[Federal Register Volume 70, Number 166 (Monday, August 29, 2005)]
[Notices]
[Pages 51061-51064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17129]


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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: 
<a href="/cdn-cgi/l/email-protection#580c0b1b1910372c3431363d183d2839763f372e"><span class="__cf_email__" data-cfemail="73272030323b1c071f1a1d16331603125d141c05">[email protected]</span></a>.
    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:<a href="/cdn-cgi/l/email-protection#5e2a312e2e373039703a3f283b1e3b2e3f70393128"><span class="__cf_email__" data-cfemail="7f0b100f0f161118511b1e091a3f1a0f1e51181009">[email protected]</span></a>.

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

[[Page 51062]]

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:
    <bullet> 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.

[[Page 51063]]

    <bullet> Quantities and releases of lead from the point of 
manufacture of lead wheel weights to the point of deposition on 
roadways.
    <bullet> 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.
    <bullet> The contribution of lead from wheel balancing weights to 
the overall levels of lead near roadways.
    <bullet> The quantity of lead from lead wheel balancing weights 
deposited on roadways that subsequently enters various environmental 
pathways.
    <bullet> The percentage of deposited lead that enters each pathway 
(to determine which pathways are of concern).
    <bullet> 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.
    <bullet> 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:
    <bullet> 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.
    <bullet> 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

[[Page 51064]]

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


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