Making do under TSCA: EPA to require reporting of health data by makers of chemicals used in hydraulic fracturing

Richard Denison, Ph.D., is a Senior Scientist.

Last August, Earthjustice, Environmental Defense Fund (EDF) and over one hundred other groups recently filed a petition under the Toxic Substances Control Act (TSCA) calling on the Environmental Protection Agency (EPA) to require manufacturers and processors of chemicals used in oil and gas exploration and production (E&P chemicals) – including those used in hydraulic fracturing fluids – both to conduct testing and submit to EPA health and environmental data they already have on hand..  The aim of the petition was to ensure EPA obtains better information on the identity, production, use and health/environmental effects of these chemicals in order to evaluate their health and environmental risks.  Late last month, EPA announced its decision. 

EPA Decision on the Petition

In November, EPA partially granted the petition.  It granted the petitioners’ request that EPA develop rules requiring makers of chemicals used in hydraulic fracturing fluids to submit existing information to EPA identifying the chemicals, their intended uses, quantities produced and health or environmental exposure to or effects of the chemicals.

While this is a positive step forward, EPA denied two other aspects of our petition. EPA rejected the request to issue a rule requiring testing of these chemicals to fill data gaps because the agency lacks sufficient information to make the potential risk or high-exposure findings it is required to make under TSCA to justify a test rule.  (The high evidentiary burden EPA must meet to require testing is of course a serious limitation of TSCA and a major reason why TSCA reform is so badly needed.)  It also limited the scope of the reporting rules only to chemicals used in hydraulic fracturing, and did not include other E&P chemicals, such as those used in drilling muds, or fluids.

An Important Clarification

It is important to note that the actions called for under the TSCA petition are different from the disclosure efforts EDF and others have been pushing for on a state-by-state basis, in three respects.  First, the reporting rules will apply to manufacturers and processors of the chemicals themselves, whereas the disclosure initiatives focus on oil and gas drillers to publically disclose chemicals they add to hydraulic fracturing fluid.  Second, the EPA rules are intended to provide EPA with information sufficient to understand the potential risks of the subject chemicals at an aggregate, national level, whereas the disclosure initiatives are aimed at a local, even well-by-well scale.  Third, the EPA rules encompass information beyond just the identity of the subject chemicals to include other information about their production, use and potential health/environmental effects.  While much of the information reported to EPA under the rules can and should be made public, increasing disclosure per se is not the primary focus of our petition nor of the rules.

Next Steps

EPA’s decision is in sum welcome as an advancement of efforts to identify and reduce environmental and public health impacts from oil and gas exploration and production.  EPA plans to solicit input on the design and scope of reporting requirements as well as the process by which information is “aggregated and disclosed to maximize transparency and public understanding.”  Through these processes, EDF, Earthjustice and other petitioners can argue for EPA to make enhancements “to ensure that the health and environmental risks posed by E&P chemicals are fully understood,” as we stated in the TSCA petition.

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