This section establishes procedures that may be used for purposes of the cleanup and/or disposal of PCB releases caused by an emergency situation as defined in § 761.3. This section allows the request of a waiver of any of the requirements in §§ 761.60, 761.61, 761.62, or 761.65. Any person conducting activities under these emergency provisions is also responsible for determining and complying with all other applicable Federal, State, and local laws and regulations. This section does not prohibit any person from implementing temporary emergency measures to prevent, treat, or contain further releases or mitigate migration to the environment of PCBs or PCB remediation waste.

(a) Applicability. This section may only be applied to the cleanup and/or disposal of PCB releases caused by an emergency situation as defined in § 761.3.

(b) Waiver Request. Any person intending or planning to sample, extract, analyze, clean up, store, and/or dispose of PCBs under this section shall submit a waiver request to the Regional Administrator in the EPA Region where the sampling, extraction, analysis, cleanup, storage, and/or disposal would occur, in writing and/or by email no later than seven (7) days after discovery of the release or implementation of any temporary emergency measures, as applicable. The requestor must also send a copy of the waiver request to the Director of the State or Tribal environmental agency where the sampling, extraction, analysis, cleanup, storage, and/or disposal would occur. If the sampling, extraction, analysis, cleanup, storage, and/or disposal activities in the waiver request would be conducted in more than one Region, then the waiver request must be submitted, in its entirety, to the Regional Administrators for all affected Regions.

(1) This request shall include:

(i) The contact information for the person requesting the waiver.

(ii) Location(s) of the release(s).

(iii) A description of the emergency situation, including information about adverse conditions and the incident(s) that caused them.

(iv) The type(s) of material(s) that are contaminated and the source of the release, if known.

(v) The as-found PCB concentrations in the PCB waste, unless the materials are being managed as if they contain ≥500 ppm PCBs. If actual PCB concentrations have not yet been determined, then estimated concentrations may be provided in the request. Actual PCB concentrations shall be determined before disposal activities commence, unless the waste is being managed as if it contains ≥500 ppm PCBs.

(vi) The provisions of §§ 761.60, 761.61, 761.62, or 761.65 that the person requests to waive or modify (or to use alternative procedures for) and an explanation of why compliance with the existing provisions would be impracticable as a result of the emergency situation.

(vii) The plan for how sampling, extraction, analysis, storage, cleanup, and/or disposal of the PCB waste would be conducted if the waiver were granted. The plan shall provide information to support how the actions described in the plan do not pose an unreasonable risk of injury to health or the environment. This plan shall be based on the as-found PCB concentrations in the materials unless waste is being managed as if it contains PCBs ≥500 ppm.

(viii) Whether or not the PCB waste is near, or likely to impact, surface waters, ground waters, drinking water sources or distribution systems, wells, sediments, sewers or sewage treatment systems, grazing lands, vegetable gardens, residential dwellings, hospitals, schools, nursing homes, playgrounds, parks, day care centers, endangered species habitats, estuaries, wetlands, national parks, national wildlife refuges, commercial fisheries, or sport fisheries and how those areas and potential impacts will be addressed.

(2) To make changes to submitted information described in paragraph (b)(1) of this section, the requestor shall submit the new information to the EPA Regional Administrator(s) in writing and/or by email. Changes must also be sent to the Director of the State or Tribal environmental agency or agencies where the request is applicable.

(c) Approval of waiver requests. The EPA Regional Administrator may approve the waiver request, request additional information, approve the waiver request with specified changes or additional conditions, or deny the waiver request, in writing, by telephone, or by email. An approval, with or without changes or conditions, shall be based on the Regional Administrator's finding that compliance with the regulatory requirements from which a waiver is sought is impracticable and that the action approved under the waiver will not pose an unreasonable risk of injury to health or the environment. At any point, EPA may impose additional sampling, extraction, analysis, cleanup, storage, and/or disposal requirements, or require the requestor to delay acting on their proposed plan, in order to ensure the actions will not pose an unreasonable risk of injury to health or the environment.

(d) Steps after approval of waiver request. Sampling, extraction, analysis, cleanup, storage, and disposal activities as described in the waiver request may begin after the EPA Regional Administrator responds with approval of the waiver request. All sampling, extraction, analysis, cleanup, storage, and disposal activities shall be conducted in compliance with the terms of the approval and all applicable provisions of §§ 761.60, 761.61, 761.62, and 761.65 not expressly waived by the approval.

(e) As-found concentration. Sampling, extraction, analysis, cleanup, storage, and disposal activities conducted under this section shall be based on the as-found concentration of the PCB waste unless the materials are being managed as if they contain ≥500 ppm PCBs.

(f) Records, manifests, and certification. Recordkeeping and certification are required in accordance with § 761.125(c)(5). The manifesting and reporting requirements in Subpart K apply to waste disposed of under this section. However, if the person requesting a waiver has not previously submitted a notification of PCB activity as described in § 761.205 and the requirements of § 761.205 specify that such notification is required for the cleanup, storage, and/or disposal activity, the requestor shall submit the notification within ten (10) business days of their waiver request. The requestor does not have to wait to obtain their EPA identification number before initiating cleanup and/or disposal activities described in their approved waiver request. While waiting for their identification number, the requestor may use the generic identification “40 CFR PART 761” in lieu of an EPA identification number on manifests for PCB waste. The requestor may alternatively use an EPA identification number they previously obtained from EPA under RCRA or a State or territory under an authorized RCRA program, if they have one. Once the requestor receives an EPA identification number, they shall use it on manifests for PCB waste.

[88 FR 59690, Aug. 29, 2023]