Friday,

March
30,
2001
Part
II
Environmental
Protection
Agency
40
CFR
Part
761
Polychlorinated
Biphenyls
(PCB's);
Return
of
PCB
Waste
from
U.
S.
Territories
Outside
the
Customs
Territory
of
the
United
States;
Final
Rule
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Federal
Register
/
Vol.
66,
No.
62
/
Friday,
March
30,
2001
/
Rules
and
Regulations
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
761
[OPPTS–
66020A;
FRL–
6764–
9]

Polychlorinated
Biphenyls
(PCB's);
Return
of
PCB
Waste
from
U.
S.
Territories
Outside
the
Customs
Territory
of
the
United
States
AGENCY:
Environmental
Protection
Agency
(EPA).
ACTION:
Final
Rule.

SUMMARY:
EPA
is
amending
its
rules
in
order
to
clarify
that
PCB
waste
in
U.
S.
territories
and
possessions
outside
the
customs
territory
of
the
United
States
may
be
moved
to
the
customs
territory
of
the
United
States
for
proper
disposal.
This
rule
interprets
the
prohibition
on
the
manufacture
of
PCBs
at
Section
6(
e)
of
the
Toxic
Substances
Control
Act
(TSCA)
to
allow
the
movement
of
most
PCB
waste
among
any
States
of
the
United
States
for
the
purpose
of
disposal
because
such
movement
is
not
considered
``
import''
for
purposes
of
the
definition
of
``
manufacture''
as
that
term
is
used
in
TSCA
section
6(
e)(
3).
This
interpretation
will
allow
U.
S.
territories
and
possessions
which
fall
outside
of
the
definition
of
``
customs
territory
of
the
United
States''
to
dispose
of
their
PCB
waste
in
the
mainland
of
the
United
States
where
facilities
are
available
that
can
properly
dispose
of
PCB
waste.
Thus,
this
rule
would
ensure
that
a
safe
and
viable
mechanism
exists
for
the
protection
of
health
and
the
environment
for
those
citizens
in
areas
of
the
United
States
where
facilities
are
not
available
for
the
proper
management
and
disposal
of
PCB
waste.
Because
disposal
of
these
wastes
may
occur
only
at
approved
facilities,
no
unreasonable
risks
to
health
or
the
environment
on
the
mainland
United
States
should
be
created
by
this
rule.
DATES:
This
rule
shall
become
effective
April
30,
2001.
This
rule
shall
be
promulgated
for
purposes
of
judicial
review
at
1
p.
m.
eastern
standard
time
on
April
13,
2001
(see
40
CFR
23.5,
59
FR
7271).
FOR
FURTHER
INFORMATION
CONTACT:
For
general
information
contact:
Barbara
Cunningham,
Acting
Director,
Environmental
Assistance
Division,
Office
of
Pollution
Prevention
and
Toxics
(7408),
Environmental
Protection
Agency,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460;
telephone
numbers:
202–
554–
1404;
e­
mail
address:
TSCA­
Hotline@
epa.
gov.
For
technical
information
contact:
Peggy
Reynolds,
OPPT/
NPCD,
7404,
Environmental
Protection
Agency,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460;
telephone
number:
202–
260–
3965;
fax
number:
202–
260–
1724;
e­
mail
address:
reynolds.
peggy@
epa.
gov.

SUPPLEMENTARY
INFORMATION:

I.
General
Information
A.
Does
this
Action
Apply
to
Me?

You
may
be
potentially
affected
by
this
action
if
you
are
in
a
U.
S.
territory
or
possession
outside
of
the
customs
territory
of
the
United
States,
and
you
manufacture,
process,
distribute
in
commerce,
use,
or
dispose
of
PCBs.
Examples
of
such
territories
and
possessions
are
Guam,
American
Samoa,
the
Commonwealth
of
the
Northern
Mariana
Islands
(CNMI),
and
the
U.
S.
Virgin
Islands.
Potentially
affected
entities
may
include,
but
are
not
limited
to:

Types
of
entities
NAICS
codes
Examples
of
potentially
affected
entities
Crude
Petroleum
and
Natural
Gas
Extraction
211111
Facilities
that
own
electrical
equipment
containing
PCBs
Electric
Power
Generation;
Transmission
and
Distribution
2211
Facilities
that
own
electrical
equipment
containing
PCBs
Food
Manufacturing
311
Facilities
that
own
electrical
equipment
containing
PCBs
Petroleum
and
Coal
Products
Manufacturing
324
Facilities
that
own
electrical
equipment
containing
PCBs
Chemical
Manufacturing
325
Facilities
that
own
electrical
equipment
containing
PCBs
Primary
Metal
Manufacturing
331
Facilities
that
own
electrical
equipment
containing
PCBs
Waste
Treatment
and
Disposal
5622
Facilities
that
own
electrical
equipment
containing
PCBs.
Entities
that
process
and
distribute
PCB
waste
Materials
Recovery
Facilities
56292
Facilities
that
own
electrical
equipment
containing
PCBs.
Entities
that
process
and
distribute
PCB
waste
Public
Administration
92
Agencies
that
own
electrical
equipment
containing
PCBs
This
listing
is
not
intended
to
be
exhaustive,
but
rather
provides
a
guide
for
readers
regarding
entities
likely
to
be
affected
by
this
action.
Other
types
of
entities
not
listed
above
could
also
be
affected.
The
North
American
Industrial
Classification
System
(NAICS)
codes
have
been
provided
to
assist
you
and
others
in
determining
whether
or
not
this
action
might
apply
to
certain
entities.
To
determine
whether
you
or
your
business
may
be
affected
by
this
action,
you
should
carefully
examine
the
applicability
provisions
in
40
CFR
part
761.
If
you
have
any
questions
regarding
the
applicability
of
this
action
to
a
particular
entity,
consult
the
technical
person
listed
in
the
FOR
FURTHER
INFORMATION
CONTACT
section.
B.
How
Can
I
Get
Additional
Information,
Including
Copies
of
this
Document
and
Other
Related
Documents?

1.
Electronically.
You
may
obtain
electronic
copies
of
this
document
and
certain
other
related
documents
that
might
be
available
electronically,
from
the
EPA
Internet
Home
Page
at
http://
www.
epa.
gov.
To
access
this
document,
on
the
Home
Page
select
``
Laws
and
Regulations''
``
Regulations
and
Proposed
Rules,
''
and
then
look
up
the
entry
for
this
document
under
the
Federal
Register—
Environmental
Documents.
You
can
also
go
directly
to
the
Federal
Register
listings
at
http://
www.
epa.
gov/
fedrgstr/.
Information
about
the
Office
of
Prevention,
Pesticides
and
Toxic
Substances
(OPPTS)
and
OPPTS
related
programs
is
available
from
http://
www.
epa.
gov/
internet/
oppts/.
If
you
want
additional
information
about
EPA's
PCB
regulations
at
40
CFR
part
761,
go
to
http://
www.
epa.
gov/
pcb.
2.
In
person.
The
Agency
has
established
an
official
record
for
this
action
under
docket
control
number
OPPTS–
66020A.
The
official
record
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received
during
an
applicable
comment
period,
and
other
information
related
to
this
action,
including
any
information
claimed
as
confidential
business
information
(CBI).
This
official
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/
Vol.
66,
No.
62
/
Friday,
March
30,
2001
/
Rules
and
Regulations
record
includes
the
documents
that
are
physically
located
in
the
docket,
as
well
as
the
documents
that
are
referenced
in
those
documents.
The
public
version
of
the
official
record
does
not
include
any
information
claimed
as
CBI.
The
public
version
of
the
official
record,
which
includes
printed,
paper
versions
of
any
electronic
comments
submitted
during
an
applicable
comment
period,
is
available
for
inspection
in
the
TSCA
Nonconfidential
Information
Center,
Northeast
Mall,
Rm.
B–
607,
Waterside
Mall,
401
M
St.,
SW.,
Washington,
DC.
The
Center
is
open
from
12
noon
to
4
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
of
the
Center
is
(202)
260–
7099.

II.
Background
A.
What
Action
is
the
Agency
Taking?

EPA
is
amending
the
disposal
regulations
at
40
CFR
761.99
to
allow
certain
PCB
waste
located
anywhere
in
the
United
States,
including
the
territories
and
possessions
of
the
United
States
that
are
not
inside
the
customs
territory
of
the
United
States
(hereafter
``
territories
and
possessions''),
to
be
moved
to
any
area
within
the
United
States
for
disposal.
For
purposes
of
the
ban
on
manufacturing
PCBs
under
TSCA
section
6(
e)(
3),
this
rule
clarifies
that
such
movement
is
not
considered
``
import.
''

B.
What
is
the
Agency's
Authority
for
Taking
this
Action?

EPA
is
taking
this
action
to
clarify
its
interpretation
of
the
TSCA
provisions
relating
to
the
manufacture
of
PCBs
as
an
exercise
of
the
Agency's
inherent
authority
to
issue
regulations
interpreting
the
statutes
it
administers.
As
a
result,
the
Agency
has
not
made
a
formal
finding
of
``
no
unreasonable
risk''
for
this
regulation
as
would
be
required
for
a
regulation
that
is
issued
under
section
6(
e)
of
TSCA.
This
regulation
codifies
EPA's
interpretation
of
an
undefined
term,
``
import,
''
in
the
definition
of
``
manufacture''
under
section
3(
7)
of
TSCA,
for
purposes
of
section
6(
e)(
3)
of
TSCA.
EPA's
definition
of
the
term
``
import''
for
all
other
purposes
under
TSCA
is
not
affected.

C.
Why
is
the
Agency
Taking
This
Action?

Under
section
6(
e)
of
the
Toxic
Substances
Control
Act
(TSCA),
15
U.
S.
C.
2605(
e),
and
implementing
regulations
at
40
CFR
part
761,
the
manufacture,
processing,
and
distribution
in
commerce
of
PCBs
are
banned
unless
EPA
issues
a
regulatory
exemption
to
the
ban.
The
ban
on
manufacture
of
PCBs
was
designed
to
prevent
the
creation
or
introduction
to
the
United
States
of
new
PCBs,
and
it
has
been
largely
successful.
Use
of
PCBs
is
banned
except
in
a
totally
enclosed
manner
or
as
authorized
by
rule
based
on
a
finding
that
the
use
will
not
pose
an
unreasonable
risk
to
human
health
or
the
environment.
Disposal
of
PCBs
is
strictly
controlled
to
minimize
release
to
the
environment.
By
enacting
TSCA
section
6(
e),
Congress
established
a
presumption
that
PCBs
pose
an
unreasonable
risk
of
injury
to
health
and
the
environment.
See,
Central
and
Southwest
Services,
et
al.
v.
EPA,
220
F.
3d
683,
688
(5th
Cir.
2000).
Before
the
statutory
ban
was
enacted
in
1976,
PCBs
were
widely
used
in
industrial
applications,
particularly
as
insulating
fluids
in
electrical
equipment.
Utilities
and
other
industries
lawfully
manufactured,
sold,
and
used
items
such
as
PCB
electrical
equipment
and
hydraulic
or
heat
transfer
equipment.
After
TSCA's
general
bans
on
manufacture,
processing,
distribution
in
commerce,
and
use
of
such
items
went
into
effect,
EPA
authorized
the
continued
use
of
much
of
this
equipment
subject
to
conditions
that
protect
against
an
unreasonable
risk
to
health
or
the
environment
from
the
PCBs
in
the
equipment.
As
these
items
reach
the
end
of
their
useful
lives,
the
owners
are
responsible
for
disposing
of
them
following
the
stringent
requirements
of
40
CFR
part
761.
Any
PCBs
that
are
released
from
the
equipment
also
must
be
disposed
of
following
these
requirements.
PCBs
and
PCB
waste
in
the
territories
and
possessions
pose
an
especially
great
environmental
threat.
The
territories
and
possessions
have
no
permitted
commercial
PCB
disposal
facilities,
so
PCB
waste
is
accumulated
in
long­
term
storage.
Many
of
the
territories
and
possessions
are
subject
to
frequent
typhoons
and
earthquakes,
which
can
severely
damage
storage
areas
and
other
buildings.
PCBs
and
PCB
waste
in
storage
in
these
areas,
therefore,
may
present
a
significantly
greater
risk
to
human
health
and
the
environment
than
PCBs
stored
in
the
mainland
United
States
(Ref.
8).
Because
most
of
the
population
of
the
territories
and
possessions
tend
to
be
made
up
of
minority
or
low­
income
communities,
these
risks
present
important
environmental
justice
concerns.
EPA
has
a
strong
commitment
to
ensuring
the
protection
of
these
communities
by
mitigating
their
risk
of
exposure
to
PCBs
to
the
greatest
extent
possible
under
the
law.
For
the
reasons
mentioned
above
and
as
discussed
more
fully
in
the
preamble
to
the
proposed
rule
(65
FR
65656–
65658),
EPA
proposed
to
amend
its
regulations
to
allow
the
movement
of
PCB
waste
for
disposal
among
any
States
of
the
United
States,
as
defined
in
TSCA
sections
3(
13)
and
3(
14).
This
movement
would
be
allowed
regardless
of
whether
the
waste
enters
or
leaves
the
customs
territory
of
the
United
States,
provided
that
the
PCBs
or
the
PCB
waste
were
present
in
the
United
States
on
January
1,
1979,
when
the
ban
on
manufacturing
took
effect,
and
have
remained
within
the
United
States
since
then.
EPA
does
not
consider
these
movements
to
be
imports
subject
to
the
ban
on
manufacturing
under
TSCA
sections
3(
7)
and
6(
e)(
3).

III.
Summary
of
the
Final
Action
In
this
action
EPA
is
finalizing
the
rule
as
proposed.

A.
What
Comments
Supported
the
Proposed
Rule?
The
Agency
received
13
sets
of
comments
from
individuals
in
the
environmental
services
and
other
U.
S.
industry,
the
U.
S.
Congress,
and
the
Department
of
Defense,
as
well
as
representatives
of
some
of
the
U.
S.
territories,
and
an
environmental
group.
With
one
exception,
all
of
the
comments
were
in
favor
of
the
proposed
action
for
the
reasons
that
were
cited
in
the
preamble
to
the
proposed
rule
(65
FR
65656–
65658).
In
addition,
many
of
the
comments
provide
examples
of
situations
in
the
U.
S.
territories
which
exist
as
a
result
of
the
previous
interpretation
of
the
statute.
(The
following
discussions
include
a
parenthetical
reference
to
the
docket
number
that
was
assigned
by
EPA
to
the
comment.)
Several
comments
cited
the
burden
that
PCB
waste
cleanup
activities
create
for
inhabitants
of
U.
S.
territories
that
are
not
located
within
the
customs
territory
of
the
United
States.
One
commenter
(C1–
007)
stated
that
millions
of
dollars
are
spent
annually
by
the
U.
S.
armed
forces
to
clean
up
and
remediate
formerly
used
military
dump
sites
which
existed
during
World
War
II.
PCBs
and
other
contaminants
(e.
g.,
mustard
gas
and
trichloroethylene
(TCE))
that
were
buried
on
Guam
are
evident
in
the
drinking
water
which
comes
from
the
island's
sole
source
aquifer.
In
addition,
efforts
are
currently
underway
to
clean
up
PCBs
from
an
old
military
power
plant
located
in
the
village
of
Mong
Mong,
Guam,
that
have
migrated
into
the
Agana
Swamp
and
adjacent
farmed
areas,
which
serve
as
a
source
of
catfish,
fruit
and
vegetables
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/
Vol.
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62
/
Friday,
March
30,
2001
/
Rules
and
Regulations
that
have
been
consumed
by
the
village
for
many
years.
In
describing
the
lack
of
disposal
options
that
are
available
to
inhabitants
of
Guam,
the
commenter
cited
unfair
restrictions
that
allowed
the
U.
S.
Government
to
transport
PCBs
to
Guam,
but
limits
their
return
to
the
U.
S.
mainland
for
proper
disposal.
In
another
set
of
comments
(C1–
009),
the
commenter
related
how
PCB
capacitors
were
sold
to
the
U.
S.
military
in
Texas
and
were
brought
to
the
village
of
Tanapag
in
the
Commonwealth
of
the
Northern
Mariana
Islands,
where
the
capacitors
were
abandoned
about
40
years
ago.
Contaminated
soil
cleanup
continues
today.
Efforts
by
the
U.
S.
Army
Corps
of
Engineers
to
dispose
of
PCBs
onsite
have
resulted
in
the
collection
of
contaminated
soil
in
a
single
location
within
the
village
where
the
soil
is
exposed
to
rain
and
wind.
According
to
the
commenter,
village
residents
have
excess
body
loads
of
PCBs
that
have
been
verified
by
the
Agency
for
Toxic
Substances
and
Disease
Registry
(ATSDR),
and
EPA
is
currently
conducting
an
evaluation
of
the
degree
of
contamination
of
ground
water
and
food
sources
used
by
the
village.
This
commenter
mentioned
several
difficulties
that
are
associated
with
PCB
contamination
in
U.
S.
territories.
Specific
difficulties
include:
a
growing
population
and
limited
land
which
make
it
impossible
to
designate
a
location
for
hazardous
waste
disposal;
there
are
no
alternatives
when
the
single
source
for
water
is
contaminated;
severe
tropical
storms,
earthquakes
or
volcanic
events,
which
are
characteristic
of
the
islands,
increase
the
likelihood
of
the
spread
of
PCB
contamination;
and
subsistence
economies
are
at
risk
by
contamination
and
replacement
sources
of
food
may
be
unavailable
or
unaffordable.
Although
this
commenter
(C1–
009)
recognizes
that
the
shipment
of
waste
to
the
U.
S.
mainland
is
not
without
risk,
he
stated
that
leaving
the
waste
in
place
is
inconsistent
with
national
goals
of
protecting
human
populations
and
the
environment
from
exposure
to
PCBs.
A
similar
concern
was
repeated
in
another
set
of
comments
(C1–
003)
which
stated
that
natural
events
can
easily
spread
PCBs
throughout
the
local
environments
to
the
detriment
of
ecosystems
on
which
human,
animal
and
plant
life
depend.
Another
commenter
(C1–
013)
pointed
out
that
U.
S.
territories
rely
on
tourism
for
income,
and
as
such,
it
is
important
to
protect
their
ecosystems
and
natural
resources.
Since
U.
S.
territories
have
sensitive
ecosystems,
limited
natural
resources
and
no
TSCA
facilities
for
proper
treatment
and
disposal
of
PCB
wastes,
the
commenter
stated
these
areas
face
increased
risk
of
costly,
longterm
PCB
environmental
and
human
health
issues
in
the
future.
Another
set
of
comments
(C1–
006)
expressed
support
for
the
rule
because
there
are
no
viable
disposal
options
in
the
territories
and
the
rule
will
require
disposal
to
be
conducted
in
strict
compliance
with
the
TSCA
PCB
regulations.
This
commenter
believes
it
would
be
more
protective
to
destroy
wastes
than
to
store
the
waste
in
areas
of
frequent
hurricanes
and
earthquakes.
Along
those
lines,
another
commenter
(C1–
007)
believes
it
is
in
the
interest
of
the
island
of
Guam
to
ensure
PCBs
brought
to
Guam
from
the
United
States
are
returned
to
the
United
States
for
proper
disposal.
Still
another
commenter
(C1–
009)
applauded
EPA's
efforts
to
correct
the
illogical
distinction
which
currently
exists
and
cited
the
disparity
in
EPA's
1984
policy
which
allowed
U.
S.
manufactured
PCBs
to
be
returned
to
the
United
States
as
long
as
that
waste
remained
under
the
control
of
the
U.
S.
Government,
but
that
same
waste
when
found
in
U.
S.
territories
could
not
be
returned
to
the
mainland
for
disposal.
In
this
commenter's
opinion,
populations
and
environments
located
in
U.
S.
territories
were
being
treated
with
less
care
than
those
populations
and
environments
that
are
outside
the
United
States.
One
commenter
(C1–
010)
stated
that
the
proposed
rule
properly
recognizes
that
TSCA
specifically
defines
territories
or
possessions
of
the
United
States,
such
as
Guam,
as
``
States''
and
reiterates
that
the
term
``
United
States''
means
all
of
the
States
(see
Sec.
3(
13)
and
3(
14)).
Another
commenter
(C1–
001)
stated
the
previous
interpretation
prohibited
U.
S.
territories
from
shipping
PCB
waste
to
approved
disposal
sites
in
compliance
with
applicable
regulations
and
that
the
earlier
interpretation
has
had
an
adverse
effect
on
health
and
environment.
These
(C1–
001,
C1–
003,
C1–
006,
C1–
007,
C1–
009,
C1–
010,
C1–
013)
and
other
comments
(C1–
002,
C1–
008,
C1–
011)
all
support
promulgating
the
rule
as
proposed.

B.
What
Comments
Opposed
the
Proposed
Rule?
1.
Legal
authority.
In
comments
submitted
during
the
comment
period
(C1–
012)
and
in
a
follow­
up
letter
(C1–
014),
a
commenter
argued
that
the
rule
violates
TSCA
section
6(
e)(
3),
which
bans
the
manufacture
of
PCBs
unless
EPA
issues
a
regulatory
exemption
to
the
ban
(C1–
012).
TSCA
section
3(
7)
defines
the
term
``
manufacture''
to
include
``
import
into
the
customs
territory
of
the
United
States.
''
The
commenter
cited
the
decision
in
Sierra
Club
v.
EPA,
118
F.
3d
1324
(9th
Cir.
1997),
which
held
that,
in
banning
manufacture
of
PCBs
after
January
1,
1979,
Congress
had
also
banned
all
import
of
PCBs
after
that
date,
because
``
manufacture''
is
defined
to
include
import.
The
commenter
viewed
this
rule
as
authorizing
PCB
waste
to
be
imported
into
the
customs
territory
of
the
United
States,
in
violation
of
TSCA
and
the
decision
of
the
U.
S.
Court
of
Appeals
for
the
Ninth
Circuit.
First,
the
commenter
argued
that
EPA
may
not
ignore
the
statutory
definition
of
``
manufacture,
''
which
includes
``
import
into
the
customs
territory
of
the
United
States.
''
This
rule
does
not
attempt
to
avoid
the
definition
of
``
manufacture.
''
Instead,
it
clarifies
what
EPA
will
consider
to
be
an
``
import''
of
PCBs
into
the
customs
territory
of
the
United
States
for
the
purposes
of
that
definition.
While
TSCA
defines
the
term
``
manufacture,
''
it
does
not
define
the
term
``
import.
''
The
commenter
believes
that
the
phrase
``
into
the
customs
territory
of
the
United
States''
defines
the
word
``
import,
''
rather
than
modifies
it.
EPA
disagrees
with
this
interpretation.
In
this
rule,
EPA
interprets
the
movement
of
certain
PCB
waste
from
areas
within
the
United
States
but
outside
the
customs
territory
of
the
United
States
to
disposal
facilities
inside
the
customs
territory
of
the
United
States
not
to
be
an
``
import''
for
purposes
of
TSCA
section
6(
e).
EPA
believes
that
``
import''
in
this
context
applies
to
the
initial
introduction
of
particular
PCBs
into
the
United
States
(and
the
jurisdiction
of
TSCA),
not
the
movement
across
the
border
of
the
customs
territory
of
previously
manufactured
PCBs
that
have
never
left
the
regulatory
jurisdiction
of
TSCA.
For
example,
under
TSCA,
Guam
is
part
of
the
United
States,
but
it
is
outside
the
customs
territory
of
the
United
States.
Under
this
rule,
it
would
not
be
an
``
import''
of
PCBs
to
transport
PCB
waste
that
was
present
in
Guam
on
January
1,
1979,
and
has
remained
in
Guam
since
that
date,
to
an
area
inside
the
customs
territory
of
the
United
States
for
disposal.
Since
this
transport
would
not
be
an
``
import,
''
it
would
not
be
an
act
of
``
manufacture''
which
is
banned
under
TSCA
section
6(
e)(
3)
and
the
Sierra
Club
decision.
The
definition
of
``
manufacture''
therefore
is
not
a
bar
to
the
amendments
in
this
rule.
Second,
the
commenter
believed
EPA
ignored
the
definition
of
``
manufacture,
''
which
includes
``
import
into
the
customs
territory
of
the
United
States
[emphasis
added]
''
when
it
read
sections
3(
13)
and
3(
14)
of
TSCA
as
defining
the
``
United
States''
to
encompass
territories
and
possessions
of
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Federal
Register
/
Vol.
66,
No.
62
/
Friday,
March
30,
2001
/
Rules
and
Regulations
the
United
States
outside
the
customs
territory
of
the
United
States.
EPA
disagrees
with
this
comment.
Under
TSCA
section
3(
14),
the
term
``
United
States''
means
``
all
of
the
States.
''
Under
TSCA
section
3(
13),
``
State''
means
``
any
State
of
the
United
States,
the
District
of
Columbia,
the
Commonwealth
of
Puerto
Rico,
the
Virgin
Islands,
Guam,
the
Canal
Zone,
American
Samoa,
the
Northern
Mariana
Islands,
or
any
other
territory
or
possession
of
the
United
States.
''
Thus,
the
requirements
of
TSCA
apply
to
PCBs
in
areas
inside
the
customs
territory
of
the
United
States
(the
50
States,
the
District
of
Columbia,
and
Puerto
Rico)
as
well
as
to
areas
outside
the
customs
territory
of
the
United
States
(the
remaining
territories
and
possessions).
Persons
who
manage
PCBs
in
areas
outside
the
customs
territory
of
the
United
States
must
manage
and
dispose
of
them
in
compliance
with
all
of
the
regulations
at
40
CFR
part
761,
yet
they
often
lack
adequate
local
storage
and
disposal
facilities.
As
the
commenter
points
out,
in
banning
manufacture
of
PCBs,
TSCA
bans
the
import
of
PCBs
into
the
customs
territory.
However,
in
this
rule,
EPA
interprets
the
movement
of
certain
PCB
waste
from
areas
within
the
United
States
(and
therefore
subject
to
TSCA)
but
outside
the
customs
territory
of
the
United
States,
to
disposal
facilities
inside
the
customs
territory
of
the
United
States
not
to
be
an
``
import''
for
purposes
of
the
definition
of
``
manufacture''
as
it
applies
to
TSCA
section
6(
e)
as
long
as
the
PCBs
in
the
waste
were
present
in
the
United
States
as
the
result
of
legal
manufacture
(i.
e.,
manufacture
prior
to
January
1,
1979)
and
have
remained
in
the
United
States
since
that
time.
In
doing
so,
EPA
is
not
attempting
to
avoid
that
portion
of
the
definition
of
``
manufacture''
that
prohibits
``
import
into
the
customs
territory
of
the
United
States.
''
Third,
the
commenter
argues
that
EPA
cannot
support
this
rule
by
reference
to
a
long­
standing
policy
that
treats
transboundary
movement
of
certain
PCB
waste
controlled
by
the
U.
S.
Government
as
neither
import
nor
export.
In
the
preamble
to
the
proposed
rule,
EPA
compared
the
interpretation
of
the
term
``
import''
proposed
at
§
761.99(
c)
to
its
view
of
the
terms
``
import''
and
``
export''
under
that
prior
policy.
The
policy
provides
that
PCBs
purchased
or
procured
in
the
United
States
by
the
Federal
government,
taken
overseas
for
use
in
U.
S.
Government
facilities,
and
that
have
remained
under
the
control
and
jurisdiction
of
the
U.
S.
Government,
may
be
subsequently
returned
to
the
United
States
for
disposal
in
an
approved
facility
without
violating
TSCA's
bans
on
import
and
export
of
PCBs.
EPA
did
not
refer
to
this
policy
as
the
basis
for
the
proposed
revisions
to
§
761.99(
c).
This
rule
is
based
on
EPA's
interpretation
of
the
undefined
statutory
term
``
import''
for
purposes
of
the
definition
of
``
manufacture''
as
used
in
TSCA
section
6(
e)(
3).
Rather,
EPA
referred
to
that
policy,
as
well
as
the
other
provisions
of
40
CFR
§
761.99,
to
illustrate
the
point
that
not
every
movement
of
PCBs
across
the
border
of
the
customs
territory
constitutes
an
``
import''
per
se
for
purposes
of
TSCA
section
6(
e)(
3).
Finally,
the
commenter
pointed
out
that
EPA
did
not
propose
to
amend
its
regulatory
definition
of
``
manufacture.
''
That
term
is
defined
in
40
CFR
761.3
to
mean
``
to
produce,
manufacture,
or
import
into
the
customs
territory
of
the
United
States
[emphasis
added].
''
The
commenter
pointed
out
that,
under
this
definition,
it
is
not
unlawful
to
import
PCBs
from
a
foreign
country
into
a
territory
or
possession
outside
the
customs
territory
of
the
United
States.
For
example,
PCB
waste
could
still
lawfully
move
from
Japan
to
Guam.
The
commenter
suggested
EPA
amend
this
definition
by
deleting
the
words
``
customs
territory
of.
''
This
would
bar
import
of
PCBs
into
any
territory
or
possession
of
the
United
States,
and
would
effectuate
EPA's
stated
goal
that
``
the
prohibitions
and
restrictions
of
PCBs
under
TSCA
section
6(
e)
and
its
implementing
regulations
protect
not
only
U.
S.
citizens
in
the
50
States,
but
U.
S.
citizens
in
all
the
territories
and
possessions
of
the
United
States,
''
(65
FR
65656).
Moreover,
the
commenter
opined
that
this
change
would
prevent
the
territories
and
possessions
from
becoming
a
conduit
of
PCB
waste
from
foreign
countries
to
disposal
facilities
on
the
U.
S.
mainland.
This
rule
does
not
allow
the
territories
and
possessions
to
become
a
conduit
to
disposal
facilities
in
the
U.
S.
mainland
for
PCB
waste
generated
in
foreign
countries.
This
rule
allows
PCBs
that
have
been
in
the
United
States
since
January
1,
1979,
including
PCB
waste
in
areas
outside
the
customs
territory
of
the
United
States,
to
be
moved
to
the
U.
S.
mainland
for
disposal.
The
rule
does
not
apply
to
PCBs
that
arrived
in
the
United
States
after
that.
The
commenter
is
correct
that,
under
the
current
definition
of
``
manufacture,
''
it
is
not
unlawful
for
foreign
PCBs
to
enter
territories
and
possessions
outside
the
customs
territory
of
the
United
States.
However,
the
rule
does
not
allow
PCBs
in
the
U.
S.
territories
and
possessions
that
entered
those
areas
after
January
1,
1979,
to
be
transported
to
the
U.
S.
mainland
for
disposal.
The
territories
and
possessions
therefore
cannot
become
a
conduit
of
PCB
waste
from
foreign
countries
to
disposal
facilities
on
the
U.
S.
mainland.
EPA
has
not
adopted
the
commenter's
suggestion
to
amend
the
regulatory
definition
of
``
manufacture.
''
First,
the
regulatory
definition
of
``
manufacture''
at
40
CFR
761.3
mirrors
the
statutory
definition
in
TSCA
section
3(
7).
Because
the
statutory
definition
would
remain
intact,
amending
the
regulatory
definition
would
not
have
the
effect
the
commenter
anticipates.
In
addition,
the
result
the
commenter
seeks
by
the
amendment
is
outside
the
scope
of
the
proposed
rule.
The
rule
as
proposed
would
not
have
prevented
foreign
PCBs
from
entering
areas
of
the
United
States
that
are
outside
the
customs
territory,
and
was
not
intended
to.
2.
Risks
posed
by
transportation
of
PCB
waste.
A
commenter
expressed
concern
about
the
risks
to
health
and
the
environment
of
transporting
PCB
waste
from
the
territories
and
possessions
to
the
U.
S.
mainland
for
disposal
(C1–
012
and
C1–
014).
The
commenter
cited
U.
S.
Department
of
Transportation
(DOT)
data
on
highway
incidents
involving
PCBs
and
other
hazardous
materials
that
resulted
in
death,
injury,
or
property
damage.
The
commenter
also
pointed
out
the
risk
of
accidents
during
transoceanic
shipments
of
PCB
waste.
The
commenter
suggested
that
disposal
technology
be
transported
to
the
waste,
rather
than
transporting
the
waste
to
the
disposal
site.
(See
EPA's
response
to
this
comment
in
Unit
III.
B.
3.
below.)
PCBs
(both
liquid
and
solid)
are
subject
to
DOT
regulations
that
apply
to
transport
of
hazardous
materials.
The
Hazardous
Materials
Regulations
(HMR),
49
CFR
parts
171
through
180,
apply
to
materials,
or
groups
or
classes
of
materials,
that
the
Secretary
of
Transportation
has
determined
may
pose
an
unreasonable
risk
to
health
and
safety
or
property
when
transported
in
commerce
in
a
particular
amount
and
form.
The
HMR
are
issued
for
the
safe
transportation
of
these
materials
in
interstate,
intrastate,
and
foreign
commerce
by
aircraft,
railcars,
vessels,
and
any
motor
vehicles.
The
HMR
address
hazard
communication,
packaging
requirements,
operational
rules,
and
training.
These
rules
already
apply
to
transoceanic
shipment
of
PCBs
between
areas
inside
the
customs
territory
but
not
in
the
mainland
United
States
and
disposal
facilities
on
the
mainland.
EPA's
intent
for
this
rule
is
to
put
citizens
in
the
territories
and
possessions
in
the
same
regulatory
position
as
citizens
in
Hawaii
or
Puerto
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/
Vol.
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No.
62
/
Friday,
March
30,
2001
/
Rules
and
Regulations
Rico
with
respect
to
disposal
of
PCBs.
To
the
extent
the
commenter
has
concerns
about
the
adequacy
of
those
other
rules,
such
concerns
are
outside
the
scope
of
this
rulemaking.
As
the
commenter
points
out,
incidents
involving
transportation
of
PCBs
and
other
hazardous
materials
do
occur.
Therefore,
transporters
of
PCBs
must
be
familiar
with
the
HMR
as
they
apply
to
PCBs,
and
are
legally
obligated
to
comply
with
those
provisions
as
applicable.
Compliance
with
the
HMR
is
the
best
way
to
prevent
transportation
incidents
to
the
greatest
extent
practicable.
Additional
information,
including
information
on
enforcement
and
training,
is
available
at
http://
hazmat.
dot.
gov/.
The
commenter
was
particularly
concerned
about
a
tanker
spill
of
PCBs
and
the
effect
such
a
spill
would
have
in
biologically
rich
coastal
waters,
or
near
areas
of
high
human
population,
croplands,
water
supplies,
critical
wildlife
habitat,
ports,
or
fisheries.
Although
a
comprehensive
inventory
of
the
PCB
waste
in
the
territories
and
possessions
is
not
available,
information
developed
by
EPA
Region
IX
did
not
identify
any
appreciable
quantities
of
liquid
PCB
waste
that
would
be
likely
to
be
disposed
of
in
U.
S.
mainland
facilities.
The
PCB
waste
Region
IX
identified
is
made
up
of
approximately
10,000
cubic
yards
of
soil,
13
transformers
(one
estimated
to
contain
up
to
310
gallons
of
liquid
PCBs),
one
55–
gallon
drum
of
personal
protective
equipment,
800
fluorescent
lamp
ballasts
packed
in
four
55–
gallon
drums,
and
41
drums
of
sludge
and
soil
from
leaking
transformers
(Ref.
8).
Therefore,
EPA
believes
it
is
unlikely
that
any
territory
or
possession
would
ever
generate
enough
liquid
PCB
waste
to
fill
a
tanker
ship
bound
for
the
mainland
United
States.
As
noted
above,
transporters
of
PCBs
must
be
familiar
with
the
HMR
as
they
apply
to
PCBs,
and
are
legally
obligated
to
comply
with
those
provisions
as
applicable.
3.
Risks
posed
by
disposal
of
PCB
waste.
The
commenter
also
opposed
the
proposed
rule
on
the
ground
that
facilities
that
treat
and
dispose
of
PCBs
have
records
of
spills,
environmental
violations,
and
imposed
penalties,
and
pose
risks
to
health
and
the
environment
that
are
``
not
negligible''
(C1–
012
and
C1–
014).
The
commenter
also
noted
that
dioxin­
like
products
of
incomplete
combustion
can
form
from
unburned
PCBs
released
during
incineration.
These
products
of
incomplete
combustion
can
become
widely
dispersed
in
the
environment
and
can
bioaccumulate
in
the
food
chain.
The
commenter
pointed
out
that
innovative,
alternative
technologies
are
available
as
alternatives
to
incineration.
The
commenter
suggested
that
these
innovative,
alternative
technologies
be
used
to
treat
the
waste
on­
site
in
the
territories
and
possessions,
rather
than
sending
the
waste
to
the
mainland
United
States
for
incineration.
PCB
waste
covered
by
this
rule
must
be
managed
in
accordance
with
the
disposal
regulations
at
40
CFR
part
761,
which
were
promulgated
under
TSCA's
no
unreasonable
risk
standard.
These
regulations
allow
disposal
of
PCB
waste
in
TSCA­
approved
incinerators
(see
§
761.70).
As
part
of
its
approval
process
for
PCB
incinerators,
EPA
conducts
a
technical
assessment
of
the
facility's
technology
and
procedures
to
ensure
that
operation
of
the
facility
will
not
present
an
unreasonable
risk
of
injury
to
health
or
the
environment.
EPA's
technical
assessment
establishes
limits
on
the
PCB
concentration
of
the
waste
the
facility
may
dispose
of,
and
on
the
waste
feedrate
per
hour,
based
on
a
demonstration
test.
The
operating
conditions
of
the
approval
are
set
so
that
they
do
not
exceed
the
values
established
in
the
technical
assessment.
The
approval
also
requires
the
facility
to
meet
the
regulatory
standards
set
out
in
40
CFR
part
761,
subpart
D
as
to
destruction
and
removal
efficiency
and
PCB
concentration
of
the
facility's
waste
products.
However,
thermal
destruction
is
not
the
only
disposal
option
available
under
EPA's
regulations.
Depending
on
the
form
of
the
waste
and
its
PCB
concentration,
other
disposal
options
include
TSCA­
approved
landfills
(see
§
761.75),
decontamination
(§
761.79),
and
disposal
in
certain
landfills
permitted
in
accordance
with
the
Resource
Conservation
and
Recovery
Act
(RCRA)
(see
§
761.61(
a)
and
§
761.62(
a)
and
(b)).
In
addition,
the
PCB
regulations
allow
EPA
Regional
Administrators
to
grant
risk­
based
approvals
for
alternative
disposal
and
decontamination
methods
under
§
761.60(
e),
§
761.61(
c),
§
761.62(
c),
and
§
761.79(
h).
In
1994,
the
last
year
for
which
data
have
been
compiled,
842,584,000
kilograms
of
PCB
waste
were
disposed
of
in
the
United
States
using
all
technologies
available
at
that
time
(Ref.
22).
EPA
supports
the
commenter's
suggestion
that
generators
and
disposers
of
PCB
waste
now
located
in
the
territories
and
possessions
examine
innovative,
alternative
disposal
technologies.
Some
of
these
technologies
are
commercially
available
and
may
offer
further
risk
reductions
over
mainland
disposal
in
an
incinerator
or
TSCA
landfill.
EPA
recently
released
a
report
reviewing
several
of
these
alternative
technologies,
``
Potential
Applicability
of
Assembled
Chemical
Weapons
Assessment
Technologies
to
RCRA
Waste
Streams
and
Contaminated
Media,
''
August
2000.
This
report
is
available
from
EPA's
web
site
at
www.
epa.
gov/
tio
or
at
www.
clu­
in.
org.,
or
from
EPA's
National
Service
Center
for
Environmental
Publications,
(800)
490–
9198.
Information
about
these
innovative,
alternative
technologies,
including
mobile
technologies
that
can
be
taken
to
the
locations
where
PCB
wastes
are
stored,
is
also
available
to
local
government
officials
and
members
of
the
public
through
Regional
PCB
Coordinators.
Anyone
intending
to
dispose
of
PCBs
using
an
alternative
technology
must
confirm
that
it
is
consistent
with
EPA's
regulations,
and
that
a
TSCA
PCB
disposal
approval
has
been
issued
that
is
specific
to
the
waste
and
technology
that
will
be
used.
EPA
acknowledges
that,
because
PCBs
are
toxic,
there
are
risks
associated
with
managing
them
that
cannot
be
completely
prevented.
Accidents
can
occur
during
storage
and
disposal,
as
can
lapses
in
compliance.
This
is
true
of
conventional
disposal
technologies
as
well
as
of
innovative,
alternative
technologies.
EPA's
PCB
regulations
and
facility­
specific
approvals
provide
regulatory
and
enforcement
structures
for
reducing
the
risks
inherent
in
managing
and
disposing
of
PCBs.
Moreover,
it
is
long­
standing
EPA
policy
that
the
benefits
of
permanently
removing
PCBs
from
the
environment
through
proper
disposal
outweigh
the
risks
of
the
disposal
processes
themselves
(see
EPA's
Import
for
Disposal
Rule,
61
FR
11096,
11098
(March
18,
1996)
(FRL–
5354–
8)).
These
benefits
may
be
greater
with
regard
to
the
territories
and
possessions,
where
facilities
for
proper
management
and
disposal
are
more
limited
than
on
the
U.
S.
mainland,
and
the
risks
of
release
to
the
environment
are
greater.
As
noted
above,
EPA's
intent
for
this
rule
is
to
put
citizens
in
the
territories
and
possessions
in
the
same
regulatory
position
as
citizens
in
Hawaii
or
Puerto
Rico
with
respect
to
disposal
of
PCBs.
To
the
extent
the
commenter
has
concerns
about
the
adequacy
of
the
PCB
disposal
regulations,
such
concerns
are
outside
the
scope
of
this
rulemaking.
4.
Environmental
justice
concerns.
A
commenter
questioned
EPA's
conclusion
in
the
preamble
to
the
proposal
that
this
rule
presents
no
environmental
justice
concerns,
and
that
it
will
reduce
risks
to
health
and
the
environment
from
PCBs
(C1–
012
and
C1–
014).
The
commenter
believed
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Federal
Register
/
Vol.
66,
No.
62
/
Friday,
March
30,
2001
/
Rules
and
Regulations
EPA
had
disregarded
the
environmental
risks
that
low­
income
and
minority
communities
in
the
territories
may
face
due
to
transportation
of
PCB
wastes.
The
commenter
also
believed
EPA's
conclusion
ignored
increased
exposure
to
PCBs
and
attendant
health
risks
that
will
be
borne
by
low­
income
and
minority
communities
surrounding
the
treatment
and
disposal
facilities
in
the
United
States
where
the
wastes
will
be
sent.
Pursuant
to
Executive
Order
12898,
entitled
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Communities
(59
FR
7629,
February
16,
1994),
the
Agency
has
considered
environmental
justice
related
issues
with
regard
to
the
potential
impacts
of
this
action
on
the
environmental
and
health
conditions
in
low­
income
and
minority
communities.
EPA
finds
that
the
amendments
in
this
final
rule
will
reduce
the
risk
to
human
health
and
the
environment
from
exposure
to
PCBs
in
low­
income
and
minority
communities
in
the
U.
S.
territories
and
possessions
located
outside
of
the
customs
territory
of
the
United
States
because
it
will
allow
PCB
waste
found
there
to
be
disposed
of
in
EPA­
approved
facilities
on
the
mainland
of
the
United
States.
Executive
Order
12898
directs
Federal
agencies
to
identify
and
address
``
disproportionately
high
and
adverse
human
health
or
environmental
effects
of
its
programs,
policies,
and
activities
on
minority
populations
and
lowincome
populations
in
the
United
States
and
its
territories
and
possessions.
.
.''
EPA's
judgment
at
the
time
of
the
proposed
rule
was
that
the
rule
would
benefit
low­
income
and
minority
populations
in
the
territories
and
possessions
because
it
would
allow
PCB
waste
to
be
removed
from
those
areas
for
permanent
disposal.
Comments
from
the
territories
and
possessions
support
that
judgment.
The
Resident
Representative
to
the
United
States
from
the
Commonwealth
of
the
Northern
Mariana
Islands
supported
the
proposed
rule
(C1–
009).
The
commenter
noted
the
risks
to
residents
of
the
village
of
Tanapag
from
soil
contaminated
by
abandoned
PCB
capacitors.
As
discussed
in
Unit
III.
A.,
members
of
the
village
community
have
been
verified
by
the
ATSDR
to
have
excess
body
loads
of
PCBs.
EPA
is
currently
evaluating
the
degree
of
contamination
of
ground
water
and
food
sources
used
by
the
village.
An
attempted
remediation
of
the
contaminated
soil
using
thermal
desorption
has
not
been
completed,
and
contaminated
soils
are
stockpiled
within
the
village,
exposed
to
sun
and
rain.
The
commenter
also
noted
the
difficulty
of
managing
hazardous
waste
on
a
small
tropical
island
with
limited
land
resources,
a
single
source
of
drinking
water,
and
frequent
tropical
storms,
earthquakes,
and
volcanos.
The
commenter
further
observed
that
economic
factors
for
the
islands
are
problematic.
The
island
may
be
exposed
to
a
variety
of
toxic
wastes
due
to
global
commerce,
requiring
a
multitude
of
disposal
technologies,
but
for
a
small
quantity
of
each
type
of
waste.
Thus,
economies
of
scale
in
establishing
and
operating
disposal
facilities
are
lacking.
Furthermore,
the
subsistence
economies
on
which
some
island
people
rely
are
put
at
risk
by
contamination,
and
replacement
sources
of
food
may
be
unavailable
or
unaffordable.
The
commenter
concluded,
``
Shipment
of
PCB
wastes
from
the
U.
S.
territories
to
the
U.
S.
customs
territory
is
not
without
risk;
but
the
alternative
of
leaving
the
wastes
where
they
are
has
proven
to
have
results
inconsistent
with
the
goals
of
our
national
policy
of
protecting
the
environment
and
human
populations
from
exposure
to
PCBs.
''
EPA
has
issued
an
Order
under
RCRA
to
the
Army
Corps
of
Engineers
to
clean
up
the
Tanapag
Village
contamination.
The
Chairperson
of
the
Committee
on
Natural
Resources
of
the
Senate
of
Guam
also
wrote
in
favor
of
the
proposed
rule
(C1–
007).
The
senator
pointed
out
that
Guam
is
a
small
island,
prone
to
natural
disasters
such
as
typhoons
and
earthquakes.
The
senator
also
noted
that
the
island's
growing
population
and
limited
land
area
will
make
it
difficult
if
not
impossible
to
designate
any
part
of
the
island
for
hazardous
waste
disposal.
The
population
of
Guam
is
becoming
more
concerned
about
the
health
and
environmental
effects
PCBs
may
have
on
the
people
and
the
island.
A
current
case
on
Guam
involves
PCBs
that
leaked
into
the
largest
wetland
on
Guam
from
a
Navy
power
plant.
The
Navy
is
currently
assessing
the
effect
PCBs
may
have
on
the
aquatic
life
in
the
wetland,
such
as
catfish,
and
the
fruits
and
vegetables
that
have
been
farmed
in
the
area
and
consumed
by
island
residents
for
many
years.
A
number
of
residents
in
the
local
village
are
concerned
that
adverse
health
effects
such
as
cancer
may
have
occurred
because
of
living
next
to
the
power
plant
or
consuming
food
that
was
produced
in
the
area.
The
senator
concluded:
To
insure
the
health
and
welfare
of
our
island
residents,
it
is
in
the
interest
of
the
island
to
insure
that
toxins
such
as
PCBs
that
have
been
brought
into
Guam
from
U.
S.
destinations
be
returned
for
proper
disposal.
The
U.
S.
territories,
such
as
Guam,
should
not
be
unfairly
burdened
by
restrictions
that
allowed
for
the
transportation
of
such
a
toxin
from
the
United
States
to
Guam,
but
limits
the
return
to
the
U.
S.
mainland
from
Guam
for
proper
disposal.
Our
islands
and
our
limited
land
resources
and
extenuating
environmental
conditions
should
be
given
fair
consideration
in
addressing
USEPA's
proposed
rule
for
proper
disposal
facilities
in
the
U.
S.
mainland.
The
Administrator
of
the
Guam
Environmental
Protection
Agency
commented
that
PCBs
from
several
cleanups
are
in
indefinite
storage
on
Guam
(C1–
008).
These
storage
areas
are
subject
to
damage
by
frequent
typhoons
and
earthquakes.
PCBs
that
are
released
can
present
an
exposure
risk
to
Guam
residents
through
consumption
of
contaminated
fish,
which
is
a
subsistence
food
for
Guam
residents.
Even
a
small
amount
seeping
into
the
groundwater
could
eliminate
Guam's
sole
aquifer
as
a
source
of
drinking
water.
The
commenter
stated
that
the
proposed
rule
would
remove
a
tremendous
burden
on
Guam
and
ensure
that
a
safe
and
viable
mechanism
existed
for
the
protection
of
health
and
the
environment
for
residents
on
Guam
where
disposal
facilities
are
not
available.
A
Member
of
Congress
from
Guam
supported
the
proposed
rule,
commenting
that
it
would
help
to
eliminate
the
threat
to
the
health
and
welfare
of
Guam
and
other
U.
S.
territories
communities
from
PCB
waste
(C1–
002).
A
Member
of
Congress
from
American
Samoa
commented
that
the
proposed
rule
was
a
common
sense
solution
to
the
problem
of
storage
of
PCBs
in
the
territories,
noting
that
hurricanes,
typhoons,
and
earthquakes
in
the
territories
can
spread
PCBs
throughout
the
local
environments
on
which
humans,
animals,
and
plant
life
depend
(C1–
003).
Finally,
a
long­
term
resident
of
Guam
who
is
also
an
environmental
professional
engaged
in
environmental
consulting
services
on
Guam
and
in
the
Commonwealth
of
the
Northern
Mariana
Islands
supported
the
proposed
rule
and
commented
that
EPA's
prior
policy
of
prohibiting
PCBs
in
the
territories
and
possessions
from
being
shipped
to
an
EPA­
approved
disposal
site
was
not
protective
of
health
and
the
environment
(C1–
001).
EPA
believes
that
the
interpretation
in
this
final
rule
will
result
in
reduced
risk
to
health
and
the
environment
from
exposure
to
PCBs
in
low­
income
and
minority
communities
in
the
U.
S.
territories
and
possessions.
This
rule
will
allow
most
PCB
waste
found
in
those
territories
and
possessions
to
be
disposed
of
in
EPA­
approved
facilities
on
the
mainland
of
the
United
States.

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Vol.
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No.
62
/
Friday,
March
30,
2001
/
Rules
and
Regulations
While
the
rule
could
result
in
some
short­
term
risk
from
transportation
of
the
waste,
EPA
believes
that
that
risk
is
outweighed
by
the
elimination
of
the
health
and
environmental
concerns
in
the
U.
S.
territories
and
possessions
over
the
long
term
that
would
be
posed
by
continued
storage
of
the
waste.
The
commenter
also
asserted
that
the
rule
would
adversely
affect
low­
income
and
minority
populations
who
live
near
the
disposal
facilities
in
the
United
States
where
the
waste
would
be
disposed
of
by
incineration
(C1–
012).
As
part
of
its
approval
process
for
PCB
incinerators,
EPA
conducts
a
technical
assessment
of
the
facility's
technology
and
procedures
to
ensure
that
operation
of
the
facility
will
not
present
an
unreasonable
risk
of
injury
to
health
or
the
environment.
EPA's
technical
assessment
establishes
limits
on
the
PCB
concentration
of
the
waste
the
facility
may
dispose
of,
and
on
the
waste
feedrate
per
hour,
based
on
a
demonstration
test.
The
operating
conditions
of
the
approval
are
set
so
that
they
do
not
exceed
the
values
established
in
the
technical
assessment.
The
approval
also
requires
the
facility
to
meet
the
regulatory
standards
set
out
in
40
CFR
part
761,
subpart
D
as
to
destruction
and
removal
efficiency
and
PCB
concentration
of
the
facility's
waste
products.
EPA
conducts
a
similar
analysis
when
permitting
other
types
of
PCB
disposal
facilities,
as
well,
and
determines
that
activities
at
the
facility
will
not
pose
an
unreasonable
risk
of
injury
to
health
or
the
environment.
Additionally,
the
approval
process
for
PCB
disposal
facilities
is
subject
to
E.
O.
12898.
Therefore,
EPA
is
also
required
to
consider
the
potential
impacts
of
that
action
on
the
environmental
and
health
conditions
in
low­
income
and
minority
communities
whenever
a
permit
is
approved.
Therefore,
as
long
as
PCB
waste
from
the
U.
S.
territories
and
possessions
is
disposed
of
in
accordance
with
a
facility's
approval,
disposal
of
the
waste
will
not
produce
risks
greater
than
those
calculated
at
the
time
the
PCB
disposal
approval
was
issued,
which
EPA
determined
will
not
pose
an
unreasonable
risk
to
the
surrounding
community.
Disposal
facilities
permitted
under
TSCA
must
renew
their
permits
periodically.
The
permit
renewal
process
is
open
to
public
participation.
Issues
on
siting
of
facilities,
including
environmental
justice
issues,
can
be
raised
as
part
of
that
process,
and
will
be
considered
by
EPA.
As
noted
above,
EPA's
intent
for
this
rule
is
to
put
citizens
in
the
territories
and
possessions
in
the
same
regulatory
position
as
citizens
in
Hawaii
or
Puerto
Rico
with
respect
to
disposal
of
PCBs.
To
the
extent
the
commenter
has
concerns
about
the
adequacy
of
EPA's
approval
of
specific
PCB
disposal
facilities
under
TSCA,
such
concerns
are
outside
the
scope
of
this
rulemaking,
and
can
be
addressed
in
the
renewal
process
for
those
facilitlies'
permits.
5.
Non­
cancer
health
effects
of
PCBs.
A
commenter
questioned
the
basis
for
the
statement
in
the
preamble
to
the
proposed
rule
that
``
PCBs
cause
significant
ecological
and
human
health
effects,
including
cancer,
neurotoxicity,
reproductive
and
developmental
toxicity,
immune
system
suppression,
liver
damage,
skin
irritation,
and
endocrine
disruption''
(C1–
011)
(see
65
FR
65655,
November
1,
2000)(
FRL–
6750–
6).
The
commenter
noted
that
the
only
reference
for
the
statement
was
a
report
by
EPA's
Office
of
Research
and
Development,
``
PCB
Cancer
DoseResponse
Assessment
and
Application
to
Environmental
Mixtures''
(Ref.
1).
The
commenter
pointed
out
that
that
report
addressed
the
carcinogenicity
of
PCBs,
not
their
non­
cancer
or
ecological
effects,
and
that
EPA's
Office
of
Research
and
Development
is
in
the
process
of
reassessing
the
non­
cancer
effects
of
PCBs.
The
commenter
referred
to
a
literature
review
it
has
conducted
on
non­
cancer
effects
of
PCBs,
which
was
submitted
for
the
Agency's
consideration
as
part
of
EPA's
reassessment
of
the
effects
of
dioxin
and
related
compounds
(including
co­
planar
PCBs)
(see
65
FR
59186,
October
4,
2000)
(FRL–
6880–
9).
The
literature
review
concludes
that,
except
for
certain
oculodermal
effects,
PCBs
do
not
contribute
to
adverse
health
effects
in
humans.
EPA
appreciates
the
commenter's
contribution
to
the
ongoing
efforts
elsewhere
in
the
Agency
to
assess
the
health
effects
of
PCBs.
However,
the
preamble
statement
the
commenter
questions
was
included
for
background
only,
as
this
rule
is
not
based
on
an
assessment
of
the
risks
of
PCBs.
This
rule
clarifies
EPA's
interpretation
of
the
TSCA
provisions
relating
to
the
manufacture
of
PCBs
as
an
exercise
of
the
Agency's
inherent
authority
to
issue
regulations
interpreting
the
statutes
it
administers.
As
a
result,
the
Agency
has
not
made
a
formal
finding
of
``
no
unreasonable
risk''
for
this
regulation
as
would
be
required
for
a
regulation
that
is
issued
under
section
6(
e)
of
TSCA.
This
regulation
codifies
EPA's
interpretation
of
an
undefined
term,
``
import,
''
in
the
definition
of
``
manufacture''
under
section
3(
7)
of
TSCA,
for
purposes
of
section
6(
e)(
3)
of
TSCA.
All
PCB
wastes
affected
by
this
rule
are
subject
to
the
current
regulations
at
40
CFR
part
761,
which
were
promulgated
based
on
the
standard
of
no
unreasonable
risk.

C.
What
Other
Comments
Were
Received
on
the
Proposed
Rule?
The
Agency
also
received
comments
that
raised
additional
issues.
1.
Broaden
the
scope
of
the
rule.
EPA
received
a
request
(C1–
004)
to
broaden
the
scope
of
the
proposed
rule
to
include
both
domestic­
and
foreignmanufactured
PCBs
that
have
remained
under
the
control
of
the
U.
S.
Government.
The
Agency
was
also
asked
to
consider
submitted
comments
(C1–
005)
as
a
petition
for
an
exemption
from
the
TSCA
prohibitions
to
allow
the
import
for
disposal
of
U.
S.
manufactured
PCBs
that
are
located
within
the
Western
Hemisphere.
(An
exemption
petition
requires
Agency
action
in
the
form
of
a
separate
rulemaking.)
EPA
cannot
act
favorably
on
either
of
these
requests
since
they
clearly
fall
outside
of
the
scope
of
the
proposed
rule.
The
proposal
was
issued
as
an
interpretive
rule
rather
than
a
TSCA
section
6(
e)
action;
therefore,
a
formal
finding
of
``
no
unreasonable
risk''
is
not
necessary.
The
legal
basis
for
the
proposed
interpretive
rule
was
that
PCBs
which
were
legally
present
anywhere
in
the
United
States
when
the
ban
took
effect
in
1979
should
not
be
considered
``
imported''
when
they
are
moved
to
another
place
in
the
United
States,
regardless
of
whether
the
PCBs
leave
or
enter
the
customs
territory
of
the
United
States.
EPA
believes
that
``
import''
in
this
context
applies
to
the
initial
introduction
of
particular
PCBs
into
the
United
States
(and
the
jurisdiction
of
TSCA),
not
to
the
movement
across
the
border
of
the
customs
territory
of
previously
manufactured
PCBs
that
have
never
left
the
regulatory
jurisdiction
of
TSCA.
Therefore,
foreign­
manufactured
PCBs
and
U.
S.­
manufactured
PCBs
that
have
been
exported
do
not
fit
within
the
narrowly
crafted
interpretation
of
the
proposed
rule.
An
exemption
remains
a
viable
alternative
for
seeking
Agency
approval
to
import
for
disposal
either
foreign­
made
PCBs
or
domestic­
made
PCBs
that
have
been
exported
from
the
United
States.
The
appropriate
means
of
obtaining
a
response
from
the
Agency
on
those
requests
is
to
submit
an
exemption
petition
pursuant
to
section
6(
e)(
3)
of
TSCA,
following
the
procedures
at
40
CFR
750.10.
Exemptions
may
be
granted
for
a
period
not
to
exceed
1
year,
but
only
after
the
petitioner
has
demonstrated
that
the
two
statutory
requirements
have
been
met
(i.
e.,
there
will
be
no
unreasonable
risk
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/
Vol.
66,
No.
62
/
Friday,
March
30,
2001
/
Rules
and
Regulations
of
injury
associated
with
the
requested
activity,
and
that
good­
faith
efforts
have
been
made
to
find
a
substitute
for
the
PCBs).
Neither
set
of
comments
provided
the
level
of
detailed
information
that
is
necessary
for
the
Administrator
to
act
on
a
request
for
an
exemption
from
the
TSCA
prohibitions.
2.
Treatment
of
post­
January
1,
1979
wastes.
EPA
also
received
two
inquiries
regarding
the
applicability
of
the
interpretive
rule
to
post–
1979
PCB
wastes.
One
set
of
comments
(C1–
008)
raised
a
concern
that
the
proposed
rule
would
not
allow
PCB
wastes
which
arrived
in
U.
S.
territories
after
January
1,
1979,
to
be
disposed
of
on
the
U.
S.
mainland.
Another
commenter
(C1–
011)
expressed
a
similar
opinion
and
indicated
there
may
be
difficulty
in
demonstrating
that
PCBs
were
present
in
a
U.
S.
territory
or
possession
prior
to
January
1,
1979.
The
suggested
solution
was
to
allow
importation
for
disposal
of
PCBs
present
in
a
territory
or
possession
on
the
``
effective
date
of
the
proposed
rule.
''
These
commenters
apparently
misunderstood
the
proposed
rule.
As
discussed
in
the
preamble
to
the
proposed
rule,
in
order
to
qualify
for
this
regulation,
the
PCBs
in
the
waste
in
question
must
have
been
present
in
the
United
States
prior
to
1979,
not
present
in
the
territory
or
possession
where
they
are
now
prior
to
that
date
(65
FR
65657).
So
long
as
the
PCBs
were
lawfully
manufactured
in
or
imported
into
the
United
States
prior
to
1979,
and
never
left
the
United
States,
the
date
on
which
they
entered
the
territory
or
possession
in
question
is
irrelevant.
Wastes
that
are
covered
by
this
rule
may
be
sent
to
the
U.
S.
mainland
for
disposal
in
accordance
with
the
PCB
disposal
regulations.
Any
other
PCB
waste
may
not
be
imported
to
the
U.
S.
mainland
for
disposal,
unless
an
exemption
under
section
6(
e)(
3)
of
TSCA
has
been
obtained.
Similarly,
foreign
PCB
waste
in
a
U.
S.
territory
or
possession
may
be
exported
to
another
country
for
disposal
only
when
the
TSCA
exemption
requirements,
and
all
requirements
of
any
relevant
international
agreement,
have
been
satisfied.
With
respect
to
changing
the
date
on
which
PCBs
must
have
been
in
the
United
States
in
order
to
qualify
for
this
regulation,
EPA
does
not
agree
that
using
the
date
of
the
proposed
rule
would
be
appropriate.
Part
of
the
basis
for
this
interpretive
rule
is
that
PCBs
that
are
present
in
the
United
States
when
the
ban
on
manufacturing
went
into
effect
and
have
remained
in
the
United
States
since
then
should
be
managed
in
the
same
manner
regardless
of
whether
they
are
now
present
in
a
territory
or
possession,
rather
than
within
the
customs
territory
of
the
United
States.
Therefore,
using
a
threshold
date
other
than
January
1,
1979,
would
not
be
supported
by
the
rationale
for
the
proposed
rule.

D.
What
Does
this
Final
Rule
Do?
As
noted
above,
the
territories
and
possessions
are
subject
to
all
of
TSCA's
requirements.
EPA
is
charged
with
implementing
section
6(
e)
to
protect
the
health
and
environment
of
all
U.
S.
citizens,
including
the
residents
of
the
territories
and
possessions.
To
interpret
the
statute
as
prohibiting
the
movement
of
PCB
waste
from
the
territories
and
possessions
to
disposal
facilities
in
the
U.
S.
mainland
puts
the
residents
of
the
territories
and
possessions
at
a
serious
disadvantage
compared
to
residents
of
areas
that
fall
within
the
definition
of
the
customs
territory.
Because
there
are
no
EPA­
approved
commercial
PCB
storage
or
disposal
facilities
outside
the
customs
territory,
and
because
of
the
unique
environmental
conditions
in
the
territories
and
possessions,
the
U.
S.
citizens
of
these
areas
are
subject
to
a
higher
likelihood
of
exposure
to
PCBs,
and
thus
potential
for
a
higher
risk
of
injury.
EPA
has
determined
that
its
previous
interpretation
of
the
definition
of
``
manufacture''
is
not
mandated
by
the
language
of
TSCA,
results
in
inequitable
treatment
among
different
areas
within
the
United
States,
does
not
adequately
protect
health
and
the
environment
throughout
the
United
States,
and
therefore
is
not
in
the
public
interest.
EPA
believes
that
use
of
the
term
``
import
''
in
the
definition
of
``
manufacture''
was
not
intended
to
include
the
movement
of
PCB
waste
that
has
never
been
outside
the
United
States
or
outside
the
regulatory
control
of
TSCA
(after
enactment)
from
one
area
of
the
United
States
(the
territories
and
possessions)
to
another
area
of
the
United
States
(the
mainland)
for
disposal.
There
is
an
obvious
distinction
between
that
type
of
movement
and
the
introduction
of
a
chemical
substance
into
the
customs
territory
of
the
United
States
from
a
foreign
country.
This
latter
category
results
in
the
introduction
of
a
substance
in
the
United
States
that
was
not
there
before,
and
is
much
more
analogous
to
the
manufacture
of
a
new
chemical
substance
in
the
United
States.
Therefore,
EPA
is
interpreting
the
movement
of
certain
PCB
waste
from
the
territories
and
possessions
into
the
customs
territory
of
the
United
States
for
disposal
not
to
be
a
``
manufacture''
subject
to
the
ban
set
forth
in
TSCA
section
6(
e).
This
interpretive
rule
allows
the
movement
of
PCB
waste
for
disposal
among
any
States
of
the
United
States,
as
defined
in
TSCA
sections
3(
13)
and
3(
14),
regardless
of
whether
the
waste
enters
or
leaves
the
customs
territory
of
the
United
States,
provided
that
the
PCBs
in
the
waste
were
present
in
the
United
States
on
January
1,
1979,
when
the
ban
on
manufacturing
took
effect,
and
has
remained
within
the
United
States
since
that
time.
This
rule
will
allow
PCB
waste
that
was
present
in
the
territories
and
possessions
at
the
time
TSCA's
ban
on
manufacturing
took
effect,
and
that
remained
within
the
territories
and
possessions
since
that
date,
to
be
stored
and
disposed
of
in
any
facility
in
the
United
States
that
meets
the
requirements
of
40
CFR
part
761,
subpart
D.
It
also
allows
PCBs
that
were
present
in
the
territories
and
possessions
at
the
time
TSCA's
bans
took
effect,
but
were
not
designated
as
waste
until
after
that
date,
to
be
stored
and
disposed
of
in
any
subpart
D
facility
in
the
United
States,
as
long
as
the
PCBs
and
PCB
waste
had
remained
in
the
United
States.
Finally,
this
interpretive
rule
allows
PCBs
or
PCB
wastes
that
were
transferred
from
an
area
in
the
United
States
that
is
outside
the
territories
and
possessions,
but
that
was
moved
to
a
territory
or
possession
after
January
1,
1979,
and
that
has
never
left
the
United
States,
to
be
stored
and
disposed
of
in
any
subpart
D
facility
in
the
United
States.
EPA
does
not
consider
movement
of
any
of
these
wastes
to
the
customs
territory
of
the
United
States
to
be
``
manufacture''
as
that
term
is
defined
in
TSCA
and
therefore
does
not
consider
it
subject
to
the
ban
on
manufacturing
under
TSCA
section
6(
e).
This
final
rule
applies
to
PCB
waste
in
the
territories
and
possessions
provided
that
the
PCBs
in
the
waste
are
there
as
the
result
of
conduct
that
was
legal
at
the
time
it
occurred
(for
example,
PCB
materials
that
were
brought
to
the
territories
before
TSCA's
ban
on
distribution
in
commerce
became
effective),
and
have
been
subject
to
regulation
under
TSCA
since
that
time.
This
would
include
PCB
equipment
that
was
lawfully
in
use
in
one
of
the
States,
that
was
transferred
to
a
territory
or
possession
for
continued
lawful
use,
and
that
reached
the
end
of
its
useful
life
and
became
subject
to
disposal
while
in
the
territory
or
possession.
This
final
rule
does
not
allow
disposal
in
the
United
States
of
PCBs
transported
to
the
territories
and
possessions
from
foreign
countries
after
the
effective
date
of
the
ban
on
manufacture
in
TSCA
section
6(
e)(
3).
The
purpose
of
this
rule
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Register
/
Vol.
66,
No.
62
/
Friday,
March
30,
2001
/
Rules
and
Regulations
is
to
ensure
that
all
U.
S.
PCB
waste
can
be
disposed
of
in
compliance
with
the
requirements
of
TSCA
section
6(
e)
and
its
implementing
regulations.
This
final
rule
does
not
allow
the
territories
and
possessions
to
become
a
conduit
to
the
United
States
for
PCB
waste
generated
in
other
countries.
Finally,
EPA
has
not
made
a
formal
finding
of
``
no
unreasonable
risk''
for
this
regulation.
This
regulation
is
not
being
promulgated
under
TSCA
section
6(
e),
but
rather
as
an
exercise
of
EPA's
inherent
authority
to
interpret
the
statutes
it
administers.

VIII.
References
and
Documents
in
the
Record
As
indicated
in
Unit
I.
B.
2.,
the
official
record
for
this
rulemaking
has
been
established
under
docket
control
number
OPPTS–
66020A,
the
public
version
of
which
is
available
for
inspection
as
specified
in
Unit
I.
B.
2.
The
following
is
a
listing
of
the
documents
that
have
already
been
placed
in
the
official
record
for
this
rulemaking:

A.
Federal
Register
Notices
1.
U.
S.
Environmental
Protection
Agency
(USEPA).
44
FR
31514,
May
31,
1979,
``
Polychlorinated
Biphenyls
(PCBs);
Manufacturing,
Processing,
Distribution
in
Commerce,
and
Use
Prohibitions:
Final
Rule.
''
2.
USEPA.
45
FR
29115,
May
1,
1980,
``
Polychlorinated
Biphenyls
(PCBs);
Expiration
of
the
Open
Border
Policy
for
PCB
Disposal:
Notice.
''
OPTS
62008.
3.
USEPA.
59
FR
62788,
December
6,
1994,
``
Disposal
of
Polychorinated
Biphenyls:
Proposed
Rule.
''
OPPTS–
66009A.
4.
USEPA.
61
FR
11096,
March
18,
1996,
``
Disposal
of
Polychlorinated
Biphenyls;
Import
for
Disposal:
Final
Rule.
''
OPPTS–
66009B.
5.
USEPA.
63
FR
35384,
June
29,
1998,
``
Disposal
of
Polychlorinated
Biphenyls
(PCBs):
Final
Rule.
''
OPPTS–
66009C.

B.
Reference
Documents
1.
USEPA,
Office
of
Research
and
Development
(ORD).
PCBs
Cancer
DoseResponse
Assessment
and
Application
to
Environmental
Mixtures.
EPA600P–
96001F
(September
1996):
75pp.
OPPTS–
66009C.
2.
USEPA,
Office
of
Air
Quality
Planning
and
Standards
(OAQPS).
Deposition
of
Air
Pollutants
to
the
Great
Waters,
First
Report
to
Congress.
EPA–
453R–
93–
055
(May
1994):
136pp.
OPPTS–
66009B.
3.
USEPA,
OAQPS.
Identification
of
Sources
Contributing
to
the
Contamination
of
the
Great
Waters
by
Toxic
Compounds.
EPA–
453R–
94–
087
(March
17,
1993):
145pp.
OPPTS–
66009B.
4.
USEPA,
OAQPS.
Relative
Atmospheric
Loadings
of
Toxic
Contaminants
and
Nitrogen
to
the
Great
Waters.
EPA–
453R–
94–
086
(March
15,
1993):
142pp.
OPPTS–
66009B.
5.
USEPA.
Chapter
2.2,
Exposure
and
Effects
of
Airborne
Contamination
for
the
Great
Waters
Program
Report.
EPA–
453R–
94–
085
(December
22,
1992):
201pp.
OPPTS–
66009B.
6.
USEPA,
Office
of
Prevention,
Pesticides,
and
Toxic
Substances
(OPPTS).
Commercially
Permitted
PCB
Disposal
Companies
(April
2000):
3pp.
7.
USEPA,
Office
of
Pollution
Prevention
and
Toxics
(OPPT).
Excerpt
from
the
PCB
Waste
Handler
Database;
Facility
Information
for
U.
S.
Territories
and
Possessions
(September
27,
2000):
12pp.
8.
USEPA,
Region
IX.
Memo
from
Lily
Lee,
Guam
Program
Manager,
to
Enrique
Manzanilla,
Director,
Cross
Media
Division,
Re:
Summary
of
PCB
Waste
Quantities
and
Concentrations
in
the
U.
S.
Territories
(July
19,
2000):
5pp.
9.
Unitek
Environmental­
Guam.
Letter
from
LeRoy
Moore,
President,
to
John
Malone
[sic],
Director,
National
Program
Chemicals
Division,
Re:
PCB
Shipments
from
Guam
and
Possessions
of
the
United
States
for
Disposal
in
the
Mainland
United
States
(May
11,
2000):
2pp.
10.
USEPA,
OPPT.
Note
from
Peter
Gimlin
to
the
File,
Re:
Unitek
Environmental­
Guam
(UEG)
Meeting
(September
27,
2000):
1p.
11.
U.
S.
Congress.
Letter
from
Robert
A.
Underwood,
House
of
Representatives,
to
Carol
M.
Browner,
Administrator,
EPA,
Re:
Disposal
of
Polychlorinated
Biphenyls
(PCBs)
from
Guam
and
the
Other
U.
S.
Territories
(April
12,
2000):
2pp.
12.
USEPA,
Region
IX.
Letter
from
Felicia
Marcus,
Regional
Administrator,
to
Robert
A.
Underwood,
U.
S.
House
of
Representatives,
Re:
Disposal
of
Polychlorinated
Biphenyl
Waste
(February
4,
2000):
2pp.
13.
USEPA,
OPPT.
Memo
from
John
W.
Melone,
Director,
Chemical
Management
Division,
to
George
Abel,
Chief,
Pesticides
and
Toxic
Substances
Branch,
USEPA
Region
X,
Re:
Transit
of
PCB
Waste
Generated
in
the
United
States
Through
a
Foreign
Country
(January
19,
1995):
2pp.
14.
USEPA,
OPPT.
Letter
from
John
W.
Melone,
Director,
Chemical
Management
Division,
to
Arthur
J.
Brown,
National
Science
Foundation,
Re:
Request
to
Return
PCBs
in
Antarctica
to
the
United
States
for
Disposal
(March
11,
1994):
3pp.
15.
USEPA,
OCM
and
OE.
Letter
from
Michael
F.
Wood,
Director,
Compliance
Division,
and
Michael
J.
Walker,
Enforcement
Counsel
for
the
Toxics
Litigation
Division,
to
Marion
P.
Herrington,
General
Electric
Company,
Re:
Transfer
of
PCB
Waste
Generated
in
A
U.
S.
Territory
to
An
Approved
Disposal
Facility
in
the
Continental
United
States
(August
14,
1992):
2pp.
16.
USEPA,
Office
of
Toxic
Substances
(OTS).
Letter
from
Don
R.
Clay,
Director
to
Colonel
Joseph
T.
Cuccaro,
Defense
Logistics
Agency,
Re:
USEPA
Position
on
DOD
Owned
PCB
Fluid
Located
Abroad
and
Returned
to
the
U.
S.
for
Disposal
(February
7,
1984):
3pp.
17.
United
Nations
Environment
Programme
(UNEP).
Inventory
of
World­
wide
PCB
Destruction
Capacity,
First
Issue
(December
1998):
85pp.
18.
U.
S.
Congress.
Congressional
Record
from
the
House
of
Representatives,
H8598,
Guam's
Environmental
Problems
(October
2,
2000):
1p.
19.
U.
S.
Congress.
Letter
from
Robert
A.
Underwood,
House
of
Representatives,
to
Carol
Browner,
Administrator,
EPA,
Re:
Inability
of
Guam
to
Import
PCBs
into
the
U.
S.
Mainland
for
Proper
Disposal
(December
10,
1999):
2
pp.
20.
USEPA,
OPPTS.
Letter
from
Susan
H.
Wayland,
Acting
Assistant
Administrator,
to
Robert
A.
Underwood,
U.
S.
House
of
Representatives,
Re:
Disposal
of
PCB
Waste
in
Guam
(June
14,
2000):
2
pp.
21.
USEPA,
OPPTS.
Letter
from
Susan
H.
Wayland,
Acting
Assistant
Administrator,
to
Robert
A.
Underwood,
U.
S.
House
of
Representatives,
Re:
Meeting
on
PCB
Waste
in
Guam
(September
29,
2000):
2
pp.
22.
USEPA,
OPPT.
PCB
Disposal
and
Storage
Statistics,
1990–
1994
(May
10,
1996):
11
pp.

IX.
Regulatory
Assessment
Requirements
A.
Executive
Order
12866
Under
Executive
Order
12866,
entitled
Regulatory
Planning
and
Review
(58
FR
51735,
October
4,
1993),
the
Office
of
Management
and
Budget
(OMB)
has
determined
that
this
action
is
not
a
``
significant
regulatory
action''
subject
to
review
by
OMB,
because
this
action
is
not
likely
to
result
in
a
rule
that
meets
any
of
the
criteria
for
a
``
significant
regulatory
action''
provided
in
section
3(
f)
of
the
Executive
Order.
This
final
rule
simply
clarifies
EPA's
interpretation
of
the
TSCA
section
6(
e)
provisions
relating
to
the
manufacture
of
PCBs.

B.
Regulatory
Flexibility
Act
(RFA)

Pursuant
to
section
605(
b)
of
the
Regulatory
Flexibility
Act
(RFA),
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996,
5
U.
S.
C.
601
et
seq.,
the
Agency
hereby
certifies
that
this
final
rule
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
The
factual
basis
for
this
determination
is
that
this
action
is
not
expected
to
result
in
any
direct
adverse
impact
for
small
entities.
This
rule
interprets
the
prohibition
on
the
``
manufacture
of
PCBs''
in
a
manner
which
affords
U.
S.
citizens
(including
small
entities)
residing
in
U.
S.
territories
and
possessions
located
outside
the
``
customs
territory
of
the
United
States''
an
opportunity
to
dispose
of
PCB
waste
when
facilities
that
require
EPA
approval
to
manage
PCB
waste
are
not
readily
available.
This
rule
is
being
promulgated
in
the
public
interest
to
ensure
equitable
treatment
among
different
areas
within
the
United
States
and
adequate
protection
of
health
and
the
environment
throughout
the
United
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62
/
Friday,
March
30,
2001
/
Rules
and
Regulations
States.
This
rule
provides
a
mechanism
for
the
disposal
of
PCB
waste
resulting
from
natural
disasters
(e.
g.,
tropical
storms,
cyclones,
typhoons
and
hurricanes),
former
use
of
U.
S.
territories
and
possessions
for
defense
purposes,
spills
of
PCBs
and
the
expiration
of
PCB
equipment
that
has
reached
the
end
of
its
natural
life
span.

C.
Paperwork
Reduction
Act
(PRA)
This
regulatory
action
does
not
contain
any
information
collection
requirements
that
require
approval
by
the
Office
of
Management
and
Budget
(OMB)
under
the
Paperwork
Reduction
Act
(PRA),
44
U.
S.
C.
3501
et
seq.

D.
Unfunded
Mandates
Reform
Act
(UMRA)
Pursuant
to
Title
II
of
the
Unfunded
Mandates
Reform
Act
of
1995
(UMRA),
Public
Law
104–
4,
EPA
has
determined
that
this
action
does
not
contain
a
Federal
mandate
that
may
result
in
expenditures
of
$100
million
or
more
for
State,
local
or
tribal
governments,
in
the
aggregate,
or
on
the
private
sector
in
any
one
year.
The
UMRA
requirements
in
sections
202,
204,
and
205
do
not
apply
to
this
rule,
because
this
action
does
not
contain
any
``
Federal
mandates''
or
impose
any
``
enforceable
duty''
as
defined
by
UMRA
on
State,
Tribal,
or
local
governments
or
on
the
private
sector.
The
requirements
in
section
203
do
not
apply
because
this
rule
does
not
contain
any
regulatory
requirements
that
might
significantly
or
uniquely
affect
small
governments.

E.
Executive
Order
13132
Executive
Order
13132,
entitled
Federalism
(64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
``
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications.
''
``
Policies
that
have
federalism
implications''
are
defined
in
the
Executive
Order
to
include
regulations
that
have
``
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government.
''
This
final
rule
does
not
have
federalism
implications,
because
it
will
not
have
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
This
action
interprets
the
TSCA
prohibition
on
the
manufacture
of
PCBs
in
a
manner
which
allows
PCB
waste
in
U.
S.
territories
and
possessions
located
outside
of
the
customs
territory
of
the
United
States
to
be
disposed
of
in
EPA­
approved
facilities
on
the
mainland
of
the
United
States.
Thus,
the
requirements
of
section
6
of
the
Executive
Order
do
not
apply
to
this
rule.

F.
Executive
Order
13084
and
13175
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.
''
This
rule
does
not
significantly
or
uniquely
affect
the
communities
of
Indian
tribal
governments,
nor
does
it
impose
substantial
direct
compliance
costs
on
such
communities.
It
interprets
the
TSCA
prohibition
on
the
manufacture
of
PCBs
in
a
manner
which
allows
PCB
waste
in
U.
S.
territories
and
possessions
located
outside
of
the
customs
territory
of
the
United
States
to
be
disposed
of
in
EPA­
approved
facilities
on
the
mainland
of
the
United
States.
Accordingly,
the
requirements
of
section
3(
b)
of
Executive
Order
13084
do
not
apply
to
this
rule.
On
November
6,
2000,
the
President
issued
Executive
Order
13175,
entitled
Consultation
and
Coordination
with
Indian
Tribal
Governments
(65
FR
67249).
Executive
Order
13175
took
effect
on
January
6,
2001,
and
revokes
Executive
Order
13084
as
of
that
date.
EPA
developed
this
rule,
however,
during
the
period
when
Executive
Order
13084
was
in
effect;
thus,
EPA
addressed
tribal
considerations
under
Executive
Order
13084.

G.
Executive
Order
12898
Pursuant
to
Executive
Order
12898,
entitled
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations
(59
FR
7629,
February
16,
1994),
the
Agency
has
considered
environmental
justice
related
issues
with
regard
to
the
potential
impacts
of
this
action
on
the
environmental
and
health
conditions
in
low­
income
and
minority
communities.
EPA
finds
that
the
interpretation
in
this
final
rule
will
reduce
the
risk
to
human
health
and
the
environment
from
exposure
to
PCBs
in
low­
income
and
minority
communities
in
the
territories
and
possessions.
This
rule
allows
PCB
waste
found
in
U.
S.
territories
and
possessions
located
outside
of
the
customs
territory
of
the
United
States
to
be
disposed
of
in
EPAapproved
facilities
on
the
mainland
of
the
United
States.

H.
Executive
Order
13045
Executive
Order
13045,
entitled
Protection
of
Children
from
Environmental
Health
Risks
and
Safety
Risks
(62
FR
19885,
April
23,
1997),
does
not
apply
to
this
rule,
because
it
is
not
``
economically
significant''
as
defined
under
Executive
Order
12866,
and
does
not
involve
decisions
on
environmental
health
risks
or
safety
risks
that
may
disproportionately
affect
children.
This
regulation
would
allow
PCB
waste
in
U.
S.
territories
and
possessions
located
outside
of
the
customs
territory
of
the
United
States
to
be
disposed
of
in
EPA­
approved
facilities
on
the
mainland
of
the
United
States.
Therefore,
the
disposal
of
PCB
waste
will
occur
where
children
are
either
not
present
or
not
permitted,
and
the
disposal
activity
will
pose
no
special
risks
to
children.
Also,
the
rule
will
prevent
exposure
of
children
in
U.
S.
territories
and
possessions
to
PCBs
that
might
result
from
improper
storage
or
disposal
of
PCB
waste.

I.
National
Technology
Transfer
and
Advancement
Act
(NTTAA)
This
regulatory
action
does
not
involve
any
technical
standards
that
would
require
Agency
consideration
of
voluntary
consensus
standards
pursuant
to
section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(NTTAA),
Public
Law
104–
113,
section
12(
d)
(15
U.
S.
C.
272
note).

J.
Executive
Order
12630
EPA
has
complied
with
Executive
Order
12630,
entitled
Governmental
Actions
and
Interference
with
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Federal
Register
/
Vol.
66,
No.
62
/
Friday,
March
30,
2001
/
Rules
and
Regulations
Constitutionally
Protected
Property
Rights
(53
FR
8859,
March
15,
1988),
by
examining
the
takings
implications
of
this
rule
in
accordance
with
the
``
Attorney
General's
Supplemental
Guidelines
for
the
Evaluation
of
Risk
and
Avoidance
of
Unanticipated
Takings''
issued
under
the
Executive
Order.

K.
Executive
Order
12778
In
issuing
this
rule,
EPA
has
taken
the
necessary
steps
to
eliminate
drafting
errors
and
ambiguity,
minimize
potential
litigation,
and
provide
a
clear
legal
standard
for
affected
conduct,
as
required
by
section
3
of
Executive
Order
12988,
entitled
Civil
Justice
Reform
(61
FR
4729,
February
7,
1996).

X.
Submission
to
Congress
and
the
Comptroller
General
The
Congressional
Review
Act,
5
U.
S.
C.
801
et
seq.,
as
added
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996,
generally
provides
that
before
a
rule
may
take
effect,
the
Agency
promulgating
the
rule
must
submit
a
rule
report,
which
includes
a
copy
of
the
rule,
to
each
House
of
the
Congress
and
the
Comptroller
General
of
the
United
States.
EPA
will
submit
a
report
containing
this
rule
and
other
required
information
to
the
U.
S.
Senate,
the
U.
S.
House
of
Representatives,
and
the
Comptroller
General
of
the
United
States
prior
to
publication
of
the
rule
in
the
Federal
Register.
This
rule
is
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),
Recordkeeping
and
reporting
requirements
Dated:
March
20,
2001.
Christine
T.
Whitman,
Administrator.

Therefore,
40
CFR
chapter
I,
part
761
is
amended
as
follows:
PART
761—[
AMENDED]

1.
The
authority
citation
for
part
761
will
continue
to
read
as
follows:

Authority:
15
U.
S.
C.
2605,
2607,
2611,
2614,
and
2616.

2.
Section
761.99
is
amended
by
adding
paragraph
(c)
to
read
as
follows:

§
761.99
Other
transboundary
shipments.

*
*
*
*
*
(c)
PCB
waste
transported
from
any
State
to
any
other
State
for
disposal,
regardless
of
whether
the
waste
enters
or
leaves
the
customs
territory
of
the
United
States,
provided
that
the
PCB
waste
or
the
PCBs
from
which
the
waste
was
derived
were
present
in
the
United
States
on
January
1,
1979,
and
have
remained
within
the
United
States
since
that
date.
[FR
Doc.
01–
7920
Filed
3–
29–
01;
8:
45
a.
m.]

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