Earthjustice, Environmental Defense Fund, the Natural Resources Defense Council, and dozens of other smaller environmental groups, have filed an anticipated petition [PDF] asking EPA to promulgate rules under the Toxic Substances Control Act (TSCA) regulating oil and gas exploration and production (E&P) chemicals. The petition requests that EPA adopt a rule under section 4 of TSCA requiring manufacturers and distributors (not drilling companies) to conduct toxicity testing of all E&P chemicals and make the information publicly available. The petition also requests a rule under section 8 of TSCA requiring maintenance and production of various records related to E&P chemicals, including the submission of existing health and safety studies related to E&P chemicals. EPA has 90 days to respond to the petition.
Earthjustice alleges that multiple loopholes in the current regulatory scheme, including E&P exemptions under the Resource Recovery and Conservation Act (RCRA) and limitations in reporting requirements under the Emergency Planning and Community Right to Know Act (EPCRA) require more stringent TSCA regulation. Earthjustice also claims that TSCA disclosure rules are needed to fill gaps in state regulation, arguing disclosure rules like those recently adopted by the Wyoming Oil and Gas Conservation Commission (WYOGCC) “fall short of what a rulemaking under TSCA sections 4 and 8 would provide.”
It is important to place the TSCA petition into context. The vast majority of the fluid used to frack a well is comprised of water and sand. Typically, the chemicals to which this petition is addressed comprise 0.5 % to 1% of the mixture. For this small fraction of fluids the important states already require, or are in the process of requiring, companies to disclose the names of the chemicals used (typically with a provision for trade secrets or confidential business information)—information which then is available to the public and emergency response officials. For example, Pennsylvania requires companies to provide the Department of Environmental Protection the names of chemicals used as well as provide Material Safety Data Sheets (MSDS) for each chemical as part of the permitting process. And similar to what Wyoming, Texas and Arkansas have already done, Colorado’s governor just announced that the state’s oil and gas commission will put in place disclosure rules by the end of the year. These rules come in addition to the voluntary disclosure registry—FracFocus—operated by the Groundwater Protection Council and the Interstate Oil and Gas Compact Commission, which industry has by in large supported.
The chances of EPA accepting the TSCA petition are uncertain, but may be diminished by the Agency’s ongoing study. As part of that effort, EPA already is assessing the extent of potential adverse impacts of fracking chemicals. To require additional testing under TSCA Section 4, EPA first must determine that either the substance presents an unreasonable risk of injury to human health or the environment, or that the substance is produced in substantial quantities and that there is either substantial human or environmental exposure. It is debatable whether the petition meets the Agency’s criteria for showing any—much less substantial—human or environmental exposure. Moreover, before issuing a test rule the agency also must make a finding that there currently is insufficient data or experience on the substances’ potential human health or environmental effects, and that testing is necessary to develop such data. The necessity of ordering additional testing is unclear at this time given the pending EPA study and data review, individual state regulatory disclosure requirements, and voluntary industry disclosures. In short, even if Earthjustice has satisfied the standard for a TSCA petition, it may be premature for EPA to grant the petition until it can better define the data gaps for which testing is needed to fill—which are likely to be identified through the Agency’s study.