Opponents of an oil refinery planned near Theodore Roosevelt National Park in North Dakota are imploring state regulators to give them a chance to explore whether the developer is being truthful about the project's size.
The Environmental Law and Policy Center and Dakota Resource Council filed the request Tuesday with the Public Service Commission, arguing that it's the commission's duty to "determine whether Meridian's new claim is credible."
Meridian Energy Group maintains it doesn't need a state siting permit from the commission because the $800 million Davis Refinery planned 3 miles (5 kilometers) from North Dakota's top tourist attraction will have a capacity of 49,500 barrels per day — just below the 50,000-barrel threshold that triggers a state review. However, the company previously gave a 55,000-barrel figure to the media, investors and government officials.
The Environmental Law and Policy Center and Dakota Resource Council maintain the commission should open a case and allow lawyers to investigate the true figure. The request is in the groups' formal response to Meridian's plea earlier this month that the commission throw out a complaint that the environmental groups filed in late June.
The issue of the refinery's capacity "is precisely the kind of factual question that cannot be resolved on a motion to dismiss," lawyers for the environmental groups argued.
Meridian has maintained that the 55,000-barrel figure came from as far back as 2 ½ years ago and is outdated. Meridian CEO William Prentice has submitted a signed affidavit saying the company has "no current plans" for any expansion beyond 49,500 barrels per day.
The environmental groups question whether the statement is "linguistic gymnastics" and whether Meridian is planning a "bait and switch" in which it builds a refinery and then applies for permission to expand beyond the state threshold after the plant is already in place.
Meridian maintains the commission has no authority under state law to wade into the dispute. The environmental groups dispute that.
"It would be nonsensical to hold that the PSC has jurisdiction over refineries with a capacity of 50,000 (barrels per day) but does not have the jurisdiction to determine if a specific refinery meets that threshold," their attorneys said.
They want the commission to open a formal review so that they can go after Meridian documents that might prove their case.
"Since many of the facts supporting jurisdiction are in Meridian's exclusive possession, the appropriate next step is to allow a reasonable period for discovery," they said.
Meridian has received permission from the state Health Department to begin construction, and site work started last month for the refinery the company hopes to begin operating in 2020. It faces other obstacles, however.
Three environmental groups have sued over a state air quality permit that asserts the refinery won't be a major source of pollution. The local zoning permit that Meridian received from Billings County is being challenged in court, as well. Meridian also still needs state water and wastewater permits, and it will need to prove once the refinery is built that it meets air quality standards.
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