EPA to provide webinar regarding permits for use of diesel in hydraulic fracturing
The EPA is in the process of developing guidance for the permitting of hydraulic fracturing using diesel fuel. The EPA will hold an "Informational Public Webinar" regarding such guidance on June 15, 2011 from 2 pm to 5 pm Eastern Daylight Time (1 to 4 pm Central; noon to 3 p.m. Mountain; 11 a.m. to 2 p.m. Pacific). The webinar is free and open to the public, but preregistration is required, and EPA is requesting that people preregister at least 3 days in advance.
The EPA also has posted on its website a couple of slide-presentation-type PDFs containing relevant information. One has basic information on underground injection control. The other document explains, among other things, that EPA's plan for developing guidance for permitting for fracking using diesel has the following timeline. EPA will hold stakeholder meetings in the Spring, produce draft guidance by Summer, accept public comments in the Fall, and then develop final guidance.
What is this all about?
Part C of the Safe Drinking Water Act concerns protection of underground sources of drinking water. It includes provisions for the regulation of underground injections, but the Act's definition of "underground injection" expressly excludes hydraulic fracturing operations in which diesel fuel is not part of the fracking fluid. This has the effect of exempting hydraulic fracturing from regulation under the SDWA, provided that the fracking fluid does not contain diesel.
Further, in the past, neither the EPA nor the States (with the exception of Alabama) have attempted to apply SDWA regulations to fracking operations that use diesel, even though those operations are not exempted from such regulations by the language of the SDWA statute. But last year, that changed. The EPA posted a statement on its website, stating that service companies that perform fracturing using diesel must first obtain a SDWA permit for an underground injection. Two industry groups have brought suit, challenging the EPA's statement. The industry groups argue that the EPA is imposing a new requirement and therefore effectively is imposing a new rule, but is doing so without going though the normal rule-making process required by the Administrative Procedures Act. More detail about this litigation is contained in my March 7, 2011 post.
Further, because the EPA and most States have never previously regulated fracking under the SDWA, there is uncertainty about what would be required in the permitting process. The EPA has stated it will provide guidance for such permitting.