*** EO 12866 Review Draft – Deliberative – Do Not Cite, Quote or Release During Review *** 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

1 Billing Code 6560-50-P 

2 ENVIRONMENTAL PROTECTION AGENCY 

3 40 CFR Chapter 1, Subchapter R 

4 EPA-HQ-OPPT-2011-1019; FRL-XXXX-X 

5 RIN 2070-AJ93 

6 Hydraulic Fracturing Chemicals and Mixtures 

7 AGENCY: Environmental Protection Agency (EPA). 

8 ACTION: Advance notice of proposed rulemaking (ANPR). 

9 SUMMARY: In its response to a citizen petition submitted under section 21 of the Toxic 

10 Substances Control Act (TSCA), EPA indicated that as a first step, it would convene a 

11 stakeholder process to develop an approach to obtain information on chemical substances and 

12 mixtures used in hydraulic fracturing. To gather information to inform EPA’s proposal, the 

13 agency is issuing this ANPR and initiating a public participation process to seek comment on the 

14 information that should be reported or disclosed for hydraulic fracturing chemical substances and 

15 mixtures and the mechanism for obtaining this information. This mechanism could be regulatory 

16 (under TSCA section 8(a) and/or section 8(d)), voluntary or a combination of both, and could 

17 include best management practices, third-party certification and collection and incentives for 

18 disclosure of this information. In addition, the agency is seeking comment on ways of 

19 minimizing reporting burdens and costs and of avoiding the duplication of state and other federal 

20 agency information collections, while at the same time maximizing data available for EPA risk 

21 characterization, external transparency, and public understanding. Also, EPA is soliciting 

22 comments on incentives and recognition programs that could be used to support the development 

23 and use of safer chemicals in hydraulic fracturing. 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 2 of 25

24 DATES: Comments must be received on or before [insert date 60 days after date of publication 

25 in the Federal Register]. See Unit III. for meeting dates and procedures associated with the 

26 meetings.

27 ADDRESSES: Submit your comments, identified by docket 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), Office 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. 

36 Additional instructions on commenting or visiting the docket, along with more 

37 information about dockets generally, is available at http://www.epa.gov/dockets.

38 FOR FURTHER INFORMATION CONTACT: 

39 Technical information contact: Mark Seltzer, Chemical Control Division (7405M), 

40 Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 

41 Pennsylvania Ave., NW., Washington, DC 20460-0001; telephone number: 202-564-2901; email 

42 address: seltzer.mark@epa.gov.

43 General information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton 

44 Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address: TSCA45 Hotline@epa.gov. 

46 Public meeting coordinator: Mark Seltzer; telephone number: 202-564-2901; email 

47 address: seltzer.mark@epa.gov. 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 3 of 25

48 SUPPLEMENTARY INFORMATION: 

49 I. General Information 

50 A. Does this Action Apply to Me? 

51 This action is directed to the public in general. This action, however, may be of interest to 

52 you if you manufacture (including import), process, or distribute chemical substances or 

53 mixtures (Ref. 1) used in any type or method of hydraulic fracturing. This may include 

54 businesses that falls under North American Industry Classification System (NAICS) codes 2111 

55 (Oil and Gas Extraction) and/or 2131 (Support Activities for Mining). EPA anticipates that this 

56 ANPR may also be of interest to states, tribes, and other industries. Since other entities may also 

57 be interested, the agency has not attempted to describe all the specific entities that may be 

58 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 within 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 may ask you to respond to specific questions or 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 4 of 25

72 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 any 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 reproduced. Likewise, if you estimate 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 clearly 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 requiring toxicity testing of 

88 chemicals and mixtures used in oil and gas exploration and production, reporting of, among other 

89 things, to EPA the identity of those chemicals and mixtures, and submitting to EPA health and 

90 safety studies on the chemicals and mixtures (Ref. 2). On November 2, 2011, EPA provided an 

91 initial response to the petition (Ref. 3). In that response, EPA denied the TSCA section 4 request 

92 for issuance of a test rule because the petition did not set forth sufficient facts to conclude that it 

93 was “necessary to issue” the requested TSCA section 4 rule, as required by TSCA section 

94 21(b)(1). On November 23, 2011, EPA granted in part and denied in part the TSCA section 8(a) 

95 and section 8(d) requests limiting the scope to chemical substances and mixtures used in 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 5 of 25

96 hydraulic fracturing (Refs. 4, 5). EPA published a notice with the agency’s rationale for its 

97 response to the petition in the Federal Register (78 FR 41768, July 11, 2013) (FRL 9339–4). To 

98 facilitate public comment, the agency stated its intent to publish an ANPR to identify key issues 

99 for further discussion and analysis. 

100 EPA maintains continuing coordination with its Federal partners in planning information 

101 reporting rules that will complement the Bureau of Land Management’s (BLM) proposed 

102 regulation: Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands (78 FR 31636, 

103 May 24, 2013). A supplemental proposal and extension of comment period published in the 

104 Federal Register of June 10, 2013 (78 FR 34611). The intent of these dialogues is to ensure 

105 both EPA and BLM’s efforts provide useful information for assessment and disclosure purposes, 

106 while not overly burdening reporting entities. 

107 A. What Action is the Agency Taking? 

108 With this ANPR, EPA is initiating a stakeholder process to request input on various 

109 aspects of obtaining information on chemical substances and mixtures used in hydraulic 

110 fracturing, including input on appropriate disclosure to ensure transparency of chemicals used in 

111 hydraulic fracturing activities. These activities include the injection of water, chemicals, 

112 proppant, and /or tracers to prepare geologic formations for hydraulic fracturing, complete a 

113 hydraulic fracturing stimulation stage, evaluate the extent of resulting fractures, or ensure future 

114 ability to continue enhancement of production through stimulation by hydraulic fracturing. 

115 During each hydraulic fracturing stimulation stage, pressurized fluids containing carrier fluids 

116 such as water or gas and any combination of proppant and chemicals are injected into wells to 

117 fracture portions of the formation surrounding a selected well section. As discussed in more 

118 detail in Unit IV., EPA is requesting comment on the information that should be obtained or 

119 disclosed and the mechanism for obtaining or disclosing this information of chemicals and 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 6 of 25

120 mixtures used in hydraulic fracturing. This mechanism could be regulatory (under TSCA section 

121 8(a) and/or section 8(d)), voluntary, or a combination of both. EPA is also seeking comment on 

122 best management practices for hydraulic fracturing—that is, practices or operations that can be 

123 implemented and verified toward achieving protection of public health and the environment—

124 and whether voluntary third-party certification, and incentives for disclosure could be valuable 

125 tools for improving chemical safety. In addition, the agency is seeking comment on ways to 

126 minimize reporting burdens and costs, avoid duplication of efforts, and maximize transparency 

127 and public understanding. Finally, EPA is soliciting comments on incentives and recognition 

128 programs that could be used to support the development and use of safer chemicals in hydraulic 

129 fracturing. 

130 In addition to inviting written public comments, EPA has scheduled a webinar and public 

131 meeting for presenting oral comments, and may schedule additional meetings and/or webinars. 

132 Specific information regarding the dates and times of the webinar and public meeting(s) is 

133 included in Unit III. 

134 B. What is the Agency's Authority for this Action? 

135 TSCA section 8(a) (15 USC 2607(a)) authorizes EPA to promulgate rules under which 

136 manufacturers (including importers) and processors of chemical substances must maintain such 

137 records and submit such information as the EPA Administrator may reasonably require. TSCA 

138 section 8(a) also authorizes EPA to promulgate rules under which manufacturers and processors 

139 of mixtures must maintain such records and submit such information to the extent the EPA 

140 Administrator determines the maintenance of records or submission of reports, or both, is 

141 necessary for the effective enforcement of TSCA. TSCA section 8(a) generally excludes small 

142 manufacturers and processors of chemical substances or mixtures from the reporting 

143 requirements. (See 15 U.S.C. § 2507(a). This general exclusion has been codified at 40 CFR 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 7 of 25

144 sections 704.5 and 712.25). However, EPA is authorized by TSCA section 8(a)(3)(A)(ii) to 

145 require TSCA section 8(a) reporting from small manufacturers and processors with respect to 

146 any chemical substance or mixture that is the subject of a rule proposed or promulgated under 

147 TSCA section 4, 5(b)(4), or 6, or that is the subject of an order in effect under TSCA section 

148 5(e), or that is the subject of relief granted pursuant to a civil action under TSCA section 5 or 7. 

149 TSCA section 8(a) also notes that, to the extent feasible, the EPA Administrator must not require 

150 reporting under TSCA section 8(a)(1) that is unnecessary or duplicative. 

151 TSCA section 8(d) (15 USC 2607(d)) authorizes EPA to require the submission of lists of 

152 health and safety studies conducted or initiated by or for, or known to or reasonably ascertainable 

153 by manufacturers, processors, and distributors of (and any person who proposes to manufacture, 

154 process, or distribute) any chemical substance or mixture. Certain types or categories of studies 

155 may be excluded “if the Administrator finds that submission of lists of such studies are 

156 unnecessary to carry out the purposes of [TSCA].” See TSCA section 8(d)(1). TSCA section 8(d) 

157 also authorizes EPA to require the submission of copies of studies on these lists or copies of 

158 studies that are otherwise known by the person submitting the list. 

159 The Pollution Prevention Act (PPA) (42 U.S.C. 13101 et seq.) makes pollution 

160 prevention the national policy of the United States. The PPA identifies an environmental 

161 management hierarchy in which pollution "should be prevented or reduced whenever feasible; 

162 pollution that cannot be prevented should be recycled in an environmentally safe manner, 

163 whenever feasible; pollution that cannot be prevented or recycled should be treated in an 

164 environmentally safe manner whenever feasible; and disposal or release into the environment 

165 should be employed only as a last resort* * *" (42 U.S.C. 13103). 

166 III. Public Participation 

167 With this document, EPA is requesting certain information related to chemical substances 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 8 of 25

168 and mixtures used in hydraulic fracturing and announcing its plans to involve stakeholders in 

169 gathering information to help the agency in determining what information on chemical 

170 substances and mixtures should be reported to EPA. EPA is also requesting stakeholder input on 

171 the contours of the mechanism for such reporting to the agency or third-party certifiers and 

172 public disclosure; including the extent it could or should rely on voluntary approaches apart from 

173 or in conjunction with a regulatory mechanism established under TSCA section 8(a) and section 

174 8(d). This document contains specific questions and requests for comment in Unit IV. EPA 

175 intends to involve stakeholders through one or more webinars and a public meeting. EPA has 

176 scheduled a public meeting in Washington, DC and may add other locations. Stakeholders are 

177 encouraged to respond to these requests and provide comment on any other matters pertaining to 

178 the content of this document. 

179 A. Webinar Date and Time 

180 A webinar has been scheduled for Month xx, 2014, from x a.m. to x p.m Eastern 

181 Standard Time. Further information on computer system requirements, and how to register and 

182 access the webinar can be found at the following website: 

183 http://www.epa.gov/hydraulicfracture/#outreach. 

184 B. Meeting Date and Location 

185 A public meeting has been scheduled for Month xx, 2014, from x a.m. to x p.m in 

186 Washington, DC. The meeting will be held at the Environmental Protection Agency, William 

187 Jefferson Clinton East, Room 1153, 1201 Constitution Ave., Washington, DC 20460. If EPA 

188 determines there is sufficient public interest, additional meeting locations and additional dates 

189 may be added. For updates on additional meetings and meeting logistics, please see the web site: 

190 http://www.epa.gov/hydraulicfracture/#outreach and related Federal Register notices. 

191 C. Meeting Procedures 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 9 of 25

192 The meeting(s) will be open to the public. To ensure that all interested parties have an 

193 opportunity to comment in the allotted time, oral presentations or statements will be limited to 5 

194 minutes. EPA therefore recommends that stakeholders who present oral comments also submit 

195 written comments following the instructions provided under ADDRESSES. 

196 Stakeholders interested in attending a meeting are invited to pre-register at the following 

197 website: http://www.epa.gov/hydraulicfracture/#outreach at least 3 days prior to the meeting. 

198 Pre-registering will allow EPA to improve meeting planning. Registered attendees requesting to 

199 make an oral presentation will be placed on the commenting schedule and receive a time slot in 

200 which to give comments. Time slots are limited and will be filled on a first-come, first-served 

201 basis. 

202 Special Accommodations: Any person needing special accommodation at a public 

203 meeting, including wheelchair access or sign language translator, should contact the public 

204 meeting coordinator listed under FOR FURTHER INFORMATION CONTACT. Requests for 

205 special accommodations should be made at least 5 days prior to the meeting, in order to give 

206 EPA sufficient time to process your request. 

207 IV. Request for Comment

208 EPA is requesting comment on the design and scope of potential regulatory or voluntary 

209 approaches, or combination of both approaches to obtain information on chemical substances 

210 and mixtures used in hydraulic fracturing. Comments should provide enough detail and contain 

211 sufficient supporting information in order for the agency to understand the issues raised and give 

212 them the fullest consideration. Comments should include alternatives, rationales, benefits, 

213 technological and economic feasibility, and supporting data. Supporting information should 

214 include any information that substantiates your conclusions and recommendations, including, but 

215 not limited to: Experiences, data, analyses, studies and articles, and standard professional 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 10 of 25

216 practices. If referring to a particular well site as an example, please identify company name of 

217 well site operator, well name, latitude and longitude coordinates and American Petroleum 

218 Institute (API) identification number, if available. 

219 A. Overall Approach to Reporting and Disclosure of Chemical Substances and Mixtures Used in 

220 Hydraulic Fracturing 

221 In this ANPR, EPA is seeking comment on what information should be reported to EPA 

222 (or through a CBI cleared third-party certifier) or disclosed publically (by EPA) regarding the 

223 identity, quantities, types and circumstances of uses of chemical substances and mixtures used in 

224 hydraulic fracturing, as well as what types of health and safety studies should be reported or 

225 disclosed. EPA is seeking comment on whether and how if reported, data that are claimed to be 

226 trade secrets, or CBI, could be reported to EPA (or a third-party certifier) and then aggregated 

227 and disclosed while protecting the identities of individual products and firms. EPA is also 

228 requesting comment on the appropriate mix of voluntary disclosure and/or regulatory reporting 

229 mechanisms. The specific types of information that could be reported or disclosed are discussed 

230 in Units IV.C. and IV.G. (It should be noted that TSCA section 8(e) requires manufacturers, 

231 importers, processors and distributors to provide EPA with information on any of their chemical 

232 substances or mixtures that reasonably supports the conclusion that such substance or mixture 

233 presents a substantial risk of injury to health or the environment.). 

234 EPA is requesting comment on the following questions: 

235 1. Should all information be required to be reported or should there be a voluntary 

236 mechanism for some or all information? 

237 2. Would a combination of mandatory reporting and voluntary disclosure be effective? If 

238 so, what would that combination consist of? Why? 

239 3. What types of information, if any, should be required to be reported? Why? 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 11 of 25

240 4. How could any required reporting activities be designed to better facilitate 

241 compliance? 

242 5. What types of information, if any, should be reported and/or disclosed voluntarily? 

243 Why? 

244 6. What are the best management practices for the generation, collection, reporting 

245 and/or disclosure of information from or by companies? 

246 7. Are there particular systems in place that already use these best management 

247 practices? Please identify these systems. 

248 8. To what extent are these best management practices widely adopted? Please provide 

249 evidence regarding the extent of use of best management practices. 

250 9. How could incentives be structured to ensure effective voluntary disclosure of 

251 information on chemical substances and mixtures used in hydraulic fracturing? 

252 10. Are there incentives that could be used in combination with regulatory requirements 

253 for information disclosure to promote practices that go beyond compliance (e.g., incentives that 

254 encourage reporting in addition to that required by regulation)? 

255 11. What information collection tools and resources are available to support and promote 

256 safer chemical use and other sustainable practices (e.g., some form of cradle-to-grave chemical 

257 management)? Please explain. 

258 12. Should there be different incentives for different types of companies? 

259 13. What information collection tools and resources are available to support and 

260 incentivize practices that promote safe and sustainable practices? Please explain. 

261 14. How could collected information be used to better inform chemical safety? For 

262 example, would providing information or guidance on improved chemical use across different 

263 types of firms involved in hydraulic fracturing better inform chemical safety? 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 12 of 25

264 15. What mechanisms could be developed to make information that is reported to EPA 

265 publically disclosed and available? 

266 16. How could information reported and/or disclosed under any such mechanism be used 

267 to better inform research and development of chemical substances and mixtures used in 

268 hydraulic fracturing? 

269 B. Who Should Report or Disclose Information on Chemical Substances and Mixtures Used in 

270 Hydraulic Fracturing? 

271 TSCA section 8(a) gives EPA authority to require, by rulemaking, chemical 

272 manufacturers and processors to maintain records and submit to EPA reports about chemical 

273 substances and mixtures, as well as environmental and health data on those substances and 

274 mixtures. The hydraulic fracturing industry includes a variety of companies that could be subject 

275 to reporting under TSCA section 8(a). These companies could include chemical manufacturers, 

276 chemical suppliers who engage in processing, service providers mixing chemicals on site to 

277 create the hydraulic fracturing fluids, and service providers responsible for injecting the 

278 hydraulic fracturing fluid into the well to fracture the formation. EPA is requesting comment on 

279 whether, in the context of a potential reporting and/or disclosure program, all or any companies 

280 should be required to report or whether a specific type or types of company (e.g., chemical 

281 supplier) should be required to report and other types (e.g., service provider) be encouraged to 

282 report voluntarily. 

283 1. If any companies are required to report, should different types of companies be 

284 required to report different data elements? Please explain. 

285 2. Should manufacturers (including importers), processors, or both be required to report 

286 under TSCA section 8(a)? Why or why not? 

287 3. Are there additional North American Industry Classification System (NAICS) codes 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 13 of 25

288 in addition to 2111 (Oil and Gas Extraction) and 2131 (Support Activities for Mining) that would 

289 need to be included in order to cover chemical manufacturers (including importers) and 

290 processors in a potential reporting and/or disclosure program? 

291 4. In what ways do the responsibilities of manufacturers and processors (Ref. 6) overlap? 

292 What activities associated with hydraulic fracturing are carried out by the well operator at the 

293 well site? EPA understands that service providers or well operators often process chemicals at 

294 the drilling site. 

295 5. Would manufacturers (including importers), service providers, well operators, or all 

296 three, know how a chemical substance or mixture is used at well sites? If all types of firms have 

297 this information, which type, if any, should be required to report? If neither service providers, 

298 nor well operators, nor manufacturers know how a chemical is used at well sites, who would 

299 know and how might that use information be obtained? 

300 6. If voluntary mechanisms are used for obtaining information, what mechanisms (e.g., 

301 incentive programs) should EPA consider in order to encourage consistent reporting and/or 

302 disclosure from different types of companies? Would some mechanisms be more effective for 

303 one type of company than another? 

304 7. Should there be different incentives for different types of companies? 

305 8. What information collection tools and resources are available to support and promote 

306 safe and sustainable practices? Please explain. 

307 C. Scope of Reporting or Disclosure of Information on Chemical Substances and Mixtures Used 

308 in Hydraulic Fracturing 

309 In this ANPR, EPA is seeking comment on the information that should be reported or 

310 disclosed regarding chemical substances and mixtures used in hydraulic fracturing. EPA is 

311 exploring various voluntary approaches, regulatory approaches or a combination of both for 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 14 of 25

312 obtaining this information. 

313 TSCA section 8(a) gives EPA authority to require, by rulemaking, chemical 

314 manufacturers and processors to maintain records and submit to EPA such reports as EPA may 

315 reasonably require, including reports concerning the following, insofar as it is known to or 

316 reasonably ascertainable by the person making the report: 

317  The common or trade name, the chemical identity, and the molecular structure of each 

318 chemical substance or mixture for which such a report is required. 

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

320  The total amount of each chemical substance or mixture manufactured or processed, 

321 reasonable estimates of the total amount to be manufactured or processed, the amount 

322 manufactured or processed for each of its categories of use, and reasonable estimates of the 

323 amount to be manufactured or processed for each of its categories of use or proposed categories 

324 of use. 

325  A description of the byproducts resulting from the manufacture, processing, use, or 

326 disposal of each chemical substance or mixture. 

327  All existing data concerning the environmental and health effects of each chemical 

328 substance or mixture. 

329  The number of individuals exposed, and reasonable estimates of the number who will 

330 be exposed, to each chemical substance or mixture in their places of employment and the 

331 duration of such exposure. 

332  The manner or method of disposal of each chemical substance or mixture, and any 

333 subsequent changes to such manner or method. 

334 EPA expects that data obtained could be aggregated to provide a national list of the 

335 chemical substances and mixtures used in hydraulic fracturing, providing the agency with the 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 15 of 25

336 ability to determine which chemicals are used most frequently. For chemicals that have not been 

337 previously well-characterized in terms of their chemical, physical, and toxicological properties, 

338 EPA may conduct research to better understand these properties in order to perform a basic risk 

339 characterization. Information that could be required from manufacturers (including importers) 

340 and processors under a potential reporting program could include: 

341 1. Basic company information (i.e., company name, mailing address, website and 

342 technical contact information). 

343 2. Steps involved in processing chemicals or mixtures on site before injection. Typical 

344 composition and performance standard of hydraulic fracturing fluid as an end use product, before 

345 injection. 

346 3. Steps involved in processing chemicals or mixtures for reuse, recycling, and/or 

347 reprocessing in the hydraulic fracturing operation. 

348 4. Hydraulic fracturing fluid composition: 

349 i. Common name or trade name of each chemical product in the hydraulic fracturing fluid 

350 and a description of each product’s function. 

351 ii. Chemical identity (chemical name and Chemical Abstracts Service Registry Number) 

352 of each chemical substance in each product. 

353 iii. Total volume of the carrier fluid and percentage of the carrier fluid that makes up the 

354 total hydraulic fracturing fluid (e.g., water volume and percentage of water in the hydraulic 

355 fracturing fluid). 

356 iv. Actual amount of each chemical substance or product in the hydraulic fracturing fluid 

357 in order to understand the loading (e.g., mass or volume). 

358 5. Production type (i.e., gas and/or oil). 

359 6. Frequency of use of the chemical substance or mixture for hydraulic fracturing (e.g., 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 16 of 25

360 number of times or per fracture stage or number of wells). 

361 7. Number of workers exposed or likely to be exposed to the chemical substance or 

362 mixture. 

363 8. All existing data concerning the human and environmental health effects of the 

364 chemical substance or mixture. 

365 9. Some chemical substances and mixtures used in hydraulic fracturing may react to 

366 create other chemical substances and mixtures as products within an on-site mixing apparatus or 

367 in the well that is being fractured. EPA is requesting comments on which reporting elements 

368 should be included: 

369 i. If EPA were to require reporting, how should EPA address chemical substances and 

370 mixtures which are formed on site? Why? 

371 ii. Is there other information obtainable under TSCA section 8(a) that should be included 

372 in a proposed TSCA section 8(a) rule? What are the chemical safety benefits (e.g., potential 

373 reduction of risk to human health and environment) of obtaining this information? Explain. 

374 iii. Should EPA consider including reporting on any combination of water and/or 

375 chemicals introduced into an oil or gas well for the purpose of maintaining or improving the 

376 function and productivity of the well (e.g. acid treatments, corrosion inhibitors, scale reducers, 

377 biocides)? Why or why not? EPA is interested in information regarding the frequency, duration, 

378 concentration and volume of use of such chemicals or chemical mixtures to enhance the agency’s 

379 understanding of well maintenance practices, in order to evaluate the need for additional 

380 disclosure. 

381 10. While EPA could require manufacturers and processors to report this information, 

382 the agency could also encourage companies engaged in hydraulic fracturing to voluntarily 

383 disclose it. EPA is requesting comments on reporting elements which should be included: 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 17 of 25

384 i. Which elements (as discussed earlier in Unit IV.C.), if any, may benefit from being 

385 proposed as part of a TSCA section 8(a) rule? Which elements, if any, may benefit better from 

386 being reported and/or disclosed under a voluntary program? 

387 ii. Are there data elements (from those discussed earlier in Unit IV.C.) for which a 

388 hybridized reporting and/or disclosure system (e.g., some regulatory elements, some voluntary 

389 elements) would be more efficient or beneficial? 

390 D. Use of Third-Parties. 

391 EPA is requesting comments on the use of third-parties for the collection of information 

392 on chemical substances used in hydraulic fracturing and/or to certify the use of best practices. 

393 1. Should EPA consider implementing third-party certification (for certifying reporting, 

394 practices and other aspects) and/or third-party collection of hydraulic fracturing operations in 

395 addition to or in lieu of a mandatory reporting or voluntary disclosure program? 

396 2. What would such a certification program look like? 

397 3. Are there existing programs that already certify best practices? Are they effective? 

398 Are they independent? Could they be improved? How? 

399 4. What should be considered (e.g. standards for third-parties, standards for collecting 

400 chemical information) in implementing a third-party program? 

401 5. How should chemical information be managed by third-parties? Are there specific 

402 roles that third-parties should have in data management? Please explain. 

403 6. How should a third-party certifier be funded? How could perceived or actual bias be 

404 minimized? 

405 E. Reporting Threshold and Frequency of Reporting or Disclosure 

406 EPA is interested in comments regarding the threshold for the size of entities that should 

407 be required or encouraged to report or disclose information on chemical substances and mixtures 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 18 of 25

408 used in hydraulic fracturing and environmental and health data on those substances and mixtures. 

409 EPA is also interested in comments regarding how often reporting or disclosure should take 

410 place: 

411 1. Are there thresholds that might be appropriate to limit reporting by small 

412 manufacturers or processors under either a regulatory or a voluntary program (e.g., the thresholds 

413 that define “small manufacturer” in 40 CFR sections 704.3 and 712.25)? Why? If available, how 

414 would the recommended reporting threshold affect cost to the reporting entity? How might 

415 different reporting thresholds affect the usefulness of the data provided? 

416 2. Given possible changes in the composition of hydraulic fracturing fluids over time and 

417 changes in ownership of a well, how often and when should an entity report information to EPA 

418 or publicly disclose it? 

419 3. What would be the effect of changes in the frequency of reporting and/or disclosure 

420 on the overall cost of reporting or disclosure? What would be the effect of changes in level of 

421 aggregation or other aspects of reporting and/or disclosure? 

422 F. Data Collection Efficiency 

423 EPA believes that any mechanism for reporting and/or disclosure of information on 

424 chemical substances and mixtures should be structured in a manner that minimizes the potential 

425 for duplication and overlap. 

426 1. EPA requests comment on how best to minimize duplicative reporting and/or 

427 disclosure requirements, particularly for companies that may also report to the BLM, state 

428 agencies, and to other parties. For example, should EPA limit its data collection to items not 

429 collected by other parties? How much overlap is acceptable? 

430 2. How can the agency achieve the goal of efficient data collection while also 

431 maximizing transparency and public understanding? 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 19 of 25

432 3. In order to encourage transparency and information sharing while minimizing 

433 duplication, what information collection repository or database should EPA use? Should EPA 

434 develop a repository or use an existing one such as FracFocus (Ref. 7) or data.gov? If an existing 

435 repository is recommended, indicate which repository and why. Are any changes or 

436 enhancements recommended to this existing repository? 

437 4. EPA believes that any TSCA reporting requirements should complement existing 

438 reporting programs and data sources, such as state databases and web sites like FracFocus in 

439 order to avoid duplication. How could this be achieved? 

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

441 EPA is seeking comment on potential options for reporting or disclosure of health and 

442 safety studies for chemical substances and mixtures used in hydraulic fracturing. 

443 TSCA section 8(d) authorizes EPA to require manufacturers, processors, and distributors 

444 of any chemical substance or mixture and persons who propose to manufacture, process, or 

445 distribute in commerce any chemical substance or mixture to submit health and safety studies to 

446 EPA. Examples of health and safety studies are: 

447  Epidemiological or clinical studies. 

448  Studies of occupational exposure. 

449  Health effects studies. 

450  Ecological effects studies. 

451  Assessments of environmental exposure. 

452  Environmental fate studies. 

453  Health and safety studies related to surface or ground water sampling and analyses 

454 when aggregated and analyzed to measure exposure. 

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

[RIN 2070-AJ93] Page 20 of 25

456 One mechanism for the collection of these studies is TSCA section 8(d). Other 

457 mechanisms could include voluntary approaches. EPA is requesting comment on the types of 

458 companies that would report or disclose health and safety studies. EPA also is requesting 

459 comment on whether companies should be required to report studies or encouraged to disclose 

460 studies, or whether a combination of regulatory and voluntary approaches should be used to 

461 obtain health and safety studies. 

462 1. Should all manufacturers (including importers), processors, and distributors provide 

463 lists or copies of health and safety studies or should reporting only be required of some types of 

464 companies? Why or why not? 

465 2. Are there existing mechanisms in place, including non-regulatory mechanisms, for 

466 EPA to obtain these studies? If not, what would be an effective regulatory approach and/or 

467 voluntary mechanism for EPA to obtain these studies? 

468 3. Is there an approach that more effectively encourages further health and safety 

469 studies? 

470 4. Some chemical substances and mixtures used in hydraulic fracturing are more studied 

471 than others. Some are considered to be well-characterized in terms of hazard and exposure 

472 information. If EPA were to require reporting, should EPA limit reporting requirements to the 

473 chemical substances and mixtures that EPA believes are not well-characterized? Why? 

474 5. If a TSCA section 8(d) rule were promulgated, should it require reporting of studies 

475 for all chemical substances and mixtures used in hydraulic fracturing or only a subset? Why? If 

476 only certain chemicals should be included in the rule, which ones should EPA include? 

477 6. Are there particular types of studies that should be required to be submitted or should 

478 all health and safety studies be required to be submitted? Why? 

479 7. Are there studies that are of greater interest if they are conducted by a particular 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 21 of 25

480 entity, e.g., service providers? For example, an assessment of environmental exposure may be 

481 viewed as more important because of the environment that is the focus of the study. 

482 8. Would it be more efficient (timely and cost effective) to submit health and safety 

483 studies to a third-party? Why or why not? If so, why and what type of third-party? 

484 I. Safer Chemicals and Transparency 

485 Incentives and recognition programs could be used to support the development and use of 

486 safer chemicals (both those created deliberately and inadvertently) in hydraulic fracturing. Safer 

487 chemicals are generally less toxic to human health and the environment, and are less persistent 

488 and bioaccumulative than their alternatives. There are a range of EPA programs that support less 

489 toxic chemical usage and management which may serve as models for application to hydraulic 

490 fracturing. A similar program focusing on chemicals used in hydraulic fracturing could speed 

491 adoption by well owners, operators and suppliers of safer chemicals. The program could also 

492 increase public understanding about chemical choice and use in hydraulic fracturing. 

493 EPA would like to determine whether these programs could be used as possible models 

494 for consideration of chemicals and mixtures used in hydraulic fracturing and whether there are 

495 other programs that would be more effective. In order to determine whether replacement 

496 chemicals are safer, it would be important to take into account the effectiveness and potential 

497 associated risks with the alternative chemical. EPA requests comment on strategies for creating 

498 incentives and voluntary approaches for the development and use of safer chemicals. 

499 1. Are there other TSCA sections that could also further support safer chemicals more 

500 effectively? 

501 2. What programs are appropriate to encourage the use of safer chemicals already on the 

502 market? 

503 3. For this industry, are existing programs that encourage the development of safer 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 22 of 25

504 chemicals appropriate? Could EPA change those programs to make them more effective in 

505 inducing well operators to use safer chemicals? How? 

506 V. Statutory and Executive Order Reviews 

507 Under Executive Orders 12866, entitled ‘‘Regulatory Planning and Review’’ (58 FR 

508 51735, October 4, 1993) and 13563, entitled ‘‘Improving Regulation and Regulatory Review’’ 

509 (76 FR 3821, January 21, 2011), this is a “significant regulatory action” because it raises novel 

510 legal and/or policy issues. Accordingly, EPA submitted this action to the Office of Management 

511 and Budget (OMB) for review under these Executive Orders and any changes made in response 

512 to OMB recommendations have been documented in the docket for this action. 

513 Because this document does not impose or propose any requirements, and instead seeks 

514 comments and suggestions for the agency to consider in possibly developing a subsequent 

515 proposed rule, the various other review requirements that apply when an agency imposes 

516 requirements do not apply to this action. Nevertheless, as part of your comments on this ANPR, 

517 you may include any comments or information that could help the agency to assess the potential 

518 impact of a subsequent regulatory action on small entities pursuant to the Regulatory Flexibility 

519 Act (5 U.S.C. 601 et seq.); to consider voluntary consensus standards pursuant to section 12(d) 

520 of the National Technology Transfer and Advancement Act (15 U.S.C. 272 note); to consider 

521 environmental health or safety effects on children pursuant to Executive Order 13045, entitled 

522 ‘‘Protection of Children from Environmental Health Risks and Safety Risks’’ (62 FR 19885, 

523 April 23, 1997); to consider human health or environmental effects on minority or low-income 

524 populations pursuant to Executive Order 12898, entitled ‘‘Federal Actions to Address 

525 Environmental Justice in Minority Populations and Low-Income Populations’’ (59 FR 7629, 

526 February 16, 1994); or to consider potential impacts to state and local governments or tribal 

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

[RIN 2070-AJ93] Page 23 of 25

528 The agency will consider such comments during the development of any subsequent 

529 rulemaking as it takes appropriate steps to address any applicable requirements. 

530 VI. References 

531 The following is a list of the materials that are specifically referenced in this document. 

532 The docket identified under ADDRESSES includes these references and other information 

533 considered by EPA. For assistance, please consult the technical contact listed under FOR 

534 FURTHER INFORMATION CONTACT.

535 1. Toxic Substances Control Act, Section 3, 15 USC 2602. 

536 2. Earthjustice and 114 other organizations. Letter from Deborah Goldberg, Earthjustice 

537 to Wendy Cleland-Hamnett, Director, Office of Pollution Prevention and Toxics. Re: Citizen 

538 Petition Under Toxic Substances Control Act Regarding the Chemical Substances and Mixtures 

539 Used in Oil and Gas Exploration or Production. August 4, 2011. Available on-line at: 

540 http://www.epa.gov/oppt/chemtest/pubs/Section_21_Petition_on_Oil_Gas_Drilling_and_Frackin

541 g_Chemicals8.4.2011.pdf. 

542 3. EPA. Letter from EPA Administrator Lisa P. Jackson to Deborah Goldberg, 

543 Earthjustice, Re: TSCA Section 21 Petition Concerning Chemical Substances and Mixtures Used 

544 in Oil and Gas Exploration or Production. November 2, 2011. Available on-line at: 

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

546 4. EPA. Letter from EPA Administrator Lisa P. Jackson to Deborah Goldberg, 

547 Earthjustice, Re: TSCA Section 21 Petition Concerning Chemical Substances and Mixtures Used 

548 in Oil and Gas Exploration or Production. November 23, 2011. Available on-line at: 

549 http://www.epa.gov/oppt/chemtest/pubs/EPA_Letter_to_Earthjustice_on_TSCA_Petition.pdf.

550 5. EPA. Chemical Substances and Mixtures Used in Oil and Gas Exploration or 

551 Production; TSCA Section 21 Petition Reasons for Agency Response. 78 FR 41768, July 11, 
*** EO 12866 Review Deliberative Draft – Do Not Cite, Quote or Release During the Review *** 

[RIN 2070-AJ93] Page 24 of 25

552 2013. 

553 6. TSCA Statutory Definitions Document. February 11, 2014. 

554 7. FracFocus Chemical Disclosure Registry. Available on-line at: 

555 http://www.fracfocus.org.

556 8. EPA. TSCA New Chemicals Program. Available on-line at: 

557 http://www.epa.gov/oppt/newchems/. 

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

[RIN 2070-AJ93] Page 25 of 25

559 List of Subjects in 40 CFR Chapter 1, Subchapter R

560 Environmental protection, Chemicals, Hazardous substances, Exploration and 

561 production, Hydraulic fracturing, Fracking, Oil and gas, Confidential business information, 

562 Reporting and recordkeeping. 

563 Dated: ____________________ 

564 

565 

566 ________________________________ 

567 Gina McCarthy 

568 Administrator.