Chemicals & Public Disclosure
In 1986, Congress enacted the Emergency Planning and Community Right to Know Act (EPCRA). EPCRA established requirements for federal, state and local governments, tribes, and industry regarding emergency planning and "community right-to-know" reporting on hazardous and toxic chemicals. The community right-to-know provisions of EPCRA are the most relevant part of the law for shale gas producers. These provisions help i ncrease the public's knowledge and access to information on chemicals at individual facilities, along with their uses and potential releases into the environment. Under Sections 311 and 312 of EPCRA, facilities manufacturing, processing, or storing designated hazardous chemicals must make Material Safety Data Sheets (MSDS), describing the properties and health effects of these chemicals, available to state and local officials and local fire departments. Facilities must also provide state and local officials and local fire departments with inventories of all on-site chemicals for which MSDS exist. Information about chemical inventories at facilities and MSDS must be available to the public. Facilities that store over 10,000 pounds of hazardous chemicals are subject to this requirement. Any hazardous chemicals above the threshold stored at shale gas production and processing sites must be reported in this manner.
Section 313 of EPCRA authorizes EPA’s Toxics Release Inventory (TRI), which is a publicly available database that contains information on toxic chemical releases and waste management activities reported annually by certain industries as well as federal facilities. EPA issues a list of industries that must report releases for the database. To date, EPA has not included oil and gas extraction as an industry that must report under TRI. This is not an exemption in the law. Rather it is a decision by EPA that this industry is not a high priority for reporting under TRI. Part of the rationale for this decision is based on the fact that most of the information required under TRI is already reported by producers to state agencies that make it publicly available. Also, TRI reporting from the hundreds of thousands of oil and gas sites would overwhelm the existing EPA reporting system and make it difficult to extract meaningful data from the massive amount of information submitted.
While shale gas production facilities do not normally store the materials subject to EPCRA reporting, a limited number of chemicals used in the hydraulic fracturing process - such as hydrochloric acid - are classified as hazardous under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) which requires reporting of releases into the environment of these materials. Further, EPCRA section 304 requires reporting of releases to the environment of certain materials. This includes releases of products used in oil and gas production that exceed reporting thresholds, even if those products are exempt from CERCLA reporting. These chemicals may be brought on site for a few days, at most, during fracturing or work‐over operations. Businesses must report non‐permitted releases—into the atmosphere, surface water, or groundwater—of any listed chemical above threshold amounts, known as the "reportable quantity", to federal, state, and local authorities. Therefore, while every precaution is taken to prevent chemical spills, in the event of an accidental release above the reportable quantity, a report would be made to these authorities by the operator.
In addition to federal disclosure laws, many states have developed or are developing public disclosure rules related to hydraulic fracturing. These states include Wyoming, Pennsylvania, Arkansas, Texas, Colorado, New Mexico, Montana, West Virginia, Idaho, and North Dakota. Although the content of these rules differs, the intent of each is to provide the public with information about the chemicals being used to fracture wells. The changes in state public disclosure laws are occuring so fast that posting a comprehensive list of all states contemplating or preparing laws in this area is not possible as it would change on a frequent basis.