[Federal Register: March 6, 2008 (Volume 73, Number 45)]
[Proposed Rules]
[Page 12053-12061]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06mr08-18]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 761
[EPA-HQ-RCRA-2008-0123; FRL-8538-6]
RIN 2050-AG42
Polychlorinated Biphenyls: Manufacturing (Import) Exemption for
Veolia ES Technical Solutions, LLC
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: With certain exceptions, section 6(e)(3) of the Toxic
Substances Control Act (TSCA) bans the manufacture, processing, and
distribution in commerce of polychlorinated biphenyls (PCBs). For
purposes of TSCA, ``manufacture'' is defined to include import into the
Customs Territory of the United States (U.S.). TSCA section 6(e)(3)(B)
gives EPA the authority to grant petitions to perform these activities
for a period of up to 12 months, provided EPA can make certain findings
by rule. On November 14, 2006, Veolia ES Technical Solutions, LLC,
(Veolia) submitted a petition to EPA to import up to 20,000 tons of PCB
waste from Mexico for disposal at Veolia's TSCA-approved facility in
Port Arthur, Texas. In this document, EPA is proposing to grant
Veolia's petition and soliciting comment on this proposed decision.
DATES: Comments must be received on or before April 21, 2008.
If a hearing is requested on or before April 7, 2008, an informal
hearing will be held at a location and on a date to be announced in a
future Federal Register.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2008-0123 by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: Comments may be sent by electronic mail to: rcra-
docket@epa.gov, Attention Docket ID No. EPA-HQ-RCRA-2008-0123.
Fax: Comments may be faxed to 202-566-9744, Attention
Docket ID No. EPA-HQ-RCRA-2008-0123.
Mail: Comments may be sent to Environmental Protection
Agency, EPA Docket Center (EPA/DC), Resource Conservation and Recovery
Act (RCRA) Docket, 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC
20460, Attention Docket ID No. EPA-HQ-RCRA-2008-0123. Please include a
total of two copies.
Hand Delivery: Comments may be hand delivered to the
Public Reading Room, EPA West Building, Room 3334, 1301 Constitution
Avenue, NW., Washington, DC, Attention Docket ID
[[Page 12054]]
No. EPA-HQ-RCRA-2008-0123. Such deliveries are only accepted during the
docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information. Please include a total of two
copies.
Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2008-0123. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail address will be captured automatically and included as part
of the comment that is placed in the public docket and made available
on the internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comments.
Electronic files should avoid the use of special characters, any form
of encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http:// www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the RCRA
Docket is 202-566-0270. Copies cost $0.15/page.
FOR FURTHER INFORMATION CONTACT: William Noggle, Office of Solid Waste,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number: (703) 347-8769; e-mail
address: noggle.william@epa.gov. Mail inquiries may be directed to the
Office of Solid Waste (OSW), (5304W), 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
This action primarily applies to the petitioner, Veolia. However,
you may be potentially affected by this action if you process,
distribute in commerce, or dispose of PCB waste generated by others,
i.e., you are an EPA-approved PCB waste handler. Potentially affected
categories and entities include, but are not necessarily limited to:
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Examples of potentially
Categories NAICS codes affected entities
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Waste Treatment and Disposal..... 5622 Facilities that manage
PCB waste.
Materials Recovery Facilities.... 56292 Facilities that manage
PCB waste.
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This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this section could also
be affected. The North American Industrial Classification System
(NAICS) codes have been provided to assist you and others in
determining whether 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
under FOR FURTHER INFORMATION CONTACT.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible.
Make sure to submit your comments by the comment period
deadline identified.
II. Background
A. What Action Is the Agency Proposing To Take?
In this notice of proposed rulemaking, the Agency is proposing to
grant a petition submitted by Veolia ES Technical Solutions., LLC
(Veolia) to import PCB waste for disposal. In the absence of an
exemption, the import of PCBs is banned by section 6(e)(3) of TSCA. The
petition, dated November 14, 2006, is for an exemption to import
[[Page 12055]]
up to 20,000 tons of PCB waste from Mexico for disposal at Veolia's
TSCA-approved facility in Port Arthur, Texas. Veolia's facility is
authorized by EPA under TSCA to dispose of PCBs.
B. What Is the Agency's Statutory Authority for Taking This Action?
Section 6(e) of TSCA, 15 U.S.C. 2605(e), generally prohibits most
uses of PCBs after October 11, 1977, the manufacture (which includes
import) of PCBs after January 1, 1979, and prohibits the processing and
distribution in commerce of PCBs after July 1, 1979. Section 6(e)(3)(A)
of TSCA prohibits the manufacture, processing, and distribution in
commerce of PCBs, except for the distribution in commerce of PCBs that
were sold for purposes other than resale before July 1, 1979. Section
6(e)(1) also authorizes EPA to regulate the disposal of PCBs consistent
with the provisions in section 6(e)(2) and (3).
Section 6(e)(3)(B) stipulates that any person may petition the
Administrator for an exemption from the prohibition on the manufacture,
processing, and distribution in commerce of PCBs. The Administrator may
by rule grant an exemption if the Administrator finds that:
(i) An unreasonable risk of injury to health or the environment
would not result, and (ii) good faith efforts have been made to
develop a chemical substance which does not present an unreasonable
risk of injury to health or the environment and which may be
substituted for such polychlorinated biphenyl. (15 U.S.C.
2605(e)(3)(B)(i)-(ii)).
The Administrator may prescribe terms and conditions for an exemption
and may grant an exemption for a period of not more than one year from
the date the petition is granted. In addition, section 6(e)(4) requires
that a rule under section 6(e)(3)(B) be promulgated in accordance with
sections 6(c)(2), (3) and (4), which provide for a proposed rule, the
opportunity for written comments and an informal public hearing, if
requested, and a final rule.
EPA's procedures for rulemaking under section 6 of TSCA are found
under 40 CFR Part 750. This part includes Subpart B--Interim Procedural
Rules for Manufacturing Exemptions, which describes the required
content for manufacturing exemption petitions and the procedures that
EPA follows in rulemaking regarding these petitions. These rules are
codified at 40 CFR 750.10 through 750.21.
III. Findings Necessary To Grant Petitions
A. No Unreasonable Risk Finding
Before granting an exemption petition, section 6(e)(3)(B)(i) of
TSCA requires the Administrator to find that granting an exemption
would not result in an unreasonable risk of injury to health or to the
environment in the United States. EPA expects a petitioner to
demonstrate in its petition that the activity will not pose an
unreasonable risk. (See 40 CFR 750.11.)
To determine whether a risk is unreasonable, EPA balances the
probability that harm will occur to health or to the environment
against the benefits to society from granting or denying each petition.
See generally, 15 U.S.C. 2605(c)(1). Specifically, EPA considers the
following factors:
1. Effects of PCBs on human health and the environment. In deciding
whether to grant an exemption, EPA considers the magnitude of exposure
and the effects of PCBs on humans and the environment. The following
discussion summarizes EPA's assessment of these factors. A more
complete discussion of these factors is provided in the preamble to the
1988 PCB proposed rule published in the Federal Register of August 24,
1988.
a. Health effects. EPA has determined that PCBs cause significant
human health effects, including cancer, immune system suppression,
liver damage, skin irritation, and endocrine disruption. PCBs exhibit
neurotoxicity, as well as reproductive and developmental toxicity. PCBs
are readily absorbed through the skin and are absorbed at even faster
rates when inhaled. Because PCBs are stored in animal fatty tissue,
humans are also exposed to PCBs through ingestion of animal products.
b. Environmental effects. Certain PCB congeners are among the most
stable chemicals known, and decompose very slowly once they are
released into the environment. PCBs are absorbed and stored in the
fatty tissue of higher organisms as they bioaccumulate up the food
chain through invertebrates, fish, and mammals. Significantly,
bioaccumulated PCBs appear to be even more toxic than those found in
the ambient environment, since the more toxic PCB congeners are more
persistent and thus more likely to be retained. PCBs also have
reproductive and other toxic effects in aquatic organisms, birds, and
mammals.
c. Risks. Toxicity and exposure are the two basic components of
risk. EPA has concluded that any exposure of humans or the environment
to PCBs may be significant, depending on such factors as the quantity
of PCBs involved in the exposure, the likelihood of exposure to humans
and the environment, and the effect of exposure. Minimizing exposure to
PCBs should minimize eventual risk. EPA has previously determined that
some activities, including the disposal of PCBs in accordance with 40
CFR part 761, pose no unreasonable risks. Other activities, such as
long-term storage of PCB waste, are generally considered by EPA to pose
unreasonable risks.
2. Benefits and costs. The benefits to society of granting an
exemption vary, depending on the activity for which the exemption is
requested. The reasonably ascertainable costs of denying an exemption
vary, depending on the individual petition. As discussed in section IV,
EPA has taken benefits and costs into consideration when evaluating
this exemption petition.
B. Good Faith Efforts Finding
Section 6(e)(3)(B)(ii) of TSCA also requires the Administrator to
find that ``good faith efforts have been made to develop a chemical
substance which does not present an unreasonable risk of injury to
health or the environment and which may be substituted for [PCBs].''
EPA expects a petitioner to demonstrate in its petition why this
standard is met. (See 40 CFR 750.11.) EPA considers several factors in
determining whether good faith efforts have been made. For each
petition, EPA considers the kind of exemption the petitioner is
requesting and whether the petitioner can demonstrate that time and
effort have been expended to develop or search for a substitute. In
each case, the burden is on the petitioner to show specifically what
was done to substitute non-PCB material for PCBs or to show why it was
not feasible to substitute non-PCBs for PCBs.
To satisfy this finding for requests for an exemption to import
PCBs for disposal, a petitioner must show why such activities should
occur in the United States and what steps have been taken to develop a
substitute. While requiring a petitioner to demonstrate that good faith
efforts to develop a substitute for PCBs makes sense when dealing with
exemption petitions for traditional manufacture and distribution in
commerce, the issue of the development of substitute chemicals seems to
have little bearing on whether to grant a petition for exemption that
would allow the import into the United States for disposal of PCB
waste. However, because section 6(e)(3)(B) allows a petitioner to
request an exemption from any of the prohibitions
[[Page 12056]]
listed in section 6(e)(3)(A), EPA believes that it is appropriate to
apply the standard in a way that is relevant to the particular
exemption requested. Therefore, EPA believes that to effectuate
Congress' intent, the relevant ``good faith'' issue for an exemption
request to import PCBs for disposal is whether the disposal of the
waste could and/or should occur outside the United States.
(Alternatively, one could read the standard to mean that efforts must
have been made to develop substitutes for the PCBs that are in the
waste to be imported for disposal, an interpretation that would nearly
always be met.)
IV. Proposed Disposition of Pending Exemption Petition
A. Summary of the Petition
On November 14, 2006, Veolia petitioned EPA for a one-year
exemption to import from Mexico approximately 20,000 tons of waste
containing PCBs at concentrations of 50 or more parts per million
(ppm). This material includes both solid and liquid PCB wastes,
including electrical equipment (e.g., transformers, capacitors,
switches and circuit breakers), dielectric fluids, used oils and
solvents containing PCBs, debris (e.g., gloves, rags, small parts,
packaging material), compacted empty drums, and contaminated soil. The
PCB concentrations of the wastes are between 50 ppm and 500,000 ppm.
The PCB waste is currently in temporary storage at customer facilities
in Mexico, and would be collected and managed by Veolia's Mexican
affiliate RIMSA prior to import. According to the petition, RIMSA
operates the only authorized treatment plant and landfill disposal
facility in Mexico, as well as eleven transfer stations.
Veolia would truck the PCB waste from the various RIMSA facilities
in Mexico to Veolia's TSCA-approved facility in Port Arthur, Texas. The
road distance from the Mexican-U.S. border to the Port Arthur facility
is approximately 460 miles from either the Brownsville or Laredo entry
point. RIMSA would place the waste containing PCBs in drums or other
DOT-and EPA-approved containers for shipment. Handling and shipping
would include blocking, bracing, over-packing, and inclusion of spill
containment devices, as required by applicable transportation
regulations. The trucks will meet all DOT hazardous materials
transportation standards, including proper placarding and marking, as
well as any applicable EPA requirements, e.g., Sec. 761.40(b).
All imported PCB waste would be transported to, and disposed of, at
the Veolia Treatment Complex and Incineration Facility, located at
Highway 73, West of Taylors Bayou, in Port Arthur, Texas 77640. The
incinerator holds a Resource Conservation and Recovery Act (RCRA)
permit from the State of Texas for hazardous waste disposal and TSCA
authorization from EPA for PCB disposal. USEPA ID
TXD000838896. The 150 million BTU/hr rotary kiln incinerator
is 16 feet in diameter and 60 feet long. A secondary combustion chamber
destroys volatilized organics. Under TSCA, it is authorized to burn
solids, sludges, energetic liquids, lean water and containerized wastes
at any PCB concentration. A minimum 99.9999% Destruction Removal
Efficiency (DRE) for PCBs is achieved in compliance with TSCA. The
facility is permitted to handle up to 150,000 tons per year of RCRA and
TSCA waste and auxiliary fuel with hourly constraints on individual
feed devices, feed concentrations, and heat releases. In accordance
with the incinerator's TSCA approval and RCRA Part B permit, all
resulting residues from the process are disposed of in a RCRA Subtitle
C landfill permitted to take such waste. The facility also contains an
analytical laboratory to test incoming wastes.
1. Information Regarding No Unreasonable Risk Provided by the
Petitioner
Veolia asserts in its petition that granting the petition would
significantly decrease the probability of health and environmental harm
and would benefit society by eliminating PCB-contaminated wastes from
storage that could otherwise result in releases to the environment in
North America.
Veolia argues that shipment of these PCBs to its Port Arthur TSCA-
approved facility would provide the safest, most regulated type of PCB
disposal, citing its compliance with DOT regulations and the shipping
practices previously described. Veolia notes that EPA has previously
concluded that the transportation of PCB waste in accordance with the
DOT hazardous materials regulations for PCBs poses no unreasonable
risks, citing EPA's statements in the 1996 PCB Import Rule (61 FR
11096, at 11097-11098). Veolia also cites EPA's reference in that rule
to DOT statistics that indicated only one serious incident involving
PCB transport between January 1, 1990 and November 15, 1994, in
comparison to 16,074 incidents involving other hazardous materials
during a similar timeframe, including 14 serious incidents involving
Class 7 radioactive materials (61 FR at 11098). Veolia states that, in
preparation for its petition, it made inquiries at DOT and the American
Trucking Association to determine whether more recent statistical data
were available, and was advised that such statistical surveys have not
been continued because PCBs are a Class 9 material and most research is
now concentrated on higher risk classes.
Regarding disposal risk, Veolia notes that the Port Arthur
incinerator has provided for the thermal treatment of considerable
quantities of PCBs and hazardous wastes, destroying in 2003
approximately 21,000 tons of domestic PCB waste, about 35% of the total
hazardous wastes incinerated at the facility. Since Veolia's TSCA
disposal authorization was granted in 1992, Veolia maintains it has a
very good compliance record. Veolia points to its facility managers'
``open lines of communications'' with EPA and the Texas Commission on
Environmental Quality (TCEQ) and their quick and diligent work to
resolve any issues that may arise. Veolia references EPA's prior
determination that the disposal of PCBs in accordance with the TSCA
regulations in 40 CFR part 761 poses no unreasonable risk, citing the
PCB Import Rule (61 FR at 11098) and referencing a January 31, 2003,
EPA final rule granting a Defense Logistics Agency import petition (68
FR 4934). Veolia notes that the Port Arthur TSCA-approved incinerator
meets or exceeds all protective standards in 40 CFR part 761. Veolia
notes further that when the import of PCB waste was allowed under the
PCB Import Rule [1996-1997], it disposed of a significant volume of PCB
waste imported from Mexico at its Port Arthur facility, and that it
complied with all TSCA PCB requirements during that process.
In terms of benefits, Veolia states: ``The benefits of disposing of
PCBs that are in storage in Mexico are substantial. Continued
indefinite storage and lack of disposal capacity in Mexico increase the
risk of exposure to RIMSA personnel, to people living in and around the
customer facilities where the PCBs are stored, and to the environment,
should spills occur due to human error or severe weather, such as
hurricanes or earthquakes. Storage containers can deteriorate,
increasing the likelihood of PCB exposure to personnel who must monitor
such items and repack them if they suspect leakage. Frequent handling
creates multiple opportunities for spills or exposure.'' Veolia notes
that continued storage of PCBs in Mexico may pose an unreasonable risk
to health
[[Page 12057]]
or the environment, quoting conclusions made by EPA in support of the
1996 PCB Import Rule:
EPA believes that PCB wastes which are not disposed of for
extended periods of time or which are not disposed of in facilities
providing equivalent protection from release to the environment may
pose an unreasonable risk of injury to health and the environment.
(61 FR 11099)
Veolia then states that PCBs stored outside the United States pose a
risk in the United States that can be addressed by disposal at EPA-
approved facilities, again quoting EPA:
Based on the persistence of PCBs in the global environment and
EPA's finding that any exposure to human beings or the environment
may be significant, EPA believes that the safe disposal of PCBs in
approved U.S. facilities poses less risk of injury to health or the
environment in the U.S. than the continued presence of PCBs in other
countries, since proper disposal in this country provides protection
against possible hazards from improper disposal elsewhere. (61 FR
11099)
Finally, Veolia cites EPA's statement that the benefits of disposal in
the United States outweigh the risks:
While PCBs currently in storage or in the environment outside
the United States pose less immediate risk of injury to health and
the environment in the United States than PCBs in the United States
today, they do pose some risk. EPA believes that the benefits of the
removal of these PCBs outside the United States outweigh any risks
associated with their disposal in TSCA-approved facilities. (61 FR
11098).
Veolia concludes that: ``The benefit of prompt disposal at Veolia's
incineration facility in Port Arthur, Texas, outweighs any risk
associated with returning the PCB wastes to the U.S. for proper
disposal. Granting this petition presents no unreasonable risks and
will serve to mitigate or lessen the risk to human health and the
environment from continued indefinite storage of the PCB wastes in
Mexico.''
2. Information Regarding Good Faith Efforts Provided by the Petitioner
Veolia's petition states that Mexico has no facilities to dispose
of PCB wastes above 50 ppm concentration. Specifically, the petition
states, ``Mexico does have storage and handling facilities for PCBs,
but disposal capacity is simply not available. According to the recent
Mexican Environment Minister, Alberto Cardenas, no new sites have been
authorized for hazardous waste disposal in the last 15 years. Daily
Environment, Dec. 10, 2003, page A-8. In Mexico, most organic hazardous
wastes are disposed in cement kilns, but PCBs are banned from such
disposal, as they are in the United States. Based on the low volume of
PCB wastes in the country, there is no economic justification for
private companies to build a facility for disposal of PCBs in Mexico.''
Veolia also cites several sources that assert that much hazardous waste
in Mexico is improperly tracked and managed.
Veolia also argues that disposal of Mexican PCB wastes in Europe is
not a viable alternative: Specifically, the petition states, ``Disposal
of the PCB wastes in Europe is not economically sound. In the past,
some generators in Mexico have shipped PCBs by ocean carrier across the
Atlantic Ocean to overseas facilities, usually in France or Finland.
However, such shipments are significantly more expensive than transport
to the United States and can pose higher risks because of the
additional handling required for intermodal transport (truck to ship to
truck). For example, the typical cost of sea transportation for one 40
foot container with a capacity of 76 55-gallon drums from Vera Cruz
Port, Mexico, to Rotterdam, Holland, for trans-shipment to France is
about $7,000, not including land transportation costs to and from the
ports. By comparison, the cost of truck shipment from Monterrey,
Mexico, to the Port Arthur facility is about $2,700. Thus, just the
transportation cost for overseas shipments is 3 times more expensive.''
B. EPA's Proposed Finding and Decision on the Petition
EPA proposes to grant Veolia's petition, based on the following
proposed findings.
1. No Unreasonable Risk Determination
a. Risks Associated with Disposal at Veolia. EPA finds generally
that the disposal of imported PCB waste at an EPA-approved PCB disposal
facility poses no unreasonable risks as these facilities have been
approved on the basis of that standard. In addition, risks to human
health and the environment associated with the long-term storage of
this waste in Mexico far outweigh the risks associated with the
requested exemption.
b. Risks Associated with Transportation. EPA finds that the
transportation of waste under the requested exemption would pose no
unreasonable risk if conducted in accordance with all applicable laws
and regulations, as described in the petition. As noted above, EPA
allows the domestic processing and distribution in commerce of PCBs and
PCB items for disposal in compliance with 40 CFR Part 761, and in
issuance of the PCB Import for Disposal rule, EPA investigated and
sought comment on the risks inherent in the transportation of imported
PCB waste, and determined those risks to be insignificant. (61 FR 11096
at 11097). EPA affirmed these conclusions in granting petitions from
the Defense Logistics Agency to import PCB waste from Japan in 2003 (68
FR 4934) and 2007 (72 FR 53152). For these and the following reasons,
EPA finds that there is no unreasonable risk from the transport of this
waste to the United States for disposal:
i. Risk results from a combination of exposure (likelihood,
magnitude and duration) and the probability of effects occurring under
the conditions of exposure. Because the probability of a transport
accident occurring is low, as the DOT data indicate, the likelihood of
exposure to PCBs is commensurately low. Consequently, the likelihood of
adverse effects to human health or the environment is minimal.
ii. The PCB-containing materials would be packaged in a manner
consistent with federal, state, and local regulations addressing the
storage and transport of hazardous materials.
iii. Given that PCBs are hazardous and pose a potential risk to
health and the environment, and given the exposure likelihood,
frequency, and duration are so low that even though PCBs are considered
to be highly hazardous, risk (combined exposure and hazard) would not
be unreasonable to human health or the environment.
iv. The potential for human health risks are further mitigated by
duration of exposure. PCBs are most hazardous following long-term
(chronic) exposures. Under the transport scenario proposed, any
exposures to humans (i.e., accidental or emergency situation) would be
of relatively short duration. Hence, the low probability of exposure
occurring combined with the relatively short-term duration of exposure,
should one occur, further supports a qualitative conclusion that there
is no unreasonable risk to human health.
v. The long-term concern is the potential for accumulation in the
ecological environment. In a worst case scenario, where all of the PCBs
in a given truck-load would be released due to an unforeseen and highly
unlikely catastrophic event during transport, PCB-exposed biological
receptors could be adversely affected in the vicinity of the release
(and there would be the potential for long-range dispersal). However,
this scenario is highly unlikely because it would require a complete
failure of all safeguards in place. EPA believes that the alternative
of storing the PCBs indefinitely poses
[[Page 12058]]
more risk than transport. Further, should an accident occur, emergency
response authorities would be invoked to mitigate and/or remediate
exposures.
c. Benefits of Granting This Petition.
i. Avoiding the Risks of Long-Term Storage. EPA believes that
granting this petition to import 20,000 tons of waste contaminated with
PCBs greater than 50 ppm will benefit the United States and the
environment in general in several ways. As Veolia notes, the continued
long-term storage of PCB waste in Mexico poses risks of exposure to
human health and the environment--risks that can be greatly reduced
through the action proposed in this petition.
ii. Ensuring Proper and Safe Disposal. Granting this petition will
ensure the proper and safe disposal of this PCB waste in Veolia's TSCA-
approved disposal facility and eliminate the risk of improper disposal
and environmental release in Mexico, with its concomitant cross-border
risks to the United States.
iii. Ensuring the Safety of Mexican Citizens. EPA considers the
reduction of risk to Mexican citizens to be advantageous, especially in
light of the United States commitment to work with Mexico (and Canada)
toward the virtual elimination of PCBs from the North American
environment, as specified in the 1996 North American Regional Action
Plan for PCBs under the North American Commission for Environmental
Cooperation (CEC).
d. Conclusion. For the reasons described above, EPA finds that
granting the petition would pose no unreasonable risk of injury to
health or the environment.
2. Good Faith Efforts To Find Substitutes Met
EPA asserts that Veolia has demonstrated good faith efforts to
identify alternatives to disposal of this PCB waste in the United
States. EPA is aware of the lack of adequate PCB disposal capacity in
Mexico. While EPA disagrees with Veolia's contention that there is no
PCB disposal capacity in Mexico, EPA recognizes that the available
disposal capacity is nonetheless very limited in both the quantity and
concentration of the PCB waste it can process. For instance, in 1996,
the CEC reported that S.D. Myers de M[eacute]xico, S.A. de C.V.,
operates a mobile disposal unit for the treatment of PCB waste, but
only up to a concentration of 5,000 ppm and with a capacity of 150 tons
a month. (Status of PCB Management in North America) S.D. Myers's
facility is the only Mexican PCB disposal facility identified by UNEP
in 2004 (Inventory of World-Wide PCB Destruction Capacity, Second
Issue). Attempts to establish large hazardous waste incinerators with
the capacity to handle large volumes and high concentrations of PCBs
failed in Tijuana in the 1980s (TEESA) and Veracruz in 2005 (Altecin
S.A. de C.V.). The fact that Mexican facilities have had to ship high-
concentration PCBs overseas to Europe for disposal only highlights the
lack of adequate domestic disposal capacity.
EPA believes that the shipment of PCB waste from Mexico to Europe
is not a preferable alternative to PCB disposal in the United States.
Such trans-Atlantic shipments greatly increase the distances involved
in the transportation of this waste, as well as the amount of handling
involved in the transfer of waste between ship and trains or truck, and
therefore increase the risk that an accidental release of PCBs could
occur during transit. Such releases could occur in U.S. waters, as
container ships traveling from Mexico to Europe may make port calls
along the U.S. coast during their journey. In addition, the high cost
of this trans-Atlantic disposal option discourages the prompt removal
of PCBs from use and storage, as well as their proper disposal.
Reducing the cost of PCB disposal will encourage Mexican PCB equipment
owners and PCB waste storers to dispose of these materials by proper
means, reducing illegal disposal and its associated risk to human
health and the environment.
Given these circumstances, EPA finds that Veolia has made good
faith efforts to identify alternatives to this proposed exemption, and
the Agency is persuaded that disposal in Mexico or in a third country
is not a practicable or preferable alternative for this PCB waste,
relative to disposal in the United States.
3. For all of the aforementioned reasons, EPA finds that Veolia has
satisfied the exemption criteria of TSCA section 6(e)(3)(B) and
proposes to grant this petition. In this rulemaking, EPA is also
proposing certain terms and conditions in order to ensure no problems
with stranded or returned waste shipments occur. Specifically:
Veolia must have full financial responsibility for the
disposal of any PCB waste imported under this petition; Veolia's
financial assurance is detailed in the TSCA storage and disposal
approval granted for the Port Arthur facility.
If necessary, such as in the case of a Port Arthur
facility shutdown, Veolia can and will arrange for alternative disposal
of this waste at another TSCA-approved disposal facility in the United
States; and
Disposal of the imported PCB waste must occur within one
year of import. This condition is based on 40 CFR 761.65(a)(1).
V. References
1. Veolia ES Technical Solutions, LLC Petition from Greig R.
Siedor, Vice President and Chief Legal Officer, to EPA, OPPT.
Subject: Petition for Import Exemption for PCB Wastes Pursuant to
Toxic Substances Control Act section 6(e). November 14, 2006. 9 pp.
2. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import)
Exemptions. Final Rule. EPA-HQ-OPPT-2005-0042. Federal Register (72
FR 53152, September 18, 2007) (FRL-8143-4). Available at http://
www.epa.gov/fedrgstr.
3. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import)
Exemptions. Final Rule. EPA-HQ-OPPT-2002-0013. Federal Register (68
FR 4934, January 31, 2003) (FRL-7288-6). Available at http://
www.epa.gov/fedrgstr.
4. EPA, OPPTS. Disposal of Polychlorinated Biphenyls; Import for
Disposal. Final Rule. Federal Register (61 FR 11096, March 18, 1996)
(FRL-5354-8). Available at http://www.epa.gov/fedrgstr.
5. EPA, Office of Toxic Substances (OTS). Polychlorinated
Biphenyls; Manufacturing, Processing, Distribution in Commerce
Exemptions. Proposed Rule. OPTS-66008F. Federal Register (53 FR
32326, August 24, 1988).
6. Commission for Environmental Cooperation. Status of PCB
Management in North America. ISBN 0-921894-28-7, (1996): 158 pp.
Available at: www.cec.org.
7. UNEP. Inventory of World-Wide PCB Destruction Capacity,
Second Issue, (December 2004): 78 pp. Available at: http://
www.chem.unep.ch/pops/.
8. Commission for Environmental Cooperation/PCB Task Force. PCB
Regional Action Plan; Sound Management of Chemicals Project,
(December 1996): 25 pp. Available at: www.cec.org.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Review)
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is
therefore not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose any new information collection burden.
EPA is proposing to grant this petition by Veolia to import PCBs for
disposal at its Port Arthur facility. Veolia would then be subject to
the existing EPA regulations regarding the disposal of PCBs in 40 CFR
part 761. However, the Office of Management and Budget (OMB) has
previously approved the information collection requirements
[[Page 12059]]
contained in the existing regulations 40 CFR Part 761 under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2070-0112, EPA ICR number 1446.08. A
copy of the OMB approved Information Collection Request (ICR) may be
obtained from the Collection Strategies Division; U.S. Environmental
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington, DC
20460 or by calling (202) 566-1682.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the impacts of today's proposed rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements on small entities. EPA
is proposing to grant this petition submitted by Veolia to import PCBs
for disposal at its Port Arthur facility. Only Veolia, which is not a
small entity, would be regulated by this proposed rule. We continue to
be interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. EPA is proposing to grant a petition submitted
by Veolia to import PCBs for disposal at its Port Arthur facility. If
the petition is granted, and Veolia imports PCBs for disposal, Veolia
would be required to comply with the existing regulations on PCB
disposal at 40 CFR Part 761. The only mandate that would be imposed by
this proposal would be imposed on Veolia. In addition, EPA has
determined that this proposal would not significantly or uniquely
affect small governments. The Veolia petition states that the PCBs will
be disposed of in Veolia's TSCA-approved facility. No new facilities,
which could affect small government resources if a permit is required,
are contemplated. EPA believes that the disposal of PCBs in a
previously approved facility in the amount specified in this proposal
would have little, if any, impact on small governments. Thus, today's
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
E. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. EPA's proposal would grant a
petition submitted by Veolia to import PCBs and dispose of them in its
TSCA-approved disposal facility in Port Arthur, Texas, in accordance
with existing regulations. Thus, Executive Order 13132 does not apply
to this rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this
[[Page 12060]]
proposed rule from State and local officials.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175. EPA's
proposal would grant a petition submitted by Veolia to import PCBs and
dispose of them in its TSCA-approved disposal facility in Port Arthur,
Texas, in accordance with existing regulations. EPA does not believe
that this activity will have any impacts on the communities of Indian
tribal governments. Thus, Executive Order 13175 does not apply to this
rule. However, in the spirit of Executive Order 13175, EPA specifically
solicits comment on this proposed rule from tribal officials.
G. Executive Order 13045 (Protection of Children From Environmental
Health Risks and Safety Risks)
Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to any rule that: (1) Is determined to be ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
This proposed rule is not subject to the Executive Order because it
is not economically significant as defined in Executive Order 12866,
and because the Agency does not have reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children. EPA is proposing to grant the
petition from Veolia to import PCBs and dispose of them at its TSCA-
approved PCB disposal facility in Port Arthur, Texas, in accordance
with existing regulations. Because the facility will be operating
within their EPA-approved quantities, the risk for storage and disposal
of PCB-containing waste is already assumed by the surrounding
communities.
The public is invited to submit or identify peer-reviewed studies
and data, of which the agency may not be aware, that assessed results
of early life exposure to PCBs.
H. Executive Order 13211 (Energy Effects)
This proposed rule is not subject to Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it
is not a significant regulatory action under Executive Order 12866.
I. The National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
EPA welcomes comments on this aspect of the proposed rulemaking
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
J. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)
Executive Order 12898, (59 FR 7629, February 16, 1994), establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA is committed to addressing environmental justice concerns and
has assumed a leadership role in environmental justice initiatives to
enhance environmental quality for all citizens of the United States.
The Agency's goals are to ensure that no segment of the population,
regardless of race, color, national origin, income, or net worth bears
disproportionately high and adverse human health and environmental
impacts as a result of EPA's policies, programs, and activities. Our
goal is to ensure that all citizens live in clean and sustainable
communities. In response to Executive Order 12898, and to the concerns
voiced by many groups outside the Agency, EPA's Office of Solid Waste
and Emergency Response (OSWER) formed an Environmental Justice Task
Force to analyze the array of environmental justice issues specific to
waste programs and to develop an overall strategy to identify and
address these issues (OSWER Directive No. 9200.3-17).
EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. EPA asserts that no environmental justice issues are
associated with this proposed rule. Veolia's Port Arthur facility has
been approved by EPA to dispose of PCB waste since 1992 to store and
treat PCBs, ensuring protection of human health and environment. The
proposed rule also will not allow Veolia to import more waste than the
Port Arthur facility is approved to store and treat. Therefore, the
proposal will not result in any disproportionately negative impacts on
minority or low-income communities.
Lists of Subjects in 40 CFR Part 761
Environmental protection, Hazardous substances, Labeling,
Polychlorinated biphenyls, Reporting and recordkeeping requirements.
Dated: February 28, 2008.
Susan Parker Bodine,
Assistant Administrator for Solid Waste and Emergency Response.
Therefore, title 40, chapter I of the Code of Federal Regulations
is proposed to be amended as follows:
PART 761--[AMENDED]
1. The authority citation for part 761 continues to read as
follows:
Authority: 15 U.S.C. 2605, 2607, 2611, 2614, and 2616.
[[Page 12061]]
Subpart E--Exemptions
2. Section 761.80 is amended by adding paragraph (k) to read as
follows:
Sec. 761.80 Manufacturing, processing and distribution in commerce
exemptions.
* * * * *
(k) The Administrator grants Veolia ES Technical Solutions, LLC's
November 14, 2006 petition for an exemption for 1 year to import up to
20,000 tons of PCB waste from Mexico for disposal at Veolia's TSCA-
approved facility in Port Arthur, Texas. This petition is subject to
the following terms and conditions:
(1) Veolia accepts complete financial liability for the
transportation, storage and disposal of all PCB waste imported into the
United States under this petition.
(2) In the eventuality that Veolia is unable to dispose of any PCB
waste imported under this petition at its Port Arthur facility, Veolia
shall arrange for the disposal of that PCB waste in an alternative
TSCA-approved facility in the United States.
(3) For purposes of compliance with the 1 year storage for disposal
limit under Sec. 761.65(a), the date of removal from service for
disposal for PCB waste imported under this petition is the date the PCB
waste enters the United States.
* * * * *
[FR Doc. E8-4429 Filed 3-5-08; 8:45 am]
BILLING CODE 6560-50-P