On February 11, 2014, the EPA released its long awaited revised permitting guidance for wells that use diesel fuels during hydraulic fracturing activities. The guidance details the EPA's view on how to implement provisions of the Energy Policy Act of 2005 which amended the Safe Drinking Water Act (SDWA) definition of "underground injection" to specifically exclude the "underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities."
The guidance states that Class II UIC requirements apply to hydraulic fracturing activities that use diesel fuels. It further defines the statutory term "diesel fuel" by reference to the following five chemical abstract services registry numbers:
- 68334-30-5
- 68476-34-6
- 68476-30-2
- 68476-31-3
- 8008-20-6
The guidance also provides requirements and recommendations to EPA staff on how hydraulic fracturing activities should be permitted under the UIC Class II regulations. These include, among other things, the information required to be submitted with permit applications, permit duration, closure requirements, well construction, integrity testing, monitoring and reporting, public notice, financial responsibility and environmental justice.
Some energy industry observers believe the OMB's approval of the diesel guidance may not have a drastic effect on operations as the exclusions in the Energy Policy Act led to many energy companies phasing out the use of diesel fuels in hydraulic fracturing. The guidance does, however, serve to illustrate the EPA's view on how it might regulate hydraulic fracturing operations in the event Congress ever repealed the limitation on the agency's SDWA authority.
The press release accompanying the guidance stated that the "EPA is moving forward on several initiatives, such as the diesel guidance, to provide regulatory clarity with respect to existing laws and using existing authorities where appropriate to enhance public health and environmental safeguards."
Media Coverage Resources:
"Hydraulic Fracturing Under the Safe Drinking Water Act"
"OMB Approves EPA's Diesel Fracking Guide, Clearing Path For Release" (Subscription required)
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