Chemical Makers, Energy Companies Tell EPA Not to Mandate Fracking Fluid Disclosure

By Pat Rizzuto

Sept. 25 — Chemical makers and energy companies have told the Environmental Protection Agency there is no need for it to require them to report information about the chemicals used for hydraulic fracturing fluids.

“The American Petroleum Institute does not think that this Toxic Substances Control Act rulemaking is necessary in light of the extensive information already available to EPA and the public, and the scope and purpose of TSCA,” API said in comments submitted to the agency Sept. 18.

State agencies and water authorities voiced a range of views on that question. Public health laboratories and environmental advocates told the EPA mandating disclosure will help protect the public and environment.

The EPA has not proposed a regulation. In a May 19 advance notice of proposed rulemaking (ANPR), the agency asked interested parties to comment on whether a program to obtain information on chemicals used for hydraulic fracturing should be voluntary or mandatory and what its appropriate scope should be.

The comment period has closed, and as of Sept. 25 the agency had posted more than 100,000 comments, with tens of thousands generated through email and other campaigns.

The high level of interest, rare for a TSCA regulation, illustrates the support for and concern about the vast energy reserves that can be accessed through hydraulic fracturing and horizontal drilling.

Natural gas from previously untapped shale deposits has sparked a renaissance in chemical manufacturing that could help improve the U.S. trade deficit, according to the American Chemistry Council. Chemical companies from around the world are launching new U.S. manufacturing ventures valued at $71.7 billion, the ACC said in a May 2013 report, “Shale Gas, Competitiveness, and New US Chemical Industry Investment.”

Other Federal Activities

The EPA's request for comments augments other federal activities already under way addressing hydraulic fracturing.

On Aug. 26, the Bureau of Land Management, an Interior Department agency, sent final regulations for hydraulic fracturing on federal lands and Indian country to the White House Office of Management and Budget for interagency review. The regulations will focus on wellbore integrity, fracking fluid chemical disclosure and issues related to flowback water, the water that comes out of a well along with oil or natural gas.

By the end of 2014, the EPA's Office of Research and Development is expected to release a long-awaited report on the risks fracturing may pose to drinking water.

Shale gas extraction already is regulated extensively, the American Petroleum Institute (API), the American Fuel & Petrochemical Manufacturers and the American Chemistry Council told the EPA in comments submitted on the ANPRM.

A July 14 API report charts provisions of federal environmental and occupational safety laws and regulations that apply during various steps in the hydraulic fracturing process and gives examples of state requirements.

State Regulations

“States have broad authority to regulate, permit and enforce all activities related to oil and natural gas production, including the drilling and fracture of the well, production operations, management and disposal of wastes, and closure and plugging of the well,” the chemistry council said.

“Every state with significant ongoing or potential unconventional oil and gas production has requirements for disclosure of chemicals used in hydraulic fracturing,” it added.

“Unless and until it [the EPA] can articulate a need for information that is not duplicative of information it already possesses or to which it has access, EPA should not proceed further with any of the activities contemplated by the ANPR,” the chemistry council said.

State, Tribal Opposition to Rule

Some states and one tribe agreed that an EPA rule is not needed.

Wyoming requires the oil and gas industry to provide detailed information to the state's Oil and Gas Conservation Commission before and after companies engage in hydraulic fracturing, Gov. Matthew Mead (R) said.

“Wyoming is already appropriately regulating in this area and objects to any additional federal regulation that is either unnecessary or duplicative,” the governor continued.

The Southern Ute Indian Tribe, whose 1,059-square-mile reservation is located in Southwestern Colorado, and which operates oil and gas wells on and off the reservation, told the EPA “there is no need for an additional reporting requirement under the Toxic Substances Control Act.”

The EPA's request for comments came in response to a rulemaking petition filed in 2011, before states had implemented the array of reporting requirements that are now in force, and before the widespread use of the FracFocus website for chemical disclosure, the tribe said. FracFocus is managed by the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission, two state-agency-based organizations with conservation, environmental and energy-development missions.

Other State Voices

By contrast, New York state and Portage County, Ohio, urged the EPA to mandate reporting.

“Voluntary reporting is always insufficient, either because corporations must accept the loss of some profit or because firefighters or first responders dealing with a chemical emergency cannot be expected to engage with materials and consequences they cannot identify and thus cannot predict,” said the Portage County Board of Commissioners.

New York Attorney General Eric Schneiderman said about 20 states have issued or proposed final regulations or laws requiring some sort of disclosure of hydraulic fracturing chemicals.

An EPA rule would provide consistency and a minimum standard that state disclosure regulations would have to meet, he said.

Schneiderman urged the EPA to take a broad approach in crafting a federal hydraulic fracturing chemical disclosure rule. It should apply to chemical manufacturers, processors, well operators and companies providing services to fracturing operations, he said.

“Companies should be required to report the identity of all raw constituent chemicals of hydraulic fracturing fluids or mixtures, in descending order of overall concentration, without identifying the recipe for any proprietary product,” Schneiderman said.

Water Sector Perspectives

Water utilities and regulators voiced a range of views on the need for an EPA chemical reporting mandate.

The Ground Water Protection Council, which represents state ground water regulatory agencies, pointed to information its members already have provided the EPA and their willingness to submit more if requested.

“It is our position that the ANPR would result in a duplicative and unnecessary submission of chemical information and, as such, should not be pursued,” the water council said.

The Ohio River Valley Water Sanitation Commission, which represents eight states and the Metropolitan Sewer District of Greater Cincinnati, urged the EPA to mandate reporting.

The public water suppliers located downstream of prolific hydraulic fracturing must have reliable, accurate and instantaneous access to information on contaminants that could threaten drinking water, the commission said. The information also will help water utilities ensure proper treatment strategies are in place, it said.

The Metropolitan Sewer District of Greater Cincinnati referred to a July incident in which fracking-related chemicals spilled into Opossum Creek, a tributary to the Ohio River, killing thousands of fish.

“It became evident that current voluntary reporting practices by the fracking industry do not adequately ensure that drinking water utilities will have timely access to information on the chemicals spilled,” the Cincinnati district said.

The data the EPA would collect should be maintained for at least 20 years, the sewer district said. By contrast, FracFocus maintains records for only three years, it said.

Public Health Laboratories

The Association of Public Health Laboratories pointed to concerns about chemical spills in general, including a January spill of 4-methylcyclohexane methanol into West Virginia's Elk River.

It took days for officials to realize that polyglycol ethers also were part of the spill, because laboratories did not know to test for them, the association said.

“EPA should require the collection and reporting of baseline data on the conditions of nearby air, soil and water resources prior to the introduction of fracturing chemicals or mixtures, including those materials introduced to improve the function or productivity of the well,” the association said.

“In this way, environmental laboratories will be able to determine the existence of extent of any adverse impact on the surrounding environment from the use of hydraulic fracturing chemicals.”

Environmental Organizations

Many environmental organizations, including the Environmental Defense Fund, Trout Unlimited, the Chicago Environmental Justice Network and the Center for Biological Diversity, also supported the EPA's establishment of a mandatory chemical use reporting system.

Neither state regulations nor BLM's expected final regulation raise significant concerns about duplicative requirements, wrote the Environmental Defense Fund.

While such chemical disclosure rules provide some well-site information, there is no certified national list of chemicals used in hydraulic fracturing and no compiled resources to identify available health and safety studies, EDF said.

EPA compilation of that information would complement state efforts and the Bureau of Land Management regulation, it said.

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

Comments submitted to the EPA are marked Docket No. EPA-HQ-OPPT-2011-1019, and they are available at http://www.regulations.gov/.