U.S. EPA is contesting reports that it changed the rules for hydraulic fracturing without notice or comment.
Industry groups protested and filed a legal action against EPA after it posted information on its website explaining how hydraulic fracturing would be regulated under the Safe Drinking Water Act when diesel is mixed into the fracturing fluid. They said the language imposed new rules on the industry without proper process, making it difficult to comply (Greenwire, Jan. 19).
But EPA officials say they were simply restating existing law.
"The information on EPA's website is nothing more than a statement of law," said an EPA statement to E&ENews PM provided by an agency spokeswoman. "Formal public notice and comment is not required because the Agency's statements do not impose new legal obligations, it only summarizes a well-known, six-year old exemption made to the Safe Drinking Water Act."
The statement continued: "EPA is learning that diesel is being widely used in the Hydraulic Fracturing process."
Industry officials say the language went well beyond a simple statement of existing law.
"It is wholly inappropriate to suggest that EPA need merely notify on a website that it has instituted a regulatory standard five years after the Energy Policy Act with no notice or comments from the public, particularly where there are no regulations dealing with the technology," said Lee Fuller, vice president of government relations for the Independent Petroleum Association of America.
Sometime last summer, EPA added a "regulation" tab to the hydraulic fracturing section on its webpage. Energy lawyer Matt Armstrong of the firm Bracewell & Giuliani noticed it while scanning the website for other information on fracturing.
The regulation tab noted that Congress had written in 2005 that hydraulic fracturing with diesel fuel is exempted from the underground injection control provisions of Safe Drinking Water Act. The new language also explained how such wells would be regulated, stating that they "will be considered Class II wells by the UIC program."
"While the Energy Policy Act of 2005 may establish EPA's authority to regulate diesel fuel use in hydraulic fracturing operations under the UIC program, it does not create that regulation," Armstrong said. "Such regulation requires notice and an opportunity for public comment; that's the position of the industry now and that was the public position of the agency until June 2010."
The diesel language was posted amid a contentious debate about fracturing, a process in which chemical-laced water is injected underground at high pressure to crack rock formations and release oil or gas.
The diesel issue flared up early last year. In January, the nonprofit Environmental Working Group issued a report finding confusion among state officials about the diesel exemption. The report charged that many wells were being fractured with diesel without anyone getting a permit.
After that, then-House Energy and Commerce Chairman Henry Waxman (D-Calif.) let it be known that two major fracturing service providers had acknowledged to his committee that they had used diesel. One, BJ Services, said it had done so in violation of the agreement. Halliburton Co. insisted it had not violated the agreement because its fluid was not poured into a coal bed that was also an underground source of drinking water.
In August, a group of environmental organizations sent a letter to EPA asking the agency to regulate the use of diesel in fracturing.
EPA has launched a multiyear study of the safety of fracturing, following up on a 2004 study, and has reportedly embarked on an effort to clarify the rules regarding the use of diesel in fracturing.
"EPA's 2004 study of hydraulic fracturing identified that diesel in hydraulic fracturing fluid may pose a risk to underground sources of drinking water. This is what led Congress in 2005, under the Energy Policy Act of 2005, to preserve EPA's authority to regulate diesel fuel use in hydraulic fracturing operations under the UIC program. Although the Energy Policy Act of 2005 excluded hydraulic fracturing from the definition of 'underground injection' under the Safe Drinking Water Act, if diesel fuel is used it is regulated under the law," the EPA statement concluded.
IPAA and the U.S. Oil & Gas Association challenged the change before the U.S. Circuit Court of Appeals for the District of Columbia. The case, filed in August, has been referred to a "merit panel" of appellate judges, who will accept briefs and possibly schedule oral argument.
In its court pleadings, EPA stated that it took the specifics of its rules for fracturing permits from its implementation of a 1997 appeals court ruling in an Alabama case that found fracturing did fall under the underground injection control program.
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