Disposal of Polychlorinated Biphenyls (PCBs)

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-H[email protected].

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:

------------------------------------------------------------------------

Examples of Regulated

Category Entities

------------------------------------------------------------------------

Industry Chemical manufacturers,

electroindustry

manufacturers, end-users of

electricity, PCB waste

handlers (e.g., storage

facilities, landfills and

incinerators), waste

transporters, general

contractors

------------------------------------------------------------------------

Utilities and rural electric cooperatives Electric power and light

companies

------------------------------------------------------------------------

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

[[Page 35385]]

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

[[Page 35386]]

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 10-6 range.

Estimates of the detection limits that would be required to estimate a

10-6 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 10-6 range.

See Table 1 of the support document for estimates of the detection

limits that would be required to estimate a 10-6 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-g/100

cm2). 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 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 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., 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 1

ppm, or 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 25 ppm

to 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,

10 micrograms PCBs per 100 square centimeters (g

PCBs/100 cm2) (see Sec. 761.79(b)(3)(i) of the regulatory

text); for non-porous surfaces in contact with liquid PCBs destined for

smelting, 100 g PCBs/100 cm2 (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, 10 g PCBs/100 cm2

(see Sec. 761.79(b)(4) of the regulatory text).

Decontamination standards for liquids are as follows: for water,

0.5 g PCBs/L (approximately 0.5 ppb) for

unrestricted use (see Sec. 761.79(b)(1)); and for organic and non-

aqueous inorganic liquids, 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

(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 g

PCBs/100 cm2 to less than 100 g/100 cm2.

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

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 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 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 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 50 ppm

PCB, but 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 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 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 50 ppm if steps are taken to

identify and reduce PCBs to 50 ppm bear the ML 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 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 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 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

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 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 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 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 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 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 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 (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 ML

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 ML 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 ML 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 ML, 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 ML 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 ML 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 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 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., 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 50 ppm. There is one provision for abandonment

and one provision for removal with subsequent action that apply to PCB-

Contaminated systems (i.e., 50 and 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 in the organic phase.

i. Abandonment. The final rule specifies how natural gas pipeline

systems containing 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

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

g/100 cm2, 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 cm2 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 g PCB/100

cm2 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 t

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