Senators write EPA over broad diesel definition for fracing

Four US senators expressed concern about the US Environmental Protection Agency’s possible plans to regulate hydraulic fracturing under the Safe Drinking Water Act (SWDA) when diesel fuel is used.

“From a practical standpoint, a key issue is whether EPA’s actions will cause unnecessary confusion and open the door for states to lose their primacy for [underground injection control (UIC)] permitting programs,” the lawmakers said in a Dec. 21 letter to EPA Administrator Lisa P. Jackson.

James M. Inhofe (R-Okla.), the Environment and Public Works Committee’s ranking minority member; Lisa Murkowski (R-Alas.), the Energy and Natural Resources Committee’s ranking minority member; and E&NR Committee members Mary L. Landrieu (D-La.) and John Hoeven (R-ND) signed the letter.

They said the 2005 Energy Policy Act clarified the SDWA to specifically exclude from the UIC definition’s scope “the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”

“A close reading of this provision clearly demonstrates that Congress intended to keep primary authority for the regulation of [fracing] in energy production with the states, while addressing the narrow issue of diesel fuel use in [fracing],” the senators told Jackson.

Diesel fuel is a component of some fracturing fluids although it is not used as an additive in all hydraulic fracturing operations.

Reversed position

They said that before EPACT’s passage, EPA held that SDWA never was intended to regulate fracing, and the agency took no action to implement discretionary authority it had been granted.

EPA reversed its position last year, however, beginning with a web site notice that it would consider all fraced wells where diesel was used Class II wells under the SDWA UIC program, they continued.

“We believe the UIC Class II wells for which EPA is developing guidance are a strange fit for hydraulic fracturing regulation,” the senators said. “As you know, Class II injection wells are used to dispose of fluids associated with oil and gas production, to inject fluids for enhanced oil recovery, or for the storage of liquid hydrocarbons.”

They said several red flags have been raised about how EPA is proceeding, including a presentation on the agency’s web site, which said it is considering a diesel fuel standard from 1991 that was meant for diesel engines and has been amended 47 times. A broad definition also might capture mineral oil and other substances which are not actually diesel fuel, they warned.

The senators urged EPA to proceed carefully as it contemplates greater federal regulation of diesel in fracing.

Lawmakers also asked EPA to consider input from all stakeholders to assure that any new regulations do not unnecessarily harm US energy producers. New EPA guidance on the subject could appear as soon as January 2012, they said in a separate statement on the Environment and Public Works Committee’s minority web site.

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