Ohio law allows produced water pumped out of wells alongside oil and gas to be spread on roads to control ice or dust, but its sale and application are tracked and regulated. Now Senate Bill 171 and House Bill 282 would do away with those requirements for one company’s processed oil and gas byproduct.
Due to its high salt content, the produced water is often called brine, although it can contain heavy metals and naturally occurring radioactive materials, such as radium 226 and 228. Critics see both the proposed bills and current law as giving improper competitive advantages to the state’s fossil fuel industry.
The bills’ proposal is “literally a radioactive subsidy … that all Ohioans would pay for with our health,” said Rep. Casey Weinstein, D-Hudson. And in critics’ eyes, even current law lets companies more cheaply dispose of a byproduct without proper regard for health and environmental risks.
“You hear these oil and gas people say, ‘Oh, alternatives are too expensive,’” said John Stolz, director of Duquesne University’s Center for Environmental Research and Education. “The reality is: If they had to pay what they should be paying to deal with their messes, then we’re leveling the playing field.”
Ohio is one of several states that allows oil and gas wastewater to be spread on roads for de-icing or dust suppression, according to a July 2021 review by the Natural Resources Defense Council. The practice has been allowed for brine from conventional drilling wells since 1985, but not from fracked, horizontal wells, said Ohio Department of Natural Resources spokesperson Stephanie O’Grady.
Statutory provisions limit the times and conditions under which the material can go on roads. Among other things, it shouldn’t go on water-saturated surfaces, on plants, or within 12 feet of structures that cross ditches or water bodies. Other terms deal with the pressure, speed, nozzle opening and other details. Companies transporting and applying the brine generally must be registered or bonded. And places where brine is spread are tracked.
Nature’s Own Source, LLC, is the only Ohio company that currently stands to benefit from the pending bills. Customers for its processed AquaSalina de-icer have included the Ohio Department of Transportation, which used more than a million gallons of AquaSalina in 2018 and more than half a million in 2019, WKYC has reported. Those figures don’t include dozens of other local governments that have used it or untreated oil and gas brine on roads.
ODOT spokesperson Matt Bruning said the agency does not plan to buy more AquaSalina after using up its current stock. “We heard from folks that were concerned about this,” he said, but cost was a major consideration.
“Really, the thing for us is we can make our own product” by mixing rock salt and tap water, Bruning said. “It’s cheap. It’s effective. And we can make it as we need it. So we don’t have to store it.” When the pavement gets too cold for that mix, other additives are now available, such as calcium chloride, magnesium chloride and a refined beet product sold as Beet Heet, he added.
The legislation now under consideration would help to make AquaSalina more competitive with those other choices by treating its processed oil and gas wastewater brine as an unregulated commodity once it’s sold. The product could be sold to a wider range of customers, including over the counter in hardware stores without further regulatory oversight after someone buys it.
“HB 282/SB 171 does not ensure the protection of public health and safety or the environment,” Ohio Department of Natural Resources Director Mary Mertz wrote in a letter on June 22 to chairs of the legislative committees considering the bills. Once the material is sold, there would be no tracking of it. Nor would there be any requirements for registered brine haulers, or local government approval, she noted.
None of the primary sponsors of the bills responded to requests for comment. Nature’s Own Source President David Mansbery likewise has not returned calls for comment. Yet critics are still concerned that the bills have had three hearings in each house of the General Assembly.
A ‘hidden subsidy’
Even if the law isn’t changed, advocates worry about road spreading of both AquaSalina and other brine from untreated oil and gas wastewater.
“Oil and gas waste is toxic and radioactive,” said Shelly Corbin, the Beyond Dirty Fuels campaign representative for the Ohio Sierra Club. And the Department of Transportation’s decision will just eliminate one purchaser of AquaSalina, versus banning the use of brine on roads statewide, she noted.
Radium in brine spread on roads “will eventually build up in the soil. It will build up in creeks, in rivers. And its half-life is 1,600 years,” Corbin said. “When we’re all dead and gone, this stuff is going to be around for many, many, many generations.”
The Department of Natural Resources had already reduced the one-time brine hauler fee from $500 to $50 when previous versions of the bills were considered, Mertz’s letter stated, while leaving other regulatory protections in place.
Yet Mansbery’s testimony in May said his company would still face a competitive disadvantage in retail stores, compared to rock salt or other de-icer solutions. Materials attached to his testimony described AquaSalina as “ancient seawater trapped in rock [which] is brought to the surface with oil and gas production.”
Mansbery also is president of Duck Creek Energy, which drills, completes and operates oil and gas wells, as well as JDS Energy Systems, which purchases and markets natural gas. The website for Nature’s Own Source uses the same address as a baseball batting cage business, of which Mansbery was also a founder.
“This guy wants to sell his byproduct,” Weinstein said. “He doesn’t want to dispose of it the right way. He wants to be able to sell it and get more money.” But labeling AquaSalina as a commodity would prevent any regulatory agency “from being able to track it to know where it’s being put on the roads or measure its impact on the health of Ohioans,” he added. “So it would essentially put it into a black box.”
William Rish, an engineer and risk assessment consultant, also testified in favor of the bills, saying that “even if 10,000 gallons of AquaSalina was spilled on the ground, the health risks to an adult or child drinking from a nearby well would be insignificant and well below levels accepted by U.S. EPA and Ohio EPA.”
But that risk assessment was “not a study, not a long-term look,” said Roxanne Groff, a member of the Buckeye Environmental Network’s Ohio Brine Task Force. “Actually, there have been very few studies on the use of oil and gas brine on roads.”
“The bill is based on no science whatsoever,” Stolz said.
Under the proposed legislation, processed brine would qualify as a commodity even if it had up to 20,000 picocuries per liter of radium 226 and 2,500 picocuries per liter of radium 228. The combined limit under Ohio’s drinking water standards is 5. And the combined effluent limit for the two radium isotopes is 120 picocuries per liter, the Ohio Brine Task Force reports.
Although Mansbery’s testimony included a 2018 chart from the Ohio Department of Health on comparative radiation exposures, the types of radiation from various sources are different, Stolz noted. And a 2017 ODNR analysis on AquaSalina found it was above the limits allowed for discharging radium into the environment.
Moreover, as AquaSalina sits on a shelf or in a warehouse, it’s “getting hotter by the day,” Stolz said. “Because if you look at the decay pathway for radium 226, it decays to at least five other radioactive daughters, including radon, polonium and even radioactive lead.”
Radioactivity is a concern with waste from fracked, horizontal wells in shale formations. But it’s also an issue for conventional wells, Stolz said. In three studies published in 2019, he and others analyzed and compared brines from both types of oil and gas wells.
“We have to accept the fact that these brines from oil and gas waste are toxic, and they have to be treated appropriately,” Stolz said. “There are ways to treat this stuff, but it costs money.”
“It’s toxic radioactive waste that should never have come out of the ground in the first place,” Groff said. So, even if the bills on AquaSalina fail, “another step that needs to be taken is just changing Ohio law so we’re not allowed to use oil and gas brine at all,” and companies would have to pay to dispose of it, she said.
Otherwise, even with current regulatory oversight for using brine on roads, “it’s just basically externalizing the costs of disposal,” Stolz said. “It’s a hidden subsidy.”
Correction: The Ohio Department of Transportation uses calcium chloride for de-icing. A previous version of this story misstated the additive; also an earlier version of this story misspelled Matt Bruning’s last name.