The EPA is exploring use of its authority under the Toxic Substances Control Act (TSCA) to require companies that manufacture, sell, or inject chemicals used in hydraulic fracturing to provide the Agency with information, including the identity, of those chemicals. 

As part of its preliminary work, the EPA is requesting public comments on the information that should be reported or disclosed, as well as ways to minimize reporting burdens.  Comments are being requested on the use of TSCA Section 8 to require reporting, a possible combination of required and voluntary reporting, and the use of incentives to promote substitution of safer alternative chemicals in fracking.

2011 petition

This potential rulemaking process was triggered by a 2011 petition from Earthjustice and 114 other groups that petitioned the EPA to issue TSCA Section 4 and Section 8 rules requiring toxicity testing of chemicals and mixtures used in oil and gas (O&G) exploration and production; reporting to the EPA, among other things, the identify of those chemicals and mixtures; and submitting to the EPA health and safety studies on the chemicals and mixtures.  The EPA denied the TSCA Section 4 request for issuance of a test rule.  However, the Agency granted in part and denied in part the TSCA Sections 8(a) and 8(d) requests by limiting the scope from chemicals used in all processes of O&G exploration and production to chemicals and mixtures used in hydraulic fracturing.

Section 8(a)

TSCA Section 8(a) authorizes the EPA to promulgate rules under which manufacturers (including importers) and processors of chemical substances must maintain records and submit information as the EPA may reasonably require.  Types of information the EPA may require include the common or trade name, the chemical identity, and the molecular structure of each chemical substance or mixture for which such a report is required; the categories or proposed categories of use of each chemical substance or mixture; and the total amount of each chemical substance or mixture manufactured or processed.

Section 8(d)

TSCA Section 8(d) authorizes the EPA to require the submission of lists of health and safety studies conducted or initiated by or for, or known to or reasonably ascertainable by, manufacturers, processors, and distributors (and any person who proposes to manufacture, process, or distribute) of any chemical substance or mixture.  Examples of health and safety studies include epidemiological or clinical studies, studies of occupational exposure, health effects studies, ecological effects studies, and assessments of environmental exposure.

Trade secrets

Much of the controversy surrounding hydraulic fracturing focuses on claims by manufacturers, distributors, and injectors that the identity of chemicals of concern to advocates of the environment and public health is confidential business information (CBI) that cannot be made publicly available without damaging the competitive position of the companies.  Accordingly, the EPA is requesting comment specifically on whether and how data claimed to be CBI could be reported to the EPA (or a third-party certifier) and then aggregated and disclosed while protecting the identities of individual products and firms.  The U.S. Bureau of Land Management (BLM) has proposed a rule to require the disclosure of chemicals used in hydraulic fracturing on public land.

Public comments are also being solicited for a potential EPA-sponsored voluntary initiative, wherein the Agency could provide resources and recognition for companies that commit to the development and use of safer chemicals (both those created deliberately and inadvertently) in hydraulic fracturing.  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, says the EPA.

EPA’s advance notice of proposed rulemaking on hydraulic fracturing chemicals and mixtures