[Federal Register Volume 59, Number 163 (Wednesday, August 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20949]
[[Page Unknown]]
[Federal Register: August 24, 1994]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
[OPPTS-211038; FRL-4901-9]
Response to TSCA Section 21 Petition to Amend the Definition of
Generator
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Denial of TSCA Section 21 Petition.
-----------------------------------------------------------------------
SUMMARY: This notice responds to a citizen's petition submitted by
Environmental Protection Services, Inc. under section 21 of the Toxic
Substances Control Act (TSCA)(15 U.S.C. 2620) to initiate a rulemaking
to amend the definition of ``generator'' under 40 CFR 761.3 to include
persons who ship more than five transformers to rebuilding/
decommissioning facilities for repair, unless they certify that the
transformers are shipped for repair and are not PCB waste. EPA is
denying this petition because amending the definition of generator at
Sec. 761.3 is unnecessary and would not result in greater protection to
health or the environment, because the existing regulations provide
equivalent and adequate protection against unreasonable risk.
ADDRESSES: Copies of the petition and all related information used by
the Agency to develop this response are located in the TSCA
Nonconfidential 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 Environmental Protection Services, Inc. under section 21 of
TSCA regarding amending the definition of ``generator'' under 40 CFR
761.3.
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, among other things, rules imposing substantive
controls on chemical substances or mixtures under section 6 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. 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
On May 27, 1994, Environmental Protection Services, Inc. (herein
referred to as ``petitioner'') petitioned EPA under section 21 of TSCA,
for the amendment of EPA's PCB regulations to address the need to
manifest PCB-Contaminated Transformers that are shipped to rebuilding/
decommissioning facilities for repair but are actually unsuitable for
repair and are therefore PCB waste. The petitioner is currently in the
business of reclaiming valuable metals from PCB-Contaminated
Transformers that have been taken out of service based on a
determination that the transformer is unsuitable for repair. It is the
petitioner's position that many shippers know in advance that their
transformers cannot be repaired but are claiming ignorance of this fact
to avoid the provisions of the PCB regulations at 40 CFR part 761,
subparts D and K. [Note: The petitioner also mentions subpart H;
however, there is no subpart H in the PCB regulations]. In order to
remedy this situation the petitioner requests that EPA revise the
definition of ``generator'' at 40 CFR 761.3 to read as follows:
Any person who, in a single shipment, causes to be transported
greater than five (5) distribution class oil filled equipment (pole
mounts, pad mounts, switch gear, etc.) to a facility which has the
capability to decommission, which includes but not limited to scrap
metal production, as well as a rebuilding and reconditioning
capability shall be considered a ``generator'' unless it provides a
certification that none of the transformers have been subject to the
disposal, recordkeeping and manifest requirements of subparts D, H,
and K of this part.
The petitioner states that in average shipments of 75 to 150 pole-
mounted transformers shipped to service facilities, between 0% to 35%
are actually repairable. Furthermore, the petitioner states, ``By
permitting such shipments without manifesting the transformers' owners
are essentially under no control with respect to on-site storage for
disposal practices.'' As such, the petitioner strongly believes that,
based upon their own experience, large shipments of transformers will
contain units that are clearly unsuitable for rebuilding or
remanufacture and that the corresponding dangers during transport of
such large shipments of unmanifested PCBs present an unreasonable risk
of injury to health and the environment.
In support of their petition, the petitioner provided data which is
representative of the criteria (e.g., age of the unit, non-standard
size, nature of damage to internal or external components, etc.) used
by large shippers of transformers for determining whether these units
should be processed as salvage or reconditioned. If one were to use
these criteria, the petitioner states, it would be immediately obvious
to the owner and certainly to the rebuilding/decommissioning facility,
that the transformer is unsuitable for repair and should be scrapped.
In short, the petitioner believes that these practices are used to
postpone the generator being subject to subpart D, H and K under 40 CFR
part 761.
The petitioner has also obtained information from a confidential
source that the number of transformers being sent to rebuilding/
decommissioning facilities is increasing while at the same time, the
percentage of transformers repaired is decreasing. To substantiate this
claim the petitioner requested that EPA conduct an investigation to
determine statistics that provide the percentage of transformers that
are repaired versus decommissioned.
II. EPA's Decision
EPA has concluded that the petitioner has not presented information
which would warrant initiating rulemaking to amend the definition of
generator at 40 CFR 731.3; therefore, EPA is denying the petition.
Specifically, EPA is denying the petition because amending the
definition of generator as proposed by the petitioner is unnecessary
because the existing regulations adequately protect against
unreasonable risk. Moreover, the petitioners proposed changes would not
result in greater protection to health and the environment or even
address the petitioner's concern that shippers are circumventing the
disposal requirements by sending unmanifested waste to rebuilding/
decommissioning facilities.
The current regulations have a mechanism for handling situations
where unmanifested waste is received by a commercial storer or
permitted disposer (40 CFR 761.211 - Unmanifested Waste Reports). EPA's
position on this matter is further expressed on page 52733 in the
preamble of the December 21, 1989 Federal Register (54 FR 52716) where
EPA states:
...the preparation of an Unmanifested Waste Report should not be
a frequent event for these facilities, since the proposed regulation
would otherwise prohibit the acceptance by any transporter, off-site
commercial storer, or disposer, of any unmanifested PCB waste...
[emphasis added]
If any rebuilding/decommissioning facility receives waste generated by
others, that facility becomes a commercial storer of PCB waste as
defined by Sec. 761.3, and as such is subject to the provisions of 40
CFR part 761 applicable to commercial storers which would require
notification to, and possible approval by, EPA. If this waste is
received at the facility without a manifest, the owner or operator of
the facility shall submit an Unmanifested Waste Report. Owners or
Operators of commercial storage or PCB disposal facilities are required
to prepare an Unmanifested Waste Report whenever they receive from an
offsite source any PCB waste without the required manifest. The report
must be sent, within 15 days after receiving the waste, to both the
Regional Administrator in the region where the waste was generated and
the region where the receiving facility is located. The report includes
information on the disposition of the waste, such as, whether it was
stored for disposal, disposed of or returned to the generator. Properly
submitted Unmanifested Waste Reports could be used to initiate an
investigation whether shippers were attempting to circumvent the
disposal regulations as described by the petitioner.
It should be noted that the rebuilding/decommissioning facility may
also fall within the definition of ``generator of PCB waste.'' The
preamble to the Notification and Manifesting rule (54 FR 52716,
December 21, 1989, at page 52718) states, ``If either the servicing
facility or the owner decides that the equipment cannot be serviced,
the equipment becomes PCB waste and the servicer or processor becomes
the generator of the PCB waste.'' Therefore, if the rebuilding/
decommissioning facility decides that the transformer cannot be
repaired and is in effect PCB waste, then they become the generator for
the purpose of disposal and subject to the notification and manifesting
requirements of subpart K.
The petitioner also maintained that this activity would present a
risk of injury to health and the environment. EPA believes that
amending the definition of generator at Sec. 761.3 is unnecessary and
would not result in greater protection to health or the environment,
because the existing regulations provide equivalent and adequate
protection against unreasonable risk. Broadening the definition of
generator would not provide additional protection to health or the
environment or enhance compliance/enforcement of the requirements of
subparts D, H, and K under 40 CFR part 761. In addition, risks are
further mitigated by the shippers requirement to be in compliance with
the Department of Transportation (DOT) regulations at 49 CFR 172.102
for the transport of PCBs.
In summary, section 21 of TSCA authorizes any person to petition
the Administrator 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. Accordingly, to the extent the
petitioner seeks review of the compliance and enforcement of the
regulations, that challenge is not appropriate in the form of a TSCA
section 21 petition. The situation described by the petitioner in the
petition would be more appropriately addressed by contacting
enforcement officials in the regional offices or EPA's Office of
Enforcement and Compliance Assurance (OECA).
III. Public Record
A. Supporting Documentation
EPA has established a record for its response to this petition
under section 21 of TSCA (docket number OPPTS-211038). The record
contains the basic information considered by EPA in reaching this
decision.
B. References
The following references are included in the record for this
action:
(1) Petition submitted to USEPA by Mark E. Fogel, Attorney for
Environmental Protection Services, Inc. (May 31, 1994) and attachments.
(2) Polychlorinated Biphenyls; Notification and Manifesting for PCB
Waste Activities; Final Rule (54 FR 52716).
(3) Letter from Joseph J. Kelly, S.D. Myers (June 21, 1994) to
USEPA.
IV. Conclusion
For the reasons detailed above, EPA is denying the TSCA section 21
petition by Environmental Protection Services, Inc. to amend the
definition of ``generator'' in 40 CFR 761.3.
Authority: 15 U.S.C. 2620.
Dated: August 19, 1994.
Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic
Substances.
[FR Doc. 94-20949 Filed 8-23-94; 8:45 am]
BILLING CODE 6560-50-F
