Environmental Alert
(by Kip Power and Varun Shekhar)
Appalachian oil and gas operators were recently reminded that proper handling, management, disposal and transportation of technologically enhanced naturally occurring radioactive material (TENORM) wastes that are generated in connection with shale gas production activities remain the focus of significant regulatory and enforcement efforts.
W.Va. DHHR TENORM Regulation. On the regulatory side, the West Virginia Department of Health and Human Resources, Bureau of Public Health (DHHR), an agency primarily involved with protecting the public and employees from radiological health risks associated with the healthcare industry, recently released proposed revisions to its legislative rule, “Radiological Health,” 64 W. Va. C.S.R. 23 (Proposed Rule). The Proposed Rule includes an entirely new Section 16, entitled “Radiation Safety Requirements for Technologically Enhanced Naturally Occurring Radioactive Material.”
In some respects, DHHR’s proposal follows the recommendations in Part N (2014) of the Conference of Radiation Control Program Directors, Inc.’s (CRCPD) “Suggested State Regulations for Control of Radiation.” However, it also varies from the CRCPD recommendations in ways that may prove troublesome, such as the inclusion of inconsistent levels of risk-based exposure limits (allowing a total effective dose equivalent of 100 mrem/year for a maximally exposed individual in one provision but limiting exposure to 50 mrem/year and 25 mrem/year in other parts). Of equal concern, the Proposed Rule appears to exceed DHHR’s legislative mandate and allows for regulation of activities in a manner that is duplicative of existing rules administered by the West Virginia Department of Environmental Protection.
The West Virginia Oil and Natural Gas Association and the Independent Oil and Gas Association of West Virginia recently filed detailed joint comments expressing these and other concerns about this proposed new TENORM regulation. The comment period on the Proposed Rule closed on August 5, 2020. The DHHR will now prepare responses to all comments received and the Proposed Rule (or if deemed necessary, a revised version of the proposal) will be filed with the Secretary of State as the agency’s final recommended rule for consideration by the Legislature’s Rulemaking Review Committee.
Federal Grand Jury Indictment. DHHR’s Proposed Rule comes in the wake of a federal grand jury’s 27-count criminal indictment of Cory David Hoskins, the owner of a Kentucky-based TENORM transport and disposal company, which transported sludge from an oil and gas brine processing plant in West Virginia to Kentucky for solidification and disposal in 2015. In particular, the indictment alleges that Hoskins and his company, Advanced TENORM Services, LLC, made false representations to the brine processing company, Fairmont Brine Processing, LLC, in representing his expertise and its DOT-compliant method of transport and disposal of the TENORM waste material. Rather, Hoskins and his company are alleged to have known that the TENORM material qualified as a Class 7 hazardous material under the DOT’s Hazardous Materials Regulations (HMR), but intentionally did not transport the TENORM material in compliance with the HMR’s requirements for Class 7 materials (including using truck drivers who were not authorized to transport hazardous materials, and using improper placarding, marking, labeling, shipping papers, and manifests.) The United States seeks a penalty of imprisonment of up to 20 years, a fine of not more than $250,000, and forfeiture of more than $127,000.
The indictment and significant sanctions sought demonstrate the importance of understanding the applicable restrictions and regulations on handling, processing, and disposal of TENORM, as well as the need for generators of such wastes to perform appropriate inquiry and due diligence into the disposal contractors they select.
Babst Calland attorneys are prepared to assist your company in navigating these complex regulations. Should your company have questions about DHHR’s Proposed Rule or TENORM regulation in general, please contact Christopher B. (“Kip”) Power at (681) 265-1362 or cpower@babstcalland.com or Varun Shekhar at (202) 975-1390 or vshekhar@babstcalland.com.
