Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices 27451 

Commission’s Rules of Practices and 

Procedure, 18 CFR 385.207, PPL 

Montana, LLC, submitted a petition 

requesting the Commission to issue a 

declaratory order that (1) issues relating 

to compliance with the standards of the 

Commission’s Uniform System of 

Accounts (USoA) are not within the 

scope of issues to be decided by the 

board of arbitration, as that board is 

described in Ordering Paragraph 

(C)(3)(a) of the License and (2) that 

licensee costs of environmental 

mitigation required under Articles 63, 

64, 65, 66, 67, 68, 70, 71, 72, 73 and 76 

of the License, to the extent (i) properly 

accounted for under the USoA as a 

capitalized cost of the Kerr Project and 

(ii) not authorized by the Montana 

Public Service Commission to be 

recovered by the Montana Power 

Company from its customers, are 

properly included in the calculation of 

the ‘‘Conveyance Price’’ under Ordering 

Paragraph (C)(2) of the License. 

Any person desiring to intervene or to 

protest this filing must file in 

accordance with Rules 211 and 214 of 

the Commission’s Rules of Practice and 

Procedure (18 CFR 385.211, 385.214). 

Protests will be considered by the 

Commission in determining the 

appropriate action to be taken, but will 

not serve to make protestants parties to 

the proceeding. Any person wishing to 

become a party must file a notice of 

intervention or motion to intervene, as 

appropriate. Such notices, motions, or 

protests must be filed on or before the 

comment date. On or before the 

comment date, it is not necessary to 

serve motions to intervene or protests 

on persons other than the Applicant. 

The Commission encourages 

electronic submission of protests and 

interventions in lieu of paper using the 

‘‘eFiling’’ link at http://www.ferc.gov. 

Persons unable to file electronically 

should submit an original and 14 copies 

of the protest or intervention to the 

Federal Energy Regulatory Commission, 

888 First Street NE., Washington, DC 

20426. 

This filing is accessible on-line at 

http://www.ferc.gov, using the 

‘‘eLibrary’’ link and is available for 

review in the Commission’s Public 

Reference Room in Washington, DC. 

There is an ‘‘eSubscription’’ link on the 

Web site that enables subscribers to 

receive email notification when a 

document is added to a subscribed 

docket(s). For assistance with any FERC 

Online service, please email 

FERCOnlineSupport@ferc.gov, or call 

(866) 208–3676 (toll free). For TTY, call 

(202) 502–8659. 

Comment Date: 5:00 p.m. Eastern 

Time on May 28, 2012. 

Dated: May 4, 2012. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

[FR Doc. 2012–11295 Filed 5–9–12; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

[Project No. 2790–055] 

Boott Hydropower, Inc.; Notice of 

Section 106 Consultation Meeting 

On May 24, 2012, Federal Energy 

Regulatory Commission (Commission) 

staff will participate in a meeting with 

staff from the U.S. Department of the 

Interior, the National Park Service, the 

Massachusetts State Historic 

Preservation Officer, the Advisory 

Council on Historic Preservation, Boott 

Hydropower, Inc., and any other 

consulting parties for the section 106 

process for the proposed license 

amendment application for the Lowell 

Hydroelectric Project (FERC No. 2790– 

055). Currently, the Commission is 

reviewing an amendment application 

for the project to replace the wooden 

flashboards with a pneumatic crest gate 

system on the Pawtucket Dam. The 

meeting will be limited to discussion of 

the issues involved in the section 106 

consultation process and mitigation 

options for impacts to historic 

properties from installation of the 

pneumatic crest gate system, as required 

by the National Historic Preservation 

Act. Interested members of the public 

may attend and observe the meeting, but 

participation is limited to the applicant 

and agencies involved in the section 106 

consultation process. 

The meeting will begin at 1:00 p.m. 

EDT at the Countinghouse at the Boott 

Cotton Mills Museum, 115 John Street, 

Lowell, MA 01852. Interested parties 

wishing to attend should contact Shana 

High at (202) 502–8674 or by email at 

Shana.High@ferc.gov, or Heather 

Campbell at (202) 502–6182 or by email 

at Heather.Campbell@ferc.gov. 

Dated: May 4, 2012. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

[FR Doc. 2012–11294 Filed 5–9–12; 8:45 am] 

BILLING CODE 6717–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[EPA–OW–EPA–HQ–OW–2011–1013; FRL– 

9671–1] 

Permitting Guidance for Oil and Gas 

Hydraulic Fracturing Activities Using 

Diesel Fuels—Draft: Underground 

Injection Control Program Guidance 

#84 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Request for Comment on Draft 

Guidance Document. 

SUMMARY: EPA is taking comment on a 

draft document that describes 

Underground Injection Control (UIC) 

Program guidance for permitting the 

underground injection of oil- and gasrelated hydraulic fracturing (HF) using 

diesel fuels where the U.S. 

Environmental Protection Agency (EPA) 

is the permitting authority. The draft 

guidance includes EPA’s interpretation 

of the Safe Drinking Water Act (SDWA) 

and regulations regarding UIC 

permitting of oil and gas hydraulic 

fracturing operations using diesel fuels 

as a fracturing fluid or as a component 

of a fracturing fluid, specifically that 

they are subject to Class II UIC 

permitting requirements. EPA’s goal is 

to provide greater regulatory clarity and 

certainty to the industry, which will in 

turn improve compliance with the 

SDWA requirements and strengthen 

environmental protections consistent 

with existing law. The draft guidance 

will not impose any new requirements. 

See Supporting Information section. 

DATES: EPA will consider comments 

received on or before July 9, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2011–1013 by one of the following 

methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: OW-Docket@epa.gov@epa.

gov. 

• Mail: Permitting Guidance for Oil 

and Gas Hydraulic Fracturing Activities 

Using Diesel Fuels—Draft, 

Environmental Protection Agency, 

Mailcode: 4606M, 1200 Pennsylvania 

Ave. NW., Washington, DC 20460. 

• Hand Delivery: Office of Water 

(OW) Docket, EPA/DC, EPA West, Room 

3334, 1301 Constitution Ave. NW., 

Washington, DC. Such deliveries are 

only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2011– 

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27452 Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices 

1 Geothermal activities are not considered 

Class II. 

1013. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at www.

regulations.gov, including any personal 

information provided, unless the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through www.regulations.gov. 

The www.regulations.gov Web site is an 

‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an email comment directly 

to EPA without going through www.

regulations.gov your email address will 

be automatically captured and included 

as part of the comment that is placed in 

the public docket and made available on 

the Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http://www.

epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the www.regulations.gov 

index. Although listed in the index, 

some information is not publicly 

available, e.g., CBI or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

either electronically in www.regulations.

gov or in hard copy at the OW Docket, 

EPA/DC, EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the OW 

Docket is (202) 566–2426. 

FOR FURTHER INFORMATION CONTACT: 

Chitra Kumar, Underground Injection 

Control Program, Drinking Water 

Protection Division, Office of Ground 

Water and Drinking Water (MC–4606M), 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20460; telephone number: (202) 

564–2232; email address: kumar.chitra@

epa.gov. For general information, visit 

the Underground Injection Control 

Program’s Hydraulic Fracturing and the 

Safe Drinking Water Act Web site, 

http://water.epa.gov/type/groundwater/

uic/class2/hydraulicfracturing/

hydraulic-fracturing.cfm. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Underground injection of fluids 

through wells is subject to the 

requirements of the SDWA except 

where specifically excluded by the 

statute. In the 2005 Energy Policy Act 

(EP Act), Congress revised the SDWA 

definition of ‘‘underground injection’’ to 

specifically exclude from UIC regulation 

the ‘‘underground injection of fluids or 

propping agents (other than diesel fuels) 

pursuant to hydraulic fracturing 

operations related to oil, gas, or 

geothermal production activities’’ 

(SDWA Section 1421(d)(1)(B)). UIC 

regulations further provide that ‘‘[a]ny 

underground injection, except into a 

well authorized by rule or except as 

authorized by permit issued under the 

UIC program, is prohibited’’ (40 CFR 

144.11). Thus, owners or operators who 

inject diesel fuels during HF related to 

oil, gas, or geothermal operations must 

obtain a UIC permit before injection 

begins. While the EP Act references HF 

related to geothermal activities, the draft 

guidance only covers hydraulic 

fracturing using diesel fuels related to 

oil and gas activities. Permits for oil and 

gas HF using diesel fuels are available 

through the UIC Class II Program, the 

well class for oil and gas activities.1

The guidance provides information on 

SDWA UIC Class II requirements and 

recommendations for permitting 

hydraulic fracturing injection wells 

where diesel fuels are used in fluids or 

propping agents. The guidance is 

intended for EPA permit writers and, as 

a result, is relevant where EPA directly 

implements the UIC Class II program. 

Implementation of the UIC Program may 

be carried out by EPA Regions, or by 

states, tribes, or territories, depending 

on whether a state has received primary 

enforcement responsibility (primacy) 

approval from EPA to implement the 

UIC Program (Reference to ‘‘states’’ 

includes tribes and territories pursuant 

to 40 CFR 144.3). To the extent that 

states may choose to follow some 

aspects of EPA guidance in 

implementing their own programs, it 

may also be relevant in areas where EPA 

is not the permitting authority. 

Information on states that have primacy 

is available at http://water.epa.gov/type/ 

groundwater/uic/Primacy.cfm. 

Recommendations in this draft 

guidance may change based on the 

comments we receive on the draft 

publication and this will be reflected in 

the final guidance. EPA understands 

that a permit writer who receives a 

permit application in the interim period 

before this guidance is finalized will 

have to make decisions about how to 

permit diesel fuels hydraulic fracturing 

wells. While this guidance undergoes 

public notice and comment, EPA 

expects that decisions about permitting 

hydraulic fracturing operations that use 

diesel fuels will be made on a case-bycase basis, considering the facts and 

circumstances of the specific injection 

activity and applicable statutes, 

regulations and case law, and will not 

cite to this draft guidance as a basis for 

decision. 

Decisions made regarding a particular 

permit will be based on the applicable 

statutes, regulations, and case law, and 

at times may differ from the 

recommendations described in this 

guidance. Thus, this document will not 

impose legally binding requirements 

and will not be implemented as binding 

in practice; nor will it impose any 

obligations on private parties. Legally 

binding requirements for injection wells 

are found at 40 CFR Parts 124 and 144 

through 148. 

EPA UIC permit writers reviewing 

diesel fuels HF permit applications 

should refer to the provisions at 40 CFR 

Parts 124 and 144 through 147 as they 

make permitting decisions. This 

guidance does not substitute for UIC 

Class II regulations and is not itself a 

regulation. EPA focused on specific 

topics in this guidance, which are useful 

for tailoring Class II requirements to the 

unique attributes of hydraulic fracturing 

when diesel fuels are used. 

The technical topics covered in the 

draft guidance include: A description of 

diesel fuels; authorizing multiple wells 

through area permits; establishing a 

permit duration and applying UIC well 

closure requirements; considerations for 

application submission and review; 

determining an area of review; permit 

application materials; well construction 

requirements for both newly 

constructed and already constructed 

wells; operation, mechanical integrity, 

monitoring and reporting requirements; 

applicable financial responsibility 

requirements; and public notification 

and environmental justice 

considerations. 

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Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices 27453 

2TSCA Inventory Reporting Rule established the 

TSCA Inventory which now includes the identities 

of over 83,000 chemical substances. 

B. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through www.

regulations.gov or email. Clearly mark 

the part or all of the information that 

you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting comments, remember 

to: 

• Identify the guidance by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information 

and/or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

3. Request for Comment: 

EPA has decided to seek public input 

on the draft guidance because of the 

importance of the guidance to its 

Federal and state partners, to the 

regulated community, and to the public. 

Additionally, EPA believes considering 

and receiving public input will ensure 

that the guidance adequately addresses 

remaining questions raised about 

permitting HF using diesel fuels. This 

public comment opportunity will be 

available until July 9, 2012. Although 

the Administrative Procedure Act 

requirements for notice and comment 

do not apply, EPA will consider 

significant public comments and will 

address significant issues raised by the 

public when the final guidance is 

issued. 

EPA will provide the final version of 

the guidance to permit writers where 

EPA is the UIC permitting authority. 

EPA expects that the interpretation and 

recommendations in the final guidance 

may also be useful to state permit 

writers. 

EPA requests that commenters focus 

their comments on the following issues, 

as this will be most helpful to the 

Agency and facilitate efficient 

consideration of comments. 

a. Diesel Fuels Description 

1. The draft guidance recommends 

using six Chemical Abstracts Service 

Registry Numbers (CASRNs) as the basis 

for determining whether diesel fuels are 

used as fluids or propping agents 

pursuant to hydraulic fracturing 

operations related to oil or gas 

production activities. The draft 

guidance, directed toward EPA UIC 

permit writers, recommends considering 

whether any portion of the injectate has 

the following CASRNs, or is referred to 

by any of their associated common 

synonyms, some of which are provided 

as follows: 

68334–30–5 Primary Name: Fuels, 

Diesel 

Common Synonyms: Automotive 

diesel oil; Diesel fuel; Diesel oil 

(petroleum); Diesel oils; Diesel test fuel; 

Diesel fuels; Diesel Fuel No. 1; Diesel 

fuel [United Nations-North America 

(UN/NA) number 1993]; Diesel fuel oil; 

European Inventory of Existing 

Commercial Chemical Substances 269– 

822–7. 

68476–34–6 Primary Name: Fuels, 

Diesel, No. 2 

Common Synonyms: Diesel Fuel No. 

2; Diesel fuels no. 2; EINECS 270–676– 

1, No. 2 Diesel Fuel 

68476–30–2 Primary Name: Fuel Oil 

No. 2 

Common Synonyms: Diesel fuel; Gas 

oil or diesel fuel or heating oil, light 

[UN1202] #2 Home heating oils; API No. 

2 fuel oil; EINECS 270–671–4; Fuel Oil 

No. 2; Home heating oil No. 2; Number 

2 burner fuel; Distillate fuel oils, light; 

Fuel No. 2; Fuel oil (No. 1, 2, 4, 5 or 6) 

[NA1993]; 

68476–31–3 Primary Name: Fuel Oil, 

No. 4 

Common Synonyms: Caswell No. 

333AB (A Caswell No. is an 

alphanumeric chemical identifier 

implemented by Robert L. Caswell in 

the 1960s and 1970s in conjunction 

with acceptable common names of 

pesticides names for labeling purposes); 

Cat cracker feed stock; EINECS 270– 

673–5; EPA Pesticide Chemical Code 

063514; Fuel oil No. 4; Diesel Fuel 

No. 4 

8008–20–6 Primary Name: Kerosene 

Common Synonyms: JP–5 navy fuel/ 

marine diesel fuel; Deodorized 

kerosene; JP5 Jet fuel; AF 100 

(Pesticide); Caswell No. 517; EINECS 

232–366–4; EPA Pesticide Chemical 

Code 063501; Fuel oil No. 1; Fuels, 

kerosine; Shell 140; Shellsol 2046; 

Distillate fuel oils, light; Kerosene, 

straight run; Kerosine, (petroleum); 

Several Others 

68410–00–4 Primary Name: Distillates 

(Petroleum), Crude Oil 

Common Synonyms: Fuel, diesel 

(VDF) (U.S. EPA Substance Registry 

System), Straight PWN diesel (EPA 

SRS), Aruba gas oil; EINECS 270–072– 

8. 

Based on the six listed CASRNs, a 

review of data available on the 

voluntary hydraulic fracturing chemical 

disclosure Web site, FracFocus (http://

www.Fracfocus.org), in early August, 

2011, suggested that approximately 2% 

of wells that hydraulically fracture 

would be subject to SDWA UIC 

permitting requirements in states where 

EPA administers the UIC Program. This 

estimate is necessarily approximate due 

to data limitations. In addition, EPA is 

aware that operational practices are 

rapidly evolving in this industry, and 

past practice with regard to the use of 

diesel fuels may not be reflective of 

future practice. 

EPA selected these six CASRNs 

because either their primary name, or 

their common synonyms, contained the 

term ‘‘diesel fuel’’ and they meet the 

chemical and physical properties of 

‘‘diesel fuel,’’ as provided in the Toxic 

Substances Control Act (TSCA) 

Inventory.2 The TSCA description reads 

as follows: 

Diesel fuel is a complex combination of 

hydrocarbons produced by the distillation of 

crude oil. It consists of hydrocarbons having 

carbon numbers predominantly in the range 

of C9 through C20 and boiling in the range 

of approximately 163 °C to 357 °C (325 °F to 

675 °F). 

While this description provided in the 

guidance was derived from a particular 

CASRN in the TSCA Inventory, a 

number of chemical compounds could 

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27454 Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices 

meet these characteristics, including all 

of the compounds included in the 

recommended list of CASRNs. These 

CASRNs are commonly identified as 

diesel fuels by other industry and 

regulatory applications, as well. 

Alternative Descriptions: EPA also 

reviewed a number of alternative 

descriptions, as follows: 

A. Diesel fuel is: 

• A complex combination of 

hydrocarbons produced by the 

distillation of crude oil or the 

processing of other petroleum-derived 

hydrocarbons; and 

• Having a carbon number range of 

C9 to C20; and 

• Having a boiling point range of 163 

degrees Centigrade (°C) to 357 °C (325 

degrees Fahrenheit (°F) to 675 °F); and 

• Could be used to run a diesel 

engine; 

or 

• Has any of the CASRNs, 68334–30– 

5, 68476–30–2, 68476–31–3, 68476–34– 

6, 8008–20–6, or 68410–00–4. 

To address the possibility that permit 

requirements could be avoided for 

substances that are essentially the same 

as the diesel fuels description provided 

in the guidance even if they are not 

known by the name ‘‘diesel fuels,’’ EPA 

considered this diesel fuels description 

consisting of the chemical, physical, 

and use-based attributes of diesel fuels 

along with a list of CASRNs. One such 

compound, which does not have the 

synonym, ‘‘diesel fuels,’’ but has the 

same chemical and physical 

characteristics of diesel fuels and could 

be used to run a diesel engine, is 

CASRN 64741–44–2, Distillates 

(petroleum), Straight run middle; Gas 

oil; Gas oil, blend, EINECS 265–044–7. 

EPA also recognizes that new 

compounds are regularly introduced 

into the market and may meet the 

physical and chemical criteria of this 

TSCA description, and may or may not 

contain the words ‘‘diesel fuels’’ in the 

primary name or any of its synonyms. 

This description does not correspond 

solely to a specific set of CAS Registry 

Numbers. Thus, under this approach, 

EPA is not able to estimate the number 

of oil and gas wells that hydraulically 

fracture that would be subject to UIC 

permitting requirements in states where 

EPA is the permitting authority. 

B. Diesel fuel is a complex 

combination of hydrocarbons produced 

by the distillation of crude oil or the 

processing of other petroleum-derived 

hydrocarbons, having a carbon number 

range within C9 to C20 and a boiling 

point range within 163° to 357 °C (325 

°F to 675 °F) and that may contain 

impurities, or are otherwise identified 

as diesel fuel. This approach would 

cover a greater number of CASRNs than 

the recommended description. EPA is 

not recommending this approach 

because it would include some 

compounds that are not suitable to run 

in a diesel engine, which is a 

consideration in several of the existing 

descriptions of diesel fuels that EPA 

reviewed. 

C. Diesel fuel is a complex 

combination of hydrocarbons produced 

by the distillation of crude oil or the 

processing of other petroleum-derived 

hydrocarbons, having carbon numbers 

predominately in the range of C9 to C20 

and a boiling point range of 

approximately 163 degrees °C to 357 °C 

(325 degrees °F to 675 °F) and that may 

contain impurities. Under this 

description diesel fuels include any 

petroleum derived substance with 

CASRN’s that overlap the diesel fuel 

predominant carbon range or boiling 

point range, or are otherwise identified 

as diesel fuel. This approach would 

cover a much greater number of 

CASRNs than the recommended 

description. EPA is not recommending 

this approach because it would include 

many compounds that are not suitable 

to run in a diesel engine, and would be 

challenging for permit writers and 

applicants to implement, based on the 

common methods of determining the 

composition of fracturing fluids. 

Questions Related to the Diesel Fuels 

Description 

Do the six CASRNs in the 

recommended description adequately 

describe diesel fuels? If not, what other 

factors should be considered in the 

definition? Are there additional 

CASRNs that should be included? Are 

there any among the six that do not 

belong? Please address the relative 

importance of having a description that 

is static and unchanged versus 

capturing new chemical compounds 

being developed that are substantially 

similar to the six recommended 

CASRNs. 

• Would a description based on 

chemical, physical and use-based 

attributes, such as the five-consideration 

alternative EPA considered in (i), more 

adequately and appropriately 

characterize diesel fuels in a manner 

that prevents endangerment of human 

health and underground sources of 

drinking water on an ongoing basis? Are 

there other ways the Agency could 

address any existing or newly 

developed compounds, such as CASRN 

64741–44–2, not on the current list of 

six CASRNs in the draft guidance that 

may meet the chemical, physical and 

use-based attributes of the six CASRNs 

of the recommended description of 

diesel fuels, whether or not they have 

‘‘diesel fuels’’ in the name or 

description? 

• Would approach (ii), based on the 

strict limits of the TSCA physical and 

chemical characteristics, but with no 

reference to suitability for use in a 

diesel engine, be a more appropriate 

description for permitting diesel fuels 

under the EPA UIC Program? Please 

explain why this approach is preferred. 

• Would approach (iii), which 

captures many more compounds that 

may or may not be suitable to run a 

diesel engine, more adequately and 

appropriately characterize diesel fuels 

for EPA UIC permitting purposes? How 

would you suggest permit writers and 

applicants efficiently and effectively 

identify chemicals meeting this 

description? 

• What other approaches should EPA 

consider in describing diesel fuels? 

In the 2005 Energy Policy Act, 

Congress revised the SDWA definition 

of ‘‘underground injection’’ to 

specifically exclude from UIC regulation 

the ‘‘underground injection of fluids or 

propping agents (other than diesel fuels) 

pursuant to hydraulic fracturing 

operations related to oil, gas, or 

geothermal production activities’’ 

(SDWA Section 1421(d)(1)(B)). The 

Energy Policy Act of 2005 does not 

specify a threshold concentration or 

percentage of diesel fuels in the HF 

injectate that would qualify for 

exclusion from regulation. EPA requests 

comment on whether some de minimis 

level of diesel fuel constituents in HF 

fluids or propping agents should be 

used. Commenters who support such an 

approach should also recommend how 

such a de minimis standard should be 

defined or described and explain the 

basis for their recommendations. 

b. Diesel Fuels Usage Information 

Questions Related to Diesel Fuels Usage 

Information 

• EPA seeks reliable data about 

volumes and frequency of diesel fuel 

usage in hydraulic fracturing fluids or 

propping agents (based on the 

recommended description). EPA 

welcomes data of this nature at any 

time. 

• In developing the draft guidance, 

EPA found that the primary uses of 

diesel fuels in hydraulic fracturing are 

as a primary base (or carrier) fluid, or 

added to hydraulic fracturing fluids as 

a component of a chemical additive. In 

some cases diesel fuels-based fracturing 

fluids are more efficient for transporting 

and delivering propping agents into 

fractures, as compared to water-based 

compounds. As an additive component, 

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Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices 27455 

diesel fuels may be used for a range of 

purposes, including adjusting fluid 

properties (e.g., viscosity and lubricity) 

or as a solvent to aid in the delivery of 

gelling agents. EPA seeks additional 

information on the uses of diesel fuels 

during underground injection associated 

with hydraulic fracturing, and 

information about the efficacy of any 

substitutes for diesel fuels, including 

where substitution may be infeasible or 

raise other technical issues. 

c. Permit Duration and Well Closure 

UIC regulations provide for Class II 

permits to be issued up to the operating 

life of the facility, or for a shorter 

period. Class II UIC permits usually 

extend through the time of plugging, 

abandonment and closure of a well. 

However, because hydraulic fracturing 

activities are immediately followed by 

oil or gas production, the draft guidance 

recommends two approaches for 

permitting wells allowable under the 

UIC Class II regulations to address the 

unique nature of hydraulic fracturing. 

EPA permit writers may: (1) Issue shortduration permits and convert wells out 

of the UIC program upon completion of 

the diesel fuels hydraulic fracturing 

activity, or (2) they may assign the well 

to ‘‘temporarily abandoned’’ status. The 

first approach releases the well from 

UIC requirements after the permit 

expires, while the second maintains the 

permit in active status until final 

plugging and abandonment of the well, 

with the possibility of reduced 

monitoring and reporting during 

production. The second approach may 

be beneficial to operators who might 

conduct future hydraulic fracturing of 

the well using diesel fuel, as it would 

avoid the need for them to obtain a new 

UIC permit for this activity. 

Question Related to Permit Duration 

and Well Closure 

• What additional approaches should 

EPA consider for UIC permitting of 

diesel fuels hydraulic fracturing 

injection wells to effectively address 

well closure, plugging and 

abandonment requirements? 

d. Area of Review. 

Delineating and evaluating an AoR is 

one of the cornerstones of the UIC 

Program. It ensures that there are no 

conduits in the vicinity of the injection 

well that could enable fluids to migrate 

into USDWs. Before proceeding with the 

project, owners or operators must define 

the appropriate AoR; assess that area for 

conduits of potential fluid movement; 

and, if necessary, perform corrective 

action, such as the plugging of 

improperly abandoned and orphaned 

wells, or re-siting the well to account for 

any conduits that could potentially 

cause migration of contaminants into 

USDWs. There are two methods for 

delineating AoR: (1) Determining the 

zone of endangering influence (ZEI), or 

(2) using a minimum one-quarter (1⁄4) 

mile fixed radius around the well. The 

recommended approach in the draft 

guidance provides four alternatives to 

these approaches that address the 

importance of using a site-specific area 

of review calculation and take into 

account not only the wellhead, but also 

the horizontal section of the well. EPA 

also recommends EPA permit writers 

avoid using the modified Theis equation 

when delineating the AoR. 

Questions Related to Area of Review 

• What additional area of review 

delineation approaches would you 

consider effective for the purposes of 

permitting hydraulic fracturing using 

diesel fuels? 

• How would you ensure that the area 

of review appropriately accounts for the 

horizontally drilled sections of the well 

without being computationally 

burdensome? 

• Are there circumstances where it 

would be appropriate to use the 

standard approaches (e.g., 1⁄4 mile 

radius around the well) for determining 

AoR? Commenters should explain how 

the standard approach would provide 

appropriate protection for USDWs. 

e. Information Submitted With the 

Permit Application 

Information submitted and evaluated 

during the permit application process 

supports permitting decisions and 

ensures that appropriate safeguards 

(e.g., permit conditions) are established 

to prevent or remedy contamination to 

USDWs. HF using diesel fuels may pose 

a number of unique risks to USDWs. 

Due to high injection pressures, there is 

potential to induce fractures that may 

serve as conduits for fluid migration, 

including harmful chemicals found in 

diesel fuels. In addition, there has been 

concern about induced seismic events 

related to Class II activities. The UIC 

regulations allow flexibility in 

permitting to account for local 

conditions and practices. Under 40 CFR 

144.52(a)(9), EPA permit writers may 

request and review additional 

information from the owner or operator 

when evaluating a permit application 

for a diesel fuels HF well. 

Questions Related to Information 

Submitted With the Permit Application 

• Standard industry research and 

exploration field collections, such as 

geologic cores, outcrop data, seismic 

surveys, and well logs, provide 

additional data on the injection and 

confining zones, including their areal 

extent, mineralogy, porosity, 

permeability, and capillary pressures 

and geology or facies changes. Access to 

this data could provide EPA with 

critical information needed to make 

effective permit determinations. Should 

EPA recommend collection of such data 

with the permit application? 

Commenters should consider the 

relative importance of these data to 

protection of human health and 

underground sources of drinking water 

versus any additional workload for 

applicants. 

• Geomechanical characteristics of 

the confining zone such as, information 

on fractures, stress, ductility, rock 

strength, and in situ fluid pressures, 

help predict the propagation of fractures 

and indicate the potential risk of fluid 

migration. Should EPA recommend 

collection of geomechanical data with 

the permit application to assist EPA in 

making effective permit determinations? 

Commenters should consider the 

relative importance of these data to 

protection of human health and 

underground sources of drinking water 

versus any additional workload for 

applicants. 

• Should the Agency request 

submittal of seismic data, such as the 

presence and depth of known seismic 

events and a determination that 

injection would not cause seismicity 

that interferes with containment, with 

the permit application? How useful 

would inclusion of these data be to 

minimize potential risk of 

endangerment to USDWs? Please 

provide rationale in support of your 

response. 

• What other information, if any, 

should EPA recommend be submitted 

with the permit application to make 

permitting decisions that are protective 

of human health and underground 

sources of drinking water? 

f. Monitoring 

Question Related to Monitoring 

• The recommended monitoring 

approaches include specifications for 

mechanical integrity testing prior to and 

after hydraulic fracturing injection using 

diesel fuels. These recommendations 

ensure that the well maintains integrity 

during operations, given the high 

pressures and nature of fluids injected 

during hydraulic fracturing. What 

additional approaches for monitoring of 

well integrity should EPA consider to 

ensure safe and effective injection well 

operation? 

mstockstill on DSK4VPTVN1PROD with NOTICES

27456 Federal Register / Vol. 77, No. 91 / Thursday, May 10, 2012 / Notices 

1Section 716 of Public Law 111–203, 124 Stat. 

1376; 15 U.S.C. 8305. 

2See, section 716(a) of the Dodd-Frank Act; 15 

U.S.C. 8305(a). 

3See, section 716(b)(1) of the Dodd-Frank Act; 15 

U.S.C. 8305(b)(1). 

4Pursuant to section 711 of the Dodd-Frank Act, 

the term ‘‘prudential regulator’’ as used in section 

716 has the same meaning as in the Commodity 

Exchange Act. 15 U.S.C. 8301. 

5Section 716(k) of the Dodd-Frank Act; 15 U.S.C. 

8305(k). 

6See 7 U.S.C. 1a(39)(A). 

7See id. at section 1a(39)(C). 

8See id. at section 1a(39)(B). 

9See section 716(h) of the Dodd-Frank Act; 15 

U.S.C. 8305(h). 

10See section 701 of the Dodd-Frank Act; 15 

U.S.C. 8301 note. 

• According to standard industry 

monitoring practice, data are collected 

through means such as microseismic 

monitoring and/or tiltmeter monitoring 

to characterize the actual fracture 

network and compare it with the 

predictive fracture model. Should EPA 

include a microseismic and/or tiltmeter 

monitoring, or any other approaches, in 

the guidance recommendations, to 

ensure that the fracture network does 

not pose a potential risk to USDWs? 

Please provide a rationale for your 

answer. 

• Baseline and periodic monitoring of 

water quality for all USDWs within the 

area of review help demonstrate the 

protectiveness of permitted operations 

and are recommended by the American 

Petroleum Institute (HF1, 2009). Water 

quality monitoring can be especially 

important in cases where owners or 

operators wish to exercise a flexibility 

recommended in the guidance of either 

being released from the UIC program or 

operating as temporarily abandoned 

after injection has ceased and 

production has begun. To utilize these 

flexibilities, owners or operators need to 

demonstrate that their operations have 

not (or will not) endangered USDWs in 

the project area. Should EPA include 

baseline and/or periodic monitoring of 

USDWs as a recommended monitoring 

approach in the guidance? If so, what 

water quality monitoring data should be 

included to best ensure nonendangerment of USDWs? 

Dated: May 4, 2012. 

Nancy K. Stoner, 

Acting Assistant Administrator, Office of 

Water. 

[FR Doc. 2012–11288 Filed 5–9–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

FEDERAL RESERVE SYSTEM 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

Guidance on the Effective Date of 

Section 716 of the Dodd-Frank Wall 

Street Reform and Consumer 

Protection Act 

AGENCY: Office of the Comptroller of the 

Currency (OCC), Treasury; Board of 

Governors of the Federal Reserve 

System (Board); and Federal Deposit 

Insurance Corporation (FDIC). 

ACTION: Notice of joint guidance. 

SUMMARY: The Office of the Comptroller 

of the Currency (‘‘OCC’’), Board of 

Governors of the Federal Reserve 

System (‘‘Board’’), and the Federal 

Deposit Insurance Corporation (‘‘FDIC’’) 

are issuing this guidance to provide 

clarity regarding the effective date of 

section 716 of the Dodd-Frank Wall 

Street Reform and Consumer Protection 

Act (‘‘Dodd-Frank Act’’) 1 with respect 

to entities for which each is the 

prudential regulator. 

DATES: May 10, 2012. 

FOR FURTHER INFORMATION CONTACT: 

OCC: Ellen Broadman, Director, 

Securities and Corporate Practices 

Division (202) 874–5210, Ted Dowd, 

Assistant Director, Securities & 

Corporate Practices Division (202) 

874–5327, or Jamey Basham, Assistant 

Director, Legislative and Regulatory 

Activities Division (202) 874–5090, 

Office of the Comptroller of the 

Currency, 250 E Street SW., 

Washington, DC 20219. 

Board: Christine Graham, Senior 

Attorney (202) 452–3005, or 

Christopher Paridon, Counsel (202) 

452–3274, Legal Division; Board of 

Governors of the Federal Reserve 

System, 20th and C Streets NW., 

Washington, DC 20551. For the deaf, 

hard of hearing, and speech impaired 

only, teletypewriter (TTY), (202) 263– 

4869. 

FDIC: Thomas Hearn, Counsel (202) 

898–6967, or Mark Flanigan, Counsel 

(202) 898–7426, Legal Division; 

Federal Deposit Insurance 

Corporation, 550 17th Street NW., 

Washington, DC 20429. For the 

hearing impaired only, 

telecommunications device for the 

deaf TDD: 800–925–4618. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 716 prohibits the provision of 

Federal assistance to any entity defined 

under that section to be a swaps entity 

with respect to any swap, security-based 

swap, or other activity of the swaps 

entity.2 ‘‘Federal assistance’’ is defined 

for purposes of section 716 as ‘‘the use 

of any advances from any Federal 

Reserve credit facility or discount 

window that is not part of a program 

with broad-based eligibility under 

section 13(3)(A) of the Federal Reserve 

Act,’’ and ‘‘[FDIC] insurance or 

guarantees’’ for certain purposes 

specified in section 716(b)(1).3

The prudential regulator (as defined 

in the Commodity Exchange Act) 4 of a 

swaps entity is authorized to prescribe 

rules implementing section 716 with 

respect to that swaps entity.5 The Board 

is the prudential regulator for state 

member banks, bank holding 

companies, savings and loan holding 

companies, state branches and agencies 

of foreign banks, and certain other 

swaps entities.6 In addition, the Board is 

charged with responsibility for 

establishing and overseeing the 

provision of credit through any Federal 

Reserve credit facility and the discount 

window. The FDIC is the prudential 

regulator for state nonmember banks 

and state savings associations.7 In 

addition, the FDIC is charged with 

insuring the deposits of banks and 

savings associations and managing the 

Deposit Insurance Fund. The OCC is the 

prudential regulator for national banks, 

federal savings associations, and Federal 

branches and agencies of foreign banks.8

Effective Date 

Section 716(h) provides that its 

general prohibition on Federal 

assistance is ‘‘effective 2 years following 

the date on which this Act is 

effective.’’ 9 Section 716 is contained in 

Title VII of the Dodd-Frank Act. Section 

701 in Title VII provides that Title VII 

may be cited as the ‘‘Wall Street 

Transparency and Accountability Act of 

2010.’’ 10 Thus, while enacted within 

the Dodd-Frank Act, Title VII is itself 

‘‘an Act,’’ and references within Title 

VII to ‘‘this Act’’ should be, in context, 

interpreted as references to the Wall 

Street Transparency and Accountability 

Act of 2010, not to the broader DoddFrank Act. This interpretation is 

supported by the fact that section 

716(m) refers specifically to the DoddFrank Act by name—a reference that 

would not be necessary if the reference 

to ‘‘this Act’’ in section 716(h) and other 

provisions of the Wall Street 

Transparency and Accountability Act 

were intended to refer to the DoddFrank Act. Nothing in the context of 

subsection (m) or other provisions of 

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