Last year a study by researchers at Penn State found that a common practice in Ohio (and previously Pennsylvania) — the spreading of oil and gas wastewater on roads for ice and dust control — poses serious risks to human and environmental health. The study found that harmful pollutants contained in oil and gas wastewater (aka “brine”) spread on roads can leach into groundwater, surface waters, soils, and even become airborne, providing numerous pathways for human and environmental exposure.
The results of this study came just after a case we brought before the court in 2017 in which we represented a client who sued the Pennsylvania DEP over this practice. We argued that the DEP did not have the authority to permit this use of “wastewater”. Since then, Pennsylvania has put a temporary hold on all use of road brine. In addition numerous groups expressed outrage regarding elevated levels of Radium-226 & 228 (Ra-226 & Ra-228) present in a deicer product called AquaSalina that is spread on Ohio’s roads by the Ohio Department of Transportation and available for purchase at Lowe’s hardware stores. The outrage was triggered by the discovery of an Interoffice Memorandum between the Ohio Department of Health (ODH) to the Ohio Department of Natural Resources (ODNR) that includes test results demonstrating that AquaSalina on average contains radioactivity at levels exceeding federal drinking water standards for combined Ra-226 & Ra-228 by a factor of 300. The testing also showed radioactivity in AquaSalina exceeding Ohio’s discharge limits for Ra-226 & Ra-228 into the environment. Buckeye Environmental Network is currently suing Ohio Department of Natural Resources for its failure to disclose these records earlier.
Ra-226 can enter the body if it is ingested or inhaled by consuming drinking water, by inhaling dried sediments, or by consuming plants or animals where it has accumulated. Long-term internal exposure to radium increases the risk of developing bone and other cancers that may not be realized until many years after exposure begins. Ra-226 is water-soluble and highly mobile in the environment, it is bioaccumulative, and persists in the environment for an extraordinarily long time because of its half-life of 1,600 years.
AquaSalina consists of processed waste from oil and gas production (unprocessed oil and gas liquid waste is also currently spread on Ohio's roads as a deicer and dust suppressant). Oil and gas waste-streams are well documented to contain elevated concentrations of Ra-226 & Ra-228, so the ODH test results are not necessarily surprising given AquaSalina 's origin. What may be surprising to many Ohioans is the way the spreading of oil and gas wastewater on roads is regulated in Ohio. After all, what is sprayed on our roads is of course never just about the roads. Children play in neighborhood streets, toddlers walk through parking lots with their faces at wheel-level, mechanics work on hundreds of cars each winter week, gardeners kneel at their roadside beds and kick up dust and dirt as they work. What’s sprayed on our roads can make it into people’s lives and people’s bodies through many routes.
This post explores four questions pertaining to the spreading of oil and gas wastewater on Ohio's and Pennsylvania’s roads:
1. What is currently sprayed on Ohio’s roads?
State and local actors currently spread untreated brine from vertical oil and gas wells on Ohio’s roads as a deicer and dust suppressant. R.C. 1509.22 specifically identifies surface application to roads in accordance with R.C. 1509.226 as one of three ways that brine can be disposed of in Ohio. R.C. 1509.226 sets forth a process by which local governments can decide to allow the spreading of brine on the roads they own or control, and states that State actors may apply brine to those roads and similar surfaces under their control. While R.C. 1509.226 states that “only brine that is produced from a well that is not a horizontal well” may be spread on a road, it is common knowledge that vertical wells may be hydraulically fractured, and it is unclear to what extent ODNR does any actual verification regarding this requirement. Furthermore, the results regarding Ra-226 and Ra-228 in AquaSalina, suggest that brine from vertical wells can also have high radium content.
Data obtained from ODNR for brine from oil and gas production, demonstrates brine spread on Ohio’s roads includes numerous substances known to be harmful to human health and the environment, including: radium, arsenic, lead, selenium, benzene, boron, toluene, xylene, hexane, ethylbenzene, trimethylbenzene, butanone, acetone, methylacetate, isopropylbenzene, and other volatile organic compounds.
2. What is currently sprayed on Pennsylvania’s roads?
At the time of this article there are no cases of untreated brine from vertical and gas wells on Pennsylvania’s roads. But there are currently measures underway to change that. Last year Senate Bill 1088 was drafted and in that draft there is a section which would recategorize brine into two groups - “conventional” and “unconventional” - and relax regulation on all brines categorized as “conventional.” There is no known difference between chemicals present in either of these categories, therefore brine from conventional wells can also have high radium content.
3. Is brine road spreading legal?
Neither Ohio’s or Pennsylvania’s legislature, local governments, nor the Ohio Department of Natural Resources or the Pennsylvania Department of Environmental Protection can regulate away federal environmental standards. Complaints discovered during a review of public records from the Ohio EPA suggest that untreated brine spread on Ohio’s roads has contaminated Ohio’s surface waters. If the brine spreading results in the discharge of a pollutant into a water of the United States (remember all of these terms are very broadly defined under current law) without a permit to do so, then that discharge is in violation of the federal Clean Water Act. Likewise, if the brine spreading is causing personal injury, property damage, or creating a nuisance, there may be remedies available under the common law to address these wrongs.
4. What’s going on with HB 393 and SB 165 (the so-called "brine" bills) in the Ohio legislature?
Currently, under R.C. 1509.22, no one may store, recycle, treat, process, or dispose of brine or other wastes associated with oil and gas resources, without an order or permit from ODNR. Such a permit or order contains certain requirements for how the operator must handle the brine. R.C. 1509.22 in and of itself also contains certain minimal requirements regarding brine. One of these requirements prohibits anyone from discharging brine or other fluids associated with oil and gas resources into ground water, surface water, or land in a manner that “could reasonably be anticipated to cause damage or injury to public health or safety or the environment.”
HB 393 and SB 165 would exempt any brine that is not from a horizontal well that is processed or recycled to remove free oil, dissolved volatile organic compounds, and other contaminants in accordance with a permit, order, or other approval issued by ODNR under R.C. 1509.22 or 1509.227 from any provision of the Ohio Revised Code once the operator provides ODNR with one of three documents:
(1) Documentation that the Department of Transportation has approved the brine product for deicing and snow control;
(2) Documentation that the commodity is listed on the most recent pacific northwest snow fighters qualified products list; or
(3) “Documentation from a private certification entity approved by the department of transportation.”
HB 393 and SB 165 state that the submission of any of these three types of documentation is sufficient to demonstrate that the brine product “is not expected to result in damage or injury to public health, safety or the environment” and to exempt the brine product from being regulated as brine under the Ohio Revised Code. Importantly, none of the bills' listed documentation options requires any analysis of the product for Ra-226 & Ra-228 or many of the other contaminants known to be present in oil and gas wastewater that are also known to pose a threat to human health and the environment. Thus, HB 393 and SB 165 seek to exempt brine products from the provisions of the Ohio Revised Code explicitly pertaining to brine without requiring any real demonstration that those products do not pose a threat to human health, safety, and the environment. And they do this when State agencies are well aware that these products contain radium at levels of concern to public health and the environment.
HB 393 and SB 165 also go further and prohibit ODNR from adding additional rules, policies, or procedures to govern brine products that have met this minimal documentation requirement. The bills also explicitly prohibit ODNR from collecting more than four samples annually from a person selling a brine product that has met the documentation requirement.