EPA requests public comment on disclosure of chemicals and mixtures used in hydraulic fracturing

On May 9, 2014, the U.S. Environmental Protection Agency (EPA) released an advance notice of proposed rulemaking (ANPR) seeking public and stakeholder “comment on the information that should be reported or disclosed for hydraulic fracturing chemical substances and mixtures and the mechanism for obtaining this information. This mechanism could be regulatory (under the Toxic Substances Control Act (TSCA), section 8(a) and/or section 8(d)), voluntary, or a combination of both and could include best management practices, third-party certification and collection, and incentives for disclosure of this information.”

In addition, the EPA requests comments on ways of minimizing reporting burdens and costs and of avoiding duplication of state and other federal agency information collections while “maximizing the data available for EPA risk characterization, external transparency, and public understanding.”

The data required to be disclosed could include identity (trade name, chemical identity, and molecular structure), quantity, and category of use, as well as studies of environmental and health effects, for each of the chemicals, mixtures, and substances used in hydraulic fracturing activities.

The ANPR identifies questions for the public to consider relating to the overall approach on the reporting and disclosure of hydraulic fracturing chemicals, who should report or disclose the information, the scope of reporting, the use of third-parties, the threshold for and frequency of reporting, data collection efficiency, health and safety studies of the chemicals used, and safer chemicals and transparency. The EPA will collect comments for 90 days, which period will not begin until the ANPR is published in the Federal Register.

This ANPR is in response to a citizen petition from Earthjustice and 114 other groups dated August 4, 2011, requesting that the EPA issue rules under the TSCA requiring toxicity testing of chemicals used in oil and gas exploration. On November 23, 2011, the EPA limited the scope of inquiry to chemicals and mixtures used in hydraulic fracturing and indicated that it would publish an ANPR identifying key issues for further discussion and analysis.

This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.