28664 Federal Register / Vol. 79, No. 96 / Monday, May 19, 2014 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Chapter I 

[EPA–HQ–OPPT–2011–1019; FRL–9909–13] 

RIN 2070–AJ93 

Hydraulic Fracturing Chemicals and 

Mixtures 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: In its response to a citizen 

petition submitted under section 21 of 

the Toxic Substances Control Act 

(TSCA), EPA indicated that as a first 

step, it would convene a stakeholder 

process to develop an approach to 

obtain information on chemical 

substances and mixtures used in 

hydraulic fracturing. To gather 

information to inform EPA’s proposal, 

the Agency is issuing this advance 

notice of proposed rulemaking (ANPR) 

and initiating a public participation 

process to seek comment on the 

information that should be reported or 

disclosed for hydraulic fracturing 

chemical substances and mixtures and 

the mechanism for obtaining this 

information. This mechanism could be 

regulatory (under TSCA section 8(a) 

and/or section 8(d)), voluntary, or a 

combination of both and could include 

best management practices, third-party 

certification and collection, and 

incentives for disclosure of this 

information. In addition, the Agency is 

seeking comment on ways of 

minimizing reporting burdens and costs 

and of avoiding the duplication of state 

and other federal agency information 

collections, while at the same time 

maximizing data available for EPA risk 

characterization, external transparency, 

and public understanding. Also, EPA is 

soliciting comments on incentives and 

recognition programs that could be used 

to support the development and use of 

safer chemicals in hydraulic fracturing. 

DATES: Comments must be received on 

or before August 18, 2014. 

ADDRESSES: Submit your comments, 

identified by docket identification (ID) 

number EPA–HQ–OPPT–2011–1019, by 

one of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Mail: Document Control Office 

(7407M), Office of Pollution Prevention 

and Toxics (OPPT), Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460–0001. 

• Hand Delivery: To make special 

arrangements for hand delivery or 

delivery of boxed information, please 

follow the instructions at http://

www.epa.gov/dockets/contacts.html. 

Additional instructions on 

commenting or visiting the docket, 

along with more information about 

dockets generally, is available at 

http://www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

For technical information contact: 

Mark Seltzer, Chemical Control Division 

(7405M), Office of Pollution Prevention 

and Toxics, Environmental Protection 

Agency, 1200 Pennsylvania Ave. NW., 

Washington, DC 20460–0001; telephone 

number: (202) 564–2901; email address: 

seltzer.mark@epa.gov. 

For general information contact: The 

TSCA-Hotline, ABVI-Goodwill, 422 

South Clinton Ave., Rochester, NY 

14620; telephone number: (202) 554– 

1404; email address: TSCA-Hotline@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

This action is directed to the public 

in general. This action, however, may be 

of interest to you if you manufacture 

(including import), process, or 

distribute chemical substances or 

mixtures (Ref. 1) used in any type or 

method of hydraulic fracturing. This 

may include businesses that fall under 

North American Industry Classification 

System (NAICS) codes 2111 (oil and gas 

extraction) and/or 2131 (support 

activities for mining). EPA anticipates 

that this ANPR may also be of interest 

to states, tribes, and other industries. 

Since additional entities may also be 

interested, the Agency has not 

attempted to describe all the specific 

entities that may be interested in this 

action. 

B. What should I consider as I prepare 

my comments for EPA? 

1. Submitting confidential business 

information (CBI). Do not submit this 

information to EPA through 

regulations.gov or email. Clearly mark 

the part or all of the information that 

you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

i. Identify the document by docket ID 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

ii. Follow directions. The Agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

iii. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

iv. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

v. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. Likewise, 

if you estimate the universe of affected 

reporters, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

vi. Provide specific examples to 

illustrate your concerns and suggest 

alternatives. 

vii. Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

viii. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

EPA received a petition from 

Earthjustice and 114 other groups on 

August 4, 2011, requesting that EPA 

issue TSCA section 4 and TSCA section 

8 rules requiring toxicity testing of 

chemicals and mixtures used in oil and 

gas exploration and production; 

reporting to EPA, among other things, 

the identity of those chemicals and 

mixtures; and submitting to EPA health 

and safety studies on the chemicals and 

mixtures (Ref. 2). On November 2, 2011, 

EPA provided an initial response to the 

petition (Ref. 3). In that response, EPA 

denied the TSCA section 4 request for 

issuance of a test rule because the 

petition did not set forth sufficient facts 

to conclude that it was ‘‘necessary to 

issue’’ the requested TSCA section 4 

rule, as required by TSCA section 

21(b)(1). On November 23, 2011, EPA 

granted in part and denied in part the 

TSCA section 8(a) and section 8(d) 

requests by limiting the scope from 

chemicals and mixtures used in all 

processes of oil and gas exploration and 

production to chemical substances and 

mixtures used in hydraulic fracturing 

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(Refs. 4 and 5). EPA published a 

document with the Agency’s rationale 

for its response to the petition in the 

Federal Register of July 11, 2013 (Ref. 

5). To facilitate public comment, the 

Agency stated its intent to publish an 

ANPR to identify key issues for further 

discussion and analysis. 

EPA maintains continuing 

coordination with its Federal partners in 

planning information reporting rules 

that will complement the Bureau of 

Land Management’s (BLM) proposed 

regulation: Oil and Gas; Hydraulic 

Fracturing on Federal and Indian Lands 

(78 FR 31636, May 24, 2013). BLM 

subsequently issued a supplemental 

proposal and extension of comment 

period for that proposed rule (78 FR 

34611, June 10, 2013). The intent of 

these dialogues is to ensure both EPA’s 

and BLM’s efforts provide useful 

information for assessment and 

disclosure purposes, while not overly 

burdening reporting entities. 

A. What action is the Agency taking? 

With this ANPR, EPA is initiating a 

stakeholder process to request input on 

various aspects of obtaining information 

on chemical substances and mixtures 

used in hydraulic fracturing for oil and 

gas exploration and production to 

further the purposes of TSCA (TSCA 

section 2 sets forth the findings, policy, 

and intent of Congress in enacting 

TSCA) and other federal government 

objectives that can be informed through 

this process. As part of this effort, EPA 

seeks input on appropriate disclosure to 

ensure that information about the 

chemicals and mixtures used in 

hydraulic fracturing activities is 

provided to the public in a transparent 

fashion. These activities include the 

injection of water, chemicals, proppant, 

and/or tracers to prepare geologic 

formations for hydraulic fracturing, 

complete a hydraulic fracturing 

stimulation stage, evaluate the extent of 

resulting fractures, or ensure future 

ability to continue enhancement of 

production through stimulation by 

hydraulic fracturing. During each 

hydraulic fracturing stimulation stage, 

pressurized fluids containing carrier 

fluids such as water or gas and any 

combination of proppant and chemicals 

are injected into wells to fracture 

portions of the formation surrounding a 

selected well section. As discussed in 

more detail in Unit IV., EPA is 

requesting comment on the information 

that should be obtained or disclosed and 

the mechanism for obtaining or 

disclosing this information about 

chemicals and mixtures used in 

hydraulic fracturing. This mechanism 

could be regulatory (under TSCA 

section 8(a) and/or section 8(d)), 

voluntary (e.g., under the Pollution 

Prevention Act (PPA) (42 U.S.C. 13101 

et seq.)), or a combination of both. EPA 

is also seeking comment on best 

management practices for the 

generation, collection, reporting and/or 

disclosure of public health and 

environmental information from or by 

companies that manufacture, process, or 

use chemical substances or mixtures in 

hydraulic fracturing activities—that is, 

practices or operations that can be 

implemented and verified toward 

achieving protection of public health 

and the environment—and whether 

voluntary third-party certification, and 

incentives for disclosure could be 

valuable tools for improving chemical 

safety. In addition, the Agency is 

seeking comment on ways to minimize 

reporting burdens and costs, avoid 

duplication of efforts, and maximize 

transparency and public understanding. 

Finally, EPA is soliciting comments on 

incentives and recognition programs 

that could be used to support the 

development and use of safer chemicals 

in hydraulic fracturing. 

B. What is the Agency’s authority for 

this action? 

TSCA section 8(a) (15 U.S.C. 2607(a)) 

authorizes EPA to promulgate rules 

under which manufacturers (including 

importers) and processors of chemical 

substances must maintain records and 

submit information as the EPA 

Administrator may reasonably require. 

TSCA section 8(a) also authorizes EPA 

to promulgate rules under which 

manufacturers and processors of 

mixtures must maintain records and 

submit information to the extent the 

EPA Administrator determines the 

maintenance of records or submission of 

reports, or both, is necessary for the 

effective enforcement of TSCA. TSCA 

section 8(a) generally excludes small 

manufacturers and processors of 

chemical substances or mixtures from 

the reporting requirements (see 15 

U.S.C. 2507(a)). This general exclusion 

has been codified at 40 CFR 704.5 and 

712.25. However, EPA is authorized by 

TSCA section 8(a)(3)(A)(ii) to require 

TSCA section 8(a) reporting from small 

manufacturers and processors with 

respect to any chemical substance or 

mixture that is the subject of a rule 

proposed or promulgated under TSCA 

section 4, 5(b)(4), or 6, or that is the 

subject of an order in effect under TSCA 

section 5(e), or that is the subject of 

relief granted pursuant to a civil action 

under TSCA section 5 or 7. TSCA 

section 8(a) also notes that, to the extent 

feasible, the EPA Administrator must 

not require reporting under TSCA 

section 8(a)(1) that is unnecessary or 

duplicative. 

TSCA section 8(d) (15 U.S.C. 2607(d)) 

authorizes EPA to require the 

submission of lists of health and safety 

studies conducted or initiated by or for, 

or known to or reasonably ascertainable 

by manufacturers, processors, and 

distributors of (and any person who 

proposes to manufacture, process, or 

distribute) any chemical substance or 

mixture. Certain types or categories of 

studies may be excluded ‘‘if the 

Administrator finds that submission of 

lists of such studies are unnecessary to 

carry out the purposes of [TSCA]’’ (see 

TSCA section 8(d)(1)). TSCA section 

8(d) also authorizes EPA to require the 

submission of copies of studies on these 

lists or copies of studies that are 

otherwise known by the person 

submitting the list. 

The Pollution Prevention Act (PPA) 

(42 U.S.C. 13101 et seq.) makes 

pollution prevention the national policy 

of the United States. The PPA identifies 

an environmental management 

hierarchy in which pollution ‘‘should be 

prevented or reduced whenever feasible; 

pollution that cannot be prevented 

should be recycled in an 

environmentally safe manner, whenever 

feasible; pollution that cannot be 

prevented or recycled should be treated 

in an environmentally safe manner 

whenever feasible; and disposal or 

release into the environment should be 

employed only as a last resort . . .’’ (42 

U.S.C. 13103). Among other 

requirements, the PPA directs EPA to 

develop improved methods of 

coordinating, streamlining and assuring 

public access to data collected under 

Federal environmental statutes; 

facilitate the adoption of sourcereduction techniques by businesses; and 

establish an annual awards program to 

recognize a company or companies that 

operate outstanding or innovative 

source reduction programs. 

III. Overview of Information Collection 

Authority Under Sections 8(a) and 8(d) 

of TSCA 

A. TSCA Section 8(a) 

TSCA section 8(a) gives EPA authority 

to require, by rulemaking, chemical 

manufacturers and processors to 

maintain records and submit to EPA 

such reports as EPA may reasonably 

require, including reports concerning 

the following, insofar as it is known to 

or reasonably ascertainable by the 

person making the report: 

• The common or trade name, the 

chemical identity, and the molecular 

structure of each chemical substance or 

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mixture for which such a report is 

required. 

• The categories or proposed 

categories of use of each chemical 

substance or mixture. 

• The total amount of each chemical 

substance or mixture manufactured or 

processed, reasonable estimates of the 

total amount to be manufactured or 

processed, the amount manufactured or 

processed for each of its categories of 

use, and reasonable estimates of the 

amount to be manufactured or 

processed for each of its categories of 

use or proposed categories of use. 

• A description of the byproducts 

resulting from the manufacture, 

processing, use, or disposal of each 

chemical substance or mixture. 

• All existing data concerning the 

environmental and health effects of each 

chemical substance or mixture. 

• The number of individuals exposed, 

and reasonable estimates of the number 

who will be exposed, to each chemical 

substance or mixture in their places of 

employment and the duration of such 

exposure. 

• The manner or method of disposal 

of each chemical substance or mixture, 

and any subsequent changes to such 

manner or method. 

B. TSCA Section 8(d) 

TSCA section 8(d) authorizes EPA to 

require manufacturers, processors, and 

distributors of any chemical substance 

or mixture and persons who propose to 

manufacture, process, or distribute in 

commerce any chemical substance or 

mixture to submit health and safety 

studies to EPA. Examples of health and 

safety studies can be found in 40 CFR 

716.3, and include: 

• Epidemiological or clinical studies. 

• Studies of occupational exposure. 

• Health effects studies. 

• Ecological effects studies. 

• Assessments of environmental 

exposure. 

• Environmental fate studies. 

• Health and safety studies related to 

surface or ground water sampling and 

analyses that are aggregated and 

analyzed to measure exposure. 

IV. Request for Comment 

EPA is requesting comment on the 

design and scope of potential regulatory 

or voluntary approaches, or 

combination of both approaches, to 

obtain information on chemical 

substances and mixtures used in 

hydraulic fracturing. EPA invites 

comments on all aspects of this ANPR, 

including the description of hydraulic 

fracturing activities presented in Unit 

II.A. Comments should provide enough 

detail and contain sufficient supporting 

information in order for the Agency to 

understand the issues raised and give 

them the fullest consideration. 

Comments should include alternatives, 

rationales, benefits, technological and 

economic feasibility (including costs), 

and supporting data. Supporting 

information should include any 

information that substantiates your 

conclusions and recommendations, 

including, but not limited to: 

Experiences, data, analyses, studies and 

articles, and standard professional 

practices. If referring to a particular well 

site as an example, please identify the 

company name of the well site operator, 

well name, latitude and longitude 

coordinates and American Petroleum 

Institute (API) identification number, if 

available. 

A. Overall Approach To Reporting and 

Disclosure of Chemical Substances and 

Mixtures Used in Hydraulic Fracturing 

In this ANPR, EPA is seeking 

comment on what information should 

be reported to EPA (or through a CBI 

cleared third-party certifier) or disclosed 

publically (by EPA) regarding the 

identity, quantities, types and 

circumstances of uses of chemical 

substances and mixtures used in 

hydraulic fracturing, as well as what 

types of health and safety studies 

should be reported or disclosed. EPA is 

seeking comment on whether and how 

data that are claimed to be trade secrets, 

or CBI, could be reported to EPA (or a 

third-party certifier) and then aggregated 

and disclosed while protecting the 

identities of individual products and 

firms. EPA is also requesting comment 

on the appropriate mix of voluntary 

disclosure and/or regulatory reporting 

mechanisms. The specific types of 

information that could be reported or 

disclosed are discussed in Units IV.C. 

and IV.G. It should be noted that TSCA 

section 8(e) requires manufacturers, 

importers, processors, and distributors 

to provide EPA with information on any 

of their chemical substances or mixtures 

that reasonably supports the conclusion 

that such substance or mixture presents 

a substantial risk of injury to health or 

the environment. 

EPA is requesting comment on the 

following questions: 

1. Should all information be required 

to be reported or should there be a 

voluntary mechanism for some or all 

information? 

2. Would a combination of mandatory 

reporting and voluntary disclosure be 

effective? If so, what would that 

combination consist of? Why? 

3. What types of information, if any, 

should be required to be reported? Why? 

4. How could any required reporting 

activities be designed to better facilitate 

compliance? 

5. What types of information, if any, 

should be reported and/or disclosed 

voluntarily? Why? 

6. What are the best management 

practices for the generation, collection, 

reporting and/or disclosure of 

information from or by companies? 

7. Are there particular systems in 

place that already use these best 

management practices? Please identify 

these systems. 

8. To what extent are these best 

management practices widely adopted? 

Please provide evidence regarding the 

extent of use of best management 

practices. 

9. How could incentives be structured 

to ensure effective voluntary disclosure 

of information on chemical substances 

and mixtures used in hydraulic 

fracturing? 

10. Are there incentives that could be 

used in combination with regulatory 

requirements for information disclosure 

to promote practices that go beyond 

compliance (e.g., incentives that 

encourage reporting in addition to that 

required by regulation)? 

11. What information collection tools 

and resources are available to support 

and promote safer chemical use and 

other sustainable practices (e.g., some 

form of cradle-to-grave chemical 

management)? Please explain. 

12. What factors should be considered 

for distinguishing among different types 

of companies for the purpose of 

incentives? 

13. What information collection tools 

and resources are available to support, 

incentivize, and promote safe and 

sustainable practices? Please explain. 

14. How could collected information 

be used to better inform safe and 

sustainable practices? For example, 

would providing information or 

guidance on improved chemical use 

across different types of firms involved 

in hydraulic fracturing better inform 

safe and sustainable practices? 

15. What mechanisms could be 

developed to make information that is 

reported to EPA publically disclosed 

and available? 

16. How could information reported 

and/or disclosed under any such 

mechanism be used to better inform 

research and development of chemical 

substances and mixtures used in 

hydraulic fracturing? 

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B. Who should report or disclose 

information on chemical substances 

and mixtures used in hydraulic 

fracturing? 

TSCA section 8(a) gives EPA authority 

to require, by rulemaking, chemical 

manufacturers and processors to 

maintain records and submit to EPA 

reports about chemical substances and 

mixtures, as well as environmental and 

health data on those substances and 

mixtures. The hydraulic fracturing 

industry includes a variety of 

companies that could be subject to 

reporting under TSCA section 8(a). 

These companies could include 

chemical manufacturers, chemical 

suppliers who engage in processing, 

service providers mixing chemicals on 

site to create the hydraulic fracturing 

fluids, and service providers responsible 

for injecting the hydraulic fracturing 

fluid into the well to fracture the 

formation. EPA is requesting comment 

on whether, in the context of a potential 

reporting and/or disclosure program, all 

or any companies should be required to 

report or whether a specific type or 

types of company (e.g., chemical 

supplier) should be required to report 

and other types (e.g., service provider) 

be encouraged to report voluntarily. 

1. If any companies are required to 

report, should different types of 

companies be required to report 

different data elements? Please explain. 

2. Should manufacturers (including 

importers), processors, or both be 

required to report under TSCA section 

8(a)? Why or why not? 

3. Are there additional NAICS codes 

in addition to 2111 (oil and gas 

extraction) and 2131 (support activities 

for mining) that would need to be 

included in order to cover chemical 

manufacturers (including importers) 

and processors in a potential reporting 

and/or disclosure program? 

4. In what ways do the 

responsibilities of manufacturers and 

processors (Ref. 6) overlap? What 

activities associated with hydraulic 

fracturing are carried out by the well 

operator at the well site? EPA 

understands that service providers or 

well operators often process chemicals 

at the drilling site. 

5. Would manufacturers (including 

importers), service providers, well 

operators, or all three, know how a 

chemical substance or mixture is used at 

well sites? If all types of firms have this 

information, which type, if any, should 

be required to report? If neither well 

operators, nor service providers, nor 

manufacturers (including anyone who 

imports chemicals or otherwise 

undertakes activities that meet the 

definition of ‘‘manufacture’’ at 40 CFR 

704.3) know how a chemical is used at 

well sites, who would know and how 

might that information be obtained? 

6. If voluntary mechanisms are used 

for obtaining information, what 

mechanisms (e.g., incentive programs) 

should EPA consider in order to 

encourage consistent reporting and/or 

disclosure from different types of 

companies? Would some mechanisms 

be more effective for one type of 

company than another? 

7. Should there be different incentives 

for different types of companies (e.g., 

manufacturers vs. processors)? 

8. What information collection tools 

and resources are available to support 

and promote safe and sustainable 

practices? Please explain. 

C. Scope of Reporting or Disclosure of 

Information on Chemical Substances 

and Mixtures Used in Hydraulic 

Fracturing 

In this ANPR, EPA is seeking 

comment on the information that should 

be reported or disclosed regarding 

chemical substances and mixtures used 

in hydraulic fracturing. EPA is 

exploring various regulatory 

approaches, voluntary approaches or a 

combination of both for obtaining this 

information. 

As described in Unit III.A., TSCA 

section 8(a) gives EPA authority to 

require, by rulemaking, chemical 

manufacturers and processors to 

maintain records and submit to EPA 

such reports as EPA may reasonably 

require. EPA expects that data obtained 

could be aggregated to provide a 

national list of the chemical substances 

and mixtures used in hydraulic 

fracturing, providing the Agency with 

the ability to determine which 

chemicals are used most frequently. For 

chemicals that have not been previously 

well-characterized in terms of their 

chemical, physical, and toxicological 

properties, EPA may conduct research 

to better understand these properties in 

order to perform a basic risk 

characterization. Information that could 

be required from manufacturers 

(including importers) and processors 

under a potential reporting program 

could include: 

1. Basic company information (i.e., 

company name, mailing address, Web 

site, and technical contact information). 

2. Steps involved in processing 

chemicals or mixtures on site before 

injection. Typical composition and 

performance standard of hydraulic 

fracturing fluid as an end use product, 

before injection. 

3. Steps involved in processing 

chemicals or mixtures for reuse, 

recycling, and/or reprocessing in the 

hydraulic fracturing operation. 

4. Hydraulic fracturing fluid 

composition: 

i. Common name or trade name of 

each chemical product in the hydraulic 

fracturing fluid and a description of 

each product’s function. 

ii. Chemical identity (chemical name 

and Chemical Abstracts Service Registry 

Number) of each chemical substance in 

each product. 

iii. Total volume of the carrier fluid 

and percentage of the carrier fluid that 

makes up the total hydraulic fracturing 

fluid (e.g., water volume and percentage 

of water in the hydraulic fracturing 

fluid). 

iv. Actual amount of each chemical 

substance or product in the hydraulic 

fracturing fluid in order to understand 

the loading (e.g., mass or volume). 

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

oil). 

6. Frequency of use of the chemical 

substance or mixture for hydraulic 

fracturing (e.g., number of times or per 

fracture stage or number of wells). 

7. Number of workers exposed or 

likely to be exposed to the chemical 

substance or mixture. 

8. All existing data concerning the 

human and environmental health effects 

of the chemical substance or mixture. 

9. Some chemical substances and 

mixtures used in hydraulic fracturing 

may react to create other chemical 

substances and mixtures as products 

within an on-site mixing apparatus or in 

the well that is being fractured. EPA is 

requesting comments on which 

reporting elements should be included: 

i. If EPA were to require reporting, 

how should EPA address chemical 

substances and mixtures which are 

formed on site? Why? 

ii. Is there other information 

obtainable under TSCA section 8(a) that 

should be included in a proposed TSCA 

section 8(a) rule? What are the chemical 

safety benefits (e.g., potential reduction 

of risk to human health and 

environment) of obtaining this 

information? Explain. 

iii. Should EPA consider including 

reporting on any combination of water 

and/or chemicals introduced or 

intended to be introduced into an oil or 

gas well for the purpose of maintaining 

or improving the function and 

productivity of the well, including 

recovery methods, (e.g., acid treatments, 

corrosion inhibitors, scale reducers, 

biocides)? Why or why not? EPA is 

interested in information regarding the 

frequency, duration, concentration, and 

volume of use of such chemicals or 

chemical mixtures to enhance the 

Agency’s understanding of well 

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maintenance practices, in order to 

evaluate the need for additional 

disclosure. 

10. While EPA could require 

manufacturers and processors to report 

this information, the Agency could also 

encourage companies engaged in 

hydraulic fracturing to voluntarily 

disclose it. EPA is requesting comments 

on reporting elements which should be 

included: 

i. Which elements (as discussed 

earlier in Unit IV.C.), if any, may benefit 

from being proposed as part of a TSCA 

section 8(a) rule? Which elements, if 

any, may benefit better from being 

reported and/or disclosed under a 

voluntary program? 

ii. Are there data elements (from those 

discussed earlier in Unit IV.C.) for 

which a hybridized reporting and/or 

disclosure system (e.g., some regulatory 

elements, some voluntary elements) 

would be more efficient or beneficial? 

D. Use of Third-Parties 

EPA is requesting comments on the 

use of third-parties for the collection of 

information on chemical substances 

used in hydraulic fracturing and/or to 

certify the use of best practices. 

1. Should EPA consider implementing 

third-party certification (for certifying 

reporting, practices and other aspects) 

and/or third-party collection of 

information about hydraulic fracturing 

operations in addition to or in lieu of a 

mandatory reporting or voluntary 

disclosure program? 

2. What would such a certification 

program look like? 

3. Are there existing programs that 

already certify best practices? Are they 

effective? Are they independent? Could 

they be improved? How? 

4. What should be considered (e.g. 

standards for third-parties, standards for 

collecting chemical information, costs) 

in implementing a third-party program? 

5. How should chemical information 

be managed by third-parties? Are there 

specific roles that third-parties should 

have in data management? Please 

explain. 

6. How should a third-party certifier 

be funded? How could perceived or 

actual bias be minimized? 

E. Reporting Threshold and Frequency 

of Reporting or Disclosure 

EPA is interested in comments 

regarding the threshold for the size of 

entities that should be required or 

encouraged to report or disclose 

information on chemical substances and 

mixtures used in hydraulic fracturing 

and environmental and health data on 

those substances and mixtures. EPA is 

also interested in comments regarding 

how often reporting or disclosure 

should take place: 

1. Are there thresholds that might be 

appropriate to limit reporting by small 

manufacturers or processors under 

either a regulatory or a voluntary 

program (e.g., the thresholds that define 

‘‘small manufacturer’’ in 40 CFR 704.3 

and 712.25)? Why? If available, how 

would the recommended reporting 

threshold affect cost to the reporting 

entity? How might different reporting 

thresholds affect the usefulness of the 

data provided? 

2. Given possible changes in the 

composition of hydraulic fracturing 

fluids over time and changes in 

ownership of a well, how often and 

when should an entity report 

information to EPA or publicly disclose 

it? 

3. What would be the effect of 

changes in the frequency of reporting 

and/or disclosure on the overall cost of 

reporting or disclosure? What would be 

the effect of changes in level of 

aggregation or other aspects of reporting 

and/or disclosure? 

F. Data Collection Efficiency 

EPA believes that any mechanism for 

reporting and/or disclosure of 

information on chemical substances and 

mixtures should be structured in a 

manner that minimizes the potential for 

duplication and overlap. 

1. EPA requests comment on how best 

to minimize duplicative reporting and/ 

or disclosure requirements, particularly 

for companies that may also report to 

the BLM, state agencies, and to other 

parties. For example, should EPA limit 

its data collection to items not collected 

by other parties? How much overlap is 

acceptable? 

2. How can the Agency achieve the 

goal of efficient data collection while 

also maximizing transparency and 

public understanding? 

3. In order to encourage transparency 

and information sharing while 

minimizing duplication, what 

information collection repository or 

database should EPA use? Should EPA 

develop a repository or use an existing 

one such as FracFocus (Ref. 7) or 

http://www.data.gov? If an existing 

repository is recommended, indicate 

which repository and why. Are any 

changes or enhancements recommended 

to this existing repository? 

4. EPA believes that any TSCA 

reporting requirements should 

complement existing reporting programs 

and data sources, such as state databases 

and Web sites like FracFocus in order to 

avoid duplication. How could this be 

achieved? 

G. Health and Safety Studies of 

Chemicals and Mixtures Used in 

Hydraulic Fracturing 

EPA is seeking comment on potential 

options for reporting or disclosure of 

health and safety studies for chemical 

substances and mixtures used in 

hydraulic fracturing. 

As described in Unit III.B., TSCA 

section 8(d) authorizes EPA to require 

manufacturers, processors, and 

distributors of any chemical substance 

or mixture and persons who propose to 

manufacture, process, or distribute in 

commerce any chemical substance or 

mixture to submit health and safety 

studies to EPA. One mechanism for the 

collection of these studies is TSCA 

section 8(d). Other mechanisms could 

include voluntary approaches. EPA is 

requesting comment on the types of 

companies that would report or disclose 

health and safety studies. EPA also is 

requesting comment on whether 

companies should be required to report 

studies or be encouraged to disclose 

studies, or whether a combination of 

regulatory and voluntary approaches 

should be used to obtain health and 

safety studies. 

1. Should all manufacturers 

(including importers), processors, and 

distributors provide lists or copies of 

health and safety studies or should 

reporting only be required of some types 

of companies? Why or why not? 

2. Are there existing mechanisms in 

place, including non-regulatory 

mechanisms, for EPA to obtain these 

studies? If not, what would be an 

effective regulatory approach and/or 

voluntary mechanism for EPA to obtain 

these studies? 

3. Is there an approach that more 

effectively encourages further health 

and safety studies? 

4. Some chemical substances and 

mixtures used in hydraulic fracturing 

are more studied than others. Some are 

considered to be well-characterized in 

terms of hazard and exposure 

information. If EPA were to require 

reporting, should EPA limit reporting 

requirements to the chemical substances 

and mixtures that EPA believes are not 

well-characterized? Why? 

5. If a TSCA section 8(d) rule were 

promulgated, should it require reporting 

of studies for all chemical substances 

and mixtures used in hydraulic 

fracturing or only a subset? Why? If only 

certain chemicals should be included in 

the rule, which ones should EPA 

include? 

6. Are there particular types of studies 

that should be required to be submitted 

or should all health and safety studies 

be required to be submitted? Why? 

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Federal Register / Vol. 79, No. 96 / Monday, May 19, 2014 / Proposed Rules 28669 

7. Are there studies that are of greater 

interest if they are conducted by a 

particular entity, e.g., service providers? 

For example, an assessment of 

environmental exposure may be viewed 

as more important because of the 

environment that is the focus of the 

study. 

8. Would it be more efficient (timely 

and cost effective) to submit health and 

safety studies to a third-party? Why or 

why not? If so, why and what type of 

third-party? 

H. Safer Chemicals and Transparency 

Incentives and recognition programs 

could be used to support the 

development and use of safer chemicals 

(both those created deliberately and 

inadvertently) in hydraulic fracturing. 

Safer chemicals are generally less toxic 

to human health and the environment, 

and are less persistent and 

bioaccumulative than their alternatives. 

Under an EPA-sponsored voluntary 

initiative, EPA could provide resources 

and recognition for companies 

committed to promoting and using safe 

and sustainable practices. Such a 

voluntary program could help 

companies meet corporate sustainability 

goals by providing the means to, and an 

objective measure of, environmental 

stewardship. Information that could be 

collected or disclosed under such a 

voluntary program could be used to 

verify a company’s eligibility for award 

or recognition in relation to identified 

measures and goals. 

There are existing programs that 

encourage the development of safer 

chemicals (e.g., the Green Chemistry 

program and the Sustainable Futures 

program) or the use of safer substitutes 

(e.g., Design for the Environment) which 

may serve as models for application to 

hydraulic fracturing. A similar program 

focusing on chemicals used in hydraulic 

fracturing could speed adoption by well 

owners, operators and suppliers of safer 

chemicals. The program could also 

increase public understanding about 

chemical choice and use in hydraulic 

fracturing. 

EPA would like to determine whether 

these programs could be used as 

possible models for consideration of 

chemicals and mixtures used in 

hydraulic fracturing and whether there 

are other programs that would be more 

effective. In order to determine whether 

replacement chemicals are safer, it 

would be important to take into account 

the effectiveness and potential 

associated risks with the alternative 

chemical. EPA requests comment on 

strategies for creating incentives and 

voluntary approaches for the 

development and use of safer chemicals. 

1. Are there other TSCA sections that 

could also further support the use and 

development of safer chemicals more 

effectively? 

2. What programs are appropriate to 

encourage the use of safer chemicals 

already on the market? 

3. For this industry, are existing 

programs that encourage the 

development of safer chemicals 

appropriate? Could EPA change those 

programs to make them more effective 

in inducing well operators to use safer 

chemicals? How? 

V. References 

The following is a list of the materials 

that are specifically referenced in this 

document. The docket identified under 

ADDRESSES includes these references 

and other information considered by 

EPA. For assistance, please consult the 

technical person listed under FOR

FURTHER INFORMATION CONTACT. 

1. Toxic Substances Control Act, section 3 

(15 U.S.C. 2602). 

2. Earthjustice and 114 other organizations. 

Letter from Deborah Goldberg, 

Earthjustice to Wendy Cleland-Hamnett, 

Director, Office of Pollution Prevention 

and Toxics. Re: Citizen Petition Under 

Toxic Substances Control Act Regarding 

the Chemical Substances and Mixtures 

Used in Oil and Gas Exploration or 

Production. August 4, 2011. Available 

on-line at: http://www.epa.gov/oppt/

chemtest/pubs/Section_21_Petition_on_

Oil_Gas_Drilling_and_Fracking_

Chemicals8.4.2011.pdf. 

3. EPA. Letter from EPA Assistant 

Administrator Steven A. Owens to 

Deborah Goldberg, Earthjustice, Re: 

TSCA Section 21 Petition Concerning 

Chemical Substances and Mixtures Used 

in Oil and Gas Exploration or 

Production. November 2, 2011. Available 

on-line at: http://www.epa.gov/oppt/

chemtest/pubs/

SO.Earthjustice.Response.11.2.pdf. 

4. EPA. Letter from Assistant Administrator 

Steven A. Owens to Deborah Goldberg, 

Earthjustice, Re: TSCA Section 21 

Petition Concerning Chemical 

Substances and Mixtures Used in Oil 

and Gas Exploration or Production. 

November 23, 2011. Available on-line at: 

http://www.epa.gov/oppt/chemtest/

pubs/EPA_Letter_to_Earthjustice_on_

TSCA_Petition.pdf. 

5. EPA. Chemical Substances and Mixtures 

Used in Oil and Gas Exploration or 

Production; TSCA Section 21 Petition 

Reasons for Agency Response. Federal 

Register (78 FR 41768, July 11, 2013) 

(FRL–9339–4). 

6. TSCA Statutory Definitions Document. 

February 11, 2014. 

7. FracFocus Chemical Disclosure Registry. 

Available on-line at: http://

www.fracfocus.org. 

VI. Statutory and Executive Order 

Reviews 

Under Executive Orders 12866, 

entitled ‘‘Regulatory Planning and 

Review’’ (58 FR 51735, October 4, 1993) 

and 13563, entitled ‘‘Improving 

Regulation and Regulatory Review’’ (76 

FR 3821, January 21, 2011), this is a 

‘‘significant regulatory action’’ because 

it raises novel legal and/or policy issues. 

Accordingly, EPA submitted this action 

to the Office of Management and Budget 

(OMB) for review under these Executive 

Orders and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

Because this document does not 

impose or propose any requirements, 

and instead seeks comments and 

suggestions for the Agency to consider 

in possibly developing a subsequent 

proposed rule, the various other review 

requirements that apply when an agency 

imposes requirements do not apply to 

this action. Nevertheless, as part of your 

comments on this ANPR, you may 

include any comments or information 

that could help the Agency to assess the 

potential impact of a subsequent 

regulatory action on small entities 

pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.); to consider 

voluntary consensus standards pursuant 

to section 12(d) of the National 

Technology Transfer and Advancement 

Act (15 U.S.C. 272 note); to consider 

environmental health or safety effects 

on children pursuant to Executive Order 

13045, entitled ‘‘Protection of Children 

from Environmental Health Risks and 

Safety Risks’’ (62 FR 19885, April 23, 

1997); to consider human health or 

environmental effects on minority or 

low-income populations pursuant to 

Executive Order 12898, entitled 

‘‘Federal Actions to Address 

Environmental Justice in Minority 

Populations and Low-Income 

Populations’’ (59 FR 7629, February 16, 

1994); or to consider potential impacts 

to state and local governments or tribal 

governments. 

The Agency will consider such 

comments during the development of 

any subsequent rulemaking as it takes 

appropriate steps to address any 

applicable requirements. 

List of Subjects in 40 CFR Chapter I 

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28670 Federal Register / Vol. 79, No. 96 / Monday, May 19, 2014 / Proposed Rules 

Environmental protection, Chemicals, 

Confidential business information, 

Exploration and production, Fracking, 

Hazardous substances, Hydraulic 

fracturing, Oil and gas, Reporting and 

recordkeeping. 

Dated: May 9, 2014. 

Gina McCarthy, 

Administrator. 

[FR Doc. 2014–11501 Filed 5–16–14; 8:45 am] 

BILLING CODE 6560–50–P 

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