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Rule2023-17708

Alternate PCB Extraction Methods and Amendments to PCB Cleanup and Disposal Regulations

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Published

August 29, 2023

Effective

February 26, 2024

Issuing agencies

Environmental Protection Agency

Abstract

The Environmental Protection Agency (EPA or the Agency) is finalizing an expanded set of extraction and determinative methods that can be used to characterize and verify the cleanup of polychlorinated biphenyls (PCBs) waste under implementing regulations for PCB-related authority in the Federal Toxic Substances Control Act (TSCA) (also referred to as the PCB regulations). These changes are expected to greatly reduce the amount of solvent used in PCB extraction processes, thereby conserving resources and reducing waste. In addition, the changes are expected to result in quicker, more efficient, and less costly cleanups, due to greater flexibility in the cleanup and disposal of PCB waste, while still being equally protective of human health and the environment. EPA is also finalizing several other amendments to the PCB regulations, including the amendment of the performance-based disposal option for PCB remediation waste; the removal of the provision allowing PCB bulk product waste to be disposed of as roadbed material; the addition of more flexible provisions for cleanup and disposal of waste generated by spills that occur during emergency situations (e.g., hurricanes or floods); harmonization of the general disposal requirements for PCB remediation waste; and other amendments to improve the implementation of the regulations, clarify ambiguity, and correct technical errors.

Full Text

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[Federal Register Volume 88, Number 166 (Tuesday, August 29, 2023)]
[Rules and Regulations]
[Pages 59662-59696]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-17708]

[[Page 59661]]

Vol. 88

Tuesday,

No. 166

August 29, 2023

Part III

Environmental Protection Agency

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40 CFR Part 761

Alternate PCB Extraction Methods and Amendments to PCB Cleanup and
Disposal Regulations; Final Rule

Federal Register / Vol. 88 , No. 166 / Tuesday, August 29, 2023 /
Rules and Regulations

[[Page 59662]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 761

[EPA-HQ-OLEM-2021-0556; FRL-7122-03-OLEM]
RIN 2050-AH08

Alternate PCB Extraction Methods and Amendments to PCB Cleanup
and Disposal Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
finalizing an expanded set of extraction and determinative methods that
can be used to characterize and verify the cleanup of polychlorinated
biphenyls (PCBs) waste under implementing regulations for PCB-related
authority in the Federal Toxic Substances Control Act (TSCA) (also
referred to as the PCB regulations). These changes are expected to
greatly reduce the amount of solvent used in PCB extraction processes,
thereby conserving resources and reducing waste. In addition, the
changes are expected to result in quicker, more efficient, and less
costly cleanups, due to greater flexibility in the cleanup and disposal
of PCB waste, while still being equally protective of human health and
the environment. EPA is also finalizing several other amendments to the
PCB regulations, including the amendment of the performance-based
disposal option for PCB remediation waste; the removal of the provision
allowing PCB bulk product waste to be disposed of as roadbed material;
the addition of more flexible provisions for cleanup and disposal of
waste generated by spills that occur during emergency situations (e.g.,
hurricanes or floods); harmonization of the general disposal
requirements for PCB remediation waste; and other amendments to improve
the implementation of the regulations, clarify ambiguity, and correct
technical errors.

DATES: This rule is effective February 26, 2024. The incorporation by
reference of certain material listed in the rule is approved by the
Director of the Federal Register as of February 26, 2024. The
incorporation by reference of certain other material listed in the rule
was approved by the Director of the Federal Register as of January 18,
2012.

ADDRESSES: The docket for this action, identified by docket
identification (ID) number EPA-HQ-OLEM-2021-0556, is available at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> or at the Office of Land and Emergency
Management Docket (OLEM Docket), Environmental Protection Agency Docket
Center (EPA/DC), William Jefferson Clinton West Bldg., Rm. 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 Federal
holidays. The telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the OLEM Docket is (202) 566-
0270. Please review the visitor instructions and additional information
about the docket available at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.

FOR FURTHER INFORMATION CONTACT: For further information regarding
specific aspects of this document, contact Jennifer McLeod, Program
Implementation and Information Division, Office of Resource
Conservation and Recovery, (202) 566-0384; email address:
<a href="/cdn-cgi/l/email-protection#c4a9a7a8a1aba0eaaea1aaaaada2a1b684a1b4a5eaa3abb2">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

The information presented in this preamble is organized as follows:

I. General Information
A. Does this action apply to me?
B. What action is the Agency taking?
C. What is the Agency's authority for taking this action?
D. What are the overall economic impacts of this action?
E. Summary of the Final Rule
II. Background
A. General Background on Polychlorinated Biphenyls (PCBs) and
This Rulemaking
B. Assumptions and Terminology Used in Discussion of Various
Methods
III. Discussion of Public Comments and the Final Rule
A. Revise Available Extraction Methods for PCBs
B. Update and Limit the Use of Ultrasonic Extraction
C. Revise Available Determinative Methods for PCBs
D. Revise Performance-Based Disposal Under Sec. 761.61(b)
E. Remove Regulatory Provision Allowing Disposal of PCB Bulk
Product Waste as Roadbed
F. Add Flexible Provisions for Emergency Situations
G. Harmonize General Disposal Requirements for PCB Remediation
Waste
H. Make Changes To Improve Regulatory Implementation
IV. Economic Impacts of the Final Rulemaking
V. Statutory and Executive Order (E.O.) Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act (CRA)

I. General Information

A. Does this action apply to me?

This rule potentially affects persons that manufacture, process,
distribute in commerce, use, or dispose of PCBs. The following list of
North American Industrial Classification System (NAICS) codes is not
intended to be exhaustive, but rather provides a guide to help readers
determine whether this document applies to them. Potentially affected
entities may include:
<bullet> Utilities: Electric power and light companies, natural gas
companies (NAICS code 22);
<bullet> Manufacturers: Chemical manufacturers, electronics
manufacturers, end-users of electricity, general contractors (NAICS
codes 31-33);
<bullet> Transportation and Warehousing: Various modes of
transportation including air, rail, water, ground, and pipeline (NAICS
code 48-49);
<bullet> Real Estate: People who rent, lease, or sell commercial
property (NAICS code 53);
<bullet> Professional, Scientific and Technical Services: Testing
laboratories, environmental consulting (NAICS code 54);
<bullet> Public Administration: Federal, State, and local agencies
(NAICS code 92);
<bullet> Waste Management and Remediation Services: PCB waste
handlers (e.g., storage facilities, landfills, incinerators), waste
treatment and disposal, remediation services, material recovery
facilities, waste transporters (NAICS code 562);
<bullet> Repair and Maintenance: Repair and maintenance of
appliances, machinery and equipment (NAICS code 811);
To determine whether your entity is affected by this action, you
should

[[Page 59663]]

carefully examine the changes to the regulatory text. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed under FOR FURTHER INFORMATION
CONTACT.

B. What action is the Agency taking?

EPA is revising the list of extraction and determinative methods in
the PCB regulations (40 CFR part 761); amending the performance-based
cleanup option for PCB remediation waste under Sec. 761.61(b);
removing the provision allowing PCB bulk product waste to be disposed
of as roadbed material; adding more flexible provisions for cleaning up
spills that occur during emergency situations, such as during a
hurricane or flood; harmonizing the general disposal requirements for
PCB remediation waste; and making several other amendments to improve
the implementation of the regulations, clarify ambiguity, and correct
technical errors and outdated information.

C. What is the Agency's authority for taking this action?

The authority for this rule is found in section 6(e)(1) of TSCA.
Specifically, section 6(e)(1)(A) gives EPA the authority to promulgate
rules regarding the disposal of PCBs (15 U.S.C. 2605(e)(1)(A)).

D. What are the overall economic impacts of this action?

EPA estimated the costs and benefits of this rule in an Economic
Assessment, which is available in the docket. Overall, EPA estimates
that the final rule will result in quantifiable annual cost savings of
approximately $14.4 million to $16.2 million when annualized at a
discount rate of seven percent. The annual cost savings range from
approximately $16.3 to $18.1 million when annualized at a discount rate
of three percent.

E. Summary of the Final Rule

The Agency published the proposed rule titled ``Alternate PCB
Extraction Methods and Amendments to PCB Cleanup and Disposal
Regulations'' in the Federal Register on October 22, 2021 (86 FR
58730). The comment period, including a 30-day extension, ended on
January 20, 2022 (86 FR 71862). For information on the proposed
rulemaking, including a summary of the comments received and how the
proposed changes are being finalized in this rule, please see Section
III. Discussion of the Public Comments and Final Rule. Comments that
warranted changes or preamble clarification are discussed in this
rulemaking; for a complete response to comments, see ``Response to
Comments on the Proposed PCB Rulemaking'' in the docket.
This final rule addresses several key issues related to
implementing the PCB Cleanup and Disposal Program under TSCA,
including:
Revise Available Extraction Methods for PCBs
EPA is adding the following extraction methods from SW-846, Test
Methods for Evaluating Solid Waste, to the PCB regulations in 40 CFR
part 761 for use on solid matrices: Method 3541 (Automated Soxhlet
Extraction), Method 3545A (Pressurized Fluid Extraction), and Method
3546 (Microwave Extraction). EPA is also adding the following
extraction methods from SW-846, Test Methods for Evaluating Solid
Waste, to the PCB regulations in 40 CFR part 761 for use on aqueous
matrices: Method 3510C (Separatory Funnel Liquid-Liquid Extraction),
Method 3520C (Continuous Liquid-Liquid Extraction), and Method 3535A
(Solid-Phase Extraction). The Agency is also incorporating by reference
Methods 3541, 3545A, 3546, 3510C, 3520C, and 3535A into Sec. 761.19.
Update and Limit the Use of Ultrasonic Extraction
EPA is revising the PCB regulations in 40 CFR part 761 to update
SW-846 Method 3550B (Ultrasonic Extraction) to the newer method 3550C
(Ultrasonic Extraction) and to limit the use of Method 3550C to wipe
samples only.
Revise Available Determinative Methods for PCBs
EPA is adding the determinative method SW-846 Method 8082A
(Polychlorinated Biphenyls (PCBs) By Gas Chromatography) to the PCB
regulations in 40 CFR part 761. EPA is also updating the inclusion of
Clean Water Act (CWA) Method 608 (Organochlorine Pesticides and PCBs)
to the newer version, Method 608.3 (Organochlorine Pesticides and PCBs
by GC/HSD).
Revise Performance-Based Disposal Under Sec. 761.61(b)
EPA is amending the performance-based disposal option for PCB
remediation waste under Sec. 761.61(b) to include provisions for
performance-based cleanup such as applicability, cleanup levels,
verification sampling, and recordkeeping and notification requirements.
EPA is also adding RCRA Subtitle C permitted landfills to the list of
allowed performance-based disposal options for non-liquid PCB
remediation waste.
Remove Regulatory Provision Allowing Disposal of PCB Bulk Product Waste
as Roadbed
EPA is removing the option in Sec. 761.62(d)(2) that allows for
disposal of PCB bulk product waste under asphalt as part of a roadbed.
Add Flexible Provisions for Emergency Situations
EPA is adding new provisions for emergency situations under Sec.
761.66 to allow individuals to request a waiver from specific
requirements of Sec. Sec. 761.60, 761.61, 761.62, and 761.65, when
necessitated by an emergency situation. EPA is also adding two
provisions to the existing PCB Spill Cleanup Policy in 40 CFR part 761,
subpart G, that allow for more flexible requirements for cleanup of
spills caused by and managed during emergency situations, such as
hurricane or floods.
Harmonize General Disposal Requirements for PCB Remediation Waste
EPA is amending Sec. 761.50(b)(3)(ii) to remove a phrase that was
added erroneously in 1998, which could imply that waste with <50 parts
per million (ppm) PCBs that meets the definition of PCB remediation
waste in Sec. 761.3 is not regulated for cleanup and/or disposal.
Make Changes To Improve Regulatory Implementation
EPA is making several supplemental amendments to improve
implementation of existing requirements, clarify regulatory ambiguity,
and correct technical errors in the PCB regulations.

II. Background

A. General Background on Polychlorinated Biphenyls (PCBs) and This
Rulemaking

What are PCBs?
PCBs are a group of man-made organic chemicals known as chlorinated
hydrocarbons, which consist of carbon, hydrogen, and chlorine atoms.
PCBs were manufactured in the United States from 1929 until
manufacturing was banned in 1979, with certain time-limited exemptions
from the statutory prohibition that were granted by rule. Note that the
PCB regulations also provide for excluded manufacturing processes, as
defined in 40 CFR 761.3, which include inadvertent generation. The
number of chlorine atoms and their location in a PCB molecule determine
many of its physical and chemical

[[Page 59664]]

properties. PCBs have no known taste or smell, and range in consistency
from thin, light-colored liquids to yellow or black waxy solids. Due to
their non-flammability, chemical stability, high boiling point and
electrical insulating properties, PCBs were previously used in hundreds
of industrial and commercial applications including: electrical, heat
transfer and hydraulic equipment; plasticizers in paints, plastics and
rubber products; pigments, dyes and carbonless copy paper; and other
industrial applications. The PCBs used in these products were chemical
mixtures made up of a variety of individual chlorinated biphenyl
components known as congeners. Most commercial PCB mixtures are known
in the United States by their industrial trade names, the most common
being Aroclor. Please visit <a href="https://www.epa.gov/pcbs/learn-about-polychlorinated-biphenyls-pcbs">https://www.epa.gov/pcbs/learn-about-polychlorinated-biphenyls-pcbs</a> for more information.
PCB Exposures and Health Effects 1 2 3
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\1\ Thomas, Xue, Williams, Jones, and Whitaker.
``Polychlorinated Biphenyls (PCBs) in School Buildings: Sources,
Environmental Levels, and Exposures''; Office of Research and
Development, National Exposure Laboratory; Washington, DC September
2012.
\2\ Agency for Toxic Substances and Disease Registry (ATSDR).
Toxicological Profile for Polychlorinated Biphenyls (PCBs); U.S.
Department of Health and Human Services, Public Health Service,
Agency for Toxic Substances and Disease Registry. November 2000.
\3\ ATSDR. Addendum to the Toxicological Profile for
Polychlorinated Biphenyls; U.S. Department of Health and Human
Services, Public Health Service, Agency for Toxic Substances and
Disease Registry. April 2011.
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PCBs are persistent in the environment and can cause both acute and
chronic health effects. Short-term exposure to high concentrations of
PCBs can lead to skin conditions such as acne and rashes and may be
associated with decreased liver function, neurological effects, and
gastrointestinal effects. These high levels of exposure are generally
rare in the general population. Chronic exposure to lower
concentrations of PCBs may also cause health effects, as PCBs can
accumulate in people over time. In animal studies, PCBs have been shown
to cause effects on the immune, reproductive, nervous, hepatic, and
endocrine systems. PCBs have also been shown to cause cancer in
animals. Some studies in humans provide supportive evidence for some of
these health effects. Studies also show that PCBs in pregnant women can
affect their children's birth weight, short-term memory, and learning.
Also, because of potential neurotoxic and endocrine effects, there is
concern regarding children's exposures to PCBs.
PCBs are highly persistent in the environment. As such, they are
still present in soils and sediments at many locations and may be found
at low levels in ambient air and water, even decades after their
production was banned. PCBs can be released into the environment from
hazardous waste sites, illegal or improper disposal of industrial
wastes and consumer products, leaks from old electrical transformers
and capacitors containing PCBs and burning of some wastes in
incinerators, among other sources. PCBs bioaccumulate and may be
present in foods that people consume, such as fish, meat, and dairy
products. Dietary consumption of contaminated foods is believed to be
an important route of background exposure.
Laws and Regulations
This final rule is issued pursuant to section 6(e) of the Toxic
Substances Control Act, 15 U.S.C. 2605(e). Section 6(e)(1)(A) gives EPA
the authority to promulgate rules regarding the disposal of PCBs (15
U.S.C. 2605(e)(1)(A)). TSCA section 6(e)(2) and (e)(3) generally
prohibit the manufacture, processing, distribution in commerce, and use
(other than totally enclosed use) of PCBs (15 U.S.C. 2605(e)(2) and
(e)(3)). TSCA section 6(e)(2)(B) gives EPA the authority to authorize
the use of PCBs in other than a totally enclosed manner based on a
finding of no unreasonable risk of injury to health or the environment
(15 U.S.C. 2605(e)(2)(B)). TSCA section 6(e)(3)(B) provides that any
person may petition EPA for an exemption from the prohibition on the
manufacture, processing, and distribution in commerce of PCBs (15
U.S.C. 2605(e)(3)(B)). EPA may grant an exemption based on findings
that an unreasonable risk of injury to health or the environment will
not result, and that the petitioner has made good faith efforts to
develop a substitute for PCBs.
The PCB regulations can be found in Title 40 of the Code of Federal
Regulations (CFR) in Part 761. For useful interpretations of the
regulations as well as answers to frequently asked questions, please
visit <a href="https://www.epa.gov/pcbs/policy-and-guidance-polychlorinated-biphenyl-pcbs">https://www.epa.gov/pcbs/policy-and-guidance-polychlorinated-biphenyl-pcbs</a>.

B. Assumptions and Terminology Used in Discussion of Various Methods

Sources of the Methods
There are two important sources of EPA methods related to this
rulemaking. The first source is SW-846, also known as The Test Methods
for Evaluating Solid Waste: Physical/Chemical Methods Compendium, which
is EPA's collection of methods for use in complying with the Resource
Conservation and Recovery Act (RCRA). SW-846 is organized into chapters
providing guidance on how to use the methods and groups of methods,
called ``series,'' which are organized by topic. The methods change
over time as updates are published to keep up with evolving analytical
and measurement needs.\4\ The second source is the Clean Water Act
(CWA) Methods, which are laboratory analytical methods, or test
procedures, published by EPA that are used by industries and
municipalities to analyze the chemical, physical, and biological
components of wastewater and other environmental samples.\5\ Methods
for both SW-846 and CWA go through an extensive review and validation
process before they are published and made available.
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\4\ <a href="https://www.epa.gov/hw-sw846">https://www.epa.gov/hw-sw846</a>.
\5\ <a href="https://www.epa.gov/cwa-methods">https://www.epa.gov/cwa-methods</a>.
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Technical Summary of New Methods
EPA Method 3540C--This Method is a procedure for extracting
nonvolatile and semivolatile organic compounds from solids such as
soils, sludges, and wastes. The Soxhlet extraction process ensures
intimate contact of the sample matrix with the extraction solvent. This
method is applicable to the isolation and concentration of water-
insoluble and slightly water-soluble organics in preparation for a
variety of chromatographic procedures. The solid sample is mixed with
anhydrous sodium sulfate, placed in an extraction thimble or between
two plugs of glass wool, and extracted using an appropriate solvent in
a Soxhlet extractor. The extract is then dried, concentrated (if
necessary), and, as necessary, exchanged into a solvent compatible with
the cleanup or determinative step being employed.
EPA Method 3550C--This method describes a procedure for extracting
nonvolatile and semivolatile organic compounds from solids such as
soils, sludges, and wastes. The ultrasonic process ensures intimate
contact of the sample matrix with the extraction solvent. This method
is divided into two procedures, based on the expected concentration of
organic compounds. Low concentration procedure--The sample is mixed
with anhydrous sodium sulfate to form a free-flowing powder. The
mixture is extracted with solvent three times, using ultrasonic
extraction. The extract is separated from the sample by vacuum
filtration or centrifugation. The extract is ready for final
concentration, cleanup, and/or

[[Page 59665]]

analysis. Medium/high concentration procedure--The sample is mixed with
anhydrous sodium sulfate to form a free-flowing powder. This is
extracted with solvent once, using ultrasonic extraction. A portion of
the extract is collected for cleanup and/or analysis.
EPA Method 8082A--This method may be used to determine the
concentrations of polychlorinated biphenyls (PCBs) as Aroclors or as
individual PCB congeners in extracts from solid, tissue, and aqueous
matrices, using open-tubular, capillary columns with electron capture
detectors (ECD) or electrolytic conductivity detectors (ELCD). The
method also may be applied to other matrices such as oils and wipe
samples, if appropriate sample extraction procedures are employed.
EPA Method 3546: Microwave Extraction--This method is known for its
relatively brief extraction time and low equipment costs. In a
microwave extraction, a sample is prepared for extraction by grinding
it to a powder and then loading it into the extraction vessel. The
appropriate solvent system is added to the vessel, which is then
sealed. The extraction vessel containing the sample and solvent system
is then heated to the extraction temperature and is extracted for the
amount of time recommended by the instrument manufacturer. After the
mixture cools, the vessel is opened and the contents are filtered. The
solid material is then rinsed multiple times, and the various solvent
fractions are combined. Finally, the extract may be concentrated, if
necessary, and, as needed, exchanged into a solvent compatible with the
cleanup or determinative procedure to be employed.
EPA Method 3545A: Pressurized Fluid Extraction (PFE)--When
performing a pressurized fluid extraction, a sample is prepared for
extraction either by air drying the sample, or by mixing the sample
with anhydrous sodium sulfate or pelletized diatomaceous earth. The
sample is then ground and loaded into an extraction cell. The
extraction cell containing the ground sample is then heated to the
extraction temperature, pressurized with the appropriate solvent
system, and extracted for the period of time recommended by the
instrument manufacturer. The solvent is then collected from the heated
extraction vessel and allowed to cool. Finally, the extract may be
concentrated, if necessary, and, as needed, exchanged into a solvent
compatible with the cleanup or determinative step being employed.
EPA Method 3541: Automated Soxhlet Extraction--This method shares
many similarities with Manual Soxhlet Extraction (EPA Method 3540C);
however, it takes less time and solvent per sample. When performing an
Automated Soxhlet Extraction, a moist solid sample (e.g., soil/sediment
samples) may be air-dried and ground prior to extraction or chemically
dried with anhydrous sodium sulfate. The prepared sample is then
extracted using 1:1 acetone:hexane in the automated Soxhlet system.
EPA Method 3510C: Separatory Funnel Liquid-Liquid Extraction--This
method describes a procedure for isolating organic compounds from
aqueous samples. The method also describes concentration techniques
suitable for preparing the extract for the appropriate determinative
methods. A measured volume of sample, usually 1 liter, at a specified
pH, is serially extracted with methylene chloride using a separatory
funnel. The extract is dried, concentrated (if necessary), and, as
necessary, exchanged into a solvent compatible with the cleanup or
determinative method to be used.
EPA Method 3520C: Continuous Liquid-Liquid Extraction--This method
describes a procedure for isolating organic compounds from aqueous
samples. The method also describes concentration techniques suitable
for preparing the extract for the appropriate determinative steps.
Method 3520 is designed for extraction solvents with greater density
than the sample. A measured volume of sample, usually 1 liter, is
placed into a continuous liquid-liquid extractor, adjusted, if
necessary, to a specific pH, and extracted with organic solvent for 18-
24 hours. The extract is dried, concentrated (if necessary), and, as
necessary, exchanged into a solvent compatible with the cleanup or
determinative method being employed.
EPA Method 3535A: Solid-Phase Extraction (SPE)--This is a procedure
for isolating target organic analytes from aqueous samples using solid-
phase extraction (SPE) media. It describes conditions for extracting a
variety of organic compounds from aqueous matrices that include
groundwater, wastewater, and Toxicity Characteristic Leaching Procedure
(TCLP) leachates. The extraction procedures are specific to the
analytes of interest and vary by group of analytes and type of
extraction media.
ASTM D482-13--This test method covers the determination of ash in
the range 0.010% to 0.180% by mass, from distillate and residual fuels,
gas turbine fuels, crude oils, lubricating oils, waxes, and other
petroleum products, in which any ash-forming materials present are
normally considered to be undesirable impurities or contaminants (Note
1). The test method is limited to petroleum products which are free
from added ash-forming additives, including certain phosphorus
compounds
ASTM D5373-16--Test Method A covers the determination of carbon in
the range of 54.9% to 84.7%, hydrogen in the range of 3.25% to 5.10%,
and nitrogen in the range of 0.57% to 1.80% in the analysis samples
(8.1) of coal and of carbon in analysis samples of coke in the range of
86.6% to 97.9%. Test Method B covers the determination of carbon in
analysis samples of coal in the range of 58.0% to 84.2%, and carbon in
analysis samples of coke in the range of 86.3% to 95.2%.
ASTM D3278-96(R2011)--These test methods cover procedures for
determining whether a material does or does not flash at a specified
temperature or for determining the lowest finite temperature at which a
material does flash when using a small scale closed-cup apparatus.2 The
test methods are applicable to paints, enamels, lacquers, varnishes,
and related products having a flash point between 0 and 110 [deg]C (32
and 230 [deg]F) and viscosity lower than 150 St at 25 [deg]C (77
[deg]F).
ASTM E258-67(R87)--This test method covers the determination of
total nitrogen in nitrogen-containing organic compounds. This test
method is not applicable for use on materials containing N-O, N-N
linkages.
ASTM D4059-00--This test method describes a quantitative
determination of the concentration of polychlorinated biphenyls (PCBs)
in electrical insulating liquids by gas chromatography. It also applies
to the determination of PCB present in mixtures known as askarels, used
as electrical insulating liquids.
ASTM D8174-18--This test method covers the procedure for a flash
point test, within the range of -20 to 70 [deg]C, of liquid wastes
using a small-scale closed cup tester. This standard measures the
ignitability properties of liquid wastes (which may be any discarded
material), which may include secondary materials, off-specification
products, and materials containing free liquids recovered during
emergency response actions.
ASTM D8175-18--This test method covers the procedure for a finite
flash point test, within the range of 20 to 70 [deg]C, of liquid wastes
using a manual or automated Pensky-Martens closed cup tester. This test
method contains two procedures and is applicable to liquid waste,
liquid phase(s) of multi-phase waste, liquid waste with suspended
solids, or liquid waste that tends to form a surface film under test
conditions.

[[Page 59666]]

Terminology of the Methods
To avoid confusion with the variety of methods discussed, the
source of each method, and the numbering of the methods, EPA is using
streamlined terminology in this preamble to improve its readability.
For example, rather than stating ``SW-846, Test Methods for Evaluating
Solid Waste, EPA Method 3540C (Soxhlet Extraction)'' each time this
method is discussed, the preamble may refer to ``Method 3540C'' or
``Method 3540C (Soxhlet Extraction)'' instead. See Table 1 for a list
of all methods referenced in this document.
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\6\ U.S. EPA, Method 3510C Separatory Funnel Liquid-Liquid
Extraction. Office of Land and Emergency Management, Office of
Resource Conservation and Recovery, Materials Recovery and Waste
Management Division (5303P). Washington, DC December 1996.
\7\ U.S. EPA, Method 3520C Continuous Liquid-Liquid Extraction.
Office of Land and Emergency Management, Office of Resource
Conservation and Recovery, Materials Recovery and Waste Management
Division (5303P). Washington, DC December 1996.
\8\ U.S. EPA, Method 3535A Solid-Phase Extraction. Office of
Land and Emergency Management, Office of Resource Conservation and
Recovery, Materials Recovery and Waste Management Division (5303P).
Washington, DC February 2007.
\9\ U.S. EPA, Method 3541 Automated Soxhlet Extraction. Office
of Land and Emergency Management, Office of Resource Conservation
and Recovery, Materials Recovery and Waste Management Division
(5303P). Washington, DC September 1994.
\10\ U.S. EPA, Method 3545A Pressurized Fluid Extraction. Office
of Land and Emergency Management, Office of Resource Conservation
and Recovery, Materials Recovery and Waste Management Division
(5303P). Washington, DC February 2007.
\11\ U.S. EPA, Method 3546 Microwave Extraction. Office of Land
and Emergency Management, Office of Resource Conservation and
Recovery, Materials Recovery and Waste Management Division (5303P).
Washington, DC February 2007.

Table 1--Table of EPA Methods Discussed in This Rulemaking
----------------------------------------------------------------------------------------------------------------
Publication
Source Method ID year Method type Method name Final change
----------------------------------------------------------------------------------------------------------------
SW-846.............. Method 3510C \6\. 1996 Extraction....... Separatory Funnel Added to
Liquid-Liquid Regulations.
Extraction.
SW-846.............. Method 3520C \7\. 1996 Extraction....... Continuous Liquid- Added to
Liquid Regulations.
Extraction.
SW-846.............. Method 3535A \8\. 2007 Extraction....... Solid-Phase Added to
Extraction (SPE). Regulations.
SW-846.............. Method 3500B..... 2007 Extraction....... Organic Removed from
Extraction and Regulations.
Sample
Preparation.
SW-846.............. Method 3540C..... 1996 Extraction....... Soxhlet Remains in
Extraction. Regulations.
SW-846.............. Method 3541 \9\.. 1994 Extraction....... Automated Soxhlet Added to
Extraction. Regulations.
SW-846.............. Method 3545A \10\ 2007 Extraction....... Pressurized Fluid Added to
Extraction. Regulations.
SW-846.............. Method 3546 \11\. 2007 Extraction....... Microwave Added to
Extraction. Regulations.
SW-846.............. Method 3550B..... 1996 Extraction....... Ultrasonic Updated to Method
Extraction. 3550C and
Limited to Wipe
Samples Only.
SW-846.............. Method 3550C..... 2007 Extraction....... Ultrasonic Replaces Method
Extraction. 3550B and
Limited to Wipe
Samples Only.
SW-846.............. Method 8082...... 1996 Determinative.... Polychlorinated Removed from
Biphenyls (PCBs) Regulations.
by Gas
Chromatography.
SW-846.............. Method 8082A..... 2007 Determinative.... Polychlorinated Added to
Biphenyls (PCBs) Regulations.
by Gas
Chromatography.
SW-846.............. Method 8275A..... 1996 Extraction and Semivolatile Not Added to
Determinative. Organic Regulations.
Compounds (PAHs
and PCBs) in
Soils/Sludges
and Solid Wastes
Using Thermal
Extraction/Gas
Chromatography/
Mass
Spectrometry (TE/
GC/MS).
CWA................. Method 1668C..... 2010 Extraction and Chlorinated Not Added to
Determinative. Biphenyl Regulations.
Congeners in
Water, Soil,
Sediment,
Biosolids, and
Tissue by HRGC/
HRMS.
CWA................. 608.............. 2006 Extraction and Organochlorine Updated to CWA
Determinative. Pesticides and Method 608.3.
PCBs.
CWA................. 608.3............ 2016 Extraction and Organochlorine Replaces CWA
Determinative. Pesticides and Method 608.
PCBs by GC/HSD.
----------------------------------------------------------------------------------------------------------------

[[Page 59667]]

III. Discussion of Public Comments and the Final Rule

A. Revise Available Extraction Methods for PCBs

Provisions in the Final Rule
EPA proposed to add the following extraction methods to 40 CFR part
761: Method 3541 (Automated Soxhlet Extraction), Method 3545A
(Pressurized Fluid Extraction), and Method 3546 (Microwave Extraction)
for extraction of PCBs from solid matrices; and Method 3510C
(Separatory Funnel Liquid-Liquid Extraction), Method 3520C (Continuous
Liquid-Liquid Extraction), and Method 3535A (Solid-Phase Extraction)
for extraction of PCBs from aqueous matrices. EPA is finalizing these
changes as proposed. EPA is allowing these methods for use, as
applicable, under the following subparts of 40 CFR part 761:
<bullet> Subpart D--Storage and Disposal;
<bullet> Subpart K--PCB Waste Disposal Records and Reports;
<bullet> Subpart M--Determining a PCB Concentration for Purposes of
Abandonment or Disposal of Natural Gas Pipeline: Selecting Sites,
Collecting Surface Samples, and Analyzing Standard PCB Wipe Samples;
<bullet> Subpart N--Cleanup Site Characterization Sampling for PCB
Remediation Waste in Accordance with Sec. 761.61(a)(2);
<bullet> Subpart O--Sampling to Verify Completion of Self-
Implementing Cleanup and On-Site Disposal of Bulk PCB Remediation Waste
and Porous Surfaces in Accordance with Sec. 761.61(a)(6);
<bullet> Subpart P--Sampling Non-Porous Surfaces for Measurement-
Based Use, Reuse, and On-Site or Off-Site Disposal Under Sec.
761.61(a)(6) and Determination Under Sec. 761.79(b)(3);
<bullet> Subpart R--Sampling Non-Liquid, Non-Metal PCB Bulk Product
Waste for Purposes of Characterization for PCB Disposal in Accordance
With Sec. 761.62, and Sampling PCB Remediation Waste Destined for Off-
Site Disposal, in Accordance With Sec. 761.61; and
<bullet> Subpart T--Comparison Study for Validating a New
Performance-Based Decontamination Solvent under Sec. 761.79(d)(4).
These modifications to 40 CFR part 761 can be found in the
regulatory text section towards the end of this final rule; the
specific sections of the PCB regulations affected by these changes are
Sec. Sec. 761.61(a)(5)(i)(B)(2)(iv), 761.253, 761.272, 761.292,
761.358, and 761.395.
EPA is adding Methods 3541, 3545A, and 3546 to the PCB regulations
for extraction of PCBs from solid matrices for several reasons,
including applicability of the methods to PCBs, frequency of use in EPA
and commercial laboratories, and existing data supporting the
effectiveness of the methods. EPA finds, based on reasonably available
information, that these methods are technically sound for the
extraction of PCBs from solid matrices. In addition, EPA is adding
Methods 3510C, 3520C, and 3535A to the PCB regulations for extraction
of PCBs from aqueous matrices because the PCB Regulations do not
specify extraction methods for aqueous matrices. EPA finds, based on
reasonably available information, that these methods are technically
sound for the extraction of PCBs from aqueous matrices. The technical
data and rationale for adding these methods to the PCB regulations can
be found in Section III.A. Expand Available Extraction Methods for PCBs
of the proposed rule ``Alternate PCB Extraction Methods and Amendments
to PCB Cleanup and Disposal Regulations'' (86 FR 58730), which is
included in the docket for this final rulemaking.
Discussion of the Public Comments
Public comments supported the Agency's proposal to add Method 3541
(Automated Soxhlet Extraction), Method 3545A (Pressurized Fluid
Extraction), and Method 3546 (Microwave Extraction) for extraction of
PCBs from solid matrices; and Method 3510C (Separatory Funnel Liquid-
Liquid Extraction), Method 3520C (Continuous Liquid-Liquid Extraction),
and Method 3535A (Solid-Phase Extraction) for extraction of PCBs from
aqueous matrices. Specifically, commenters appreciated the increased
flexibility of extraction methods, higher efficiency of the methods,
reduced laboratory cost, and reduced waste.
EPA agrees with the public comments and is therefore finalizing its
proposal to add these methods to the regulations. EPA finds, based on
reasonably available information, that expanding the options for
alternative extraction methods in the PCB regulations will help the
regulated community investigate, clean up and dispose of PCB waste more
quickly, efficiently, and economically, and in a more environmentally
sound manner.
Background on Extraction Methods for PCBs
The regulated community has long expressed interest in the
availability of alternative extraction methods beyond the two
previously allowed under the PCB regulations--Method 3540C (Soxhlet
Extraction), which is commonly referred to as ``Manual Soxhlet
Extraction'', and Method 3550B (Ultrasonic Extraction).\12\ In
addition, because Ultrasonic Extraction methods do not use heat to
speed up extraction kinetics or improve extraction efficiency, and the
contact time with the solvent is relatively short, they may result in
low bias measurements in some sample types, such as caulk and clay. In
addition, published studies indicate that Method 3550B has the
potential to produce low bias measurements in some solid matrices
compared to other extraction techniques. For more information on this
issue, see Section III.B. Update and Limit the Use of Ultrasonic
Extraction of this final rule.
---------------------------------------------------------------------------

\12\ Allison D. Foley ``Consolidated Petition on Behalf of USWAG
Members to Use Automated Soxhlet Extraction (Method 3541) in
Connection with June 10, 2014 Risk-Based Approvals to Dispose of
Polychlorinated Biphenyl (PCB) Remediation Waste''; March 2015.
---------------------------------------------------------------------------

Manual Soxhlet Extraction was invented in the late 1800s, and the
revised Method 3540C was created in 1996. It is a long-standing,
effective method for PCB extraction from solid matrices; however, it
has slowly been replaced by newer methods in both EPA and commercial
laboratories over time.\13\ This transition has caused problems with
the availability of Manual Soxhlet Extraction in EPA and commercial
laboratories, which could cause delays in getting samples extracted and
analyzed in a timely matter. In addition, further delays could result
because Manual Soxhlet Extraction takes 16-24 hours to complete the
extraction of a limited number of samples, whereas other methods may
take only 2-4 hours, or less. Manual Soxhlet Extraction systems also
typically use heating manifolds with significant footprints that are
commonly operated in fume hoods to limit operator exposure to solvent
vapors, which further restricts laboratory capacity using this
technique.
---------------------------------------------------------------------------

\13\ M.D. Luque de Castro, L.E. Garc[inodot]a-Ayuso. ``Soxhlet
extraction of solid materials: an outdated technique with a
promising innovative future.'' Department of Analytical Chemistry,
Faculty of Sciences, University of Cordoba. Cordoba, Spain. March
1998.
---------------------------------------------------------------------------

In addition, none of the previously allowed methods are applicable
to extraction of PCBs from aqueous samples. Method 8082 was the only
determinative method listed in the PCB regulations for extraction from
aqueous matrices and states that ``[a]queous samples may be extracted
at neutral pH with methylene chloride using either Method 3510
(separatory funnel), Method 3520 (continuous liquid-liquid extraction),
Method 3535A (solid-phase

[[Page 59668]]

extraction) or other appropriate technique or solvents.''

B. Update and Limit the Use of Ultrasonic Extraction

Provisions in the Final Rule
EPA proposed to remove Method 3550B (Ultrasonic Extraction) from
the PCB regulations. However, after reviewing the public comments, EPA
is, instead, updating references to Method 3550B in the PCB regulations
to Method 3550C and limiting the use of Method 3550C to wipe samples
only. Available studies on Ultrasonic Extraction collectively
demonstrate concerns about the inconsistent performance of the method
and the robustness of extractions for certain matrices of interest to
the TSCA PCB Cleanup and Disposal Program for compliance testing.
However, EPA does not have such concerns about use of Ultrasonic
Extraction for wipe samples based on reasonably available information.
The sections of the PCB regulations affected by these changes are
Sec. Sec. 761.61(a)(5)(i)(B)(2)(iv), 761.253, 761.272, 761.292,
761.358, and 761.395.
Discussion of the Public Comments
EPA proposed to remove Method 3550B (Ultrasonic Extraction) from
the PCB regulations because the extraction efficiency may be more
variable than other methods and thus it has a higher potential than
other methods to be conducted improperly. However, several commenters
opposed removing Method 3550B from the PCB regulations. These
commenters all considered this method to be appropriate for at least
some matrix types, such as sand and surface wipe samples. Some comments
suggested that EPA restrict the use of the method for problematic
matrices only, such as clay and caulk. Some comments stated that method
quality controls, such as performance testing, visual observation of
the extraction, or ability to meet the acceptance criteria for the
method, were sufficient to identify whether the method is appropriate
for a given sample. The commenters also voiced concern that removal of
the method from the PCB regulations could lead to logistical problems
and increased costs. Several of these commenters proposed updating the
reference from Method 3550B to Method 3550C, which is an updated
version of Method 3550B.
The Agency disagrees with comments that suggest EPA restrict the
use of Method 3550B or 3550C for problematic matrices only, as it would
be inefficient and complicated to make such a decision on a case-by-
case basis--for example, by prohibiting the method to be used on
certain types of soils, or by specifying the maximum silt or clay
content of soil samples for which the method is permissible to use. The
Agency also disagrees with comments that the method quality controls
provide all the information needed to distinguish acceptable and poor
extraction efficiency since PCBs may be more deeply integrated into
soils or other solid samples and may be more difficult to efficiently
extract. Based on the available studies, use of Ultrasonic Extraction
in some solid matrices is likely to produce low bias measurements that
are not otherwise identified with the method quality controls. This low
bias may lead to decision errors that could otherwise be avoided by
using the alternative extraction methods EPA is adding in this
rulemaking, all of which use heat and a longer solvent contact time to
speed up extraction kinetics and improve extraction efficiency.
However, the Agency agrees with comments indicating the method is
appropriate for wipe samples, because PCBs do not have the same
extraction kinetics or extraction efficiency limitations from wipe
samples containing relatively small amounts of particulates as they may
have in some types of bulk solid samples (e.g., wet clay or caulk). The
Agency also agrees with comments proposing that EPA update Method 3550B
to Method 3550C, which is the updated version of Method 3550B. The
Agency is therefore allowing use of Method 3550C for wipe samples only.
Allowing use of this extraction method on wipe samples, which are a
very commonly extracted item, addresses both commenters' concerns about
cost and logistical problems that completely removing this extraction
method from the PCB regulations could cause and the Agency's concerns
regarding use of this method on other matrices.
Background on This Issue
Method 3550C (Ultrasonic Extraction) is an updated version of
Method 3550B. Use of Method 3550B was previously allowed in the PCB
regulations. The text in Method 3550B and Method 3550C includes caveats
that ultrasonic extraction may not be as rigorous as other extraction
methods for soils/solids and highlights the importance of following the
method explicitly. By comparison, this issue is generally not mentioned
or highlighted in other SW-846 methods. Method 3550C further
emphasizes, beyond what is stated in Method 3550B, the crucial
importance of conducting the method properly, in line with the
manufacturer's instructions regarding operational settings.\14\ For
more information on the technical aspects of ultrasonic extraction, see
Section III.A.2. Technical Summary of Relevant Extraction Methods of
the proposed rule ``Alternate PCB Extraction Methods and Amendments to
PCB Cleanup and Disposal Regulations'' (86 FR 58730), which is included
in the docket for this final rulemaking.
---------------------------------------------------------------------------

\14\ Section 1.4 of Method 3550C states, ``Because of the
limited contact time between the solvent and the sample, ultrasonic
extraction may not be as rigorous as other extraction methods for
soils/solids. Therefore, it is critical that the method (including
the manufacturer's instructions) be followed explicitly, in order to
achieve the maximum extraction efficiency. See Sec. 11.0 for a
discussion of the critical aspects of the extraction procedure.
Consult the manufacturer's instructions regarding specific
operational settings.''
---------------------------------------------------------------------------

C. Revise Available Determinative Methods for PCBs

Provisions in the Final Rule
EPA proposed to add three determinative methods to the PCB
regulations: Method 8082A (Polychlorinated Biphenyls (PCBs) By Gas
Chromatography), Method 8275A (Semivolatile Organic Compounds (PAHs and
PCBs) In Soils/Sludges and Solid Wastes Using Thermal Extraction/Gas
Chromatography/Mass Spectrometry (TE/GC/MS)), and Method 1668C
(Chlorinated Biphenyl Congeners in Water, Soil, Sediment, Biosolids and
Tissue by HRGC/HRMS).
EPA also proposed to update the outdated referenced methods in
Sec. 761.60(g)(1)(iii) from Method 608 to Method 608.3, and Method
8082 to Method 8082A.
The Agency is adding Method 8082A to the PCB regulations and
updating Method 608 to Method 608.3 in Sec. 761.60(g)(1)(iii), as
proposed. The Agency is not adding Method 8275A or Method 1668C to the
PCB regulations, due to the public comments summarized below. The main
deciding factor is that the regulated community expressed satisfaction
with using Method 8082 and/or Method 8082A for analysis and indicated
that there is not a need to use other methods on a broad scale.
Although EPA is not adding Method 8275A and Method 1668C as
determinative methods to the regulations, the Agency notes that these
methods, as well as other methods that have been published since the
proposed rule, such as CWA Method 1628, may be appropriate and useful
in certain situations. For example, a PCB congener analysis method
(such as Method 1668C) may be preferred based on the

[[Page 59669]]

formulation of PCBs present in the material being analyzed per Sec.
761.1(b)(2) and may be acceptable under a Sec. Sec. 761.60(e),
761.61(c), 761.62(c), or 761.79(h) approval. EPA notes that a person
may either conduct a Subpart Q comparison study or submit an
appropriate application (i.e., under Sec. Sec. 761.60(e), 761.61(c),
761.62(c) or 761.79(h)) requesting to use an alternative determinative
method for their project.
The sections of the PCB regulations affected by these changes are
Sec. Sec. 761.60(g)(1)(iii), 761.61(a)(5)(i)(B)(2)(iv), 761.253,
761.272, 761.292, 761.358, and 761.395.
Discussion of the Public Comments
Commenters generally opposed adding Method 8275A and Method 1668C
to the PCB regulations but did not object to adding Method 8082A or
updating Method 608 to Method 608.3.
Commenters pointed out that Method 8275A has a very small sample
size (0.003-0.25 grams), which could lead to problems obtaining
sufficient sensitivity. Comments also noted that testing such a small
sample mass may lead to greater concerns about whether sample
measurements are representative. Other solid sample preparation methods
included in this rule specify a sample size of 10-30 grams, which is
less likely to be subject to subsampling bias. In addition, comments
noted that Method 8275A is not specific to quantitative analysis of
PCBs as it was validated for simultaneous analysis of select PCB
congeners and polycyclic aromatic hydrocarbons (PAHs). The comments
also indicated that there is a lack of commercial laboratory capacity
to perform this method, and that the method is not available at any
National Environmental Laboratory Accreditation Program (NELAP)
accredited laboratories. The comments also expressed concern that the
drying and sieving process for the method could result in volatile loss
of mono- and di-chlorobiphenyls, which is a common problem for any
method which uses air drying. The comments identified that EPA Method
8275A has a limited scope of target analytes, and the method only
specifically includes 19 out of 209 PCB congeners. Lastly, the comments
expressed concern about the use of isotopically labeled PAHs in Method
8275A as internal standards for PCBs, which may lead to measurement
bias if they do not perform similarly in a given sample. Considering
these comments, EPA has decided not to finalize changes related to
Method 8275A.
Regarding Method 1668C, commenters were primarily concerned about
the availability and cost of using this method. Comments indicated that
the high-resolution mass spectrometer used for this method is not
widely available, and that the analytical costs are high with long
turnaround times. The commenters were concerned about the parts-per-
quadrillion detection limits, which are orders of magnitude more
sensitive than typically needed to demonstrate compliance with the PCB
regulations. The comments also noted that, due to these very low
detection limits, this method is more likely to experience laboratory
background contamination which could lead to problems with data
interpretation. The commenters were also concerned with the fact that
the method validation study for Method 1668C did not include soil or
sediment matrices, and the method does not identify how to report total
PCBs. Lastly, the comments noted that the regulated community never
expressed concerns regarding availability of determinative methods
beyond EPA Method 8082 and/or EPA Method 8082A. In light of these
comments, EPA has decided not to finalize changes related to Method
1668C.
EPA did not receive any substantive comments on its proposal to
update Method 608 to Method 608.3 and Method 8082 to Method 8082A in
Sec. 761.60(g)(1)(iii), and thus is finalizing those changes largely
as proposed.
Background on This Issue
Previously, the PCB regulations listed Method 8082 (Polychlorinated
Biphenyls (PCBs) by Gas Chromatography) as the only determinative
method for PCB samples.\15\ The only exception in the PCB regulations
was at Sec. 761.60(g)(1)(iii), which stated that ``[a]ny gas
chromatographic method that is appropriate for the material being
analyzed may be used'' and then listed several available determinative
methods.\16\ However, this section in the PCB regulations is restricted
to samples of mineral oil dielectric fluid (MODEF) and waste oil (see
Sec. Sec. 761.60(g)(1) and 761.60(g)(2)). Previously, all other
samples were required to be analyzed using Method 8082, and any
alternative determinative method would require EPA approval. EPA had
not received any significant concerns from the regulated community
regarding the availability of determinative methods; however, EPA
investigated additional determinative methods to include in the
proposed rulemaking to provide a greater number of technically sound
options for the regulated community.
---------------------------------------------------------------------------

\15\ U.S. EPA, Method 8082 Polychlorinated Biphenyls (PCBs) By
Gas Chromatography. Office of Land and Emergency Management, Office
of Resource Conservation and Recovery, Materials Recovery and Waste
Management Division (5303P). Washington, DC. December 1996.
\16\ The regulatory text at Sec. 761.60(g)(1)(iii) previously
listed the following methods: ``. . . EPA Method 608,
``Organochlorine Pesticides and PCBs'' at 40 CFR part 136, Appendix
A;'' EPA Method 8082, ``Polychlorinated Biphenyls (PCBs) by
Capillary Column Gas Chromatography'' of SW-846, ``OSW Test Methods
for Evaluating Solid Waste,'' which is available from NTIS; and ASTM
Standard D-4059, ``Standard Test Method for Analysis of
Polychlorinated Biphenyls in Insulating Liquids by Gas
Chromatography,'' which is available from ASTM.''
---------------------------------------------------------------------------

Additionally, the methods previously referenced in Sec.
761.60(g)(1)(iii) were outdated and did not reflect the most current
versions. By updating these references, EPA is not requiring that only
the new specifically referenced methods be used, as Sec.
761.60(g)(1)(iii) provides that ``[a]ny gas chromatographic method that
is appropriate for the material being analyzed may be used.'' EPA
believes this update will avoid confusion by referencing the most up-
to-date methods while still allowing flexibility in this regulatory
provision.

D. Revise Performance-Based Disposal Under Sec. 761.61(b)

Provisions in the Final Rule
EPA proposed to amend Sec. 761.61(b) to add performance-based
cleanup standards, while maintaining this option as one which does not
require prior EPA approval and thus remains an expedient option for
those entities removing PCB remediation waste from the site.
Specifically, EPA proposed to amend Sec. 761.61(b) to include explicit
conditions for on-site remediation and cleanup of PCB remediation
waste.
The Agency is finalizing the provisions in Sec. 761.61(b) largely
as proposed, with some minor changes and clarifications. The final rule
includes provisions that: (1) establish cleanup levels; (2) prohibit
use of Sec. 761.61(b) where cleanup sites are near sensitive
populations or environments; (3) establish verification sampling
requirements; (4) establish recordkeeping requirements; (5) establish a
30-day post-cleanup notification requirement; and (6) allow disposal of
non-liquid PCB remediation waste in RCRA Subtitle C landfills.
First, EPA is establishing cleanup levels for sites remediated
under a Sec. 761.61(b) performance-based cleanup. The regulations
previously did not reference a specific cleanup level. The

[[Page 59670]]

preamble to the proposed PCB Megarule (59 FR 62788, 62796; Dec. 6,
1994) explained that Sec. 761.61(b) ``could be used where all PCB
remediation waste would be removed from the environment, or where
remediation levels were established elsewhere in these rules.'' In
guidance, EPA has interpreted ``all PCB remediation waste'' to mean PCB
remediation waste at >1 ppm PCBs.\17\ Identifying a numerical cleanup
level in the regulations will help responsible parties understand the
circumstances under which they could expect to have no further cleanup
responsibility at the site under Sec. 761.61(b). EPA is therefore
establishing the following cleanup levels directly in Sec. 761.61(b):
<=1 ppm for bulk PCB remediation waste and porous surfaces; the
concentrations specified in Sec. 761.79(b)(1) and (2) for liquids; and
the concentrations specified in Sec. 761.79(b)(3) for nonporous
surfaces. See Sec. 761.61(b)(1)(ii).
---------------------------------------------------------------------------

\17\ Managing Remediation Waste From Polychlorinated Biphenyls
(PCBs) Cleanups, <a href="https://www.epa.gov/pcbs/managing-remediation-waste-polychlorinated-biphenyls-pcbs-cleanups">https://www.epa.gov/pcbs/managing-remediation-waste-polychlorinated-biphenyls-pcbs-cleanups</a>.
---------------------------------------------------------------------------

Second, EPA is adding an applicability provision in Sec. 761.61(b)
to exclude the use of Sec. 761.61(b) at sites with specific
characteristics that merit additional consideration by EPA. In the PCB
Megarule (63 FR 35384; June 29, 1998), EPA established that certain
types of sensitive environments and populations would not be well-
served by the cleanup levels prescribed in Sec. 761.61(a)(4) and
excluded those sites from the applicability of Sec. 761.61(a). EPA
also identified certain types of sites that, while subject to Sec.
761.61(a), may call for more stringent cleanup levels. See Sec.
761.61(a)(1) and (a)(4)(vi). The PCB Spill Cleanup Policy includes
similar provisions. See Sec. 761.120(a)(2) and (d)(2). Because
performance-based cleanup under Sec. 761.61(b) will not require
consultation with EPA, the Agency is establishing a list of objective
characteristics that excludes a site for cleanup using performance-
based cleanup standards. This list largely mirrors the applicability
section in Sec. 761.61(a)(1) and the characteristics in Sec. Sec.
761.61(a)(4)(vi), 761.120(a)(2), and 761.120(d)(2) of sites that may
require more stringent cleanup levels or site-specific determinations.
It also excludes sites where PCB remediation waste is found within the
100-year floodplain, which allows EPA to give additional consideration
to the protection of waterways through cleanup under Sec. 761.61(a)
and/or Sec. 761.61(c), and to the impacts of climate change on the
spread of PCB contamination through flooding. See Sec.
761.61(b)(1)(i).
Third, EPA is requiring verification sampling in accordance with
the PCB regulations to ensure that the cleanup levels established in
Sec. 761.61(b) have been met. Verification sampling must be conducted
in accordance with Subpart O for bulk PCB remediation waste and porous
surfaces, Subpart P for nonporous surfaces, and Sec. 761.269 for
liquid PCB remediation waste. The concentration in every required
sample analysis result must be below the specified cleanup levels for
the cleanup to be complete. See Sec. 761.61(b)(1)(iii).
Fourth, EPA is incorporating explicit recordkeeping requirements
into performance-based cleanup. Previously, responsible parties using
Sec. 761.61(b) were only subject to the applicable recordkeeping
requirements in Sec. 761.180(a) for PCB remediation waste shipped off-
site. Under the new provisions for performance-based cleanup,
responsible parties must follow the recordkeeping requirements in the
PCB Spill Cleanup Policy at Sec. 761.125(c)(5) in addition to the
requirements in Sec. 761.180(a). See Sec. 761.61(b)(1)(iv).
Fifth, EPA is incorporating a 30-day post-cleanup notification
requirement into the performance-based cleanup provisions. Under
performance-based cleanup and disposal, sites may be remediated without
EPA involvement. Post-cleanup notification allows regulators to
evaluate performance to ensure that conditions, such as cleanup levels,
are met. The notification must include information about the site and
point of contact, the disposal facility and waste shipments, a summary
of the required records, and a certification, as defined in Sec.
761.3, from the responsible party. While EPA proposed to require
responsible parties to send a notification to EPA within 14 days of the
final shipment of waste offsite for disposal from a site cleaned up
under Sec. 761.61(b), based on the public comments summarized below,
this final rule revises the notification period to 30 days. See Sec.
761.61(b)(1)(v).
Sixth, EPA is adding a RCRA Subtitle C landfill disposal option for
non-liquid PCB remediation waste under Sec. 761.61(b). RCRA Subtitle C
landfills are already allowed to be used for the disposal of bulk PCB
remediation waste under Sec. 761.61(a)(5)(i)(B)(2)(iii) and for PCB
bulk product waste under Sec. 761.62(a)(3). EPA has previously stated
in the preamble to the PCB Megarule that ``EPA added RCRA Subtitle C
landfills as a disposal option for PCB bulk product waste because they
are designed and operated in the same manner as TSCA chemical waste
landfills.'' \18\ As discussed further below, RCRA Subtitle C and TSCA
chemical waste landfill regulations authorize the imposition of
comparable protective conditions, and EPA believes that allowing this
waste to go to RCRA Subtitle C landfills is protective and presents no
unreasonable risk to human health or the environment. Moreover, since
EPA has already determined that RCRA Subtitle C landfills are
protective for PCB bulk product waste, which typically contains very
high concentrations of PCBs, the Agency finds that disposal of non-
liquid PCB remediation waste in RCRA Subtitle C landfills would also be
protective, as non-liquid PCB remediation waste typically contains
concentrations of PCBs similar to or lower than PCB bulk product waste.
By adding these landfills to the list of allowable disposal options for
certain PCB remediation wastes, EPA anticipates that transportation
costs will decrease as the distance to the closest allowable disposal
option diminishes. Furthermore, the disposal cost per ton of non-
liquid, nonhazardous PCB waste is generally lower at RCRA Subtitle C
landfills than it is at TSCA chemical waste landfills. More information
on the estimated costs is available in the Economic Assessment. See
Sec. 761.61(b)(2)(ii)(A).
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\18\ 63 FR 35384, 35410-35411; June 29, 1998.
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Finally, EPA is revising the language in Sec. 761.125(a)(2) of the
PCB Spill Cleanup Policy to ensure that the addition of RCRA Subtitle C
landfills to Sec. 761.61(b) does not affect the Spill Cleanup Policy.
Expanding the disposal options available under the Spill Cleanup Policy
is not an objective of this rulemaking and is outside the scope of this
rulemaking. While EPA proposed to revise the language in the Spill
Cleanup Policy to specify that only disposal facilities with TSCA
approvals issued under Subpart D of the PCB regulations could be used
for disposal of cleanup debris and other materials resulting from
cleanup under the Policy, based on the public comment summarized below,
EPA has modified the revision to ensure that Subpart D storage and
disposal options other than disposal in RCRA Subtitle C landfills
remain. See Sec. 761.125(a)(2).
EPA notes that the above changes to Sec. 761.61(b) will not impact
a responsible party's ability to pair performance-based disposal under
Sec. 761.61(b)(2) with on-site cleanup under Sec. 761.61(a), Sec.
761.61(c), or Sec. 761.77 (e.g., state-authorized cleanup under a
coordinated approval). The regulatory text explicitly preserves the
ability to use

[[Page 59671]]

Sec. 761.61(b)(2) solely as a disposal provision. See introductory
paragraph in Sec. 761.61(b).
For more information on the changes to Sec. 761.61(b), see Section
III.D. Revise Performance-Based Disposal Under Sec. 761.61(b) of the
proposed rule ``Alternate PCB Extraction Methods and Amendments to PCB
Cleanup and Disposal Regulations'' (86 FR 58730), which is included in
the docket for this final rulemaking.
Discussion of the Public Comments
Comments were supportive of EPA's proposal to establish cleanup
levels for sites remediated under a Sec. 761.61(b) performance-based
cleanup, and EPA is finalizing this change as proposed.
EPA proposed to limit applicability of Sec. 761.61(b) at sites
with characteristics that may warrant more stringent cleanup levels or
site-specific determinations. Several commenters expressed concern that
prohibiting use of Sec. 761.61(b) at sites that are adjacent to,
contain, or are proposed to be redeveloped to contain the sensitive
populations or environments listed in Sec. 761.61(b)(1)(i)(A)(7)
unnecessarily limits the applicability of the Sec. 761.61(b)
performance-based cleanup option and that the Sec. 761.61(b) cleanup
levels will ensure no unreasonable risk at these sites. EPA disagrees
with these comments. In EPA's experience addressing these types of
sites under Sec. 761.61(c), EPA frequently sees complex risks and
exposure pathways that require extensive collaboration between EPA and
responsible parties. Based on this experience, the Agency does not have
confidence that these sites could be protectively managed under the
performance-based cleanup option without EPA involvement and believes
that the Sec. 761.61(b) applicability provisions, which largely mirror
existing provisions in Sec. Sec. 761.61(a)(1), 761.61(a)(4)(vi),
761.120(a)(2), and 761.120(d)(2), are appropriately limited. EPA does,
however, recognize the need for clarification in Sec.
761.61(b)(1)(i)(A)(7) based on comments that questioned whether the
term ``adjacent to'' in that provision referred to adjacency to a
cleanup site or an entire property or facility containing a cleanup
site. EPA has revised Sec. 761.61(b)(1)(i)(A)(7) to clarify that the
provision refers to a cleanup site, as defined in Sec. 761.3.
EPA proposed to add verification sampling requirements to Sec.
761.61(b). Some commenters sought flexibility in verification sampling
to account for site-specific circumstances and for other reasons. While
EPA recognizes the desire for flexibility, because Sec. 761.61(b) is a
self-implementing cleanup option without EPA involvement, the Agency
believes that prescriptive verification sampling requirements are
appropriate, and EPA is finalizing this change as proposed.
EPA proposed to add recordkeeping requirements from Sec.
761.125(c)(5) of the PCB Spill Cleanup Policy to Sec. 761.61(b). EPA
received no comments regarding these recordkeeping requirements and
thus is finalizing this change as proposed.
EPA proposed to add a post-cleanup notification requirement to
Sec. 761.61(b) that would require notification within 14 days of the
final shipment of waste offsite for disposal from a site cleaned up
under Sec. 761.61(b). Commenters considered the 14-day notification
period to be too short and sought either 30 or 60 days. EPA agrees with
commenters on the need for more time to obtain all necessary
information to include in the notification, including processing
verification samples and confirming the manifests. EPA is therefore
finalizing a post-cleanup notification requirement that requires
notification within 30 days of final shipment of waste offsite for
disposal from a site cleaned up under Sec. 761.61(b). EPA finds 30
days will allow sufficient time to obtain all necessary information
while providing EPA timely notification of cleanups completed under
Sec. 761.61(b).
EPA proposed to allow for disposal of non-liquid PCB remediation
waste in RCRA Subtitle C permitted landfills under Sec. 761.61(b).
Most of the commenters supported the addition of RCRA Subtitle C
landfills to the list of allowable disposal options for non-liquid PCB
remediation waste. One commenter noted potential differences in
monitoring, recordkeeping, and reporting requirements for PCBs between
RCRA Subtitle C landfills and TSCA chemical waste landfills. In
particular, the commenter noted that environmental monitoring
requirements for RCRA Subtitle C landfills are based on RCRA hazardous
waste program requirements, which are not the same as the monitoring
requirements for TSCA chemical waste landfills under Sec. 761.75
(i.e., surface water, groundwater, leachate, and secondary leachate
monitoring of PCBs, pH, specific conductance, and chlorinated
organics). The commenter noted that additional monitoring parameters
for TSCA chemical waste landfills may include soil, sediment, and
ambient air monitoring, where necessary, to ensure protection of the
environment from PCBs. The commenter also noted that in some States,
PCBs are not a hazardous waste, which could leave State programs with a
limited ability to implement environmental monitoring of PCBs at RCRA
Subtitle C landfills.
PCBs are hazardous constituents under 40 CFR part 261, appendix
VIII and groundwater monitoring constituents under 40 CFR part 264,
appendix IX; therefore, they are regulated under the RCRA regulations
and under facility permits. Specifically, they are subject to the
comprehensive scheme for detecting and responding to releases to
groundwater from hazardous waste management units at facilities
permitted under RCRA Subtitle C. See 40 CFR part 264, subpart F. Among
other things, the facility must promptly report to the Regional
Administrator any detected releases (see, e.g., Sec. Sec.
264.98(g)(1), 264.99(h)) and maintain records of groundwater monitoring
data (Sec. 264.97(j)). In addition, the RCRA regulations contain
requirements for a liner system (under Sec. 264.301(a)(1)), leachate
collection system (under Sec. 264.301(a)(2)), recordkeeping (under
Sec. 264.73), and reporting (under Sec. Sec. 264.75, 264.76, and
264.77). Subtitle C landfills must also be permitted under RCRA Sec.
3005 and 40 CFR part 270. The permit would flesh out these regulatory
provisions to specify as appropriate, among other things, requirements
to analyze groundwater samples for PCBs identified as constituents to
be monitored and monitor amounts of leachate in the leachate collection
and removal system. In addition to implementing the specific regulatory
requirements, each permit is required to contain additional terms and
conditions that EPA or the authorized State determines to be necessary
to protect human health and the environment. See RCRA Sec. 3005(c)(3);
40 CFR 270.32(b)(2). This authority is comparable to 40 CFR
761.75(c)(3)(ii), under which EPA may include in a TSCA chemical waste
landfill approval any other requirements or provisions that the Agency
finds are necessary to ensure that operation of the chemical waste
landfill does not present an unreasonable risk of injury to health or
the environment from PCBs. It is under this authority that EPA could
require, for example, air monitoring at a chemical waste landfill, a
measure identified by the commenter but not specifically required in
Sec. 761.75. Thus, EPA disagrees that States in which PCBs are not a
hazardous waste could have limited ability to implement environmental
monitoring of PCBs at RCRA Subtitle C landfills. Despite a few minor
variations in monitoring, recordkeeping, and reporting requirements
specified in the RCRA

[[Page 59672]]

Subtitle C and TSCA chemical waste landfill regulations, the
regulations authorize the imposition of comparable protective
conditions, and EPA believes that allowing this waste to go to RCRA
Subtitle C landfills is protective and presents no unreasonable risk to
human health or the environment.
EPA proposed to revise the language in Sec. 761.125(a)(2) of the
PCB Spill Cleanup Policy to ensure that the addition of RCRA Subtitle C
landfills to Sec. 761.61(b) would not affect the Spill Cleanup Policy.
Specifically, EPA proposed to revise the language in the Spill Cleanup
Policy to specify that only disposal facilities with TSCA approvals
issued under Subpart D of the PCB regulations could be used for
disposal of cleanup debris and other materials resulting from cleanup
under the Policy. One commenter warned that the revision, as proposed,
would inadvertently curtail the storage and disposal options for
cleanup debris and other materials under the Policy. EPA agrees with
the comment and has modified the revision to specifically exclude
disposal of cleanup debris and other materials in RCRA Subtitle C
landfills but allow all other storage and disposal conducted in
accordance with the provisions of 40 CFR part 761, subpart D. See Sec.
761.125(a)(2).
Finally, EPA's request for comments on requiring a Sec. 761.61(b)
pre-cleanup notification yielded overwhelmingly opposing comments.
Commenters raised concerns that a pre-cleanup notification would cause
unnecessary delay and negate one of the primary benefits of carrying
out performance-based cleanups, which is the ability to perform the
cleanup without EPA involvement. EPA agrees these concerns have merit
and has decided to take no further action on this issue.
Background on the Issue
There are three options for addressing PCB remediation waste,
listed in Sec. 761.61 under paragraphs (a), (b) and (c). Previously,
Sec. 761.61(b) prescribed disposal methods for liquid and non-liquid
PCB remediation waste but did not explicitly require or refer to
cleanup requirements or cleanup levels in the regulations. In contrast,
the PCB remediation waste option in Sec. 761.61(a) for ``self-
implementing on-site cleanup and disposal of PCB remediation waste''
describes in detail the requirements for notification, site
characterization, cleanup levels, cleanup verification, disposal
options, and more. The option in Sec. 761.61(c) for ``risk-based
disposal approval'' allows a person to apply for a risk-based approval
to sample, cleanup, or dispose of PCB remediation waste in a manner
other than prescribed in paragraphs (a) or (b). The language of Sec.
761.61(b) thus did not conform to the other two options in that the
provision did not state the removal requirements of PCB remediation
waste at any specified concentration nor did it provide for procedures
to demonstrate that on-site cleanup is complete.
Before this rulemaking, EPA had stated in guidance related to Sec.
761.61(b) that to be completely unregulated for disposal off-site
without an approval from EPA, PCB remediation waste must contain <1 ppm
PCBs, and that the concentration must not be the result of dilution
during remediation (e.g., by mixing contaminated soil with clean soil
during excavation).\19\ Similarly, if someone were to use Sec.
761.61(b) for disposal of waste but leave PCB remediation waste on-site
>1 ppm, they would still have TSCA obligations for those remaining
materials.\20\
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\19\ PCB Q&A Manual. June 2014. Pg. 91. <a href="https://www.epa.gov/sites/production/files/2015-08/documents/qacombined.pdf">https://www.epa.gov/sites/production/files/2015-08/documents/qacombined.pdf</a>.
\20\ <a href="https://www.epa.gov/pcbs/managing-remediation-waste-polychlorinated-biphenyls-pcbs-cleanups">https://www.epa.gov/pcbs/managing-remediation-waste-polychlorinated-biphenyls-pcbs-cleanups</a>.
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While EPA's regulatory text and preamble statements refer to
Sec. Sec. 761.61(a), (b), and (c) as three alternatives for PCB
cleanup and disposal, the previous absence of cleanup provisions, such
as cleanup levels and sampling requirements, in Sec. 761.61(b) made it
challenging to determine that on-site cleanup is complete and the site
is authorized for use under Sec. 761.30(u).21 22 Clear
regulatory requirements are warranted as EPA estimates that 50 to 60
million kilograms of PCB remediation waste are generated at 430 to 460
sites cleaned up under Sec. 761.61(b) each year.\23\
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\21\ 59 FR 62788, 62796; Dec. 6, 1994.
\22\ 40 CFR 761.61, introductory paragraph.
\23\ Manifest data from 2018 and 2019 were analyzed to estimate
the volume of waste and number of sites cleaned up under Sec.
761.61(b).
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While the new conditions for performance-based cleanup will require
additional effort on the part of responsible parties, the conditions
will also provide them confidence that they are satisfying the
regulatory requirements. As always, failure to properly characterize
PCBs on site is not a defense for noncompliant cleanup and disposal.
Liability for ensuring compliance with Sec. 761.61(b), performance-
based cleanup and disposal, lies with the responsible party. In
addition, while the revisions to Sec. 761.61(b) are designed to be
fully self-implementing, if the remediating party has questions as to
whether a site qualifies to be cleaned up under Sec. 761.61(b)(1)(i)
of this provision, it would be in the remediating party's best
interest, from a compliance assurance perspective, to contact the
appropriate EPA Regional PCB Coordinator prior to commencing the
cleanup and disposal activities. See EPA's PCB website for a list of
the EPA Regional PCB Coordinators: <a href="http://www.epa.gov/pcbs/program-contacts">www.epa.gov/pcbs/program-contacts</a>.

E. Remove Regulatory Provision Allowing Disposal of PCB Bulk Product
Waste as Roadbed

Provisions in the Final Rule
The Agency is removing the option provided for in Sec.
761.62(d)(2) to dispose of PCB bulk product waste under asphalt as
roadbed material, as proposed. The Agency cannot determine that the
practice presents no unreasonable risk of injury to health or the
environment.
Summary of the Public Comments
The public comments were supportive of removing the regulatory
provision allowing the disposal of PCB bulk product waste as roadbed
material. One commenter sought confirmation that this change will not
impact PCB bulk product waste that was previously and lawfully disposed
of as roadbed material under this option. EPA confirms that while the
PCB regulations no longer allow disposal of PCB bulk product waste
under asphalt as roadbed as of the effective date of this final
rulemaking, this change does not have retroactive effect.
Background on the Issue
EPA established a provision allowing for disposal of PCB bulk
product waste as roadbed material in the 1998 PCB Megarule. In the
preamble for that rule, EPA stated that ``[b]ecause these disposal
options have been restricted to materials that do not leach and because
other potential routes of exposure have been controlled, EPA has
concluded that the risk from these disposal options is the practical
equivalent of disposal in a landfill as required in Sec. 761.62(b)(1),
and therefore that this risk is not unreasonable.'' \24\ Since 1998,
the assumption that PCBs do not migrate from PCB bulk product waste has
been proven incorrect in many scenarios.\25\ For example, studies show
that caulk containing PCBs degrades, releasing PCBs to the air,
stormwater, and

[[Page 59673]]

adjacent soil.\26\ Considering these studies, EPA questions whether
potential leaching of PCBs from PCB bulk product waste used as roadbed
material could lead to environmental releases of PCBs and potential
exposures to humans and wildlife. As a result, EPA no longer has a
basis to support the determination of no unreasonable risk of injury to
health or the environment that the Agency made in 1998. EPA further
believes that this disposal option is not widely used.
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\24\ 63 FR 35384, 35412; June 29, 1998.
\25\ Eero Priha, Sannamari Hellman, Jaana Sorvari, PCB
contamination from polysulphide sealants in residential areas--
exposure and risk assessment, Chemosphere, Volume 59, Issue 4, 2005,
Pages 537-543. <a href="https://www.sciencedirect.com/science/article/pii/S0045653505001074">https://www.sciencedirect.com/science/article/pii/S0045653505001074</a>.
\26\ Luca Rossi, Luiz de Alencastro, Thomas Kupper, Joseph
Tarradellas, Urban stormwater contamination by polychlorinated
biphenyls (PCBs) and its importance for urban water systems in
Switzerland, Science of The Total Environment, Volume 322, Issues 1-
3, 2004, Pages 179-189. <a href="https://www.sciencedirect.com/science/article/pii/S0048969703003619">https://www.sciencedirect.com/science/article/pii/S0048969703003619</a>.
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F. Add Flexible Provisions for Emergency Situations

Provisions in the Final Rule
EPA is adding new provisions for emergency situations under Sec.
761.66 to allow individuals to request a waiver from specific
requirements of Sec. Sec. 761.60, 761.61, 761.62, and 761.65, when
necessitated by an emergency situation. EPA is also adding two
provisions to the existing PCB Spill Cleanup Policy in 40 CFR part 761,
subpart G, that allow for more flexible requirements for cleanup of
spills caused by and managed in emergency situations. Additionally, EPA
is establishing a definition for ``emergency situation'' to clarify the
applicability of these changes.
The Agency is also adding a provision to remind the regulated
community that they must abide by all other applicable Federal, State,
and local laws and regulations when conducting activities under these
emergency provisions.
a. Definition of ``Emergency Situation''
EPA is adding a definition for ``emergency situation'' to
Sec. Sec. 761.3 and 761.123. Specifically, EPA is defining ``emergency
situation'' as ``adverse conditions caused by manmade or natural
incidents that threaten lives, property, or public health and safety;
require prompt responsive action from the local, State, Tribal,
territorial, or Federal government; and result in or are reasonably
expected to result in: (1) A declaration by either the President of the
United States or Governor of the affected State of a natural disaster
or emergency; or (2) an incident funded under the Federal Emergency
Management Agency (FEMA) via a Stafford Act disaster declaration or
emergency declaration. Examples of emergency situations may include
civil emergencies or adverse natural conditions, such as hurricanes,
earthquakes, or tornados.'' EPA is establishing this definition because
it is sufficiently broad to capture a wide range of emergencies that
would be likely to significantly impact the cleanup and disposal of PCB
waste. At the same time, the definition is contingent upon a
declaration of disaster or emergency from an established authority,
which are generally made in an objective manner. In response to a
public comment indicating that such declarations are sometimes made
well after incidents occur, which could create uncertainty as to
whether adverse conditions caused by the incident would qualify as an
emergency situation, EPA has revised the proposed definition to include
situations that both result in or are reasonably expected to result in
a declaration.
b. Additional Flexibilities Under the PCB Spill Cleanup Policy for
Spills Caused by Emergency Situations
In this rulemaking, EPA is expanding the existing flexibilities in
the PCB Spill Cleanup Policy in 40 CFR part 761, subpart G to be
available in all emergency situations, rather than on a case-by-case
basis. First, EPA is allowing the responsible party to clean up a spill
caused by an emergency situation based on the as-found PCB
concentration when the source concentration cannot readily be
determined, as is common in emergency situations. See Sec.
761.120(c)(2)(i) and the definition of ``spill'' in Sec. 761.123.
Second, EPA is adding flexibility to the timeframe for completing
notification under the PCB Spill Cleanup Policy. Generally, the PCB
Spill Cleanup Policy specifies that notification be made within 24
hours after the responsible party was notified or became aware of the
spill. See Sec. 761.125(a)(1). When the Policy is used for cleanup
activities undertaken directly in response to spills caused by
emergency situations, EPA is extending the timeframe for reporting. EPA
proposed to extend the timeframe for reporting to seven days after the
adverse conditions that prevented communication have ended. However, in
response to a comment summarized below, EPA is shortening the window to
48 hours after the adverse conditions that prevented communication have
ended (e.g., internet and phone lines are down due to an emergency
situation; once one or the other is back up, notification to EPA is
required within 48 hours). See Sec. 761.120(c)(2)(ii).
These flexibilities are being finalized largely as proposed. EPA
expects that these flexibilities will result in a net benefit in
protection of health and the environment, given that they allow those
conducting responses to spills caused by emergency situations to assess
and dispose of waste more quickly and to prioritize time-sensitive
remedial actions.
c. Waiver From Various Sampling, Extraction, Analysis, Cleanup,
Storage, and Disposal Requirements in Emergency Situations
EPA is creating an option to apply for a waiver from various PCB
waste management requirements when necessitated by emergency
situations. Responsible parties will be able to request a waiver from
the provisions of Sec. Sec. 761.60, 761.61, 761.62, and 761.65, which
provide requirements for sampling, extraction, analysis, cleanup,
storage, and disposal of all types of regulated PCB wastes.
Cleanup and disposal activities often cannot be initiated promptly
in emergency situations, such as hurricanes or wildfires, due to
necessary emergency response actions taking place. EPA recognizes that
spills caused by an emergency situation may not be discovered or be
able to be cleaned up until after the emergency ends or until after the
initial emergency response. EPA regularly negotiates and implements
special arrangements during emergency situations on a case-by-case
basis, which can delay implementation of remedial actions. EPA is
therefore modifying the PCB regulations to allow the person managing
the cleanup and/or disposal of PCB waste caused by an emergency
situation to request waivers from applicable PCB sampling, extraction,
analysis, cleanup, storage, disposal and other regulatory requirements
when there is an emergency situation and the existing regulatory
requirements (e.g., timeframes, sampling protocols) are impracticable
due to the nature of the emergency situation. This waiver option is
being finalized as proposed, except as described in the response to
comments below.
Discussion of the Public Comments
The public comments pertaining to emergency situations were
generally supportive of most of the provisions and additional
flexibilities put forward by the Agency in the proposed rulemaking.
There were three main issues raised by the commenters.
First, some commenters expressed that the proposed definition of
``emergency situation'' was too limiting and may leave individuals
unsure if they would be able to use the flexible

[[Page 59674]]

provisions for emergency situations in Sec. 761.66 and in the PCB
Spill Cleanup Policy. One commenter stated that emergency and disaster
declarations may be delayed, even for several weeks, after adverse
conditions occur and provided several examples where delay has occurred
in the past. The commenter opposed tying the definition of emergency
situation to the issuance of a declaration because delays could create
uncertainty as to whether regulated parties could use the flexible
provisions for emergency situations when they are most needed. EPA
recognizes that delays in issuance of declarations could create
uncertainty and has therefore revised the proposed definition to
include not only situations that result in declarations, but also
situations where an individual could reasonably expect a declaration
will be made. Other commenters requested that EPA broaden the
definition of ``emergency situation'' to include activities such as
power restoration and emergency utility repairs. EPA notes that the
flexible provisions for emergency situations may be used for activities
involving power restoration and utility repair that are caused by
emergency situations. However, those activities by themselves do not
constitute emergency situations that warrant flexibility. EPA does not
expect there to be barriers to compliance with the regular requirements
in the normal course of power restoration or utility repairs, such as
communications lines being fully inaccessible or utilities conducting
other competing emergency response actions.
Second, a commenter stated the proposed seven-day timeframe for
completing notification under the PCB Spill Cleanup Policy would give
individuals too much time to notify the Agency in an emergency
situation. The Agency agrees with this commenter and is shortening the
timeframe to 48 hours, which is now closer in length to the 24-hour
timeframe for notification under the PCB Spill Cleanup Policy for
spills not related to emergency situations. See Sec. 761.125(a)(1).
Third, some commenters were confused by the waiver option and did
not see how it differed from a formal PCB approval. While the waiver
request is submitted to and approved by the Regional Administrator, it
is not a formal PCB approval. The waiver is only for temporary measures
in emergency situations. Examples of such situations might include
excavating visibly contaminated soil near storm drains or removing and
storing leaking electrical equipment that contains PCB oil before the
remaining oil is released to the environment. As emergency situations
may be complex and often time-sensitive, the waiver option allows one
path for entities to request changes to multiple standards at once,
rather than seeking individual approvals under several regulatory
standards.
A comment was received requesting that a copy of the waiver request
be sent to the Director of the State or Tribal environmental agency.
The Agency agrees with this change and has incorporated the language
into the final rule. Therefore, the Agency is finalizing the waiver
request option generally as proposed with the additional language that
a copy of the waiver request must be sent to the Director of the State
or Tribal environmental agency.
Other comments were either supportive of the proposed changes or
requested minor changes. One commenter requested that the Agency
include language to remind the regulated community that they must abide
by all other Federal, State, and local laws and regulations; the Agency
agrees with this change and has incorporated the language in the final
rule.
Background on the Issue
The TSCA PCB Spill Cleanup Policy was first published on April 2,
1987 (52 FR 10688), and is codified at 40 CFR part 761, subpart G. The
Policy establishes criteria to determine the adequacy of the cleanup of
spills resulting from the release of materials containing PCBs at
concentrations of 50 ppm or greater which occur after May 4, 1987. The
PCB Spill Cleanup Policy requires cleanup of PCBs to different levels
depending upon spill location, the potential for exposure to residual
PCBs remaining after cleanup, the concentration of PCBs initially
spilled (high or low concentration), and the nature and size of the
population potentially at risk of exposure to residual PCBs. The Policy
applies the most stringent requirements for PCB spill cleanup to non-
restricted access areas where there is a greater potential for human
exposures to spilled PCBs and less stringent requirements to restricted
access areas where there is little potential for human exposures.\27\
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\27\ 59 FR 62788, 62793; Dec. 6, 1994.
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When the spilled material contains 50 to less than 500 ppm PCBs and
the total quantity of material spilled involves less than 1 pound of
PCBs, the Policy allows for cleanup in accordance with procedural
performance requirements (i.e., double wash/rinse for solid surfaces
and removal of visible traces plus a 1-foot lateral boundary for soil
and other ground media provided that the minimum depth of excavation is
10 inches) rather than requiring sampling to verify that numerical
cleanup standards have been met. When the spilled material contains
PCBs equal to or greater than 500 ppm PCBs, or the total quantity of
material spilled containing PCBs at or below 500 ppm involves 1 pound
or more of PCBs by weight, the Policy provides numerical cleanup
standards based on the accessibility of the area and the potential for
human exposure. Post-cleanup sampling is required to verify that the
cleanup standards have been met.
EPA may allow flexibility such as less stringent or alternative
requirements based upon site-specific considerations. See Sec.
761.120(a)(4). EPA has used this provision to issue storm-specific
guidance in Regions 4 and 6 for Hurricanes Katrina (2005),28
Harvey (2017),29 Irma (2017),30 Florence
(2018),31 Michael (2018),32 Dorian
(2019),33 34 and Tropical Storm Barry
(2019).35 36 Generally, EPA extended the time frame for
notification and allowed spills to be managed based on the as-found
concentration for spills directly caused by the emergency situation.
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\28\ Letter from Jesse Baskerville to Mary Davis, Nov 9, 2005.
Guidance for Addressing Spills from Electrical Equipment [damaged by
Hurricane Rita or Katrina].
\29\ Correspondence from James Sales, EPA to Mary Davis. Aug 29,
2017. PCB Disaster Debris Cleanup Guidance.
\30\ Memo from Alan Farmer to Barnes Johnson, Sept 8, 2017. EPA
Region 4 Issuance of Disaster Waste Guidance.
\31\ Memo from Susan Hansen to Barnes Johnson. Sept 13, 2018.
EPA Region 4 Issuance of Disaster Waste Guidance.
\32\ Memo from Susan Hansen to Barnes Johnson. Oct 10, 2018. EPA
Region 4 Issuance of Disaster Waste Guidance.
\33\ Memo from John Armstead to Barnes Johnson. Sept 4, 2019.
EPA Region 3 Issuance of Disaster Waste Guidance.
\34\ Memo from Carol J. Monell to Barnes Johnson. Sept 3, 2019.
EPA Region 4 Issuance of Disaster Waste Guidance.
\35\ Memo from Ronnie Crossland to Barnes Johnson. July 11,
2019. EPA Region 6 Issuance of Disaster Waste Guidance.
\36\ Memo from Carol J. Monell to Barnes Johnson. July 18, 2019.
EPA Region 4 Issuance of Disaster Waste Guidance.
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EPA recognizes that issuing guidance on a case-by-case basis can
create some inefficiencies. First, since disasters can develop without
forewarning, they can put pressure upon EPA to develop the guidance
quickly so that it may be distributed to the regulated community in
time for facilities to use it. Also, the fast-paced nature of the
response to such events means that entities that could use the guidance
may not become aware that it was issued in time to use

[[Page 59675]]

it. Finally, due to uncertainty regarding whether a guidance document
will be issued, it is often challenging for regulated facilities to
include the flexibilities offered in the EPA guidance into their
disaster preparation protocols. EPA received requests from industry
requesting a more standardized set of flexibilities, citing several of
these reasons.
Independent of EPA's additions above, EPA notes that Sec. 761.61
currently ``does not prohibit any person from implementing temporary
emergency measures to prevent, treat, or contain further releases or
mitigate migration to the environment of PCBs or PCB remediation
waste.'' This means that immediate measures may be taken to contain
PCBs during an emergency situation prior to receiving approval from the
EPA Regional Administrator as described in Sec. 761.66(b).

G. Harmonize General Disposal Requirements for PCB Remediation Waste

Provisions in the Final Rule
The Agency is finalizing the proposed change to the language in
Sec. 761.50(b)(3)(ii) by removing the phrase ``at as found
concentrations >=50 ppm.'' The language now reads: ``(ii) Any person
responsible for PCB waste that was either placed in a land disposal
facility, spilled, or otherwise released into the environment on or
after April 18, 1978, but prior to July 2, 1979, where the
concentration of the spill or release was >=500 ppm; or placed in a
land disposal facility, spilled, or otherwise released into the
environment on or after July 2, 1979, where the concentration of the
spill or release was >=50 ppm, must dispose of it in accordance with
either of the following''.
Discussion of the Public Comments
All of the public comments were either supportive or did not object
to EPA's proposal to modify the language in Sec. 761.50(b)(3)(ii). EPA
is thus finalizing this change as proposed.
Background on This Issue
In the 1998 PCB Megarule, EPA promulgated both the definition of
PCB remediation waste in Sec. 761.3 and a guide to the cleanup and
disposal obligations for PCB remediation waste in Sec. 761.50(b)(3).
At the time of the 1998 PCB Megarule, Sec. 761.50(b)(3) failed to
account for the fact that disposal of PCBs <500 ppm was not regulated
between April 18, 1978, (the effective date of the Disposal and Marking
Rule, which set the 500 ppm threshold) and July 2, 1979 (the effective
date of the PCB Ban Rule, which replaced the 500 ppm level with 50
ppm). EPA issued a technical amendment to correct this discrepancy in
1999 (64 FR 33755; June 24, 1999). The preamble text addressed changes
made to Sec. 761.50(b)(3)(i), which was amended accordingly. Section
761.50(b)(3)(ii) was also amended, presumably to correct the same
discrepancy for the time between April 18, 1978, and July 2, 1979.
However, the phrase ``at as-found concentrations >=50 ppm'' was added
to Sec. 761.50(b)(3)(ii) unnecessarily. This addition was apparently
an error; there is no justification in the preamble for the change, and
it could be read to cut against the apparent intent to better align
Sec. 761.50(b)(3) with the definition of PCB remediation waste and the
general direction in Sec. 761.50(b)(3) that PCB remediation waste ``is
regulated for cleanup and disposal in accordance with Sec. 761.61.''
In keeping with the regulatory text overall, preamble and guidance
statements, and interactions with the regulated community, EPA has not
interpreted the ``as found'' language in Sec. 761.50(b)(3)(ii) as
limiting the cleanup and disposal obligations for PCB remediation waste
created by releases that occurred on or after the dates referenced in
that clause, where the as-found PCB concentration is <50 ppm. Rather,
EPA maintains that all materials that fit the definition of PCB
remediation waste in Sec. 761.3--including materials which are
currently at any volume or concentration where the original source was
>=500 ppm PCBs beginning on April 18, 1978, or >=50 ppm PCBs beginning
on July 2, 1979--are regulated for cleanup and disposal under Sec.
761.61. The introductory language to Sec. 761.50(b)(3) provides,
without exception, that ``PCB remediation waste [. . .] is regulated
for cleanup and disposal in accordance with Sec. 761.61.'' EPA has
published guidance affirming that PCB remediation waste, even if <50
ppm, is regulated under Sec. 761.61.\37\ EPA has also issued numerous
risk-based disposal approvals in the past five years that apply only to
<50 ppm PCB remediation waste.\38\
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\37\ PCB Q&A Manual. June 2014. Pg. 49 Q.3 <a href="https://www.epa.gov/sites/production/files/2015-08/documents/qacombined.pdf">https://www.epa.gov/sites/production/files/2015-08/documents/qacombined.pdf</a>.
\38\ Nationwide Risk-based PCB Remediation Waste Disposal
Approvals. <a href="https://www.epa.gov/pcbs/nationwide-risk-based-pcb-remediation-waste-disposal-approvals">https://www.epa.gov/pcbs/nationwide-risk-based-pcb-remediation-waste-disposal-approvals</a>.
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In EPA's view, the function of Sec. 761.50(b)(3)(ii) is to clarify
that PCB remediation waste created by releases that occurred on or
after the dates referenced in that clause can be managed either in
accordance with the PCB Spill Cleanup Policy if it meets the criteria
established in the Policy, as provided in Sec. 761.50(b)(3)(ii)(A); or
in accordance with Sec. 761.61, as provided in Sec.
761.50(b)(3)(ii)(B) and the introductory text to Sec. 761.50(b)(3).
This intention is reflected in the 1998 PCB Megarule preamble, which
states: ``With regard to sites containing PCB remediation wastes
generated on or after April 18, 1978, owners or operators of those
sites now have two choices: they may clean up the wastes in accordance
with the new Sec. 761.61, or, if applicable, they may clean up the
wastes in accordance with EPA's Spill Cleanup Policy, part 761, subpart
G.'' \39\ In contrast, the older PCB remediation waste addressed under
Sec. 761.50(b)(3)(i) is not eligible for management under the PCB
Spill Cleanup Policy. Thus, as EPA interprets Sec. 761.50(b)(3)(ii),
the effect of adding the ``as-found'' limitation to the provision was
to suggest that PCB remediation waste created by releases that occurred
on or after the dates referenced in that clause, where the as-found PCB
concentration is <50 ppm, is not eligible for management under the PCB
Spill Cleanup Policy, but only under Sec. 761.61 as provided in the
introductory text. EPA did not intend to so limit the Policy, which
applies to the cleanup of certain spills resulting from the release of
materials containing PCBs >=50 ppm but is not dependent on the as-found
concentrations of the materials contaminated by such spills.
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\39\ 63 FR 35384, 35402; June 29, 1998.
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H. Make Changes To Improve Regulatory Implementation

EPA proposed several supplemental amendments to improve
implementation of existing requirements, clarify regulatory ambiguity,
and correct technical errors in the PCB regulations. EPA requested
comment and is finalizing changes for each item listed below. For more
information on the proposed changes, see Section III.H. Make Changes to
Improve Regulatory Implementation of the proposed rule, ``Alternate PCB
Extraction Methods and Amendments to PCB Cleanup and Disposal
Regulations'' (86 FR 58730), which is included in the docket for this
final rulemaking.
1. Medium Density Plastics as Non-Porous Surfaces
Provisions in the Final Rule
The definition of ``non-porous surface'' in Sec. 761.3 includes
several examples, including high-density

[[Page 59676]]

plastics. The Agency is modifying the definition of ``non-porous
surface'' in Sec. 761.3 to include medium-density plastics as an
example of a non-porous surface.
Discussion of the Public Comments
The public comments were supportive of adding medium density
plastics to the definition of a non-porous surface, and thus EPA is
finalizing this change as proposed.
Background on the Issue
In December 2018, EPA issued an interpretive letter to the American
Gas Association which found that medium- and high-density polyethylene
used in natural gas distribution piping meet the definition of a ``non-
porous surface'' under Sec. 761.3.\40\ EPA found that the study titled
Assessment of Polychlorinated Biphenyls (PCBs) in Polyethylene (PE) Gas
Distribution Piping, conducted by NYSEARCH and National Grid,
demonstrated that the amount of PCB absorption into medium- and high-
density polyethylene pipe was minimal, and penetration of PCBs beyond
the immediate surface was limited.\41\ EPA is therefore including
medium-density plastics in the definition of non-porous surface. See
Sec. 761.3.
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\40\ Letter from Barnes Johnson to Pamela Lacey. Dec 14, 2018.
<a href="https://www.epa.gov/pcbs/epas-response-letter-aga-regarding-mdpe-and-hdpe-non-porous-surface">https://www.epa.gov/pcbs/epas-response-letter-aga-regarding-mdpe-and-hdpe-non-porous-surface</a>.
\41\ JANA on behalf of NYSEARCH NGA. Oct 19, 2018. Assessment of
Polychlorinated Biphenyls (PCBs) in Polyethylene (PE) Gas
Distribution Piping. Revision 2.
---------------------------------------------------------------------------

2. Temporary Storage in Containers at the Site of Generation
Provisions in the Final Rule
The PCB regulations permit the storage of bulk PCB remediation
waste in piles at the site of generation for up to 180 days under Sec.
761.65(c)(9). In response to requests from generators, EPA is allowing,
under the same provision, the use of non-leaking, covered containers to
be used at the site of generation for up to 180 days. Waste stored in
containers must meet the same criteria as waste stored in piles, and
thus do not incur additional risk.
Discussion of the Public Comments
The public comments were all supportive or did not object to
allowing temporary storage in containers at the site of generation, and
thus EPA is finalizing this change as proposed. Several comments did
request clarification on what qualifies as a container, including
whether a container encompasses drums or roll-off boxes. Drums and
roll-off boxes which meet the definition of a container under Sec.
761.65(c)(9) (e.g., constructed of appropriate materials, non-leaking,
covered) would qualify as a container. EPA is clarifying that under
this provision a liner is required only for piles, to prevent soil
contamination, and is not required for containers. Please see
``Response to Comments on the Proposed PCB Rulemaking'' in the docket
for further clarification.
3. Language Modifications for Financial Assurance Instruments
Provisions in the Final Rule
The Agency is finalizing the change to allow the Regional
Administrator (RA) the flexibility to modify the language required in
financial assurance instruments for the purposes of implementation
under TSCA. These changes allow the RA to request modification to the
terms of those instruments to account for the fact that they are being
used to fulfill a financial assurance obligation under TSCA; for
example, modifications may include changes to the instrument wording so
that references to RCRA are replaced with references to TSCA, or
changes to the instruments to better comport with the legal authorities
under, and applicable to, TSCA. The changes are made throughout Sec.
761.65(g), once for each of the financial instruments. See Sec. Sec.
761.65(g)(1), 761.65(g)(1)(iv), 761.65(g)(2), 761.65(g)(3)(i),
761.65(g)(4)(i), 761.65(g)(5), 761.65(g)(6), and 761.65(g)(7).
Discussion of the Public Comments
EPA received one public comment in support and one public comment
in opposition to the proposed revision to allow Regional Administrators
discretion to modify the required language in financial assurance
instruments. The latter commenter was concerned with the possibility of
different standards applying in different Regions. However, this is not
the intention of the change. The wording of the change, ``except when
the Regional Administrator specifies modifications for the purposes of
implementation under TSCA,'' that applies to each of the allowed
financial assurance instruments limits changes to those that are
necessary for implementation under and in alignment with TSCA. Any
necessary changes to financial assurance instruments should therefore
be narrow. Further, the TSCA PCB program is implemented by EPA
Headquarters and Regions with a high level of coordination; therefore,
EPA expects any necessary modifications to be broadly and consistently
applied across the program. EPA is finalizing this change as proposed.
Background on This Issue
The PCB regulations at Sec. 761.65(g) require commercial storers
of PCB waste to establish financial assurance for closure of PCB
storage facilities by choosing from financial assurance mechanisms in
the RCRA regulations under 40 CFR part 264. Part 264 includes
prescribed language that must be included in each type of financial
instrument. Some variation from the RCRA instrument wording may be
necessary for the purposes of effectuating the financial assurance
requirements under TSCA. EPA is therefore revising Sec. 761.65(g) to
allow the RA the flexibility to modify the language required in
financial assurance instruments for the purposes of implementation
under TSCA.
5. Remove Manifest Tracking Numbers From Annual Reports
Provisions in the Final Rule
EPA is removing the provision at Sec. 761.180(b)(3)(ii) requiring
owners or operators of PCB disposal facilities or commercial storage
facilities to include in their annual reports lists of manifest
tracking numbers of signed PCB manifests either received by or
generated at the facility during that year. The Agency is finalizing
this change as proposed to reduce the burden on reporting facilities
and to simplify the annual reporting process. In place of the
aforementioned requirement, EPA is marking Sec. 761.180(b)(3)(ii) as
``[Reserved].''
Discussion of the Public Comments
No commenters were opposed to the removal of manifest tracking
numbers from the Annual Reports and thus EPA is finalizing this change
as proposed. Commenters did encourage EPA to look for additional ways
to coordinate the PCB manifest requirements with EPA's RCRA hazardous
waste electronic manifest (e-Manifest) system to avoid duplication and
unnecessary burdens. EPA notes that the Agency recently proposed, in a
separate rulemaking, further regulatory changes to more closely align
PCB manifest regulations with the RCRA manifest regulations with
respect to e-Manifest (87 FR 19290; April 1, 2022). Commenters also
requested that the owner or operator of a facility should be allowed to
exclude manifest tracking numbers from their annual document log since
that information is also uploaded to the e-Manifest system. EPA did not
propose changes to remove the requirement to

[[Page 59677]]

maintain manifest tracking numbers in the annual document log and thus
is not making any changes at this time.
Background on This Issue
As of June 30, 2018, receiving facilities must submit final, signed
manifests to EPA's e-Manifest system. Since PCB manifests can now be
obtained from the e-Manifest system, EPA no longer needs this
information to be submitted as part of the annual reporting
requirement.
6. Mandatory Form for Annual Reports
Provisions in the Final Rule
The Agency is finalizing a requirement to use a standard form for
the submission of annual reports under Sec. 761.180(b)(3). Use of a
standard form will create a consistent reporting format that will
reduce burden for EPA and regulated entities.
Discussion of the Public Comments
Most commenters supported use of a standard form for submission of
annual reports, and thus EPA is finalizing this change as proposed. EPA
notes that, one commenter opposed the standard form, asserting that it
would be a burden to the facilities that had adopted their own format
and methods for compiling the annual report. While EPA acknowledges
that facilities will have to adjust their current practices to adopt
the new form, the Agency finds that a standard form will reduce burden
overall and result in more complete and higher quality data submitted.
Another commenter was amenable to the addition of the form but did not
agree that use of the form should be mandatory; specifically, the
commenter noted that if annual reports contain all required
information, failure to use the standard form should not result in a
TSCA violation. The Agency disagrees with this comment and believes
that mandatory use of the form for submission of annual reports is
appropriate. This is consistent with how EPA requires use of other
forms, such as the Uniform Hazardous Waste Manifest form (EPA form
8700-22) and the RCRA Subtitle C Site Identification Form (EPA form
8700-12). Moreover, allowing use of the standard form on a voluntary
basis would likely diminish the impacts of the form on burden reduction
and submission of more complete and higher quality data. Some
commenters also requested a two-year transition period before use of
the form becomes mandatory. EPA finds that an additional transition
period is not necessary given that use of the form will not be required
until the first July 15 (i.e., the due date for the annual report)
following the effective date of the rulemaking. Another commenter asked
if EPA could develop a standardized online reporting portal; EPA
acknowledges this comment and may consider it for future implementation
efforts.
Background on This Issue
While Sec. 761.180(b)(3) describes the information EPA requires in
the annual report, it does not specify a format. This lack of clarity
could lead to confusion for regulated entities. Use of the form will
standardize the format and improve data quality, allowing EPA to
process the reports in less time. The form will also reduce the
reporting burden on members of the regulated community who submit more
than the required information, such as facilities that send copies of
every manifest instead of every manifest tracking number. Furthermore,
the instructions for the form clarify EPA's expectations; for example,
facilities should report ``zero'' in all categories for which they did
not manage PCB waste in that calendar year. At present, many facilities
omit categories in annual reports, making it unclear as to whether this
is an oversight or an indication that the categories do not pertain to
them.
7. PCB Waste Categories on the Manifest and Annual Reports
Provisions in the Final Rule
The Agency is finalizing changes to the categories of PCB waste
specified by the generator on the manifest to align with the categories
of PCB waste specified by the commercial storer or disposer in the
annual report. Specifically, EPA is modifying the categories of PCB
waste in Sec. 761.207(a) to list the five categories from Sec.
761.180(b)(3)(iii)-(vi): ``bulk PCBs,'' ``PCB Transformers,'' ``PCB
Large High or Low Voltage Capacitors,'' ``PCB Article Containers,'' and
``PCB Containers.'' In response to comments summarized below, the
Agency is also adding a sixth category of PCB waste in Sec. 761.207(a)
and Sec. 761.180(b)(3)(iii)-(vi): ``Other.'' Additional required data
elements (e.g., unique identification number, weight in kilograms, date
removed from service) remain the same. EPA notes that the additional
category of PCB waste on the manifest, ``Other,'' does not impact the
categories of PCB waste submitted in the annual document log under
Sec. 761.180(a)(2). EPA is also removing references to instructions in
the appendix of 40 CFR part 262 because these instructions were removed
from the regulations and are instead available on EPA's website.\42\
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\42\ <a href="https://www.epa.gov/hwgenerators/uniform-hazardous-waste-manifest-instructions-sample-form-and-continuation-sheet">https://www.epa.gov/hwgenerators/uniform-hazardous-waste-manifest-instructions-sample-form-and-continuation-sheet</a>.
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Discussion of the Public Comments
The commenters were divided on this change. One commenter fully
supported this change. Another commenter did not object to the revision
of PCB waste categories on the manifest but requested that stakeholders
be given enough time to prepare for the changes and that the changes
only be applicable to manifests prepared after the effective date of
the rule. EPA confirms that the revised categories of PCB waste are
only applicable to manifests prepared after the effective date of the
rule. The Agency also notes that the effective date of this rule is 180
days after the date of publication in the Federal Register, which
should provide sufficient time for stakeholders to prepare. One
commenter was concerned that none of the proposed categories covered
PCB-Contaminated transformers with concentrations >=50 to <500 ppm,
which previously were classified under the category ``PCB Article not
in a PCB Container or PCB Article Container,'' which EPA is
eliminating. Another commenter requested clarification from the Agency
on whether PCB-Contaminated transformers and other electrical equipment
would be required to be identified on the manifest, as it is not
included in the five proposed categories. To address these
aforementioned comments, the Agency is adding an additional category of
PCB waste to the manifest (and the annual report), ``Other.'' EPA also
notes that PCB-Contaminated transformers and other electrical equipment
will be required to be marked on the manifest under this new category.
Another commenter opposed the requirements in Sec. 761.207(a)(4) and
(a)(5) to specify the type of PCB waste for each PCB Article Container
or PCB Container, asserting that such information takes up already
limited space on the manifest form and is unnecessary because it can be
found in waste characterization forms on-site at generator and
treatment or disposal facilities. EPA disagrees with the comment,
noting that previous requirements for the now-eliminated ``PCB Article
Container or PCB Container'' category of PCB waste also required
specification on the manifest of the type of PCB waste for each PCB
Article Container or PCB Container. EPA believes that such information
on the manifest is valuable because this allows EPA to track the type
of waste in

[[Page 59678]]

e-Manifest without having to obtain waste characterization forms, which
are not easily accessed.
Background on This Issue
Previously, Sec. 761.207(a) required PCB waste to be listed on the
manifest as either ``bulk PCBs,'' ``PCB Article Container or PCB
Container,'' or ``PCB Article not in a PCB Container or PCB Article
Container.'' These categories, however, did not match the categories of
PCB waste specified by the commercial storer or disposer in the annual
report under Sec. 761.180(b)(3). Harmonizing these PCB waste
categories streamlines recordkeeping for commercial storers and
disposers, while imposing negligible burden on the generators.
8. Define ``As-Found Concentration''
Provisions in the Final Rule
The Agency is adding a definition of ``as-found concentration'' to
Sec. 761.3, as proposed. The final definition reads: ``As-found
concentration means the concentration measured in samples of
environmental media or material collected in-situ (i.e., prior to being
moved or disturbed for cleanup and/or disposal), unless otherwise
specifically provided. For example, media must not be disturbed, nor
may they be diluted (e.g., excavated, placed on a pile, and sampled
after such placement), before characterization sampling is conducted.
Sampling media in piles and existing accumulations would be considered
``as-found'' if the media were already in piles when the site was first
visited by the responsible party, such as during the redevelopment of
abandoned properties with historic PCB contamination. The as-found
concentration is distinct from the source concentration, which is the
concentration of the PCBs in the material that was originally spilled,
released, or otherwise disposed of at the site.''
The definition clarifies that the as-found concentration must be
measured from samples collected in-situ, unless otherwise specifically
provided. Existing accumulations, as described in Sec. 761.340(a)
would be one such exception. Ex-situ sampling often reduces the
concentration of PCBs in environmental media through dilution.
Discussion of the Public Comments
Commenters expressed concerns that the proposed definition of as-
found concentration would be unworkable for situations where soils are
excavated and generated during emergency underground utility repairs,
routine maintenance activities, replacement of utility poles damaged by
weather events, or otherwise generated and tested ex-situ for the
purposes of characterization for disposal. EPA acknowledges that there
are scenarios where in-situ sampling to characterize potential PCB
remediation waste for disposal may not be feasible such as certain
emergency repair situations. It is EPA's intent to encourage PCB
sampling of in-situ environmental media prior to making emergency
repairs if it is feasible to do. If PCBs are discovered after ex-situ
sampling in an emergency repair scenario, or from materials excavated
from an area where there was no known PCB use or release, they may be
disposed of under the performance based disposal requirements of Sec.
761.61(b)(2), or a person may take additional steps to determine if the
PCBs are regulated under TSCA (i.e., originated from a regulated source
or were otherwise potentially diluted from in-situ levels exceeding 50
mg/kg). If you are uncertain about whether such materials are regulated
under the TSCA PCB regulations, you are encouraged to consult with your
Regional PCB Coordinator. EPA believes that routine maintenance
activities or general utility repairs would not rise to the level of an
emergency and would provide for the opportunity to perform in-situ
sampling to check for the presence of PCB contamination prior to soil
excavation. For scenarios such as downed utility poles which cause
releases of PCBs or suspected PCBs to the environment, the PCB Spill
Cleanup Policy in 40 CFR part 761, subpart G offers an approach for
such scenarios.
In addition, commenters stated that the definition of as-found
concentration should not be restricted to in-situ sampling due to the
heterogeneous nature of PCB contamination at cleanup sites. EPA
acknowledges that PCB remediation waste such as soils can be
heterogeneous; however, the regulations require adequate site
characterization to determine the concentration and extent of PCB
contamination at a cleanup site. The Subpart N cleanup site
characterization sampling procedures were included in the 1998 PCB
Megarule as an optional method for collecting new data at a cleanup
site under 40 CFR 761.61. The regulations do not preclude a person from
using a characterization sampling procedure designed to reduce the
deleterious effects that soil heterogeneity has on environmental data
prior to soil excavation.
EPA finds that no changes are necessary based on public comments,
as addressed above. Therefore, EPA is finalizing the definition of
``as-found concentration'' as proposed.
Background on This Issue
In the 1998 PCB Megarule, EPA allowed for a variance from the anti-
dilution provision for certain PCB remediation waste.\43\ Such
remediation waste is managed for disposal based on the concentration of
the PCBs found in the affected media at the time the waste is
discovered as opposed to the concentration of PCBs in the material that
was originally spilled, released, or otherwise disposed of at the site.
TSCA does not allow further iterative stages of successive dilution
such as by intentionally or fortuitously excavating soils affected by a
release from a regulated source into stockpiles with subsequent
characterization for disposal testing. The Agency clarified this
position by developing specific questions and answers related to as-
found concentrations in EPA's PCB Q&A Manual available on the EPA PCB
website at <a href="https://www.epa.gov/pcbs/polychlorinated-biphenyl-pcb-question-and-answer-manual-and-response-comment-documents">https://www.epa.gov/pcbs/polychlorinated-biphenyl-pcb-question-and-answer-manual-and-response-comment-documents</a>. ``As-found
concentration'' is used in the PCB regulations particularly in
reference to PCB remediation waste. See Sec. Sec. 761.50(b) and
761.61.
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\43\ 63 FR 35384, 35388; June 29, 1998.
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9. Clarify Sec. 761.61(a) Cleanups Must Comply With All Applicable
Requirements
Provisions in the Final Rule
EPA is finalizing the changes to Sec. 761.61(a)(3)(ii) as
proposed. EPA is removing the phrase ``assume that it is complete and
acceptable'' from Sec. 761.61(a)(3)(ii) and adding text to that
provision clarifying that the subsequent cleanup and disposal must
comply with all applicable requirements in Sec. 761.61(a)(4) through
(9). See Sec. 761.61(a)(3)(ii). EPA is not making any other changes to
Sec. 761.61(a)(3)(ii). EPA is finalizing the changes to Sec.
761.61(a)(3)(ii) to ensure the notification that responsible parties
submit under Sec. 761.61(a) complies with all requirements of Sec.
761.61(a)(3)(i) and the subsequent cleanup and disposal complies with
all applicable requirements in Sec. 761.61(a)(4) through (9). The
person submitting the notification is responsible for verifying its
completeness and accuracy.
The changes to 761.61(a)(3)(ii) do not impact the responsible
party's ability to proceed with the cleanup if the Agency does not
respond within 30 days. However, if upon review of the notification,
EPA determines that the notification does not contain all information
required by

[[Page 59679]]

Sec. 761.61(a)(3)(i), sufficient to ensure compliance with Sec.
761.61(a)(4) through (a)(9) at the site, the Agency may require the
submission of additional information. Furthermore, regardless of the
content of the notification, the cleanup and disposal must meet all
requirements of Sec. 761.61(a)(4) through (9). If the responsible
party has reason to believe their implementation of Sec. 761.61(a) may
not satisfy the regulatory requirements, it would be in their best
interest, from a compliance assurance perspective, to contact the
appropriate EPA Regional PCB Coordinator before the end of the 30-day
period, or at least before commencing the cleanup and disposal
activities. EPA also encourages responsible parties to contact the
appropriate EPA Regional PCB Coordinator to discuss the notification
and cleanup plan before submitting it to EPA. See the EPA PCB website
for a list of the EPA Regional PCB Coordinators at <a href="http://www.epa.gov/pcbs/program-contacts">www.epa.gov/pcbs/program-contacts</a>. In addition, PCB cleanup guidance (e.g., PCB Facility
Approval Streamlining Toolbox) is available on the EPA PCB website at
<a href="https://www.epa.gov/pcbs">https://www.epa.gov/pcbs</a>.
Discussion of the Public Comments
EPA proposed to remove the phrase ``assume that it is complete and
acceptable'' from 761.61(a)(3)(ii) and to add language clarifying that
the subsequent cleanup and disposal must comply with all applicable
requirements in Sec. 761.61(a)(4) through (9). Two commenters
supported the proposed clarification that responsible parties must
ensure that notifications submitted to EPA under Sec. 761.61(a) and
the subsequent cleanup and disposal of PCB remediation waste under
Sec. 761.61(a) comply with all applicable requirements. Several
commenters opposed the proposed deletion of the phrase ``assume that it
is complete and acceptable'' from Sec. 761.61(a)(3)(ii). Commenters
proposed that EPA extend the 30-day timeframe for EPA to respond to a
notification to 60 days, expressed concerns with EPA identifying issues
after the responsible party begins the cleanup, and voiced concerns
with delayed cleanup implementation and increased cleanup costs. The
30-day timeframe for EPA to respond to a notification is intended to
prevent compromising the expeditious nature of Sec. 761.61(a) self-
implementing cleanups. The responsible party has the option to contact
EPA before submitting the notification to ensure they are preparing a
notification that meets all the requirements of Sec. 761.61(a). In
addition, the responsible party may contact EPA during the 30-day
period to go over the submitted notification with EPA. If EPA needs
additional information, EPA expects to request it within those 30 days.
EPA finds that no changes are necessary based on public comments,
as addressed above. Therefore, EPA is finalizing changes to Sec.
761.61(a)(3)(ii) as proposed.
10. Harmonize PCB Concentration Language Regarding Cap Material
The Agency is finalizing the proposal to correct a PCB remediation
waste cap requirement to provide consistency with the rest of the PCB
regulations. EPA received one public comment in support of this
provision.
Previously, Sec. 761.61(a)(7) required that ``a cap shall not be
contaminated at a level >=1 ppm PCB per Aroclor\TM\ (or equivalent) or
per congener.'' EPA is deleting ``per Aroclor\TM\ (or equivalent) or
per congener'' to make this requirement consistent with the rest of the
PCB regulations. A PCB congener is a single PCB molecular structure,
with (a) chlorine atom(s) attached to the benzene rings in different
configurations. Aroclors are mixtures of these PCB congeners that were
manufactured between 1929 and 1979. There are 209 congeners and sixteen
known Aroclors.44 45
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\44\ <a href="https://www.epa.gov/pcbs/table-polychlorinated-biphenyl-pcb-congeners">https://www.epa.gov/pcbs/table-polychlorinated-biphenyl-pcb-congeners</a>.
\45\ <a href="https://www.epa.gov/pcbs/table-aroclors">https://www.epa.gov/pcbs/table-aroclors</a>.
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The rest of the PCB regulations only specify requirements or
restrictions based on PCB concentrations, rather than PCB congener
concentrations or PCB Aroclor concentrations. The PCB regulations at
Sec. 761.1(b)(2) state ``Unless otherwise provided, PCBs are
quantified based on the formulation of PCBs present in the material
analyzed,'' which means that when PCBs are present as Aroclors (e.g.,
in PCB transformer oil), they may be measured and reported as Aroclors.
When PCBs are present as congeners that do not match an Aroclor pattern
(e.g., in weathered environmental samples), they should be measured as
congeners and reported as a sum of those congeners. Furthermore, there
is no technical or risk-based reason why PCB remediation waste cap
requirements should differ from other sections of the PCB regulations.
As a result, the new language simply requires that ``a cap shall not be
contaminated at a level >=1 ppm PCBs.'' This change is consistent with
how PCB concentrations are described in the rest of the TSCA PCB
regulations. See Sec. 761.61(a)(7).
11. Clarify Applicability of Deed Restrictions
The Agency is finalizing the proposed clarifications to the
requirements for deed restrictions associated with PCB remediation
waste being left on-site under a self-implementing cleanup and disposal
activity under Sec. 761.61(a). EPA received one public comment in
support of this provision.
The self-implementing cleanup and disposal option for PCB
remediation waste provides for varying cleanup levels based on the
occupancy level and the presence of a fence or cap. When cleanup levels
are based upon low occupancy of the cleanup area or the existence of a
fence or cap (either in high or low occupancy areas), deed restrictions
are required. See Sec. 761.61(a)(8). EPA's 2005 PCB Site
Revitalization Guidance confirms that Sec. 761.61(a)(8) requires a
deed restriction for all cleanups requiring caps or fences, and all
cleanups based on low-occupancy uses.\46\ However, portions of the
regulatory text previously suggested that the deed restriction must
reference low-occupancy status and the existence of a cap or fence in
every case, even though some sites with low occupancy cleanups will not
have caps or fences and some sites with caps or fences will not be low-
occupancy. To remedy any potential for confusion, EPA is finalizing
several minor edits to Sec. 761.61(a)(8) to clarify that deed
restrictions apply to any area with a cap, a fence, or a low occupancy
designation.
---------------------------------------------------------------------------

\46\ Polychlorinated Biphenyl (PCB) Site Revitalization Guidance
Under the Toxic Substances Control Act (TSCA). November 2005. Page
13. <a href="https://www.epa.gov/sites/production/files/2015-08/documents/pcb-guid3-06.pdf">https://www.epa.gov/sites/production/files/2015-08/documents/pcb-guid3-06.pdf</a>.
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In addition, EPA is clarifying in Sec. 761.61(a)(8)(i)(A) that the
deed restriction should designate the portion of a property that is
subject to the deed restriction, when applicable. The deed restriction
should reference the location of the cap, fence, or low occupancy
portion in a format that makes sense for the site, for example,
latitude/longitude coordinates, street address, or annotated areal
image. EPA intends for the December 2012 Institutional Controls
document to provide guidance on how to effectively plan, implement,
maintain, and enforce deed restrictions required under Sec.
761.61(a)(8).\47\
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\47\ Institutional Controls: A Guide to Planning, Implementing,
Maintaining, and Enforcing Institutional Controls at Contaminated
Sites. December 2012. <a href="https://www.epa.gov/sites/production/files/documents/final_pime_guidance_december_2012.pdf">https://www.epa.gov/sites/production/files/documents/final_pime_guidance_december_2012.pdf</a>.

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[[Page 59680]]

12. Include Alternate Extraction and Analysis Under Sec. 761.61(c)--
PCB Remediation Waste
The Agency is finalizing its proposal to clarify that, under a
Sec. 761.61(c) risk-based approval, a responsible party can be
permitted to perform extraction or analysis of PCB remediation waste in
a manner other than prescribed in Sec. 761.61(a) or (b), including in
lieu of a Subpart Q comparison study. Prior to this change, EPA's
practice has been to allow responsible parties to request the use of a
different extraction or analysis method for PCB remediation waste under
Sec. 761.61(c), as they are considered part of sampling requirements.
This change clarifies that responsible parties have this option, by
adding extraction and analysis to the list of modifiable requirements
under a Sec. 761.61(c) risk-based approval. EPA received two public
comments in support of this provision.
13. Include Alternate Extraction and Analysis Under Sec. 761.62(c)--
PCB Bulk Product Waste
The Agency is finalizing its proposal to clarify that, under a
Sec. 761.62(c) risk-based approval, a responsible party can be
permitted to perform extraction or analysis of PCB bulk product waste
in a manner other than prescribed in Sec. 761.62(a) or (b). Prior to
this change, EPA's practice has been to allow responsible parties to
request the use of a different extraction or analysis method for PCB
bulk product waste under Sec. 761.62(c), as they are considered part
of sampling requirements. This change clarifies that responsible
parties have this option, by adding extraction and analysis to the list
of modifiable requirements under a Sec. 761.62(c) risk-based approval.
EPA received no public comments on this provision.
14. Include Alternate Extraction and Analysis Under Sec. 761.79(h)--
Decontaminated Material
The Agency is clarifying that, under a Sec. 761.79(h) approval, a
responsible party can be permitted to perform extraction or analysis of
decontaminated material in a manner other than prescribed in Sec.
761.79(f). Prior to this change, EPA's practice has been to allow
responsible parties to request to modify or replace the use of an
extraction or analysis method for decontaminated material under Sec.
761.79(h), as they are considered part of sampling procedure. This
change clarifies that responsible parties have this option, by adding
extraction and analysis to the list of modifiable requirements under a
Sec. 761.79(h) approval. EPA received no public comments on this
provision.
15. Clarify Sampling Procedure for Non-Porous Surfaces
The Agency is finalizing its proposal to correct an inconsistency
with respect to non-porous surfaces in the site characterization
requirements for self-implementing cleanups of PCB remediation waste
under Sec. 761.61(a). The site characterization requirements in Sec.
761.61(a)(2) provide that site characterization may be conducted using
procedures included in 40 CFR part 761, subpart N. The method found in
Subpart N for sampling non-porous surfaces specifies that the sampling
area shall be divided into ``square portions approximately 2 meters on
each side'' and to ``[f]ollow the procedures in Sec. 761.302(a).'' See
Sec. 761.267(a). However, Sec. 761.302(a), which is the section of
the PCB regulations pertaining to post-cleanup sampling of non-porous
surfaces, specifies dividing the surface into 1-meter square portions
instead of 2-meter square portions. EPA is amending Sec. 761.267 by
adding the following italicized language to this provision, ``Follow
the procedures in Sec. 761.302(a), with the exception of the sampling
grid size,'' to correct the inconsistency. This change reflects the way
in which EPA has already been addressing the inconsistency. EPA
received two public comments in support of this provision.
16. Add Unit to Concentration in Sec. 761.1(b)(3)
The Agency is finalizing its proposal to modify text in Sec.
761.1(b)(3) to read ``PCB concentrations of >10 [micro]g/100 cm\2\.''
Previously, Sec. 761.1(b)(3) listed a concentration with only partial
units of reference, ``PCB concentrations of >10/100 cm\2\,'' which was
meaningless as written. It is clear from context that the text should
have read ``PCB concentrations of >10 [micro]g/100 cm\2\,'' which is
how surface concentrations otherwise appear throughout the PCB
regulations, including, for example in Sec. 761.79(b). EPA received
one public comment in support of this revision. EPA also proposed to
harmonize the ``greater/less than'' and ``greater/less than or equal
to'' symbols in this section but is not finalizing that change, as
doing so might create some inconsistency with the definitions section
of the PCB regulations.
17. Update References to ASTM Methods
The regulations at Sec. 761.19 incorporate by reference several
ASTM test method standards that have since been updated. EPA is adding
three updated methods, removing a withdrawn method, updating a method
which was withdrawn and replaced with a newer method, and updating
references to two methods which are currently unavailable on ASTM's
website. These ASTM standards reflect the current consensus of ASTM
members. EPA is making the following changes:
ASTM D93-09, Standard Test Methods for Flash Point by Pensky-
Martens Closed Tester, was approved by ASTM in 2009 and added to the
PCB regulations in 2012 at Sec. Sec. 761.71(b)(2)(vi) and
761.75(b)(8)(iii).\48\ EPA is adding as an alternative ASTM D8175-18,
Test Method for Finite Flash Point Determination of Liquid Wastes by
Pensky-Martens Closed Cup Tester.
---------------------------------------------------------------------------

\48\ 77 FR 2463, Jan. 18, 2012.
---------------------------------------------------------------------------

ASTM D3278-89, Standard Test Methods for Flash Point of Liquids by
Setaflash Closed-Cup Apparatus, was approved by ASTM in 1989 and added
to the PCB regulations in 1992 at Sec. 761.75(b)(8)(iii).\49\ EPA is
replacing the updated version, ASTM D3278-96 (Reapproved 2011),
Standard Test Methods for Flash Point of Liquids by Small Scale Closed-
Cup Apparatus, and adding ASTM D8174-18, Test Method for Finite Flash
Point Determination of Liquid Wastes by Small Scale Closed Cup Tester.
---------------------------------------------------------------------------

\49\ 57 FR 13323, Apr. 16, 1992.
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EPA is removing ASTM D2784-89, Standard Test Method for Sulfur in
Liquified Petroleum Gases (Oxy-hydrogen Burner or Lamp) from Sec.
761.19 and Sec. 761.71(a)(2)(vi). This test method was withdrawn in
June 2016 because it is archaic and not used in the industry.\50\
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\50\ <a href="https://compass.astm.org/Standards/WITHDRAWN/D2784.htm">https://compass.astm.org/Standards/WITHDRAWN/D2784.htm</a>.
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EPA is removing ASTM D3178-84, Standard Test Methods for Carbon and
Hydrogen in the Analysis Sample of Coke and Coal, replacing it with
D5373-16, Standard Test Methods for Determination of Carbon, Hydrogen
and Nitrogen in Analysis Samples of Coal and Carbon in Analysis Samples
of Coal and Coke, in Sec. Sec. 761.19 and 761.71(b)(2)(vi). ASTM
D3178-84 was replaced in June 2007 because there was no reproducibility
statement for D3178.\51\
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\51\ <a href="https://compass.astm.org/Standards/WITHDRAWN/D3178.htm">https://compass.astm.org/Standards/WITHDRAWN/D3178.htm</a>.
---------------------------------------------------------------------------

EPA is replacing ASTM D482-87, Standard Test Method for Ash from
Petroleum Products, with ASTM D482-13, Standard Test Method for Ash
from Petroleum Products, in Sec. 761.71(a)(2)(vi). EPA is also
replacing

[[Page 59681]]

ASTM D3278-89, Standard Test Methods for Flash Point of Liquids by
Setaflash Closed-Cup Apparatus, with ASTM D3278-96(R2011), Standard
Test Methods for Flash Point of Liquids by Small Scale Closed-Cup
Apparatus, in Sec. 761.75(b)(8)(iii) (see above). ASTM began building
its electronic library of standards in the 1990s, so the 1987 version
of ASTM D482 and the 1989 version of ASTM D3278 are no longer available
from the ASTM website. Therefore, the Agency is updating ASTM D482-87
and ASTM D3278-89 to list the most recent versions of the methods.
EPA has found that most of the entities that would have to comply
with these standards are already familiar with them, since it would be
difficult to be in the business of testing for PCBs without being
familiar with these industry consensus standards. The standards are all
readily available electronically or in print and are relatively
inexpensive. See Sec. 761.19. EPA received one public comment in
support of this provision.
18. Require a Wipe Sample Under Sec. 761.30(i)(4)
Section 761.30(i)(4), which governs characterization of PCB
contamination in natural gas pipe or natural gas pipeline systems,
previously read, in part, ``if no liquids are present, they must use
standard wipe samples in accordance with Subpart M of this part.'' This
language might be read to mean that all natural gas pipe or natural gas
pipeline systems must be characterized using standard wipe samples if
no liquids are present. However, this text was meant to convey that if
any person chooses to characterize natural gas pipe or natural gas
pipeline systems that do not contain liquids, then they must do so
using wipe samples.\52\ Therefore, EPA is finalizing its proposal to
replace the text with: ``if no liquids are present and they decide, in
their discretion, to characterize PCB contamination, the person must
use standard wipe samples in accordance with Subpart M of this part.''
See Sec. 761.30(i)(4). EPA received three public comments in support
of this provision.
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\52\ See PCB Q&A Manual. June 2014. Pg. 23 (``Under the use
authorization provisions at Sec. 761.30(i), if a pipeline system
once contained liquids at 50 ppm or greater but is now relatively
dry (i.e., there are no liquids available to test at existing
condensate collection points), then the owner/operator of the
pipeline system has no further sampling and analysis to do until
such time as liquids appear. EPA did not intend to require wipe
sampling for characterizing natural gas pipeline systems in use. . .
.''). <a href="https://www.epa.gov/sites/production/files/2015-08/documents/qacombined.pdf">https://www.epa.gov/sites/production/files/2015-08/documents/qacombined.pdf</a>.
---------------------------------------------------------------------------

19. High Efficiency Boilers Approval Application Requirements
EPA is finalizing its proposal to correct an editorial error in
Sec. 761.71. This section describes the required operating parameters
for high efficiency boilers that dispose of PCB waste. The requirements
for high efficiency boilers are divided into two sections, a section
for burning PCB-contaminated mineral oil dielectric fluid at Sec.
761.71(a) and a section for burning any other PCB-contaminated fluids
at Sec. 761.71(b). Mineral oil dielectric fluid is an insulating fluid
used in electrical equipment such as transformers. Other PCB-
contaminated fluids might include used oil, contaminated water, and
hydraulic fluid. Section 761.71(b) regulates high efficiency boilers
that burn PCB liquids other than mineral oil dielectric fluid, so EPA
is amending Sec. 761.71(b)(2)(iv) to correct an error by replacing the
phrase ``mineral oil dielectric fluid'' with ``PCB liquids.'' See Sec.
761.71(b)(2)(iv). EPA received one public comment in support of this
provision.
20. Mailing Address for Annual Reports
The owner or operator of any PCB disposal facility or commercial
storage facility submits an annual report to the EPA Regional
Administrator for the region in which the facility is located, pursuant
to Sec. 761.180(b)(3). EPA is finalizing its proposal to change the
recipient of the annual reports from the Regional Administrator to the
Director of the Office of Resource Conservation and Recovery, which is
the office in EPA Headquarters that manages the PCB cleanup and
disposal program. An analogous change is also being made in Sec. 761.3
under the definition of annual report. This change will reduce the
administrative burden on the Agency of compiling the data in the annual
reports, which is used to inform Agency actions. The address for
submission will be displayed prominently on the mandatory form. See
Sec. Sec. 761.3 and 761.180(b)(3). EPA received one public comment in
support of this provision.
21. Update Address for Submission of EPA Form 7710-53
EPA is finalizing its proposal to remove the address for submission
of EPA form 7710-53, ``Notification of PCB Activity,'' from the
regulations. This change will allow EPA to more easily update the
mailing address in the future without undertaking a regulatory change.
The mailing address will continue to appear on the form itself and can
be updated through the Information Collection Request (ICR) process.
This change will expedite future address changes and thus streamline
the distribution of mail and reduce the processing time for these
forms. See Sec. Sec. 761.205(a)(3) and 761.205(d). EPA received one
public comment in support of this provision.
22. Add Field for Facility Email Address and EPA PCB Email Address to
EPA Form 7710-53
EPA is finalizing its proposal to require that an email address
must be submitted on the EPA form 7710-53, ``Notification of PCB
Activity.'' Additionally, EPA is adding the EPA PCB email address
(<a href="/cdn-cgi/l/email-protection#420d10011012010031022732236c252d34">[email&#160;protected]</a>) to the notification form to facilitate any questions
from members of the public. These changes will improve communication
and reduce the processing time for these forms. Any Notification of PCB
Activity form submitted prior to the effective date of this rulemaking
will not be required to be resubmitted, unless the facility would like
to add or update information (including the email address). See
Sec. Sec. 761.205(a)(3) and 761.205(d).
EPA received one public comment in support of this provision and
one public comment which questioned if EPA form 7710-53 will need to be
resubmitted to provide an email address. The form will not be required
to be resubmitted to provide an email address, and only needs to be
resubmitted if something changes at the site. While not mandating
resubmission, the Agency does encourage sites to resubmit the form to
supply an email address.
23. Sample Site Selection Instructions for Pipelines
Subpart M provides a number of steps that must be followed when
selecting the locations for sampling to characterize natural gas
pipeline. EPA found that, due to rounding errors, the instructions for
a length of pipe greater than seven segments but shorter than three
miles in length were incorrect. EPA is finalizing its proposal to
modify the instructions and the example given in Sec.
761.247(b)(2)(ii)(B) to clarify where each sample must be taken along
pipes of this length. This change is a technical correction and does
not influence the number of samples taken or the burden on the owner or
operator of the pipe. See Sec. 761.247(b)(2)(ii)(B). EPA received one
public comment in support of this provision.
24. Remove Reference to Method 3500B
SW-846 is organized such that several similar methods are grouped
together in

[[Page 59682]]

a series. The 3500 series contains extraction procedures used for the
preparation of samples for analysis of organic parameters. These
techniques include Liquid-Liquid Extraction, Solid-Phase Extraction,
Soxhlet Extraction, and Supercritical Fluid Extraction, among others.
Method 3500B (recently updated to Method 3500C) is not a detailed
method where step-by-step instructions are discussed.53 54
Rather, Method 3500B simply provides general guidance for all the
methods within its series (i.e., the 3500 series), including the
extraction methods being added as part of this rulemaking. Also, Method
3500B or 3500C is already referenced in every 3500 series method EPA is
adding to the PCB regulations. Therefore, EPA feels that it is
unnecessary to reference Method 3500B in the PCB regulations directly
and is removing the reference from the PCB regulations. The removal of
Method 3500B from the regulations does not influence any of the 3500
series methods currently in or being added to the PCB regulations. The
PCB regulatory sections affected are Sec. Sec.
761.61(a)(5)(i)(B)(2)(iv), 761.253, 761.272, 761.292, 761.358, and
761.395. EPA received one public comment in support of this provision.
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\53\ U.S. EPA, Method 3500B Organic Extraction and Sample
Preparation. Office of Land and Emergency Management, Office of
Resource Conservation and Recovery, Materials Recovery and Waste
Management Division (5303P). Washington, DC December 1996.
\54\ U.S. EPA, Method 3500C Organic Extraction and Sample
Preparation. Office of Land and Emergency Management, Office of
Resource Conservation and Recovery, Materials Recovery and Waste
Management Division (5303P). Washington, DC February 2007.
---------------------------------------------------------------------------

25. Correct References to SW-846
The official title of the EPA publication known as SW-846 was
updated from ``Test Methods for Evaluating Solid Waste'' to ``Test
Methods for Evaluating Solid Waste: Physical/Chemical Methods.'' There
are several references to this publication throughout the PCB
regulations. EPA is finalizing its proposal to update the definition of
SW-846 in Sec. 761.3 with the current official title and to refer to
it as ``SW-846'' throughout the PCB regulations, for readability. See
Sec. Sec. 761.3, 761.60(g)(1)(iii), 761.61(a)(5)(i)(B)(2)(iv),
761.253(a), 761.272, 761.292, 761.358, 761.395(b)(1). EPA received one
public comment in support of this provision.
26. Correct References to EPA's PCB Website
Throughout the PCB regulations, there are several references to
EPA's PCB website. In 2015, as part of a redesign, the URL for the EPA
PCB web page changed from <a href="https://www.epa.gov/pcb">https://www.epa.gov/pcb</a> to <a href="https://www.epa.gov/pcbs">https://www.epa.gov/pcbs</a>. EPA is finalizing its proposal to update those
references throughout the PCB regulations. See Sec. Sec. 761.130(e),
761.205(a)(3), 761.243(a), 761.386(e). EPA received one public comment
in support of this provision, and one comment that suggested removing
weblinks completely from the PCB regulations to avoid the need for
future updates. EPA finds, however, that periodic maintenance of web
links in the regulations is outweighed by the benefits of providing a
direct link in the PCB regulations to applicable information for the
regulated community.
27. Change ``He'' to ``They''
The PCB regulations previously referred to generic individuals such
as the Regional Administrator or facility owners as ``he,'' ``his,''
``he/she,'' or ``he or she.'' EPA is finalizing its proposal to replace
all such references with the gender neutral ``they'' and ``their.'' See
Sec. Sec. 761.3, 761.20(e)(3)(ii)(B), 761.20(e)(4)(i),
761.20(e)(4)(ii), 761.50(b)(3)(i)(A), 761.60(b)(2)(v)(C),
761.61(a)(8)(i)(B), 761.65(g), 761.65(h), 761.70(d)(4)(i),
761.75(c)(3)(i), 761.75(c)(4), 761.77(a)(1)(ii)(B), 761.77(a)(2),
761.77(b), 761.120(b)(2), 761.125(c)(3)(iii), 761.125(c)(4)(iv),
761.180(b)(4), 761.207(c), 761.212(a), 761.213(a)(4), 761.213(b),
761.214(a), 761.216(a), 761.217(a)(2)(ii). EPA received one public
comment in support of this provision.
28. Change ``On Site'' to ``On-Site''
The term ``on site'' is included in the definitions at Sec. 761.3,
but the PCB regulations previously used the term ``on-site''
throughout. EPA is finalizing its proposal to modify Sec. 761.3 to
read ``on-site'' to improve the readability of the PCB regulations. See
Sec. 761.3. EPA received no public comments on this provision.
29. Correct Reference to Methods for Standard Wipe Test Samples
Section 761.314 ``Chemical analysis of standard wipe test samples''
previously instructed the reader to ``perform the chemical analysis of
standard wipe test samples in accordance with Sec. 761.272.'' While
Sec. 761.272 does contain the allowable methods for wipe test samples,
it also lists several other methods that would not be appropriate for
wipe test samples. This reference has been corrected to Sec. 761.253,
which is specific to wipe samples. EPA received one public comment in
support of this provision.
30. Incorporation by Reference
The Agency is incorporating by reference SW-846 Test Methods 3541,
3545A, 3546, 3510C, 3520C, 3535A, 3550C, and 8082A into 40 CFR part 761
under Sec. Sec. 761.60, 761.61, 761.253, 761.272, 761.292, 761.358,
and 761.395. Finally, the Agency is incorporating by reference ASTM
standards D482-13, D3278-96(R2011), D4059-00, D5373-16, D8174-18, and
D8175-18 into 40 CFR part 761 under Sec. Sec. 761.60, 761.71, and
761.75. (See section II.B of this preamble for summaries of the IBR
material.)
The following standards appear in the amendatory text of this
document and have already been approved for the locations in which they
appear: ASTM D93-09, D129-64(R1968), D240-87, D524-88, D808-87, D923-
86, D923-89, D1266-87, D1796-83, D2158-89, D2709-88, and E258-67.
The SW-846 Test Methods being incorporated by reference are
published in the test methods compendium known as, ``Test Methods for
Evaluating Solid Waste, Physical/Chemical Methods,'' EPA Publication
SW-846, Third Edition, available at <a href="https://www.epa.gov/hw-sw846">https://www.epa.gov/hw-sw846</a>. ASTM
materials may be obtained from ASTM International, 100 Barr Harbor Dr.,
P.O. Box C700, West Conshohocken, PA 19428-2959, or by calling (877)
909-ASTM, or at <a href="http://www.astm.org">www.astm.org</a>. EPA methods being incorporated by
reference are also included in the docket. EPA received one public
comment in support of this provision.

IV. Economic Impacts of the Final Rulemaking

One focus of the final rule is expanding the allowable PCB
extraction methods, which impacts testing laboratories (NAICS code
541380) that currently perform PCB extractions under TSCA. Based on
method-specific certifications and communication with laboratory
personnel, EPA estimates that approximately 19 laboratories are
impacted by the rule. Further, EPA estimates that these 19 laboratories
perform approximately 65,000 relevant extractions each year. Some
laboratories may experience a one-time cost of purchasing equipment
used to perform one of the extraction methods. However, the decreases
in solvent and labor hours required to perform the extraction methods
are expected to result in net annual cost savings of approximately $4.7
million, annualized at a discount rate of seven percent. The cost
savings at a discount rate of three percent is $6.6 million.

[[Page 59683]]

The revisions to Sec. 761.61(b) may impact any facility performing
a PCB site remediation under Sec. 761.61(b). No data are available on
the exact number of Sec. 761.61(b) remediations performed annually,
but EPA estimates that there will be between 430 and 460 relevant
remediations per year, based on an analysis of 2018 and 2019 hazardous
waste manifests. Certain aspects of this provision increase burden on
the regulated community through certain requirements (e.g.,
recordkeeping, notification, sampling). However, EPA is also allowing
for disposal of relevant waste at RCRA Subtitle C landfills under Sec.
761.61(b), in addition to the existing disposal options (e.g., TSCA
landfills, TSCA incinerators), which will decrease transportation and
disposal costs related to non-hazardous, non-liquid PCB remediation
waste for the regulated community. Overall, the revisions to Sec.
761.61(b) are expected to result in net annual cost savings between
$9.8 million and $11.5 million, annualized at a discount rate of seven
percent and three percent, respectively.
Disallowing PCB bulk product waste to be used as roadbed material
has the potential to create a slight increase in costs for the
regulated community. Facilities that would have used PCB bulk product
waste on-site as roadbed material under asphalt now have to pay to
transport the waste to a municipal solid waste landfill and pay the
associated tipping fee for disposal. EPA believes that the practice of
using PCB bulk product waste as roadbed is exceedingly rare. However,
in an effort to incorporate all potential impacts of the final rule,
the Economic Assessment modeled a single party using PCB bulk product
waste as roadbed per year. EPA estimates that the cost increase for the
regulated community will be between $740 and $6,630 per year.
EPA anticipates that the added flexibilities for emergency
situations will result in cost savings for the regulated community. EPA
estimates that there will be between 12 and 60 emergencies each year
where the regulated community may use the flexibilities. A lack of data
prevents an overall quantitative estimate of the cost savings from this
provision. However, impacted parties are expected to save money and
time by avoiding delays associated with searches for the source of the
spill during an emergency situation where the search is likely to be
time-consuming and unsuccessful, and by being able to manage waste
under the less burdensome procedures of Sec. 761.125(b), rather than
Sec. 761.125(c). The regulated community is also expected to see a
decrease in sampling and testing expenditures.
The change to harmonize the general disposal requirements for PCB
remediation waste is in line with current EPA policy, guidance and
practice. Therefore, EPA estimates that this change will not have any
economic impact.
The Economic Assessment for the final rule is constrained by the
lack of relevant data, largely because the final rule makes changes to
provisions that are self-implementing and/or require no EPA
notification. EPA has quantified costs and cost savings when possible.
When quantification has not been possible, EPA has analyzed the costs
and cost savings qualitatively. The Economic Assessment associated with
the final rule can be referenced for a greater level of detail related
to the costs and benefits of the revisions.

V. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review under Executive
Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563
(76 FR 3821, January 21, 2011). Any changes made in response to OMB
recommendations have been documented in the docket. The Economic
Assessment is available in the docket and is summarized in Section I.D
What are the projected economic impacts of this action? of the
preamble.

B. Paperwork Reduction Act (PRA)

The information collection activities in this final rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the PRA, 44 U.S.C. 3501 et seq. The Information Collection
Request (ICR) document that the EPA prepared has been assigned EPA ICR
number 2688.02 (2050-NEW). You can find a copy of the ICR in the docket
for this rule, and it is briefly summarized here.
Respondents/affected entities: The information collection
requirements of the final rule affect facilities that will read the
final rule, responsible parties using Sec. 761.61(b)(1) performance-
based cleanup, responsible parties using Sec. 761.66 waivers in
emergency situations, commercial storers and disposers submitting
annual reports, and entities submitting Notification of PCB Activity
forms.
Respondent's obligation to respond: The recordkeeping and
notification requirements are required for parties performing relevant
activities (e.g., using Sec. 761.66 waivers in emergency situations).
These requirements are described in detail in the ICR Supporting
Statement.
Estimated number of respondents: 1,085.
Frequency of response: On occasion/as necessary.
Total estimated burden: 8,276 hours.
Total estimated cost: $1,051,643.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic
impact on a substantial number of small entities under RFA, 5 U.S.C.
601 et seq. In making this determination, the impact of concern is any
significant adverse economic impact on small entities. An agency may
certify that a rule will not have a significant economic impact on a
substantial number of small entities if the rule relieves burden or has
no net burden on the small entities subject to the rule. These changes
would reduce the impacts on all small entities subject to the rule, so
there are no significant impacts to any small entities. We have
therefore concluded that this action will relieve regulatory burden for
all directly regulated small entities. Details of this analysis are
presented in the Economic Assessment, which is in the public docket for
this action.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. EPA estimates that
the final rule would result in net annual cost savings of between $14.4
and $16.2 million, assuming a seven percent discount rate ($16.3 to
$18.1 at a three percent discount rate). As a result, EPA expects that
the rule would not result in annual expenditures exceeding $100 million
annually and therefore would not be subject to requirements of section
202 of UMRA as listed above.

E. Executive Order 13132: Federalism

This action 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

[[Page 59684]]

responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

This action does not have Tribal implications as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000) because the
action is not expected to result in any adverse environmental or human
health impacts on Tribal entities. In addition, the action is expected
to result in a cost savings and is not expected to result in any
adverse financial impacts on Tribal entities. Thus, Executive Order
13175 does not apply to this rule. Consistent with the EPA Policy on
Consultation and Coordination with Indian Tribes, the EPA prepared a
Tribal consultation and coordination plan and sent a letter to the
tribes on July 13, 2021, inviting consultation. EPA did not receive any
comments from tribes.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

This action is not subject to Executive Order 13045 (62 FR. 19885,
April 23, 1997) because it is not an economically significant
regulatory action as defined by Executive Order 12866. In addition,
because the rule would not increase risk related to exposure to
hazardous materials, the Agency does not believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use

This action is not a ``significant energy action'' under Executive
Order 13211, ``Actions Concerning Regulations that Affect Energy
Supply, Distribution, or Use'' (May 18, 2001) because it is not likely
to have a significant adverse effect on the supply, distribution or use
of energy. The proposed rule would not directly regulate energy
production or consumption and is expected to result in net cost
savings.

I. National Technology Transfer and Advancement Act (NTTAA)

This action involves technical standards. In this rulemaking, the
EPA incorporates voluntary consensus standards (VCSs) developed by both
ASTM and the Agency into the rulemaking, consistent with the National
Technology Transfer and Advancement Act (NTTAA). These VCSs support PCB
cleanups as well sampling activities including the extraction and
analysis of PCBs. For more details on the technical standards that EPA
is using in this rulemaking, please see Section III.G.--Incorporation
by Reference.

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) 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 (people of color and/or indigenous
peoples) and low-income populations.
The EPA believes that the human health or environmental conditions
that exist prior to this action result in or have the potential to
result in disproportionate and adverse human health or environmental
effects on people of color, low-income populations and/or indigenous
peoples. Examples of these potential disproportionate effects include
PCB contamination occuring more frequently in these communities, as
well as disproportionate effects from emergency situations and climate
change.
The EPA believes that this action is likely to reduce existing
disproportionate and adverse effects on people of color, low-income
populations and/or indigenous peoples. Generally, the final rule will
modernize the PCB regulations, making it easier and more affordable to
clean up contaminated sites, while continuing to ensure that the
requirements remain protective of health and the environment.
Underserved, disadvantaged, and overburdened communities are expected
to benefit from quicker, more cost-effective, compliant cleanups under
the final rule. For example, adding explicit cleanup provisions under
Sec. 761.61(b), including the requirements to notify EPA and follow
specific sampling protocols, will provide additional assurance that
sites are properly remediated and enhance compliance and enforcement.
Furthermore, the increased flexibility for emergency situations
provided under Sec. 761.66 will allow the Agency to work
collaboratively with responsible parties to more quickly respond to
releases of PCBs caused by natural disasters and other emergency
situations, which can disproportionately impact such communities.

K. Congressional Review Act (CRA)

This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action 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, Incorporation by
reference, Labeling, Polychlorinated biphenyls (PCBs), Reporting and
recordkeeping requirements.

Barry N. Breen,
Principal Deputy Assistant Administrator, Office of Land and Emergency
Management.

For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations, part 761 is amended as follows:

PART 761--POLYCHLORINATED BIPHENYLS (PCBs) MANUFACTURING,
PROCESSING, DISTRIBUTION IN COMMERCE, AND USE PROHIBITIONS

0
1. The authority citation for part 761 continues to read as follows:

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

Subpart A--General

0
2. Amend Sec. 761.1 by revising paragraph (b)(3) to read as follows:

Sec. 761.1 Applicability.

* * * * *
(b) * * *
(3) Most provisions in this part apply only if PCBs are present in
concentrations above a specified level. Provisions that apply to PCBs
at concentrations of <50 ppm apply also to contaminated surfaces at PCB
concentrations of <=10 [mu]g/100 cm\2\. Provisions that apply to PCBs
at concentrations of >=50 to <500 ppm apply also to contaminated
surfaces at PCB concentrations of >10 [mu]g/100 cm\2\ to <100 [mu]g/100
cm\2\. Provisions that apply to PCBs at concentrations of >=500 ppm
apply also to contaminated surfaces at PCB concentrations of >=100
[mu]g/100 cm\2\.
* * * * *

0
3. Amend Sec. 761.3 by:
0
a. Revising definitions for ``Administrator'' and ``Annual report'';
0
b. Adding in alphabetical order the definition for ``As-found
concentration'';
0
c. Revising the definition for ``ASTM'';
0
d. Adding in alphabetical order definitions for ``CWA'', ``Director,
Office

[[Page 59685]]

of Resource Conservation and Recovery'', and ``Emergency situation'';
0
e. Revising definitions for ``Non-porous surface'' and ``NTIS'';
0
f. Removing the definition for ``On site'' and adding in its place the
definition for ``On-site''; and
0
g. Revising definition for ``SW-846''.
The revisions and additions read as follows:

Sec. 761.3 Definitions.

* * * * *
Administrator means the Administrator of the Environmental
Protection Agency, or any employee of the Agency to whom the
Administrator may either herein or by order delegate their authority to
carry out their functions, or any person who shall by operation of law
be authorized to carry out such functions.
* * * * *
Annual report means the completed EPA Form 6200-025 submitted each
year by each disposer and commercial storer of PCB waste to the
Director, Office of Resource Conservation and Recovery. The annual
report is a brief summary of the information included in the annual
document log.
* * * * *
As-found concentration means the concentration measured in samples
collected in-situ (i.e., prior to being moved or disturbed for cleanup
and/or disposal) from environmental media or material, unless otherwise
specifically provided. For example, media must not be disturbed, nor
may they be diluted (e.g., excavated, placed on a pile, and sampled
after such placement), before characterization sampling is conducted.
Sampling media in piles and existing accumulations would be considered
``as-found'' if the media were already in piles when the site was first
visited by the responsible party, such as during the redevelopment of
abandoned properties with historic PCB contamination. The as-found
concentration is distinct from the source concentration, which is the
concentration of the PCBs in the material that was originally spilled,
released, or otherwise disposed of at the site.
ASTM means ASTM International, 100 Barr Harbor Drive, West
Conshohocken, PA 19428-2959.
* * * * *
CWA means Clean Water Act, also known as the Federal Water
Pollution Control Act (33 U.S.C. 12-51 et seq.).
* * * * *
Director, Office of Resource Conservation and Recovery means the
Director of the Office of Resource Conservation and Recovery of the
Office of Land and Emergency Management of the United States
Environmental Protection Agency. Submissions to the Director shall be
sent to 1200 Pennsylvania Ave. NW, MC5303T, Washington, DC 20460 or
through an electronic method of submission, as applicable.
* * * * *
Emergency situation means adverse conditions caused by manmade or
natural incidents that threaten lives, property, or public health and
safety; require prompt responsive action from the local, State, Tribal,
territorial, or Federal government; and result in or are reasonably
expected to result in: (1) A declaration by either the President of the
United States or Governor of the affected State of a natural disaster
or emergency; or, (2) an incident funded under FEMA via a Stafford Act
disaster declaration or emergency declaration. Examples of emergency
situations may include civil emergencies or adverse natural conditions,
such as hurricanes, earthquakes, or tornados.
* * * * *
Non-porous surface means a smooth, unpainted solid surface that
limits penetration of liquid containing PCBs beyond the immediate
surface. Examples are: smooth uncorroded metal; natural gas pipe with a
thin porous coating originally applied to inhibit corrosion; smooth
glass; smooth glazed ceramics; impermeable polished building stone such
as marble or granite; and medium- and high-density plastics, such as
polycarbonates and melamines, that do not absorb solvents.
NTIS means the National Technical Information Service, 5301 Shawnee
Road, Alexandria, VA 22312, telephone: (703) 605-6000.
On-site means within the boundaries of a contiguous property unit.
* * * * *
SW-846 means the document having the title ``SW-846, Test Methods
for Evaluating Solid Waste: Physical/Chemical Methods,'' also known as
the SW-846 Compendium, which is available online at <a href="https://www.epa.gov/hw-sw846">https://www.epa.gov/hw-sw846</a>.
* * * * *

0
4. Section 761.19 is revised to read as follows:

Sec. 761.19 Incorporation by reference.

Certain material is incorporated by reference into this part with
the approval of the Director of the Federal Register under 5 U.S.C.
552(a) and 1 CFR part 51. All approved incorporation by reference (IBR)
material is available for inspection at the Environmental Protection
Agency (EPA) and at the National Archives and Records Administration
(NARA). Contact EPA at EPA Docket Center (EPA/DC), Rm. 3334, EPA West
Bldg., 1301 Constitution Ave. NW, Washington, DC 20460-0001; (202) 566-
0270; <a href="http://www.epa.gov/dockets">www.epa.gov/dockets</a>. For information on the availability of this
material at NARA, visit <a href="http://www.archives.gov/federal-register/cfr/ibr-locations.html">www.archives.gov/federal-register/cfr/ibr-locations.html</a> or email <a href="/cdn-cgi/l/email-protection#1c7a6e3275726f6c797f687573725c727d6e7d327b736a">[email&#160;protected]</a>. The material may be
obtained from the following sources:
(a) ASTM International, 100 Barr Harbor Dr., P.O. Box C700, West
Conshohocken, PA 19428-2959; (877) 909-ASTM <a href="http://www.astm.org">www.astm.org</a>.
(1) ASTM D93-09, Standard Test Methods for Flash Point by Pensky-
Martens Closed Tester, approved December 15, 2009; IBR approved for
Sec. Sec. 761.71; 761.75.
(2) ASTM D129-64 (Reapproved 1968), Standard Test Method for Sulfur
in Petroleum Products (General Bomb Method), approved 1968; IBR
approved for Sec. 761.71.
(3) ASTM D240-87, Standard Test Method for Heat of Combustion of
Liquid Hydrocarbon Fuel by Bomb Calorimeter, approved March 27, 1987;
IBR approved for Sec. 761.71.
(4) ASTM D482-13, Standard Test Method for Ash from Petroleum
Products, approved June 15, 2013; IBR approved for Sec. 761.71.
(5) ASTM D524-88, Standard Test Method for Ramsbottom Carbon
Residue of Petroleum Products, approved 1988; IBR approved for Sec.
761.71.
(6) ASTM D808-87, Standard Test Method for Chlorine in New and Used
Petroleum Products (Bomb Method), approved 1987; IBR approved for Sec.
761.71.
(7) ASTM D923-86, Standard Test Method for Sampling Electrical
Insulating Liquids, Approved 1986, IBR approved for Sec. 761.60.
(8) ASTM D923-89, Standard Methods of Sampling Electrical
Insulating Liquids, approved 1989; IBR approved for Sec. 761.60.
(9) ASTM D1266-87, Standard Test Method for Sulfur in Petroleum
Products (Lamp Method), approved 1987; IBR approved for Sec. 761.71.
(10) ASTM D1796-83 (Reapproved 1990), Standard Test Method for
Water and Sediment in Fuel Oils by the Centrifuge Method (Laboratory
Procedure), approved 1990; IBR approved for Sec. 761.71.
(11) ASTM D2158-89, Standard Test Method for Residues in Liquified
Petroleum (LP) Gases, approved 1989; IBR approved for Sec. 761.71.
(12) ASTM D2709-88, Standard Test Method for Water and Sediment in

[[Page 59686]]

Distillate Fuels by Centrifuge, approved 1988; IBR approved for Sec.
761.71.
(13) ASTM D3278-96 (Reapproved 2011), Standard Test Methods for
Flash Point of Liquids by Small Scale Closed-Cup Apparatus, approved
June 1, 2011; IBR approved for Sec. 761.75.
(14) ASTM D4059-00, Standard Test Method for Analysis of
Polychlorinated Biphenyls in Insulating Liquids by Gas Chromatography,
approved October 10, 2000; IBR approved for Sec. 761.60.
(15) ASTM D5373-16, Standard Test Methods for Determination of
Carbon, Hydrogen and Nitrogen in Analysis Samples of Coal and Carbon in
Analysis Samples of Coal and Coke, approved September 1, 2016; IBR
approved for Sec. 761.71.
(16) ASTM D8174-18, Test Method for Finite Flash Point
Determination of Liquid Wastes by Small Scale Closed Cup Tester,
approved March 15, 2018; IBR approved for Sec. Sec. 761.71; 761.75.
(17) ASTM D8175-18, Test Method for Finite Flash Point
Determination of Liquid Wastes by Pensky-Martens Closed Cup Tester,
approved March 15, 2018; IBR approved for Sec. Sec. 761.71; 761.75.
(18) ASTM E258-67 (Reapproved 1987), Standard Test Method for Total
Nitrogen Inorganic Material by Modified KJELDAHL Method approved 1987;
IBR approved for Sec. 761.71.
(b) EPA, Office of Resource Conservation and Recovery, 1200
Pennsylvania Ave. NW (5304T), Washington, DC 20460; <a href="http://www.epa.gov/hw-sw846">www.epa.gov/hw-sw846</a>.
(1) SW-846 Method 3510C, Separatory Funnel Liquid-Liquid
Extraction, Revision 3, Approved December 1996; IBR approved for
Sec. Sec. 761.61, 761.272, and 761.292.
(2) SW-846 Method 3520C, Continuous Liquid-Liquid Extraction,
Revision 3, Approved December 1996; IBR approved for Sec. Sec. 761.61,
761.272, and 761.292.
(3) SW-846 Method 3535A, Solid-Phase Extraction (SPE), Revision 1,
Approved February 2007; IBR approved for Sec. Sec. 761.61, 761.272,
and 761.292.
(4) SW-846 Method 3540C, Soxhlet Extraction, Revision 3, Approved
December 1996; IBR approved for Sec. Sec. 761.61, 761.253, 761.272,
761.292, 761.358, and 761.395.
(5) SW-846 Method 3541, Automated Soxhlet Extraction, Approved
September 1994; IBR approved for Sec. Sec. 761.61, 761.253, 761.272,
761.292, 761.358, and 761.395.
(6) SW-846 Method 3545A, Pressurized Fluid Extraction (PFE),
Revision 1, Approved February 2007; IBR approved for Sec. Sec. 761.61,
761.253, 761.272, 761.292, 761.358, and 761.395.
(7) SW-846 Method 3546, Microwave Extraction, Approved February
2007; IBR approved for Sec. Sec. 761.61, 761.253, 761.272, 761.292,
761.358, and 761.395.
(8) SW-846 Method 3550C, Ultrasonic Soxhlet Extraction, Revision 3,
Approved February 2007; IBR approved for Sec. Sec. 761.253, and
761.395.
(9) SW-846 Method 8082A, Polychlorinated Biphenyls (PCBs) By Gas
Chromatography, Revision 1, Approved February 2007; IBR approved for
Sec. Sec. 761.60, 761.61, 761.253, 761.272, 761.292, 761.358, and
761.395.

Note 1 to paragraph (b): Hard copies of these materials may be
obtained from the National Technical Information Service, 5301
Shawnee Road, Alexandria, VA 22312, or by calling (800) 553-6847 or
(703) 605-6000.

Subpart B--Manufacturing, Processing, Distribution in Commerce, and
Use of PCBs and PCB Items

0
5. Amend Sec. 761.20 by revising paragraphs (e)(3)(ii)(B), (e)(4)(i),
and (ii) to read as follows:

Sec. 761.20 Prohibitions and exceptions.

* * * * *
(e) * * *
(3) * * *
(ii) * * *
(B) The burner will burn the used oil only in a combustion facility
identified in paragraph (e)(1) of this section and identify the class
of burner they qualify under.
(4) * * *
(i) Marketers. Marketers who first claim that the used oil fuel
contains no detectable PCBs must include among the records required by
40 CFR 279.72(b) and 279.74(b) and (c), copies of the analysis or other
information documenting their claim, and they must include among the
records required by 40 CFR 279.74(a) and (c) and 279.75, a copy of each
certification notice received or prepared relating to transactions
involving PCB-containing used oil.
(ii) Burners. Burners must include among the records required by 40
CFR 279.65 and 279.66, a copy of each certification notice required by
paragraph (e)(3)(ii) of this section that they send to a marketer.
* * * * *

0
6. Amend Sec. 761.30 by revising paragraph (i)(4) to read as follows:

Sec. 761.30 Authorizations.

* * * * *
(i) * * *
(4) Any person characterizing PCB contamination in natural gas pipe
or natural gas pipeline systems must do so by analyzing organic liquids
collected at existing condensate collection points in the pipe or
pipeline system. The level of PCB contamination found at a collection
point is assumed to extend to the next collection point downstream. Any
person characterizing multi-phasic liquids must do so in accordance
with Sec. 761.1(b)(4); if no liquids are present and they choose, in
their discretion, to characterize PCB contamination, the person must
use standard wipe samples in accordance with subpart M of this part.
* * * * *

Subpart D--Storage and Disposal

0
7. Amend Sec. 761.50 by revising paragraphs (b)(3)(i)(A) and
(b)(3)(ii) introductory text to read as follows:

Sec. 761.50 Applicability.

* * * * *
(b) * * *
(3) * * *
(i) * * *
(A) Sites containing these wastes are presumed not to present an
unreasonable risk of injury to health or the environment from exposure
to PCBs at the site. However, the EPA Regional Administrator may inform
the owner or operator of the site that there is reason to believe that
spills, leaks, or other uncontrolled releases or discharges, such as
leaching, from the site constitute ongoing disposal that may present an
unreasonable risk of injury to health or the environment from exposure
to PCBs at the site, and may require the owner or operator to generate
data necessary to characterize the risk. If after reviewing any such
data, the EPA Regional Administrator makes a finding, that an
unreasonable risk exists, then they may direct the owner or operator of
the site to dispose of the PCB remediation waste in accordance with
Sec. 761.61 such that an unreasonable risk of injury no longer exists.
* * * * *
(ii) Any person responsible for PCB waste that was either placed in
a land disposal facility, spilled, or otherwise released into the
environment on or after April 18, 1978, but prior to July 2, 1979,
where the concentration of the spill or release was >=500 ppm; or
placed in a land disposal facility, spilled, or otherwise released into
the environment on or after July 2, 1979, where the concentration of
the spill or release was >=50 ppm, must dispose of it in accordance
with either of the following:
* * * * *

0
8. Amend Sec. 761.60 by revising paragraphs (b)(2)(v)(C), (g)(1)(iii),
and (g)(2)(ii) to read as follows:

[[Page 59687]]

Sec. 761.60 Disposal requirements.

* * * * *
(b) * * *
(2) * * *
(v) * * *
(C) There is other good cause shown. As part of this evaluation,
the Assistant Administrator will consider the impact of their action on
the incentives to construct or expand PCB incinerators.
* * * * *
(g) * * *
(1) * * *
(iii) Unless otherwise specified in this part, any person
conducting the chemical analysis of PCBs shall do so using gas
chromatography. Any gas chromatographic method that is appropriate for
the material being analyzed may be used, including EPA Method 608.3,
``Organochlorine Pesticides and PCBs'' (see 40 CFR part 136, Appendix
A), or SW-846 Method 8082A (incorporated by reference in Sec. 761.19);
and ASTM D4059-00 (incorporated by reference, see Sec. 761.19).
(2) * * *
(ii) For purposes of complying with the marking and disposal
requirements, representative samples may be taken from either the
common containers or the individual electrical equipment to determine
the PCB concentration. Except, that if any PCBs at a concentration of
500 ppm or greater have been added to the container or equipment then
the total container contents must be considered as having a PCB
concentration of 500 ppm or greater for purposes of complying with the
disposal requirements of this subpart. For purposes of this paragraph,
representative samples of mineral oil dielectric fluid are either
samples taken in accordance with ASTM D923-86 or ASTM D923-89 (both
incorporated by reference, see Sec. 761.19) or samples taken from a
container that has been thoroughly mixed in a manner such that any PCBs
in the container are uniformly distributed throughout the liquid in the
container.
* * * * *

0
9. Amend Sec. 761.61 by revising paragraphs (a)(3)(ii),
(a)(5)(i)(B)(2)(iv), (a)(7), (a)(8) introductory text, (a)(8)(i)(A) and
(B), (a)(8)(ii) introductory text, (b), (c) paragraph heading, and
(c)(1) to read as follows:

Sec. 761.61 PCB remediation waste.

* * * * *
(a) * * *
(3) * * *
(ii) Within 30 calendar days of receiving the notification, the EPA
Regional Administrator will respond in writing approving of the self-
implementing cleanup, disapproving of the self-implementing cleanup, or
requiring additional information. If the EPA Regional Administrator
does not respond within 30 calendar days of receiving the notice, the
person submitting the notification may proceed with the cleanup
according to the information the person provided to the EPA Regional
Administrator. If, upon review of the notification, the EPA Regional
Administrator determines that the notification does not contain all of
the information required by paragraph (a)(3)(i) of this section,
sufficient to ensure compliance with paragraphs (a)(4) through (9) of
this section at the site, they may require the submission of additional
information. The cleanup and disposal must comply with all applicable
requirements of paragraphs (a)(4) through (9) of this section. Once
cleanup is underway, the person conducting the cleanup must provide any
proposed changes from the notification to the EPA Regional
Administrator in writing no less than 14 calendar days prior to the
proposed implementation of the change. The EPA Regional Administrator
will determine in their discretion whether to accept the change and
will respond to the change notification verbally within 7 calendar days
and in writing within 14 calendar days of receiving it. If the EPA
Regional Administrator does not respond verbally within 7 calendar days
and in writing within 14 calendar days of receiving the change notice,
the person who submitted it may proceed with the cleanup according to
the information in the change notice provided to the EPA Regional
Administrator, subject to the submission of additional information if
the Regional Administrator determines it is needed to address the
elements of paragraph (a)(3)(i), of this section and in compliance with
all applicable requirements of paragraphs (a)(4) through (9) of this
section and other applicable requirements of this part.
* * * * *
(5) * * *
(i) * * *
(B) * * *
(2) * * *
(iv) The generator must provide written notice, including the
quantity to be shipped and highest concentration of PCBs at least 15
days before the first shipment of bulk PCB remediation waste from each
cleanup site by the generator, to each off-site facility where the
waste is destined for an area not subject to a TSCA PCB Disposal
Approval. The generator must select applicable method(s) from the
following list to extract PCBs and determine the PCB concentration from
individual and composite samples of PCB remediation waste: SW-846
Method 3510C, SW-846 Method 3520C, SW-846 Method 3535A, SW-846 Method
3540C, SW-846 Method 3541, SW-846 Method 3545A, SW-846 Method 3546, or
SW-846 Method 8082A (all incorporated by reference, see Sec. 761.19).
Modifications to the methods listed in this paragraph or alternative
methods not listed may be used if validated under Subpart Q of this
part or authorized in a Sec. 761.61(c) approval.
* * * * *
(7) Cap requirements. A cap means, when referring to on-site
cleanup and disposal of PCB remediation waste, a uniform placement of
concrete, asphalt, or similar material of minimum thickness spread over
the area where remediation waste was removed or left in place in order
to prevent or minimize human exposure, infiltration of water, and
erosion. Any person designing and constructing a cap must do so in
accordance with Sec. 264.310(a) of this chapter, and ensure that it
complies with the permeability, sieve, liquid limit, and plasticity
index parameters in Sec. Sec. 761.75(b)(1)(ii) through (v). A cap of
compacted soil shall have a minimum thickness of 25 cm (10 inches). A
concrete or asphalt cap shall have a minimum thickness of 15 cm (6
inches). A cap must be of sufficient strength to maintain its
effe

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