Rural N.Y. Communities Use Fracking Waste to De-Ice Roads; Saying AquaSalina deicer “is” frac water instead of “contains” frac water leads to Duck Creek’s court win against Ohio women

Rural N.Y. Communities Use Fracking Waste to De-Ice Roads by Scott Martelle, December 9, 2013,
What the hell are they thinking? Several rural communities and counties in New York have received permission from state regulators—despite a state fracking moratorium and a warning from the U.S. Environmental Protection Agency—to spread fracking waste brine on roads as a de-icer. Environmental group Riverkeeper, which focuses on the health of the Hudson River, warns that the liquid can move into watersheds, a concern that led nine other counties in the state to ban the practice. And remember, this is mystery juice. The natural gas industry…has kept the chemical makeup of the fluid a closely held industrial secret. So no one outside the industry really knows what those local snow-and-ice crews are spraying on the roadways. According to Capital New York, Riverkeeper scientist Bill Wegner sees disaster looming: “The biggest concern is the carcinogens; you don’t want that to get into drinking water supplies,” Wegner said.

Production brine largely comes from some of the 6,000 low-volume gas wells currently allowed in New York as well as some in Pennsylvania, and is used for de-icing, dust control and road stabilization. The fluid can pollute rivers, streams and aquifers if not controlled properly, and it contains high levels of chloride, benzene and toluene, all of which can cause health problems in humans, Wegner said. It can also contain naturally-occuring radioactive materials. And while chloride is contained in the road salt commonly used across the country, it is far more concentrated in fracking waste. … Private businesses in western New York requested the fluid, which is free or cheaper than traditional methods, as did the towns of Genesee and Dunkirk, and the state Department of Transportation in Chautauqua County. In 2007, a federal report on a fracking juice spill in Kentucky resulted in a fish kill, and many fish that survived “developed gill lesions, liver damage and spleen damage,” RT News reported when the reports came out in August. … Surviving fish exposed to the chemicals developed gill lesions and suffered from liver and spleen damage, the study found. These symptoms mirror those experienced by fish exposed to acidic water and toxic concentrations of heavy metals, the USGS reports. The fracturing fluids dropped the creek’s pH levels from 7.5 to 5.6 and increased stream conductivity from 200 to 35,000 microsiemens per centimeter.

Another study found elevated levels of radioactive material in watersheds downstream from emission points. So, what could possibly go wrong with spreading some on a snowy country road? [Emphasis added]

Calling a deicer ‘toxic’ leads to heated exchanges, Duck Creek’s court win against Broadview Heights women who oppose fracking could be an influential case study for industry by Dan Shingler, December 1, 2013,
Duck Creek won a judgment against the two women following a defamation lawsuit the company filed because it said the two were making false and defamatory statements about its product, a road deicer known as AquaSalina. AquaSalina is made from brine that comes up from conventional oil and gas wells — traditional vertical wells [But, were/are any of these verticals wells frac’d? Many vertical wells are unconventional and frac’d, some repeatedly], not horizontal shale wells. AquaSalina only contains brine from wells that have been in production for a year or more, said Duck Creek president David Mansbery. … In early 2012, Duck Creek found that Ms. Aini and Ms. O’Dell, who oppose fracking, were telling local municipalities and others that AquaSalina was “toxic … fracking water” and were asking them not to use the product as a deicer, according to court documents. Mr. Mansbery said he wrote to the women asking them to stop making the statements, explaining to them the type of water used in AquaSalina and how it differed from fracking water. When they refused to stop their communications after multiple requests, Mr. Mansbery felt he had no choice but to file a defamation suit against the pair, he recently told Crain’s.

It depends on what “is’ is
The matter was settled Sept. 13 after Cuyahoga County Common Pleas Court Judge Joan Synenberg ruled partly in Duck Creek’s favor — though her ruling did not find that everything the women said was false. For example, as experts told the court in depositions, no one knows how much fracking water comes back as flowback over the long-term life of a well after some of the fracking water has mixed with the existing brine beneath the ground. The court cited the difference, saying the product “contains” fracking water as opposed to saying it “is” fracking water. Statements the women made that AquaSalina is “toxic” or that it contains harmful levels of benzene also did not result in a judgment against them, in part because the court said those were matters of opinion. But the court did rule that the women were wrong to tell others that AquaSalina is fracking water, and that they made statements they knew or should have known were false. It found the women sent emails and that “statements that AquaSalina is “frac water’ or a by-product thereof were published with actual malice.”

The two women are barred from discussing the case in detail, according to Ms. Aini, who spoke to Crain’s briefly by telephone. They also are barred from saying that AquaSalina is toxic, carcinogenic, poisonous or radioactive, according to court documents.

That silence might be the biggest effect of the case, beyond its effects on Duck Creek and Ms. Aini and Ms. O’Dell.

Silencing the critics

In a counterclaim filed by the two women, they maintained the defamation suit against them was brought basically to shut them up and keep them from exercising their First Amendment rights on issues concerning oil and gas drilling in residential neighborhoods. In addition to campaigning against AquaSalina, Ms. Aini and Ms. O’Dell are members of the group Mothers Against Drilling in Our Neighborhoods, which is active in several Northeast Ohio suburbs and opposes oil and gas drilling in residential neighborhoods. However, the court found Duck Creek legitimately was protecting itself by bringing the suit. Mr. Mansbery had tried to settle the matter without litigation, said his attorney. “The defendants circulated emails which called AquaSalina “frac water.’ Mr. Mansbery sent an email to Ms. O’Dell which explained why AquaSalina was not “frac water’ and he demanded that she issue a retraction. She refused. Duck Creek filed the lawsuit because the defendants left it with no other choice,” said Robert Zimmerman, an attorney with Benesch who represented Duck Creek.

Many members of Ohio’s oil and gas industry have been more than happy to talk about the case, and the Ohio Oil and Gas Association sent out a press release about the case as recently as Nov. 12. “It is refreshing to see a company fight back against defamatory remarks regarding the industry,” said Shawn Bennett, director of the industry public relations arm Energy in Depth Ohio. Rhonda Reda, director of the industry’s Ohio Oil and Gas Energy Education Program, agreed. “We are thrilled to have the courts penalize individuals who spread false and malicious information about the industry,” Ms. Reda said.

Now that the case is over, Duck Creek will focus on growing the business for AquaSalina. So far, the product only is used in a few Northeast Ohio communities, Mr. Mansbery said. But he thinks it will begin gaining in acceptance, in part because it has been approved for use by the Ohio Department of Natural Resources, which requires that the water be tested annually for safety. Perhaps more importantly, in October AquaSalina was approved for use by the Pacific Northwest Snowfighters Association, which tests products on behalf of 26 state departments of transportation across the northern United States. [Emphasis added]

[Refer also to:

What to do with all the oil field dregs, some of it radioactive, some of it toxic, and there’s more and more of it ]

This entry was posted in Global Frac News, Other Legal. Bookmark the permalink.