“No one is enforcing the moratorium.”

This story was originally published by Grist and is reproduced here as part of the Climate Desk collaboration.

Siri Lawson and her husband live on a stamp of wooded, hilly land in Warren County, Pennsylvania, nestled in the state’s rural northwest corner. In the summer heat, cars traveling on the county’s dirt roads cast plumes of dust in their wake. Winter’s chill can cause a hazardous film of ice to spawn on paved roads. To protect motorists from both slippery ice and vision-impairing dust, communities across Pennsylvania coat these roads with large, cheap volumes of de-icing and dust-suppressing fluids. In Lawson’s case, her township had been using oil and gas wastewater as a dust suppressant, believing the material was effective.

But researchers have found it is no better at controlling dust than rainwater. It can also contain toxic chemicals and have radioactive concentrations several hundred times the acceptable federal limit in drinking water. Given the risks it poses to human health and the environment, Pennsylvania lawmakers and the state’s environmental agency disallowed this practice more than seven years ago.

But oil and gas companies have continued to spread their wastewater practically unchecked across the state, thanks to a loophole in state regulations. A Grist review of records from 2019 to 2023 found that oil and gas producers submitted more than 3,000 reports of wastewater dumping to the state Department of Environmental Protection, or DEP. In total, they reported spraying nearly 2.4 million gallons of wastewater on Pennsylvania roads. This number is likely a vast undercount: About 86 percent of Pennsylvania’s smaller oil and gas drillers did not report how they disposed of their waste in 2023.

Wastewater dumping is an open secret on Pennsylvania roads. At a legislative hearing this spring, state senators Katie Muth and Carolyn Comitta, both Democrats, said they witnessed companies spreading wastewater last fall during a tour of new fracking wells. Lawson, who has become a public face of opposition to wastewater dumping, experiences sinus pains and believes her symptoms are connected to living near roads coated with wastewater. Sometimes the pain has been so intense she’s had to leave her home “to get different air.”

She’s submitted multiple complaints to DEP over the years, but she says it has done little to drag the agency off the sidelines. “I am told [by DEP] to catch the truck,” Lawson said. “I’m told to be my own cop.”

Neil Shader, a spokesperson for DEP, told Grist that the department “is committed to responding to all brine/roadspreading complaints that are received from the general public” and that it investigates all complaints. “If/when a responsible party is identified, appropriate enforcement action is taken,” he said.

Lawmakers first banned the use of wastewater from fracking wells as a dust suppressant in 2016. Two years later, the DEP issued a moratorium on the use of wastewater from traditional drilling methods as well. But conventional oil and gas companies have found a loophole that allows them to skirt these rules with impunity. The DEP requires permits for wastewater disposal, but the agency grants an exception if the wastewater can be reused for a “beneficial” purpose. Any waste that is no more injurious to the environment and human health than a commercial alternative may be classified as a “coproduct,” a designation that receives less DEP oversight.

Under Pennsylvania law, companies can grant their wastewater coproduct status by conducting in-house analyses to determine whether their waste is harmful to human health or the environment. These tests do not have to include a radiation analysis, even though studies have shown radium from oil and gas wastewater—which often contains 300 to 560 times the acceptable levels of radioactive substances in drinking water—has made its way into roadside vegetation, fresh water, and up the food chain. A company is only required to submit its justification for using the coproduct status if asked by the DEP to do so.

The agency rarely asks. In 2021, the DEP requested justification for claiming coproduct status from 16 companies. Only 10 responded. The DEP told them that the materials they submitted were “inadequate.”

Any conventional driller who is audited and “roadspreads” in the absence of an approved coproduct determination from the DEP—and without updating or submitting a new coproduct determination—is technically violating the agency’s moratorium, putting them in murky legal territory. But without agency enforcement, these companies face no consequences.

“As far as I am aware, there have been zero notices of violations, compliance orders, fines, and penalties for anything dealing with rogue dumping of wastewater,” said David Hess, a former DEP secretary. “No one is enforcing the moratorium.”

Shader, the DEP spokesperson, told Grist that the coproduct term will no longer appear in waste reports because oil and gas companies “have been using the product type incorrectly,” likely misunderstanding the term’s purpose. The agency “investigates reports of unauthorized roadspreading of brine and will take enforcement action as appropriate,” he said. “DEP encourages members of the public who observe potentially unauthorized roadspreading of brine to report the activity to DEP.”

The agency’s decision to drop the classification can largely be traced to the work of Karen Feridun. Feridun is the co-founder of the environmental organization Better Path Coalition, and in 2019 she noticed that the DEP had newly listed “coproduct” as a waste type in its oil and gas reports, implying to her that the agency had tacitly issued a blanket approval of wastewater dumping on roads. She then filed a public records request, which led the DEP to request a meeting with her.

During the discussion, agency representatives told her that its oil and gas division had added the term to its waste reports after an “oral request” from Pennfield Energy LLC, a conventional driller in Pennsylvania. The agency told her it had no paper trail of the communication.

Feridun was outraged. “I am convinced they knew exactly what drillers were going to do,” she said. To her, the agency had all but confirmed it had endorsed wastewater dumping.

The DEP has denied Feridun’s interpretation of its decision. The agency was attempting to “readily identify” which companies had already conducted waste toxicity assessments as a precursor to dumping their wastewater, Shader said. “The addition of this product type code was in no way intended to imply that the requirements [for safety and efficacy] did not need to be satisfied.”

The incident also appeared to indicate miscommunication within the agency. State waste codes are generated by the DEP’s Bureau of Waste Management, but oilfield oversight largely rests with the agency’s oil and gas division. Feridun wondered whether the oil and gas division had informed the waste management department of its decision to include a novel term in its records. Since the department told Feridun it had no paper trail, she said it could not give her an answer.

When asked whether the DEP’s oil and gas division communicated its waste report change to the bureau of waste management in 2019, Shader said that the divisions communicate “on a regular basis to discuss activities regulated by both programs.”

Lawson’s experiences, new research, and the findings from Feridun’s records request have thrust oil and gas companies’ behavior back into the state’s political spotlight. At a state Senate hearing in April, Bill Burgos, a professor of environmental engineering at Pennsylvania State University, told lawmakers “there is no more research that needs to be done” to determine whether oil and gas wastewater is safe and effective for treating roads. Burgos has published several studies on oil and gas wastewater, including one recently that found the fluid is ineffective as a dust suppressant.

In early May, Feridun and a group of other activists delivered a letter to Gov. Josh Shapiro and members of the legislature asking them to ban companies from spraying roads with wastewater. Two lawmakers have since introduced dueling bills on the issue. Rep. Martin Causer, a Republican serving a swath of northern Pennsylvania, proposed to legalize the practice while Rep. Greg Vitali, a Democrat representing a region east of Philadelphia, moved to ban it.

Some of the public pressure appears to have paid off. In April, the DEP proposed amending coproduct criteria to mandate an assessment of a material’s efficacy, but it is unclear if this would include radiation testing, which would give the DEP—and the public—a fuller picture of oil and gas waste’s toxicity.

Earlier this month, the agency went a step further: At a legislative hearing in front of the state house’s Environmental Resources and Energy Committee, the DEP said it supported Vitali’s bill banning oil and gas companies from spreading their wastewater on roads and preventing the fluid from being treated as a coproduct by the department. The bill advanced out of the committee with support split along party lines, but it faces a steep climb to the governor’s desk, given that Republicans control the state senate.

Until something changes, people like Lawson continue to live near roads doused with toxic wastewater. She said the dumping has been more frequent lately. If the DEP is going to more aggressively regulate oil and gas companies, it needs to be better funded, said Hess.

“As long as [companies] can get away with it, they will,” he said. “That has been the history of their entire existence.”