‘Halliburton Loophole’ Allows Fracking Companies to Avoid Chemical Regulation

For almost 20 years, U.S. public-health advocates have worried that toxic chemicals are getting into ground water and harming human health because of an exemption to the federal Safe Drinking Water Act that allows operators of oil and gas fracking operations to use chemicals that would be regulated if used for any other purpose.

The so-called Halliburton Loophole, named after the oil and gas services company once headed by former Vice President Dick Cheney, means that the industry can use fracking fluid containing chemicals linked to negative health effects including kidney and liver disease, fertility impairment and reduced sperm counts without being subject to regulation under the act. 

While environmentalists and public-health campaigners have long called for closing the loophole, they haven’t known how many of the regulated chemicals are used by the industry, how often the industry reports their use in its fracking disclosures, what quantities of the chemicals are used and how often the industry chooses not to identify its chemicals on the grounds that they are proprietary. 

Now, some of that data is publicly available in a study by researchers at Northeastern University and three other colleges. The paper, published in its final form in February, reports that the industry uses 28  chemicals regulated under the Safe Drinking Water Act and discloses them in up to 73 percent of its reports of fracking activities to FracFocus, an industry-sponsored database.

Between 2014 and 2021, the industry used 282 million pounds of the regulated chemicals, a number dwarfed by the 7.2 billion pounds of chemicals that were reported but not identified on the grounds that they are proprietary or trade secrets, the paper said.

The chemical most frequently reported to the database during that period was ethylene glycol, used by the industry as a friction-reducer and gelling agent, that can harm the eyes, skin, kidneys and respiratory system and even kill humans if swallowed, according to the federal Centers for Disease Control and Prevention.

Ethylene glycol was disclosed to FracFocus more than 52,000 times, or 45 percent of all disclosures, more than twice as often as any of the other regulated chemicals, during the study period. Operators used about 250 million pounds of the chemical, the study said.

The second-most commonly reported fracking chemical subject to the loophole was acrylamide, another friction-reducer, which appeared in 19 percent of the cases notified to the database. Its health effects include nervous-system impairments including muscle weakness, numbness in hands and feet and sweating, according to the CDC.

Benzene, which can cause cancer at high or prolonged exposures, was reported only 111 times but had one of the largest weights of the regulated chemicals, at 7.5 million pounds, according to the paper, titled “Outcomes of the Halliburton Loophole: Chemicals regulated by the Safe Drinking Water Act in U.S. Fracking Disclosures, 2014-2021.”

Other regulated chemicals identified by the study include naphthalene, formaldehyde, and 1,4 dioxane, which are variously linked to negative effects on the nervous, respiratory, urinary and gastrointestinal systems.

It also found that 19,700 disclosures report the regulated chemicals in masses that exceed quantities reportable under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), another federal law from the which the oil and gas industry is exempt.

The American Petroleum Institute, a fossil-fuel trade group, declined to comment on the study’s conclusions, but said it encourages its members to disclose chemicals used in fracking to the FracFocus database, as long as that disclosure does not conflict with the need to preserve trade secrets.

“API supports and promotes full disclosure of chemical ingredients intentionally added to hydraulic fracturing fluids, with recognition of claims for protection of intellectual property rights provided for under applicable state or federal laws and regulations. API encourages regulatory agencies with primary jurisdiction over oil and gas operations to incorporate use of the FracFocus Chemical Disclosure Registry in their regulatory frameworks,” the group said in a statement.

The Halliburton Loophole was inserted in the National Energy Policy Act in 2005. The company did not respond to a request for comment.

Vivian Underhill, a postdoctoral research fellow at Northeastern’s Social Science Environmental Health Research Institute, and the lead author of the study, said it appears to be the first to aggregate the regulated chemicals used by the fracking industry, based on self-reported data. Twenty-three states  require energy companies to enter details in the database.

“Because of the Halliburton Loophole and the fact that it exempts fracking from these reporting requirements, it makes it very difficult to understand how these chemicals are moving in the environment,” Underhill said. “It makes it more difficult to do a more in-depth exposure or toxicological assessment.”   

FracFocus itself is “remarkably opaque” because it lists the regulated fracking instances individually, and makes it hard to combine data to show trends in the quantities of chemicals used, and the frequency of their use, she said. 

Underhill and six other researchers were able to extract and aggregate the data using Open-FF, an independent project that uses open-source code to copy FracFocus data, clean it, and make it publicly available for systematic analysis. “Open FF is the best tool we have now to analyze the national data that FracFocus holds,” she said.

While the study advances knowledge about the use of regulated chemicals in fracking, it is subject to the limitations of FracFocus, whose use is voluntary in more than half of U.S. states; is subject to operators’ self-reporting that may even include typos; and includes many reports of chemicals that remain unidentified because companies have chosen to treat them as proprietary, Underhill said.

Further undermining the credibility of FracFocus is the fact that many of the entries inspected by the study team didn’t include enough information to allow them to calculate the mass of chemicals used. They excluded those entries, forcing the researchers to accept that they were under-counting the regulated chemicals used in fracking.

“What we have is actually an underestimate of how much was actually used,” Underhill said.

In Pennsylvania, the second-biggest natural-gas producing U.S. state after Texas, oil and gas companies are required to disclose to state officials the chemicals they used in fracking 30 days after completing a well. But the state, which is one of the 23 that require reporting to FracFocus, allows operators to designate proprietary chemicals whose identities will not be publicly released.

“An operator may designate portions of the stimulation record as containing trade secret or confidential proprietary information and the department shall prevent disclosure to the extent permitted by the Pennsylvania Right to Know Law or other applicable law,” said Neil Shader, a spokesman for the state’s Department of Environmental Protection. 

A growing number of studies have linked fracking to public-health impacts. They include one in the journal Environmental Health Perspectives, which said in August last year that Pennsylvania children living within two kilometers  of at least one unconventional natural gas well were almost twice as likely to get acute lymphoblastic leukemia, the most common form of childhood cancer, than those who did not live near a well.

Another paper published by Environmental Science and Technology last June found increased levels of methane and chlorides in groundwater in two regions of Pennsylvania where hydraulic fracturing overlaps with a history of coal mining.

Such studies provide increasing evidence of links between fracking and illness, but it’s not easy to prove them, because of gaps in the data, Underhill said.

“Chemicals that are often used in fracking often do show up in drinking water or soil, but putting together the causal links from one to the other is extremely difficult because of these absences of data that include the Halliburton Loophole,” she said.

The report recommended a repeal of the loophole, the creation of a federally mandated database containing disclosures of fracking chemicals and more research into the effects of fracking chemicals on human health and the environment. 

“Because regulatory exemptions have historically created these gaps in public health knowledge, it is vital to close these gaps through research and monitoring on fracking activity and its potential impacts on human and environmental health,” the report said.