Last week, the US Environmental Protection Agency (EPA) issued final Permitting Guidance for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels under its Underground Injection Control (UIC) program.  The final guidance comes more than a year and a half after EPA issued the initial draft, concluding that fracking operations using diesel fuel as a fracking fluid or propping agent were subject to UIC Class II permitting requirements (see May 8, 2012, post).  Fracking activities not using diesel fuels are excluded from UIC requirements under the Safe Drinking Water Act pursuant to the 2005 Energy Policy Act.

One of the major questions in the draft guidance was how to determine when the guidance would apply, i.e. what constitutes “diesel fuels” under the SDWA.  EPA originally proposed to use six Chemical Abstracts Service Registry Numbers (CASRNs) commonly identified as diesel fuels.  In the final guidance, EPA retained the CASRN-based method for identifying “diesel fuels” but reduced the number down to five.  EPA concluded that the term “diesel fuels” was intended to refer to only those substances with the term “diesel fuel”  as their primary name or synonym in commonly used chemical registries.  Based on this criteria, EPA eliminated the sixth CASRN, described as petroleum distillates/crude oil.  The remaining CASRNs are described as diesel fuel, diesel fuel no. 2, fuel oil no. 2, fuel oil no. 4 and kerosene.

EPA noted that the use of diesel fuels as other than fracking fluids or proppants, such as in well construction, is not subject to UIC requirements.  However, EPA refused to apply a de minimis threshold for the fracking activities where the guidance does apply.  EPA also confirmed that fracking activities using diesel fuels are subject to the Class II UIC well requirements for oil and gas wells, including enhanced recovery methods such as fracking, as opposed to other UIC well classes. 

EPA encouraged its Regional Offices to work with state programs and the Bureau of Land Management to implement the permitting guidance and inform owners of the requirements.  EPA also indicated that, because its guidance is based on best practices generally, states and tribes responsible for permitting fracking activities should consider the recommendations in the guidance for the protection of public health.  It seems that EPA intends for this guidance to set the standard for the protection of drinking water in particular with respect to fracking activities.

Co-authored by Michael N. Mills and Robin B. Seifried.