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Fracking and the Halliburton Loophole

by Carla J. Dolce
It started in Alabama. Ruben DeVaughn McMillian and his daughter Cynthia Ann McMillian complained of well water contamination and blamed it on hydraulic fracturing (fracking) used in coal bed methane (CBM) wells near Ruben’s home. Alabama’s oil and gas regulatory agency ignored them as did the EPA, asserting that fracking was not covered under the Safe Drinking Water Act’s (SDWA) underground injection control (UIC) program. After a lengthy court battle initiated by Legal Environmental Assistance Foundation, Inc. (LEAF), the U.S. Court of Appeals for the Eleventh Circuit ruled, in 1997, that the SDWA applies to fracking.
The LEAF court decision prompted the EPA, which had never before regulated fracking, to work with industry leaders to find a way to exempt fracking from the SDWA. This effort finally succeeded under the leadership of Vice President Dick Cheney, former chief executive of Halliburton, the company that pioneered fracking and that, according to a 2004 Los Angeles Times article, makes $1.5 billion per year on the process.
Cheney took command of an EPA study undertaken in response to the growing controversy over fracking and water contamination. The study, “Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs,” EPA 816-R-04-003, is not a scientific field study. It’s a study of existing scientific literature about fracking. The EPA admitted that, “[m]ost of the literature pertaining to fracturing fluids relates to the fluids’ operational efficiency rather than their potential environmental or human health impacts. There is very little documented research on the environmental impacts that result from the injection and migration of these fluids into subsurface formations, soils, and USDWs.” (EPA Study, p. 4-1). The EPA also admitted it “was unable to find complete chemical analyses of any fracturing fluids in the literature.” (EPA Study, p. A1-7).
With virtually no scientific research on the migration of fracking fluids into underground sources of drinking water and not knowing completely the ingredients of any fracking fluids, the EPA made a lot of assumptions and concluded fracking does not pose a contamination threat to drinking water.
In a letter to Senator Allard, Weston Wilson, an environmental engineer employed for thirty years with the EPA, described the 2004 EPA Study as “scientifically unsound.” He noted that fracking fluids can contain toxic substances such as acids, benzene, xylene, toluene, ethyl benzene, formaldehyde, chromates, and polyacrylamides. He also noted that five of the seven members of the peer review panel that oversaw the Study were either current or former employees of the oil and gas industry, including one current Halliburton employee, who had an obvious conflict of interest.
Despite its serious flaws, the 2004 EPA Study was the primary “scientific” support for what has become known as the Halliburton Loophole: the provision in the Energy Policy Act of 2005 that expressly exempts fracking from regulation under the UIC provisions of the SDWA.
Stay tuned next week for efforts to close the Halliburton Loophole!