A draft guidance published by the Environmental Protection Agency in the May 10, 2012 Federal Register. The guidance imposes new rules on drillers who use diesel fuel during hydraulic fracturing. Drillers point out four of the six named so-called diesel fuels are not in fact diesel fuels.

1. Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices 27451
Commission’s Rules of Practices and Dated: May 4, 2012. ENVIRONMENTAL PROTECTION
Procedure, 18 CFR 385.207, PPL Nathaniel J. Davis, Sr., AGENCY
Montana, LLC, submitted a petition Deputy Secretary. [EPA–OW–EPA–HQ–OW–2011–1013; FRL–
requesting the Commission to issue a [FR Doc. 2012–11295 Filed 5–9–12; 8:45 am] 9671–1]
declaratory order that (1) issues relating
BILLING CODE 6717–01–P
to compliance with the standards of the Permitting Guidance for Oil and Gas
Commission’s Uniform System of Hydraulic Fracturing Activities Using
Accounts (USoA) are not within the Diesel Fuels—Draft: Underground
DEPARTMENT OF ENERGY
scope of issues to be decided by the Injection Control Program Guidance
board of arbitration, as that board is Federal Energy Regulatory #84
described in Ordering Paragraph
Commission AGENCY: Environmental Protection
(C)(3)(a) of the License and (2) that
licensee costs of environmental Agency (EPA).
mitigation required under Articles 63, [Project No. 2790–055] ACTION: Request for Comment on Draft
64, 65, 66, 67, 68, 70, 71, 72, 73 and 76 Guidance Document.
of the License, to the extent (i) properly Boott Hydropower, Inc.; Notice of
accounted for under the USoA as a Section 106 Consultation Meeting SUMMARY: EPA is taking comment on a
capitalized cost of the Kerr Project and draft document that describes
(ii) not authorized by the Montana On May 24, 2012, Federal Energy Underground Injection Control (UIC)
Public Service Commission to be Regulatory Commission (Commission) Program guidance for permitting the
recovered by the Montana Power staff will participate in a meeting with underground injection of oil- and gas-
Company from its customers, are staff from the U.S. Department of the related hydraulic fracturing (HF) using
properly included in the calculation of Interior, the National Park Service, the diesel fuels where the U.S.
the ‘‘Conveyance Price’’ under Ordering Massachusetts State Historic Environmental Protection Agency (EPA)
Paragraph (C)(2) of the License. Preservation Officer, the Advisory is the permitting authority. The draft
Any person desiring to intervene or to Council on Historic Preservation, Boott guidance includes EPA’s interpretation
protest this filing must file in Hydropower, Inc., and any other of the Safe Drinking Water Act (SDWA)
accordance with Rules 211 and 214 of and regulations regarding UIC
consulting parties for the section 106
the Commission’s Rules of Practice and permitting of oil and gas hydraulic
process for the proposed license
Procedure (18 CFR 385.211, 385.214). fracturing operations using diesel fuels
amendment application for the Lowell
Protests will be considered by the as a fracturing fluid or as a component
Hydroelectric Project (FERC No. 2790– of a fracturing fluid, specifically that
Commission in determining the 055). Currently, the Commission is
appropriate action to be taken, but will they are subject to Class II UIC
reviewing an amendment application permitting requirements. EPA’s goal is
not serve to make protestants parties to
for the project to replace the wooden to provide greater regulatory clarity and
the proceeding. Any person wishing to
flashboards with a pneumatic crest gate certainty to the industry, which will in
become a party must file a notice of
intervention or motion to intervene, as system on the Pawtucket Dam. The turn improve compliance with the
appropriate. Such notices, motions, or meeting will be limited to discussion of SDWA requirements and strengthen
protests must be filed on or before the the issues involved in the section 106 environmental protections consistent
comment date. On or before the consultation process and mitigation with existing law. The draft guidance
comment date, it is not necessary to options for impacts to historic will not impose any new requirements.
serve motions to intervene or protests properties from installation of the See Supporting Information section.
on persons other than the Applicant. pneumatic crest gate system, as required DATES: EPA will consider comments
The Commission encourages by the National Historic Preservation received on or before July 9, 2012.
electronic submission of protests and Act. Interested members of the public ADDRESSES: Submit your comments,
interventions in lieu of paper using the may attend and observe the meeting, but identified by Docket ID No. EPA–HQ–
‘‘eFiling’’ link at http://www.ferc.gov. participation is limited to the applicant OW–2011–1013 by one of the following
Persons unable to file electronically and agencies involved in the section 106 methods:
should submit an original and 14 copies consultation process. • www.regulations.gov: Follow the
of the protest or intervention to the on-line instructions for submitting
Federal Energy Regulatory Commission, The meeting will begin at 1:00 p.m.
comments.
EDT at the Countinghouse at the Boott
888 First Street NE., Washington, DC • Email: OW-Docket@epa.gov@epa.
20426. Cotton Mills Museum, 115 John Street, gov.
This filing is accessible on-line at Lowell, MA 01852. Interested parties • Mail: Permitting Guidance for Oil
http://www.ferc.gov, using the wishing to attend should contact Shana and Gas Hydraulic Fracturing Activities
‘‘eLibrary’’ link and is available for High at (202) 502–8674 or by email at Using Diesel Fuels—Draft,
review in the Commission’s Public Shana.High@ferc.gov, or Heather Environmental Protection Agency,
Reference Room in Washington, DC. Campbell at (202) 502–6182 or by email Mailcode: 4606M, 1200 Pennsylvania
There is an ‘‘eSubscription’’ link on the at Heather.Campbell@ferc.gov. Ave. NW., Washington, DC 20460.
Web site that enables subscribers to Dated: May 4, 2012. • Hand Delivery: Office of Water
receive email notification when a (OW) Docket, EPA/DC, EPA West, Room
Nathaniel J. Davis, Sr.,
mstockstill on DSK4VPTVN1PROD with NOTICES
document is added to a subscribed 3334, 1301 Constitution Ave. NW.,
docket(s). For assistance with any FERC Deputy Secretary. Washington, DC. Such deliveries are
Online service, please email [FR Doc. 2012–11294 Filed 5–9–12; 8:45 am] only accepted during the Docket’s
FERCOnlineSupport@ferc.gov, or call BILLING CODE 6717–01–P normal hours of operation, and special
(866) 208–3676 (toll free). For TTY, call arrangements should be made for
(202) 502–8659. deliveries of boxed information.
Comment Date: 5:00 p.m. Eastern Instructions: Direct your comments to
Time on May 28, 2012. Docket ID No. EPA–HQ–OW–2011–
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2. 27452 Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices
1013. EPA’s policy is that all comments DC 20460; telephone number: (202) may also be relevant in areas where EPA
received will be included in the public 564–2232; email address: kumar.chitra@ is not the permitting authority.
docket without change and may be epa.gov. For general information, visit Information on states that have primacy
made available online at www. the Underground Injection Control is available at http://water.epa.gov/type/
regulations.gov, including any personal Program’s Hydraulic Fracturing and the groundwater/uic/Primacy.cfm.
information provided, unless the Safe Drinking Water Act Web site, Recommendations in this draft
comment includes information claimed http://water.epa.gov/type/groundwater/ guidance may change based on the
to be Confidential Business Information uic/class2/hydraulicfracturing/ comments we receive on the draft
(CBI) or other information whose hydraulic-fracturing.cfm. publication and this will be reflected in
disclosure is restricted by statute. Do SUPPLEMENTARY INFORMATION: the final guidance. EPA understands
not submit information that you that a permit writer who receives a
consider to be CBI or otherwise I. General Information permit application in the interim period
protected through www.regulations.gov. A. Does this action apply to me? before this guidance is finalized will
The www.regulations.gov Web site is an have to make decisions about how to
Underground injection of fluids
‘‘anonymous access’’ system, which permit diesel fuels hydraulic fracturing
through wells is subject to the
means EPA will not know your identity wells. While this guidance undergoes
requirements of the SDWA except
or contact information unless you public notice and comment, EPA
where specifically excluded by the
provide it in the body of your comment. expects that decisions about permitting
statute. In the 2005 Energy Policy Act
If you send an email comment directly hydraulic fracturing operations that use
(EP Act), Congress revised the SDWA
to EPA without going through www. diesel fuels will be made on a case-by-
definition of ‘‘underground injection’’ to
regulations.gov your email address will case basis, considering the facts and
specifically exclude from UIC regulation
be automatically captured and included circumstances of the specific injection
the ‘‘underground injection of fluids or
as part of the comment that is placed in activity and applicable statutes,
propping agents (other than diesel fuels)
the public docket and made available on regulations and case law, and will not
pursuant to hydraulic fracturing
the Internet. If you submit an electronic cite to this draft guidance as a basis for
operations related to oil, gas, or
comment, EPA recommends that you decision.
geothermal production activities’’
include your name and other contact Decisions made regarding a particular
(SDWA Section 1421(d)(1)(B)). UIC
information in the body of your permit will be based on the applicable
regulations further provide that ‘‘[a]ny
comment and with any disk or CD–ROM statutes, regulations, and case law, and
underground injection, except into a
you submit. If EPA cannot read your at times may differ from the
well authorized by rule or except as
comment due to technical difficulties recommendations described in this
authorized by permit issued under the
and cannot contact you for clarification, guidance. Thus, this document will not
UIC program, is prohibited’’ (40 CFR
EPA may not be able to consider your impose legally binding requirements
144.11). Thus, owners or operators who
comment. Electronic files should avoid and will not be implemented as binding
inject diesel fuels during HF related to
the use of special characters, any form in practice; nor will it impose any
oil, gas, or geothermal operations must
of encryption, and be free of any defects obligations on private parties. Legally
obtain a UIC permit before injection
or viruses. For additional information binding requirements for injection wells
begins. While the EP Act references HF
about EPA’s public docket visit the EPA are found at 40 CFR Parts 124 and 144
related to geothermal activities, the draft
Docket Center homepage at http://www. through 148.
guidance only covers hydraulic
epa.gov/epahome/dockets.htm. EPA UIC permit writers reviewing
fracturing using diesel fuels related to
Docket: All documents in the docket diesel fuels HF permit applications
oil and gas activities. Permits for oil and
are listed in the www.regulations.gov should refer to the provisions at 40 CFR
gas HF using diesel fuels are available
index. Although listed in the index, Parts 124 and 144 through 147 as they
through the UIC Class II Program, the
some information is not publicly make permitting decisions. This
well class for oil and gas activities.1
available, e.g., CBI or other information guidance does not substitute for UIC
The guidance provides information on
whose disclosure is restricted by statute. Class II regulations and is not itself a
SDWA UIC Class II requirements and
Certain other material, such as regulation. EPA focused on specific
recommendations for permitting
copyrighted material, will be publicly topics in this guidance, which are useful
hydraulic fracturing injection wells
available only in hard copy. Publicly for tailoring Class II requirements to the
where diesel fuels are used in fluids or
available docket materials are available unique attributes of hydraulic fracturing
propping agents. The guidance is
either electronically in www.regulations. when diesel fuels are used.
intended for EPA permit writers and, as
gov or in hard copy at the OW Docket, The technical topics covered in the
a result, is relevant where EPA directly
EPA/DC, EPA West, Room 3334, 1301 draft guidance include: A description of
implements the UIC Class II program.
Constitution Ave. NW., Washington, diesel fuels; authorizing multiple wells
Implementation of the UIC Program may
DC. The Public Reading Room is open through area permits; establishing a
be carried out by EPA Regions, or by
from 8:30 a.m. to 4:30 p.m., Monday permit duration and applying UIC well
states, tribes, or territories, depending
through Friday, excluding legal closure requirements; considerations for
on whether a state has received primary
holidays. The telephone number for the application submission and review;
enforcement responsibility (primacy)
Public Reading Room is (202) 566–1744, determining an area of review; permit
approval from EPA to implement the
and the telephone number for the OW application materials; well construction
UIC Program (Reference to ‘‘states’’
Docket is (202) 566–2426.
mstockstill on DSK4VPTVN1PROD with NOTICES
includes tribes and territories pursuant requirements for both newly
FOR FURTHER INFORMATION CONTACT: to 40 CFR 144.3). To the extent that constructed and already constructed
Chitra Kumar, Underground Injection states may choose to follow some wells; operation, mechanical integrity,
Control Program, Drinking Water aspects of EPA guidance in monitoring and reporting requirements;
Protection Division, Office of Ground implementing their own programs, it applicable financial responsibility
Water and Drinking Water (MC–4606M), requirements; and public notification
Environmental Protection Agency, 1200 1 Geothermal activities are not considered and environmental justice
Pennsylvania Ave. NW., Washington, Class II. considerations.
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3. Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices 27453
B. What should I consider as I prepare do not apply, EPA will consider implemented by Robert L. Caswell in
my comments for EPA? significant public comments and will the 1960s and 1970s in conjunction
1. Submitting CBI. Do not submit this address significant issues raised by the with acceptable common names of
information to EPA through www. public when the final guidance is pesticides names for labeling purposes);
regulations.gov or email. Clearly mark issued. Cat cracker feed stock; EINECS 270–
the part or all of the information that EPA will provide the final version of 673–5; EPA Pesticide Chemical Code
you claim to be CBI. For CBI the guidance to permit writers where 063514; Fuel oil No. 4; Diesel Fuel
information in a disk or CD–ROM that EPA is the UIC permitting authority. No. 4
you mail to EPA, mark the outside of the EPA expects that the interpretation and
8008–20–6 Primary Name: Kerosene
disk or CD–ROM as CBI and then recommendations in the final guidance
may also be useful to state permit Common Synonyms: JP–5 navy fuel/
identify electronically within the disk or
writers. marine diesel fuel; Deodorized
CD–ROM the specific information that
EPA requests that commenters focus kerosene; JP5 Jet fuel; AF 100
is claimed as CBI. In addition to one
their comments on the following issues, (Pesticide); Caswell No. 517; EINECS
complete version of the comment that
as this will be most helpful to the 232–366–4; EPA Pesticide Chemical
includes information claimed as CBI, a
Agency and facilitate efficient Code 063501; Fuel oil No. 1; Fuels,
copy of the comment that does not
consideration of comments. kerosine; Shell 140; Shellsol 2046;
contain the information claimed as CBI
Distillate fuel oils, light; Kerosene,
must be submitted for inclusion in the a. Diesel Fuels Description straight run; Kerosine, (petroleum);
public docket. Information so marked 1. The draft guidance recommends Several Others
will not be disclosed except in using six Chemical Abstracts Service
accordance with procedures set forth in Registry Numbers (CASRNs) as the basis 68410–00–4 Primary Name: Distillates
40 CFR part 2. for determining whether diesel fuels are (Petroleum), Crude Oil
2. Tips for Preparing Your Comments. used as fluids or propping agents Common Synonyms: Fuel, diesel
When submitting comments, remember pursuant to hydraulic fracturing (VDF) (U.S. EPA Substance Registry
to: operations related to oil or gas System), Straight PWN diesel (EPA
• Identify the guidance by docket production activities. The draft SRS), Aruba gas oil; EINECS 270–072–
number and other identifying guidance, directed toward EPA UIC 8.
information (subject heading, Federal permit writers, recommends considering Based on the six listed CASRNs, a
Register date and page number). whether any portion of the injectate has review of data available on the
• Follow directions—The agency may the following CASRNs, or is referred to voluntary hydraulic fracturing chemical
ask you to respond to specific questions by any of their associated common disclosure Web site, FracFocus (http://
or organize comments by referencing a synonyms, some of which are provided www.Fracfocus.org), in early August,
Code of Federal Regulations (CFR) part as follows: 2011, suggested that approximately 2%
or section number. of wells that hydraulically fracture
• Explain why you agree or disagree; 68334–30–5 Primary Name: Fuels, would be subject to SDWA UIC
suggest alternatives and substitute Diesel permitting requirements in states where
language for your requested changes. Common Synonyms: Automotive EPA administers the UIC Program. This
• Describe any assumptions and diesel oil; Diesel fuel; Diesel oil estimate is necessarily approximate due
provide any technical information (petroleum); Diesel oils; Diesel test fuel; to data limitations. In addition, EPA is
and/or data that you used. Diesel fuels; Diesel Fuel No. 1; Diesel aware that operational practices are
• If you estimate potential costs or fuel [United Nations-North America rapidly evolving in this industry, and
burdens, explain how you arrived at (UN/NA) number 1993]; Diesel fuel oil; past practice with regard to the use of
your estimate in sufficient detail to European Inventory of Existing diesel fuels may not be reflective of
allow for it to be reproduced. Commercial Chemical Substances 269– future practice.
• Provide specific examples to 822–7. EPA selected these six CASRNs
illustrate your concerns, and suggest because either their primary name, or
alternatives. 68476–34–6 Primary Name: Fuels,
their common synonyms, contained the
• Explain your views as clearly as Diesel, No. 2
term ‘‘diesel fuel’’ and they meet the
possible, avoiding the use of profanity Common Synonyms: Diesel Fuel No. chemical and physical properties of
or personal threats. 2; Diesel fuels no. 2; EINECS 270–676– ‘‘diesel fuel,’’ as provided in the Toxic
• Make sure to submit your 1, No. 2 Diesel Fuel Substances Control Act (TSCA)
comments by the comment period Inventory.2 The TSCA description reads
deadline identified. 68476–30–2 Primary Name: Fuel Oil
No. 2 as follows:
3. Request for Comment:
EPA has decided to seek public input Diesel fuel is a complex combination of
Common Synonyms: Diesel fuel; Gas
on the draft guidance because of the hydrocarbons produced by the distillation of
oil or diesel fuel or heating oil, light crude oil. It consists of hydrocarbons having
importance of the guidance to its [UN1202] #2 Home heating oils; API No. carbon numbers predominantly in the range
Federal and state partners, to the 2 fuel oil; EINECS 270–671–4; Fuel Oil of C9 through C20 and boiling in the range
regulated community, and to the public. No. 2; Home heating oil No. 2; Number of approximately 163 °C to 357 °C (325 °F to
Additionally, EPA believes considering 2 burner fuel; Distillate fuel oils, light; 675 °F).
mstockstill on DSK4VPTVN1PROD with NOTICES
and receiving public input will ensure Fuel No. 2; Fuel oil (No. 1, 2, 4, 5 or 6) While this description provided in the
that the guidance adequately addresses [NA1993]; guidance was derived from a particular
remaining questions raised about
68476–31–3 Primary Name: Fuel Oil, CASRN in the TSCA Inventory, a
permitting HF using diesel fuels. This
No. 4 number of chemical compounds could
public comment opportunity will be
available until July 9, 2012. Although Common Synonyms: Caswell No. 2 TSCA Inventory Reporting Rule established the
the Administrative Procedure Act 333AB (A Caswell No. is an TSCA Inventory which now includes the identities
requirements for notice and comment alphanumeric chemical identifier of over 83,000 chemical substances.
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4. 27454 Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices
meet these characteristics, including all cover a greater number of CASRNs than diesel fuels, whether or not they have
of the compounds included in the the recommended description. EPA is ‘‘diesel fuels’’ in the name or
recommended list of CASRNs. These not recommending this approach description?
CASRNs are commonly identified as because it would include some • Would approach (ii), based on the
diesel fuels by other industry and compounds that are not suitable to run strict limits of the TSCA physical and
regulatory applications, as well. in a diesel engine, which is a chemical characteristics, but with no
Alternative Descriptions: EPA also consideration in several of the existing reference to suitability for use in a
reviewed a number of alternative descriptions of diesel fuels that EPA diesel engine, be a more appropriate
descriptions, as follows: reviewed. description for permitting diesel fuels
A. Diesel fuel is: C. Diesel fuel is a complex under the EPA UIC Program? Please
• A complex combination of combination of hydrocarbons produced explain why this approach is preferred.
hydrocarbons produced by the by the distillation of crude oil or the • Would approach (iii), which
distillation of crude oil or the processing of other petroleum-derived captures many more compounds that
processing of other petroleum-derived hydrocarbons, having carbon numbers may or may not be suitable to run a
hydrocarbons; and predominately in the range of C9 to C20 diesel engine, more adequately and
• Having a carbon number range of and a boiling point range of appropriately characterize diesel fuels
C9 to C20; and approximately 163 degrees °C to 357 °C for EPA UIC permitting purposes? How
• Having a boiling point range of 163 (325 degrees °F to 675 °F) and that may would you suggest permit writers and
degrees Centigrade (°C) to 357 °C (325 contain impurities. Under this applicants efficiently and effectively
degrees Fahrenheit (°F) to 675 °F); and description diesel fuels include any identify chemicals meeting this
• Could be used to run a diesel petroleum derived substance with description?
engine; CASRN’s that overlap the diesel fuel • What other approaches should EPA
or predominant carbon range or boiling consider in describing diesel fuels?
• Has any of the CASRNs, 68334–30– point range, or are otherwise identified In the 2005 Energy Policy Act,
5, 68476–30–2, 68476–31–3, 68476–34– as diesel fuel. This approach would Congress revised the SDWA definition
6, 8008–20–6, or 68410–00–4. cover a much greater number of of ‘‘underground injection’’ to
To address the possibility that permit CASRNs than the recommended specifically exclude from UIC regulation
requirements could be avoided for description. EPA is not recommending the ‘‘underground injection of fluids or
substances that are essentially the same this approach because it would include propping agents (other than diesel fuels)
as the diesel fuels description provided many compounds that are not suitable pursuant to hydraulic fracturing
in the guidance even if they are not to run in a diesel engine, and would be operations related to oil, gas, or
known by the name ‘‘diesel fuels,’’ EPA challenging for permit writers and geothermal production activities’’
considered this diesel fuels description applicants to implement, based on the (SDWA Section 1421(d)(1)(B)). The
consisting of the chemical, physical, common methods of determining the Energy Policy Act of 2005 does not
and use-based attributes of diesel fuels composition of fracturing fluids. specify a threshold concentration or
along with a list of CASRNs. One such
Questions Related to the Diesel Fuels percentage of diesel fuels in the HF
compound, which does not have the
Description injectate that would qualify for
synonym, ‘‘diesel fuels,’’ but has the
exclusion from regulation. EPA requests
same chemical and physical Do the six CASRNs in the
comment on whether some de minimis
characteristics of diesel fuels and could recommended description adequately
level of diesel fuel constituents in HF
be used to run a diesel engine, is describe diesel fuels? If not, what other
fluids or propping agents should be
CASRN 64741–44–2, Distillates factors should be considered in the
used. Commenters who support such an
(petroleum), Straight run middle; Gas definition? Are there additional
approach should also recommend how
oil; Gas oil, blend, EINECS 265–044–7. CASRNs that should be included? Are
such a de minimis standard should be
EPA also recognizes that new there any among the six that do not
defined or described and explain the
compounds are regularly introduced belong? Please address the relative
importance of having a description that basis for their recommendations.
into the market and may meet the
physical and chemical criteria of this is static and unchanged versus b. Diesel Fuels Usage Information
TSCA description, and may or may not capturing new chemical compounds
being developed that are substantially Questions Related to Diesel Fuels Usage
contain the words ‘‘diesel fuels’’ in the
similar to the six recommended Information
primary name or any of its synonyms.
This description does not correspond CASRNs. • EPA seeks reliable data about
solely to a specific set of CAS Registry • Would a description based on volumes and frequency of diesel fuel
Numbers. Thus, under this approach, chemical, physical and use-based usage in hydraulic fracturing fluids or
EPA is not able to estimate the number attributes, such as the five-consideration propping agents (based on the
of oil and gas wells that hydraulically alternative EPA considered in (i), more recommended description). EPA
fracture that would be subject to UIC adequately and appropriately welcomes data of this nature at any
permitting requirements in states where characterize diesel fuels in a manner time.
EPA is the permitting authority. that prevents endangerment of human • In developing the draft guidance,
B. Diesel fuel is a complex health and underground sources of EPA found that the primary uses of
combination of hydrocarbons produced drinking water on an ongoing basis? Are diesel fuels in hydraulic fracturing are
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by the distillation of crude oil or the there other ways the Agency could as a primary base (or carrier) fluid, or
processing of other petroleum-derived address any existing or newly added to hydraulic fracturing fluids as
hydrocarbons, having a carbon number developed compounds, such as CASRN a component of a chemical additive. In
range within C9 to C20 and a boiling 64741–44–2, not on the current list of some cases diesel fuels-based fracturing
point range within 163° to 357 °C (325 six CASRNs in the draft guidance that fluids are more efficient for transporting
°F to 675 °F) and that may contain may meet the chemical, physical and and delivering propping agents into
impurities, or are otherwise identified use-based attributes of the six CASRNs fractures, as compared to water-based
as diesel fuel. This approach would of the recommended description of compounds. As an additive component,
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5. Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices 27455
diesel fuels may be used for a range of wells, or re-siting the well to account for surveys, and well logs, provide
purposes, including adjusting fluid any conduits that could potentially additional data on the injection and
properties (e.g., viscosity and lubricity) cause migration of contaminants into confining zones, including their areal
or as a solvent to aid in the delivery of USDWs. There are two methods for extent, mineralogy, porosity,
gelling agents. EPA seeks additional delineating AoR: (1) Determining the permeability, and capillary pressures
information on the uses of diesel fuels zone of endangering influence (ZEI), or and geology or facies changes. Access to
during underground injection associated (2) using a minimum one-quarter (1⁄4) this data could provide EPA with
with hydraulic fracturing, and mile fixed radius around the well. The critical information needed to make
information about the efficacy of any recommended approach in the draft effective permit determinations. Should
substitutes for diesel fuels, including guidance provides four alternatives to EPA recommend collection of such data
where substitution may be infeasible or these approaches that address the with the permit application?
raise other technical issues. importance of using a site-specific area Commenters should consider the
c. Permit Duration and Well Closure of review calculation and take into relative importance of these data to
account not only the wellhead, but also protection of human health and
UIC regulations provide for Class II the horizontal section of the well. EPA underground sources of drinking water
permits to be issued up to the operating also recommends EPA permit writers versus any additional workload for
life of the facility, or for a shorter avoid using the modified Theis equation applicants.
period. Class II UIC permits usually when delineating the AoR. • Geomechanical characteristics of
extend through the time of plugging,
abandonment and closure of a well. Questions Related to Area of Review the confining zone such as, information
on fractures, stress, ductility, rock
However, because hydraulic fracturing • What additional area of review strength, and in situ fluid pressures,
activities are immediately followed by delineation approaches would you
oil or gas production, the draft guidance help predict the propagation of fractures
consider effective for the purposes of and indicate the potential risk of fluid
recommends two approaches for permitting hydraulic fracturing using
permitting wells allowable under the migration. Should EPA recommend
diesel fuels? collection of geomechanical data with
UIC Class II regulations to address the • How would you ensure that the area
unique nature of hydraulic fracturing. the permit application to assist EPA in
of review appropriately accounts for the
EPA permit writers may: (1) Issue short- making effective permit determinations?
horizontally drilled sections of the well
duration permits and convert wells out Commenters should consider the
without being computationally
of the UIC program upon completion of relative importance of these data to
burdensome?
the diesel fuels hydraulic fracturing • Are there circumstances where it protection of human health and
activity, or (2) they may assign the well would be appropriate to use the underground sources of drinking water
to ‘‘temporarily abandoned’’ status. The standard approaches (e.g., 1⁄4 mile versus any additional workload for
first approach releases the well from radius around the well) for determining applicants.
UIC requirements after the permit AoR? Commenters should explain how • Should the Agency request
expires, while the second maintains the the standard approach would provide submittal of seismic data, such as the
permit in active status until final appropriate protection for USDWs. presence and depth of known seismic
plugging and abandonment of the well, events and a determination that
e. Information Submitted With the injection would not cause seismicity
with the possibility of reduced
Permit Application that interferes with containment, with
monitoring and reporting during
production. The second approach may Information submitted and evaluated the permit application? How useful
be beneficial to operators who might during the permit application process would inclusion of these data be to
conduct future hydraulic fracturing of supports permitting decisions and minimize potential risk of
the well using diesel fuel, as it would ensures that appropriate safeguards endangerment to USDWs? Please
avoid the need for them to obtain a new (e.g., permit conditions) are established provide rationale in support of your
UIC permit for this activity. to prevent or remedy contamination to response.
USDWs. HF using diesel fuels may pose • What other information, if any,
Question Related to Permit Duration a number of unique risks to USDWs. should EPA recommend be submitted
and Well Closure Due to high injection pressures, there is with the permit application to make
• What additional approaches should potential to induce fractures that may permitting decisions that are protective
EPA consider for UIC permitting of serve as conduits for fluid migration, of human health and underground
diesel fuels hydraulic fracturing including harmful chemicals found in sources of drinking water?
injection wells to effectively address diesel fuels. In addition, there has been
well closure, plugging and concern about induced seismic events f. Monitoring
abandonment requirements? related to Class II activities. The UIC Question Related to Monitoring
regulations allow flexibility in
d. Area of Review. • The recommended monitoring
permitting to account for local
Delineating and evaluating an AoR is conditions and practices. Under 40 CFR approaches include specifications for
one of the cornerstones of the UIC 144.52(a)(9), EPA permit writers may mechanical integrity testing prior to and
Program. It ensures that there are no request and review additional after hydraulic fracturing injection using
conduits in the vicinity of the injection information from the owner or operator diesel fuels. These recommendations
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well that could enable fluids to migrate when evaluating a permit application ensure that the well maintains integrity
into USDWs. Before proceeding with the for a diesel fuels HF well. during operations, given the high
project, owners or operators must define pressures and nature of fluids injected
the appropriate AoR; assess that area for Questions Related to Information during hydraulic fracturing. What
conduits of potential fluid movement; Submitted With the Permit Application additional approaches for monitoring of
and, if necessary, perform corrective • Standard industry research and well integrity should EPA consider to
action, such as the plugging of exploration field collections, such as ensure safe and effective injection well
improperly abandoned and orphaned geologic cores, outcrop data, seismic operation?
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6. 27456 Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices
• According to standard industry SUMMARY: The Office of the Comptroller The prudential regulator (as defined
monitoring practice, data are collected of the Currency (‘‘OCC’’), Board of in the Commodity Exchange Act) 4 of a
through means such as microseismic Governors of the Federal Reserve swaps entity is authorized to prescribe
monitoring and/or tiltmeter monitoring System (‘‘Board’’), and the Federal rules implementing section 716 with
to characterize the actual fracture Deposit Insurance Corporation (‘‘FDIC’’) respect to that swaps entity.5 The Board
network and compare it with the are issuing this guidance to provide is the prudential regulator for state
predictive fracture model. Should EPA clarity regarding the effective date of member banks, bank holding
include a microseismic and/or tiltmeter section 716 of the Dodd-Frank Wall companies, savings and loan holding
monitoring, or any other approaches, in Street Reform and Consumer Protection companies, state branches and agencies
the guidance recommendations, to Act (‘‘Dodd-Frank Act’’) 1 with respect of foreign banks, and certain other
ensure that the fracture network does to entities for which each is the
swaps entities.6 In addition, the Board is
not pose a potential risk to USDWs? prudential regulator.
charged with responsibility for
Please provide a rationale for your DATES: May 10, 2012.
establishing and overseeing the
answer. FOR FURTHER INFORMATION CONTACT: provision of credit through any Federal
• Baseline and periodic monitoring of OCC: Ellen Broadman, Director, Reserve credit facility and the discount
water quality for all USDWs within the Securities and Corporate Practices window. The FDIC is the prudential
area of review help demonstrate the Division (202) 874–5210, Ted Dowd,
protectiveness of permitted operations regulator for state nonmember banks
Assistant Director, Securities & and state savings associations.7 In
and are recommended by the American Corporate Practices Division (202)
Petroleum Institute (HF1, 2009). Water addition, the FDIC is charged with
874–5327, or Jamey Basham, Assistant insuring the deposits of banks and
quality monitoring can be especially Director, Legislative and Regulatory
important in cases where owners or savings associations and managing the
Activities Division (202) 874–5090, Deposit Insurance Fund. The OCC is the
operators wish to exercise a flexibility Office of the Comptroller of the
recommended in the guidance of either prudential regulator for national banks,
Currency, 250 E Street SW.,
being released from the UIC program or federal savings associations, and Federal
Washington, DC 20219.
operating as temporarily abandoned Board: Christine Graham, Senior branches and agencies of foreign banks.8
after injection has ceased and Attorney (202) 452–3005, or Effective Date
production has begun. To utilize these Christopher Paridon, Counsel (202)
flexibilities, owners or operators need to 452–3274, Legal Division; Board of Section 716(h) provides that its
demonstrate that their operations have Governors of the Federal Reserve general prohibition on Federal
not (or will not) endangered USDWs in System, 20th and C Streets NW., assistance is ‘‘effective 2 years following
the project area. Should EPA include Washington, DC 20551. For the deaf, the date on which this Act is
baseline and/or periodic monitoring of hard of hearing, and speech impaired effective.’’ 9 Section 716 is contained in
USDWs as a recommended monitoring only, teletypewriter (TTY), (202) 263– Title VII of the Dodd-Frank Act. Section
approach in the guidance? If so, what 4869. 701 in Title VII provides that Title VII
water quality monitoring data should be FDIC: Thomas Hearn, Counsel (202) may be cited as the ‘‘Wall Street
included to best ensure non- 898–6967, or Mark Flanigan, Counsel Transparency and Accountability Act of
endangerment of USDWs? (202) 898–7426, Legal Division; 2010.’’ 10 Thus, while enacted within
Dated: May 4, 2012. Federal Deposit Insurance the Dodd-Frank Act, Title VII is itself
Nancy K. Stoner, Corporation, 550 17th Street NW., ‘‘an Act,’’ and references within Title
Acting Assistant Administrator, Office of Washington, DC 20429. For the VII to ‘‘this Act’’ should be, in context,
Water. hearing impaired only, interpreted as references to the Wall
[FR Doc. 2012–11288 Filed 5–9–12; 8:45 am]
telecommunications device for the Street Transparency and Accountability
deaf TDD: 800–925–4618. Act of 2010, not to the broader Dodd-
BILLING CODE 6560–50–P
SUPPLEMENTARY INFORMATION: Frank Act. This interpretation is
Background supported by the fact that section
Section 716 prohibits the provision of 716(m) refers specifically to the Dodd-
DEPARTMENT OF THE TREASURY Frank Act by name—a reference that
Federal assistance to any entity defined
Office of the Comptroller of the under that section to be a swaps entity would not be necessary if the reference
Currency with respect to any swap, security-based to ‘‘this Act’’ in section 716(h) and other
swap, or other activity of the swaps provisions of the Wall Street
FEDERAL RESERVE SYSTEM entity.2 ‘‘Federal assistance’’ is defined Transparency and Accountability Act
for purposes of section 716 as ‘‘the use were intended to refer to the Dodd-
FEDERAL DEPOSIT INSURANCE of any advances from any Federal Frank Act. Nothing in the context of
CORPORATION Reserve credit facility or discount subsection (m) or other provisions of
window that is not part of a program
Guidance on the Effective Date of with broad-based eligibility under 4 Pursuant to section 711 of the Dodd-Frank Act,
Section 716 of the Dodd-Frank Wall section 13(3)(A) of the Federal Reserve the term ‘‘prudential regulator’’ as used in section
Street Reform and Consumer 716 has the same meaning as in the Commodity
Act,’’ and ‘‘[FDIC] insurance or Exchange Act. 15 U.S.C. 8301.
Protection Act guarantees’’ for certain purposes
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5 Section 716(k) of the Dodd-Frank Act; 15 U.S.C.
AGENCY: Office of the Comptroller of the specified in section 716(b)(1).3 8305(k).
6 See 7 U.S.C. 1a(39)(A).
Currency (OCC), Treasury; Board of 1 Section 716 of Public Law 111–203, 124 Stat. 7 See id. at section 1a(39)(C).
Governors of the Federal Reserve 1376; 15 U.S.C. 8305. 8 See id. at section 1a(39)(B).
System (Board); and Federal Deposit 2 See, section 716(a) of the Dodd-Frank Act; 15 9 See section 716(h) of the Dodd-Frank Act; 15
Insurance Corporation (FDIC). U.S.C. 8305(a). U.S.C. 8305(h).
3 See, section 716(b)(1) of the Dodd-Frank Act; 15 10 See section 701 of the Dodd-Frank Act; 15
ACTION: Notice of joint guidance.
U.S.C. 8305(b)(1). U.S.C. 8301 note.
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