Congressional Documents Contradict EPA Claim That It Lacks Authority to Regulate Lead Ammunition

Congressional documents contradict
the Environmental Protection Agency's recent claim that it doesn't have the
authority to regulate toxic lead bullets and shot that commonly kill and harm
bald eagles, trumpeter swans, endangered California condors and other wildlife. The EPA
last month denied a petition to ban lead ammunition and require
nontoxic alternatives for use in hunting. But the language of the Toxic
Substances Control Act, as well as the Senate and House reports on the
legislative history and intent of the Act, run counter to the EPA's claim, in an
Aug. 27 letter rejecting the lead ammunition portion of the petition, that it
lacks regulatory authority.

"The Environmental Protection
Agency's denial was based on false assumptions and an inexplicable misreading of
so-called exemptions in the Act," said Adam Keats, senior counsel for the Center
for Biological Diversity. "Given the EPA's clear authority and duty under the
Toxic Substances Control Act to regulate toxic lead in ammunition to end
unnecessary lead poisoning of wildlife and reduce human health risk, it appears
that their decision to dodge the issue was politically
motivated."

In fact, according to a House report
on the history and intent of the Act, "the Committee does not exclude from
regulation under the bill chemical components of ammunition which could be
hazardous because of their chemical properties." The EPA appears to have been
influenced by a misleading "legal opinion" sent by the National Rifle
Association on Aug. 20. The Center has sent a Freedom of Information Act Request
to the EPA asking for all documents related to the agency's partial
denial of the petition.

Last month the Center for Biological
Diversity, American Bird Conservancy and other conservation groups petitioned
the EPA to ban lead in bullets and shot for hunting, as well as lead in fishing
tackle. The petition referenced nearly 500 peer-reviewed scientific papers
illustrating the widespread dangers of lead ammunition and fishing
tackle. While the EPA is still considering the request for regulation of
lead fishing tackle, it denied the portion of the petition regarding lead
ammunition regulation. So far, 40 conservation groups in 16 states have signed
onto the petition, including organizations representing physicians,
veterinarians and zoos, birders, public employees, American Indians and
hunters.

"We are going to get to the bottom
of the politics behind the EPA decision - we are not going to let the agency
simply walk away from the preventable poisoning of birds and other wildlife,"
said Jeff Miller, conservation advocate with the Center. "We remain committed to
making sure toxic lead is removed from the environment, and we're continuing our
campaign to see that through."

Lead is an extremely toxic substance
that is dangerous to people and wildlife even at low levels. Exposure can cause
a range of health effects, from acute poisoning and death to long-term problems
such as reduced reproduction, inhibition of growth and damage to neurological
development. Wildlife is poisoned when animals scavenge on carcasses shot and
contaminated with lead-bullet fragments, or pick up and eat spent lead-shot
pellets or lost fishing weights mistaking them for food or grit. Animals can die
a painful death from lead poisoning or suffer for years from its debilitating
effects. An estimated 10 million to 20 million birds and other animals die each
year from lead poisoning in the United States.

For more information, read about the
Center's Get the Lead Out campaign and the petition to EPA.

Background

Section 2605(a)(2)(A)(i) of the
Toxic Substances Control Act, passed in 1968 as the federal mechanism for
regulating toxic substances, allows the EPA to prohibit the manufacture,
processing or distribution in commerce of a chemical substance for a particular
use. Lead used in bullets and shot as well as fishing sinkers is a "chemical
substance" falling within the scope of the Act. Although certain substances that
are regulated under other federal laws are excluded from the definition of
"chemical substances," none of these exclusions are applicable to lead shot or
sinkers.

In denying the lead ammunition
portion of the petition, the EPA in its Aug. 20 letter claimed "TSCA does not
provide the agency with authority to address lead shot and bullets as requested
in your petition, due to the exclusion found in TSCA SS
3(2)(B)(v)."

The relevant section of the Act
exempts "any article the sale of which is subject to the tax
imposed by section 4181 of the Internal Revenue Code of 1986..." However,
section 4181 of the Internal Revenue Code taxes firearms, shells and
cartridges. Shot and bullets are explicitly not subject to this tax. According
to a 1968 Revenue Ruling (IRS Rev. Rul. 68-463), "The manufacturers excise tax
imposed upon sales of shells and cartridges by section 4181 of the Internal
Revenue Code of 1954 does not apply
to sales of separate parts of ammunition such as cartridge cases, primers,
bullets, and powder" (emphasis added). Because shot and bullets, as separate
parts of ammunition, are not taxed under section 4181 of the Internal Revenue
Code, the Act's exception does not apply, and lead shot and bullets are properly
classified as "chemical substances" subject to its regulation. The petition does
not ask EPA to regulate firearms or the manufacture and sale of ammunition, but
rather the toxic, separate parts of ammunition, such as bullets and
shot.

The Senate and House reports on the
legislative history and intent of the Toxic Substances Control Act are equally
clear and instructive. The House report explicitly states on page 418: "Although
the language of this bill is clear on its face as to the exemption for pistols,
revolvers, firearms, shells and cartridges, the Committee wishes to emphasize
that it does not intend that the legislation be used as a vehicle for gun
control...However, the Committee does not exclude from
regulation under the bill chemical components of ammunition which could be
hazardous because of their chemical properties" (emphasis added). The
Senate report states, "In
addition, the term [chemical substance] does not include pesticides,
tobacco, or tobacco products, nuclear material (as defined in the Atomic Energy
Act), firearms and ammunition (to the extent subject to taxes imposed under
section 4181 of the Internal Revenue Code)..."