In 2005, Congress stripped EPA of its authority under the Safe Drinking Water Act to regulate injection of fracking fluids, except diesel fuels, as part as what is known as the “Halliburton Loophole.” Congress left intact EPA’s authority to regulate diesel fuels because they contain high levels of benzene, ethylbenzene, toluene or xylene (known as BTEX), chemicals that are highly mobile in groundwater and that are known to cause cancer or other significant health effects. In the past decade, and as recently as February 2014, the industry repeatedly has asserted that the use of diesel fuels in fracking no longer occurs.
And yet, we’ve identified 351 wells and found no evidence that any of the wells’ operators applied for or received a Safe Drinking Water Act permit. A June 2014 report by the U.S. Government Accountability Office addressed the continued use of diesel in the fracking process, and specifically noted that none of the state programs reviewed for the report had issued Safe Drinking Water Act permits. Moreover, we identified numerous fracking fluids with high diesel content for sale online, including over a dozen products offered by Halliburton (advertised as additives, friction reducers, emulsifiers, solvents, etc.) Operators are clearly buying these products without obtaining permits to use them. In addition, our review of diesel products available online found no indication that Halliburton or any other supplier is informing customers that injection of diesel products is prohibited unless authorized by a Safe Drinking Water Act permit.
