Several environmental groups have sued EPA, seeking a decision on a 2012 petition (“2012 Petition”) they filed with the agency, which requests that EPA add oil and gas exploration wells to the list of facilities required to report releases of toxic chemicals to the Toxics Release Inventory (“TRI”) pursuant to the Emergency Planning and Community Right-to-know Act (“EPCRA”), 42 U.S.C. § 11023(b). The plaintiffs allege that EPA’s delay in responding to their 2012 Petition is unreasonable under the Administrative Procedures Act and ask the Court to order EPA to issue a final response to their 2012 Petition within sixty (60) days.
EPCRA was enacted as a response to serious chemical releases at major industrial facilities, including the 1984 disaster in Bhopal, India, in which a gas leak at a chemical manufacturing plant killed thousands of local residents, and a release from a similar plant in West Virginia the following year. EPCRA requires the owners and operators of certain facilities to report the amounts of chemicals the facility releases each year. 42 U.S.C. § 11023(a), (g). The TRI annual reporting requirements apply to owners and operators of facilities that: (1) have ten or more full-time employees; (2) are in a TRI-listed industrial sector; and (3) have manufactured, processed, or otherwise used one of the TRI-listed toxic chemicals in excess of the listed threshold quantity during the calendar year. 42 U.S.C. § 11023(b).
EPA first considered adding the oil and gas extraction industry to the TRI program in 1996. At the time, the Agency declined to subject the industry to the TRI requirements in part due to the fact that a single well would rarely meet the requirements for a “facility” under the EPCRA: “This industry is unique in that it may have related activities located over significantly large geographic areas. While together these activities may involve the management of significant quantities of EPCRA section 313 chemicals in addition to requiring significant employee involvement, taken at the smallest unit (individual well), neither the employee nor the chemical thresholds are likely to be met.” 61 Fed. Reg. 33,588, 33,592 (June 27, 1996). EPA stated that it would address the issue again in the future. Id.
The 2012 Petition seeks to sidestep EPA’s reservations by broadening the definition of a facility to go beyond individual wells. Industry has raised concerns that such a definition improperly attempts to aggregate a vast number of non-contiguous and non-adjacent sites in its attempt to create “facilities” to meet the TRI reporting thresholds. Adding the industry to the TRI program, it is argued, would strain the concept of a facility and produce limited benefits while imposing an administrative burden on both the regulated industry and EPA.
EPA’s response to the lawsuit is due March 9, 2015.