Judge hears arguments in appeal of Davis Refinery permit

Southwest Judicial District Judge Dann Greenwood listens to arguments Wednesday, Dec. 12, from attorneys representing the National Parks Conservation Association, Environmental Law & Policy Center and the Dakota Resource Council in the Stark County Courthouse in Dickinson. The groups are appealing the North Dakota Department of Health permit for the Davis Refinery. Tom Stromme / Bismarck Tribune
Southwest Judicial District Judge Dann Greenwood listens to arguments Wednesday, Dec. 12, from attorneys representing the National Parks Conservation Association, Environmental Law & Policy Center and the Dakota Resource Council in the Stark County Courthouse in Dickinson. The groups are appealing the North Dakota Department of Health permit for the Davis Refinery. Tom Stromme / Bismarck Tribune Tom Stromme / Bismarck Tribune

DICKINSON, N.D. — An attorney for conservation groups argued in court on Wednesday, Dec. 12, that air pollution estimates for a refinery proposed near a national park are underestimated, and health regulators should conduct a more comprehensive review.

Scott Strand, representing the National Parks Conservation Association and the Environmental Law & Policy Center, said an air quality permit for the Davis Refinery should be vacated and sent back to the Department of Health for further analysis.

The groups, along with the Dakota Resource Council, are challenging health regulators’ decision to issue a “synthetic minor source” permit to Meridian Energy Group for an oil refinery. That classification means the facility has the potential to emit less than 100 tons annually of certain pollutants.

Instead, the groups argue the refinery should be evaluated as a major source of air pollution, a process that requires a more rigorous review.

“This is not just a technical legal problem. The stakes are high here,” said Strand, pointing out that Theodore Roosevelt National Park is about three miles away.

But health officials argue they conducted a more in-depth review than was required due to the proximity of the national park.

Dave Glatt, chief of the department’s Environmental Health Section, said the agency followed an “extremely exhaustive process.”

“We don’t take any permit lightly,” said Glatt, who was among several health officials at the hearing on Wednesday. “Our job is to follow the science and the law.”

Strand argued that the health department should establish enforceable emission limits that are backed up by evidence from refineries in practice, not estimates. He said the permit does not provide a margin of error for spikes in pollution that can occur during interruptions at the facility.

Strand also argued the health department should insist on more robust monitoring, particularly for emissions from volatile organic compounds.

Alternatively, Strand said the health department should at least articulate the rationale for its legal conclusion in greater detail.

Maggie Olson, assistant attorney general who represented the health department, argued the judge should affirm the agency's decision.

Olson said the health department independently verified information provided by Meridian and responded to all comments received. She said regulators relied on methods approved by the Environmental Protection Agency.

Attorney Lawrence Bender, representing Meridian, did not make any oral arguments on Wednesday. In a court filing, Bender wrote that the Davis Refinery will have state-of-the-art air pollution control equipment and operational limits that reduce potential emissions.

Southwest Judicial District Judge Dann Greenwood took the matter under advisement and said he would issue a decision as soon as possible.

Meridian began site construction in July. The lawsuit does not prevent the company from constructing, but health regulators have said Meridian would be proceeding at its own risk.