EPA Reviewing PCB Rules and MARAD Foreign Transfer Approvals

On April 7, 2010, the Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking (ANPRM), 75 Fed. Reg. 17,645, announcing its intent to reassess its regulations governing the existing use of polychlorinated biphenyls (PCBs) under the Toxic Substances Control Act (TSCA).
United States Transport
To print this article, all you need is to be registered or login on Mondaq.com.

New Developments

On April 7, 2010, the Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking (ANPRM), 75 Fed. Reg. 17,645, announcing its intent to reassess its regulations governing the existing use of polychlorinated biphenyls (PCBs) under the Toxic Substances Control Act (TSCA). The rulemaking will affect all industries that continue to use enclosed PCBs in some form, including the rail, waste management, and shipping industries. The public comment period closes on July 6, 2010. In the meantime, the Maritime Administration (MARAD) has informally advised that it and EPA are negotiating a Memorandum of Understanding (MOU) governing EPA's review of proposed transfers of ownership and/or flag of U.S.-flag vessels, including vessels that are being sold for scrap and vessels being simply sold to foreign buyers for continuing commerce, for which MARAD's approval is required. Details of the MOU are not yet available. MARAD intends to modify its foreign transfer regulations in accordance with this MOU, and EPA is proposing changes to its PCB rules, as noted above.

Background

MARAD's Foreign Transfer Approval Process: In general, the transfer of a U.S.-flag vessel to another registry and/or to a non-U.S. citizen owner requires the prior approval of MARAD under 46 U.S.C. ยง 56101 (which is the current codification of Section 9 of the Shipping Act, 1916, as amended). Under its current regulations (46 C.F.R. Part 221), MARAD has the authority to evaluate the proposed transfer based on certain criteria, the predominant of which has been national security. However, in recent years, MARAD has developed an informal process with EPA, whereby EPA routinely reviews whether the vessel contains any PCBs and hence whether its proposed transfer would violate TSCA's prohibition on the exportation of PCBs. This new process, which has not been written in regulations, has held up the transfer of U.S.-flag vessels for weeks if not months at a time while EPA determines the condition of the vessel. The operating assumption by the two agencies appears to be that the vessel contains PCBs or other regulated substances and therefore must be controlled before the transfer. This policy applies even if the vessel is not being sold for scrap and regardless of when the vessel was built.

EPA Existing Regulations: Congress banned further manufacture of PCBs as of January 1, 1977. However, EPA was given the authority to regulate the use in commerce of existing PCBs. PCBs are still used in transformers, hydraulic systems, switches, capacitors, and cables. Current regulations allow the continued use of PCBs provided EPA finds that their use and distribution will not present an unreasonable risk of injury to health or the environment. Now, some 30 years later, EPA has concluded that the risks and benefits from the continued use of remaining equipment containing PCBs may have changed enough to consider amending its regulations. This conclusion is based on information from two toxicological studies, the most recent of which, conducted by the Agency for Toxic Substances and Disease Registry in November 2000, found evidence of toxicity from continued exposure to PCBs.

EPA Request for Comments on ANPRM

EPA's intent under the ANPRM is to gather information from current industry and municipal users of PCBs to reassess whether PCBs should be eliminated, phased out or more stringent requirements should be put in place. A possible time frame for eliminating all current uses of equipment containing PCBs would be consistent with the 2025 deadline established by the signatories to the 2009 Stockholm Convention on Persistent Organic Pollutants (which the U.S. has signed but not ratified). Interim deadlines may be established as follows:

  • By 2015, eliminate all use of askarel containing equipment (>100,000 ppm PCBs);
  • By 2020, eliminate all use of oil-filled PCB equipment (>500 ppm) and the authorization for use of PCBs at >50 ppm in pipelines; and
  • By 2025, eliminate all use of any PCB contaminated equipment (>50 ppm).

To determine whether a ban on all usage should be put in place, EPA is seeking comments on what alternatives to PCBs are currently commercially available, what would it cost the industry to eliminate and dispose of the equipment containing PCBs, and the available capacity for the disposal of PCBs.

Two industries affected by the ANPRM are rail and shipping. With respect to the rail industry, EPA has asked the following questions in the ANPRM:

1. In what railroad systems are PCB transformers and PCB-contaminated transformers still in use as railroad transformers?

2. What percentage of railroad transformers are PCB transformers?

3. How many railroad transformers are PCB transformers?

4. What percentage of railroad transformers are PCB-contaminated transformers?

5. How many railroad transformers are PCB-contaminated transformers?

6. What is the expected life of a transformer now in service as a railroad transformer before it requires routine servicing of the dielectric fluid?

7. What would be the difference in cost (and why) for removing within 10 years the PCBs from the railroad transformers through reclassification and disposing of them versus disposing of the railroad transformers without reclassification at the end of their useful life?

With respect to vessels, EPA has asked the following questions in the ANPRM:

"1. In what vessel systems is PCB-containing equipment still in use on vessels?

2. What percentage of vessel equipment uses liquid PCBs?

3. What percentage of vessel equipment uses non-liquid PCBs?

4. What is the expected life of equipment containing PCBs on vessels now in service before it requires routine servicing?

5. What is the difference in the locations used for liquid filled equipment, versus non-liquid filled equipment located?

6. How much does it cost to identify and test (sample collection, extraction, chemical analysis, and recordkeeping) liquid filled equipment and/or non-liquid filled equipment on vessels to determine the PCB concentration?

7. Other than chemical analysis, what methods (such as application type, nameplate, model number, manufacturer name, etc.) can be used to identify PCB-containing equipment?

8. Do non-liquid PCBs enclosed in cabling pose any greater risk to the health of the public than liquid PCBs enclosed in cabling?

9. Should the "totally enclosed" exemption accorded to liquid PCBs enclosed in cabling be extended to solid PCBs?"

EPA has posed similar questions in the ANPRM with respect to utilities, manufacturers, mining companies, commercial real estate companies, testing laboratories, repair and maintenance providers, waste management companies, and other transportation service providers (including pipelines).

Conclusions and Recommendations

Since MARAD has not published any new proposed foreign transfer regulations, interested parties will have to address their concerns on the new procedures involving EPA's approval to the Department of Transportation or to Members of Congress. Parties affected by the proposed EPA rulemaking on existing uses of PCBs should comment on the specific questions raised by EPA in the ANPRM before the public comment period closes on July 6, 2010.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

See More Popular Content From

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More