On February 5, 2014, the U.S. Environmental Protection Agency distributed new guidance to its Regional Administrators for the issuance of underground injection control (“UIC”) permits under the federal Safe Drinking Water Act (“SDWA”) for the injection of hydraulic fracturing fluids that contain diesel fuel, entitled “Permitting Guidance for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels: Underground Injection Control Program Guidance No. 84.” The Energy Policy Act of 2005 exempted hydraulic fracturing activities from the UIC permitting requirements of the SDWA, except where the injectate contains diesel fuel. In EPA’s guidance document, the agency clarifies that its interpretation of the SDWA is that before any amount of diesel fuel is injected into a well for purposes of hydraulic fracturing—even a de minimus amount—a well operator must first obtain a Class II UIC permit from either EPA or the state permitting authority (depending upon the state).
EPA has defined the term “diesel fuel” to include fluids with the following Chemical Abstract Services Registry Numbers:
- 68334-30-5 (Primary name: Fuels, diesel)
- 68476-34-6 (Primary name: Fuels, diesel, No. 2)
- 68476-30-2 (Primary name: Fuel oil No. 2)
- 68476-31-3 (Primary name: Fuel oil, No. 4)
- 8008-20-6 (Primary name: Kerosene)
According to EPA, when hydraulic fracturing fluids contain any amount of any of these materials, a Class II UIC permit is required before injection can occur. The permit applicant has the burden of demonstrating that the injection will not endanger underground sources of drinking water.
While only a small percentage of hydraulic fracturing uses diesel fuel, in recent years the lack of UIC permits for such activities has received increased scrutiny from elected officials. A 2011 review conducted by the House Committee on Energy and Commerce, led by Rep. Henry Waxman, found that no state or federal regulators had ever issued UIC permits for the injection of hydraulic fracturing fluids containing diesel fuel. EPA has now instructed its Regional Administrators that such permits are required, and has set forth technical recommendations that the agency considers to be best practices for not only the use of diesel fuel in hydraulic fracturing, but for hydraulic fracturing activities in general, regardless of the composition of the injectate. While EPA’s guidance provides merely that state permitting authorities may find the recommendations “useful,” states have also been put on notice that in EPA’s view, not requiring a UIC permit for hydraulic fracturing with any amount of diesel fuel violates the SDWA. Thus, operators who use hydraulic fracturing fluids containing any of the substances identified above are advised to proceed with caution.
This article was authored by Jennifer Hughes, Jackson Kelly PLLC. For more information on the author, see here.
 42 U.S.C. § 300h(d)(1)(B)(ii).
 A UIC permit is not required for the use of diesel fuels in activities other than hydraulic fracturing. For example, no UIC permit is required to use diesel fuel as a component of drilling muds or pipe joint compounds, since those applications are part of the well construction process, not hydraulic fracturing.