Five senators–three Republicans and two Democrat –have written to EPA Administrator Lisa Jackson with concerns about the “impetus” of the Agency’s draft,  Permitting Guidance for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels.  According to the letter, the draft guidance is vague and would cause uncertainty among businesses.  But the main concern is that the guidance would interfere with state primacy in regulating hydraulic fracturing.

Diesel fuels

The senators point out that the Energy Policy Act of 2005 clarified that the states or other local bodies should be the regulators of hydraulic fracturing except when diesel fuels are used as fluids or propping agents, in which case, EPA regulations should apply.  That provision hinges on the definition of “diesel fuels.”  But the senators are concerned that only two of the seven Chemical Abstracts Service (CAS) items the guidance uses to potentially define diesel fuels have “diesel” as the primary name.  The letter therefore states that the other five fluids are not diesel fuels and that the EPA would be exceeding its authority by regulating them.

The letter also indicates that the states have exercised their primacy by regulating fracking under their own well construction programs, not under the federal Safe Drinking Water Act’s (SDWA) underground injection control (UIC) program, which governs EPA’s actions.  But, the letter continues, Nancy Stoner, EPA’s Acting Assistant Administrator for Water, has testified before Congress that primacy programs are encouraged to review and consider the information and recommendations in the guidance.  “It is unclear what, if anything, primacy programs are required to do since states regulate hydraulic fracturing under well construction programs and do not regulate hydraulic fracturing under UIC programs,” state the senators.

Lawsuits possible

The lawmakers are also worried that even if the EPA itself does not challenge state primacy delegation under the SDWA, the guidance as written could expose state regulatory programs to litigation by outside groups.  The letter points to a 1997 case in which the Legal Environmental Assistance Foundation (LEAF) persuaded the U.S. Court of Appeals for the 11th Circuit that the EPA incorrectly refused to regulate hydraulic fracturing of coalbeds in Alabama under the jurisdiction of the SDWA.  As a result, the state was forced to promulgate new regulations addressing fracking of coalbeds.

Essential guidance?

Additionally, the senators note that Section 1421(b)(2) of the SDWA specifies that the EPA may not prescribe requirements for state UIC programs that interfere with or impede oil and natural gas production “unless such requirements are essential to assure that underground sources of drinking water will not be endangered by such injection.” 

“Administration officials, including yourself, have repeatedly confirmed that hydraulic fracturing has caused no proven incidents of groundwater contamination,” the senators write.  “Considering such comments, how can the proposed requirements under EPA’s draft permitting guidance be viewed as ‘essential’ and comply with the express prohibition made by Congress under the SDWA?”

Read the senators’ letter to Jackson.