Enviro Groups Mount Campaign to Ban Use of Oil and Gas Well Brine on State Roads for Deicing or Dust Control

ALBANY, Dec. 22, 2020 — A coalition of environmental groups is mounting a campaign for a statewide ban on the spreading of brine from oil and gas wells on roads for deicing or dust control.

At least 33 cities, towns and private entities in upstate New York have state permits to spread liquid waste from oil and gas operations, according to a study released this week by NYPIRG, Earthworks, Food & Water Watch and others.

“This practice is ongoing despite New York’s recently adopted law that closes a loophole that once exempted oil and gas waste from being classified as hazardous waste,” the groups said Friday. “Oil and gas waste is known to contain constituents that can make the waste toxic and radioactive.”

State rules allow road-spreading of brine on a case-by-case basis, as long as the brine does not originate from a Marcellus shale well. Spreading of other drilling fluids and flowback water is also explicitly banned.

The state Department of Environmental Conservation determines whether oil and gas brine has a “beneficial use” as a road deicer or dust suppressor. Since 1988, the DEC has issued 119 permits to spread brine across upstate, including the Finger Lakes.

The DEC has even permitted spreading in Erie County, despite the fact that Erie is one of 15 counties — along with New York City — that has categorically banned all fracking waste.

The environmental groups call for Gov. Andrew Cuomo and the DEC to “follow the lead of these counties and ban the (road-spreading) practice statewide,” the groups said in a press release that accompanied their study.

“Any waste generated through the extraction of oil or gas can contain a number of pollutants, such as toxic chemicals, metals, excess salts, and carcinogens like benzene and radioactive materials,” the groups said.

“Until testing of ‘brine’ wastewater includes analysis for radioactive materials, all spreading of oil and gas wastewater on roads in New York must cease,” said Melissa Troutman, research and policy analyst at Earthworks.

A DEC spokesperson said the agency was reviewing the study.

“Only production brine from conventional (non-hydrofracked) wells may be used on roads, and this use requires issuance of a case-specific beneficial use determination (BUD),” the DEC said Friday in a statement to WaterFront. “No material considered hazardous waste under DEC or federal rules can be approved under a BUD.”

Bills in the state Senate (S1858a) and Assembly (A596) would ban all oil and gas road-spreading.

They have support from Sen. Rachel May (D-Syracuse), sponsor of the recent bill that closed the loophole that had long exempted the oil and gas industry’s waste from being classified as hazardous.

“It is unconscionable to use harmful and potentially radioactive waste to treat icy roads, where it will then flow directly into our waterways,” Ray said. 

Typically, New York State relies on rock salt rather than brine to treat icy roads.

The state leads the nation in the spreading of rock salt, both in total tonnage and tons per mile of state-maintained road. That practice has led to sometimes dangerous levels of sodium and chloride in lakes, rivers and private water wells, studies in Adirondack Park have shown.

Gov. Cuomo recently signed into law a bill that establishes a task force to find ways to reduce the salting of roads. 

The DEC tightened its rules for applying brine to iced roads in 2017. Acknowledging that brine from the Marcellus shale formation is particularly prone to being radioactive, it banned the use of brine from Marcellus wells.

When the 2017 rule changes were proposed, some public commenters protested the Marcellus exclusion, while many others wanted the DEC to ban brine spreading entirely.

“The prohibition against use of production brine from the Marcellus Shale has no sound technical justification and is arbitrary,” one commenter wrote. “Furthermore, it will burden interstate commerce by preventing the use of production brine from other states in New York, a probable violation of the U.S Constitution Commerce Clause.” 

The DEC responded: “Marcellus Shale brine is known to contain naturally occurring radiological constituents, and is of poor quality for road treatment use due to the presence of excessive, non- beneficial mineral constituents.”

Others complained that brines from various sources were often commingled before being spread on roads, blurring the distinction between Marcellus and non-Marcellus waste. And even the distinction between fracked and conventional (non-hydrofracked) wells was questioned.

“There are no ‘beneficial’ uses for drilling waste, regardless of whether the wastes are from “conventional” or fracked wells,” the commenter said. “This waste contains toxic chemicals, metals, excess salts, and carcinogens like benzene and radioactive material.”

One commenter called the spreading oil and gas brine on roads “a subsidy for out-of-state drilling interests.” Another wrote that the meager 50-foot buffer between brine spreading and state waters “elevates the value of roads over wetlands and water bodies.”

The DEC responded that it retained the 50-foot buffer “in recognition that brine use of necessity takes place on roads that pass near or over bodies of water.”