[Federal Register Volume 78, Number 66 (Friday, April 5, 2013)]
[Notices]
[Pages 20640-20642]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07981]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OPPT-2012-0902; FRL-9382-9]


Polychlorinated Biphenyls (PCBs); Recycling Plastics from 
Shredder Residue

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: EPA is announcing an interpretation of its regulations that 
will generally allow for the recycling of plastic separated from 
shredder residue under the conditions described in the Voluntary 
Procedures for Recycling Plastics from Shredder Residue, relying 
principally on the regulatory provisions for excluded PCB products. The 
interpretation described in this notice responds to questions EPA has 
received about the applicability of the excluded PCB products 
regulations.

ADDRESSES: The docket for this action, identified by docket 
identification (ID) number EPA-HQ-OPPT-2012-0902, is available at 
http://www.regulations.gov or at the Office of Pollution Prevention and 
Toxics Docket (OPPT Docket), Environmental Protection Agency Docket 
Center (EPA/DC), EPA West Bldg., Rm. 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 (202) 566-1744, and the telephone 
number for the OPPT Docket is (202) 566-0280. Please review the visitor 
instructions and additional information

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about the docket available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Peter Gimlin, National Program 
Chemicals Division, Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460-0001; telephone number: (202) 566-0515; email 
address: gimlin.peter@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

    This notice is directed to the public in general, and may be of 
interest to a wide range of stakeholders, including private citizens, 
Federal, tribal, state and local governments, environmental consulting 
firms, industry representatives, environmental organizations and other 
public interest groups. Since others may also be interested, the Agency 
has not attempted to describe all the specific entities that may have 
interest in this notice. If you have any questions regarding the 
applicability of this action to a particular entity, consult the person 
listed under FOR FURTHER INFORMATION CONTACT.
    EPA is interpreting its regulations to generally allow for 
recycling of plastic separated from shredder residue under the 
conditions described in the Voluntary Procedures for Recycling Plastics 
from Shredder Residue (Ref. 1), relying principally on the regulatory 
provision for excluded PCB products at 40 CFR part 761.

II. Background

    EPA was approached by the Institute of Scrap Recycling Industries, 
Inc. (ISRI), regarding separation, recycling, use, and distribution of 
recycled plastics from shredder residue recovered from metals recycling 
facilities (referred to by ISRI as automobile shredder residue (ASR) 
aggregate). In a February 24, 2011 letter, ISRI requested ``written 
confirmation that separating plastics from ASR aggregate for use and 
distribution in commerce, using processes that reduce any PCBs that may 
be present to a level at or below which there is no unreasonable risk, 
is authorized'' under regulations promulgated pursuant to the Toxic 
Substances Control Act (TSCA) (see 16 U.S.C. 2605(e)) (Ref. 2). ISRI 
stated that:

    * * * analysis shows that the separation, recycling, 
distribution in commerce, and reuse of plastics from shredder 
aggregate is consistent with existing authorizations that allow the 
use and distribution in commerce of products that contain low levels 
of PCBs, including provisions for ``excluded PCB products'' and 
``excluded PCB manufacturing processes'' (as defined in 40 CFR 
761.3).

    ISRI also stated that resolving regulatory uncertainty could lead 
to investments and further development in innovative methods to 
separate plastics from ASR aggregate that would produce broad 
environmental benefits and increase global competitiveness (Ref. 2).
    ISRI developed a set of voluntary procedures designed to prevent 
the introduction of PCBs that are regulated for disposal into recycled 
plastics recovered from shredder residue generated by metal recycling 
facilities. The Voluntary Procedures for Recycling Plastics from 
Shredder Residue (Ref. 1) includes development and implementation of a 
documented materials management system through:
    1. Documented source control programs aimed at preventing the 
introduction of PCBs regulated for disposal into the shredder feedstock 
materials that contribute to any shredder residue from which plastics 
will be recovered for recycling; and
    2. Documented output control programs for facilities processing 
producing/recycling plastics from shredder residue. The Voluntary 
Procedures for Recycling Plastics from Shredder Residue and supporting 
materials are available in the docket at docket ID number EPA-HQ-OPPT-
2012-0902.
    On December 12, 2012, EPA published a notice of request for public 
comments in the Federal Register, entitled Polychlorinated Biphenyls 
(PCBs); Recycling Plastics From Shredder Residue (77 FR 74006). 
Additional background information on recycling activities that would be 
affected by this interpretation, including potential environmental and 
economic benefits, is provided in the December 12, 2012 notice and 
supporting materials are available in the docket at docket ID number 
EPA-HQ-OPPT-2012-0902. In response to this notice, 27 unique public 
comment submissions were received by the Agency. Of these, some 23 were 
supportive of the interpretation the Agency explained in the notice. In 
general, these commenters emphasized the environmental and economic 
benefits that recycling of plastic from shredder residue would provide, 
and concurred with EPA's assessment of the facts and interpretation of 
the PCB regulations as they applied to shredder residue and the use of 
plastics recovered from that residue. Two submissions, including a 
consolidated submission submitted on behalf of nine environmental 
organizations, objected to the Agency's adoption of this interpretation 
on a number of points, such as environmental justice, the adequacy of 
the underlying data and analysis, as well as the legal basis for the 
Agency's interpretation. Finally, one commenter suggested changes to 
the Voluntary Procedures for Recycling Plastics from Shredder Residue 
and another commenter submitted an administrative request regarding the 
comment period. All public comments received in response to the notice 
are available in the docket, as is a Response to Comments Document 
developed by EPA (Ref. 3). After review and consideration of the 
comments received, EPA has decided to adopt the interpretation 
discussed in the December 12, 2012 notice and summarized in Unit III. 
of this notice.

III. Summary of Interpretation

    The interpretation will generally allow for the recycling of 
plastic separated from shredder residue under the conditions described 
in the Voluntary Procedures for Recycling Plastics from Shredder 
Residue (Ref. 1), relying principally on the regulatory provisions for 
excluded PCB products.
    TSCA section 6(e) generally prohibits the manufacture, processing, 
distribution in commerce and use of PCBs. However, EPA has by 
regulation excluded certain materials, including excluded PCB products, 
from these prohibitions. Excluded PCB products are defined as follows:

    Excluded PCB products means PCB materials which appear at 
concentrations less than 50 ppm, including but not limited to:
    (1) Non-Aroclor inadvertently generated PCBs as a byproduct or 
impurity resulting from a chemical manufacturing process.
    (2) Products contaminated with Aroclor or other PCB materials 
from historic PCB uses (investment casting waxes are one example).
    (3) Recycled fluids and/or equipment contaminated during use 
involving the products described in paragraphs (1) and (2) of this 
definition (heat transfer and hydraulic fluids and equipment and 
other electrical equipment components and fluids are examples).
    (4) Used oils, provided that in the cases of paragraphs (1) 
through (4) of this definition:
    (i) The products or source of the products containing < 50 ppm 
concentration PCBs were legally manufactured, processed, distributed 
in commerce, or used before October 1, 1984.
    (ii) The products or source of the products containing < 50 ppm 
concentrations PCBs were legally manufactured, processed, 
distributed in commerce, or used, i.e., pursuant to authority 
granted by EPA regulation, by exemption petition, by settlement 
agreement, or pursuant to other Agency-approved programs;
    (iii) The resulting PCB concentration (i.e. below 50 ppm) is not 
a result of dilution, or

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leaks and spills of PCBs in concentrations over 50 ppm.

40 CFR 761.3.

    EPA regulations allow the use, processing, and distribution in 
commerce of excluded PCB products. 40 CFR 761.20(a) and (c). Except as 
otherwise provided, the regulations do not restrict the forms of use, 
processing and distribution that are allowed. EPA specifically 
identified, as one likely source of PCBs in excluded PCB products, 
``contamination during recycling activities involving'' historic PCBs. 
52 FR 25838, 25844 (July 8, 1987). EPA believes that it is reasonable 
to interpret the regulations as generally allowing the recycling of 
excluded PCB products. Accordingly, under the interpretation, to the 
extent that the feedstock (scrap materials) to a shredder consists of 
these kinds of materials, the plastics separated from the resulting 
residue can be recycled (and the resulting recycled product is also an 
excluded PCB product that can be processed, used and distributed in 
commerce, including being further recycled), provided the PCB 
concentration in any resulting product is below 50 parts per million 
(ppm).
    The burden of demonstrating that a regulatory exclusion applies 
rests with the party seeking that exclusion. EPA believes that, for 
shredders and their suppliers that follow the Voluntary Procedures for 
Recycling Plastics from Shredder Residue, it is appropriate to 
generally treat the feedstock as consisting of excluded PCB products 
unless there is information specifically indicating that the feedstock 
does not qualify. If shredders and suppliers do not follow the 
Voluntary Procedures for Recycling Plastics from Shredder Residue, they 
will need to be able to otherwise demonstrate that the feedstock and 
residue meet the exclusion. Clearly if the feedstock materials or 
residue contain PCBs at concentrations [gteqt] 50 ppm, the materials 
cannot qualify as excluded PCB products.
    EPA acknowledges uncertainty as to the source of the PCBs in 
shredder residue. However, EPA believes the procedures, as explained in 
the Voluntary Procedures for Recycling Plastics from Shredder Residue, 
can prevent the introduction of PCBs at levels [gteqt] 50 ppm. EPA may 
periodically evaluate the processes and procedures involved in 
recycling plastics recovered from shredder residue. In addition, EPA 
believes it is likely that the number of potential sources of PCBs at 
levels [gteqt] 50 ppm has declined since the TSCA section 6(e) 
prohibitions went into effect. If PCBs in the feedstock material are < 
50 ppm, it is plausible that the sources of PCBs in the residue are 
excluded PCB products. The information available to EPA indicates that 
the PCBs found associated with plastics separated from residue are 
Aroclor PCBs. Aroclors were intentionally manufactured PCB mixtures, 
not inadvertently generated PCBs. Since PCBs in general and Aroclors 
more specifically have not been intentionally produced in the United 
States since the prohibitions in TSCA section 6(e) became effective, 
the Aroclor identity of the PCBs found associated with plastics 
separated from shredder residue suggests that they were manufactured 
prior to 1984.
    In promulgating the excluded PCB product rule, EPA described the 
provision as follows: EPA is adopting the generic 50 ppm exclusion for 
the processing, distribution in commerce, and use, based on the 
Agency's determination that the use, processing, and distribution in 
commerce of products with less than 50 ppm PCB concentration will not 
generally present an unreasonable risk of injury to health or the 
environment. EPA could not possibly identify and assess the potential 
exposures from all the products which may be contaminated with PCBs at 
less than 50 ppm. * * * EPA has concluded that the costs associated 
with the strict prohibition on PCB activities are large and outweigh 
the risks posed by these activities. 53 FR 24210 (June 27, 1988).
    EPA has further stated, with respect to the excluded PCB products 
rule: ``These amendments have excluded the majority of low-level PCB 
activities (less than 50 ppm) from regulation'' (Ref. 4). Given the 
difficulty of determining the precise source of PCBs, EPA believes the 
purpose of excluding ``old'' PCBs under the excluded products rule is 
best effectuated in these circumstances by treating < 50 ppm materials 
entering a shredder as excluded PCB products unless there is 
information specifically indicating that the materials do not qualify.
    After reviewing the comments received, EPA has weighed the 
competing considerations and decided to adopt, through this notice, the 
interpretation discussed in the December 12, 2012 notice. 77 FR 74006 
(December 12, 2012). This interpretation is not a legislative rule 
because it does not impose any binding requirements on either EPA or 
the regulated community.

IV. References

    As indicated under ADDRESSES, a docket has been established for 
this notice under docket ID number EPA-HQ-OPPT-2012-0902. The following 
is a listing of the documents that are specifically referenced in this 
notice. The docket includes these documents and other information 
considered by EPA, including documents that are referenced within the 
documents that are included in the docket, even if the referenced 
document is not physically located in the docket. For assistance in 
locating these other documents, please consult the person listed under 
FOR FURTHER INFORMATION CONTACT.
    1. ISRI. Voluntary Procedures for Recycling Plastics from Shredder 
Residue, October 24, 2012.
    2. ISRI. Letter from Robin K. Weiner to Steve Owens, February 24, 
2011.
    3. EPA. Agency Response to Comments--Polychlorinated Biphenyls 
(PCBs); Recycling Plastics From Shredder Residue, March 2013.
    4. EPA. PCB Q & A Manual: An EPA TSCA assistance document designed 
to provide the regulated community with Agency interpretations to 
frequently posed questions, 1994, available at http://www.epa.gov/osw/hazard/tsd/pcbs/pubs/manual.pdf.

List of Subjects

    Environmental protection, Hazardous substance, PCBs, Plastic, 
Polychlorinated biphenyls, Recycling, Shredder residue.

    Dated: March 29, 2013.
James Jones,
Acting Assistant Administrator, Office of Chemical Safety and Pollution 
Prevention.
[FR Doc. 2013-07981 Filed 4-4-13; 8:45 am]
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