Gas ‘fracking’ foes weigh toxics lawsuit if EPA petition fails

“We certainly think there would be good ground for litigating,” said Deborah Goldberg, an attorney with Earthjustice, which filed the petition on behalf of a suite of national and local environmental groups.

“Having made the case as strongly as we have for the rulemaking, [EPA is] now in a position where they do have to consider this, and if they decline we would be authorized at that point to go to court,” she said.

Goldberg emphasized that the scores of groups on the petition would not necessarily be the litigants in a potential court action.

For now, the groups’ emphasis is on the petition that calls on EPA to craft new rules under TSCA that would require manufacturers of petroleum exploration and production chemicals to “develop test data sufficient to evaluate the toxicity and potential for health and environmental impacts of all substances and mixtures that they manufacture and process.”

EPA is limited in its ability to regulate the fracturing practice itself under the Safe Drinking Water Act, thanks to exemptions contained in a sweeping 2005 energy law.

But the petition shows that environmental groups see the toxics law as an opening to force more information under the law that could make the case for limits on the practice.

“We are seeking to have a full body of information on the health and environmental impacts of these chemicals so that we can better understand and EPA can better understand how to manage their risks,” said Richard Denison, a senior scientist with the Environmental Defense Fund, on a call Thursday with reporters about the petition.

Hydraulic fracturing, also called “fracking,” involves high-pressure injections of chemicals, water and sand to break apart rock formations and enable trapped gas to flow. The green groups' petition addresses chemicals used in fracking and other aspects of the oil-and-gas development process.

The petition also calls for EPA rules that force manufacturers and processors to file reports with the agency that disclose the identities and quantities of chemicals and “all existing data” on potential or demonstrated environmental and health effects.

In addition, the groups want EPA to obtain from the industry records of allegations that the chemicals have caused “significant adverse reactions,” and to craft rules that mandate submission of all existing, but not reported, studies on the health and safety effects of the chemicals.

Industry groups contend that fracking opponents are vastly overstating risks about the practice, and say their development practices protect water supplies.

Fracking is decades old but is becoming increasingly widespread amid the rush to unlock what are thought to be massive amounts of gas trapped in shale rock formation in several states.

Chris Tucker, a spokesman for the oil-and-gas industry group Energy In Depth, said the industry is already disclosing needed information on chemicals used in fracking.

He pointed to the voluntary database launched by the Interstate Oil and Gas Compact Commission and the Groundwater Protection Council, as well as other efforts.

“I think what these groups are starting to realize is that the momentum they thought they had on the additive disclosure talking point is no longer there, especially with the launch of the national fluids database and the disclosure initiatives we’re seeing take shape in the states,” Tucker said.

“Given all that, I think what you have here is a basically a last-ditch attempt to try to win back some of that terrain, but there’s just not a whole lot of substance here. Just about everything they’re demanding is already being done,” he added.

The petition notes that the online registry doesn’t impose enforceable requirements on chemical manufacturers, processors or distributors, and that EPA rules are needed to “fill this gap.”