Message Information 

Date 12/18/2012 02:23 PM 

From Carol Montoya <cmontoya@marcelIuscoalition.org > 

To LisaP Jackson/DC/USEPA/US@EPA 

Kathryn Kiaber <kklaber@marcelluscoalition.org >; Andrew Paterson 

<apaterson@marcelluscoalition.org > 

MSC Response to Petition to Add the Oil and Gas Extraction Industry, 

Subject Standard Industrial Classification Code 13, to the List of Facilities Required to 

Report under the Toxics Release Inventory

I-ri 

Sent on behalf of Kathryn Z. Kiaber, President

IVI C 

J-H rn 

____________ rri 

Kathryn Z. Kiaber 

President 

24 Summit Park Drive, 2nd Fl. 

Pittsburgh, PA 15275 

Office: 412.706.5160, Ext. 102 

Fax: 412.706.5170 

Email address kklabermarcelluscoalition.org

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MARCELLUS 

SHALE COALITION" 

Hon. Lisa Jackson, Administrator 

U.S. Environmental Protection Agency Headquarters 

Ariel Rios Building 

1200 Pennsylvania Ave., N.W. 

Mail Code 1101A 

Washington, DC 20460 

Re: Marcellus Shale Coalition Response to Petition to Add the Oil and Gas Extraction 

Industry, Standard Industrial Classification Code 13, to the List of Facilities 

Required to Report under the Toxics Release Inventory 

Dear Administrator Jackson, 

On October 24, 2012, the Environmental Integrity Project and sixteen other organizations 

(Petitioners) submitted a Petition requesting that the U.S. Environmental Protection Agency 

(EPA or Agency) initiate rulemaking to add the "Oil and Gas Extraction Industry," as identified 

by Standard Industrial Classification Code 13 (Oil and Gas) to the list of industries required to 

complete toxic chemical release forms pursuant to Section 313 of the Emergency Planning and 

Community Right to Know Act (EPCRA). The Marcellus Shale Coalition (MSC) provides the 

following response to the Petition and, for the reasons set forth below, urges the Agency to deny 

the Petition. 

The MSC is a regional trade association with a national membership. The MSC was formed in 

2008 and is currently comprised of approximately 300 producing and supply chain members who 

are fully committed to working with local, county, state and federal government officials and 

regulators to facilitate the development of the natural gas resources in the Marcellus, Utica and 

related geological formations. Our members represent many of the largest and most active 

companies in natural gas production, transmission, and gathering in the country, as well as the 

suppliers and contractors who service Oil and Gas. 

I. Introduction and Summary 

EPCRA's reporting requirements were established in 1986 and originally applied to 

manufacturing industries that manufactured, processed or used toxic chemicals in a manner such 

that reporting by these facilities is relevant to the purposes of EPCRA Section 313. In 1996 and 

1997, the Agency engaged in an initial effort to expand the list of industry sectors subject to 

EPCRA Section 313,1 At that time, the Agency considered adding Oil and Gas but declined to 

move consideration of Oil and Gas beyond the initial screening process because the unique 

nature of this industry, when viewed in light of the statutory prerequisites for regulation, 

indicated that the employee and chemical thresholds that trigger Toxic Release Inventory (TRI) 

See 61 Fed. Reg. 33588 (June 27, 1996); 62 Fed. Reg. 23834 (May 1, 1997). 

k)•()r. ' 61'	1. 52751 P 412 706.5160 F 412.705 5170 www.marceUuscoatition.org
reporting were unlikely to be met. 2 Last year EPA commenced a second effort to expand the list 

of industry sectors subject to EPCRA Section 313, but again did not include Oil and Gas.3 

Against this backdrop, the Petitioners submitted a Petition urging EPA to revisit its 1997 

decision and now include Oil and Gas as one subject to EPCRA Section 313. Petitioners' central 

argument is that the nature of Oil and Gas has changed dramatically over the past fifteen years in 

ways that would now support a finding by EPA that Oil and Gas should be subject to the TRI 

Program. 

It is true that Oil and Gas has changed dramatically over the past fifteen years. In particular, 

advances in horizontal drilling techniques combined with the use of hydraulic fracturing 

technology have allowed Oil and Gas to unlock vast quantities of natural gas and hydrocarbons 

previously trapped in tight shale formations like the Marcellus and other geological formations. 

These technological advances have provided the United States with a plentiful domestic energy 

supply, while at the same time creating hundreds of thousands of American jobs. 

While certain aspects of Oil and Gas have changed, however, the key factors that led to EPA's 

1997 decision not to add Oil and Gas to those subject to TRI reporting remain the same. 

Specifically, the volume of toxic chemicals, as defined in EPCRA, manufactured, processed or 

otherwise used at standard Oil and Gas facilities remain below TRI thresholds, thereby defeating 

the purposes of the listing, as EPA previously concluded. In fact, the data Petitioners present—

even as mischaracterized—do not describe a change in facts that would warrant a reversal of 

EPA's prior decision. Instead, Petitioners' lengthy submission amounts to a request that EPA 

substantially revise the legal and regulatory framework that EPA applies to the question of 

whether an industry sector should be subject to EPCRA Section 313. The MSC urges EPA to 

decline Petitioners' invitation to radically change EPCRA's statutory, regulatory and policy 

framework in this manner. 

While the MSC questions the accuracy of some of the data cited by Petitioners, the purpose of 

this response is not to present a point-by-point rebuttal of all of the assertions made by 

Petitioners. Rather, the MSC's comments highlight the more fallacious arguments asserted by 

Petitioners, focusing on Petitioners': (1) attempt to rewrite the current EPCRA Section 3 13 

framework; (2) incorrect interpretations of existing law and regulations; and (3) more egregious 

factual inaccuracies. Accordingly, the Agency should not interpret the absence of a challenge to 

a specific aspect of the Petition as representing agreement with any factual assertion or legal 

position presented by Petitioners, and the MSC explicitly reserves the right to challenge any 

aspect of this Petition in any future proceedings. 

As part of its rulemaking, EPA established three factors it would apply as part of any assessment 

as to whether to subject a new industry to TRI reporting: (1) whether one or more toxic 

2 61 Fed. Reg. at 33592. 

See EPA, TRI Industry Sectors Expansion, available ai 

http ://exhange.regulations.gov/exchange/topic/trisectorsrule/.
chemicals are reasonably expected to be present at facilities within the candidate industry group 

(chemical factor); (2) whether facilities within the candidate industry group manufacture, process 

or otherwise use the toxic chemicals (activity factor); and (3) whether facilities within the 

candidate industry group can reasonably be anticipated to increase the information made 

available to the public or otherwise further the purposes of EPCRA Section 313 (information 

factor).4 

In their submission, Petitioners address the first two factors by summarizing (and in some cases 

mischaracterizing) a slew of aggregate operational data about Oil and Gas. 5 Most of these are 

irrelevant for purposes of assessing whether individual facilities within Oil and Gas should be 

subject to EPCRA and is simply an attempt to present in a negative light the unremarkable 

conclusion that oil and gas extraction facilities use some amount of TRI-listed chemicals. 

Petitioners next argue that unlike in 1997, a significant number of oil and gas extraction facilities 

now meet TRI reporting thresholds, thereby satisfying the information factor of EPA's threepronged test. 6 All of Petitioners' arguments, however, would require EPA to adopt a new legal 

definition of "facility" for Oil and Gas and are based upon a fundamentally incorrect 

interpretation of the application of TRI reporting thresholds. Furthermore, Petitioners' 

supporting arguments concerning EPCRA's treatment of trade secret protections and the need to 

use TRI reporting to provide incentives to the industry are entirely misplaced. 

A. EPA's Rulemaking Decision To Exclude Oil and Gas Was Proper 

Petitioners attempt to dismiss EPA's decision not to subject Oil and Gas to TRI reporting as a 

minor technical issue, asserting that by 1997 "there was little question" that the oil and gas 

extraction industry met these three factors, but EPA chose not to add Oil and Gas due to 

'technical questions" about how EPCRA's definition of "facility" should be applied to the 

industry. 7 In fact, EPA's decision not to include Oil and Gas was not based simply on "technical 

questions" about the definition of a facility, but rather an affirmative finding by EPA that at the 

smallest facility units "neither the employee nor the chemical thresholds are likely to be met" to 

subject Oil and Gas facilities to TRI reporting. 8 EPA indicated at the time that it would continue 

discussions with the Oil and Gas industry and other interested groups about TRI reporting in the 

future, but such a commitment does not render EPA's ultimate decision, or the reasoning behind 

it, any less valid. Indeed, as noted below, the reasoning behind EPA's rulemaking, i.e., that the 

oil and gas extraction facilities would not exceed TRI reporting thresholds, remains true today. 

B. EPA Should Not Adopt a New Definition of "Facility" for Oil and Gas 

Petitioners clearly recognize that the quantities of Section 313 chemicals manufactured, 

processed or otherwise used at a standard facility unit for the oil and gas industry (i.e. an 

individual well) remain below TRI reporting thresholds. To combat this fatal flaw in their 

61 Fed. Reg. at 33594. 

See Petition at 22-59. 

6 See id at 68. 

In addition, it should be noted that EPA did not consider the oil and gas extraction industry beyond the screening 

stage, and therefore EPA did not specifically apply its three part framework to the industry. Accordingly, it is at 

best an overstatement to say that there was "little question" that the industry met the three factors. 

61 Fed, Reg, at 33592.

MARCELL.US

SHALE COALITION
analysis, Petitioners urge EPA to adopt a new, expanded definition of "facility" that artificially 

treats individual oil and gas components located across many square miles as a single facility. 

EPA, however, has no authority to redefine the term "facility" absent new legislation and cannot 

rewrite EPCRA simply because it supports the Petitioners' agenda in this instance. 

Section 329(4) of EPCRA defines a "facility" as "all buildings, equipment and other stationary 

items which are located on a single site or on contiguous or adjacent sites and which are owned 

or operated by the same person (or by any person which controls, is controlled by, or is under 

common control, with such person)." 9 Petitioners appear to believe that "proper" application of 

this definition requires individual operations separated by miles to be considered "adjacent" 

because the operations are somehow "integrated," a term and a concept that is nowhere to be 

found in the EPCRA definition of "facility." Recent case law and regulatory policies in other 

contexts, however, have rejected the notion that any evaluation as to whether two operations are 

"adjacent" can take into account the functional relationship between the two operations. For 

example, the Sixth Circuit, in Summit Petroleum Corp. v. EPA, 1 ° recently considered whether 

multiple natural gas operations could be considered adjacent for purposes of EPA's Title V 

permitting program based in part on an evaluation as to whether the sources were functionally 

interdependent. The panel rejected this approach, holding instead that the terill "adjacent" was 

unambiguous and the plain meaning of term implicates only physical and geographic concerns.11 

In support of its decision, the panel cited several other cases recognizing that questions of 

adjacency are "purely physical and geographical," 12 including the Supreme Court's decision in 

Rapanos v. United States, 13 which evaluated the term "adjacent" for purposes of determining the 

extent of the Army Corps of Engineers' jurisdiction over wetlands adjacent to waters of the 

United States. In sum, Petitioners cannot simply adopt a definitional construct of "facility" that 

artificially inflates the level of chemical use.14 

The Tyson Foods Anal ysis Does Not Support Petitioners' Claim 

In light of the trend that properly limits questions of adjacency to an evaluation of physical 

proximity, Petitioners' attempts to demonstrate that multiple oil and gas operations separated by 

miles can be considered a single facility for purposes of TRI reporting come up short. First, 

Petitioners cite a district court case, Sierra Club v. Tyson Foods,' 5 in support of their argument 

that EPCRA's definition of "facility" can be stretched to cover multiple wells over large areas.16 

Tyson Foods, however, involved the issue of whether individual chicken houses on a single farm 

42 U.S.C. § 11049(4). (emphasis added). 

10690 F.3d 733 (6th cir. 2012). 

'Id. at 741-43. 

2 Id. at 743-44. 

3547 U.s. 715 (2006) 

14 Similarly, the Pennsylvania Department of Environmental Protection ("PADEP") recently adopted a final policy 

to be used for determining whether emissions from multiple operations should be aggregated for purposes of 

determining whether such sources where subject to major source air permitting programs. Consistent with the Sixth 

Circuit's Summit decision, PADEP emphasized that the plain meaning of the term adjacent relates to spatial distance 

or proximity. Based on that concept, PADEP established a quarter mile "rule of thumb" for purposes of evaluating 

the adjacency of two or more operations, pursuant to which operations separated by more than one quarter mile may 

only be considered adjacent on a case-by-case basis. Other states have used this quarter mile rule of thumb in 

similar permitting decisions. 

' 299 F. Supp. 2d 693 (W.D. Ky. 2003) 

6 Petition at 68.

MARCELLUS 

SHALE COALITION
are separate EPCRA facilities. The chicken houses were spaced only 50 to 60 feet apart and 

were all located on land owned by a single person. 17 These facts made it easy for the court to 

find that the chicken houses fell within EPCRA's requirement that individual operations making 

up a facility be "contiguous or adjacent." 18 The close proximity of the chicken houses and the 

simple ownership arrangement clearly met the statute's definition of "facility."19 

As noted by Petitioners, the distance between typical oil and gas facilities is measured in miles 

not feet. Accordingly, contrary to Petitioners' assertions, the Court's analysis in Tyson Foods 

does not support an approach that seeks to link multiple oil and gas wells as a standard facility 

unit for purposes of TRI reporting. 

Petitioners' factual analysis of "proximity" is flawed 

Petitioners next argue that current oil and gas production, in particular natural gas production in 

the Marcellus shale region, has resulted in a high concentration of natural gas wells in close 

enough proximity to be considered a single facility. Simple math applied to Petitioners' own 

figures, however, demonstrates that their position stretches the notion of "adjacent" beyond any 

common-sense notion of physical proximity. Regarding Cabot's operations in Dimock, PA, 

Petitioners emphasize that all the wells are located within a 3.5 mile radius. 2 ° What Petitioners 

do not say, however, is that this means that these wells, which they apparently believe should be 

considered a single facility, may be separated by as much as 7 miles and are located over an area 

of 38.5 square miles. Similarly, the Talisman wells in Columbia, PA and the EOG Resources 

wells in Lawrence, PA referenced by Petitioners are (according to Petitioners' figures) located 

across areas of approximately 66.5 square miles and 30.2 square miles, respectively.2' 

Operations spread out over such large areas, contrary to Petitioners' assertions, are not 

"adjacent" in any sense.22 

Application of EPA's Greenhouse Gas Reporting Program is inappropriate 

Petitioners also suggest that EPA's unique approach towards oil and gas facilities under EPA's 

Greenhouse Gas Reporting Program (GHGRP) "has laid much of the groundwork" for an 

approach that allows individual wells spread out over as much as 66.5 square to be considered a 

single facility for purposes of TRI reporting. 23 A cursory review of the history and reasons 

behind the GHGRP's unique rule applicable to Oil and Gas demonstrates that Petitioners' 

reliance is misplaced. 

' 299 F. Supp. 2d at 700. 

' 8 1d. at7ll. 

Finding such operations to be "contiguous or adjacent" was the oniy reasonable conclusion the court could reach, 

particularly in light of the emphasis EPA's facility determination guidance places on physical proximity. See, e.g., 

EPA, EPCRA Section 313 Questions andAnswers, EPA-745-B-98-004, atI6 (Dec. 1998); EPCRA Section 313 

Indusliy Guidance: Electricity Generating Facilities, EPA-745-B-00-004, at p. 2-4 (Feb. 2000). 

20 Petition at 68. 

21 See id. at 69. 

22 Notably, the natural gas operations at issue in the Summit case referenced previously, where the Sixth Circuit 

rejected EPA's evaluation functional interdependence to determine adjacency, were located over an area of 

approximately 43 square miles at distances varying from 500 feet to 8 miles. 

23 Petition at 70-71,

APCEL LU S 

SHALE COALITION
As an initial matter, it is important to recognize that in developing a definition of "facility" for 

purposes of the GHGRP, EPA was not, in contrast to EPCRA, constrained by a statutory 

definition of "facility." Instead, EPA's statutory authority to develop the GHGRP was derived 

from the 2008 Consolidated Appropriations Act, 24 which simply directed EPA to develop a 

mandatory greenhouse gas reporting rule, 25 and EPA's general authority to request emissions 

information under Section 114 of the Clean Air Act. 26 Neither statutory provision included a 

definition of "facility." Thus, EPA was generally free to develop any definition of facility that it 

felt served the purposes of the GHGRP. Pursuant to that authority, EPA promulgated a general 

definition of "facility" that, like EPCRA's definition, focuses on spatial distance. 27 It is telling, 

however, that in light of this geographically focused definition, EPA felt it was necessary to 

promulgate a unique, broader definition of "facility" for Oil and Gas that roped in all commonly 

owned operations in a single hydrocarbon basin (an action it could take because, unlike in 

EPCRA, EPA was not constrained by a statutory definition of the term "facility"). To adopt 

Petitioners' expanded notions of what constitutes an oil or gas extraction "facility" for purposes 

of TRI reporting, EPA would be required to promulgate a new, unique rule that expanded the 

term specifically for Oil and Gas, something EPA does not have the authority to do under 

EPCRA. Accordingly, it is clear that Petitioners cannot rely upon EPA's actions under the 

GHGRP to support an argument that EPA has authority to expand the definition of "facility" as 

applied to Oil and Gas for purposes of TRI reporting in the absence of an amendment to EPCRA 

and its corresponding regulations. 

In addition, and perhaps more importantly, the policy reasons behind why EPA chose to adopt a 

unique definition of "facility" applicable to Oil and Gas for purposes of the GHGRP are 

fundamentally dissimilar to the purposes served by the TRI program. EPA has noted that the 

purpose of the GHGRP is to provide accurate and timely data essential to informing future 

climate policy decisions, an issue of national, as well as global, scope. 28 With respect to the 

onshore oil and gas industry specifically, EPA noted that adopting a basin level approach under 

the GHGRP would allow EPA to gather important data from this industry to inform this national 

and global policy. 29 By contrast, the focus of the TRI reporting program is, by definition, 

intended to be more local because, as noted by EPA—and acknowledged by Petitioners—"the 

purpose of EPCRA section 313 is to provide information to the public about toxic chemicals in 

their communities." 30 In short, the national and global policy reasons that supported a unique 

definition of "facility" under the GHGRP are not relevant to the locally focused policies behind 

TRI reporting, and therefore Petitioners' reliance on the GHGRP is misplaced. 

C. Petitioners Misinterpret TRI Threshold Requirements 

After urging EPA to adopt a new definition of "facility" for purposes of TRI reporting, which 

requires new legislation, the Petitioners assert that even without a new definition, individual 

24 Pub. L. No. 110-161, 121 Stat. 1844. 

25121 Stat. at 2128. 

2642 U.S.C. § 7414. 

27 74 Fed. Reg. 56260, 563 87(Oct. 30, 2009) (promulgating 40 C.F.R. § 98.6). 

2S See 74 Fed Reg. 16448, 16463 (Apr. 10, 2009). 

29 "[R]eporting at this level would provide the necessary coverage ofGHG emissions to inform policy." 75 Fed. 

Reg. 74458, 74467 (Nov. 30, 2010). 

30 61 Fed Reg. at 33594 (emphasis added); Petition at 6 (describing one of TRI's goals as "encouraging informed 

community-based environmental decision making").

APCELLUS 

SHALE COALITION
industry components—specifically wells, gathering and boosting components—manufacture, 

process or otherwise use toxic chemicals in excess of applicable TRI reporting thresholds. 

Petitioners' arguments, however, reflect a fundamental misunderstanding of the analysis required 

to determine whether a facility has exceeded the 25,000 pound (for manufacture or process) or 

10,000 pound (for use) thresholds. Under EPCRA Section 313(f), this threshold analysis is 

completed on a chemical-by-chemical basis, not by determining the aggregate weight of all TRI 

chemicals present at a facility. Petitioners claim, however, that TRI reporting is required if the 

combined weight of all TRI chemicals manufactured or processed at a facility exceeds 25,000 

pounds, or the combined weight of all TRI chemicals otherwise used at the facility exceeds 

10,000 pounds. 31 Petitioners' position on threshold calculations is simply incorrect, and this 

fundamental error defeats their position that individual facilities in the oil and gas industry might 

exceed TRI reporting thresholds. 

Whether a threshold prescribed by Section 313(f) of EPCRA has been exceeded is determined on 

a chemical by chemical basis, not by combining the weight of all TRI chemicals that may have 

been manufactured, processed or used exceeds the threshold: 

The threshold amounts for purposes of reporting chemicals under this section are as 

follows: 

(A) With respect to a toxic chemical used at a facility, 10,000 pounds of the toxic 

chemical per year... 

(B)(iii) For the form required to be submitted on or before July 1, 1990, and for each 

form thereafter, 25,000 pounds of the toxic chemical per year.32 

These thresholds, with the explicit references to "the toxic chemical", are repeated in the 

corresponding regulations.33 

Contrary to EPCRA's express provisions that require a chemical-by-chemical calculation, 

Petitioners appear to believe that the aggregate volume of all TRI chemicals at a facility 

determines TRI applicability. For example, Petitioners argue that industry data concerning total 

hazardous air pollutant (HAP) emissions are above TRI reporting thresholds, but they fail to 

differentiate the HAPs in question, completely ignoring the TRI requirement to evaluate the 

amount of each individual HAP. 34 Petitioners are even more explicit, and equally wrong, in their 

statements about the use of chemicals in the well development process. With respect to drilling 

muds, Petitioners incorrectly assert—twice—that that the reporting threshold for TRI-listed 

metals is "10,000 pounds per year, either individually or combined with other listed 

chemicals." 35 The Petitioners then apply this mistaken approach to an EPA data set and state 

that the combined volume of TRI listed metals present in Barite could exceed 10,000 pounds, 36 

' See Petition at 75, 77. 

3242 U.S.C. § 11023 (0( 1 )

(emphasis added) 

40 C.F.R. § 372.25. EPA has established specific chemical categories (e.g., nickel compounds) for which 

facilities are required to total all volumes of the chemicals that fall within the category and then determine if the 

specific chemical category exceeds the threshold. See 40 C.F.R. § 372.25(c) and §372.65(c). Petitioners' argument, 

however, is not that chemicals used at well sites fall under one of these categories, but rather that the weight of all 

TRI chemicals used, manufactured or processed at a facility should be totaled in all instances. 

34	. Petition at 73-74. 

Id. at 75. 

Id. at 76.

N A P C E L L U S 

SHALE COAL$TION
a figure completely irrelevant for purposes of determining whether TRI thresholds have been 

triggered. 

Petitioners repeat their incorrect interpretation of TRI threshold determinations in their 

discussion about methanol use. Specifically, Petitioners calculate that at what they assert are 

"low" methanol injection rates, an average gas well would use approximately 1,100 pounds of 

methanol. 37 According to Petitioners, this means that "a facility containing nine such wells or 

using 9,000 pounds of other reportable chemicals, such as benzene or the metals in barite, 

would trigger the TRI reporting threshold." 38 The second half of this statement is flatly wrong. 

In order for this facility to trigger the use threshold, the facility would have to use 10,000 pounds 

of methanol, 10,000 pounds of a TRI listed metal, or 10,000 pounds of benzene. If the weight of 

these chemicals used at the facility when considered individually is below 10,000 pounds, no 

TRI reporting is required even if the combined weight of these chemicals exceeds 10,000 

pounds.39 

In sum, the application of the proper legal definition of "facility" together with the prescribed 

methodology for calculating TRI chemical thresholds would result in the generation of little or 

no chemical information from Oil and Gas. Such a conclusion is perfectly consistent with and 

supports the determination made by EPA in 1997 that Oil and Gas should not be subject to TRI 

reporting under EPCRA. 

D. Trade Secrets are Protected under EPCRA 

At various points, the Petitioners argue—either directly or through implication—that subjecting 

Oil and Gas to TRI reporting is necessary because state disclosure rules improperly allow 

companies to withhold certain chemical information as trade secrets or confidential business 

information.40 Petitioners fail to note, however, that EPCRA also includes provisions to protect 

trade secrets and to allow persons to withhold certain chemical identity information and instead 

provide the generic class or category of the trade secret chemical. 41 Thus, even if an individual 

oil and gas extraction facility was required to submit a TRI report, EPCRA would allow that 

facility to withhold chemical identity information, much like many of the state programs that 

Petitioners find deficient. 

A pointed example of Petitioners' failure to acknowledge the extent of trade secret protection 

afforded by EPCRA is the discussion of what the Petitioners characterize as the "physician 'gag 

rule" 42 enacted in Pennsylvania as part of the recent comprehensive amendments to the 

Pennsylvania Oil and Gas Act. 43 While Petitioners cast these provisions as "controversial" 

(echoing the term three times in a single paragraph) and in an overall negative light, they fail to 

Id at 78. 

381d. 

See 40 C.F.R. § 372.25(a)-(b). Petitioners cite some questionable data and indicate that the use of two TRI 

chemicals, aluminum and methanol, may in limited circumstances exceed TRI use thresholds. Assuming 

Petitioners' data is credible, these isolated operating scenarios, if true, are insufficient to justify subjecting an entire 

industry to the TRI reporting program. 

40 See Petition at 63-66. 

4! 42 U.S.C. § 11042. 

42 Petition at 66. 

Act ofFeb. 14, 2012, P.L. 87, No. 13, 58 Pa. c.s. § 2301-3504. 

MARCELLUS 

SHALE COALITION
acknowledge that the Pennsylvania provisions are based in large part upon EPCRA Section 322, 

"which, like Pennsylvania's statute, allows persons disclosing confidential trade secret TRI 

information to health professionals for purposes of medical treatment to require those health 

professionals to execute a confidentiality agreement that prohibits use of the trade secret 

information other than for health reasons set forth in a statement of need. 

Petitioners may respond that their concern over the trade secret issue is really the framework by 

which information can be designated a trade secret, and that EPCRA would provide what they 

believe to be a more robust process for substantiating and potentially challenging trade secret 

claims. While it may be accurate to say that EPCRA provides different procedures associated 

with withholding trade secrets, absent a demonstration that current state programs are improperly 

allowing persons to withhold trade secrets from disclosure (e.g., by being so broad as to allow 

non-trade secret information to be withheld), the difference in procedures cited by Petitioners 

does not address the key question for TRI reporting purposes: whether subjecting Oil and Gas to 

the TRI program would reasonably be anticipated to increase the information made available 

pursuant to EPCRA Section 313 or otherwise further the purposes of EPCRA Section 313. In 

other words, contrary to Petitioners' claim, subjecting Oil and Gas to EPCRA Section 313 would 

not necessarily increase the amount of information disclosed about chemicals that have been 

designated trade secrets under various state programs. 

E. TRI Reporting Is Not Necessary to Spur Oil and Gas Advances 

At various points, Petitioners portray the Oil and Gas as free from meaningful environmental 

regulation and argue that absent TRI reporting, Oil and Gas has "no incentives to find their own 

way of preventing pollution, to choose less toxic alternatives, or to do anything other than 

maximize oil and gas production and address the impacts after they have occurred."45 

Conditions in the field, especially here in the Marcellus region, paint a much different picture, 

however, and illustrate that Petitioners' statement—like much of the rest of the Petition—is 

hyperbole. 

As an initial matter, aspects of the natural gas industry in the Marcellus region are subject to 

dozens of state and federal environmental laws and regulations enforced by no fewer than 

fourteen state, federal and regional agencies that routinely review pollution prevention and 

minimization plans as part of granting authorizations for natural gas activities. For example, 

Pennsylvania regulations require well operators to develop a wastewater reduction strategy that 

identifies "the methods and procedures the operator shall use to maximize the recycling and 

reuse of flow back or production fluid either to fracture other natural gas wells, or for other 

beneficial uses." 46 En accordance with that regulation, and in concert with other voluntary 

efforts, use of recycled flow back water in the Marcellus region has increased dramatically, with 

operators now recycling approximately 85% of flow back water collected from hydraulic 

fracturing operations. 

Aside from regulatory incentives, the industry has taken many voluntary steps to develop 

methods to reduce its environmental footprint. On an organizational level, the MSC continues to 

42 U.S.C. § O42. 

Petition at 79. 

46 25 Pa. code 95.1O(b)(2).

MARCELLUS 

SHALE COALITION
develop a series of Recommended Practices for the natural gas industry operating in the 

Marcellus region that are designed to assist industry professionals consistent with the MSC's 

guiding principle to implement state of the art environmental protection across a!! operations. To 

date, the MSC has published five Recommended Practices and is in the process of developing 

more. 

With respect to the use of chemicals specifically, a number of companies are currently working 

to develop hydraulic fracturing fluid formulas that use less TRI chemicals as well as other 

systems and related technologies. For example, there has been progress both on 

"environmentally friendly" biocides and on alternate methods to treat bacteria that involve 

ultraviolet light instead of chemicals. Contrary to Petitioners' claims, these innovations have 

occurred without a requirement that Oil and Gas report TRI chemicals. 

In 1997, EPA declined to add Oil and Gas to the list of industries subject to TRI reporting after 

finding that it was unlikely that operations of individual oil and gas extraction facilities would 

exceed applicable TRI thresholds. While Oil and Gas has undoubtedly evolved over the past 

fifteen years, the basis of EPA's determination has not changed. After discounting many pages 

of irrelevant and sometimes misleading data, ultimately Petitioners arguments rest upon (I) EPA 

adopting a new definition of what qualifies as a "facility" for purposes of EPCRA reporting, 

something that would require new legislative authority; (2) a fundamental misunderstanding of 

how facilities determine whether TRI thresholds have been met; and (3) the false belief that TRI 

reporting by Oil and Gas will result in the availability of more public information and will lead 

to greater incentives for innovation. Accordingly, for all of the reasons stated above, the MSC 

respectfully requests the Agency to reject the Petition. 

We appreciate your consideration of the MSC's position on this important matter. Please contact 

me if any further information is required. 

Kathryn Z. Klaber 

President

MARCELLUS 

SHALE COALITION