McAfee & Taft RegLINC - July 2012: Two federal agencies issue draft rules on fracking By Jared Burden.


[author:  Jared Burden]

After several years of anticipation, the federal government has finally entered into one of the most contentious debates in recent environmental history – hydraulic fracturing. In this process, sometimes called “fracking,” chemicals and/or fluids are injected into wells in order to break up underground formations and release trapped natural gas and oil. This process is largely responsible for the boom in U.S. domestic energy production. To date, the federal government had been relatively silent on the issue, preferring instead to leave regulation largely to the states. However, in the past couple of months both the EPA and the Department of the Interior (DOI) have announced proposed rules for future fracking operations.

The DOI’s proposed regulations focus on the fluids utilized in fracking. These regulations will affect all federally administered lands, including Native American tribal lands. The new rules will require disclosure of all fluids used for fracking. They will also mandate that companies obtain approval before they inject fluid into a well as well as conduct mechanical integrity tests on the well to ensure that it is fit for fracking. These activities must then be reported within 30 days of the fracking operation. The DOI proposed these rules on May 11, 2012. Comments must be submitted for consideration no later than July 10, 2012, and may be transmitted to, “Attention: OMB Control Number 1004-AE26.”

The EPA’s proposed rule is limited to fracking operations that utilize diesel fuels. The stated goal of this regulation is to clarify rules relating to the Safe Drinking Water Act (SDWA). In 2005, Congress passed a law that exempted fracking from the strictures of the SDWA, including the requirement to register under the Underground Injection Control (UIC) program. However, Congress did authorize the EPA to regulate fracking operations that use diesel fuels. Now the EPA has proposed this new regulation to provide guidance for its interpretation of the SDWA. In essence, operators will have to seek a UIC Class II permit under the SDWA in order to inject diesel fuel into a well. The regulation also provides guidance for permit writers on various requirements that should be reviewed before issuing a permit, including well closure and construction requirements. These rules were proposed in May 2012, and the EPA will accept comments up until July 9, 2012. Comments may be transmitted to with the subject “Docket ID No. EPA-HQ-OW-2011-1013.”

While both of these rules are relatively limited in their scope, they are indications of what may be to come. The federal government has been indicating that it would like to see more regulation of fracking for some time now. It is currently conducting several long-term studies of the phenomena and is looking at its environmental effects. These rules, then, may just be a warm-up for a more expansive regulatory scheme.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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