In an interesting move yesterday, congressional investigators have charged that various oil and gas services companies have violated the Safe Water Drinking Act through the use of diesel fuel in fracking operations from 2005 to 2009. According to a letter sent by the investigators to the EPA, tens of millions of gallons of diesel fuel (used as a solvent and dispersant in the fracking fluid) have been injected into natural gas wells in the United States during that period. The oil and gas companies involved acknowledge using the diesel fuel, but are arguing it wasn't illegal because the EPA has failed to develop rules and procedures governing the use of diesel fuel in fracking liquid. You can find the story in detail at the New York Times here.
Putting aside questions over the wisdom of injecting diesel fuel, which contains several known carcinogens, into the ground, the legal issue here appears to be whether the oil and gas companies needed permits to use diesel fuel in their fracking fluid. In 2005, Congress amended the Safe Water Drinking Act to largely exclude fracking from regulation under the act. But one exception to the carve-out was the use of diesel fuel in fracking liquids. Congressional investigators assert that carve-out makes diesel fuel subject to the EPA's "underground injection control program" which would have required that the companies obtain permits, a position the EPA seems to agree with.
But the oil and gas companies did not obtain permits, and now argue that they could not obtain permits because the EPA never created procedures to issue such permits. Indeed, the U.S. Oil and Gas Association filed suit last August challenging the EPA's website posting on the grounds that it constitutes rule making without the required notice and opportunity for a hearing.
While the outcome of this latest legal challenge to fracking is still uncertain, it is clear that the debate over fracking and its environmental impact is far from over.