Williams County Commissioners have voted to deny an amended conditional use permit for a special use landfill seeking to become the first in the state to handle TENORM waste.
The motion stipulated that Secure Energy Services will have the right to reapply for an amended conditional use permit once the county has had time to pursue further information on additional statewide restrictions and regulations it may want for such facilities.
The county also instituted a moratorium of 12 months on any pending or future applications for TENORM facilities, to give commissioners time to consult with other county commissioners in oil and gas communities, as well as with state officials, industry representatives, and other stakeholders.
The board made its decision after reorganizing during its regular session on Tuesday, Dec. 3. The new chair is Commissioner Steven Kemp and vice chair is Commissioner Corey Hanson.
Ensuring economic viability a key
Williams County Commissioner David Montgomery, in making a motion to deny the permit, said a chief concern of his is ensuring that the number of TENORM facilities doesn’t exceed the demand for them.
“We have a bunch of abandoned wells that the state has already neglected,” he said. “What happens, if all of these facilities are fighting for that same piece of pie, what happens with a bankruptcy? If one of these is abandoned, how long will it take the state to step in and reclaim them? I’m with Beau (Anderson), I have a lot of questions.”
Montgomery said he has called commissioners of the other four big oil and gas counties, who told him they have many of the same questions and concerns as Williams County commissioners.
“I’m not one for kicking the can down the road,” he said. “But this is too important a decision to make. We need discussions with other oil and gas counties in western North Dakota on how they feel and if they have different ideas. We need a meeting with them and the state individuals, whether it is the legislators, who approved this without any representation from oil and gas producing counties, or the industry and the other counties involved.”
Montgomery suggested an upcoming meeting on roads, being put together by the Western Dakota Energy Association, might be an ideal opportunity for county commissioners in the Oil Patch to discuss TENORM facilities.
Commissioner Corey Hanson, meanwhile, said he had similar concerns as Montgomery.
“Plus, if we say yes here, do we just become the site, like in Montana, where everyone in all four counties is bringing TENORM wastes to,” he said.
He would prefer TENORM wastes don’t get trucked long distances, for safety reasons. He feels it would be best if each county had a facility so that one county doesn’t end up the dumping ground for the rest.
Commissioner Barry Ramberg, meanwhile, said he still believes strongly that North Dakota needs to figure out its own solution for low-level radioactive TENORM wastes.
“We are all benefitting from the oil,” he said. “We need to figure out how to take care of this ourselves.”
Montgomery said he agrees with that, too, but that there are parameters that need to be worked out first.
Secure agrees to meet higher standardsThere was also extensive discussion about added restrictions for the conditional use permit.
Carey Goetz, with the Braaten law firm, which is representing the Borrud Family Farm and other families living in the vicinity of Secure Energy’s special waste landfill in Blacktail Township, said her clients want the restrictions on the conditional use permit so families living nearby can sue for a public nuisance, in the event that becomes necessary.
“The county wouldn’t have to enforce this,” she said. “I know that (Secure Energy Services representative Kurt Rhea) said that DEQ requires some of these things already, but we are asking for redundancy.”
Rhea, meanwhile, outlined several areas where the Secure Energy is willing to meet a higher standard than required. The company would agree to do that even if the items are not listed on the conditional use permit itself, he added.
Among these, the company is planning to purchase a more expensive portal monitor, one that can detect a “hot spot” hidden inside the material as well as detect particular species of radiation.
That unit costs about $40,000, as opposed to the minimum model cost of about $8,000.
It’s not the county’s burden
Hanson, however, expressed concern about the idea of things like pit liners coming back to the commission for approval.
“We are not liner experts,” he said. “I can look at it and think it looks good.”
Along those same lines, Kameron Hymer, director of Development Services also weighed in. The addition of so many customized restrictions for these types of facilities could become a pattern on future permits, he suggested. In that case, the associated record keeping would quickly become confusing, with lists of what has to be collected each month and each quarter from each facility.
“They’re saying we wouldn’t have to interpret it, but it makes us into record keepers,” he added.
Hymer said he would respect commissioner’s decision either way, but added, “If we are unsure that this is the correct process, it needs to change at the state level. County employees are not qualified to look at this and understand what it is.”
Karen Prout, Williams County attorney, said commissioners can add whatever reasonable conditions they wish, but added that she agrees with Hymer.
“One of the things that struck me is that (the state) has a host of engineers and scientists that look at the reports to verify the reports and the numbers,” she said. “We don’t have that.”
An additional concern would be if companies fail to file some part of the record stipulated in the CUP, that in itself becomes a violation.
“That would be kind of a minor thing to revoke a permit for,” she said. “And it would require a lot of stuff (for the county) to monitor.”
As far as the county approving liners for the facility, neither staff nor commissioners have that sort of expertise.
“So I’m just concerned about putting these conditions on there, especially since most of them, or all of them, duplicate what the state requires.”
The commission’s process is supposed to be about land use, Prout added.
“We are not supposed to get into the technical aspects,” she said. “Yes, you can put conditions on there, but then you are charged with enforcing them.”
Prout added that Braaten’s clients can bring a public nuisance suit without having the stipulations on the CUP. There are already provisions in North Dakota Century code that will allow them to do that.
Anderson agreed with Hymer’s concerns about the additional restrictions.
“I want the public to know this is not an easy situation,” he added. “It’s not an easy decision to make. If you ever run for public office, think about that. Just wanted to get that out there before we are demonized on Facebook for whatever we do.”
Cradle to grave responsibility
Julie Keller, in the audience, called out from the audience to ask if “cradle to grave” responsibilities are adequately addressed. Her comment was out of order — but was addressed anyway.
Rhea told commissioners that Secure Energy is required to document who the generator of the waste was, as well as record the specific site and location that it was brought from upon intake. The records also include the exact cell the material went to.
“All the operators have what is called a general license by virtue of doing business in the state,” he said. “They are required to follow the TENORM regulations and they own the responsibility from cradle to grave. So yes, they have full responsibility and Secure has the records to where they can be held accountable for it.”
The state keeps all those records, and, so far, they go back as far as the 80s, according to Diana Trussell, the solid waste program manager for the Department of Environmental Quality’s Division of Waste Management.