EPA has no current plans to use FIFRA to increase oversight of hydraulic fracturing

In March 2013, the Deputy Director of the Antimicrobials Division of the United States Environmental Protection Agency (EPA) stated the agency is not considering using its authority under the Federal Insecticide, Fungicide & Rodenticide Act (FIFRA) to regulate hydraulic fracturing beyond mandated registration responsibilities.

The statement represents an effort by EPA to respond to industry concerns the agency was evaluating the use of FIFRA to expand its oversight of hydraulic fracturing operations and initiate enforcement actions against operators. The concern is understandable as FIFRA, unlike the Clean Water Act and Safe Drinking Water Act, does not contain an exemption for oil and gas activities.

The recent actions of federal and state regulators have fed into this anxiety by emphasizing the role of FIFRA in the regulation of hydraulic fracturing. For example, in its most recent set of National Enforcement Initiatives, EPA highlighted FIFRA as a major component of the regulatory toolbox supporting its increased oversight of oil and gas operations.

In October 2012, members of the Association of American Pesticide Control Officers (AAPCO), an association of state pesticide regulators, publicly questioned whether the use of biocides in fracturing fluids constituted a violation of FIFRA. Montana even went so far as to urge its oil and gas industry to collaborate with the state agricultural department to develop state-specific registration and labeling requirements to shield operators from potential EPA enforcement actions.

In this environment, it is understandable oil and gas operators have grown uneasy about their potential liability under FIFRA. The inclusion of biocides in hydraulic fracturing fluids is a common practice among operators to control algal and microbial growth. The commonly used biocides (e.g., acrolein or dazomet) are classified as pesticides and therefore regulated under FIFRA.

EPA, however, sees no present need to change labeling provisions or otherwise expand its use of FIFRA to oversee extraction operations. It remains to be seen if this position will change as state regulators press for further evaluation of the adequacy of biocide labeling provisions and the need for special certification requirements for their use in hydraulic fracturing fluids.

The ultimate resolution of this issue may be influenced by EPA’s Study of Hydraulic Fracturing and Its Potential Impact on Drinking Water Resources. The drinking water study plan includes an assessment of biocides utilized in hydraulic fracturing fluids. EPA anticipates the final results of this study will be released in 2014. The results could have a significant impact on the regulation of hydraulic fracturing in the United States, including the role of FIFRA.

This post was prepared by Heather Corken (hcorken@fulbright.com or 713 651 8386) and Ted Bosquez (tbosquez@fulbright.com or 724 416 0423) from Fulbright's Environmental Law Practice Group.