Matthew McFeeley, Attorney, Washington, D.C.
Last week, the Environmental Integrity Project (EIP) released a report which found that companies had disclosed using diesel fuel in fracking in 12 states. The use of diesel fuel as a component of fracking fluid is illegal without a permit under the Safe Drinking Water Act, and none of the companies had permits for its use. EIP also found that many of the reported incidents of diesel use had later been scrubbed from submissions which companies made to FracFocus, a website where fracking chemicals are disclosed to the public.
At least 33 different companies reported using diesel fuel in fracking at least 351 wells, according to EIP. The use of diesel is a serious concern. In 2004, an EPA report looked at the chemicals added to fracking fluids used in coalbed methane extraction and found that “Diesel fuel is the additive of greatest concern” because it contains dangerous compounds including benzene, toluene, ethylene, and xylene (referred to as “BTEX” compounds). When Congress exempted hydraulic fracturing from the Safe Drinking Water Act, (the exemption often termed the “Halliburton loophole”) it specifically made an exception for fracking using diesel fuel, partly because of EPA’s finding. While there are many other toxic ingredients of concern used by oil and gas companies in fracking fluid, diesel is the only one subject to federal regulation because of the 2005 language. More recently in 2011, a Department of Energy expert advisory board found that there is “no technical or economic reason to use diesel” in fracking.
Industry has long claimed that it has stopped using diesel fuel in fracking fluid. Back in that 2004 report by EPA, the agency reported that companies responsible for 95% of all frack jobs had agreed to voluntarily eliminate diesel. But, in 2011, a House Committee investigation, which looked at fracking between 2005 and 2009, found that diesel use was widespread – with more than 30 million gallons of fracking fluids containing diesel having been used in 19 states just by the 14 companies which the Committee surveyed. Again, industry representatives claimed that, while diesel may have been used in past years, it was a thing of the past. Now, in response to the latest evidence that diesel has been used since 2011, the same industry representatives are (again) saying that diesel use has been “effectively phased out.”
In February of this year, EPA issued regulatory guidance that clarified what qualified as diesel and when permits are needed. The EIP report found that diesel was deleted from many past reports that companies had submitted to FracFocus after EPA issued this guidance. Some companies claim that the inclusion of diesel fuel in their reports was a mistake. They say they’ve merely corrected those reports to delete diesel fuel from the list of ingredients because it was never used in the first place. That may be the case in some instances. But are companies really making mistakes in the information they submit for hundreds of wells? Either they used diesel without the required permit or they made frequent errors in information submitted to states and the public about what chemicals were used – both are deeply troubling.
What is additionally disturbing is how easy it is for them to amend their FracFocus disclosures at any time, for any reason. FracFocus provides no record that a report has been changed and doesn’t preserve the original report for comparison. Many of the states which require companies to report fracking chemicals to FracFocus allow companies to refuse to disclose chemicals on the basis that they are confidential with no supporting evidence and without even telling the state what those chemicals are. It’s easy to see how a company could decide it was more convenient to delete “diesel” and add “confidential” to their disclosures. FracFocus claims it gives state regulators “the tools” to determine if changes have been made. But the public needs this information as well and FracFocus has acknowledged that it does not provide these tools to the public even though they are available. That is unacceptable.
The EIP report brings to light a laundry list of problems with the current requirements for disclosure of fracking chemicals and the use of FracFocus: there are no controls in place to ensure accuracy, chemicals are being withheld without justification, and changes can be made without any notification. For all these reasons, FracFocus lacks credibility with the public. These are just a couple of the reasons why FracFocus, as it currently stands, should not be used to satisfy government requirements and why the Obama Administration should not use FracFocus as the reporting site for fracking on public lands.
