Legislators, regulators, and environmental groups in Ohio continue to spar over how chemicals at oil and gas well sites should be reported and made available to the public and to emergency responders.
In Drilling site exemption targeted by environmental groups, I recounted how a number of environmental advocacy groups had petitioned the United States EPA to insist that oil and gas well drillers comply with the provisions of Section 312 of the Emergency Planning and Community Right-to-Know Act (“EPCRA”). EPCRA was enacted by Congress to provide state and local emergency planners and responders with specific toxic chemical information to enable them to carry out their respective tasks effectively and efficiently. EPCRA was passed in 1986 in response to the Bhopal factory disaster that killed thousands of people in India. In 2001, the Ohio legislature passed a law requiring that toxic chemicals used at well sites be reported only to the Ohio Department of Natural Resources (“ODNR”).
When drilling activities in the Utica shale play began to escalate, environmental groups argued to the U.S. EPA that the 2001 Ohio reporting legislation did not exempt drillers from complying with the EPCRA Section 312 reporting requirements. The U.S. EPA agreed with their position and issued a Determination in April of 2013 that Ohio’s chemical reporting laws do not supersede EPCRA requirements. In September of 2013, the State of Ohio informed shale drillers that they must provide the State Emergency Response Commission, their Local Emergency Planning Committee, and their local fire department with a list of toxic chemicals used or stored on their site.
Buoyed by their apparent success, a number of environmental advocacy groups went back to the U.S. EPA and argued that drillers should also have to comply with Section 313 of EPCRA. Section 313 requires that any facility having more than 10 employees must submit an annual Toxic Chemical Release Report (more commonly known as Form R) if they manufacture, process, or use specified chemicals in amounts greater than threshold quantities. The U.S. EPA uses data from the Form R reports to compile and issue the National Toxic Release Inventory (“TRI”) data base.
Unlike Section 312, Section 313 of EPCRA actually contains language that exempts the oil and gas extraction industry from having to file chemical release reports. Environmental groups argue that many oil and gas drilling sites store toxic chemicals over the EPCRA Section 313 threshold quantities and, therefore, are just as likely to have toxic release emissions as any of the entities that are required to report. To date, the efforts to remove the exemption have proven unsuccessful.
While the debate over Section 313 continues, the debate over Section 312 reporting to emergency responders and planners was reopened recently when the Ohio House of Representatives passed House Bill 490 (HB 490) in November. Provisions in HB 490 would have made the Ohio Department of Natural Resources (rather than the State Emergency Response Commission) the clearing house to which drillers would provide lists of toxic chemicals used in their operations and stored at their sites. Under HB 490, ODNR would then determine the “appropriate” information to be submitted into an electronic data base that would be made available to local emergency planning committees and fire departments for use in the event of emergency response.
Proponents argued that House Bill 490 would actually improve toxic chemical awareness for emergency responders, and that it was consistent with the intentions of EPCRA. Their reasoning was that ODNR currently serves as the permitting entity and clearing house for all well drilling information and, therefore, is the logical repository and disseminator of this information to state and local emergency responders. Opponents argued that the intention of EPCRA was that toxic reporting information go directly to first responders, and that requiring that information first go to a non-responder entity such as ODNR only slowed the process and otherwise failed to comply with EPCRA. Ohio’s Senate Agriculture Committee considered these arguments through hearing testimony and chose not to advance the bill to the Senate floor for a full vote.
Look for debate on this issue to continue as regulators, emergency planners and responders, and industry representatives seek to balance measures that ensure emergency responder safety and preparedness against protections of trade secret chemical formulations and proprietary fracking fluids.