The debate over disclosure of the harmful chemicals used in hydraulic fracturing has come a long way in the last 12-18 months or so. Back then, the question was: Will companies disclose their special sauce? Industry has mightily attempted to shield from the public which poisons they use to extract methane from deep shale formations. It’s proprietary information, according to their lawyers. Their lawyers still continue to make that argument in a case currently pending in Wyoming. But for the most part the policy debate has shifted. Now, the question is: What should the companies disclose? And what form should the disclosure take?
Led by our friends at the Environmental Integrity Project, Earthworks and a number of other organizations are asking the Environmental Protection Agency (EPA) to add the oil and gas industry to the list of sectors required to disclose the toxic chemicals associated with fracking. Section 313(b)(1)(B) of the Emergency Planning and Community Right-to-Know Act (EPCRA) confers upon private citizens the right to petition the EPA to add additional industries to EPCRA.
EPCRA does not have any substantive pollution control requirements. Instead, its main purpose is to provide communities with the information about which industrial facilities release toxic pollutants in to their neighborhoods. The law empowers communities by supplying then with knowledge and it pressures polluters by publicizing their emissions. It does so through the law’s Toxic Release Inventory (TRI). The TRI is an annually published searchable online database that allows anyone to learn the kinds and quantities of toxic chemicals emitted to the environment.
The TRI was enacted in 1986 as a response to the Bhopal disaster in India. Congress empowered the EPA with the authority to select which industrial sectors would submit TRI reports and, from time to time, add additional sectors as necessary. So far, only President Clinton’s EPA has chosen to exercise this authority. In 1996 and 1997, EPA added coal mining and metal mining, which remains to this day, the world’s largest producer of toxics. The Clinton Administration also seriously considered adding the oil and gas sector as well. Ultimately, they chose to defer.
Since then, our nation has seen an explosion in natural gas development. Once confined to remote regions out West in states with long traditions of energy extraction, the frackers have since crept Eastward toward major population centers. From just over 300,000 wells a decade ago, the Energy Information Agency now estimates almost 500,000 wells in at least thirty-four states. The natural gas boom has only very recently received the proper attention from Federal Government regulators. The Bureau of Land Management (BLM) has issued proposed rules governing fracking on public lands. The EPA has issued air rules for fracking and is studying the potential impact on drinking water resources.
This recent and drastic change in the industry’s complexion combined with its softening position against disclosure should compel the EPA to take another look at including the sector in the TRI. The widespread use of newer technologies like horizontal drilling and hydraulic fracturing create a completely different picture of how the industry operates. Rather than one individual wellhead with a vertically drilled wellbore, we now see multiple wellbores stretching as far as 10,000 feet horizontally from the wellhead in all different directions. In short, the industry’s environmental footprint differs substantially from 1996.
Protecting the environment and public health for future generations is every citizen’s responsibility. The TRI is one of our best tools for this. The oil and gas sector already enjoys exemptions from seven of our basic bedrock environmental laws. We don’t even need an Act of Congress for this one, so let’s knock it down to six.