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

Written by Sarah Crean and edited with Emily Manley

Author’s note: we have added more clarification to our discussion of volatile organic compounds and why they can be found in drilling waste.

As we reported recently, a fracking waste product is being spread on roads in western New York—with state approval—to melt ice and control dust.

The uproar over the issue—twelve counties have banned road spreading of “produced water,” and legislation outlawing the practice has been introduced in the State Senate—underscores New York’s economic and social divisions.

Re-use of produced water on local roads is occurring in shale-rich western New York, where oil and gas drilling has been a part of the local economy for over a century. The industry operates in mainly rural counties, such as Allegany and Chautauqua, that often have high poverty rates, a need for economic development, and municipalities struggling to provide basic services.

The counties that have banned road spreading—excluding Erie County—all lie to the east. In the broadest terms, they tend to have more affluence and economic diversity, particularly counties closest to New York City, like Westchester, Putnam and Suffolk.

How To Dispose of Waste?

In order to function, the oil and gas industry needs ways to dispose of waste generated by extraction activities. Enter the state Department of Environmental Conservation (DEC), who is tasked with overseeing this industry, and whose mission is both to protect the state’s environmental health and promote economic development.

It is a complicated dance for one agency, as evidenced by the DEC’s approach to road spreading of produced water.

Released from shale formations by oil and gas drilling, produced water- or “production brine”- is considered an industrial waste product. While the liquid is high in salinity, it also contains heavy and/or toxic metals, traces of volatile compounds, and other contaminants. At least one of the compounds, benzene, is a known human carcinogen.

Since it’s industrial waste, state law requires that produced water be re-used in a way that “will not adversely affect human health and safety, the environment, and natural resources.”

Moreover, before produced water can be spread on roads by a municipality or private company, approval in the form of a “Beneficial Use Determination” (BUD) must be obtained from the state DEC.

A Confusing Mix of Standards

However, email exchanges with the state, along with a review of thirty BUDs issued between 2011 and 2013, revealed what appears to be a confusing mix of standards.

The approvals, obtained from the DEC by Riverkeeper and issued for sections of 12 counties, raise questions regarding the proximity of spraying to drinking water sources, the toxicity levels of the fluid used, and what the cumulative impact of years of application could be.

The DEC stressed that it evaluates the use of produced water on roads “on a case-by-case basis.”

DEC spokeswoman Charsleissa King told NYER that the agency “determines acceptable levels of these substances [like volatile organic compounds, which are found in produced water] depending on a number of factors including the number of applications, separation distances to groundwater sources, etc.”

Based on regulations it established, it appears that the DEC wants to monitor usage of produced water and control run-off into fields, wetlands, and other sensitive areas.

But it remains unclear how they ensure that local municipalities and highway departments follow state guidelines, and whether the guidelines themselves are sufficient.

Proximity to Water Sources

The BUDs released by the DEC typically show little to no detail regarding the proximity of road spreading activity to local ground and surface water sources.

In some cases, applicants submitted maps showing the location of spraying sites in relation to areas like wetlands. In others, there are no maps or the maps lack detail, and there is minimal discussion of local conditions.

In the cases of spreading for dust control, BUD applicants were asked to provide a letter attesting that they would not apply produced water “within 50 ft of a stream, creek, lake or other body of water; on sections of road having a grade exceeding 10 percent; or on wet roads, during rain, or when rain is imminent.”

Similarly, in its de-icing approvals, the DEC states that applicants must spray produced water “in a manner that prevents brine from flowing or running off into streams, creeks, lakes and other bodies of water.” It also refers applicants to the state Department of Transportation’s ice control regulations, which do not appear to address the question of run-off.

Why The Concern

Arguably the most straightforward way for contaminants to find their way to humans would be via surface and ground water that feeds drinking water reservoirs.

And it is not just a theoretical problem.

A 2005-07 study of Rockland County’s water supply by the U.S. Geological Survey found that, “application of road deicing salt(s) in the winter since the 1950s and 1960s, with subsequent downward leaching to groundwater, has resulted in major increases in chloride…in groundwater across much of the aquifer.”

It is possible that the BUDs obtained by Riverkeeper were incomplete and the state has actually done more analysis of water source locations. So far, the DEC has not responded to any of our follow-up questions.

Chemical testing of samples from the source of produced water—oil and gas wells, or gas storage—is also required for BUD approval. These tests are conducted by private labs and the results are submitted to the DEC by applicants.

Test results of produced water show the presence of trace amounts of the BTEX volatile organic cluster: benzene, toluene, ethyl benzene, and xylene. Also appearing are heavy and/or toxic metals such as arsenic, mercury and lead; oil and grease; and high levels of chloride.

Why does the state look at the BTEX cluster? According to the American Cancer Society, benzene is linked to cancers impacting blood cells, such as leukemia. Toluene is currently under review by both the federal Environmental Protection Agency (EPA) and the National Institutes of Health because of its potential impact on the human endocrinal system.

The EPA notes, “because it is a liquid that does not bind well to soil, toluene that makes its way into the ground can move through the ground and enter groundwater.”

Testing for Toxicity

The DEC told NYER that it currently uses the following standards for produced water for road uses: 0.5 milligrams/liter for benzene and 1.0 milligrams/liter each for toluene, ethylbenzene, and xylene. The DEC also told us that these standards are similar to those used by states like West Virginia and Pennsylvania.

West Virginia provides a clear, public list of “allowable levels” for a variety of potentially hazardous substances found in produced water sprayed on roads. We cannot find similar public standards in New York and asked the DEC about this, but they have not responded.

King explained that, “in some cases, the benzene content is allowed to be greater than 0.5 if the number of applications is limited. Benzene is volatile and is reduced significantly during storage, and application and has not been found to migrate to groundwater resources.”

We asked the DEC, in what locations would it be acceptable to spread produced water containing benzene and toluene, and in what locations would it not? And how does this standard relate to the numerical standards for benzene and toluene stated above?

It is important to note that included in the BUDs from the DEC was a rejection, issued because the agency determined that the level of BTEX contaminants in one application was too high (page 458).

In another case, the DEC authorized the use of produced water with a benzene level of 1.73 milligrams/liter and a toluene level of 1.77 milligrams/liter (page 89). This appears to be more than three times the benzene standard and nearly twice the toluene standard put forward by the state.

While the BUD was issued in 2011, the test results were from 2008. Additional testing was done in 2011, but not for benzene and toluene. State law does require the establishment of “procedures for periodic testing” of waste to be re-used but it is unclear what the procedure was here.

NYER followed up with the DEC, asking how the determination to approve the BUD was made in this case. They have not yet responded.

Cumulative Impact?

The state DEC told NYER that produced water has been used on roads in New York State “for decades” and that “generally, approvals do not require volume reporting.”

If produced water is used for de-icing, as opposed to dust control, however, it does appear from approval documents that the state requests an annual report on total number of gallons applied. Some of the BUDS contained this information, and others did not.

BUD approvals for dust control typically allowed between ten and twenty applications of produced water on roads. One applicant described a spraying rate of 2,000 gallons per mile.

NYER asked the DEC if they had done any follow-up testing on the effects of road spreading approved in the past, and whether they viewed the cumulative impact of applying produced water to roads as a concern.

They have not responded.

Martin Stute, a professor of environmental science at Barnard College and a scientist in the geo-chemistry division of Columbia University’s Lamont-Doherty Earth Observatory observed that the movement of volatile organic compounds and “other [chemical] constituents”, from roads to surface waters that feed drinking water aquifers, was highly dependent on a number of factors, especially rainfall and proximity of water sources to roads.

Stute maintained that non-volatile compounds, such as mercury, “would more readily make it into water bodies”.

But, Stute argued, if volatile organic compounds like benzene and other contaminants were not “massively diluted” once they entered surface water sources, they could eventually reach hazardous levels. “No doubt about it,” he said.

Another factor was time, Stute noted. “Contaminants from the spreading of produced water, if applied over many years, could build up in groundwater,” he reiterated in a follow-up email. “Chloride concentrations [in drinking water supplies], for example, have increased significantly in parts of New York State as a result of roadsalt applications.”

One Sample, Multiple Wells

The DEC did not pass on lab results for a handful of the thirty BUDs issued between 2011 and 2013. Again, these tests may very well exist but, until they are released, nothing is known about what was spread on roads covered by these approvals.

At least ten of the BUDs appear to rely on only one set of test results from a sample provided by National Fuel Gas, a gas extraction, delivery, and utility company active in Western New York and Pennsylvania.

Groups like Riverkeeper have argued that the state’s practice of issuing a BUD based on a sample from one well in a gas field, when produced water from multiple wells may be involved, is inconclusive and potentially dangerous.

Stute agreed. “These substances [volatile organic compounds such as benzene and toluene, and other dissolved compounds] have a lot of variability,” he said.

“There is no way that the concentrations can all be the same,” he added.

“Produced Water” vs “Fracking Fluid”: a semantic debate with consequences

The state DEC views these volatile organic compounds as essentially naturally occurring, which helps the state justify their re-use on roads. King told NYER that, “benzene and toluene are naturally present in petroleum which is in contact with water in the ground. When the oil is pumped to the surface, the water comes with it containing dissolved traces of these volatile constituents.”

Stute said this was accurate, but added that benzene and toluene “are still hazardous”.

Stute noted that benzene and toluene could be found in both petroleum, and in fluids used for drilling. “If they are present in production water, it means that the hydrocarbon products were not properly separated,” he explained. And he pointed out that this separation process was “not easy”.

All of this ties into a broader dispute regarding the distinction drawn bythe DEC between “produced water” and spent fracking fluid, the water-chemical mix used to fracture shale. The portion of the spent drilling fluid which returns to the surface is known as “flowback.”

Some environmental groups argue that the distinction is questionable because both waste products come out of the same well; flowback rises first, and is followed by produced water. Prior to 2009, New York State permitted road spreading of flowback. The practice is now forbidden.

These questions are all part of a much larger puzzle said Katherine Nadeau, policy director for Environmental Advocates, a watchdog group based in Albany.

The fundamental issue, Nadeau said, was “how the state requires drillers of oil and gas wells to dispose of the waste that they’re producing.”