Journalism in the Public Interest

Drilling Industry Says Diesel Use Was Legal

After three members of Congress found that drilling companies used more than 32 million gallons of diesel fuel to hydraulically fracture oil and gas wells between 2005 and 2009, the industry is fighting back, not by denying the accusation, but by arguing that the EPA never fully regulated the potentially environmentally dangerous practice in the first place.


An oil drilling rig near Stanley, N.D. The well is being drilled into the Bakken Formation, one of the largest contiguous deposits of oil and natural gas in the United States. (Karen Bleier/AFP/Getty Images)

Nicholas Kusnetz contributed to this report.

After three members of Congress reported this week that drilling companies have been injecting large amounts of diesel fuel underground to hydraulically fracture oil and gas wells, the industry is fighting back -- not by denying the accusation, but by arguing that the EPA never fully regulated the potentially environmentally dangerous practice in the first place.

According to a letter to the EPA from Henry Waxman, D-Calif., Edward Markey, D-Mass., and Diana DeGette, D-Colo., 14 fracking companies injected more than 32 million gallons of diesel fuel into the ground in 19 states between 2005 and 2009. And they did it without asking for or receiving permission from environmental regulators in those states. Diesel fuel contains benzene, a known carcinogen, which has been detected in water supplies near drilling facilities across the country.

At first, the lawmakers' findings look like the prelude to a slam-dunk criminal case.

The 2005 Energy Policy Act states that hydraulic fracturing using diesel is subject to federal regulations that protect drinking water by governing the injection of materials underground. Those injection regulations, contained in the Safe Drinking Water Act, say that companies need a permit before they put anything down a well.

By the lawmakers' reading of these statutes, the drilling companies broke the law.

But the energy companies now say there was no law to break.

"We are not questioning that EPA has the authority to regulate hydraulic fracturing under the Safe Drinking Water Act if diesel fuel is being used. It's the fact that there are no rules to do that," said Lee Fuller, vice president of government relations for the Independent Petroleum Association of America and executive director of industry-funded Energy in Depth.

An e-mail that ProPublica received from Halliburton, which the lawmakers said used 7.2 million gallons of diesel fuel in violation of federal requirements, supported that view. The company said it had not violated any laws, "because there are currently no requirements in the federal environmental regulations that require a company to obtain a federal permit prior to undertaking a hydraulic fracturing project using diesel."

So how can the two sides be so clearly divided in their interpretation of the law? The conflict goes back to a series of agreements and reports that over the years have tried to address the environmental risks inherent to diesel use and hydraulic fracturing but have never succeeded in settling the essential questions.

The effort began in 2004 during the Bush administration, when the EPA last published a study of hydraulic fracturing. That report, which has been criticized by scientists and environmentalists as incomplete, concluded that hydraulic fracturing did not pose a threat to drinking water. But it was clear about one exception: When diesel fuel is used, hydraulic fracturing is not safe and could indeed endanger drinking water.

Based on this, the Bush administration took two steps to limit the use of diesel.

First, it sought a voluntary handshake agreement by the three largest drilling contractors then responsible for some 95 percent of fracturing operations in the United States. The companies -- Halliburton, BJ Services and Schlumberger -- all volunteered to stop using diesel fuel in coal bed methane gas wells, according to a signed memorandum of understanding. At the time, gas wells drilled into coal beds were the focus of the EPA's consideration, because they are often near shallow aquifers.

Second, the Republican-led Congress wrote in an exception to the so-called "Halliburton loophole" in the 2005 Energy Policy Act, which stated that hydraulic fracturing could not be regulated under the Safe Drinking Water Act. According to the language of that law, the use of diesel fuel for fracking would still qualify for regulation.

The drilling industry appeared to accept not only the finding that diesel was dangerous in fracking, but that the federal government was going to regulate it. And it was widely assumed that diesel fuel had largely been eliminated from fracking as a result.

When pressed on the issue last just year, for example, Energy in Depth, which is run by Lee Fuller, the man now arguing that the EPA has no regulatory standing, wrote on its website that diesel use shouldn't be a concern, partly due to "the fact that federal statute explicitly identifies diesel fuel as a substance that, if used, immediately lands that operation under the regulatory authority of EPA."

All sides seemed to be in agreement.

"We knew at the time the [voluntary agreement] was signed that these service companies made up 95 percent of service operations taking place ... and that they discontinued the use of diesel fuel and they continue to report that they do not use diesel fuel," an EPA hydrologist who worked on the 2004 report, Jeffrey Jollie, told ProPublica in 2008.

Ben Grumbles, the EPA's former assistant administrator for water, said last year in an interview with ProPublica that "this was a positive step, and a sincere step forward for us to make sure that... they knew we were watching this and knew that it could be a problem if they used this sort of a process."

When ProPublica questioned industry representatives about diesel in recent years, they responded in a chorus, strongly implying that the EPA agreement had effectively forced the industry to widely adopt best practices.

In July 2009, David Dunlap, then the chief operating officer for the fracturing company BJ Services, which has since been acquired by Baker Hughes, told ProPublica that after the 2004 agreement forced BJ Services to stop using diesel in coal bed methane wells, "it really was a practical matter" to phase it out in all wells. It didn't make sense to have two different systems, he said, so the industry was gradually phasing it out. "It's probably the biggest single move the industry has made to get greener," Dunlap said, referring to the ripple effect of the agreement.

"I can't speak for every fracturing company in the U.S., but we have gone strictly to mineral oil slurries," he added, referring to the mixture of fluids pumped underground. "We don't use diesel in any slurries in the U.S. today. None."

Others were equally adamant. "Yeah, there used to be diesel," David Holcomb, director of research for the Texas-based drilling chemistry company Frac Tech, told ProPublica in 2009. "We never added benzene to a fracturing fluid, we never have and never will. We don't do that anymore."

The lawmakers report that in fact BJ Services injected 11,555,538 gallons of diesel fuel between 2005 and 2009, and that Frac Tech injected 159,371 gallons in that period. Waxman's office did not respond to ProPublica's questions about exactly when those injections had occurred, so it is impossible to know if the injections were made after Dunlap's and Holcomb's statements. Dunlap, who now works at Superior Energy Services, did not respond to a request for comment. Holcomb said the lawmakers didn't understand the information they had collected, and that Frac Tech might have used diesel to clean its lines, but that it had not used it in fracturing fluids.

Now, however, the industry seems to be abandoning its stance that diesel fuel has been phased out for a new one based on the legal readings. That means the diesel revelations are now more likely to land the simmering 15-year debate about the interpretation of hydraulic fracturing regulations -- which began in a mid-90s Alabama lawsuit -- back in court.

A spokesman for Baker Hughes -- the drilling firm that acquired BJ Services -- said that his company hadn't violated any laws, arguing that the EPA agreement not to use diesel applied only to coal bed methane wells and that the EPA never articulated its rules under the Safe Drinking Water Act for other applications.

"The regulations did not expressly address or prohibit the use of diesel fuel as fracturing fluids," he said, adding that the company phased out diesel fuel sometime before 2010. "We believe that retroactively creating a permitting requirement is clearly improper... there was nothing in the federal regulations –--it neither addressed it or prohibited it."

And there is the kernel of the fight. In July the EPA posted an updated page to its website clarifying that it expects drilling companies to file for permits before using diesel-based fracture fluids. The IPAA immediately filed objections in court, arguing that while the Energy Policy Act of 2005 gave the EPA the right to regulate diesel fracturing, it didn't specify when or how it should do it. The agency is only now laying out the rules that would put the law into action, and it is doing it retroactively and arbitrarily, according to Fuller, the IPAA vice president. He said the EPA's website clarification is "not proper rule-making."

"What they should do if they are going to set up a rule structure is they need to go through the normal rulemaking process," he added. "You submit a proposal, go through public comments, then review those comments."

The Obama administration is arguing, according to court filings, that the law always obligated the EPA to enforce the Safe Drinking Water Act and that a website change articulating that policy does not amount to a change in regulations at all.

It is not yet clear whether the government will launch a criminal investigation into the diesel use reported by the three Democrats, or wait for the legal issues to be ironed out by a judge. When asked, an EPA spokeswoman would only say that the agency is still reviewing the information it received from the lawmakers.

It may not be entirely clear exactly what the legalities are, but this much is clear: the companies that injected diesel are not concerned about contaminating water or harming human health.

See what happens when you operate on the “good old boys hand shake agreement—wink, wink.” Someone once famous said it best “mission accomplished.”


Amen Mary Sweeney, Amen.

For those who haven’t seen the documentary “Gasland” now’s the time.

Hmm, the “Halliburton loophole” opened in 2005.  You don’t suppose Dick Cheney had anything to do with that?  Naw, couldn’t be, after all in 2005 we had a Republican administration dedicated to compassionate conservatism, honesty, the rule of law, and don’t forget, free markets.

Why, why, WHY would ANYONE think it was okay to inject a highly flammable toxic chemical UNDERGROUND where there’s a darned good chance it would come in contact with the water people DRINK?!?  Why does it matter that there “was no law to break”? 

Apparently common sense and decency no longer exist unless there’s a law that specifically states common sense MUST be used when making business decisions.  It shouldn’t take a government mandate for a company to honor the health and well being of the citizens of this planet, and our right to a clean environment.

Sadly, I envision scenes like the following taking place every day:  Inside a posh conference room at a large corporation (which will remain nameless), a group of top executives and other high level ‘decision makers’ sit around an intricately carved Mahogany table.  After a few moments, a rather large, cigar smoking, smooth talking executive begins to speak.  “Gentlemen, the little people matter not. The sooner we get to the cash, regardless of the human and environmental toll, the better.” 

Why am I having flashbacks to the movie Avatar? 

Shame, shame shame on these greedy corporations and the politicians who knowingly turn a blind eye to their behavior so that they TOO can make big mounds of cash, in the form of ‘campaign donations’.

The changes of injected wastewater coming in contact with groundwater is miniscule. IN fact it has never happened in America, despite 1.1 million wells being fracked. Do you not think state and federal regulators, and the scientists and geologists who have been fracking wells for 60 years, have thought of this? Just because fracking is new and misunderstood by the public does not mean it is new and misunderstood by those who work in the industry, and those who regulate the industry. 
If you don’t like fracking then please dissacociate yourself with eveything in your life that is produced as a result of fossil fuels: your car, your home, your clothes, your tupperwear, your skin lotion, your grocery stores, your lawnmowers and snowblowers, and the airplanes, buses, bicyles and trains you use to take you places.


By “wastewater” do you mean carcinogens, like benzene and other equally toxic chemicals unfit for human consumption and reproduction continuum? (Meaning will my children have two eyes, two arms and two legs, etc.)  Does YOUR family and children live down stream from suspected or fracked aquifers?

Can YOU prove your claims with absolute certainty?  Your name implies you’re a fracking industry shill!

It’s time for We The People to COMPEL Congress to call an Article V Amendments Convention so THE PEOPLE can write constitutional law beyond the tampering of industry lobbyists, overpaid CEOs, their fancy lawyers, and the legislative, executive and judicial branches of the government.

Google Article V Convention:  About 7,870,000 results in 0.14 seconds!!!  It’s About Time.

If anyone has drinking water contaminate with
diesel fuel or other chemiales used in fractking
please be advised that there is an inexpensive, insitu technology to clean it up.  Our email address is <

Kevin A. McDonald

Feb. 4, 2011, 1:02 a.m.

This is unfettered greed in action. No wonder diesel prices have been consitently higher. Polluting the earth with fuel, to extract fuel.

I was wondering why the number of API commercials on the air here in frack-happy western Pennsylvania had soared over the last couple of weeks.

It’s a telltale - those commercials increase, and I’m safe in concluding that the hydrocarbons industry is aware that another one of their murder-for-money schemes is about to be exposed to the public.

(*Murder-for-money is what it is…you knowingly inject poisons into the ground and previously uncontaminated groundwater shows traces of those contaminants [whether in whole, in part, or transformed into some other molecular configuration as a breakdown product], then you’ve got what would be prosecuted as attempted murder if you were to dump the same chemicals into, say, a former President of Halliburton’s glass of French bubbly.)

@ibsteve2u: Exactly. 

When diesel fuel spills on the ground or leaks from a tank at a gas station and gets into the groundwater or sewer, really bad things happen.

But these big energy conglomerates say its not dangerous for fracking rigs to inject a toxic mix of Only-the-Gods-of-Fracking-Know-What into the rocks under the ground, because, you see, there have been “geological surveys” conducted, and they show that there is no way the fluid can POSSIBLY get into the groundwater. 

Which begs the question:  How easy is it to see what is REALLY going on under all those yards of dirt and rock once they start injecting?  No one has control over how those rocks will fissure under the pressure from fracking fluid.  And unless they have workers with X-ray vision…well, I think you get my point.

We need federal regulations to set the uniform requirements upon this industry.  The regulations must be backed with staff to enforce, and penalties to make the companies suffer real consequences, including up to revoking their licenses to operate, plus serious, if not crippling fines, plus imprisonment where appropriate. 

Certain corporate behavior needs to be criminalized well beyond “white collar” status.

It is absolutely clear that this type of approach is the only path to take, and that the industry has no word to take at face value.  Lee Fuller is a smarmy propagandist who has no credibility.  He, and his organization, are the lying attack dogs the industry sends to bash anyone and everything that undermines its delusion of reality, whether it be Gasland the movie, or the Congressional Committee headed by Waxman, Markey and DeGette. 

They desperately fear federal oversight, and a strong EPA that is actually doing its job.  At the same time, they deny they have ever received exemptions from federal law (Halliburton loopholes), and that federal rules would be redundant to those of the States. 

These people (corporations included, unfortunately) are pathological liars.  They literally must be nailed down.

Now we know why diesel is more expensive than gasoline

It is this kind of pollution caused by crafty corporations that justifies NATIONAL HEALTH CARE. People who get sick from this fracturing with oil and other poisons PURPOSELY spread out over our environment should have free medical care paid for by the polluting SOBs. But what did we get, a health care law that may be declared unconstitutional. And then who did I see on TV attending yesterday’s National Prayer Breakfast (sponsored by The Family and C Streeters, those fundamentalist who practice Jesus plus zero)  but our President Obama. I supported him in 2008, but no more. He has caved in to the special interest. BAH!

Andy Peterson

Feb. 5, 2011, 10:46 a.m.

Please keep in mind that the formations that are being fracked already have oil and natural gas in them, and they are not and never will be fresh drinking water source zones. The oil and natural gas in these formations contains naturallly occurring benzene and other contaminants, which were there before the zones were ever treated.

The oil companies are not injecting diesel and other chemicals into fresh water drinking zones. The fresh water zones are usually thousands of feet above the zones that the oil companies are treating, and they are isolated by multiple stings of steel casing and cement barriers. So the zones that are getting treated are already naturally dirty, and never could be a source of drinking water.

The incidence of damage to any fresh water sources is so low that in my opinion, the risks are worth it so that we can drive cars and heat homes. Without frac jobs, the flow of oil and natural gas in this country will cease, and in my opinion the risk are manageable.

Andy Peterson - the problem the American people have is the same problem exposed by this story. 

I’m not trying to engage in an ad hominem attack when I observe that all you have to say is that you’re working for or representing a drilling company, Big Oil, the natural gas industry, the drilling supply industry, or an industry lobbying and advertising group such as API and the American people instinctively - and as this story makes clear justifiably - assume that they’re being lied to.

People who have nothing to conceal don’t artfully guide the public and the government into assumptions that are favorable to the industry and then turn right around and claim that hey, their behavior wasn’t flat-out illegal so all risks and consequences of their behavior are on the unwitting public when they’re found out.

An industry that hides its behavior does so for the same reason a criminal does:  They know that what they’re doing will not be viewed as being in the best interests of the American people.

And - at the risks of repeating myself - jobs for a handful of Americans are not viewed as offsetting the possibility of poisoning hundreds of thousands or even millions of Americans.  It never has been and the frackers know it, which is why the frackers concealed the fact that they were injecting diesel fuel directly into underground rock formations with no way to guarantee the stability or direction of travel of the resulting accumulations of known carcinogens and biological poisons..

(P.S.  The oil and gas industry really needs to stop trying the public’s patience with the claim that those subterranean formations where they inject chemicals are somehow permanently isolated from underground drinking water supplies.

It…won’t hold water…not in modern American, not when anybody can download a copy of the Marcellus shale formation

and download and overlay maps of seismic activity in the area

and remember that gee, earthquakes don’t occur and so restrict what they move and jumble around to our atmosphere - they’re rockin’ and sloshin’ the geological formations under our feet at depths from a thousand to tens of thousands of feet down.

(To replace a comment wherein I forgot the rules and embedded URLs:)

I don’t know why the industry keeps trying to tell the public there is no danger to injecting diesel et al into underground rock formations because - they imply - those formations are geologically isolated from the formations that are being tapped for drinking water.

A person could get the impression that:

a)  The industry thinks the American people don’t understand that earthquakes can rearrange rock formations any way they want to any time they want to

b)  The industry thinks the public is too..witless…to do a web search for a map of, say, the Marcellus shale formation and then do a web search for maps of recorded earthquakes in the same areas - perhaps from Pennsylvania’s DCNR or the federal government USGS - and overlay them

c)  The industry thinks the public is too dull to grasp that gases and fluids migrate…so dull, in fact, that they’ve forgotten why there is heat and smoke coming from the ground under what used to be Centralia, Pennsylvania.

The industry has a big problem:  When they continually try to B.S. the public, they only grow their reputation for untrustworthiness - and they’re the ones who apparently don’t have the wits to grasp the consequences.

(loolllll….all I probably succeeded in doing was getting API to consider funding efforts to “shape traffic” on the Internet - or turn it off completely.)

Our community has successfully fought off the forseeable arrival of coal bed methane companies who wanted to frack here in northern BC,with water.  I cannot imagine how any American citizen would allow the practice near their home with diesel.

We are foreigners (CDNs), yet we have had the privilege of travelling your country from coast to coast from Mexico to Alaska.  You have such an unbelievably beautiful country. However what you are doing in the American midwest and in Alaska in the pursuit of cheap energy ....I dont understand it.  For you to think you are being offered the choice of freezing to death in your sleep or consenting to such destructive practices makes me question my regard for American common sense.

@slockwood:  I think you have to remember the great change that has occurred in America over the last 30 years…

Namely, too many of our “news” sources have discarded their obligation to restrict themselves to the facts and truth.  As a consequence, the American people are inundated with lies intended to turn them against their own best interests around the clock each and every day…yet far too many of us don’t understand - don’t want to accept - that so much of television and the other forms of media not only could be but have been hijacked and transformed into the vehicles of propaganda.

I.e., growing up with Edward R. Murrow and Walter Cronkite left too much of America ill-prepared to accept that our press and media - long associated with the creation of this nation due to our Founding Father’s understanding that a free press is vital to democracy - can betray us…too many Americans just cannot differentiate between the historical honor and integrity of the press and the modern reality of the entities which - while still claiming to be “the news” and demanding the respect and privileges we have traditionally endowed “the press” with due to their service to democracy - appear to me to have been purposefully transformed into weapons meant to enable the wealthy few to attain their goals regardless of the damage their greed inflicts upon our people and our nation.

Once we “boomers” and the other older generations that place an undue faith in traditional forms of “the news” are gone, I suspect America will again display good, old-fashioned “common sense”.

Assuming isn’t too late…which, I’m sorry to say, is looking more and more like a bad wager every day.

WHERE did the diesel come from in the first place?

They bring the diesel in on tanker trucks…and since they already and always use diesel to power construction and drilling equipment and they’re always bringing in lots of tanker trucks of water, an increase in the ratio of diesel-to-water tankers - assuming the former are correctly marked with the ICC warning flags to begin with - goes unnoticed by the residents (the people who use the area’s water and will thus be frist to “benefit” by the frackers’ addition of “supplemental” diesel to what they drink) amidst the general turmoil.

I’m sitting here watching a “Daily Show” rerun with T. Boone Pickens as the guest.  The guy is saying that he has never heard - after having fracked multiple thousands of wells himself - of an aquifer being contaminated by the process.

Now the guy is likable, and I dearly want to believe him.  I dearly want to believe that there is one - just ONE - person in the oil and gas industry who is both honest and keeps the well-being of the American people and the future of my country near to his heart.

But how can I?  What evidence can I point to that shows anybody in the oil and gas industry ever putting the American people or my nation before their personal greed?  Where is the stack of facts that I can lean upon - that will have my back - should I say “Trust the oil and gas industry!”???

I am quite sure that America’s prisons are full of people who would want me on their parole boards should I display a tendency to believe when that belief must fly in the face of all known facts.

And I sue that comparison knowing full well that my allowing that one unrepentant, unreformed murderer out of prison would not - could not - have nearly the massive negative consequences that have ever accompanied trusting the oil and gas industry.

I’m afraid the Cretins have spewed the lie so long, they believe it themselves. There is NONE so blind as he who WILL NOT see.
  They wouldn’t recognize the truth if it jumped up and bit them in the mouth.
  But if it’s any consolation, they will die in their ignorance, right alongside the ones they poison.

Let the owners of the gas companies be the first in line to drink the water they contaminated with diesel fuel and benzene, etc.  It’s not the first time they were invited to take a drink of the water they contaminated, and they always refuse.  If they contaminate the water, then they should be forced to drink it, after all, they don’t care that they have poisoned peoples water.

This article is part of an ongoing investigation:

Fracking: Gas Drilling’s Environmental Threat

The promise of abundant natural gas is colliding with fears about water contamination.

The Story So Far

The country’s push to find clean domestic energy has zeroed in on natural gas, but cases of water contamination have raised serious questions about the primary drilling method being used. Vast deposits of natural gas, large enough to supply the country for decades, have brought a drilling boom stretching across 31 states. The drilling technique being used, called hydraulic fracturing, shoots water, sand and toxic chemicals into the ground to break up rock and release the gas.

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