EPA to Regulate Fracing Substances under the Toxic Substances Control Act

12/07/2011

EPA recently made an announcement of interest to those in the oil field services sector as well as in the energy sector itself. On November 23, the agency announced that it was granting in part a petition by Earthjustice to initiate rulemaking under the Toxic Substances Control Act (TSCA), relating to chemical substances and mixtures used in oil and gas exploration or production.

Earthjustice had asked EPA to initiate broad rulemaking regarding substances used in exploration and production activities generally and to require testing in addition to reporting and recordkeeping. The agency decided against granting the petition as it related to testing, but decided to grant it as regards record keeping and reporting, though, for the present, confining its grant to chemicals used in hydraulic fracturing, or fracing, rather than in E&P activities generally.

The agency is granting the request with regard to TSCA section 8(a) relating to reports, applicable to manufacturers and processors, and section 8(d) relating to health and safety studies, applicable to distributors as well as manufacturers and processors. Below is the reference on the agency's website providing background information.

November 23, 2011 – EPA received a petition from Earthjustice and 120 other groups on August 4, 2011, requesting that EPA issue TSCA section 4 and 8 rules requiring toxicity testing and reporting of health and safety studies on oil and gas exploration and production chemicals. Read the petition and EPA’s acknowledgement. On November 2, 2011, EPA notified the petitioners that the Agency is continuing its review of the petition’s requests related to health and safety reporting and intends to conclude that review no later than November 23, 2011. EPA informed the petitioners that the Agency is not granting the request to require toxicity testing because the petition does not satisfy the required TSCA statutory requirements for additional testing. The Agency’s response can be found here. On November 23, 2011, EPA notified the petitioners that the Agency is partially granting the TSCA section 8(a) and 8(d) requests and will initiate a dialogue process to seek public input on the design and scope of TSCA reporting requirements. Read the Agency's response.

EPA has indicated it will be publishing an advanced notice of proposed rulemaking, which you may wish to track.

Please feel free to contact us if you have any questions regarding these matters. You may also view the alert in the PDF linked below.

PDF - EPA_to_Regulate_Fracing_Substances.pdf

Jeff Civins
512.867.8477
jeff.civins@haynesboone.com

Carie McKinney
512.867.8438
carie.mckinney@haynesboone.com

Mary Mendoza
512.867.8418
mary.mendoza@haynesboone.com

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