[Federal Register Volume 60, Number 103 (Tuesday, May 30, 1995)]
[Notices]
[Pages 28108-28110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13136]
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ENVIRONMENTAL PROTECTION AGENCY
[OPPTS-211041; FRL-4954-3]
Response to TSCA Section 21 Petition for Regulations Requiring
Public Notice and Comment Prior to the Issuance of Certain PCB
Commercial Storage or Disposal Approvals
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; Denial of TSCA Section 21 Petition.
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SUMMARY: This notice responds to a citizen's petition submitted by
FulCircle Ballast Recyclers under section 21 of the Toxic Substances
Control Act (TSCA) to initiate a rulemaking to require public notice
and comment prior to granting approvals under section 6(e) of TSCA for
certain facilities handling fluorescent lighting ballasts that contain
Polychlorinated Biphenyls (PCBs). EPA is denying this petition because
EPA does not believe that issuing a rule to require public notice and
comment prior to approval of commercial storage facilities and
alternate destruction methods which handle fluorescent lighting
ballasts is necessary. However, EPA does agree that public notice and
comment should be part of the approval process. To that end, EPA will
clarify to the approving authorities that public notice and an
opportunity for comment must be provided prior to decision on all
storage and disposal approvals. The first step of this process has been
accomplished by a letter from the Assistant Administrator from the
Office of Prevention, Pesticides, and Toxic Substances (OPPTS) to the
Regional Administrators clearly stating the substance of and rationale
for EPA's policy. Further, EPA will revise its existing TSCA approval
guidance to more clearly define the notice and comment procedures which
are to be followed when conducting a review of an application for a PCB
storage or disposal approval.
ADDRESSES: Copies of the petition and all related information used by
the Agency to develop this response are located in the TSCA Non-
Confidential Information Center (7407), Office of Pollution Prevention
and Toxics, Environmental Protection Agency, Rm. B-607, Northeast Mall,
401 M St., SW., Washington, DC 20460. They are available for review and
copying from 12 noon to 4 p.m., Monday through Friday, except for legal
holidays.
FOR FURTHER INFORMATION CONTACT: Susan B. Hazen, Director,
Environmental Assistance Division (7408), Office of Pollution
Prevention and Toxics, Environmental Protection Agency, Rm. E-543B, 401
M St., SW., Washington, DC 20460, (202) 554-1404, TDD (202) 554-0551.
SUPPLEMENTARY INFORMATION: In this notice, EPA is responding to the
petition of FulCircle Ballast Recyclers under section 21 of TSCA, 15
U.S.C. 2620, requesting that rules be issued under 40 CFR part 761 to
require public notice and comment prior to the issuance of certain
approvals to commercially store and dispose of fluorescent lighting
ballasts.
I. Background
A. TSCA Section 21
Section 21 of TSCA provides that any person may petition the
Administrator of EPA to initiate a proceeding for the issuance,
amendment, or repeal of a rule under section 4, 6, or 8, or an order
under section 5(e) or 6(b)(2) of TSCA. Section 21(b)(3) requires that
EPA grant or deny a petition within 90 days of its filing. If EPA
grants a section 21 petition, EPA must promptly commence an appropriate
proceeding in accordance with the relevant TSCA section. If EPA denies
the petition, the reasons for denial must be published in the Federal
Register.
If EPA denies a petition within 90 days of the filing date, or
fails to grant or deny within the 90-day period, the petitioner may
commence a civil action in a Federal district court to compel EPA to
initiate the requested action. This suit must be filed within 60 days
of the denial, or within 60 days of the expiration of the 90-day period
if EPA fails to grant or deny the petition within that period.
B. Summary of Petition
By petition dated February 14, 1995 (EPA received the petition on
February 17, 1995), FulCircle Ballast Recyclers (herein referred to as
``petitioner'') requested EPA, under section 21 of TSCA, to initiate
rulemaking to require public notice and comment prior to granting
approvals under 40 CFR part 761 for certain facilities handling
fluorescent lighting ballasts that contain PCBs. Specifically, there
are two parts to the petition. First, the petitioner requested that
there should be public notice and comment in connection with EPA
approvals under the following sections:
(1) Section 761.65(d), approval of commercial storers of PCB waste,
where the waste involved is fluorescent lighting ballasts containing
PCBs.
(2) Section 761.60(e), approval of alternative methods of
destruction of PCBs, if the proposal involves fluorescent lighting
ballasts containing PCBs at a facility where the alternative technology
will be operated.
Second, the petitioner requested a ruling by EPA temporarily
holding in abeyance regulatory approval action by EPA's Regional
offices on any applications under the sections mentioned above dealing
with fluorescent lighting ballasts containing PCBs until there has been
a reasonable opportunity for public notice and comment on those
applications.
The petitioner is currently in the business of recycling PCB-
containing lighting ballasts for disposal and has an approval issued by
EPA Region II to do so. The petitioner removes the PCB-containing
capacitors and potting materials from the ballasts, which are disposed
of at an approved PCB disposal facility, and recycles the copper,
aluminum and steel components. It is the petitioner's position that
there should be nationally uniform rules assuring notice and an
opportunity for the public to comment on applications pursuant to
Sec. 761.65(d) and Sec. 761.60(e) for facilities handling fluorescent
lighting ballasts containing PCBs and that EPA should respond to
[[Page 28109]] those comments before acting on the applications.
In support of the petition, the petitioner states that public
notice and comment allows for those knowledgeable about the management
of PCBs to review an application from a sophisticated point of view,
and therefore raise pertinent questions based on that knowledge. In
addition, it allows for those living and working in the vicinity of the
facility's location to review the application from a local point of
view, allowing for sensitivity to problems not readily apparent to
someone outside the locality of the operation.
In further support of its request, the petitioner cites 40 CFR part
124, which establishes procedures, including notice and comment
requirements, for issuing RCRA, UIC, PSD and NPDES permits and asks
that EPA apply the appropriate provisions of these regulations to TSCA
approvals for PCBs. In addition, the petitioner asserts that the
Superfund program requires extensive public involvement in connection
with site cleanups. Also, in the case of commercial storers of PCB
waste, EPA published a Federal Register notice on June 10, 1991 (56 FR
26673) soliciting comments on the qualifications of the applicants and
their principals and key employees to engage in PCB commercial storage
activities.
Lastly, the petitioner points out that it is already a ``widely
held practice'' in many EPA Regions to provide for public notice and a
public comment period for applications involving PCB recycling, storage
and disposal operations and cites three examples of this common
practice by EPA, including the petitioner's own approval recently
issued by Region II.
II. EPA's Decision
EPA agrees with the petitioner's underlying premise that there
should be public notice and comment prior to issuing commercial storage
or disposal approvals under the TSCA PCB regulations. However, EPA is
denying the petition because it does not believe it is necessary to
write a Federal regulation to achieve this end.
EPA believes it is important to have public notice and comment
prior to the issuance of certain commercial storage and disposal
approvals for many of the reasons the petitioner has stated in its
request. In fact, EPA's existing TSCA approval guidance (Guidance
Manual for Writers of PCB Disposal Permits for Alternate Technologies,
October 1, 1988 (Ref. 2)) requires public notice and comment prior to
the issuance of an alternate disposal technology approval. The failure
to follow this guidance for one disposal approval was an isolated
instance resulting from a misunderstanding between Headquarters and the
Regional office and is not to be considered as reflecting EPA's
philosophy or practice as a whole.
The input of the public, especially those in the vicinity of a
proposed commercial storage or disposal facility, must play a role in
the issuance of an approval to operate such a facility. By informing
the public and receiving public input, EPA can achieve its goal of
protecting public health and the environment while at the same time not
unfairly subjecting any citizen to unjust or disproportionate
environmental impacts.
In the PCB program, most approval applications mentioned by the
petitioner are granted or denied by the Regional Administrators;
however, the Director of CMD at Headquarters also has the authority to
act on such requests. Therefore, the review process is under EPA's
control and direction. With this in mind, EPA will revise its existing
TSCA approval guidance to more clearly define the notice and comment
procedures which are to be followed when conducting a review of an
application for a PCB storage or disposal approval. The revised
guidance that approving authorities have been directed to follow will
include specific procedures to follow when conducting public notice and
comment. The procedures will include such things as the format and
content of the public notice, timing of the notice, length of time it
should appear, length of comment period, and procedures for responding
to and incorporating comments into the final approval. Not only will
the procedures be revised, but the scope of the guidance will be
expanded to include public notice and an opportunity for comment prior
to a decision on not only approvals relating to fluorescent light
ballast, but on all fixed-site storage and disposal approvals issued
pursuant to 40 CFR 761.60(a)(5), 761.60(e), 761.65(d), 761.70 and
761.75.
Amending EPA's existing guidance as opposed to initiating
rulemaking will be a quick and relatively economical way to implement
the petitioner's request for a consistent national policy. Given EPA's
firm commitment to the principle of notice and comment prior to
issuance of PCB approvals, we do not see what added value is provided
by implementing this principle through more costly, and ultimately less
flexible rulemaking procedures.
As a matter of record, and as evidence in support of EPA's
commitment to adhere to the guidance, EPA Headquarters has notified the
Regional Administrators that public notice and comment must be part of
the approval process and has received written assurances from all ten
of its Regional offices that they heartily endorse and will implement
EPA's policy to provide public notice and an opportunity for comment
prior to the issuance of fixed-site commercial storage or disposal
approvals.
Lastly, on February 21, 1995, the President announced a new
initiative mandating a line-by-line review of all existing regulations
in the Code of Federal Regulations (CFR). The intent of this initiative
is to move towards a regulatory system that focusses on results rather
than procedures and, towards that end, to eliminate any unnecessary
Federal regulatory language that appears in the CFR. EPA believes that
it would be at odds with this Presidential initiative if it were to add
to the CFR procedural rules for issuing commercial storage and disposal
approvals when the same result can be achieved through issuance of
clear guidance to Regional and Headquarters decisionmakers on precisely
what notice and comment opportunities must be provided in connection
with the issuance of PCB storage and disposal approvals.
III. Record
EPA has established a record for its response to this petition
under Docket number OPPTS-211041. The record contains the basic
information considered by EPA in reaching this decision.
The following references are included in the record for this
action:
(1) Petition submitted to USEPA by Karl R. Morthole representing
FulCircle Ballast Recyclers (February 14, 1995) and attachments.
(2) Guidance Manual for Writers of PCB Disposal Permits for
Alternate Technologies (October 1, 1988).
(3) Reinventing Environmental Regulation, President Bill Clinton
and Vice President Al Gore, March 16, 1995.
(4) Letter from Lynn R. Goldman, M.D., Assistant Administrator,
OPPTS, to the Regional Administrators requesting public notice and
comment be part of their PCB commercial storage and disposal approval
process (April 11, 1995).
(5) Replies to Dr. Goldman's April 11, 1995 letter from the
Regional Administrators affirming their support for public notice and
comment being a part of their PCB commercial storage and disposal
approval process.
Region I, May 1, 1995 [[Page 28110]]
Region II, May 11, 1995
Region III, May 4, 1995
Region IV, May 3, 1995
Region V, April 28, 1995
Region VI, April 24, 1995
Region VII, May 1, 1995
Region VIII, May 2, 1995
Region IX, May 2, 1995
Region X, April 18, 1995
IV. Conclusion
For the reasons detailed above, EPA is denying the petition filed
by FulCircle Ballast Recyclers under section 21 of TSCA.
Authority: 15 U.S.C. 2620.
Dated: May 22, 1995.
Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
[FR Doc. 95-13136 Filed 5-26-95; 8:45 am]
BILLING CODE 6560-50-F
