The North Dakota Health Council will reconsider rules it illegally adopted in 2015 that boosted radiation-level allowances at state landfills, according to documents released Tuesday.
The decision follows Monday’s court hearing in which a state attorney defended approval of the rules. The Health Council will consider the rules, which went into effect Jan. 1., for re-ratification at its Aug. 9 meeting, according to the Health Council’s latest agenda.
North Dakota Assistant Attorney General Jeffrey Petrie told state District Court Judge Thomas Schneider on Monday that the public had “every opportunity in the world” to participate in the approval process for the new rules, despite the state attorney general’s finding that the council violated public meeting law during the approval process.
“The Health Council allowed public comment at that meeting, which they were not statutorily required to do, but they wanted to be as transparent as possible, and then they passed the (new) rules,” Petrie said. “Plaintiffs had all the opportunity in the world to participate in the rule hearings, and they did.”
The approved rules boosted radiation level allowances at state landfills from 5 picocuries per gram of material to 50 picocuries. State officials say the new rules help combat illegal dumping of Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM), by allowing agencies to track the material from production to disposal. The nongovernmental Dakota Resource Council and North Dakota Energy Industry Waste Coalition argued that the Health Council did not provide the proper amount of public notice before approving the new rules in August.
Attorney General Wayne Stenehjem in March concurred, issuing an opinion that said the Health Council violated state open meeting law. The group, which advises the state Department of Health, should have allowed three months’ public notice, instead of 13 days. As a remedy he told the Health Council to deliver the meetings’ minutes to the interested groups.
Health Council spokeswoman Colleen Reinke said in an email Friday that all votes taken during approval in August 2015 were added to the meeting’s agenda for consideration of ratification. The council chair will determine if public comment will be allowed, but testimony is not normally taken at meetings, only at hearings. The chair will decide whether to take a ratification vote, she said.
Don Morrison, executive director of the Dakota Resource Council, has said that Stenehjem’s remedy is insufficient, and shows that North Dakota officials are less concerned with the public than they are with catering to the oil and gas industry, which produces about 75 tons of TENORM a day in North Dakota.
“In this case (the Health Council) clearly violated the open meetings law,” North Dakota Energy Industry Waste Coalition Chairman Darrell Dorgan told radio station KFGO last week. “They did not publicize a meeting, which was held, which significantly changed state law in regard to the disposal of radioactive waste.”
The groups had requested that the new rules be vacated and the proposal be revisited, while the Health Council asked the court to dismiss the case. Schneider is expected to deliver an opinion on whether to proceed to trial at a later date.
