EPA Proposes Permitting Guidance for Diesel Fuels Use in Hydraulic Fracturing

On May 4, 2012, the U.S. Environmental Protection Agency (“EPA”) published draft UIC Program permitting guidance for oil and gas hydraulic fracturing activities using diesel fuels.

The Energy Policy Act of 2005 exempted hydraulic fracturing operations from requirements to obtain an underground injection control (“UIC”) permit under the federal Safe Drinking Water Act ("SDWA"), except when diesel fuels are used as a fracturing fluid. However, the Act did not define the term “diesel fuels.”

The proposed guidance attempts to provide clarity for EPA permit writers issuing UIC permits under the SDWA.

Environmental groups had lobbied for EPA to broadly define the term “diesel fuels” to include any material containing benzene, toluene, ethylbenzene, and xylene compounds (“BTEX”).

Industry advocated for a narrower, more traditional definition of diesel fuels. In the proposed guidance, EPA has adopted an approach based on the Chemical Abstract Service Registry Numbers (“CASRNs”) for diesel fuels.

In determining whether a hydraulic fracturing activity requires a UIC permit, EPA permit writers are to determine whether the injection fluid has any of the following six CASRNs:

  • 68334-30-5 Primary Name: Fuels, diesel Common Synonyms: Automotive diesel oil; Diesel fuel; Diesel oil (petroleum); Diesel oils; Diesel test fuel; Diesel fuels; Diesel Fuel No. 1; Diesel fuel [NA199311]; Diesel fuel oil; EINECS12 269-822-7
  • 68476-34-6 Primary Name: Fuels, diesel, no. 2 Common Synonyms: Diesel Fuel No. 2; Diesel fuels no. 2; EINECS 270-676-1, No. 2 Diesel Fuel
  • 68476-30-2 Primary Name: Fuel oil No. 2 Common Synonyms: Diesel fuel; Gas oil or diesel fuel or heating oil, light [UN1202] #2 Home heating oils; API No. 2 fuel oil; EINECS 270-671-4; Fuel Oil No. 2; Home heating oil No. 2; Number 2 burner fuel; Distillate fuel oils, light; Fuel No. 2; Fuel oil (No. 1,2,4,5 or 6) [NA1993];
  • 68476-31-3 Primary Name: Fuel oil, no. 4 Common Synonyms: Caswell No.13 333AB; Cat cracker feed stock; EINECS 270-673-5; EPA Pesticide Chemical Code 063514; Fuel oil no. 4; Diesel Fuel No. 4
  • 8008-20-6 Primary Name: Kerosene Common Synonyms: JP-5 navy fuel/marine diesel fuel; Deodorized kerosene; JP5 Jet fuel; AF 100 (pesticide); Caswell No. 517; EINECS 232-366-4; EPA Pesticide Chemical Code 063501; Fuel oil No. 1; Fuels, kerosine; Shell 140; Shellsol 2046; Distillate fuel oils, light; Kerosene, straight run; Kerosine, (petroleum); Several others
  • 68410-00-4 Primary Name: Distillates (petroleum), crude oil, Common Synonyms: Fuel, diesel (VDF) (EPA SRS14), Straight PWN diesel (EPA SRS), Aruba gas oil; EINECS 270-072-8 
The proposed guidance will be subject to public notice and comment.

The prepublication Federal Register notice has been posted on EPA’s website. Notice of the draft guidance was published in the Federal Register on May 10, 2012. The comment period ends on July 9, 2012.

This article was prepared by Heather M. Corken (hcorken@fulbright.com or 713 651 8386) and Kristen Roche (kroche@fulbright.com or 713 651 5303) from Fulbright's Environmental Law Practice.