[Federal Register Volume 79, Number 63 (Wednesday, April 2, 2014)]
[Rules and Regulations]
[Pages 18471-18477]
[FR Doc No: 2014-07393]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 761

[EPA-HQ-RCRA-2013-0396; FRL-9908-98-OSWER]
RIN 2050-AG79

Polychlorinated Biphenyls (PCBs): Manufacturing (Import)
Exemption for the Defense Logistics Agency (DLA)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA or the Agency)
is taking direct final action on a petition from the United States
Defense Logistics Agency (DLA) to import foreign-manufactured
polychlorinated biphenyls (PCBs). For purposes of the Toxic Substances
Control Act (TSCA), ``manufacture'' is defined to include the import of
chemical substances into the customs territory of the United States.
With certain exceptions, section 6(e)(3) of TSCA bans the manufacture,
processing, and distribution in commerce of PCBs. One of these
exceptions is TSCA section 6(e)(3)(B), which gives EPA authority to
grant petitions to import PCBs into the customs territory of the United
States for a period of up to 12 months, provided EPA can make certain
findings by rule. On April 23, 2013, EPA received a petition from DLA,
a component of the United States Department of Defense (DoD), to import
foreign-manufactured PCBs that DoD currently owns in Japan for disposal
in the United States. EPA is granting DLA's petition as of July 1,
2014. This decision to grant the petition allows DLA to manufacture
(i.e., import) certain PCBs for disposal. EPA has granted two previous
exemptions in 2003 and 2007 to DLA for similar petitions to import PCBs
for disposal. Without an exemption granted by EPA, DLA would not be
allowed to import the PCB waste to the U.S. for proper disposal. In
fact, if the exemption is not granted, it is very likely that DLA will
not be able to find any country willing to accept and properly dispose
of the PCB waste.

DATES: This direct final rule will be effective July 1, 2014 without
further notice, unless EPA receives adverse written comment or a
request for an informal hearing (per 40 CFR part 750, subpart B) by May
2, 2014 If adverse comments or a request for an informal hearing are
received, EPA will publish a timely withdrawal in the Federal Register
informing the public that this rule will not take effect based on the
direct final rule. EPA will then address all public comments in any
subsequent final rule based on the proposed rule which accompanies this
direct final rule.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2013-0396, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for
submitting comments.
     Email<EMAIL_ADDRESS>Attention Docket ID No. EPA-
HQ-RCRA-2013-0396.
     Mail: RCRA Docket, Mail Code 28221T, U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460.
Attention Docket ID No. EPA-HQ-RCRA-2013-0396. Please include two
copies.
     Hand Delivery: Please deliver two copies to the EPA Docket
Center (EPA/DC), WJC West, Room 3334, 1301 Constitution Ave. NW.,
Washington, DC. Such deliveries are only accepted during the Docket's
normal hours of operation, and special arrangements should be made for
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2013-0396. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/dockets/.
    Docket: All documents in the docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket materials are available either electronically
in www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, WJC
West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the RCRA
Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Kelly Greene, U.S. Environmental
Protection Agency, Office of Resource Conservation and Recovery, (MC:
5304P), 1200 Pennsylvania Avenue NW., Washington, DC 20460, Phone: 703-
347-0363; or by email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. Why is EPA using a direct final rule?
II. Does this action apply to me?
III. Background
IV. Findings Necessary To Grant Petitions
    A. No Unreasonable Risk Finding
    B. Good Faith Efforts Finding
V. Final Disposition of This Exemption Petition
    A. The Petition: April 23, 2013 Petition To Import PCBs Located
in Japan
    B. EPA's Final Decision on the Petition: April 23, 2013
Petition; EPA Is Granting This Petition
VI. References
VII. Statutory and Executive Order Reviews
    A. Regulatory Flexibility Act
    B. Congressional Review Act

I. Why is EPA using a direct final rule?

    EPA is publishing this rule as a direct final rule because the
Agency views this action as noncontroversial and EPA anticipates no
adverse comments since EPA has granted two previous exemptions to DLA
for similar petitions to import PCB waste (68 FR 4934 and 72 FR 53152)
(Ref. 2, 3). EPA received no adverse comments or requests for an
informal hearing for either of the previous two DLA petitions, the last
of which was granted on September 18, 2007. In the absence of an
exemption, import of the waste identified by the petitioner would be
banned from being imported into the customs territory of the United
States by section 6(e)(3) of TSCA. The petition, dated April 23, 2013,
is for an exemption to import for proper disposal certain PCBs under
the control of DLA that are currently in use or storage in Japan (Ref.
1). Additionally, EPA believes that a direct final rule will expedite
processing of an import exemption and the proper disposal of the PCB
wastes, further reducing risks from long term storage overseas.
    If EPA receives adverse comment, we will publish a timely
withdrawal in the

Federal Register informing the public that the rule will not take
effect based on the direct final rule. Any parties interested in
commenting must do so at this time. If an informal hearing is
requested, the Agency will publish the place and time of the hearing.
Public comments will be accepted for one week after the close of the
informal hearing. If we receive adverse comments, after withdrawing the
direct final rule, we will address all public comments in any
subsequent final rule based on the accompanying proposed rule.
    If the Agency does not receive adverse comments or a request for an
informal hearing, this direct final rule will take effect on July 1,
2014.

II. Does this action apply to me?

    This action applies to the petitioner, the U.S. Defense Logistics
Agency. However, you may be potentially affected by this action if you
process, distribute in commerce, or dispose of the PCB waste imported
by DLA, i.e., you are an EPA-permitted PCB waste handler. Potentially
affected categories and entities include, but are not necessarily
limited to:
     Waste treatment and disposal North American Industrial
Classification System ((NAICS) code 5622), e.g., facilities that store
or dispose of PCB waste.
     Materials recovery facilities (NAICS code 56292), e.g.,
facilities that process and/or recycle metals.
     Public administration (NAICS code 92), e.g., the
petitioning agency (i.e., DLA).
    This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities potentially affected by this
action. Other types of entities not listed in this section could also
be affected. The NAICS codes have been provided to assist you and
others in determining whether this action might apply to certain
entities. To determine whether you or your business may be affected by
this action, you should carefully examine the applicability provisions
in 40 CFR part 761. If you have any questions regarding the
applicability of this action to a particular entity, consult the person
listed under the FOR FURTHER INFORMATION CONTACT section of this
document.

III. Background

    Section 6(e)(3)(A) of TSCA prohibits the manufacture, processing,
and distribution in commerce of PCBs, except for the distribution in
commerce of PCBs that were sold for purposes other than resale before
April 1, 1979. Section 6(e)(1) of TSCA also authorizes EPA to regulate
the disposal of PCBs consistent with the provisions in section 6(e)(2)
and (3) of TSCA.
    Section 6(e)(3)(B) of TSCA, however, stipulates that any person may
petition the EPA Administrator for an exemption from the prohibition on
the manufacture, processing, and distribution in commerce of PCBs. The
Administrator may by rule grant an exemption if the Administrator finds
that:
    (i) An unreasonable risk of injury to health or the environment
would not result, and (ii) good faith efforts have been made to develop
a chemical substance which does not present an unreasonable risk of
injury to health or environment and which may be substituted for such
polychlorinated biphenyl. (15 U.S.C. 2605(e)(3)(B)(i)-(ii)).
    The Administrator may prescribe terms and conditions for an
exemption and may grant an exemption for a period of not more than one
year from the date the petition is granted. In addition, section
6(e)(4) of TSCA requires that a rule under section 6(e)(3)(B) of TSCA
be promulgated in accordance with sections 6(c)(2), (3) and (4) of
TSCA, which provide for publication of a proposed rule, the opportunity
for written comments and an informal hearing, if requested, and
publication of a final rule.
    EPA's procedures for rulemaking under section 6 of TSCA are found
under 40 CFR part 750. This part includes Subpart B--Interim Procedural
Rules for Manufacturing Exemptions, which describes the required
content for manufacturing exemption petitions and the procedures that
EPA follows in rulemaking regarding these petitions. These rules are
codified at 40 CFR 750.10 through 750.21.

IV. Findings Necessary To Grant Petitions

A. No Unreasonable Risk Finding

    Before granting an exemption petition, section 6(e)(3)(B)(i) of
TSCA requires the Administrator to find that granting an exemption
would not result in an unreasonable risk of injury to health or to the
environment. EPA expects a petitioner to demonstrate in its petition
that the activity will not pose an unreasonable risk. (See 40 CFR
750.11.)
    To determine whether a risk is unreasonable, EPA balances the
probability that harm will occur to health or to the environment
against the benefits to society from granting or denying each petition.
See generally, 15 U.S.C. 2605(c)(1). Specifically, EPA considers the
following factors:
    1. Effects of PCBs on human health and the environment. In deciding
whether to grant an exemption, EPA considers the magnitude of exposure
and the effects of PCBs on humans and the environment. The following
discussion summarizes EPA's assessment of these factors. A more
complete discussion of human health and environmental effects of PCBs
is provided in the advance notice of proposed rulemaking for the
reassessment of PCB use authorizations in the Federal Register of April
7, 2010 (75 FR 17645) (Ref. 5). The Agency for Toxic Substances and
Disease Registry (ATSDR) Toxicological Profile for PCBs (2000) has also
provided a recent review of PCB human health and environmental effects
(Ref. 6).
    a. Health effects. EPA has determined that PCBs cause significant
human health effects, including cancer (classified as a probable human
carcinogen), immune system suppression, liver damage, skin irritation,
and endocrine disruption. PCBs exhibit neurotoxicity, as well as
reproductive and developmental toxicity. PCBs are readily absorbed
through the skin and are absorbed at even faster rates when inhaled.
Because PCBs are stored in animal fatty tissue, humans are also exposed
to PCBs through ingestion of animal products.
    b. Environmental effects. Certain PCB congeners are among the most
stable chemicals known, and decompose very slowly once they are
released into the environment. PCBs are absorbed and stored in the
fatty tissue of higher organisms as they bioaccumulate up the food
chain through invertebrates, fish, and mammals. Significantly,
bioaccumulated PCBs appear to be even more toxic than those found in
the ambient environment, since the more toxic PCB congeners are more
persistent and thus more likely to be retained. PCBs also have
reproductive and other toxic effects in aquatic organisms, birds, and
mammals.
    c. Risks. Toxicity and exposure are the two basic components of
risk. EPA has concluded that exposure of humans or the environment to
PCBs may be significant, depending on such factors as the quantity of
PCBs involved in the exposure and the effect of exposure. Minimizing
exposure to PCBs should minimize potential risk. As shown through the
40 CFR Part 761 regulations that detail proper disposal and storage
options, EPA has previously determined that some activities, including
the disposal of PCBs, pose no unreasonable risks. Other activities,
such as long-term

storage of PCB waste, are generally considered by EPA to pose
unreasonable risks.
    2. Benefits and costs. The benefits to society of granting an
exemption vary, depending on the activity for which the exemption is
requested. The reasonably ascertainable costs of denying an exemption
vary, depending on the individual petition. As discussed in Section V
of this preamble, EPA has taken benefits and costs into consideration
when evaluating this exemption petition.

B. Good Faith Efforts Finding

    Section 6(e)(3)(B)(ii) of TSCA requires the Administrator to find
that ``good faith efforts have been made to develop a chemical
substance which does not present an unreasonable risk of injury to
health or the environment and which may be substituted for [PCBs].''
EPA expects a petitioner to demonstrate in its petition how this
standard is met. (See 40 CFR 750.11.) EPA considers several factors in
determining whether good faith efforts have been made. For each
petition, EPA considers the kind of exemption the petitioner is
requesting and whether the petitioner can demonstrate that time and
effort have been expended to develop or search for a substitute. In
each case, the burden is on the petitioner to show specifically what
was done to substitute non-PCB material for PCBs or to show why it was
not feasible to substitute non-PCBs for PCBs.
    To satisfy this finding for requests for an exemption to import
PCBs for disposal, a petitioner must show why such activities should
occur in the United States and what steps have been taken to develop a
substitute. While requiring a petitioner to demonstrate that good faith
efforts to develop a substitute for PCBs makes sense when dealing with
exemption petitions for traditional manufacture and distribution in
commerce, the issue of the development of substitute chemicals seems to
have little bearing on whether to grant a petition for exemption that
would allow the import into the United States for disposal of PCB
waste. However, because section 6(e)(3)(B) allows a petitioner to
request an exemption from any of the prohibitions listed in section
6(e)(3)(A), EPA believes that it is appropriate to apply the standard
in a way that is relevant to the particular exemption requested.
Therefore, EPA believes that the relevant ``good faith'' issue for an
exemption request to import PCBs for disposal in the customs territory
of the United States is whether the disposal of the waste could and/or
should occur outside the United States.

V. Final Disposition of This Exemption Petition

A. The Petition: April 23, 2013 Petition To Import PCBs Located in
Japan

    On April 23, 2013, DLA submitted a petition seeking a 1-year
exemption to import PCBs and PCB Items currently in storage at U.S.
military installations in Japan (Ref. 1). DLA estimates that as much as
1,014,222 pounds of waste contaminated with PCBs could be generated in
Japan through the calendar year 2014. The material in Japan consists of
transformers (drained and un-drained), large and small capacitors,
voltage regulators, switches, electromagnets, circuit breakers,
reclosers, electrical cable, electric light ballasts, used dielectric
fluids containing PCBs, and PCB-contaminated soil and debris (e.g.,
rags, small parts, packaging materials). Ninety four percent of the
waste is at PCB concentrations below 50 ppm. Details of the particular
amounts and concentrations DLA is petitioning to import can be found in
Attachment 1 of the DLA petition, which can be found in the docket. EPA
has concluded that import of DLA's PCBs will not cause a shortage of
domestic PCB storage or disposal capacity. In addition, EPA has
concluded that the amounts of PCBs available for import are small in
comparison to domestic generation, and pose little threat of
overwhelming domestic disposal capacity. (Ref. 4)
    1. Information regarding no unreasonable risk provided by the
petitioner. DLA will package, transport, treat, and dispose of these
PCBs in the same manner as PCBs identified in its previous petitions,
which EPA granted in 2003 and 2007 to allow the import of up to
4,293,621 and 1,328,428 pounds of waste contaminated with PCBs,
respectively (Ref. 2, 3). Specifically, DLA notes its adherence to
applicable modal and inter-modal national and/or international
packaging, marking, labeling and shipping paper regulations, such as
the United Nations (UN) Performance Oriented Packaging (POP) standards,
the International Maritime Dangerous Goods (IMDG) Code/International
Maritime Organization (IMO) requirements, the International Civil
Aviation Organization (ICAO) Technical Instructions, requirements of
the International Air Transport Association (IATA), UN Recommendations
on the Transport of Dangerous Goods Code, and provisions of the
Hazardous Materials Regulations at 49 CFR 100-199. DLA further notes
that proper handling and shipping will include blocking, bracing, over
packing, and inclusion of spill containment devices, as required by
applicable transportation regulations.
    DLA further indicates that it will handle and dispose of all PCBs
and PCB Items in conformance with the PCB regulations at 40 CFR Part
761. DLA has considerable experience and expertise in awarding and
administering disposal contracts for PCBs and PCB Items in the U.S. and
will award contracts with commercial firms in accordance with all
applicable Federal procurement statutes and the Federal Acquisition
Regulations (FAR). DLA additionally notes that only companies with the
required Federal and/or state-permits for the transportation, storage,
treatment and disposal of PCBs and PCB Items would be considered as
eligible for award of such contracts. DLA's exemption petition does not
request to limit the storage, treatment or disposal of PCBs and PCB
Items imported from Japan to management at a particular facility;
rather DLA requests that any storage, treatment, or disposal facility
that has the appropriate Federal and/or state permits for PCBs and PCB
Items and for which DLA has entered a contract be allowed to manage
these materials.
    DLA notes that it and its contractors have extensive experience in
safely returning PCBs and PCB Items to the United States for treatment
and disposal, and that DLA has returned several million pounds of PCBs
and PCB Items for compliant disposal in the United States, including
3.6 million pounds of foreign-manufactured PCBs and PCB Items imported
under the two previously granted exemptions.\1\ Throughout the course
of this experience, DLA has used the same standards and procedures
discussed above without spills or safety problems affecting human
health or the environment.
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    \1\ As noted previously, DLA had authority to import up to 5.5
million pounds of PCBs and PCB Items.
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    2. Information regarding good faith efforts provided by the
petitioner. DLA states in its petition that disposal of its PCBs and
PCB Items in Japan is not an available disposal option.
    As DLA noted in its exemption request, there are significant
impediments to disposal on DOD military installations in Japan. As
noted in the DLA petition, while there may exist certain mobile
technology capable of treating some of the PCBs and PCB Items generated
by United States military forces in Japan, there are also significant
impediments to obtaining the

permits that would be required to have that technology approved for use
on United States military installations, where residual wastes and
metals would still need to be taken off-installation for disposal.
Complicating the situation further is that any transfer or sale of
property from the U.S. military installations into Japanese commerce is
considered an ``import'' of property. Japan has banned the importation
of PCBs and PCB Items at any detectable concentration including
concentrations below the very stringent 0.5 ppm level at which Japan
regulates domestic PCBs. DLA's market research suggested a potential
could exist for disposal of some limited waste streams in newly
permitted Japanese facilities (i.e., ``off- installation'' disposal).
However, DLA has not been able to identify any change in Japanese law
that would allow off-installation disposal in Japan nor the existence
of any properly permitted vendor or technology that would be currently
available to properly treat the DOD generated PCBs and PCB Items within
the confines of the United States installations in Japan. Accordingly,
on-site treatment does not present a reasonable alternative to the
import of these wastes for proper disposal in the United States in
compliance with TSCA Section 6(e)(3).
    DLA further notes that disposal of this waste in another country is
not a viable option. DLA cites its 1999 Report to Congress as
background on the difficulty it faces in finding suitable disposal
alternatives for PCBs and PCB Items generated or owned by DOD overseas.
In particular, DLA discusses the difficulty of shipping waste from
Japan to other countries as a result of the Basel Convention. Prior to
its previous petitions, DLA and its primary disposal contractor made
extensive contacts over a period of several years with Japanese
officials and disposal facilities in numerous locations outside the
United States in an effort to identify firms who could dispose of such
PCBs and PCB Items while satisfying the Basel Convention requirements.
At that time, the DOD also consulted at length with the State
Department officials in Japan and in the United States whose
responsibilities include international environmental matters. The
variety of problems identified in these contacts regarding overseas
disposal of certain PCB Items resulted in a consensus that use of
existing facilities in other developed countries was not a reasonable
alternative. Even if other countries had the physical capacity to
accept these wastes, non-governmental organizations might be expected
to oppose the DOD's disposal of its waste in third countries (that is,
countries other than Japan and the United States) because the United
States has the technical capability to properly dispose of the
hazardous materials itself.
    DLA concludes that its diligent but so far unsuccessful attempts to
locate appropriate disposal sites outside the United States demonstrate
its good faith efforts to pursue alternatives to disposal within the
United States and fulfill the requirements of TSCA 6(e)(3)(B).

B. EPA's Final Decision on the Petition: April 23, 2013 Petition; EPA
Is Granting This Petition

    1. No unreasonable risk determination. EPA finds generally that the
disposal of imported PCBs and PCB Items at an EPA-approved PCB disposal
facility poses no unreasonable risks as these facilities have been
approved on the basis of that standard. In addition, as with the
previous two petitions, EPA concurs with DLA's assessment that
transportation of this waste will pose no unreasonable risk if
conducted in accordance with all applicable laws and regulations.
Therefore, for the following reasons, EPA finds that there is no
unreasonable risk from importing the PCBs and PCB Items by DLA from
Japan to the United States for disposal, as outlined below.
    i. PCBs are hazardous and pose a potential risk to health and the
environment. Proper disposal would reduce PCB-associated risks.
    ii. Risk results from a combination of exposure (likelihood,
magnitude and duration) and the probability of effects occurring under
the conditions of exposure. Because the probability of a transport
accident occurring is low (Ref. 4), the likelihood of exposure to PCBs
is commensurately low. Consequently, the probability of adverse effects
to human health or the environment is low.
    iii. The PCB-containing materials will be packaged in a manner
consistent with Federal, State, and local regulations addressing the
risks associated with the storage and transportation of hazardous
wastes. In addition, PCB waste will be continuously monitored during
the water transport from Japan to the United States. Contingency plans
are required by the International Maritime Dangerous Goods Code and DOT
to be in place before and after the import of PCB-containing items to
the United States. Moreover, the PCB Items that will be transported to
the United States generally have a low combustion likelihood, which
will make the probability of fires low. Together, these contingency
measures will minimize exposure to humans and the environment in the
event of an accident or emergency during ocean transport.
    iv. Given the aforementioned information, the exposure likelihood,
frequency, and duration are so low that even though PCBs are considered
to be highly hazardous, any risk resulting from the combined exposure
and hazard potential is expected to be low to human health or the
environment.
    v. The potential for human health risks are further mitigated by
the limited duration of exposure. PCBs are most hazardous following
long-term (chronic) exposures. Under the transport scenario proposed,
any exposures to humans (i.e., accidental or emergency situation) would
be of very short duration. Hence, the low probability of exposure
occurring combined with the short-term duration of exposure, should one
occur, further supports a qualitative conclusion that there is no
unreasonable risk to human health.
    vi. The long-term concern is the potential for accumulation in the
ecological environment. Under a worst case scenario where all of the
PCBs were released due to an unforeseen and highly unlikely
catastrophic event during transport, PCB-exposed biological receptors
could be adversely affected. However, this scenario is highly unlikely
because it would require a complete failure of all safeguards that will
be in place. Furthermore, the alternative of storing the PCBs
indefinitely seems to pose more risk than transport. Moreover, should
an accident occur, emergency response authorities would be invoked to
mitigate and/or remediate exposures.
    2. Good faith efforts to find substitutes met. Section
6(e)(3)(B)(ii) of TSCA requires the Administrator to make an additional
finding, that ``good faith efforts have been made to develop a chemical
substance that does not present an unreasonable risk of injury to
health or the environment and which may be substituted for such
polychlorinated biphenyl.'' EPA has interpreted this provision to
require that a petitioner has the burden of demonstration that it has
made the requisite good faith efforts. (See 40 CFR 750.11.)
    EPA finds that DLA has demonstrated good faith efforts to find
alternatives to disposal of this PCB waste in the United States. EPA
acknowledges the restrictions to disposing of this waste in Japan. DLA
has also explored exporting this waste to other countries as an
alternative. However, DLA has indicated, and EPA acknowledges, the
peculiar circumstances of DOD's PCBs and PCB Items, which, while
present in

one country (i.e., Japan), are generated by another country's
government, leading to significant difficulty in providing Basel
Convention notification to third party countries. Given these
difficulties, EPA concurs with DLA's conclusion that disposal in a
third country (that is, countries other than Japan and the United
States) is not a viable alternative for this waste.
3. Benefits of Granting the Petition
    i. Avoiding the risks of long-term storage. EPA believes that
granting the petition to DLA to import 1,014,222 pounds of waste
contaminated with PCBs (94% of which is less than 50 ppm) will benefit
the United States and the environment in general. As DLA notes, the
continued long-term storage of PCB waste on U.S. military facilities in
Japan poses risks to U.S. personnel and the environment--risks that can
be eliminated through the action finalized in the petition.
    ii. Ensuring proper and safe disposal. Granting the petition allows
the United States to accept responsibility for the PCBs and PCB Items
it generates by assuring proper and safe disposal in domestic permitted
disposal facilities.
    iii. Ensuring the safety of Japanese citizens. EPA considers the
reduction of risk to Japanese citizens to be advantageous, especially
in light of the heightened concerns over PCBs in that country. Granting
the petition is the only practical mechanism to remove this waste from
Japan; otherwise, the U.S. military would be required to explain to its
Japanese hosts that it cannot remove its own toxic waste from their
country because U.S. law does not allow the waste to be sent to the
United States.
    For these reasons, EPA finds DLA has satisfied the exemption
criteria of TSCA section 6(e)(3)(B) and is granting the petition.

VI. References

    1. DOD, DLA. Petition from David Rodriguez, Director to EPA.
Subject: Petition to the United Sates Environmental Protection
Agency For an Exemption Under the Toxic Substances Control Act to
Import Polychlorinated Biphenyls (PCB) and PCB Items for Disposal.
April 23, 2013. 19 pp.
    2. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import)
Exemption. Final Rule. Federal Register (72 FR 53152, April 30,
2007) (FRL-8143-4). Available online at https://www.federalregister.gov/articles/2007/09/18/E7-18345/polychlorinated-biphenyls-manufacturing-import-exemption, Document
ID: EPA-HQ-OPPT-2005-0042-0008.
    3. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import)
Exemptions. Final Rule. Federal Register (68 FR 4934, January 31,
2003) (FRL-7288-6). Available online at http://www.federalregister.com/Browse/Document/usa/na/fr/2003/1/31/03-2344,
Document ID: EPA-HQ-OPPT-2002-0013-0041.
    4. EPA, OPPT. Disposal of Polychlorinated Biphenyls; Import for
Disposal. Final Rule. Federal Register (61 FR 11096, March 18, 1996)
(FRL-5354-8). Available online at http://www.epa.gov/fedrgstr/EPA-TOX/1996/March/Day-18/pr-24122.txt.html.
    5. EPA, OPPT. Polychlorinated Biphenyls (PCBs); Reassessment of
Use Authorizations. Advanced Notice of Proposed Rulemaking. Federal
Register (75 FR 17645, April 7, 2010) (FRL-8811-7). Available online
at http://www.regulations.gov, Document ID: EPA-HQ-OPPT-2009-0757-
0001.
    6. The U.S. Department of Agriculture, Public Health Service,
Agency for Toxic Substances and Disease Registry (ATSDR)
Toxicological Profile for Polychlorinated Biphenyls (PCBs) (November
2000). Available online at http://www.atsdr.cdc.gov/toxprofiles/tp17.pdf.

VII. Statutory and Executive Order Reviews

    As explained above, this action will only grant an exemption for
one year for the DLA to import PCB waste from military operations in
Japan. For that reason, this action:
     Is not a ``significant regulatory action'' under the terms
of Executive Order 12866 (58 FR 51735, October 4, 1993), and is
therefore not subject to review under Executive Orders 12866 and 13563
(76 FR 3821, January 21, 2011);
     does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     contains no Federal mandates under the provisions of Title
II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538),
for State, local, or tribal governments or the private sector and
contains no regulatory requirements that might significantly or
uniquely affect small governments;
     does not have Federalism implications as specified in
Executive Order 13132: Federalism (64 FR 43255, August 10, 1999);
     does not have tribal implications as specified by
Executive Order 13175: Consultation and Coordination with Indian Tribal
Governments (65 FR 67249, November 9, 2000), because, as the rule does
not make any substantive changes, it will not impose substantial direct
costs on tribal governments or preempt tribal law;
     is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045: Protection
of Children from Environmental Health and Safety Risks (62 FR 19885,
April 23, 1997);
     is not subject to Executive Order 13211 (66 FR 28355 (May
22, 2001)), because it is not a significant regulatory action under
Executive Order 12866;
     does not involve technical standards, thus the
requirements of Sec.  12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272) do not apply; and
     does not have disproportionately high and adverse human
health or environmental effects on minority or low-income populations
under Executive Order 12898: Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations (59 FR 7629,
February 16, 1994) because it does not affect the level of protection
provided to human health or the environment.

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business that is
primarily engaged in hazardous waste treatment and disposal as defined
by NAICS code 562211, with annual receipts of less than 12.5 million
dollars (based on Small Business Administration size standards); (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
    After considering the economic impacts of today's direct final rule
on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
This rule merely allows DOD to bring its PCB waste back to the U.S.
from Japan for proper disposal.

B. Congressional Review Act

    This action is subject to the Congressional Review Act, and EPA
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. Under the CRA, a ``major
rule'' cannot take effect until 60 days after it is published in the
Federal Register. 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, and Polychlorinated
biphenyls.

    Dated: March 25, 2014.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.

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

PART 761--[AMENDED]

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 E--[Amended]

0
2. Section 761.80 is amended by revising paragraph (j) to read as
follows:

Sec.  761.80  Manufacturing, processing and distribution in commerce
exemptions.

* * * * *
    (j) The Administrator grants the United States Defense Logistics
Agency's April 23, 2013 petition for an exemption for 1 year beginning
on July 1, 2014, to import up to 1,014,222 pounds of PCBs and PCB Items
stored or in use in Japan as identified in its petition for disposal.
* * * * *
[FR Doc. 2014-07393 Filed 4-1-14; 8:45 am]
BILLING CODE 6560-50-P