Now that fracking is taking off government regulators and environmental interests find they are powerless to protect public health and the environment. This reflects the overwhelming power of Dick Cheney to ensure that his former company (Halliburton) could begin fracking anywhere they wanted without having to comply with pesky federal laws like The Clean Water Act and the Safe Drinking Water Act. This is part of a clear pattern where Halliburton received no-bid contracts to exploit Iran’s oil and attempt to rebuild New Orleans after their technology caused the BP oil disaster in the Gulf of Mexico.
In this article you will learn the full details of what has come to be known as “The Halliburton Loophole.” Learn how Vice President Cheney effectively squashed the ability of the Environmental Protection Agency (EPA) to regulate fracking and its waste products. Read the accounts of senior level EPA officials who became whistle-blowers when they realized how their agency had been captured by the greed of the vice-president who continued to work for Halliburton all during his time in office.
Click below to read all about how the fracking industry has been allowed to suck oil freely without government of public oversight.
Pressure Limits Efforts to Police Drilling for Gas By IAN URBINA March 3, 2011
When Congress considered whether to regulate more closely the handling of wastes from oil and gas drilling in the 1980s, it turned to the Environmental Protection Agency to research the matter. E.P.A. researchers concluded that some of the drillers’ waste was hazardous and should be tightly controlled. But that is not what Congress heard. Some of the recommendations concerning oil and gas waste were eliminated in the final report handed to lawmakers in 1987. “It was like the science didn’t matter,” Carla Greathouse, the author of the study, said in a recent interview. “The industry was going to get what it wanted, and we were not supposed to stand in the way.”
E.P.A. officials told her, she said, that her findings were altered because of pressure from the Office of Legal Counsel of the White House under Ronald Reagan. A spokesman for the E.P.A. declined to comment. Ms. Greathouse’s experience was not an isolated case. More than a quarter-century of efforts by some lawmakers and regulators to force the federal government to police the industry better have been thwarted, as E.P.A. studies have been repeatedly narrowed in scope and important findings have been removed. For example, the agency had planned to call last year for a moratorium on the gas-drilling technique known as hydrofracking in the New York City watershed, according to internal documents, but the advice was removed from the publicly released letter sent to New York.
Now some scientists and lawyers at the E.P.A. are wondering whether history is about to repeat itself as the agency undertakes a broad new study of natural gas drilling and its potential risks, with preliminary results scheduled to be delivered next year. The documents show that the agency dropped some plans to model radioactivity in drilling wastewater being discharged by treatment plants into rivers upstream from drinking water intake plants. And in Congress, members from drilling states like Oklahoma have pressured the agency to keep the focus of the new study narrow. They have been helped in their lobbying efforts by a compelling storyline: Cutting red tape helps these energy companies reduce the nation’s dependence on other countries for fuel. Natural gas is also a cleaner-burning alternative to coal and plentiful within United States borders, so it can create jobs.
But interviews with E.P.A. scientists, and confidential documents obtained by The New York Times, show long and deep divisions within the agency over whether and how to increase regulation of oil and gas drillers, and over the enforcement of existing laws that some agency officials say are clearly being violated. Agency lawyers are heatedly debating whether to intervene in Pennsylvania, where drilling for gas has increased sharply, to stop what some of those lawyers say is a clear violation of federal pollution laws: drilling waste discharged into rivers and streams with minimal treatment. The outcome of that dispute has the potential to halt the breakneck growth of drilling in Pennsylvania. The E.P.A. has taken strong stands in some places, like Texas, where in December it overrode state regulators and intervened after a local driller was suspected of water contamination. Elsewhere, the agency has pulled its punches, as in New York.
Asked why the letter about hydrofracking in the New York City watershed had been revised, an agency scientist involved in writing it offered a one-word explanation: “politics.” Natural gas drilling companies have major exemptions from parts of at least 7 of the 15 sweeping federal environmental laws that regulate most other heavy industries and were written to protect air and drinking water from radioactive and hazardous chemicals. 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. The air pollution from a sprawling steel plant with multiple buildings is added together when regulators decide whether certain strict rules will apply. At a natural gas site, the toxic fumes from various parts of it — a compressor station and a storage tank, for example — are counted separately rather than cumulatively, so many overall gas well operations are subject to looser caps on their emissions.
An Earlier Reversal
The E.P.A. also studied hydrofracking in 2004, when Congress considered whether the process should be fully regulated by the Safe Drinking Water Act. An early draft of the study discussed potentially dangerous levels of contamination in hydrofracking fluids and mentioned “possible evidence” of contamination of an aquifer. The report’s final version excluded these points, concluding instead that hydrofracking “poses little or no threat to drinking water.” Shortly after the study was released, an E.P.A. whistle-blower said the agency had been strongly influenced by industry and political pressure. Agency leaders at the time stood by the study’s findings. “It was shameful,” Weston Wilson, the E.P.A. whistle-blower, said in a recent interview about the study. He explained that five of the seven members of that study’s peer review panel were current or former employees of the oil and gas industry. “The study ended up being the basis for this industry getting yet another exemption from federal law when it should have resulted in greater regulation of this industry,” Mr. Wilson added. Some E.P.A. scientists say this pattern may be playing out again in the national study of hydrofracking that Congress will consider as it decides whether drillers will have to operate under stricter rules.
Internal documents from early meetings, obtained through public-records requests filed by The Times and provided by E.P.A. officials who are frustrated with how research is being handled, show agency field scientists demanding that certain topics be included in the study. And earlier versions of the research plan indicate that many of those topics were to be included. For example, the study was to consider the dangers of toxic fumes released during drilling, the impact of drilling waste on the food chain and the risks of this radioactive waste to workers. But many of these concerns, cited by field scientists in earlier documents as high priorities, were cut from the current study plan, according to a version of it made public on Feb. 8.
Earlier planning documents also called for a study of the risks of contaminated runoff from landfills where drilling waste is disposed and included detailed plans to model whether rivers can sufficiently dilute hazardous gas-well wastewater discharged from treatment plants. These topics were cut from the current study plan, even though E.P.A. officials have acknowledged that sewage treatment plants are not able to treat drilling waste fully before it is discharged into rivers, sometimes just a few miles upstream from drinking water intake plants. While the current study plan clearly indicates that the agency plans to research various types of radioactivity concerns related to natural gas drilling, this river modeling, which E.P.A. scientists say is important, has been removed.
In interviews, several agency scientists and consultants, who declined to be named for fear of reprisals, said the study was narrowed because of pressure from industry and its allies in Congress, and budget and time constraints. Brendan Gilfillan, an agency spokesman, said that the plan remained broad and that the agency had taken additional steps to investigate the impacts of drilling, including recently issuing a subpoena against the energy services company Halliburton to force the company to provide fuller disclosure about its drilling operations. Federal scientists also say the national study is being used to squelch other research by the E.P.A. on hydrofracking.
At a January meeting in Washington, Jeanne Briskin of the E.P.A.’s Office of Research and Development informed regional directors that the national study would be the only forum for research on hydrofracking. This meant, these scientists said, that some projects under way in regional offices would probably have to be halted. “That may impact our plans to pursue some of the other research,” wrote Ron Landy, regional science liaison of E.P.A. Region 3, in an e-mail to another agency official in January in which he complained about the new directive. He suggested that until the directive was lifted, his staff should keep quiet about its continuing hydrofracking research and instead emphasize its work on coal to superiors. “I think we can go ahead, but keep the focus on mining, and prepare for moving these efforts into hydraulic fracking once these limitations are lifted,” Mr. Landy wrote.
Though the E.P.A. has emphasized the importance of openness and public involvement in the study, internal e-mails show agency officials expressing concern about the reaction if the public were to learn of the narrowing scope of the study. In those e-mails, these officials strongly discourage putting anything in writing about the study unless it is vetted by managers. One e-mail, forwarded to The Times by David Campbell, director of the E.P.A. Region 3 Office of Environmental Innovation, described the instructions he had been given by the agency’s regional administrator, Shawn M. Garvin. “He could not have been more adamant or clear about the development of any documentation related to our efforts on Marcellus,” Mr. Campbell wrote last December, referring to the Marcellus Shale, a gas-rich rock formation that stretches under Pennsylvania and other states. “His concern is that if we spell out what we think we want to do (our grandest visions) that the public may have access to those documents and challenge us to enact those plans.”
Mr. Gilfillan, the E.P.A. spokesman, said the e-mail exchange — which was shown to him for comment — did not reflect the agency’s efforts to understand the impacts of natural gas extraction better. But in interviews, agency scientists and lawyers said Mr. Garvin’s office had been most resistant to stepping up its regulatory role in Pennsylvania. These scientists and lawyers said that high-level agency officials in Washington had made it clear in meetings that some of the resistance to more rigorous enforcement was also coming from members of the environmental and energy staff at the White House. Clark Stevens, a White House spokesman, rejected these assertions and argued that the Obama administration had taken “unprecedented steps” to study the impact of natural gas drilling.
Support in Washington
In its efforts to oppose new federal regulations, the oil and gas industry has found strong allies in Congress to lobby the agency about its current research. “I am confident this study, if truly focused on hydraulic fracturing,” wrote Senator Tom Coburn, Republican of Oklahoma, last April to the E.P.A. administrator, Lisa P. Jackson, “will prove the process indisputably safe and acceptable.” In September, Senator James M. Inhofe, also a Republican from Oklahoma, wrote to agency officials to offer his guidance about who should be allowed to review the research. “We caution against potential panelists who have been longtime critics of hydraulic fracturing,” he wrote in a letter. Over their careers, the two lawmakers from Oklahoma, a major drilling state, have been among the Senate’s top 20 recipients of oil and gas campaign contributions, according to federal data. The oil and gas industry has not hesitated to convey its views to the agency about the study now under way, frequently quoting the language used in 2010 by a Congressional committee, which urged the E.P.A. “to carry out a study on the relationship between hydraulic fracturing and drinking water.”
In one comment submitted to the agency, Chad Bradley, a lobbyist for Chesapeake Energy, criticized the E.P.A., saying it was going beyond its “mandate” from Congress, adding new topics resulting in “mission creep.” Virtually all of the companies echoed his comments. But Representative Maurice D. Hinchey, Democrat from New York, who wrote the original language, said his words were being taken out of context. He added that the E.P.A. had full jurisdiction to study other risks from hydrofracking, like air quality or toxic waste being discharged into rivers. “The language I authored does not at all limit the scope of the E.P.A.’s study, rather it sets forth the minimum that Congress expects,” he added. “Any assertion otherwise by industry is a blatant attempt to misrepresent Congress’s intentions.” The argument over the scope of the study will affect whether certain exemptions for the oil and gas industry will remain intact.
These exemptions have led to conflicting impulses in Washington for a long time. For example, Carol M. Browner, the E.P.A. administrator in the Clinton administration, has argued both for and against these sorts of exemptions. “Whatever comes out of the ground, you don’t have to test it, you don’t have to understand what’s in it, you can dump it anywhere,” she told “60 Minutes” in 1997, discussing exemptions for toxic wastes from the oil industry, which also apply to natural gas drillers. “That’s how broad the loophole is,” Ms. Browner added at the time (her office declined to answer questions about those comments). “There’s nothing like it in any environmental statute. Congress should revisit this loophole.”
Exemptions Stymie EPA
The natural gas drilling boom is forcing the E.P.A. to wrestle with questions of jurisdiction over individual states and how to police the industry despite its extensive exemptions from federal law. In Wyoming, for example, the agency is investigating water-well contamination in an area of heavy drilling, even though some E.P.A. officials said in interviews that because of industry exemptions, the agency might not have jurisdiction for such an investigation. In Texas, after an aquifer was contaminated, E.P.A. officials in December ordered a drilling company to provide clean drinking water to residents despite strong resistance from state regulators who said the federal action was premature and unfounded.
The stakes are particularly high in Pennsylvania, where gas drilling is expanding quickly, and where E.P.A. officials say drilling waste is being discharged with inadequate treatment into rivers that provide drinking water to more than 16 million people. Drillers throughout the country are watching Pennsylvania to see whether the federal agency will overrule the state’s decisions on how to dispose of drilling waste. The central question on this issue: Should drillers in Pennsylvania be allowed to dump “mystery liquids” into public waterways? Under federal law, certain basic rules govern sewage treatment plants. At their core, these rules say two things: operators have to know what is in the waste they receive, and they have to treat this waste to make it safe before discharging it into waterways.
But in Pennsylvania, these rules are being broken, according to some E.P.A. lawyers. “Treatment plants are not allowed under federal law to process mystery liquids, regardless of what the state tells them,” explained one E.P.A. lawyer in an internal draft memo obtained by The Times. “Mystery liquids is exactly what this drilling waste is, since its ingredient toxins aren’t known.” This fact has led to a heated fight within the E.P.A. Some agency lawyers say the state is not policing treatment plants properly in some instances and is acting beyond its authority in others — allegations that state officials reject. These lawyers are calling for the E.P.A. to revoke, at least temporarily, Pennsylvania’s right to give treatment plants operating permits to handle drilling waste. Last year, state regulators created their own pretreatment standards for plants handling this waste, even though the regulators lacked federal permission to do so, agency lawyers say.
E.P.A. scientists working on the agency’s national hydrofracking study have also emphasized that sewage treatment plants are not, technically speaking, treating the waste. For example, when one agency scientist wrote in a draft plan for the national study that wastewater could be “discharged to surface water after treatment to remove contaminants,” another scientist corrected the statement in the margin. Using the federal definition of treatment, the second scientist wrote, “we really don’t fully treat the waste.” Nevertheless, the E.P.A. Region 3 office, which oversees Pennsylvania, has staunchly resisted calls from agency lawyers to order the state to stop issuing permits to treatment plants handling drilling waste. “The bottom line is that under the Clean Water Act, dilution is not the solution to pollution,” the enforcement lawyer wrote. “Sewage treatment plants are legally obligated to treat, not dilute, the waste. These plants are breaking the law,” the lawyer said. “Everyone is looking the other way.”
Fact Sheet: Hydraulic fracturing should be regulated under the Safe Drinking Water Act By: Earthjustice: May 12, 2009
Hydraulic fracturing involves the injection of fluids, often containing toxic chemicals, into oil or gas wells at very high pressure. These pressurized fluids are used to crack open the underground formation to allow oil or gas to flow more freely and increase production. Studies show that, while some of the injected fluids are returned to the surface, some remain underground. In some cases, they are injected directly into underground sources of drinking water (USDWs). Our nation’s drinking water sources are extremely precious resources; according to the U.S. Government Accountability Office, approximately half of the total U.S. population and 95% of our rural population obtain drinking water from underground water sources.
Fracturing is highly variable and unpredictable, and can lead to unintended consequences, such as contamination of drinking water. This practice should be regulated under the Safe Drinking Water Act (SDWA) like other forms of underground injection. Yet, in 2005, Congress exempted hydraulic fracturing from the SDWA to the benefit of Halliburton and a handful of other hydraulic fracturing companies. It’s time to reverse this hand-out to special interests.
Closing the Halliburton Loophole would not shut down drilling or mandate a burdensome new permit process.
Legislation to close the Halliburton loophole would not require new regulations, environmental impact statements, or additional individual permits for each well. U.S. Environmental Protection Agency (EPA) regulations already exist for underground injection activities, and current EPA rules allow a state to incorporate hydraulic fracturing into the existing permitting process for each well. In Colorado, operators already have to provide information on whether fracturing will be used. Colorado’s new Comprehensive Drilling Plan, an optional approach, does not require individual permits and instead allows planning for an entire geographic area in advance. Alabama currently has a permit process for hydraulic fracturing that has not reduced drilling activity.
Closing the Halliburton Loophole would not require disclosure of proprietary trade secrets or confidential business information.
Legislation to close the Halliburton loophole would not require disclosure of specific proprietary formulas. Even if legislation required disclosure of the chemical constituents injected underground, a list of ingredients is not proprietary — one need only look at the ingredient list on a can of Coca-Cola to know that is the case. Pennsylvania already requires operators to provide a chemical analysis of hydraulic fracturing fluids used in each operation, a requirement with which companies currently comply.
Closing the Halliburton Loophole would provide a minimum federal standard to prohibit drinking water contamination and shine a light on hydraulic fracturing.
Oil and gas production now occurs in 34 states. Every state has different standards, and their strength and effectiveness vary widely. A recent report from the Hastings College of the Law concluded that &.many of the state regulatory schemes date from earlier waves of resource extraction, and have not kept pace with changed technologies, nor with a deepening concern for public health and the environment.
Halliburton’s Interests Assisted by White House – Tom Hamburger and Alan C. Miller – October 14, 2004
The administration has lent support to a lucrative drilling technique. Some in the EPA consider it an environmental concern. Over the last four years, the Bush administration and Vice President Dick Cheney’s office have backed a series of measures favoring a drilling technique developed by Halliburton Co., Cheney’s former employer. The technology, known as hydraulic fracturing, boosts gas and oil production and generates $1.5 billion a year for the company, about one-fifth of its energy-related revenue. In recent years, Halliburton and other oil and gas firms have been fighting efforts to regulate the procedure under a statute that protects drinking water supplies. The 2001 national energy policy report, written under the direction of the vice president’s office, cited the value of hydraulic fracturing but didn’t mention concerns raised by staff members at the Environmental Protection Agency. Since then, the administration has taken steps to keep the practice from being regulated under the Safe Drinking Water Act, which Halliburton has said would hurt its business and add needless costs and bureaucratic delays.
An EPA study concluded in June that there was no evidence that hydraulic fracturing posed a threat to drinking water. However, some EPA employees complained about the study internally before its completion, and others have strongly criticized it publicly since its release. One of them, an environmental engineer and 30-year EPA veteran in Denver, last week sought whistle-blower protection in an 18-page statement sent to the agency’s inspector general and members of Congress.
The statement alleges that the study’s findings were premature, may endanger public health and were approved by an industry-dominated review panel that included a current Halliburton employee. “EPA produced a final report … that I believe is scientifically unsound and contrary to the purposes of the law,” Weston Wilson wrote to lawmakers. EPA spokeswoman Cynthia Bergman said Wednesday that the agency was reviewing Wilson’s statement but did not “believe that any of the concerns raised by his analysis would lead us to a different conclusion.” Cheney declined to be interviewed or to answer specific questions for this story. His spokesman, Kevin Kellems, cited the vice president’s commitment to keeping the 2001 energy policy deliberations confidential, a principle Cheney is defending in federal court. “There is an important principle at stake in protecting the ability of the office of the president and vice president to receive the most candid and direct advice and counsel during the policymaking process,” Kellems said.
Halliburton, where Cheney was chief executive from 1995 to 2000, is the leader among three large companies providing most fracturing services to oil and gas drilling operations around the world. Fracturing affords access to hard-to-reach energy deposits by forcing pressurized fluids deep into the earth, creating underground fissures that permit oil and gas to flow toward surface wells. Halliburton and other energy companies have applauded the administration’s support of fracturing, which they say has proved safe for decades. Efforts to regulate hydraulic fracturing became a concern for the industry during Cheney’s tenure at Halliburton.
A group of Alabama residents went to court in 1995 seeking to force regulation of the practice under the federal drinking water law. Halliburton filed a brief in the case, arguing that environmental regulation of the practice “could have significant adverse effects” on its business. The company subsequently played a leading role in lobbying against efforts to regulate fracturing under federal drinking water laws. Cheney, who left Halliburton in August 2000 to run for vice president, has said he has severed all ties to the company. Since he took office in January 2001, Cheney has received $398,548 in deferred compensation, and he will continue to receive annual payments through 2005. He also has 433,333 options to purchase Halliburton stock, according to financial disclosure records filed in May 2004.
But his staff has pointed to an insurance policy that guarantees that the vice president will receive the deferred compensation no matter how Halliburton does — and to his commitment to donate any profits from the stock options to charity. The administration’s ties to Halliburton have become an issue in the presidential campaign. Democrats criticize the administration for awarding the company billions of dollars in contracts in Iraq. Cheney has said he played no role in the Iraq contracts. Less attention has been paid to Halliburton’s domestic operations. The company, like many in the oil and gas business, has benefited from an administration led by two former oil executives, both of whom have made clear their belief that too many regulatory hurdles hamper efforts to increase domestic energy production.
Energy Breakthrough
In 1949, engineers from Halliburton Oil Well Cementing Co. gathered in an Oklahoma field to experiment with a new drilling technique: They pumped gasoline, napalm, crude oil and sand into the ground under enormous pressure in hopes of stimulating oil from a 4,882-foot-deep well. This successful test of hydraulic fracturing would “forever change the workings — and fortunes — of the energy business,” said a Halliburton news release commemorating the experiment’s 50th anniversary. The company estimates that the technique has increased recoverable oil and gas reserves in North America by as much as a third. About 28,000 wells a year are fractured. Halliburton services at least one-third of the market, analysts say.
The ingredients used in fracturing vary with the job and the terrain. Most of them are as benign as food additives, but they can include toxic chemicals. In every case, the fluid includes water and a “propping agent” — usually fine sand or ceramics mixed with a chemical gel — that is pumped into the cracks to keep them open. A second chemical mixture liquefies the gel so that much of the injected water and chemicals can be removed before the gas is extracted. But some of the fluid remains in the ground, a cause for concern in heavily drilled areas. Energy companies say there is not a single proven case that fracturing fluids caused contamination.
But in Alabama, a group of residents petitioned the EPA in 1994, saying that their drinking water had been fouled by fracturing fluid used to extract methane from coal beds. They asked the agency to force the state to regulate fracturing under the federal Safe Drinking Water Act. They argued that wells subjected to fracturing should be held to the same pollution standards as wells used to dispose of waste from energy production.
The EPA denied the request. Residents asked the U.S. 11th Circuit Court of Appeals to overturn the decision, and in 1997, the court ruled that fracturing should be regulated under the federal drinking water law. The Alabama case set off a scramble in the industry, which feared it would lead to wider regulation of fracturing — imposing costly requirements for permits, inspections and testing. While the court case was unfolding, lobbyists for Halliburton and other energy companies began pressing the Clinton administration to exempt fracturing from regulations under the drinking water law. They made limited progress. Former EPA Administrator Carol Browner was called to Capitol Hill to meet with members of Congress from gas-producing states. She said more study was needed, and the agency launched the drinking water study that ended this year.
Cheney-Led Task Force
Nine days after his inauguration in 2001, President Bush asked Cheney to head a Cabinet-level task force to draw up a national energy strategy. The task force consisted of the vice president, nine Cabinet members and five senior administration appointees. Research and writing was directed by two aides to Cheney supported by a working group of representatives from participating Cabinet agencies. The working group met through February and March, often in the vice president’s ceremonial office, to develop recommendations for the principals — Cheney and Cabinet members. The Cheney-led task force would tackle some of the highest-priority issues on the new administration’s energy agenda: expanding oil and gas production, improving pipeline and power line transmission systems and developing a new approach to regulating air and water pollution.
To the surprise of some of those involved in the effort, the Cabinet-level panel also would consider a narrower topic of importance to Cheney when he headed Halliburton: hydraulic fracturing. Cheney has cited executive privilege to keep task force deliberations secret. But interviews and records obtained by The Times show that Cheney’s office was involved in discussions about how fracturing should be portrayed in the report, and that it resisted EPA attempts to include concerns about its effects on the environment. The Energy Department drafted language for the task force that described hydraulic fracturing as essential to increasing domestic gas production and that asserted that production would be hurt by regulation under the Safe Drinking Water Act.
Documents obtained by The Times show that in the spring of 2001, EPA officials corresponded with the vice president’s office at least three times requesting modifications in the proposed language. The EPA specifically asked that the report note that the EPA was studying potential environmental consequences of the technique. A May 1, 2001, e-mail from the EPA to Karen Knutson, a Cheney aide serving as deputy director of the task force, proposed the addition of the following paragraph: “As a result of the … lawsuit on hydraulic fracturing of coalbed methane wells, the EPA recognizes this issue raises concerns and is conducting an investigation to evaluate the potential risks to … drinking water.”
The proposed language described the ongoing EPA study of fracturing and water quality, and noted that it could culminate in “a regulatory determination.” On May 3, EPA employees said, they received a final pre-publication draft of the report. Agency staff members met into the evening to discuss the lack of responsiveness from Cheney’s office on fracturing and several other issues. They decided to ask then-EPA Administrator Christie Whitman to write to the vice president personally to request modifications. The following day, Whitman initialed a memo to Cheney asking him to reconsider parts of the final draft, including the section on fracturing. Her note pressed Cheney to scale back the recommendation exempting hydraulic fracturing from regulation.
Whitman warned that the administration could be “walking into a trap” by taking a public position against any regulation before the EPA completed its study of drinking-water pollution. Whitman, who resigned last year, declined to be interviewed. Through a spokesman, she said, “EPA offered its expertise and input on relevant issues whenever possible,” but she said she didn’t recall details concerning the task force’s handling of hydraulic fracturing. “From my perspective, the vice president’s office was driving the issue of hydraulic fracturing,” said Jeremy Symons, a former EPA staffer assigned to the task force, who now works for a wildlife conservation organization. When the task force report was released on May 16, 2001, the reference to an exemption from regulation was gone.
But the report described the benefits of fracturing in detail without any mention of the EPA study. “In certain formations, it has been demonstrated that the gas flow rate may be increased by as much as twenty-fold by hydraulic fracturing,” the report said, noting that “most new gas wells drilled in the United States will require hydraulic fracturing.” Although Cheney declined to answer questions about his office’s role in the fracturing discussions, his spokesman, Kellems, said the task force encouraged “environmentally sound production” of energy. During the next three years, the administration supported a regulatory exemption for the practice on Capitol Hill and at the EPA. Cheney participated in House-Senate conference committee negotiations last year that produced a sweeping national energy bill with a provision that would exempt fracturing from EPA drinking water regulation.
Bush and Cheney immediately endorsed the energy bill. Some of those involved in the meetings said they could not recall or did not know whether Cheney intervened on behalf of fracturing. Halliburton spokeswoman Wendy Hall said the company “did not contact Vice President Cheney or his office about hydraulic fracturing or the [provision in] the energy bill.” The bill has passed the House, but has languished in the Senate under the threat of a filibuster. Although stymied in Congress, the gas and oil industry won an important victory within the administration. In June, the EPA released its long-awaited study initiated in response to the Alabama lawsuit. The report focused on the use of fracturing to recover methane gas from coal beds, which often lie close to the surface and near groundwater used for drinking. The report concluded that “injection of hydraulic fracturing fluids into coal bed methane wells poses little or no threat” to drinking water supplies and “does not justify additional study at this time.” Hall said the study confirmed Halliburton’s “long-standing belief that hydraulic fracturing poses little or no threat to drinking water sources.”
But the EPA study has come under sharp attack within the agency. An EPA water expert, who reviewed drafts of the report before its release, said he complained internally about several flaws. The water expert, who did not want his name used because he was speaking without authorization, said his concerns were largely ignored. Wilson, the EPA environmental engineer, and two other specialists from the EPA Denver regional headquarters told The Times they were not consulted, even though their territory included the country’s richest coal bed methane fields and some of the nation’s most vulnerable water supplies. In his statement to the EPA inspector general and members of Congress, Wilson said the study did not follow approved methodology, relied on a panel of experts with conflicts of interest and failed to include any field investigation. The report was based largely on a review of fracturing studies, reports of water contamination and consultations with state regulatory officials. The EPA decided against proceeding with a second phase of independent fieldwork. “This study was hijacked,” Wilson said in an interview.
The EPA’s multiple failures “may result in danger to public health and safety,” he said. Wilson’s statement said the study found that fracturing fluids often contained hazardous chemicals. But because their patented formulas are proprietary, all the potential compounds are not publicly identified, he said. “EPA cannot objectively nor scientifically defend its claim that this practice does not risk endangering sources of underground drinking water,” Wilson said in an interview. Agency officials said the chemicals were diluted and dispersed enough to minimize the risk. And they said their analysis of incident reports found no firm proof that fracturing had directly caused drinking water contamination. “Unless we actually see threats to drinking water supplies, the Safe Drinking Water Act admonishes EPA not to regulate injection for oil and gas production unnecessarily,” said EPA spokeswoman Bergman.
The report did find that diesel fuel in fracturing fluid posed a risk to drinking water. But EPA officials said no regulatory action was necessary, because the three major fracturing companies voluntarily agreed to stop using the fuel in coal bed methane operations. Wilson’s statement says the arrangement is inadequate, because the EPA has no way of enforcing it and any of the parties can drop out at will. The EPA report was reviewed by a seven-person panel: a senior technical advisor at Halliburton, a manager from an industry-funded research institute who previously worked for Halliburton, a senior engineer with BP Amoco and two academics who had worked for the energy industry. A sixth member, a state regulator with an engineering background, also had worked for Amoco. The final member was an expert on hydraulic fracturing from Sandia National Laboratories in New Mexico.
The Fight Over a Drilling Technique
When Dick Cheney led Halliburton Co. in the late 1990s, the firm opposed Environmental Protection Agency regulation of hydraulic fracturing, a technique that pumps pressurized fluid into the ground to boost oil and gas production. Halliburton and two other companies dominate worldwide use of the method. The administration of President Bush and Vice President Cheney has taken steps to keep the practice of hydraulic fracturing from being regulated by the EPA under federal drinking water laws.
- 1995: Dick Cheney becomes chief executive of Halliburton Co., a leader in fracturing.
- 1997: Alabama residents win a ruling in U.S. appeals court that fracturing should be regulated under the Safe Drinking Water Act.
- 1999: Following up on its ruling, the U.S. appeals court orders the EPA to oversee fracturing in Alabama.
- 2000: Halliburton lobbies in Washington to exempt fracturing from regulation under drinking water law.
- 2001: Vice President Cheney convenes task force to devise a national energy policy.
- 2001: The EPA chief presses Cheney to scale back language recommending the exemption of fracturing from a task force report. The exemption recommendation is removed, but the report notes the benefits of fracturing.
- 2003: Bush and Cheney back a sweeping energy bill that includes a provision to exempt fracturing from EPA drinking water regulation.
- 2004: An EPA study concludes that fracturing does not threaten drinking water.
- 2004: An EPA environmental engineer seeks whistle-blower protection after telling the agency inspector general and lawmakers that the EPA fracturing study is scientifically unsound.
What is the “Halliburton Loophole?”
The “Halliburton Loophole” refers to legislation introduced in the 2005 Energy Policy Act that exempts hydraulic fracturing and oil and gas drilling from certain sections of the Safe Drinking Water Act of 1974 and the Clean Water Act of 1972. As such, the Halliburton Loophole legislation represents a significant reduction in federal oversight of drilling and fracking operations. The Energy Policy Act passed in Congress and was signed into law by President George W. Bush in the summer of 2005. The act was the result of a four year period of bipartisan negotiation in an effort to establish sweeping federal policy reforms in a diversity of energy platforms including coal, nuclear, hydroelectric, ethanol, and oil and gas. Changes introduced included the creation of new safety standards, the restructuring of licensing procedures, the subsidizing of energy research, and of course, the exemptions that constitute the Halliburton Loophole.
What does Halliburton have to do with it?
As the discovery of vast amounts of natural gas in the Marcellus Shale formation has made drilling and fracking a pressing issue in the densely populated east coast of the United States, the term “Halliburton Loophole” has become increasingly apparent in popular culture. However, the actual legislation it refers to does not actually mention Halliburton in any capacity. Where did this term come from? Mainly, this form of reference stems from the involvement of then Vice President Dick Cheney in the insertion of the exemptions into the 2005 Energy Act. Cheney was chairman of the Energy Policy Task Force established by President Bush—an organization that wielded heavy influence in the 2005 legislation and recommended inclusion of the exemptions. Cheney was also a former executive of Halliburton. In a secondary capacity, the term is resultant of the fact that Halliburton has always been strongly associated with fracking. Although experimental hydraulic fracturing methods were first developed in the late 1940s by Stanolind Oil, the fracking process was first patented under the name “Hydrafrac” by the Halliburton Oil Well Cementing Company in 1949. In short, the term “Halliburton Loophole” is a result of associations between Halliburton and the insertion of the exemptions as well as between Halliburton and the technology itself. The “Halliburton Loophole” does not in fact refer specifically to Halliburton or grant the company any special powers or exemptions.
The Halliburton Loophole and the Safe Drinking Water Act
The Safe Drinking Water Act (SDWA) was implemented in 1974 with the goal of preserving the purity and safety of the limited supply of potable water in the United States. The act granted and enhanced federal regulatory power over industrial operations with the potential to cause pollution in drinking water supply. In fact, the SDWA constitutes the bulk of the EPA’s authority to enforce protection of US water supply11. A special focus of the SDWA is the establishment of extensive restrictions on “underground injection” which is defined as “the subsurface emplacement of fluids through well injection.” This definition would include fracking operations and subject them to any and all restrictions outlined in the Act. By excluding natural gas and fracking fluid injection from the definition of “underground injection”, the 2005 legislation exempts these processes from all associated provisions of the SDWA, stripping the EPA of the vast majority of its regulatory power in these cases.
The Halliburton Loophole and the Clean Water Act
Another major body of federal legislation amended in the 2005 Energy Policy Act was the Clean Water Act. The Clean Water Act (CWA) was introduced in 1972 with the purpose of establishing permitting systems for industrial processes in order to curtail the introduction of pollutants into US waters from point sources. The CWA is another major source of EPA regulatory power, granting the agency the authority to set industry-wide standards for the quality and disposal of effluent water7. That power was further expanded in 1987, when the definition of “effluent water” was expanded to include rainwater runoff from industrial operations5. The Energy Policy Act again significantly reduces EPA regulatory authority of oil and gas drilling by introducing language that creates exemptions from Clean Water Act provisions. This reduction is accomplished in several ways:
- Chemicals additives used in fracking fluid are formally defined as “tools” used by the oil and gas industry rather than as “pollutants”. Thus, restrictions applying to pollutants are circumvented by fracking chemicals.
- The oil and gas industry is exempted from the 1987 inclusion of rainwater runoff restrictions5. As a result, the EPA cannot regulate any potential pollution that may occur as a product of rainwater runoff from drilling sites and drilling rig construction.
- What does the Halliburton Loophole mean for industry and communities?
In examining the impact of the Halliburton Loophole on industry and communities, it is vital to distinguish between federal and state regulatory power. While the Halliburton Loophole effectively cripples the EPA’s regulatory authority over oil and gas drilling and fracking activities, it is important to remember that the EPA is a federal agency. The Halliburton Loophole is significant in that it severely limits federal oversight. State regulatory capabilities remain unaltered by the 2005 legislation. This fact raises questions regarding the practical impact of the loophole. … Critics of the loophole itself believe that a national standard is needed in order to ensure safe drilling and hydraulic fracturing. Currently, the EPA retains the right to regulate the use of diesel fuel additives in hydraulic fracturing under the Safe Drinking Water Act.
However, proponents of federal regulation maintain that more comprehensive federal standards are needed. While the effective exclusion of federal government from drilling and fracking regulation by the Energy Policy Act received bipartisan support in 2005, the initiation of an environmental study on fracking in 2011 may signal a shift in EPA policy8. Following 2005, former EPA Administrator Lisa Jackson expressed the need for greater federal regulation8. Furthermore, several measures have been introduced attempting to repeal exemptions and introduce federal legislation post-2005.
- The Fracturing Responsibility and Awareness of Chemicals (FRAC) Act was introduced to Congress in 2011 with the intent of closing the Halliburton Loophole9. While the Act was not enacted in 2011, it has been recently reintroduced for voting and discussion.
- The FRESHER Act, introduced into Congress in 2013 by House Representative Mathew Cartwright, is aimed at paring down oil and gas exemptions in the Clean Water and Clean Air Acts.
- The BREATHE Act, introduced by Representative Jared Polis, would further attack exemptions applying to the Clean Air Act.
While oil and gas drilling has previously been regulated primarily on a state and local basis, the recent introduction of these three acts along with EPA investigation into fracking practices may signal greater federal regulation down the road. However, under current law, involved and interested citizens should look to state and local agencies to learn about drilling and fracking regulation.
Exclusive: EPA Whistle-Blower Warns EPA Must Not Buckle to Industry Pressure and Greenwash Fracking Yet Again by Weston W. Wilson, October 11, 2011
Weston Wilson was an environmental engineer at the EPA for more than 37 years before leaving the agency in January, 2010. In 2004, Wilson sought whistle-blower protection based on his report to Congress about EPA’s study of hydraulic fracturing. His findings questioned EPA’s conclusion that there was no evidence that hydraulic fracturing posed a threat to drinking water. “EPA produced a final report … that I believe is scientifically unsound and contrary to the purposes of the law,” Wilson wrote to lawmakers.
As the boom in shale gas continues, the country finds itself at a crossroads. How will the government regulate hydraulic fracturing in order to keep air and drinking water safe? In spite of the importance of these efforts, the oil and gas industry has launched yet another slick, well-funded campaign to resist oversight. Their campaign depicts EPA as an over-reaching bureaucracy driven to regulate companies into bankruptcy, killing jobs and preventing U.S. energy independence. Nothing could be further from the truth. EPA has had a limited role – too limited in fact – in regulating drilling, a responsibility that has been left almost entirely to the states. The oil and gas industry has also criticized EPA’s effort to conduct a rigorous multi-year study of the potential environmental risks of a drilling technology known as fracking, which is driving the current drilling boom.
But isn’t it in everyone’s best interest to have good science guiding a practice that may affect the water we drink and the air we breathe? And isn’t this EPA’s fundamental role? This is not the first time that the EPA has studied fracking, nor the first time the industry has exerted strong pressure on EPA to soften the outcome. In the 1980’s the agency set out to determine whether oil and gas industry waste should be considered hazardous waste. They produced a report that concluded there was no need to make the oil and gas industry follow the same rules as other industries when it came to disposing of their waste because, EPA alleged, the risks from drilling were low. But an early version of the same report concluded the waste was in fact hazardous and should be closely controlled. EPA scientists who had worked on the report blamed political pressure for the reversal.
This same pattern continued during my tenure at EPA. EPA’s 2004 report on hydraulic fracturing found little to no risk to water supplies. But this was contradicted by evidence of the toxic chemicals used by the industry that could create significant risks. The panel in charge of the final report was filled with industry representatives. Five of the seven members of that peer review panel were current or former employees of the oil and gas industry, including a representative from Halliburton. Recently, the industry has attacked media venues for raising important questions about drilling practices. Most of their attention has been focused on The New York Times, which has published a series of stories, each paired with a phone book-sized stack of original documents published on the Times website. This series of investigative reports has brought attention to the serious issues that must be addressed before we embrace natural gas as a cure-all to our energy woes.
One of the reasons the industry is targeting the Times is that its stories have had an unprecedented role in prodding EPA into action. In March, for example, the Times ran several stories showing that hundreds of millions of gallons of natural gas wastewater was being dumped into Pennsylvania’s streams after limited treatment at community sewage plants. Often, these sewage treatment plants are short distances upstream from the next community’s drinking water intake. The Times reports revealed that federal and state officials were not monitoring these treatment facilities to prevent contaminants in this drilling waste from entering people’s drinking water system. During Congressional hearings following the Times articles, EPA officials were grilled by federal legislators over the situation in Pennsylvania. Within days of the Times story, EPA Administrator Lisa Jackson personally intervened, catching a train to meet with officials from the agency’s Philadelphia office to find out why they had not taken an assertive role.
One of her first stops was to call the regional administrator on the carpet — in part because the Times published leaked emails from EPA staff. These emails said the regional administrator told his staff not to put plans for the EPA’s national study of fracking in writing, because the public could then access the documents and would expect the agency to follow through. EPA’s National Enforcement Investigation Center, the agency’s investigative arm, was directed to follow up on the finding that treatment plants were not removing some dangerous contaminants from waste water being discharged into Pennsylvania’s streams. With continued pressure from Jackson and EPA headquarters lawyers, EPA officials in the Pennsylvania regional office took a firmer stance demanding that testing of the sewage treatment plants be done.
Lawyers within the agency also combed through the leaked documents published by the Times and realized that communications between agency headquarters and the region had been, to put it kindly, less than accurate. They discovered that documents they had been told by EPA regional officials did not exist, the very documents needed to build an enforcement case, were now on the Times website, in full. The enforcement division of EPA has stepped up their investigation into whether treatment plants were in violation of their Clean Water Act permits. Federal lawmakers have begun drafting legislation to require monitoring of radioactive materials and other contaminants in the oil and gas wastes. In April, Pennsylvania told drilling companies to stop sending their waste water to municipal sewage treatment plants until strict standards are created. These are positive developments. And it is incumbent upon EPA and the media to keep asking tough questions about proper regulation of drilling, despite industry pressure to maintain the status quo. Too much is at stake to repeat the mistakes of the past, for nothing short of protecting public health and welfare is at stake.
Click this Link to Download PDF of the aboe EPA Report
EPA Whistleblower Talks “Fracking” with Marcellus Environmental Leaders, June 25, 2010
EPA whistleblower Weston Wilson addressed hydraulic fracturing concerns with environmental leaders on Saturday, June 19. The 150-or-so environmental activists came from across the Marcellus Shale region (New York, Pennsylvania, Ohio and West Virginia) for a summit hosted by the Coalition to Protect New York (CPNY). Sessions focused on a diversity of land issues and health concerns, but the central focus was fracking. Wilson, an environmental engineer with the US Environmental Protection Agency (EPA) reviewed what went wrong with the 2004 EPA report on hydraulic fracturing of coal bed methane reservoirs. EPA scientists proved that there was a risk of benzene and other toxic chemicals migrating into ground water from drilling activities.
But, Wilson said, heavy industry influence on the panel reviewing the report suppressed this data from the final report. The 2004 study is flawed. And it is those flawed findings that were used by congress to exempt the process of hydro-fracking from the Safe Drinking Water Act. “Things have changed now,” Wilson said. “The EPA is beginning a new study on hydro-fracking, but even with $1.9 million it is underfunded.” The new study promises to be broader in scope, looking at impacts of the entire life cycle of gas drilling. And it won’t be limited to coal bed methane, Wilson pointed out. The new study promises to be more transparent, too, and peer-reviewed. But that doesn’t mean it’s perfect, Wilson warned. The EPA isn’t interested in studying Dimock, PA or Hickory, or Pavillion, Wyoming, or any of the places that have already experienced water contamination related to drilling activities.
Fracking presents risks
Wilson listed a number of risks that drilling dependent on high-volume hydraulic fracturing presents. Spills – especially spills of undiluted fluids or chemicals – topped his list. While he admitted that the bulk of fracturing fluid is benign, Wilson pointed out that chemicals are added to thicken and thin the drilling mud as needed. The storage and movement of these undiluted chemicals produce an opportunity of risk, he said. Storing frack fluid in pits creates pathways of exposure via both an air and water. Air emissions, from the volatile chemicals in the fluid, present a temporary risk – unless you are a worker suffering chronic exposure to the chemicals. Leaking pits create long-term risks that may remain hidden for decades. Fracking fluids can also mobilize toxics that are present in the rock formation, such as radon and other Naturally Occurring Radioactive Materials (NORM). Production fluids – the brines that come out of the rock formation – contain both frack and formation toxics. Wilson’s advice:
- Make sure that your state requires ground-water testing and monitoring prior to drilling – ambient air monitoring, too.
- Support the current EPA Fracking Study
- Support the FRAC Act
- Support a state moratorium (especially people in NY)
- Ensure that science is done by those who do not have a financial interest in the industry
Cheney Played Key Role In Setting Up Fracking Atrocity – April 13th, 2014
The main promoters of fracking shale gas and oil, and the “natural gas revolution” as EIR has stressed, are the Anglo-Dutch Empire, led by BP and Royal Dutch Shell. Cheney’s company, Halliburton, played an important role as well, through deploying new techniques for the process, and exploiting the protection from regulation, which was arranged by Cheney et al. in the Bush Administration. After his stint at Halliburton, of course, Cheney moved on to run the White House. One of his first projects was heading the Energy Task Force (January to June, 2001) to devise a national energy strategy—a task force which involved various cabinet departments meeting with top energy cartel members including Enron, ExxonMobil, Conoco, and BP and Royal Dutch Shell!
In addition to mapping out the areas of Iraqi oil of interest to Anglo-American interests, the task force identified fracking as “one of the fastest growing sources of oil production.” It also declared that we should reconsider any regulatory restrictions that do not take technological advances into account. The next step came with the Energy Policy Act of 2005, which amended the Safe Drinking Water Act to exclude fracking from special EPA oversight and specified that the chemicals used in the process were not to be labeled as pollutants under the Clean Water Act! Not surprisingly, this was called the “Halliburton loophole,” because of the heavy role played by Halliburton in ensuring that Congress exempted this technology from (rational) environmental oversight.
Former Bush EPA Official Confirms 2004 EPA Fracking Study Was Misused by TJ Scolnick – 2011-05-23
Ben Grumbles, former assistant Environmental Protection Agency (EPA) administrator and head of the agency’s Office of Water, revealed last week that the conclusions from a 2004 EPA report [pdf] discussing the safety of hydraulic fracturing (a.k.a. fracking) have been exaggerated for years. In 2004, after a four-year study examining the environmental and safety implications from fracking into coal bed methane reserves, the agency determined that although fracking may release “potentially hazardous chemicals into” drinking water, the drilling process poses “little or no threat” and “does not justify additional study at this time.” Since 2004, that study has been used as fodder by politicians and the gas industry to justify a massive fracking boom. Grumbles is now President of the Clean Water America Alliance (a group with no formal position on fracking). He explains that the 2004 report did not deem all fracking to be safe. Specifically, 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.” “A lot has happened since 2005 and, in my view, it makes sense to review the Safe Drinking Water Act landscape as well as the relevance of Clean Water Act programs. Political and legal battles have been growing in state and federal courts and agencies, with particular attention to fracking for shale gas, which is different from fracking for coal bed methane, the primary subject of EPA’s 2004 report.”
This is not the first time that Grumbles has spoken out against industry’s contention that the agency report provided blanket cover to protect frackers from public oversight. In June 2009 and March 2011 interviews with ProPublica he responded to the often-cited claim that fracking received a “clean bill of health” from the EPA:
“When we got the report, it was a snapshot in time. It was a thorough review describing the issues. Whether it’s hydraulic fracturing or any other type of practice that can have an impact on the environment, one single report shouldn’t be the basis for a perpetual, never-ending policy decision.” “It wasn’t meant to be a bill of health saying ‘well, this practice is fine. Exempt it in all respects from any regulation.’ I’m sure that wasn’t the intent of the panel of experts, and EPA never viewed it that way. That’s one reason why we were urging Congress to say ‘look, if you are going to issue an exemption, ensure that it is not perpetual.’”
Unfortunately, dirty energy advocates in Congress and the gas industry refer to the study time and again in order to rationalize destructive fracking, regardless of the serious environmental, health and safety consequences. ProPublica continues to question the scientific merit of that 2004 report and in 2008 drew attention to the fact that some EPA staff engaged in that study had negotiated a deal with Halliburton. Because of the role former U.S. Vice President and Halliburton CEO Dick Cheney played in supporting the exemption, it is known as the “Halliburton Loophole.” After the report was released, longtime EPA scientist Weston Wilson wrote to Colorado representatives stating that “based on available science and literature, EPA’s conclusions are unsupportable.” He also identified that five out of seven members of the review panel had conflicts of interest and “may benefit from EPA’s decision not to conduct further investigation or impose regulatory conditions.” Despite Grumbles’ clarifying statement, the gas industry continues to trumpet the EPA study as proof that there was a scientific basis for exempting fracking from the Underground Injection Control provisions of the Safe Drinking Water Act, included in the Cheney-driven 2005 Energy Policy Act.
Former Bush EPA Official Says Fracking Exemption Went Too Far; Congress Should Revisit by Abrahm Lustgarten, March 9, 2011
When Benjamin Grumbles was assistant administrator for water at the Environmental Protection Agency in the George W. Bush administration, he oversaw the release of a 2004 EPA report that determined that hydraulic fracturing was safe for drinking water. Then he watched as Congress used those findings to bolster the case for passing a law that prohibited the EPA from regulating fracking under the Safe Drinking Water Act. In two interviews with ProPublica — the first on June 29, 2009, soon after he left the EPA, and the second on March 5, 2011 — Grumbles ponders the criticism leveled at the 2004 study and suggests that it’s now time for Congress and the EPA to take another look at hydraulic fracturing. Our questions, and his answers, have been combined and edited for length to the version you see here. Grumbles is currently on the board of the Clean Water America Alliance, a group focusing on water sustainability issues. He has also served as head of Arizona’s Department of Environmental Quality.
Q: In the 2004 EPA study, which examined hydraulic fracturing in coalbed methane gas wells, a commission of experts concluded that the process “poses little or no threat” to underground sources of drinking water. That study has since been criticized. Where do you stand?
I saw that there were accusations, by Congressman (Henry) Waxman and Congresswoman (Diana) DeGette, that somehow politics were involved in that commission, or that it was too heavily slanted towards an industry perspective and that there were not enough environmental groups on that commission. There was also an employee in Denver who claimed whistle-blower status and felt that there was a greater risk to groundwater than was being acknowledged. Honestly, I never felt that the claims had much merit. The career employees reviewing the report were quite comfortable with the integrity and product of that commissioned report. So, they recommended to me that hydraulic fracturing was not the type of threat that should be as high a priority as other types of threats to drinking water supplies. They took great offense to some of the other accusations that were made that the commission was biased in some way.
Q: You’ve said the study was never intended to be a “clean bill of health.” Can you explain?
When we got the report, it was a snapshot in time. It was a thorough review describing the issues. Whether it’s hydraulic fracturing or any other type of practice that can have an impact on the environment, one single report shouldn’t be the basis for a perpetual, never-ending policy decision. It wasn’t meant to be a bill of health saying ‘well, this practice is fine. Exempt it in all respects from any regulation.’ I’m sure that wasn’t the intent of the panel of experts, and EPA never viewed it that way. That’s one reason why we were urging Congress to say ‘look, if you are going to issue an exemption, ensure that it is not perpetual.’
Q: You’re referring to the exemption passed by Congress as part of the 2005 Energy Policy Act, which prohibited the regulation of fracturing under the Safe Drinking Water Act. What did you think about the idea of an exemption?
The career staff and I felt that when Congress provides a permanent exemption in an environmental statute, they need to be very careful about that and they need to have some built-in review process or safeguards so that if there is a risk presented, either the states or the EPA can then revisit it.
Q: Why, then, did you relinquish authority to both regulate the process and to revisit the issue?
I was disappointed, and I think others at EPA were disappointed, that the language [of the exemption] did not include the type of safety net language that I suggested. It is not for one office and one agency to announce a position of the executive branch. And our view was, we had concerns about the scope of the language, we provided technical assistance and information, and ultimately Congress decided not to include the language that we had suggested. I was disappointed by that, but there is always tomorrow, and there is always the opportunity for additional facts to get Congress to revisit the exemption.
Q: So, were you overruled?
No, I felt that the commission’s report [the 2004 EPA study] was an important piece that indicated that this was not presenting a significant threat to groundwater. I did feel as a matter of policy that the exemption was broader than it should have been at the time. We certainly did not ask Congress to exempt hydraulic fracturing. We opposed the language, and we did provide information to executive committees.
Q: How did politics influence the EPA’s oversight of this issue?
What came across clearly to the EPA was that the [Bush] administration did not want us to take a formal position of opposition to the exemption. It wasn’t so much a pressure. It was just very clear, here is the situation: EPA officials or career staff are not to take a position of opposition or support for the legislation. I’m not saying that there was political pressure in some sense of being told not to say certain things. This is the case in all high-profile legislative and congressional issues over my six years at EPA. When it comes to working with Congress, the EPA is one important voice in where the executive branch is coming from, but it is not the only voice. So, as is always the case with any administration, there was coordination of the process with the Department of Energy, Office of Management and Budget, the White House. I know the office of the vice president [Dick Cheney] was involved, but I honestly did not see much involvement at all.
Q: How did you get the message that the EPA shouldn’t take a formal position on the exemption?
They would say, ‘continue to monitor this issue, work with congressional offices, explore the language, but don’t take a formal position either for or against the language that was being developed in Chairman Barton’s committee.’ [Joe Barton, House Energy and Commerce Committee]
Q: The EPA’s 2004 report did find that diesel fluid in fracturing presented a risk to groundwater. How was this addressed?
The former administrator [of water] Tracy Mehan recognized that under current law the agency was not regulating or prohibiting diesel fluids from being used in the hydraulic fracturing process, so he signed, on behalf of the EPA, an MOU [memo of understanding] with major companies that have a major stake in this, voluntarily getting them to commit not to use diesel fluids for the hydraulic fracturing process. Based on current law and what tools we had, I felt this was a positive step. And it was a sincere step forward for us to make sure that we were engaged with the industry and engaged in the sense that they knew we were watching this and knew that it could be a problem if they used this sort of a process.
Q: And now we learn from some members of Congress that diesel use continued despite those efforts …
It’s disappointing, and the agency needs to follow up and ensure that the industry is providing accurate and timely information. I think if the information is true that industry withheld information or misled regulators or the policy makers, then that is serious, and they need to provide all the relevant information they have. …
Q: How did the exemption change the EPA’s oversight of hydraulic fracturing?
Once Congress enacted that exemption it signaled to the agency, ‘well, we can do some review and monitoring of the situation, but we need to focus on some other priorities.’
Q: And what do you think of what has happened since that exemption was passed in 2005?
I’m not surprised at the discussions that have come up. Since then, there has been increasing data — this being one of the big topics of the day when it comes to water and energy — and there have been an increasing number of instances where communities and citizens have expressed concern. I think it is important to keep having that conversation as to whether an exemption makes sense, and also what additional science is needed to justify the continuation of the exemption.
Q: If the law had been written with the sort of safety net you wanted, would the recent news about water contamination have been enough to force the government to revisit the exemption issue?
Probably. From what I have seen and read about the past few years, while there is growing promise within the energy sector for natural gas and the hydraulic fracturing process, there is also a growing list of concerns. They weren’t known to us at the time, within the agency and within Congress. I’m not in a position to second-guess or revisit a law that is based on the data that we had at the time. We did not see this as a high-priority environmental risk. But we did know that this was a relatively new process and we had concerns that a particular exemption needs to be revisited when more is learned. Clearly Congress should focus on this and ask whether it should continue in place as is, given the increasing amount of information and concern over the practice. I support EPA’s effort to revisit the issue, to gather all of the facts and to do an even more comprehensive assessment.
Q: Should energy companies continue to be allowed to keep the names of the chemicals they use for fracturing secret?
I think this is one where it is important for the EPA and the Congress to ensure that the public has the relevant information as to what is happening in the hydraulic fracturing process. I think communities’ right to know is a valuable tool. There has always been a balance with confidential business information. But since we didn’t have the legal authority under the Safe Drinking Water Act, we had to rely on powers of persuasion and other tools to get the industry to commit to providing us information and also refrain from using diesel fuel.
Q: The conclusions of the 2004 EPA report don’t appear to reflect the severity of the concerns voiced in earlier drafts and even deeper in the pages of the same final version. Did political pressures influence the editing process?
If there were changes that were made, it is news to me. I really never saw any evidence of that. What I saw was the final report, and that EPA staff felt that the report was a solid product and there was integrity to the process. The most important thing was that at the time EPA felt that the report was a valid work, and that it was indicating that there was not a risk to groundwater. But that by itself doesn’t justify a statutory exemption, particularly an exemption that isn’t revisited.
Q: The 2004 EPA fracturing study was designed to be the first part of a three-phase process. But the first phase concluded that fracturing “does not justify additional study.” Why?
I don’t recall how it was resolved. There was never a sense that the chapter had ended. There was interest in our part in doing additional phases. Based on the conversations I remember having, further study and gathering information in the field would have been appropriate.
Q: Broadly speaking, what is the political environment that the EPA operates within?
Well, environmental laws can at times collide with energy policies and complicate energy policies. When the environmental statutes — the Clean Water Act, Clean Air Act, NEPA [National Environmental Policy Act] — are being discussed, other agencies have strong views and perspectives and want to support energy production and facilitate energy supply. The environmental laws and programs don’t always trump … If the mood of the nation is to increase energy independence and energy supply, some of the environmental provisions can be viewed as constraints or barriers to that process. We’ve got to keep working on ways to get the two, environment and energy, to be on the same side.
Burning Question: What Would Life Be Like Without the Halliburton Loophole? By Susan Phillips – December 5, 2011
Our most popular Burning Question, as voted on by StateImpact readers, is one that came from Howard Weissman. Weissman wants to know what the impact would be if federal regulations that apply to other industries were applied to the natural gas industry. Here’s Howard’s query:
Even though I don’t live in Pennsylvania (I’m in Delaware) I have a question regarding the Marcellus Shale drilling. At one time I heard that while V.P. Dick Cheney pushed through some legislation that exempts the companies doing the Marcellus shale drilling from having to meet the requirements of the Clean Water Act. So my first question is: Is this true? If it is true, … then, if I were a news reporter I would definitely make a huge front page story out of that!! If the companies were required to meet the Clean Water Act standards, would that pretty much solve the water pollution problems that the drilling is causing? Thank you.
In fact, a lot of attention and press coverage over the so-called “Halliburton Loophole” exists. It is true that some federal environmental statutes do not apply to gas drilling. Some of those exemptions date back long before Dick Cheney became Vice President in 2000. But the loophole refers to the Energy Policy Act of 2005, which exempts the hydraulic fracturing process, also known as fracking, from federal oversight under the Safe Drinking Water Act of 1974. Then Vice President Dick Cheney did have a hand in getting the exemption put into the Energy Policy Act. He chaired President Bush’s Energy Policy Task Force, which recommended fracking be excluded. And Cheney is a former Halliburton executive. Halliburton, by the way, began fracking in the 1940?s to extract for oil. But the use of fracking, combined with horizontal drilling, has only recently been used to mine shale gas. The loophole does have an exception. If drilling companies use diesel fuel to frack a well, they do have to get a federal permit.
Also amended in the 2005 Energy Policy Act was the Clean Water Act. Congress enacted the CWA back in 1972 as a way to regulate discharges into the country’s rivers and streams. The CWA was amended in 1987 to include storm water run-off. But oil and gas production are exempted from those regulations. And in the 2005 Energy Policy Act, those exemptions included oil and gas construction. Environmentalists worry about run-off from well pads, pipelines and construction sites. Without federal oversight, it’s up to the states to regulate gas drilling. In fact, some call the “Halliburton Loophole” a misnomer because states have their own rules in place. Pennsylvania’s Department of Environmental Protection Secretary Michael Krancer recently testified in Congress that federal oversight is unnecessary because the states are better equipped to implement and enforce their own rules.
Krancer pointed out in his testimony that the Energy Policy Act of 2005 had bipartisan support. And he’s right. Even the Chairman of Philadelphia’s Democratic Party, Congressman Bob Brady, voted for it, along with then-Senator Barack Obama. But the EPA has since revisited its original position to stay out of fracking oversight and is conducting a study of the practice. EPA Administrator Lisa Jackson has said federal standards are needed. And Pennsylvania Senator Bob Casey has introduced the FRAC Act, which would eliminate the gas drilling exemptions from the Clean Water Act, and the Safe Drinking Water Act. … The federal Water Pollution Control Act regulates municipal waste treatment facilities, not gas drilling per se. Earlier this year, Governor Corbett asked Pennsylvania’s drillers to stop using those facilities to treat drilling waste water. Harrisburg lawmakers are currently updating some aspects of the Oil and Gas Act through the Impact Fee bill.
And it’s not just the Clean Water Act, and the Safe Drinking Water Act that exempt the oil and gas industry. The Clean Air Act, passed by Congress in 1970, exempts oil and gas wells from aggregation. That means, each well site is considered an individual source of pollutants, and does not take into account all of the well sites in a specific area. When it comes to the handling of waste water, or frack water, that too is exempt from a federal statute called the Resource Conservation and Recovery Act. The RCRA tracks industrial wastes from “cradle to grave.” But when it comes to the oil and gas industry, as long as the waste water is on the drill site, or being transported, it is not considered hazardous. This also applies to drilling mud. That’s why trucks carrying waste water, which contains high levels of salts, toxic chemicals, as well as radioactive material, may be labeled “residual waste.”
The National Environmental Policy Act, or NEPA, requires federal agencies to do environmental impact statements if major industrial projects would impact the environment. But the Energy Policy Act of 2005 relegated oil and gas operations to a less stringent process. Finally, the Toxic Release Inventory requires industries to report toxic chemicals to the EPA. But the oil and gas industry are exempt from this reporting. So, would regulating the gas industry under these federal statutes solve the problems Howard refers to? It’s hard to say, because laws need enforcers. And whether the EPA can regulate more effectively than the states, and whether they even have the staff to track the rapidly growing gas industry, is up for debate.
Time to End the Cheney/Halliburton Loophole By The Daily Take Team, 12 February 2014
We live in a fracked up country, but thanks to Dick Cheney, there’s pretty much nothing we can do about it. Over the past decade, the extraction of natural gas through a technique known as hydraulic fracturing, or fracking, has emerged as one of the fossil fuel industry’s biggest money makers. In fact, according to Bloomberg, fracking was the biggest reason American oil output hit a 25-year high in 2013. The boom in fracking is, quite literally, hitting close to home.
A recent Wall Street Journal report looked at 11 of the country’s biggest energy-producing states and found that – “At least 15.3 million Americans lived within a mile of a well that has been drilled since 2000. That is more people than live in Michigan or New York City.” That report also found that in Johnson County, Texas alone “…more than 3,900 wells dot the county and some 99.5% of its 150,000 residents live within a mile of a well.” Like many places across the U.S., Johnson County is now basically one big drill site.
Not surprisingly, the fossil fuel industry is pushing fracking hard. Big oil has even found a friend in President Obama, who touted natural gas as a “bridge fuel” in his most recent State of the Union address. All due respect to the president, but fracking is not safe. Numerous studies have shown that it contaminates drinking water, threatens public health, and, in some cases, even causes earthquakes. If any industry in the country needs regulation it’s the fracking industry, but thanks in large part to Dick Cheney, it’s exempt from having to follow most important environmental laws on the books.
Let me explain: Back in 2005. President – excuse me Vice President – Cheney was hard at work doing what he did best: using his power as the second most powerful man in the country to protect his cronies in the oil business. His former employer, Halliburton, wanted to get more involved in the emerging American fracking industry, but it faced a potential major roadblock in the form of a 1974 law called the Safe Water Drinking Act. That act, signed into law by Republican President Gerald Ford, requires the Environmental Protection Agency to keep toxic chemicals from getting into Americans’ drinking water.
Cheney didn’t care about public safety but he did care about Halliburton’s bottom-line – after all, he was a big Halliburton stockholder when he became vice president – and so he joined the lobbying efforts to get Congress to carve out an exemption for fracking in the Safe Water Drinking Act. Thanks to that carve-out – let’s call it the “Halliburton loophole” – the EPA can’t regulate fracking poisons even when they get into our water supply. But Cheney and his oil industry buddies didn’t stop there. In 2005, Congress also gave the natural gas industry an exemption from having to write up reports on its activities under the National Environmental Policy Act and expanded its exemption from having to follow Clean Water Act regulations on what kind of chemicals it can dump in storm water runoff.
Coupled with existing exemptions to a variety of pollution laws like the Clean Air Act, the Resource Conservation and Recovery Act, the Superfund Act, and the Emergency Planning and Community Right to Know Act, the 2005 carve-outs gave the fracking industry seven total exemptions from important environmental regulations. Nine years later, it’s clear that Dick Cheney and Halliburton got what they wanted. Free from having to follow even the most basic environmental regulations, the fracking industry is bigger than ever and will likely continue to grow well into the future.
While other countries like France and Bulgaria with rich reserves of natural gas have banned fracking altogether, we here in the United States have done the exact opposite. Thanks to Dick Cheney’s Halliburton loophole, anyone who lives near a fracking site is one of the oil industry’s guinea pigs in a giant multi-decade fracking experiment.
But we don’t have to sit back and take it while big gas pollutes our water, our bodies, and our environment. We need to take action now to close the Halliburton loophole and all the rest of the fracking industry’s exemptions before more people’s water supplies and lives are ruined.
Call your local member of Congress right now and tell them that it’s time to say goodbye to the Bush years once and for all and close the Halliburton loopholes.
Fracking Companies Suck Life Like Parasites Suck Blood 