There are two ways to look at the recommendation of Administrative Law Judge Patrick Ward that the North Dakota Public Service Commission dismiss the complaint against that (expletive deleted) Meridian Energy for failing to get a site review from the PSC for its proposed refinery near Theodore Roosevelt National Park.
First, If you believe that two or maybe all three of the PSC members would really like to conduct a site review because they are nervous that this might be a bad place for a refinery, and don’t want to be held responsible for it without at least taking an in-depth look at the location, then this recommendation makes it really hard for them to proceed to order a site review.
Or second, if they really don’t want to get in the way of this huge economic development project, but are feeling a little guilty about letting it go ahead at the proposed location, they now have an easy excuse for saying “Sorry, but the judge says it’s outside our jurisdiction.”
I think I am going to go with Number 1. In my observations of the Commissioners, I think they’d like to make darn sure the refinery “will produce minimal adverse effects on the environment and upon the welfare of the citizens of this state,” as outlined In Chapter 49-22 of the North Dakota Century Code.
The problem they have, of course, is that Meridian says they have revised their plans for the refinery to slide in just under the limits which would require a mandatory site review. Section 49-22 says if they plan to process 50,000 barrels of oil per day, they are subject to a site review by the PSC.
But those slicksters at Meridian now say they will only process 49,500 barrels per day—99 per cent of the allowable limit—so they don’t need a site permit. That’s right—do the math. They are just one per cent below the threshold which would allow the PSC to claim jurisdiction. How sleazy is that?
Pursuant to Chapter 49-22, the PSC has written rules for the site permit process, which have been approved and are part of North Dakota’s Administrative Code. Pretty good rules. In Chapter 69-06-08 of the Administrative Code, they write:
A site may be approved in an area only when it is demonstrated to the commission by the applicant that any significant adverse effects resulting from the location, construction, and operation of the facility in that area as they relate to the following, will be at an acceptable minimum, or that those effects will be managed and maintained at an acceptable minimum. The effects to be considered include:
A. The impact upon agriculture:
(1) Agricultural production.
(2) Family farms and ranches.
(3) Land which the owner demonstrates has soil, topography, drainage, and an available water supply that cause the land to be economically suitable for irrigation.
(4) Surface drainage patterns and ground water flow patterns.
(5) The agricultural quality of the cropland.
B. The impact upon the availability and adequacy of:
(1) Law enforcement.
(2) School systems and education programs.
(3) Governmental services and facilities.
(4) General and mental health care facilities.
(5) Recreational programs and facilities.
(6) Transportation facilities and networks.
(7) Retail service facilities.
(8) Utility services.
C. The impact upon:
(1) Local institutions.
(2) Noise-sensitive land uses.
(3) Light-sensitive land uses.
(4) Rural residences and businesses.
(6) Human health and safety.
(7) Animal health and safety.
(8) Plant life.
(9) Temporary and permanent housing.
(10) Temporary and permanent skilled and unskilled labor.
D. The cumulative effects of the location of the facility in relation to existing and planned facilities and other industrial development.
Somewhere in that list is a reason, or reasons, for not siting an oil refinery next to a national park.
Meridian knows that. But they are not nice people, and they don’t give a rat’s ass about national parks. They only care about two things: making money, and being able to just do any damn thing they please. They will do anything to avoid having to go through that review.
The PSC knows that. And they ARE nice people, and they are concerned about our national park. They have a professional staff that takes their jobs seriously. If they could determine that, under the Century Code and the Administrative Code they could tell Meridian to take its refinery down the road a few miles, I think they’d do it.
One good step by the PSC would be to hold a public hearing and take testimony from interested parties—including Meridian—before making a decision. There’s been no public airing of this huge issue, and it would seem that one is called for. I hope they will do that.
In the end, it boils down to this. The judge correctly interpreted the law—49,500 is less than 50,000, and the judge chose to believe Meridian, when they said that they would stay under 50,000, and therefore the PSC would have no jurisdiction. He’s about the only person in North Dakota who believes Meridian any more.
But I think there is good reason for the PSC to say “We DON’T believe Meridian. Their history here is one of frequently and regularly changing their story when it is convenient, to avoid the law. We just don’t trust them, so we’re taking jurisdiction, and ordering a site review.”
That would set the stage for a court battle. By granting a cease and desist order to the company to stop work on the project, and ordering a site review process, that would buy time for SOMEBDY in the highest office in our state, a former businessman, to sit down and have a CEO to CEO talk with the head of Meridian, and say “Look, this has gone too far. Please find a different place for your refinery.”
That’s what leaders do.
February 13th 2019
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