The Environmental Protection Agency (EPA) released final permitting guidance for wells that will be hydraulically fractured with diesel fuel. The guidance contains many important protections, based on solid science and EPA’s long experience with underground injection – protections that in many cases are stronger than state rules. But more needs to be done to protect drinking water because diesel continues to be used in fracturing fluids – as recently as last month, according to records on FracFocus.
Unfortunately, EPA has not banned the use of diesel in fracturing fluids. But the Safe Drinking Water Act requires EPA to protect drinking water from diesel fracturing. As such, we believe that it is crucial for EPA to begin a formal rulemaking process to develop legally binding regulations for hydraulic fracturing with diesel. Rather than writing new rules, EPA chose to regulate diesel fracturing under existing regulations – the so-called “Class II” rules – but those rules were written with different processes in mind. While the guidance contains important protections that specifically address the unique threats of diesel fracturing, states may choose not to adopt these protections, leaving drinking water at risk.
EPA regulates the underground injection of fluids – everything from hazardous waste to septic systems – through the Underground Injection Control (UIC) Program of the Safe Drinking Water Act (SDWA). However, due to the so-called Halliburton Loophole in SDWA, created by Congress in 2005, EPA does not have the authority to regulate the underground injection of fluids for the purpose of hydraulic fracturing – except when diesel fuel is used in the fracturing fluid.
If an oil or gas operator wants to use hydraulic fracturing fluid that includes diesel fuel, they are required by law to get a UIC permit. The guidance released by EPA provides the roadmap for how regulators should evaluate those permit applications and what types of protections are needed.
NRDC and a coalition of environmental groups submitted comments on EPA’s proposed guidance in August of 2012. Our primary recommendation was that EPA should ban the use of diesel in hydraulic fracturing fluids. Given the potential health and environmental impacts, the use of diesel presents an unacceptable risk and should be prohibited. Alternatives that perform the same function as diesel are available, which is why a panel of experts found that there are no technical or economic barriers to banning diesel.
EPA made a number of important improvements recommended by NRDC between the draft and final guidance, including:
- Recommending that regulators ask drillers to submit information on the seismic history of a region, which can help address the risk of induced earthquakes.
- Recommending that regulators require drillers to perform important tests on the well casing and cement, to ensure that wells are constructed properly. Proper well design and construction are crucial to protecting drinking water.
Unfortunately, the guidance is still falls short in other areas, including:
- EPA reduced the number of chemicals that are considered “diesel fuels,” meaning that some types of diesel may not be covered by the rules.
- The guidance for how drillers should identify potential pathways through which contaminants could reach groundwater, called the “Area of Review” requirements, are too weak and leave drinking water at risk.
Diesel poses serious risks to the environment and human health. We will continue to press EPA to ban the use of diesel and other dangerous chemicals in hydraulic fracturing fluids altogether. In the meantime, EPA must begin a rulemaking process to turn this guidance into rules with the full weight of EPA’s legal authority.