1 

## Response to Comments Received on the February 26, 2010

, Federal Register Document (75 FR 8889):

Hydrogen Sulfide; Community Right

- to

- Know Toxic Chemical

Release Reporting

Intent to consider lifting administrative stay; opportunity for public co mment.

July 2 1 , 201 1 U.S. Environmental Protection Agency Office of Information Analysis and Access Ariel Rios Building 1200 Pennsylvania Ave., NW Washington, DC 204602 Comment Number Commenter

EPA

- HQ

- TRI

- 2009

- 0844

- 0076 Shirley J. McNall

EPA

- HQ

- TR I

- 2009

- 0844

- 0077 Eric Berg

EPA

- HQ

- TRI

- 2009

- 0844

- 0079 Amanda Buck

EPA

- HQ

- TRI

- 2009

- 0844

- 0081 Rita B. Messing

, Minnesota Department of Health

EPA

- HQ

- TRI

- 2009

- 0844

- 0082 Hannah Connor

, Waterkeeper Alliance

EPA

- HQ

- TRI

- 2009

- 0844

- 0083 Wenonah Hauter, Food & Water Watch

EPA

- HQ

- TRI

- 2009

- 0844

- 0084 Anonymous public comment

EPA

- HQ

- TRI

- 2009

- 0844

- 0086 David L. Meeker, National Renderers Association

EPA

- HQ

- TRI

- 2009

- 0844

- 0087 American Coke and Coal Chemicals Institute American Forest and Paper Asso ciation

American Petroleum Institute Asphalt Institute

Carbon Disulfide Coalition

Corn Refiners Association

National Petrochemical and Refiners Association The Sulphur Institute

EPA

- HQ

- TRI

- 2009

- 0844

- 0088 Natural Resourc es Defense Council

EPA

- HQ

- TRI

- 2009

- 0844

- 0089 Mary Johnson

EPA

- HQ

- TRI

- 2009

- 0844

- 0090 Cynthia A. Finley

, National Association of Clean Water Agencies

EPA

- HQ

- TRI

- 2009

- 0844

- 0092 Linda Phillips

EPA

- HQ

- TRI

- 2009

- 0844

- 0093 Ashley B. Peterson

, American M eat Institute

EPA

- HQ

- TRI

- 2009

- 0844

- 0094 Citizens for Environmental Justice Community In

- Powerment and Development Association Northeast Ohio Gas Accountability Project Sampson County Concerned Citizens For A Safe Environment

Air Allian ce Houston Cook Inletkeeper

Protect All Children’s Environment Sustainable Energy & Economic Development Coalition Texas Campaign for the Environment3 Working Effectively for Clean Air Now

Downwinders at Risk Person County People Rising In Defense of Ecology Huron Environmental Activist League Global Community Monitor National Refinery Reform Campaign National Bucket Brigade Coalition Texas Oil and Gas Accountability Project

National Alliance f or Drilling Reform Wise County Alliance for Responsible Drilling Groups Allied to Stop Pollution

OMB Watch Sierra Club Lone Star Chapter Environmental Integrity Project

Don’t Waste Arizona

EarthWorks

Oil & Gas Accoun tability Project Citizens Against Environmental Destruction Texas Environmental Justice Advocacy Services4 Commenter: Shirley J. Mca11 [EPA

- HQ

- TRI

- 2009

- 0844

- 0076]

March 22, 2010 Office of Environmental Information (OEI) Docket

Envi ronmental Protection Agency 1200 Pennsylvania Ave NW Washington, DC 20460

Subject: Docket ID No. EPA HQ

- TRI

- 2009

- 0844 Hydrogen Sulfide; Community Right

- to

- Know Toxic Chemical Release Reporting

Comment:

To Whom It May Concern:

Please accept my comments into the official records as follows:

My name is Shirley J. McNall residing at 900 Sabena St. Aztec, New Mexico 87410. Our phone

number is 505

- 334

- 6534 My husband and I live in a very large neighborhood in Aztec, NM. The population of Aztec is over 7,000 people. We live in the San Juan Basin of New Mexico "gas patch" among over 20,000 gas wells. An additional 10,000 gas wells are scheduled to be drilled in our area in the next 20 years.

There are over 20 natural gas wells within half mile of our neighborh ood. We know that at least 5 of these gas wells are emitting unknown levels of hydrogen sulfide. Only two of these wells have hydrogen sulfide warning signs posted on the fences . We do not know how many more wells close to our home and neighborhood are em itting hydrogen sulfide. This is an unhealthy and dangerous fact known only by the oil and gas industry and possibly State and Federal Regulatory Agencies. It is a fact that every gas industry worker in the San Juan Basin is trained to deal with hydrogen s ulfide and they are equipped with hydrogen sulfide monitors and have breathing safety equipment in their vehicles. The workers know which wells are hydrogen sulfide contaminated and have safety equipment available to them. We the people, who live next

to t hese wells are kept in the dark about the presence and dangers of hydrogen sulfide. Most of the hydrogen sulfide gas wells are not posted and there is absolutely no public awareness information available to us. There are no emergency plans available to the residents of the San Juan Basin in case of hydrogen sulfide releases from the gas wells. We are "sitting ducks" . Our health and welfare is at risk 24/7 because of our daily exposure to hydrogen sulfide! !

I was personally impacted by the hydrogen sulfid e emissions from one of the wells owned and operated by BP (BP Blanco Corn #2001 B

- MV) which is a Federal Lease well and is located on State of New Mexico land less than a half mile from our home. My husband and I began to notice the strong smell of rott en eggs at our home every day beginning in early November, 2005. We were concerned that the odor was hydrogen sulfide, but we were not sure where it was coming from. On December 23, 2005, I walked to our newspaper box which is about 1000 feet

from our hous e. I noticed the usual very strong rotten egg odor in the air. During my walk to the paper box, my throat became very sore, my eyes were watering, my face and lips felt numb and5 my legs became weak and wobbly. I struggled to walk back to the house. I was h ome alone and spent the rest of the day in bed suffering from an intense

Page 2 of Shirley J. McNall comments on Hydrogen Sulfide

–

headache and sore throat . I later learned that my symptoms were those of hydrogen sulfide poisoning. I did not feel well for a few days, but did not know what was wrong with me. The strong odor of rotten eggs was still evident at our home every day. We determined that the rotten egg odor seemed to be more intense when the wind blew from the direction of the newly drilled

BP Blanco Com well NE of our house. I was still suffering from headaches, sore throat, dizziness and muscle weakness whenever I went outside our home in our yard when the rotten egg odor was present.

On January 6, 2006, my husband and I noticed that the rott en egg odor was stronger than ever before . We called the New Mexico Oil Conservation Division and the local BP Office again! Two BP officials came to our house and determined that the odor was indeed hydrogen sulfide and they located the source which was the newly drilled BP Blanco Com well. They immediately shut the well off and later reported that the well had been treated "down hole" to neutralize the hydrogen sulfide. We did obtain the well report and were alarmed to learn that at one point the hydroge n sulfide content of that well was 196 parts per million! That level is far beyond the deadly level of hydrogen sulfide. Keep in mind that this well is less than a half mile of several hundred homes in the city of Aztec!

I live in constant fear that this well will "leak" hydrogen sulfide again. The BP officials told us that the well would be closely monitored and instructed us "to call them if we smell rotten eggs again". We have researched hydrogen sulfide and have found that at higher levels our olfactor y nerves are desensitized and we might not smell anything. This is just not right !

Our health and our lives are at risk because of the presence of poorly managed natural gas wells emitting hydrogen sulfide in our neighborhood.

We are at additional risk because there is another BP well 2,400 feet from our home that is on Bureau of Land Management (BLM) Land and is on the BP/ BLM hydrogen sulfide well reporting list. The equipment on this well has malfunctioned numerous time and when it does, gas vapors in cluding hydrogen sulfide permeates our neighborhood and inside our home. The most recent incident of "gassing" from this well was less than six months ago. We have no idea about the hydrogen sulfide levels in the other wells in our immediate neighborhood.

In December 2005, the BLM published a memo that stated that there are over 375 reports of gas wells in the San Juan Basin that are contaminated with hydrogen sulfide. The memo further said that the smaller companies did not report, so the number of hydro gen sulfide wells were likely much higher. I have a list of 193 hydrogen sulfide gas wells owned and operated by BP that are reported to the BLM on a regular schedule! ! There is no list of hydrogen sulfide wells located on private, State of NM, or tribal lands. The San Juan Basin gas field is old and more and more coal bed methane wells are being drilled which increases the presence of the dangerous and deadly hydrogen sulfide in our area. I strongly support the intent of the EPA to consider lifting the6 a dministrative stay of the reporting requirements for hydrogen sulfide. In addition, it is imperative that the EPA takes action to list hydrogen sulfide as a Hazardous Air Pollutant under the Clean Air Act. Thank you ~

Shirley J. Mca11 a survivor of hydrog en sulfide gassing) 900 Sabena Street, Aztec, NM 8

EPA Response: EPA appreciates the commenter’s support of the lifting of the administrative stay of the EPCRA section 313 reporting requirements for hydrogen sulfide.7 **Commenter:** Eric Berg [EPA

- HQ

- TRI

- 200 9

- 0844

- 0077]

Eric Berg 141 Bucks Mill Rd. Colts Neck, NJ 07722 ecberg@camden.rutgers.edu April 4, 2010

Office of Environmental Information (OEI) Docket Environmental Protection Agency Mail Code: 28221T 1200 Pennsylvania Ave., NW. Washington, DC 20460

C omment:

To whom it may concern:

I am writing to comment on the Environmental Protection Agency’s proposed rule regarding the reporting of hydrogen sulfide releases under the Emergency Planning
and Community Right

- to

- Know Act (“EPCRA”). 1

Section 313 of EPCRA requires owners and operators of facilities subject to EPCRA’s requirements to complete a toxic chemical release form for each toxic chemical listed under subsection (c) or listed by the EPA Administrator under subsection (d). The

Administrato r may use the rulemaking process to add or delete chemicals by the list. Chemicals may be added if the Administrator determines that there is sufficient evidence

to establish one of three criteria:

(A) That “[t]he chemical is known to cause or can re asonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases,” (the “acute human he alth effects criterion”);

(B) “The chemical is known to cause or can reasonably be anticipated to cause in

humans

– cancer or teratogenic effects, or serious or irreversible reproductive dysfunctions, neurological disorders, heritable genetic mutati ons, or other chronic health effects,” (the “chronic human health effects criterion”);

(C) “The chemical is known to cause or can reasonably be anticipated to cause, because of its toxicity... [and tendency to persist or]... bioaccumulate in the environme nt, a significant effect on the environment...” (the “environmental effects criterion”). 2

In 1993, hydrogen sulfide was added to the section 313 list of toxic chemicals. However, in 1994, the EPA issued an Administrative Stay of the reporting requirements for hydrogen sulfide “in order to evaluate issues brought to the Agency's attention after promulgation of the final rule concerning the human health effect basis for the listing and the Agency's use of
exposure analysis in EPCRA section 313 listing decisi ons.” 3 The EPA reports that it has now completed this evaluation, and has come to the conclusion that the Administrative Stay should be

lifted. 4

The EPA should lift the Administrative Stay. Hydrogen sulfide is a toxic substance that is clearly harmful t o human health. At 0.0047 parts per million (ppm), humans can smell8 hydrogen sulfide’s characteristic odor, commonly described as a “rotten egg” smell. 5 Hydrogen sulfide levels in the range of 500

- 1,000 ppm are acutely

life

- threatening. 6 Recognizing it s deadliness, the British briefly used hydrogen sulfide as a
chemical weapon during World War I. 7

Hydrogen sulfide can also cause chronic toxicity, affecting both the neurological and respiratory systems. 8 Long

- term, irreversible neurological effects can result from high exposure episodes. Nasal tract lesions and neurological effects can occur with exposure levels as low as 20
to 30 ppm. 9 Finally, the EPA also has sufficient evidence to believe that “has also been determined to cause ecotoxicity at relat ively low concentrations, and thus is considered to have
high ecotoxicity.” 10 Hydrogen sulfide thus satisfies all three of the section 313(d)(2) criteria for addition to the EPCRA toxic chemical release reporting list.

The public has a statutory right to know when a harmful chemical of this nature is released by the owner or operator of a polluting facility. Under both the letter and the spirit of EPCRA, releases of hydrogen sulfide should be reported under section 313.

Sincerely, Eric Berg Candida te for J.D., May 2011 Rutgers School of Law

- Camden

1 Hydrogen Sulfide; Community Right

- to

- Know Toxic Chemical Release, 40 C.F.R. § 372, Docket ID # EPA

HQ

- TRI

- 2009

- 0844 (2010).

2 Emergency Planning and Community Right

- to

- Know Act of 1986, § 313, 42 U.S. C. § 11023; Hydrogen Sulfide; Community Right

- to

- Know Toxic Chemical Release, 40 C.F.R. § 372, Docket ID # EPA

- HQ

- TRI

2009

- 0844 (2010).

3 Id

. 4 Id

. 5 The Science of Smell Part 1: Odor perception and physiological response

, http://www.extension.iastate.e du/Publications/PM1963A.pdf (accessed Apr. 4, 2010).

6 Hydrogen Sulfide; Community Right

- to

- Know Toxic Chemical Release, 40 C.F.R. § 372, Docket ID #

EPA

- HQ

- TRI

- 2009

- 0844 (2010).

7 While not as effective as other chemical weapons, hydrogen sulfide was used on two occasions when other gases were in short supply. See Charles Howard Foulkes, "Gas!" The Story of the Special Brigade 105 (Naval & Military P. ed. 2001) (1934).

8 Hydrogen Sulfide; Community Right

- to

- Know Toxic Chemical Release, 40 C.F.R. § 37 2, Docket ID #

EPA

- HQ

- TRI

- 2009

- 0844 (2010).

9 Id

. 10 Id

.

EPA Response: EPA appreciates the commenter’s support of the lifting of the administrative stay of the EPCRA section 313 reporting requirements for hydrogen sulfide.9 Commenter: Amanda Buck [EPA

- HQ

- TRI

- 2009

- 0844

- 0079]



# PUBLIC SUBMISSION **As of:** May 17, 2010

**Received:** April 13, 2010

**Status:** Posted

**Posted:** April 15, 2010 **Tracking No.** 80ad671a

**Comments Due:** April 27, 2010 **Submission Type:** Web

Docket: EPA

- HQ

- TRI

- 2009

- 0844 Hydrogen Sulfide; Methyl Mercap tan; Toxic Chemicals Right

- to

- Know; Stay of Reporting Requirements [400088]

Comment On: EPA

- HQ

- TRI

- 2009

- 0844

- 0021 Hydrogen Sulfide; Community Right

- to

- Know Toxic Chemical Release Reporting

Document: EPA

- HQ

- TRI

- 2009

- 0844

- 0079 Comment submitted by A. Buck



## Submitter Information

Submitter's Representative: Amanda Buck



## General Comment

Comment:

As a member of the scientific community, I am aware of the hazards of Hydrogen Sulfide exposure, and am capable to take the appropriate precautions to reduce my risk. My main concern/comment revolves around a question: why did it take more than 15 years for the Stay to be lifted? Also, what were the restrictions surrounding such a lengthy process: time, money,

man

- power? I thank you for your consideration.

EPA Response : The delay in taking action on the administrative stay of the EPCRA section 313 reporting requirements was a combination of competing actions, resources, and administration priorities.10 Commenter: Minnesota Department of Health (MDH) [ EPA

- HQ

- TRI

- 2009

- 084 4

- 0081]

April 29, 2010

Office of Environmental Information (OEI) Docket Environmental Protection Agency (EPA) www.regulations.gov

Re: EPA Docket ID No. EPA

- HQ

- TRI

- 2009

- 0844

Comment:

To whom it may co ncern:

The Minnesota Department of Health (MDH) is pleased to submit comments responding the U.S. Environmental Protection Agency (EPA) Intent to Consider Lifting Administrative Stay for Hydrogen Sulfide; Community Right

- to

- Know Toxic Chemical Release R eporting ( Federal Register Volume 75, Number 38, February 26, 2010)

.

The U.S. Congress required chemical release reporting in Section 313 of the Emergency Planning and Community Right

- to

- Know Act (EPRCA). As EPA notes, reporting requirements for hydrog en sulfide (H 2 S) were listed in the final rule (December 1, 1993), but an Administrative Stay was granted on August 22, 1994 so that EPA could further evaluate human health and environmental effects. MDH urges EPA to lift the stay because of extensive and increasing evidence that community exposures to H 2 S adversely affect public health. Further, MDH urges EPA to extend reporting requirements to include large Concentrated Animal Feeding Operations (CAFOs).

In support of lifting the stay, EPA cites the au thoritative review provided in its Integrated Risk Information System (IRIS; EPA 2003) of human health effects, including long

- lasting neurological effects, resulting from exposures to acute high levels of H 2 S. Of even greater importance for continuing rel eases and exposures, EPA cites the IRIS review of research indicating nasal lesions in olfactory mucosa observed in sub

- chronic studies in adult rats and mice, neurochemical changes in the cerebellum and frontal cortex in neuro

- developmental

studies of rat s, and changes in the micro

- anatomy of the cerebellum in neuro

- developmental rat

studies. EPA notes that effects occur at H 2 S levels as low as 20 to 30 ppm (28 to 42 mg/m3).

These sub

- chronic and neuro

- developmental findings are worth considering in mo re detail. First, IRIS provides corrections for partial day exposures and for differences in the rat and human respiratory systems, to arrive at a Human Equivalent Concentration (HEC) for continuing exposures. In the sub

- chronic critical study used by IRIS , animals were exposed 6 hours/day, 7 days a week for 10 weeks. Thus, to adjust for partial days, 30 ppm must be divided by 4, to arrive at a concentration of 7.5 ppm for nasal lesions for continuous exposure over 10 weeks. To extrapolate to humans for a g as respiratory effect in the extra

- thoracic region, IRIS arrived at a Human Equivalent Concentration of 1.9 ppm (LOAELHEC). No effect was observed in this study at 10 ppm, so the No Observed Adverse Effects Level

— HEC (NOAELHEC) for this study11 is 0.64 ppm.

The finding of toxicity as low as 2 ppm HEC is consistent with studies of humans discussed by the Agency for Toxic Substances and Disease Registry (ATSDR) (2006). ATSDR cites evidence that exposure to healthy volunteers to short

- term exposures as low a s 5 ppm resulted in increases in blood lactate concentrations and decreases in muscle citrate synthase activity indicative of inhibition of aerobic exercising muscle capacity (Bhambini and Singh 1991). ATSDR also notes

that short

- term exposure of asthmati cs to H 2 S results in increased airway resistance in some subjects, indicative of bronchial obstruction (Jappinen et al. 1990).

Neither the animal or human studies address long

- term or repeated exposures to hydrogen sulfide. However, ATSDR has also cite d community studies documenting effects when there are repeated exposures in the low ppb range. Campagna et al. (2004) found that following days when

H 2 S levels were above 30 ppb in a Nebraska community, there was an increase in asthma

- related hospital vis its among adults and children. Kilburn and Warshaw (1995) found that people working at oil processing plants or living downwind experienced nausea, headache, vomiting, breathing abnormalities, nosebleeds, depression and personality changes at levels of H 2 S between 10 ppb and 100 ppb.

These community studies are consistent with the American Industrial Hygiene Association (AIHA) Emergency Response Planning Guideline

- 1 (ERPG

- 1) of 100 ppb for H 2 S. The AIHA

considers this a maximum airborne concentration b elow which it is believed that nearly all individuals could be exposed for up to 1 hour without experiencing other than mild, transient adverse health effects or without perceiving a clearly defined objectionable odor. However, the ERPGs are used for guidi ng emergency response planning, and are meant for only one

- time or rare exposures. Repeated exposures to communities at these levels, such as those reviewed by ATSDR, are deleterious to public health.

ATSDR and MDH recently published a Health Consultat ion for the Excel Dairy in Thief River Falls, Minnesota (ATSDR/MDH, 2009) documenting over 400 half hour periods in which air

concentrations of H 2 S at the facility boundary were over 30 ppb (the Minnesota Ambient Air Quality Standard for H 2 S not to be exce eded more than twice in 5 days) from May to October of 2008. Over 100 periods were measured above 90 ppb (the maximum reading from Minnesota Pollution Control Agency (MPCA) continuous air monitoring equipment). Peak readings over 400 ppb were obtained by A TSDR at peoples’ residences, and over 30 periods above the ATSDR short term Minimum Risk Level of 70 ppb were measured at two residences during a two week period in July 2008. ATSDR and MDH declared the Excel Dairy to be a Public Health Hazard

and recommen ded that rapid, permanent and efficacious measures be taken to alleviate these

conditions.

Taken together, these findings suggest that repeated continuing exposures to H 2 S between 30 and 100 ppb are stressful for communities and are a public health haza rd. For this reason, MDH believes that it is important for EPA to lift the Administrative Stay of Toxic Release Inventory (TRI) reporting so that communities will be provided with information about H 2 S releases in

their communities.12 EPA Response: The co mmenter has provided a summary of the derivation of the Human Equivalency Concentration (HEC) calculation found in the IRIS evaluation of hydrogen sulfide (IRIS; EPA 2003) based on the data of Brenneman et al. (2000). There exists a unit conversion

error in this commenter’s description of the IRIS LOAEL HEC and NOAEL HEC calculations such that these values are represented as 1.9 ppm and 0.64 ppm, respectively. The proper values should be 1.9 mg/M 3 (1.38 ppm) and 0.64 mg/M 3 (0.46 ppm), respectively, as detai led in the IRIS document. Although this error exists

, the subsequent comments regarding the comparison of HECs and the human studies discussed in ATSDR (2006) remain pertinent.

The Agency would also like to thank this commenter for bringing additional research reports to our attention. The peer

- reviewed report by Campagna et al. (2004) in the Journal of Exposure Analysis and Environmental Epidemiology details a positive association between hospital visits for asthma and the previous day ambient air hy drogen sulfide levels in a Nebraskan population. In addition, a positive association was identified between children’s hospital visits for respiratory disease and the previous day ambient hydrogen sulfide levels.

Given the lack of human health dose

- respo nse studies, epidemiologic studies become an important resource for evaluating chemical hazards.

Comment:

Furthermore, as the Minnesota experience with the Excel Dairy illustrates, it is also important that EPA extend the TRI reporting requirements to C AFOs. In 2008 the Excel Dairy was permitted to house 1,100 dairy cows weighing over 1,000 pounds. Liquid manure from the barns was pumped into three uncovered waste basins. As noted above, air levels of H 2 S emanating from this facility have been declared a Public Health Hazard by MDH and ATSDR. Furthermore, the MPCA has noticed an intent to deny reissuance of the Excel Dairy permit.

EPA (2001) has estimated that 0.051 pounds per day of sulfur may be excreted by a lactating dairy cow. The Michigan Depart ment of Environmental Quality (2009) estimates that 0.05 pounds of hydrogen sulfide per day could be emitted in the summer and about a tenth that amount in the winter. These emissions factors suggest that between 10,000 to over 20,000 pounds per year of hy drogen sulfide could be emitted by a Dairy CAFO the size of Excel. Some Dairy CAFOs may have 5,000 or more cows according to EPA (2001) and may therefore emit proportionately more H 2 S. EPA (2001) also suggested emissions factors for other livestock and

pou ltry. These factors indicate that large CAFOs, especially large swine CAFOs, may emit quantities of H 2 S of health concern for surrounding communities. Communities need to be informed of potential emissions, and resulting air concentrations of H 2 S so that a ppropriate steps can be taken to protect public health.

In summary, MDH strongly supports lifting the administrative stay for Hydrogen Sulfide, Community Right

- to

- Know Toxic Chemical Release Reporting, and also urges EPA to extend reporting to CAFOs. Th ese actions are important steps for empowering communities to protect themselves from adverse health effects resulting from exposures to hydrogen sulfide.

Sincerely,13 Rita B. Messing, Ph.D., Toxicologist Supervisor, Site Assessment and Consultation Project Director, ATSDR Program to Conduct and Coordinate Site

- Specific Activities

Cc: Gaylen Reetz, Director, Regional Division, MPCA Rick Strassman, Supervisor, Air Quality Monitoring, MPCA Mark Johnson, ATSDR Senior Region 5 Representative

A lan Yarbrough, Site

- Specific Activities Cooperative Agreement Lead, ATSDR

References: AIHA. Emergency Response Planning Guidelines. http://www.aiha.org/foundat ions/GuidelineDevelopment/ERPG/Pages/default.aspx ATSDR, 2006. Toxicological Profile for Hydrogen Sulfide. http://www.atsdr.cdc.gov/toxprofiles/index.asp ATSDR/MDH, 2009. Health Consultation : Excel Dairy, Excel Township, Marshall Co.

Minnesota. http://www.health.state.mn.us/divs/eh/hazardous/sites/marshall/exceldairy/index.html

Bhambhani Y an d Singh M., 1991. J. App. Physiol. 71(5):1872

- 1877. Campagna, D. et al., 2004. J. Exp. Anal. & Env. Epi. 14:180

- 187. EPA, 2001. Emissions from Animal Feeding Operations, Draft. Emissions Standards Division. Office of Air Quality Planning and Standards. R esearch Triangle Park, NC: EPA

Contract No. 68

- D6

- 0011, Task Order 71. http://www.epa.gov/ttn/chief/ap42/ch09/draft/draftanimalfeed.pdf EPA, 2003. IRIS file for Hydrogren Sul fide. http://www.epa.gov/ncea/iris/subst/0061.htm Jappinen, P. et al., 1990. Br. J. Ind. Med. 47:824

- 828. Michigan Dept. of Environmental Quality, 2009. Dairy Emissions Worksheet. www.michigan.gov/documents/deq/deq

- ess

- cafo

- worksheet

dairyemissions_266406_7.pdf

- 2009

- 02

- 13

EPA Response: EPA appreciates the commenter’s support of the lifting of the administrative stay of the EPCRA section 313 reporting requirements for hydrogen sulfide. With regard to the

addition of Concentrated Animal Feeding Operations (CAFOs) to the list of industry sectors that report under EPCRA s ection 313, EPA is currently evaluating additional industry sectors for possible addition.14 Commenter: Waterkeeper Alliance [ EPA

- HQ

- TRI

- 2009

- 0844

- 0082]

VIA REGULATIONS.GOV

May 06, 2010

U.S. Environmental Protection Agency

Office of Environmental Informa tion Docket

Mailcode: 28221T 1200 Pennsylvania Ave., NW Washington, D.C. 20460

Re: Intent to Consider Lifting Administrative Stay of Hydrogen Sulfide Reporting; Docket No. EPA

- HQ

- TRI

- 2009

- 0844

These comments are submitted by Waterkeeper Alliance (“Wate rkeeper”) in support of lifting the administrative stay of the toxic chemical release reporting requirements for hydrogen sulfide under section 313 of the Emergency Planning and Community Right

- to

- Know Act (“EPCRA”).

Waterkeeper Alliance, Inc. is a non

- pr ofit organization representing the interests of 195 member watershed groups. Each of these groups and their members have the express mission to preserve and protect local waterbodies for aesthetic, recreational, and other purposes. Waterkeepers

combine f irsthand knowledge of their waterways with an unwavering commitment to the rights of their communities and to the rule of law. As it relates to this action, Waterkeeper is exceedingly concerned with the human health and environmental effects of hydrogen su lfide.

BACKGROUND

Over sixteen years ago, on December 1, 1993, the United States Environmental Protection Agency (“EPA”) added hydrogen sulfide to the EPCRA Toxics Release Inventory (the “TRI” or “313”) list of toxic chemicals. EPCRA section 313 require s authorities to annually collect data on releases and transfers of listed toxic chemicals and to make that data available to the public in

the TRI. 1 “The goal of TRI is to empower citizens, through information, to hold companies and local governments acc ountable in terms of how toxic chemicals are managed.” 2 Accordingly, any facility that manufactures, processes or otherwise uses a listed chemical(s) in an amount above the reportable quantity must report its environmental releases in an annual TRI report

.

To ensure appropriate realization of these goals and purposes, in adding a chemical to the TRI

list EPA must demonstrate that the chemical meets at least one of the criteria listed in ECRCA Section 313(d)(2). As it pertains to hydrogen sulfide, EPA bas ed its original TRI listing decision on two criteria. First, EPA found that hydrogen sulfide can cause chronic impacts to human health due to its neurotoxic nature. 3 Second, EPA found that hydrogen sulfide can produce environmental impacts by, among othe r ways, causing acute aquatic toxicity. 415 However, on August 22, 1994, EPA issued an administrative stay of the EPCRA 313 reporting requirements for hydrogen sulfide. This administrative stay did not remove hydrogen sulfide from the TRI list; it merely de ferred the reporting requirements for hydrogen sulfide until a few additional assessments could be conducted. In short, those assessments focused on the supplementation of the Agency’s evaluation of the human health effect basis for listing hydrogen

sulfi de.

On February 26, 2010, EPA proposed lifting the administrative stay for hydrogen sulfide reporting under EPCRA section 313. If finalized, communities will at last be provided with the fundamental information regarding the sources and quantities of hyd rogen sulfide being released in their ambient environments. Given that hydrogen sulfide is a highly pernicious chemical, communities deserve to know the degree to which this chemical is being released, and the opportunity to protect themselves against the resulting preventable harm.

ABOVE REPORTABLE QUANTITIES, HYDROGEN SULFIDE EXPOSURE IMPAIRS

HUMAN HEALTH AND THE ENVIRONMENT

Comment:

Technical evaluation of hydrogen sulfide shows that is can reasonably be anticipated to cause chronic and hazardous imp acts to human health and the environment. EPA has compiled a sufficient record to support this determination.

Human Health Effects of Hydrogen Sulfide

As stated in EPA’s Notice of Intent to Consider Lifting the Administrative Stay for Hydrogen

Sulfide (“Notice”) and as further detailed in EPA’s most recent Integrated Risk Information System (“IRIS”) Toxicological Review of Hydrogen Sulfide,

[h]hydrogen sulfide is a colorless, acutely toxic gas at high concentrations. Hydrogen sulfide gas is absorbed rapidly through the lungs and can be absorbed through the gastrointestinal tract. Oral exposure is not likely to occur. In animals and humans, it distributes to the blood, brain, lungs, heart, liver, spleen, and kidneys. Oxidation is the primary m etabolic pathway for hydrogen sulfide....A considerable body of case studies exists on the human health impacts resulting from acute exposure to high levels of hydrogen sulfide. Levels in the range of 500 to 1,000 parts per million (ppm)...are life

- threaten ing and can cause immediate unconsciousness followed by serious and debilitating neurologic and respiratory sequelae and death. While complete recovery from a high exposure episode has been reported, more often long term or even irreversible harmful ne urologic effects remain. 5

Of the numerous persistent, adverse neurological effects that could result from acute exposure to hydrogen sulfide, brain damage is one of the most studied. Brain damage is believed to result from the “essentially hypotoxic” 6 co ndition that occurs when people who are exposed to high levels of hydrogen sulfide are not able to inhale a sufficient amount of oxygen. Without oxygen, the brain tissue cannot sustain itself and will result in neuronal impairment and cell death. The16 lon ger the human body is deprived of an adequate supply of oxygen, the more damage that will

occur.

For example,

[t]he observed nonirritant effects produced in mammals from exposure to hydrogen sulfide gas may primarily be attributed to the cellular anox ia produced by inhibition of cytochrome oxidase....Hence, cells with a high oxygen demand, such as those in brain and cardiac tissue are thought to be more sensitive to disruption of oxidative metabolism and may be considered selected targets for the toxicit y of hydrogen sulfide. 7

Based on these and numerous other findings and studies, EPA determined that hydrogen sulfide exposure can impact human health in two principal manners. First, exposure can produce chronic respiratory problems, including nasal trac t lesions; second, exposure can result in irreversible and adverse neurological effects. “These effects occur in a clear dose concentration manner with the lowest level of hydrogen sulfide exposure associated with these effects ranging from 20 to 30 ppm.” 8 Due to these effects, EPA believes that hydrogen sulfide meets the requirements of EPCRA section 313.

EPA Response: The Agency concurs with this commenter’s summation of the human health effects associated with hydrogen sulfide.

Comment:

Environme ntal Impacts of Hydrogen Sulfide

In support of its determination that hydrogen sulfide exposure can impact the environment, EPA explains that, “[a] number of ecotoxicity studies have been conducted on hydrogen sulfide, mainly on freshwater invertebrates and fish. Acute, chronic, and early

- stage toxicity values for hydrogen sulfide include numerous values that are well below 1 milligram per liter (mg/L), indicating that hydrogen sulfide is toxic at very low concentrations.” 9 Upon analysis of these

and n umerous other studies, EPA determined that hydrogen sulfide can reasonably be anticipated to cause serious and possibly irreversible damage to the environment. As a result, hydrogen sulfide also meets the requirements of EPCRA section 313.

EPA Response: The Agency concurs with this commenter’s summation of the environmental impacts associated with hydrogen sulfide.

Comment:

WATERKEEPER SUPPORTS THE LIFTING OF THE ADMINISTRATIVE STAY FOR

HYDROGEN SULFIDE REPORTING UNDER SECTION 313 OF EPCRA

After a reasoned evaluation of the environmental and human health hazards of hydrogen sulfide exposure, EPA determined “that there is no basis for continuing the Administrative Stay of the17 reporting requirements for hydrogen sulfide” and supports a lifting of the stay. 10 Waterkeeper believes that EPA’s decision to lift this administrative stay is supported by the record, and that it is in the best interest of human health and the environment. Accordingly, we support the lifting of the administrative stay of toxi c chemical release reporting requirements for hydrogen sulfide under section 313 of EPCRA by the EPA.

Sincerely,

Hannah Connor Waterkeeper Alliance

1 See 42 U.S.C. § 11023.

2 United States Environmental Protection Agency, What is the Toxics Release Inventory (TR I ) Prog r am, http://www.epa.gov/tri/triprogram/whatis.htm (last visited May 05, 2010).

3 See 42 U.S.C. § 11023 (d)(2)(B); 75 Fed. Reg. 8889, 8891 (Feb. 26, 2010).

4 See 42 U.S.C. § 11023 (d)(2)( C ); 75 Fed. Reg. at 8891.

5 75 Fed. Reg. at 8891.

6 Id.

7 Id. at 8892

8 Id. at 8893.

9 Id.

10 Id.

EPA Response: EPA appreciates the commenter’s support of the lifting of the administrative stay of the EPCRA section 313 reporting requir ements for hydrogen sulfide.18 Commenter: Food & Water Watch [EPA

- HQ

- TRI

- 2009

- 0844

- 0083]

May 11, 2010

EPA Docket Center (EPA/DC) EPA West, Room 3334

1301 Constitution Ave. NW Washington, DC 20460

Re: Docket ID # EPA

– HQ

– TRI

– 2009

– 0844

To Whom It May Concern:

Comment:

Food & Water Watch, a national nonprofit consumer advocacy organization, supports the Environmental Protection Agency’s proposal to lift the administrative stay of section 313 of the Emergency Planning and Community Right

-- ‐ to

-- ‐ Know Act (EPCRA), the toxic chemical release reporting requirements for hydrogen sulfide (Docket ID # EPA

– HQ

– TRI

– 2009

– 0844.) The basis that EPA has used to determine that hydrogen sulfide is dangerous to human health

and the environment is reasonabl e. Lifting the administrative stay is vitally important, as it is not unusual for hydrogen sulfide releases from concentrated animal feeding operations to occur at levels demonstrated by EPA studies to cause dangerous health effects in humans. Given EPA's

non

-- ‐ enforcement of air releases from CAFOs through the Clean Air Act Compliance Agreement, as well as the recent exemption of small and medium

-- ‐ sized CAFOs from CERCLA/EPCRA reporting requirements, the monitoring and publishing of dangerous releases of hydro gen sulfide from large CAFOs is a long overdue first step in ensuring the health and safety of rural communities where these facilities are located.

EPCRA’s stated purpose is to “inform the general public and the communities surrounding

covered facilitie s about the releases of toxic chemicals . . ..” i Concentrated animal feeding operations, or CAFOs, are responsible for the release of significant amounts of toxic chemicals into the air each day. The two most hazardous chemicals emitted from CAFOs are ammo nia and hydrogen sulfide, and they are emitted in concentrations that are potentially harmful to nearby

residents. ii Communities surrounding CAFOs deserve to know what is being emitted from these facilities, particularly when chemicals like hydrogen sulfid e are released in dangerous amounts.

As the EPA toxicology review of hydrogen sulfide demonstrates, hydrogen sulfide is a toxic chemical that can cause a variety of health problems when overexposure occurs, ranging from dizziness, nausea, and headaches, to complete physical collapses, respiratory failure, hypoxia,

and death. iii Hydrogen sulfide releases from CAFOs have been credited with excessive diagnoses of respiratory and digestive disturbances, and hydrogen sulfide and 2 ammonia emissions from

CAFOs have been linked to asthma, bronchitis, and other respiratory diseases in facility

workers. iv

In 2003, the University of Iowa and Iowa State University performed an extensive and thorough study on the air quality impacts of concentrated animal feeding op erations, including the impacts19 of hydrogen sulfide releases. Hydrogen sulfide can cause adverse health effects in concentrations as low as 10 parts per million (ppm), v and can be life threatening at levels of 500 ppm. vi

Emissions from CAFOs were shown to exceed lethal levels under certain circumstances. In liquid manure holding pits, which are common for swine CAFOs, releases of hydrogen sulfide can be at concentrations of 1000 ppm or higher when waste from the lagoons is agitated prior to being pumped out of the facility. vii

While hydrogen sulfide has a strong rotten egg

-- ‐ like smell at lower concentration levels, the intensity of the smell does not increase significantly with higher levels of exposures. In fact, at levels that become dangerous to human health (above 150 ppm), the intensity of the smell of hydrogen sulfide actually decreases. viii The EPA toxicological review of hydrogen sulfide recognized that the rotten

-- ‐ egg odor is an “inadequate warning indicator of exposure since levels in the range of 100

-- ‐ 200 ppm (140

-- ‐ 280 mg/m 3 ) can lead to loss of smell followed by olfactory paralysis.” ix Since this level is indeed above that which can be emitted from CAFOs, workers at these facilities and nearby residents would have no way of knowing whether th ey are in danger based on the smell alone, therefore the reporting of emissions of hydrogen sulfide in excess of EPCRA limits is essential in providing community members the information they need to protect their health.

Based on two prior agency actions , the EPA has shown that it has been unwilling to regulate air emissions from CAFOs. In 2005, EPA made a sweetheart deal with the CAFO industry with its Clean Air Act Compliance Agreement. In exchange for a nominal fee, CAFO operators were

released from li ability, and their emissions were to be monitored in order to provide the EPA with information that would supposedly allow the agency to promulgate regulations on emissions

under the Clean Air Act. x The study was to be completed in 2009, but as of yet, EPA has released zero information to the public regarding the study and has not made any progress in the rulemaking process. Five years after the compliance agreement was first announced, there is still

no information from the EPA on the amount of harmful emi ssions that are coming out of CAFOs. In addition, those CAFOs participating in the Air Compliance Agreement are virtually exempt from EPCRA reporting requirements for ammonia (and presumably hydrogen sulfide) as

well. xi

EPA's second gift to the CAFO indu stry occurred in 2008 when the agency chose to exempt

small and medium

-- ‐ sized CAFOs from EPCRA reporting requirements. xii Large CAFOs are still required to report emergency emissions under EPCRA section 304. xiii Even if the administrative stay on EPCRA reporting of hydrogen sulfide releases is lifted, there will still be no i nformation available on any potentially deadly releases of hydrogen sulfide from small and medium

-- ‐ sized CAFOs into their communities. This is completely unacceptable, and is further example of EPA shirking its duties under the Clean Air Act.

With EPA’s failure to regulate the air emissions from CAFOs under the Clean Air Act, EPCRA is the only option left that citizens in communities surrounding CAFOs have for finding out what hazardous substances are actually being emitted into the air. As the research has shown, hydrogen sulfide is a very real and dangerous threat from Concentrated Animal Feeding Operations. Large CAFOs that are not exempt from reporting requirements should be required to report their emissions of hydrogen sulfide that are in excess of CERCLA/EPRCA limits. Food &20 Water Watch supports EPA's proposal to end the administrative stay on reporting requirements for hydrogen sulfide.

Thank you for your consideration of these comments.

Sincerely,

Wenonah Hauter

Executive Director

i 40 CF R § 372.1 (2009).

ii Iowa State University and the University of Iowa Study Group. “Iowa Concentrated Feeding Operations Air Quality Study.” February 2002 at 6.

iii U.S. Environmental Protection Agency. “Toxicological review of hydrogen sulfide.” CAS No. 7 78

- 06

- 4.

June 2003 at 10.

iv Donham, Kelly J., et al. “Community health and socioeconomic issues surrounding concentrated animal feeding operations.” Environmental Health Perspectives , vol. 115, iss. 2. February 2007 at 317

- 318.

v Sweeten, John M., et al. Confined Livestock Air Quality Committee of the USDA Agricultural Air Quality Task Force. “Air quality research and technology transfer white paper and recommendations for concentrated animal feeding operations.” July 19, 2000 at 14.

vi U.S. Environmental Protection Agency. “Toxicological review of hydrogen sulfide.” CAS No. 778

- 06

- 4.

June 2003 at 51

- 52.

vii Iowa State University and the University of Iowa Study Group. at 118, 124.

viii Iowa State University and the University of Iowa Study Group. at 124.

i x U.S. Environmental Protection Agency. “Toxicological review of hydrogen sulfide.” CAS No. 778

- 06

- 4.

June 2003 at 10.

x U.S. Environmental Protection Agency. "Thousands sign up for animal feeding operations air compliance agreement." Press release. August 15, 2005.

xi U.S. Environmental Protection Agency. "CERCLA/EPCRA Administrative Reporting Exemption for Air releases of hazardous substances from animal waste at farms." Fact Sheet. February 2009.

xii 73 Fed. Reg. 76948, 76950, (Dec. 18, 2008).

xiii 73 Fe d. Reg. 76948, 76950, (Dec. 18, 2008).

EPA Response: EPA appreciates the commenter’s support of the lifting of the administrative stay of the EPCRA section 313 reporting requirements for hydrogen sulfide. With regard to the

addition of Concentrated Ani mal Feeding Operations (CAFOs) to the list of industry sectors that report under EPCRA section 313, EPA is currently evaluating additional industry sectors for possible addition.21 Commenter: Anonymous [ EPA

- HQ

- TRI

- 2009

- 0844

- 0084]



# PUBLIC SUBMISSION **As of:** May 17, 2010

**Received:** May 12, 2010

**Status:** Posted

**Posted:** May 13, 2010 **Tracking No.** 80aeb8b5

**Comments Due:** May 12, 2010 **Submission Type:** Web

Docket: EPA

- HQ

- TRI

- 2009

- 0844 Hydrogen Sulfide; Methyl Mercaptan; Toxic Chemicals Right

- to

- Know; Stay of Reporting Requirements [400088]

Comment On: EPA

- HQ

- TRI

- 2009

- 0844

- 0078 Community Right

- to

- Know Toxic Chemical Release Reporting: Hydrogen Sulfide; Extension of

Comment Period

Document: EPA

- HQ

- TRI

- 2009

- 0844

- 0084 Anonymous public comment



## Submitter Information

**Gener al Comment** 

Comment: Hydrogen sulfide has the potential to be an extremely toxic substance. While it can often be found as a naturally occurring compound in swampy areas or even in small amounts produced by the human body, it can be lethal in larger amounts . Long term exposure is also detrimental. These are obvious facts that can be procured in a basic Chemistry class and yet there is an administrative stay in place that says that there does not need to be any reporting on levels of hydrogen sulfide. While I can understand the rationale, there needs to be steps taken to protect the public. Obviously there is not much that can be done in order to quell the effects of naturally produced hydrogen sulfide, but we can control industrial production and require comp anies to report the figures. I fully commend you on this regulation that would lift the administrative stay. I find that the fact that states that hydrogen sulfide was added to a list of toxic chemicals in 1993 to be perhaps the largest determining factor in lifting the stay as well as the effects on the human body. Also, if you take a look at the effect that hydrogen sulfide, in quantities greater than what is naturally found, could have upon our ecosystem then we, as the public, certainly have the right t o know. Even if hydrogen sulfide was only toxic to, say, fish or even livestock, then we are still posing the danger that hydrogen sulfide could cause some form a genetic mutation which could be harmful to humans that ingest the food. There are way too man y possibilities out there and too much information available to uphold the administrative stay. It’s time we lift it and provide the public with their right to the knowledge.

EPA Response: EPA appreciates the commenter’s support of the lifting of the adm inistrative stay of the EPCRA section 313 reporting requirements for hydrogen sulfide.22 Commenter: National Renderers Association [ EPA

- HQ

- TRI

- 2009

- 0844

- 0086 ]

May 12, 2010

Environmental Protection Agency EPA Docket Center (EPA/DC) ID No. EPA

– HQ

– TRI

– 2009

– 0844 1200 Pennsylvania Avenue, NW Washington, DC 20460

RE: Hydrogen Sulfide; Community Right

- to

- Know Toxic Chemical Release Inventory Reporting (TRI)

The National Renderers Association (NRA) is the international trade association for the industry

that sa fely and efficiently recycles animal agriculture by

- products into valuable ingredients for the livestock, pet food, chemical and consumer product industries in a manner that is protective of our environment. NRA represents its members’ interests to Congre ss, regulatory and other government agencies, promotes greater use of rendered products, and fosters the opening and expansion of trade between North American exporters and foreign buyers. NRA’s membership represents more than 98 percent of the rendering capacity in both the U.S. and Canada, and we estimate that our members have spent more than $100 million in recent years on environmental controls that help protect the environment where we live and work.

Comment:

We do not support listing hydrogen sulfi de emissions from rendering plants under the EPCRA regulations because of the extremely low level of hydrogen sulfide potentially emitted from rendering plant operations. These emissions are likely to be well below levels of concern for

human health and th e environment. We agree with EPA that, at certain concentration levels, exposure to hydrogen sulfide can cause significant adverse acute and chronic human health effects and adverse impacts to the environment. These potentially harmful concentrations are well understood, published, and regulated under OSHA and NIOSH standards that we are required to comply with as part of facility operations. There are levels of exposure to hydrogen

sulfide that can be considered safe and the fence

- line concentration of hydrogen sulfide at a typical rendering plant would be expected to be well below a “safe” level. Therefore, we recommend that EPA’s evaluation take into account the “concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases,” as required under EPCRA section 313(d)(2)(A), and exempt reporting of emissions of hydrogen sulfide as a by

- product of rendering operations.

EPA Response: As EPA discussed in the Notice of In tent to Lift the Stay (75 FR 8893, 8889, February 26, 2010), exposure consideration is not appropriate for chemicals that have moderately high to high chronic human health toxicity or high environmental toxicity. Hydrogen sulfide

meets both of these crite ria, therefore exposure (or the potential for exposure) is not a factor in the listing decision.

Regarding EPCRA section 313(d)(2)(A), hydrogen sulfide is not listed under that criteria, but rather the criteria of EPCRA sections 313(d)(2)(B) and (C).23 C omment:

Hydrogen sulfide is a naturally occurring gas associated with the anaerobic bacterial decay of organic matter. Roughly 90% of the total hydrogen sulfide in the atmosphere comes from natural sources such as volcanoes, oceans, stagnant waters like t hose found in swamps and bogs, and

manure. About 100

- 324 million tons of hydrogen sulfide are annually emitted from these sources (ATSDR, 2006). Although difficult to quantify and highly variable, a typical rendering plant might emit roughly 400 pounds ( not tons) of hydrogen sulfide per year. Hydrogen sulfide degrades rapidly in the environment, with an effective life

- time of 2.3 days or less, based on a yearly average (ATSDR, 2006) so emissions are not likely to accumulate in the environment.

Hydrogen sulfide can be found in very low concentrations throughout the rendering industry supply and processing chain as a by

- product related to the recycling, collecting, handling and processing of animal byproduct and used cooking oil. Hydrogen sulfide release s in the rendering facility workplace environment tend to be fugitive in nature, inconsistent in concentration, and irregularly present. The presence of hydrogen sulfide, if any, depends on the age of the raw materials, moisture content, temperature, state of anaerobic bacterial decay, and

other factors.

Hydrogen sulfide concentration emissions from a typical rendering plant likely result in air

concentrations off

- site that would be several orders of magnitude below concentrations that are potentially haza rdous to human health and the environment.

As a result of these characteristics, the hydrogen sulfide that may be present in a rendering facility is not likely to reach site boundaries at any measureable or reliably quantifiable concentration. Through our years of studying potential hydrogen sulfide emissions in rendering operations, we know that it is difficult to quantify and report the low levels of emissions that may occur at our facilities. Therefore, we suggest that the addition of hydrogen sulfide t o TRI listing by EPA must, at a minimum, allow for no TRI requirements for de minimums sources such as facilities in the rendering supply and processing chain.

EPA Response: It is well known that hydrogen sulfide is a byproduct of the rendering process ( 1). EPA has published emission factors for at least one stage of the rendering process (2). The commenter believes that reporting would be difficult for hydrogen sulfide, yet they provide an estimate of 400 pounds of releases per year, thus it appears th at these facilities could make at least a reasonable estimate of releases as required under EPCRA section 313. EPA notes that rendering plants must already report their release of ammonia, another gas with variations in production and release. Regarding whether or not “ emissions from a typical rendering plant likely result in air concentrations off

- site that would be several orders of magnitude below concentrations that are potentially hazardous to hu man health and the environment,” unless the

release dat a is made available the local communities and governments will not be able to confirm this conclusion. EPCRA section 313 contains no provisions for de minimis sources other than the fact that facilities must exceed the reporting thresholds (25,000 pounds for manufacture and processing and 10,000 pounds for otherwise use). It appears that rendering plants do not use hydrogen sulfide, thus they would have to manufacture or process 25,000 pounds before they would have to file a report.24 1. Emission Factor Documentation for AP

- 42 Section 9.5.3 Meat Rendering Plants Final Report. prepared by Midwest Research Institute (MRI) for the Office of Air Quality Planning and Standards (OAQPS), U. S. Environmental Protection Agency (EPA), under EPA

Contract No. 68

- D2

- 0159. September 1995

.

2. AP 42, Fifth Edition, January 1995. Compilation of Air Pollutant Emission Factors, Volume I: Stationary Point and Area Sources. Chapter 9: Food and Agricultural Industries section 9.5.3 Meat Rendering Plants . Office of Air Quali ty Planning and Standards (OAQPS), Office of Air and Radiation, U. S. Environmental Protection Agency (EPA).

Comment:

If not for rendering in tithe U.S., 54 billion pounds of biological materials would be land filled, burned, buried, or inappropriately d umped with potentially huge uncontrolled amounts of carbon dioxide, methane, nitrogen nutrient, and other compounds ending up inn our air and water. From one landfill abalone, it is estimated that 16 tons of hydrogen sulfide is released into the air

annual ly (ATSDRR, 2006), which is far more ((by several orders of magnitude) than the anticipated release from a typical rendering facility. When rendered, these products are dried, stabilized, and recycled for animal feed and energy. Many rendering companies a lso recycle used cooking oil from the restaurant and fast food industry to make befoul. Renderers are dedicated to improving the environment and have been doing so for many years. The rendering industry business model, in fact, is an important and valuable recycling industry that efficiently reduces environmental impacts that these biological materials might otherwise cause.

The NRAA and the rendering industry are fully supportive of scientifically defensible and reasonable efforts to protect our nation’s environment. The NRA estimates that many millions of dollars are spent annually by the rendering industry on pollution control efforts. However, broad and overly protective efforts increase regulatory burdens and drive up costs that hinder our industry’s efforts to be economically sustainable and ultimately are counterproductive for our industry and the environment. We implore EPA to work with the rendering industry to accomplish worthy environmental goals that do not needlessly impose additional restrict ions on rendering plant operations when there are practices currently in place that effectively protect worker safety, and human health and the environment. Moreover, additional restrictions on plant operations can force rendering plants out of business th at will result in lost jobs, and a potentially worse environmental outcome if biological materials are not recycled via rendering but,, rather,

are land

- filled, burned, buried or inappropriately dumped.

We appreciate this opportunity to provide comments o n this proposed rule,, and EPA’s

consideration of our recommendations.

Senior Vice President, Scientific

Services25 National Renderers Association

Reference: Agency for Toxic Substances and Disease Registry (ATSDR)), 2006. Toxicological Profile for

H ydrogen Sulfide. UU. S. Department of Health and Human Services. Public Health Service. July.

EPA Response: EPA does not believe that the cost of filing one additional report under EPCRA section 313 would force a rendering plant out of business. EPCRA section 313 imposes no restrictions on the operation of a rendering plant; the only requirement is to file an annual report using reasonable estimates of releases and waste management quantities, as many of these facilities already file. EPA does not bel ieve that providing the public with information on the releases and wastes management quantities of a highly toxic chemical such as hydrogen sulfide would be a broad or overly protective regulatory requirement.26 Commenter: Hydrogen Sulfide Consortium [ E PA

- HQ

- TRI

- 2009

- 0844

- 0087]

Comment:

I. EPA CANNOT PROPERLY LIMIT COMMENTS TO WHETHER OR NOT EPA

SHOULD LIFT ITS ADMINISTRATIVE STAY OF EPCRA SECTION 313 REPORTING REQUIREMENTS

In its proposal to lift the current stay of reporting requirements under EPCRA Section

313 for H 2 S, EPA asserts:

By this current action, EPA is not revisiting the original listing decision, which was accomplished by final rule on December 1, 1993. Rather, EPA is merely presenting its rationale for why the Administrative Stay of rep orting requirements for hydrogen sulfide

should be lifted. 12

This characterization of the nature of the EPA proposal and of the scope of the opportunity for comment that EPA must provide is not supportable as a matter of fact or law. EPA has a legal

obli gation to reconsider its original listing determination, and to make a new determination that
one or more of the statutory criteria in EPCRA Section 313(d)(2) 13 have been satisfied before it may consider lifting the current stay. This obligation exists be cause this is what EPCRA requires as a matter of law, and EPA properly acknowledged it would do this when it adopted the administrative stay that it is now “announcing its intention” to lift. EPA has also acknowledged discrepancies between the rationale i t provided when it first proposed a rule to list H 2 S and the rationale it provided when it adopted a final rule listing H 2 S. EPA stated that it would clarify its policy concerning use of exposure analysis to support listing under EPCRA Section 313(d)(2)

an d then adopted its current policy subsequent to the administrative stay. It must now afford an opportunity for comment on the manner in which it has applied that policy.

EPA Response:

Commenters’ overarching argument is that “EPA cannot properly limit comments to whether or not EPA should lift its administrative stay of EPCRA section 313 reporting requirements,” but rather must revisit the original listing decision accomplished by final rule in 1993. In support of this argument, c ommenters assert that: 1) EPA stated, when it issued the administrative stay in 1994, that it would revisit the original listing decision; 2) EPA cited chronic respiratory effects as one of the bases for listing under EPCRA section 313(d)(2)(B) in the proposed rule, but chroni c neurotoxic effects as a basis under that same provision in the final rule; 3) EPA adopted its current policy regarding exposure analyses subsequent to the 1993 listing of hydrogen sulfide; and 4) EPA “must make a new listing determination before it may l ift [the stay].” For the reasons stated below, EPA disagrees with c ommenters that EPA must revisit the original listing decision in the context of EPA’s consideration of lifting the administrative stay of the EPCRA reporting requirements for hydrogen sulf ide.

As described in detail below, EPCRA section 313(d)(2) states that EPA may add a27 chemical to the list if “there is sufficient evidence to establish any one ” (emphasis added) of the listing criteria specified in section 313(d)(2). Therefore, to add a chemical, EPA must

demonstrate that at least one criterion is met, but need not determine whether any other criterion

is met.

EPA proposed to add hydrogen sulfide to the EPCRA section 313 list of toxic chemicals

on September 8, 1992 (57 FR 41020) based on a determination that there was sufficient evidence establishing both chronic human health effects per EPCRA section 313(d)(2)(B) (specifically, chronic respiratory effects) and environmental effects per EPCRA section 313(d)(2)(C) (specifically, acute aq uatic toxicity). On December 1, 1993, EPA promulgated a f inal r ule adding hydrogen sulfide to the EPCRA section 313 list of toxic chemicals ( 58 FR 63500) (effective January 1, 1994). In the f inal r ule, the listing decision was based on a determination

th at there was sufficient evidence establishing environmental effects per EPCRA section 313(d)(2)(C) (specifically, the same acute aquatic toxicity as identified in the p roposed r ule) and chronic human health effects per EPCRA section 313(d)(2)(B). In the f inal r ule, however, the chronic human health effects finding was based on chronic neurotoxic effects, instead of chronic respiratory effects as stated in the p roposed r ule.

After the final rule was issued adding hydrogen sulfide to the EPCRA section 313 list, and notwithstanding the fact that the Agency cited the same acute aquatic toxicity as an “environmental effects” basis for the listing under EPCRA section 313(d)(2)(C) in both the proposed rule and the final rule, some members of the regulated commun ity expressed a concern

that the Agency cited chronic respiratory effects as a “chronic human health effects” basis under EPCRA section 313(d)(2)(B) in the proposed rule, but chronic neurotoxic effects as a “chronic

human health effects” basis under that s ame provision in the final rule. In addition, after issuance of the final rule, some members of the regulated community expressed concern that EPA’s decision not to include an exposure analysis in deciding to list hydrogen sulfide on the

basis of chronic human health effects was inconsistent with past Agency practice. As a result of these concerns, some commenters threatened to bring legal action challenging the final rule.

In response to the post

- promulgation comments and concerns raised by some in t he regulated community, and notwithstanding the fact that the listing decision was appropriate

based on the acute aquatic toxicity finding alone under EPCRA section 313(d)(2)(C) , EPA issued an administrative stay of the EPCRA section 313 reporting requirem ents for hydrogen sulfide on August 22, 1994 (59 FR 43048) in order to review those post

- promulgation comments and

concerns

.

The stay issued on August 22, 1994 made clear that: “The effect of this stay is to defer
reporting on [hydrogen sulfide] while the Agency reviews new data and information made

available subsequent to the promulgation of the final rule .” 59 FR 43048 (Aug. 22, 1994) (emphasis added). As a result, while the subsequent stay deferred reporting requirements, the stay did not remove h ydrogen sulfide from the EPCRA section 313 list or alter that final listing determination, which remained in effect as of January 1, 1994. The listing determination was never administratively or judicially challenged.

On February 26, 2010, EPA issued a notice announcing its “Intent to consider lifting [the28 hydrogen sulfide] administrative stay; opportunity for public comment.” 75 FR 8889 (hereinafter Intent to Lift the Stay ). That documen t stated : “The purpose of this document is to provide the public with th e opportunity to comment on EPA’ s review of the currently available data on the human health and environmental effects of hydrogen sulfide ... and EPA’ s belief that the Administrative Stay shoul d be lifted based on that data.... In addition, this docu ment addresses the concerns raised regarding use of exposure analyses. ” Id . at 8891. The I ntent to Lift the Stay notice clearly explained: “By this current action, EPA is not revisiting the original listing decision , which was accomplished by f inal r ule on December 1, 1993. Rather, EPA is merely presenting its rationale for why the Administrative Stay of the reporting requirements for hydrogen sulfide should be lifted. ” Id . at 8889 (emphasis added). Again, the final rule of December 1, 1993, adding hy drogen sulfide to the EPCRA section 313 list of toxic chemicals was never administratively or judicially challenged.

Comment:

A. When EPA Entered the Administrative Stay, EPA Expressly Stated That It Would Either Propose to Delete Hydrogen Sulfide from the EPCRA Section 313 List or Reaffirm Its Original Listing Decision

At the time EPA adopted the present administrative stay for H 2 S and methyl mercaptan, EPA explicitly stated that it would issue “a forthcoming Federal Register notice” in which it

would “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.” 14 EPA has never issued any notice until now that could be construed as seeking further comment on its li sting

determination for H 2 S. The original notice announcing the administrative stay clearly stated:

After evaluating the information and public comments the Agency will either propose to delete one or both of the chemicals or will reaffirm its original fi ndings and dissolve this Administrative

Stay. 15

Elsewhere in the notice, EPA elaborated as follows:

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 lis t of toxic chemicals. 16

By the way it has characterized its current proposal to lift the long

- pending stay, EPA has contravened what it expressly represented to the regulated community and the interested public

in 1994.

12 75 Fed. Reg. at 8889.29 13 4 2 U.S.C. § 11023(d)(2).

14 59 Fed. Reg. at 43048

15 Id.

16 Id.

EPA Response:

Commenters first argue that EPA cannot now limit comment to whether or not to lift the stay because the Agency stated, when it issued the administrative stay in 1994, that it intended, at some point in the future, to “seek comment on the Agency’s initial determination for [hydrogen sulfide].” 59 FR at 43049. Specifically, the administrative stay stated:

[T]he Agency will be issuing a forthcoming Federal Register notice which will seek comment on the Agency’s initial determination for [hydrogen sulfide], ... procedural issues concerning the initial final rule, and generally, comments (and any supporting data) on whether the Agency should either propose to delete [hydrogen sulfid e] or affirm its initial determination and dissolve today’s Administrative Stay.

Id

.

Hydrogen sulfide was listed under section 313 of EPCRA by final rule on December 1, 1993. The stay did not remove hydrogen sulfide from the EPCRA section 313 list or alter that final listing determination, which was never administratively or judicially challenged. The 1993 listing decision was appropriate base on the acute aquatic toxicity finding alone under EPCRA section 313(d)(2)(C), which was included in both the proposed and final rules and never questioned

. Therefore, EPA does not believe it is necessary or appropriate to revisit the 1993 final listing of hydrogen sulfide in order to lift the stay of reporting requirements.

Further, the Agency believes that its action in taking comment on its intent to lift the stay is substantially in accord with the course of action it described in issuing the stay in 1994. In the Intent to Lift the Stay notice, the Agency discussed and invited comment on the data underlyi ng its consideration of the matter and EPA’s application of its policy regarding exposure assessment to the listing decision . As described in the Intent to Lift the Stay notice, EPA’s planned course

of action arises out of EPA’s review of the currently av ailable data, which clearly demonstrate both chronic health effects in humans (upper respiratory tract toxicity and neurotoxicity) and significant adverse effects in aquatic organisms (acute, chronic, and early life stage). Further,

EPA’s consideration of these effects is fully consistent with its policy on exposure assessment. Based on these findings, EPA believes that there is no basis for continuing the administrative stay of the reporting requirements for hydrogen sulfide, and that the administrative stay should

therefore be lifted.

Moreover, these findings also demonstrate that there is no basis to consider delisting hydrogen sulfide. EPCRA section 313(d)(3) states that to remove a chemical from the list, EPA

must determine that “there is not suff icient evidence to establish any ” of the Section 313(d)(2)30 criteria (emphasis added) . Therefore, to remove a chemical, EPA must demonstrate that none of the criteria are met. As EPA’s review of the currently available data in the context of its

considerat ion of lifting the A dministrative S tay demonstrate s , EPA cannot show that none of the

criteria are met. Indeed, the Agency believes that the only course available is to dissolve the stay, which it is doing through notice

- and

- comment, and which is substant ially in accord with at least one of the alternative courses anticipated in 1994.

Finally, to the extent that the commenters are suggesting that EPA is legally prohibited from now limiting comment to the issue of whether or not to lift the Administrative Stay based on the statements in the preamble the Agency made (excerpted above) when issuing the Administrative Stay, EPA respectfully notes that these preamble statements do not create such a legal obligation. See, e.g., Natural Resources Defence Council v. EPA , 559 F.3d 561, 564

– 65 (D.C. Cir. 2009)

.

Comment:

B. In the Administrative Stay, EPA Acknowledged Significant Discrepancies between the Rationale When EPA First Proposed to List H2S and the Rationale Provided for the Actual Listing of H 2 S

When i t first proposed to add H 2 S to the EPCRA Section 313 list, EPA based its proposal
on a number of respiratory effects that it characterized as “chronic effects” 17 of the sort that
would warrant a listing decision under EPCRA Section 313(d)(2)(B). 18 EPCRA Se ction 313(d)(2)(B) provides that EPA may add a chemical to the original statutory list if there is

sufficient evidence to establish that:

(B) The chemical is known to cause or can reasonably be anticipated to cause in

humans

-- (i) cancer or teratogen ic effects, or (ii) serious or irreversible

-- (I) reproductive dysfunctions, (II) neurological disorders, (III) heritable genetic mutations, or

(IV) other chronic health effects. 19

In the final rule listing H 2 S, EPA agreed with comme nters that the respiratory effects it
had cited in the proposed rule were “likely due to irritation of [an] acute nature.” 20 Although EPA acknowledges that the first listing criterion for acute effects in EPCRA Section
313(d)(2)(A) 21 requires consideratio n of actual exposure, EPA did not conduct any exposure analysis for H 2 S for this final rule. Rather, EPA based its final decision listing H 2 S on neurotoxic effects that had been observed in occupational settings following chronic exposure to
high levels o f H 2 S

. 22 Thus, the public was deprived of any meaningful opportunity to comment on EPA’s revised rationale for listing H 2 S.31 In its decision to adopt an administrative stay of reporting requirements for H 2 S, EPA acknowledged this discrepancy. EPA stated that “the Agency cited chronic neurotoxic effects in
the final rule and chronic respiratory effects in the NPRM.” 23 Although EPA did not expressly admit the obvious procedural deficiency that infected its original listing decision for H 2 S, it did

state:

[T]he 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. 24

EPA also alluded to statements by two affected trade associations that “unless administrative action is taken to resolve the issues outlined in today’s document, a prompt legal challenge will
be brought.” 25 Under any reasonable interpretation of all of these statements when EPA adopte d the administrative stay, EPA cannot now lift the stay without affirming its previous listing

decision for H 2 S and EPA cannot affirm the listing without providing full notice and comment concerning its current rationale for a determination that the listin g criteria have been satisfied.

17 EPA, Chemicals; Toxic Chemical Release Reporting; Community Right

- to

- Know; Proposed Significant New Use Rule, Proposed Rule, 57 Fed. Reg. 41020, 41027

- 28 (Sept. 8, 1992).

18 42 U.S.C. § 11023(d)(2)(B).

19 Id.

2 0 58 Fed. Reg. at 63509.

21 42 U.S.C. § 11023(d)(2)(A).

22 58 Fed. Reg. at 63509.

23 59 Fed. Reg. at 43049.

24 Id. at 43050.

25 Id.

EPA Response:

Second, Commenters argue that EPA cannot now limit comment to whether or not to lift the stay because E PA cited chronic respiratory effects as one of the bases for listing under EPCRA section 313(d)(2)(B) in the p roposed r ule, but chronic neurotoxic effects as a basis under that same provision in the f inal r ule.

EPCRA section 313(d) authorizes EPA to add or delete chemicals from the list and sets forth criteria for these actions. The EPCRA section 313(d)(2) criteria are:

(A) The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concent ration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases. (B) The chemical is known to cause or can reasonably be anticipated to

cause in humans

- (i) Cancer or teratog enic effects, or32 (ii) Serious or irreversible

- (I) Reproductive dysfunctions, (II) Neurological disorders, (III) Heritable genetic mutations, or (IV) Other chronic health effects. (C) The chemical is known to cause or can be reasonably antic ipated to cause, because of (i) Its toxicity, (ii) Its toxicity and persistence in the environment, or (iii) Its toxicity and tendency to bioaccumulate in the environment, a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Administrator, to warrant reporting under this section.

EPA often refers to the section 313(d)(2)(A) criterion as the “acute human health effects criterion;” the section 313(d)(2)(B) criterion as the “chronic human health effects crit erion;” and the section 313(d)(2)(C) criterion as the “environmental effects criterion.”

While it is true that the Agency cited chronic respiratory effects as a “chronic human health effects” basis under EPCRA section 313(d)(2)(B) in the proposed rule, b ut chronic neurotoxic effects as a “chronic human health effects” basis under that same provision in the final rule, it bears emphasizing once again that the Agency also separately cited the same acute aquatic toxicity as an “environmental effects” basis f or the listing under EPCRA section 313(d)(2)(C) in both the proposed and final rules. As a result, and in light of the fact that EPCRA section 313(d)(2) expressly allows EPA to add a chemical to the list if “there is sufficient evidence to establish any o ne ” of the listing criteria (emphasis added), the 1993 listing

decision was appropriate based on the acute aquatic toxicity finding alone under EPCRA section 313(d)(2)(C). That basis for the listing was never questioned and was and continues to be
support ed by the data relied upon by EPA in determining that the stay should be lifted . Any procedural error that may have occurred regarding the section 313(d)(2)(B) “chronic human health effects” finding was harmless in light of the unchallenged section 313(d) (2)(C) “environmental effects” finding presented in both the proposed and final rules. This analysis also played directly into EPA’s decision to proceed in the manner it has, as opposed to rigidly following its stated intentions in 1994.

EPA is currentl y lifting the stay of hydrogen sulfide reporting requirements

– a substance that has been and remains listed under EPCRA since promulgation of the f inal r ule on December 1, 1993

– based on EPA’s review of the currently available data, which clearly demonst rate both chronic health effects in humans (upper respiratory tract toxicity and neurotoxicity) and significant adverse effects in aquatic organisms (acute, chronic, and early life stage). EPA is not revisiting the original listing determination, and comm ents on the original listing decision are beyond the scope of this action.

Comment:

C. In the Administrative Stay, EPA Stated That It Would Clarify Its Position33 Concerning Use of Exposure Analysis in EPCRA Section 313 Listings, and EPA Subsequently Adopted a New Policy Concerning This Issue

In its decision to adopt an administrative stay of reporting requirements for H 2 S, EPA also referred to comments by regulated parties that EPA did not correctly utilize exposure analysis when it applied the statu tory listing criteria to H 2 S. Although EPA disputed comments that the use of exposure analysis for H 2 S “was inconsistent with past Agency practice,” EPA acknowledged that it would be helpful to clarify this question. EPA stated:

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. 26

EPA then promised to include a “more complete discussion” of the EPA policy on use of exposure analysis in applying the listing criteria in EPCRA Section 313(d)(2) in a forthcoming Federal Register notice concerning H 2 S and methyl mercaptan.

EPA subsequently provided a statement of its policy concerning use of exposure analysis. This occurred, however, as part of another unrelated rulemaking adding chemicals to the EPCRA

Section list of toxic chemicals. 2 7 Until the issuance of the current notice, EPA never applied this policy statement in determining whether H 2 S satisfies any of the statutory listing criteria. Thus, EPA cannot now deprive interested parties of an opportunity for notice and comment on the manner in which its policy on exposure analysis has been applied in making a new listing

determination for H 2 S. 28 Further, because EPA is applying its subsequently adopted policy concerning exposure analysis to H 2 S for the first time, EPA cannot properly apply that policy
without affording a full opportunity for notice and comment rulemaking. 29

26 Id.

27 EPA, Addition of Certain Chemicals; Toxic Chemical Release Reporting; Community Right

- to

- Know, Final Rule, 59 Fed. Reg. 61432, 61433, 61440

- 42 (No v. 30, 1994).

28 See 5 U.S.C. §§ 553(b), 553(c); see also McLouth Steel Prods. Corp. v. Thomas

, 838 F.2d 1317, 1323 (D.C. Cir. 1988).

29 See McLouth supra , 838 F.2d at 1323; see also Community Nutrition Inst. v. Young , 818 F.2d 943, 948

- 49 (D.C. Cir. 1987).

EPA Response:

Third, Commenters argue that EPA cannot now limit comment to whether or not to lift the stay because EPA adopted its current policy regarding exposure analysis subsequent to the 1993 listing of hydrogen sulfide.3 4 EPA did not “adop t[] a new policy” on its use of exposure analysis for listing chemicals under EPCRA section 313 subsequent to the listing of hydrogen sulfide in 1993. Instead, t he Agency’s then

- existing position on the use of exposure analyses in listing decisions under EPCRA section 313 was presented in a proposed rule in the Federal Register of January 12, 1994 ( 59 FR 1788 ). That proposed rule provided the public with the opportunity to comment on the Agency’s then

- existing interpretation of the statutory listing crite ria as it relates to the use of exposure considerations. After considering the comments received, EPA published in the Federal Register of November 30, 1994 ( 59 FR 61432 ) a “chemical expansion” final rule, including a statement clarifying its interpretati on of the statutory requirements regarding how exposure is considered in listing decisions. Subsequent to that final rule, EPA’s interpretation of the statutory listing criteria as it relates to the consideration of exposure was upheld in National

Oilseed Processors Ass’n. v. Browner , 924 F. Supp. 1193 (D.D.C. 1996), aff’d in part & remanded in part, Troy Corp. v. Browner , 120 F.3d 277 (D.C. Cir. 1997).

As stated in the chemical expansion final rule:

Through this rulemaking, EPA is clarifying its posit ion regarding the use of hazard, exposure, and risk in listing decisions under EPCRA section 313. EPA will consider exposure factors when making determinations under section 313(d)(2)(A) (acute human toxicity). In addition, EPA has discretion to consider exposure factors where appropriate for determinations under sections 313(d)(2)(B) (chronic human toxicity) and (C) (environmental toxicity), and that there is a broader range of circumstances in which exposure will be considered under section 313(d)(2)(C) than under (B). EPA has reviewed its past listing decisions in light of this clarification, and believes that its prior listing determinations have been consistent in the consideration of exposure in 31 of the 32 listing/delisting determinations previous

to this action

....

59 FR 61442 (Nov. 30, 1994) (emphasis added). In Troy Corp. v. Browner , the D.C. Circuit agreed with EPA, finding:

Were the EPA to abandon a long

- held exposure policy and take a new direction we would, as urged, require a thorough expl anation of its reasons for doing so.
Yet, the EPA’s pronouncement in its preamble of its exposure policy is not a change in course . With one exception, the EPA has consistently stated, as it does in this rulemaking, that it will consider exposure under su bsection (B) only when the chemical was of “low to moderately low” toxicity. ... [T]he agency has long maintained that it would consider exposure under subheading (B) only for low toxicity chemicals. The inorganic fluorides petition was denied over ten yea rs ago. Since that time, the agency has made several dozen listing and delisting decisions under EPCRA. The inorganic fluorides case was the only instance in which the agency articulated a policy contrary to the one explicated in this rulemaking. Under these circumstances we cannot say that the agency has departed from prior practice in a way that requires more explanation than was provided.35 Troy Corp. v. Browner , 120 F.3d at 287 (emphasis added) (citation omitted).

Thus, EPA did not subsequently adop t a new exposure policy as Commenters suggest.

Rather

, the Agency simply clarified the existing exposure policy. Further, the 31 of 32 previous

cases , noted by the court in Troy Corp

., in which the Agency had been consistent with this exposure policy inc luded the listing of hydrogen sulfide. Therefore, EPA had applied this same exposure policy to the listing of hydrogen sulfide, and need not, as Commenters suggest, provide a new notice and opportunity to comment on the use of exposure analyses in listing hydrogen

sulfide under section 313 of EPCRA.

As EPA explained in the Intent to Lift the Stay:

EPA has determined that hydrogen sulfide can reasonably be anticipated to cause serious or irreversible chronic human health effects at relatively low doses and thus is considered to have moderately high to high chronic toxicity. EPA does not believe that it is appropriate to consider exposure for chemicals that are moderately high to highly toxic based on a hazard assessment when determining if a chemical c an be listed for chronic effects pursuant to EPCRA section 313(d)(2)(B) (see 59 FR 61432, 61433, 61440

- 61442 ). Hydrogen sulfide has also been determined to cause ecotoxicity at relatively low concentrations, and thus is considered to have high ecotoxicity . EPA believes that chemicals that induce death or serious adverse effects in aquatic organisms at relatively low concentrations (i.e., they have high ecotoxicity) have the potential to cause significant changes in the population of fish and other aquatic organisms, and can therefore reasonably be anticipated to cause a significant adverse effect on the environment of sufficient seriousness to warrant reporting. EPA does not believe that it is required to consider exposure for chemicals that have high eco toxicity based on a hazard assessment when determining if a chemical can be listed for effects pursuant to EPCRA section 313(d)(2)(C) (see 59 FR 61432, 61433, 61440

- 61442 ).

75 FR 8889, 8893 (Feb. 26, 2010).

Comment:

D. EPA Must Make a New Determina tion Applying the Statutory Listing

Criteria Based on Current Scientific Information and Reaffirm the Current Listing Before It May Lawfully Lift the Administrative Stay of Reporting Requirements

EPA conducted a rulemaking to adopt the original listing d ecision for H 2 S. EPA later acknowledged that it had not provided for proper comment on the actual substantive predicate for its listing determination in that rulemaking and clearly stated it would do so. EPA also stated that it would clarify its policy o n use of exposure analysis for listing decisions under the criteria in EPCRA Section 313(d)(2) before taking final action, and EPA subsequently adopted a new policy on the use of such analyses.36 Given these factors, it is unreasonable and unlawful for EPA to decline now to revisit the original listing. Simply because EPA used an adjudicatory order to suspend enforcement of reporting requirements, pending review of its original listing decision does not change its obligation to provide full notice and comm ent on the basis for a new listing determination before it may lift that order. EPA must make a new listing determination applying the statutory listing criteria and utilizing current scientific data, and then take comment on whether one or more of the ap plicable criteria have been satisfied. Only after completing these steps may EPA proceed

either to delete H 2 S from the list or to reaffirm its original listing determination and to lift the administrative stay.

While an agency may make changes in a pr oposed rule on the basis of public comments received on the proposal, at least where the changes are a “logical outgrowth” of the proposal
and the comments, a like justification does not apply here. 30 The 1994 H 2 S listing decision rested on such shaky gro unds that, as noted, EPA immediately stayed the effect of the listing. EPA’s inability to respond satisfactorily to comments raised nearly two decades ago lies at the core of the problem, and it cannot properly decline to revisit the listing decision or to provide an opportunity for public comment. This is all the more necessary in that lifting the stay would
reverse completely the status quo from the regulatory standpoint. 31

The Consortium recognizes that, notwithstanding EPA’s stated intent not to r evisit the 1993 final rule listing H 2 S, EPA has provided an explanation of why it believes that two of the statutory listing criteria are satisfied, which is based on some of the currently available scientific data. EPA has also purported to apply its curr ent policy concerning use of exposure analyses in listing determinations. Nevertheless, as we will show below, the explanation given by EPA is insufficient to support a listing decision because EPA has not considered all of the best available

scientific d ata, and because EPA has applied its stated policy on use of exposure analyses in an arbitrary manner.

30 See Sprint Corp. v. FCC , 315 F.3d 369, 374

- 75 (D.C. Cir. 2003), distinguishing the

situations in City of Stoughton v. EPA , 858 F.2d 747, 751 (D.C. Cir. 1988) and American Mining Congress v. EPA , 907 F.2d 1179, 1182 (D.C. Cir. 1990). Significantly, too, in American Mining Congress , while the reviewing court upheld EPA’s reinstatement of a withdrawn listing rule for certain hazardous wastes, on th e ground that EPA had provided two opportunities for comment on the original rule, the court also rejected the

reinstatement as to other wastes in the absence of rational connection between the data and those listing decisions).

31 See Sprint Corp. v. FCC, supra , 315 F.3d at 374 (opportunity for comment necessary when an agency “changes the rules of the game”).37 EPA Response:

Finally, Commenters argue that EPA cannot now limit comment to whether or not to lift the stay because EPA “must make a n ew listing determination before it may lift [the stay].”

This argument merely restates Commenters’ first three arguments in support of Commenters’ ultimate position that EPA must revisit the 1993 listing decision. For the reasons already discussed above , the Agency disagrees with Commenters’ arguments.

Comment:

II. EPA MAY NOT IMPLEMENT ITS POLICY CONCERNING USE OF EXPOSURE

ANALYSIS IN MAKING LISTING DECISIONS UNDER EPCRA SECTION 313 IN

AN ARBITRARY MANNER

Comment: A. EPA Has Not Identified the Spec ific Criteria It Utilizes in Determining Whether a Substance Causes Chronic Human Health Effects at Relatively Low Doses or Ecotoxicity at Relatively Low

Concentrations

In its proposal to lift the administrative stay for H 2 S, EPA states that it is ap plying the interpretation of the statutory listing criteria and the policy concerning use of exposure analyses
adopted by EPA in its November 30, 1994, final rule listing other substances. 32 In that rule, EPA

stated:

The Agency believes that exposure con siderations are appropriate in making determinations (1) under section 313(d)(2)(A), (2) under section 313(d)(2)(B) for chemicals that exhibit low to moderately low toxicity based on a hazard assessment (i.e., those chemicals for which the value of listing on the EPCRA section 313 list on hazard alone is marginal), and (3) under section 313(d)(2)(C) for chemicals that are low or moderately

ecotoxic. 33

EPA also notes that the interpretation of the statutory listing criteria that underlies this 1994
policy s tatement was sustained during subsequent judicial review. 34

Although EPA asserts in its proposal to lift the stay that it has applied the 1994 policy on use of exposure analyses to H 2 S, 35 the Consortium has been unable to identify or locate in the

docket f or this matter any objective criteria that EPA uses in making a determination of whether a particular candidate substance that may cause “serious or irreversible chronic health effects” has “low to moderately low toxicity.” Similarly, the Consortium has n ot been able to find any explanation of the criteria that EPA uses in deciding whether a particular candidate substance has “low to moderately low ecotoxicity.”

Even if it is assumed that EPA has the discretion to select a policy concerning the

circumstan ces in which it will use an exposure analysis as part of a listing decision under EPCRA Section 313(d)(2), that does not mean that EPA has unfettered discretion to apply that38 policy in an arbitrary manner. 36 If EPA is to have a rational policy that can be applied in a fair and equitable manner, the scientists conducting a hazard assessment for a candidate substance under EPCRA Section 313(d)(2) should not be permitted to make qualitative judgments concerning potential toxicity in the absence of any objecti ve criteria or guidance concerning

what these terms mean. 37

32 See 59 Fed. Reg. at 61440

- 42.

33 59 Fed. Reg. at 61441.

34 See Troy Corp. v. Browner , 120 F.3d 277, 285

- 87 (D.C. Cir. 1997), reh’g denied on other grounds , 129 F.3d 1290 (D.C. Cir. 1997)

.

35 75 Fed. Reg. at 8893.

36 Because the stay has been in place for the life of the H 2 S listing, the change effected by lifting the stay and thus reinstating the listing calls for a greater, and not a lesser, level of scientific support; agency actio n is subject to heightened scrutiny when it reflects a change in a long

- standing policy. See Michigan Public Power Agency v. FERC, 405 F.3d 8, 12 (D.C. Cir. 2005).

37 It is axiomatic that an agency must provide a reasoned basis for its actions, Motor V ehicle Mfrs. Ass’n v. State Farm Mutual Ins. Co. , 463 U.S. 29, 43 (1983), and also that it must examine the relevant data and articulate a satisfactory basis for its action, including a “rational connection between the facts found and the choice made,” Cit izens to Preserve Overton Park, Inc. v. Volpe

, 401 U.S. 402, 416 (1971); Northwest Coalition for Alternatives to Pesticides v. EPA , 544 F.3d 1043, 1052 (9th Cir. 2008).

EPA Response: Commenters state that even if EPA has discretion to select a policy co ncerning the circumstances in which exposure analysis will be part of the EPCRA section 313(d)(2) listing decision, it does not mean the EPA has unfettered discretion to apply that policy in an arbitrary

manner. Commenters state that if EPA is to have a r ational policy that can be applied in a fair and equitable manner, the scientists conducting a hazard assessment under EPCRA section 313(d)(2) should not be permitted to make qualitative judgments concerning potential toxicity in the absence of objective c riteria or guidance concerning what these terms mean. However, as discussed below, this is precisely the question at issue in National Oilseed Processors Ass’n. v. Browner, 924 F. Supp. 1193 (D.D.C. 1996), aff’d in part & remanded in part, Troy Corp. v. B rowner, 120 F.3d 277 (D.C. Cir. 1997), where those Courts held that EPA’s exposure analysis policy, including the determination of when a toxic chemical has “moderately high to high toxicity” based on adverse effects at “low” or “moderate” dose levels and thus does not require an exposure analysis in order to be listed, was not arbitrary or capricious.

EPA has identified the criteria that it uses in making a determination of whether a substance that may cause “serious or irreversible chronic health effect s” has “low to moderately low toxicity,” and has not applied its policy on the use of exposure analysis in EPCRA section 313 listing determinations in an arbitrary mann er. To the contrary, in the preamble to the 199439 chemical expansion final rule, EPA exp lained that two types of chemicals are considered to exhibit moderately high to high toxicity:

● Where a review of the scientific data provides a high level of confidence that the chemical causes an adverse effect at relatively low dose levels, and

● Whe re a review of the scientific data indicates that the chemical will cause various

adverse effects at moderate dose levels.

[ 59 F R 61432, 61433 (Nov. 30, 1994) ]

.

Thus, EPA has in fact articulated criteria for its determination whether or not exposure

co nsiderations will be taken into account in its chemical listing decisions.

More specifically, EPA has provided guidance concerning how it evaluates chemicals to determine whether they meet the EPCRA section 313 listing criteria, including information on the factors EPA considers in determining whether a chemical is sufficiently toxic that exposure need not be considered in the listing decision. The specific criteria EPA uses to determine whether a chemical has moderately high or high toxicity, and thus d oes not have low to moderately low toxicity

, were explained in detail in the 1994 chemical expansion rule:

3. Hazard evaluation. After completing the screening phase, EPA conducted a thorough

hazard assessment for each of the addition candidates that resu lted from the above analyses and determined based on the weight

- of

- the evidence if there was sufficient

evidence to establish that the candidate chemical met the statutory criteria for addition to

EPCRA section 313. To make this determination, EPA senior s cientists reviewed readily available toxicity information on each chemical for each of the following effect areas:

acute human health effects; cancer; other chronic human effects; and environmental

effects. In addition, EPA reviewed, where appropriate, in formation on the environmental

fate of the chemical.

The hazard assessment was conducted in accordance with relevant EPA guidelines for each adverse human health or environmental effect (e.g., the appropriate guidelines for hazard evaluation of chemical carcinogens and for the type of evidence required to substantiate a determination of carcinogenicity are the Assessment Guidelines for Carcinogen Risk (Ref. 4)). During this assessment the number, severity, and significance of the effects induced by the c hemical, the dose level causing the effect, and the quality and quantity of the available data, including the nature of the data (e.g., human epidemiological, laboratory animal, field or workplace studies) and confidence level in the existing data base, we re all considered. Where a careful review of the

scientific data for a particular chemical results in a high level of confidence that the

chemical causes an adverse effect at relatively low dose levels, EPA believes that this

evidence is sufficient for lis ting the chemical under section 313. EPA also believes that

where a review of the scientific data indicates that the chemical will cause various adverse effects at moderate dose levels, the total weight

- of

- the

- evidence indicates that

there is sufficient ev idence for listing the chemical under EPCRA section 313. EPA40 believes that both types of chemicals described above exhibit moderately high to high toxicity based on a hazard assessment.

EPA also conducted an analysis of exposure for each chemical or chemical category proposed for listing under EPCRA section 313(d)(2)(A) (i.e., based on adverse acute human health effects), and, where appropriate, under section 313(d)(2)(C) (i.e., based on adverse ecological effects). For chemicals listed under EPCRA se ction 313(d)(2)(A), this analysis included estimated concentrations of the chemical at or beyond the facility site boundary through the use of estimated releases and modelling techniques. EPA did not conduct an analysis of exposure for the chemicals propos ed for listing under section 313(d)(2)(B) because these chemicals exhibit moderately high to high toxicity based on a hazard assessment (see Unit IV.B. for a discussion of the use of exposure). As discussed more thoroughly in Unit IV.B. of this preamble, E PA does not believe that it is appropriate to factor exposure into the listing decisions for the chemicals being listed pursuant to section 313(d)(2)(B) in this rulemaking.

Following a review and analysis of the information available about each chemic al in this final rule (including information provided through public comment) by senior Agency scientists, the Agency concludes that for each of the chemicals listed one or more of the EPCRA section 313 listing criteria are met. Moreover, the adverse effe cts associated with each of the chemicals being listed today are serious and significant. In some cases the effects are extreme, such as cancer or death. In others, the effects are serious and lasting, including, for example, impairment of a fetus' or an o ffspring's physical development, neurological effects inhibiting motor abilities or mental processes or impairing the ability to reproduce, or the sustainability of a fragile ecosystem such as an estuary. For a number of chemicals in the fin al rule, there is more than one adverse

effect.

It is important to understand that although an adverse effect is known or can be reasonably anticipated to be caused by a chemical on the section 313 list, a release of a chemical into a community does not necessarily mean that the effect will occur. Exposure and dose are also important factors in determining whether an adverse effect

occurs and how serious the manifestation will be. The listing of a chemical on the section 313 list does not mean that a particular co mmunity will experience these adverse effects. Instead the purpose for listing a chemical is to ensure that the public gets

information about releases of such chemicals. Thus, EPA believes that for chemicals that typically do not affect solely one or two species but rather affect changes across a whole ecosystem and for which there is well

- documented evidence supporting the adverse effects, that their addition to the EPCRA section 313 list is warranted even though the severity of the adverse effects that t hey induce will be dependent upon site

- specific

characteristics. Once EPA makes release data available through TRI, the community may then make its own determination on the importance of these releases (and their potential adverse effects).

[59 FR at 61 433, 11/30/1994 (emphasis added)]41 EPA went on to state in the chemical expansion rule that:

Through this rulemaking, EPA is clarifying its position regarding the use of hazard, exposure, and risk in listing decisions under EPCRA section 313. EPA will c onsider exposure factors when making determinations under section 313(d)(2)(A) (acute human toxicity). In addition, EPA has discretion to consider exposure factors where appropriate

for determinations under sections 313(d)(2)(B) (chronic human toxicity) a nd (C) (environmental toxicity), and that there is a broader range of circumstances in which exposure will be considered under section 313(d)(2)(C) than under (B).

EPA has reviewed its past listing decisions in light of this clarification, and believ es that its prior listing determinations have been consistent in the consideration of exposure in 31 of the 32 listing/delisting determinations previous to this action, including a number of deletions of low toxicity chemicals that Congress placed on the i nitial EPCRA section

313 list. EPA is currently reviewing the one exception, inorganic fluorides, to determine

if additional action is warranted. EPA will continue to evaluate petitions according to

this clarification and will delete chemicals that do no t meet the statutory criteria.

[ 59 FR at 61442 , 11/30/1994]

EPA’s exposure analysis policy, as set forth in the chemical expansion Final Rule, was judicially challenged in National Oilseed Producers Ass’n v. Browner , 924 F. Supp. 1193 (D.D.C. 1996). T here, the plaintiffs presented precisely the same argument that the Hydrogen

Sulfide Consortium now raises. In National Oilseed , the court stated that “Plaintiffs ... claim that EPA has not adequately explained when it will consider exposure under Section

3 13(d)(2)(B).” National Oilseed , 924 F. Supp. at 1203. The court squarely rejected that argument, holding:

The Agency argues generally that, in the exercise of its discretion, it has elected to consider exposure only in limited circumstances. Specifical ly, when EPA’s hazard assessment shows that a chemical exhibits only low or moderately low toxicity, EPA will consider the potential for exposure in making a listing decision. Conversely, where EPA’s hazard assessment reveals that a chemical’s toxicity is high or moderately high, EPA does not consider exposure, and will list the chemical based solely on its toxic effect.

... Moreover, EPA asserts that it explained adequately on the record that it chose to not consider exposure in this rulemaking because all of the chemicals proposed for listing under Section 313(d)(2)(B) were of “high to moderately

high” toxicity and therefore consideration of exposure was not appropriate. After consideration of the extensive arguments on both sides of this issue,

the Court c oncludes that the Agency did not act arbitrarily and capriciously in declining to consider exposure in the listing decisions for this rulemaking. ... While a more clearly and fully articulated policy would be preferable, the Court

cannot conclude that EPA was unreasonable in exercising its discretion by continuing to exclude consideration of exposure when chemicals are of high to42 moderately

- high toxicity.

... What is significant is that EPA stated what its policy for consideration of exposure would be, and th en described its application to the chemicals considered in this rulemaking. Because EPA’s decision to not consider exposure in this rulemaking was consistent with its policy of using exposure data only in particular circumstances,

i.e., where chemicals are of low toxicity, the Court concludes that the Agency was not arbitrary and capricious.

National Oilseed , 924 F. Supp. at 1203

- 04 (citations and footnotes omitted).

On appeal to the U.S. Court of Appeals for the D.C. Circuit, the plaintiffs again rais ed this same argument. There, the court stated: “...[Plaintiffs] argue that the EPA abused its discretion and acted arbitrarily and capriciously by failing to establish criteria for the consideration of exposure....” Troy Corp. v. Browner , 120 F.3d 277, 282 (D.C. Cir. 1997). On this point, the D.C. Circuit rejected the plaintiffs’ argument and affirmed the judgment of the

D.C. District Court in National Oilseed

. Troy Corp. , 120 F.3d at 293.

Just as EPA did in the 1994 chemical expansion rule and other pr evious listing decisions, upheld by the Courts in National Oilseed and Troy Corp.

– including application of the Agency’s exposure analysis policy in conducting such hazard assessments

– EPA conducted a hazard assessment of the human health and ecological effects of hydrogen sulfide, upon which the determinations that hydrogen sulfide has moderately high to high human toxicity were based

. Based on t he data from the hazard assessment, as presented in the Federal Register notice and supporting documents, EPA determined that hydrogen sulfide has moderately high to high

toxic ity to humans and is highly toxic to aquatic organisms. EPA discussed these determinations in detail in the notice of Intent to Lift the Stay in the Federal Register [75 FR 8889, 2/26/2010]

. Human health toxicity was discussed in detail beginning on page 8891, with references, and ecological effects were discussed in detail beginning on page 8893, with references

.

In the section of the Federal Register document that discussed the ration ale for lifting the

stay, EPA provided the following summary of the hazard data:

EPA’s technical evaluation of hydrogen sulfide shows that it can reasonably be anticipated to cause chronic health effects in humans. The chronic health effects have

been obs erved in laboratory animals at concentrations as low as 28 mg/m 3 (20 ppm) and 41.7 mg/m 3 (30 ppm). In addition, EPA’s technical evaluation of hydrogen sulfide also shows that it can reasonably be anticipated to cause, because of its toxicity, significant

a dverse effects in aquatic organisms. Examples of hydrogen sulfide’s ecological toxicity include acute toxicity (96

- hour LC 50 ) values for freshwater fish that ranged from 0.0149 mg/L (fathead minnow) to 0.0448 mg/L (bluegill), indicating high aquatic toxici ty. Examples of hydrogen sulfide’s chronic ecological toxicity include freshwater fish values that ranged from a 6

- week LOEC (growth rate) of 0.0005 mg/L in a tropical fish (Mystus nemurus) to a 430

- day LOEC (final weight) of 0.009 mg/L for goldfish, also indicating high aquatic toxicity.43 [75 FR 8893, 2/26/2010]

As the language above clearly shows, EPA did identify the information and the rationale for why hydrogen sulfide was determined to have moderately high to high human toxicity and high ecotoxicity

.

Comment:

B. Although EPA Asserts That It Has Determined H 2 S Can Cause Chronic Human Health Effects at Relatively Low Levels and Ecotoxicity at Relatively Low Concentrations, EPA Has Not Given Its Rationale for This

Determination

The problem wi th EPA’s purported determination that H 2 S meets two of the statutory listing criteria is not confined to the lack of any discernable objective criteria or guidance that EPA scientists are supposed to apply. EPA has not provided any rationale for the deter minations upon which it bases its conclusion that no exposure assessment is needed as it must.

EPA has provided a description of its hazard assessment for chronic human health
effects, including respiratory effects and neurotoxic effects, 38 which is based on the IRIS review

for H 2 S that EPA did in 2003. 39 EPA has also provided a description of its hazard assessment for
potential ecological toxicity of H 2 S. 40 EPA asserts that it has also made the requisite determinations concerning the relative magnitude of H 2 S toxicity for chronic human health effects and for ecological effects. EPA states:

EPA has determined that hydrogen sulfide can reasonably be anticipated to cause serious or irreversible chronic human health effects at relatively low doses and

thus is considered to have moderately high to high chronic toxicity.

...

Hydrogen sulfide has also been determined to cause ecotoxicity at relatively low concentrations, and thus is considered to have high ecotoxicity. 41

The problem with these statements by EPA is that they are wholly conclusory. The docket compiled by EPA does not appear to contain any explanation of the relation between the hazard assessments prepared by EPA scientists and these determinations. Not only has EPA given no objective criter ia against which these determinations can be tested, but it also has given no explanation of why EPA scientists believe that chronic human health effects may be caused by H 2 S “at relatively low doses” or that ecotoxicity may result from H 2 S at “relatively low concentrations.” As such, EPA has failed to meet the fundamental requirement that it must “support its decisions with the necessary scientific findings.” 42

These critical omissions from the record are of significant interest to the Consortium,

because its members believe that there is no real possibility that any of these effects will be caused by H 2 S releases of the sort that would be reportable under EPCRA Section 313. From the44 perspective of Consortium, the H 2 S levels that have been characterized by EPA as “relatively low” are actually very high.

For example, EPA summarizes the information on chronic health effects by stating:

These effects occur in a clear dose concentration manner with the lowest levels of hydrogen sulfide exposure associated wit h these effects ranging from 20 to 30 ppm (28 mg/m 3 to 41.7 mg/m 3 ). 43

These effect levels are 2,000 to 3,000 times greater than the odor detection threshold for H 2 S of 10 ppb. Although routine emissions from sources that would be subject to reporting

req uirements under the EPA proposal may result in ambient H 2 S concentrations that exceed the odor detection threshold, these concentrations will always be far below the lowest levels for chronic effects in animals cited in the hazard assessment by EPA.

The 1990 CAA Amendments included a provision requiring EPA to study H 2 S emissions associated with the extraction of oil and natural gas. 44 In the resultant report, EPA determined

that emissions from these activities resulted in measured levels that were cons istently in
compliance with the state standards. 45 Based on this analysis, EPA concluded that “there appears to be no evidence that a significant threat to public health or the environment exists from routine

H 2 S emissions from sour oil and gas extraction. ” 46 A subsequent study performed in 1999 by the Public Health Service (PHS) and EPA in one city near H 2 S sources found that peak H 2 S levels were generally below and only occasionally exceeded the upper detection limit of 90 ppb. 47

As part of a 2005 rulem aking to establish a new 83 ppb (24

- hour average) ambient

standard for H 2 S, the State of North Carolina conducted a survey of state standards and

concluded that 32 states have established ambient air standards for H 2 S. These standards have averaging times that range from instantaneous to annual. The highest one

- hour average and the highest 24

- hour average H 2 S levels permitted by any state standard are 200 ppb. 48 Thus, even the highest permitted H 2 S ambient concentrations are 100 to 150 times less than the lowest levels for chronic effects in animals cited in the hazard assessment by EPA. The highest permitted concentration is also 25 times less than the 5 ppm No Observed Effect Level (NOEL) for neurobehavioral and neurosensory effects established in a rece nt clinical study involving exposure of human volunteers conducted by Fiedler, et al

. 49 This 2008 study was not included in the information considered by EPA in the 2003 IRIS review, and is discussed in more detail

below.

EPA bases its evaluation that H 2 S is ecotoxic at “relatively low concentrations” exclusively on potential effects on aquatic life, noting that toxicity values for aquatic species
include “numerous values that are well below 1 milligram per liter (mg/L).” 50 While the levels cited by EPA may seem “relatively low” in the abstract, they are actually quite high when viewed in the context of data that clearly establish that H 2 S will be rapidly oxidized to less toxic

chemical forms when released to surface waters. 51 The EPA Water Quality Criter ia Gold Book

makes a similar observation:

The fact that H 2 S is oxidized in well

- aerated water by natural45 biological systems to sulfates or is biologically oxidized to elemental sulfur has caused investigators to minimize the toxic

effects of H 2 S on fish a nd other aquatic life. 52

EPA has not explained the basis for its conclusory statements that the H 2 S levels that may be associated with chronic health effects and ecotoxicity are “relatively low.” These unsupported determinations fail to satisfy either th e legal standard imposed under EPCRA or the general legal
requirements established by the Administrative Procedure Act (APA). 53

38 75 Fed. Reg. at 8892

- 93.

39 IRIS Assessment (June 2003).

40 75 Fed. Reg. at 8893.

41 Id.

42 National Gypsum Co. v. EPA , 968 F.2d 40, 41, 47 (D.C. Cir. 1992) (NPL listing remanded; EPA must provide “scientific findings” and “reasoned explanation”); see Tex Tin Corp. v. EPA , 935 F.2d 1321, 1324 (D.C. Cir. 1991) (NPL listing remanded; reviewing court “cannot defer to age ncy expertise that was never explained”).

43 75 Fed. Reg. at 8893.

44 CAA § 112(n)(5), 42 U.S.C. § 7412(n)(5).

45 EPA, Office of Air Quality Planning and Standards, Report to Congress on Hydrogen Sulfide Air Emissions Associated With the Extraction o f Oil and

Natural Gas , EPA

- 453/R

- 93

- 045 (Oct. 1993), at III

- 19 to III

- 31 (OAQPS Study).

46 OAQPS Study at V

- 1.

47 PHS, Agency for Toxic Substances and Disease Registry (ATSDR), Toxicological Profile for Hydrogen Sulfide (July 2006), at 125.

48 Nort h Carolina Division of Air Quality, State Survey of Ambient Air Standards,

available at http://daq.state.nc.us/toxics/studies/H2S/H2S_Survey.pdf.

49 Fiedler N., Kipen H., Ohman

- Strickland P., Zhang J., Weisel C., Laumbach R., Kelly

McNeil K., Olejeme K. , and Lioy P. (2008). Sensory and Cognitive Effects of Acute Exposure to Hydrogen Sulfide. Env. Health Persp . 116(1):78

- 85.

50 75 Fed. Reg. at 8893.

51 Millero, F.J., Hubinger, Fernandez and Garnett (1987). Oxidation of H 2 S in Seawater as a

Function o f Temperature, pH and Ionic Strength. Env. Sci. Tech. 21:439

- 443; Obrien, D.J. and Birkner, F.B. (1977). Kinetics of Oxygenation of Reduced Sulfur Species in Aqueous Solutions.

Env. Sci. Tech. 11:1114

- 1120.

52 EPA, Office of Water Regulations and Standa rds, Quality Criteria for Water , EPA 440/5

-46 86

- 001 (May 1, 1986) (EPA Gold Book), at 268.

53 See, e.g., United Mine Workers v. Dep’t of Labor , 358 F.3d 40, 45 (D.C. Cir. 2004) (federal agency cannot justify decision

- making by conclusory assertions); Port land Cement

Ass’n v. Ruckelshaus , 486 F.2d 375, 393 (D.C. Cir. 1973), cert. denied , 417 U.S. 921 (1974) (“not consonant with the purpose of a rule

- making proceeding to promulgate rules on the basis of inadequate data, or on data that, critical degree, is known only to the agency”).

EPA Response: As discussed in the previous response, EPA has provided guidance on how it determines whether a chemical has moderately high to high human toxicity and high ecotoxicity. In the notice of Intent to Lift the Stay

, EPA provided a detailed hazard assessment of both the human health effects and the ecological effects of hydrogen sulfide. This included both the effects caused by hydrogen sulfide and the doses/concentrations that caused those effects. This

informatio n was disc ussed in the Federal Register [75 FR 8889, 2/26/2010], and the details were contained in the hazard assessments and other references cited by EPA. Specifically, at 75 FR 8889, 8891

- 8893 (Feb. 26, 2010), EPA’s lengthy and detailed technical revie w of hydrogen sulfide (Part IV. of the Federal Register notice, entitled “What is EPA’s Technical Review of Hydrogen Sulfide?”), including references, can be found (and need not be reiterated here). EPA

then concluded, based on the hazard assessment:

EPA has determined that hydrogen sulfide can reasonably be anticipated to cause serious or irreversible chronic human health effects at relatively low doses and thus is considered to have moderately high to high chronic toxicity

.... Hydrogen sulfide has also b een determined to cause ecotoxicity at relatively low concentrations, and thus is considered to have high ecotoxicity. EPA believes that chemicals that induce death or serious adverse

effects in aquatic organisms at relatively low concentrations (i.e., th ey have high ecotoxicity) have the potential to cause significant changes in the population of fish and other aquatic organisms , and can therefore reasonably be anticipated to cause a significant adverse effect on the environment of sufficient seriousness to warrant reporting

.

[75 FR 8893, 2/26/2010]

In the section of the Federal Register document that discussed the rationale for lifting the
stay, EPA provided the following summary of the hazard data:

EPA’s technical evaluation of hydrogen sulfide show s that it can reasonably be anticipated to cause chronic health effects in humans. The chronic health effects have been observed in laboratory animals at concentrations as low as 28 mg/m 3 (20 ppm) and 41.7 mg/m 3 (30 ppm). In addition, EPA’s technical evalu ation of hydrogen sulfide also shows that it can reasonably be anticipated to cause, because of its toxicity, significant adverse effects in aquatic organisms. Examples of hydrogen sulfide’s ecological toxicity include acute toxicity (96

- hour LC 50 ) values for freshwater fish that ranged from 0.0149 mg/L (fathead minnow) to 0.0448 mg/L (bluegill), indicating high aquatic toxicity. Examples of hydrogen sulfide’s chronic ecological toxicity include freshwater fish values that ranged from a 6

- week LOEC (growth rate) of 0.0005 mg/L in a tropical fish (Mystus47 nemurus) to a 430

- day LOEC (final weight) of 0.009 mg/L for goldfish, also indicating high aquatic toxicity.

[75 FR 8893, 2/26/2010]

The above determinations are based on the human health effects and eco logical effects caused by hydrogen sulfide and the doses/concentrations that caused those effects. EPA clearly stated why the hazard assessment supports a finding of moderately high to high human toxicity and high ecotoxicity. Therefore, EPA has clearly stated how the hazard assessment data supports a conclusion that hydrogen sulfide has moderately high to high human toxicity and high ecological toxicity.

Regarding the information that the commenter provided on previous exposure assessments, air standar ds, etc., none of that information is relevant to a determination that hydrogen sulfide has moderately high to high human toxicity or high ecological toxicity. The toxicity of a chemical is separate from whether there are exposures from facility releases of that

chemical or not. In addition, the information provided by the commenter does not demonstrate that releases of hydrogen sulfide could not reach a level of concern from all the types of facilities that report under EPCRA section 313. EPA notes that the examples of t he very low air standards for hydrogen sulfide of 83

– 200 parts per billion support EPA’s determination that hydrogen sulfide is highly toxic.

The commenter’s statement that the cited toxic effects of hydrogen sulfide are 2,000 to 3,0 00 times greater than the odor detection threshold for H 2 S of 10 ppb is not a basis for discounting the toxic effects of hydrogen sulfide. As EPA has stated:

“ Recent reviews of the health hazards associated with H 2 S exposure and subsequent

treatment incl ude Milby and Baselt (1999a) and Guidotti (1996). Earlier reviews of the health effects were provided by Glass (1990), Reiffenstein et al. (1992), and Mehlman (1994). Exposure to H 2 S has been reported to be an important cause of morbidity and mortality in the workplace (Snyder et al., 1995) and olfactory dysfunction (Hirsch and Zavala, 1999). These reviews indicate that the typical “rotten

- egg odor” of H 2 S is an inadequate warning indicator of exposure since levels in the range of 100

- 200 ppm (140

- 280 mg/m3 ) can lead to loss of smell followed by olfactory paralysis (Reiffenstein et al., 1992). ”

[IRIS, 2003, page 10]

In addition, simply because someone can smell hydrogen sulfide does not mean they will automatically remove themselves from that exposure. Individuals that are frequently exposed to hydrogen sulfide may become less sensitive to the smell and, as indicated in the IRIS assessment, it is possible to have loss of smell from hydrogen sulfide exposure.

C ommenters further state that:

EPA bases i ts evaluation that H 2 S is ecotoxic at “relatively low concentrations”48 exclusively on potential effects on aquatic life, noting that toxicity values for aquatic species include “numerous values that are well below 1 milligram per liter (mg/L).”

While the l evels cited by EPA may seem “relatively low” in the abstract, they are actually quite high when viewed in the context of data that clearly establish that H 2 S will be rapidly oxidized to less toxic chemical forms when released to surface waters. The EPA

Wat er Quality Criteria Gold Book makes a similar observation:

The fact that H 2 S is oxidized in well

- aerated water by natural biological systems to sulfates or is biologically oxidized to elemental sulfur has caused investigators to minimize the toxic effects of H 2 S on fish and other aquatic life.

(Footnotes omitted)

T he quote from the water quality criteria document that “ [t] he fact that H 2 S is oxidized in

well

- aerated water by natural biological systems to sulfates or is biologically oxidized to

elemental s ulfur has caused investigators to minimize the toxic effects of H 2 S on fish and other aquatic life” is from the introductory paragraph of the water quality criteria for hydrogen sulfide.

This statement simply explains what has cause d some investigators in the past to minimize the toxic effects of hydrogen sulfide. However, in the rationale section, the document goes on to discuss the toxicity of hydrogen sulfide to aquatic life in detail and does not dismiss the potential impacts hydrogen sulfide may have on aquatic life. In fact, the document presents the rationale

for setting a water quality criterion of just 2 ug/L undissociated hydrogen sulfide for fish and other aquatic life in both fresh and marine wat er. Concerning oxidation, the EPA Gold Book

sta tes:

The degree of hazard exhibited by sulfide to aquatic animal life is dependent on the temperature, pH, and dissolved oxygen. At lower pH values a greater proportion is in the

form of the toxic undissociated H 2 S. In winter when the pH is neutral or be low or when dissolved oxygen levels are low but not lethal to fish, the hazard from sulfide is

exacerbated.

[ EPA Gold Book, May 1, 1986, page 268]

The criteria document also states that:

Many past data on the toxicity of hydrogen sulfide to fish and o ther aquatic life have been based on extremely short exposure periods. Consequently, these early data have indicated that concentrations between 0.3 and 0.4 mg/L permit fish to survive (Van Horn 1958, Boon and Follie 1967, Theede et al., 1969). Recent lo ng

- term data, both in field situations and under controlled laboratory conditions, demonstrate hydrogen sulfide toxicity at lower concentrations.

[ EPA Gold Book, May 1, 1986, page 268 ]

and concludes that:49 “Available data indicate that water containing c oncentrations of 2.0 ug/L undissociated

H 2 S would not be hazardous to most fish and other aquatic wildlife, but concentrations in

excess of 2.0 ug/L would constitute a long

- term hazard .”

[ EPA Gold Book, May 1, 1986, page 270 (emphasis added) ]

The conclu sion that a concentration of hydrogen sulfide in excess of just 2.0 ug/L would constitute a long

- term hazard to aquatic life supports a determination that hydrogen sulfide is clearly highly toxic and a potential hazard to aquatic life despite its fate unde r certain environmental conditions. If hydrogen sulfide were not highly toxic to fish and other aquatic life, then there would be no need for such a very low water quality criteria value.

Regarding the two references cited by the commenter concerning ox idation of hydrogen sulfide in seawater and aqueous solutions (i.e., Millero, F.J., Hubinger, Fernandez and Garnett (1987). Oxidation of H 2 S in Seawater as a Function of Temperature, pH and Ionic Strength. Env.

Sci. Tech. 21:439

- 443; Obrien, D.J. and Birkn er, F.B. (1977). Kinetics of Oxygenation of Reduced Sulfur Species in Aqueous Solutions. Env. Sci. Tech. 11:1114

- 1120.), the Millero reference was cited in EPA’s hazard assessment (page 8) and the Obrien reference was cited in the Millero reference (see U .S. Environmental Protection Agency, Technical Review of Hydrogen Sulfide: Chemistry, Environmental Fate and Ecological Toxicity, CAS Registry

Number 7783

– 06

– 4; Office of Environmental Information, Office of Information Access and Analysis, Environmental A nalysis Division, Analytical Support Branch; June 22, 2009). EPA is thus familiar with the issue of oxidation of hydrogen sulfide and discussed the topic in its hazard assessment on page 8 and again on page 17. However, the fact that hydrogen sulfide can be oxidized under certain environmental conditions does not mean that it is not highly toxic. As

was cited above

, the EPA Gold Book stated:

The degree of hazard exhibited by sulfide to aquatic animal life is dependent on the temperature, pH, and dissolv ed oxygen. At lower pH values a greater proportion is in the

form of the toxic undissociated H 2 S. In winter when the pH is neutral or below or when dissolved oxygen levels are low but not lethal to fish, the hazard from sulfide is

exacerbated.

[ EPA Gol d Book, May 1, 1986, page 268]

If hydrogen sulfide were rapidly oxidized to harmless chemicals under all environmental

conditions , then that would have an impact on EPA’s assessment

, but that is certainly not the case. How much damage a particular relea se of hydrogen sulfide will cause can depend on a number of factors including the amount of the release, whether the release is continuous or infrequent, the pH of the water, the temperature of the water, the type of water (fresh or seawater), the time of year, velocity of the body of water

, etc. These factors would be

considered in s ite specific exposure and risk assessments. While hydrogen sulfide may be

oxidized under certain environmental con ditions, there are many common environmental

conditions unde r which oxidation will not be significant and thus will not lessen the impact of a release of hydrogen sulfide. As the aquatic toxicity data shows, hydrogen sulfide is toxic to many different aquatic species and at several stages of life with some toxicit y values at or below50 one part in a billion. Thus

, it takes very little hydrogen sulfide to have an impact on aqua tic life.

Even under favorable oxidation conditions the experimental half

- life of hydrogen sulfide is 50

hours in fresh water and 26 hours in sea water. Considering how low the 48 and 96 hour LC 50 values are for hydrogen sulfide, hydrogen sulfide toxicity is still a concern even under favorable oxidation conditions. The potential oxidation of hydrogen sulfide does not lessen the inherent

toxi city of hydrogen sulfide.

EPA notes that, other than the single quote from the water quality criteria document and two references concerning oxidation of hydrogen sulfide in water, the commenters have not questioned or tried to refute in any way the aqu atic toxicity information provided in EPA’s hazard assessment. The summary table of the aquatic toxicity values presented in the hazard assessment provided over 90 toxicity values from more than a dozen sources. T he commenters did not provide any specifi c comments on why those data should not be considered sufficient to support EPA’s conclusions.

With regard to the commenter’s statements concerning criteria or guidance for determining whether a chemical has moderately high to high human toxicity or high ecological toxicity, it appear s that the commenters may have been looking for some type of numerical

cutoffs . The comments regarding criteria or guidance for determining whether a chemical has moderately high to high human toxicity or high ecological toxi city, have been addressed in EPA’s other responses to the commenters. With regard to possible numerical cutoffs , EPA does not agree that numerical cutoffs should be or need to be established in order to determine whether a chemical has moderately high to high human toxicity or high ecological toxicity. As EPA explained in the chemical expansion rule in 1994:

The hazard assessment was conducted in accordance with relevant EPA guidelines for each adverse human health or environmental effect (e.g., the appro priate guidelines for hazard evaluation of chemical carcinogens and for the type of evidence required to substantiate a determination of carcinogenicity are the Assessment Guidelines for Carcinogen Risk (Ref. 4)). During this assessment the number, severi ty, and significance of the effects induced by the chemical, the dose level causing the effect, and the quality and quantity of the available data, including the nature of the data (e.g., human epidemiological, laboratory animal, field or workplace studie s) and confidence level in the existing data base, were all considered. Where a careful review of the scientific data

for a particular chemical results in a high level of confidence that the chemical causes an adverse effect at relatively low dose levels, EPA believes that this evidence is sufficient for listing the chemical under section 313. EPA also believes that where a review of the

scientific data indicates that the chemical will cause various adverse effects at moderate dose levels, the total weigh t

- of

- the

- evidence indicates that there is sufficient evidence for listing the chemical under EPCRA section 313. EPA believes that both types of chemicals described above exhibit moderately high to high toxicity based on a hazard

assessment.

[59 FR 6143 3, 11/30/1994].

EPA provided a hazard assessment that presented the information used to support the finding that hydrogen sulfide has moderately high to high human toxicity and high ecotoxicity.51 As in the 1994 rulemaking, and subsequent rulemakings, the data presented in the hazard assessments addressed issues such as the number, severity, and significance of the effects induced by the chemical, the dose level causing the effect, and the quality and quantity of the available data, including the nature of the data (e.g., human epidemiological, laboratory animal, field or workplace studies) and confidence level in the existing data base. All c ommenters had the opportunity to comment on whether these data support EPA’s determinations regarding the toxicity of hydrogen sulfide in response to EPA’s notice of Intent to Lift the Stay of the reporting requirements for hydrogen sulfide . Establishing a numerical cutoff would limit EPA’s ability to consider other factors that might increase or decrease the concern for the toxicity of a chemical. For example, if one chemical causes one serious effect at 100 mg/kg/day and another chemical causes multiple serious effects across multiple organ systems but at 300 mg/kg/day it would not

make sense to discount the lat t er if there were some arbitrary numerical cutoff of 200 mg/kg/day

. EPA does not believe that would be the correct way to evaluate chemicals for listing. Rather

, EPA considers all of the toxicity data, including the doses/concentrations causing the toxic

eff ects

, in making determinations about the toxicity of a chemical. EPA provided this information in the hazard assessment for hydrogen sulfide and provided its rationale for lifting the stay based on this information.

While EPA has not set numerical cutof fs , a quick review of the chemicals included in the 1994 chemical expansion rule (59 FR 61432, 11/30/1994), the Persistent, Bioaccumulative, and Toxic (PBT) rule (64 FR 693, 1/5/1999), and other actions shows that the doses and

concentrations that cause ad verse effects for hydrogen sulfide are well within those of chemicals that EPA has previously determined to have moderately high to high human toxicity and high ecotoxicity. In fact, with regard to ecotoxicity, some of the levels at which hydrogen sulfide causes toxicity are among the lowest that EPA has evaluated. Even if EPA were to establish a numerical cutoffs , based on EPA’s previous listing determinations the levels at which hydrogen sulfide causes toxicity would be well below any such numerical cut offs

.

With regard to the phrase “relatively low doses,” this simply refers to doses that are low relative to the body burden they impose. Dose levels are most often measured as (or converted into) the units milligrams per kilogram per day (mg/kg/day) whe re kilogram refers to each kilogram of body weight. As noted above, EPA has explained that in determining whether a chemical has moderately high to high chronic toxicity the dose levels causing the effects along with the number and severity of the adverse effects are considered ( 59 FR 61433, 1/30/1994 ). While EPA has not set a numerical cutoff for a relatively low dose, it has provided numerous examples of the dose levels that EPA considers to be relatively low as well as dose levels that

EPA considers to be relatively high. The 1994 chemical expansion rule alone contains over 200 examples of relatively low doses (59 FR 1788, 1/12/1994). Doses in that rule that were considered relatively low were generally at or below 100 mg/kg/day. EPA has also identif ied, through numerous actions, dose levels that are considered to be high or relatively high. Such dose levels are typically at or above 500 mg/kg/day, with most examples being in excess of 1,000 mg/kg/day or more (see for example: 59 FR 49888, 9/30/1994; 60 FR 46076, 9/5/1995, and 64 FR 8769, 2/23/1999). Even in the rulemaking that added hydrogen sulfide to the TRI list, EPA identified doses of 600 and 1,000 mg/kg/day as “relatively high doses” (57 FR 41020, 9/8/1992). These “relatively high doses” were cited by EPA in the determinations that b

chloronapthalene and isobutyl alcohol were not sufficiently toxic to be added to the EPCRA52 section 313 list (57 FR 41033, 9/8/1992). These dose levels are significantly higher than the less

than 1 5 mg/kg/day dose s (converted from 20

- 30 ppm) that EPA has cited as being relatively low for hydrogen sulfide. While EPA has not set a numerical cutoff for relatively low doses, the Agency has provided, through the listing and delisting of chemicals, substantial guidanc e for this terminology.

As EPA has noted, low dose alone is not the only consideration in determining whether a chemical has moderately high to high toxicity and thus should be listed on hazard alone:

Where a careful review of the scientific data fo r a particular chemical results in a high level of confidence that the chemical causes an adverse effect at relatively low dose levels, EPA believes that this evidence is sufficient for listing the chemical under section

313. EPA also believes that whe re a review of the scientific data indicates that the chemical will cause various adverse effects at moderate dose levels, the total weight

- of

the

- evidence indicates that there is sufficient evidence for listing the chemical under

EPCRA section 313. EP A believes that both types of chemicals described above exhibit moderately high to high toxicity based on a hazard assessment. (59 FR 61433, 1/30/1994).

An example of this concept is the listing of triphenyltin chloride. This chemical was cited by

EPA as causing significant reproductive toxicity, including adverse effects on the testes, epididymis, sperm duct, prostate gland, seminal vesicle, Cowper's gland, and accessory glands, at an oral dose of 380 mg/kg over 19 days. While the dose level was more moderate, EPA determined that the severity and number of effects were sufficient for listing (59 FR 1843, 1/12/1994). This is the kind of flexibility regarding dose levels that is required when making determinations about the toxicity of chemicals, and is consistent with the exposure policy EPA

has established for EPCRA section 313 determinations.

Regarding the phrase “relatively low concentrations” used in the assessment of ecological toxicity, this is similar to the “relatively low dose” terminology in that it focuses on concentrations that result in low doses to the organisms. Data for aquatic organisms is the most commonly cited data and typically has the units of milligrams per liter (mg/L). As EPA has stated, exposure assessments are not used to l ist a chemical for ecological effects if it has high toxicity. Based on concentration, EPA has typically limited its consideration of highly toxic to those chemicals that cause acute effects at about 1 mg/L or less and chronic effects at 0.1 mg/L

or less (see for example: 57 FR 41020, 9/8/1992 and 59 FR 1788, 1/12/1994). Since the statutory criteria of EPCRA section 313(d)(2)(C) also includes consideration of persistence and bioaccumulation, EPA has considered somewhat higher concentrations as highly toxi c for chemicals with those characteristics (64 FR 696, 1/5/1999). As with chronic human health effects, EPA has not set a numerical cut off for relatively low concentrations, but has provided, through the listing and delisting of chemicals, substantial gu idance for this terminology.

EPA notes that other programs within the Agency that have numerical cutoffs for aquatic organisms have set numerical cutoffs that are consistent with the kind of toxicity concentrations that EPA has identified has being highl y toxic in EPCRA section 313 evaluations. For example, the Office of Pesticide Programs cites the following:53 Ecotoxicity Categories for Terrestrial and Aquatic Organisms

Aquatic Organisms: Acute
Concentration (ppm) Toxicity Category

<0.1 very highly to xic

0.1

– 1 highly toxic

>1

– 10 moderately toxic

>10

– 100 slightly toxic

>100 practically nontoxic (http://www.epa.gov/oppefed1/ecorisk_ders/toera_analysis_eco.htm#Ecotox).

Under the above numerical cutoffs , not only would hydrogen sulfide be consi dered highly toxic, but most of the available data would support a classification of very highly toxic.

Comment:

C. The Lack of Any Objective Rationale for EPA’s Determination That H 2 S Causes Health and Ecological Effects at Relatively Low Levels Sugges ts That EPA Has Made a Qualitative Judgment about the Magnitude of Potential Exposure without Preparing Any Supporting Exposure Analysis

EPA has not provided any objective criteria that may have been used when it made its

determinations that H 2 S can be a nticipated to cause chronic human health effects and ecological toxicity at “relatively low levels,” and also has not provided any details concerning the specific methodology utilized by EPA to make these determinations. In the absence of such information

, it is impossible to provide a more specific critique of the methodology that EPA used. EPA cannot properly make a new determination that H 2 S satisfies the statutory criteria for listing under EPCRA Section 313(d)(2) without disclosing this methodology an d providing a proper opportunity for comment. 54

One possibility is that EPA scientists have simply made a qualitative judgment concerning the plausibility that H 2 S exposure might occur at the levels in question. Such a judgment would be intrinsically ar bitrary when it is possible to do a proper and defensible exposure analysis. 55 If such an analysis were performed, the Consortium is confident that it would show that levels approaching the effect levels for chronic human health effects and ecological

toxi city identified by EPA will not be attained as a result of routine H 2 S emissions.

54 See American Farm Bureau Fed’n v. EPA , 559 F.3d 512, 523 (2009) (EPA’s choice of methodology must make sense); Puerto Rico Sun Oil Co. v. EPA , 8 F.3d 73, 77 (1st Cir. 199 3) (an agency decision must be “rational

-- technically speaking, it must not be ‘arbitrary and capricious’ . . .

-- and that requirement exists even in technical areas of regulation”).

55 See American Farm Bureau Fed’n v. EPA, supra, 559 F.3d at 520

- 22 ) (relation of EPA’s exposure data to regulatory choices made must be relevant and subject to rational explanation).

EPA Response: As discussed in a previous response to this commenter, EPA has provided the54 information it used to determine that hydrogen sulfide has moderately high to high human toxicity and high ecotoxicity and has explained the methodology by which EPA makes such determinations. Therefore, EPA disagrees with the commenter’s statement that EPA did not provide an objective rationale for its determinations.

Commenter asserts that:

“ One possibility is that EPA scientists have simply made a qualitative judgment concerning the plausibility that H 2 S exposure might occur at the levels in question. Such a judgment would be intrinsically arbitr ary when it is possible to do a proper and defensible exposure analysis.”

There is nothing in the materials that EPA has provided that even suggests that EPA made a qualitative judgment about hydrogen sulfide exposure levels. The determination as to wheth er or not a chemical has moderately high to high human toxicity or high ecotoxicity is separate from any consideration of potential exposures. EPA did not consider or evaluate the potential exposures to hydrogen sulfide in making its finding that hydrogen sulfide has moderately high to high toxicity to humans and is highly toxic to aquatic organisms. The toxicity of a chemical is an intrinsic property of the chemical that is established by determining what exposure level (i.e., dose) causes adverse effect s through appropriately conducted toxicological studies; it is not based on releases that occur at facilities. Consideration of the level of exposure from releases occurring at facilities is part of a risk assessment, not a hazard assessment. Unlike the intrinsic toxicity of a chemical, exposure levels can change depending on many factors such as release quantities, type of release, changes in weather patters, etc. As EPA has stated:

It is important to understand that although an adverse effect is known or can be reasonably anticipated to be caused by a chemical on the section 313 list, a release of a chemical into a community does not necessarily mean that the effect will occur. Exposure and dose are also important factors in determining whether an adve rse effect occurs and how serious the manifestation will be. The listing of a chemical on the section 313 list does not mean that a particular community will experience these adverse effects. Instead the purpose for listing a chemical is to ensure that t he public gets information about releases of such chemicals. Thus, EPA believes that for chemicals that typically do not affect solely one or two species but rather affect changes across a whole ecosystem and for which there is well

- documented evidence su pporting the adverse effects, that their addition to the EPCRA section 313 list is warranted even though the severity of the adverse effects that they induce will be dependent upon site

- specific

characteristics. Once EPA makes release data available throu gh TRI, the community may then make its own determination on the importance of these releases (and their potential adverse effects).

[59 FR 61433, 11/30/1994]

I n upholding EPA’s interpretation of EPCRA section 313 listing decisions as it relates to

the use of exposure , the U.S. Court of Appeals for the District of Columbia Circuit itself provided a very good example of the difference between the toxicity of a chemical and exposure

to that chemical:55 It is not the case that the congressional language man dating listing of a chemical that ‘ is known to cause or can reasonably be anticipated to cause in humans ’ the enumerated adverse effects unambiguously incorporates the likelihood of contact between humans and the chemical. A simple analogy quickly refutes NPG's argument that the language is unambiguous. Consider a herpetologist and a student contemplating a reptile imprisoned in a glass cage. The student asks, ‘ Can that snake's bite reasonably be anticipated to

cause death in humans? ’ The scientist repl ies, ‘ Yes. ’ The scientist is not commenting on the likelihood of the serpent's escape, only the toxicity of its venom. Concededly, his answer could be taken to mean, ‘ Yes, it is likely that this creature will escape, bite someone, and kill them. ’ But th at is certainly not the unambiguous purport of his words. Even so is the statutory language of Congress. It is conceivable that Congress may have contemplated release in its phrasing of the standard, but that is certainly not unambiguously the case.

[ Tr oy Corp. v. Browner, 120 F.3d 277 , 285 (D.C. Cir. 1997).]

The example of a venomous snake in a glass cage provides a perfect illustration of the difference between exposure and toxicity. Just as the containment of the venomous snake in a glass cage does not change the fact that the snake’s venom is highly toxic, lack of exposure does not lessen the intrinsic toxicity of a chemical. Lack of exposure addresses the issue of the level of risk, not the level of toxicity.

Comment:

III. THE HAZARD EVALUATIO N BY EPA DID NOT PROPERLY CONSIDER THE

BEST AVAILABLE SCIENTIFIC EVIDENCE CONCERNING H 2 S TOXICITY AND

EXPOSURE

A. EPA Has Not Properly Considered Recent Clinical Data Concerning the

Neurobehavioral Effects of H 2 S

The hazard assessment for potential chr onic human health effects conducted by EPA to support its determination under EPCRA Section 313(d)(2)(B) is based on the IRIS Assessment

for H 2 S. Because the IRIS document was completed in 2003, it does not reflect some of the best

available scientific inf ormation. EPA should base its current hazard assessment on all relevant

current information. 56

As EPA has acknowledged, the nasal olfactory lesions that have been nominally characterized by EPA as chronic respiratory effects are likely to just be anothe r manifestation of
neurotoxicity, “such that consideration of one may be inclusive of the other.” 57 The conclusions in the EPA chronic toxicity hazard assessment concerning the levels at which H 2 S causes various types of neurotoxicity and nasal lesions are all based on animal studies, which EPA has deemed to be of likely relevance to potential effects in humans. Because one important clinical study of potential neurological effects of H 2 S exposure in humans was conducted subsequent to completion of the IRI S assessment, EPA has not considered it.56 In Fiedler et al. (2008), 74 healthy male and female volunteers participated in a clinical study designed to evaluate neurobehavioral effects of 2

- hour controlled chamber exposures to

H 2 S . Neurobehavioral effects w ere evaluated using a battery of established tests immediately prior to, and immediately following, exposure to 0.05, 0.5, and 5.0 ppm H 2 S in separate sessions approximately one week apart. The sequence of exposures was randomly assigned to each subject. The investigators reported that no significant changes were found between pre

- and post

exposure performance, and that no dose

- response was found in any of the neurobehavioral or neurosensory data sets.

Although the exposures studied in the Fiedler et al

. (2008) study did not constitute chronic exposure, this study is highly relevant in establishing the levels at which humans might experience neurological effects from H 2 S exposure. The neurobehavioral endpoints that were evaluated are likely to be much mo re effective in capturing subtle neurological impairments that

could not be detected in animal studies.

49 Fiedler N., Kipen H., Ohman

- Strickland P., Zhang J., Weisel C., Laumbach R., Kelly

McNeil K., Olejeme K., and Lioy P. (2008). Sensory and Cognitiv e Effects of Acute Exposure to Hydrogen Sulfide. Env. Health Persp . 116(1):78

- 85.

56 See American Mining Congress, supra , 90 7 F.2d at 1188 (data from 1980 rulemaking to list six wastes as “hazardous” under RCRA was inadequate as to certain of these wast es to support EPA’s 1988 relisting, necessitating remand).

57 75 Fed. Reg. at 8893.

EPA Response: Commenters provided an additional primary literature resource for the evaluation of hydrogen sulfide human health effects. However, the commenters mistake nly reported no significant changes between pre

- and post

- exposure performance. This is inaccurate as the authors identified significant impairment of verbal learning in all exposure groups (p ≤ .0.0003). Although the response was not dose dependent, the a uthors offer several explanations for this finding including a threshold effect for hydrogen sulfide as low as 0.05

ppm.

EPA’s Federal Register notice of Intent to Lift the Stay of the hydrogen sulfide reporting requirements specifically states that the human health concern for hydrogen sulfide is chronic human health effects (both upper respiratory and neurotoxic effects) (75 FR 8893, February 26,

2010 ). As the commenter s correctly point ed out, the Fiedler et al. study “Sensory and Cognitive

Effects of Acute Exposure to Hydrogen Sulfide” evaluated only acute exposures

– not chronic exposures. The stu dy evaluated subjects exposed to hydrogen sulfide for ≤ 2 hours. Therefore, the study in question is not relevant to the chronic human health effects or the environmental effects that form the basis of EPA’s cited concerns for hydrogen sulfide.

While the Fiedler et al. study may be relevant in establishing the levels at which humans might experience neurological effects from acute hydrogen sulfide exposure, the Agency does not support the extension to chronic neurological effects. The Fiedler et al. stud y was designed to evaluate cognitive endpoints shown to be responsive in acute studies. As detail ed in the Federal Register (75 FR 8891, February 26, 2010 ), hydrogen sulfide neurotoxicity is thought to occur due to hypoxia induced neuronal cell death. Th is pathology would not be evidenced in the57 short

- term human study conducted by Fiedler et al. because the exposures were acute not chronic. Therefore, we would also conclude that the neurobehavioral endpoints that were used in

the Fiedler et al. study are not, as the commenter s suggests, “likely to be much more effective in capturing subtle neurological impairments that could not be detected in animal studies” since the effects of chronic exposure would not be observed. The ability to sacrifice animals to study neurotransmitters and brain chemistry provides information that is not available in human

studies. These types of studies provide powerful quantitative data, as evidenced in Skrajny, et al.(1992).

It should also be noted that the hydrogen sulfide inhalation exposure in the Fiedler et al. study ranged from 0.05 to 5.0 ppm. This is far below the lowest observed adverse effect levels (LOAELs) seen in the animal studies of neurotoxicity cited in EPA’s notice of Intent to Lift the Stay and support mate rials. The Fiedler et al. study may indicate that hydrogen sulfide can cause adverse effects in humans at exposure levels (at least acute exposure levels) much lower than previously expected.

Comment:

B. EPA Has Not Considered New Information on Tissue Dosimetry in Determining the No Observed Adverse Effect Levels for Chronic Inhalation Exposure to H 2 S

The fact that no adverse effects were observed by Fiedler et al. (2008) in humans exposed

to H 2 S at a concentration of 5 ppm is of particular interest b ecause there are two other recent studies in which tissue dosimetry was utilized to establish a human equivalent concentration (HEC) based on the NOEL for nasal lesions in rats. Like the Fiedler study, these studies were not available when EPA completed it s IRIS assessment for H 2 S in 2003.

In Schroeter, et al. (2006), 58 the authors used computational fluid dynamics (CFD) modeling to quantitatively correlate H 2 S tissue dosimetry in rat and human nasal passages. Assuming that equivalent H 2 S flux values wil l induce similar responses in the olfactory regions of rats and humans, the no

- observed

- adverse

- effect level human

- equivalent concentration (NOAEL

- HEC) was estimated to be 5 ppm.

In Schroeter, et al . (2010), 59 the authors investigated interhuman variabili ty of H 2 S nasal dosimetry using anatomically accurate CFD models of the nasal passages of five adults and two children generated from magnetic resonance imaging (MRI) or computed tomography (CT) scan data. Using allometrically equivalent breathing rates, the authors simulated steady

- state inspiratory airflow and H 2 S uptake. Approximate locations of olfactory epithelium were mapped in each model to compare air:tissue flux in the olfactory region among individuals. The fraction

of total airflow to the olfac tory region ranged from 2 percent to 16 percent. Despite this wide range in olfactory airflow, H 2 S dosimetry in the olfactory region was predicted to be similar among individuals. Differences in the 99th percentile and average flux values were <1.2

- fold at inhaled concentrations of 1, 5, and 10 ppm. These preliminary results suggest that differences in nasal anatomy and ventilation among adults and children do not have a significant effect on H 2 S dosimetry in the olfactory region.58 In combination, the F iedler and Shroeter studies demonstrate that chronic human health effects are not likely at H 2 S concentrations of 5 ppm or below. This concentration is far above

the ambient H 2 S concentrations from routine releases reported by EPA and PHS, as well as the

various H 2 S standards established by individual states.

58 Schroeter J.D., Kimbell J.S., Andersen M.E., and Dorman D.C. (2006). Use of a pharmacokinetic

- driven computational fluid dynamics model to predict nasal extraction of hydrogen sulfide in rats and humans . Toxicol. Sci . 94(2):359

- 367.

59 Schroeter J.D., Garcia G.J. M., and Kimbell, J.S. (2010). A computational fluid dynamics approach to assess interhuman variability in hydrogen sulfide nasal dosimetry.

Inhalation Toxicol . 22(4): 277

- 286.

EPA Res ponse: The Agency would like to thank the commenters for bringing additional primary research studies to our attention, enabling us to make decisions using all available resources. EPA agrees with the commenters in regard to consideration of the dosimetr y information presented in both papers by Schroeter et al . This type of pharmacokinetic modeling and the results presented represent the current state

- of

- the

- science for inhalation dosimetry and are being reviewed by EPA for its utility in addressing our current reference concentration (RfC) derivation methods (see http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=212131 ). However, it is important to note that the purpose of the papers by Schroeter et al. was to provide

a model

- based NOAEL

- HEC (5 ppm), not an alternative final RfC which incorporates the application of uncertainty factors. Thus, the only part of the EPA’s methods in deriving a value

that is addressed is the calcul ation of an HEC extrapolated from animal data. No judgment is made by these authors that 5 ppm represents a replacement or alternative RfC or serves to replace or reduce the application of uncertainty factors. EPA's human health hazard assessment for hyd rogen sulfide is based on the Agency’s current IRIS toxicological profile (Ref. 3) , and while this new dosimetry information and resulting NOAEL

- HEC might be considered in a revaluation of the current RfC, it does not impact EPA’s assessment of the potenti al for hydrogen sulfide to cause chronic toxicity.

The Agency does not concur with the commenter’s conclusion that the Fiedler and Shroeter studies demonstrate that chronic human health effects are not likely at hydrogen sulfide concentrations of 5 ppm o r below. As noted, the Fiedler study addresses solely acute exposures and is not relevant to chronic effects. Further, the Schroeter reports only provide data for use in calculating the NOEAL

- HEC based on pharmacokinetic modeling. Therefore, the comment er’s conclusions regarding chronic human health effects of hydrogen sulfide are not supported by the studies presented.

Comment:

IV. THERE IS NO NEED TO INCLUDE H 2 S AMONG THOSE SUBSTANCES SUBJECT TO TOXIC CHEMICAL RELEASE REPORTING REQUIREMENTS

A. Al though Accidental Releases of H 2 S Can Result in Serious Adverse Effects, Accidental Releases Are Subject to Emergency Notification Requirements under59 EPCRA Section 304

As explained above, emissions of H 2 S that would typically be reported under EPCRA

Sectio n 313 cannot be reasonably anticipated to cause any of the chronic health effects covered by EPCRA Section 313(d)(2)(B). In contrast, it is widely recognized that high level exposures to

H 2 S that may occur as a consequence of industrial accidents may cause serious adverse health effects, including death. Accidental releases of potentially dangerous quantities of H 2 S are subject to the emergency notification requirements established by EPCRA Section 304 60 and by

CERCLA Section 103. 61 Such accidental releas es are expressly regulated pursuant to CAA
Section 112(r), 62 and H 2 S is among the substances that were specifically identified for such regulation by Congress in Section 112(r).

B. Since There Is No Evidence That Would Suggest That Routine Releases of H 2 S Pose Any Risk, Nothing Would Be Achieved by Adding Reporting Requirements

under EPCRA Section 313

Since emissions of H 2 S that would typically be reported under EPCRA Section 313 are irrelevant to potential chronic health effects of the type addressed by EPCRA Section 313(d)(2)(B), and accidental releases of H 2 S that might be expected to present a potential hazard are well regulated under EPCRA Section 304, CERCLA Section 103, and CAA Section 112(r), the reporting that would be compelled by a listing for H 2 S under EPCRA Section 313 serves no purpose. Even if EPA has properly determined that H 2 S has “moderately high to high chronic toxicity,” 63 EPA is not required to list H 2 S in these circumstances.

In announcing its policy concerning use of exposure analys es in listing determinations under EPCRA Section 313(d)(2), EPA stated:

The statute is silent on the issue of exposure considerations for the section 313(d)(2)(B) and (C) criteria. The language of section 313 does not prohibit EPA from considering exposu re factors when making a finding under either section 313(d)(2)(B) or section 313(d)(2)(C). 64

The reviewing court that reviewed this construction expressly affirmed this conclusion, stating that “chemicals of moderate or high toxicity are not necessarily added [to the list] because of

it.” 65

EPA has not cited any adverse consequence from the administrative stay of reporting requirements under EPCRA Section 313 that has been in place for over 15 years. EPA should exercise its discretion to consider exposu re factors in making a new listing determination for H 2 S and then rescind its prior listing determination.

60 42 U.S.C. § 11004.

61 42 U.S.C. § 9603.

62 42 U.S.C. § 7412(r).60 63 75 Fed. Reg. at 8893.

64 59 Fed. Reg. at 61441

- 42.

65 Troy Corp. v. Browner , 120 F.3d at 287.

EPA Response: As EPA stated in response to the commenter’s previous comments on the releases of hydrogen sulfide, EPA does not agree that the commenter has shown that releases of hydrogen sulfide will not cause the kinds of hea lth and environmental effects that EPA cited as support for listing hydrogen sulfide. Most importantly, EPA is not required to show that the effects that hydrogen sulfide can cause are actually occurring in order to list it on EPCRA section

313. EPA note s that other commenters have provided comments alleging that they have experienced adverse health effects from hydrogen sulfide releases (see for example: EPA

- HQ

TRI

- 2009

- 0844

- 0076

, EPA

- HQ

- TRI

- 2009

- 0844

- 0081 in this document).

Regarding the fact that acci dental releases of hydrogen sulfide that may cause serious

adverse health effects including death are covered by other statutes, this has no impact on the listing of a chemical under EPCRA section 313. Listing of a chemical under EPCRA section 313 is sepa rate and apart from any other regulatory actions. EPCRA section 313 is focused on a community’s right

- to

- know about releases of toxic chemicals, not emergency reporting requirements for industrial accidents.

With regard to the commenter’s statements that listing hydrogen sulfide on EPCRA section 313 serves no purpose, the Agency disagrees. As EPA has stated:

It is important to understand that although an adverse effect is known or can be reasonably anticipated to be caused by a chemical on the section 31 3 list, a release of a chemical into a community does not necessarily mean that the effect will occur. Exposure and dose are also important factors in determining whether an adverse effect

occurs and how serious the manifestation will be. The listing of a chemical on the section 313 list does not mean that a particular community will experience these adverse effects. Instead the purpose for listing a chemical is to ensure that the public gets

information about releases of such chemicals. Thus, EPA believ es that for chemicals that typically do not affect solely one or two species but rather affect changes across a whole ecosystem and for which there is well

- documented evidence supporting the adverse effects, that their addition to the EPCRA section 313 lis t is warranted even though the severity of the adverse effects that they induce will be dependent upon site

- specific

characteristics. Once EPA makes release data available through TRI, the community may then make its own determination on the importance of these releases (and their potential adverse effects)

.

[59 FR 61433, 11/30/1994 (emphasis added)].

Listing a chemical under EPCRA section 313 allows the public and governments to track and assess the impacts of chemical releases and make determinations a s to whether or not a risk exists. Without release data, the public is limited in its ability to determine whether or not releases of a toxic chemical are impacting their health and/or environment. Even if releases are low and no adverse impacts are expe cted, that information is still of value to the public.61 The listing of hydrogen sulfide on EPCRA section 313 is consistent with EPA’s stated policy on the use of exposure assessments, which does not include the use of exposure for chemicals such as hydr ogen sulfide that have moderately high to high human toxicity and high ecotoxicity. The commenter suggests that EPA should exercise its discretion with regard to the consideration of exposure, citing Troy Corp v. Browner for the proposition that “chemical s of moderate or high toxicity are not necessarily added [to the list] because of it.” Placed in greater context, that quotation is as follows:

The EPA's exposure policy merely informed the public that the agency would exercise its discretion by consideri ng exposure only for low toxicity chemicals.

The EPA did not th ereby curtail this discretion; it did nothing more than clarify its own position. The policy does not impose rights or obligations or bind the agency to a particular result. Chemicals of lo w toxicity may be added despite the policy, just as chemicals of moderate or high toxicity are not necessarily added because

of it.

[ Troy Corp. v. Browner , 120 F.3d at 287.]

As the D.C. Circuit noted, EPA stated that it would exercise its discretion by co nsidering exposure only for low toxicity chemicals. If EPA were to consider exposure for hydrogen sulfide it would be inconsistent with the Agency’s stated policy on the use of exposure assessments in EPCRA section 313 listing decisions. While EPA does h ave discretion to deviate from its policy, the Agency does not believe that there is any reason to consider exposure in its listing decision for hydrogen sulfide and thus has no reason to deviate from its stated exposure policy.

Comment:

V. IF EPA DECID ES TO AFFIRM THE LISTING OF H 2 S UNDER EPCRA SECTION 313 AND LIFT THE ADMINISTRATIVE STAY OF REPORTING REQUIREMENTS,

EPA MUST PROVIDE ADDITIONAL GUIDANCE ON THE TIMING AND QUANTIFICATION OF REPORTING

A. Since Procedures Are Not Currently in Place to Colle ct the Required Data

on H 2 S Releases, Reporting Should Not Begin Until after a Full Year of

Emissions Data Is Available

If EPA decides that it may lawfully affirm its prior listing determination for H 2 S and that it will proceed with its stated intention to lift the administrative stay, EPA must be careful to limit the potential impact on those entities that will be obligated to submit reports by establishing an appropriate transitional process. In particular, EPA should defer the first reporting cycle so

a ffected entities can properly prepare for reporting.

EPCRA Section 313(d)(4) 66 establishes rules for determining when reporting obligations commence for any “revision” made to the list. Revisions made before December 1 of any calendar year “take effect ” in the next calendar year and revisions made on or after December 1 “take effect” in the calendar year after the next calendar year. EPA has implemented this62 provision by requiring the initial reports for a newly added chemical to include reportable

rel eases during the calendar year when the revision “takes effect” and to be submitted no later than July 1 of the calendar year after that.

There is no logical reason to establish a transitional regime for reporting requirements that have been stayed since 1994 that is different than the transitional regime for a newly added substance. In each instance, affected facilities must have time for planning needed to measure, record, and document those releases that are subject to reporting. EPA has not clearly stated that a decision to reaffirm its prior listing decision for H 2 S and to lift the administrative stay of reporting requirements would be construed by EPA as a “revision” that falls within the scope of EPCRA Section 313(d)(4), and it should do so. If E PA were to decide to lift the administrative stay before December 1, 2010, the first reports due should cover releases during calendar year 2011 and be due on or before July 1, 2012. If EPA were to decide to lift the administrative stay

on or after Decemb er 1, 2010, but before December 1, 2011, the first reports due should cover releases during calendar year 2012 and be due on or before July 1, 2013.

66 42 U.S.C. § 11023(d)(4).

EPA Response: EPA intends to treat the removal of the administrative stay of the EPCRA section 313 reporting requirements for hydrogen sulfide as it does a new chemical listing for the purposes of determining when reporting obligations commence. Therefore, the earliest that reporting would begin for hydrogen sulfide would be for r eporting year 201 2 , with reports due July 1, 201 3

.

Comment:

B. EPA Should Be Prepared to Provide Guidance on Reportability

In the event that EPA decides to affirm its listing determination for H 2 S and to lift the administrative stay of reporting requirem ents, EPA should be prepared to provide guidance to industry sectors that may seek clarification on what constitutes a threshold quantity or a reportable release for H 2 S. Given the oxidation rate of dissolved H 2 S and the various ionized forms that are depe ndent on pH, this issue of reportability may be of particular concern to facilities with potential discharges to streams or water bodies.

EPA Response: EPA will provide guidance as necessary.63 Commenter: The Natural Resources Defense Council [EPA

- HQ

- TRI

- 2 009

- 0844

- 0088]

Comments on EPA’s “Hydrogen Sulfide; Community Right

- to

- Know Toxic Chemical Release Reporting” Intent to consider lifting administrative stay; opportunity for public comment, 75 Fed. Reg. 8,889 (Feb. 26, 2010).

In its February 26, 2010 Fede ral Register notice, the Environmental Protection Agency (“EPA”) solicits comments on its proposal to lift the administrative stay of the Emergency Planning and Community Right

- to

- Know Act (“EPCRA”) section 313 toxic chemical release reporting requirements for hydrogen sulfide, a stay that has been in place for 16 years. See 75 Fed. Reg. 8,889 et seq. (Feb. 26, 2010). EPA proposes to lift the administrative stay to require certain industries to report their emissions of hydrogen sulfide and their pollution prevention and recycling data. Id. at 8,890. The Natural Resources Defense Council (“NRDC”) is pleased to support EPA lifting the administrative stay, which has been in place for almost two decades.

Hydrogen sulfide is a chemical emitted by, among other things, oil refineries, paper mills, chemical plants, natural gas processing plants, and sewage treatment plants. Lifting the administrative stay would require that these facilities report their emissions through the Toxics Release Inventory (“TRI”). Repor ting this information would not only provide citizens, regulators, and industry with a clearer picture of industrial hydrogen sulfide emissions of the gas, but also would facilitate development of appropriate regulation of this chemical. The current state of the science on hydrogen sulfide validates EPA’s original TRI listing of the chemical in 1993. Moreover, the legal framework of EPCRA necessitates the removal of this stay. We commend EPA for finally taking action after 16 years to remove the stay.

I. EPCRA background

EPA developed the EPCRA TRI list to give the public access to information about chemical releases in their area. The TRI list is authorized by section 313 of EPCRA, which requires that “owners and operators of any particular facility tha t manufactures, processes, or otherwise uses a toxic chemical listed” on the TRI list report their emissions to EPA. 42 U.S.C. § 11023(a). Since its development in the late 1980s, EPCRA has added hundreds of chemicals to the TRI list, bringing the total to approximately 650. 1 EPA has increased the number of industries that are required to report their emissions and also requires that persistent, bioaccumulative, and toxic (PBT) chemicals report at a lower emissions threshold. 2

EPCRA lays out specific criter ia that must be met for a chemical to be added to the TRI list in section 313(d)(2) of the statute. There are three alternative avenues to listing: § 313 (d)(2)(A) “acute human health effects” criteria, § 313 (d)(2)(B) “chronic human health effects”

criter ia, and § 313 (d)(2)(C) “environmental effects criteria.” Regardless of which subsection is used, § 313(d) states that a determination to list a chemical “shall be based on generally accepted scientific principles or laboratory tests, or appropriately desi gned and conducted epidemiological or other population studies, available to the Administrator.” Congress, in discussing this statutory standard, noted that:

The purpose of [Section 313] is to inform the public which can be accomplished without ve ry great burden on the reporting facility. Therefore, a decision to list a chemical for the purposes of reporting under this section can and64 should be made on the basis of less scientific evidence than would be needed to regulate its manufactur e, use, or disposal.

132 CONG. REC. S14,908 (1986) (Statement of Sen. Stafford).

This expansive approach to listing chemicals under section 313 is necessary to meet the public disclosure goals of the statute. The list aims to provide the public with an understanding of the chemical emissions in their area. Moreover, this information acts to incentivize reductions in emissions, and provides public health agencies and researchers with information on exposure levels, which all ultimately drive the developme nt of regulation.

II. History of Reporting of Hydrogen Sulfide Under the EPCRA TRI Rules

On February 24, 1992, NRDC and then

- Governor of New York Mario Cuomo filed a

petition asking EPA to list 82 toxic chemicals on the EPCRA “section 313” list. 3 All 82 of these chemicals, including hydrogen sulfide, were already listed at the time as toxic wastes under the Resource Conservation and Recovery Act’s (“RCRA”) “U list,” 40 C.F.R. § 261.33. Placement on the “U list” requires a finding that chemicals have been shown “in reliable scientific studies to cause chronic adverse health effects or have other hazardous characteristics.” 40 C.F.R. § 261.11(a). The NRDC petition asserted that these “U list” placement standards were equal to, if not more stringent than, th e requirements for listing under EPCRA’s 313 TRI rules which require only “generally accepted scientific principles or laboratory tests.” 4 The American Petroleum Institute (“API”) wrote EPA to oppose the NRDC Petition before the agency had even taken

acti on on the petition, stating that the petition did not meet the minimum scientific requirements

of section 313. 5

EPA issued a proposed TRI rule on September 8, 1992 partially granting the NRDC Petition and proposing to add 68 chemicals and 2 chemical cate gories to the EPCRA section 313 list. In the proposed rule, EPA first noted that based on aquatic toxicity test data there was “sufficient evidence for listing hydrogen sulfide on EPCRA section 313 pursuant to EPCRA section 313(d)(2)(C) based upon the avai lable ecotoxicity data for this chemical.” 57 Fed. Reg. 41,020, 41,028 (Sept. 8, 1992). In addition to these environmental effects, EPA also found sufficient evidence for listing hydrogen sulfide on the 313 list based on “available respiratory toxicity dat a” pursuant to § 313(d)(2)(B), EPCRA’s “chronic human health effects” listing. Id. API and other industry groups took issue with the listing of hydrogen sulfide based on chronic human health effects, and instead stated that an analysis under §313(d)(2)(A)’ s “acute effects” was more appropriate based on the science. 6 EPA agreed with industry that “the respiratory and some of the neurotoxic effects reported in humans are most likely due to its acute effects.” 7 EPA promulgated the final rule on December 1, 1 993, and in doing so, listed hydrogen sulfide based on the statutory criteria found in both § 313(d)(2)(C) and § 313(d)(2)(B). 8 With respect to listing under § 313(d)(2)(B)’s “chronic human health effects” criteria, EPA, in response to industry comments, b ased its finding on chronic neurotoxic effects, rather than the proposed rule’s finding

based on respiratory effects, which EPA claimed in the interim to be more acute in nature. 9

Industry groups expressed concern that they did not have an opportunity to comment on65 the changed basis for listing under § 313(d)(2)(B) from chronic respiratory effects in the proposed

rule to chronic neurotoxic effects in the final rule and claimed that the Administrative Procedure Act had been violated. Despite the fact that E PA’s finding under § 313(d)(2)(C) of “environmental effects” was alone sufficient to place hydrogen sulfide on the EPCRA 313 list and require TRI reporting by industry, EPA decided to grant an administrative stay of the reporting requirements of the rule. On August 22, 1994, EPA published the administrative stay in the Federal Register stating it would “review new data and information made available subsequent to promulgation of the final rule.” 10 The agency noted that the stay was 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.” 11 However, the agency also noted that no formal petition for review of the rule had actually been filed, although industry groups had purportedly 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.” 12 Despite language in the notice indicating that EPA would make a “prompt” decision on the stay, and “soon,” the administrative stay has remained in place for almost 16 years.

EPA’s recent Federal Register notice proposing to lift the stay points out that “by this current action, EPA is not revisiting the origi nal listing decision, which was accomplished by final rule on December 1, 1993.” 13 Further, the notice points out that while the science on hydrogen sulfide has been updated in the interim, “the listing decision was dictated by the acute aquatic toxicity finding alone under EPCRA section 313(d)(2)(C)” when the rule was finalized in

December of 1993. 14 In the current notice, EPA reiterates the correctness of listing hydrogen sulfide under both under § 313 (d)(2)(C) based on aquatic toxicity, and under § 3 13 (d)(2)(B) based on both respiratory and neurological effects. Both legal precedent and the updated body of science available on hydrogen sulfide support EPA’s removal of the administrative stay.

1 U.S. EPA, What is the Toxics Release Inventory (TRI) P rogram, http://www.epa.gov/TRI/triprogram/whatis.htm (last visited Apr. 16, 2010).

2 Id. 3 The Honorable Mario Cuomo, Governor of New York and the Natural Resources Defense Council, Petition to List

82 Toxic Chemicals From the Resource Conservation and Recovery Act “U” List under Section 313 of the Emergency Planning and Community Right

- To

- Know

- Act (Feb. 24, 1992) available at EPA Docket No. EPA

- HQ

TRI

- 2005

- 0019

- 0425 ( hereinafter “NRDC Petition”). 4 42 U.S.C. § 11023 (d).

5 Letter from G. William Frick, Vice President, Health and Environment, American Petroleum Institute to EPA Docket Clerk (July 20, 1992) available at EPA Docket No. EPA

- HQ

- TRI

- 2005

- 0019

- 0424 (hereinafter “API Letter”). 6 U.S. EPA, EPCRA Section 313 Petition to Add RCRA Chemicals and Responses to Rebuttal Comments on FR Notice , at 10 (Sept. 9, 1993) available at EPA Docket No. EPA

- HQ

- TRI

- 2005

- 0019

- 0400.

7 Id. at 11 (emphasis added). 8 Chemicals; Toxic Chemical Release Reporting; Community Right

- to

- know; Significant New Use Ru le, 58 Fed. Reg. 63,500 et seq. (Dec. 1, 1993).

9 Id. at 63,509.

10 Hydrogen Sulfide; Methyl Mercaptan; Toxic Chemicals Release Reporting; Community Right

- to

- Know; Stay of Reporting Requirements, 59 Fed. Reg. 43,048 et seq. (Aug. 22, 1994).

11 Id. a t 43,050.

12 Id.

13 75 Fed. Reg. at 8889.66 14 Id. at 8891.

Comment:

III. EPA Must Immediately Lift the Administrative Stay

EPA should act immediately to lift the administrative stay of the reporting requirements for hydrogen sulfide under EPCRA. The stay was not only inappropriate at the time it was issued, but also the duration of the stay violates foundational principles of administrative law.

In particular, and most glaringly, the original stay issued under 5 U.S.C. § 705 of the

Administrativ e Procedure Act (“APA”) to defer the reporting requirements circumvented traditional rulemaking processes. The full text of the statute EPA cited to in 1993 for deferring reporting requirements of hydrogen sulfide reads:

When an agency finds that justic e so requires, it may postpone the effective date of action taken by it, pending judicial review. On such conditions as may be required and to the extent necessary to prevent irreparable injury, the reviewing court, including the court to which a case may be taken on appeal from or on application for certiorari or other writ to a reviewing court, may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings

5 U.S.C. § 705

In reading this section in context, it becomes apparent that the Administrative Procedure Act did not intend this part of the Act to be used to circumvent traditional rulemaking processes. Rather,

the section clearly contemplates the option of staying the rule specifically during the pendency of litigation, to avoid harm to parties affected by the action. In this way the rule complements and promotes the administrative rulemaking process. EPA nonetheles s stayed the hydrogen sulfide reporting requirements in the absence of any pending judicial review. Were EPA to simply stay indefinitely any rule that prompted industry concern, the entire regulatory capacity of the agency would grind to a halt. Parties mu st challenge rulemakings in court to halt lawfully adopted rules, rather than exerting pressure on the issuing agency. This well

- understood practice protects the rulemaking process from inappropriate influence and allows for timely disposition of issues. I t also protects the public against the improper blockage of lawfully adopted rules based on political or powerful interest group complaints.

In case law relating to an agency’s use of this provision of the APA to stay its own rule,

courts note that these stays are implemented during the pendency of judicial review, and not at the agency’s whim in the face of industry criticism. 15 In this sense, the courts analogize a stay under 5 U.S.C. § 705 to a preliminary injunction, where the rule is stayed to avoid h arm until the issue is

resolved. 16

Moreover, the D.C. Circuit has specifically rejected EPA’s ability to drag out administrative
stays. NRDC v. Reilly presents an analogous situation, where EPA in 1979 added radionuclides to67 the Clean Air Act’s list of h azardous air pollutants. 17 The agency was required to promulgate emission standards within 180 days of this listing, and failed to do so until 1985 in violation of numerous court orders. Despite this, the Agency stayed its own implementation of the standa rds, purportedly because it had received adverse comments from other federal agencies about the impact that the emissions standards would have. The agency then “concluded that it should treat the comments and information filed by [the National Institute of Health] and NRC as petitions for

reconsideration of the standard.” 18 The Clean Air Act, in section 307, specifically states that an administrative stay may be implemented for up to a period of three months. 19 The agency attempted to further extend a stay issued under section 307 of the Clean Air Act through the use of the general authority found in section 301 of the Clean Air Act, and 5 U.S.C. § 705, the authority relied on for the hydrogen sulfide administrative stay. The court rejected EPA’s ability

to drag out rulemaking based on these general provisions, and vacated the stay. Though NRDC v. Reilly dealt with the specific provision for administrative stays under the Clean Air Act, the time it took for the agency to promulgate regulations clearly colore d the court’s view. As applied to hydrogen sulfide, both the duration of the stay and the fact that there was no pending litigation regarding the reporting requirements speak to the impropriety of the stay both at its inception and

for its duration. Both o f these factors speak to the importance of EPA’s immediate removal of the administrative stay. In addition to the legal necessity of lifting the administrative stay, current science supports EPA’s 1993 finding that hydrogen sulfide should be listed on the TRI section

313 list.

15 See, e.g.

, Bakersfield City School Dist. of Kern County v. Boyer , 610 F.2d 621, 624 (9th Cir. 1979) (“The agency or the court may postpone or stay agency action pending such judicial review”). 16 See, e.g., State of Ohio ex re l. Celebrezze v. Nuclear Regulatory Com'n, 812 F.2d 288 (6th Cir. 1987). 17 976 F.2d 36 (D.C. Cir. 1992).

18 Id. at 38 (quoting 54 Fed.Reg. 51,654, 51,668 (1989)). 19 42 U.S.C. § 7607(d)(7)(B) (“The effectiveness of the rule may be stayed during such reconsideration, however, by the Administrator or the court for a period not to exceed three months.”).

EPA Response:

Commenter states that: “EPA should act immediately to lift the administrative stay of the reporting requirements for hydrogen sulfi de under EPCRA. The stay was not only inappropriate at the time it was issued, but also the duration of the stay violates foundational principles of

administrative law.”

EPA appreciates the commenter’s support of the lifting of the administrative stay o f the EPCRA section 313 reporting requirements for hydrogen sulfide.

The delay in taking action on the administrative stay of the EPCRA section 313 reporting requirements was a combination of competing actions, resources, and administration priorities.

T he 1994 stay of the hydrogen sulfide reporting requirements was never administratively or judicially challenged, and comments on the legal propriety of issuing the stay in 1994 are beyond the scope of this action.68 Comment:

IV. Scientific studies on the impact of hydrogen sulfide

a. Hydrogen sulfide background

Hydrogen sulfide is a flammable gas that occurs in petroleum and coal deposits. It is also produced by the anaerobic decomposition of organic matter, by industrial processes and by a variety of natural sources. Industrial and agricultural sources of hydrogen sulfide include the petroleum refining and natural gas industries, coke oven plants, kraft paper mills, tanneries, swine containment and manure treatment facilities, and wastewater treatm ent facilities. 20 Humans begin to detect the odor of hydrogen sulfide at concentrations of 0.0005 to 0.3 parts per million (ppm), but may lose their ability to detect it at concentrations above 100 ppm due to olfactory tissue damage. 21 Hydrogen sulfide con centrations in air in non

- polluted areas range from 0.11 to 0.33 parts per billion (ppb), 22 but concentrations above 90 ppb (0.09 ppm) have been measured in

residential areas near natural or industrial sources. 23

Few studies have analyzed hydrogen sulfid e concentrations in outdoor ambient air in areas near emission sources. In Dakota City and Sioux City Nebraska, hydrogen sulfide concentrations of >1 ppm were measured 275 times from 1995 to 1999. 24 These concentrations exceed the Minimal Risk Level (MRL) of 0.02 ppm established by the Agency for Toxic Substances and Disease Registry (ATSDR). The MRL is an estimate of daily human exposure to a hazardous substance that is likely to be without an appreciable risk of adverse noncancer health effects over

a spe cified route and duration of exposure. 25 They are also above the World Health Organization (WHO) air quality guideline of 150 μ g/m3 (roughly equivalent to 0.1 ppm), and the EPA Reference Concentration of 2x10 mg/m (0.001 ppm). 26 Sources of hydrogen sulfide in the area include a beef slaughter facility, a leather tanning facility, a wastewater lagoon, and municipal wastewater treatment plants. 27

Natural gas wells may also release large quantities of hydrogen sulfide. Leahey and Schroeder (1986) estimated hy drogen sulfide concentrations of 2 ppm and 14 ppm downwind of two sour gas well blowouts. 28

b. Adverse effects on human health

The harmful effects of hydrogen sulfide exposure have been well documented. Hydrogen

sulfide interferes with oxidative metabolism and adversely affects the respiratory, nervous, and cardiovascular systems. High airborne concentrations (> 50 ppm) lead to unconsciousness and

death. 29 Much of the data on human health effects comes from case studies of occupational
exposures t o high concentrations resulting in poisoning. However, animal studies provide important information on health effects from short

- and medium

- term low

- level exposures that may be more relevant to populations living near emissions sources and to workers regul arly exposed to low concentrations. These include metabolic, respiratory, neurological, reproductive, and developmental effects. In guinea pigs, fatigue, drowsiness, dizziness, ocular irritation and a reduction in brain tissue lipids were observed as a res ult of exposure to 20 ppm for 1 hour per day for 11 days. 30 Olfactory neuron loss and basal cell hyperplasia were reported in rats exposed to

≥ 30 ppm hydrogen sulfide 6 hours/day for 10 weeks. 3169 Several animal studies have also found adverse reproductive and developmental effects associated with the inhalation of low levels of hydrogen sulfide. In one study, the flaring of sour gas containing hydrogen sulfide from oil and natural gas wells was associated with stillbirth and calf mortality in cow herds in western Canada. 32 A study of pregnant rats found statistically significant increases in blood glucose levels in animals exposed to concentrat ions of 20 to 75

ppm. 33 A subsequent study by the same researchers also found an increase in parturition times in dams exposed to ≥ 20 ppm hydrogen sulfide, and decreased time for pinna detachment and hair growth in the pups. 34 Other developmental effects observed in laboratory s tudies include alterations in Purkinje cell dendritic fields in rat pups exposed to 20 or 50 ppm hydrogen sulfide, 35
and reductions in the amino acid levels in the brain (Hannah et al. 1989). 36 Overall, rodents appear to be less sensitive to the effects of hydrogen sulfide than humans. 37 Therefore, effects may occur in exposed human populations at lower concentrations that may not produce effects in

rodent studies.

Some human studies have investigated the effects of controlled short exposures to low

conc entrations of hydrogen sulfide. A study of asthmatics found that bronchial obstruction occurred in some asthmatic individuals after exposure to hydrogen sulfide at a concentration of 2 ppm for 30 minutes. 38 Other studies indicate that short exposure to 5 p pm hydrogen sulfide increased lactate levels in the blood in healthy individuals performing submaximal and maximal

exercise. 39,40

Human occupational and epidemiological evidence indicates that long

- term hydrogen sulfide exposure in humans is associated wit h neurological, ocular, respiratory, and reproductive effects. Oil shale industry workers exposed to hydrogen sulfide concentrations in excess of 20 ppm experienced symptoms including fatigue, dizziness and poor memory. 41 Bates et al. (1997, 1998) studied the incidence of nervous system and other diseases in Rotorua, New Zealand, where residents were exposed to a median concentration of 21 ppb hydrogen sulfide/m3 air from geothermal sources and found a statistically significant increase in infant cerebral palsy, other diseases of the brain, migraine, and mononeuritis. Cataracts and diseases of the conjunctiva and eye orbit were also increased. 42,43 In South Karelia, Finland, exposure to sulfur gases including hydrogen sulfide (annual mean concentration 0.0 06 ppm; daily maximum 0.007 ppm) emitted by pulp mill operations was associated with a higher incidence of eye and respiratory symptoms: the incidence of eye symptoms was increased 11.7 times and the incidence of nasal symptoms was doubled in the exposed p opulation relative to people living in non

- polluted areas. 44 An occupational study of rayon workers at a viscose rayon plant also found ocular effects; there was a statistically significant increase in eye pain, burning and photophobia from exposure to hyd rogen sulfide and/or carbon disulfide. 45

Occupational exposure to hydrogen sulfide may also be associated with higher rates of miscarriage. Researchers have reported a statistically significant increase in rates of miscarriage in women working in rayon t extile and paper products plants in Finland who were exposed to hydrogen sulfide, sulfur dioxide, and carbon disulfide gases; the same was true for women whose husbands worked in those types of jobs. In the same study, higher miscarriage rates were also

fo und in areas with airborne concentrations of hydrogen sulfide above 0.003 ppm, although these did not reach statistical significance. 46 Significantly higher miscarriage rates were also reported for women working in petrochemical facilities in China, with h ydrogen sulfide exposure70 associated with a two

- fold increase in miscarriages. 47 Kilburn and Warshaw (1995) found a higher incidence of neurophysiological deficits in people who worked or lived downwind of a California sour crude oil refinery who were expos ed to hydrogen sulfide and other reduced sulfur

gases. 48

Campagna et al. (2004) found an association between high levels of hydrogen sulfide and increased hospital visits for asthma and all respiratory diseases in Sioux City and Dakota City,

Nebraska. Al though there are few other studies that systematically examine low

- level, long

- term exposures to humans living near sources emitting large amounts of hydrogen sulfide, these findings raise concerns about the effects of chronic exposure in sensitive subpopu lations such as children, the elderly, and people with respiratory conditions living near sources of hydrogen

sulfide emissions.

20 Agency for Toxic Substances and Disease Registry (ATSDR). 2006. Toxicological Profile for Hydrogen Sulfide (Update). Atlan ta, GA: U.S. Department of Health and Human Services, Public Health Service. 21 Agency for Toxic Substances and Disease Registry (ATSDR). 2006. Toxicological Profile for Hydrogen Sulfide (Update). Atlanta, GA: U.S. Department of Health and Human Services , Public Health Service.22 EPA. 1993. Report to Congress on hydrogen sulfide air emissions associated with the extraction of oil and natural gas. Research Triangle Park, NC: U.S. Environmental Protection Agency, Office of Air Quality Planning and Standard s. EPA453R93045. PB94131224. 23 Agency for Toxic Substances and Disease Registry (ATSDR). 2006. Toxicological Profile for Hydrogen Sulfide (Update). Atlanta, GA: U.S. Department of Health and Human Services, Public Health Service. 24 Inserra SG, Phifer BL, Anger WK, et al. 2004. Neurobehavioral evaluation for a community with chronic exposure to hydrogen sulfide gas. Environ Res 95:53

- 61. 25 Agency for Toxic Substances and Disease Registry (ATSDR). 2006. Toxicological Profile for Hydrogen Sulfide (Upd ate). Atlanta, GA: U.S. Department of Health and Human Services, Public Health Service. 26 World Health Organization (2003) Concise International Chemical Assessment Document 53, Hydrogen Sulfide: Human Health Aspects. Geneva, Switzerland: World Health O rganization. 27 Campagna D, Kathman SJ, Pierson R, et al. 2004. Ambient hydrogen sulfide, total reduced sulfur, and hospital visits for respiratory diseases in northeast Nebraska, 1988

- 2000. J Expo Anal Environ Epidemiol 14(2):180

- 187. 28 Leahey DM, Sc hroeder MB (1986) Predictions of maximum groundlevel hydrogen sulfide concentrations resulting from two sour gas well blowouts . Journal of the Air Pollution Control Association , 36:1147

– 1149. 29 Kilburn KH, Warshaw RH. Hydrogen sulfide and reduced

- sulfur gases adversely affect neurophysiological functions.

Toxicol Ind Health . 1995 Mar

- Apr;11(2):185

- 97. 30 Haider SS, Hasan M, Islam F (1980) Effect of air pollutant hydrogen sulfide on the levels of total lipids, phospholipids & cholesterol in different reg ions of the guineapig brain. Indian Journal of Experimental Biology

, 18:418

– 420. 31 Brenneman KA, James RA, Gross EA, et al. 2000. Olfactory neuron loss in adult male CD rats following subchronic inhalation exposure to hydrogen sulfide. Toxicol Pathol 28 (2):326

- 333. 32 Waldner CL, Ribble CS, Janzen ED, Campbell JR.Associations between oil

- and gas

- well sites, processing facilities, flaring, and beef cattle reproduction and calf mortality in western Canada. Prev Vet Med . 2001 Jul 19;50(1

- 2):1

- 17. 33 Hay den LJ, Goeden H, Roth SH (1990a) Exposure to low levels of hydrogen sulfide elevates circulating glucose

in maternal rats . Journal of Toxicology and Environmental Health , 31:45

– 52. 34 Hayden LJ, Goeden H, Roth SH. 1990b. Growth and development in the ra t during sub

- chronic exposure to low levels of hydrogen sulfide. Toxicol Ind Health 6:389

- 401. 35 Hannah RS, Roth SH (1991) Chronic exposure to low concentrations of hydrogen sulfide produces abnormal growth in developing cerebellar Purkinje cells. Neuro science Letters , 122:225

– 228. 36 Hannah RS, Roth SH (1991) Chronic exposure to low concentrations of hydrogen sulfide produces abnormal growth in developing cerebellar Purkinje cells. Neuroscience Letters , 122:225

– 228. 37 World Health Organization (200 3) Concise International Chemical Assessment Document 53, Hydrogen Sulfide: Human Health Aspects. Geneva, Switzerland: World Health Organization. 38 Jappinen P, Vilkka V, Marttila O, Haahtela T (1990) Exposure to hydrogen sulphide and respiratory functio n

.71 British Journal of Industrial Medicine , 47:824

– 828. 39 Bhambhani Y, Singh M (1991) Physiological effects of hydrogen sulfide inhalation during exercise in healthy

men . Journal of Applied Physiology , 71:1872

– 1877. 40 Bhambhani Y, Burnham R, Snydmille r G, MacLean I, Martin T. Effects of 5 ppm hydrogen sulfide inhalation on biochemical properties of skeletal muscle in exercising men and women. Am Ind Hyg Assoc J . 1996 May;57(5):464

- 8 41 Ahlborg G (1951) Hydrogen sulfide poisoning in shale oil industry. Archives of Industrial Hygiene and Occupational Medicine , 3:247

– 266. 42 Bates MN, Garrett N, Graham B, Read D (1997) Air pollution and mortality in the Rotorua geothermal area. Australia and New Zealand Journal of Public Health , 21:581

– 586.

43 Bates MN, Garrett N, Graham B, Read D (1998) Cancer incidence, morbidity and geothermal air pollution in Rotorua, New Zealand. International Journal of Epidemiology , 27:10

– 14. 44 Jaakkola JJ, Vilkka V, Marttila O, Jappinen P, Haahtela T (1990) The South Kareli a Air Pollution Study: the effects of malodorous sulfur compounds from pulp mills on respiratory and other symptoms. American Review of Respiratory Diseases , 142:1344

– 1350. 45 Vanhoorne M, de Rouck A, de Bacquer D. Epidemiological study of eye irritation by hydrogen sulphide and/or carbon disulphide exposure in viscose rayon workers. Ann Occup Hyg . 1995 Jun;39(3):307

- 15. 46 Hemminki K, Niemi ML (1982) Community study of spontaneous abortions: relation to occupation and air pollution by sulfur dioxide, hydrogen sulfide, and carbon disulfide. International Archives of Occupational and

Environmental Health , 51:55

– 63. 47 Xu X, Cho SI, Sammel M, You L, Cui S, Huang Y, Ma G, Padungtod C, Pothier L, Niu T, Christiani D, Smith T, Ryan L, Wang L (1998) Associa tion of petrochemical exposure with spontaneous abortion. Occupational and

Environmental Medicine , 55:31

– 36.

48 Kilburn KH, Warshaw RH. Hydrogen sulfide and reduced

- sulfur gases adversely affect neurophysiological

functions. Toxicol Ind Health . 1995 Mar

- Apr;11(2):185

- 97.49 Thompson, CR, and Kats, G. 1978. Effects of continuous H2S fumigation on crop and forest plants. Environmental Science & Technology 12(5):550

- 3.

EPA Response: The commenter has provided a summary of the chemical properties and haz ards of hydrogen sulfide

, much of which supports EPA’s conclusion that the administrative stay of the reporting requirements for hydrogen sulfide should be lifted.

Comment:

c. Adverse ecological effects

There is ample evidence th at exposure to hydrogen sulfide at low concentrations harms plants and animals. A study by researchers at the University of California demonstrated that continuous exposure to as little as 0.3 ppm hydrogen sulfide can reduce growth and/or cause foliar

dam age in alfalfa, grapes, lettuce, ponderosa pine and Douglas fir, and reduce the sugar content in sugar beet roots. At 3 ppm, hydrogen sulfide causes defoliation in California buckeye and death of alfalfa plants. This study indicated that rapidly growing species suffered damage at lower concentrations than other species. 49

Hydrogen sulfide has been shown to impair growth and cause mortality at low concentrations in aquatic animals as well. Studies suggest its toxicity increases at lower oxygen

levels and higher pH. For example, the LC 50 for goldfish is 0.062 and 0.048 mg/L hydrogen sulfide at oxygen concentrations of 6 and 1.5 mg/L, respectively. 50 Furthermore, LC 50 s ranging from 0.057 mg/L to 0.0149 mg/L have been reported for fathead minnows at pH ran ging from 7.1

to 8.7. 51

Even exposure at sublethal levels may have deleterious effects on fish and aquatic72 invertebrates. While a concentration of 0.5 mg/L in channel catfish caused respiratory arrest, but a concentration of only 0.1 mg/L inhibits cyto chrome oxidase activity in the brain by 40 percent. 52
Smith et al. (1976) reported a 96

- hour LC 50 of 0.0243 mg/L for juvenile fathead minnow but found that chronic exposure at 0.004 mg/L reduced growth, survival and reproduction. 53 In bluegill fish, the maximum no

- effect concentration for chronic exposure was 0.0004 mg/L; 54 it has been reported that chronic exposure to hydrogen sulfide above this level decreases swimming

endurance in these fish. 55 Oseid and Smith (1978) found a 96

- hour LC 50 for mayfly ny mphs of the species Hexagenia limbata

– which live in water at the nymph stage

– of 0.165 mg/L, but chronic exposure at 0.0762 mg/L for 138 days caused 100% mortality. Furthermore, no subimagos emerged at concentrations above 0.0348 mg/L, a concentration about one fifth of the

LC 50

. 56 No

- effect concentrations for chronic exposure in some species may be as little as 8 percent of the 96

- hour LC 50

. 57

Sensitivity to the toxic effects of hydrogen sulfide varies by species and life stage. Of eight invertebrat e species tested by Smith et al. (1977), a mayfly of the genus Baetis was the most sensitive, with a 96

- hour LC 50 of 0.020 mg/L, a concentration fifty times lower than the LC 50 for the least sensitive invertebrate in the study, Assellus , which had an LC 50 of 1.07 mg/L. 58 This study also indicates that the lethal threshold concentration for different species of juvenile fish may differ by an order of magnitude. Juveniles of seven fish species were tested in the study for acute toxicity of hydrogen sulfide and the lethal threshold ranged from 0.0087 mg/L in rainbow trout to 0.0840 mg/L in goldfish. Higher sensitivity was observed in fry than in juvenile fish. 59
The same researchers state that hydrogen sulfide concentrations above 0.025 mg/L are associated with decreased size and survival of fish fry. 60

49 Thompson, CR, and Kats, G. 1978. Effects of continuous H2S fumigation on crop and forest plants. Environmental Science & Technology 12(5):550

- 3. 50 Adelman, I. R. and Smith LL Jr. 1972. Toxicity of hydrogen sulfide to goldfish carassius

- auratus as influenced by temperature oxygen and bioassay techniques. Journal of the Fisheries Research Board of Canada 29(9):1309

- 17. 51 Broderius S. J. Smith LL Jr. 1976 Effect of hydrogen sulfide on fish and inver tebrates Part II

. Hydrogen sulfide determination and relationship between pH and sulfide toxicity. Duluth, MN: U.S. Environmental Protection Agency,

Environmental Research Lab. EPA Document Number EPA

- 600/3

- 76

- 0626. 52 Torrans EL, Clemens HP. 1981. Hysiol ogical and biochemical effects of exposure to fish of hydrogen sulfide. Comparative Biochemistry and Physiology, Part C: Comparative Pharmacology 71(2):183

- 90. 53 Smith, L. L., Jr., Oseid, D. M., and Olson, L. E., Acute and chronic toxicity of hydrogen s ulfide to the fathead minnow, Pimephales promelas

. Environmental Science & Technology 10(6):565

- 568. 54 Smith LL Jr., Oseid DM, Adelman IR, Broderius SJ. 1977. Effects of hydrogen sulfide on fish and invertebrates. Part 1, Acute and Chronic Toxicity Stud ies. EPA Document Number 600/3

- 76

- 062.55 Oseid D. and Smith LL Jr. (1972) Swimming endurance and resistance to copper and malathion of bluegills treated by longterm exposure to sublethal levels of hydrogen sulfide. Transactions of the American Fisheries S ociety 101:620

- 5. 56 Oseid D. M., and Smith LL Jr 1975. Long

- term effects of hydrogen sulphide on Hexagenia limbata (Ephemeroptera). Environmental Entomology 4: 15

- 18. 57 Oseid D. and Smith LL Jr. 1974. Factors influencing acute toxicity estimates of h ydrogen sulfide to freshwater

invetrtebrates. Water Research 8(10):739

- 46. 58 Smith LL Jr, Oseid DM, Adelman IR, Broderius SJ. 1977. Effects of hydrogen sulfide on fish and invertebrates. Part 1, Acute and Chronic Toxicity Studies. EPA Document Number 60 0/3

- 76

- 062.

59 Id

. 60 Smith LL Jr, Osied DM. 1972. Effects of hydrogen sulfide on fish eggs and fry. Water Research 6(6):711

- 20.

EPA Response: The commenter has provided a summary of the ecological h azards of hydrogen sulfide, some of which is the s ame as in EPA’s own assessment and others are additional studies.73 EPA believes the information supports EPA’s conclusion that the administrative stay of the reporting requirements for hydrogen sulfide should be lifted.

Comment:

V. Regulation of hydrogen sulfide under other statutes

In light of the scientific evidence on the damage hydrogen sulfide can do to both the environment and human health, it is not surprising that hydrogen sulfide is regulated outside of the TRI program. At the federal level, EPA regulates hydrogen sulfide under the accidental release provisions of section 112(r) of the Clean Air Act, but a number of environmental groups have recently petitioned EPA to regulate the chemical under section 112(b), as a hazardous air pollutant (“HAP” ) as well. Similar to the TRI reporting requirements, environmental groups petitioned EPA 11 years ago to list hydrogen sulfide as HAP, and EPA never acted on the petition. In March of 2009, these same groups renewed their petition, again asking EPA to

reg ulate hydrogen sulfide not only under section 112(r) but also under 112(b). 61 As pointed out in the letter, 34 states have ambient air standards that address hydrogen sulfide, yet still these standards do not fully protect citizens from potential exposure to dangerously high levels of this gas. On another front, environmental groups filed a petition in September of 2009 to regulate Concentrated Animal Feeding Operations (“CAFOs”) through New Source Performance Standards (“NSPS”) for greenhouse gases and est ablish emissions limits for gases such as hydrogen sulfide. 62 This suite of regulatory petitions and state standards speak to the importance of EPA lifting the administrative stay for TRI reporting. Hydrogen sulfide is a chemical of great

concern in a var iety of industrial settings, and better information on emissions from the TRI list will aid in crafting and strengthening both existing and new regulations.

61 Letter from Sierra Club, ET AL. to Lisa Jackson, Administrator, U.S. EPA (March 30, 2009) ava ilable at http://www.earthworksaction.org/pubs/H2SLetterToEPA.pdf (last visited Apr. 29, 2010).

62 Humane Society, ET AL., Petition to List Concentrated Animal Feeding Operations under Clean Air Act Section 111(B)(1)(A) of the Clean Air Act, and to promu lgate standards of performance under Clean Air Act Sections 111(B)(1)(B) and 111(d) (Sept. 21, 2009) available at http://www.foe.org/sites/default/files/HSUS_et_al_v_EPA_CAFO_CAA_Petition.pdf (last visited Apr. 29, 2010)

EPA Response: EPA will respond t o the commenter’s cited requests for regulation und er other programs at the appropriate time and through the processes established for those other programs.

Comment:

VI. Environmental Justice Concerns

As noted above, hydrogen sulfide is emitted by a n umber of different industries in significant amounts. As is true of most industrial emissions, communities living near industrial sources such as refineries, paper mills, and sewage treatment plants that emit large amounts of hydrogen sulfide, are disprop ortionately affected by the neurotoxic and respiratory problems associated with exposure to the gas. In light of this, environmental justice concerns with the continually unreported emissions of hydrogen sulfide are especially grave. Without access to

in formation on emissions from facilities near environmental justice communities, these communities cannot protect themselves and are denied knowledge about the air they are74 breathing. Moreover, continued research of hydrogen sulfide and its health effects a nd advocacy for regulation will also be significantly impaired.

EPA Response: While not a statutory criteria for listing, environmental justice concerns are an important consideration. By lifting the stay of the EPCRA section 313 reporting requirements for hydrogen sulfide, EPA would be providing communities across the United States (including minority populations and low income populations) with access to data which they may use to seek lower exposures and consequently reductions in chemical risks for t hemselves and their children. This information can also be used by government agencies and others to identify potential problems, set priorities, and take appropriate steps to reduce any potential risks to human health and the environment. Therefore, the i nformational benefits of lifting the stay will have a positive impact on the human health and environmental impacts of minority populations, low

- income populations, and children.

Comment:

VII. Conclusion

We commend EPA on its decision to take long

- ov erdue action lifting the administrative stay of reporting requirements for hydrogen sulfide under EPCRA’s TRI program. For the past 16 years, while emissions of this gas have gone unreported, the science has continued to develop. The danger that emissions pose to human health are clear, and there is no legal justification for continuing the stay. Not only was the stay inappropriate when issued, but now, industries who would have had to report their emissions have had 16 years to prepare for these requiremen ts, diminishing any claim of burdens to industry. With the support of both science and the law, EPA must now require that emissions of hydrogen sulfide be reported under the EPCRA TRI program. Particularly sensitive environmental justice communities living near industrial facilities emitting large amounts of potentially toxic hydrogen sulfide gas should have access to information on the air they are breathing. Reporting requirements will facilitate regulatory action with respect to emissions of hydrogen sul fide, and protect public health.

EPA Response: EPA appreciates the commenter’s support for lifting the stay of the EPCRA section 313 reporting requirements for hydrogen sulfide.75 Commenter: Mary Ann Johnson [ EPA

- HQ

- TRI

- 2009

- 0844

- 0089]

Mary Johnson <fra zledgrams59@yahoo.c

om>

05/12/2010 03:44 PM To Docket OEI@EPA

cc

bcc

Subject H2S reporting

I am writing in response to Docket ID # EPA

- HQ

- TRI

- 2009

- 0844. I feel that the public has the right to know when poison gases are being released into the air that we breathe. Those poisons should be controlled. It is very cheep for the gas companies to treat the wells that have H2S emissions. They should be required to treat those wells frequently so that no poison is emitted

into the air. Sincerely

M ary Ann Johnson

EPA Response: EPA appreciates the commenter’s support of the lifting of the administrative stay of the EPCRA section 313 reporting requirements for hydrogen sulfide.76 Commenter: National Association of Clean Water Agencies [ EPA

- HQ

- TRI

- 2009

- 0844

- 0090]

May 12, 2010

Office of Environmental Information Docket U.S. Environmental Protection Agency 1200 Pennsylvania Ave, NW Washington, DC 20460

Via Email: oei.docket@epa.gov

Re: Docket ID No. E PA

- HQ

- TRI

- 2009

- 0844

The National Association of Clean Water Agencies (NACWA) appreciates the opportunity to comment on EPA’s notice of Intent to Consider Lifting the Administrative Stay of the Emergency Planning and Community Right

- to

- Know Act (EPCRA) se ction 313 toxic chemical release reporting requirements for hydrogen sulfide. NACWA represents the interests of nearly 300 publicly owned wastewater treatment agencies nationwide, serving the majority of the sewered population in the U.S. Hydrogen sulfide is a concern for publicly owned treatment works (POTWs) since it can be emitted during the wastewater treatment processes and from the collection systems that convey wastewater to the treatment plant.

NACWA is not commenting on the science behind EPA’s c onclusions that support lifting the Administrative Stay of the Toxics Release Inventory (TRI) reporting requirements for hydrogen

sulfide. NACWA is concerned, however, that EPA may decide to add hydrogen sulfide to the Clean Air Act section 112(b) Hazardou s Air Pollutants (HAPs) list after it is added to the TRI list. This action could have a significant effect on POTWs. Depending on the size of the POTW, the extent of its tributary collection system, and the other characteristics of the wastewater flow,

a POTW could be classified as a major source of hydrogen sulfide. This could lead to maximum achievable control technology (MACT) requirements, which could require POTWs to cover portions of their treatment plants, address emissions from hundreds of miles of conveyance system piping, and potentially capture and treat emissions.

NACWA was heavily involved in the seven years of negotiations that resulted in the Subpart VVV POTW MACT standards. During that time, NACWA raised concerns about the feasibility

of c ontrolling hydrogen sulfide in widespread collection systems over which POTWs have little or no control. NACWA remains very concerned about the feasibility of these potential requirements for hydrogen sulfide controls.

If EPA lifts the Administrative Sta y on reporting requirements for hydrogen sulfide, NACWA recommends that the Agency carefully consider the consequences of any future regulations for hydrogen sulfide. In particular, EPA should consider the potential burden on POTWs of complying with the MA CT standard if hydrogen sulfide is listed as a HAP under section 112(b)

of the CAA.77 Thank you for consideration of our comments. Please contact me at 202/296 9836 or cfinley@nacwa.org if you have any questions.

Sincerely,

Cynthia A. Finley Director, Re gulatory Affairs

EPA Response: Whether or not EPA takes any action on the listing of hydrogen sulfide as a hazardous air pollutant (HAP) is unrelated to EPA’s lifting of the stay of the EPCRA section 313 reporting requirements for hydrogen sulfide. If any action is taken by EPA regarding the listing of hydrogen sulfide as a HAP, the commenter will have the opportunity to comment separately on any such action.78 Commenter: Linda K. Phillips, Ph.D. [ EPA

- HQ

- TRI

- 2009

- 0844

- 0092]

Linda Phillips <lindakp5@cox .net>

05/13/2010 02:58 AM To Docket OEI@EPA

cc

bcc

Subject Docket ID No. EPA

- HQ

- TRI

- 2009

- 0844; FRL

- 9119

- 2

The website for submitting comments would not accept mine because it operates on Eastern Time. However, in California it is still May 12. I hope you'll accept my brief comment, attached in Word, and pasted below.

Linda Phillips

Re: Lifting of administrative stay of reporting of hydrogen sulfide under TRI Section 313

Docket ID No. EPA

- HQ

- TRI

- 2009

- 0844; FRL

- 9119

- 2

I have just learned of this proposal, and strongly support it. Because of the late date, these remarks will be brief. But I am stunned that for 15 years, H 2 S has not been reported under

EPCRA

- even though it is properly on the TRI lists as an Extremely Hazardous Substance (E HS). My understanding is that the administrative stay was due to an objection from the regulated community involving some the chronic toxicity of hydrogen sulfide. This issue should have been resolved long ago.

But a compelling reason for listing in Secti on 313 is the acute toxicity in a release. Hydrogen sulfide is unquestionably an acutely hazardous material, with the added danger of olfactory fatigue. At high concentrations, when it is most dangerous, its odor quickly becomes

undetectable. The acute tox icity should have been sufficient to require that reporting requirements be reinstated.

Having served on the California Region I LEPC since 1987, and living in an area where oil and gas production frequently involves "sour gas"

- for several years my home was downwind from such a facility

- I feel very strongly that hydrogen sulfide should be reported under Section 313.

Please lift the administrative stay. This action is long overdue.

Linda K. Phillips, Ph.D. Santa Barbara, CA

EPA Response: EPA appr eciates the commenter’s support of the lifting of the administrative stay of the EPCRA section 313 reporting requirements for hydrogen sulfide.79 Commenter: American Meat Institute [ EPA

- HQ

- TRI

- 2009

- 0844

- 0093 ]

May 13, 2010

Administrator Lisa Jackson

U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, DC 20460

Re: American Meat Institute Comments on the “ Hydrogen Sulfide; Community Right

- to

Know Toxic Chemical Release Reporting ,” Docket # EPA

– HQ

– TRI

–

2009

– 0844.

Dear Administra tor Jackson:

The American Meat Institute (AMI) is pleased to submit these comments regarding the Environmental Protection Agency’s (EPA or the Agency) Hydrogen Sulfide; Community Right

to

- Know Toxic Chemical Release Reporting published in the Federal Regi ster on February 26, 2010. AMI is the nation’s oldest and largest trade association representing packers and further processors of beef, pork, lamb, veal, turkey, and processed meat products. AMI represents a large number of meat packing and processing f acilities nationwide. A number of these facilities

have on

- site rendering and wastewater treatment capabilities that may have fugitive releases of hydrogen sulfide. We are submitting these comments because EPA’s proposal to lift the administrative stay o f the Emergency Planning and Community Right to Know Act (EPCRA) section 313 toxic chemical release reporting requirements for hydrogen sulfide will negatively

affect our members.

The National Renderers Association also submitted comments on EPA’s propose d action, and AMI agrees with those comments. We emphasize the following mutual points of concern regarding EPA’s proposed action.

Hydrogen sulfide is a naturally occurring gas associated with the anaerobic bacterial decay of organic matter. In our memb ers’ plants hydrogen sulfide is released primarily in rendering and waste treatment processes. The releases are fugitive, can be widespread and are in concentrations that are irregular and inconsistent.

Nevertheless, to comply with EPCRA Section 313, our members will have to estimate their releases to determine if the reporting thresholds are met. Because of the ephemeral nature of the releases, however, standard field and even more sophisticated laboratory grade measurement devices are inadequate and unreliable. The releases disperse rapidly, resulting in concentrations below the measurement capability of some devices and, regardless of the measurement device, the measurements are not easily replicated. Meat packing and processing plants do not have a reliable method for determining compliance. We, therefore, have significant concerns regarding how to implement EPCRA with respect to hydrogen sulfide and contend EPA should consider such practical issues before lifting the stay.

AMI appreciates the o pportunity to provide these comments and would be pleased to discuss80 these matters with you further at your convenience.

Sincerely,

Ashley B. Peterson, Ph.D. Director, Regulatory Affair

EPA Response: The ability of any one particular in dustry to be able to report releases is not a factor in determining whether a chemical meets the EPCRA section 313 listing criteria. I t is well known that hydrogen sulfide is a byproduct of the rendering process (1). EPA has published

emission factors fo r at least one stage of the rendering process (2). The commenter believes that reporting would be difficult for hydrogen sulfide, yet the National Renderers Association provided an estimate of 400 pounds of releases per year, thus it appears that these fa cilities could make at least a reasonable estimate of releases as required under EPCRA section 313. EPA notes that rendering plants as well as meat packing and processing plants must already report their release of ammonia, another gas that is also likely to have variations in production and release as it is also produced from the decay of organic matter. While EPA would like to collect the most accurate information possible, EPCRA section 313 only requires that facilities report a

reasonable estimate of releases. EPA sees no reason why meat packing and processing plants should not be able to make at least reasonable estimates of the amounts of hydrogen sulfide

manufactured and released.

1. Emission Factor Documentation for AP

- 42 Section 9.5.3 Meat Rend ering Plants Final Report. prepared by Midwest Research Institute (MRI) for the Office of Air Quality Planning and Standards (OAQPS), U. S. Environmental Protection Agency (EPA), under EPA

Contract No. 68

- D2

- 0159. September 1995

.

2. AP 42, Fifth Edition , January 1995. Compilation of Air Pollutant Emission Factors, Volume I: Stationary Point and Area Sources. Chapter 9: Food and Agricultural Industries section 9.5.3 Meat Rendering Plants . Office of Air Quality Planning and Standards (OAQPS), Office of Ai r and Radiation, U. S. Environmental Protection Agency (EPA).81 Commenters : Citizens for Environmental Justice, Community In

- Powerment and Development Association, Northeast Ohio Gas Accountability Project, Sampson County

Concerned Citizens For A Safe Environment, Air Alliance Houston, Cook Inletkeeper, Protect All Children’s Environment, Sustainable Energy & Economic Development Coalition, Texas Campaign for the Environment, Working Effectively for Clean Air Now, Downwinders at Risk, Person County Peop le Rising In Defense of Ecology, Huron Environmental Activist League, Global Community Monitor, National Refinery Reform Campaign, National Bucket Brigade Coalition, Texas Oil and Gas Accountability Project, National Alliance for Drilling Reform, Wise Coun ty Alliance for Responsible Drilling, Groups Allied to Stop Pollution, OMB Watch, Sierra Club Lone Star Chapter, Environmental Integrity Project, Don’t Waste Arizona, EarthWorks, Oil & Gas Accountability Project, Citizens Against Environmental Destruction, Texas Environmental Justice Advocacy Services [ EPA

- HQ

- TRI

- 2009

- 0844

- 0094]

May 12, 2010

Administrator Lisa Jackson

Office of Environmental Information Docket U.S. Environmental Protection Agency

Mail Code 2822T 1200 Pennsylvania Avenue, N.W. Washing ton, D.C. 20460

Hydrogen Sulfide: Community Right

- to

- Know Chemical Release Reporting

Docket ID No. EPA

- HQ

- TRI

-- 2009

- 0844

Electronic: oei.docket@epa.gov

Dear Administrator Jackson:

Petroleum refinery communi ties and communities with other industrial sites with toxic hydrogen sulfide (H 2 S) gas emissions across the country, including the heavily impacted communities of Port Arthur, Texas; Baton Rouge, Louisiana; and Wilmington, California strongly urge the

Envi ronmental Protection Agency (EPA) to lift the administrative stay (August 24, 1994) of the Emergency Planning and Community Right

- to

- Act (EPCRA) section 313 toxic chemical release reporting requirements and require the reporting of H 2 S in the annual Toxic Release Reporting (TRI) system (FR 75:38:8889

- 94, February 26, 2010). The EPA administrator needs to correct the egregious situation since 1994 of non

- TRI reporting for the substance H 2 S because H 2 S is probably the most common toxic substance excluded fro m the TRI and is not listed in annual plant TRI reports for large industrial facilities that emit it every year into thousands of neighborhoods. The oil and gas industry has long opposed H 2 S reporting so as to attempt to deceive the public about the serio usness of H 2 S emissions from their industrial operations.

Many of our residents and their children already are exposed to far more toxic H 2 S air pollution than they should be, and suffer from elevated rates of chronic respiratory effects, chronic

neuroto xic effects, and other devastating adverse health effects as a result. Greatly exacerbating this problem are thousands of commercial and industrial facilities that release H 2 S gas

—82 including oil refineries, paper mills, carbon black plants, chemical plan ts, natural gas processing plants, crude oil pipelines, sewage treatment plants, and others

— at facilities that operate right next to our homes, schools, daycare centers, playgrounds, clinics, hospitals, and churches.

H 2 S TRI reporting is a critical ste p toward documenting the seriousness of exposure to this highly toxic substance in impacted communities. A community group letter dated March 30,

2009 was sent to the EPA administrator that documented that H 2 S is a highly toxic chemical yet

under the Clea n Air Act is an undesignated hazardous air pollutant under Section 112b. The March 30, 2009 letter, attached, supports the need for EPA to require the annual TRI reporting

of H 2 S. This will help provide communities with more detailed information on the e stimated gaseous emissions from local industrial facilities and help them seek lower H 2 S emissions and additional safety measures than currently exist.

TRI reporting is critical to obtain better information on emissions and potential impacts. We

assert that EPA must act to address adverse H 2 S impacts based on evidence of harmful exposures in numerous communities. H 2 S has toxicological effects at low concentrations and there is emerging evidence that H 2 S is a genotoxic agent, meaning it damages DNA. H 2 S is clearly an unreported toxic air pollutant and unlisted hazardous air pollutant (HAP).

H 2 S, well known to cause death at high concentrations and respiratory

- brain

- nervous system effects at lower levels, also escaped addition to the original list of 188 HAPs in 1990 due to opposition from the oil and gas industry, despite the EPA’s attempts to include it. Back in January 1999, strong public support to add H 2 S to Title III of federally recognized air toxics occurred when 145 public health, environmental and community groups in 32 states sent a request to EPA based on scientific studies suggesting chronic, low

- level exposures cause permanent damage to the brain and central nervous system. Indeed, new toxicological evidence

reveals H 2 S can cause neuron dea th in the brain and serves as a solid regulatory basis that H 2 S is far worse than just a stinky chemical triggering bad headaches, nausea and discomfort at

citizens’ home environment. The oil and gas industry has downplayed for decades the toxic

effects o f smelly H 2 S emissions when citizens have to breathe horrible, nauseating rotten egg

odors. Industry officials allege it’s little more than a foul smelling odor with no harmful effects

at sublethal low concentrations. Citizens who wrote to EPA in January 1999 and March 2009 are still waiting for the agency to take action on this highly toxic substance.

Hydrogen sulfide releases in 2008 reported to the National Response Center

Every year the National Response Center (NRC) receives reports of toxic chem ical spills and

releases across the nation. Reports of H 2 S releases are included among the thousands filed with the NRC each year and are an indication of how widespread H 2 S releases are known to be. In 2008 alone, industrial facilities reported H 2 S rele ases during 383 emergency events totaling an estimated 73,400 pounds and averaging nearly 200 pounds per event. The quantities of H 2 S released are primarily estimates of fugitive leaks from equipment failures and other process problems. Actual measuremen ts are often lacking and the precise volumes of H 2 S released unavailable; therefore the actual releases of H 2 S may have been higher. Due to the health concerns about toxicity in the local communities, more precise monitoring of the H 2 S releases is

needed at all industrial sites to provide more accurate data on the seriousness of H 2 S emissions.83 Oil refineries were responsible for the largest number of H 2 S gas emergency releases and the largest volume of H 2 S gas released in 2008. Oil refineries reported m ore than 330 (nearly 87%)

H 2 S release incidents in the 2008 NRC report and refineries accounted for 65,978 pounds (nearly 90%) of H 2 S gas reportedly released to the NRC. Oil refineries reported H 2 S releases slightly higher on average (close to 200 pounds) than the other non

- refinery sites. Miscellaneous facilities reported the remaining 10% in 53 incidents and a total of 7,422 pounds; these facilities had an average H 2 S release of 140 pounds or 30% less than the average refinery release at nearly 200 poun ds. Oil and gas exploration and production facilities, which are

known to release H 2 S at harmful levels, are not even included in these numbers because they are not required to report to the TRI.

The 383 H 2 S emergency release events reported to the NRC in 2008 may only account for a fraction of the actual releases occurring. Thousands of non

- reportable releases may occur each year if the H 2 S volume is less than the reportable minimum quantity, according to plant estimation methods and monitoring gaps, o r if a facility is not aware of multiple small fugitive gas leaks occurring in their equipment and process units. Routine H 2 S fugitive equipment monitoring is not required. H 2 S is an extremely corrosive agent that aggressively attacks and eats through met al piping and crude oil tanks

.

Gap in H2S TRI reporting from tens of thousands of Sour Oil and Gas Wells

Tens of thousands of oil and gas wells in the U.S. contain noxious and lethal levels of H 2 S gas, but communities lack the right

- to

- know about the e missions from oil and gas wells. One concern about the TRI reporting system is a major gap that tens of thousands of sour (H 2 S) oil and gas wells throughout the nation are not required to submit TRI reports for their toxic environmental releases, includin g but not limited to H 2 S gas emissions. The EPA needs to address this TRI reporting gap and provide the public with more information on the toxic releases from oil and gas wells and related facilities that currently do not have to file reports.

Sour oil a nd gas wells can release significant amounts of H 2 S gas into local communities and

cause adverse health effects. While sour natural gas processing plants and related plants would have to report H 2 S TRI releases, sour oil and gas wells and thousands of sma ll crude oil tanks will be exempted from submitting H 2 S TRI reports. Cumulatively, this could be a very large

amount of H 2 S.

The emissions of H 2 S gas poses a serious health issue for rural and urban residents living near oil and gas fields and better re porting would lead to acknowledging the need for solutions other than venting large volumes of sour gas with H 2 S in it. In 1992 while working as a regional investigator for the Texas Air Control Board (now part of Texas Commission on Environmental Quality ), I investigated the air pollution complaint of a family complaining of constant sour gas emissions from several thousand oil wells operated by twelve major oil companies in the area of Forsan, Texas (immediately south of Big Spring in Howard County). Nu merous H 2 S ambient air samples were collected along the state highway and other public areas. I n nearly all cases, the samples were found to exceed the Texas state standard of 80 parts per billion averaged over thirty

- minutes. Normally the state air agen cy did not investigate H 2 S emissions from sour oil wells, but in this instance with clear evidence of H 2 S levels exceeding the state standard in public areas and a family complaining of adverse health effects, the agency decided to issue violations84 to all twelve oil companies and require them to stop the venting of H 2 S gas at the wellheads. Each company developed a plan to quickly reduce the H 2 S venting. Within a matter of weeks, once the sour gas was collected from the oil wells and sent to a natural gas processing plant by pipeline for treatment (or temporarily flared), the H 2 S levels decreased sharply in the area to below the Texas ambient air quality standard. The complainant family reported that the H 2 S levels were barely noticeable and their two chi ldren no longer were experiencing serious headaches at home and on the way to school.

Estimates indicate that 15 to 25 percent of all natural gas wells in the U.S. may contain H 2 S. In December, 2005, the Bureau of Land Management reported that there wer e more than 375 reports of wells with H 2 S in the San Juan Basin of New Mexico and Colorado. Since then, many more wells have been drilled.

A survey of accidental and Intentional H 2 S releases from natural gas wells and associate facilities causing evacua tions and/or injury in Michigan’s Manistee and Mason Counties from

1980 to 2002 found 70 H 2 S releases in only a 30

- mile stretch of the Lake Michigan coast.

Intentional and accidental releases in the Survey have led to emergency hospital treatment of

more than 50 victims, including children, as well as numerous evacuations of business and residential areas exceeding 100 persons on one occasion. More have received emergency treatment at the scenes of exposure. Many others have refused medical treatment bec ause they cannot afford hospital bills. Some victims have been forced to permanently abandon their

homes and businesses.

Environmental justice and hydrogen sulfide exposure: Petroleum refineries example

We want to impress upon EPA its obligation to ful ly comply with and enforce Title VI of the Civil Rights Act of 1964, together with President Clinton’s February 11, 1994, Executive Order No. 12898 concerning the need for EPA to act on the environmental injustice in hundreds of communities impacted by H 2 S emissions.

We urge EPA to seriously consider that the H 2 S exposures in affected communities near major oil refineries, as one example, often create a disproportionate air toxics burden for people of

color and low

- income populations. Residents in the ne ighborhoods close to one of the largest

H 2 S industrial categories, the one hundred and forty oil refineries in the US, are often low

income areas. A preliminary survey shows in leading petroleum refining areas in EPA regions (2, 3, 4, 5, 6, 9, 10), a majo rity of residents in the refinery neighborhoods are people of color. Environmental justice is a grave need and major issue for dozens of oil refinery communities in Texas, Louisiana, California, Illinois, Pennsylvania, New Jersey, Indiana, Ohio, Kentucky

, Alabama, Tennessee, Michigan, and Mississippi, which contain the bulk of the nation’s refineries, and where we stress that residents in refinery communities are disproportionately poor people of color. But besides the petroleum refining sector, several other industrial source categories are located in communities where people of color disproportionately reside.

An example of repeated serious H 2 S air pollution is a major Houston refinery reporting to the Texas Commission on Environmental Quality that it released over 1,700 pounds of H 2 S into the air during major upset incidents over several years, and the H 2 S releases are a key reason why85 local residents often complained about noxious rotten egg odors. Yet few H 2 S violations were issued by the state air pollution control agency and no nuisance odor conditions were confirmed by its investigators despite the exceptionally large releases of rotten egg gas and many public odor complaints. This Houston oil refinery reported H 2 S releases as low as 1 pound and up to 235 pounds (#) including 18#, 20#, 27#, 37#, 68#, 74#, 155#, 159#, 235# and 305#. However,

these H 2 S volumes were self

- reported engineering estimates based on flare combustion efficiency calculations that assume 98% destruction was achieved and not based on actual H 2 S monitoring. If refinery flares were not achieving 98% destruction which is highly likely, H 2 S releases may have been significantly higher than the estimated 1,700 pounds.

EPA has recently acknowledged the need for improving flare co mbustion efficiency and the

need for real

- time emissions monitoring from flares, since no emissions monitoring system is currently required for refinery flares. Emergency flares are a huge community health concern since they routinely smoke badly for hour s at a time, indicating combustion efficiency is not likely to be close to 98% destruction.

Regulatory agencies, in some cases, tend to view residents living too close to industrial facilities as living in “industrial areas” where air pollution is bound to be a problem and suggest these people move away if they don’t like the poor air quality. Basically these “industrial areas” are sacrifice zones and regulatory agencies seem too often willing to ignore the outcry from residents

in these “industrial area s” as not as important as the views of the industrial companies.

U.S. oil refineries are importing sour crude oils with higher sulfur levels (andhigher H 2 S) than crude oils currently being used and a potential for worse H 2 S community impacts along pipeli ne routes and around the oil refineries. U.S. refineries have been seeking permit modifications at large plants to process higher sulfur crude oils from Venezuela, Mexico and now Canada (Alberta tar sands heavy crude oil). A powerful risk in higher sulfu r in the Alberta tar sands heavy crude oil is an increased lethality hazard of higher H 2 S concentrations. Tar sands sulfur % is at least 4.4% and higher according to 2007 U.S. Geological Survey report (33) and it may contain 44,000 ppm of hydrogen sulfide when H 2 S is deadly at 500

- 900 ppm. Susceptible persons with vulnerable health conditions such as heart and/or lung ailments, including thousands of senior citizens, may die at only 50 ppm H 2 S levels, since lower H 2 S levels can more easily poison their c omprised hearts and lungs. There is great concern for infants who may succumb at even lower H 2 S concentrations of 5

- 10 ppm exposures due to their uniquely vulnerable developing physiology, brain and nervous system. Higher sulfur crude oil is viewed by th e oil industry as higher H 2 S concentrations to deal with and control.

Three public health concerns result from higher H2S content in Canadian tar sands heavy

crude oil

1. Lethal hydrogen sulfide levels may reach 90 times over the minimum instant kill

c oncentrations. H 2 S is extremely dangerous being instantly lethal at 0.050%

- 0.090% concentrations (500

- 900 ppm). Pipeline breaks and leaks of crude oil with higher H 2 S gas concentrations pose a significantly higher risk to public health and the environme nt compared to

crude oil with lower sulfur and lower H 2 S gas levels.86 2. Increased chronic hydrogen sulfide exposure potential in affected communities. Pipelines and refineries handling higher sulfur crude with more H 2 S will mean more serious community

e xposures to sublethal concentrations and related health effects.

3. Corrosive acid gas. H 2 S is extremely corrosive and causes steel to experience sulfide stress cracking (SCC). H 2 S is called an “acid gas” because it’s extremely acidic and eats through so lid steel leaving holes in tanks, pipes and processing equipment. The extreme corrosivity of higher

H 2 S in the Canadian tar sands heavy crude oil increases the potential for serious leaks and accidents from pipelines and increases the health hazards if ac cidental leaks occur. The presence

of H 2 S, a corrosive material, is of particular concern when it is also in the presence of other corrosive agents such as CO2 +water, chlorides

— which cause chloride stress cracking (CSC), and oxygen (O2) which causes rust ing of steels and other materials. Such combination requires particular care in the selection of materials to resist such combined corrosion and adequately

contain the H 2 S.

EPA needs an accurate national emissions inventory (EI) for hydrogen sulfide gas

The EPA Office of Air Quality Planning & Standards has estimated H 2 S national emissions at more than 56,700 tons, but does not include sources such as CAFOs, municipal waste landfills, and sugar beet manufacturing. EPA needs a more accurate national EI for hydrogen sulfide gas from major industrial facilities, minor sources and exempted sources such as oil & gas wells.

The national number of sites with H 2 S will be enormous since oil & gas wells number in the tens

of thousands alone. The California Air Resources Board provided a 1999 EI for H 2 S in California of 5,688,172 pounds, an indication of the large

- scale H 2 S volume. ( http://www.oehha.org/air/chronic_rels/pdf/7783064.pdf )

Near ly 200 Texas major industrial plants estimated H 2 S releases at 7,187,988.4 pounds (3,594 tons) in 1997, according to state EI records at the Texas Commission on Environmental Quality, not including landfills, CAFOs, oil & gas wells, small crude oil storage tanks, and many other minor facilities. That added 3,594 tons (3.3%) to the ~108,000 tons of air toxics emitted by Texas plants in 1997. Despite the need for a better national emissions inventory of

H 2 S from potential sources, the EPA recognizes that H 2 S is a poorly regulated air pollutant with significant nationwide emissions estimated at more than 110 millions pounds annually. It is certainly ranks among the worst regulated air toxics.

Conclusion

Public health scientists have recognized for over a decade that hydrogen sulfide is a potent neurotoxin, and chronic exposure to low ambient levels causes irreversible damage to the brain and central nervous system. Ultra

- low levels of H 2 S down to 25 ppb have been associated with acute exposure causing ey e irritation in community settings in the United States, Europe and

New Zealand. Now emerging scientific evidence supports H 2 S as a cause of neuron death, confirming findings by Kaye Kilburn of irreversible brain damage. The latest scientific findings

su ggests H 2 S causes DNA damage as a genotoxic agent, which EPA can no longer ignore. The potential carcinogenic implications of H 2 S demand that EPA act to protect public health.87 Children are among the most susceptible to this poison gas, and EPA needs to do a more effective job of protecting schoolchildren from H 2 S impacts. Today, it is unacceptable for communities to have to continue suffering the ill effects of H 2 S when the technology to monitor

and control H 2 S emissions exists. As EPA has learned in t he last four decades, environmental injustice is a significant fact of life for thousands of communities in this nation and these residents all have a right to clean, safe air.

EPA needs to require annual reporting of H 2 S as a toxic substance under the T oxic Release Inventory (TRI) reporting program, since H 2 S is not reported due to an administrative stay issued August 22, 1994 evidently under a legal threat by the American Petroleum Institute. It’s extraordinary that industry has delayed reporting of H 2 S for twenty years. EPA needs a TRI reporting threshold of 1.0 pound for H 2 S , not 10,000 pounds as was originally the requirement. We request that EPA immediately lift the administrative stay on H 2 S and require TRI reporting in the next TRI submission cycle. The TRI data would also help EPA compile more accurate

H 2 S data and help EPA decide how best to regulate and reduce H 2 S emissions.

Respectfully yours,

Neil J. Carman, Ph.D.

Sierra Club’s Clean Air Team and the Lone Star Chapter of the Sierra Club Former regional investigator with Texas Commission on Environmental Quality 1202 San Antonio street Austin, Texas 78701 Tel 512

- 472

- 1767

Suzie Canales Citizens for Environmental Justice Corpus Christi , Texas Eric Schaeffer Environmental Integrity Project Washington, D.C. Matthew Tejada, Ph.D. Houston Air Alliance Houston, Texas Becky Bornhorst Downwinders At Risk Midlothian, Texas Mike Eisenfeld San Juan Citizens Alliance Farmington, New Mexico

Ja ime Chimner Citizens Against Environmental Destruction Northern Michigan Steve Brittle Don’t Waste Arizona Phoenix, Arizona Bob Shavelson Cook Inletkeeper Homer, Alaska Shirley J. McNall Impacted citizen Aztec, New Mexico Tammy Cromer Campbell Working Effectively for Clean Air Now Longview, Texas Pat Hill Person County People Rising In Defense of Ecology North Carolina Sharon Hill Texas Oil and Gas Accountability Project Dish, Texas Sharon Wilson National Alliance for Drilling Reform, and Wise County Alliance for Responsible Drilling Decatur, TX Hilton Kelly Community In

- Powerment and Development Association Port Arthur, Texas Gwen Lachelt EARTHWORKS’, and Oil & Gas Accountability Project, Durango, Colorado Denny Larson Global Community Monitor, Nat ional Refinery Reform Campaign & National Bucket Brigade Coalition Oakland, California Lorrie Cotterill Groups Allied to Stop Pollution Wilmer, Texas Karen Hadden Sustainable Energy & Economic Development Coalition Austin, Texas

Kari Matsko Northeast Oh io Gas Accountability Project Mentor, Ohio Bill Freese Huron Environmental Activist League Alpena, Michigan E.M.T. O’NanProtect All Children’s Environment Marion, North Carolina88 Areatha Troublefield Sampson County Concerned Citizens for a Safe Environme nt North

Carolina Robin Schneider Texas Campaign for the Environment Austin, Texas Brian Turnbaugh OMB Watch Washington, D.C. Juan Parras Texas Environmental Justice Advocacy Services Houston, Texas

E PA Response: EPA appreciates the commenter’s support of the lifting of the administrative stay of the EPCRA section 313 reporting requirements for hydrogen sulfide

.

With regard to the comments about adding industrial sectors such as oil and gas wells and

related facilities that current ly do not have to file reports under EPCRA section 313 , EPA is currently evaluating additional industry sectors for possible addition.

Concerning environmental justice issues, w hile not a statutory criteria for listin g a chemical under EPCRA section 313

, they can be an important consideration. By lifting the stay of the EPCRA section 313 reporting requirements for hydrogen sulfide, EPA would be providing communities across the United States (including minority populat ions and low income populations) with access to data which they may use to seek lower exposures and consequently

reductions in chemical risks for themselves and their children. This information can also be used by government agencies and others to identify potential problems, set priorities, and take appropriate steps to reduce any potential risks to human health and the environment. Therefore, the informational benefits of lifting the stay will have a positive impact on the human health and

environmental i mpacts of minority populations, low

- income populations, and children.

Regarding the commenter’s suggestion that EPA should lower the EPCRA section 313 reporting threshold for hydrogen sulfide to 1 pound, the commenter did not provide a basis for

such a t hreshold change. EPA is not aware of any particular reason that the reporting threshold for hydrogen sulfide should be lowered and thus has no plans at this time to address the issue.