EPA Seeks Input on Regulating Hydraulic Fracturing Fluids under Toxic Substances Control Act

sboxermanFeatured Expert Column – Environmental Law and Policy

by Samuel B. Boxerman, Sidley Austin LLP with Ben Tannen, Sidley Austin LLP

As I have written previously in a Washington Legal Foundation Legal Backgrounder, the federal government is extending its regulatory reach over hydraulic fracturing. An example of that trend is the recent Advance Notice of Proposed Rulemaking (“ANPR”) by the U.S. Environmental Protection Agency (“EPA”) seeking comment through an advanced notice of proposed rulemaking (“ANPR”) on whether, and if so how, to impose a federal rule mandating the disclosure of the contents of chemical substances and mixtures used in hydraulic fracturing.

Currently, states where hydraulic fracturing techniques are used have already considered these questions and imposed a range of disclosure requirements. Moreover, to facilitate disclosure, state regulators and industry, working together through the Ground Water Protection Council and Interstate Oil and Gas Compact Commission, have developed a voluntary national hydraulic fracturing chemical registry accessible to the public online—FracFocus.org. Although established as a voluntary disclosure portal, to date, FracFocus has information on over 72,000 well sites and ten states have issued regulations requiring operators to use FracFocus as the means of official state chemical disclosure.

To the agency’s credit, EPA’s notice seeks comment on voluntary disclosure options, as well as using the FracFocus database as the repository for information it collects. ANPR at 1, 19.   However, EPA is also considering imposing mandatory federal disclosure rules, including mandates under Section 8 of the Toxic Substances Control Act (TSCA). Continue reading “EPA Seeks Input on Regulating Hydraulic Fracturing Fluids under Toxic Substances Control Act”