*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review *** RIN2070-AJ93_EO12866_HF-ANPR _FRDOCUMENT_2014-03-07.DOCX 

### Draft document as submitted for review under EO 12866.

[RIN 2070-AJ93] Page 1 of 25 Billing Code 6560-50-P 1 ENVIRONMENTAL PRO TECTION AGENCY 2 40 CFR Chapter 1, Subchapter R 3 EPA-HQ-OPPT-2011-1019; FRL-XXXX-X 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 is issuing this ANPR and initiating a public participation process to seek comment on the 13 information that should be repor ted or disclosed for hydraulic frac turing chemical substances and 14 mixtures and the mechanism for obtaining this in formation. This mechanism could be regulatory 15 (under TSCA section 8(a) and/or section 8(d)), voluntary or a combination of both, and could 16 include best management practi ces, third-party certification and collection and incentives for 17 disclosure of this information. In addition, the agency is seeking comment on ways of 18 minimizing reporting burdens and costs and of avoi ding the duplication of state and other federal 19 agency information collections, while at the sa me time maximizing data available for EPA risk 20 characterization, external transparency, and public understanding. Also, EPA is soliciting 21 comments on incentives and recognition programs th at could be used to support the development 22 and use of safer chemicals in hydraulic fracturing. 23*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 2 of 25 DATES: Comments must be recei ved on or before [ insert date 60 days after date of publication 24 in the Federal Register ]. See Unit III. for meeting dates a nd procedures associated with the 25 meetings. 26 ADDRESSES: Submit your comments, identified by doc ket identification (ID) number EPA27 HQ-OPPT-2011-1019, by one of the following methods: 28

• Federal eRulemaking Portal : http://www.regulations.gov . Follow the online instructions 29 for submitting comments. 30

• Mail : Document Control Office (7407M), Offi ce of Pollution Prevention and Toxics 31 (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 32 20460-0001. 33

• Hand Delivery : To make special arrangements for hand delivery or delivery of boxed 34 information, please follow the instructions at http://www.epa.gov/dockets/contacts.htm

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

. 37 FOR FURTHER INFORMATION CONTACT: 38 Technical information contact : Mark Seltzer, Chemical Control Division (7405M), 39 Office of Pollution Prevention and Toxics , Environmental Protection Agency, 1200 40 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 202-564-2901; email 41 address: seltzer.mark@epa.gov

. 42 General information contact : The TSCA-Hotline, ABVI-G oodwill, 422 South Clinton 43 Ave., Rochester, NY 14620; telephone num ber: (202) 554-1404; email address: TSCA44 Hotline@epa.gov

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

. 47*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 3 of 25 SUPPLEMENTARY INFORMATION: 48 I. General Information 49 A. Does this Action Apply to Me? 50 This action is directed to the public in genera l. This action, however, may be of interest to 51 you if you manufacture (including import), process, or distribut e chemical substances or 52 mixtures (Ref. 1) used in any type or me thod of hydraulic fracturing. This may include 53 businesses that falls under North American I ndustry Classification Sy stem (NAICS) codes 2111 54 (Oil and Gas Extraction) and/or 2131 (Support Activities for Mining) . EPA anticipates that this 55 ANPR may also be of interest to states, tribes, and othe r industries. Since ot her entities may also 56 be interested, the agency has not attempted to describe all th e specific entities that may be 57 interested in this action. 58 B. What Should I Consider as I Prepare My Comments for EPA? 59 1. Submitting confidential business information (CBI) . Do not submit this information to 60 EPA through regulations.gov or email. Clearly mark the part or all of the information that you 61 claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the 62 outside of the disk or CD-ROM as CBI and then identify electronically wi thin the disk or CD63 ROM the specific information that is claimed as CBI. In addition to one complete version of the 64 comment that includes information claimed as CBI , a copy of the comment that does not contain 65 the information claimed as CBI must be submitted for inclusion in the public docket. Information 66 so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 67 2. Tips for preparing your comments . When submitting comments, remember to: 68 i. Identify the document by docket ID number and other identifying information (subject 69 heading, Federal Register date and page number). 70 ii. Follow directions. The agency may ask you to respond to specific questions or 71*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 4 of 25 organize comments by referencing a Code of Federal Regulations (CFR) part or section number. 72 iii. Explain why you agree or disagree; suggest alternatives and substitute language for 73 your requested changes. 74 iv. Describe any assumptions and provide a ny technical information and/or data that you 75 used. 76 v. If you estimate potential costs or burdens, explain how you arrived at your estimate in 77 sufficient detail to allow for it to be repr oduced. Likewise, if you es timate the universe of 78 affected reporters, explain how you arrived at your estimate in sufficient detail to allow for it to 79 be reproduced. 80 vi. Provide specific examples to illustra te your concerns and suggest alternatives. 81 vii. Explain your views as cl early as possible, avoiding the use of profanity or personal 82 threats. 83 viii. Make sure to submit your comments by the comment period deadline identified. 84 II. Background 85 EPA received a petition from Earthjustice and 114 other groups on August 4, 2011, 86 requesting that EPA issue TSCA section 4 and TSCA section 8 rules requiri ng toxicity testing of 87 chemicals and mixtures used in oil and gas exploration and production, reporting of, among other 88 things, to EPA the identity of those chemical s and mixtures, and submitting to EPA health and 89 safety studies on the chemicals and mixtures (Ref. 2). On November 2, 2011, EPA provided an 90 initial response to the petition (Ref. 3). In that response, EP A denied the TSCA section 4 request 91 for issuance of a test rule because the petition did not set forth suffi cient facts to conclude that it 92 was “necessary to issue” the requested TSCA section 4 rule, as required by TSCA section 93 21(b)(1). On November 23, 2011, EPA granted in partand denied in part the TSCA section 8(a) 94 and section 8(d) requests limiting the scope to chemical substances and mixtures used in 95*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 5 of 25 hydraulic fracturing (Refs. 4, 5). EPA published a notice with the agency’s rationale for its 96 response to the petition in the Federal Register (78 FR 41768, July 11, 2013) (FRL 9339–4). To 97 facilitate public comment, the ag ency stated its intent to publish an ANPR to identify key issues 98 for further discussion and analysis. 99 EPA maintains continuing coordination with it s Federal partners in planning information 100 reporting rules that will complement the Bu reau of Land Management’s (BLM) proposed 101 regulation: Oil and Gas; Hydraulic Fractu ring on Federal and Indian Lands (78 FR 31636, 102 May 24, 2013). A supplemental proposal and extens ion of comment period published in the 103 Federal Register of June 10, 2013 (78 FR 34611). The inte nt of these dialogues is to ensure 104 both EPA and BLM’s efforts provide useful info rmation for assessment and disclosure purposes, 105 while not overly burdeni ng reporting entities. 106 A. What Action is the Agency Taking? 107 With this ANPR, EPA is initiating a stak eholder process to request input on various 108 aspects of obtaining information on chemical substances and mixtures used in hydraulic 109 fracturing, including input on appropri ate disclosure to ensure transp arency of chemicals used in 110 hydraulic fracturing activities. Th ese activities include the inj ection of water, chemicals, 111 proppant, and /or tracers to pr epare geologic formations for hydraulic fracturing, complete a 112 hydraulic fracturing stimulation stage, evaluate the extent of resulti ng fractures, or ensure future 113 ability to continue enhancem ent of production through stimul ation by hydraulic fracturing. 114 During each hydraulic fracturing stimulation stage, pressurized fluids cont aining carrier fluids 115 such as water or gas and any combination of pro ppant and chemicals are injected into wells to 116 fracture portions of the formation surrounding a selected well section. As discussed in more 117 detail in Unit IV., EPA is requesting comment on the information that should be obtained or 118 disclosed and the mechanism for obtaining or di sclosing this information of chemicals and 119*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 6 of 25 mixtures used in hydraulic fracturing. This m echanism could be regulatory (under TSCA section 120 8(a) and/or section 8(d)), vol untary, or a combination of both. EPA is also seeking comment on 121 best management practices for hydraulic fracturi ng—that is, practices or operations that can be 122 implemented and verified toward achieving prot ection of public health and the environment— 123 and whether voluntary third-party certification, and incentives for di sclosure could be valuable 124 tools for improving chemical safety. In additi on, the agency is seeking comment on ways to 125 minimize reporting burdens and costs, avoid duplic ation of efforts, and maximize transparency 126 and public understanding. Finally, EPA is solic iting comments on incentives and recognition 127 programs that could be used to support the deve lopment and use of safer chemicals in hydraulic 128 fracturing. 129 In addition to inviting written public comment s, EPA has scheduled a webinar and public 130 meeting for presenting oral comments, and may schedule additional meetings and/or webinars. 131 Specific information regarding the dates and ti mes of the webinar and public meeting(s) is 132 included in Unit III. 133 B. What is the Agency's Authority for this Action? 134 TSCA section 8(a) (15 USC 2607(a)) authori zes EPA to promulga te rules under which 135 manufacturers (including importers ) and processors of chemical s ubstances must maintain such 136 records and submit such information as the EP A Administrator may reasonably require. TSCA 137 section 8(a) also authorizes EP A to promulgate rules under whic h manufacturers and processors 138 of mixtures must maintain su ch records and submit such information to the extent the EPA 139 Administrator determines the maintenance of re cords or submission of reports, or both, is 140 necessary for the effective enforcement of TSCA . TSCA section 8(a) generally excludes small 141 manufacturers and processors of chemical substances or mixtures from the reporting 142 requirements. (See 15 U.S.C. § 2507(a). This gene ral exclusion has been codified at 40 CFR 143*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 7 of 25 sections 704.5 and 712.25). However, EPA is aut horized by TSCA section 8(a)(3)(A)(ii) to 144 require TSCA section 8(a) report ing from small manufacturers a nd processors with respect to 145 any chemical substance or mixture that is the subject of a rule proposed or promulgated under 146 TSCA section 4, 5(b)(4), or 6, or that is the s ubject of an order in e ffect under TSCA section 147 5(e), or that is the subject of relief granted pursuant to a civil action under TSCA section 5 or 7. 148 TSCA section 8(a) also notes that, to the extentfeasible, the EPA Administrator must not require 149 reporting under TSCA section 8(a)(1) th at is unnecessary or duplicative. 150 TSCA section 8(d) (15 USC 2607( d)) authorizes EPA to require the submission of lists of 151 health and safety studies conducted or initiated by or for, or know n to or reasonably ascertainable 152 by manufacturers, processors, and distributors of (and any pers on who proposes to manufacture, 153 process, or distribute) any chemi cal substance or mixture. Certain types or categories of studies 154 may be excluded “if the Administrator finds th at submission of lists of such studies are 155 unnecessary to carry out the purposes of [TSCA].” See TSCA secti on 8(d)(1). TSCA section 8(d) 156 also authorizes EPA to require the submission of copies of stud ies on these lists or copies of 157 studies that are otherwise known by the person submitting the list. 158 The Pollution Prevention Act (PPA) (42 U.S.C. 13101 et seq. ) makes pollution 159 prevention the national policy of the United St ates. The PPA identifies an environmental 160 management hierarchy in which pollution "should be pr evented or reduced whenever feasible; 161 pollution that cannot be prevented should be re cycled in an environm entally safe manner, 162 whenever feasible; pollution that cannot be prevented or recycl ed should be treated in an 163 environmentally safe manner whenever feasible; and disposal or release into the environment 164 should be employed only as a last resort* * *" (42 U.S.C. 13103). 165 III. Public Participation 166 With this document, EPA is requesting certain information related to chemical substances 167*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 8 of 25 and mixtures used in hydraulic fracturing and announcing its plans to involve stakeholders in 168 gathering information to help the agency in determining what information on chemical 169 substances and mixtures should be reported to EPA. EPA is also requesting stakeholder input on 170 the contours of the mechanism fo r such reporting to the agency or third-party certifiers and 171 public disclosure; including the extent it could or should rely on voluntary approaches apart from 172 or in conjunction with a regulatory mechanism established under TSCA s ection 8(a) and section 173 8(d). This document contains specific questi ons and requests for co mment in Unit IV. EPA 174 intends to involve stakeholders through one or more webinars and a public meeting. EPA has 175 scheduled a public meeting in Washington, DC a nd may add other locatio ns. Stakeholders are 176 encouraged to respond to these requests and pr ovide comment on any other matters pertaining to 177 the content of this document. 178 A. Webinar Date and Time 179 A webinar has been scheduled for Mont h xx, 2014, from x a.m. to x p.m Eastern 180 Standard Time. Further information on computer system requirements, and how to register and 181 access the webinar can be f ound at the following website: 182 http://www.epa.gov/hydrau licfracture/#outreach

. 183 B. Meeting Date and Location 184 A public meeting has been scheduled for Month xx, 2014, from x a.m. to x p.m in 185 Washington, DC. The meeting will be held at the Environmental Protection Agency, William 186 Jefferson Clinton East, Room 1153, 1201 Consti tution Ave., Washington, DC 20460. If EPA 187 determines there is sufficient public interest, ad ditional meeting locations and additional dates 188 may be added. For updates on additional meetings a nd meeting logistics, please see the web site: 189 http://www.epa.gov/hydrau licfracture/#outreach and related Federal Register notices. 190 C. Meeting Procedures 191*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 9 of 25 The meeting(s) will be open to the public. To ensure that all intere sted parties have an 192 opportunity to comment in the allo tted time, oral presentations or statements will be limited to 5 193 minutes. EPA therefore recommends that stakeholders who present oral comments also submit 194 written comments following the instructions provided under ADDRESSES

. 195 Stakeholders interested in attending a meeti ng are invited to pre-regi ster at the following 196 website: http://www.epa.gov/hydraulicfracture/#outreach at least 3 days prior to the meeting. 197 Pre-registering will allow EPA to improve meeti ng planning. Registered attendees requesting to 198 make an oral presentation will be placed on the commenting schedule and receive a time slot in 199 which to give comments. Time slots are limited and will be filled on a first-come, first-served 200 basis. 201 Special Accommodations: Any person needing special accommodation at a public 202 meeting, including wheelchair access or sign lang uage translator, shoul d contact the public 203 meeting coordinator listed under FOR FURTHER INFORMATION CONTACT . Requests for 204 special accommodations should be made at least 5 days prior to the meeting, in order to give 205 EPA sufficient time to process your request. 206 IV. Request for Comment 207 EPA is requesting comment on the design and sc ope of potential regulatory or voluntary 208 approaches, or combination of both approaches to obtain information on chemical substances 209 and mixtures used in hydraulic fracturing. Co mments should provide en ough detail and contain 210 sufficient supporting information in order for the ag ency to understand the i ssues raised and give 211 them the fullest consideration. Comments shoul d include alternatives, rationales, benefits, 212 technological and economic feasibility, and supporting data. Supporti ng information should 213 include any information that substantiates your conclusions and recomm endations, including, but 214 not limited to: Experiences, data, analyses, st udies and articles, and standard professional 215*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 10 of 25 practices. If referring to a partic ular well site as an example, please identify company name of 216 well site operator, well name, latitude and l ongitude coordinates and American Petroleum 217 Institute (API) identificati on number, if available. 218 A. Overall Approach to Reporting a nd Disclosure of Chemical Substances and Mixtures Used in 219 Hydraulic Fracturing 220 In this ANPR, EPA is seeking comment on wh at information should be reported to EPA 221 (or through a CBI cleared third-party certifier) or disc losed publically (by EPA) regarding the 222 identity, quantities, types and circ umstances of uses of chemical substances and mixtures used in 223 hydraulic fracturing, as well as what types of hea lth and safety studies should be reported or 224 disclosed. EPA is seeking comment on whether and how if reported, data that are claimed to be 225 trade secrets, or CBI, could be reported to EPA (or a third-party certifie r) and then aggregated 226 and disclosed while protecting the identities of individual products and firms. EPA is also 227 requesting comment on the appropriate mix of vo luntary disclosure and/ or regulatory reporting 228 mechanisms. The specific types of information that could be reported or disclosed are discussed 229 in Units IV.C. and IV.G. (It should be noted th at TSCA section 8(e) requires manufacturers, 230 importers, processors and distribut ors to provide EPA with information on any of their chemical 231 substances or mixtures that reasonably supports the conclusion that such substance or mixture 232 presents a substantial risk of injury to health or the environment.). 233 EPA is requesting comment on the following questions: 234 1. Should all information be required to be reported or should th ere be a voluntary 235 mechanism for some or all information? 236 2. Would a combination of mandatory reporting an d voluntary disclosure be effective? If 237 so, what would that combination consist of? Why? 238 3. What types of information, if any, should be required to be reported? Why? 239*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 11 of 25 4. How could any required repor ting activities be designe d to better facilitate 240 compliance? 241 5. What types of information, if any, should be reported and/or di sclosed voluntarily? 242 Why? 243 6. What are the best management practices for the generation, collection, reporting 244 and/or disclosure of informa tion from or by companies? 245 7. Are there particular systems in place th at already use these best management 246 practices? Please identify these systems. 247 8. To what extent are these best managementpractices widely a dopted? Please provide 248 evidence regarding the extent of us e of best management practices. 249 9. How could incentives be structured to en sure effective voluntary disclosure of 250 information on chemical substances and mixtures used in hydraulic fracturing? 251 10. Are there incentives that could be used in combination with regulatory requirements 252 for information disclosure to promote practices that go beyond compliance (e.g., incentives that 253 encourage reporting in addition to that required by regulation)? 254 11. What information collection tools and res ources are available to support and promote 255 safer chemical use and other sustainable practices (e.g., some form of cradle-to-grave chemical 256 management)? Please explain. 257 12. Should there be different incentives fo r different types of companies? 258 13. What information collection tools and resources are available to support and 259 incentivize practices that pr omote safe and sustainable practices? Please explain. 260 14. How could collected information be used to better inform chemical safety? For 261 example, would providing information or guida nce on improved chemical use across different 262 types of firms involved in hydraulic fracturing better inform chemical safety? 263*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 12 of 25 15. What mechanisms could be developed to ma ke information that is reported to EPA 264 publically disclosed and available? 265 16. How could information reported and/or disc losed under any such mechanism be used 266 to better inform research and development of chemical substances and mixtures used in 267 hydraulic fracturing? 268 B. Who Should Report or Disclose Information on Chemical Substances and Mixtures Used in 269 Hydraulic Fracturing? 270 TSCA section 8(a) gives EPA authority to require, by rulemaking, chemical 271 manufacturers and processors to maintain reco rds and submit to EPA reports about chemical 272 substances and mixtures, as we ll as environmental and health data on those substances and 273 mixtures. The hydraulic fracturing in dustry includes a variety of co mpanies that could be subject 274 to reporting under TSCA section 8(a). These comp anies could include ch emical manufacturers, 275 chemical suppliers who engage in processing, service providers mixing chemicals on site to 276 create the hydraulic fracturing fluids, and se rvice providers responsib le for injecting the 277 hydraulic fracturing fluid into th e well to fracture the formation. EPA is requesting comment on 278 whether, in the context of a pot ential reporting and/or disclosure program, all or any companies 279 should be required to report or whether a spec ific type or types of company (e.g., chemical 280 supplier) should be required to report and other types (e.g., serv ice provider) be encouraged to 281 report voluntarily. 282 1. If any companies are required to report , should different types of companies be 283 required to report different da ta elements? Please explain. 284 2. Should manufacturers (including importers), pro cessors, or both be required to report 285 under TSCA section 8(a)? Why or why not? 286 3. Are there additional North American Indus try Classification System (NAICS) codes 287*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 13 of 25 in addition to 2111 (Oil and Gas Extraction) and 2131 (Support Activities for Mining) that would 288 need to be included in order to cover ch emical manufacturers (i ncluding importers) and 289 processors in a potential reporti ng and/or disclosure program? 290 4. In what ways do the responsib ilities of manufacturers and processors (Ref. 6) overlap? 291 What activities associated with hydraulic fracturing are carried out by the well operator at the 292 well site? EPA understands that service providers or well operat ors often process chemicals at 293 the drilling site. 294 5. Would manufacturers (includi ng importers), service provid ers, well operators, or all 295 three, know how a chemical substance or mixture is used at well sites? If all types of firms have 296 this information, which type, if any, should be re quired to report? If ne ither service providers, 297 nor well operators, nor manufactur ers know how a chemical is us ed at well sites, who would 298 know and how might that use information be obtained? 299 6. If voluntary mechanisms are used for obt aining information, what mechanisms (e.g., 300 incentive programs) should EPA consider in or der to encourage consistent reporting and/or 301 disclosure from different types of companies? Would some mechanisms be more effective for 302 one type of company than another? 303 7. Should there be different incentives fo r different types of companies? 304 8. What information collection tools and res ources are available to support and promote 305 safe and sustainable prac tices? Please explain. 306 C. Scope of Reporting or Disclosure of Inform ation on Chemical Substances and Mixtures Used 307 in Hydraulic Fracturing 308 In this ANPR, EPA is seeking comment on th e information that s hould be reported or 309 disclosed regarding chemical substances and mixtures used in hydraulic fracturing. EPA is 310 exploring various voluntary approaches, regulat ory approaches or a combination of both for 311*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 14 of 25 obtaining this information. 312 TSCA section 8(a) gives EPA authority to require, by rulemaking, chemical 313 manufacturers and processors to maintain reco rds and submit to EPA such reports as EPA may 314 reasonably require, including repor ts concerning the following, insofar as it is known to or 315 reasonably ascertainable by th e person making the report: 316

 The common or trade name, the chemical identity, and the molecular structure of each 317 chemical substance or mixture for which such a report is required. 318

 The categories or proposed categories of us e of each chemical substance or mixture. 319

 The total amount of each chemical substa nce or mixture manufactured or processed, 320 reasonable estimates of the total amount to be manufactured or processed, the amount 321 manufactured or processed for each of its categ ories of use, and reasonable estimates of the 322 amount to be manufactured or processed for each of its categories of use or proposed categories 323 of use. 324

 A description of the byproducts resulting fr om the manufacture, processing, use, or 325 disposal of each chemical substance or mixture. 326

 All existing data concerning the environmen tal and health effect s of each chemical 327 substance or mixture. 328

 The number of individuals exposed, and reasonable estimates of the number who will 329 be exposed, to each chemical substance or mi xture in their places of employment and the 330 duration of such exposure. 331

 The manner or method of disposal of each chemical substance or mixture, and any 332 subsequent changes to such manner or method. 333 EPA expects that data obtained could be a ggregated to provide a national list of the 334 chemical substances and mixtures used in hydrau lic fracturing, providing the agency with the 335*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 15 of 25 ability to determine which chemicals are used most frequently. For chemicals that have not been 336 previously well-characterized in terms of their chemical, physical, and toxicological properties, 337 EPA may conduct research to bett er understand these properties in order to perform a basic risk 338 characterization. Information that could be requ ired from manufacturer s (including importers) 339 and processors under a potential repo rting program could include: 340 1. Basic company information (i.e., company name, mailing address, website and 341 technical contact information). 342 2. Steps involved in processing chemicals or mixtures on site before injection. Typical 343 composition and performance standard of hydraulic fracturing fluid as an end use product, before 344 injection. 345 3. Steps involved in processi ng chemicals or mixtures for reuse, recycling, and/or 346 reprocessing in the hydraulic fracturing operation. 347 4. Hydraulic fracturing fluid composition: 348 i. Common name or trade name of each chem ical product in the hydr aulic fracturing fluid 349 and a description of each product’s function. 350 ii. Chemical identity (chemical name and Ch emical Abstracts Service Registry Number) 351 of each chemical substance in each product. 352 iii. Total volume of the carrier fluid and percentage of the carrier fluid that makes up the 353 total hydraulic fracturing fluid (e.g., water volume and percentage of water in the hydraulic 354 fracturing fluid). 355 iv. Actual amount of each chemical substan ce or product in the hydraulic fracturing fluid 356 in order to understand the lo ading (e.g., mass or volume). 357 5. Production type (i.e., gas and/or oil). 358 6. Frequency of use of the chemical substa nce or mixture for hydraulic fracturing (e.g., 359*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 16 of 25 number of times or per fractur e stage or number of wells). 360 7. Number of workers exposed or likely to be exposed to the chemical substance or 361 mixture. 362 8. All existing data concerning the human a nd environmental hea lth effects of the 363 chemical substance or mixture. 364 9. Some chemical substances and mixtures us ed in hydraulic fracturing may react to 365 create other chemical substances and mixtures as products within an on-site mixing apparatus or 366 in the well that is being fractured. EPA is requesting comments on which reporting elements 367 should be included: 368 i. If EPA were to require reporting, how should EPA address chemical substances and 369 mixtures which are formed on site? Why? 370 ii. Is there other information obtainable under TSCA section 8(a) that should be included 371 in a proposed TSCA section 8(a) rule? What are the chemical safety benefits (e.g., potential 372 reduction of risk to human health and environmen t) of obtaining this information? Explain. 373 iii. Should EPA consider including repor ting on any combination of water and/or 374 chemicals introduced into an oil or gas well for the purpose of maintaining or improving the 375 function and productivity of the well (e.g. acid treatments, corrosion inhibitors, scale reducers, 376 biocides)? Why or why not? EPA is interested in information regarding the frequency, duration, 377 concentration and volume of use of such chemicals or chemical mixtures to enhance the agency’s 378 understanding of well maintenance practices, in order to evaluate the need for additional 379 disclosure. 380 10. While EPA could require manufacturers and processors to report this information, 381 the agency could also encour age companies engaged in hydraulic fracturing to voluntarily 382 disclose it. EPA is requesting comments on re porting elements which should be included: 383*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 17 of 25 i. Which elements (as discussed earlier in Unit IV.C.), if any, may benefit from being 384 proposed as part of a TSCA sec tion 8(a) rule? Which elements, if any, may benefit better from 385 being reported and/or disclose d under a voluntary program? 386 ii. Are there data elements (from those di scussed earlier in Unit IV.C.) for which a 387 hybridized reporting and/or disclosure system (e.g., some regulatory elements, some voluntary 388 elements) would be more efficient or beneficial? 389 D. Use of Third-Parties. 390 EPA is requesting comments on the use of thir d-parties for the collection of information 391 on chemical substances used in hydraulic fracturing and/or to certify the us e of best practices. 392 1. Should EPA consider implementing third-party certification (fo r certifying reporting, 393 practices and other aspects) an d/or third-party collection of hydraulic fracturing operations in 394 addition to or in lieu of a mandatory re porting or voluntary disc losure program? 395 2. What would such a certification program look like? 396 3. Are there existing programs that already certi fy best practices? Are they effective? 397 Are they independent? Could they be improved? How? 398 4. What should be considered (e.g. standards fo r third-parties, standards for collecting 399 chemical information) in implementing a third-party program? 400 5. How should chemical information be manage d by third-parties? Are there specific 401 roles that third-parties should have in data management? Please explain. 402 6. How should a third-party certifi er be funded? How could pe rceived or actual bias be 403 minimized? 404 E. Reporting Threshold and Frequency of Reporting or Disclosure 405 EPA is interested in comments regarding the th reshold for the size of entities that should 406 be required or encouraged to repo rt or disclose information on ch emical substances and mixtures 407*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 18 of 25 used in hydraulic fracturing and environmental and health data on those s ubstances and mixtures. 408 EPA is also interested in comments regarding how often reporting or disclosure should take 409 place: 410 1. Are there thresholds that might be appropriate to limit reporting by small 411 manufacturers or processors under either a regul atory or a voluntary program (e.g., the thresholds 412 that define “small manufacturer ” in 40 CFR sections 704.3 and 712.25)? Why? If available, how 413 would the recommended reporting threshold affe ct cost to the reporting entity? How might 414 different reporting thresholds affect the usefulness of the data provided? 415 2. Given possible changes in the composition of hydraulic fracturing fl uids over time and 416 changes in ownership of a well, how often and wh en should an entity report information to EPA 417 or publicly disclose it? 418 3. What would be the effect of changes in th e frequency of reporting and/or disclosure 419 on the overall cost of reporting or disclosure? What would be the effect of changes in level of 420 aggregation or other aspects of reporting and/or disclosure? 421 F. Data Collection Efficiency 422 EPA believes that any mechanism for reporti ng and/or disclosure of information on 423 chemical substances and mixtures should be stru ctured in a manner that minimizes the potential 424 for duplication and overlap. 425 1. EPA requests comment on how best to minimize duplicative reporting and/or 426 disclosure requirements, particul arly for companies that may al so report to the BLM, state 427 agencies, and to other parties. For example, should EPA limit its data collection to items not 428 collected by other parties? How much overlap is acceptable? 429 2. How can the agency achieve the goal of efficient data collection while also 430 maximizing transparency and public understanding? 431*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 19 of 25 3. In order to encourage transparency a nd information sharing while minimizing 432 duplication, what information co llection repository or database should EPA use? Should EPA 433 develop a repository or use an existing one such as FracFocus (Ref. 7) or data.gov? If an existing 434 repository is recommended, indicate whic h repository and why. Are any changes or 435 enhancements recommended to this existing repository? 436 4. EPA believes that any TSCA reporting re quirements should complement existing 437 reporting programs and data sources, such as st ate databases and web s ites like FracFocus in 438 order to avoid duplication. Ho w could this be achieved? 439 G. Health and Safety Studies of Chemicals and Mixtures used in Hydraulic Fracturing 440 EPA is seeking comment on potential options for reporting or disclosure of health and 441 safety studies for chemical substances a nd mixtures used in hydraulic fracturing. 442 TSCA section 8(d) authorizes EPA to require manufacturers, processo rs, and distributors 443 of any chemical substance or mixture and pe rsons who propose to manufacture, process, or 444 distribute in commerce any chemical substance or mixture to submit health and safety studies to 445 EPA. Examples of health and safety studies are: 446

 Epidemiological or clinical studies. 447

 Studies of occupational exposure. 448

 Health effects studies. 449

 Ecological effects studies. 450

 Assessments of environmental exposure. 451

 Environmental fate studies. 452

 Health and safety studies related to surface or ground water sampling and analyses 453 when aggregated and analyzed to measure exposure. 454

 Additional examples can be found in 40 CFR 716.3. 455*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 20 of 25 One mechanism for the collection of thes e studies is TSCA section 8(d). Other 456 mechanisms could include voluntary approaches . EPA is requesting comment on the types of 457 companies that would report or disclose health and safety studies. EPA also is requesting 458 comment on whether companies should be required to report studies or en couraged to disclose 459 studies, or whether a combinati on of regulatory and voluntary approaches should be used to 460 obtain health and safety studies. 461 1. Should all manufacturers (including importers ), processors, and distributors provide 462 lists or copies of health and safety studies or should reporting only be requ ired of some types of 463 companies? Why or why not? 464 2. Are there existing mechanisms in place, including non-regulatory mechanisms, for 465 EPA to obtain these studies? If not, what woul d be an effective regulatory approach and/or 466 voluntary mechanism for EPA to obtain these studies? 467 3. Is there an approach that more effectiv ely encourages further health and safety 468 studies? 469 4. Some chemical substances and mixtures used in hydraulic fractu ring are more studied 470 than others. Some are considered to be well- characterized in terms of hazard and exposure 471 information. If EPA were to require reporting, should EPA limit reportin g requirements to the 472 chemical substances and mixtures that EP A believes are not well-characterized? Why? 473 5. If a TSCA section 8(d) rule were promul gated, should it require reporting of studies 474 for all chemical substances and mixtures used in hydraulic fracturing or only a subset? Why? If 475 only certain chemicals should be included in the rule, which ones should EPA include? 476 6. Are there particular types of studies that should be required to be submitted or should 477 all health and safety studies be required to be submitted? Why? 478 7. Are there studies that are of greater inte rest if they are conducted by a particular 479*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 21 of 25 entity, e.g., service providers? Fo r example, an assessment of environmental exposure may be 480 viewed as more important because of the e nvironment that is the focus of the study. 481 8. Would it be more efficient (timely and costeffective) to submit health and safety 482 studies to a third-party? W hy or why not? If so, why and what type of third-party? 483 I. Safer Chemicals and Transparency 484 Incentives and recognition programs could be us ed to support the development and use of 485 safer chemicals (both those created deliberately and inadvertently) in hydraulic fracturing. Safer 486 chemicals are generally less toxic to human health and the envir onment, and are less persistent 487 and bioaccumulative than their alternatives. Ther e are a range of EPA programs that support less 488 toxic chemical usage and manage ment which may serve as models for application to hydraulic 489 fracturing. A similar program focusing on chemi cals used in hydraulic fracturing could speed 490 adoption by well owners, operators and suppliers of safer chemicals. The program could also 491 increase public understanding about chemical choice and use in hydraulic fracturing. 492 EPA would like to determine whether these pr ograms could be used as possible models 493 for consideration of chemicals and mixtures us ed in hydraulic fracturi ng and whether there are 494 other programs that would be more effective. In order to determine whether replacement 495 chemicals are safer, it would be important to ta ke into account the effectiveness and potential 496 associated risks with the alte rnative chemical. EPA requests comment on strategies for creating 497 incentives and voluntary approaches for the development and use of safer chemicals. 498 1. Are there other TSCA sections that could also further support safer chemicals more 499 effectively? 500 2. What programs are appropriate to encourage the use of safer chemicals already on the 501 market? 502 3. For this industry, are exis ting programs that encourag e the development of safer 503*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 22 of 25 chemicals appropriate? Could EP A change those programs to ma ke them more effective in 504 inducing well operators to use safer chemicals? How? 505 V. Statutory and Executive Order Reviews 506 Under Executive Orders 12866, entitled ‘‘R egulatory Planning and Review’’ (58 FR 507 51735, October 4, 1993) and 13563, entitled ‘‘Improvi ng Regulation and Regulatory Review’’ 508 (76 FR 3821, January 21, 2011), this is a “significa nt regulatory action” because it raises novel 509 legal and/or policy issues. Accordingly, EPA subm itted this action to the Office of Management 510 and Budget (OMB) for review unde r these Executive Orders and any changes made in response 511 to OMB recommendations have been documen ted in the docket for this action. 512 Because this document does not impose or propose any requirements, and instead seeks 513 comments and suggestions for the agency to c onsider in possibly developing a subsequent 514 proposed rule, the various othe r review requirements that apply when an agency imposes 515 requirements do not apply to this action. Neverthe less, as part of your comments on this ANPR, 516 you may include any comments or information that c ould help the agency to assess the potential 517 impact of a subsequent regulatory action on small entities pursuant to the Regulatory Flexibility 518 Act (5 U.S.C. 601 et seq.); to consider voluntary consensus standards purs uant to section 12(d) 519 of the National Technology Transfer and Advancem ent Act (15 U.S.C. 272 note); to consider 520 environmental health or safety effects on ch ildren pursuant to Execu tive Order 13045, entitled 521 ‘‘Protection of Children from Environmental Health Risks an d Safety Risks’’ (62 FR 19885, 522 April 23, 1997); to consider human health or e nvironmental effects on minority or low-income 523 populations pursuant to Executive Order 12898, entitled ‘‘Federal Actions to Address 524 Environmental Justice in Minority Populati ons and Low-Income Populations’’ (59 FR 7629, 525 February 16, 1994); or to considerpotential impacts to state a nd local governments or tribal 526 governments. 527*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 23 of 25 The agency will consider such comments during the development of any subsequent 528 rulemaking as it takes appropr iate steps to address any applicable requirements. 529 VI. References 530 The following is a list of the materials that ar e specifically referenced in this document. 531 The docket identified under ADDRESSES includes these references and other information 532 considered by EPA. For assistance, pleas e consult the technica l contact listed under FOR 533 FURTHER INFORMATION CONTACT

. 534 1. Toxic Substances Control Act, Section 3, 15 USC 2602. 535 2. Earthjustice and 114 other organizations. Lette r from Deborah Goldberg, Earthjustice 536 to Wendy Cleland-Hamnett, Director, Office of Pollution Prevention and Toxics. Re: Citizen 537 Petition Under Toxic Substances Control Act Regarding the Chemi cal Substances and Mixtures 538 Used in Oil and Gas Exploration or Pr oduction. August 4, 2011. Available on-line at: 539 http://www.epa.gov/oppt/chemtes t/pubs/Section_21_Petition _on_Oil_Gas_Drilling_and_Frackin 540 g_Chemicals8.4.2011.pdf

. 541 3. EPA. Letter from EPA Administrator Li sa P. Jackson to Deborah Goldberg, 542 Earthjustice, Re: TSCA Section 21 Petition Concerning Chemical S ubstances and Mixtures Used 543 in Oil and Gas Exploration or Produc tion. November 2, 2011. Available on-line at: 544 http://www.epa.gov/oppt/chemtest/p ubs/SO.Earthjustice.Response.11.2.pdf

. 545 4. EPA. Letter from EPA Administrator Li sa P. Jackson to Deborah Goldberg, 546 Earthjustice, Re: TSCA Section 21 Petition Concerning Chemical S ubstances and Mixtures Used 547 in Oil and Gas Exploration or Producti on. November 23, 2011. Available on-line at: 548 http://www.epa.gov/oppt/chemtest/pubs/EPA_ Letter_to_Earthjustice_on_TSCA_Petition.pdf

. 549 5. EPA. Chemical Substances and Mixtures Used in Oil and Gas Exploration or 550 Production; TSCA Section 21 Petition Reasons for Agency Response. 78 FR 41768, July 11, 551*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 24 of 25 2013. 552 6. TSCA Statutory Definitions Document. February 11, 2014. 553 7. FracFocus Chemical Disclosure Registry. Available on-line at: 554 http://www.fracfocus.org

. 555 8. EPA. TSCA New Chemicals Program. Available on-line at: 556 http://www.epa.gov/oppt/newchems/

. 557 558*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review ***

[RIN 2070-AJ93] Page 25 of 25 List of Subjects in 40 CFR Chapter 1, Subchapter R 559 Environmental protection, Chemicals, Hazardous substances, Exploration and 560 production, Hydraulic fracturing, Fracking, Oil and gas, Confidential business information, 561 Reporting and recordkeeping

. 562 Dated: ____________________ 563 564 565

________________________________ 566 Gina McCarthy 567 Administrator. 568