A North Dakota judge has denied the state’s request to dismiss a lawsuit over rules the North Dakota Health Council improperly adopted in 2015 that boosted landfill radiation-level allowances.
State District Court Judge Thomas Schneider denied the Health Council’s motion in an order Monday, stating that “genuine issues of material fact exist.” The nongovernmental Dakota Resource Council and North Dakota Energy Industry Waste Coalition have sought to vacate the rules because they were adopted without proper public notice.
The approved rules, which went into effect Jan. 1, boosted radiation level allowances at state landfills from 5 picocuries per gram of material to 50 picocuries. There are 10 state landfills eligible to hold such waste under the new rules, and a few more under development.
State Attorney General Wayne Stenehjem agreed with the plaintiffs in March, stating the Health Council should have allowed three months’ public notice of the meeting, instead of 13 days. North Dakota law requires public notice at the same time that the governing body is notified of a meeting, which was three months for the Health Council in this case. State law also dictates that any actions taken at an improperly noticed meeting improperly can be voided, but that depends largely on whether any interested parties were prejudiced or harmed.
The Health Council argued in its court filing that there were no genuine issues of material fact because the plaintiffs “were not prejudiced because the Health Council complied” with the attorney general’s remedy following his decision. Stenehjem in his order directed the council to distribute the minutes of the meeting to interested parties, a remedy that plaintiffs have regarded as a weak response to the infraction.
The plaintiffs, in their own filing with Schneider, argued that several McKenzie County residents were “prejudiced or harmed” because they were not given the opportunity to attend the meeting. The county is home to a landfill that could receive the higher-radiation waste from oil-field operations in the state, the Forum Communications News Service reported in April.
According to Monday’s order, Larry Novak, chairman of the Tri Township Board of Supervisors in McKenzie County, submitted an affidavit voicing concerns about potential adverse impacts from radioactive waste storage near his community. These included decreased property value and negative impact on growth and development. The plaintiffs also submitted several affidavits indicating they would have attended and/or testified at the August 2015 meeting, had they known about it, according to the filing.
“Although the Health Council admits notice was improper, it argues no person was harmed or prejudiced by the delay because notice was provided five days before the meeting and the plaintiffs actually attended the meeting,” the judge’s order states, adding that the council argues there is no statutory right to testify at a meeting, and the outcome likely would have been unchanged regardless of increased attendance.
North Dakota Energy Industry Waste Coalition Chairman Darrell Dorgan claimed damages as an individual and as a professional in his capacity as owner of a video production company, according to the order, which states that Dorgan learned of the meeting “by accident” and attended.
“(Dorgan) asserts he has been harmed by spending time and resources pursuing this litigation and because he did not have sufficient time to study the regulation materials to prepare for the meeting,” the order states. “Dorgan argues he would have prepared substantive comments for the meeting had he been properly informed.”
Following July 18 oral arguments before Schneider, the Health Council said it would consider the new rules for re-ratification at its Aug. 9 meeting. The council chair will determine whether to allow public comment, but testimony is not normally taken at meetings, only at hearings, Health Council spokeswoman Colleen Reinke said by email.
State officials have argued that the new rules help deter illegal dumping of Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM), by allowing agencies to track the material from production to disposal. Environmentalists have argued in recent years that the state bends to the will of the oil and gas industry, which produces about 75 tons of TENORM a day in North Dakota.
