July 26, 2014

EPA Takes A Step Towards Additional Toxic Substances Control Act (TSCA) Regulation of Exploration and Production (E&P) Fluids

A notice expected to be published by EPA in the Federal Register on July 11, 2013 could be a step towards additional Toxic Substances Control Act (TSCA) regulation of substances used in oil and gas exploration.  The notice follows a prior response to a petition from environmental groups seeking regulation of exploration and production (E&P) fluids under TSCA.  While EPA rejected the majority of that petition, EPA partially granted a portion of the petition and is considering proposing rules that could require the submission of some data regarding chemical substances and mixtures used in E&P.

EPA will not immediately issue a proposed rule.  Instead, the Agency plans to develop an Advance Notice of Proposed Rulemaking (ANPR).  ANPRs are less formal than proposed rules and do not necessarily include detailed regulatory provisions or analysis.  Instead, ANPRs present a broad framework of potential regulatory pathways.  ANPRs typically ask for public comment on possible regulatory options.  After completion of the ANPR process, EPA could then choose to issue a formal proposed rule. 

EPA also plans to “initiate a stakeholder process to provide input on the design and scope of the TSCA reporting requirements that would be included in a proposed rule.”  The stakeholder process would be designed to “bring stakeholders together to discuss the information needs and help EPA to ensure any reporting burdens and costs are minimized, ensuring information already available is considered in order to avoid duplication of efforts.”  EPA is also interested in “determining how information that is claimed Confidential Business Information could be aggregated and disclosed to maximize transparency and public understanding.”

There is no firm timetable for the actions EPA describes in the notice.

© 2014 Bracewell & Giuliani LLP

About the Author

Grant B. MacIntyre, Environmental Law Attorney, Bracewell & Giuliani Law Firm

Grant MacIntyre is a member of the firm’s Environmental Strategies Group. He represents clients in federal and state environmental compliance and enforcement matters, including rules and mandates relating to greenhouse gases, the Clean Air Act, Clean Water Act, and Administrative Procedure Act rulemaking and judicial review.


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