The EPA may be closing in on a decision on whether to add the oil and gas (O&G) extraction sector to the list of industries that must report under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), better known as the Toxics Release Inventory (TRI).  The absence of this sector from TRI industries has been a thorn in the side of environmental groups; this prompted 16 such groups to submit a lengthy petition to the EPA in October 2012 asking that the addition be made.  The EPA recently gave public notice of receipt of the petition (January 3, 2014, FR) without requesting public comment on it. 

Listing criteria

The petitioners note that the TRI, as originally established by Congress, focused on the manufacturing sectors.  But Congress also gave the EPA the authority to add new industry groups.  Subsequently, the EPA articulated the following three criteria that would qualify a sector for inclusion in the TRI program:

• Whether TRI-listed chemicals are reasonably anticipated to be present at facilities in the candidate industry group;
• Whether the facilities manufacture, process, or otherwise use these chemicals; and
• Whether the facilities can reasonably be anticipated to increase the information made available pursuant to the TRI or otherwise further its purposes.

In 1996 and 1997, the EPA made use of these criteria to add several sectors to the TRI list.  The Agency also considered O&G extraction but, according to the petitioners, deferred any final action because of technical questions about defining facilities for reporting. 

30 percent of all HAPs

The petitioners argue that O&G extraction clearly satisfies each criterion.  Specifically, they say that “a great number” of TRI-listed chemicals are reasonably anticipated to be present at O&G facilities, including common hazardous air pollutants (HAPs), such as toluene, hexane, and benzene.  Also, hydraulic fracturing uses substances containing at least 45 TRI-listed chemicals, state the groups. 

Moreover, the petitioners say, the industry emits HAPs via well completions, leaks, flares, and processing and injects millions of gallons of liquids containing fracking chemicals into wells, surface waters, and landfills.  “By EPA estimates, the industry emits roughly 127,000 tons of HAPs per year, which is more than any other TRI-reporting industry – except electric utilities – and equivalent to almost 30 percent of all 2010 TRI-reported air releases,” claim the petitioners.

Regarding the third criterion, the petitioners say that there are currently no adequate federal disclosure requirements about these releases.  They add that state disclosure laws are encumbered by trade secret protections, and none approach the public accessibility of the TRI.

“Since the last occasion on which EPA considered its addition to the TRI, the [O&G extraction] industry has grown vastly, but regulation, disclosure, and public information have not kept pace,” the petitioners write.  “Consequently, the oil and gas extraction industry warrants listing now more than ever, and EPA must take action and finally add the industry to coverage under the TRI.”

Low risk?

Advocates for O&G have long pushed back against any addition of the sector to the TRI list of industries.  Traditionally, they have emphasized that the TRI is intended to provide information about toxic releases that may actually pose a risk to the public.  But the kinds of chemicals that concern the environmental petitioners are injected deep below O&G reservoirs and pose no risk to the public, industry contends.  Advocates add that O&G operations are usually in remote, rural areas or far offshore, miles from the nearest community. 

Should the EPA initiate rulemaking to add O&G extraction to the TRI, it will be interesting to see if the industry will continue these arguments in light of the breathtaking expansion of onshore gas extraction and hydraulic fracturing.

The 2012 petition is at www.regulations.gov in docket EPA-HQ-TRI-2013-0281.