By Patrick D. Joyce, Philip L. Comella, and William R. Schubert
The U.S. Environmental Protection Agency’s Office of Inspector General, in a February 5, 2014 memorandum, stated that it intends to evaluate how federal and state regulation of the hydraulic fracturing (fracking) industry has protected water resources and managed potential threats. “EPA’s Oversight of Hydraulic Fracturing Impact on Water Resources.”
Currently the states are the primary regulators of the fracking industry. While the federal government has had limited involvement in fracking regulation, the EPA has been conducting impact studies on fracking for several years.
On a related note, the EPA just released its revised guidance for fracking activities that use diesel fuels. 79 Fed. Reg. 8451 (February 12, 2014). The Revised Guidance: Permitting Guidance for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels: Underground Injection Control Program Guidance #84 (EPA 816-R-14-001, February 2014), indicates the Agency’s position on how the Underground Injection Control “Class II” requirements, authorized under the Safe Drinking Water Act, should apply to fracking operations using diesel fuels. The Guidance is intended to be taken along-side of another concurrently issued memorandum, “Implementation of the Safe Drinking Water Act’s Existing Underground Injection Control Program Requirements for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels.”
In some states the use of diesel fuels in fracking operations is already heavily regulated – or prohibited altogether (see, e.g., § 245.870 of the draft Illinois regulations, which we previously blogged about). Because the Safe Drinking Water Act specifically excludes the injection of fluids or propping agents other than diesel fuels from regulation, the new EPA guidance will have little or no impact on the fracking activities in those states.