[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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