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 Railroad Commission of Texas (RRC) spokesman.

Earlier this week Reps. Henry A. Waxman (D-CA), Edward J. Markey (D-MA) and Diana DeGette (D-CO) said a dozen oil and gas services 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 (see Shale Daily, Feb. 1). According to the House members, diesel-containing fluids were used most frequently in Texas, which has more drilling than anyplace in the nation. But RRC spokeswoman 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 said. “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.”

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 Underground Injection Control program of the SDWA.

Last week 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 has now 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,” said 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. BJ Services merged with Baker Hughes Inc. last year (see Daily GPI, April 29, 2010).

EPA during congressional hearings has “characterized the federal regulation as neither addressing nor 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.”

A coalition of 48 House lawmakers recently fired off a letter to Interior Secretary Ken Salazar expressing their support for the department’s plans to require public disclosure of the chemicals that producers use in the fracking process (see Shale Daily, Jan. 19).

Some in the industry have been proactive in disclosing chemicals and setting up an online registry of chemicals (see Shale Daily, Jan. 5). Some gas producers have already begun disclosing the components of their fracking fluids, while the major national and regional fracking service providers have agreed to submit “timely and complete information” to help the EPA conduct its study on fracking and its impact on drinking water quality (see Shale Daily,Dec. 16, 2010;Nov. 3, 2010).

In November the EPA sent letters to nine major national and regional fracking service providers ordering them to submit information as part of its study on fracking and its impact on drinking water quality. Halliburton was the only company that failed to comply, forcing the EPA to subpoena the company (see Shale Daily, Nov. 10, 2010). In December Halliburton reached an agreement to turn over to EPA all documents related to fluids used in the fracking process (see Shale Daily, Dec. 9, 2010; Nov. 16, 2010).