|June 24, 2010|
USEPA Issues PCB Advance Notice of Proposed Rulemaking
Section 6(e) of the Toxic Substances Control Act of 1976 explicitly banned the further use of PCBs, except in applications where USEPA could demonstrate that there was no unreasonable risk of injury to health or the environment. These applications, referred to as "use authorizations," were spelled out over many years of rulemaking and litigation, some 30 years ago. Use authorizations today are generally limited to either short term phase-out open applications (such as heat transfer and hydraulic systems) or indefinite authorization for so-called "totally enclosed" uses such as certain electrical equipment and natural gas systems.
On April 7, 2010, USEPA issued an Advance Notice of Proposed Rulemaking (ANPRM) proposing a broad array of changes to the use authorization provisions of the PCB regulations. In the ANPRM, USEPA indicates that it is currently reassessing the various use authorizations still in place, and considering specifically restricting or eliminating certain of them. This reassessment will consider whether particular authorized uses are still current or relevant, whether recent human health studies suggest the need for changing the use authorizations, and whether some uses should simply be phased out because USEPA believes they are outmoded already.
The scope of the proposed changes includes, but is not limited to, the following:
The regulated communities most impacted by the ANPRM include electric utilities and others owning transformers and capacitors; natural gas transmission and distribution companies, and building owners and managers.
Electric UtilitiesElectric utilities appear to be the primary target of the proposal. Most transformers containing ≥50 ppm PCBs have been authorized as totally enclosed since the early 1980s subject to certain higher-risk exceptions (food or feed locations, in or near commercial buildings, etc.), and USEPA had assumed that the population of PCB transformers would decline through attrition. While the use of PCB (>500 ppm) transformers by electric utilities has declined significantly over the years, use of this equipment has not declined noticeably among government and other industrial users over the same time period.
In the ANPRM, USEPA has proposed a broad range of phase-outs and other restrictions for PCB-containing electrical equipment, including:
USEPA also requests extensive information from electric utilities, including data and information describing equipment failure rates and causes, PCB alternatives, current management practices, reclassification history, and possible increased risk from vandalism, theft and fraudulent scrap export.
Natural Gas SystemsNatural gas transmission and distribution companies have been subject to a PCB use authorization since the early 1980s for systems containing <50 ppm PCB in pipeline liquids, and since 1998 for systems containing any concentration of PCBs provided owners meet certain management and disposal requirements contained in the regulations. In recent years, despite these use authorizations, USEPA has openly expressed its concerns that systems should have purged themselves of PCBs, that finding elevated PCB levels in customer meters (although allowed by the regulations) is too close the customer, and that greater control may be necessary.
The regulatory changes proposed by USEPA for gas systems include:
The gas industry has had an open dialog with USEPA about the PCB issue for years, going back to the Compliance Monitoring Program in the 1990s, and has long contended that removing PCBs from their gas systems is not possible. If promulgated, elimination of the use authorization for gas systems would cause a PCB >50 ppm finding to be a violation of the (new) regulations.
USEPA has requested an assortment of data and information from the gas industry to assist in their deliberations, including historical and geographic PCB concentration data, plans for responding to PCBs when found, testing practices for PCBs in dry systems, and management practices used by companies to comply with the current regulations.
Another proposed change impacting the natural gas industry is the possible elimination of the use authorization for PCBs in air compressor systems. These systems, commonly operated at natural gas compressor stations to start the gas compressors, often used PCB-containing lubricants prior to 1970. Most of these systems were cleaned and flushed by USEPA-permitted contractors in the 1980s and 90s, and in 1998 USEPA included a self-implementing air system flushing process in the PCB regulations. Still, since neither of the above processes were measurement-based, it is possible for some air systems to contain measureable PCB levels, which in turn could require recleaning if a 1 ppm PCB use authorization standard is adopted.
Cleaning and Coating OptionAn issue of concern to both electric utilities and gas companies is the proposed restriction of the cleaning and coating option currently available for PCB spill-impacted porous materials (such as concrete). Originally incorporated as 40 CFR 761.30(p) in the 1998 rulemaking, this provision has been widely used to address concrete contamination in locations where removal is impractical (as was USEPA's intent), such as in transformer vaults and compressor stations. USEPA is now apparently claiming that this option could result in airborne PCBs somehow diffusing through the coating, and as a result USEPA is considering eliminating, modifying or restricting the use of this provision. If enacted, any such changes could also result in reconsideration of previous work done according to this provision.
Building MaterialsThe use of building materials containing ≥50 ppm PCBs has never been authorized by USEPA, and as a result such material needs to be removed and disposed of as a PCB bulk product waste whenever it is discovered. The main use of PCBs in building materials is as a plasticizer. While not common, PCBs may be found in paints, specialty coatings, caulking, sealants and other materials used in the 1950s and 60s. These building materials are now being encountered more frequently as building stock reaches optimum age for renovation and/or replacement.
Under current regulations, building owners are not required to test for PCBs in building materials, but once detected ≥50 ppm the building owner must embark on a remediation program. Some remedial projects necessitate USEPA involvement, since the removal methods and allowable residual levels are not defined in the regulations.
Through the ANPRM, USEPA is now considering authorizing the use of building materials, specifically caulk, that contain PCBs above 50 ppm.
Please contact Renee Cipriano (312.258.5720) or Josh More (312.258.5769) of Schiff Hardin's Environmental Group, or John Woodyard of Weston Solutions (847.918.4008), co-author of this alert, for questions regarding implications of USEPA's PCB Advance Notice of Proposed Rulemaking.
RECENT ENVIRONMENTAL PUBLICATIONS"USEPA Issues New Sulfur Dioxide NAAQS," Environmental Update (June 23, 2010)
"USEPA Issues Final Tailoring Rule," Environmental Update (May 19, 2010)
"USEPA Proposes Reconsideration of 2009 New Source Review Aggregation Rule,"Environmental Update (April 7, 2010)
"EPA Moves Forward on GHG Regulation," Environmental Update (April 1, 2010)
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