[Federal Register Volume 67, Number 10 (Tuesday, January 15, 2002)]
[Proposed Rules]
[Pages 1937-1945]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-963]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 721

[OPPTS-50640; FRL-6745-7]
RIN 2070-AB27


Proposed Significant New Uses of Certain Chemical Substances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing this significant new use rule (SNUR) under 
section 5(a)(2) of the Toxic Substances Control Act (TSCA) for the 
following six chemical substances: C.I. Pigment Orange 20 (CAS No. 
12656-57-4); Chromic Acid, Lead(2+) Salt (1:1) (CAS No. 7758-97-6); 
Chromium Lead Molybdenum Oxide (CAS No. 12709-98-7); Lead Molybdenum 
Oxide (CAS No. 10190-55-3); Sulfuric Acid, Lead(2+) Salt (1:1) (CAS No. 
7446-14-2); and C.I. Pigment Red 104 (CAS No. 12656-85-8). This action 
proposes to require persons who intend to manufacture, import, or 
process any of these chemical substances for use in aerosol spray paint 
for non-industrial, indoor spray application to notify EPA at least 90 
days before commencing such activities. The required notification would 
provide EPA with the opportunity to evaluate the intended use, and if 
necessary, prohibit or limit that activity before it occurs.

DATES: Comments, identified by the docket control number OPPTS-50640, 
must be received by EPA on or before March 18, 2002.

ADDRESSES: Comments may be submitted by mail, electronically, or in 
person. Please follow the detailed instructions for each method as 
provided in Unit I. of the SUPPLEMENTARY INFORMATION. To ensure proper 
receipt by EPA, it is imperative that you identify docket control 
number OPPTS-50640 in the subject line on the first page of your 
response.

FOR FURTHER INFORMATION CONTACT: For general information contact: 
Barbara Cunningham, Acting Director, Environmental Assistance Division, 
Office of Pollution Prevention and Toxics (7401), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; 
telephone number: (202) 554-1404; e-mail address: [email protected].
    For technical information contact: Joe B. Boyd, Chemical Control 
Division, (7405), Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: (202) 260-3563 or (540) 778-
4609; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    You may be potentially affected by this action, if finalized, if 
you manufacture, import, or process the chemical substances addressed 
in this proposed rule. In addition, these are

[[Page 1938]]

reporting requirements for exporters of these substances. Potentially 
affected categories and entities may include, but are not limited to:

    Table 1.--Entities Potentially Affected by the SNUR Requirements
------------------------------------------------------------------------
                                                         Examples of
           Categories                NAICS codes         potentially
                                                      affected entities
------------------------------------------------------------------------
Chemical manufacturers,          325                 Persons who
 importers, or processors                             manufacture,
                                                      defined by statute
                                                      to include import
                                                      or process, one or
                                                      more of the
                                                      subject chemical
                                                      substances
Chemical exporters               325                 Persons who export,
                                                      or intend to
                                                      export, one or
                                                      more of the
                                                      subject chemical
                                                      substances
------------------------------------------------------------------------

    This listing is not intended to be exhaustive, but rather provides 
a guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in Table 1 of this unit 
could also be affected. The North American Industrial Classification 
System (NAICS) codes have been provided to assist you and others in 
determining whether or not this action applies to certain entities. To 
determine whether you or your business could be affected by this 
action, you should carefully examine the proposed rule and the 
applicability provisions in 40 CFR 721.5. 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 Additional Information, Including Copies of this 
Document and Other Related Documents?

    1. Electronically. You may obtain copies of this document, and 
certain other related documents that might be available electronically, 
from the EPA Internet Home Page at http://www.epa.gov/. To access these 
documents, on the Home Page select ``Laws and Regulations,'' 
``Regulations and Proposed Rules,'' and then look up the entry for this 
document under the ``Federal Register--Environmental Documents.'' You 
can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/. A frequently updated electronic version of 40 
CFR part 721 is available at http://www.access.gpo.gov/nara/ cfr/
cfrhtml_00/Title_ 40/40cfr721_00.html, a beta site currently under 
development.
    2. In person. The Agency has established an official record for 
this action under docket control number OPPTS-50640. The official 
record consists of the documents specifically referenced in this 
action, any public comments received during an applicable comment 
period, and other information related to this action, including any 
information claimed as Confidential Business Information (CBI). This 
official record includes the documents that are physically located in 
the docket, as well as the documents that are referenced in those 
documents. The public version of the official record does not include 
any information claimed as CBI. The public version of the official 
record, which includes printed, paper versions of any electronic 
comments submitted during an applicable comment period, is available 
for inspection in the TSCA Nonconfidential Information Center, North 
East Mall Rm. B-607, Waterside Mall, 401 M St., SW., Washington, DC. 
The Center is open from noon to 4 p.m., Monday through Friday, 
excluding legal holidays. The telephone number for the Center is (202) 
260-7099.

C. How and to Whom Do I Submit Comments?

    You may submit comments through the mail, in person, or 
electronically. To ensure proper receipt by EPA, it is imperative that 
you identify docket control number OPPTS-50640 in the subject line on 
the first page of your response.
    1. By mail. Submit your comments to: Document Control Office 
(7407), Office of Pollution Prevention and Toxics (OPPT), Environmental 
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460.
    2. In person or by courier. Deliver your comments to: OPPT Document 
Control Office (DCO) in East Tower Rm. G-099, Waterside Mall, 401 M 
St., SW., Washington, DC. The DCO is open from 8 a.m. to 4 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
DCO is (202) 260-7093.
    3. Electronically. You may submit your comments electronically by 
e-mail to: [email protected], or mail your computer disk to the address 
identified above. Do not submit any information electronically that you 
consider to be CBI. Electronic comments must be submitted as an ASCII 
file avoiding the use of special characters and any form of encryption. 
Comments will also be accepted on standard disks in WordPerfect 6.1/8.0 
or ASCII file format. All comments in electronic form must be 
identified by docket control number OPPTS-50640. Electronic comments 
may also be filed online at many Federal Depository Libraries.

D. How Should I Handle CBI That I Want to Submit to the Agency?

    Do not submit any information electronically that you consider to 
be CBI. You may claim information that you submit to EPA in response to 
this document as CBI by marking any part or all of that information as 
CBI. Information so marked will not be disclosed except in accordance 
with procedures set forth in 40 CFR part 2. In addition to one complete 
version of the comment that includes any information claimed as CBI, a 
copy of the comment that does not contain the information claimed as 
CBI must be submitted for inclusion in the public version of the 
official record. Information not marked confidential will be included 
in the public version of the official record without prior notice. If 
you have any questions about CBI or the procedures for claiming CBI, 
please consult the technical person listed under FOR FURTHER 
INFORMATION CONTACT.

E. What Should I Consider as I Prepare My Comments for EPA?

    We invite you to provide your views on the various options we 
propose, new approaches we haven't considered, the potential impacts of 
the various options (including possible unintended consequences), and 
any data or information that you would like the Agency to consider 
during the development of the final action. You may find the following 
suggestions helpful for preparing your comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide copies of any technical information and/or data you used 
that support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at the estimate that you provide.
    5. Provide specific examples to illustrate your concerns.

[[Page 1939]]

    6. Offer alternative ways to improve the proposed rule.
    7. Make sure to submit your comments by the deadline in this 
document.
    8. To ensure proper receipt by EPA, be sure to identify the docket 
control numberassigned to this action in the subject line on the first 
page of your response. You mayalso provide the name, date, and Federal 
Register citation.

II. Background

A. What Action is the Agency Taking?

    This proposed SNUR would require persons to notify EPA at least 90 
days before commencing the manufacturing, importing, or processing of 
any amount of one or more of the six chemical substances listed in 
Table 2 of Unit III. for use in aerosol spray paint for non-industrial, 
indoor spray application.

B. What is the Agency's Authority for Taking this Action?

    Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to 
determine that a use of a chemical substance is a ``significant new 
use.'' EPA must make this determination by rule after considering all 
relevant factors, including those listed in TSCA section 5(a)(2). Once 
EPA determines that a use of a chemical substance is a significant new 
use, TSCA section 5(a)(1)(B) requires persons to submit notification to 
EPA at least 90 days before they manufacture, import, or process the 
substance for that use.

C. Applicability of General Provisions

    General provisions for SNURs appear under subpart A of 40 CFR part 
721. These provisions describe persons subject to the rule, reporting 
and recordkeeping requirements, and exemptions. Provisions relating to 
user fees appear at 40 CFR part 700. Persons subject to a SNUR must 
comply with the same notification requirements and EPA regulatory 
procedures as submitters of Premanufacture Notices (PMNs) under TSCA 
section 5(a)(1)(A). In particular, these requirements include the 
information submission requirements of TSCA section 5(b) and 5(d)(1), 
the exemptions authorized by TSCA section 5 (h)(1), (h)(2), (h)(3), and 
(h)(5), and the regulations at 40 CFR part 720. Once the Agency 
receives notification under a SNUR, EPA may, if warranted, take 
regulatory action under TSCA section 5(e), 5(f), 6, or 7 to control the 
activities on which it has received the SNUR notification. If EPA does 
not take action, EPA is required under TSCA section 5(g) to explain in 
the Federal Register its reasons for not taking action.
    Persons who intend to export a chemical substance identified in a 
proposed or final SNUR are subject to the export notification 
provisions of TSCA section 12(b) (15 U.S.C. 2611 (b)). The regulations 
that implement TSCA section 12(b) appear at 40 CFR part 707, subpart D. 
Additionally, persons who intend to import any chemical substance are 
subject to the TSCA section 13 (15 U.S.C. 2612) import certification 
requirements, and to the United States Customs Service regulations 
codified at 19 CFR 12.118 through 12.127 and 127.28. Importers would 
need to certify that their import shipments are in compliance with the 
final SNUR requirements among any other TSCA requirements. The EPA 
policy in support of import certification appears at 40 CFR 707.20.

III. Summary of this Proposed Rule

    The chemical substances which are the subjects of this proposed 
SNUR are listed in Table 2 of this unit. EPA is proposing to designate 
as a significant new use the use of any of these six chemical 
substances in aerosol spray paints for non-industrial, indoor spray 
application. EPA is proposing that ``aerosol spray paint'' be defined 
as ``a liquid mixture, usually of a solid pigment in a liquid medium, 
sold in pressurized containers and applied to a surface to form a 
decorative or protective coating. Aerosol spray paints are sold in 
individual containers the contents of which are applied without the aid 
of an air compressor or other external aspirating device.'' EPA is also 
proposing a definition for ``indoor spray application'' as ``any 
application of a liquid from a pressurized container within a confined 
space, including but not limited to inside a building, tank, vessel, 
motor vehicle, or other structure. Indoor application to objects 
intended for outdoor use, e.g., painting lawn furniture in a basement 
for outdoor use, is included within the meaning of indoor spray 
application.'' ``Non-industrial use'' is already defined in the 
regulations governing SNURs at 40 CFR 721.3 as a ``use other than at a 
facility (also defined in Sec. 721.3) where chemical substances or 
mixtures are manufactured, imported or processed,'' and EPA is not 
proposing to change the definition for this action. This proposed SNUR 
would require persons to notify EPA at least 90 days before commencing 
the manufacture, import, or processing of any of these chemical 
substances for use in aerosol spray paints intended for non-industrial, 
indoor spray application.

 Table 2.--Chemical Substances Containing Lead, Chromium, and/or Cadmium
                 Which Are Covered by This Proposed Rule
------------------------------------------------------------------------
            Chemical substance                         CAS No.
------------------------------------------------------------------------
C.I. Pigment Orange 20 (*)                  12656-57-4
Chromic Acid, Lead(2+) Salt (1:1) (**)      7758-97-6
 (***)
Chromium Lead Molybdenum Oxide (**) (***)   12709-98-7
C.I. Pigment Red 104 (**) (***)             12656-85-8
Lead Molybdenum Oxide (***)                 10190-55-3
Sulfuric Acid, Lead(2+) Salt (1:1) (***)    7446-14-2
------------------------------------------------------------------------
(*) Contains cadmium
(**) Contains chromium
(***) Contains lead

IV. Objectives and Rationale for this Proposed SNUR

    EPA is concerned about the potential risks related to the toxicity 
and potential exposures which could result from non-industrial, indoor 
spray application of aerosol spray paints containing one of more of the 
chemical substances listed in Table 2 of this unit. The Agency is 
proposing definitions for indoor spray application and aerosol spray 
paint. The terms of these definitions convey the technical framework 
for what is included in the significant new use. In addition, EPA 
believes that use of the subject substances for the proposed 
significant new use has a high potential to increase both the magnitude 
and

[[Page 1940]]

duration of exposure to these substances beyond existing levels.
    At this time, the six chemical substances covered by this proposed 
rule are the only specific compounds containing lead, chromium, and/or 
cadmium that are known to have been formulated in aerosol spray paints 
with the potential for non-industrial, indoor spray application. If EPA 
identifies other chemical substances of concern with similar potential 
uses, it may propose SNURs to cover such additional chemical 
substances.
    EPA believes that there is no ongoing manufacture, import, or 
processing of these chemical substances for use in aerosol spray paints 
except for those intended for industrial and/or outdoor uses. If EPA 
receives information through comments on this proposed rule or 
otherwise that indicates that indoor non-industrial uses are ongoing, 
EPA would consider modifying the proposed significant new use 
accordingly, to exclude particular ongoing uses, in developing a final 
rule. The Agency would assess whether separate regulatory or voluntary 
action may be appropriate for any such ongoing uses.
    In determining what would constitute a significant new use for the 
six chemical substances that are subjects of this proposed SNUR, EPA 
considered relevant information on the toxicity of the chemical 
substances, likely exposures associated with potential uses, 
information provided by industry sources (Ref. 5), and the four factors 
listed in TSCA section 5(a)(2).
    Based on these considerations, EPA wishes to achieve the following 
objectives with regard to the significant new use that is designated in 
this proposed SNUR. EPA wants to ensure that:
    1. The Agency would receive notification of any company's intent to 
manufacture, import, or process the subject chemical substances for use 
in aerosol spray paints intended for non-industrial, indoor spray 
application.
    2. The Agency would have an opportunity to review and evaluate data 
submitted in a Significant New Use Notice (SNUN) before the notice 
submitter begins manufacturing, importing, or processing the subject 
chemical substances for use in aerosol spray paints for non-industrial, 
indoor spray application.
    3. The Agency would be able to regulate prospective manufacturers, 
importers, or processors of the subject chemical substances before a 
significant new use occurs provided that the degree of potential risk, 
or uncertainty about the risks, is sufficient to warrant such 
regulation.

V. Information on the Subject Lead, Chromium, and/or Cadmium 
Containing Compounds

A. Health Effects

    EPA reviewed health hazard data associated with a wide range of 
chemical components of aerosol spray paints including the six chemical 
substances listed in Table 2 of Unit III. (Ref. 1). When inhaled, the 
six chemical substances covered under this proposed rule may be 
absorbed through the lungs or retained in the lungs and cause a variety 
of chronic toxicities. In particular, hexavalent chromium compounds, 
including chromate pigments such as those listed in Table 2 of Unit 
III., are recognized human carcinogens (Refs. 9, 13). In addition, 
dermal exposure to hexavalent chromium compounds has been associated 
with irritant and allergic contact dermatitis (Ref. 9). There is 
adequate evidence that cadmium compounds are carcinogenic in animals 
and some epidemiologic evidence suggests that they may also be 
carcinogenic in humans. These data caused EPA to list cadmium compounds 
as probable human carcinogens following inhalation exposure (Ref. 10), 
while the International Agency for Research on Cancer listed cadmium 
compounds as carcinogenic in humans (Ref. 14). Also, long-term human 
exposure to low levels of cadmium compounds has been associated with a 
variety of toxic effects such as osteomalacia, osteoporosis, 
obstructive lung diseases, and kidney dysfunction (Refs. 8, 16). In 
addition, there is adequate evidence that some lead compounds are 
carcinogenic in animals but inadequate evidence to assess their 
carcinogenic potential in humans. EPA has listed lead compounds as 
probable human carcinogens (Ref. 11) while the International Agency for 
Research on Cancer has considered lead compounds as possibly 
carcinogenic in humans (Ref. 12). Finally, exposure of developing 
fetuses and young children to lead containing substances can result in 
damage to the brain and central nervous system, slow growth, 
hyperactivity, and learning problems. Adults exposed to lead may 
develop symptoms indicative of nervous disorders and anemia as well as 
memory and concentration problems (Refs. 14, 15).

B. Exposure Data

    Assessments for consumer exposures to components of aerosol spray 
paints are described in the ``Indoor Air Cluster Report: Consumer 
Exposure to Components of Aerosol Spray Paint'' (Ref. 2). Those 
analyses include estimates of amounts of nonvolatile pigments in the 
spray paint and the amounts of aerosolized spray paint not deposited on 
the target and available for inhalation and inadvertent ingestion. 
Consumer exposure assessments using a multi chamber exposure assessment 
model were performed in order to estimate user exposures from indoor 
spray applications in a residential kitchen, basement and garage. One 
assessment indicated that the exposure to an adult spraying paint in a 
kitchen (e.g., spray painting metal cabinets, air plane models, etc.) a 
couple times a year could be toxicologically significant. This and 
other exposure scenarios showed that nonvolatile pigments, as 
components of paint sprayed indoors, were both respirable and 
ingestible. These routes of exposure were the basis of risk screening 
concerns (Ref. 3). Based on data from a usage survey and the Census 
Bureau EPA believes that 68.2 million U.S. consumers have potential 
annual exposure to components of aerosol spray paints (Ref. 3). 
Specific exposure to individual consumers who spray paint indoors is 
dependent on many factors, especially on the amount of air that flows 
through the building and into and out of the immediate vicinity of 
application. People who spray paint indoors with windows and doors open 
and use a fan to direct contaminated air out-of-doors are less likely 
to have significant exposures than those who spray paint without 
increasing their work area ventilation.
    EPA believes that, generally, indoor spray application of aerosol 
paints containing lead, chromium or cadmium in industrial settings, 
where protective measures are required should not result in exposure 
levels as high as those of consumers or other non-industrial indoor 
users. Industrial workers who use aerosol spray paints in industrial 
settings are protected by applicable safeguards and controls under the 
Occupational Health and Safety Administration's hazard communication 
standard (29 CFR 1910.1200). For example, carcinogenic chemical 
substances in the workplace must be addressed in a hazard communication 
program and listed on the material safety data sheet (MSDS).
    Exposures from outdoor spray applications of aerosol spray paint 
products by consumers, e.g., painting lawn furniture out-of-doors, are 
usually much lower. This is due to the large volume of air available 
for dilution out-

[[Page 1941]]

of-doors and removal of over spray away from the user's breathing zone 
by natural air circulation.

C. Consumer Product Safety Commission's Related Action on Lead Paint

    Effective February 27, 1978, the Consumer Product Safety Commission 
(CPSC) banned most paint and similar surface coating materials with 
0.06% or more of lead content by weight from consumer use (42 FR 44199, 
September 1, 1977) (codified at 16 CFR part 1303). This action was 
taken under the hazardous products provisions of sections 8 and 9 of 
the Consumer Product Safety Act (CPSA) (15 U.S.C. 2057 and 2058). The 
determination was based on a two-part finding:
    1. There was an unreasonable risk of lead poisoning in children 
associated with lead content of more than 0.06% in paints and coatings 
to which children have access.
    2. No feasible consumer product safety standard under the CPSA 
would adequately protect the public from this risk, 16 CFR 1303.1(c).
    The lead containing chemical substances addressed in this proposed 
SNUR were once associated with several commercial automotive uses 
(Table 3 of this Unit). Such uses of lead containing products were 
excluded from CPSC's ban because the ban was issued under the CPSA, and 
the CPSA specifically excludes ``motor vehicles and motor vehicle 
equipment'' from the scope of the Act (15 U.S.C. 2052(a)(1)(c)).
    Certain lead paint products are exempted from the CPSC ban, with 
the provision that certain cautionary labeling requirements be followed 
(16 CFR 1303.3(b)) including:
    1. Agricultural and industrial equipment refinish coatings.
    2. Industrial (and commercial) building and equipment maintenance 
coatings, including traffic and safety marking coatings.
    3. Graphic art coatings (i.e., products marketed solely for 
applications on billboards, road signs, and similar uses and for 
identification marking in industrial buildings).
    4. Touch up coatings for agricultural equipment, lawn and garden 
equipment, and appliances.
    5. Catalyzed coatings marketed solely for use on radio-controlled 
model powered aircraft.
    In addition, three product categories are exempted from CPSC's ban 
with no cautionary labeling requirements (16 CFR 1303.3(c)):
    1. Mirrors with lead containing backing paint when part of 
furniture articles.
    2. Artist paint and related materials.\1\
---------------------------------------------------------------------------

    \1\ More recently, following enactment of the Labeling of 
Hazardous Art Materials Act (LHAMA), 15 U.S.C. 1277 (Public Law 100-
695, enacted November 18, 1988), the CPSC has issued regulations in 
the Federal Register of October 9 1992 (57 FR 46626) regarding the 
labeling of craft materials that present a chronic hazard. These 
products include solvents, spray paints, silk-screen inks, 
adhesives, and any other substance marketed or represented as 
suitable for use in the creation of any work of visual or graphic 
art of any medium. CPSC's regulatory enforcement policy for these 
regulations was set forth in the Federal Register of February 13, 
1995 (60 FR 8188).
---------------------------------------------------------------------------

    3. Metal furniture articles (but not metal children's furniture) 
bearing factory applied coatings that contain lead.
    Altogether in 1978, the CPSC determined that the eight product 
categories of exemption met public needs, and although some industrial 
products contained more than 0.06% lead, there were no effective 
substitutes, and such products were unlikely to be accessed by 
children. Activities associated with certain of the use categories 
exempted under the CPSC rule may be covered by this proposed SNUR. For 
example, touch up by consumers of appliances in the home.

D. Applicable OSHA Standards and Recommendations from the ACGIH

    Under the OSHA Hazard Communication Standard (29 CFR 1910.1200), 
employees who engage in industrial, indoor spray application of aerosol 
spray paints containing lead, cadmium, or chromium must be informed of 
the hazards of exposure to these compounds. This standard requires a 
written hazard communication program, appropriate hazard labeling and 
warnings, employee training, and the availability of material safety 
data sheets. In addition to the Hazard Communication Standard, OSHA has 
established Permissible Exposure Limits (PELs) for lead, chromium, and 
cadmium. These values are listed in 29 CFR 1910.1000 in Tables Z-1 
(http://www.osha-slc.gov/OshStd_data/1910_1000_TABLE_Z-1.html) and Z-2 
(http://www.osha-slc.gov/OshStd_data/1910_1000_TABLE_Z-2.html). Lead 
and cadmium are found in Table Z-1 of 29 CFR 1910.1000, which lists 
applicable PELs in workplace air of 0.05 mg/cubic meter for lead and 
0.005 mg/cubic meter for cadmium (each averaged over an 8-hour, time-
weighted average (TWA)). Chromium can have a PEL ranging from 0.1 to 
0.5 mg/cubic meter (also determined over an 8-hour TWA), depending upon 
the specific type of chromium compound. The lower value of 0.1 mg/cubic 
applies to hexavalent chromium compounds, while 0.5 mg/cubic meter 
applies to other chromium compounds. Hexavalent chromium compounds are 
listed in Table Z-2 of 29 CFR 1910.1000, while other chromium compounds 
are listed in Table Z-1 of 29 CFR 1910.1000. Lead and cadmium are also 
covered under substance-specific standards found in 29 CFR part 1910, 
Subpart Z--Toxic and Hazardous Substances, at 29 CFR 1910.1025 and 29 
CFR 1910.1027, respectively, which contain particular guidance and 
requirements on exposure limits, workplace sampling, and medical 
monitoring requirements.
    Recommended occupational exposure guidelines have also been 
published for lead, cadmium, and chromium by the American Conference of 
Governmental Industrial Hygienists (ACGIH) (Ref.17). These exposure 
guidelines for airborne contaminants are known as threshold limit 
values (TLVs). These values are often based on very recent data, and 
can provide information that is supplementary to that provided by PELs 
so reliance on TLVs may further limit workplace exposure to certain 
hazardous substances. The TLVs include 0.01 mg/cubic meter for cadmium 
metal, 0.002 mg/cubic meter for all cadmium compounds, 0.05 mg/cubic 
meter for lead, 0.5 mg/cubic meter for all non-hexavalent chromium 
compounds, 0.05 mg/cubic meter for water-soluble hexavalent chromium 
compounds, and 0.01 for insoluble hexavalent chromium compounds.
    The protections available in occupational settings are not 
available for non-industrial, indoor spray applicators of the 
substances covered by this proposed rule.

E. Available Use Data (Ref. 4)

    Table 3 of this unit shows what were once aerosol spray 
applications of the pigments of concern. No production volume data for 
paints containing these pigments are available; however, an industry 
survey (Ref. 5) found that most uses were discontinued by 1994. The 
only exceptions were products intended for high temperature 
applications with pigments of cadmium or chromium and as a chromate 
component in primer of a specialized market. In addition, the survey 
provider, the National Paint and Coatings Association (NPCA), reported 
a lengthy history of manufacturing phase-outs for aerosol products 
containing lead, chromium, and cadmium. The overwhelming majority of 
NPCA member manufacturers responded that products containing the heavy 
metal pigments were no longer produced. As previously stated and based 
on the available data, EPA has tentatively

[[Page 1942]]

concluded that no non-industrial, indoor spray applications of these 
paints are ongoing (Ref. 4). The Agency seeks comment on this tentative 
conclusion.

Table 3.--Aerosol Spray Paints Containing Pigments of Lead, Chromium, or
   Cadmium Which Were Once In Commercial Use as Non-industrial, Indoor
                              Applications
------------------------------------------------------------------------
                                                        Use in aerosol
         Chemical name                 CAS No.           spray paints
------------------------------------------------------------------------
C.I. Pigment Orange 20           12656-57-4          Retouching auto
                                                      finishes, and for
                                                      engine enamels,
                                                      high temperature
                                                      applications\*\
Chromic Acid, Lead(2+) Salt      7758-97-6           Retouching auto
 (1:1)                                                finishes, rust-
                                                      inhibitive
                                                      primers, traffic
                                                      marking, engine
                                                      enamels, and high-
                                                      temperature
                                                      applications \*\
Chromium Lead Molybdenum Oxide   12709-98-7          Retouching auto
                                                      finishes, engine
                                                      enamels, and high-
                                                      temperature
                                                      applications
                                                      applications\*\
C.I. Pigment Red 104 (Also       12656-85-8          Retouching
 known as Molybdate Orange)                           machinery
                                                      equipment and
                                                      automotive
                                                      finishes, engine
                                                      enamels, and high-
                                                      temperature
                                                      applications\*\
Lead Molybdenum Oxide            10190-55-3          Retouching auto
                                                      finishes, engine
                                                      enamels and high
                                                      temperature
                                                      applications\*\
Sulfuric Acid, Lead (2+) Salt    7446-14-2           Component of
                                                      molybdate orange
                                                      and used as a
                                                      white pigment
------------------------------------------------------------------------
* High temperature applications, are applications of paint on automotive
  parts (such as exhaust manifolds or machinery equipment) while hot due
  to normal operation conditions.

VI. Test Data and Other Information

    EPA recognizes that under TSCA section 5, persons are not required 
to develop any particular test data before submitting a SNUN. Rather, 
persons are required only to submit test data in their possession or 
control and to describe any other data known to, or reasonably 
ascertainable by them (15 U.S.C. 2604(d)). However, a SNUN submitted 
without accompanying test data may increase the likelihood that EPA 
will take action under TSCA section 5(e).
    Should EPA finalize this proposed rule, the Agency would encourage 
persons to consult with it before submitting a SNUN or before selecting 
a protocol for testing of any of the chemical substances listed in 
Table 2 of Unit III. As part of this optional pre-notification 
consultation, EPA would discuss specific test data it believes are 
necessary to evaluate a significant new use of these chemical 
substances and advise the submitter on the selection of test protocols. 
The Agency would request that all test data be developed according to 
TSCA Good Laboratory Practice Standards set forth in 40 CFR part 792. 
Failure to do so could result in EPA's finding that submitted data are 
insufficient to reasonably evaluate the health effects of these 
chemical substances.
    Should EPA finalize this proposed rule, it would urge SNUN 
submitters to provide detailed information on human exposure that may 
result from the significant new use of the chemical substances listed 
in Table 2 of Unit III. and at Sec. 721.4583 of the proposed 
regulation. In addition, EPA would encourage persons to submit 
information on potential benefits of these chemical substances and 
information on risks posed by the chemical substances compared to risks 
posed by possible substitutes.

VII. Applicability to Uses Occurring After the Date of Publication 
of this Proposed SNUR

    EPA believes that the intent of TSCA section 5(a)(1)(B) is best 
served by designating a use as a significant new use if it occurs after 
the date of the proposed SNUR rather than after the effective date of 
the final rule. Otherwise, uses commenced during the proposed SNUR 
period would be considered ongoing, rather than new, and it would be 
difficult for EPA to establish final SNUR notification requirements, 
because any person could defeat the SNUR rulemaking by initiating the 
proposed significant new use before the rule became final and then 
argue that such a use was ongoing.
    Persons who begin commercial manufacture, import, or processing of 
the six compounds listed in Table 2 of Unit III. for the significant 
new use listed in this proposed SNUR after the date of publication of 
the proposed SNUR must stop that activity before the effective date of 
the final rule. Persons who ceased those activities will have to meet 
all final SNUR notification requirements and wait until the end of the 
notification review period, including all extensions, before 
recommencing their activities. If, however, persons who begin 
commercial manufacture, import, or processing of these chemical 
substances between the date of publication of the proposed SNUR and the 
effective date of the final SNUR meet the conditions of advance 
compliance as codified at 40 CFR 721.45(h), those persons will be 
considered to have met the final SNUR requirements for those 
activities.

VIII. Alternatives

A. Promulgate a Chemical Specific TSCA Section 8(a) Reporting Rule for 
the Chemical Substances Listed in Table 2 of Unit III.

    Under TSCA section 8(a), EPA could require persons to report 
information to the Agency when they intend to manufacture, import, or 
process the chemical substances listed in Table 2 of Unit III. for non-
industrial, indoor spray application. However, the use of TSCA section 
8(a) rather than SNUR authority would not provide the opportunity for 
EPA to take immediate regulatory action under TSCA section 5(e) or 
section 5(f) to prohibit or limit the activity before it begins. In 
addition, EPA may not receive important information from small 
businesses, because those firms generally are exempt from TSCA section 
8(a) reporting requirements. In view of EPA's concerns about these 
chemical substances and its interest in having the opportunity to 
regulate these substances further as needed, pending the development of 
exposure and/or hazard information should a significant new use be 
initiated, the Agency believes that a TSCA section 8(a) rule for those 
chemical substances would not meet all of EPA's regulatory objectives.

B. Regulate the Chemical Substances Listed in Table 2 of Unit III. 
Under TSCA Section 6

    EPA may regulate under TSCA section 6 (15 U.S.C. 2605) if there is 
a reasonable basis to conclude that the manufacture, import, 
processing, distribution in commerce, use, or disposal of a chemical 
substance or

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mixture ``presents or will present'' an unreasonable risk of injury to 
human health or the environment. There is insufficient information 
about prospective manufacture, import, or processing operations at this 
time to enable EPA to make a reasoned determination of risk. Therefore, 
EPA is not able to take action under TSCA section 6 to regulate the 
subject compounds at this time. The final SNUR would facilitate the 
Agency's consideration of potential risks associated with any intended 
significant new use of these chemical substances.

IX. Economic Analysis

    EPA evaluated the potential costs of establishing a final SNUR on 
the substances listed in Table 2 of Unit III. If this proposal becomes 
final, the manufacture, import or processing of any amount of one or 
more of the six chemical substances listed in Table 2 of Unit III. in 
aerosol spray paint for non-industrial, indoor spray application would 
be reportable. While there is no precise way to calculate the total 
annual cost of compliance with this proposed SNUR, EPA estimates that 
the reporting cost for submission of a SNUN ranges from $8,457 to 
$9,692 which includes a $2,500 user fee. The corresponding time burden 
to complete a SNUN would average 119.92 hours. EPA believes that there 
would be few, if any, SNUNs submitted. Furthermore, while the expense 
of a notification and the uncertainty of possible EPA regulation may 
discourage certain innovations, the impact would be limited because 
those factors are unlikely to deter an innovation that has high 
potential value. The Agency's economic analysis is available in the 
public record for this proposed SNUR (Ref. 6).

X. References

    These references have been placed in the official record that was 
established under docket control number OPPTS-50640 for this rulemaking 
as indicated in Unit I.B.2. Reference documents identified with an 
administrative record number (AR) are cross-indexed to non-regulatory, 
publically accessible information files maintained in the TSCA 
Nonconfidential Information Center. Copies of the documents can be 
obtained as described in Unit I.B.2.
    1. (AR098-07) OPPT Structure Activity Team (SAT) Health Assessment 
of the Aerosol Spray Paint Cluster. pp. 48, 51, 56, 58, 59, and 60. 
April 16, 1992.
    2. (AR098-06) Indoor Air Cluster Report: Consumer Exposure to 
Components of Aerosol Spray Paint. November 10, 1992.
    3. (AR098-02) OPPT RM1 Dossier: Aerosol Spray Paints Indoor Air 
Screen Cluster. December 28, 1992.
    4. (AR098-029) RM2 Use Cluster for Aerosol Spray Paints Draft Final 
Report Preliminary Screening, Sherry Wise, USEPA/OPPT/EETD/RIB. 
November 1994.
    5. (AR098-026) Letter and attachment from Stephen R. Sides, 
Director, Health and Safety Affairs National Paint and Coatings 
Association, to Christina Cinalli. EPA. June 7, 1994.
    6. (AR098-032) Memorandum and attachment of Economic Assessment for 
the Proposed SNUR on Certain Chemical Substances Used in Aerosol Spray 
Paint Intended for Non-industrial, Indoor Spray Application from 
Timothy S. Lehman. EPA. February 27, 2001.
    7. (AR098-033) Toxicological Profile for Lead (Update). Agency for 
Toxic Substances and Disease Registry. Atlanta, GA, 1993.
    8. (AR098-034)Toxicological Profile for Cadmium (Update). Agency 
for Toxic Substances and Disease Registry. Atlanta, GA, 1999. Available 
in EPA Headquarters Library.
    9. (AR098-035) Integrated Risk Information System Toxicological 
Review on Chromium (VI). EPA. Washington, DC, 1998.
    10. (AR098-036) Integrated Risk Information System Toxicological 
Review on Cadmium, EPA. Washington, DC, 1998.
    11. (AR098-037) Integrated Risk Information System Toxicological 
Review on Lead and Compounds (inorganic). EPA. Washington, DC, 1998.
    12. (AR098-038) Monographs on the Evaluation of Carcinogenic Risk 
to Humans. Supplement 7. International Agency for Research on Cancer. 
Lyon, France, 1986.
    13. (AR098-039) Monographs on the Evaluation of Carcinogenic Risk 
to Humans. Volume 49. International Agency for Research on Cancer. 
Lyon, France, 1990.
    14. (AR098-040) Monographs on the Evaluation of Carcinogenic Risk 
to Humans. Volume 58. International Agency for Research on Cancer. 
Lyon, France, 1993.
    15. (AR098-041) Tsuchiya, R., 1986. Lead. Handbook on the 
Toxicology of Metals. Volume II. L. Friberg, G.F. Nordberg, and V.B. 
Vouk, Eds. Elsevier, Amsterdam. Chapter 14, p. 298.
    16. (AR098-042) Friberg, L., Kjellstrom, T., and Nordberg, G.F., 
1986. Cadmium. Handbook on the Toxicology of Metals. Volume II. L. 
Friberg, G.F. Nordberg, and V.B. Vouk, Eds. Elsevier, Amsterdam. 
Chapter 7, p. 130.
    17.(AR098-043) ACGIH Worldwide. 2001 TLVs and BEIs: Threshold Limit 
Values for Chemical Substances and Physical Agents and Biological 
Exposure Indices. Cincinnati, OH. http://www.acgih.org.

XI. Regulatory Assessment Requirements

    Under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), the Office of Management and 
Budget (OMB) has determined that SNURs are not significant regulatory 
actions subject to review by OMB, because they do not meet the criteria 
in section 3(f) of the Executive Order.
    Based on EPA's experience with SNURs, State, local, and tribal 
governments have not been impacted by these rulemakings, and EPA does 
not have any reason to believe that any State, local, or tribal 
government would be impacted by this rulemaking. As such, EPA has 
determined that this regulatory action would not impose any enforceable 
duty, contain any unfunded mandate, or otherwise have any affect on 
small governments subject to the requirements of sections 202, 203, 
204, or 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public 
Law 104-4). Similarly, this action is not expected to have a 
substantial direct effect on States, on the relationship between the 
national government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999).
    This rule, if finalized, would not have tribal implications because 
it is not expected to have substantial direct effects on tribal 
governments, on the relationship between the Federal government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and Indian tribes, as specified in 
Executive Order 13175, entitled Consultation and Coordination with 
Indian Tribal Governments (65 FR 67249, November 6, 2000).
    However, in the spirit of Executive Orders 13132 and 13175, and 
consistent with EPA policy to promote communications among EPA, State 
and Tribal governments, EPA specifically solicits additional comment on 
this proposed rule from State and Tribal officials.
    EPA has complied with Executive Order 12630, entitled Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights (53 FR 8859, March 15, 1988), and the ``Attorney General's 
Supplemental Guidelines for the

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Evaluation of Risk and Avoidance of Unanticipated Takings'' in the 
preparation of this proposed rule.
    This action does not involve special considerations of 
environmental justice related issues which would be addressed under 
Executive Order 12898, entitled Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994).
    This action is not subject to Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997), because this is not an economically 
significant regulatory action as defined by Executive Order 12866, and 
this action does not address environmental health or safety risks 
disproportionately affecting children.
    In addition, since this action does not involve any technical 
standards, section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 
U.S.C. 272 note), does not apply to this action.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) 
(5 U.S.C. 601 et seq.), the Agency has determined and hereby certifies 
that promulgation of this SNUR would not have a significant adverse 
economic impact on a substantial number of small entities. The 
rationale supporting this conclusion is as follows. A SNUR applies to 
any person (including small or large entities) who intends to engage in 
any activity described in the rule as a ``significant new use.'' By 
definition of the word ``new,'' and based on all information currently 
available to EPA, it appears that no small or large entities presently 
engage in such activity. Since a SNUR only requires that any person who 
intends to engage in such activity in the future must first notify EPA 
(by submitting a SNUN), no significant economic impact will even occur 
until someone decides to engage in those activities. Although some 
small entities may decide to conduct such activities in the future, EPA 
cannot presently determine how many, if any, there may be. However, 
EPA's experience to date is that, in response to the promulgation of 
over 530 SNURs, the Agency has received fewer than 15 SNUNs. Of those 
SNUNs submitted, none appear to be from small entities. In addition, 
the estimated reporting cost for submission of a SNUN (see Unit IX.), 
are minimal regardless of the size of the firm. Therefore, EPA believes 
that the potential economic impact of complying with this SNUR are not 
expected to be significant or adversely impact a substantial number of 
small entities. In a SNUR that was published on June 2, 1997 (62 FR 
29684) (FRL-5597-1), the Agency presented its general determination 
that proposed and final SNURs are not expected to have a significant 
economic impact on a substantial number of small entities, which was 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration.
    According to the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et 
seq.), an Agency may not conduct or sponsor, and a person is not 
required to respond to a collection of information that requires OMB 
approval under the PRA, unless it has been approved by OMB and displays 
a currently valid OMB control number. The OMB control numbers for EPA's 
regulations, after initial display in the preamble of the final rule 
and in addition to its display on any related collection instrument, 
are listed in 40 CFR part 9.
    The information collection requirements related to this action have 
already been approved by OMB pursuant to the PRA under OMB control 
number 2070-0038 (EPA ICR No. 1188.06). This action would not impose 
any burden requiring additional OMB approval. If an entity were to 
submit a SNUN to the Agency, the annual burden is estimated to average 
119.92 hours per response and to cost ranged from $8,457 to $9,692 
including the $2,500 EPA user fee (set at $100 for businesses with 
annual sales of less than $40 million). This burden estimate includes 
the time needed to review instructions, search existing data sources, 
gather and maintain the data needed, and complete, review and submit 
the required significant new use notice, and maintain the required 
records.
    Send any comments about the accuracy of the burden estimate, and 
any suggested methods for minimizing respondent burden, including 
through the use of automated collection techniques, as instructed in 
Unit I.C. or to the Director, Collection Strategies Division, Office of 
Environmental Information, Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460. Please remember to 
include the OMB control number in any correspondence, but do not submit 
any information collection forms to this address.
    This rule is not subject to Executive Order 13211, entitled Actions 
Concerning Regulations that Significantly Affect Energy Supply, 
Distribution or Use (66 FR 28355, May 21, 2001), because this action is 
not a significant regulatory action under Executive Order 12866, nor is 
it expected to adversely affect energy supply, distribution, or use.

List of Subjects in 40 CFR Part 721

    Environmental protection, Chemicals, Hazardous substances, 
Reporting and recordkeeping requirements.


    Dated: December 21, 2001.
William H. Sanders III,
Director, Office of Pollution Prevention and Toxics.

    Therefore, 40 CFR chapter I is proposed to be amended as follows:

PART 721--[AMENDED]

    1. The authority citation for part 721 would continue to read as 
follows:


    Authority: 15 U.S.C. 2604, 2607, and 2625(c).


    2. By adding two new definitions in alphabetical order in 
Sec. 721.3 to read as follows:


Sec. 721.3  Definitions.

* * * * *
    Aerosol spray paint means a liquid mixture, usually of a solid 
pigment in a liquid medium, sold in pressurized containers and applied 
to a surface to form a decorative or protective coating. Aerosol spray 
paints are sold in individual containers whose contents are applied 
without aid of an air compressor or other external aspirating device.
* * * * *
    Indoor spray application means any application as a liquid from a 
pressurized container within a confined space including but not limited 
to inside a building, tank, vessel, motor vehicle, or other structure. 
Indoor application to objects intended for outdoor use, e.g., spray 
painting lawn furniture in a basement for outdoor use, is included 
within the meaning of indoor spray application.
* * * * *

    3. By adding a new Sec. 721.4583 to read as follows:


Sec. 721.4583  Certain compounds of lead, chromium, and cadmium.

    (a) Chemical substances and significant new uses subject to 
reporting. (1) The chemical substances, C.I. Pigment Orange 20 (CAS No. 
12656-57-4); Chromic Acid, Lead(2+) Salt (1:1) (CAS No. 7758-97-6); 
Chromium Lead Molybdenum Oxide (CAS No. 12709-98-7); Lead Molybdenum 
Oxide (CAS No. 10190-55-3); Sulfuric Acid, Lead(2+) Salt (1:1) (CAS No. 
7446-14-2); and C.I. Pigment Red 104 (CAS No. 12656-85-8) are subject 
to reporting under this section for the significant

[[Page 1945]]

new uses described in the paragraph (a)(2) of this section.
    (2) The significant new use is use of any of the six chemical 
substances listed in paragraph (a)(1) of this section in aerosol spray 
paint for non-industrial, indoor spray application.
    (b) [Reserved]
[FR Doc. 02-963 Filed 1-14-02; 8:45 am]
BILLING CODE 6560-50-S