Indictment for Improper Radioactive Waste Disposal Highlights More Compliance Concerns for Fracking Companies and Uranium Miners by Paul M. Bessette, partner, and Grant W. Eskelsen, Associate, July 23, 2020, Morgan Lewis
A federal grand jury in the Eastern District of Kentucky issued an indictment against an individual for transportation of radioactive material generated from fracking activities without compliance with US Department of Transportation hazardous materials regulations. The indictment comes on the heels of increasing focus at the state and federal levels on the safe disposal of so-called “TENORM” wastes, i.e., technologically enhanced naturally occurring radioactive material wastes that are generated as a result of certain mining and manufacturing activities, including hydraulic drilling or “fracking.” The indictment highlights the need for companies to plan for the disposal of TENORM generated during their operations, including performing appropriate due diligence on any contractors they may engage to assist with disposal.
As background, the natural environment includes certain amounts of radioactive material, sometimes referred to as naturally occurring radioactive material or “NORM.” This material is found in various rock formations around the country and the world, and the level of radiation varies by location. Of particular note, certain amounts of NORM are commonly found in the geological shale formations that contain shale oil and natural gas. The EPA has defined TENORM as “naturally occurring radioactive materials that have been concentrated or exposed to the accessible environment as a result of human activities such as manufacturing, mineral extraction, or water processing.” TENORM can be generated during various mining activities, but also can build-up during water treatment operations and in certain manufacturing activities, like fertilizer production and certain building materials. TENORM can present a possible radiation hazard to personnel at high concentrations. As a result, companies generally monitor their equipment to ensure that TENORM levels do not build up to an unsafe level, and use various methods to remove and dispose of TENORM as it builds up.
Regulations covering the disposal of TENORM vary from state to state. Some states allow disposal of certain quantities of TENORM in any landfill or waste disposal facilities. Materials with higher concentrations require more specialized disposal methods, such as solidification, dilution, or mixing with nonhazardous wastes. However, to transport TENORM wastes to a disposal facility, shipping companies must comply with the US Department of Transportation’s Hazardous Material Regulations, which govern the interstate and intrastate transportation of quantities of TENORM above certain thresholds for radioactive materials.
With that background in mind, the announcement that grand jury in the Eastern District of Kentucky issued an indictment against a shipper on July 16 is worth examining. The indictment alleges that the individual and two companies that he controlled contracted in 2015 with an oil and shale gas drilling brine processer in West Virginia to handle the disposal of TENORM waste streams (in the form of sludge) from the facility. The indictment alleges that he then contracted with other trucking companies and drivers in Kentucky to transport, mix, and dispose the TENORM collected to a Kentucky landfill without following the Hazardous Material Regulations. The indictment also alleges that the individual made false representations to state and federal government agencies, trucking companies, and truck drivers that the TENORM was nonhazardous and exempt from the Hazardous Material Regulations, including generating false shipping manifests. The creation of these false manifests allegedly prevented detection of the violations by the US Department of Transportation, and also misled the Kentucky landfill into accepting the wastes when it was not prepared or equipped to accept such radioactive material for disposal.
The indictment contains 27 counts for two separate crimes. Twenty-two counts relate to alleged willful and reckless violations of the transportation provisions of the Hazardous Material Regulations in his shipments of TENORM sludge from the processor. The remaining five counts all relate to mail fraud involving cashed checks by the individual without performing the services for his customer that he was contracted to provide, including solidification and proper transportation of the waste for disposal. The indictment seeks a money forfeiture of $127,110, the amount obtained as the result of his violations.
Although criminal indictments for failure to follow the Hazardous Material Regulations appear to be rare, the indictment reminds companies of the need to be aware of the potential for TENORM generation in their activities and the need for proper transportation and disposal. While mining and manufacturing companies can use appropriate contractors to perform these services for them, the indictment also reminds TENORM generators of the need to conduct appropriate due diligence on the contractors they use to prevent against potential reputational harm at a minimum. Morgan Lewis has helped companies with conducting environmental due diligence and will continue to follow TENORM developments.
Charges: Man illegally hauled radioactive waste to KY landfill. Feds seek $127K payment by Bill Estep, July 17, 2020, Kentucky.com
A Kentucky man has been charged with illegally shipping tons of radioactive waste to a landfill in Estill County that was not equipped to handle it.
A federal grand jury indicted Cory David Hoskins Thursday on five charges of mail fraud, based on checks he received through the mail as part of the alleged crime, and 22 charges of “willfully and recklessly” violating safety regulations on shipping hazardous materials in 2015.
Hoskins operated companies called Advanced TENORM and BES LLC, both based in West Liberty, in Morgan County.
TENORM stands for “technologically enhanced naturally occurring radioactive material.” The material is a byproduct of hydraulic fracturing, or fracking, to recover oil and natural gas, and is classified as hazardous because of low-level radioactivity.
Hoskins allegedly told a West Virginia company called Fairmont Brine Processing, LLC, that Advanced TENORM could safely transport, treat and dispose of sludge from its operations.
Hoskins told the West Virginia company that his company included engineers, nuclear physicists with doctorates and other experts. That was a lie, the indictment said.
Hoskins also lied and said he would haul the sludge in trucks that complied with U.S. Department of Transportation rules on transporting hazardous materials, according to the indictment.
Hoskins “did not keep the promises” he made to the West Virginia company because it would have been more expensive and time-consuming to haul the waste in compliance with federal safety rules, the indictment said.
Hoskins allegedly hired trucking companies and drivers from the Ashland area and elsewhere that didn’t have the proper certification to haul hazardous waste, and didn’t tell the drivers and carriers what they were hauling was radioactive.
He also didn’t put required notices on the trucks and shipping containers to describe the hazardous sludge. One purpose of those labels is to let police, firefighters and emergency workers know what’s in a truck in case of an accident.
Hoskins drew up shipping manifests that said the material he was having hauled was not hazardous, and misled the landfill about the waste, the indictment charged.
The Herald-Leader reported in 2017 that Hoskins arranged for the shipment of more than 1,000 tons of low-level radioactive waste from West Virginia and Ohio to be dumped in landfills in Estill and Greenup counties.
The indictment against Hoskins only mentions 22 shipments to the Estill County landfill between July 22, 2015 and Aug. 27, 2015.
The illegal diposal of the waste caused concern in Estill County — the landfill is near schools — but state officials said in 2016 that there was not an imminent health threat from the material. 
I trust regulators/state and provincial officials about as much as I trust lying waste dumpers and frac’ers.
The state proposed a settlement in 2018 under which the radioactive material would be left in the Blue Ridge Landfill in Estill County with a cap over it.
A challenge to the plan by a citizens group is pending.
The indictment includes a request for a judgment of $127,110 against Hoskins if he is convicted, representing the amount he grossed from alleged illegal activity.
Attempts to contact Hoskins Friday were not successful.
The maximum sentence on the mail-fraud charges against Hoskins would be 20 years. The charges on violating hazardous-materials safety rules are punishable by up to five years.
| NY could become first in the nation to close loophole on dangerous oil and gas waste, Federal and state laws treat hazardous oil and gas waste as if it is safe–except in NY if this bill becomes law Press Release by Earthworks, July 22, 2020 Background: Today the New York Senate approved Senate Bill S3392 that closes a hazardous waste loophole that has allowed over 640,000 tons of waste from fracking sites in Pennsylvania to be poorly disposed of in the state of New York. This follows the passage of a companion bill in the Assembly (A2655). If Governor Andrew Cuomo signs the bill, New York will become the first state in the US to ensure that oil and gas waste that meets the definition of “hazardous” is regulated as such. Statement of Earthworks’ Policy Analyst Melissa Troutman, who lives near fracking operations in northern PA: “As an advocate and frontline resident in Pennsylvania, I am so grateful to the New York Legislature for leading the nation and removing an oil and gas loophole that threatened residents of New York State with potentially toxic and radioactive waste. Communities in northern PA will be safer when the industry’s waste, which can contain hazardous materials, is properly analyzed before being transported near their homes on its way to New York State. “New York has been forward-thinking on climate and health in many ways, and it is long past time for the oil and gas industry to be required to properly handle its waste, which has polluted communities for decades and could continue far into the future. “Today the New York Legislature has set a powerful precedent to treat hazardous oil and gas waste for what it is. This should be repeated in Pennsylvania and ultimately adopted by Congress to protect all communities in the United States from hazardous oil and gas waste. Governor Cuomo should quickly sign this into law to protect health and safety while continuing to make New York a leader on climate.” FOR MORE INFORMATIONEarthworks’ New York Frack Waste Report (2019) and national Still Wasting Away (2019) reportOne-pager summary on NY hazardous waste problem: “The Case for Closing New York’s Oil and Gas Waste Loophole.”Rolling Stone article on radioactivity of oil and gas waste: “America’s Radioactive Secret”Press statement of NY State Senator Rachel May (D-Onondaga, Madison, Oneida) |
| *** Earthworks is dedicated to protecting communities and the environment from the adverse impacts of mineral and energy development while seeking sustainable solutions.earthworks.org Twitter: earthworks Facebook: earthworksaction |
Refer also to:
Oil companies sued over man’s death allegedly tied to radioactive materials in drilling pipes
BP, Chevron Accused Of Illegally Dumping Toxic Radioactive Drilling Waste Into Louisiana Water
2013: Radioactive Drilling Waste Shipped to Landfills Raises Concerns
2012: Triangle Petroleum fracking radioactive waste water cleanup target missed in Nova Scotia
Encana/Ovintiv Radioactive Rule of Law?
Encana/Ovintiv dumping its waste on foodland at Rosebud, 2012
More Encana/Ovintiv Dirty Oil Patch Controlled Rule of Law:
Encana and Alberta gov’t were granted their choice of next case management judge in Ernst vs Encana by case management judge #2 (retiring chief justice Neil C Wittmann) shortly after Supreme Court of Canada pissed on the truth and rule of law in their ruling in Ernst vs AER, letting the “regulator”escape my guaranteed Charter right to seek remedy for them violating my charter rights.
2006: BJ Services radioactive frac blowout document (sadly, since removed and, unlike the usual me, I didn’t save a copy)