EPA Denies Anti-Fracking Activists’ Petition to Expand Regulations
The U.S. Environmental Protection Agency (EPA) has made it clear on several occasions that Section 313 of the Emergency Planning and Community Right-to-Know Act, commonly known as the Toxics Release Inventory (TRI), is not designed to cover oil and natural gas production activities.
So it came as no surprise this week when EPA announced it is largely denying a petition filed nearly three years ago by noted anti-fracking group, the Environmental Integrity Project (EIP), and a handful of other activist groups requesting oil and gas production to be subject to TRI reporting.
EPA’s decision was based on two simple facts EIP can’t seem to grasp: First, TRI reporting is intended for large facilities such as chemical plants and is not appropriate for oil and gas production. Second, there is already extensive oversight on oil and gas production at the state and federal levels.
The EPA did throw environmentalists a bone by announcing it will consider requirements for natural gas processing plants to report to the TRI. But contrary to EIP’s rosy take on the announcement, the EPA’s response was the latest example of a failed attempt by greens to add unnecessary regulations on the oil and gas industry by deliberately misinterpreting federal law.
Here is a breakdown of the two primary reasons why EPA largely rejected EIP’s petition:
Reason 1: The TRI Was Never Meant to Cover Oil and Gas Development
The TRI’s specific purpose is to provide information on chemicals released into the environment from large, permanent manufacturing and storage facilities – providing they meet certain threshold levels – to emergency response teams, state and local governments, and citizens residing nearby.
EIP argued that individual oil and gas fields qualify as facilities, much like a factory or warehouse, and therefore should be subject to TRI reporting. But EPA has again rejected that claim, reaching the essentially the same conclusion it did back in 1996:
“SIC 13 (the oil and gas extraction sector) is unique in that many activities within this sector may manufacture, process, use and/or release significant quantities of TRI-listed chemicals, yet the activities are often spread over a vast geographical area and require few employees to operate. Consequently, taking these activities at the smallest individual unit (individual well, compressor station, booster station, etc.), neither the employee nor the chemical thresholds are likely to be met on a regular basis.”
EIP tried to convince EPA that clusters of wells in any given oil or gas field are analogous to corporate chicken farms (no, seriously), in which a group of chicken houses sitting 40-50 feet apart and owned by the same company are now considered a single “facility” and are subject to TRI reporting.
EPA correctly pointed out that oil and gas wells are normally spread out over a much broader geographical region than chicken farms, and are more often than not owned by several different companies:
“Notably, however, the average distances between these oil and gas operations far exceed the “50 to 60 feet” separating the chicken houses in Sierra Club, Inc., v. Tyson Foods, Inc. Perhaps more importantly, in Sierra Club, Inc. vs. Tyson Foods, Inc., the chicken houses were clearly “located on single or adjacent sites… owned by the same person.” Onshore petroleum and natural gas production operations can be very diverse in arrangement, and are simply not analogous to a number of “chicken houses” located on a single farm with a single owner/operator.”
EPA also noted that individual wells are already subject to numerous regulations and reporting requirements and that a wellpads, pipelines and compressor stations would likely be far below the TRI reporting threshold for both toxic chemicals and employees (10) set forth in the Toxic Release Inventory. Those are two reasons that specific provision of the Emergency Planning and Community Right-to-Know Act is not relevant to oil and gas production. However, oil and gas development is subject to two relevant provisions of the EPCRA –Sections 311 and 312 – which require industry to make Material Safety Data Sheets (MSDSs) available to state and local officials and local fire departments.
Reason 2: EPA Already ‘Targeting’ Industry on Numerous Levels
Clearly, if the EPA felt that adding oil and gas production to TRI reporting were necessary, it would have done it by now. EPA actually explains in its response that it is already regulating development on several fronts, listing 16 federal rules covering air, water, chemicals, water management and emergency management that are already being implemented or in the works:
“Finally, and of great significance to EPA’s consideration of this petition, EPA is already engaged in a wide array of rule-making, guidance, research and other outreach activities targeting the oil and gas extraction sector.”
The oil and gas production sector is also heavily regulated at the state level, which is one reason the Ground Water Protection Council has pointed out most information required under TRI is already reported to state agencies that make it publicly available. Therefore, subjecting oil and gas production to TRI reporting would serve no real purpose, other than forcing companies into costly and redundant compliance, and thereby slowing down U.S. production.
Oil and gas production activities are also subject to eight federal laws: the Safe Drinking Water Act (SDWA); Clean Water Act (CWA); Clean Air Act (CAA); Resources Conservation and Recovery Act (RCRA); Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); the EPCRA; Toxic Substances Control Act (TSCA); and Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).
EIP’s petition – and subsequent lawsuit against EPA in January for its lack of response to the petition –was clearly an attempt to add burdensome and unnecessary reporting requirements on an industry that even the EPA admits is currently subject to more than its fair share of regulatory requirements.
EIP’s tactics aren’t all that surprising, considering it receives funding from the anti-industry Park Foundation. EIP is also the group that in 2014 claimed wells were fracked with diesel in epic proportions, when in actuality, only a handful of wells were fracked with kerosene, which wasn’t even considered diesel at the time. Of course, as we’ve noted before, while these groups claim to be advocating for “stronger rules,” in reality their mission is to ban drilling entirely – and they will clearly use any tactic to do so.