Document ppagpE3DXL2XmRX8Ko5Qkd1y6

JOSEPH E.KELLER JEROME H. HECKMAN CHARLES M. MEEHAN . WILLIAM H. BORGHESANI, JR ROBERT R. TIERNAN . wayne v. black David l. hill MARTIN W. BERCOVICI JOHN S. ELDRED CAROLE C. HARRIS MICHAEL F. MORRONE LARRY S. SOLOMON JOHN B: DUB EC K CHRISTINE A. MEAGHER PETER L. DE LA CRUZ * SHIRLEY S-FUJIMOTO LAWRENCE P. HALPRIN DEBORAH SHUR TRINKER C. DOUGLAS JARRETT EDWARD L. KORWEK ROBERT L. FLESHNER * * LAW OFFICES Keller and Heckman 1150 17TM STREET, N. W. SUITE IOOO WASHINGTON, D. C. 20036 November 18, 1980 202-457-1100 CABLE ADDRESS"KELMAN" c -/ WRITER'S DIRECT DIAL NUMBER (202) 457-1114 * ohio bar only ** VA. BAR ONLY To: SPI-Food, Drug and Cosmetic Packaging Materials Committee Re: Polychlorinated Biphenyls; Informal Public Meeting Ladies and Gentlemen: On November 7, 1980, the United States Department of Agriculture (USDA), the Food and Drug Administration (FDA) and the .Environmental Protection Agency (EPA) held a joint infor mal public meeting in connection with the proposals put out by the three agencies to require additional controls on equipment containing polychlorinated biphenyls (PCBs). As explained in our letter of November 3, 1980, I attended this meeting as an observer on behalf of The Society. Since only one speaker spoke on behalf of the Agencies' positions and recommended promulgation of the regulations substantially as proposed, there was no great need for any floor presentation. Of course, SPI will present its full comments in writing in a timely fashion; closing date is now set for December 4, 1980, but is subject to further postponement. At the very start of the hearing, Mr. Gunter,.speaking for EPA called attention to the recent decision of the United States Court of Appeals for the District of Columbia Circuit. The Environmental Defense fund (EDF) had claimed that EPA had no authority in the case of EDF v. EPA to set 50 parts per million (ppm) of PBC content as a cut-off point in defining,a PCB. Rather, EDF argued that substances containing any quan| tity of PBCs must be deemed to be PCBs and handled accord ingly. The court remanded this aspect of the current EPA I regulations (40 C.F.R. 761) for further action by the Admin- PCB-ARCH-EXT0377988 November 18., 1980 Page Two Kellek and Heckman istrator. In addition, the court also r-emanded that portion of the regulations dealing with "totally enclosed" uses of PCBs. The effect of the court of appeals decision on the'sub ject proposed rule making was considered to be outside the scope of the hearing. Other than acknowledging the fact that it probably would have an effect, particularly with regard to the possibility of "retrofitting" PCB-contaminated equipment, the matter was administratively ignored for the hearing pur poses. . We are enclosing a copy of the panel and witness list distributed at' the meeting. The names and identifications of the participants are quite reliable except that Joseph P. Hile did not appear (Taylor Quinn of the Bureau of Foods repre sented FDA at both the morning and afternoon sessions) and Mr. Jeffrey Miller of Nabisco, Inc. did not participate in the Grocery Manufacturers of America panel. In a few cases, the sequence of presentations varied from that shown, but on the whole, the hearing followed the schedule. We have copies of prepared statements from some of the participants and will be glad to send them to those, of you who so request. All participants, except for Tom Smith of the Commun ity Nutrition Institute, urged reconsideration of the proposed regulations in whole or in part. For the most part, the basis for the reconsideration was that electrical transformers "in and about" food, feed, and food- and feed- packaging materials plants do not pose equal risks of contamination of food and feed. Indeed, there was general agreement that in many cases the risks associated with precipitious removal and/or drainage of equipment, combined with the problems attendent upon stor age and ultimate shipment of PCBs to the as yet unidentified disposal sites posed far greater hazards than properly main tained. equipment "in and about" the various plants. Evidence was presented concerning increased fire risks due to the re placement of PCBs and some comments were offered for the rec ord to the effect that replacement fluids would cause a loss of electrical efficiency. A good deal of7 testimony was pro vided regarding the impossibility of supplying replacement transformers and capacitors within the specified six month period and there was almost unanimous agreement that there was no substantiation of the need to include packaging materials manufacturing plants within the scope.of the regulations. PCB-ARCH-EXT0377989 November 18, 1980 Page Three Keller and Heckman For completeness, we should mention that the Community Nutrition Institute commented that PCBs are toxic, pose a. grave hazard to the population at large and should be removed from the food plants at least, the world if.possible, and promptly;, six months was not considered to be an unreasonable time to accomplish this necessary and desirable goal. As a result of informal discussions during the hear ing, reinforced by post-hearing information from various con tacts at the Agencies and elsewhere, we now consider it likely that the Agency would grant additional time for comments if it were requested. Indeed, there was a strong implication that if additional time were granted, the proposal might either be withdrawn or, more likely, quietly allowed to die with no fur ther action taken. We trust you will find this letter sufficiently com plete to provide a useful summary of the informal hearing ac tivities. In addition to supplying copies of some of the pa per, we will be happy to answer any questions regarding the presentations. Please do not hesitate to contact us if there is anything we can do in these respects. . Cordially yours, . Enclosure PCB-ARCH-EXT0377990 PCB INFORMAL PUBLIC MEETING US DA, Room 218A November 7, 1980 PANEL Thomas P. Crumbly, Associate Administrator Food Safety and Quality Service U. S. Department of Agriculture Dr. Merlin Nelson, Associate Deputy Administrator Meat and Poultry Inspection . Food Safety and Quality Service U. S. Department of Agriculture Taylor Quinn, Associate Director, for Compliance Bureau of Foods. . . . Food and Drug Administration ' Joseph P. Hile, Associate Commissioner for Regulatory Affairs Food and Drug Administration J. William Gunter, PCB Team Leader Environmental Protection Agency WITNESS LIST ' 10:15 - 10:30 10:30 - 10:45 10:45 - 11:00 11:00-11:15 'll J. 15 - 11:30 Laurie Burg, Staff Counsel Scientific Affairs Grocery Manufacturers of America Accompanied by Howard Brown, Director Environmental Control Kraft, Inc. Jeffrey Miller, Supervisor, Engineer Nabisco, Inc. Jerry Norchia, Vice President Fluids Division RTE Corporation George Tietelbaum, Director Glass Technology & Design Glass Packaging Institute Tom Smith Community Nutrition Institute Harold Latourette FMC Corporation 11:30 - 11:45 Harry Onishi, Utility Solid Waste Activities Group, Edison Electric Institute, National Rural Electrical Coop Association 11:45 - 12:00 QUESTIONS AND ANSWERS 12:00-1:00 LUNCH 1:00 - 1:15 Susan Boolukos American Frozen Food Institute 1:15 - 1:30 R. Gerald McDermott National Coffee Association 1:30 - 1:45 Ed Perry National Coffee Association 1 :45 - 2:00 Dennis Jones . J. R. Simplot Company . 2:00 - 2:15 David McNair Allied Mills, Inc. 2:15 - 2:30 Clarence Sprague National Food Processors Association 2:30 - 2:45 . Dr. B. Frank Vincent American Paper Institute 2:45 - 3:00 L. J. Moore ' Paper Packaging Council ' 3:00 - 3:15 - . i Richard A. Lillquist Flexible Packaging Association 3:00 - 3:16 Thomas Muldoon, Executive Vice President Fiber Box Association 3:15 - 3:30 Ford West, Director of Member Services Fertilizer Institute 3:30 - 3:45 Roger Ambros, Director of Engineering AgWay Inc. 3:45 - 4:00 QUESTIONS AND ANSWERS PCB-ARCH-EXT0377992