United States: TSCA On Hydraulic Fracturing: Gateway To New Federal Rules?

Last Updated: September 30 2014
Article by Michael L. Krancer, Margaret A. Hill and Frank L. Tamulonis III

Action Items: To avoid and discourage duplicative and unnecessary federal oil and gas regulations, oil and gas operators should resist federal efforts to federalize hydraulic fracturing regulations and should actively engage with state regulators to craft innovative and practical regulations at the state level.

Historically, states have taken the lead in regulating oil and gas development given the states' primary interest in securing rational oil and gas development in their own boundaries. Hydraulic fracturing—a 60-year-old technology used for oil and gas development—is a temporary process of pumping fluids underground for the purpose of extraction of natural gas or oil from deep formations lying 5,000 to 8,000 feet or more below the surface. Fresh groundwater is located from about less than 600 feet below the surface. Hydraulic fracturing has been practiced routinely for decades by operators in many states, including New York.

Hydraulic fracturing has, by design, never been regulated by the federal government. It has always been a matter of state regulation. The U.S. Environmental Protection Agency (EPA) has never intended or thought that hydraulic fracturing is or should be subject to any federal regulatory program, including the Safe Drinking Water Act's Underground Injection Control (UIC) program. Instead, the EPA shared the view that the practice was well-regulated by the various states in which it was taking place.

The federal imprimatur on state regulation of hydraulic fracturing was reaffirmed by Congress as recently as 2005 with the enactment of the Energy Policy Act of 2005, and by the EPA in a 2004 study that concluded that hydraulic fracturing poses little or no threat to drinking water, and that no further study is necessary. Importantly, the 2004 EPA study was reaffirmed by a new study just released from the much more agile—and more scientifically competent with respect to hydraulic fracturing—Department of Energy (DOE). This study shows no impact whatsoever between hydraulic fracturing and threats to drinking water supplies. The study, released Monday, was performed by the DOE's National Energy Technology Laboratory. It monitored a hydraulic fracturing operation in Greene County, Pa., for upward fracture growth out of the target zone and upward gas and fluid migration. Results showed that "fracture growth ceased more than 5,000 feet below drinking water aquifers and there was no detectable upward migration of gas or fluids from the hydraulically fractured Marcellus Shale."

Both the 2004 and 2014 studies focus on hydrology and geology in reaching their conclusions, and therefore support the practice to allow states to take the lead in regulating oil and gas production. The current practice is just common sense given the diverse geological and hydrogeological conditions present in states where hydraulic fracturing is done. It would be impractical and ineffective to craft a one-size-fits-all federal rule on hydraulic fracturing that could be implemented in states as geologically diverse as Texas, Wyoming, California and Pennsylvania.

Notwithstanding this common-sense notion that states should regulate hydraulic fracturing in their own backyards— a policy currently shared by presidents, the EPA and Congress—it appears that the EPA may be making a backdoor power grab to end the era of state primacy on this issue. Chief among the EPA's strategic arsenal is the use of the Toxic Substances Control Act (TSCA) to regulate hydraulic fracturing by regulating oil and gas chemicals used in energy development. The agency's strategy is indeed ironic given the fact that the states involved in hydraulic fracturing have extensive chemical substance disclosure requirements in place already.

The consideration of TSCA's disclosure requirements began in all too typical "friendly lawsuit or petition" fashion in 2011 when Earthjustice, and more than 100 other environmental groups, submitted a TSCA Section 21 petition requesting that the EPA initiate rulemakings for hydraulic fracturing chemicals under Sections 4 and 8 of the TSCA. Specifically, the petition requested that the EPA adopt a rule pursuant to TSCA Section 4 that would require chemical manufacturers and processors to conduct toxicity tests of chemical substances and mixtures used in oil and gas production. Additionally, the petition requested that the EPA adopt a rule pursuant to TSCA Section 8 that would require chemical manufacturers and processors to report information on all chemical substances used in oil and gas exploration. The EPA ultimately denied the requested Section 4 action, but shortly thereafter, the EPA partially granted the petitioners' requests under Section 8, stating, "We believe there is value in initiating a proposed rulemaking process using TSCA authorities to obtain data on chemical substances and mixtures used in hydraulic fracturing." The EPA filed a notice of its intent to publish an advance notice of proposed rulemaking (ANPRM), requesting comment on what information should be required to be reported or disclosed regarding hydraulic fracturing chemical substances and mixtures. That public comment period closed Thursday.

The TSCA is a "gateway" statute in that it allows the EPA to collect information that may be used to justify additional federal regulation in other programs. In that sense, the ANPRM, by itself, will not directly result in additional federal regulation. Nevertheless, the petition, and the EPA's response, represents a critical first step—it represents a call for new and comprehensive regulation over the oil and gas industry.

It is difficult to predict precisely how the ANPRM will affect federal regulation of hydraulic fracturing. There are several other federal actions under way that could be directly impacted by the information and data garnered during the stakeholder process initiated by the ANPRM. For instance, the Department of the Interior's Bureau of Land Management (BLM) issued draft rules in May 2013 for hydraulic fracturing on federally owned lands. The ANPRM specifically mentions the BLM rules, which would require public disclosure of chemicals used in hydraulic fracturing operations on BLM-managed lands. It is unclear whether the BLM rules and TSCA rules will be similar in scope, but it is possible that oil and gas operators will face disclosure requirements under both.

Another program potentially affected by the ANPRM stakeholder process is the EPA's glacial ongoing study of what effects, if any, hydraulic fracturing may have on drinking water resources. That study, which began in 2010 and is expected to conclude in 2016, aims to understand the relationship between hydraulic fracturing and drinking water resources, and identify factors that may lead to human exposure and risks. Any information collected during this study could influence any TSCA-related rulemaking. Conversely, any information gathered during the rulemaking process could inform the drinking water study.

The ANPRM stakeholder process could also impact the exemption for wastes generated by oil and gas exploration and production (E&P wastes) activities under the Resource Conservation and Recovery Act (RCRA). Since 1988, certain E&P wastes have been exempt from RCRA Subtitle C hazardous waste management requirements. This exemption is justified on the basis that E&P wastes are large-volume wastes that are lower in toxicity than other wastes regulated under the RCRA hazardous waste program. Moreover, E&P wastes are generally subject to non-hazardous waste regulation under RCRA Subtitle D and applicable state regulations. Indeed, many states have specific regulations and guidance for E&P wastes. That said, the increase in hydraulic fracturing activities and shifting political winds have led to calls for additional E&P waste regulation under the RCRA umbrella. Any potential TSCA rulemaking could provide additional ammunition to environmental groups seeking to roll back the RCRA E&P exemption.

Another point of "mission creep" into the state's regulatory primacy is ASTM International's development of two standards related to hydraulic fracturing. ASTM Subcommittee D18.26 was established to pursue standards pertaining to all aspects of hydraulic fracturing. Additionally, ASTM Subcommittee D.19.09 will address hydraulic fracturing issues, including standards used for assessing water quality and determining the impact of spills and possible contamination. Although not yet finalized, the availability of ASTM standards could facilitate federal regulation of hydraulic fracturing by allowing Congress or federal agencies to incorporate those standards by reference into statutes or regulations.

All the while, states have continued to work hard to develop comprehensive regulatory schemes to permit and regulate oil and gas development including hydraulic fracturing activities. Numerous states have passed increasingly stringent disclosure laws and other regulations tailored to those states' hydraulic fracturing operations. For example, in March, Wyoming enacted one of the nation's most stringent regulations related to well water testing near drilling sites. Colorado also introduced the country's first standards for methane emissions from oil and gas operations. And, in Pennsylvania, we adopted Act 13, which contains one of the most forward-thinking and expansive disclosure laws in the nation. Our law provides for disclosure through a publicly accessible Web-based database known as FracFocus. org, and for mandatory disclosure—even of proprietary information—to health care professionals for the purpose of diagnosis or treatment and immediately in an emergency. Indeed, the Commonwealth Court held in July in Robinson Township v. Commonwealth of Pennsylvania, No. 284 M.D. 2012, that Act 13's medical disclosure provisions were appropriate and protective.

As a result of these state initiatives, energy companies are subject to an increasingly complex and stringent array of state regulations. The presence and success of these state-led efforts calls into question the necessity and potential effectiveness of greater federal intervention.

It is clear that the EPA is cognizant of the efforts undertaken by states to regulate hydraulic fracturing and, despite the increasing momentum favoring federal regulation, the EPA repeatedly stated in the ANPRM its interest in avoiding duplication and overlap with other regulatory disclosure programs. In so doing, the EPA has recognized that TSCA Section 9 requires that the EPA consult and coordinate with other executive departments and agencies to impose the least burden of duplicative requirements. Section 9 does not, however, prohibit the EPA from imposing disclosure requirements that are more restrictive than other state requirements. And yet, many states have engaged industry and other stakeholders to develop innovative approaches requiring best practices from industry. The EPA may be willing to continue to take a back seat where it is determined that state disclosure requirements and other hydraulic fracturing regulations are sufficiently comprehensive. Accordingly, oil and gas operators may find it advisable to actively engage with state regulators to craft innovative and practical regulations at the state level, so as to possibly avoid or discourage a duplicative one-size-fits-all federal solution.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Michael L. Krancer
Margaret A. Hill
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions