Daniel Jakubovitz: History

While hydraulic fracturing has been around in some form since the 1940s, its popularity did not boom until the turn of the 21st century when natural gas companies discovered that they could use the process, coupled with horizontal drilling, to extract valuable natural gas from shale deposits deep beneath the Earth’s surface. The increased usage of the technique, and public concern with its safety, forced the EPA to conduct a study to evaluate the potential risks of the practice on the safety of drinking water. The study, initiated in 1999, was completed in 2004 after extensive internal and external review and public comment (EPA). The results concluded that fracking “poses little to no threat to USDWs [Underground Sources of Drinking Water] and does not justify additional study at this time” (EPA 2004, Chapter 7-5).
Using the momentum from this study, the 2005 Energy Policy Act included an amendment to the Safe Drinking Water Act (SDWA) to exclude hydraulic fracturing processes – except in the case when they use diesel fluid – in the definition of “underground injection.” As it reads in the act, on page 102, section 322 (Energy Policy Act of 2005):

"The term 'underground injection' –
(A) means the subsurface emplacement of fluids by well injection; and
(B) excludes - 
(i) the underground injection of natural gas for purposes of storage; and

(ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities."


The most significant impact of this loophole is that natural gas companies do not have to disclose specifics about the chemicals they use in the fracking fluid, unless they use diesel fluid. The rational was that the chemicals used are a “trade secret” and the oil and gas industries have the right to retain their formula in the name of competition. It is comparable to Coca-Cola not wanting to release its special formula that makes its signature drink so popular.
This exemption colloquially became known as the “Halliburton Loophole” because then-Vice President Dick Cheney, the former Chairman and CEO of the energy giant Halliburton, and his Energy Task Force were rumored to be instrumental in the passage of this part of the act. Additionally, members of President George W. Bush’s cabinet and big oil lobbyists supposedly met countless times behind closed doors before getting the bill passed, which effectively deregulated the practice at the federal level. “That pretty much closed the door. So we absolutely do not look at fracking...under the Safe Drinking Water Act. It’s not done,” says Greg Oberly, an EPA groundwater specialist (Lustgarten, 2008).
All in all, fracking, to some extent, is exempt from “parts of at least 7 of the 15 sweeping federal environmental laws that regulate most other heavy industries,” some of which came about from the Halliburton Loophole, while others have been around since the 1980s to promote the oil and gas industry in general, and not fracking in particular (Urbina, 2011). This includes exemptions from the Clean Air Act, Clean Water Act, and Superfund Act, among others, which have regulations that other industries must abide by. “Coal mine operators that want to inject toxic wastewater into the ground must get permission from the federal authorities. But when natural gas companies want to inject chemical-laced water and sand into the ground during hydrofracking, they do not have to follow the same rules,” writes Ian Urbina for the New York Times (Urbina, 2011).
In 2009, the first attempt to close the Halliburton Loophole and enact some framework of federal regulations was presented in Congress. The Fracking Responsibility and Awareness of Chemicals Act (FRAC Act) failed to pass on its first attempt, and was introduced again in 2011 and in the summer of 2013. Each time it has failed to pass through the committee stage of Congress (Goss, 2013). The act aims to amend the SDWA to repeal the exemption of fracking and allow the EPA more regulatory oversight across the country, replacing the current fragmented system put in place by the states.
Each attempt of the bill has been introduced to both houses of Congress – the Senate and the House of Representatives – to increase the chances of it being passed. Perhaps not surprisingly, for each attempt, a Democratic Member of Congress from either Pennsylvania or Colorado, two states with large fracking presences, have been the sponsors of the bill. For the 2013 bill, which was referred to committee on June 11, Democrat Robert Casey Jr. from Pennsylvania was the Senate sponsor, and Democrat Diana DeGette (who first proposed the original bill in 2009) from Colorado was the sponsor in the House (DeGette, 2013). For the first time, the 2013 bill introduced in the House includes a Republican co-sponsor, signifying a “bipartisan attempt to protect drinking water aquifers from potential contamination from chemicals used in hydraulic fracturing” (Energy Solutions Forum, 2013).

Until Congress passes such a bill, it will be mostly up to the states to regulate and monitor the process of fracking, an increasingly difficult duty as the industry expands and the public becomes more aware of the potential dangers.
The next section explores how the lack of federal regulations affects the main federal environmental regulatory agency, the EPA, and the role it has undertaken in lieu of the ability to regulate the process.
Environmental Protection Agency
The Environmental Protection Agency, established in 1970, is the major federal agency dedicated to protecting the various facets of the environment, but, because of the lack of fracking regulations at the federal level, it does not have much influence over this particular practice. Rather, it is left to a primarily researcher role, conducting studies about the environmental impact of fracking throughout the country in order to provide information for citizens in fracking areas and legislators in Washington.
The EPA’s Role as a Researcher
At the request of Congress, the EPA is currently conducting a study to determine the potential effects of fracking on the nation’s groundwater (Lustgarten in Shankman, 2009). The completion date continues to be pushed back, with the most recent update estimating a completion date of 2016. The EPA will collect water samples from five different case study locations in Colorado, North Dakota, Pennsylvania, and Texas (EPA’s Hydraulic Fracturing Study, 2013). The study will “assess the potential impacts of hydraulic fracturing on drinking water resources, if any, and to identify the driving factors that may affect the severity and frequency of such impacts” (EPA’s Hydraulic Fracturing Study Progress Report, 2012, 19). It will evaluate this through five different steps in the process: water acquisition, chemical mixing, well injection, flowback and produced water, and wastewater treatment and waste disposal (United States Environmental Protection Agency, 2011, ix).
The previously mentioned 2004 study, which essentially had the same goals as the current study, concluded that there was little-to-no risk of fracking contaminating underground sources of water. These results were seen as a clean bill of approval from the EPA concerning fracking. Since then, politicians and industry officials have used these results to justify the fracking boom and supporting legislation, including the exemptions created under the 2005 Energy Policy Act. Using the assurance of the safety of fracking from the EPA, and the sign of approval from Congress, the practice took off. Today, 9 out of 10 natural gas wells in the United States use the fracking technique (Lustgarten, 2008).
The 2004 EPA study, which has become a cornerstone of the fracking industry, is not without controversy, however. Since the study was published, there have been numerous claims of contaminated water in areas with a heavy fracking presence, challenging the EPA’s conclusions. The image that has gathered the most attention from the public and the media is one of residents in a fracking area being
able to light his tap water on fire due to high levels of chemicals (especially methane) in the water supply. The public outcry and evidence contradicting the EPA’s conclusions is what influenced Congress in 2009 to urge the EPA to review the 2004 study and conduct a new study on fracking’s effect on drinking water.

In 2011, Ben Grumbles, the Assistant Administrator of Water at the EPA at the time of the 2004 study, revealed that the findings from the 2004 report had been exaggerated and have been incorrectly used by the oil and gas industry as justification of the practice’s overall safety. Grumbles became the President of the Clean Water America Alliance (currently the U.S. Water Alliance) in December 2010, after leaving his post at the EPA in 2009. At his new position, he disclosed that the EPA “never intended for the report to be interpreted as a perpetual clean bill of health for fracking, or to justify a broad statutory exemption from any future regulation under the Safe Drinking Water Act” (Grumbles, 2011). Jeffrey Jolie, one of the 2004 report’s three main authors also echoes the same statements as Grumbles, saying that it was too narrowly focused and didn’t consider the various ways fracking is used. “It was never intended to be a broad, sweeping study,” he says (Lustgarten, 2008).
Not only was the study misinterpreted, but also the scientific findings themselves may have been compromised. EPA scientist and whistleblower Weston Wilson wrote a letter after the 2004 report came out voicing his concerns with the integrity of the study. He wrote that, “based on available science and literature, EPA’s conclusions are unsupportable” (Wilson, 1). He also reported that five of the seven members on the peer review panel for the study could have potentially had conflicts of interest, including members who currently or formerly worked for the oil and gas industry. Wilson believed that the study was not comprehensive enough, did not disclose all of the information, and he warned that they should be wary of exempting fracking from the SDWA. This letter was published in October 2004, almost a year before the passage of the Energy Policy Act.
Outside Pressures on the EPA
There have been other cases of the EPA making questionable calls when it comes to its studies related to fracking, and questions have been raised about the influence of political pressures and industry lobbying on these decisions. In the past two years, the EPA has closed investigations, reversed viewpoints, and failed to enforce the one fracking regulation that it has control over – preventing diesel gas from being used in the fracking process (Lustgarten, 2013).

In 2012, in the midst of the EPA’s investigation of the effects of fracking on drinking water in Dimock, Pa., the agency abruptly closed the case, declaring that the drinking water was safe despite not releasing any of the data to support this claim. The action to close the study came from the agency’s Washington office, while staff members in the regional office argued for the completion of the assessment (Phillips, 2013). A few months later, an internal PowerPoint presentation was leaked showing that there was evidence to support groundwater contamination as a result of fracking (Sinding, 2013). The conclusion slide (pictured above) shows that the EPA believed that there were legitimate connections between a fracking site and nearby water contamination. The PowerPoint notes that methane is released during the fracking process, and can seep into aquifers causing damage to the water quality.
This is a stark contradiction to what the EPA released to the public. “It became apparent to those of us on the ground that they were playing politics,” said Ray Kemble, a resident of Dimock and former gas industry employee. “EPA officials literally told us officially that our water was safe to drink but then told us off-the- record not to drink it” (Beans, 2013). Similar cases like this occurred with the EPA’s abandoned studies in Pavillion, Wyoming, and Weatherford, Texas (see ‘Additional Web Resources’ section to find more information about these cases). In all three instances, the EPA stepped in because state regulators proved inadequate at fulfilling their duties, an impact of placing the entire regulatory burden on the states. Also in every case, outside pressures from the industry, lobbyists, or Washington influenced the EPA to make adjustments to its studies, sometimes handing responsibility back to the state regulators that had failed in the first place (Beans; 2013).  This recent trend from the EPA questions the agency’s ability to deliver impartial results to citizens and follow through on studies. This concern comes at a crucial time as the EPA is in the midst of its comprehensive national study about fracking. “The agency has maintained publicly that it remains committed to an ongoing national study of hydraulic fracturing, which it says will draw the definitive line on fracking’s risks to water,” (Lustgarten, 2013). The peer review and transparency of this upcoming study becomes of utmost importance, as recent events have made the EPA seem to be less than the objective federal oversight agency it is supposed to be. The public and legislators expect unbiased, factual information from the EPA so they can draw conclusions about fracking and decide what actions to take.