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EPA solicits comments on regulating fracking, hinting at new fracking regulations in the future [US]

EPA has issued an Advance Notice of Proposed Rulemaking under Section 8 of the Toxic Substances Control Act (TSCA), requesting comments on the disclosure of chemicals used during fracking.  The action indicates that the agency is moving towards stricter regulation of hydraulic fracturing fluids.  In a move that highlights the state’s displeasure with such a move, the North Carolina legislature is considering a bill that would criminalize the disclosure of chemicals used during fracking.

EPA has issued an Advance Notice of Proposed Rulemaking under Section 8 of TSCA, requesting comments on the information that companies should report or disclose for hydraulic fracturing chemical substances and mixtures.  The action indicates that the agency is moving towards stricter regulation of hydraulic fracturing fluids.

fracturation hydraulique

Meanwhile, the North Carolina Senate passed the Energy Modernization Act, proposed legislation that would make it a crime to publicly disclose the secret chemical mixtures that energy companies use when fracking.  The legislation, which would penalize the unauthorized disclosure of the chemicals as a class 1 misdemeanor punishable by either community service or up to 120 days in jail (depending on the offender’s criminal record), now heads to the House.  The Energy Modernization Act would require energy companies to submit a list of the chemicals used to the state geologist, who would maintain the list under lock and key in case of an emergency.  The legislation would exempt the chemical lists form disclosure as a public record.  The bill has a strong likelihood of passing the Republican controlled House of Representative and being signed by Gov. Pat McCrory, a Republican and former Duke Energy executive who is an outspoken supporter of the oil and gas industry.

Industry has praised the legislation, arguing that the disclosure of the chemicals would reveal valuable trade secrets.  Environmentalists worry that restricting the disclosure and green-lighting fracking could lead to groundwater and other environmental contamination.  North Carolina suffered a major coal ash spill earlier this year when a Duke Energy coal ash pond gave way, causing millions of tons of contaminated coal ash-water to spill into the Dan River.

North Carolina appears to be on the fast track towards opening up fracking in the state by next year.  While a federal EPA rule requiring the disclosure of the chemicals used in fracking would preempt North Carolina legislation, EPA is unlikely to pass a final rule requiring such disclosures prior to North Carolina lifting a fracking moratorium mid-next year.

In EPA’s request for comment, they are specifically seeking comment on:

  • The types of chemical information that could be reported under TSCA;
  • The regulatory and non-regulatory approaches to obtain information on chemicals and mixtures used in hydraulic fracturing activities;
  • Whether fracking-related chemicals should be regulated through a voluntary mechanism under the Pollution Prevention Act of 1990.

EPA is accepting comments on the proposed rule until August 18, 2014.


EPA Advance Notice of Proposed Rulemaking: Hydraulic Fracturing Chemicals and Mixtures, May 19, 2014, Federal Register, 79 FR 28664 (https://federalregister.gov/a/2014-11501)

Energy Modernization Act, N.C. S.B. 786, May 15, 2014 (http://ncleg.net/Sessions/2013/Bills/Senate/HTML/S786v4.html)

Edward Casmere and J. Michael Showalter, USEPA takes first step toward possible federal regulation of hydraulic fracturing, Lexology, May 12, 2014 (http://bit.ly/1koowpU)

N.C. Panel Oks criminalizing disclosure of chemicals in fracking, Associated Press, May 20, 2014 (http://www.news-record.com/news/government/article_616c2e9e-e068-11e3-a240-001a4bcf6878.html)

Red-on-line EHS Legal Counsel

Image source: Christopher Halloran / Shutterstock.com

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