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EPA, BLM Extend Comment Deadlines on Proposed Frack Rules

The Environmental Protection Agency (EPA) has extended by 45 days the comment period for its proposed guidance to oil and natural gas producers on using diesel fuel in hydraulic fracturing (fracking) "in response to requests from several stakeholders." The Bureau of Land Management (BLM) last week also extended the comment period for its proposed fracking rule, setting the new date of Sept. 10.

The new deadline to submit comments on EPA's proposed rule is Aug. 23, according to a notice published in the Federal Register. The initial public comment period for the agency's draft Permitting Guidance for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels, which was released two months ago, had been scheduled to end last Monday. The guidance is meant to clarify the requirements for producers that seek underground injection control (UIC) permits to use diesel as a fracking fluid in their drilling operations. The 55-page draft includes recommendations on how UIC permit writers should implement requirements related to permit duration and well closure, permit application and review, area of review and well construction, which includes mechanical integrity testing, financial responsibility and public notification.

The Safe Drinking Water Act (SDWA) exempts fracking fluids (except for diesel fuel fluids) from federal regulation and keeps regulation in state hands. While diesel fuel makes up only about 0.09% of typical fracking fluid, oil and gas operators injected an estimated 32 million gallons-plus of diesel fluids, or fracking fluids containing diesel, into wells in 19 states between 2005 and 2009, according to some House members who oppose the practice (see NGI, Feb. 7, 2011).

In December a bipartisan coalition of four senators sent a letter to EPA expressing its "growing concerns" about the broad approach that the agency appeared to be taking to regulate fracking fluids, not just diesel fuels (see NGI, Jan. 2). Sen. Lisa Murkowski of Alaska, the ranking Republican on the Senate Energy and Natural Resources Committee, late last year said her greatest concern was "the extremely broad approach that EPA appears to be taking in defining diesel fuel. For example, it appears EPA could define 'diesel fuel' as any product that contains similar carbon chain characteristics."

Those concerns have been echoed in some of the nearly 1,300 comments already filed with EPA. The agency's "definition of diesel fuel is too broad," the North Dakota Industrial Commission (NDIC) said in its filing. Some language in the draft "must be removed from the guidance because [it does] not comply with the 2005 amendment to the Safe Drinking Water Act, which authorizes regulation of hydraulic fracturing using diesel fuels only," according to NDIC. Such a broad definition could create problems for some seemingly harmless diesel substitutes, including mineral, corn and canola oils, which have some physical and chemical characteristics similar to diesel.

Others submitting comments said EPA should consider exempting from its rules those states that have been regulating fracking for decades.

"States continue to do a superior job of regulating well-completion treatments which use hydraulic fracturing," according to the Kansas Corporation Commission (KCC). "This statement is proven by the fact there has not been a documented case of groundwater contamination caused by hydraulic fracturing well-treatment (with or without diesel) as reported by the Interstate Oil and Gas Compact Commission. Consequently, the KCC believes a draft guidance document is unneeded for states which have regulated this activity for 65 years. State have proven they are best suited for their unique geologic conditions, industry standards and practices."

Separately, BLM last Wednesday extended the comment period for its proposed rule to require companies to publicly disclose chemicals used in fracking operations on federal and Indian lands. BLM officials said last month they expected to extend the comment period, which was scheduled to close last Tuesday (see NGI, June 25). The rule would duplicate regulations already in place in states where BLM lands are located, according to several comments filed with the agency over the past six weeks.

"In our view, BLM lacks the knowledge, experience and judgement on cost-effective hydraulic fracturing or well stimulation best practices when compared with the states," Industrial Energy Consumers of America (IECA) said in documents filed with BLM. "In fact, existing BLM permitting processes already suffer from extraordinary delay. It will take unnecessary time and resources to bring the federal bureaucracy up to current state levels of technical proficiency.

"The implementation of these unjustified, extraordinary and costly technical requirements by unqualified personnel spells trouble for timely and cost-effective permitting processes and ultimately exploration, development and production of natural gas and oil on federal lands."

The proposed rule would discourage exploration and production on federal lands, and the flood of data that it would require companies to submit to BLM would likely overwhelm the agency, according to many of the 267 comments that were filed through Wednesday. BLM apparently was having trouble just processing the proposed rule. The Western Energy Alliance has said BLM's plans would cost taxpayers $1.499-1.615 billion annually (see NGI, June 18).

"The time it takes for BLM to process a permit has increased over the past three years. Imposing additional permit tasks will only further delay the process," according to the North Dakota Industrial Commission.

ExxonMobil Corp. said in its filing that the Department of Interior should eliminate "duplicative requirements" by utilizing existing state regulatory processes related to fracking and other oil and gas operations. "In oil and gas producing states, hydraulic fracturing regulations addressing the three focus areas of the BLM proposed regulation (well construction, water protection and chemical disclosure) are already in place and have to be followed on federal lands," the oil major said. "It is recommended that the proposed regulation be amended so that the new BLM regulation would apply only where states do not have sufficient hydraulic fracturing regulations."

The proposed regulation would require operators to obtain one approval to drill a well, a second approval to stimulate the well and a third approval of the cement bond log before stimulating a well. Such a multiple-step approval process "would be a substantial disincentive to the drilling of wells and thus economic development," according to ExxonMobil.

Native Americans have said they were unable to add input in BLM's negotiations on the proposed rules and claim that the rules could impede their ability to develop their energy resources. In its current form, BLM's proposed rule is "unacceptable," the Southern Ute Indian Tribe in its filing. "Delays in permitting processes already present a major obstacle for our tribe and the implementation of the proposed rule will undoubtedly increase this challenge and force operators to invest in areas not subject to federal regulations."

In February BLM proposed requiring companies that drill on public and Native American lands to disclose the chemicals used in fracking operations, including their formulation (see NGI, Feb. 6). The agency subsequently backtracked slightly, saying companies would only have to disclose the information after operations have been completed (see NGI, May 7).

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