Alternate PCB Extraction Methods and Amendments to PCB Cleanup and Disposal Regulations, 59662-59696 [2023-17708]

Download as PDF 59662 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 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 Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: 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 https://www.regulations.gov ddrumheller on DSK120RN23PROD with RULES2 SUMMARY: VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 https://www.epa.gov/ dockets. 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: mcleod.jennifer@ epa.gov. 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 § 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 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 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: • Utilities: Electric power and light companies, natural gas companies (NAICS code 22); • Manufacturers: Chemical manufacturers, electronics manufacturers, end-users of electricity, general contractors (NAICS codes 31– 33); • Transportation and Warehousing: Various modes of transportation including air, rail, water, ground, and pipeline (NAICS code 48–49); • Real Estate: People who rent, lease, or sell commercial property (NAICS code 53); • Professional, Scientific and Technical Services: Testing laboratories, environmental consulting (NAICS code 54); • Public Administration: Federal, State, and local agencies (NAICS code 92); • 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); • 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 E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 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 § 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)). ddrumheller on DSK120RN23PROD with RULES2 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 VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 (SolidPhase Extraction). The Agency is also incorporating by reference Methods 3541, 3545A, 3546, 3510C, 3520C, and 3535A into § 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 § 761.61(b) EPA is amending the performancebased disposal option for PCB remediation waste under § 761.61(b) to include provisions for performancebased 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 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 59663 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 § 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 § 761.66 to allow individuals to request a waiver from specific requirements of §§ 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 § 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 § 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 timelimited 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 E:\FR\FM\29AUR2.SGM 29AUR2 59664 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 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 nonflammability, 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 https:// www.epa.gov/pcbs/learn-aboutpolychlorinated-biphenyls-pcbs for more information. ddrumheller on DSK120RN23PROD with RULES2 PCB Exposures and Health Effects 1 2 3 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. 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. VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 https:// www.epa.gov/pcbs/policy-andguidance-polychlorinated-biphenylpcbs. 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 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 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. 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 4 https://www.epa.gov/hw-sw846. 5 https://www.epa.gov/cwa-methods. E:\FR\FM\29AUR2.SGM 29AUR2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations analysis. Medium/high concentration procedure—The sample is mixed with anhydrous sodium sulfate to form a freeflowing 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 VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 liquidliquid 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 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 59665 impurities or contaminants (Note 1). The test method is limited to petroleum products which are free from added ashforming 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 closedcup apparatus.2 The test methods are applicable to paints, enamels, lacquers, varnishes, and related products having a flash point between 0 and 110 °C (32 and 230 °F) and viscosity lower than 150 St at 25 °C (77 °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 °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 °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. E:\FR\FM\29AUR2.SGM 29AUR2 59666 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 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. ddrumheller on DSK120RN23PROD with RULES2 TABLE 1—TABLE OF EPA METHODS DISCUSSED IN THIS RULEMAKING Source Method ID SW–846 ......... Method 3510C 6 .............. SW–846 ......... Publication year Method type Method name 1996 Extraction ........................ Method 3520C 7 .............. 1996 Extraction ........................ SW–846 ......... Method 3535A 8 .............. 2007 Extraction. ....................... SW–846 ......... Method 3500B ................ 2007 Extraction ........................ SW–846 ......... SW–846 ......... Method 3540C ................ Method 3541 9 ................. 1996 1994 Extraction ........................ Extraction ........................ SW–846 ......... Method 3545A 10 ............. 2007 Extraction ........................ SW–846 ......... SW–846 ......... Method 3546 11 ............... Method 3550B ................ 2007 1996 Extraction ........................ Extraction ........................ Separatory Funnel Liquid-Liquid Extraction. Continuous Liquid-Liquid Extraction. Solid-Phase Extraction (SPE). Organic Extraction and Sample Preparation. Soxhlet Extraction ........... Automated Soxhlet Extraction. Pressurized Fluid Extraction. Microwave Extraction ...... Ultrasonic Extraction ....... SW–846 ......... Method 3550C ................ 2007 Extraction ........................ Ultrasonic Extraction ....... SW–846 ......... Method 8082 ................... 1996 Determinative .................. SW–846 ......... Method 8082A ................ 2007 Determinative .................. SW–846 ......... Method 8275A ................ 1996 Extraction and Determinative. CWA ............... Method 1668C ................ 2010 Extraction and Determinative. CWA ............... 608 .................................. 2006 CWA ............... 608.3 ............................... 2016 Extraction and Determinative. Extraction and Determinative. Polychlorinated Biphenyls (PCBs) by Gas Chromatography. Polychlorinated Biphenyls (PCBs) by Gas Chromatography. Semivolatile Organic Compounds (PAHs and PCBs) in Soils/ Sludges and Solid Wastes Using Thermal Extraction/Gas Chromatography/Mass Spectrometry (TE/GC/ MS). Chlorinated Biphenyl Congeners in Water, Soil, Sediment, Biosolids, and Tissue by HRGC/HRMS. Organochlorine Pesticides and PCBs. Organochlorine Pesticides and PCBs by GC/HSD. 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 LiquidLiquid Extraction. Office of Land and Emergency Management, Office of Resource Conservation and Recovery, Materials Recovery and Waste Management Division (5303P). Washington, DC December 1996. VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 Final change Added to Regulations. Added to Regulations. Added to Regulations. Removed from Regulations. Remains in Regulations. Added to Regulations. Added to Regulations. Added to Regulations. Updated to Method 3550C and Limited to Wipe Samples Only. Replaces Method 3550B and Limited to Wipe Samples Only. Removed from Regulations. Added to Regulations. Not Added to Regulations. Not Added to Regulations. Updated to CWA Method 608.3. Replaces CWA Method 608. 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. E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations III. Discussion of Public Comments and the Final Rule A. Revise Available Extraction Methods for PCBs ddrumheller on DSK120RN23PROD with RULES2 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 LiquidLiquid 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: • Subpart D—Storage and Disposal; • Subpart K—PCB Waste Disposal Records and Reports; • 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; • Subpart N—Cleanup Site Characterization Sampling for PCB Remediation Waste in Accordance with § 761.61(a)(2); • 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 § 761.61(a)(6); • Subpart P—Sampling Non-Porous Surfaces for Measurement-Based Use, Reuse, and On-Site or Off-Site Disposal Under § 761.61(a)(6) and Determination Under § 761.79(b)(3); • Subpart R—Sampling Non-Liquid, Non-Metal PCB Bulk Product Waste for Purposes of Characterization for PCB Disposal in Accordance With § 761.62, and Sampling PCB Remediation Waste Destined for Off-Site Disposal, in Accordance With § 761.61; and • Subpart T—Comparison Study for Validating a New Performance-Based Decontamination Solvent under § 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 §§ 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 VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 59667 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. 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. 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 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. 13 M.D. Luque de Castro, L.E. Garc(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. E:\FR\FM\29AUR2.SGM 29AUR2 59668 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 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 §§ 761.61(a)(5)(i)(B)(2)(iv), 761.253, 761.272, 761.292, 761.358, and 761.395. ddrumheller on DSK120RN23PROD with RULES2 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 VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 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. 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 § 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 § 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 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.’’ E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations formulation of PCBs present in the material being analyzed per § 761.1(b)(2) and may be acceptable under a §§ 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 §§ 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 §§ 761.60(g)(1)(iii), 761.61(a)(5)(i)(B)(2)(iv), 761.253, 761.272, 761.292, 761.358, and 761.395. ddrumheller on DSK120RN23PROD with RULES2 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 dichlorobiphenyls, 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. VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 § 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 § 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 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 § 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 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 59669 PCB regulations is restricted to samples of mineral oil dielectric fluid (MODEF) and waste oil (see §§ 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. Additionally, the methods previously referenced in § 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 § 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 § 761.61(b) Provisions in the Final Rule EPA proposed to amend § 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 § 761.61(b) to include explicit conditions for on-site remediation and cleanup of PCB remediation waste. The Agency is finalizing the provisions in § 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 § 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 § 761.61(b) performance-based cleanup. The regulations previously did not reference a specific cleanup level. The Liquids by Gas Chromatography,’’ which is available from ASTM.’’ E:\FR\FM\29AUR2.SGM 29AUR2 ddrumheller on DSK120RN23PROD with RULES2 59670 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations preamble to the proposed PCB Megarule (59 FR 62788, 62796; Dec. 6, 1994) explained that § 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 § 761.61(b). EPA is therefore establishing the following cleanup levels directly in § 761.61(b): ≤1 ppm for bulk PCB remediation waste and porous surfaces; the concentrations specified in § 761.79(b)(1) and (2) for liquids; and the concentrations specified in § 761.79(b)(3) for nonporous surfaces. See § 761.61(b)(1)(ii). Second, EPA is adding an applicability provision in § 761.61(b) to exclude the use of § 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 § 761.61(a)(4) and excluded those sites from the applicability of § 761.61(a). EPA also identified certain types of sites that, while subject to § 761.61(a), may call for more stringent cleanup levels. See § 761.61(a)(1) and (a)(4)(vi). The PCB Spill Cleanup Policy includes similar provisions. See § 761.120(a)(2) and (d)(2). Because performance-based cleanup under § 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 § 761.61(a)(1) and the characteristics in §§ 761.61(a)(4)(vi), 761.120(a)(2), and 761.120(d)(2) of sites that may require more stringent cleanup levels or sitespecific 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 § 761.61(a) and/or § 761.61(c), and to the impacts of climate change on the spread 17 Managing Remediation Waste From Polychlorinated Biphenyls (PCBs) Cleanups, https://www.epa.gov/pcbs/managing-remediationwaste-polychlorinated-biphenyls-pcbs-cleanups. VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 of PCB contamination through flooding. See § 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 § 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 § 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 § 761.61(b)(1)(iii). Fourth, EPA is incorporating explicit recordkeeping requirements into performance-based cleanup. Previously, responsible parties using § 761.61(b) were only subject to the applicable recordkeeping requirements in § 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 § 761.125(c)(5) in addition to the requirements in § 761.180(a). See § 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 § 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 § 761.61(b), based on the public comments summarized below, this final rule revises the notification period to 30 days. See § 761.61(b)(1)(v). Sixth, EPA is adding a RCRA Subtitle C landfill disposal option for non-liquid PCB remediation waste under § 761.61(b). RCRA Subtitle C landfills are already allowed to be used for the disposal of bulk PCB remediation waste under § 761.61(a)(5)(i)(B)(2)(iii) and for PCB bulk product waste under § 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 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 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 § 761.61(b)(2)(ii)(A). Finally, EPA is revising the language in § 761.125(a)(2) of the PCB Spill Cleanup Policy to ensure that the addition of RCRA Subtitle C landfills to § 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 § 761.125(a)(2). EPA notes that the above changes to § 761.61(b) will not impact a responsible party’s ability to pair performance-based disposal under § 761.61(b)(2) with onsite cleanup under § 761.61(a), § 761.61(c), or § 761.77 (e.g., stateauthorized cleanup under a coordinated approval). The regulatory text explicitly preserves the ability to use 18 63 E:\FR\FM\29AUR2.SGM FR 35384, 35410–35411; June 29, 1998. 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 § 761.61(b)(2) solely as a disposal provision. See introductory paragraph in § 761.61(b). For more information on the changes to § 761.61(b), see Section III.D. Revise Performance-Based Disposal Under § 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 § 761.61(b) performance-based cleanup, and EPA is finalizing this change as proposed. EPA proposed to limit applicability of § 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 § 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 § 761.61(b)(1)(i)(A)(7) unnecessarily limits the applicability of the § 761.61(b) performance-based cleanup option and that the § 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 § 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 § 761.61(b) applicability provisions, which largely mirror existing provisions in §§ 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 § 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 § 761.61(b)(1)(i)(A)(7) to clarify that the provision refers to a cleanup site, as defined in § 761.3. EPA proposed to add verification sampling requirements to § 761.61(b). Some commenters sought flexibility in verification sampling to account for sitespecific circumstances and for other reasons. While EPA recognizes the desire for flexibility, because § 761.61(b) VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 § 761.125(c)(5) of the PCB Spill Cleanup Policy to § 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 § 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 § 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 § 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 § 761.61(b). EPA proposed to allow for disposal of non-liquid PCB remediation waste in RCRA Subtitle C permitted landfills under § 761.61(b). Most of the commenters supported the addition of RCRA Subtitle C landfills to the list of allowable disposal options for nonliquid 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 § 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 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 59671 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., §§ 264.98(g)(1), 264.99(h)) and maintain records of groundwater monitoring data (§ 264.97(j)). In addition, the RCRA regulations contain requirements for a liner system (under § 264.301(a)(1)), leachate collection system (under § 264.301(a)(2)), recordkeeping (under § 264.73), and reporting (under §§ 264.75, 264.76, and 264.77). Subtitle C landfills must also be permitted under RCRA § 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 § 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 § 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 E:\FR\FM\29AUR2.SGM 29AUR2 59672 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 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 § 761.125(a)(2) of the PCB Spill Cleanup Policy to ensure that the addition of RCRA Subtitle C landfills to § 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 § 761.125(a)(2). Finally, EPA’s request for comments on requiring a § 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 § 761.61 under paragraphs (a), (b) and (c). Previously, § 761.61(b) prescribed disposal methods for liquid and nonliquid 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 § 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 § 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 VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 waste in a manner other than prescribed in paragraphs (a) or (b). The language of § 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 § 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 § 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 While EPA’s regulatory text and preamble statements refer to §§ 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 § 761.61(b) made it challenging to determine that on-site cleanup is complete and the site is authorized for use under § 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 § 761.61(b) each year.23 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 § 761.61(b), performance-based cleanup and disposal, lies with the responsible party. In addition, while the revisions to § 761.61(b) are designed to be fully selfimplementing, if the remediating party has questions as to whether a site qualifies to be cleaned up under 19 PCB Q&A Manual. June 2014. Pg. 91. https:// www.epa.gov/sites/production/files/2015-08/ documents/qacombined.pdf. 20 https://www.epa.gov/pcbs/managingremediation-waste-polychlorinated-biphenyls-pcbscleanups. 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 § 761.61(b). PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 § 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: www.epa.gov/pcbs/ program-contacts. 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 § 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 § 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 24 63 FR 35384, 35412; June 29, 1998. 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. https://www.sciencedirect.com/science/article/ pii/S0045653505001074. 25 Eero E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 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. F. Add Flexible Provisions for Emergency Situations ddrumheller on DSK120RN23PROD with RULES2 Provisions in the Final Rule EPA is adding new provisions for emergency situations under § 761.66 to allow individuals to request a waiver from specific requirements of §§ 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 §§ 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 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. https://www.sciencedirect.com/science/article/pii/ S0048969703003619. VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 § 761.120(c)(2)(i) and the definition of ‘‘spill’’ in § 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 § 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 § 761.120(c)(2)(ii). These flexibilities are being finalized largely as proposed. EPA expects that PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 59673 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 §§ 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 caseby-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 E:\FR\FM\29AUR2.SGM 29AUR2 ddrumheller on DSK120RN23PROD with RULES2 59674 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations provisions for emergency situations in § 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 24hour timeframe for notification under the PCB Spill Cleanup Policy for spills not related to emergency situations. See § 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 VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 environment. As emergency situations may be complex and often timesensitive, 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 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 27 59 PO 00000 FR 62788, 62793; Dec. 6, 1994. Frm 00014 Fmt 4701 Sfmt 4700 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. Postcleanup 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 § 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 asfound concentration for spills directly caused by the emergency situation. 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 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. E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 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 § 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 § 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 § 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 § 761.50(b)(3)(ii). EPA is thus finalizing this change as proposed. ddrumheller on DSK120RN23PROD with RULES2 Background on This Issue In the 1998 PCB Megarule, EPA promulgated both the definition of PCB remediation waste in § 761.3 and a guide to the cleanup and disposal obligations for PCB remediation waste in § 761.50(b)(3). At the time of the 1998 PCB Megarule, § 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 VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 § 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 § 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 § 761.50(b)(3) with the definition of PCB remediation waste and the general direction in § 761.50(b)(3) that PCB remediation waste ‘‘is regulated for cleanup and disposal in accordance with § 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 § 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 asfound PCB concentration is <50 ppm. Rather, EPA maintains that all materials that fit the definition of PCB remediation waste in § 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 § 761.61. The introductory language to § 761.50(b)(3) provides, without exception, that ‘‘PCB remediation waste [. . .] is regulated for cleanup and disposal in accordance with § 761.61.’’ EPA has published guidance affirming that PCB remediation waste, even if <50 ppm, is regulated under § 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 In EPA’s view, the function of § 761.50(b)(3)(ii) is to clarify that PCB remediation waste created by releases that occurred on or after the dates 37 PCB Q&A Manual. June 2014. Pg. 49 Q.3 https://www.epa.gov/sites/production/files/201508/documents/qacombined.pdf. 38 Nationwide Risk-based PCB Remediation Waste Disposal Approvals. https://www.epa.gov/ pcbs/nationwide-risk-based-pcb-remediation-wastedisposal-approvals. PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 59675 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 § 761.50(b)(3)(ii)(A); or in accordance with § 761.61, as provided in § 761.50(b)(3)(ii)(B) and the introductory text to § 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 § 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 § 761.50(b)(3)(i) is not eligible for management under the PCB Spill Cleanup Policy. Thus, as EPA interprets § 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 asfound PCB concentration is <50 ppm, is not eligible for management under the PCB Spill Cleanup Policy, but only under § 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 asfound concentrations of the materials contaminated by such spills. 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 NonPorous Surfaces Provisions in the Final Rule The definition of ‘‘non-porous surface’’ in § 761.3 includes several examples, including high-density 39 63 E:\FR\FM\29AUR2.SGM FR 35384, 35402; June 29, 1998. 29AUR2 59676 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations plastics. The Agency is modifying the definition of ‘‘non-porous surface’’ in § 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 nonporous 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 mediumand high-density polyethylene used in natural gas distribution piping meet the definition of a ‘‘non-porous surface’’ under § 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 mediumand 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 § 761.3. 2. Temporary Storage in Containers at the Site of Generation ddrumheller on DSK120RN23PROD with RULES2 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 § 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 40 Letter from Barnes Johnson to Pamela Lacey. Dec 14, 2018. https://www.epa.gov/pcbs/epasresponse-letter-aga-regarding-mdpe-and-hdpe-nonporous-surface. 41 JANA on behalf of NYSEARCH NGA. Oct 19, 2018. Assessment of Polychlorinated Biphenyls (PCBs) in Polyethylene (PE) Gas Distribution Piping. Revision 2. VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 boxes. Drums and roll-off boxes which meet the definition of a container under § 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 § 761.65(g), once for each of the financial instruments. See §§ 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 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 broadly and consistently applied across the program. EPA is finalizing this change as proposed. Background on This Issue The PCB regulations at § 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 § 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 § 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 § 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 eManifest system. EPA did not propose changes to remove the requirement to E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 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 ddrumheller on DSK120RN23PROD with RULES2 Provisions in the Final Rule The Agency is finalizing a requirement to use a standard form for the submission of annual reports under § 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. VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 § 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 § 761.207(a) to list the five categories from § 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 § 761.207(a) and § 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 § 761.180(a)(2). EPA is also removing references to instructions in the appendix of 40 CFR part 262 because these instructions were PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 59677 removed from the regulations and are instead available on EPA’s website.42 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 PCBContaminated 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 PCBContaminated 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 § 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 42 https://www.epa.gov/hwgenerators/uniformhazardous-waste-manifest-instructions-sampleform-and-continuation-sheet. E:\FR\FM\29AUR2.SGM 29AUR2 59678 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations e-Manifest without having to obtain waste characterization forms, which are not easily accessed. Background on This Issue Previously, § 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 § 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’’ ddrumheller on DSK120RN23PROD with RULES2 Provisions in the Final Rule The Agency is adding a definition of ‘‘as-found concentration’’ to § 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 asfound concentration must be measured from samples collected in-situ, unless otherwise specifically provided. Existing accumulations, as described in § 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 VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 § 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. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 Background on This Issue In the 1998 PCB Megarule, EPA allowed for a variance from the antidilution 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 asfound concentrations in EPA’s PCB Q&A Manual available on the EPA PCB website at https://www.epa.gov/pcbs/ polychlorinated-biphenyl-pcb-questionand-answer-manual-and-responsecomment-documents. ‘‘As-found concentration’’ is used in the PCB regulations particularly in reference to PCB remediation waste. See §§ 761.50(b) and 761.61. 9. Clarify § 761.61(a) Cleanups Must Comply With All Applicable Requirements Provisions in the Final Rule EPA is finalizing the changes to § 761.61(a)(3)(ii) as proposed. EPA is removing the phrase ‘‘assume that it is complete and acceptable’’ from § 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 § 761.61(a)(4) through (9). See § 761.61(a)(3)(ii). EPA is not making any other changes to § 761.61(a)(3)(ii). EPA is finalizing the changes to § 761.61(a)(3)(ii) to ensure the notification that responsible parties submit under § 761.61(a) complies with all requirements of § 761.61(a)(3)(i) and the subsequent cleanup and disposal complies with all applicable requirements in § 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 43 63 E:\FR\FM\29AUR2.SGM FR 35384, 35388; June 29, 1998. 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 § 761.61(a)(3)(i), sufficient to ensure compliance with § 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 § 761.61(a)(4) through (9). If the responsible party has reason to believe their implementation of § 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 www.epa.gov/pcbs/ program-contacts. In addition, PCB cleanup guidance (e.g., PCB Facility Approval Streamlining Toolbox) is available on the EPA PCB website at https://www.epa.gov/pcbs. 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 § 761.61(a)(4) through (9). Two commenters supported the proposed clarification that responsible parties must ensure that notifications submitted to EPA under § 761.61(a) and the subsequent cleanup and disposal of PCB remediation waste under § 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 § 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 § 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 § 761.61(a). In addition, the responsible party may contact EPA during the 30-day period to VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 § 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, § 761.61(a)(7) required that ‘‘a cap shall not be contaminated at a level ≥1 ppm PCB per AroclorTM (or equivalent) or per congener.’’ EPA is deleting ‘‘per AroclorTM (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 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 § 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 § 761.61(a)(7). 44 https://www.epa.gov/pcbs/tablepolychlorinated-biphenyl-pcb-congeners. 45 https://www.epa.gov/pcbs/table-aroclors. PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 59679 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 § 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 § 761.61(a)(8). EPA’s 2005 PCB Site Revitalization Guidance confirms that § 761.61(a)(8) requires a deed restriction for all cleanups requiring caps or fences, and all cleanups based on lowoccupancy 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 § 761.61(a)(8) to clarify that deed restrictions apply to any area with a cap, a fence, or a low occupancy designation. In addition, EPA is clarifying in § 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 § 761.61(a)(8).47 46 Polychlorinated Biphenyl (PCB) Site Revitalization Guidance Under the Toxic Substances Control Act (TSCA). November 2005. Page 13. https://www.epa.gov/sites/production/ files/2015-08/documents/pcb-guid3-06.pdf. 47 Institutional Controls: A Guide to Planning, Implementing, Maintaining, and Enforcing Institutional Controls at Contaminated Sites. December 2012. https://www.epa.gov/sites/ production/files/documents/final_pime_guidance_ december_2012.pdf. E:\FR\FM\29AUR2.SGM 29AUR2 59680 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations § 761.79(h) approval. EPA received no public comments on this provision. 12. Include Alternate Extraction and Analysis Under § 761.61(c)—PCB Remediation Waste The Agency is finalizing its proposal to clarify that, under a § 761.61(c) riskbased approval, a responsible party can be permitted to perform extraction or analysis of PCB remediation waste in a manner other than prescribed in § 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 § 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 § 761.61(c) risk-based approval. EPA received two public comments in support of this provision. 13. Include Alternate Extraction and Analysis Under § 761.62(c)—PCB Bulk Product Waste The Agency is finalizing its proposal to clarify that, under a § 761.62(c) riskbased approval, a responsible party can be permitted to perform extraction or analysis of PCB bulk product waste in a manner other than prescribed in § 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 § 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 § 761.62(c) riskbased approval. EPA received no public comments on this provision. ddrumheller on DSK120RN23PROD with RULES2 14. Include Alternate Extraction and Analysis Under § 761.79(h)— Decontaminated Material The Agency is clarifying that, under a § 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 § 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 § 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 VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 15. Clarify Sampling Procedure for NonPorous Surfaces The Agency is finalizing its proposal to correct an inconsistency with respect to non-porous surfaces in the site characterization requirements for selfimplementing cleanups of PCB remediation waste under § 761.61(a). The site characterization requirements in § 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 § 761.302(a).’’ See § 761.267(a). However, § 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 § 761.267 by adding the following italicized language to this provision, ‘‘Follow the procedures in § 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 § 761.1(b)(3) The Agency is finalizing its proposal to modify text in § 761.1(b)(3) to read ‘‘PCB concentrations of >10 mg/100 cm2.’’ Previously, § 761.1(b)(3) listed a concentration with only partial units of reference, ‘‘PCB concentrations of >10/ 100 cm2,’’ which was meaningless as written. It is clear from context that the text should have read ‘‘PCB concentrations of >10 mg/100 cm2,’’ which is how surface concentrations otherwise appear throughout the PCB regulations, including, for example in § 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 § 761.19 incorporate by reference several ASTM test method standards that have since PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 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 PenskyMartens Closed Tester, was approved by ASTM in 2009 and added to the PCB regulations in 2012 at §§ 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. 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 § 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. EPA is removing ASTM D2784–89, Standard Test Method for Sulfur in Liquified Petroleum Gases (Oxyhydrogen Burner or Lamp) from § 761.19 and § 761.71(a)(2)(vi). This test method was withdrawn in June 2016 because it is archaic and not used in the industry.50 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 §§ 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 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 § 761.71(a)(2)(vi). EPA is also replacing 48 77 FR 2463, Jan. 18, 2012. FR 13323, Apr. 16, 1992. 50 https://compass.astm.org/Standards/ WITHDRAWN/D2784.htm. 51 https://compass.astm.org/Standards/ WITHDRAWN/D3178.htm. 49 57 E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 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 § 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 § 761.19. EPA received one public comment in support of this provision. 18. Require a Wipe Sample Under § 761.30(i)(4) 19. High Efficiency Boilers Approval Application Requirements EPA is finalizing its proposal to correct an editorial error in § 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 § 761.71(a) and a section for burning any other PCBcontaminated fluids at § 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 § 761.71(b)(2)(iv) to correct an error by replacing the phrase ‘‘mineral oil dielectric fluid’’ with ‘‘PCB liquids.’’ See § 761.71(b)(2)(iv). EPA received one public comment in support of this provision. 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 § 761.30(i)(4). EPA received 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 § 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 § 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 §§ 761.3 and 761.180(b)(3). EPA received one public comment in support of this provision. 52 See ddrumheller on DSK120RN23PROD with RULES2 three public comments in support of this provision. PCB Q&A Manual. June 2014. Pg. 23 (‘‘Under the use authorization provisions at § 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. . . .’’). https:// www.epa.gov/sites/production/files/2015-08/ documents/qacombined.pdf. VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 59681 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 §§ 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 (ORCRPCBs@ epa.gov) 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 §§ 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 § 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 § 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 E:\FR\FM\29AUR2.SGM 29AUR2 59682 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 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, SolidPhase 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 §§ 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. 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 § 761.3 with the current official title and to refer to it as ‘‘SW–846’’ throughout the PCB regulations, for readability. See §§ 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. ddrumheller on DSK120RN23PROD with RULES2 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 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. VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 changed from https://www.epa.gov/pcb to https://www.epa.gov/pcbs. EPA is finalizing its proposal to update those references throughout the PCB regulations. See §§ 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 §§ 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 § 761.3, but the PCB regulations previously used the term ‘‘on-site’’ throughout. EPA is finalizing its proposal to modify § 761.3 to read ‘‘on-site’’ to improve the readability of the PCB regulations. See § 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 § 761.272.’’ While § 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 § 761.253, which is specific to wipe samples. EPA received one public comment in support of this provision. PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 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 §§ 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 §§ 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 https:// www.epa.gov/hw-sw846. 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 www.astm.org. 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. E:\FR\FM\29AUR2.SGM 29AUR2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations The revisions to § 761.61(b) may impact any facility performing a PCB site remediation under § 761.61(b). No data are available on the exact number of § 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 § 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 § 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 § 761.125(b), rather than § 761.125(c). The regulated community is also VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 https://www.epa.gov/lawsregulations/laws-and-executive-orders. 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 § 761.61(b)(1) performance-based cleanup, responsible parties using § 761.66 waivers in emergency PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 59683 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 § 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 E:\FR\FM\29AUR2.SGM 29AUR2 59684 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 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. ddrumheller on DSK120RN23PROD with RULES2 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 VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 § 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 § 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. PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 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 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 2. Amend § 761.1 by revising paragraph (b)(3) to read as follows: ■ § 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 mg/100 cm2. Provisions that apply to PCBs at concentrations of ≥50 to <500 ppm apply also to contaminated surfaces at PCB concentrations of >10 mg/100 cm2 to <100 mg/100 cm2. Provisions that apply to PCBs at concentrations of ≥500 ppm apply also to contaminated surfaces at PCB concentrations of ≥100 mg/100 cm2. * * * * * ■ 3. Amend § 761.3 by: ■ a. Revising definitions for ‘‘Administrator’’ and ‘‘Annual report’’; ■ b. Adding in alphabetical order the definition for ‘‘As-found concentration’’; ■ c. Revising the definition for ‘‘ASTM’’; ■ d. Adding in alphabetical order definitions for ‘‘CWA’’, ‘‘Director, Office E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations of Resource Conservation and Recovery’’, and ‘‘Emergency situation’’; ■ e. Revising definitions for ‘‘Nonporous surface’’ and ‘‘NTIS’’; ■ f. Removing the definition for ‘‘On site’’ and adding in its place the definition for ‘‘On-site’’; and ■ g. Revising definition for ‘‘SW–846’’. The revisions and additions read as follows: § 761.3 Definitions. ddrumheller on DSK120RN23PROD with RULES2 * * * * * 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 VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 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 https://www.epa.gov/ hw-sw846. * * * * * ■ 4. Section 761.19 is revised to read as follows: § 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 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 59685 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; www.epa.gov/dockets. For information on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ ibr-locations.html or email fr.inspection@nara.gov. 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 www.astm.org. (1) ASTM D93–09, Standard Test Methods for Flash Point by PenskyMartens Closed Tester, approved December 15, 2009; IBR approved for §§ 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 § 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 § 761.71. (4) ASTM D482–13, Standard Test Method for Ash from Petroleum Products, approved June 15, 2013; IBR approved for § 761.71. (5) ASTM D524–88, Standard Test Method for Ramsbottom Carbon Residue of Petroleum Products, approved 1988; IBR approved for § 761.71. (6) ASTM D808–87, Standard Test Method for Chlorine in New and Used Petroleum Products (Bomb Method), approved 1987; IBR approved for § 761.71. (7) ASTM D923–86, Standard Test Method for Sampling Electrical Insulating Liquids, Approved 1986, IBR approved for § 761.60. (8) ASTM D923–89, Standard Methods of Sampling Electrical Insulating Liquids, approved 1989; IBR approved for § 761.60. (9) ASTM D1266–87, Standard Test Method for Sulfur in Petroleum Products (Lamp Method), approved 1987; IBR approved for § 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 § 761.71. (11) ASTM D2158–89, Standard Test Method for Residues in Liquified Petroleum (LP) Gases, approved 1989; IBR approved for § 761.71. (12) ASTM D2709–88, Standard Test Method for Water and Sediment in E:\FR\FM\29AUR2.SGM 29AUR2 ddrumheller on DSK120RN23PROD with RULES2 59686 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations Distillate Fuels by Centrifuge, approved 1988; IBR approved for § 761.71. (13) ASTM D3278–96 (Reapproved 2011), Standard Test Methods for Flash Point of Liquids by Small Scale ClosedCup Apparatus, approved June 1, 2011; IBR approved for § 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 § 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 § 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 §§ 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 §§ 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 § 761.71. (b) EPA, Office of Resource Conservation and Recovery, 1200 Pennsylvania Ave. NW (5304T), Washington, DC 20460; www.epa.gov/ hw-sw846. (1) SW–846 Method 3510C, Separatory Funnel Liquid-Liquid Extraction, Revision 3, Approved December 1996; IBR approved for §§ 761.61, 761.272, and 761.292. (2) SW–846 Method 3520C, Continuous Liquid-Liquid Extraction, Revision 3, Approved December 1996; IBR approved for §§ 761.61, 761.272, and 761.292. (3) SW–846 Method 3535A, SolidPhase Extraction (SPE), Revision 1, Approved February 2007; IBR approved for §§ 761.61, 761.272, and 761.292. (4) SW–846 Method 3540C, Soxhlet Extraction, Revision 3, Approved December 1996; IBR approved for §§ 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 §§ 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 §§ 761.61, 761.253, 761.272, 761.292, 761.358, and 761.395. VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 (7) SW–846 Method 3546, Microwave Extraction, Approved February 2007; IBR approved for §§ 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 §§ 761.253, and 761.395. (9) SW–846 Method 8082A, Polychlorinated Biphenyls (PCBs) By Gas Chromatography, Revision 1, Approved February 2007; IBR approved for §§ 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 5. Amend § 761.20 by revising paragraphs (e)(3)(ii)(B), (e)(4)(i), and (ii) to read as follows: ■ § 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. * * * * * ■ 6. Amend § 761.30 by revising paragraph (i)(4) to read as follows: § 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 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 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 § 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 7. Amend § 761.50 by revising paragraphs (b)(3)(i)(A) and (b)(3)(ii) introductory text to read as follows: ■ § 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 § 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: * * * * * ■ 8. Amend § 761.60 by revising paragraphs (b)(2)(v)(C), (g)(1)(iii), and (g)(2)(ii) to read as follows: E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations § 761.60 Disposal requirements. ddrumheller on DSK120RN23PROD with RULES2 * * * * * (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 § 761.19); and ASTM D4059–00 (incorporated by reference, see § 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 § 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. * * * * * ■ 9. Amend § 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: § 761.61 PCB remediation waste. * * * * * (a) * * * (3) * * * (ii) Within 30 calendar days of receiving the notification, the EPA Regional Administrator will respond in VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 writing approving of the selfimplementing 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 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 59687 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 § 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 § 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 § 264.310(a) of this chapter, and ensure that it complies with the permeability, sieve, liquid limit, and plasticity index parameters in §§ 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 effectiveness and integrity during the use of the cap surface which is exposed to the environment. A cap shall not be contaminated at a level ≥1 ppm PCB. Repairs shall begin within 72 hours of discovery for any breaches which would impair the integrity of the cap. (8) Deed restrictions for caps, fences and low occupancy areas. When a cleanup activity conducted under this section includes the use of a fence or a cap, the owner of the site must maintain the fence or cap, in perpetuity. In addition, whenever a fence, a cap, or the procedures and requirements for a low occupancy area, is used, the owner of the site must meet the following conditions: (i) * * * (A) Record, in accordance with State law, a notation on the deed to the property, or on some other instrument which is normally examined during a title search, that will in perpetuity notify any potential purchaser of the property: (1) That the land, or the specific portion thereof identified in the instrument when only a portion is subject to the instrument, has been used E:\FR\FM\29AUR2.SGM 29AUR2 ddrumheller on DSK120RN23PROD with RULES2 59688 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations for PCB remediation waste disposal and, when applicable, that the area is restricted to use as a low occupancy area as defined in § 761.3; (2) Of the existence of the fence or cap and the requirement to maintain the fence or cap, when applicable; and (3) The applicable cleanup levels left at the site, including inside any fence, under any cap, and/or in a low occupancy area. (B) Submit a certification, signed by the owner, that they have recorded the notation specified in paragraph (a)(8)(i)(A) of this section to the EPA Regional Administrator. (ii) The owner of a site being cleaned up under this section may remove a fence, cap, or low occupancy designation after conducting additional cleanup activities and achieving cleanup levels, specified in paragraph (a)(4) of this section, which do not require a fence, cap, or low occupancy designation. The owner may remove the notice on the deed no earlier than 30 days after achieving the cleanup levels specified in this section which do not require a fence, cap, or low occupancy designation. * * * * * (b) Performance-based cleanup and disposal. Any person may clean up and dispose of PCB remediation waste at a site in full compliance with the performance-based cleanup provisions of paragraph (b)(1) of this section and disposal provisions of paragraph (b)(2) of this section. Alternatively, any person may dispose of PCB remediation waste in accordance with paragraph (b)(2) of this section, but such disposal does not relieve them of cleanup and disposal obligations for any PCBs that remain on-site if the provisions of paragraph (b)(1) of this section are not complied with. (1) Performance-based cleanup of PCB remediation waste—(i) Applicability. (A) The performance-based cleanup option may not be used to clean up: (1) Surface or ground waters. (2) Sediments in marine and freshwater ecosystems. (3) Sewers or sewage treatment systems. (4) Any private or public drinking water sources or distribution systems. (5) Grazing or agricultural lands. (6) Vegetable gardens. (7) Sites where the cleanup site, as defined in § 761.3, is adjacent to, contains, or is proposed to be redeveloped to contain: residential dwellings, hospitals, schools, nursing homes, playgrounds, parks, day care centers, endangered species habitats, estuaries, wetlands, national parks, VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 national wildlife refuges, commercial fisheries, sport fisheries, or surface waters. (8) Sites where the PCB contamination is in the 100-year floodplain. (B) The performance-based cleanup provisions shall not be binding upon cleanups conducted under other authorities, including but not limited to, actions conducted under section 104 or section 106 of CERCLA, or section 3004(u) and (v) or section 3008(h) of RCRA. (ii) Cleanup level. All on-site PCB remediation waste above the following cleanup levels must be disposed of or decontaminated in accordance with paragraph (2). (A) The cleanup level for bulk PCB remediation waste and porous surfaces is ≤1 ppm PCBs. (B) The cleanup levels for liquids are the concentrations specified in §§ 761.79(b)(1) and (b)(2). (C) The cleanup levels for non-porous surfaces are the concentrations specified in § 761.79(b)(3). (iii) Verification sampling. Verification sampling for bulk PCB remediation waste and porous surfaces must be conducted in accordance with Subpart O. Verification sampling for non-porous surfaces must be conducted in accordance with Subpart P. Verification sampling for liquid PCB remediation waste must be conducted in accordance with § 761.269. When analysis of each sample results in a measurement of PCBs less than or equal to the levels specified in paragraph (ii) of this section, on-site performancebased cleanup is complete. (iv) Recordkeeping. Recordkeeping is required in accordance with § 761.125(c)(5). (v) Cleanup Completion Notification. Within 30 days of sending the final shipment of waste offsite for disposal from a site cleaned up under this paragraph, the person in charge of the cleanup or the owner of the property where the PCB remediation waste was located shall notify, in writing, the EPA Regional Administrator, the Director of the State or Tribal environmental protection agency, and the Director of the county or local environmental protection agency where the cleanup was conducted. EPA may require additional on-site cleanup upon finding that the cleanup level(s) in (b)(1)(ii) of this section have not been met. Upon review of the cleanup completion notification, EPA may request that the responsible party submit additional information related to the records required under (b)(1)(iv) of this section to clarify that the cleanup has been PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 completed in accordance with the requirements of this section. The notification shall include: (A) Site identification information, including the site address and the name, phone number, and email address of the site contact; (B) Disposal facility and shipment information, including the disposal facility’s name and address, the manifest tracking number(s), and the quantity of waste shipped; (C) A summary of all applicable components of the records in § 761.125(c)(5); and (D) A certification using the language in § 761.3. (2) Performance-based disposal. (i) Any person disposing of liquid PCB remediation waste under this subsection shall do so according to §§ 761.60(a) or (e) or decontaminate it in accordance with § 761.79. (ii) Any person disposing of nonliquid PCB remediation waste under this subsection shall do so by one of the following methods: (A) Dispose of it in a high temperature incinerator approved under § 761.70(b), an alternate disposal method approved under § 761.60(e), a chemical waste landfill approved under § 761.75, a facility with a coordinated approval issued under § 761.77, or a hazardous waste landfill permitted by EPA under section 3005 of RCRA, or by a State or territory authorized under section 3006 of RCRA. (B) Decontaminate it in accordance with § 761.79. (iii) Any person may manage or dispose of material containing <50 ppm PCBs that has been dredged or excavated from waters of the United States: (A) In accordance with a permit that has been issued under section 404 of the Clean Water Act, or the equivalent of such a permit as provided for in regulations of the U.S. Army Corps of Engineers at 33 CFR part 320. (B) In accordance with a permit issued by the U.S. Army Corps of Engineers under section 103 of the Marine Protection, Research, and Sanctuaries Act, or the equivalent of such a permit as provided for in regulations of the U.S. Army Corps of Engineers at 33 CFR part 320. (c) Risk-based cleanup and disposal approval. (1) Any person wishing to sample, extract, analyze, cleanup, or dispose of PCB remediation waste in a manner other than prescribed in paragraphs (a) or (b) of this section, or store PCB remediation waste in a manner other than prescribed in § 761.65, must apply in writing to the Regional Administrator in the Region E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations where the sampling, extraction, analysis, cleanup, disposal, or storage site is located, for sampling, extraction, analysis, cleanup, disposal, or storage occurring in a single EPA Region; or to the Director, Office of Resource Conservation and Recovery, for sampling, extraction, analysis, cleanup, disposal, or storage occurring in more than one EPA Region. Each application must include information described in the notification required by paragraph (a)(3) of this section. EPA may request other information that it believes necessary to evaluate the application. No person may conduct cleanup activities under this paragraph prior to obtaining written approval by EPA. * * * * * 10. Amend § 761.62 by revising paragraphs (c)(1) and (d) to read as follows: ■ § 761.62 waste. Disposal of PCB bulk product ddrumheller on DSK120RN23PROD with RULES2 * * * * * (c) * * * (1) Any person wishing to sample, extract, analyze, or dispose of PCB bulk product waste in a manner other than prescribed in paragraphs (a) or (b) of this section, or store PCB bulk product waste in a manner other than prescribed in § 761.65, must apply in writing to the Regional Administrator in the Region where the sampling, extraction, analysis, disposal, or storage site is located, for sampling, extraction, analysis, disposal, or storage occurring in a single EPA Region; or to the Director, Office of Resource Conservation and Recovery, for sampling, extraction, analysis, disposal, or storage occurring in more than one EPA Region. Each application must contain information indicating that, based on technical, environmental, or waste-specific characteristics or considerations, the proposed sampling, extraction, analysis, disposal, or storage methods or locations will not pose an unreasonable risk of injury to health or the environment. EPA may request other information that it believes necessary to evaluate the application. No person may conduct sampling, extraction, analysis, disposal, or storage activities under this paragraph prior to obtaining written approval by EPA. * * * * * (d) Disposal as daily landfill cover. Bulk product waste described in paragraph (b)(1) of this section may be disposed of as daily landfill cover, as long as the daily cover remains in the landfill and is not released or dispersed by wind or other action. VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 11. Amend § 761.65 by revising paragraphs (c)(9)(i) and (iii), (g) introductory text, (g)(1) introductory text, (g)(1)(iv), (g)(2), (g)(3)(i), (g)(4)(i), (g)(5), (6), (7) and (h) to read as follows: ■ § 761.65 Storage for disposal. * * * * * (c) * * * (9) * * * (i) The waste is placed in a pile or non-leaking, covered container designed and operated to control dispersal of the waste by wind, where necessary, by means other than wetting. * * * * * (iii) The storage site must have: (A) A liner or container that is designed, constructed, and installed to prevent any migration of wastes off or through the liner or container into the adjacent subsurface soil, ground water or surface water at any time during the active life (including the closure period) of the storage site. The liner or container may be constructed of materials that may allow waste to migrate into the liner or container. The liner or container must be: (1) Constructed of materials that have appropriate chemical properties and sufficient strength and thickness to prevent failure due to pressure gradients (including static head and external hydrogeologic forces), physical contact with the waste or leachate to which they are exposed, climatic conditions, the stress of installation, and the stress of daily operation. (2) Placed upon a foundation or base capable of providing support to the liner or container and resistance to pressure gradients above and below the liner or container to prevent failure of the liner or container due to settlement, compression, or uplift. (3) In the case of liners, installed to cover all surrounding earth likely to be in contact with the waste. (B) A cover that meets the requirements of paragraph (c)(9)(iii)(A) of this section, is installed to cover all of the stored waste likely to be in contact with precipitation, and is secured so as not to be functionally disabled by winds expected under normal seasonal meteorological conditions at the storage site. * * * * * (g) Financial assurance for closure. A commercial storer of PCB waste shall establish financial assurance for closure of each PCB storage facility that they own or operate. In establishing financial assurance for closure, the commercial storer of PCB waste may choose from the following financial assurance mechanisms or any combination of mechanisms: PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 59689 (1) The ‘‘closure trust fund,’’ as specified in § 264.143(a) of this chapter, except for paragraph (a)(3) of § 264.143 and except when the Regional Administrator specifies modifications for the purposes of implementation under TSCA. For purposes of this paragraph, the following provisions also apply: * * * * * (iv) The submission of a trust agreement with the wording specified in § 264.151(a)(1) of this chapter, including any reference to hazardous waste management facilities, shall be deemed to be in compliance with the requirement to submit a trust agreement under this subpart except when the Regional Administrator specifies modifications for the purposes of implementation under TSCA. (2) The ‘‘surety bond guaranteeing payment into a closure trust fund,’’ as specified in § 264.143(b) of this chapter, including the use of the surety bond instrument specified at § 264.151(b) of this chapter and the standby trust specified at § 264.143(b)(3) of this chapter except when the Regional Administrator specifies modifications for the purposes of implementation under TSCA. The use of the surety bonds, surety bond instruments, and standby trust agreements specified in §§ 264.143(b) and 264.151(b) of this chapter, with any modifications specified by the Regional Administrator, shall be deemed to be in compliance with this subpart. (3)(i) The ‘‘surety bond guaranteeing performance of closure,’’ as specified at § 264.143(c) of this chapter, except for § 264.143(c)(5) of this chapter and except when the Regional Administrator specifies modifications for the purposes of implementation under TSCA. The submission and use of the surety bond instrument specified at § 264.151(c) of this chapter and the standby trust specified at § 264.143(c)(3) of this chapter, with any modifications specified by the Regional Administrator, shall be deemed to be in compliance with the requirements under this subpart relating to the use of surety bonds and standby trust funds. * * * * * (4)(i) The ‘‘closure letter of credit’’ specified in § 264.143(d) of this chapter, except for paragraph (d)(8) and except when the Regional Administrator specifies modifications for the purposes of implementation under TSCA. The submission and use of the irrevocable letter of credit instrument specified in § 264.151(d) of this chapter and the standby trust specified in § 264.143(d)(3) of this chapter, with any E:\FR\FM\29AUR2.SGM 29AUR2 ddrumheller on DSK120RN23PROD with RULES2 59690 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations modifications specified by the Regional Administrator, shall be deemed to be in compliance with the requirements of this subpart relating to the use of letters of credit and standby trust funds. * * * * * (5) ‘‘Closure insurance,’’ as specified in § 264.143(e) of this chapter, utilizing the certificate of insurance for closure specified at § 264.151(e) of this chapter except when the Regional Administrator specifies modifications for the purposes of implementation under TSCA. The use of closure insurance as specified in § 264.143(e) of this chapter and the submission and use of the certificate of insurance specified in § 264.151(e) of this chapter, with any modifications specified by the Regional Administrator, shall be deemed to be in compliance with the requirements of this subpart relating to the use of closure insurance. (6) The ‘‘financial test and corporate guarantee for closure,’’ as described in § 264.143(f) of this chapter except when the Regional Administrator specifies modifications for the purposes of implementation under TSCA, including a letter signed by the owner’s or operator’s chief financial officer as specified at § 264.151(f) of this chapter and, if applicable, the written corporate guarantee specified at § 264.151(h) of this chapter. The use of the financial test and corporate guarantee specified in § 264.143(f) of this chapter, the submission and use of the letter specified in § 264.151(f) of this chapter, and the submission and use of the written corporate guarantee specified at § 264.151(h) of this chapter, with any modifications specified by the Regional Administrator, shall be deemed to be in compliance with the requirements of this subpart relating to the use of financial tests and corporate guarantees. (7) The corporate guarantee as specified in § 264.143(f)(10) of this chapter except when the Regional Administrator specifies modifications for the purposes of implementation under TSCA. * * * * * (h) Release of owner or operator. Within 60 days after receiving certifications from the owner or operator and an independent registered professional engineer that final closure has been completed in accordance with the approved closure plan, EPA will notify the owner or operator in writing that the owner or operator is no longer required by this section to maintain financial assurance for final closure of the facility, unless EPA has reason to believe that final closure has not been completed in accordance with the approved closure plan. EPA shall VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 provide the owner or operator with a detailed written statement stating the reasons why EPA believed closure was not conducted in accordance with the approved closure plan. * * * * * ■ 12. Add § 761.66 to subpart D to read as follows: § 761.66 Emergency situations. This section establishes procedures that may be used for purposes of the cleanup and/or disposal of PCB releases caused by an emergency situation as defined in § 761.3. This section allows the request of a waiver of any of the requirements in §§ 761.60, 761.61, 761.62, or 761.65. Any person conducting activities under these emergency provisions is also responsible for determining and complying with all other applicable Federal, State, and local laws and regulations. This section 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. (a) Applicability. This section may only be applied to the cleanup and/or disposal of PCB releases caused by an emergency situation as defined in § 761.3. (b) Waiver Request. Any person intending or planning to sample, extract, analyze, clean up, store, and/or dispose of PCBs under this section shall submit a waiver request to the Regional Administrator in the EPA Region where the sampling, extraction, analysis, cleanup, storage, and/or disposal would occur, in writing and/or by email no later than seven (7) days after discovery of the release or implementation of any temporary emergency measures, as applicable. The requestor must also send a copy of the waiver request to the Director of the State or Tribal environmental agency where the sampling, extraction, analysis, cleanup, storage, and/or disposal would occur. If the sampling, extraction, analysis, cleanup, storage, and/or disposal activities in the waiver request would be conducted in more than one Region, then the waiver request must be submitted, in its entirety, to the Regional Administrators for all affected Regions. (1) This request shall include: (i) The contact information for the person requesting the waiver. (ii) Location(s) of the release(s). (iii) A description of the emergency situation, including information about adverse conditions and the incident(s) that caused them. PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 (iv) The type(s) of material(s) that are contaminated and the source of the release, if known. (v) The as-found PCB concentrations in the PCB waste, unless the materials are being managed as if they contain ≥500 ppm PCBs. If actual PCB concentrations have not yet been determined, then estimated concentrations may be provided in the request. Actual PCB concentrations shall be determined before disposal activities commence, unless the waste is being managed as if it contains ≥500 ppm PCBs. (vi) The provisions of §§ 761.60, 761.61, 761.62, or 761.65 that the person requests to waive or modify (or to use alternative procedures for) and an explanation of why compliance with the existing provisions would be impracticable as a result of the emergency situation. (vii) The plan for how sampling, extraction, analysis, storage, cleanup, and/or disposal of the PCB waste would be conducted if the waiver were granted. The plan shall provide information to support how the actions described in the plan do not pose an unreasonable risk of injury to health or the environment. This plan shall be based on the as-found PCB concentrations in the materials unless waste is being managed as if it contains PCBs ≥500 ppm. (viii) Whether or not the PCB waste is near, or likely to impact, surface waters, ground waters, drinking water sources or distribution systems, wells, sediments, sewers or sewage treatment systems, grazing lands, vegetable gardens, residential dwellings, hospitals, schools, nursing homes, playgrounds, parks, day care centers, endangered species habitats, estuaries, wetlands, national parks, national wildlife refuges, commercial fisheries, or sport fisheries and how those areas and potential impacts will be addressed. (2) To make changes to submitted information described in paragraph (b)(1) of this section, the requestor shall submit the new information to the EPA Regional Administrator(s) in writing and/or by email. Changes must also be sent to the Director of the State or Tribal environmental agency or agencies where the request is applicable. (c) Approval of waiver requests. The EPA Regional Administrator may approve the waiver request, request additional information, approve the waiver request with specified changes or additional conditions, or deny the waiver request, in writing, by telephone, or by email. An approval, with or without changes or conditions, shall be based on the Regional Administrator’s E:\FR\FM\29AUR2.SGM 29AUR2 ddrumheller on DSK120RN23PROD with RULES2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations finding that compliance with the regulatory requirements from which a waiver is sought is impracticable and that the action approved under the waiver will not pose an unreasonable risk of injury to health or the environment. At any point, EPA may impose additional sampling, extraction, analysis, cleanup, storage, and/or disposal requirements, or require the requestor to delay acting on their proposed plan, in order to ensure the actions will not pose an unreasonable risk of injury to health or the environment. (d) Steps after approval of waiver request. Sampling, extraction, analysis, cleanup, storage, and disposal activities as described in the waiver request may begin after the EPA Regional Administrator responds with approval of the waiver request. All sampling, extraction, analysis, cleanup, storage, and disposal activities shall be conducted in compliance with the terms of the approval and all applicable provisions of §§ 761.60, 761.61, 761.62, and 761.65 not expressly waived by the approval. (e) As-found concentration. Sampling, extraction, analysis, cleanup, storage, and disposal activities conducted under this section shall be based on the asfound concentration of the PCB waste unless the materials are being managed as if they contain ≥500 ppm PCBs. (f) Records, manifests, and certification. Recordkeeping and certification are required in accordance with § 761.125(c)(5). The manifesting and reporting requirements in Subpart K apply to waste disposed of under this section. However, if the person requesting a waiver has not previously submitted a notification of PCB activity as described in § 761.205 and the requirements of § 761.205 specify that such notification is required for the cleanup, storage, and/or disposal activity, the requestor shall submit the notification within ten (10) business days of their waiver request. The requestor does not have to wait to obtain their EPA identification number before initiating cleanup and/or disposal activities described in their approved waiver request. While waiting for their identification number, the requestor may use the generic identification ‘‘40 CFR PART 761’’ in lieu of an EPA identification number on manifests for PCB waste. The requestor may alternatively use an EPA identification number they previously obtained from EPA under RCRA or a State or territory under an authorized RCRA program, if they have one. Once the requestor receives an EPA identification number, VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 they shall use it on manifests for PCB waste. ■ 13. Amend § 761.70 by revising paragraph (d)(4)(i) to read as follows: § 761.70 Incineration. * * * * * (d) * * * (4) * * * (i) Except as provided in paragraph (d)(5) of this section, the Regional Administrator or the appropriate official at EPA Headquarters may not approve an incinerator for the disposal of PCBs and PCB Items unless they find that the incinerator meets all of the requirements of paragraphs (a) and/or (b) of this section. * * * * * ■ 14. Amend § 761.71 by revising paragraphs (b)(2)(iv) and (vi) to read as follows: § 761.71 High efficiency boilers. * * * * * (b) * * * (2) * * * (iv) The type of equipment, apparatus, and procedures to be used to control the feed of PCB liquids to the boiler and to monitor and record the carbon monoxide concentration and excess oxygen percentage in the stack. * * * * * (vi) The concentration of PCBs and of any other chlorinated hydrocarbon in the waste and the results of analyses using ASTM methods as follows: Carbon and hydrogen content using ASTM D5373–16, nitrogen content using ASTM E258–67 (Reapproved 1987) or ASTM D5373–16, sulfur content using ASTM D1266–87, or ASTM D129–64 (Reapproved 1968), chlorine content using ASTM D808–87, water and sediment content using either ASTM D2709–88 or ASTM D1796–83 (Reapproved 1990), ash content using ASTM D482–13, calorific value using ASTM D240–87, carbon residue using either ASTM D2158–89 or ASTM D524– 88, and flash point using ASTM D93– 09, ASTM D8174–18, or ASTM D8175– 18 (all standards incorporated by reference, see § 761.19). * * * * * ■ 15. Amend § 761.75 by revising paragraphs (b)(8)(iii) and (c)(3)(i) and (c)(4) to read as follows: § 761.75 Chemical waste landfills. * * * * * (b) * * * (8) * * * (iii) Ignitable wastes shall not be disposed of in chemical waste landfills. Liquid ignitable wastes are wastes that have a flash point less than 60 degrees PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 59691 C (140 degrees F) as determined by the following method or an equivalent method: Flash point of liquids shall be determined by a Pensky-Martens Closed Cup Tester, using the protocol specified in ASTM D93–09 or ASTM D8175–18, a Small Scale Closed Cup Tester, using the protocol specified in ASTM D3278– 96 (Reapproved 2011) or ASTM D8174– 18, or the Setaflash Closed Tester using the protocol specified in ASTM D3278– 96 (Reapproved 2011) (all standards incorporated by reference, see § 761.19). * * * * * (c) * * * (3) * * * (i) Except as provided in paragraph (c)(4) of this section, the Regional Administrator may not approve a chemical waste landfill for the disposal of PCBs and PCB Items, unless they find that the landfill meets all of the requirements of paragraph (b) of this section. * * * * * (4) Waivers. An owner or operator of a chemical waste landfill may submit evidence to the Regional Administrator that operation of the landfill will not present an unreasonable risk of injury to health or the environment from PCBs when one or more of the requirements of paragraph (b) of this section are not met. On the basis of such evidence and any other available information, the Regional Administrator may in their discretion find that one or more of the requirements of paragraph (b) of this section is not necessary to protect against such a risk and may waive the requirements in any approval for that landfill. Any finding and waiver under this paragraph will be stated in writing and included as part of the approval. * * * * * ■ 16. Amend § 761.77 by revising paragraphs (a)(1)(ii)(B), (a)(2), and (b) introductory text to read as follows: § 761.77 Coordinated approval. (a) * * * (1) * * * (ii) * * * (B) Issue a letter granting or denying the TSCA PCB Coordinated Approval. If the EPA Regional Administrator grants the TSCA PCB Coordinated Approval, they may acknowledge the non-TSCA approval meets the regulatory requirements under TSCA as written, or require additional conditions the EPA Regional Administrator has determined are necessary to prevent unreasonable risk of injury to health or the environment. * * * * * (2) The EPA Regional Administrator may issue a notice of deficiency, revoke E:\FR\FM\29AUR2.SGM 29AUR2 59692 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations the TSCA PCB Coordinated Approval, require the person to whom the TSCA PCB Coordinated Approval was issued to submit an application for a TSCA PCB approval, or bring an enforcement action under TSCA if they determine that: * * * * * (b) Any person who owns or operates a facility that they intend to use to landfill PCB wastes; incinerate PCB wastes; dispose of PCB wastes using an alternative disposal method that is equivalent to disposal in an incinerator approved under § 761.70 or a high efficiency boiler operating in compliance with § 761.71; or store PCB wastes may apply for a TSCA PCB Coordinated Approval. The EPA Regional Administrator may approve the request if the EPA Regional Administrator determines that the activity will not pose an unreasonable risk of injury to health or the environment and the person: * * * * * ■ 17. Amend § 761.79 by revising paragraph (h)(3) to read as follows: § 761.79 Decontamination standards and procedures. * * * * (h) * * * (3) Any person wishing to sample, extract, or analyze decontaminated material in a manner other than prescribed in paragraph (f) of this section must apply in writing to the Regional Administrator in the Region where the activity would take place, for decontamination activity occurring in a single EPA Region; or to the Director, Office of Resource Conservation and Recovery, for decontamination activity occurring in more than one EPA Region. Each application must contain a description of the material to be decontaminated, the nature and PCB concentration of the contaminating material (if known), the decontamination method, the proposed extraction, analysis, and/or sampling procedure, and a justification for how the proposed extraction, analysis, and/ or sampling procedure is equivalent to or more comprehensive than the extraction, analysis, and/or sampling procedure required under paragraph (f) of this section. * * * * * ddrumheller on DSK120RN23PROD with RULES2 * Subpart G—PCB Spill Cleanup Policy 18. Amend § 761.120 by revising paragraphs (b)(2) and (c) to read as follows: ■ § 761.120 * * Scope. * VerDate Sep<11>2014 * * 19:00 Aug 28, 2023 Jkt 259001 (b) * * * (2) In those situations, the Regional Administrator may require cleanup in addition to that required under § 761.125(b) and (c). However, the Regional Administrator must first make a finding, based on the specific facts of a spill, that additional cleanup is necessary to prevent unreasonable risk. In addition, before making a final decision on additional cleanup, the Regional Administrator must notify the Director, Office of Resource Conservation and Recovery of their finding and the basis for the finding. (c) Flexibility to allow less stringent or alternative requirements. (1) EPA retains the flexibility to allow less stringent or alternative decontamination measures based upon site-specific considerations. EPA will exercise this flexibility if the responsible party demonstrates that cleanup to the numerical decontamination levels is clearly unwarranted because of risk-mitigating factors, that compliance with the procedural requirements or numerical standards in the policy is impracticable at a particular site, or that site-specific characteristics make the costs of cleanup prohibitive. The Regional Administrator will notify the Director, Office of Resource Conservation and Recovery of any decision and the basis for the decision to allow less stringent cleanup. The purpose of this notification is to enable the Director, Office of Resource Conservation and Recovery to ensure consistency of spill cleanup standards under special circumstances across the regions. (2) In emergency situations, as defined in § 761.123, the following provisions of this Policy are hereby modified as follows: (i) For actions taken directly in response to spills caused by emergency situations, responsible parties may use the as-found concentrations in the spill materials when determining whether to manage the spill under §§ 761.125(b) or (c) of this Policy when it is not possible to readily determine the spill source concentration at a site. (ii) For spills caused by emergency situations, the applicable notifications in § 761.125(a)(1) must be submitted as soon as possible, but no later than 48 hours after the adverse conditions that prevented communication have ended. * * * * * ■ 19. Amend § 761.123, by: ■ a. Adding the definition in alphabetical order for ‘‘Emergency situation’’; and ■ b. Revising the definitions for ‘‘Other restricted access (nonsubstation) locations’’ and ‘‘Spill’’. PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 The addition and revisions read as follows: § 761.123 Definitions. * * * * * 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. * * * * * Other restricted access (nonsubstation) locations means areas other than electrical substations that are at least 0.1 kilometer (km) from a residential/commercial area and limited by man-made barriers (e.g., fences and walls) or substantially limited by naturally occurring barriers such as mountains, cliffs, or rough terrain. These areas generally include industrial facilities and extremely remote rural locations. (Areas where access is restricted but are less than 0.1 km from a residential/commercial area are considered to be residential/commercial areas.) * * * * * Spill means both intentional and unintentional spills, leaks, and other uncontrolled discharges where the release results in any quantity of PCBs running off or about to run off the external surface of the equipment or other PCB source, as well as the contamination resulting from those releases. This policy applies to spills of 50 ppm or greater PCBs. The concentration of PCBs spilled is determined by the PCB concentration in the material spilled as opposed to the concentration of PCBs in the material onto which the PCBs were spilled, except where authorized in § 761.120(c). Where a spill of untested mineral oil occurs, the oil is presumed to contain greater than or equal to 50 ppm, but less than 500 ppm PCBs and is subject to the relevant requirements of this policy. * * * * * 20. Amend § 761.125 by revising paragraphs (a)(2), (c)(3)(iii), and (c)(4)(iv) to read as follows: ■ E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations § 761.125 cleanup. Requirements for PCB spill (a) * * * (2) Disposal of cleanup debris and materials. All concentrated soils, solvents, rags, and other materials resulting from the cleanup of PCBs under this policy shall be properly stored, labeled, and disposed of in accordance with the provisions of Subpart D of this part, except that such materials shall not be disposed of in a hazardous waste landfill permitted by EPA under section 3005 of RCRA or by a State or territory authorized under section 3006 of RCRA pursuant to § 761.61(b)(2)(ii)(A). * * * * * (c) * * * (3) * * * (iii) At the option of the responsible party, low-contact, indoor, nonimpervious surfaces will be cleaned either to 10 mg/100 cm2 or to 100 mg/100 cm2 and encapsulated. The Regional Administrator, however, retains the authority to disallow the encapsulation option for a particular spill situation upon finding that the uncertainties associated with that option pose special concerns at that site. That is, the Regional Administrator would not permit encapsulation if they determine that if the encapsulation failed the failure would create an imminent hazard at the site. * * * * * (4) * * * (iv) At the option of the responsible party, low-contact, outdoor, nonimpervious solid surfaces shall be either cleaned to 10 mg/100 cm2 or cleaned to 100 mg/100 cm2 and encapsulated. The Regional Administrator, however, retains the authority to disallow the encapsulation option for a particular spill situation upon finding that the uncertainties associated with that option pose special concerns at that site. That is, the Regional Administrator would not permit encapsulation if they determine that if the encapsulation failed the failure would create an imminent hazard at the site. * * * * * ■ 21. Amend § 761.130 by revising paragraph (e) to read as follows: ddrumheller on DSK120RN23PROD with RULES2 § 761.130 Sampling requirements. * * * * * (e) EPA recommends the use of a sampling scheme developed by the Midwest Research Institute (MRI) for use in enforcement inspections: ‘‘Verification of PCB Spill Cleanup by Sampling and Analysis.’’ Guidance for the use of this sampling scheme is VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 available in the MRI report ‘‘Field Manual for Grid Sampling of PCB Spill Sites to Verify Cleanup.’’ Both the MRI sampling scheme and the guidance document are available on EPA’s PCB website at https://www.epa.gov/pcbs, or from the Program Implementation and Information Division, Office of Resource Conservation and Recovery (5303T), 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001. The major advantage of this sampling scheme is that it is designed to characterize the degree of contamination within the entire sampling area with a high degree of confidence while using fewer samples than any other grid or random sampling scheme. This sampling scheme also allows some sites to be characterized on the basis of composite samples. * * * * * Subpart J—General Records and Reports 22. Amend § 761.180 by revising paragraphs (b)(3) introductory text, removing and reserving paragraph (b)(3)(ii), revising paragraphs (b)(3)(iii) and (v), and (b)(4). The revisions read as follows: ■ § 761.180 Records and monitoring. * * * * * (b) * * * (3) The owner or operator of a PCB disposal facility (including an owner or operator who disposes of their own waste and does not receive or generate manifests) or a commercial storage facility shall submit an annual report using EPA Form 6200–025, which briefly summarizes the records and annual document log required to be maintained and prepared under paragraphs (b)(1) and (b)(2) of this section to the Director, Office Resource Conservation and Recovery at the address listed on the form, by July 15 of each year, beginning with July 15, 1991. The first annual report submitted on July 15, 1991, shall be for the period starting February 5, 1990, and ending December 31, 1990. The annual report shall contain no confidential business information. The annual report shall consist of the information listed in paragraphs (b)(3)(i) through (vi) of this section. * * * * * (iii) The total weight in kilograms of PCB waste in PCB Large High or Low Voltage Capacitors, PCB waste in PCB Article Containers, PCB waste in PCB Transformers, bulk PCB waste, PCB waste in PCB Containers, and other PCB waste in storage at the facility at the beginning of the calendar year, received PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 59693 or generated at the facility, transferred to another facility, or disposed of at the facility during the calendar year. The information must be provided for each of these categories, as appropriate. * * * * * (v) The total weight in kilograms of each of the following PCB categories: PCB waste in PCB Large High or Low Voltage Capacitors, PCB waste in PCB Article Containers, PCB waste in PCB Transformers, bulk PCB waste, PCB waste in PCB Containers, and other PCB waste remaining in storage for disposal at the facility at the end of the calendar year * * * * * (4) Whenever a commercial storer of PCB waste accepts PCBs or PCB Items at their storage facility and transfers the PCB waste off-site to another facility for storage or disposal, the commercial storer of PCB waste shall initiate a manifest under subpart K of this part for the transfer of PCBs or PCB Items to the next storage or disposal facility. Note 1 to paragraph (b)(4): Any requirements for weights in kilograms of PCBs may be calculated values if the internal volume of PCBs in containers and transformers is known and included in the reports, together with any assumptions on the density of the PCBs contained in the containers or transformers. If the internal volume of PCBs is not known, a best estimate may be used. * * * * * Subpart K—PCB Waste Disposal Records and Reports 23. Amend § 761.205 by revising paragraphs (a)(3), (a)(4)(v), and (d) to read as follows: ■ § 761.205 Notification of PCB waste activity (EPA Form 7710–53). (a) * * * (3) Any person required to notify EPA under this section shall file with EPA Form 7710–53. A copy of EPA Form 7710–53 is available on EPA’s website at https://www.epa.gov/pcbs, or from the Program Implementation and Information Division, Office of Resource Conservation and Recovery (5303T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001 ATTN: PCB Notification. Descriptive information and instructions for filling in the form are included in paragraphs (a)(4)(i) through (vii) of this section. (4) * * * (v) The facility’s installation contact, telephone number, and email address. * * * * * (d) Persons required to notify under this section shall file EPA Form 7710– E:\FR\FM\29AUR2.SGM 29AUR2 59694 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations 53 with EPA by mailing the form to the address listed on the form. * * * * * ■ 24. Amend § 761.207 by revising paragraph (a), and paragraph (c) and to read as follows: ddrumheller on DSK120RN23PROD with RULES2 § 761.207 The manifest—general requirements. (a) A generator who transports, or offers for transport, PCB waste for commercial off-site storage or off-site disposal, and a commercial storage or disposal facility who offers for transport a rejected load of PCB waste, must prepare a manifest on EPA Form 8700– 22 and, if necessary, a continuation sheet. The generator shall specify: (1) For each bulk load of PCBs, the identity of the PCB waste, the earliest date of removal from service for disposal, and the weight in kilograms of the PCB waste. (Item 14—Special Handling Instructions box) (2) For each PCB transformer, the serial number if available, or other identification if there is no serial number; the date of removal from service for disposal; and weight in kilograms of the PCB waste in each PCB transformer. (Item 14—Special Handling Instructions box) (3) For each PCB Large High or Low Voltage Capacitor, the serial number if available, or other identification if there is no serial number; the date of removal from service for disposal; and weight in kilograms of the PCB waste in each PCB Large High or Low Voltage Capacitor. (Item 14—Special Handling Instructions box) (4) For each PCB Article Container, the unique identifying number, type of PCB waste (e.g., small capacitors), earliest date of removal from service for disposal, and weight in kilograms of the PCB waste contained therein. (Item 14— Special Handling Instructions box) (5) For each PCB Container, the unique identifying number, type of PCB waste (e.g., soil, debris, small capacitors), earliest date of removal from service for disposal, and weight in kilograms of the PCB waste contained therein. (Item 14—Special Handling Instructions box) (6) For each Other item, the type of PCB waste (e.g., small capacitors, circuit breakers, PCB-Contaminated transformers, pipeline), earliest date of removal from service for disposal, and weight in kilograms of the PCB waste. Note 1 to paragraph (a): EPA Form 8700– 22A is not required as the PCB manifest continuation sheet. In practice, form 8700– 22A does not have adequate space to list required PCB-specific information for several PCB articles. However, if form 8700–22A fits VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 the needs of the user community, the form is permissible. Note 2 to paragraph (a): PCB waste handlers should use the EPA Form 8700–22 instructions as a guide, but should defer to the Part 761 manifest regulations whenever there is any difference between the Part 761 requirements and the instructions. The differences should be minimal. Note 3 to paragraph (a): PCBs are not regulated under RCRA, thus do not have a RCRA waste code. EPA does not require boxes 13 and 31 on forms 8700–22 and 8700– 22A (if used), respectively, to be completed for shipments only containing PCB waste. However, some States track PCB wastes as State-regulated hazardous wastes, and assign State hazardous waste codes to these wastes. In such a case, the user should follow the State instructions for completing the waste code fields. * * * * * (c) A generator may also designate on the manifest one alternate facility which is approved to handle their PCB waste in the event an emergency prevents delivery of the waste to the primary designated facility. * * * * * ■ 25. Amend § 761.212 by revising paragraph (a) introductory text to read as follows: § 761.212 Transporter compliance with the manifest. (a) The transporter must deliver the entire quantity of PCB waste which they have accepted from a generator or a transporter to: * * * * * ■ 26. Amend § 761.213 by revising paragraphs (a)(2) introductory text and (b) introductory text to read as follows: § 761.213 Use of manifest—Commercial storage and disposal facility requirements. (a) * * * (2) If a commercial storage or disposal facility receives an off-site shipment of PCB waste accompanied by a manifest, the owner or operator, or their agent, shall: * * * * * (b) If a commercial storage or disposal facility receives, from a rail or water (bulk shipment) transporter, PCB waste which is accompanied by a shipping paper containing all the information required on the manifest (excluding the EPA identification numbers, generator’s certification, and signatures), the owner or operator, or their agent, must: * * * * * ■ 27. Amend § 761.214 by revising paragraph (a)(1) to read as follows: § 761.214 Retention of manifest records. (a)(1) A generator must keep a copy of each manifest signed in accordance with PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 § 761.210(a) for three years or until they receive a signed copy from the designated facility which received the PCB waste. This signed copy must be retained as a record for at least three years from the date the waste was accepted by the initial transporter. A generator subject to annual document requirements under § 761.180 shall retain copies of each manifest for the period required by § 761.180(a). * * * * * ■ 28. Amend § 761.216 by revising paragraphs (a) introductory text and (a)(6) to read as follows: § 761.216 Unmanifested waste report. (a) If a facility accepts for storage or disposal any PCB waste from an offsite source without an accompanying manifest, or without an accompanying shipping paper as described by § 761.211(e), and the owner or operator of the commercial storage or disposal facility cannot contact the generator of the PCB waste, then they shall notify the Regional Administrator of the EPA region in which their facility is located of the unmanifested PCB waste so that the Regional Administrator can determine whether further actions are required before the owner or operator may store or dispose of the unmanifested PCB waste, and additionally the owner or operator must prepare and submit a letter to the Regional Administrator within 15 days after receiving the waste. The unmanifested waste report must contain the following information: * * * * * (6) Signature of the owner or operator of the facility or their authorized representative; and * * * * * ■ 29. Amend § 761.217 by revising paragraph (a)(2)(ii) to read as follows: § 761.217 Exception reporting. (a) * * * (2) * * * (ii) A cover letter signed by the generator or their authorized representative explaining the efforts taken to locate the PCB waste and the results of those efforts. * * * * * Subpart M—Determining a PCB Concentration for Purposes of Abandonment or Disposal of Natural Gas Pipeline: Selecting Sample Sites, Collecting Surface Samples, and Analyzing Standard PCB Wipe Samples 30. Amend § 761.243 by revising paragraph (a) to read as follows: ■ E:\FR\FM\29AUR2.SGM 29AUR2 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations § 761.243 and size. Standard wipe sample method (a) Collect a surface sample from a natural gas pipe segment or pipeline section using a standard wipe test as defined in § 761.123. Detailed guidance for the entire wipe sampling process appears in the document entitled, ‘‘Wipe Sampling and Double Wash/ Rinse Cleanup as Recommended by the Environmental Protection Agency PCB Spill Cleanup Policy,’’ dated June 23, 1987, and revised on April 18, 1991. This document is available on EPA’s website at https://www.epa.gov/pcbs, or from the Program Implementation and Information Division, Office of Resource Conservation and Recovery (5303T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001. * * * * * ■ 31. Amend § 761.247 by revising paragraph (b)(2)(ii)(B)(2) to read as follows: § 761.247 Sample site selection for pipe segment removal. ddrumheller on DSK120RN23PROD with RULES2 * * * * * (b) * * * (2) * * * (ii) * * * (B) * * * (2) Divide the total number of segments, save one, by six. The resulting number is the interval between the segments you will sample. Do not round this interval. For example, cut a 2.9-mile length of pipe into segments of no more than 40 feet by first, dividing 2.9 miles (15,312 feet) by 40 feet per segment, resulting in 382.8 total segments. Do not round this result. Subtract 1 from the total number of segments and then divide the remaining number of segments, 381.8, by six. The resulting number in this example is 63.6. Do not round. Add 63.6 to the first segment (number 1) to select segment 64.6. Next, add 63.6 to 64.6 to select segment 128.3. Continue in this fashion to select all seven segments: 1, 64.6, 128.3, 191.9, 255.5, 319.2, and 382.8. Now round these numbers to the nearest whole number to determine which segment to sample: 1, 65, 128, 192, 256, 319, and 383. * * * * * ■ 32. Amend § 761.253 by revising paragraph (a) to read as follows: § 761.253 Chemical Analysis. (a) Select applicable method(s) from the following list to extract PCBs and determine the PCB concentration from the standard wipe sample collection medium: SW–846 Method 3540C, Method 3550C, Method 3541, Method VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 3545A, Method 3546, or Method 8082A (all standards incorporated by reference in § 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 § 761.61(c) approval. * * * * * Subpart N—Cleanup Site Characterization Sampling for PCB Remediation Waste in Accordance With § 761.61(a)(2) 33. Amend § 761.267 by revising paragraph (a) to read as follows: ■ § 761.267 Sampling non-porous surfaces. (a) Sample large, nearly flat, nonporous surfaces by dividing the surface into roughly square portions approximately 2 meters on each side. Follow the procedures in § 761.302(a) with the exception of the sampling grid size. * * * * * ■ 34. Revise § 761.272 to read as follows: § 761.272 Chemical extraction and analysis of samples. 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, Method 3520C, Method 3535A, Method 3540C, Method 3541, Method 3545A, Method 3546, or Method 8082A (all standards incorporated by reference in § 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 § 761.61(c) approval. 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 § 761.61(a)(6) 35. Revise § 761.292 to read as follows: ■ § 761.292 Chemical extraction and analysis of individual samples and composite samples. 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, Method 3520C, Method 3535A, Method 3540C, Method 3541, Method 3545A, Method 3546, or Method 8082A (all standards PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 59695 incorporated by reference in § 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 § 761.61(c) approval. Subpart P—Sampling Non-Porous Surfaces for Measurement-Based Use, Reuse, and On-Site or Off-Site Disposal Under § 761.61(a)(6) and Determination Under § 761.79(b)(3) 36. Revise § 761.314 to read as follows: ■ § 761.314 Chemical analysis of standard wipe test samples. Perform the chemical analysis of standard wipe test samples in accordance with § 761.253. Report sample results in micrograms per 100 cm2. Subpart R—Sampling Non-Liquid, NonMetal PCB Bulk Product Waste for Purposes of Characterization for PCB Disposal in Accordance With § 761.62, and Sampling PCB Remediation Waste Destined for Off-Site Disposal, in Accordance With § 761.61 38. Revise § 761.358 to read as follows: ■ § 761.358 Determining the PCB concentration of samples of waste. 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 or PCB bulk product waste: SW–846 Method 3540C, Method 3541, Method 3545A, Method 3546, or Method 8082A (all standards incorporated by reference in § 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 §§ 761.61(c) or 761.62(c) approval. Subpart T—Comparison Study for Validating a New Performance-Based Decontamination Solvent Under § 761.79(d)(4) 39. Amend § 761.386 by revising paragraph (e) to read as follows: ■ § 761.386 Required experimental conditions for the validation study and subsequent use during decontamination. * * * * * (e) Confirmatory sampling for the validation study. Select surface sample locations using representative sampling or a census. Sample a minimum area of 100 cm2 on each individual surface in the validation study. Measure surface E:\FR\FM\29AUR2.SGM 29AUR2 59696 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Rules and Regulations ddrumheller on DSK120RN23PROD with RULES2 concentrations using the standard wipe test, as defined in § 761.123, from which a standard wipe sample is generated for chemical analysis. Guidance for wipe sampling appears in the document entitled ‘‘Wipe Sampling and Double Wash/Rinse Cleanup as Recommended by the Environmental Protection Agency PCB Spill Cleanup Policy,’’ available on EPA’s website at https://www.epa.gov/ pcbs, or from the Program Implementation and Information Division, Office of Resource VerDate Sep<11>2014 19:00 Aug 28, 2023 Jkt 259001 Conservation and Recovery (5303T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460–0001. * * * * * ■ 40. Amend § 761.395 by revising paragraph (b)(1) to read as follows: § 761.395 A validation study. * * * * * (b)(1) Select applicable method(s) from the following list to extract PCBs and determine the PCB concentration PO 00000 Frm 00036 Fmt 4701 Sfmt 9990 from the standard wipe sample collection medium: SW–846 Method 3540C, Method 3550C, Method 3541, Method 3545A, Method 3546, or Method 8082A (all standards incorporated by reference in § 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. * * * * * [FR Doc. 2023–17708 Filed 8–28–23; 8:45 am] BILLING CODE 6560–50–P E:\FR\FM\29AUR2.SGM 29AUR2

Agencies

ENVIRONMENTAL PROTECTION AGENCY

[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 [www.gpo.gov]
[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 
https://www.regulations.gov 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 https://www.epa.gov/dockets.

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: 
[email protected].

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:
     Utilities: Electric power and light companies, natural gas 
companies (NAICS code 22);
     Manufacturers: Chemical manufacturers, electronics 
manufacturers, end-users of electricity, general contractors (NAICS 
codes 31-33);
     Transportation and Warehousing: Various modes of 
transportation including air, rail, water, ground, and pipeline (NAICS 
code 48-49);
     Real Estate: People who rent, lease, or sell commercial 
property (NAICS code 53);
     Professional, Scientific and Technical Services: Testing 
laboratories, environmental consulting (NAICS code 54);
     Public Administration: Federal, State, and local agencies 
(NAICS code 92);
     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);
     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 https://www.epa.gov/pcbs/learn-about-polychlorinated-biphenyls-pcbs 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 https://www.epa.gov/pcbs/policy-and-guidance-polychlorinated-biphenyl-pcbs.

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\ https://www.epa.gov/hw-sw846.
    \5\ https://www.epa.gov/cwa-methods.
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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.
---------------------------------------------------------------------------

    \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:
     Subpart D--Storage and Disposal;
     Subpart K--PCB Waste Disposal Records and Reports;
     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;
     Subpart N--Cleanup Site Characterization Sampling for PCB 
Remediation Waste in Accordance with Sec.  761.61(a)(2);
     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);
     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);
     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
     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, https://www.epa.gov/pcbs/managing-remediation-waste-polychlorinated-biphenyls-pcbs-cleanups.
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \18\ 63 FR 35384, 35410-35411; June 29, 1998.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \19\ PCB Q&A Manual. June 2014. Pg. 91. https://www.epa.gov/sites/production/files/2015-08/documents/qacombined.pdf.
    \20\ https://www.epa.gov/pcbs/managing-remediation-waste-polychlorinated-biphenyls-pcbs-cleanups.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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: www.epa.gov/pcbs/program-contacts.

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.
---------------------------------------------------------------------------

    \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. https://www.sciencedirect.com/science/article/pii/S0045653505001074.
    \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. https://www.sciencedirect.com/science/article/pii/S0048969703003619.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \27\ 59 FR 62788, 62793; Dec. 6, 1994.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \37\ PCB Q&A Manual. June 2014. Pg. 49 Q.3 https://www.epa.gov/sites/production/files/2015-08/documents/qacombined.pdf.
    \38\ Nationwide Risk-based PCB Remediation Waste Disposal 
Approvals. https://www.epa.gov/pcbs/nationwide-risk-based-pcb-remediation-waste-disposal-approvals.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \39\ 63 FR 35384, 35402; June 29, 1998.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \40\ Letter from Barnes Johnson to Pamela Lacey. Dec 14, 2018. 
https://www.epa.gov/pcbs/epas-response-letter-aga-regarding-mdpe-and-hdpe-non-porous-surface.
    \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\ https://www.epa.gov/hwgenerators/uniform-hazardous-waste-manifest-instructions-sample-form-and-continuation-sheet.
---------------------------------------------------------------------------

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 https://www.epa.gov/pcbs/polychlorinated-biphenyl-pcb-question-and-answer-manual-and-response-comment-documents. ``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 www.epa.gov/pcbs/program-contacts. In addition, PCB cleanup guidance (e.g., PCB Facility 
Approval Streamlining Toolbox) is available on the EPA PCB website at 
https://www.epa.gov/pcbs.
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\ https://www.epa.gov/pcbs/table-polychlorinated-biphenyl-pcb-congeners.
    \45\ https://www.epa.gov/pcbs/table-aroclors.
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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. https://www.epa.gov/sites/production/files/2015-08/documents/pcb-guid3-06.pdf.
---------------------------------------------------------------------------

    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. https://www.epa.gov/sites/production/files/documents/final_pime_guidance_december_2012.pdf.

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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.
---------------------------------------------------------------------------

    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\ https://compass.astm.org/Standards/WITHDRAWN/D2784.htm.
---------------------------------------------------------------------------

    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\ https://compass.astm.org/Standards/WITHDRAWN/D3178.htm.
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    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. . . 
.''). https://www.epa.gov/sites/production/files/2015-08/documents/qacombined.pdf.
---------------------------------------------------------------------------

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 
([email protected]) 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.
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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 https://www.epa.gov/pcb to https://www.epa.gov/pcbs. 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 https://www.epa.gov/hw-sw846. 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 www.astm.org. 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 https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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 https://www.epa.gov/hw-sw846.
* * * * *

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; www.epa.gov/dockets. For information on the availability of this 
material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations.html or email [email protected]. 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 www.astm.org.
    (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; www.epa.gov/hw-sw846.
    (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 
effectiveness and integrity during the use of the cap surface which is 
exposed to the environment. A cap shall not be contaminated at a level 
>=1 ppm PCB. Repairs shall begin within 72 hours of discovery for any 
breaches which would impair the integrity of the cap.
    (8) Deed restrictions for caps, fences and low occupancy areas. 
When a cleanup activity conducted under this section includes the use 
of a fence or a cap, the owner of the site must maintain the fence or 
cap, in perpetuity. In addition, whenever a fence, a cap, or the 
procedures and requirements for a low occupancy area, is used, the 
owner of the site must meet the following conditions:
    (i) * * *
    (A) Record, in accordance with State law, a notation on the deed to 
the property, or on some other instrument which is normally examined 
during a title search, that will in perpetuity notify any potential 
purchaser of the property:
    (1) That the land, or the specific portion thereof identified in 
the instrument when only a portion is subject to the instrument, has 
been used

[[Page 59688]]

for PCB remediation waste disposal and, when applicable, that the area 
is restricted to use as a low occupancy area as defined in Sec.  761.3;
    (2) Of the existence of the fence or cap and the requirement to 
maintain the fence or cap, when applicable; and
    (3) The applicable cleanup levels left at the site, including 
inside any fence, under any cap, and/or in a low occupancy area.
    (B) Submit a certification, signed by the owner, that they have 
recorded the notation specified in paragraph (a)(8)(i)(A) of this 
section to the EPA Regional Administrator.
    (ii) The owner of a site being cleaned up under this section may 
remove a fence, cap, or low occupancy designation after conducting 
additional cleanup activities and achieving cleanup levels, specified 
in paragraph (a)(4) of this section, which do not require a fence, cap, 
or low occupancy designation. The owner may remove the notice on the 
deed no earlier than 30 days after achieving the cleanup levels 
specified in this section which do not require a fence, cap, or low 
occupancy designation.
* * * * *
    (b) Performance-based cleanup and disposal. Any person may clean up 
and dispose of PCB remediation waste at a site in full compliance with 
the performance-based cleanup provisions of paragraph (b)(1) of this 
section and disposal provisions of paragraph (b)(2) of this section.

Alternatively, any person may dispose of PCB remediation waste in 
accordance with paragraph (b)(2) of this section, but such disposal 
does not relieve them of cleanup and disposal obligations for any PCBs 
that remain on-site if the provisions of paragraph (b)(1) of this 
section are not complied with.
    (1) Performance-based cleanup of PCB remediation waste--(i) 
Applicability. (A) The performance-based cleanup option may not be used 
to clean up:
    (1) Surface or ground waters.
    (2) Sediments in marine and freshwater ecosystems.
    (3) Sewers or sewage treatment systems.
    (4) Any private or public drinking water sources or distribution 
systems.
    (5) Grazing or agricultural lands.
    (6) Vegetable gardens.
    (7) Sites where the cleanup site, as defined in Sec.  761.3, is 
adjacent to, contains, or is proposed to be redeveloped to contain: 
residential dwellings, hospitals, schools, nursing homes, playgrounds, 
parks, day care centers, endangered species habitats, estuaries, 
wetlands, national parks, national wildlife refuges, commercial 
fisheries, sport fisheries, or surface waters.
    (8) Sites where the PCB contamination is in the 100-year 
floodplain.
    (B) The performance-based cleanup provisions shall not be binding 
upon cleanups conducted under other authorities, including but not 
limited to, actions conducted under section 104 or section 106 of 
CERCLA, or section 3004(u) and (v) or section 3008(h) of RCRA.
    (ii) Cleanup level. All on-site PCB remediation waste above the 
following cleanup levels must be disposed of or decontaminated in 
accordance with paragraph (2).
    (A) The cleanup level for bulk PCB remediation waste and porous 
surfaces is <=1 ppm PCBs.
    (B) The cleanup levels for liquids are the concentrations specified 
in Sec. Sec.  761.79(b)(1) and (b)(2).
    (C) The cleanup levels for non-porous surfaces are the 
concentrations specified in Sec.  761.79(b)(3).
    (iii) Verification sampling. Verification sampling for bulk PCB 
remediation waste and porous surfaces must be conducted in accordance 
with Subpart O. Verification sampling for non-porous surfaces must be 
conducted in accordance with Subpart P. Verification sampling for 
liquid PCB remediation waste must be conducted in accordance with Sec.  
761.269. When analysis of each sample results in a measurement of PCBs 
less than or equal to the levels specified in paragraph (ii) of this 
section, on-site performance-based cleanup is complete.
    (iv) Recordkeeping. Recordkeeping is required in accordance with 
Sec.  761.125(c)(5).
    (v) Cleanup Completion Notification. Within 30 days of sending the 
final shipment of waste offsite for disposal from a site cleaned up 
under this paragraph, the person in charge of the cleanup or the owner 
of the property where the PCB remediation waste was located shall 
notify, in writing, the EPA Regional Administrator, the Director of the 
State or Tribal environmental protection agency, and the Director of 
the county or local environmental protection agency where the cleanup 
was conducted. EPA may require additional on-site cleanup upon finding 
that the cleanup level(s) in (b)(1)(ii) of this section have not been 
met. Upon review of the cleanup completion notification, EPA may 
request that the responsible party submit additional information 
related to the records required under (b)(1)(iv) of this section to 
clarify that the cleanup has been completed in accordance with the 
requirements of this section. The notification shall include:
    (A) Site identification information, including the site address and 
the name, phone number, and email address of the site contact;
    (B) Disposal facility and shipment information, including the 
disposal facility's name and address, the manifest tracking number(s), 
and the quantity of waste shipped;
    (C) A summary of all applicable components of the records in Sec.  
761.125(c)(5); and
    (D) A certification using the language in Sec.  761.3.
    (2) Performance-based disposal. (i) Any person disposing of liquid 
PCB remediation waste under this subsection shall do so according to 
Sec. Sec.  761.60(a) or (e) or decontaminate it in accordance with 
Sec.  761.79.
    (ii) Any person disposing of non-liquid PCB remediation waste under 
this subsection shall do so by one of the following methods:
    (A) Dispose of it in a high temperature incinerator approved under 
Sec.  761.70(b), an alternate disposal method approved under Sec.  
761.60(e), a chemical waste landfill approved under Sec.  761.75, a 
facility with a coordinated approval issued under Sec.  761.77, or a 
hazardous waste landfill permitted by EPA under section 3005 of RCRA, 
or by a State or territory authorized under section 3006 of RCRA.
    (B) Decontaminate it in accordance with Sec.  761.79.
    (iii) Any person may manage or dispose of material containing <50 
ppm PCBs that has been dredged or excavated from waters of the United 
States:
    (A) In accordance with a permit that has been issued under section 
404 of the Clean Water Act, or the equivalent of such a permit as 
provided for in regulations of the U.S. Army Corps of Engineers at 33 
CFR part 320.
    (B) In accordance with a permit issued by the U.S. Army Corps of 
Engineers under section 103 of the Marine Protection, Research, and 
Sanctuaries Act, or the equivalent of such a permit as provided for in 
regulations of the U.S. Army Corps of Engineers at 33 CFR part 320.
    (c) Risk-based cleanup and disposal approval. (1) Any person 
wishing to sample, extract, analyze, cleanup, or dispose of PCB 
remediation waste in a manner other than prescribed in paragraphs (a) 
or (b) of this section, or store PCB remediation waste in a manner 
other than prescribed in Sec.  761.65, must apply in writing to the 
Regional Administrator in the Region

[[Page 59689]]

where the sampling, extraction, analysis, cleanup, disposal, or storage 
site is located, for sampling, extraction, analysis, cleanup, disposal, 
or storage occurring in a single EPA Region; or to the Director, Office 
of Resource Conservation and Recovery, for sampling, extraction, 
analysis, cleanup, disposal, or storage occurring in more than one EPA 
Region. Each application must include information described in the 
notification required by paragraph (a)(3) of this section. EPA may 
request other information that it believes necessary to evaluate the 
application. No person may conduct cleanup activities under this 
paragraph prior to obtaining written approval by EPA.
* * * * *

0
10. Amend Sec.  761.62 by revising paragraphs (c)(1) and (d) to read as 
follows:


Sec.  761.62  Disposal of PCB bulk product waste.

* * * * *
    (c) * * *
    (1) Any person wishing to sample, extract, analyze, or dispose of 
PCB bulk product waste in a manner other than prescribed in paragraphs 
(a) or (b) of this section, or store PCB bulk product waste in a manner 
other than prescribed in Sec.  761.65, must apply in writing to the 
Regional Administrator in the Region where the sampling, extraction, 
analysis, disposal, or storage site is located, for sampling, 
extraction, analysis, disposal, or storage occurring in a single EPA 
Region; or to the Director, Office of Resource Conservation and 
Recovery, for sampling, extraction, analysis, disposal, or storage 
occurring in more than one EPA Region. Each application must contain 
information indicating that, based on technical, environmental, or 
waste-specific characteristics or considerations, the proposed 
sampling, extraction, analysis, disposal, or storage methods or 
locations will not pose an unreasonable risk of injury to health or the 
environment. EPA may request other information that it believes 
necessary to evaluate the application. No person may conduct sampling, 
extraction, analysis, disposal, or storage activities under this 
paragraph prior to obtaining written approval by EPA.
* * * * *
    (d) Disposal as daily landfill cover. Bulk product waste described 
in paragraph (b)(1) of this section may be disposed of as daily 
landfill cover, as long as the daily cover remains in the landfill and 
is not released or dispersed by wind or other action.

0
11. Amend Sec.  761.65 by revising paragraphs (c)(9)(i) and (iii), (g) 
introductory text, (g)(1) introductory text, (g)(1)(iv), (g)(2), 
(g)(3)(i), (g)(4)(i), (g)(5), (6), (7) and (h) to read as follows:


Sec.  761.65  Storage for disposal.

* * * * *
    (c) * * *
    (9) * * *
    (i) The waste is placed in a pile or non-leaking, covered container 
designed and operated to control dispersal of the waste by wind, where 
necessary, by means other than wetting.
* * * * *
    (iii) The storage site must have:
    (A) A liner or container that is designed, constructed, and 
installed to prevent any migration of wastes off or through the liner 
or container into the adjacent subsurface soil, ground water or surface 
water at any time during the active life (including the closure period) 
of the storage site. The liner or container may be constructed of 
materials that may allow waste to migrate into the liner or container. 
The liner or container must be:
    (1) Constructed of materials that have appropriate chemical 
properties and sufficient strength and thickness to prevent failure due 
to pressure gradients (including static head and external hydrogeologic 
forces), physical contact with the waste or leachate to which they are 
exposed, climatic conditions, the stress of installation, and the 
stress of daily operation.
    (2) Placed upon a foundation or base capable of providing support 
to the liner or container and resistance to pressure gradients above 
and below the liner or container to prevent failure of the liner or 
container due to settlement, compression, or uplift.
    (3) In the case of liners, installed to cover all surrounding earth 
likely to be in contact with the waste.
    (B) A cover that meets the requirements of paragraph (c)(9)(iii)(A) 
of this section, is installed to cover all of the stored waste likely 
to be in contact with precipitation, and is secured so as not to be 
functionally disabled by winds expected under normal seasonal 
meteorological conditions at the storage site.
* * * * *
    (g) Financial assurance for closure. A commercial storer of PCB 
waste shall establish financial assurance for closure of each PCB 
storage facility that they own or operate. In establishing financial 
assurance for closure, the commercial storer of PCB waste may choose 
from the following financial assurance mechanisms or any combination of 
mechanisms:
    (1) The ``closure trust fund,'' as specified in Sec.  264.143(a) of 
this chapter, except for paragraph (a)(3) of Sec.  264.143 and except 
when the Regional Administrator specifies modifications for the 
purposes of implementation under TSCA. For purposes of this paragraph, 
the following provisions also apply:
* * * * *
    (iv) The submission of a trust agreement with the wording specified 
in Sec.  264.151(a)(1) of this chapter, including any reference to 
hazardous waste management facilities, shall be deemed to be in 
compliance with the requirement to submit a trust agreement under this 
subpart except when the Regional Administrator specifies modifications 
for the purposes of implementation under TSCA.
    (2) The ``surety bond guaranteeing payment into a closure trust 
fund,'' as specified in Sec.  264.143(b) of this chapter, including the 
use of the surety bond instrument specified at Sec.  264.151(b) of this 
chapter and the standby trust specified at Sec.  264.143(b)(3) of this 
chapter except when the Regional Administrator specifies modifications 
for the purposes of implementation under TSCA. The use of the surety 
bonds, surety bond instruments, and standby trust agreements specified 
in Sec. Sec.  264.143(b) and 264.151(b) of this chapter, with any 
modifications specified by the Regional Administrator, shall be deemed 
to be in compliance with this subpart.
    (3)(i) The ``surety bond guaranteeing performance of closure,'' as 
specified at Sec.  264.143(c) of this chapter, except for Sec.  
264.143(c)(5) of this chapter and except when the Regional 
Administrator specifies modifications for the purposes of 
implementation under TSCA. The submission and use of the surety bond 
instrument specified at Sec.  264.151(c) of this chapter and the 
standby trust specified at Sec.  264.143(c)(3) of this chapter, with 
any modifications specified by the Regional Administrator, shall be 
deemed to be in compliance with the requirements under this subpart 
relating to the use of surety bonds and standby trust funds.
* * * * *
    (4)(i) The ``closure letter of credit'' specified in Sec.  
264.143(d) of this chapter, except for paragraph (d)(8) and except when 
the Regional Administrator specifies modifications for the purposes of 
implementation under TSCA. The submission and use of the irrevocable 
letter of credit instrument specified in Sec.  264.151(d) of this 
chapter and the standby trust specified in Sec.  264.143(d)(3) of this 
chapter, with any

[[Page 59690]]

modifications specified by the Regional Administrator, shall be deemed 
to be in compliance with the requirements of this subpart relating to 
the use of letters of credit and standby trust funds.
* * * * *
    (5) ``Closure insurance,'' as specified in Sec.  264.143(e) of this 
chapter, utilizing the certificate of insurance for closure specified 
at Sec.  264.151(e) of this chapter except when the Regional 
Administrator specifies modifications for the purposes of 
implementation under TSCA. The use of closure insurance as specified in 
Sec.  264.143(e) of this chapter and the submission and use of the 
certificate of insurance specified in Sec.  264.151(e) of this chapter, 
with any modifications specified by the Regional Administrator, shall 
be deemed to be in compliance with the requirements of this subpart 
relating to the use of closure insurance.
    (6) The ``financial test and corporate guarantee for closure,'' as 
described in Sec.  264.143(f) of this chapter except when the Regional 
Administrator specifies modifications for the purposes of 
implementation under TSCA, including a letter signed by the owner's or 
operator's chief financial officer as specified at Sec.  264.151(f) of 
this chapter and, if applicable, the written corporate guarantee 
specified at Sec.  264.151(h) of this chapter. The use of the financial 
test and corporate guarantee specified in Sec.  264.143(f) of this 
chapter, the submission and use of the letter specified in Sec.  
264.151(f) of this chapter, and the submission and use of the written 
corporate guarantee specified at Sec.  264.151(h) of this chapter, with 
any modifications specified by the Regional Administrator, shall be 
deemed to be in compliance with the requirements of this subpart 
relating to the use of financial tests and corporate guarantees.
    (7) The corporate guarantee as specified in Sec.  264.143(f)(10) of 
this chapter except when the Regional Administrator specifies 
modifications for the purposes of implementation under TSCA.
* * * * *
    (h) Release of owner or operator. Within 60 days after receiving 
certifications from the owner or operator and an independent registered 
professional engineer that final closure has been completed in 
accordance with the approved closure plan, EPA will notify the owner or 
operator in writing that the owner or operator is no longer required by 
this section to maintain financial assurance for final closure of the 
facility, unless EPA has reason to believe that final closure has not 
been completed in accordance with the approved closure plan. EPA shall 
provide the owner or operator with a detailed written statement stating 
the reasons why EPA believed closure was not conducted in accordance 
with the approved closure plan.
* * * * *

0
12. Add Sec.  761.66 to subpart D to read as follows:


Sec.  761.66  Emergency situations.

    This section establishes procedures that may be used for purposes 
of the cleanup and/or disposal of PCB releases caused by an emergency 
situation as defined in Sec.  761.3. This section allows the request of 
a waiver of any of the requirements in Sec. Sec.  761.60, 761.61, 
761.62, or 761.65. Any person conducting activities under these 
emergency provisions is also responsible for determining and complying 
with all other applicable Federal, State, and local laws and 
regulations. This section 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.
    (a) Applicability. This section may only be applied to the cleanup 
and/or disposal of PCB releases caused by an emergency situation as 
defined in Sec.  761.3.
    (b) Waiver Request. Any person intending or planning to sample, 
extract, analyze, clean up, store, and/or dispose of PCBs under this 
section shall submit a waiver request to the Regional Administrator in 
the EPA Region where the sampling, extraction, analysis, cleanup, 
storage, and/or disposal would occur, in writing and/or by email no 
later than seven (7) days after discovery of the release or 
implementation of any temporary emergency measures, as applicable. The 
requestor must also send a copy of the waiver request to the Director 
of the State or Tribal environmental agency where the sampling, 
extraction, analysis, cleanup, storage, and/or disposal would occur. If 
the sampling, extraction, analysis, cleanup, storage, and/or disposal 
activities in the waiver request would be conducted in more than one 
Region, then the waiver request must be submitted, in its entirety, to 
the Regional Administrators for all affected Regions.
    (1) This request shall include:
    (i) The contact information for the person requesting the waiver.
    (ii) Location(s) of the release(s).
    (iii) A description of the emergency situation, including 
information about adverse conditions and the incident(s) that caused 
them.
    (iv) The type(s) of material(s) that are contaminated and the 
source of the release, if known.
    (v) The as-found PCB concentrations in the PCB waste, unless the 
materials are being managed as if they contain >=500 ppm PCBs. If 
actual PCB concentrations have not yet been determined, then estimated 
concentrations may be provided in the request. Actual PCB 
concentrations shall be determined before disposal activities commence, 
unless the waste is being managed as if it contains >=500 ppm PCBs.
    (vi) The provisions of Sec. Sec.  761.60, 761.61, 761.62, or 761.65 
that the person requests to waive or modify (or to use alternative 
procedures for) and an explanation of why compliance with the existing 
provisions would be impracticable as a result of the emergency 
situation.
    (vii) The plan for how sampling, extraction, analysis, storage, 
cleanup, and/or disposal of the PCB waste would be conducted if the 
waiver were granted. The plan shall provide information to support how 
the actions described in the plan do not pose an unreasonable risk of 
injury to health or the environment. This plan shall be based on the 
as-found PCB concentrations in the materials unless waste is being 
managed as if it contains PCBs >=500 ppm.
    (viii) Whether or not the PCB waste is near, or likely to impact, 
surface waters, ground waters, drinking water sources or distribution 
systems, wells, sediments, sewers or sewage treatment systems, grazing 
lands, vegetable gardens, residential dwellings, hospitals, schools, 
nursing homes, playgrounds, parks, day care centers, endangered species 
habitats, estuaries, wetlands, national parks, national wildlife 
refuges, commercial fisheries, or sport fisheries and how those areas 
and potential impacts will be addressed.
    (2) To make changes to submitted information described in paragraph 
(b)(1) of this section, the requestor shall submit the new information 
to the EPA Regional Administrator(s) in writing and/or by email. 
Changes must also be sent to the Director of the State or Tribal 
environmental agency or agencies where the request is applicable.
    (c) Approval of waiver requests. The EPA Regional Administrator may 
approve the waiver request, request additional information, approve the 
waiver request with specified changes or additional conditions, or deny 
the waiver request, in writing, by telephone, or by email. An approval, 
with or without changes or conditions, shall be based on the Regional 
Administrator's

[[Page 59691]]

finding that compliance with the regulatory requirements from which a 
waiver is sought is impracticable and that the action approved under 
the waiver will not pose an unreasonable risk of injury to health or 
the environment. At any point, EPA may impose additional sampling, 
extraction, analysis, cleanup, storage, and/or disposal requirements, 
or require the requestor to delay acting on their proposed plan, in 
order to ensure the actions will not pose an unreasonable risk of 
injury to health or the environment.
    (d) Steps after approval of waiver request. Sampling, extraction, 
analysis, cleanup, storage, and disposal activities as described in the 
waiver request may begin after the EPA Regional Administrator responds 
with approval of the waiver request. All sampling, extraction, 
analysis, cleanup, storage, and disposal activities shall be conducted 
in compliance with the terms of the approval and all applicable 
provisions of Sec. Sec.  761.60, 761.61, 761.62, and 761.65 not 
expressly waived by the approval.
    (e) As-found concentration. Sampling, extraction, analysis, 
cleanup, storage, and disposal activities conducted under this section 
shall be based on the as-found concentration of the PCB waste unless 
the materials are being managed as if they contain >=500 ppm PCBs.
    (f) Records, manifests, and certification. Recordkeeping and 
certification are required in accordance with Sec.  761.125(c)(5). The 
manifesting and reporting requirements in Subpart K apply to waste 
disposed of under this section. However, if the person requesting a 
waiver has not previously submitted a notification of PCB activity as 
described in Sec.  761.205 and the requirements of Sec.  761.205 
specify that such notification is required for the cleanup, storage, 
and/or disposal activity, the requestor shall submit the notification 
within ten (10) business days of their waiver request. The requestor 
does not have to wait to obtain their EPA identification number before 
initiating cleanup and/or disposal activities described in their 
approved waiver request. While waiting for their identification number, 
the requestor may use the generic identification ``40 CFR PART 761'' in 
lieu of an EPA identification number on manifests for PCB waste. The 
requestor may alternatively use an EPA identification number they 
previously obtained from EPA under RCRA or a State or territory under 
an authorized RCRA program, if they have one. Once the requestor 
receives an EPA identification number, they shall use it on manifests 
for PCB waste.

0
13. Amend Sec.  761.70 by revising paragraph (d)(4)(i) to read as 
follows:


Sec.  761.70  Incineration.

* * * * *
    (d) * * *
    (4) * * *
    (i) Except as provided in paragraph (d)(5) of this section, the 
Regional Administrator or the appropriate official at EPA Headquarters 
may not approve an incinerator for the disposal of PCBs and PCB Items 
unless they find that the incinerator meets all of the requirements of 
paragraphs (a) and/or (b) of this section.
* * * * *

0
14. Amend Sec.  761.71 by revising paragraphs (b)(2)(iv) and (vi) to 
read as follows:


Sec.  761.71  High efficiency boilers.

* * * * *
    (b) * * *
    (2) * * *
    (iv) The type of equipment, apparatus, and procedures to be used to 
control the feed of PCB liquids to the boiler and to monitor and record 
the carbon monoxide concentration and excess oxygen percentage in the 
stack.
* * * * *
    (vi) The concentration of PCBs and of any other chlorinated 
hydrocarbon in the waste and the results of analyses using ASTM methods 
as follows: Carbon and hydrogen content using ASTM D5373-16, nitrogen 
content using ASTM E258-67 (Reapproved 1987) or ASTM D5373-16, sulfur 
content using ASTM D1266-87, or ASTM D129-64 (Reapproved 1968), 
chlorine content using ASTM D808-87, water and sediment content using 
either ASTM D2709-88 or ASTM D1796-83 (Reapproved 1990), ash content 
using ASTM D482-13, calorific value using ASTM D240-87, carbon residue 
using either ASTM D2158-89 or ASTM D524-88, and flash point using ASTM 
D93-09, ASTM D8174-18, or ASTM D8175-18 (all standards incorporated by 
reference, see Sec.  761.19).
* * * * *

0
15. Amend Sec.  761.75 by revising paragraphs (b)(8)(iii) and (c)(3)(i) 
and (c)(4) to read as follows:


Sec.  761.75  Chemical waste landfills.

* * * * *
    (b) * * *
    (8) * * *
    (iii) Ignitable wastes shall not be disposed of in chemical waste 
landfills. Liquid ignitable wastes are wastes that have a flash point 
less than 60 degrees C (140 degrees F) as determined by the following 
method or an equivalent method: Flash point of liquids shall be 
determined by a Pensky-Martens Closed Cup Tester, using the protocol 
specified in ASTM D93-09 or ASTM D8175-18, a Small Scale Closed Cup 
Tester, using the protocol specified in ASTM D3278-96 (Reapproved 2011) 
or ASTM D8174-18, or the Setaflash Closed Tester using the protocol 
specified in ASTM D3278-96 (Reapproved 2011) (all standards 
incorporated by reference, see Sec.  761.19).
* * * * *
    (c) * * *
    (3) * * *
    (i) Except as provided in paragraph (c)(4) of this section, the 
Regional Administrator may not approve a chemical waste landfill for 
the disposal of PCBs and PCB Items, unless they find that the landfill 
meets all of the requirements of paragraph (b) of this section.
* * * * *
    (4) Waivers. An owner or operator of a chemical waste landfill may 
submit evidence to the Regional Administrator that operation of the 
landfill will not present an unreasonable risk of injury to health or 
the environment from PCBs when one or more of the requirements of 
paragraph (b) of this section are not met. On the basis of such 
evidence and any other available information, the Regional 
Administrator may in their discretion find that one or more of the 
requirements of paragraph (b) of this section is not necessary to 
protect against such a risk and may waive the requirements in any 
approval for that landfill. Any finding and waiver under this paragraph 
will be stated in writing and included as part of the approval.
* * * * *

0
16. Amend Sec.  761.77 by revising paragraphs (a)(1)(ii)(B), (a)(2), 
and (b) introductory text to read as follows:


Sec.  761.77  Coordinated approval.

    (a) * * *
    (1) * * *
    (ii) * * *
    (B) Issue a letter granting or denying the TSCA PCB Coordinated 
Approval. If the EPA Regional Administrator grants the TSCA PCB 
Coordinated Approval, they may acknowledge the non-TSCA approval meets 
the regulatory requirements under TSCA as written, or require 
additional conditions the EPA Regional Administrator has determined are 
necessary to prevent unreasonable risk of injury to health or the 
environment.
* * * * *
    (2) The EPA Regional Administrator may issue a notice of 
deficiency, revoke

[[Page 59692]]

the TSCA PCB Coordinated Approval, require the person to whom the TSCA 
PCB Coordinated Approval was issued to submit an application for a TSCA 
PCB approval, or bring an enforcement action under TSCA if they 
determine that:
* * * * *
    (b) Any person who owns or operates a facility that they intend to 
use to landfill PCB wastes; incinerate PCB wastes; dispose of PCB 
wastes using an alternative disposal method that is equivalent to 
disposal in an incinerator approved under Sec.  761.70 or a high 
efficiency boiler operating in compliance with Sec.  761.71; or store 
PCB wastes may apply for a TSCA PCB Coordinated Approval. The EPA 
Regional Administrator may approve the request if the EPA Regional 
Administrator determines that the activity will not pose an 
unreasonable risk of injury to health or the environment and the 
person:
* * * * *

0
17. Amend Sec.  761.79 by revising paragraph (h)(3) to read as follows:


Sec.  761.79  Decontamination standards and procedures.

* * * * *
    (h) * * *
    (3) Any person wishing to sample, extract, or analyze 
decontaminated material in a manner other than prescribed in paragraph 
(f) of this section must apply in writing to the Regional Administrator 
in the Region where the activity would take place, for decontamination 
activity occurring in a single EPA Region; or to the Director, Office 
of Resource Conservation and Recovery, for decontamination activity 
occurring in more than one EPA Region. Each application must contain a 
description of the material to be decontaminated, the nature and PCB 
concentration of the contaminating material (if known), the 
decontamination method, the proposed extraction, analysis, and/or 
sampling procedure, and a justification for how the proposed 
extraction, analysis, and/or sampling procedure is equivalent to or 
more comprehensive than the extraction, analysis, and/or sampling 
procedure required under paragraph (f) of this section.
* * * * *

Subpart G--PCB Spill Cleanup Policy

0
18. Amend Sec.  761.120 by revising paragraphs (b)(2) and (c) to read 
as follows:


Sec.  761.120  Scope.

* * * * *
    (b) * * *
    (2) In those situations, the Regional Administrator may require 
cleanup in addition to that required under Sec.  761.125(b) and (c). 
However, the Regional Administrator must first make a finding, based on 
the specific facts of a spill, that additional cleanup is necessary to 
prevent unreasonable risk. In addition, before making a final decision 
on additional cleanup, the Regional Administrator must notify the 
Director, Office of Resource Conservation and Recovery of their finding 
and the basis for the finding.
    (c) Flexibility to allow less stringent or alternative 
requirements. (1) EPA retains the flexibility to allow less stringent 
or alternative decontamination measures based upon site-specific 
considerations. EPA will exercise this flexibility if the responsible 
party demonstrates that cleanup to the numerical decontamination levels 
is clearly unwarranted because of risk-mitigating factors, that 
compliance with the procedural requirements or numerical standards in 
the policy is impracticable at a particular site, or that site-specific 
characteristics make the costs of cleanup prohibitive. The Regional 
Administrator will notify the Director, Office of Resource Conservation 
and Recovery of any decision and the basis for the decision to allow 
less stringent cleanup. The purpose of this notification is to enable 
the Director, Office of Resource Conservation and Recovery to ensure 
consistency of spill cleanup standards under special circumstances 
across the regions.
    (2) In emergency situations, as defined in Sec.  761.123, the 
following provisions of this Policy are hereby modified as follows:
    (i) For actions taken directly in response to spills caused by 
emergency situations, responsible parties may use the as-found 
concentrations in the spill materials when determining whether to 
manage the spill under Sec. Sec.  761.125(b) or (c) of this Policy when 
it is not possible to readily determine the spill source concentration 
at a site.
    (ii) For spills caused by emergency situations, the applicable 
notifications in Sec.  761.125(a)(1) must be submitted as soon as 
possible, but no later than 48 hours after the adverse conditions that 
prevented communication have ended.
* * * * *

0
19. Amend Sec.  761.123, by:
0
a. Adding the definition in alphabetical order for ``Emergency 
situation''; and
0
b. Revising the definitions for ``Other restricted access 
(nonsubstation) locations'' and ``Spill''.
    The addition and revisions read as follows:


Sec.  761.123  Definitions.

* * * * *
    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.
* * * * *
    Other restricted access (nonsubstation) locations means areas other 
than electrical substations that are at least 0.1 kilometer (km) from a 
residential/commercial area and limited by man-made barriers (e.g., 
fences and walls) or substantially limited by naturally occurring 
barriers such as mountains, cliffs, or rough terrain. These areas 
generally include industrial facilities and extremely remote rural 
locations. (Areas where access is restricted but are less than 0.1 km 
from a residential/commercial area are considered to be residential/
commercial areas.)
* * * * *
    Spill means both intentional and unintentional spills, leaks, and 
other uncontrolled discharges where the release results in any quantity 
of PCBs running off or about to run off the external surface of the 
equipment or other PCB source, as well as the contamination resulting 
from those releases. This policy applies to spills of 50 ppm or greater 
PCBs. The concentration of PCBs spilled is determined by the PCB 
concentration in the material spilled as opposed to the concentration 
of PCBs in the material onto which the PCBs were spilled, except where 
authorized in Sec.  761.120(c). Where a spill of untested mineral oil 
occurs, the oil is presumed to contain greater than or equal to 50 ppm, 
but less than 500 ppm PCBs and is subject to the relevant requirements 
of this policy.
* * * * *

0
20. Amend Sec.  761.125 by revising paragraphs (a)(2), (c)(3)(iii), and 
(c)(4)(iv) to read as follows:

[[Page 59693]]

Sec.  761.125  Requirements for PCB spill cleanup.

    (a) * * *
    (2) Disposal of cleanup debris and materials. All concentrated 
soils, solvents, rags, and other materials resulting from the cleanup 
of PCBs under this policy shall be properly stored, labeled, and 
disposed of in accordance with the provisions of Subpart D of this 
part, except that such materials shall not be disposed of in a 
hazardous waste landfill permitted by EPA under section 3005 of RCRA or 
by a State or territory authorized under section 3006 of RCRA pursuant 
to Sec.  761.61(b)(2)(ii)(A).
* * * * *
    (c) * * *
    (3) * * *
    (iii) At the option of the responsible party, low-contact, indoor, 
nonimpervious surfaces will be cleaned either to 10 [mu]g/100 cm\2\ or 
to 100 [mu]g/100 cm\2\ and encapsulated. The Regional Administrator, 
however, retains the authority to disallow the encapsulation option for 
a particular spill situation upon finding that the uncertainties 
associated with that option pose special concerns at that site. That 
is, the Regional Administrator would not permit encapsulation if they 
determine that if the encapsulation failed the failure would create an 
imminent hazard at the site.
* * * * *
    (4) * * *
    (iv) At the option of the responsible party, low-contact, outdoor, 
nonimpervious solid surfaces shall be either cleaned to 10 [mu]g/100 
cm\2\ or cleaned to 100 [mu]g/100 cm\2\ and encapsulated. The Regional 
Administrator, however, retains the authority to disallow the 
encapsulation option for a particular spill situation upon finding that 
the uncertainties associated with that option pose special concerns at 
that site. That is, the Regional Administrator would not permit 
encapsulation if they determine that if the encapsulation failed the 
failure would create an imminent hazard at the site.
* * * * *

0
21. Amend Sec.  761.130 by revising paragraph (e) to read as follows:


Sec.  761.130  Sampling requirements.

* * * * *
    (e) EPA recommends the use of a sampling scheme developed by the 
Midwest Research Institute (MRI) for use in enforcement inspections: 
``Verification of PCB Spill Cleanup by Sampling and Analysis.'' 
Guidance for the use of this sampling scheme is available in the MRI 
report ``Field Manual for Grid Sampling of PCB Spill Sites to Verify 
Cleanup.'' Both the MRI sampling scheme and the guidance document are 
available on EPA's PCB website at https://www.epa.gov/pcbs, or from the 
Program Implementation and Information Division, Office of Resource 
Conservation and Recovery (5303T), 1200 Pennsylvania Ave. NW, 
Washington, DC 20460-0001. The major advantage of this sampling scheme 
is that it is designed to characterize the degree of contamination 
within the entire sampling area with a high degree of confidence while 
using fewer samples than any other grid or random sampling scheme. This 
sampling scheme also allows some sites to be characterized on the basis 
of composite samples.
* * * * *

Subpart J--General Records and Reports

0
22. Amend Sec.  761.180 by revising paragraphs (b)(3) introductory 
text, removing and reserving paragraph (b)(3)(ii), revising paragraphs 
(b)(3)(iii) and (v), and (b)(4).
    The revisions read as follows:


Sec.  761.180  Records and monitoring.

* * * * *
    (b) * * *
    (3) The owner or operator of a PCB disposal facility (including an 
owner or operator who disposes of their own waste and does not receive 
or generate manifests) or a commercial storage facility shall submit an 
annual report using EPA Form 6200-025, which briefly summarizes the 
records and annual document log required to be maintained and prepared 
under paragraphs (b)(1) and (b)(2) of this section to the Director, 
Office Resource Conservation and Recovery at the address listed on the 
form, by July 15 of each year, beginning with July 15, 1991. The first 
annual report submitted on July 15, 1991, shall be for the period 
starting February 5, 1990, and ending December 31, 1990. The annual 
report shall contain no confidential business information. The annual 
report shall consist of the information listed in paragraphs (b)(3)(i) 
through (vi) of this section.
* * * * *
    (iii) The total weight in kilograms of PCB waste in PCB Large High 
or Low Voltage Capacitors, PCB waste in PCB Article Containers, PCB 
waste in PCB Transformers, bulk PCB waste, PCB waste in PCB Containers, 
and other PCB waste in storage at the facility at the beginning of the 
calendar year, received or generated at the facility, transferred to 
another facility, or disposed of at the facility during the calendar 
year. The information must be provided for each of these categories, as 
appropriate.
* * * * *
    (v) The total weight in kilograms of each of the following PCB 
categories: PCB waste in PCB Large High or Low Voltage Capacitors, PCB 
waste in PCB Article Containers, PCB waste in PCB Transformers, bulk 
PCB waste, PCB waste in PCB Containers, and other PCB waste remaining 
in storage for disposal at the facility at the end of the calendar year
* * * * *
    (4) Whenever a commercial storer of PCB waste accepts PCBs or PCB 
Items at their storage facility and transfers the PCB waste off-site to 
another facility for storage or disposal, the commercial storer of PCB 
waste shall initiate a manifest under subpart K of this part for the 
transfer of PCBs or PCB Items to the next storage or disposal facility.

    Note 1 to paragraph (b)(4):  Any requirements for weights in 
kilograms of PCBs may be calculated values if the internal volume of 
PCBs in containers and transformers is known and included in the 
reports, together with any assumptions on the density of the PCBs 
contained in the containers or transformers. If the internal volume 
of PCBs is not known, a best estimate may be used.

* * * * *

Subpart K--PCB Waste Disposal Records and Reports

0
23. Amend Sec.  761.205 by revising paragraphs (a)(3), (a)(4)(v), and 
(d) to read as follows:


Sec.  761.205  Notification of PCB waste activity (EPA Form 7710-53).

    (a) * * *
    (3) Any person required to notify EPA under this section shall file 
with EPA Form 7710-53. A copy of EPA Form 7710-53 is available on EPA's 
website at https://www.epa.gov/pcbs, or from the Program Implementation 
and Information Division, Office of Resource Conservation and Recovery 
(5303T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, 
Washington, DC 20460-0001 ATTN: PCB Notification. Descriptive 
information and instructions for filling in the form are included in 
paragraphs (a)(4)(i) through (vii) of this section.
    (4) * * *
    (v) The facility's installation contact, telephone number, and 
email address.
* * * * *
    (d) Persons required to notify under this section shall file EPA 
Form 7710-

[[Page 59694]]

53 with EPA by mailing the form to the address listed on the form.
* * * * *

0
24. Amend Sec.  761.207 by revising paragraph (a), and paragraph (c) 
and to read as follows:


Sec.  761.207  The manifest--general requirements.

    (a) A generator who transports, or offers for transport, PCB waste 
for commercial off-site storage or off-site disposal, and a commercial 
storage or disposal facility who offers for transport a rejected load 
of PCB waste, must prepare a manifest on EPA Form 8700-22 and, if 
necessary, a continuation sheet. The generator shall specify:
    (1) For each bulk load of PCBs, the identity of the PCB waste, the 
earliest date of removal from service for disposal, and the weight in 
kilograms of the PCB waste. (Item 14--Special Handling Instructions 
box)
    (2) For each PCB transformer, the serial number if available, or 
other identification if there is no serial number; the date of removal 
from service for disposal; and weight in kilograms of the PCB waste in 
each PCB transformer. (Item 14--Special Handling Instructions box)
    (3) For each PCB Large High or Low Voltage Capacitor, the serial 
number if available, or other identification if there is no serial 
number; the date of removal from service for disposal; and weight in 
kilograms of the PCB waste in each PCB Large High or Low Voltage 
Capacitor. (Item 14--Special Handling Instructions box)
    (4) For each PCB Article Container, the unique identifying number, 
type of PCB waste (e.g., small capacitors), earliest date of removal 
from service for disposal, and weight in kilograms of the PCB waste 
contained therein. (Item 14--Special Handling Instructions box)
    (5) For each PCB Container, the unique identifying number, type of 
PCB waste (e.g., soil, debris, small capacitors), earliest date of 
removal from service for disposal, and weight in kilograms of the PCB 
waste contained therein. (Item 14--Special Handling Instructions box)
    (6) For each Other item, the type of PCB waste (e.g., small 
capacitors, circuit breakers, PCB-Contaminated transformers, pipeline), 
earliest date of removal from service for disposal, and weight in 
kilograms of the PCB waste.

    Note 1 to paragraph (a):  EPA Form 8700-22A is not required as 
the PCB manifest continuation sheet. In practice, form 8700-22A does 
not have adequate space to list required PCB-specific information 
for several PCB articles. However, if form 8700-22A fits the needs 
of the user community, the form is permissible.


    Note 2 to paragraph (a):  PCB waste handlers should use the EPA 
Form 8700-22 instructions as a guide, but should defer to the Part 
761 manifest regulations whenever there is any difference between 
the Part 761 requirements and the instructions. The differences 
should be minimal.


    Note 3 to paragraph (a):  PCBs are not regulated under RCRA, 
thus do not have a RCRA waste code. EPA does not require boxes 13 
and 31 on forms 8700-22 and 8700-22A (if used), respectively, to be 
completed for shipments only containing PCB waste. However, some 
States track PCB wastes as State-regulated hazardous wastes, and 
assign State hazardous waste codes to these wastes. In such a case, 
the user should follow the State instructions for completing the 
waste code fields.

* * * * *
    (c) A generator may also designate on the manifest one alternate 
facility which is approved to handle their PCB waste in the event an 
emergency prevents delivery of the waste to the primary designated 
facility.
* * * * *

0
25. Amend Sec.  761.212 by revising paragraph (a) introductory text to 
read as follows:


Sec.  761.212  Transporter compliance with the manifest.

    (a) The transporter must deliver the entire quantity of PCB waste 
which they have accepted from a generator or a transporter to:
* * * * *

0
26. Amend Sec.  761.213 by revising paragraphs (a)(2) introductory text 
and (b) introductory text to read as follows:


Sec.  761.213  Use of manifest--Commercial storage and disposal 
facility requirements.

    (a) * * *
    (2) If a commercial storage or disposal facility receives an off-
site shipment of PCB waste accompanied by a manifest, the owner or 
operator, or their agent, shall:
* * * * *
    (b) If a commercial storage or disposal facility receives, from a 
rail or water (bulk shipment) transporter, PCB waste which is 
accompanied by a shipping paper containing all the information required 
on the manifest (excluding the EPA identification numbers, generator's 
certification, and signatures), the owner or operator, or their agent, 
must:
* * * * *

0
27. Amend Sec.  761.214 by revising paragraph (a)(1) to read as 
follows:


Sec.  761.214  Retention of manifest records.

    (a)(1) A generator must keep a copy of each manifest signed in 
accordance with Sec.  761.210(a) for three years or until they receive 
a signed copy from the designated facility which received the PCB 
waste. This signed copy must be retained as a record for at least three 
years from the date the waste was accepted by the initial transporter. 
A generator subject to annual document requirements under Sec.  761.180 
shall retain copies of each manifest for the period required by Sec.  
761.180(a).
* * * * *

0
28. Amend Sec.  761.216 by revising paragraphs (a) introductory text 
and (a)(6) to read as follows:


Sec.  761.216  Unmanifested waste report.

    (a) If a facility accepts for storage or disposal any PCB waste 
from an offsite source without an accompanying manifest, or without an 
accompanying shipping paper as described by Sec.  761.211(e), and the 
owner or operator of the commercial storage or disposal facility cannot 
contact the generator of the PCB waste, then they shall notify the 
Regional Administrator of the EPA region in which their facility is 
located of the unmanifested PCB waste so that the Regional 
Administrator can determine whether further actions are required before 
the owner or operator may store or dispose of the unmanifested PCB 
waste, and additionally the owner or operator must prepare and submit a 
letter to the Regional Administrator within 15 days after receiving the 
waste. The unmanifested waste report must contain the following 
information:
* * * * *
    (6) Signature of the owner or operator of the facility or their 
authorized representative; and
* * * * *

0
29. Amend Sec.  761.217 by revising paragraph (a)(2)(ii) to read as 
follows:


Sec.  761.217  Exception reporting.

    (a) * * *
    (2) * * *
    (ii) A cover letter signed by the generator or their authorized 
representative explaining the efforts taken to locate the PCB waste and 
the results of those efforts.
* * * * *

Subpart M--Determining a PCB Concentration for Purposes of 
Abandonment or Disposal of Natural Gas Pipeline: Selecting Sample 
Sites, Collecting Surface Samples, and Analyzing Standard PCB Wipe 
Samples

0
30. Amend Sec.  761.243 by revising paragraph (a) to read as follows:

[[Page 59695]]

Sec.  761.243  Standard wipe sample method and size.

    (a) Collect a surface sample from a natural gas pipe segment or 
pipeline section using a standard wipe test as defined in Sec.  
761.123. Detailed guidance for the entire wipe sampling process appears 
in the document entitled, ``Wipe Sampling and Double Wash/Rinse Cleanup 
as Recommended by the Environmental Protection Agency PCB Spill Cleanup 
Policy,'' dated June 23, 1987, and revised on April 18, 1991. This 
document is available on EPA's website at https://www.epa.gov/pcbs, or 
from the Program Implementation and Information Division, Office of 
Resource Conservation and Recovery (5303T), Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.
* * * * *

0
31. Amend Sec.  761.247 by revising paragraph (b)(2)(ii)(B)(2) to read 
as follows:


Sec.  761.247  Sample site selection for pipe segment removal.

* * * * *
    (b) * * *
    (2) * * *
    (ii) * * *
    (B) * * *
    (2) Divide the total number of segments, save one, by six. The 
resulting number is the interval between the segments you will sample. 
Do not round this interval. For example, cut a 2.9-mile length of pipe 
into segments of no more than 40 feet by first, dividing 2.9 miles 
(15,312 feet) by 40 feet per segment, resulting in 382.8 total 
segments. Do not round this result. Subtract 1 from the total number of 
segments and then divide the remaining number of segments, 381.8, by 
six. The resulting number in this example is 63.6. Do not round. Add 
63.6 to the first segment (number 1) to select segment 64.6. Next, add 
63.6 to 64.6 to select segment 128.3. Continue in this fashion to 
select all seven segments: 1, 64.6, 128.3, 191.9, 255.5, 319.2, and 
382.8. Now round these numbers to the nearest whole number to determine 
which segment to sample: 1, 65, 128, 192, 256, 319, and 383.
* * * * *

0
32. Amend Sec.  761.253 by revising paragraph (a) to read as follows:


Sec.  761.253  Chemical Analysis.

    (a) Select applicable method(s) from the following list to extract 
PCBs and determine the PCB concentration from the standard wipe sample 
collection medium: SW-846 Method 3540C, Method 3550C, Method 3541, 
Method 3545A, Method 3546, or Method 8082A (all standards incorporated 
by reference in 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.
* * * * *

Subpart N--Cleanup Site Characterization Sampling for PCB 
Remediation Waste in Accordance With Sec.  761.61(a)(2)

0
33. Amend Sec.  761.267 by revising paragraph (a) to read as follows:


Sec.  761.267  Sampling non-porous surfaces.

    (a) Sample large, nearly flat, non-porous surfaces by dividing the 
surface into roughly square portions approximately 2 meters on each 
side. Follow the procedures in Sec.  761.302(a) with the exception of 
the sampling grid size.
* * * * *

0
34. Revise Sec.  761.272 to read as follows:


Sec.  761.272  Chemical extraction and analysis of samples.

    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, Method 3520C, 
Method 3535A, Method 3540C, Method 3541, Method 3545A, Method 3546, or 
Method 8082A (all standards incorporated by reference in 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.

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)

0
35. Revise Sec.  761.292 to read as follows:


Sec.  761.292  Chemical extraction and analysis of individual samples 
and composite samples.

    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, Method 3520C, 
Method 3535A, Method 3540C, Method 3541, Method 3545A, Method 3546, or 
Method 8082A (all standards incorporated by reference in 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.

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)

0
36. Revise Sec.  761.314 to read as follows:


Sec.  761.314  Chemical analysis of standard wipe test samples.

    Perform the chemical analysis of standard wipe test samples in 
accordance with Sec.  761.253. Report sample results in micrograms per 
100 cm\2\.

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

0
38. Revise Sec.  761.358 to read as follows:


Sec.  761.358  Determining the PCB concentration of samples of waste.

    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 or PCB bulk product waste: SW-846 
Method 3540C, Method 3541, Method 3545A, Method 3546, or Method 8082A 
(all standards incorporated by reference in 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. Sec.  761.61(c) or 761.62(c) approval.

Subpart T--Comparison Study for Validating a New Performance-Based 
Decontamination Solvent Under Sec.  761.79(d)(4)

0
39. Amend Sec.  761.386 by revising paragraph (e) to read as follows:


Sec.  761.386  Required experimental conditions for the validation 
study and subsequent use during decontamination.

* * * * *
    (e) Confirmatory sampling for the validation study. Select surface 
sample locations using representative sampling or a census. Sample a 
minimum area of 100 cm\2\ on each individual surface in the validation 
study. Measure surface

[[Page 59696]]

concentrations using the standard wipe test, as defined in Sec.  
761.123, from which a standard wipe sample is generated for chemical 
analysis. Guidance for wipe sampling appears in the document entitled 
``Wipe Sampling and Double Wash/Rinse Cleanup as Recommended by the 
Environmental Protection Agency PCB Spill Cleanup Policy,'' available 
on EPA's website at https://www.epa.gov/pcbs, or from the Program 
Implementation and Information Division, Office of Resource 
Conservation and Recovery (5303T), Environmental Protection Agency, 
1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.
* * * * *
0
40. Amend Sec.  761.395 by revising paragraph (b)(1) to read as 
follows:


Sec.  761.395  A validation study.

* * * * *
    (b)(1) Select applicable method(s) from the following list to 
extract PCBs and determine the PCB concentration from the standard wipe 
sample collection medium: SW-846 Method 3540C, Method 3550C, Method 
3541, Method 3545A, Method 3546, or Method 8082A (all standards 
incorporated by reference in 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.
* * * * *
[FR Doc. 2023-17708 Filed 8-28-23; 8:45 am]
BILLING CODE 6560-50-P

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