By Kevin A. Fritz, Philip L. Comella, and Craig B. Simonsen

EPA Administrator Gina McCarthy just signed an Advanced Notice of Proposed Rulemaking (ANPR) seeking public comment to ensure that reported information about fracking chemicals and mixtures are presented to the public in a transparent fashion.

The EPA, generally, does acknowledge that fracking plays a “key role in our nation’s energy future.”  That said, the Agency continues to work with states and other key stakeholders to “ensure that natural gas extraction does not come at the expense of public health and the environment.”

In this proposed rulemaking, EPA expects that the ANPR process will “help inform EPA’s efforts to promote the transparency and safety of unconventional oil and gas activities while strengthening protection of our air, water, land and communities.” Of note, James Jones, the EPA’s Assistant Administrator for the Office of Chemical Safety and Pollution Prevention, said that the ANPR “represents an important step in increasing the public’s access to information on chemicals used in hydraulic fracturing activities.”

The issue, and the EPA’s proposal, promises to be contentious. For example, in response to the EPA ANPR, the Natural Resources Defense Council said: “it’s time for the administration to demand answers about the chemicals that are being used to frack in our communities. For too long, the oil and gas industry has been allowed to keep their chemical cocktails a secret, while injecting them underground alongside drinking water sources, storing them in families’ backyards and transporting them through neighborhood streets.  Even emergency room doctors have been refused answers necessary to treat patients who have been exposed to fracking chemicals.”

The ANPR includes a list of questions for stakeholders and the public to consider as they develop written comments. The notice suggests that the mechanism for enhancing transparency could be (1) regulatory (under TSCA section 8(a) and/or section 8(d)), (2) voluntary, or (3) a combination of both.  In addition, it could include best management practices, third-party certification/collection, and incentives for disclosure of the information.  Along with its request, the Agency is asking for comments on ways of minimizing reporting burdens and costs, and of avoiding duplication of state and other federal agency information collections.

Written comments will be due thirty days after the ANPR’s publication in the Federal Register.