On February 12, 2013, Ohio Governor John Kasich introduced his two-year, $63.2 billion budget, including a provision that would require drillers of oil and natural gas to test their drilling waste for radiation before disposal in Ohio landfills.

The budget proposal, introduced as Ohio House Bill 59, was developed by the Ohio Departments of Health and Natural Resources and the Ohio Environmental Protection Agency.

Under Section 1509.074 of the bill, drilling wastes containing more than certain thresholds for concentrations of technologically enhanced radioactive material (“TENORM”) must either be diluted under regulatory supervision or sent to one of the out-of-state low-level radioactive disposal sites licensed to handle such material.

The proposal sets the TENORM threshold at five picocuries per gram of radium-226 or radium-228. Crushed rock, dirt, and drilling mud used in oil and gas operations may contain naturally occurring radioactive materials (“NORM”), but NORM is exempted from regulation because it can be found anywhere in the environment.

The law may have little practical effect on oil and gas companies drilling in the region, as most oil and gas companies already test materials generated during the drilling process for radioactivity.

“This is in an abundance of caution, but very proactive. We think the volumes will be low, we think the levels will be low,” said Ohio Department of Natural Resources spokeswoman Bethany McCorkle in an interview. “But it’s a proactive measure.”

This article was prepared by Lauren Brogdon (lbrogdon@fulbright.com or 713 651 5375) from Fulbright’s Litigation Practice Group.