North Dakota challenges pipeline developer argument vs. fine

BISMARCK, N.D. _ Staffers with the North Dakota Public Service Commission say there’s no doubt the developer of the four-state Dakota Access oil pipeline violated rules regarding reporting Native American artifacts.

Via attorney John Schuh, the staffers urged the three-member commission last month to move the case against Dallas-based Energy Transfer Partners forward, saying the company’s arguments against a proposed $15,000 fine are flawed.

The PSC maintains that ETP subsidiary Dakota Access LLC failed to get its approval before proceeding with construction in October on private land in southern North Dakota after the artifacts were found along the route.

Crews diverted construction so the artifacts weren’t disturbed. The State Historic Preservation Office concurred with the plan, but the PSC didn’t because it didn’t get information from the company until nearly two weeks after the artifacts had been discovered.

The PSC filed a complaint in November and proposed the fine, which pales in comparison to the $3.8 billion cost of the pipeline to carry North Dakota oil to a shipping point in Illinois.

ETP in late November decided to fight the fine. Company attorney Lawrence Bender said that, under state law, there needs to be a wilful violation of PSC orders, which he said didn’t occur. Bender’s motion also referenced public comments by PSC Chairwoman Julie Fedorchak, who said she was “disappointed” with ETP’s conduct but acknowledged it might have resulted from a miscommunication within the company. Bender said that “hardly rises to the level of wilful, intentional conduct … warranting a penalty.”

Schuh in his Dec. 15 response said ETP’s argument “appears to meander around a number of commission discussions with the public and the meaning of wilful with little contestation of the sufficiency of the complaint.” Schuch also said that requiring intent when it comes to a regulatory offence “would make the application of regulation so cumbersome that it would clearly frustrate its purpose.”

There is no timeline for the PSC’s decision on whether to grant the company’s motion to dismiss the case or schedule a hearing before an administrative law judge.

Completion of the 1,200-mile pipeline has been held up due to the federal government reassessing permitting near the Standing Rock Sioux’s reservation. The pipeline has been protested by the tribe and its supporters, who believe the project might harm drinking water and artifacts. ETP disputes that.