Richard Denison, Ph.D., is a Lead Senior Scientist.
Nearly two-and-a-half years after the U.S. Environmental Protection Agency partially granted a petition filed under the Toxic Substances Control Act (TSCA) by EDF, Earthjustice, and 114 other groups calling for a rulemaking to require companies that make or process chemicals used in oil and gas production, the agency finally responded today.
This morning EPA issued what’s known as an Advanced Notice of Proposed Rulemaking (ANPRM) seeking public input on “the information that should be reported or disclosed for hydraulic fracturing chemical substances and mixtures and the mechanism for obtaining this information.” A 90-day comment period will start once the notice is published in the Federal Register next week.
What Today’s Announcement Means
The process that begins with today’s announcement is directed to manufacturers and processors of fracking chemicals and would call on them to report to EPA health- and safety-related data they have on those chemicals. Notably, it would apply not only to the presently undisclosed chemicals used in these operations, but also to hundreds of substances whose use in fracking is already widely reported, but for which little or no health or environmental safety data are available.
This effort is distinct from others aimed at drilling companies and well operators, which seek to reveal what materials are going down a well, but don’t indicate what their potential effects might be.
While much of the health and environmental effects data EPA would receive could become public and hence would complement and add valuable information to disclosure efforts, the main aim is to ensure EPA has information sufficient to understand the potential risks of the subject chemicals at an aggregate, national level.
It’s also worth noting that not all of the data reported to EPA would necessarily become available to the public; under the Toxic Substances Control Act, companies can claim certain information constitutes confidential business information, in which case EPA cannot disclose it to the public. That is, the agency would know but we would not.
A Long Road Ahead
This is only the first baby step toward initiating the rulemaking process EPA said it would undertake. EPA intends to use input it receives during the comment period to decide both how and what information should be reported.
The original petition asked the agency to require companies that make or process chemicals used in oil and gas production to: a) report basic production, processing and available health and safety information on those chemicals, and b) conduct testing to fill data gaps in the available information. In November, 2011, EPA granted the first part but denied the second, and limited the scope to just chemicals used in hydraulic fracturing. EPA said it would issue the ANPRM, and begin a stakeholder process – both of which would be used to solicit input as to the scope of the reporting rules.
It’s unfortunate that this process has taken so long, as it addresses a critical need to ensure the safety of chemicals used in fracking. It will be essential that the public engage in the development of EPA’s reporting system to ensure it delivers the needed information to EPA and maximizes public access to that information.