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Senators: EPA Overreaches in Fracking Diesel Guidance

October 8, 2012
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A bipartisan coalition of senators has expressed concerns that the U.S. Environmental Protection Agency (EPA) is attempting to expand its definition of diesel fuels in the draft permitting guidance to gain more federal control over hydraulic fracturing (fracking).

"EPA's draft guidance is yet another example of how [the Obama] administration continues to move ahead using every means possible to gain more federal control over hydraulic fracturing," wrote Sen. James Inhofe (R-OK), the ranking member of the Senate Environmental and Public Works Committee, and other coalition members in a letter to EPA Administrator Lisa Jackson. "States have been regulating the process safely and efficiently for 60 years and those states that use the practices the most have the economic benefits to show for it -- just look at Oklahoma. EPA is clearly overreaching in this case; it needs to stop trying to impede domestic energy production and let states keep up the good work," he said.

"Congress made clear in the Energy Policy Act of 2005 (EPAct) that it's the states that are responsible for regulating hydraulic fracturing within their borders, and that the EPA has a very limited role," said Sen. Lisa Murkowski of Alaska, the ranking Republican on the Senate Energy and Natural Resources Committee. "This EPA has constantly pushed to expand its reach beyond what the law allows, and that seems to be what the agency is attempting to do here by using a vague definition of 'diesel fuels.'"

Sens. John Hoeven (R-ND), Mary Landrieu (D-LA) and Joe Manchin III (D-WV) also are part of the coalition. In a letter sent to the EPA last December, the senators had voiced similar concerns that the EPA was stretching the definition of diesel fuel (see NGI, Jan. 2).

Fracking is excluded from EPA regulation under the Underground Injection Control (UIC) Program of the Safe Drinking Water Act (SDWA), except when diesel fuel is used, the senators said. Even then, under EPAct, Congress gave the EPA a narrow optional authority to regulate "diesel fuel" under the UIC program if the agency considered it necessary, said the Senate members.

"As such, EPA's regulatory authority hinges on the definition of the term 'diesel fuels.' We are concerned that EPA's definition of 'diesel fuels' is not precise and could jeopardize state primacy...under the SDWA," they wrote.

"EPA has presented six potential Chemical Abstracts Service (CAS) numbers to define 'diesel fuels' in EPA's draft guidance document...Only two of the CAS numbers identified by EPA -- 68334-30-5 and 68476-34-6 -- have 'diesel' as the primary name. We believe the additional four CAS numbers printed in EPA's guidance document, as well as the seventh CAS number mentioned in the Federal Register, are not 'diesel fuels' and, as such, plainly exceed the authority given to the EPA in EPAct '05 to regulate hydraulic fracturing when diesel fuels are used under the SDWA."

In the letter the senators also said they were concerned that outside groups could challenged the state primary delegation under SDWA, noting that there already is precedent for this. In 1997, in response to a petition from the Legal Environmental Assistance Foundation, the Eleventh Circuit Court of Appeals held that fracking of coalbeds came under the jurisdiction of the federal SDWA, not the state of Alabama.

"We are concerned that EPA's permitting guidance for oil and natural gas hydraulic fracturing activities using diesel fuels could lead to similar litigation for states that have been delegated primacy [authority] under the SDWA. We request EPA thoroughly consider the impacts this guidance document will have on states that have been delegated primacy under the SDWA and clarify in the final guidance that EPA's hydraulic fracturing regulatory scheme is not applicable to such states," they wrote.

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