TENORM Regulation in the United States of America post-West Virginia vs. EPA

The regulation of technologically enhanced naturally occurring radioactive materials (TENORM) in the United States of America consists of fragmentary rules split between the federal and state governments. The US Environmental Protection Agency (EPA) has recognized the complex nature of TENORM regulation but has not issued explicit TENORM rules at the federal level. Some states have enacted their own TENORM statutes and regulations to fill this gap, while others claim the authority to regulate TENORM under their general radiation protection regulations. The Supreme Court of the United States (SCOTUS) ruling in West Virginia vs. EPA created a new lens through which environmental regulations should be viewed and may have implications for the regulation of TENORM. This paper presents an overview of West Virginia vs. EPA, the major questions doctrine on which SCOTUS based its opinion, and how it might apply to TENORM regulations at the federal and state levels. Two states, one with explicit TENORM regulations and another with only general radiation protection statutes, are considered in the context of a hypothetical legal challenge to TENORM regulations. The role and impact of West Virginia vs. EPA in administrative law is still to be determined, but it does prompt an opportunity to conduct a new, more thorough review of TENORM regulation at the federal and state level.