

[Federal Register: February 13, 2006 (Volume 71, Number 29)]
[Rules and Regulations]               
[Page 7414-7415]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe06-8]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 35

[OECA-2005-0082; FRL-8031-4]
RIN 2070-AJ24

 
Revision to Toxic Substances Compliance Monitoring Grants (TSCA 
Section 28) Regulation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This is an amendment to the grant regulations. EPA is amending 
regulations based on a determination that it is not practicable to 
award Toxic Substances Control Act (TSCA) compliance monitoring grant 
funds to States through a competitive process. Instead, EPA will award 
these grants to States on an allotment basis. Section 28 of TSCA 
authorizes EPA to award grants to States for the establishment and 
operation of programs to prevent or eliminate unreasonable risks to 
health or the environment associated with chemical substances or 
mixtures within the States with respect to which EPA is unable or not 
likely to take action for their prevention or elimination.

DATES: This final rule is effective February 13, 2006.

ADDRESSES: Materials related to this rulemaking are contained in EPA 
Grants Docket OECA 2005-0082. The EPA Docket is located at the Office 
of Environmental Information Docket, EPA/DC, EPA West, Room B102, 1301 
Constitution Avenue, NW., Washington, DC, 20460. The Air Docket is open 
from 8:30 a.m. until 4:30 p.m., Monday through Friday. Materials 
related to previous EPA actions on the essential use program are 
contained in EPA Docket No. OECA-2005-0082.

FOR FURTHER INFORMATION CONTACT: Phyllis Flaherty, Chief, National 
Compliance Monitoring Policy Branch (NCMPB), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone 
number: (202) 564-2405; fax number: (202) 564-0050; e-mail address: 
flaherty.phyllis@epa.gov.


SUPPLEMENTARY INFORMATION: Section 28 of TSCA authorizes EPA to award 
grants to States for the establishment and operation of programs to 
prevent or eliminate unreasonable risks to health or the environment 
associated with chemical substances or mixtures within the States with 
respect to which EPA is unable or not likely to take action for their 
prevention or elimination.
    This action is necessary to reflect how EPA manages the TSCA 
compliance monitoring programs for PCB and asbestos compliance 
monitoring activities through grants to States. EPA manages these 
grants as continuing environmental programs with awards allocated to 
participating States annually on a non-competitive basis. For the 
grants awarded in FY2002, FY2003, FY2004, and FY2005, the EPA Grants 
Administration Division granted a deviation to allow EPA to award these 
grants without competition to avoid disruption of ongoing State 
compliance monitoring programs. As described more fully below, it is 
not practicable to award these funds competitively. If funds were 
competed, some States may receive reduced or zero funding which could 
adversely impact ongoing State compliance monitoring programs and cause 
layoffs of State personnel. This amendment will eliminate the need for 
additional deviations by removing the requirement to award these grant 
funds competitively.
    EPA has in the past competitively awarded sector based/multimedia 
grants which funded discrete projects under the TSCA section 28 grant 
authority. When 40 CFR 35.312 was promulgated in 2001, the intent was 
that these project specific funds would be competed and that, as 
described above, the grants for PCBs and asbestos would continue to be 
funded as continuing programs and not be competed. EPA no longer awards 
its sector based/multimedia grants for discrete compliance monitoring 
projects exclusively under TSCA but awards these as multimedia capacity 
building and cooperative agreement grants under various statutes 
including TSCA section 10. EPA continues to compete these grants, as 
appropriate, which fund discrete projects rather than continuing 
environmental programs.
    Under EPA's grants competition policy, EPA awards grants 
competitively ``to the maximum extent practicable.'' EPA has determined 
that it is not practicable to award the TSCA PCB and asbestos 
compliance monitoring grants to States under 40 CFR 35.312 ``through a 
competitive process'' for the following reasons:
    1. If the funds were competed, States may receive zero or reduced 
funding. Such funding reductions could result in layoffs or turnover of 
qualified and

[[Page 7415]]

experienced State inspectors who are responsible for operating State 
PCB and asbestos compliance monitoring programs. This would not be in 
the public interest since States with compliance monitoring programs 
depend on EPA grant funds to retain the skilled personnel needed for 
effective program implementation. Moreover, in States that scale back 
programs due to funding reductions, any turnover of experienced 
inspectors would require EPA to divert its limited grant dollars from 
high priority compliance monitoring activities to training new 
inspectors.
    2. States with existing TSCA asbestos and PCB compliance monitoring 
programs depend on EPA grant funding to run these programs and State 
activities under the grants comprise a significant portion of EPA's 
national program for ensuring compliance with the TSCA asbestos and PCB 
requirements. Under a competition, these States may receive zero or 
reduced funding, which could cause them to discontinue their programs 
or cut back on inspections, potentially leading to an increased rate of 
non-compliance with PCB and asbestos regulations. Non-compliance with 
the regulations would pose a public health risk associated with the 
improper handling of PCB and asbestos materials.
    3. Regions need to be able to work closely with States to ensure 
that their compliance monitoring programs meet current EPA standards 
and policies to ensure a cooperative and effective inspection program. 
Building and maintaining on-going State capacity is an important 
outcome of this grant program. This is particularly true for States 
seeking to become waiver States for purposes of the Asbestos Hazard 
Emergency Response Act (AHERA), which means they run the program 
entirely including the enforcement component. The need for such 
intensive interaction both before and during the application process 
makes it impracticable to compete these grants.
    This grant regulatory change is not subject to notice and comment 
requirements under the Administrative Procedures Act or any other 
statute and can be taken by EPA as a final action. Accordingly, the 
text of Sec.  35.312 will read as follows: ``EPA will allot and award 
Toxic Substances Control Act compliance monitoring grant funds to 
States in accordance with national program guidance.'' In addition, EPA 
is renaming the title of this section ``Basis for allotment'' from 
``Competitive process''.
    Statutory and Executive Order Reviews: Under Executive Order 12866 
(58 FR 51735, October 4, 1993), this action is not a ``significant 
regulatory action'' and is therefore not subject to OMB review. Because 
this grant action is not subject to notice and comment requirements 
under the Administrative Procedures Act or any other statute, it is not 
subject to the Regulatory Flexibility Act (5 U.S.C. 601 et. seq.) or 
sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) 
(Pub. L. 104-4). In addition, this action does not significantly or 
uniquely affect small governments. This action does not have tribal 
implications, as specified in Executive Order 13175 (63 FR 67249, 
November 9, 2000). This action will not have federalism implications, 
as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 
This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866. This action 
does not involve technical standards; thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. This action does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The Congressional 
Review Act, 5 U.S.C. 801 et seq., generally provides that before 
certain actions may take affect, the agency promulgating the action 
must submit a report, which includes a copy of the action, to each 
House of the Congress and to the Comptroller General of the United 
States. Since this final grant action contains legally binding 
requirements, it is subject to the Congressional Review Act, and EPA 
will submit this action in its report to Congress under the Act prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 35

    Environmental protection, Administrative practices and procedures, 
Grant programs-environmental protection, Reporting and recordkeeping 
requirements.

    Dated: January 31, 2006.
Stephen L. Johnson,
Administrator.

0
EPA amends 40 CFR part 35 as follows:

PART 35--[AMENDED]

0
1. The authority citation for part 35, subpart A continues to read as 
follows:

    Authority: 42 U.S.C. 7401 et seq.; 33 U.S.C 1251 et seq.; 42 
U.S.C. 300f et seq.; 42 U.S.C. 6901 et seq.; 7 U.S.C. 136 et seq.; 
15 U.S.C. 2601 et seq.; 42 U.S.C. 13101 et seq.; Pub. L. 104-134, 
110 Stat. 1321, 1321-299 (1996); Pub. L. 105-65, 111 Stat. 1344, 
1373 (1997).


0
2. Section 35.312 is revised to read as follows:


Sec.  35.312  Basis for allotment.

    EPA will allot and award Toxic Substances Control Act Compliance 
Monitoring grant funds to States based on national program guidance.

[FR Doc. 06-1309 Filed 2-10-06; 8:45 am]

BILLING CODE 6560-50-P
