EPA today published an advanced notice of proposed rulemaking seeking comment, by August 18, 2014, on a variety of options EPA is considering to collect and make available to the public information about chemicals used in oil and gas exploration and production, particularly those used in hydraulic fracturing.  79 Fed. Reg. 28664 (May 19, 2014).  This ANPRM signals the potential for a rule requiring disclosure of detailed information about chemicals used in hydraulic fracturing E&P activities, possibly imposing obligations on everyone from the manufacturers or importers of the chemicals to the service companies or well operators who mix the chemicals onsite prior to use.  This initiative is the outcome of a TSCA rulemaking petition filed in 2011 by over 100 environmental and public interest groups, which EPA denied in part and granted in part.

Commenting on this ANPRM is a good opportunity to shape this rulemaking and to create a record in the event the final rule is challenged in the D.C. Circuit.  For these reasons, comments should, where possible, be supported with specific facts and data, rather than simply voicing general concerns

The entirety of the ANPRM is open to comment, and EPA seeks comment on over 50 specific questions.  Among the issues in play are:

  • Should reporting requirements be mandatory under TSCA §§ 8(a) and 8(d), voluntary, or some combination of the two?
  • What role might third-parties play in any reporting scheme?
  • Should reporting requirements apply only to hydraulic fracturing fluids, or other chemicals used in preparation for fracturing activities, such as geologic tracers, even to chemicals used in E&P operations, such as corrosion inhibitors, scale reducers and biocides?
  • To whom should reporting requirements apply?  Only the manufacturers or importers of the chemicals?  Or should the service providers or well operators who mix chemicals on-site prior to injection also have reporting obligations?  Should there be different reporting obligations for different players?
  • What are the current “best practices” for collecting and reporting such information, and how should EPA take those into account?
  • What types of information should be reported and at what level of detail?  For example, under TSCA § 8(a), EPA believes it has the authority to request information such as a description of the byproducts resulting from the processing, use and disposal of hydraulic fracturing fluids, all existing data concerning the environmental and health effects of each chemical and mixture, the number of employees who will be exposed to the chemicals (or a reasonable estimate) and the duration of that exposure, and the method of disposal of each chemical (or mixture).  EPA also asks whether reporting should include any substances created by the reactions that may occur when hydraulic fracturing chemicals are mixed.
  • There are many questions on data management and confidential business information.

Some of the issues raised in the ANPRM go beyond simply reporting information.  For example, EPA seeks comment on how the collected information might be used to provide guidance on safe and sustainable practices associated with the use of fracturing chemicals and better inform research and development on such chemicals, and what provisions of TSCA might be used by EPA to encourage the development and use of “safer” chemicals in E&P operations.

Therefore, this ANPRM will be a platform for proponents and opponents of hydraulic fracturing to create a record and advance their views on the nature and use of chemical substances in E&P operations, not just the issue of reporting, with the likely outcome being a final rule that will probably be the subject of D.C. Circuit litigation.