EPA defines “diesel” in hydraulic fracturing under the Safe Drinking Water Act

On February 12, 2014, the Environmental Protection Agency (“EPA”) published notice in the Federal Register of final guidance implementing the Safe Drinking Water Act (“SDWA”) requirements for oil and gas hydraulic fracturing operations utilizing diesel fuels. The final guidance is a revised version of draft guidance issued by EPA in May 2012, on which EPA received hundreds of comments. One of the main purposes of the new guidance is to clarify which materials may qualify as diesel fuels. The guidance also recommends to permit writers the factors EPA to consider when issuing permits for hydraulic fracturing operations that use diesel fuels to ensure protection of underground sources of drinking water (“USDWs”).

Under 2005 amendments to the Safe Drinking Water Act, the definition of “underground injection” excludes the underground injection of fluids or propping agents “other than diesel” for hydraulic fracturing operations. 42 U.S.C. § 300h(d). Hydraulic fracturing operations are therefore exempt from the requirement to obtain an underground injection control (“UIC”) permit unless the injectate contains diesel. According to the final guidance, hydraulic fracturing activity requires a UIC permit if any portion of the injectate contains “diesel fuels.” The type of UIC permit required would be a Class II permit.

Through an analysis of data on hydraulic fracturing fluids on FracFocus, EPA found that diesel fuel was used in under two present of the wells for those posted to the site in 2012. Industry representatives had expressed concern, however, that EPA’s original intention (before the draft guidance was issued) was to interpret the term “diesel fuels” to be broad enough to cover substances not traditionally considered diesel, such as highly refined mineral oils and vegetable oil.

In the final guidance, EPA interprets the statutory term “diesel” to mean any of the following five Chemical Abstract Service Registry Numbers (“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 [United Nations-North America (UN/NA) number 1993]; Diesel fuel oil; European Inventory of Existing Commercial Chemical Substances (EINECS) 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] No. 2 Home heating oils; API No. 2 fuel oil; EINECS 270-671-4; Fuel oil No. 2; Home heating oil No. 2; No. 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.14 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.”
In the draft guidance issued in May of 2012, EPA had listed six CASRNs. The sixth CASRN was not included in the final guidance. It was:
  • 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 
Industry representatives had expressed concern about the inclusion of this CASRN for petroleum distillates in the definition of diesel because it was overly broad and included many substances not considered diesel. See, e.g., API's Comment to Draft Guidance at page 23.

EPA’s UIC Directors will implement the guidance directly in some states, such as Pennsylvania and New York, where EPA is the permitting authority for Class II wells. The guidance states that EPA Regional offices directly implementing the existing UIC Class II Program are the “primary audience” for guidance. Nevertheless, as the guidance acknowledges, many states have responsibility for implementing the Class II UIC program. Although the guidance purports to make only “non-binding recommendations,” the guidance may create uncertainty some states with UIC primacy, which may need to evaluate their programs and amend state law, regulations, or guidance to comply with EPA’s interpretations of the SDWA reflected in the final guidance.