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​Davis Refinery update

by Jim Fuglie | .(JavaScript must be enabled to view this email address) | Last Word | July 11th, 2018

“Davis Refinery permit approved.”

That was the headline in the paper last week, telling us that the North Dakota Department of Health has approved an air quality permit and issued a permit to construct an oil refinery three miles from Theodore Roosevelt National park.

Yikes! What kind of monsters would want to do this—put an oil refinery right next to Theodore Roosevelt National Park? And what kind of state regulators would permit that to happen?

And who, at the highest level of North Dakota state government, will step in and say “No. We’re not going to let you do that.”

Surely, Doug Burgum, you have a soul. Surely you won’t let this happen on your watch. Surely, you don’t want this to be your legacy.

Let me ask you this, Governor Burgum:

Would the state of Wyoming allow an oil refinery to be built three miles from Old Faithful in Yellowstone National Park?

Would Montana put a refinery three miles from the Going To The Sun Highway in Glacier National Park?

Would Alaska permit a refinery at the base of Mount Denali? Well, maybe, Alaska is an even bigger whore to the oil industry than North Dakota. But let’s not give them any ideas.

These places—Yellowstone, Glacier, Denali, and yes, Theodore Roosevelt—these National Parks are our national treasures. There are only 59 of them. The federal government—our elected Congress Members and Senators—agreed to protect these most spectacular places in our states, passing laws that said “We’ll take care of what’s inside these park boundaries. Now you, people of these states, you take care to not let anything mess them up from the outside.”

Theodore Roosevelt National Park is the only national park in America named for a President of the United States—in fact the only national park named for a person. That’s how revered Theodore Roosevelt is. He was afforded this honor because of his great conservation record, which includes setting aside more than 230 million acres of public land during his presidency from 1901 to 1909.

He didn’t set aside the land where Theodore Roosevelt National Park is today. That was done by Congress in 1947, to honor him. But he lived and ranched there, and developed his strong conservation ethic there, and said if it was not for the time he spent in the North Dakota Badlands, he never would have been President of the United States.

The National Parks Conservation Association, a national parks watchdog group, has suggested that the Health Department attach a condition to the permit—perfectly allowable in the law—requiring the refinery to undergo a PSC site review.

I asked an official with the Health Department a couple weeks ago if they were considering attaching such a condition. He responded “We will address the PSC siting review issue in our response to comments, which will be made available upon completion of the document.”

They did that. In response to comments requesting them to attach the condition of a site review by the PSC the Health Department said:

“Imposing a condition in the permit to construct requiring PSC siting would not be reasonable because a permit to construct is intended to address air pollution-related issues, not siting issues. See N.D.A.C. § 33-15-14-02(9) (authorizing the Department to impose “reasonable conditions” in a permit to construct). Concerns regarding the PSC’s requirements must be addressed to the PSC.”

Well, that’s complete and total bullshit.

I did go “see N.D.A.C. § 33-15-14-02(9).” It says:

“The department may impose any reasonable conditions upon a permit to construct, including . . .” and then it goes on to list various things, like

  1. Sampling, testing, and monitoring of the facilities or the ambient air or both.
  2. Trial operation and performance testing.
  3. Prevention and abatement of nuisance conditions caused by operation of the facility.
  4. Recordkeeping and reporting.
  5. Compliance with applicable rules and regulations in accordance with a compliance schedule.
  6. Limitation on hours of operation, production rate, processing rate, or fuel usage when necessary to assure compliance with this article.

Well, I guess I could make a pretty good case that any refinery operating beside a national park could create “nuisance conditions,” for the park, but that should not be necessary. There’s nothing in 33-15-02(9) that says they cannot require a PSC review. They could certainly attach that condition and let Meridian challenge it in court, if they want to.

I am reminded of a story about Theodore Roosevelt. When he heard that yachtsmen in Palm Beach, Florida, were shooting brown pelicans for sport as the ponderous birds flew to their nests on a small island not far away, Roosevelt asked his attorney general, “Is there any law that will prevent me from declaring Pelican Island a federal bird reservation?”

“No,” the attorney general replied. “The island is federal property.”

“Very well, then, I so declare it.” Conditions to a construction permit, then they should “so declare it.”

And that was the birth of our National Wildlife Refuge System.

If there’s nothing in state law preventing the Health Department from attaching specific, or if Meridian wants to be a good North Dakota corporate citizen (yeah right) they could simply comply, and go through a site review, like every other major energy conversion facility in our state has done, and, using the best legal and scientific methods, find out if this is really a good place for a refinery.

That’s what should happen, Governor Burgum. Those folks over at the Health Department work for you. Call them up and insist that they attach a condition for building that refinery next to our national park requiring Meridian to go through a PSC site review. There is precedent for that.

Way back in 1974, in the face of a massive development of coal gasification facilities and coal-fired electricity generating plants, with the state lacking laws to regulate things like pollution and mined-land reclamation, Gov. Art Link and his State Water Commission attached a set of conditions to water permits granted to Michigan Wisconsin Pipeline Company and a pair of Minnesota electric cooperatives, United Power Association (UPA) and Cooperative Power Association (CPA) requiring them to take substantive measures to guard against pollution and land destruction. Those conditions, later adopted by the Legislature, became what are still today, I think, the strictest land reclamation laws in the country.

The companies, of course, challenged the Water Commission’s right to attach the conditions. On behalf of the Link administration, then-State Tax Commissioner Byron Dorgan asked Attorney General Allen Olson for an Attorney General’s opinion on whether such conditions were legal. Dorgan wrote:

“I know that the Water Commission and the Governor are attaching these conditions in order to provide the best possible protection for North Dakotans as a result of the approval of these projects.

“The conditions are designed to make certain that developments of the type that were approved are subject to very stringent regulations in order to protect North Dakota's quality of life.

“However, if these conditions should not be able to stand the test of a court challenge, then we are all living with a false sense of security about these conditions.

“For this reason, I believe that the Water Commission and more importantly, the people of North Dakota, should have the opinion of the Attorney General whether the imposition of conditions attached to water permits is legally binding action that the Water Commission has the authority to take.”

Olson wrote in his opinion:

“It is our opinion that the conditions on the Michigan-Wisconsin Pipeline Company and United Power Association/Cooperative Power Association Conditional Water Permits granted by the State Engineer and approved by the State Water Commission are basically valid.”

Olson then went on to say “However, as in all such cases, the courts would make the final dispositive determination as a validity.”

In the end, the courts did that. Link won his battle “to protect North Dakota’s quality of life.”

North Dakota’s leaders had balls in those days. It took a special kind of courage for Art Link and Byron Dorgan and Allen Olson to stand up to the industrial giants of their day and say “Not so fast. Let’s take a good look at this and make sure we’re doing it right.”

In the end, we got a coal gasification plant, and some power plants, built under specific conditions that protected the environment. That’s the model Governor Burgum needs to take a good hard look at.

We can have a refinery here if we want one. And I think we do. But we can put it somewhere else, down the road, not beside the national park named for the greatest conservation politician in the history of our country.

Let’s do that.

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