The North Dakota Health Council violated state public meeting law during the approval process for rule changes that allow for higher radioactivity levels in oil-field waste, state Attorney General Wayne Stenehjem concluded in an opinion Tuesday.
According to Stenehjem, the council failed to provide proper public notice for an August 2015 meeting in which the body, which advises and governs the state Department of Health, approved increasing annual radiation-level allowances for state landfills from 5 picocuries per gram of material to 50 picocuries.
North Dakota law requires public notice at the same time that the governing body is notified, with the council being the governing body in this case. Stenehjem’s opinion said the council knew it would hold the August meeting about three months in advance but only provided 13 days of notice. As a result of the violation, Stenehjem said the council must provide a copy of the meeting’s minutes to the individuals who raised the issue: environmentalists Don Morrison of the Dakota Resource Council and Darrell Dorgan of the North Dakota Energy Industry Waste Coalition.
Genny Dienstmann, council vice chair, said by email Thursday that the body complied with Stenehjem’s corrective measure and will follow his guidance for future meetings.
Health Department officials have said the heightened picocurie levels, which went into effect Jan. 1, will help curtail illegal waste disposal and mismanagement of TENORM, or Technologically Enhanced Naturally Occurring Radioactive Material. Included in the rule change is the requirement that TENORM producers register with the department, allowing the agency to track the waste from production to disposal. The increase in waste levels at local landfills is said to make in-state disposal more affordable.
Morrison, Dorgan, and other environmentalists have argued that the Health Department is bending to the will of the oil and gas industry. TENORM levels have risen in North Dakota, particularly in the Marcellus Shale and Bakken Shale formations, with increase of oil and gas exploration. TENORM is typically found in pipe scale, tank sludge, or filter socks. North Dakota in recent years has seen instances of illegal dumping of filter socks.
During a telephone interview Thursday Morrison said Stenehjem has used a “wet noodle” approach when it comes to enforcing the law against the oil industry. Stenehjem’s remedy for the council failure, he said, is one example of the state’s lax regulatory approach for the oil industry. Morrison cited instances in which heavy fines levied against companies for illegal dumping have been slashed dramatically.
Dienstmann described the council’s failure as “inadvertent,” adding that it’s not an example of anything. “It was simply an oversight,” she wrote.
In November 2014 the state Department of Mineral Resources lowered an illegal dumping fine against Zenith Produced Water LLC from $800,000 to $20,000. According to the Washington Times, the department said it’s common practice to fine companies around 10 percent of the original penalty.
“It was good that he said we were right as far as the state Health Council violated state law,” Morrison said. “But certainly his remedy for that was pretty much par for the course of ‘we’re not going to do anything about it.’”
Morrison said his side disagrees with the landfill rule change itself, and had there been proper public notice the sentiment at the August meeting might have been different.
“We don’t think the people on that Health Council understood the ramifications of these issues,” Morrison said, adding that the group is unsure what the next step is, whether it’s legal action or not. “What really is at issue here is the people who live in the Bakken are not having their lives hurt and their livelihoods hurt because of a lax regulatory environment.”
