[Congressional Record Volume 151, Number 67 (Thursday, May 19, 2005)]
[Senate]
[Pages S5533-S5537]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. JEFFORDS (for himself, Mr. Lautenberg, Mrs. Boxer, and Mr. 
        Lieberman):
  S. 1080. A bill to amend the Safe Drinking Water Act to require the 
use of nontoxic products in the case of hydraulic fracturing that 
occurs during oil or natural gas production activities; to the 
Committee on Environment and Public Works.
  Mr. JEFFORDS. Mr. President, I would like to thank Senators 
Lautenberg, Boxer, and Lieberman for working with me to introduce this 
important legislation, the Hydraulic Fracturing Safety Act of 2005.
  Over half of our Nation's fresh drinking water comes from underground 
sources. The process of hydraulic fracturing threatens our drinking 
water supplies. Hydraulic fracturing occurs when fluids are injected at 
high rates of speed into rock beds to fracture them and allow easier 
harvesting of natural oils and gases. It is these injection fluids that 
are of high concern.
  In a recent report, the EPA acknowledged that these fluids, many of 
them toxic and harmful to people, are pumped directly into or near 
underground sources of drinking water. This same report cited earlier 
studies that indicated that only 61 percent of these fluids are 
recovered after the process is complete. This leaves 39 percent of 
these fluids in the ground, risking contamination of our drinking 
water.
  Let me share with you the story of Laura Amos, a resident of Colorado 
who suffers from ill health effects today. In May of 2001, while an oil 
and gas well was being hydraulically fractured near her home, the metal 
top of her drinking well exploded into the air. At the same time, her 
water became bubbly and developed a horrible odor.
  For three months, she was provided alternate drinking water by 
Ballard, later know as Encana, the company that owned the well near her 
home. It took this long until her water appeared normal again. Laura 
and her family drank from this well over the next couple of years. It 
was then that Laura developed a rare adrenal-gland tumor. During this 
time, Laura began actively investigating the chemicals used during the 
hydraulic fracturing of a well near her home. She learned about a 
chemical called 2-BE, which was later linked to adrenal-gland tumors in 
rodents.
  Litigation over the last several years has resulted in findings that 
hydraulic fracturing should be regulated as part of the underground 
injection control program in the Safe Drinking Water Act. Yet, EPA 
indicates in writing that they have no intention of publishing 
regulations to that effect or ensuring that state programs adequately 
regulate hydraulic fracturing.
  I ask unanimous consent that a series of letters to EPA and their 
responses dated October 14, 2004 and December 7, 2004, be inserted in 
the Record.
  In June of 2004, an EPA study on hydraulic fracturing identified 
diesel as a ``constituent of potential concern.'' Prior to this, EPA 
had entered into a Memorandum of Agreement with three of the major 
hydraulic fracturing corporations, whom all voluntarily agreed to ban 
the use of diesel, and if necessary select replacements that will not 
cause hydraulic fracturing fluids to endanger underground sources of 
drinking water. However, all parties acknowledged that only technically 
feasible and cost-effective actions to provide alternatives will be 
sought.
  Hydraulic fracturing needs to be regulated under the Safe Drinking 
Water Act and it has got to start now. It is unconscionable to allow 
the oil and gas industry to pump toxic fluids into the ground.
  My bill, the Hydraulic Fracturing Safety Act of 2005, clarifies once 
and for all that hydraulic fracturing is part of the Underground 
Injection Control Program regulated under the Safe Drinking Water Act.
  This legislation also bans the use of diesel and other toxic 
pollutants for oil and natural gas exploration.
  Last1y, this legislation requires EPA to ensure that States 
adequately regulate hydraulic fracturing activities in all States to 
ensure that companies area adhering to our Nation's laws and conducting 
business in a manner safe for all Americans.
  We need to do the right thing, and take action now to protect our 
Nation's drinking water supply. According to the oil and gas industry, 
90 percent our oil and gas wells will be accessed through hydraulic 
fracturing. Congress and the EPA have to work together to provide a 
consistent and safe supply of drinking water for all Americans.
  I ask unanimous consent that the text of the bill be printed in the 
Record.

[[Page S5534]]

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

         U.S. Senate, Committee on Environment and Public Works,
                                 Washington, DC, October 14, 2004.
     Administrator Michael O. Leavitt,
     Environmental Protection Agency, Ariel Rios Building, 
         Washington, DC.
       Dear Administrator Leavitt: We are writing to you regarding 
     the Environmental Protection Agency's (EPA's) administration 
     of the Safe Drinking Water Act (SDWA) as it pertains to 
     hydraulic fracturing. In recent months, the Agency has taken 
     several key actions on this issue:
       On December 12, 2003, the EPA signed a Memorandum of 
     Understanding with three of the largest service companies 
     representing 95 percent of all hydraulic fracturing performed 
     in the U.S. These three companies, Halliburton Energy 
     Services, Inc., Schlumberger Technology Corporation, and BJ 
     Services Company, voluntarily agreed not to use diesel fuel 
     in their hydraulic fracturing fluids while injecting into 
     underground sources of water for coalbed methane production.
       In June of 2004, EPA completed its study on hydraulic 
     fracturing impacts and released its findings in a report 
     entitled, ``Evaluation of Impacts to Underground Sources of 
     Drinking Water by Hydraulic Fracturing of Coalbed Methane 
     Reservoirs. The report concluded that hydraulic fracturing 
     poses little chance of contaminating underground sources of 
     drinking water and that no further study was needed.
       On July 15, 2004, the EPA published in the Federal Register 
     its final response to the court remand (Legal Environmental 
     Assistance Foundation (LEAF), Inc., v. United States 
     Environmental Protection Agency, 276 F. 3d 1253). The Agency 
     determined that the Alabama underground injection control 
     (UIC) program for hydraulic fracturing, approved by EPA under 
     section 1425 of the SDWA, complies with Class II well 
     requirements.
       We are concerned that the Agency's execution of the SDWA, 
     as it applies to hydraulic fracturing, may not be providing 
     adequate public health protection, consistent with the goals 
     of the statute.
       First, we have questions regarding the information 
     presented in the June 2004 EPA Study and the conclusion to 
     forego national regulations on hydraulic fracturing in favor 
     of an MOU limited to diesel fuel. In the June 2004 EPA Study, 
     EPA identifies the characteristics of the chemicals found in 
     hydraulic fracturing fluids, according to their Material 
     Safety Data Sheets (MSDSs), identifies harmful effects 
     ranging from eye, skin, and respiratory irritation to 
     carcinogenic effects. EPA determines that the presence of 
     these chemicals does not warrant EPA regulation for several 
     reasons. First, EPA states that none of these chemicals, 
     other than BTEX compounds, are already regulated under the 
     SDWA or are on the Agency's draft Contaminant Candidate List 
     (CCL). Second, the Agency states that it does not believe 
     that these chemicals are present in hydraulic fracturing 
     fluids used for coalbed methane, and third, that if they are 
     used, they are not introduced in sufficient concentrations to 
     cause harm. These conclusions raise several questions:
       1. The data presented in the June 2004 EPA study identifies 
     potential harmful effects from the chemicals listed by the 
     Agency in this report. Has the Agency or does the Agency plan 
     to incorporate the results of this study and the fact that 
     these chemicals are present in hydraulic fracturing agents 
     into the CCL development process, and if not, why not?
       2. In the June 2004 EPA study, the Agency concludes that 
     hydraulic fracturing fluids do not contain most of the 
     chemicals identified. This conclusion is based on two items--
     ``conversations with field engineers'' and ``witnessing three 
     separate fracturing events'' (June 2004 EPA Study, p. 4-17.)
       a. How did the Agency select particular field engineers 
     with whom to converse on this subject?
       b. Please provide a transcript of the conversations with 
     field engineers, including the companies or consulting firms 
     with which they were affiliated.
       c. How did the Agency select the three separate fracturing 
     events to witness?
       d. Were those events representative of the different site-
     specific characteristics referenced in the June 2004 study 
     (June 2004 EPA Study, p. 4-19) as determining factors in the 
     types of hydraulic fracturing fluids that will be used?
       e. Which companies were observed?
       f. Was prior notice given of the planned witnessing of 
     these events?
       g. What percentage of the annual number of hydraulic 
     fracturing events that occur in the United States does ``3'' 
     represent?
       h. Finally, please explain why the Material Safety Data 
     Sheets for the fluids identified as potentially being used in 
     hydraulic fracturing list component chemicals that the EPA 
     does not believe are present.
       The Agency concludes in the June 2004 study that even if 
     these chemicals are present, they are not present in 
     sufficient concentrations to cause harm. The Agency bases 
     this conclusion on assumed flowback, dilution and 
     dispersion, adsorption and entrapment, and biodegradation. 
     The June 2004 study repeatedly cites the 1991 Palmer 
     study, ``Comparison between gel-fracture and water-
     fracture stimulations in the Black Warrior basin; 
     Proceedings 1991 Coalbed Methane Symposium,'' which found 
     that only 61 percent of the fluid injected during 
     hydraulic fracturing is recovered. Please explain what 
     data EPA collected and what observations the Agency made 
     in the field that would support the conclusion that the 39 
     percent of fluids remaining in the ground are not present 
     in sufficient concentrations to adversely affect 
     underground sources of drinking water.
       After identifying BTEX compounds as the major constituent 
     of concern (June 2004 EPA study, page 4-15), the Agency 
     entered into the MOU described above as its mechanism to 
     eliminate diesel fuel from hydraulic fracturing fluids.
       3. a. How does the Agency plan to enforce the provisions in 
     the MOU and ensure that its terms are met?
       b. For example, will the Agency conduct independent 
     monitoring of hydraulic fracturing processes in the field to 
     ensure that diesel fuel is not used?
       c. Will the Agency require states to monitor for diesel use 
     as part of their Class II UIC Programs?
       4. a. Should the Agency become aware of an unreported 
     return to the use of diesel fuel in hydraulic fracturing by 
     one of the parties to the MOU, what recourse is available to 
     EPA under the terms of the MOU?
       b. What action does the Agency plan to take should such a 
     situation occur?
        c. Why did EPA choose to use an MOU as opposed to a 
     regulatory approach to achieve the goal of eliminating diesel 
     fuel in hydraulic fracturing?
       d. What revisions were made to the June 2004 EPA study 
     between the December 2003 adoption of the MOU and the 2004 
     release of the study? Which of those changes dealt 
     specifically with the use and effects of diesel fuel in 
     hydraulic fracturing?
       e. The Agency also states that it expects that even if 
     diesel were used, a number of factors would decrease the 
     concentration and availability of BTEX. Please elaborate on 
     the data EPA collected and the observations the Agency made 
     in the field that would support the conclusion that the 39 
     percent of fluids remaining in the ground (1991 Palmer), 
     should they contain BTEX compounds, would not be present in 
     sufficient concentrations to adversely affect underground 
     sources of drinking water.
       We are also concerned that the EPA response to the court 
     remand leaves several unanswered questions. The Court 
     decision found that hydraulic fracturing wells ``fit squarely 
     within the definition of Class II wells.'' (LEAF II, 276 F.3d 
     at 1263), and remanded back to EPA to determine if the 
     Alabama underground injection control program under section 
     1425 complies with Class II well requirements. On July 15, 
     2004, EPA published its finding in the Federal Register that 
     the Alabama program complies with the requirements of the 
     1425 Class II well requirements. (69 FR No. 135, pp 42341.) 
     According to EPA, Alabama is the only state that has a 
     program specifically for hydraulic fracturing approved under 
     section 1425. Based on this analysis, it seems that in order 
     to comply with the Court's finding that hydraulic fracturing 
     is a part of the Class II well definition, the remaining 
     states should be using their existing Class II, EPA-approved 
     programs, under 1422 or 1425, to regulate hydraulic 
     fracturing.
       To date, EPA has approved Underground Injection Control 
     programs in 34 states. Approval dates range from 1981-1996.
       5. Do you plan to conduct a national survey or review to 
     determine whether state Class II programs adequately regulate 
     hydraulic fracturing?
       At the time that these programs were approved, the 
     standards against which state Class II programs were 
     evaluated did not include any minimum requirements for 
     hydraulic fracturing. In its January 19, 2000 notice of EPA's 
     approval of Alabama's 1425 program, the Agency stated, ``When 
     the regulations in 40 CFR parts 144 and 146, including the 
     well classifications, were promulgated, it was not EPA's 
     intent to regulate hydraulic fracturing of coal beds. 
     Accordingly, the well classification systems found in 40 CFR 
     144.6 and 146.5 do not expressly include hydraulic fracturing 
     injection activities. Also, the various permitting, 
     construction and other requirements found in Parts 144 and 
     146 do not specifically address hydraulic fracturing.'' (65 
     FR No. 12, p. 2892.)
       Further, EPA acknowledges that there can be significant 
     differences between hydraulic fracturing and standard 
     activities addressed by state Class II programs. In the 
     January 19, 2000 Federal Register notice, the Agency states: 
     . . . since the injection of fracture fluids through these 
     wells is often a one-time exercise of extremely limited 
     duration (fracture injections generally last no more than two 
     hours) ancillary to the well's principal function of 
     producing methane, it did not seem entirely appropriate to 
     ascribe Class II status to such wells, for all regulatory 
     purposes, merely due to the fact that, prior to commencing 
     production, they had been fractured.'' (65 FR No. 12, p. 
     2892.)
       Although hydraulic fracturing falls under the Class II 
     definition, the Agency has acknowledged that hydraulic 
     fracturing is different than most of the activities that 
     occur under Class II and that there are no national 
     regulations or standards on how to regulate hydraulic 
     fracturing.
       6. In light of the Court decision and the Agency's July 
     2004 response to the Court remand, did the Agency consider 
     establishing national regulations or standards for hydraulic 
     fracturing or minimum requirements for hydraulic fracturing 
     regulations under state Class II programs?

[[Page S5535]]

       7. a. If so, please provide a detailed description of your 
     consideration of establishing these regulations or standards 
     and the rationale for not pursuing them.
       b. Do you plan to establish such regulations or standards 
     in the future?
       c. If not, what standards will be used as the standard of 
     measurement for compliance for hydraulic fracturing under 
     state Class II programs?
       We appreciate your timely response to these questions in 
     reaction to the three recent actions taken by the EPA in 
     relation to hydraulic fracturing--the adoption of the MOU, 
     the release of the final study, and the response to the Court 
     remand. Clean and safe drinking water is one of our nation's 
     greatest assets, and we believe we must do all we can to 
     continue to protect public health. Thank you again for your 
     response.
           Sincerely,
     Jim Jeffords.
     Barbara Boxer.
                                  ____

                                       United States Environmental


                                            Protection Agency,

                                 Washington, DC, December 7, 2004.
     Hon. Jim Jeffords,
     U.S. Senate,
     Washington, DC.
       Dear Senator Jeffords: Thank you for your letter to 
     Administrator Michael Leavitt, dated October 14, 2004, 
     concerning the recent actions that the Environmental 
     Protection Agency (EPA) has taken in implementing the 
     Underground Injection Control (UIC) program with respect to 
     hydraulic fracturing associated with coalbed methane wells.
       The Office of Ground Water and Drinking Water (OGWDW) has 
     prepared specific responses to your technical and policy 
     questions regarding how we conducted the hydraulic fracturing 
     study, the reasons behind our decisions pertaining to the 
     recommendations contained in the study, and any plans or 
     thoughts we may have on the likelihood for future 
     investigation, regulation, or guidance concerning such 
     hydraulic fracturing.
       Since the inception of the UIC program, EPA has implemented 
     the program to ensure that public health is protected by 
     preventing endangerment of underground sources of drinking 
     water (USDWs). The Agency has placed a priority on 
     understanding the risks posed by different types of UIC 
     wells, and worked to ensure that appropriate regulatory 
     actions are taken where specific types of wells may pose a 
     significant risk to drinking water sources. In 1999, in 
     response to concerns raised by Congress and other 
     stakeholders about issues associated with the practice of 
     hydraulic fracturing of coalbed methane wells in the State of 
     Alabama, EPA initiated a study to better understand the 
     impacts of the practice.
       EPA worked to ensure that its study, which was focused on 
     evaluating the potential threat posed to USDWs by fluids used 
     to hydraulically fracture coalbed methane wells, was carried 
     out in a transparent fashion. The Agency provided many 
     opportunities to all stakeholders and the general public to 
     review and comment on the Agency study design and the draft 
     study. The study design was made available for public comment 
     in July 2000, a public meeting was held in August 2000, 
     public notice of the final study design was provided in the 
     Federal Register in September 2000, and the draft study was 
     noticed in the Federal Register in August 2002. The draft 
     report was also distributed to all interested parties and 
     posted on the internet. The Agency received more than 100 
     comments from individuals and other entities.
       EPA's final June 2004 study, Evaluation of Impacts to 
     Underground Sources of Drinking Water by Hydraulic Fracturing 
     of Coalbed Methane Reservoirs, is the most comprehensive 
     review of the subject matter to date. The Agency did not 
     recommend additional study at this time due to the study's 
     conclusion that the potential threat to USDWs posed by 
     hydraulic fracturing of coalbed methane wells is low. 
     However, the Administrator retains the authority under the 
     Safe Drinking Water Act (SDWA) section 1431 to take 
     appropriate action to address any imminent and substantial 
     endangerment to public health caused by hydraulic fracturing.
       During the course of the study, EPA could not identify any 
     confirmed cases where drinking water was contaminated by 
     hydraulic fracturing fluids associated with coalbed methane 
     production. We did uncover a potential threat to USDWs 
     through the use of diesel fuel as a constituent of fracturing 
     fluids where coalbeds are co-located with a USDW. We reduced 
     that risk by signing and implementing the December 2003 
     Memorandum of Agreement (MOA) with three major service 
     companies that carry out the bulk of coalbed methane 
     hydraulic fracturing activities throughout the country. This 
     past summer we confirmed that the companies are carrying out 
     the MOA and view the completion of this agreement as a 
     success story in protecting USDWs.
       In your letter, you asked about the Agency's actions with 
     respect to hydraulic fracturing in light of LEAF v. EPA. In 
     this case, the Eleventh Circuit held that the hydraulic 
     fracturing of coalbed seams in Alabama to produce methane gas 
     was ``underground injection'' for purposes of the SDWA and 
     EPA's UIC program. Following that decision, Alabama 
     developed--and EPA approved--a revised UIC program to protect 
     USDWs during the hydraulic fracturing of coalbeds. The 
     Eleventh Circuit ultimately affirmed EPA's approval of 
     Alabama's revised UIC program.
       In administering the UIC program, the Agency believes it is 
     sound policy to focus its attention on addressing those wells 
     that pose the greatest risk to USDWs. Since 1999, our focus 
     has been on reducing risk from shallow Class V injection 
     wells. EPA estimates that there are more than 500,000 of 
     these wells throughout the country. The wastes injected into 
     them include, in part, storm water runoff, agricultural 
     effluent, and untreated sanitary wastes. The Agency and 
     States are increasing actions to address these wells in order 
     to make the best use of existing resources.
       EPA remains committed to ensuring that drinking water is 
     protected. I look forward to working with Congress to respond 
     to any additional questions, or the concerns that Members of 
     Congress or their constituents may have. If you have further 
     comments or questions, please contact me, or your staff may 
     contact Steven Kinberg of the Office of Congressional and 
     Intergovernmental Relations at (202) 564-5037.
           Sincerely,
                                             Benjamin H. Grumbles,
     Acting Assistant Administrator.
                                  ____



   EPA Response to Specific Questions Regarding Hydraulic Fracturing

       1. The data presented in the June 2004 EPA study identifies 
     potential harmful effects from the chemicals listed by the 
     Agency in this report. Has the Agency or does the Agency plan 
     to incorporate the results of this study and the fact that 
     these chemicals are present in hydraulic fracturing agents 
     into the Contaminant Candidate List (CCL) development 
     process, and if not, why not?
       Although the EPA CBM study found that certain chemical 
     constituents could be found in some hydraulic fracturing 
     fluids, EPA cannot state categorically that they are 
     contained in all such fluids. Each fracturing procedure may 
     be site specific or basin specific and fluids used may depend 
     on the site geology, the stratigraphy, (i.e., type of coal 
     formation), depth of the formation, and the number of coal 
     beds for each fracture operation. The Agency's study did not 
     develop new information related to potential health effects 
     from these chemicals; it merely reported those potential 
     health effects indicated on the Material Safety Data Sheet 
     (MSDS) or other information we obtained from the service 
     companies.
       As noted in the final report, ``Contaminants on the CCL are 
     known or anticipated to occur in public water systems . . .'' 
     The extent to which the contaminants identified in fracturing 
     fluids are part of the next CCL process will depend upon 
     whether they meet this test.
       2. In the June 2004 EPA study, the Agency concludes that 
     hydraulic fracturing fluids do not contain most of the 
     chemicals identified. This conclusion is based on two items--
     ``conversations with field engineers'' and ``witnessing three 
     separate fracturing events''.
       a. How did the agency select particular field engineers 
     with whom to converse on this subject?
       The Agency did not ``select'' any of the engineers; we 
     talked with the engineers who happened to be present at the 
     field operations. In general those were engineers from the 
     coalbed methane companies and the service companies who 
     conducted the actual hydraulic fracturing. When we scheduled 
     to witness the events, we usually conversed with the 
     production company engineer to arrange the logistics and only 
     spoke with the field engineers from the service companies at 
     the well site.
       b. Please provide a transcript of the conversations with 
     field engineers, including the companies or consulting firms 
     with which they were affiliated.
       EPA did not prepare a word-for-word transcript of 
     conversations with engineers.
       c. How did the Agency select the three separate fracturing 
     events to witness?
       The events selected were dependent on the location of the 
     fracturing events, the schedules of both EPA OGWDW staff and 
     EPA Regional staff to witness the event, and the preparation 
     time to procure funding and authorization for travel EPA 
     witnessed the 3 events because the planning and scheduling of 
     these happened to work for all parties. In one event, only 
     EPA HQ staff witnessed the procedure, in another event only 
     EPA Regional staff witnessed it, and in one event, both EPA 
     HQ and Regional staff attended with DOE staff.
       d. Were those events representative of the different site-
     specific characteristics referenced in the June 2004 study 
     (p. 4-19)'' as determining factors in the types of hydraulic 
     fracturing fluids that will be used?
       Budget limitations precluded visits to each of the 11 
     different major coal basins in the U.S. It would have proven 
     to be an expensive and time-consuming process to witness 
     operations in each of these regions. Additionally, even 
     within the same coal basin there are potentially many 
     different types of well configurations, each of which could 
     affect the fracturing plan. EPA believed that witnessing 
     events in 3 very different coal basin settings--Colorado, 
     Kansas, and south western Virginia--would give us an 
     understanding of the practice as conducted in different 
     regions of the country.
       e. Which companies were observed?
       EPA observed a Schlumberger hydraulic fracturing operation 
     in the San Juan basin of Colorado, and Halliburton hydraulic 
     fracturing operations in southwest Virginia and Kansas.
       f. Was prior notice given of the planned witnessing of 
     these events?

[[Page S5536]]

       Yes, because it would have been very difficult to witness 
     the events had they not been planned. To plan the visit, EPA 
     needed to have prior knowledge of the drilling operation, the 
     schedule of the drilling, and the scheduling of the services 
     provided by the hydraulic fracturing service company. Wells, 
     in general, take days to drill (in some cases weeks and 
     months depending on depth of the well) and the fracturing may 
     take place at a later date depending on the availability of 
     the service company and other factors beyond anyone's 
     control.
       g. What percentage of the annual number of hydraulic 
     fracturing events that occur in the United States does ``3'' 
     represent?
       Because of a limited project budget, EPA did not attempt to 
     attend a representative number of hydraulic fracturing 
     events; that would have been beyond the scope of this Phase I 
     investigation. The primary purpose of the site visits was to 
     provide EPA personnel familiarity with the hydraulic 
     fracturing process as applied to coalbed methane wells. The 
     visits served to give EPA staff a working-level, field 
     experience on exactly how well-site operations are conducted, 
     how the process takes place, the logistics in setting up the 
     operation, and the monitoring and verification conducted by 
     the service companies to assure that the fracturing job was 
     accomplished effectively and safely. EPA understands that 
     thousands of fracturing events take place annually, for both 
     conventional oil and gas operations and coalbed methane 
     production, and that three events represent an extremely 
     small fraction of that total.
       h. Finally, please explain why the Material Safety Data 
     Sheets for the fluids identified as potentially being used in 
     hydraulic fracturing list component chemicals that the EPA 
     does not believe are present.
       In Table 4-1 of the final study, EPA identified the range 
     of fluids and fluid additives commonly used in hydraulic 
     fracturing. Some of the fluids and fluid additives may 
     contain constituents of potential concern, however, it is 
     important to note that the information presented in the MSDS 
     is for the pure product. Each of the products listed in Table 
     4-1 is significantly diluted prior to injection. The MSDS 
     information we obtained is not site specific. We reviewed a 
     number of data sheets and we noted that many of them are 
     different, contain different lists of fluids and additives, 
     and thus we concluded in the final report that we cannot say 
     whether one specific chemical, or chemicals, is/are present 
     at every hydraulic fracturing operation.
       3. a. How does the Agency plan to enforce the provisions in 
     the MOU and ensure that its terms are met?
       There is no mechanism to ``enforce'' a voluntary agreement 
     such as the MOA signed by EPA and the three major service 
     companies. The MOA was signed in good faith by senior 
     managers from the three service companies and the Assistant 
     Administrator for Water, and EPA expects it will be carried 
     out. EPA has written all signers of the MOA and asked if they 
     have implemented the agreement and how will they ensure that 
     diesel fuel is not being used in USDWs. All three have 
     written back to EPA, stating that they have removed diesel 
     from their CBM fracturing fluids when a USDW is involved and 
     intend to implement a plan to ensure that such procedures are 
     met. EPA intends to follow up with the service companies on 
     progress in implementing such plans.
       b. For example, will the Agency conduct independent 
     monitoring of hydraulic fracturing processes in the field to 
     ensure that diesel fuel is not used?
       It is unlikely that EPA will conduct such field monitoring. 
     First, in most oil and gas producing states, and coalbed 
     methane producing states, the State Oil and Gas Agency 
     generally has UIC primary enforcement responsibility, and the 
     state inspectors are the primary field presence for such 
     operations. Second, EPA has a very limited field staff and in 
     most cases they are engaged in carrying out responsibilities 
     related to Class I, III and V wells in states in which they 
     directly implement the UIC program. EPA plans to work with 
     several organizations, including the Ground Water Protection 
     Council and the Independent Petroleum Association of America 
     to determine if there are other smaller companies conducting 
     CBM hydraulic fracturing with diesel fuel as a constituent 
     and will explore the possibility of including them in the 
     MOA.
       c. Will the Agency require states to monitor for diesel use 
     as part of their Class II programs?
       Given limited funds for basic national and state UIC 
     program requirements, EPA does not have plans to include the 
     states as parties to the MOA or require them to monitor for 
     diesel fuel in hydraulic fracturing fields. The State of 
     Alabama's EPA-approved UIC program prohibits the hydraulic 
     fracturing of coalbeds in a manner that allows the movement 
     of contaminants into USDWs at levels exceeding the drinking 
     water MCLs or that may adversely affect the health of 
     persons. Current federal regulations do not expressly address 
     or prohibit the use of diesel fuel in fracturing fluids, but 
     the SDWA and UIC regulations allow States to be more 
     stringent than the federal UIC program.
       4. a. Should the Agency become aware of an unreported 
     return to the use of diesel fuel in hydraulic fracturing by 
     one of the parties to the MOD, what recourse is available to 
     EPA under the terms of the MOD?
       There are no terms in the MOA that would provide EPA a 
     mechanism to take any enforcement action should the Agency 
     become aware of an unreported return to the use of diesel 
     fuel in hydraulic fracturing by one of the parties to the 
     MOA. However, EPA would work closely with the companies to 
     determine why such action occurred and discuss possible 
     termination procedures. The agreement defines how either 
     party can terminate the agreement. EPA would make every 
     effort to work with such a company to maintain their 
     participation in the agreement. EPA entered the agreement 
     with an assumption that the companies would honor the 
     commitments they have made about diesel use in hydraulic 
     fracturing fluids.
       b. What action does the Agency plan to take should such a 
     situation occur?
       If such a situation does happen, and EPA learns that diesel 
     fuel used in hydraulic fracturing fluid may enter a USDW and 
     may present an imminent and substantial threat to public 
     health, EPA may issue orders or initiate litigation as 
     necessary pursuant to SDWA section 1431 to protect public 
     health. Otherwise, EPA would take the actions described under 
     the previous question.
       c. Why did EPA choose to use an MOU as opposed to a 
     regulatory approach to achieve the goal of eliminating diesel 
     fuel in hydraulic fracturing?
       While the report's findings did not point to a significant 
     threat from diesel fuel in hydraulic fracturing fluids, the 
     Agency believed that a precautionary approach was 
     appropriate. EPA chose to work collaboratively with the oil 
     service companies because we thought that such an approach 
     would work quicker, and be more effective than other 
     approaches the Agency might employ (i.e. rulemaking, 
     enforcement orders, etc.). We believed that once the service 
     companies became familiar with the issue, they would 
     willingly address EPA's concerns. After several months of 
     meetings and negotiations between representatives of the 
     service companies and high level management in EPA's Office 
     of Water, a Memorandum of Agreement (MOA) was drafted and 
     signed by all parties effective December 24, 2003.
       We believe that the MOA mechanism accomplished the intended 
     goal of removing diesel from hydraulic fracturing fluids in a 
     matter of months, whereas proposing a rule to require removal 
     would have taken at least a year or more.
       d. What revisions were made to the June 2004 EPA study 
     between the December 2003 adoption of the MOD and the 2004 
     release of the study? Which of those changes dealt 
     specifically with the use and effects of diesel fuel in 
     hydraulic fracturing?
       During the specified time-frame, EPA focused on making 
     editorial changes to the report and clarifying information 
     relative to its qualitative discussion of the mitigating 
     effects of dilution, dispersion, adsorption, and 
     biodegradation of residual fluids. With respect to the use 
     and effects of diesel fuel, changes in the study primarily 
     focused on including language in the text of the report which 
     acknowledged that we had successfully negotiated an MOA with 
     the service companies. Specifically. EPA referenced this 
     agreement in the text of the report in the Executive Summary 
     at page ES-2 and on page BS-17 and further discussed the MOA 
     in Chapter 7 in the Conclusions Section of the study.
       e. The Agency also states that it expects that even if 
     diesel were used a number of factors would decrease the 
     concentration and availability of BTEX. Please elaborate on 
     the data EPA collected and the observations the Agency made 
     in the field that would support the conclusion that 39% of 
     fluids remaining in the ground (1991 Palmer), should they 
     contain BTEX compounds would not be present in sufficient 
     concentrations to adversely affect underground sources of 
     drinking water.
       EPA reiterates that the 39% figure from the 1991 Palmer 
     paper is only one instance where it has been documented what 
     quantity of the hydraulic fracturing fluids injected into 
     wells will remain behind. Dr. Palmer, who conducted the 
     original research, estimated that coalbed methane production 
     wells flow back a greater percentage of fracturing fluids 
     injected during the process. Where formations are dewatered 
     or produced for a substantial period of time, greater 
     quantities of formation and fracturing fluids would 
     presumably be removed. We used 39% remaining fluids as a 
     ``worst case'' scenario while doing our qualitative 
     assessment, since it was the only figure we had from research 
     conducted on coalbed methane wells.
       With respect to the BTEX compounds, we no longer believe 
     that they are a concern owing to the MOA negotiated between 
     EPA and the three major service companies.
       5. Do you plan to conduct a national surveyor survey or 
     review to determine whether state Class II programs 
     adequately regulate hydraulic fracturing?
       At this time, EPA has no plans to conduct such a survey or 
     review regarding the adequacy of Class II programs in 
     regulating hydraulic fracturing. In its final study design, 
     EPA indicated that it would not begin to evaluate existing 
     state regulations concerning hydraulic fracturing until it 
     decided to do a Phase III investigation. The Agency, however, 
     reserves the right to change its position on this if news 
     information warrants such a change.
       6. In light of the Court decision and the Agency's July 
     2004 response to the Court remand, did the Agency consider 
     establishing national regulations or standards for hydraulic 
     fracturing or minimum requirements for hydraulic fracturing 
     regulations under Class II programs?

[[Page S5537]]

       When State UIC programs were approved by the Agency--
     primarily during the early 1980s--there was no Eleventh 
     Circuit Court decision indicating that hydraulic fracturing 
     was within the definition of ``underground injection.'' Prior 
     to LEAF v. EPA, EPA had never interpreted the SDWA to cover 
     production practices, such as hydraulic fracturing. After the 
     Court decision in 1997, the Agency began discussions with the 
     State of Alabama on revising their UIC program to include 
     hydraulic fracturing. The net result of that process was the 
     EPA approval of Alabama's revised section 1425 SDWA UIC 
     program to include specific regulations addressing CBM 
     hydraulic fracturing. This approval was signed by the 
     Administrator in December 1999, and published in the Federal 
     Register in January 2000.
       In light of the Phase I HF study and our conclusion that 
     hydraulic fracturing did not present a significant public 
     health risk, we see no reason at this time to pursue a 
     national hydraulic fracturing regulation to protect USDWs or 
     the public health. It is also relevant that the three major 
     service companies have entered into an agreement with EPA to 
     voluntarily remove diesel fuel from their fracturing fluids.
       7. a. If so, please provide a detailed description of your 
     consideration of establishing these regulations or standards 
     and the rationale for not pursuing them. b. Do you plan to 
     establish such regulations or standards in the future? c. If 
     not, what standards will be used as the standard of 
     measurement for compliance for hydraulic fracturing under 
     state Class II programs?
       EPA has not explored in any detailed fashion minimum 
     national or state requirements for hydraulic fracturing of 
     CBM wells, except when it evaluated the revised UIC program 
     in Alabama.
       Considering and developing national regulations for 
     hydraulic fracturing would involve discussions with numerous 
     stakeholders, the states, and the public and it would require 
     an intensive effort to arrive at regulatory language that 
     could be applied nationwide. As EPA's study indicates, 
     coalbeds are located in very distinct geologic settings and 
     the manner in which they are produced for methane gas may be 
     very different in each locale. The proximity of USDWs to the 
     coal formations, and the regional geology and hydrology all 
     play roles in how hydraulic fracturing operations are 
     conducted.
       If EPA receives information of drinking water contamination 
     incidents and follow-up investigations point to a problem, 
     EPA would then re-evaluate its decision to not continue with 
     additional study relating to CBM hydraulic fracturing.
       Should additional states submit revised UIA programs for 
     EPA's review and approval which include hydraulic fracturing 
     regulations, we would evaluate these programs under the 
     effectiveness standards of the SDWA section 1425 as we did 
     for the State of Alabama.

                                S. 1080

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Hydraulic Fracturing Safety 
     Act of 2005''.

     SEC. 2. HYDRAULIC FRACTURING.

       Section 1421(d)(1) of the Safe Drinking Water Act (42 
     U.S.C. 300h(d)(1)) is amended--
       (1) by adding at the end the following: ``The term 
     `underground injection' includes hydraulic fracturing, which 
     means the process of creating a fracture in a reservoir rock, 
     through the injection of fluids and propping agents, for the 
     purpose of reservoir stimulation relating to oil and gas 
     production activities.''; and
       (2) by adding at the end the following:
       ``(3) Hydraulic fracturing.--
       ``(A) In general.--In the case of hydraulic fracturing that 
     occurs during the exploration for, or the production of, oil 
     or natural gas, a producer of oil or natural gas shall not 
     use diesel fuel or any other material that the Administrator 
     has listed as a priority pollutant under the Federal Water 
     Pollution Control Act (33 U.S.C. 1251 et seq.).
       ``(B) Regulations.--The Administrator shall promulgate such 
     regulations as are necessary--
       ``(i) to regulate hydraulic fracturing in accordance with 
     this subsection; and
       ``(ii) to ensure that State programs under section 1422 or 
     1425 regulate hydraulic fracturing in accordance with this 
     subsection.''.
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