Diesel Fracking Guidance Issued

The Environmental Protection Agency ("EPA") issued final guidance on when the use of diesel fuel in fluids for hydraulic fracturing, or fracking, is sufficient to trigger a requirement to obtain a permit for the well under the Safe Drinking Water Act. The guidance provides EPA's interpretation of two important issues: (i) what hydrocarbons are diesel fuel for purposes of the statutory exemption; and (ii) how wells that employ diesel fracking fluids will be regulated. Under the guidance issued on February 12, any amount of diesel fuel used in fracking fluids triggers a permit requirement because EPA expressly refused to include a de minimis exemption.

The guidance also tries to resolve any uncertainty about which hydrocarbons EPA will consider to be diesel fuel, defining it to include substances that are identified by five specific Chemical Abstract Service Registry Numbers. The numbers and the primary chemical names associated with them are 68334-30-5 (diesel