EPA Publishes ANPR on Hydraulic Fracturing Chemical Substances and Mixtures

by Bergeson & Campbell, P.C.
Contact

The U.S. Environmental Protection Agency (EPA) published in the May 19, 2014, Federal Register an advance notice of proposed rulemaking (ANPR) to seek comment on the information that should be reported or disclosed for hydraulic fracturing chemical substances and mixtures and the mechanism for obtaining this information. According to EPA, this mechanism could be regulatory (under Sections 8(a) and/or 8(d) of the Toxic Substances Control Act (TSCA)), voluntary, or a combination of both. It could include best management practices, third-party certification and collection, and incentives for disclosure of information. In addition, EPA seeks comment on ways to minimize reporting burdens and costs and avoid duplicating state and other federal agency information collections, while at the same time maximizing data available for EPA risk characterization, external transparency, and public understanding. EPA is also soliciting comments on incentives and recognition programs that could be used to support the development and use of safer chemicals in hydraulic fracturing. Comments are due August 18, 2014. More information is available online.

Background

According to the Federal Register notice, EPA received a petition from Earthjustice and 114 other groups on August 4, 2011, requesting that EPA issue TSCA Sections 4 and 8 rules requiring toxicity testing of chemicals and mixtures used in oil and gas exploration and production; reporting to EPA, among other things, the identity of those chemicals and mixtures; and submitting to EPA health and safety studies on the chemicals and mixtures. In EPA's November 2, 2011, initial response, EPA denied the TSCA Section 4 request for issuance of a test rule because, according to EPA, "the petition did not set forth sufficient facts to conclude that it was 'necessary to issue' the requested TSCA section 4 rule, as required by TSCA section 21(b)(1)." On November 23, 2011, EPA granted in part and denied in part the TSCA Section 8(a) and Section 8(d) requests by limiting the scope from chemicals and mixtures used in all processes of oil and gas exploration and production to chemical substances and mixtures used in hydraulic fracturing. EPA published a document with its rationale for its response to the petition in the July 11, 2013, Federal Register, and stated its intent to publish an ANPR to identify key issues for further discussion and analysis.

Request for Comment

EPA requests comment on the design and scope of potential regulatory or voluntary approaches, or combination of both approaches, to obtain information on chemical substances and mixtures used in hydraulic fracturing. EPA states that it invites comments on all aspects of the ANPR, including its description of hydraulic fracturing activities. Comments should provide enough detail and contain sufficient supporting information for EPA to understand the issues raised and give them the fullest consideration. Comments should include alternatives, rationales, benefits, technological and economic feasibility (including costs), and supporting data. Supporting information should include any information that substantiates conclusions and recommendations, including, but not limited to experiences, data, analyses, studies and articles, and standard professional practices. Below is a summary of the topics for which EPA seeks comment. The ANPR includes more specific questions for each topic.

Overall Approach to Reporting and Disclosure of Chemical Substances and Mixtures Used in Hydraulic Fracturing

EPA seeks comment on what information should be reported to EPA (or through a confidential business information (CBI) cleared third-party certifier) or disclosed publicly (by EPA) regarding the identity, quantities, types and circumstances of uses of chemical substances and mixtures used in hydraulic fracturing, as well as what types of health and safety studies should be reported or disclosed. EPA requests comments on whether and how data that are claimed to be CBI could be reported to EPA (or a third-party certifier) and then aggregated and disclosed while protecting the identities of individual products and firms. EPA also requests comment on the appropriate mix of voluntary disclosure and/or regulatory reporting mechanisms. EPA notes that TSCA Section 8(e) requires manufacturers, importers, processors, and distributors to provide EPA with information on any of their chemical substances or mixtures that reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment.

Who Should Report or Disclose Information on Chemical Substances and Mixtures Used in Hydraulic Fracturing

Under TSCA Section 8(a), EPA has the authority to require, by rulemaking, chemical manufacturers and processors to maintain records and submit to EPA reports about chemical substances and mixtures, as well as environmental and health data on those substances and mixtures. According to EPA, the hydraulic fracturing industry includes a variety of companies that could be subject to TSCA Section 8(a) reporting, including 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 the formation. EPA requests comment on whether, in the context of a potential reporting and/or disclosure program, all or any companies should be required to report or whether a specific type or types of company (e.g., chemical supplier) should be required to report and other types (e.g., service provider) be encouraged to report voluntarily.

Scope of Reporting or Disclosure of Information on Chemical Substances and Mixtures Used in Hydraulic Fracturing

EPA seeks comment on the information that should be reported or disclosed regarding chemical substances and mixtures used in hydraulic fracturing. According to the notice, EPA is exploring various regulatory approaches, voluntary approaches, or a combination of both for obtaining this information. Under TSCA Section 8(a), EPA has the authority to require, by rulemaking, chemical manufacturers and processors to maintain records and submit to EPA such reports as EPA may reasonably require. EPA states that it expects that data obtained could be aggregated to provide a national list of the chemical substances and mixtures used in hydraulic fracturing, providing it with the ability to determine which chemicals are used most frequently. For chemicals that have not been previously well-characterized in terms of their chemical, physical, and toxicological properties, EPA states that it may conduct research to understand better these properties to perform a basic risk characterization.

Use of Third-Parties

EPA requests comments on the use of third-parties for the collection of information on chemical substances used in hydraulic fracturing and/or to certify the use of best practices.

Reporting Threshold and Frequency of Reporting or Disclosure

EPA states that it is interested in comments regarding the threshold for the size of entities that should be required or encouraged to report or disclose information on chemical substances and mixtures used in hydraulic fracturing and environmental and health data on those substances and mixtures. EPA is also interested in comments regarding how often reporting or disclosure should take place.

Data Collection Efficiency

According to the notice, EPA believes that any mechanism for reporting and/or disclosure of information on chemical substances and mixtures should be structured in a manner that minimizes the potential for duplication and overlap.

Health and Safety Studies of Chemicals and Mixtures Used in Hydraulic Fracturing

EPA seeks comment on potential options for reporting or disclosure of health and safety studies for chemical substances and mixtures used in hydraulic fracturing. Under TSCA Section 8(d), EPA has the authority to require manufacturers, processors, and distributors of any chemical substance or mixture and persons who propose to manufacture, process, or distribute in commerce any chemical substance or mixture to submit health and safety studies to EPA. EPA notes that one mechanism for the collection of these studies is TSCA Section 8(d), while other mechanisms could include voluntary approaches. EPA requests comment on the types of companies that would report or disclose health and safety studies. EPA also requests comment on whether companies should be required to report studies or be encouraged to disclose studies, or whether a combination of regulatory and voluntary approaches should be used to obtain health and safety studies.

Safer Chemicals and Transparency

According to EPA, incentives and recognition programs could be used to support the development and use of safer chemicals (both those created deliberately and inadvertently) in hydraulic fracturing. EPA states that safer chemicals are generally less toxic to human health and the environment, and are less persistent and bioaccumulative than their alternatives. Under an EPA-sponsored voluntary initiative, EPA states that it could provide resources and recognition for companies committed to promoting and using safe and sustainable practices. EPA notes that such a voluntary program could help companies meet corporate sustainability goals by providing the means to, and an objective measure of, environmental stewardship. Information that could be collected or disclosed under such a voluntary program could be used to verify a company's eligibility for award or recognition in relation to identified measures and goals.

EPA suggests that existing programs that encourage the development of safer chemicals (e.g., the Green Chemistry Program and the Sustainable Futures Program) or the use of safer substitutes (e.g., Design for the Environment) could serve as models for application to hydraulic fracturing. According to EPA, a similar program focusing on chemicals used in hydraulic fracturing could speed adoption by well owners, operators, and suppliers of safer chemicals. The program could also increase public understanding about chemical choice and use in hydraulic fracturing. EPA states that, to determine whether replacement chemicals are safer, it would be important to take into account the effectiveness and potential associated risks with the alternative chemical. EPA requests comment on strategies for creating incentives and voluntary approaches for the development and use of safer chemicals.

Commentary

The ANPR delivers on EPA's commitment to engage in a stakeholder process to develop an approach to obtaining information on chemicals used in hydraulic fracturing. At the same time, given the scope and complexities of the areas discussed in the notice, it is less than clear that EPA will obtain useful information in response to the ANPR that will assist its consideration of the issues and contribute to a workable approach for obtaining the information requested by the petitioners.

The petitioners' request for Section 8 reporting was relatively straight-forward, asking for reporting of information on chemical identities, quantities, byproducts, the number of potentially exposed individuals, and related information. While there are several possible complexities at play, particularly concerning EPA's role versus that of other ongoing or planned information reporting (e.g., by FracFocus, various states, other federal agencies (Bureau of Land Management (BLM)), for which the ANPR might have produced some useful comments, the notice raises a host of additional questions that, in turn, raise significant and difficult legal, procedural, and policy issues. While a full review of the many such issues raised is beyond the scope of this analysis, the following could be highlighted:

  • TSCA Section 8 enables EPA to require reporting from manufacturers (including importers) and processors, but not users. In discussing the companies that could be subject to reporting, EPA discusses "service providers responsible for injecting the hydraulic fracturing fluid into the well." While such service providers might process (blend) the chemicals during earlier stages, they could become users (and "end users" for that matter) when doing the injection and would not be subject to reporting. Or by raising the point is EPA sotto voce asking for comment on whether such an activity fits within "processing"? In context, either interpretation is possible.
     
  • Early in the notice, without explanation, the concept of reporting to EPA "through a CBI cleared third-party certifier" is raised. We have been involved in TSCA matters for over three decades and, while we recognize that appropriately cleared government officials and EPA contractors can access CBI, we have never encountered this formulation and wonder why EPA did not see the need for at least some explanation.
     
  • In discussing the "scope of reporting," after reviewing a series of standard elements for Section 8(a) reporting, the notice discusses how the chemicals and mixtures used "may react to create other chemical substances and mixtures as products within an on-site mixing apparatus or in the well" and asks for comment on the reporting that should be included.
     
  • Regarding "safer chemicals," EPA raises questions and points to its ongoing efforts such as Green Chemistry and Design for the Environment. While we see merit in pursuing efforts to encourage the use of safer chemicals in hydraulic fracturing operations, we were puzzled when the notice characterized these as involving "safer chemicals (both those created deliberately and inadvertently) in hydraulic fracturing." Seemingly, the parenthetical phrase adds little beyond confusion to the discussion of developing and using safer chemicals in hydraulic fracturing.

In general, the ANPR may reflect an attempt by EPA to send up a large trial balloon of various ideas that may or may not altogether reflect the realities of what could be achieved under current TSCA authority or that are consistent with present TSCA program implementation. It may be that some ideas commented upon in this ANPR notice may be beyond anything likely to be implemented by EPA's Office of Pollution Prevention and Toxics, but nonetheless may receive favorable consideration by other agencies or under different authorities under EPA's jurisdiction. Stakeholders are urged to respond to EPA's request for comment to ensure the many important questions that are asked are thoughtfully answered.

At the same time, such a broad, generalized call for consideration of various suggestions and ideas runs some risks for EPA's toxic chemical programs (even if one includes the Toxics Release Inventory (TRI) program along with the TSCA implementation activities). While having numerous ideas "in play" and able to claim that they are "under consideration," the Administration may be raising expectations among environmental constituencies that later will likely be able to ask about how or when any of these initiatives will happen. As an ANPR, and one with somewhat novel or untested approaches as discussed earlier, the actual time frame one should expect any final rule to make any of this a reality is four to six years at a minimum. A cynic might note this puts any decisions about final rules beyond the reach of the current Administration officials. Although there are no indications that this is a conscious element of the current announcement, no one should expect action taken under this initiative to happen anytime soon.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Bergeson & Campbell, P.C. | Attorney Advertising

Written by:

Bergeson & Campbell, P.C.
Contact
more
less

Bergeson & Campbell, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.