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Federal Register / Vol. 86, No. 97 / Friday, May 21, 2021 / Proposed Rules chemical substance or mixture is necessary to develop the missing information. 15 U.S.C. 2603a1Aii.
4. Legal Standard Regarding TSCA
Section 26
TSCA section 26h requires EPA, in carrying out TSCA sections 4, 5, and 6, to make science-based decisions using scientific information, technical procedures, measures, methods, protocols, methodologies, or models, employed in a manner consistent with the best available science, while also taking into account other considerations, including the relevance of information and any uncertainties. 15
U.S.C. 2625h. TSCA section 26i requires that decisions under TSCA
sections 4, 5, and 6 be based on the weight of scientific evidence. 15 U.S.C.
2625i. TSCA section 26k requires that EPA consider information that is reasonably available in carrying out TSCA sections 4, 5, and 6. 15 U.S.C.
2625k.

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5. Legal Standard Regarding Mixtures Under TSCA Section 4a1B and Section 21b4.
In the case of a mixture, per TSCA
section 4a1B, EPA must also find that the effects which the mixtures manufacture, distribution in commerce, processing, use, or disposal, or any combination of such activities, may have on health or the environment may not be reasonably and more efficiently determined or predicted by testing the chemical substances which comprise the mixture. 15 U.S.C. 2603a1B. In addition, TSCA section 21 establishes standards a court must use to decide whether to order EPA to initiate rulemaking in the event of a lawsuit filed by the petitioner after denial of a TSCA section 21 petition. 15 U.S.C.
2620b4B. EPA believes TSCA
section 21b4 does not provide for judicial review of a petition to promulgate a test rule for mixtures.
TSCA section 21b4Bi specifies that the courts review pertains to application of the TSCA section 4
factors to chemical substances.
Moreover, TSCA section 21b4Bi does not contain the additional finding that TSCA section 4 requires for issuing a test rule for mixtures that the effect may not be reasonably and more efficiently determined or predicted by testing the chemical components.
Congress left the complex issues associated with the testing of mixtures to the Administrators discretion.

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II. Summary of the TSCA Section 21
Petition A. What action was requested?
On February 8, 2021, the People for Protecting Peace River, Atchafalaya Basinkeeper, Bayou City Waterkeeper, Calusa Waterkeeper, Center for Biological Diversity, Cherokee Concerned Citizens, Healthy Gulf, ManaSota-88, Our Santa Fe River, RISE
St. James, Sierra Clubs Florida and Delta chapters, Suncoast Waterkeeper, Suwanee Riverkeeper, Tampa Bay Waterkeeper, Waterkeeper Alliance, Waterkeepers Florida, and WWALS
Watershed Coalition the petitioners requested EPA to take several actions under section 7004a of RCRA; section 21 of TSCA; and section 553 of the APA
related to phosphogypsum and process wastewater from phosphoric acid production process wastewater. With respect to TSCA, the petition asks EPA
to 1 initiate the prioritization process for designating phosphogypsum and process wastewater as high-priority substances for risk evaluation under TSCA section 6b1Bi, 2 issue a test rule under TSCA section 4a1A
requiring phosphogypsum and process wastewater manufacturers to develop information with respect to health and environmental effects relevant to a determination that the disposal of these chemical substances does or does not present an unreasonable risk of injury to health or the environment, and 3 make a determination by rule under TSCA
section 5a that the use of phosphogypsum in road construction is a significant new use. This Federal Register document specifically addresses the petitioners TSCA section 21 petition, requesting EPA to issue a test rule under TSCA section 4a1A.
As described in Unit II.A.1 and II.A.2, this Federal Register document does not address the TSCA-requested actions which cannot be addressed under TSCA
section 21 i.e., action under TSCA
section 6b1Bi and section 5a, and EPA will consider taking such action in response to those requests, as appropriate, under the APA. This Federal Register document also does not address the petitioners requests under section 7004a of RCRA.
1. Request for Prioritization Under TSCA Section 6 and Related Testing Under TSCA section 4a2B
With respect to actions under section 6 of TSCA, TSCA section 21 provides only for the submission of a petition seeking the initiation of a proceeding for the issuance, amendment, or repeal of a rule under TSCA section 6a.
Prioritization under TSCA section 6b
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is distinct from rulemaking under TSCA
section 6a. Because TSCA section 21
does not provide an avenue for petitioners to request the initiation of the prioritization process for phosphogypsum and process wastewater, EPA is treating this portion of the request as a petition for action under the APA.
Petitioners also assert that should EPA initiate prioritization but find that the development of new information is necessary to finalize a prioritization decision for phosphogypsum and process wastewater, EPA should exercise its authority under section 4a2B to obtain that information and establish priority Ref. 1, page 41.
Because EPA is not addressing the request for prioritization as part of this petition response and has not otherwise initiated prioritization on phosphogypsum or process wastewater, the Agency is not in a position to exercise its authority under TSCA
section 4a2B in the manner and for the reason described by petitioners.
2. Request for Significant New Use Rule Under TSCA Section 5
TSCA section 21 does not provide for the submission of a petition seeking the initiation of a rule under TSCA section 5. Significant new use rules are issued under the authority of TSCA section 5a2. Since TSCA section 21 does not provide an avenue for petitioners to request the initiation of a proceeding to make a determination by rule under TSCA section 5a, EPA is treating this portion of the request as a petition for action under the APA.
3. Request for Issuance of a Test Rule Under TSCA Section 4a1A
TSCA section 21 does provide for the submission of a petition seeking issuance of a test rule under TSCA
section 4a1A. Therefore, this Federal Register document specifically addresses the only request permissible under TSCA section 21, requesting EPA
to issue a test rule under TSCA section 4a1A.
4. Request Under RCRA Section 7004a This Federal Register document does not address the petitioners requests under section 7004a of RCRA.
5. Request Under APA Section 553e This Federal Register document does not address the petitioners requests under section 553e of the APA.
B. What support did the petitioners offer?
The petitioners are not clear as to the provision of TSCA section 4a1A

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