At a meeting of the Ground Water Protection Council (GWPC) last week, the Acting Director of EPA’s Drinking Water Protection Division said that industry should expect a broad definition of diesel fuel included in EPA’s upcoming draft guidance for permitting hydraulic fracturing operations using diesel fuel. EPA is authorized to permit fracturing using diesel fuel under the Safe Drinking Water Act (SDWA) Class II UIC program. This is the only fracturing process that EPA has authority to regulate.

The proposed definition would encompass substances with physical and chemical characteristics of diesel, specifically BTEX compounds such as benzene, toluene, ethylbenzene and xylene. This larger scope may be problematic for companies using BTEX compounds in their fracturing fluid in two ways. First, some states’ Class II programs—such as Montana’s—actually prohibit injection pressures high enough to cause fracturing of the rock formation. A broader definition in EPA’s guidance would have the impact of prohibiting fracturing using BTEX compounds in such states. Second, in states that do allow sufficient injection pressures, some companies may be deterred by the 30 day public comment periods on permits that the Class II UIC program requires.

EPA will submit its draft guidance to the White House Office of Management & Budget (OMB) for review within a few weeks. OMB review takes at least 90 days, pushing the expected timeline for the guidance’s release into early next year.