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Last September, the State of Ohio informed shale drillers that they must provide a list of certain toxic chemicals being used on drill sites to the State Emergency Response Commission, their Local Emergency Planning Committee, and their local fire department.  The State’s announcement followed a determination in April of 2013 that Ohio’s chemical-reporting laws do not supersede the federal requirements in the Emergency Planning and Community Right-to-Know Act (“EPCRA”).  A 2001 state law required that toxic chemicals used at well sites be reported only to the Ohio Department of Natural Resources.  With the burgeoning number of Utica and Marcellus shale wells in Ohio, environmental groups began to petition the United States EPA to insist that drillers comply with the provisions of Section 312 of EPCRA.  Section 312 was enacted to provide state and local emergency planners and responders with specific toxic chemical information to enable them to carry out their respective tasks efficiently.  State officials and the oil and gas industry representatives contend that the state law was intended to centralize, better organize, and provide easier access to chemicals used on drilling sites.  Nevertheless, the State acceded to the request of the US EPA and directed all drillers to commence compliance with the federal reporting requirements no later than September 21, 2013. 

A number of environmental advocacy groups have now gone back to the EPA, arguing that another section of EPCRA regulation should also be applied to drilling sites.  Section 313 of EPCRA requires that facilities having more than 10 employees submit an annual toxic chemical release report if they manufacture, process, or use specified chemicals in amounts greater than threshold quantities.  The EPA uses the data from these reports, commonly known as Form R, to compile and issue the National Toxic Release Inventory (“TRI”) database.  Unlike Section 312, Section 313 of EPCRA actually contains language that exempts the oil and gas extraction industry from having to file Form R reports.  Some environmental groups argue that this exemption should be dropped.  One environmental group claims to have identified nearly 400 facilities in the oil and gas extraction industry that each emits over 10,000 lbs of at least one of the toxic chemicals identified in EPCRA.  They argue that this exemption undermines the purpose of Section 313, which is to advise the public about these releases and potential threats to their health. 

The oil and gas extraction industry has received other exemptions from federal environmental laws:

  1. Fracking wells are specifically exempted from obtaining an Underground Emission Control Permit, under the Safe Drinking Water Act (“SDWA”), unless they utilize hydraulic fracturing fluids containing diesel fuels.
  2. Under the Clean Water Act (“CWA”), oil and gas well sites are not required to obtain a general storm water permit.
  3. Oil and gas exploration and production wastes are not regulated as hazardous wastes under the Resource Conservation and Recovery Act (“RCRA”).
  4. Under the Comprehensive Environmental Response, Compensation, and Liability Act (otherwise known as “CERCLA” or “Superfund”) the liability and reporting provisions do not apply to injections of fluids in gas and oil exploration and production activities authorized by state law for production, enhanced recovery or produced water.  Petroleum releases are also exempted from liability and reporting requirements. 

The EPCRA and RCRA exemptions are regulation based, and therefore more susceptible to change by the regulating agency, although only within the parameters of the legislation that authorizes their enactment.  The SDWA, CWA, and CERCLA exemptions are based in statute, and would therefore require Congressional action to be eliminated or modified - a much less likely prospect.

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