[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]


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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.

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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