EPA Announces Advance Notice of Proposed Rulemaking Regarding Hydraulic Fracturing Chemicals and Mixtures under TSCA

            EPA has taken another step toward additional regulation of hydraulic fracturing chemicals and mixtures.  In August 2011, Earthjustice and 114 other groups filed a petition asking EPA to promulgate rules under Sections 4 and 8 of the Toxic Substances Control Act (TSCA) that would force companies to perform toxicity testing, provide mandatory chemical identification and disclosure, and submit health and safety studies on chemicals used in hydraulic fracturing and related oil and gas production activities.  In response to the Petition, EPA declined some aspects of the requests, but chose to move forward with regard to additional disclosure of hydraulic fracturing chemical substances and mixtures, and the best way to obtain this information.   

             Last Friday (May 9, 2014), EPA announced it would file an Advance Notice of Proposed Rulemaking to seek public comment on information that should be reported and disclosed for hydraulic fracturing chemicals, the approaches for obtaining the information, which parties should provide such information, and how the objectives might be met without unnecessary duplication of existing programs.  EPA is also soliciting input on incentives and recognition programs that could support the development and use of safer chemicals in hydraulic fracturing.  EPA said the ANPR “will help inform EPA’s efforts to promote the transparency and safety of unconventional oil and gas activities while strengthening protection of our air, water, land and communities.”

            The ANPR includes a list of questions that EPA believes will assist stakeholders and the public in providing useful comments as a prelude to EPA’s rulemaking.  After the ANPR is filed in the Federal Register, commenters will have 90 days to provide comments.  EPA will review the comments and consider its next steps, which could take a considerable amount of time.  EPA stated its intent to consider non-regulatory approaches, identify other programs already in place (both regulatory and voluntary), and to avoid duplication of effort.

             In January 2011, the Arkansas Oil & Gas Commission’s (AOGC) Rule B-19 became effective, making Arkansas only the second state in the country to require disclosure of hydraulic fracturing chemicals.  The compiled chemical disclosure information is published on the AOGC website at http://www.aogc.state.ar.us/Well_Fracture_Companies.htm.  Since that time, several other states have followed suit and now require disclosure by statute or regulation.  In addition to state efforts, the Ground Water Protection Council and Interstate Oil and Gas Compact Commission, two organizations whose missions both revolve around conservation and environmental protection, maintain a fracturing chemical registry at http://FracFocus.Org.  Significant improvements to the availability of fracturing chemical information have occurred since the original TSCA petition that ultimately resulted in EPA’s ANPR. Industry stakeholders should be diligent in demonstrating the effectiveness of current system, and encourage EPA to give proper consideration to states that have an effective program in place.

            EPA’s ANPR can be read in its entirety at : http://www.epa.gov/oppt/chemtest/pubs/prepub_hf_anpr_14t-0069_2014-05-09.pdf