Obama Administration Responds to Pressure on Fracking, Revises Permitting Rules on Using Diesel Fuel in Gas Drilling

EPA to Decide Legality of Mines on a 'Case-by-Case Basis'

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An aerial view of one fracking site in West Virgina

By Glynn Wilson

WASHINGTON. D.C. — To clear up a legal controversy about diesel fuel in methane gas mining, the Obama administration released revised rules on underground injection wells that use diesel fuels in hydraulic fracturing operations, commonly referred to as the controversial method of “fracking.”

To get around the “Halliburton Loophole” granting fracking operations a nearly blanket exemption from having to comply with existing environmental laws and regulations, environmental lawyers have used the avenue of diesel fuel to try to get at the frackers legally.

The U.S. Environmental Protection Agency is now releasing the guidance on the issue to clarify how companies can comply with a law passed by Congress in 2005, which exempted hydraulic fracturing operations from the requirement to obtain a Underground Injection Control permit — except in cases where diesel fuel is used as a “fracturing fluid.”

“Responsible development of America’s unconventional oil and natural gas resources offers important economic, energy security and environmental benefits,” the agency says in the release announcing the new rules. “The EPA is working with states and other key stakeholders to help ensure that extraction of these resources does not come at the expense of public health and the environment.”

The agency putting forward several initiatives to do just that with the new rules for the sake of “regulatory clarity with respect to existing laws.”

Although developed specifically for hydraulic fracturing where diesel fuels are used, many of the guidance’s recommended practices are consistent with best practices for hydraulic fracturing in general, including those found in state regulations and model guidelines for hydraulic fracturing developed by industry and stakeholders. States and tribes responsible for issuing permits and/or updating regulations for hydraulic fracturing may find the recommendations useful in improving the protection of underground sources of drinking water and public health.

The agency also released an interpretive memorandum. It clarifies the law by saying class II UIC requirements do in fact apply to hydraulic fracturing activities using diesel fuels. It defines the statutory term diesel fuel by reference to five chemical registry numbers.

“The guidance outlines for EPA permit writers, where EPA is the permitting authority, existing class II requirements for diesel fuels used for hydraulic fracturing wells, and technical recommendations for permitting those wells consistently with these requirements,” EPA says. “Decisions about permitting hydraulic fracturing operations that use diesel fuels will be made on a case-by-case basis, considering the facts and circumstances of the specific injection activity and applicable statutes, regulations and case law.”

A draft guidance plan was put forward in May 2012, followed by a 105 day public comment period.

Read the new rules here.

© 2014, Glynn Wilson. All rights reserved.