Regulation of Oil & Gas Wastes Containing TENORM

ESSENTIAL INFORMATION January 17 Regulation of Oil & Gas Wastes Containing TENORM Prepared by Elizabeth Ann Geltman Glass, JD, LLM & Nichole LeClair SUMMARY A growing number of states are developing laws, regulations, and policy standards governing disposal of technologically enhanced naturally occurring radioactive material (TENORM) waste and/or naturally occurring radioactive material (NORM) from high volume hydraulic fracturing (HVHF, or fracking ). TENORM and NORM contain radioactive isotopes, Radium-226 and Radium-228, which decay further into radon. Radon is the second-leading cause of lung cancer in the United States. Indeed, studies show that radon levels increased in Pennsylvania during the time period that the state had increased shale gas extraction using HVHF. 1 Given the rise of HVHF in the past decade, certain states began to enact measures to protect both the public and workers from radiation exposure involved in well operations, transport and storage of oil and gas wastes. While many states have statutory requirements in their general radiation provisions, certain oil and gas states developed or are considering developing provisions specifically impacting oil and gas operations that govern the disposal of TENORM or NORM disposal. This dataset explores how states handle the disposal of TENORM and/or NORM waste from oil and gas operations from all 50 states and the District of Columbia in effect December 1, 16. ABOUT THE DATA Some findings from the dataset include: Eighteen states have developed provisions or a required permit governing disposal of TENORM or NORM applicable to oil and gas industry: California, Colorado, Illinois, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Montana, North Dakota, New Mexico, Ohio, Pennsylvania, South Dakota, Tennessee, Texas, Washington, and Wyoming. Only two states, Pennsylvania and Tennessee, do not explicitly set disposal limits in the law, regulation, guidance, or permit. Fourteen states are not agreement states (did not complete an agreement with the United States Nuclear Regulatory Commission to license byproduct radioactive material): Alaska, Connecticut, District of Columbia, Delaware, Hawaii, Idaho, Indiana, 1 Casey, Joan A., Elizabeth L. Ogburn, Sara G. Rasmussen, Jennifer K. Irving, Jonathan Pollak, Paul A. Locke, and Brian S. Schwartz. "Predictors of indoor radon concentrations in Pennsylvania, 1989 13." Environmental health perspectives 123, no. 11 (): 1130 Essential Information for Regulation of Wastes Containing TENORM January 17

Michigan, Missouri, Montana, South Dakota, Vermont, West Virginia, and Wyoming. The remaining states all are agreement states. Nineteen states have general provisions governing the licensing of individuals or facilities to work with TENORM or NORM: Arkansas, Colorado, Georgia, Idaho, Louisiana, Maine, Mississippi, North Dakota, Nebraska, New Jersey, New Mexico, Nevada, New York, Ohio, Oregon, South Carolina, Texas Virginia, and West Virginia. Most these states establish the following exemption limits: 1.) 5pCi/g of Ra-226 and/or Ra-228 2.)0 pci/g for any other NORM radionuclide. Five states, such as Colorado, Mississippi, New Mexico, South Carolina, and Texas have exemption limits ranging between 30 pci/g and 50pCi/g for Radium-226 and Radium-228. Five states Colorado, Louisiana, Mississippi, New Mexico, and Texas have provisions that expressly protect oil and gas workers. Three states Colorado, Mississippi, and New Mexico, have provisions protecting the public, which can be expressly applied to oil and gas operations. Four states Georgia, Mississippi, New Mexico and Texas have provisions relegating produced water as either TENORM or NORM. Three states Illinois, Kansas, and Montana include drill cuttings in the definition of NORM. Arkansas, Colorado, Louisiana, Mississippi, Montana, New Mexico, North Dakota, Pennsylvania, Texas, and Wyoming include sludge; Arkansas, Colorado, Georgia, Louisiana, Mississippi, Montana, New Mexico, North Dakota, Ohio, South Carolina, Texas, and Wyoming include scale; and, Arkansas, Colorado, Georgia, Louisiana, Maine, Mississippi, Montana, North Dakota, New Mexico, Ohio, Oregon, Pennsylvania, South Carolina, Texas, Virginia, West Virginia, and Wyoming include contaminated equipment in the provisions regarding TENORM/NORM Essential Information for Regulation of Wastes Containing TENORM January 17 2

States Producing Oil & Gas States with HVHF States with No HVHF States with a Ban on HVHF States with a Local Ban or Moratoria on TENORM law TENORM Disposal Limits Set General Licensing Provision for Agreement v Nonagreement State TENORM Defined NORM Defined RCRA Exclusion Radiation Protections for O&G Workers Radiation Protections for Nearby Residents TENORM in Produced Waters Regulated TENORM in Drill Cuttings Regulated TENORM in Sludge Regulated TENORM in Scale Regulated TENORM in Contaminated Equipment Number of States with Regulations Below is a chart summarizing the findings: 50 45 40 30 25 5 0 Radiation Protections from Exposure to Oil & Gas Wastes 31 17 43 8 47 2 36 33 18 16 32 19 37 0 34 17 27 24 48 3 46 5 48 47 47 3 4 3 41 39 12 34 17 Yes No Factors Evaluated With regard to state regulation of types and methods of disposal of oil and gas waste containing radiation, the data shows: Essential Information for Regulation of Wastes Containing TENORM January 17 3

Ten states have prohibited the disposal of TENORM waste, either through prohibition of certain disposal methods, or prohibiting disposal of HF waste: Connecticut, Idaho, Illinois, Maryland, Maine, North Dakota, New York, South Dakota, Texas, and Vermont. The following four states have general bans on disposal of fracking waste: Connecticut, Maryland, New York, and Vermont. Texas is the only state that has a provision in their oil and gas regulations prohibiting disposal of NORM waste into surface waters. The majority of states that allow for disposal options, either through licensing of NORM or TENORM or through oil and gas regulations, allow for disposal at a permitted facility, such as an RCRA facility, a licensed facility, a low-level radioactive waste facility, or a commercial facility, however, several states also allow for other disposal options. Colorado, Texas and New Mexico allow burial of TENORM or NORM waste; Four states Kansas, Mississippi, New Mexico, and Texas allow for landspreading. Seven states allow for deep well injection: Colorado, Maine, Michigan, Mississippi, New Mexico, Ohio, and Texas. New Mexico and Texas are the only states that allow for disposal of TENORM or NORM in plugged and abandoned wells. Below is a chart summarizing the findings regarding state regulation of types and methods of disposal of oil and gas waste containing radiation: Essential Information for Regulation of Wastes Containing TENORM January 17 4

Transfer to authorized facility Disposal in permitted facilities Disposal by injection wells Limited land application-spreading Disposal at a Licensed Land Disposal at a Low-Level Disposal at a Permitted Solid Disposal in Plugged and Burial Land-spreading Incineration Deep Well Injection Disposal in Non-retrieved Flow- Reuse Treatment Prior to Disposal Other Disposal Prohibited State Regulation of Disposal Options for O&G Wastes with TENORM or NORM 45 40 30 25 5 0 41 26 26 26 23 24 24 23 24 22 18 16 16 17 11 12 9 7 5 5 4 4 3 3 4 5 3 1 1 1 Regulated by the State Not Regulated by the State NAVIGATING THE DATA The questions featured on this page identify which states regulate TENORM or NORM and more specifically, which states address the disposal of TENORM or NORM in the oil and gas industry. From this page, visitors can navigate through the state laws and regulations, if any, about TENORM and NORM. While some states have provisions in their general radiation programs for TENORM and NORM, more variation across states as some address TENORM and/or NORM through provisions in waste management and oil and gas. The question becomes: can states, which allow for shale gas extraction and oil exploration, protect workers and the public to TENORM and/or NORM generated during the processes to the extent they should? There are two ways to navigate the data using the interactive map: (1) By selecting a state from the map; or (2) By selecting criteria that detail the characteristics of the laws. Essential Information for Regulation of Wastes Containing TENORM January 17 5

Option 1 State by state: Using the map, click on the state of interest. A table will appear with details about that state s law. The first row of the table includes a link to the state fact sheet. Option 2 Multiple states: To view the law across multiple states, you may use the questions to filter through various criteria. Clicking on a question will expand the answers/criteria for you to select. In some cases, secondary questions may appear after answering one of the primary questions these secondary questions dig deeper into the detail of that specific area of the law. The map will change based on the criteria you select. The primary questions are: 1. Does the state have a specific provision regulating disposal of oil and gas wastes containing NORM or TENORM? a. Does the state set TENORM disposal limits? i. If so, what is the type of limit? ii. If so, what is the radionuclide? iii. If so, what is the state set disposal limit in picocuries per gram? 2. Does the state have a general provision regarding the licensing of NORM/TENORM? a. What is the exemption limit, in pci/g? b. What is the radionuclide(s)? 3. Is this an agreement state? 4. Does the state law define TENORM? 5. Does the state law define NORM? 6. Does the state exclude TENORM from the definition of RCRA regulated wastes? a. Does the state include TENORM in RCRA regulated wastes? 7. Does that state set any of the following disposal options? (check all that apply) 8. Does the state have provisions prohibiting the disposal of TENORM/NORM, applicable to the entire state? a. If yes, what is the prohibited disposal method? 9. Does the state have provisions for the protection of workers regarding TENORM/NORM that can be expressly applied to oil and gas workers?. Does the state have provisions that protect the public in regards to TENORM/NORM that can be expressly applied to oil and gas operations? 11. Does the state include produced water in the regulation of NORM or TENORM? 12. Does the state include drill cuttings in the regulation of NORM or TENORM? 13. Does the state include scale in the regulation of NORM or TENORM? 14. Does the state include sludge in the regulation of NORM or TENORM?. Does the state include contaminated equipment in the regulation of NORM or TENORM? Along with the responses, there are a few interactive symbols that appear in the columns: Clicking on a red gavel symbol will display the full text of all statutes and regulations related to the topic within the chosen jurisdiction that have been included in the dataset. These are the legal texts that have been used to answer the questions displayed above. Clicking on a red statute symbol will display the specific statutory and/or regulatory citations supporting that selected characteristic of the law. Each citation is also clickable, and clicking on the citation text will display the text of the law linked to that citation. Clicking on a question mark symbol, or caution note, will reveal unique features of the Essential Information for Regulation of Wastes Containing TENORM January 17 6

statutory and/or regulatory law(s). These caution notes alert users to important differences and greater detail about the criteria selected. ADDITIONAL INFORMATION Refer to the Research Protocol and the Codebook if you would like to learn how the data was created and subsequently coded. The Codebook provides a list of the questions that were coded and their corresponding variable names. The data itself is also available for download into Microsoft Excel. The Research Protocol, Codebook, and data are available for PDF download on the TENORM webpage. For additional information about TENORM and NORM policy, please see: TENORM: Oil and Gas Production Wastes. United States Environmental Protection Agency website. https://www.epa.gov/radiation/tenorm-oil-and-gas-production-wastes. Accessed January 17, 17 Hydraulic Fracturing. Groundwork website. http://groundwork.iogcc.ok.gov/topicsindex/hydraulic-fracturing. Accessed January 17, 17 This collection of laws does not provide legal advice nor does it address enforcement of laws, administrative policies, case law, or any other sources of law. Should you have a specific question about these laws in your state, please contact an attorney in your jurisdiction. Essential Information for Regulation of Wastes Containing TENORM January 17 7