[Federal Register: August 29, 2005 (Volume 70, Number 166)]
[Notices]
[Page 51061-51064]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29au05-54]
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ENVIRONMENTAL PROTECTION AGENCY
[OPPT-2005-0032; FRL-7730-7]
TSCA Section 21 Petition; Response to Citizen's Petition
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: On May 13, 2005, the Ecology Center of Ann Arbor, Michigan,
petitioned EPA under section 21 of the Toxic Substances Control Act
(TSCA) to establish regulations prohibiting the manufacture,
processing, distribution in commerce, use, and improper disposal of
lead wheel balancing weights. For the reasons set forth in this notice,
EPA has denied the petition to initiate rulemaking. In this notice, the
Agency elaborates the reasons for its denial and the type of
information it may need.
FOR FURTHER INFORMATION CONTACT: For general information contact: Colby
Lintner, Regulatory Coordinator, Environmental Assistance Division
(7408M), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1401; e-mail address:
TSCAHotline@epa.gov.
For technical information contact: Dave Topping, National Program
Chemicals Division (7404T), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number: (202) 566-1974; e-mail
address:topping.dave@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
You may potentially be affected by this action if you manufacture,
import, process, use, distribute, or dispose of lead wheel balancing
weights or are an automobile tire retailer. Since other entities may
also be interested, the Agency has not attempted to describe all the
specific entities that may be affected by this action. If you have any
questions regarding the applicability of this action to a particular
entity, consult the technical person listed under FOR FURTHER
INFORMATION CONTACT.
B. How Can I Get Copies of this Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under docket identification (ID) number OPPT-2005-0032. The
official public docket consists of the documents specifically
referenced in this action, any public comments received, and other
information related to this action. Although a part of the official
docket, the public docket does not include Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. The official public docket is the collection of materials
that is available for public viewing at the EPA Docket Center, Rm.
B102-Reading Room, EPA West, 1301 Constitution Ave., NW., Washington,
DC. The EPA Docket Center is open from 8:30 a.m. to
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4:30 p.m., Monday through Friday, excluding legal holidays. The EPA
Docket Center Reading Room telephone number is (202) 566-1744, and the
telephone number for the OPPT Docket, which is located in the EPA
Docket Center, is (202) 566-0280.
2. Electronic access. You may access this Federal Register document
electronically through the EPA Internet under the``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, to access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Although not all docket materials may be
available electronically, you may still access any of the publicly
available docket materials through the docket facility identified in
Unit I.B.1. Once in the system, select ``search,'' then key in the
appropriate docket ID number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the system will identify whether the
document is available for viewing in EPA's electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified in Unit I.B.1. EPA intends to work
toward providing electronic access to all of the publicly available
docket materials through EPA's electronic public docket.
II. Background
A. What is a TSCA Section 21 Petition?
Section 21 of TSCA allows citizens to petition EPA to initiate a
proceeding for the issuance, amendment, or repeal of a rule under TSCA
section 4, 6, or 8 or an order under section 5(e) or 6(b)(2). A TSCA
section 21 petition must set forth facts that the petitioner believes
establish the need for the action requested. EPA is required to grant
or deny the petition within 90 days of its filing. If EPA grants the
petition, the Agency must promptly commence an appropriate proceeding.
If EPA denies the petition, the Agency must publish its reasons for the
denial in the Federal Register. Within 60 days of denial, or the
expiration of the 90-day period, if no action is taken, the petitioners
may commence a civil action in a U.S. District Court to compel
initiation of the requested rulemaking proceeding.
B. What Action is Requested Under This TSCA Section 21 Petition?
On May 13, 2005, EPA received a petition under TSCA section 21 from
the Ecology Center of Ann Arbor, Michigan. The petition requests that
EPA initiate a rulemaking under TSCA section 6(a)(1)(A) to prohibit the
manufacture, processing, distribution in commerce, use, and improper
disposal of lead wheel balancing weights.
To promulgate a rule under TSCA section 6(a), EPA must find that
there is a ``reasonable basis to conclude'' that activities involving a
chemical substance or mixture present or will present ``an unreasonable
risk of injury to health or the environment.'' It is important to note
that TSCA section 6 does not require a factual certainty, but only a
``reasonable basis to conclude'' that a risk is unreasonable. The
legislative history of TSCA makes it clear that EPA may take regulatory
action to prevent harm even though there are uncertainties as to the
threshold levels of risk. Congress recognized that ``such action must
be based not only on consideration of facts but also on consideration
of scientific theories, projections of trends from currently available
data, modeling using reasonable assumptions, and extrapolations from
limited data.'' (H.R. Rep. No. 1341, 94th Cong., 2d Sess. 32 (1976).)
Although TSCA uses unreasonable risk as its basic standard for
deciding on appropriate action regarding the manufacture, processing,
distribution in commerce, use, or disposal of a chemical substance or
mixture, TSCA does not define the term ``unreasonable risk.'' Guidance
is provided by section 6(c), which requires certain considerations in
promulgating a rule under section 6(a). EPA must consider the
following: (1) The effects of the chemical on health and the magnitude
of human exposure; (2) the effects of the chemical on the environment
and the magnitude of environmental exposure; (3) the benefits of the
chemical for various uses and the availability of substitutes for such
uses; and (4) the reasonably ascertainable economic consequences of the
rule, after consideration of the effect on the national economy, small
business, technological innovation, the environment, and public health.
Section 6(c) offers no further guidance to decision-makers. In
particular, it does not discuss how each of these factors is to be
weighed in relationship to each other. However, the House Report on
TSCA (H.R. Rep. No. 1341, 94th Cong., 2d Sess. 13-15 (1976)) provides a
useful pertinent explanation. The House Report describes the finding of
unreasonable risk as involving a balancing of the probability that harm
will occur, and the magnitude and severity of that harm, against the
adverse effects (social and economic) on society of the proposed Agency
action to reduce the harm.
III. Disposition of Petition
EPA finds that there are insufficient data available for the Agency
to initiate a TSCA section 6 rulemaking at this time. EPA has reviewed
the supporting information included with the petition, as well as other
available information on lead wheel balancing weights. The petition
contains very limited, uncertain evidence on the potential
environmental releases from lead wheel balancing weights to the air,
surface water, ground water, and soil (particularly regarding potential
releases in the proximity of roadways and potential releases to
particularly sensitive environments or human and ecological
populations). Some estimates of potential releases of lead from lead
wheel balancing weights to the environment are available within
references noted within the petition, or within other sources available
in the literature. However, EPA needs additional, verifiable data in
order to develop an adequate understanding of the environmental and
human exposure associated with releases to the environment from lead
wheel balancing weights.
While the hazard of lead and the fate and transport of lead in the
environment are well-characterized, without additional information EPA
cannot adequately estimate potential exposures and, thus, potential
risks. A literature search conducted by the Agency identified little
data beyond that cited by the petitioner. In particular, EPA is
interested in the following data:
The number of sites and number of workers involved in the
manufacture, processing, recycling, use, and disposal of lead wheel
balancing weights, and any associated exposure of workers to lead.
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Quantities and releases of lead from the point of
manufacture of lead wheel weights to the point of deposition on
roadways.
Whether abrasion of lead wheel balancing weights occurs on
the road, and if so, the extent of the abrasion and the mass of lead
lost from the abrasion.
The contribution of lead from wheel balancing weights to
the overall levels of lead near roadways.
The quantity of lead from lead wheel balancing weights
deposited on roadways that subsequently enters various environmental
pathways.
The percentage of deposited lead that enters each pathway
(to determine which pathways are of concern).
The number of salvage yards, automobile shredders, steel
mills, and secondary smelting sites and the quantities of lead that are
released from recycling and disposal of lead wheel weights.
Exposures to hobbyists who melt lead wheel weights to
manufacture other items such as fishing sinkers, toy soldiers, and
bullets.
While the Agency does not believe information in all of these areas
would be necessary, the data currently available are not adequate in
any of these areas to support granting the petition or initiating the
requested rulemaking; there is insufficient information to adequately
estimate potential risks for any one exposure pathway.
In evaluating the petition, the Agency assessed a number of
plausible exposure scenarios and associated releases of lead from lead
wheel balancing weights in order to identify specific data gaps that
should be filled in order to allow a meaningful, realistic assessment
of risk. The data gaps are summarized above and the details are
presented in the following documents, which are found in the public
docket for today's notice:
Preliminary Exposure Assessment Support Document for the
TSCA Section 21 Petition on Lead Wheel-Balancing Weights, Office of
Pollution Prevention and Toxics, U.S. Environmental Protection Agency.
Occupational Exposures and Environmental Releases of Lead
Wheel-Balancing Weights, Office of Pollution Prevention and Toxics,
U.S. Environmental Protection Agency.
In addition, the data that are available have significant
uncertainties and limitations. The analyses provided by the petitioner
in support of statements regarding potential exposure raise several
concerns, including: (1) Limitations in scope, both geographically and
temporally; (2) potential limitations in the calculated lead wheel
balancing weight releases during the weekly surveys that supported
these analyses; (3) lack of data on potential routes of exposure from
roadways to humans and the environment; and (4) lack of data on lead in
soil, dust, and water near the test area to help establish a link
between lead wheel balancing weights and measured lead in the
environment.
Consequently, the Agency concludes that there are currently not
enough data on human or environmental exposures to adequately assess
the risks from the manufacturing, processing, distribution in commerce,
use, or improper disposal of lead wheel balancing weights, and to
initiate a TSCA section 6 rulemaking to prohibit these activities, as
requested by the petitioner. In addition, due to the data limitations,
the Agency has no basis to determine how significant the contribution
of lead to the environment from wheel weights is and whether a
rulemaking to address lead wheel weights would be an effective use of
Agency resources.
However, while EPA cannot at present initiate a rulemaking under
TSCA section 6, the Agency is concerned about the potential
contribution of lead wheel weights and other products that contain lead
to elevated blood lead levels in children. Nationally, the primary
source of elevated blood lead levels in children is lead-based paint
used before the product was banned in 1978. There are other sources,
however, which may contribute to elevated blood lead levels, perhaps
significantly. These sources include certain products that contain lead
(such as wheel weights), historical contamination of soil, certain
foods and folk remedies that contain lead, and releases from stationary
sources. (For more information, seehttp://www.cdc.gov/nceh/lead/faq/about.htm.
) As part of the Federal Government's effort to meet its goal
to eliminate lead poisoning in children by 2010, EPA is working with
the Centers for Disease Control and Prevention and other Federal
Partners to characterize and address these other sources of lead
exposure in children. As part of its focus on children's exposure to
lead, EPA is developing an approach to prioritize for further analysis
and action the variety of products containing lead, that would be
subject to TSCA and/or voluntary initiatives, including lead wheel
weights.
IV. Comments Received
EPA received nine comments in response to the Federal Register
notice published June 21, 2005 (70 FR 35667) (FRL-7720-5), announcing
EPA's receipt of this TSCA section 21 petition.
Three comments were received from members of the public and one
from an environmental organization (The Department of the Planet Earth)
supporting the petition. These commenters cited the toxicity of lead.
None provided any technical data regarding exposure to lead from wheel
balancing weights.
Two States (Maine and Minnesota) submitted comments and supported
the petition. The State of Maine noted that State water quality data
indicate many locations where lead in road and parking lot runoff
exceed Ambient Water Quality Standards. This commenter stated that lead
is a persistent, bioaccumulative toxic chemical and that a transition
to non-lead wheel weights would be a good practical step if less-toxic
alternatives are cost effective and available. However, the comment
provided no basis for attributing the lead in road and parking lot
runoff to wheel weights. The Minnesota Office of Environmental
Assistance noted that their State fleet of vehicles had participated in
a pilot project to evaluate alternative wheel balancing weights and
believes that the lead weights could be replaced with alternatives.
They also noted their concern with exposures to people who make
products from used lead wheel balancing weights and problems with lead
in the waste streams from electric arc furnaces that recycle scrap
automobiles.
Three trade associations submitted comments. The Association of
Battery Recyclers (ABR) and the Tire Industry Association opposed the
petition on the basis that no information is available to demonstrate
any exposure to lead from wheel balancing weights. The Steel
Manufacturers Association supports the petition, noting that a
prohibition would reduce the contamination of scrap metal feedstock
with lead, which contributes to the hazardous waste stream from
electric arc furnaces that process scrap automobiles. They provided no
information on lead exposure from wheel balancing weights.
BFS Retail Commercial Operations, LLC, which operates more than
2,200 consumer and commercial vehicle service and tire locations across
the United States and Canada, commented that it did not support a ban
on lead wheel balancing weights at this time. The commenter opined that
there is a lack of substitute materials readily available in the
marketplace, a lack of manufacturing capacity for such substitutes, and
a lack of consensus in the industry on substitute materials that
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would be likely to lead to confusion and additional costs in the
marketplace. Further, the commenter noted a lack of basic research on
the environmental consequences of substitute materials and their
effectiveness as a replacement for lead in wheel balancing weights.
ABR initially requested an extension of the comment period but
later timely submitted its comments. EPA has considered these comments
in responding to the petition.
List of Subjects
Environmental protection.
Dated: August 10, 2005.
Susan B. Hazen,
Acting Assistant Administrator, Office of Prevention, Pesticides and
Toxic Substances.
[FR Doc. 05-17129 Filed 8-26-05; 8:45 am]
BILLING CODE 6560-50-S