EPA Issues Final Guidance on Fracking When Injected Fluid Includes Diesel Fuels

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By Alan Kovski

Feb. 11 --The Environmental Protection Agency released its final guidance Feb. 11 on hydraulic fracturing when diesel fuels are included in the fracking fluid for an oil or natural gas well.

The guidance instructs federal and state regulators on the extra layer of permitting that will be needed if a company doesn't avoid using diesel fuels in the fluid. Industry officials have said they can avoid diesel fuels for fracking, but that will depend on how the agency handles the definition of “diesel fuels” in the guidance.

The final rule's definition of “diesel fuels” is based on five Chemical Abstracts Service (CAS) registry numbers covering a set of similar substances variously called automotive diesel fuels, heating oil, marine diesel fuels, jet fuel, kerosene, No. 4 fuel oil and distillate fuel oils, as well as a refinery intermediate substance called catalytic cracker feedstock.

The registry numbers are CAS 68334-30-5, CAS 68476-34-6, CAS 68476-30-2, CAS 68476-31-3 and CAS 8008-20-6.

That reflected the guidance as proposed in 2012, except that the proposed version included also a relatively obscure substance sometimes called Aruba gas oil.

No “de minimis” limit on applicability is included in the guidance.

The guidance is for permit writers as part of the Underground Injection Control program, a program of the Safe Drinking Water Act. When Congress wrote the Energy Policy Act of 2005, it exempted hydraulic fracturing from the UIC program except when diesel fuels are used.

The permitting requirements for Class II wells in the UIC program will be applied to wells where hydraulic fracturing is used. The guidance also said permit writers “have discretion to consider alternative approaches that are consistent with statutory and regulatory requirements.”

Hydraulic fracturing involves the pressurized injection of water, sand and chemical additives into geologic layers to create fractures through which oil or gas can flow. The chemical additives include such things as friction reducers, biocides, corrosion inhibitors and chemicals to control fluid viscosity.

Limited Diesel Fuel Use

Oil and gas companies commonly use fracking in the great majority of onshore U.S. oil and gas wells, especially those in shale rock. The EPA said a check of the FracFocus website, where companies report their use of the well stimulation technique, indicated diesel fuels are used in less than 2 percent of cases.

Industry representatives and state officials criticized the proposed guidance as unnecessary, given the fact that hydraulic fracturing has been regulated for decades. They also said the guidance could conflict with the delegation of regulatory authority to some states .

The UIC program, like other parts of the Safe Drinking Water Act and like the Clean Water Act, allows for delegation of “primacy” to state regulators for applying the law.

Industry criticism continued Feb. 11 in reaction to the final rule.

Lee Fuller, vice president of government affairs at the Independent Petroleum Association of America, issued a statement saying: “This appears to be a solution in search of a problem: Based on actual industry practices, diesel fuel use has already been effectively phased out of hydraulic fracturing operations. But by perpetuating this regulatory process, the rule threatens the primacy of states' underground injection control programs.”

Fuller also was troubled by the broad definition of diesel fuels. “The guidance is also overly broad, because it covers more than just diesel,” he said. “EPA needs to withdraw the entire rule and start over based on reality.”

Diesel Use Worries

Many environmental activists and some Democrats in Congress wanted regulations reaching farther than what was proposed in 2012, and some of that criticism was heard again in reaction to the final guidance.

“Despite the fact that diesel is clearly being used in fracking, oil and gas companies continue to deny using diesel. The EPA should follow through with a formal rulemaking,” said Jennifer Krill, executive director of the activist group Earthworks, in a statement issued Feb. 11.

The EPA guidance was praised in a joint statement from Rep. Henry Waxman (D-Calif.), ranking member of the House Energy and Commerce Committee, and Rep. Diana DeGette (D-Colo.).

“While today's guidance was a long time coming, I am glad to see that the EPA recommends robust oversight whenever diesel fuels are used for fracking,” DeGette said.

Obama administration officials from both the EPA and the Interior Department have said repeatedly that there has never been a single confirmed case of contamination of drinking water as a consequence of hydraulic fracturing.

The next federal regulatory step on hydraulic fracturing likely will be a final rule from Interior's Bureau of Land Management on regulations for wells where fracturing is conducted on federal lands. The EPA also is conducting a long-term study of the potential risks to drinking water from fracking.

To contact the reporter on this story: Alan Kovski in Washington at akovski@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The EPA final guidance on hydraulic fracturing when diesel fuels are used is available at http://1.usa.gov/1m4b7FI.

More information on the final guidance, including an accompanying EPA memorandum to permit writers and a Federal Register notice of availability of the guidance, can be found on the EPA website at http://1.usa.gov/LSIVVt.

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