Recently the Environmental Protection Agency (“EPA”) sent a “prerule” notice to the White House Office of Management and Budget (“OMB”) in an initial effort to determine what reporting might be required for chemicals used in hydraulic fracturing.  OMB’s Office of Information and Regulatory Affairs announced last month that it had received an “advance notice of proposed rulemaking” from EPA concerning the potential regulation of chemicals used in “fracking.” According to the Unified Agenda listing for this rulemaking (RIN: 2070-AJ93), this action was initiated in response to a petition filed under section 21 of the Toxic Substances Control Act (“TSCA”).

Under TSCA, EPA’s Office of Chemical Safety and Pollution Prevention is attempting to determine what reporting may be required on the chemicals used in fracking.  While EPA has not yet formally decided whether it will issue a proposed rule, it plans to use the information gathered to determine what, if any, action is needed.  EPA’s website reports:

Although EPA has granted the petitioners' request to initiate a rulemaking proceeding under TSCA sections 8(a) and 8(d), the Agency is not committing to a specific rulemaking outcome. EPA intends to first develop an Advance Notice of Proposed Rulemaking (ANPRM) and initiate a stakeholder process to provide input on the design and scope of the TSCA reporting requirements that would be included in a proposed rule. EPA anticipates that States, industry, public  interest groups, and members of the public will be participants in the process. The stakeholder process will bring stakeholders together to discuss the information needs and help EPA to ensure any reporting burdens and costs are minimized, ensuring information already available is considered in order to avoid duplication of efforts. The dialogue will also assist EPA in determining how information that is claimed Confidential Business Information could be aggregated and disclosed to maximize transparency and public understanding.  

Hydraulic Fracturing Chemicals, Chemical Information Reporting under TSCA section 8(a) and Health and Safety  Data Reporting under TSCA section 8(d)

The basic chemicals employed in fracking fluids are widely known, but specific constituent elements and components used in each well typically are subject to a claim of “trade secret,” and consequently not fully disclosed.   Although EPA has not committed to a specific rulemaking course of action governing the reporting of chemicals, it is initiating this round of rulemaking under TSCA to obtain data on chemical substances and mixtures used in fracking.  See also, “EPA Takes Next Step Toward Rulemaking On Chemical Reporting for Fracking Fluids, By Alan Kovski, 45 ER 851, March 21st, 2014; Chemical Facility Security News, March 14, 2014