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[Federal Register Volume 79, Number 96 (Monday, May 19, 2014)]
[Proposed Rules]
[Pages 28664-28670]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-11501]

[[Page 28664]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[EPA-HQ-OPPT-2011-1019; FRL-9909-13]
RIN 2070-AJ93

Hydraulic Fracturing Chemicals and Mixtures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: In its response to a citizen petition submitted under section 
21 of the Toxic Substances Control Act (TSCA), EPA indicated that as a 
first step, it would convene a stakeholder process to develop an 
approach to obtain information on chemical substances and mixtures used 
in hydraulic fracturing. To gather information to inform EPA's 
proposal, the Agency is issuing this advance notice of proposed 
rulemaking (ANPR) and initiating a public participation process to seek 
comment on the information that should be reported or disclosed for 
hydraulic fracturing chemical substances and mixtures and the mechanism 
for obtaining this information. This mechanism could be regulatory 
(under TSCA section 8(a) and/or section 8(d)), voluntary, or a 
combination of both and could include best management practices, third-
party certification and collection, and incentives for disclosure of 
this information. In addition, the Agency is seeking comment on ways of 
minimizing reporting burdens and costs and of avoiding the duplication 
of state and other federal agency information collections, while at the 
same time maximizing data available for EPA risk characterization, 
external transparency, and public understanding. Also, EPA is 
soliciting comments on incentives and recognition programs that could 
be used to support the development and use of safer chemicals in 
hydraulic fracturing.

DATES: Comments must be received on or before August 18, 2014.

ADDRESSES: Submit your comments, identified by docket identification 
(ID) number EPA-HQ-OPPT-2011-1019, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Mail: Document Control Office (7407M), Office of Pollution 
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 
Pennsylvania Ave. NW., Washington, DC 20460-0001.
     Hand Delivery: To make special arrangements for hand 
delivery or delivery of boxed information, please follow the 
instructions at http://www.epa.gov/dockets/contacts.html.
    Additional instructions on commenting or visiting the docket, along 
with more information about dockets generally, is available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT:
    For technical information contact: Mark Seltzer, Chemical Control 
Division (7405M), Office of Pollution Prevention and Toxics, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460-0001; telephone number: (202) 564-2901; email 
address: seltzer.mark@epa.gov.
    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 
554-1404; email address: TSCA-Hotline@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

    This action is directed to the public in general. This action, 
however, may be of interest to you if you manufacture (including 
import), process, or distribute chemical substances or mixtures (Ref. 
1) used in any type or method of hydraulic fracturing. This may include 
businesses that fall under North American Industry Classification 
System (NAICS) codes 2111 (oil and gas extraction) and/or 2131 (support 
activities for mining). EPA anticipates that this ANPR may also be of 
interest to states, tribes, and other industries. Since additional 
entities may also be interested, the Agency has not attempted to 
describe all the specific entities that may be interested in this 
action.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting confidential business information (CBI). Do not 
submit this information to EPA through regulations.gov or email. 
Clearly mark the part or all of the information that you claim to be 
CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark 
the outside of the disk or CD-ROM as CBI and then identify 
electronically within the disk or CD-ROM the specific information that 
is claimed as CBI. In addition to one complete version of the comment 
that includes information claimed as CBI, a copy of the comment that 
does not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    2. Tips for preparing your comments. When submitting comments, 
remember to:
    i. Identify the document by docket ID number and other identifying 
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information 
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced. Likewise, if you estimate the universe of affected 
reporters, explain how you arrived at your estimate in sufficient 
detail to allow for it to be reproduced.
    vi. Provide specific examples to illustrate your concerns and 
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of 
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period 
deadline identified.

II. Background

    EPA received a petition from Earthjustice and 114 other groups on 
August 4, 2011, requesting that EPA issue TSCA section 4 and TSCA 
section 8 rules requiring toxicity testing of chemicals and mixtures 
used in oil and gas exploration and production; reporting to EPA, among 
other things, the identity of those chemicals and mixtures; and 
submitting to EPA health and safety studies on the chemicals and 
mixtures (Ref. 2). On November 2, 2011, EPA provided an initial 
response to the petition (Ref. 3). In that response, EPA denied the 
TSCA section 4 request for issuance of a test rule because the petition 
did not set forth sufficient facts to conclude that it was ``necessary 
to issue'' the requested TSCA section 4 rule, as required by TSCA 
section 21(b)(1). On November 23, 2011, EPA granted in part and denied 
in part the TSCA section 8(a) and section 8(d) requests by limiting the 
scope from chemicals and mixtures used in all processes of oil and gas 
exploration and production to chemical substances and mixtures used in 
hydraulic fracturing

[[Page 28665]]

(Refs. 4 and 5). EPA published a document with the Agency's rationale 
for its response to the petition in the Federal Register of July 11, 
2013 (Ref. 5). To facilitate public comment, the Agency stated its 
intent to publish an ANPR to identify key issues for further discussion 
and analysis.
    EPA maintains continuing coordination with its Federal partners in 
planning information reporting rules that will complement the Bureau of 
Land Management's (BLM) proposed regulation: Oil and Gas; Hydraulic 
Fracturing on Federal and Indian Lands (78 FR 31636, May 24, 2013). BLM 
subsequently issued a supplemental proposal and extension of comment 
period for that proposed rule (78 FR 34611, June 10, 2013). The intent 
of these dialogues is to ensure both EPA's and BLM's efforts provide 
useful information for assessment and disclosure purposes, while not 
overly burdening reporting entities.

A. What action is the Agency taking?

    With this ANPR, EPA is initiating a stakeholder process to request 
input on various aspects of obtaining information on chemical 
substances and mixtures used in hydraulic fracturing for oil and gas 
exploration and production to further the purposes of TSCA (TSCA 
section 2 sets forth the findings, policy, and intent of Congress in 
enacting TSCA) and other federal government objectives that can be 
informed through this process. As part of this effort, EPA seeks input 
on appropriate disclosure to ensure that information about the 
chemicals and mixtures used in hydraulic fracturing activities is 
provided to the public in a transparent fashion. These activities 
include the injection of water, chemicals, proppant, and/or tracers to 
prepare geologic formations for hydraulic fracturing, complete a 
hydraulic fracturing stimulation stage, evaluate the extent of 
resulting fractures, or ensure future ability to continue enhancement 
of production through stimulation by hydraulic fracturing. During each 
hydraulic fracturing stimulation stage, pressurized fluids containing 
carrier fluids such as water or gas and any combination of proppant and 
chemicals are injected into wells to fracture portions of the formation 
surrounding a selected well section. As discussed in more detail in 
Unit IV., EPA is requesting comment on the information that should be 
obtained or disclosed and the mechanism for obtaining or disclosing 
this information about chemicals and mixtures used in hydraulic 
fracturing. This mechanism could be regulatory (under TSCA section 8(a) 
and/or section 8(d)), voluntary (e.g., under the Pollution Prevention 
Act (PPA) (42 U.S.C. 13101 et seq.)), or a combination of both. EPA is 
also seeking comment on best management practices for the generation, 
collection, reporting and/or disclosure of public health and 
environmental information from or by companies that manufacture, 
process, or use chemical substances or mixtures in hydraulic fracturing 
activities--that is, practices or operations that can be implemented 
and verified toward achieving protection of public health and the 
environment--and whether voluntary third-party certification, and 
incentives for disclosure could be valuable tools for improving 
chemical safety. In addition, the Agency is seeking comment on ways to 
minimize reporting burdens and costs, avoid duplication of efforts, and 
maximize transparency and public understanding. Finally, EPA is 
soliciting comments on incentives and recognition programs that could 
be used to support the development and use of safer chemicals in 
hydraulic fracturing.

B. What is the Agency's authority for this action?

    TSCA section 8(a) (15 U.S.C. 2607(a)) authorizes EPA to promulgate 
rules under which manufacturers (including importers) and processors of 
chemical substances must maintain records and submit information as the 
EPA Administrator may reasonably require. TSCA section 8(a) also 
authorizes EPA to promulgate rules under which manufacturers and 
processors of mixtures must maintain records and submit information to 
the extent the EPA Administrator determines the maintenance of records 
or submission of reports, or both, is necessary for the effective 
enforcement of TSCA. TSCA section 8(a) generally excludes small 
manufacturers and processors of chemical substances or mixtures from 
the reporting requirements (see 15 U.S.C. 2507(a)). This general 
exclusion has been codified at 40 CFR 704.5 and 712.25. However, EPA is 
authorized by TSCA section 8(a)(3)(A)(ii) to require TSCA section 8(a) 
reporting from small manufacturers and processors with respect to any 
chemical substance or mixture that is the subject of a rule proposed or 
promulgated under TSCA section 4, 5(b)(4), or 6, or that is the subject 
of an order in effect under TSCA section 5(e), or that is the subject 
of relief granted pursuant to a civil action under TSCA section 5 or 7. 
TSCA section 8(a) also notes that, to the extent feasible, the EPA 
Administrator must not require reporting under TSCA section 8(a)(1) 
that is unnecessary or duplicative.
    TSCA section 8(d) (15 U.S.C. 2607(d)) authorizes EPA to require the 
submission of lists of health and safety studies conducted or initiated 
by or for, or known to or reasonably ascertainable by manufacturers, 
processors, and distributors of (and any person who proposes to 
manufacture, process, or distribute) any chemical substance or mixture. 
Certain types or categories of studies may be excluded ``if the 
Administrator finds that submission of lists of such studies are 
unnecessary to carry out the purposes of [TSCA]'' (see TSCA section 
8(d)(1)). TSCA section 8(d) also authorizes EPA to require the 
submission of copies of studies on these lists or copies of studies 
that are otherwise known by the person submitting the list.
    The Pollution Prevention Act (PPA) (42 U.S.C. 13101 et seq.) makes 
pollution prevention the national policy of the United States. The PPA 
identifies an environmental management hierarchy in which pollution 
``should be prevented or reduced whenever feasible; pollution that 
cannot be prevented should be recycled in an environmentally safe 
manner, whenever feasible; pollution that cannot be prevented or 
recycled should be treated in an environmentally safe manner whenever 
feasible; and disposal or release into the environment should be 
employed only as a last resort . . .'' (42 U.S.C. 13103). Among other 
requirements, the PPA directs EPA to develop improved methods of 
coordinating, streamlining and assuring public access to data collected 
under Federal environmental statutes; facilitate the adoption of 
source-reduction techniques by businesses; and establish an annual 
awards program to recognize a company or companies that operate 
outstanding or innovative source reduction programs.

III. Overview of Information Collection Authority Under Sections 8(a) 
and 8(d) of TSCA

A. TSCA Section 8(a)

    TSCA section 8(a) gives EPA authority to require, by rulemaking, 
chemical manufacturers and processors to maintain records and submit to 
EPA such reports as EPA may reasonably require, including reports 
concerning the following, insofar as it is known to or reasonably 
ascertainable by the person making the report:
     The common or trade name, the chemical identity, and the 
molecular structure of each chemical substance or

[[Page 28666]]

mixture for which such a report is required.
     The categories or proposed categories of use of each 
chemical substance or mixture.
     The total amount of each chemical substance or mixture 
manufactured or processed, reasonable estimates of the total amount to 
be manufactured or processed, the amount manufactured or processed for 
each of its categories of use, and reasonable estimates of the amount 
to be manufactured or processed for each of its categories of use or 
proposed categories of use.
     A description of the byproducts resulting from the 
manufacture, processing, use, or disposal of each chemical substance or 
mixture.
     All existing data concerning the environmental and health 
effects of each chemical substance or mixture.
     The number of individuals exposed, and reasonable 
estimates of the number who will be exposed, to each chemical substance 
or mixture in their places of employment and the duration of such 
exposure.
     The manner or method of disposal of each chemical 
substance or mixture, and any subsequent changes to such manner or 
method.

B. TSCA Section 8(d)

    TSCA section 8(d) authorizes EPA to require manufacturers, 
processors, and distributors of any chemical substance or mixture and 
persons who propose to manufacture, process, or distribute in commerce 
any chemical substance or mixture to submit health and safety studies 
to EPA. Examples of health and safety studies can be found in 40 CFR 
716.3, and include:
     Epidemiological or clinical studies.
     Studies of occupational exposure.
     Health effects studies.
     Ecological effects studies.
     Assessments of environmental exposure.
     Environmental fate studies.
     Health and safety studies related to surface or ground 
water sampling and analyses that are aggregated and analyzed to measure 
exposure.

IV. Request for Comment

    EPA is requesting comment on the design and scope of potential 
regulatory or voluntary approaches, or combination of both approaches, 
to obtain information on chemical substances and mixtures used in 
hydraulic fracturing. EPA invites comments on all aspects of this ANPR, 
including the description of hydraulic fracturing activities presented 
in Unit II.A. Comments should provide enough detail and contain 
sufficient supporting information in order for the Agency to understand 
the issues raised and give them the fullest consideration. Comments 
should include alternatives, rationales, benefits, technological and 
economic feasibility (including costs), and supporting data. Supporting 
information should include any information that substantiates your 
conclusions and recommendations, including, but not limited to: 
Experiences, data, analyses, studies and articles, and standard 
professional practices. If referring to a particular well site as an 
example, please identify the company name of the well site operator, 
well name, latitude and longitude coordinates and American Petroleum 
Institute (API) identification number, if available.

A. Overall Approach To Reporting and Disclosure of Chemical Substances 
and Mixtures Used in Hydraulic Fracturing

    In this ANPR, EPA is seeking comment on what information should be 
reported to EPA (or through a CBI cleared third-party certifier) or 
disclosed publically (by EPA) regarding the identity, quantities, types 
and circumstances of uses of chemical substances and mixtures used in 
hydraulic fracturing, as well as what types of health and safety 
studies should be reported or disclosed. EPA is seeking comment on 
whether and how data that are claimed to be trade secrets, or CBI, 
could be reported to EPA (or a third-party certifier) and then 
aggregated and disclosed while protecting the identities of individual 
products and firms. EPA is also requesting comment on the appropriate 
mix of voluntary disclosure and/or regulatory reporting mechanisms. The 
specific types of information that could be reported or disclosed are 
discussed in Units IV.C. and IV.G. It should be noted that TSCA section 
8(e) requires manufacturers, importers, processors, and distributors to 
provide EPA with information on any of their chemical substances or 
mixtures that reasonably supports the conclusion that such substance or 
mixture presents a substantial risk of injury to health or the 
environment.
    EPA is requesting comment on the following questions:
    1. Should all information be required to be reported or should 
there be a voluntary mechanism for some or all information?
    2. Would a combination of mandatory reporting and voluntary 
disclosure be effective? If so, what would that combination consist of? 
Why?
    3. What types of information, if any, should be required to be 
reported? Why?
    4. How could any required reporting activities be designed to 
better facilitate compliance?
    5. What types of information, if any, should be reported and/or 
disclosed voluntarily? Why?
    6. What are the best management practices for the generation, 
collection, reporting and/or disclosure of information from or by 
companies?
    7. Are there particular systems in place that already use these 
best management practices? Please identify these systems.
    8. To what extent are these best management practices widely 
adopted? Please provide evidence regarding the extent of use of best 
management practices.
    9. How could incentives be structured to ensure effective voluntary 
disclosure of information on chemical substances and mixtures used in 
hydraulic fracturing?
    10. Are there incentives that could be used in combination with 
regulatory requirements for information disclosure to promote practices 
that go beyond compliance (e.g., incentives that encourage reporting in 
addition to that required by regulation)?
    11. What information collection tools and resources are available 
to support and promote safer chemical use and other sustainable 
practices (e.g., some form of cradle-to-grave chemical management)? 
Please explain.
    12. What factors should be considered for distinguishing among 
different types of companies for the purpose of incentives?
    13. What information collection tools and resources are available 
to support, incentivize, and promote safe and sustainable practices? 
Please explain.
    14. How could collected information be used to better inform safe 
and sustainable practices? For example, would providing information or 
guidance on improved chemical use across different types of firms 
involved in hydraulic fracturing better inform safe and sustainable 
practices?
    15. What mechanisms could be developed to make information that is 
reported to EPA publically disclosed and available?
    16. How could information reported and/or disclosed under any such 
mechanism be used to better inform research and development of chemical 
substances and mixtures used in hydraulic fracturing?

[[Page 28667]]

B. Who should report or disclose information on chemical substances and 
mixtures used in hydraulic fracturing?

    TSCA section 8(a) gives EPA authority to require, by rulemaking, 
chemical manufacturers and processors to maintain records and submit to 
EPA reports about chemical substances and mixtures, as well as 
environmental and health data on those substances and mixtures. The 
hydraulic fracturing industry includes a variety of companies that 
could be subject to reporting under TSCA section 8(a). These companies 
could include chemical manufacturers, chemical suppliers who engage in 
processing, service providers mixing chemicals on site to create the 
hydraulic fracturing fluids, and service providers responsible for 
injecting the hydraulic fracturing fluid into the well to fracture the 
formation. EPA is requesting comment on whether, in the context of a 
potential reporting and/or disclosure program, all or any companies 
should be required to report or whether a specific type or types of 
company (e.g., chemical supplier) should be required to report and 
other types (e.g., service provider) be encouraged to report 
voluntarily.
    1. If any companies are required to report, should different types 
of companies be required to report different data elements? Please 
explain.
    2. Should manufacturers (including importers), processors, or both 
be required to report under TSCA section 8(a)? Why or why not?
    3. Are there additional NAICS codes in addition to 2111 (oil and 
gas extraction) and 2131 (support activities for mining) that would 
need to be included in order to cover chemical manufacturers (including 
importers) and processors in a potential reporting and/or disclosure 
program?
    4. In what ways do the responsibilities of manufacturers and 
processors (Ref. 6) overlap? What activities associated with hydraulic 
fracturing are carried out by the well operator at the well site? EPA 
understands that service providers or well operators often process 
chemicals at the drilling site.
    5. Would manufacturers (including importers), service providers, 
well operators, or all three, know how a chemical substance or mixture 
is used at well sites? If all types of firms have this information, 
which type, if any, should be required to report? If neither well 
operators, nor service providers, nor manufacturers (including anyone 
who imports chemicals or otherwise undertakes activities that meet the 
definition of ``manufacture'' at 40 CFR 704.3) know how a chemical is 
used at well sites, who would know and how might that information be 
obtained?
    6. If voluntary mechanisms are used for obtaining information, what 
mechanisms (e.g., incentive programs) should EPA consider in order to 
encourage consistent reporting and/or disclosure from different types 
of companies? Would some mechanisms be more effective for one type of 
company than another?
    7. Should there be different incentives for different types of 
companies (e.g., manufacturers vs. processors)?
    8. What information collection tools and resources are available to 
support and promote safe and sustainable practices? Please explain.

C. Scope of Reporting or Disclosure of Information on Chemical 
Substances and Mixtures Used in Hydraulic Fracturing

    In this ANPR, EPA is seeking comment on the information that should 
be reported or disclosed regarding chemical substances and mixtures 
used in hydraulic fracturing. EPA is exploring various regulatory 
approaches, voluntary approaches or a combination of both for obtaining 
this information.
    As described in Unit III.A., TSCA section 8(a) gives EPA authority 
to require, by rulemaking, chemical manufacturers and processors to 
maintain records and submit to EPA such reports as EPA may reasonably 
require. EPA expects that data obtained could be aggregated to provide 
a national list of the chemical substances and mixtures used in 
hydraulic fracturing, providing the Agency with the ability to 
determine which chemicals are used most frequently. For chemicals that 
have not been previously well-characterized in terms of their chemical, 
physical, and toxicological properties, EPA may conduct research to 
better understand these properties in order to perform a basic risk 
characterization. Information that could be required from manufacturers 
(including importers) and processors under a potential reporting 
program could include:
    1. Basic company information (i.e., company name, mailing address, 
Web site, and technical contact information).
    2. Steps involved in processing chemicals or mixtures on site 
before injection. Typical composition and performance standard of 
hydraulic fracturing fluid as an end use product, before injection.
    3. Steps involved in processing chemicals or mixtures for reuse, 
recycling, and/or reprocessing in the hydraulic fracturing operation.
    4. Hydraulic fracturing fluid composition:
    i. Common name or trade name of each chemical product in the 
hydraulic fracturing fluid and a description of each product's 
function.
    ii. Chemical identity (chemical name and Chemical Abstracts Service 
Registry Number) of each chemical substance in each product.
    iii. Total volume of the carrier fluid and percentage of the 
carrier fluid that makes up the total hydraulic fracturing fluid (e.g., 
water volume and percentage of water in the hydraulic fracturing 
fluid).
    iv. Actual amount of each chemical substance or product in the 
hydraulic fracturing fluid in order to understand the loading (e.g., 
mass or volume).
    5. Production type (i.e., gas and/or oil).
    6. Frequency of use of the chemical substance or mixture for 
hydraulic fracturing (e.g., number of times or per fracture stage or 
number of wells).
    7. Number of workers exposed or likely to be exposed to the 
chemical substance or mixture.
    8. All existing data concerning the human and environmental health 
effects of the chemical substance or mixture.
    9. Some chemical substances and mixtures used in hydraulic 
fracturing may react to create other chemical substances and mixtures 
as products within an on-site mixing apparatus or in the well that is 
being fractured. EPA is requesting comments on which reporting elements 
should be included:
    i. If EPA were to require reporting, how should EPA address 
chemical substances and mixtures which are formed on site? Why?
    ii. Is there other information obtainable under TSCA section 8(a) 
that should be included in a proposed TSCA section 8(a) rule? What are 
the chemical safety benefits (e.g., potential reduction of risk to 
human health and environment) of obtaining this information? Explain.
    iii. Should EPA consider including reporting on any combination of 
water and/or chemicals introduced or intended to be introduced into an 
oil or gas well for the purpose of maintaining or improving the 
function and productivity of the well, including recovery methods, 
(e.g., acid treatments, corrosion inhibitors, scale reducers, 
biocides)? Why or why not? EPA is interested in information regarding 
the frequency, duration, concentration, and volume of use of such 
chemicals or chemical mixtures to enhance the Agency's understanding of 
well

[[Page 28668]]

maintenance practices, in order to evaluate the need for additional 
disclosure.
    10. While EPA could require manufacturers and processors to report 
this information, the Agency could also encourage companies engaged in 
hydraulic fracturing to voluntarily disclose it. EPA is requesting 
comments on reporting elements which should be included:
    i. Which elements (as discussed earlier in Unit IV.C.), if any, may 
benefit from being proposed as part of a TSCA section 8(a) rule? Which 
elements, if any, may benefit better from being reported and/or 
disclosed under a voluntary program?
    ii. Are there data elements (from those discussed earlier in Unit 
IV.C.) for which a hybridized reporting and/or disclosure system (e.g., 
some regulatory elements, some voluntary elements) would be more 
efficient or beneficial?

D. Use of Third-Parties

    EPA is requesting comments on the use of third-parties for the 
collection of information on chemical substances used in hydraulic 
fracturing and/or to certify the use of best practices.
    1. Should EPA consider implementing third-party certification (for 
certifying reporting, practices and other aspects) and/or third-party 
collection of information about hydraulic fracturing operations in 
addition to or in lieu of a mandatory reporting or voluntary disclosure 
program?
    2. What would such a certification program look like?
    3. Are there existing programs that already certify best practices? 
Are they effective? Are they independent? Could they be improved? How?
    4. What should be considered (e.g. standards for third-parties, 
standards for collecting chemical information, costs) in implementing a 
third-party program?
    5. How should chemical information be managed by third-parties? Are 
there specific roles that third-parties should have in data management? 
Please explain.
    6. How should a third-party certifier be funded? How could 
perceived or actual bias be minimized?

E. Reporting Threshold and Frequency of Reporting or Disclosure

    EPA is interested in comments regarding the threshold for the size 
of entities that should be required or encouraged to report or disclose 
information on chemical substances and mixtures used in hydraulic 
fracturing and environmental and health data on those substances and 
mixtures. EPA is also interested in comments regarding how often 
reporting or disclosure should take place:
    1. Are there thresholds that might be appropriate to limit 
reporting by small manufacturers or processors under either a 
regulatory or a voluntary program (e.g., the thresholds that define 
``small manufacturer'' in 40 CFR 704.3 and 712.25)? Why? If available, 
how would the recommended reporting threshold affect cost to the 
reporting entity? How might different reporting thresholds affect the 
usefulness of the data provided?
    2. Given possible changes in the composition of hydraulic 
fracturing fluids over time and changes in ownership of a well, how 
often and when should an entity report information to EPA or publicly 
disclose it?
    3. What would be the effect of changes in the frequency of 
reporting and/or disclosure on the overall cost of reporting or 
disclosure? What would be the effect of changes in level of aggregation 
or other aspects of reporting and/or disclosure?

F. Data Collection Efficiency

    EPA believes that any mechanism for reporting and/or disclosure of 
information on chemical substances and mixtures should be structured in 
a manner that minimizes the potential for duplication and overlap.
    1. EPA requests comment on how best to minimize duplicative 
reporting and/or disclosure requirements, particularly for companies 
that may also report to the BLM, state agencies, and to other parties. 
For example, should EPA limit its data collection to items not 
collected by other parties? How much overlap is acceptable?
    2. How can the Agency achieve the goal of efficient data collection 
while also maximizing transparency and public understanding?
    3. In order to encourage transparency and information sharing while 
minimizing duplication, what information collection repository or 
database should EPA use? Should EPA develop a repository or use an 
existing one such as FracFocus (Ref. 7) or http://www.data.gov? If an 
existing repository is recommended, indicate which repository and why. 
Are any changes or enhancements recommended to this existing 
repository?
    4. EPA believes that any TSCA reporting requirements should 
complement existing reporting programs and data sources, such as state 
databases and Web sites like FracFocus in order to avoid duplication. 
How could this be achieved?

G. Health and Safety Studies of Chemicals and Mixtures Used in 
Hydraulic Fracturing

    EPA is seeking comment on potential options for reporting or 
disclosure of health and safety studies for chemical substances and 
mixtures used in hydraulic fracturing.
    As described in Unit III.B., TSCA section 8(d) authorizes EPA to 
require manufacturers, processors, and distributors of any chemical 
substance or mixture and persons who propose to manufacture, process, 
or distribute in commerce any chemical substance or mixture to submit 
health and safety studies to EPA. One mechanism for the collection of 
these studies is TSCA section 8(d). Other mechanisms could include 
voluntary approaches. EPA is requesting comment on the types of 
companies that would report or disclose health and safety studies. EPA 
also is requesting comment on whether companies should be required to 
report studies or be encouraged to disclose studies, or whether a 
combination of regulatory and voluntary approaches should be used to 
obtain health and safety studies.
    1. Should all manufacturers (including importers), processors, and 
distributors provide lists or copies of health and safety studies or 
should reporting only be required of some types of companies? Why or 
why not?
    2. Are there existing mechanisms in place, including non-regulatory 
mechanisms, for EPA to obtain these studies? If not, what would be an 
effective regulatory approach and/or voluntary mechanism for EPA to 
obtain these studies?
    3. Is there an approach that more effectively encourages further 
health and safety studies?
    4. Some chemical substances and mixtures used in hydraulic 
fracturing are more studied than others. Some are considered to be 
well-characterized in terms of hazard and exposure information. If EPA 
were to require reporting, should EPA limit reporting requirements to 
the chemical substances and mixtures that EPA believes are not well-
characterized? Why?
    5. If a TSCA section 8(d) rule were promulgated, should it require 
reporting of studies for all chemical substances and mixtures used in 
hydraulic fracturing or only a subset? Why? If only certain chemicals 
should be included in the rule, which ones should EPA include?
    6. Are there particular types of studies that should be required to 
be submitted or should all health and safety studies be required to be 
submitted? Why?

[[Page 28669]]

    7. Are there studies that are of greater interest if they are 
conducted by a particular entity, e.g., service providers? For example, 
an assessment of environmental exposure may be viewed as more important 
because of the environment that is the focus of the study.
    8. Would it be more efficient (timely and cost effective) to submit 
health and safety studies to a third-party? Why or why not? If so, why 
and what type of third-party?

H. Safer Chemicals and Transparency

    Incentives and recognition programs could be used to support the 
development and use of safer chemicals (both those created deliberately 
and inadvertently) in hydraulic fracturing. Safer chemicals are 
generally less toxic to human health and the environment, and are less 
persistent and bioaccumulative than their alternatives. Under an EPA-
sponsored voluntary initiative, EPA could provide resources and 
recognition for companies committed to promoting and using safe and 
sustainable practices. Such a voluntary program could help companies 
meet corporate sustainability goals by providing the means to, and an 
objective measure of, environmental stewardship. Information that could 
be collected or disclosed under such a voluntary program could be used 
to verify a company's eligibility for award or recognition in relation 
to identified measures and goals.
    There are existing programs that encourage the development of safer 
chemicals (e.g., the Green Chemistry program and the Sustainable 
Futures program) or the use of safer substitutes (e.g., Design for the 
Environment) which may serve as models for application to hydraulic 
fracturing. A similar program focusing on chemicals used in hydraulic 
fracturing could speed adoption by well owners, operators and suppliers 
of safer chemicals. The program could also increase public 
understanding about chemical choice and use in hydraulic fracturing.
    EPA would like to determine whether these programs could be used as 
possible models for consideration of chemicals and mixtures used in 
hydraulic fracturing and whether there are other programs that would be 
more effective. In order to determine whether replacement chemicals are 
safer, it would be important to take into account the effectiveness and 
potential associated risks with the alternative chemical. EPA requests 
comment on strategies for creating incentives and voluntary approaches 
for the development and use of safer chemicals.
    1. Are there other TSCA sections that could also further support 
the use and development of safer chemicals more effectively?
    2. What programs are appropriate to encourage the use of safer 
chemicals already on the market?
    3. For this industry, are existing programs that encourage the 
development of safer chemicals appropriate? Could EPA change those 
programs to make them more effective in inducing well operators to use 
safer chemicals? How?

V. References

    The following is a list of the materials that are specifically 
referenced in this document. The docket identified under ADDRESSES 
includes these references and other information considered by EPA. For 
assistance, please consult the technical person listed under FOR 
FURTHER INFORMATION CONTACT.

1. Toxic Substances Control Act, section 3 (15 U.S.C. 2602).
2. Earthjustice and 114 other organizations. Letter from Deborah 
Goldberg, Earthjustice to Wendy Cleland-Hamnett, Director, Office of 
Pollution Prevention and Toxics. Re: Citizen Petition Under Toxic 
Substances Control Act Regarding the Chemical Substances and 
Mixtures Used in Oil and Gas Exploration or Production. August 4, 
2011. Available on-line at: http://www.epa.gov/oppt/chemtest/pubs/Section_21_Petition_on_Oil_Gas_Drilling_and_Fracking_Chemicals8.4.2011.pdf.
3. EPA. Letter from EPA Assistant Administrator Steven A. Owens to 
Deborah Goldberg, Earthjustice, Re: TSCA Section 21 Petition 
Concerning Chemical Substances and Mixtures Used in Oil and Gas 
Exploration or Production. November 2, 2011. Available on-line at: 
http://www.epa.gov/oppt/chemtest/pubs/SO.Earthjustice.Response.11.2.pdf.
4. EPA. Letter from Assistant Administrator Steven A. Owens to 
Deborah Goldberg, Earthjustice, Re: TSCA Section 21 Petition 
Concerning Chemical Substances and Mixtures Used in Oil and Gas 
Exploration or Production. November 23, 2011. Available on-line at: 
http://www.epa.gov/oppt/chemtest/pubs/EPA_Letter_to_Earthjustice_on_TSCA_Petition.pdf.
5. EPA. Chemical Substances and Mixtures Used in Oil and Gas 
Exploration or Production; TSCA Section 21 Petition Reasons for 
Agency Response. Federal Register (78 FR 41768, July 11, 2013) (FRL-
9339-4).
6. TSCA Statutory Definitions Document. February 11, 2014.
7. FracFocus Chemical Disclosure Registry. Available on-line at: 
http://www.fracfocus.org.

VI. Statutory and Executive Order Reviews

    Under Executive Orders 12866, entitled ``Regulatory Planning and 
Review'' (58 FR 51735, October 4, 1993) and 13563, entitled ``Improving 
Regulation and Regulatory Review'' (76 FR 3821, January 21, 2011), this 
is a ``significant regulatory action'' because it raises novel legal 
and/or policy issues. Accordingly, EPA submitted this action to the 
Office of Management and Budget (OMB) for review under these Executive 
Orders and any changes made in response to OMB recommendations have 
been documented in the docket for this action.
    Because this document does not impose or propose any requirements, 
and instead seeks comments and suggestions for the Agency to consider 
in possibly developing a subsequent proposed rule, the various other 
review requirements that apply when an agency imposes requirements do 
not apply to this action. Nevertheless, as part of your comments on 
this ANPR, you may include any comments or information that could help 
the Agency to assess the potential impact of a subsequent regulatory 
action on small entities pursuant to the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.); to consider voluntary consensus standards pursuant 
to section 12(d) of the National Technology Transfer and Advancement 
Act (15 U.S.C. 272 note); to consider environmental health or safety 
effects on children pursuant to Executive Order 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997); to consider human health or 
environmental effects on minority or low-income populations pursuant to 
Executive Order 12898, entitled ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations'' (59 FR 7629, February 16, 1994); or to consider potential 
impacts to state and local governments or tribal governments.
    The Agency will consider such comments during the development of 
any subsequent rulemaking as it takes appropriate steps to address any 
applicable requirements.

List of Subjects in 40 CFR Chapter I

[[Page 28670]]

    Environmental protection, Chemicals, Confidential business 
information, Exploration and production, Fracking, Hazardous 
substances, Hydraulic fracturing, Oil and gas, Reporting and 
recordkeeping.

    Dated: May 9, 2014.
Gina McCarthy,
Administrator.
[FR Doc. 2014-11501 Filed 5-16-14; 8:45 am]
BILLING CODE 6560-50-P
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