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Tuesday, the Environmental Protection Agency (EPA) delivered their final Guidance to their regional offices for regulating hydraulic fracturing with diesel fuel.

Our story dates back to 2005 when then Vice President Dick Cheney gathered his former employer Halliburton and a number of other energy companies behind closed doors to hammer out what would become the Energy Policy Act of 2005.

At the time, the modern process of high-volume horizontal hydraulic fracturing (fracking) was only just coming in to maturity. And the drillers had a problem. In 1974, Congress passed the Safe Drinking Water Act (SDWA) to protect underground sources of drinking water (USDWs). Hydraulic fracturing requires the underground injection of fluids through USDWs. So the frackers had to carve out an exception; this exception later became known as the Halliburton loophole.

During the debate over the Energy Policy Act, Senator Jim Jeffords of Vermont noted the particular dangers posed by diesel fuel in fracking. Diesel causes cancer. So, they passed an amendment that closed the Halliburton loophole when frackers use diesel fuel. That brings us to today. Now, nine years later, EPA has finally provided us their guidance on fracking with diesel.

A Diesel By Any Other Name

This guidance represents a long-awaited first step. It covers five common varieties of diesel fuel, but EPA needs a much broader definition. Defining diesel leaves a lot of wiggle room. Other state and federal agencies include very similar but still chemically different substances as diesel for their purposes. We need to avoid a situation where simply tinkering around with the chemistry may allow some operators to slither around the narrow definition of “diesel” EPA chose. Rearranging the chain of hydrocarbon molecules or adjusting boiling points should not absolve drillers or regulators from the obligation to follow this guidance.

Diesel? What Diesel?

The nine-year absence of guidance did not stop the oil and gas industry from fracking with diesel fuel. Nor has it stopped industry from denying their diesel use.

But in 2011, Reps. Waxman, DeGette, and Markey revealed the industry has fracked with 32 million gallons of fluids containing diesel between 2005 and 2009. And as recently as October of last year, their committee staff search of FracFocus re-confirmed the existing problem of diesel use. Neither driller nor agency should have permitted any diesel use for fracking in the absence of an SDWA permit.

There’s Good in Everything

There is good news. Most important, EPA actually issued guidance. It is the first hydraulic fracturing oversight – well, suggestion at least – of any kind from EPA to take effect. Air rules promulgated by EPA take effect soon. Second, there is no de minimus standard. That is, the guidance applies to the very first molecule of diesel. Third, it effectively closes the Halliburton loophole for diesel use at a fracked well. Fourth, for these diesel fracked wells, permitting agencies may require seismic histories and testing, mechanical integrity testing, baseline water testing, and many other protections the SDWA applies to similar activities.

A Plan for a Ban

We wanted EPA to ban diesel. Just like the Secretary of Energy’s Advisory Board (SEAB) Subcommittee on Natural Gas recommended. And just as the state of Maryland has proposed. If industry denies using it anyway, banning diesel seems like a no-brainer.