“Congress shall make no law ... abridging ... the right of the people ...
to petition the government for a redress of grievances.”
The First Amendment of the U.S. Constitution enshrines the notion that as citizens, we have a right to seek redress of grievances from our government. The Obama Administration created a website where citizens can petition the government and, provided that a sufficient number of signatures have been obtained, it must address the subject of the petition. This has led to such absurd petition drives, like urging the construction of a "Star Wars"-like Death Star and deporting teen singer Justin Bieber.
But did you know that many statutes also have provisions that provide for public input on regulatory matters to which agencies must respond with the promulgation of regulations or an explanation of why such regulations should not be drafted? Recently, in response to a citizens’ petition, the Environmental Protection Agency(EPA) provided notice of the possible promulgation of regulations relating to the collection of information related to the constituents of fracking fluids. Interested parties have until Aug. 18 to provide their comments and suggestions as EPA decides how to obtain information on fracking fluids.
The Toxic Substances Control Act (TSCA) is the statute that provides EPA with its authority over chemical substances and mixtures, including requiring record keeping, testing and preparing health and safety studies on those chemicals. TSCA also provides that a person can petition the EPA “for the issuance, amendment or repeal of a rule ..." issued under certain provisions of TSCA and, upon doing so, EPA may conduct an investigation or proceeding to determine if it should grant such a petition.
Fracking, or hydraulic fracturing, is a process whereby water, chemicals and sand are injected into deep shale deposits. This cocktail of fracking fluids is pumped deep underground under pressure, where shale deposits are broken, and the fine sand keeps the fissures open. These cracks release trapped hydrocarbons, like oil and natural gas, which are then recovered.
Many companies that engage in fracking are extremely secretive about the chemicals and substances they use in fracking, arguing that the chemical constituents and mixtures are trade secrets and proprietary information. Some companies have voluntarily disclosed. North Carolina is considering a bill that proposes to jail anyone who discloses information about fracking chemicals. Other states actually require the disclosure of fracking chemicals, including Michigan.
In August 2011, environmental groups and individuals petitioned EPA to issue rules that would require the toxicity testing of fracking fluids and the submittal of health and safety studies by the petroleum industry. EPA granted the request in part. Instead of promulgating the rules, however, EPA decided to ask the public whether and how it should collect such data.
In its Federal Register notice, EPA solicited comments on how best to collect data related to the actual chemical makeup of fracking fluids and possible health and safety effects of such chemicals, specifically related to the following types of information:
- How should the data be collected, including whether it should be mandatory, voluntary or a combination of both and how should trade secrets be handled?
- Who should be required to report the data?
- How much data and how detailed should the data be?
- Can this information be collected by third-party providers and certified, rather than reporting directly to EPA?
- Should the focus be on larger business entities or should smaller businesses also be covered by the rule?
- What should be the mechanism for collecting and reporting the data?
- What are the best approaches for collecting and disclosing health and safety studies?
- Should there be incentives for the development and use of safer chemicals in fracking?
In the last few years, fracking has become a more common part of our energy vocabulary. While hydraulic fracturing is a process that the oil and gas industry has used for decades, much of it remains shrouded in mystery, especially the fluids used to do the fracking. Public input and demands are now forcing EPA to consider how to provide citizens information related to this now common and expanding energy recovery technology. EPA has asked that you provide to them your ideas and concerns, and you can do so before Aug. 18, 2014 at regulations.gov.
- Senior Attorney
A senior attorney in Plunkett Cooney’s Bloomfield Hills office, Saulius K. Mikalonis leads the firm's Environment, Energy and Resources Law and Cannabis Law industry groups.
Mr. Mikalonis focuses his practice on all aspects of ...
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