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Polychlorinated Biphenyls; Manufacturing (Import) Exemptions
[Federal Register: September 17, 2002 (Volume 67, Number 180)]
[Proposed Rules]
[Page 58567-58578]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17se02-17]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 761
[OPPT-2002-0013; FRL-7176-1]
RIN 2070-AB20
Polychlorinated Biphenyls; Manufacturing (Import) Exemptions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: With certain exceptions, section 6(e)(3) of the Toxic
Substances Control Act (TSCA) bans the manufacture (including import),
processing, and distribution in commerce of polychlorinated biphenyls
(PCBs). One of these exceptions is TSCA section 6(e)(3)(B), which gives
EPA authority to grant petitions to perform these activities for a
period of up to 12 months, provided EPA can make certain findings by
rule. In January and April 2001, the United States Defense Logistics
Agency (DLA), a component of the Department of Defense (DoD), submitted
two petitions to EPA to import foreign-manufactured PCBs that DoD
currently owns in Japan and Wake Island for disposal in the United
States. In this document, EPA is proposing to grant both of DLA's
petitions and is soliciting public comment on this decision; if
finalized, this decision to grant would allow DLA to engage in the
import of these PCBs for disposal.
DATES: Comments, identified by the docket ID number OPPT-2002-0013,
must be received by EPA on or before October 17, 2002.
If requested by October 11, 2002, an informal hearing will be held
in Washington, DC on a date to be announced later in the Federal
Register.
ADDRESSES: Comments and hearing requests may be submitted by mail,
electronically, or in person. Please follow the detailed instructions
for each method as provided in Unit I. of the SUPPLEMENTARY
INFORMATION. To ensure proper receipt by EPA, it is imperative that you
identify docket ID number OPPT-2002-0013 in the subject line on the
first page of your response.
FOR FURTHER INFORMATION CONTACT: For general information contact:
Barbara Cunningham, Acting Director, Environmental Assistance Division,
Office of Pollution Prevention and Toxics (7408M), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address: TSCA-
Hotline@epa.gov.
For technical information contact: Peter Gimlin, Environmental
Protection Specialist, National Program Chemicals Division (7404T),
Office of Pollution Prevention and Toxics, Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001;
telephone number: (202) 566-0515; fax number: (202) 566-0473; e-mail
address: gimlin.peter@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. To Whom Does this Action Apply?
Primarily, this action applies to the petitioner, the DLA. However,
you may be potentially affected by this action if you process,
distribute in commerce, or dispose of PCB waste generated by others,
i.e., you are an EPA-permitted PCB waste handler. Potentially affected
categories and entities include, but are not necessarily limited to:
------------------------------------------------------------------------
Examples of
Categories NAICS codes potentially
affected entities
------------------------------------------------------------------------
Public Administration 92 Petitioning Agency
(i.e., DLA)
------------------------------------------------------------------------
[[Page 58568]]
This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in the table in this unit
could also be affected. The North American Industrial Classification
System (NAICS) codes have been provided to assist you and others in
determining whether or not this action applies to certain entities. To
determine whether you or your business is affected by this action, you
should carefully examine the applicability provisions in 40 CFR part
761. If you have any questions regarding the applicability of this
action to a particular entity, consult the technical person listed
under FOR FURTHER INFORMATION CONTACT.
B. How Can I Get Copies of this Document or Other Related Information?
1. Docket. EPA has established an official public docket for this
action under docket ID number OPPT-2002-0013. The official public
docket consists of the documents specifically referenced in this
action, any public comments received, and other information related to
this action. Although a part of the official docket, the public docket
does not include Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. The official
public docket is the collection of materials that is available for
public viewing at the EPA Docket Center, Rm. B102-Reading Room, EPA
West, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket
Center is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays. The EPA Docket Center Reading Room telephone
number is (202) 566-1744 and the telephone number for the OPPT Docket,
which is located in EPA Docket Center, is (202) 566-0280.
2. Electronic access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/. A frequently updated
electronic version of 40 CFR part 761 is available at http://
www.access.gpo.gov/nara/cfr/cfrhtml_00/Title_40/40cfr761_00.html, 
a beta site currently under development. To access information about
PCBs, go directly to the PCB Home Page for the Office of Pollution
Prevention and Toxics at http://www.epa.gov/pcb.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket ID number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the system will identify whether the
document is available for viewing in EPA's electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified in Unit I.B.1. EPA intends to work
towards providing electronic access to all of the publicly available
docket materials through EPA's electronic public docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
C. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket ID number in the subject line on the first page of
your comment. Please ensure that your comments are submitted within the
specified comment period. Comments received after the close of the
comment period will be marked ``late.'' EPA is not required to consider
these late comments. If you wish to submit CBI or information that is
otherwise protected by statute, please follow the instructions in Unit
I.D. Do not use EPA Dockets or e-mail to submit CBI or information
protected by statute.
1. Electronically. If you submit an electronic comment as
prescribed in this unit, EPA recommends that you include your name,
mailing address, and an e-mail address or other contact information in
the body of your comment. Also include this contact information on the
outside of any disk or CD ROM you submit, and in any cover letter
accompanying the disk or CD ROM. This ensures that you can be
identified as the submitter of the comment and allows EPA to contact
you in case EPA can not read your comment due to technical difficulties
or needs further information on the substance of your comment. EPA's
policy is that EPA will not edit your comment, and any identifying or
contact information provided in the body of a comment will be included
as part of the comment that is placed in the official public docket,
and made available in EPA's electronic public docket. If EPA can not
read your comment due to technical difficulties and can not contact you
for clarification, EPA may not be able to consider your comment.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/
edocket, and follow the online instructions for submitting comments.
Once in the system, select ``search,'' and then key in docket ID number
OPPT-2002-0013. The system is an ``anonymous access '' system, which
means EPA will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
ii. E-mail. Comments may be sent by e-mail to oppt.ncic@epa.gov,
Attention: Docket ID Number OPPT-2002-0013. In contrast to EPA's
electronic public docket, EPA's e-mail system is not an ``anonymous
access '' system. If you
[[Page 58569]]
send an e-mail comment directly to the docket without going through
EPA's electronic public docket, EPA's e-mail system automatically
captures your e-mail address. E-mail addresses that are automatically
captured by EPA's e-mail system are included as part of the comment
that is placed in the official public docket, and made available in
EPA's electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the mailing address identified in Unit I.C.2. These
electronic submissions will be accepted in WordPerfect or ASCII file
format. Avoid the use of special characters and any form of encryption.
2. By mail. Send your comments to: Document Control Office (DCO)
(7407), Office of Pollution Prevention and Toxics (OPPT), Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001, Attention: Docket ID Number OPPT-2002-0013.
3. By hand delivery or courier. Deliver your comments to: OPPT
Document Control Office (DCO) in EPA East Building Rm. 6428, 1201
Constitution Ave., NW., Washington, DC. Attention: Docket ID Number
OPPT-2002-0013. The DCO is open from 8 a.m. to 4 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the DCO is
(202) 564-8930.
D. How Should I Submit CBI to the Agency?
Do not submit information that you consider to be CBI
electronically through EPA's electronic public docket or by e-mail. You
may claim information that you submit to EPA as CBI by marking any part
or all of that information as CBI (if you submit CBI on disk or CD ROM,
mark the outside of the disk or CD ROM as CBI and then identify
electronically within the disk or CD ROM the specific information that
is CBI). Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
In addition to one complete version of the comment that includes
any information claimed as CBI, a copy of the comment that does not
contain the information claimed as CBI must be submitted for inclusion
in the public docket and EPA's electronic public docket. If you submit
the copy that does not contain CBI on disk or CD ROM, mark the outside
of the disk or CD ROM clearly that it does not contain CBI. Information
not marked as CBI will be included in the public docket and EPA's
electronic public docket without prior notice. If you have any
questions about CBI or the procedures for claiming CBI, please consult
the person listed under FOR FURTHER INFORMATION CONTACT.
E. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide copies of any technical information and/or data you used
that support your views.
4. If you estimate potential burden or costs, explain how you
arrived at the estimate that you provide.
5. Provide specific examples to illustrate your concerns.
6. Offer alternative ways to improve the proposed rule or
collection activity.
7. Make sure to submit your comments by the deadline in this
document.
8. To ensure proper receipt by EPA, be sure to identify the docket
ID number assigned to this action in the subject line on the first page
of your response. You may also provide the name, date, and Federal
Register citation.
II. Background
A. What Action is the Agency Proposing to Take?
In this document, the Agency is proposing to grant two petitions
submitted by DLA to import PCB waste for disposal. In the absence of an
exemption, import of this waste would be banned by TSCA section
6(e)(3). One petition, dated January 19, 2001, is for an exemption to
import foreign-source PCBs that were used on DoD installations in Japan
and are currently stored on Wake Island, a United States territory in
the Pacific Ocean west of Hawaii (Ref. 9). (While Wake Island is part
of the United States, it is outside the Customs Territory of the United
States, and TSCA defines ``manufacture'' to include ``import into the
Customs Territory of the United States.'') In addition, 40 CFR
761.99(c) does not exclude this waste from EPA's regulatory
interpretation of ``import,'' because it never entered the Customs
Territory prior to January 1, 1979. For more information on these
definitional issues, see the Federal Register documents of November 1,
2000 (Ref. 7) and March 30, 2001 (Ref. 8). The other petition, dated
April 16, 2001, is to import foreign-generated PCBs owned by DoD that
are currently in use or storage in Japan (Ref. 10). (The term
``foreign-generated PCBs'' is used to identify those PCBs that DoD
acquired from foreign sources and that are subject to the TSCA ban on
import.)
B. What is the Agency's Statutory Authority for Taking this Action?
Section 6(e) of TSCA, 15 U.S.C. 2605(e), generally prohibits the
manufacture of PCBs after January 1, 1979, the processing and
distribution in commerce of PCBs after July 1, 1979, and most uses of
PCBs after October 11, 1977. Section 6(e)(3)(A) of TSCA prohibits the
manufacture, processing, and distribution in commerce of PCBs except
for the distribution in commerce of PCBs that were sold for purposes
other than resale before July 1, 1979. Section 6(e)(1) of TSCA also
authorizes EPA to regulate the disposal of PCBs consistent with the
provisions in TSCA section 6(e)(2) and (3).
Section 6(e)(3)(B) of TSCA provides that any person may petition
the Administrator for an exemption from the prohibition on the
manufacture, processing, and distribution in commerce of PCBs. The
Administrator may by rule grant an exemption if the Administrator finds
that:
(i) an unreasonable risk of injury to health or the environment
would not result, and (ii) good faith efforts have been made to
develop a chemical substance which does not present an unreasonable
risk of injury to health or the environment and which may be
substituted for such polychlorinated biphenyl. (15 U.S.C.
2605(e)(3)(B)(i)-(ii)).
The Administrator may prescribe terms and conditions for an exemption
and may grant an exemption for a period of not more than 1 year from
the date the petition is granted. In addition, TSCA section 6(e)(4)
requires that a rule under TSCA section 6(e)(3)(B) be promulgated in
accordance with TSCA sections 6(c)(2), (3), and (4), which provides for
publication of a proposed rule and an opportunity for an informal
public hearing before a final rule can be issued.
C. What is the Agency's Regulatory Authority for Taking this Action?
EPA's procedures for rulemaking under TSCA section 6 are found
under 40 CFR part 750. This part includes Subpart B--Interim Procedural
Rules for Manufacturing Exemptions (40 CFR 750.10 through 750.21) that
describe the required content for manufacturing exemption petitions and
the procedures EPA follows in rulemaking on these petitions.
III. Findings Necessary to Grant Petitions
A. Unreasonable Risk Finding.
Before granting an exemption petition, TSCA section 6(e)(3)(B)(i)
requires the Administrator to find that
[[Page 58570]]
granting an exemption would not result in an unreasonable risk of
injury to health or the environment in the United States.
To determine whether a risk is unreasonable, EPA balances the
probability that harm will occur to health or the environment against
the benefits to society from granting or denying each petition. See
generally, 15 U.S.C. 2605(c)(1). Specifically, EPA considers the
following factors:
1. Effects of PCBs on human health and the environment. In deciding
whether to grant an exemption, EPA considers the magnitude of exposure
and the effects of PCBs on humans and the environment. The following
discussion summarizes EPA's assessment of these factors. A more
complete discussion of these factors is provided in the preamble to the
proposed rule: Polychlorinated Biphenyls; Manufacturing, Processing,
and Distribution in Commerce Exemptions (Ref. 3), in the rulemaking
record for that proposed rule (OPTS Docket-66008F), 40 CFR 761.20, and
in EPA's 1996 PCB Cancer Assessment (Ref. 32).
i. Health effects. EPA has determined that PCBs cause significant
human health effects including cancer, immune system suppression, liver
damage, skin irritation, and endocrine disruption. PCBs exhibit
neurotoxicity as well as reproductive and developmental toxicity. PCBs
are readily absorbed through the skin and are absorbed at even faster
rates when inhaled. Because PCBs are stored in animal fatty tissue,
humans are also exposed to PCBs through ingestion of animal products
(Ref. 32).
ii. Environmental effects. Certain PCB congeners are among the most
stable chemicals known, and decompose very slowly once they are
released in the environment. PCBs are absorbed and stored in the fatty
tissue of higher organisms as they bioaccumulate up the food chain
through invertebrates, fish, and mammals. Significantly, bioaccumulated
PCBs appear to be even more toxic than those found in the ambient
environment, since the more toxic PCB congeners are more persistent and
thus more likely to be retained (Ref. 32). PCBs also have reproductive
and other toxic effects in aquatic organisms, birds and mammals.
iii. Risks. Toxicity and exposure are the two basic components of
risk. EPA has concluded that any exposure of humans or the environment
to PCBs may be significant, depending on such factors as the quantity
of PCBs involved in the exposure, the likelihood of exposure to humans
and the environment, and the effect of exposure. Minimizing exposure to
PCBs should minimize any eventual risk. EPA has previously determined
that some activities, including the disposal of PCBs in accordance with
40 CFR part 761, pose no unreasonable risks. Other activities, such as
long-term storage of PCB waste, are generally considered by EPA to pose
unreasonable risks.
2. Benefits and costs. The benefits to society of granting an
exemption vary, depending on the activity for which the exemption is
requested. The reasonably ascertainable costs of denying an exemption
vary, depending on the individual petition. As discussed in Unit IV.,
EPA has taken benefits and costs into consideration when evaluating
each exemption petition.
B. Good Faith Efforts Finding
Section 6(e)(3)(B)(ii) of TSCA also requires the Administrator to
find that ``good faith efforts have been made to develop a chemical
substance which does not present an unreasonable risk of injury to
health or the environment and which may be substituted for [PCBs].''
EPA considers several factors in determining whether good faith efforts
have been made. For each petition, EPA considers the kind of exemption
the petitioner is requesting and whether the petitioner expended time
and effort to develop or search for a substitute.
To satisfy this finding in the context of an exemption to import
PCBs for disposal, EPA looks at why such activity should occur in the
United States, including what steps the petitioner has taken to find an
alternative to importing the PCBs for disposal. While requiring a
petitioner to demonstrate that good faith efforts to develop a
substitute for PCBs makes sense when dealing with traditional
manufacturing and distribution exemption petitions, the issue of the
development of substitute chemicals seems to have little bearing on
whether to grant a petition for exemption that would allow the import
into the United States for disposal of waste generated by the DoD
overseas. EPA believes the more relevant ``good faith'' issue for such
an exemption request is whether the disposal of the waste should occur
outside the United States.
IV. Proposed Disposition of Pending Exemption Petitions
A. The Petitions
1. January 19, 2001, petition to import PCBs located on Wake
Island. On January 19, 2001, DLA submitted a petition for a 1-year
exemption to import certain PCBs and PCB items into the Customs
Territory of the United States for disposal. The waste in question
consists of approximately 91 metric tons [a metric ton is 1,000
kilograms, or 2,200 pounds]
of material, of which 31 metric tons DLA
estimates to be liquids. Non-liquid material consists of electrical
transformers, switches, circuit breakers, and debris (rags, small
parts, and packaging materials). The laboratory analyses conducted by
DLA indicate PCB concentrations of less than 50 parts per million (ppm)
for all materials that could be tested without disassembly. DLA
indicates that while it believes any components that could not be
tested were excluded from this waste in question, there is a
possibility that inaccessible internal components (e.g., small
capacitors) of certain transformers may contain PCB constituents at or
above 50 ppm.
The material is currently stored in overpack containers at a U.S.
Government-owned storage site on Wake Island. DLA proposes to ship the
materials in these containers to the Customs Territory using U.S. flag
carriers, and in accordance with applicable laws. Upon arrival in port,
the containers would be transported by Department of Transportation
(DOT) permitted carriers to the destination facility. On April 16,
2001, DLA also amended its petition to include the possibility that the
materials could be transported by air on U.S. military aircraft.
DLA proposes in its January 19, 2001, petition to ship the
materials to an EPA-approved PCB disposal facility. While DLA initially
identified Trans Cycle Industries, Inc. (TCI) in Pell City, Alabama as
the receiving facility, it amended its petition on September 28, 2001,
to include any EPA-approved PCB disposal facility as a potential
receiving facility, indicating that it is premature to specify which
approved facility would be contracted to treat and dispose of the
waste. DLA would treat and dispose of all material in compliance with
the U.S. PCB regulations at 40 CFR part 761. Generally, DLA indicates
their intention is to recycle all metal components that can be
decontaminated; if they are not decontaminated they would be buried in
a chemical waste landfill or incinerated. Used oils or liquids would be
decontaminated by dechlorination or sent for energy recovery as fuel.
Non-recyclable material will be disposed of as residual solid waste.
DLA also notes that EPA-approved alternative methods may also be used.
(Note that while DLA is proposing to send this material to a TSCA-
approved facility for initial processing, this is not normally required
[[Page 58571]]
for materials containing less than 50 ppm PCBs that have not been
subject to dilution.)
i. Information regarding no unreasonable risk. EPA requires that
petitioners explain the basis of their contention that unreasonable
risk of injury to health or the environment would not result from the
granting of their petition (40 CFR 750.11(c)(6)). In its petition, DLA
makes several arguments that the proposed activity would present no
unreasonable risk. First, DLA notes the low levels of PCB contamination
involved in this waste, i.e., <50 ppm for all tested material. As DLA
notes, EPA allows the processing, distribution in commerce, and use of
``excluded PCB products'' that contain <50 ppm PCBs because doing so
does not generally present an unreasonable risk to health or the
environment. Excluded PCB products include transformers and other
electrical equipment, and used oils containing <50 ppm PCBs (subject to
certain provisions, see definition Sec. 761.3).
Secondly, DLA explains that the materials would be managed in
accordance with applicable laws, ensuring its safe disposition. DLA
notes the waste will be packed and shipped in compliance with DOT and
EPA regulations, with appropriate bracing, over packs, secondary spill
containment, etc. DLA cites its safe performance record and those of
its contractors, who over the last 4 years have managed some 1.3
million pounds of U.S.-manufactured PCB items returned from Japan
without incident. Regarding disposal risks, DLA notes that ``EPA
licensing of the proposed disposal facilities and approval of the
proposed treatment methods assure that exempted import and disposal of
the material will present no unreasonable risk of injury to health or
the environment'' (Ref. 1, p.3).
Finally, in assessing risks, DLA argues that any risks inherent in
shipment and disposal are far outweighed by the risks inherent in
continued storage of the materials in their present location on Wake
Island. DLA notes that Wake Island, as a U.S. territorial possession,
is defined by TSCA section (3)(13) and (3)(14) as part of the United
States, and is entitled to statutory protection against unreasonable
risk of injury to health or the environment. DLA also cites a recent
Federal Register document (Ref. 8, p. 65656) in which EPA stated:
The prohibitions and restrictions on PCBs under TSCA Section
6(e) and its implementing regulations protect not only the United
States citizens in the 50 states, but United States citizens in all
the territories and possessions of the United States. PCBs in the 50
States and in the territories and possessions must be managed and
disposed of in a manner that does not present an unreasonable risk
to health or the environment.
DLA also cites EPA's March 18, 1996, Import for Disposal Final Rule
(Ref. 5, p. 11099):
Based on the persistence of PCBs in the global environment and
EPA's finding that any exposure to human beings or the environment
may be significant, EPA believes that the safe disposal of PCBs in
approved U.S. facilities poses less risk of injury to health or the
environment in the United States than the continued presence of PCBs
in other countries, since proper disposal in this country provides
protection against possible hazards from improper disposal
elsewhere.
DLA concludes that granting its petition ``will eliminate the risks
cited above by removing these PCBs from Federal property that can not
provide suitable disposal and permitting proper disposal in a manner
limiting releases to the environment to the levels permitted by U.S.
regulations.''
EPA asks petitioners to estimate the economic costs of denial of
their petition (40 CFR 750.11(c)(8)). DLA estimates that the annual
cost of long-term storage on Wake Island is $40,000, covering
inspection, labor, and container replacement, but excluding the costs
of any possible site remediation that could result from a spill if it
were to occur. DLA estimates costs of transport and alternative
disposal in another country, would range from approximately $1.15
million to $3 million, as opposed to approximately $0.85 million for
disposal in the United States. However, as discussed in Unit
IV.A.1.ii., DLA believes that disposal in another country is precluded
by political and policy reasons. DLA also estimates that processing of
this waste on-site at Wake Island would cost approximately $1.2
million, but as discussed in Unit IV.A.1.ii., on-site treatment would
not eliminate the need for an exemption, nor is it desirable for other
reasons.
ii. Information regarding good faith efforts. DLA submits in its
petition that it has made good faith efforts to find alternatives to
disposal of the material within the Customs Territory of the United
States, and that there is no reasonable alternative available. DLA
notes that although most of the PCBs in question are known to be at low
enough levels (<50 ppm) that they could be disposed of legally in a
solid waste landfill (as opposed to a TSCA or Resource Conservation and
Recovery Act (RCRA) chemical waste landfill), that approach is not
appropriate for Wake Island because of its small land area and low
elevation. (The Wake Island atoll's land area is 6.5 square kilometers,
and its highest point is only 6 meters above sea level). Moreover, DLA
notes there are no facilities on Wake Island to provide on-site
processing or treatment for disposal off-island. DLA examined the
alternative of transporting and constructing such processing or
treatment facilities on Wake Island, and concluded the following:
To be properly processed, these PCB materials should be
separated into three streams: 1) metallic components to be recycled;
2) used oils to be treated; and 3) non-recyclable material to be
disposed of as residual solid wastes. According to TCI, a disposal
contractor who analyzed this issue for DLA, the cost of shipping a
mobile PCB treatment system from the United States to Hawaii and
back, and operating the system on Wake Island to clean and initially
process the shipment, would be $1.2 million. Additional and
potentially significant costs under this scenario include shipping
the system from Hawaii to Wake Island and back; providing food and
shelter for contractor personnel; providing power and water to
operate the mobile system; and completing additional required
environmental documentation and other management/oversight
activities.
This processing would also leave large quantities of metallic
components and non-recyclable materials to be disposed of off-
island. In addition, on-island processing would be an incomplete
solution that would not obviate the need for this petition, because
this process would leave the Government with thousands of pounds of
residual PCB-containing materials still requiring a 6(e) petition to
be shipped into the United States for disposal. These requirements,
including the cost of shipping these materials to proper disposal
facilities, would also significantly increase the Government's
overall on-site disposal costs.
Processing on-site at a newly established facility will make it
more difficult to mitigate the unavoidable risks involved in such
activities. Serious PCB spills, worker accidents, and other
incidents will likely be more difficult to address in such a remote
location. Additional risks may be involved in the creation of the
facility on Wake Island, including equipment transportation and
construction activities. In light of the concerns cited above,
engaging in such processing activities on Wake Island would present
significantly greater risks than shipping the materials to a site
where the infrastructure and facilities already exist to process
them properly.
DLA also investigated the possibility of disposal of this waste in
another country. DLA reports there are no PCB disposal facilities in
Japan where this waste originated, and DLA's attempt to ship the waste
to a disposal facility in Canada was unsuccessful, as explained in
detail by DLA in a footnote to its petition. To briefly summarize, in
[[Page 58572]]
March 2000, DLA contracted to have this waste shipped to a disposal
facility in Canada as non-PCB waste, however, due to public protests
and concerns of the Canadian government, the waste was not unloaded in
Vancouver, but was instead returned to Japan the next month. In May
2000, to allay Japanese concerns about the waste remaining in Japan,
the waste was moved to the U.S. territory of Wake Island for interim
storage while DLA sought another disposal solution.
In consequence of the failure of this initial disposal attempt, DLA
investigated disposal options in other countries; an effort that it
summarized in its petition:
The DLA and its primary disposal contractor made extensive
contacts over a period of several months with disposal facilities in
numerous locations outside the United States in an effort to
identify firms who could dispose of this shipment. The DoD also
consulted at length with State Department officials whose
responsibilities included international environmental matters and
the nations under consideration. The variety of problems identified
in these contacts regarding overseas disposal of this shipment
resulted in a consensus that use of existing facilities in other
developed countries was not a reasonable alternative. The final,
coordinated Government position is that this option should be
eliminated from further consideration. Aside from these countries,
there are no other nations with suitable facilities that could
accept the material, given the constraints of Article 11 of the
Basel Convention. Even if other countries could accept these wastes,
activist groups could be expected to oppose United States disposal
of its waste in third countries, because the Unites States has the
technical capability to properly dispose of the hazardous materials
itself.
Therefore, DLA concludes that despite its diligent effort to
identify disposal options both on-site and in other countries, there
are no practicable alternatives to disposal in the Customs Territory of
the United States.
2. April 16, 2001, petition to import PCBs located in Japan. On
April 16, 2001, DLA submitted a second petition; this petition sought a
1-year exemption to import PCBs and PCB items currently in temporary
storage on U.S. military installations in Japan. In revised figures
provided in June 2001, DLA estimates that as much as 4,293,621 pounds,
or approximately 1,952 metric tons of waste containing PCBs could be
generated in Japan through the year 2006 and beyond; however, much of
this material is currently still in use, and will not become waste
requiring disposal for several years. Exactly how much waste could be
imported under this exemption would vary depending on when the final
exemption would be in effect, as the exemption is limited to a 1-year
maximum. For example, if EPA were to grant a 1-year exemption to import
that would expire on December 31, 2003, then according to DLA up to
2,104,189 pounds, or approximately 956 metric tons of material could
theoretically be available for shipment for disposal (Appendix 1:
totals for CY2001 + CY2002 + 2003). The material in Japan consists of
liquids, electrical transformers, capacitors, switches, circuit
breakers, other miscellaneous items, and debris (rags, small parts, and
packaging materials). PCB concentrations of the waste include amounts
at all concentrations; however, most of the waste is at concentrations
below 50 ppm PCB. Details of particular amounts and concentrations are
provided in Appendix 1 (Refs. 9 and 11).
DLA proposes to package and transport, treat, and dispose of this
PCB waste in the same manner as waste identified in the previous
petition; DLA notes compliance is required with the International
Maritime Dangerous Goods (IMDG) Code/International Maritime
Organization (IMO), International Civil Aviation Organization (ICAO)
Technical Instructions, the International Air Transport Association
(IATA) Dangerous Goods Code, UN Recommendations on the Transport of
Dangerous Goods Code, and 49 CFR parts 100-199. DLA further notes
proper handling and shipping shall include blocking, bracing, over
packing, and inclusion of spill containment devices as required by
applicable transportation regulations.
DLA states it would handle and dispose of all PCBs in conformance
with the PCB regulations at 40 CFR part 761. DLA notes that it has
``considerable experience and expertise in awarding and administering
disposal contracts for PCB waste in the United States'' and that it
will only ``use contracts with commercial firms providing such services
in accordance with all applicable Federal procurement statutes and the
Federal Acquisition Regulations (FAR).'' DLA states that it has not yet
identified the specific companies that would receive the waste, but
that only Federal and State-permitted facilities would be used.
Proposed treatment would be in accordance with the options allowed by
40 CFR part 761, including landfilling, incineration, decontamination
and recovery of metal, decontamination or burning of used oil, and
alternative technologies where allowed.
i. Information regarding no unreasonable risk. As in the previous
petition, DLA notes that the materials in question would be managed in
accordance with all applicable laws and regulations. Once in the United
States, the PCB waste would be transported, handled, treated and
disposed of in compliance with the PCB regulations at 40 CFR part 761.
DLA states they would only contract with companies with the required
Federal and State-permitted storage, treatment, and disposal facilities
for dealing with PCBs and PCB items. DLA notes that it and its
contractors ``have extensive experience in safely returning U.S.-
manufactured PCBs and PCB items to the United States for disposal,''
and that ``over the last four years DLA has returned over 1.3 million
pounds of U.S.-manufactured PCBs and PCB items from Japan to the United
States using the same standards and procedures described above with no
known spills or safety problems.''
In contrast, DLA notes that the continuing storage of PCBs at U.S.
facilities in Japan is problematic. As discussed in Unit IV.A.2., DoD
currently has a considerable amount of PCB waste in storage at its
facilities in Japan, and more will accumulate over the coming years as
equipment is retired from use and contaminated sites are cleaned up.
DLA notes that due to the unavailability of disposal capacity much of
DLA's foreign-manufactured PCB waste inventory has been in storage for
years; some facilities, including the largest PCB storage facility at
Sagami, are at or near their storage capacity, and movement of PCB
waste presently in storage is frequently necessary to accommodate
additional PCBs taken out of service. DLA summarizes the risks of this
situation as follows:
Continued, indefinite storage and lack of in-country disposal
capacity increase the risk of exposure to U.S. military personnel,
to people living in and around the U.S. military installations where
the PCBs are stored, and to the environment should spills occur due
to human error, severe weather such as typhoons, or earthquakes.
Storage containers deteriorate, increasing the likelihood of PCB
exposure to personnel who must monitor such items and repack them if
they suspect leakage. Frequent handling creates multiple
opportunities for spills or exposures. Long-term storage may
increase DoD's liability and create clean-up costs if accidental
spills occur. All of these scenarios potentially increase exposure
to U.S. personnel, local citizens, and to the ground and water. This
problem is magnified in Japan, because the installations where these
materials are located are relatively small, storage space is at a
premium, and the surrounding civilian communities are located in
very close proximity to the stored PCBs. PCBs and PCB items in
indefinite storage, therefore, present a greater risk to human
health and the
[[Page 58573]]
environment than PCBs stored for disposal in the mainland United
States.* * *
DLA further notes that EPA expressed concerns about long-term storage
in the PCB Import for Disposal Rule (Ref. 5, p. 11096):
EPA believes that PCB wastes which are not disposed of for
extended periods of time or which are not disposed of in facilities
providing equivalent protection from release to the environment may
pose an unreasonable risk of injury to health and the environment.
As in its previous petition, DLA cites the concerns EPA expressed in
1996 about the benefits of safe disposal of PCBs in the United States
as opposed to their continued presence in other countries. Finally, DLA
notes that EPA mandates a 1-year storage for disposal limit for PCB
waste, and concludes that ``the same long-term storage and risk
concerns that apply to facilities in the U.S. should also apply to DoD
installations overseas.''
Beyond the immediate environmental risk, DLA describes other
benefits to the United States that it believes would result from the
granting of its petition:
* * * failure of the United States to permit disposal of waste
it generated overseas in furtherance of its national interests not
only strains relations at the national government level, but also
exacerbates tensions between each facility with such materials and
the local community. In 1968, a tragic human poisoning episode in
Western Japan affected over 1,000 people and caused 22 deaths. The
``Yusho'' or ``rice oil disease'' was attributed to the consumption
of rice bran oil contaminated with PCBs and served as a catalyst for
current PCB bans such as those imposed by TSCA. As a result of this
highly publicized incident, Japanese citizens exhibit particular
sensitivity to PCB issues. Denial of this petition could adversely
affect delicate U.S.-Japan relations over the presence and operation
of the U.S. Armed Forces in Japan. The presence of PCBs on U.S.
Military bases in Japan has, in fact, attracted significant adverse
attention from Japanese politicians, the Japanese press, Japanese
environmental groups and local citizens. Regular surveillance of DoD
storage operations in Sagamihara and demands for inspections and
sampling have occurred since a member of the U.S. Congress released
a report outlining the storage and presence of PCBs and other
hazardous materials on U.S. bases in Japan. The perceived failure by
the U.S. Military to resolve the current PCB disposal dilemma posed
by the TSCA importation ban invites unwarranted claims that the U.S.
Military is neglecting its environmental responsibilities.
DLA concludes:
Granting this petition presents no unreasonable risks and will
serve to mitigate or lessen the risk of injury to public health and
the environment of Japan. Petition approval will demonstrate
environmentally responsible behavior by the United States and
further the United States' interests by maintaining good relations
with a valued ally as it will significantly reduce the risk of
injury to the health of persons of both nations and to the
environment in Japan. Granting this petition will eliminate the
risks cited above by removing these PCBs from U.S. Military
facilities in a country that can not provide suitable disposal in a
manner limiting releases to the environment to the levels permitted
by U.S. regulations.
In response to the request that petitioners estimate the economic
costs of denial, DLA concluded that the economic consequences of a
petition denial ``are not readily susceptible to objective
quantification.'' DLA did note, however, that indirect costs, such as
those stemming from international controversy over disposal abroad or
those related to continued storage and exposure risks in Japan, ``while
difficult to quantify, are of potentially greater magnitude than the
direct costs of petition denial.''
ii. Information regarding good faith efforts. DLA argues in its
petition that disposal of its PCBs in Japan is not an available
disposal option:
There are currently no Japanese government permitted operators
or companies, or adequate facilities to provide treatment or
processing of these items on-site at DoD Military installations in
Japan. A report by UNEP [United Nations Environment Program],
published in August 2000, lists three companies in Japan offering
alternate technology for processing and treatment of PCBs. As far as
DLA can determine at this time, these technologies are demonstration
technologies that lack permits for operation in Japan. Additional
risks and negative public perception by the local Japanese
communities may be involved in the creation of such a facility,
including objections to equipment transportation and construction
activities. In light of the concerns cited above, engaging in on-
site processing activities using a temporary facility in Japan would
present significantly greater public relations problems and
potentially greater environmental and health risks than shipping the
materials to a U.S. domestic site where the infrastructure and
facilities already exist to process them properly. Finally, DoD
policy currently prohibits the treatment of this material on a U.S.
installation. In addition, even if DoD policy changed, any PCB
treatment on Japanese territory on a U.S. installation would require
permission from appropriate Japanese government officials.
DLA also notes elsewhere that even if a commercial or government
disposal facility is established in Japan in the near future, DLA's
inventory of PCBs is unlikely to receive first priority for access to
that facility ahead of the large stockpiles of commercial or Japanese
government PCBs in long-term storage in Japan.
DLA further argues that disposal of this waste in another country
is not a viable option. DLA cites its 1999 Report to Congress as
background on the difficulty it faces in finding suitable disposal
alternatives for PCB waste generated by DoD overseas. DLA also notes
the difficulty it had in its previous attempt to ship low-level PCBs
from Japan to Canada for disposal (resulting in the other petition that
is the subject of this proposed rule). In particular, DLA discusses the
difficulty of shipping waste from Japan to other countries posed by the
Basel Convention (Ref. 36):
In 1998 DLA awarded a contract for the proper disposal of PCBs
from Japan to an acceptable facility outside the United States.
However, because the PCBs fall under the Basel Convention on the
Control of Transboundary Movement of Hazardous Wastes and Their
Disposal (Basel), a DLA contractor was required to comply with the
notice and consent regime imposed by Basel. Unfortunately, the DLA
contractor was not able to persuade Japanese officials to prepare
the necessary Basel notifications. DLA and its primary disposal
contractor made extensive contacts over a period of several years
with Japanese officials and disposal facilities in numerous
locations outside the United States in an effort to identify firms
who could dispose of such waste while satisfying Basel requirements.
DoD also consulted at length with State Department officials in
Japan and the United States whose responsibilities included
international environmental matters. Although Japanese officials
seemed willing to allow DoD to remove the PCBs pursuant to the
United States--Japan Status of Forces Agreement (SOFA), the DLA
contractor was unable to identify acceptable third countries that
could receive the PCBs without Basel notification from Japan. The
apparent preference by Japanese officials for shipment to the United
States under the SOFA could not be accommodated due to the U.S. TSCA
import ban. The variety of problems identified in various contacts
regarding overseas disposal of PCBs resulted in a consensus that use
of existing facilities in other developed nations was not a
reasonable alternative.
DLA concludes that it has made every reasonable effort to locate
appropriate disposal sites outside the United States and that it has
accordingly satisfied the good faith efforts criteria necessary for an
exemption.
B. EPA's Proposed Decision on Petitions
1. January 19, 2001, petition; EPA proposes to grant this petition.
EPA agrees with DLA's reasoning that this waste, being primarily and
perhaps exclusively at concentrations below 50 ppm PCBs, has little
inherent potential to pose an unreasonable risk to health or the
environment. Even more germane to this waste than the ``Excluded PCB
Products'' processing, distribution, and use standards referred to by
DLA are the disposal regulations at 40 CFR part 761, subpart D that do
not require waste below 50 ppm PCBs be disposed of in
[[Page 58574]]
a TSCA or RCRA approved facility, provided the concentration was not
affected by dilution. EPA notes the prohibition on import of PCBs at
concentrations less than 50 ppm stems from the TSCA ban on
``manufacture'' of PCBs and is not based on any specific finding of EPA
that importing PCBs at concentrations less than 50 ppm for disposal
presents any unreasonable risk. Prior to 1997, EPA allowed such imports
for disposal without restriction. (EPA authorized the import for
disposal of PCBs at concentrations of less than 50 ppm in 1984 (Ref.
37), at 40 CFR 761.20(b)(2), using the authority of TSCA section
6(e)(1). This import provision was recodified from Sec. 761.20(b) to
Sec. 761.93(a)(1)(i) as part of the March 18, 1996, PCB Import for
Disposal Rule (Ref. 5). On July 7, 1997, the U.S. Court of Appeals for
the Ninth Circuit overturned the PCB Import for Disposal Rule, on the
grounds that EPA could not rely, as it did, on TSCA section 6(e)(1) to
authorize imports of PCBs for disposal. Sierra Club v. EPA, 118 F 3d
1324 (9\th\ Cir. 1997). EPA amended Sec. 761.93 on June 29, 1998 (Ref.
6) to reflect the Sierra Club decision, by changing it to state that no
person may import PCBs or PCB items for disposal without a TSCA section
6(e)(3) exemption.)
EPA also concurs with DLA's assessment that transportation of this
waste poses no significant risk if conducted in accordance with all
applicable laws and regulations. Domestically, EPA permits the
processing and distribution in commerce of PCBs and PCB items at
concentrations less than 50 ppm for disposal (Sec. 761.20(c)(4))
without additional restriction. Higher concentration PCBs and PCB items
may be processed and distributed in commerce for disposal in compliance
with part 761 (which requires marking, manifesting, registration,
recordkeeping, etc.). In issuing the PCB Import for Disposal rule EPA
investigated and sought comment on the risks inherent in transportation
of imported PCB waste, and determined those risks to be insignificant
(Ref. 5, p. 11097).
As this waste will be processed and, where required, disposed of at
EPA-approved PCB disposal facilities, EPA finds that the import and
disposal of this waste will not pose an unreasonable risk of injury to
health or the environment. EPA approves all TSCA PCB disposal
facilities on the basis of this standard, whether the unit be an
incinerator, chemical waste landfill, or alternative process, such as a
decontamination or chemical dechlorination operation. Similarly, EPA
has previously determined that other disposal options for PCB waste at
concentrations below 50 ppm, such as burning used oil for energy
recovery in compliance with 40 CFR 761.20(e), pose no unreasonable risk
to health or the environment.
Moreover, any risks inherent in transportation and disposal must be
weighed against the risks of continued long-term storage. As DLA noted,
Wake Island is a part of the United States and under TSCA it is
entitled to the protection against unreasonable risk of injury to
health or the environment. Generally, EPA considers long-term storage
of PCB waste to pose an unacceptable risk due to threat of leaks and
spills, and with certain limited exceptions, EPA limits storage for
disposal of PCB waste to 1-year from the date the waste was generated
(40 CFR 761.65(a)). As discussed at length by EPA in recent Federal
Register documents (Refs. 7 and 8) the long-term storage of PCBs in
U.S. territories and possessions outside the Customs Territory of the
United States, such as Wake Island, often poses additional risks;
examples of problems cited included risk of severe storms, sensitive
ecosystems, limited available land, low elevation and water resources
that are vulnerable to contamination. For instance, while 40 CFR
761.65(b)(1)(v) stipulates that PCB waste storage sites should not be
located below the 100-year floodgate elevation, the highest elevation
on Wake Island is only 6 meters above sea level. Therefore, EPA
concludes that removal of this PCB material from Wake Island in the
most expeditious manner possible will reduce risk of injury to health
and the environment.
Other benefits to the United States will be realized through the
granting of this petition, as well. One of EPA's purposes in
promulgating 40 CFR 761.99(c) was to address the inequitable treatment
of the territories outside the Customs Territory of the United States
that was inadvertently created by the manufacturing ban of TSCA section
6(e)(3) (Refs. 7 and 8). EPA believes that granting this exemption will
likewise allow waste stored in the territories to be managed and
disposed of in a manner similar to waste generated in other States, and
it will prevent the Pacific Island territories of the United States
from bearing any undue burden for the disposal of such waste.
Furthermore, as this waste is the property of the U.S. Government, and
it was generated by the U.S. Government while conducting its affairs
abroad, EPA believes the U.S. Government has an obligation to allow
this waste to be safely disposed of under its jurisdiction in the
United States. A grant of this petition would allow the United States
Government to solve one of its own toxic waste problems without relying
on other countries' disposal resources. Thus, EPA finds that DLA has
provided adequate justification for a finding that the activity
proposed in this petition would not pose an unreasonable risk of injury
to health or the environment.
EPA also finds that DLA has made good faith efforts to find
alternatives to import into the Customs Territory. EPA agrees with DLA
that Wake Island is an unsuitable location for attempts at on-site
disposal, due to its extremely remote location, small size, lack of
facilities, and fragile environment. In addition, as DLA notes,
decontamination procedures typical for this type of waste would not
eliminate all PCBs and the concomitant need for an exemption. EPA also
believes DLA has made good faith efforts to find disposal alternatives
in other countries; indeed, the waste came to Wake Island as a result
of an unsuccessful effort to dispose of it abroad. EPA is well aware of
DLA's growing difficulty in disposing of its foreign-manufactured waste
abroad, a problem outlined in DLA's report to Congress in 1999 (Ref.
33), and EPA has been aware of DLA's substantial efforts since April
2000 to identify options for disposal of this particular waste in a
responsible manner, including disposal in another country. EPA accepts
DLA's assessment that with the notoriety that is now attached to this
particular waste shipment and the difficulty of satisfying Basel
Convention obligations, acceptance of this waste by another country for
disposal is unlikely to ever occur. EPA further notes that disposal in
a facility in the United States, but outside the Customs Territory of
the United States, e.g., in another Pacific territory, is not an
alternative because no suitable facilities exist. Finally, EPA also
believes it relevant to the good faith issue that, as noted earlier,
this waste was generated by the U.S. Government while conducting its
affairs abroad, and thus the United States bears some obligation to
provide for the safe disposal of this waste in the United States if it
can not be easily disposed elsewhere.
For these reasons, EPA finds DLA has satisfied the exemption
criteria of TSCA section 6(e)(3)(B) and proposes to grant this
petition.
2. April 16, 2001, petition; EPA proposes to grant this petition.
As with the previous petition, EPA concurs with DLA's assessment that
transportation of this waste will pose no unreasonable
[[Page 58575]]
risk if conducted in accordance with all applicable laws and
regulations. As noted in Unit IV.B.1., EPA permits the domestic
processing and distribution in commerce of PCBs and PCB items for
disposal in compliance with part 761, and in issuance of the PCB Import
for Disposal rule EPA investigated and sought comment on the risks
inherent in transportation of imported PCB waste, and determined those
risks to be insignificant (Ref. 5, p. 11097). Also, as discussed in
Unit IV.B.1. in regard to the Wake Island petition, EPA finds generally
that the disposal of imported PCB waste at an EPA-approved PCB disposal
facility poses no unreasonable risks as these facilities have been
approved on the basis of that standard.
EPA believes that granting this petition will benefit the United
States in several ways. As DLA notes, the continued long-term storage
of PCB waste on U.S. military facilities in Japan poses risks of
exposure to U.S. personnel and the environment--risks that can be
mitigated through the action proposed in this petition. Also, the
reduction of risk to Japanese citizens must be considered advantageous,
especially in light of the heightened concerns over PCBs in that
country and the sensitivities surrounding the U.S. military's presence
in Japan. Currently, the U.S. military is in the awkward position of
explaining to its Japanese hosts that it can not remove its toxic waste
from their country because United States law does not allow the waste
to be sent to the United States. As with the Wake Island petition,
granting this petition allows the United States to accept
responsibility for solving its own toxic waste problems. Thus, EPA
finds that the activity proposed in this petition would not pose an
unreasonable risk of injury to health or the environment.
EPA believes that DLA has demonstrated good faith efforts to find
alternatives to disposal of this PCB waste in the United States. EPA is
aware of the lack of adequate PCB disposal capacity in Japan, to which
DoD's large inventory of PCB waste is itself testimony. While EPA is
aware that some recent efforts are underway to establish new disposal
capacity in Japan (Refs. 34 and 35), EPA believes it will be some time
before these new facilities are operational and the large inventories
of commercial and government PCB waste that have accumulated over the
years in Japan will be eliminated. Moreover, as DLA notes, even
assuming adequate disposal capacity becomes available in Japan in the
near future, there are significant political obstacles that are likely
to prevent the U.S. military disposing of its PCB waste in Japan,
either off-site at a commercial facility or on-site at a U.S. base.
EPA is generally aware of the increasing difficulties DoD has in
disposing of its foreign-generated PCB waste abroad, as described in
its Report to Congress, and as evidenced by the difficulties with the
waste now stored on Wake Island. EPA also acknowledges the peculiar
circumstances of DoD's PCBs, which, while present in one country, are
owned by another's government, leading to significant difficulty in
providing Basel notification to third countries. Given these
difficulties, EPA concurs with DLA's conclusion that disposal in a
third country is not a viable option for this waste. And, as stated
earlier, EPA also believes it relevant to the good faith issue that
since this waste was generated by the U.S. Government while conducting
its affairs abroad, the United States bears some obligation to provide
for the safe disposal of this waste in the United States if it can not
be easily disposed of elsewhere.
For these reasons EPA finds DLA has satisfied the exemption
criteria of TSCA section 6(e)(3)(B) and proposes to grant this
petition.
V. References
1. U.S. Environmental Protection Agency (USEPA), Office of Toxic
Substances (OTS). Polychlorinated Biphenyls (PCBs); Manufacturing,
Processing, Distribution in Commerce, and Use Prohibitions; Final Rule.
OPTS-60001. Federal Register (44 FR 31514, May 31, 1979).
2. USEPA. Polychlorinated Biphenyls (PCBs); Expiration of the Open
Border Policy for PCB Disposal; Notice. OPTS-62008. Federal Register
(45 FR 29115, May 1, 1980).
3. USEPA. Polychlorinated Biphenyls (PCBs); Manufacturing,
Processing, and Distribution in Commerce Exemptions; Proposed Rule.
OPTS-66008F. Federal Register (53 FR 32326, August 24, 1988).
4. USEPA. Disposal of Polychlorinated Biphenyls; Proposed Rule.
OPPTS-6009A. Federal Register (59 FR 62788, December 6, 1994) (FRL-
4167-1).
5. USEPA. Disposal of Polychlorinated Biphenyls (PCBs); Import for
Disposal; Final Rule. OPPTS-66009F. Federal Register (61 FR 11096,
March 18, 1996) (FRL-5354-8).
6. USEPA. Disposal of Polychlorinated Biphenyls (PCBs); Final Rule.
OPPTS-66009C. Federal Register (63 FR 35384, June 29, 1998) (FRL-5726-
1).
7. USEPA. Polychlorinated Biphenyls (PCBs); Return of PCB Waste
from U.S. Territories Outside the Customs Territory of the United
States; Proposed Rule. OPPTS-66020. Federal Register (65 FR 65654,
November 1, 2000) (FRL-6750-6).
8. USEPA. Polychlorinated Biphenyls (PCBs); Return of PCB Waste
from U.S. Territories Outside the Customs Territory of the United
States; Final Rule. OPPTS-66020A. Federal Register (66 FR 17468, March
30, 2001) (FRL-6764-9).
9. DoD, DLA. Petition from Lieutenant General, Henry T. Glisson,
Director, to Carol Browner, Administrator, EPA. Subject: Enclosed
petition. January 19, 2001. 15 pp. with attachments.
10. DoD, DLA. Letter from Lieutenant General, Henry T. Glisson,
Director, to Christine Todd Whitman, Administrator, EPA. Subject:
Enclosed petition. April 16, 2001. 12 pp. with attachments.
11. DoD, DLA. Electronic mail from Karen Moran, Environmental
Quality Division, to Peter Gimlin, National Program Chemicals Division,
OPPT, EPA. Subject: Updated inventory, Appendix 1 to April petition.
June 28, 2001. 2 pp. with attachments.
12. DoD, DLA. Letter from Richard J. Connelly, Director, DLA
Support Services, to Peter Gimlin, Office of Pollution Prevention and
Toxics, EPA. Subject: Revisions to both petitions. September 28, 2001.
2 pp. with attachments.
13. Cabinet set to approve two bills on PCB disposal. The Japanese
Times Online. February 20, 2001. 3 pp.
14. United Nations Environment Programme (UNEP). Inventory of
World-wide PCB Destruction Capacity. First Issue. December 1998. 72 pp.
15. United Nations Environment Programme (UNEP). Survey of
Currently Available Non-Incineration PCB Destruction Technologies.
First Issue. August 2000. 70 pp.
16. Defense Agency will Inspect PCB Storage. The Yomiuri Shimbun.
Tokyo. August 20, 2000. 2 pp.
17. Pollution at Okinawa Bases Cannot be left Uncorrected. Asahi
Shimbun. January 14, 1999. 3 pp.
18. David Armstrong. U.S. Presence on Foreign Soil is Tainted.
Boston Globe. November 15, 1999. 3 pp.
19. Danielle Knight. Environment: Asian Women Demand Cleanup of
U.S. Military Bases. Inter Press Service. October 16, 1998. 3 pp.
20. Japan: Probe Fails to Confirm Source of Pollutant at Kadena Air
Base. Kyodo News Service. September 28, 1998. 1 p.
[[Page 58576]]
21. High Level of PCB Detected in Okinawa. Jiji Press Ticker
Service. February 21, 1997. 1 p.
22. Toxic PCB Detected at Ex-U.S. Facility. Jiji Press Ticker
Service. October 2, 1996. 1 p.
23. MOFA, Environment Agency to Investigate Base PCB Dumping.
Ryukyu Shimp. August 19, 1998. 4 pp.
24. Editorial: Probe Pollution at U.S. Bases. Ryukyu Shimp. August
18, 1998. 3 pp.
25. U.S. Base Pollution #8. Ryukyu Shimpo. August 28, 1998.
1 p.
26. U.S. Rejects Request for PCB Test at Kadena. Japan Economic
Newswire. November 25, 1998. 1 p.
27. Agency Concerned about U.S. Base Pollution. Jiji Press Ticker
Service. February 21, 1992. 1 p.
28. Japan to Check U.S. Base Employees for Waste Contamination.
Asahi News Service. February 18, 1992. 2 p.
29. Sagamihara City. Letter from Tokio Kanero, Councilman, to
Chief, DRMO Sagami. Subject: FOIA request for information on hazardous
material shipments. March 3, 1999. 1 p.
30. Sagamihara City. Letter from Tokio Kanero, Councilman, to Paul
Ortiz, Asia Zone Manager, DRMS International. Subject: March 3, 1999,
FOIA request pertains to PCBs, heavy metals and asbestos only. March
14, 1999. 1 p.
31. DoD, DLA. Letter from Vice Admiral Keith W. Lippert, Director,
to Christie Whitman, Administrator, EPA. Subject: Opportunity to meet
regarding petitions. November 14, 2001. 1 p.
32. USEPA, Office of Research and Development (ORD). PCBs Cancer
Dose-Response Assessment and Application to Environmental Mixtures. EPA
600P-96001F. September 1996. 75 pp. OPPTS-66009C (B3-026)
33. DoD. Report to Congress: Foreign-Manufactured PCBs at U.S.
Military Installations Overseas. March 1999. 20 pp.
34. USEPA, Region 9. Electronic Mail from Max Weintraub to Peter
Gimlin, EPA, OPPT, Re: Startech Environmental's 8/23/2001 Press
Release. September 5, 2001. 2 pp.
35. Japan Government Submits Legislation Requiring Destruction of
All PCBs in 15 years. BNA International Environment Daily. March 23,
2001. 1 p.
36. USEPA. Hazardous Waste Management System; Notification
Concerning the Basel Convention's Potential Implications for Hazardous
Waste Exports and Imports. Federal Register (57 FR 20602, May 13,
1992).
37. USEPA. Toxic Substances Control Act; Polychlorinated Biphenyls
(PCBs) Manufacturing, Processing, Distribution in Commerce, and Use
Prohibitions; Exclusions, Exemptions and Use Authorizations; Final
Rule. OPTS-62032A. Federal Register (49 FR 28172, July 10, 1984).
VI. Regulatory Assessment Requirements
A. Regulatory Planning and Review
Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), this action is not a
``significant regulatory action'' subject to review by the Office of
Management and Budget (OMB), because this action is not likely to
result in a rule that meets any of the criteria for a ``significant
regulatory action'' provided in section 3(f) of the Executive order.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
government jurisdictions.
For purposes of assessing the impacts of this proposed rule on
small entities, small entity is defined as:
1. A small business that meets the Small Business Administration
size standards codified at 13 CFR 121.201;
2. A small governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; and
3. A small organization that is any not-for-profit enterprise which
is independently owned and operated and is not dominant in its field.
After considering the impacts of this proposed rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements on small entities. EPA
is proposing to grant two petitions by DLA to import PCBs for disposal.
Only DLA, which is not a small entity, would be regulated by this
proposed rule.
C. Paperwork Reduction Act
Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., an agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
This proposed rule would not impose any new information collection
burden. Once the exemption is granted as proposed, DLA will be subject
to the existing EPA regulations regarding the disposal of PCBs in 40
CFR part 761. OMB has previously approved the information collection
requirements contained in 40 CFR part 761 under the PRA, and has
assigned OMB Control No. 2070-0112 (EPA ICR No. 1446.07).
The annual public burden approved under OMB Control No. 2070-0112,
is estimated to average 0.57 hours per response. As defined by the PRA
and 5 CFR 1230.3(b), ``burden'' means the total time, effort, or
financial resources expended by persons to generate, maintain, retain,
or disclose or provide information to or for a Federal agency. For this
collection it 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.
Copies of this ICR document may be obtained from Susan Auby, by
mail at the Office of Environmental Information, Collection Strategies
Division (2822T), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001, by e-mail at auby.susan@epa.gov,
or by calling (202) 566-1972. Copies may also be downloaded from the
Internet at http://www.epa.gov/icr. Include the EPA ICR number and/or
OMB control number in any correspondence.
D. Unfunded Mandates Reform Act
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
(UMRA), Public Law 104-4, EPA has determined that this proposal does
not contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any 1 year. EPA is proposing to
grant two petitions by DLA to import PCBs for
[[Page 58577]]
disposal. If the petitions are granted, and DLA imports PCBs for
disposal, DLA would be required to comply with the existing regulations
on PCB disposal at 40 CFR part 761. The only mandate that would be
imposed by this proposed rule would be imposed on DLA. In addition, EPA
has determined that this proposed rule would not significantly or
uniquely affect small governments. The DLA petitions state that the
PCBs will be disposed of in PCB-approved facilities. No new facilities,
which could affect small government resources if a permit is required,
are contemplated. EPA believes that the disposal of PCBs in previously
approved facilities in the amounts specified in this proposal would
have little, if any, impact on small governments. Thus, this proposed
rule is not subject to the requirements of UMRA sections 202, 203, 204,
and 205.
E. Federalism
Executive Order 13132, entitled Federalism (64 FR 43255, August 10,
1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. EPA is proposing to grant two
petitions from DLA to import PCBs and dispose of them in accordance
with existing regulations. There will be no direct effects on the
States, nor will there be any impact on the relationships between the
various levels of government with respect to PCB disposal issues. Thus,
Executive Order 13132 does not apply to this proposed rule. However, in
the spirit of Executive Order 13132, and consistent with EPA policy to
promote communications between EPA and State and local governments, EPA
specifically solicits comment on this proposed rule from State and
local officials.
F. Consultation and Coordination with Indian Tribal Governments
Executive Order 13175, entitled Consultation and Coordination with
Indian Tribal Governments (59 FR 22951, November 9, 2000), requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' This proposed rule does not have
tribal implications, as specified in Executive Order 13175. EPA's
proposal would grant two petitions from DLA to import PCBs and dispose
of them in PCB-approved disposal facilities in accordance with existing
regulations. EPA does not believe that this activity will have any
impacts on the communities of Indian tribal governments. Thus,
Executive Order 13175 does not apply to this proposed rule. However, in
the spirit of Executive Order 13175, EPA specifically solicits comment
on this proposed rule from tribal officials.
G. Children's Health
Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to any proposed rule that:
1. Is determined to be ``economically significant'' as defined
under E.O. 12866, and
2. Concerns an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. If
the regulatory action meets both criteria, the Agency must evaluate the
environmental health or safety effects of the planned rule on children,
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
This proposed rule is not subject to the Executive order because it
is not economically significant as defined in E.O. 12866, and because
the Agency does not have reason to believe the environmental health or
safety risks addressed by this action present a disproportionate risk
to children. EPA is proposing to grant two petitions from DLA to import
PCBs and dispose of them in PCB-approved disposal facilities in
accordance with existing regulations. EPA believes that the import and
disposal of the amount of PCBs specified in the exemption petitions
will present little, if any, additional risk to persons living in the
vicinity of the approved disposal facilities or in the communities
through which the PCBs may be transported.
H. Energy Effects
This proposed rule is not subject to Executive Order 13211,
entitled Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use (66 FR 28355 (May 22, 2001),
because it is not a significant regulatory action under Executive Order
12866.
I. The National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards. This
proposed rule does not involve technical standards. Therefore, EPA is
not considering the use of any voluntary consensus standards.
J. Constitutionally Protected Property Rights
EPA has complied with Executive Order 12630, entitledGovernmental
Actions and Interference with Constitutionally Protected Property
Rights (53 FR 8859, March 15, 1988), by examining the takings
implications of this proposed rule in accordance with theAttorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings issued under the Executive order.
K. Civil Justice Reform
In issuing this proposed rule, EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct, as required by
section 3 of Executive Order 12988, entitled Civil Justice Reform (61
FR 4729, February 7, 1996).
Lists of Subjects in 40 CFR Part 761
Environmental protection, Hazardous substances, Labeling,
Polychlorinated biphenyls (PCBs), Reporting and recordkeeping
requirements.
[[Page 58578]]
Dated: September 12, 2002.
Stephen L. Johnson,
Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
Therefore, 40 CFR chapter I is proposed to be amended as follows:
PART 761--[AMENDED]
1. The authority citation for part 761 continues to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2611, 2614, and 2616.
2. Section 761.80 is amended by adding a new paragraph (j) to read
as follows:
Sec. 761.80 Manufacturing, processing and distribution in commerce
exemptions.
* * * * *
(j) The Administrator grants the following petitions to import PCBs
and PCB items for disposal pursuant to this part:
(1) United States Defense Logistics Agency's January 19, 2001,
petition for an exemption for 1 year to import PCBs and PCB Items
stored on Wake Island and identified in its petition for disposal.
(2) United States Defense Logistics Agency's April 16, 2001,
petition for an exemption for 1 year to import PCBs and PCB Items
stored or in use in Japan and identified in its petition, as amended,
for disposal.
* * * * *
[FR Doc. 02-23718 Filed 9-13-02; 2:56 pm]
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