On May 9, the Environmental Protection Agency (EPA) published an Advanced Notice of Proposed Rulemaking (ANPR) soliciting comment from stakeholders and the general public regarding obtaining information on chemical substances and mixtures used in hydraulic fracturing for oil and gas exploration and development. The ANPR was released in response to a citizen petition received by the EPA from Earthjustice, the Environmental Defense Fund (EDF), and more than 100 other organizations.
Currently, hydraulic fracturing is regulated on a state-by-state basis, with federal regulation limited to public lands managed by the Bureau of Land Management (BLM). Under Section 4 of the Toxic Substances Control Act (TSCA), the EPA can, in certain circumstances, require manufacturers of certain chemicals to conduct testing on the health and environmental effects of those chemicals. In addition, under TSCA Section 8 the EPA can require manufacturers and processors of certain chemicals to maintain records and provide regular reports to the EPA regarding: the quantities manufactured or processed; the byproducts resulting from the manufacture, processing, use, or disposal of each chemical; existing data regarding the environmental and health effects of each chemical; and the number of individuals exposed to the chemicals.
In August 2011, Earthjustice submitted to the EPA a citizen petition under Section 21 of TSCA. The petition requested that the EPA issue rules under TSCA Sections 4 and 8 requiring the testing and disclosure of chemicals and mixtures used in oil and gas exploration and production. On November 2, 2011, the EPA denied the TSCA Section 4 request because the petition did not include sufficient facts to merit the issuance of a rule under the provisions of TSCA. On November 23, 2011, the EPA granted part of the Section 8 request, but limited the scope to chemicals and mixtures used specifically in hydraulic fracturing.
TSCA includes a requirement that the EPA coordinate with other federal agencies to achieve the maximum enforcement of the law while imposing the least burden of duplicative requirements on those subject to it. Since the BLM was in the process of developing regulations for hydraulic fracturing on federal lands, the EPA was required to coordinate its activities with the BLM’s to ensure that both agencies’ efforts provide useful information for the assessment and disclosure of chemicals used in hydraulic fracturing while not unduly burdening the reporting entities.
In response to the recent steps made by the EPA, lead EDF scientist Richard Denison stated in a blog post that “it’s unfortunate that this process has taken so long, as it addresses a critical need to ensure the safety of chemicals used in fracking; this is only the first baby step towards initiating the rulemaking process EPA said it would undertake.”
As reported in the Wall Street Journal, Miriam Swydan Erickson, a consultant to the natural-gas industry in Washington, poignantly commented that the “disclosure of the chemicals, not the proprietary formulas, by companies could be a positive thing for industry if it can allay fears of fracking opponents about toxic chemicals in groundwater.”
Many drilling companies are already disclosing their chemical information on FracFocus.org, the national hydraulic fracturing chemical registry, which is managed by the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission. One company in particular, Baker Hughes, Inc. (BHI), the world’s third largest oil field service provider, released a statement that it would disclose all of the chemicals used in fracking fluids after negotiating with suppliers and customers.
According to the EPA website, the ANPR is “intended to engage the public and solicit comments and/or information from the public for EPA’s consideration in addressing a particular issue, including information that EPA could consider in developing non-regulatory approaches or a proposed rule.” Of specific interest is “the design and scope of potential regulatory or voluntary approaches… to obtain information on chemical substances and mixtures used in hydraulic fracturing.” Relevant points of discussion should include potential alternatives, rationales for having a particular requirement be required by regulation instead of being voluntary, and the technological and economic feasibility for one approach over another.
The comment period will last for 90 days, after which the agency will take all comments into consideration for deciding the appropriate next steps. In a statement released by EPA’s James Jones, assistant administrator for the Office of Chemical Safety and Pollution Prevention, the agency announced that it “looks forward to hearing from the public and stakeholders about public disclosure of chemicals used during hydraulic fracturing, and we will continue working with our federal, state, local, and tribal partners to ensure that we complement but not duplicate existing reporting requirements.”
To read the EPA’s ANPR, use the following link: http://www.epa.gov/oppt/chemtest/pubs/prepub_hf_anpr_14t-0069_2014-05-09.pdf.
All comments must be submitted on or before August 18, 2014. To submit your comments or read what others have submitted in response to the ANPR, go to http://www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2011-1019-0001.
