[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]



=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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