Fracking Beyond the Law: Despite Industry Denials, Investigation Reveals Continued Use of Diesel in Hydraulic Fracturing

At least 33 companies drilled 351 wells in 12 states using prohibited diesel fuels without required permits in violation of the federal Safe Drinking Water Act.

WASHINGTON, D.C. -- The illegal injection of diesel fuel during hydraulic fracturing has continued over the last four years, despite repeated denials by the drilling industry, according to a report by the Environmental Integrity Project (EIP).  In its investigation, EIP also found troubling evidence that drilling companies have been changing and eliminating their disclosures of past diesel use from the industry self-disclosure database of chemicals used in hydraulic fracturing, called FracFocus.

Injecting diesel fuel into the ground to fracture shale and extract gas or oil is a potential threat to drinking water supplies and public health because diesel contains toxic chemicals, such as benzene, that cause cancer or other serious health problems, even at low doses.

EIP’s report, “Fracking Beyond the Law,” uses self-reported data from drilling companies and federal records to document at least 33 companies fracking at least 351 wells across 12 states with fluids containing diesel from 2010 through early August 2014.   Diesel fuels were used to frack wells in Texas, Colorado, North Dakota, Arkansas, Oklahoma, Wyoming, New Mexico, Utah, Kansas, Pennsylvania, West Virginia, and Montana without required Safe Drinking Water Act permits.

“EPA and the states have an obligation to protect the public from the potential health hazards of fracking by enforcing the Safe Drinking Water Act,” said report author Mary Greene, Managing Attorney for EIP and a former EPA enforcement attorney.  “We urge EPA and the states to exercise their legal authority by immediately investigating the compliance status of these 351 wells and taking all necessary steps to make sure they are properly permitted.  Companies that inject diesel without permits should be fined for ignoring the law.”

EIP’s investigation also revealed that some oil and gas companies have been changing their disclosures submitted to FracFocus, the privately-run fracking chemical disclosure registry, in a manner that removes any and all indication of past injection of diesel.  FracFocus, which was created by industry as an alternative to mandatory disclosure to federal or state governments, allows operators to change or replace previous disclosures, at any time, without leaving any record of or justification for the change.

The fact that drilling companies have free reign to remove from FracFocus past disclosures of their own diesel use points to the need for a more transparent and reliable national system for the reporting of toxic chemicals used in hydraulic fracturing, EIP’s report concludes. Claims of trade secrets are also a barrier to an accurate accounting of what chemicals are being used.  Because of the flawed reporting system, the 351 wells identified in the EIP report are likely a low estimate.   “The public deserves more disclosure and transparency about the toxic chemicals used in hydraulic fracturing,” Greene said.  “The current reporting system must be improved.”

In 2005, Congress passed the Energy Policy Act, which exempted hydraulic fracturing from key requirements of the Safe Drinking Water Act and federal Clean Water Act. The exemption was nicknamed the “Halliburton Loophole,” after then-Vice President Cheney’s former oil and gas company, which pioneered the controversial extraction method.   As part of this loophole, Congress allowed EPA to retain its authority to prohibit the underground injection of diesel fuels unless authorized by a Safe Drinking Water Act permit.  The purpose of these permits is to safeguard public health by ensuring that diesel-containing fluids do not escape the well and contaminate underground sources of drinking water.

The potential threat of drilling to drinking water is not an abstract one.  A July 22 Pittsburgh Post-Gazette report used Pennsylvania Department of Environment Protection data to document 209 times that fracking has damaged public water supplies since 2007.

Over the last decade, drilling companies have repeatedly claimed they are no longer using diesel fuel in fracking, although a 2011 investigation by U.S. House Democrats concluded otherwise.  In February 2014, EPA sought to clarify the law by releasing guidance identifying five commonly used drilling products containing diesel fuels that require a permit prior to well fracturing.

The Environmental Integrity Project examined disclosure data submitted to FracFocus and aggregated by a Houston-based consulting firm called PIVOT Upstream Group.  Using these sources and federal records, EIP identified at least 351 wells in 12 states that have been fracked over the last four years with one or more of the five prohibited products identified as diesel in the February EPA guidance. EIP contacted these 12 states and EPA and confirmed that none of these drilling companies applied for -- or received – the required permits to frack with diesel.

EIP researchers also discovered numerous fracking fluids with high diesel content for sale online, including over a dozen products sold by Halliburton and advertised as additives, friction reducers, emulsifiers, etc.  The fact that these products are offered for sale suggest that drilling companies are buying these products without obtaining the required permits to use them.

The “Fracking Beyond the Law” report concludes that: 1) diesel use in fracking should be eliminated or at least properly permitted; 2) FracFocus needs to be improved to increase transparency and accountability; 3) companies that supply fracking products containing diesel should be required to label their products and notify operators of the need to obtain Safe Drinking Water Act permits; 4) drilling companies should fully disclose the contents of all fracking fluids, including the ingredients in trade secret products and the chemical composition of base fluid; and 5) states should list diesel-based fracking products that require a permit.


 Read the Report   View the Well Data    Listen to Press Conference Recording


NOTE TO EDITORS:  This report was initially scheduled for public release on June 19, 2014, but EIP postponed the release until August 13 and revised the report when the organization learned that drilling companies had been changing their disclosures in the FracFocus database. The updated report addresses the systemic problem raised by the fact that drilling companies have free reign to remove indications of past diesel use without explaining or justifying such changes.