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COMMENTS: Environmental Protection Agency proposal to add natural gas processing facilities to Toxic Release Inventory

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May 5, 2017

Mr. David Turk
Regulatory Development Branch
Office of Air Pollution and Toxics (7410M)
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Washington, D.C.  20460

Re: Proposed Addition of Natural Gas Processing Facilities to the Toxics Release Inventory

Dear Mr. Turk:

The Western Governors’ Association (WGA) appreciates the opportunity to provide comments on the Environmental Protection Agency’s (EPA) proposal to add natural gas processing (NGP) facilities to the scope of sectors covered by reporting requirements of the Toxic Release Inventory(1) (TRI) (82 FR 1651, January 6, 2017).  We appreciate the Agency’s extension of the comment period until May 6, 2017 (82 FR 12924, March 8, 2017).

STATEMENT OF INTEREST

WGA represents the Governors of 19 western states and three U.S.-flag islands.  The association is an instrument of the Governors for bipartisan policy development, information exchange and collective action on issues of critical importance to the western United States.

Western states have a long history of regulating the oil and natural gas industry for protection of public health and the environment.  Western Governors are unified in their view that agencies should consult with states in a meaningful way and on a timely basis when considering new regulations that would affect western states and their citizens.  See WGA Policy Resolution 2017-01, Building a Stronger State-Federal Relationship, which is attached for your reference and incorporated in these comments by reference.

EPA PROPOSAL

EPA has proposed to list sectors of the Natural Gas Liquid Extraction Industry(2) on the TRI as NGP facilities.  EPA has estimated that approximately 517 facilities in the lower 48 states are defined as NGP facilities falling under North American Industry Classification System Code (NAICS Code) 211112, and, that of this number, roughly 282 would meet the 10-employee threshold at or above which TRI reporting would become mandatory.  EPA considers three additional factors when deciding whether to add an industrial sector to the scope of industries covered by the TRI(3):   

  • Chemical Factor:  Whether one or more toxic chemicals are reasonably anticipated to be present at facilities within the candidate industry group;
  • Activity Factor:  Whether facilities within the candidate industry group ‘‘manufacture,’’ ‘‘process,’’ or ‘‘otherwise use’’ toxic chemicals; and
  • Information Factor:  Whether facilities within the candidate industry group can reasonably be anticipated to increase the information made available pursuant to EPCRA section 313, or otherwise further the purposes of EPCRA section 313.

Western Governors understand that the addition to the TRI as contemplated will require all NGP facilities to submit annual TRI reports evaluating their operations to determine whether reporting thresholds for various chemical substances have been exceeded.  Further, NGP facilities meeting the 10-employee threshold would also be required to undertake an evaluation of the gas processed at those facilities to determine whether TRI chemical substances exceed applicable EPA limits.

CONCERNS / RECOMMENDATIONS OF WESTERN GOVERNORS

State Consultation

Substantive consultation with Western Governors was not sought by EPA during development of this proposal, despite western states’ role as primary regulators of the oil and natural gas industry.  EPA should engage Western Governors and state regulators to determine the necessity of adding NGP facilities to the TRI, especially taking into account current state regulations.  Should EPA find justification for this new regulation, it should then work with state partners to ensure federal regulations work in concert with state regulations.

TRI Contextual Considerations

In general, the TRI lacks the necessary context with which to determine the ultimate effect that included substances have on human and environmental health.

  • EPA has not demonstrated that including various types of facilities on the TRI has any additive benefit to environment.
  • The TRI also does not consider contextual considerations, including:
    • Migration (or lack thereof) of monitored chemical substances;
    • Short-term and long-term atmospheric concentration of chemical substances emitted from TRI-covered facilities; and
    • Information about the relative toxicity of covered substances.

Financial Considerations

Protection of human and environmental health is a primary and overriding concern for Western Governors.  Nevertheless, reporting requirements described in this comment letter and in EPA’s proposed rule may significantly impede natural gas operations in the West if NGP facilities are added to the TRI.  EPA has estimated that the proposed inclusion of NGP facilities on the TRI would cost the natural gas industry up to $13.5 million for the first year of reporting, and as much as $7.3 million per year thereafter.  At a time of economic uncertainty for the oil and natural gas industry – a key element of many Western states’ economies – state and federal regulators should take a cautious and measured approach to new regulations with economic implications.

CONCLUSION

EPA should thoughtfully reexamine the TRI program to determine if it currently provides communities with accurate and useful information to protect human health and the environment.  The agency should also reevaluate its proposal to add NGP facilities to the TRI.  If EPA determines that adding such facilities to the program is necessary, it should work with Western Governors and state regulators to ensure that new federal regulations work in concert with state regulations and do not create undue financial burdens for NGP facilities.

Sincerely,

Steve Bullock
Governor of Montana
Chair, WGA

Dennis Daugaard
Vice Chair, WGA
Governor of South Dakota

1) Established under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).
2) North American Industry Classification System code 211112.
3) Proposed rule, Addition of Natural Gas Processing Facilities to the Toxic Release Inventory (TRI), section IV(A). Page 1653. Threshold applies to full-time employees or equivalent.

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