Oil and gas service companies injected tens of
millions of gallons of diesel fuel into onshore wells in more than a dozen
states from 2005 to 2009, Congressional investigators have charged. Those
injections appear to have violated the Safe Water Drinking Act, the
investigators said in a letter to the Environmental Protection Agency on
The diesel fuel was used by drillers as part of a contentious process known as
hydraulic fracturing, or fracking, which involves the high-pressure injection
of a mixture of water, sand and chemical additives — including diesel fuel —
into rock formations deep underground. The process, which has opened up vast
new deposits of natural gas to drilling, creates and props open fissures in the
rock to ease the release of oil and gas.
But concerns have been growing over the potential for fracking chemicals —
particularly those found in diesel fuel — to contaminate underground sources of
“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,” said Representative Henry A. Waxman of California and two other
Democratic members of the House Committee on Energy and Commerce, in the
letter. “This appears to be a violation of the Safe Drinking Water Act.”
Oil and gas companies acknowledged using diesel fuel in their fracking fluids,
but they rejected the House Democrats’ assertion that it was illegal. They said
that the E.P.A. had never properly developed rules and procedures to regulate
the use of diesel in fracking, despite a clear grant of authority from Congress
over the issue.
“Everyone understands that E.P.A. is at least interested in regulating
fracking,” said Matt Armstrong, a lawyer with the Washington firm Bracewell
& Giuliani, which represents several oil and gas companies. “Whether the
E.P.A. has the chutzpah to try to impose retroactive liability for use of
diesel in fracking, well, everyone is in a wait-and-see mode. I suspect it will
have a significant fight on its hands if it tried it do that.”
Regardless of the legal outcome, the Waxman findings are certain to intensify
an already contentious debate among legislators, natural gas companies and
environmentalists over the safety of oil and gas development in general, and
fracking in particular.
Oil services companies had traditionally used diesel fuel as part of their
fracturing cocktails because it helped to dissolve and disperse other chemicals
suspended in the fluid. But some of the chemical components of diesel fuel,
including toluene, xylene and benzene, a carcinogen, have alarmed both
regulators and environmental groups. They argue that some of those chemicals
could find their way out of a well bore — either because of migration through
layers of rock or spills and sloppy handling — and into nearby sources of
An E.P.A. investigation in 2004 failed to find any threat to drinking water
from fracking — a conclusion that was widely dismissed by critics as politically
motivated. The agency has taken up the issue again in a new investigation
started last year, although the results are not expected until 2012 at the
The House committee began its own investigation in February last year, when
Democrats were in the majority. In Monday’s letter, Mr. Waxman, along with
Representatives Edward J. Markey of Massachusetts and Diana DeGette of
Colorado, said that they were so far “unable to draw definitive conclusions
about the potential impact of these injections on public health or the
Still, the investigators said that three of the largest oil and gas services
companies — Halliburton, Schlumberger and BJ Services — signed an agreement
with the E.P.A. in 2003 intended to curtail the use of diesel in fracking in
certain shallow formations.
Two years later, when Congress amended the Safe Water Drinking Act to exclude
regulation of hydraulic fracturing, it made an express exception that allowed
regulation of diesel fuel used in fracking.
The Congressional investigators sent letters to 14 companies requesting details
on the type and volume of fracking chemicals they used. Although many companies
said they had eliminated or were cutting back on use of diesel, 12 companies
reported having used 32.2 million gallons of diesel fuel, or fluids containing
diesel fuel, in their fracking processes from 2005 to 2009.
The diesel-laced fluids were used in a total of 19 states. Approximately half
the total volume was deployed in Texas, but at least a million gallons of
diesel-containing fluids were also used in Oklahoma (3.3 million gallons);
North Dakota (3.1 million); Louisiana (2.9 million); Wyoming (2.9 million); and
Colorado (1.3 million).
Where this leaves the companies in relation to federal law is unclear.
Mr. Waxman and his colleagues say that the Safe Drinking Water Act left
diesel-based hydraulic fracturing under the auspices of E.P.A.’s “underground
injection control program,” which requires companies to obtain permits, either
from state or federal regulators, for a variety of activities that involve
putting fluids underground.
No permits for diesel-based fracking have been sought or granted since the Safe
Drinking Water Act was amended in 2005.
Lee Fuller, a vice president for government relations with the Independent
Petroleum Association of America, said that was because the E.P.A. had never
followed up by creating rules and procedures for obtaining such permits and
submitting them for public comment.
The agency did quietly update its Web site last summer with language suggesting
that fracking with diesel was, indeed, covered as part of the underground
injection program, which would suggest that permits should have been obtained.
But Mr. Fuller’s organization, along with the U.S. Oil and Gas Association, has
gone to court to challenge the Web posting, arguing that it amounted to new
rule-making that circumvented administrative requirements for notice and public
The E.P.A. said Monday that it was reviewing the accusations from the three
House Democrats that the companies named were in violation of the Safe Drinking
“Our goal is to put in place a clear framework for permitting so that
fracturing operations using diesel receive the review required by law,”
Betsaida Alcantara, an E.P.A. spokeswoman, said in an e-mail message. “We will
provide further information about our plans as they develop.”