As some of you reading my blog will already know, in 2005 Congress created the “Halliburton Loophole” when it exempted the oil and gas production technique called hydraulic fracturing from federal regulation under the Safe Drinking Water Act. This act of Congress essentially overrode a decision by the U.S. Court of Appeals for the 11th Circuit.
A bit of background: the Safe Drinking Water Act (SDWA) states that the term underground injection “means the subsurface emplacement of fluids by well injection.” Under the SDWA, it’s against the law for any underground injection activity to endanger drinking water sources by introducing a contaminant that may adversely affect human health. In 1997, the 11th Circuit Court of Appeals concluded, very clearly and succinctly, that “hydraulic fracturing activities constitute 'underground injection' under Part C of the SDWA.” Therefore, if hydraulic fracturing activities endangered underground sources of drinking water, it would violate the SDWA--unless of course hydraulic fracturing is exempt from the law, which is currently the case.
Industry argues that hydraulic fracturing should not be regulated under SDWA because, among other things: “…. the fluids that are pumped into the subsurface as part of the hydraulic fracturing process are intended to be removed from the formations into which they are pumped.” Industry states that: “Upon completion of the job, the vast majority of materials used in the fracturing operation are recovered, stored and often submitted for treatment by the operator.”
It’s been clear for quite a while, however, that this is not the case and that the court ruled appropriately. In 1997, the court found evidence that a portion of the injected fluids remains in the ground. Since then, more information has become available. A recent ProPublica article reported companies and a regulatory officials have stated that “as much as 85 percent of the fluids used during hydraulic fracturing is being left underground after wells are drilled in the Marcellus Shale,” a formation in the northeast. The water treatment company ProChem Tech reports that “generally 10 to 20% is recovered.”
Reports of groundwater contamination linked to hydraulic fracturing operations have come from many different states around the country. Some of these have been unresolved for years. Groundwater in Bainbridge Township, Ohio, was contaminated after an explosion two years ago and the Northeast Ohio Gas Accountability Project reports that over 40 homes are still without their own clean running water. Groundwater testing at a farm in Pennsylvania found arsenic at 2,600 times acceptable levels and benzene at 44 times above limits. There are more examples.
Legislation has been introduced in both the U.S. House and Senate to close the Halliburton Loophole and mandate that hydraulic fracturing is federally regulated under the SDWA. The legislation is very reasonable and flexible and has support from many different types of organizations around the country. It would simply ensure that there is a minimal federal floor of protection in every state and give EPA oversight authority for this practice. Support is growing as more communities become aware of the risks involved in hydraulic fracturing.
It's time to close the Halliburton Loophole. You can easily contact your own Members of Congress and ask them to co-sponsor the legislation at the NRDC Action Center.