Buffalo Environmental Law Journal

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For more than 20 years after the 1974 enactment of the Safe Drinking Water Act ("SD WA ), the US. Environmental Protection Agency interpreted the SDWA as not applying to hydraulic fracturing. The United States Eleventh Circuit ruled in 1997 that the SDWTA applied to fracturing, but the EPA chose not to consent to that interpretation outside the Eleventh Circuit. Further the EPA continued to take the position that its existing SDWTA regulations did not apply to hydraulic fracturing, and it never promulgated new regulations to cover fracturing. In 2005, the Congress passed legislation that generally is read as applying the SDWfA to hydraulic fracturing if diesel is used in the fracturing fluid, but as excluding application qf the SDWA ifdiesel is not used. After that statutory change, the EPA still appeared to maintain its previous position that its existing regulations did not appl} to fracturing. In 2010, however the EPA changed course, explicitl} taking the position that its existing regulations appl} to hydraulic fracturing if diesel is used. Twu industry groups have challenged the EPA & position in court, asserting that the EPA substantiall} changed its interpretation of an existing regulation, thereby imposing nev regulatory burdens, and that the EPA could not do that without following the procedures required under the Administrative Procedures Act ("APA") for enacting a new regulation. The resolution qf the litigation could have implications not only for the use qf diesel in hydraulic fracturing, but also more generally'for establishing what limits exist on an agency's authority to change its interpretation qf regulations wiithout foIllowing APA procedures