The Ohio Senate released its version of the state budget bill—Am. Sub. HB 59—on June 4. As previously reported by the Shale Blog, the Governor’s original budget proposal included provisions for the disposal of TENORM (Technologically Enhanced Naturally Occurring Radioactive Material). The Ohio House removed those provisions from the budget bill amid strong opposition from both industry and environmentalists. Well, the Senate’s omnibus amendment put TENORM back in the budget.

The Senate’s TENORM provisions are similar in many respects to those in the Governor’s budget proposal. The Senate’s bill contains the following definitions of NORM (Naturally Occurring Radioactive Material) and TENORM:

• NORM: material that contains any nuclide that is radioactive in its natural physical state, not including source material, byproduct material, or special nuclear material
• TENORM: naturally occurring radioactive material with radionuclide concentrations that are increased by or as a result of past or present human activities, not including natural background radiation, byproduct material, or source material

The Senate’s budget bill also includes various provisions regulating the disposal of TENORM and it distributes regulatory authority among three state agencies. Under the Senate’s bill:

• Well operators generally must sample any wastes potentially containing TENORM for radium prior to shipping the wastes off-site.
• Well operators do not, however, have to sample wastes for radium if:
  • The material is reused in a horizontal well
  • The material is disposed of at an injection well for which a permit has been issued under Ohio law
  • The material is used in a method of enhanced recovery for which a permit has been issued under Ohio law
  • The material is transported out of Ohio for lawful disposal
  • Solid waste landfills may not receive TENORM for disposal if the waste contains radium-226 or radium-228 equal to or greater than 5 picocuries per gram above natural radiation levels.
  • Solid waste landfills may accept TENORM containing radium-226 or radium-228 above natural levels for “purposes other than transfer or disposal,” so long as the landfill operator maintains all necessary authorizations.
  • Solid waste facilities may not receive or dispose of TENORM from drilling operations without first receiving representative testing results to determine compliance with Ohio law.
  • Ohio’s Departments of Natural Resources, Environmental Protection, and Health share regulatory authority over the disposal of TENORM.

The Senate’s TENORM provisions were discussed at BakerHostetler’s recent Shale Symposium. Ben Pfefferle—a partner in BakerHostetler’s Columbus office—predicted that the Senate’s provisions would create confusion (subscription required) as to which state agency will in fact regulate the management and disposal of TENORM and other drilling wastes. Rick Simmers—chief of ODNR’s Division of Oil and Gas Resource Management—expressed confidence that the state agencies involved could effectively administer the system.  According to Simmers, the Senate’s TENORM provisions will help coordinate the efforts of the three agencies identified in the bill.

The budget bill will be considered by a joint conference committee comprised of House and Senate members, perhaps as soon as June 13. The bill must go into effect with Governor Kasich’s signature by the start of the fiscal year, July 1. The effective date of the TENORM provisions will likely be delayed, however, so that regulatory agencies may promulgate rules implementing the provisions.