[Federal Register: April 1, 2008 (Volume 73, Number 63)]
[Rules and Regulations]
[Page 17252-17257]
[DOCID:fr01ap08-7]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[EPA-HQ-OAR-2005-0155; FRL-8547-4]
RIN 2060-AO52

National Perchloroethylene Air Emission Standards for Dry
Cleaning Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on amendments to the
national perchloroethylene air emission standards for dry cleaning
facilities promulgated on July 27, 2006, under the authority of section
112 of the Clean Air Act. This action amends rule language to correct
applicability cross references that were not correctly amended between
the most recent proposed and final rule revisions, and to clarify that
condenser performance monitoring may be done by either of two
prescribed methods (pressure or temperature), regardless of whether an
installed pressure gauge is present. Without these amendments, new area
sources could erroneously be required to perform monitoring that was
proposed for only major sources, and installed condenser performance
gauge readings could be required of sources when a prescribed
temperature method is just as valid for compliance purposes.

DATES: This rule is effective on July 15, 2008 without further notice,
unless EPA receives adverse comment by May 16, 2008. If EPA receives
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that some or all of the amendments in
this rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2005-0155 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
    2. E-mail<EMAIL_ADDRESS>and<EMAIL_ADDRESS>    3. Facsimile:<PHONE_NUMBER> and<PHONE_NUMBER>.
    4. Mail: U.S. Postal Service, send comments to: Air and Radiation
Docket, Environmental Protection Agency, Mailcode: 6102T, 1200
Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of
two copies.
    5. Hand Delivery: Deliver in person, or by courier deliveries to:
EPA Docket Center, Public Reading Room, EPA West, Room 3334, 1301
Constitution Ave., NW., Washington, DC 20460. Such deliveries are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
    We request that a separate copy also be sent to the contact person
listed below (see FOR FURTHER INFORMATION CONTACT).
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2005-0155. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail address will be 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
instructions on submitting comments, go to Unit III of the
SUPPLEMENTARY INFORMATION section of this document.
    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 National Emission
Standards for Hazardous Air Pollutants for Four Area Source Categories
Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is<PHONE_NUMBER>, and the telephone
number for the Air Docket is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Mr. Warren Johnson, Sector Policies
and Programs Division, Office of Air Quality Planning and Standards
(E143-03), Environmental Protection Agency, Research Triangle Park, NC
27711, telephone number<PHONE_NUMBER>, electronic mail address
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The information presented in this preamble
is organized as follows:

I. Why is EPA using a direct final rule?
II. Does this action apply to me?
III. What should I consider as I prepare my comments to EPA?
IV. Where can I get a copy of this document?
V. Why are we amending the rule?
VI. What amendments are we making to the rule?
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    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 and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
    K. Congressional Review Act

I. Why is EPA using a direct final rule?

    EPA is publishing the rule without a prior proposed rule because we
view this as a noncontroversial action and anticipate no adverse
comment. As explained below, this action amends rule language to
clarify that colorimetric monitoring requirements were not intended for
new dry cleaning machines

installed at area sources after December 21, 2005, and to clarify that
condenser performance monitoring may be done by either of the
prescribed methods (pressure or temperature), regardless of whether or
not an installed pressure gauge is present.
    Without these amendments, the rule can be interpreted as requiring:
    (1) New dry cleaning machines installed at area sources after
December 21, 2005, to perform colorimetric monitoring; and,
    (2) Sources with installed condenser performance gauges to take
readings, when a prescribed temperature method is just as valid for
compliance purposes.
    Either of these interpretations is problematic since neither was
reflected in the proposed rule (70 FR 75884), nor did our notice of
final rulemaking explain why or how the regulatory text changed from
proposal to final promulgation to include such requirements.
    However, in the ``Proposed Rules'' section of today's Federal
Register, we are publishing a separate document that will serve as the
proposed rule to amend the National Perchloroethylene Air Emission
Standards for Dry Cleaning Facilities (40 CFR part 63, subpart M) if
adverse comments are received on this direct final rule. If we receive
adverse comment, we will publish a timely withdrawal in the Federal
Register informing the public that some or all of the amendments in
this rule will not take effect, and we will address all public comments
received on the proposed rule in a subsequent final rule. We will not
institute a second comment period on the proposed rule. Any parties
interested in commenting on the proposed rule must do so at this time.
For further information about commenting on the rule, see the ADDRESSES
section of this document.

II. Does this action apply to me?

    The categories and entities potentially regulated by this direct
final rule are industrial and commercial perchloroethylene (PCE) dry
cleaners. The direct final rule affects the following categories of
sources:

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                   Category                    NAICS \1\ code     Examples of potentially  regulated entities
----------------------------------------------------------------------------------------------------------------
Coin-operated Laundries and Dry Cleaners.....          812310  Dry-to-dry machines.
                                                               Transfer machines.
Dry Cleaning and Laundry Services (except              812320  Dry-to-dry machines.
 coin-operated).                                               Transfer machines.
Industrial Launderers........................          812332  Dry-to-dry machines.
                                                               Transfer machines.
----------------------------------------------------------------------------------------------------------------
\1\ North American Industry Classification System.

III. What should I consider as I prepare my comments to EPA?

    Do not submit information containing CBI to EPA through
www.regulations.gov or e-mail. Send or deliver information identified
as CBI only to the following address: Roberto Morales, OAQPS Document
Control Officer (C404-02), Office of Air Quality Planning and
Standards, Environmental Protection Agency, Research Triangle Park,
North Carolina 27711, Attention: Docket ID No. EPA-HQ-OAR-2005-0155.
Clearly mark the part or all of the information that you claim to be
CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark
the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.

IV. Where can I get a copy of this document?

    In addition to being available in the docket, an electronic copy of
this final action will also be available on the Worldwide Web (WWW)
through the Technology Transfer Network (TTN). Following signature, a
copy of this final action will be posted on the TTN's policy and
guidance page for newly proposed or promulgated rules at the following
address: http://www.epa.gov/ttn/oarpg/. The TTN provides information
and technology exchange in various areas of air pollution control.

V. Why are we amending the rule?

    On September 22, 1993, EPA promulgated National Perchloroethylene
Air Emission Standards for Dry Cleaning Facilities (58 FR 49376). These
standards are codified at 40 CFR part 63, subpart M. On December 21,
2005, EPA proposed revisions to the National Perchloroethylene Air
Emission Standards for Dry Cleaning Facilities (70 FR 75884) which
included proposed provisions in 40 CFR 63.322(o)(2) that would have
required owners or operators of a dry cleaning system at any major
source to route the air-perchloroethylene gas-vapor stream contained
within each dry cleaning machine through a refrigerated condenser and a
carbon adsorber or equivalent control device immediately before or as
the door of the dry cleaning machine is opened. Proposed Sec.
63.322(o)(3) would have required owners and operators of dry cleaning
systems installed after December 21, 2005, at area sources to meet
similar requirements. In proposed Sec.  63.323(b) and (c), the
requirement to use a colorimetric detector tube or perchloroethylene
gas analyzer would have applied to carbon adsorbers used to comply with
proposed Sec.  63.323(o)(2) (i.e., at major sources), but not to those
used to comply with proposed Sec.  63.322(o)(3) (i.e., at dry cleaning
systems installed at area sources after December 21, 2005). In
addition, proposed Sec.  63.324(d)(6) would have imposed reporting and
recordkeeping requirements for monitoring results where carbon
adsorbers are used to meet proposed Sec.  63.322(o)(2), but not to meet
proposed Sec.  63.322(o)(3).
    In addition, proposed Sec.  63.322(o)(4) would have prohibited any
emissions of perchloroethylene during the transfer of articles between
the washer and the dryer(s) or reclaimer(s) of any dry cleaning system,
including at systems that are eligible for the limited exemptions from
other requirements under proposed revised Sec.  63.320(d) and (e).
    On July 27, 2006, EPA promulgated final revisions to the National
Perchloroethylene Air Emission Standards for Dry Cleaning Facilities
(71 FR 42724) and, in response to comments, removed the proposed
provisions in Sec.  63.322(o)(2) for owners or operators of a dry
cleaning system at any major source. The provisions in proposed Sec.
63.322(o)(3) for area source

systems installed after December 21, 2005, were then moved into Sec.
63.322(o)(2) as we renumbered the section paragraphs. However, we
failed to properly amend the cross references in Sec. Sec.  63.323(b)
and (c) and 63.324(d)(6) to Sec.  63.322(o)(2), and thus inadvertently
caused the colorimetric monitoring provisions and the recordkeeping and
reporting provisions proposed for major sources to appear to apply to
new systems installed after December 21, 2005, at area sources.
Moreover, the proposed prohibition on perchloroethylene emissions
during transfer moved from proposed Sec.  63.322(o)(4) to final Sec.
63.322(o)(3), and this renumbering of the paragraphs in Sec.  63.322(o)
was not tracked in the cross references in the final rule's
applicability and exemption Sec.  63.320(d) and (e). Hence, this direct
final action makes appropriate amendments to the cross references in
applicability Sec.  63.320(d) and (e), and removes the cross references
in Sec. Sec.  63.323(b) and (c) and 63.324(d)(6) to Sec.  63.322(o)(2).
    Without cross reference corrections to the final rule, the rule
cannot be implemented properly. For example, as a result of improper
applicability cross referencing, colorimetric monitoring requirements
would appear to be required of dry cleaning systems installed at area
sources after December 21, 2005. This was not our intent and was not
contained in the proposed rule. Neither is it supported by our impacts
analysis or by public comments received on the proposal, nor is it
explained or justified in the preamble or response to comments document
supporting the final rule. Moreover, without these corrections, sources
eligible for the limited exemptions under Sec.  63.320(d) and (e) would
appear to be also exempt from the universal prohibition proposed and
promulgated regarding perchloroethylene emissions during transfers,
even though this inadvertent change from the proposal was also not
supported by any explanation in our final rulemaking.
    In addition, while we did not propose changes to the test methods
and monitoring requirements of Sec.  63.323(a) in the December 21,
2005, proposal, we nonetheless amended this section in response to
comments. In doing so, we stated in the preamble to the final rule that
installed pressure gauge monitoring was a preferred method for
monitoring condenser performance, and amended Sec.  63.323(a) to
include these monitoring provisions. As written, however, Sec.
63.323(a) now states that only systems that are not equipped with
refrigeration system pressure gauges may exercise the option of
monitoring temperature, which has created a problem for operators whose
installed pressure gauges are not operating properly. While we still
believe that installed pressure gauges are a preferred monitoring
method for most cases, we also recognize that either method is
acceptable to demonstrate condenser compliance, regardless of whether
or not a particular system is equipped with refrigeration system
pressure gauges. This direct final action makes appropriate amendments
to Sec. Sec.  63.323(a) and 63.324(d) in order to allow owners or
operators to monitor either pressure or temperature to demonstrate
refrigerated condenser compliance, regardless of whether or not their
system is equipped with refrigeration system pressure gauges.
    Without amendments to the refrigerated condenser monitoring
provisions, the final rule implies that systems equipped with
refrigeration system pressure gauges would not have the option to
monitor temperature. This was not our intent.
    Finally, in Sec.  63.322(o)(5)(i) of the final rule we promulgated
a December 21, 2020, phase-out date for all PCE emissions from dry
cleaning systems located in a building with a residence. This phase-out
was intended to apply universally, without being subject to the limited
exemptions provided by Sec.  63.320(d), which grants limited relief for
existing dry-to-dry machines and ancillary equipment at facilities with
total annual PCE use of less than 530 liters (140 gallons). However, in
promulgating amendments to Sec.  63.320(d) in the final rule, we
inadvertently cross-referenced the promulgated immediate prohibition of
PCE emissions from new dry cleaning systems installed after December
21, 2005, in buildings with a residence, even though such new systems
are not addressed by Sec.  63.320(d). We are correcting this cross-
referencing error, as necessary to avoid appearing to subject existing
Sec.  63.320(d)-eligible sources located in buildings with a residence
to an immediate prohibition of PCE emissions, and to apply the same
December 21, 2020 phase-out date that applies to all other existing co-
residential sources.

VI. What amendments are we making to the rule?

    As currently written, 40 CFR 63.323(b) and (c) require owners or
operators of dry cleaning machines using carbon adsorbers to comply
with Sec. Sec.  63.322(a)(2), 63.322(b)(3) and 63.322(o)(2) to conduct
colorimetric monitoring. Prior to the July 27, 2006, revisions, these
requirements only applied, under Sec.  63.322(b)(3), to new dry
cleaning machines at a major sources installed after December 9, 1991,
equipped with a closed-loop system with a refrigerated condenser and a
carbon adsorber, and, under Sec.  63.322(a)(2), to existing dry
cleaning machines with a carbon adsorber installed as an alternative to
a refrigerated condenser prior to September 22, 1993. Following the
July 27, 2006 revisions, though, due to our inadvertent errors in
tracking cross-references as changes in the rule were made from the
proposed rule to the final rule revisions, it could be interpreted that
these requirements now apply to all new dry cleaning systems installed
after December 21, 2005, at area sources, which was neither proposed
nor the EPA's intent. To remedy this, we are removing the references in
Sec.  63.323(b) and (c) to Sec.  63.322(o)(2).
    In addition, due to the July 27, 2006, revisions to 40 CFR
63.323(a), one could interpret that using the monitoring method in 40
CFR 63.323(a)(2)(ii) is only an option when the dry cleaning machine is
not equipped with refrigeration system pressure gauges. Our intent was
to allow either the method in 40 CFR 63.323(a)(1)(i), which uses
pressure gauge readings, or in 40 CFR 63.323(a)(1)(ii), which uses
temperature sensors, at the owner/operator's discretion. We recognized
that the method in 40 CFR 63.323(a)(1)(i), which uses pressure gauge
readings, requires that a machine be equipped with refrigeration system
pressure gauges, but we did not intend that the presence or absence of
such gauges would dictate which of these two methods could be used for
compliance. To remedy this, we are amending 40 CFR 63.323(a) by
removing the phrase ``If the machine is not equipped with refrigeration
system pressure gauges'' as a condition for using the temperature
method in 40 CFR 63.323(a)(1)(ii). We are also amending the
recordkeeping requirements in 40 CFR 63.324(d), to reflect this 40 CFR
63.323(a) amendment, by replacing the phrase ``temperature sensor
monitoring results'' with ``monitoring results (temperature sensor or
pressure gauge).''
    Finally, in order to remedy applicability section tracking
inconsistency with the renumbering of paragraphs in Sec.  63.322
between the most recent proposed and final revisions, we are amending
the cross-references in the applicability Sec.  63.320(d) and (e) to
appropriately refer to Sec.  63.322(o)(3) where they currently refer to
Sec.  63.322(o)(4).

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the
terms of Executive Order (EO) 12866 (58 FR 51735, October 4, 1993) and
is therefore not subject to the review under the EO.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden.
The rule requires enhanced LDAR program that requires a handheld
portable monitor. Major source facilities will purchase a PCE gas
analyzer and area sources will purchase a halogenated hydrocarbon leak
detector. Owners and operators will incur the capital/startup cost of
purchasing the monitors, plus ongoing annual operation and maintenance
costs. No new information collection is required as part of these
amendments; owners and operators will continue to keep records and
submit required reports to EPA or the delegated State regulatory
authority required in the final rule. However, the Office of Management
and Budget (OMB) has previously approved the information collection
requirements contained in the existing regulations (40 CFR 63 subpart
M) under the provisions of the Paperwork Reduction Act 44 U.S.C. 3501
et seq. and has assigned OMB control number 2060-0234. The OMB control
number for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the Agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of the direct final rule on
small entities, a small entity is defined as:
    (1) A small business as defined by the Small Business
Administration's (SBA) regulations at 13 CFR 121.201;
    (2) a small governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of this rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This direct
final rule will not impose any new requirements on small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with federal mandates that may
result in expenditures to State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least-costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows the EPA to adopt an alternative other than the
least-costly, most cost effective, or least-burdensome alternative if
the Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    EPA has determined that this direct final rule does not contain a
federal mandate that may result in expenditures of $100 million or more
for state, local, and tribal governments, in the aggregate, or the
private sector in any one year. Therefore, the direct final rule is not
subject to the requirements of sections 202 and 205 of the UMRA. In
addition, EPA has determined that this direct final rule contains no
regulatory requirements that might significantly or uniquely affect
small governments because the burden is small and the regulation does
not apply to small governments. Therefore, this direct final rule is
not subject to the requirements of section 203 of the UMRA.

E. Executive Order 13132: Federalism

    Executive Order (EO) 13132 (64 FR 43255, August 10, 1999) requires
EPA to develop an accountable process to ensure ``meaningful and timely
input by state and local officials in the development of regulatory
policies that have Federalism implications.'' ``Policies that have
Federalism implications'' is defined in the EO to include regulations
that have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.''
    This direct final rule does not have federalism implications. It
will not have substantial direct effects on the states, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, as specified in EO 13132. Thus, EO 13132 does not apply to
this rule.

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

    Executive Order (EO) 13175 (65 FR 67249, November 9, 2000) requires
EPA to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' The direct final rule does not have
tribal implications, as specified in EO 13175. This rule will not have
substantial direct effects on tribal governments, on the relationship
between the Federal Government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified in EO 13175. Thus, EO 13175
does not apply to this direct final rule.

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

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the Order has
the potential to influence the regulation. This action is not subject

to EO 13045 because it is based solely on technology performance.

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

    This rule is not subject to Executive Order (EO) 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under EO 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note),
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
    EPA has determined that this direct final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low income populations because it does not
affect the level of protection provided to human health or the
environment. Moreover, the technical and editorial corrections in this
direct final rule do not change the level of control required by the
National Perchloroethylene Air Emission Standards for Dry Cleaning
Facilities.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each house of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this direct final
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of this direct final rule in the Federal Register.
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). This rule will be effective July 15, 2008.

List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Reporting and recordkeeping requirements.

    Dated: March 20, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I, part 63,
of the Code of Federal Regulations is amended as follows:

PART 63--[AMENDED]

0
1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

Subpart M--[Amended]

0
2. Section 63.320 is amended by revising paragraphs (d) and (e) to read
as follows:

Sec.  63.320  Applicability.

* * * * *
    (d) Each existing dry-to-dry machine and its ancillary equipment
located in a dry cleaning facility that includes only dry-to-dry
machines, and each existing transfer machine system and its ancillary
equipment, and each new transfer machine system and its ancillary
equipment installed between December 9, 1991, and September 22, 1993,
as well as each existing dry-to-dry machine and its ancillary
equipment, located in a dry cleaning facility that includes both
transfer machine system(s) and dry-to-dry machine(s) is exempt from
Sec. Sec.  63.322, 63.323, and 63.324, except Sec. Sec.  63.322(c),
(d), (i), (j), (k), (l), (m), (o)(1), (o)(3) and (o)(5)(i); 63.323(d);
and 63.324 (a), (b), (d)(1), (d)(2), (d)(3), (d)(4), and (e) if the
total PCE consumption of the dry cleaning facility is less than 530
liters (140 gallons) per year. Consumption is determined according to
Sec.  63.323(d).
    (e) Each existing transfer machine system and its ancillary
equipment, and each new transfer machine system and its ancillary
equipment installed between December 9, 1991, and September 22, 1993,
located in a dry cleaning facility that includes only transfer machine
system(s), is exempt from Sec. Sec.  63.322, 63.323, and 63.324, except
Sec. Sec.  63.322(c), (d), (i), (j), (k), (l), (m), (o)(1), and (o)(3);
63.323(d); and 63.324 (a), (b), (d)(1), (d)(2), (d)(3), (d)(4), and (e)
if the PCE consumption of the dry cleaning facility is less than 760
liters (200 gallons) per year. Consumption is determined according to
Sec.  63.323(d).
* * * * *

0
3. Section 63.323 is amended as follows:
0
a. By revising paragraphs (a)(1) introductory text and (a)(1)(ii).
0
b. By revising paragraph (b) introductory text.
0
c. By revising paragraph (c) introductory text.

Sec.  63.323  Test methods and monitoring.

    (a) * * *
    (1) The owner or operator shall monitor on a weekly basis the
parameters in either paragraph (a)(1)(i) or (ii) of this section.
* * * * *
    (ii) The temperature of the air-perchloroethylene gas-vapor stream
on the outlet side of the refrigerated condenser on a dry-to-dry
machine, dryer, or reclaimer with a temperature sensor to determine if
it is equal to or less than 7.2 [deg]C (45 [deg]F) before the end of
the cool-down or drying cycle while the gas-vapor stream is flowing
through the condenser. The temperature sensor shall be used according
to the manufacturer's instructions and shall be designed to measure a
temperature of 7.2 [deg]C (45 [deg]F) to an accuracy of 1.1
[deg]C (2 [deg]F).
* * * * *
    (b) When a carbon adsorber is used to comply with Sec.
63.322(a)(2) or exhaust is passed through a carbon adsorber immediately
upon machine door opening to comply with Sec.  63.322(b)(3), the owner
or operator shall measure the concentration of PCE in the exhaust of

the carbon adsorber weekly with a colorimetric detector tube or PCE gas
analyzer. The measurement shall be taken while the dry cleaning machine
is venting to that carbon adsorber at the end of the last dry cleaning
cycle prior to desorption of that carbon adsorber or removal of the
activated carbon to determine that the PCE concentration in the exhaust
is equal to or less than 100 parts per million by volume. The owner or
operator shall:
* * * * *
    (c) If the air-PCE gas vapor stream is passed through a carbon
adsorber prior to machine door opening to comply with Sec.
63.322(b)(3), the owner or operator of an affected facility shall
measure the concentration of PCE in the dry cleaning machine drum at
the end of the dry cleaning cycle weekly with a colorimetric detector
tube or PCE gas analyzer to determine that the PCE concentration is
equal to or less than 300 parts per million by volume. The owner or
operator shall:
* * * * *

0
4. Section 63.324 is amended by revising paragraphs (d)(5), and (d)(6)
to read as follows:

Sec.  63.324  Reporting and recordkeeping requirements.

* * * * *
    (d) * * *
    (5) The date and monitoring results (temperature sensor or pressure
gauge), as specified in Sec.  63.323 if a refrigerated condenser is
used to comply with Sec.  63.322(a), (b), or (o); and
    (6) The date and monitoring results, as specified in Sec.  63.323,
if a carbon adsorber is used to comply with Sec.  63.322(a)(2), or
(b)(3).
* * * * *

 [FR Doc. E8-6544 Filed 3-31-08; 8:45 am]

BILLING CODE 6560-50-P


Date:
June 24, 2013
Subject:
Analysis of Default Biogenic CO2 Fraction for Municipal Solid Waste (MSW)
EPA Contract No. EP-W-11-054; Task Order No. 04

From:
RTI International

To:
Mike Hannan
U.S. Environmental Protection Agency
Washington, DC 20460

   I. Introduction
      Several commenters disagreed with EPA's recent proposal to reduce the default municipal solid waste (MSW) biogenic CO2 fraction to 0.55 and requested that EPA use the actual MSW fractions reported by all municipal waste combustors (MWCs) for the first three years of the GHGRP (2010-2012) to determine an appropriate default. EPA performed an analysis of all quarterly MSW biogenic CO2 fractions (determined using ASTM D7459-08 and ASTM D6866-08) submitted through the GHGRP in reporting years 2010 through 2012.

   II. Summary of Analysis and Findings
      The initial data set for Subpart C was reviewed to identify all units that combusted MSW from 2010 to 2012.  The quarterly MSW biogenic CO2 fractions were then averaged for each MWC to determine each unit's annual average MSW biogenic CO2 fraction. Weighted averages (based on the reported unit level biogenic CO2 emissions) and straight averages were then determined for all MWC for each year and for the entire three year period for which data is available.
      Substitute data was used for units that did not report biogenic fractions (as required by rule), but did report emissions from the combustion of MSW.  In this event, biogenic fractions from the same unit, but a different year were substituted (e.g., Unit A reported biogenic fractions for 2012, but not 2011.  2012 fractions were substituted for Unit A in 2011). RY 2012 is the first year that reporting of quarterly MSW biogenic CO2 fractions is required. Retroactive submittals for RY 2010 and 2011 are also required.  Verification of the MSW fraction data is currently on-going. Table 1 summarizes the results of this analysis.

    Table 1  -  Summary of Findings from MSW Biogenic CO2 Fraction Analysis
Parameter
                                     2010
                                     2011
                                     2012
                                   2010-2012
Total Units in Analysis
                                                                            133
                                                                            139
                                                                            144
                                                                            416
Number of Substitute Units
                                                                              2
                                                                              5
                                                                              2
                                                                              9
Percent Substituted
                                                                           1.5%
                                                                           3.6%
                                                                           1.4%
                                                                           2.2%
Minimum Biogenic Fraction
                                                                           0.52
                                                                           0.38
                                                                           0.52
                                                                           0.38
Maximum Biogenic Fraction
                                                                           0.87
                                                                           0.79
                                                                           0.72
                                                                           0.87
Weighted Average Fraction
                                                                           0.64
                                                                           0.62
                                                                           0.61
                                                                           0.62
Average Fraction
                                                                           0.64
                                                                           0.62
                                                                           0.61
                                                                           0.62


[Federal Register: September 18, 2007 (Volume 72, Number 180)]
[Rules and Regulations]
[Page 53152-53158]
[DOCID:fr18se07-16]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 761

[EPA-HQ-OPPT-2005-0042; FRL-8143-4]
RIN 2070-AB20

Polychlorinated Biphenyls; Manufacturing (Import) Exemption

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: With certain exceptions, section 6(e)(3) of the Toxic
Substances Control Act (TSCA) bans the manufacture, processing, and
distribution in commerce of polychlorinated biphenyls (PCBs). For
purposes of TSCA, ``manufacture'' is defined to include import into the
Customs Territory of the United States. One of these exceptions is TSCA
section 6(e)(3)(B), which gives EPA authority to grant petitions to
perform these activities for a period of up to 12 months, provided EPA
can make certain findings by rule. On July 21, 2005, the United States
Defense Logistics Agency (DLA), a component of the United States
Department of Defense (DOD), submitted a petition to EPA to import
foreign-manufactured PCBs that DOD currently owns in Japan for disposal
in the United States. In this document, EPA is granting DLA's petition.
This decision to grant the petition allows DLA to manufacture (i.e.,
import) certain PCBs for disposal.

DATES: This final rule is effective January 7, 2008.

ADDRESSES: EPA has established a docket for this action under docket
identification (ID) number EPA-HQ-OPPT-2005-0042. All documents in the
docket are listed in the docket index available in regulations.gov. To
access the electronic docket, go to http://www.regulations.gov, select

``Advanced Search,'' then ``Docket Search.'' Insert the docket ID
number where indicated and select the ``Submit'' button. Follow the
instructions on the regulations.gov website to view the docket index or
access available documents. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (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 electronically at http://www.regulations.gov,

or, if only available in hard copy, at the OPPT Docket. The OPPT Docket
is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West
Bldg., 1301 Constitution Ave., NW., Washington, DC. The EPA/DC Public
Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding Federal holidays. The telephone number of the
EPA/DC Public Reading Room is<PHONE_NUMBER>, and the telephone number
for the OPPT Docket is<PHONE_NUMBER>. Docket visitors are required to
show photographic identification, pass through a metal detector, and
sign the EPA visitor log. All visitor bags are processed through an X-
ray machine and subject to search. Visitors will be provided an EPA/DC
badge that must be visible at all times in the building and returned
upon departure.

FOR FURTHER INFORMATION CONTACT: For general information contact: Colby
Lintner, Regulatory Coordinator, Environmental Assistance Division
(7408M), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number:<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>
    For technical information contact: Tom Simons, National Program
Chemicals Division (7404T), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Does this Action Apply to Me?

    This action primarily applies to the petitioner, the DLA. However,
you may be potentially affected by this action if you process,
distribute in commerce, or dispose of PCB waste generated by others,
i.e., you are an EPA-permitted PCB waste handler. Potentially affected
categories and entities include, but are not necessarily limited to:
     Waste treatment and disposal (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., the DLA).
    This listing is not intended to be exhaustive, but rather provides
a guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in this unit could also be
affected. The North American Industrial Classification System (NAICS)
codes have been provided to assist you and others in determining
whether this action might apply to certain entities. To determine
whether you or your business may be affected by this action, you should
carefully examine the applicability provisions in 40 CFR part 761. If
you have any questions regarding the applicability of this action to a
particular entity, consult the technical person listed under FOR
FURTHER INFORMATION CONTACT.

II. Background

A. What Action is the Agency Taking?

    In the Federal Register of April 30, 2007 (Ref. 1), the Agency
proposed to grant DLA's petition to import PCB waste for disposal. The
Agency received no comments on that proposal. In this final rule, the
Agency is granting a petition submitted by DLA to import PCB waste for
disposal. In the absence of an exemption, import of this waste would be
banned by section 6(e)(3) of TSCA. The petition, dated July 21, 2005,
is for an exemption to import certain foreign-generated PCBs owned by
DOD that are currently in use or storage in Japan. (The term ``foreign-
generated PCBs'' is used to identify those PCBs that DOD acquired from
foreign sources and that are subject to the TSCA ban on import.)
    On April 16, 2001, DLA submitted a similar petition to import over
four million pounds of foreign-generated PCB waste. EPA granted that
petition in a final rule document published in the Federal Register of
January 31, 2003 (Ref. 2).

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

    Section 6(e) of TSCA, 15 U.S.C. 2605(e), generally prohibits the
manufacture (which includes import) of PCBs after January 1, 1979, the
processing and distribution in commerce of PCBs after July 1, 1979, and
most uses of PCBs after October 11, 1977. Section 6(e)(3)(A) of TSCA
prohibits the manufacture, processing, and distribution in commerce of
PCBs except for the distribution in commerce of PCBs that were sold for
purposes other than resale before July 1, 1979. Section 6(e)(1) of TSCA
also authorizes EPA to regulate the disposal of PCBs consistent with
the provisions in TSCA section 6(e)(2) and (3).

    Section 6(e)(3)(B) of TSCA provides that any person may petition
the Administrator for an exemption from the prohibition on the
manufacture, processing, and distribution in commerce of PCBs. The
Administrator may by rule grant an exemption if the Administrator finds
that:

     i. an unreasonable risk of injury to health or the environment
would not result, and ii. good faith efforts have been made to
develop a chemical substance which does not present an unreasonable
risk of injury to health or the environment and which may be
substituted for such polychlorinated biphenyl. (15 U.S.C.
2605(e)(3)(B)(i)-(ii)).

The Administrator may prescribe terms and conditions for an exemption
and may grant an exemption for a period of not more than 1 year from
the date the petition is granted. In addition, TSCA section 6(e)(4)
requires that a rule under TSCA section 6(e)(3)(B) be promulgated in
accordance with TSCA section 6(c)(2), (3), and (4), which provide for a
proposed rule, the opportunity for an informal public hearing, and a
final rule.
    EPA's procedures for rulemaking under TSCA section 6 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 EPA
follows in rulemaking on these petitions. These rules are codified at
40 CFR 750.10 through 750.21.

III. Findings Necessary to Grant Petitions

A. No Unreasonable Risk Finding

    Before granting an exemption petition, TSCA section 6(e)(3)(B)(i)
requires the Administrator to find that granting an exemption would not
result in an unreasonable risk of injury to health or the environment
in the United States. EPA has interpreted this provision to require a
petitioner to demonstrate 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 the environment against
the benefits to society from granting or denying each petition. See
generally, 15 U.S.C. 2605(c)(1). Specifically, EPA considers the
following factors:
    1. Effects of PCBs on human health and the environment. In deciding
whether to grant an exemption, EPA considers the magnitude of exposure
and the effects of PCBs on humans and the environment. The following
discussion summarizes EPA's assessment of these factors. A more
complete discussion of these factors is provided in the preamble to the
1988 PCB proposed rule document published in the Federal Register of
August 24, 1988 (Ref. 3).
    i. Health effects. EPA has determined that PCBs cause significant
human health effects including cancer, immune system suppression, liver
damage, skin irritation, and endocrine disruption. PCBs exhibit
neurotoxicity as well as reproductive and developmental toxicity. PCBs
are readily absorbed through the skin and are absorbed at even faster
rates when inhaled. Because PCBs are stored in animal fatty tissue,
humans are also exposed to PCBs through ingestion of animal products.
    ii. Environmental effects. Certain PCB congeners are among the most
stable chemicals known, and decompose very slowly once they are
released in 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.
    iii. Risks. Toxicity and exposure are the two basic components of
risk. EPA has concluded that any exposure of humans or the environment
to PCBs may be significant, depending on such factors as the quantity
of PCBs involved in the exposure, the likelihood of exposure to humans
and the environment, and the effect of exposure. Minimizing exposure to
PCBs should minimize any eventual risk. EPA has previously determined
that some activities, including the disposal of PCBs in accordance with
40 CFR part 761, pose no unreasonable risks. Other activities, such as
long-term storage of PCB waste, are generally considered by EPA to pose
unreasonable risks.
    2. Benefits and costs. The benefits to society of granting an
exemption vary, depending on the activity for which the exemption is
requested. The reasonably ascertainable costs of denying an exemption
vary, depending on the individual petition. As discussed in Unit IV.,
EPA has taken benefits and costs into consideration when evaluating
this exemption petition.

B. Good Faith Efforts Finding

    Section 6(e)(3)(B)(ii) of TSCA also requires the Administrator to
find that ``good faith efforts have been made to develop a chemical
substance which does not present an unreasonable risk of injury to
health or the environment and which may be substituted for [PCBs].''
EPA has interpreted this provision to require that a petitioner has the
burden of demonstrating that it has made the requisite good faith
efforts. (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 expended time and effort to develop or search
for a substitute. In each case, the burden is on the petitioner to show
specifically what they did 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 activity must occur
in the United States and what steps will be taken to eliminate the need
to import PCBs in the future. While requiring a petitioner to
demonstrate that good faith efforts to develop a substitute for PCBs
makes sense when dealing with traditional manufacture and distribution
exemption petitions, 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 waste generated by DOD overseas. EPA believes the more
relevant ``good faith'' issue for such an exemption request is whether
the disposal of the waste could and/or should occur outside the United
States.

IV. Final Disposition of This Exemption Petition

A. The Petition: July 21, 2005 Petition to Import PCBs Located in Japan

    On July 21, 2005, DLA submitted a petition seeking a 1-year
exemption to import PCBs and PCB items currently in temporary storage
at U.S. military installations in Japan. In revised figures provided in
November 2006 (Ref. 5), DLA estimates that as much as 1,328,482 pounds
of waste contaminated with PCBs could be generated in Japan through the
calendar year 2008. The material in Japan consists of liquids,
electrical transformers, capacitors, switches, circuit breakers, other
miscellaneous items and debris (rags, gaskets, and personal protective
equipment). PCB concentrations of the waste include amounts in all
regulatory concentrations (i.e., 50 parts per million (ppm), 50-499

ppm, and >500 ppm); however, 88% of the waste is at concentrations
below 50 ppm PCB and less than 5% of the total shipment is liquid PCBs
greater than 50 ppm. Details of the particular amounts and
concentrations DLA petitioned to import are provided in Refs. 4 and 5.
    DLA will package and transport, treat and dispose of this PCB waste
in the same manner as waste identified in its previous petitions (Ref.
2), which EPA granted in 2003 to allow the import of over 4,000,000
pounds of waste contaminated with PCBs; DLA notes that compliance is
required with the International Maritime Dangerous Goods Code/
International Maritime Organization, the International Civil Aviation
Organization Technical Instructions, the International Air Transport
Association Dangerous Goods Code, the United Nations Recommendations on
the Transport of Dangerous Goods Code, and 49 CFR parts 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 states that it will handle and dispose of all PCBs in
conformance with the PCB regulations at 40 CFR part 761. DLA notes that
it has ``considerable experience and expertise in awarding and
administering disposal contracts for PCB waste in the U.S.'' and that
it will only ``award contracts for treatment and disposal services with
commercial firms. Contracts will be awarded in accordance with all
applicable federal procurement statutes and the Federal Acquisition
Regulations (FAR).'' On October 12, 2005, DLA selected Clean Harbors
Environmental Services (CHES) in Coffeyville, Kansas to dispose of the
PCB waste to be removed from Japan. CHES has disposed of PCBs returning
from Japan at the Coffeyville Disposal Facility on four separate
occasions since 2003 without incident. In addition, DLA will use
shippers approved by the United States Department of Transportation
(DOT) when the waste materials are transported from the California port
to the Coffeyville Disposal Facility. The surface commercial transport
trucks and the sea vessels themselves are approved and contracted for
use by the DOD Surface Deployment and Distribution Command.
    1. Information regarding no unreasonable risk provided by the
petitioner. DLA notes that the materials in question will be managed in
accordance with all applicable laws and regulations. Once in the United
States, the PCB waste will be transported, handled, treated, and
disposed of in compliance with the PCB regulations at 40 CFR part 761.
DLA states that it will only contract with companies with the required
Federal and State-permitted storage, treatment, and disposal facilities
for dealing with PCBs and PCB items. DLA notes that it and its
contractors ``have extensive experience in safely returning U.S.-
manufactured PCBs and PCB items to the U.S. for disposal,'' and that
``prior to safely returning and disposing of 2.7 million pounds of
foreign-generated PCB containing waste under the previously granted
exemption, DLA returned 2.4 million pounds of U.S.-manufactured PCBs
and PCB Items from Japan since 1991 for compliant disposal without
incident.''
    In contrast, DLA notes that the continued storage of PCBs at U.S.
facilities in Japan is problematic. DOD currently has a considerable
amount of PCB waste in storage at its facilities in Japan, and more
will accumulate over the coming years as equipment is retired from use
and contaminated sites are cleaned up. DLA notes that due to the
unavailability of disposal capacity in Japan, much of DLA's foreign-
manufactured PCB waste inventory in Japan has been in storage for years
and movement of PCB waste presently in storage is frequently necessary
to accommodate additional PCBs taken out of service. DLA summarizes the
risks of this situation as follows:

    Continued accumulation over extended time periods increases the
risk of exposure to U.S. military personnel, to people living in and
around the U.S. installations where the PCBs are stored, and to the
environment should releases occur due to human error, or unforeseen
severe weather, or seismic events. In addition, storage containers
will deteriorate with time, increasing the likelihood that personnel
who must monitor such items and repack them if they suspect leakage
are exposed to the PCBs. Long-term storage may increase the DOD's
liability for cleanup costs if spills occur. This would increase
exposure to U.S. personnel and local citizens and could potentially
result in ground and water contamination. Each time an item is
handled, another opportunity for a spill or exposure is created. The
storage situation is exacerbated in Japan because the installations
where these materials are located are relatively small, storage
space is at a premium, and the surrounding civilian communities are
located in very close proximity to the stored PCBs. Moreover, the
situation for the DOD is further complicated because of the
perceptions of the local communities regarding PCBs.

DLA further notes that EPA expressed concerns about long-term storage
in the PCB Import for Disposal Rule (Ref. 6):

    EPA believes that PCB wastes which are not disposed of for
extended periods of time or which are not disposed of in facilities
providing equivalent protection from release to the environment may
pose an unreasonable risk of injury to health and the environment.
(61 FR 11096)

The same rule also underscored the benefit of prompt disposal in the
United States (Ref. 6):

    Based on the persistence of PCBs in the global environment and
EPA's finding that any exposure to human beings or the environment
may be significant, EPA believes that the safe disposal of PCBs in
approved U.S. facilities poses less risk of injury to health or the
environment in the United States than the continued presence of PCBs
in other countries, since proper disposal in this country provides
protection against possible hazards from improper disposal
elsewhere. (61 FR 11096)

Beyond the immediate environmental risk, DLA describes other benefits
to the United States that it believes would result from the granting of
its petition:

    In 1968, a tragic human poisoning episode in Western Japan
affected over 1,000 people causing 22 deaths. The ``Yusho'' or
``rice oil disease'' was attributed to the consumption of rice bran
oil contaminated with PCBs and served as a catalyst for current PCB
prohibitions such as those imposed by TSCA, the Stockholm
Convention, and Japanese domestic law. As a result of this highly
publicized incident, Japanese citizens exhibit particular
sensitivity to PCB issues. Delicate U.S.-Japan relations over the
presence and operation of U.S. military installations could be
adversely affected by denial of this petition.
    The presence of PCBs on U.S. military bases in Japan has in the
past attracted significant adverse attention from Japanese
politicians, the Japanese press, Japanese environmental groups, and
local citizens. There has been constant local surveillance of U.S.
military PCB storage in Sagamihara and demands for inspections and
sampling for PCBs since at least 1992, when a member of Congress
released a report outlining the storage and presence of PCBs and
other hazardous materials on U.S. bases in Japan. Any perception
that the United States would return to stockpiling and long term
storage of these materials invites unwarranted claims that the U.S.
military is neglecting its environmental responsibilities.

DLA concludes:

    Allowing PCB material to remain in storage indefinitely may lead
to degradation of storage containers and releases of PCBs into the
environment from the materials located at temporary or permanent
storage facilities. PCBs released into the environment as a result
of disasters, accidents, container degradation or other events can
present significant exposure risks. This material is currently
stored, or will need to be stored, on crowded DOD facilities in
close proximity to where U.S. military and civilian personnel and
the local community live and work. Since there are no permitted PCB
disposal facilities available to U.S. forces in Japan, and because
of the unique environmental

conditions in Japan, as noted above, the potential for PCB
contamination via leaks from aging containers or accidental spills
is higher at these locations than at EPA- permitted disposal
facilities in the DOD civilian employees, U.S. military personnel,
and contractors employed by the U.S. Government are at greatest
risk.

    2. Information regarding good faith efforts provided by the
petitioner. DLA argues in its petition that disposal of its PCBs in
Japan is not an available disposal option:

    As DLA noted in its previous exemption requests, there are
significant impediments to disposal on DOD military installations in
Japan. To be properly processed, PCB materials should be separated
into three streams: 1) metallic components to be decontaminated and
recycled; 2) used oils to be treated/dechlorinated and recycled or
burned for energy recovery; and 3) non-recyclable material to be
treated and disposed of as residual solid wastes. Although certain
portable treatment technologies are becoming available in Japan, the
domestic regulatory standards are very stringent and would require
PCB decontamination levels to be less than 0.5 ppm without dilution
to qualify an item as being non PCB. 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 at
any detectable concentration including concentrations below the very
stringent 0.5 ppm level at which Japan regulates domestic PCBs. DLA
is not aware of any available technologies that are permitted in
Japan that would treat all PCBs items to the level that PCBs are
completely removed or that could be acquired at a cost that is
economically feasible. Moreover, if such technology were to become
available, it would not resolve the issue of the residual ``non-
recyclable'' waste that would remain or result from the treatment
process. There are no permitted commercial disposal facilities
currently available to the U.S. military for PCB disposal in Japan;
hence, treatment outside of Japan would still be required for the
residual wastes resulting from any ``on-installation'' treatment
process.

DLA further argues 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 PCB waste generated by DOD overseas. In particular,
DLA discusses the difficulty of shipping waste from Japan to other
countries posed by the Basel Convention:

    Prior to submitting its previous request to EPA for an exemption
from the TSCA PCB import ban, DLA and its primary disposal
contractor made contacts over a period of several years with
Japanese officials and with disposal facilities located outside the
U.S. in an effort to identify firms that could dispose of waste PCB
items overseas while satisfying Basel Convention requirements. The
DOD also consulted with State Department officials in Japan and the
U. S. whose responsibilities included international environmental
matters. These consultations resulted in a consensus that use of
existing facilities in other developed countries was not a
reasonable alternative. Even if other countries would accept these
wastes, non-governmental organizations could be expected to oppose
disposal of its U.S. waste in third countries, principally because
the U. S. already has the technical capability to dispose of PCBs.

DLA concludes that it has made every reasonable effort to locate
appropriate disposal sites outside the United States and that it has
accordingly satisfied the good faith efforts criteria necessary for an
exemption.

B. EPA's Final Decision on the Petition: July 21, 2005 Petition; EPA is
Granting this Petition

    1. No unreasonable risk determination. EPA finds generally that the
disposal of imported PCB waste at an EPA-approved PCB disposal facility
poses no unreasonable risks as these facilities have been approved on
the basis of that standard. In addition, the risks to human health and
the environment associated with long-term storage of this waste far
outweigh the risks associated with the transportation of this waste
from Japan to an approved disposal facility in the United States.
    As with the previous petition, 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. EPA
permits the domestic processing and distribution in commerce of PCBs
and PCB items for disposal in compliance with 40 CFR part 761, and in
issuance of the PCB Import for Disposal Rule EPA investigated and
sought comment on the risks inherent in transportation of imported PCB
waste, and determined those risks to be insignificant (Ref. 6). For the
following reasons, EPA finds that there is no unreasonable risk from
the transport of this waste to the United States for disposal:
    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, the likelihood of exposure to PCBs is
commensurately low. Consequently, the risk of adverse effects to human
health or the environment is minimal.
    iii. The PCB-containing materials will be packaged in a manner
consistent with Federal, State, and local regulations addressing the
storage and transport of hazardous materials. 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 are not
combustible, 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, risk (combined exposure and hazard) will not be
unreasonable to human health or the environment.
    v. The potential for human health risks are further mitigated by
duration of exposure. PCBs are most hazardous following long-term
(chronic) exposures. Under the transport scenario proposed, any
exposures to humans (i.e., accidental or emergency situation) will 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. The DLA analyses indicate that there would be a low
probability of a complete failure. The alternative of storing the PCBs
indefinitely seems to pose more risk than transport. Further, should an
accident occur, emergency response authorities at least within U.S.
waters, 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 believes that DLA has demonstrated good faith efforts to find
alternatives to disposal of this PCB waste in the United States. EPA is
aware of the lack of adequate PCB disposal capacity in Japan. DLA has
explored exporting this waste to other countries as an alternative but
since this is waste owned by the United States, the waste may not be
shipped to other countries in the area because the United States is not
a party to the Basel Convention and does not have bilateral agreements
with countries in the area. EPA also acknowledges the peculiar
circumstances of DOD's PCBs, which, while present in one country, are
owned by another country's government, leading to significant
difficulty in providing Basel Convention notification to third
countries. Given these difficulties, EPA concurs with DLA's conclusion
that disposal in a third country 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 import
1,328,482 pounds of waste contaminated with PCBs (88% is less than 50
ppm and less than 5% is liquid PCBs greater than 50 ppm) will benefit
the United States and the environment in general in several ways. As
DLA notes, the continued long-term storage of PCB waste on U.S.
military facilities in Japan poses risks of exposure 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 toxic waste 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 and the
sensitivities surrounding the U.S. military's presence in Japan.
Granting the petition is the only practical mechanism to remove this
waste from Japan. Otherwise the U.S. military is in the awkward
position of explaining 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.

V. References

    1. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import)
Exemption. Proposed Rule. Federal Register (72 FR 21190, April 30,
2007) (FRL-8120-6). Available on-line at http://www.epa.gov/fedrgstr.

    2. EPA, OPPT. Polychlorinated Biphenyls; Manufacturing (Import)
Exemptions. Final Rule. OPPT-2002-0013. Federal Register (68 FR 4934,
January 31, 2003) (FRL-7288-6). Available on-line at http://www.epa.gov/fedrgstr
.

    3. EPA, Office of Toxic Substances (OTS). Polychlorinated
Biphenyls; Manufacturing, Processing, Distribution in Commerce
Exemptions. Proposed Rule. OPTS-66008F. Federal Register (53 FR 32326,
August 24, 1988).
    4. DOD, DLA. Petition from Keith W. Lippert, Vice Admiral, SC, USN,
Director to Stephen L. Johnson, Administrator, EPA. Subject: Petition
to the Administrator, United Sates Environmental Protection Agency, For
an Exemption Under the Toxic Substances Control Act to Import
Polychlorinated Biphenyls (PCB) and PCB Items for Disposal. July 21,
2005. 13 pp. with attachments.
    5. DOD, DLA. Electronic mail dated November 2, 2006 from Miriam
Alonso, Hazardous Programs, to Tom Simons, National Program Chemicals
Division, OPPT, EPA. Subject: Updated Petition Data for EPA for
petition submitted July 21, 2005. 2 pp.
    6. EPA, OPPT. Disposal of Polychlorinated Biphenyls; Import for
Disposal. Final Rule. Federal Register (61 FR 11096, March 18, 1996)
(FRL-5354-8). Available on-line at http://www.epa.gov/fedrgstr.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), this action is not a
``significant regulatory action'' subject to review by the Office of
Management and Budget (OMB), because this action is not likely to
result in a rule that meets any of the criteria for a ``significant
regulatory action'' provided in section 3(f) of the Executive Order.

B. Paperwork Reduction Act

    Pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et
seq., an agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless it displays
a currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.
    This final rule would not impose any new information collection
burden. EPA is proposing to grant the petition by DLA to import PCBs
for disposal. DLA is now subject to the existing EPA regulations
regarding the disposal of PCBs in 40 CFR part 761. OMB has previously
approved the information collection requirements contained in 40 CFR
part 761 under the provisions of PRA, 44 U.S.C. 3501 et seq., and has
assigned OMB control numbers 2070-0003 (EPA ICR No. 1000.06), 2070-0008
(EPA ICR No. 1001.06), 2070-0011 (EPA ICR No. 1012.06), 2070-0021 (EPA
ICR No. 0857.07), 2070-0112 (EPA ICR No. 1446.06), and 2070-0159 (EPA
ICR No. 1729.02). Copies of these ICR documents may be obtained by mail
at the Office of Environmental Information, Collection Strategies
Division (2822), Environmental Protection Agency, 1200 Pennsylvania
Ave., NW., Washington, DC 20460-0001, by e-mail at<EMAIL_ADDRESS>or by calling<PHONE_NUMBER>. Copies may also be downloaded from the
Internet at http://www.epa.gov/icr. Include the ICR and/or OMB numbers

in any correspondence.
    As defined by PRA and 5 CFR 1230.3(b), ``burden'' means the total
time, effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small
Business

Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq., 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
government jurisdictions.
    For purposes of assessing the impacts of this final rule on small
entities, small entity is defined as:
    1. A small business that meets the Small Business Administration
size standards codified at 13 CFR 121.201.
    2. A small governmental jurisdiction that is a government of a
city, county, town, school district, or special district with a
population of less than 50,000.
    3. A small organization that is any not-for-profit enterprise that
is independently owned and operated and is not dominant in its field.
    After considering the impacts of this final rule on small entities,
EPA certifies that this action will not have a significant economic
impact on a substantial number of small entities. This final rule will
not impose any requirements on small entities. EPA is granting this
petition by DLA to import PCBs for disposal. Only DLA, which is not a
small entity, is regulated by this final rule.

D. Unfunded Mandates Reform Act

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995,
(UMRA), Public Law 104-4, EPA has determined that this final rule does
not contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any one year. EPA is granting a
petition by DLA to import PCBs for disposal. DLA is required to comply
with the existing regulations on PCB disposal at 40 CFR part 761. The
only mandate that is imposed by this final rule is imposed on DLA. In
addition, EPA has determined that this final rule would not
significantly or uniquely affect small governments. The DLA petition
states that the PCBs will be disposed of in PCB-approved facilities. No
new facilities, which could affect small government resources if a
permit is required, are contemplated. EPA believes that the disposal of
PCBs in previously approved facilities in the amounts specified in this
final rule would have little, if any, impact on small governments.
Thus, this final rule is not subject to the requirements of UMRA
sections 202, 203, 204, or 205.

E. Executive Order 13132: Federalism

    This action will not have a substantial direct effect on States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government, as specified in Executive Order 13132, entitled
Federalism (64 FR 43255, August 10, 1999).

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

    Executive Order 13175, entitled Consultation and Coordination with
Indian Tribal Governments (65 FR 67249, November 9, 2000), requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' This final rule does not have tribal
implications, as specified in Executive Order 13175. EPA's final rule
grants a petition from DLA to import PCBs and dispose of them in PCB-
approved disposal facilities in accordance with existing regulations.
EPA does not believe that this activity will have any impacts on the
communities of Indian tribal governments. Thus, Executive Order 13175
does not apply to this final rule.

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

    Executive Order 13045, entitled Protection of Children from
Environmental Health Risks and Safety Risks (62 FR 19885, April 23,
1997), applies to any rule that:
    1. Is determined to be ``economically significant'' as defined
under Executive Order 12866.
    2. Concerns an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children. If
the regulatory action meets both criteria, the Agency must evaluate the
environmental health or safety effects of the planned rule on children,
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency.
    This final rule is not subject to the Executive order because it is
not economically significant as defined in Executive Order 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this action present a
disproportionate risk to children. EPA is granting the petition from
DLA to import PCBs and dispose of them in approved PCB disposal
facilities in accordance with existing regulations. EPA believes that
the import and disposal of the amount of PCBs specified in the
exemption petitions will present little, if any, additional risk to
persons living in the vicinity of the approved disposal facilities or
in the communities through which the PCBs may be transported.

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

    This final rule is not subject to Executive Order 13211, entitled
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use (66 FR 28355 (May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866.

I. The National Technology Transfer and Advancement Act

    This action does not involve any technical standards; therefore,
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272 note), does not
apply to this action.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    This action does not entail special considerations of environmental
justice related issues as delineated by Executive Order 12898, entitled
Federal Actions to Address Environmental Justice in Minority
Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

K. Executive Order 12630: Governmental Actions and Interference with
Constitutionally Protected Property Rights

    EPA has complied with Executive Order 12630, entitled Governmental
Actions and Interference with Constitutionally Protected Property
Rights (53 FR 8859, March 15, 1988), by examining the takings
implications of this final rule in accordance with the Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings issued under the Executive order.

L. Executive Order 12988: Civil Justice Reform

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

VII. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report to each House of the Congress and
the Comptroller General of the United States. EPA will submit a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
United States prior to publication of the rule in the Federal Register.
This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

Lists of Subjects in 40 CFR Part 761

    Environmental protection, Hazardous substances, Labeling,
Polychlorinated biphenyls, Reporting and recordkeeping requirements.

    Dated: September 10, 2007.
James B. Gulliford,
Assistant Administrator, Office of Prevention, Pesticides and Toxic
Substances.

0
Therefore, 40 CFR chapter I 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.

0
2. Section 761.80 is amended by adding a new 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 July 21, 2005 petition for an exemption for 1 year to import
1,328,482 pounds of PCBs and PCB items stored or in use in Japan as
identified in its petition, as amended, for disposal.
* * * * *
[FR Doc. E7-18345 Filed 9-17-07; 8:45 am]

BILLING CODE 6560-50-S