[Federal Register Volume 59, Number 161 (Monday, August 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-20556]


[[Page Unknown]]

[Federal Register: August 22, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372

[OPPTS-400088; FRL-4904-6]

 

Hydrogen Sulfide; Methyl Mercaptan; Toxic Chemicals Release 
Reporting; Community Right-to-Know; Stay of Reporting Requirements

AGENCY: Environmental Protection Agency (EPA).

ACTION: Administrative stay.

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SUMMARY: EPA is today announcing an Administrative Stay of the 
Emergency Planning and Community Right-to-Know (EPCRA) section 313 
toxic chemical release reporting requirements for hydrogen sulfide (CAS 
No. 7783-06-4) and methyl mercaptan (CAS No. 74-93-1). These two 
chemicals were added to the 40 CFR part 372 Subpart D list of toxic 
chemicals in a final rule published in the Federal Register of December 
1, 1993. The effect of this stay is to defer reporting on these two 
chemicals while the Agency reviews new data and information made 
available subsequent to the promulgation of the final rule. The Agency 
will make this information available for public comment, in a 
forthcoming Federal Register notice and will also at that time seek 
public comment on whether the Agency should propose to delete one or 
both of these chemicals from the EPCRA section 313 list of toxic 
chemicals. After evaluating the information and public comments the 
Agency will either propose to delete one or both of these chemicals or 
will reaffirm its original findings and dissolve this Administrative 
Stay. Today's action has no effect on any aspect of EPCRA section 313 
toxic chemical release reporting other than hydrogen sulfide and methyl 
mercaptan.

EFFECTIVE DATE: August 22, 1994.

FOR FURTHER INFORMATION CONTACT: Maria J. Doa, Project Manager, 202-
260-9592, for specific information on this action. For general 
information on EPCRA section 313, contact the Emergency Planning and 
Community Right-to-Know Hotline, Environmental Protection Agency, Mail 
Code 5101, 401 M St., SW., Washington, DC 20460, Toll free: 1-800-535-
0202, in Virginia and Alaska: 703-412-9877 or Toll free TDD: 1-800-553-
7672.

SUPPLEMENTARY INFORMATION:

I. Introduction

    Section 313 of the Emergency Planning and Community Right-to-Know 
Act of 1986, 42 U.S.C. 11023 (EPCRA) requires certain facilities 
manufacturing, processing, or otherwise using listed toxic chemicals to 
report their environmental releases of such chemicals annually. 
Beginning with the 1991 reporting year, such facilities also must 
report pollution prevention and recycling data for such chemicals, 
pursuant to section 6607 of the Pollution Prevention Act (42 U.S.C. 
13106). Section 313 established an initial list of toxic chemicals that 
was comprised of more than 300 chemicals and 20 chemical categories. 
Section 313(d) authorizes EPA to add or delete chemicals from the list, 
and sets forth criteria for these actions. Under section 313(e), any 
person may petition EPA to add chemicals to or delete chemicals from 
the list. EPA has added and deleted chemicals from the original 
statutory list.

II. Background

    In the Federal Register of December 1, 1993 (58 FR 63500), the 
Agency published a final rule adding 21 chemicals and 2 chemical 
categories to the Emergency Planning and Community Right-to-Know Act 
(EPCRA) section 313 list of toxic chemicals. The December 1993 Federal 
Register document was a result of a petition submitted to the Agency by 
the Natural Resources Defense Council and the Governor of New York. The 
petition asked the Agency to add 80 chemicals and 2 chemical categories 
to the EPCRA section 313 list of toxic chemicals. EPA proposed to grant 
this petition in part in a notice of proposed rulemaking (NPRM) 
published in the Federal Register of September 8, 1992 (57 FR 41020). 
In the final rule, EPA added to the EPCRA section 313 list of toxic 
chemicals 21 chemicals and 2 chemical categories. Included among the 21 
chemicals and 2 chemical categories in the December 1993 final rule 
were hydrogen sulfide and methyl mercaptan. The Agency found that 
hydrogen sulfide met the section 313(d)(2)(B) criteria for cancer or 
other chronic human toxicity and the section 313(d)(2)(C) criteria for 
environmental toxicity. EPA found that methyl mercaptan met the section 
313(d)(2)(B) criteria for cancer or other chronic human toxicity.

III. Basis for Administrative Stay

A. Overview

    Since the promulgation of the final rule adding hydrogen sulfide 
and methyl mercaptan to the list of toxic chemicals, additional 
information concerning these chemicals has been brought to the Agency's 
attention. The Agency has also learned that some members of the 
regulated community are concerned that the basis for the Agency's final 
action on these chemicals was inadequately described in the rulemaking 
record. Furthermore, these members of the regulated community have 
charged that the Agency violated various requirements of the 
Administrative Procedure Act in promulgating the final listings of 
hydrogen sulfide and methyl mercaptan. These issues are summarized 
below. The Agency feels that it is important and appropriate to 
administratively stay the effectiveness of the listing of these two 
chemicals while giving the public an opportunity to comment on these 
issues and the additional information, as well as to comment on whether 
the Agency's initial determination that both hydrogen sulfide and 
methyl mercaptan satisfy the section 313(d) criteria for addition to 
the list of toxic chemicals.
    To that end, in conjunction with this Administrative Stay, the 
Agency will be issuing a forthcoming Federal Register notice which will 
seek comment on the Agency's initial determination for these two 
chemicals, the additional information which has been brought to the 
Agency's attention, procedural issues concerning the initial final 
rule, and generally, comments (and any supporting data) on whether the 
Agency should either propose to delete one or both of the chemicals or 
affirm its initial determination and dissolve today's Administrative 
Stay.
    Under the final rule, reporting for hydrogen sulfide and methyl 
mercaptan are required beginning with activities during the 1994 
calendar year, with the first reports due on July 1, 1995. Because of 
the controversy surrounding the listing of these two chemicals and the 
decision to issue this Administrative Stay, EPA finds it unnecessary 
and inappropriate to subject facilities, some of whom may be subject to 
section 313 reporting for the first time because of the listing of 
hydrogen sulfide or methyl mercaptan, to the burden of collecting 
release information and preparing to file Toxic Release Inventory (TRI) 
Form R reports for the 1994 reporting year. Therefore, pending a 
decision by the Agency of whether to propose to delete one or both of 
the chemicals or to affirm its final rule determination, the 
effectiveness of the listing of these two chemicals on the list of 
toxic chemicals is administratively stayed. EPA's decision will be made 
promptly after consideration of public comment submitted on the pending 
Federal Register notice.

B. Substantive and Procedural Issues Surrounding Final EPCRA Section 
313 Listing

    Although the Agency will soon be issuing a separate Federal 
Register notice and seeking public comment, the following is a brief 
summary of the issues and new information related to hydrogen sulfide 
and methyl mercaptan which support this Administrative Stay. In 
addition, a brief discussion of the use of exposure analysis under 
section 313 listing determinations also follows. This is another issue 
the Agency will be presenting in the upcoming Federal Register notice.
    1. Hydrogen sulfide. Concern has been expressed that the Agency 
shifted its basis for adding hydrogen sulfide to the EPCRA section 313 
list between the NPRM and the final rule. EPA proposed to list hydrogen 
sulfide because it exhibited chronic human toxic effects, specifically 
citing respiratory effects. In the final rule, the Agency agreed with 
commenters who argued that some of the respiratory effects cited in the 
proposal (inflammation, edema, cellular necrosis, hyperplasia, and 
exfoliation) were better characterized as acute effects than as chronic 
effects. The Agency nonetheless listed hydrogen sulfide for chronic 
effects because the observed neurotoxic effects, such as insomnia, 
anxiety, perceptual ability and cognitive impairments were chronic in 
nature. Although the statutory basis for the determination did not 
change, the Agency cited chronic neurotoxic effects in the final rule 
and chronic respiratory effects in the NPRM. EPA recognizes that, 
although its ultimate finding remained unchanged in the final rule, 
interested parties may disagree with the Agency's position that the 
information on neurotoxicity supports a finding under section 
313(d)(2)(B). EPA believes good cause exists to issue this 
Administrative Stay to allow parties time to prepare and submit comment 
and information on this point. As noted earlier, the pending Federal 
Register notice will provide the mechanism for submitting any comments 
and relevant information.
    2. Methyl mercaptan. As with hydrogen sulfide, concerns have been 
raised about the basis for listing methyl mercaptan as discussed in the 
NPRM and in the final rule. EPA proposed to list methyl mercaptan 
because scientific evidence showed that it exhibited chronic human 
toxicity effects, specifically citing neurotoxicity. The Agency 
affirmed this finding in the final rule. Since the publication of the 
final rule, however, it has come to the Agency's attention that one of 
the scientific sources relied upon by the Agency in making this 
determination may have been inaccurately or incompletely summarized 
from the original source.
    In reviewing the available information for methyl mercaptan, EPA 
relied on Sandmeyer, ``Organic Sulfur Compounds,'' in Patty's 
Industrial Hygiene and Toxicology handbook, a common chemical reference 
work (Ref. 2). Sandmeyer, in turn, appears to have relied on another 
work by Kvartovkina and Moerson, (Ref. 1), a 1974 work published in 
Russian. When translated (a translation of the article will be provided 
as part of the record for the forthcoming Federal Register notice), 
there are a number of additional factors and limitations which may 
diminish the usefulness of this study for purposes of EPCRA section 313 
listing determinations. For example, the findings in the original study 
were made, collectively, for a number of chemicals, one of which was 
methyl mercaptan. These potential translation and summary problems were 
not presented to EPA during the public comment period, nor was the 
Agency independently aware of the original Russian source. Given the 
Agency's longstanding intent to base its decisions on sound science and 
the potential problems posed by the above information, EPA believes 
good cause exists to issue this Administrative Stay to allow parties 
time to review the full information and prepare and submit comment on 
this point through the pending Federal Register notice.
    3. Analysis of exposure to hydrogen sulfide and methyl mercaptan. 
Several representatives of the regulated community have expressed 
concern that, in listing hydrogen sulfide and methyl mercaptan, EPA was 
unclear in its application of the statutory criteria. Among other 
things, charges have been made that EPA's decision not to include 
evidence of exposure in deciding to list hydrogen sulfide and methyl 
mercaptan on the basis of chronic human toxicity was inconsistent with 
past Agency practice. These charges raise important and potentially far 
reaching issues of the Agency's interpretation of its mandate under the 
statute.
    EPA does not agree that it has inconsistently approached the issue 
of the use of exposure analysis in EPCRA section 313 listings. However, 
many members of the regulated community have expressed dissatisfaction, 
alleging that the Agency has neither consistently or correctly 
addressed the issue of exposure. The Agency believes that a consistent 
approach to the EPCRA section 313 listing process is both necessary and 
important and that, given the charges of inconsistency with respect to 
exposure analysis, the public deserves an opportunity to be presented 
with further clarification of the Agency's position on this critical 
issue. A more complete discussion of this issue will be provided in the 
pending Federal Register notice.
    4. Legal authority. As described above, the Agency believes that 
this Administrative Stay is appropriate and in the interests of 
justice, given the allegations of procedural and substantive 
deficiencies surrounding the Agency's listing of these two chemicals, 
and the resulting controversy and confusion in the regulated community. 
Although the Agency does not regard today's action as a rule, were it 
to be viewed as a rule, the Agency believes that there is good cause 
for issuing it without prior notice and opportunity for comment and for 
making it immediately effective. Under section 313(a), facilities face 
a current and ongoing obligation to collect information about releases 
of hydrogen sulfide and methyl mercaptan. Such activities are 
potentially quite burdensome, particularly for any facility made 
subject to section 313 reporting requirements for the first time 
because of the listing of these two chemicals. Until such time as the 
issues described in this document are resolved, EPA believes that 
today's Administrative Stay is necessary. As stated above, EPA will be 
issuing a notice in the Federal Register to begin addressing these 
issues and will move with dispatch toward final resolution of the 
status of these two chemicals.
    In addition, this Administrative Stay is authorized by 5 U.S.C. 
section 705, which provides that an agency may postpone the effective 
date of action taken by it when justice so requires, pending judicial 
review. No petition for review has been formally filed as of this date 
with respect to the listing of hydrogen sulfide and methyl mercaptan. 
However, both the Chemical Manufacturers Association and the American 
Forest and Paper Association have told the Agency that unless 
administrative action is taken to resolve the issues outlined in 
today's document, a prompt legal challenge will be brought. These two 
organizations represent the interests of a large portion of the 
facilities subject to section 313, including those affected by the 
listing of hydrogen sulfide and methyl mercaptan. The Agency believes 
that rather than going through costly and potentially protracted 
litigation, an Administrative Stay coupled with a Federal Register 
notice and opportunity to comment is both consistent with the goal of 
the TRI program to involve the public in the resolution of important 
issues and clearly in the interests of justice.

IV. References

    1. Kvartovkina, L. K. and Moerson, E. A. ``Problems of Hygiene in 
the Production of Some Organic Sulfur Components.'' Tezisy Dokl. 
Nauchn. Sess. Khim-Teknol Org. Soedin. Sery Sernistykh Neftei, 13, 81 
(1974).
    2. Sandmeyer, E. E. ``Organic Sulfur Compounds,'' in Patty's 
Industrial Hygiene and Toxicology, 3rd Revised Edition. Vol. 2A; 
``Toxicology.'' Eds. G. D. Clayton and F. E. Clayton. New York: John 
Wiley and Sons. pp. 2063-2070 (1981).

V. Effective Date of Administrative Stay

    This Administrative Stay, which applies only to the listing of 
hydrogen sulfide and methyl mercaptan on the EPCRA section 313 list of 
toxic chemicals is effective August 22, 1994.

VI. Paperwork Reduction Act

    There are no information collection requirements associated with 
this action.

List of Subjects in 40 CFR Part 372

    Environmental protection, Chemicals, Community right-to-know, 
Reporting and recordkeeping requirements, and Toxic chemicals.

    Dated: August 11, 1994.
Lynn R. Goldman,
Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.

    Therefore, 40 CFR part 372 is amended as follows:

PART 372--[AMENDED]

    1. The authority citation for part 372 continues to read as 
follows:

    Authority: 42 U.S.C. 11023 and 11048.

Sec. 372.65 [Amended]

    2. Section 372.65 is amended by staying the hydrogen sulfide and 
methyl mercaptan entries and all related dates under paragraph (a) and 
under paragraph (b), staying the entries for CAS Nos. 74-93-1 and 7783-
06-04 and all related dates.

[FR Doc. 94-20556 Filed 8-19-94; 8:45 am]
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