Ignoring the input of thousands of Montanans, Republican legislators have halted a rule that would limit the amount of radioactive oil and gas waste allowed in state landfills.

On Monday, the interim Legislative Environmental Quality Council met online to try to learn about the issue of technologically enhanced radioactive material, called TENORM, that the oil and gas industry produces and must dispose of.

The meeting was hastily called after Sen. Mike Lang, R-Malta, suggested last week that the council should weigh in on the rule that the Department of Environmental Quality was prepared to finalize in May.

That rule would have limited each truckload of radioactive material entering a landfill to 50 picocuries of radiation per gram. The rule also limits the landfill itself to an average of 50 picocuries per gram to make sure it doesn’t harm landfill workers or those living adjacent to landfills.

“We all want to do due diligence and I’m not saying anybody hasn’t. So I apologize for any work that’s been created,” Lang said. “We’ve all received a lot of emails the last couple days and that’s fine. But one of the comments I heard is this is a derailment of this process. This is not a derailment. It may be on a sidetrack.”

Ten of the 12 Montanans who called in to Monday’s council meeting definitely considered it more than a sidetrack.

Many of them ranch in eastern Montana near one of the five landfills that have DEQ permits to accept radioactive waste and have worked with the DEQ for years to get an acceptable rule in place. They were a small subset of the thousands who have sent in comments over the past four years as the public process has endured stops and starts.

TENORM is produced when drilling and fracking brings up rock and sludge that are naturally radioactive from deep underground. The material can be concentrated, which causes the amount of radiation to increase. Right now, slightly radioactive waste can come to Montana, but more radioactive material has to go to other states, such as Idaho.

Laurel Clawson of Plentywood became involved in 2017 and the things she learned made her overcome her usual preference of avoiding anything related to government. She’s not opposed to some waste but as an agricultural producer, she thinks it’s a private property issue since the waste can end up affecting the water if runoff or leakage from damaged liners enters the ground.

“This draft is probably not the one that Montana Petroleum Association would like to see finalized. Many parts don’t make me or a lot of other people happy either, but I think that is the mark of a decent compromise,” Clawson said.

“I’m willing to accept the current draft because it brings us closer to parity with North Dakota’s rule. That is so vital to prevent us from becoming a cheap and easy dump ground for surrounding states that had the foresight to implement more stringent rules.”

Previously, the DEQ had no rule and the federal government refused in 2016 to set TENORM limits, leaving it up to the states. DEQ had guidance limiting the concentration to a 50 piCu/gm, and that was the limit supported by a stakeholder working group. So DEQ proposed that for a rule in August 2017, received more than 1,000 comments and then the process stalled.

The working group met again in 2018, but when DEQ put the rule out again in August 2019, the truckload limit had jumped to 200 piCu/gm, four times the original concentration, at the request of the Montana Petroleum Association.

Again, the proposal received more than 500 comments in strong opposition to the increase. So, DEQ released a supplemental rule in January to return the truckload limit to 50 piCu/gm.

The comment period on that proposal just closed and the rule could have been finalized with that limit.

On Monday, DEQ director Shaun McGrath said Montanans’ two primary concerns were Montana becoming a dumping ground and keeping landfills within limits. He said there is no proven method to spread truckloads of higher radioactive waste around to keep the landfill below 50 piCu/gm so enforcement would be difficult.

All the states around Montana except Idaho have limits of 50 piCu/gm or less. So if Montana’s limit is less conservative, it will get all of North Dakota’s oil and gas waste and the costs that come along with it, and without the benefit of the oil revenue, said Sidney rancher John Mercer.

Many in Missoula County opposed the 200 piCU/gm limit, worried about threats to the Clark Fork aquifer if something went wrong at the Republic Services landfill, which has a TENORM permit.

“Missoula has not accepted TENORM yet, but setting inconsistent standards among states and, in fact, higher gate limits would in effect create an economic incentive that would place an unfair burden on Montana residents and Missoula County residents,” said Missoula City-County Environmental Health supervisor Travis Ross.

The only two commenters on Monday who asked the EQC to step in were Montana Petroleum Association executive director Alan Olsen and Robert Morris, health physicist for Oaks Disposal near Glendive, the only landfill actively accepting TENORM, three-quarters of which comes from North Dakota.

“Rule making is complex,” Olsen said. “We believe DEQ has the responsibility to work through complex issues and incorporate solutions into those complex problems. We ask for an informal objection, so DEQ can go back and find a solution and include them in the rule as originally presented.”

While many of the commenters knew their subject, it was clear the legislators were completely unfamiliar with TENORM in landfills. They’d received handouts only a week before. Still, they voted 10-6 to informally object to the rule, which creates a six-month delay.

A number of Republicans said they needed more time to look into things. Some asked why it was so hard to mix higher levels of radiation into the landfill. One said he took things to the dump all the time and they told him where to put it. Another, council member John Brenden, said it shouldn’t be any different than mixing qualities of grain.

But several Democrats urged their colleagues not to ignore the vast amounts of time and energy that many Montanans have already put into learning about, working and commenting on the issue.

“We’ve run through the (public process), we’ve had a lot of community members especially from eastern Montana that have put years into this process and we’re about to put an end to that. This is not very motivating to the public, to participate in the process and then have the rug pulled out at the last moment just because everybody hasn’t been playing along,” said council member Rex Rogers. “As far as blending, we’re not blending 15% wheat with 13% wheat - we’re blending radioactive material.”

Sen. JP Pomnichowski, D-Bozeman, questioned why the EQC is making a special effort to review this one rule.

“One rule out of 100-some pages. What we’re not doing is pouring over every other proposed rule that will take effect according to the Administrative Procedures Act,” Pomnichowski said.

Lang said the council didn’t know about the issue but should know more.

During his 2016 run for state senate, according to followthemoney.org, Lang received almost $2,000 in campaign contributions from the Montana Petroleum Marketers Association, ExxonMobile, BP North America, Denbury Resources and the Wilks family, who live east of Lewistown and made their money in fracking.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.