RUSS HONS: Photo Gallery — Theodore Roosevelt National Park

Grand Forks photographer Russ Hons spent this past weekend in Theodore Roosevelt National Park in western North Dakota, and here is what he saw. (Check out more photos from Russ Hons here.)

LILLIAN CROOK: WildDakotaWoman — Rollin’ Up Our Sleeves

It is the tradition for members of the Badlands Conservation Alliance to do a day of service, usually in Theodore Roosevelt National Park, on the weekend closest to Earth Day. On this past Saturday, we did just that, rollin’ up our sleeves for Theodore Roosevelt National Park, in the heart of the Bad Lands, our sacred landscape.

I’ve been involved with a service event on Earth Day since 1970, when we schoolkids from Rhame, N.D., picked up trash from state Highway 12 ditches. I often think back to that day.

Photo by Jim Fuglie.
Photo by Jim Fuglie.

The moment Jim and I arrived in the park, we headed straight to the banks of the Little Missouri River, as is our tradition. The river is big right now, filled with snowmelt. It drove us both a little bonkers to not be canoeing.

Duty called, and we gathered with 21 other dedicated souls in the parking area of Cottonwood Campground, where Ranger Grant expressed the gratitude of the park for our service and gave us our directions. It was a beautiful spring day, after a very long winter.

Photo by Jim Fuglie.
Photo by Jim Fuglie.

We fanned out across the campground and went to work, cleaning out the ashes from the fire grates and picking up litter and fallen branches, preparing the place for the summer camping season.

There were a few campers in one campground loop, and from these I recruited a new member, who curious about what we were up to, offered to join us in the chores. In our midst were Bart and Julie Koehler, traveling with their Scamp camper from Florida to their Alaska home, and delighted for the occasion to be with old friends in a beloved place. When all was ship-shape, we celebrated Bart’s birthday with a cake and song.

The rest of the weekend was play time for all, with drives and hikes throughout the park, where lots of wildlife was spotted. Sunday morning, Earth Day proper, Jim and I put in extra effort and located the first crocus (pasque flower) of the season.

The spring peepers were singing in the Paddock Creek wetlands, and all was well on a sunny 65-degree day with no wind. Every time we stopped, we reveled in meadowlark song.

If you are interested in joining in future BCA fun, find the details about upcoming events here.

“Look deep into nature, and then you will understand everything better.” — Albert Einstein

JIM FUGLIE: View From The Prairie —A Short Message About Our National Park

This might be the shortest blog post I’ve ever written. Or will ever write. But it’s an important one, so if you are concerned about the possibility of an oil refinery being built next to Theodore Roosevelt National Park as I am, please take just one minute to read it.

I had a chance encounter with Gov. Doug Burgum this weekend. We had a lengthy, frank and off-the-record discussion about the Davis refinery.

Off-the-record, but I think I can share a few things with you after the conversation without him objecting.

First, I don’t think the governor wants an oil refinery next to our national park any more than you and I do, but I believe he is committed to letting the regulatory process play out, without interfering with his agencies.

Second, I think that he believes, as do many of us, that there will be a legal process before construction begins on the refinery and that he is committed to letting that legal process play out as well.

And third, if the refinery gets its permits and survives a legal challenge, I am starting to get the feeling that we might be able to convince the governor to intervene personally with the company and try to get them to move it away from the park.

To convince him, we need to let the governor know that we will support any efforts he undertakes to get the company to move the refinery away from the national park by sending him an e-mail at governor@nd.gov. We can do that now, or we can do that after the legal process is over. But now might be better.

To quote my new online friend and fellow blogger, Judge Tom Davies: Amen.

JIM FUGLIE: View From The Prairie — Of Refineries And The Public Trust Doctrine

The official comment period has passed on that sleazy company Meridian Energy’s request for an Air Pollution Permit for an oil refinery beside Theodore Roosevelt National Park. I’m guessing the State Health Department got an earful.

Mandan’s Tesoro Refinery. They all pretty much look alike. That white stuff is what you’ll see from Theodore Roosevelt National Park.
Mandan’s Tesoro Refinery. They all pretty much look alike. That white stuff is what you’ll see from Theodore Roosevelt National Park.

Friday, on the last day of comments, my friend,Sarah Vogel, our former state agriculture commissioner and one of the state’s best attorneys, sent me a copy of what she sent to the Health Department. It’s so good, I just have to share it. If the Health Department can issue a permit after reading this, everyone there should be sent packing. And if the governor doesn’t step in after reading this, he should be sent back to Cass County.

Here’s what Sarah wrote:

“The Health Department is well aware of the views of the three statewide-elected officials who serve on the Public Service Commission. They have been clear that they believe that this project should not go forward without a ‘big picture’ overview that would come with a site review by the PSC. See, Bismarck Tribune, ‘Commission urges refinery developers to apply for siting permit,’ December 19, 2017. The majority of the persons testifying at the Health Department’s hearing in mid-January 2018 were opposed to the issuance of the air quality permit by the Health Department, and many urged that the Health Department not grant the permit until such time as a site review by the PSC was completed.

“It appears that the Health Department is evaluating comments on some type of a ‘bright line’ separation between its own concerns, and the concerns by other state agencies such as the PSC, and that it believes it lacks authority to look at any factors other than those strictly dealing with the air quality permit requirements set forth in Health Department regulations.

“Yet, the Department of Health is the lead environmental agency of the State of North Dakota! See N.D.C.C. Section 23-01-01.2 (‘The state department of health is the primary state environmental agency.’) Because of its additional role as the primary environmental agency, the Health Department should take a broader view consistent with the Public Trust Doctrine that underlies the duties and operations of all state agencies, including the Department of Health.

“As explained by the North Dakota Supreme Court, the Public Trust Doctrine is part of the common law of this state and overlays and informs the actions of the state as those actions affect the citizens of North Dakota’s critical reliance on clean water and other resources such as clean air. See, e.g., United Plainsmen Association v. North Dakota Water Conservation Commission, 247 N.W.2d 457, at 460-464 (ND 1976). See, also, State ex rel. Sprynczynatyk v. Mills, 523 NW 2d 537, at 540 ND 1974) (‘North Dakota could not totally abdicate its interest to private parties because it held that interest, by virtue of its sovereignty, in trust for the public.’)

“The Public Trust Doctrine is part of the overarching principles that should govern North Dakota governmental officials and especially those at the Department of Health See N.D.C.C. Section 23-01-01.2, supra.

“I recommend that the Health Department consider the Public Trust Doctrine in determining whether it, as the primary environmental agency, has a duty on behalf of the citizens of North Dakota to coordinate with the PSC to insure that all environmental factors are appropriately considered at the appropriate time and in the appropriate sequence.

“The Legislature’s use of the word ‘primary’ necessarily implies a leadership role with other secondary agencies for environmental issues. Here the PSC is pleading for the opportunity to do its job, and review the site of a project that will have a huge effect on western North Dakota in advance of issuance of a permit. The stakes are even higher since North Dakota’s premier attraction, the Theodore Roosevelt National Park, is extremely close to the site for the proposed refinery. Surely, the Health Department has the discretion to defer its decision on an air quality permit for Meridian’s proposed refinery until the PSC has the opportunity to do a thorough and thoughtful determination of the suitability of the site in keeping with state government’s duty to protect the public’s interest.

“The idea that a Meridian claim of a 500 barrel disparity in anticipated production could prevent this critical and essential review is a weak rationale to avoid PSC review. To illustrate, why should the Department of Health take at face value Meridian’s current assertion that it will produce 500 barrels of oil less than the cutoff for mandatory PSC review? As the Department of Health is well aware, Meridian has a history of changing its numbers based upon the audience it is addressing. One set of numbers is provided on Wall Street for potential investors and stockholders; another set of numbers is provided to officials of the State of North Dakota. The latest illustration of the unreliability of Meridian’s public statements is its recent press release on the Health Department’s January hearing which asserted that most of the people testifying were in favor of the project. In contrast, the Bismarck Tribune’s story by Amy Dalrymple said exactly the opposite.

“In conclusion, the permit should be denied or the application should be held in suspense until a proper site review is conducted by the PSC.”

Well. Thank you, Sarah.

I have no doubt the Public Service Commissioners will read this and agree with Sarah. But as long as the Faustian refinery developers hold to their estimate of 49,500 barrels per day (99 percent of the 50,000 bpd that triggers a site review), the PSC is helpless.

But are you reading this, Doug Burgum? Because, ultimately, you’re the man responsible for upholding the Public Trust Doctrine, on behalf of the citizens of your state. The Health Department works for you. You’re the governor. You asked for the job. Now do your job. The Supreme Court has already upheld the Public Trust Doctrine. Do you really want to be on the same side — the wrong side — of a lawsuit with Meridian Energy, governor, and on the opposite side of your own Public Service Commission, when someone files suit to force you to uphold the Public Trust Doctrine?

LILLIAN CROOK: WildDakotaWoman — Mother-Daughter Date To Theodore Roosevelt National Park

My daughter and I had a Theodore Roosevelt National Park getaway Thursday. She hadn’t been out there since Labor Day, and she described the day as “rejuvenating.”

She loves the Bad Lands as much as I, and she is particularly in love with the wild horses that inhabit the South Unit of TRNP. She is a photographer and a member of the group North Dakota Badlands Horse. This nonprofit organization publishes an annual guide to the horses and my daughter, Chelsea Sorenson, has had her photographs featured in the 2017 and 2018 guides.

Thursday was a very monochromatic day in the park, with overcast skies, but not a breath of wind. There were very few other visitors, and the entire loop road was open, something very unusual this winter as it has been closed most previous winters. In addition to seeing 50 horses, we spotted a few bison and some activity in the prairie dog towns. We also saw several hawks, six wild turkeys, lots of magpies and two golden eagles perched on a clay butte. A bald eagle flyby was the day’s finale.

The highlight of the day was that she got to see a stallion she’d never seen before, which is pretty remarkable considering all of the hours she’s spent at the park.

Here are some of Chelsea’s photographs from the day. You can follow her work on Facebook, Twitter and Instagram at Wild Dakota Photos.

JIM FUGLIE: View From The Prairie — The Refinery Needs A Site Review

A pair of former Democratic-NPL state senators challenged the North Dakota Health Department to demand a site review by the State’s Public Service Commission before issuing an air pollution permit allowing Meridian Energy Group to build a refinery three miles from Theodore Roosevelt National Park at a marathon public hearing by the Department Wednesday night.

Former Sen. Connie Triplett of Grand Forks told Health Department administrators near the end of a four-hour public meeting in Dickinson that they should attach a condition to the permit if they issued it, stating that the permit to build the Davis refinery would only be valid if the company submitted to a full site review by the PSC. And former Sen. Tracy Potter of Bismarck went a step further, saying the Health Department should just put the permit application on hold, and not consider it, until the PSC reviews the site.

Damn, I wish I could get rid of the word “former” in front of those two senators’ names. Out of the 40 or so people testifying on issuing an air pollution permit to the company at Wednesday’s public hearing, their Legislative experience showed their understanding of the government processes that could be brought into play before a refinery is built on the national park’s border.

To review: North Dakota has a law that says any energy conversion facility, such as a refinery, that is going to process more than 50,000 barrels of oil per day (bpd) needs to undergo a site review by the Public Service Commission to “ensure the location, construction, and operation of energy conversion facilities … will produce minimal adverse effects on the environment and the welfare of the citizens of this state …”

Further, it says “The policy of this state is to site energy conversion facilities … in an orderly manner compatible with environmental preservation and the efficient use of resources. Sites and routes must be selected to minimize adverse human and environmental impact …” (emphasis added)

To get around that requirement, Meridian now says it is going to process only 49,500 barrels per day, a sleazy, transparent move to avoid having the PSC tell them it this is a lousy place for a refinery and that Meridian should put it somewhere else where it won’t detract from our national park.

Meridian’s number of 49,500 bpd is 99 percent of the PSC’s jurisdiction limit of 50,000 bpd. Fifty thousand barrels is 2.1 million gallons. 49,500 barrels is 2.079 million, just 21,000 gallons less than the threshold for regulation. So Meridian’s tactic is to stay just 1 percent under the threshold for regulation. It would be a laughable move by the refinery people if it weren’t for the fact that by staying just barely under the threshold, THERE IS NOTHING STOPPING MERIDIAN FROM PUTTING AN OIL REFINERY BESIDE THEODORE ROOSEVELT NATIONAL PARK.

I can’t shout that loud enough. Nothing stopping them except, of course, issuance of an air pollution permit, which was the matter at hand at Wednesday night’s public hearing. And that’s why Triplett and Potter’s requests are so important. Because in its initial review, the Health Department says it thinks that the refinery could come in under the pollution limits allowed by the federal Clean Air Act to protect the Class I Air Quality Status of a nearby national park.

Now whether we believe that — the Meridian people haven’t said much that is believable so far in this process — Triplett and Potter pointed out that this is just one very narrow — albeit very important — look at whether the refinery should be built there. North Dakota state government needs to take a holistic approach to siting something as big as this — and there’s no doubt this is big, the biggest industrial plant to be built in our state since the Great Plains Coal Gasification Plant near Beulah 35 years ago, which at the time, was labeled the largest construction project in North America.

That’s what the PSC siting process brings. A look at the big picture.  And then once the PSC has completed its site review, the Health Department, the Water Commission, the Game and Fish Department, the State Parks Department, the Agriculture commissioner, the Tourism director, the Transportation director, maybe some other directors and, most importantly, the governor need to sit down around a table and decide what’s really good for the state, and  if this is really the best place to put an oil refinery. That’s how state government should work, whether we trust all those people or not. I guess we have to trust them, since they’re in charge here right now.

I don’t think anybody’s questioning whether we should have an oil refinery in North Dakota. Of course we should. As Triplett has pointed out, it is certainly more environmentally — and economically, I’ll add — desirable to refine oil here and ship a finished product out in a pipeline than it is to ship out raw crude in a pipeline and then ship refined gasoline and diesel fuel back here in trucks or another pipeline.

So the only real question is, where should the refinery be? Public Service Commissioners Julie Fedorchak and Brian Kroshus pushed hard at Meridian officials at a meeting last month to get them to consider other locations away from the park but to no avail. Barring that, they asked politely to be allowed to conduct a formal site review to “ensure the location, construction and operation of the refinery… will produce minimal adverse effects on the environment and the welfare of the citizens of this state …”

Meridian officials told them to stuff it. The 49,500 bpd refinery is under the threshold for a site review, they said, and they are complying with the law. Well, yeah 1 percent under the threshold, and in terms of impact on the environment and the welfare of our citizens, that’s a pretty slim — and sleazy — standard they set for themselves.

In fact, it prompted PSC Chairman Randy Christmann to tell me and a few others after the meeting that he won’t be surprised if some legislator introduces a bill in the next legislative session to get rid of the threshold altogether and make all energy conversion facilities of any size subject to a site review. Good for him. Christmann is not a big government regulation guy, but I think he’d like that. In the case of Meridian, that would be closing the barn door after the cows are out, but it certainly would keep this from happening again in the future.

Shortly after that meeting between Meridian and the PSC, when Meridian snubbed its nose at three elected officials, I sent a letter to Gov. Doug Burgum asking him to call Meridian CEO William Prentice into his office and ask him politely — CEO to CEO — to move the refinery away from the park. I think I’ll just put my letter at the end of this post because it’s been a month now, and I’ve not had a response from the governor.

I’m disappointed in that. It used to be in North Dakota, when you wrote a letter to an elected official, you got a response in a pretty timely manner. I worked for a governor for eight years, and I don’t recall a constituent letter ever going unanswered. Especially on a matter as important as this. I’ll write a little more about that subject in a few days.

Meanwhile, subsequent to Wednesday’s Health Department hearing, a public comment period on this issue remains open until Jan. 26. Then the Health Department will read all the public comments and respond to them, I think. Often the response is just to thank you for commenting and telling you they are taking your comments into consideration, but at least you know your comments have been read by someone. I submitted mine a few weeks ago and shared them with you in this space. You can read them by going to my old blog. I urge you to join me in commenting. I’m putting the address for your comments at the end of this post, too.

I’m adding to mine by strongly urging the Health Department to take the advice of Sens. Potter and Triplett and attach conditions to any permit, requiring Meridian to undergo a site review. Triplett, an environmental attorney, knows North Dakota law, and she says they can attach conditions to a permit. There’s precedent for that, even.

Way back in the 1970s, when a company named Michigan Wisconsin Pipeline Co. asked for a state water permit to construct some coal gasification plants here (one of which ended up being the Great Plains Synfuels Plant I mentioned earlier), the North Dakota Water Commission attached a series of conditions to the permit, which ended up being the beginning of North Dakota’s Mined Land Reclamation Laws, now the strictest reclamation laws in the country.

I think the conditions were challenged in court, and they held up. We’re all winners because of that. Strict regulations were followed, the coal gasification plant got built, and it’s still operating successfully today.

And I’m going to go a step further and ask the governor to strongly advise the Health Department — they work for him, after all — to attach the condition of a site review to the permit, if they issue one. Or to just tell the company they’re holding the permit until a site review is done. If Meridian is confident they’ve got the right project in the right place, they won’t have any problem undergoing a site review.

Let me repeat that.

If Meridian is confident it has got the right project in the right place, it won’t have any problem undergoing a site review.

One more time.

If Meridian is confident it has got the right project in the right place, it won’t have any problem undergoing a site review.

Here’s the address for your comments, to be submitted to the Health Department by Jan. 26. You might want to use the line “If Meridian is confident they’ve got the right project in the right place, they won’t have any problem undergoing a site review.”

Terry O’Clair, P.E., Director

Division of Air Quality

ND Dept. of Health

918 E. Divide Ave.

Bismarck,ND 58501-1947

And here’s my letter to the governor:

 December 21, 2017

Dear Gov. Burgum,

Late in the afternoon on this shortest day of the year, my mood is as dark as the 5 p.m. sky. I close my eyes and think back to the meeting between the PSC and William Prentice from Meridian Energy Group the other day, and I see him smirking as he says “We are going to comply with the law.”

So that’s what it’s come to for Meridian. It’s about the law. It’s not at all about anything North Dakotans might feel about having a refinery smack up against their national park. A national park named for our Greatest Conservation President.

“If these stupid North Dakota hicks are willing to put that kind of a loophole in their siting law, I’m going to use it,” the snarky Californian says.

So now, Governor, it’s up to you. You need to get that asshole in your office and tell him he needs to move that refinery. You can do that. He’ll respect you, a fellow businessman and North Dakota’s CEO.

Randy and Julie and Brian did their best, but they carried no authority. They’re not used to dealing with this kind of character. “I don’t see why you don’t just go through the siting process” won’t work with this guy. It’s kind of like the salesman who says “I don’t suppose you’d like to buy some insurance, would you?”

Please, Governor, call this guy up and get him in your office. And tell him to move the damn refinery.

Please let me know if you are willing to do this, so I can stop writing about it (and you) for a while. Even if it does no good, I need to know that at least you were willing to try.

Thanks.

Sincerely,

Jim Fuglie

JIM FUGLIE: View From The Prairie — We’ll See You In Court

At the end of the meeting between Meridian Energy Group executives and the North Dakota Public Service Commission a couple of weeks ago, Commission President Randy Christmann pretty much told William Prentice, Meridian CEO and the man who wants to build an oil refinery next to Theodore Roosevelt National Park, that the next time they meet will probably be in a courtroom.

“I expect when you break ground, somebody’s going to bring a complaint,” Christmann said. “You could be in court a long time.”

And commission member Julie Fedorchak added, “There are a lot of compelling reasons why you should go through our siting process. In the long run, it would be much better for you to have completed that process.”

Prentice’s reply: “We’re going to comply with the law.”

And later he told a reporter: “In the private sector, we very seldom look for excuses to have another regulatory layer on what we’re trying to do,”

What an asshole.

This is what a refinery looks like. Every refinery.
This is what a refinery looks like. Every refinery.

As you probably know from reading about that refinery, which Meridian plans to put alongside I-94 just east of the Park, the company is doing everything it can to just slide past legal impediments to its plans.

By claiming to be a “minor” source of pollution, Meridian takes a short route past the State Health Department’s Air Quality Permit process. As a result, the Health Department is just one public meeting away from issuing a “Permit to Construct.”

By telling the PSC it is only going to be processing 49,500 barrels of oil per day (bpd), Meridian skirts the Public Service Commission’s 50,000 bpd threshold for undergoing a site review to determine if this is a good place for a refinery. So the PSC has no legal authority to keep the refinery from being built near the national park.

That makes Fedorchak and fellow commissioners Christmann and Brian Kroshus very unhappy.

“It’s really a mixed message from the company,” Fedorchak says. “They’re telling us one thing directly and telling a whole bunch of other audiences something very different.”

To wit, this statement from Prentice on Meridian’s website early last year:  “We fully expect that the finalized refinery will be well above 55,000 barrels per day in capacity.”

That’s what Prentice and Meridian are telling potential lenders and investors. Maybe it’s time to get the North Dakota Securities commissioner’s office involved.

So that’s where we are today, as we begin 2018, the year in which Meridian says it will build a refinery just three miles from the national park named for our country’s greatest conservation president.

Meridian came to North Dakota in 2016 and told us it is going to build an oil refinery in Billings County that will process 55,000 barrels of oil a day. It’s going to build it in two phases, it said, of 27,500 barrels each, in rapid succession. Then it found out it has to go through a site review by the PSC if it’s going to process more than 50,000 bpd. Meridian changed its story, saying it is only going to process 49,500 barrels per day. How blatant is that? I’m surprised it’s not saying 49,999 bpd. Hey, they’d be one barrel within the limits of the law!

The State Water Commission (actually, the State Engineer’s office) received Meridian’s request for a water permit to take enough water out of the ground for the refinery to process 55,000 bpd. After reading Meridian’s website and press releases, the commission decided to grant a permit for just 90 percent of Merdian’s request, which might keep it from processing more than the 50,000 barrels per day threshold set by the laws governing the PSC’s siting process. So what’s 90 percent of 55,000? 49,500. The Water Commission’s math gives them, in theory, just enough water to process 49,500 barrels of oil per day. Now isn’t that convenient?

According to a Bismarck Tribune story from last summer, “Meridian requested enough water for use in a refinery that can process 55,000 barrels of oil per day. However, the company has told the Public Service Commission it plans to build a facility to process 27,500 barrels of oil per day and has not applied for a siting permit from the agency. A capacity of 50,000 barrels per day triggers a requirement for PSC approval.”

That lit up a light bulb at Meridian. Hey, if we change our story one more time, and tell the PSC we’re going to use 49,500 barrels a day, we’re under their threshold, and we don’t ever have to go through their siting process.

So, thanks, Water Commission staff, for planting that seed.

To be fair, Water Commission staffer Kimberly Fischer expressed some regrets about the permit, telling the Tribune “While there may be an impact to visitors’ experiences due to the construction of a refinery, it is outside of the authority of the state engineer to deny a water permit application due to the visual impact of having an industrial development near a national park.”

Hmmm. I’m trying to decide the difference between granting only part of a request for a water permit and not granting it at all. Both seem pretty arbitrary to me. State law says the state engineer needs to consider the effect of granting a water permit on “public recreational opportunities” (like a nearby national park?) or “harm to other persons resulting from the proposed appropriation” (like ruining the visitor experience at the national park?). I might be able to make a pretty good case that those two things are not “outside the authority” for denying the permit based on those two parts of NDCC 61-04-06.

But right now, the jurisdiction of the other two agencies — the State Department of Health and the Public Service Commission — are foremost in everyone’s minds. PSC Chairman Christmann had some harsh words for Meridian’s CEO, Prentice, and his bevy of lawyers. Not only did he pretty much say “We’ll see you in court,” at the end of the December meeting, but he started the meeting by telling the Meridian team “You’re not under oath today, but we are recording this meeting so it can be used as evidence if we have a case, so tell the truth.”

And Fedorchak actually drew a chuckle from the audience with a comment that was a little bit snarky: “I don’t see what’s special about this that makes it look any different than any refinery I’ve driven by, which I want to get by as soon as possible.”

The Health Department, meanwhile, is in the midst of a public comment period on its decision to issue an Air Quality “Permit to Construct” the refinery. The agency’s scientists and engineers have reviewed the numbers Meridian used in its application for the permit, and they apparently believe that they can run the refinery in that location and not affect Theodore Roosevelt National Park’s Class I Air Status.

If that’s the case, I told the Health Department’s Terry O’Clair, the director of the Department’s Air Quality Division, in a letter this week, he’s probably about the only one on the face of the earth who believes them. Because their record is so riddled with changing numbers and cover-up stories that very few people believe anything they say anymore.

“Listen, Director O’Clair,” I said in my letter (you can read the whole thing below if you want to), “if their record of using any number that is convenient in any given situation to justify their project is not enough to convince you that the numbers they provided you in their application cannot be trusted, then Heaven help North Dakota. Because we certainly can’t count on the North Dakota Department of Health.”

Before the Health Department can issue the final “Permit to Construct,” it is accepting public comments and will have a public meeting to discuss the project. I hope that everyone who reads this will write a letter and attend the meeting. The meeting is in Dickinson State University’s largest auditorium, in May Hall, on Wednesday, Jan. 17, at 5:30 pm MST. The deadline for submitting letters is Jan. 26. The address is at the top of my letter, below. You have until Jan. 26 to send your letter, so you can write it now, or you can wait and attend the public meeting and then react to that in your letter. In any case, send a letter!

All of the documents associated with the permit are on the Health Department’s website. There are hundreds of pages of documents. No one can be expected to read them all before the public meeting. I scanned through them. They are dated Nov. 30, 2017. Just about exactly five weeks ago. This paragraph jumped out at me:

“The facility is planned to be constructed in two phases; however, for air quality permitting purposes the impact of the entire planned project was taken into consideration. Upon completion of Phase 1, the Davis Refinery will have the capacity to process an annual average of approximately 27,500 barrels (bbl) per day of crude oil. Upon completion of Phase 2, the capacity will increase to 55,000 bbl per day of crude oil. The crude oil feedstock is expected to be generated from the North Dakota Bakken formation.”

That paragraph is part of the “Air Quality Effects Analysis for Permit to Construct” written by David Stroh, an environmental engineer with the Health Department’s Division of Air Quality. So what that means is the Health Department’s analysis of the refinery’s impact on our state’s air quality is indeed based on a refinery processing 55,000 barrels of oil per day, not the 49,500 Meridian now claims. A minor point perhaps, but maybe not. Because Meridian can reassure potential investors and lenders they have been approved by the North Dakota Department of Health to process 55,000 barrels of oil per day. That last 10 percent might just be important to money people.

Further, the ENTIRE Permit to Construct issued by the Department of Health is based on a refinery capable of processing 55,000 barrels of crude oil per day. Meridian officials are now flashing the permit in front of money people, especially the front page of the massive document, which reads:

3. Source Type: Petroleum Refinery with a rated capacity of up to approximately 55,000 barrels of crude oil per day.

Just click here for a quick look at that front page.

No wonder the Public Service Commission is pissed off. They’re being duped. It would seem to me that a phone call is in order, from Randy Christmann, chairman of the PSC, to Terry O’Clair, director of the Air Quality Division of the Health Department. “Hey, Terry, you’re about to give Meridian an Air Quality Permit to construct a 55,000 bpd refinery, but they were in our office three weeks ago and said it was only 49,500. You should probably change the permit.”

Back last summer, I wrote on this blog that Meridian is the sleaziest company to show up in North Dakota since the beginning of the Bakken Boom. Meridian is proving me right. I’ve said all along that everyone wants an oil refinery in North Dakota, just not there, beside our national park. I’m going to add one more caveat to that statement: Not that company, either. Not Meridian. They’ve proven they have no North Dakota values. They don’t belong here — anywhere — in our state.

Here’s the letter my wife Lillian and I sent to the Health Department.

Terry L. O’Clair, P.E.

Director

Division of Air Quality

North Dakota Department of Health

918 East Divide Ave,

Bismarck, ND 58501-1947

January 2, 2018

Dear Director O’Clair,

We have looked through the Permit To Construct issued by your agency to Meridian Energy Group to build the Davis Oil Refinery three miles from Theodore Roosevelt National Park (or as you describe it, approximately 2 miles west of Belfield) in Billings County, North Dakota.

We are not scientists, so we have no scientific basis from which to challenge your decision to issue the permit. But we are avid readers, and cautious conservationists, so we have followed news reports about this project, and have carefully reviewed Meridian’s website, including all of its news releases and its stock offering documents for prospective investors in the project.

You, on the other hand, are a scientist, so you have some basis for making a decision on whether this project will adequately meet the standards set by the National Environmental Protection Act to protect North Dakota’s environment and Theodore Roosevelt National Park’s Class I Air Quality.

At the end of the draft permit you issued to Meridian, in a section called “General Conditions,” you state: “This permit is issued in reliance upon the accuracy and completeness of the information set forth in the application.”

With those words, your department says that you are relying on them to provide complete and accurate information about what they will do to North Dakota’s air, which you are charged with protecting.

If your agency believes Meridian is providing you with “complete and accurate information,” then you are probably about the only people on the face of the earth who believe them. Because their record is so riddled with changing numbers and cover-up stories that very few people believe anything they say anymore.

We’re not going to go into the long list of discrepancies — 27,500, 55,000, 49,500 bpd — and how their story changes depending on which agency of state government they are trying to bamboozle, or which lender or investor they are trying to suck in. You have seen those changing stories. You already know that the numbers in their permit application are pure speculation, untested by science. And you believe them?

Listen, Director O’Clair, if their record of using any number that is convenient, in any given situation, to justify their project, is not enough to convince you that the numbers they provided you in their application cannot be trusted, then Heaven help North Dakota. Because we certainly can’t count on the North Dakota Department of Health.

Meridian is still telling investors that they are building a 55,000 bpd refinery and it will be in operation in early 2018. But now they’re giving North Dakota government agencies different numbers and saying they hope to have the refinery operative sometime in 2019. Perhaps it’s time to be talking to the State Securities Commissioner.

Former Theodore Roosevelt National Park Superintendent Valerie Naylor told a reporter last year that one of the problems with regulation of this refinery is North Dakota state government hasn’t taken a broader look at the project. She’s right. State government agencies need to review the project as a cooperating group, not just as individual agencies charged with examining specific parts of the project, such as water, emissions, and location. Superintendent Naylor said “You have to look at the whole picture. The whole project is more than the sum of its parts.”

What’s most troubling, we think, is Meridian’s obvious consistent pattern of avoiding serious scrutiny of their project by North Dakota government. By applying for a Synthetic Minor Source Air Quality Permit they are avoiding serious scrutiny from you. And by artificially setting their new production projection at 49,500 bpd, they are avoiding serious Public Service Commission scrutiny.

Even North Dakota Public Service Commissioner Julie Fedorchak doesn’t believe them. After being told Meridian was going to process an amount of oil which would keep them under the 50,000 bpd threshold for a full PSC site review, Commissioner Fedorchak told a newspaper reporter “They’ve been clear that they intend up to 55,000 barrels per day capacity, which would put them within our siting jurisdiction.” Fedorchak said “It’s really a mixed message from the company. They’re telling us one thing directly and telling a whole bunch of other audiences something very different.”

Julie Fedorchak’s no dummy. If she doesn’t believe them, or trust them, neither should you. And it’s a clear example of why state agencies need to be talking to each other.

Referring to Meridian’s application for a “minor” source permit, Meridian’s CEO, William Prentice, said in a press release from his own company “it is ‘unheard of’ for a refinery with Davis’ scale and scope to meet such strict emissions criteria.” But even though he admits it is “unheard of,” he’s got a big smirk on his face, because he’s convinced you to let him go ahead and build his refinery right next to a national park anyway.

And then, admitting that he is doing all he can to avoid serious environmental scrutiny, he told a reporter in December “In the private sector, we very seldom look for excuses to have another regulatory layer on what we’re trying to do,”

Good grief! Pure arrogance. And yet you are willing to gamble North Dakota’s future air quality by allowing industrial development by a company run by a man like this, within eyesight and earshot of Theodore Roosevelt National Park?

As we said at the beginning of this letter, you’re the scientist, Mr. O’Clair, not us. But sadly, we have to reject the science in this case. We don’t trust anything William Prentice and Meridian say. Neither should you.

We urge you to, at minimum, require Meridian to submit to examination as a Synthetic Major Source, and at most, we urge you to completely reject the Meridian application for an Air Quality Permit at this proposed location, because we just should not be taking chances with unproven science near Theodore Roosevelt National Park.

We believe you have the authority to tell Meridian to move the refinery away from the park if they want a permit to pollute North Dakota’s air. Your job is to protect our air, and our national park. Please do your job.

Respectfully,

 

Jim Fuglie

Lillian Crook

LILLIAN CROOK: WildDakotaWoman — Fort Keogh Trail

Another important historic trail in North Dakota that has been on my mind this past year is the Fort Keogh Trail. This trail passed nearby to where I grew up in Slope County.

As shown on the map above, it ran from Fort Abraham Lincoln (near present-day Mandan, N.D.) to Fort Keogh, west of Miles City, Mont.

Completed during the summer of 1877, it was also known as the Post Office Route No. 35,051 and began operation in 1878, with stations about 18 miles apart. “The route roughly followed the Custer Trail of 1876 … (and) afforded the natural and most convenient places to set up stations, which usually consisted of a dugout in the side of a hill. …” (Old Red Old Ten)

An excellent source of information on the Trail is in the files at Theodore Roosevelt National Park and has been digitized by the Theodore Roosevelt Center.

“Two miles west of Amidon the mail road is around 150 yards north of the present highway No. 85 and crosses Sand creek about a mile and a half north of where you would be if you would go due west from Amidon. A station was located on Sand creek. (Roberts’ Letter 3-24-49) After crossing Deep Creek about a mile below the H.T. Ranch, the road continued to the Little Missouri, where there was a station by that name.” (Fort Keogh Trail, TRNP, pg. 7) These stations were the ones that my grandparents and parents remembered.

This photo from the TR Center archives shows four men standing on the location of the Fort Keogh Trail at Sand Creek (with the Little Missouri River cottonwoods and banks clearly shown).

“Most of the stations were mere dugouts in the side of a hill, with a single window and door in front…The first real building [seen] since leaving Bismarck was a little stock tender’s cabin on the western bank of the Little Missouri. (Fort Keogh Trail, TRNP, pg. 8)

Harry Roberts writes in “As I Remember” regarding the Keogh Trail in Slope County at Sand Creek, “I have pictures of the building (I wonder what happened to these) and also pictures of two graves of the two men that took care of the relay horses there. The Indians discovered the horses grazing out a little ways from the buildings and proceeded to run the horses off. These two men grabbed their guns and rushed out to regain the horses and both of them met their death.” (Slope Saga, pg. 1120)

The photo to the right, by the famous photographer L.A. Huffman, who lived at Fort Keogh, shows the wagon trails along the Fort Keogh Trail.

“Huffman never forgot his trip from Bismarck to Fort Keogh in the open buckboards of the mail carriers. Exposed to the wind and subzero temperatures without adequate clothing, he suffered so severely that he was forced to lay over at a little stage station midway along the trail. The first night out an outlaw who was under suspecision in connection with the disappearance of some Army mules stopped the stage and climbed in. Curiously,, he sized up Huffman as a fellow fugitive and generously offered to attempt a standoff while Huffman got away should an attempt be made to apprehend them.” (Brown, Mark H. and W.R. Felton. “Before Barbed Wired: L.A. Huffman, Photographers on Horseback,” c1975, pg. 14)

Fort Keogh, Mont. Officer's quarters and cavalry barracks, June 1880 (by L.A. Huffman).
Fort Keogh, Mont. Officer’s quarters and cavalry barracks, June 1880 (by L.A. Huffman).

His position at Fort Keogh was post photographer and while there he witness the surrender of important Native American chiefs and about two thousand of Sitting Bull’s followers.

There is an interesting Bismarck Tribune article published in 2009 that tells readers more about the soldier named Keogh, after which the fort and frail is named. Song Tied to Little Bighorn’s History

In a document called “Buffalo Hunt in the 1880s,” available electronically through the Montana Memory Project, the tale is told of W.E. Limestone and three of his friends traveling to Fort Keogh to hunt the last of the buffalo in December 1880. They almost froze to death on the trail. This is just one of the many colorful stories centered on the Fort Keogh Trail.

In 1873, the Trail was described as a “busy highway.” (Fort Keogh Trail, TRNP, pg. 11) and by the 1890s, it was known as the Government Road. By the 20th century, travelers could stay at the Amidon Hotel.

The sign in front of this hotel reads: “We burn our coal mines, fossilize our ancestors, petrify our wood, welcome our guests, stop and see us, Amidon Community League.” (Photo is dated 1938.) My great-aunt lived in Amidon in the early days and operated a store with her husband.

The history of western North Dakota is as rich with these stories as it is breathtakingly beautiful in its landscape.

LILLIAN CROOK: WildDakotaWoman — ‘The Hour of Land’

“The Hour of Land: a Personal Topography of America’s National Parks,” Terry Tempest Williams (Sarah Crichton Book, 2016).

The National Park Service observed its centennial in 2016. During this year, writer Terry Tempest Williams published “The Hour of Land,” her personal journey and meditation on the national parks, essays written as she traveled the country visiting some of the iconic sites that so define this country.

“There are few contemporary nonfiction writers who can capture the essence of the American wilderness landscape as eloquently and intimately as Williams. Noted for writing about the American West, her distinctive prose style is capable of conveying a deep spiritual dimension within the physical setting. This is very much in evidence in her latest book, a broadly ambitious and deeply impassioned collection of essays on a select group of settings within the national park system.” — Kirkus Reviews.

Lillian with Terry Tempest Williams at Theodore Roosevelt National Park South Unit, Summer 2016. (Photo by Jim Fuglie.)
Lillian with Terry Tempest Williams at Theodore Roosevelt National Park South Unit, Summer 2016. (Photo by Jim Fuglie.)

Williams, the writer of many books and a personal friend of mine, is one of the most eloquent voices writing about American lands in this time. One of the early chapters of this book features the previous Superintendent of Theodore Roosevelt National Park, Valerie Naylor, and thus the challenges that are so familiar to readers of Wild Badlands. When Williams was a guest speaker at TRNP during the anniversary celebrations, the house was packed and her warm wisdom kept everyone enthralled.

When I am feeling discouraged about the challenges that the Bad Lands face, I often turn to her writing to ground me and give me courage and fortitude. Hers is an excellent voice to join with those of BCA, and this book is a gem I give my highest recommendation.

This book review was published in “Wild Badlands: Badlands Conservation Alliance Newsletter,” Autumn 2017, No. 42.

JIM FUGLIE: View From The Prairie — Refinery Near National Park Gets Preliminary OK

Tuesday’s announcement by the North Dakota Department of Health that it is preparing to issue an Air Quality Permit to Meridian Energy to build the Davis Oil Refinery three miles from Theodore Roosevelt National Park should come as no surprise.

Once again, the state of North Dakota rolls over to the energy industry, but this time it’s threatening more than just North Dakota’s environment. This time it is threatening a national park. This time, maybe, the state has rolled too far.

The Health Department would seem to have a narrow focus — numbers — but the documents it released Tuesday to back up those numbers are rife with judgments. There’s never been a refinery built like this one, the company brags in its public relations efforts, so there’s really nothing to compare it to in arriving at those numbers.

But there are a lot of people concerned about a lot more than just some numbers that purport to show that pollution from the refinery will not cause deterioration of the park’s Class I Air Quality Status.

In its announcement Tuesday, the Health Department said, “A complete review of the proposed project indicates that the facility is expected to comply with the applicable federal and state air pollution rules and regulations.”

Good. That means if the scientists at the Health Department are right, no matter where the refinery is located, in their judgment, it will not pollute North Dakota air.

But this is about more than air pollution. This is about putting a major industrial complex with stacks emitting big white plumes on the entrance road to the gate of a national park named for America’s greatest conservation president.

What are we thinking?

Part of the Health Department’s decision to issue a permit for the plant is based on the fact that Meridian is claiming to be a “minor source” of pollution, rather than a “major source.” I can’t go into a bunch of details about that, but basically it means that because the Department accepts that claim, the refinery is subject to different rules when it comes to determining if it will affect the park’s Class I Air Quality status. Less stringent rules.

That’s the first sham the refinery folks are pulling.

The second is, Meridian are avoiding having to get a siting permit from the Public Service Commission because it says it are going to build a refinery smaller than what it earlier applied for to the Health Department and the State Water Commission.

In North Dakota, a refinery planning to process more than 50,000 barrels of oil per day must go through a stringent siting process to determine the impact of such a facility on the surrounding area, such as a national park. Meridian’s applications to the Health Department, for an Air Quality Permit, and to the North Dakota Water Commission, for a water permit, are for a 55,000 barrels per day refinery. The siting permit process goes beyond just a numbers game. Let me quote from the PSC’s website:

“The purpose of the Siting Act is to ensure that the location, construction and operation of energy conversion facilities and transmission facilities will produce minimal adverse effects on the environment and upon the welfare of the citizens of this state by providing that no energy conversion facility or transmission facility shall be located, constructed and operated within this state without a certificate of site compatibility or a route permit issued by the Commission.

“The Legislature stated that it is the policy of this state to site energy conversion facilities and to route transmission facilities in an orderly manner compatible with environmental preservation and the efficient use of resources. Site and routes should be chosen to minimize adverse human and environmental impact while ensuring continuing system reliability and integrity and ensuring that energy needs are met and fulfilled in an orderly and timely fashion.”

Well, good for the Legislature! I think that law dates back to 1977. It’s a pretty safe bet it wasn’t passed any time in the last 10 years.

Again, the trigger for requiring a siting permit is 50,000 barrels per day. But now, Meridian now has changed its story and says it is only going to process 49,500 barrels per day, sneaking in under the 50,000 barrel limit and avoiding the siting process.

To her credit, Public Service Commissioner Julie Fedorchak said Tuesday she wants to meet with Meridian officials to discuss the proposed location. She’s not been happy with the refinery company’s shenanigans. She’s going to meet with Meridian CEO Bill Prentice on Dec. 19. I think I’m going to be there, too.

I’ve asked Fedorchak to get the governor involved in this process as well. Between them maybe they could convince the refinery people to move the plant 10 miles east, maybe even 20. There’s another refinery already located just west of Dickinson, N.D., about 20 miles east of the proposed location of this one. And it sits next to a transload facility with the capacity to move hundreds of tank cars of refined products a day to Eastern markets. I’d think that is a good location for another refinery.

But back to the Health Department. For now, the Health Department says Meridian complies with Chapter 33-15-14 of the North Dakota Administrative Code, which requires the facility to obtain a Permit to Construct and a Permit to Operate. In other words, the Health Department believes the pollution projections given to them by Meridian. Here are their words:

“The facility has met all requirements necessary to obtain a Permit to Construct. Once the Davis Refinery completes construction and meets the permit to construct requirements, a facility inspection will be performed by the Department. Upon a satisfactory inspection and performance testing, the Davis Refinery will be issued a Permit to Operate.”

Damn!

Here are a couple other excerpts from Tuesday’s announcement by the Health Department:

“Chapter 33-15-15 — Prevention of Significant Deterioration of Air Quality. This chapter adopts the federal provisions of the prevention of significant deterioration of air quality (PSD) program. A facility is subject to PSD review if it is classified as a “major stationary source” under Chapter 33-15-15. The Davis Refinery will be subject to federally enforceable emission limitations via a synthetic minor permit to construct to remain below “major source thresholds” and therefore is not subject to PSD review under this chapter.” (Note there the significance of being classified as a minor source rather than a major source.)

“Chapter 33-15-16 — Restriction of Odorous Air Contaminants. This chapter restricts the discharge of objectionable odorous air contaminants which measures seven odor concentration units or greater outside the property boundary. Based on Department experience with sources having similar emissions, the facility is expected to comply with this chapter.” (Basing this decision on possible sources with similar emissions, this does not pass the smell test, in my humble opinion. They ever been in Mandan when the wind is from the northeast?)

“Chapter 33-15-19 — Visibility Protection. This chapter applies to major stationary sources as defined in section 33-15-15-01. The facility will not be a major stationary source and therefore is not subject to the requirements of this chapter. Given the minor source levels of the visibility impairing air pollutants, such as NOx, SO2, and PM2.5, it is expected that the Davis Refinery will not adversely contribute to visibility impairment within the three units of the Theodore Roosevelt National Park (nearest federal Class I areas).” (Note again the different standards for major and minor sources. And what about the plume rising hundreds of feet high above the park?)

Finally, here’s the summary at the end of today’s announcement:

“Summary: A complete review of the proposed project indicates that the facility is expected to comply with the applicable federal and state air pollution rules and regulations. Therefore, Meridian Energy Group Inc. has met all the requirements for obtaining a Permit to Construct and a draft Permit to Construct will be made available for public comment. Given the level of public interest, a 30-day public comment period (PCP) and concurrent 30-day EPA review period is required prior to permit issuance. In addition, the Department will hold a public meeting followed by a public hearing in Dickinson, N.D., for interested parties. Upon completion of the PCP, the Department will address all comments applicable to the state and federal air quality rules and regulations and make a final determination regarding the issuance of a Permit to Construct for the Davis Refinery.”

The public comment period begins Friday and runs through Jan. 26, 2018. Sharpen your pencils. Written comments should be sent to the North Dakota Department of Health, Division of Air Quality, 918 East Divide Ave, 2nd Floor, Bismarck, ND 58501-1947. Or e-mailed to AirQuality@nd.gov.

Mark your calendars now to attend the public hearing on the refinery at 5:30 p.m. (MST) Jan. 17 in Dorothy Stickney Auditorium in May Hall at Dickinson State University. That’s a big room. Let’s fill it up.

Here’s Tuesday’s announcement, if you want to take a look. It’s a few hundred pages.

I am reminded that President John F. Kennedy kept a small wooden plaque on his desk in the Oval Office for days like this. It read, “Oh, God, thy sea is so great and my boat is so small.”

Indeed, Big Oil and North Dakota government rule a mighty sea.