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Steptoe & Johnson PLLC: U.S. EPA Moves Forward with Potential TSCA Rulemaking Regarding Hydraulic Fracturing

By Armando F. Benincasa, Member

The public comment period for USEPA’s Advance Notice of Proposed Rulemaking regarding hydraulic fracturing chemicals and mixtures and potential regulation pursuant to the Toxic Substances Control Act (TSCA) came to a conclusion on September 18, 2014 and sets the stage for a final decision by the agency as to whether it will move forward with potential rule-making under TSCA to regulate the disclosure of chemicals and mixtures used in the hydraulic fracturing process.

USEPA concluded its final webinar regarding the advanced notice on September 3, 2014, addressing the potential impacts of a future rule-making and what factors it may consider in making a determination as to whether a rule is needed. 

All these actions stem from the submittal of a petition on August 4, 2011,by various environmental groups pursuant to Section 21 of TSCA requesting that USEPA undertake rule-making pursuant to Sections 4, 8(a), and 8(d) of TSCA focusing on the disclosure of and maintenance of information regarding chemicals used in the hydraulic fracturing process.

In response to the petition, USEPA filed a notice of its intent to publish an Advance Notice of Proposed Rulemaking (ANPR) to identify key issues in question, commence a public participation process, and make a final determination if formal rulemaking is needed. The ANPR requests comment on what information should be required to be reported or disclosed regarding hydraulic fracturing chemical substances and mixtures and how that information should be obtained.

The potential for regulation under TSCA would likely result in yet another layer of now federal regulatory requirements over top existing state requirements regarding the disclosure of chemicals used in the hydraulic fracturing process. Over the past five to ten years, most oil and gas producing states have already passed comprehensive legislation balancing the rights of the general public to know what chemicals are being used in the hydraulic fracturing process and the need for businesses to protect their trade secrets.

Many states utilize FracFocus as a clearing house of sorts for the public reporting and disclosure of chemicals used in the fracturing process and others maintain state specific requirements for the submittal of such information to the states. FracFocus is managed by the Ground Water Protection Council and Interstate Oil and Gas Compact Commission, two organizations whose missions both revolve around conservation and environmental protection.

A formal decision by USEPA as to whether to pursue formal rulemaking pursuant to TSCA is not anticipated for a few months.

about Armando F. Benincasa

Armando Benincasa concentrates his practice in the areas of energy law, environmental law, environmental litigation, administrative law, government affairs and lobbying.

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