Whoa, why no criminal charges in dumping of radioactive fracking waste?

Attorney General Andy Beshear’s decision not to pursue criminal charges in the illegal dumping of radioactive fracking sludge in a solid-waste landfill in Estill County is disappointing.

Beshear did recommend pursuing civil damages and penalties “to the fullest extent of the law” against the owners of a West Liberty company, Advanced TENORM Services, for “flagrant violations and reckless disregard for the safety of the community.” Beshear urged the Cabinet for Health and Family Services, which is responsible for controlling radiation hazards, to “levy the harshest civil penalties available under Kentucky law against those responsible in this troubling case.”

Perhaps the AG’s criminal prosecutors decided that gaps in state and federal regulation of radioactive fracking waste left loopholes big enough for a defendant to wriggle out of felony charges which could carry a prison term as well as fines.

There are gaps in both state and federal oversight that should be tightened to protect the environment and public health from the enormous amount of waste, much of it radioactive, that is being generated by new oil and gas drilling techniques.

But the ban on importing low-level radioactive waste into Kentucky for disposal is already clear and indisputable — and has been for a long time.

It’s inconceivable that a Kentucky company that billed itself as expert in managing radioactive drilling waste could have been ignorant of the Kentucky law. After all, the “TENORM” in the company’s name stands for technologically enhanced naturally occurring radioactive material.

If there’s any doubt about what the company knew and when, consider environmental lawyer Tom FitzGerald’s testimony before a legislative committee last week about a possible smoking gun. FitzGerald said that in April 2015, months before the waste was trucked to Estill County, a state official emailed an Advanced TENORM executive links to the laws and regulations that prohibit importing low-level radioactive waste into Kentucky from any state but Illinois. (Kentucky and Illinois are part of a regional compact.)

Intentionally violating this prohibition is a class D felony.

Also, the manifests accompanying the waste to the Blue Ridge Landfill in Estill County described it as “exploration and production soil and debris.” In fact, it was radioactive recycled drilling wastewater sludge, including some that testing had shown was so hot that it more properly belonged in a landfill designed to contain low-level radioactive material.

Because such landfills are few, far between and expensive, dumping 2,000 tons of the sludge in a municipal waste landfill in Estill County saved someone a lot of money.

And now it’s costing Estill County residents a lot of sleep.

The manifests also show that drilling waste generated in Ohio was dumped in Estill County.

Whether the misleading manifests amount to criminal fraud is something that an Estill County grand jury might want to consider.

And, under Kentucky statutes, the Cabinet for Health and Family Services could ask Beshear to reconsider pursuing criminal charges.

Estill County residents, worried about waste that will be radioactive for more than a millennium, did win an assurance from Energy and Environment Secretary Charles Snavely that the public will get a chance to review and comment on any settlement or remediation proposal the state reaches with the landfill owner, Advanced Disposal.

State testing has shown no current danger from the low-level radioactive waste. The risk from exposure was much greater for the workers who handled it at the landfill, where it was spread as cover. Long-term, the danger is that radioactive leakage could pollute groundwater and streams.

Now that the AG’s office has finished its investigation, a group called Concerned Citizens of Estill County and others will be able to use the Open Records Act to get more information about how their home became a dump for illegal out-of-state waste and the state’s response.