by Karl Coplan

The New York Times’ excellent series on the environmental issues associated with hydrofracking exposes a long-exploited loophole in the regulation of industrial wastes. As the Times article points out in the case of fracking fluids, these wastes are routinely dumped into publicly owned sewage treatment plants (POTWs). Since sewage treatment plants are not usually designed to treat these wastes, these hazardous wastes may “pass through,” untreated, into waterways used for drinking water, swimming, and fishing. In the case of recovered fracking fluids, these untreated pollutants include benzene and radioactive materials.

In theory, each POTW is supposed to have a set of industrial pretreatment regulations that prevent “pass through” of pollutants. The industrial pretreatment program is approved for each POTW at the time their own discharge permit is issued under the Clean Water Act’s National Pollutant Discharge Elimination System permitting program.

In practice, the pretreatment program for a given POTW may not contemplate the sorts of wastes delivered by new dischargers such as natural gas hydrofracking operations, and may not limit the problematic wastes at issue. The underlying POTW permit similarly may not limit these wastes, since they would not have been in the waste stream at the time the permit was issued. The POTW is usually not required to test for these parameters, either.

While Clean Water Act section 307, and the EPA regulations prohibit “pass through” of pollutants, “pass through” is defined as pollutant discharges that cause a violation of the POTW’s own permit limits. If the POTW’s permit does not limit pollutants such as radium or benzene in the first place, then there can be no “pass through” violation. The POTW’s rely on the permit shield as protection from enforcement, and avoid testing for the new chemicals in their effluent. Hence the potential loophole.

Ideally, POTW permits should be modified when they allow significant new industrial discharges with different kinds of wastes to dump effluents into their headworks. In practice, POTW permits can go for decades without substantive review — these so-called “zombie permits” exist because overwhelmed state permitting agencies “administratively renew” many POTW permits, without any substantive review, at the end of their five year term. So the POTW discharges new, untreated waste streams under an obsolete permit, at least until a citizens group can convince the agency to review the permit. Establishing the deficiency in the existing permit may require expensive testing of POTW effluents — not something that citizens groups can usually afford.

This is not just a problem with fracking fluids. More than a few hazardous waste landfills in our area have relied on remediation plans that consist of collecting leachate and pumping it to the nearest POTW, where it is diluted rather than treated, and then discharged to waters. Thus, wastestreams that would be absolute violations of the Clean Water Act if discharged directly are routinely discharged indirectly and untreated through POTWs, often to the same waterbodies the contamination was leaching into before the “remediation.”