Letter to Sylvia Burwell, Director Office of Management and Budget - Finalize Strong EPA Guidance on Hydraulic Fracturing with Diesel Fuels

Letter

The Honorable Sylvia Mathews Burwell
Director
Office of Management and Budget
725 17th Street, NW
Washington, DC 20503

Dear Director Burwell:

Last month, the Environmental Protection Agency (EPA) sent to the White House Office of Management and Budget (OMB) its permitting guidance for oil and gas hydraulic fracturing activities using diesel fuels. We urge you to finalize this long overdue guidance expeditiously and to reject any industry efforts to weaken or delay it.

In 2005, Congress passed the Energy Policy Act, which contained a provision limiting the application of the Safe Drinking Water Act to hydraulic fracturing except when diesel is used. Congress modified the definition of "underground injection" to exclude "the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities." This language reflects the limited information available to Congress at the time, which suggested that diesel fuel was the primary constituent of concern in hydraulic fracturing fluids.

The effect of the Energy Policy Act was to exempt hydraulic fracturing from underground injection control permit requirements unless the fluid being injected is diesel fuel. But the lack of guidance from EPA has created questions about the application of the law. Seven years passed before EPA issued draft guidance for the permitting of hydraulic fracturing using diesel fuels. Sixteen more months passed before EPA sent the guidance to OMB for review. During this period, the permitting regime for hydraulic fracturing operations using diesel fuel has remained unclear.

Industry has taken advantage of the lack of clarity. In 2011, Democrats on the House Energy and Commerce Committee released data showing that oil and gas service companies injected more than 32 million gallons of diesel fuel or fracturing fluids containing diesel fuel between 2005 and 2009. Moreover, none of the state agencies or EPA regional offices had issued underground injection control permits for the use of hydraulic fracturing fluids containing diesel. These findings surprised many industry observers, as the oil industry and at least one senior EPA official appointed by President George W. Bush had assured the public that diesel fuel was no longer used in fracking.

More recent data appear to indicate that the oil and gas industry continues to use hydraulic fracturing fluids containing diesel fuel. Data from FracFocus, the industry-run voluntary registry of chemicals used in hydraulic fracturing, shows that oil and gas companies reported using products containing three different kinds of diesel fuel in wells in four states in 2013. The number of wells in each state was small and the reported amounts were not large, but FracFocus is not a comprehensive database of all hydraulically fractured wells.

Diesel fuel is toxic and should not be used in fracking without careful environmental review under the Safe Drinking Water Act. We urge you to review EPA's guidance expeditiously so that the agency can finalize strong, clear guidance for permit writers for the remaining cases in which drilling companies opt to use hydraulic fracturing fluids containing diesel fuel.

We thank you for your consideration of this matter.

Sincerely,

Henry A. Waxman
Ranking Member

Diana DeGette
Ranking Member
Subcommittee on Oversight and Investigations

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