CABINET FOR HEALTH AND FAMILY SERVICES

Department for Public Health

Division of Public Health Protection and Safety

(Amended After Comments)

 

††††† 902 KAR 100:180. Technologically Enhanced Naturally Occurring Radioactive Material related to oil and gas development.

 

††††† RELATES TO: KRS 189.150, 211.842-211.990, 216B.050(22), Chapters 224 and 353, 401 KAR Chapters 47 and 48, 902 KAR 100:010, 100:019, 100:021, 100:022, 100:040

††††† STATUTORY AUTHORITY: KRS 194A.050(1), 211.090(3), 211.180(1)(a), 211.842, 211.844(1), 211.863(6), 211.865, 211.893(2)

††††† NECESSITY, FUNCTION AND CONFORMITY: KRS 194A.050(1) requires the secretary of the Cabinet for Health and Family Services to promulgate administrative regulations necessary to protect, develop, and maintain the health, personal dignity, integrity, and sufficiency of Kentucky citizens and to operate programs and fulfill the responsibilities vested in the cabinet. KRS 211.893(2) directs the cabinet to exercise its regulatory authority to ensure the proper management of oil- and gas-related wastes containing technologically enhanced naturally occurring radioactive material (TENORM). This administrative regulation establishes radiation protection standards for the possession, use, transport, transfer, and disposal of TENORM related to oil and gas development.

 

††††† Section 1. Definitions. (1) "Activity concentration" means the rate of disintegration (transformation) or decay of radioactive material per unit of dry mass.

††††† (2) "Oil and gas development":

††††† (a) Means the drilling, operation, and closure of a well permitted and regulated pursuant to KRS Chapter 353, including:

††††† 1. A stratigraphic test well;

††††† 2. An oil or[and] gas production well;

††††† 3. A well drilled or used for enhanced recovery or for disposal of oil or[and] gas-related wastes; or

††††† 4. A related production and storage facility; and

††††† (b) Includes gathering lines, but does not include subsequent transmission or processing of produced oil or gas not permitted or regulated pursuant to KRS Chapter 353.

††††† (3) "Technologically Enhanced Naturally Occurring Radioactive Material" or "TENORM" is defined by KRS 211.862(13).

††††† (4) "Well operator" is defined by KRS 353.010(20).

 

††††† Section 2. Applicability. (1) This administrative regulation shall apply to a person who receives, owns, possesses, uses, processes, transfers, transports, distributes, arranges for the disposal of, or disposes of TENORM with an activity concentration greater than five (5.0) picocuries per gram of combined radium-226 (Ra-226) and radium-228 (Ra-228).

††††† (2) This administrative regulation shall apply only to TENORM related to oil and gas development.

††††† (3) Each person subject to this administrative regulation shall manage and dispose of waste containing TENORM:

††††† (a) Pursuant to Section 6 of this administrative regulation; or

††††† (b) In accordance with an alternate method authorized by the cabinet upon written request or upon the cabinetís initiative in accordance with this administrative regulation and administrative regulations of the Energy and Environment Cabinet.

††††† (4) Exemptions to this administrative regulation are found in Section 3 and are not considered a hazard to public health based on scientific and health rationale.

 

††††† Section 3. Exemptions. The following are exempt from the requirements of this administrative regulation:

††††† (1) Background activity concentrations upon specific request and the written approval of the cabinet;

††††† (2) Drill cuttings and associated residual pit fluids from wells permitted pursuant to KRS Chapter 353 and managed in accordance with the requirements of that chapter; and

††††† (3) Water produced from or utilized during oil or gas well development or production operations, including produced water and water flowed back following hydraulic fracturing operations that is disposed of in injection wells that are regulated and permitted in accordance with KRS Chapter 353 and, where applicable, the Safe Drinking Water Act and Underground Injection Control Program.

 

††††† Section 4. Sample Collection and Analysis. (1) All sample collection pursuant to this section shall be conducted so as to be representative of the entire waste load or container.

††††† (2) Sample collection and analysis of the TENORM-containing waste shall take place prior to disposal in the following manner:

††††† (a)1. At least five (5) representative samples taken randomly from within the load or container shall be composited into one (1) sample and analyzed; or

††††† 2. For tubing, a representative sample shall be taken every 500 feet;

††††† (b) Analysis of TENORM waste proposed to be transported off-site for management or disposal shall be conducted by a laboratory accredited by the National Environmental Laboratory Accreditation Conference to perform radiological analysis.

††††† (c) Each sample analyzed by an accredited laboratory shall be analyzed for the activity concentration of combined Ra-226 and Ra-228;

††††† (d) For TENORM waste being disposed of downhole pursuant to Section 6(4) of this administrative regulation, sample collection and analysis shall be performed:

††††† 1. Pursuant to paragraph (a)-(c) of this subsection; or

††††† 2. At the election of the well operator, by measuring the highest on-contact radiation exposure rate or radiation dose rate reported in microroentgen per hour (mR/hr) or microrem per hour (mrem/hr) through the use of a portable radiation detector that is:

††††† a. Appropriate for the radiation being measured; and

††††† b. Calibrated at least annually.

††††† (e) The cabinet may require additional testing if another progeny is considered to be of primary concern.

††††† (3) For the purpose of determining disposal method pursuant to Section 6 of this administrative regulation, sample collection and analysis meeting the requirements of subsection (2) of this section may additionally occur after the waste has been prepared or treated for disposal as long as the waste is not treated beyond the minimum required for disposal.

 

††††† Section 5. Transporting TENORM Waste for Management or Disposal. (1) TENORM waste being transported for management or disposal shall be:

††††† (a) Accompanied by a waste profile or manifest document pursuant to Section 8 of this administrative regulation;

††††† (b) Covered and contained during transportation in accordance with general standards of the U.S. Department of Transportation and Kentucky Transportation Cabinet; and

††††† (c) Packaged or stabilized as needed to prevent dispersion during transportation or landfill placement.

††††† (2) Other than TENORM wastes stored on-site prior to disposal in conjunction with an oil or gas operation permitted pursuant to KRS Chapter 353 and those materials awaiting return transportation following rejection at the disposal facility in accordance with Section 6(6)(c) of this administrative regulation, the storage or treatment of TENORM waste is allowed only if licensed pursuant to 902 KAR 100:040.

 

††††† Section 6. Disposal of Waste. (1) TENORM waste with an activity concentration greater than five (5.0) and less than or equal to 100 pCi/g of combined Ra-226 and Ra-228 shall be disposed in a:

††††† (a) Landfill meeting the design and construction standards of a contained landfill as defined by the Energy and Environment Cabinet that:

††††† 1. Possesses a current permit demonstrating compliance with the requirements of KRS 224 and administrative regulations promulgated thereunder; and

††††† 2. Ensures the disposal is in accordance with statutory provisions of KRS 224 and regulatory provisions of 401 KAR that apply specifically to the disposal of TENORM waste in such a facility;

††††† (b) Well that is regulated and permitted for such disposal pursuant to the requirements of subsection (4) of this section; or

††††† (c) Landfill meeting the requirements of subsection (2)(a) or (2)(b) of this section.

††††† (2) TENORM waste with an activity concentration greater than 100 and less than or equal to 200 pCi/g of combined Ra-226 and Ra-228 shall be disposed of in a:

††††† (a) Landfill located in Kentucky specifically permitted by the Energy and Environment Cabinet to accept such TENORM wastes for disposal or located in Illinois as specified under the terms and conditions of the Central Midwest Interstate Low-Level Radioactive Waste Compact pursuant to KRS 211.859;

††††† (b) Licensed low-level radioactive waste disposal facility as directed by 902 KAR 100:021; or

††††† (c) Well that is regulated and permitted for such disposal pursuant to the requirements of subsection (4) of this section.

††††† (3) TENORM waste with an activity concentration greater than 200 pCi/g of combined Ra-226 and Ra-228 shall be disposed of in a:

††††† (a) Licensed low-level radioactive waste disposal facility as directed by 902 KAR 100:021; or

††††† (b) Well that is regulated and permitted for such disposal pursuant to the requirements of subsection (4) of this section.

††††† (4) The downhole disposal of TENORM waste into a well located on the same lease, pool, or unit from which the TENORM waste was generated is allowed if:

††††† (a) The well is permitted by the Energy and Environment Cabinet;

††††† (b) Disposal is done in accordance with the requirements of the Energy and Environment Cabinet; and

††††† (c) The radioactivity is analyzed pursuant to Section 4(2)(d) of this administrative regulation and reported to and maintained by the Energy and Environment Cabinet.

††††† (5)(a) TENORM waste imported from outside of Kentucky or Illinois is prohibited from being disposed of in Kentucky pursuant to KRS 211.859.

††††† (b) The disposal of TENORM waste with an activity concentration greater than 200 pCi/g of combined Ra-226 and Ra-228 in a landfill in Kentucky is prohibited.

††††† (6) Prohibited TENORM waste that is delivered to a landfill for disposal shall be rejected. The owner or operator of the landfill shall:

††††† (a) Record the:

††††† 1. Source;

††††† 2. Amount;

††††† 3. Generator; and

††††† 4. Other identifying information about the rejected waste; and

††††† (b) Notify the cabinet by telephone, fax, or electronic mail within one (1) business day of the rejection, impoundment, and quarantine of such material. Contact telephone numbers are established in 902 KAR 100:040, Section 15(3); and

††††† (c) Impound and quarantine the waste load until the cabinet determination on the disposition of the waste providing that the impounding and quarantining of such waste by the owner or operator of the landfill shall not constitute storage nor cause the owner or operator of the landfill to become responsible under law for the further management or disposition of such waste.

††††† (7) Records of disposal, including waste profiles and manifests, shall be maintained by the owner or operator of the landfill for thirty (30) years after closure of the facility.

 

††††† Section 7. Material or Real Property Containing TENORM. (1) The transfer of TENORM not exempt pursuant to Section 3 is authorized if the equipment and facilities contaminated with TENORM are to be used by the recipient for the same purpose.

††††† (2) Transfers made pursuant to subsection (1) of this section do not relieve the person making the transfer from the responsibilities of assessing the extent of TENORM contamination or material present, informing the person receiving the TENORM of these assessments, and maintaining records required by this administrative regulation.

††††† (3) The transfer of TENORM products not exempt in Section 3 is authorized provided the requirements of this section are met and the product is accompanied by a waste profile or manifest document pursuant to Section 8.

††††† (4) The remediation of material contaminated with TENORM shall be performed only if licensed to do so pursuant to 902 KAR 100:040.

††††† Section 8. Record Keeping Requirements. (1) A person in possession of TENORM waste with an activity concentration greater than five (5.0) pCi/g and less than or equal to 100 pCi/g of combined Ra-226 and Ra-228 being transported for management or disposal shall maintain and provide to the off-site treatment or disposal facility receiving such waste a waste profile or manifest containing such information as required by the Energy and Environment Cabinet.

††††† (2) A person in possession of TENORM waste with an activity concentration greater than 100 pCi/g and less than or equal to 200 pCi/g of combined Ra-226 and Ra-228 being transported shall maintain a copy of the form RPS 180, TENORM Manifest[, RPS 180]. The manifest shall contain the:

††††† (a) Name and signature of any:

††††† 1. Generating facility owner or operator;

††††† 2. Transporter company; and

3. Receiving facility owner or operator.

††††† (b) Identity and business contact information of the accredited laboratory that analyzed the samples;

††††† (c) Type, amount, activity concentration, and source of TENORM being transported; and

††††† (d) Unique tracking number established by the generator.

††††† (3) A person in possession of TENORM waste with an activity concentration greater than 200 pCi/g of combined Ra-226 and Ra-228 activity concentration being transported shall maintain records in accordance with 902 KAR 100:021.

 

††††† Section 9. Worker Training and Safety. (1) A landfill approved for the disposal of TENORM waste pursuant to Section 6(2) shall implement a worker training program and safety program to meet the requirements of 902 KAR 100:019.

††††† (2)(a) A landfill permitted to accept TENORM waste pursuant to Section 6(2) shall monitor individuals for exposure to radiation and radioactive material as required by 902 KAR 100:019, Section 13, for at least two (2) years.

††††† (b) Personnel dosimeters shall meet the requirements of 902 KAR 100:019, Section 12.

††††† (c) If the average result is less than 200 millirems (2.0 mSv) per year, suspension of individual monitoring may be requested and approved in writing by the cabinet.

 

††††† Section 10. Violations. (1) A violation of this administrative regulation shall be subject to KRS 211.869(1) and (3) and KRS 211.990(2) and (4).

††††† (2) A violation of an Energy and Environment Cabinet regulation referenced in this administrative regulation shall not be subject to the provisions of KRS 211.869 or KRS 211.990.

 

††††† Section 11. Incorporation by Reference. (1) Form RPS 180, "TENORM Manifest", 10/2017[7/2017], is incorporated by reference.

††††† (2) This material may be inspected, copied, or obtained, subject to applicable copyright law, at the Department for Public Health, 275 East Main Street, Frankfort, Kentucky 40621, Monday through Friday, 8 a.m. to 4:30 p.m.

 

CONNIE GAYLE WHITE, MD, Deputy Commissioner

VICKIE YATES BROWN GLISSON, Secretary

††††† APPROVED BY AGENCY: October 10, 2017

††††† FILED WITH LRC: October 11, 2017 at 4 p.m.

††††† CONTACT PERSON: Laura Begin, Legislative and Regulatory Analyst, Office of Legislative and Regulatory Affairs, phone (502) 564-6746, fax 502-564-7573, email Laura.Begin@ky.gov.

 

REGULATORY IMPACT ANALYSIS AND TIERING STATEMENT

 

Contact Persons: Jennifer Wolsing, Jennifer.Wolsing@ky.gov, phone 502-564-7905, ext. 3414, and Laura Begin,

††††† (1) Provide a brief summary of:

††††† (a) What this administrative regulation does: This administrative regulation establishes radiation protection standards for the possession, use, transport, transfer, and disposal of Technologically Enhanced Naturally Occurring Radioactive Material (TENORM) related to oil and gas development.

††††† (b) The necessity of this administrative regulation: KRS 211.842(1) states that the Cabinet is the radiation control agency of the State of Kentucky. House Bill 563 passed as emergency legislation in the 2016 Regular Session and created KRS 211.893. KRS 211.893(2) directs the Cabinet to exercise its regulatory authority to ensure the proper management of oil- and gas-related wastes containing NORM.

††††† (c) How this administrative regulation conforms to the content of the authorizing statutes: KRS 194A.050(1) requires the Secretary of the Cabinet to adopt administrative regulations necessary to protect the health of the individual citizens of the Commonwealth and necessary to operate the programs and fulfill the responsibilities vested in the Cabinet. KRS 211.893(2) directs the Cabinet to exercise its regulatory authority to ensure the proper management of oil- and gas-related wastes containing NORM. KRS 211.863 was amended in the 2017 Regular Session to give the Cabinet the authority to regulate as TENORM any naturally occurring radioactive material made more accessible by human activity, or naturally occurring radioactive material that has radionuclide concentrations increased by human activities above levels encountered in the natural state. This administrative regulation contains safe methods of disposal for TENORM of different radioactivity levels related to oil and gas development.

††††† (d) How this administrative regulation currently assists or will assist in the effective administration of the statutes: Generators of TENORM waste related to oil and gas development and those involved with the disposal of TENORM waste will be informed on the safe dispose of radioactive material.

††††† (2) If this is an amendment to an existing administrative regulation, provide a brief summary of:

††††† (a) How the amendment will change this existing administrative regulation: The amendment makes minor clarifying additions in response to comments received during the public comment period.

††††† (b) The necessity of the amendment to this administrative regulation: The amendments made to this administrative regulation were requested by commenters for clarity.

††††† (c) How the amendment conforms to the content of the authorizing statutes: The amendment only makes minor clarifying additions in response to comments received during the public comment period.

††††† (d) How the amendment will assist in the effective administration of the statutes: The amendment makes minor clarifications at the request of commenters.

††††† (3) List the type and number of individuals, businesses, organizations, or state and local governments affected by this administrative regulation: Oil and gas development, processors and transferors of oil and gas development related wastes, specific licensees, landfills receiving oil and gas related wastes, and the Energy and Environment Cabinet as it permits oil and gas operations and the landfill industry. KRS 211.893 encourages the Energy and Environment Cabinet and Cabinet for Health and Family Services to seek input from stakeholders in the development of this administrative regulation, resulting in the reemergence of an oil and gas workgroup. This workgroup is composed of representatives from the Energy and Environment Cabinet, Kentucky Chamber of Commerce, Kentucky Geological Survey, oil and gas industry, landfill industry, environmental advocacy groups, and the Cabinet for Health and Family Services. The public at large has also attended these meetings. This administrative regulation is the result of workgroup meetings and communications.

††††† (4) Provide an analysis of how the entities identified in question (3) will be impacted by either the implementation of this administrative regulation, if new, or by the change, if it is an amendment, including:

††††† (a) List the actions that each of the regulated entities identified in question (3) will have to take to comply with this administrative regulation or amendment: Generators of oil and gas development related waste containing TENORM will be required to obtain representative samples of the load or container, composite the sample if able, and have it analyzed for the activity concentration of Radium-226 and -228. How the waste is disposed of is determined by its radioactivity, whether that be on-site, down-hole disposal, in a facility permitted as a landfill, in a special TENORM landfill, or in a low level radioactive waste (LLRW) facility. Required information must be recorded on a TENORM manifest and the manifest will accompany the waste throughout transfer(s) to the disposal facility. If one were established in Kentucky, a TENORM specific landfill would be required to implement a worker training program and safety program and shall monitor individuals for exposure to radiation for at least two years.

††††† (b) In complying with this administrative regulation or amendment, how much will it cost each of the identities identified in question (3): The tests for activity concentration from a waste sample costs approximately $100.00. The cost of disposal will vary depending on the radioactivity of the waste, but it will be cheaper or the same as current costs as all TENORM wastes must be transferred to a LLRW facility out west in the absence of this regulation. The radiation monitoring a TENORM specific landfill would have to perform would cost about $20.00/person/year.

††††† (c) As a result of compliance, what benefits will accrue to the entities identified in question (3): The oil and gas industry related to development and landfill industry will have reduced liability and will know that following this regulation results in less risk of radiation exposure to the citizens of Kentucky. Depending on the level of radioactivity, some waste will be disposed of on-site, at a regular landfill, or down-hole instead of having to be transferred to another state. There are currently no TENORM-specific landfills in Kentucky, but this regulation may make their development economically feasible.

††††† (5) Provide an estimate of how much it will cost the administrative body to implement this administrative regulation:

††††† (a) Initially: There are no costs to the administrative body associated with this administrative regulation.

††††† (b) On a continuing basis: There are no costs to the administrative body associated with this administrative regulation.

††††† (6) What is the source of the funding to be used for the implementation and enforcement of this administrative regulation: There is no cost to the administrative body associated with this administrative regulation or the enforcement of such. The administrative body will only be involved upon request or complaint, as it currently is in TENORM matters.

††††† (7) Provide an assessment of whether an increase in fees or funding will be necessary to implement this administrative regulation, if new or by the change, if it is an amendment: No increase in fees or funding is associated with this administrative regulation.

††††† (8) State whether or not this administrative regulation established any fees or directly or indirectly increased any fees. No fees are associated with this amendment.

††††† (9) TIERING: Is tiering applied? Yes. This administrative regulation contains different methods of disposal for different radioactivity levels of TENORM waste. This administrative regulation is not applicable concerning TENORM waste with a radioactivity level of five (5.0) picocuries per gram or less.

 

FISCAL NOTE ON STATE OR LOCAL GOVERNMENT

 

††††† 1. What units, parts or divisions of state or local government (including cities, counties, fire departments, or school districts) will be impacted by this administrative regulation? The Energy and Environment Cabinet will be promulgating and amending administrative regulations for the permitting and enforcement of activities associated with this program (oil and gas industries and landfills) and referencing this administrative regulation for radiation standards.

††††† 2. Identify each state or federal statute or federal regulation that requires or authorizes the action taken by the administrative regulation. KRS 194A.050(1) requires the secretary of the cabinet to adopt administrative regulations necessary to protect the health of the individual citizens of the Commonwealth and necessary to operate the programs and fulfill the responsibilities vested in the Cabinet. KRS 211.842(1) states that the Cabinet is the radiation control agency of the State of Kentucky. House Bill 563 passed as emergency legislation in the 2016 Regular Session and created KRS 211.893. KRS 211.893(2) directs the cabinet to exercise its regulatory authority to ensure the proper management of oil- and gas-related wastes containing NORM. KRS 211.863 was amended in the 2017 Regular Session to give the Cabinet the authority to regulate as TENORM any naturally occurring radioactive material made more accessible by human activity, or naturally occurring radioactive material that has radionuclide concentrations increased by human activities above levels encountered in the natural state.

††††† 3. Estimate the effect of this administrative regulation on the expenditures and revenues of a state or local government agency (including cities, counties, fire departments, or school districts) for the first full year of the administrative regulation. How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for the first year? This administrative regulation does not generate revenue.

††††† (b) How much revenue will this administrative regulation generate for the state or local government (including cities, counties, fire departments, or school districts) for subsequent years? This administrative regulation does not generate revenue.

††††† (c) How much will it cost to administer this program for the first year? There are no costs to the administrative body associated with this administrative regulation and the radiation control program is already in operation.

††††† (d) How much will it cost to administer this program for subsequent years? There are no costs to the administrative body associated with this administrative regulation and the radiation control program is already in operation.

††††† Note: If specific dollar estimates cannot be determined, provide a brief narrative to explain the fiscal impact of the administrative regulation.

††††† Revenues (+/-):

††††† Expenditures (+/-):

††††† Other Explanation: