Will EPA Go Further in Pushing Fracking Fluid Disclosure?

May 28, 2014

It's no secret that gas drillers are injecting hydrochloric acid, methanol, ethylene glycol, petroleum distillates, and a bunch of other toxic chemicals under high pressure into underground formations. But Congress, which gets vast amounts of money from drilling companies, remains convinced that the public should not know about what chemicals could end up in their drinking water wells. A 2005 law exempts the "fracking" industry from certain Safe Drinking Water Act disclosure requirements.

Now the U.S. Environmental Protection Agency has embarked on an exploration of requiring disclosure of fracking fluid ingredients. EPA published in the Federal Register of May 19, 2014, a notice that it was considering rulemaking on fracking fluid disclosure and an invitation for public comment on the issue.

Although EPA explicitly said its action might be voluntary rather than regulatory, some political and legal brouhaha is sure to follow. Water and oil are not mixing well in some drought-stricken states, and the matter may only get more controversial before the 2014 and 2016 elections. Moreover, EPA does not seem to think the 2005 SDWA exemption has permanently and definitively put a stake in the heart of fracking fluid disclosure. It is exploring some of its other legal authorities, for example the Toxic Substances Control Act, for improving transparency about fracking fluid.

Another legal authority could be the Clean Water Act itself. Fracking wastewater includes not only the injected fracking fluid, but any water produced by underground formations (which sometimes contains natural radioactive substances). EPA has authority under the CWA to regulate this wastewater not only under the NPDES permit program (before it is discharged into lakes and streams), but also under the legally based program that requires pretreatment of industrial wastewater before it is discharged into publicly owned treatment works such as sewage plants.

One sign that EPA might be thinking of using its existing CWA legal authority came when the publication DeSmogBlog published on May 28 a leaked EPA draft suggesting it was considering doing precisely that.

Despite the fact that most of the ingredients and recipes for fracking fluid are fairly well known, and the fact that no one company's recipe has seemed to give it much of a competitive advantage in well yield, some companies still claim their ingredients are a "trade secret."

While some state legislatures have enacted fairly strong fracking disclosure laws, others are still controlled by the oil and gas industry. For example, North Carolina's legislature is considering criminalizing the disclosure of fracking chemicals.