EPA and gas drillers square off in court about diesel in frac fluid

Do frackers have to get permits to inject diesel fuel into gas wells? The EPA says yes -- a position that's come under industry attack, via a lawsuit that's currently working its way through federal court.

Gas drillers using hydraulic fracturing techniques to recover shale gas are largely exempt from regulation under the Safe Drinking Water Act (SDWA). But the EPA has asserted some regulatory authority over the use of diesel fuel in frac fluid -- a process that, the agency claims, requires a permit under the SDWA. From www.epa.gov:

While the SDWA specifically excludes hydraulic fracturing from UIC [Underground Injection Control] regulation under SDWA § 1421 (d)(1), the use of diesel fuel during hydraulic fracturing is still regulated by the UIC program. Any service company that performs hydraulic fracturing using diesel fuel must receive prior authorization from the UIC program. Injection wells receiving diesel fuel as a hydraulic fracturing additive will be considered Class II wells by the UIC program.

In August, the gas industry, represented by the Independent Petroleum Association of America and U.S. Oil and Gas Association, filed a lawsuit against the EPA, claiming that the policy on their website (quoted above) had not gone through the proper process for drafting regulations.

Last week, a large international law firm that often represents industry in oil and gas law issued a press release about an update in the case: On October 29, the EPA filed a motion to dismiss the lawsuit. The D.C. Circuit court has not announced a timeline for its decision.

This is administrative law -- by nature, it's dry, technical, and revolves around details that seem absurdly nitpicky to the average non-lawyer. But there's much at stake here. The lawsuit examines one central question: Is the EPA's stated policy on diesel fuel in frac fluid a new regulation, or just an explanation of existing law under the Safe Drinking Water Act? If the gas industry prevails, the EPA will probably have to go back to the drawing board, and go through a more extended rulemaking process -- drafting regulations, soliciting public comment -- before they can assert their authority to regulate diesel in frac fluid.

Here's the press release:

EPA Confirms Its Position That Hydraulic Fracturing With Diesel Requires an Underground Injection Permit

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