Rin2070-AJ93_HF-ANPR_FRdocument_FinalRedline_AllRevisions_2014-05-08.docx 

### Revised to address Interagency Comm ents received under EO 12866 Review.

14T-0069 Page 1 of 30 [RIN 2070-AJ93] Billing Code BILLING CODE 6560-50-P 1 ENVIRONMENTAL PRO TECTION AGENCY 2 40 CFR Chapter 1 I , Subchapter R 3 [ EPA-HQ-OPPT-2011-1019; FRL- XXXX-X 9909-13] 4 RIN 2070-AJ93 5 Hydraulic Fracturing Chemicals and Mixtures 6 AGENCY: Environmental Protection Agency (EPA). 7 ACTION: Advance notice of proposed rulemaking (ANPR).

. 8 SUMMARY: In its response to a citizen petitio n submitted under section 21 of the Toxic 9 Substances Control Act (TSCA), EPA indicated that as a first st ep, it would convene a 10 stakeholder process to develop an approach to obtain information on chemical substances and 11 mixtures used in hydraulic fracturing. To gath er information to inform EPA’s proposal, the 12 agency Agency is issuing this advance notice of proposed rulemaking ( ANPR ) and initiating a 13 public participation process to seek comment on the information that should be reported or 14 disclosed for hydraulic fracturing chemical subs tances and mixtures and the mechanism for 15 obtaining this information. This mechanism could be regulatory (under TSCA section 8(a) and/or 16 section 8(d)), voluntary , or a combination of both , and could include best management practices, 17 third-party certification and collection , and incentives for disclosure of this information. In 18 addition, the agency Agency is seeking comment on ways of minimizing reporting burdens and 19 costs and of avoiding the duplica tion of state and other federal agency information collections, 20 while at the same time maximizing data ava ilable for EPA risk characterization, external 21 transparency, and public understanding. Also, EPA is soliciting comments on incentives and 22 recognition programs that could be used to support the developm ent and use of safer chemicals 23 in hydraulic fracturing. 24Page 2 of 30 [RIN 2070-AJ93] DATES: Comments must be recei ved on or before [ insert date 60 90days after date of 25 publication in the Federal Register ]. See Unit III. for meeting dates and procedures associated 26 with the meetings. 27 ADDRESSES: Submit your comments, identified by doc ket identification (ID) number EPA28 HQ-OPPT-2011-1019, by one of the following methods: 29

• Federal eRulemaking Portal : http://www.regulations.gov . Follow the online instructions 30 for submitting comments. 31

• Mail : Document Control Office (7407M), Offi ce of Pollution Prevention and Toxics 32 (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 33 20460-0001. 34

• Hand Delivery : To make special arrangements for hand delivery or delivery of boxed 35 information, please follow the instructions at http://www.epa.gov/dockets/contacts. htm html

. 36 Additional instructions on commenting or visiting the docket, along with more 37 information about dockets ge nerally, is available at http://www.epa.gov/dockets

. 38 FOR FURTHER INFORMATION CONTACT: 39 Technical For technicalinformation contact : Mark Seltzer, Chemical Control Division (7405M), 40 Office of Pollution Prevention and Toxics , Environmental Protection Agency, 1200 41 Pennsylvania Ave., NW., Washingt on, DC 20460-0001; telephone number: ( 202

- ) 564-2901; 42 email address: seltzer.mark@epa.gov

. 43 General For generalinformation contact : The TSCA-Hotline, ABVI-Goodwill, 422 44 South Clinton Ave., Rochester, NY 14620; tele phone number: (202) 554-1404; email address: 45 TSCA-Hotline@epa.gov

. 46 Public meeting coordinator: Mark Seltzer; te lephone number: 202-564-2901; email 47 address: seltzer.mark@epa.gov

. 48Page 3 of 30 [RIN 2070-AJ93] SUPPLEMENTARY INFORMATION: 49 I. General Information 50 A. Does this Action Apply to Me? 51 This action is directed to the public in genera l. This action, however, may be of interest to 52 you if you manufacture (including import), process, or distribut e chemical substances or 53 mixtures (Ref. 1) used in any type or me thod of hydraulic fracturing. This may include 54 businesses that falls fall under North American Industry Cla ssification System (NAICS) codes 55 2111 ( Oil oil and Gas Extraction gas extraction ) and/or 2131 ( Support Activities support activities 56 for Mining mining ). EPA anticipates that this ANPR may also be of interest to states, tribes, and 57 other industries. Since other additional entities may also be interested, the agency Agency has not 58 attempted to describe all the specific entities that may be interested in this action. 59 B. What Should I Consider as I Prepare My Comments for EPA? 60 1. Submitting confidential business information (CBI) . Do not submit this information to 61 EPA through regulations.gov or email. Clearly mark the part or all of the information that you 62 claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the 63 outside of the disk or CD-ROM as CBI and then identify electronically wi thin the disk or CD64 ROM the specific information that is claimed as CBI. In addition to one complete version of the 65 comment that includes information claimed as CBI , a copy of the comment that does not contain 66 the information claimed as CBI must be submitted for inclusion in the public docket. Information 67 so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 68 2. Tips for preparing your comments . When submitting comments, remember to: 69 i. Identify the document by docket ID number and other identifying information (subject 70 heading, Federal Register date and page number). 71 ii. Follow directions. The agency Agency may ask you to respond to specific questions or 72Page 4 of 30 [RIN 2070-AJ93] organize comments by referencing a Code of Federal Regulations (CFR) part or section number. 73 iii. Explain why you agree or disagree; suggest alternatives and substitute language for 74 your requested changes. 75 iv. Describe any assumptions and provide a ny technical information and/or data that you 76 used. 77 v. If you estimate potential costs or burdens, explain how you arrived at your estimate in 78 sufficient detail to allow for it to be repr oduced. Likewise, if you es timate the universe of 79 affected reporters, explain how you arrived at your estimate in sufficient detail to allow for it to 80 be reproduced. 81 vi. Provide specific examples to illustrate your concerns and suggest alternatives. 82 vii. Explain your views as cl early as possible, avoiding the use of profanity or personal 83 threats. 84 viii. Make sure to submit your comments by the comment period deadline identified. 85 II. Background 86 EPA received a petition from Earthjustice and 114 other groups on August 4, 2011, 87 requesting that EPA issue TSCA section 4 and TSCA section 8 rules requiri ng toxicity testing of 88 chemicals and mixtures used in oi l and gas exploration and production , ; reporting of to EPA , 89 among other things, to EPA the identity of those chemicals and mixtures , ; and submitting to EPA 90 health and safety studies on the chemicals a nd mixtures (Ref. 2). On November 2, 2011, EPA 91 provided an initial response to the petition (Ref. 3). In that response, EPA denied the TSCA 92 section 4 request for issuance of a test rule because the petition did not set forth sufficient facts to 93 conclude that it was “necessary to issue” the requested TSCA section 4 rule, as required by 94 TSCA section 21(b)(1). On November 23, 2011, EPA granted in part and denied in part the 95 TSCA section 8(a) and section 8(d) requests by limiting the scope from chemicals and mixtures 96Page 5 of 30 [RIN 2070-AJ93] used in all processes of oil a nd gas exploration and production to chemical substances and 97 mixtures used in hydrau lic fracturing (Refs. 4 , and 5). EPA published a notice documentwith the 98 agency’s Agency’s rationale for its respons e to the petition in the Federal Register (78 FR 99 41768, of July 11, 2013 ) (FRL 9339–4 (Ref. 5 ). To facilitate public comment, the agency Agency 100 stated its intent to publish an ANPR to identify key issues for further discussion and analysis. 101 EPA maintains continuing coordination with it s Federal partners in planning information 102 reporting rules that will complement the Bu reau of Land Management’s (BLM) proposed 103 regulation: Oil and Gas; Hydraulic Fracturi ng on Federal and Indian Lands (78 FR 31636, May 104 24, 2013). A BLM subsequently issued asupplemental proposal and extension of comment 105 period published in the Federal Registerof for that proposed rule (78 FR 34611, June 10, 2013 106 (78 FR 34611 ). The intent of these dialogues is to ensure both EPA EPA’s and BLM’s efforts 107 provide useful information for assessment and disclosure purposes, while not overly burdening 108 reporting entities. 109 A. What Action is the Agency Taking? 110 With this ANPR, EPA is initiating a stak eholder process to request input on various 111 aspects of obtaining information on chemical substances and mixtures used in hydraulic 112 fracturing , including for oil and gas exploration and produc tion to further the purposes of TSCA 113 (TSCA section 2 sets forth the findings, policy, and intent of Congress in enacting TSCA) and 114 other federal government objectives that can be informed through this process. As part of this 115 effort, EPA seeks input on appropriate di sclosure to ensure transparency of that information 116 about the chemicals and mixtures used in hydraulic fr acturing activities

. is provided to the public 117 in a transparent fashion. These activities include the injection of water, chemicals, proppant, 118 and/or tracers to prepare geol ogic formations for hydraulic fr acturing, complete a hydraulic 119 fracturing stimulation stage, evaluate the extent of resulting fractures, or en sure future ability to 120Page 6 of 30 [RIN 2070-AJ93] continue enhancement of production through s timulation by hydraulic fracturing. During each 121 hydraulic fracturing stimulation stage, pressurized fluids containing carrier fluids such as water 122 or gas and any combination of proppant and chemi cals are injected into we lls to fracture portions 123 of the formation surrounding a se lected well section. As discusse d in more detail in Unit IV., 124 EPA is requesting comment on the information th at should be obtained or disclosed and the 125 mechanism for obtaining or disclosing this information of aboutchemicals and mixtures used in 126 hydraulic fracturing. This mechanism could be regulatory (under TSCA section 8(a) and/or 127 section 8(d)), voluntary , (e.g., under the Pollution Preventi on Act (PPA) (42 U.S.C. 13101 et 128 seq. )), or a combination of both. EPA is also seeking comment on best management practices for 129 the generation, collection, reporti ng and/or disclosure of public health and environmental 130 information from or by companies that manufactur e, process, or use chemical substances or 131 mixtures in hydraulic fracturing activities —that is, practices or operations that can be 132 implemented and verified toward achieving prot ection of public health and the environment— 133 and whether voluntary third-party certification, and incentives for di sclosure could be valuable 134 tools for improving chemical safety. In addition, the agency Agency is seeking comment on ways 135 to minimize reporting burdens and costs, avoid dup lication of efforts, and maximize transparency 136 and public understanding. Finally, EPA is solic iting comments on incentives and recognition 137 programs that could be used to support the deve lopment and use of safer chemicals in hydraulic 138 fracturing. 139 In addition to inviting written public comment s, EPA has scheduled a webinar and public 140 meeting for presenting oral comments, and may schedule additional meetings and/or webinars. 141 Specific information regarding the dates and ti mes of the webinar and public meeting(s) is 142 included in Unit III. 143 B. What is the Agency's Authority for this Action? 144Page 7 of 30 [RIN 2070-AJ93] TSCA section 8(a) (15 USC U.S.C. 2607(a)) authorizes EPA to promulgate rules under 145 which manufacturers (including impo rters) and processors of chemical substances must maintain 146 such records and submitsuch information as the EPA Admini strator may reasonably require. 147 TSCA section 8(a) also authorizes EPA to promulgate rules under which manufacturers and 148 processors of mixtures must maintain such records and submit such information to the extent the 149 EPA Administrator determines the maintenance of records or submission of reports, or both, is 150 necessary for the effective enforcement of TSCA . TSCA section 8(a) generally excludes small 151 manufacturers and processors of chemical substances or mixtures from the reporting 152 requirements . (See (see 15 U.S.C. § 2507(a ). )). This general exclusion has been codified at 40 153 CFR sections 704.5 and 712.25 ).

. However, EPA is authorized by TSCA section 8(a)(3)(A)(ii) to 154 require TSCA section 8(a) report ing from small manufacturers a nd processors with respect to 155 any chemical substance or mixture that is the subject of a rule proposed or promulgated under 156 TSCA section 4, 5(b)(4), or 6, or that is the s ubject of an order in e ffect under TSCA section 157 5(e), or that is the subject of relief granted pursuant to a civil action under TSCA section 5 or 7. 158 TSCA section 8(a) also notes that, to the extentfeasible, the EPA Administrator must not require 159 reporting under TSCA section 8(a)(1) th at is unnecessary or duplicative. 160 TSCA section 8(d) (15 USC U.S.C. 2607(d)) authorizes EPA to require the submission of 161 lists of health and safety studi es conducted or initiated by or for, or known to or reasonably 162 ascertainable by manufacturers, processors, and distributors of (and any person who proposes to 163 manufacture, process, or dist ribute) any chemical substance or mixture. Certain types or 164 categories of studies may be excluded “if the Admini strator finds that submission of lists of such 165 studies are unnecessary to carry out the purposes of [TSCA ].” See ]” (see TSCA section 166 8(d)(1 ). )). TSCA section 8(d) also authorizes EPA to require the submission of copies of studies 167 on these lists or copies of studies that ar e otherwise known by the person submitting the list. 168Page 8 of 30 [RIN 2070-AJ93] The Pollution Prevention Act (PPA) (42 U.S.C. 13101 et seq. ) makes pollution 169 prevention the national policy of the United St ates. The PPA identifies an environmental 170 management hierarchy in which pollution " “ should be prevented or re duced whenever feasible; 171 pollution that cannot be prevented should be re cycled in an environm entally safe manner, 172 whenever feasible; pollution that cannot be prevented or recycl ed should be treated in an 173 environmentally safe manner whenever feasible; and disposal or release into the environment 174 should be employed only as a last resort * * *" (42 U.S.C. 13103). ...” (42 U.S.C. 13103). 175 Among other requirements, the PPA directs EPA to develop improved me thods of coordinating, 176 streamlining and assuring public access to data collected under Federal environmental statutes; 177 facilitate the adoption of sour ce-reduction techniques by busine sses; and establish an annual 178 awards program to recognize a company or comp anies that operate out standing or innovative 179 source reduction programs. 180 III. III. Public Participation 181 With this document, EPA is requesting certain information related to chemical substances 182 and mixtures used in hydraulic fracturing and announcing its plans to involve stakeholders in 183 gathering information to help the agency in determining what information on chemical 184 substances and mixtures should be reported to EPA. EPA is also requesting stakeholder input on 185 the contours of the mechanism fo r such reporting to the agency or third-party certifiers and 186 public disclosure; including the extent it could or should rely on voluntary approaches apart from 187 or in conjunction with a regulatory mechanism established under TSCA s ection 8(a) and section 188 8(d). This document contains specific questi ons and requests for co mment in Unit IV. EPA 189 intends to involve stakeholders through one or more webinars and a public meeting. EPA has 190 scheduled a public meeting in Washington, DC a nd may add other locatio ns. Stakeholders are 191 encouraged to respond to these requests and pr ovide comment on any other matters pertaining to 192Page 9 of 30 [RIN 2070-AJ93] the content of this document. 193 A. Webinar Date and Time 194 A webinar has been scheduled for Month xx, 2014, from x a.m. to x p.m Eastern 195 Standard Time. Further information on computer system requirements, and how to register and 196 access the webinar can be f ound at the following website: 197 http://www.epa.gov/hydrau licfracture/#outreach

. 198 B. Meeting Date and Location 199 A public meeting has been scheduled for Month xx, 2014, from x a.m. to x p.m in 200 Washington, DC. The meeting will be held at the Environmental Protection Agency, William 201 Jefferson Clinton East, Room 1153, 1201 Consti tution Ave., Washington, DC 20460. If EPA 202 determines there is sufficient public interest, ad ditional meeting locations and additional dates 203 may be added. For updates on additional meetings a nd meeting logistics, please see the web site: 204 http://www.epa.gov/hydrau licfracture/#outreach and related Federal Register notices. 205 C. Meeting Procedures 206 The meeting(s) will be open to the public. To ensure that all intere sted parties have an 207 opportunity to comment in the allo tted time, oral presentations or statements will be limited to 5 208 minutes. EPA therefore recommends that stakeholders who present oral comments also submit 209 written comments following the instructions provided under ADDRESSES

. 210 Stakeholders interested in attending a meeti ng are invited to pre-regi ster at the following 211 website: http://www.epa.gov/hydraulicfracture/#outreach at least 3 days prior to the meeting. 212 Pre-registering will allow EPA to improve meeti ng planning. Registered attendees requesting to 213 make an oral presentation will be placed on the commenting schedule and receive a time slot in 214 which to give comments. Time slots are limited and will be filled on a first-come, first-served 215 basis. 216Page 10 of 30 [RIN 2070-AJ93] Special Accommodations: Any person needing special accommodation at a public 217 meeting, including wheelchair access or sign lang uage translator, shoul d contact the public 218 meeting coordinator listed under FOR FURTHER INFORMATION CONTACT . Requests for 219 special accommodations should be made at least 5 days prior to the meeting, in order to give 220 EPA sufficient time to process your request. 221 Overview of Information Collection Authorit y under Sections 8(a) and 8(d) of TSCA 222 A. TSCA Section 8(a) 223 TSCA section 8(a) gives EPA authority to require, by rulemaking, chemical 224 manufacturers and processors to maintain reco rds and submit to EPA such reports as EPA may 225 reasonably require, including reports concerning the following, insofar as it is known to or 226 reasonably ascertainable by the person making the report: 227

 The common or trade name, the chemical identity, and the molecular structure of each 228 chemical substance or mixture for which such a report is required. 229

 The categories or proposed categories of us e of each chemical substance or mixture. 230

 The total amount of each chemical substa nce or mixture manufactured or processed, 231 reasonable estimates of the total amount to be manufactured or processed, the amount 232 manufactured or processed for each of its categ ories of use, and reasonable estimates of the 233 amount to be manufactured or processed for each of its categories of use or proposed categories 234 of use. 235

 A description of the byproducts resulting fr om the manufacture, processing, use, or 236 disposal of each chemical substance or mixture. 237

 All existing data concerning the environmen tal and health effect s of each chemical 238 substance or mixture. 239

 The number of individuals exposed, and reasonable estimates of the number who will 240Page 11 of 30 [RIN 2070-AJ93] be exposed, to each chemical substance or mi xture in their places of employment and the 241 duration of such exposure. 242

 The manner or method of disposal of each chemical substance or mixture, and any 243 subsequent changes to such manner or method. 244 B. TSCA Section 8(d) 245 TSCA section 8(d) authorizes EPA to require manufacturers, processo rs, and distributors 246 of any chemical substance or mixture and pe rsons who propose to manufacture, process, or 247 distribute in commerce any chemical substance or mixture to submit health and safety studies to 248 EPA. Examples of health and safety studies can be found in 40 CFR 716.3, and include: 249

 Epidemiological or clinical studies. 250

 Studies of occupational exposure. 251

 Health effects studies. 252

 Ecological effects studies. 253

 Assessments of environmental exposure. 254

 Environmental fate studies. 255

 Health and safety studies related to surf ace or ground water sampling and analyses that 256 are aggregated and analyzed to measure exposure. 257 IV. Request for Comment 258 EPA is requesting comment on the design and sc ope of potential regulatory or voluntary 259 approaches, or combination of both approaches , to obtain information on chemical substances 260 and mixtures used in hydraulic fracturing . EPA invites comments on all aspects of this ANPR, 261 including the description of hydraulic fracturing activities presented in Unit II.A . Comments 262 should provide enough detail and contain suffici ent supporting information in order for the 263 agency Agency to understand the issues rais ed and give them the fullest consideration. Comments 264Page 12 of 30 [RIN 2070-AJ93] should include alternatives, rationales, be nefits, technological a nd economic feasibility , 265 (including costs), and supporting data. Supporting informa tion should include any information 266 that substantiates your conc lusions and recommendations, including, but not limited to: 267 Experiences, data, analyses, stud ies and articles, and standard professional practices. If referring 268 to a particular well site as an example, please identify the company name of the well site 269 operator, well name, latitude and longitude coor dinates and American Petroleum Institute (API) 270 identification number, if available. 271 A. Overall Approach to Reporting and Disclosure of Chemical Substances and Mixtures Used in 272 Hydraulic Fracturing 273 274 In this ANPR, EPA is seeking comment on wh at information should be reported to EPA 275 (or through a CBI cleared third-party certifier) or disc losed publically (by EPA) regarding the 276 identity, quantities, types and circ umstances of uses of chemical substances and mixtures used in 277 hydraulic fracturing, as well as what types of hea lth and safety studies should be reported or 278 disclosed. EPA is seeking comment on whether and how if reported, data that are claimed to be 279 trade secrets, or CBI, could be reported to EPA (or a third-party certifie r) and then aggregated 280 and disclosed while protecting the identities of individual products and firms. EPA is also 281 requesting comment on the appropriate mix of vo luntary disclosure and/ or regulatory reporting 282 mechanisms. The specific types of information that could be reported or disclosed are discussed 283 in Units IV.C. and IV.G. ( It should be noted that TSCA s ection 8(e) requires manufacturers, 284 importers, processors , and distributors to provide EPA with information on any of their chemical 285 substances or mixtures that reasonably supports the conclusion that such substance or mixture 286 presents a substantial risk of injury to health or the environment .).

. 287 EPA is requesting comment on the following questions: 288 1. Should all information be required to be reported or should th ere be a voluntary 289 mechanism for some or all information? 290Page 13 of 30 [RIN 2070-AJ93] 2. Would a combination of mandatory reporting an d voluntary disclosure be effective? If 291 so, what would that combination consist of? Why? 292 3. What types of information, if any, should be required to be reported? Why? 293 4. How could any required repor ting activities be designe d to better facilitate 294 compliance? 295 5. What types of information, if any, should be reported and/or di sclosed voluntarily? 296 Why? 297 6. What are the best management practices for the generation, collection, reporting 298 and/or disclosure of informa tion from or by companies? 299 7. Are there particular systems in place th at already use these best management 300 practices? Please identify these systems. 301 8. To what extent are these best managementpractices widely a dopted? Please provide 302 evidence regarding the extent of us e of best management practices. 303 9. How could incentives be structured to en sure effective voluntary disclosure of 304 information on chemical substances and mixtures used in hydraulic fracturing? 305 10. Are there incentives that could be used in combination with regulatory requirements 306 for information disclosure to promote practices that go beyond compliance (e.g., incentives that 307 encourage reporting in addition to that required by regulation)? 308 11. What information collection tools and res ources are available to support and promote 309 safer chemical use and other sustainable practices (e.g., some form of cradle-to-grave chemical 310 management)? Please explain. 311 12. Should there What factors shouldbe different incentives consideredfor distinguishing 312 among different types of companies ? for the purpose of incentives? 313 13. What information collection tools a nd resources are available to supportand , 314Page 14 of 30 [RIN 2070-AJ93] incentivize practices that , and promote safe and sustainabl e practices? Please explain. 315 14. How could collected information be used to better inform chemical safety? safe and 316 sustainable practices? For example, would providing information or guidance on improved 317 chemical use across different types of firms involved in hydraulic fracturing better inform 318 chemical safety? safe and sustainable practices? 319 15. What mechanisms could be developed to make information that is reported to EPA 320 publically disclosed and available? 321 16. How could information reported and/or disc losed under any such mechanism be used 322 to better inform research and development of chemical substances and mixtures used in 323 hydraulic fracturing? 324 B. Who Should Report or Disclose Information on Chemical Substances and Mixtures Used in 325 Hydraulic Fracturing? 326 327 TSCA section 8(a) gives EPA authority to require, by rulemaking, chemical 328 manufacturers and processors to maintain reco rds and submit to EPA reports about chemical 329 substances and mixtures, as we ll as environmental and health data on those substances and 330 mixtures. The hydraulic fracturing in dustry includes a variety of co mpanies that could be subject 331 to reporting under TSCA section 8(a). These comp anies could include ch emical manufacturers, 332 chemical suppliers who engage in processing, service providers mixing chemicals on site to 333 create the hydraulic fracturing fluids, and se rvice providers responsib le for injecting the 334 hydraulic fracturing fluid into th e well to fracture the formation. EPA is requesting comment on 335 whether, in the context of a pot ential reporting and/or disclosure program, all or any companies 336 should be required to report or whether a spec ific type or types of company (e.g., chemical 337 supplier) should be required to report and other types (e.g., serv ice provider) be encouraged to 338 report voluntarily. 339 1. If any companies are required to report , should different types of companies be 340Page 15 of 30 [RIN 2070-AJ93] required to report different da ta elements? Please explain. 341 2. Should manufacturers (including importers), pro cessors, or both be required to report 342 under TSCA section 8(a)? Why or why not? 343 3. Are there additional North American Industry Classification System ( NAICS ) codes 344 in addition to 2111 ( Oil oil and Gas Extraction gas extraction ) and 2131 ( Support 345 Activities support activities for Mining mining ) that would need to be included in order to cover 346 chemical manufacturers (including importers) and processors in a potential reporting and/or 347 disclosure program? 348 4. In what ways do the responsib ilities of manufacturers and processors (Ref. 6) overlap? 349 What activities associated with hydraulic fracturing are carried out by the well operator at the 350 well site? EPA understands that service providers or well operat ors often process chemicals at 351 the drilling site. 352 5. Would manufacturers (includi ng importers), service provid ers, well operators, or all 353 three, know how a chemical substance or mixture is used at well sites? If all types of firms have 354 this information, which type, if any, s hould be required to report? If neither well operators, nor 355 service providers, nor well operators, nor manufacturers (including anyone who imports 356 chemicals or otherwise undertakes activities that meet the definition of “manufacture” at 40 CFR 357 704.3) know how a chemical is used at well si tes, who would know and how might that use 358 information be obtained? 359 6. If voluntary mechanisms are used for obt aining information, what mechanisms (e.g., 360 incentive programs) should EPA consider in or der to encourage consistent reporting and/or 361 disclosure from different types of companies? Would some mechanisms be more effective for 362 one type of company than another? 363 7. Should there be different incentives for different types of companies ? (e.g., 364Page 16 of 30 [RIN 2070-AJ93] manufacturers vs. processors)? 365 8. What information collection tools and res ources are available to support and promote 366 safe and sustainable prac tices? Please explain. 367 C. Scope of Reporting or Disclosure of Inform ation on Chemical Substances and Mixtures Used 368 in Hydraulic Fracturing 369 370 In this ANPR, EPA is seeking comment on th e information that s hould be reported or 371 disclosed regarding chemical substances and mixtures used in hydraulic fracturing. EPA is 372 exploring various voluntary regulatory approaches, regulatory voluntary approaches or a 373 combination of both for obtaining this information. 374 As described in Unit III.A., TSCA section 8(a) gives EPA authority to require, by 375 rulemaking, chemical manufacturers and processors to maintain records and submit to EPA such 376 reports as EPA may reasonably require. TSCA section 8(a) gives EP A authority to require, by 377 rulemaking, chemical manufacturers and processors to maintain records and submit to EPA such 378 reports as EPA may reasonably re quire, including reports concer ning the following, insofar as it 379 is known to or reasonably ascertain able by the person making the report: 380

 The common or trade name, the chemical identity, and the molecular structure of each 381 chemical substance or mixture for which such a report is required. 382

 The categories or proposed categories of us e of each chemical substance or mixture. 383

 The total amount of each chemical substa nce or mixture manufactured or processed, 384 reasonable estimates of the total amount to be manufactured or processed, the amount 385 manufactured or processed for each of its categ ories of use, and reasonable estimates of the 386 amount to be manufactured or processed for each of its categories of use or proposed categories 387 of use. 388

 A description of the byproducts resulting fr om the manufacture, processing, use, or 389 disposal of each chemical substance or mixture. 390Page 17 of 30 [RIN 2070-AJ93]  All existing data concerning the environmen tal and health effect s of each chemical 391 substance or mixture. 392

 The number of individuals exposed, and reasonable estimates of the number who will 393 be exposed, to each chemical substance or mi xture in their places of employment and the 394 duration of such exposure. 395

 The manner or method of disposal of each chemical substance or mixture, and any 396 subsequent changes to such manner or method. 397 EPA expects that data obtained could be a ggregated to provide a national list of the 398 chemical substances and mixtures used in hydraulic fracturing, providing the agency Agency with 399 the ability to determine which chemicals are usedmost frequently. For ch emicals that have not 400 been previously well-characterized in terms of their chemi cal, physical, and toxicological 401 properties, EPA may conduct research to better understand these properties in order to perform a 402 basic risk characterization. Information that co uld be required from ma nufacturers (including 403 importers) and processors under a potent ial reporting progra m could include: 404 1. Basic company information (i.e., company name, mailing address, website , and 405 technical contact information). 406 2. Steps involved in processing chemicals or mixtures on site before injection. Typical 407 composition and performance standard of hydraulic fracturing fluid as an end use product, before 408 injection. 409 3. Steps involved in processi ng chemicals or mixtures for reuse, recycling, and/or 410 reprocessing in the hydraulic fracturing operation. 411 4. Hydraulic fracturing fluid composition: 412 i. Common name or trade name of each chem ical product in the hydr aulic fracturing fluid 413 and a description of each product’s function. 414Page 18 of 30 [RIN 2070-AJ93] ii. Chemical identity (chemical name and Ch emical Abstracts Service Registry Number) 415 of each chemical substance in each product. 416 iii. Total volume of the carrier fluid and percentage of the carrier fluid that makes up the 417 total hydraulic fracturing fluid (e.g., water volume and percentage of water in the hydraulic 418 fracturing fluid). 419 iv. Actual amount of each chemical substan ce or product in the hydraulic fracturing fluid 420 in order to understand the lo ading (e.g., mass or volume). 421 5. Production type (i.e., gas and/or oil). 422 6. Frequency of use of the chemical substa nce or mixture for hydraulic fracturing (e.g., 423 number of times or per fractur e stage or number of wells). 424 7. Number of workers exposed or likely to be exposed to the chemical substance or 425 mixture. 426 8. All existing data concerning the human a nd environmental hea lth effects of the 427 chemical substance or mixture. 428 9. Some chemical substances and mixtures us ed in hydraulic fracturing may react to 429 create other chemical substances and mixtures as products within an on-site mixing apparatus or 430 in the well that is being fractured. EPA is requesting comments on which reporting elements 431 should be included: 432 i. If EPA were to require reporting, how should EPA address chemical substances and 433 mixtures which are formed on site? Why? 434 ii. Is there other information obtainable under TSCA section 8(a) that should be included 435 in a proposed TSCA section 8(a) rule? What are the chemical safety benefits (e.g., potential 436 reduction of risk to human health and environmen t) of obtaining this information? Explain. 437 iii. Should EPA consider including repor ting on any combination of water and/or 438Page 19 of 30 [RIN 2070-AJ93] chemicals introduced or intended to be introduced into an oil or gas well for the purpose of 439 maintaining or improving the func tion and productivity of the well , including recovery methods, 440 (e.g

. ., acid treatments, corrosion inhi bitors, scale reducers, biocides )? Why or why not? EPA is 441 interested in information regarding the frequency, durat ion, concentration , and volume of use of 442 such chemicals or chemical mixtures to enhance the agency’s Agency’s understanding of well 443 maintenance practices, in order to evalua te the need for additional disclosure. 444 10. While EPA could require manufacturers and processors to report this information, 445 the agency Agency could also encourage companies engaged in hydraulic fracturing to 446 voluntarily disclose it. EPA is requesting comments on reporting elements which should be 447 included: 448 i. Which elements (as discussed earlier in Unit IV.C.), if any, may benefit from being 449 proposed as part of a TSCA sec tion 8(a) rule? Which elements, if any, may benefit better from 450 being reported and/or disclose d under a voluntary program? 451 ii. Are there data elements (from those di scussed earlier in Unit IV.C.) for which a 452 hybridized reporting and/or disclosure system (e.g., some regulatory elements, some voluntary 453 elements) would be more efficient or beneficial? 454 D. Use of Third-Parties

. 455 EPA is requesting comments on the use of thir d-parties for the collection of information 456 on chemical substances used in hydraulic fracturing and/or to certify the us e of best practices. 457 1. Should EPA consider implementing third-party certification (fo r certifying reporting, 458 practices and other aspects) an d/or third-party collection of information about hydraulic 459 fracturing operations in addition to or in lieu of a mandatory reporting or voluntary disclosure 460 program? 461 2. What would such a certification program look like? 462Page 20 of 30 [RIN 2070-AJ93] 3. Are there existing programs that already certi fy best practices? Are they effective? 463 Are they independent? Could they be improved? How? 464 4. What should be considered (e.g. standards fo r third-parties, standards for collecting 465 chemical information , costs ) in implementing a third-party program? 466 5. How should chemical information be manage d by third-parties? Are there specific 467 roles that third-parties should have in data management? Please explain. 468 6. How should a third-party certifi er be funded? How could pe rceived or actual bias be 469 minimized? 470 E. Reporting Threshold and Freque ncy of Reporting or Disclosure 471 EPA is interested in comments regarding the th reshold for the size of entities that should 472 be required or encouraged to repo rt or disclose information on ch emical substances and mixtures 473 used in hydraulic fracturing and environmental and health data on those s ubstances and mixtures. 474 EPA is also interested in comments regarding how often reporting or disclosure should take 475 place: 476 1. Are there thresholds that might be appropriate to limit reporting by small 477 manufacturers or processors under either a regul atory or a voluntary program (e.g., the thresholds 478 that define “small ma nufacturer” in 40 CFR sections 704.3 and 712.25)? Why? If available, how 479 would the recommended reporting threshold affe ct cost to the reporting entity? How might 480 different reporting thresholds affect the usefulness of the data provided? 481 2. Given possible changes in the composition of hydraulic fracturing fl uids over time and 482 changes in ownership of a well, how often and wh en should an entity report information to EPA 483 or publicly disclose it? 484 3. What would be the effect of changes in th e frequency of reporting and/or disclosure 485 on the overall cost of reporting or disclosure? What would be the effect of changes in level of 486Page 21 of 30 [RIN 2070-AJ93] aggregation or other aspects of reporting and/or disclosure? 487 F. Data Collection Efficiency 488 EPA believes that any mechanism for reporti ng and/or disclosure of information on 489 chemical substances and mixtures should be stru ctured in a manner that minimizes the potential 490 for duplication and overlap. 491 1. EPA requests comment on how best to minimize duplicative reporting and/or 492 disclosure requirements, particul arly for companies that may al so report to the BLM, state 493 agencies, and to other parties. For example, should EPA limit its data collection to items not 494 collected by other parties? How much overlap is acceptable? 495 2. How can the agency Agency achieve the goal of efficient data collection while also 496 maximizing transparency and public understanding? 497 3. In order to encourage transparency a nd information sharing while minimizing 498 duplication, what information co llection repository or database should EPA use? Should EPA 499 develop a repository or use an existing one such as FracFocus (Ref. 7) or http://www. data.gov ? If 500 an existing repository is recommended, indicate which repository and why. Are any changes or 501 enhancements recommended to this existing repository? 502 4. EPA believes that any TSCA reporting re quirements should complement existing 503 reporting programs and data sources , such as state databases and web sites websites like 504 FracFocus in order to avoid duplica tion. How could this be achieved? 505 G. Health and Safety Studies of Chemicals and Mixtures used Used in Hydraulic Fracturing 506 EPA is seeking comment on potential options for reporting or disclosure of health and 507 safety studies for chemical substances a nd mixtures used in hydraulic fracturing. 508 As described in Unit III.B., TSCA section 8(d) authorizes EPA to re quire manufacturers, 509 processors, and distributors of any chemical substance or mixture and persons who propose to 510Page 22 of 30 [RIN 2070-AJ93] manufacture, process, or dist ribute in commerce any chemical substance or mixture to submit 511 health and safety studies to EPA. TSCA section 8(d) authorizes EPA to require manufacturers, 512 processors, and distributors of any chemical substance or mixture and persons who propose to 513 manufacture, process, or dist ribute in commerce any chemical substance or mixture to submit 514 health and safety studies to EPA. Examples of health and safety studies are: 515

 Epidemiological or clinical studies. 516

 Studies of occupational exposure. 517

 Health effects studies. 518

 Ecological effects studies. 519

 Assessments of environmental exposure. 520

 Environmental fate studies. 521

 Health and safety studies related to surface or ground water sampling and analyses 522 when aggregated and analyzed to measure exposure. 523

 Additional examples can be found in 40 CFR 716.3. 524 One mechanism for the collection of thes e studies is TSCA section 8(d). Other 525 mechanisms could include voluntary approaches . EPA is requesting comment on the types of 526 companies that would report or disclose healthand safety studies. EPA also is requesting 527 comment on whether companies should be required to report studies or be encouraged to disclose 528 studies, or whether a combinati on of regulatory and voluntary approaches should be used to 529 obtain health and safety studies. 530 1. Should all manufacturers (including importers ), processors, and distributors provide 531 lists or copies of health and safety studies or should reporting only be requ ired of some types of 532 companies? Why or why not? 533 2. Are there existing mechanisms in place, including non-regulatory mechanisms, for 534Page 23 of 30 [RIN 2070-AJ93] EPA to obtain these studies? If not, what woul d be an effective regulatory approach and/or 535 voluntary mechanism for EPA to obtain these studies? 536 3. Is there an approach that more effectiv ely encourages further health and safety 537 studies? 538 4. Some chemical substances and mixtures used in hydraulic fractu ring are more studied 539 than others. Some are considered to be well- characterized in terms of hazard and exposure 540 information. If EPA were to require reporting, should EPA limit reportin g requirements to the 541 chemical substances and mixtures that EP A believes are not well-characterized? Why? 542 5. If a TSCA section 8(d) rule were promul gated, should it require reporting of studies 543 for all chemical substances and mixtures used in hydraulic fracturing or only a subset? Why? If 544 only certain chemicals should be included in the rule, which ones should EPA include? 545 6. Are there particular types of studies that should be required to be submitted or should 546 all health and safety studies be required to be submitted? Why? 547 7. Are there studies that are of greater inte rest if they are conducted by a particular 548 entity, e.g., service providers? Fo r example, an assessment of environmental exposure may be 549 viewed as more important because of the e nvironment that is the focus of the study. 550 8. Would it be more efficient (timely and costeffective) to submit health and safety 551 studies to a third-party? W hy or why not? If so, why and what type of third-party? 552 I H . Safer Chemicals and Transparency 553 Incentives and recognition programs could be us ed to support the development and use of 554 safer chemicals (both those created deliberately and inadvertently) in hydraulic fracturing. Safer 555 chemicals are generally less toxic to human health and the envir onment, and are less persistent 556 and bioaccumulative than their alternatives. Under an EPA-sponsored voluntary initiative, EPA 557 could provide resources and recognition for companies committed to promoting and using safe 558Page 24 of 30 [RIN 2070-AJ93] and sustainable practices. Such a voluntary pr ogram could help companies meet corporate 559 sustainability goals by providing the means to, and an objective measure of, environmental 560 stewardship. Information that could be collect ed or disclosed under such a voluntary program 561 could be used to verify a company’s eligibility for award or recognition in relation to identified 562 measures and goals. 563 There are a range of EPA existing programs that support less toxic chemical usage and 564 management encourage the development of safer chemicals (e.g., the Green Chemistry program 565 and the Sustainable Futures program) or th e use of safer substitutes (e.g., Design for the 566 Environment) which may serve as models for applic ation to hydraulic fracturing. A similar 567 program focusing on chemicals used in hydrau lic fracturing could speed adoption by well 568 owners, operators and suppliers of safer chemi cals. The program could also increase public 569 understanding about chemical choice and use in hydraulic fracturing. 570 EPA would like to determine whether these pr ograms could be used as possible models 571 for consideration of chemicals and mixtures us ed in hydraulic fracturi ng and whether there are 572 other programs that would be more effective. In order to determine whether replacement 573 chemicals are safer, it would be important to ta ke into account the effectiveness and potential 574 associated risks with the alte rnative chemical. EPA requests comment on strategies for creating 575 incentives and voluntary approaches for the development and use of safer chemicals. 576 1. Are there other TSCA sections th at could also further support the use and 577 development of safer chemicals more effectively? 578 2. What programs are appropriate to encourage the use of safer chemicals already on the 579 market? 580 3. For this industry, are exis ting programs that encourag e the development of safer 581 chemicals appropriate? Could EP A change those programs to make them more effective in 582Page 25 of 30 [RIN 2070-AJ93] inducing well operators to use safer chemicals? How? 583 V. References 584 The following is a list of the materials that ar e specifically referenced in this document. 585 The docket identified under ADDRESSES includes these references and other information 586 considered by EPA. For assistance, please consult th e technical person listed under FOR 587 FURTHER INFORMATION CONTACT

. 588 1. Toxic Substances Control Act, Section 3 (15 U.S.C. 2602). 589 2. Earthjustice and 114 other organizations. Lette r from Deborah Goldberg, Earthjustice 590 to Wendy Cleland-Hamnett, Director, Office of Pollution Prevention and Toxics. Re: Citizen 591 Petition Under Toxic Substances Control Act Regarding the Chemi cal Substances and Mixtures 592 Used in Oil and Gas Exploration or Pr oduction. August 4, 2011. Available on-line at: 593 http://www.epa.gov/oppt/chemtes t/pubs/Section_21_Petition _on_Oil_Gas_Drilling_and_Frackin 594 g_Chemicals8.4.2011.pdf

. 595 3. EPA. Letter from EPA Assistant Ad ministrator Steven A. Owens to Deborah 596 Goldberg, Earthjustice, Re: TS CA Section 21 Petition Concerni ng Chemical Substances and 597 Mixtures Used in Oil and Gas Exploration or Production. November 2, 2011. Available on-line 598

at: http://www.epa.gov/oppt/chemtest/pubs /SO.Earthjustice.Response.11.2.pdf

. 599 4. EPA. Letter from EPA Assistant Ad ministrator Steven A. Owens to Deborah 600 Goldberg, Earthjustice, Re: TS CA Section 21 Petition Concerni ng Chemical Substances and 601 Mixtures Used in Oil and Gas Exploration or Production. November 23, 2011. Available on-line 602

at: http://www.epa.gov/oppt/chemtest/pubs/EPA_Le tter_to_Earthjustic e_on_TSCA_Petition.pdf. 603 5. EPA. Chemical Substances and Mixtures Used in Oil and Gas Exploration or 604 Production; TSCA Section 21 Petition Reasons for Agency Response. Federal Register (78 FR 605 41768, July 11, 2013) (FRL-9339-4). 606Page 26 of 30 [RIN 2070-AJ93] 5. 6. TSCA Statutory Definitions Document. February 11, 2014. 607 6. 7. FracFocus Chemical Disclosure Registry. Available on-line at: 608 http://www.fracfocus.org. 609 VI. Statutory and Executive Order Reviews 610 Under Executive Orders 12866, entitled ‘‘R egulatory Planning and Review’’ (58 FR 611 51735, October 4, 1993) and 13563, entitled ‘‘Improvi ng Regulation and Regulatory Review’’ 612 (76 FR 3821, January 21, 2011), this is a “significa nt regulatory action” because it raises novel 613 legal and/or policy issues. Accordingly, EPA subm itted this action to the Office of Management 614 and Budget (OMB) for review unde r these Executive Orders and any changes made in response 615 to OMB recommendations have been documen ted in the docket for this action. 616 Because this document does not impose or propose any requirements, and instead seeks 617 comments and suggestions for the agency Agency to consider in possibly developing a 618 subsequent proposed rule, the various other review requirements that apply when an agency 619 imposes requirements do not apply to this action. Nevertheless, as part of your comments on this 620 ANPR, you may include any comments orinformation that could help the agency Agency to 621 assess the potential impact of a subsequent re gulatory action on small entities pursuant to the 622 Regulatory Flexibility Act (5 U.S.C. 601 et seq. ); to consider voluntary consensus standards 623 pursuant to section 12(d ) of the National Technol ogy Transfer and Advancement Act (15 U.S.C. 624 272 note); to consider environmenta l health or safety effects on children pursuant to Executive 625 Order 13045, entitled ‘‘Protection of Children from Environmenta l Health Risks and Safety 626 Risks’’ (62 FR 19885, April 23, 1997) ; to consider human health or environmental effects on 627 minority or low-income populations pursuan t to Executive Order 12898, entitled ‘‘Federal 628 Actions to Address Environmental Justice in Minority Populations and Low-Income 629 Populations’’ (59 FR 7629, February 16, 1994); or to consider potential impacts to state and 630Page 27 of 30 [RIN 2070-AJ93] local governments or tribal governments. 631 The agency Agency will consider such comments during the development of any 632 subsequent rulemaking as it takes appropriate steps to address any applicable requirements. 633Page 28 of 30 [RIN 2070-AJ93] VI. References 634 The following is a list of the materials that ar e specifically referenced in this document. 635 The docket identified under ADDRESSES includes these references and other information 636 considered by EPA. For assistance, please consult th e technical contact listed under FOR 637 FURTHER INFORMATION CONTACT

. 638 1. Toxic Substances Contro l Act, Section 3, 15 USC 2602. 639 2. Earthjustice and 114 other organizations. Le tter from Deborah Goldberg, Earthjustice 640 to Wendy Cleland-Hamnett, Director, Office of Pollution Prevention and Toxics. Re: Citizen 641 Petition Under Toxic Substances Control Act Regarding the Chemi cal Substances and Mixtures 642 Used in Oil and Gas Exploration or Pr oduction. August 4, 2011. Available on-line at: 643 http://www.epa.gov/oppt/chemtes t/pubs/Section_21_Petition _on_Oil_Gas_Drilling_and_Frackin 644 g_Chemicals8.4.2011.pdf

. 645 3. EPA. Letter from EPA Administrator Lisa P. Jackson to Deborah Goldberg, 646 Earthjustice, Re: TSCA Section 21 Petition Concerning Chemical S ubstances and Mixtures Used 647 in Oil and Gas Exploration or Produc tion. November 2, 2011. Available on-line at: 648 http://www.epa.gov/oppt/chemtest/p ubs/SO.Earthjustice.Response.11.2.pdf

. 649 4. EPA. Letter from EPA Administrator Lisa P. Jackson to Deborah Goldberg, 650 Earthjustice, Re: TSCA Section 21 Petition Concerning Chemical S ubstances and Mixtures Used 651 in Oil and Gas Exploration or Producti on. November 23, 2011. Available on-line at: 652 http://www.epa.gov/oppt/chemtest/pubs/EPA_Le tter_to_Earthjustice_on_TSCA_Petition.pdf. 653 5. EPA. Chemical Substances and Mixtures Used in Oil and Gas Exploration or 654 Production; TSCA Section 21 Petition Reasons for Agency Response. 78 FR 41768, July 11, 655 2013. 656 6. TSCA Statutory Definitions Document. February 11, 2014. 657Page 29 of 30 [RIN 2070-AJ93] 7. FracFocus Chemical Disclosure Registry. Available on-line at: 658 http://www.fracfocus.org. 659 8. EPA. TSCA New Chemicals Program. Available on-line at: 660 http://www.epa.gov/oppt/newchems/

. 661 662Page 30 of 30 [RIN 2070-AJ93] List of Subjects in 40 CFR Chapter 1 I , Subchapter R 663 Environmental protection, Chemicals, Hazardous substances, Confidential business 664 information, Exploration and production, Fracking, Hazardous substances, Hydraulic fracturing, 665 Fracking, Oil and gas, Confidential business information, Reporting and recordkeeping

. 666 667 Dated: ____________________ 668 669 670

________________________________ 671 Gina McCarthy 672 Administrator. 673