Cross-posted at WLF’s contributor site

Last week, five members of the U.S. Senate Committee on Environment and Public Works aimed a bipartisan message of frustration at the Environmental Protection Agency (EPA) and its desire to increase regulation of hydraulic fracturing. Senators James Inhofe, Lisa Murkowski, John Hoeven, Mary Landrieu, and Joe Manchin signed the letter addressed to EPA Administrator Jackson.

The specific target of the Senators’ ire was a May 10 draft guidance document regarding companies’ use of diesel fuels in hydraulic fracturing. The letter’s criticisms were numerous and pointed. Among them were:

  1. EPA attempts to expand its jurisdiction by redefining “diesel.” Four of the six named “diesel fuels” are not in fact diesel fuels.
  2. EPA is imposing new conditions on state permitting programs to which EPA expressly delegated authority under the Safe Drinking Water Act (SDWA).
  3. If state authorities fail to implement the EPA guidance’s “recommendations,” those authorities become exposed to citizen suits by activist groups.
  4. EPA has failed, as the SDWA requires, to explain why additional requirements for permits are “essential” to protect underground drinking water.

The Senators found this final problem especially troubling since EPA has “repeatedly confirmed that hydraulic fracturing has caused no proven incidents of ground water contamination.”

The diesel draft guidance received over 2,700 comments, a large percentage of which were “robo-comments” generated by anti-fracturing activist groups. Comments from affected businesses reflected concerns the Senators raised, as well as other notable problems. One from Spiller Operation Co., a six-person drilling company, argued that because the draft guidance substantively changed regulatory requirements, EPA should have utilized formal notice-and-comment rulemaking.

Conoco-Phillips’ comments noted that the draft guidance contains no exception for the necessary use of  diesel in Artic climates and other frozen conditions, and also has no de minimis threshold for environmentally insignificant amounts of diesel. The National Association of Manufacturers urged EPA to make it clear that the guidance will not be applied retroactively to withdraw existing permits or provide the basis for an enforcement action against companies that have used one of the six “diesel” fuels when fracturing.

EPA claims on the section of its website discussing hydraulic fracturing (which is a “Hot Topic” link from its home page) that, “EPA is working with states and other key stakeholders to help ensure that natural gas extraction does not come at the expense of public health and the
environment.” It’s hard to square the diesel draft guidance and its new mandatory “recommendations” with that proclamation. EPA also notes that it is “undertaking a national study to understand the potential impacts of hydraulic fracturing on drinking water resources.” If the study is ongoing, how can EPA be certain that new rules are “essential” to protect underground water?

The draft guidance should be withdrawn permanently, but EPA should at a minimum set it aside until the Senators’ questions can be answered and until EPA can justify why more rules and greater intrusion into state regulation of fracturing are needed.