Energy & Environmental Law Adviser

USEPA Takes First Step Toward Possible Federal Regulation of Hydraulic Fracturing

Posted in Land/Waste

On May 9th the United States Environmental Protection Agency (USEPA) initiated a process that may result in federal regulation of the fluids used in hydraulic fracturing (fracking).  In the past 10 years, United States production of oil and gas has skyrocketed, due in part to the increased use of fracking technologies that use highpressure injection of fluids, sand, and chemicals to stimulate the release of oil and gas from geological formations which were difficult to access with other techniques.  While fracking technologies have been in use for some time, environmentalists have argued that the public lacked adequate information to assess whether chemicals used in fracking posed represented threats to human health or the environment.

Last Friday, the USEPA issued an Advance Notice of Proposed Rulemaking under Section 8 of the Toxic Substances Control Act (TSCA) soliciting comment on whether companies must publicly disclose the chemicals used in the fracking process.  The notice starts the public participation process and seeks comment on

  • The types of chemical information that could be reported under TSCA;
  • The regulatory and non-regulatory approaches to obtain information on chemicals and mixtures used in hydraulic fracturing activities;
  • Whether fracking-related chemicals should be regulated through a voluntary mechanism under the Pollution Prevention Act of 1990.

According to the USEPA, this process will help inform its efforts to facilitate transparency and public disclosure of chemicals used during hydraulic fracturing and will not duplicate existing reporting requirements.  James Jones, the USEPA’s assistant administrator for the Office of Chemical Safety and Pollution Prevention, said that the “EPA looks forward to hearing from the public and stakeholders about public disclosure of chemicals used during hydraulic fracturing, and we will continue working with our federal, state, local, and tribal partners to ensure that we complement but not duplicate existing reporting requirements.”

The notice includes a list of questions to be considered by stakeholders and the public in formulating their comments.  The USEPA anticipates that the notice will publish in the Federal Register by the week of May 19, 2014.  The comment period closes 90 days after publication in the Federal Register.  When published, comments may be submitted through regulations.gov with reference to docket ID number EPA-HQ-OPPT-2011-1019.

The Prepublication Copy Notice can be found at http://www.epa.gov/oppt/chemtest/pubs/prepub_hf_anpr_14t-0069_2014-05-09.pdf and more information from the USEPA on hydraulic fracturing can be found at http://www2.epa.gov/hydraulicfracturing