Part I of a two-part story. Read Part II here.

A fracking waste product is being spread on roads in western New York, prompting a growing number of counties to outlaw the practice, and sparking a call for a state-wide ban.

The state argues that the practice has been carried out safely for years, and should not be associated with high-volume hydrofracking activities carried out in other parts of the country.

Why the concern? The waste, known as “produced water” or “production brine,” is naturally occurring, but contains heavy metals, traces of volatile compounds, and other contaminants. It is being sprayed by local municipalities—with state approval—on roads to melt ice and control dust.

Of equal concern is the fact that the state has acknowledged that they are not tracking how much produced water is being spread on roads.

[“Produced water” should not be confused with the mix of water and chemicals that is forced down wells at high pressure to fracture shale formations and release gas. Some of that water-chemical mix, “flowback,” returns to the surface and is a different type of fracking waste.]

Lawmakers and environmental groups maintain that despite state guidelines for the spraying, there is always the risk that produced water can drain from roads into wetlands, agricultural fields and surface water supplies, or even become airborne. Some of the volatile compounds found in produced water—like benzene—are carcinogenic.

“Something that is well-known and has been documented…to potentially contain a carcinogen should not be spread on our roadways,” said Kate Hudson, the Watershed Program Director for Hudson Riverkeeper.

Produced water can also contain naturally occurring radioactive materials, depending on the shale formation from which it is released.

Allowed “For Decades”

Department of Environmental Conservation spokeswoman Charsleissa King said that the state had been permitting the use of produced water as a road de-icer and dust stabilizer “for decades,” but had established its current method of regulating the activity in 2009.

The DEC, the state’s lead environmental agency, says that a primary objective is “to ensure that the environmental impact of resource extraction will be mitigated to the greatest extent possible.”

“The DEC reviews the use of brine…on a case-by-case basis to avoid environmental impacts to sensitive locations such as state forest areas, wetlands and surface water bodies,” King added.

NYER asked the DEC if they had done any follow-up testing on the effects of spreading produced water in the past, and whether the frequency of the practice has changed. We have not yet received a response.

A Special Exemption

Despite the fact that produced water is considered a fracking waste product, the state has regulatory authority, through issuance of “Beneficial Use Determinations,” to allow its re-use as a road “stabilizer” and “de-icer.”

Lawmakers say that the only reason why produced water can be re-used is because of a loophole favoring the oil and gas industry.

“Although this waste is hazardous and in fact exceeds the legal criteria for hazardous waste classification, it is categorized as ‘industrial’ under federal and state laws as a result of special exemptions given to the oil and gas industry,” note the authors of a pending bill that would ban its use across New York.

“These exemptions eliminate tracking requirements for its handling, storage, treatment and disposal,” concluded State Senators Terry Gipson, Martin Dilan, George Latimer, John Sampson, and Cecilia Tkaczyk, all Democrats.

From the Finger Lakes to Lake Erie

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While the DEC told NYER that, “generally, [state] approvals [for the spreading of produced water] do not require volume reporting,” it is possible to get a sense of who is seeking permission for the practice and why.

Over a two-year period, from June 2011 to July 2013, road spreading of produced water was approved in over 30 municipalities, spanning twelve New York State counties, according to documents obtained from the DEC by Hudson Riverkeeper.

The produced water came from both oil and gas wells, and natural gas storage. National Fuel Gas, a gas extraction, delivery, and utility company active in western New York and Pennsylvania, supplied produced water to several of the applicants to the DEC.

Applicants for a “Beneficial Use Determination” from the DEC ranged from drilling and construction companies to individual towns to the state’s Department of Transportation. According to correspondence between the applicants and the DEC, the produced water was to be used for road stabilization, dust control, and de-icing.

The DEC issued BUDs for road spreading of produced water from wells and/or natural gas storage in sections of Wyoming, Erie, Cattaraugus, Chautauqua, Genessee, Niagrara, Steuben, Allegany, Chemung, Schuyler, Yates, and Seneca, which is in the heart of the Finger Lakes.

Details on the amount of produced water to be used appeared sporadically in the four-hundred plus pages of documents, and varied widely. As an example, the state’s Department of Transportation noted that it had used 1.3 million gallons of produced water for de-icing in Chautauqua County between 2010 and 2011.

More than one municipality said that they wished to use produced water as a de-icer because it was a cheaper alternative to salt. “Brine is free to the town and constitutes a great savings to taxpayers,” stated the highway superintendent from the town of Gerry in Chautauqua.

The Dilemma: What to do with the state’s drilling waste?

The state reports that there are currently about 14,000 oil, gas and solution salt mining wells in New York. And the extraction of oil and gas “contributes half a billion dollars to the state’s economy each year,” says the state DEC.

While high-volume hydraulic fracturing is currently subject to a moratorium in New York State, low-volume natural gas fracking, which uses less fresh water, continues.

Drillers—and the state—must find ways to dispose of two distinct liquid fracking wastes.

“Flowback,” the portion of the water-chemical mix used in fracking that returns to the surface, cannot be applied on roads. The state requires that it “must be disposed of at [wastewater treatment] facilities authorized by the Department [of Environmental Conservation] or transported for use or re-use at other gas or oil wells where acceptable…”

Nine New York State counties—Westchester, Putnam, Rockland, Albany, Erie, Onondaga, Orange, Suffolk and Nassau—have now banned all types of fracking waste from local wastewater treatment plants.

“Produced water” or brine, is released by the fracturing of the shale itself. This underground fluid has an extremely high salt content because the shale formations under western New York were formed by deposits from an ancient ocean.

Produced water contains naturally occurring contaminants, such as heavy and/or toxic metals like arsenic, lead and mercury, along with radioactive materials, depending on the shale formation. The state will not permit road spreading of produced water from the Marcellus Shale, for example, without further testing, presumably because of concerns about radioactivity.

Produced water also contains traces of a cluster of volatile organic compounds, known as “BTEX,” benzene, toluene, ethylbenzene, and xylene, which are found in petroleum products. At least one of these compounds, benzene, is a known human carcinogen.

The state has acknowledged the presence of benzene and toluene, a substance currently under study for its impact on the human endocrinal system, in produced water. DEC spokeswoman, Charsleissa King, told NYER that the agency’s standards for acceptable levels of the two volatile compounds are “consistent with those used in Pennsylvania, Michigan and West Virginia.”

Local Governments Take Action

It is not totally clear, if the road spreading of produced water has been permitted for decades, why there is such an outcry about the practice now. But it is undeniable that the state as a whole is far more aware of drilling activity because of the possibility that high-volume fracking could be permitted in New York.

At least 12 counties have moved to ban the spreading of produced water on local roads, including Westchester, Putnam, Rockland, Albany, Erie, Onondaga, Orange, Suffolk, Ulster, Oneida, Tomkins, and Orange.

Erie County Executive, Mark Poloncarz, reportedly stated that he could not “discount the overwhelming support of such a ban by the public and members of the Legislature—Democrat, Republican, and Independent.”

And a group of state legislators, led by Senator Terry Gipson of Dutchess County, have introduced legislation that would enact a state-wide ban on the application of fracking waste to roads.

Gipson’s Communications Director, Jonathan Heppner, noted that the Senator’s district was heavily agricultural. A section of Dutchess County also lies within the New York City watershed, and the county contains other significant watersheds.

Heppner said that Senator Gipson was deeply concerned about “even the possibility that [chemical compounds in fracking waste] could run into farmers’ fields or the watershed.”


Emily Manley helped to edit this story and produced the graphics.

Part II: more on the potential public health impacts of environmental exposure to volatile organic compounds; more questions for the state regarding its Beneficial Use Determinations; and why the drilling industry argues re-use of produced water is beneficial for the environment.