ENVIRONMENTAL GROUPS SEEK A DECISION TO ADD OIL AND GAS EXPLORATION WELLS TO THE LIST OF FACILITIES REQUIRED TO REPORT RELEASES OF TOXIC CHEMICALS TO THE TOXICS RELEASE INVENTORY
Several
environmental groups have sued EPA, seeking a decision on a 2012 petition
(“2012 Petition”) they filed with the agency, which requests that EPA add oil
and gas exploration wells to the list of facilities required to report releases
of toxic chemicals to the Toxics Release Inventory (“TRI”) pursuant to the
Emergency Planning and Community Right-to-know Act (“EPCRA”), 42 U.S.C. §
11023(b). The plaintiffs allege that EPA’s delay in responding to their 2012
Petition is unreasonable under the Administrative Procedures Act and ask the
Court to order EPA to issue a final response to their 2012 Petition within
sixty (60) days.
EPCRA was
enacted as a response to serious chemical releases at major industrial
facilities, including the 1984 disaster in Bhopal, India, in which a gas leak
at a chemical manufacturing plant killed thousands of local residents, and a
release from a similar plant in West Virginia the following year. EPCRA
requires the owners and operators of certain facilities to report the amounts
of chemicals the facility releases each year. 42 U.S.C. § 11023(a), (g). The
TRI annual reporting requirements apply to owners and operators of facilities
that: (1) have ten or more full-time employees; (2) are in a TRI-listed industrial
sector; and (3) have manufactured, processed, or otherwise used one of the
TRI-listed toxic chemicals in excess of the listed threshold quantity during
the calendar year. 42 U.S.C. § 11023(b).
EPA first
considered adding the oil and gas extraction industry to the TRI program in
1996. At the time, the Agency declined to subject the industry to the TRI
requirements in part due to the fact that a single well would rarely meet the
requirements for a “facility” under the EPCRA: “This industry is unique in that
it may have related activities located over significantly large geographic
areas. While together these activities may involve the management of
significant quantities of EPCRA section 313 chemicals in addition to requiring
significant employee involvement, taken at the smallest unit (individual well),
neither the employee nor the chemical thresholds are likely to be met.” 61 Fed.
Reg. 33,588, 33,592 (June 27, 1996). EPA stated that it would address the issue
again in the future. Id.
The 2012
Petition seeks to sidestep EPA’s reservations by broadening the definition of a
facility to go beyond individual wells. Industry
has raised concerns that such a definition improperly attempts to aggregate a
vast number of non-contiguous and non-adjacent sites in its attempt to create
“facilities” to meet the TRI reporting thresholds. Adding the industry to the TRI program, it is
argued, would strain the concept of a facility and produce limited benefits
while imposing an administrative burden on both the regulated industry and EPA.
EPA’s
response to the lawsuit is due March 9, 2015.
