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EPA Proposes Rulemaking to Expand Available PCB Analytical Methods and Amend PCB Cleanup and Disposal Program Requirements

EPA is considering a potpourri of changes to its Toxic Substances Control Act (TSCA) regulations governing the cleanup and disposal of polychlorinated biphenyls (PCBs).  A proposed rulemaking to amend the PCB regulations in 40 C.F.R. Part 761 was published in the Federal Register on October 22, 2021.  The proposal is largely focused on expanding the available options for analytical methods (extraction and determinative) used to characterize and verify the cleanup of PCB waste under TSCA and which are summarized below.  However, the proposal also includes a number of other substantive amendments to the PCB program, also summarized below.  EPA Comments are due by January 20, 2022 under a one-month extension granted by EPA in December.    

Expanded Analytical Methods
Some of the proposed changes to the analytical methods include the following:

• Expansion of the available options for extracting PCBs from environmental media. EPA proposes to add the following extraction methods from SW-846 for use on solid matrices: Method 3541 (Automated Soxhlet Extraction), Method 3545A (Pressurized Fluid Extraction) and Method 3546 (Microwave Extraction). EPA proposes to add the following methods for extraction of PCBs from aqueous matrices: Method 3510C (Separatory Funnel Liquid-Liquid Extraction), Method 3520C (Continuous Liquid-Liquid Extraction), and Method 3535A (Solid-Phase Extraction). EPA proposes to incorporate these methods by reference into 40 C.F.R. §761.19.
• Removal of the ultrasonic extraction method (SW-846 Method 3550B) from the PCB regulations on the basis that it does not consistently produce reliable results and has a higher potential than other methods to be conducted improperly.
• Addition of the following three determinative methods to the PCB regulations: SW-846 Method 8082A, SW-846 Method 8275A, and Method 1668C. The latter is a controversial method developed – but never approved - for use in determining compliance under EPA’s Clean Water Act (CWA) wastewater discharge permitting program. EPA states in the proposal that, currently, Method 8082 is the only determinative method for PCB samples listed in the regulations and that any other determinative method would require EPA approval. It notes that it has not received any significant concerns from the regulated community regarding the availability of determinative methods, but has investigated additional methods to include in the regulations so as to provide a greater number of options for the regulated community, which could reduce administrative burden on the agency by reducing the number of approvals processed for alternative methods. As to Method 1668C, it had been  proposed by EPA for approval for use in determining compliance under the CWA in 2010, however, in response to numerous comments submitted by the regulated community identifying significant technical issues and shortcomings with the Method,  it was not approved . Significant concerns are likely to be raised regarding EPA’s proposal to include this method in the TSCA rulemaking.  

Substantive Amendments to PCB Remediation Requirements
Proposed substantive amendments to the PCB remediation requirements include the following:

• Amendment of the performance-based disposal option for PCB remediation waste under Part 761.61(b) to include provisions addressing applicability, excluded sites, cleanup levels, verification sampling, recordkeeping, notification, and disposal options. EPA notes that the performance-based disposal option does not explicitly require or refer to cleanup requirements or cleanup levels and this could make it challenging for site owners to know when EPA would agree that on-site cleanup is complete. As such, EPA is proposing to add specific provisions regarding cleanup requirements under this option.
• Removal of the option to dispose of PCB bulk product waste under asphalt as part of a roadbed. EPA had allowed this option in its 1998 rulemaking on the basis that PCBs do not migrate from bulk product waste, but it notes in the current proposal that this has been proven incorrect in studies performed since that time. As such, EPA states that it can no longer conclude that this practice presents no unreasonable risk of injury to health or the environment.  
• Addition of provisions to the PCB Spill Cleanup Policy that would (1) allow for more flexible requirements for cleanup of spills caused by and managed in emergency situations, such as hurricanes or floods and (2) allow individuals to request a waiver from certain requirements in emergency situations.  EPA’s proposed definition of “emergency situation” includes a requirement for an official governmental declaration of the emergency such as a natural disaster or emergency declaration by a Governor or the President or an incident funded under the Federal Emergency Management Agency (FEMA) via a Stafford Act disaster declaration or emergency declaration. 
• Removal of certain text from the PCB remediation waste disposal requirements in §761.50(b)(3)(ii), which EPA states is erroneous and inconsistent with the definition of PCB remediation waste and could incorrectly imply that waste with <50 ppm PCB that meets the definition of PCB remediation waste is not regulated for disposal. EPA maintains that all materials that fit the definition of PCB remediation waste in §761.3 – including materials at any current concentration where the original source was ≥500 ppm PCBs beginning on April 18, 1978, or ≥50 ppm PCBs beginning on July 2, 1979 – are regulated for cleanup and disposal under §761.61.
• Inclusion of other changes intended by EPA to improve implementation of existing regulatory requirements, clarify regulatory ambiguity and correct technical errors in the regulations. These changes include, among others, adding a definition of “as-found concentration” since this serves as a basis for several regulatory requirements.