[Federal Register Volume 64, Number 121 (Thursday, June 24, 1999)]
[Rules and Regulations]
[Pages 33755-33762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16098]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 761
[OPPTS-66009E; FRL-6072-4]
RIN 2070-AC01
Technical and Procedural Amendments to TSCA Regulations--Disposal
of Polychlorinated Biphenyls (PCBs)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; technical and procedural amendments.
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SUMMARY: The Environmental Protection Agency published in the Federal
Register of June 29, 1998 a document amending the regulations affecting
disposal of polychlorinated biphenyls (PCBs). EPA has identified
several technical errors in that document. This rule corrects those
errors. In addition, this rule establishes procedures for requesting an
approval for risk-based sampling, cleanup, storage, or disposal of PCB
remediation waste, and for risk-based decontamination or sampling of
decontaminated material, where those activities occur in more than one
EPA Region.
DATES: This rule is effective June 24, 1999. In accordance with 40 CFR
23.5, this rule is promulgated for purposes of judicial review at 1
p.m. eastern standard time on July 8, 1999.
FOR FURTHER INFORMATION CONTACT: Christine Augustiniak, Acting
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) 544-0551, e-
mail: TSCA-Hotline@epa.gov.
For technical information contact: Julie Simpson, Attorney Advisor,
National Program Chemicals Division (7404), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 401 M St., SW.,
Washington DC 20460; telephone number: 202-260-7873; fax number: 202-
260-1724; e-mail address: simpson.julie@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Important Information
A. Does this Notice Apply to You?
You may be affected by this notice if you manufacture, process,
distribute in commerce, use, or dispose of PCBs or materials containing
PCBs. Regulated categories and entities may include, but are not
limited to:
[[Page 33756]]
------------------------------------------------------------------------
Examples of Regulated
Category Entities
------------------------------------------------------------------------
Industry.................................. Chemical manufacturers
Electro-industry
manufacturers
End-users of electricity
PCB waste handlers (such as
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 or agencies
governments. which own, manufacture,
process, distribute in
commerce, use, or dispose
of PCBs
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. Other types of entities not listed in this table could also be
regulated. To determine whether you or your business is regulated by
this action, you should carefully examine the applicability criteria in
40 CFR Part 761. If you have any questions regarding the applicability
of this action to a particular entity, consult the person listed in the
``FOR FURTHER INFORMATION CONTACT'' section.
B. How Can I Get Additional Information or Copies of Support Documents?
1. Electronically. You may obtain electronic copies of this
document and various support documents from the EPA Home page at the
Federal Register - Environmental Documents entry for this document
under ``Laws and Regulations'' (http://www.epa.gov/fedrgstr/).
2. In person. The official record for this notice, as well as the
public version, has been established under docket control number
[OPPTS-66009], (including any comments and data submitted
electronically as described below). A public version of this record,
including printed, paper versions of any electronic comments, which
does not include any information claimed as CBI, is available for
inspection in Rm. G-099, Waterside Mall, 401 M St., SW., Washington,
DC.
C. How and to Whom Do I Submit Comments?
This rule promulgates technical and procedural amendments to the
PCB Disposal Amendments. EPA is not soliciting comments.
II. Authority
This action is issued under the authority of sections 6(e)(1) and
6(e)(2)(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)).
III. Background
The PCB Disposal Amendments published on June 29, 1998 (63 FR
35384)(FRL-5726-1), promulgated significant amendments to 40 CFR part
761 affecting the use, manufacture, processing, distribution in
commerce, and disposal of PCBs. Among other things, the Disposal
Amendments authorized additional uses of PCBs, provided new
alternatives for the cleanup and disposal of PCBs, established
standards and procedures for decontaminating materials contaminated
with PCBs, and created a mechanism for recognizing, under TSCA, other
Federal or State waste management permits or approvals for PCBs.
A number of technical errors occurred in publishing the Disposal
Amendments. These errors included typographical errors resulting in
incorrect characters, numbers, and units of measurement; incorrect
cross-references to the codified text; editing errors resulting in
differences between the preamble provisions and the codified text of
the rule; and errors in transcribing the final version of the rule for
publication. This rule corrects those errors.
This rule also corrects several instances of incorrect use of the
term ``industrial furnace''. The proposed Disposal Amendments, 59 FR
62788 (December 6, 1994), included provisions for disposal of certain
types of PCB waste in combustion facilities, termed ``industrial
furnaces'', that complied with specified operating parameters and
conditions. (See 59 FR 62803.) Commenters expressed confusion over
EPA's use of the term ``industrial furnace'', since the proposed
operating conditions and parameters were not identical to those
applicable to an ``industrial furnace'' as defined in the regulations
at 40 CFR 260.10 that implement the Resource Conservation and Recovery
Act (40 U.S.C. 6901 et seq.). In Sec. 761.72 of the final rule, EPA
changed the term ``industrial furnace'' to ``scrap metal recovery
oven'' or ``smelter''. (See 63 FR 35402.) Both the preamble and the
codified text, however, incorrectly retain several references to the
term ``industrial furnace''.
In addition, this rule establishes a procedure for requesting an
approval for risk-based sampling, cleanup, storage, or disposal of PCB
remediation waste under Sec. 761.61(c), and for risk-based
decontamination or sampling of decontaminated material under
Sec. 761.79(h), where those activities occur in more than one EPA
Region. Those sections of the Disposal Amendments now require a person
wishing to engage in those activities to apply for and receive an
approval from the EPA Regional Administrator. This rule amends those
sections to provide that requests for approval of these activities
should be submitted to the EPA Regional Administrator for activity
occurring in a single EPA Region, and to the Director, National Program
Chemicals Division, for activities occurring in more than one EPA
Region.
Under section 553(b) of the Administrative Procedure Act (APA), 5
U.S.C. 553(b), the requirements to publish a notice of proposed
rulemaking and to offer an opportunity for public comment do not apply
to rules of agency organization, procedure, or practice, or to rules as
to which the agency for good cause finds that notice and public
procedure are impracticable, unnecessary, or contrary to the public
interest. EPA finds that the technical corrections and amendments
included in this rule are minor, routine clarifications that will not
have a significant effect on industry or the public, and that prior
notice and opportunity for public comment are therefore unnecessary.
Similarly, EPA is promulgating the procedural changes in this rule
without notice or opportunity for public comment as provided for in
section 553(b) of the APA.
A. Technical Corrections to the Preamble
Below are listed errors in the preamble to the Disposal
Amendments, with reference to the page and column of the Federal
Register in which they occurred, and the correct text.
1. On page 35388, a word was inadvertently omitted. In the fourth
sentence of the first full paragraph of the first column, the phrase
``and a non-aqueous phase containing 60 ppm''
[[Page 33757]]
should read, ``and a non-aqueous liquid phase containing 60 ppm''.
2. Page 35390 contains an incorrect character. In the first
sentence of the third full paragraph of the second column, the phrase,
``for non-porous surfaces in contact with liquid PCBs destined for
smelting, 100 g PCBs/100 cm2'', should
read, ``for non-porous surfaces in contact with liquid PCBs destined
for smelting, <100>g PCBs/100 cm2''.
3. Page 35390 refers to different units of measurement than are
used in the corresponding regulatory text at Sec. 761.79(b)(2). In the
first partial paragraph of the third column, the phrase, ``for organic
and non-aqueous inorganic liquids, 2 mg PCBs/L'', should
read, ``for organic and non-aqueous inorganic liquids, 2 mg
PCBs/kg''; the phrase, ``The codified text uses ppm or milligrams per
liter (mg/L) for concentration measurements of non-aqueous liquids'',
should read, ``The codified text uses ppm or milligrams per kilogram
(mg/kg) for concentration measurements of non-aqueous liquids''.
4. Page 35390 contains an incorrect citation. In the fifth
sentence of the first full paragraph of the third column,
``Sec. 761.79(g)(2)'' should read ``Sec. 761.79(g)(3)''.
5. EPA has been informed of a new address for the American Society
for Testing and Materials. On page 35391, in the second sentence of the
third full paragraph of the third column, ``Philadelphia, PA'' should
read ``West Conshohocken, PA''.
6. Page 35392 contains an incorrect citation. In the last
paragraph of the first column, ``40 CFR 261.10'' should read ``40 CFR
260.10''.
7. Page 35392 contains an incorrect reference to industrial
furnaces. In the last paragraph of the first column, ``industrial
furnace'' should read ``scrap metal recovery oven or smelter''.
8. Page 35396 contains an incorrect citation. In the last sentence
of the second full paragraph of the first column, ``Sec. 761.30(t)''
should read ``Sec. 761.30(s)''.
9. Page 35396 contains an editing error. The last sentence of the
first full paragraph of the second column incorrectly states that the
definition of ``natural gas pipeline system'' in Sec. 761.3 excludes
end users. This sentence should read, ``As noted above, because end
users are not sellers or distributors of natural gas, they are not
subject to the requirements of Sec. 761.30(i).''
10. Page 35403 contains incorrect references to industrial
furnaces. In the third sentence of the first partial paragraph of the
first column, and in the first sentence of the first full paragraph of
the second column, ``an industrial furnace'' should read ``a scrap
metal recovery oven or smelter''.
11. Page 35404 contains an editing error. The sixth sentence of
the second full paragraph of the third column should read, ``Collect
condensate within 72 hours of the final transmission of natural gas
through the part of the system to be abandoned or removed. Collect wipe
samples after the last transmission of gas through the pipe or during
removal from the location it was used to transport natural gas.''
12. Page 35405 contains an incorrect reference to industrial
furnaces. In the second sentence of the fourth full paragraph of the
first column, ``an industrial furnace'' should read ``a smelter''.
13. Page 35405 contains an incorrect citation. In the last
sentence of the last partial paragraph of the second column,
``Sec. 761.60(b)(6)(iv)'' should read ``Sec. 761.60(b)(8)''.
14. Page 35409 contains an editing error. In the first sentence of
the first full paragraph in the first column, delete the word ``in-
situ''.
15. Page 35409 contains an incorrect citation. In the second
paragraph of the second column, ``(see Sec. 761.61(a)(5)(i)(B)(3)(iv)
of the regulatory text)'' should read ``(see
Sec. 761.61(a)(5)(i)(B)(2)(iv) of the regulatory text)''.
16. On page 35409, a citation was inadvertently omitted. In the
second paragraph of the second column, the last sentence should read,
``In addition, the subpart J recordkeeping requirements and the subpart
K notification and manifesting requirements do not apply to off-site
disposal of PCB remediation waste at < 50="" ppm.''="" 17.="" page="" 35410="" contains="" an="" incorrect="" citation.="" in="" the="" fourth="" sentence="" of="" the="" third="" full="" paragraph="" of="" the="" third="" column,="" ``sec.="" 761.65(c)(10)''="" should="" read="" ``sec.="" 761.65(c)(9)''.="" 18.="" page="" 35411="" contains="" an="" incorrect="" citation.="" in="" the="" last="" partial="" paragraph="" of="" the="" first="" column,="" ``(see="" sec.="" 761.62(b)(1)(iii))''="" should="" read="" ``(see="" sec.="" 761.62(b)(1)(ii))''.="" 19.="" on="" page="" 35411="" a="" citation="" was="" inadvertently="" omitted.="" the="" second="" full="" paragraph="" of="" the="" third="" column="" should="" read,="" ``also,="" part="" 761,="" subparts="" c,="" j="" and="" k,="" do="" not="" apply="" to="" pcb="" bulk="" product="" waste="" disposed="" of="" under="" sec.="" 761.62(b).''="" 20.="" page="" 35412="" contains="" incorrect="" references.="" in="" the="" second="" and="" third="" full="" paragraphs="" of="" the="" first="" column,="" ``subpart="" o''="" should="" read="" ``subpart="" r''.="" 21.="" on="" page="" 35413,="" a="" spelling="" error="" occurs.="" in="" the="" second="" sentence="" of="" the="" second="" full="" paragraph="" of="" the="" first="" column,="" ``(e.g.,="" chopping,="" stripping="" insulation,="" and="" scrapping)''="" should="" read="" ``(e.g.,="" chopping,="" stripping="" insulation,="" and="" scraping)''.="" 22.="" as="" a="" technical="" clarification,="" on="" page="" 35413,="" after="" the="" third="" sentence="" in="" the="" first="" full="" paragraph="" of="" the="" third="" column,="" add,="" ``epa="" also="" changed="" the="" term="" `industrial="" furnaces',="" used="" in="" the="" proposed="" rule,="" to="" `scrap="" metal="" recovery="" ovens="" and="" smelters'.''="" 23.="" on="" page="" 35414,="" the="" preamble="" makes="" a="" statement="" that="" is="" inconsistent="" with="" the="" corresponding="" regulatory="" text.="" in="" the="" last="" partial="" paragraph="" of="" the="" second="" column,="" the="" last="" three="" sentences="" should="" be="" replaced="" with="" the="" following:="" ``since="" rcra="" interim="" status="" facilities="" have="" financial="" assurance="" and="" are="" subject="" to="" corrective="" action,="" sec.="" 761.65(b)(2)="" allows="" alternate="" storage="" of="" pcbs="" at="" these="" facilities="" as="" long="" as="" the="" containment="" requirements="" of="" 40="" cfr="" 264.175="" are="" met="" and="" spills="" of="" pcbs="" are="" cleaned="" up="" in="" accordance="" with="" the="" pcb="" spill="" cleanup="" policy.''="" 24.="" page="" 35418="" contains="" an="" incorrect="" number.="" in="" the="" second="" sentence="" of="" the="" second="" full="" paragraph="" of="" the="" second="" column,="" the="" phrase="" ``concentrations=""> 500 ppm'' should read concentrations
`` 50 ppm''.
25. Page 35418 contains incorrect references to industrial
furnaces. In the second sentence of the second full paragraph of the
second column, and in the fifth sentence of the second full paragraph
of the second column, ``an industrial furnace'' should read ``a
smelter''.
26. Page 35420 contains an editing error. The last sentence of the
second full paragraph of the third column should read, ``Today's rule
implements the Sierra Club decision by amending Sec. 761.93 to prohibit
import of any PCBs or PCB Items.''
B. Technical Amendments to the Codified Text
This rule also amends specified provisions of the codified text of
the Disposal Amendments. Most of these amendments correct typographical
errors and errors in citations, change incorrect references to
industrial furnaces, and effect minor punctuation changes that make the
rule easier to read. Changes that are not self-explanatory are
described in this section.
This rule removes the definition of ``emergency situation'' from
Sec. 761.3. This definition supported portions of
Sec. 761.30(a)(1)(iii), which authorized, until 1990, the otherwise-
prohibited installation of a PCB Transformer in or near a commercial
building in an ``emergency situation''. The Disposal Amendments removed
the portions of
[[Page 33758]]
Sec. 761.30(a)(1)(iii) that authorized these emergency installations
because they expired in 1990. However, the agency neglected to remove
the supporting definition of ``emergency situation''.
This rule removes and reserves Sec. 761.30(j)(3). That section
prescribes manifesting requirements for certain research and disposal
wastes. Those requirements conflict with the generally-applicable
requirements for manifesting and disposing of research and development
waste at Sec. Sec. 761.65(i) and 761.64(b)(2).
EPA included Sec. 761.50(b)(3) in the Disposal Amendments to
clarify the status of PCB waste that was placed in a land disposal
facility, spilled, or otherwise released into the environment prior to
the effective date of the regulations implementing TSCA section 6(e).
The Disposal Amendments state that sites containing PCB waste at
concentrations 50 ppm that was placed in a land disposal
facility, spilled, or otherwise released into the environment prior to
April 18, 1978 (the effective date of the first PCB disposal rules),
are presumed not to present an unreasonable risk of injury to health or
the environment from exposure to PCBs at the site. This rule extends
the presumption to include PCB waste at as-found concentrations
50 ppm that was placed in a land disposal facility,
spilled, or otherwise released into the environment on or after April
18, 1978, but prior to July 2, 1979, where the concentration of the
spill or release was 50 ppm but < 500="" ppm.="" between="" these="" two="" dates,="" disposal="" of="" pcbs="" was="" regulated,="" but="" only="" if="" the="" pcbs="" were="" at="" concentrations=""> 500 ppm.
This rule removes and reserves Sec. 761.60(a)(3)(i) because the
regulatory provisions it cites in 40 CFR part 268, specifying
requirements for disposal of PCB liquids under RCRA, have been removed
(see 62 FR 26022, May 12, 1997 (FRL-5816-5), and 63 FR 28556, see page
28622, May 26, 1998)(FRL-6010-5).
This rule removes the cross-reference in Sec. 761.60(b)(1)(i)(B)
to Sec. 761.60(a)(1). At the time of the proposed rule,
Sec. 761.60(a)(1) required disposal of certain PCB liquids in an
incinerator. The final rule revised Sec. 761.60, changing the content
of paragraph (a)(1), but did not include the necessary conforming
change to Sec. 761.60(b)(1)(i)(B). This rule corrects that error by
replacing the reference to paragraph (a)(1) in Sec. 761.60(b)(1)(i)(B)
with a specific reference to incineration.
Section 761.60(b)(4), pertaining to PCB-Contaminated Electrical
Equipment, and Sec. 761.60(b)(6)(ii), pertaining to PCB-Contaminated
Articles, specify slightly different disposal requirements for what are
essentially the same materials. This rule amends Sec. 761.60(b)(4) by
providing that, with the exception of PCB-Contaminated Large
Capacitors, PCB-Contaminated Electrical Equipment must be disposed of
in the same manner as a PCB-Contaminated Article under
Sec. 761.60(b)(6)(ii). The requirements for this equipment have been
consolidated at Sec. 761.60(b)(6)(ii).
Section 761.60(b)(6)(ii), as amended by this rule, includes a
provision to exclude this equipment from the manifesting requirements
of subpart K. This provision was inadvertently omitted from the final
rule. Prior to promulgation of the Disposal Amendments, PCB-
Contaminated Electrical Equipment was not regulated for disposal and
thus was not subject to manifesting. While the Disposal Amendments
imposed certain requirements on disposal of this equipment, it was
EPA's intent that the manifesting requirements not apply. This intent
was stated at the public meeting on the proposed rule held June 6-7,
1995. (See transcript, Informal Public Hearing, Disposal of
Polychlorinated Biphenyls, Part One, June 6, 1995, p. 219.) In
addition, this intent is reflected in the Response to Comments Document
on the proposed rule, which states that the manifesting requirement for
drained PCB-Contaminated Electrical Equipment was deleted from the
final rule. (See Response to Comments Document on the Proposed Rule --
Disposal of Polychlorinated Biphenyls, OPPTS Docket #66009A, May 1998,
p. 58). Section 761.60(b)(6)(ii)(C) corrects the inadvertent omission
of the manifesting exclusion.
C. Procedural Amendments
As noted above, this rule contains procedural amendments to
Sec. 761.61(c) and Sec. 761.79(h) to allow the Director of the National
Program Chemicals Division to issue risk-based approvals for activities
occurring in more than one EPA Region. Those sections of the Disposal
Amendments now require a person wishing to sample, clean up, store, or
dispose of PCB remediation waste, or to decontaminate PCBs or sample
decontaminated material, in a manner not specifically provided for in
the Disposal Amendments, to apply for a risk-based approval from the
EPA Regional Administrator. This rule amends those sections to provide
that requests for approval of these activities should be submitted to
the EPA Regional Administrator for activities occurring in a single EPA
Region, and to the Director, National Program Chemicals Division, for
activities occurring in more than one EPA Region.
IV. What Actions Were Required by The Various Regulatory Assessment
Mandates?
This rule implements technical and procedural amendments to 40 CFR
part 761. Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), this action is not a
``significant regulatory action'' and is therefore not subject to
review by the Office of Management and Budget. In addition, this action
does not impose any enforceable duty, contain any unfunded mandate, or
impose any significant or unique impact on small governments as
described in the Unfunded Mandates Reform Act of 1995 (Pub.L. 104-4).
This rule does not involve special consideration of environmental
justice-related issues as required by Executive Order 12898, entitled
Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations (59 FR 7629, February 16, 1994).
Because this action is not subject to notice-and-comment requirements
under the Administrative Procedure Act or any other statute, it is not
subject to the regulatory flexibility provisions of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). This rule also is not subject
to Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997) because EPA interprets E.O. 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This rule is not subject to E.O.
13045 because it does not establish any environmental standards
intended to mitigate health or safety risks. This rule does not involve
technical standards and therefore is not subject to section 12(d) of
the National Technology Transfer and Advancement Act of 1995, 15 U.S.C.
272 note. Finally, this rule is not subject to the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq., because it does not impose any monitoring,
reporting, or recordkeeping requirements. EPA's compliance with the
statutes and Executive Orders for the underlying Disposal Amendments
rule is discussed in the June 29, 1998, Federal Register notice.
[[Page 33759]]
V. Are There Any Impacts on Tribal, State and Local Governments?
A. Executive Order 12875
Under Executive Order 12875, entitled Enhancing Intergovernmental
Partnerships (58 FR 58093, October 28, 1993), EPA may not issue a
regulation that is not required by statute and that creates a mandate
upon a State, local or tribal government, unless the Federal government
provides the funds necessary to pay the direct compliance costs
incurred by those governments, or EPA consults with those governments.
If EPA complies by consulting, Executive Order 12875 requires EPA to
provide to the Office of Management and Budget a description of the
extent of EPA's prior consultation with representatives of affected
State, local and tribal governments, the nature of their concerns,
copies of any written communications from the governments, and a
statement supporting the need to issue the regulation. In addition,
Executive Order 12875 requires EPA to develop an effective process
permitting elected officials and other representatives of State, local
and tribal governments ``to provide meaningful and timely input in the
development of regulatory proposals containing significant unfunded
mandates.''
Today's rule does not create a Federal mandate on State, local or
tribal governments. The rule does not impose any enforceable duties on
these entities. Accordingly, the requirements of section 1(a) of
Executive Order 12875 do not apply to this rule.
B. Executive Order 13084
Under Executive Order 13084, entitled Consultation and
Coordination with Indian Tribal Governments (63 FR 27655, May 19,
1998), EPA may not issue a regulation that is not required by statute,
that significantly or uniquely affects the communities of Indian tribal
governments, and that imposes substantial direct compliance costs on
those communities, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by the tribal
governments, or EPA consults with those governments. If EPA complies by
consulting, Executive Order 13084 requires EPA to provide to the Office
of Management and Budget, in a separately identified section of the
preamble to the rule, a description of the extent of EPA's prior
consultation with representatives of affected tribal governments, a
summary of the nature of their concerns, and a statement supporting the
need to issue the regulation. In addition, Executive Order 13084
requires EPA to develop an effective process permitting elected
officials and other representatives of Indian tribal governments ``to
provide meaningful and timely input in the development of regulatory
policies on matters that significantly or uniquely affect their
communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments. This action does not involve
or impose any requirements that affect Indian Tribes. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
VI. Submission to Congress and the General Accounting Office
The Congressional Review Act (CRA), 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. Section 808 allows the issuing agency to
make a rule effective sooner than otherwise provided by the CRA if the
agency makes a good cause finding that notice and public procedure is
impracticable, unnecessary, or contrary to the public interest. This
determination must be supported by a brief statement. 5 U.S.C. 808(2).
As stated previously, EPA has made such a good cause finding, including
the reasons therefor, and established an effective date of June 24,
1999. EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
this rule in the Federal Register. This rule effects technical and
procedural amendments to 40 CFR part 761 and is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 761
Environmental protection, Hazardous substances, Labeling,
Polychlorinated biphenyls (PCBs), Reporting and recordkeeping
requirements
Dated: June 15, 1999.
Susan H. Wayland,
Acting Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
Therefore, 40 CFR Part 761 is amended as follows:
PART 761--[AMENDED]
1. The authority citation for part 761 continues to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2611, 2614, and 2616.
Sec. 761.1 [Amended]
2. In Sec. 761.1(b)(3), revise `` 10/100
cm2'' to read `` 10 g/100
cm2''.
3. Amend Sec. 761.2(a)(3) by revising the last sentence to read as
follows:
Sec. 761.2 PCB concentration assumptions for use.
(a) * * *
(3) * * * If the date of manufacture and the type of dielectric
fluid are unknown, any person must assume the transformer to be a PCB
Transformer.
* * * * *
4. Amend Sec. 761.3 as follows:
a. Remove the definition of ``emergency situation''.
b. Revise the definition of ``ASTM'' and in the definition of
``PCB remediation waste'' revise the first sentence of the introductory
text and revise paragraph (3) to read as follows:
Sec. 761.3 Definitions.
* * * * *
ASTM means American Society for Testing and Materials, 100 Barr
Harbor Drive, West Conshohocken, PA 19428-2959.
* * * * *
PCB remediation waste means waste containing PCBs as a result of a
spill, release, or other unauthorized disposal, at the following
concentrations: Materials disposed of prior to April 18, 1978, that are
currently at concentrations 50 ppm PCBs, regardless of the
concentration of the original spill; materials which are currently at
any volume or concentration where the original source was
500 ppm PCBs beginning on April 18, 1978, or 50 ppm PCBs
beginning on July 2, 1979; and materials which are currently at any
concentration if the PCBs are spilled or released from a source not
authorized for use under this part. ***
* * * * *
(3) Buildings and other man-made structures (such as concrete
floors, wood floors, or walls contaminated from a leaking PCB or PCB-
Contaminated Transformer), porous surfaces, and non-porous surfaces.
* * * * *
5. Amend Sec. 761.19(b) by revising the last sentence to read as
follows:
Sec. 761.19 References.
* * * * *
(b) * * * Copies of the incorporated material may be obtained from
the American Society for Testing and Materials (ASTM), 100 Barr Harbor
[[Page 33760]]
Drive, West Conshohocken, PA 19428-2959.
* * * * *
Sec. 761.20 [Amended]
6. In Sec. 761.20(c)(2)(ii), correct the reference to
``Sec. 261.10 of this chapter'' to read ``Sec. 260.10 of this
chapter''.
7. Amend Sec. 761.30 as follows:
a. Revise paragraph (a)(1)(xii)(J) and the first sentence of
paragraph (i)(4).
b. In the last sentence of paragraph (i)(1)(iii)(D), revise
``delegate'' to read ``defer''.
c. In the first sentence of paragraph (i)(5), revise the reference
``Sec. 761.60(a)'' to read ``Sec. 761.61(a)(5)(iv)''.
d. Remove and reserve paragraph (j)(3).
e. In the introductory language to paragraph (p)(1), revise ``> 10
g/100 cm2'' to read `` 50 ppm''.
The revised portions read as follows:
Sec. 761.30 Authorizations.
(a) * * *
(1) * * *
(xii) * * *
(J) Records of transfer of ownership in compliance with
Sec. 761.180(a)(2)(ix).
* * * * *
(i) * * *
(4) Any person characterizing PCB contamination in natural gas
pipe or natural gas pipeline systems must do so by analyzing organic
liquids collected at existing condensate collection points in the pipe
or pipeline system. The level of PCB contamination found at a
collection point is assumed to extend to the next collection point
downstream. Any person characterizing multi-phasic liquids must do so
in accordance with Sec. 761.1(b)(4).
* * * * *
8. Section 761.40 is amended in paragraph (b), by revising
``1979'' to read ``1978'', and by revising paragraph (l) to read as
follows:
Sec. 761.40 Marking requirements.
* * * * *
(l)(1) All voltage regulators which contain 1.36 kilograms (3
lbs.) or more of dielectric fluid with a PCB concentration of
500 ppm must be marked individually with the ML
mark as described in Sec. 761.45(a).
(2) Locations of voltage regulators which contain 1.36 kilograms
(3 lbs.) or more of dielectric fluid with a PCB concentration of
500 ppm shall be marked as follows: The vault door,
machinery room door, fence, hallway, or means of access, other than
grates or manhole covers, must be marked with the ML mark as
described in Sec. 761.45(a).
9. Amend Sec. 761.50 by revising the introductory text of
paragraph (b)(3)(i), the first sentence of paragraph (b)(3)(i)(B),
paragraph (b)(3)(ii) introductory text, and in paragraph (b)(8) by
revising the reference ``Sec. 761.61(a)(5)(iii)'' to read
``Sec. 761.61''.
The revised portions read as follows:
Sec. 761.50 Applicability.
* * * * *
(b) * * *
(3) * * *
(i) Any person responsible for PCB waste at as-found
concentrations 50 ppm that was either placed in a land
disposal facility, spilled, or otherwise released into the environment
prior to April 18, 1978, regardless of the concentration of the spill
or release; or placed in a land disposal facility, spilled, or
otherwise released into the environment on or after April 18, 1978, but
prior to July 2, 1979, where the concentration of the spill or release
was 50 ppm but < 500="" ppm,="" must="" dispose="" of="" the="" waste="" as="" follows:="" *="" *="" *="" *="" *="" (b)="" unless="" directed="" by="" the="" epa="" regional="" administrator="" to="" dispose="" of="" pcb="" waste="" in="" accordance="" with="" paragraph="" (b)(3)(i)(a)="" of="" this="" section,="" any="" person="" responsible="" for="" pcb="" waste="" at="" as-found="" concentrations=""> 50 ppm that was either placed in a land disposal facility,
spilled, or otherwise released into the environment prior to April 18,
1978, regardless of the concentration of the spill or release; or
placed in a land disposal facility, spilled, or otherwise released into
the environment on or after April 18, 1978, but prior to July 2, 1979,
where the concentration of the spill or release was 50 ppm
but < 500="" ppm,="" who="" unilaterally="" decides="" to="" dispose="" of="" that="" waste="" (for="" example,="" to="" obtain="" insurance="" or="" to="" sell="" the="" property),="" is="" not="" required="" to="" clean="" up="" in="" accordance="" with="" sec.="" 761.61.="" *="" *="" *="" (ii)="" any="" person="" responsible="" for="" pcb="" waste="" at="" as-found="" concentrations=""> 50 ppm that was either placed in a land
disposal facility, spilled, or otherwise released into the environment
on or after April 18, 1978, but prior to July 2, 1979, where the
concentration of the spill or release was 500 ppm; or
placed in a land disposal facility, spilled, or otherwise released into
the environment on or after July 2, 1979, where the concentration of
the spill or release was 50 ppm, must dispose of it in
accordance with either of the following:
* * * * *
Sec. 761.60 [Amended]
10. Amend Sec. 761.60 as follows:
a. Remove and reserve paragraph (a)(3)(i).
b. Revise the second sentence of paragraph (b)(1)(i)(B).
c. In paragraph (b)(3)(i)(C), revise the phrase ``an industrial
furnace'' to read ``a scrap metal recovery oven or smelter''.
d. Revise paragraph (b)(4).
e. Amend paragraphs (b)(5)(i)(B) and (b)(5)(ii)(A)(1) by removing
the phrase ``in accordance with subpart M of this part''.
f. Amend paragraph (b)(5)(i)(C)(2) by adding ``or more'' after,
``The pipe is filled to 50 percent''.
g. In paragraph (b)(5)(i)(D), revise ``Sec. 761.62(c)'' to read
``Sec. 761.61(c)''.
h. Revise the last sentence of paragraph (b)(5)(iii)(A).
i. In paragraph (b)(5)(ii)(A), revise the phrase, ``scrap metal
recovery oven and smelter'', to read, ``a scrap metal recovery oven or
smelter''.
j. Redesignate paragraphs (b)(6)(ii) introductory text,
(b)(6)(ii)(A), (b)(6)(ii)(B), (b)(6)(ii)(C), and (b)(6)(ii)(D) as
paragraphs (b)(6)(ii)(A) introductory text, and paragraphs
(b)(6)(ii)(A)(1) through (b)(6)(ii)(A)(4), respectively.
k. In redesignated paragraph (b)(6)(ii)(A)(3), revise the phrase
``an industrial furnace'' to read ``a scrap metal recovery oven or
smelter''.
l. Revise redesignated paragraph (b)(6)(ii)(A) introductory text,
add paragraphs (b)(6)(ii)(B) and (b)(6)(ii)(C), remove paragraph
(b)(6)(iv) and add paragraph (b)(8), to read as follows:
Sec. 761.60 Disposal requirements.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(B) * * * Any person disposing of PCB liquids that are removed
from the transformer (including the dielectric fluid and all solvents
used as a flush), shall do so in an incinerator that complies with
Sec. 761.70 of this part, or shall decontaminate them in accordance
with Sec. 761.79. * * *
* * * * *
(4) PCB-Contaminated Electrical Equipment. Any person disposing of
PCB-Contaminated Electrical Equipment, except capacitors, shall do so
in accordance with paragraph (b)(6)(ii)(A) of this section. Any person
disposing of Large Capacitors that contain 50 ppm but < 500="" ppm="" pcbs="" shall="" do="" so="" in="" a="" disposal="" facility="" approved="" under="" this="" part.="" (5)="" natural="" gas="" pipeline="" systems="" containing="" pcbs.="" *="" *="" *="" (iii)="" characterization="" of="" natural="" gas="" pipeline="" systems="" by="" pcb="" concentration="" in="" condensate.="" *="" *="" *="" (a)="" *="" *="" *="" collect="" condensate="" within="" 72="" hours="" of="" the="" final="" transmission="" of="" [[page="" 33761]]="" natural="" gas="" through="" the="" part="" of="" the="" system="" to="" be="" abandoned="" or="" removed.="" collect="" wipe="" samples="" after="" the="" last="" transmission="" of="" gas="" through="" the="" pipe="" or="" during="" removal="" from="" the="" location="" it="" was="" used="" to="" transport="" natural="" gas.="" *="" *="" *="" *="" *="" (6)="" *="" *="" *="" (ii)="" *="" *="" *="" (a)="" except="" as="" specifically="" provided="" in="" paragraphs="" (b)(1)="" through="" (b)(5)="" of="" this="" section,="" any="" person="" disposing="" of="" a="" pcb-contaminated="" article="" must="" do="" so="" by="" removing="" all="" free-flowing="" liquid="" from="" the="" article,="" disposing="" of="" the="" liquid="" in="" accordance="" with="" paragraph="" (a)="" of="" this="" section,="" and="" disposing="" of="" the="" pcb-contaminated="" article="" with="" no="" free-flowing="" liquid="" by="" one="" of="" the="" following="" methods:="" *="" *="" *="" *="" *="" (b)="" storage="" for="" disposal="" of="" pcb-contaminated="" articles="" from="" which="" all="" free-flowing="" liquids="" have="" been="" removed="" is="" not="" regulated="" under="" subpart="" d="" of="" this="" part.="" (c)="" requirements="" in="" subparts="" j="" and="" k="" of="" this="" part="" do="" not="" apply="" to="" pcb-contaminated="" articles="" from="" which="" all="" free-flowing="" liquids="" have="" been="" removed.="" *="" *="" *="" *="" *="" (8)="" persons="" disposing="" of="" pcb="" articles="" must="" wear="" or="" use="" protective="" clothing="" or="" equipment="" to="" protect="" against="" dermal="" contact="" with="" or="" inhalation="" of="" pcbs="" or="" materials="" containing="" pcbs.="" 11.="" amend="" sec.="" 761.61="" as="" follows:="" a.="" in="" paragraph="" (a)(5)(ii)(b)(1),="" revise="" ``paragraph="" (a)(5)(i)(b)(3)(ii)''="" to="" read="" ``paragraph="" (a)(5)(i)(b)(2)(ii)''.="" b.="" in="" paragraph="" (a)(5)(ii)(b)(2)="" revise="" ``paragraph="" (a)(5)(i)(b)(3)(iii)''="" to="" read="" ``paragraph="" (a)(5)(i)(b)(2)(iii)''.="" c.="" revise="" the="" second="" sentence="" of="" paragraph="" (a)(3)(ii),="" paragraphs="" (a)(5)(i)(a)="" introcductory="" text,="" (a)(5)(i)(b)(2)(i),="" paragraph="" (a)(5)(v)(a),="" and="" the="" first="" sentence="" of="" paragraph="" (c)(1)="" to="" read="" as="" follows:="" sec.="" 761.61="" pcb="" remediation="" waste.="" *="" *="" *="" *="" *="" (a)="" *="" *="" *="" (3)="" *="" *="" *="" (ii)="" ***="" if="" the="" epa="" regional="" administrator="" does="" not="" respond="" within="" 30="" calendar="" days="" of="" receiving="" the="" notice,="" the="" person="" submitting="" the="" notification="" may="" assume="" that="" it="" is="" complete="" and="" acceptable="" and="" proceed="" with="" the="" cleanup="" according="" to="" the="" information="" the="" person="" provided="" to="" the="" epa="" regional="" administrator.="" ***="" *="" *="" *="" *="" *="" (5)="" *="" *="" *="" (i)="" *="" *="" *="" (a)="" any="" person="" cleaning="" up="" bulk="" pcb="" remediation="" waste="" on-site="" using="" a="" soil="" washing="" process="" may="" do="" so="" without="" epa="" approval,="" subject="" to="" all="" of="" the="" following:="" *="" *="" *="" *="" *="" (b)="" *="" *="" *="" (2)="" *="" *="" *="" (i)="" unless="" sampled="" and="" analyzed="" for="" disposal="" according="" to="" the="" procedures="" set="" out="" in="" sec.="" sec.="" 761.283,="" 761.286,="" and="" 761.292,="" the="" bulk="" pcb="" remediation="" waste="" shall="" be="" assumed="" to="" contain=""> 50 ppm
PCBs.
* * * * *
(v) * * *
(A) Non-liquid cleaning materials and personal protective
equipment waste at any concentration, including non-porous surfaces and
other non-liquid materials such as rags, gloves, booties, other
disposable personal protective equipment, and similar materials
resulting from cleanup activities shall be either decontaminated in
accordance with Sec. 761.79(b) or (c), or disposed of in one of the
following facilities, without regard to the requirements of subparts J
and K of this part:
(1) A facility permitted, licensed, or registered by a State to
manage municipal solid waste subject to part 258 of this chapter.
(2) A facility permitted, licensed, or registered by a State to
manage non-municipal non-hazardous waste subject to Sec. Sec. 257.5
through 257.30 of this chapter, as applicable.
(3) A hazardous waste landfill permitted by EPA under section 3004
of RCRA, or by a State authorized under section 3006 of RCRA.
(4) A PCB disposal facility approved under this part.
* * * * *
(c) * * * (1) Any person wishing to sample, cleanup, or dispose of
PCB remediation waste in a manner other than prescribed in paragraphs
(a) or (b) of this section, or store PCB remediation waste in a manner
other than prescribed in Sec. 761.65, must apply in writing to the EPA
Regional Administrator in the Region where the sampling, cleanup,
disposal or storage site is located, for sampling, cleanup, disposal or
storage occurring in a single EPA Region; or to the Director of the
National Program Chemicals Division, for sampling, cleanup, disposal or
storage occurring in more than one EPA Region. * * *
* * * * *
Sec. 761.62 [Amended]
12. Amend Sec. 761.62 as follows:
a. In paragraph (b)(1)(ii), revise ``subpart O'', to read
``subpart R''.
b. In paragraph (b)(4)(i), revise `` 50 ppm'' to read
`` 50 ppm''.
c. In paragraph (b)(6), revise ``subparts C and K'' to read
``subparts C, J, and K''.
d. Revise the title of paragraph (c) to read, ``Risk-based
disposal approval.''
e. Paragraph (c) is further amended by removing the phrases
``disposal or storage'' and ``storage or disposal'' wherever they
appear and adding in place thereof, the phrase ``sampling, disposal, or
storage''.
Sec. 761.72 [Amended]
13. Amend Sec. 761.72 as follows:
a. In paragraph (c)(3), in the first sentence, revise the phrase,
``In lieu of the requirements in paragraphs (a) and (b) of this
section'', to read, ``In lieu of the requirements in paragraph (c)(1)
of this section''; and revise the phrase, ``the parameters and
conditions listed in paragraphs (a)(1) through (a)(8) and (b)(1)
through (b)(9) of this section'', to read, ``the parameters and
conditions listed in paragraph (a) or (b) of this section''.
b. Revise paragraph (a)(7) to read as follows:
Sec. 761.72 Scrap metal recovery ovens and smelters.
* * * * *
(a) * * *
(7) Emissions from the secondary chamber must be vented through an
exhaust gas stack in accordance with either:
(i) State or local air regulations or permits, or
(ii) The standards in paragraph (a)(8) of this section.
* * * * *
Sec. 761.79 [Amended]
14. Amend Sec. 761.79 as follows:
a. In paragraph (a)(5), amend ``(c)(8)'' to read ``(c)(6)''.
b. Amend paragraph (c)(2) introductory text by removing the
phrase, ``and used in storage areas''.
c. In paragraph (c)(5)(i), revise ``paragraphs (b), (c)(1) through
(c)(6), or (c)(8) of this section'' to read ``paragraphs (b), (c)(1)
through (c)(4), or (c)(6) of this section''.
d. In the last sentence of paragraph (c)(5)(iv), revise ``PODF''
to read ``solvent''.
e. In paragraph (c)(6)(i), revise ``an industrial furnace'' to
read ``a scrap metal recovery oven or smelter''.
f. In paragraph (c)(6)(ii), revise ``an industrial furnace'' to
read ``a smelter''.
g. Revise the first sentences of paragraphs (h)(1), (h)(2), and
(h)(3) to read as follows. The paragraph title is shown for the
convenience of the reader.
Sec. 761.79 Decontamination standards and procedures.
* * * * *
[[Page 33762]]
(h) Alternative decontamination or sampling approval. (1) Any
person wishing to decontaminate material described in paragraph (a) of
this section in a manner other than prescribed in paragraph (b) of this
section must apply in writing to the EPA Regional Administrator in the
Region where the activity would take place, for decontamination
activity occurring in a single EPA Region; or the Director of the
National Program Chemicals Division, for decontamination activity
occurring in more than one EPA Region. * * *
(2) Any person wishing to decontaminate material described in
paragraph (a) of this section using a self-implementing procedure other
than prescribed in paragraph (c) of this section must apply in writing
to the EPA Regional Administrator in the Region where the activity
would take place, for decontamination activity occurring in a single
EPA Region; or the Director of the National Program Chemicals Division,
for decontamination activity occurring in more than one EPA Region. * *
*
(3) Any person wishing to sample decontaminated material in a
manner other than prescribed in paragraph (f) of this section must
apply in writing to the EPA Regional Administrator in the Region where
the activity would take place, for decontamination activity occurring
in a single EPA Region; or the Director of the National Program
Chemicals Division, for decontamination activity occurring in more than
one EPA Region. * * *
* * * * *
Sec. 761.247 [Amended]
15. Amend Sec. 761.247 as follows:
a. Amend the heading by removing ``or pipeline section
abandonment''.
b. Amend paragraph (a)(3) by removing ``or pipeline section''.
c. In the fourth sentence of paragraph (b)(2)(ii)(B)(2), revise
``section'' to read ``length''.
d. Amend the introductory language to paragraph (c) by removing
``pipeline section or''.
e. Amend paragraph (c)(5)(iii) by removing ``pipeline section
or''.
f. Amend the second sentence of paragraph (d) by removing
``pipeline section or'' each time it appears.
Sec. 761.250 [Amended]
16. In Sec. 761.250(a)(2), revise ``Sec. 761.247(d)'' to read
``Sec. 761.247(c) and (d)''.
Sec. 761.347 [Amended]
17. In Sec. 761.347(c)(3)(i)(C), revise ``paragraph (c)(3)(iii) of
this section'' to read ``paragraph (c)(3)(i)(B) of this section''.
[FR Doc. 99-16098 Filed 6-23-99; 8:45 am]
BILLING CODE 6560-50-F
