James Bruggers

Louisville Courier Journal

The Courier-Journal obtained email discussions from the state of West Virginia.

Emails shed light on how Kentucky regulators learned of radioactive waste dumping at two landfills.

West Virginia says it was not obligated to stop shipments even though it knew they were illegal.

Environmental attorney says the situation shows "the process is broken."

The tip arrived in a phone call from a West Virginia bureaucrat to a staffer in the Kentucky Cabinet for Health and Family Services - radioactive oil-and-gas drilling waste was headed our way.

Kentucky Energy and Environment Cabinet officials were notified that same day, July 21, 2015, according to emails obtained by the Courier-Journal under West Virginia's open records law.

But it took the Energy Cabinet seven months to alert Kentucky landfill operators to be on the lookout for illegal shipments of radioactive drilling waste and that they should not accept any it.

The Health Cabinet waited another three weeks - until March 4, two days after the Courier-Journal first reported the dumping - to order the company alleged to have quietly brought the waste into Kentucky to stop, and for landfills to stop accepting it.

By then, from July through November, state officials claim, more than 1,000 cubic yards of the waste from fracking operations in Ohio, Pennsylvania and West Virginia had made its way to Blue Ridge Landfill in Estill County, hauled in by Advanced TENORM Services of West Liberty, the records show.

There, state officials feared that landfill workers, customers and maybe students at two nearby schools, might have been exposed to dangerous levels of radiation, the emails show. Later, state officials found out, even more radioactive waste had also been sent to the Green Valley Landfill in Greenup County, though they've said it wasn't as "hot" as the concentrated waste sent to the Estill dump.

The emails from West Virginia shed new light on how Kentucky regulators first learned of the dumping. They provide a window into how they eventually responded, and their level of concern - which was significant. They show a months-long gap between the first warning of a potential problem, and the eventual regulatory action by Kentucky agencies charged with safeguarding the public.

"It's not a matter of blame," said Louisville attorney Tom FitzGerald, director of the Kentucky Resources Council, which has also been looking into the dumping. "It's a matter that the process is obviously broken. The agencies were not effectively communicating, and the bottom line is you have a bunch of exposed workers."

When asked about the lack of a response in July, agency officials now point fingers at each other.

In a written statement from spokesman Doug Hogan, Health Cabinet officials said they responded to that July 21 call by telling West Virginia officials that the waste was not allowed in Kentucky, and then informing Energy Cabinet officials "so that they could take action as needed, as this particular issue related to their landfill licensees."

Only after a detailed investigation starting in January, Hogan said, did the Health Cabinet have the legal authority to issue cease and desist letters to Advanced TENORM Services and the two landfills.

For their part, Energy Cabinet officials reiterated what they've said in all along - that it's the Health Cabinet that has the responsibility for radioactive wastes through an agreement with the state of Illinois.

"Should the Division of Waste Management have done more? I suppose one can argue maybe we should have," Tony Hatton, the division's director, said. "I don't know. But the reality of it is, this material is managed by the Cabinet for Health and Family Services, and they told the West Virginia regulators it was strictly forbidden."

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W.V. didn't block waste

The Energy Cabinet has, since January, coordinated its investigation with the Health Cabinet. It declined to make its correspondence available, citing exemptions under the Kentucky Open Records law involving ongoing investigations.

That correspondence from West Virginia puts a big burden on the Health Cabinet, FitzGerald said.

"I've not seen any evidence that (the health cabinet) told Advanced TENORM Services that what they were planning to do was illegal," he said. "That to me is inexcusable."

FitzGerald said the Energy Cabinet also could have done more early on, as could have West Virginia.

West Virginia's Bureau for Public Health "does not regulate where haulers dispose of material out of state," countered Toby Wagoner, spokesman for that agency. "Our notification to Kentucky was as a professional courtesy only."

The emails also show how Kentucky officials acknowledged being handicapped by a lack of regulations for a type of waste generated by hydrologic fracturing in oil-and-gas-rich areas northeast of Kentucky.

For example, Christopher J. Keffer, the radiation health specialist in the Health Cabinet, took that first call on July 21 from Jason Frame, a radiation specialist with West Virginia's state radiation program, alerting Kentucky to the pending shipments of waste.

That same day, Keffer bumped the matter up the ladder to Curt Pendergrass, a radiation health supervisor, detailing Frame's understanding of Advanced TENORM Services Kentucky dumping plans - and telling Pendergrass he had told Frame about Kentucky's lack of regulations for the waste.

Hours later, Pendergrass wrote to Frame, copying three Energy Cabinet officials - one with an incorrect email address - acknowledging that Kentucky "does not currently have any regulations dealing with the control and disposal of (radioactive) waste generated in the oil and gas industry from hydraulic fracturing."

Pendergrass, however, also told Frame that Kentucky does have laws on the books banning the importation of those waste materials stemming from an agreement between Kentucky and Illinois.

Kentucky takes action

Eventually, however, the Energy Cabinet found a way to issue notices of violations to the two Kentucky landfills.

Those violation notices sent March 8 claim the landfill operators failed to accurately characterize the waste for what it was, allowing what's considered an illegal release of a hazardous material into the environment. They were also cited for poor record keeping and other violations.

For their part, the landfills have insisted they were not informed by anyone of any illegal radioactive waste shipments.

Health Cabinet assistant counsel Jennifer Wolsing's March 4 letter made public on March 8 claims BES LLC, doing business as Advanced TENORM Services, imported, collected, transported and/or deposited radioactive oil and gas drilling waste in several Kentucky counties since at least June 2015. The Health Cabinet has threatened $100,000 per incident fines, and potential criminal charges and sent its order to Cory Hoskins of West Liberty.

About two weeks later, Kentucky Attorney General Andy Beshear said his office has opened an investigation.

The Courier-Journal has been unable to reach Hoskins. Secretary of State business records show he recently worked with attorney W. Logan Wilson of Bingham Greenebaum Doll in Lexington. Wilson did not immediately return a request for comment.

That first July 21 email from Keffer to Pendergrass identified a third location where workers may have been exposed to the radioactive waste.

State officials have said West Virginia-based Fairmont Brine Processing produced the waste in a method that increased its radioactive intensity. Keffer's email said it was to be sent to an unidentified location in Ashland where the waste was to be solidified, before being sent to Estill County.

Hatton on Thursday declined to identify the business, other than to describe it as the location of a trucking company, and that it had been inspected jointly by his agency and the Health Cabinet.

The emails show West Virginia's Jason Frame decided to check back in with the Health Cabinet on Jan. 19, telling Pendergrass the hauler might still sending waste to Kentucky.

Since then, Hogan said, the Health Cabinet "has been actively engaged in a whirlwind of activities," including radiological surveys at the landfills, schools and trucking companies, along with interviews.

The Health Cabinet, Energy Cabinet and its West Virginia counterparts "continue to piece together details on this situation," Hogan said.

Official "floored" by news

West Virginia did not provide a response to that email, but in January and February, after Hatton said he said he learned about the alleged dumping from a new and different unidentified tipster, both cabinets were investigating, the records show, and Frame was being thanked for his assistance.

Sometimes the emails expressed alarm.

On. Feb. 11, George Partridge in the waste management division wrote to the Health Cabinet's Pendergrass, warning that exposure could eventually give people cancer. Local and state officials have since said there is no current risk to students at Estill County High School and Estill County Middle School - and that they don't believe there ever was, based on monitoring this winter.

But the waste contains radium 226, with a half-life of 1,600 years, the time it takes for half its radioactivity to decay. Municipal landfills typically have protective liners guaranteed for 30 or 40 years. West Virginia officials have said the waste might have had a radioactive intensity of 1,900 picocuries per gram, or a level nearly 400 times as high as the U.S. Environmental Protection Agency generally sees as safe.

The emails indicated West Virginia didn't want the stuff, and that another waste hauler had rejected it as too radioactive.

By the end of January, Partridge was preparing for field inspections at the landfills.

"I was so floored with the news," Partridge wrote to Frame on Jan. 29, "I want to be sure I confirmed the understanding we have of the situation before we move forward with site visits.

Reach reporter James Bruggers at 502-582-4645 and at jbruggers@courier-journal.com.

Oil and gas workgroup

Background: Gov. Matt Bevin on Wednesday signed into law House Bill 563, which seeks to make sure the state is protected from radioactive waste produced during oil and gas drilling. A 25-member group tasked with looking at existing regulations and recommending potential changes starts work in May.

When: 1 p.m. May 12.

Where: Division for Natural Resources, 2 Hudson Hollow Rd., Frankfort.