[Federal Register Volume 62, Number 72 (Tuesday, April 15, 1997)]
[Notices]
[Pages 18350-18352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-9690]


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ENVIRONMENTAL PROTECTION AGENCY

[OPPTS-211043; FRL-5578-1]


Lead Azide; Response to Citizen's Petition Under TSCA Section 21

Agency: Environmental Protection Agency (EPA).

Action: Notice; Denial of TSCA Section 21 Petition.

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Summary: EPA received a petition under section 21 of the Toxic 
Substances Control Act (TSCA) on May 2, 1996, from a citizen requesting 
that the Agency promulgate a regulation under TSCA section 6 that would 
prohibit the manufacturing, processing, or distribution in commerce of 
lead azide. The petitioner claims that she suffered injuries through 
the use of lead azide to produce a ``special effect'' in filmmaking and 
that manufacture of such substance should be prohibited to prevent 
future human injury. EPA has evaluated the petition and upon further 
consideration, denied it on July 31, 1996.

For Further Information Contact: Susan B. Hazen, Director, 
Environmental Assistance Division (7408), Office of Pollution 
Prevention and Toxics, Environmental Protection Agency, 401 M St., SW., 
Washington, DC 20460, Telephone: 202-260-1404, TDD: (202-554-0551), e-
mail: TSCA-H[email protected].

I. Background

A. Statutory Requirements

    1. TSCA section 21. Section 21 of TSCA, 15 U.S.C. 2620, provides 
that any person may petition EPA to initiate proceedings for the 
issuance, amendment, or repeal of a rule or order under section 4, 5, 
6, or 8 of TSCA, 15 U.S.C. 2603, 2604, 2605, or 2607. As required by 
section 21(b), the petition must set forth the facts that the 
petitioner claims establish the need for the Agency to issue, amend, or 
repeal a rule or order under those sections of TSCA. (See also Guidance 
for Petitioning the Environmental Protection Agency under Section 21 of 
the Toxic Substances Control Act (50 FR 46827, November 13 , 1985). 
Section 21(b) also directs EPA to decide either to grant or deny the 
petition within 90 days after the petition is filed. If EPA denies a 
petition, the Agency must publish the reason(s) for the denial in the 
Federal Register. If the Agency grants the petition, EPA must promptly 
commence an appropriate proceeding in accordance with section 4, 5, 6, 
or 8 of TSCA.
    If EPA denies a petition, or fails to make a decision within the 
90-day review period, the petitioner may, within 60 days from the date 
of the decision or from the end of the review period, commence a civil 
action in a U.S. district court to compel initiation of the requested 
rulemaking. For a petition for a new rule or order, the court must 
provide opportunity for the petition to be considered de novo. Section 
21(b)(4) identifies petitioners' rights and the procedures to be 
followed under such civil action. Relief available under section 21 is 
limited to initiation of a proceeding to issue, amend, or appeal a rule 
under section 4, 6, or 8, or an order under section 5(e) or 6(b)(2).
    2. TSCA section 6. Under section 6 of TSCA, 15 U.S.C. 2605(a), EPA 
may issue rules to limit or prohibit the manufacture, processing, or 
distribution

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in commerce of a chemical substance. To issue a section 6 rule on a 
chemical substance, EPA must find that a reasonable basis exists to 
conclude that the manufacture, processing, distribution in commerce, 
use or disposal of a chemical substance or mixture, or that any 
combination of such activities, presents or will present an 
unreasonable risk of injury to health or the environment. TSCA section 
6 requires EPA to apply the least burdensome requirement to protect 
adequately against the risk. This finding of unreasonable risk is a 
judgement by EPA that the risk of health or environmental injury from a 
chemical substance or mixture outweighs the burden to society for 
potential regulation.

B. Description of Petition and Related Events

    EPA received three copies of similar petitions from the same 
petitioner under section 21 of TSCA on March 29, April 30, and May 2, 
1996, requesting that the Agency promulgate a regulation under TSCA 
section 6 that would prohibit the manufacturing, processing, or 
distribution in commerce of lead azide. The petitioner claims that she 
suffered injuries from the use of lead azide in special effects in 
filmmaking and that, therefore, manufacture of such substance should be 
prohibited to prevent future human injury. The petition claims that 
lead azide is an explosive, carcinogen, a skin and eye irritant, toxic 
to the lungs, kidneys, nervous system, blood and reproductive systems. 
Further, it claims that the decomposition products are fatal if inhaled 
or ingested. Supporting information included files from previous 
litigation activity, references to State and Federal regulations on 
lead azide and use of explosives, and the manufacturer material safety 
data sheets. Additionally, the petition requests that EPA subpoena 
transcripts of earlier Federal and State court proceedings relating to 
the alleged injury.
    Following a May 20 telephone conversation with EPA staff, the 
petitioner agreed that the May 2 petition would be appropriate for 
response. Subsequently, on June 9, 1996, EPA's Office of General 
Counsel received additional litigation files accompanied by a request 
to extend EPA's time to consider the petition, pending a court decision 
on disclosure of information from the petitioner's employer.

II. Disposition of Petition

    EPA denied the requested relief because the petition did not 
include sufficient information to provide a basis for the Agency to 
conclude that an unreasonable risk may exist and that a TSCA section 6 
rule is necessary. Moreover, EPA's review of supplemental information 
did not indicate that a section 6 rule was appropriate. The petition 
was forwarded to the Occupational Safety and Health Administration 
(OSHA) for consideration under Federal labor laws. EPA has notified the 
petitioner of the disposition of the petition by letter dated July 31, 
1996.

A. Issuance of Section 6 Rule

    EPA has reviewed the supporting information included with the 
petition and litigation files, as well as other available information 
on lead azide. The health effects of lead and lead azide are well 
documented in the scientific literature. Lead azide is a skin and eye 
irritant, explosive, a carcinogen, and toxic to the lungs, kidneys, 
nervous system, blood and reproductive systems. Acute exposure to 
extremely high levels of lead can cause encephalopathy which may lead 
to vomiting, seizures, coma, or even death. OSHA has set the 
Permissible Exposure Limit (PEL) for lead at 50ug/m3 of air 
averaged over an 8-hour period (29 CFR 1910.1025). OSHA requires 
protective work clothing for workers exposed to lead compounds such as 
lead arsenate or lead azide, which can cause skin and eye irritation 
(29 CFR 1910.1025, App. B (g)).
    In order to grant a citizen's petition to initiate a TSCA section 6 
action, however, EPA must find ``a reasonable basis to conclude that 
the issuance of such a rule or order is necessary to protect health or 
the environment against an unreasonable risk of injury.'' An important 
factor in determining whether TSCA action is necessary is whether the 
concern is addressed by other federal regulations. The section 21 
petition should include sufficient information to provide a basis for 
the Agency to conclude that an unreasonable risk may exist and that a 
TSCA section 6 rule is necessary to address that risk (50 FR 46827, 
November 13, 1985). This may include data on the nature and severity of 
harm (toxicity) to humans or the environment from the chemical 
substance of concern; exposure data, such as amount of the substance 
released and estimates of magnitude, frequency, duration and route 
(i.e. inhalation, ingestion, or skin absorption) of contact; extent of 
harm the chemical substance of concern presents or may present, and 
possible methods of risk reduction. This data facilitates the Agency's 
efforts in determining whether an unreasonable risk exists, and if 
there is an unreasonable risk posed, arriving at a remedy which imposes 
the smallest social and economic burden possible.
    EPA denied the petition because the petition and litigation files 
do not provide the necessary information, nor does the Agency have an 
independent basis for concluding that TSCA section 6 action is 
necessary to address an unreasonable risk of injury from worker 
exposure to lead azide beyond the protections which may be provided by 
OSHA.

B. Issuance of TSCA Subpoenas

    Under section 11(c) of TSCA, 15 U.S.C. 2610, EPA may issue 
subpoenas to require the attendance and testimony of witnesses and the 
production of reports, papers, documents, answers to questions and 
other information necessary to carry out TSCA. However, in the case at 
hand, EPA does not believe that the petitioner's request for subpoena 
of court transcripts and oral proceedings will provide information 
relevant to determining a basis for unreasonable risk, and is 
therefore, an inappropriate action. In addition, section 21 of TSCA 
does not prescribe EPA's use of subpoena authority as a form of relief 
available to petitioners.

C. OSHA Transmittal

    Currently, occupational exposure to lead azide is regulated by OSHA 
under 29 CFR 1910.1025. Under appendix B (g), workers exposed to lead 
above the OSHA PEL, or workers exposed to lead compounds such as lead 
azide, which can cause skin and eye irritation, must be provided with 
protective work clothing and equipment appropriate for the hazard at no 
cost to the employee. The employer is required to provide information 
and training programs for all employees who may be exposed to lead 
above the action level or who may suffer skin or eye irritation from 
lead. In addition the employer must make readily available to all 
employees including those exposed below the action level, a copy of the 
standard and its appendices and must distribute to all employees any 
materials provided to the employer by OSHA.
    EPA has not determined that the use of lead azide described in the 
petition poses an unreasonable risk, after consideration of all 
relevant factors. However, the Agency does believes that the situation 
raises sufficient issues to warrant OSHA notification. After thorough 
examination of OSHA's standards and discussions with OSHA staff, EPA 
believes that as a worker in the film industry, the petitioner is 
protected by OSHA standards and that

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the petitioner's concerns about the use of lead azide in the workplace 
are appropriately addressed by OSHA regulations. The Agency has no 
information to indicate that further regulation is necessary beyond the 
protections provided by OSHA.

D. Extension of 90-Day Review

    EPA denied the petitioner's request to extend EPA's time to 
consider the petition. The Agency has no reason to believe that the 
information held by the petitioner's employer will supply the necessary 
data on the nature and severity of harm (toxicity) to humans or the 
environment, exposure data, extent of harm, or possible methods of risk 
reduction necessary to change the Agency's assessment that this is an 
issue appropriately addressed by OSHA.

III. Public Record

    EPA established a public record of its response to this petition 
under docket control number OPPTS-211043. The public record contains 
the petition, response and the basic information considered by EPA in 
reaching its decision in this matter. All documents, including the 
index of the docket, are available to the public in EPA's TSCA 
Nonconfidential Information Center (NCIC) from noon to 4 p.m., Monday 
through Friday, excluding legal holidays. The NCIC is located at EPA 
Headquarters, Rm. B607, 401 M St., SW., Washington, DC 20460.

List of Subjects

    Environmental protection.

    Dated: April 4, 1997.
Lynn R. Goldmann,
Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.

[FR Doc. 97-9690 Filed 4-14-97; 8:45 am]
BILLING CODE 6560-50-F