Page 35403]]
in accordance with the requirements of Sec. 761.72. Very small amounts
of PCBs remain on drained surfaces of PCB-Contaminated equipment. This
is the result of the original concentration of less than 500 ppm PCBs
and the thinness of the dielectric fluid. The amount of PCBs present in
the primary chamber of an industrial furnace is much smaller than would
routinely be present in a PCB incinerator over the same time period.
The amount of PCBs present in the primary chamber is even smaller than
would be fed into most combustion facilities burning waste oil at less
than 50 ppm PCBs under Sec. 761.20(e), and the amount of PCBs in a
secondary chamber is smaller still. EPA has further provided for the
control of emissions by requiring scrap metal recovery ovens and
smelters to have a final permit under RCRA or be operating under a
valid State air emissions permit which includes a standard for PCBs
(see Sec. 761.72(c)).
In addition to intact drained PCB-Contaminated Electrical Equipment
and other intact drained PCB-Contaminated articles (such as hydraulic
equipment), scrap metal recovery ovens and smelters may be used to
dispose of metal surfaces which are included in PCB remediation wastes
and PCB bulk product waste. Metal in PCB remediation waste includes
scrap metal found in an industrial sludge lagoon or rinsed drums
formerly used to contain cleanup solvents. Metal in PCB bulk product
waste includes pieces from disassembled, drained PCB-Contaminated
transformers or metal surfaces coated with non-liquid PCBs such as
painted pieces of fuel tanks. Non-metal PCB remediation wastes such as
liquids, soils, sludges, and dredged sediments) and non-metal PCB bulk
product waste (such as shredder fluff and air handling system gaskets)
are not approved for disposal in scrap metal recovery ovens and
smelters. However, waste oils containing PCBs at concentrations less
than 50 ppm may be burned in scrap metal recovery ovens and smelters
which qualify under specified conditions (see Sec. 761.20(e)).
4. PCB articles--a. PCB-Contaminated Electrical Equipment. Drained
PCB-Contaminated Electrical Equipment is not regulated for disposal
under the existing PCB regulations at Sec. 761.60(b)(4). In
promulgating this provision, it was EPA's intent that disposal of this
equipment in an approved incinerator or chemical waste landfill is not
required. The equipment or its components would still have to be
disposed of in a way that ended its useful life, such as salvaging
through smelting when certain conditions are met (Ref. 15). EPA
solicited comments in the NPRM on whether it should amend the
regulations for the disposal of drained PCB-Contaminated Electrical
Equipment to ensure that the equipment is properly disposed of and is
not illegally reused. Possible remedies such as mandating
decontamination and stricter controls to ensure that units were
completely drained were not well received by commenters. In particular,
most commenters stated that anecdotal information that drained PCB-
Contaminated Electrical Equipment carcasses were used for barbecue
grills reflected isolated instances of non-compliance.
EPA proposed to modify Sec. 761.60(b)(4) to allow disposal of
drained PCB-Contaminated Electrical Equipment only in facilities
permitted, licensed, or registered by a State to manage municipal solid
waste (excluding thermal treatment units), in an industrial furnace, or
in a TSCA-approved disposal facility. EPA also proposed to amend
Sec. 761.60(b)(4) to require that equipment be drained for a period of
not less than 48 hours, so that as much liquid as possible was removed
from the equipment to further reduce PCB content prior to disposal.
Most commenters stated that defining a drain time added new burdens
without providing additional protection to health or the environment.
Instead, commenters felt that EPA should focus on the methods used to
remove oil from transformers, especially large transformers where the
actual draining procedure could be hazardous to personnel and the
equipment. Specifically, commenters suggested that EPA consider
pumping, vacuuming, and other methods as acceptable means for removing
oil from transformers. In support, commenters provided test data
indicating that 95 to 99% of the oil was removed from the transformer
in the first hour and any residual oil removed during a 48-hour period
would be extremely small. Because a small amount of residual oil still
remained after draining, some commenters suggested excluding the use of
State licensed municipal or industrial waste landfills as disposal
options for this equipment. They felt this would be a reasonable
exclusion because many State-permitted solid waste landfills do not
accept this equipment.
EPA is not finalizing the requirement that transformers be drained
for 48 hours. In addition, rather that requiring ``draining'' of PCB
liquids, amended Sec. 761.60(b)(4) allows PCB liquids to be ``removed''
(e.g., pumped or vacuumed). EPA realizes that liquid can be trapped in
the inner workings and as an additional measure, EPA suggests a second
removal action to ensure that as much liquid as possible is removed
from the unit. EPA emphasizes that any residual liquid that remains is
regulated and the receiving facility is responsible for its management.
EPA is not excluding the use of State licensed municipal or industrial
waste landfills as disposal options, because to do so would be counter
to EPA's goal of providing flexibility, and would reduce the number of
options available in areas where these landfills will accept this
equipment.
b. Small capacitors. Under current Sec. 761.60(b)(2)(ii), PCB small
capacitors may be disposed of as municipal solid waste. In the NPRM,
EPA sought data indicating whether there was support for statements by
TSCA section 21 petitioners (Ref. 16) that the disposal practices at a
municipal solid waste landfill, such as compaction, would cause PCB
small capacitors to leak and cause a risk to health and the environment
through ground water contamination. The Agency did not receive data
substantiating these statements. Therefore, EPA will not change the
disposal requirements for intact and non-leaking PCB small capacitors.
Except for capacitors owned by manufacturers of capacitors or
manufacturers of equipment containing PCB small capacitors, any
quantity of intact, non-leaking PCB small capacitors may be disposed of
in a municipal solid waste landfill. However, the Agency continues to
recommend that generators of large numbers of intact and non-leaking
PCB small capacitors dispose of them as PCB waste.
c. Fluorescent light ballasts containing PCBs. In the preamble to
the NPRM, the Agency requested comment on information submitted in a
TSCA section 21 petition (Ref. 16) that some fluorescent light ballasts
manufactured prior to 1978 have PCBs at concentrations of 50 ppm or
greater in their potting material. Potting material is insulating
material which fills the space between the functioning parts of the
ballast and its outer metal covering (shell). This information was
supported by test data showing that the asphalt potting material used
in fluorescent light ballasts has been found to contain PCBs (Refs. 17
and 18). Comments on the proposed rule confirmed that PCBs have been
found in the potting material of some fluorescent light ballasts. These
ballasts, therefore, are subject to a different disposal requirement
than a fluorescent light ballast containing PCBs only in a PCB small
capacitor. Where a fluorescent light ballast contains PCBs at 50 ppm or
greater, other than in an
[[Page 35404]]
intact and non-leaking PCB small capacitor, the PCB small capacitor is
no longer the controlling factor for disposal. Fluorescent light
ballasts containing PCBs in their potting material must be disposed of
in a TSCA-approved disposal facility, as bulk product waste under
Sec. 761.62, as household waste under Sec. 761.63 (where applicable),
or in accordance with the decontamination provisions of Sec. 761.79
(see Sec. 761.60(b)(6)(iii)).
Several commenters stated that the only way to determine whether
fluorescent light ballasts contained PCBs at concentrations of 50 ppm
or greater in their potting material would be to open, and essentially
destroy, the ballast to analyze the potting material. While this may be
true, the Agency is not requiring the testing of potting material for
those units in use. Owners or operators will not be required to remove
fluorescent light ballasts prior to the end of their useful life.
However, if owners or operators of buildings are thinking of changing
the fluorescent light ballasts, for example, for relamping the building
for energy conservation, and would like to know the applicable disposal
requirements, the Agency has two suggestions. First, assume that the
potting material in the fluorescent light ballasts contains PCBs at 50
ppm or greater and dispose of them as PCB waste. Second, conduct a
survey of the manufacturer and type of ballasts in use in the building
and develop a random sampling plan for each manufacturer and type of
ballast found and analyze the samples for PCBs. If no PCBs are found
and the PCB small capacitors are intact and non-leaking, then the
ballasts could be disposed of in a municipal solid waste landfill or
recycled, through decontamination at Sec. 761.79, for metals recovery.
While there is no regulatory requirement to test the potting material
for PCBs prior to disposal, TSCA requires owners or operators with PCBs
to dispose of them properly. Not all fluorescent light ballasts contain
PCBs. All ballasts manufactured between July 1978 and July 1998 are
required to bear a ``No PCB'' label indicating that they do not contain
PCBs. According to data submitted in the TSCA section 21 petition,
ballasts manufactured prior to July 1978 have a better than 50% chance
of containing PCBs at 50 ppm or greater in their potting material.
Finally, State and/or local governments may have additional, more
stringent, disposal requirements for PCB small capacitors or
fluorescent light ballasts containing PCBs and some municipal solid
waste landfills may not accept PCBs no matter what their form.
EPA has been aware for many years that fluorescent light ballasts
can contain PCB small capacitors. Under existing rules, intact and non-
leaking PCB small capacitors may be disposed of as municipal solid
waste (unless the disposer is a manufacturer of PCB capacitors or PCB
equipment) (see Sec. 761.60(b)(2)(ii)). The TSCA section 21 petition
alleged that disposal practices at municipal solid waste landfills can
cause PCB small capacitors to rupture, creating a risk of ground water
contamination. EPA asked for comment on this issue, and, in the event
that additional disposal controls were needed, proposed to limit to 25
per year the number of fluorescent light ballasts containing PCB small
capacitors that could be disposed of as municipal solid waste. EPA
received no data confirming that the risk described in the TSCA section
21 petition existed. EPA therefore is not finalizing this limitation.
However, disposers of fluorescent light ballasts that contain a PCB
small capacitor should be aware that they could be subject to CERCLA
liability if the municipal solid waste landfill becomes a Superfund
site.
d. Natural gas pipeline systems. For reasons that are not well-
understood, some natural gas pipeline systems have become contaminated
with PCBs at regulated levels (i.e., <gr-thn-eq>50 ppm PCB).
Contaminated systems have been operated under compliance agreements and
Sec. 761.60(e) alternate disposal approvals (Ref. 9). Today's rule
prescribes the conditions under which natural gas pipeline systems
containing PCBs are authorized for use and reuse (see Unit IV.B.3.d. of
this preamble and Sec. 761.30(i) of the regulatory text), and
requirements under which natural gas pipeline systems can be abandoned
in place or otherwise disposed of without posing an unreasonable risk
(see Sec. 761.60(b)(5)).
Those who hold alternate PCB disposal permits or approvals issued
under Sec. 761.60(e) may continue to use those approvals within the
confines of their specific conditions to dispose of natural gas
pipeline and appurtenances. A company may, however, request in writing
that EPA revoke its alternate disposal approval to allow the company to
comply with today's regulatory requirements in lieu of the conditions
specified in its disposal approval. EPA continues to reserve its right
to modify the conditions of the alternate disposal approval when, for
example, applicable regulatory requirements for disposal,
decontamination, or reuse are changed. Accordingly, EPA does not intend
to grant renewals for existing alternate disposal approvals in cases
where the final PCB regulations adequately address protection of human
health and the environment. These approvals have been issued based on a
no unreasonable risk finding. However, some specific conditions in
approvals are different from similar general conditions in the
rulemaking. These specific conditions are based on monitoring data
collected during disposal and other pipeline maintenance operations
conducted under the approval. This data may not be applicable to the
general population of natural gas pipeline systems.
Today's rule generally requires that all free-flowing liquids be
removed from natural gas pipe abandoned in place or removed for
disposal.
Most of the abandonment and disposal provisions for natural gas
pipeline systems apply where the systems contain PCBs at any
concentration <gr-thn-eq>50 ppm. There is one provision for abandonment
and one provision for removal with subsequent action that apply to PCB-
Contaminated systems (i.e., <gr-thn-eq>50 and <500 ppm PCBs). Any
person disposing of a natural gas pipeline system under either of these
provisions (paragraphs (b)(5)(i)(B) or (b)(5)(ii)(A)(1)) must
characterize it for PCB contamination by analyzing organic liquids
collected at existing condensate collection points in the natural gas
pipeline system. The level of PCB contamination found at a collection
point is assumed to extend to the next collection point downstream,
i.e., the next existing condensate collection point unless pipeline
maintenance or other activity results in a closer sampling location. If
no organic liquids are present, drain free-flowing liquids and collect
standard wipe samples according to subpart M. Collect condensate within
72 hours of the final transmission of natural gas through the part of
the system to be abandoned and wipe samples after the last transmission
of gas through the pipe or during removal from the location it was used
to transport natural gas. PCB concentration of the organic phase of
multi-phasic liquids must be determined in accordance with
Sec. 761.1(b)(4).
Pipeline liquids containing <gr-thn-eq>50 ppm PCBs removed from the
system must be disposed of as PCB remediation waste in accordance with
Sec. 761.61(a)(5)(iv), based on the PCB concentration present at the
time liquid is removed from the pipeline. This does not mean that non-
pipeline liquids or non-liquids may be added to the pipeline liquids
either prior to or during removal to result in dilution of the
concentration of the liquids. Liquids containing <50 ppm PCBs may be
burned for energy recovery in accordance with the provisions
[[Page 35405]]
pertaining to used oil at Sec. 761.20(e). Commenters questioned the
need to separate organic and aqueous phases of condensate for disposal.
It is not complicated or expensive to separate the organic phase of
condensate from the aqueous phase. Separation is not needed if all of
the multi-phasic liquid is disposed of as determined by a concentration
of <gr-thn-eq>50 ppm in the organic phase.
i. Abandonment. The final rule specifies how natural gas pipeline
systems containing <gr-thn-eq>50 ppm PCBs may be abandoned in place
when no longer in use. Requirements differ depending on the PCB
concentration in the system and the diameter of the pipe. The few
changes made from the NPRM are to clarify language and expand the
options available.
ii. Removal with subsequent action. The final rule also specifies
the requirements for natural gas pipeline systems containing
<gr-thn-eq>50 ppm PCBs that are removed for disposal. Depending on the
PCB concentration in the system and the diameter of the pipe, natural
gas pipe may be disposed of in a municipal solid waste landfill, a
TSCA-approved incinerator or chemical waste landfill, as PCB bulk
product waste, or may be decontaminated.
EPA received comments that the interior of natural gas pipe is
covered with a thin, porous coating to inhibit corrosion and thus could
not be decontaminated under Sec. 761.79. That section provides methods
for decontamination of non-porous, but not porous, surfaces. EPA has
amended the definition of non-porous surface at Sec. 761.3 to clarify
that this coated natural gas pipe is considered a non-porous surface
(see Sec. 761.60(b)(5)(ii)).
Commenters asked whether dry pipe could be smelted in a steel
melting furnace, and whether such smelting would be regulated as use,
reuse or disposal. As provided in Sec. 761.79(b)(3)(ii), non-porous
surfaces, such as natural gas pipe, contaminated at less than 100
<greek-m>g/100 cm<SUP>2</SUP>, may be smelted in an industrial furnace
operating in accordance with Sec. 761.72(b). Metal smelting of the
residual surface PCBs is PCB disposal even though the smelted metal may
be used or reused.
iii. Sampling (subpart M). EPA clarifies that the regulatory status
of natural gas pipe is based on the PCB concentration in free-flowing
condensate liquids in the pipe. If no free-flowing liquids exist in the
pipe at the time of sampling, surface sampling is required.
EPA made several changes to the sampling protocol in response to
comments. First, although the EPA Regional Administrator may approve of
smaller sampling surface areas on a case-by-case basis, EPA believes
that 100 cm<SUP>2</SUP> is available for sampling in most natural gas
pipeline situations. Second, EPA revised the sample site location
procedure to account for the potential loss of surface residues of PCBs
from the thermal cutting of pipe. Third, with respect to the sampling
location in a pipe segment that has been removed for disposal, only one
sample from one end of a pipe segment is now required rather than a
sample at each end of the pipe segment. EPA does not expect
concentration differences at the downstream end of a pipe segment and
the upstream end of the adjacent downstream pipe segment to be
significantly different. Fourth, EPA has provided two options for
selecting the sampling site among a contiguous set of pipe segments
less than 7 miles long.
For sampling pipe to be abandoned in place, EPA is requiring
sampling at the ends of the section to be abandoned and is designating
the sampling unit to be between the pressure side of a compressor
station and the suction side of the next compressor station downstream
of the gas flow. EPA has also revised and clarified language on
extrapolating the PCB disposal regulatory status of an unsampled pipe
segment that is part of a population that has been sampled for removal,
disposal, or abandonment. In addition, EPA clarified the regulatory
status of pipe with respect to surface concentrations measured in the
characterization samples.
EPA derived the sampling protocol (part 761, subpart M) from its
oversight of natural gas pipe removal by parties to the 1981 compliance
agreement with EPA. The sampling procedure accounts for the
distribution of condensate through the pipeline system over time by the
flow of natural gas and for pipeline system management practices.
e. Dermal protection. EPA proposed, at Secs. 761.60(b)(6)(iii) and
761.79(a)(5), to require that anyone coming in contact with surfaces
contaminated with PCBs at levels of 10 to <100 <greek-m>g PCB/100
cm<SUP>2</SUP> must be protected from dermal exposure to those surfaces
(59 FR 62860). EPA removed the concentration range because it intended
to prevent dermal contact, not require measurements. Most disposal
operations managing this waste would require dermal protection for
handling sharp-edged metal material whether there were residual PCBs on
the surfaces or not. The final rule at Secs. 761.60(b)(6)(iv) and
761.79(e)(2) requires workers to wear or use protective clothing or
equipment to protect against dermal contact or inhalation of PCBs or
materials containing PCBs.
5. Alternate disposal. Section 761.60(e) allows persons who are
required to incinerate PCBs and PCB Items and who can demonstrate that
an alternate destruction method that can achieve a level of performance
equivalent to Sec. 761.70 incinerators exists, may submit a written
request to the EPA for an exemption from the incineration requirements
of Sec. 761.60 or Sec. 761.70. EPA did not intend that the submission
of this application be optional, as could be construed by the word
``may'' in Sec. 761.60(e). EPA, therefore, proposed to amend
Sec. 761.60(e) to clarify that written approval to use an alternate
method of destroying PCBs or PCB Items must be obtained from EPA prior
to using the method to destroy PCB waste. EPA received no negative
comments on this proposed wording change and it is finalized as
proposed.
6. Analytical procedures. In the NPRM, EPA proposed to require that
chemical analysis of PCBs be conducted using gas chromatography. The
proposal did not require the use of a specific gas chromatographic
procedure since the selection of an analytical method would vary
according to the material being tested (see 59 FR 62861). EPA also
solicited comments on whether ASTM Method D-4059, ``Standard Method for
Analysis of Polychlorinated Biphenyls in Insulating Liquids by Gas
Chromatography'' should be listed at Sec. 761.60(g)(1)(iii) and
(g)(2)(iii) as an acceptable analytical method (see 59 FR 62826).
Two commenters suggested EPA identify specific sample preparation
and gas chromatographic analytical techniques for specific uses and
materials. Although EPA recognizes variability can exist when different
testing methods and procedures are used to analyze PCBs, EPA has
determined that the statutory requirement to consider the costs and
benefits associated with establishing regulatory requirements argues
for increased flexibility at the expense of precision. As a result,
Sec. 761.60(g)(1)(iii) and (g)(2)(iii) offer the maximum flexibility
for individuals to use gas chromatographic procedures that are
available through both EPA published methods and ASTM testing methods.
However, in the final rule, EPA is clarifying that the methods other
than those specified in the regulations must produce results that
obtain a level of performance equal to or better than the specified
methods. If analytical differences arise, the Agency will use
[[Page 35406]]
those methods outlined in SW-846, Test Methods for Evaluating Solid
Waste, to verify analytical determinations.
EPA received one comment that the applicability of ASTM D-4059 was
very limited and restrictive. Although ASTM D-4059 may be limited, some
individuals may deal with only a narrow assortment of dielectric
fluids. Thus, EPA has included ASTM D-4059 as an example of an
acceptable method in Sec. 761.60(g).
7. Research and development for PCB disposal. EPA has found that
properly conducted research and development for PCB disposal presents
no unreasonable risk. When approving these activities under current
Sec. 761.60(e), EPA generally takes into account such factors as the
quantity of PCB waste in the study; whether the capacity for approved
PCB disposal exceeds demand; whether there may be some specialized
wastes for which there is no currently approved disposal method; and
whether there may be some locations where there is a sufficient
quantity of waste that existing approved disposal technologies might be
inadequate or where the economics of the existing approved technologies
prohibit necessary cleanup. EPA also takes into account the inability
of a number of research for disposal approvals to achieve performance
objectives. For these studies, EPA still requires a written approval,
because larger amounts of waste potentially pose more obstacles to
treatment and disposal and greater potential for risk from incomplete
or unsuccessful disposal.
Today's rule establishes a self-implementing approval for disposal
research and development studies using smaller quantities of materials.
For these approvals, the maximum annual amount that may be treated
during R&D for disposal activities is 500 gallons of liquid PCB waste
or 70 cubic feet of non-liquid PCB waste. These amounts should be
sufficient to perform most research at a pilot disposal unit scale. The
PCB material may not exceed 10,000 ppm. Each R&D for PCB disposal
activity under this section may last no more than 1 year.
One commenter saw the requirement to provide 30-day advance
notification to EPA, State, and local authorities prior to the start of
a R&D for disposal activity as an unnecessary burden which would
encumber scientific research and not provide any benefits. EPA strongly
supports community right to know. EPA knows of few research projects
which are so essential or time-sensitive that the 30-day notice would
cause a severe hardship. However, EPA will not require the 30-day
advance notification of disposal, if EPA, State, and local authorities
waive the requirement in writing.
Some commenters had difficulty understanding the distinction EPA
was making between PCB R&D activities for use and for disposal. TSCA
itself creates the distinction. One objective of TSCA and the PCB
regulations is to direct PCBs out of use and into disposal so that they
can no longer present a risk of injury to health or the environment.
EPA may authorize the use of PCBs that pose no unreasonable risk of
injury to health or the environment, but when the PCBs are no longer in
use, they must be disposed of. For example, PCBs in storage for
disposal may not be reused. Today's rule authorizes chemical analysis
and scientific experimentation using PCBs in a separate category under
Sec. 761.30(j).
Commenters noted that some chemical analysis of PCBs under
Sec. 761.30(j) would result in the destruction (i.e., disposal) of
PCBs, and that all PCBs in R&D, including R&D for disposal, could be
viewed as in use until the research and development was completed. EPA
believes that the use of PCBs in the R&D activities under
Sec. 761.30(j) poses inherently different risks from the R&D for
disposal activities under Sec. 761.60(j). For example, the amounts of
PCBs used in scientific research are small and strictly accounted for,
while amounts used in disposal research can be much larger and their
ultimate fate depends on the success of the disposal technology. In
addition, PCBs used in research under Sec. 761.30(j) are used in a
controlled environment by trained laboratory staff, while PCBs used in
Sec. 761.60(j) may be in open environments. Therefore, EPA has
finalized these provisions essentially as proposed.
Other commenters objected to the 1-year limit on self-implementing
R&D for disposal. EPA recognizes that some R&D for PCB disposal
activities may last more than 1-year. The rule allows the EPA Regional
Administrator to grant extensions to the time limit, and this process
should not result in delays if timely requests for extension, including
a report on the progress of the R&D for disposal activities, are
provided to EPA. In the past, when conditions of the approvals have
been met, EPA has extended in a timely manner bioremediation and other
kinds of ``treatability'' R&D for disposal approvals for more than 3
years after an original 1-year approval.
Based on comments requesting a clarification, the introductory
sentences from Sec. 761.60(j) of the proposal were moved to Sec. 761.3
to create a definition of ``research and development for PCB
disposal.''
8. PCB remediation waste. The proposed rule provided for three PCB
remediation waste disposal options: (1) Self-implementing disposal
similar to the PCB Spill Cleanup Policy, which is an enforcement policy
codified at 40 CFR part 761, subpart G (see Sec. 761.61(a)); (2)
existing approved disposal technologies (see Sec. 761.61(b)); and (3)
risk-based disposal (see Sec. 761.61(c)). EPA has retained each of
these three options. General comments about the options are discussed
first; more specific comments are discussed under the heading for each
option.
Commenters sought clarification on: (1) The regulatory status of
PCB remediation waste generated prior to April 18, 1978; (2) use or
disposal of sewage sludge; (3) management of liquid PCB remediation
waste; (4) management of radioactive PCB remediation waste; and (5) the
applicability of the PCB Spill Cleanup Policy (part 761, subpart G).
PCB remediation waste generated prior to April 18, 1978, is discussed
in Unit IV.E.1. of this preamble, which explains new Sec. 761.50,
Applicability of Storage and Disposal Provisions. EPA consolidated the
liquid PCB remediation wastes disposal options in
Sec. 761.61(a)(5)(iv).
Commenters were concerned that PCB remediation waste stored at the
cleanup site for more than 30 days prior to disposal would have to be
stored in accordance with Sec. 761.65(b). EPA has added
Sec. 761.65(c)(9) to allow on-site storage of bulk PCB remediation
waste in a way which prevents uncaptured releases in case of a spill
and controls migrations from precipitation and volatilization. Waste
transported off-site must be packaged according to the Hazardous
Materials Regulations at 49 CFR parts 171 through 180 and stored for
disposal in facilities approved under Sec. 761.65(b).
EPA received comments on the applicability of 40 CFR part 761,
subpart G, the PCB Spill Cleanup Policy. The only change EPA made to
subpart G was to decrease the minimum reportable quantity from 10
pounds to 1 pound of PCBs. EPA continues to emphasize that subpart G is
not a regulation but an enforcement policy that applies to releases
from authorized uses. EPA intends that new Sec. 761.61 will address
more spill scenarios than subpart G does, such as (1) those which
occurred prior to May 4, 1987, and (2) those which occurred after May
4, 1987, where notification was not given and/or where cleanup was not
begun in accordance with the PCB Spill Cleanup
[[Page 35407]]
Policy. Many commenters wanted to extrapolate subpart G to other
cleanup waste scenarios instead of using proposed Sec. 761.61. Today's
final rule does not expand the scope of subpart G, but EPA factored
many of the assumptions used in subpart G, such as the time allowed for
PCBs to migrate from a spill, into Sec. 761.61.
The NPRM stated that the self-implementing option of Sec. 761.61
would not apply at sites being cleaned up under CERCLA, RCRA, or any
EPA enforcement action. A number of commenters suggested that this
provision was too broad because it would preclude the self-implementing
option even at portions of such facilities that were not being
addressed by other authorities. One commenter stated that the reference
to other enforcement actions by EPA was too vague.
EPA did not intend to prevent or discourage persons from conducting
self-implemented cleanups where another part of the same facility is
being addressed under an authority such as CERCLA or RCRA. But EPA also
clarifies that a facility cannot unilaterally decide to do a self-
implementing cleanup under Sec. 761.61, and then contend that their
decision precluded any further or different cleanup under other
authorities. As modified, today's rule does not prevent a person from
conducting a self-implementing cleanup at any part of its property,
even if another part of the facility is also being addressed under some
other authority. For example, a large site having zones A, B, and C
could have an on-going RCRA corrective action cleanup at zone A, a
CERCLA section 106 order at zone B, and still potentially be eligible
for a self-implementing PCB remediation at zone C. Section
761.61(a)(1)(ii) simply clarifies that such action by the facility does
not bind other cleanup programs, such as CERCLA or RCRA, which remain
free to determine which parts of the facility they will address and how
to do so, using their usual cleanup criteria. Since sites contaminated
with PCBs often contain other contaminants such as metals and organic
solvents, each remedial action needs to consider and address all
constituents of concern. If a person is considering doing a self-
implementing cleanup at a portion of the facility likely to undergo
cleanup under some other Federal or state program, the person would be
well-advised to coordinate with that program before proceeding, to
avoid having to do further work after its self-implementing cleanup was
completed. With respect to PCB remediation waste cleanup, EPA
acknowledges the usefulness of the documents entitled: Guidance on
Remedial Actions at Superfund Sites with PCB Contamination, EPA/540/G-
90/007, August 1990; Technology Alternatives for the Remediation of
PCB-Contaminated Soil and Sediment, EPA Engineering Issue, EPA/540/S-
93/506, October 1993; and Best Management Practices (BMPs) for Soil
Treatment Technologies: Suggested Operational Guidelines to Prevent
Cross-media Transfer of Contaminants during Clean-up Activities, EPA
530-R-97-007, May 1997. These documents are available from the RCRA
Hotline at 1-800-424-9346.
Some commenters also stated that EPA should clarify how this rule
would operate as an ``applicable or relevant and appropriate
requirement'' (ARAR) under CERCLA. Cleanup decisions at CERCLA sites
have relied on the 1987 TSCA PCB Spill Cleanup Policy. It must be noted
that because the Spill Cleanup Policy is not a binding regulation, it
is not an ARAR for Superfund response actions. However, as policy
reflecting substantial scientific and technical evaluation, it has been
considered as important guidance in developing cleanup levels at
Superfund sites. EPA anticipates that today's rule will be a potential
ARAR at CERCLA sites where PCBs are present. EPA would expect that
CERCLA cleanups would typically comply with the substantive
requirements of one of the three options, provided by Sec. 761.61, upon
completion of the cleanups. This decision would not be made by the
facility, but in the remedy selection process.
a. Self-implementing option. EPA reorganized proposed
Sec. 761.61(a), and the reorganized structure is reflected here.
EPA did not intend self-implementing PCB remediation waste disposal
to apply to large PCB remediation sites unless very stringent sampling
requirements are used. EPA intended it to address moderate sized sites
where only PCBs were present (or the properties of PCBs drove cleanup
decisions) and where a general no unreasonable risk remedy would be
acceptable. Generic risk assumptions and sampling approaches for small
areas of contamination cannot be universally applied to very large
sites. Nor can sampling schemes for continuously generated, current
waste streams from well-characterized industrial processes serve as a
scientifically sound starting point for large areas where the
homogeneity of the waste is unknown. Sampling must be much more
comprehensive for heterogeneous waste (or waste of unknown homogeneity)
where little is known about contamination sources, the periodicity and
exact location of waste generation, and any PCB migration from the
waste since original deposition. Much greater knowledge from pre-
cleanup characterization of waste can reduce verification sampling.
Through a risk-based approval at Sec. 761.61(c), the EPA Regional
Administrator can more actively evaluate measurements taken
concurrently with cleanup (as is done at Superfund National Priority
List (NPL) sites) as an alternative to a more stringent self-
implementing verification sampling approach required in Sec. 761.61(a).
Without the same level of oversight as in NPL sites, self-implementing
verification sampling should be comprehensive. To limit transaction
time for site cleanup and constraints on cleanup, EPA placed the site
sampling emphasis in Sec. 761.61(a)(5) at the post-cleanup verification
period, rather than under the limited pre-cleanup site characterization
in Sec. 761.61(a)(2).
i. Applicability. The applicability section of the NPRM provided
that the self-implementing remediation waste option was not applicable
to areas having human or animal populations that might have a higher
sensitivity to the toxic effects of PCBs. This provision has been
deleted in response to comments it could apply to almost all sites. New
language has been added at Sec. 761.61(a)(4)(vi) to enable the EPA
Regional Administrator, based on the notification required in
Sec. 761.61(a)(3), to require cleanup of the site or a portion of the
site to more stringent cleanup levels based on proximity to areas such
as residential dwellings, hospitals, schools, nursing homes,
playgrounds, parks, day care centers, endangered species habitats,
estuaries, wetlands, national parks, national wildlife refuges,
commercial fisheries, and sports fisheries.
ii. Site characterization. Today's rule requires any person
conducting self-implementing cleanup of PCB remediation waste to
characterize the site adequately to be able to provide the information
necessary for the Regional Administrator to review the cleanup plan.
The proposal required detailed small scale information, such as numbers
of characterization sample results (proposed Appendix II). Today's rule
is more flexible, providing subpart N as a reference point for the
assessment of sampling data, but allowing other sampling methods that
are as effective at characterizing contamination at the site.
EPA also clarified that non-liquid sample results shall be reported
on a dry weight basis, as <greek-m>g/g of sample. Liquid sample results
must be reported on a
[[Page 35408]]
wet weight basis as <greek-m>g/g of sample. Surface sampling results
shall be reported as <greek-m>g/100 cm<SUP>2</SUP> (see Sec. 761.274 of
the regulatory text). Regardless of the size of the surface area,
divide 100 cm<SUP>2</SUP> by the surface area and multiply this
quotient by the total number of micrograms of PCBs on the surface to
obtain the equivalent measurement of micrograms per 100 cm<SUP>2</SUP>.
iii. Notification and certification. Commenters sought to eliminate
the notification requirement, based on inconvenience and not wanting to
identify the site, rather than risk/exposure concerns. EPA is
continuing its policy of providing State and local jurisdictions
advanced notice of PCB disposal. Section 761.61(a)(3) was redesignated
and revised to designate who in the State and local agencies would
receive the notification.
EPA clarifies that it did not intend the 30-day notification
requirement to prohibit emergency cleanup (see Sec. 761.61,
introductory text, of the regulatory text). Emergency cleanup may occur
without notification, but does not satisfy the requirements of
Sec. 761.61. Emergency cleanup is appropriate where there is imminent
danger to health and the environment without containment and/or
treatment. Emergency cleanup is not appropriate to prevent additional
cleanup costs or other business expenses resulting from containment or
from waiting 30 days for the notification process to be completed.
Emergency response personnel should communicate directly with EPA
regional personnel on proposed remedial actions. EPA has retained
language allowing less than 30 days notification if the EPA Regional
Administrator, and State and local officials who are required to
receive the notification, waive the 30-day requirement in writing (see
Sec. 761.61(a)(3)(iii) of the regulatory text).
iv. Cleanup levels. EPA did not receive comments which justified
changes in the proposed cleanup levels. However, the final rule retains
the proposed provision at Sec. 761.61(c) allowing the EPA Regional
Administrator to approve risk-based cleanup levels, on a case-by-case
basis, different than those required in Sec. 761.61(a). The final rule
organizes Sec. 761.61(a)(4) by the PCB remediation waste medium: bulk
PCB remediation waste, non-porous surfaces, porous surfaces, and
liquids.
The proposed definitions at Sec. 761.3 for ``high exposure area''
and ``low exposure area,'' have been changed in two ways: (1) To
reflect that EPA is addressing the occupancy of the area by individuals
not wearing dermal and respiratory protection as a surrogate for
reasonable worst-case exposure; and (2) to reflect that EPA evaluates
the exposure risk in the area based on the combination of the final
concentration of PCBs in the area and the amount of time of exposure.
The term ``high exposure area'' is now ``high occupancy area'' and
``low exposure area'' is now ``low occupancy area.'' Many outdoor areas
will be low occupancy areas; others, such as school playgrounds and
residential yards, might be high occupancy areas. Commenters offered
several terms in place of the proposed ``high exposure area'' and ``low
exposure area.'' Only one actually focused on the risk-based foundation
of the self-implementing cleanup: the exposure of an individual. This
comment suggested that occupancy was a reasonable worst-case surrogate
for exposure and offered an extensive description of occupancy
scenarios. EPA used a simpler variation of the comment as the final
definition.
The final rule is structured so that the risk to occupants not
wearing dermal and respiratory protection of high occupancy areas and
low occupancy areas is generally the same. For the same chemical (PCBs)
the risk is directly proportional to exposure. The rule allows
different concentrations of PCBs to remain in high occupancy areas and
low occupancy areas based on different occupancy times (see
Sec. 761.61(a)(4) of the regulatory text). For example, the non-porous
surface cleanup level for high occupancy areas is 10 <greek-m>g PCB/100
cm<SUP>2</SUP>, and for low occupancy areas is 100 <greek-m>g PCB/100
cm<SUP>2</SUP>, an order of magnitude difference. Therefore, to have
the same risk of exposure, the maximum occupancy time must be \1/10\ as
long in a high occupancy area as in a low occupancy area. For bulk
remediation materials, EPA allows cleanup levels of 1 ppm in high
occupancy areas and 25 ppm in low occupancy areas. EPA believes that
the measures taken to prevent exposure in low occupancy areas, such as
capping, marking and fencing, provide sufficient additional protection
to normalize the higher cleanup levels.
EPA's evaluation of risk assumed unprotected exposure 24 hours a
day, 7 days a week (168 hours per week) for the high occupancy
scenario. Because the surface cleanup concentrations are 10 times as
high in the low occupancy area as in the high occupancy area, to have
the same exposure in both areas, the low occupancy unprotected exposure
would have to be \1/10\ of the high occupancy exposure period, or less
than 16.8 hours per week. For bulk materials, the low occupancy
exposure would be \1/25\ of 168 hours, or less than 6.7 hours per week.
The number of hours in the definitions of ``high occupancy area'' and
``low occupancy area'' in Sec. 761.3 reflect these weekly averages
times a 50-week exposure per year assuming a 2-week annual vacation
from the occupancy area, that is 50 weeks x 16.8 hours/week = 840 hours
and 50 weeks x 6.7 hours/week = 335 hours.
EPA has limited the self-implementing option to these two scenarios
based on the risk-based concepts implemented as part of the Spill
Cleanup Policy in 40 CFR part 761, subpart G (Refs. 19 and 20). EPA's
experience has been that most cleanup scenarios have been effectively
dealt with by the two-tiered approach in the Spill Cleanup Policy. In
the few instances where the two-tiered approach has not readily
addressed a particular cleanup scenario, the EPA Regional Administrator
has exercised flexibility to allow less stringent or alternative
requirements. (See 40 CFR 761.120(c)). Similarly, under Sec. 761.61(c),
the EPA Regional Administrator has the flexibility to grant a risk-
based approval for cleanup of PCB remediation waste to levels different
from those specified under the defintions of ``high occupancy area''
and ``low occupancy area.''
Revised Sec. 761.61(a)(4) also requires the owner of an area
cleaned up to the levels of a low occupancy area to clean the area to
the levels of a high occupancy area where there is a change in the use
of the area such that exposure to PCBs could reasonably be expected to
increase.
v. Site cleanup. EPA is clarifying in Sec. 761.61(a)(5) that PCB
disposal technologies approved under Secs. 761.60 and 761.70 are
acceptable for on-site self-implementing PCB remediation waste disposal
within the confines of the operating conditions of the respective
approvals. For example, technologies approved under Sec. 761.60 or
Sec. 761.70 for disposal of PCB liquids may not be used to dispose of
soil. Technologies approved under Sec. 761.60 or Sec. 761.70 to dispose
of PCBs in soil at concentrations less than 500 ppm may not be used to
dispose of soil containing greater than 500 ppm PCBs.
The only forms of on-site disposal technology which do not require
an approval under Sec. 761.60 or Sec. 761.70 and which are approved for
self-implementing disposal are soil washing and decontamination in
accordance with Sec. 761.79. Soil washing is extraction of PCBs from
soil using a solvent, recovering the solvent from the soil, separating
the PCBs from the recovered solvent for disposal, and then disposal
[[Page 35409]]
or reuse of the solvent in accordance with Sec. 761.79(d) and (g).
Based on comments received on the potential emissions of products
of incomplete combustion from in-situ vitrification and EPA's
experience in approving this disposal technology, this technology may
not be used for on-site disposal without an approval from EPA under
Sec. 761.60(e) or Sec. 761.61(c).
EPA assumed that the primary application of self-implementing
cleanup would be safe and effective on-site treatment and land disposal
(e.g., PCB concentration reduction, with the PCBs destroyed on-site,
followed by on-site land disposal). EPA did not intend to prohibit or
discourage off-site disposal, and is retaining the off-site disposal
regulatory options which have been in place since April 18, 1978 (see
Sec. 761.61(b) of the regulatory text). EPA recognizes that some
materials will be sent off-site because of the economics of on-site
treatment of small amounts of unusual or high concentration waste.
Today's rule expands the options for off-site disposal; for example,
PCB remediation waste containing less than 50 ppm PCBs may be sent off-
site for disposal in State-approved land disposal facilities for the
management of municipal solid waste landfills permitted by EPA under
section 3004 of RCRA, or by a State authorized under section 3006 of
RCRA; or disposal facilities approved under 40 CFR part 761.
EPA received comments requesting the option to dispose of PCB/
radioactive waste in a waste management unit licensed under the Atomic
Energy Act. However, the Agency has concerns that disposal practices at
those facilities, while appropriate for radioactive waste, may result
in an unreasonable risk to human health and the environment from PCBs
<gr-thn-eq>50 ppm disposed of at such sites. Therefore,
Sec. 761.50(b)(7) provides that any person disposing of PCB/radioactive
waste must do so taking into account both its PCB concentration and its
radioactive properties. If, taking into account only the properties of
the PCBs in the waste (and not the radioactive properties of the
waste), the waste meets the requirements for disposal in a facility
permitted, licensed, or registered by a State as a municipal or non-
municipal non-hazardous waste landfill (e.g., PCB bulk product waste
under Sec. 761.62(b)(1)), then the person may dispose of the PCB/
radioactive waste, without regard to the PCB component of the waste, on
the basis of its radioactive properties in accordance with all
applicable requirements for the radioactive component of the waste.
Commenters suggested that sampling and analysis could pose
unnecessary costs if the waste were to be disposed of, assuming that it
was regulated, especially since the proposal could be read as always
requiring analysis. EPA added an option at Sec. 761.50(a)(5) that non-
liquid PCBs can be assumed to be <gr-thn-eq>500 ppm and disposed of
accordingly, rather than analyzed.
EPA also eliminated the proposed requirement to notify disposal
facilities receiving PCB remediation waste which will be stored in an
area subject to a PCB commercial storage approval and/or disposed of in
an area subject to a PCB disposal approval. Pre-disposal notification
is still required for all other storage and disposal facilities (see
Sec. 761.61(a)(5)(i)(B)(3)(iv) of the regulatory text). In addition,
the subpart K notification and manifesting requirements do not apply to
off-site disposal of PCB remediation waste at <50 ppm.
In response to comments, EPA clarified the disposal options for
liquid PCB remediation waste, and provided for the disposal of mixed
liquid/non-liquid PCB remediation waste. The overall objective of PCB
remediation waste disposal is to minimize potential risks of PCB
dispersion into the environment from disposal. One way to do so is to
remove liquids from mixed liquid/non-liquid waste. Ways to minimize
such risks from transportation of waste are on-site PCB remediation
waste disposal, or using packaging in compliance with DOT Hazardous
Materials Regulations (HMR) at 49 CFR parts 171 through 180. PCBs not
subject to the HMR (i.e., PCB wastes at less than 20 ppm or less than 1
pound of PCBs regardless of concentration) must be packaged in
accordance with 49 CFR 173.203 (for liquids) or 49 CFR 173.213 (for
non-liquids). Therefore, EPA is requiring on-site, phase separation of
mixed liquid/non-liquid PCB remediation waste unless protective
packaging for liquids is used for off-site shipment.
vi. Cleanup verification. The final rule clarifies that the scope
of subpart O (proposed Appendix II) includes verifying that bulk PCB
remediation waste or porous surfaces at a site have been properly
cleaned up in accordance with Sec. 761.61(a). EPA added options,
including compositing, to the cleanup verification sampling in subpart
O. Cleanup verification sampling for non-porous surfaces is addressed
in subpart P. These subparts may not be used to make conclusions or
extrapolations about PCB concentrations outside of the area which has
been cleaned up and verified based on the results of that sampling. EPA
also added a third dimension to the verification procedure to ascertain
if the cleanup captured vertical waste migration. Subpart O applies
only to bulk PCB remediation waste and porous surfaces left at the
original cleanup location. Non-liquid, non-metal PCB remediation waste
to be shipped off-site must be sampled in accordance with subpart R.
EPA did not propose to allow compositing on the grounds that
compositing can dilute hot spots, but commenters pointed out that hot
spots should have been eliminated in the contamination removal process.
EPA agrees, and therefore the final rule provides for the compositing
of samples. For example, EPA has changed the minimum number of samples
from three, to one composite of three. For liquids, no compositing is
necessary because they mix naturally and are easily homogenized by
stirring.
Subpart O provides two sampling options for large sites. The first
option is designed to address sites having a single point source, many
point sources, or an unknown number of sources, of contamination. The
second option only addresses sites having a known single point source
of contamination. Both options use a square grid structure and grid
interval, which has been enlarged to correspond to the largest interval
provided in the PCB Spill Cleanup Policy. Both options specify
compositing of adjacent samples of the same size, provide the maximum
number of samples which can be composited, and require that composited
samples be mixed thoroughly and subsampled before chemical analysis.
EPA revised the requirement to reclean an entire site based on a
single sample's failure to meet cleanup levels. As revised, when a
composite fails to meet the cleanup requirements, the area that must be
recleaned and reanalyzed is an area larger by a grid interval than the
area represented by the failing composite.
Subpart P provides sample site selection procedures for non-porous
surfaces, as well as procedures for analyzing the samples and
interpreting the results of the sampling. Subpart P applies to all non-
porous surfaces destined for disposal, regardless of whether the
disposal will take place on-site or off-site.
EPA also provided in subpart Q a test for qualifying an alternate
extraction and chemical analysis procedure for determining PCB
concentrations in PCB remediation waste in initially characterizing the
cleanup site and for post cleanup verification.
[[Page 35410]]
vii. Cap requirements. In the NPRM, EPA used the term ``non-
porous'' to describe concrete used as a cap over non-liquid PCB
remediation waste left on-site. At Sec. 761.61(a)(7), EPA has replaced
descriptions of cap materials with performance criteria, which
essentially paraphrase cap requirements from Sec. 264.310(a) of the
RCRA regulations. EPA recommends that the owner of a cleanup site
containing a cap visually inspect the cap monthly in perpetuity for
breaches such as leaks, cracks, breaks, and faults. EPA increased the
amount of time allowed to repair a break in a cap to allow additional
time to technically and physically begin repairs in remote areas.
viii. Deed restrictions for caps, fences, and low occupancy areas.
Commenters worried about potential risks from a site which was cleaned
to low occupancy area standards being converted to a high occupancy
area use. In response, at Sec. 761.61(a)(8), EPA added deed restriction
requirements from the RCRA landfill closure regulations, which includes
requirements for converting the land use which addresses situations
such as the change from a low occupancy area to a high occupancy area.
ix. Recordkeeping. EPA finalized Sec. 761.61(a)(9) as proposed.
b. Performance-based option. The NPRM included high-temperature
incinerators, high efficiency boilers, chemical waste landfills, and
alternate destruction technologies approved by EPA as performance-based
disposal options for PCB remediation waste. These options have been
retained in the final rule.
The final rule at Sec. 761.61(b)(3) also allows material containing
<50 ppm PCBs that has been dredged or excavated from waters of the
United States to be managed and disposed of in accordance with a permit
that has been issued under section 404 of the Clean Water Act or under
section 103 of the Marine Protection, Research, and Sanctuaries Act (or
the equivalent of such a permit as provided for in regulations of the
U.S. Army Corps of Engineers (Corps) at 33 CFR part 320 et seq.). These
options are available only for dredged material containing PCBs <50
ppm. Dredged material contaminated with PCBs at <gr-thn-eq>50 ppm must
be managed under one of the other disposal options of Sec. 761.61.
Research has shown that sediments can be the depository for
chemicals and other pollutants, including PCBs, discharged into surface
waters from both point and non-point sources. Contaminants in sediments
can harm aquatic environments and pose a threat to human health.
Studies have shown that PCB contamination may occur in all types of
water bodies (Ref. 21, Chapter 2.). Dredged material containing PCBs,
such as sediments, settled sediment fines, and aqueous decantate from
sediment, is included in the definition of ``PCB remediation waste''
and is regulated for disposal under TSCA at the concentration at which
it is found.
The Corps bears important national responsibilities regarding
dredged material, as a regulatory agency and in constructing and
maintaining the Federal navigation system. The Corps dredges
approximately 250 million cubic yards of sediment from navigable
waterways each year to maintain navigation. The Corps regulates the
excavation and placement of another approximately 75 million cubic
yards of dredged material by Federal navigation project beneficiaries.
Dredged material from those navigation projects is placed in many
sites, including ocean waters, estuaries, beaches, rivers, and uplands,
including sites associated with beach nourishment and wetlands
construction. In addition, the Corps and its associated local sponsors
are responsible for a large number of flood control channels, which
must be periodically dredged to maintain their capacity to hold and
convey flood waters.
Since 1971, EPA and the Corps have worked jointly to develop
comprehensive testing and management protocols used to determine
suitable alternatives for management and disposal of dredged material.
Regulatory programs established under the Marine Protection, Research,
and Sanctuaries Act and the Clean Water Act require analysis of
alternatives to protect the environment while ensuring economic and
engineering feasibility. The testing and management protocols for
dredged material developed by the Corps and EPA are used to assess and
manage sediments representing the full spectrum of contamination
potential. Existing Corps/EPA regulatory authorities and their
scientific protocols were developed specifically for dredged material
regulation and management.
EPA believes that management and disposal of dredged materials
containing <50 ppm PCBs in accordance with the Corps/EPA protocols as
provided for at Sec. 761.61(b)(3) will not present an unreasonable risk
to health or the environment.
Section 761.61(b)(3) provides a disposal option specific to dredged
material containing <50 ppm PCBs. As noted above, dredged material
falls within the definition of PCB remediation waste, and as such the
other disposal options of Sec. 761.61(a), (b), and (c) are available
for management and disposal of dredged material containing PCBs at any
concentration, as long as the applicable requirements are met.
c. Risk-based option. Section 761.61(c) allows the EPA Regional
Administrator to approve case-by-case, risk-based cleanup, storage, or
disposal of PCB remediation waste as an alternative to Sec. 761.61(a)
or (b). Commenters asked EPA to codify a public comment and/or
participation process. EPA intends to use the public comment process in
use in each respective EPA Regional PCB program office.
d. Disposal of PCB sewage sludge. Land application of sewage sludge
containing <50 ppm PCBs is ``use'' under TSCA section 6(e), and is
authorized under Sec. 761.20(a)(4). Use of sewage sludge containing
<gr-thn-eq>50 ppm PCBs is prohibited (see Unit IV.B.1.b. of this
preamble). Disposal of sewage sludge containing less than 50 ppm PCBs,
including application as a landfill cover, is unregulated under TSCA.
Sewage sludge containing <gr-thn-eq>50 ppm PCBs, defined as ``PCB
sewage sludge,'' must be disposed of pursuant to Sec. 761.61. In
addition, regulations at 40 CFR part 503 or part 257 may apply to use
and disposal of sewage sludge containing <50 ppm PCBs, including sewage
sludge that is PCB remediation waste. As mentioned in the exceptions
for the use of sewage sludge at Sec. 761.20(a)(4), PCBs in sewage
sludge regulated for disposal under TSCA may not be diluted for
purposes of avoiding the PCB disposal regulations.
9. PCB bulk product waste (non-remediation waste). In the NPRM, EPA
identified certain PCBs and PCB Items coming out of service for
disposal as PCB Non-Remediation Waste (see Sec. 761.3 and Sec. 761.62).
In today's rule, EPA calls this material PCB bulk product waste, to
characterize more accurately its source and nature. The final rule
clarifies at Sec. 761.62 that the wastes addressed are <gr-thn-eq>50
ppm PCBs when taken out of service and there are four disposal options
for PCB bulk product waste (performance-based disposal, disposal in
solid waste landfills, risk-based disposal and disposal as daily
landfill cover or roadbed). The final rule at Sec. 761.65(c)(10)
addresses temporary on-site storage of this waste. Under
Sec. 761.62(c), EPA may issue alternate storage approvals for PCB bulk
product waste on a case-by-case basis.
a. Performance-based disposal. In response to comments seeking
consistency with PCB remediation waste disposal, EPA added RCRA
[[Page 35411]]
Subtitle C landfills as a disposal option for PCB bulk product waste
because they are designed and operated in the same manner as TSCA
chemical waste landfills (see Sec. 761.62(a)(3) of the regulatory
text). EPA also added alternate disposal pursuant to Sec. 761.60(e),
decontamination pursuant to Sec. 761.79, thermal decontamination
pursuant to Sec. 761.79(c)(6), and a coordinated approval pursuant to
Sec. 761.77 (see Secs. 761.62(a)(4), (a)(5), (a)(6), and (a)(7)
respectively of the regulatory text).
b. Disposal in solid waste landfills (leachability-based option).
In the NPRM, EPA presumed that some PCB bulk product wastes met the
leachability based-standard of <50 parts per billion (ppb) PCBs (see
proposed Sec. 761.62(b)). Other PCB bulk product wastes could be tested
using the Toxicity Characteristic Leaching Procedure, Method 1311 in
``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,''
EPA Publication SW-846 (the TCLP test) to determine the leachability of
PCBs in the waste.
In today's final rule, EPA has not retained the TCLP as the
definitive test because commenters indicated that it was not accurate
and EPA prefers to set performance standards without prescribing test
methods. Instead, EPA has provided two different landfill disposal
options for PCB bulk product waste. PCB bulk product waste containing
PCBs which are tightly bound within the matrix of PCB bulk product
wastes and bulk product waste which leaches <10 <greek-m>g/L measured
using a procedure used to simulate leachate generation may be disposed
of in municipal or non-municipal non-hazardous waste landfills
(Sec. 761.62(b)(1)). PCB bulk product waste containing PCBs which are
not bound in a solid matrix may be disposed of in landfills which
segregate the wastes from organic liquids which could mobilize the PCBs
and which collect leachate generated from the landfill cell and monitor
it for PCBs (see Sec. 761.62(b)(2) of the regulatory text). Disposal of
these materials in accordance with the conditions specified in
Sec. 761.62(b) would not result in release of toxicologically
significant concentrations of PCBs to the the ambient environment,
including ground water. Therefore, EPA has determined that such
disposal does not present an unreasonable risk of injury to health or
the environment (Refs. 22 and 23).
While EPA is still requiring leach testing for certain materials
disposed of in a municipal or non-municipal non-hazardous waste
landfill (see Sec. 761.62(b)(1)(iii)), EPA has reduced the level of
PCBs in the aqueous leachate from 50 to 10 <greek-m>g/L (approximately
10 ppb). This change is based on comments that the solubility of two
major Aroclor components, 1254 and 1260, is generally less than 50 ppb.
Thus false negatives concerning the presence of leachable PCBs (PCBs
not bound up in the matrix of the waste) would result if EPA retained
50 ppb as the regulatory level.
It is not always necessary to determine the PCB concentration or
leaching characteristics of PCB bulk product waste. For example, under
Sec. 761.62(b)(1)(i) certain PCB bulk product waste may be disposed of
in a facility permitted, licensed, or registered by a State as a
municipal or non-municipal non-hazardous waste landfill regardless of
its PCB concentration. Under Sec. 761.62(b)(4), the disposer would have
to notify the disposal facility that the waste may contain PCBs
<gr-thn-eq>50 ppm, but could do so based on application of a general
knowledge of the waste stream (or similar material) to report the PCB
concentration. If the disposer could not base the Sec. 761.62(b)(4)
notice on general knowledge of the PCB concentration of the waste, and
needed to sample the waste, however, the disposer would have to use
subpart R or another sampling method approved under Sec. 761.62(c). It
would also be necessary to use subpart R or Sec. 761.62(c) for purposes
of disposal of PCB bulk product waste in accordance with
Sec. 761.62(a)(4) in a facility having an upper limit on PCB
concentration which can be disposed using the approval.
Generators of PCB bulk product waste must provide prior
notification to PCB waste management facilities not having commercial
PCB storage or disposal approvals. The notice must state that the PCB
bulk product waste may include components containing PCBs at
<gr-thn-eq>50 ppm. There are three options for determining the
concentration of the waste: analysis of a representative sample of the
waste in the shipment selected in accordance with subpart R;
application of a general knowledge of the waste stream (or similar
material) based on prior testing by the disposer or others; or the
presumption that the unsampled, unanalyzed waste contains
<gr-thn-eq>500 ppm PCBs (see Sec. 761.50(a)(5)). For PCB bulk product
waste disposed of under Sec. 761.62(b)(1), the notice must state that
the waste is known or presumed to leach <10 <greek-m>g/L PCBs. For PCB
bulk product waste disposed of under Sec. 761.62(b)(2), the notice must
state that the waste is known or presumed to leach <gr-thn-eq>10
<greek-m>g/L PCBs.
In addition, Sec. 761.62(b)(4) requires different notification
procedures for waste disposed of under Sec. 761.62(b)(1) than for waste
disposed of under Sec. 761.62(b)(2). For waste disposed of under
Sec. 761.62(b)(1), notice is required only in advance of the first
shipment from the same disposal waste stream. For example, a new notice
would be required where a shredding operation changed its feedstock
from automobiles to plastic-insulated electrical cables or to white
goods (i.e., household appliances or industrial appliances, such as
refrigerators, ranges, washers, and water heaters). A disposer of
demolition waste would have to submit a new notice for demolition waste
from a new demolition project. For example, where a disposer was
delivering waste from a demolition project in more than one load, a
notice would not be required for each load from that project. Where the
disposer began delivery of waste from a different demolition project, a
new notice would be required. For waste disposed of under
Sec. 761.62(b)(2), notice is required in advance of the first shipment
from the same disposal waste stream and with each subsequent shipment.
Also, part 761, subpart K does not apply to PCB bulk product waste
disposed of under Sec. 761.62(b).
Under current rules at Sec. 761.60(b)(2)(ii), intact and non-
leaking PCB small capacitors may be disposed of as municipal solid
waste. Automobile and appliance shredder fluff may be disposed of in a
municipal or non-municipal non-hazardous waste landfill as PCB bulk
product waste only if it does not contain shredded PCB small
capacitors. If a capacitor is shredded, the PCBs are no longer enclosed
within the capacitor and must be disposed of under Sec. 761.62(a) or
(c).
c. Risk-based option. Section 761.62(c) sets out the procedure EPA
will use for issuing risk-based storage or disposal approvals for PCB
bulk product waste. EPA will evaluate each application for a risk-based
approval and its supporting information to determine whether the
proposed storage or disposal methods or locations would pose an
unreasonable risk of injury to health or the environment. To allow
flexibility, the final rule does not specify the criteria EPA must use
in this evaluation. However, examples of such criteria could be: (1)
The nature and quantity of the wastes; (2) the proposed alternate
design and operation; (3) the hydrogeologic setting of the unit,
including attenuative capacity and thickness of the liners and soils
present between the pile and ground water or surface water; and (4) any
other factors
[[Page 35412]]
which would influence the quality and mobility of the leachate produced
and its potential to migrate to ground or surface water.
d. Disposal as daily landfill cover or roadbed. EPA received
comments on using automobile shredder waste as a daily landfill cover
or under asphalt as part of a road bed. EPA considers these activities
as disposal rather than use, and under Sec. 761.62(d) will allow
shredder waste to be disposed of in a landfill as the final daily
cover, if it remains in the landfill and is not released or dispersed
by wind or other action or may be disposed of under asphalt as part of
a road bed. Because these disposal options have been restricted to
materials that do not leach and because other potential routes of
exposure have been controlled, EPA has concluded that the risk from
these disposal options is the practical equivalent of disposal in a
landfill as required in Sec. 761.62(b)(1), and therefore that this risk
is not unreasonable. Both of these potential disposal approaches can
also be addressed in a risk-based disposal application under
Sec. 761.62(c).
e. Sampling (subpart O). EPA redesignated Appendix III as subpart
O, and reorganized it to have three levels of random sampling:
collecting a representative 19-liter (5 gallon) bucket of waste from
the population, selecting one quarter of this 19 liters for particle
size reduction, and selecting a subsample of the reduced particle size
fraction for chemical analysis. Use the procedures specified in subpart
R to sample non-liquid, non-metal PCB bulk product waste or non-liquid,
non-metal PCB remediation waste to be disposed of off-site when it is
necessary to analyze the waste to determine PCB concentration or
leaching characteristics for storage or disposal. Subpart R includes
procedures for sampling waste which is continuously generated and
previously generated waste. However, Sec. 761.50(a)(5) allows non-
liquid PCBs to be land disposed without regard to otherwise-applicable
sampling requirements by presuming that the PCBs disposed of are
<gr-thn-eq>500 ppm (or <gr-thn-eq>100 <greek-m>g/100 cm<SUP>2</SUP> if
no free-flowing liquids are present).
Some commenters provided specific sampling plans to address the
objectives in the proposed rulemaking. EPA incorporated some aspects of
these plans into subpart O. However, these plans relied on judgement
sampling, which has an inherent bias. To avoid the bias, EPA has
substituted sample selection procedures which use random numbers.
10. PCB household wastes. EPA raised the issue in the ANPR and
NPRM, of whether it should create an exclusion from the disposal
requirements for PCB household waste. Although some commenters
questioned whether such an exclusion was needed, most supported the
idea, and suggested that EPA develop a TSCA exclusion that is identical
to the RCRA household waste exclusion at 40 CFR part 261.4(b). EPA
agrees that the provision at Sec. 761.63 should be modified to more
closely parallel the RCRA exclusion.
In the NPRM, EPA defined PCB household waste as:
PCB waste that is composed of unwanted or discarded household
items that contain PCBs, come from private residences and are
commonly found in private households, including individually owned
or rented units of a multi-unit construction. Wastes created during
renovation and demolition projects are not PCB household wastes
except for paint on surfaces. Renovation or demolition projects
include, but are not limited to, the conversion of industrial
property to residential units or the remodeling of hotels, motels,
or multiple rental units.
Several commenters suggested that EPA should expand the definition to
include wastes from commercial office buildings, automobiles, and other
vehicles found in private households regardless of the source, and
renovation wastes from private homeowners. In addition, they encouraged
EPA to eliminate distinctions it created between transient and
permanent settings. Many commenters did not accept the distinctions
that EPA had drawn between the TSCA and RCRA exclusions as valid.
EPA has modified the definition for PCB household waste to read as
follows:
PCB waste that is generated by residents on the premises of a
temporary or permanent residence for individuals (including
individually owned or rented units of a multi-unit construction),
and that is composed primarily of materials found in wastes
generated by consumers in their homes. PCB household waste includes
unwanted or discarded non-commercial vehicles (prior to shredding),
household items, and appliances or appliance parts and wastes
generated on the premises of a residence for individuals as a result
of routine household maintenance by or on behalf of the resident.
Bulk or commingled liquid PCB wastes at concentrations of 50 ppm or
greater, demolition and renovation wastes, and industrial or heavy
duty equipment with PCBs are not PCB household wastes.
Two criteria applicable to the RCRA household waste exemption must
also be satisfied for the TSCA PCB household waste exclusion: (1) The
waste must be generated by individuals on the premises of a temporary
or permanent residence for individuals, and (2) the waste must be
composed primarily of materials found in the wastes generated by
consumers in their homes (49 FR 44978, November 13, 1984). As a result,
waste from sources such as commercial office buildings are not subject
to the exclusion. EPA did not include a comprehensive listing of the
structures that could serve as temporary or permanent residences in the
TSCA definition. Nonetheless, residences covered by the RCRA exclusion
at Sec. 261.4(b)(1) (e.g., single and multiple residences, hotels and
motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic
grounds and day-use recreation areas) are included under the TSCA PCB
household waste exclusion.
EPA has determined that the PCB household waste exclusion will not
result in an unreasonable risk of injury to health or the environment.
Due to their age, many of the PCB-containing items that would be found
in consumer households have been disposed of by now. As a result, few
household items are likely to contain PCB capacitors (e.g., certain
refrigerators and household freezers, room and central air
conditioners, heat pumps, furnace blowers, fluorescent lighting
ballasts and microwave ovens), and the disposal of those which remain
in service will occur in a random, geographically dispersed manner.
Further, non-liquid PCBs found in household items will most likely be
bound in a solid matrix. EPA has taken precautions not to include in
the PCB household waste definition regulated PCB liquids (i.e.,
<gr-thn-eq>50 ppm PCB), demolition or renovation waste, and industrial
or heavy duty PCB equipment. Only those municipal collection programs
and treatment and storage facilities that can satisfy the PCB household
waste exclusion criteria will be able to operate under that exclusion.
The ultimate disposal of PCB household wastes is regulated; that is,
these wastes cannot be abandoned, for instance, on an empty lot. EPA
believes that PCB household waste managed in accordance with these
requirements will not result in environmental releases of PCBs.
Homeowners will commonly utilize their local hazardous waste
collection programs to dispose of unused paint, some of which may
contain PCBs. Typically the homeowners bring in liquids in 1 or 5
gallon buckets which are consolidated into drums at the collection
point and forwarded to a waste handling facility where they are tested
before mixing with other similar wastes. Bulk liquids with a
concentration of less than 50 ppm may then enter the waste oil/solvent
[[Page 35413]]
recycling stream and be used for fuel blending purposes. Rather than
allow the waste management facility to treat bulk liquids containing 50
ppm PCBs or greater as unregulated wastes, EPA is requiring that these
liquid PCB wastes be handled as regulated PCB waste (i.e.,
<gr-thn-eq>50 ppm); therefore, regulated levels of bulk liquid PCB
wastes are explicitly excluded from the household waste definition. EPA
believes that regulated bulk or commingled liquid PCBs should be
managed in high efficiency boilers or incinerators, as appropriate.
Further, EPA is not adopting the recommendation to include
renovation and demolition wastes within the exclusion, since these
wastes are not generated by consumers in their homes. However, wastes
generated as the result of routine household maintenance (as opposed to
renovation, construction or demolition activities) regardless of
whether the activity is conducted by the homeowner or a contractor,
would be considered PCB household wastes. Routine household maintenance
would include, for example, stripping and repainting residential walls,
and small home maintenance or repair projects such as removing/
replacing PCB-containing articles from residential units. This approach
is in alignment with existing policies for the RCRA household waste
exemption. EPA has indicated that it does not consider wastes from
debris produced during building construction, renovation, or demolition
in houses, or other residences to be similar to those generaged by a
consumer in the home during the course of daily living (49 FR 4478,
November 13, 1984). (Refs. 24 and 25). Therefore, the risk
considerations are not the same as for materials falling within the
definition of PCB household wastes. The disposal of these materials is
regulated under Sec. 761.62.
Commenters from the scrapping industry wanted EPA to broaden the
scope of the proposed PCB household waste exclusion to allow the
processing of items traditionally received by that industry. Instead,
elsewhere in this rule (see Sec. 761.79(b)), EPA recognizes certain
activities traditionally conducted by the scrapping industry (e.g.,
chopping, stripping insulation, and scrapping) as forms of
decontamination and states that those activities do not require a TSCA
disposal approval. Waste generated as a result of those processes
generally is regulated as PCB bulk product wastes and must be disposed
of in accordance with Sec. 761.62.
Another commenter stated that PCB capacitors in residential
furnaces should be managed as PCB household waste at the time of
disposal. EPA agrees. Other appliances that may contain PCB small
capacitors include, but are not limited to, refrigerators and household
freezers, room and central air conditioners, heat pumps, furnace
blowers, fluorescent lighting ballasts and microwave ovens. These
items, although they contain PCBs, may be handled as PCB household
waste under the TSCA exclusion and disposed of through a municipal
hazardous waste collection program.
EPA also received a request to clarify its intent regarding
entities that accumulate capacitors for disposal at TSCA facilities,
for instance, utilities that collect capacitors from households. As
indicated in the preamble discussion regarding the disposal of PCB
small capacitors, the Agency is not changing the disposal requirements
for intact and non-leaking PCB small capacitors; e.g., individuals
other than manufacturers of PCB capacitors and/or PCB Equipment may
dispose of small capacitors as municipal solid waste. (Leaking PCB
small capacitors are regulated waste and are required to be disposed of
by a method approved under TSCA.) EPA applauds the activities of those
entities who collect and accumulate household capacitors for disposal
in TSCA-approved facilities and encourages those entities to continue
their collection and disposal efforts.
11. Wastes from R&D activities, including chemical analysis of
PCBs. EPA proposed disposal requirements for waste generated during the
process of chemical analysis. In response to comments, EPA clarifies
that Sec. 761.64 addresses laboratory wastes from R&D activities
authorized in Sec. 761.30(j) as well as the chemical analysis required
in part 761, including Secs. 761.30, 761.60, 761.61, 761.62, and
761.79. EPA believes that these two types of activities present
similarly minimal risk because of the quantities and concentrations of
the waste and the controlled environments in which the activities take
place.
Commenters sought to increase the maximum waste quantities approved
for disposal in a State-approved solid waste landfill, because larger
laboratories generate more waste than the maximum allowance and because
the small amounts of waste at issue would be difficult to track on an
annual basis. The intent of the minimum quantity was to provide some
regulatory relief for individuals who generate small quantities of PCB
waste, and provide incentives to minimize PCB laboratory waste
generation. Based on these comments, EPA has determined that the cost
of recordkeeping to demonstrate compliance with the annual maximum
amounts is not justified in terms of the potential increment of
additional waste above those amounts that would be disposed of each
year. Therefore, EPA has deleted the annual limit of 54 cubic feet in
volume or 1,000 kg in weight from the final rule. EPA still encourages
all disposers to practice waste minimization.
12. Restructuring disposal technology requirements. While many
commenters supported the proposed disposal technology requirements,
they stated that the proposed rule structure was confusing. Therefore,
in addition to adding the proposed disposal technolgies, EPA
reorganized subpart D to make the varius provisions easier to locate.
For example, EPA moved the technical and performance requirements for
high efficiency boilers, formerly in Sec. 761.60(a)(2) and (a)(3), to
new Sec. 761.71; and moved the requirements for industrial furnaces,
proposed at Sec. 761.60(a)(4), to new Sec. 761.72. Incinerator and
chemical waste landfill technical requirements remain in Secs. 761.70
and Sec. 761.75.
F. Storage for Disposal
1. One-year time limit and extensions. EPA proposed to allow
extension of the 1-year time limit for storage and disposal where the
persons storing the waste had been unsuccessful in their continuing
attempts to dispose of or secure disposal for their waste. EPA also
proposed to allow extension of the 1-year time limit as a condition of
a PCB disposal approval, based on such factors as lack of disposal
capacity, the absence of a treatment technology, or insufficient time
to complete the treatment or destruction process.
In today's rule, criteria for extending the 1-year time limit for
storage and disposal are being finalized as proposed with two changes.
First, PCB/radioactive waste removed from service for disposal is
excluded from the 1-year storage for disposal requirement provided that
continuing attempts to dispose of the waste are documented and the
waste is managed in accordance with all applicable Federal, State, and
local laws and regulations. PCB/radioactive waste that is exempt from
the 1-year storage for disposal time limit pursuant to
Sec. 761.65(a)(1) is also exempt from the exception reporting
requirements of paragraphs (c), (d), and (e) of Sec. 761.215 (the
provisions pertaining to the One-year Exception Report).
In addition, many commenters objected to initiating disposal
decisions 30 days after waste had been placed in storage for disposal,
as proposed in Sec. 761.65(a)(2)(iv). EPA did not intend
[[Page 35414]]
that generators make disposal decisions within 30 days from the date
their waste was first placed into storage for disposal. In the past,
the Agency has allowed generators 9 months (270 days) in which to get
their wastes to disposers and 90 days for disposers to dispose of the
PCB waste as outlined in Office of Enforcement and Compliance Assurance
TSCA Compliance Program Policy 6-PCB-6. In this final rule, as a
condition of obtaining a 1-year extension, the Agency is requiring
generators to demonstrate continuing attempts to obtain disposal for
PCB wastes 270 days after first placing their waste into storage for
disposal.
2. Facility requirements--a. Temporary storage of PCB liquid at 500
ppm or greater. Current Sec. 761.65(c)(1)(iv) allows temporary storage,
in an area that does not meet the requirements of Sec. 761.65(b), of
PCB Containers filled with liquid containing between 50 and 500 ppm
PCBs for up to 30 days from the date the liquids were removed from use.
EPA proposed to amend that section to allow temporary storage of PCB
containers filled with liquid containing PCBs at concentrations of 500
ppm or greater.
Several commenters asked that EPA extend the temporary storage
period from 30 to 90 days. The Agency originally proposed to allow
temporary storage of liquids greater than or equal to 500 ppm PCBs
because of generators consolidating PCBs prior to shipment to a
disposal facility. Since these consolidating activities were believed
to be of a short duration, EPA did not propose changes to the 30-day
time limit. EPA continues to believe that a 30-day time limit is
appropriate and therefore did not change it.
EPA is finalizing the 30-day temporary storage provision for liquid
PCBs at 50 ppm or greater, provided a Spill Prevention Countermeasure
and Control (SPCC) (40 CFR part 112) plan is in place and the liquid
waste is in stationary bulk storage tanks (including rolling stock such
as tanker trucks as specified by the Department of Transportation
(DOT)) or packaging authorized in the Hazardous Materials Regulations
(49 CFR parts 171 through 180) (see Sec. 761.65(c)(1)).
b. Storage of large PCB capacitors and PCB-Contaminated equipment
on pallets next to a qualified storage area. EPA proposed to delete the
provision allowing pallet storage at Sec. 761.65(c)(2). EPA reasoned
that the phaseout date (October 1, 1988, Sec. 761.30(1)) for most uses
of PCB Large High Voltage Capacitors had passed, and additional storage
space for this equipment was no longer needed. EPA also reasoned that
this provision was no longer needed for PCB-Contaminated Electrical
Equipment because it is typically drained prior to disposal and the
drained hull or carcass is not subject to Sec. 761.65.
Commenters unanimously disagreed, indicating that pallet storage is
still widely used. Many proactive companies in the electrical utility
industry and elsewhere have either reclassified their PCB Transformers
to less than 500 ppm PCB or have disposed of these units, leaving the
vast majority of their existing inventory of transformers in the 50 to
499 ppm PCB range or lower. When these units are taken out of service
for disposal they are stored on pallets prior to draining. In addition,
many large capacitors removed from restricted access areas are stored
on pallets prior to disposal. Commenters also pointed out that
eliminating this provision would create undue hardship by forcing them
to either expand their existing storage areas or to ship this waste to
another location. Therefore, EPA is not deleting the pallet storage
provisions from Sec. 761.65(c)(2).
c. Alternate storage of PCBs. EPA proposed to modify
Sec. 761.65(b)(2) to allow the storage of PCBs and PCB Items designated
for disposal in waste management units permitted by EPA under section
3004 of RCRA or by a State authorized under section 3006 of RCRA to
regulate the management of hazardous waste in containers. The proposed
rule would also have allowed the storage in units otherwise regulated
by a State under a TSCA look-alike law or approved as part of a PCB
disposal approval. EPA reasoned that the RCRA requirements for
permitted container storage units would provide an equal level of
protection as the TSCA requirements, and preclude an unreasonable risk
of injury from PCBs. Both require recordkeeping, waste tracking,
secondary containment, monitoring for leaks, inspections, and financial
assurance and closure requirements. The proposal did not extend to
units operating in interim status under RCRA. The proposal would also
have allowed PCBs, especially large volume wastes otherwise required to
be stored in compliance with this section, to be stored under the terms
and conditions specified in a PCB disposal approval.
Commenters generally favored the proposal, but some wanted EPA to
adopt other RCRA provisions, such as storage in facilities with interim
status and the 90-day accumulation period allowed for generators under
40 CFR 262.34. EPA's criteria for allowing PCBs to be stored other than
in a facility approved under Sec. 761.65(d) are that the permit must
cover the management of PCBs and have a financial assurance mechanism.
EPA is not allowing the storage of PCB waste in RCRA facilities
operating under interim status because the interim status permit only
applies to hazardous wastes and not to PCBs. Therefore, there would be
no financial assurance to cover corrective action pursuant to 40 CFR
264.101.
EPA is also adding three other scenarios where PCB waste could be
stored without a formal approval under Sec. 761.65(d) or meeting the
design criteria of Sec. 761.65(b). The first two scenarios are
facilities that are granted risk-based storage approvals under
Sec. 761.61(c) (PCB remediation waste) or Sec. 761.62(c) (PCB bulk
product waste). In both cases, the application for the storage approval
must include information, based on technical, environmental, and other
considerations, that the proposed storage method will not pose an
unreasonable risk to human health or the environment. The third
scenario is where a facility has a TSCA PCB Coordinated Approval, which
includes provisions for storage, issued pursuant to Sec. 761.77.
Any PCB waste spilled while stored at a RCRA facility must be
cleaned up in accordance with the PCB Spill Cleanup Policy (40 CFR part
761, subpart G).
d. Revision to storage unit criteria. EPA amended
Sec. 761.65(b)(1)(iv) for consistency with the new definition of
``porous surface'' at Sec. 761.3 which includes concrete and cement.
The existing rule, which refers to Portland cement and concrete as
``impervious,'' would have been inconsistent with the definition of
``porous surface.'' These references are not being deleted, however,
because this would cause all existing storage units that have used
Portland cement or concrete to be out of compliance. Section
761.65(b)(1)(iv), as amended, requires a storage facility to have
``floors and curbing constructed of Portland cement, concrete, or a
continuous, smooth, non-porous surface as defined at Sec. 761.3 of this
part, which prevents or minimizes penetration of PCBs.'' EPA
recommends, however, that nonporous surfaces be used for curbing and
flooring for storage units since cleanup of non-porous surfaces is
easier and less costly. EPA also recommends that porous surfaces be
rendered non-porous by coating them with an epoxy sealant.
3. DOT containers for storage of PCB waste. EPA is adopting DOT
container requirements for PCB storage, transportation, and disposal
(see Secs. 761.60(b)(2)(vi) and 761.65(c)(6)), by eliminating citations
to specific
[[Page 35415]]
container type and cross-referencing the new performance-based DOT
Hazardous Material Regulations (HMR) container requirements (see 49 CFR
parts 171 through 180).
While this change will simplify regulatory compliance, individuals
must keep in mind that EPA regulates storage of PCB waste in non-
transportation situations, and additional marking requirements at
Sec. 761.40 are still in effect. In addition, because of the anti-
dilution provision at Sec. 761.1(b)(5), EPA may regulate PCB waste at a
much lower concentration than DOT. Therefore, EPA may require some PCB
waste not subject to the DOT regulations (i.e., less than 20 ppm or <1
pound of PCBs regardless of concentration) to be packaged in accordance
with the DOT HMR (e.g., 49 CFR 173.203 (for liquids) or 173.213 (for
non-liquids)), that is, in DOT authorized containers.
PCBs are listed in Packing Group II of the Hazardous Materials
table at 49 CFR 172.101. However, under the HMR, PCBs that are
transported by highway or rail need only be packaged pursuant to
Packing Group III. PCB/radioactive waste, PCB/mixed waste, and PCB/
hazardous waste not packaged in accordance with the HMR are not allowed
to be transported. Additionally, the HMR as amended on December 21,
1990 (55 FR 52402) prohibits the construction of DOT specification
packaging previously designated for PCB waste storage (i.e., DOT
Specification 5, 5B, 6D, 17C, 17E, and 17H containers) effective
October 1, 1994. Further, transportation of PCBs in these outdated DOT
specification containers is not authorized beyond September 30, 1996,
unless they were filled prior to, and not emptied and refilled after,
October 1, 1996 (see 49 CFR 171.14(a)(2)).
Several commenters argued that EPA should continue to allow the use
of these old DOT specification containers for storing PCBs in
situations not subject to DOT regulations. Some companies have invested
in inventories of these old specification containers that would be
expensive to replace. The Department of Energy noted that it has large
quantities of non-fissionable PCB/radioactive waste in storage that
would have to be repackaged. EPA relied for many years on the stringent
standards in the old DOT specifications, and believes the continued use
of containers meeting these specifications for non-DOT applications
will not pose an unreasonable risk to health or the environment.
Therefore, EPA is allowing such use to continue at
Sec. 761.65(c)(6)(ii).
EPA received comments that it should continue to list at
Sec. 761.65(c) all containers authorized by DOT. EPA believes such an
approach would defeat EPA's objectives of providing flexibility to
industry and minimizing the resource burden associated with updating
the PCB regulations each time DOT modifies its requirements. Most
commenters supported EPA's proposal to cross-reference DOT regulations
instead.
The final rule also amends Sec. 761.60(b)(2)(vi) to conform to the
new DOT container requirements. A commenter misunderstood the effect of
the change to this section and expressed concern that EPA is making a
new allowance for PCB Capacitor disposal at Sec. 761.60(b)(2)(vi). This
is not the case. Section Sec. 761.60(b)(2)(vi) is an existing provision
which is being modified only with respect to container specifications.
Readers of today's final rule should keep in mind that the PCB
Capacitors described in Sec. 761.60(b)(2)(vi) of the regulatory text
may not be disposed of in a chemical waste landfill unless the
Assistant Administrator for Prevention, Pesticides and Toxic Substances
first authorizes their disposal pursuant to existing
Sec. 761.60(b)(2)(v).
4. PCB/radioactive waste. The proposed rule defined ``PCB/
fissionable radioactive waste or PCB/radioactive waste'' as ``PCBs
regulated for disposal under subpart D of part 761 that also contain
fissionable radioactive material or radioactive material subject to
regulation under the Atomic Energy Act of 1954 as amended.'' At the
suggestion of comments, EPA is clarifying the definition by deleting
the reference to ``PCB/fissionable radioactive waste,'' maintaining the
term ``PCB/radioactive waste,'' and including PCBs regulated for
disposal that also contain source, special nuclear, or byproduct
material that is subject to the Atomic Energy Act of 1954 as amended,
or naturally occurring or accelerator produced radioactive material.
The Agency also proposed to allow PCB/radioactive waste to be
stored for longer than 1 year if the storer requested and received an
extension. Several commenters indicated that since there is inadequate
disposal capacity for PCB/radioactive waste, EPA should not require
generators of such waste to undertake the process of requesting and
obtaining 1 year extensions. The Agency agrees and, in addition, has
exempted PCB/radioactive waste from the 1 year storage for disposal and
exception reporting requirements (see Sec. 761.65(a)).
EPA proposed to allow PCB/radioactive waste to be stored in
containers other than those meeting the DOT performance standards and
to not require a minimum 6-inch high curbing for PCB/radioactive waste.
EPA received no comments on these proposals and they are finalized as
proposed (see Sec. 761.65(c)(6)(i) and Sec. 761.65(b)(1)(ii)).
5. Changes in ownership or operational control. See Unit IV.M.6. of
this preamble.
6. Dating and inspection of PCB Article Containers. PCB Articles
and PCB Containers must be checked periodically for leaks (see
Sec. 761.65(c)(5)), and dated when they are placed into storage (see
Sec. 761.65(c)(8)). PCB Article Containers, however, were not included
in Sec. 761.65(c)(5) and (c)(8), creating a loophole that allows a
storage unit owner to omit dating and inspecting these containers and
to circumvent the 1-year storage and disposal time limit. EPA proposed
in the NPRM to correct this oversight by replacing the phrase ``PCB
Articles and PCB Containers'' with ``PCB Items'' wherever it occurs in
Sec. 761.65(c)(5) and (c)(8). The definition of ``PCB Item'' at
Sec. 761.3 includes PCB Article, PCB Article Container, PCB Container,
PCB Equipment and anything else that contains PCBs. No significant
comments were received on this proposal, and EPA is finalizing the
modification as proposed.
G. TSCA PCB Coordinated Approvals
In both the ANPR, and the NPRM, EPA solicited comments regarding a
provision which would allow it to recognize certain other Federal or
State waste management documents governing the storage, cleanup,
treatment and disposal of PCB wastes. The reasons for developing such a
provision were to eliminate duplicative approval processes (i.e.,
modifying the requirement to issue a TSCA PCB approval), to foster
communications and coordination among Federal and State environmental
officials, and to ensure a more efficient use of limited resources.
Permits or approvals from other state or Federal programs often are
required for the storage or disposal of the PCB waste. For example,
placement of dredged material in upland environments is a disposal
option at many navigation projects, for environmental and economic
reasons. The U.S. Army Corps of Engineers evaluates placement of
dredged material in upland facilities, including evaluation of the
potential contaminant pathways from the dredged material placement
operation. These placement operations are subject to the permit
requirements of section 10 of the Rivers and Harbors Act of 1899,
taking into account EPA's Clean Water Act section 404(b)(1) Guidelines
and the
[[Page 35416]]
National Environmental Policy Act (Ref. 26).
Where the dredged material also contained regulated PCBs, its
management and disposal would be subject to TSCA. Management and
disposal of dredged material containing <50 ppm PCBs, based on a permit
or authorization issued by the U.S. Army Corps of Engineers under
section 404 of the Clean Water Act or section 103 of the Marine
Protection, Research, and Sanctuaries Act, is an authorized disposal
option under Sec. 761.61(b)(3). Except in accordance with the self-
implementing provisions of Sec. 761.61(a), management and disposal of
dredged material with a higher PCB concentration, or material disposed
of in an upland facility with no return flow to waters of the United
States, would be subject to TSCA approval requirements. The disposer
could avoid the requirement to get a separate TSCA approval if a
coordinated approval were granted based on a permit issued under the
Clean Water Act, Marine Protection, Research and Sanctuaries Act,
Rivers and Harbors Act, or other applicable authority.
Under existing requirements, a TSCA PCB approval is required
generally for the commercial storage and disposal of PCB wastes at 50
ppm or greater. There are, however, limited scenarios where a TSCA PCB
approval is not applicable, such as the on-site cleanup and disposal of
PCBs under the CERCLA Superfund program.
Some commenters supported the coordinated approval provision,
because ``better coordination with existing State authorities should be
encouraged'' and ``greater flexibility will be provided to generators
for the disposal of PCBs,'' but they also identified concerns. Of those
in favor, most preferred the self-implementing approach over the
interactive procedures, believing that a detailed TSCA review of
permitted RCRA or State PCB program activities is not necessary. EPA
has retained the interactive approach to ensure that a review under the
TSCA authority is accomplished prior to, rather than after, the
initiation of the proposed PCB disposal activity. A prior review was
not included in the self-implementing approach, which would have
allowed individuals to commence their PCB disposal activities
immediately after completing three steps: obtaining an EPA
identification number (or confirming an existing number), notifying the
EPA Regional Administrator of their preference to use another waste
management document, and receiving written confirmation from the EPA
Regional Administrator that the notice had been received. Although a
detailed review may not be necessary, the Agency believes the success
of the coordinated approval process lies in appropriate coordination
and consultation with the other waste management authority to ensure
few opportunities exist for the mismanagement of PCB wastes. Therefore,
EPA chose the interactive approach because the Agency believes that the
costs of the additional administrative requirements are outweighed by
the increased level of environmental protection possible under this
approach.
One commenter cautioned EPA about losing its ability to exercise
national oversight over the PCB program if hybrid State permits replace
TSCA permitting requirements. A slightly different point of view was
expressed by one commenter who suggested that Federal oversight should
be kept to a minimum if States choose to address PCB wastes using State
authorities. Other commenters opposed the proposal as unnecessary and
resulting in: (1) Differential treatment of facilities currently
holding TSCA approvals (i.e., not all facilities would be held to the
same standards); (2) confusion regarding TSCA and RCRA labeling and
storage requirements placing generators, storers, and disposers in
``double jeopardy''; and (3) State programs which may be more stringent
or overly protective.
EPA recognizes that the coordinated approval may not be a perfect
solution to the problem of duplicative permitting requirements. To take
advantage of the coordinated approval, a facility could rely on a valid
waste management permit/approval issued under a Federal law that is
administered in whole or in part by the Administrator. Although the
standards under these different authorities may vary, they do serve to
eliminate or reduce the risks to health or the environment from
exposure to PCBs. The process is voluntary; individuals are not
required to obtain a TSCA PCB Coordinated Approval. The coordinated
approval provision may also be appropriate for PCB waste management
documents which have been issued pursuant to regulations that have been
promulgated by a State for the disposal of PCBs. Implementation of the
coordinated approval process using the interactive approach will ensure
the other waste management permit/approval is consistent with the basic
principles of the TSCA PCB disposal program.
In regard to the point that States may be more stringent or overly
protective, commenters suggested that EPA should preempt State and
local standards for PCBs. 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).
Although several commenters recognized that the option to regulate
the disposal of PCBs at the State level currently exists under either a
TSCA look-alike program or an expanded RCRA hazardous waste program, no
unanimity existed on which approach was preferred. Some commenters felt
the TSCA PCB Coordinated Approval was the equivalent of a Federal
mandate. Commenters were not in favor of State PCB programs because of
the potential inconsistency in standards and regulatory requirements
which could complicate compliance, create confusion, result in higher
costs and excessive burden to the regulated community and unnecessarily
impede interstate commerce.
Section 761.77 is not a Federal mandate. EPA is not requiring any
State to develop a TSCA look-alike program or to expand its RCRA
hazardous waste program to include PCBs. However, any State may pursue
either option, provided, for TSCA look-alike programs, that the
requirements are at least as stringent in the protection of health and
the environment as the applicable TSCA requirements, and under expanded
hazardous waste programs or any State program that has been approved by
EPA, the risks of injury to health or the environment from PCBs are
eliminated or reduced by actions taken under those authorities. The
TSCA PCB Program is not delegable, and EPA is not delegating
responsibility for implementing TSCA section 6(e) to the States. The
TSCA PCB Coordinated Approval provides a mechanism for Federal and
State environmental officials to better coordinate PCB activities,
maximize diminishing resources, incorporate flexibility and reduce
oversight of States which demonstrate the ability to monitor PCB
activities.
EPA has retained the coordinated approval provision, but has
modified it in light of comments. One commenter suggested EPA include a
definition for TSCA PCB Coordinated Approval. EPA agrees and has added
the definition in Sec. 761.3.
A number of comments questioned the applicability of a TSCA PCB
Coordinated Approval at CERCLA remediation sites. Proposed
Sec. 761.77(g), which addressed on-site remediation activities
conducted under CERCLA, has been deleted. EPA did not intend to suggest
that a TSCA approval would be
[[Page 35417]]
required for CERCLA on-site remediation and disposal activities.
EPA also clarifies that revocation of a TSCA PCB Coordinated
Approval will be based solely on those PCB activities covered by the
non-TSCA approval that serve as the technical or legal basis for the
coordinated approval, i.e., are related to the management of PCBs. For
example, a determination to issue a notice of deficiency or to revoke
the TSCA PCB Coordinated Approval may be based on, but is not
necessarily limited to: (1) Non-compliance with Sec. 761.77(b) and (c);
(2) operation of the approved PCB waste management process in a manner
which may result in an unreasonable risk of injury to health or the
environment; (3) failure to comply with, expiration of, or revocation
of the non-TSCA approval or of the program under which the non-TSCA
approval was issued; and (4) for CERCLA off-site actions, lack of
completion of requirements conducted pursuant to CERCLA decision and
enforcement documents issued by EPA that apply to off-site PCB waste
management activities, or failure of the owner, operator or responsible
party to comply with conditions of the decision and enforcement
documents that apply to PCB waste management activities. EPA also
clarifies that before it revokes a TSCA PCB Coordinated Approval, it
will, as a matter of policy, consult with the authority that issued the
underlying non-TSCA approval. EPA is not required, however, to seek or
obtain the agreement or concurrence of the issuing authority prior to
revoking a TSCA PCB Coordinated Approval.
Finally, permits issued by regulations found in title 40 of the
CFR, such as those authorized under RCRA at Sec. 270.60, may be covered
under the coordinated approval provision.
H. Decontamination
In today's rule, EPA is finalizing the decontamination regulations
as proposed in Sec. 761.79 with modifications resulting from public
comments and EPA's scientific studies. The Agency clarifies that: (1)
Decontamination standards and procedures can be used for disposal and
decontaminated materials can be distributed in commerce, used or
reused; (2) specified decontamination activities no longer need a PCB
disposal approval; (3) materials meeting the applicable decontamination
standards or procedures are unregulated for disposal under subpart D of
part 761; and (4) most wastes and residues from decontamination
activities can be managed based on their existing PCB concentration.
EPA clarifies that when contaminated PCB materials are sent off-site
for decontamination, they must be manifested to a commercial PCB storer
or disposer.
In the NPRM (59 FR 62800), EPA proposed for non-porous surfaces the
decontamination standard in EPA's Spill Clean-up Policy (i.e., less
than or equal to 10 micrograms PCB per 100 centimeters squared), and
two non-aggressive decontamination procedures using kerosene as an
alternative to decontamination followed by confirmatory sampling. The
Agency also proposed to waive TSCA disposal approval requirements for a
number of specified decontamination activities while requiring measures
to be taken to prevent releases of PCBs to the environment and to
protect workers against dermal contact or inhalation. The Agency
solicited comment on including distillation as a decontamination
activity. After using an EPA specified decontamination procedure, the
decontaminated surface would not be regulated for disposal and could be
reused except in association with food, feed, or drinking water in
accordance with proposed Sec. 761.20(c)(5). The Agency also clarified
that disposal of materials used in decontamination, such as abrasives,
solvents, and equipment is regulated. EPA further proposed that certain
solvents could be disposed of in industrial boilers. Finally, the
Agency proposed a decontamination level for water consistent with EPA's
drinking water standard to ensure that the reuse of decontaminated
water is safe.
The final decontamination regulations at Sec. 761.79 establish
measurement-based decontamination standards for removing PCBs from
water, organic liquids, non-porous surfaces, concrete, and non-porous
surfaces in contact with non-liquid PCBs (including non-porous surfaces
covered with a porous surface, such as paint or coating on metal). EPA
is finalizing the self-implementing decontamination procedures for non-
porous surfaces in contact with mineral oil dielectric fluid (MODEF)
and providing a mechanism for allowing other performance-based
procedures and solvents to be used in decontamination of materials
contaminated with MODEF or other PCB liquids. The final rule clarifies
that thermal processes as specified in Sec. 761.72 may be used to
decontaminate metal surfaces. Additionally, EPA moved the
decontamination of air compressor systems, formerly in
Sec. 761.60(b)(5), to the performance-based provisions of Sec. 761.79.
EPA has maintained the general provisions from the proposal
requiring persons conducting decontamination activities to protect
against direct releases of PCBs to the environment and to protect
workers from dermal contact or inhalation of PCBs or materials
containing PCBs. Although many commenters felt that these requirements
were duplicative of OSHA standards, EPA believes that they are
necessary. First, OSHA standards do not apply to all settings where
decontamination activities may occur. Second, because EPA is no longer
requiring PCB disposal approvals for specified decontamination
activities, these general safety standards will ensure there is no
unreasonable risk of injury to health or the environment from
decontamination activities.
The decontamination procedures in Sec. 761.79 do not apply to all
wastes. For example, they do not apply to intact electrical equipment
such as transformers, voltage regulators, capacitors, and rectifiers.
The surface areas in this kind of equipment are very large and may have
numerous laminations with a high contact, low volume space limiting the
solvent contact necessary for complete decontamination. In addition,
electrical equipment may contain porous components such as wood. Since
most porous materials cannot be adequately decontaminated, the
decontamination procedures generally do not apply to porous surfaces
(except for non-porous surfaces covered with a porous surface, such as
paint or coating on metal, which can be decontaminated by removing the
paint or coating, leaving only a non-porous surface meeting the
standards in Sec. 761.79(b)(3)). Finally, today's decontamination
procedures are not appropriate for or applicable to wastes such as
soil, debris, and sediments.
Commenters suggested a number of specific decontamination methods.
Some also wanted a mechanism for EPA to approve additional methods in
the future. EPA has added the distillation of PCBs from contaminated
solvents, oil/water separation, and scarification of surfaces to the
decontamination procedures under Sec. 761.79 which do not need a PCB
disposal approval. The Agency agrees with comments that potential air
release concerns associated with distillation will be adequately
addressed by the Clean Air Act and RCRA. The decontamination methods no
longer requiring a PCB disposal approval now are: chopping (including
wire chopping), distilling, filtering, oil/water separation, spraying,
soaking, wiping, stripping of insulation, scraping, scarification, the
use of abrasives or solvents to remove or separate PCBs from
contaminated non-porous surfaces or liquids, or thermal
[[Page 35418]]
processes in accordance with Sec. 761.72. Some specific methods
mentioned in the comments, such as physical abrasion, surfactant
cleaning, and hydroblasting fit these general decontamination
categories. EPA did not include some methods suggested by commenters
because the efficacy of the suggested method was not demonstrated, or
because EPA did not believe there was a way to easily contain a release
of PCBs to the environment. The decontamination procedures listed in
Sec. 761.79 will not pose an unreasonable risk because the procedures
that create the potential for release of PCBs would do so in airborne
dust, which can be controlled through standard industrial practices.
Section 761.79(e) also requires persons conducting decontamination
activities to protect against release of PCBs to the environment and
requires workers to wear equipment to protect against dermal or
inhalation contact from PCBs. Persons wishing to conduct
decontamination methods not covered by Sec. 761.79 must obtain a PCB
disposal approval.
EPA is allowing contaminated water to be decontaminated to
different concentration levels specified in Sec. 761.79(b)(1) depending
on its subsequent use, reuse, or disposal. EPA has finalized the
proposed decontamination standard for water of <ls-thn-eq>0.5
micrograms PCBs per liter. Under Sec. 761.30(u)(3), water meeting this
decontamination standard may be reused without restriction. Many
commenters requested a higher standard where water would not be used
for drinking water, food or feed, such as when the water would be
subject to the Clean Water Act standards for direct or indirect
discharges or used as non-contact cooling water in an industrial
setting. EPA has responded to these comments by including in
Sec. 761.30(u)(4) a provision allowing water containing less than 200
micrograms per liter (approximately 200 ppb), the maximum water
solubility of common Aroclor formulations of PCBs, to be used in
industrial processes where there is no release from the process (e.g.,
as a non-contact cooling water). In addition, EPA has specified in
Secs. 761.50(a)(3) and 761.79(b)(1)(ii) that water containing PCBs may
be discharged to a treatment works (as defined in regulations at 40 CFR
503.9(aa) implementing the Clean Water Act) or to navigable waters if
the PCB concentration is less than 3 <greek-m>g/L (approximately 3
ppb), or in accordance with a PCB discharge limit included in a permit
issued under section 307(b) or 402 of the Clean Water Act. The
processes for regulating discharges under the Clean Water Act are
adequate to protect against an unreasonable risk from exposure to PCBs.
Where PCBs are not specifically subject to a discharge limit, the final
rule incorporates the 3 <greek-m>g/L level historically used to
regulate discharges of PCBs, both in specific PCB disposal approvals
under part 761 and in regulations governing industrial processes that
recycle PCB-Contaminated raw materials.
The final rule establishes a decontamination standard for organic
liquids and non-aqueous inorganic liquids containing PCBs of less than
2 milligrams per kilogram (i.e., <2 ppm PCBs). EPA revised the proposed
organic liquids standard from less than 2 milligrams per liter to less
than 2 milligrams per kilogram by weight to be more consistent with PCB
concentration measurements required in Sec. 761.1(b)(2).
The final rule includes decontamination standards for non-porous
surfaces (See Sec. 761.79(b)(3)). The decontamination standard for non-
porous surfaces in contact with liquid PCBs at concentrations
<gr-thn-eq>500 ppm for unrestricted use is <ls-thn-eq>10 <greek-m>g/100
cm<SUP>2</SUP> and for smelting in an industrial furnace operating in
accordance with Sec. 761.72(b) is <100 <greek-m>g PCB/100
cm<SUP>2</SUP>. Surface PCB concentrations are measured using a
standard wipe test as defined at Sec. 761.123. In response to comments,
EPA added two decontamination standards for non-porous surfaces in
contact with non-liquid PCBs, such as painted or coated metal, after
removal of the coating. These surfaces may be decontaminated for
unrestricted use in accordance with National Association of Corrosion
Engineers (NACE) Visual Standard No. 2, Near-White Blast Cleaned
Surface Finish, and decontaminated for smelting in an industrial
furnace (operating in accordance with Sec. 761.72(b)) using NACE Visual
Standard No. 3, Commercial Blast Cleaned Surface Finish, and verified
by visual inspection of all cleaned areas (Refs. 27 and 28).
Under Sec. 761.79(c)(2), the Agency is allowing movable equipment
and tools to be decontaminated by swabbing, a double rinse/wash as
specified in Sec. 761.123, or another applicable decontamination
standard or procedure in Sec. 761.79.
Several commenters sought other provisions available through EPA's
Spill Clean-up Policy for cleaning up recent PCB spills, particularly
for concrete and other porous surfaces. EPA has added a decontamination
standard of <ls-thn-eq>10 <greek-m>g/100 cm<SUP>2</SUP> for concrete
that has been contaminated within 72 hours. EPA has not established
decontamination levels for other porous materials such as wood, or for
older spills on concrete, because of the likelihood that the materials
have absorbed PCBs which cannot be adequately removed. These materials
may be used, subject to the use authorization at new Sec. 761.30(p), or
disposed of in accordance with 40 CFR part 761, subpart D.
EPA has also finalized the self-implementing decontamination
procedures for non-porous surfaces contaminated with MODEF with some
modifications (see Sec. 761.79(c)) (Ref. 29). Many commenters wanted to
use additional decontamination solvents. EPA has included other organic
solvents having similar properties to kerosene in performance-based
decontamination options. EPA conducted scientific studies to evaluate
decontamination of impervious surfaces with aqueous-based solvents
(Ref. 30).
Based on EPA's limited performance-based validation testing, EPA is
providing a self-implementing procedure under Sec. 761.79(d)(4) to
qualify additional decontamination fluids for decontaminating non-
porous surfaces contaminated with MODEF or other PCB liquids (see
subpart T). EPA tested several solvents for use in accordance with
performance-based decontamination under Sec. 761.79(c)(3) and (c)(4).
EPA did not intend its testing to be limiting, but did not test all
potential solvents under all potential conditions. EPA only used MODEF
as a surface spiking solution for convenience and because it was
expected to be one of the most common sources of PCB contamination on
surfaces. Testing results indicated that other solvents and other
conditions could be acceptable for decontaminating surfaces that are
contaminated with PCBs.
The final rule also includes a self-implementing procedure for
decontamination of metal surfaces using thermal processes in accordance
with Sec. 761.72, depending on the PCB concentration (see
Sec. 761.79(c)(6)). Some surfaces decontaminated using these procedures
may then be unregulated for disposal or use.
EPA is not finalizing all of the performance-based decontamination
procedures for air compressor systems (proposed at
Sec. 761.30(i)(3)(i)). Commenters generally stated that the self-
implementing procedures for cleaning air receivers and other
pressurized large volume tanks by rotation were impracticable, and
these provisions are not included in the final rule. Several types of
spray equipment for cleaning large volume tanks are on the market, but
the potential operating conditions are too varied to allow EPA
[[Page 35419]]
to establish uniform, self-implementing protocols. Spraying is,
however, an authorized decontamination method under Sec. 761.79(b), as
long as the decontamination levels specified in that section are met
and confirmed by sampling. In addition, the final rule includes a
provision at Sec. 761.79(h) allowing the EPA Regional Administrator to
approve decontamination or sampling methods not specifically described
elsewhere in Sec. 761.79 based on a finding of no unreasonable risk.
The final rule does include self-implementing decontamination
procedures for piping and air lines of air compressor systems.
Commenters raised concerns about the use of kerosene and other
prescribed conditions for this equipment. In response, EPA is allowing
the use of additional organic and aqueous solvents based on data
submitted by commenters, and based on EPA's experience with the
regulated community's use of these solvents in accordance with PCB
disposal approvals issued under Sec. 761.60(e). For decontamination
using other solvents or conditions, follow the appropriate provisions
of Sec. 761.79(d)(4) and subpart T or seek a PCB disposal approval.
EPA clarifies that self-implementing, performance-based
decontamination conducted under Sec. 761.79(c) does not require
confirmatory surface measurements (see Sec. 761.79(f)). However, anyone
claiming that a surface is decontaminated must be able to substantiate
that claim in writing. Subpart N provides sampling procedures for water
and organic liquids. Subpart P provides sample site selection
procedures for non-porous surfaces and concrete decontaminated from
recent spills, as well as procedures for analyzing the samples and
interpreting the results of the sampling. When sampling is required for
the measurement-based provisions in Sec. 761.79(b), written records
must be maintained for 3 years from the date of decontamination. Copies
of records may be maintained at the decontamination site or elsewhere
as long as they are available to EPA in a timely manner, if requested.
EPA also clarifies that solvents contaminated during use in
decontamination are to be managed and used at their existing
concentration (see Sec. 761.79(g)). Unless specifically addressed
elsewhere, disposal options do not depend on the original concentration
of PCBs in the material which is decontaminated. EPA is requiring
chlorinated solvents used for decontamination to be disposed of as PCB
waste regardless of their concentration in order to discourage their
use and to minimize adverse consequences from uncontrolled air
releases. However, EPA is allowing chlorinated solvents, other
contaminated solvents, liquids, or non-liquids resulting from
decontamination activities to be decontaminated to the extent permitted
under Sec. 761.79. Hydrocarbon solvents containing <50 ppm PCBs may
also be burned and marketed in accordance with the used oil provisions
of Sec. 761.20(e). Because used oils are composed primarily of
hydrocarbons, burning of hydrocarbon solvents will pose a similar, not
unreasonable, risk to burning of used oils. One commenter asked whether
hydrocarbon solvents which are also radioactive could be burned for
energy recovery under the used oil provisions of Sec. 761.20(e) if the
combustion facility was approved or licensed for burning radioactive
waste. Today's regulations do not preclude this activity.
Finally, wastes resulting from decontamination activities are
subject to applicable manifesting, storage, and disposal requirements
for PCB wastes. Facilities conducting decontamination activities must
also comply with recordkeeping, reporting, and notification
requirements of subparts J and K.
I. Exemptions for Manufacturing, Importing, Processing, Distributing in
Commerce, and Exporting PCBs
1. Class exemption for manufacture, import, processing,
distribution in commerce, and export of PCBs for R&D. EPA proposed the
establishment of a class exemption at Sec. 761.80(i) to allow
processing and distribution in commerce for R&D of PCBs and PCB
analytical reference samples derived from PCB waste material. EPA
proposed this class exemption to minimize negative impacts from the
relatively time-consuming statutory and regulatory process for
individual companies seeking an exemption from the prohibition on
processing and distributing in commerce of PCBs.
Overall, commenters agreed with the establishment of a new class
exemption to facilitate the use of PCBs in R&D. However, they suggested
that EPA and the scientific community would be better served if the
class exemption also included the manufacture of PCBs for R&D. EPA
agrees and has added manufacture of PCBs to Sec. 761.80(i). EPA has
also modified the text of proposed Sec. 761.80(i) to specify that
import and export of these materials are also covered by the exemption.
All individuals who wish to be included in the class exemption will be
required to submit a notification in the form of a petition to the
Agency. EPA will treat a renewal request submitted by any one class
member 6 months prior to the expiration of the 1-year exemption as a
renewal request for the entire class (see the procedures at 40 CFR part
750, subpart C and Sec. 750.31(e)).
EPA is limiting the manufacturing, import, processing, distribution
in commerce, and export of PCBs to no more than 500 grams of PCBs
annually, packaged in 5 milliliter hermetically sealed containers. EPA
is also limiting the processing, distribution in commerce, and export
of analytical reference samples derived from PCB waste material to 500
grams of PCBs annually. Individuals wishing to temporarily exceed these
limitations must notify the Director, National Program Chemical
Division, in writing, of the sites and quantities involved, and provide
a justification for an increase. Any increase granted will be in
writing and will not extend beyond the time remaining in the exemption
year. Persons needing an increase on other than a temporary basis are
required to obtain an individual exemption which addresses their
specific needs. Until EPA has completed rulemaking on a request for an
individual exemption, individuals may continue their PCB activities,
but are limited to the constraints of the existing class exemption.
The establishment of the class exemption at Sec. 761.80(i) does not
affect any manufacturer, processor, distributor or exporter previously
granted an exemption under existing Sec. 761.80(c), (f), (g), or (h).
Those individuals will not be required to modify or discontinue the
activity for which their exemption was granted at this time. In
addition, EPA will consider individuals who have obtained exemptions
under Sec. 761.80(c), (f), and (h) to manufacture, process, distribute
in commerce, or export PCBs for R&D in quantities of 500 grams or less,
to be grandfathered into the class exemption at Sec. 761.80(i) without
the submission of a petition at this time. However, if those
individuals increase the quantity of PCBs (beyond 500 grams), change
the manner of manufacture, processing, or distribution in commerce of
the PCBs, or any other aspect of the existing exemption, they must
submit a new petition.
EPA is also allowing processors and distributors of PCBs in small
quantities for R&D currently authorized by Sec. 761.80(g) to continue
their activity unchanged unless they wish to exceed the 100 gram limit.
At that time, they can follow the notification procedures of
Sec. 761.80(g)(2), or submit a petition
[[Page 35420]]
within the Sec. 761.80(i) timeframe, which would allow them to increase
their limit to 500 grams.
Today's rule also allows research and development for PCB disposal
under certain conditions (see Sec. 761.60(j)). Processing and
distribution in commerce of PCBs associated with R&D for disposal are
regulated under existing provisions at Sec. 761.20(c). Persons engaging
in processing and distribution in commerce of PCBs for this disposal
activity need not request an exemption under Sec. 761.80.
2. Class exemption for manufacturing PCBs for research and
development of disposal technologies. EPA proposed at Sec. 761.80(e) to
establish a class exemption allowing R&D facilities to manufacture
(including import) PCBs solely for the manufacturer's own research to
develop PCB disposal technologies. This provision has been included in
the final rule. For purposes of Sec. 761.80(e), use ``solely in the
manufacturer's or importer's own research'' means use by the
manufacturer or importer or one of its wholly-owned subsidiaries
conducting disposal-related R&D. However, distribution of the PCBs that
are manufactured under this exemption to other entities for their R&D
activities is prohibited. All PCBs and materials containing PCBs,
regardless of concentration, remaining from the disposal-related
studies, are required to be disposed of or decontaminated pursuant to
the original PCB concentration.
EPA is limiting PCB manufacturing, including import, activities
under this exemption to 500 grams (approximately 1 pound (lb)) of PCBs
per year. Commenters suggested EPA increase the quantity from 1 lb to
10 lbs to better serve the scientific community in conducting R&D for
disposal-related activities. EPA considers 500 grams an ample R&D
quantity for a year because PCBs are generally used in extremely small
quantities (i.e., micrograms) during these activities. Individuals
wishing to exceed this amount on a temporary basis must request and
receive approval, in writing, from the Director, National Program
Chemicals Division. To ensure that PCB manufacture under Sec. 761.80(e)
is being conducted for R&D into PCB disposal, EPA is requiring that the
EPA Regional Administrator be notified in writing 30 days prior to the
start of R&D activities requiring the manufacture of PCBs. This
conforms with the Sec. 761.60(j)(1)(ii) notification requirement.
A person wishing to be included in the class exemption at
Sec. 761.80(e) must submit an exemption petition to EPA 60 days prior
to engaging in activities under the exemption. Renewals of or
modifications to the exemption are required annually pursuant to the
interim procedures for manufacturing exemptions at Sec. 750.11 or
processing and distribution in commerce exemption at Sec. 750.31. To
reduce the paperwork burden of the renewal process for the class, EPA
will deem a properly filed renewal request for the exemption by any
member of each class as a renewal request for the entire class.
3. Other exemption issues. EPA proposed modifications to
Sec. 761.80(g) which it is not adopting in today's final rule. One
modification correlated with a proposed change in the ``small
quantities for research and development'' definition at Sec. 761.3;
however, the proposed modification is moot because EPA is not
finalizing the proposed definitional change. In addition, EPA intended
to expand the existing class exemption at Sec. 761.80(g) to include
distribution in commerce for export. However, such distribution in
commerce may be conducted under Sec. 761.80(i) as finalized, and
additional modification of Sec. 761.80(g) is therefore no longer
necessary. Similarly, proposed changes to Sec. 761.80(o) regarding
exemption renewals under Sec. 761.80(g) have been rendered moot by
changes from the proposal. EPA also is not finalizing proposed
modifications to Sec. 761.80(n) regarding renewals of the new class
exemption at Sec. 761.80(e); these provisions are in the text of
Sec. 761.80(e).
Many of the newly created provisions for exemptions to process and
distribute PCBs in commerce direct readers to the petition filing
procedures at 40 CFR 750.31. EPA discovered a drafting error in
Sec. 750.31(c), ``Content of petition,'' from a previous amendment.
Therefore, EPA is promulgating a technical correction to delete
references at Sec. 750.31(c)(9) to paragraphs which no longer exist
(i.e., ``(d)(1) through (8)'' and ``(d)(1), (3) and (5)''). These
references should have been redesignated as paragraphs ``(c)(1) through
(8)'' and ``(c)(1), (3) and (5)'' when Sec. 750.31 was amended on April
11, 1994.
To grant an exemption under section 6(e)(3)(B) of TSCA, EPA must
find that there is no unreasonable risk of injury to health or the
environment from the exempted activity and that good faith efforts have
been conducted to find a substitute for PCBs.
EPA finds that the manufacture, import, processing, distribution in
commerce, and export of PCBs in accordance with Sec. 761.80(e) and (i)
will not result in an unreasonable risk of injury to health or the
environment. The risk of environmental release of PCBs or risks of
exposure to PCBs is negligible due to OSHA workplace safety
regulations, the highly-trained nature of laboratory workers and
scientists, the limitation on the volume of production, DOT
transportation regulations, and the current marking regulations that
require containers to be labeled as containing PCBs (also see the
discussion in the NPRM). Finally, all wastes from PCB processing,
including diluted PCB materials and any PCB residues or other
contaminated media, are subject to the 1-year storage and disposal time
limits at Sec. 761.65 and Sec. 761.60 and the manifesting requirements
at Sec. 761.207 et seq.
The good faith efforts finding does not apply because other
chemicals cannot be substituted in toxicological, environmental, or
analytical testing for PCBs.
J. Transboundary Movements
1. The import for disposal rule and the Sierra Club decision. In
the NPRM, EPA proposed to control the export and import of PCBs for
disposal under Sec. 761.20. Subsequently, the PCB import regulations
were separated from the larger rulemaking package and finalized on
March 18, 1996 (61 FR 11096) (FRL- 5354-8), at Sec. 761.93 under a new
subpart F - Transboundary Shipments of PCBs for Disposal. On July 7,
1997, the U.S. Court of Appeals for the Ninth Circuit overturned the
Import for Disposal Rule, on the ground that EPA could not rely, as it
did, on section 6(e)(1) of TSCA to authorize imports of PCBs for
disposal. Sierra Club v. EPA, 118 F.3d 1324 (9th Cir. 1997). On July
18, 1997, EPA by letter informed those people who had submitted an
import notification to EPA, pursuant to Sec. 761.93, that EPA was
closing the border to imports of PCBs. Accordingly, EPA would not allow
the import of any shipment of PCBs under Sec. 761.93 that left the
exporting country after 12:01 a.m. local time, July 20, 1997. EPA can
now only allow imports of PCBs by issuing exemptions to importers via
the petition process under section 6(e)(3)(B) of TSCA. Today's rule
implements the Sierra Club decision by amending Sec. 761.97(a)(1) with
minor clarifications.
2. Proposed export provisions. In the Import for Disposal rule, EPA
redesignated the provisions formerly codified at Sec. 761.20(c)
allowing exports for disposal of PCBs and PCB Items at concentrations
<50 ppm into a new Sec. 761.97(a)(1). EPA believes that export of PCBs
and PCB Items at concentrations <50 ppm was not affected by the Sierra
Club decision, and
[[Page 35421]]
is retaining Sec. 761.97(a)(1) with minor clarifications.
EPA stated in the NPRM that exports of PCBs and PCB Items for
disposal in concentrations <gr-thn-eq>50 ppm should be allowed on a
case-by-case basis unless EPA had reason to believe that the PCBs would
not be properly managed (59 FR 62817). EPA proposed that exports of
PCBs or PCB Items in concentrations <gr-thn-eq>50 ppm would be allowed
at EPA's initiative or in response to a petition, provided there was an
international agreement between the United States and the receiving
country concerning PCB exports. Petitions needed to include a variety
of information regarding the PCB waste and its proposed management; a
certification by the government of the receiving country that it had
received accurate and complete information about the waste, consented
to receive it, and had adequate disposal facilities to assure proper
management; and identification by the exporter of wastes containing
liquid PCBs or PCB-containing electrical equipment. EPA proposed to
exclude two types of PCB shipments from being considered exports or
imports. The first type involved transit shipments where PCBs
(including residues from spill clean-up in transit) are transported
from the United States through another country and back to the United
States (e.g., from Alaska through Canada to the continental United
States). The second type of shipment involved PCBs procured
domestically by the United States government, shipped to another
country for United States government use and returned to the United
States for disposal while remaining under United States government
control.
3. Decision to defer final rulemaking on exports and other
transboundary shipments. EPA has decided not to finalize today the
provisions in the NPRM on exports for disposal or the return to the
United States of Federal government PCB waste. EPA intends to address
those issues as well as imports for disposal under the section
6(e)(3)(B) petition process in a future rule.
EPA is, however, finalizing the proposed provisions on transit
shipments at a new Sec. 761.99 for other transboundary movements. The
Agency is also clarifying that PCB waste shipments that are merely
transiting the U.S. (e.g., from Mexico to Canada) are not exports or
imports.
The future rule on exports for disposal will not affect EPA's
policy on PCB exports for use. Under the 1980 Closed Border Policy, PCB
exports for disposal were banned. Exports for use or reuse were not
affected, but remained subject to the limitations for processing and
distribution in commerce under TSCA section 6(e)(3) and 40 CFR
Sec. 761.20, and the export notification requirements of TSCA section
12(b) and 40 CFR part 707, subpart D.
K. Change in Reportable Quantity -- Spill Cleanup Policy
The Agency proposed to amend Sec. 761.125(a)(1) by revising the
phrase ``under the National Contingency Plan all spills involving 10
pounds or more'' to read ``under the National Contingency Plan all
spills involving 1 pound or more.'' Most commenters supported the
proposal and EPA has finalized it without change.
L. Records and Monitoring
1. Transfer of totally enclosed PCBs. Under existing
Sec. 761.20(c)(1), totally enclosed PCB Items, such as Transformers,
and Large High and Low Voltage Capacitors <gr-thn-eq>50 ppm (as defined
in Sec. 761.3) sold before July 1, 1979, for purposes other than
resale, may be distributed in commerce (e.g., sold). EPA proposed that
records be maintained on transactions for these PCB Items. Some
commenters supported this proposal while others believed it was not
necessary because facilities maintained such information in their sales
records.
The Agency is amending Sec. 761.180(a)(2)(ix) to require owners or
operators transferring totally enclosed PCB Items that were sold before
July 1, 1979, for purposes other than resale to record in their annual
document log the name, address, and telephone number of the person to
whom it was transferred; and the serial number of the item or, if a
serial number is not available, its internal identification number.
Since commenters indicated that they were already keeping such records,
adding the information to the annual document log should not present
much of an additional burden.
2. Recordkeeping requirements for storage unit operators. In
today's final rule, EPA is adding recordkeeping requirements for
storage unit operators (see Sec. 761.180(a)(1)(iii) and (b)(1)(iii).
This addition requires the operator to maintain a record of cleanups
and inspections for leaks that must be performed under
Sec. 761.65(c)(5). These records are part of the facility's annual
records, and must be maintained, and made available for inspection,
with those records for the same time period. In the past, EPA
inspectors had no way to verify that unit operators were complying with
Sec. 761.65(c)(5).
A few commenters felt that the proposed requirement would duplicate
records they maintain under the Spill Cleanup Policy (Sec. 761.125).
EPA is not prescribing a format for spill cleanup records under today's
new provisions at Sec. 761.180. Records of cleanup maintained by
storage unit operators in compliance with the Spill Cleanup Policy will
also satisfy the new recordkeeping requirement, provided they are kept
with the annual records. Today's rule does not require a storage unit
operator to develop and maintain two separate set of records for the
same spill.
In the NPRM, EPA also proposed to require that storage unit
operators keep a current written inventory or log of their unit (see
proposed Sec. 761.180(a)(1)(iv) and (b)(1)(iv)), to assist EPA
inspectors in their on-site inspections. EPA believed that the proposal
would not additionally burden unit owners or operators, since they must
maintain an inventory to properly manage their facility, to ensure
compliance with the 1-year storage and disposal time-limit, and to
collect data for the annual log.
EPA received numerous comments on this requirement; most criticized
it as being more burdensome than EPA understood and maintained that its
benefits did not outweigh its costs. Commenters noted that many
companies keep computerized inventories at central locations, and
producing a paper copy and maintaining it at the storage unit would
impose a significant new compliance cost. Commenters stated that
keeping an inventory on-site was problematic with storage units at
remote or dirty/dangerous locations (e.g., storage units for
radioactive waste). Many commenters felt that the burden of constantly
updating such an inventory was unjustified, since it would only be used
on the day an inspection was conducted.
EPA has not finalized its proposal. While access to an inventory
would help EPA conduct on-site inspections of storage unit facilities,
EPA recognizes that the burden on storage unit operators associated
with maintaining a continually-updated inventory on-site exceeds the
benefit to the inspectors.
M. Amendments to the Notification and Manifesting Rule
The NPRM addressed a number of issues that were not contemplated
when the PCB Notification and Manifesting (N&M) rule was published on
December 21, 1989 (54 FR 52716, 40 CFR part 761, subpart K). Some of
these issues were raised by litigants who sought review of the rule,
and by other waste handling associations. (See, for example, Refs. 31
and 32.) Some items which EPA is
[[Page 35422]]
finalizing in today's rule have been previously promulgated under RCRA
regulations and seem appropriate for inclusion in the PCB N&M rule.
Others are simply clarifications and are accompanied by changes to 40
CFR part 761.
1. Definition of commercial storer: Small quantity exemption for
solids, and ``related' companies. On June 27, 1990 (55 FR 26204), EPA
amended the N&M rule to, among other things, clarify the definition of
``commercial storer of PCB waste'' at Sec. 761.3. In 1990, EPA added
the word ``liquid'' to the phrase ``exceeds 500 gallons of PCBs'' so
that the phrase reads ``exceeds 500 liquid gallons of PCBs.'' This
excluded facilities that were storing at any one time less than 500
gallons of liquid PCB waste from the requirement to seek approval as a
commercial storer of that waste.
In a petition filed with the District of Columbia Circuit Court of
Appeals on September 25, 1990, the petitioner claimed that EPA acted
arbitrarily when it narrowed the small volume exemption in this manner
so that storers of less than 500 gallons of non-liquid waste would not
qualify for the exemption. EPA agreed that certain classes of
businesses (e.g., companies performing PCB waste treatability studies
and laboratories affiliated with PCB handling companies) on occasion
may possess relatively small quantities of solid PCB waste generated by
others. EPA also agreed to initiate a regulatory amendment to establish
a small quantity exemption for solids to complement the exemption for
liquids. EPA told the petitioner that until the rule was amended, it
would take no enforcement action against a facility storing small
quantities of PCB solids without a commercial storage approval if
certain conditions were met (Ref. 32).
In the NPRM, EPA added a small volume exemption for storage of no
more than 70 cubic feet of non-liquid PCBs to the definition of
``commercial storer of PCB waste.'' EPA solicited comments on this
proposal, and in particular, whether 70 cubic feet was an appropriate
cutoff.
EPA also clarified how the change of ownership or release of title
of PCB waste relates to a person becoming a commercial storer of PCB
waste. The following example illustrates the clarification. If a
facility that generates and stores its own waste (e.g., transformers)
is sold (or the title otherwise changes ownership), the new owner (or
holder of the title) does not become a commercial storer of PCB waste.
The waste, along with the facility, is now owned by the purchaser,
which is storing its own waste and is therefore not a commercial
storer.
Commenters agreed that EPA should add a non-liquid quantity below
which one could store waste generated by others without needing a
commercial storer approval. However, some commenters asked EPA to
clarify whether one could store less than 500 liquid gallons and less
than 70 cubic feet and qualify for the exemption. This was not EPA's
intent. One is excluded from the requirement to seek a commercial
storer approval if the total volume of stored waste generated by others
is less than 500 gallons of material; liquid or non-liquid.
Accordingly, to set a uniform standard, EPA has set the regulatory
cutoff at a total combined volume of 500 gallons of liquid or non-
liquid PCB-Contaminated material. For computation of non-liquid PCB
volume, 500 gallons (U.S.) equals approximately 1.89 cubic meters.
The majority of other comments requested that EPA clarify what
related companies are not considered to be storing others waste.
Therefore, EPA has included examples of related companies in the
definition of commercial storage (see Sec. 761.3). One example listed
in Sec. 761.3 is a company having a joint ownership interest in a
facility from which PCB waste is generated (such as a jointly owned
electric power generating station) where the PCB waste is stored by one
of the co-owners of the facility. The participants have an undivided
ownership interest in the entire plant (although percentage of
ownership may differ) and one of them is designated and responsible for
operating the facility. This operating entity is the one storing the
waste. The waste is jointly owned and the financial assurances provided
by the ownership and operating agreements, together with the
responsible nature of the operating utility, exempt such facilities
from the need to seek commercial storage approval.
Other utilities commented that they should not be considered
commercial storers of PCB waste when they manage waste generated by
their customers, and that requiring them to seek commercial storer
approval impedes them from engaging in this activity. EPA disagrees. It
assumes that the utility is not the transformer owner, for example, and
would be storing waste generated by others in this scenario. Utilities
wishing to assist customers with their waste management could store
less than 500 gallons of liquid or non-liquid waste at any time or act
as a transfer facility, storing the waste less than 10 consecutive
days, and not have to seek commercial storer approval.
2. Clarification of exception reporting. EPA proposed to amend
Sec. 761.215(b), (c), and (d), which discuss when a generator,
commercial storer, or disposer must submit One-year Exception Reports
to the EPA Regional Administrator. Currently, a disposer is required to
submit a One-year Exception Report if: (i) The PCB waste is received on
a date more than 9 months after it was removed from service for
disposal as indicated on the manifest, and (ii) the disposer could not
dispose of the PCB waste within 1 year from the date of removal from
service for disposal.
A generator is required to submit the One-Year Exception Report
when the generator has not received a copy of the manifest with the
hand-written signature of the owner or operator of the designated
facility within 45 days of the date the waste was accepted by the
original transporter. Also, a generator or commercial storer who
manifests PCBs or PCB Items to a disposer of PCB waste must submit the
Exception Report when: (i) The waste was transferred to the disposer
within 9 months after removal from service for disposal as indicated on
the manifest, and (ii) the generator or commercial storer has not
received within 13 months after the date of removal for disposal a
Certificate of Disposal (CD) or it receives the CD, which indicates
that the waste was disposed more than 1 year after it was removed from
service for disposal.
The regulations do not, however, indicate when the disposer,
commercial storer, or generator has to submit the One-year Exception
Report to the EPA Regional Administrator. EPA proposed to amend
Sec. 761.215(b), (c), and (d) to require that the disposer, commercial
storer, or generator submit the report to the EPA Regional
Administrator no later than 30 days from the discovery of the passage
of the regulatory deadlines.
Commenters generally disfavored exception reporting, but did not
oppose EPA's proposal if EPA maintains the requirement to submit
exception reports. However, most felt that 45 or 60 days was a more
appropriate timeframe. EPA is not changing its requirement to submit
exception reports under Sec. 761.215 due to their usefulness as an
enforcement tool, but is adding a 45-day submission timeframe to
Sec. 761.215(b), (c), and (d) for submission of the report to the EPA
Regional Administrator.
3. Timing for submission of the certificate of disposal. Section
761.218(b) requires the owner or operator of a disposal facility to
send a Certificate of Disposal (CD) to the generator indicated on the
manifest that accompanied the shipment of PCB waste to the disposal
facility, within 30
[[Page 35423]]
days after disposal of the PCB waste identified on the manifest was
completed. Section 761.215(d)(2) indicates that a generator or
commercial storer should submit a One-year Exception Report to the EPA
Regional Administrator when the CD is not received from the disposer
within 13 months from the date of removal from service for disposal
(DORFSFD).
EPA clarifies that there may be different DORFSFD dates for
different individual items on any given manifest. This means that some
items listed on the manifest will need to be disposed of earlier than
others to meet the 1-year time-limit for storage and disposal.
Therefore, there will also be different CDs associated with those
different disposal dates (unless the entire shipment listed on the
manifest is disposed of before the 1-year anniversary of the item with
the earliest DORFSFD). EPA proposed that the generator may either
submit more than one manifest per shipment based on whether there are
different DORFSFDs for the items in the shipment or attach a
continuation sheet to reflect the different DORFSFDs. EPA wants to make
clear that it is not appropriate to base disposal on the manifest item
with the latest DORFSFD, or to send the CD based on that item.
Commenters generally opposed the concept of preparing multiple
manifests or CD's. EPA agrees that multiple manifests or CDS may be
overly burdensome and is not specifically requiring either one in this
final rule. EPA is adding, however, language to Sec. 761.218(b)
indicating that a CD must be sent to the generator within 30 days of
the date that disposal of each item of PCB waste identified on the
manifest was completed. Generators and disposers may work out the
details on how best to meet this requirement.
4. Applicability of manifesting requirements. EPA proposed to amend
Sec. 761.207(j), which describes what wastes are subject to the
manifesting requirements based on PCB concentration and whether
dilution has occurred. The section now states that if the waste
contains less than 50 ppm PCBs, but comes from a source that contained
greater than or equal to 50 ppm PCBs, it is subject to the manifesting
and disposal requirements. Cited as an example is PCB spill cleanup
material containing less than 50 ppm when the spill involved material
containing greater than or equal to 50 ppm.
Proposed Sec. 761.207(j) specified that there would be no manifest
requirement for material currently below 50 ppm that derives from pre-
April 18, 1978 spills of any concentration, or pre-July 2, 1979 spills
less than 500 ppm. This is because (i) the material ``as found'' is
below the regulatory threshold that would subject it to the disposal
requirements of 40 CFR part 761, subpart D, and (ii) the original
spilled material was below or not subject to those disposal
requirements at the time of the original spill.
In addition, the manifest requirement does not apply to material
derived from spills that have been decontaminated in accordance with
EPA's spill cleanup policies (40 CFR part 761, subpart G). In other
words, material containing PCBs that has been decontaminated to a level
below 50 ppm would not be treated as if it contained greater than or
equal to 50 ppm PCBs for disposal purposes, and could be disposed of in
a municipal landfill or by other non-PCB disposal methods. This
position is consistent with EPA's regulations that permit material
contaminated as the result of a PCB spill to be distributed in commerce
if it is decontaminated in accordance with the applicable spill cleanup
policies (see 40 CFR 761.20(c)(5)).
EPA received no negative comments on the proposed amendment to
Sec. 761.207(j), and is finalizing it as proposed. Commenters did ask
how to tell whether a pre-78 spill was originally <50 ppm PCBs when the
original source of the spill is not known and test results at the spill
site all show levels <50 ppm PCBs. Since prior to 1978 there were no
PCB regulations addressing anti-dilution, any pre-78 spill that is
found and tested to be less than 50 ppm may be treated at the
concentration found, without determining whether the spilled material
originally contained PCBs at greater than or equal to 50 ppm PCBs.
5. Renotification: changes in facility operations. Sections 761.202
and 761.205 discuss who must obtain an EPA ID number and how to do so
using EPA Form 7710-53. EPA clarifies that when a facility has
previously notified the Agency of its PCB waste handling activities
using EPA Form 7710-53 and those activities change (e.g., the owner or
operator of the facility notified EPA as a commercial storer and now
wants to engage in the transport of PCB waste, or notified as a
transporter and a commercial storer but no longer wishes to engage in
the activity of transporting PCB waste, or the facility has changed its
physical location), the notifier must resubmit EPA Form 7710-53 to
reflect those changes. It will help EPA process the form if the form or
cover letter indicates that it is a resubmission based on changes in
facility operations and not a new submission.
EPA proposed to add this resubmission requirement for EPA Form
7710-53 to new Sec. 761.205(f). EPA proposed that the resubmission be
submitted to EPA no later than 5 working days after the change was
made.
Some commenters opposed having to renotify if the facility location
changed, others thought renotification was appropriate only when the
facility ceased its waste handling activities, and still others thought
it was inappropriate to notify when the facility ceased its PCB waste
handling activities. For EPA to effectively track the number and type
of PCB waste handlers, it must know whether a facility has ceased
operation or moved. EPA is finalizing this amendment as proposed with
one minor change; the time to renotify is 30 days, rather than 5 days
as proposed.
In addition, high efficiency boilers and scrap metal recovery
ovens/smelters that burn regulated PCBs must now notify EPA using Form
7710-53 pursuant to 761.205 (see Unit IV.E.3. of this preamble for
further discussion).
6. Transfer of ownership of commercial storage facilities. EPA
proposed to add paragraph (j) to Sec. 761.65 on the procedures and
timing for transferring ownership of a commercial storage facility. The
timing and procedures would apply to facilities with either interim or
final approval.
Existing commercial storage facilities had until August 2, 1990, to
submit a completed application to EPA and receive interim status to
operate until the application was formally approved or denied. Existing
Sec. 761.65(d)(3) describes the information that must be in the
application, such as a closure plan, closure cost estimate, and
financial assurance for closure. The N&M rule did not, however, discuss
procedures and criteria for transferring ownership of a facility (as is
the case under the RCRA regulations at 40 CFR 270.72(a)(4)). In the
NPRM, EPA solicited comments on recognizing the transfer of interim
status or final approval for commercial storage facilities if all the
following conditions were met:
(i) The transferee demonstrated it had established, by the date of
transfer, financial assurance for closure pursuant to Sec. 761.65(g)
using a mechanism effective as of the date of final approval. This
would assure that there would be no lapse in financial assurance for
the transferred facility.
(ii) The transferee submitted a new and complete application for
final storage approval.
(iii) Any significant deficiencies (e.g., technical operations,
closure plans, cost
[[Page 35424]]
estimates) that EPA had identified in the application of the
transferor, were resolved in the new application by either the
transferor or by the transferee.
The new application would also have to include all the elements
listed in 40 CFR 761.65(d)(3). Before the transfer of interim status or
final approval could occur, EPA would have to review the new
application and deem it ``complete,'' i.e., all the required elements
were included in the application. The application would also have to
correct any significant deficiencies previously identified. EPA would
reserve the right to deny the transfer of the interim approval status
or final approval if upon review of the new application, EPA determined
that the transferee was not qualified or was unable or unwilling to
achieve and maintain its operations in compliance with TSCA and the PCB
rules. In addition, a determination by the EPA Regional Administrator
that the transfer of interim status or final approval could occur would
not be determinative of the final decision that would be made regarding
the commercial storage application. EPA would also reserve the right to
deny any subsequent transfer request respecting a particular facility
if EPA believed that the transfer was undertaken to avoid the
requirement of seeking a final commercial storage approval.
The requirements described above would have to be met before EPA
would recognize the transfer of interim status. For example, Company
``X'' is interested in acquiring ownership of Company ``Y,'' which has
interim status to operate as a commercial storer of PCB waste. If EPA
does not recognize the transfer of interim status before Company ``X''
takes legal title to the facility from Company ``Y,'' Company ``X'' may
be in violation of the commercial storage regulations because it did
not have interim status to operate at the time it took legal title.
To facilitate ownership transfer, EPA also solicited comments on
whether a ``new'' application is necessary. If, for example, the
transferee accepted the contents of the old application, the only parts
that would have to be amended (excluding any deficiencies that have yet
to be corrected) would be the financial assurance for closure, a new
list of principals and key employees, and the compliance history of any
business with which those individuals had been affiliated in the
preceding 5 years. This submission of an ``amended'' application would
save the transferee and the EPA time and money.
Commenters agreed that it should not be necessary to submit an
entirely new application. Therefore, in today's final rule the
transferee may submit a complete amended application including the
parts mentioned above. Most commenters disagreed with the Agency's
position that any deficiencies identified in the original application
would have to be resolved before EPA would recognize the transfer. They
felt they should be able to obtain the previous owner's status without
having to resolve any discrepancies or be allowed to establish a
compliance schedule to resolve the deficiencies in a timely manner.
EPA does not think it is a sound practice to allow the transfer of
ownership of a commercial storage facility with interim status to a new
owner when there are deficiencies in the existing application. If the
deficiencies identified in the existing application are resolved in the
amended application (i.e., the transferee will be submitting a new
compliance history for new principals and key employees or a new
closure plan), then EPA will consider the discrepancy in the original
application to be resolved and allow the transfer. The Agency may still
find discrepancies in the amended portion of the transferee's
application and these would have to be resolved before the facility was
granted final commercial storage approval.
Many commenters wanted an established timeframe by which EPA must
notify the transferee of approval or denial of the transfer request. In
today's final rule, EPA will provide a written decision on whether it
will recognize the transfer of ownership of the facility within 90 days
of receipt of the complete application.
7. Modifications to storage facilities. Section 761.65(e)(4)
discusses when a commercial storage facility must submit a request to
EPA for a modification to its storage approval to amend its closure
plan. In the NPRM, EPA proposed a similar requirement for revising the
financial assurance for closure when there are modifications to the
commercial storage facility, for example, where the facility is
enlarged and the maximum inventory of waste increases sufficiently to
warrant an increase to the financial assurance mechanism. EPA proposed
to add Sec. 761.65(g)(9) to require that when a modification to the
storage facility warrants establishing a new financial assurance
mechanism or amending the existing one, the owner or operator must have
done so no later than 30 days after the EPA Regional Administrator (or
Director, National Program Chemicals Division) is notified that the
modification is complete, but before the use of the modified portion of
the facility. In addition, EPA proposed that the EPA Regional
Administrator (or Director, National Program Chemicals Division) would
have to be notified in writing no later than 7 days after the
modification to the facility is complete.
Commenters requested that EPA clarify what percentage increase in
storage capacity would trigger the need for a new or amended financial
assurance mechanism. If the modification results in any increase in the
maximum storage capacity indicated in the permit, an amendment to the
financial assurance mechanism is required to address the added waste
inventory.
In today's final rule, EPA amended proposed Sec. 761.65 by
replacing the phrase ``Regional Administrator (or Director, National
Program Chemicals Division)'' with ``Director of the Federal or State
issuing authority'' to reflect the possibility that the permit may have
been issued under another authority but recognized under a TSCA PCB
Coordinated Approval (see Sec. 761.77).
EPA also changed the timeframe in which the permitting authority
must be notified of the completion of the facility modification from 7
to 30 days.
8. Clarification of which disposers must submit annual reports.
Section 761.180(b)(3) requires that each owner or operator of a PCB
disposal or commercial storage facility submit an annual report,
summarizing the records and annual document log maintained under
Sec. 761.180(b)(1) and (b)(2), to the EPA Regional Administrator of the
EPA Region in which the facility is located by July 15 of each year.
Sections 761.180(b)(1) and (b)(2) require that information obtained
from manifests that are generated or received by the facility be
recorded. If a disposal facility disposed of only its own waste and,
therefore, never received or generated a manifest, it still has to
prepare an annual document log under Sec. 761.180(b)(2)(iii). Examples
of such facilities include high efficiency boilers at Sec. 761.71; and
facilities conducting decontamination under Sec. 761.79.
EPA clarifies that ``disposers of PCB waste,'' as defined at
Sec. 761.3, who dispose of their own waste must submit an annual
report. Therefore, EPA proposed to amend Sec. 761.180(b)(3) to state
that a disposer's obligation to submit an annual report is based on the
act of disposing of PCB waste material and not whether the facility
received or generated manifests. EPA received no negative comments on
the proposal and is finalizing it as proposed.
9. Financial assurance mechanism: corporate guarantee. EPA proposed
to
[[Page 35425]]
reference 40 CFR 264.143(f)(10) of the RCRA financial assurance
regulations (57 FR 42832, September 16, 1992) to add an additional
financial assurance mechanism for PCB commercial storage facility
closure. This mechanism allows the corporate guarantor to be the direct
or higher-tier parent corporation of the owner or operator; a firm
whose parent corporation is also the parent corporation of the owner or
operator; or a firm with a substantial business relationship with the
owner or operator of the commercial storage facility. EPA proposed to
add this mechanism as Sec. 761.65(g)(7) and redesignate existing (g)(7)
as (g)(8). The proposal met with no negative comments and is finalized
as proposed.
10. Clarification of the term ``facility.'' In the NPRM, EPA
solicited comments on the need to clarify the terms ``facility'' and
``facilities.'' The terms are used in different contexts throughout 40
CFR part 761. EPA's impetus for raising this issue came from reviewing
the PCB Notification and Manifesting rule preamble (54 FR 52716, 52722,
column 2). That preamble discussion focusses on the requirement for
generators with on-site storage facilities to notify the Agency of
their PCB waste handling activities. The first two sentences in the
last paragraph read, ``In submitting their notifications to EPA,
members of this class of generator/storer will submit a notification
form for each of their storage areas that is subject to Sec. 761.65.
EPA will issue a unique identification number to each notifying storage
facility, and this identification number will correspond to the
physical location of the facility.''
Here the terms ``storage area'' and ``storage facility'' are used
interchangeably to mean all structures on contiguous land or specified
property, as opposed to a particular building, structure, cell, or
unit. EPA did not intend to require notification for each storage unit
on a contiguous piece of property, which would result in multiple,
individual identification numbers for that property. A facility on a
contiguous piece of property, regardless of the number of storage areas
or units, need only notify once. Therefore, in this instance, the term
facility means all contiguous land and structures used for the storage
of PCB waste.
In other sections of the PCB regulations, however, the term
``facility'' means an individual unit or structure. For example,
Sec. 761.65(b)(1) states that a facility used for the storage of PCBs
and PCB Items shall have an adequate roof, walls, and floor; continuous
curbing with a minimum 6 inch high curb; no floor drains or expansions
joints, etc.; and shall not be located at a site below the 100-year
flood water elevation. It is clear in this instance, that EPA is not
referring to a contiguous piece of property, but to an individual
structure or unit.
In most of 40 CFR part 761, the term ``facility'' refers to a
contiguous piece of property including the structures or individual
storage or disposal units. There are, however, 10 or so places in the
PCB regulations where the term ``facility'' refers only to the
individual unit or structure. In these 10 places, EPA proposed to
delete the term ``facility'' and insert a term whose definition will
best represent the Agency's intent (i.e., an individual unit,
structure, or building). EPA solicited comments on the most appropriate
term to convey this meaning. For purposes of this final rule, the term
``unit'' will be used to indicate this change in the regulatory text.
The term ``unit'' includes structures that meet the design criteria of
Sec. 761.65(b) and any functional equivalent recognized by the EPA
Regional Administrator under Sec. 761.77. EPA has added definitions of
``unit'' and ``facility'' to Sec. 761.3 of today's final rule.
11. Notification by transporters. EPA wishes to clarify the status
of subcontractors and permanently leased operators under the
manifesting and notification regulations. The issue is whether a person
who owns and operates a vehicle that is leased to a motor carrier and
is being used to transport PCB waste must obtain an EPA Identification
number or may use the ID number issued to the motor carrier.
EPA's PCB regulations generally require any person who is
transporting PCB waste to have an EPA ID number. Specifically, 40 CFR
761.202(b)(2) states that a transporter of PCB waste shall not
transport PCB waste without having received an EPA ID number from EPA,
or deliver PCB waste to transporters, disposers, or commercial storers
that have not received an EPA ID number. A ``Transporter of PCB Waste''
is defined at Sec. 761.3 to mean ``any person engaged in the
transportation of regulated PCB waste by air, rail, highway, or water
for purposes other than consolidation by a generator.'' Section 761.3
defines a ``Person'' to mean ``any natural or judicial person including
any individual, corporation, partnership, or association; any State or
political subdivision thereof; any interstate body; and any department,
agency, or instrumentality of the Federal Government.''
Generally, EPA has interpreted these rules to require an EPA ID
number for the person who is ultimately responsible for transporting
the waste, but not for employees of that person. Thus a corporation
that is transporting PCB waste would be the ``Transporter of PCB
Waste'' and would have to obtain an ID number. Corporate employees who
physically drive the trucks that contain the waste would use the
corporate ID number rather than obtain their own. This approach is
illustrated by EPA Form 7710-53, ``Notification of PCB Activity,''
which requires notification on behalf of facilities, not individual
employees. Similarly, the Uniform Hazardous Waste Manifest, EPA Form
8700-22, used under subpart K associates the EPA ID number with the
company name (Items no. 5 through 9).
In contrast, an individual who owns and operates his or her own
truck as an independent PCB waste hauler, rather than as an employee,
is the person ultimately responsible for moving the waste. Such a
person is a ``Transporter of PCB Waste'' and is required to obtain his
or her own unique EPA ID number.
In some situations, however, the owner/operator is driving the
vehicle under a lease to another person, and is no longer operating
with complete independence. The preamble to the proposed rule (59 FR
62841) noted that EPA interpreted the regulations to require a separate
EPA ID number for individual owner/operators even if they had
permanently leased their vehicles to a second person. EPA did not allow
an owner/operator to use the second person's EPA ID number, based on
the rationale that the owner/operator was operating independently and
was not part of the entity that had been granted the EPA ID number.
Commenters questioned the merit of this interpretation. The
commenters noted that under certain leases, the control of a motor
carrier over a leased vehicle and its owner/operator approximates the
control of an employer over an owned vehicle and its employee operator.
Under such a lease, the motor carrier exercises control over the
vehicle and driver, and is legally responsible for maintaining vehicle
records and for insuring the vehicle. The motor carrier is also liable
for the owner/operator's actions on the road, including Department of
Transportation (DOT) violations and any accidents or releases of
hazardous materials.
Comments also detailed how motor carriers are regulated under DOT/
Interstate Commerce Commission (ICC) rules. Comments noted that DOT/ICC
regulations do not compel a motor carrier to own vehicles; rather, they
may lease vehicles, either from a leasing company or from individuals
who own
[[Page 35426]]
and operate their own vehicle. For purposes of DOT/ICC regulations,
once a vehicle is leased by a motor carrier, that vehicle is under the
control of the motor carrier, and the owner/operator is no longer
regulated as an independent entity. The vehicle is then considered part
of the motor carrier's fleet, and it must be identified with the motor
carrier's ICC, DOT, or State identification number. In addition, for
DOT and ICC purposes, the motor carrier is the legal entity responsible
and liable for the actions of the leased vehicle and its owner/
operator.
In consideration of these comments, EPA believes it is appropriate
to modify its interpretation of the regulation that requires a
Transporter of PCB Waste to obtain an EPA ID number. The owner/operator
of a vehicle may utilize the EPA ID number of a motor carrier while
moving PCB waste in that vehicle provided the vehicle is leased to a
motor carrier and, under the terms of the lease, the motor carrier has
exclusive possession, control, and use of the vehicle and assumes
complete responsibility and liability for the operation of the vehicle
while it is being used under the lease. An example of such a lease is
one complying with the ICC regulations at 49 CFR part 1057, subpart B.
Alternatively, the owner/operator may use his or her own EPA
identification number. This interpretation supersedes the earlier
interpretation published in the proposed rule preamble at 59 FR 62841.
12. Verification of a RCRA identification number for use for PCB
waste handling activities under TSCA. The current PCB regulations
require that when a person has a RCRA identification number and wishes
to engage in PCB waste handling activities, the person must submit the
Notification of PCB Activity Form (EPA Form 7710-53) and have their
RCRA identification number verified in writing before the person
engages in certain PCB waste handling activities. Due to delays in
verifying existing RCRA numbers, a notifier may use their RCRA
identification number prior to receipt of written verification from EPA
once the notifier has confirmed that EPA is in receipt of their PCB
notification form. Confirmation of receipt of the form may be
accomplished by submitting it through the U.S. mail--return receipt
requested, telephoning to confirm receipt of mail or facsimile,
commercial overnight carrier's delivery verification processes, or any
other manner in which the submitter can demonstrate that the form was
received by EPA Headquarters. Written verification that the RCRA
identification number may be used for TSCA PCB waste handling
activities will follow.
V. Chart of Marking and Recordkeeping Requirements and EPA Forms
The following chart clarifies the marking and recordkeeping
provisions of 40 CFR part 761, amended to reflect today's final rule.
Annual recordkeeping requirements are highlighted with an asterisk.
M<INF>L</INF> refers to the large PCB mark as defined at Sec. 761.45.
This chart is included as an informal reference guide only and is not a
complete statement of all applicable requirements. Readers must refer
to the actual regulations at 40 CFR part 761 for specific legal
requirements.
The PCB Transformer Registration Form, EPA Form 7720-12, discussed
at Unit IV.B.3.a., and the revised Notification of PCB Activity Form,
EPA Form 7710-53, discussed at various units of this preamble, are
reproduced here for the convenience of and use by the regulated
community.
PCB Marking and Recordkeeping Requirements
----------------------------------------------------------------------------------------------------------------
Disposal and Storage-
Regulated Items Marking Requirements In-Service Records for-Disposal Records
----------------------------------------------------------------------------------------------------------------
PCB Containers M<INF>L -Total Kg weight of all -Date container
containers* -Serial or I.D. number
-Description of *
contents* -Kg weight of each*
-Description of
contents*
-Dates for: removal;
transport; disposal*
-Total number & Kg
weight*
----------------------------------------------------------------------------------------------------------------
PCB Article Containers M<INF>L -Total Kg weight of all -Date container
containers* -Serial or I.D. number*
-Description of -Kg weight of each*
contents* -Description of
contents*
-Dates for: removal;
transport; disposal*
-Total number & Kg
weight*
----------------------------------------------------------------------------------------------------------------
PCB Transformers M<INF>L -Total number of units* -Date article
M<INF>L or approved mark on -Total Kg weight* -Serial or I.D. number*
access to unit (e.g., -Inspection and -Kg of fluid in each*
vault doors) maintenance -Dates for: removal;
-Registration with EPA transport; disposal*
-Record of sale -Total number & Kg
weight*
----------------------------------------------------------------------------------------------------------------
PCB Large High or Low Voltage M<INF>L on unit or on -Total number* -Date article
Capacitors protected location (protected location -Serial or I.D. number*
records if applicable) -Kg of fluid in each*
-Record of sale -Dates for: removal;
transport; disposal*
-Total number & Kg
weight*
----------------------------------------------------------------------------------------------------------------
PCB Small Capacitors **
----------------------------------------------------------------------------------------------------------------
[[Page 35427]]
PCB-Contaminated Electrical Equipment Not required -Record of sale Not required (once
drained)
----------------------------------------------------------------------------------------------------------------
PCB Equipment that contains PCB Large M<INF>L Records required for Records required for
Capacitors or PCB Transformers PCB Large Capacitors PCB Large Capacitors
or PCB Transformers or PCB Transformers
----------------------------------------------------------------------------------------------------------------
Natural Gas Pipelines, Compressors, M<INF>L on above ground
Appurtenances Air compressor systems sources of PCB liquids
(<gr-thn-eq>2ppm) <gr-thn-eq>50 ppm
----------------------------------------------------------------------------------------------------------------
Bulk PCB waste M<INF>L on container -Kg weight/quantity
dates of each batch in
or out. Also
disposition of each
batch out.
-Total Kg weight
----------------------------------------------------------------------------------------------------------------
Storage areas M<INF>L -Annual records as
required under Sec.
761.180
-Records of attempts to
comply with 1-year
limit (if necessary)
----------------------------------------------------------------------------------------------------------------
Transport vehicles M<INF>L if contains a PCB
Transformer or 45kg
liquid PCBs
----------------------------------------------------------------------------------------------------------------
PCB motors, hydraulic and heat- M<INF>L (Note: use of these
transfer systems items no longer
authorized)
----------------------------------------------------------------------------------------------------------------
<SUP>* Annual reporting requirement.
<SUP>** Manufacturers are required to mark non-PCB Large Low Voltage capacitors, small capacitors, and fluorescent
light ballasts with a ``No PCBs'' label until 7/1/98.
[[Page 35428]]
[GRAPHIC] [TIFF OMITTED] TR29JN98.000
[[Page 35429]]
[GRAPHIC] [TIFF OMITTED] TR29JN98.001
[[Page 35430]]
[GRAPHIC] [TIFF OMITTED] TR29JN98.002
[[Page 35431]]
[GRAPHIC] [TIFF OMITTED] TR29JN98.003
[[Page 35432]]
VI. Rulemaking Record
The following list of documents includes basic information
considered by the Agency in developing today's final rule. The official
records of previous PCB rulemakings are incorporated as they exist in
the TSCA Public Docket on the date this rule is promulgated. A full
list of the materials included in the official rulemaking record is
available for inspection and copying in the TSCA Nonconfidential
Information Center (NCIC) from noon to 4 p.m. The TSCA NCIC is located
in Rm. B607, Northeast Mall, 401 M St., SW., Washington, DC. However,
any CBI that is a part of the record for this rulemaking is not
available for public review. A public version of the record, from which
CBI has been excluded, is available for inspection.
VII. References
1. USEPA, OHEA. Development of Advisory Levels for Polychlorinated
Biphenyls (PCBs) Cleanup. OHEA-E-187 (May 1986): 199pp.
2. Versar, Inc. Assessment of Risks Associated with the PCB
Disposal Amendments. (May 11, 1998): 42 pp.
3. USEPA, OPPTS, EETD. Cost Impacts of the Final Regulation
Amending the PCB Disposal Regulations at 40 CFR Part 761. (April 30,
1998): 236pp.
4. USEPA, ORD. PCBs Cancer Dose-Response Assessment and Application
to Environmental Mixtures. EPA/600/P-96/001F (September 1996): 75pp.
5. USEPA, OPPT, NPCD. Support Document for the PCB Disposal
Amendments, Final Rule; Request for Data in Support of a TSCA Use
Authorization for Non-Liquid PCB Applications. (April 16, 1998): 5pp.
6. USEPA, OSWER. Test Methods for Evaluating Solid Waste, Third
Edition. SW-846, Method Number 9095 Paint Filter Liquids Test. 4pp.
7. USEPA, OIG. Memorandum from Kenneth A. Konz, Assistant Inspector
General for Audit to Linda J. Fisher, Assistant Administrator, OPPTS,
USEPA. Subject: Special Report No. E1EPG2-11-6000-2500065, Review of
EPA Rule Regulating PCB Transformer Fires. (August 21, 1992): 24pp.
8. State of Connecticut, Department of Environmental Protection.
Letter from Timothy R.E. Keeney to William K. Reilly (August 23, 1991):
2pp.
9. USEPA, OPTS, EED. Memorandum from K.A. Hammerstrom to D.
Keenher, EED. Subject: Exposure to PCBs in recycled pipe. (July 7,
1988): 8pp.
10. USEPA, OPTS, EED. Letter from M.P. Halper to L.J. Ogden,
Interstate Natural Gas Association of America. Subject: Responses to
letter of March 17, 1988 re: natural gas pipeline removal and
retirement. (June 6, 1988): 12pp.
11. USEPA. Technical Guidance for the Abandonment in Place of
Interstate Natural Gas Pipeline Systems (October 24, 1990): 13pp.
12. USEPA, OPTS, OTS. Guidance on Classification for Purposes of
Disposal of Stored Natural Gas Pipe Which Was Not Part of a Pipe
Removal Project Carried Out Under an EPA-Approved PCB Disposal Activity
(February 1991): 10pp.
13. USEPA, OPTS, OTS. Technical Guidance for the Declassification
of Interstate Natural Gas Pipeline Systems (February 1991): 6pp.
14. USEPA, OSWER. Strategy for Minimization and Combustion. EPA/
530-R-94-044. (November 1994): 23pp.
15. USEPA, OPTS. Letter from J.A. Moore, Assistant Administrator,
Office of Pesticides and Toxic Substances, to T.K. Allen, Piper and
Marbury, counsel for Utilities Solid Waste Activities Group. Subject:
An interpretation of the PCB regulations on the disposal of drained
carcasses from mineral oil transformers, (September 9, 1986): 4pp.
16. Hazardous Waste Treatment Council. Petition For Rulemaking to
Amend 40 CFR Sec. 761.60 [under section 21 of TSCA]. Submitted to
USEPA by Richard C. Fortuna, Executive Director for the Hazardous Waste
Treatment Council, Franklin D. Sales, President of Salesco Systems USA,
Inc., and Brin McCagg, Vice-President of FulCircle Ballast Recyclers
(December 15, 1992).
17. S.D. Myers, Inc. Summary of Results: PCB Levels in Light
Ballast Compound. (August 11, 1993): 31pp.
18. Rollins Environmental Services, Inc. Analytical Protocol and
Analytical Results from PCB Ballast Study (September 20, 1993): 112pp.
19. USEPA. Memorandum from Greg Schweer, Exposure Assessment
Branch, to Jane Kim, Chemical Regulation Branch, Re: PCB Spill Exposure
Scenarios (April 18, 1986): 3pp.
20. USEPA. Memorandum from Karen A. Hammerstrom, Exposure
Assessment Branch, to Jane Kim, Chemical Regulation Branch, Re: Cleanup
of PCB Spills Located Indoors (February 5, 1986): 8pp.
21. USEPA, OW. Proceedings of the EPA's Contaminated Sediment
Management Strategy Forums (September 1992): 215pp.
22. USEPA, OPTS, EED, and USEPA, OSW. Project Summary--PCB, Lead
and Cadmium Levels in Shredder Waste Materials: A Pilot Study. (EPA
560/5-90-008A). (April 1991): 14pp.
23. USEPA, Memorandum from Pat Jennings, Exposure Assessment
Branch, to Denise Keehner, Chief, Chemical Regulation Branch, Re:
Estimates of Exposure of Humans to PCBs from Disposal of Fluff (August
16, 1988): 21pp.
24. USEPA, OGC. Memorandum from Lisa K. Friedman to Pamela A. Hill,
Applicability of the Household Waste Exclusion to Lead-Contaminated
Soil (March 7, 1995): 6pp.
25. USEPA, OSWER. Letter from Michael Shapiro to Mark Veckman,
Comprehensive Environmental Assessment, Status of (Household) Waste
Generated from Abatement of Lead-Based Paint (May 24, 1994): 3pp.
26. U.S. Army, U.S. Army Corps of Engineers, Directorate of Civil
Works. Letter from John P. D'Aniello, Acting Director of Civil Works,
to RCRA Docket Information Center, OW, EPA (August 28, 1996): 7pp.
27. National Association of Corrosion Engineers (NACE). ``Standard
Test Method, Visual Standard for Surfaces of New Steel Centrifugally
Blast Cleaned with Steel Grit and Shot.'' TM0175-75 (1981): 5pp.
28. U.S. Navy, Puget Sound Naval Shipyard. Electronic mail from
Peggy Sue Jones to John H. Smith, USEPA. Subject: NACE standards for
cleanliness of blasted metal surfaces (January 26, 1998): 2pp.
29. Midwest Research Institute. Letter from K. Boggess to J. Smith,
Chemical Regulations Branch, EED, OPTS, USEPA, Subject: ``PCB surface
decontamination experiments using kerosene,'' EPA Contract No. 68-DO-
0137, MRI Project No. 9801-A, Work Assignment No. 30, (June 25, 1992):
4pp.
30. Nishioka, M. and Hines, C. ``Final Report for Work Assignment
1-9, Technical Support for PCB Disposal Rulemaking'' (undated): 10pp.
31. USEPA, OGC. Letter from J.C. Nelson, to F.S. Blake, Swidler
Berlin, Chartered, counsel for General Motors Corporation and Chrysler
Corporation. Subject: Petition for review of the PCB manifest rule
(December 20, 1990): 3pp.
32. USEPA, OGC. Letter from J.C. Nelson to M. Edgar of Piper
Marbury, counsel for Chemical Waste Management, Inc. Subject: Petition
for review re: PCB Notification and Manifesting Rule; Correction; dated
June 27, 1990, (March 1, 1991): 2pp.
33. USEPA. Memorandum from Gregg Schweer, Exposure Assessment
Branch, to Jane Kim, Chemical Regulation Branch, Re: Conservative
Estimates of Potential Exposures of PCBs Resulting from Spills of One
Pound of PCBs in Mineral Oil or Askaral Fluid. (October 24, 1986):
14pp.
[[Page 35433]]
34. USEPA, OSWER. ``Soil Screening Guidance Technical Background
Document'' EPA/540/R-95/128. (May 1996): 168 pp. (plus appendices).
VIII. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), OMB has determined that this is
an ``economically significant regulatory action'' under section 3(f)(1)
of the Executive Order. OMB has made this determination because the net
annual economic impact of this rule is estimated to result in a
potential total annual cost savings of between $178.1 million and
$736.1 million. This action was submitted to OMB for review, and any
changes made in response to OMB comments are available for review in
the docket.
In support of the cost saving amendments contained in this final
rule, EPA has conducted a thorough cost assessment of the estimated
costs and cost savings associated with the provisions presented in the
proposed rule, and those contained in the final rule. The cost
assessment for the final rule is presented in a document entitled Cost
Impacts of the Final Regulation Amending the PCB Disposal Regulations
at 40 CFR Part 761, a copy of which is available in the docket for this
rule. In addition, the Agency has also prepared a risk assessment,
entitled Assessment of Risks Associated with the PCB Disposal
Amendments, which summarizes the risks associated with the amendments
provisions and upon which the Agency's findings of no unreasonable
risks are based.
Although resulting in significant cost savings, these amended
provisions will not reduce the benefits associated with the protection
of human health and the environment afforded through the original
regulation, which are summarized in Unit II.D. of this preamble. EPA
has determined, therefore, that there is no need to revise the benefits
analysis prepared for the original rule. In addition, since these
amendments reduce the overall costs and burdens associated with the
existing program requirements, it is not necessary in this case to
conduct an extensive quantitative analysis of all the potential
alternatives. The Agency has therefore conducted the necessary
assessments in compliance with Executive Order 12866. The following is
a brief summary of the cost assessment prepared for the final rule.
The net economic impact of the final regulation is a cost savings
that will be distributed widely throughout the economy. In estimating
cost savings, the final regulation was compared to two cost baselines,
except for requirements related to the disposal of PCB-Contaminated
ship hulls, in which case the Agency considered a third baseline. The
first baseline is based on the costs derived from EPA policy as it has
evolved in response to PCB waste handling issues, while the second
baseline reflects a literal interpretation of the existing regulation.
To estimate the costs associated with the disposal of PCB-Contaminated
ship hulls, EPA has added a third baseline to reflect the special
circumstances surrounding this activity. The Agency used these
baselines in its assessment of costs for this rule because it is
important to recognize the regulatory impact of changes that have
resulted from the subsequent issuance of official Agency policy. In
either case, the cost assessment indicates that the final regulation
will generate a net cost savings when compared to either baseline,
although the savings are substantially higher for the existing
regulation baseline. The net, annual cost savings are $148.1 million
when using the special circumstances baseline, $178.1 million using the
EPA policy baseline, and $736.1 million using the existing regulation
baseline.
Significant cost savings result from changes to the disposal
requirements for PCB remediation waste. EPA will now allow wider
latitude in selecting disposal methods for PCB remediation wastes,
resulting in a lowering of disposal costs, and producing a cost savings
estimated at approximately $80.5 million/year. EPA is also creating
disposal requirements for PCB bulk product waste. This provision, which
affects primarily generators of automobile shredder wastes and building
demolition wastes, disposal of ship hulls, and PCB-Contaminated porous
surfaces, generates savings of $593.4 million/year relative to the
existing regulation. The savings relative to EPA policy are much
smaller ($98.4 million/year) because EPA policy has allowed disposal of
automobile shredder fluff as municipal solid waste. The annual savings
for the disposal of ship hulls using the special circumstances baseline
is also lower ($68.4 million) because the Navy is already disposing of
ship hulls in a manner consistent with this rule.
Several provisions will affect electric utilities and industrial
and nonindustrial entities that own PCB-Contaminated Electrical
Equipment and generate PCB waste. The largest cost item is that for
training industry personnel about the numerous new provisions of the
final regulation. The first-year costs of this training are estimated
at $6.5 million. Annualized over 10 years, this estimated cost is
approximately $9.8 million per year. Numerous other items generate much
smaller costs or cost savings. Cost-generating provisions include
requirements for transformer registration, records of inspections and
PCB cleanup activities, and storage for reuse. Savings-generating
provisions include those that reduce the administrative burdens for
obtaining approvals to decontaminate equipment, requirements for
disposal of fluorescent light ballasts, and temporary storage of liquid
PCBs.
The following table provides aggregate annual costs and cost
savings estimates.
Aggregate Costs and Cost Savings ($Millions Per Year)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baseline Assumption:
-----------------------------------------------------------------------------------------------------------
Special Circumstances EPA Policy Existing Regulation
--------------------------------------------------------------------------------------------------------------------------------------------------------
Compliance Costs<SUP>a 13.0 13.0 13.0
Cost Savings 161.1 191.1 749.1
Net Cost Savings 148.1 178.1 736.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
<SUP>a</SUP>Compliance costs are identical regardless of the
baseline used. All regulatory amendments generating compliance costs
are entirely new. Totals do not add due to rounding.
B. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601
[[Page 35434]]
et seq.), the Agency hereby certifies that this regulatory action will
not have a significant economic impact on a substantial number of small
entities. Information relating to this determination has been provided
to the Chief Counsel for Advocacy of the Small Business Administration,
and is included in the docket for this rulemaking.
The compliance costs and cost savings were distributed among the
affected sectors (e.g., electric utility and non-utility entities,
entities with PCB ballasts from fluorescent light fixtures, and
entities operating natural gas pipelines) to identify the economic
impacts throughout the economy. Most provisions will affect electric
utilities and non-utility owners of PCB-Contaminated equipment or
materials. Training costs represent the largest cost elements, and are
annualized at approximately $9.8 million per year. Several cost savings
also accrue to owners of PCB-Contaminated Electrical Equipment.
The net compliance costs (excluding the savings for PCB remediation
waste) were distributed among utilities in the electric utility
industry based on estimates regarding the share of PCB and PCB-
Contaminated equipment owned by utilities. Ownership of such equipment
was judged to be the best possible proxy for the distribution of
compliance costs and cost savings by industry. In order to develop a
conservative estimate of regulatory impacts on industry, the savings
from remediation wastes were excluded in these calculations since
savings from remediation wastes will be distributed very unevenly among
firms.
Net compliance costs were distributed to entities in the electric
utility industry based on the share of PCB and PCB-Contaminated
equipment owned by utilities. Costs were further distributed to
utilities based on the relative magnitude of electricity sales (in
megawatt-hours) among various groups of utilities. Per entity
compliance costs for small private utilities are estimated at $137 or
0.006% of revenues, while compliance costs for small public utilities
were estimated at $36 or 0.006% of revenues. With the exclusions of
certain cost saving items, as described above, the net compliance costs
are quite small. They represent a negligible percentage of revenues for
the affected industries. While savings will be distributed among
electric utilities and industry, data are not sufficient to distribute
these savings in detail by industry.
C. Paperwork Reduction Act
The information collection requirements contained in this rule have
been submitted for approval to OMB under the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501 et seq., and in accordance with the procedures at
5 CFR 1320.11. An Information Collection Request (ICR) document has
been prepared by EPA (EPA ICR No.1729.02) and a copy may be obtained
from Sandy Farmer, OPPE Regulatory Information Division, U.S.
Environmental Protection Agency (2137), 401 M St., SW., Washington, DC
20460, by calling (202) 260-2740, or electronically by sending an e-
mail message to ``farmer.sandy@epamail.epa.gov.'' An electronic copy
has also been posted with the Federal Register notice on EPA's homepage
with other information related to this action.
The information requirements contained in this rule are not
effective until OMB approves them. An Agency may not conduct or
sponsor, and a person is not required to respond to a collection of
information subject to OMB approval under the PRA unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations, after initial publication in the Federal Register, are
maintained in a list at 40 CFR part 9. Upon OMB's approval, the Agency
will publish a notice in the Federal Register to announce the OMB
action and to ensure that any necessary changes are made to the list of
OMB control numbers for EPA's regulations.
This information collection includes both reporting and
recordkeeping requirements that are associated with the management of
PCBs, PCB Items, and PCB waste. These reporting and recordkeeping
requirements were implemented to ensure the Agency is knowledgeable of
ongoing PCB activities (e.g., who, what, where) and that individuals
using or disposing of PCBs are held accountable for their activities
and can demonstrate compliance with the PCB provisions at 40 CFR part
761. EPA will use this information to ensure PCBs are managed in an
environmentally safe manner and that activities are being conducted in
compliance with the PCB regulations. Data collected under the
transformer registration program ultimately will be provided to the EPA
Regional Offices and other environmental offices, on an as requested
basis (e.g., State environmental agencies, fire response personnel,
etc.). Some data will be used to evaluate whether an unreasonable risk
of injury to health or the environment will ensue from the respondents'
PCB activities. Some data will be used to supplement the Office of
Pollution Prevention and Toxics' (OPPT) data base on the identity and
location of individuals who engage in PCB waste handling activities.
Many of these requirements are triggered only by an individual's need
to address a particular PCB scenario, while other requirements apply to
the universe of individuals who use, process, distribute in commerce,
or dispose of PCBs.
EPA anticipates that no one individual would be subject to all of
the requirements contained in this rule. Responses to the collection of
information are mandatory (see 40 CFR part 761). The burden to
respondents for complying with this information collection is estimated
to total 1,786,153 hours per year, with an annual cost of $78,422,831
which includes $20,819,000 for the acquisition of training services
unaffiliated with specific respondent hours. Cost without training
services is $57,603,831. These totals are based on an average burden
range of 15 minutes to 550 hours per response for an estimated 68,079
respondents submitting 24 reports, and an average burden range of 50
minutes to 60 hours for an estimated 395,409 respondents maintaining
required records.
Under the PRA, ``burden'' means the total time, effort, or
financial resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information.
Send any comments on the burden estimates and any suggested methods
for minimizing respondent burden, including through the use of
automated collection techniques within 30 days to EPA at the address
provided above, with a copy to the Office of Information and Regulatory
Affairs, Office of Management and Budget, 725 17th St., NW.,
Washington, DC 20503, marked ``Attention: Desk Officer for EPA.''
Please remember to include the ICR number in any correspondence.
[[Page 35435]]
D. Unfunded Mandates Reform Act and Executive Order 12875
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4), EPA has determined that this regulatory action does
not contain any ``unfunded mandates,'' as described by the Act, for
State, local or tribal governments, or the private sector. Nor does
this action result in the expenditure of $100 million or more by any
State, local, or tribal governments, or by anyone in the private
sector. Furthermore, no nonfederal governmental inspections or
activities are required under the final regulation. The relevant costs
associated with this regulation are described in the Executive Order
12866 section above. Therefore, this action is not subject to the
requirements of UMRA, or require special consultation under Executive
Order 12875, entitled Enhancing the Intergovernmental Partnership (58
FR 58093, October 28, 1993).
E. Executive Order 12898
Pursuant to Executive Order 12898, entitled Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations (59 FR 7629, February 16, 1994), the Agency has considered
environmental justice-related issues with regard to the potential
impacts of this action on the environmental and health conditions in
low-income and minority communities. As the Executive Order states,
each Federal agency is required to ``analyze the environmental effects,
including human health, economic and social effects, of Federal
actions, including effects on minority communities and low-income
communities. . . .'' Accordingly, EPA examined the impact of the PCB
disposal amendments on the geographic distribution of PCB management
activities, relative to the socioeconomic characteristics of the
surrounding communities. The final regulation affects the use,
maintenance, storage, handling, and disposal of PCB Articles. None of
the areas it covers, however, will influence the socioeconomic equity
of actual or potential environmental exposures to PCB wastes. Several
aspects of the regulation, pertinent to this issue, are discussed
below.
The final regulation will affect the manner in which electric
utilities and other industrial entities maintain and store PCB-
Contaminated equipment. These activities will occur predominantly at
existing utility and industrial locations where they will represent a
very minor portion of the facility activities. The impending changes,
which are designed to reduce potential work and environmental
exposures, will not influence the geographic distribution of these
activities. Further, the changes are unlikely to cause job activities
to be redistributed among utility and industrial workers. The changes
should also produce a net decrease in risk to the affected workers. In
any case, there is no apparent avenue through which these changes might
affect environmental justice considerations.
The final regulation will influence the disposal of PCB-
Contaminated wastes but does not directly affect the siting of PCB
management facilities. While the regulation will allow possible shifts
in how PCBs are disposed among facilities, there is no direct influence
on the location of such operations, and, therefore, no impact on the
socioeconomic distribution of exposure risks.
The final regulation will allow PCB wastes to be handled at a wider
range of facilities, including RCRA facilities, than under existing
regulations. The final regulation will also allow low concentration PCB
wastes to be disposed of in municipal solid waste facilities. In any
case, the regulation might have a slight influence on the mix of wastes
disposed of at these various facilities but will not otherwise affect
the operation or maintenance of those facilities.
A recent report by the U.S. General Accounting Office entitled
Hazardous and Nonhazardous Waste: Demographics of People Living Near
Waste Facilities (1995) reviewed environmental justice research
studies, and reached no definitive conclusion on whether existing RCRA
facilities and other hazardous waste sites are located
disproportionately in poor or minority neighborhoods. Studies that
focused on commercial RCRA facilities (excluding Superfund and other
uncontrolled hazardous waste sites, which are less relevant to this
analysis) also did not find these facilities to be disproportionately
located in poor or minority neighborhoods.
Based on the final rule's lack of influence on waste facility
siting or the socioeconomic distribution of waste handling activities,
EPA concludes that the final rule has no impact on environmental
justice.
F. Executive Order 13045
This action is not subject to Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety Risks
(62 FR 19885, April 23, 1997), because this action was initiated and
the Notice of Proposed Rulemaking for this action published prior to
the date of the order. Under section 2-202 of the Executive Order, the
order only applies to those regulatory actions initiated after the date
of the order or for which a Notice of Proposed Rulemaking is published
1 year after the date of the order. In any case, although OMB has
determined that this is an economically significant action (see Unit
VIII.A. above), this regulatory action does not involve any
environmental health or safety risks that the Agency has reason to
believe may disproportionately affect children. In fact, the
substantial net cost savings that are generated by the final rule, will
not reduce the benefits associated with the protection of human health
or the environment afforded through the original regulation.
G. National Technology Transfer and Advancement Act (NTTAA)
Under section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA), (15 U.S.C. 272 note) the Agency is required to
use voluntary consensus standards in its regulatory activities unless
to do so would be inconsistent with applicable law or otherwise
impractical. Voluntary consensus standards are technical standards
(e.g., materials specifications, test methods, sampling procedures,
business practice, etc.) which are developed or adopted by voluntary
consensus standard bodies. Where available and potentially applicable
voluntary consensus standards are not used by EPA, the Act requires the
Agency to provide Congress, through OMB, an explanation of the reasons
for not using such standards.
Although the PCB program has historically used, and continues to
rely on, standards that have been developed under a voluntary consensus
process, today's final rule imposes procedures that must be used in
order to abandon PCB articles, as well as for sampling, site
characterization, validation of decontamination efforts, and the
disposal of various PCB wastes. The disposal options contained in this
rule are much more flexible than those that currently exist. Given this
level of flexibility, EPA must ensure that the ultimate disposal
options which are selected by regulated entities are utilized in a
manner that is protective of health and the environment. As a result,
EPA is promulgating the procedures and requirements in subparts M
through Q of this rule to ensure consistency in both the way disposal
determinations are made and in the manner in which similar PCB wastes
are disposed of. These requirements were subject to the
[[Page 35436]]
notice and comment process which is prescribed by the Administrative
Procedures Act. All comments were reviewed and the requirements of
subparts M through Q were modified as a result of EPA's consideration
of those comments. A discussion of some of the changes that were made
appears in Units IV.E.4., 8. and 9. of the preamble to this rule.
H. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. This rule is a
``major rule'' as defined by 5 U.S.C. 804(2).
List of Subjects
40 CFR Part 750
Environmental protection, Administrative practice and procedure,
Chemicals, Hazardous substances.
40 CFR Part 761
Environmental protection, Hazardous substances, Labeling,
Polychlorinated biphenyls (PCBs), Reporting and recordkeeping
requirements.
Dated: June 18, 1998.
Carol M. Browner,
Administrator.
Therefore, 40 CFR chapter I is amended as follows:
PART 750--[AMENDED]
1. In part 750:
a. The authority citation for part 750 continues to read as
follows:
Authority: 15 U.S.C. 2605.
Sec. 750.31 [Amended]
b. In Sec. 750.31(c)(9) introductory text and (c)(9)(vii), by
revising the references to ``paragraphs (d)(1) through (8)'' to read
``paragraphs (c)(1) through (c)(8)''.
c. In Sec. 750.31(c)(9)(ii) and (c)(9)(iii), by revising the
references to ``paragraphs (d)(1), (3) and (5)'' to read ``paragraphs
(c)(1), (c)(3), and (c)(5)''.
PART 761--[AMENDED]
2. In part 761:
a. The authority citation for part 761 continues to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2611, 2614, and 2616.
b. In Sec. 761.1, by revising paragraph (b) to read as follows:
Sec. 761.1 Applicability.
* * * * *
(b)(1) This part applies to all persons who manufacture, process,
distribute in commerce, use, or dispose of PCBs or PCB Items.
Substances that are regulated by this part include, but are not limited
to: dielectric fluids; solvents; oils; waste oils; heat transfer
fluids; hydraulic fluids; paints or coatings; sludges; slurries;
sediments; dredge spoils; soils; materials containing PCBs as a result
of spills; and other chemical substances or combinations of substances,
including impurities and byproducts and any byproduct, intermediate, or
impurity manufactured at any point in a process.
(2) Unless otherwise noted, PCB concentrations shall be determined
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. Unless otherwise provided,
PCBs are quantified based on the formulation of PCBs present in the
material analyzed. For example, measure Aroclor<SUP>TM</SUP> 1242 PCBs
based on a comparison with Aroclor<SUP>TM</SUP> 1242 standards. Measure
individual congener PCBs based on a comparison with individual PCB
congener standards.
(3) Most provisions in this part apply only if PCBs are present in
concentrations above a specified level. Provisions that apply to PCBs
at concentrations of <50 ppm apply also to contaminated surfaces at PCB
concentrations of <ls-thn-eq>10/100 cm<SUP>2</SUP>. Provisions that
apply to PCBs at concentrations of <gr-thn-eq>50 to <500 ppm apply also
to contaminated surfaces at PCB concentrations of >10/100 cm<SUP>2</SUP>
to <100 <greek-m>g/100 cm<SUP>2</SUP>. Provisions that apply to PCBs at
concentrations of <gr-thn-eq>500 ppm apply also to contaminated
surfaces at PCB concentrations of <gr-thn-eq>100 <greek-m>g/100
cm<SUP>2</SUP>.
(4) PCBs can be found in liquid, non-liquid and multi-phasic
(combinations of liquid and non-liquid) forms. A person should use the
following criteria to determine PCB concentrations to determine which
provisions of this part apply to such PCBs.
(i) Any person determining PCB concentrations for non-liquid PCBs
must do so on a dry weight basis.
(ii) Any person determining PCB concentrations for liquid PCBs must
do so on a wet weight basis. Liquid PCBs containing more than 0.5
percent by weight non-dissolved material shall be analyzed as multi-
phasic non-liquid/liquid mixtures.
(iii) Any person determining the PCB concentration of samples
containing PCBs and non-dissolved non-liquid materials <gr-thn-eq>0.5
percent, must separate the non-dissolved materials into non-liquid PCBs
and liquid PCBs. For multi-phasic non-liquid/liquid or liquid/liquid
mixtures, the phases shall be separated before chemical analysis.
Following phase separation, the PCB concentration in each non-liquid
phase shall be determined on a dry weight basis and the PCB
concentration in each liquid phase shall be determined separately on a
wet weight basis.
(iv) Any person disposing of multi-phasic non-liquid/liquid or
liquid/liquid mixtures must use the PCB disposal requirements that
apply to the individual phase with the highest PCB concentration except
where otherwise noted. Alternatively, phases may be separated and
disposed of using the PCB disposal requirements that apply to each
separated, single-phase material.
(5) No person may avoid any provision specifying a PCB
concentration by diluting the PCBs, unless otherwise specifically
provided.
(6) Unless otherwise specified, references to weights or volumes of
PCBs in this part apply to the total weight or total volume of the
material (oil, soil, debris, etc.) that contains regulated
concentrations of PCBs, not the calculated weight or volume of only the
PCB molecules contained in the material.
* * * * *
c. By adding a new Sec. 761.2 to read as follows:
Sec. 761.2 PCB concentration assumptions for use.
(a)(1) Any person may assume that transformers with <3 pounds (1.36
kilograms (kgs)) of fluid, circuit breakers, reclosers, oil-filled
cable, and rectifiers whose PCB concentration is not established
contain PCBs at <50 ppm.
(2) Any person must assume that mineral oil-filled electrical
equipment that was manufactured before July 2, 1979, and whose PCB
concentration is not established is PCB-Contaminated Electrical
Equipment (i.e., contains <gr-thn-eq>50 ppm PCB, but <500 ppm PCB). All
pole-top and pad-mounted distribution transformers manufactured before
July 2, 1979, must be assumed to be mineral-oil filled. Any person may
assume that electrical equipment manufactured after July 2, 1979, is
non-PCB (i.e., <50 ppm
[[Page 35437]]
PCBs). If the date of manufacture of mineral oil-filled electrical
equipment is unknown, any person must assume it to be PCB-Contaminated.
(3) Any person must assume that a transformer manufactured prior to
July 2, 1979, that contains 1.36 kg (3 pounds) or more of fluid other
than mineral oil and whose PCB concentration is not established, is a
PCB Transformer (i.e., <gr-thn-eq>500 ppm). If the date of manufacture
or the type of dielectric fluid is unknown, any person must assume the
transformer to be a PCB Transformer.
(4) Any person must assume that a capacitor manufactured prior to
July 2, 1979, whose PCB concentration is not established contains
<gr-thn-eq>500 ppm PCBs. Any person may assume that a capacitor
manufactured after July 2, 1979, is non-PCB (i.e., <50 ppm PCBs). If
the date of manufacture is unknown, any person must assume the
capacitor contains <gr-thn-eq>500 ppm PCBs. Any person may assume that
a capacitor marked at the time of manufacture with the statement ``No
PCBs'' in accordance with Sec. 761.40(g) is non-PCB.
(b) PCB concentration may be established by:
(1) Testing the equipment; or
(2)(i) A permanent label, mark, or other documentation from the
manufacturer of the equipment indicating its PCB concentration at the
time of manufacture; and
(ii) Service records or other documentation indicating the PCB
concentration of all fluids used in servicing the equipment since it
was first manufactured.
d. In Sec. 761.3, by revising the definitions for ``Commercial
storer of PCB waste,'' ``PCB-Contaminated Electrical Equipment,'' ``PCB
Item,'' ``PCB Transformer,'' and paragraph (2) of ``Qualified
Incinerator''; by removing the definitions for ``Basel Convention'' and
``Emergency Situation''; and by adding alphabetically 36 definitions to
read as follows:
Sec. 761.3 Definitions.
* * * * *
Air compressor system means air compressors, piping, receiver
tanks, volume tanks and bottles, dryers, airlines, and related
appurtenances.
* * * * *
ASTM means American Society for Testing and Materials, 1916 Race
Street, Philadelphia, PA 19103.
* * * * *
CERCLA means the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. 9601-9657).
* * * * *
Cleanup site means the areal extent of contamination and all
suitable areas in very close proximity to the contamination necessary
for implementation of a cleanup of PCB remediation waste, regardless of
whether the site was intended for management of waste.
* * * * *
Commercial storer of PCB waste means the owner or operator of each
facility that is subject to the PCB storage unit standards of
Sec. 761.65(b)(1) or (c)(7) or meets the alternate storage criteria of
Sec. 761.65(b)(2), and who engages in storage activities involving
either PCB waste generated by others or that was removed while
servicing the equipment owned by others and brokered for disposal. The
receipt of a fee or any other form of compensation for storage services
is not necessary to qualify as a commercial storer of PCB waste. A
generator who only stores its own waste is subject to the storage
requirements of Sec. 761.65, but is not required to obtain approval as
a commercial storer. If a facility's storage of PCB waste generated by
others at no time exceeds a total of 500 gallons of liquid and/or non-
liquid material containing PCBs at regulated levels, the owner or
operator is a commercial storer but is not required to seek EPA
approval as a commercial storer of PCB waste. Storage of one company's
PCB waste by a related company is not considered commercial storage. A
``related company'' includes, but is not limited to: a parent company
and its subsidiaries; sibling companies owned by the same parent
company; companies owned by a common holding company; members of
electric cooperatives; entities within the same Executive agency as
defined at 5 U.S.C. 105; and a company having a joint ownership
interest in a facility from which PCB waste is generated (such as a
jointly owned electric power generating station) where the PCB waste is
stored by one of the co-owners of the facility. A ``related company''
does not include another voluntary member of the same trade
association. Change in ownership or title of a generator's facility,
where the generator is storing PCB waste, does not make the new owner
of the facility a commercial storer of PCB waste.
* * * * *
DOT means the United States Department of Transportation.
Dry weight means the weight of the sample, excluding the weight of
the water in the sample. Prior to chemical analysis the water may be
removed by any reproducible method that is applicable to measuring PCBs
in the sample matrix at the concentration of concern, such as air
drying at ambient temperature, filtration, decantation, heating at low
temperature followed by cooling in the presence of a desiccant, or
other processes or combinations of processes which would remove water
but not remove PCBs from the sample. Analytical procedures which
calculate the dry weight concentration by adjusting for moisture
content may also be used.
* * * * *
Facility means all contiguous land, and structures, other
appurtenances, and improvements on the land, used for the treatment,
storage, or disposal of PCB waste. A facility may consist of one or
more treatment, storage, or disposal units.
* * * * *
High occupancy area means any area where PCB remediation waste has
been disposed of on-site and where occupancy for any individual not
wearing dermal and respiratory protection for a calendar year is: 840
hours or more (an average of 16.8 hours or more per week) for non-
porous surfaces and 335 hours or more (an average of 6.7 hours or more
per week) for bulk PCB remediation waste. Examples could include a
residence, school, day care center, sleeping quarters, a single or
multiple occupancy 40 hours per week work station, a school class room,
a cafeteria in an industrial facility, a control room, and a work
station at an assembly line.
* * * * *
Liquid PCBs means a homogenous flowable material containing PCBs
and no more than 0.5 percent by weight non-dissolved material.
Low occupancy area means any area where PCB remediation waste has
been disposed of on-site and where occupancy for any individual not
wearing dermal and respiratory protection for a calendar year is: less
than 840 hours (an average of 16.8 hours per week) for non-porous
surfaces and less than 335 hours (an average of 6.7 hours per week) for
bulk PCB remediation waste. Examples could include an electrical
substation or a location in an industrial facility where a worker
spends small amounts of time per week (such as an unoccupied area
outside a building, an electrical equipment vault, or in the non-office
space in a warehouse where occupancy is transitory).
* * * * *
Natural gas pipeline system means natural gas gathering facilities,
natural gas pipe, natural gas compressors, natural gas storage
facilities, and natural gas pipeline appurtenances (including
instrumentation and vessels directly in contact with transported
natural gas such as valves, regulators, drips, filter
[[Page 35438]]
separators, etc., but not including air compressors).
* * * * *
Non-liquid PCBs means materials containing PCBs that by visual
inspection do not flow at room temperature (25 deg.C or 77 deg.F) or
from which no liquid passes when a 100 g or 100 ml representative
sample is placed in a mesh number 60 <plus-minus> 5 percent paint
filter and allowed to drain at room temperature for 5 minutes.
* * * * *
Non-porous surface means a smooth, unpainted solid surface that
limits penetration of liquid containing PCBs beyond the immediate
surface. Examples are: smooth uncorroded metal; natural gas pipe with a
thin porous coating originally applied to inhibit corrosion; smooth
glass; smooth glazed ceramics; impermeable polished building stone such
as marble or granite; and high density plastics, such as polycarbonates
and melamines, that do not absorb organic solvents.
* * * * *
NTIS means the National Technical Information Service, U.S.
Department of Commerce, 5285 Port Royal Rd., Springfield, VA 22161.
* * * * *
Open burning means the combustion of any PCB regulated for
disposal, in a manner not approved or otherwise allowed under subpart D
of this part, and without any of the following:
(1) Control of combustion air to maintain adequate temperature for
efficient combustion.
(2) Containment of the combustion reaction in an enclosed device to
provide sufficient residence time and mixing for complete combustion.
(3) Control of emission of the gaseous combustion products.
* * * * *
PCB bulk product waste means waste derived from manufactured
products containing PCBs in a non-liquid state, at any concentration
where the concentration at the time of designation for disposal was
<gr-thn-eq>50 ppm PCBs. PCB bulk product waste does not include PCBs or
PCB Items regulated for disposal under Sec. 761.60(a) through (c),
Sec. 761.61, Sec. 761.63, or Sec. 761.64. PCB bulk product waste
includes, but is not limited to:
(1) Non-liquid bulk wastes or debris from the demolition of
buildings and other man-made structures manufactured, coated, or
serviced with PCBs. PCB bulk product waste does not include debris from
the demolition of buildings or other man-made structures that is
contaminated by spills from regulated PCBs which have not been disposed
of, decontaminated, or otherwise cleaned up in accordance with subpart
D of this part.
(2) PCB-containing wastes from the shredding of automobiles,
household appliances, or industrial appliances.
(3) Plastics (such as plastic insulation from wire or cable; radio,
television and computer casings; vehicle parts; or furniture
laminates); preformed or molded rubber parts and components; applied
dried paints, varnishes, waxes or other similar coatings or sealants;
caulking; adhesives; paper; Galbestos; sound deadening or other types
of insulation; and felt or fabric products such as gaskets.
(4) Fluorescent light ballasts containing PCBs in the potting
material.
* * * * *
PCB Capacitor means any capacitor that contains <gr-thn-eq>500 ppm
PCB. Concentration assumptions applicable to capacitors appear under
Sec. 761.2.
* * * * *
PCB-Contaminated means a non-liquid material containing PCBs at
concentrations <gr-thn-eq>50 ppm but <500 ppm; a liquid material
containing PCBs at concentrations <gr-thn-eq>50 ppm but <500 ppm or
where insufficient liquid material is available for analysis, a non-
porous surface having a surface concentration >10 <greek-m>g/100
cm<SUP>2</SUP> but <100 <greek-m>g/100 cm<SUP>2</SUP>, measured by a
standard wipe test as defined in Sec. 761.123.
PCB-Contaminated Electrical Equipment means any electrical
equipment including, but not limited to, transformers (including those
used in railway locomotives and self-propelled cars), capacitors,
circuit breakers, reclosers, voltage regulators, switches (including
sectionalizers and motor starters), electromagnets, and cable, that
contains PCBs at concentrations of <gr-thn-eq>50 ppm and <500 ppm in
the contaminating fluid. In the absence of liquids, electrical
equipment is PCB-Contaminated if it has PCBs at >10 <greek-m>g/100
cm<SUP>2</SUP> and <100 <greek-m>g/100 cm<SUP>2</SUP> as measured by a
standard wipe test (as defined in Sec. 761.123) of a non-porous
surface.
* * * * *
PCB field screening test means a portable analytical device or kit
which measures PCBs. PCB field screening tests usually report less than
or greater than a specific numerical PCB concentration. These tests
normally build in a safety factor which increases the probability of a
false positive report and decreases the probability of a false negative
report. PCB field screening tests do not usually provide: an identity
record generated by an instrument; a quantitative comparison record
from calibration standards; any identification of PCBs; and/or any
indication or identification of interferences with the measurement of
the PCBs. PCB field screening test technologies include, but are not
limited to, total chlorine colorimetric tests, total chlorine x-ray
fluorescence tests, total chlorine microcoulometric tests, and rapid
immunoassay tests.
PCB household waste means PCB waste that is generated by residents
on the premises of a temporary or permanent residence for individuals
(including individually owned or rented units of a multi-unit
construction), and that is composed primarily of materials found in
wastes generated by consumers in their homes. PCB household waste
includes unwanted or discarded non-commercial vehicles (prior to
shredding), household items, and appliances or appliance parts and
wastes generated on the premises of a residence for individuals as a
result of routine household maintenance by or on behalf of the
resident. Bulk or commingled liquid PCB wastes at concentrations of
<gr-thn-eq>50 ppm, demolition and renovation wastes, and industrial or
heavy duty equipment with PCBs are not household wastes.
* * * * *
PCB Item means any PCB Article, PCB Article Container, PCB
Container, PCB Equipment, or anything that deliberately or
unintentionally contains or has as a part of it any PCB or PCBs.
* * * * *
PCB/radioactive waste means PCBs regulated for disposal under
subpart D of this part that also contain source, special nuclear, or
byproduct material subject to regulation under the Atomic Energy Act of
1954, as amended, or naturally-occurring or accelerator-produced
radioactive material.
* * * * *
PCB remediation waste means waste containing PCBs as a result of a
spill, release, or other unauthorized disposal, at the following
concentrations: Materials disposed of prior to April 18, 1978, that are
currently at concentrations <gr-thn-eq>50 ppm PCBs, regardless of the
concentration of the original spill; materials which are currently at
any volume or concentration where the original source was
<gr-thn-eq>500 ppm PCB beginning on April 18, 1978, or <gr-thn-eq>50
ppm PCB beginning on July 2, 1979; and materials which are currently at
any concentration if the PCBs are from a source not authorized for use
under this part. PCB remediation waste means soil, rags, and other
debris generated as a result of any PCB spill cleanup, including, but
not limited to:
(1) Environmental media containing PCBs, such as soil and gravel;
dredged materials, such as sediments, settled
[[Page 35439]]
sediment fines, and aqueous decantate from sediment.
(2) Sewage sludge containing <50 ppm PCBs and not in use according
to Sec. 761.20(a)(4); PCB sewage sludge; commercial or industrial
sludge contaminated as the result of a spill of PCBs including sludges
located in or removed from any pollution control device; aqueous
decantate from an industrial sludge.
(3) Buildings and other man-made structures, such as concrete or
wood floors or walls contaminated from a leaking PCB or PCB-
Contaminated transformer, porous surfaces and non-porous surfaces.
* * * * *
PCB sewage sludge means sewage sludge as defined in 40 CFR 503.9(w)
which contains <gr-thn-eq>50 ppm PCBs, as measured on a dry weight
basis.
* * * * *
PCB Transformer means any transformer that contains <gr-thn-eq>500
ppm PCBs. For PCB concentration assumptions applicable to transformers
containing 1.36 kilograms (3 lbs.) or more of fluid other than mineral
oil, see Sec. 761.2. For provisions permitting reclassification of
electrical equipment, including PCB Transformers, containing
<gr-thn-eq>500 ppm PCBs to PCB-Contaminated Electrical Equipment, see
Sec. 761.30(a) and (h).
* * * * *
Performance-based organic decontamination fluid (PODF) means
kerosene, diesel fuel, terpene hydrocarbons, and terpene hydrocarbon/
alcohol mixtures.
* * * * *
Porous surface means any surface that allows PCBs to penetrate or
pass into itself including, but not limited to, paint or coating on
metal; corroded metal; fibrous glass or glass wool; unglazed ceramics;
ceramics with a porous glaze; porous building stone such as sandstone,
travertine, limestone, or coral rock; low-density plastics such as
styrofoam and low-density polyethylene; coated (varnished or painted)
or uncoated wood; concrete or cement; plaster; plasterboard; wallboard;
rubber; fiberboard; chipboard; asphalt; or tar paper. For purposes of
cleaning and disposing of PCB remediation waste, porous surfaces have
different requirements than non-porous surfaces.
* * * * *
Qualified incinerator means one of the following:
* * * * *
(2) A high efficiency boiler which complies with the criteria of
Sec. 761.71(a)(1), and for which the operator has given written notice
to the appropriate EPA Regional Administrator in accordance with the
notification requirements for the burning of mineral oil dielectric
fluid under Sec. 761.71(a)(2).
* * * * *
RCRA means the Resource Conservation and Recovery Act (40 U.S.C.
6901 et seq.).
* * * * *
Research and development (R&D) for PCB disposal means
demonstrations for commercial PCB disposal approvals, pre-demonstration
tests, tests of major modifications to previously approved PCB disposal
technologies, treatability studies for PCB disposal technologies which
have not been approved, development of new disposal technologies, and
research on chemical transformation processes including, but not
limited to, biodegradation.
* * * * *
Sewage sludge means sewage sludge as defined in Sec. 503.9(w) of
this chapter that contains <50 ppm (on a dry weight basis) PCBs.
* * * * *
Soil washing means the extraction of PCBs from soil using a
solvent, recovering the solvent from the soil, separating the PCBs from
the recovered solvent for disposal, and then disposal or reuse of the
solvent.
Standard wipe sample means a sample collected for chemical
extraction and analysis using the standard wipe test as defined in
Sec. 761.123. Except as designated elsewhere in part 761, the minimum
surface area to be sampled shall be 100 cm<SUP>2</SUP>.
* * * * *
SW-846 means the document having the title ``SW-846, Test Methods
for Evaluating Solid Waste,'' which is available from either the
National Technical Information Service (NTIS, U.S. Department of
Commerce, 5285 Port Royal Rd., Springfield, VA 22161, telephone: (703)
487-4650 or the U.S. Government Printing Office (U.S. GPO, 710 North
Capitol St., NW., Washington, DC 20401, telephone: (202) 783-3238.
* * * * *
TSCA means the Toxic Substances Control Act (15 U.S.C. 2601 et
seq.).
* * * * *
TSCA PCB Coordinated Approval means the process used to recognize
other Federal or State waste management documents governing the
storage, cleanup, treatment, and disposal of PCB wastes. It is the
mechanism under TSCA for accomplishing review, coordination, and
approval of PCB waste management activities which are conducted outside
of the TSCA PCB approval process, but require approval under the TSCA
PCB regulations at 40 CFR part 761.
* * * * *
Unit means a particular building, structure, or cell used to manage
PCB waste (including, but not limited to, a building used for PCB waste
storage, a landfill, an industrial boiler, or an incinerator).
U.S. GPO means the U.S. Government Printing Office, 710 North
Capitol St., NW., Washington, DC 20401.
* * * * *
Wet weight means reporting chemical analysis results by including
either the weight, or the volume and density, of all liquids.
* * * * *
e. In Sec. 761.19, the table in paragraph (b), in the second
column, by revising the reference to ``Sec. 761.60(a)(3)(iii)(B)(6)''
wherever it appears to read ``Sec. 761.71(b)(2)(vi)'' and by revising
the introductory text of paragraph (b) to read as follows:
Sec. 761.19 References.
* * * * *
(b) Incorporation by reference. The following material is
incorporated by reference, and is available for inspection at the
Office of the Federal Register, 800 North Capitol St., NW., Suite 700,
Washington, DC. These incorporations by reference were approved by the
Director of the Office of the Federal Register. These materials are
incorporated as they exist on the date of approval and a notice of any
change in these materials will be published in the Federal Register.
Copies of the incorporated material are available for inspection at the
TSCA Nonconfidential Information Center (7407), Rm. B607, Northeast
Mall, Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 401 M St., SW., Washington, DC 20460. Copies of the
incorporated material may be obtained from the American Society for
Testing and Materials (ASTM), 1916 Race Street, Philadelphia, PA 19103.
* * * * *
f. Throughout part 761, by revising the references to ``Director,
Chemical Management Division'' and ``Director, CMD,'' to read
``Director, National Program Chemicals Division''.
g. In Sec. 761.20, by revising the section heading and paragraphs
(a)(4), (c)(2), and (c)(5) to read as follows:
Sec. 761.20 Prohibitions and exceptions.
* * * * *
(a) * * *
(4) An authorization is not required to use sewage sludge where the
uses are regulated at parts 257, 258, and 503 of this chapter. No
person may blend or otherwise dilute PCBs regulated for disposal,
including PCB sewage sludge
[[Page 35440]]
and sewage sludge not used pursuant to parts 257, 258, and 503 of this
chapter, for purposes of use or to avoid disposal requirements under
this part. Except as explicitly provided in subpart D of this part, no
person may dispose of regulated PCB wastes including, but not limited
to, PCB remediation waste, PCB bulk product waste, PCBs, and PCB
industrial sludges, into treatment works, as defined in Sec. 503.9(aa)
of this chapter.
* * * * *
(c) * * *
(2) Any person may process and distribute in commerce for disposal
PCBs at concentrations of <gr-thn-eq>50 ppm, or PCB Items with PCB
concentrations of <gr-thn-eq>50 ppm, if they comply with the applicable
provisions of this part.
(i) Processing activities which are primarily associated with and
facilitate storage or transportation for disposal do not require a TSCA
PCB storage or disposal approval.
(ii) Processing activities which are primarily associated with and
facilitate treatment, as defined in Sec. 261.10 of this chapter, or
disposal require a TSCA PCB disposal approval unless they are part of
an existing approval, are part of a self-implementing activity under
Sec. 761.61(a) or Sec. 761.79(b) or (c), or are otherwise specifically
allowed under subpart D of this part.
(iii) With the exception of provisions in Sec. 761.60(a)(2) and
(a)(3), in order to meet the intent of Sec. 761.1(b), processing,
diluting, or otherwise blending of waste prior to being introduced into
a disposal unit for purposes of meeting a PCB concentration limit shall
be done in accordance with a TSCA PCB disposal approval or comply with
the requirements of Sec. 761.79.
(iv) Where the rate of delivering liquids or non-liquids into a PCB
disposal unit is an operating parameter, this rate shall be a condition
of the TSCA PCB disposal approval for the unit when an approval is
required.
* * * * *
(5) Decontaminated materials. Any person may distribute in commerce
equipment, structures, or other liquid or non-liquid materials that
were contaminated with PCBs <gr-thn-eq>50 ppm, including those not
otherwise authorized for distribution in commerce under this part,
provided that one of the following applies:
(i) The materials were decontaminated in accordance with a TSCA PCB
disposal approval issued under subpart D of this part, with
Sec. 761.79, or with applicable EPA PCB spill cleanup policies in
effect at the time of the decontamination.
(ii) If not previously decontaminated, the materials now meet an
applicable decontamination standard in Sec. 761.79(b).
* * * * *
h. Section 761.30 is amended as follows:
i. Paragraph (a)(1) is amended by removing (a)(1)(iii)(A) through
(a)(1)(iii)(C)(2)(i), and (a)(1)(iii)(D), and by redesignating
(a)(1)(iii)(C)(2)(ii) and (a)(1)(iii)(C)(2)(iii) as (a)(1)(iii)(A) and
(a)(1)(iii)(B), respectively; by revising paragraph (a)(1)(vi); in
paragraph (a)(1)(vii)(C), by revising the phrase ``280/120 volt
radial'' to read ``208/120 volt radial''; in paragraph (a)(1)(x) by
revising the reference to ``Sec. 761.60'' to read ``subpart D of this
part''; by adding new paragraphs (a)(1)(xii)(I) and (a)(1)(xii)(J); in
paragraph (a)(1)(xv) introductory text by revising the reference to
``Sec. 761.3'' to read ``Sec. 761.2''; and by revising paragraph
(a)(1)(xv)(D).
ii. Paragraph (b) is amended by revising paragraph (b)(1) and by
removing paragraph (b)(2)(ii) and redesignating paragraphs (b)(2)(iii)
through (b)(2)(vii) as (b)(2)(ii) through (b)(2)(vi), respectively.
iii. By revising paragraphs (c), (d), (e), (h)(1)(ii), (i), (j),
(k) and (p); removing and reserving paragraphs (g), (n), and (o); and
adding paragraphs (h)(1)(iii), (q), (r), (s), (t), and (u).
The revisions and additions read as follows:
Sec. 761.30 Authorizations.
(a) * * *
(1) * * *
(vi)(A) No later than December 28, 1998 all owners of PCB
Transformers, including those in storage for reuse, must register their
transformers with the Environmental Protection Agency, National Program
Chemicals Division, Office of Pollution Prevention and Toxics (7404),
401 M St., SW., Washington, DC 20460. This registration requirement is
subject to the limitations in paragraph (a)(1) of this section.
(1) A transformer owner who assumes a transformer is a PCB-
Contaminated transformer, and discovers after December 28, 1998 that it
is a PCB-Transformer, must register the newly-identified PCB
Transformer, in writing, with the Environmental Protection Agency no
later than 30 days after it is identified as such. This requirement
does not apply to transformer owners who have previously registered
with the EPA PCB Transformers located at the same address as the
transformer that they assumed to be PCB-Contaminated and later
determined to be a PCB Transformer.
(2) A person who takes possession of a PCB Transformer after
December 28, 1998 is not required to register or re-register the
transformer with the EPA.
(B) Any person submitting a registration under this section must
include:
(1) Company name and address.
(2) Contact name and telephone number.
(3) Address where these transformers are located. For mobile
sources such as ships, provide the name of the ship.
(4) Number of PCB Transformers and the total weight in kilograms of
PCBs contained in the transformers.
(5) Whether any transformers at this location contain flammable
dielectric fluid (optional).
(6) Signature of the owner, operator, or other authorized
representative certifying the accuracy of the information submitted.
(C) A transformer owner must retain a record of each PCB
Transformer's registration (e.g., a copy of the registration and the
return receipt signed by EPA) with the inspection and maintenance
records required for each PCB Transformer under paragraph
(a)(1)(xii)(I) of this section.
(D) A transformer owner must comply with all requirements of
paragraph (a)(1)(vi)(A) of this section to continue the PCB-
Transformer's authorization for use, or storage for reuse, pursuant to
this section and TSCA section 6(e)(2)(B).
* * * * *
(xii) * * *
(I) Record of the registration of PCB Transformer(s).
(J) Records of transfer of ownership of a PCB Item (excluding
intact non-leaking small capacitors) with a PCB concentration of
<gr-thn-eq>500 ppm, when records are not maintained in compliance with
Sec. 761.180(a)(2).
* * * * *
(xv) * * *
(D) Register the PCB Transformer in writing with the building owner
within 30 days of discovery.
* * * * *
(b) * * *
(1) Use restrictions. After July 1, 1986, use of railroad
transformers that contain dielectric fluids with a PCB concentration
>1,000 ppm is prohibited.
* * * * *
(c) Use in mining equipment. After January 1, 1982, PCBs may be
used in mining equipment only at a concentration level of <50 ppm.
(d) Use in heat transfer systems. After July 1, 1984, PCBs may be
used in heat transfer systems only at a concentration level of < 50
ppm. Heat transfer systems that were in operation after July 1, 1984,
with a concentration level of <50 ppm PCBs may be serviced to maintain
a concentration level of <50 ppm PCBs.
[[Page 35441]]
Heat transfer systems may only be serviced with fluids containing <50
ppm PCBs.
(e) Use in hydraulic systems. After July 1, 1984, PCBs may be used
in hydraulic systems only at a concentration level of <50 ppm.
Hydraulic systems that were in operation after July 1, 1984, with a
concentration level of <50 ppm PCBs may be serviced to maintain a
concentration level of <50 ppm PCBs. Hydraulic systems may only be
serviced with fluids containing <50 ppm PCBs.
* * * * *
(g) [Reserved]
(h) * * *
(1) * * *
(ii) Use and storage for reuse of voltage regulators which contain
1.36 kilograms (3 lbs) or more of dielectric fluid with a PCB
concentration of <gr-thn-eq>500 ppm are subject to the following
provisions:
(A) The owner of the voltage regulator must mark its location in
accordance with Sec. 761.40.
(B) If a voltage regulator is involved in a fire-related incident,
the owner must immediately report the incident to the National Response
Center (Toll-free: 1-800-424-8802; in Washington, DC: 202-426-2675). A
fire-related incident is defined as any incident that involves the
generation of sufficient heat and/or pressure, by any source, to result
in the violent or non-violent rupture of the voltage regulator and the
release of PCBs.
(C) The owner of the voltage regulator must inspect it in
accordance with the requirements of paragraphs (a)(1)(ix),
(a)(1)(xiii), and (a)(1)(xiv) of this section that apply to PCB
Transformers.
(D) The owner of the voltage regulator must comply with the
recordkeeping and reporting requirements at Sec. 761.180.
(iii) The owner of a voltage regulator that assumes it contains
<500 ppm PCBs as provided in Sec. 761.2, and discovers by testing that
it is contaminated at <gr-thn-eq>500 ppm PCBs, must comply with
paragraph (h)(1)(ii)(A) of this section 7 days after the discovery, and
paragraphs (h)(1)(ii)(B), (h)(1)(ii)(C), and (h)(1)(ii)(D) of this
section immediately upon discovery.
* * * * *
(i) Use and reuse of PCBs in natural gas pipeline systems; use and
reuse of PCB-Contaminated natural gas pipe and appurtenances. (1)(i)
PCBs are authorized for use in natural gas pipeline systems at
concentrations <50 ppm.
(ii) PCBs are authorized for use, at concentrations <gr-thn-eq>50
ppm, in natural gas pipeline systems not owned or operated by a seller
or distributor of natural gas.
(iii)(A) PCBs are authorized for use, at concentrations
<gr-thn-eq>50 ppm, in natural gas pipeline systems owned or operated by
a seller or distributor of natural gas, if the owner or operator:
(1) Submits to EPA, upon request, a written description of the
general nature and location of PCBs <gr-thn-eq>50 ppm in their natural
gas pipeline system. Each written description shall be submitted to the
EPA Regional Administrator having jurisdiction over the segment or
component of the system (or the Director, National Program Chemicals
Division, Office of Prevention, Pesticides, and Toxic Substances, if
the system is contaminated in more than one region).
(2) Within 120 days after discovery of PCBs <gr-thn-eq>50 ppm in
natural gas pipeline systems, or by December 28, 1998, whichever is
later, characterizes the extent of PCB contamination by collecting and
analyzing samples to identify the upstream and downstream end points of
the segment or component where PCBs <gr-thn-eq>50 ppm were discovered.
(3) Within 120 days of characterization of the extent of PCB
contamination, or by December 28, 1998, whichever is later, samples and
analyzes all potential sources of introduction of PCBs into the natural
gas pipeline system for PCBs <gr-thn-eq>50 ppm. Potential sources
include natural gas compressors, natural gas scrubbers, natural gas
filters, and interconnects where natural gas is received upstream from
the most downstream sampling point where PCBs <gr-thn-eq>50 ppm were
detected; potential sources exclude valves, drips, or other small
liquid condensate collection points.
(4) Within 1 year of characterization of the extent of PCB
contamination, reduces all demonstrated sources of PCBs <gr-thn-eq>50
ppm to <50 ppm, or removes such sources from the natural gas pipeline
system; or implements other engineering measures or methods to reduce
PCB levels to <50 ppm and to prevent further introduction of PCBs
<gr-thn-eq>50 ppm into the natural gas pipeline system (e.g., pigging,
decontamination, in-line filtration).
(5) Repeats sampling and analysis at least annually where PCBs are
<gr-thn-eq>50 ppm, until sampling results indicate the natural gas
pipeline segment or component is <50 ppm PCB in two successive samples
with a minimum interval between samples of 180 days.
(6) Marks aboveground sources of PCB liquids in natural gas
pipeline systems with the M<INF>L</INF> Mark in accordance with
Sec. 761.45(a), where such sources have been demonstrated through
historical data or recent sampling to contain PCBs <gr-thn-eq>50 ppm.
(B) Owners or operators of natural gas pipeline systems which do
not include potential sources of PCB contamination as described in
paragraph (i)(1)(iii)(A)(3) of this section containing <gr-thn-eq>50
ppm PCB are not subject to paragraphs (i)(1)(iii)(A)(2),
(i)(1)(iii)(A)(3), (i)(1)(iii)(A)(4), or (i)(1)(iii)(A)(6) of this
section. Owners or operators of these systems, however, must comply
with the other provisions of this section (e.g., sampling of any
collected PCB liquids and recordkeeping).
(C) The owner or operator of a natural gas pipeline system must
document in writing all data collected and actions taken, or not taken,
pursuant to the authorization in paragraph (i)(1)(iii)(A) of this
section. They must maintain the information for 3 years after the PCB
concentration in the component or segment is reduced to <50 ppm, and
make it available to EPA upon request.
(D) The Director, National Program Chemicals Division, after
consulting with the appropriate EPA Region(s) may, based on a finding
of no unreasonable risk, modify in writing the requirements of
paragraph (i)(1)(iii)(A) of this section, including extending any
compliance date, approving alternative formats for documentation,
waiving one or more requirements for a segment or component, requiring
sampling and analysis, and requiring implementation of engineering
measures to reduce PCB concentrations. EPA will make such modifications
based on the natural gas pipeline system size, configuration, and
current operating conditions; nature, extent or source of
contamination; proximity of contamination to end-users; or previous
sampling, monitoring, remedial actions or documentation of activities
taken regarding compliance with this authorization or other applicable
Federal, State, or local laws and regulations. The Director, National
Program Chemicals Division, may delegate the authority described in
this paragraph, upon request, to the appropriate EPA Region.
(E) The owner or operator of a natural gas pipeline system may use
historical data to fulfill the requirements of paragraphs
(i)(1)(iii)(A)(1), (i)(1)(iii)(A)(2) and (i)(1)(iii)(A)(3) of this
section. They may use documented historical actions taken to reduce PCB
concentrations in known sources; decontaminate components or segments
of natural gas pipeline systems; or otherwise to reduce PCB levels to
fulfill the requirements of paragraph (i)(1)(iii)(A)(4) of this
section.
(2) Any person may reuse PCB-Contaminated natural gas pipe and
appurtenances in a natural gas pipeline
[[Page 35442]]
system, provided all free-flowing liquids have been removed.
(3) Any person may use PCB-Contaminated natural gas pipe, drained
of all free-flowing liquids, in the transport of liquids (e.g., bulk
hydrocarbons, chemicals, petroleum products, or coal slurry), as casing
to provide secondary containment or protection (e.g., protection for
electrical cable), as industrial structural material (e.g., fence
posts, sign posts, or bridge supports), as temporary flume at
construction sites, as equipment skids, as culverts under
transportation systems in intermittent flow situations, for sewage
service with written consent of the Publicly Owned Treatment Works
(POTW), for steam service, as irrigation systems (<20 inch diameter) of
less than 200 miles in length, and in a totally enclosed compressed air
system.
(4) Any person characterizing PCB contamination in natural gas pipe
or natural gas pipeline systems must do so by analyzing liquids
collected at existing condensate collection points in the pipe or
pipeline system. The level of PCB contamination found at a collection
point is assumed to extend to the next collection point downstream. Any
person characterizing multi-phasic liquids must do so in accordance
with Sec. 761.1(b)(4); if no liquids are present, they must use
standard wipe samples in accordance with subpart M of this part.
(5)(i) Any person disposing of liquids containing PCBs
<gr-thn-eq>50 ppm removed, spilled, or otherwise released from a
natural gas pipeline system must do so in accordance with
Sec. 761.60(a) based on the PCB concentration at the time of removal
from the system. Any person disposing of materials contaminated by
spills or other releases of PCBs <gr-thn-eq>50 ppm from a natural gas
pipeline systems, must do so in accordance with Secs. 761.61 or 761.79,
as applicable.
(ii) Any person who markets or burns for energy recovery liquids
containing PCBs at concentrations <50 ppm PCBs at the time of removal
from a natural gas pipeline system must do so in accordance with the
provisions pertaining to used oil at Sec. 761.20(e). No other use of
liquid containing PCBs at concentrations above the quantifiable level/
level of detection removed from a natural gas pipeline system is
authorized.
(j) Research and development. For purposes of this section,
authorized research and development (R&D) activities include, but are
not limited to: the chemical analysis of PCBs, including analyses to
determine PCB concentration; determinations of the physical properties
of PCBs; studies of environmental transport processes; studies of
biochemical transport processes; studies of effects of PCBs on the
environment; and studies of the health effects of PCBs, including
direct toxicity and toxicity of metabolic products of PCBs. Authorized
R&D activities do not include research, development, or analysis for
the development of any PCB product. Any person conducting R&D
activities under this section is also responsible for determining and
complying with all other applicable Federal, State, and local laws and
regulations. Although the use of PCBs and PCBs in analytical reference
samples derived from waste material is authorized in conjunction with
PCB-disposal related activities, R&D for PCB disposal (as defined under
Sec. 761.3) is addressed in Sec. 761.60(j). PCBs and PCBs in analytical
reference samples derived from waste materials are authorized for use,
in a manner other than a totally enclosed manner, provided that:
(1) They obtain the PCBs and PCBs in analytical reference samples
derived from waste materials from sources authorized under Sec. 761.80
to manufacture, process, and distribute PCBs in commerce and the PCBs
are packaged in compliance with the Hazardous Materials Regulations at
49 CFR parts 171 through 180.
(2) They store all PCB wastes resulting from R&D activities (e.g.,
spent laboratory samples, residuals, contaminated media such as
clothing, etc.) in compliance with Sec. 761.65(b) and dispose of all
PCB wastes in compliance with Sec. 761.64.
(3) They use manifests, pursuant to subpart K of this part, for all
R&D PCB wastes being transported from the R&D facility to a commercial
storer and/or a disposal facility. However, no manifests are required
if the residuals or unused analytical reference samples of PCB waste
material are returned either to the physical location where the samples
were collected or a location where other regulated PCBs from the
physical location where the samples were collected are being stored for
disposal.
(4) No person may manufacture, process, or distribute in commerce
PCBs for research and development unless they have been granted an
exemption to do so under TSCA section 6(e)(3)(B).
(k) Use in scientific instruments. PCBs may be used indefinitely in
scientific instruments, for example, in oscillatory flow birefringence
and viscoelasticity instruments for the study of the physical
properties of polymers, as microscopy mounting fluids, as microscopy
immersion oil, and as optical liquids in a manner other than a totally
enclosed manner. No person may manufacture, process, or distribute in
commerce PCBs for use in scientific instruments unless they have been
granted an exemption to do so under TSCA section 6(e)(3)(B).
* * * * *
(n)--(o) [Reserved]
(p) Continued use of porous surfaces contaminated with PCBs
regulated for disposal by spills of liquid PCBs. (1) Any person may use
porous surfaces contaminated by spills of liquid PCBs at concentrations
>10 <greek-m>g/100 cm<SUP>2</SUP> for the remainder of the useful life
of the surfaces and subsurface material if the following conditions are
met:
(i) The source of PCB contamination is removed or contained to
prevent further release to porous surfaces.
(ii) If the porous surface is accessible to superficial surface
cleaning:
(A) The double wash rinse procedure in subpart S of this part is
conducted on the surface to remove surface PCBs.
(B) The treated surface is allowed to dry for 24 hours.
(iii) After accessible surfaces have been cleaned according to
paragraph (p)(1)(ii) of this section and for all surfaces inaccessible
to cleanup:
(A) The surface is completely covered to prevent release of PCBs
with:
(1) Two solvent resistant and water repellent coatings of
contrasting colors to allow for a visual indication of wear through or
loss of outer coating integrity; or
(2) A solid barrier fastened to the surface and covering the
contaminated area or all accessible parts of the contaminated area.
Examples of inaccessible areas are underneath a floor-mounted
electrical transformer and in an impassible space between an electrical
transformer and a vault wall.
(B) The surface is marked with the M<INF>L</INF> Mark in a location
easily visible to individuals present in the area; the M<INF>L</INF>
Mark shall be placed over the encapsulated area or the barrier to the
encapsulated area.
(C) M<INF>L</INF> Marks shall be replaced when worn or illegible.
(2) Removal of a porous surface contaminated with PCBs from its
location or current use is prohibited except for removal for disposal
in accordance with Secs. 761.61 or 761.79 for surfaces contaminated by
spills, or Sec. 761.62 for manufactured porous surfaces.
(q) [Reserved]
(r) Use in and servicing of rectifiers. Any person may use PCBs at
any concentration in rectifiers for the remainder of the PCBs' useful
life, and may use PCBs <50 ppm in servicing (including rebuilding)
rectifiers.
(s) Use of PCBs in air compressor systems. (1) Any person may use
PCBs
[[Page 35443]]
in air compressor systems at concentrations <50 ppm.
(2) Any person may use PCBs in air compressor systems (or
components thereof) at concentrations <gr-thn-eq>50 ppm provided that:
(i) All free-flowing liquids containing PCBs <gr-thn-eq>50 ppm are
removed from the air compressor crankcase and the crankcase is refilled
with non-PCB liquid.
(ii) Other air compressor system components contaminated with PCBs
<gr-thn-eq>50 ppm, are decontaminated in accordance with Sec. 761.79 or
disposed of in accordance with subpart D of this part.
(iii) Air compressor piping with a nominal inside diameter of <2
inches is decontaminated by continuous flushing for 4 hours, at no <300
gallons per hour (Sec. 761.79 contains solvent requirements).
(3) The requirements in paragraph (s)(2) of this section must be
completed by August 30, 1999 or within 1 year of the date of discovery
of PCBs at <gr-thn-eq>50 ppm in the air compressor system, whichever is
later. The EPA Regional Administrator for the EPA Region in which an
air compressor system is located may, at his/her discretion and in
writing, extend this timeframe.
(t) Use of PCBs in other gas or liquid transmission systems. (1)
PCBs are authorized for use in intact and non-leaking gas or liquid
transmission systems at concentrations <50 ppm PCBs.
(2) PCBs are authorized for use at concentrations <gr-thn-eq>50 ppm
in intact and non-leaking gas or liquid transmission systems not owned
or operated by a seller or distributor of the gas or liquid transmitted
in the system.
(3) Any person may use PCBs at concentrations <gr-thn-eq>50 ppm in
intact and non-leaking gas or liquid transmission systems, with the
written approval of the Director, National Program Chemicals Division,
subject to the requirements applicable to natural gas pipeline systems
at paragraphs (i)(1)(iii)(A), (i)(1)(iii)(C) through (i)(1)(iii)(E),
and (i)(2) through (i)(5) of this section.
(u) Use of decontaminated materials. (1) Any person may use
equipment, structures, other non-liquid or liquid materials that were
contaminated with PCBs during manufacture, use, servicing, or because
of spills from, or proximity to, PCBs <gr-thn-eq>50 ppm, including
those not otherwise authorized for use under this part, provided:
(i) The materials were decontaminated in accordance with:
(A) A TSCA PCB disposal approval issued under subpart D of this
part;
(B) Section 761.79; or
(C) Applicable EPA PCB spill cleanup policies (e.g., TSCA, RCRA,
CERCLA, EPA regional) in effect at the time of the decontamination; or
(ii) If not previously decontaminated, the materials now meet an
applicable decontamination standard in Sec. 761.79(b).
(2) No person shall use or reuse materials decontaminated in
accordance with paragraph (u)(1)(i) of this section or meeting an
applicable decontamination standard in paragraph (u)(1)(ii) of this
section, in direct contact with food, feed, or drinking water unless
otherwise allowed under this section or this part.
(3) Any person may use water containing PCBs at concentrations
<ls-thn-eq>0.5<greek-m>g/L PCBs without restriction.
(4) Any person may use water containing PCBs at concentrations <200
<greek-m>g/L (i.e., < 200 ppb PCBs) for non-contact use in a closed
system where there are no releases (e.g., as a non-contact cooling
water).
i. By adding Sec. 761.35 to read as follows:
Sec. 761.35 Storage for reuse.
(a) The owner or operator of a PCB Article may store it for reuse
in an area which is not designed, constructed, and operated in
compliance with Sec. 761.65(b), for no more than 5 years after the date
the Article was originally removed from use (e.g., disconnected
electrical equipment) or 5 years after August 28, 1998, whichever is
later, if the owner or operator complies with the following conditions:
(1) Follows all use requirements at Sec. 761.30 and marking
requirements at subpart C of this part that are applicable to the PCB
Article.
(2) Maintains records starting at the time the PCB Article is
removed from use or August 28, 1998. The records must indicate:
(i) The date the PCB Article was removed from use or August 28,
1998, if the removal date is not known.
(ii) The projected location and the future use of the PCB Article.
(iii) If applicable, the date the PCB Article is scheduled for
repair or servicing.
(b) The owner or operator of a PCB Article may store it for reuse
in an area that does not comply with Sec. 761.65(b) for a period longer
than 5 years, provided that the owner or operator has received written
approval from the EPA Regional Administrator for the Region in which
the PCB Article is stored. An owner or operator of a PCB Article
seeking approval to extend the 5-year period must submit a request for
extension to the EPA Regional Administrator at least 6 months before
the 5-year storage for reuse period expires and must include an item-
by-item justification for the desired extension. The EPA Regional
Administrator may include any conditions to such approval deemed
necessary to protect health or the environment. The owner or operator
of the PCB Article being stored for reuse must comply with the other
applicable provisions of this part, including the record retention
requirements at Sec. 761.180(a).
(c) Any person may store a PCB Article for reuse indefinitely in:
(1) A unit in compliance with Sec. 761.65(b).
(2) A unit permitted under section 3004 of RCRA to manage hazardous
wastes in containers.
(3) A unit permitted by a State authorized under section 3006 of
RCRA to manage hazardous waste.
j. In Sec. 761.40, by revising paragraphs (a)(5), (b), (e), and
(h), and adding paragraphs (k) and (l) to read as follows:
Sec. 761.40 Marking requirements.
(a) * * *
(5) PCB Large Low Voltage Capacitors at the time of removal from
use (see also paragraph (k) of this section).
* * * * *
(b) As of October 1, 1979, each transport vehicle loaded with PCB
Containers that contain more than 45 kg (99.4 lbs.) of liquid PCBs at
concentrations of <gr-thn-eq>50 ppm or with one or more PCB
Transformers shall be marked on each end and each side with the
M<INF>L</INF> mark as described in Sec. 761.45(a).
* * * * *
(e) As of October 1, 1979, applicable PCB Items in paragraphs
(a)(1), (a)(6), (a)(7), and (a)(8) of this section containing PCBs in
concentrations of 50 to 500 ppm shall be marked with the M<INF>L</INF>
mark as described in Sec. 761.45(a).
* * * * *
(h) All marks required by this subpart must be placed in a position
on the exterior of the PCB Items, storage units, or transport vehicles
so that the marks can be easily read by any persons inspecting or
servicing the marked PCB Items, storage units, or transport vehicles.
* * * * *
(k) As of April 26, 1999 the following PCB Items shall be marked
with the M<INF>L</INF> mark as described in Sec. 761.45(a):
(1) All PCB Large Low Voltage Capacitors not marked under paragraph
(a) of this section shall be marked individually, or if one or more PCB
Large Low Voltage Capacitors are installed in a protected location such
as on a power pole, or structure, or behind
[[Page 35444]]
a fence, then the owner or operator shall mark the pole, structure, or
fence with the M<INF>L</INF> mark, and maintain a record or procedure
identifying the PCB Capacitors at the protected location. PCB Large Low
Voltage Capacitors in inaccessible locations inside equipment need not
be marked individually, provided the owner or operator marks the
equipment in accordance with paragraph (k)(2) of this section, and
marks the individual capacitors at the time of removal from use in
accordance with paragraph (a) of this section.
(2) All equipment not marked under paragraph (a) of this section
containing a PCB Transformer or a PCB Large High or Low Voltage
Capacitor.
(l)(1) All voltage regulators with a PCB concentration of
<gr-thn-eq>500 ppm must be marked individually with the M<INF>L</INF>
mark as described in Sec. 761.45(a).
(2) Locations of voltage regulators containing PCBs <gr-thn-eq>500
ppm PCBs shall be marked as follows: the vault door, machinery room
door, fence, hallway, or means of access, other than grates or manhole
covers, must be marked with the M<INF>L</INF> mark as described in
Sec. 761.45(a).
k. By amending subpart D by removing the ``Note'' appearing just
after the heading for subpart D and adding Sec. 761.50, reading as
follows:
Sec. 761.50 Applicability.
(a) General PCB disposal requirements. Any person storing or
disposing of PCB waste must do so in accordance with subpart D of this
part. The following prohibitions and conditions apply to all PCB waste
storage and disposal:
(1) No person may open burn PCBs. Combustion of PCBs approved under
Sec. 761.60(a) or (e), or otherwise allowed under part 761, is not open
burning.
(2) No person may process liquid PCBs into non-liquid forms to
circumvent the high temperature incineration requirements of
Sec. 761.60(a).
(3) No person may discharge water containing PCBs to a treatment
works (as defined Sec. 503.9(aa) of this chapter) or to navigable
waters unless the PCB concentration is <3 <greek-m>g/L (approximately 3
ppb), or unless the discharge is in accordance with a PCB discharge
limit included in a permit issued under section 307(b) or 402 of the
Clean Water Act.
(4) Spills and other uncontrolled discharges of PCBs at
concentrations of <gr-thn-eq>50 ppm constitute the disposal of PCBs.
(5) Any person land disposing of non-liquid PCBs may avoid
otherwise-applicable sampling requirements by presuming that the PCBs
disposed of are <gr-thn-eq>500 ppm (or <gr-thn-eq>100 <greek-m>g/100
cm<SUP>2</SUP> if no free-flowing liquids are present).
(6) Any person storing or disposing of PCBs is also responsible for
determining and complying with all other applicable Federal, State, and
local laws and regulations.
(b) PCB waste. (1) PCB liquids. Any person removing PCB liquids
from use (i.e., not PCB remediation waste) must dispose of them in
accordance with Sec. 761.60(a), or decontaminate them in accordance
with Sec. 761.79.
(2) PCB Items. Any person removing from use a PCB Item containing
an intact and non-leaking PCB Article must dispose of it in accordance
with Sec. 761.60(b), or decontaminate it in accordance with
Sec. 761.79. PCB Items where the PCB Articles are no longer intact and
non-leaking are regulated for disposal as PCB bulk product waste under
Sec. 761.62(a) or (c).
(i) Fluorescent light ballasts containing PCBs only in an intact
and non-leaking PCB Small Capacitor are regulated for disposal under
Sec. 761.60(b)(2)(ii).
(ii) Fluorescent light ballasts containing PCBs in the potting
material are regulated for disposal as PCB bulk product waste under
Sec. 761.62.
(3) PCB remediation waste. PCB remediation waste, including PCB
sewage sludge, is regulated for cleanup and disposal in accordance with
Sec. 761.61.
(i) Any person responsible for PCB waste at concentrations
<gr-thn-eq>50 ppm placed in a land disposal facility, spilled, or
otherwise released into the environment prior to April 18, 1978, must
dispose of the waste as follows:
(A) Sites containing these wastes are presumed not to present an
unreasonable risk of injury to health or the environment from exposure
to PCBs at the site. However, the EPA Regional Administrator may inform
the owner or operator of the site that there is reason to believe that
spills, leaks, or other uncontrolled releases or discharges, such as
leaching, from the site constitute ongoing disposal that may present an
unreasonable risk of injury to health or the environment from exposure
to PCBs at the site, and may require the owner or operator to generate
data necessary to characterize the risk. If after reviewing any such
data, the EPA Regional Administrator makes a finding, that an
unreasonable risk exists, then he or she may direct the owner or
operator of the site to dispose of the PCB remediation waste in
accordance with Sec. 761.61 such that an unreasonable risk of injury no
longer exists.
(B) Unless directed by the EPA Regional Administrator to dispose of
PCB remediation waste in accordance with paragraph (b)(3)(i)(A) of this
section, any person responsible for PCB remediation waste placed in a
land disposal facility, spilled, or otherwise released into the
environment prior to April 18, 1978, who unilaterally decides to
dispose of that waste (for example, to obtain insurance or to sell the
property), is not required to cleanup in accordance with Sec. 761.61.
Disposal of the PCB remediation waste must comply with Sec. 761.61.
However, cleanup of those wastes that is not in complete compliance
with Sec. 761.61 will not afford the responsible party with relief from
the applicable PCB regulations for that waste.
(ii) Any person responsible for PCB waste placed in a land disposal
facility, spilled, or otherwise released into the environment on or
after April 18, 1978, must dispose of it as follows:
(A) In accordance with the PCB Spill Cleanup Policy (Policy) at
subpart G of this part, for those PCB remediation wastes that meet the
criteria of the Policy. Consult the Policy for a description of the
spills it covers and its notification and timing requirements.
(B) In accordance with Sec. 761.61. Complete compliance with
Sec. 761.61 does not create a presumption against enforcement action
for penalties for any unauthorized PCB disposal.
(iii) The owner or operator of a site containing PCB remediation
waste has the burden of proving the date that the waste was placed in a
land disposal facility, spilled, or otherwise released into the
environment, and the concentration of the original spill.
(4) PCB bulk product waste--(i) General. Any person disposing of
PCB bulk product waste must do so in accordance with Sec. 761.62. PCB
bulk product waste, as that term is defined in Sec. 761.3, is waste
that was <gr-thn-eq>50 ppm when originally removed from service, even
if its current PCB concentration is <50 ppm. PCB bulk product waste is
regulated for disposal based on the risk from the waste once disposed
of. For waste which is land disposed, the waste is regulated based on
how readily the waste is released from disposal to the environment, in
particular by leaching out from the land disposal unit.
(ii) Metal surfaces in contact with PCBs. Any person disposing of
metal surfaces in contact with PCBs (e.g., painted metal) may use
thermal decontamination procedures in accordance with Sec. 761.79(c)(6)
(see Sec. 761.62(a)(6)).
(5) PCB household waste. Any person storing or disposing of PCB
household
[[Page 35445]]
waste, as that term is defined in Sec. 761.3, must do so in accordance
with Sec. 761.63.
(6) PCB research and development waste. Any person disposing of PCB
wastes generated during and as a result of research and development for
use under Sec. 761.30(j), or for disposal under Sec. 761.60(j), must do
so in accordance with Sec. 761.64.
(7) PCB/Radioactive waste. (i) Any person storing PCB/radioactive
waste <gr-thn-eq>50 ppm PCBs must do so taking into account both its
PCB concentration and its radioactive properties, except as provided in
Sec. 761.65(a)(1), (b)(1)(ii), and (c)(6)(i).
(ii) Any person disposing of PCB/radioactive waste must do so
taking into account both its PCB concentration and its radioactive
properties. If, taking into account only the properties of the PCBs in
the waste (and not the radioactive properties of the waste), the waste
meets the requirements for disposal in a facility permitted, licensed,
or registered by a State as a municipal or non-municipal non-hazardous
waste landfill (e.g., PCB bulk product waste under Sec. 761.62(b)(1)),
then the person may dispose of the PCB/radioactive waste, without
regard to the PCB component of the waste, on the basis of its
radioactive properties in accordance with all applicable requirements
for the radioactive component of the waste.
(8) Porous surfaces. In most cases a person must dispose of porous
surfaces as materials where PCBs have penetrated far beneath the
surface, rather than a simple surface contamination. Any person
disposing of porous surfaces on which PCBs have been spilled and
meeting the definition of PCB remediation waste at Sec. 761.3 must do
so in accordance with Sec. 761.61(a)(5)(iii). Any person disposing of
porous surfaces which are part of manufactured non-liquid products
containing PCBs and meeting the definition of PCB bulk product waste at
Sec. 761.3 must do so in accordance with Sec. 761.62. Any person may
decontaminate concrete surfaces upon which PCBs have been spilled in
accordance with Sec. 761.79(b)(4), if the decontamination procedure is
commenced within 72 hours of the initial spill of PCBs to the concrete
or portion thereof being decontaminated. Any person may decontaminate
porous non-liquid PCBs in contact with non-porous surfaces, such as
underground metal fuel tanks coated with fire retardant resin or pitch,
for purposes of unrestricted use or disposal in a smelter in accordance
with Sec. 761.79(b)(3).
(c) Storage for disposal. Any person who holds PCB waste must store
it in accordance with Sec. 761.65.
(d) Performance specifications for disposal technologies--(1)
Incinerators. Any person using an incinerator to dispose of PCBs must
use an incinerator that meets the criteria set forth in Sec. 761.70.
(2) High efficiency boilers. Any person using a high efficiency
boiler to dispose of PCBs must use a boiler that meets the criteria set
forth in Sec. 761.71.
(3) Scrap metal recovery ovens and smelters. Any person using scrap
metal recovery ovens and smelters to dispose of PCBs must use a device
that meets the criteria set forth in Sec. 761.72.
(4) Chemical waste landfills. Any person using a chemical waste
landfill to dispose of PCBs must use a chemical waste landfill that
meets the criteria set forth in Sec. 761.75.
(e) TSCA PCB Coordinated Approval. Any person seeking a TSCA PCB
Coordinated Approval must follow the procedures set forth in
Sec. 761.77.
l. In Sec. 761.60 by revising paragraphs (a)(1) through (a)(3), by
removing paragraphs (a)(4), (a)(5), and (a)(6); in paragraph (b) by
adding introductory text just after the italic heading ``PCB
Articles,'' and by revising paragraphs (b)(1)(i)(B), (b)(2)(iv)
introductory text, (b)(2)(vi), revising paragraphs (b)(3) and (b)(4);
by redesignating paragraphs (b)(5) and (b)(6) as (b)(6) and (b)(7),
respectively; by adding new paragraphs (b)(5), (b)(6)(iii), and
(b)(6)(iv), and by revising newly designated (b)(6)(ii); in paragraph
(c)(3) by removing the term ``facility'' and adding, in its place, the
term ``unit''; removing and reserving paragraphs (d) and (f)(2);
revising paragraph (e); adding paragraphs (g)(1)(iii) and (g)(2)(iii);
by revising paragraph (i)(2), and adding paragraph (j) to read as
follows:
Sec. 761.60 Disposal requirements.
(a) PCB liquids. PCB liquids at concentrations <gr-thn-eq>50 ppm
must be disposed of in an incinerator which complies with Sec. 761.70,
except that PCB liquids at concentrations <gr-thn-eq>50 ppm and <500
ppm may be disposed of as follows:
(1) For mineral oil dielectric fluid, in a high efficiency boiler
according to Sec. 761.71(a).
(2) For liquids other than mineral oil dielectric fluid, in a high
efficiency boiler according to Sec. 761.71(b).
(3) For liquids from incidental sources, such as precipitation,
condensation, leachate or load separation and are associated with PCB
Articles or non-liquid PCB wastes, in a chemical waste landfill which
complies with Sec. 761.75 if:
(i) Disposal does not violate Sec. 268.32(a)(2) or
Sec. 268.42(a)(1) of this chapter.
(ii) Information is provided to or obtained by the owner or
operator of the chemical waste landfill that shows that the liquids do
not exceed 500 ppm PCB and are not an ignitable waste as described in
Sec. 761.75(b)(8)(iii).
(b) PCB Articles. This paragraph does not authorize disposal that
is otherwise prohibited in Sec. 761.20 or elsewhere in this part.
(1) * * *
(i) * * *
(B) In a chemical waste landfill approved under Sec. 761.75;
provided that all free-flowing liquid is removed from the transformer,
the transformer is filled with a solvent, the transformer is allowed to
stand for at least 18 continuous hours, and then the solvent is
thoroughly removed. Any person disposing of PCB liquids, including both
the dielectric fluid and all solvents used as a flush, that are removed
from the transformer, shall do so in accordance with paragraph (a)(1)
of this section or decontaminate them in accordance with Sec. 761.79.
Solvents may include kerosene, xylene, toluene, and other solvents in
which PCBs are readily soluble. Any person disposing of these PCB
liquids must ensure that the solvent flushing procedure is conducted in
accordance with applicable safety and health standards as required by
Federal or State regulations.
* * * * *
(2) * * *
(iv) Any person who manufactures or at any time manufactured PCB
Capacitors or PCB Equipment, and acquired the PCB Capacitor in the
course of such manufacturing, shall place the PCB Small Capacitors in a
container meeting the DOT packaging requirements at 49 CFR parts 171
through 180 and dispose of them in accordance with either of the
following:
* * * * *
(vi) Any person disposing of large PCB capacitors or small PCB
capacitors described in paragraph (b)(2)(iv) of this section in a
chemical waste landfill approved under Sec. 761.75, shall first place
them in a container meeting the DOT packaging requirements at 49 CFR
parts 171 through 180. In all cases, the person must fill the
interstitial space in the container with sufficient absorbent material
(such as soil) to absorb any liquid PCBs remaining in the capacitors.
(3) PCB hydraulic machines. (i) Any person disposing of PCB
hydraulic machines containing PCBs at concentrations of <gr-thn-eq>50
ppm, such as die casting machines, shall do so by one of the following
methods:
[[Page 35446]]
(A) In accordance with Sec. 761.79.
(B) In a facility which is permitted, licensed, or registered by a
State to manage municipal solid waste subject to part 258 of this
chapter or non-municipal non-hazardous waste subject to Secs. 257.5
through 257.30 of this chapter, as applicable (excluding thermal
treatment units).
(C) In an industrial furnace operating in compliance with
Sec. 761.72.
(D) In a disposal facility approved under this part.
(ii) All free-flowing liquid must be removed from each machine and
the liquid must be disposed of in accordance with the provisions of
paragraph (a) of this section. If the PCB liquid contains
<gr-thn-eq>1,000 ppm PCB, then the hydraulic machine must be
decontaminated in accordance with Sec. 761.79 or flushed prior to
disposal with a solvent listed at paragraph (b)(1)(i)(B) of this
section which contains <50 ppm PCB. The solvent must be disposed of in
accordance with paragraph (a) of this section or Sec. 761.79.
(4) PCB-Contaminated Electrical Equipment. Any person disposing of
any PCB-Contaminated Electrical Equipment, except capacitors, shall do
so by removing all free-flowing liquid from the electrical equipment
and disposing of the removed liquid in accordance with paragraph (a) of
this section. The drained PCB-Contaminated Electrical Equipment,
including any residual liquids, shall be disposed of by one of the
following methods:
(i)(A) In a facility which is permitted, licensed, or registered by
a State to manage municipal solid waste subject to part 258 of this
chapter or non-municipal non-hazardous waste subject to Secs. 257.5
through 257.30 of this chapter, as applicable (excluding thermal
treatment units).
(B) In an industrial furnace operating in compliance with
Sec. 761.72.
(C) In a disposal facility or process approved under this part.
(ii) Any person disposing of Large Capacitors that contain
<gr-thn-eq>50 ppm but <500 ppm PCBs shall do so in a disposal facility
approved under this part.
(iii) The storage for disposal of PCB-Contaminated Electrical
Equipment containing no free-flowing liquid is not regulated under
subpart D of this part.
(5) Natural gas pipeline systems containing PCBs. The owner or
operator of natural gas pipeline systems containing <gr-thn-eq>50 ppm
PCBs, when no longer in use, shall dispose of the system either by
abandonment in place of the pipe under paragraph (b)(5)(i) of this
section or removal with subsequent action under paragraph (b)(5)(ii) of
this section. Any person determining the PCB concentrations in natural
gas pipeline systems shall do so in accordance with paragraph
(b)(5)(iii) of this section.
(i) Abandonment. Natural gas pipe containing <gr-thn-eq>50 ppm PCBs
may be abandoned in place under one or more of the following
provisions:
(A) Natural gas pipe having a nominal inside diameter of
<ls-thn-eq>4 inches, and containing PCBs at any concentration but no
free-flowing liquids, may be abandoned in the place it was used to
transport natural gas if each end is sealed closed and the pipe is
either:
(1) Included in a public service notification program, such as a
``one-call'' system under 49 CFR 192.614(a) and (b).
(2) Filled to 50 percent or more of the volume of the pipe with
grout (such as a hardening slurry consisting of cement, bentonite, or
clay) or high density polyurethane foam.
(B) PCB-Contaminated natural gas pipe of any diameter, where the
PCB concentration was determined in accordance with subpart M of this
part after the last transmission of gas through the pipe or at the time
of abandonment, that contains no free-flowing liquids may be abandoned
in the place it was used to transport natural gas if each end is sealed
closed.
(C) Natural gas pipe of any diameter which contains PCBs at any
concentration but no free-flowing liquids, may be abandoned in the
place it was used to transport natural gas, if each end is sealed
closed, and either:
(1) The interior surface is decontaminated with one or more washes
of a solvent in accordance with the use and disposal requirements of
Sec. 761.79(d). This decontamination process must result in a recovery
of 95 percent of the solvent volume introduced into the system, and the
PCB concentration of the recovered wash must be <50 ppm (see
Sec. 761.79(a)(1) for requirements on use and disposal of
decontaminating fluids).
(2) The pipe is filled to 50 percent of the volume of the pipe with
grout (such as a hardening slurry-like cement, bentonite, or clay) or
high density polyurethane foam (except that only cement shall be used
as grout under rivers or streams) and each end is sealed closed.
(D) Natural gas pipe of any diameter which contains PCBs at any
concentration may be abandoned in place after decontamination in
accordance with Sec. 761.79(c)(3), (c)(4) or (h) or a PCB disposal
approval issued under Sec. 761.60(e) or Sec. 761.62(c).
(ii) Removal with subsequent action. Natural gas pipeline systems
may be disposed of under one of the following provisions:
(A) The following classifications of natural gas pipe containing no
free-flowing liquids may be disposed of in a facility permitted,
licensed, or registered by a State to manage municipal solid waste
subject to part 258 of this chapter or non-municipal non-hazardous
waste subject to Secs. 257.5 through 257.30 of this chapter, as
applicable (excluding thermal treatment units); scrap metal recovery
oven and smelter operating in compliance with the requirements of
Sec. 761.72; or a disposal facility approved under this part:
(1) PCB-Contaminated natural gas pipe of any diameter where the PCB
concentration was determined in accordance with subpart M of this part
after the last transmission of gas through the pipe or during removal
from the location it was used to transport natural gas.
(2) Natural gas pipe containing PCBs at any concentration and
having a nominal inside diameter <ls-thn-eq>4 inches.
(B) Any component of a natural gas pipeline system may be disposed
of under one of the following provisions:
(1) In an incinerator operating in compliance with Sec. 761.70.
(2) In a chemical waste landfill operating in compliance with
Sec. 761.75, provided that all free-flowing liquid PCBs have been
thoroughly drained.
(3) As a PCB remediation waste in compliance with Sec. 761.61.
(4) In accordance with Sec. 761.79.
(iii) Characterization of natural gas pipeline systems by PCB
concentration in condensate. (A) Any person disposing of a natural gas
pipeline system under paragraphs (b)(5)(i)(B) or (b)(5)(ii)(A)(1) of
this section must characterize it for PCB contamination by analyzing
organic liquids collected at existing condensate collection points in
the natural gas pipeline system. The level of PCB contamination found
at a collection point is assumed to extend to the next collection point
downstream. If no organic liquids are present, drain free-flowing
liquids and collect standard wipe samples according to subpart M of
this part. Collect condensate within 72 hours of the final transmission
of natural gas through the part of the system to be abandoned and wipe
samples after the last transmission of gas through the pipe or during
removal from the location it was used to transport natural gas.
(B) PCB concentration of the organic phase of multi-phasic liquids
shall be determined in accordance with Sec. 761.1(b)(4).
(iv) Disposal of pipeline liquids. (A) Any person disposing of
liquids
[[Page 35447]]
containing PCBs <gr-thn-eq>50 ppm removed, spilled, or otherwise
released from a natural gas pipeline system must do so in accordance
with Sec. 761.61(a)(5)(iv) based on the PCB concentration at the time
of removal from the system. Any person disposing of material
contaminated by spills or other releases of PCBs <gr-thn-eq>50 ppm from
a natural gas pipeline system, must do so in accordance with
Sec. 761.61 or Sec. 761.79, as applicable.
(B) Any person who markets or burns for energy recovery liquid
containing PCBs at concentrations <50 ppm PCBs at the time of removal
from a natural gas pipeline system must do so in accordance with the
provisions pertaining to used oil at Sec. 761.20(e). No other use of
liquid containing PCBs at concentrations above the quantifiable level/
level of detection removed from a natural gas pipeline system is
authorized.
(6) * * *
(ii) Any person disposing of PCB-Contaminated Articles must do so
by removing all free-flowing liquid from the article, disposing of the
liquid in accordance with paragraph (a)(2) or (a)(3) of this section
and disposing of the PCB-Contaminated Articles with no free-flowing
liquid by one of the following methods:
(A) In accordance with Sec. 761.79.
(B) In a facility permitted, licensed, or registered by a State to
manage municipal solid waste subject to part 258 of this chapter or
non-municipal non-hazardous waste subject to Secs. 257.5 through 257.30
of this chapter, as applicable (excluding thermal treatment units).
(C) In an industrial furnace operating in compliance with
Sec. 761.72.
(D) In a disposal facility approved under this part.
(iii) Fluorescent light ballasts containing PCBs in their potting
material must be disposed of in a TSCA-approved disposal facility, as
bulk product waste under Sec. 761.62, as household waste under
Sec. 761.63 (where applicable), or in accordance with the
decontamination provisions of Sec. 761.79.
(iv) Any person with access to, or in direct contact with, PCB-
Contaminated surfaces must be protected from dermal exposure to those
surfaces.
* * * * *
(d) [Reserved]
(e) Any person who is required to incinerate any PCBs and PCB Items
under this subpart and who can demonstrate that an alternative method
of destroying PCBs and PCB Items exists and that this alternative
method can achieve a level of performance equivalent to an incinerator
approved under Sec. 761.70 or a high efficiency boiler operating in
compliance with Sec. 761.71, must submit a written request to either
the EPA Regional Administrator or the Director, National Program
Chemicals Division, for a waiver from the incineration requirements of
Sec. 761.70 or Sec. 761.71. Requests for approval of alternate methods
that will be operated in more than one Region must be submitted to the
Director, National Program Chemicals Division except for research and
development activities involving less than 500 pounds of PCB material
(see paragraph (i)(2) of this section). Requests for approval of
alternate methods that will be operated in only one Region must be
submitted to the appropriate EPA Regional Administrator. The applicant
must show that his or her method of destroying PCBs will not present an
unreasonable risk of injury to health or the environment. On the basis
of such information and any available information, the EPA Regional
Administrator or the Director, National Program Chemicals Division may,
in his or her discretion, approve the use of the alternate method if he
or she finds that the alternate disposal method provides PCB
destruction equivalent to disposal in a Sec. 761.70 incinerator or a
Sec. 761.71 high efficiency boiler and will not present an unreasonable
risk of injury to health or the environment. Any approval must be
stated in writing and may include such conditions and provisions as the
EPA Regional Administrator or Director, National Program Chemicals
Division deems appropriate. The person to whom such waiver is issued
must comply with all limitations contained in such determination. No
person may use the alternate method of destroying PCBs or PCB Items
prior to obtaining permission from the appropriate EPA official.
(f)(1) * * *
(2) [Reserved]
(g) * * *
(1) * * *
(iii) Unless otherwise specified in this part, any person
conducting the chemical analysis of PCBs shall do so using gas
chromatography. Any gas chromatographic method that is appropriate for
the material being analyzed may be used, including EPA Method 608,
``Organochlorine Pesticides and PCBs'' at 40 CFR part 136, Appendix
A;'' EPA Method 8082, ``Polychlorinated Biphenyls (PCBs) by Capillary
Column Gas Chromatography'' of SW-846, ``OSW Test Methods for
Evaluating Solid Waste,'' which is available from NTIS; and ASTM
Standard D-4059, ``Standard Test Method for Analysis of Polychlorinated
Biphenyls in Insulating Liquids by Gas Chromatography,'' which is
available from ASTM.
(2) * * *
(iii) Unless otherwise specified in this part, any person
conducting the chemical analysis of PCBs shall do so using gas
chromatography. Any gas chromatographic method that is appropriate for
the material being analyzed may be used, including those indicated in
paragraph (g)(1)(iii) of this section.
* * * * *
(i) * * *
(2) Except for activity authorized under paragraph (j) of this
section, research and development (R&D) for PCB disposal using a total
of <500 pounds of PCB material (regardless of PCB concentration) will
be reviewed and approved by the EPA Regional Administrator for the
Region where the R&D will be conducted, and R&D for PCB disposal using
500 pounds or more of PCB material (regardless of PCB concentration)
will be reviewed and approved by the Director, National Program
Chemicals Division.
* * * * *
(j) Self-implementing requirements for research and development
(R&D) for PCB disposal.
(1) Any person may conduct R&D for PCB disposal without prior
written approval from EPA if they meet the following conditions:
(i) File a notification and obtain an EPA identification number
pursuant to subpart K of this part.
(ii) Notify in writing the EPA Regional Administrator, the State
environmental protection agency, and local environmental protection
agency, having jurisdiction where the R&D for PCB disposal activity
will occur at least 30 days prior to the commencement of any R&D for
PCB disposal activity conducted under this section. Each written
notification shall include the EPA identification number of the site
where the R&D for PCB disposal activities will be conducted, the
quantity of PCBs to be treated, the type of R&D technology to be used,
the general physical and chemical properties of material being treated,
and an estimate of the duration of the PCB activity. The EPA Regional
Administrator, the State environmental protection agency, and the local
environmental protection agency may waive notification in writing prior
to commencement of the research.
(iii) The amount of material containing PCBs treated annually by
the facility during R&D for PCB disposal activities does not exceed 500
gallons or
[[Page 35448]]
70 cubic feet of liquid or non-liquid PCBs and does not exceed a
maximum concentration of 10,000 ppm PCBs.
(iv) No more than 1 kilogram total of pure PCBs per year is
disposed of in all R&D for PCB disposal activities at a facility.
(v) Each R&D for PCB disposal activity under this section lasts no
more than 1 calendar year.
(vi) Store all PCB wastes (treated and untreated PCB materials,
testing samples, spent laboratory samples, residuals, untreated
samples, contaminated media or instrumentation, clothing, etc.) in
compliance with Sec. 761.65(b) and dispose of them according to the
undiluted PCB concentration prior to treatment. However, PCB materials
not treated in the R&D for PCB disposal activity may be returned either
to the physical location where the samples were collected or a location
where other regulated PCBs from the physical location where the samples
were collected are being stored for disposal.
(vii) Use manifests pursuant to subpart K of this part for all R&D
PCB wastes being transported from the R&D facility to an approved PCB
storage or disposal facility. However, Secs. 761.207 through 761.218 do
not apply if the residuals or treated samples are returned either to
the physical location where the samples were collected or a location
where other regulated PCBs from the physical location where the samples
were collected are being stored for disposal.
(viii) Package and ship all PCB wastes pursuant to DOT requirements
under 49 CFR parts 171 through 180.
(ix) Comply with the recordkeeping requirements of Sec. 761.180.
(2) Do not exceed material limitations set out in paragraphs
(j)(1)(iii) and (iv) of this section and the time limitation set out in
paragraph (j)(1)(v) of this section without prior written approval from
EPA. Requests for approval to exceed the material limitations for PCBs
in R&D for PCB disposal activities as specified in this section must be
submitted in writing to the EPA Regional Administrator for the Region
in which the facility conducting R&D for PCB disposal activities is
located. Each request shall specify the quantity or concentration
requested or additional time needed for disposal and include a
justification for each increase. For extensions to the duration of the
R&D for PCB disposal activity, the request shall also include a report
on the accomplishments and progress of the previously authorized R&D
for PCB disposal activity for which the extension is sought. The EPA
Regional Administrator may grant a waiver in writing for an increase in
the volume of PCB material, the maximum concentration of PCBs, the
total amount of pure PCBs, or the duration of the R&D activity.
Approvals will state all requirements applicable to the R&D for PCB
disposal activity.
(3) The EPA Regional Administrator for the Region in which an R&D
for PCB disposal activity is conducted may determine, at any time, that
an R&D PCB disposal approval is required under paragraphs (e) and
(i)(2) of this section or Sec. 761.70(d) to ensure that any R&D for PCB
disposal activity does not present an unreasonable risk of injury to
health or the environment.
m. By adding Secs. 761.61, 761.62, 761.63, and 761.64 to subpart D
to read as follows:
Sec. 761.61 PCB remediation waste.
This section provides cleanup and disposal options for PCB
remediation waste. Any person cleaning up and disposing of PCBs managed
under this section shall do so based on the concentration at which the
PCBs are found. This section does not prohibit any person from
implementing temporary emergency measures to prevent, treat, or contain
further releases or mitigate migration to the environment of PCBs or
PCB remediation waste.
(a) Self-implementing on-site cleanup and disposal of PCB
remediation waste. EPA designed the self-implementing procedure for a
general, moderately-sized site where there should be low residual
environmental impact from remedial activities. The procedure may be
less practical for larger or environmentally diverse sites. For these
other sites, the self-implementing procedure still applies, but an EPA
Regional Administrator may authorize more practical procedures through
paragraph (c) of this section. Any person may conduct self-implementing
cleanup and disposal of PCB remediation waste in accordance with the
following requirements without prior written approval from EPA.
(1) Applicability. (i) The self-implementing procedures may not be
used to clean up:
(A) Surface or ground waters.
(B) Sediments in marine and freshwater ecosystems.
(C) Sewers or sewage treatment systems.
(D) Any private or public drinking water sources or distribution
systems.
(E) Grazing lands.
(F) Vegetable gardens.
(ii) The self-implementing cleanup provisions shall not be binding
upon cleanups conducted under other authorities, including but not
limited to, actions conducted under section 104 or section 106 of
CERCLA, or section 3004(u) and (v) or section 3008(h) of RCRA.
(2) Site characterization. Any person conducting self-implementing
cleanup of PCB remediation waste must characterize the site adequately
to be able to provide the information required by paragraph (a)(3) of
this section. Subpart N of this part provides a method for collecting
new site characterization data or for assessing the sufficiency of
existing site characterization data.
(3) Notification and certification. (i) At least 30 days prior to
the date that the cleanup of a site begins, the person in charge of the
cleanup or the owner of the property where the PCB remediation waste is
located shall notify, in writing, the EPA Regional Administrator, the
Director of the State or Tribal environmental protection agency, and
the Director of the county or local environmental protection agency
where the cleanup will be conducted. The notice shall include:
(A) The nature of the contamination, including kinds of materials
contaminated.
(B) A summary of the procedures used to sample contaminated and
adjacent areas and a table or cleanup site map showing PCB
concentrations measured in all pre-cleanup characterization samples.
The summary must include sample collection and analysis dates. The EPA
Regional Administrator may require more detailed information including,
but not limited to, additional characterization sampling or all sample
identification numbers from all previous characterization activities at
the cleanup site.
(C) The location and extent of the identified contaminated area,
including topographic maps with sample collection sites cross
referenced to the sample identification numbers in the data summary
from paragraph (a)(3)(i)(B) of this section.
(D) A cleanup plan for the site, including schedule, disposal
technology, and approach. This plan should contain options and
contingencies to be used if unanticipated higher concentrations or
wider distributions of PCB remediation waste are found or other
obstacles force changes in the cleanup approach.
(E) A written certification, signed by the owner of the property
where the cleanup site is located and the party conducting the cleanup,
that all sampling plans, sample collection procedures, sample
preparation
[[Page 35449]]
procedures, extraction procedures, and instrumental/chemical analysis
procedures used to assess or characterize the PCB contamination at the
cleanup site, are on file at the location designated in the
certificate, and are available for EPA inspection. Persons using
alternate methods for chemical extraction and chemical analysis for
site characterization must include in the certificate a statement that
such a method will be used and that a comparison study which meets or
exceeds the requirements of subpart Q of this part, and for which
records are on file, has been completed prior to verification sampling.
(ii) Within 30 calendar days of receiving the notification, the EPA
Regional Administrator will respond in writing approving of the self-
implementing cleanup, disapproving of the self-implementing cleanup, or
requiring additional information. If the EPA Regional Administrator
does not respond within 30 calendar days of receiving the notice, the
person submitting the notification may assume that it is complete and
proceed with the cleanup according to the information the person
provided to the EPA Regional Administrator. Once cleanup is underway,
the person conducting the cleanup must provide any proposed changes
from the notification to the EPA Regional Administrator in writing no
less than 14 calendar days prior to the proposed implementation of the
change. The EPA Regional Administrator will determine in his or her
discretion whether to accept the change, and will respond to the change
notification verbally within 7 calendar days and in writing within 14
calendar days of receiving it. If the EPA Regional Administrator does
not respond verbally within 7 calendar days and in writing within 14
calendar days of receiving the change notice, the person who submitted
it may deem it complete and acceptable and proceed with the cleanup
according to the information in the change notice provided to the EPA
Regional Administrator.
(iii) Any person conducting a cleanup activity may obtain a waiver
of the 30-day notification requirement, if they receive a separate
waiver, in writing, from each of the agencies they are required to
notify under this section. The person must retain the original written
waiver as required in paragraph (a)(9) of this section.
(4) Cleanup levels. For purposes of cleaning, decontaminating, or
removing PCB remediation waste under this section, there are four
general waste categories: bulk PCB remediation waste, non-porous
surfaces, porous surfaces, and liquids. Cleanup levels are based on the
kind of material and the potential exposure to PCBs left after cleanup
is completed.
(i) Bulk PCB remediation waste. Bulk PCB remediation waste
includes, but is not limited to, the following non-liquid PCB
remediation waste: soil, sediments, dredged materials, muds, PCB sewage
sludge, and industrial sludge.
(A) High occupancy areas. The cleanup level for bulk PCB
remediation waste in high occupancy areas is <ls-thn-eq>1 ppm without
further conditions. High occupancy areas where bulk PCB remediation
waste remains at concentrations >1 ppm and <ls-thn-eq>10 ppm shall be
covered with a cap meeting the requirements of paragraphs (a)(7) and
(a)(8) of this section.
(B) Low occupancy areas. (1) The cleanup level for bulk PCB
remediation waste in low occupancy areas is <ls-thn-eq>25 ppm unless
otherwise specified in this paragraph.
(2) Bulk PCB remediation wastes may remain at a cleanup site at
concentrations >25 ppm and <ls-thn-eq>50 ppm if the site is secured by
a fence and marked with a sign including the M<INF>L</INF> mark.
(3) Bulk PCB remediation wastes may remain at a cleanup site at
concentrations >25 ppm and <ls-thn-eq>100 ppm if the site is covered
with a cap meeting the requirements of paragraphs (a)(7) and (a)(8) of
this section.
(ii) Non-porous surfaces. In high occupancy areas, the surface PCB
cleanup standard is <ls-thn-eq> 10 <greek-m>g/100 cm<SUP>2</SUP> of
surface area. In low occupancy areas, the surface cleanup standard is
<100 <greek-m>g/100 cm<SUP>2</SUP> of surface area. Select sampling
locations in accordance with subpart P of this part or a sampling plan
approved under paragraph (c) of this section.
(iii) Porous surfaces. In both high and low occupancy areas, any
person disposing of porous surfaces must do so based on the levels in
paragraph (a)(4)(i) of this section. Porous surfaces may be cleaned up
for use in accordance with Sec. 761.79(b)(4) or Sec. 761.30(p).
(iv) Liquids. In both high and low occupancy areas, cleanup levels
are the concentrations specified in Sec. 761.79(b)(1) and (b)(2).
(v) Change in the land use for a cleanup site. Where there is an
actual or proposed change in use of an area cleaned up to the levels of
a low occupancy area, and the exposure of people or animal life in or
at that area could reasonably be expected to increase, resulting in a
change in status from a low occupancy area to a high occupancy area,
the owner of the area shall clean up the area in accordance with the
high occupancy area cleanup levels in paragraphs (a)(4)(i) through
(a)(4)(iv) of this section.
(vi) The EPA Regional Administrator, as part of his or her response
to a notification submitted in accordance with Sec. 761.61(a)(3) of
this part, may require cleanup of the site, or portions of it, to more
stringent cleanup levels than are otherwise required in this section,
based on the proximity to areas such as residential dwellings,
hospitals, schools, nursing homes, playgrounds, parks, day care
centers, endangered species habitats, estuaries, wetlands, national
parks, national wildlife refuges, commercial fisheries, and sport
fisheries.
(5) Site cleanup. In addition to the options set out in this
paragraph, PCB disposal technologies approved under Secs. 761.60 and
761.70 are acceptable for on-site self-implementing PCB remediation
waste disposal within the confines of the operating conditions of the
respective approvals.
(i) Bulk PCB remediation waste. Any person cleaning up bulk PCB
remediation waste shall do so to the levels in paragraph (a)(4)(i) of
this section.
(A) Any person cleaning up bulk PCB remediation waste on-site or
using a soil washing process may do so without EPA approval, subject to
all of the following:
(1) A non-chlorinated solvent is used.
(2) The process occurs at ambient temperature.
(3) The process is not exothermic.
(4) The process uses no external heat.
(5) The process has secondary containment to prevent any solvent
from being released to the underlying or surrounding soils or surface
waters.
(6) Solvent disposal, recovery, and/or reuse is in accordance with
relevant provisions of approvals issued according to paragraphs (b)(1)
or (c) of this section or applicable paragraphs of Sec. 761.79.
(B) Bulk PCB remediation waste may be sent off-site for
decontamination or disposal in accordance with this paragraph, provided
the waste is either dewatered on-site or transported off-site in
containers meeting the requirements of the DOT Hazardous Materials
Regulations (HMR) at 49 CFR parts 171 through 180.
(1) Removed water shall be disposed of according to paragraph
(b)(1) of this section.
(2) Any person disposing off-site of dewatered bulk PCB remediation
waste shall do so as follows:
(i) Unless characterized for disposal according to subpart O, the
bulk PCB remediation waste shall be assumed to contain <gr-thn-eq>50
ppm PCBs.
[[Page 35450]]
(ii) Bulk PCB remediation wastes with a PCB concentration of <50
ppm shall be disposed of in accordance with paragraph (a)(5)(v)(A) of
this section.
(iii) Bulk PCB remediation wastes with a PCB concentration
<gr-thn-eq>50 ppm shall be disposed of in a hazardous waste landfill
permitted by EPA under section 3004 of RCRA, or by a State authorized
under section 3006 of RCRA, or a PCB disposal facility approved under
this part.
(iv) The generator must provide written notice, including the
quantity to be shipped and highest concentration of PCBs (using
extraction EPA Method 3500B/3540C or Method 3500B/3550B followed by
chemical analysis using EPA Method 8082 in SW-846 or methods validated
under subpart Q of this part) at least 15 days before the first
shipment of bulk PCB remediation waste from each cleanup site by the
generator, to each off-site facility where the waste is destined for an
area not subject to a TSCA PCB Disposal Approval.
(3) Any person may decontaminate bulk PCB remediation waste in
accordance with Sec. 761.79 and return the waste to the cleanup site
for disposal as long as the cleanup standards of paragraph (a)(4) of
this section are met.
(ii) Non-porous surfaces. PCB remediation waste non-porous surfaces
shall be cleaned on-site or off-site for disposal on-site, disposal
off-site, or use, as follows:
(A) For on-site disposal, non-porous surfaces shall be cleaned on-
site or off-site to the levels in paragraph (a)(4)(ii) of this section
using:
(1) Procedures approved under Sec. 761.79.
(2) Technologies approved under Sec. 761.60(e).
(3) Procedures or technologies approved under paragraph (c) of this
section.
(B) For off-site disposal, non-porous surfaces:
(1) Having surface concentrations <100 <greek-m>g/100 cm<SUP>2</SUP>
shall be disposed of in accordance with paragraph (a)(5)(i)(B)(3)(ii)
of this section. Metal surfaces may be thermally decontaminated in
accordance with Sec. 761.79(c)(6)(i).
(2) Having surface concentrations <gr-thn-eq>100 <greek-m>g/100
cm<SUP>2</SUP> shall be disposed of in accordance with paragraph
(a)(5)(i)(B)(3)(iii) of this section. Metal surfaces may be thermally
decontaminated in accordance with Sec. 761.79(c)(6)(ii).
(C) For use, non-porous surfaces shall be decontaminated on-site or
off-site to the standards specified in Sec. 761.79(b)(3) or in
accordance with Sec. 761.79(c).
(iii) Porous surfaces. Porous surfaces shall be disposed on-site or
off-site as bulk PCB remediation waste according to paragraph (a)(5)(i)
of this section or decontaminated for use according to
Sec. 761.79(b)(4), as applicable.
(iv) Liquids. Any person disposing of liquid PCB remediation waste
shall either:
(A) Decontaminate the waste to the levels specified in
Sec. 761.79(b)(1) or (b)(2).
(B) Dispose of the waste in accordance with paragraph (b) of this
section or an approval issued under paragraph (c) of this section.
(v) Cleanup wastes. Any person generating the following wastes
during and from the cleanup of PCB remediation waste shall dispose of
or reuse them using one of the following methods:
(A) Non-liquid cleaning materials and personal protective equipment
waste at any concentration, including non-porous surfaces and other
non-liquid materials such as rags, gloves, booties, other disposable
personal protective equipment, and similar materials resulting from
cleanup activities shall be disposed of in a facility permitted,
licensed, or registered by a State to manage municipal solid waste
subject to part 258 of this chapter or non-municipal non-hazardous
waste subject to Secs. 257.5 through 257.30 of this chapter, as
applicable, a RCRA Subtitle C landfill permitted by a State to accept
PCB waste, or a PCB disposal facility approved under this part.
Requirements in subpart K of this part do not apply to this waste.
Decontaminate this same waste in accordance with Sec. 761.79(b) or (c).
(B) Cleaning solvents, abrasives, and equipment may be reused after
decontamination in accordance with Sec. 761.79.
(6) Cleanup verification--(i) Sampling and analysis. Any person
collecting and analyzing samples to verify the cleanup and on-site
disposal of bulk PCB remediation wastes and porous surfaces must do so
in accordance with subpart O of this part. Any person collecting and
analyzing samples from non-porous surfaces must do so in accordance
with subpart P of this part. Any person collecting and analyzing
samples from liquids must do so in accordance with Sec. 761.269. Any
person conducting interim sampling during PCB remediation waste cleanup
to determine when to sample to verify that cleanup is complete, may use
PCB field screening tests.
(ii) Verification. (A) Where sample analysis results in a
measurement of PCBs less than or equal to the levels specified in
paragraph (a)(4) of this section, self-implementing cleanup is
complete.
(B) Where sample analysis results in a measurement of PCBs greater
than the levels specified in paragraph (a)(4) of this section, self-
implementing cleanup of the sampled PCB remediation waste is not
complete. The owner or operator of the site must either dispose of the
sampled PCB remediation waste, or reclean the waste represented by the
sample and reinitiate sampling and analysis in accordance with
paragraph (a)(6)(i) of this section.
(7) Cap requirements. A cap means, when referring to on-site
cleanup and disposal of PCB remediation waste, a uniform placement of
concrete, asphalt, or similar material of minimum thickness spread over
the area where remediation waste was removed or left in place in order
to prevent or minimize human exposure, infiltration of water, and
erosion. Any person designing and constructing a cap must do so in
accordance with Sec. 264.310(a) of this chapter, and ensure that it
complies with the permeability, sieve, liquid limit, and plasticity
index parameters in Sec. 761.75(b)(1)(ii) through (b)(1)(v). A cap of
compacted soil shall have a minimum thickness of 25 cm (10 inches). A
concrete or asphalt cap shall have a minimum thickness of 15 cm (6
inches). A cap must be of sufficient strength to maintain its
effectiveness and integrity during the use of the cap surface which is
exposed to the environment. A cap shall not be contaminated at a level
<gr-thn-eq>1 ppm PCB per Aroclor<SUP>TM</SUP> (or equivalent) or per
congener. Repairs shall begin within 72 hours of discovery for any
breaches which would impair the integrity of the cap.
(8) Deed restrictions for caps, fences and low occupancy areas.
When a cleanup activity conducted under this section includes the use
of a fence or a cap, the owner of the site must maintain the fence or
cap, in perpetuity. In addition, whenever a cap, or the procedures and
requirements for a low occupancy area, is used, the owner of the site
must meet the following conditions:
(i) Within 60 days of completion of a cleanup activity under this
section, the owner of the property shall:
(A) Record, in accordance with State law, a notation on the deed to
the property, or on some other instrument which is normally examined
during a title search, that will in perpetuity notify any potential
purchaser of the property:
(1) That the land has been used for PCB remediation waste disposal
and is
[[Page 35451]]
restricted to use as a low occupancy area as defined in Sec. 761.3.
(2) Of the existence of the fence or cap and the requirement to
maintain the fence or cap.
(3) The applicable cleanup levels left at the site, inside the
fence, and/or under the cap.
(B) Submit a certification, signed by the owner, that he/she has
recorded the notation specified in paragraph (a)(8)(i)(A) of this
section to the EPA Regional Administrator.
(ii) The owner of a site being cleaned up under this section may
remove a fence or cap after conducting additional cleanup activities
and achieving cleanup levels, specified in paragraph (a)(4) of this
section, which do not require a cap or fence. The owner may remove the
notice on the deed no earlier than 30 days after achieving the cleanup
levels specified in this section which do not require a fence or cap.
(9) Recordkeeping. For paragraphs (a)(3), (a)(4), and (a)(5) of
this section, recordkeeping is required in accordance with
Sec. 761.125(c)(5).
(b) Performance-based disposal. (1) Any person disposing of liquid
PCB remediation waste shall do so according to Sec. 761.60(a) or (e),
or decontaminate it in accordance with Sec. 761.79.
(2) Any person disposing of non-liquid PCB remediation waste shall
do so by one of the following methods:
(i) Dispose of it in a high temperature incinerator approved under
Sec. 761.70(b), an alternate disposal method approved under
Sec. 761.60(e), a chemical waste landfill approved under Sec. 761.75,
or in a facility with a coordinated approval issued under Sec. 761.77.
(ii) Decontaminate it in accordance with Sec. 761.79.
(3) Any person may manage or dispose of material containing <50 ppm
PCBs that has been dredged or excavated from waters of the United
States:
(i) In accordance with a permit that has been issued under section
404 of the Clean Water Act, or the equivalent of such a permit as
provided for in regulations of the U.S. Army Corps of Engineers at 33
CFR part 320.
(ii) In accordance with a permit issued by the U.S. Army Corps of
Engineers under section 103 of the Marine Protection, Research, and
Sanctuaries Act, or the equivalent of such a permit as provided for in
regulations of the U.S. Army Corps of Engineers at 33 CFR part 320.
(c) Risk-based disposal approval. (1) Any person wishing to sample,
cleanup, or dispose of PCB remediation waste in a manner other than
prescribed in paragraphs (a) or (b) of this section, or store PCB
remediation waste in a manner other than prescribed in Sec. 761.65,
must apply in writing to the EPA Regional Administrator in the Region
where the cleanup site is located. Each application must contain
information described in the notification required by
Sec. 761.61(a)(3). EPA may request other information that it believes
necessary to evaluate the application. No person may conduct cleanup
activities under this paragraph prior to obtaining written approval by
EPA.
(2) EPA will issue a written decision on each application for a
risk-based method for PCB remediation wastes. EPA will approve such an
application if it finds that the method will not pose an unreasonable
risk of injury to health or the environment.
Sec. 761.62 Disposal of PCB bulk product waste.
PCB bulk product waste shall be disposed of in accordance with
paragraph (a), (b), or (c) of this section. Under some of these
provisions, it may not be necessary to determine the PCB concentration
or leaching characteristics of the PCB bulk product waste. When it is
necessary to analyze the waste to make either of these determinations,
use the applicable procedures in subpart R of this part to sample the
waste for analysis, unless EPA approves another sampling plan under
paragraph (c) of this section.
(a) Performance-based disposal. Any person disposing of PCB bulk
product waste may do so as follows:
(1) In an incinerator approved under Sec. 761.70.
(2) In a chemical waste landfill approved under Sec. 761.75.
(3) In a hazardous waste landfill permitted by EPA under section
3004 of RCRA, or by a State authorized under section 3006 of RCRA.
(4) Under an alternate disposal approval under Sec. 761.60(e).
(5) In accordance with the decontamination provisions of
Sec. 761.79.
(6) For metal surfaces in contact with PCBs, in accordance with the
thermal decontamination provisions of Sec. 761.79(c)(6).
(7) In accordance with a TSCA PCB Coordinated Approval issued under
Sec. 761.77.
(b) Disposal in solid waste landfills. (1) Any person may dispose
of the following PCB bulk product waste in a facility permitted,
licensed, or registered by a State as a municipal or non-municipal non-
hazardous waste landfill:
(i) Plastics (such as plastic insulation from wire or cable; radio,
television and computer casings; vehicle parts; or furniture
laminates); preformed or molded rubber parts and components; applied
dried paints, varnishes, waxes or other similar coatings or sealants;
caulking; Galbestos; non-liquid building demolition debris; or non-
liquid PCB bulk product waste from the shredding of automobiles or
household appliances from which PCB small capacitors have been removed
(shredder fluff).
(ii) Other PCB bulk product waste, sampled in accordance with the
protocols set out in subpart O of this part, that leaches PCBs at <10
<greek-m>g/L of water measured using a procedure used to simulate
leachate generation.
(2) Any person may dispose of PCB bulk product waste other than
those materials meeting the conditions of paragraph (b)(1) of this
section, (e.g., paper or felt gaskets contaminated by liquid PCBs in a
facility that is permitted, licensed, or registered by a State to
manage municipal solid waste subject to part 258 of this chapter or
non-municipal non-hazardous waste subject to Secs. 257.5 through 257.30
of this chapter, as applicable, if:
(i) The PCB bulk product waste is segregated from organic liquids
disposed of in the landfill unit.
(ii) Leachate is collected from the landfill unit and monitored for
PCBs.
(3) Any release of PCBs (including but not limited to leachate)
from the landfill unit shall be cleaned up in accordance with
Sec. 761.61.
(4)(i) Any person disposing off-site of PCB bulk product waste
regulated under paragraph (b)(1) of this section at a waste management
facility not having a commercial PCB storage or disposal approval must
provide written notice to the facility a minimum of 15 days in advance
of the first shipment from the same disposal waste stream. The notice
shall state that the PCB bulk product waste may include components
containing PCBs at <ls-thn-eq>50 ppm based on analysis of the waste in
the shipment or application of a general knowledge of the waste stream
(or similar material) which is known to contain PCBs at those levels,
and that the PCB bulk product waste is known or presumed to leach <10
<greek-m>g/L PCBs.
(ii) Any person disposing off-site of PCB bulk product waste
regulated under paragraph (b)(2) of this section at a waste management
facility not having a commercial PCB storage or disposal approval must
provide written notice to the facility a minimum of 15 days in advance
of the first shipment from the same disposal waste stream and with each
shipment thereafter. The notice shall state that the PCB bulk product
waste may include components containing PCBs at <gr-thn-eq>50 ppm based
on
[[Page 35452]]
analysis of the waste in the shipment or application of a general
knowledge of the waste stream (or similar material) which is known to
contain PCBs at those levels, and that the PCB bulk product waste is
known or presumed to leach <gr-thn-eq>10 <greek-m>g/L PCBs.
(5) Any person disposing of PCB bulk product waste must maintain a
written record of all sampling and analysis of PCBs or notifications
made under this paragraph for 3 years from the date of the waste's
generation. The records must be made available to EPA upon request.
(6) Requirements in subparts C and K of this part do not apply to
waste disposed of under paragraph (b) of this section.
(c) Risk-based cleanup approval. (1) Any person wishing to sample
or dispose of PCB bulk product waste in a manner other than prescribed
in paragraphs (a) or (b) of this section, or store PCB bulk product
waste in a manner other than prescribed in Sec. 761.65, must apply in
writing to: the EPA Regional Administrator in the Region where the
disposal or storage site is located, for disposal or storage occurring
in a single EPA Region; or the Director of the National Program
Chemicals Division, for disposal or storage occurring in more than one
EPA Region. Each application must contain information indicating that,
based on technical, environmental, or waste-specific characteristics or
considerations, the proposed storage or disposal methods or locations
will not pose an unreasonable risk of injury to health or the
environment. EPA may request other information that it believes
necessary to evaluate the application. No person may conduct disposal
or storage activities under this paragraph prior to obtaining written
approval by EPA.
(2) EPA will issue a written decision on each application for a
risk-based storage or disposal method for PCB bulk product wastes. EPA
will approve such an application if it finds that the method will not
pose an unreasonable risk of injury to health or the environment.
(d) Disposal as daily landfill cover or roadbed. Bulk product waste
described in paragraph (b)(1) of this section may be disposed of:
(1) As daily landfill cover as long as the daily cover remains in
the landfill and is not released or dispersed by wind or other action;
or
(2) Under asphalt as part of a road bed.
Sec. 761.63 PCB household waste storage and disposal.
PCB household waste, as defined at Sec. 761.3, managed in a
facility permitted, licensed, or registered by a State to manage
municipal or industrial solid waste, or in a facility with an approval
to dispose of PCB bulk product waste under Sec. 761.62(c), is not
subject to any other requirements of part 761 of this chapter. PCB
household waste stored in a unit regulated for storage of PCB waste
must not be commingled with PCB waste.
Sec. 761.64 Disposal of wastes generated as a result of research and
development activities authorized under Sec. 761.30(j) and chemical
analysis of PCBs.
This section provides disposal requirements for wastes generated
during and as a result of research and development authorized under
Sec. 761.30(j). This section also provides disposal requirements for
wastes generated during the chemical analysis of samples containing
PCBs under part 761, including Secs. 761.30, 761.60, 761.61, 761.62,
and 761.79. For determining the presence of PCBs in samples, chemical
analysis includes: sample preparation, sample extraction, extract
cleanup, extract concentration, addition of PCB standards, and
instrumental analysis.
(a) Portions of samples of a size designated in a chemical
extraction and analysis method for PCBs and extracted for purposes of
determining the presence of PCBs or concentration of PCBs are
unregulated for PCB disposal under this part.
(b) All other wastes generated during these activities are
regulated for disposal based on their concentration at the time of
disposal as follows:
(1) Liquid wastes, including rinse solvents, must be disposed of
according to Sec. 761.61(a)(5)(iv).
(2) Non-liquid wastes must be disposed of in the same manner as
non-liquid cleaning materials and personal protective equipment waste
according to Sec. 761.61(a)(5)(v)(A).
n. In Sec. 761.65, by revising paragraphs (a), (b) introductory
text, (b)(1)(ii), (b)(1)(iv), and by adding paragraph (b)(2); by
revising paragraph (c)(1)(iv); by removing the terms ``facilities'' and
``facility'' and adding, in their place, the terms ``units'' and
``unit'', respectively in paragraph (c)(4), by revising paragraphs
(c)(5), (c)(6), (c)(7) introductory text, and (c)(8); by redesignating
paragraph (c)(9) as (c)(10) and adding a new paragraph (c)(9); in
paragraph (d)(2)(iii) by removing the term ``facility'' and adding, in
its place, the term ``unit''; by redesignating paragraph (g)(7) as
(g)(8) and by adding new paragraphs (g)(7) and (g)(9); by redesignating
paragraph (j) as paragraph (k) and adding a new paragraph (j), to read
as follows:
Sec. 761.65 Storage for disposal.
* * * * *
(a)(1) Storage limitations. Any PCB waste shall be disposed of as
required by subpart D of this part within 1-year from the date it was
determined to be PCB waste and the decision was made to dispose of it.
This date is the date of removal from service for disposal and the
point at which the 1-year time frame for disposal begins. PCB/
radioactive waste removed from service for disposal is exempt from the
1-year time limit provided that the provisions at paragraphs (a)(2)(ii)
and (a)(2)(iii) of this section are followed and the waste is managed
in accordance with all other applicable Federal, State, and local laws
and regulations for the management of radioactive material.
(2) One-year extension. Any person storing PCB waste that is
subject to the 1-year time limit for storage and disposal in paragraph
(a)(1) of this section may provide written notification to the EPA
Regional Administrator for the Region in which the PCB waste is stored
that their continuing attempts to dispose of or secure disposal for
their waste within the 1-year time limit have been unsuccessful. Upon
receipt of the notice by the EPA Regional Administrator, the time for
disposal is automatically extended for 1 additional year (2 years
total) if the following conditions are met:
(i) The notification is received by the EPA Regional Administrator
at least 30 days before the initial 1-year time limit expires and the
notice identifies the storer, the types, volumes, and locations of the
waste and the reasons for failure to meet the initial 1-year time
limit.
(ii) A written record documenting all continuing attempts to secure
disposal is maintained until the waste is disposed of.
(iii) The written record required by paragraph (a)(2)(ii) of this
section is available for inspection or submission if requested by EPA.
(iv) Continuing attempts to secure disposal were initiated within
270 days after the time the waste was first subject to the 1-year time
limit requirement, as specified in paragraph (a)(1) of this section.
Failure to initiate and continue attempts to secure disposal throughout
the total time the waste is in storage shall automatically disqualify
the notifier from receiving an automatic extension under this section.
[[Page 35453]]
(3) Additional extensions. Upon written request, the EPA Regional
Administrator for the Region in which the wastes are stored or the
Director, National Program Chemicals Division, may grant additional
extensions beyond the 1-year extension authorized in paragraph (a)(2)
of this section. At the time of the request, the requestor must supply
specific justification for the additional extension and indicate what
measures the requestor is taking to secure disposal of the waste or
indicate why disposal could not be conducted during the period of the
prior extension. The EPA Regional Administrator or the Director,
National Program Chemicals Division may require, as a condition to
granting any extension under this section, specific actions including,
but not limited to, marking, inspection, recordkeeping, or financial
assurance to ensure that the waste does not pose an unreasonable risk
of injury to health or the environment.
(4) Storage at an approved facility. Increased time for storage may
be granted as a condition of any TSCA PCB storage or disposal approval,
by the EPA Regional Administrator for the Region in which the PCBs or
PCB Items are to be stored or disposed of, or by the Director, National
Program Chemicals Division, if EPA determines that there is a
demonstrated need or justification for additional time, that the owner
or operator of the facility is pursuing relevant treatment or disposal
options, and that no unreasonable risk of injury to health or the
environment will result from the increased storage time. In making this
determination, EPA will consider such factors as absence of any
approved treatment technology and insufficient time to complete the
treatment or destruction process. EPA may require as a condition of the
approval that the owner or operator submit periodic progress reports.
(b) Except as provided in paragraphs (b)(2), (c)(1), (c)(7),
(c)(9), and (c)(10) of this section, after July 1, 1978, owners or
operators of any facilities used for the storage of PCBs and PCB Items
designated for disposal shall comply with the following storage unit
requirements:
(1) * * *
(ii) An adequate floor that has continuous curbing with a minimum 6
inch high curb. The floor and curbing must provide a containment volume
equal to at least two times the internal volume of the largest PCB
Article or PCB Container or 25 percent of the total internal volume of
all PCB Articles or PCB Containers stored there, whichever is greater.
PCB/radioactive wastes are not required to be stored in an area with a
minimum 6 inch high curbing. However, the floor and curbing must still
provide a containment volume equal to at least two times the internal
volume of the largest PCB Container or 25 percent of the total internal
volume of all PCB Containers stored there, whichever is greater.
* * * * *
(iv) Floors and curbing constructed of Portland cement, concrete,
or a continuous, smooth, non-porous surface as defined at Sec. 761.3,
which prevents or minimizes penetration of PCBs.
* * * * *
(2) No person may store PCBs and PCB Items designated for disposal
in a storage unit other than one approved pursuant to paragraph (d) of
this section or meeting the design requirements of paragraph (b) of
this section, unless the unit meets one of the following conditions:
(i) Is permitted by EPA under section 3004 of RCRA to manage
hazardous waste in containers, and spills of PCBs are cleaned up in
accordance with subpart G of this part.
(ii) Qualifies for interim status under section 3005 of RCRA to
manage hazardous waste in containers, meets the requirements for
containment at Sec. 264.175 of this chapter, and spills of PCBs are
cleaned up in accordance with subpart G of this part.
(iii) Is permitted by a State authorized under section 3006 of RCRA
to manage hazardous waste in containers, and spills of PCBs are cleaned
up in accordance with subpart G of this part.
(iv) Is approved or otherwise regulated pursuant to a State PCB
waste management program no less stringent in protection of health or
the environment than the applicable TSCA requirements found in this
part.
(v) Is subject to a TSCA Coordinated Approval, which includes
provisions for storage of PCBs, issued pursuant to Sec. 761.77.
(vi) Has a TSCA PCB waste management approval, which includes
provisions for storage, issued pursuant to Sec. 761.61(c) or
Sec. 761.62(c).
(c)(1) * * *
(iv) PCB containers containing liquid PCBs at concentrations of
<gr-thn-eq>50 ppm, provided a Spill Prevention, Control and
Countermeasure Plan has been prepared for the temporary storage area in
accordance with part 112 of this chapter and the liquid PCB waste is in
packaging authorized in the DOT Hazardous Materials Regulations at 49
CFR parts 171 through 180 or stationary bulk storage tanks (including
rolling stock such as, but not limited to, tanker trucks, as specified
by DOT).
* * * * *
(5) All PCB Items in storage shall be checked for leaks at least
once every 30 days. Any leaking PCB Items and their contents shall be
transferred immediately to properly marked non-leaking containers. Any
spilled or leaked materials shall be immediately cleaned up and the
materials and residues containing PCBs shall be disposed of in
accordance with Sec. 761.61. Records of inspections, maintenance,
cleanup and disposal must be maintained in accordance with
Sec. 761.180(a) and (b).
(6) Except as provided in paragraphs (c)(6)(i) and (c)(6)(ii) of
this section, any container used for the storage of liquid or non-
liquid PCB waste shall be in accordance with the requirements set forth
in the DOT Hazardous Materials Regulations (HMR) at 49 CFR parts 171
through 180. PCB waste not subject to the HMR (i.e., PCB wastes at
concentrations of <20 ppm or <1 pound of PCBs regardless of
concentration) must be packaged in accordance with Packaging Group III,
unless other hazards associated with the PCB waste cause it to require
packaging in accordance with Packaging Groups I or II. For purposes of
describing PCB waste not subject to DOT's HMR on a manifest, one may
use the term ``Non-DOT Regulated PCBs.''
(i) Containers other than those meeting HMR performance standards
may be used for storage of PCB/radioactive waste provided the following
requirements are met:
(A) Containers used for storage of liquid PCB/radioactive wastes
must be non-leaking.
(B) Containers used for storage of non-liquid PCB/ radioactive
wastes must be designed to prevent the buildup of liquids if such
containers are stored in an area meeting the containment requirements
of paragraph (b)(1)(ii) of this section, as well as all other
applicable State or Federal regulations or requirements for control of
radioactive materials.
(C) Containers used to store both liquid and non-liquid PCB/
radioactive wastes must meet all regulations and requirements
pertaining to nuclear criticality safety. Acceptable container
materials currently include polyethylene and stainless steel provided
that the container material is chemically compatible with the wastes
being stored. Other containers may be used to store both liquid and
non-liquid PCB/radioactive wastes if the users are able to demonstrate,
to the appropriate Regional Administrator and other appropriate
regulatory authorities (i.e., Nuclear Regulatory Commission, Department
of Energy or the Department
[[Page 35454]]
of Transportation), that the use of such containers is protective of
health and the environment as well as public health and safety.
(ii) The following DOT specification containers that conform to the
requirements of 49 CFR, chapter I, subchapter C in effect on September
30, 1991, may be used for storage and transportation activities that
are not subject to DOT regulation, and may be used on a transitional
basis as permitted at 49 CFR 171.14. For liquid PCBs: Specification 5
container without removable head, Specification 5B container without
removable head, Specification 6D overpack with Specification 2S or 2SL
polyethylene containers, or Specification 17E container. For non-liquid
PCBs: Specification 5 container, Specification 5B container, or
Specification 17C container.
(7) Stationary storage containers for liquid PCBs can be larger
than the containers specified in paragraph (c)(6) of this section
provided that:
* * * * *
(8) PCB Items shall be dated on the item when they are removed from
service for disposal. The storage shall be managed so that the PCB
Items can be located by this date. Storage containers provided in
paragraph (c)(7) of this section, shall have a record that includes for
each batch of PCBs the quantity of the batch and date the batch was
added to the container. The record shall also include the date,
quantity, and disposition of any batch of PCBs removed from the
container.
(9) Bulk PCB remediation waste or PCB bulk product waste may be
stored at the clean-up site or site of generation for 180 days subject
to the following conditions:
(i) The waste is placed in a pile designed and operated to control
dispersal of the waste by wind, where necessary, by means other than
wetting.
(ii) The waste must not generate leachate through decomposition or
other reactions.
(iii) The storage site must have:
(A) A liner that is designed, constructed, and installed to prevent
any migration of wastes off or through the liner into the adjacent
subsurface soil, ground water or surface water at any time during the
active life (including the closure period) of the storage site. The
liner may be constructed of materials that may allow waste to migrate
into the liner. The liner must be:
(1) Constructed of materials that have appropriate chemical
properties and sufficient strength and thickness to prevent failure due
to pressure gradients (including static head and external hydrogeologic
forces), physical contact with the waste or leachate to which they are
exposed, climatic conditions, the stress of installation, and the
stress of daily operation.
(2) Placed upon a foundation or base capable of providing support
to the liner and resistance to pressure gradients above and below the
liner to prevent failure of the liner due to settlement, compression,
or uplift.
(3) Installed to cover all surrounding earth likely to be in
contact with the waste.
(B) A cover that meets the requirements of paragraph (c)(9)(iii)(A)
of this section, is installed to cover all of the stored waste likely
to be contacted with precipitation, and is secured so as not to be
functionally disabled by winds expected under normal seasonal
meteorological conditions at the storage site.
(C) A run-on control system designed, constructed, operated, and
maintained such that:
(1) It prevents flow onto the stored waste during peak discharge
from at least a 25-year storm.
(2) It collects and controls at least the water volume resulting
from a 24-hour, 25-year storm. Collection and holding facilities (e.g.,
tanks or basins) must be emptied or otherwise managed expeditiously
after storms to maintain design capacity of the system.
(iv) The provisions of this paragraph may be modified under
Sec. 761.61(c).
* * * * *
(g) * * *
(7) The corporate guarantee as specified in Sec. 264.143(f)(10) of
this chapter.
* * * * *
(9) A modification to a facility storing PCB waste that increases
the maximum storage capacity indicated in the permit requires that a
new financial assurance mechanism be established or an existing one be
amended. When such a modification occurs, the Director of the Federal
or State issuing authority must be notified in writing no later than 30
days from the completion of the modification. The new or revised
financial assurance mechanism must be established and activated no
later than 30 days after the Director of the Federal or State issuing
authority is notified of the completion of the modification, but prior
to the use of the modified portion of the facility.
* * * * *
(j) Changes in ownership or operational control of a commercial
storage facility. The date of transfer of interim status or final
approval shall be the date the EPA Regional Administrator (or Director,
National Program Chemicals Division) provides written approval of the
transfer. EPA will provide a final written decision within 90 days of
receipt of the complete new or amended application. The Agency will
approve the transfer if the following conditions are met:
(1) The transferee has established financial assurance for closure
pursuant to paragraph (g) of this section using a mechanism effective
as of the date of final approval so that there will be no lapse in
financial assurance for the transferred facility.
(2) The transferor or transferee has resolved any deficiencies
(e.g., technical operations, closure plans, cost estimates, etc.) the
Agency has identified in the transferor's application.
* * * * *
o. By adding Secs. 761.71 and 761.72 to read as follows:
Sec. 761.71 High efficiency boilers.
(a) To burn mineral oil dielectric fluid containing a PCB
concentration of <gr-thn-eq>50 ppm, but <500 ppm:
(1) The boiler shall comply with the following criteria:
(i) The boiler is rated at a minimum of 50 million BTU hours.
(ii) If the boiler uses natural gas or oil as the primary fuel, the
carbon monoxide concentration in the stack is <ls-thn-eq>50 ppm and the
excess oxygen is at least 3 percent when PCBs are being burned.
(iii) If the boiler uses coal as the primary fuel, the carbon
monoxide concentration in the stack is <ls-thn-eq>100 ppm and the
excess oxygen is at least 3 percent when PCBs are being burned.
(iv) The mineral oil dielectric fluid does not comprise more than
10 percent (on a volume basis) of the total fuel feed rate.
(v) The mineral oil dielectric fluid is not fed into the boiler
unless the boiler is operating at its normal operating temperature
(this prohibits feeding these fluids during either start up or shut
down operations).
(vi) The owner or operator of the boiler:
(A) Continuously monitors and records the carbon monoxide
concentration and excess oxygen percentage in the stack gas while
burning mineral oil dielectric fluid; or
(B) If the boiler will burn <30,000 gallons of mineral oil
dielectric fluid per year, measures and records the carbon monoxide
concentration and excess oxygen percentage in the stack gas at regular
intervals of no longer than 60 minutes while burning mineral oil
dielectric fluid.
(vii) The primary fuel feed rates, mineral oil dielectric fluid
feed rates,
[[Page 35455]]
and total quantities of both primary fuel and mineral oil dielectric
fluid fed to the boiler are measured and recorded at regular intervals
of no longer than 15 minutes while burning mineral oil dielectric
fluid.
(viii) The carbon monoxide concentration and the excess oxygen
percentage are checked at least once every hour that mineral oil
dielectric fluid is burned. If either measurement falls below the
levels specified in this section, the flow of mineral oil dielectric
fluid to the boiler shall be stopped immediately.
(2) Thirty days before any person burns mineral oil dielectric
fluid in the boiler, the person gives written notice to the EPA
Regional Administrator for the EPA Region in which the boiler is
located and that the notice contains the following information:
(i) The name and address of the owner or operator of the boiler and
the address of the boiler.
(ii) The boiler rating in units of BTU/hour.
(iii) The carbon monoxide concentration and the excess oxygen
percentage in the stack of the boiler when it is operated in a manner
similar to the manner in which it will be operated when mineral oil
dielectric fluid is burned.
(iv) The type of equipment, apparatus, and procedures to be used to
control the feed of mineral oil dielectric fluid to the boiler and to
monitor and record the carbon monoxide concentration and excess oxygen
percentage in the stack.
(3) When burning mineral oil dielectric fluid, the boiler must
operate at a level of output no less than the output at which the
measurements required under paragraph (a)(2)(iii) of this section were
taken.
(4) Any person burning mineral oil dielectric fluid in a boiler
obtains the following information and retains the information for 5
years at the boiler location:
(i) The data required to be collected under paragraphs (a)(1)(vi)
and (vii) of this section.
(ii) The quantity of mineral oil dielectric fluid burned in the
boiler each month.
(b) To burn liquids, other than mineral oil dielectric fluid,
containing a PCB concentration of <gr-thn-eq>50 ppm, but <500 ppm:
(1) The boiler shall comply with the following criteria:
(i) The boiler is rated at a minimum of 50 million BTU/hour.
(ii) If the boiler uses natural gas or oil as the primary fuel, the
carbon monoxide concentration in the stack is <ls-thn-eq>50 ppm and the
excess oxygen is at least 3 percent when PCBs are being burned.
(iii) If the boiler uses coal as the primary fuel, the carbon
monoxide concentration in the stack is <ls-thn-eq>100 ppm and the
excess oxygen is at least 3 percent when PCBs are being burned.
(iv) The waste does not comprise more than 10 percent (on a volume
basis) of the total fuel feed rate.
(v) The waste is not fed into the boiler unless the boiler is
operating at its normal operating temperature (this prohibits feeding
these fluids during either start up or shut down operations).
(vi) The owner or operator of the boiler must:
(A) Continuously monitor and record the carbon monoxide
concentration and excess oxygen percentage in the stack gas while
burning waste fluid; or
(B) If the boiler will burn <30,000 gallons of waste fluid per
year, measure and record the carbon monoxide concentration and excess
oxygen percentage in the stack gas at regular intervals of no longer
than 60 minutes while burning waste fluid.
(vii) The primary fuel feed rate, waste fluid feed rate, and total
quantities of both primary fuel and waste fluid fed to the boiler must
be measured and recorded at regular intervals of no longer than 15
minutes while burning waste fluid.
(viii) The carbon monoxide concentration and the excess oxygen
percentage must be checked at least once every hour that the waste is
burned. If either measurement falls below the levels specified in
either (a)(1)(ii) or (a)(1)(iii) of this section, the flow of waste to
the boiler shall be stopped immediately.
(2) Prior to any person burning these liquids in the boiler,
approval must be obtained from the EPA Regional Administrator for the
EPA Region in which the boiler is located and any persons seeking such
approval must submit to the EPA Regional Administrator a request
containing at least the following information:
(i) The name and address of the owner or operator of the boiler and
the address of the boiler.
(ii) The boiler rating in units of BTU/hour.
(iii) The carbon monoxide concentration and the excess oxygen
percentage in the stack of the boiler when it is operated in a manner
similar to the manner in which it will be operated when low
concentration PCB liquid is burned.
(iv) The type of equipment, apparatus, and procedures to be used to
control the feed of mineral oil dielectric fluid to the boiler and to
monitor and record the carbon monoxide concentration and excess oxygen
percentage in the stack.
(v) The type of waste to be burned (e.g., hydraulic fluid,
contaminated fuel oil, heat transfer fluid, etc.).
(vi) The concentration of PCBs and of any other chlorinated
hydrocarbon in the waste and the results of analyses using the American
Society of Testing and Materials (ASTM) methods as follows: Carbon and
hydrogen content using ASTM D-3178-84, nitrogen content using ASTM E-
258-67 (Reapproved 1987), sulfur content using ASTM D-2784-89, ASTM D-
1266-87, or ASTM D-129-64, chlorine content using ASTM D-808-87, water
and sediment content using either ASTM D-2709-88 or ASTM D-1796-83
(Reapproved 1990), ash content using ASTM D-482-87, calorific value
using ASTM D-240-87, carbon residue using either ASTM D-2158-89 or ASTM
D-524-88, and flash point using ASTM D-93-90.
(vii) The quantity of wastes estimated to be burned in a 30-day
period.
(viii) An explanation of the procedures to be followed to ensure
that burning the waste will not adversely affect the operation of the
boiler such that combustion efficiency will decrease.
(3) On the basis of the information in paragraph (b)(2) of this
section and any other available information, the Regional Administrator
may, at his/her discretion, find that the alternate disposal method
will not present an unreasonable risk of injury to health or the
environment and approve the use of the boiler.
(4) When burning PCB wastes, the boiler must operate at a level of
output no less than the output at which the measurements required under
paragraph (b)(2)(iii) of this section were taken.
(5) Any person burning liquids in boilers approved as provided in
paragraph (b)(3) of this sec ![[logo] US EPA](http://www.epa.gov/epafiles/images/logo_epaseal.gif){kind=logo}