Most of the heavy lifting to sort out the direction of hydraulic fracturing (“fracking”) regulatory practices continues to take place at the state and local levels, with federal agencies largely trying to play catch-up on what is a controversial issue. However, federal agencies did make some forward progress on the issue in the past two months. On May 10, EPA released a draft guidance document, “Permitting Guidance for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels (Underground Injection Control Program Guidance #84)”, clarifying EPA’s permitting requirements for hydraulic fracturing (“fracking”) operations under its underground injection control program. According to an EPA press release, the draft guidance “outlines for EPA permit writers, where EPA is the permitting authority, requirements for diesel fuels used for hydraulic fracturing wells, technical recommendations for permitting those wells, and a description of diesel fuels for EPA underground injection control permitting.”
The Energy Policy Act of 2005 explicitly prohibits EPA from regulating fracking except when “diesel fuels” are used as a component of the fracking fluid. Because of this limitation, defining what substances qualify as diesel fuels has been a key issue in determining the potential scope of EPA’s authority over fracking practices. For the draft guidance, EPA proposed what many consider a narrow definition of diesel fuels that is limited to six petroleum distillates as identified by specific Chemical Abstracts Service registry numbers.
EPA will be taking comments on the draft guidance through August 23, 2012. The draft guidance as well as the Federal Register notice outlining EPA’s request for comment on the document can be downloaded at http://amwa.net/DraftFrackGuide.
In what may serve as a benchmark for the broader oversight of fracking activities at the federal level, the U.S. Department of the Interior, Bureau of Land Management (BLM) issued a rule proposal on May 4 governing the fracking practices on public and Indian lands. BLM’s proposed rule requires public disclosure of chemicals used in the fracking process “with appropriate protections for proprietary information.” The two other major provisions in the draft rule focus on assuring well-bore integrity during operations and maintenance of a water management plan to handle flow-back waters. BLM’s press release, which includes links to the proposed rule and accompanying economic analysis, is available athttp://www.blm.gov/wo/st/en/info/newsroom/2012/may/NR_05_04_2012.html.