EPA Makes Long-Awaited Changes to PCB Clean-up Rules

On August 29, 2023, the United Stated Environmental Protection Agency (USEPA) Office of Land and Emergency Management published new and impactful rule changes in the Federal Register regarding its polychlorinated biphenyl (PCB) Cleanup and Disposal Program under the Toxic Substances Control Act (TSCA).  These rule changes have been in the works since October of 2021 when the EPA proposed the rule changes.
The USEPA made the following changes to the PCB rules:

  • Expanded the list of allowed  laboratory extraction and analytical methods for PCBs; 
  • Added reporting requirements for performance-based cleanup option;
  • Removed the provision allowing PCB bulk product waste to be disposed of as roadbed material;
  • Added more flexible provisions for cleaning up spills that occur during emergency situations, such as during a hurricane or flood; 
  • Introduced less restrictive disposal requirements for PCB remediation waste; and 
  • Improved the implementation of the regulations, clarifying ambiguity and correcting technical errors and outdated information. 

This post focuses on some of the changes to the TSCA PCB regulations noted above: the reporting requirements and disposal options for performance-based cleanups.

Notification and Pre-approval:  Within 40 CFR 761.61, the Performance-based clean-up option was the only one of three options available to responsible parties (RPs) that did not require RPs to notify and obtain EPA approval prior to undertaking the remediation of PCBs.  

The new Performance-based rule does not require pre-approval by EPA, but it does require RPs to notify the USEPA within 30 days following remediation when undertaking a cleanup under the Performance-based option.   

Disposal Flexibility:  Another change, which is clearly more positive, concerns some additional disposal flexibility when executing remedial activities under the Performance-based option. Under the previous rule, RPs were required to dispose of PCB Remediation Waste in a limited number of expensive TSCA permitted landfills. For PCB remediations occurring in the eastern part of the United States, this required remediators to pay for costly transportation and disposal of the waste to a facility in faraway Michigan.  If the waste also had hazardous characteristics for other constituents, it would then have to be shipped to Alabama or Louisiana. Now, the regulated community is allowed to dispose of PCB Remediation Waste in certain Subtitle C facilities (as long as certain conditions are met), which should significantly reduce transportation and disposal costs.

Cleanup Standard:  Unfortunately, EPA did not provide more flexibility when it comes to cleanup standards.  The new rule clarifies the previous interpretation with explicit language defining >1 ppm PCBs as the cleanup standard under this option. 

Will these 2023 PCB rule changes encourage RPs to move away from the Performance-based option?  That may be what transpires, assuming that the desire to avoid prior notification was the driver for RPs selecting that option in the past. However, with the growing cost of long haul transport across state lines for the disposal of waste, the cost savings of using more local sub-title C facilities that will now be allowed may prove to be an enticing budgetary consideration.   We will know shortly, as the EPA’s new rules take effect on February 26, 2024. 

The following links take you to the details of the rule changes: