The Ohio State Emergency Response Commission (SERC) recently issued a memorandum to the State’s oil and gas well owners and operators, clarifying that they must comply with the reporting requirements under the Emergency Planning and Community Right-to-Know Act (EPCRA) despite a State law that seemingly allows hydraulic fracturing (also known as “fracking”) operations to avoid such requirements. EPCRA was established to help communities plan for emergencies involving hazardous substances and includes requirements for reporting on hazardous and toxic chemicals.
In 2001, Ohio adopted Ohio Revised Code Section 3750.081, which provided an alternative reporting mechanism for oil and gas facilities for disclosure of chemicals to the Ohio Department of Natural Resources. In April 2013, a citizen’s petition was filed with USEPA, requesting that it determine whether Ohio’s statutory requirements were inconsistent with EPCRA. USEPA responded on April 26, 2013, determining that Ohio’s alternative reporting requirement does not supersede EPCRA requirements. As a result, Ohio oil and gas well owners and operators must separately meet the EPCRA requirements to ensure compliance with federal law.
Pursuant to EPCRA, Ohio oil and gas well owners and operators that store one or more hazardous chemicals at or above the 10,000 pound threshold, must notify SERC, the Local Emergency Planning Committee, and the local fire department within 90 days after receiving a shipment or producing the substance on site. If an Extremely Hazardous Substance (EHS) exceeding the threshold reporting quantity is stored at the well site, notice must be provided within 60 days. In addition, facilities must submit a detailed report (Tier II Chemical Inventory Report) each year for any hazardous chemicals or EHS that meet or exceed the applicable reporting thresholds. The SERC memorandum also clarifies that a trade secret claim for a chemical identity should follow USEPA’s procedure.
Oil and gas well owners and operators in Ohio must comply with all applicable EPCRA requirements or face significant enforcement risks by USEPA. Indeed, the memorandum warns that failure to comply with EPCRA requirements may result in enforcement by USEPA, including civil penalties of up to $32,500 per day for violations of the Tier II chemical reporting requirements. To the extent that other states have similar laws, USEPA is likely to find that the EPCRA reporting requirements are not met by compliance with state law alone.