Hydrogen Sulfide Regulation and Enforcement: The Awakening of a Sleeping Giant

Lynn L. Bergeson
Robin J. Schoeps

Hydrogen sulfide, H₂S, is a chemical compound that is receiving considerable regulatory review. Agricultural management professionals and their lawyers need to be aware of recent regulatory and litigation developments, and to prepare for the changes these developments may inspire. Proposals to regulate H₂S are appearing at the federal and state levels. Litigation is also sprouting up across the land. The following are just a few actions of which you should be aware.

Regulatory Developments

Emergency Planning and Community Right-to-Know Act ("EPCRA") Section 313: In August 1994, EPA issued an administrative stay on all of the EPCRA Section 313 reporting requirements for H₂S. EPA’s Section 313 office reportedly is nearing completion of re-performing its own hazard assessment on H₂S and expects to issue a Federal Register notice sometime in late 2000. Depending upon the comments obtained on that notice, EPA will either propose to remove H₂S from the Section 313 listing or re-propose its listing.

Acute Exposure Guideline Levels ("AEGL") for H₂S: On April 26-28, 2000, the National Advisory Committee on Acute Exposure Guideline Levels for Hazardous Substances ("NAC/AEGL Committee") met to address the various aspects of acute toxicity and the development of AEGLs for all exposure periods for several chemicals, including H₂S. The proposed AEGL values did not change as a result of the meeting, and will now be reviewed by the Scientific Advisory Panel. There is significant debate regarding the values and the basis upon which they were set.

Development of Integrated Risk Information System ("IRIS") for H₂S: In January 2000, EPA issued a Federal Register notice announcing its efforts in developing health assessments for IRIS. H₂S is one of the chemicals for which EPA is developing a health assessment.

American Conference of Governmental Industrial Hygienists ("ACGIH") Threshold Limit Value ("TLV"): The ACGIH annual report proposed a notice of intended change ("NIC") for the TLV of H₂S from 10 ppm to 5 ppm. ACGIH considers the proposed values as "trial values" for a year following ratification by the ACGIH Board of Directors. During this year, ACGIH accepts comments and suggestions from interested parties regarding the appropriateness of the proposals. If ACGIH does not receive any evidence that questions the appropriateness of the H₂S value, the same proposed change will be reconsidered for adoption as the TLV.

Citizens Request to List H₂S as a Hazardous Air Pollutant ("HAP"): On January 25, 1999, an ad hoc coalition of public health, environmental, and public interest organizations sent a letter to EPA seeking to list H₂S as a HAP under Clean Air Act ("CAA") Section 122(b). In response to the letter, EPA stated it will be requesting additional information on H₂S. If H₂S is listed as a HAP, facilities emitting H₂S must meet Maximum Achievable Control Technology standards – potentially stricter emission control requirements than the current best available control technology.

California Office of Environmental Health Hazard Assessment ("OEHHA") Chronic Reference Exposure Level ("REL"): On April 25, 2000, OEHHA adopted a REL for H₂S of 10 Fg/m³ (8 ppb). The RELs are part of a series of Risk Assessment Guidelines being developed by OEHHA for use in implementing the Air Toxics "Hot Spots" Program mandated by the Air Toxics Hot Spots Information and Assessment Act.

Minnesota Health Risk Values: The Minnesota Department of Health has proposed draft acute inhalation health risk values and multimedia health risk values for H₂S. A draft health risk value for H₂S may be proposed in Summer 2000.

Litigation

In addition to the regulatory actions, H₂S has been the subject of several enforcement actions and citizens petitions and suits. The following are of critical importance to the agricultural management community:

Enforcement Action Against IBP: On January 12, 2000, the United States Department of Justice ("DOJ") charged an Iowa meat processing company, IBP, with violations of federal air, water, and waste management laws due to excessive releases of H₂S. IBP is being charged with emitting uncontrolled amounts of H₂S into the air from uncovered waste lagoons. In addition to significant financial penalties, DOJ is asking the court to order IBP to cover or close its lagoons, capture emissions from uncontrolled substances, and install additional treatment for its discharges into the Mississippi River.

Notice of Violation ("NOV") Issued to Premium Standard Farms: EPA issued on April 26, 2000, a NOV to several concentrated animal feeding operations ("CAFOs") owned by Premium Standard Farms for violations of the CAA, including failure to secure preconstruction and operating permits, failure to report air emissions, and illegally emitting air pollutants – including H₂S and particulate matter. EPA has stated it intends to take a closer look at CAFOs and mechanisms – such as the CAA and Clean Water Act – to curb pollution from these sources.

Citizens Suit Against Prestage Farms: A group of citizens in Mississippi filed a $75 million lawsuit against Prestage Farms and other local farms. The plaintiffs claim that the hog farms present a public and private nuisance, and intentional infliction of emotional distress. The complaint specifically alleges that such "large commercial operations" emit "dangerous levels of poisonous and noxious gases such as . . . hydrogen sulfide . . . which individually or in combination can be dangerous, injurious, highly toxic, hazardous and even lethal."

As evidenced from this list of regulatory and litigation actions, H₂S is a hot topic in the regulatory and enforcement arenas. Each of these actions could have significant impacts upon agricultural managers and should be monitored closely.

Lynn L. Bergeson is a founding shareholder of Bergeson & Campbell, P.C., a Washington, D.C. law firm specializing in chemical product approval and regulations, and other environmental and occupational safety and health law and business matters. Robin J. Schoeps is an associate with the firm.