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Environmental groups to argue radioactive waste rules passed with inadequate public notice

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BISMARCK -- If two environmental watchdog groups have their way in court, North Dakota’s relatively new radioactive waste disposal rules could be in jeopardy.

The North Dakota Energy Industry Waste Coalition and the Dakota Resource Council will argue in district court Monday that illegal public notice by the State Health Council when it approved the rules in August means that meeting should be done over.

Their attorney, Sarah Vogel, said the lawsuit appears to be the first instance anyone has gone to court to force a do-over because of illegal public notice. The case is a civil action for remedy and enforcement. South Central District Judge Thomas Schneider will hold the hearing on the Health Council’s motion to dismiss the case.

The Health Council approved the radioactive waste program in August and new rules allowing up to 50 picocuries in special landfills went into effect in January. The two environmental groups objected to the lack of timely public notice during the meeting and afterward secured an Attorney General’s office opinion. That opinion agreed that two working days’ notice was not adequate given that the council had set the meeting date four months earlier.

The opinion — issued in March, three months after the new radioactive program was already in effect — said the Health Council could fix the problem by mailing the August meeting minutes to the complainants.

In court documents, Vogel said the remedy of mailing the minutes is a sham and that the correct fix, and one provided in Century Code, is for the Health Council to hold another meeting and give the public notice.

“Mailing the minutes did not correct the violation .... This was a serious and blatant violation of the advance notice provisions … on a topic of a preeminent public health concern,” Vogel said in a court brief.

If the judge voids the 2015 meeting, the effect is not clear.

“The Health Council could reach the same decision, or they could change their minds based on information at a new meeting,” Vogel said.

In court documents, the Health Council says no remedies are available to the environmental groups because the violation was corrected prior to their civil suit and no one was harmed or prejudiced by the delay.

Health Council chairman Wade Peterson said he couldn't discuss the matter while it's in litigation.

Scott Radig, who manages the State Health Department’s waste program, said he can’t speculate on any possible outcomes of the lawsuit.

The department has received two applications for radioactive waste disposal in the oil patch, where radioactive soils, filters and equipment are generated from oil production. Radig said IHD Environmental recently put an indefinite hold on its application for a radioactive waste disposal site near Alexander so it can do more local outreach. A second application from Secure Energy Services for a disposal site 13 miles north of Williston is in the early stages with months to go before a draft permit could be issued.

Until there is a radioactive landfill established in North Dakota, the materials are transported to certified locations in other states.