Emily K. Slagle

February 5, 2011

A recent letter from members of a congressional investigative committee to the Administrator of the U.S. Environmental Protection Agency (EPA), Lisa Jackson, revealed that over 32 million gallons of diesel fuel were used in hydraulic fracturing between 2005 and 2009. The investigation found that diesel fuel was used in hydraulic fracturing operations in 19 states, with half of the 32 million gallons being used in Texas. A 2004 EPA report stated that diesel fuel posed a great threat to underground drinking water sources due to the toxic compounds that it contains. The service companies in charge of the drilling operations could not give the committee any information as to whether the drilling operations using diesel were located near underground sources of water, stating that well operators were responsible for tracking that information.

In the energy bill of 2005, Congress exempted hydraulic fracturing from regulation under the Safe Drinking Water Act (SDWA). Under the SDWA, the use of fluids for hydraulic fracturing does not fall under the definition of "underground injection," thus allowing a drilling operation to go forward without an underground injection permit from the EPA. This exemption contains one important limitation--it does not apply to diesel fuels. Rep. Henry A. Waxman, one of the members of the congressional investigation committee, interpreted this provision as requiring a service operator to obtain a permit before using diesel fuel. Service operators have rejected this interpretation, stating that the EPA has not developed regulations in this area and that no permit required.

Further complicating this issue is a "memorandum of agreement" (MOA) which was signed in 2003 by the EPA and three of the major service providers, Haliburton, BJ Services, and Schlumberger. The MOA stated that the service providers would not use diesel fuel in operations to get methane from coal beds because these areas are generally near to groundwater sources. The current confusion surrounding the permitting process can be attributed in part to the fact that EPA officials had assumed that the use of diesel fuels had been curtailed based on the MOA. However, this agreement only covered one very narrow circumstance and lacked any kind of enforcement measure. The EPA's subsequent lack of a clear regulatory system for the use of diesel fuels has allowed for the confusion surrounding permitting to prevail for several years.

While it remains unclear what, if any, liability service companies may face for past use of diesel fuel without a permit, it is clear that EPA plans to step up its regulatory scheme. The EPA is currently conducting a study on the impacts of hydraulic fracturing on drinking water and a spokesperson from the EPA has stated that the EPA has "embarked on an expeditious effort to clarify the permitting process as it relates to diesel use in hydraulic fracturing."

Sources:

Waxman, Markey, and DeGette Investigation Finds Continued Use of Diesel in Hydraulic Fracturing Fluids, U.S. House of Representatives, Committee on Energy & Com. (Jan. 31, 2011), http://democrats.energycommerce.house.gov/index.php?q=news/waxman-markey-and-degette-investigation-finds-continued-use-of-diesel-in-hydraulic-fracturing-f.

Hydraulic Fracturing, Envtl. Protection Agency (last updated Jan. 4, 2011), http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/index.cfm.

Mike Soraghan, Fracking Companies Inject 32M Gallons of Diesel, House Probe Finds, E&E News PM (Jan. 31, 2011), http://stevens.vermontlaw.edu:2069/eenewspm/2011/01/31.

Tom Zeller, Jr., Gas Drilling Technique is Labeled Violation, N.Y. Times, Jan. 31, 2011, http://www.nytimes.com/2011/02/01/business/energy-environment/01gas.html.