Bloomberg Law
July 29, 2021, 8:01 AM

Legal Gaps Leave Fracking a Radioactive Mess

Bemnet  Alemayehu
Bemnet Alemayehu
Natural Resources Defense Council (NRDC)
Amy Mall
Amy Mall
Natural Resources Defense Council (NRDC)

For decades, federal and state regulators have known about the health risks of radiation from oil and gas production, but gaps and carve-outs in federal environmental laws and weak or non-existent state regulations have left workers, the public, and clean water at risk.

Dangers to the public from this spotty legal framework have grown over the past decade, as the fracking boom has led to billions of gallons of produced water and tons of underground rock and sand being brought to the surface and disposed of inadequately.

It’s time for Congress to update key environmental laws such as the Atomic Energy Act (AEA), Resource Conservation and Recovery Act (RCRA), and Safe Drinking Water Act (SDWA) to establish safeguards to protect the public and environment from this dangerous waste.

In addition, the Occupational Safety and Health Administration needs to update rules based on science from the 1970s that are woefully inadequate to address the risks faced by drivers, drillers, and other oil and gas workers.

In an ideal world, states would step in and protect workers, communities, and water sources when the federal government is AWOL. However, a report we just released shows that none of 12 states with massive oil and gas operations has adequate standards in key areas. In fact, four of the 12 states have no statewide restrictions at all on the level of radioactive material in this waste that can be accepted at landfills, and eight don’t require monitoring of radioactive material leaching out of those landfills.

Radioactive Waste From Oil and Gas Production

Oil and gas production—and especially the fracking of underground shale—can lead to radioactive elements being brought to the surface in produced water or rock and sand.

Radiation can be accidentally released from spills or leaks of pits, tanks, or landfills where oil and gas waste is stored. In some cases, this dangerous waste is intentionally released; for example, when produced brine is spread on roads for dust suppression or deicing.

If these wastes are not properly managed, they present unacceptably high health risks, particularly the risk of cancer. Studies over the past 70 years have shown that even small exposure to radiation over time will increase cancer risks, and that’s led to tight standards for exposure at nuclear plants and radiation facilities.

Federal Laws Regulating Radioactive Waste Need Updating

While regulators have known for decades about the risk of radioactive elements associated with oil and gas production, gaps in our laws have meant the fundamental assessment has not been done even to determine how big a problem this is.

The first order of business from OSHA and the Environmental Protection Agency should be to determine the risks to workers, the public, and the environment from the naturally occurring radioactive material in oil and gas waste.

Congress also needs to update key environmental laws to protect workers and nearby residents. Laws needing updating include the following:

RCRA: In 1980, Congress amended RCRA to temporarily exempt wastes associated with oil and gas exploration and production from hazardous waste regulations, pending the completion of an EPA study. The EPA completed the study in 1988, finding, among other things, that uranium was detected at “levels that exceed 100 times EPA’s health-based standards.”

But the agency punted on regulating oil and production under the hazardous waste title (Subtitle C), creating a huge loophole for the industry. The EPA should add radioactivity to its definition of toxicity, and Congress should change the law to mandate treating this waste as the hazard it is.

AEA: The AEA, initially passed in 1946, is primarily concerned with the fission process and nuclear fuel used at nuclear power plants and does not cover all radioactive materials. It ignores so-called naturally occurring radioactive materials, including those materials produced by the oil and gas industry.

SDWA: The SDWA establishes categories for the injection of wastewater into underground wells. However, because RCRA doesn’t categorize oil and gas production waste as “hazardous,” the tighter rules for injection of hazardous waste don’t apply to this contaminated water. And so, fixing the RCRA gap must be followed by fixing the rules for injection wells.

In addition to these, changes are needed to the Clean Water Act, trucking regulations, and the Clean Air Act. This combination of rewriting the laws and regulating under the authority that already exists is necessary to fully address the threats from radioactive waste from fracking and protect workers and the environment.

There are bills pending that would give the EPA greater authority to regulate oil and gas exploration and production under the SDWA, RCRA, Clean Air Act, and Clean Water Act, which we hope will also lead to greater protections from the dangers of radioactivity.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Bemnet Alemayehu is a staff scientist at NRDC (Natural Resources Defense Council) where he concentrates on issues relating to the environmental monitoring and health effects of radiation. He received his PhD in radiation health physics from Oregon State University.

Amy Mall is a senior advocate at NRDC, where she has worked for 20 years helping shape policies to protect human health and the environment from the harms of oil and gas development, including fracking and pipelines. Prior to joining NRDC, Mall worked in the private sector and in government.

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