LEGAL NEWSLINE

WASHINGTON (Legal Newsline) - The U.S. Environmental Protection Agency released a draft guidance Friday for underground injection control programs for class II wells using diesel fuels during hydraulic fracturing activities.

It developed the draft guidance to clarify how companies can comply with a law passed by Congress in 2005. Hydraulic fracturing operations were exempted from the 2005 requirement to obtain a UIC permit, except in cases where diesel fuel is used as a fracturing fluid.

According to the EPA communique, the draft outlines for EPA permit writers requirements for diesel fuels used for hydraulic fracturing wells, technical recommendations for permitting those wells, and a description of diesel fuels for EPA underground injection control permitting.

It said, "The draft guidance describes diesel fuels for these purposes by reference to six chemical abstract services registry numbers. The agency is requesting input on this description."

The EPA stressed that decisions about permitting hydraulic fracturing operations that use diesel fuels will be made on a case-by-case basis, while this guidance undergoes public commenting process. It will permit fracturing by considering the facts and circumstances of the specific injection activity and applicable statutes, regulations and case law, and will not cite this draft guidance as a basis for decision.

Dr. Kenneth Green, the environmental expert for the American Enterprise Institute, said that the EPA issued a draft last week mandating pre-approval before hydraulic fracturing could be done.

"The most interesting aspect of this law is the shift in the expectation whether or not we are in a market economy or are we a regulated energy economy - where companies have to get approval by the government for what they do," he said.

Green speculated that if it is a government regulated economy, conceivably the government could close down swaths of the economy if it does not have sufficient regulators. This makes shrinking government more and more difficult, he said.