In January 2014, sixteen environmental advocacy and grassroots organizations filed a supplement to a petition with the U.S. Environmental Protection Agency (EPA) to add the oil and gas extraction industry to the list of facilities required to report under the Toxic Release Inventory (TRI). Historically, the oil and gas extraction industry was excluded from reporting under TRI. While this industry reports releases under other pollutant release and transfer programs in other countries, such as the Canadian National Pollutant Release Inventory (NPRI) and the European Pollutant Release and Transport Register (E-PRTR), it is uncertain whether the EPA will require this industry to report under TRI in the United States. As the EPA considers the petition, there are critical steps the oil and gas industry can take to ensure compliance in the event that the new rule is passed. Specifically, facilities could begin building systems to accurately calculate and track pollutant release and transfer data.

Overview of the Oil & Gas TRI Petition

The January 2014 petition was a supplement to a 2012 petition to add the oil and gas extraction industry (Standard Industrial Classification Code 13) to the list of facilities required to report under TRI. The petitioners argued that this industry should be required to report under TRI because:

• TRI-listed chemicals (e.g., toluene, hexane, benzene, xylenes, ethylene glycol, methanol, ethylbenzene, and 2,2,4-trimethylpentane) are reasonably anticipated to be present at facilities in the industry group;
• the industry routinely manufactures, processes, or otherwise uses these chemicals throughout its processes at quantities that exceed reporting thresholds; and
• adding the industry to the TRI will increase the amount of information on chemical releases that is available to the public.

The original and supplement petitions include information on the number of facilities potentially impacted and the TRI substances released. The 2014 supplemental petition focused more on processing facilities than actual drilling activities or downstream processing.

The TRI program scheduled a listening session with petitioners in July 2013 where topics were covered including chemical and activity factors and shortcomings in existing disclosure rules. In February 2014, the agency met with the American Petroleum Institute and explained that it has not made a formal request for information. However, the agency emphasized that interested parties can submit their own views and information for any petition that is submitted.

As the agency ponders whether to require TRI reporting for the oil and gas extraction industry, it will likely consider a variety of comments and information including the cost of compliance, number of facilities impacted, and benefits of requiring the industry to report under TRI.

E-PRTR and NPRI Reporting

The crude petroleum and natural gas extraction industry (Nomenclature of Economic Activities Code 6) in Europe is required to report under the E-PRTR and several PRTR programs. In 2011, 173 facilities reported pollutant releases and waste transfers to the E-PRTR. Pollutant releases and transfers for this industry included:

• 1,482 tonnes of toluene released into the water, a decrease from 1,590 tonnes in 2010;
• 1,864 tonnes of benzene released into the water, a decrease from 2,258 tonnes in 2010;
• 10 tonnes of benzene release into the air, a decrease from 11.6 tonnes in 2010; and
• 103 tonnes of ethylbenzene released into the water, a decrease from 156 tonnes in 2010.

Under the Canadian NPRI, facilities in the oil and gas extraction industry (North American Industry Classification System 2011) are required to report. NPRI releases in 2012 for this industry included:

• 69 tonnes of toluene released into the water, an increase from 33 tonnes in 2011;
• 118 tonnes of benzene released into the water, a decrease from 132 tonnes in 2011;
• 189 tonnes of benzene released into the air, an increase from 158 tonnes in 2011; and
• 1.9 tonnes of ethylbenzene released into the water, a decrease from 2.3 tonnes in 2011.

As shown, oil and gas extraction facilities in EU member states and Canada have already put into place measures to report pollutant releases and waste transfers. Facilities in the industry that are already reporting pollutant releases in other countries could provide insight for companies in the U.S. in the event they are required to report to TRI.

Tips to Ensure Compliance

Given the uncertainty regarding future TRI reporting in the United States, it may be premature for potentially affected facilities to start implementing procedures to report to the EPA. However, there are some key steps the industry can consider to ensure effective compliance in the event that TRI reporting is eventually required such as:

• thoroughly understanding the potential legal requirements;
• collecting accurate data on listed chemicals used and released;
• analyzing and verify data; and
• analyzing the resources and costs required to establish corporate or facility programs to collect and analyzing chemical data and compile TRI reports.

Conclusion

EPA’s final decision on whether it will add the oil and gas extraction industry to the list of facilities required to report under TRI may be months or one year away, the timetable is unclear. What is certain is that many facilities in this sector are already required to report pollutant emissions in other countries. The insight gained from these existing reporting efforts could be used to calculate accurate cost estimate for U.S. TRI compliance and form the basis for submitting comments on the proposed petitions.

More Information

Canadian National Pollutant Release Inventory, available at https://www.ec.gc.ca/inrp-npri/default.asp?lang=En&n=F6300E68-1.

European Pollutant Release and Transfer Register available at http://prtr.ec.europa.eu/Home.aspx.

Notes from Meeting with APR Regarding EIP Petition to TRI, U.S. Environmental Protection Agency, 25 February 2014 available at https://federalregister.gov/a/2013-31484.

Petition to Add the Oil and Gas Extraction Industry, Standard Industrial Classification Code 13, to the List of Facilities Required To Report under the Toxics Release Inventory, Environmental Integrity Project et al., Docket ID No. EPA-HQ-TRI-2013-0281, 24 October 2012, available at: https://federalregister.gov/a/2013-31484.

Petitioners’ Meeting Agenda for 07-29-2013 Listening Session with USEPA, Environmental Integrity Project, et al., 29 July 2013 available at https://federalregister.gov/a/2013-31484.

Supplement to Petition to Add the Oil and Gas Extraction Industry, Standard Industrial Classification Code 13, to the List of Facilities Required to Report under the Toxics Release Inventory, Environmental Integrity Project et al., Docket ID No. EPA-HQ-TRI-2013-0281, 30 January 2014, available at: https://federalregister.gov/a/2013-31484.

About the Author

Jonathan Nwagbaraocha, Esq. is an EHS Consultant at Enhesa, a global EHS regulatory consultancy firm based in Brussels, Belgium. At Enhesa, he focuses on environmental and occupational health and safety laws and regulations in the U.S. and Nigeria. Prior to joining Enhesa, he worked as a family advocate attorney at the Coalition to End Childhood Lead Poisoning where he represented families with lead-poisoned children and assisted in researching and drafting legislation related to unsafe residential and occupational exposure to lead. He holds a B.A. in Environmental Science and Policy from Duke University and a joint J.D. and master’s in public policy from the University of Maryland with a concentration in environmental law and policy. He has been a member of the Maryland Bar since December 2005.

Photograph: Oil by Iancu Justin, Ploiesti, Prahova, Romania.

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