In response to a petition filed by Earthjustice and several other organizations, the United States Environmental Protection Agency has stated that it will use the Toxic Substances Control Act (TSCA) to draft regulations requiring companies to disclose information regarding "chemical substances and mixtures used in hydraulic fracturing." Although the EPA has not indicated what information will be subject to disclosure, the agency stated that it will attempt to avoid duplication of "the well-by-well disclosure programs already being implemented in several states," and that it anticipates that its regulations will "focus on providing aggregate pictures of the chemical substances and mixtures used in hydraulic fracturing."
In a November 23, 2011 letter to Earthjustice, the EPA stated that "the first step" in its development of disclosure regulations will be to "convene a stakeholder process to develop an overall approach that would minimize reporting burdens and costs, take advantage of existing information, and avoid duplication of efforts." The EPA said that it will facilitate a public comment process by publishing an advance notice of its proposed rulemaking, "identifying key issues for further discussion and analysis." The EPA did not specify in its letter or its public announcement when it would convene the stakeholder process or publish notice of its proposed rulemaking.
The EPA's decision grants a portion of the relief requested in Earthjustice's petition, but denies other portions of the requested relief. Earthjustice's petition, dated August 4, 2011, requested that the EPA use 15 U.S.C. § 2607 (section 8 of TSCA) to require chemical manufacturers to report a broad range of information on all substances used in the exploration and production of oil and gas. The EPA stated, however, that its disclosure regulations will apply only to substances used in hydraulic fracturing, and that the agency was denying Earthjustice's request for regulations relating to other substances used in oil and gas activities.
EPA previously had denied another request contained in Earthjustice's petition ─ a request that the EPA use 15 U.S.C. § 2603 (section 4 of TSCA) to require manufacturers to conduct toxicity testing of all "chemical substances and mixtures used in oil and gas exploration or production." The EPA announced that decision in a letter dated November 2, 2011. The letter explained that the EPA was rejecting the request for mandatory toxicity testing because Earthjustice's petition had not included information sufficient to support certain factual findings that EPA must make before it is authorized to order toxicity testing. The statutorily-required factfindings include determinations that there is insufficient existing data regarding the effects that exposure to a substance has on health and the environment, and also that testing is necessary in order to develop such data.
As for the disclosure regulations that EPA has agreed to draft, it is unclear exactly what information will need to be disclosed. Earthjustice's petition asked that chemical manufacturers be required to supply EPA with "various records," including the chemical and trade names of all substances manufactured for use in hydraulic fracturing, along with other information regarding each substance, including the amount produced; all existing data concerning the effects of exposure on health and the environment; copies of all health and environmental studies "known to" the manufacturers; and information regarding all adverse health or environmental effects that the manufacturers know have been "alleged to have been caused" by the substance.
Earthjustice, along with approximately 120 other organizations, submitted the August 4 petition pursuant to 15 U.S.C. § 2620 (section 21 of TSCA), which allows citizens to petition the EPA to draft TSCA regulations.
Earthjustice is a San Francisco based organization whose website states that the organization was founded in 1971 as the Sierra Club Legal Defense Fund, but that the group later changed its name to reflect that it is independent of the Sierra Club, and that it provides legal representation to "hundreds" of clients in addition to the Sierra Club.
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