Industry injected more than 32 million gallons of diesel and fluids containing diesel into wells as part of hydraulic fracturing operations between 2005 and 2009 without seeking permits from regulators, according to a report issued today by a congressional committee.
In a letter sent to Environmental Protection Agency Administrator Lisa Jackson today, Democratic Reps. Henry A. Waxman, Edward J. Markey and Diana DeGette say the diesel injections were done in wells in 19 states, likely in violation of the Safe Drinking Water Act.
According to EPA, any company that performs hydraulic fracturing using diesel fuel must receive a permit under the Safe Drinking Water Act. We learned that no oil and gas service companies have sought—and no state and federal regulators have issued—permits for diesel fuel use in hydraulic fracturing. This appears to be a violation of the Safe Drinking Water Act. It also means that the companies injecting diesel fuel have not performed the environmental reviews required by the law.
The full text of the letter is below or you can open it here.
Congress outlawed the use of diesel used in frac jobs in coal bed methane formations because drinking water and the methane targets tend to be closer together than in other formations.
When the committee started looking into the issue last year the initial response from BJ Services was that it accidentally allowed the use of diesel in some frac jobs to continue (although today’s letter seems to indicate the company has changed its tune slightly). Halliburton said the diesel ban only applied to coal bed methane formations, so it was not in error for the continued use.
What this new letter seems to indicate is that even in areas were the use of diesel was permitted in frac jobs, companies still needed to apply for a permit and prove they wouldn’t endanger drinking water supplies.
Matthew Armstrong, an attorney with Bracewell & Guiliani who represents a number of companies involved in hydraulic fracturing, says the letter from the lawmakers is misleading.
“The letter relies entirely on the notion that historically the EPA has regulated hydraulic fracturing, but that’s not the case,” Armstrong said.
The first time the EPA ever said it would require companies to file permits to use diesel in non-coal bed methane fracking operations was June 2010, Armstrong said, many months after the time period covered by the study referenced in the lawmakers’ letter.
Previously, the only referece the EPA made to regulating fracturing was in 2005 to say, generally, that it did not regulate the practice (with the exception of diesel’s use in coal bed methane formations), Armstrong said.
And even the June 2010 announcement that EPA requires permits before diesel is used in frac jobs is being challenged in federal court. Companies say the way the EPA announced the policy — on it’s web site, without first publishing it in the Federal Register or seeking public comment — is not legally binding.
Texas saw the greatest volume of diesel injected into wells via fracking:
Does this mean drinking water was contaminated with diesel? The reps say they don’t know:
We are unable to draw definitive conclusions about the potential impact of these injections on public health or the environment. The oil and gas service companies we contacted were able to provide only limited information about the proximity of their hydraulic fracturing operations to underground sources of drinking water.
Moreover, because the companies did not apply for the permits required under the Safe Drinking Water Act, the regulatory agencies that would have reviewed the permit applications knew little about the diesel injections or what their potential impact might be.