Bergeson & Campbell, P.C.

Bergeson & Campbell, P.C.

EAP seeks to lift stay

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Courtesy of Bergeson & Campbell, P.C.

Earlier this year, the U.S. Environmental Protection Agency (EPA) proposed lifting its 1994 administrative stay of Emergency Planning and Community Right-to-Know Act (EPCRA) Section 313 reporting requirements for hydrogen sulfide (H2S). Following is an explanation of why some are concerned, why EPA proposed lifting the stay, and why reporting may be unnecessary in the first place.

How It All Began

EPA added H2S to the Toxics Release Inventory (TRI) reporting list on December 1, 1993, (58 Fed. Reg. 63500) in response to a 1992 petition filed by the Natural Resources Defense Council and others. The agency concluded that H2S met EPCRA Section  313(d)(2)(B) criteria for cancer or other chronic human toxicity and EPCRA Section 313(d)(2)(C) criteria for environmental

EPA announced an administrative stay of TRI reporting requirements for H2S on August 22, 1994. EPA then deferred reporting requirements to review 'new data' and information made available after the rule was issued.

Industry stakeholders claimed that the basis for listing H2S was flawed, and violated the Administrative Procedure Act (APA). In proposing to list H2S, EPA cited chronic human toxic effects, specifically respiratory effects. However, that was based on observed neurotoxic effects. Several industry groups threatened to sue EPA if no stay was granted. EPA then stated it would review the new information and make its results available for public comment.

Lifting The Stay?

EPA first considered lifting the stay (75 Fed. Reg. 8889) on February 26. Curiously, EPA stated that it 'is not revisiting the original listing decision …' EPA nonetheless provided a detailed rationale determining that the second and third criteria in EPCRA Section 313(d)(2) have been met. It carefully noted differences between that rationale and explanations that it originally gave to list H2S.

EPA also added some 55 new documents to the record, all of which were available for public review for the first time on February 26. EPA provided a very short comment period given the large number of documents. Stakeholders asked for and received an additional 15 days to comment.

Some say that EPA cannot properly lift the stay, or impose any new reporting requirements for H2S, until after it makes a new determination based on statutory listing criteria in EPCRA Section 313(d)(2) and the best current scientific data. Nor, some argue, can EPA lawfully limit public comment on whether the stay should be lifted. Rather, EPA must afford a full opportunity for comment on any determination it may make that it's appropriate to reaffirm the prior H2S listing determination.

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