Issue Date: July 9, 2007
Agency's Actions Set Off Fireworks
NO ONE DISPUTES the value of keeping illegal and dangerous fireworks off the market. But recent efforts by the Consumer Products Safety Commission (CPSC) to do just that have resulted in cries of foul play by the owners of some chemical supply houses as well as their prime customers: amateur chemists and fireworks hobbyists.
Suppliers, hobbyists, and others say CPSC's enforcement actions are overreaching and that limiting or blocking the sales of some chemicals and other supplies threatens to eliminate the kinds of hands-on activities that can spark a child's interest in science.
For its part, CPSC says the legal actions it has pursued are aimed at stopping scientific supply retailers who are in essence selling kits and components that can be used to make such illegal large firecrackers as M-80s and cherry bombs. By choking off such supplies, the agency says, it is trying to put illicit fireworks manufacturers out of business in the U.S. once and for all and stem the rising incidence of fireworks-related accidents that kill and maim each year, especially around the Fourth of July. It is a battle the agency has been fighting nearly from its inception in the mid-1960s, when M-80s and similar devices were first outlawed.
"CPSC is not targeting hobbyists through our recent enforcement actions," says Acting Chairman Nancy Nord. "Instead, we are focusing on the individuals and companies involved in the manufacture and distribution of illegal fireworks and their components. CPSC's primary focus has been on the suppliers of the chemicals used in the manufacture of illegal fireworks, not on individual hobbyists."
The hobbyists disagree. A "safety at all costs" attitude is behind the recent enforcement actions, says John Steinberg, second vice president of Pyrotechnics Guild International, one of the hobbyist groups. "Pauling, Edison, Goddard—they would all be criminals under today's regulations." He is referring to three great men of science—Linus Pauling, Thomas Edison, and Robert Goddard—who, as children, experimented with the types of chemicals and energetic materials that CPSC has targeted under its regulatory purview, the Federal Hazardous Substances Act. That act gives the agency the ability to regulate chemicals or other hazardous substances that can find their way into the hands of consumers, including fireworks and their components.
CPSC officials agreed to meet with the hobbyists and at least one supplier last year at commission headquarters in Bethesda, Md. At the meeting, agency officials acknowledged the potential for them to go too far on this issue. A recording of the meeting was provided to C&EN, and one of the voices on it identifies himself as John G. Mullan, a CPSC official. He says, "We may be pinching some legal activities, and we want to avoid that. We don't plan to stop enforcing regulations."
Another CPSC official on the recording adds that "injuries involving illegal fireworks should be a distant memory at this point, but unfortunately, they are not. We have support from high levels within the Justice Department to pursue the cases that we pursue."
A review of the tape by C&EN reveals that one of the hobbyists' primary concerns is the continued availability of aluminum metal powder in a range of particle sizes. In its enforcement actions, CPSC has obtained injunctions against at least two sellers from providing aluminum flash powder, which is used in making M-80s, below 100 mesh (about 150 µm) in diameter. The hobbyists balk at that limit and say the metal powder is used for many legal purposes and fireworks special effects beyond making illegal M-80s.
The two suppliers, United Nuclear Scientific Supplies of Sandia Park, N.M., and Firefox Enterprises of Pocatello, Idaho, are small, family-run businesses that cater to individuals. In separate actions, CPSC claims that both businesses have on multiple occasions sold components necessary to make illegal fireworks (under federal law, firecrackers containing more than 50 mg of flash powder). Typically, these supplies include sulfur, aluminum, magnesium, magnesium/aluminum alloys, titanium, potassium chlorate, potassium perchlorate, potassium nitrate, potassium benzoate, and potassium permanganate, paper tubes, end caps, and fuses.
CPSC will not divulge the details of its investigations of United Nuclear and Firefox, but the probes included a review of orders filled by the companies, as well as orders for materials constituting illegal fireworks kits that the agency asserts were placed by CPSC investigators and filled by the defendants.
"The chemical industry should know what's creeping up on them," says United Nuclear President Robert Lazar of the enforcement action against his company. By order of a judge, he is now prohibited from selling to any individual or sending to one delivery address any more than 1 lb of any oxidizer per 12-month period. He was also ordered to destroy his inventory of fuses, tubes, end caps, and fuels with a particle size finer than 100 mesh.
If a buyer holds a certain license from the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), however, then Lazar can sell the buyer more of the oxidizers and other materials. But he says the license requirements would be onerous to average hobbyists, especially because they have never been required in the past.
"All of a sudden, all science is going to become illegal," says Lazar, who is also facing fines in excess of $30,000 as part of his plea agreement with the Justice Department, which prosecutes cases on behalf of CPSC. "Someone started a war on science," he says, "and I feel like I am the only guy fighting it."
But Lazar is not alone. The hobbyist fireworks community helped fund the legal defense of Firefox and its owner, Gary Purrington. Nonetheless, in April, a federal judge in Idaho placed an injunction on Purrington and his company. He is enjoined, as is United Nuclear, on the sale of both oxidizers and metal-powder fuel, including aluminum metal powder. He is prohibited from selling paper tubes shorter than 10 inches and from selling more than 25 feet of fuse to any individual per 12-month period.
THE INJUNCTIONS against United Nuclear and Firefox were specific to those companies, but a CPSC spokesman says the agency hopes "they send a very clear message" to other suppliers about the types of materials it wants to prevent from being sold. The agency vows that it will go after any supplier it believes is providing material to illegal fireworks manufacturers.
"Nowhere in my wildest dreams did I think he would decide like this," says Purrington of the injunction terms set by Chief U.S. District Judge for the District of Idaho B. Lynn Winmill. Purrington says Winmill's decision could put him out of business by severely limiting his ability to sell fuels and oxidizers.
"These are chemicals that you can find anywhere," Purrington continues. The government "found a way to declare that they are dangerous." He categorically denies ever selling kits to illegal fireworks manufacturers. "We have always complied with the regulations."
But this is not the first time Purrington has found himself in court on charges of selling illegal fireworks components. In 1986, the same court in Idaho permanently enjoined Purrington and his company NorStarr Products from distributing illegal fireworks components.
A hazardous materials expert for the Firefox defense in Purrington's most recent case, Roger L. Schneider of consulting firm Rho Sigma Associates, in Whitefish Bay, Wis., says, according to his analysis of Firefox sales records, the data do not "support any assertion Firefox was focused on the sales of aluminum powders suitable for salute [a type of firework] compositions. Moreover, in my opinion, the data suggest Firefox was not a supplier of materials for people in the business of manufacturing illegal explosives."
But prosecution expert John Conkling, an adjunct professor of chemistry at Washington College, in Chestertown, Md., and a retired executive director of the American Pyrotechnics Association, says, "There was a lot of evidence in the direction of kits" being sold by Firefox.
Conkling says the injunction against Firefox "is not a ban on the sale of chemicals." The ability to buy 1 lb of any oxidizer per year is sufficient for any amateur chemist's needs, he says.
Fireworks hobbyist clubs might explore obtaining a license from ATF so that their members can buy more of the chemicals, Conkling says. This arrangement has worked for hobby rocket clubs that obtain such licenses on behalf of their members, he explains.
Conkling agrees with hobbyists that experimenting with pyrotechnics can help spark an interest in science. "I strongly support the hobby of amateur pyrotechnics," he says, "but I have long been opposed to the sale of illegal explosive devices."
"This is probably the first case that has gone this far," says Firefox defense attorney Douglas K. Mawhorr. He says the judge "went way overboard" in banning metal fuels under 100 mesh, and defense experts tried to make this case to the court. "The judge could have followed what Firefox was recommending," which was enjoining a narrower range of particle sizes and shapes, he explains.
Mawhorr is referring to the results of two studies conducted for the defense by experts PyroLabs of Whitewater, Colo., and Rho Sigma Associates. In tests of a variety of aluminum metal powders, both firms found that the explosive power of a device such as an M-80 depends on both the particle size and the shape of the aluminum metal-powder fuel. Their tests showed that only a fraction of the metal powders available for fuel were actually suitable for illegal explosive devices, and they recommended that the judge limit his injunction on these materials accordingly.
"Particle size alone has almost nothing to do with explosivity," says Kenneth L. Kosanke of PyroLabs. He says it appears that the judge did not pay any attention to the results of his studies, which demonstrate that only atomized (spherical) particles less than 6 µm in diameter and flake particles less than 40 µm across are suitable for making illegal explosive devices.
Where to draw the line on which mesh size of aluminum particle can be sold could "be the subject of a weeklong debate," Conkling says. A range of particle sizes and shapes are sold, and they are used to create a variety of fireworks effects that sparkle and shimmer.
Mawhorr points out that access to aluminum powder and other materials by hobbyists has had a beneficial effect. "All of the innovation in pyrotechnics in the last 30 years has come from the hobbyists," he says. "Someone said there is no application for aluminum powders beyond explosivity, and it's just not true."
Still, "the finer the particle size of metal fuel, the easier it is to make explosives with an oxidizer," Conkling says. In the Firefox case, "the government made a conservative decision with 100-mesh size. If they erred, they erred on the side of safety to the public."
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