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July 30, 2013
TSCA rules possible for fracking chemicals

In response to a petition from 115 organizations, the EPA has agreed to initiate rulemaking to require that manufacturers and processors of exploration and production (E&P) chemicals used in hydraulic fracturing provide data on their products.  But the actions the EPA has agreed to are outweighed, in terms of burdens placed on industry, by the parts of the petition the Agency has denied. 

Most importantly, the Agency denied the petitioners’ request for a rule that would require regulated entities to develop test data to evaluate the toxicity of all E&P chemicals and chemical mixtures they manufacture and process.

Petition covered all E&P chemicals

The petition was submitted in August 2011 under Section 21 of the Toxic Substances Control Act (TSCA), which allows any person to petition the EPA to initiate a rulemaking for the issuance, amendment, or repeal of a rule under TSCA Sections 4, 6, or 8.  Section 21 also requires that the petitioners provide the facts they believe support the necessity for the action requested.  The EPA responded to the petitioners in November 2011.  In a recent notice, the Agency explains that it found parts of the petition were too general to justify rulemaking.

The Agency’s responses to three parts of the petition are summarized as follows:

  • Adopt a rule pursuant to TSCA Section 4 to require manufacturers and processors of E&P chemical substances and mixtures to develop test data sufficient to evaluate the toxicity and potential for health and environmental impacts of all E&P chemical substances and mixtures that they manufacture and process. The petitioners requested that the rule include a requirement for the manufacturer or processor to identify any E&P chemical substance and mixture for which testing is required.
    The EPA denied this request because the petitioners did not demonstrate that information in the Agency’s possession is insufficient to permit a reasoned evaluation of the health and environmental effects of all E&P chemicals or that testing is necessary to develop such information.  The EPA adds that the petition failed to show that any individual chemical was produced in “substantial quantities” (which the EPA generally interprets as at least 1 million pounds annually).  Nor did the petition show that all E&P chemicals may present an unreasonable risk, says the Agency.
  • Adopt a rule under Section 8(a) to require disclosure of the identities, categories, and quantities of all E&P chemicals and mixtures.
    This request was partially denied.  The Agency said it found this part of the petition to be overly broad, covering uses of the chemicals outside E&P.  However, the Agency said it believes that a Section 8(a) rule could significantly advance the government’s understanding of the potential risks associated with hydraulic fracturing.  The EPA states that it will need a better understanding of the incremental value of individual information elements before proposing a Section 8(a) rule specific to the E&P industry.
  • Adopt a rule under Section 8(d) to require submittal of all existing, not previously reported health and safety studies related to the health and/or environmental effects of all E&P chemicals and mixtures.
    This request was partially denied.  The EPA says a broad Section 8(d) rule covering all E&P chemicals is neither needed nor appropriate at this time.  However, the EPA states that it intends to write a proposal regarding the submission of unpublished health and safety studies and lists of ongoing and initiated studies from companies manufacturing (including importing), processing, and distributing certain chemicals and mixtures used in hydraulic fracturing. 

     

    The EPA adds that it plans to summarize the information it has already collected on chemicals and mixtures used in hydraulic fracturing to identify and prioritize gaps for further investigation.  

    EPA’s responses to the petition were published in the July 11, 2013, FR.

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