Use of Diesel Fuels in Hyrdraulic Fracturing Subject to UIC Permitting, Says EPA

US EPA sent a memorandum to its Regional Administrators as well as state agency directors transmitting new technical guidance clarifying the requirements under the Underground Injection Control (UIC) program for hydraulic fracturing activities involving diesel fuels.

The memorandum explains how under existing Safe Drinking Water Act (SDWA) requirements and EPA’s UIC regulations, any owner or operator who injects diesel fuels during hydraulic fracturing related to oil or gas operations must obtain a UIC Class II permit before injection. 

Injection of fluids through wells is regulated by the SDWA, although the 2005 Energy Policy Act exempted the injection of fluids or propping agents (“other than diesel fuels”) as part of hydraulic fracturing activities.   Thus, while hydraulic fracturing is generally not subject to UIC regulation, if diesel fuels are being injected as part of a hydraulic fracturing operation, a UIC permit is required.  Diesel fuels that are used in other capacities at well sites, e.g., as a component of drilling muds or in pipe joint compounds used in the well construction process, are not subject to UIC permitting.

Because the term “diesel fuel” was not defined by Congress, EPA’s memo announces that for UIC regulatory purposes, EPA is interpreting the term to refer to fluids that are associated with five specific Chemical Abstracts Services Registry Numbers (CASRNs):

  • 68334-30-5:     Fuels, diesel
  • 68476-34-6:     Fuels, diesel, No.2
  • 68476-30-2:     Fuel oil No. 2
  • 68476-31-3:     Fuel oil, No. 4
  • 8008-20-6:       Kerosene

It is important to note that EPA’s interpretation of the term “diesel fuels” does not include a de minimis threshold.  EPA explains that there is nothing in the statute that requires such a threshold and adds that the inclusion of a de minimis level would add regulatory complexity and uncertainty, when the agency’s goal in issuing the guidance is to increase certainty and simplicity.  Thus, UIC permit writers are expected to issue a Class II permit any time any amount of diesel fuels are planned for use in injection during hydraulic fracturing.

Kathy Milenkovski is an energy and environmental lawyer. She helps clients comply with complex state and federal regulatory programs and represents clients in litigation, appearing in administrative, state and federal courts.
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