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The 2005 Bush-Cheney Energy Policy Act famously exempted hydraulic fracturing from the Safe Drinking Water Act. But it made one small exception: diesel fuel. The Policy Act states that the term “underground injection,” as it relates to the Safe Drinking Water Act, “excludes the underground injection of fluids or propping agents (other than diesel) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities [italics added].” But a congressional investigation has found that oil and gas service companies used tens of millions of gallons of diesel fuel in fracking operations between 2005 and 2009, thus violating the Safe Drinking Water Act. Hydraulic fracturing is a method of drilling that injects large volumes of water, chemicals, and sand underground at high pressure to break open rock formations and release stores of natural gas. In some cases, however, water based fluids are less effective and diesel fuel or other hydrocarbons may be used.
In a letter to EPA Administrator Lisa Jackson, the congressional committee noted that between 2005 and 2009, “oil and gas service companies injected 32.2 million gallons of diesel fuel or hydraulic fracturing fluids containing diesel fuel in wells in 19 states.” None of the companies sought or received permits to do so. “This appears to be a violation of the Safe Drinking Water Act,” the letter states. “It also means that the companies injecting diesel fuel have not performed the environmental reviews required by the law.”
Moreover, because the necessary environmental reviews were circumvented, the companies were unable to provide data on whether they had used diesel in fracking operations in or near underground sources of drinking water. Diesel fuel contains a number of toxic constituents including benzene, toluene, ethylbenzene, and xylene, which have been linked to cancer and other health problems.
In the last few years, shale gas extraction has increased exponentially, raising fears that drinking water wells and underground aquifers may be at risk. It has become a particularly sensitive issue in the northeast’s Marcellus Shale, which underlies parts of Ohio, West Virginia, Pennsylvania, and New York. Later this month the Delaware River Basin Commission will hold public hearings on drilling in the watershed—a source of drinking water for more than 15 million people.
The EPA is currently conducting its own study of the impact of hydraulic fracturing on drinking water supplies due out in late 2012. But will companies that have violated the Safe Drinking Water Act since 2005 be held accountable?
Matt Armstrong, a lawyer with the Washington firm Bracewell & Giuliani, which represents several oil and gas companies, told the New York Times, “Everyone understands that E.P.A. is at least interested in regulating fracking.” But: “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.”
ADAM FEDERMAN is a writer in New York and a regular contributor to the Earth Island Journal, where this article originally appeared.