The finalized rules issued by the Delaware River Basin Commission (DRBC) for the treatment of fracking wastewater in the river basin, and the export of water for fracking elsewhere, leave numerous loopholes that still allow for contamination. Since such wastewater is known to contain both radioactivity and so-called “forever chemicals” recently deemed by the EPA to be dangerous to health at any concentration, such contamination would be effectively irreversible.

 Some loophole examples: 

1. The rules do not categorically prohibit the transfer of HVHF (high-volume hydraulic fracturing) wastewater into the basin as long as no resulting discharge is proposed. But that still means that wastewater can be brought into the Delaware River Basin, as long as forms are filled out to DRBC’s requirements. Since the water is not discharged, where and how will it be kept or used? Who will check up on such operations and verify whether there are leaks, spills, or even intentional illegal discharge? Most such import can be expected to occur in Pennsylvania, whose Department of Environmental Protection’s acronym, DEP, is known by the many victims of fracking pollution in the state to stand for “Don’t Expect Protection.” 

2. It is presumably to address this problem that DRBC rules do prohibit “spills and leaks during transport, transfer or storage of HVHF wastewater within the Basin if not fully captured by a containment system in place throughout the duration of the spill or leak and thereafter promptly removed or remediated.” But what happens when a leak or spill occurs in an unexpected place—as most do—so that no containment system has been constructed? What happens when the containment system itself leaks? What does “promptly removed or remediated” mean? Removed to where? And how do you remediate contamination when you don’t even know what toxins are in the wastewater, or what to test for, given the industry’s many exemptions from disclosure? 

3.  Although there is a prohibition of discharge of leachate from any landfill in the basin that accepts HVHF waste, including after treatment, landfills can still accept HVHF waste after these regulations go into effect. That means accidents related to transport, spills and leaks can and will take place, as no doubt will illegal dumping. And just as important: once the landfills have the waste, how is prohibition of discharge going to be enforced, given the chronic lack of funding and personnel at DRBC? 

 One need only refer to the sorry history of the Westmoreland Landfill in southwestern PA to understand how intractable the problem of disposing of HVHF-waste contaminated leachate is. Its leachate-transfer operation was shut down by a court after so toxifying a municipal sewage operation that it killed the bacteria processing the sewage, meaning the sewage facility was discharging not only fracking toxins but undigested sewage into the Monongahela River. The only proposal for getting rid of the leachate that Westmoreland could come up with was a proposal to “mist off” its leachate—in other words, disperse poisons through the air--which the PA DEP actually approved.

 Is that coming next for the Delaware? Take a deep breath while you still can. The DRBC says it doesn’t have the authority to regulate air pollution.

 Barbara Arrindell is the director of Damascus Citizens for Sustainability in Narrowsburg, NY.