Hydraulic Fracturing Chemicals and Mixtures, 28664-28670 [2014-11501]
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Federal Register / Vol. 79, No. 96 / Monday, May 19, 2014 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Chapter I
[EPA–HQ–OPPT–2011–1019; FRL–9909–13]
RIN 2070–AJ93
Hydraulic Fracturing Chemicals and
Mixtures
Environmental Protection
Agency (EPA).
ACTION: Advance notice of proposed
rulemaking.
AGENCY:
In its response to a citizen
petition submitted under section 21 of
the Toxic Substances Control Act
(TSCA), EPA indicated that as a first
step, it would convene a stakeholder
process to develop an approach to
obtain information on chemical
substances and mixtures used in
hydraulic fracturing. To gather
information to inform EPA’s proposal,
the Agency is issuing this advance
notice of proposed rulemaking (ANPR)
and initiating a public participation
process to seek comment on the
information that should be reported or
disclosed for hydraulic fracturing
chemical substances and mixtures and
the mechanism for obtaining this
information. This mechanism could be
regulatory (under TSCA section 8(a)
and/or section 8(d)), voluntary, or a
combination of both and could include
best management practices, third-party
certification and collection, and
incentives for disclosure of this
information. In addition, the Agency is
seeking comment on ways of
minimizing reporting burdens and costs
and of avoiding the duplication of state
and other federal agency information
collections, while at the same time
maximizing data available for EPA risk
characterization, external transparency,
and public understanding. Also, EPA is
soliciting comments on incentives and
recognition programs that could be used
to support the development and use of
safer chemicals in hydraulic fracturing.
DATES: Comments must be received on
or before August 18, 2014.
ADDRESSES: Submit your comments,
identified by docket identification (ID)
number EPA–HQ–OPPT–2011–1019, by
one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• Mail: Document Control Office
(7407M), Office of Pollution Prevention
and Toxics (OPPT), Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW., Washington, DC 20460–0001.
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SUMMARY:
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• Hand Delivery: To make special
arrangements for hand delivery or
delivery of boxed information, please
follow the instructions at https://
www.epa.gov/dockets/contacts.html.
Additional instructions on
commenting or visiting the docket,
along with more information about
dockets generally, is available at
https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
For technical information contact:
Mark Seltzer, Chemical Control Division
(7405M), Office of Pollution Prevention
and Toxics, Environmental Protection
Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460–0001; telephone
number: (202) 564–2901; email address:
seltzer.mark@epa.gov.
For general information contact: The
TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCA-Hotline@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This action is directed to the public
in general. This action, however, may be
of interest to you if you manufacture
(including import), process, or
distribute chemical substances or
mixtures (Ref. 1) used in any type or
method of hydraulic fracturing. This
may include businesses that fall under
North American Industry Classification
System (NAICS) codes 2111 (oil and gas
extraction) and/or 2131 (support
activities for mining). EPA anticipates
that this ANPR may also be of interest
to states, tribes, and other industries.
Since additional entities may also be
interested, the Agency has not
attempted to describe all the specific
entities that may be interested in this
action.
B. What should I consider as I prepare
my comments for EPA?
1. Submitting confidential business
information (CBI). Do not submit this
information to EPA through
regulations.gov or email. Clearly mark
the part or all of the information that
you claim to be CBI. For CBI
information in a disk or CD–ROM that
you mail to EPA, mark the outside of the
disk or CD–ROM as CBI and then
identify electronically within the disk or
CD–ROM the specific information that
is claimed as CBI. In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
contain the information claimed as CBI
must be submitted for inclusion in the
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public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
2. Tips for preparing your comments.
When submitting comments, remember
to:
i. Identify the document by docket ID
number and other identifying
information (subject heading, Federal
Register date and page number).
ii. Follow directions. The Agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
iii. Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
iv. Describe any assumptions and
provide any technical information and/
or data that you used.
v. If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced. Likewise,
if you estimate the universe of affected
reporters, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
vi. Provide specific examples to
illustrate your concerns and suggest
alternatives.
vii. Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
viii. Make sure to submit your
comments by the comment period
deadline identified.
II. Background
EPA received a petition from
Earthjustice and 114 other groups on
August 4, 2011, requesting that EPA
issue TSCA section 4 and TSCA section
8 rules requiring toxicity testing of
chemicals and mixtures used in oil and
gas exploration and production;
reporting to EPA, among other things,
the identity of those chemicals and
mixtures; and submitting to EPA health
and safety studies on the chemicals and
mixtures (Ref. 2). On November 2, 2011,
EPA provided an initial response to the
petition (Ref. 3). In that response, EPA
denied the TSCA section 4 request for
issuance of a test rule because the
petition did not set forth sufficient facts
to conclude that it was ‘‘necessary to
issue’’ the requested TSCA section 4
rule, as required by TSCA section
21(b)(1). On November 23, 2011, EPA
granted in part and denied in part the
TSCA section 8(a) and section 8(d)
requests by limiting the scope from
chemicals and mixtures used in all
processes of oil and gas exploration and
production to chemical substances and
mixtures used in hydraulic fracturing
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(Refs. 4 and 5). EPA published a
document with the Agency’s rationale
for its response to the petition in the
Federal Register of July 11, 2013 (Ref.
5). To facilitate public comment, the
Agency stated its intent to publish an
ANPR to identify key issues for further
discussion and analysis.
EPA maintains continuing
coordination with its Federal partners in
planning information reporting rules
that will complement the Bureau of
Land Management’s (BLM) proposed
regulation: Oil and Gas; Hydraulic
Fracturing on Federal and Indian Lands
(78 FR 31636, May 24, 2013). BLM
subsequently issued a supplemental
proposal and extension of comment
period for that proposed rule (78 FR
34611, June 10, 2013). The intent of
these dialogues is to ensure both EPA’s
and BLM’s efforts provide useful
information for assessment and
disclosure purposes, while not overly
burdening reporting entities.
A. What action is the Agency taking?
With this ANPR, EPA is initiating a
stakeholder process to request input on
various aspects of obtaining information
on chemical substances and mixtures
used in hydraulic fracturing for oil and
gas exploration and production to
further the purposes of TSCA (TSCA
section 2 sets forth the findings, policy,
and intent of Congress in enacting
TSCA) and other federal government
objectives that can be informed through
this process. As part of this effort, EPA
seeks input on appropriate disclosure to
ensure that information about the
chemicals and mixtures used in
hydraulic fracturing activities is
provided to the public in a transparent
fashion. These activities include the
injection of water, chemicals, proppant,
and/or tracers to prepare geologic
formations for hydraulic fracturing,
complete a hydraulic fracturing
stimulation stage, evaluate the extent of
resulting fractures, or ensure future
ability to continue enhancement of
production through stimulation by
hydraulic fracturing. During each
hydraulic fracturing stimulation stage,
pressurized fluids containing carrier
fluids such as water or gas and any
combination of proppant and chemicals
are injected into wells to fracture
portions of the formation surrounding a
selected well section. As discussed in
more detail in Unit IV., EPA is
requesting comment on the information
that should be obtained or disclosed and
the mechanism for obtaining or
disclosing this information about
chemicals and mixtures used in
hydraulic fracturing. This mechanism
could be regulatory (under TSCA
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section 8(a) and/or section 8(d)),
voluntary (e.g., under the Pollution
Prevention Act (PPA) (42 U.S.C. 13101
et seq.)), or a combination of both. EPA
is also seeking comment on best
management practices for the
generation, collection, reporting and/or
disclosure of public health and
environmental information from or by
companies that manufacture, process, or
use chemical substances or mixtures in
hydraulic fracturing activities—that is,
practices or operations that can be
implemented and verified toward
achieving protection of public health
and the environment—and whether
voluntary third-party certification, and
incentives for disclosure could be
valuable tools for improving chemical
safety. In addition, the Agency is
seeking comment on ways to minimize
reporting burdens and costs, avoid
duplication of efforts, and maximize
transparency and public understanding.
Finally, EPA is soliciting comments on
incentives and recognition programs
that could be used to support the
development and use of safer chemicals
in hydraulic fracturing.
B. What is the Agency’s authority for
this action?
TSCA section 8(a) (15 U.S.C. 2607(a))
authorizes EPA to promulgate rules
under which manufacturers (including
importers) and processors of chemical
substances must maintain records and
submit information as the EPA
Administrator may reasonably require.
TSCA section 8(a) also authorizes EPA
to promulgate rules under which
manufacturers and processors of
mixtures must maintain records and
submit information to the extent the
EPA Administrator determines the
maintenance of records or submission of
reports, or both, is necessary for the
effective enforcement of TSCA. TSCA
section 8(a) generally excludes small
manufacturers and processors of
chemical substances or mixtures from
the reporting requirements (see 15
U.S.C. 2507(a)). This general exclusion
has been codified at 40 CFR 704.5 and
712.25. However, EPA is authorized by
TSCA section 8(a)(3)(A)(ii) to require
TSCA section 8(a) reporting from small
manufacturers and processors with
respect to any chemical substance or
mixture that is the subject of a rule
proposed or promulgated under TSCA
section 4, 5(b)(4), or 6, or that is the
subject of an order in effect under TSCA
section 5(e), or that is the subject of
relief granted pursuant to a civil action
under TSCA section 5 or 7. TSCA
section 8(a) also notes that, to the extent
feasible, the EPA Administrator must
not require reporting under TSCA
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section 8(a)(1) that is unnecessary or
duplicative.
TSCA section 8(d) (15 U.S.C. 2607(d))
authorizes EPA to require the
submission of lists of health and safety
studies conducted or initiated by or for,
or known to or reasonably ascertainable
by manufacturers, processors, and
distributors of (and any person who
proposes to manufacture, process, or
distribute) any chemical substance or
mixture. Certain types or categories of
studies may be excluded ‘‘if the
Administrator finds that submission of
lists of such studies are unnecessary to
carry out the purposes of [TSCA]’’ (see
TSCA section 8(d)(1)). TSCA section
8(d) also authorizes EPA to require the
submission of copies of studies on these
lists or copies of studies that are
otherwise known by the person
submitting the list.
The Pollution Prevention Act (PPA)
(42 U.S.C. 13101 et seq.) makes
pollution prevention the national policy
of the United States. The PPA identifies
an environmental management
hierarchy in which pollution ‘‘should be
prevented or reduced whenever feasible;
pollution that cannot be prevented
should be recycled in an
environmentally safe manner, whenever
feasible; pollution that cannot be
prevented or recycled should be treated
in an environmentally safe manner
whenever feasible; and disposal or
release into the environment should be
employed only as a last resort . . .’’ (42
U.S.C. 13103). Among other
requirements, the PPA directs EPA to
develop improved methods of
coordinating, streamlining and assuring
public access to data collected under
Federal environmental statutes;
facilitate the adoption of sourcereduction techniques by businesses; and
establish an annual awards program to
recognize a company or companies that
operate outstanding or innovative
source reduction programs.
III. Overview of Information Collection
Authority Under Sections 8(a) and 8(d)
of TSCA
A. TSCA Section 8(a)
TSCA section 8(a) gives EPA authority
to require, by rulemaking, chemical
manufacturers and processors to
maintain records and submit to EPA
such reports as EPA may reasonably
require, including reports concerning
the following, insofar as it is known to
or reasonably ascertainable by the
person making the report:
• The common or trade name, the
chemical identity, and the molecular
structure of each chemical substance or
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mixture for which such a report is
required.
• The categories or proposed
categories of use of each chemical
substance or mixture.
• The total amount of each chemical
substance or mixture manufactured or
processed, reasonable estimates of the
total amount to be manufactured or
processed, the amount manufactured or
processed for each of its categories of
use, and reasonable estimates of the
amount to be manufactured or
processed for each of its categories of
use or proposed categories of use.
• A description of the byproducts
resulting from the manufacture,
processing, use, or disposal of each
chemical substance or mixture.
• All existing data concerning the
environmental and health effects of each
chemical substance or mixture.
• The number of individuals exposed,
and reasonable estimates of the number
who will be exposed, to each chemical
substance or mixture in their places of
employment and the duration of such
exposure.
• The manner or method of disposal
of each chemical substance or mixture,
and any subsequent changes to such
manner or method.
B. TSCA Section 8(d)
TSCA section 8(d) authorizes EPA to
require manufacturers, processors, and
distributors of any chemical substance
or mixture and persons who propose to
manufacture, process, or distribute in
commerce any chemical substance or
mixture to submit health and safety
studies to EPA. Examples of health and
safety studies can be found in 40 CFR
716.3, and include:
• Epidemiological or clinical studies.
• Studies of occupational exposure.
• Health effects studies.
• Ecological effects studies.
• Assessments of environmental
exposure.
• Environmental fate studies.
• Health and safety studies related to
surface or ground water sampling and
analyses that are aggregated and
analyzed to measure exposure.
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IV. Request for Comment
EPA is requesting comment on the
design and scope of potential regulatory
or voluntary approaches, or
combination of both approaches, to
obtain information on chemical
substances and mixtures used in
hydraulic fracturing. EPA invites
comments on all aspects of this ANPR,
including the description of hydraulic
fracturing activities presented in Unit
II.A. Comments should provide enough
detail and contain sufficient supporting
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information in order for the Agency to
understand the issues raised and give
them the fullest consideration.
Comments should include alternatives,
rationales, benefits, technological and
economic feasibility (including costs),
and supporting data. Supporting
information should include any
information that substantiates your
conclusions and recommendations,
including, but not limited to:
Experiences, data, analyses, studies and
articles, and standard professional
practices. If referring to a particular well
site as an example, please identify the
company name of the well site operator,
well name, latitude and longitude
coordinates and American Petroleum
Institute (API) identification number, if
available.
A. Overall Approach To Reporting and
Disclosure of Chemical Substances and
Mixtures Used in Hydraulic Fracturing
In this ANPR, EPA is seeking
comment on what information should
be reported to EPA (or through a CBI
cleared third-party certifier) or disclosed
publically (by EPA) regarding the
identity, quantities, types and
circumstances of uses of chemical
substances and mixtures used in
hydraulic fracturing, as well as what
types of health and safety studies
should be reported or disclosed. EPA is
seeking comment on whether and how
data that are claimed to be trade secrets,
or CBI, could be reported to EPA (or a
third-party certifier) and then aggregated
and disclosed while protecting the
identities of individual products and
firms. EPA is also requesting comment
on the appropriate mix of voluntary
disclosure and/or regulatory reporting
mechanisms. The specific types of
information that could be reported or
disclosed are discussed in Units IV.C.
and IV.G. It should be noted that TSCA
section 8(e) requires manufacturers,
importers, processors, and distributors
to provide EPA with information on any
of their chemical substances or mixtures
that reasonably supports the conclusion
that such substance or mixture presents
a substantial risk of injury to health or
the environment.
EPA is requesting comment on the
following questions:
1. Should all information be required
to be reported or should there be a
voluntary mechanism for some or all
information?
2. Would a combination of mandatory
reporting and voluntary disclosure be
effective? If so, what would that
combination consist of? Why?
3. What types of information, if any,
should be required to be reported? Why?
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4. How could any required reporting
activities be designed to better facilitate
compliance?
5. What types of information, if any,
should be reported and/or disclosed
voluntarily? Why?
6. What are the best management
practices for the generation, collection,
reporting and/or disclosure of
information from or by companies?
7. Are there particular systems in
place that already use these best
management practices? Please identify
these systems.
8. To what extent are these best
management practices widely adopted?
Please provide evidence regarding the
extent of use of best management
practices.
9. How could incentives be structured
to ensure effective voluntary disclosure
of information on chemical substances
and mixtures used in hydraulic
fracturing?
10. Are there incentives that could be
used in combination with regulatory
requirements for information disclosure
to promote practices that go beyond
compliance (e.g., incentives that
encourage reporting in addition to that
required by regulation)?
11. What information collection tools
and resources are available to support
and promote safer chemical use and
other sustainable practices (e.g., some
form of cradle-to-grave chemical
management)? Please explain.
12. What factors should be considered
for distinguishing among different types
of companies for the purpose of
incentives?
13. What information collection tools
and resources are available to support,
incentivize, and promote safe and
sustainable practices? Please explain.
14. How could collected information
be used to better inform safe and
sustainable practices? For example,
would providing information or
guidance on improved chemical use
across different types of firms involved
in hydraulic fracturing better inform
safe and sustainable practices?
15. What mechanisms could be
developed to make information that is
reported to EPA publically disclosed
and available?
16. How could information reported
and/or disclosed under any such
mechanism be used to better inform
research and development of chemical
substances and mixtures used in
hydraulic fracturing?
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B. Who should report or disclose
information on chemical substances
and mixtures used in hydraulic
fracturing?
TSCA section 8(a) gives EPA authority
to require, by rulemaking, chemical
manufacturers and processors to
maintain records and submit to EPA
reports about chemical substances and
mixtures, as well as environmental and
health data on those substances and
mixtures. The hydraulic fracturing
industry includes a variety of
companies that could be subject to
reporting under TSCA section 8(a).
These companies could include
chemical manufacturers, chemical
suppliers who engage in processing,
service providers mixing chemicals on
site to create the hydraulic fracturing
fluids, and service providers responsible
for injecting the hydraulic fracturing
fluid into the well to fracture the
formation. EPA is requesting comment
on whether, in the context of a potential
reporting and/or disclosure program, all
or any companies should be required to
report or whether a specific type or
types of company (e.g., chemical
supplier) should be required to report
and other types (e.g., service provider)
be encouraged to report voluntarily.
1. If any companies are required to
report, should different types of
companies be required to report
different data elements? Please explain.
2. Should manufacturers (including
importers), processors, or both be
required to report under TSCA section
8(a)? Why or why not?
3. Are there additional NAICS codes
in addition to 2111 (oil and gas
extraction) and 2131 (support activities
for mining) that would need to be
included in order to cover chemical
manufacturers (including importers)
and processors in a potential reporting
and/or disclosure program?
4. In what ways do the
responsibilities of manufacturers and
processors (Ref. 6) overlap? What
activities associated with hydraulic
fracturing are carried out by the well
operator at the well site? EPA
understands that service providers or
well operators often process chemicals
at the drilling site.
5. Would manufacturers (including
importers), service providers, well
operators, or all three, know how a
chemical substance or mixture is used at
well sites? If all types of firms have this
information, which type, if any, should
be required to report? If neither well
operators, nor service providers, nor
manufacturers (including anyone who
imports chemicals or otherwise
undertakes activities that meet the
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definition of ‘‘manufacture’’ at 40 CFR
704.3) know how a chemical is used at
well sites, who would know and how
might that information be obtained?
6. If voluntary mechanisms are used
for obtaining information, what
mechanisms (e.g., incentive programs)
should EPA consider in order to
encourage consistent reporting and/or
disclosure from different types of
companies? Would some mechanisms
be more effective for one type of
company than another?
7. Should there be different incentives
for different types of companies (e.g.,
manufacturers vs. processors)?
8. What information collection tools
and resources are available to support
and promote safe and sustainable
practices? Please explain.
C. Scope of Reporting or Disclosure of
Information on Chemical Substances
and Mixtures Used in Hydraulic
Fracturing
In this ANPR, EPA is seeking
comment on the information that should
be reported or disclosed regarding
chemical substances and mixtures used
in hydraulic fracturing. EPA is
exploring various regulatory
approaches, voluntary approaches or a
combination of both for obtaining this
information.
As described in Unit III.A., TSCA
section 8(a) gives EPA authority to
require, by rulemaking, chemical
manufacturers and processors to
maintain records and submit to EPA
such reports as EPA may reasonably
require. EPA expects that data obtained
could be aggregated to provide a
national list of the chemical substances
and mixtures used in hydraulic
fracturing, providing the Agency with
the ability to determine which
chemicals are used most frequently. For
chemicals that have not been previously
well-characterized in terms of their
chemical, physical, and toxicological
properties, EPA may conduct research
to better understand these properties in
order to perform a basic risk
characterization. Information that could
be required from manufacturers
(including importers) and processors
under a potential reporting program
could include:
1. Basic company information (i.e.,
company name, mailing address, Web
site, and technical contact information).
2. Steps involved in processing
chemicals or mixtures on site before
injection. Typical composition and
performance standard of hydraulic
fracturing fluid as an end use product,
before injection.
3. Steps involved in processing
chemicals or mixtures for reuse,
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recycling, and/or reprocessing in the
hydraulic fracturing operation.
4. Hydraulic fracturing fluid
composition:
i. Common name or trade name of
each chemical product in the hydraulic
fracturing fluid and a description of
each product’s function.
ii. Chemical identity (chemical name
and Chemical Abstracts Service Registry
Number) of each chemical substance in
each product.
iii. Total volume of the carrier fluid
and percentage of the carrier fluid that
makes up the total hydraulic fracturing
fluid (e.g., water volume and percentage
of water in the hydraulic fracturing
fluid).
iv. Actual amount of each chemical
substance or product in the hydraulic
fracturing fluid in order to understand
the loading (e.g., mass or volume).
5. Production type (i.e., gas and/or
oil).
6. Frequency of use of the chemical
substance or mixture for hydraulic
fracturing (e.g., number of times or per
fracture stage or number of wells).
7. Number of workers exposed or
likely to be exposed to the chemical
substance or mixture.
8. All existing data concerning the
human and environmental health effects
of the chemical substance or mixture.
9. Some chemical substances and
mixtures used in hydraulic fracturing
may react to create other chemical
substances and mixtures as products
within an on-site mixing apparatus or in
the well that is being fractured. EPA is
requesting comments on which
reporting elements should be included:
i. If EPA were to require reporting,
how should EPA address chemical
substances and mixtures which are
formed on site? Why?
ii. Is there other information
obtainable under TSCA section 8(a) that
should be included in a proposed TSCA
section 8(a) rule? What are the chemical
safety benefits (e.g., potential reduction
of risk to human health and
environment) of obtaining this
information? Explain.
iii. Should EPA consider including
reporting on any combination of water
and/or chemicals introduced or
intended to be introduced into an oil or
gas well for the purpose of maintaining
or improving the function and
productivity of the well, including
recovery methods, (e.g., acid treatments,
corrosion inhibitors, scale reducers,
biocides)? Why or why not? EPA is
interested in information regarding the
frequency, duration, concentration, and
volume of use of such chemicals or
chemical mixtures to enhance the
Agency’s understanding of well
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maintenance practices, in order to
evaluate the need for additional
disclosure.
10. While EPA could require
manufacturers and processors to report
this information, the Agency could also
encourage companies engaged in
hydraulic fracturing to voluntarily
disclose it. EPA is requesting comments
on reporting elements which should be
included:
i. Which elements (as discussed
earlier in Unit IV.C.), if any, may benefit
from being proposed as part of a TSCA
section 8(a) rule? Which elements, if
any, may benefit better from being
reported and/or disclosed under a
voluntary program?
ii. Are there data elements (from those
discussed earlier in Unit IV.C.) for
which a hybridized reporting and/or
disclosure system (e.g., some regulatory
elements, some voluntary elements)
would be more efficient or beneficial?
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D. Use of Third-Parties
EPA is requesting comments on the
use of third-parties for the collection of
information on chemical substances
used in hydraulic fracturing and/or to
certify the use of best practices.
1. Should EPA consider implementing
third-party certification (for certifying
reporting, practices and other aspects)
and/or third-party collection of
information about hydraulic fracturing
operations in addition to or in lieu of a
mandatory reporting or voluntary
disclosure program?
2. What would such a certification
program look like?
3. Are there existing programs that
already certify best practices? Are they
effective? Are they independent? Could
they be improved? How?
4. What should be considered (e.g.
standards for third-parties, standards for
collecting chemical information, costs)
in implementing a third-party program?
5. How should chemical information
be managed by third-parties? Are there
specific roles that third-parties should
have in data management? Please
explain.
6. How should a third-party certifier
be funded? How could perceived or
actual bias be minimized?
E. Reporting Threshold and Frequency
of Reporting or Disclosure
EPA is interested in comments
regarding the threshold for the size of
entities that should be required or
encouraged to report or disclose
information on chemical substances and
mixtures used in hydraulic fracturing
and environmental and health data on
those substances and mixtures. EPA is
also interested in comments regarding
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how often reporting or disclosure
should take place:
1. Are there thresholds that might be
appropriate to limit reporting by small
manufacturers or processors under
either a regulatory or a voluntary
program (e.g., the thresholds that define
‘‘small manufacturer’’ in 40 CFR 704.3
and 712.25)? Why? If available, how
would the recommended reporting
threshold affect cost to the reporting
entity? How might different reporting
thresholds affect the usefulness of the
data provided?
2. Given possible changes in the
composition of hydraulic fracturing
fluids over time and changes in
ownership of a well, how often and
when should an entity report
information to EPA or publicly disclose
it?
3. What would be the effect of
changes in the frequency of reporting
and/or disclosure on the overall cost of
reporting or disclosure? What would be
the effect of changes in level of
aggregation or other aspects of reporting
and/or disclosure?
F. Data Collection Efficiency
EPA believes that any mechanism for
reporting and/or disclosure of
information on chemical substances and
mixtures should be structured in a
manner that minimizes the potential for
duplication and overlap.
1. EPA requests comment on how best
to minimize duplicative reporting and/
or disclosure requirements, particularly
for companies that may also report to
the BLM, state agencies, and to other
parties. For example, should EPA limit
its data collection to items not collected
by other parties? How much overlap is
acceptable?
2. How can the Agency achieve the
goal of efficient data collection while
also maximizing transparency and
public understanding?
3. In order to encourage transparency
and information sharing while
minimizing duplication, what
information collection repository or
database should EPA use? Should EPA
develop a repository or use an existing
one such as FracFocus (Ref. 7) or
https://www.data.gov? If an existing
repository is recommended, indicate
which repository and why. Are any
changes or enhancements recommended
to this existing repository?
4. EPA believes that any TSCA
reporting requirements should
complement existing reporting programs
and data sources, such as state databases
and Web sites like FracFocus in order to
avoid duplication. How could this be
achieved?
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G. Health and Safety Studies of
Chemicals and Mixtures Used in
Hydraulic Fracturing
EPA is seeking comment on potential
options for reporting or disclosure of
health and safety studies for chemical
substances and mixtures used in
hydraulic fracturing.
As described in Unit III.B., TSCA
section 8(d) authorizes EPA to require
manufacturers, processors, and
distributors of any chemical substance
or mixture and persons who propose to
manufacture, process, or distribute in
commerce any chemical substance or
mixture to submit health and safety
studies to EPA. One mechanism for the
collection of these studies is TSCA
section 8(d). Other mechanisms could
include voluntary approaches. EPA is
requesting comment on the types of
companies that would report or disclose
health and safety studies. EPA also is
requesting comment on whether
companies should be required to report
studies or be encouraged to disclose
studies, or whether a combination of
regulatory and voluntary approaches
should be used to obtain health and
safety studies.
1. Should all manufacturers
(including importers), processors, and
distributors provide lists or copies of
health and safety studies or should
reporting only be required of some types
of companies? Why or why not?
2. Are there existing mechanisms in
place, including non-regulatory
mechanisms, for EPA to obtain these
studies? If not, what would be an
effective regulatory approach and/or
voluntary mechanism for EPA to obtain
these studies?
3. Is there an approach that more
effectively encourages further health
and safety studies?
4. Some chemical substances and
mixtures used in hydraulic fracturing
are more studied than others. Some are
considered to be well-characterized in
terms of hazard and exposure
information. If EPA were to require
reporting, should EPA limit reporting
requirements to the chemical substances
and mixtures that EPA believes are not
well-characterized? Why?
5. If a TSCA section 8(d) rule were
promulgated, should it require reporting
of studies for all chemical substances
and mixtures used in hydraulic
fracturing or only a subset? Why? If only
certain chemicals should be included in
the rule, which ones should EPA
include?
6. Are there particular types of studies
that should be required to be submitted
or should all health and safety studies
be required to be submitted? Why?
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7. Are there studies that are of greater
interest if they are conducted by a
particular entity, e.g., service providers?
For example, an assessment of
environmental exposure may be viewed
as more important because of the
environment that is the focus of the
study.
8. Would it be more efficient (timely
and cost effective) to submit health and
safety studies to a third-party? Why or
why not? If so, why and what type of
third-party?
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H. Safer Chemicals and Transparency
Incentives and recognition programs
could be used to support the
development and use of safer chemicals
(both those created deliberately and
inadvertently) in hydraulic fracturing.
Safer chemicals are generally less toxic
to human health and the environment,
and are less persistent and
bioaccumulative than their alternatives.
Under an EPA-sponsored voluntary
initiative, EPA could provide resources
and recognition for companies
committed to promoting and using safe
and sustainable practices. Such a
voluntary program could help
companies meet corporate sustainability
goals by providing the means to, and an
objective measure of, environmental
stewardship. Information that could be
collected or disclosed under such a
voluntary program could be used to
verify a company’s eligibility for award
or recognition in relation to identified
measures and goals.
There are existing programs that
encourage the development of safer
chemicals (e.g., the Green Chemistry
program and the Sustainable Futures
program) or the use of safer substitutes
(e.g., Design for the Environment) which
may serve as models for application to
hydraulic fracturing. A similar program
focusing on chemicals used in hydraulic
fracturing could speed adoption by well
owners, operators and suppliers of safer
chemicals. The program could also
increase public understanding about
chemical choice and use in hydraulic
fracturing.
EPA would like to determine whether
these programs could be used as
possible models for consideration of
chemicals and mixtures used in
hydraulic fracturing and whether there
are other programs that would be more
effective. In order to determine whether
replacement chemicals are safer, it
would be important to take into account
the effectiveness and potential
associated risks with the alternative
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chemical. EPA requests comment on
strategies for creating incentives and
voluntary approaches for the
development and use of safer chemicals.
1. Are there other TSCA sections that
could also further support the use and
development of safer chemicals more
effectively?
2. What programs are appropriate to
encourage the use of safer chemicals
already on the market?
3. For this industry, are existing
programs that encourage the
development of safer chemicals
appropriate? Could EPA change those
programs to make them more effective
in inducing well operators to use safer
chemicals? How?
V. References
The following is a list of the materials
that are specifically referenced in this
document. The docket identified under
ADDRESSES includes these references
and other information considered by
EPA. For assistance, please consult the
technical person listed under FOR
FURTHER INFORMATION CONTACT.
1. Toxic Substances Control Act, section 3
(15 U.S.C. 2602).
2. Earthjustice and 114 other organizations.
Letter from Deborah Goldberg,
Earthjustice to Wendy Cleland-Hamnett,
Director, Office of Pollution Prevention
and Toxics. Re: Citizen Petition Under
Toxic Substances Control Act Regarding
the Chemical Substances and Mixtures
Used in Oil and Gas Exploration or
Production. August 4, 2011. Available
on-line at: https://www.epa.gov/oppt/
chemtest/pubs/Section_21_Petition_on_
Oil_Gas_Drilling_and_Fracking_
Chemicals8.4.2011.pdf.
3. EPA. Letter from EPA Assistant
Administrator Steven A. Owens to
Deborah Goldberg, Earthjustice, Re:
TSCA Section 21 Petition Concerning
Chemical Substances and Mixtures Used
in Oil and Gas Exploration or
Production. November 2, 2011. Available
on-line at: https://www.epa.gov/oppt/
chemtest/pubs/
SO.Earthjustice.Response.11.2.pdf.
4. EPA. Letter from Assistant Administrator
Steven A. Owens to Deborah Goldberg,
Earthjustice, Re: TSCA Section 21
Petition Concerning Chemical
Substances and Mixtures Used in Oil
and Gas Exploration or Production.
November 23, 2011. Available on-line at:
https://www.epa.gov/oppt/chemtest/
pubs/EPA_Letter_to_Earthjustice_on_
TSCA_Petition.pdf.
5. EPA. Chemical Substances and Mixtures
Used in Oil and Gas Exploration or
Production; TSCA Section 21 Petition
Reasons for Agency Response. Federal
Register (78 FR 41768, July 11, 2013)
(FRL–9339–4).
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28669
6. TSCA Statutory Definitions Document.
February 11, 2014.
7. FracFocus Chemical Disclosure Registry.
Available on-line at: https://
www.fracfocus.org.
VI. Statutory and Executive Order
Reviews
Under Executive Orders 12866,
entitled ‘‘Regulatory Planning and
Review’’ (58 FR 51735, October 4, 1993)
and 13563, entitled ‘‘Improving
Regulation and Regulatory Review’’ (76
FR 3821, January 21, 2011), this is a
‘‘significant regulatory action’’ because
it raises novel legal and/or policy issues.
Accordingly, EPA submitted this action
to the Office of Management and Budget
(OMB) for review under these Executive
Orders and any changes made in
response to OMB recommendations
have been documented in the docket for
this action.
Because this document does not
impose or propose any requirements,
and instead seeks comments and
suggestions for the Agency to consider
in possibly developing a subsequent
proposed rule, the various other review
requirements that apply when an agency
imposes requirements do not apply to
this action. Nevertheless, as part of your
comments on this ANPR, you may
include any comments or information
that could help the Agency to assess the
potential impact of a subsequent
regulatory action on small entities
pursuant to the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.); to consider
voluntary consensus standards pursuant
to section 12(d) of the National
Technology Transfer and Advancement
Act (15 U.S.C. 272 note); to consider
environmental health or safety effects
on children pursuant to Executive Order
13045, entitled ‘‘Protection of Children
from Environmental Health Risks and
Safety Risks’’ (62 FR 19885, April 23,
1997); to consider human health or
environmental effects on minority or
low-income populations pursuant to
Executive Order 12898, entitled
‘‘Federal Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations’’ (59 FR 7629, February 16,
1994); or to consider potential impacts
to state and local governments or tribal
governments.
The Agency will consider such
comments during the development of
any subsequent rulemaking as it takes
appropriate steps to address any
applicable requirements.
List of Subjects in 40 CFR Chapter I
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Federal Register / Vol. 79, No. 96 / Monday, May 19, 2014 / Proposed Rules
Environmental protection, Chemicals,
Confidential business information,
Exploration and production, Fracking,
Hazardous substances, Hydraulic
fracturing, Oil and gas, Reporting and
recordkeeping.
Dated: May 9, 2014.
Gina McCarthy,
Administrator.
[FR Doc. 2014–11501 Filed 5–16–14; 8:45 am]
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Agencies
[Federal Register Volume 79, Number 96 (Monday, May 19, 2014)]
[Proposed Rules]
[Pages 28664-28670]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-11501]
[[Page 28664]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Chapter I
[EPA-HQ-OPPT-2011-1019; FRL-9909-13]
RIN 2070-AJ93
Hydraulic Fracturing Chemicals and Mixtures
AGENCY: Environmental Protection Agency (EPA).
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: In its response to a citizen petition submitted under section
21 of the Toxic Substances Control Act (TSCA), EPA indicated that as a
first step, it would convene a stakeholder process to develop an
approach to obtain information on chemical substances and mixtures used
in hydraulic fracturing. To gather information to inform EPA's
proposal, the Agency is issuing this advance notice of proposed
rulemaking (ANPR) and initiating a public participation process to seek
comment on the information that should be reported or disclosed for
hydraulic fracturing chemical substances and mixtures and the mechanism
for obtaining this information. This mechanism could be regulatory
(under TSCA section 8(a) and/or section 8(d)), voluntary, or a
combination of both and could include best management practices, third-
party certification and collection, and incentives for disclosure of
this information. In addition, the Agency is seeking comment on ways of
minimizing reporting burdens and costs and of avoiding the duplication
of state and other federal agency information collections, while at the
same time maximizing data available for EPA risk characterization,
external transparency, and public understanding. Also, EPA is
soliciting comments on incentives and recognition programs that could
be used to support the development and use of safer chemicals in
hydraulic fracturing.
DATES: Comments must be received on or before August 18, 2014.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2011-1019, by one of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: Document Control Office (7407M), Office of Pollution
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington, DC 20460-0001.
Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at https://www.epa.gov/dockets/contacts.html.
Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT:
For technical information contact: Mark Seltzer, Chemical Control
Division (7405M), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460-0001; telephone number: (202) 564-2901; email
address: seltzer.mark@epa.gov.
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: TSCA-Hotline@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This action is directed to the public in general. This action,
however, may be of interest to you if you manufacture (including
import), process, or distribute chemical substances or mixtures (Ref.
1) used in any type or method of hydraulic fracturing. This may include
businesses that fall under North American Industry Classification
System (NAICS) codes 2111 (oil and gas extraction) and/or 2131 (support
activities for mining). EPA anticipates that this ANPR may also be of
interest to states, tribes, and other industries. Since additional
entities may also be interested, the Agency has not attempted to
describe all the specific entities that may be interested in this
action.
B. What should I consider as I prepare my comments for EPA?
1. Submitting confidential business information (CBI). Do not
submit this information to EPA through regulations.gov or email.
Clearly mark the part or all of the information that you claim to be
CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark
the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
2. Tips for preparing your comments. When submitting comments,
remember to:
i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced. Likewise, if you estimate the universe of affected
reporters, explain how you arrived at your estimate in sufficient
detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. Background
EPA received a petition from Earthjustice and 114 other groups on
August 4, 2011, requesting that EPA issue TSCA section 4 and TSCA
section 8 rules requiring toxicity testing of chemicals and mixtures
used in oil and gas exploration and production; reporting to EPA, among
other things, the identity of those chemicals and mixtures; and
submitting to EPA health and safety studies on the chemicals and
mixtures (Ref. 2). On November 2, 2011, EPA provided an initial
response to the petition (Ref. 3). In that response, EPA denied the
TSCA section 4 request for issuance of a test rule because the petition
did not set forth sufficient facts to conclude that it was ``necessary
to issue'' the requested TSCA section 4 rule, as required by TSCA
section 21(b)(1). On November 23, 2011, EPA granted in part and denied
in part the TSCA section 8(a) and section 8(d) requests by limiting the
scope from chemicals and mixtures used in all processes of oil and gas
exploration and production to chemical substances and mixtures used in
hydraulic fracturing
[[Page 28665]]
(Refs. 4 and 5). EPA published a document with the Agency's rationale
for its response to the petition in the Federal Register of July 11,
2013 (Ref. 5). To facilitate public comment, the Agency stated its
intent to publish an ANPR to identify key issues for further discussion
and analysis.
EPA maintains continuing coordination with its Federal partners in
planning information reporting rules that will complement the Bureau of
Land Management's (BLM) proposed regulation: Oil and Gas; Hydraulic
Fracturing on Federal and Indian Lands (78 FR 31636, May 24, 2013). BLM
subsequently issued a supplemental proposal and extension of comment
period for that proposed rule (78 FR 34611, June 10, 2013). The intent
of these dialogues is to ensure both EPA's and BLM's efforts provide
useful information for assessment and disclosure purposes, while not
overly burdening reporting entities.
A. What action is the Agency taking?
With this ANPR, EPA is initiating a stakeholder process to request
input on various aspects of obtaining information on chemical
substances and mixtures used in hydraulic fracturing for oil and gas
exploration and production to further the purposes of TSCA (TSCA
section 2 sets forth the findings, policy, and intent of Congress in
enacting TSCA) and other federal government objectives that can be
informed through this process. As part of this effort, EPA seeks input
on appropriate disclosure to ensure that information about the
chemicals and mixtures used in hydraulic fracturing activities is
provided to the public in a transparent fashion. These activities
include the injection of water, chemicals, proppant, and/or tracers to
prepare geologic formations for hydraulic fracturing, complete a
hydraulic fracturing stimulation stage, evaluate the extent of
resulting fractures, or ensure future ability to continue enhancement
of production through stimulation by hydraulic fracturing. During each
hydraulic fracturing stimulation stage, pressurized fluids containing
carrier fluids such as water or gas and any combination of proppant and
chemicals are injected into wells to fracture portions of the formation
surrounding a selected well section. As discussed in more detail in
Unit IV., EPA is requesting comment on the information that should be
obtained or disclosed and the mechanism for obtaining or disclosing
this information about chemicals and mixtures used in hydraulic
fracturing. This mechanism could be regulatory (under TSCA section 8(a)
and/or section 8(d)), voluntary (e.g., under the Pollution Prevention
Act (PPA) (42 U.S.C. 13101 et seq.)), or a combination of both. EPA is
also seeking comment on best management practices for the generation,
collection, reporting and/or disclosure of public health and
environmental information from or by companies that manufacture,
process, or use chemical substances or mixtures in hydraulic fracturing
activities--that is, practices or operations that can be implemented
and verified toward achieving protection of public health and the
environment--and whether voluntary third-party certification, and
incentives for disclosure could be valuable tools for improving
chemical safety. In addition, the Agency is seeking comment on ways to
minimize reporting burdens and costs, avoid duplication of efforts, and
maximize transparency and public understanding. Finally, EPA is
soliciting comments on incentives and recognition programs that could
be used to support the development and use of safer chemicals in
hydraulic fracturing.
B. What is the Agency's authority for this action?
TSCA section 8(a) (15 U.S.C. 2607(a)) authorizes EPA to promulgate
rules under which manufacturers (including importers) and processors of
chemical substances must maintain records and submit information as the
EPA Administrator may reasonably require. TSCA section 8(a) also
authorizes EPA to promulgate rules under which manufacturers and
processors of mixtures must maintain records and submit information to
the extent the EPA Administrator determines the maintenance of records
or submission of reports, or both, is necessary for the effective
enforcement of TSCA. TSCA section 8(a) generally excludes small
manufacturers and processors of chemical substances or mixtures from
the reporting requirements (see 15 U.S.C. 2507(a)). This general
exclusion has been codified at 40 CFR 704.5 and 712.25. However, EPA is
authorized by TSCA section 8(a)(3)(A)(ii) to require TSCA section 8(a)
reporting from small manufacturers and processors with respect to any
chemical substance or mixture that is the subject of a rule proposed or
promulgated under TSCA section 4, 5(b)(4), or 6, or that is the subject
of an order in effect under TSCA section 5(e), or that is the subject
of relief granted pursuant to a civil action under TSCA section 5 or 7.
TSCA section 8(a) also notes that, to the extent feasible, the EPA
Administrator must not require reporting under TSCA section 8(a)(1)
that is unnecessary or duplicative.
TSCA section 8(d) (15 U.S.C. 2607(d)) authorizes EPA to require the
submission of lists of health and safety studies conducted or initiated
by or for, or known to or reasonably ascertainable by manufacturers,
processors, and distributors of (and any person who proposes to
manufacture, process, or distribute) any chemical substance or mixture.
Certain types or categories of studies may be excluded ``if the
Administrator finds that submission of lists of such studies are
unnecessary to carry out the purposes of [TSCA]'' (see TSCA section
8(d)(1)). TSCA section 8(d) also authorizes EPA to require the
submission of copies of studies on these lists or copies of studies
that are otherwise known by the person submitting the list.
The Pollution Prevention Act (PPA) (42 U.S.C. 13101 et seq.) makes
pollution prevention the national policy of the United States. The PPA
identifies an environmental management hierarchy in which pollution
``should be prevented or reduced whenever feasible; pollution that
cannot be prevented should be recycled in an environmentally safe
manner, whenever feasible; pollution that cannot be prevented or
recycled should be treated in an environmentally safe manner whenever
feasible; and disposal or release into the environment should be
employed only as a last resort . . .'' (42 U.S.C. 13103). Among other
requirements, the PPA directs EPA to develop improved methods of
coordinating, streamlining and assuring public access to data collected
under Federal environmental statutes; facilitate the adoption of
source-reduction techniques by businesses; and establish an annual
awards program to recognize a company or companies that operate
outstanding or innovative source reduction programs.
III. Overview of Information Collection Authority Under Sections 8(a)
and 8(d) of TSCA
A. TSCA Section 8(a)
TSCA section 8(a) gives EPA authority to require, by rulemaking,
chemical manufacturers and processors to maintain records and submit to
EPA such reports as EPA may reasonably require, including reports
concerning the following, insofar as it is known to or reasonably
ascertainable by the person making the report:
The common or trade name, the chemical identity, and the
molecular structure of each chemical substance or
[[Page 28666]]
mixture for which such a report is required.
The categories or proposed categories of use of each
chemical substance or mixture.
The total amount of each chemical substance or mixture
manufactured or processed, reasonable estimates of the total amount to
be manufactured or processed, the amount manufactured or processed for
each of its categories of use, and reasonable estimates of the amount
to be manufactured or processed for each of its categories of use or
proposed categories of use.
A description of the byproducts resulting from the
manufacture, processing, use, or disposal of each chemical substance or
mixture.
All existing data concerning the environmental and health
effects of each chemical substance or mixture.
The number of individuals exposed, and reasonable
estimates of the number who will be exposed, to each chemical substance
or mixture in their places of employment and the duration of such
exposure.
The manner or method of disposal of each chemical
substance or mixture, and any subsequent changes to such manner or
method.
B. TSCA Section 8(d)
TSCA section 8(d) authorizes EPA to require manufacturers,
processors, and distributors of any chemical substance or mixture and
persons who propose to manufacture, process, or distribute in commerce
any chemical substance or mixture to submit health and safety studies
to EPA. Examples of health and safety studies can be found in 40 CFR
716.3, and include:
Epidemiological or clinical studies.
Studies of occupational exposure.
Health effects studies.
Ecological effects studies.
Assessments of environmental exposure.
Environmental fate studies.
Health and safety studies related to surface or ground
water sampling and analyses that are aggregated and analyzed to measure
exposure.
IV. Request for Comment
EPA is requesting comment on the design and scope of potential
regulatory or voluntary approaches, or combination of both approaches,
to obtain information on chemical substances and mixtures used in
hydraulic fracturing. EPA invites comments on all aspects of this ANPR,
including the description of hydraulic fracturing activities presented
in Unit II.A. Comments should provide enough detail and contain
sufficient supporting information in order for the Agency to understand
the issues raised and give them the fullest consideration. Comments
should include alternatives, rationales, benefits, technological and
economic feasibility (including costs), and supporting data. Supporting
information should include any information that substantiates your
conclusions and recommendations, including, but not limited to:
Experiences, data, analyses, studies and articles, and standard
professional practices. If referring to a particular well site as an
example, please identify the company name of the well site operator,
well name, latitude and longitude coordinates and American Petroleum
Institute (API) identification number, if available.
A. Overall Approach To Reporting and Disclosure of Chemical Substances
and Mixtures Used in Hydraulic Fracturing
In this ANPR, EPA is seeking comment on what information should be
reported to EPA (or through a CBI cleared third-party certifier) or
disclosed publically (by EPA) regarding the identity, quantities, types
and circumstances of uses of chemical substances and mixtures used in
hydraulic fracturing, as well as what types of health and safety
studies should be reported or disclosed. EPA is seeking comment on
whether and how data that are claimed to be trade secrets, or CBI,
could be reported to EPA (or a third-party certifier) and then
aggregated and disclosed while protecting the identities of individual
products and firms. EPA is also requesting comment on the appropriate
mix of voluntary disclosure and/or regulatory reporting mechanisms. The
specific types of information that could be reported or disclosed are
discussed in Units IV.C. and IV.G. It should be noted that TSCA section
8(e) requires manufacturers, importers, processors, and distributors to
provide EPA with information on any of their chemical substances or
mixtures that reasonably supports the conclusion that such substance or
mixture presents a substantial risk of injury to health or the
environment.
EPA is requesting comment on the following questions:
1. Should all information be required to be reported or should
there be a voluntary mechanism for some or all information?
2. Would a combination of mandatory reporting and voluntary
disclosure be effective? If so, what would that combination consist of?
Why?
3. What types of information, if any, should be required to be
reported? Why?
4. How could any required reporting activities be designed to
better facilitate compliance?
5. What types of information, if any, should be reported and/or
disclosed voluntarily? Why?
6. What are the best management practices for the generation,
collection, reporting and/or disclosure of information from or by
companies?
7. Are there particular systems in place that already use these
best management practices? Please identify these systems.
8. To what extent are these best management practices widely
adopted? Please provide evidence regarding the extent of use of best
management practices.
9. How could incentives be structured to ensure effective voluntary
disclosure of information on chemical substances and mixtures used in
hydraulic fracturing?
10. Are there incentives that could be used in combination with
regulatory requirements for information disclosure to promote practices
that go beyond compliance (e.g., incentives that encourage reporting in
addition to that required by regulation)?
11. What information collection tools and resources are available
to support and promote safer chemical use and other sustainable
practices (e.g., some form of cradle-to-grave chemical management)?
Please explain.
12. What factors should be considered for distinguishing among
different types of companies for the purpose of incentives?
13. What information collection tools and resources are available
to support, incentivize, and promote safe and sustainable practices?
Please explain.
14. How could collected information be used to better inform safe
and sustainable practices? For example, would providing information or
guidance on improved chemical use across different types of firms
involved in hydraulic fracturing better inform safe and sustainable
practices?
15. What mechanisms could be developed to make information that is
reported to EPA publically disclosed and available?
16. How could information reported and/or disclosed under any such
mechanism be used to better inform research and development of chemical
substances and mixtures used in hydraulic fracturing?
[[Page 28667]]
B. Who should report or disclose information on chemical substances and
mixtures used in hydraulic fracturing?
TSCA section 8(a) gives EPA authority to require, by rulemaking,
chemical manufacturers and processors to maintain records and submit to
EPA reports about chemical substances and mixtures, as well as
environmental and health data on those substances and mixtures. The
hydraulic fracturing industry includes a variety of companies that
could be subject to reporting under TSCA section 8(a). These companies
could include chemical manufacturers, chemical suppliers who engage in
processing, service providers mixing chemicals on site to create the
hydraulic fracturing fluids, and service providers responsible for
injecting the hydraulic fracturing fluid into the well to fracture the
formation. EPA is requesting comment on whether, in the context of a
potential reporting and/or disclosure program, all or any companies
should be required to report or whether a specific type or types of
company (e.g., chemical supplier) should be required to report and
other types (e.g., service provider) be encouraged to report
voluntarily.
1. If any companies are required to report, should different types
of companies be required to report different data elements? Please
explain.
2. Should manufacturers (including importers), processors, or both
be required to report under TSCA section 8(a)? Why or why not?
3. Are there additional NAICS codes in addition to 2111 (oil and
gas extraction) and 2131 (support activities for mining) that would
need to be included in order to cover chemical manufacturers (including
importers) and processors in a potential reporting and/or disclosure
program?
4. In what ways do the responsibilities of manufacturers and
processors (Ref. 6) overlap? What activities associated with hydraulic
fracturing are carried out by the well operator at the well site? EPA
understands that service providers or well operators often process
chemicals at the drilling site.
5. Would manufacturers (including importers), service providers,
well operators, or all three, know how a chemical substance or mixture
is used at well sites? If all types of firms have this information,
which type, if any, should be required to report? If neither well
operators, nor service providers, nor manufacturers (including anyone
who imports chemicals or otherwise undertakes activities that meet the
definition of ``manufacture'' at 40 CFR 704.3) know how a chemical is
used at well sites, who would know and how might that information be
obtained?
6. If voluntary mechanisms are used for obtaining information, what
mechanisms (e.g., incentive programs) should EPA consider in order to
encourage consistent reporting and/or disclosure from different types
of companies? Would some mechanisms be more effective for one type of
company than another?
7. Should there be different incentives for different types of
companies (e.g., manufacturers vs. processors)?
8. What information collection tools and resources are available to
support and promote safe and sustainable practices? Please explain.
C. Scope of Reporting or Disclosure of Information on Chemical
Substances and Mixtures Used in Hydraulic Fracturing
In this ANPR, EPA is seeking comment on the information that should
be reported or disclosed regarding chemical substances and mixtures
used in hydraulic fracturing. EPA is exploring various regulatory
approaches, voluntary approaches or a combination of both for obtaining
this information.
As described in Unit III.A., TSCA section 8(a) gives EPA authority
to require, by rulemaking, chemical manufacturers and processors to
maintain records and submit to EPA such reports as EPA may reasonably
require. EPA expects that data obtained could be aggregated to provide
a national list of the chemical substances and mixtures used in
hydraulic fracturing, providing the Agency with the ability to
determine which chemicals are used most frequently. For chemicals that
have not been previously well-characterized in terms of their chemical,
physical, and toxicological properties, EPA may conduct research to
better understand these properties in order to perform a basic risk
characterization. Information that could be required from manufacturers
(including importers) and processors under a potential reporting
program could include:
1. Basic company information (i.e., company name, mailing address,
Web site, and technical contact information).
2. Steps involved in processing chemicals or mixtures on site
before injection. Typical composition and performance standard of
hydraulic fracturing fluid as an end use product, before injection.
3. Steps involved in processing chemicals or mixtures for reuse,
recycling, and/or reprocessing in the hydraulic fracturing operation.
4. Hydraulic fracturing fluid composition:
i. Common name or trade name of each chemical product in the
hydraulic fracturing fluid and a description of each product's
function.
ii. Chemical identity (chemical name and Chemical Abstracts Service
Registry Number) of each chemical substance in each product.
iii. Total volume of the carrier fluid and percentage of the
carrier fluid that makes up the total hydraulic fracturing fluid (e.g.,
water volume and percentage of water in the hydraulic fracturing
fluid).
iv. Actual amount of each chemical substance or product in the
hydraulic fracturing fluid in order to understand the loading (e.g.,
mass or volume).
5. Production type (i.e., gas and/or oil).
6. Frequency of use of the chemical substance or mixture for
hydraulic fracturing (e.g., number of times or per fracture stage or
number of wells).
7. Number of workers exposed or likely to be exposed to the
chemical substance or mixture.
8. All existing data concerning the human and environmental health
effects of the chemical substance or mixture.
9. Some chemical substances and mixtures used in hydraulic
fracturing may react to create other chemical substances and mixtures
as products within an on-site mixing apparatus or in the well that is
being fractured. EPA is requesting comments on which reporting elements
should be included:
i. If EPA were to require reporting, how should EPA address
chemical substances and mixtures which are formed on site? Why?
ii. Is there other information obtainable under TSCA section 8(a)
that should be included in a proposed TSCA section 8(a) rule? What are
the chemical safety benefits (e.g., potential reduction of risk to
human health and environment) of obtaining this information? Explain.
iii. Should EPA consider including reporting on any combination of
water and/or chemicals introduced or intended to be introduced into an
oil or gas well for the purpose of maintaining or improving the
function and productivity of the well, including recovery methods,
(e.g., acid treatments, corrosion inhibitors, scale reducers,
biocides)? Why or why not? EPA is interested in information regarding
the frequency, duration, concentration, and volume of use of such
chemicals or chemical mixtures to enhance the Agency's understanding of
well
[[Page 28668]]
maintenance practices, in order to evaluate the need for additional
disclosure.
10. While EPA could require manufacturers and processors to report
this information, the Agency could also encourage companies engaged in
hydraulic fracturing to voluntarily disclose it. EPA is requesting
comments on reporting elements which should be included:
i. Which elements (as discussed earlier in Unit IV.C.), if any, may
benefit from being proposed as part of a TSCA section 8(a) rule? Which
elements, if any, may benefit better from being reported and/or
disclosed under a voluntary program?
ii. Are there data elements (from those discussed earlier in Unit
IV.C.) for which a hybridized reporting and/or disclosure system (e.g.,
some regulatory elements, some voluntary elements) would be more
efficient or beneficial?
D. Use of Third-Parties
EPA is requesting comments on the use of third-parties for the
collection of information on chemical substances used in hydraulic
fracturing and/or to certify the use of best practices.
1. Should EPA consider implementing third-party certification (for
certifying reporting, practices and other aspects) and/or third-party
collection of information about hydraulic fracturing operations in
addition to or in lieu of a mandatory reporting or voluntary disclosure
program?
2. What would such a certification program look like?
3. Are there existing programs that already certify best practices?
Are they effective? Are they independent? Could they be improved? How?
4. What should be considered (e.g. standards for third-parties,
standards for collecting chemical information, costs) in implementing a
third-party program?
5. How should chemical information be managed by third-parties? Are
there specific roles that third-parties should have in data management?
Please explain.
6. How should a third-party certifier be funded? How could
perceived or actual bias be minimized?
E. Reporting Threshold and Frequency of Reporting or Disclosure
EPA is interested in comments regarding the threshold for the size
of entities that should be required or encouraged to report or disclose
information on chemical substances and mixtures used in hydraulic
fracturing and environmental and health data on those substances and
mixtures. EPA is also interested in comments regarding how often
reporting or disclosure should take place:
1. Are there thresholds that might be appropriate to limit
reporting by small manufacturers or processors under either a
regulatory or a voluntary program (e.g., the thresholds that define
``small manufacturer'' in 40 CFR 704.3 and 712.25)? Why? If available,
how would the recommended reporting threshold affect cost to the
reporting entity? How might different reporting thresholds affect the
usefulness of the data provided?
2. Given possible changes in the composition of hydraulic
fracturing fluids over time and changes in ownership of a well, how
often and when should an entity report information to EPA or publicly
disclose it?
3. What would be the effect of changes in the frequency of
reporting and/or disclosure on the overall cost of reporting or
disclosure? What would be the effect of changes in level of aggregation
or other aspects of reporting and/or disclosure?
F. Data Collection Efficiency
EPA believes that any mechanism for reporting and/or disclosure of
information on chemical substances and mixtures should be structured in
a manner that minimizes the potential for duplication and overlap.
1. EPA requests comment on how best to minimize duplicative
reporting and/or disclosure requirements, particularly for companies
that may also report to the BLM, state agencies, and to other parties.
For example, should EPA limit its data collection to items not
collected by other parties? How much overlap is acceptable?
2. How can the Agency achieve the goal of efficient data collection
while also maximizing transparency and public understanding?
3. In order to encourage transparency and information sharing while
minimizing duplication, what information collection repository or
database should EPA use? Should EPA develop a repository or use an
existing one such as FracFocus (Ref. 7) or https://www.data.gov? If an
existing repository is recommended, indicate which repository and why.
Are any changes or enhancements recommended to this existing
repository?
4. EPA believes that any TSCA reporting requirements should
complement existing reporting programs and data sources, such as state
databases and Web sites like FracFocus in order to avoid duplication.
How could this be achieved?
G. Health and Safety Studies of Chemicals and Mixtures Used in
Hydraulic Fracturing
EPA is seeking comment on potential options for reporting or
disclosure of health and safety studies for chemical substances and
mixtures used in hydraulic fracturing.
As described in Unit III.B., TSCA section 8(d) authorizes EPA to
require manufacturers, processors, and distributors of any chemical
substance or mixture and persons who propose to manufacture, process,
or distribute in commerce any chemical substance or mixture to submit
health and safety studies to EPA. One mechanism for the collection of
these studies is TSCA section 8(d). Other mechanisms could include
voluntary approaches. EPA is requesting comment on the types of
companies that would report or disclose health and safety studies. EPA
also is requesting comment on whether companies should be required to
report studies or be encouraged to disclose studies, or whether a
combination of regulatory and voluntary approaches should be used to
obtain health and safety studies.
1. Should all manufacturers (including importers), processors, and
distributors provide lists or copies of health and safety studies or
should reporting only be required of some types of companies? Why or
why not?
2. Are there existing mechanisms in place, including non-regulatory
mechanisms, for EPA to obtain these studies? If not, what would be an
effective regulatory approach and/or voluntary mechanism for EPA to
obtain these studies?
3. Is there an approach that more effectively encourages further
health and safety studies?
4. Some chemical substances and mixtures used in hydraulic
fracturing are more studied than others. Some are considered to be
well-characterized in terms of hazard and exposure information. If EPA
were to require reporting, should EPA limit reporting requirements to
the chemical substances and mixtures that EPA believes are not well-
characterized? Why?
5. If a TSCA section 8(d) rule were promulgated, should it require
reporting of studies for all chemical substances and mixtures used in
hydraulic fracturing or only a subset? Why? If only certain chemicals
should be included in the rule, which ones should EPA include?
6. Are there particular types of studies that should be required to
be submitted or should all health and safety studies be required to be
submitted? Why?
[[Page 28669]]
7. Are there studies that are of greater interest if they are
conducted by a particular entity, e.g., service providers? For example,
an assessment of environmental exposure may be viewed as more important
because of the environment that is the focus of the study.
8. Would it be more efficient (timely and cost effective) to submit
health and safety studies to a third-party? Why or why not? If so, why
and what type of third-party?
H. Safer Chemicals and Transparency
Incentives and recognition programs could be used to support the
development and use of safer chemicals (both those created deliberately
and inadvertently) in hydraulic fracturing. Safer chemicals are
generally less toxic to human health and the environment, and are less
persistent and bioaccumulative than their alternatives. Under an EPA-
sponsored voluntary initiative, EPA could provide resources and
recognition for companies committed to promoting and using safe and
sustainable practices. Such a voluntary program could help companies
meet corporate sustainability goals by providing the means to, and an
objective measure of, environmental stewardship. Information that could
be collected or disclosed under such a voluntary program could be used
to verify a company's eligibility for award or recognition in relation
to identified measures and goals.
There are existing programs that encourage the development of safer
chemicals (e.g., the Green Chemistry program and the Sustainable
Futures program) or the use of safer substitutes (e.g., Design for the
Environment) which may serve as models for application to hydraulic
fracturing. A similar program focusing on chemicals used in hydraulic
fracturing could speed adoption by well owners, operators and suppliers
of safer chemicals. The program could also increase public
understanding about chemical choice and use in hydraulic fracturing.
EPA would like to determine whether these programs could be used as
possible models for consideration of chemicals and mixtures used in
hydraulic fracturing and whether there are other programs that would be
more effective. In order to determine whether replacement chemicals are
safer, it would be important to take into account the effectiveness and
potential associated risks with the alternative chemical. EPA requests
comment on strategies for creating incentives and voluntary approaches
for the development and use of safer chemicals.
1. Are there other TSCA sections that could also further support
the use and development of safer chemicals more effectively?
2. What programs are appropriate to encourage the use of safer
chemicals already on the market?
3. For this industry, are existing programs that encourage the
development of safer chemicals appropriate? Could EPA change those
programs to make them more effective in inducing well operators to use
safer chemicals? How?
V. References
The following is a list of the materials that are specifically
referenced in this document. The docket identified under ADDRESSES
includes these references and other information considered by EPA. For
assistance, please consult the technical person listed under FOR
FURTHER INFORMATION CONTACT.
1. Toxic Substances Control Act, section 3 (15 U.S.C. 2602).
2. Earthjustice and 114 other organizations. Letter from Deborah
Goldberg, Earthjustice to Wendy Cleland-Hamnett, Director, Office of
Pollution Prevention and Toxics. Re: Citizen Petition Under Toxic
Substances Control Act Regarding the Chemical Substances and
Mixtures Used in Oil and Gas Exploration or Production. August 4,
2011. Available on-line at: https://www.epa.gov/oppt/chemtest/pubs/Section_21_Petition_on_Oil_Gas_Drilling_and_Fracking_Chemicals8.4.2011.pdf.
3. EPA. Letter from EPA Assistant Administrator Steven A. Owens to
Deborah Goldberg, Earthjustice, Re: TSCA Section 21 Petition
Concerning Chemical Substances and Mixtures Used in Oil and Gas
Exploration or Production. November 2, 2011. Available on-line at:
https://www.epa.gov/oppt/chemtest/pubs/SO.Earthjustice.Response.11.2.pdf.
4. EPA. Letter from Assistant Administrator Steven A. Owens to
Deborah Goldberg, Earthjustice, Re: TSCA Section 21 Petition
Concerning Chemical Substances and Mixtures Used in Oil and Gas
Exploration or Production. November 23, 2011. Available on-line at:
https://www.epa.gov/oppt/chemtest/pubs/EPA_Letter_to_Earthjustice_on_TSCA_Petition.pdf.
5. EPA. Chemical Substances and Mixtures Used in Oil and Gas
Exploration or Production; TSCA Section 21 Petition Reasons for
Agency Response. Federal Register (78 FR 41768, July 11, 2013) (FRL-
9339-4).
6. TSCA Statutory Definitions Document. February 11, 2014.
7. FracFocus Chemical Disclosure Registry. Available on-line at:
https://www.fracfocus.org.
VI. Statutory and Executive Order Reviews
Under Executive Orders 12866, entitled ``Regulatory Planning and
Review'' (58 FR 51735, October 4, 1993) and 13563, entitled ``Improving
Regulation and Regulatory Review'' (76 FR 3821, January 21, 2011), this
is a ``significant regulatory action'' because it raises novel legal
and/or policy issues. Accordingly, EPA submitted this action to the
Office of Management and Budget (OMB) for review under these Executive
Orders and any changes made in response to OMB recommendations have
been documented in the docket for this action.
Because this document does not impose or propose any requirements,
and instead seeks comments and suggestions for the Agency to consider
in possibly developing a subsequent proposed rule, the various other
review requirements that apply when an agency imposes requirements do
not apply to this action. Nevertheless, as part of your comments on
this ANPR, you may include any comments or information that could help
the Agency to assess the potential impact of a subsequent regulatory
action on small entities pursuant to the Regulatory Flexibility Act (5
U.S.C. 601 et seq.); to consider voluntary consensus standards pursuant
to section 12(d) of the National Technology Transfer and Advancement
Act (15 U.S.C. 272 note); to consider environmental health or safety
effects on children pursuant to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997); to consider human health or
environmental effects on minority or low-income populations pursuant to
Executive Order 12898, entitled ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994); or to consider potential
impacts to state and local governments or tribal governments.
The Agency will consider such comments during the development of
any subsequent rulemaking as it takes appropriate steps to address any
applicable requirements.
List of Subjects in 40 CFR Chapter I
[[Page 28670]]
Environmental protection, Chemicals, Confidential business
information, Exploration and production, Fracking, Hazardous
substances, Hydraulic fracturing, Oil and gas, Reporting and
recordkeeping.
Dated: May 9, 2014.
Gina McCarthy,
Administrator.
[FR Doc. 2014-11501 Filed 5-16-14; 8:45 am]
BILLING CODE 6560-50-P