Language included in the Energy Policy Act of 2005 (EPACT) relating to the use of diesel fuel in hydraulic fracturing (fracking) “is extremely unclear and is open to interpretation,” making it unclear if the use of diesel fuel in fracking operations would be a violation of the Safe Drinking Water Act (SDWA), according to a Texas Railroad Commission (RRC) spokesman.
Last week Reps. Henry A. Waxman (D-CA), Edward J. Markey (D-MA) and Diana DeGette (D-CO) said a dozen oil and gas service companies injected more than 32 million gallons of diesel fuel or fracking fluids containing diesel fuel in wells in 19 states between 2005 and 2009. According to the House members, diesel-containing fluids were used most frequently in Texas, which accounted for half of the total volume injected. But RRC spokesman Ramona Nye told NGI’s Shale Daily that RRC regulations do not prohibit the use of diesel fuel in fracking activities.
“Such use would not be a violation of commission rules, unless the operator caused or allowed pollution during such use, which the operators did not,” Nye told NGI’s Shale Daily. “Furthermore, it is not clear whether or not these operators’ use would be a violation of the SDWA because EPA [Environmental Protection Agency] has not formally clarified its interpretation of the language in the EPACT of 2005.”
“In addition, EPA has promulgated no formal regulations. In fact, EPA remained silent on the issue from 2005 until the summer of 2010, when it changed the wording of its website.”
In in a letter to EPA administrator Lisa Jackson, the House members said their investigation indicated “that the oil and gas industry has injected millions of gallons of diesel fuel and hydraulic fracturing fluids containing diesel fuel since 2005. These activities appear to be a violations of the Safe Drinking Water Act because the companies did not obtain permits authorizing the injection of diesel fuel.” In 2005 Congress exempted hydrofracking fluids from the SDWA except when the fluids contain diesel.
Last June the EPA posted on its website a statement requiring producers that use diesel fuel in fracking of shale natural gas rock to receive prior authorization under the U.S. Underground Injection Control program of the SDWA.
Last month a federal appeals court in Washington, DC, rejected a motion by EPA to dismiss a case brought by the Independent Petroleum Association of America (IPAA) alleging that the agency failed to go through the proper channels to regulate diesel fuel used in the fracking process (see Shale Daily, Jan. 24). The court asked the IPAA and the EPA to file briefs on the merits of the case.
The House members’ investigation apparently covered only the years 2005-2009, while the EPA “made these changes to their website language for the first time only in mid-summer 2010, and we do not believe that change constitutes proper rulemaking,” according to Halliburton Co.
In their letter the House members suggested that Halliburton used 7.2 million gallons in violation of federal requirements. But that “is not accurate, because there are currently no requirements in the federal environmental regulations that require a company to obtain a federal permit prior to undertaking a hydraulic fracturing project using diesel,” a Halliburton spokesman said.
BJ Services, which was singled out by the House members as having used the most diesel-containing fluids during the five year period they investigated — more than 11.5 million gallons — no longer uses diesel fuel or diesel fuel-related products in any of its hydraulic fluids, company spokesman Gary Flaharty told NGI’s Shale Daily.
“We’ve completely phased them out,” he said.
EPA during congressional hearings has “characterized the federal regulation as neither addressing or prohibiting the use of diesel in fracturing fluids,” according to BJ Services. “We certainly believe that retroactively suggesting that there’s a permitting requirement is completely improper.”
In addition to BJ Services and Halliburton, the lawmakers said four other companies — RPC (4.3 million gallons), Sanjel (3.6 million gallons), Weatherford (2.1 million gallons) and Key Energy Services (1.6 million gallons) — used more than one million gallons of diesel fuels and fluids containing diesel between 2005 and 2009. Companies injecting less than one million included Basic Energy Services (204,013 gallons), Complete (4,625 gallons), Frac Tech (159,371 gallons), Superior (833,431 gallons), Schlumberger (443,689 gallons) and Trican (92,537 gallons).
In addition to the 16 million gallons used in Texas, the companies injected at least one million gallons of diesel-containing fluids in Oklahoma (3.3 million gallons), North Dakota (3.1 million gallons), Louisiana (2.9 million gallons), Wyoming (2.9 million gallons) and Colorado (1.3 million gallons), the House lawmakers said.
And state regulators seemed to be blind to the use of diesel fuel in hydrofracking, they noted. “An engineer from the Colorado Oil and Gas Conservation Commission, for example, said that diesel is ‘rarely used’ and said he knew of only one time diesel fuel was used in hydraulic fracturing in Colorado. The Railroad Commission of Texas, which regulates oil and gas activity in that state, responded that it only recently learned that a handful of companies may have used diesel fuel without prior approval.”
As for the risk to ground water, “oil and gas service companies did not keep records of whether they operated in or near underground sources of drinking water, [but] they were able to report on whether their wells were drilling in coalbed methane formations. Diesel used in coalbed methane formations is of particularly concern, since these formations tend to be shallower and closer to drinking water sources than conventional oil and gas production wells,” Waxman, Markey and DeGette said.
Halliburton, BJ Services and Schlumberger told the committee that they stopped using diesel fuel in coalbed methane formations located in underground sources of drinking water, and three smaller companies reported using a limited volume of products containing diesel in coalbed methane wells, but did not provide information on the proximity of these wells to drinking water sources.
“We are unable to draw definitive conclusions about the potential impact of these injections on public health or the environment,” Waxman, Markey and DeGette wrote in their letter to Jackson. “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 waters. Moreover, because they 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.”
“We urge you [the EPA] to examine the use of hydraulic fracturing fluids containing diesel fuel as part of your investigation into the industry’s practices. This appears to be an area of significant noncompliance with the requirements of the Safe Drinking Water Act,” they said.
Jackson signaled last week that federal regulation of fracking may not be needed (see related story).
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