On May 9, the Administrator of the United States Environmental Protection Agency (“EPA”) signed an advanced notice of proposed rulemaking (“ANPR”) seeking public input on whether the Agency should collect and publicly disclose information on hydraulic fracturing chemical substances and mixtures. The ANPR, titled Hydraulic Fracturing Chemicals and Mixtures; Advance Notice of Proposed Rulemaking [RIN 2070-AJ93; FRL-9909-13], will be published in the Federal Register shortly, and will provide 90 days for submission of public comments.
EPA published the ANPR in response to an August 2011 citizen petition submitted under section 21 of the Toxic Substances Control Act (TSCA) by Earthjustice and a coalition of other environmental entities.
The ANPR seeks input on a wide range of issues related to fracking chemicals and mixtures. Broadly summarized, EPA requests comment from the public and stakeholders on the following issues:
Whether EPA should collect information on fracking chemicals and mixtures;
If so, which legal mechanism(s) EPA should use to obtain such information from the regulated community and whether submission of the information would be mandatory or voluntary;
What companies or practices would be subject to reporting requirements or other regulation of fracking chemicals;
Information on best management practices for the generation, collection, reporting and/or disclosure of public health and environmental information, potentially including health and safety studies, from or by companies that manufacture, process, or use chemical substances or mixtures in hydraulic fracturing;
What practices or operations can be implemented and verified to achieve protection of public health and the environment associated with fracking chemicals and mixtures;
Whether voluntary third-party certification, and incentives for disclosure, could be valuable tools for improving chemical safety related to fracking;
Whether incentives and recognition programs could be used to support the development and use of safer chemicals in hydraulic fracturing; and
Identification of options to minimize reporting burdens and costs, avoid duplication of efforts, and maximize transparency and public understanding associated with fracking chemicals.
EPA will use the information collected during the public comment period to decide whether to proceed with the development of a proposed rule to regulate fracking chemicals and mixtures. If EPA proceeds with such a rulemaking, EPA will be required to publish a detailed copy of the proposed rule, including the justification and basis for the rulemaking, and seek comment from the public and stakeholders prior to adopting any final, enforceable regulation.
The ANPR is particularly relevant to companies that manufacture, import, process, or distribute any chemical substances or mixtures used in any type of hydraulic fracturing. EPA indicates in the ANPR that future regulation could extend to chemical manufacturers, chemical suppliers who engage in processing, service providers mixing chemicals on site to create the hydraulic fracturing fluids, and service providers responsible for injecting the hydraulic fracturing fluid into the well to fracture a formation. This would likely include, at a minimum, businesses falling under the North American Industry Classification System codes 2111 (oil and gas extraction) or 2131 (support activities for mining).
As part of its regulatory process, EPA is specifically considering the legal authority under which it would regulate fracking chemicals. EPA is evaluating whether regulation would be mandatory, pursuant to the Agency’s authorities under TSCA section 8(a) and/or section 8(d), or voluntary pursuant to the Pollution Prevention Act, 42 U.S.C. 13101, or a combination of both. If EPA proceeds to issue a rule under its TSCA authorities, the regulated community may be legally obligated to publicly report the “identity, quantities, types and circumstances of uses of chemical substances and mixtures used in hydraulic fracturing” and/or to conduct and disclose health and safety studies on the use of such chemicals.
The draft of the ANPR submitted to the Federal Register for publication is available on EPA’s website by clicking here