Environmentalists suing the North Dakota Health Council over rules it improperly adopted in 2015, which boosted landfill radiation-level allowances, have asked the court for attorney’s fees and $1,000 in damages.
The nongovernmental Dakota Resource Council and North Dakota Energy Industry Waste Coalition sued the council in an attempt to vacate the rules, which were first adopted without proper public notice in August 2015. State Attorney General Wayne Stenehjem agreed with the plaintiffs in March, saying the Health Council should have allowed three months’ public notice for the 2015 meeting, instead of 13 days. The Health Council subsequently held a do-over meeting the following August, in which the body provided proper public notice and re-ratified the rules.
State officials say the new rules deter illegal dumping of Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM), by allowing agencies to track the material from production to disposal. The environmentalists have criticized the state for “bending to the will” of the oil and gas industry, which produces about 75 tons of TENORM a day in North Dakota.
The rules, which went into effect Jan. 1, boosted radiation level allowances at state landfills from 5 picocuries per gram of material to 50 picocuries. Ten state landfills are eligible to hold such waste under the new rules, and a few more under development.
The environmentalists’ attorney, Sarah Vogel, argued in a filing last week that the State District Court has the authority to void the TENORM rules for the period between August 2015 and August 2016, because the re-ratification cannot be applied retroactively. She also argued that the prevailing parties are allowed reasonable attorney’s fees under state open meeting law.
The $1,000 in damages should be awarded, she said, because the Health Council knowingly violated open meetings law. According to Vogel’s filing, there is no evidence that then-council Chairman Gordon Myerchin and his successor, Wade Peterson, “took any steps to assure themselves that the Health Council was following the law.”
“Even at this late date in the game, Mssrs. Peterson and Myerchin (through their counsel) do not acknowledge any personal fault, but rather argue at that they ‘should assume that the meeting was noticed correctly,’” Vogel wrote. “Rather, they had a legal duty to ‘assure’ that proper notice was made by themselves or by a subordinate.”
The groups have requested oral arguments in court.
