Montanans ask why state bears brunt of Bakken waste, while North Dakota reaps riches

(Last Best News) More than a decade into the Bakken oil boom, the state of North Dakota, where the vast majority of the boom is concentrated, still does not have a single landfill licensed to accept radioactive oilfield waste.

Montana does. Oaks Disposal operates a landfill 26 miles northwest of Glendive that has taken in nearly 350,000 tons of oilfield waste of all kinds since it opened in 2013. Two other landfills that could accept radioactive waste, one near Outlook and one near Culbertson, have been licensed by the state of Montana but have not yet opened.

An application for a fourth such landfill, barely five miles from Sidney, is still being evaluated by the state Department of Environmental Quality and faces strong opposition from local residents and all three Richland County commissioners.

That Montana is bearing the burden of potentially dangerous waste from a neighboring state that so far refuses to accept it mystifies many opponents.

Laurel Clawson, who ranches near the proposed landfill near Outlook, said she understands that oilfield waste has to go somewhere, that “you pay for this; nothing is environmentally free. But North Dakota is enjoying the revenue stream and we’re getting the garbage on this.”

Seth Newton, who ranches near the landfill outside Glendive, is frustrated with the DEQ, which he said is “really dragging their feet and moving real slow.” Five years after the DEQ announced it was going to develop comprehensive regulations regarding oilfield waste disposal, Newton said, the process drags on and regulations have yet to be adopted.

Meanwhile, as Montana continues to accept radioactive waste, Newton said, “North Dakota is really good at playing defense and keeping it away.”

Alan Whitford lives on 70 acres outside of Sidney, on land he and his wife chose for its peace and quiet, its beautiful views. And now the state is considering, on a site just across a state highway from their place, allowing a landfill  that would accept hazardous oilfield waste.

“I know exactly what’s going into that radioactive stuff,” said Whitford, who works in the Bakken as an oil lease operator. In addition to a waste stream contaminated by low-level radiation, he said, there would also be desalting chemicals and corrosion inhibitors, all of them “very, very toxic.”

“It’s one red flag after another,” he said. “The whole state should be concerned about it.”

In Sidney, residents are still hoping somehow to prevent the proposed landfill from being built. But they and others around Eastern Montana are also hoping that the DEQ, as it moves toward completing the new regulations on oilfield waste, will heed their concerns regarding water quality, disposal of leachate, the safety of landfill liners and other issues.

“If we don’t do anything and don’t speak up and something happens, shame on us,” Whitford said.

Rick Thompson, supervisor of the DEQ’s Solid Waste Management Section, said the department is serious about adopting regulations, and the process only seems slow because the DEQ has to follow the Montana Administrative Procedures Act.

The proposed rules are intended to fill a regulatory gap, because the Resource Conservation and Recovery Act exempts oil and gas industry wastes from federal regulation. Absent the new regulations, radioactive oilfield waste disposal is covered only by DEQ guidelines, which are not enforceable.

Oilfield wastes contain varying levels of naturally occurring radioactive materials, known as NORM, and technologically enhanced naturally occurring radioactive materials, known as TENORM. The latter consist of radioactive materials found naturally underground but then concentrated and brought to the surface by liquids involved in the hydraulic fracturing process, a process that has made the Bakken so profitable.

Until 2016, North Dakota did not allow the disposal of any radioactive waste that contained more than 5 picocuries per gram of radium-226 and radium-228. Montana allowed up to 50 picocuries, and hence the popularity of siting such landfills in Montana.

Even at the level of 50 picocuries per gram, such materials are not considered hazardous to be around, at least not in the short term, unless they are inhaled or ingested. But the long-term effects of such exposure are not known.

In the early days of the Bakken boom, with no nearby sites to dispose of TENORM, oilfield operators were illegally taking radioactive wastes to regular landfills or just dumping them anywhere they could.

North Dakota raised its limit to 50 picocuries in 2016, but it did not grandfather in any of its “special-waste landfills” that were taking other, nonradioactive oilfield waste. Any landfills that wanted to accept wastes with up to the new 50 picocurie limit had to apply for a modification to their operating permits.

Diana Trussell, manager of the North Dakota Department of Health’s Solid Waste Program, said three parties made application to open such landfills, but one application was later withdrawn. One of the remaining applications, submitted in June 2016, worked its way through the process and was revised as of February of this year.

The other application was submitted last October and was revised as of April. Trussell said draft permits should be issued by this summer or fall, after which they would be subject to public comment. She said she couldn’t say whether or when those proposed landfills might be authorized to accept radioactive waste.

In Montana, the management rules regarding radioactive waste were published last August. After two public hearings were held and about 1,000 comments were submitted, the DEQ extended the initial 60-day rulemaking public comment period another 30 days, to Nov. 17.

Thompson, with the Solid Waste Management Section, said the DEQ is now in the process of rewriting the draft rules. The revised rule package will be released later this year, perhaps as early as September or October, after which there would be another 30-day public comment period and at least one more public hearing.

Thompson said the public comments on the first draft are being considered based on their applicability and whether suggestions can actually be implemented — “All those things that go into making sure we meet our constitutional requirement of a clean and healthful environment.”

People concerned about having such landfills in Montana were encouraged to see that the new rules would be applied to existing facilities, in this case Oaks Disposal near Glendive. They were also pleased that drill cuttings, fracking sands and drill mud would be included in the definition of what constitutes TENORM waste, that landfills would have to screen all incoming loads and that more thorough testing and screening would be required specifically for filter socks, which are used to strain out solid wastes and to keep wells from becoming clogged with sediment when wastewater is injected underground.

But there are also major concerns with the proposed rules, all of which were brought up in the public hearings and written comments. It remains to be seen how those concerns will be addressed in the final draft of the new regulations.

Newton, the farmer who lives near the Oaks Disposal site outside Glendive, said he would like to see 100-year-flood preparedness required at all TENORM landfills, as well as strict siting stipulations that would place such facilities well away from creeks, rivers and other water sources.

Whitford, who lives near the proposed landfill outside Sidney, said that was one of his big concerns, too.

“I’ve been here 30 years, and I’ve seen a lot of 30-year storms,” he said.

Newton said the biggest issue might have to do with water-quality inspections. The draft rules call only for annual sampling, and do not require the use of independent third parties to do the sampling and analysis. Newton would like to see the testing done by independent parties on a quarterly basis.

“Once a season,” he said. “I sure don’t think it would be asking too much. I’m not trying to take anyone’s business or job or anything, but I do think it should be done right.”

Thompson did not want to go into detail on what the revised rules might include, but he did say that the most recent rewrite would give the DEQ the authority to require more frequent testing. He also defended the current system of allowing landfills to hire the people who monitor and test on-site water.

The contractors under the current system would be considered independent third parties, he said, and once a water sample is collected it is subject to a chain of custody that is consistent with national standards.

“It’s not something a facility can short-circuit,” he said, and experts at the DEQ are assigned to study the results submitted by those contractors. “They can detect if something is awry,” he said.

Newton also has concerns about allowing landfills to accept liquid wastes, not just solids, liquids being harder to contain and much more likely to spread contaminants. That concern has only grown as he’s watched the Oaks Disposal site for the past five years.

There have been numerous spills and overturned trucks, he said, and he and his neighbors witnessed roads and rights of way coated with waste that had the look and consistency of “gray mushroom soup.” Trucks bringing waste to the landfill weren’t even covered with tarps until a nearby farm family sued the DEQ, he said.

“Something as simple as a tarp? Every farmer tarps his wheat when he takes it to town,” Newton said. “It’s hard to describe how low rent of an operation it is.”

Newton and others also want the new rules to deal more thoroughly with the disposal of “TENORM contaminated equipment,” which would be allowed under the draft rules.

“There’s the threat of all that metal puncturing the liner,” he said. Suggestions to the DEQ have include building separate areas for metal wastes, or specially cushioned disposal areas.

Concerns about the integrity of landfill liners also come into play in relation to leachate disposal. The draft rules would allow the recirculation of leachate by spraying it back atop the waste. In the public comments, some people called for having a requirement to remove, treat and dispose of leachate if it accumulates to a depth and weight that threatens to harm the liner.

Meanwhile, back in Sidney, opponents are fighting the location of the proposed Yellowstone Disposal landfill, hoping to persuade the DEQ that the site is too close to town, too close to residential neighborhoods, too close to water supplies.

Whitford said the Richland County Concerned Citizens Council, formed by local residents, has held public meetings, rallied opponents and raised funds to hire a hydrologist and a lawyer to aid them in their fight. Whitford lives in a subdivision with 34 other houses in it.

He is the certified water manager for the subdivision, managing two wells — one that serves his large acreage and one for all the other residents’ household needs. They are afraid the Yellowstone Disposal landfill could deplete the aquifer the subdivision relies on, because it will need water to spray on the landfill itself and on roads in and around the site.

More than anything, though, Whitford said, he and his neighbors are worried about huge losses in property value if a radioactive waste site goes in next door. At the moment, he said, his property and improvements are worth between $800,000 and $900,000.

“If they put that in there, I won’t even be able to sell it,” he said.

In March, property owners around the site filed an application to create a citizen-initiated zoning district, which would allow them to draw up regulations ensuring that the landfill is operated correctly and with minimal effect on surrounding property.

Unlike the situation in Stillwater County, where the County Commission has been fighting the creation of a citizen-initiated zoning district every step of the way, the Richland County Commission unanimously approved the request.

At that commission meeting, the Sidney Herald reported, Commissioner Duane Mitchell said, “I think we all agree the location sucks.”

Opponents were heartened in April, when the Federal Aviation Administration notified Yellowstone Disposal that it was denying its request for an exemption to a rule prohibiting municipal solid waste landfills from being within six miles of an airport, because of concerns with birds being drawn to the site and interfering with air traffic.

Yellowstone Disposal had proposed to build a large municipal landfill as a well as a separate section that would accept oilfield waste. Chris Kreger, an independent environmental consultant working for IHD Solid Management, the company that would operate the Sidney landfill, said IHD has asked the FAA to reevaluate its decision.

Kreger said the FAA determination “is an interpretation of the regulations, we believe an incorrect version of the regulations.” He said the municipal landfill in Williston, North Dakota, is just 2½ miles from the airport, and unlike Williston, he said, the landfill in Sidney would not even be in alignment with the runway.

In any case, he said, IHD plans to proceed with the landfill. Only a small corner of the proposed site is within six miles of the airport, he said, so it could be shaved off without affecting operations. Or, the site plan could stay the same and the regular landfill would accept only construction and demolition waste, which would not be subject to FAA rules.

Whitford said he has joined the Billings-based Northern Plains Resource Council as a result of his efforts to deal with the proposed landfill. As an oilfield worker, he said, it was a little strange to find himself in agreement with the NPRC, whose stances on many other issues he doesn’t endorse. On this one issue, he said, the NPRC has been an invaluable resource.

Clawson, the farmer up near Outlook, expressed similar feelings. In particular, she said, she thought the NPRC was wrong to oppose the Dakota Access Pipeline.

“But on this issue, they’ve done their homework,” she said. “They seem very measured. I really, really appreciate the research they’ve done.”

Ed Kemmick has been a newspaper reporter, editor and columnist since 1980. Except for four years in his home state of Minnesota, he has spent his entire journalism career in Montana, working in Missoula, Anaconda, Butte and Billings. "The Big Sky, By and By," a collection of some of his newspaper stories and columns, plus a few essays and one short story, was published in 2011.